Full Judgment Text
Digitally
signed by
SHAGUFTA
QUTBUDDIN
PATHAN
Date:
2024.03.19
17:05:41
+0530
2024:BHC-AS:13217-DB
SHAGUFTA
QUTBUDDIN
PATHAN
J-Apeals-707-2019-group.doc
J U D G M E N T
Table of Contents
(The soft copy of this judgment in PDF is bookmarked to facilitate
navigation)
I. BACKGROUND OF THE CASE...............................................................................29
II. SUBMISSIONS OF THE APPELLANTS/ACCUSED.................................................31
- Mr. Sudeep Pasbola for A7 in Cri.Appeal/1080/2019 ...............................................31
- Mr. Sanjeev Kadam for A4 in Cri.Appeal/944/2013 .................................................34
- Mr. Jagdish Shetty for A8, A10, A12 and A21 in Cri.Appeal/942/2013 .................41
- Mr. Jagdish Shetty for A5 and A6 in Cri. Appeal/943/2020 .....................................47
- Ms. Pradnya Talekar for A9 in Cri. Appeal/151/2021 ..............................................54
- Mr. Pendse for A11 in Cri. Appeal/707/2019 ...........................................................69
- Mr. Girish Kulkarni for A17 in Cri. Appeal/1490/2018 ...........................................72
- Mr. Nagraj Shinde for A20 in Cri. Appeal/86/2021 .................................................76
- Mr. Ashwin Thool for the A18 in Cri. Appeal/1239/2019 .......................................78
- Mr. Sushil Gaglani for OA2 in Cri. Appeal/104/2021 ..............................................82
- Mr. Prakash Shetty for A13 in Cri. Appeal/117/2019 ...............................................90
- Mr. Manish Mazgaonkar for A16 in Cri. Appeal/1493/2018: ..................................93
- Mr. Dilip Sitaram Palande (A15) in-person in Cri. Appeal/1242/2018 .....................97
- Mr. Waqar Pathan for A3 in Cri. Appeal/1038/2013 ..............................................110
III. S UBMISSIONS OF THE STATE ...........................................................................113
IV. ANALYSIS.............................................................................................................159
A . Sequence of events in detail.................................................................................159
i. C.R. No. 302/2006 registered at the behest of A9.............................................159
ii. C.R. No. 246/2009 registered after SIT was constituted..................................167
B. The Law on Circumstantial Evidence ...................................................................182
C. Circumstances and Analysis of each of the circumstance .....................................185
i. FORMATION OF SQUAD..............................................................................190
ii. ABDUCTION.................................................................................................239
iii. ENCOUNTER/CUSTODIAL DEATH/MURDER..........................................362
a. On false FIR and Fabrication of Records/Evidence......................................364
b. Spot panchnama not recorded at the spot...................................................377
S.Q. Pathan / N.S. Chitnis 1/867
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c. No meeting held by A9 in his cabin............................................................390
d. No prior information furnished to superiors by A9.....................................401
e. False station diary entries and documents...................................................411
f. Revolver and railway tickets planted on the deceased.................................420
g. Pool of blood not proportionate to injuries.................................................436
h. Map of Nana Nani Park falsifies the case of a genuine encounter................441
i. Empty found near Magnum Opus...............................................................445
j. Defence Witness..........................................................................................447
iv. BALLISTIC EVIDENCE/FORENSIC EVIDENCE..........................................454
a. Weapon History...……………………………………………………………….454
b. Allotment and Deposit of Arms and Ammunition in C.R. No. 302/2006....456
c. Investigation vis-a-vis the weapons.............................................................462
d. Movements of Weapons, Arms and Ammunition.......................................473
e. Link evidence and Ballistic Expert’s Evidence..............................................477
f. Law with regard to Ballistic Evidence/Forensic Evidence..............................506
v. WRONGFUL CONFINEMENT OF ANIL BHEDA........................................514
vi. PRESSURE TACTICS / MANIPULATION BY ACCUSED PERSONS.……….553
vii. CALL DETAIL RECORDS (`CDR’)..............................................................607
a. Law vis-a-vis CDR.......................................................................................608
b. Evidence of nodal officers...........................................................................615
viii. CRIMINAL CONSPIRACY..........................................................................672
D. Lacunae in 313 ...................................................................................................681
E. Sanction under Section 197 Cr.PC – Whether necessary ? ...................................691
F. Absence of Motive – Whether fatal? .....................................................................706
G. Section 106 shift of burden of proof – It’s applicability .......................................716
H. Conclusion .........................................................................................................731
I. Order .................................................................................................................765
V. APPEAL AGAINST ACQUITTAL...........................................................................769
A. Submissions .........................................................................................................770
B. Scope of Acquittal ................................................................................................792
C. Analysis of the Evidence on record ......................................................................804
D. Order ..................................................................................................................861
VI. CRIMINAL REVISION APPLICATION NO. 182/2023......................................865
S.Q. Pathan / N.S. Chitnis 2/867
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.707 OF 2019
Nitin Gorakhnath Sartape,
Aged: 53 years,
Residing at U/14, Hanjur Nagar, … Appellant
Pump House, Andheri (E), Mumbai (Org.Accused No.11)
Versus
The State of Maharashtra,
(At the instance of Versova Police Station
C.R. No. 246/2009) … Respondent
WITH
CRIMINAL APPEAL NO.86 OF 2021
Sandip S/O Hemraj Sardar [Prisoner],
Age-49 yrs, Occu: NIL,
R/o. 4/131, B. No. 4, Aram Nagar,
Police Colony, Seven Bunglow, … Appellant
Andheri (W), Mumbai- 400 061 (Org.Accused No.20)
Versus
The State of Maharashtra,
(At the instance of SIT Versova Police
Station, C.R. No. 245 of 2009, C.C.
Nos.886/PW/2010, 1555/PW/2010,
2300/PW/2010, & 2728/PW/2010)
… Respondent
WITH
CRIMINAL APPEAL NO.104 OF 2021
S.Q. Pathan / N.S. Chitnis 3/867
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Tanaji Bhausaheb Desai,
Age: 50 years, Occupation : Under
Suspension, R/o. 7/101, Solitaire 2,
Poonam Gardens, Opp. SK Stone,
Mira Road (E), Thane - 401107 … Appellant
(Org.Accused No.2)
Versus
1. The State of Maharashtra,
(At the instance of Versova Police
Station)
2. The Inspector of Police
Versova Police Station … Respondents
WITH
CRIMINAL APPEAL NO.151 OF 2021
Pradeep Pandurang Suryawanshi,
Age: 67 years, Occ. Nil,
nd
R/o. Room No. 202, 2 floor,
Ravi Kiran Co-op. Housing Society, … Appellant
Gorai Road, Borivali (West), Mumbai. (Org.Accused No.9)
Versus
The State of Maharashtra,
(At the instance of Special Investigation
… Respondent
Team, Versova Police Station)
WITH
CRIMINAL APPEAL NO.942 OF 2013
1. Manoj Mohan Raj @ Mannu,
Age: 44 years, Residing at
S.Q. Pathan / N.S. Chitnis 4/867
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Noor Mohd. Chawl,
Young Committee, Gundavali
Gaothan, Andheri, Mumbai.
2. Sunil Ramesh Solanki,
Age : 33 years, Residing at BC
Workers' Quarters, B-12 Akurli Road,
Samata Nagar, Kandivali (East),
Mumbai.
3. Mohamed Shaikh Mohd. Taka
Moiddin Shaikh, Age: 44 years,
Residing at : B-13, Room N.303,
Sector-II, Shanti Nagar, Mira Road,
Thane.
4. Suresh Manjunath Shetty,
Age: 43 years, Residing at C- 704,
Shanti Vidya Nagar, Hatkesh,
Mira Road (East), Thane.
… Appellants
(Org.Accused Nos.8,
10, 12 and 21)
Versus
The State of Maharashtra,
(At the instance of SIT (Versova Police
Station, C.R. No. 246/2009) C.C.
Nos.886/PW/2010, 1555/PW/2010,
2300/PW/2010, & 2728/PW/2010)
… Respondent
WITH
CRIMINAL APPEAL NO.943 OF 2013
1. Hitesh Shantilal Solanki @ Dhabbu,
Age: 44 years, residing at
S.Q. Pathan / N.S. Chitnis 5/867
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Shardabai Chawl, Room No.1,
Prabhat Colony, Vakola, Santacruz,
Mumbai.
2. Akhil Shirin Khan @ Bobby,
Age: 45 years, residing at Flat No.604,
Priyadarshini Park Society, Om Nagar,
J. B. Nagar, Sahar Road, Andheri
(East).
3. Janardan Tukaram Bhanage,
Age: 59 years, residing at F-9, Sector-9,
CBD Belapur, Navi Mumbai.
… Appellants
(Orig. Accused Nos.
5, 6, and 14)
As per Court's order dated 23/2/2021,
orig. Accused No. 14 stands abated.
(Expired hence abated).
Versus
The State of Maharashtra,
(At the instance of SIT (Versova Police
Station C.R. No. 246/2009)
C.C.Nos. 886/PW/2010, 1555/PW/2010,
2300/PW/2010, & 2728/PW/2010) … Respondent
WITH
CRIMINAL APPEAL NO.944 OF 2013
1. Shailendra Dhoopnarayan Pandey
@ Pinky, Age : 39 years, residing at
Room No.31, Vazir Glass Chawl
Committee, Opp. Natraj Studio, … Appellants
Andheri (East), Mumbai. (Orig. Accused No.4)
Versus
S.Q. Pathan / N.S. Chitnis 6/867
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The State of Maharashtra (at the instance
of SIT (Versova Police Station C. R.
No.246/2009) C.C. Nos. 886/PW/2010,
1555/PW/2010, 2300/PW/2010, &
2728/PW/2010) … Respondent
WITH
CRIMINAL APPEAL NO.1038 OF 2013
1.Ratnakar Gautam Kamble @ Rattu,
Age: 41 years, residing at E/103,
Bandra Police Line, R. K. Patkar Marg,
Bandra (West), Mumbai:400050.
2. Arvind Arjun Sarvankar,
Age: 50 years, residing at S. V. Road,
Kandivali (West), Mumbai.
As per Court's order dated 23/2/2021,
orig. Accused No. 22 stands abated.
(Expired)
… Appellants
(Orig. Accused Nos.
3 and 22)
Versus
The State of Maharashtra (at the instance
of SIT (Versova Police Station C. R.
No.245/2009) C.C. Nos. 886/PW/2010,
1555/PW/2010, 2300/PW/2010, &
2728/PW/2010) … Respondent
WITH
CRIMINAL APPEAL NO.1080 OF 2019
Vinayak Balasaheb Shinde @ Veenu,
Age: 49 years, Occ : Nil,
S.Q. Pathan / N.S. Chitnis 7/867
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Residing at Plot No. 2, Gold Sunit CHS,
Kalwa Naka, Opp. Akash Bar, … Appellant
Kalwa Road, District: Thane. (Org.Accused No.7)
Versus
The State of Maharashtra,
(At the instance of SIT (Versova Police
Station, C.R. No. 246/2009) … Respondent
WITH
CRIMINAL APPEAL NO.1177 OF 2019
Devidas Gangaram Hari Sakpal,
Age: 52 years, Occ : Service,
R/O. 48/6, Worli Police Camp,
Sir Pochkhanwala Road, … Appellant
Worli, Mumbai 400 025. (Org.Accused No.13)
Versus
The State of Maharashtra,
(Through Inspector of Police,
Spl. Investigation Team – Versova Police
Station - C.R. No. 246/2009) … Respondent
WITH
CRIMINAL APPEAL NO.1239 OF 2019
Anant Balaji Patade,
R/O. : Misquitta House,
First Floor, Bajaj Road,
Vile Parle (W), Mumbai - 400056
… Appellant
(Org.Accused No.18)
S.Q. Pathan / N.S. Chitnis 8/867
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Versus
The State of Maharashtra,
(through Special Investigating Agency) … Respondent
WITH
CRIMINAL APPEAL NO.1242 OF 2018
Dilip Sitaram Palande,
Aged about 57 years, Occ : Nil,
R/at 19/604, Sanskruti CHS,
Thakur Complex, … Appellant
Kandivali (East), Mumbai. (Org.Accused No.15)
Versus
The State of Maharashtra,
(At the instance of SIT / Versova Police
Station, Mumbai (C.R. No. 245/2009)
… Respondent
WITH
CRIMINAL APPEAL NO.1488 OF 2018
Pandurang Ganpat Kokam,
Age 56 years,
R/at : Chawl No. E/2, Room No.5,
Gamdevi Compound, Survey No. 79,
Mandeer Road, Meera Gavthan, … Appellant
Dist. Thane. (Org.Accused No.19)
Versus
The State of Maharashtra,
(At the instance of SIT / Versova Police
Station, Mumbai C.R. No. 246/2009) … Respondent
S.Q. Pathan / N.S. Chitnis 9/867
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WITH
CRIMINAL APPEAL NO.1490 OF 2018
Ganesh Ankush Harpude,
Age: 58 years,
R/at :- 6/114, Police Quarters, D.N. … Appellant
Nagar, Andheri (W), Mumbai (Org.Accused No.17)
Versus
The State of Maharashtra,
(At the instance of SIT/Versova Police
Station. Mumbai C.R. No. 246/2009) … Respondent
WITH
CRIMINAL APPEAL NO.1493 OF 2018
Prakash Ganpat Kadam,
Age : 61 years,
R/at : Plot No. 842, B/18,
Shree Shiv Samarth CHS,
Sector No. 8, Charkop, … Appellant
Kandivali (W), Mumbai – 400 067 (Org.Accused No.16)
Versus
The State of Maharashtra,
(At the instance of SIT / Versova Police
Station, Mumbai C.R. No. 246/2009) … Respondent
WITH
CRIMINAL APPEAL NO.350 OF 2015
S.Q. Pathan / N.S. Chitnis 10/867
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The State of Maharashtra
(at the instance of SIT (Versova Police
Station C.R.No.246/2009) CC. Nos.
886/PW/2010,1555/PW/2010,
2300/PW/2010 and 2728/PW/2010)
… Appellant
(Orig.Complainant)
Versus
Pradeep Rameshwar Sharma,
Age 49 years,
th
R/o 6 floor, Bhagwan Bhawan,
J. B. Nagar, Andheri (East),
Mumbai.
… Respondent
(Orig.Accused No.1)
WITH
CRIMINAL APPEAL NO.854 OF 2013
Ramprasad Vishwanath Gupta,
Age 38 years, Occ: Advocate, R/at
87/B/601, Madhukunj CHS,
Opp. Pant Walawalkar High School,
Mother Dairy Road, Nehru Nagar,
Kurla (E), Mumbai 400 024. … Appellant/Victim
Versus
1. Pradeep Rameshwar Sharma,
Age 49 years, Occ: Police Inspector,
th
R/at 6 floor, Bhagwan Bhavan,
J. B. Nagar, Andheri (E),
Mumbai 400 067.
… Respondent No.1/
(Original A/No.1)
2. The State of Maharashtra,
(At the instance of S.I.T. through `
Versova Police Station
Vide C.R. No. 246/2009)
… Respondent No. 2
S.Q. Pathan / N.S. Chitnis 11/867
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WITH
CRIMINAL REVISION APPLICATION NO.182 OF 2023
Ramprasad Vishwanath Gupta,
Age 38 years, Occ: Advocate,
R/at 87/B/601, Madhukunj CHS,
Opp. Pant Walawalkar High School,
Mother Dairy Road, Nehru Nagar,
Kurla (E), Mumbai 400 024 … Appellant/Victim
Versus
1. Tanaji Bhausaheb Desai,
Age 42 years, R.o :- A / 77,
Worli Police Camp, Mumbai-400 025.
2. Ratnakar Gautam Kamble @ Rattu,
Age: 38 years, R/o :- E / 103,
Bandra Police Line, R.K. Patkar Marg,
Bandra(W), Mumbai 400 050.
3. Vinayak Babasaheb Shinde @ Veenu,
Age: 41 years, R/o:-Plot No.2,
Gold Sunit CHS, Kalwa Naka,
Opp. Akash Bar, Kalwa Road,
District – Thane.
4. Pradeep Pandurang Suryawanshi @
Nana, Age:-57 years, R/o :- Ravi
nd
Kiran CHS, 2 Floor, Room No.202,
Opp. Sayali International School,
Gorai Road, Borivali (W), Mumbai.
5. Nitin Gorakhnath Sartape,
Age: 46 years, R/o:- U/14, Hanjur
Nagar, Pump House, Andheri (E),
Mumbai.
S.Q. Pathan / N.S. Chitnis 12/867
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6. Devidas Gangaram Hari Sakpal,
Age: 45 years, R/o :- 48/06,
Worli Police Camp, Mumbai 400 025.
7. Dilip Sitaram Palande, Age: 50 years,
R/o :- 19/604, Sanskruti CHS,
Thakur Complex, Kandivali(E),
Mumbai.
8. Prakash Ganpat Kadam,
Age: 53 years, R/o :- A-26,
Police Quarters, S.V. Road, Kandivali,
Mumbai.
9. Ganesh Ankush Harpude,
Age: 49 years, R/o:- 6/114,
Police Quarters, D.N. Nagar,
Andheri (W), Mumbai.
10.Anand Balaji Patade,
Age: 39 years, R/o :-Miskita House,
First Floor, Bajaj Road,
Vile Parle (W), Mumbai.
11. Pandurang Ganpat Kokam,
Age: 49 years, R/o :-E-2/5,
Mira Gaothan Mandir Road,
Gaodevi Compound, Mira Road,
Thane.
12. Sandip Hemraj Sardar,
Age: 37 years, R/o:- 131,
Building No.4, Aram Nagar,
Police Quarters, Seven Bungalow,
Andheri (W), Mumbai.
S.Q. Pathan / N.S. Chitnis 13/867
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13. The State of Maharashtra
(at the instance of S.I.T. through
Versova Police Station Vide C. R.
No. 246/09).
… Respondents
Mr. Sudeep Pasbola a/w Mr. Ayush Pasbola i/b Mr. Rahul Arote
for appellant in Appeal/1080/2019
Mr. Sanjeev Kadam a/w Ms. Aditi Rajput, Mr. Prashant Raul,
Mr.Pratik Deshmukh & Mr. Mayur Sanap i/b Mr. Jagdish Shetty
for appellant in Appeal/944/2013
Mr. Jagdish Shetty for Appellant No. 8, 10, 12 & 21 in
Appeal/942/2013
Mr. Jagdish Shetty a/w Mr. Mohammed Ayub Shaikh and
Mr. U.S.Vanjara for Appellant No. 5 & 6 in Appeal/943/2013
Ms. Pradnya Talekar a/w Ms.Kalyani Mangave a/w Ms. Madhavi
Ayyappan i/b Talekar & Associates for appellant in
Appeal/151/2021
Mr. C. K. Pendse a/w Ms. Ilsa Shaikh i/b Mr. Shantanu R. Phanse
for appellant in Appeal/707/2019
Mr. Girish Kulkarni, Sr. Adv a/w Mr. Kripashankar Pandey and
Ms. Mrunmayi Kulkarni i/b Mr. Omkar Ghag for Appellant
No.18 in Appeal/1490/2018
Mr. Ashwin Thool a/w Mr. Sarthak Bharsakle, Ms. Archismati
Chandramore and Mr. Sushant Mahadik for the appellant in
Appeal/1239/2019
S.Q. Pathan / N.S. Chitnis 14/867
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Mr. Nagraj Shinde for Appellant in Appeal/86/2021
Mr. Sushil Gaglani a/w Mr. Dipen Furia for appellant in
Appeal/104/2021
Mr. Prakash Shetty a/w Mr. Sarthak Shetty, Mr. Abhishek Singh
and Mr.Dnyanesh Bhatkhande for Appellant in
Appeal/1177/2019
Mr. Manish Mazgaonkar for appellant in Appeal/1488/2018 and
Appeal/1493/2018
Mr. Dilip Sitaram Palande, Appellant No.15 appearing in person
in Appeal/1242/2018
Mr. Waqar Pathan a/w Mr.Ayush Pasbola for appellant in
Appeal/1038/2013
Dr.Yug Mohit Chaudhry a/w Mr. Harshwardhan Akolkar &
Mr.Rohit Vaishya i/b Mr. R.V.Gupta Appellant in
Appeal/854/2013
Mr.R.V.Gupta Applicant in person in Revn/182/2023
Mr. Rajiv Chavan, Sr. Adv / Spl.PP a/w Mr. J.P. Yagnik, Addl.PP,
Mrs. P.P. Shinde, APP, Mr. Gopal Parab, Ms.Priyanka B. Chavan,
Ms. Bhairavi Waradekar and Ms. Priya Mehra for State
Mr. Aabad Ponda, Sr. Adv a/w Mr. Subhash Jadhav,
Mr. Chandansingh Shekhawat and Mr. Dilip Rawat for
Respondent No.1 in Appeal/350/2015 and Appeal/854/2013
S.Q. Pathan / N.S. Chitnis 15/867
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Mr. Sunil Gaonkar , ACP, CSMT Railway, present
Mr. Vinay Ghorpade, Sr.P.I., D.B.Marg Police Station, present
Mr. Manoj Chalke, PI, Kasturba Marg Police Station, present
Mr. Sunil Lokhande, PI, State CID Konkan Bhavan, present
Mr. K.M.Mallikarjuna Prasanna, Spl, IGP, Establishment, present
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
th
RESERVED ON : 8 NOVEMBER 2023
th
PRONOUNCED ON : 19 MARCH 2024
JUDGMENT (Per Revati Mohite Dere, J.) :
1 At the outset, we wish to spell out the names of the
appellants/accused and the acquitted accused as appearing in the
charge-sheet and the trial and would refer to them as original
accused numbers, for the sake of convenience, while deciding all
the appeals. The names of the accused are reproduced herein-
under:
S.Q. Pathan / N.S. Chitnis 16/867
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Ori. Accused
Nos.
Names of Accused
Accused 1 Pradeep Rameshwar Sharma (Police Personnel-Acquitted)
Accused 2 Tanaji Bhausaheb Desai (Police Personnel)
Accused 3 Ratnakar Gautam Kamble @ Rattu (Police Personnel)
Accused 4 Shailendra Dhoopnarayan Pandey @ Pinky (Private
Person)
Accused 5 Hitesh Shantilal Solanki @ Dhabbu (Private Person)
Accused 6 Akhil Shirin Khan @ Bobby (Private Person)
Accused 7 Vinayak Babasaheb Shinde @ Veenu (Police Personnel)
Accused 8 Manoj Mohan Raj @ Mannu (Private Person)
Accused 9 Pradeep Pandurang Suryawanshi @ Nana (Police
Personnel)
Accused 10 Sunil Ramesh Solanki (Private Person)
Accused 11 Nitin Gorakhnath Sartape (Police Personnel)
Accused 12 Mohamed Shaikh @ Mohd. Taka Moiddin Shaikh
(Private Person)
Accused 13 Devidas Gangaram Hari Sakpal (Police Personnel)
Accused 14 Janardan Tukaram Bhanage (Private Person-deceased)
Accused 15 Dilip Sitaram Palande (Police Personnel)
Accused 16 Prakash Ganpat Kadam (Police Personnel)
Accused 17 Ganesh Ankush Harpude (Police Personnel)
Accused 18 Anand Balaji Patade (Police Personnel)
Accused 19 Pandurang Ganpat Kokam (Police Personnel)
Accused 20 Sandip Hemraj Sardar (Police Personnel)
Accused 21 Suresh Manju Shetty (Private Person)
Accused 22 Arvind Arjun Sarvankar (Police Personnel-deceased)
S.Q. Pathan / N.S. Chitnis 17/867
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2 By these appeals, the appellants (original accused Nos.
th
2 to 22) have impugned the judgment and order dated 12 July,
2013, passed by the Ad-hoc Additional Sessions Judge, City Civil
& Sessions Court, Greater Bombay, in Sessions Case No.
317/2010 (S.C.Nos. 510/2010, 673/2010, 781/2010) , convicting
and sentencing them as under:
- Original Accused Nos. 2 to 22 have been convicted for
the offence punishable under Section 120B r/w 364 of the IPC
and are sentenced to suffer imprisonment for life and to pay fine
of Rs.5,000/- each, in default, to suffer rigorous imprisonment for
a period of two years;
- Original Accused Nos. 2 to 22 have been convicted for
the offence punishable under Section 120B r/w 365 of the IPC
and are sentenced to suffer rigorous imprisonment for seven years
and to pay fine of Rs.5,000/- each, in default, to suffer rigorous
imprisonment for a period of one year;
S.Q. Pathan / N.S. Chitnis 18/867
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- Original Accused Nos. 2 to 22 have been convicted for
the offence punishable under Section 120B r/w 368 of the IPC
and are sentenced to suffer rigorous imprisonment for seven years
and to pay fine of Rs.5,000/- each, in default, to suffer rigorous
imprisonment for a period of one year;
- Original Accused Nos. 2 to 22 have been convicted for
the offence punishable under Section 120B r/w 302 of the IPC
and are sentenced to suffer imprisonment for life and to pay fine
of Rs.5,000/- each, in default, to suffer rigorous imprisonment for
a period of three years;
- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 143 of the
IPC and are sentenced to suffer rigorous imprisonment for six
months and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for one month;
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- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 144 of the
IPC and are sentenced to suffer rigorous imprisonment for two
years and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for three months;
- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 147 of the
IPC and are sentenced to suffer rigorous imprisonment for two
years and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for three months;
- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 148 of the
IPC and are sentenced to suffer rigorous imprisonment for three
years and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for three months;
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- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 149 r/w 364
of the IPC and are sentenced to suffer imprisonment for life and
to pay fine of Rs.5,000/- each, in default to suffer rigorous
imprisonment for two years;
- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 149 r/w 365
of the IPC and are sentenced to suffer rigorous imprisonment for
seven years and to pay fine of Rs.5,000/- each, in default to suffer
rigorous imprisonment for one year;
- Original Accused Nos.2 to 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 364 r/w 149
of the IPC and are sentenced to suffer imprisonment for life and
to pay fine of Rs.5,000/- each, in default to suffer rigorous
imprisonment for two years;
- Original Accused Nos.2 to 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 365 r/w 149
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of the IPC and are sentenced to suffer rigorous imprisonment for
seven years and to pay fine of Rs.5,000/- each, in default to suffer
rigorous imprisonment for one year;
- Original Accused Nos.9, 11, 13 to 20 and 22 have been
convicted for the offence punishable under Section 364 r/w 109
r/w 120B of the IPC and are sentenced to suffer imprisonment for
life and to pay fine of Rs.5,000/- each, in default to suffer
rigorous imprisonment for two years;
- Original Accused Nos.9, 11, 13 to 20 and 22 have been
convicted for the offence punishable under Section 365 r/w 109
r/w 120B of the IPC and are sentenced to suffer rigorous
imprisonment for seven years and to pay fine of Rs.5,000/- each,
in default to suffer rigorous imprisonment for one year;
- Original Accused Nos.2 to 22 have been convicted for
the offence punishable under Section 368 r/w 109 r/w 120B of
the IPC and are sentenced to suffer rigorous imprisonment for
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seven years and to pay fine of Rs.5,000/- each, in default to suffer
rigorous imprisonment for one year;
- Original Accused Nos.2, 3, 5, 13 and 16 have been
convicted for the offence punishable under Section 344 r/w 34 of
the IPC and are sentenced to suffer rigorous imprisonment for
three years and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for three months;
- Original Accused Nos.4, 6 to 12, 14, 15, 17 to 22 have
been convicted for the offence punishable under Section 344 r/w
109 r/w 120B of the IPC and are sentenced to suffer rigorous
imprisonment for three years and to pay fine of Rs.1,000/- each,
in default to suffer rigorous imprisonment for three months;
- Original Accused Nos.2, 9 and 15 have been convicted
for the offence punishable under Section 302 r/w 34 of the IPC
and are sentenced to suffer imprisonment for life and to pay fine
of Rs.5,000/- each, in default to suffer rigorous imprisonment for
three years;
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- Original Accused Nos.2 to 8, 10 to 14 and 16 to 22 have
been convicted for the offence punishable under Section 302 r/w
109 r/w 120B of the IPC and are sentenced to suffer
imprisonment for life and to pay fine of Rs.5,000/- each, in
default to suffer rigorous imprisonment for three years;
- Original Accused Nos.2, 3, 9, 11, 13, 15 to 20 and 22
have been convicted for the offence punishable under Section 201
r/w 34 of the IPC and are sentenced to suffer rigorous
imprisonment for three years and to pay fine of Rs.1,000/- each,
in default to suffer rigorous imprisonment for three months;
- Original Accused Nos.2 to 8, 10, 12, 14 and 16 have
been convicted for the offence punishable under Section 201 r/w
109 r/w 120B of the IPC and are sentenced to suffer rigorous
imprisonment for three years and to pay fine of Rs.1,000/- each,
in default to suffer rigorous imprisonment for three months;
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- Original Accused No.9 has been convicted for the
offence punishable under Section 201 of the IPC and are
sentenced to suffer rigorous imprisonment for three years and to
pay fine of Rs.1,000/- each, in default to suffer rigorous
imprisonment for three months;
- Original Accused Nos.2 to 8, 10 to 22 have been
convicted for the offence punishable under Section 201 r/w 109
r/w 120B of the IPC and are sentenced to suffer rigorous
imprisonment for three years and to pay fine of Rs.1,000/- each,
in default to suffer rigorous imprisonment for three months;
- Original Accused Nos.20 and 22 have been convicted for
the offence punishable under Section 174(A) of the IPC and are
sentenced to suffer simple imprisonment for three years and to
pay fine of Rs.1,000/- each, in default to suffer simple
imprisonment for three months;
- Original Accused Nos.2, 3, 7, 9, 11, 13, 15 to 20 and 22
have been convicted for the offence punishable under Section 119
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of the IPC and are sentenced to suffer rigorous imprisonment for
three years and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for three months.
3 Vide the same judgment and order, Pradeep Sharma
(OA1) was acquitted of all the offences punishable under the
following Sections :
- Sections 120B r/w 364, 365, 368 and 302 of the IPC;
- Section 368 of the IPC;
- Section 364 r/w 109 r/w 120B and 365 r/w 109 r/w 120B
of the IPC;
- Section 368 r/w 109 r/w 120B of the IPC ;
- Section 344 r/w 34 of the IPC;
- Section 302 r/w 34 of the IPC;
- Section 302 r/w 109 r/w 120B of the IPC;
- Section 201 r/w 109 r/w 120B of the IPC;
- Section 119 of the IPC.
4 Against the acquittal of Pradeep Sharma (OA1), the
State of Maharashtra, as well as the complainant-Ramprasad
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Gupta (brother of the deceased) have filed Criminal Appeal No.
350/2015 and Criminal Appeal No. 854/2013 respectively.
Similarly, the complainant-Ramprasad Gupta (brother of the
deceased) has also filed the aforesaid Revision Application, being
Criminal Revision Application No.182/2023, as against 12
appellants/accused, seeking enhancement of their sentence, i.e.
from life to death.
5 Both the said appeals and the Criminal Revision
Application have been tagged alongwith the aforesaid appeals
filed by the appellants/accused against their conviction and as
such, all the appeals/revision are heard together. Considering that
the evidence in all the appeals is the same, all the appeals i.e.
appeals against conviction and the acquittal appeal, are decided
together, as the findings are overlapping.
6 Before we proceed, we may note that during the
pendency of the aforesaid appeals, A14 (Janardan Tukaram
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Bhanage) and OA22 (Arvind Arjun Sarvankar) expired and as
such, the appeals filed by them stands abated, only qua them.
I. BACKGROUND OF THE CASE
7 The prosecution case, in brief, is that Ramnarayan
Vishwanath Gupta @ Lakhanbhaiya @ Pandeyji (hereinafter
referred to as ‘Ramnarayan’ for the sake of brevity) was abducted
th
alongwith his friend Anil Bheda on 11 November 2006 at
around 12:30 hrs. by the police in a Qualis; from there, they
were taken to Bhandup; then to D.N. Nagar Police Station; that
from D.N. Nagar Police Station, the police took Ramnarayan
Gupta to Nana Nani Park and threw his dead body there, fired
again and showed that Ramnarayan Gupta was killed in a
genuine encounter, when infact, it was a fake encounter. It is
further the prosecution case, that Anil Bheda was wrongfully
confined by the police and others, so that, he would not spill the
beans regarding their abduction and furnish other details.
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8 Whereas, the case of the appellants/accused, in brief,
is that Ramnarayan Gupta was never abducted and that pursuant
to a tip-off received i.e. secret information, a trap was laid and
that Ramnarayan Gupta was killed, when he fired at the police
party, in retaliation/self defence and as such, it was a genuine
encounter. The prosecution case of abduction of Ramnarayan and
Anil Bheda was completely denied by the appellants/accused.
9 The details of both the versions will be set-out in
greater detail, when we proceed to analyse the evidence on
record.
10 Before we advert to the prosecution and the defence
case in detail as well as the evidence on record, we would like to
place on record the submissions canvassed by the learned counsel
for each of the appellants/accused on the one hand and the
learned Spl.PP for the State and the learned counsel for the
complainant on the other, in the aforesaid appeals.
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II. SUBMISSIONS OF THE APPELLANTS/ACCUSED
A. Submissions of Mr. Pasbola, learned counsel for the
appellant-Vinayak Babasaheb Shinde @ Veenu (OA7)
in Criminal Appeal No.1080/2019:
11 Mr. Pasbola, learned counsel for Vinayak Shinde
(A7) submitted that there are three versions which have come on
record in the said case i.e. police (accused) version; the
prosecution case; and, the case of Aruna Bheda (PW40). He
submitted that infact, the encounter had taken place as stated by
the police i.e. accused and that it was a genuine encounter and
that the police have been falsely implicated in the said case.
According to Mr. Pasbola, the prosecution case as far as the
appellant A7) is concerned, rests on circumstantial evidence and
that too, only in the form of Call Detail Records/Subscriber Detail
Records (CDR/SDR), which, by itself, is not sufficient to point to
the complicity of the appellant in the said case. He further
submitted that there are several
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contradictions/improvements/omissions that have come on record
inter se i.e. in the evidence of Ramprasad Gupta (PW1), Ganesh
Iyer (PW2), Shyamsunder Gupta (PW3), Dheeraj Mehta (PW38),
Aruna Bheda (PW40) and Shankar @ Girish Dalsingh (PW57)
and as such, in light of the same, the prosecution case of
abduction of Ramnarayan and Anil Bheda cannot be accepted. He
further submitted that there is no iota of evidence to show that
Ramnarayan and Anil Bheda were abducted from Sector 9, Vashi
as alleged, inasmuch as, there are no eye-witnesses to the same
and that the evidence relied upon by the prosecution, is based on
hearsay evidence, which is inadmissible. He submitted that the
appellant has been falsely implicated by Special Investigating
Team (SIT) (prosecuting agency). According to Mr. Pasbola, the
witnesses examined to prove CDRs i.e. the Nodal Officers of
various companies, cannot be relied upon, having regard to the
discrepancies that have come in their evidence with respect to
different addresses of the same numbers and the change in the
Base Transceiver Station (BTS) or Cell Towers address. He
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submitted that Section 65B Certificates as mandated in law, have
also not been furnished or produced by the Nodal Officers
examined in this behalf.
11.1 Mr. Pasbola further submitted that as far as Exh.
688-entry made by Sanjay Apage, PN No. 30704 (PW90), is
concerned, the same cannot be relied upon, as it appears to be
fabricated and that the said entry by itself, is not sufficient to infer
that the appellant (A7) was using the mobile number attributed
to him, at the relevant time. He further submitted that there is no
evidence to show that Avinash Shinde is the brother of the
appellant, in whose name the mobile stood, inasmuch as, no
question under Section 313 of the Code of Criminal Procedure
(Cr.PC) has been put to the said witness. He further submitted
that as far as CDR evidence is concerned, the learned Judge has
put a composite question pertaining to all Exhibits, exhibited by
the witnesses to all the accused and as such, the same will have to
be excluded from consideration under Section 313 Cr.PC Thus,
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according to Mr. Pasbola, from the circumstances brought on
record, as far as the appellant is concerned, it is difficult to draw
an irresistible conclusion as against the appellant, vis-a-vis, his
involvement in the commission of the crime and as such, he be
acquitted of all the offences for which he has been convicted.
B. Submissions of Mr. Sanjeev Kadam, learned counsel for the
appellant – Shailendra Dhoopnarayan Pandey @ Pinky (OA4)
in Criminal Appeal No. 944/2013:
12 Mr. Sanjeev Kadam, learned counsel appearing for the
aforesaid appellant submitted that although the appellant has
been convicted for the charge under Section 302 of IPC i.e. for
the death of Ramnarayan, there is no material whatsoever to
connect the appellant with the alleged fake encounter. He further
submitted that to prove conspiracy with respect to abduction of
Ramnarayan and Anil Bheda, the prosecution relied on the
evidence of PW38-Dheeraj Mehta; PW40-Aruna Bheda; PW54-
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Changdeo Godse (Nodal Officer, Vodafone); PW64-Sunil Sawant
(Nodal Officer); PW84-Satish Rane (Special Metropolitan
Magistrate, who conducted the Test Identification Parade);
PW88-Mohammad Usman Shaikh, an employee of a mobile shop,
on whose name a sim card was obtained and handed over by
PW96-Mehamood Shaikh (mobile shop owner) to the appellant-
Shailendra; and PW96-Mehamood Shaikh (mobile shop owner)
who was declared hostile, since he did not support the
prosecution case. He submitted that the evidence of none of the
witnesses i.e. PW1-Ramprasad Gupta; PW2-Ganesh Iyer or PW3-
Shyamsunder Gupta can be relied upon, inasmuch as, the same is
contradictory, inter se, inconsistent and contrary to the evidence
of PW40-Aruna Bheda, with respect to abduction. He further
submitted that the appellant is not a police officer nor allegedly
had any motive to kill Ramnarayan. He submitted that although
the appellant is alleged to be an informer of the police, the
prosecution has not produced any material in support thereof.
He further submitted that the prosecution case rests entirely on
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circumstantial evidence and that the hearsay evidence of the
witnesses, with respect to abduction, cannot be relied upon, being
inadmissible. He submitted that the prosecution is relying on
CDRs of the appellant to show that the appellant was in touch
th
with the other co-accused on the date of the incident i.e. 11
November 2006, and that, that by itself is not sufficient to point
to the complicity of the appellant. He further submitted that
none of the witnesses have either identified the appellant in the
test identification parade held nor in the Court. According to Mr.
Kadam, the test identification parade itself suffers from several
infirmities and lacunae, inasmuch as, the photograph of the
appellant was published in the newspapers. Learned counsel
relied on Exh. 782 i.e. the DNA Newspaper, which had published
th
the photograph of the appellant on 12 January 2010, whereas,
th
the test identification parade was held on 20 January 2010. He
submitted that PW40-Aruna Bheda has not identified the
appellant and it was Anil Bheda (now deceased), who had
identified A4-Shailendra, however, in view of the demise of Anil
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Bheda and for the reasons set-out herein-above, the test
identification parade cannot be relied upon. He further
submitted that no reliance can be placed even on the evidence of
PW88-Mohammad Usman Shaikh, an employee of a mobile shop
of which PW96-Mehamood Shaikh is the owner, inasmuch as,
PW96-Mehamood Shaikh has not supported the prosecution case
i.e. that the sim card was purchased in the name of PW88-
Mohammad Usman Shaikh and was handed over by PW96-
Mehamood Shaikh to the appellant. He further submitted that
the evidence of PW88-Mohammad Usman Shaikh shows that the
card was allegedly purchased on his name, by using his documents
in the year 2007 (mobile sim No. XXXXXX6311), whereas, the
incident is of November 2006.
12.1 Learned counsel further submitted that the
prosecution had examined PW103-Amit Patel to link the
appellant with Janardan Bhanage (A14), vis-a-vis motive,
however, the said witness was declared hostile. He submitted that
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suggestions were also made to this witness in his cross-
examination, that he was an informer of Pradeep Sharma (OA1)
and that Janardan Bhanage (A14) had disclosed to him about
bumping off, of Ramnarayan (deceased) and that he was close to
Janardan Bhanage (A14), however, the said suggestions have been
denied by the said witness. Learned counsel further relied on the
evidence of PW65-Yogesh Shreekrushna Rajapurkar (Nodal
Officer, Vodafone), to show the discrepancy between Exhibits
571 and 575. He submitted that the evidence of the said witness
is not trustworthy in view of the evidence that has come on
record with respect to locations. According to him, the
annexures to Exhibits 571 and 575 are signed by the signatory
only on the letterhead and not on the annexures, and as such, the
annexures which pertain to the CDRs, cannot be relied upon.
12.2 According to Mr. Kadam, the evidence of the Nodal
Officers examined by the prosecution, in particular, the evidence
of PW62-Rakeshchandra Prajapati (Nodal Officer of Loop
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Mobile), shows that the co-accused Hitesh Solanki (A5) had
th
called Shailendra Pandey (A4) twice on 11 November 2006 i.e.
at 16:30 hrs. and 17:07 hrs. He submitted that timings as stated
aforesaid do not match with the time when the alleged abduction
took place. He submitted that even otherwise, it is the
prosecution case that accused No.5’s phone was being used by
Pradeep Sharma (OA1). He further submitted that the
prosecution has failed to prove that Shailendra Pandey (A4) was
part of the second incident i.e. the incident of encounter which
took place at Nana Nani Park.
12.3 Mr. Kadam further submitted that the same set of
questions were put to all the accused in their 313 statements and
that no specific question which was incriminating as against the
th
appellant was put to him that he was at Vashi on 11 November
2006 at 16:30 hrs. and 17:07 hrs. He further submitted that
although two sim cards were allegedly used by Shailendra Pandey
(A4), one standing in his own name and one given to him post the
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incident, no CDR has been collected with respect to the said sim
cards, post the incident.
12.4 In conclusion, Mr. Kadam submitted that the trial
Court has erred in observing that Shailendra Pandey (A4) was
physically present at Nana Nani Park, Andheri, though he was
not present at the said spot. Mr. Kadam relied on two judgments
1
of the Apex Court in Shankar v. State of Maharashtra vis-a-vis
motive in a case of circumstantial evidence and Ravindra Singh v.
2
State of Punjab , vis-a-vis requirement of 65B Certificate, in
support of his submission.
12.5 He further submitted that considering that there is no
evidence to connect the appellant-Shailendra Pandey (A4) to the
abduction or to the subsequent elimination of Ramnarayan, and
considering the fact, that the appellant had no motive nor any
role was attributed to him, the appellant be acquitted of the
offences for which he has been convicted.
1 2023 SCC OnLine SC 268
2 (2022) 7 SCC 581
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C. Submissions of Mr. Jagdish Shetty, learned counsel for
the appellants - Manoj Mohan Raj @ Mannu (A8); Sunil
Solanki (A10); Mohammed Shaikh @ Takka (A12) and Suresh
Shetty (A21) in Criminal Appeal No.942/2013:
13 Learned counsel appearing for appellants-Manoj @
Mannu (A8), Sunil Solanki (A10), Mohammed Shaikh @ Takka
(A12) and Suresh Shetty (A21) submitted that all the said
appellants are private persons, who have been prosecuted
alongwith the police officers for the abduction of Ramnarayan
and Anil Bheda; wrongful confinement of Anil Bheda; and, for
the death of Ramnarayan. He submitted that the only evidence as
against the said appellants was the evidence of Anil Bheda, with
respect to abduction, however, in view of Anil Bheda’s demise,
there is no other witness who speaks about the complicity of the
said appellants, in the abduction of Ramnarayan and Anil Bheda.
He further submitted that there are no CDRs of the said persons
collected by the prosecution.
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13.1 As far as the evidence of Parmanand Desai (PW14) is
concerned, learned counsel for the appellants submitted that the
evidence of this witness will reveal that Sunil Solanki (A10) was
working as a sweeper in the Mumbai Municipal Corporation;
th
that on 9 November 2006, he had taken half-day leave; that on
th th
10 November 2006, a weekly-off and on 11 November 2006,
casual leave and that the same, by itself cannot be said to be
incriminating.
13.2 As far as Sujit Mhatre (PW16) is concerned, Mr.
Shetty submitted that the said witness has not supported the
prosecution case entirely. He submitted that his evidence is silent
with respect to Sunil Solanki (A10), taking Qualis from him, for
his personal use in November 2006. He further submitted that
the evidence of the panch i.e. Maruti Naikade (PW13) with
respect to the seizure of the Qualis vehicle in March, 2010,
allegedly used in the abduction, suffers from several infirmities,
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inasmuch as, there is discrepancy between the chassis and engine
number, as reflected in Exh. 182 (panchnama) and Exh. 183 (the
verification report). He submitted that hence, there is no clarity
with respect to the description of the vehicle so seized. He
further submitted that the prosecution had examined Sundar
Tendulkar (PW9), who had purchased the vehicle from Sujit
Mhatre (PW16) and who had later sold the same to Mrugesh
Negandhi (PW10). He submitted that the evidence of these
witnesses do not show as to when Sujit Mhatre (PW16) was in
possession of the alleged Qualis vehicle, which was used in the
commission of the abduction. He submitted that neither is the
evidence of Mrugesh Negandhi (PW10) relevant, inasmuch as, the
said witness had purchased the Qualis used in the commission of
the offence from Sundar Tendulkar (PW9). According to Mr.
Shetty, the prosecution ought to have examined Ashok Shah from
whom Sujit Mhatre (PW16) had allegedly purchased the Qualis
vehicle. Learned counsel for the appellants submitted that
although the RTO Officer i.e. Sandesh Chavan (PW48) was
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examined to show the ownership of the vehicle, the document
which is at Exh. 359 would only show that in 2006, Ashok Shah
st
was the owner of the vehicle and that in 2007 i.e. on 21
February 2007, Sujit Mhatre (PW16) was the owner. He
submitted that the said evidence of Sandesh Chavan (PW48)
contradicts the evidence of Sujit Mhatre (PW16), who has stated
that he was in possession of the Qualis vehicle of Ashok Shah in
2006 itself, and that he had given the said Qualis vehicle (used in
abduction) and another Qualis vehicle to the accused in
November 2006.
13.3 According to the learned counsel for the appellants,
the Special Executive Magistrate-Satish Rane was examined as
PW84, for proving the test identification parade held by him,
however, his evidence would only show that Anil Bheda
(deceased) had identified Manoj @ Mannu (A8) and Sunil Solanki
rd
(A10) on 23 March 2010 (Exh. 643) and had identified
th
Mohamed Shaikh @ Mohd. Taka (A12) on 28 June 2010 (Exh.
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645). He submitted that since Anil Bheda, before his evidence
could be recorded, had died, in the absence of any substantive
evidence, the identification by Anil Bheda, of these accused
cannot be relied upon.
13.4 As far as Mohammad Usman Shaikh (PW88) is
concerned, learned counsel for the appellants submitted that the
said witness had turned hostile. He submitted that the
prosecution, even otherwise, had examined this witness to
establish/show the connection between Shailendra Pandey @
Pinky (A4) and Mohamed Shaikh @ Mohd. Taka (A12), post the
incident i.e. in 2007. He submitted that even the identification of
Mohamed Shaikh @ Mohd. Taka (A12) by Amit Jambotkar
(PW8), cannot be said to be incriminating.
13.5 Mr. Shetty submitted that PW110- K.M.M. Prasanna,
in his cross-examination, had stated that psychological tests were
conducted on Ramprasad Gupta (PW1) and three other witnesses
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i.e. PW2-Ganesh Iyer, Anil Bheda and PW40-Aruna Bheda,
however, the results were inconclusive and hence, the evidence of
these witnesses, including that of PW40-Aruna Bheda cannot be
relied upon.
13.6 Mr. Shetty submitted that the learned trial Judge has
convicted Manoj @ Mannu (A8), Sunil Solanki (A10),
Mohammed Shaikh @ Takka (A12) and Suresh Shetty (A21) ,
only on the basis of the progress reports submitted by
K.M.M.Prasanna (PW110), there being no other material to
connect the appellants with the alleged crime.
13.7 In conclusion, he submitted that the evidence on
record is not sufficient to point to the complicity of the appellants
in the offence, inasmuch as, the circumstances on record that, the
vehicle used in the commission of the offence i.e. for abduction,
has not been identified; that the prosecution has not proved who
was present in the vehicle at the relevant time; and that there are
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no CDRs to show the presence of the appellants at the time of
abduction of Ramnarayan and Anil Bheda. He submitted that in
this view of the matter, the appellants be acquitted of the offences
for which they have been convicted.
D. Submissions of Mr. Jagdish Shetty, learned counsel for the
appellants - Hitesh Solanki @ Dhabbu (A5) and Akhil Khan @
Bobby (A6) in Criminal Appeal No.943/2020:
14 Mr. Shetty, learned counsel for Hitesh Solanki @
Dhabbu (A5) and Akhil Khan @ Bobby (A6) submitted that the
prosecution has failed to prove that PSI Ghorpade (PW108) had
visited Thane Central Jain, pursuant to an order passed by the
Court granting him permission to obtain the specimen
handwriting of Hitesh Solanki @ Dhabbu (A5), having regard to
the admission of this witness in his cross-examination i.e. there is
no record as to when PSI Ghorpade visited the jail.
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14.1 Learned counsel further submitted that the evidence
of Ravsaheb Ikke (PW76) cannot be relied upon, inasmuch as, his
statement under Section 161 was not recorded by SIT, during
investigation. He submitted that hence, having regard to the
same, the Station Diary entry i.e. Exh. 620 and 620-A produced
th
by the said witness dated 28 September 2010 at 19:40 hrs.
stating therein, that he received a telephonic call from PSI
Ghorpade, that Hitesh Solanki @ Dhabbu (A5) had refused to
give his specimen handwriting, cannot be relied upon.
14.2 Mr. Shetty, learned counsel for the aforesaid
appellants (A5 and A6), submitted that to prove wrongful
confinement of Anil Bheda, the prosecution examined Sumant
Bhosale (PW32); Milind More (PW55); Naresh Phalke (PW45);
Madan More (PW43); and Aruna Bheda (PW40), however, their
evidence does not inspire confidence.
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14.3 As far as Sumant Bhosale (PW32) is concerned,
learned counsel for the appellants submitted that the said witness
has not identified either Hitesh Solanki @ Dhabbu (A5) or others.
He submitted that as far as Milind More (PW55) is concerned,
the said witness has stated in his evidence, that he was knowing
Hitesh Solanki @ Dhabbu (A5), as Hitesh, who was working for
Pradeep Sharma (OA1) and nothing more than that. He
submitted that the said witness has not stated that Hitesh Solanki
@ Dhabbu (A5) was present with them in the Qualis when he
went to Bhatwadi at Ghatkopar, as well as to Mid-town Hotel,
Andheri.
14.4 As far as Akhil Khan @ Bobby (A6) is concerned,
there is no mention of him, by the said witnesses.
14.5 As far as Naresh Phalke (PW45) is concerned, learned
counsel submitted that the said witness has neither identified nor
spoken about the appellants i.e. Hitesh Solanki @ Dhabbu (A5)
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and Akhil Khan @ Bobby (A6).
