Pappu  Kalani Inder Bhatija Murder Case Judgement | Wound | Witness

1 1 Sessions Case No.

218/1999
Presented on : 27.12.1999
Registered on : 27.12.1999
Decided on : 29.11.2013
Duration : 12Y. 11M. 2D.
In the Court of Ad-Hoc Addl. Sessions Judge, Kalyan
(Presided over by Rajeshwari Bapat Sarkar)
Sessions Case no. 218/1999
Ex.
Complainant: State of Maharashtra,
(Through Vitthalwadi Police Station)
V/s.
Accused: 1] Shri Pappu @ Suresh Budharmal Kalani,
Age : 50 yrs,
Residing at Kalani Mahal, Khemani,
Ulhasnagar – 2.
2] Dr. Narendra Hemandas Ramsingani,
Age: 48 years,
Residing at Seema Apartment, VIII Floor,
Khemani, Ulhasnagar – 2.
3] Mohammad Arshad Mohammad Taaher Shaikh
Age: 32 years,
R/at: Maharashtra Housing Society,
Chawl No. 126, Room No. 1013,
Marve Road, Malad,
Mumbai 95.
5] Richard Robert Fernandes @ Satish Suvarna,
Age: 37 years,
R/at: Ghatkopar, Mumbai.
6] Bachhi @ Ramchandra Sitalaprasad
Pande,
2 Sessions Case No.218/1999
Age: 42 years,
R/at: Andheri, Mumbai.
7] Gabriel @ Baba Hana Moben,
Age: 41 years,
R/at: Andheri, Mumbai.
Appearances : Ld. Spl. P. P. Shri Vikas B. Patil for the State.
Ld. Adv. H. L. Bhatia & B. Jeswani for accd no.1
Ld. Adv. Smt. Shaikh for accused no. 2
Ld. Adv. Shri Pasbola for accused nos.3, 5 to 7.
Offenses : P/u/ss. 120(b), 109 r/w 302, 450, 353,
307, 506(II) r/w.34 IPC & u/s. 27(2) Arms Act.
JUDGMENT
(Delivered on this 29th day of November, 2013)
1/- Accused nos. 1 and 2 are charged with offenses punishable
under sections 120(b) of IPC and Section 109 r/w 302 of IPC.
Accused nos. 3 to 7 are charged for having allegedly committed
offenses punishable under sections 302, 450, 506(2), 353, 307
r/w. 34 of IPC and under section 27(2) of Arms Act.
2/- Prosecution case as emerges from the FIR and other police
papers is as follows :
i] Complainant PC Ghanshyam Vijaykumar Bendre, B.No.
1115 was assigned as body guard to deceased Inder Sunderdas
Bhatija from 17.03.1990. His duty hours were 8.00 a.m. to 8.00
p.m. He used to take entry at the register in the Vitthalwadi
Police Station while reporting on duty and also while going off
duty. He used to carry 410 musket butt no. 362 and 30 rounds
3 3 Sessions Case No.218/1999
with him while on duty.
ii] Complainant PC Bendre was assigned to the deceased Inder
as body guard in response to his application expressing
apprehension of threat to his life on account of previous enmity
between accused no. 1 Pappu Kalani, Himmat Kalani and his
supporters. His brother Ghanshyamdas had already been
murdered by accused no.1 Pappu Kalani, Himmat Kalani and
others.
iii] On 28.04.1990 complainant reported on duty at 8.15 a.m.
as usual. After taking entry at Vitthalwadi Police Station, he
reported on duty at the residence of deceased Inder in Camp No.
3, O.T, along with his musket and rounds for the same and
relieved the night duty guard PC. Darade at about 8.45 a.m. from
there, he escorted deceased Inder to his burner factory at about
9.50 a.m in his Maruti Car No. MH-05/A-6867. After parking the
car, deceased Inder went inside the factory office while the
complainant stood guard just outside the same. He was joined by
the watchman Shivbahadur Ramdhiraj Shukla.
iv] At about 12.15 p.m. one biscuit coloured Maruti Car came
from the direction of Hotel Pinto and stopped in front of the
office. Four persons alighted from the same. Two of them
approached the watchman Shivbahadur Ramdhiraj Shukla and
the complainant. They suddenly removed the revolvers from their
pockets and threatened threatened them not to move or make any
noise failing which, they threatened the complainant and the
watchman Shukla that they would shoot them. They also directed
complainant and watchman Shukla to look in front, failing which
they would shoot. Complainant tried loading the musket.
4 Sessions Case No.218/1999
However, the assailant who was pointing a revolver at the
watchman snatched the musket from the complainant’s hand and
flung it on the office roof.
v] In the mean while, the two remaining assailants had also
entered the office of deceased Inder. The watchman tried to run
away and enter from the side entrance to his office to warn Inder.
However, just then, they heard a sound of firing and also saw the
two assailants who had gone into the office rushing out. The two
assailants who had threatened the complainant and watchman
joined them and all four of them made good their escape in the
biscuit coloured Maruti Car towards the direction of Camp No.3.
The complainant observed that the car number was BLL-5647.
vi] Complainant then rushed back to the office of Inder and
found that he was lying in a pool of blood between the table and
the chair on the floor. He was bleeding from his head.
Complainant tried to bring him out to take him to hospital, but,
he could not succeed, therefore, he went to seek help. By that
time, a mob had gathered outside the office. 3-4 persons from
the factory came there and with their help, complainant picked up
deceased Inder and brought him out of the office. Just then, one
Mohan Bahirani, maternal uncle of the deceased, came there in a
Maruti Car. Deceased Inder was placed inside the van and taken
to Central Hospital. Complainant, in the mean while, tried to call
Vitthalwadi Police Station, but to no avail. He then told a young
boy to get the musket from the roof of the office. After taking the
same into custody, he went to the Central Hospital where Inder
was undergoing treatment. All his attempts to make a telephone
call to Vitthalwadi Police Station failed. Hence, the complainant
5 5 Sessions Case No.218/1999
then went to the Police Station and lodged the complaint Ex.270.
Offense was registered as C.R.No. I-89/1990.
3/- The investigation was handed over to PI Vilas Shripadrao
Jadhav. He deputed PSI Harihar for recording statement of the
injured Inder Bhatija who was admitted at the relevant time at
Sion Hospital. He also directed PSI Deshmukh to draw spot
panchanama, who in turn went to the spot and recorded the
same. PSI Deshmukh also attached articles from the spot namely
two pieces of tiles out of which one was stained with blood, one
pair of slippers stained with blood, one pair of spectacles and
three used cartridges and one live cartridge under spot
panchanama Ex.275. In the meanwhile information was received
through PI Bhere that injured had succumbed to his injuries in the
hospital. Investigation Officer Shri Jadhav also recorded
statements of witnesses including that of eye witness PW 13
Vijaybahadur Shukla. He also obtained copy of complaint given
by deceased Inder on 29.4.1999 and placed it on record. ASI
Popat Shivaji Kale in the meanwhile collected clothing of
deceased Inder Bhatija which was attached under panchanama
Ex.304. PSI Vitthal Vishwanath Harihar also recorded inquest
panchanama Ex.307. Subsequently, the offense was transferred to
Punjabi Colony Police Station.
ii/- DCP Subhash Bhalchandra Phadke subsequently took over
investigation. Initially charge-sheet was forwarded to the
designated TADA Court, Pune as accused were charge-sheeted
under sections 3, 18 of TADA Act. In the said charge-sheet
6 Sessions Case No.218/1999
accused nos.1 to 3 namely Pappu alias Suresh Kalani, Dr.
Narendra Hemandas Ramsinghani and Mohammad Arshad
Mohammad Taaher Shaikh were arraigned, however accused nos.
4 to 7 were shown absconding.
iii/- Subsequently accused Richard Robert Fernandes was
arrested in a case of Sahakarnagar Police Station, Pune on
3.4.1994. Therefore, DCP Phadke obtained his custody. His
confessional statement under provisions of TADA was recorded
and supplementary charge-sheet was sent up Ex.309.
iv/- On 03.12.1999 accused Bacchi Pande alias Ramchandra
Shitalaprasad Pande was arrested in another offense by the Delhi
Police. Once again DCP Phadke obtained custody of this accused
also. Confessional statement of this accused was also recorded
under provisions of TADA. DCP Phadke also sent a requisition
letter for conducting identification parade of said accused. After
completion of the same, another supplementary charge-sheet was
sent up against him Ex. 310.
v/- PW26 Shri Shivdas Bajrang Tagtode took over the
investigation from 5.12.1992. He seized the chair from the spot of
offense under panchanama Ex. 276 and also attached the clothing
of the deceased. After taking over investigation, he noticed that
there is mention of C.R.No. 159/1991 against accused Bacchi
Pande, Baba Gabriel and others registered at Khar Police Station
in which some TADA Sections had been applied. In the said case
both these accused had given confession in respect of commission
of present offense before the competent authorities. Shri Tagtode
thereafter recorded statements of various witnesses including
Ramesh Thavardas Chetwani, Kamal Bhatija, Shitaldas
7 7 Sessions Case No.218/1999
Harchandani, Vijaybahadur Ramdhiraj Shukla, Seema
Ramsinghani, Vasudeo Belani, Hiralal Ambwani, Inderlal
Ramsinghani, Chander Uttamchand Dalwani, Ashok Dhanraj
Sukhwani, Dhanraj Sukhwani, Tukaram Tardalkar, Mohan
Gangaram Rajale and Balu Kakade. He also issued a letter to the
concerned PI of Khar Police Station for handing over weapons and
other articles seized in CR no. 159/91 as well as the
accompanying documents like seizure panchanama, confession
etc. He then obtained custody of accused Mohammad Arshad
Taher Shaikh. It was disclosed from the statements of witnesses
and other documents that the accused nos. 1 Pappu @ Suresh
Kalani & 2 Dr. Ramsinghani were the masterminds and had
hatched a conspiracy to murder the victim Inder Bhatija. Hence,
he arrested accused no. 1 Suresh @ Pappu Budharmal Kalani and
Mohammad Arshad Taher Shaikh. Thereafter, he called the main
complainant PW4 Ghanshyam Bendre and Vijaybahadur Shukla
and showed them photo albums of sharp shooters from which
they identified accused Bacchi Pande and Baba Gabriel and also
accused Mohammad Arshad Taher who was already in custody.
Their supplementary statements were also recorded accordingly.
He also recorded statement of PW Sunderdas Bhatija Ex. 410,
widow Rekha Bhatija and other family members. He also
collected copies of NC and other cases registered against various
accused. He then dispatched seized articles for chemical analysis.
Thereafter, while in custody accused Mohammad Taher expressed
willingness to confess. Therefore, he was sent to Magisterial
Custody. Supplementary charge-sheet was then sent up against
the arrested accused.
8 Sessions Case No.218/1999
4/- After charge-sheet came to be filed in special designated
TADA Court under sections 3 and 18 of TADA Act. Accused
however moved an applications for discharge under sections 3 &
18 of TADA Act which were allowed by the designated TADA
Court. Therefore, the matter was transferred to this Court.
5/- My Ld. Predecessor Shri R.D. Tayade has framed charge
below Ex.105 against accused nos. 1 to 7. Accused pleaded not
guilty and claimed to be tried. Their defense as emerges from the
tenor of cross examination and statement u/s 313 Cr.PC is that of
total denial. According to the accused they have been falsely
implicated in the present case. I heard Ld. Special Prosecutor
Vikas Patil, Ld. Advocate Shri Bhatia for accused no. 1, Ld.
Advocate Smt. Shaikh for accused no.2, Ld. Advocate Shri Pasbola
for accused nos. 3 and 5 to 7. Ld. Special PP Shri Patil has
submitted written notes of argument Ex.558 in addition to oral
submissions made by him and I heard the other respective
Counsels at length.
6/- Against this backdrop, the following points arise for my
determination. My findings thereon are recorded herein below
for reasons that follow :
Points :
1] Whether prosecution proves that the death of deceased
Inder Bhatija was homicidal ?
2] Whether prosecution proves that accused nos. 1 and 2 on or
about 28.04.1990, in the house of accused no.1 Kalani Mahal,
Khemani, Ulhasnagar and in the house of accused no. 2 at Seema
9 9 Sessions Case No.218/1999
Apartments, VIII Floor, Khemani, Ulhasnagar, in order to avenge
the murder of Dulichand Kalani, uncle of accused no.1 and to
avenge insult of Hemantdas Ramsinghani, the father of accused
no.2, agreed with accused nos. 3 to 7 and absconding accused
Dinesh Pujari to do or cause to be done an illegal act, to wit.
commit murder of Inder Sundardas Bhatija and thereby
committed an offense punishable under section 120(B) of IPC ?
3] Whether prosecution proves that accused nos. 3,4,5,6 and 7
and absconding accused Dinesh Pujari on 28
th
day of April, 1990,
at about 12.15 p.m. at the office of Inder Bhatija situate at O.T.
Section-3, Ulhasnagar, committed the offense of murder of Inder
Sundardas Bhatija and that accused nos. 1 & 2 named above, at
their house at Kalani Mahal, Khemani, Ulhasnagar and Seema
Apartments, VIII Floor, Khemani, Ulhasnagar, respectively abetted
the said accused nos. 3,4,5,6 & 7 and absconding accused Dinesh
Pujari in the commission of the said offense of murder by
providing weapons, vehicles and money and which offense was
committed in consequence or as a result of the said abetment and
accused have thereby committed an offense punishable under
section 109 r/w. Section 302 of IPC ?