14.6 As far as Vishwajit Chavan (PW53) is concerned,
learned counsel for the appellants submitted that the said witness
has only stated that Hitesh Solanki @ Dhabbu (A5), was working
for Pradeep Sharma (OA1) and that Hitesh was with Anil Bheda
(deceased) in Mid-town hotel, Andheri. Mr. Shetty submitted
that although the said witness has stated that at the behest of
Pradeep Suryawanshi @ Nana (A9), he went to Mid-town Hotel
st th th
on three dates i.e. on 1 February, 4 February and 19 March
2010, however, despite the requirement of making notings in
station diary, when leaving, there is no station diary entry of the
same.
14.7 Mr. Shetty further submitted that although Aruna
Bheda (PW40) has identified Hitesh @ Dhabbu (A5), as having
taken her and Anil Bheda to Kolhapur, however, thereafter, the
prosecution has not proved that Hitesh @ Dhabbu (A5) had
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accompanied Anil Bheda. He submitted that the hotel in which
Aruna Bheda (PW40) and her husband-Anil Bheda were kept in
Kolhapur, has not been disclosed by her in her statement before
the SIT, nor have the room numbers been disclosed. He further
submitted that the prosecution has not brought on record the
hotel register where Aruna Bheda (PW40) and her husband - Anil
Bheda were allegedly confined by Hitesh @ Dhabbu (A5) in a
Hotel in Kolhapur. He further submitted that neither the
Manager nor any employee of the hotel in Kolhapur, where
Aruna Bheda (PW40), her husband-Anil Bheda and Hitesh @
Dhabbu (A5) stayed, have been examined and as such, there is no
material to show that Hitesh @ Dhabbu (A5) had taken Aruna
Bheda (PW40) and Anil Bheda to Kolhapur and confined them.
He further submitted that there are several discrepancies in the
evidence of Aruna Bheda (PW40) with respect to when she was
taken to Kolhapur by Hitesh @ Dhabbu (A5). According to Mr.
Shetty, it is alleged by the prosecution that Hitesh @ Dhabbu (A5)
had given Aruna Bheda (PW40), a prepared affidavit (Exh. 335)
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to be presented before the Magistrate in the 176 inquiry,
however, except for the say of Aruna Bheda (PW40), there is no
other material to show that the said affidavit was prepared by
Hitesh @ Dhabbu (A5). It is further submitted that thus, the
prosecution has failed to prove that Aruna Bheda (PW40) and her
husband-Anil Bheda were wrongfully confined in Kolhapur by
Hitesh @ Dhabbu (A5). He further submitted that the same
would be evident from the cross-examination of Aruna Bheda
(PW40), that she did not disclose the said fact i.e. of her being
taken by Hitesh @ Dhabbu (A5) against her will and wishes,
despite having several opportunities to disclose the same.
14.8 As far as Jayesh Kesariya (PW50) is concerned,
learned counsel for the appellants submitted that there is an
omission with respect to the presence of Hitesh @ Dhabbu (A5)
at the Collector’s Office when Anil Bheda and Aruna Bheda
(PW40) had gone for recording their statements before the
Special Land Acquisition Officer (SLAO) and as such, the
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evidence of Jayesh Kesariya (PW50), does not further the
prosecution case.
14.9 As far as Ajendrasingh Thakur (PW87), Senior PI
attached to D.N. Nagar Police Station is concerned, learned
counsel submitted that all that the said witness has stated is that
Hitesh @ Dhabbu (A5) and Akhil Khan @ Bobby (A6) used to
come to Pradeep Sharma’s (OA1) office at D.N. Nagar Police
Station and that he had seen Hitesh @ Dhabbu (A5) and Akhil
Khan @ Bobby (A6) sitting there with Pradeep Sharma (OA1).
He submitted that the said evidence cannot be stated to be
incriminating as against Hitesh @ Dhabbu (A5) and Akhil Khan
@ Bobby (A6).
14.10 It is further submitted that the prosecution had
examined Geetanjali Datar (PW68), to show that Geetanjali Datar
(PW68) had made three calls on a mobile number i.e.
XXXXXX2987 standing in Hitesh @ Dhabbu’s (A5) name, but
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was purportedly being used by Pradeep Sharma (OA1) i.e. the two
th
calls on 11 November 2006 (one outgoing and one incoming)
th
and one on 15 November 2006 (outgoing call), however, the
said witness has turned hostile.
14.11 Thus, Mr. Shetty submitted that considering the
aforesaid, i.e. there being no material on record qua the
appellants – Hitesh Solanki @ Dhabbu (A5) and Akhil Khan @
Bobby (A6), they be acquitted of all the offences.
E. Submissions of Ms. Pradnya Talekar, learned counsel for the
appellant-Pradeep Suryawanshi @ Nana (A9) in Criminal
Appeal No. 151/2021:
15 Ms. Talekar, learned counsel for the appellant-
Pradeep Suryawanshi (A9) submitted that the appellant has been
falsely implicated in the present case and that he is incarcerated in
jail for more than 13 years. She submitted that it was a genuine
encounter, which has been painted as a fake encounter, with no
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material whatsoever to support the same. She submitted that in
fact, the evidence and documents on record would clearly show
that the encounter was a genuine encounter. She submitted that
the deceased-Ramnarayan @ Lakhanbhaiya was a member of the
Chhota Rajan gang and had several antecedents and was a wanted
accused in several cases registered against him. According to Ms.
th
Talekar, on 11 November 2006, at about 16:45 hrs, the
appellant received information that Ramnarayan @ Lakhanbhaiya
was going to meet his accomplices at Nana Nani Park, 7
Bungalow at Andheri (W), pursuant to which, he informed his
superiors at about 17:15 hrs i.e. to the ACP of the D.N. Nagar
Division-Arun Awate (PW63); DCP, Zone-IX-Vinaykumar Choube
(PW61) and Addl. C.P., West Region-Bipin Bihari (PW78). It is
the case of the appellant that his seniors ordered him to arrest
Ramnarayan @ Lakhanbhaiya, with the help of officers and
policemen of the Versova Police Station, pursuant to which, at
17:40 hrs, the appellant contacted PI Sonawane of the Versova
Police Station, for help and requested them to send officers to
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D.N. Nagar Police Station i.e. API Sartape (A11), PSI Harpude
(A17) and Police Naik Kokam (A19). She submitted that the said
officers of Versova Police Station reported to the appellant; that
about 18:20 hrs the appellant (A9) called his staff i.e. API
Sarvankar (A22), API Palande (A15) and PSI Patade (A18) to his
cabin. Accordingly, the appellant and the said three officers
collected their weapons and ammunition; and the appellant
briefed all the officers about the information so received. She
submitted that pursuant thereto, the squad reached the spot on
motorcycles and rickshaws at 19:10 hrs; that one squad stood at
the west side of the Nana Nani Park; and the other on the east
side of the Nana Nani Park; that thereafter, an auto-rickshaw
stopped near an electric pole and that Lakhanbhaiya got down
from the said rickshaw; that the secret informant signaled at the
appellant, that the passenger was the wanted accused-
Ramnarayan, pursuant to which, all were alerted about the
arrival of Ramnarayan. She submitted that thereafter, both the
groups moved forward to arrest Ramnarayan, however, on being
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alerted, he pulled out his firearm and pointed at the appellant;
that the appellant warned him not to fire as they were Police
officers and asked him to surrender; that despite being warned,
Ramnarayan fired a round in the direction of the appellant, which
the appellant evaded by ducking; thereafter, API Sarvankar (A22)
also is alleged to have warned Ramnarayan, however, despite the
same, he fired in the direction of API Sarvankar (A22). Ms.
Talekar submitted that in order to save themselves and the
civilians, the police fired five rounds at Ramnarayan i.e. the
appellant fired two rounds; and API Sarvankar (A22), API
Palande (A15) and API Sartape (A11) fired one round each. She
submitted that since Ramnarayan was seriously injured, the police
control room was informed of the same and a wireless van was
requested, to shift Ramnarayan to the hospital. She submitted that
the appellant directed API Sarvankar (A22) and API Sartape
(A11) to accompany Ramnarayan to Cooper hospital. She
submitted that on reaching the hospital i.e. the OPD of Cooper
Hospital at 20:57 hrs, Ramnarayan was declared dead by the
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casualty medical officer at 21:00 hrs Pursuant thereto, the
appellant lodged an FIR with the Versova Police Station, which
was registered vide C.R. No. 302/2006. Ms. Talekar submitted
that during the course of recording of the appellant’s statement
i.e. FIR, the appellant received the news, that Ramnarayan had
expired and as such, the same was incorporated in the FIR.
Thereafter, investigation was carried out by PI Mohandas Sankhe
th
(PW39) upto 15 November 2006.
15.1 In support of her submission that Ramnarayan Gupta
@ Lakhanbhaiya was a wanted criminal, learned counsel Ms.
Talekar relied on the antecedents that have come on record of
Ramnarayan. She submitted that Ramnarayan was a wanted
accused and since a secret information was received of his coming
to Nana Nani Park, it was decided to apprehend him at Nana
Nani Park, where he was to come to meet his accomplices. She
submitted that all the evidence and documents collected would
clearly show that it was a genuine encounter and not a fake
encounter, as alleged by the prosecution. Learned counsel relied
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on the evidence of Dattatray Sankhe (PW31) and Mohandas
Sankhe (PW39) to show that both the officers who investigated,
never thought that the encounter was not a genuine encounter.
Ms. Talekar relied on the order passed by the National Human
Rights Commission (‘NHRC’), New Delhi, on a complaint made
by Ramprasad Gupta (brother of Ramnarayan) to show that the
Commission had relied on an inquiry report of the SLAO and
Magistrate and the observation therein, that the encounter of
Ramnarayan was a genuine encounter and as such, the action of
the police was protected by law.
15.2 Ms. Talekar submitted that if the prosecution case as
suggested that Ramnarayan was done to death, prior to bringing
him to Nana Nani Park was true, blood would not have been
found on the spot. She submitted that not a single witness has
been examined by the prosecution to show that the deceased was
not alive, when he came to Nana Nani Park.
S.Q. Pathan / N.S. Chitnis 58/867
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15.3 Ms. Talekar, learned counsel for the appellant (A9)
further submitted that the fact that the encounter was a genuine
encounter has also been supported by the witnesses examined by
the prosecution i.e. by PW51–Anil More, PW63–Arun Awate,
PW31-Dattatray Sankhe, PW35-Kiran Sonone, PW83-Umesh
Revandkar (Exh.–633) and PW26-Anil Kadam. She submitted
that the evidence of the said witnesses fortifies the appellant's case
of a genuine encounter.
15.4 Ms. Talekar further submitted that the report of the
st
NHRC (Exh. 928-A) dated 1 April 2010 reveals that the
encounter was a genuine encounter. She, thus, submitted that the
documents and the evidence on record will show that the
encounter was a genuine encounter, inasmuch as, the same has
been corroborated by several documents i.e. spot panchnama,
station diary entries, log book of the police van, finding of
railway tickets on the deceased’s person. She submitted that the
blood group of the deceased was Group B and the blood found
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on the spot, was also Group B and as such, the same fortifies the
appellant’s case, that the encounter took place at the spot. She
further submitted that the evidence of some of the witnesses
would reveal that the deceased was alive, whilst being
shifted/carried from Nana Nani Park to Cooper Hospital and as
such, from the documents and evidence on record there was no
reason to doubt that the encounter was not a genuine encounter.
15.5 Ms. Talekar submitted that no sanction under Section
197 Cr.PC was taken, inasmuch as, the appellant, a police officer
was on duty at the time of the incident and that the weapon used
in the alleged crime was a service revolver. Learned counsel
relied on C.R. No.302/2006, registered at the instance of the
appellant (A9) with the Versova Police Station stating therein,
that the deceased had attempted to fire at the police, who were
discharging their official duty, pursuant to which the deceased
was shot. In support of the said submission i.e. the appellant was
on official duty, and as there was a danger to the passersby,
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Ramnarayan was shot at, learned counsel relied on the Duty
Register (Exh. 208A), Entries regarding issuance of service
revolver to the appellant (Exhibits 216A and 221A); FIR
No.302/2006 (Exhibits 278 and 281); entries in the Station
Diary of the Versova Police Station (Exhibits 282A, 285A, 287A,
297A, 301A, 617A); and, the Muddemal Register (Exhibits –
298A, 299A, 300A). Learned counsel, with respect to the said
entries, also relied on the evidence of the witnesses i.e. PW20–
Sanjivan Shinge, PW22–Vishnu Khatal and PW23–Shavaka Tadvi.
She submitted that considering that the appellant was on official
duty and the incident had taken place in exercise of their right to
private defence, sanction under Section 197 of Cr.PC was
essential.
15.6 As far as motive is concerned, learned counsel for the
appellant submitted that the prosecution had failed to establish
motive for the appellant to commit the murder of Ramnarayan.
She submitted that the witnesses examined on the point of motive
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i.e. PW57–Girish Nepali and PW108-Vinayak Ghorpade have
not named the appellant nor have thrown any light vis-a-vis
motive. She submitted that infact, the witnesses who could have
spelt out the motive i.e. Urmish Udhani, Anandibai Deshmukh,
have not been examined by the prosecution, for reasons best
known to them.
15.7 As far as abduction of the deceased and Anil Bheda,
are concerned, learned counsel for the appellant submitted that
there are no eye-witnesses vis-a-vis abduction nor is there any
circumstantial evidence adduced by the prosecution to show that
the appellant was in anyway involved in the abduction of the
deceased and Anil. She submitted that the prosecution examined
PW1–Ramprasad Gupta, PW3- Shyamsunder Gupta PW38-
Dheeraj Mehta, PW40–Aruna Anil Bheda and PW57-Shankar @
Girish Dalsingh to prove abduction, however, none of the said
witnesses have attributed any role to the appellant, much less,
named him. She submitted that a perusal of the evidence of the
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said witnesses will reveal contradictions in their version and as
such, it is evident that the prosecution had failed to prove
abduction of the deceased and Anil Bheda.
15.8 As far as the incident of firing on the deceased at
Nana Nani Park is concerned, learned counsel for the appellant
submitted that the prosecution had failed to adduce any
evidence/material to indicate that the deceased was killed at some
other place i.e. before being taken to Nana Nani Park. She
further submitted that there is no material to indicate the
presence of the appellant at any place other than Nana Nani Park
at the relevant time. She submitted that the CDR of the
appellant shows his presence at the Nana Nani Park and as such
supports the case of a genuine encounter.
15.9 She further submitted that the evidence on record, to
the contrary, supports the defence case of a genuine encounter.
Learned counsel also relied on the evidence of DW1–Manohar
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Kulpe, examined by the appellant. According to the learned
counsel for the appellant, the prosecution had failed to
substantiate its case i.e. of throwing the body of the deceased near
Nana Nani Park, so as to stage the encounter.
15.10 She further submitted that the SIT constituted
pursuant to the order of this Court, had deliberately not
examined the material witnesses, which could have shown that
the encounter was a genuine encounter.
15.11 As far as the alleged confinement of Anil Bheda is
concerned, learned counsel for the appellant submitted that the
prosecution has failed to produce any evidence that Anil Bheda
was 'confined' or restrained. In this connection, learned counsel
relied on the evidence of 4 witnesses examined by the prosecution
i.e. PW32–Sumant Bhosale, PW43–Madan More, PW45-Naresh
Chalke, PW55-Milind More. She submitted that the evidence of
the said witnesses does not reveal that Anil Bheda was wrongfully
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confined. She further submitted that there are serious
flaws/contradictions in the evidence of the said witnesses inter se.
15.12 According to Ms. Talekar, there are several flaws in
the prosecution case and that a few circumstances here and there,
would not connect the appellant with the alleged offences. She
submitted that the witnesses examined by the prosecution were
either pressurized or were called upon to submit a report in
favour of the prosecution. She further submitted that there are no
records/entries in any diary made by the investigating officers of
SIT, whilst investigating the case, casting a doubt on the
credibility of the investigation.
15.13 Learned counsel for the appellant further submitted
that although lie detector test was conducted pursuant to an order
passed by this Court, on PW1 – Ramprasad Gupta, PW2- Ganesh
R Iyer, Anil Bheda, Aruna Bheda at the FSL, Kalina, the said
test reports were not produced by the SIT, despite the test results
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being inconclusive.
15.14 Learned counsel for the appellant further submitted
that the important witnesses have not been examined by the
prosecution i.e. Rambabu Lodh (an eye-witness with respect to
firing on the deceased at Nana Nani Park); Nilesh (eye witness to
abduction), Shekhar Sharma, Vinayak Raundal (photographer
who clicked photographs of the spot of encounter at Nana Nani
Park), the News Reporter of Aaj Tak, who telecasted the coverage
of news of the encounter, Urmish Udhani (builder), Anandibai
and Janaya Seth for motive, Ramrajpal Singh (eye-witness), and
Subhash (informer).
15.15 As far as ballistic experts’ report is concerned, Ms.
Talekar submitted that the said report does not inspire
confidence, inasmuch as, the ballistic expert i.e. PW86 – Gautam
Ghadge has given two contradictory ballistic reports. She further
submitted that the hand wash of the deceased was taken but no
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controlled samples were taken to show that the encounter was
not a genuine encounter.
15.16 As far as CDRs are concerned, Ms. Talekar submitted
that the requisite certificate under Section 65B of the Evidence
Act was not produced and as such in the absence of the said
certificate, the oral evidence was inadmissible. She submitted that
even otherwise, the CDRs does not show that the appellant (A9)
was present at the time of abduction, other than at Nana Nani
Park.
15.17 Ms. Talekar relied on several judgments of the Apex
Court to show that an act done in the exercise of right of private
defence was protected; that motive was a necessity in a case of
circumstantial evidence, and that the same was not proved by the
prosecution; that certificates under Section 65B of the Evidence
Act, despite being mandatory, were not produced; certain
incriminating questions under 313 Cr.PC were not put; and, that
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prior sanction under Section 197 Cr.PC was not taken. She also
questioned the evidence of the expert witness and the evidentiary
value of the Expert’s evidence.
F. Submissions of Mr. Pendse, learned counsel for appellant-
Nitin Sartape (A11) in Criminal Appeal No.
707/2019:
16 Mr. Pendse, learned counsel for the appellant – Nitin
Sartape (A11) submitted that the prosecution has neither proved
the presence of the appellant at the spot when the encounter took
place nor has proved that it was the appellant who fired at the
deceased, though alleged by the prosecution. He submitted that
the appellant was at the police station at the relevant time and
had gone to the spot, post the incident of firing, to Nana Nani
Park. In support of the said submission, learned counsel for the
appellant relied on the evidence of PW17–Hanumant Girappa
Kambli from whom the weapon was taken and the evidence of
PW19–Jyotiram Phasale with whom the weapon was deposited
S.Q. Pathan / N.S. Chitnis 68/867
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after the incident. According to Mr. Pendse, the entries made in
the register by the appellant, of having taken the weapon and
deposited, post the incident and relied upon by the prosecution,
have been concocted and that the appellant disputes the signature
made against the said entry i.e. Exh. 197. He submitted that the
prosecution has not brought on record any contemporaneous
record to show that PW17–Hanumant and PW19–Jyotiram were
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on duty on the said day i.e. on 11 November 2006 and were in-
charge of the disbursement of the arms / depositing of the arms.
16.1 Mr. Pendse, further submitted that the timings
mentioned in the said entries appear to have been inserted
subsequently. According to the learned counsel for the appellant,
the evidence of PW26–Anil Kadam, the driver of Mobile Van-1
attached to Versova Police Station, will reveal that on receiving a
wireless message at 20:18 hrs, he reached the Nana Nani Park at
20:28 hrs and thereafter left for Cooper Hospital alongwith the
appellant (A11) and Arvind Arjun Sarvankar (A22) and reached
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Cooper Hospital at about 20:57 hrs. He submitted that if the
said timings were taken into consideration, it would be evident
that the entry made in the Arms Register with respect to
depositing of the arm / fire weapon by the appellant at 22:00 hrs,
appears to be doubtful and as such the said entry cannot be relied
upon.
16.2 Mr. Pendse further submitted that even the evidence
of PW60–Maruti Patil, who was attached to the Magazine Section
at Naigaon Armory Depot, would reveal that there is an
overwriting on one of the pages and in addition, at Exh. 497. He
submitted that the entry made by Maruti Patil is relevant,
considering his evidence that if the ammunition is less, the
weapon is not allowed to be deposited. He submitted that what
was deposited were 30 bullets and that the said number 30 has
been scored off and in its place 29 was written. He further
submitted that therefore, the procedure adopted by PW60–
Maruti for taking weapon/ammunition, is consistent with the
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appellant's case that he had not been to Nana Nani Park at the
time of the incident and as such had not fired at the deceased. He,
therefore, submitted that the prosecution had failed to prove that
the appellant (A11) fired at the deceased. He further submitted
that even the ballistic report does not support the prosecution
case, inasmuch as, the report shows that the bullet which was
found at the spot allegedly fired from the appellant's revolver, did
not match his revolver but matched with the revolver used by
Tanaji Desai (A2).
16.3 As far as abduction of the deceased and Anil Bheda
and confinement of Anil Bheda, are concerned, he submitted that
there are no allegations vis-a-vis the appellant. According to Mr.
Pendse, the station diary entry of D.N. Nagar Police Station,
relied upon by the prosecution, would have only corroborative
value and in the absence of any substantive evidence being led,
reliance cannot be placed on the said station diary entry.
S.Q. Pathan / N.S. Chitnis 71/867
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G. Submissions of Mr. Girish Kulkarni, learned Senior
Counsel, for the appellant-Ganesh Ankush Harpude
(A17) in Criminal Appeal No. 1490/2018:
17 Mr. Girish Kulkarni, learned senior counsel for the
appellant–Ganesh Harpude (A17) submitted that the appellant
was admittedly not present at the time of abduction nor are there
any allegations of wrongful confinement of Anil Bheda, qua the
appellant. He submitted that the evidence on record would only
show that the appellant was seen at the spot, post the incident
that took place at Nana Nani Park. In support of the same,
learned senior counsel relied on the evidence of PW26–Anil
Kadam, who was attached to Versova Police Station and was
working on Mobile Wireless Van No.1 at the relevant time; the
evidence of PW51-Anil More, Police Constable attached to
Versova Police Station; the evidence of PW77–Mahendra Tatkare,
attached to Versova Police Station and who was on Mobile-II of
Versova Police Station, at the relevant time; the evidence of
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PW81–Pramod Shreedhar Sawant, Wireless Operator to “Peter
Mobile” attached to Versova Police Station; and the evidence of
PW83–Umesh Yashwant Revandkar, Head Constable attached to
the Detection Branch. He submitted that the evidence of the said
witnesses will show that the appellant (A17) was seen at the spot,
post the incident alongwith PW39- PI Mohandas Narayan
Sankhe and other officers. He submitted that the witnesses have
stated that the appellant was collecting the soil mixed with blood
from the spot, at the relevant time and that he had asked PW51–
Anil More to collect the blood sample and cartridge which was
lying at the spot. He submitted that except the appellant being
present, there is no material to show that the appellant was part
of the team that had gone from D.N. Nagar Police Station
alongwith A9-Pradeep Suryawanshi, pursuant to the secret
information received by A9, that a member of the Chhota Rajan
Gang was going to come to the spot to meet his accomplice.
17.1 Mr. Kulkarni submitted that prior to the date of the
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incident, the appellant was on leave for about 2 to 5 days. In
support of the same, learned senior counsel relied on the Station
Diary Entry i.e. Exh.–720A (page 5495). Mr. Kulkarni submitted
that according to the charge, the appellant is only alleged to have
abetted the commission of the offence of Section 302 of the IPC,
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when infact, the 15 charge is only qua accused Nos.1, 2, 9 and
15, for the offence punishable under Section 302 r/w 34 of the
IPC.
17.2 Mr. Kulkarni further submitted that if the CDR of the
appellant would have been collected by the prosecution, the
same would have revealed that the appellant was present at the
beat, at a nearby area and the same could have been considered as
a contemporaneous document and would have then disproved the
prosecution case, that the appellant was at Nana Nani Park. He
submitted that even the evidence of PW108- Vinay Baburao
Ghorpade would show that the appellant had not carried any
weapon with him. Learned counsel relied on the admission of
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PW110-K.M.M. Prasanna in para 360 of his evidence, that the
appellant (A17) had not carried any weapon with him and that
the said admission was made after perusing the weapon register
and entries therein. Learned counsel submitted that as per charge
15, which is qua accused Nos.1, 2, 9 and 15, OA1-Pradeep
Sharma has been acquitted from the same and as such the
prosecution case, then becomes suspect. Learned counsel relied
on the judgment of the Apex Court in the case of Aghnoo
3
Nagesia v/s State of Bihar that a confession made by accused is
not admissible qua co-accused i.e. alleged confession by A9 in the
FIR i.e. C.R. No.302/2006, that it was a genuine encounter.
H. Submissions of Mr. Nagraj Shinde, learned counsel for the
appellant-Sandip Hemraj Sardar (A20) in Criminal Appeal
No. 86/2021:
18 Mr. Nagraj Shinde, learned counsel for the appellant–
3 AIR 1966 SC 119
S.Q. Pathan / N.S. Chitnis 75/867
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Sandip Hemraj Sardar (A20), a police constable attached to D.N.
Nagar Police Station at the relevant time, submitted that the
prosecution has not proved its case against the appellant. He
submitted that the evidence of PW20–Sanjivan Bhimrao Shinge,
In-charge Head Constable attached to D.N. Nagar Police Station,
reveals that it was his (PW20) duty to maintain duty register and
that the appellant was assigned with the duty of passport
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verification on 11 November 2006. He submitted that the same
is corroborated by duty register entry, which is at Exh. 208A. Mr.
Shinde further submitted that the evidence of PW87-Ajendrasingh
Thakur, Senior P.I., attached to D.N. Nagar Police Station, would
show that the station diary entries at Exhibits 669 and 670,
would reveal the persons (accused), who had gone for the
operation and of their return from the said spot i.e. Nana Nani
Park. He submitted that the name of the appellant is absent in
both the entries. He submitted that apart from the FIR registered
at the behest of A9–Pradeep Pandurang Suryawanshi @ Nana i.e.
C.R. No.302/2006, there is no material to connect the appellant
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with the alleged crime, inasmuch as, there is no corresponding
entry as stated above in Exhibits 669 and 670. He submitted that
apart from the aforesaid, there is no other role attributed to the
appellant to show that he was present at the spot i.e. Nana Nani
Park, at the time of the alleged murder and as such, the appellant
cannot be convicted on the basis of the said evidence.
I. Submissions of Mr. Ashwin Thool, learned counsel for the
appellant - Anand Balaji Patade (A18) in Criminal Appeal
No. 1239/2019:
19 Mr. Thool, learned counsel for the appellant –
Anand Balaji Patade (A18) submitted that the prosecution has not
adduced any evidence to show that the appellant had either kept
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a watch on the deceased on 10 November 2006; or that he was
involved in the abduction of the deceased-Ramnarayan and Anil
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Bheda from Vashi on 11 November 2006; or that the appellant
was present at Bhandup, where allegedly the deceased and Anil
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Bheda were taken at around 13:14 hrs; or at D.N.Nagar Police
Station, where allegedly the deceased and Anil Bheda were
brought at around 14:00/14:30 hrs; or that the appellant was
attached to Pradeep Sharma's squad; or that the appellant was in
anyway concerned with the confinement of Anil Bheda, post the
alleged murder of Ramnarayan.
19.1 Mr. Thool, does not dispute the entries made in the
register to show that the appellant had collected one pistol and 6
bullets from the D.N. Nagar Police Station and its return i.e. the
weapon alongwith 6 bullets. He, however, states that the
appellant had not used either the firearm or the bullets. He
further submitted that although the record shows that the
appellant was part of the team of A9-Pradeep Suryawanshi, the
appellant was not present at the time of the alleged incident and
had come subsequently i.e. post the incident at Nana Nani Park.
He submitted that at the highest, the appellant can be convicted
for destruction of evidence but not for conspiracy. Mr. Thool,
S.Q. Pathan / N.S. Chitnis 78/867
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does not dispute the entries made in the duty register, which is
deposed to by PW20-Sanjivan Bhimrao Shinge i.e. Exh.-208A
and Exh. 209A; nor does he dispute the evidence of PW22-
Vishnu Baburao Khatal, District Hawaldar who was working in
the Arms and Ammunition Division of D.N. Nagar Police Station,
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with respect to having taken the arms and ammunition on 11
November 2006 at 18:00 hrs; nor does he dispute the evidence of
PW23-Shavaka Saibu Tadvi, also working as a District Hawaldar,
Arms and Ammunition, with D.N. Nagar Police Station, with
respect to the arms and ammunition being returned by the
appellant. According to Mr. Thool, the appellant was not
involved in either the conspiracy as alleged by the prosecution or
in the murder of Ramnarayan. He submitted that the appellant
was only at the wrong place at the wrong time.
19.2 Mr. Thool, further submitted that the evidence of
PW2 – Ganesh R Iyer and PW62-Rakeshchandra Prajapati,
Nodal Officers of BPL Mobile would show that the mobile
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number i.e XXXXXX2362 belonged to Mangesh Sawant and
that the prosecution had failed to bring any evidence on record to
show that the appellant was using the said number. He therefore
submitted that the CDR brought on record by the prosecution to
show that the appellant was in touch with the other accused
cannot be relied upon, since the number belonged to Mangesh
Sawant.
19.3 Mr. Thool, submitted that there was no blood found
on the head of the deceased and only the bullet injury on the
stomach was a fresh injury. In support thereon, the learned
counsel relied on the spot panchnama, to show that there was
only one pool of blood i.e. pool of blood measuring only 1 foot.
He submitted that there should have been atleast 2 pools, one
from the head and another from the bullets sprayed on the
deceased. Hence, he submitted that since there was no blood flow
from the head wound, the same would indicate that the said
wound was caused atleast an hour or more, prior to the actual
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incident. He submitted that the possibility of the incident having
taken place prior, has not been investigated by the prosecution
rd
nor has the prosecution investigated whether any 3 person had
shot the deceased, and the accused only to take the credit, had
shown that the deceased was fired by them in an encounter. He
submitted that therefore, in the absence of evidence, either direct
or circumstantial, the appellant cannot be convicted for the
offence of conspiracy to cause the death of the deceased.
J. Submissions of Mr. Sushil Gaglani, learned counsel for the
appellant-Tanaji Bhausaheb Desai (OA2) in Criminal Appeal
No. 104/2021:
20 Mr. Gaglani, learned counsel for the appellant –
Tanaji Bhausaheb Desai (A2) submitted that there are no eye-
witnesses to the alleged abduction of the deceased-Ramnarayan
and Anil Bheda; their wrongful confinement, and thereafter, in
the alleged murder of Ramnarayan at Nana Nani Park. He
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submitted that it is alleged by the prosecution; (i) That the
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appellant was keeping a watch on Anil Bheda on 10 November
2006, at his residence i.e. Sector 29, Vashi, Navi Mumbai; (ii) that
the appellant was present at the Bhandup Complex from where
the deceased and Anil Bheda were made to sit in different vehicles
and then taken to D.N. Nagar Police Station; (iii) that the
appellant was a part of the raiding party at Nana Nani Park; and
(iv) that the appellant had also allegedly confined Anil Bheda at
th
Bhatwadi on 12 November 2006. As far as the appellant keeping
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a watch on Anil Bheda on 10 November 2006 is concerned,
learned counsel for the appellant submitted that there is no
witness with respect to the same. He submitted that it is alleged
by the prosecution that the appellant was keeping a watch on Anil
Bheda's house, as the deceased was staying there, however, the
evidence of PW40–Aruna Bheda, is to the contrary i.e. it shows
that the deceased was not residing with them and that for the first
th
time, she saw the deceased on 11 November 2006. He
submitted that having regard to the same, the question of the
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appellant keeping a watch on Anil Bheda's house does not arise.
20.1 Mr. Gaglani, further submitted that the appellant is
alleged to have been using mobile No. XXXXXX1323 (BPL
Mobile), however, the prosecution has not produced Section 65B
Certificate as mandated and hence, the evidence of PW62-
Rakeshchandra Prajapati cannot be relied upon. He submitted
that even otherwise, if the CDR is stated to be incriminating,
there are no proper questions put to the appellant under Section
313 Cr.PC. In this connection, learned counsel pointed out to the
question i.e. question No.318, to show that a composite question
was asked and not a specific question. He submitted that hence,
the prosecution has failed to prove that the appellant was keeping
a watch on the whereabouts of the deceased and as such on Anil
Bheda's house.
20.2 As far as the second allegation made by the
prosecution is concerned, i.e. that the appellant was present at
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Bhandup Complex, after the deceased and Anil Bheda were
abducted, the prosecution has not adduced any evidence that the
deceased and Anil Bheda were brought to Bhandup Complex, nor
has it been brought on record that the deceased and Anil Bheda
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were together on 11 November 2006 and that they travelled to
Bhandup Complex and from there to D.N. Nagar Police Station
and thereafter, the deceased was taken to Nana Nani Park. He
submitted that the prosecution has not brought on record any
evidence, with respect to what happened or transpired at
Bhandup and has only relied on CDRs, which by itself is not
sufficient.
20.3 Mr. Gaglani, learned counsel for the appellant further
submitted that there is a discrepancy between the location of
Trisha Collection and also with respect to the existence of Trisha
Collection. He submitted that the e-mail sent by SIT to PW62–
Rakeshchandra Prajapati, shows that the location of the appellant
at Sector 9-A, Vashi was sought, whereas, Trisha Collection is in
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Sector 9. He submitted that Sector 9 and Sector 9-A are different
areas and that the same has been categorically deposed to, by
PW38-Dheeraj Ugamraj Mehta. He submitted that the CDR was
sought of Sector 9-A and not of Sector 9, from where the
abduction took place. According to the learned counsel, Trisha
Collection does not exist and that the prosecution has not
adduced any evidence in support thereof i.e. the owner of Trisha
Collection - Dilip Jain, has not been examined, to show the
existence of the said premises. Learned counsel relied on the
admission of PW110 – K.M.M. Prasanna, in his evidence to show
that the SIT had not collected any document to show the
existence of Trisha Collection and where Trisha Collection was
situated, thus making the prosecution case of abduction, doubtful.
He submitted that it has come in the evidence of PW110 -
K.M.M.Prasanna that the spot was shown by PW1 i.e. the
complainant and not by Anil Bheda, and that Anil Bheda was
reluctant to show the place. He submitted that although it is
alleged by the prosecution that efforts were made to trace Nilesh,
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however, no document was produced in support thereof.
20.4 As far as wrongful confinement is concerned, it is the
prosecution case that after the deceased was killed, Anil Bheda
was confined at 3 places i.e. Bhatwadi, Ghatkopar, Mumbai; at a
hotel in Kolhapur; and at Mid-Town Hotel, Andheri, Mumbai.
He submitted that as far as the appellant is concerned, it is the
prosecution case that the appellant had gone to Bhatwadi and had
wrongfully confined Anil Bheda. He submitted that the evidence
of PW40-Aruna Bheda, who has identified the appellant as being
one of the persons who confined her and Anil Bheda at Bhatwadi
is concerned, her evidence cannot be relied upon, inasmuch as,
she had not made the said disclosure before the SLAO and the
learned Metropolitan Magistrate and had infact, not disclosed the
same to anyone prior to her statement being recorded by SIT on
3rd September 2009. He submitted that PW32-Sumant
Ramchandra Bhosale and PW55-Milind Subhash More, examined
by the prosecution to show that the appellant was guarding the
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house at Bhatwadi where Anil Bheda was living with his wife’s
family cannot be relied upon, inasmuch as, there are no station
diary entries made by the said witnesses, who are police officers,
of having gone to Bhatwadi, Ghatkopar to guard the house at
night and of their return back to the police station. He submitted
that thus, the evidence, at the highest, would show that the
appellant (A2), a police constable was only acting on the orders of
his superior–Pradeep Suryawanshi (A9) and had accompanied
PW32-Sumant and PW55-Milind i.e. for guarding the house of
Anil Bheda at Bhatwadi. Thus, according to the learned counsel,
the prosecution had failed to show that the appellant was
guarding Anil Bheda's house and as such had wrongfully confined
him.
20.5 As far as killing of deceased at Nana Nani Park is
concerned, Mr. Gaglani submitted that one empty bullet was
found on the spot at Nana Nani park, however, there is a
discrepancy in the description of the empty as mentioned in the
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spot panchnama; the letter sent to FSL, and the CA report and as
such the ballistic expert's report cannot be relied upon to show
that the bullet was fired from the appellant's pistol. He submitted
that the evidence on record would show that infact, the appellant
had taken one pistol and 30 rounds from the Magazine Section at
Naigaon Armory Depot and had also returned one pistol and 30
rounds and as such there was not a single bullet which was
missing. In this connection, learned counsel relied on the
evidence of PW80–Pravin Baliram Bhosale and PW60–Maruti Y.
Patil. He submitted that although the prosecution has relied on
PW80–Pravin Bhosale and PW60–Maruti Patil, to show that the
appellant fired at the deceased, the documents on record would
show that there is tampering of the records i.e. manufacturing
year was subsequently incorporated in the documents. He thus
submitted that considering the evidence on record, the opinion
given by the Ballistic Expert (PW86–Gautam Ghadge), that the
empty was fired from the appellant's weapon, cannot be accepted.
He further submitted that the appellant had no motive to cause
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the death of the deceased.
20.6 It is pertinent to note, that although the learned
counsel for the appellant does not deny the FIR lodged by A9; the
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encounter which took place on 11 November 2006 at Nana
Nani Park; and his presence at the spot at the time of the
encounter, his only submission is that he did not fire at the
deceased, as alleged by the prosecution.
K. Submissions of Mr. Prakash Shetty, learned counsel for the
appellant-Devidas Gangaram Hari Sakpal (A13) in Criminal
Appeal No. 117/2019:
21 Mr. Prakash Shetty, learned counsel for the appellant
–Devidas Gangaram Hari Sakpal (A13) submitted that the
prosecution has not proved the complicity of the appellant in the
alleged crime. He submitted that the appellant was attached as a
Police Constable to the D.N. Nagar Police Station, at the relevant
time and was working under the OA1–Pradeep Sharma and A9–
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Pradeep Suryawanshi. He submitted that although the appellant
has been named by A9–Pradeep Suryawanshi in the FIR, as being
part of the team that did the encounter of the deceased, the
appellant came to the spot subsequently, and was not present at
the time when the encounter took place. In support of the said
submission, learned counsel relied on the timings mentioned in
the FIR (Exh.–278) and the proforma to show that the incident
had taken place between 20:11 hrs to 20:13 hrs and that the
police had received information at 20:50 hrs. He submitted that
PW26-Anil Mahadev Kadam, who was on Wireless Mobile Van
on the said day, in his evidence, has stated that he received the
th
message on 11 November 2006 at 20:18 hrs and that he reached
Nana Nani Park at 20:28 hrs and saw the injured at the spot and
that he also saw two policemen i.e. Nitin Sartape (A11) and
Arvind Arjun Sarvankar (A22) at the spot. He submitted that the
appellant was not seen at the spot and if the CDRs of the
appellant are seen, it is evident that the appellant was not present
at the timings mentioned in the FIR at the spot and was infact, at
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JW Marriott, at the relevant time. Learned counsel relied on the
evidence and the documents produced by PW62 - Rakeshchandra
Prajapati, Nodal Officer of Loop Mobile. He submitted that the
mobile number of the appellant was XXXXXX7293. He
submitted that CDR records will falsify the prosecution case, that
the appellant was present at the spot as mentioned in the FIR i.e.
between 20:11 hrs to 20:13 hrs when the encounter took place.
He submitted that the CDR will show that the appellant was at
Nana Nani park only at 20:34 hrs i.e. post the incident. He
further submitted that although the appellant has been named in
the FIR, the station diary entry i.e. Exh.–669 and return station
diary entry i.e. Exh.–670, do not bear the appellant's name as
being part of the raiding party. He submitted that the appellant is
being prosecuted only because he was attached to OA1–Pradeep
Sharma and A9–Pradeep Suryawanshi, without there being any
material to support the appellant's presence at the spot, at the
relevant time.
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21.1 As far as confinement of Anil Bheda is concerned, he
submitted that the only allegation as against the appellant is that
after a few days of the encounter, the appellant had visited
Midtown Hotel and was guarding the room in which Anil Bheda
was staying. He submitted that the witnesses examined by the
prosecution i.e. PW45-Naresh Phalke and PW55-Milind More,
cannot be believed, inasmuch as, both the said witnesses have
categorically stated that they had not made any entry in the
station diary of having gone to Mid-Town Hotel or of their return
from the said hotel. He submitted that both the said witnesses
although had guarded the hotel where Anil Bheda was staying,
only the appellant has been made an accused.
L. Submissions of Mr. Manish Mazgaonkar, learned counsel
for Prakash Ganpat Kadam (A16) in Criminal Appeal No.
1493/2018:
22 Mr. Manish Mazgaonkar, learned counsel for the
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appellant submitted that the appellant at the relevant time, was a
Head Constable attached to the D.N. Nagar Police Station. He
submitted that there is no evidence, either direct or
circumstantial, to connect the appellant with the alleged offences.
He submitted that though charge was framed under Section 149
of the IPC, the appellant has not been convicted for the same
with other co-accused. He submitted that the only reason for
roping the appellant in the present case, is the disclosure of the
appellant’s name in the FIR lodged by the A9-Pradeep
Suryawanshi @ Nana i.e. in C.R. No. 302/2006, registered with
the Versova Police Station and the averments made in the
petitions before this Court and the Apex Court with respect to
the said FIR i.e. C.R. No. 302/2006. He submitted that since the
case as set out by the accused that it was a genuine encounter was
rejected by the trial Court, no reliance could have been placed on
the said FIR, in which the appellant has been named. He
submitted that Pradeep Sharma (OA1) was acquitted and as such
the appellant also be acquitted.
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22.1 Mr. Mazgaonkar further submitted that the
prosecution had failed to collect the CDRs of the appellant, as
collected of the other accused and as such adverse inference be
drawn against the prosecution, since no CDR has been produced
to show that the appellant was present at the spot, as alleged. He
submitted that the Thane Ammaldar has not been examined by
the prosecution, who was responsible for making the station diary
entries as per Police Manual in respect of the movement of the
appellant from Versova Police Station to D.N. Nagar Police
Station and from D.N. Nagar Police Station to Nana Nani Park.
He further submitted that none of the police officers, who were
examined by the prosecution, have produced their personal
diaries with respect to how the matter was investigated, inasmuch
as, maintaining police diary was compulsory for the police
officers. He submitted that in the event, the presence of the
appellant is proved at the spot, it can only be inferred that the
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appellant was present at the spot, pursuant to the orders of his
seniors and as such had acted in discharge of his official duty and
thus, sanction to prosecute under Section 197 Cr.PC was
necessary. He submitted that even the answers given to the
questions put to the appellant under Section 313 Cr.PC have
been ignored by the trial Court.
22.2 Mr. Mazgaonkar, learned counsel for the appellant
submitted that the appellant was a Police Naik attached to the
Versova Police Station at the relevant time. He submitted that the
evidence of PW51-Anil More wherein he has stated that ASI
Devkate told them that he himself and Police Naik-Kokam (A19)
will do the duty of patrolling in the police station area, is hearsay
and as such cannot be relied upon. He further relied on the
admission which has come in the evidence of PW110 - K.M.M.
Prasanna, as to whether the appellant and two others were sent
from Versova Police Station to D.N. Nagar Police Station as
additional help. He submitted that like the appellant (Prakash
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Ganpat Kadam) in Criminal Appeal No.1493/2018, the material
as against the appellant relied upon by the prosecution, is finding
of his name in the FIR, i.e. the FIR lodged by A9-Pradeep
Suryawanshi (C.R. No.302/2006) and filing of petitions before
this Court as well as the Apex Court, relying on the FIR. He
submitted that there is no other evidence to show that the
appellant was involved in the abduction/confinement of Anil
Bheda and in the encounter of Ramnarayan. He submitted that in
the alternative, if it is proved that the appellant was at the spot, it
was only pursuant to the orders of his seniors and as such it can
only be inferred that the appellant had acted in the discharge of
his official duty.
M. Submissions of Dilip Sitaram Palande (A15), appellant
who appears in-person in Criminal Appeal No.
1242/2018:
23 We heard Mr. Dilip Palande, the appellant who
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appears in-person, through video-conferencing as well as when he
th
was produced before us pursuant to our order dated 14
September 2023, as he was not audible. Mr. Palande submitted
that there is no evidence to connect him with the alleged offence
and that the evidence so collected is manufactured at the behest
of the complainant i.e. PW1-Ramprasad Vishwanath Gupta. He
th
submitted that the encounter which took place on 11 November
2006 was a genuine encounter and that it had taken place as set
out in the FIR lodged by A9–Pradeep Suryawanshi (C.R.
No.302/2006 (Exh. - 121)). According to Mr. Palande, the
evidence on record would show that deceased - Ramnarayan had
several antecedents and that the complainant (brother of the
deceased) had suppressed the deceased’s antecedents from this
Court at the time of the filing of his petition before this Court.
23.1 In this connection, Mr. Palande relied on the evidence
of PW1-Ramnarayan Gupta and PW3-Shyamsunder V Gupta
with respect to the antecedents of the deceased, who was the
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brother of PW1-Ramnarayan and PW3-Shyamsunder Gupta. He
submitted that the deceased was a wanted criminal and was
associated with the Chhota Rajan Gang and that on receipt of the
information, it was decided to go to the spot and apprehend him,
however, as the deceased refused to surrender and retaliated, the
police were constrained to shoot him. He submitted that the
evidence on record would show that the deceased was absconding
and wanted in many cases and as such the police on receipt of the
information decided to apprehend him.
23.2 Mr. Palande submitted that PW1-Ramnarayan Gupta
was close to the deceased as admitted by him and hence PW1 -
Ramnarayan Gupta had lodged a false complaint against the
police, to take revenge of his brother’s death.
23.3 Mr. Palande further submitted that PW38-Dheeraj
Mehta, is not an eye-witness to the alleged abduction of the
deceased and Anil Bheda by the police. He submitted that Nilesh,
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an alleged eye-witness to the abduction was not examined by the
prosecution for reasons best known. He pointed out the
discrepancies in the evidence of PW38-Dheeraj Mehta, PW57-
Shankar @ Girish Dalsingh, PW1-Ramnarayan Gupta and
PW40-Aruna Anil Bheda. He submitted that the evidence of
PW57–Shankar @ Girish would show that PW38-Dheeraj Mehta
had called him and informed that some ‘Gavwale’ had picked up
the deceased and Anil Bheda and accordingly he had informed
the same to PW1-Ramnarayan Gupta. He further submitted that
PW1-Ramnarayan Gupta in the petition filed by him in this Court
had not stated that he was informed by Shankar @ Girish
(PW57).
23.4 Mr. Palande further submitted that in the alleged
letters/fax/communications made to various authorities by PW1-
Ramnarayan Gupta, there is no date, time and place to show from
where the deceased and Anil Bheda were picked up from. Mr.
Palande when questioned by us, does not dispute the
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faxes/telegrams being sent, however, he submits that the contents
therein are vague. He further submitted that the prosecution had
failed to collect the data with respect to an alleged call made
between PW1-Ramnarayan Gupta and PW38-Dheeraj Ugamraj
th
Mehta on 11 November 2006 nor had collected the CDR
records of another mobile (Airtel) belonging to PW3-
Shyamsunder Gupta.
23.5 Mr. Palande submitted that PW38-Dheeraj Mehta in
th
his first statement recorded on 27 August 2009 and in his 161
th
statement recorded on 4 September 2009 had denied any
knowledge of abduction or of informing about the same to any
authority. He submitted that in view of the said two statements,
st
the statement recorded of PW38–Dheeraj Mehta on 1 February
2010, after 5 months by SIT, wherein, he disclosed about
abduction of the deceased and Anil Bheda, becomes suspicious.
He submitted that the prosecution has not even collected any
material to show what was the motive for the police to either
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abduct the deceased or to kill him, inasmuch as, the prosecution
has not examined or recorded the statement of Anandibai
Deshmukh, on account of whose property there was a dispute
between the deceased and A14-Janardan Tukaram Bhanage (now
expired). He submitted that no documents were even collected
by SIT to prove that there was any dispute with respect to the
property as alleged. He submitted that in the absence of motive,
the prosecution case would fall, since the prosecution case rests
on circumstantial evidence. He further submitted that it is not the
prosecution case that the appellant was involved in the abduction,
nor is there any evidence of abduction by him. He submitted that
the encounter was a genuine encounter and the same is evident
from the fact that two railway tickets were found on the person
of the deceased, when the inquest panchnama was drawn.
23.6 Mr. Palande further submitted that SIT has not
proved that there was a shop `Trisha Collection’ and that Nilesh
and PW38-Dheeraj Mehta were doing business from the said
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shop. He submitted that in this connection, the owner of Trisha
Collection, Mr. Dilip Jain has not been examined by the
prosecution, that there were only 3 shops, i.e. Trisha, Vaishnavi
th
Cosmetics and Trisha Collection and that there was no 4 shop.
He submitted that it is the complainant i.e. PW1 - Ramnarayan
Gupta who showed Trisha Collection to the officers of SIT and
that Anil Bheda, who was allegedly abducted from there, had
not shown the said shop.
23.7 Mr. Palande relied on the NHRC Report (Exh. – 146)
to show that it was a genuine encounter. According to Mr.
Palande, the conduct of the witnesses examined by the
prosecution would belie the prosecution case i.e. PW1 -
Ramnarayan Gupta was sending telegrams in the name of Aruna
Anil Bheda (PW40), though Aruna Bheda had not granted
permission to do so. He submitted that there was no plausible
reason that has come on record to show why PW1 -
Ramnarayan Gupta did not sent the telegrams / faxes in his name.
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He submitted that the evidence of PW40–Aruna Bheda as well
as her conduct vis-a-vis abduction and wrongful confinement is
doubtful and as such appears to be an after-thought. He
submitted that PW40 – Aruna Bheda had changed her statements
before several authorities and as such implicit reliance cannot be
placed on her evidence. He submitted that only later-on SIT
pressurizing Anil Bheda and Aruna Bheda and PW38-Dheeraj
Ugamraj Mehta that their statements came to be recorded. He
submitted that SIT has fabricated the statements of witnesses and
the documents. He submitted that the statements of Anil Bheda
and Aruna Bheda could not have been recorded by PW110-
K.M.M. Prasanna on 3rd September 2009, since that day, was a
day of Anant Chaturdashi and PW110-K.M.M. Prasanna, being
the DCP of Zone IX could not have spent 2 to 3 hours at Powai
for recording their statements. He, therefore, submitted that no
statement of Jayesh Kanji Kesariya, Anil Bheda and Aruna Bheda,
as alleged by the prosecution were recorded by PW110-K.M.M.
rd
Prasanna on 3 September 2009. He submitted that even
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otherwise there are discrepancies in their statements. He
submitted that even the 164 statements of Anil Bheda were
th th
recorded on 30 December 2009 and that of Aruna Bheda on 5
January 2010, belatedly, after more than 4 to 5 months, of
recording of their 161 statements.
23.8 Mr. Palande further submitted that even the statement
of PW50 - Jayesh Kanji Kesariya was recorded belatedly.
23.9 Mr. Palande submitted that faxes/telegrams were sent
by PW1–Ramprasad Gupta, in the name of Aruna Bheda without
any justification and as such the explanation offered by PW1–
Ramprasad Gupta, that he felt shy of sending the same in his
name, cannot be accepted.
23.10 Mr. Palande further submitted that despite receiving
information of abduction of Anil Bheda, PW40-Aruna Bheda
lodged a missing complaint i.e. her husband-Anil Bheda was
missing, and not an FIR of abduction. He submitted that if really
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Anil Bheda and Ramnarayan, as disclosed by PW38-Dheeraj
Mehta and PW1–Ramprasad Gupta were abducted, there was no
reason for PW40-Aruna Bheda not to lodge a complaint of
abduction with the police. He further submitted that if really
Anil Bheda and Ramnarayan were abducted, PW40 - Aruna
Bheda as well as PW38-Dheeraj Mehta would have sprung into
action, since PW40 - Aruna Bheda was the wife of Anil Bheda and
PW38 - Dheeraj Mehta, a friend of Anil Bheda. According to Mr.
Palande, PW1 –Ramprasad Gupta sent false faxes and telegram
messages in the name of PW40 - Aruna Bheda, only with the
intent to create evidence, when infact, there was nothing to show
that Anil Bheda and Ramnarayan, were abducted.
23.11 Mr. Palande further submitted that Nilesh has not
been examined by the prosecution and that there are a lot of
infirmities with respect to the existence of Nilesh and that the
possibility of Nilesh being a fictitious person cannot be ruled out,
having regard to the evidence that has come on record. He
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submitted that even SIT took no efforts to trace Nilesh, who
allegedly saw the abduction. According to Mr. Palande, there
are also several discrepancies in the Cell ID and the tower
locations vis-a-vis, the tower locations where Anil Bheda stayed
and Trisha Collection, where the incident of abduction allegedly
took place.
23.12 Mr. Palande also relied on the progress report to
show that the investigation was carried out not according to
what was disclosed by Aruna and Anil Bheda but according to
PW1–Ramprasad Gupta (complainant) i.e. brother of the
deceased. He submitted that it is evident from the record, that
the statement of PW38-Dheeraj Ugamraj Mehta was recorded on
th
4 September 2009 only after Anil Bheda and Aruna Bheda’s
rd
statements were recorded by SIT on 3 September 2009. He
submitted that the statements of PW38-Dheeraj Ugamraj Mehta
(made to SIT, recorded under Section 161 and 164 Cr.PC.), do
not inspire confidence having regard to his earlier statements.
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23.13 Mr. Palande further submitted that since the
encounter which took place was an act committed in the course
of their official duty, it was incumbent for the prosecution to seek
sanction under Section 197. Mr. Palande relied on the following
judgments in support of his submissions:
4
Smt. Vandana Vikas Waghmare v. State of Maharashtra & Ors. ;
5
Vidhya Singh v. State of Madhya Pradesh ; Sankaran Moitra v.
6
Sadhna Das & Anr. ; Om Prakash & Ors. v. State of Jharkhand
7
through the Secretary, Department of Home, Ranchi & Anr. ; P.
K. Pradhan v. State of Sikkim, Represented by Central Bureau of
8 9
Investigation ; Matajog Dobey v. H. C. Bhari ; Darshan Singh v.
10
State of Punjab & Anr. ; and Raj Kumar Singh alias Raju alias
11
Batya v. State of Rajasthan .
4 1998 CRI. L. J. 4295
5 (1971) 3 SCC 244
6 (2006) 4 SCC 584
7 (2012) 12 SCC 72
8 (2001) 6 SCC 704
9 1955 SCC OnLine SC 44
10 (2010) 2 SCC 333
11 (2013) 5 SCC 722
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23.14 Mr. Palande also relied on the circular issued by the
nd
Government of Maharashtra dated 22 December 2006.
23.15 According to Mr. Palande, the evidence on record, in
particular, the evidence of PW107–Manoj Laxman Chalke,
PW31-Dattatray Ganpat Sankhe, PW39-Mohandas Narayan
Sankhe, PW35–Kiran Tukaram Sonone, PW63–Arun Vasantrao
Awate and PW61–Vinaykumar Keshavprasad Chaube, would
show that the said officers did not doubt the genuineness of the
encounter. He submitted that even the report of the NHRC
would show that the encounter was a genuine encounter.
23.16 Mr. Palande submitted that the ballistic expert i.e.
PW86 - Gautam Natha Ghadge had given his report at the
instance of SIT and that the evidence that has come on record, to
suggest that the firing was done at a short distance, does not
inspire confidence. He submitted that the investigation carried
out by the SIT was biased and false. According to Mr. Palande,
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the prosecution had failed to examine the material witnesses i.e.
Lefty (informer), Dilip Jain (owner of Trisha Collection), Mr.
Ashok Shah (owner of Qualis Vehicle), and Mr. Vijay Jadhav
(panch to the inquest panchnama); the photographer who took
photographs of the spot; and the person who drew the map, and
as such, adverse inference ought to be drawn, for non-
examination of these witnesses.
23.17 Mr. Palande submitted that the circumstances relied
upon, have not been proved by the prosecution beyond
reasonable doubt nor have certain incriminating questions been
put to him under Section 313 Cr.PC i.e. on CDRs. He submitted
that even the CDRs cannot be relied upon, for want of Section
65B Certificate and several discrepancies therein.
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N. Submissions of Mr. Waqar Pathan, learned counsel for the
appellant-Ratnakar Gautam Kamble @ Rattu (A3) in
Criminal Appeal No.1038/2013:
24 Mr. Waqar Pathan, learned counsel for the appellant
submitted that the appellant does not dispute the fact, that he
was part of the team (Group–2), when the encounter took place
th
on 11 November 2006. Learned counsel submitted that the
encounter was a genuine encounter and was not a fake or staged
encounter, as alleged. He submitted that admittedly, the
appellant is not alleged to have fired at the deceased or even
carried any weapon to the spot.
24.1 Mr. Pathan further submitted that admittedly the
appellant was not present at the time of the alleged abduction,
even according to the prosecution. He submitted that it is the
prosecution case, that the appellant alongwith others had
wrongfully confined Anil Bheda at Bhatwadi, Ghatkopar and at
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Mid-town Hotel, Andheri. He submitted that the appellant has
denied the allegation of wrongful confinement. He submitted
that there is no documentary evidence except the oral testimony
to suggest that the appellant ever visited either Bhatwadi or Mid-
Town Hotel i.e. there are no corresponding station diary entries
of the same.
24.2 Mr. Pathan submitted that with respect to wrongful
confinement of Anil Bheda, the prosecution examined three
witnesses i.e. PW43-Madan Tanaji More, PW45-Naresh Namdeo
Phalke and PW55-Milind Subhash More, however, the evidence
of all the three witnesses, is contrary to each other and as such
does not inspire confidence and hence cannot be relied upon.
According to Mr. Pathan, the prosecution has failed to prove that
the appellant was a member of the squad of Pradeep Sharma
(OA1) or infact, that a squad of Pradeep Sharma existed. He
submitted that the appellant was on deputation from Juhu Police
Station (July 2006) to D.N. Nagar Police Station and that the
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appellant was working for D.N. Nagar Police Station and not for
Pradeep Sharma, as alleged by the prosecution. He submitted
that since the encounter was a genuine encounter, the prosecution
had failed to obtain sanction as mandated by law under Section
197 Cr.PC, since the act committed by them was in the course of
their official duty.
24.3 Learned counsel also assailed the CDR relied upon by
the prosecution. He submitted that in the absence of Section 65B
Certificate, the evidence with respect to the same, cannot be
relied upon.
III. Submissions of Mr. Rajiv Chavan, learned Special Public
Prosecutor (Spl.PP) for the Respondent-State in all Appeals
preferred by the Appellants/Accused:
25 Mr. Chavan, learned Spl.PP appearing for the
respondent-State of Maharashtra, submits that the prosecution
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case rests entirely on circumstantial evidence and that the
prosecution has proved all the circumstances relied upon by them,
by leading cogent, legal and admissible evidence. He submitted
that whilst appreciating the evidence, the Court would have to
bear in mind the fact that the investigation in the case started
after three years, in 2009, of an incident which had taken place in
2006, only after the High Court directed registration of an FIR,
and hence, by then, crucial witnesses were missing. He
submitted that infact, during the pendency of the case, just before
the prime and star witness of the case-Anil Bheda could be
examined, he was done to death. He submitted that the prime
witness-Anil Bheda was a witness to the abduction of Ramnarayan
and himself; of being taken to Bhandup Complex; and then in
separate cars by the police to D.N. Nagar Police Station; and
thereafter, his own confinement, post the encounter of
Ramnarayan (deceased).
25.1 According to Mr. Chavan, the case in question, is,
S.Q. Pathan / N.S. Chitnis 113/867
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not just one of abduction, confinement and cold blooded murder,
but a grave case in which, officers of the law enforcement agency,
custodians of law and order, had conspired, created and
fabricated false records to substantiate their claim, that
Ramnarayan died in a genuine encounter. He submitted that it is
a case in which pressure tactics were used so that no witness
would come forward to give any statement/depose. He submitted
that the case involves not only police personnel/ officers but even
some civilians, who were members of the squad led by Pradeep
Sharma (OA1). He submitted that all of them conspired to kill
Ramnarayan for an ulterior motive and made the encounter look
like a genuine encounter. He submitted that the telegrams/faxes
sent by PW1- Ramprasad Gupta to various authorities would
show that Ramnarayan and Anil Bheda were abducted and that
there was a likelihood of Ramnarayan being killed in an
encounter. He submitted that the prosecution has proved
through the evidence of witnesses, the telegrams/faxes sent by the
complainant (PW1-Ramprasad Gupta) to various authorities.
S.Q. Pathan / N.S. Chitnis 114/867
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25.2 Mr. Chavan further submitted that pursuant to the
order passed by the High Court, magisterial inquiry was
conducted under Section 176(1-A) of Cr.P.C and that the report
of the Magistrate clearly revealed that the police officers had
abducted the deceased, taken him to some unknown place, killed
him by firing bullets at him, and then showed that the encounter
had taken place at the Nana Nani Park. Mr. Chavan further
submitted that pursuant to the High Court order, SIT was
constituted and C.R. No. 246/2009 came to be registered with
the Versova Police Station. He submitted that the accused being
police officers, exerted immense pressure and gave threats to the
witnesses during the course of investigation, in order to ensure
that they do not give any statement against them and that the
evidence of the witnesses examined in connection with the same,
is a testimony of the same.
25.3 With respect to the murder of Ramnarayan, Mr.
S.Q. Pathan / N.S. Chitnis 115/867
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Chavan submitted that false documents were created by the
accused, to cover up the fake encounter and cold-blooded murder
th
of the deceased. He submitted that the incident of 11
November 2006 was meticulously planned and executed to
perfection and that the police had grossly misused their power
and position to fabricate and even destroy evidence and to
pressurize and intimidate crucial witnesses. He, therefore,
submitted that the prosecution case will have to be appreciated,
keeping in mind that there is a gap of three years in commencing
with the investigation with respect to abduction, fake encounter,
and of confinement, coupled with the pressure tactics and fear
psychosis exerted by the accused on witnesses to dither them
from coming forward to give evidence. He submitted that the
th
charges in the said case came to be framed on 8 March 2011 and
Anil Bheda was summoned to depose in the said case on 16
March 2011, and that prior to recording of his evidence, Anil
Bheda, a star witness, was abducted and murdered in a gruesome
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manner on 13 March 2011 i.e. his body was found charred to
S.Q. Pathan / N.S. Chitnis 116/867
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death.
25.4 Mr. Chavan submitted that there is a chain of events
brought on record by the prosecution i.e. right from keeping a
th
vigil on the house of Anil Bheda on 10 November 2006 and
th
again on 11 November 2006; abduction of Ramnarayan and
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Anil Bheda on 11 November 2006 from Sector 9A, Vashi;
bringing them to Bhandup Complex from there; taking the two,
to D.N. Nagar Police Station, in separate vehicles; and thereafter,
taking Ramnarayan to Nana Nani Park, Andheri, Mumbai, and
showing that he was killed in a genuine encounter, and thereafter,
confining Anil Bheda for a month, so that, he would not spill the
beans. He submitted that the same cannot be said to be a mere
co-incidence but is a part of a larger conspiracy executed by the
officers by meticulous planning.
25.5 Mr. Chavan submitted that C.R. No. 302/2006 was
registered at the behest of A9, only to cover up the encounter.
S.Q. Pathan / N.S. Chitnis 117/867
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He submitted that the document on record will show that before
the registration of the FIR, ADR was registered i.e. ADR 55/2006
with the Versova Police Station. He submitted that on the basis of
the ADR, the body was forwarded to J.J. Hospital for post-
mortem examination. He submitted that the FIR registered i.e.
C.R. No. 302/2006 has been accepted and relied upon by A2, A3,
A9 and A15, as being genuine, in support of their defence i.e. that
it was a genuine encounter. He submitted that although there
were ten cases registered against the deceased, the said cases were
prior to 2000 and that, none of these cases were registered in the
entire West Region, Mumbai, which includes D.N. Nagar Police
Station and Versova Police Station. He submitted that although
A9-Pradeep Suryawanshi has stated in his FIR that he had
informed his superiors and that the superiors had deputed three
officers from Versova Police Station to D.N. Nagar Police Station
to carry out the secret operation, the evidence on record, is to the
contrary. Mr. Chavan relied on the evidence of PW63-Arun
Awate, the ACP of the area, to show that he was not aware of the
S.Q. Pathan / N.S. Chitnis 118/867
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encounter or that any officer was going to nab an accused; the
evidence of PW61-Vinaykumar Chaube, DCP, Zone-IX, to show
that he was not aware of any operation; and the evidence of
PW78-Bipin Bihari, Additional Commissioner of Police (`Addl.
CP’), West Region, that he had not given any directions or
instructions as alleged by Pradeep Suryawanshi (A9). He
submitted that it is thus evident, that none of the three superior
officers had any information, nor had given any instructions as
alleged by A9. He submitted that infact, no suggestions have
been made to any of the said three witnesses suggesting to the
contrary i.e. that they were aware or that they had given
permission to nab the deceased, prior to the incident. He
submitted that even the entry in the Station Diary i.e. Exh. 897, is
significant. He submitted that the said entry has been denied by
PW39-PI Sankhe, which entry shows that the officers had left for
D.N. Nagar Police Station on a secret mission. He submitted that
no attempt was made to cross-examine PW78-Bipin Bihari, vis-a-
vis the said entry. According to Mr. Chavan, the said entry is a
S.Q. Pathan / N.S. Chitnis 119/867
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false entry, made with the sole intent to build a story of a secret
operation to be conducted. He submitted that although Pradeep
Suryawanshi (A9) had claimed in his FIR, that a meeting was held
in his cabin at 18:20 hrs, pursuant to the secret information
received, the same is not supported by the CDRs of Pradeep
Suryawanshi @ Nana (A9), Dilip Palande (A15) and Ganesh
Harpude (A17). He submitted that infact, Ganesh Harpude (A17)
has denied being present at the D.N. Nagar Police Station, at the
relevant time.
25.6 He further submitted that there are two more false
station diary entries; (i) the first entry at the Versova Police
Station which shows that API Sartape (A11), PSI Harpude (A17)
and PC No. 26645 proceeded to the D.N. Nagar Police Station
for confidential work at 18:05 hrs and (ii) the second entry,
which shows that PI Suryawanshi (A9), API Palande (A15), API
Sarvankar (A22), PSI Patade (A18), API Sartape (A11), PSI
Harpude (A17), PC No. 26645 and the informer proceeded to
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Nana Nani Park at 18:55 hrs. He submitted that the CDRs do
not show that the accused were together, however, the entry is to
the contrary. The author of the said entries is Dilip Palande
(A15). He submitted that the said entries have been brought on
record by PW87-Ajendrasingh Thakur. Mr. Chavan further
submitted that the evidence of PW87-Ajendrasingh Thakur, Sr.PI
attached to D.N. Nagar Police Station, shows that he too was kept
in the dark with respect to the alleged secret operation.
25.7 As far as the spot panchnama of the place where the
alleged encounter took place, is concerned, Mr. Chavan
submitted that according to the accused, the same started at
23:00 hrs and was over at 1:35 hrs. Mr. Chavan submitted that
the spot panchnama alleged to have been prepared at the spot,
was infact a fabricated document. In support of the said
submission, Mr. Chavan relied on the evidence of PW81- Pramod
Sawant, who was attached as a Wireless Operator to Peter Mobile
of Versova Police Station; PW51-Anil More, who was attached to
S.Q. Pathan / N.S. Chitnis 121/867
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Versova Police Station as a police constable; PW77-Mahendra
Tatkare, who was on duty of the mobile–II of Versova Police
Station; who was present at the spot and had collected the articles
from the spot. PW83-Umesh Revandkar, who was attached to the
Detection Branch, Versova Police Station; and the evidence of
PW73-Vilas Kandalgaonkar, Police Constable attached to Versova
Police Station. He submitted that the evidence of PW51-Anil
More is consistent with respect to the presence of PW39-
Mohandas Sankhe, at the spot, when they reached the spot,
between 20:30 hrs and 21:00 hrs i.e. the time when Pradeep
Suryawanshi @ Nana (A9) is alleged to have lodged an FIR,
which FIR was recorded by PW39-Mohandas Sankhe between
20:50 hrs to 21:50 hrs. He submitted that the evidence of
PW81-Pramod Sawant, PW51-Anil More, PW77-Mahendra
Tatkare and PW83-Umesh Revandkar, would show that when
they went to the spot, soon after the incident, collection of
articles was in progress and that PI Sankhe was at the spot. He
further submitted that at around 21:45 hrs, PW77-Mahendra
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Tatkare was present when blood, revolver, soil were collected in
plastic bags. He further submitted that the statement of PW73-
Vilas Kandalgaonkar, Police Constable attached to Versova Police
Station, would show that when he returned at 23:00 hrs from
some other duty, PW39-Mohandas Sankhe called him and asked
him to do, as per the orders of the officers of the Detection
Branch. He submitted that the evidence of PW73-Vilas
Kandalgaonkar, would show that pursuant thereto, he recorded
the spot panchnama at the police station itself, without going to
the spot, at the behest of the officers.
25.8 He submitted that the timings as disclosed by
aforestated witnesses, will show that the spot panchnama was not
done at the spot, as alleged by Pradeep Suryawanshi (A9), nor was
the FIR registered at the time as stated by A9 and that at 22:45
th
hrs on 11 November 2006, Mr. Chavan submitted that the fact,
that nobody was present at the spot, is also fortified by the
evidence of PW1-Ramprasad Gupta and PW2-Ganesh Iyer which
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is further corroborated by the evidence of other witnesses.
25.9 Mr. Chavan submitted that the fact that the encounter
was a fake encounter and not a genuine encounter is also fortified
by the following circumstances :
(i) The finger print expert’s report.
(ii) The report of the ballistic expert i.e. of PW86-
Gautam Ghadge, which shows inconclusive results in the absence
of control samples, taken of the deceased (both hands).
He submitted that the finger print expert’s report as
well as the ballistic expert’s report would clearly show, that a
revolver was planted by the police on the deceased.
(iii) The spot panchnama allegedly prepared at the spot, is
contrary to the evidence on record, in particular, the evidence of
PW73-Vilas Kandalgaonkar.
(iv) That the evidence on record shows that what was
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collected from the spot was collected in plastic bags, but what was
forwarded to the FSL was in bottles and as such, the
appellants/accused manipulated the record.
(v) That even railway tickets were planted by the accused
to show that the deceased was not in their custody at the relevant
time. In this context, Mr. Chavan, learned Special P.P. relied on
the evidence of PW11-Dr. Sunil Shinde, who was working as a
CMO at the Cooper Hospital; on Exh.-174 i.e. the MLC Register
(Exh.-174), in which there is no mention of tickets (Exh.-285);
and similarly, the Station Diary entry in which there is no
mention of railway tickets being found. He further submitted
that even PW39-Mohandas Sankhe has not spoken about finding
of railway tickets.
25.10 As far the evidence of DW1–Manohar P. Kulpe
is concerned, Mr. Chavan submitted that no reliance could be
placed on his evidence having regard to the contradictions that
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have come in his cross-examination on material aspects, when
confronted by the learned Public Prosecutor.
25.11 Mr. Chavan relied on the ballistic report, map
annexed to the additional affidavit filed by A9–Pradeep
Suryawanshi and admitted by A9 and the spot panchnama to
show that the encounter was a fake encounter and not a genuine
one, as alleged by the defence. He submitted that the evidence of
PW86-Gautam Ghadge and the ballistic report would show that
the hand wash taken from the deceased was inconclusive and as
such the same would belie the theory of the accused that the
deceased had attempted to shoot at them. He further submitted
that the spot panchnama relied upon by the accused and allegedly
prepared by PW39-Mohandas Sankhe would show the distances
between the places where the members of the encounter team
were standing and from where they shot at the deceased. He
submitted that the distance from where the police shot at the
deceased was about 40 feet and across the road, whereas, the
S.Q. Pathan / N.S. Chitnis 126/867
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ballistic expert’s report and the evidence of PW86 – Gautam
Ghadge would show that the firing was done from a distance of
about 2 meters. Mr. Chavan also pointed out the distances from
the map annexed by A9–Pradeep Suryawanshi to the additional
affidavit filed by him in the Writ Petition i.e. Writ Petition No.
th
2473/2006, filed by PW1 on 15 November, 2006, to show that
firing from the said spots as alleged by A9 was impossible.
25.12 Learned Spl.PP relied on the medical
jurisprudence and literature relied upon by PW86-Gautam
Ghadge with respect to firearm shots. According to Mr. Chavan,
taking into consideration the evidence on record, the deceased
could not have been shot from a distance of about 40 feet as
alleged by A9 and some other accused.
25.13 As far as formation and existence of squad is
concerned, Mr. Chavan submitted that the evidence on record
would clearly show that an illegal squad was formed, of which
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Pradeep Sharma (OA1) was the head. He submitted that there is
overwhelming evidence of witnesses to show the formation of
such a squad under Pradeep Sharma (OA1) and that some of the
accused were sent on deputation to work as members of the said
squad. He submitted that although it is alleged that the said
squad was formed by the Addl.CP (West Region), for obvious
reasons, PW78–Bipin Bihari, Addl. CP, has denied the existence of
any special squad or of even having transferred any officers to
the D.N. Nagar Police Station, to work under the said squad. He
submitted that PW78–Bipin Bihari has denied the existence of a
squad since it was not legal to form a squad. He submitted that
although PW78–Bipin Bihari has denied about the existence of a
squad/formation of a squad/deputing members to assist Pradeep
Sharma the head of the squad, there is overwhelming evidence of
other witnesses who state to the contrary. He submitted that the
witnesses who have spoken about the existence of a squad are
PW87–Ajendrasingh Thakur, Senior P.I. attached to D.N. Nagar
Police Station; PW25-Dhiraj Koli, attached to Juhu Police Station
S.Q. Pathan / N.S. Chitnis 128/867
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as PSI, PW72–Manohar Desai, PSI, attached to Versova Police
Station; PW79–Prataprao Baburao Kharate, SHO attached to
D.N. Nagar Police Station; PW82–Samir Faniband, Probationary
Officer, Road Entry, in particular Entry at Exh.–626; PW63–
Arun Vasantrao Awate, ACP, D.N. Nagar Police Station and
PW20-Sanjivan Shinge, In-charge Head Constable at D.N.Nagar
Police Station. He submitted that all the said witnesses have
spoken about the existence of a squad at the behest of a Senior
Officer and that the squad was headed by Pradeep Sharma and
that some of the accused were deputed to work for the said
squad. He submitted that there is no cross-examination of some
witnesses or even suggestion made to some of the witnesses, with
respect to the said evidence, that has come on record, vis-a-vis
existence of a squad under OA1. Mr. Chavan also relied on the
documents/station diary entries/duty register deposed to by the
aforesaid witnesses, with respect to the deputation of some of the
officers, to work as members of the said squad.
S.Q. Pathan / N.S. Chitnis 129/867
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25.14 Mr. Chavan, in support of the formation of the
squad also relied on the evidence of PW32–Sumant Bhosale,
Police Naik, D.N. Nagar Police Station (Detection Branch);
PW43–Madan More; and PW45–Naresh Phalke, Police Constable
attached to D.N. Nagar Police Station and PW55–Milind Subhash
More and PW110-K.M.M.Prasanna. He submitted that none of
these witnesses have been cross-examined with respect to the
formation of the squad and the fact, that A2, A3, A7, A15 and
A16 were deputed as members of the squad and as such, the
prosecution has duly proved the existence of a squad under OA1.
25.15 As far as CDRs are concerned, Mr. Chavan
submitted that the prosecution has duly proved the CDR records
and all documents produced in support thereof. He submitted
that the evidence on record would show that when the documents
were exhibited, no objection was raised by the defence for taking
the said documents on record, in the absence of Section 65B
Certificate. He submitted that the documents having being
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marked as exhibits, without 65B Certificate can be relied upon.
In support of his submission, Mr. Chavan relied on the evidence
of PW54–Changdeo Godse, Nodal Officer, Vodafone to show
that the documents produced by this witness have been duly
proved and that no objection was taken by any of the defence
counsel for exhibiting of the said documents, in the absence of
Section 65B Certificate. He submitted that the officer has duly
stated in his evidence that he had issued the documents in
question and has admitted to the seal and the signatures thereon.
25.16 Mr. Chavan submitted that the prosecution has
proved the CDR/SDR/Cell ID documents/information as sought
for, through the Nodal Officers. Learned Spl.PP relied on the
evidence of PW54–Changdeo Godse, Nodal Officer, Vodafone
India Limited; PW97–Vikas Phulkar, Nodal Officer, Vodafone
India Limited; PW62-Rakeshchandra Prajapati, Nodal Officer,
Loop Mobile India Limited, PW65-Yogesh Rajapurkar, Nodal
Officer, Bharati Airtel, PW69–Mr. Shekhar Palande, Nodal
S.Q. Pathan / N.S. Chitnis 131/867
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Officer, Tata Tele Services Maharashtra Limited, PW85–Divakar
Rao, Nodal Officer, Reliance Communication Limited; and
PW89-Rajesh Gaikwad, Nodal Officer, Reliance Communication
Limited. He submitted that a perusal of the evidence of the said
witnesses would show that no objection was raised for exhibiting
the documents placed on record by the said Nodal Officers. He
submitted that since no objection was taken by the accused, that
the said documents could not be exhibited, for want of Section
65B Certificate, they are precluded from raising any objection
now. Thus, Mr. Chavan submitted that the CDRs and all the
documents have been duly proved by the prosecution through the
said Nodal Officers and as such can be relied upon, having being
exhibited. He further submitted that with respect to only one
document i.e. Exh.–459, PW54–Changdeo Godse has clarified
that the Cell ID location of the said document was incorrect and
that subsequently, the correct Cell ID was submitted i.e. Exh.–
464 and as such, the said ambiguity also stood corrected.
S.Q. Pathan / N.S. Chitnis 132/867
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25.17 Mr. Chavan submitted that all the
information/documents sought for by the Investigating Officer in
the form of CDR/SDR have been exhibited, and that at no stage,
when the CDR/all other documents were exhibited, any objection
was raised by the accused. Mr. Chavan has tendered the details
of the calls made by the accused, their locations to show that the
accused were present at the spot when the alleged incident took
place i.e. at the time of abduction, wrongful confinement and
thereafter, the place where the encounter took place. Mr. Chavan
submitted that the prosecution has also duly proved through the
Nodal Officers that the appellants/accused were infact using the
mobile numbers as alleged by the prosecution.
25.18 To prove the circumstance of `Abduction’, Mr.
Chavan, learned Spl.PP relied on the evidence of six witnesses, in
support of the same i.e. PW38-Dheeraj Mehta; PW57-Shankar @
Girish Dalsingh @ Nepali; PW1-Ramprasad Gupta; PW2-Ganesh
Iyer; PW40-Aruna Bheda and PW3-Shyamsunder Gupta. He
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submitted that the abduction of the deceased and Anil Bheda is
deposed to by the aforesaid witnesses and that there is
corroboration to the said evidence in the form of documents i.e.
faxes and telegrams and CDRs.
25.19 Mr. Chavan submitted that the evidence of
PW38-Dheeraj Mehta would show that he was informed of the
abduction by Nilesh at 12:40 hrs as soon as Ramnarayan and
Bheda were abducted. He submitted that although all the learned
counsel for the appellants submitted that the evidence of PW38-
Dheeraj Mehta would not be admissible with respect to what was
disclosed by Nilesh to him, being hearsay, the said submission is
not legally tenable and as such, misconceived. He submitted that
the evidence of Nilesh would be admissible under Section 6 of the
Evidence Act, under the principle of res gestae. He submitted
that the evidence of PW38-Dheeraj Mehta, would show that the
deceased and Anil Bheda reached his shop Trisha Collection at
Sector 9A, Vashi at about 12:15 hrs; that as there was no place to
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sit in his shop, PW38-Dheeraj Mehta stated that they could wait
outside; that at 12.40 hrs, Nilesh came to his shop and informed
him about the same i.e. that his friend (Anil Bheda) and friend’s
friend (Ramnarayan) were picked up by 5-6 persons in a Qualis
vehicle. Mr. Chavan submitted that the CDRs would show that
Ramnarayan had made his last call at 12:33 hrs which lasted for
two minutes i.e. till 12:35 hrs, after which, both, Anil Bheda and
Ramnarayan’s mobile phones were coming switched-off. He
submitted that the CDR also shows that calls were made by
Vinayak Shinde @ Veenu (A7) (who was at Sector 9A at the
relevant time) to Pradeep Sharma (OA1) (who was at D.N. Nagar
Police Station (mobile standing in the name of Hitesh Solanki @
Dhabbu (A5) and that at 12:39 hrs, a call was made by Shailendra
Pandey @ Pinky (A4) to Lefty (Informer).
25.20 Mr. Chavan submitted that the evidence of
PW38- Dheeraj Mehta would show that he was under pressure
and under duress of the relatives of the appellants-accused and
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that an advocate who used to appear for some of the appellants-
accused was also pressurizing him to give statements in a
particular way in the said case, pursuant to which, PW38- Dheeraj
Mehta gave his earlier statements i.e. prior to his statement dated
th th
27 August 2009 (161 statement) and statement dated 4
September 2009 (164 statement) recorded by the SIT and the
learned Magistrate, respectively. Mr. Chavan submitted that
therefore, non-examination of Nilesh will not have any bearing in
the peculiar facts of this case, inasmuch as, the said disclosure
made by Nilesh to PW38-Dheeraj Mehta would clearly fall within
the exception to the admissibility of hearsay evidence and as such
the said disclosure would be admissible in law and as such would
not be fatal to the prosecution. Learned Spl.PP relied on Section 6
of the Evidence Act, in particular, illustration (a) of the said
section, in support of his submission.
25.21 Mr. Chavan submitted that within a few
minutes, on learning of the abduction of Ramnarayan and Anil
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Bheda at 12:40 hrs, calls were exchanged between PW38-
Dheeraj Mehta and PW57-Shankar @ Girish Dalsingh @ Nepali
and PW3-Shyamsunder Gupta and PW1-Ramprasad Gupta. He
submitted that the evidence of the said witnesses i.e. PW38-
Dheeraj Mehta, PW57-Shankar @ Girish Dalsingh @ Nepali,
PW3-Shyamsunder Gupta, PW1-Ramprasad Gupta and PW40-
Aruna Bheda, corroborate each other with respect to the same
and that there is no reason to disbelieve the same.
25.22 Mr. Chavan submitted that the oral evidence of these
witnesses with respect to abduction, is duly supported by
documentary evidence i.e. by faxes/telegrams sent by Ramprasad
Gupta (PW1) and Ganesh Iyer (PW2) to various authorities. He
submitted that the evidence of PW1-Ramprasad Gupta is duly
corroborated by PW4-Shaligram Wankhade, Sub-Divisional
Engineer, working in Central Telegraph Office, Mumbai; PW41-
Wasudeo Channe, working in Customer Service Centre, BSNL,
Prabhadevi; PW42-Bhavka Bhangare, working as Telegraph
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Assistant at the Matunga Office; PW44-Arjun Satam, working as a
Telegraph Assistant at Dadar Telegraph Office; PW47-Santosh
Naik, working as a Writer in Main Control Room (who received
the telegram addressed to the CP, Mumbai); PW49-Ravindra
Kulkarni, Personal Assistant of the CP, at the relevant time; and
PW5-Rachana Vanjare, Clerk, working with the BSNL, with
respect to receipt of a telegram. Mr. Chavan relied on the
telegram reports placed on record by the said witness i.e. PW5-
Rachana Vanjare, received by her from the Dadar and Matunga
Telegraph Office (Exh. 131). Mr. Chavan also relied on the
evidence of PW46-Lakkaraju Narsimha, to show that although
the original charge book was destroyed in 2010, a corresponding
entry to that effect was made in the Station Diary. The said entry
in the charge book pertains to an entry i.e. Exh. 356 i.e. receipt
of a telegram by the main control room, addressed to the CP, on
th
11 November 2006.
25.23 As far as faxes sent by PW1-Ramprasad Gupta
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are concerned, Mr. Chavan submitted that the prosecution had
proved sending of two faxes i.e. one, to the CP, Navi Mumbai
th
and the other, to the CP, Thane, on 11 November 2006. Mr.
Chavan, to prove sending of the two faxes, relied on the evidence
of PW93-Sadashiv Borale, who was attached to C.B.D Control
Room and attached to the Office of the CP, Navi Mumbai, to
th
prove the receipt of fax on 11 November 2006 at 16:45 hrs; the
evidence of PW94-Sunil Somawanshi, who was attached to the
Control Room at Navi Mumbai, with respect to Station Diary
th
entries made by the said witness on 12 November 2006 i.e.
Exhibits 702 and 703; PW92-Dinkar Thakur was examined to
show that the original fax message book could not be produced
and for proving the affidavit filed by him (Exh. 694). He
submitted that although an attempt was made by PW1-
Ramprasad Gupta to send a fax to the CP, Mumbai, for want of
fax tone from the Office of the CP, the fax could not go through.
Mr. Chavan submitted that the evidence of the witnesses
examined to prove the same, would show that faxes and
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telegrams were sent and as such, there was no serious challenge to
the evidence of sending faxes and telegrams by PW1-Ramprasad
Gupta and PW2-Ganesh Iyer, to the authorities as stated
aforesaid. He submitted that the dispute only pertains to the
contents of the said faxes. He submitted that the faxes sent, were
clearly admissible under Section 80 of the Evidence Act and that
though originals were not available, the prosecution has proved
the said documents by leading secondary evidence.
25.24 Mr. Chavan submitted that the prosecution has thus
proved abduction of Ramnarayan and Anil Bheda by the accused,
by legal, cogent and admissible evidence. In support of the
submission, learned Spl.PP relied on the evidence of PW1-
Ramprasad Vishwanath Gupta, PW2-Ganesh R Iyer, PW3-
Shyamsunder Gupta, PW38-Dheeraj Mehta, PW40-Aruna Bheda
and PW57 - Shankar @ Girish Dalsingh. He submitted that the
evidence of the said witnesses is duly corroborated by prompt
sending of faxes/telegrams, letters and filing of writ petition as
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well as by the CDR records. He submitted that the evidence of
the said witnesses has not been shattered, despite a grueling and
lengthy cross-examination.
25.25 Mr. Chavan submitted that the evidence of
PW1- Ramprasad Vishwanath Gupta with respect to having called
his friend for securing fax numbers has been duly corroborated
by the said witness i.e. PW6-Mahesh Muley, from whom PW1-
Ramprasad Gupta had taken fax numbers and PW8-Amit
Jambotkar, to whom PW1-Ramprasad Gupta asked to make
inquiry at the Crime Branch office at Thane. He submitted that
the said evidence was also corroborated by the CDR of PW1-
Ramprasad Gupta, of having made calls to PW6-Mahesh Muley
and PW8-Amit Jambotkar. It is further submitted that PW1–
Ramprasad’s evidence has also been duly corroborated by PW40-
Aruna Bheda, on all material aspects, which are germane to the
decision of the said case.
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25.26 Mr. Chavan submitted that in order to prove
wrongful confinement of Anil Bheda, the prosecution has
examined PW40-Aruna Bheda, PW32-Sumant Bhosale, PW55–
Milind More, PW43–Madan More, PW45–Naresh Phalke,
PW37-Astatu Arya and PW52-Purba Bhattacharya. He submitted
that Anil Bheda had a mobile and that his CDR shows that he last
th
called from his mobile at 11.30 hrs on 11 November 2006,
from his residence. He submitted that thereafter Anil Bheda’s
mobile was never operational, which will show that Anil Bheda
was confined by the police. Mr. Chavan relied on the evidence of
PW40-Aruna Bheda, to show that her husband Anil Bheda was
th
brought to the police station on 12 November 2006 by the
th
police, after his abduction on 11 November 2006; that after
withdrawing the missing complaint lodged by PW40-Aruna
Bheda, when Anil Bheda and Aruna Bheda came out, Anil Bheda
disclosed to PW40-Aruna Bheda, how he and Ramnarayan were
abducted by OA1’s men and taken to D.N. Nagar Police Station,
within that short moment. He submitted that the evidence of
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PW40-Aruna Bheda, will also reveal that her husband-Anil Bheda
was wrongly confined by the police, in particular, by A2-Tanaji
Desai, A3-Ratnakar Kamble @ Rattu and A5-Hitesh Solanki @
th
Dhabbu. He submitted that after Anil Bheda surfaced on 12
November 2006 i.e. was brought by the police to the Vashi Police
Station, he, alongwith PW40-Aruna Anil Bheda, were taken to
their house by the police in a Qualis vehicle; and from there, they
were asked to pick up their clothes and were taken in the same
Qualis vehicle to Aruna Bheda’s father’s house at Bhatwadi,
th
Ghatkopar; that on 13 November 2006, Anil Bheda was taken
to D.N. Nagar Police Station and thereafter, on the insistence of
PW40 - Aruna Bheda, she and her son were permitted to
accompany Anil Bheda, who was taken to Kolhapur by A5-
Hitesh @ Dhabbu, where they were kept in a hotel. He further
submitted that the fact, that PW40–Aruna Bheda’s son was absent
th th
from school from 11 November 2003 to 11 December 2006 is
duly corroborated by PW52-Purba Bhattacharya, Primary School
Teacher, where, PW40–Aruna Bheda and Anil Bheda’s son were
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studying. The said witness has produced the original attendance
register and documents showing admission/absence and when
their son left school. He further submitted that the evidence of
PW40 – Aruna Bheda vis-a-vis wrongful confinement by A2-
Tanaji Desai, A3-Ratnakar Kamble @ Rattu and A5-Hitesh
Solanki @ Dhabbu is duly corroborated by their CDRs. He
submitted that the prosecution has examined PW37-Astatu Arya,
Divisional Engineer, Ghatkopar Telephone Exchange, MTNL, to
show that 2 PCO’s were standing in the name of PW40 - Aruna
Bheda’s father. He submitted that the CDRs would show that
calls were made from the said PCO by Aruna Bheda to speak to
Anil Bheda on the telephone numbers of A2 and A3. Mr. Chavan
relied on Exhibits 269, 549 and 407. He submitted that the
evidence on record will show that the phone used by A5
(XXXXXX5118) stood in the name of Shaikh Kaider. He
submitted that the evidence of PW40 – Aruna Bheda would show
that Anil Bheda was kept in confinement, right from the time of
th th
his abduction on 11 November 2006 till 12 December 2006,
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by the police initially, at Bhatwadi, then Kolhapur and then, at
Mid-town Hotel.
25.27 Mr. Chavan submitted that the aforesaid
evidence vis-a-vis confinement of Anil Bheda is further fortified
by the evidence of PW55-Milind More, PW43-Madan More and
PW45-Naresh Phalke.
25.28 Mr. Chavan submitted that the next set of
evidence pertains to pressure tactics/intimidation employed/ done
by the accused persons to cover up C.R. No.302/2006, i.e. the
fake encounter. In this connection, Mr. Chavan relied on the
th th
three orders passed by this Court dated 13 February 2008; 11
th
August 2008 and 13 August 2009. He submitted that it is also
pertinent to note that a Suo-Motu Contempt proceeding was
initiated as against A9–Pradeep Suryawanshi for interfering in
the administration of justice, pursuant to the report sent by the
learned Magistrate. Mr. Chavan submitted that this Court vide
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th
judgment dated 4 February 2011 held A9–Pradeep Suryawanshi
guilty and sentenced him to 3 months imprisonment. He
submitted that the said judgment was challenged by A9–Pradeep
Suryawanshi, by way of an SLP, however, the said SLP was
dismissed.
25.29 Mr. Chavan submitted that throughout the
proceeding before the Magistrate, High Court and even after the
SIT took over the investigation, the accused continued to exert
pressure on the witnesses to fall in line with the investigation of
C.R. No.302/2006. In support of his submission, Mr. Chavan
relied on the evidence of PW31-Dattatray Sankhe, P.I and
Investigating Officer in C.R. No.302/2006; evidence of PW35-
Kiran Sonone, Senior P.I attached to Oshiwara Police Station;
evidence of PW39-Mohandas Sankhe and the evidence of the
Investigating Officer i.e. PW107-Manoj Chalke, PW109-Sunil
Gaonkar, PW110-K.M.M. Prasanna and several others. He
submitted that the evidence that has come on record is also duly
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supported by the CDRs.
25.30 Mr. Chavan also relied on the evidence of
PW110-K.M.M. Prasanna to show why Anil Bheda was not
rd
called upon to show Trisha Collection prior to 3 September
2009; why PW40–Aruna Bheda was constrained to lodge a
missing complaint with respect to the disappearance of Anil
th
Bheda on 12 November 2006 and why Jayesh Kesariya had
deposed earlier, that he had accompanied Anil Bheda to Shirdi on
th
11 November 2006.
25.31 Mr. Chavan also relied on the affidavits filed by
A9 and the documents annexed thereto to show the manipulation
done by the police. He submitted that the statement of one of the
witnesses, was obtained after almost three years by A9, when
there was no occasion for him to do so and more so, when he
was not even investigating the case (C.R. No.302/2006).
25.32 Mr. Chavan relied on the post-mortem report
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and the evidence of PW29–Dr. Gajanan Chavan with respect to
the injuries sustained by the deceased. He submitted that the
evidence would show that the death of the deceased was
instantaneous. He submitted that there would have been more
blood oozing, if the person shot at, was alive as compared to a
dead person. He submitted that the evidence of PW29–Dr.
Gajanan Shejrao Chavan would show that there was rupture of
the atrium and as such, it is impossible that the pool of blood will
be as small i.e. 1 foot, as was found at the spot. Mr. Chavan
submitted that the same would belie the appellants/accused case,
that Ramnarayan was shot at the spot in an encounter.
25.33 Mr. Chavan also relied on the evidence of the
carrier in whose possession the articles were and who handed
over the same, in a sealed condition to the FSL i.e. evidence of
PW21–Kailas Ekilwale, PW53–Vishwajit Chavan and PW91-
Sudu Patade.
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25.34 As far as CDRs are concerned, he submitted
that the CDRs of the appellant/accused clearly corroborate the
prosecution case of abduction, of taking the deceased to
Bhandup, from there to D.N. Nagar Police Station and from there
to Nana Nani Park. Mr. Chavan has tendered a compilation of
the CDRs to show the calls made and the presence of the accused
at the spot, despite the said areas, being outside their
Commissionerate and despite there being no occasion for them to
go there i.e. to a different Commissionerate.
25.35 Mr. Chavan has submitted a detailed chart of
the CDRs exchanged between the accused inter se and the calls
made between the witnesses to corroborate the evidence adduced
by the prosecution. He submitted that the CDRs have been duly
proved by the prosecution through the concerned witnesses and
that the said CDRs corroborate the evidence that has come on
record i.e. with respect to abduction of the deceased and Anil
Bheda; taking them to Bhandup where they were put in two
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different vehicles, and thereafter, to D.N. Nagar Police Station;
thereafter, the deceased was taken to Nana Nani Park; and Anil
th
Bheda was taken to Vashi Police Station on 12 November 2006;
from there to Bhatwadi, Ghatkopar; from there to D.N. Nagar
Police Station; then to Shirdi; and thereafter, from Shirdi back to
Mid-town Hotel, Andheri. He submitted that the prosecution has
also duly proved that Pradeep Sharma (OA1) was using the Sim
belonging to A5 and this is evident from the location of the said
number at D.N. Nagar Police Station and the calls exchanged
between OA1 and the accused as well as the calls made to the
Addl.CP–Bipin Bihari. Mr. Chavan further submitted that the
evidence of PW1-Ramprasad Gupta, PW2-Ganesh Iyer, PW3-
Shyamsunder Gupta, PW38-Dheeraj Mehta and PW40-Aruna
Bheda, also stand duly corroborated by the CDRs of the said
witnesses.
25.36 As far as allotment of arms and ammunition in
th
connection with C.R. No.302/2006 on 11 November 2006 and
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12 November 2006, Mr. Chavan relied on the evidence of
PW17–Hanumant Kambli and PW19–Jyotiram Phasale, both
attached to Versova Police Station; PW22–Vishnu Khatal and
PW23–Shavaka Tadvi, both attached to D.N. Nagar Police
Station as well as the evidence of PW60–Maruti Patil attached to
the Magazine Section at Naigaon Armory Depot, (where the arms
and ammunition are kept).
25.37 He submitted that PW17–Hanumant Kambli
has proved the entry made by him with respect to API – Nitin
Sartape (A11) having taken 1 pistol and 6 rounds from the Arms
and Ammunition Division of Versova Police Station. He submitted
that PW19–Jyotiram Phasale has proved that A11-Nitin Sartape,
th
returned 1 pistol and 5 rounds on 12 November 2006 (after
firing 1 round) and that there is an entry to that effect in the
register. He further submitted that PW22–Vishnu Khatal, had
handed over 1 revolver and 6 rounds to PI-Pradeep Suryawanshi
@ Nana (A9) on 11th November 2006 at 18:00 hrs; and also
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weapons to API–Arvind Sarvankar (A22), Dilip Palande (A15)
and Anand Patade (A18). He submitted that the signatures of all
i.e. Pradeep Suryawanshi @ Nana (A9), Dilip Palande (A15) and
Anand Patade (A18) are there in the register, however,
inadvertently, API – Arvind Sarvankar's (A22) signature could not
be taken. He submitted that neither Pradeep Suryawanshi @
Nana (A9), nor Dilip Palande (A15) or Anand Patade (A18)
have denied taking arms from PW22–Vishnu Khatal and that
only API–Arvind Sarvankar (A22) has pleaded ignorance about
having taken any weapon/ammunition.
25.38 According to Mr. Chavan, as per C.R.
No.302/2006, 2 bullets were fired by A9; 1 by A11, 1 by A15 and
1 by A22. He submitted that as far as A9 and A15 are concerned,
they both do not dispute that they had fired at the deceased from
the weapons they had taken. He submitted that admittedly the
weapons used by A9, A11, A15 and, A22 were not sent to the
FSL in connection with C.R.No.302/2006 (Versova Police
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Station) and that all the weapons of the accused were sent to FSL,
post the registration of the present C.R with the Versova Police
Station i.e. C.R.No. 246/2009. Mr.Chavan submitted that the
FSL report would show that the bullet which was allegedly fired
by A11 was fired from A2’s weapon, whereas, the bullet that was
allegedly fired from A22’s weapon was fired from OA1’s weapon.
He submitted that 3 bullets were retrieved from the body of
Ramnarayan and that one of the bullet which was retrieved was
bullet fired from OA1's weapon, 1 from A9’s and 1 from A15’s
weapon. He submitted that it is only after the FSL report was
received in the present C.R, that A11 and A22 disputed taking of
the weapons or firing from the said weapons.
25.39 As far as PW23–Shavaka Tadvi is concerned,
Mr. Chavan submitted that his evidence would show that he had
th
received arms after the alleged encounter i.e. on 12 November
2006 from A9, A15, A18 and A22. The said witness has given
details of the arms and ammunition received from the said
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accused. They are at Exhibits–216 to 219 and 221 to 224. He
submitted that there is absolutely no cross-examination with
respect to return of the said articles i.e. arms and ammunition by
the accused.
25.40 As far as the evidence of PW60 – Maruti Patil is
concerned, Mr. Chavan, submitted that the said witness was
attached to Naigaon Armory Depot, at the relevant time. He
submitted that his evidence will show that there is a history of
every weapon i.e. butt history and that his evidence would show
that although A2 had taken 30 rounds and deposited 30 rounds,
A2 had used A11’s bullet and shot the deceased with his (A2’s)
weapon. He submitted that the same is fortified by the ballistic
report, which shows that A2 fired from the weapon. He
submitted that A11’s bullet was used by A2 in his weapon and
therefore all the rounds which were returned/deposited by A2
were intact. He submitted that the evidence of this witness would
also show that A11 took 30 rounds but deposited 29 rounds, as 1
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bullet was used in C.R. No.302/2006. He submitted that after
receipt of the ballistic report, A11 denied firing on the deceased,
although in the FIR lodged by A9, he is alleged to have fired at
the deceased.
25.41 Mr. Chavan relied on the evidence of PW60 to
show the history of the weapons used by A22, A9, OA1. He
submitted that Butt No.468 was used by A22 – Sarvankar and
that according to C.R. No.302/2006, A22 had taken the said
weapon and 5 bullets from D.N. Nagar Police Station and had
returned the weapon with 4 bullets. He submitted that the
Ballistic report shows that the bullet alleged to have been fired by
A22 was fired from OA1's weapon i.e. Butt No.347. Mr. Chavan
also relied on the evidence of PW64–Sunil Sawant, PW66–Sabir
Sayeed, PW67–Manoj Desai, PW80–Pravin Bhosale, PW98 –
Sandeep Dal, all attached to the Armory Section of Naigaon to
prove the history of the weapon/handing over and depositing of
the weapons etc. Mr. Chavan also relied on the two panch
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witness i.e. PW28–Bapurao, panch to the seizure of the arms from
Naigaon i.e. seizure of arms of A2, A9, A11, A15, A18 and A22
and the evidence of PW34–Shamsuddin Ansari, panch with
respect to the seizure of weapon of OA1. Mr. Chavan submitted
that the evidence of the aforesaid witnesses is duly corroborated
by the investigating officers i.e. PW107–Manoj Chalke, PW8–
Vinay Ghorpade, PW109–Sunil Gaonkar and PW110–K.M.M.
Prasanna with respect to the seizure of the weapons, panchnama,
sending of articles to the FSL and so on.
25.42 As far as Section 197 Cr.PC is concerned, Mr.
Chavan submitted that the acts of the accused are not protected
under Section 197 Cr. PC, inasmuch as, the acts were not done in
the discharge of their official duty warranting protection. In this
connection Mr. Chavan submitted a compilation of judgments on
Section 197 Cr.PC, on which reliance was placed.
25.43 Thus, according to Mr. Chavan, learned Spl. P.P,
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the prosecution has proved all the circumstances relied upon by
them, by leading legal, admissible and cogent evidence and that
the said oral evidence was duly corroborated by the documentary
evidence. He submitted that the prosecution once having proved
abduction of Ramnarayan and Anil Bheda, it becomes a clear case
of custodial death of Ramnarayan, i.e. a case of murder which is
given a colour of a genuine encounter. He submitted that the
appellants/accused have failed to discharge the burden cast on
them under Section 106 of the Evidence Act i.e. to show what
happened to Ramnarayan, whilst he was in their custody, and as
such, this becoming an additional circumstance, in the chain of
circumstances proved by the prosecution. Accordingly, Mr.