4] Whether prosecution proves that accused nos. 3 to 7 along
with absconding accused Dinesh Pujari on 28.04.1990, at the
office of Inder Bhatija at O.T. Section 3, Ulhasnagar, committed
house trespass by entering into or unlawfully remaining in the
building/office of Inder Bhatija, used as a human dwelling or for
custody of property with intention to commit the offense
punishable with imprisonment for life, to wit, murder of Inder
Sundardas Bhatija and thereby committed an offense punishable
10 Sessions Case No.218/1999
under section 450 r/w. Section 34 of IPC ?
5] Whether prosecution proves that accused nos. 3 to 7 along
with absconding accused Dinesh Pujari, on the aforesaid date,
time and place, during the course of the same transaction and in
furtherance of their common intention, committed criminal
intimidation by threatening the complainant Ghanshyam
Vijaykumar Bendre, Police Constable, B.No. 1115, a public servant
and prosecution witness Shivbahadur Ramdhiraj Shukla with
revolvers with injury to their person with intent to cause alarm to
them and thereby committed offense punishable under section
506(II) r/w. Section 34 of IPC ?
6] Whether prosecution proves that accused nos. 3 to 7 along
with absconding accused Dinesh Pujari, on the aforesaid date,
time and place, during the course of same transaction and in
furtherance of their common intention, assaulted and used
criminal force to the complainant Ghanshyam Bendre, P.C. B.No.
1115, a public servant, who was then posted as security guard for
protection of deceased Inder Sundardas Bhatija, in the discharge
of his duty as such public servant by snatching his rifle and
throwing the same on the ceiling of the room with intent to
prevent or deter the said public servant Ghanshyam Bendre from
discharging his duty as such public servant and thereby
committed an offense punishable under section 353 r/w. Section
34 of IPC ?
7] Whether prosecution proves that accused nos. 3 Mohd.
Arshad Mohd. Taher and accused no. 7 Gabrial @ Baba Hans
Moben on the aforesaid date, time and place, during the course of
same transaction and in furtherance of their common intention,
11 11 Sessions Case No.218/1999
along with accused nos. 4, 5 & 6 and absconding accused Dinesh
Pujari, entered into the office of Inder Sundardas Bhatija and did
commit murder of Inder Sundardas Bhatija by intentionally and
knowingly causing his death by firing at him from their revolvers
and thereby committed an offense punishable under section 302
r/w. Section 34 of IPC ?
8] Whether prosecution proves that accused no. 3 on the
aforesaid date, time and place, during the course of same
transaction, amongst accused no. 3, did an act, to wit fired at the
prosecution witness Shivbahadur Ramdhiraj Shukla in
furtherance of common intention or knowledge along with
accused nos 4, 5 & 6 and absconding accused Dinesh Pujari,
under such circumstances that if by that act accused had caused
the death of the said prosecution witness Shivbahadur Ramdhiraj
Shukla, accused would have been guilty of murder and thereby
committed an offense punishable under section 307 r/w. Section
34 of IPC ?
9] Whether prosecution proves that accused nos. 3 & 7 on the
aforesaid date, time and place, during the course of same
transaction, used deadly weapons i.e. revolvers and did commit
murder of Inder Bhatija and also fired at the prosecution witness
Shivbahadur Ramdhiraj Shukla and thereby committed an offense
punishable under section 27(2) of the Arms Act ?
10] What order ?
Findings :
1] In the affirmative.
2] In the affirmative against accused no. 1 only.
3] In the negative.
12 Sessions Case No.218/1999
4] In the affirmative as against accused nos. 3, 6 and 7 only.
5] In the affirmative as against accused nos. 3, 6 and 7 only.
6] In the affirmative as against accused nos. 3, 6 and 7 only.
7] In the affirmative as against accused nos. 3, 6 and 7 only.
8] In the negative.
9] In the affirmative as against accused nos. 3, 6 and 7 only.
10] As per final order.
Reasons :
7/- As to Point No. 1:
In order to prove that the death of deceased Inder Bhatija
was homicidal, prosecution has relied on testimony of PW22 Dr.
Rajesh Chandrakant Dere below Ex.369 and the Post-mortem
Report produced by him along with the original record in respect
of original Post-mortems maintained by the Sion Hospital. Same is
tallied from original and found correct. Dr. Dere is presently
attached to Sion Hospital as Sr. Lecturer, Deptt of Forensic
medicine and Toxicology. As such, the PM notes are produced
from proper custody. He stated that out of the doctors who
conducted post-mortem, one Dr. Fatnani who supervised the same
has since expired, remaining two attending doctors are not
traceable despite diligent search. This witness has also produced
the original record of P.M. Reports pertaining to the year 1990
bearing Nos. M-300 to M-400. True copy of the P.M. Report of
deceased Inder Bhatija running into six pages is filed on record at
Article 'A'. It also depicts the various spots on the body of the
deceased Inder where there were fire arm and other injuries in
the form of a sketch attached to the P.M. Notes. Same is tallied
13 13 Sessions Case No.218/1999
from the original produced in Court by this witness. In cross-
examination there is no serious challenge to this record.
8/- It appears from the record that this P.M. Report has not
been marked as exhibit though it is not challenged by the
accused. The same is tallied from the original record produced in
Court, therefore, it is produced from proper custody and by the
doctor presently attached to Sion Hospital. Therefore, I see no
impediment in marking it as exhibit even at this stage. Hence,
same is marked Ex. 584. All in all, therefore, there is absolutely
no impediment in reading this document into evidence in the
given circumstances.
9/- Having so held, a bare perusal of the Post-mortem report
shows (1) Entry wounds on the left tempo parietal region
admeasuring 1/2 cm dia; (2) Proptoses left eye; (3) Puncture
wound with surrounding staining left supra scapular region 1/4
cm dia; (4) Puncture wound right lumbar region over lateral
border of paraspinal muscles 1/4 cm dia; (5) Puncture wound
right chest post axillary line 1/4 cm dia in 9
th
ICS; (6) Puncture
wound right arm lat. aspect 1/4 cm with surrounding staining;
(7) Puncture wound right forearm lat. aspect; (8) Ecchy mosis +
under left shoulder 6 cm dia; (9) Puncture wound doisal aspect
right thumb near base 1/4 cm with staining; (10) Puncture
wound radial aspect right thumb; (11) Puncture wound base of
right index finger, radial aspect; (12) Puncture wound volar
aspect right index finger near PIP joint; (13) Puncture wound
radial aspect right index finger near DIP joint; (14) CLW right
14 Sessions Case No.218/1999
thigh ant. aspect in supra condylar region 3 cm X 1/4 cm with
bullet palpable laterally, surrounding staining +; (15) CLW left
middle finger 1 cm X 1/4 cm middle finger radial aspect; (16)
Puncture wound volar aspect left thumb with surrounding
staining with loss of nail.
10/- The post-mortem report also shows following autopsy
findings :
[1] Bullet injury, occipital region 3 cm to the left of
midline, measuring 1 X 0.8 cm; [2] Bullet injury, left
suprascapular region 3.5 cm from midline. Wound of entry with
collar of abrasion oval, towards the midline, measuring 1 cm X
0.5 cm with brusing 10 X 4 ½ cm with bullet wound towards the
inner aspect of bruise; [3] Punctured wound (slit) on the back,
right side, 15 cm from midline, 1 cm dimension with posterior
wall abraded and sliced front edge of the wound inverted. Bruise
4 X 4 cm around the wound. This is the entry wound of wound
no. 4 (a firearm injury); [4] Firearm injury, exit wound of no.(3)
right lumbar region 6 cm away from midline and measuring 1 ½
cm X 1 cm. Skin is split at lower border and margins are everted.
Faint bruising is seen around, measuring 5 X 4 cm. Distance
between no.(3) and wound no.(4) is 18 cm; [5] Firearm injury,
entry wound over right forearm (outer aspect) lying 5 ½ cm
below elbow joint and measuring 1/2 cm with collar of abrasion
measuring 1/2 cm on either side. Faint bruising measuring 5 X 6
cm beginning from the wound and extending upwards at the
elbow; [6] Firearm injury corresponding wound of exit to wound
no.(5) seen on post aspect of right arm 6 cm above the olecranon
15 15 Sessions Case No.218/1999
process, measuring 1 X 2 X 0.8 cm with surrounding bruise
measuring 5 X 3 cm; [7] Firearm injury, entry wound at base of
right thumb 1/2 cm dia with a collar of abrasion of 0.2 cm
surrounding the wound; [8] Exit wound corresponding to injury
at no.(7) 1/2 cm dia, lacerated and everted edges loping 2 cm
away from wound of entry; [9] Firearm injury, entry wound at
base of right index finger (dorsaradial aspect) measuring 1 X 0.7
cm with collar of abrasion of 0.4 cm situated towards the knuckle;
[10] Corresponding exit wound to no.(9) at the 1
st
inter
phhalangeal joint, vertically placed measuring 1.4 X 0.4 cm and
placed 4 cm away from wound of entry; [11] Lacerated crescentic
wound on dorso radial aspect of right index finger at terminal
inter-phalangeal joint with convexity towards the nail and
measuring 1 X 0.50 flap evulsing towards the nuckle; [12]
Firearm injury, entry wound in nailbed of left thumb at the base
of the nail on radial aspect measuring 0.6 X 0.4 cm (with loss of
nail plate); [13] Firearm injury corresponding exit wound to no.
(12) on volar aspect of left thumb, 1 X 0.5 cm with edges everted
and bruised all along the phalynx; [14] Firearm injury, entry
wound at base of the nail, left middle finger (inner aspect) 0.3
cm; [15] Firearm injury, corresponding exit wound to no.(14) on
volar aspect of same finger 1.5 X 1 cm edges everted and bruised
all along around the phalynx; [16] Lacerated wound 3 cm X 0.6
cm dying 4 cm above right knee cap, horizontally placed with 0.5
cm abrasion around the inner and upper edge, depth of wound –
7 cm towards outer aspect; [17] Proptoses of left eye, left eyeball
protruding with massive swelling of both eyelids with
subconjunctural haemorrhage all around the eye; [18] Ecchymose
16 Sessions Case No.218/1999
on left arm above post axillary fold, measuring 6 X 4 cm bullet
lodged beneath in subcutaneous tissue; [19] Therapeutic injuries
– 2 venesection marks on both legs (one on each) above the
medial malleolus, clean incised wounds, 2 cm each, left wound
sutured, 1 venesection mark over left cubital fossa, 2 cm –
sutured.
11/- Examination of skull reveal that on reflecting the scalp,
haematoma lying beneath the scalp corresponding to external
injury no.(1). Corresponding to the same is a wound in the skull
(occipital bone) measuring 1.8 X 0.8 cm, outer table of bone
chipped off by 1 cm.; Subarachnoid haemorrhage ++, more
marked over left tempow parietal region. On removing brain and
dura, seen in ant. wall of left temporal fossa are bone chips
dupion into the left eye ball, the defect measuring 2 X 1.5 cm.
12/- Similarly, systematic examination in brain reveals
subarachnoid haemorrhage ++, more marked over left tempow
parietal region, extending over cerebellum. On c/s: laceration of
left occipital lobe of the brain. Bullet track is seen going through
occipital and temporal lobe and entering the left orbit through
ant. wall of left temporal fossa carrying the bone chips along with
it. Bullet recovered was lodged in the left orbit. Lungs also were
partially collapsed. The P.M. Report mentions cause of death as
shock following fire arm injury.
13/- As far as inquest panchnama Ex. 307 is concerned, the
prosecution has examined PW1 Ramesh Arjunrao Bhinge below
17 17 Sessions Case No.218/1999
Ex.263. He is arrayed as inquest panch. However, he has resiled
from the prosecution case. In his cross-examination, the only fact
admitted by him is that he has seen the body of deceased with
blood stains on pant and shirt. He also admitted having seen
blood oozing from the forehead of deceased Inder. He denied
having counted 16 injuries as mentioned in the inquest
panchanama. He has claimed ignorance about the contents of the
same. However, what clearly emerges is that the police had
recorded inquest panchanama after showing this witness the dead
body of deceased Inder and that the same had injuries on the
same. The PW 16 Vithal Harihar has also deposed on this point.
He has identified the signatures of panchas and his own on the
inquest panchnama and also deposed about the correctness of the
same. As such, from the testimony of both PW 1 & 16 read
together, I am inclined to hold that the inquest panchnama is duly
proved and there is no impediment in reading the same in
evidence.
14/- Thus, the nature and extent of injuries as clear from the
post-mortem report, which incidentally is not seriously
challenged, clearly shows that the death was of homicidal nature.
It is nobody's case that the deceased had committed suicide or
that he met with an accidental death nor is there any such
suggestion even. In the circumstances, I see no impediment in
answering Point no.1 in the affirmative.
15/- At this juncture, it would be pertinent to note that the
prosecution case is that the accused nos. 3 to 7 committed murder
18 Sessions Case No.218/1999
of deceased Inder Bhatija at the behest of accused nos. 1 & 2 on
account of political rivalry. In other words, it is alleged that the
accused nos. 1 & 2 are the masterminds whereas accused nos. 3
to 7 were the assassins. Hence, accused nos. 1 & 2 are charged
only with the offense punishable u/s 120B IPC as well as section
109 r/w 302 IPC, as against accused nos. 3 to 7, who are alleged
to have committed the offenses of murder, house trespass,
criminal intimidation, obstruction of police officer in his duty,
attempt to commit murder. As such, I feel it would be expedient
to bifurcate the prosecution case as against accused nos. 1 & 2 on
one hand and that against accused nos. 3 to 7 on the other.
16/- Apart from this, it would also be worthwhile to note the
background circumstances of the present case. PW 12 Sunderdas
Bhatija and PW 26-A Kamal Bhatija, the father and brother of
deceased Inder Bhatija respectively, PW 27 Shivkumar Saraswat
and PW 29 Jamil Ahmed Juber Khan have deposed on this point.
17/- PW12 Sundarlal, the father of deceased Inder has been
examined below Ex. 286. His testimony throws light on the
antecedents of the present case and the relationship inter-se
between parties. He has stated the entire background
circumstances of the present case. He stated that, he had first
migrated to India after partition between India and Pakistan and
had stayed in the Haridwar, Uttaranchal for sometime. He shifted
to Ulhasnagar in 1951 and started a unit for manufacture of
socks. He was also member of the Municipal Council from 1978
to 1992-1995. He further deposed that in 1986 Pappu Kalani
19 19 Sessions Case No.218/1999
became a member of the Ulhasnagar Municipal Council and
thereafter, was elected as President. He remained President of
Ulhasnagar Municipal Council till he became MLA in 1990 as a
Congress candidate. In the said election one Shital Das was the
rival BJP candidate. Admittedly, son of this witness Ghanshyam
was murdered on the voting day of the said election. Said
deceased Ghanshyam and PW 12 were at different booths. After
hearing of a quarrel between his son Ghanshyam and two other
persons, he went to the spot. He further deposed that the uncle
of accused No.1 Dunichand was also murdered earlier. There was
a belief that the two brothers-in-law of this witness viz – Gop
Behrani and Mohan Behrani had used the vehicle of deceased
Inder in the said incident. Deceased victim in the present case
Inder was murdered about two months after murder of his first
son Ghanshyam. Till this point, testimony of this witness is more
or less unchallenged. Admittedly, the accused no. 1 is a close
relative of the deceased victim Inder as well as his family i.e PW
12 Sunderdas & 26-A Kamal.
18/- The evidence of PW 26-A Kamal Bhatija is also along
similar lines. He has also stated the backdrop of the present
incident. In addition, he has spoken about certain incidents that
occurred before and after the murder of his other brother
Ghanshyamdas. The case arising out of the murder of
Ghanshyamdas bearing Sessions Case no. 219/99 is also pending
and has been stayed by the Hon'ble Supreme Court. He stated
that there were rival factions within the Congress within
Ulhasnagar. Due to dispute arising out of the Presidentship of the
20 Sessions Case No.218/1999
UMC, there was an agreement to share the same for 2 ½ years
each between the accused no. 1 and the uncle of deceased Inder,
one Gop Behrani. PW 12 Sunderlal, his father, was a supporter of
Gop Behrani. Initially, he also supported accused no. 1. However,
subsequently, the relations between them as well as deceased
Ghanshyamdas and Inder were strained. At the end of his tenure
of 2 ½ years, the accused no. 1 refused to vacate the office, which
created a further rift in the two factions or groups. In the next
election, accused no. 1 had accosted the deceased Ghanshyamdas
on the voting day itself and threatened him. On the very same
day, he was murdered outside his own Hotel Pinto Park in front of
his other brother Inder. Within two months of this incident, the
said Inder was also murdered as he was the First Informant and
the eye witness in the case arising out of murder of his brother
Ghanshyamdas. Hence, there is a bitter rivalry between the
accused no. 1 and the family of the PW 12 Sunderdas and his
brothers in law, the Behranis.
19/- This witness has also deposed about an incident on
27.11.1987, when several armed persons came to the hotel along
with accused no. 1 and his brother Narayan, searching for
Ghanshyamdas and not finding him, had ransacked the hotel and
damaged the same. This witness also deposes about how accused
no. 1 was directing his companions to kill Ghanshyamdas
wherever they found him.
20/- In his cross examination, minor embellishments are brought
on record. Also, admittedly, he was in jail in a case u/s 420 IPC in
21 21 Sessions Case No.218/1999
Gujarat. However, there is no dent in his over all testimony. Thus,
from the over all evidence of this witness, it appears that neither
his complaints were entertained by the police nor his statement
was recorded immediately due to absolute fear of the accused no.
1 Pappu Kalani. His statement in the murder cases of his brothers
Ghanshamdas and Inder were only recorded much later on
15.1.93 & 25.2.93, though he had approached the police several
times and also raised grievance in respect of the two murders
several times. Also, there is nothing to shake the testimony of this
witness on the point of incident as stated by him.
21/- Prosecution has also examined PW 27 Shivkumar Saraswat
below Ex. 447. He was working as a Tax Collector in UMC and
was also a union leader of the UMC staff in 1978. He stated that
the accused no. 1 had been rusticated from the Chandibai
College. On 13.1.1991, the brother of accused no. 1 Narayan had
taken a female employee of Tax department of UMC to Seema
Resort, a hotel owned by accused no. 1. The staff member had
complained to him on 15.1.1991. He then accompanied her to
Central PS and lodged complaint. However, hearing of this,
Narayan threatened him with a revolver and accused no. 1 had
also called him to his chamber. After he tendered apology, the
complaint was withdrawn. This witness also lodged a complaint
in respect of threat by said Narayan. However, no action was
taken because of terror of accused no. 1. In cross examination of
this witness apart from vague contrary suggestion about the
entire incident being false, nothing is brought on record to shake
the testimony of this witness.
22 Sessions Case No.218/1999
22/- The prosecution also examined PW28 Pradeep Tekwani and
PW 29 Jamil Ahmed Zuber Khan to establish the circumstances
and atmosphere prevailing at the time when accused no. 1 Pappu
Kalani was President of UMC between 1986 and 1990 and
thereafter when he became an MLA. PW 28 has resiled from the
prosecution case totally and nothing of any help to the
prosecution is elicited from his testimony. PW 29 Jamil also was
declared hostile. However, his cross examination u/s 154
Evidence Act by Ld. Spl PP is revealing. In the course of the same,
he admitted that he was a supporter of Shiv Sena and BJP at the
relevant time. In 1992, this witness has also contested the
Municipal election. However, he denied having received threats
from accused no. 1 Pappu Kalani and his brother Narayan.
Further on, he admits being called to the Seema Resort. However,
once again, he denied having been threatened by accused no. 1
though he was admittedly present there. He also denies having
been told by the then PI of Central Police Station Shri Faruki to
work for accused no. 1. In the very next paragraph, he admits that
he had sought police protection during the election period and
inspite of being granted the same, PI Faruki had detained him u/s
151 CrPC. Finally, he admits having gone back to U.P out of fear
and having returned only after accused no. 1 Kalani was arrested.

23/- What emerges from his admissions in cross examination is
that this witness was a candidate for the opposition party i.e BJP
and Shivsena. Though he denied being threatened, it seems he is
not telling the entire truth as he admitted being given police
protection at his own request and also being detained u/s 151
23 23 Sessions Case No.218/1999
CrPC. He also admitted being called to Seema Resort, though he
denied being threatened. However, his unequivocal admission
that he returned to his native place till arrest of accused no. 1 out
of fear speaks volumes about his state of mind. Obviously, he was
pressurized and was apprehending some threat. Else, it is illogical
why he would ask for police protection and also finally go to his
native place till arrest of accused no. 1. Read as whole, therefore,
his testimony also helps the prosecution to show that there was
utmost fear, nay terror, in the minds of people about accused no.
1 at the time. Apparently, even the police machinery was siding
with the accused no. 1. This appears to be so because this witness
admitted that the police refused to record his complaint while at
the same time detained him under section 151, even while he was
under police protection. From the testimony of this witness, the
situation that prevailed during the said period when the accused
no. 1 was a Councillor and subsequently President of UMC as well
as after he became an MLA is quite clear.
24/- Ld. Spl.P.P Shri Patil rightly pointed out that from the
evidence of these witnesses, it is manifest that this is an extra
ordinary case where there was such terror in the minds of the
people that no one would dare utter a word against the accused
no. 1. Any complaints to the police were not entertained. Any
person aggrieved due to wrongs committed by even family
members of the accused no. 1 were silenced. The members of
public were even assaulted and threatened to such an extent that
even some persons like PW Jamil had to go to their native place
and had the courage to return only after accused no. 1 was
24 Sessions Case No.218/1999
arrested. In other words, it appears that accused no. 1 had
unbridled power over citizens at large in the locality and even
over the police machinery which was apparently working in his
favour. Ld. Spl P.P Shri Patil repeatedly urged that in this scenario,
the evidence on record is required to be assessed with proper and
deep insight keeping in mind the terror that the accused no. 1
invoked in the minds of ordinary citizens. He also pointed out
that the accused no. 1 had more than 26 criminal offenses
registered against him out of which 8 are arising out of offenses
of murder, extortion, etc registered against him and 8 were under
TADA. Some of these have been concluded and the accused no. 1
has been acquitted for want of evidence as witnesses have turned
hostile. A list of cases against accused no. 1 and other accomplices
in some case is filed on record at Ex. 585. He submitted that on
more than one occasion, even police personnel have been
murdered or injured along with victims. However, accused no. 1 is
on bail in all the pending cases. In spite of this, as recently as up
to August 2013, fresh offenses have been registered, which clearly
shows that he has even repeatedly shown utter disregard for the
conditions of bail and is inclined towards taking law in his own
hands. According to Shri Patil, this history of repeated offenses
itself shows that the accused no. 1 had scant regard for the law of
the land. Not only this, but also, the manner in which the
incidents have occurred indicates total belligerence and ‘devil
may care’ attitude. The accused no. 1 in other words, has
unleashed a reign of terror leading to ‘gundaraj’ in Ulhasnagar by
creating an impression that he cannot be touched by any law or
enforcement agency. Hence, according to Shri Patil, the court
25 25 Sessions Case No.218/1999
must also consider why witnesses turn hostile and refuse to say a
word against accused no. 1 in not one but dozens of cases. In the
circumstances, the evidence on record is required to be scanned
in a circumspect fashion considering this background situation.
25/- Advocate Bhatia for the accused no. 1 argued vehemently
that what the law requires is hard facts and evidence. Mere
allegations as made by the prosecution about reign of terror
would necessarily have to be ignored when devoid of any
evidence. Moreover, according to him, witnesses examined on this
point are closely associated with the deceased. Hence, their
testimony cannot be believed in any case.
26/- No doubt PW 12 and 26-A are relatives of the deceased,
however, it must be kept in mind that PW 27 & 29 are
independent witnesses. As such, the submissions of Adv. Bhatia on
this point are without any substance. The witnesses have no
reason to lie. In fact, no material is brought on record as to why
they should not be telling the truth or deposing against accused
no. 1. On the contrary, it appears from the overall tenor of their
testimony that they are still under some kind of fear or pressure
and it is only in the form of some of their admissions elicited in
cross examination u/s 154 Evidence Act that gives us a peep into
the reign of unabashed terror that was unleashed by the accused
no. 1. The position at the time when the incident occurred has
been stated by all the above 4 witnesses. There are repeated
references to fear in the minds of all these witnesses. The
background is thus, quite apparent as already discussed above.
26 Sessions Case No.218/1999
27/- In this perspective therefore, it would be proper to now
turn to the evidence on record.
As to point no. 3 to 9:
28/- As the evidence to be scanned on the point nos. 4 to 9 is
common, they are taken up together first for discussion in order
to avoid repetition.
29/- For an offense to be proved under section 302 of IPC, it is
incumbent on the prosecution not only to prove that the death
was homicidal but also that the death was caused by accused and
none else. In other words, the burden is on the prosecution is to
establish the chain of evidence which points unwaveringly to the
guilt of the accused beyond all reasonable doubt. This can be
done through direct or circumstantial evidence.
30/- As far as direct evidence goes, the prosecution case rests
primarily on the evidence of PW4 P. C. Ghanshyam Vijaykumar
Bendre B. no. 1115 Ex. 269, the police body guard assigned to
deceased Inder Bhatija. He is the First Informant and eye witness
to the incident. Though PW13 Vijaybahadur Ramdhiraj Shukla Ex.
288 is also examined as an eye witness as far as the actual
incident is concerned, he has resiled from the prosecution case
and stated that he did not see to who had fired at the deceased
Inder. He claims to have gone to call one Anil when the incident
occurred. As such, no material of any use is elicited even from his
cross-examination under 154 of Evidence Act.
27 27 Sessions Case No.218/1999
31/- PW4 PC Ghanshyam Vijaykumar Bendre, B.No. 1115 i.e.
the complainant is the material witness in present case. He has
duly proved the complaint Ex. 270 vide his testimony below Ex.
269. In his examination-in-chief, he has more or less reiterated
the contents of the complaint almost adverbatim. In addition, he
also described the office of deceased Inder Bhatija where the
incident occurred. The same is a 10 ft. X 10 ft. room with one
front door facing the North i.e. road side. It also has two side
doors to enter the factory out of which the right side door opens
in a lane leading to the factory. The evidence on the point of the
description of spot of offense is not at all challenged.
32/- This witness has also described the four assailants being 25
to 30 years of age. He also identified accused no. 3 Mohammad
Arshad and accused no. 7 Gabriel @ Baba by pointing to them in
the Court itself. This witness has also categorically stated that
these two accused entered the office cabin of deceased Inder
Bhatija. This witness has also identified accused no. 6
Ramchandra @ Bachhi Pande who had aimed a revolver at him
and threatened him into silence whilst Mohammad Arshad and
accused no. 7 Gabriel @ Baba entered the office of the deceased
Inder. The fourth assailant was not before the Court, according to
this witness. Further on, this witness has stated that he had
identified accused Bachhi at the T.I. Parade held at Mumbai and
accused Gabriel at the T.I. Parade held at Pune. He also
categorically stated that he had been shown 20-25 photographs
by the Investigation Officer before the accused came to be
arrested.
28 Sessions Case No.218/1999
33/- In cross-examination, PW4 PC Bendre admitted that the
police were present at Central Hospital before he reached there.