Chavan submitted that no interference was warranted in the
impugned judgment and order, so far as it convicts the appellants
for the offences mentioned in Para 2 herein-above.
25.44 We may note here, that all learned counsel
appearing for the appellants/accused and Mr. Palande (A15),
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appearing in-person as well as Mr. Chavan, learned Spl. P.P have
submitted their written submissions, during the course of hearing,
which were taken on record by us.
IV. ANALYSIS
A. Sequence of events in detail
26 The case in hand has a chequered history, and as such,
it would be necessary to place the two versions, that have come
on record; one as mentioned in C.R. No. 302/2006 registered
th
with the Versova Police Station on 11 November 2006, at the
behest of A9; and the present case i.e. C.R. No. 246/2009
th
registered with the Versova Police Station, on 20 August 2009,
after SIT was constituted, after almost 3 years of the incident,
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pursuant to the order dated 13 August 2009 passed by this
Court in W.P. No. 2473/2006 (preferred by Ramnarayan’s
(deceased) brother i.e. PW1).
S.Q. Pathan / N.S. Chitnis 158/867
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i. C.R. No. 302/2006 registered with the Versova Police
Station at the behest of A9
27 According to Police Inspector-Pradeep Pandurang
Suryawanshi (A9), who at the relevant time, was attached to D.N.
th
Nagar Police Station, he received information on 11 November
2006 at 16:45 hrs from his informer, that one Ramnarayan @
Lakhanbhaiya (deceased), aged 38 years, who was wanted in
cases of murder, dacoity, theft and extortion, was to come to
Nana Nani Park at Seven Bungalow, Andheri (West), Mumbai, to
meet his associates/accomplice. Accordingly, at 17:15 hrs, A9
informed his Superior Officers i.e. the ACP, D.N. Nagar Division,
the DCP, Zone-IX and the Addl. CP, West Region of the same. At
about 18:30 hrs, Pradeep Suryawanshi (A9) called API Dilip
Palande (A15), API Arvind Sarvankar [A22 (now deceased], PSI
Anand Patade (A18), PC Devidas Sakpal (A13) and other staff to
his cabin and briefed them about the information so received.
Pursuant thereto, all the aforesaid drew a plan to apprehend
Ramnarayan @ Lakhanbhaiya.
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27.1 At about 18:40 hrs., Pradeep Suryawanshi (A9),
alongwith his officers and constables and the secret informer,
made a plan to arrest Ramnarayan and the officers and men were
given appropriate instructions about the said operation.
27.2 At about 19:10 hrs., the aforesaid police officers
and the staff reached Nana Nani Park, Seven Bungalow, Juhu-
Versova Link Road. The spot was inspected and Pradeep
Suryawanshi (A9) formed two groups (Group 1 and Group 2)
and concealed themselves at different spots. Pradeep
Suryawanshi (A9) told the Officers and the staff to wait for his
signal.
27.3 Group-1 consisted of PI Pradeep Suryawanshi
(A9), the secret informer, API Nitin Sartape (A11), PSI Anand
Patade (A18), Head Constable-Prakash Kadam (Buckle No.
18839) (A16), Police Naik-Pandurang Kokam (Buckle No. 26645)
(A19), Police Constable-Devidas Sakpal (Buckle No. 10502)
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(A13). The said group i.e. Group-1 positioned themselves in
front of Magnum Opus Building, situated on the west side of the
Nana Nani Park.
27.4 Group-2 consisted of API Palande (A15), API
Sarvankar (A22), PSI Harpude (A17), Police Constable-Ratnakar
Kamble (Buckle No. 31963) (A3), Police Constable-Tanaji Desai
(Buckle No.31241) (A2) and Police Constable-Sandip Sardar
(Buckle No.33492) (A20). The said group-2 positioned
themselves in front of Trishul Building, near the compound of
Nana Nani Park.
27.5 At about 20:10 hrs., one auto-rickshaw came
from Versova side and stopped near an electric pole, on the
southern side of Nana Nani Park. One person alighted from the
said auto and was loitering; the secret informer, who was present
in Group-1, identified the said person as Lakhanbhaiya and
accordingly, informed PI Pradeep Suryawanshi (A9), who
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thereafter, signaled to the police officers/staff and cautiously
proceeded to apprehend him. The Officers/Staff in Group-2 also
proceeded ahead to arrest Ramnarayan. According to A9, on
seeing the movements of the police officers, Ramnarayan pulled
out a revolver from his waist and pointed it at PI Pradeep
Suryawanshi (A9). According to PI Pradeep Suryawanshi (A9), he
shouted loudly and identified them as policemen and asked him
not to fire, but to surrender himself. It is alleged that
Ramnarayan did not heed to the warnings of the police and fired
one round at PI Pradeep Suryawanshi (A9), however, he evaded
the said shot. It is further alleged that API Sarvankar (A22)
positioned in Group-2 also shouted saying that they were
policemen and that he (Ramnarayan) should surrender, however,
Ramnarayan is alleged to have fired one round in the direction of
Group-2.
27.6 It is the case of A9, that the said officers and
staff in Group-1 and Group-2, in order to protect themselves and
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the public, from being shot by Ramnarayan, opened fire in
retaliation/self defence. According to PI Pradeep Suryawanshi
(A9), he fired two rounds from his service revolver, API Sartape
(A11) fired one round from his pistol and API Sarvankar (A22)
and API Palande (A15) fired one round each from their service
revolvers, in the direction of Ramnarayan. Pursuant to the said
firing, Ramnarayan sustained bullet injuries and fell down. The
said firing is alleged to have taken place between 20:11 hrs. to
20:13 hrs.
27.7 PI Pradeep Suryawanshi (A9) informed the
incident to the West Control Room at 20:15 hrs. and requested
them to send a wireless van for assistance, to shift Ramnarayan
to the Hospital. Pursuant thereto, Versova-1 Mobile reached the
spot and removed Ramnarayan to Cooper Hospital. API
Sarvankar (A22) and API Nitin Sartape (A11) are stated to have
accompanied Ramnarayan to the Hospital. Ramnarayan, when
brought to the OPD, at 21:00 hrs, was declared to be dead by the
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Casualty Medical Officer. PI Pradeep Suryawanshi (A9) is stated
to have asked the staff to protect the spot, after which, PI Pradeep
Suryawanshi (A9) went to Versova Police Station, Mumbai, and
lodged an FIR, which was registered vide C.R No. 302/2006 at
20:50 hrs., for the alleged offences punishable under Sections
307 and 353 of the IPC and Sections 3, 25 and 27 of the Arms
Act, as against Ramnarayan. (The said FIR is marked as Exh.
278). According to A9, while the FIR was being recorded, API
Sarvankar (A22) informed him that Ramnarayan was declared
dead before admission by the CMO of Cooper Hospital and
hence, the same was also incorporated in the FIR. Recording of
said FIR, by PI Sankhe (PW39), i.e. C.R. No.302/2006 with the
Versova Police Station, concluded at 21:50 hrs.
27.8 Post the registration of the said C.R, PI
Mohandas Sankhe (PW39) took over the investigation. He
directed PSI Jadhav to go to Cooper Hospital and carry out the
inquest panchnama. PI Sankhe seized two empties of bullets fired
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from the 0.38 service revolver of PI Pradeep Suryawanshi (A9)
under a panchnama (Exh.–279) between 22:05 to 22:35 hrs. PI
Sankhe (PW39), alongwith PI Suryawanshi, thereafter proceeded
to the spot of the incident and drew a spot panchnama on the
th
very same day i.e. 11 November 2006. The said spot
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panchnama allegedly commenced at about 23:00 hrs. on 11
th
November 2006 and concluded at 1:35 hrs. of 12 November
2006 (Exh. 283).
27.9 According to PI Sankhe (PW39), there was a
pool of blood near electric pole No. KBC 13-061; one revolver
was lying near the said pool of blood; and one empty was found
near the said pool of blood and near Magnum Opus Building.
Pursuant thereto, PI Sankhe (PW39) took photographs of the spot
with the help of a photographer, Mr. Sharma. PI Sankhe (PW39)
took measurements of the place of incident, examined the
revolver allegedly used by Ramnarayan and found two empties
at the spot and two live bullets in the revolver. One fingerprint
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expert Mr. Gangadhar Sawant was called to examine the
fingerprints on the revolver, however, he did not find any
fingerprints and accordingly submitted his report, which is at
Exh. 284.
27.10 During the course of investigation, PI Sankhe
(PW39) also seized one empty produced by API Sarvankar (A22)
and one empty produced by API Palande (A15) under a
panchnama (Exh. 286). Accordingly, PI Sankhe (PW39) recorded
the statements of the raiding party, of the inquest panchas, the
photographer and other witnesses and also forwarded the dead
body for post-mortem examination vide ADR Form (Exh. 288)
and request letter (Exh. 289). PI Sankhe (PW39) also forwarded
the articles to the Chemical Analyzer and carried out investigation
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till 15 November 2006. Subsequently, the investigation was
taken over by PI Dilip Patil of Oshiwara Police Station, who
recorded the statements of the police present at the time of
encounter and of other witnesses.
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ii. C.R. No. 246/2009 registered with Versova Police
Station, after SIT was constituted pursuant to the order
passed by this Court.
28 The prosecution case is to the contrary. It is the
th
prosecution case, that from 10 November 2006, a watch was
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kept on the movements of Anil Bheda by the accused, that on 11
November 2006, Ramnarayan (deceased) and Anil Bheda left Anil
Bheda’s house at around 10:45 hrs.; that they both went to
PW38-Dheeraj Mehta’s shop at around 12:15 hrs, which was
situated at Sector 9A, Vashi, Navi Mumbai; that they stepped out
of the shop for sometime, when at around 12:35 hrs to 12:37
hrs, Ramnarayan and Anil Bheda were abducted in a Qualis
vehicle; that one Nilesh on seeing the same, immediately came to
PW38-Dheeraj Mehta’s shop at 12:40 hrs and informed him that
his friend (Anil Bheda) and friend’s friend (Ramnarayan) had
been taken in a Qualis Vehicle, by 5-6 persons, who were in plain
clothes; that PW38-Dheeraj Mehta informed PW57-Girish
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Nepali; who in turn, informed PW3-Shyamsunder Gupta, who in
turn, informed PW1-Ramprasad Gupta. Pursuant thereto, PW1-
Ramprasad Gupta called PW38-Dheeraj Mehta, who informed
him about the abduction; that PW1-Ramprasad Gupta asked
PW38-Dheeraj Mehta to inform PW40-Aruna Bheda, pursuant to
which, PW38-Dheeraj Mehta went to PW40-Aruna Bheda’s
house, at about 14:30 hrs. and informed her what had happened.
When PW38-Dheeraj Mehta was at PW40-Aruna Bheda’s house,
PW1-Ramprasad Gupta called PW38-Dheeraj Mehta, pursuant to
which, PW1 and PW2-Ganesh Iyer spoke to PW40-Aruna Bheda
and informed her that there was danger to the lives of Anil Bheda
and Pandeyji (Ramnarayan); PW1 also disclosed that they were
likely to be killed in a fake encounter; fax and phone numbers of
police were given by PW1 and PW2, to PW40-Aruna Bheda to
enable her to inform the authorities, however, PW40 decided to
wait till 17:00 hrs. to decide further course of action; that in the
meantime, PW1 and PW2 sent faxes and telegrams to all the
authorities in Aruna Bheda’s name, between 16:00 hrs. to 18:28
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hrs.; that at about 18:30 hrs., PW40 went to Vashi Police Station
and lodged a missing complaint that her husband Anil Bheda was
missing; that PW1-Ramprasad and PW2-Ganesh also visited
Belapur Police Station to find the whereabouts of Ramnarayan,
but did not get any information; and that at around 20:30 hrs.,
PW1-Ramprasad was informed by Shyamsunder Gupta (PW3)
that his brother was shot by the police in an encounter. Pursuant
thereto, PW1, PW2 with others, visited Versova Police Station
and from there, to Nana Nani Park; that they reached Nana Nani
Park at about 22:30 hrs. and found none at the spot. The said
persons only found a small pool of blood on which a newspaper
was placed with a stone kept on it.
28.1 It is the prosecution case, that soon after the
fake encounter, A9 lodged a false FIR as against Ramnarayan @
Lakhanbhaiya alleging offences under Section 307 etc. According
to the prosecution, PW1 had sent complaint letters to several
authorities, as he suspected foul play, however, since no action
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was taken, PW1 filed a writ petition in this Court, being
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Criminal Writ Petition No. 2473/2006, on 15 November 2006.
Pursuant to the filing of the petition, a sleuths of orders were
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passed by this Court, including the order dated 13 February
2008, wherein this Court directed the Metropolitan Magistrate,
Railway Mobile Court to conduct an inquiry regarding police
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firing on 11 November 2006 under Section 176(1-A) of the
Cr.PC, as the Court was not happy with the report of the SLAO,
which had recorded a finding, that the encounter was a genuine
encounter. The Metropolitan Magistrate, Railway Mobile Court,
conducted an inquiry and accordingly submitted a report to this
Court. According to the learned Magistrate, it was a fake
encounter. Pursuant to the said report, the High Court vide order
th
dated 13 August 2009, constituted a SIT under the DCP, Zone-
IX, K.M.M. Prasanna.
th
28.2 The said order dated 13 August 2009 passed
by this High Court (Coram : B.H. Marlapalle & Smt. Roshan S.
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Dalvi, JJ.) is reproduced hereunder :
hereunder :
“1. This Petition under Article 226 of the Constitution of
India has been filed by a learned member of the Bar alleging
that his elder brother Ramnarayan Vishwanath Gupta was
abducted by the Mumbai Police on 11th November, 2006 at
about 1.00 p.m. and in a fake encounter he was shown killed
at about 8.00 p.m. on the same day. He had therefore, sent
telegraphic messages to the Respondent No.1 and other
higher-ups either in his name or in the name of the wife of
Mr. Anil Bheda, who was also allegedly picked-up by the
police along with Ramnarayan. On 12th November, 2006
the Petitioner’s other elder brother Shyamsunder identified
the dead body of Ramnarayan at J.J. Hospital and on the
next day the Petitioner requested for a copy of the
postmortem report, but he was not obliged. He filed a
complaint with Respondent No.1 on 14th November, 2006
and requested for an investigation into the murder of his
brother. As there was no response to the complaint, he has
approached this Court.
2. The Respondents including the Intervener have filed
reply and it has been stated that Ramnarayan was a known
criminal and wanted in pending criminal cases and the police
had got a tip off that he was to visit Nana Nani garden in
Andheri on 11th November, 2006 around 7.00 p.m.
Therefore, the police party was deputed to visit the said
place and take him in custody. At about 7.30 p.m,
Ramnarayan came in an auto-rickshaw to the destination and
when he was called upon to surrender by the police party, he
started firing from the weapon in his possession and
therefore, the police had to upon fire in which Ramnarayan
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died.
3. This Court passed orders from time to time and a
magisterial inquiry conducted at the behest of Respondent
No.1 was not found to be sufficient to discard the
Petitioner’s prayer. In a detailed order dated 13th February,
2008 this Court in paragraph 7 recorded a prima facie
satisfaction that the case was within the parameters of
Section 176(1-A) of the Code of Criminal Procedure and
therefore, it was necessary to order an inquiry under the said
Section and to be conducted by the Metropolitan Magistrate.
In paragraph 8 of the said order this Court clarified that
whether the alleged encounter had taken place while the
deceased was in custody of the police or whether he had
disappeared after the deceased was taken into custody by the
police, or otherwise, would be the issues requiring inquiry by
the concerned Metropolitan Magistrate. Consequently the
learned Metropolitan Magistrate, Railway Mobile Court,
Andheri submitted her report dated 11th August, 2008 and
in her forwarding letter on the same day she stated that the
inquiry conducted by her was in respect of the following 3
issues:
a) Whether alleged encounter has taken place while
the deceased was in custody of police.
b) Whether he had disappeared, after the deceased
was taken into custody by the police.
c) Or otherwise.
4. In her inquiry it is concluded that the death of
Ramnarayan was caused while he was in police custody. His
death had not taken place at the spot alleged by the police
and that the deceased had not disappeared from the police
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custody before he was done to death, but that the deceased
was abducted by the police. As per the learned Metropolitan
Magistrate the Petitioner’s brother was somewhere else and
the police had shown that as an encounter killing at Nana
Nani Park.
5. In the order dated 23rd January, 2009 this Court
noted that it would be desirable to hear the Respondents as
well the Interveners on their objections to the report
submitted by the learned Metropolitan Magistrate and
consequently we have heard the learned Counsel for all the
parties at length. We have also considered the post mortem
report and more particularly the places of bullet injuries on
the person of the deceased. The learned Counsel for the
Respondents and Interveners by citing a host of decisions of
the Supreme Court as well as this Court urged before us not
to entertain this Petition and argued that the Petitioner be
relegated to the alternative remedy of filing a private
complaint under Section 190 and 200 of the Code of
Criminal Procedure and a Petition under Article 226 of the
Constitution of India cannot be entertained. Whereas Mr.
Pradhan, the learned Sr. Counsel for the Petitioner also
relied upon a host of the decisions of the Supreme Court as
well as this Court including the Full Bench of this Court and
submitted that it was a fit case to direct the police authorities
to register a crime and handover the investigation to the
Central Bureau of Investigation, as not only some of the
senior police officials are the Interveners, but even the
affidavit in reply filed by the Respondent No.1, who is the
head of the Mumbai Police, indicated suppression of
material facts and thus an attempt to mislead the Court.
6. Be that as it may, we are satisfied that the complaint
of the Petitioner in respect of the murder of his brother is
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required to be investigated into and more so as it is an
admitted fact that Ramnarayan died by the bullets fired by
the police officers. We had called upon the learned Incharge
P.P to submit before us a panel of I.P.S. Officers, in
consultation with the Directorate General of Police -
Maharashtra, so that one of these paneled officers could be
appointed as the Investigating Officer and as a head of the
Special Investigating Team, which we propose to constitute.
7. Mr. Pol has submitted before us a list of 5 officers
from the I.P.S. Cadre. We hereby appoint Shri
K.M.M.Prasanna, D.C.P, Mumbai City as the Investigating
Officer and we leave it to the choice of the Investigating
Officer to have other 2 or 3 police officers to assist him in
the investigation and the said personnel shall be spared by
the Commissioner of Police, Mumbai or the Directorate
General of Police, Maharashtra State, as the case may be.
8. We direct the Petitioner to approach the said Officer
immediately, submit a copy of his complaint dated 14th
November, 2006 addressed to Respondent No.1 and request
the said Officer to record his statement afresh, which
statement shall be treated as an F.I.R to be registered by the
said Investigating Officer. The Petitioner shall also submit
the list of witnesses to the Investigating Officer. The
Investigating Officer shall proceed to record the statements
of all the witnesses and ofcourse the list of witnesses should
not be confined only to the names mentioned by the
Petitioner. We also leave it to the choice of the Investigating
Officer to subject any of these witnesses to lie detection test,
including the Petitioner and his friend Shri Ganesh Iyer –
Advocate, Shri Anil Bheda and his wife Mrs. Aruna Anil
Bheda.
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9. The Investigating Officer shall submit before us the
progress report in the investigation so conducted from time
to time and the first such report shall be placed before us
within 4 weeks from today.
10. Mr. A.N. Roy appeared before us on 12th August,
2009 and submitted his affidavit tendering an unconditional
apology and explanation as to the circumstances leading to
the receipt of the telegram sent by the Petitioner on 11th
November, 2006 and its forward dispatch for an appropriate
action by the D.C.P. We have heard Mr. Walwalkar
appearing for Mr. Roy. We have accepted the apology
tendered by Mr. Roy.
11. Hence, Stand over for 4 weeks.
12. A copy of this order be forwarded forthwith to (1)
The Director General of Police, Maharashtra, (2) The
Commissioner of Police, Mumbai and (3) Shri K.M.
Prasanna, D.C.P. Mumbai City.
Sd/- Sd/-
(SMT.ROSHAN S. DALVI, J.) (B.H.MARLAPALLE, J.)
13. The above order was dictated in the first half.
However, in the second half Mr. Mirajkar, the learned
Counsel for one of the Interveners submitted an oral
application and prayed for stay to the operation of this
order.
14. The oral application is hereby rejected.
(emphasis supplied)
Sd/- Sd/-
(SMT.ROSHAN S. DALVI, J.) (B.H.MARLAPALLE, J.)”
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28.3 Pursuant to the said order, SIT was constituted,
as this Court was prima facie of the opinion that it was a fake
encounter.
28.4 During the course of investigation by the SIT,
the prosecution recorded the statements of several persons
including that of PW1-Ramprasad Gupta (brother of deceased-
Ramnarayan), PW3-Shyamsunder Gupta (another brother of
deceased - Ramnarayan), PW2-Ganesh Iyer, who was present with
PW1-Ramprasad Gupta, when he received the information about
abduction of his brother Ramnarayan, Aruna Bheda (PW40),
Dheeraj Mehta (PW38) and several other witnesses.
28.5 The most important and prime witness whose
statement was recorded by SIT, both under Section 161 and under
Section 164 was, that of Anil Bheda, who was present with
Ramnarayan, at the time when Ramnarayan was abducted from
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Sector 9, Vashi, Navi Mumbai. Thus, Anil Bheda was a star
witness for the prosecution with respect to the abduction of the
two of them i.e. himself and Ramnarayan, by the police from
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Vashi on 11 November 2006 around 12:30 hrs. and of the travel
from Vashi to Bhandup Complex and from there to D.N. Nagar
Police Station; and, thereafter, of his wrongful confinement by the
police and others. It is the prosecution case that Anil Bheda, was
kept in confinement by the appellant/accused since the date of his
th
abduction i.e. 11 November 2006, initially at Bhatwadi,
Ghatkopar, then in a Hotel at Kolhapur, and then at Mid-Town
Hotel, Andheri, Mumbai, so that he does not spill the beans vis-a-
vis the incident of abduction, he being the prime witness. It is
pertinent to note, that SIT and the learned Magistrate recorded
rd
the statements of Anil Bheda under Sections 161 and 164 on 3
th
September 2009 and 30 December 2009 respectively. Anil
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Bheda, the star witness in the case, went missing on 13 March
2011 i.e. within 3 to 4 days, after charge came to be framed as
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against the appellants/accused in the case, on 8 March 2011.
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Pursuant thereto, Aruna Bheda lodged a missing complaint on
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13 March 2011 with the Vashi Police Station. A burnt dead body
was found by the Manor Police, in the vicinity of a farm at
Manor, District Thane. Later on, it was confirmed that, the burnt
dead body was that of Anil Bheda. The said body was identified
on the basis of the DNA carried out. It appears that the
investigation of the said case i.e. death of Anil Bheda, is still
pending with the State CID.
28.6 The investigation done by SIT in the instant
case revealed that Ramnarayan and Anil Bheda were abducted by
the police from Vashi and thereafter, were taken to Bhandup
Complex and from there, to D.N. Nagar Police Station.
Ramnarayan was shot dead. It is the prosecution case, that the
appellants/accused created a false case, that Ramnarayan was
killed in an encounter at Nana Nani Park, Andheri. Thereafter,
Anil Bheda, an eye-witness to the abduction and what happened
between Vashi and D.N. Nagar was wrongfully confined by the
S.Q. Pathan / N.S. Chitnis 178/867
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police and others, for almost a month, so that he does not spill
the beans. Accordingly, after investigation, charge-sheet was filed
in the said case as against the appellants and acquitted accused –
Pradeep Sharma (OA1), under Sections 364, 365, 368, 302, 120B
r/w 364, 143, 144, 147, 148, 149 r/w. 364, 149 r/w 365, 364 r/w
149, 365 r/w 149, 368, 364 r/w 109 r/w 120B and 365 r/w 109
r/w 120B, 368 r/w.109 r/w 120B, 344 r/w. 34, 344 r/w. 109 r/w
120B, 302 r/w 34, 302 r/w 109 r/w 120B, 201 r/w 34, 201 r/w
109 r/w 120B, 201, 201 r/w 109 r/w 120B, 174(A) of the IPC, in
the Court of the learned Metropolitan Magistrate, Railway
Mobile Court, Andheri (East), Mumbai.
28.7 Since the case was Sessions triable, the case was
committed to the Court of Sessions for trial. The prosecution in
support of its case, examined as many as 110 witnesses.
28.8 The defence of the accused was that of denial
and false implication. According to some of the accused i.e.
S.Q. Pathan / N.S. Chitnis 179/867
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Tanaji Desai (A2), Ratnakar Kamble (A3), Pradeep Suryawanshi
(A9) and Dilip Palande (A15), it was a genuine encounter,
whereas others denied their presence at the spot. Vinayak Shinde
(A7), in support of his case, examined two witnesses.
LIST OF DEFENCE WITNESSES EXAMINED BY THE
ACCUSED NO.7
signed by
SHAGUFTA
QUTBUDDIN
PATHAN
Date:
2024.03.19
17:05:41
+0530
2024:BHC-AS:13217-DB
SHAGUFTA
QUTBUDDIN
PATHAN
J-Apeals-707-2019-group.doc
J U D G M E N T
Table of Contents
(The soft copy of this judgment in PDF is bookmarked to facilitate
navigation)
I. BACKGROUND OF THE CASE...............................................................................29
II. SUBMISSIONS OF THE APPELLANTS/ACCUSED.................................................31
- Mr. Sudeep Pasbola for A7 in Cri.Appeal/1080/2019 ...............................................31
- Mr. Sanjeev Kadam for A4 in Cri.Appeal/944/2013 .................................................34
- Mr. Jagdish Shetty for A8, A10, A12 and A21 in Cri.Appeal/942/2013 .................41
- Mr. Jagdish Shetty for A5 and A6 in Cri. Appeal/943/2020 .....................................47
- Ms. Pradnya Talekar for A9 in Cri. Appeal/151/2021 ..............................................54
- Mr. Pendse for A11 in Cri. Appeal/707/2019 ...........................................................69
- Mr. Girish Kulkarni for A17 in Cri. Appeal/1490/2018 ...........................................72
- Mr. Nagraj Shinde for A20 in Cri. Appeal/86/2021 .................................................76
- Mr. Ashwin Thool for the A18 in Cri. Appeal/1239/2019 .......................................78
- Mr. Sushil Gaglani for OA2 in Cri. Appeal/104/2021 ..............................................82
- Mr. Prakash Shetty for A13 in Cri. Appeal/117/2019 ...............................................90
- Mr. Manish Mazgaonkar for A16 in Cri. Appeal/1493/2018: ..................................93
- Mr. Dilip Sitaram Palande (A15) in-person in Cri. Appeal/1242/2018 .....................97
- Mr. Waqar Pathan for A3 in Cri. Appeal/1038/2013 ..............................................110
III. S UBMISSIONS OF THE STATE ...........................................................................113
IV. ANALYSIS.............................................................................................................159
A . Sequence of events in detail.................................................................................159
i. C.R. No. 302/2006 registered at the behest of A9.............................................159
ii. C.R. No. 246/2009 registered after SIT was constituted..................................167
B. The Law on Circumstantial Evidence ...................................................................182
C. Circumstances and Analysis of each of the circumstance .....................................185
i. FORMATION OF SQUAD..............................................................................190
ii. ABDUCTION.................................................................................................239
iii. ENCOUNTER/CUSTODIAL DEATH/MURDER..........................................362
a. On false FIR and Fabrication of Records/Evidence......................................364
b. Spot panchnama not recorded at the spot...................................................377
S.Q. Pathan / N.S. Chitnis 1/867
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c. No meeting held by A9 in his cabin............................................................390
d. No prior information furnished to superiors by A9.....................................401
e. False station diary entries and documents...................................................411
f. Revolver and railway tickets planted on the deceased.................................420
g. Pool of blood not proportionate to injuries.................................................436
h. Map of Nana Nani Park falsifies the case of a genuine encounter................441
i. Empty found near Magnum Opus...............................................................445
j. Defence Witness..........................................................................................447
iv. BALLISTIC EVIDENCE/FORENSIC EVIDENCE..........................................454
a. Weapon History...……………………………………………………………….454
b. Allotment and Deposit of Arms and Ammunition in C.R. No. 302/2006....456
c. Investigation vis-a-vis the weapons.............................................................462
d. Movements of Weapons, Arms and Ammunition.......................................473
e. Link evidence and Ballistic Expert’s Evidence..............................................477
f. Law with regard to Ballistic Evidence/Forensic Evidence..............................506
v. WRONGFUL CONFINEMENT OF ANIL BHEDA........................................514
vi. PRESSURE TACTICS / MANIPULATION BY ACCUSED PERSONS.……….553
vii. CALL DETAIL RECORDS (`CDR’)..............................................................607
a. Law vis-a-vis CDR.......................................................................................608
b. Evidence of nodal officers...........................................................................615
viii. CRIMINAL CONSPIRACY..........................................................................672
D. Lacunae in 313 ...................................................................................................681
E. Sanction under Section 197 Cr.PC – Whether necessary ? ...................................691
F. Absence of Motive – Whether fatal? .....................................................................706
G. Section 106 shift of burden of proof – It’s applicability .......................................716
H. Conclusion .........................................................................................................731
I. Order .................................................................................................................765
V. APPEAL AGAINST ACQUITTAL...........................................................................769
A. Submissions .........................................................................................................770
B. Scope of Acquittal ................................................................................................792
C. Analysis of the Evidence on record ......................................................................804
D. Order ..................................................................................................................861
VI. CRIMINAL REVISION APPLICATION NO. 182/2023......................................865
S.Q. Pathan / N.S. Chitnis 2/867
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.707 OF 2019
Nitin Gorakhnath Sartape,
Aged: 53 years,
Residing at U/14, Hanjur Nagar, … Appellant
Pump House, Andheri (E), Mumbai (Org.Accused No.11)
Versus
The State of Maharashtra,
(At the instance of Versova Police Station
C.R. No. 246/2009) … Respondent
WITH
CRIMINAL APPEAL NO.86 OF 2021
Sandip S/O Hemraj Sardar [Prisoner],
Age-49 yrs, Occu: NIL,
R/o. 4/131, B. No. 4, Aram Nagar,
Police Colony, Seven Bunglow, … Appellant
Andheri (W), Mumbai- 400 061 (Org.Accused No.20)
Versus
The State of Maharashtra,
(At the instance of SIT Versova Police
Station, C.R. No. 245 of 2009, C.C.
Nos.886/PW/2010, 1555/PW/2010,
2300/PW/2010, & 2728/PW/2010)
… Respondent
WITH
CRIMINAL APPEAL NO.104 OF 2021
S.Q. Pathan / N.S. Chitnis 3/867
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Tanaji Bhausaheb Desai,
Age: 50 years, Occupation : Under
Suspension, R/o. 7/101, Solitaire 2,
Poonam Gardens, Opp. SK Stone,
Mira Road (E), Thane - 401107 … Appellant
(Org.Accused No.2)
Versus
1. The State of Maharashtra,
(At the instance of Versova Police
Station)
2. The Inspector of Police
Versova Police Station … Respondents
WITH
CRIMINAL APPEAL NO.151 OF 2021
Pradeep Pandurang Suryawanshi,
Age: 67 years, Occ. Nil,
nd
R/o. Room No. 202, 2 floor,
Ravi Kiran Co-op. Housing Society, … Appellant
Gorai Road, Borivali (West), Mumbai. (Org.Accused No.9)
Versus
The State of Maharashtra,
(At the instance of Special Investigation
… Respondent
Team, Versova Police Station)
WITH
CRIMINAL APPEAL NO.942 OF 2013
1. Manoj Mohan Raj @ Mannu,
Age: 44 years, Residing at
S.Q. Pathan / N.S. Chitnis 4/867
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Noor Mohd. Chawl,
Young Committee, Gundavali
Gaothan, Andheri, Mumbai.
2. Sunil Ramesh Solanki,
Age : 33 years, Residing at BC
Workers' Quarters, B-12 Akurli Road,
Samata Nagar, Kandivali (East),
Mumbai.
3. Mohamed Shaikh Mohd. Taka
Moiddin Shaikh, Age: 44 years,
Residing at : B-13, Room N.303,
Sector-II, Shanti Nagar, Mira Road,
Thane.
4. Suresh Manjunath Shetty,
Age: 43 years, Residing at C- 704,
Shanti Vidya Nagar, Hatkesh,
Mira Road (East), Thane.
… Appellants
(Org.Accused Nos.8,
10, 12 and 21)
Versus
The State of Maharashtra,
(At the instance of SIT (Versova Police
Station, C.R. No. 246/2009) C.C.
Nos.886/PW/2010, 1555/PW/2010,
2300/PW/2010, & 2728/PW/2010)
… Respondent
WITH
CRIMINAL APPEAL NO.943 OF 2013
1. Hitesh Shantilal Solanki @ Dhabbu,
Age: 44 years, residing at
S.Q. Pathan / N.S. Chitnis 5/867
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Shardabai Chawl, Room No.1,
Prabhat Colony, Vakola, Santacruz,
Mumbai.
2. Akhil Shirin Khan @ Bobby,
Age: 45 years, residing at Flat No.604,
Priyadarshini Park Society, Om Nagar,
J. B. Nagar, Sahar Road, Andheri
(East).
3. Janardan Tukaram Bhanage,
Age: 59 years, residing at F-9, Sector-9,
CBD Belapur, Navi Mumbai.
… Appellants
(Orig. Accused Nos.
5, 6, and 14)
As per Court's order dated 23/2/2021,
orig. Accused No. 14 stands abated.
(Expired hence abated).
Versus
The State of Maharashtra,
(At the instance of SIT (Versova Police
Station C.R. No. 246/2009)
C.C.Nos. 886/PW/2010, 1555/PW/2010,
2300/PW/2010, & 2728/PW/2010) … Respondent
WITH
CRIMINAL APPEAL NO.944 OF 2013
1. Shailendra Dhoopnarayan Pandey
@ Pinky, Age : 39 years, residing at
Room No.31, Vazir Glass Chawl
Committee, Opp. Natraj Studio, … Appellants
Andheri (East), Mumbai. (Orig. Accused No.4)
Versus
S.Q. Pathan / N.S. Chitnis 6/867
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The State of Maharashtra (at the instance
of SIT (Versova Police Station C. R.
No.246/2009) C.C. Nos. 886/PW/2010,
1555/PW/2010, 2300/PW/2010, &
2728/PW/2010) … Respondent
WITH
CRIMINAL APPEAL NO.1038 OF 2013
1.Ratnakar Gautam Kamble @ Rattu,
Age: 41 years, residing at E/103,
Bandra Police Line, R. K. Patkar Marg,
Bandra (West), Mumbai:400050.
2. Arvind Arjun Sarvankar,
Age: 50 years, residing at S. V. Road,
Kandivali (West), Mumbai.
As per Court's order dated 23/2/2021,
orig. Accused No. 22 stands abated.
(Expired)
… Appellants
(Orig. Accused Nos.
3 and 22)
Versus
The State of Maharashtra (at the instance
of SIT (Versova Police Station C. R.
No.245/2009) C.C. Nos. 886/PW/2010,
1555/PW/2010, 2300/PW/2010, &
2728/PW/2010) … Respondent
WITH
CRIMINAL APPEAL NO.1080 OF 2019
Vinayak Balasaheb Shinde @ Veenu,
Age: 49 years, Occ : Nil,
S.Q. Pathan / N.S. Chitnis 7/867
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Residing at Plot No. 2, Gold Sunit CHS,
Kalwa Naka, Opp. Akash Bar, … Appellant
Kalwa Road, District: Thane. (Org.Accused No.7)
Versus
The State of Maharashtra,
(At the instance of SIT (Versova Police
Station, C.R. No. 246/2009) … Respondent
WITH
CRIMINAL APPEAL NO.1177 OF 2019
Devidas Gangaram Hari Sakpal,
Age: 52 years, Occ : Service,
R/O. 48/6, Worli Police Camp,
Sir Pochkhanwala Road, … Appellant
Worli, Mumbai 400 025. (Org.Accused No.13)
Versus
The State of Maharashtra,
(Through Inspector of Police,
Spl. Investigation Team – Versova Police
Station - C.R. No. 246/2009) … Respondent
WITH
CRIMINAL APPEAL NO.1239 OF 2019
Anant Balaji Patade,
R/O. : Misquitta House,
First Floor, Bajaj Road,
Vile Parle (W), Mumbai - 400056
… Appellant
(Org.Accused No.18)
S.Q. Pathan / N.S. Chitnis 8/867
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Versus
The State of Maharashtra,
(through Special Investigating Agency) … Respondent
WITH
CRIMINAL APPEAL NO.1242 OF 2018
Dilip Sitaram Palande,
Aged about 57 years, Occ : Nil,
R/at 19/604, Sanskruti CHS,
Thakur Complex, … Appellant
Kandivali (East), Mumbai. (Org.Accused No.15)
Versus
The State of Maharashtra,
(At the instance of SIT / Versova Police
Station, Mumbai (C.R. No. 245/2009)
… Respondent
WITH
CRIMINAL APPEAL NO.1488 OF 2018
Pandurang Ganpat Kokam,
Age 56 years,
R/at : Chawl No. E/2, Room No.5,
Gamdevi Compound, Survey No. 79,
Mandeer Road, Meera Gavthan, … Appellant
Dist. Thane. (Org.Accused No.19)
Versus
The State of Maharashtra,
(At the instance of SIT / Versova Police
Station, Mumbai C.R. No. 246/2009) … Respondent
S.Q. Pathan / N.S. Chitnis 9/867
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WITH
CRIMINAL APPEAL NO.1490 OF 2018
Ganesh Ankush Harpude,
Age: 58 years,
R/at :- 6/114, Police Quarters, D.N. … Appellant
Nagar, Andheri (W), Mumbai (Org.Accused No.17)
Versus
The State of Maharashtra,
(At the instance of SIT/Versova Police
Station. Mumbai C.R. No. 246/2009) … Respondent
WITH
CRIMINAL APPEAL NO.1493 OF 2018
Prakash Ganpat Kadam,
Age : 61 years,
R/at : Plot No. 842, B/18,
Shree Shiv Samarth CHS,
Sector No. 8, Charkop, … Appellant
Kandivali (W), Mumbai – 400 067 (Org.Accused No.16)
Versus
The State of Maharashtra,
(At the instance of SIT / Versova Police
Station, Mumbai C.R. No. 246/2009) … Respondent
WITH
CRIMINAL APPEAL NO.350 OF 2015
S.Q. Pathan / N.S. Chitnis 10/867
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The State of Maharashtra
(at the instance of SIT (Versova Police
Station C.R.No.246/2009) CC. Nos.
886/PW/2010,1555/PW/2010,
2300/PW/2010 and 2728/PW/2010)
… Appellant
(Orig.Complainant)
Versus
Pradeep Rameshwar Sharma,
Age 49 years,
th
R/o 6 floor, Bhagwan Bhawan,
J. B. Nagar, Andheri (East),
Mumbai.
… Respondent
(Orig.Accused No.1)
WITH
CRIMINAL APPEAL NO.854 OF 2013
Ramprasad Vishwanath Gupta,
Age 38 years, Occ: Advocate, R/at
87/B/601, Madhukunj CHS,
Opp. Pant Walawalkar High School,
Mother Dairy Road, Nehru Nagar,
Kurla (E), Mumbai 400 024. … Appellant/Victim
Versus
1. Pradeep Rameshwar Sharma,
Age 49 years, Occ: Police Inspector,
th
R/at 6 floor, Bhagwan Bhavan,
J. B. Nagar, Andheri (E),
Mumbai 400 067.
… Respondent No.1/
(Original A/No.1)
2. The State of Maharashtra,
(At the instance of S.I.T. through `
Versova Police Station
Vide C.R. No. 246/2009)
… Respondent No. 2
S.Q. Pathan / N.S. Chitnis 11/867
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WITH
CRIMINAL REVISION APPLICATION NO.182 OF 2023
Ramprasad Vishwanath Gupta,
Age 38 years, Occ: Advocate,
R/at 87/B/601, Madhukunj CHS,
Opp. Pant Walawalkar High School,
Mother Dairy Road, Nehru Nagar,
Kurla (E), Mumbai 400 024 … Appellant/Victim
Versus
1. Tanaji Bhausaheb Desai,
Age 42 years, R.o :- A / 77,
Worli Police Camp, Mumbai-400 025.
2. Ratnakar Gautam Kamble @ Rattu,
Age: 38 years, R/o :- E / 103,
Bandra Police Line, R.K. Patkar Marg,
Bandra(W), Mumbai 400 050.
3. Vinayak Babasaheb Shinde @ Veenu,
Age: 41 years, R/o:-Plot No.2,
Gold Sunit CHS, Kalwa Naka,
Opp. Akash Bar, Kalwa Road,
District – Thane.
4. Pradeep Pandurang Suryawanshi @
Nana, Age:-57 years, R/o :- Ravi
nd
Kiran CHS, 2 Floor, Room No.202,
Opp. Sayali International School,
Gorai Road, Borivali (W), Mumbai.
5. Nitin Gorakhnath Sartape,
Age: 46 years, R/o:- U/14, Hanjur
Nagar, Pump House, Andheri (E),
Mumbai.
S.Q. Pathan / N.S. Chitnis 12/867
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6. Devidas Gangaram Hari Sakpal,
Age: 45 years, R/o :- 48/06,
Worli Police Camp, Mumbai 400 025.
7. Dilip Sitaram Palande, Age: 50 years,
R/o :- 19/604, Sanskruti CHS,
Thakur Complex, Kandivali(E),
Mumbai.
8. Prakash Ganpat Kadam,
Age: 53 years, R/o :- A-26,
Police Quarters, S.V. Road, Kandivali,
Mumbai.
9. Ganesh Ankush Harpude,
Age: 49 years, R/o:- 6/114,
Police Quarters, D.N. Nagar,
Andheri (W), Mumbai.
10.Anand Balaji Patade,
Age: 39 years, R/o :-Miskita House,
First Floor, Bajaj Road,
Vile Parle (W), Mumbai.
11. Pandurang Ganpat Kokam,
Age: 49 years, R/o :-E-2/5,
Mira Gaothan Mandir Road,
Gaodevi Compound, Mira Road,
Thane.
12. Sandip Hemraj Sardar,
Age: 37 years, R/o:- 131,
Building No.4, Aram Nagar,
Police Quarters, Seven Bungalow,
Andheri (W), Mumbai.
S.Q. Pathan / N.S. Chitnis 13/867
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13. The State of Maharashtra
(at the instance of S.I.T. through
Versova Police Station Vide C. R.
No. 246/09).
… Respondents
Mr. Sudeep Pasbola a/w Mr. Ayush Pasbola i/b Mr. Rahul Arote
for appellant in Appeal/1080/2019
Mr. Sanjeev Kadam a/w Ms. Aditi Rajput, Mr. Prashant Raul,
Mr.Pratik Deshmukh & Mr. Mayur Sanap i/b Mr. Jagdish Shetty
for appellant in Appeal/944/2013
Mr. Jagdish Shetty for Appellant No. 8, 10, 12 & 21 in
Appeal/942/2013
Mr. Jagdish Shetty a/w Mr. Mohammed Ayub Shaikh and
Mr. U.S.Vanjara for Appellant No. 5 & 6 in Appeal/943/2013
Ms. Pradnya Talekar a/w Ms.Kalyani Mangave a/w Ms. Madhavi
Ayyappan i/b Talekar & Associates for appellant in
Appeal/151/2021
Mr. C. K. Pendse a/w Ms. Ilsa Shaikh i/b Mr. Shantanu R. Phanse
for appellant in Appeal/707/2019
Mr. Girish Kulkarni, Sr. Adv a/w Mr. Kripashankar Pandey and
Ms. Mrunmayi Kulkarni i/b Mr. Omkar Ghag for Appellant
No.18 in Appeal/1490/2018
Mr. Ashwin Thool a/w Mr. Sarthak Bharsakle, Ms. Archismati
Chandramore and Mr. Sushant Mahadik for the appellant in
Appeal/1239/2019
S.Q. Pathan / N.S. Chitnis 14/867
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Mr. Nagraj Shinde for Appellant in Appeal/86/2021
Mr. Sushil Gaglani a/w Mr. Dipen Furia for appellant in
Appeal/104/2021
Mr. Prakash Shetty a/w Mr. Sarthak Shetty, Mr. Abhishek Singh
and Mr.Dnyanesh Bhatkhande for Appellant in
Appeal/1177/2019
Mr. Manish Mazgaonkar for appellant in Appeal/1488/2018 and
Appeal/1493/2018
Mr. Dilip Sitaram Palande, Appellant No.15 appearing in person
in Appeal/1242/2018
Mr. Waqar Pathan a/w Mr.Ayush Pasbola for appellant in
Appeal/1038/2013
Dr.Yug Mohit Chaudhry a/w Mr. Harshwardhan Akolkar &
Mr.Rohit Vaishya i/b Mr. R.V.Gupta Appellant in
Appeal/854/2013
Mr.R.V.Gupta Applicant in person in Revn/182/2023
Mr. Rajiv Chavan, Sr. Adv / Spl.PP a/w Mr. J.P. Yagnik, Addl.PP,
Mrs. P.P. Shinde, APP, Mr. Gopal Parab, Ms.Priyanka B. Chavan,
Ms. Bhairavi Waradekar and Ms. Priya Mehra for State
Mr. Aabad Ponda, Sr. Adv a/w Mr. Subhash Jadhav,
Mr. Chandansingh Shekhawat and Mr. Dilip Rawat for
Respondent No.1 in Appeal/350/2015 and Appeal/854/2013
S.Q. Pathan / N.S. Chitnis 15/867
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Mr. Sunil Gaonkar , ACP, CSMT Railway, present
Mr. Vinay Ghorpade, Sr.P.I., D.B.Marg Police Station, present
Mr. Manoj Chalke, PI, Kasturba Marg Police Station, present
Mr. Sunil Lokhande, PI, State CID Konkan Bhavan, present
Mr. K.M.Mallikarjuna Prasanna, Spl, IGP, Establishment, present
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
th
RESERVED ON : 8 NOVEMBER 2023
th
PRONOUNCED ON : 19 MARCH 2024
JUDGMENT (Per Revati Mohite Dere, J.) :
1 At the outset, we wish to spell out the names of the
appellants/accused and the acquitted accused as appearing in the
charge-sheet and the trial and would refer to them as original
accused numbers, for the sake of convenience, while deciding all
the appeals. The names of the accused are reproduced herein-
under:
S.Q. Pathan / N.S. Chitnis 16/867
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Ori. Accused
Nos.
Names of Accused
Accused 1 Pradeep Rameshwar Sharma (Police Personnel-Acquitted)
Accused 2 Tanaji Bhausaheb Desai (Police Personnel)
Accused 3 Ratnakar Gautam Kamble @ Rattu (Police Personnel)
Accused 4 Shailendra Dhoopnarayan Pandey @ Pinky (Private
Person)
Accused 5 Hitesh Shantilal Solanki @ Dhabbu (Private Person)
Accused 6 Akhil Shirin Khan @ Bobby (Private Person)
Accused 7 Vinayak Babasaheb Shinde @ Veenu (Police Personnel)
Accused 8 Manoj Mohan Raj @ Mannu (Private Person)
Accused 9 Pradeep Pandurang Suryawanshi @ Nana (Police
Personnel)
Accused 10 Sunil Ramesh Solanki (Private Person)
Accused 11 Nitin Gorakhnath Sartape (Police Personnel)
Accused 12 Mohamed Shaikh @ Mohd. Taka Moiddin Shaikh
(Private Person)
Accused 13 Devidas Gangaram Hari Sakpal (Police Personnel)
Accused 14 Janardan Tukaram Bhanage (Private Person-deceased)
Accused 15 Dilip Sitaram Palande (Police Personnel)
Accused 16 Prakash Ganpat Kadam (Police Personnel)
Accused 17 Ganesh Ankush Harpude (Police Personnel)
Accused 18 Anand Balaji Patade (Police Personnel)
Accused 19 Pandurang Ganpat Kokam (Police Personnel)
Accused 20 Sandip Hemraj Sardar (Police Personnel)
Accused 21 Suresh Manju Shetty (Private Person)
Accused 22 Arvind Arjun Sarvankar (Police Personnel-deceased)
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2 By these appeals, the appellants (original accused Nos.
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2 to 22) have impugned the judgment and order dated 12 July,
2013, passed by the Ad-hoc Additional Sessions Judge, City Civil
& Sessions Court, Greater Bombay, in Sessions Case No.