He also stated that Vitthalwadi Police had also visited the
hospital. He further states that he stayed in hospital for 5-10
minutes and thereafter went to the Vitthalwadi Police Station to
lodge complaint Ex. 270. He remained at the police station where
his complaint was being recorded till about 2.00 to 2.15 p.m. on
the date of incident.
34/- As far as description is concerned, he has stated that though
he is aware that in a case of unknown assailants their description
is required to be mentioned in the FIR, he had stated at the time
of recording his FIR Ex. 270 that he had not seen the assailants
who entered the complainant’s office clearly. There is also a
suggestion to this witness that he himself was not at all on duty at
the time of incident and that a false report has been lodged by
him to save his job. In cross examination, several questions were
put to this witness on the point of Identification Parade. However,
no material to shake his testimony on the point of identification is
brought on record as all contrary suggestions are categorically
denied. It is an admitted fact that the papers pertaining to the T. I.
Parade are not filed on record. However, what is pertinent to note
is that in the cross examination, there is denial that both the
identification parades at Mumbai and Pune were actually held.
This is evident from the entire tenor of cross examination, where
in questions are put to the witness about the exact procedure of
conducting the T. I Parades. However, there is no whisper of any
denial of the same being conducted. What is put to this witness is
29 29 Sessions Case No.218/1999
that it was not conducted as per the criminal manual, which are
flatly denied. Suffice it to say, that this witness has clearly stated
that he had identified accused Bachchi Pande and Gabriel @ Baba
at the same held in Bombay and Pune respectively.
35/- The main plank of attack of Ld. Counsel Pasbola
representing accused nos. 3 and 5 to 7 is that the identification by
PW4 Ghanshyam Bendre of the accused before the Court cannot
at all be relied upon mainly on the ground that same was almost
15-16 years after the incident. Ld. Advocate Pasbola also pointed
out that there was no mention of the description of any of the
assailants in the FIR Ex. 270 except that one of the assailants was
dark and stout and all the four assailants were aged between
25-30 years. He further agitated that in the case of unknown
assailants such a vague description and subsequent identification
after 16 years could not at all be believed and therefore, is
definitely not sufficient to establish the link between the alleged
offense and the present accused. He also drew attention to the
admitted fact that the relevant documents of the T. I. Parade have
not been produced on record. As such, there is no corroboration
of the identification in Court. Finally, he argued that in any case,
the PW 4 P. C. Bendre was a police witness. Hence, on this ground
also, his testimony cannot be accepted. All in all, therefore,
according to the Ld. Counsel Shri Pasbola, the prosecution
evidence on the point of identification of accused Baba @ Gabriel,
Bachchi Pande and Shaikh Arshad was not at all cogent or
credible and was not at all sufficient to establish the nexus
between the alleged offense and the present accused.
30 Sessions Case No.218/1999
36/- In support of his submissions, Advocate Pasbola on behalf
of accused nos. 3,6 and 7 has relied on following authorities :
1] Criminal Application No. 1178/2011 (The State of
Maharashtra Vs. Murli Ramchandra Purswani & Ors.) wherein it
was held that:
'It can thus be clearly seen that the only evidence on
which the prosecution seeks to rely is that of identification parade
of accused nos. 8 and 9. In so far as the other accused are
concerned, they are alleged to be conspiracy with the main
accused. In so far as the identification parade is concerned,
though the accused no. 8 is arrested on 14/01/1995 i.e. 4 ½
years from the date of incident, the identification parade was
conducted on March 1995. The accused no. 9 was arrested on
13
th
November, 1995 and his identification parade was conducted
20
th
December, 1995. The learned Trial Court has found that the
identification parade which is conducted after long gap from the
date of incident and also after the considerable length from the
date of arrest was not believable and trustworthy. We do not find
that the view taken by the learned Trial court is either perverse or
erroneous.'
2] 1982 Supreme Court Cases (Cri) 356 (Manzoor Vs. State
of Uttar Pradesh) wherein it was observed that:
'If at the earliest opportunity the homeguards did not
mention any identifying features of the culprits when they were
examined by PW 12, it is difficult for us to believe how PW 2
could have identified both the appellants nearly two months later
on November 17, 1978. It has to be noted that the appellants
31 31 Sessions Case No.218/1999
have stated in the trial court that they were shown to the
witnesses before the identification parade was held. In these
circumstances we are not impressed with the evidence of PWs 1
and 2.
. . . . . 'In these circumstances, we are of the opinion that
the prosecution has not proved the guilt of appellants
satisfactorily beyond all reasonable doubt.'
3] 1987 CRI.L.J. 991 = AIR 1987 Supreme Court 1222
(Subash and Shiv Shankar Vs. State of U.P.) wherein it was held
that:
'As the conviction of Shiv Shankar is based solely with
reference to his identification at the identification parade, he has
to be given the benefit of doubt and acquitted in the light of our
finding.'
4] 1981 CRI.L.J. 1014 : AIR 1981 Supreme Court 1392
(Wakil Singh and others Vs. State of Bihar) wherein it was
observed that:
'In the instant case we may mention that none of the
witnesses in their earlier statements or in oral evidence gave any
description of the dacoits whom they have alleged to have
identified in the dacoity, nor did the witnesses give any
identification marks viz., stature of the accused or whether they
were fat or thin or of a fair colour or of black colour. In absence
of any such description, it will be impossible for us to convict any
accused on the basis of a single identification, in which case the
reasonable possibility of mistake in identification cannot be
32 Sessions Case No.218/1999
excluded. For these reasons, therefore, the trial court was right in
not relying on the evidence of witnesses and not convicting the
accused who are identified by only one witness, apart from the
reasons that were given by the trial court. The High Court
however has chosen to rely on the evidence of a single witness,
completely over looking the facts and circumstances mentioned
above. The High Court also ignored the fact that the
identification was made at the T.I. Parade about 3 ½ months after
the dacoity and in view of such a long lapse of time it is not
possible for any human being to remember, the features of the
accused and he is, therefore, very likely to commit mistakes. In
these circumstances unless the evidence is absolutely clear, it
would be unsafe to convict an accused for such a serious offence
on the testimony of a single witness.'
5] 1998 Supreme Court Cases (Cri) 1527 (Ravindra alias
Ravi Bansi Gohar Vs. State of Maharashtra and others) wherein
the Hon'ble Apex Court observed that:
'A vital factor for determining the value of an
identification parade is the effectiveness of the precautions taken
by those responsible for holding them against the identifying
witnesses having an opportunity of seeing the persons to be
identified by them before they are paraded with other persons
and also against the identifying witnesses being provided by the
investigating authority with other unfair aids or assistance so as
to facilitate the identification of the accused concerned.'
6] Supreme Court of India, Cri. Appeal No. 172-174 of
33 33 Sessions Case No.218/1999
1981 (State of Maharashtra Vs. Subhaiya Kanak Maniah & Ors.)
wherein it was observed thus:
'Throughout the contention of the defence had been
that these witnesses did not give any descriptive particulars of the
accused and therefore they had not seen the persons concerned.
It is only at a later stage after being tutored that they gave some
particulars and proceeded to identify some of the assailants in the
identification parade.
. . . . .Further the circumstances show that the
incident must have occurred within seconds rather in a flash of
time and it is highly doubtful whether these witnesses would have
been in a position to identify any of the culprits. We can not say
that the reasons given by the High Court for not relying on the
evidence of these main witnesses becomes doubtful and not
acceptable, then the other circumstances relied upon by the
prosecution do not advance the prosecution case.'
37/- To counter this, Ld. Special PP Shri Vikas Patil argued that
in the circumstances under which PW4 Ghanshyam Bendre had
seen the assailants, he was not likely to forget them or their faces
for the rest of his life. Shri Patil also submitted that in the entire
cross examination there was no challenge to the deposition of
PW4 that one of the assailants i.e. accused no.6 Ramchandra alias
Bacchi Pande had revolver with him and threatened him with the
same along with one more accused, while accused Mohammed
Arshad and Baba @ Gabriel had entered the cabin of deceased
Inder Bhatija. Obviously, it was a life and death situation for PW4.
He has also deposed about his musket being snatched out of his
34 Sessions Case No.218/1999
hand and being flung on the roof by the accused who was aiming
at the watchman. As such, it is unlikely that the victim, who had
been held at gun point by some one and was on the verge of
death, would forget the face of his tormentor till his last breath.
Moreover, Ld. Spl. PP also pointed out that in the cross
examination of this witness and also other prosecution witnesses
there is not a single reason brought on record as to why he would
falsely implicate the present accused except vague suggestion that
he was deposing falsely at the instance of his superiors, which of
course is flatly denied. Also, the question arises as to why even his
superiors would falsely implicate the accused in this case. There
is no whisper about previous enmity or ill will against any of the
accused. In the circumstances, according to Spl. PP Patil there is
no reason why substantive evidence of identification before the
Court should not be accepted. As far as evidence of T.I Parade is
concerned, he argued that the same in any case is only a
corroborative evidence. Hence, even if the same is not placed on
record, this by itself does not affect the testimony of the eye
witness PW 4 Bendre. In fact, when the substantive evidence in
the form of identification before the Court is cogent and reliable,
same ought to be accepted. He argued that though the PW 4
Bendre was a police man, that does not by itself make his
testimony unbelievable. He was at the spot of incident in the
course of his duty as a body guard for the deceased. As such, his
presence at the spot is quite natural and so is his evidence. The
FIR was lodged by him immediately after he recovered his musket
and sent the deceased to the hospital. Hence, there is no
impediment in relying on the evidence of this witness.
35 35 Sessions Case No.218/1999
38/- To buttress his submissions he relied on authorities
reported in 2012 ALL MR (Cri) 706 (S.C) (Omkar & Anr Vs State
of U.P) wherein the Hon'ble Supreme Court accepted the evidence
of closely related witness and held the same to be cogent,
trustworthy and reliable to base conviction. It is also observed
that if the evidence of closely related witnesses has a ring of truth,
is cogent, credible and trustworthy, it can be relied on. Similar
ratio is also laid down in the case of Ashok Ganapati Patil
reported in 2012 ALL MR (Cri) 455.
39/- Ld. Spl. PP Shri Patil also placed reliance on authorities
reported in 2013 ALL MR (Cri) 2416 (Babubhai @ Zaverchand
Harjivan Sheth Vs. The State of Maharashtra)
TIP belongs to the stage of investigation and
essentially governed by Section 162 of the Criminal Procedure
Code and does not constitute the substantive evidence. Hence
cannot be decisive factor for recording conviction. There is no
provision in the Code of Criminal Procedure to make it
compulsory for the investigating agency to hold test identification
Parade because the substantive evidence is identification of the
culprit before the Court. Failure to hold the TIP would not make
the evidence of identification in the of identification in the Court
absolutely meaningless or inadmissible. The evidence of TIP
provides only corroboration to the main evidence before the Court
when required by way of the abundant precaution in view of
Section 9 of the Indian Evidence Act. The object of holding TIP at
the stage of investigation is to help the investigating agency to
assure itself that the investigation is proceeding at right direction,
36 Sessions Case No.218/1999
on correct lines. The purpose of the holding prior test
identification is to test trustworthiness of the witness at the stage
when investigation is still at its preliminary stage. The holding of
the T. I.P is felt necessary in a case wherein the accused were not
known to the victim since prior to the incident. The accused
cannot as of right claim that the test identification parade must be
held at the stage of investigation. The trial Court is not precluded
from accepting the evidence of the identification of the offender
on the basis of sworn testimony in the Court without insisting
upon the corroboration. Though safe rule of prudence is to look
for corroboration. It is for the learned trial judge, as a Court of
fact, who has opportunity to see and have live experience of
watching demeanor of the witness while he or she is deposing
before the Court, to attach the appropriate weight to the evidence
of the witness. In an appropriate case, the trial Judge may accept
the evidence of identification in the Court even without insisting
upon the corroborative evidence.
40/- He also placed reliance on authority reported in 2013 ALL
MR (Cri) 475 (Subramani Mandar Konar & Anr. Vs. The State of
Maharashtra) wherein similar observations were laid down. It
was thereafter held that merely necause the evidence of S.E.M has
not been adduced at trial, it would not impair the evidence of PW
1 which otherwise inspires confidence. The ratio in this case is
squarely applicable to the instant case, in as much as, the
evidence of PW 4 Bendre is well corroborated by the FIR lodged
by him and narration of the incident also.
37 37 Sessions Case No.218/1999
41/- Further, he relied on the ratio laid down in the authority
reported in 2013 ALL MR (Cri) 2620 (S.C.) : ALL
SCR-2013-2-1208 (Rohtash Kumar Vs. State of Haryana) wherein
it was observed that:
'It is a settled legal proposition that while
appreciating the evidence of a witness, minor discrepancies on
trivial matters which do not affect the core of the case of the
prosecution, must not prompt the court to reject the evidence in
its entirety.
'Thus, the court must read the evidence of a witness as a
whole, and consider the case in light of the entirety of the
circumstances, ignoring the minor discrepancies with respect to
trivial matters, which do not affect the core of the case of the
prosecution.
'The term witness, means a person who is capable of
providing information by way of deposing as regards relevant
facts, via an oral statement, or a statement in writing, made or
given in Court, or otherwise. Thus, a witness is normally
considered to be independent, unless he springs from sources
which are likely to be tainted and this usually means that the said
witness has cause, to bear such enmity against the accused, so as
to implicate him falsely. In view of the above, there can be no
prohibition to the effect that a policeman cannot be a witness, or
that his deposition cannot be relied upon. The evidence of police
officials cannot be discarded merely on the ground that they
belonged to the police force, and are either interested in the
investigating or the prosecuting agency.'