317/2010 (S.C.Nos. 510/2010, 673/2010, 781/2010) , convicting
and sentencing them as under:
- Original Accused Nos. 2 to 22 have been convicted for
the offence punishable under Section 120B r/w 364 of the IPC
and are sentenced to suffer imprisonment for life and to pay fine
of Rs.5,000/- each, in default, to suffer rigorous imprisonment for
a period of two years;
- Original Accused Nos. 2 to 22 have been convicted for
the offence punishable under Section 120B r/w 365 of the IPC
and are sentenced to suffer rigorous imprisonment for seven years
and to pay fine of Rs.5,000/- each, in default, to suffer rigorous
imprisonment for a period of one year;
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- Original Accused Nos. 2 to 22 have been convicted for
the offence punishable under Section 120B r/w 368 of the IPC
and are sentenced to suffer rigorous imprisonment for seven years
and to pay fine of Rs.5,000/- each, in default, to suffer rigorous
imprisonment for a period of one year;
- Original Accused Nos. 2 to 22 have been convicted for
the offence punishable under Section 120B r/w 302 of the IPC
and are sentenced to suffer imprisonment for life and to pay fine
of Rs.5,000/- each, in default, to suffer rigorous imprisonment for
a period of three years;
- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 143 of the
IPC and are sentenced to suffer rigorous imprisonment for six
months and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for one month;
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- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 144 of the
IPC and are sentenced to suffer rigorous imprisonment for two
years and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for three months;
- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 147 of the
IPC and are sentenced to suffer rigorous imprisonment for two
years and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for three months;
- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 148 of the
IPC and are sentenced to suffer rigorous imprisonment for three
years and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for three months;
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- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 149 r/w 364
of the IPC and are sentenced to suffer imprisonment for life and
to pay fine of Rs.5,000/- each, in default to suffer rigorous
imprisonment for two years;
- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 149 r/w 365
of the IPC and are sentenced to suffer rigorous imprisonment for
seven years and to pay fine of Rs.5,000/- each, in default to suffer
rigorous imprisonment for one year;
- Original Accused Nos.2 to 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 364 r/w 149
of the IPC and are sentenced to suffer imprisonment for life and
to pay fine of Rs.5,000/- each, in default to suffer rigorous
imprisonment for two years;
- Original Accused Nos.2 to 8, 10, 12 and 21 have been
convicted for the offence punishable under Section 365 r/w 149
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of the IPC and are sentenced to suffer rigorous imprisonment for
seven years and to pay fine of Rs.5,000/- each, in default to suffer
rigorous imprisonment for one year;
- Original Accused Nos.9, 11, 13 to 20 and 22 have been
convicted for the offence punishable under Section 364 r/w 109
r/w 120B of the IPC and are sentenced to suffer imprisonment for
life and to pay fine of Rs.5,000/- each, in default to suffer
rigorous imprisonment for two years;
- Original Accused Nos.9, 11, 13 to 20 and 22 have been
convicted for the offence punishable under Section 365 r/w 109
r/w 120B of the IPC and are sentenced to suffer rigorous
imprisonment for seven years and to pay fine of Rs.5,000/- each,
in default to suffer rigorous imprisonment for one year;
- Original Accused Nos.2 to 22 have been convicted for
the offence punishable under Section 368 r/w 109 r/w 120B of
the IPC and are sentenced to suffer rigorous imprisonment for
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seven years and to pay fine of Rs.5,000/- each, in default to suffer
rigorous imprisonment for one year;
- Original Accused Nos.2, 3, 5, 13 and 16 have been
convicted for the offence punishable under Section 344 r/w 34 of
the IPC and are sentenced to suffer rigorous imprisonment for
three years and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for three months;
- Original Accused Nos.4, 6 to 12, 14, 15, 17 to 22 have
been convicted for the offence punishable under Section 344 r/w
109 r/w 120B of the IPC and are sentenced to suffer rigorous
imprisonment for three years and to pay fine of Rs.1,000/- each,
in default to suffer rigorous imprisonment for three months;
- Original Accused Nos.2, 9 and 15 have been convicted
for the offence punishable under Section 302 r/w 34 of the IPC
and are sentenced to suffer imprisonment for life and to pay fine
of Rs.5,000/- each, in default to suffer rigorous imprisonment for
three years;
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- Original Accused Nos.2 to 8, 10 to 14 and 16 to 22 have
been convicted for the offence punishable under Section 302 r/w
109 r/w 120B of the IPC and are sentenced to suffer
imprisonment for life and to pay fine of Rs.5,000/- each, in
default to suffer rigorous imprisonment for three years;
- Original Accused Nos.2, 3, 9, 11, 13, 15 to 20 and 22
have been convicted for the offence punishable under Section 201
r/w 34 of the IPC and are sentenced to suffer rigorous
imprisonment for three years and to pay fine of Rs.1,000/- each,
in default to suffer rigorous imprisonment for three months;
- Original Accused Nos.2 to 8, 10, 12, 14 and 16 have
been convicted for the offence punishable under Section 201 r/w
109 r/w 120B of the IPC and are sentenced to suffer rigorous
imprisonment for three years and to pay fine of Rs.1,000/- each,
in default to suffer rigorous imprisonment for three months;
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- Original Accused No.9 has been convicted for the
offence punishable under Section 201 of the IPC and are
sentenced to suffer rigorous imprisonment for three years and to
pay fine of Rs.1,000/- each, in default to suffer rigorous
imprisonment for three months;
- Original Accused Nos.2 to 8, 10 to 22 have been
convicted for the offence punishable under Section 201 r/w 109
r/w 120B of the IPC and are sentenced to suffer rigorous
imprisonment for three years and to pay fine of Rs.1,000/- each,
in default to suffer rigorous imprisonment for three months;
- Original Accused Nos.20 and 22 have been convicted for
the offence punishable under Section 174(A) of the IPC and are
sentenced to suffer simple imprisonment for three years and to
pay fine of Rs.1,000/- each, in default to suffer simple
imprisonment for three months;
- Original Accused Nos.2, 3, 7, 9, 11, 13, 15 to 20 and 22
have been convicted for the offence punishable under Section 119
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of the IPC and are sentenced to suffer rigorous imprisonment for
three years and to pay fine of Rs.1,000/- each, in default to suffer
rigorous imprisonment for three months.
3 Vide the same judgment and order, Pradeep Sharma
(OA1) was acquitted of all the offences punishable under the
following Sections :
- Sections 120B r/w 364, 365, 368 and 302 of the IPC;
- Section 368 of the IPC;
- Section 364 r/w 109 r/w 120B and 365 r/w 109 r/w 120B
of the IPC;
- Section 368 r/w 109 r/w 120B of the IPC ;
- Section 344 r/w 34 of the IPC;
- Section 302 r/w 34 of the IPC;
- Section 302 r/w 109 r/w 120B of the IPC;
- Section 201 r/w 109 r/w 120B of the IPC;
- Section 119 of the IPC.
4 Against the acquittal of Pradeep Sharma (OA1), the
State of Maharashtra, as well as the complainant-Ramprasad
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Gupta (brother of the deceased) have filed Criminal Appeal No.
350/2015 and Criminal Appeal No. 854/2013 respectively.
Similarly, the complainant-Ramprasad Gupta (brother of the
deceased) has also filed the aforesaid Revision Application, being
Criminal Revision Application No.182/2023, as against 12
appellants/accused, seeking enhancement of their sentence, i.e.
from life to death.
5 Both the said appeals and the Criminal Revision
Application have been tagged alongwith the aforesaid appeals
filed by the appellants/accused against their conviction and as
such, all the appeals/revision are heard together. Considering that
the evidence in all the appeals is the same, all the appeals i.e.
appeals against conviction and the acquittal appeal, are decided
together, as the findings are overlapping.
6 Before we proceed, we may note that during the
pendency of the aforesaid appeals, A14 (Janardan Tukaram
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Bhanage) and OA22 (Arvind Arjun Sarvankar) expired and as
such, the appeals filed by them stands abated, only qua them.
I. BACKGROUND OF THE CASE
7 The prosecution case, in brief, is that Ramnarayan
Vishwanath Gupta @ Lakhanbhaiya @ Pandeyji (hereinafter
referred to as ‘Ramnarayan’ for the sake of brevity) was abducted
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alongwith his friend Anil Bheda on 11 November 2006 at
around 12:30 hrs. by the police in a Qualis; from there, they
were taken to Bhandup; then to D.N. Nagar Police Station; that
from D.N. Nagar Police Station, the police took Ramnarayan
Gupta to Nana Nani Park and threw his dead body there, fired
again and showed that Ramnarayan Gupta was killed in a
genuine encounter, when infact, it was a fake encounter. It is
further the prosecution case, that Anil Bheda was wrongfully
confined by the police and others, so that, he would not spill the
beans regarding their abduction and furnish other details.
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8 Whereas, the case of the appellants/accused, in brief,
is that Ramnarayan Gupta was never abducted and that pursuant
to a tip-off received i.e. secret information, a trap was laid and
that Ramnarayan Gupta was killed, when he fired at the police
party, in retaliation/self defence and as such, it was a genuine
encounter. The prosecution case of abduction of Ramnarayan and
Anil Bheda was completely denied by the appellants/accused.
9 The details of both the versions will be set-out in
greater detail, when we proceed to analyse the evidence on
record.
10 Before we advert to the prosecution and the defence
case in detail as well as the evidence on record, we would like to
place on record the submissions canvassed by the learned counsel
for each of the appellants/accused on the one hand and the
learned Spl.PP for the State and the learned counsel for the
complainant on the other, in the aforesaid appeals.
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II. SUBMISSIONS OF THE APPELLANTS/ACCUSED
A. Submissions of Mr. Pasbola, learned counsel for the
appellant-Vinayak Babasaheb Shinde @ Veenu (OA7)
in Criminal Appeal No.1080/2019:
11 Mr. Pasbola, learned counsel for Vinayak Shinde
(A7) submitted that there are three versions which have come on
record in the said case i.e. police (accused) version; the
prosecution case; and, the case of Aruna Bheda (PW40). He
submitted that infact, the encounter had taken place as stated by
the police i.e. accused and that it was a genuine encounter and
that the police have been falsely implicated in the said case.
According to Mr. Pasbola, the prosecution case as far as the
appellant A7) is concerned, rests on circumstantial evidence and
that too, only in the form of Call Detail Records/Subscriber Detail
Records (CDR/SDR), which, by itself, is not sufficient to point to
the complicity of the appellant in the said case. He further
submitted that there are several
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contradictions/improvements/omissions that have come on record
inter se i.e. in the evidence of Ramprasad Gupta (PW1), Ganesh
Iyer (PW2), Shyamsunder Gupta (PW3), Dheeraj Mehta (PW38),
Aruna Bheda (PW40) and Shankar @ Girish Dalsingh (PW57)
and as such, in light of the same, the prosecution case of
abduction of Ramnarayan and Anil Bheda cannot be accepted. He
further submitted that there is no iota of evidence to show that
Ramnarayan and Anil Bheda were abducted from Sector 9, Vashi
as alleged, inasmuch as, there are no eye-witnesses to the same
and that the evidence relied upon by the prosecution, is based on
hearsay evidence, which is inadmissible. He submitted that the
appellant has been falsely implicated by Special Investigating
Team (SIT) (prosecuting agency). According to Mr. Pasbola, the
witnesses examined to prove CDRs i.e. the Nodal Officers of
various companies, cannot be relied upon, having regard to the
discrepancies that have come in their evidence with respect to
different addresses of the same numbers and the change in the
Base Transceiver Station (BTS) or Cell Towers address. He
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submitted that Section 65B Certificates as mandated in law, have
also not been furnished or produced by the Nodal Officers
examined in this behalf.
11.1 Mr. Pasbola further submitted that as far as Exh.
688-entry made by Sanjay Apage, PN No. 30704 (PW90), is
concerned, the same cannot be relied upon, as it appears to be
fabricated and that the said entry by itself, is not sufficient to infer
that the appellant (A7) was using the mobile number attributed
to him, at the relevant time. He further submitted that there is no
evidence to show that Avinash Shinde is the brother of the
appellant, in whose name the mobile stood, inasmuch as, no
question under Section 313 of the Code of Criminal Procedure
(Cr.PC) has been put to the said witness. He further submitted
that as far as CDR evidence is concerned, the learned Judge has
put a composite question pertaining to all Exhibits, exhibited by
the witnesses to all the accused and as such, the same will have to
be excluded from consideration under Section 313 Cr.PC Thus,
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according to Mr. Pasbola, from the circumstances brought on
record, as far as the appellant is concerned, it is difficult to draw
an irresistible conclusion as against the appellant, vis-a-vis, his
involvement in the commission of the crime and as such, he be
acquitted of all the offences for which he has been convicted.
B. Submissions of Mr. Sanjeev Kadam, learned counsel for the
appellant – Shailendra Dhoopnarayan Pandey @ Pinky (OA4)
in Criminal Appeal No. 944/2013:
12 Mr. Sanjeev Kadam, learned counsel appearing for the
aforesaid appellant submitted that although the appellant has
been convicted for the charge under Section 302 of IPC i.e. for
the death of Ramnarayan, there is no material whatsoever to
connect the appellant with the alleged fake encounter. He further
submitted that to prove conspiracy with respect to abduction of
Ramnarayan and Anil Bheda, the prosecution relied on the
evidence of PW38-Dheeraj Mehta; PW40-Aruna Bheda; PW54-
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Changdeo Godse (Nodal Officer, Vodafone); PW64-Sunil Sawant
(Nodal Officer); PW84-Satish Rane (Special Metropolitan
Magistrate, who conducted the Test Identification Parade);
PW88-Mohammad Usman Shaikh, an employee of a mobile shop,
on whose name a sim card was obtained and handed over by
PW96-Mehamood Shaikh (mobile shop owner) to the appellant-
Shailendra; and PW96-Mehamood Shaikh (mobile shop owner)
who was declared hostile, since he did not support the
prosecution case. He submitted that the evidence of none of the
witnesses i.e. PW1-Ramprasad Gupta; PW2-Ganesh Iyer or PW3-
Shyamsunder Gupta can be relied upon, inasmuch as, the same is
contradictory, inter se, inconsistent and contrary to the evidence
of PW40-Aruna Bheda, with respect to abduction. He further
submitted that the appellant is not a police officer nor allegedly
had any motive to kill Ramnarayan. He submitted that although
the appellant is alleged to be an informer of the police, the
prosecution has not produced any material in support thereof.
He further submitted that the prosecution case rests entirely on
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circumstantial evidence and that the hearsay evidence of the
witnesses, with respect to abduction, cannot be relied upon, being
inadmissible. He submitted that the prosecution is relying on
CDRs of the appellant to show that the appellant was in touch
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with the other co-accused on the date of the incident i.e. 11
November 2006, and that, that by itself is not sufficient to point
to the complicity of the appellant. He further submitted that
none of the witnesses have either identified the appellant in the
test identification parade held nor in the Court. According to Mr.
Kadam, the test identification parade itself suffers from several
infirmities and lacunae, inasmuch as, the photograph of the
appellant was published in the newspapers. Learned counsel
relied on Exh. 782 i.e. the DNA Newspaper, which had published
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the photograph of the appellant on 12 January 2010, whereas,
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the test identification parade was held on 20 January 2010. He
submitted that PW40-Aruna Bheda has not identified the
appellant and it was Anil Bheda (now deceased), who had
identified A4-Shailendra, however, in view of the demise of Anil
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Bheda and for the reasons set-out herein-above, the test
identification parade cannot be relied upon. He further
submitted that no reliance can be placed even on the evidence of
PW88-Mohammad Usman Shaikh, an employee of a mobile shop
of which PW96-Mehamood Shaikh is the owner, inasmuch as,
PW96-Mehamood Shaikh has not supported the prosecution case
i.e. that the sim card was purchased in the name of PW88-
Mohammad Usman Shaikh and was handed over by PW96-
Mehamood Shaikh to the appellant. He further submitted that
the evidence of PW88-Mohammad Usman Shaikh shows that the
card was allegedly purchased on his name, by using his documents
in the year 2007 (mobile sim No. XXXXXX6311), whereas, the
incident is of November 2006.
12.1 Learned counsel further submitted that the
prosecution had examined PW103-Amit Patel to link the
appellant with Janardan Bhanage (A14), vis-a-vis motive,
however, the said witness was declared hostile. He submitted that
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suggestions were also made to this witness in his cross-
examination, that he was an informer of Pradeep Sharma (OA1)
and that Janardan Bhanage (A14) had disclosed to him about
bumping off, of Ramnarayan (deceased) and that he was close to
Janardan Bhanage (A14), however, the said suggestions have been
denied by the said witness. Learned counsel further relied on the
evidence of PW65-Yogesh Shreekrushna Rajapurkar (Nodal
Officer, Vodafone), to show the discrepancy between Exhibits
571 and 575. He submitted that the evidence of the said witness
is not trustworthy in view of the evidence that has come on
record with respect to locations. According to him, the
annexures to Exhibits 571 and 575 are signed by the signatory
only on the letterhead and not on the annexures, and as such, the
annexures which pertain to the CDRs, cannot be relied upon.
12.2 According to Mr. Kadam, the evidence of the Nodal
Officers examined by the prosecution, in particular, the evidence
of PW62-Rakeshchandra Prajapati (Nodal Officer of Loop
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Mobile), shows that the co-accused Hitesh Solanki (A5) had
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called Shailendra Pandey (A4) twice on 11 November 2006 i.e.
at 16:30 hrs. and 17:07 hrs. He submitted that timings as stated
aforesaid do not match with the time when the alleged abduction
took place. He submitted that even otherwise, it is the
prosecution case that accused No.5’s phone was being used by
Pradeep Sharma (OA1). He further submitted that the
prosecution has failed to prove that Shailendra Pandey (A4) was
part of the second incident i.e. the incident of encounter which
took place at Nana Nani Park.
12.3 Mr. Kadam further submitted that the same set of
questions were put to all the accused in their 313 statements and
that no specific question which was incriminating as against the
th
appellant was put to him that he was at Vashi on 11 November
2006 at 16:30 hrs. and 17:07 hrs. He further submitted that
although two sim cards were allegedly used by Shailendra Pandey
(A4), one standing in his own name and one given to him post the
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incident, no CDR has been collected with respect to the said sim
cards, post the incident.
12.4 In conclusion, Mr. Kadam submitted that the trial
Court has erred in observing that Shailendra Pandey (A4) was
physically present at Nana Nani Park, Andheri, though he was
not present at the said spot. Mr. Kadam relied on two judgments
1
of the Apex Court in Shankar v. State of Maharashtra vis-a-vis
motive in a case of circumstantial evidence and Ravindra Singh v.
2
State of Punjab , vis-a-vis requirement of 65B Certificate, in
support of his submission.
12.5 He further submitted that considering that there is no
evidence to connect the appellant-Shailendra Pandey (A4) to the
abduction or to the subsequent elimination of Ramnarayan, and
considering the fact, that the appellant had no motive nor any
role was attributed to him, the appellant be acquitted of the
offences for which he has been convicted.
1 2023 SCC OnLine SC 268
2 (2022) 7 SCC 581
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C. Submissions of Mr. Jagdish Shetty, learned counsel for
the appellants - Manoj Mohan Raj @ Mannu (A8); Sunil
Solanki (A10); Mohammed Shaikh @ Takka (A12) and Suresh
Shetty (A21) in Criminal Appeal No.942/2013:
13 Learned counsel appearing for appellants-Manoj @
Mannu (A8), Sunil Solanki (A10), Mohammed Shaikh @ Takka
(A12) and Suresh Shetty (A21) submitted that all the said
appellants are private persons, who have been prosecuted
alongwith the police officers for the abduction of Ramnarayan
and Anil Bheda; wrongful confinement of Anil Bheda; and, for
the death of Ramnarayan. He submitted that the only evidence as
against the said appellants was the evidence of Anil Bheda, with
respect to abduction, however, in view of Anil Bheda’s demise,
there is no other witness who speaks about the complicity of the
said appellants, in the abduction of Ramnarayan and Anil Bheda.
He further submitted that there are no CDRs of the said persons
collected by the prosecution.
S.Q. Pathan / N.S. Chitnis 40/867
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13.1 As far as the evidence of Parmanand Desai (PW14) is
concerned, learned counsel for the appellants submitted that the
evidence of this witness will reveal that Sunil Solanki (A10) was
working as a sweeper in the Mumbai Municipal Corporation;
th
that on 9 November 2006, he had taken half-day leave; that on
th th
10 November 2006, a weekly-off and on 11 November 2006,
casual leave and that the same, by itself cannot be said to be
incriminating.
13.2 As far as Sujit Mhatre (PW16) is concerned, Mr.
Shetty submitted that the said witness has not supported the
prosecution case entirely. He submitted that his evidence is silent
with respect to Sunil Solanki (A10), taking Qualis from him, for
his personal use in November 2006. He further submitted that
the evidence of the panch i.e. Maruti Naikade (PW13) with
respect to the seizure of the Qualis vehicle in March, 2010,
allegedly used in the abduction, suffers from several infirmities,
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inasmuch as, there is discrepancy between the chassis and engine
number, as reflected in Exh. 182 (panchnama) and Exh. 183 (the
verification report). He submitted that hence, there is no clarity
with respect to the description of the vehicle so seized. He
further submitted that the prosecution had examined Sundar
Tendulkar (PW9), who had purchased the vehicle from Sujit
Mhatre (PW16) and who had later sold the same to Mrugesh
Negandhi (PW10). He submitted that the evidence of these
witnesses do not show as to when Sujit Mhatre (PW16) was in
possession of the alleged Qualis vehicle, which was used in the
commission of the abduction. He submitted that neither is the
evidence of Mrugesh Negandhi (PW10) relevant, inasmuch as, the
said witness had purchased the Qualis used in the commission of
the offence from Sundar Tendulkar (PW9). According to Mr.
Shetty, the prosecution ought to have examined Ashok Shah from
whom Sujit Mhatre (PW16) had allegedly purchased the Qualis
vehicle. Learned counsel for the appellants submitted that
although the RTO Officer i.e. Sandesh Chavan (PW48) was
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examined to show the ownership of the vehicle, the document
which is at Exh. 359 would only show that in 2006, Ashok Shah
st
was the owner of the vehicle and that in 2007 i.e. on 21
February 2007, Sujit Mhatre (PW16) was the owner. He
submitted that the said evidence of Sandesh Chavan (PW48)
contradicts the evidence of Sujit Mhatre (PW16), who has stated
that he was in possession of the Qualis vehicle of Ashok Shah in
2006 itself, and that he had given the said Qualis vehicle (used in
abduction) and another Qualis vehicle to the accused in
November 2006.
13.3 According to the learned counsel for the appellants,
the Special Executive Magistrate-Satish Rane was examined as
PW84, for proving the test identification parade held by him,
however, his evidence would only show that Anil Bheda
(deceased) had identified Manoj @ Mannu (A8) and Sunil Solanki
rd
(A10) on 23 March 2010 (Exh. 643) and had identified
th
Mohamed Shaikh @ Mohd. Taka (A12) on 28 June 2010 (Exh.
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645). He submitted that since Anil Bheda, before his evidence
could be recorded, had died, in the absence of any substantive
evidence, the identification by Anil Bheda, of these accused
cannot be relied upon.
13.4 As far as Mohammad Usman Shaikh (PW88) is
concerned, learned counsel for the appellants submitted that the
said witness had turned hostile. He submitted that the
prosecution, even otherwise, had examined this witness to
establish/show the connection between Shailendra Pandey @
Pinky (A4) and Mohamed Shaikh @ Mohd. Taka (A12), post the
incident i.e. in 2007. He submitted that even the identification of
Mohamed Shaikh @ Mohd. Taka (A12) by Amit Jambotkar
(PW8), cannot be said to be incriminating.
13.5 Mr. Shetty submitted that PW110- K.M.M. Prasanna,
in his cross-examination, had stated that psychological tests were
conducted on Ramprasad Gupta (PW1) and three other witnesses
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i.e. PW2-Ganesh Iyer, Anil Bheda and PW40-Aruna Bheda,
however, the results were inconclusive and hence, the evidence of
these witnesses, including that of PW40-Aruna Bheda cannot be
relied upon.
13.6 Mr. Shetty submitted that the learned trial Judge has
convicted Manoj @ Mannu (A8), Sunil Solanki (A10),
Mohammed Shaikh @ Takka (A12) and Suresh Shetty (A21) ,
only on the basis of the progress reports submitted by
K.M.M.Prasanna (PW110), there being no other material to
connect the appellants with the alleged crime.
13.7 In conclusion, he submitted that the evidence on
record is not sufficient to point to the complicity of the appellants
in the offence, inasmuch as, the circumstances on record that, the
vehicle used in the commission of the offence i.e. for abduction,
has not been identified; that the prosecution has not proved who
was present in the vehicle at the relevant time; and that there are
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no CDRs to show the presence of the appellants at the time of
abduction of Ramnarayan and Anil Bheda. He submitted that in
this view of the matter, the appellants be acquitted of the offences
for which they have been convicted.
D. Submissions of Mr. Jagdish Shetty, learned counsel for the
appellants - Hitesh Solanki @ Dhabbu (A5) and Akhil Khan @
Bobby (A6) in Criminal Appeal No.943/2020:
14 Mr. Shetty, learned counsel for Hitesh Solanki @
Dhabbu (A5) and Akhil Khan @ Bobby (A6) submitted that the
prosecution has failed to prove that PSI Ghorpade (PW108) had
visited Thane Central Jain, pursuant to an order passed by the
Court granting him permission to obtain the specimen
handwriting of Hitesh Solanki @ Dhabbu (A5), having regard to
the admission of this witness in his cross-examination i.e. there is
no record as to when PSI Ghorpade visited the jail.
S.Q. Pathan / N.S. Chitnis 46/867
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14.1 Learned counsel further submitted that the evidence
of Ravsaheb Ikke (PW76) cannot be relied upon, inasmuch as, his
statement under Section 161 was not recorded by SIT, during
investigation. He submitted that hence, having regard to the
same, the Station Diary entry i.e. Exh. 620 and 620-A produced
th
by the said witness dated 28 September 2010 at 19:40 hrs.
stating therein, that he received a telephonic call from PSI
Ghorpade, that Hitesh Solanki @ Dhabbu (A5) had refused to
give his specimen handwriting, cannot be relied upon.
14.2 Mr. Shetty, learned counsel for the aforesaid
appellants (A5 and A6), submitted that to prove wrongful
confinement of Anil Bheda, the prosecution examined Sumant
Bhosale (PW32); Milind More (PW55); Naresh Phalke (PW45);
Madan More (PW43); and Aruna Bheda (PW40), however, their
evidence does not inspire confidence.
S.Q. Pathan / N.S. Chitnis 47/867
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14.3 As far as Sumant Bhosale (PW32) is concerned,
learned counsel for the appellants submitted that the said witness
has not identified either Hitesh Solanki @ Dhabbu (A5) or others.
He submitted that as far as Milind More (PW55) is concerned,
the said witness has stated in his evidence, that he was knowing
Hitesh Solanki @ Dhabbu (A5), as Hitesh, who was working for
Pradeep Sharma (OA1) and nothing more than that. He
submitted that the said witness has not stated that Hitesh Solanki
@ Dhabbu (A5) was present with them in the Qualis when he
went to Bhatwadi at Ghatkopar, as well as to Mid-town Hotel,
Andheri.
14.4 As far as Akhil Khan @ Bobby (A6) is concerned,
there is no mention of him, by the said witnesses.
14.5 As far as Naresh Phalke (PW45) is concerned, learned
counsel submitted that the said witness has neither identified nor
spoken about the appellants i.e. Hitesh Solanki @ Dhabbu (A5)
S.Q. Pathan / N.S. Chitnis 48/867
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and Akhil Khan @ Bobby (A6).
14.6 As far as Vishwajit Chavan (PW53) is concerned,
learned counsel for the appellants submitted that the said witness
has only stated that Hitesh Solanki @ Dhabbu (A5), was working
for Pradeep Sharma (OA1) and that Hitesh was with Anil Bheda
(deceased) in Mid-town hotel, Andheri. Mr. Shetty submitted
that although the said witness has stated that at the behest of
Pradeep Suryawanshi @ Nana (A9), he went to Mid-town Hotel
st th th
on three dates i.e. on 1 February, 4 February and 19 March
2010, however, despite the requirement of making notings in
station diary, when leaving, there is no station diary entry of the
same.
14.7 Mr. Shetty further submitted that although Aruna
Bheda (PW40) has identified Hitesh @ Dhabbu (A5), as having
taken her and Anil Bheda to Kolhapur, however, thereafter, the
prosecution has not proved that Hitesh @ Dhabbu (A5) had
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accompanied Anil Bheda. He submitted that the hotel in which
Aruna Bheda (PW40) and her husband-Anil Bheda were kept in
Kolhapur, has not been disclosed by her in her statement before
the SIT, nor have the room numbers been disclosed. He further
submitted that the prosecution has not brought on record the
hotel register where Aruna Bheda (PW40) and her husband - Anil
Bheda were allegedly confined by Hitesh @ Dhabbu (A5) in a
Hotel in Kolhapur. He further submitted that neither the
Manager nor any employee of the hotel in Kolhapur, where
Aruna Bheda (PW40), her husband-Anil Bheda and Hitesh @
Dhabbu (A5) stayed, have been examined and as such, there is no
material to show that Hitesh @ Dhabbu (A5) had taken Aruna
Bheda (PW40) and Anil Bheda to Kolhapur and confined them.
He further submitted that there are several discrepancies in the
evidence of Aruna Bheda (PW40) with respect to when she was
taken to Kolhapur by Hitesh @ Dhabbu (A5). According to Mr.
Shetty, it is alleged by the prosecution that Hitesh @ Dhabbu (A5)
had given Aruna Bheda (PW40), a prepared affidavit (Exh. 335)
S.Q. Pathan / N.S. Chitnis 50/867
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to be presented before the Magistrate in the 176 inquiry,
however, except for the say of Aruna Bheda (PW40), there is no
other material to show that the said affidavit was prepared by
Hitesh @ Dhabbu (A5). It is further submitted that thus, the
prosecution has failed to prove that Aruna Bheda (PW40) and her
husband-Anil Bheda were wrongfully confined in Kolhapur by
Hitesh @ Dhabbu (A5). He further submitted that the same
would be evident from the cross-examination of Aruna Bheda
(PW40), that she did not disclose the said fact i.e. of her being
taken by Hitesh @ Dhabbu (A5) against her will and wishes,
despite having several opportunities to disclose the same.
14.8 As far as Jayesh Kesariya (PW50) is concerned,
learned counsel for the appellants submitted that there is an
omission with respect to the presence of Hitesh @ Dhabbu (A5)
at the Collector’s Office when Anil Bheda and Aruna Bheda
(PW40) had gone for recording their statements before the
Special Land Acquisition Officer (SLAO) and as such, the
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evidence of Jayesh Kesariya (PW50), does not further the
prosecution case.
14.9 As far as Ajendrasingh Thakur (PW87), Senior PI
attached to D.N. Nagar Police Station is concerned, learned
counsel submitted that all that the said witness has stated is that
Hitesh @ Dhabbu (A5) and Akhil Khan @ Bobby (A6) used to
come to Pradeep Sharma’s (OA1) office at D.N. Nagar Police
Station and that he had seen Hitesh @ Dhabbu (A5) and Akhil
Khan @ Bobby (A6) sitting there with Pradeep Sharma (OA1).
He submitted that the said evidence cannot be stated to be
incriminating as against Hitesh @ Dhabbu (A5) and Akhil Khan
@ Bobby (A6).
14.10 It is further submitted that the prosecution had
examined Geetanjali Datar (PW68), to show that Geetanjali Datar
(PW68) had made three calls on a mobile number i.e.
XXXXXX2987 standing in Hitesh @ Dhabbu’s (A5) name, but
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was purportedly being used by Pradeep Sharma (OA1) i.e. the two
th
calls on 11 November 2006 (one outgoing and one incoming)
th
and one on 15 November 2006 (outgoing call), however, the
said witness has turned hostile.
14.11 Thus, Mr. Shetty submitted that considering the
aforesaid, i.e. there being no material on record qua the
appellants – Hitesh Solanki @ Dhabbu (A5) and Akhil Khan @
Bobby (A6), they be acquitted of all the offences.
E. Submissions of Ms. Pradnya Talekar, learned counsel for the
appellant-Pradeep Suryawanshi @ Nana (A9) in Criminal
Appeal No. 151/2021:
15 Ms. Talekar, learned counsel for the appellant-
Pradeep Suryawanshi (A9) submitted that the appellant has been
falsely implicated in the present case and that he is incarcerated in
jail for more than 13 years. She submitted that it was a genuine
encounter, which has been painted as a fake encounter, with no
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material whatsoever to support the same. She submitted that in
fact, the evidence and documents on record would clearly show
that the encounter was a genuine encounter. She submitted that
the deceased-Ramnarayan @ Lakhanbhaiya was a member of the
Chhota Rajan gang and had several antecedents and was a wanted
accused in several cases registered against him. According to Ms.
th
Talekar, on 11 November 2006, at about 16:45 hrs, the
appellant received information that Ramnarayan @ Lakhanbhaiya
was going to meet his accomplices at Nana Nani Park, 7
Bungalow at Andheri (W), pursuant to which, he informed his
superiors at about 17:15 hrs i.e. to the ACP of the D.N. Nagar
Division-Arun Awate (PW63); DCP, Zone-IX-Vinaykumar Choube
(PW61) and Addl. C.P., West Region-Bipin Bihari (PW78). It is
the case of the appellant that his seniors ordered him to arrest
Ramnarayan @ Lakhanbhaiya, with the help of officers and
policemen of the Versova Police Station, pursuant to which, at
17:40 hrs, the appellant contacted PI Sonawane of the Versova
Police Station, for help and requested them to send officers to
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D.N. Nagar Police Station i.e. API Sartape (A11), PSI Harpude
(A17) and Police Naik Kokam (A19). She submitted that the said
officers of Versova Police Station reported to the appellant; that
about 18:20 hrs the appellant (A9) called his staff i.e. API
Sarvankar (A22), API Palande (A15) and PSI Patade (A18) to his
cabin. Accordingly, the appellant and the said three officers
collected their weapons and ammunition; and the appellant
briefed all the officers about the information so received. She
submitted that pursuant thereto, the squad reached the spot on
motorcycles and rickshaws at 19:10 hrs; that one squad stood at
the west side of the Nana Nani Park; and the other on the east
side of the Nana Nani Park; that thereafter, an auto-rickshaw
stopped near an electric pole and that Lakhanbhaiya got down
from the said rickshaw; that the secret informant signaled at the
appellant, that the passenger was the wanted accused-
Ramnarayan, pursuant to which, all were alerted about the
arrival of Ramnarayan. She submitted that thereafter, both the
groups moved forward to arrest Ramnarayan, however, on being
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alerted, he pulled out his firearm and pointed at the appellant;
that the appellant warned him not to fire as they were Police
officers and asked him to surrender; that despite being warned,
Ramnarayan fired a round in the direction of the appellant, which
the appellant evaded by ducking; thereafter, API Sarvankar (A22)
also is alleged to have warned Ramnarayan, however, despite the
same, he fired in the direction of API Sarvankar (A22). Ms.
Talekar submitted that in order to save themselves and the
civilians, the police fired five rounds at Ramnarayan i.e. the
appellant fired two rounds; and API Sarvankar (A22), API
Palande (A15) and API Sartape (A11) fired one round each. She
submitted that since Ramnarayan was seriously injured, the police
control room was informed of the same and a wireless van was
requested, to shift Ramnarayan to the hospital. She submitted that
the appellant directed API Sarvankar (A22) and API Sartape
(A11) to accompany Ramnarayan to Cooper hospital. She
submitted that on reaching the hospital i.e. the OPD of Cooper
Hospital at 20:57 hrs, Ramnarayan was declared dead by the
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casualty medical officer at 21:00 hrs Pursuant thereto, the
appellant lodged an FIR with the Versova Police Station, which
was registered vide C.R. No. 302/2006. Ms. Talekar submitted
that during the course of recording of the appellant’s statement
i.e. FIR, the appellant received the news, that Ramnarayan had
expired and as such, the same was incorporated in the FIR.
Thereafter, investigation was carried out by PI Mohandas Sankhe
th
(PW39) upto 15 November 2006.
15.1 In support of her submission that Ramnarayan Gupta
@ Lakhanbhaiya was a wanted criminal, learned counsel Ms.
Talekar relied on the antecedents that have come on record of
Ramnarayan. She submitted that Ramnarayan was a wanted
accused and since a secret information was received of his coming
to Nana Nani Park, it was decided to apprehend him at Nana
Nani Park, where he was to come to meet his accomplices. She
submitted that all the evidence and documents collected would
clearly show that it was a genuine encounter and not a fake
encounter, as alleged by the prosecution. Learned counsel relied
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on the evidence of Dattatray Sankhe (PW31) and Mohandas
Sankhe (PW39) to show that both the officers who investigated,
never thought that the encounter was not a genuine encounter.
Ms. Talekar relied on the order passed by the National Human
Rights Commission (‘NHRC’), New Delhi, on a complaint made
by Ramprasad Gupta (brother of Ramnarayan) to show that the
Commission had relied on an inquiry report of the SLAO and
Magistrate and the observation therein, that the encounter of
Ramnarayan was a genuine encounter and as such, the action of
the police was protected by law.
15.2 Ms. Talekar submitted that if the prosecution case as
suggested that Ramnarayan was done to death, prior to bringing
him to Nana Nani Park was true, blood would not have been
found on the spot. She submitted that not a single witness has
been examined by the prosecution to show that the deceased was
not alive, when he came to Nana Nani Park.
S.Q. Pathan / N.S. Chitnis 58/867
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15.3 Ms. Talekar, learned counsel for the appellant (A9)
further submitted that the fact that the encounter was a genuine
encounter has also been supported by the witnesses examined by
the prosecution i.e. by PW51–Anil More, PW63–Arun Awate,
PW31-Dattatray Sankhe, PW35-Kiran Sonone, PW83-Umesh
Revandkar (Exh.–633) and PW26-Anil Kadam. She submitted
that the evidence of the said witnesses fortifies the appellant's case
of a genuine encounter.
15.4 Ms. Talekar further submitted that the report of the
st
NHRC (Exh. 928-A) dated 1 April 2010 reveals that the
encounter was a genuine encounter. She, thus, submitted that the
documents and the evidence on record will show that the
encounter was a genuine encounter, inasmuch as, the same has
been corroborated by several documents i.e. spot panchnama,
station diary entries, log book of the police van, finding of
railway tickets on the deceased’s person. She submitted that the
blood group of the deceased was Group B and the blood found
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on the spot, was also Group B and as such, the same fortifies the
appellant’s case, that the encounter took place at the spot. She
further submitted that the evidence of some of the witnesses
would reveal that the deceased was alive, whilst being
shifted/carried from Nana Nani Park to Cooper Hospital and as
such, from the documents and evidence on record there was no
reason to doubt that the encounter was not a genuine encounter.
15.5 Ms. Talekar submitted that no sanction under Section
197 Cr.PC was taken, inasmuch as, the appellant, a police officer
was on duty at the time of the incident and that the weapon used
in the alleged crime was a service revolver. Learned counsel
relied on C.R. No.302/2006, registered at the instance of the
appellant (A9) with the Versova Police Station stating therein,
that the deceased had attempted to fire at the police, who were
discharging their official duty, pursuant to which the deceased
was shot. In support of the said submission i.e. the appellant was
on official duty, and as there was a danger to the passersby,
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Ramnarayan was shot at, learned counsel relied on the Duty
Register (Exh. 208A), Entries regarding issuance of service
revolver to the appellant (Exhibits 216A and 221A); FIR
No.302/2006 (Exhibits 278 and 281); entries in the Station
Diary of the Versova Police Station (Exhibits 282A, 285A, 287A,
297A, 301A, 617A); and, the Muddemal Register (Exhibits –
298A, 299A, 300A). Learned counsel, with respect to the said
entries, also relied on the evidence of the witnesses i.e. PW20–
Sanjivan Shinge, PW22–Vishnu Khatal and PW23–Shavaka Tadvi.
She submitted that considering that the appellant was on official
duty and the incident had taken place in exercise of their right to
private defence, sanction under Section 197 of Cr.PC was
essential.
15.6 As far as motive is concerned, learned counsel for the
appellant submitted that the prosecution had failed to establish
motive for the appellant to commit the murder of Ramnarayan.
She submitted that the witnesses examined on the point of motive
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i.e. PW57–Girish Nepali and PW108-Vinayak Ghorpade have
not named the appellant nor have thrown any light vis-a-vis
motive. She submitted that infact, the witnesses who could have
spelt out the motive i.e. Urmish Udhani, Anandibai Deshmukh,
have not been examined by the prosecution, for reasons best
known to them.
15.7 As far as abduction of the deceased and Anil Bheda,
are concerned, learned counsel for the appellant submitted that
there are no eye-witnesses vis-a-vis abduction nor is there any
circumstantial evidence adduced by the prosecution to show that
the appellant was in anyway involved in the abduction of the
deceased and Anil. She submitted that the prosecution examined
PW1–Ramprasad Gupta, PW3- Shyamsunder Gupta PW38-
Dheeraj Mehta, PW40–Aruna Anil Bheda and PW57-Shankar @
Girish Dalsingh to prove abduction, however, none of the said
witnesses have attributed any role to the appellant, much less,
named him. She submitted that a perusal of the evidence of the
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said witnesses will reveal contradictions in their version and as
such, it is evident that the prosecution had failed to prove
abduction of the deceased and Anil Bheda.
15.8 As far as the incident of firing on the deceased at
Nana Nani Park is concerned, learned counsel for the appellant
submitted that the prosecution had failed to adduce any
evidence/material to indicate that the deceased was killed at some
other place i.e. before being taken to Nana Nani Park. She
further submitted that there is no material to indicate the
presence of the appellant at any place other than Nana Nani Park
at the relevant time. She submitted that the CDR of the
appellant shows his presence at the Nana Nani Park and as such
supports the case of a genuine encounter.
15.9 She further submitted that the evidence on record, to
the contrary, supports the defence case of a genuine encounter.
Learned counsel also relied on the evidence of DW1–Manohar
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Kulpe, examined by the appellant. According to the learned
counsel for the appellant, the prosecution had failed to
substantiate its case i.e. of throwing the body of the deceased near
Nana Nani Park, so as to stage the encounter.
15.10 She further submitted that the SIT constituted
pursuant to the order of this Court, had deliberately not
examined the material witnesses, which could have shown that
the encounter was a genuine encounter.
15.11 As far as the alleged confinement of Anil Bheda is
concerned, learned counsel for the appellant submitted that the
prosecution has failed to produce any evidence that Anil Bheda
was 'confined' or restrained. In this connection, learned counsel
relied on the evidence of 4 witnesses examined by the prosecution
i.e. PW32–Sumant Bhosale, PW43–Madan More, PW45-Naresh
Chalke, PW55-Milind More. She submitted that the evidence of
the said witnesses does not reveal that Anil Bheda was wrongfully
S.Q. Pathan / N.S. Chitnis 64/867
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confined. She further submitted that there are serious
flaws/contradictions in the evidence of the said witnesses inter se.
15.12 According to Ms. Talekar, there are several flaws in
the prosecution case and that a few circumstances here and there,
would not connect the appellant with the alleged offences. She
submitted that the witnesses examined by the prosecution were
either pressurized or were called upon to submit a report in
favour of the prosecution. She further submitted that there are no
records/entries in any diary made by the investigating officers of
SIT, whilst investigating the case, casting a doubt on the
credibility of the investigation.
15.13 Learned counsel for the appellant further submitted
that although lie detector test was conducted pursuant to an order
passed by this Court, on PW1 – Ramprasad Gupta, PW2- Ganesh
R Iyer, Anil Bheda, Aruna Bheda at the FSL, Kalina, the said
test reports were not produced by the SIT, despite the test results
S.Q. Pathan / N.S. Chitnis 65/867
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being inconclusive.
15.14 Learned counsel for the appellant further submitted
that the important witnesses have not been examined by the
prosecution i.e. Rambabu Lodh (an eye-witness with respect to
firing on the deceased at Nana Nani Park); Nilesh (eye witness to
abduction), Shekhar Sharma, Vinayak Raundal (photographer
who clicked photographs of the spot of encounter at Nana Nani
Park), the News Reporter of Aaj Tak, who telecasted the coverage
of news of the encounter, Urmish Udhani (builder), Anandibai
and Janaya Seth for motive, Ramrajpal Singh (eye-witness), and
Subhash (informer).
15.15 As far as ballistic experts’ report is concerned, Ms.
Talekar submitted that the said report does not inspire
confidence, inasmuch as, the ballistic expert i.e. PW86 – Gautam
Ghadge has given two contradictory ballistic reports. She further
submitted that the hand wash of the deceased was taken but no
S.Q. Pathan / N.S. Chitnis 66/867
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controlled samples were taken to show that the encounter was
not a genuine encounter.
15.16 As far as CDRs are concerned, Ms. Talekar submitted
that the requisite certificate under Section 65B of the Evidence
Act was not produced and as such in the absence of the said
certificate, the oral evidence was inadmissible. She submitted that
even otherwise, the CDRs does not show that the appellant (A9)
was present at the time of abduction, other than at Nana Nani
Park.
15.17 Ms. Talekar relied on several judgments of the Apex
Court to show that an act done in the exercise of right of private
defence was protected; that motive was a necessity in a case of
circumstantial evidence, and that the same was not proved by the
prosecution; that certificates under Section 65B of the Evidence
Act, despite being mandatory, were not produced; certain
incriminating questions under 313 Cr.PC were not put; and, that
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prior sanction under Section 197 Cr.PC was not taken. She also
questioned the evidence of the expert witness and the evidentiary
value of the Expert’s evidence.
F. Submissions of Mr. Pendse, learned counsel for appellant-
Nitin Sartape (A11) in Criminal Appeal No.
707/2019:
16 Mr. Pendse, learned counsel for the appellant – Nitin
Sartape (A11) submitted that the prosecution has neither proved
the presence of the appellant at the spot when the encounter took
place nor has proved that it was the appellant who fired at the
deceased, though alleged by the prosecution. He submitted that
the appellant was at the police station at the relevant time and
had gone to the spot, post the incident of firing, to Nana Nani
Park. In support of the said submission, learned counsel for the
appellant relied on the evidence of PW17–Hanumant Girappa
Kambli from whom the weapon was taken and the evidence of
PW19–Jyotiram Phasale with whom the weapon was deposited
S.Q. Pathan / N.S. Chitnis 68/867
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after the incident. According to Mr. Pendse, the entries made in
the register by the appellant, of having taken the weapon and
deposited, post the incident and relied upon by the prosecution,
have been concocted and that the appellant disputes the signature
made against the said entry i.e. Exh. 197. He submitted that the
prosecution has not brought on record any contemporaneous
record to show that PW17–Hanumant and PW19–Jyotiram were
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on duty on the said day i.e. on 11 November 2006 and were in-
charge of the disbursement of the arms / depositing of the arms.
16.1 Mr. Pendse, further submitted that the timings
mentioned in the said entries appear to have been inserted
subsequently. According to the learned counsel for the appellant,
the evidence of PW26–Anil Kadam, the driver of Mobile Van-1
attached to Versova Police Station, will reveal that on receiving a
wireless message at 20:18 hrs, he reached the Nana Nani Park at
20:28 hrs and thereafter left for Cooper Hospital alongwith the
appellant (A11) and Arvind Arjun Sarvankar (A22) and reached
S.Q. Pathan / N.S. Chitnis 69/867
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Cooper Hospital at about 20:57 hrs. He submitted that if the
said timings were taken into consideration, it would be evident
that the entry made in the Arms Register with respect to
depositing of the arm / fire weapon by the appellant at 22:00 hrs,
appears to be doubtful and as such the said entry cannot be relied
upon.
16.2 Mr. Pendse further submitted that even the evidence
of PW60–Maruti Patil, who was attached to the Magazine Section
at Naigaon Armory Depot, would reveal that there is an
overwriting on one of the pages and in addition, at Exh. 497. He
submitted that the entry made by Maruti Patil is relevant,
considering his evidence that if the ammunition is less, the
weapon is not allowed to be deposited. He submitted that what
was deposited were 30 bullets and that the said number 30 has
been scored off and in its place 29 was written. He further
submitted that therefore, the procedure adopted by PW60–
Maruti for taking weapon/ammunition, is consistent with the
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appellant's case that he had not been to Nana Nani Park at the
time of the incident and as such had not fired at the deceased. He,
therefore, submitted that the prosecution had failed to prove that
the appellant (A11) fired at the deceased. He further submitted
that even the ballistic report does not support the prosecution
case, inasmuch as, the report shows that the bullet which was
found at the spot allegedly fired from the appellant's revolver, did
not match his revolver but matched with the revolver used by
Tanaji Desai (A2).
16.3 As far as abduction of the deceased and Anil Bheda
and confinement of Anil Bheda, are concerned, he submitted that
there are no allegations vis-a-vis the appellant. According to Mr.
Pendse, the station diary entry of D.N. Nagar Police Station,
relied upon by the prosecution, would have only corroborative
value and in the absence of any substantive evidence being led,
reliance cannot be placed on the said station diary entry.
S.Q. Pathan / N.S. Chitnis 71/867
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G. Submissions of Mr. Girish Kulkarni, learned Senior
Counsel, for the appellant-Ganesh Ankush Harpude
(A17) in Criminal Appeal No. 1490/2018:
17 Mr. Girish Kulkarni, learned senior counsel for the
appellant–Ganesh Harpude (A17) submitted that the appellant
was admittedly not present at the time of abduction nor are there
any allegations of wrongful confinement of Anil Bheda, qua the
appellant. He submitted that the evidence on record would only
show that the appellant was seen at the spot, post the incident
that took place at Nana Nani Park. In support of the same,
learned senior counsel relied on the evidence of PW26–Anil
Kadam, who was attached to Versova Police Station and was
working on Mobile Wireless Van No.1 at the relevant time; the
evidence of PW51-Anil More, Police Constable attached to
Versova Police Station; the evidence of PW77–Mahendra Tatkare,
attached to Versova Police Station and who was on Mobile-II of
Versova Police Station, at the relevant time; the evidence of
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PW81–Pramod Shreedhar Sawant, Wireless Operator to “Peter
Mobile” attached to Versova Police Station; and the evidence of
PW83–Umesh Yashwant Revandkar, Head Constable attached to
the Detection Branch. He submitted that the evidence of the said
witnesses will show that the appellant (A17) was seen at the spot,
post the incident alongwith PW39- PI Mohandas Narayan
Sankhe and other officers. He submitted that the witnesses have
stated that the appellant was collecting the soil mixed with blood
from the spot, at the relevant time and that he had asked PW51–
Anil More to collect the blood sample and cartridge which was
lying at the spot. He submitted that except the appellant being
present, there is no material to show that the appellant was part
of the team that had gone from D.N. Nagar Police Station
alongwith A9-Pradeep Suryawanshi, pursuant to the secret
information received by A9, that a member of the Chhota Rajan
Gang was going to come to the spot to meet his accomplice.
17.1 Mr. Kulkarni submitted that prior to the date of the
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incident, the appellant was on leave for about 2 to 5 days. In
support of the same, learned senior counsel relied on the Station
Diary Entry i.e. Exh.–720A (page 5495). Mr. Kulkarni submitted
that according to the charge, the appellant is only alleged to have
abetted the commission of the offence of Section 302 of the IPC,
th
when infact, the 15 charge is only qua accused Nos.1, 2, 9 and
15, for the offence punishable under Section 302 r/w 34 of the
IPC.
17.2 Mr. Kulkarni further submitted that if the CDR of the
appellant would have been collected by the prosecution, the
same would have revealed that the appellant was present at the
beat, at a nearby area and the same could have been considered as
a contemporaneous document and would have then disproved the
prosecution case, that the appellant was at Nana Nani Park. He
submitted that even the evidence of PW108- Vinay Baburao
Ghorpade would show that the appellant had not carried any
weapon with him. Learned counsel relied on the admission of
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PW110-K.M.M. Prasanna in para 360 of his evidence, that the
appellant (A17) had not carried any weapon with him and that
the said admission was made after perusing the weapon register
and entries therein. Learned counsel submitted that as per charge
15, which is qua accused Nos.1, 2, 9 and 15, OA1-Pradeep
Sharma has been acquitted from the same and as such the
prosecution case, then becomes suspect. Learned counsel relied
on the judgment of the Apex Court in the case of Aghnoo
3
Nagesia v/s State of Bihar that a confession made by accused is
not admissible qua co-accused i.e. alleged confession by A9 in the
FIR i.e. C.R. No.302/2006, that it was a genuine encounter.
H. Submissions of Mr. Nagraj Shinde, learned counsel for the
appellant-Sandip Hemraj Sardar (A20) in Criminal Appeal
No. 86/2021:
18 Mr. Nagraj Shinde, learned counsel for the appellant–
3 AIR 1966 SC 119
S.Q. Pathan / N.S. Chitnis 75/867
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Sandip Hemraj Sardar (A20), a police constable attached to D.N.
Nagar Police Station at the relevant time, submitted that the
prosecution has not proved its case against the appellant. He
submitted that the evidence of PW20–Sanjivan Bhimrao Shinge,
In-charge Head Constable attached to D.N. Nagar Police Station,
reveals that it was his (PW20) duty to maintain duty register and
that the appellant was assigned with the duty of passport
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verification on 11 November 2006. He submitted that the same
is corroborated by duty register entry, which is at Exh. 208A. Mr.
Shinde further submitted that the evidence of PW87-Ajendrasingh
Thakur, Senior P.I., attached to D.N. Nagar Police Station, would
show that the station diary entries at Exhibits 669 and 670,
would reveal the persons (accused), who had gone for the
operation and of their return from the said spot i.e. Nana Nani
Park. He submitted that the name of the appellant is absent in
both the entries. He submitted that apart from the FIR registered
at the behest of A9–Pradeep Pandurang Suryawanshi @ Nana i.e.
C.R. No.302/2006, there is no material to connect the appellant
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with the alleged crime, inasmuch as, there is no corresponding
entry as stated above in Exhibits 669 and 670. He submitted that
apart from the aforesaid, there is no other role attributed to the
appellant to show that he was present at the spot i.e. Nana Nani
Park, at the time of the alleged murder and as such, the appellant
cannot be convicted on the basis of the said evidence.