38 Sessions Case No.218/1999
42/- Ld. Spl.P.P Shri Patil also placed before me authority
reported in 2013 ALL SCR 2788 (Pramod Kumar Vs. State
(GNCT) of Delhi) wherein the Hon'ble Supreme Court observed
that:
The witnesses from the department of police cannot
per se be said to be untruthful or unreliable. It would depend
upon the veracity, credibility and unimpeachability of their
testimony.
43/- If the testimony of the police officer is found to be
reliable and trustworthy, the court can definitely act upon the
same. If, in the course of scrutinizing the evidence, the court
finds the evidence of the police officer as unreliable and
untrustworthy, the court may disbelieve him but it should not do
so solely on the presumption that a witness from the department
of police should be viewed with distrust. This is also based on the
principle that quality of the evidence weighs over the quantity of
evidence.

44/- The wording of the aforementioned authorities is self
explanatory and needs no further comment. The authorities relied
on by the Ld. Counsel Shri Pasbola on the other hand appear to be
on the point of test identification parade, evidence pertaining to
which, in any case, is not brought on record in the present case.
As such, the same would have to be distinguished.
45/- In the present case, no doubt, evidence of test identification
parade is not on record. However, it is well settled that
39 39 Sessions Case No.218/1999
identification before the Court is substantive evidence and can be
accepted even without corroboration provided it is free of
infirmities. In the present case, as already discussed above, apart
from vague suggestions about deposing falsely at the instance of
superiors, there is no reason attributed to PW 4 as to why he
would falsely identify the accused before the Court. No doubt, he
is a police witness. However, it must be kept in mind that, in the
present case, he is examined as an eye witness. His presence on
the spot is not at all denied. His presence was very natural as he
was the assigned body guard of deceased Inder. The entire
narration of the incident as it unfolded has been corroborated by
the FIR itself. Hence, discarding his testimony because he happens
to be a police witness, would be tantamount to labelling all
policemen liars. Hence, I find no substance in the submission of
the Ld. Counsel Shri Pasbola that his testimony is required to be
discarded merely because he is a police witness.
46/- Ld. Advocate Pasbola for accused nos. 3 and 5 to 7 also
argued at length on the point of absence of evidence on the point
of test identification parade. He also agitated that admittedly the
witness P4 had been shown to the accused Arshad in the lock up
itself. He also pointed to the admission of this witness in cross-
examination that the Investigation Officer had shown him the
photographs of the other accused, therefore, he submits that even
the identification of the accused by this witness in test
identification parade cannot be accepted.
47/- It is pertinent to note that PW4 has stated that after the
40 Sessions Case No.218/1999
incident he was shown the albums containing 25-30 photographs
of sharp shooters. Thereafter, accused Bacchi @ Ramchandra
Pande and Gabriel came to be arrested. Test identification parade
was held thereafter at Bombay and Pune. In the circumstances,
submission of Ld. Counsel Pasbola that the witness was shown the
photographs of the accused before test identification parade is not
sustainable. In fact, it would seem that after the witness had
identified the sharp shooters from their albums, the police have
arrested the various accused from various places like Delhi,
Bombay and Pune. In other words, the albums containing the
photographs of the accused were shown to the witness much
before the accused were arrested. As such, it will not reflect in
any way on the test identification parade. In any case, there is no
evidence on record as regards the said test identification parade.
Hence, his entire line of argument on the point of test
identification parade itself is of not much consequence.
48/- From my discussion in the foregoing paragraphs therefore,
it is manifest that the testimony of PW 4 P. C. Bendre appears
overall to be quite natural and has a ring of truth to it. As such, I
do not see any impediment in accepting his evidence including his
identification of the three a.m accused.
49/- The prosecution also examined the PW 8 Behrani, the
panch witness over the spot panchanama Ex. 275 and Ex. 276.
He has testified in respect of the spot of offence in consonance
with the panchanama Ex.275. He has stated the position of the
table, chair, doors, entry and exit points, articles in the office lying
41 41 Sessions Case No.218/1999
dishevelled, blood splattered in the office, blood stains on the
table, holes on the walls behind the chair, stains on the floors
between the table and chair and also four cartridges found at the
spot. The entire description is more or less along similar lines as
that in the spot panchanama Ex. 275. There is no serious
challenge to the testimony of this witness. He has also deposed
that the chair on which deceased was the subsequently attached
on 12/12/92 vide panchanama Ex. 276. There is no challenge to
his testimony on this point also. As such, both the said
panchanamas Ex. 275 and Ex. 276 have been duly proved.
50/- Next, the prosecution examined PW3 Jeevan Hari Shirsat, a
panch witness over seizure of clothing of deceased. However, this
witness has totally resiled from the prosecution case and his
testimony below Ex. 266 is not of any use to the prosecution.
Similarly, PW 5 Deepak Kalra, PW 6 Janardan Mhatre, PW 7
Ramesh Chetlani have testified below Ex. 271 to Ex. 273
respectively. They have all resiled from the prosecution case.
Nothing of any use to the prosecution is elicited from their
testimony despite detailed cross-examination by learned APP
under section 154 of Evidence Act.
51/- PW 15 ASI Popat Kale has deposed below Ex.302 in respect
of seizure of the blood stained clothing of deceased and has duly
proved the panchnama Ex. 307 in respect of the same. There is no
cross examination of this witness whatsoever. Hence, his
testimony clearly establishes the seizure of the clothing of
deceased.
42 Sessions Case No.218/1999
52/- PW 14 Sr.P.I. Jadhav conducted investigation in the present
case. He deposed about having recorded the spot panchanama
through PSI Deshmukh immediately after offense was registered
and also statements of witnesses in the course of investigation.
He has further proved the statement of PW 13 Shukla at Ex. 300
and has also introduced application article 'A' sent by deceased
Inder seeking police protection, in view of threat to his life.
Finally, he obtained inquest panchanama before investigation was
handed over to his successor. Testimony of this witness is more or
less of formal nature and is not at all challenged or denied.
53/- PW17 DCP Phadke has conducted investigation in the
present case from 24/04/94 to 01/05/95 and has sent up the
supplementary charge-sheet against accused Richard Fernandes,
Bachhi Pandey, Kishore Patki on 25/05/94, 1/01/95 respectively.
This witness is the second investigating Officer. He deposed
about having recorded supplementary statement of witnesses and
also production of accused Bachhi Pandey before DCP Bhosale for
recording his confession. There is no serious challenge to his
testimony. Admittedly, however, no papers in respect of TI parade
have been produced in the present case.
54/- Apart from this, admittedly the weapons of offense mainly
revolver has not been produced before the court. Also, admittedly
the clothing of the accused was not seized in the present case.
However, it is pertinent to note that accused were arrested several
years after the incident as they had absconded immediately after
43 43 Sessions Case No.218/1999
the same occurred. Obviously, seizure of clothing after a few years
of the incident could not be of much significance.
55/- As regards, the seizure of weapons, PW19 Mahavirkumar is
the panch witness over arrest panchanama of the accused and
seizure of firearms from their possession and also other 3-4
accused. In his testimony below Ex. 332, this witness was also
resiled from the prosecution case and no material any use to the
prosecution is elicited from his cross-examination under section
154 of the Evidence Act.
56/- However, PW21 Investigation Officer Shri Jaysingh
Shivajirao Patil has deposed that accused Gabriel @ Baba and
Bacchi Pande were arrested by him in CR no. 159/91 and taken to
Khar Police Station when he was working in Anti Terrorist Squad
on 04.03.1991. The weapons were seized from their custody
under panchanama Ex. 325. Said weapons were produced in the
concerned court under whose jurisdiction the said offense was
registered. Investigation Officer Shri Taktode has deposed at
length about his efforts to obtain the weapons in the present case.
The correspondence in this regard is filed on record. No doubt it
has not been admitted in evidence and has not been marked as
Exhibit. However, there is no serious challenge to this part of the
evidence. It is not disputed that the panchanamas of the weapons
which were deposited in court in the case arising out of C.R.No.
159/91 of Khar Police Station. However, apparently he failed to
get custody of the said weapons or to produce the same before
the Court. Hence, it seems that the weapons were not produced
44 Sessions Case No.218/1999
in Court for reasons beyond the control of present Investigation
Officer despite best efforts.
57/- The seizure panchanama of weapons is at Ex.325. The
Investigation Officer PW21 ACP Patil has also deposed having
recorded the aforementioned panchanama which is in his own
handwriting. This is not seriously challenged. He has also
categorically stated that accused Bacchi Pande was found in
possession of loaded Colt Revolver which was unloaded by PW21.
Accused Baba alias Gabriel was found in possession of loaded
foreign made Pistol and that PW 21 similarly unloaded the same
and attached revolver and the rounds. He has also arrested other
accused who were also involved in the said offense. As far as
seizure of weapon from accused Arshad is concerned, PW21 has
stated that after they recording seizure panchanama at Calbrow,
one of the accused Ramchandra alias Bacchi Pande expressed
willingness to lead the police to the place where their accomplices
were waiting for them and M/s. Papillon Tailoring Shop along
with additional arms and ammunition. PW 21 deposed that three
more accused i.e. accused no.3 Shaikh Mohammad Arshad, one
Dalani and one Tirupati were apprehended from there along with
weapons. Accused No.3 Arshad was found in possession of one
steel revolver .32 caliber. He also stated that the other accused in
the said offense also had other weapons.
58/- In cross-examination, PW 21 admits that signatures of the
accused had not been obtained on the said panchanama nor copy
of the same is given to the accused. So also, there is no mention
45 45 Sessions Case No.218/1999
about the seized weapons being sealed or labeled. However, it is
pertinent to note that the said panchanama is about articles found
in possession of the accused when they were apprehended. There
are no directive provisions where signatures of accused were
required to be obtained on the said panchanama, though the
same may be obtained as a matter of precaution. Further on, in
the cross-examination there is a series of questions about the
exact location. The witness has also reiterated in cross-
examination that the weapons were placed on the table while he
recorded the panchanama in presence of two panchas. There is no
denial of this testimony which amounts to deemed admission of
the same. Hence, from the cross examination itself, it is apparent
that there is no serious denial about the a.m accused nos. 3, 6 & 7
being found in possession of the alleged weapons as detailed in
the panchnama Ex. 325. Vague suggestions are subsequently put
to this witness about not having recorded any panchanama, nor
seized anything from the accused. However, all these suggestions
are flatly denied. As such, there is no dent in the testimony of this
witness on material points. As such, I see no impediment in
relying on the same. In the circumstances, I feel prosecution has
established that the weapons i.e. Colt Revolver and Foreign made
Pistol were found in possession of the accused Bacchi and Gabriel
and one revolver was recovered from the accused Arshad. In
other words, no doubt the panch witness has not supported the
prosecution case. However, fact remains that the Investigation
Officer PI Patil has duly proved the panchanama Ex.325. In the
exceptional circumstances of the present case as already discussed
above, the possibility of witnesses deposing falsely in Court due to
46 Sessions Case No.218/1999
fear of the accused is very strong. On the other hand, the
Investigation Officer is a public servant and has no reason to
falsely implicate the accused. As such, I see no impediment in
accepting the same, though the independent panch has not
supported the prosecution case. There is no whisper of the a.m
accused having any license to carry the firearms or having
produced the same before the police. Hence, I am inclined to hold
that the prosecution has duly proved the allegation that the
accused nos. 3, 6 & 7 were found in possession of firearms as
detailed above.
59/- PW 24 Vilas Gadkar, who has arraigned as a panch witness
over the seizure panchanama of revolver found in possession of
the accused no.1 Pappu Kalani on 12.11.1992. This witness has
also resiled from prosecution case in his examination in chief.
Hence, he was cross-examined at length under section 154 of
Evidence Act. In his cross examination, he admitted that he
belongs to Shiv Sena Party and was Shakha Pramukh. Admittedly,
accused no.1 Pappu Kalani was present in the police station when
he was called there by the police. He had also seen accused in
custody at that time of his own request. In his cross-examination,
he has also stated that besides of the articles mentioned in
panchanama nothing was seized in his presence except those
stated above. He admittedly signed the panchanama without
reading the same as he had faith in the police. This panchanama,
has not therefore been duly proved. As such, the prosecution
contention that the revolver was seized from possession of
accused no.1 Pappu Kalani is not established.
47 47 Sessions Case No.218/1999
60/- The prosecution has further examined Asst. Chemical
Analyser Shri Ramteke below Ex 394. He has stated that the
weapons seized in CR. no. 159/91 and empty cartridges
recovered in the present CR no. 89/90 were sent to the Forensic
Laboratory. This witness has produced the relevant documents in
this connection at Ex. 395. However, by the time, the weapons
were received, the empties were returned, hence, they could not
be compared.
61/- PW 23 Asst. Chemical Analyzer Shri Rokade was also
examined below Ex 378. He produced the C.A reports Ex. 379 &
380 which show in essence that the cartridges sent for analysis
matched the clothing of the deceased Inder. There is no serious
dent in his testimony in his cross examination.
62/- From the evidence on record, therefore, it is clear that the
PW 4 Bendre has categorically stated that the accused Bachchi
Pande, Baba @ Gabriel and Mohd. Arshad had entered into the
office of deceased Inder along with one more person, who was
not before the Court. Out of these, accused no. 3 Mohd. Arshad
and accused no. 7 Baba @ Gabriel went into the inner office,
whilst the unknown assailant and accused no. 7 Bachchi Pande
pointed a revolver at him after having snatched his musket and
flung it on the roof. Within minutes, he heard shots being fired
and the duo who had gone inside came out of the office.