I. Submissions of Mr. Ashwin Thool, learned counsel for the
appellant - Anand Balaji Patade (A18) in Criminal Appeal
No. 1239/2019:
19 Mr. Thool, learned counsel for the appellant –
Anand Balaji Patade (A18) submitted that the prosecution has not
adduced any evidence to show that the appellant had either kept
th
a watch on the deceased on 10 November 2006; or that he was
involved in the abduction of the deceased-Ramnarayan and Anil
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Bheda from Vashi on 11 November 2006; or that the appellant
was present at Bhandup, where allegedly the deceased and Anil
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Bheda were taken at around 13:14 hrs; or at D.N.Nagar Police
Station, where allegedly the deceased and Anil Bheda were
brought at around 14:00/14:30 hrs; or that the appellant was
attached to Pradeep Sharma's squad; or that the appellant was in
anyway concerned with the confinement of Anil Bheda, post the
alleged murder of Ramnarayan.
19.1 Mr. Thool, does not dispute the entries made in the
register to show that the appellant had collected one pistol and 6
bullets from the D.N. Nagar Police Station and its return i.e. the
weapon alongwith 6 bullets. He, however, states that the
appellant had not used either the firearm or the bullets. He
further submitted that although the record shows that the
appellant was part of the team of A9-Pradeep Suryawanshi, the
appellant was not present at the time of the alleged incident and
had come subsequently i.e. post the incident at Nana Nani Park.
He submitted that at the highest, the appellant can be convicted
for destruction of evidence but not for conspiracy. Mr. Thool,
S.Q. Pathan / N.S. Chitnis 78/867
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does not dispute the entries made in the duty register, which is
deposed to by PW20-Sanjivan Bhimrao Shinge i.e. Exh.-208A
and Exh. 209A; nor does he dispute the evidence of PW22-
Vishnu Baburao Khatal, District Hawaldar who was working in
the Arms and Ammunition Division of D.N. Nagar Police Station,
th
with respect to having taken the arms and ammunition on 11
November 2006 at 18:00 hrs; nor does he dispute the evidence of
PW23-Shavaka Saibu Tadvi, also working as a District Hawaldar,
Arms and Ammunition, with D.N. Nagar Police Station, with
respect to the arms and ammunition being returned by the
appellant. According to Mr. Thool, the appellant was not
involved in either the conspiracy as alleged by the prosecution or
in the murder of Ramnarayan. He submitted that the appellant
was only at the wrong place at the wrong time.
19.2 Mr. Thool, further submitted that the evidence of
PW2 – Ganesh R Iyer and PW62-Rakeshchandra Prajapati,
Nodal Officers of BPL Mobile would show that the mobile
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number i.e XXXXXX2362 belonged to Mangesh Sawant and
that the prosecution had failed to bring any evidence on record to
show that the appellant was using the said number. He therefore
submitted that the CDR brought on record by the prosecution to
show that the appellant was in touch with the other accused
cannot be relied upon, since the number belonged to Mangesh
Sawant.
19.3 Mr. Thool, submitted that there was no blood found
on the head of the deceased and only the bullet injury on the
stomach was a fresh injury. In support thereon, the learned
counsel relied on the spot panchnama, to show that there was
only one pool of blood i.e. pool of blood measuring only 1 foot.
He submitted that there should have been atleast 2 pools, one
from the head and another from the bullets sprayed on the
deceased. Hence, he submitted that since there was no blood flow
from the head wound, the same would indicate that the said
wound was caused atleast an hour or more, prior to the actual
S.Q. Pathan / N.S. Chitnis 80/867
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incident. He submitted that the possibility of the incident having
taken place prior, has not been investigated by the prosecution
rd
nor has the prosecution investigated whether any 3 person had
shot the deceased, and the accused only to take the credit, had
shown that the deceased was fired by them in an encounter. He
submitted that therefore, in the absence of evidence, either direct
or circumstantial, the appellant cannot be convicted for the
offence of conspiracy to cause the death of the deceased.
J. Submissions of Mr. Sushil Gaglani, learned counsel for the
appellant-Tanaji Bhausaheb Desai (OA2) in Criminal Appeal
No. 104/2021:
20 Mr. Gaglani, learned counsel for the appellant –
Tanaji Bhausaheb Desai (A2) submitted that there are no eye-
witnesses to the alleged abduction of the deceased-Ramnarayan
and Anil Bheda; their wrongful confinement, and thereafter, in
the alleged murder of Ramnarayan at Nana Nani Park. He
S.Q. Pathan / N.S. Chitnis 81/867
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submitted that it is alleged by the prosecution; (i) That the
th
appellant was keeping a watch on Anil Bheda on 10 November
2006, at his residence i.e. Sector 29, Vashi, Navi Mumbai; (ii) that
the appellant was present at the Bhandup Complex from where
the deceased and Anil Bheda were made to sit in different vehicles
and then taken to D.N. Nagar Police Station; (iii) that the
appellant was a part of the raiding party at Nana Nani Park; and
(iv) that the appellant had also allegedly confined Anil Bheda at
th
Bhatwadi on 12 November 2006. As far as the appellant keeping
th
a watch on Anil Bheda on 10 November 2006 is concerned,
learned counsel for the appellant submitted that there is no
witness with respect to the same. He submitted that it is alleged
by the prosecution that the appellant was keeping a watch on Anil
Bheda's house, as the deceased was staying there, however, the
evidence of PW40–Aruna Bheda, is to the contrary i.e. it shows
that the deceased was not residing with them and that for the first
th
time, she saw the deceased on 11 November 2006. He
submitted that having regard to the same, the question of the
S.Q. Pathan / N.S. Chitnis 82/867
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appellant keeping a watch on Anil Bheda's house does not arise.
20.1 Mr. Gaglani, further submitted that the appellant is
alleged to have been using mobile No. XXXXXX1323 (BPL
Mobile), however, the prosecution has not produced Section 65B
Certificate as mandated and hence, the evidence of PW62-
Rakeshchandra Prajapati cannot be relied upon. He submitted
that even otherwise, if the CDR is stated to be incriminating,
there are no proper questions put to the appellant under Section
313 Cr.PC. In this connection, learned counsel pointed out to the
question i.e. question No.318, to show that a composite question
was asked and not a specific question. He submitted that hence,
the prosecution has failed to prove that the appellant was keeping
a watch on the whereabouts of the deceased and as such on Anil
Bheda's house.
20.2 As far as the second allegation made by the
prosecution is concerned, i.e. that the appellant was present at
S.Q. Pathan / N.S. Chitnis 83/867
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Bhandup Complex, after the deceased and Anil Bheda were
abducted, the prosecution has not adduced any evidence that the
deceased and Anil Bheda were brought to Bhandup Complex, nor
has it been brought on record that the deceased and Anil Bheda
th
were together on 11 November 2006 and that they travelled to
Bhandup Complex and from there to D.N. Nagar Police Station
and thereafter, the deceased was taken to Nana Nani Park. He
submitted that the prosecution has not brought on record any
evidence, with respect to what happened or transpired at
Bhandup and has only relied on CDRs, which by itself is not
sufficient.
20.3 Mr. Gaglani, learned counsel for the appellant further
submitted that there is a discrepancy between the location of
Trisha Collection and also with respect to the existence of Trisha
Collection. He submitted that the e-mail sent by SIT to PW62–
Rakeshchandra Prajapati, shows that the location of the appellant
at Sector 9-A, Vashi was sought, whereas, Trisha Collection is in
S.Q. Pathan / N.S. Chitnis 84/867
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Sector 9. He submitted that Sector 9 and Sector 9-A are different
areas and that the same has been categorically deposed to, by
PW38-Dheeraj Ugamraj Mehta. He submitted that the CDR was
sought of Sector 9-A and not of Sector 9, from where the
abduction took place. According to the learned counsel, Trisha
Collection does not exist and that the prosecution has not
adduced any evidence in support thereof i.e. the owner of Trisha
Collection - Dilip Jain, has not been examined, to show the
existence of the said premises. Learned counsel relied on the
admission of PW110 – K.M.M. Prasanna, in his evidence to show
that the SIT had not collected any document to show the
existence of Trisha Collection and where Trisha Collection was
situated, thus making the prosecution case of abduction, doubtful.
He submitted that it has come in the evidence of PW110 -
K.M.M.Prasanna that the spot was shown by PW1 i.e. the
complainant and not by Anil Bheda, and that Anil Bheda was
reluctant to show the place. He submitted that although it is
alleged by the prosecution that efforts were made to trace Nilesh,
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however, no document was produced in support thereof.
20.4 As far as wrongful confinement is concerned, it is the
prosecution case that after the deceased was killed, Anil Bheda
was confined at 3 places i.e. Bhatwadi, Ghatkopar, Mumbai; at a
hotel in Kolhapur; and at Mid-Town Hotel, Andheri, Mumbai.
He submitted that as far as the appellant is concerned, it is the
prosecution case that the appellant had gone to Bhatwadi and had
wrongfully confined Anil Bheda. He submitted that the evidence
of PW40-Aruna Bheda, who has identified the appellant as being
one of the persons who confined her and Anil Bheda at Bhatwadi
is concerned, her evidence cannot be relied upon, inasmuch as,
she had not made the said disclosure before the SLAO and the
learned Metropolitan Magistrate and had infact, not disclosed the
same to anyone prior to her statement being recorded by SIT on
3rd September 2009. He submitted that PW32-Sumant
Ramchandra Bhosale and PW55-Milind Subhash More, examined
by the prosecution to show that the appellant was guarding the
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house at Bhatwadi where Anil Bheda was living with his wife’s
family cannot be relied upon, inasmuch as, there are no station
diary entries made by the said witnesses, who are police officers,
of having gone to Bhatwadi, Ghatkopar to guard the house at
night and of their return back to the police station. He submitted
that thus, the evidence, at the highest, would show that the
appellant (A2), a police constable was only acting on the orders of
his superior–Pradeep Suryawanshi (A9) and had accompanied
PW32-Sumant and PW55-Milind i.e. for guarding the house of
Anil Bheda at Bhatwadi. Thus, according to the learned counsel,
the prosecution had failed to show that the appellant was
guarding Anil Bheda's house and as such had wrongfully confined
him.
20.5 As far as killing of deceased at Nana Nani Park is
concerned, Mr. Gaglani submitted that one empty bullet was
found on the spot at Nana Nani park, however, there is a
discrepancy in the description of the empty as mentioned in the
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spot panchnama; the letter sent to FSL, and the CA report and as
such the ballistic expert's report cannot be relied upon to show
that the bullet was fired from the appellant's pistol. He submitted
that the evidence on record would show that infact, the appellant
had taken one pistol and 30 rounds from the Magazine Section at
Naigaon Armory Depot and had also returned one pistol and 30
rounds and as such there was not a single bullet which was
missing. In this connection, learned counsel relied on the
evidence of PW80–Pravin Baliram Bhosale and PW60–Maruti Y.
Patil. He submitted that although the prosecution has relied on
PW80–Pravin Bhosale and PW60–Maruti Patil, to show that the
appellant fired at the deceased, the documents on record would
show that there is tampering of the records i.e. manufacturing
year was subsequently incorporated in the documents. He thus
submitted that considering the evidence on record, the opinion
given by the Ballistic Expert (PW86–Gautam Ghadge), that the
empty was fired from the appellant's weapon, cannot be accepted.
He further submitted that the appellant had no motive to cause
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the death of the deceased.
20.6 It is pertinent to note, that although the learned
counsel for the appellant does not deny the FIR lodged by A9; the
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encounter which took place on 11 November 2006 at Nana
Nani Park; and his presence at the spot at the time of the
encounter, his only submission is that he did not fire at the
deceased, as alleged by the prosecution.
K. Submissions of Mr. Prakash Shetty, learned counsel for the
appellant-Devidas Gangaram Hari Sakpal (A13) in Criminal
Appeal No. 117/2019:
21 Mr. Prakash Shetty, learned counsel for the appellant
–Devidas Gangaram Hari Sakpal (A13) submitted that the
prosecution has not proved the complicity of the appellant in the
alleged crime. He submitted that the appellant was attached as a
Police Constable to the D.N. Nagar Police Station, at the relevant
time and was working under the OA1–Pradeep Sharma and A9–
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Pradeep Suryawanshi. He submitted that although the appellant
has been named by A9–Pradeep Suryawanshi in the FIR, as being
part of the team that did the encounter of the deceased, the
appellant came to the spot subsequently, and was not present at
the time when the encounter took place. In support of the said
submission, learned counsel relied on the timings mentioned in
the FIR (Exh.–278) and the proforma to show that the incident
had taken place between 20:11 hrs to 20:13 hrs and that the
police had received information at 20:50 hrs. He submitted that
PW26-Anil Mahadev Kadam, who was on Wireless Mobile Van
on the said day, in his evidence, has stated that he received the
th
message on 11 November 2006 at 20:18 hrs and that he reached
Nana Nani Park at 20:28 hrs and saw the injured at the spot and
that he also saw two policemen i.e. Nitin Sartape (A11) and
Arvind Arjun Sarvankar (A22) at the spot. He submitted that the
appellant was not seen at the spot and if the CDRs of the
appellant are seen, it is evident that the appellant was not present
at the timings mentioned in the FIR at the spot and was infact, at
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JW Marriott, at the relevant time. Learned counsel relied on the
evidence and the documents produced by PW62 - Rakeshchandra
Prajapati, Nodal Officer of Loop Mobile. He submitted that the
mobile number of the appellant was XXXXXX7293. He
submitted that CDR records will falsify the prosecution case, that
the appellant was present at the spot as mentioned in the FIR i.e.
between 20:11 hrs to 20:13 hrs when the encounter took place.
He submitted that the CDR will show that the appellant was at
Nana Nani park only at 20:34 hrs i.e. post the incident. He
further submitted that although the appellant has been named in
the FIR, the station diary entry i.e. Exh.–669 and return station
diary entry i.e. Exh.–670, do not bear the appellant's name as
being part of the raiding party. He submitted that the appellant is
being prosecuted only because he was attached to OA1–Pradeep
Sharma and A9–Pradeep Suryawanshi, without there being any
material to support the appellant's presence at the spot, at the
relevant time.
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21.1 As far as confinement of Anil Bheda is concerned, he
submitted that the only allegation as against the appellant is that
after a few days of the encounter, the appellant had visited
Midtown Hotel and was guarding the room in which Anil Bheda
was staying. He submitted that the witnesses examined by the
prosecution i.e. PW45-Naresh Phalke and PW55-Milind More,
cannot be believed, inasmuch as, both the said witnesses have
categorically stated that they had not made any entry in the
station diary of having gone to Mid-Town Hotel or of their return
from the said hotel. He submitted that both the said witnesses
although had guarded the hotel where Anil Bheda was staying,
only the appellant has been made an accused.
L. Submissions of Mr. Manish Mazgaonkar, learned counsel
for Prakash Ganpat Kadam (A16) in Criminal Appeal No.
1493/2018:
22 Mr. Manish Mazgaonkar, learned counsel for the
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appellant submitted that the appellant at the relevant time, was a
Head Constable attached to the D.N. Nagar Police Station. He
submitted that there is no evidence, either direct or
circumstantial, to connect the appellant with the alleged offences.
He submitted that though charge was framed under Section 149
of the IPC, the appellant has not been convicted for the same
with other co-accused. He submitted that the only reason for
roping the appellant in the present case, is the disclosure of the
appellant’s name in the FIR lodged by the A9-Pradeep
Suryawanshi @ Nana i.e. in C.R. No. 302/2006, registered with
the Versova Police Station and the averments made in the
petitions before this Court and the Apex Court with respect to
the said FIR i.e. C.R. No. 302/2006. He submitted that since the
case as set out by the accused that it was a genuine encounter was
rejected by the trial Court, no reliance could have been placed on
the said FIR, in which the appellant has been named. He
submitted that Pradeep Sharma (OA1) was acquitted and as such
the appellant also be acquitted.
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22.1 Mr. Mazgaonkar further submitted that the
prosecution had failed to collect the CDRs of the appellant, as
collected of the other accused and as such adverse inference be
drawn against the prosecution, since no CDR has been produced
to show that the appellant was present at the spot, as alleged. He
submitted that the Thane Ammaldar has not been examined by
the prosecution, who was responsible for making the station diary
entries as per Police Manual in respect of the movement of the
appellant from Versova Police Station to D.N. Nagar Police
Station and from D.N. Nagar Police Station to Nana Nani Park.
He further submitted that none of the police officers, who were
examined by the prosecution, have produced their personal
diaries with respect to how the matter was investigated, inasmuch
as, maintaining police diary was compulsory for the police
officers. He submitted that in the event, the presence of the
appellant is proved at the spot, it can only be inferred that the
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appellant was present at the spot, pursuant to the orders of his
seniors and as such had acted in discharge of his official duty and
thus, sanction to prosecute under Section 197 Cr.PC was
necessary. He submitted that even the answers given to the
questions put to the appellant under Section 313 Cr.PC have
been ignored by the trial Court.
22.2 Mr. Mazgaonkar, learned counsel for the appellant
submitted that the appellant was a Police Naik attached to the
Versova Police Station at the relevant time. He submitted that the
evidence of PW51-Anil More wherein he has stated that ASI
Devkate told them that he himself and Police Naik-Kokam (A19)
will do the duty of patrolling in the police station area, is hearsay
and as such cannot be relied upon. He further relied on the
admission which has come in the evidence of PW110 - K.M.M.
Prasanna, as to whether the appellant and two others were sent
from Versova Police Station to D.N. Nagar Police Station as
additional help. He submitted that like the appellant (Prakash
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Ganpat Kadam) in Criminal Appeal No.1493/2018, the material
as against the appellant relied upon by the prosecution, is finding
of his name in the FIR, i.e. the FIR lodged by A9-Pradeep
Suryawanshi (C.R. No.302/2006) and filing of petitions before
this Court as well as the Apex Court, relying on the FIR. He
submitted that there is no other evidence to show that the
appellant was involved in the abduction/confinement of Anil
Bheda and in the encounter of Ramnarayan. He submitted that in
the alternative, if it is proved that the appellant was at the spot, it
was only pursuant to the orders of his seniors and as such it can
only be inferred that the appellant had acted in the discharge of
his official duty.
M. Submissions of Dilip Sitaram Palande (A15), appellant
who appears in-person in Criminal Appeal No.
1242/2018:
23 We heard Mr. Dilip Palande, the appellant who
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appears in-person, through video-conferencing as well as when he
th
was produced before us pursuant to our order dated 14
September 2023, as he was not audible. Mr. Palande submitted
that there is no evidence to connect him with the alleged offence
and that the evidence so collected is manufactured at the behest
of the complainant i.e. PW1-Ramprasad Vishwanath Gupta. He
th
submitted that the encounter which took place on 11 November
2006 was a genuine encounter and that it had taken place as set
out in the FIR lodged by A9–Pradeep Suryawanshi (C.R.
No.302/2006 (Exh. - 121)). According to Mr. Palande, the
evidence on record would show that deceased - Ramnarayan had
several antecedents and that the complainant (brother of the
deceased) had suppressed the deceased’s antecedents from this
Court at the time of the filing of his petition before this Court.
23.1 In this connection, Mr. Palande relied on the evidence
of PW1-Ramnarayan Gupta and PW3-Shyamsunder V Gupta
with respect to the antecedents of the deceased, who was the
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brother of PW1-Ramnarayan and PW3-Shyamsunder Gupta. He
submitted that the deceased was a wanted criminal and was
associated with the Chhota Rajan Gang and that on receipt of the
information, it was decided to go to the spot and apprehend him,
however, as the deceased refused to surrender and retaliated, the
police were constrained to shoot him. He submitted that the
evidence on record would show that the deceased was absconding
and wanted in many cases and as such the police on receipt of the
information decided to apprehend him.
23.2 Mr. Palande submitted that PW1-Ramnarayan Gupta
was close to the deceased as admitted by him and hence PW1 -
Ramnarayan Gupta had lodged a false complaint against the
police, to take revenge of his brother’s death.
23.3 Mr. Palande further submitted that PW38-Dheeraj
Mehta, is not an eye-witness to the alleged abduction of the
deceased and Anil Bheda by the police. He submitted that Nilesh,
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an alleged eye-witness to the abduction was not examined by the
prosecution for reasons best known. He pointed out the
discrepancies in the evidence of PW38-Dheeraj Mehta, PW57-
Shankar @ Girish Dalsingh, PW1-Ramnarayan Gupta and
PW40-Aruna Anil Bheda. He submitted that the evidence of
PW57–Shankar @ Girish would show that PW38-Dheeraj Mehta
had called him and informed that some ‘Gavwale’ had picked up
the deceased and Anil Bheda and accordingly he had informed
the same to PW1-Ramnarayan Gupta. He further submitted that
PW1-Ramnarayan Gupta in the petition filed by him in this Court
had not stated that he was informed by Shankar @ Girish
(PW57).
23.4 Mr. Palande further submitted that in the alleged
letters/fax/communications made to various authorities by PW1-
Ramnarayan Gupta, there is no date, time and place to show from
where the deceased and Anil Bheda were picked up from. Mr.
Palande when questioned by us, does not dispute the
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faxes/telegrams being sent, however, he submits that the contents
therein are vague. He further submitted that the prosecution had
failed to collect the data with respect to an alleged call made
between PW1-Ramnarayan Gupta and PW38-Dheeraj Ugamraj
th
Mehta on 11 November 2006 nor had collected the CDR
records of another mobile (Airtel) belonging to PW3-
Shyamsunder Gupta.
23.5 Mr. Palande submitted that PW38-Dheeraj Mehta in
th
his first statement recorded on 27 August 2009 and in his 161
th
statement recorded on 4 September 2009 had denied any
knowledge of abduction or of informing about the same to any
authority. He submitted that in view of the said two statements,
st
the statement recorded of PW38–Dheeraj Mehta on 1 February
2010, after 5 months by SIT, wherein, he disclosed about
abduction of the deceased and Anil Bheda, becomes suspicious.
He submitted that the prosecution has not even collected any
material to show what was the motive for the police to either
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abduct the deceased or to kill him, inasmuch as, the prosecution
has not examined or recorded the statement of Anandibai
Deshmukh, on account of whose property there was a dispute
between the deceased and A14-Janardan Tukaram Bhanage (now
expired). He submitted that no documents were even collected
by SIT to prove that there was any dispute with respect to the
property as alleged. He submitted that in the absence of motive,
the prosecution case would fall, since the prosecution case rests
on circumstantial evidence. He further submitted that it is not the
prosecution case that the appellant was involved in the abduction,
nor is there any evidence of abduction by him. He submitted that
the encounter was a genuine encounter and the same is evident
from the fact that two railway tickets were found on the person
of the deceased, when the inquest panchnama was drawn.
23.6 Mr. Palande further submitted that SIT has not
proved that there was a shop `Trisha Collection’ and that Nilesh
and PW38-Dheeraj Mehta were doing business from the said
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shop. He submitted that in this connection, the owner of Trisha
Collection, Mr. Dilip Jain has not been examined by the
prosecution, that there were only 3 shops, i.e. Trisha, Vaishnavi
th
Cosmetics and Trisha Collection and that there was no 4 shop.
He submitted that it is the complainant i.e. PW1 - Ramnarayan
Gupta who showed Trisha Collection to the officers of SIT and
that Anil Bheda, who was allegedly abducted from there, had
not shown the said shop.
23.7 Mr. Palande relied on the NHRC Report (Exh. – 146)
to show that it was a genuine encounter. According to Mr.
Palande, the conduct of the witnesses examined by the
prosecution would belie the prosecution case i.e. PW1 -
Ramnarayan Gupta was sending telegrams in the name of Aruna
Anil Bheda (PW40), though Aruna Bheda had not granted
permission to do so. He submitted that there was no plausible
reason that has come on record to show why PW1 -
Ramnarayan Gupta did not sent the telegrams / faxes in his name.
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He submitted that the evidence of PW40–Aruna Bheda as well
as her conduct vis-a-vis abduction and wrongful confinement is
doubtful and as such appears to be an after-thought. He
submitted that PW40 – Aruna Bheda had changed her statements
before several authorities and as such implicit reliance cannot be
placed on her evidence. He submitted that only later-on SIT
pressurizing Anil Bheda and Aruna Bheda and PW38-Dheeraj
Ugamraj Mehta that their statements came to be recorded. He
submitted that SIT has fabricated the statements of witnesses and
the documents. He submitted that the statements of Anil Bheda
and Aruna Bheda could not have been recorded by PW110-
K.M.M. Prasanna on 3rd September 2009, since that day, was a
day of Anant Chaturdashi and PW110-K.M.M. Prasanna, being
the DCP of Zone IX could not have spent 2 to 3 hours at Powai
for recording their statements. He, therefore, submitted that no
statement of Jayesh Kanji Kesariya, Anil Bheda and Aruna Bheda,
as alleged by the prosecution were recorded by PW110-K.M.M.
rd
Prasanna on 3 September 2009. He submitted that even
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otherwise there are discrepancies in their statements. He
submitted that even the 164 statements of Anil Bheda were
th th
recorded on 30 December 2009 and that of Aruna Bheda on 5
January 2010, belatedly, after more than 4 to 5 months, of
recording of their 161 statements.
23.8 Mr. Palande further submitted that even the statement
of PW50 - Jayesh Kanji Kesariya was recorded belatedly.
23.9 Mr. Palande submitted that faxes/telegrams were sent
by PW1–Ramprasad Gupta, in the name of Aruna Bheda without
any justification and as such the explanation offered by PW1–
Ramprasad Gupta, that he felt shy of sending the same in his
name, cannot be accepted.
23.10 Mr. Palande further submitted that despite receiving
information of abduction of Anil Bheda, PW40-Aruna Bheda
lodged a missing complaint i.e. her husband-Anil Bheda was
missing, and not an FIR of abduction. He submitted that if really
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Anil Bheda and Ramnarayan, as disclosed by PW38-Dheeraj
Mehta and PW1–Ramprasad Gupta were abducted, there was no
reason for PW40-Aruna Bheda not to lodge a complaint of
abduction with the police. He further submitted that if really
Anil Bheda and Ramnarayan were abducted, PW40 - Aruna
Bheda as well as PW38-Dheeraj Mehta would have sprung into
action, since PW40 - Aruna Bheda was the wife of Anil Bheda and
PW38 - Dheeraj Mehta, a friend of Anil Bheda. According to Mr.
Palande, PW1 –Ramprasad Gupta sent false faxes and telegram
messages in the name of PW40 - Aruna Bheda, only with the
intent to create evidence, when infact, there was nothing to show
that Anil Bheda and Ramnarayan, were abducted.
23.11 Mr. Palande further submitted that Nilesh has not
been examined by the prosecution and that there are a lot of
infirmities with respect to the existence of Nilesh and that the
possibility of Nilesh being a fictitious person cannot be ruled out,
having regard to the evidence that has come on record. He
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submitted that even SIT took no efforts to trace Nilesh, who
allegedly saw the abduction. According to Mr. Palande, there
are also several discrepancies in the Cell ID and the tower
locations vis-a-vis, the tower locations where Anil Bheda stayed
and Trisha Collection, where the incident of abduction allegedly
took place.
23.12 Mr. Palande also relied on the progress report to
show that the investigation was carried out not according to
what was disclosed by Aruna and Anil Bheda but according to
PW1–Ramprasad Gupta (complainant) i.e. brother of the
deceased. He submitted that it is evident from the record, that
the statement of PW38-Dheeraj Ugamraj Mehta was recorded on
th
4 September 2009 only after Anil Bheda and Aruna Bheda’s
rd
statements were recorded by SIT on 3 September 2009. He
submitted that the statements of PW38-Dheeraj Ugamraj Mehta
(made to SIT, recorded under Section 161 and 164 Cr.PC.), do
not inspire confidence having regard to his earlier statements.
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23.13 Mr. Palande further submitted that since the
encounter which took place was an act committed in the course
of their official duty, it was incumbent for the prosecution to seek
sanction under Section 197. Mr. Palande relied on the following
judgments in support of his submissions:
4
Smt. Vandana Vikas Waghmare v. State of Maharashtra & Ors. ;
5
Vidhya Singh v. State of Madhya Pradesh ; Sankaran Moitra v.
6
Sadhna Das & Anr. ; Om Prakash & Ors. v. State of Jharkhand
7
through the Secretary, Department of Home, Ranchi & Anr. ; P.
K. Pradhan v. State of Sikkim, Represented by Central Bureau of
8 9
Investigation ; Matajog Dobey v. H. C. Bhari ; Darshan Singh v.
10
State of Punjab & Anr. ; and Raj Kumar Singh alias Raju alias
11
Batya v. State of Rajasthan .
4 1998 CRI. L. J. 4295
5 (1971) 3 SCC 244
6 (2006) 4 SCC 584
7 (2012) 12 SCC 72
8 (2001) 6 SCC 704
9 1955 SCC OnLine SC 44
10 (2010) 2 SCC 333
11 (2013) 5 SCC 722
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23.14 Mr. Palande also relied on the circular issued by the
nd
Government of Maharashtra dated 22 December 2006.
23.15 According to Mr. Palande, the evidence on record, in
particular, the evidence of PW107–Manoj Laxman Chalke,
PW31-Dattatray Ganpat Sankhe, PW39-Mohandas Narayan
Sankhe, PW35–Kiran Tukaram Sonone, PW63–Arun Vasantrao
Awate and PW61–Vinaykumar Keshavprasad Chaube, would
show that the said officers did not doubt the genuineness of the
encounter. He submitted that even the report of the NHRC
would show that the encounter was a genuine encounter.
23.16 Mr. Palande submitted that the ballistic expert i.e.
PW86 - Gautam Natha Ghadge had given his report at the
instance of SIT and that the evidence that has come on record, to
suggest that the firing was done at a short distance, does not
inspire confidence. He submitted that the investigation carried
out by the SIT was biased and false. According to Mr. Palande,
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the prosecution had failed to examine the material witnesses i.e.
Lefty (informer), Dilip Jain (owner of Trisha Collection), Mr.
Ashok Shah (owner of Qualis Vehicle), and Mr. Vijay Jadhav
(panch to the inquest panchnama); the photographer who took
photographs of the spot; and the person who drew the map, and
as such, adverse inference ought to be drawn, for non-
examination of these witnesses.
23.17 Mr. Palande submitted that the circumstances relied
upon, have not been proved by the prosecution beyond
reasonable doubt nor have certain incriminating questions been
put to him under Section 313 Cr.PC i.e. on CDRs. He submitted
that even the CDRs cannot be relied upon, for want of Section
65B Certificate and several discrepancies therein.
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N. Submissions of Mr. Waqar Pathan, learned counsel for the
appellant-Ratnakar Gautam Kamble @ Rattu (A3) in
Criminal Appeal No.1038/2013:
24 Mr. Waqar Pathan, learned counsel for the appellant
submitted that the appellant does not dispute the fact, that he
was part of the team (Group–2), when the encounter took place
th
on 11 November 2006. Learned counsel submitted that the
encounter was a genuine encounter and was not a fake or staged
encounter, as alleged. He submitted that admittedly, the
appellant is not alleged to have fired at the deceased or even
carried any weapon to the spot.
24.1 Mr. Pathan further submitted that admittedly the
appellant was not present at the time of the alleged abduction,
even according to the prosecution. He submitted that it is the
prosecution case, that the appellant alongwith others had
wrongfully confined Anil Bheda at Bhatwadi, Ghatkopar and at
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Mid-town Hotel, Andheri. He submitted that the appellant has
denied the allegation of wrongful confinement. He submitted
that there is no documentary evidence except the oral testimony
to suggest that the appellant ever visited either Bhatwadi or Mid-
Town Hotel i.e. there are no corresponding station diary entries
of the same.
24.2 Mr. Pathan submitted that with respect to wrongful
confinement of Anil Bheda, the prosecution examined three
witnesses i.e. PW43-Madan Tanaji More, PW45-Naresh Namdeo
Phalke and PW55-Milind Subhash More, however, the evidence
of all the three witnesses, is contrary to each other and as such
does not inspire confidence and hence cannot be relied upon.
According to Mr. Pathan, the prosecution has failed to prove that
the appellant was a member of the squad of Pradeep Sharma
(OA1) or infact, that a squad of Pradeep Sharma existed. He
submitted that the appellant was on deputation from Juhu Police
Station (July 2006) to D.N. Nagar Police Station and that the
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appellant was working for D.N. Nagar Police Station and not for
Pradeep Sharma, as alleged by the prosecution. He submitted
that since the encounter was a genuine encounter, the prosecution
had failed to obtain sanction as mandated by law under Section
197 Cr.PC, since the act committed by them was in the course of
their official duty.
24.3 Learned counsel also assailed the CDR relied upon by
the prosecution. He submitted that in the absence of Section 65B
Certificate, the evidence with respect to the same, cannot be
relied upon.
III. Submissions of Mr. Rajiv Chavan, learned Special Public
Prosecutor (Spl.PP) for the Respondent-State in all Appeals
preferred by the Appellants/Accused:
25 Mr. Chavan, learned Spl.PP appearing for the
respondent-State of Maharashtra, submits that the prosecution
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case rests entirely on circumstantial evidence and that the
prosecution has proved all the circumstances relied upon by them,
by leading cogent, legal and admissible evidence. He submitted
that whilst appreciating the evidence, the Court would have to
bear in mind the fact that the investigation in the case started
after three years, in 2009, of an incident which had taken place in
2006, only after the High Court directed registration of an FIR,
and hence, by then, crucial witnesses were missing. He
submitted that infact, during the pendency of the case, just before
the prime and star witness of the case-Anil Bheda could be
examined, he was done to death. He submitted that the prime
witness-Anil Bheda was a witness to the abduction of Ramnarayan
and himself; of being taken to Bhandup Complex; and then in
separate cars by the police to D.N. Nagar Police Station; and
thereafter, his own confinement, post the encounter of
Ramnarayan (deceased).
25.1 According to Mr. Chavan, the case in question, is,
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not just one of abduction, confinement and cold blooded murder,
but a grave case in which, officers of the law enforcement agency,
custodians of law and order, had conspired, created and
fabricated false records to substantiate their claim, that
Ramnarayan died in a genuine encounter. He submitted that it is
a case in which pressure tactics were used so that no witness
would come forward to give any statement/depose. He submitted
that the case involves not only police personnel/ officers but even
some civilians, who were members of the squad led by Pradeep
Sharma (OA1). He submitted that all of them conspired to kill
Ramnarayan for an ulterior motive and made the encounter look
like a genuine encounter. He submitted that the telegrams/faxes
sent by PW1- Ramprasad Gupta to various authorities would
show that Ramnarayan and Anil Bheda were abducted and that
there was a likelihood of Ramnarayan being killed in an
encounter. He submitted that the prosecution has proved
through the evidence of witnesses, the telegrams/faxes sent by the
complainant (PW1-Ramprasad Gupta) to various authorities.
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25.2 Mr. Chavan further submitted that pursuant to the
order passed by the High Court, magisterial inquiry was
conducted under Section 176(1-A) of Cr.P.C and that the report
of the Magistrate clearly revealed that the police officers had
abducted the deceased, taken him to some unknown place, killed
him by firing bullets at him, and then showed that the encounter
had taken place at the Nana Nani Park. Mr. Chavan further
submitted that pursuant to the High Court order, SIT was
constituted and C.R. No. 246/2009 came to be registered with
the Versova Police Station. He submitted that the accused being
police officers, exerted immense pressure and gave threats to the
witnesses during the course of investigation, in order to ensure
that they do not give any statement against them and that the
evidence of the witnesses examined in connection with the same,
is a testimony of the same.
25.3 With respect to the murder of Ramnarayan, Mr.
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Chavan submitted that false documents were created by the
accused, to cover up the fake encounter and cold-blooded murder
th
of the deceased. He submitted that the incident of 11
November 2006 was meticulously planned and executed to
perfection and that the police had grossly misused their power
and position to fabricate and even destroy evidence and to
pressurize and intimidate crucial witnesses. He, therefore,
submitted that the prosecution case will have to be appreciated,
keeping in mind that there is a gap of three years in commencing
with the investigation with respect to abduction, fake encounter,
and of confinement, coupled with the pressure tactics and fear
psychosis exerted by the accused on witnesses to dither them
from coming forward to give evidence. He submitted that the
th
charges in the said case came to be framed on 8 March 2011 and
Anil Bheda was summoned to depose in the said case on 16
March 2011, and that prior to recording of his evidence, Anil
Bheda, a star witness, was abducted and murdered in a gruesome
th
manner on 13 March 2011 i.e. his body was found charred to
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death.
25.4 Mr. Chavan submitted that there is a chain of events
brought on record by the prosecution i.e. right from keeping a
th
vigil on the house of Anil Bheda on 10 November 2006 and
th
again on 11 November 2006; abduction of Ramnarayan and
th
Anil Bheda on 11 November 2006 from Sector 9A, Vashi;
bringing them to Bhandup Complex from there; taking the two,
to D.N. Nagar Police Station, in separate vehicles; and thereafter,
taking Ramnarayan to Nana Nani Park, Andheri, Mumbai, and
showing that he was killed in a genuine encounter, and thereafter,
confining Anil Bheda for a month, so that, he would not spill the
beans. He submitted that the same cannot be said to be a mere
co-incidence but is a part of a larger conspiracy executed by the
officers by meticulous planning.
25.5 Mr. Chavan submitted that C.R. No. 302/2006 was
registered at the behest of A9, only to cover up the encounter.
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He submitted that the document on record will show that before
the registration of the FIR, ADR was registered i.e. ADR 55/2006
with the Versova Police Station. He submitted that on the basis of
the ADR, the body was forwarded to J.J. Hospital for post-
mortem examination. He submitted that the FIR registered i.e.
C.R. No. 302/2006 has been accepted and relied upon by A2, A3,
A9 and A15, as being genuine, in support of their defence i.e. that
it was a genuine encounter. He submitted that although there
were ten cases registered against the deceased, the said cases were
prior to 2000 and that, none of these cases were registered in the
entire West Region, Mumbai, which includes D.N. Nagar Police
Station and Versova Police Station. He submitted that although
A9-Pradeep Suryawanshi has stated in his FIR that he had
informed his superiors and that the superiors had deputed three
officers from Versova Police Station to D.N. Nagar Police Station
to carry out the secret operation, the evidence on record, is to the
contrary. Mr. Chavan relied on the evidence of PW63-Arun
Awate, the ACP of the area, to show that he was not aware of the
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encounter or that any officer was going to nab an accused; the
evidence of PW61-Vinaykumar Chaube, DCP, Zone-IX, to show
that he was not aware of any operation; and the evidence of
PW78-Bipin Bihari, Additional Commissioner of Police (`Addl.
CP’), West Region, that he had not given any directions or
instructions as alleged by Pradeep Suryawanshi (A9). He
submitted that it is thus evident, that none of the three superior
officers had any information, nor had given any instructions as
alleged by A9. He submitted that infact, no suggestions have
been made to any of the said three witnesses suggesting to the
contrary i.e. that they were aware or that they had given
permission to nab the deceased, prior to the incident. He
submitted that even the entry in the Station Diary i.e. Exh. 897, is
significant. He submitted that the said entry has been denied by
PW39-PI Sankhe, which entry shows that the officers had left for
D.N. Nagar Police Station on a secret mission. He submitted that
no attempt was made to cross-examine PW78-Bipin Bihari, vis-a-
vis the said entry. According to Mr. Chavan, the said entry is a
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false entry, made with the sole intent to build a story of a secret
operation to be conducted. He submitted that although Pradeep
Suryawanshi (A9) had claimed in his FIR, that a meeting was held
in his cabin at 18:20 hrs, pursuant to the secret information
received, the same is not supported by the CDRs of Pradeep
Suryawanshi @ Nana (A9), Dilip Palande (A15) and Ganesh
Harpude (A17). He submitted that infact, Ganesh Harpude (A17)
has denied being present at the D.N. Nagar Police Station, at the
relevant time.
25.6 He further submitted that there are two more false
station diary entries; (i) the first entry at the Versova Police
Station which shows that API Sartape (A11), PSI Harpude (A17)
and PC No. 26645 proceeded to the D.N. Nagar Police Station
for confidential work at 18:05 hrs and (ii) the second entry,
which shows that PI Suryawanshi (A9), API Palande (A15), API
Sarvankar (A22), PSI Patade (A18), API Sartape (A11), PSI
Harpude (A17), PC No. 26645 and the informer proceeded to
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Nana Nani Park at 18:55 hrs. He submitted that the CDRs do
not show that the accused were together, however, the entry is to
the contrary. The author of the said entries is Dilip Palande
(A15). He submitted that the said entries have been brought on
record by PW87-Ajendrasingh Thakur. Mr. Chavan further
submitted that the evidence of PW87-Ajendrasingh Thakur, Sr.PI
attached to D.N. Nagar Police Station, shows that he too was kept
in the dark with respect to the alleged secret operation.
25.7 As far as the spot panchnama of the place where the
alleged encounter took place, is concerned, Mr. Chavan
submitted that according to the accused, the same started at
23:00 hrs and was over at 1:35 hrs. Mr. Chavan submitted that
the spot panchnama alleged to have been prepared at the spot,
was infact a fabricated document. In support of the said
submission, Mr. Chavan relied on the evidence of PW81- Pramod
Sawant, who was attached as a Wireless Operator to Peter Mobile
of Versova Police Station; PW51-Anil More, who was attached to
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Versova Police Station as a police constable; PW77-Mahendra
Tatkare, who was on duty of the mobile–II of Versova Police
Station; who was present at the spot and had collected the articles
from the spot. PW83-Umesh Revandkar, who was attached to the
Detection Branch, Versova Police Station; and the evidence of
PW73-Vilas Kandalgaonkar, Police Constable attached to Versova
Police Station. He submitted that the evidence of PW51-Anil
More is consistent with respect to the presence of PW39-
Mohandas Sankhe, at the spot, when they reached the spot,
between 20:30 hrs and 21:00 hrs i.e. the time when Pradeep
Suryawanshi @ Nana (A9) is alleged to have lodged an FIR,
which FIR was recorded by PW39-Mohandas Sankhe between
20:50 hrs to 21:50 hrs. He submitted that the evidence of
PW81-Pramod Sawant, PW51-Anil More, PW77-Mahendra
Tatkare and PW83-Umesh Revandkar, would show that when
they went to the spot, soon after the incident, collection of
articles was in progress and that PI Sankhe was at the spot. He
further submitted that at around 21:45 hrs, PW77-Mahendra
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Tatkare was present when blood, revolver, soil were collected in
plastic bags. He further submitted that the statement of PW73-
Vilas Kandalgaonkar, Police Constable attached to Versova Police
Station, would show that when he returned at 23:00 hrs from
some other duty, PW39-Mohandas Sankhe called him and asked
him to do, as per the orders of the officers of the Detection
Branch. He submitted that the evidence of PW73-Vilas
Kandalgaonkar, would show that pursuant thereto, he recorded
the spot panchnama at the police station itself, without going to
the spot, at the behest of the officers.
25.8 He submitted that the timings as disclosed by
aforestated witnesses, will show that the spot panchnama was not
done at the spot, as alleged by Pradeep Suryawanshi (A9), nor was
the FIR registered at the time as stated by A9 and that at 22:45
th
hrs on 11 November 2006, Mr. Chavan submitted that the fact,
that nobody was present at the spot, is also fortified by the
evidence of PW1-Ramprasad Gupta and PW2-Ganesh Iyer which
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is further corroborated by the evidence of other witnesses.
25.9 Mr. Chavan submitted that the fact that the encounter
was a fake encounter and not a genuine encounter is also fortified
by the following circumstances :
(i) The finger print expert’s report.
(ii) The report of the ballistic expert i.e. of PW86-
Gautam Ghadge, which shows inconclusive results in the absence
of control samples, taken of the deceased (both hands).
He submitted that the finger print expert’s report as
well as the ballistic expert’s report would clearly show, that a
revolver was planted by the police on the deceased.
(iii) The spot panchnama allegedly prepared at the spot, is
contrary to the evidence on record, in particular, the evidence of
PW73-Vilas Kandalgaonkar.
(iv) That the evidence on record shows that what was
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collected from the spot was collected in plastic bags, but what was
forwarded to the FSL was in bottles and as such, the
appellants/accused manipulated the record.
(v) That even railway tickets were planted by the accused
to show that the deceased was not in their custody at the relevant
time. In this context, Mr. Chavan, learned Special P.P. relied on
the evidence of PW11-Dr. Sunil Shinde, who was working as a
CMO at the Cooper Hospital; on Exh.-174 i.e. the MLC Register
(Exh.-174), in which there is no mention of tickets (Exh.-285);
and similarly, the Station Diary entry in which there is no
mention of railway tickets being found. He further submitted
that even PW39-Mohandas Sankhe has not spoken about finding
of railway tickets.
25.10 As far the evidence of DW1–Manohar P. Kulpe
is concerned, Mr. Chavan submitted that no reliance could be
placed on his evidence having regard to the contradictions that
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have come in his cross-examination on material aspects, when
confronted by the learned Public Prosecutor.
25.11 Mr. Chavan relied on the ballistic report, map
annexed to the additional affidavit filed by A9–Pradeep
Suryawanshi and admitted by A9 and the spot panchnama to
show that the encounter was a fake encounter and not a genuine
one, as alleged by the defence. He submitted that the evidence of
PW86-Gautam Ghadge and the ballistic report would show that
the hand wash taken from the deceased was inconclusive and as
such the same would belie the theory of the accused that the
deceased had attempted to shoot at them. He further submitted
that the spot panchnama relied upon by the accused and allegedly
prepared by PW39-Mohandas Sankhe would show the distances
between the places where the members of the encounter team
were standing and from where they shot at the deceased. He
submitted that the distance from where the police shot at the
deceased was about 40 feet and across the road, whereas, the
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ballistic expert’s report and the evidence of PW86 – Gautam
Ghadge would show that the firing was done from a distance of
about 2 meters. Mr. Chavan also pointed out the distances from
the map annexed by A9–Pradeep Suryawanshi to the additional
affidavit filed by him in the Writ Petition i.e. Writ Petition No.
th
2473/2006, filed by PW1 on 15 November, 2006, to show that
firing from the said spots as alleged by A9 was impossible.
25.12 Learned Spl.PP relied on the medical
jurisprudence and literature relied upon by PW86-Gautam
Ghadge with respect to firearm shots. According to Mr. Chavan,
taking into consideration the evidence on record, the deceased
could not have been shot from a distance of about 40 feet as
alleged by A9 and some other accused.
25.13 As far as formation and existence of squad is
concerned, Mr. Chavan submitted that the evidence on record
would clearly show that an illegal squad was formed, of which
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Pradeep Sharma (OA1) was the head. He submitted that there is
overwhelming evidence of witnesses to show the formation of
such a squad under Pradeep Sharma (OA1) and that some of the
accused were sent on deputation to work as members of the said
squad. He submitted that although it is alleged that the said
squad was formed by the Addl.CP (West Region), for obvious
reasons, PW78–Bipin Bihari, Addl. CP, has denied the existence of
any special squad or of even having transferred any officers to
the D.N. Nagar Police Station, to work under the said squad. He
submitted that PW78–Bipin Bihari has denied the existence of a
squad since it was not legal to form a squad. He submitted that
although PW78–Bipin Bihari has denied about the existence of a
squad/formation of a squad/deputing members to assist Pradeep
Sharma the head of the squad, there is overwhelming evidence of
other witnesses who state to the contrary. He submitted that the
witnesses who have spoken about the existence of a squad are
PW87–Ajendrasingh Thakur, Senior P.I. attached to D.N. Nagar
Police Station; PW25-Dhiraj Koli, attached to Juhu Police Station
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as PSI, PW72–Manohar Desai, PSI, attached to Versova Police
Station; PW79–Prataprao Baburao Kharate, SHO attached to
D.N. Nagar Police Station; PW82–Samir Faniband, Probationary
Officer, Road Entry, in particular Entry at Exh.–626; PW63–
Arun Vasantrao Awate, ACP, D.N. Nagar Police Station and
PW20-Sanjivan Shinge, In-charge Head Constable at D.N.Nagar
Police Station. He submitted that all the said witnesses have
spoken about the existence of a squad at the behest of a Senior
Officer and that the squad was headed by Pradeep Sharma and
that some of the accused were deputed to work for the said
squad. He submitted that there is no cross-examination of some
witnesses or even suggestion made to some of the witnesses, with
respect to the said evidence, that has come on record, vis-a-vis
existence of a squad under OA1. Mr. Chavan also relied on the
documents/station diary entries/duty register deposed to by the
aforesaid witnesses, with respect to the deputation of some of the
officers, to work as members of the said squad.
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25.14 Mr. Chavan, in support of the formation of the
squad also relied on the evidence of PW32–Sumant Bhosale,
Police Naik, D.N. Nagar Police Station (Detection Branch);
PW43–Madan More; and PW45–Naresh Phalke, Police Constable
attached to D.N. Nagar Police Station and PW55–Milind Subhash
More and PW110-K.M.M.Prasanna. He submitted that none of
these witnesses have been cross-examined with respect to the
formation of the squad and the fact, that A2, A3, A7, A15 and
A16 were deputed as members of the squad and as such, the
prosecution has duly proved the existence of a squad under OA1.
25.15 As far as CDRs are concerned, Mr. Chavan
submitted that the prosecution has duly proved the CDR records
and all documents produced in support thereof. He submitted
that the evidence on record would show that when the documents
were exhibited, no objection was raised by the defence for taking
the said documents on record, in the absence of Section 65B
Certificate. He submitted that the documents having being
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marked as exhibits, without 65B Certificate can be relied upon.
In support of his submission, Mr. Chavan relied on the evidence
of PW54–Changdeo Godse, Nodal Officer, Vodafone to show
that the documents produced by this witness have been duly
proved and that no objection was taken by any of the defence
counsel for exhibiting of the said documents, in the absence of
Section 65B Certificate. He submitted that the officer has duly
stated in his evidence that he had issued the documents in
question and has admitted to the seal and the signatures thereon.
25.16 Mr. Chavan submitted that the prosecution has
proved the CDR/SDR/Cell ID documents/information as sought
for, through the Nodal Officers. Learned Spl.PP relied on the
evidence of PW54–Changdeo Godse, Nodal Officer, Vodafone
India Limited; PW97–Vikas Phulkar, Nodal Officer, Vodafone
India Limited; PW62-Rakeshchandra Prajapati, Nodal Officer,
Loop Mobile India Limited, PW65-Yogesh Rajapurkar, Nodal
Officer, Bharati Airtel, PW69–Mr. Shekhar Palande, Nodal
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Officer, Tata Tele Services Maharashtra Limited, PW85–Divakar
Rao, Nodal Officer, Reliance Communication Limited; and
PW89-Rajesh Gaikwad, Nodal Officer, Reliance Communication
Limited. He submitted that a perusal of the evidence of the said
witnesses would show that no objection was raised for exhibiting
the documents placed on record by the said Nodal Officers. He
submitted that since no objection was taken by the accused, that
the said documents could not be exhibited, for want of Section
65B Certificate, they are precluded from raising any objection
now. Thus, Mr. Chavan submitted that the CDRs and all the
documents have been duly proved by the prosecution through the
said Nodal Officers and as such can be relied upon, having being
exhibited. He further submitted that with respect to only one
document i.e. Exh.–459, PW54–Changdeo Godse has clarified
that the Cell ID location of the said document was incorrect and
that subsequently, the correct Cell ID was submitted i.e. Exh.–
464 and as such, the said ambiguity also stood corrected.
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25.17 Mr. Chavan submitted that all the
information/documents sought for by the Investigating Officer in
the form of CDR/SDR have been exhibited, and that at no stage,
when the CDR/all other documents were exhibited, any objection
was raised by the accused. Mr. Chavan has tendered the details
of the calls made by the accused, their locations to show that the
accused were present at the spot when the alleged incident took
place i.e. at the time of abduction, wrongful confinement and
thereafter, the place where the encounter took place. Mr. Chavan
submitted that the prosecution has also duly proved through the
Nodal Officers that the appellants/accused were infact using the
mobile numbers as alleged by the prosecution.
25.18 To prove the circumstance of `Abduction’, Mr.
Chavan, learned Spl.PP relied on the evidence of six witnesses, in
support of the same i.e. PW38-Dheeraj Mehta; PW57-Shankar @
Girish Dalsingh @ Nepali; PW1-Ramprasad Gupta; PW2-Ganesh
Iyer; PW40-Aruna Bheda and PW3-Shyamsunder Gupta. He
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submitted that the abduction of the deceased and Anil Bheda is
deposed to by the aforesaid witnesses and that there is
corroboration to the said evidence in the form of documents i.e.
faxes and telegrams and CDRs.
25.19 Mr. Chavan submitted that the evidence of
PW38-Dheeraj Mehta would show that he was informed of the
abduction by Nilesh at 12:40 hrs as soon as Ramnarayan and
Bheda were abducted. He submitted that although all the learned
counsel for the appellants submitted that the evidence of PW38-
Dheeraj Mehta would not be admissible with respect to what was
disclosed by Nilesh to him, being hearsay, the said submission is
not legally tenable and as such, misconceived. He submitted that
the evidence of Nilesh would be admissible under Section 6 of the
Evidence Act, under the principle of res gestae. He submitted
that the evidence of PW38-Dheeraj Mehta, would show that the
deceased and Anil Bheda reached his shop Trisha Collection at
Sector 9A, Vashi at about 12:15 hrs; that as there was no place to
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sit in his shop, PW38-Dheeraj Mehta stated that they could wait
outside; that at 12.40 hrs, Nilesh came to his shop and informed
him about the same i.e. that his friend (Anil Bheda) and friend’s
friend (Ramnarayan) were picked up by 5-6 persons in a Qualis
vehicle. Mr. Chavan submitted that the CDRs would show that
Ramnarayan had made his last call at 12:33 hrs which lasted for
two minutes i.e. till 12:35 hrs, after which, both, Anil Bheda and
Ramnarayan’s mobile phones were coming switched-off. He
submitted that the CDR also shows that calls were made by
Vinayak Shinde @ Veenu (A7) (who was at Sector 9A at the
relevant time) to Pradeep Sharma (OA1) (who was at D.N. Nagar
Police Station (mobile standing in the name of Hitesh Solanki @
Dhabbu (A5) and that at 12:39 hrs, a call was made by Shailendra
Pandey @ Pinky (A4) to Lefty (Informer).
25.20 Mr. Chavan submitted that the evidence of
PW38- Dheeraj Mehta would show that he was under pressure
and under duress of the relatives of the appellants-accused and
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that an advocate who used to appear for some of the appellants-
accused was also pressurizing him to give statements in a
particular way in the said case, pursuant to which, PW38- Dheeraj
Mehta gave his earlier statements i.e. prior to his statement dated
th th
27 August 2009 (161 statement) and statement dated 4
September 2009 (164 statement) recorded by the SIT and the
learned Magistrate, respectively. Mr. Chavan submitted that
therefore, non-examination of Nilesh will not have any bearing in
the peculiar facts of this case, inasmuch as, the said disclosure
made by Nilesh to PW38-Dheeraj Mehta would clearly fall within
the exception to the admissibility of hearsay evidence and as such
the said disclosure would be admissible in law and as such would
not be fatal to the prosecution. Learned Spl.PP relied on Section 6
of the Evidence Act, in particular, illustration (a) of the said
section, in support of his submission.
25.21 Mr. Chavan submitted that within a few
minutes, on learning of the abduction of Ramnarayan and Anil
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Bheda at 12:40 hrs, calls were exchanged between PW38-
Dheeraj Mehta and PW57-Shankar @ Girish Dalsingh @ Nepali
and PW3-Shyamsunder Gupta and PW1-Ramprasad Gupta. He
submitted that the evidence of the said witnesses i.e. PW38-
Dheeraj Mehta, PW57-Shankar @ Girish Dalsingh @ Nepali,
PW3-Shyamsunder Gupta, PW1-Ramprasad Gupta and PW40-
Aruna Bheda, corroborate each other with respect to the same
and that there is no reason to disbelieve the same.
25.22 Mr. Chavan submitted that the oral evidence of these
witnesses with respect to abduction, is duly supported by
documentary evidence i.e. by faxes/telegrams sent by Ramprasad
Gupta (PW1) and Ganesh Iyer (PW2) to various authorities. He
submitted that the evidence of PW1-Ramprasad Gupta is duly
corroborated by PW4-Shaligram Wankhade, Sub-Divisional
Engineer, working in Central Telegraph Office, Mumbai; PW41-
Wasudeo Channe, working in Customer Service Centre, BSNL,
Prabhadevi; PW42-Bhavka Bhangare, working as Telegraph
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Assistant at the Matunga Office; PW44-Arjun Satam, working as a
Telegraph Assistant at Dadar Telegraph Office; PW47-Santosh
Naik, working as a Writer in Main Control Room (who received
the telegram addressed to the CP, Mumbai); PW49-Ravindra
Kulkarni, Personal Assistant of the CP, at the relevant time; and
PW5-Rachana Vanjare, Clerk, working with the BSNL, with
respect to receipt of a telegram. Mr. Chavan relied on the
telegram reports placed on record by the said witness i.e. PW5-
Rachana Vanjare, received by her from the Dadar and Matunga
Telegraph Office (Exh. 131). Mr. Chavan also relied on the
evidence of PW46-Lakkaraju Narsimha, to show that although
the original charge book was destroyed in 2010, a corresponding
entry to that effect was made in the Station Diary. The said entry
in the charge book pertains to an entry i.e. Exh. 356 i.e. receipt
of a telegram by the main control room, addressed to the CP, on
th
11 November 2006.
25.23 As far as faxes sent by PW1-Ramprasad Gupta
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are concerned, Mr. Chavan submitted that the prosecution had
proved sending of two faxes i.e. one, to the CP, Navi Mumbai
th
and the other, to the CP, Thane, on 11 November 2006. Mr.
Chavan, to prove sending of the two faxes, relied on the evidence
of PW93-Sadashiv Borale, who was attached to C.B.D Control
Room and attached to the Office of the CP, Navi Mumbai, to
th
prove the receipt of fax on 11 November 2006 at 16:45 hrs; the
evidence of PW94-Sunil Somawanshi, who was attached to the
Control Room at Navi Mumbai, with respect to Station Diary
th
entries made by the said witness on 12 November 2006 i.e.
Exhibits 702 and 703; PW92-Dinkar Thakur was examined to
show that the original fax message book could not be produced
and for proving the affidavit filed by him (Exh. 694). He
submitted that although an attempt was made by PW1-
Ramprasad Gupta to send a fax to the CP, Mumbai, for want of
fax tone from the Office of the CP, the fax could not go through.
Mr. Chavan submitted that the evidence of the witnesses
examined to prove the same, would show that faxes and
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telegrams were sent and as such, there was no serious challenge to
the evidence of sending faxes and telegrams by PW1-Ramprasad
Gupta and PW2-Ganesh Iyer, to the authorities as stated
aforesaid. He submitted that the dispute only pertains to the
contents of the said faxes. He submitted that the faxes sent, were
clearly admissible under Section 80 of the Evidence Act and that
though originals were not available, the prosecution has proved
the said documents by leading secondary evidence.
25.24 Mr. Chavan submitted that the prosecution has thus
proved abduction of Ramnarayan and Anil Bheda by the accused,
by legal, cogent and admissible evidence. In support of the
submission, learned Spl.PP relied on the evidence of PW1-
Ramprasad Vishwanath Gupta, PW2-Ganesh R Iyer, PW3-
Shyamsunder Gupta, PW38-Dheeraj Mehta, PW40-Aruna Bheda
and PW57 - Shankar @ Girish Dalsingh. He submitted that the
evidence of the said witnesses is duly corroborated by prompt
sending of faxes/telegrams, letters and filing of writ petition as
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well as by the CDR records. He submitted that the evidence of
the said witnesses has not been shattered, despite a grueling and
lengthy cross-examination.
25.25 Mr. Chavan submitted that the evidence of
PW1- Ramprasad Vishwanath Gupta with respect to having called
his friend for securing fax numbers has been duly corroborated
by the said witness i.e. PW6-Mahesh Muley, from whom PW1-
Ramprasad Gupta had taken fax numbers and PW8-Amit
Jambotkar, to whom PW1-Ramprasad Gupta asked to make
inquiry at the Crime Branch office at Thane. He submitted that
the said evidence was also corroborated by the CDR of PW1-
Ramprasad Gupta, of having made calls to PW6-Mahesh Muley
and PW8-Amit Jambotkar. It is further submitted that PW1–
Ramprasad’s evidence has also been duly corroborated by PW40-
Aruna Bheda, on all material aspects, which are germane to the
decision of the said case.
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25.26 Mr. Chavan submitted that in order to prove
wrongful confinement of Anil Bheda, the prosecution has
examined PW40-Aruna Bheda, PW32-Sumant Bhosale, PW55–
Milind More, PW43–Madan More, PW45–Naresh Phalke,
PW37-Astatu Arya and PW52-Purba Bhattacharya. He submitted
that Anil Bheda had a mobile and that his CDR shows that he last
th
called from his mobile at 11.30 hrs on 11 November 2006,
from his residence. He submitted that thereafter Anil Bheda’s
mobile was never operational, which will show that Anil Bheda
was confined by the police. Mr. Chavan relied on the evidence of
PW40-Aruna Bheda, to show that her husband Anil Bheda was
th
brought to the police station on 12 November 2006 by the
th
police, after his abduction on 11 November 2006; that after
withdrawing the missing complaint lodged by PW40-Aruna
Bheda, when Anil Bheda and Aruna Bheda came out, Anil Bheda
disclosed to PW40-Aruna Bheda, how he and Ramnarayan were
abducted by OA1’s men and taken to D.N. Nagar Police Station,
within that short moment. He submitted that the evidence of
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PW40-Aruna Bheda, will also reveal that her husband-Anil Bheda
was wrongly confined by the police, in particular, by A2-Tanaji
Desai, A3-Ratnakar Kamble @ Rattu and A5-Hitesh Solanki @
th
Dhabbu. He submitted that after Anil Bheda surfaced on 12
November 2006 i.e. was brought by the police to the Vashi Police
Station, he, alongwith PW40-Aruna Anil Bheda, were taken to
their house by the police in a Qualis vehicle; and from there, they
were asked to pick up their clothes and were taken in the same
Qualis vehicle to Aruna Bheda’s father’s house at Bhatwadi,
th
Ghatkopar; that on 13 November 2006, Anil Bheda was taken
to D.N. Nagar Police Station and thereafter, on the insistence of
PW40 - Aruna Bheda, she and her son were permitted to
accompany Anil Bheda, who was taken to Kolhapur by A5-
Hitesh @ Dhabbu, where they were kept in a hotel. He further
submitted that the fact, that PW40–Aruna Bheda’s son was absent
th th
from school from 11 November 2003 to 11 December 2006 is
duly corroborated by PW52-Purba Bhattacharya, Primary School
Teacher, where, PW40–Aruna Bheda and Anil Bheda’s son were
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studying. The said witness has produced the original attendance
register and documents showing admission/absence and when
their son left school. He further submitted that the evidence of
PW40 – Aruna Bheda vis-a-vis wrongful confinement by A2-
Tanaji Desai, A3-Ratnakar Kamble @ Rattu and A5-Hitesh
Solanki @ Dhabbu is duly corroborated by their CDRs. He
submitted that the prosecution has examined PW37-Astatu Arya,
Divisional Engineer, Ghatkopar Telephone Exchange, MTNL, to
show that 2 PCO’s were standing in the name of PW40 - Aruna
Bheda’s father. He submitted that the CDRs would show that
calls were made from the said PCO by Aruna Bheda to speak to
Anil Bheda on the telephone numbers of A2 and A3. Mr. Chavan
relied on Exhibits 269, 549 and 407. He submitted that the
evidence on record will show that the phone used by A5
(XXXXXX5118) stood in the name of Shaikh Kaider. He
submitted that the evidence of PW40 – Aruna Bheda would show
that Anil Bheda was kept in confinement, right from the time of
th th
his abduction on 11 November 2006 till 12 December 2006,
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by the police initially, at Bhatwadi, then Kolhapur and then, at
Mid-town Hotel.
25.27 Mr. Chavan submitted that the aforesaid
evidence vis-a-vis confinement of Anil Bheda is further fortified
by the evidence of PW55-Milind More, PW43-Madan More and
PW45-Naresh Phalke.
25.28 Mr. Chavan submitted that the next set of
evidence pertains to pressure tactics/intimidation employed/ done
by the accused persons to cover up C.R. No.302/2006, i.e. the
fake encounter. In this connection, Mr. Chavan relied on the
th th
three orders passed by this Court dated 13 February 2008; 11
th
August 2008 and 13 August 2009. He submitted that it is also
pertinent to note that a Suo-Motu Contempt proceeding was
initiated as against A9–Pradeep Suryawanshi for interfering in
the administration of justice, pursuant to the report sent by the
learned Magistrate. Mr. Chavan submitted that this Court vide
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th
judgment dated 4 February 2011 held A9–Pradeep Suryawanshi
guilty and sentenced him to 3 months imprisonment. He
submitted that the said judgment was challenged by A9–Pradeep
Suryawanshi, by way of an SLP, however, the said SLP was
dismissed.
25.29 Mr. Chavan submitted that throughout the
proceeding before the Magistrate, High Court and even after the
SIT took over the investigation, the accused continued to exert
pressure on the witnesses to fall in line with the investigation of
C.R. No.302/2006. In support of his submission, Mr. Chavan
relied on the evidence of PW31-Dattatray Sankhe, P.I and
Investigating Officer in C.R. No.302/2006; evidence of PW35-
Kiran Sonone, Senior P.I attached to Oshiwara Police Station;
evidence of PW39-Mohandas Sankhe and the evidence of the
Investigating Officer i.e. PW107-Manoj Chalke, PW109-Sunil
Gaonkar, PW110-K.M.M. Prasanna and several others. He
submitted that the evidence that has come on record is also duly
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supported by the CDRs.
25.30 Mr. Chavan also relied on the evidence of
PW110-K.M.M. Prasanna to show why Anil Bheda was not
rd
called upon to show Trisha Collection prior to 3 September
2009; why PW40–Aruna Bheda was constrained to lodge a
missing complaint with respect to the disappearance of Anil
th
Bheda on 12 November 2006 and why Jayesh Kesariya had
deposed earlier, that he had accompanied Anil Bheda to Shirdi on
th
11 November 2006.
25.31 Mr. Chavan also relied on the affidavits filed by
A9 and the documents annexed thereto to show the manipulation
done by the police. He submitted that the statement of one of the
witnesses, was obtained after almost three years by A9, when
there was no occasion for him to do so and more so, when he
was not even investigating the case (C.R. No.302/2006).
25.32 Mr. Chavan relied on the post-mortem report
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and the evidence of PW29–Dr. Gajanan Chavan with respect to
the injuries sustained by the deceased. He submitted that the
evidence would show that the death of the deceased was
instantaneous. He submitted that there would have been more
blood oozing, if the person shot at, was alive as compared to a
dead person. He submitted that the evidence of PW29–Dr.
Gajanan Shejrao Chavan would show that there was rupture of
the atrium and as such, it is impossible that the pool of blood will
be as small i.e. 1 foot, as was found at the spot. Mr. Chavan
submitted that the same would belie the appellants/accused case,
that Ramnarayan was shot at the spot in an encounter.
25.33 Mr. Chavan also relied on the evidence of the
carrier in whose possession the articles were and who handed
over the same, in a sealed condition to the FSL i.e. evidence of
PW21–Kailas Ekilwale, PW53–Vishwajit Chavan and PW91-
Sudu Patade.
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25.34 As far as CDRs are concerned, he submitted
that the CDRs of the appellant/accused clearly corroborate the
prosecution case of abduction, of taking the deceased to
Bhandup, from there to D.N. Nagar Police Station and from there
to Nana Nani Park. Mr. Chavan has tendered a compilation of
the CDRs to show the calls made and the presence of the accused
at the spot, despite the said areas, being outside their
Commissionerate and despite there being no occasion for them to
go there i.e. to a different Commissionerate.
25.35 Mr. Chavan has submitted a detailed chart of
the CDRs exchanged between the accused inter se and the calls
made between the witnesses to corroborate the evidence adduced
by the prosecution. He submitted that the CDRs have been duly
proved by the prosecution through the concerned witnesses and
that the said CDRs corroborate the evidence that has come on
record i.e. with respect to abduction of the deceased and Anil
Bheda; taking them to Bhandup where they were put in two
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different vehicles, and thereafter, to D.N. Nagar Police Station;
thereafter, the deceased was taken to Nana Nani Park; and Anil
th
Bheda was taken to Vashi Police Station on 12 November 2006;
from there to Bhatwadi, Ghatkopar; from there to D.N. Nagar
Police Station; then to Shirdi; and thereafter, from Shirdi back to
Mid-town Hotel, Andheri. He submitted that the prosecution has
also duly proved that Pradeep Sharma (OA1) was using the Sim
belonging to A5 and this is evident from the location of the said
number at D.N. Nagar Police Station and the calls exchanged
between OA1 and the accused as well as the calls made to the
Addl.CP–Bipin Bihari. Mr. Chavan further submitted that the
evidence of PW1-Ramprasad Gupta, PW2-Ganesh Iyer, PW3-
Shyamsunder Gupta, PW38-Dheeraj Mehta and PW40-Aruna
Bheda, also stand duly corroborated by the CDRs of the said
witnesses.
25.36 As far as allotment of arms and ammunition in
th
connection with C.R. No.302/2006 on 11 November 2006 and
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th
12 November 2006, Mr. Chavan relied on the evidence of
PW17–Hanumant Kambli and PW19–Jyotiram Phasale, both
attached to Versova Police Station; PW22–Vishnu Khatal and
PW23–Shavaka Tadvi, both attached to D.N. Nagar Police
Station as well as the evidence of PW60–Maruti Patil attached to
the Magazine Section at Naigaon Armory Depot, (where the arms
and ammunition are kept).
25.37 He submitted that PW17–Hanumant Kambli
has proved the entry made by him with respect to API – Nitin
Sartape (A11) having taken 1 pistol and 6 rounds from the Arms
and Ammunition Division of Versova Police Station. He submitted
that PW19–Jyotiram Phasale has proved that A11-Nitin Sartape,
th
returned 1 pistol and 5 rounds on 12 November 2006 (after
firing 1 round) and that there is an entry to that effect in the
register. He further submitted that PW22–Vishnu Khatal, had
handed over 1 revolver and 6 rounds to PI-Pradeep Suryawanshi
@ Nana (A9) on 11th November 2006 at 18:00 hrs; and also
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weapons to API–Arvind Sarvankar (A22), Dilip Palande (A15)
and Anand Patade (A18). He submitted that the signatures of all
i.e. Pradeep Suryawanshi @ Nana (A9), Dilip Palande (A15) and
Anand Patade (A18) are there in the register, however,
inadvertently, API – Arvind Sarvankar's (A22) signature could not
be taken. He submitted that neither Pradeep Suryawanshi @
Nana (A9), nor Dilip Palande (A15) or Anand Patade (A18)
have denied taking arms from PW22–Vishnu Khatal and that
only API–Arvind Sarvankar (A22) has pleaded ignorance about
having taken any weapon/ammunition.
25.38 According to Mr. Chavan, as per C.R.
No.302/2006, 2 bullets were fired by A9; 1 by A11, 1 by A15 and
1 by A22. He submitted that as far as A9 and A15 are concerned,
they both do not dispute that they had fired at the deceased from
the weapons they had taken. He submitted that admittedly the
weapons used by A9, A11, A15 and, A22 were not sent to the
FSL in connection with C.R.No.302/2006 (Versova Police
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Station) and that all the weapons of the accused were sent to FSL,
post the registration of the present C.R with the Versova Police
Station i.e. C.R.No. 246/2009. Mr.Chavan submitted that the
FSL report would show that the bullet which was allegedly fired
by A11 was fired from A2’s weapon, whereas, the bullet that was
allegedly fired from A22’s weapon was fired from OA1’s weapon.
He submitted that 3 bullets were retrieved from the body of
Ramnarayan and that one of the bullet which was retrieved was
bullet fired from OA1's weapon, 1 from A9’s and 1 from A15’s
weapon. He submitted that it is only after the FSL report was
received in the present C.R, that A11 and A22 disputed taking of
the weapons or firing from the said weapons.
25.39 As far as PW23–Shavaka Tadvi is concerned,
Mr. Chavan submitted that his evidence would show that he had
th
received arms after the alleged encounter i.e. on 12 November
2006 from A9, A15, A18 and A22. The said witness has given
details of the arms and ammunition received from the said
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accused. They are at Exhibits–216 to 219 and 221 to 224. He
submitted that there is absolutely no cross-examination with
respect to return of the said articles i.e. arms and ammunition by
the accused.
25.40 As far as the evidence of PW60 – Maruti Patil is
concerned, Mr. Chavan, submitted that the said witness was
attached to Naigaon Armory Depot, at the relevant time. He
submitted that his evidence will show that there is a history of
every weapon i.e. butt history and that his evidence would show
that although A2 had taken 30 rounds and deposited 30 rounds,
A2 had used A11’s bullet and shot the deceased with his (A2’s)
weapon. He submitted that the same is fortified by the ballistic
report, which shows that A2 fired from the weapon. He
submitted that A11’s bullet was used by A2 in his weapon and
therefore all the rounds which were returned/deposited by A2
were intact. He submitted that the evidence of this witness would
also show that A11 took 30 rounds but deposited 29 rounds, as 1
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bullet was used in C.R. No.302/2006. He submitted that after
receipt of the ballistic report, A11 denied firing on the deceased,
although in the FIR lodged by A9, he is alleged to have fired at
the deceased.
25.41 Mr. Chavan relied on the evidence of PW60 to
show the history of the weapons used by A22, A9, OA1. He
submitted that Butt No.468 was used by A22 – Sarvankar and
that according to C.R. No.302/2006, A22 had taken the said
weapon and 5 bullets from D.N. Nagar Police Station and had
returned the weapon with 4 bullets. He submitted that the
Ballistic report shows that the bullet alleged to have been fired by
A22 was fired from OA1's weapon i.e. Butt No.347. Mr. Chavan
also relied on the evidence of PW64–Sunil Sawant, PW66–Sabir
Sayeed, PW67–Manoj Desai, PW80–Pravin Bhosale, PW98 –
Sandeep Dal, all attached to the Armory Section of Naigaon to
prove the history of the weapon/handing over and depositing of
the weapons etc. Mr. Chavan also relied on the two panch
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witness i.e. PW28–Bapurao, panch to the seizure of the arms from
Naigaon i.e. seizure of arms of A2, A9, A11, A15, A18 and A22
and the evidence of PW34–Shamsuddin Ansari, panch with
respect to the seizure of weapon of OA1. Mr. Chavan submitted
that the evidence of the aforesaid witnesses is duly corroborated
by the investigating officers i.e. PW107–Manoj Chalke, PW8–
Vinay Ghorpade, PW109–Sunil Gaonkar and PW110–K.M.M.
Prasanna with respect to the seizure of the weapons, panchnama,
sending of articles to the FSL and so on.
25.42 As far as Section 197 Cr.PC is concerned, Mr.
Chavan submitted that the acts of the accused are not protected
under Section 197 Cr. PC, inasmuch as, the acts were not done in
the discharge of their official duty warranting protection. In this
connection Mr. Chavan submitted a compilation of judgments on
Section 197 Cr.PC, on which reliance was placed.
25.43 Thus, according to Mr. Chavan, learned Spl. P.P,
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the prosecution has proved all the circumstances relied upon by
them, by leading legal, admissible and cogent evidence and that
the said oral evidence was duly corroborated by the documentary
evidence. He submitted that the prosecution once having proved
abduction of Ramnarayan and Anil Bheda, it becomes a clear case
of custodial death of Ramnarayan, i.e. a case of murder which is
given a colour of a genuine encounter. He submitted that the
appellants/accused have failed to discharge the burden cast on
them under Section 106 of the Evidence Act i.e. to show what
happened to Ramnarayan, whilst he was in their custody, and as
such, this becoming an additional circumstance, in the chain of
circumstances proved by the prosecution. Accordingly, Mr.
Chavan submitted that no interference was warranted in the
impugned judgment and order, so far as it convicts the appellants
for the offences mentioned in Para 2 herein-above.
25.44 We may note here, that all learned counsel
appearing for the appellants/accused and Mr. Palande (A15),
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appearing in-person as well as Mr. Chavan, learned Spl. P.P have
submitted their written submissions, during the course of hearing,
which were taken on record by us.
IV. ANALYSIS
A. Sequence of events in detail
26 The case in hand has a chequered history, and as such,
it would be necessary to place the two versions, that have come
on record; one as mentioned in C.R. No. 302/2006 registered
th
with the Versova Police Station on 11 November 2006, at the
behest of A9; and the present case i.e. C.R. No. 246/2009
th
registered with the Versova Police Station, on 20 August 2009,
after SIT was constituted, after almost 3 years of the incident,
th
pursuant to the order dated 13 August 2009 passed by this
Court in W.P. No. 2473/2006 (preferred by Ramnarayan’s
(deceased) brother i.e. PW1).
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i. C.R. No. 302/2006 registered with the Versova Police
Station at the behest of A9
27 According to Police Inspector-Pradeep Pandurang
Suryawanshi (A9), who at the relevant time, was attached to D.N.
th
Nagar Police Station, he received information on 11 November
2006 at 16:45 hrs from his informer, that one Ramnarayan @
Lakhanbhaiya (deceased), aged 38 years, who was wanted in
cases of murder, dacoity, theft and extortion, was to come to
Nana Nani Park at Seven Bungalow, Andheri (West), Mumbai, to
meet his associates/accomplice. Accordingly, at 17:15 hrs, A9
informed his Superior Officers i.e. the ACP, D.N. Nagar Division,
the DCP, Zone-IX and the Addl. CP, West Region of the same. At
about 18:30 hrs, Pradeep Suryawanshi (A9) called API Dilip
Palande (A15), API Arvind Sarvankar [A22 (now deceased], PSI
Anand Patade (A18), PC Devidas Sakpal (A13) and other staff to
his cabin and briefed them about the information so received.
Pursuant thereto, all the aforesaid drew a plan to apprehend
Ramnarayan @ Lakhanbhaiya.
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27.1 At about 18:40 hrs., Pradeep Suryawanshi (A9),
alongwith his officers and constables and the secret informer,
made a plan to arrest Ramnarayan and the officers and men were
given appropriate instructions about the said operation.
27.2 At about 19:10 hrs., the aforesaid police officers
and the staff reached Nana Nani Park, Seven Bungalow, Juhu-
Versova Link Road. The spot was inspected and Pradeep
Suryawanshi (A9) formed two groups (Group 1 and Group 2)
and concealed themselves at different spots. Pradeep
Suryawanshi (A9) told the Officers and the staff to wait for his
signal.
27.3 Group-1 consisted of PI Pradeep Suryawanshi
(A9), the secret informer, API Nitin Sartape (A11), PSI Anand
Patade (A18), Head Constable-Prakash Kadam (Buckle No.
18839) (A16), Police Naik-Pandurang Kokam (Buckle No. 26645)
(A19), Police Constable-Devidas Sakpal (Buckle No. 10502)
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(A13). The said group i.e. Group-1 positioned themselves in
front of Magnum Opus Building, situated on the west side of the
Nana Nani Park.
27.4 Group-2 consisted of API Palande (A15), API
Sarvankar (A22), PSI Harpude (A17), Police Constable-Ratnakar
Kamble (Buckle No. 31963) (A3), Police Constable-Tanaji Desai
(Buckle No.31241) (A2) and Police Constable-Sandip Sardar
(Buckle No.33492) (A20). The said group-2 positioned
themselves in front of Trishul Building, near the compound of
Nana Nani Park.
27.5 At about 20:10 hrs., one auto-rickshaw came
from Versova side and stopped near an electric pole, on the
southern side of Nana Nani Park. One person alighted from the
said auto and was loitering; the secret informer, who was present
in Group-1, identified the said person as Lakhanbhaiya and
accordingly, informed PI Pradeep Suryawanshi (A9), who
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thereafter, signaled to the police officers/staff and cautiously
proceeded to apprehend him. The Officers/Staff in Group-2 also
proceeded ahead to arrest Ramnarayan. According to A9, on
seeing the movements of the police officers, Ramnarayan pulled
out a revolver from his waist and pointed it at PI Pradeep
Suryawanshi (A9). According to PI Pradeep Suryawanshi (A9), he
shouted loudly and identified them as policemen and asked him
not to fire, but to surrender himself. It is alleged that
Ramnarayan did not heed to the warnings of the police and fired
one round at PI Pradeep Suryawanshi (A9), however, he evaded
the said shot. It is further alleged that API Sarvankar (A22)
positioned in Group-2 also shouted saying that they were
policemen and that he (Ramnarayan) should surrender, however,
Ramnarayan is alleged to have fired one round in the direction of
Group-2.
27.6 It is the case of A9, that the said officers and
staff in Group-1 and Group-2, in order to protect themselves and
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the public, from being shot by Ramnarayan, opened fire in
retaliation/self defence. According to PI Pradeep Suryawanshi
(A9), he fired two rounds from his service revolver, API Sartape
(A11) fired one round from his pistol and API Sarvankar (A22)
and API Palande (A15) fired one round each from their service
revolvers, in the direction of Ramnarayan. Pursuant to the said
firing, Ramnarayan sustained bullet injuries and fell down. The
said firing is alleged to have taken place between 20:11 hrs. to
20:13 hrs.
27.7 PI Pradeep Suryawanshi (A9) informed the
incident to the West Control Room at 20:15 hrs. and requested
them to send a wireless van for assistance, to shift Ramnarayan
to the Hospital. Pursuant thereto, Versova-1 Mobile reached the
spot and removed Ramnarayan to Cooper Hospital. API
Sarvankar (A22) and API Nitin Sartape (A11) are stated to have
accompanied Ramnarayan to the Hospital. Ramnarayan, when
brought to the OPD, at 21:00 hrs, was declared to be dead by the
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Casualty Medical Officer. PI Pradeep Suryawanshi (A9) is stated
to have asked the staff to protect the spot, after which, PI Pradeep
Suryawanshi (A9) went to Versova Police Station, Mumbai, and
lodged an FIR, which was registered vide C.R No. 302/2006 at
20:50 hrs., for the alleged offences punishable under Sections
307 and 353 of the IPC and Sections 3, 25 and 27 of the Arms
Act, as against Ramnarayan. (The said FIR is marked as Exh.
278). According to A9, while the FIR was being recorded, API
Sarvankar (A22) informed him that Ramnarayan was declared
dead before admission by the CMO of Cooper Hospital and
hence, the same was also incorporated in the FIR. Recording of
said FIR, by PI Sankhe (PW39), i.e. C.R. No.302/2006 with the
Versova Police Station, concluded at 21:50 hrs.
27.8 Post the registration of the said C.R, PI
Mohandas Sankhe (PW39) took over the investigation. He
directed PSI Jadhav to go to Cooper Hospital and carry out the
inquest panchnama. PI Sankhe seized two empties of bullets fired
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from the 0.38 service revolver of PI Pradeep Suryawanshi (A9)
under a panchnama (Exh.–279) between 22:05 to 22:35 hrs. PI
Sankhe (PW39), alongwith PI Suryawanshi, thereafter proceeded
to the spot of the incident and drew a spot panchnama on the
th
very same day i.e. 11 November 2006. The said spot
th
panchnama allegedly commenced at about 23:00 hrs. on 11
th
November 2006 and concluded at 1:35 hrs. of 12 November
2006 (Exh. 283).
27.9 According to PI Sankhe (PW39), there was a
pool of blood near electric pole No. KBC 13-061; one revolver
was lying near the said pool of blood; and one empty was found
near the said pool of blood and near Magnum Opus Building.
Pursuant thereto, PI Sankhe (PW39) took photographs of the spot
with the help of a photographer, Mr. Sharma. PI Sankhe (PW39)
took measurements of the place of incident, examined the
revolver allegedly used by Ramnarayan and found two empties
at the spot and two live bullets in the revolver. One fingerprint
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expert Mr. Gangadhar Sawant was called to examine the
fingerprints on the revolver, however, he did not find any
fingerprints and accordingly submitted his report, which is at
Exh. 284.
27.10 During the course of investigation, PI Sankhe
(PW39) also seized one empty produced by API Sarvankar (A22)
and one empty produced by API Palande (A15) under a
panchnama (Exh. 286). Accordingly, PI Sankhe (PW39) recorded
the statements of the raiding party, of the inquest panchas, the
photographer and other witnesses and also forwarded the dead
body for post-mortem examination vide ADR Form (Exh. 288)
and request letter (Exh. 289). PI Sankhe (PW39) also forwarded
the articles to the Chemical Analyzer and carried out investigation
th
till 15 November 2006. Subsequently, the investigation was
taken over by PI Dilip Patil of Oshiwara Police Station, who
recorded the statements of the police present at the time of
encounter and of other witnesses.
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ii. C.R. No. 246/2009 registered with Versova Police
Station, after SIT was constituted pursuant to the order
passed by this Court.
28 The prosecution case is to the contrary. It is the
th
prosecution case, that from 10 November 2006, a watch was
th
kept on the movements of Anil Bheda by the accused, that on 11
November 2006, Ramnarayan (deceased) and Anil Bheda left Anil
Bheda’s house at around 10:45 hrs.; that they both went to
PW38-Dheeraj Mehta’s shop at around 12:15 hrs, which was
situated at Sector 9A, Vashi, Navi Mumbai; that they stepped out
of the shop for sometime, when at around 12:35 hrs to 12:37
hrs, Ramnarayan and Anil Bheda were abducted in a Qualis
vehicle; that one Nilesh on seeing the same, immediately came to
PW38-Dheeraj Mehta’s shop at 12:40 hrs and informed him that
his friend (Anil Bheda) and friend’s friend (Ramnarayan) had
been taken in a Qualis Vehicle, by 5-6 persons, who were in plain
clothes; that PW38-Dheeraj Mehta informed PW57-Girish
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Nepali; who in turn, informed PW3-Shyamsunder Gupta, who in
turn, informed PW1-Ramprasad Gupta. Pursuant thereto, PW1-
Ramprasad Gupta called PW38-Dheeraj Mehta, who informed
him about the abduction; that PW1-Ramprasad Gupta asked
PW38-Dheeraj Mehta to inform PW40-Aruna Bheda, pursuant to
which, PW38-Dheeraj Mehta went to PW40-Aruna Bheda’s
house, at about 14:30 hrs. and informed her what had happened.
When PW38-Dheeraj Mehta was at PW40-Aruna Bheda’s house,
PW1-Ramprasad Gupta called PW38-Dheeraj Mehta, pursuant to
which, PW1 and PW2-Ganesh Iyer spoke to PW40-Aruna Bheda
and informed her that there was danger to the lives of Anil Bheda
and Pandeyji (Ramnarayan); PW1 also disclosed that they were
likely to be killed in a fake encounter; fax and phone numbers of
police were given by PW1 and PW2, to PW40-Aruna Bheda to
enable her to inform the authorities, however, PW40 decided to
wait till 17:00 hrs. to decide further course of action; that in the
meantime, PW1 and PW2 sent faxes and telegrams to all the
authorities in Aruna Bheda’s name, between 16:00 hrs. to 18:28
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hrs.; that at about 18:30 hrs., PW40 went to Vashi Police Station
and lodged a missing complaint that her husband Anil Bheda was
missing; that PW1-Ramprasad and PW2-Ganesh also visited
Belapur Police Station to find the whereabouts of Ramnarayan,
but did not get any information; and that at around 20:30 hrs.,
PW1-Ramprasad was informed by Shyamsunder Gupta (PW3)
that his brother was shot by the police in an encounter. Pursuant
thereto, PW1, PW2 with others, visited Versova Police Station
and from there, to Nana Nani Park; that they reached Nana Nani
Park at about 22:30 hrs. and found none at the spot. The said
persons only found a small pool of blood on which a newspaper
was placed with a stone kept on it.
28.1 It is the prosecution case, that soon after the
fake encounter, A9 lodged a false FIR as against Ramnarayan @
Lakhanbhaiya alleging offences under Section 307 etc. According
to the prosecution, PW1 had sent complaint letters to several
authorities, as he suspected foul play, however, since no action
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was taken, PW1 filed a writ petition in this Court, being
th
Criminal Writ Petition No. 2473/2006, on 15 November 2006.
Pursuant to the filing of the petition, a sleuths of orders were
th
passed by this Court, including the order dated 13 February
2008, wherein this Court directed the Metropolitan Magistrate,
Railway Mobile Court to conduct an inquiry regarding police
th
firing on 11 November 2006 under Section 176(1-A) of the
Cr.PC, as the Court was not happy with the report of the SLAO,
which had recorded a finding, that the encounter was a genuine
encounter. The Metropolitan Magistrate, Railway Mobile Court,
conducted an inquiry and accordingly submitted a report to this
Court. According to the learned Magistrate, it was a fake
encounter. Pursuant to the said report, the High Court vide order
th
dated 13 August 2009, constituted a SIT under the DCP, Zone-
IX, K.M.M. Prasanna.
th
28.2 The said order dated 13 August 2009 passed
by this High Court (Coram : B.H. Marlapalle & Smt. Roshan S.
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Dalvi, JJ.) is reproduced hereunder :
hereunder :
“1. This Petition under Article 226 of the Constitution of
India has been filed by a learned member of the Bar alleging
that his elder brother Ramnarayan Vishwanath Gupta was
abducted by the Mumbai Police on 11th November, 2006 at
about 1.00 p.m. and in a fake encounter he was shown killed
at about 8.00 p.m. on the same day. He had therefore, sent
telegraphic messages to the Respondent No.1 and other
higher-ups either in his name or in the name of the wife of
Mr. Anil Bheda, who was also allegedly picked-up by the
police along with Ramnarayan. On 12th November, 2006
the Petitioner’s other elder brother Shyamsunder identified
the dead body of Ramnarayan at J.J. Hospital and on the
next day the Petitioner requested for a copy of the
postmortem report, but he was not obliged. He filed a
complaint with Respondent No.1 on 14th November, 2006
and requested for an investigation into the murder of his
brother. As there was no response to the complaint, he has
approached this Court.
2. The Respondents including the Intervener have filed
reply and it has been stated that Ramnarayan was a known
criminal and wanted in pending criminal cases and the police
had got a tip off that he was to visit Nana Nani garden in
Andheri on 11th November, 2006 around 7.00 p.m.
Therefore, the police party was deputed to visit the said
place and take him in custody. At about 7.30 p.m,
Ramnarayan came in an auto-rickshaw to the destination and
when he was called upon to surrender by the police party, he
started firing from the weapon in his possession and
therefore, the police had to upon fire in which Ramnarayan
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died.
3. This Court passed orders from time to time and a
magisterial inquiry conducted at the behest of Respondent
No.1 was not found to be sufficient to discard the
Petitioner’s prayer. In a detailed order dated 13th February,
2008 this Court in paragraph 7 recorded a prima facie
satisfaction that the case was within the parameters of
Section 176(1-A) of the Code of Criminal Procedure and
therefore, it was necessary to order an inquiry under the said
Section and to be conducted by the Metropolitan Magistrate.
In paragraph 8 of the said order this Court clarified that
whether the alleged encounter had taken place while the
deceased was in custody of the police or whether he had
disappeared after the deceased was taken into custody by the
police, or otherwise, would be the issues requiring inquiry by
the concerned Metropolitan Magistrate. Consequently the
learned Metropolitan Magistrate, Railway Mobile Court,
Andheri submitted her report dated 11th August, 2008 and
in her forwarding letter on the same day she stated that the
inquiry conducted by her was in respect of the following 3
issues:
a) Whether alleged encounter has taken place while
the deceased was in custody of police.
b) Whether he had disappeared, after the deceased
was taken into custody by the police.
c) Or otherwise.
4. In her inquiry it is concluded that the death of
Ramnarayan was caused while he was in police custody. His
death had not taken place at the spot alleged by the police
and that the deceased had not disappeared from the police
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custody before he was done to death, but that the deceased
was abducted by the police. As per the learned Metropolitan
Magistrate the Petitioner’s brother was somewhere else and
the police had shown that as an encounter killing at Nana
Nani Park.
5. In the order dated 23rd January, 2009 this Court
noted that it would be desirable to hear the Respondents as
well the Interveners on their objections to the report
submitted by the learned Metropolitan Magistrate and
consequently we have heard the learned Counsel for all the
parties at length. We have also considered the post mortem
report and more particularly the places of bullet injuries on
the person of the deceased. The learned Counsel for the
Respondents and Interveners by citing a host of decisions of
the Supreme Court as well as this Court urged before us not
to entertain this Petition and argued that the Petitioner be
relegated to the alternative remedy of filing a private
complaint under Section 190 and 200 of the Code of
Criminal Procedure and a Petition under Article 226 of the
Constitution of India cannot be entertained. Whereas Mr.
Pradhan, the learned Sr. Counsel for the Petitioner also
relied upon a host of the decisions of the Supreme Court as
well as this Court including the Full Bench of this Court and
submitted that it was a fit case to direct the police authorities
to register a crime and handover the investigation to the
Central Bureau of Investigation, as not only some of the
senior police officials are the Interveners, but even the
affidavit in reply filed by the Respondent No.1, who is the
head of the Mumbai Police, indicated suppression of
material facts and thus an attempt to mislead the Court.
6. Be that as it may, we are satisfied that the complaint
of the Petitioner in respect of the murder of his brother is
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required to be investigated into and more so as it is an
admitted fact that Ramnarayan died by the bullets fired by
the police officers. We had called upon the learned Incharge
P.P to submit before us a panel of I.P.S. Officers, in
consultation with the Directorate General of Police -
Maharashtra, so that one of these paneled officers could be
appointed as the Investigating Officer and as a head of the
Special Investigating Team, which we propose to constitute.
7. Mr. Pol has submitted before us a list of 5 officers
from the I.P.S. Cadre. We hereby appoint Shri
K.M.M.Prasanna, D.C.P, Mumbai City as the Investigating
Officer and we leave it to the choice of the Investigating
Officer to have other 2 or 3 police officers to assist him in
the investigation and the said personnel shall be spared by
the Commissioner of Police, Mumbai or the Directorate
General of Police, Maharashtra State, as the case may be.
8. We direct the Petitioner to approach the said Officer
immediately, submit a copy of his complaint dated 14th
November, 2006 addressed to Respondent No.1 and request
the said Officer to record his statement afresh, which
statement shall be treated as an F.I.R to be registered by the
said Investigating Officer. The Petitioner shall also submit
the list of witnesses to the Investigating Officer. The
Investigating Officer shall proceed to record the statements
of all the witnesses and ofcourse the list of witnesses should
not be confined only to the names mentioned by the
Petitioner. We also leave it to the choice of the Investigating
Officer to subject any of these witnesses to lie detection test,
including the Petitioner and his friend Shri Ganesh Iyer –
Advocate, Shri Anil Bheda and his wife Mrs. Aruna Anil
Bheda.
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9. The Investigating Officer shall submit before us the
progress report in the investigation so conducted from time
to time and the first such report shall be placed before us
within 4 weeks from today.
10. Mr. A.N. Roy appeared before us on 12th August,
2009 and submitted his affidavit tendering an unconditional
apology and explanation as to the circumstances leading to
the receipt of the telegram sent by the Petitioner on 11th
November, 2006 and its forward dispatch for an appropriate
action by the D.C.P. We have heard Mr. Walwalkar
appearing for Mr. Roy. We have accepted the apology
tendered by Mr. Roy.
11. Hence, Stand over for 4 weeks.
12. A copy of this order be forwarded forthwith to (1)
The Director General of Police, Maharashtra, (2) The
Commissioner of Police, Mumbai and (3) Shri K.M.
Prasanna, D.C.P. Mumbai City.
Sd/- Sd/-
(SMT.ROSHAN S. DALVI, J.) (B.H.MARLAPALLE, J.)
13. The above order was dictated in the first half.
However, in the second half Mr. Mirajkar, the learned
Counsel for one of the Interveners submitted an oral
application and prayed for stay to the operation of this
order.
14. The oral application is hereby rejected.
(emphasis supplied)
Sd/- Sd/-
(SMT.ROSHAN S. DALVI, J.) (B.H.MARLAPALLE, J.)”
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28.3 Pursuant to the said order, SIT was constituted,
as this Court was prima facie of the opinion that it was a fake
encounter.
28.4 During the course of investigation by the SIT,
the prosecution recorded the statements of several persons
including that of PW1-Ramprasad Gupta (brother of deceased-
Ramnarayan), PW3-Shyamsunder Gupta (another brother of
deceased - Ramnarayan), PW2-Ganesh Iyer, who was present with
PW1-Ramprasad Gupta, when he received the information about
abduction of his brother Ramnarayan, Aruna Bheda (PW40),
Dheeraj Mehta (PW38) and several other witnesses.
28.5 The most important and prime witness whose
statement was recorded by SIT, both under Section 161 and under
Section 164 was, that of Anil Bheda, who was present with
Ramnarayan, at the time when Ramnarayan was abducted from
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Sector 9, Vashi, Navi Mumbai. Thus, Anil Bheda was a star
witness for the prosecution with respect to the abduction of the
two of them i.e. himself and Ramnarayan, by the police from
th
Vashi on 11 November 2006 around 12:30 hrs. and of the travel
from Vashi to Bhandup Complex and from there to D.N. Nagar
Police Station; and, thereafter, of his wrongful confinement by the
police and others. It is the prosecution case that Anil Bheda, was
kept in confinement by the appellant/accused since the date of his
th
abduction i.e. 11 November 2006, initially at Bhatwadi,
Ghatkopar, then in a Hotel at Kolhapur, and then at Mid-Town
Hotel, Andheri, Mumbai, so that he does not spill the beans vis-a-
vis the incident of abduction, he being the prime witness. It is
pertinent to note, that SIT and the learned Magistrate recorded
rd
the statements of Anil Bheda under Sections 161 and 164 on 3
th
September 2009 and 30 December 2009 respectively. Anil
th
Bheda, the star witness in the case, went missing on 13 March
2011 i.e. within 3 to 4 days, after charge came to be framed as
th
against the appellants/accused in the case, on 8 March 2011.
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Pursuant thereto, Aruna Bheda lodged a missing complaint on
th
13 March 2011 with the Vashi Police Station. A burnt dead body
was found by the Manor Police, in the vicinity of a farm at
Manor, District Thane. Later on, it was confirmed that, the burnt
dead body was that of Anil Bheda. The said body was identified
on the basis of the DNA carried out. It appears that the
investigation of the said case i.e. death of Anil Bheda, is still
pending with the State CID.
28.6 The investigation done by SIT in the instant
case revealed that Ramnarayan and Anil Bheda were abducted by
the police from Vashi and thereafter, were taken to Bhandup
Complex and from there, to D.N. Nagar Police Station.
Ramnarayan was shot dead. It is the prosecution case, that the
appellants/accused created a false case, that Ramnarayan was
killed in an encounter at Nana Nani Park, Andheri. Thereafter,
Anil Bheda, an eye-witness to the abduction and what happened
between Vashi and D.N. Nagar was wrongfully confined by the
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police and others, for almost a month, so that he does not spill
the beans. Accordingly, after investigation, charge-sheet was filed
in the said case as against the appellants and acquitted accused –
Pradeep Sharma (OA1), under Sections 364, 365, 368, 302, 120B
r/w 364, 143, 144, 147, 148, 149 r/w. 364, 149 r/w 365, 364 r/w
149, 365 r/w 149, 368, 364 r/w 109 r/w 120B and 365 r/w 109
r/w 120B, 368 r/w.109 r/w 120B, 344 r/w. 34, 344 r/w. 109 r/w
120B, 302 r/w 34, 302 r/w 109 r/w 120B, 201 r/w 34, 201 r/w
109 r/w 120B, 201, 201 r/w 109 r/w 120B, 174(A) of the IPC, in
the Court of the learned Metropolitan Magistrate, Railway
Mobile Court, Andheri (East), Mumbai.
28.7 Since the case was Sessions triable, the case was
committed to the Court of Sessions for trial. The prosecution in
support of its case, examined as many as 110 witnesses.
28.8 The defence of the accused was that of denial
and false implication. According to some of the accused i.e.
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Tanaji Desai (A2), Ratnakar Kamble (A3), Pradeep Suryawanshi
(A9) and Dilip Palande (A15), it was a genuine encounter,
whereas others denied their presence at the spot. Vinayak Shinde
(A7), in support of his case, examined two witnesses.
LIST OF DEFENCE WITNESSES EXAMINED BY THE
ACCUSED NO.7
| 1 | D.W.1 – Manohar P. Kulpe (Exh. – 960) |
|---|---|
| 2 | D.W.2 – Dagdu Bandu Patil, Senior Police Inspector<br>(Exh. – 973) |
28.9 The learned Judge after considering the
evidence on record, which was circumstantial and documentary
in nature, convicted and sentenced all the appellants as stated
herein-above in para 2 and acquitted Pradeep Sharma (OA1) as
stated in Para 3. Hence, the aforesaid appeals, by the
convicted appellants/accused and by the State of Maharashtra and
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the complainant as against the acquittal of Pradeep Sharma
(OA1). The complainant has also filed a revision application, for
enhancement of the sentence of 12 of the accused, all police
personnel.
28.10 Admittedly, the prosecution case rests entirely
on circumstantial evidence. Hence, before we proceed to analyse
the evidence, it would be apposite to consider the law vis-a-vis
circumstantial evidence, which is no longer res integra .
B. The Law on Circumstantial Evidence
29 In Hanumant Govind Nargundkar v. State of
12
M.P. which is one of the earliest decision, the Apex Court
observed specifically in para 12, as under:
“12. It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should in
the first instance be fully established, and all the facts so
12 AIR 1952 SC 343
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established should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be
of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed
to be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of
the accused and it must be such as to show that within all
human probability the act must have been done by the
accused.”
29.1 The Apex Court in the case of Sharad
13
Birdhichand Sarda v. State of Maharashtra , has laid down the
five golden principles (Panchsheel) which govern a case based
only on circumstantial evidence. Para 153 of the said judgment is
reproduced herein-under:
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal
distinction between “may be proved” and “must be or
should be proved” as was held by this Court in Shivaji
13 (1984) 4 SCC 116
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Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793
: 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p. 807: SCC (Cri) p.
1047]
“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court can
convict and the mental distance between ‘may be’ and
‘must be’ is long and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused.”