Thereafter, when this witness entered the office, he found the
deceased Inder lying injured in a pool of blood with firearm
48 Sessions Case No.218/1999
injuries. It is pertinent to note that there is no reason why this
witness would falsely implicate the accused as already discussed
above. The spot panchnama corroborates this evidence. The
seizure of clothing of deceased is also proved. The medical
evidence also as already discussed above corroborates the
evidence of PW 4. As laid down in a catena of authorities, it is
well settled that the evidence of even a solitary witness can be
believed, provided it is free of infirmities, which in this case, I
have already observed, it is. The deceased Inder succumbed to his
injuries caused due to shots being fired at him by the accused
Baba @ Gabriel and Bachchi Pande, whilst accused Arshad and
one other unidentified person held the PW4 at gun point outside
the office to prevent their entry in the office.
63/- It is pertinent to note that there is no defense about any
one else having entered the office of deceased Inder or having
fired at him, in the cross examination or even in the statement of
the accused u/s 313 CrPC. Apart from bare denial, there is no
defense at all. Hence, I see no impediment to hold that the
prosecution has proved beyond reasonable doubt that the accused
nos. 3, 6 & 7 have committed cold blooded murder of Inder
Bhatija after unlawfully entering his office and threatening PW 4
Bendre and snatching his musket in order to prevent him from
performing his duty as body guard of deceased Inder. The
common intention of all these accused to murder the deceased
Inder is also manifest from the fact that all of them had entered
the office together and all of them were carrying firearms.
49 49 Sessions Case No.218/1999
64/- Ld. Counsel for the accused Shri Pasbola agitated that the
evidence of the PW 4 had no support. Weapons in this case are
not produced before the Court. Hence, one of the essential
ingredients of the alleged offense are not made out. Prosecution
has also failed to establish that the empties recovered from the
spot are the same fired from the weapons found in possession of
the accused. Independent witnesses have not supported the
prosecution. As such, sole testimony, more specifically the
identification of the accused by him, cannot be relied upon.
65/- Ld. Spl. PP Shri Patil however, strongly refuted this
submission with authority reported in AIR 2005 Supreme Court,
3759 (State of Punjab Vs. Hakam Singh) wherein in a similar
situation the Hon'ble Apex Court had observed thus:
'It was also pointed out by learned counsel for the
respondent that no fire arms were recovered and no seizure has
been made of empties. It would have corroborated the
prosecution story. Seizure of the fire arms and recovering the
empties and sending them for examination by the Ballistic expert
would have only corroborated the prosecution case but by not
sending them to the Ballistic expert in the present case is not fatal
in view of the categorical testimony of P.W.3 about the whole
incident. '
66/- He further placed reliance on authority reported in 2011
Cri.L.J. 2903 (S.C. Bhagwan Das Vs. State (NCT) of Delhi)
wherein it was held that even circumstantial evidence was
sufficient to sustain conviction. In such a case, the motive would
50 Sessions Case No.218/1999
be very important. He also placed relied on authority reported in
AIR 2008 Supreme Court, 3258 (Dinesh Kumar Vs. State of
Rajasthan) and AIR 2002 Supreme Court, 1937
(Dharmendrasinh alias Mansing Ratansingh Vs. State of Gujarat)
to buttress his submissions. In this case it was observed that
despite the contradictions of the defective or tainted investigation
a conviction can safely be recorded.
67/- In the present case also, I have already observed that the
evidence of PW 4 P. C. Bendre is quite natural and rings true. He
has narrated the entire incident in detail. The FIR in the present
case, the spot panchanama and the medical papers corroborate
his testimony. It is a matter of record that the accused were
absconding for 2-3 years immediately after the incident. As such,
their clothing or weapons could not be attached. However,
subsequently, they were found in possession of weapons as clearly
detailed in panchanama Ex. 325. By that time, the empties
recovered from the spot had already been returned by the
Forensic Science Laboratory. Hence, they could not be tallied with
the weapons recovered from the accused. The weapons in any
case could not be produced in this case inspite of due diligence in
the present case as reflected from the correspondence in this
regard which is placed on record. In any case, relying on the a.m
authority, it is crystal clear that even the substantive evidence of a
solitary eye witness is sufficient to base conviction if it is cogent
and credible. As already discussed above, the evidence of PW 4
Bendre is so and does not suffer from any infirmities. Hence,
respectfully relying on the a.m authorities I am inclined to hold
51 51 Sessions Case No.218/1999
that the evidence of PW 4 P.C. Bendre is sufficient to prove the
offenses u/s 450, 506(II), 353 & 302 r/w 34 IPC as well as u/s
27(2) Arms Act as against accused nos. 3, 6 & 7 only. As regards
accused no. 5, none of the witnesses has uttered a single word to
link him with the alleged offense. Hence, it follows that point no.
4 to 7 & 9 are answered in the affirmative as against accused nos.
3, 6 & 7 and in the negative against accused no. 5.
68/- Once I have held the accused nos. 3, 6 & 7 guilty of offense
u/s 302 r/w 34 IPC, the question of attempt to murder u/s 307
IPC does not survive. Hence, point no. 8 is answered in the
negative. Similarly, there is no direct evidence to show either
active instigation, aiding or engagement of accused no. 1 with the
act of accused nos. 3, 6 & 7. As such, abetment as envisaged by
Sec. 109 IPC is not at all made out. Hence, point no. 3 answered
accordingly.
As to point no. 2:
69/- As already noted above, the allegation against accused nos.
1 & 2 is that they had masterminded the murder of deceased
Inder due to previous enmity. In other words, they are sought to
be prosecuted on grounds of criminal conspiracy to murder the
deceased Inder. There was previous history of political rivalry
between political factions to which accused no.1 belongs and the
opposite faction to which deceased Inder and his uncles Gop
Behrani, Mohan Behrani and Thakur Behrani owed allegiance.
On this point prosecution has examined several witnesses who
have thrown light on the situation and environment prevailing at
52 Sessions Case No.218/1999
the time of the incident. This I have already discussed in the intial
part of the judgment, hence, I do not find it necessary to reiterate
the same at this juncture.
70/- Section 120-A of the Indian Penal Code defines criminal
conspiracy as an agreement between two or more persons to
commit an illegal act or to do an act which though by itself not
illegal but the same is done or executed by illegal means. Mere
proof of an agreement between the accused to commit offence is
enough to bring about the conviction for the offence punishable
under section 120-B of the IPC, in such case proof of any overt act
by the accused or by any of them would not be necessary.
Conclusion is to be drawn from the circumstantial evidence
available in the case, because Criminal conspiracy is often
hatched in complete secrecy and it is impossible or rare to get
direct evidence. It is not necessary that each of the conspirators
must know each and every detail of the conspiracy nor it is
necessary that every one of the conspirators must take part in the
commission of each and every conspiratorial act. The prosecution
may prove from the circumstances on record that the agreement
existed to commit crime by necessary implication. It is said that
men may lie but the circumstances do not. How criminal
conspiracy was formed, when and who were the participants as
also the manner in which the criminal conspiracy is carried out
are the matters of inference, legitimately deducible from the acts
and conduct of the accused persons. When circumstances are
cogently and firmly established, considered cumulatively, they
form a chain so complete to unmistakably point out towards guilt
53 53 Sessions Case No.218/1999
of the accused and none else then conviction is sustainable.
71/- In the present case, the standing of the accused no. 1 in the
society is already brought on record through 4 witnesses. It is
clear that he had unleashed a reign of terror in the locality. The
police machinery as per the a.m prosecution witnesses would
refuse to entertain aggrieved persons due to any acts involving
the accused no. 1 or his family members. None dared to open
their mouths against him. In fact, the main motive of the murder
of Inder Bhatija was that he was the First Informant and eye
witness in the murder of his brother Ghanshyamdas apart from
the political rivalry which is not seriously challenged or denied.
Said Ghanshyam was also murdered according to the prosecution
as he had caught the accused no. 1 and his henchmen in bogus
voting red handed in the election held in 1990 and raised an
objection. It is an admitted fact that in the same election, accused
no. 1 had won. It is also an admitted fact that after this incident,
the present deceased had sought police protection alleging that he
was receiving threatening phone calls and even personal threats.
The police protection had accordingly been granted. In spite of
this, the deceased Inder was gunned down by the accused nos. 3,
6 & 7 after holding the same body guard PW 4 Bendre at gun
point. The prosecution has alleged that accused no. 1 and 2 were
behind the plan due to the staunch enmity with the deceased
Inder and also the fact that he was the sole eye witness in the
murder case of his brother Ghanshyam. This seriatum of events is
not denied. Only the involvement of present accused was denied.
However, relying on the evidence of PW 4 Bendre and the ratio
54 Sessions Case No.218/1999
laid down by the Hon’ble Supreme Court, I have already held that
the prosecution has clearly made out its allegation that the
accused nos. 3, 6 & 7 had committed the murder of Inder. As
such, the prosecution contends that a high degree of animosity is
obvious from the a.m facts.
72/- Ld. Spl P.P Shri Patil at the very outset conceded that the
present case hinged on circumstantial evidence only. Considering
the fear of the accused no. 1 in Ulhasnagar, no one dared say
anything against him. However, this by itself does not affect the
prosecution case. He submitted that a conviction can be sustained
only on circumstantial evidence provided the same was logical
and led to the conclusion of complicity of accused. He relied on
authority reported in AIR (SC)-2011-0-1863 (Bhagwan Dass Vs.
State (NCT) of Delhi) wherein it was observed that:
‘This is a case of circumstantial evidence, but it is settled
law that a person can be convicted on circumstantial evidence
provided the links in the chain of circumstances connects the
accused with the crime beyond reasonable doubt.
‘In cases of circumstantial evidence motive is very
important, unlike cases of direct evidence where it is not so
important.’
He also relied on authority reported in 2013 ALL SCR 3033
(Bakhshish Singh Vs. State of Punjab & Anr.) wherein it is laid
down that:
'When a high degree of animosity is established the
existence of the motive may be taken to be established.'
55 55 Sessions Case No.218/1999
73/- To establish strong motive, prosecution has relied on firstly
the FIR filed in Sessions Case No. 219/91 Ex. 310. According to
Spl. P.P Shri Patil, this points unwaveringly to the motive of
murder of Inder in this case. He further urged that the same also
throws light on the cause of his own death. Hence, it could be
read into evidence. To introduce the same, PW18 DCP Jadhav was
examined. He has duly proved certified copy of FIR in Sessions
Case No. 219/91 Ex. 310 vide his testimony below Ex. 309. Said
FIR was lodged by deceased Inder, who is the victim in the
present case, in respect of murder of his brother Ghanshyam.
74/- In cross-examination, by learned counsel for accused no.1,
he admitted that there were criminal cases registered against
deceased Ghanshyam and his deceased brother Inder, the victim
in the present case, at Vitthalvadi police station. He also stated
about the background circumstances and rivalry between Gopal,
Ghanshyamdas and Inder, which is also not denied. Rest of the
antecedents of the present case have stated by this witness along
similar lines as those stated by PW 11 Sundar. Admittedly,
accused no.1 has always been a member of the ruling party.
Admittedly, this witness was incharge of over all supervision of
investigation. Apart from this, there is nothing else of much use to
the accused in the deposition of this witness.
75/- A bare perusal of the FIR in S.C no. 219/99 Ex. 310 clearly
reveals that deceased Inder had lodged FIR in Sessions Case No.
219/1999 in which there is a graphic description of the manner in
which his brother Ghanshyamdas was murdered on 27.02.1990.
56 Sessions Case No.218/1999
There is a specific allegation in the same that accused no.1 had
sent professional killers to murder him. During this incident
killers had also fired at now deceased Inder, however, he did not
sustain injuries as he had ducked in time. The deceased
Ghanshyam had been declared dead on arrival at the hospital.
From this, it is crystal clear that the deceased Inder was an eye
witness of the murder of his brother Ghanshyamdas.
76/- He also urged that the FIR be read into evidence as it threw
light on the circumstances leading to the death of deceased Inder.
To buttress his submissions, he relied on authority reported 2013
ALL SCR 2500 (Rafique @ Rauf & Ors. Vs. State of U.P.) wherein
it was observed that:
‘There is no statutory prescription as to in what manner or
the procedure to be followed for recording a dying declaration to
fall within the four corners of Section 32(1) of the Evidence Act.
It will have to be found out whether in the facts and
circumstances of any case the reliance placed upon by the
prosecution on a statement alleged to have been made by the
deceased prior to his death can be accepted as a dying
declaration, will depend upon the facts and circumstances that
existed at the time of making the statement.
‘We also wish to add that as on date, there is no statutory
prescription as to in what manner or the procedure to be followed
for recording a dying declaration to fall within the four corners of
section 32(1) of the Evidence Act.
‘As has been repeatedly stated in various decisions, it will
have to be found out whether in the facts and circumstances of
57 57 Sessions Case No.218/1999
any case the reliance placed upon by the prosecution on a
statement alleged to have been made by the deceased prior to his
death can be accepted as a dying declaration, will depend upon
the facts and circumstances that existed at the time of making the
statement. In that case it would mainly depend upon the date
and time vis-a-vis the occurrence when the statement was alleged
to have been made, the place at which it was made, the person to
whom the said statement was made, the sequence of events,
which led the person concerned to make the statement, the
physical and mental condition of the person who made the
statement, the cogency with which any such statement was made,
the attending circumstances, whether throw any suspicion as to
the factum of the statement said to have been made or any other
factor existing in order to contradict the statement said to have
been made as claimed by the prosecution, the nexus of the person
who made the statement to the alleged crime and the parties
involved in the crime, the circumstance which made the person to
come forward with the statement and last but not the least,
whether the said statement fully support the case of the
prosecution.
77/- Learned Counsel for the accused no. 1 Shri. Bhatia has
vehemently opposed this argument with the submission that FIR
is not at all substantive piece of evidence. He also opposed
learned APP on the ground that FIR of victim in the present case
did not contain anything about circumstances leading to his own
death. It was in respect of death of his brother Ghanshyamdas. As
such, the same could not be admitted in evidence and could not
58 Sessions Case No.218/1999
be relied upon. So also, same can not be treated as a dying
declaration under sec. 32(1) of the Evidence Act.
78/- In support of his submission he relied on authorities
reported in AIR 1996 Supreme Court, 372 ( Baldev Singh and
another V/s State of Punjab ) wherein it is laid down that FIR is
not a substantive piece of evidence. He also relied on authority
reported in AIR 1959 Supreme Court, 18 ( Ratan Gond V/s The
State of Bihar ) wherein it was held that the statement made by a
person which did not relate to the cause of his/her death or any
of the circumstances relating to the same was not admissible u/s
32(1) Evidence Act. Similar ratio was also laid down in authority
reported in AIR 1964 Supreme Court 900 ( Moti Singh & Anr
V/s The State of U.P.)
79/- It is pertinent to note that the FIR is a certified copy. As
such, it has presumptive value. No doubt, the contents therein are
not proved. However, it cannot be ignored that the deceased
Inder had filed such a complaint making allegations against the
accused no. 1 of having murdered Ghanshyam. It is a public
document and produced from proper custody. In fact, the case
arising out of earlier murder of Ghanshyam bears Sessions Case
No. 219/1999 and is pending in this Court itself. Therefore, I see
no impediment to accept the same and read the same in evidence.
The earlier murder had occurred over alleged bogus voting during
election. Obviously, the accused no. 1 would be directly affected if
the deceased Inder substantiated his allegations. His position as
President of UMC as well as social standing would be jeopardized.
59 59 Sessions Case No.218/1999
Hence, clearly, the said FIR Ex. 310 throws light on the very
strong circumstance of motive for the present offense. As such, I
see no impediment in holding that the FIR Ex. 310 is very much
admissible to establish motive on the part of accused no. 1.
80/- As far as the submission of the Ld. Spl. PP on the point of
dying declaration is concerned, the said FIR is totally in respect of
the instances which occurred in connection with the alleged
murder of Ghanshyam. There is no whisper of any reason stated
by the deceased Inder about cause of his own death. Obviously, he
did not have any inkling of things to come. Moreover, the dying
declaration as contemplated by Sec. 32 Evidence Act is in respect
of a statement made by a person on the verge of meeting his
Maker on the cause of his death. In this case, this was not at all
the case at the time when the statement Ex. 310 was filed. As
such, I am inclined to agree with Adv. Bhatia that the same cannot
be considered as Dying declaration. However, it may be
considered a strong circumstance to show motive on the part of
the accused no. 1.
81/- Next, Prosecution has relied on the evidence of PW 12
Sundarlal Bhatija, PW26 Kamal Bhatija to establish that even
before the death of Inder he was apprehending some threat from
accused no.1 and had filed an application before various
authorities and also sought police protection vide application filed
on record at Art. ‘A’. But, Ld. Counsel for accused has severely
objected to the same being read in evidence.
82/- In the present case, it is an admitted position that PW4
60 Sessions Case No.218/1999
Ghanshyam Bendre and another bodyguard were assigned to
protect the deceased Inder on application made by him. This has
been stated even by the Investigation Officer. There is no serious
challenge to this fact. As such, the fact that Inder had written a
letter to the Commissioner seeking police protection cannot at all
be denied. That there was previous enmity between the two
factions is also more or less unchallenged. The fact that police
had provided 24 hour round the clock protection to deceased
Inder unwaveringly points to the fact that even the police as well
as deceased believed that there were real threat or apprehension
to the life of the deceased Inder. Admittedly, he was the first
informant and eye witness in the murder case arising out of the
murder of deceased Ghanshyam, his brother just two months
before the present incident. In other words, this incident took
place only about two months after the earlier murder. Obviously,
accused no. 1 alone would benefit with the only eye witness to
the earlier murder being eliminated. In the circumstances, the
said application dated 4
th
April, 1990, I feel can safely be read in
evidence and relied upon to establish that there was severe
enmity between the accused no.1 and deceased Inder and his
family. It would not be out of place to mark the same as Ex. 586.
A bare perusal of the same shows a reference to a political bigwig
hatching a plot to assassinate deceased Inder. There is also a
concise description about the bone of contention between accused
no. 1 and uncle of deceased Inder named Gopichand Behrani over
sharing of Presidentship. Hence, in my humble opinion, the letter
Ex. 586 is a clear indicator of one more circumstance which
points towards complicity of the accused no. 1 in the causing
61 61 Sessions Case No.218/1999
murder of deceased Inder.
83/- Next, the Ld. Spl. P.P Shri Patil drew attention to the
telegrams and letters issued by the PW 12 Sunderlal Bhatija, the
father of deceased Inder and Ghansham. Same are filed on record
vide list Ex. 571. This witness admitted his signatures on the said
letters and telegrams. However, when questioned about the
contents, he pleads ignorance and states that his brothers-in-law
Gopal, Mohan and Thakur Behrani had sent the same. Further on,
this witness admitted having informed Shri Lalkrishna Advani
about the death of his son. The complaint of the present witness
to various authorities contained specific allegation that the
accused no. 1 Pappu Kalani was behind the murder of Ghansham.
This fact is mentioned in his statement before police. Though this
witness has resiled from the same, it has been duly proved by the
Investigation Officer PW 26 Shri Tagtode who recorded the same.
He has reiterated that the same was recorded as narrated by the
PW 12 Sunderlal. It has been marked Ex. 410.
84/- Ld. Spl. P.P Shri Patil submitted that once the witness had
admitted his signatures, it defies logic that he would have signed
the same without being aware of its contents. The PW 12 was a
municipal councilor. He has his own business. He is an educated
person. He is also a political functionary. Obviously, he is a man
of the world and he would not send any letters without even
going through contents or having knowledge of the contents to
such influential persons and higher authorities, considering his
back ground. As such, his denial of the contents in my humble
62 Sessions Case No.218/1999
opinion cannot be accepted at face value. Ld. Spl. P.P Shri Patil
urged that the Court must consider the fact that two of this man's
sons had been murdered in a span of two months. He was himself
90 years old at the time of his deposition. The fear of his
remaining family being harmed or even killed was upper most in
his mind. The absolute fear, nay terror, instilled by Accused no. 1
Kalani in the locality at the time has already come on record. In
these circumstances, the reluctance of this witness to name him is
quite natural. Hence, his statement Ex. 410 is required to be
accepted.
85/- To substantiate this submission, he relied on authority
reported in 2011 CRI.L.J. 2903 (Bhagwan Dass Vs. State (NCT)
of Delhi wherein the Hon’ble Justice Markandeya Katju had
observed that when the mother of the accused, who was the
prime witness in the said case had turned hostile, her subsequent
denial in Court was not believable because she was obviously
interested in saving her son from punishment. In these
circumstances, Hon’ble Justice Katju had observed that:
‘We are of the opinion hat the statement of Smt. Dhillo Devi
to the police can be taken into consideration in view of the
proviso to Section 162(1) Cr.P.C. and her subsequent denial in
court is not believable because she obviously had afterthoughts
and wanted to save her son (the accused) from punishment. In
fact in her statement to the police she had stated that the dead
body of Seema was removed from the bed and placed on the
floor. When she was confronted with this statement in the Court
she denied that she had made such statement before the police.,
63 63 Sessions Case No.218/1999
We are of the opinion that her statement to the police can be
taken into consideration in view of the proviso of Section 162(1)
Cr.P.C.’
86/- In the present case, the background of the accused no. 1
and the atmosphere that prevails in the entire area due to this, no
common man would stand up and speak against him. Even the
police machinery is reluctant take action or even cognizance of
complaints against him as has come on record through PW 29
Jamil Ahmed. In these exceptional circumstances, in my humble
opinion, respectfully relying on the a.m authority, I am inclined to
hold that considering that the signature has been admitted by
PW12 Sundarlal on complaints and telegrams, prosecution has
established that he had in fact sent those letters. As such, there
seems no impediment on relying on the same.
87/- Having said that, turning to the letters and telegrams
themselves the same clearly outline the entire history of disputes
between the parties culminating in the murder of Ghanshyam and
subsequent developments. No responsible person would address
such letters to senior statesman and police authorities right up to
Commissioner level, making specific allegations against the
President of the Municipal Council who also is a reasonably
influential person without having some genuine apprehension.
Hence, from the over all circumstances brought on record it
appears that Sunderlal had time and again expressed his
apprehensions and sought protection and action from the higher
ups repeatedly. This circumstance is also significant in order to
64 Sessions Case No.218/1999
show that there was not only severe enmity, but also that the PW
12 Sunderlal and his family were receiving threats repeatedly and
had complained about it to various authorities.
88/- Now, admittedly, it is nobody’s case that the accused nos. 3,
6 & 7 had any axe to grind with the deceased Inder. They had no
relations inter se with the deceased. As such, there is no personal
enmity between them or motive to murder him brought on
record.
89/- The prosecution has also examined PW 9 Tukaram, who
was in-charge of the vehicle section of Ulhasnagar Municipal
Council and both PW 10 Bharat as well as PW 11 Balu, who were
drivers with Ulhasnagar Municipal Council. The testimony of
these three witnesses is at Ex. 283 to Ex. 285. All the three have
resiled from the prosecution case. However, statements of PW 9
and PW 11 recorded by the I.O are duly proved by him at Ex. 406
& 408. PW 9 was in charge of the vehicle section whereas PW 11
Kakade is a driver with UMC.
90/- Ld.Spl.P.P argued that though both these witnesses have
resiled from the prosecution case, their statements Ex. 406 & 408
must be accepted in the exceptional circumstances of the present
case. Both these witnesses are employed with UMC. The wife of
accused no. 1 was the Mayor of Ulhasnagar Municipal
Corporation at the time of their deposition. Added to this, the
reputation of accused no. 1, who was an MLA at the time, and the
fear instilled by him, would obviously weigh on the mind of the
65 65 Sessions Case No.218/1999
witnesses. In the circumstances, therefore, it is quite natural that
they would be reluctant to depose against the accused no. 1. In
these exceptional circumstances, once again relying on the ratio
laid down in the case of Bhagwan Dass Vs. State (NCT) of Delhi
(supra) by the Hon'ble Apex Court, I feel, the statement of these
witnesses Ex. 406 & 408 is required to be accepted as they are
duly proved by the I.O Shri Tagtode.
91/- Turning to the said statement Ex. 408, this witness had
clearly stated that in 1990, the accused Bachchi Pande, Baba @
Gabriel, Arshad and others used to visit accused no. 1 frequently
and also stay at the Seema Resort, Kalani Mahal as well as Seema
Apartments. This witness has also stated that he would even serve
tea and meals to them at times. After murder of Ghansham also,
the accused no. 1 had made arrangements for their stay at Seema
Resort and at a guest house in front of the office of the accused
no. 1. He also stated in his statement Ex. 408 that he had taken
accused Baba and one Kishor in Jeep no. MH 05 A 7750
belonging to UMC to the Seema Resort. He also spotted the
accused Arshad, Bachchi, Richard and one Dinesh sitting there on
the lawns.
92/- The PW 9 Tardalkar has admitted that the a.m Jeep belongs
to UMC and PW 11 and others were working as driver. Clearly
therefore, from the evidence of PW 9 and statement of PW 11
Kakade, it is clear that the accused no. 1 was in close contact of
all the three accused nos. 3, 6 & 7 to the extent that they used to
visit and stay with him and all his needs were taken care of by
66 Sessions Case No.218/1999
him including providing Government vehicles for their use.
93/- Adv. Pasbola and Adv. Bhatia for the accused have both
agitated that evidence of hostile witnesses cannot be taken into
account to begin with. Further, their statements before police are
also not admissible according to them. However, in view of the
ratio laid down in the authority reported in Bhagwan Dass I am
inclined to hold that this argument cannot be accepted. In normal
circumstances, as a matter of caution, no doubt Courts do not rely
on such evidence. However, in the present case, considering the
background circumstances as already brought on record and
discussed in the foregoing paragraphs, it is manifest that the
accused had wielded tremendous clout politically in addition to
the terror he invoked in the populace at large. These
circumstances quite clearly are exceptional and it would be
natural that ordinary citizens and more so the employees of UMC
such as PW 9 & 11 would be reluctant to depose against him. In
such a scenario, rejection of the statements Ex. 406 & 408
applying the usual standards of evaluation of evidence, it would
result in total injustice and abuse of legal provisions. The duty of
the Court is to analyse and evaluate the evidence on record in a
circumspect fashion as a whole. Hence, I feel, respectfully relying
on ratio laid down in the case of Bhagwan Dass (supra), the
statements Ex.406 & 408 is required to be accepted.
94/- To sum up, the circumstantial evidence in the form of FIR
in SC no. 219/99, the letters and telegrams addressed by PW12
Sunderlal as well as application of deceased Inder for police
67 67 Sessions Case No.218/1999
protection as already discussed in the foregoing paragraphs are a
clear indication of the strong rivalry and enmity between the
deceased and the accused no. 1. Coupled with the statements of
PW 9 & PW 11 Ex. 406 & 408, prosecution has established a
nexus between the accused Nos. 3, 6 & 7, who were frequent
guests of accused no. 1. Apparently, they were close associates.
This would amount to a reasonable ground to believe that the
accused nos. 1, 3, 6 & 7 have conspired to commit the alleged
offenses. Especially so, when the accused nos. 3, 6 & 7 have no
personal enmity with the deceased. There is also no explanation
forthcoming on the close association of these accused with
accused no. 1. In this scenario, I am inclined to hold that the
prosecution has successfully established the conspiracy hatched
by them and that the murder was committed as a result of the
same. It follows therefore, that point no. 2 is answered in the
affirmative as against accused nos. 1, 3, 6 & 7 only.
95/- As regards accused nos. 2 & 5, except vague reference
about accused no. 2 having a previous enmity with the deceased
Inder, no specifics are forthcoming. Only there is an alleged
seizure of bullet proof jacket from the house of accused no. 2.
However, even this is not proved. PW2 Balaram Krushna Mhatre
has deposed below Ex.264 on this point. He has arrayed as panch
witness over the panchanama of seizure of bullet proof jacket
from a flat in building known as Seema Apartment as well as the
seizure of jeep. While he has duly proved the seizure panchanama
of the jeep below Ex.265, he has stated that he could not
remember anything about the seizure of the jacket on account of
68 Sessions Case No.218/1999
lapse of long period of time. As such, there is nothing on record
to link accused no. 2 to the alleged offense. Similarly, none of the
prosecution witnesses have stated anything about accused no. 5.
PW 4 has not also identified this accused. In the circumstances,
there is absolutely no evidence against these two accused. Hence,
point no. 2 is answered in the negative as against them.
96/- In view of my affirmative findings on points for
determination as discussed above, as a natural corrolary, accused
nos 1, 3, 6 & 7 are liable for conviction. At this juncture, I stop
judgment for hearing them on the point of sentence. On
application Ex.583, matter is posted tomorrow i.e 30.11.2013 for
hearing on the point of sentence.
Kalyan. (Rajeshwari Bapat Sarkar)
29.11.2013. Adhoc Addl. Sessions Judge,Kalyan.
97/- I heard Ld. Spl. PP Shri Vikas Patil, Ld. Advocate Shri H.L.
Bhatia for accused no.1 and Ld. Advocate Shri Pasbola for accused
nos. 3, 6 and 7 at length on the point of sentence.
98/- Ld. Spl. PP urged that most stringent punishment be
awarded in the present case keeping in mind the antecedents of
the present case. He pointed out that though accused no. 1 was
an MLA, he has been associated with known criminals, gangsters,
and the underworld. He has a history of more than 26 cases filed
against him, out of which there are 8 to 10 cases under the
erstwhile TADA. Out of these, there are 8 cases under section 302
69 69 Sessions Case No.218/1999
of IPC filed against him apart from offenses under sections 307,
353, 323, 506(2) of IPC etc. Ld. Spl. PP Patil also pointed out that
out of the cases filed against accused no.1, there are also
allegations about him having entered into criminal conspiracy to
murder while he was in jail. One such case is also pending before
TADA Court, Pune in which even the police constable
accompanying the victim was not spared.
99/- Spl. PP Shri Patil also pointed out that the manner in which
the present offense was committed in broad day light by
threatening the police constable assigned to protect the victim
also showed the brazen attitude. He pointed out that at the
relevant time accused no.1 was the sitting President of
Ulhasnagar Municipal Council and used his political and official
clout which resulted in a reign of terror. Obviously, in these
circumstances no witness came forth and no common man had
the gumption to stand up to a person of such stature, especially
coupled with the criminal activities as evident from the record.
This resulted in acquittals in most cases, which in turn, led to an
attitude of complacency in the accused no. 1 that he could get
away with murder. In these circumstances, Ld. Spl. PP Shri Patil
prayed that no leniency be shown to this accused no. 1. He
submits that the intention of the Legislature in awarding
punishment is not only punitive and/or retributive but also
preventive. The sentence should be such as to act as a deterrent to
other would-be criminals and send out a message to society at
large that crime would not go unpunished, who ever the
individual involved may be. Hence, he prayed that the accused
70 Sessions Case No.218/1999
no.1 be awarded death penalty. This is the crying need of the day.
100/- As far as accused nos. 3,6 and 7 are concerned, Spl. PP Shri
Patil submitted that these accused have already undergone
sentence after being convicted in other cases. They are members
of known underworld gangs and are also involved in several
offenses along with the present accused no.1. They are
professional assassins with a track record of having committed
several crimes including that of murder, extortion etc. In these
circumstances they are not fit for any leniency being shown. On
the contrary, death penalty to these accused would be the only
just and proper punishment, according to Ld. Spl. PP Shri Patil.
101/- Ld. Spl. P.P has list of cases filed against accused no.1 along
with list Ex.585. A bare perusal of the same shows that a list of
almost 26 offenses is annexed out of which 14 according to Ld.
Advocate for accused no. 1 have been concluded with the accused
no.1 being acquitted. Most of these apparently are filed between
the period 1986 to 1996-97. Admittedly, accused no.1 was in jail
from 1993 till 2002 which is about over a period of 9 years.
However, the list of offenses and other relevant documents placed
in Court show that even after being out on bail in so many cases,
fresh offenses have been registered against the accused between
the period 2006 to August, 2013. Some of the cases have been
filed against him under IPC and also under the prevention of Anti
Corruption Act.
102/- To counter this, Ld. Counsel for accused no.1 Shri Bhatia
71 71 Sessions Case No.218/1999
argued that in an offense punishable under section 120-B r/w.
302 of IPC, Court had no real choice but to impose life
imprisonment. It is only in the offense falling in the rarest of rare
category that death penalty would be attracted. He argued further
that in the present case, even assuming that allegations are true,
it would only amount to a political murder though the accused
no.1 and the victim are close relatives. One hears of many such
murders taking place at regular intervals every other day. As
such, this is not a case which would fall in the ‘rarest of rare’
category. Therefore, he prayed that minimum sentence of life
imprisonment be imposed.
103/- Apart from this, accused no.1 himself submitted that he is
now well over 60 years of age. He has already suffered from a
paralytic attack as well as a heart attack. He is also suffering
from diabetes and hyper tension. His wife Jyoti Kalani cannot see
properly as she has an eye ailment. She is also nearing 60 years
of age. The accused no.1 is residing only with her and their
divorced daughter. Accused no.1 is the only person available to
look after the wife and divorced daughter. Hence, in view of his
own ill health and that of his wife, leniency be shown. He further
submitted that he was in jail for over 9 years in the present case.
Praying for leniency, he prayed that same term of imprisonment
as already undergone be awarded to him and benefit of set off be
given. Alternatively, he prayed that he be awarded death penalty
as it would be impossible for him to undergo further sentence of
imprisonment and going to jail in the present circumstances.
72 Sessions Case No.218/1999
104/- Ld. Advocate Pasbola for accused nos. 3, 6 & 7 has made
submissions on the point of sentence along similar lines as
Advocate Bhatia to the effect that present case does not at all fall
in the category of rarest of rare cases necessitating death penalty.
To fortify his submissions, he relied on authorities reported in
(2013) 2 Supreme Court Cases (Cri) 611 (Sangeet and another
Vs. State of Haryana) and (2009) 6 Supreme Court Cases, 498
(Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra)
wherein the concept of factors to be taken into consideration to
classify the crime as rarest of rare awarding death penalties have
been discussed in detail. The doctrine of rehabilitation and
doctrine of proportionality was also discussed in detail along with
the mitigating circumstances which ought to be considered. It
was observed in the case of Santosh Kumar Satishbhushan Bariyar
Vs. State of Maharashtra, that -
“The doctrine of proportionality for awarding death penalty
on the appellant provides for justifiable reasoning for awarding
death penalty. However, while imposing any sentence on the
accused the court must also keep in mind the doctrine of
rehabilitation. This, considering Section 354(3) of the Code, is
especially so in the cases where the court is to determine whether
the case at hand falls within the rarest of the rare case. There is
nothing before us that shows that the appellant cannot reform
and be rehabilitated.”
105/- In the present case, as already discussed in the main body
of the Judgment, there is a history of bitter political rivalry
between the factions to which accused no.1 belongs and the
73 73 Sessions Case No.218/1999
faction to which victim belonged. Admittedly, the victim, his
uncles, father and other close relatives as well as the accused no.
1 and his uncle and other close relatives are all politicians and
had at some point or the other occupied official posts like
Municipal Councilor, President of Ulhasnagar Municipal Council,
MLA etc. There was bitter rivalry between the two factions which
led to a spurt of murders of victims belonging to both factions
including the present case. From this, it is clear that this is a
political murder and does not fall within the category of rarest of
rare cases justifying death penalty.
106/- Admittedly, the accused no.1 is out on bail in several
offenses. Accused nos. 3, 6 and 7 have already been convicted
previously and are presently out on bail in other offenses. Despite
this, prima-facie it seems that there are other offenses being
registered against all the aforementioned accused, even while
they are out on bail. As such, criminal activities prima-facie have
not ceased though fact remains that dozens of offenses are
registered against all the aforementioned accused and they are on
bail in several of the cases arising out of the same. From this it
seems on the very face of it that they have violated conditions of
bail in several cases. Accused nos. 3, 6, 7 are apparently habitual
offenders and their actions do not show any remorse, inspite of
being convicted previously. Also, as far as accused no.1 is
concerned, I have already observed in the body of the judgment
itself that his activities have led to wide spread fear and terror in
the minds of the common man on the street. His record indicates
that possibility of his indulging in criminal activities again cannot
74 Sessions Case No.218/1999
be ruled out. In these circumstances, the following order:
1] Accused no.1 Suresh @ Pappu Budharmal Kalani is hereby
convicted for having committed an offense punishable under
section 120-B r/w. 302 of IPC and is sentenced to undergo life
imprisonment and to pay fine of Rs. 5000/- (Rupees Five
Thousand only) i/d. to suffer R.I. for 6 months.
2] Accused nos. 3, 6 and 7 namely Mohammad Arshad
Mohammad Taher, Bacchi @ Ramchandra Sitalaprasad Pande and
Gabrial @ Baba Hana Moben are hereby convicted for having
committed an offense punishable under section 302 r/w.120-B of
IPC and are sentenced to undergo life imprisonment and to pay
fine of Rs. 5000/- (Rupees Five Thousand only) i/d. to suffer R.I.
for 6 months.
3] Accused nos. 3, 6 and 7 namely Mohammad Arshad
Mohammad Taher, Bacchi @ Ramchandra Sitalaprasad Pande and
Gabrial @ Baba Hana Moben are hereby convicted for having
committed an offense punishable under section 450 r/w. 34 of
IPC and are sentenced to undergo 10 years rigorous
imprisonment and to pay fine of Rs. 5,000/- (Rupees Five
Thousand only) i/d. to suffer R.I. for 6 months.
4] Accused nos. 3, 6 and 7 namely Mohammad Arshad
Mohammad Taher, Bacchi @ Ramchandra Sitalaprasad Pande and
Gabrial @ Baba Hana Moben are hereby convicted for having
committed an offense punishable under section 506(2) r/w. 34 of
IPC and are sentenced to undergo 7 years rigorous imprisonment
and to pay fine of Rs. 3,000/- (Rupees Three Thousand only) i/d.
to suffer R.I. for 3 months.
5] Accused nos. 3, 6 and 7 namely Mohammad Arshad
75 75 Sessions Case No.218/1999
Mohammad Taher, Bacchi @ Ramchandra Sitalaprasad Pande and
Gabrial @ Baba Hana Moben are hereby convicted for having
committed an offense punishable under section 353 r/w. 34 of
IPC and are sentenced to undergo 2 years rigorous imprisonment
and to pay fine of Rs. 1,000/- (Rupees One Thousand only) i/d. to
suffer R.I. for 1 month.
6] Accused nos. 3, 6 and 7 namely Mohammad Arshad
Mohammad Taher, Bacchi @ Ramchandra Sitalaprasad Pande and
Gabrial @ Baba Hana Moben are hereby convicted for having
committed an offense punishable under section 27(2) of Indian
Arms Act and are sentenced to undergo 1 year rigorous
imprisonment and to pay fine of Rs. 1,000/- (Rupees One
Thousand only) i/d. to suffer R.I. for 1 month.
7] Accused No. 1 namely Suresh @ Pappu Budharmal Kalani is
hereby acquitted for having committed an offense punishable
under sections 109 r/w 302 of IPC.
8] Accused No. 2 namely Dr. Narendra Hemandas
Ramsinghani is hereby acquitted for having committed an offense
punishable under sections 120-B, 109, 307, 302 r/w.34 of IPC.
9] Accused No. 3 namely Mohammad Arshad Mohammad
Taher, Accused Nos. 6 and 7 namely Bacchi @ Ramchandra
Sitalaprasad Pande and Gabrial @ Baba Hana Moben are hereby
acquitted for having committed an offense punishable under
sections 109, 307 r/w.34 of IPC.
10] Accused No. 5 Richard Robert Fernandes @ Satish Suvarna
is hereby acquitted for having committed an offense punishable
under sections 120-B, 109, 450, 506(2), 353, 302, 307 r/w.34 of
IPC.
76 Sessions Case No.218/1999
11] Sentence of accused nos. 3,6 and 7 to run concurrently.
12] Investigation Officer is directed to file fresh charge-sheet
against absconding accused no. 4 Shyamkishor @ Kishorbhai
Murlidhar Garikapatti after securing his presence or original
documents including FIR, spot panchanama as well as exhibited
documents and seized property be handed over to Investigating
Officer to facilitate filing of fresh charge-sheet after securing
presence of absconding accused no.4 Shyamkishor @ Kishorbhai
Murlidhar Garikapatti.
13] Copy of this Judgment be furnished free of cost to accused.
(Pronounced in open court.)
Kalyan. (Rajeshwari Bapat Sarkar)
3.12.2013 Adhoc Addl. Sessions Judge,Kalyan.

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