29.2 Thus, it is clear from the aforesaid that it is the
duty of the prosecution to prove each and every circumstance as
against the accused, no chain of which should be missing. Each
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of the circumstance must point to the complicity of the accused
and the established facts must be consistent / in consonance with
only the guilt of the accused and must exclude any hypothesis
consistent with the innocence of the accused. Keeping this in
mind, we now proceed to consider each of the circumstance
relied upon by the prosecution.
C. Circumstances and Analysis of each of the circumstance
30 The prosecution in support of its case, has relied on
the following circumstances :
(i) Formation of squad under OA1;
(ii) Abduction of the deceased (Ramnarayan) and Anil
Bheda;
(iii) Custodial death/fake encounter/Murder of the
deceased (Ramnarayan) by the police;
(iv) Wrongful confinement of Anil Bheda;
(v) Pressure tactics employed by the relatives of the
appellants/accused;
(vi) CDRs;
(vii) Ballistic report/forensic evidence; and
(viii) Criminal conspiracy.
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Accordingly, we proceed to consider whether the
prosecution has proved the circumstances as stated aforesaid as
against the appellants/accused, by legal, cogent and admissible
evidence.
31 Before we proceed to deal with each of the
circumstance relied upon by the prosecution, it would be
necessary to set out the stand of each of the appellant/accused,
who are police officers with respect to the encounter i.e. whether
they support the encounter i.e. C.R. No. 302/2006, lodged at the
behest of A9, or not.
32 Stand of each of the police accused vis-a-vis C.R. No.
302/2006 :
- As far as Tanaji Desai (A2), Ratnakar Kamble (A3),
Pradeep Suryawanshi (A9) and Dilip Palande (A15) are
concerned, the said appellants/accused have been named in C.R.
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No. 302/2006, as being part of the encounter team. According to
said appellants, it was a genuine encounter. The said four
appellants/accused have accepted the correctness of the FIR
lodged by A9, which was registered vide C.R. No. 302/2006.
Even in the present appeals, the said appellants have supported
the encounter and have submitted that since it was a genuine
encounter, it was mandatory for the prosecution to obtain
sanction under Section 197 Cr.P.C, which was not done.
- As far as Vinayak Shinde (A7) is concerned, he has
not been named in C.R No. 302/2006 (as being part of the team)
and has pleaded ignorance with respect to the correctness of the
said C.R. According to A7, he has nothing to do with the said
encounter. It appears from the tenor of the cross-examination
conducted of PW31, PW39, PW61, PW63 and PW83 and from
the examination of defence witnesses by A7, in particular DW2,
that the stand of A7 was that it was a genuine encounter.
S.Q. Pathan / N.S. Chitnis 186/867
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- Although, Nitin Sartape (A11), has been named in
C.R. No. 302/2006 and has accepted the correctness of the said
C.R in his statement under Section 313 Cr.P.C (Question
No.155), from the tenor of his cross-examination, it appears that
he has denied being part of the encounter team. Even before us,
whilst arguing his appeal, the said appellant, has denied being
part of the encounter team. It is the pertinent to note, that A2,
A3, A17 and A18 had filed an Intervention Application
No.283/2008 (Exh. 851) in Writ Petition No.2473/2006 and A11
had filed Writ Petition No.181/2009 (Exh. 848), wherein they
claimed to be a part of the encounter team.
- Although, Devidas Sakpal (A13), Prakash Kadam
(A16), Anand Patade (A18) and Pandurang Kokam (A19) have
been named in C.R. No. 302/2006 and have accepted the
correctness of C.R. No. 302/2006 in their 313 statements
(Question 155), the said appellants before us, have submitted
that they were not part of the encounter team. It is pertinent to
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note that A13, A16, A19 and A20 had filed an SLP, being SLP
No.6801/2009 (Exh. 135) in the Apex Court, claiming to be a
part of the encounter team.
- Ganesh Harpude (A17) and Sandeep Sardar (A20),
although named in C.R. No. 302/2006, have pleaded ignorance
with regard to the correctness of the said C.R., in their statements
recorded under 313 (Question 155). Before us, the appellants
have urged that they were not part of the encounter team and had
gone to the spot i.e. Nana Nani Park, only to help the police in
collection of the articles, during the Spot panchnama.
- Arvind Sarvankar (A22) has been named in the C.R.
No. 302/2006. He too has claimed ignorance with respect to the
correctness of the said C.R in his 313 statement (Question 155).
It is pertinent to note, that A11, A15 and A22 had filed an
Intervention Application No.284/2008 (Exh. 852) in Writ Petition
No.2473/2006, where they claimed to be a part of the encounter
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team.
- We may note, that Arvind Sarvankar (A22)’s appeal
being Criminal Appeal No. 1038/2013) stood abated, only qua
rd
him vide order dated 23 February 2021, in view of his demise,
pending the hearing of his appeal.
Having set-out the stand only of the appellants (police
personnel) as aforesaid, we now proceed to analyse each of the
circumstance, relied upon by the prosecution.
i. FORMATION OF SQUAD:
33 Learned counsel for all the appellants submitted
that the evidence on record, in particular, that of PW78-Bipin
Bihari, Addl C.P, West Region, would reveal that formation of
squads was illegal and as such, there was no evidence on record
to show that infact, such a squad as alleged by the prosecution
under Pradeep Sharma (OA1), existed. In support of the said
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submission, learned counsel for the appellants placed great
reliance on the evidence of PW78-Bipin Bihari and the admissions
of the said witness, that have come on record in his cross-
examination.
33.1 Per contra, according to the prosecution,
although the formation of a squad was illegal, nevertheless, such a
squad existed under Pradeep Sharma (OA1), and that the same
has been duly proved by the prosecution. In support thereof, the
prosecution relied on the evidence of Sanjivan Shinge (PW20),
Dhiraj Koli (PW25), Sumant Bhosale (PW32), Madan More
(PW43), Naresh Phalke (PW45), Milind More (PW55), Manohar
Desai (PW72), Prataprao Kharate (PW79), Samir Faniband
(PW82) and Ajendrasingh Thakur (PW87). According to the
prosecution, it is evident from the deposition of the said
witnesses, that the members of the said squad, were not doing
any work of the police station; were not participating in the
activities of the D.N. Nagar Police Station; that the members of
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the squad under Pradeep Sharma (OA1) were doing special
operations; and, that the staff including the officers of the D.N.
Nagar Police Station were not aware of the said special
operations. It was also submitted that since they were members of
the squad of OA1, there was no record of the work or activities
of the squad members and no information was recorded about
their departure/arrival etc. and that there were no entries made
about the work, they were doing. It is the prosecution case, that
the squad was using private vehicles and that some civilians were
also members of the said squad. According to the prosecution,
since reserve officers were already available at D.N. Nagar Police
Station, there was no necessity to call police personnel and
officers from other police station to D.N. Nagar Police Station, as
was done in the present case. Mr. Chavan, learned Spl. P.P.
submitted that although Bipin Bihari (PW78), Addl. CP, West
Region, has denied that any such squad was formed under
Pradeep Sharma (OA1), the evidence on record of other witnesses
is to the contrary i.e. it shows the existence of a squad under
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Pradeep Sharma (OA1). Mr. Chavan submitted that the existence
of the squad, would be evident from the fact that some of the
officers had joined D.N. Nagar Police Station on deputation, i.e.
Dilip Palande (A15) was deputed from Kalachowki Police Station
to D.N. Nagar Police Station in August 2006; Ratnakar Kamble
(A3) was deputed from Juhu Police Station to D.N. Nagar Police
th
Station on 29 July 2006; and Tanaji Desai (A2) and Vinayak
Shinde (A7) were deputed from Versova Police Station to D.N.
th
Nagar Police Station on 18 October 2006.
33.2 The following are the officers who have
deposed with respect to existence of a squad under Pradeep
Sharma (OA1):
PW87 - Ajendrasingh Thakur, Then Sr. PI, D.N. Nagar
Police Station :
34 Ajendrasingh Thakur (PW87), was attached to D.N.
Nagar Police Station as Sr.P.I in November 2006. He has stated,
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that at the relevant time, PI Taware (Administration), PI Pradeep
Suryawanshi (Investigation), PI Pradeep Sharma (Prevention), PI
Avadhoot Chavan (Community) were attached to D.N. Nagar
Police Station. The said witness has stated that PI Pradeep
Sharma was supposed to supervise the preventive work, such as
taking preventive actions under Sections 56, 57, 107 of Cr.P.C,
etc.; that there was a cabin behind the police station and that
Pradeep Sharma (OA1) would sit in the said cabin; that initially, it
was a store room, which was renovated by Pradeep Sharma
(OA1), as he did not have a cabin to sit in. He has stated that PI
Pradeep Sharma (OA1), PI Pradeep Suryawanshi (A9) and some
other officers were reserve officers.
34.1 According to Ajendrasingh Thakur (PW87), there was
a squad of the Addl. C.P., West Region in D.N. Nagar Police
Station and that the said squad included PI Pradeep Sharma
(OA1), API Palande (A15) and 3 to 4 police constables who had
come from outside i.e. Kamble (A3), Desai (A2) and Shinde (A7).
S.Q. Pathan / N.S. Chitnis 193/867
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He has stated that Palande (A15), Kamble (A3), Shinde (A7) and
Desai (A2) were appointed in the squad by orders of the Addl.
C.P., West Region and that it was an oral and not a written order.
st
The said witness has placed on record the order dated 21 August
2006 of the Office of the Sr. Inspector of Police, D.N. Nagar
Police Station, which bears the signature of PI Suryawanshi (A9).
He states that the said order was issued in the name of Sr. P.I.,
D.N. Nagar Police Station and that as per the oral order of Addl.
st
C.P, West Region, Bandra (West), Mumbai, with effect from 21
August 2006, PC 10502-Devidas Sakpal (A13), would work with
PI Pradeep Sharma (OA1) and PI Pradeep Suryawanshi (A9). The
said letter is marked at Exh. 668.
34.2 Ajendrasingh Thakur (PW87) has further stated that
two civilians would come to D.N. Nagar Police Station to meet PI
Pradeep Sharma i.e. `Bobby’ (A6) and `Dhabbu’ (A5). He has
identified both the said accused. PW87 has further deposed that
API Palande (A15) was deputed to D.N. Nagar Police Station in
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August 2006 from Kalachowki Police Station, Mumbai and was
attached to D.N. Nagar Police Station till April 2007. According
th
to PW87, on 11 November 2006, he was on day duty in the
police station and that since there was rehearsal of Umang
th
Programme, to be held on 12 November 2006 at Andheri Sports
Complex, he had gone to Andheri Sports Complex and remained
th
at the Sports Complex till 23:00 hrs. on 11 November 2006.
He has stated that there was a relay at 20:00 hrs. to 20:30 hrs. on
Wireless Channel of Peter I, that there was exchange of fire
between the police and a gunda, however, the name of the gunda
was not revealed. He has further stated that he was informed of
the same by his Operator. However, since the incident had taken
place within the jurisdiction of Versova Police Station and he was
having bandobast duty at the Andheri Sports Complex, he told
the Operator that it was not necessary for him to go there. PW87
has further in his evidence deposed that the squad of Pradeep
Sharma (OA1) used to do special operations under the directions
of the Addl. C.P, West Region. He has stated that as the work of
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the squad was confidential, he did not make any inquiry about
their work.
34.3 In the cross-examination, the said witness has stated
that Kalachowki Police Station was not within the jurisdiction of
West Region and that though Mr. Palande (A15) was deputed to
D.N. Nagar Police Station by the orders of the Add. C.P, West
Region, the Addl. C.P., West Region had no jurisdiction over
Kalachowki Police Station. It has come in the cross of the said
witness that he had not seen any order in writing in respect of
transfer of A15 from Kalachowki Police Station to D.N. Nagar
Police Station and that he had only seen the entry in the Station
Diary in which it was stated that Palande (A15) was transferred by
the orders of Addl. C.P, West Region. He has stated that
although, it was correct to state that A15 reported to him,
pursuant to which, the Station Diary entry was made, he did not
insist upon the written order about A15’s transfer.
S.Q. Pathan / N.S. Chitnis 196/867
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34.4 It is pertinent to note that PW87 in his cross-
examination, when questioned if he was deposing falsely with
respect to the special squad formed by orders of the Addl. C.P,
West Region, denied the same, stating that he was not deposing
falsely that API Palande (A15), Mr. Kamble (A3), Mr. Shinde (A7)
and Mr. Desai (A2) were working in a special squad; and that the
office order Exh. 668 bearing signature of A9, is not a fabricated
or a false document. He further admitted in the cross, that he
has stated in his statement before SIT that, as the work of the
squad was confidential, he did not make inquiry about their
work.
PW25 - PSI Dheeraj Koli attached to Juhu Police Station :
35 PW25- Dheeraj Koli was attached to Juhu Police
th
Station as PSI, since July 2006. He has stated that on 29 July
2006, he was working in night shift from 20:00 hrs to 8:00 hrs,
th th
on the next date i.e. 30 July 2006. He has stated that on 29
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July 2006, at about 20:30 hrs., one PC Kamble (A3) came to Juhu
Police Station and stated that Addl.C.P, West Division, had
directed him to assist PI Pradeep Sharma (OA1) of D.N. Nagar
Police Station and therefore, necessary Station Diary entry for
leaving D.N. Nagar Police Station be made. He stated that PSI
Nalawade was maintaining the Station Diary and as such, he
requested him to make the said entry. He has stated that
accordingly, PSI Nalawade made the said Station Diary entry.
The said witness has identified the handwriting of PSI Nalawade
and has deposed that the said entry is as per his say. The said
entry is at Exh. 228.
35.1 It has come in the cross-examination of the said
witness that the entry made by PSI Nalawade was made in the
presence of PC Kamble (A3) and that he had asked PSI Nalawade
to make entry of what PC Kamble was stating and that the
information of deputation of Kamble was given by Kamble to him
i.e. PW25 and that except the Station Diary i.e. Exh. 228, there is
S.Q. Pathan / N.S. Chitnis 198/867
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no record of his conversation with Kamble about his deputation.
He has, further in his cross-examination, admitted that he did not
ask the Sr.PI to verify, and neither did he verify whether PC
Kamble had joined duty as per deputation. The said witness has
denied the suggestion that he was not concerned with Exh. 228
and that the said entry i.e. Exh. 228 was made at the behest of
SIT.
PW79- API Pratap Kharate attached to D.N. Nagar Police
Station :
36 PW79- Pratap Kharate was attached to D.N. Nagar
Police Station at the relevant time as Police Sub-Inspector i.e.
rd rd
between the period 3 June 2006 to 3 June 2009. He has stated
th
that on 18 October 2006, he was S.H.O during day time at D.N.
Nagar Police Station and that at about 19:00 hrs, PC Shinde (A7)
Buckle No. 31743 and PC Tanaji Desai (A2) Buckle No. 31241
came to him along with a memo from Versova Police Station.
The memo stated that they were deputed to D.N. Nagar Police
Station. The said witness has stated that he produced both of
S.Q. Pathan / N.S. Chitnis 199/867
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them before Sr. P.I Ajendrasingh Thakur (PW87) at D.N. Nagar
Police Station and thereafter, as per the instructions of PI
Ajendrasingh Thakur, he effected an entry in the Station Diary in
the handwriting of his Relief Officer, PSI Samir Faniband. He has
stated that the said entry was made as per his instructions. The
said witness produced the original Station Diary i.e. the entry
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dated 18 October 2006 at Serial No. 33 in the handwriting of
ASI Samir Faniband. The entry was accordingly marked as Exh.
626. The xerox copy of the said entry was placed before the trial
Court after verifying that the contents therein were true and
correct as per the original and accordingly, the xerox copy was
marked as Exh. 626A. The said witness has also identified the
memo received from Versova Police Station as being the same i.e.
Exh. 613. The said witness has also identified Tanaji Desai (A2)
and Vinayak Shinde (A7).
36.1 The said witness in his cross-examination has
admitted that he had not received any letter from Addl. C.P,
S.Q. Pathan / N.S. Chitnis 200/867
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Western Region addressed to D.N. Nagar Police Station and that
neither had he made any inquiry about it to the office of the
Addl. CP, West Region. The said witness has also admitted that it
is not mentioned in the entry that Tanaji Desai (A2) and Vinayak
Shinde (A7) had brought the memo to him in D.N. Nagar Police
Station. The said witness has explained that he could have
himself made the entry, however, he had received instructions to
get some work done by the probationer PSI and as such,
instructed the probationer PSI Samir Faniband to write down the
entry. He has stated that the entry at Serial No. 33, Exh. 626
does not mention that Tanaji Desai and Vinayak Shinde were
produced before Sr.PI of D.N. Nagar Police Station. The said
witness has denied the suggestion that he has never seen Exh. 613
and that the said entry i.e. Exh. 626 was made by him at the
behest of SIT.
PW20- Sanjivan Shinge, Head Constable who assigned
duties at D.N. Nagar Police Station :
S.Q. Pathan / N.S. Chitnis 201/867
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37 PW20-Sanjivan Shinge has stated that he was working
in the D.N. Nagar Police Station as in-charge Head Constable
from 2004 to 2010. He has stated that it was his duty to allot
duties to police personnel of the police station and that the
allotment of duties was mentioned in the Duty Register
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maintained at the police station. He has stated that on 11
November 2006, he was on duty and had made entries about the
duties assigned to the police personnel, in the Duty Register. The
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said witness has produced the Duty Register of 11 November
2006, which is in his handwriting. He has identified the contents
therein, and as such the relevant entries are marked as Exh. 208
and the copy of the entry as 208A. He has stated that in Column
No. 1, his buckle No.9246 appears as in-charge Head Constable
and in Column No. 6 as Assistants to PIs are mentioned. He has
stated the names of the constables, who were assisting the PIs at
the relevant time. There is an entry of Buckle No. 33492 (A20).
He has also identified the entries made in the Duty Register of
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12 November 2006, which are in his handwriting. The said
S.Q. Pathan / N.S. Chitnis 202/867
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entries have been marked as Exh. 209 and copy as Exh. 209A.
He has stated that prior to 2006, PI Pradeep Sharma (OA1) had
informed him that his (PW20’s) office premises, which was inside
the police station building was required by him (OA1) and that
he (PW20) was given alternate premises for his office outside the
Police Station building, pursuant to which, he shifted to the new
office, which was outside the police station building. He has
stated that PI Pradeep Sharma (OA1) had no charge of any
department of the police station, with him and that he had no
assistant. He has further stated that there were three constables
who were on deputation at D.N. Nagar Police Station i.e. Tanaji
Desai (A2), Vinayak Shinde (A7) and Ratnakar Kamble (A3) i.e.
A2 and A7 were deputed from Versova Police Station and A3
from Juhu Police Station. He has stated that he received orders of
deputation of Desai (A2) and Shinde (A7), whereas, Kamble (A3)
had joined duty pursuant to an entry made in the Station Diary.
PW20 has further stated that these police personnel were working
under Pradeep Sharma (OA1) and that besides the said three
S.Q. Pathan / N.S. Chitnis 203/867
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constables, there was one more constable Shri Kadam (A16)
working with Pradeep Sharma, however, constable Kadam (A16)
was neither on deputation nor was he from D.N. Nagar Police
Station. PW20-Sanjivan Shinge has further stated that he was not
assigning duties to these constables and hence, entries in that
regard were not made by him, in the Duty Register. He has
further stated that though he received information with respect to
constables, whose leave was sanctioned, he was not receiving
information about the leave of the constables, who were on
deputation.
37.1 In the cross-examination, the witness has admitted
that there is nothing in writing to show that Tanaji Desai (A2),
Ratnakar Kamble (A3), Vinayak Shinde (A7), Prakash Kadam
(A16) were working under Pradeep Sharma (OA1) and that as
regards them, there was no record maintained at the police
station about their arrival, departure and/or attendance, nor was
there any entry about what work these constables were doing.
S.Q. Pathan / N.S. Chitnis 204/867
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37.2 Except the aforesaid para on cross, there is no cross-
examination of this witness.
38 In addition to the aforesaid witnesses, there are four
more witnesses, all constables attached to D.N. Nagar Police
Station, who have spoken about the squad of OA1 The said
witnesses are PW32-Sumant Bhosale; PW43-Madan More;
PW45-Naresh Phalke; and PW55-Milind More.
PW32 – Sumant Bhosale :
39 PW32-Sumant Bhosale was working in D.N. Nagar
Police Station, at the relevant time, as Police Naik in the
Detection Branch headed by Crime PI i.e. Pradeep Suryawanshi
(A9). He has stated that OA1 was working in D.N. Nagar Police
Station and that he alongwith his staff was occupying the old duty
officer’s room. He has stated that the staff of OA1 was deputed
S.Q. Pathan / N.S. Chitnis 205/867
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from other police stations and that OA1 and his staff were not
doing any work of D.N. Nagar Police Station; and that OA1 and
his staff was not participating in the activities of D.N. Nagar
Police Station. PW32 has identified two of OA1’s staff i.e. Tanaji
Desai (A2) and Ratnakar Kamble (A3).
39.1 PW32 has stated that even when he went to Mid-
town Hotel, where Anil Bheda was confined, the Qualis vehicle
which was a private vehicle, was used by the squad of OA1. He
has stated that the said vehicle would be regularly parked outside
the office of OA1 and that Virendra @ Viru would regularly visit
the office of OA1; that one person was driving the vehicle and
that Virendra was sitting next to the driver in the said vehicle.
He has stated that he was told by A9 to sit in the green Qualis
vehicle, at about 22:30 hrs, pursuant to which he went to
Bhatwadi at Ghatkopar in the said vehicle, alongwith Milind
More (PW55). According to PW32, the members of the squad of
OA1, Ratnakar Kamble (A3) and Tanaji Desai (A2) were present
S.Q. Pathan / N.S. Chitnis 206/867
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there. He has deposed that the members of the said squad were
deputed from other police stations and that the Qualis, a private
vehicle was used by the squad of OA1.
39.2 It is pertinent to note that there is no cross of the said
witness i.e. PW32 with regard to what is deposed by him with
respect to Tanaji Desai (A2) and Ratnakar Kamble (A3) being
deputed to D.N. Nagar Police Station; that OA1 and his staff,
who were deputed from other Police Station, were not
participating in the activities of D.N. Nagar Police Station; that
they were members of the said squad; and that the said members
of the squad were deputed from other police stations and that the
Qualis, a private vehicle was used by the squad of OA1.
PW43–Madan More :
40 PW43-Madan More has stated that he was attached
to D.N. Nagar Police Station and was working as Police Naik
S.Q. Pathan / N.S. Chitnis 207/867
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since 25 November 2005 in the Detection Branch, of which
Pradeep Suryawanshi (A9) was PI (Crime). He has stated that
OA1 used to sit in the room which was behind the police station,
that OA1 was in-charge of the squad, in which, there were
hawaldars deputed from other police stations; and that the said
squad was not doing any work of D.N. Nagar Police Station.
40.1 PW43 has further stated that he met one Dhabbu
(A5), who was working with OA1, when he went to Mid-town
Hotel (where Anil Bheda was confined); that the said Dhabbu
(A5) would sit outside the office of OA1 and would make
inquiries with the persons who came to meet OA1 and then grant
entry to the said persons. He has further stated that Ratnakar
Kamble (A3), a police hawaldar, was working on deputation in
the squad of OA1. Accordingly, he has identified A3 and A5.
40.2 Similarly, in the cross-examination of this witness,
there is no cross whatsoever with respect to OA1 being in-charge
S.Q. Pathan / N.S. Chitnis 208/867
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of a squad, in which there were hawaldars deputed from other
police stations and that the said staff was not doing any work of
D.N. Nagar Police Station and that Dhabbu (A5) would sit
outside the office of OA1 and after making inquiries, would grant
entry to persons to meet OA1; and that A3, a police hawaldar was
working on deputation with OA1.
PW45–Naresh Phalke :
41 PW45- Naresh Phalke was attached to D.N. Nagar
Police Station at the relevant time. He has stated that OA1-PI
Pradeep Sharma was in-charge of squad and he was not doing any
work of the police station; that constables of other police stations
were deputed in the squad and that the persons deputed in the
squad were not doing any official work in the police station.
41.1 PW45 is also a witness to the confinement of Anil
Bheda at Mid-town Hotel. However, this witness has also stated
S.Q. Pathan / N.S. Chitnis 209/867
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in para 3 of his evidence that Virendra was a driver and was
working with the squad and was not attached to their police
station.
41.2 In the cross-examination, although a suggestion was
made to the said witness that he was deposing falsely that there
was a squad of OA1 of constables of other police stations and that
the said persons were not doing any work of D.N. Nagar Police
Station, the same has been denied by the said witness.
PW55 - Mr. Milind More:
42 PW55-Milind More, a constable was attached to
Detection Branch, D.N. Nagar Police Station, Mumbai, of which
Pradeep Suryawanshi (A9) was the P.I (Crime). He has stated that
OA1 used to sit in the Office of the D.N. Nagar Police Station;
that previously there was one room for the duty in-charge; that
that the said room was demolished and a new room was
S.Q. Pathan / N.S. Chitnis 210/867
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constructed there, for the police squad working under Pradeep
Sharma (OA1). PW55 has further stated that there was a squad
working under OA1, who were on deputation from other police
stations and that the said squad did not do any work of D.N.
Nagar Police Station. He has further stated that no one from D.N.
Nagar Police Station used to visit the room of OA1 and that
people from outside the police station would visit the room of
OA1. He has further stated that there was a Qualis, which was
being used by the squad of OA1 and that the said vehicle would
remain outside the office of OA1.
42.1 With respect to squad, the only cross-examination of
nd
this witness relates to omissions in his statement dated 2
February 2010, wherein, he has not disclosed that the encounter
was done by OA1 and that A9 was the member of the said squad
of OA1. There is no suggestion nor cross of PW55, with respect
to what has been deposed by him i.e. with respect to deputation
of persons from other police stations to work in the squad under
S.Q. Pathan / N.S. Chitnis 211/867
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OA1; that the said squad would not do any work of D.N. Nagar
Police Station; and, that there used to be one Qualis used by
OA1, which used to remain outside the office of OA1.
42.3 The aforesaid four witnesses i.e. PW32-Sumant
Bhosale, PW43-Madan More, PW45-Naresh Phalke and PW55-
Milind More have been examined by the prosecution to prove
both, confinement of Anil Bheda as well as on the point of
existence of the squad of OA1.
43 Apart from the aforesaid, there is another witness i.e.
PW63–Arun Apte, who has also spoken with respect to the
existence of a squad.
PW63 – Arun Vasantrao Awate
44 PW63 was working as an ACP, D.N. Nagar Division
under Zone-IX, at the relevant time. He has stated that D.N.
S.Q. Pathan / N.S. Chitnis 212/867
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Nagar Police Station, Oshiwara Police Station and Versova Police
Station falls within the jurisdiction of D.N. Nagar Division. As far
as existence of a squad is concerned, PW63 has stated that at the
relevant time OA1 alongwith some police personnel served in a
special squad and worked as per the directions of the superior
officer; that as per his knowledge A15 and some constables were
on deputation in the squad of OA1; that as per the orders of
Addl. CP, Western Region (PW78), the said squad was formed and
that A15 was one of the member of the said squad. PW63 has
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further deposed that on 11 November 2006 when he was at the
Andheri Sports Complex in connection with a programme
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“Umang” to be held on 12 November 2006, Vijay Sonawane,
Senior P.I, of the Versova Police Station met him at the venue and
informed him about an exchange of fire between the police and
accused within the jurisdiction of the Versova Police Station; that
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on the next day i.e. on 12 November 2006, he learnt that one
Ramnarayan @ Lakhanbhaiya was killed by a joint team from
Versova Police Station and D.N. Nagar Police Station; and that on
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11 November 2006, he had not received any information as
regards Ramnarayan @ Lakkhanbhaiya.
44.1 In his cross-examination vis-a-vis formation of a
squad, he has stated that he had no occassion to see any orders as
regards formation of a special squad under OA1 by the superior.
As far as station diary entries with respect to some of the accused
who were sent on deputation, PW63 has stated in his cross that
he does not remember whether there are any such entries nor
had he any occasion to inquire with the Senior P.I. of Oshiwara
Police Station, Versova Police Station and D.N. Nagar Police
Station, as to on whose orders the said officers/personnel were
deputed in the special squad under OA1. He has further admitted
in his cross that he did not issue any letter to the superior officer
or to the P.I. of the police station under him, for making inquiry
as to on whose orders the special squad was formed or
constituted. PW63 voluntarily deposed that he had knowledge
that the squad was formed by the orders of the Addl. C.P. He has
S.Q. Pathan / N.S. Chitnis 214/867
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admitted that it was correct to say that a special squad which
included officers from different police stations could not be
constituted without written authority nor he had any occassion to
see the orders of the Addl. C.P.
44.2 Although, PW63 has stated in his cross in para 24 that
he had orally asked OA1 as to by whose orders the special squad
was formed, since OA1 was attached to the police station within
his jurisdiction, he did not ask the Senior P.I of any of the police
stations from his jurisdiction to furnish record as regards to the
formation of the special squad and deputation of the officers to
the said squad. PW63 has voluntarily deposed that he had
knowledge that a squad was formed by the orders of the Addl.
C.P (PW78) and that he had no occasion to inform anybody as
regards the formation of the said squad, till his statement was
th
recorded by the SIT on 5 July 2010. The said witness has
denied the suggestion that he was falsely deposing, that as per the
orders of the Addl. C.P (Western Region) PW78, a special squad
S.Q. Pathan / N.S. Chitnis 215/867
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was formed and OA1 alongwith some police personnel was
serving in the said special squad and that A15 was also a member
of the said special squad.
45 Infact, all the aforesaid witnesses, except PW78-Bipin
Bihari have deposed with respect to the existence of a squad
under OA1 and that some of the witnesses have deposed that
police from different police stations were deputed to D.N. Nagar
Police Station on the orders of PW78-Bipin Bihari, Addl.C.P, West
Region, to work in the squad of OA1.
46 The evidence of these witnesses as stated aforesaid,
clearly shows the formation and existence of a squad under OA1,
albeit being illegal.
PW78- Bipin Bihari, Addl. CP, West Region :
47 PW78-Bipin Bihari was posted as the Addl. C.P,
S.Q. Pathan / N.S. Chitnis 216/867
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Western Region, at the relevant time. He had three zones under
him i.e. Zone-VIII, Zone-IX and Zone-X; each zone having 2 to 3
divisions i.e. in all, there were 8 to 9 divisions under the
jurisdiction of the said witnesses i.e. around 19 to 20 police
stations within his jurisdiction. He has stated that at the relevant
time, he was using mobile No. XXXXXX3333 and that the said
number was not in his name but in the name of one of his friend
i.e. Ketan Kanakiya. He has further stated that the said number
was given to him by Kanakiya and was probably in the name of
his company; and that the said number was with him since 2003-
2004 onwards till 2007. He has stated that D.N. Nagar Police
Station, Versova Police Station and Oshiwara Police Station were
within his jurisdiction at the relevant time and that he knew PI
Pradeep Sharma (OA1) from Crime Branch and Pradeep
Suryawanshi (A9).
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47.1 He has stated that on 11 November 2006, he was in
his office, on morning duty and in the evening, he was at
S.Q. Pathan / N.S. Chitnis 217/867
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Andheri Sports Complex, where `Umang Programme’ was to be
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held on 12 November 2006. He has stated that for the purpose
of rehearsal and security arrangements, he being in-charge of the
said programme, was present at the venue. He has stated that he
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probably was at the venue on 11 November 2006 upto 22:00
hrs, when he learnt about an incident i.e. firing between police
and some criminals and that the firing had taken place within the
jurisdiction of Versova Police Station.
47.2 Although, PW78, was not questioned on formation of
squad in his examination-in-chief, in his cross-examination, PW78
has denied the formation of any special squad during January
2006 to June 2007 and has stated that it was banned by the
previous CP. He has further stated in his cross-examination that
no special squad under PI Pradeep Sharma (OA1) was formed
under his oral orders. He has also admitted that no police
officers or staff were deputed by him to D.N. Nagar Police
Station to be part of the special squad under PI Pradeep Sharma
S.Q. Pathan / N.S. Chitnis 218/867
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(OA1). He has further in his cross-examination deposed that no
police officers or staff could be transferred from one police
station to another, by oral orders and unless there are orders in
writing; and, that he had not issued any oral orders of such
officers or staff from one police station to another police station.
48 It is pertinent to note that the learned trial Judge has
rejected the circumstance of formation of squad under OA1, by
placing implicit reliance only on the evidence of PW78-Bipin
Bihari, Addl.C.P, without even considering the other evidence i.e.
of all the other witnesses vis-a-vis formation of squad, that had
come on record. It is also pertinent to note, from a perusal of
the evidence of PW78, that formation of squads was banned by
the previous C.P, and as formation of squads was illegal, there was
no question of PW78 admitting that under his oral direction, any
such squad was formed. What is pertinent to note, is, that the
said evidence of PW78 is contrary to the evidence of the other
witnesses, which has come on record i.e. the evidence of
S.Q. Pathan / N.S. Chitnis 219/867
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Ajendrasingh Thakur (PW87), Dhiraj Koli (PW25), Prataprao
Kharate (PW79) and Sanjivan Shinge (PW20), PW32-Sumant
Bhosale, PW43-Madan More, PW45-Naresh Phalke, PW55-
Milind More, PW63 – Arun Awate and the documentary evidence
in support thereof i.e. of deputation of some of the constables to
D.N. Nagar Police Station, to work under or assist Pradeep
Sharma (OA1).
49 The documentary evidence relied upon by the
prosecution, as deposed to by the aforesaid witnesses are at
Exhibits 668, 228, 626, 613, 219, 208 and 209.
50 It is pertinent to note, that PC Ratnakar Kamble (A3)
has not denied joining D.N. Nagar Police Station or his presence
in the encounter team, but has questioned what was deposed to
by PW25-PSI Koli, that Kamble (A3) had informed him of the
Addl. C.P. asking him to go on deputation to D.N. Nagar Police
Station to assist Pradeep Sharma (OA1). Although, the entry in
S.Q. Pathan / N.S. Chitnis 220/867
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the Station Diary (Exh. 228) has been challenged by Ratnakar
Kamble (A3), we do not see any merit in the said challenge,
inasmuch as, it is an entry made in the course of the official duty
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by PW25. The entry of Juhu Police Station dated 29 July 2006
i.e. Exh. 228 is as under :
| fnukad | ?kVuk | ‘ksjk |
|---|---|---|
| 20-35 | ¼54½ iks- m- fu- dksGh<br>fuosnu djrkr fd- ek- vIij<br>iksyhl vk;qDr] if’pe<br>izknsf’kd foHkkx] ckanzk] ;kaP;k<br>vkns’kkus iks-f’k-dz<br>31963@lk-fo- gs iks-fu-<br>izfni ‘kekZ fM-,u-uxj iks-<br>Bk.ks ;kaP;kdMs drZO;koj<br>gks.;kl jokuk | Iks-f’k-d 31963@<br>lk-fo- gs fM-,u-<br>uxj ;sFks<br>fu;qDrhoj jokuk |
English translation of the extract from Station Diary
of Juhu Police Station, written in Marathi, reads thus :
S.Q. Pathan / N.S. Chitnis 221/867
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| 20:35 | (54) P. S. I. Koli states that, P. C.No.<br>31963 left for reporting the duty to P. I.<br>Pradeep Sharma, D.N. Nagar Police<br>Station, as per the directions of the<br>Additional Commissioner of Police,<br>Western Territorial Department, Bandra. | P.C.No.31963 left<br>for reporting the<br>duty at D.N.<br>Nagar on<br>deputation. |
|---|
(Ratnakar Kamble (A3) is P.C.No.31963)
51 Considering the aforesaid, i.e. the evidence of PW25-
Dheeraj Koli and the Station Diary entry (Exh. 228), the
contemporaneous record i.e. the disclosure made by Ratnakar
Kamble (A3) to him, that the Addl. C.P, West Region had directed
him to assist Pradeep Sharma (OA1) of D.N. Nagar Police Station,
and there being no challenge to the said disclosure, we find no
reason to disbelieve his testimony, that Kamble (A3) had been sent
on deputation to assist Pradeep Sharma (OA1) of D.N. Nagar
Police Station. The said evidence also stands fortified by the entry
at Exh. 228, which entry has been identified by this witness.
Although, learned counsel for the appellants urged that the
witness did not verify with the superiors, the question of verifying
S.Q. Pathan / N.S. Chitnis 222/867
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with the superiors, in this case Addl. C.P, West Region (PW78),
would not arise. PW25-Dhiraj Koli, was a PSI attached to Juhu
Police Station. The said witness performed his duty by making
noting in the Station Diary, as disclosed by A3 and would have
no reason to doubt what was disclosed by A3. It is pertinent to
note, that no officer would have the courage to question his
superior officer, in the present case, the Addl. C.P, West Region
(PW78) whether, A3 was deputed by him to D.N. Nagar Police
Station or not. It would amount to insubordination and as such,
we find no merit in the appellants’ submission that the
information received was not verified by PW25, from the
superior officers. The entry was made in the official course in the
station diary and there is no reason to disbelieve the same.
52 PW79 - Prataprao Kharate was attached to D.N.
Nagar Police Station as PSI, at the relevant time. He has deposed
to with respect to A7 and A3 joining from Versova Police Station
to D.N. Nagar Police Station. The said witness produced A7 and
S.Q. Pathan / N.S. Chitnis 223/867
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A3 before PW87–Sr. P.I. Ajendrasingh Thakur, at D.N. Nagar
Police Station and an entry to that effect was made in the Station
Diary, as per his (PW79’s) instruction. The entry in the Station
Diary has been exhibited, as Exhibits 626.
52.1 The Station Diary i.e. Exh. 626 at Sr. No. 33 deposed
to by PW79-API Pratap Kharate, attached to D.N.Nagar Police
Station, reads thus :
| fnukad | ?kVuk 18-10-06 | ‘ksjk |
|---|---|---|
| ¼33½ | iks- m- fu- [kjkMs vls fuosnu<br>djrkr dh ek- vIij iksfyl<br>vk;qDr eks- if’pe izknsf’kd<br>foHkkx] eqacbZ ;kaP;k<br>vkns’kkUo;s olksZok iksyhl<br>Bk.ksl use.kwfdr vlysys iks-<br>f’k- 31241@rkukth HkkÅlks<br>nslkbZ o 31743@ fouk;d<br>ckGklkgsc f’kans gs nk-ukS-uxj<br>iksyhl Bk.ks ;sFks izfrfu;qDrhoj<br>vkt jksth gtj >kys- | Ikks-f’k-<br>31241]<br>31743<br>izfrfu;qDrho<br>j gtj<br>>kysckcr<br>iks-fu-<br>iz’kklu<br>foHkkfx;<br>dkjdqu uksan<br>?ks.ks- |
S.Q. Pathan / N.S. Chitnis 224/867
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English translation of the extract from Station Diary,
written in Marathi, reads thus :
| Date | Incident 18.10.06 | Remark |
|---|---|---|
| (33) | P. S.I. Kharade states that, as per the<br>directions of the Additional<br>Commissioner of Police, Western<br>Territorial Department, Mumbai, P.<br>C. 31241/Tanaji Bhauso Desai and<br>31743/Vinayak Balasaheb Shinde<br>attached to Versova Police Station,<br>remained present at D.N. Nagar<br>Police Station on deputation. | Regarding P. C. 31241<br>and 31743 remaining<br>present on deputation.<br>Divisional Clerk<br>attached to P. I.<br>Administration<br>shall make entry. |
th
52.2 Relevant portion of letter dated 18 October 2006,
(Exh. 613), sent by Senior P.I of Versova Police Station, Vijayrao
Sonawane, to Senior P.I. D.N. Nagar Police Station reads thus :
ßmijksDr fo"k;kl o lanHkkZl vuql:u iks-f’k-dz-
31241 rkukth HkkÅlks nslkbZ o 31743 fouk;d
ckGklkgsc f’kans ;kauk nk-ukS-uxj iksyhl Bk.ks ;sFks
izfrfu;qDrhoj ek- vij iksyhl vk;qDr] if’pe
izknsf’kd foHkkx eqacbZ ;kauh nqj/ouhOnkjs vknsf’kr dsY;kus
ueqn iksyhl veynkjkuk nk-ukS-uxj iksfyl Bk.ks ;sFks
gtj gks.;kdjhrk vkt fnukad 18@10@2006 jksth
S.Q. Pathan / N.S. Chitnis 225/867
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dk;ZeqDr dj.;kr vkys vkgs-Þ
English translation of the above extract, reads thus :
“ In connection with the abovenoted subject and
reference it is submitted that as the Additional
Commissioner of Police, Western Territorial Department,
Mumbai, directed on telephone to depute the police
officials by names Tanaji Bhauso Desai, P. C. No. 31241
and Vinayak Balasaheb Shinde, 31743 at D.N. Nagar
Police, they are relieved from their duties on this day,
dated 18.10.2006 to remain present at the D.N. Nagar
police station.”
53 It is pertinent to note that Tanaji Desai (A2) and
Vinayak Shinde (A7) have challenged the entries made in the
Station Diary and the memo of their transfer from Versova Police
Station on deputation to D.N. Nagar Police Station. However,
despite the challenge, Tanaji Desai (A2) has infact supported C.R.
No. 302/2006 i.e. that it was a genuine encounter. As far as
Vinayak Shinde (A7) is concerned, he has pleaded ignorance of
C.R. No. 302/2006. It is the prosecution case that Vinayak
Shinde (A7) was party to the abduction of the deceased and Anil
Bheda. Nothing is elicited in cross of PW79-API Pratap Kharate,
S.Q. Pathan / N.S. Chitnis 226/867
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so as to discredit the testimony of this witness with regard to
what has been deposed to by him and the entry in the Station
Diary and the letter. Both the said exhibits reveal that A7 and A2
were sent to D.N. Nagar Police Station, on deputation on the oral
direction of the Addl. C.P., West Region (PW78) from Versova
Police Station.
54 Similarly, from a perusal of the evidence of PW20-
Sanjivan Shinge, it is evident that Tanaji Desai (A2), Ratnakar
Kamble (A3), Vinayak Shinde (A7), Prakash Kadam (A16) were
on deputation and were working with Pradeep Sharma (OA1).
The said evidence has gone unchallenged. PW20-Sanjivan Shinge
has categorically deposed that he was not assigning duties to these
persons and hence there were no entries made by him in the Duty
Register maintained by him. This has been again admitted by
PW20, in his cross. As noted earlier, the formation of squad was
illegal and therefore, the question of there being anything in
writing, would not arise. The evidence of PW20 also to the
S.Q. Pathan / N.S. Chitnis 227/867
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extent that he was not receiving information about the leave of
these constables, who were on deputation, has gone
unchallenged.
55 PW87-Ajendrasingh Thakur has deposed with
respect to letters/order issued in the name of Senior P.I., D.N.
Nagar Police Station and has stated that as per the oral order of
Addl. C.P, West Region, A13 was to work with OA1 and A9.
The relevant portion of the said letter, which is marked in the
evidence of PW87 as Exh. 668 is reproduced herein-under:
“ OFFICE ORDER
As per the oral Order of Addl. Commissioner of
Police, West Region, Bandra (W), Mumbai, P.C.No.
10502/D.N.Nagar Division, (Devidas G. Sakpal) has been
working with P.I. Shri Pradeep Sharma and P.I. Pradeep
Suryawanshi w.e.f. 21.8.2006.
Sd/-
Sr. Inspector of Police,
D.N. Nagar Police Station,
Mumbai”
56 From a perusal of the aforesaid, it is evident that there
S.Q. Pathan / N.S. Chitnis 228/867
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was a squad, albeit, illegal, to assist Pradeep Sharma (OA1).
PW87-Ajendrasingh Thakur, in his evidence, has clearly stated
that there was a squad of PI Pradeep Sharma (OA1) and that 4
police constables had come from outside i.e. Tanaji Desai (A2),
Ratnakar Kamble (A3), Vinayak Shinde (A7) and Dilip Palande
(A15) and so was Devidas Sakpal (A13). According to PW87, the
said appellants/accused were appointed by the orders of the Addl.
C.P, West Region (PW78) and that it was an oral and not a
written order. PW87 has further deposed that the squad of
Pradeep Sharma (OA1) would do special operations under the
directions of the Addl. C.P, West Region (PW78) and that the
work of the said squad was confidential and as such, he did not
make any inquiry about their work. It is pertinent to note, that
there is absolutely no cross-examination of the said witness nor
any suggestion, as to what was deposed by PW87-Ajendrasingh
Thakur, with respect to formation of the squad under Pradeep
Sharma (OA1). Similarly, PW25-Dheeraj Koli has in his evidence,
stated that PC Ratnakar Kamble (A3) was attached as a PSI to
S.Q. Pathan / N.S. Chitnis 229/867
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Juhu Police Station. He has stated that on 29 July 2006, at
20:30 hrs., PC Kamble (A3) came to him, when he was attached
to Juhu Police Station and disclosed that the Addl.C.P, West
Region, had directed him to assist PI Pradeep Sharma of D.N.
Nagar Police Station and therefore, necessary Station Diary entry
of leaving for D.N. Nagar Police Station be made. He has stated
that accordingly, PSI Nalawade, who was maintaining the Station
Diary made an entry, as requested by him. The said witness has
identified the handwriting of PSI Nalawade and has deposed that
the said entry, which is at Exh. 228 was as per his say. Although,
the said witness was confronted with the said document i.e. Exh.
228, nothing substantial is elicited in his cross-examination, so as
to disbelieve his testimony with respect to the said entry. We
have, while considering the evidence of PW25, as stated
aforesaid, reproduced Exh. 228 with respect to the entry made at
the instance of the said witness, of leaving Juhu Police Station and
joining D.N. Nagar Police Station and find no reason to disbelieve
the entry so made.
S.Q. Pathan / N.S. Chitnis 230/867
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57 PW79-Pratap Kharate, attached to D.N. Nagar Police
Station has also placed on record the memo handed over by
Vinayak Shinde (A7) and PC Tanaji Desai (A2), who had come
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from Versova Police Station to D.N. Nagar Police Station on 18
October 2006. At the instance of Ajendrasingh Thakur (PW87),
PW79 effected an entry in the Station Diary, in the handwriting
of PSI Samir Faniband. He has stated that the said entry was
made as per his instructions. The said witness has produced the
original Station Diary i.e Exh. 626, relevant entry being at Serial
No. 33, which is reproduced in the evidence of PW79. Although,
the said witness, in his cross-examination, has admitted that he
had not received any letter from Addl. C.P addressed to D.N.
Nagar Police Station, nor did he make any inquiry about it at the
office of the Addl. C.P, West Region (PW78), it is pertinent to
note that the said appellants i.e. Vinayak Shinde (A7) and Tanaji
Desai (A2) had produced a memo (Exh. 613) and as such, there
was no reason for the said officer to disbelieve what was disclosed
S.Q. Pathan / N.S. Chitnis 231/867
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by his colleagues, also police officers i.e. Vinayak Shinde (A7) and
Tanaji Desai (A2). Questioning a Senior Officer, i.e. Addl. C.P,
West Region, would amount to insubordination. Infact, though
the said appellants/accused i.e. Vinayak Shinde (A7) and Tanaji
Desai (A2) have challenged the entries made in the Station Diary
and the memo of their transfer from Versova Police Station to
D.N. Nagar Police Station, Tanaji Desai (A2) has infact supported
C.R. No. 302/2006 i.e. it was a genuine encounter, whereas,
Vinayak Shinde (A7) has pleaded ignorance of C.R. No.
302/2006. Both the said accused have not seriously disputed that
they were working at D.N. Nagar Police Station at the relevant
time. Infact, there is no reason to disbelieve the testimony of
PW79-API Prataprao Kharate and the Station Diary entry
produced by him at Exh. 626 and the memo (Exh. 613).
Similarly, the evidence of PW20-Sanjivan Shinge, who was the
Head Constable at D.N. Nagar Police Station and would assign
duties, cannot be disbelieved, inasmuch as, he has categorically
stated in his evidence that Tanaji Desai (A2), Ratnakar Kamble
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(A3), Vinayak Shinde (A7), Dilip Palande (A15) were on
deputation and were working with Pradeep Sharma (OA1). The
said evidence has gone unchallenged. Infact, the evidence of
PW20-Sanjivan Shinge that he was not assigning any duties to
these persons and hence, no entries were made by him in the
Duty Register maintained by him, has also been admitted by the
said witness, in his cross-examination. As is evident, formation of
squad was illegal and therefore, the question of there being
anything in writing, would not arise. Even the evidence of
PW20-Sanjivan Shinge that he was not receiving any information
about the leave of these constables i.e. Tanaji Desai (A2),
Ratnakar Kamble (A3), Vinayak Shinde (A7), Dilip Palande (A15),
who were on deputation, has gone unchallenged. Each of these
witness, as stated aforesaid, have corroborated each other with
respect to the deputation of some of the appellants/accused, as
discussed herein-above to D.N. Nagar Police Station, to assist
Pradeep Sharma (OA1) i.e. to work in his squad and about the
existence of a squad under OA1 and as such, we find no reason to
S.Q. Pathan / N.S. Chitnis 233/867
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disbelieve the overwhelming evidence that has come on record,
with respect to the same.
58 PW78-Bipin Bihari, Addl. C.P, West Region, for
obvious reasons, has denied the existence of the squad, since the
formation of squads was banned by the previous CP and as such,
was illegal. It is obvious, that PW78 was suppressing the same,
lest, that would have led to some complications for him. PW78
has not only denied formation of squad under OA1, but has also
denied deputing police personnel from other police stations to
D.N. Nagar Police Station, despite the evidence of other
witnesses, including entries in station diaries pointing to the
contrary. Station diary entries reveal that the deputation was
done on the oral orders of the Addl. C.P, West Region. The
prosecution relied on several calls exchanged between OA1
(which was on A5’s name) and PW78. OA1 has denied using
A5’s mobile and PW78 has denied knowing A5 - Hitesh Solanki
@ Dhabbu. This, we will deal in greater detail whilst dealing
S.Q. Pathan / N.S. Chitnis 234/867
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with the circumstance of CDR’s/Murder. Thus, in the facts,
PW78 cannot be termed as a reliable witness and as such it is not
possible for us to place any reliance, much less implicit reliance
on his evidence having regard to the overwhelming evidence on
record to show that a squad, albeit illegal existed under OA1.
59 There is nothing on record to suggest that the
witnesses with respect to formation of squad, had any reason to
depose as stated aforesaid, which evidence, to a great extent, has
also gone unchallenged. There is documentary evidence adduced
and proved by the prosecution also in support thereof, that
officers were deputed to D.N. Nagar Police Station to work under
OA1 on the orders of PW78-Bipin Bihari, Addl. C.P, West Region.
Although much ado is made by the learned counsel for the
accused that the witnesses had not confirmed the veracity of what
was told to them, with the Addl. C.P, West Region, it is pertinent
to note, that all the witnesses were junior officers, who had no
reason to disbelieve what was told to them by the accused, who
S.Q. Pathan / N.S. Chitnis 235/867
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themselves were police personnel. Even otherwise, junior officer
would seldom find courage to question a high ranked officer i.e.
PW78. We find no merit in the said submission. Thus, we find
that the prosecution has proved through cogent, legal and
admissible evidence that a squad existed under Pradeep Sharma
(OA1) who was posted at D.N. Nagar Police Station and that
some police personnel were deputed from different police
stations to assist OA1 in his squad. Some of the police personnel
from other police stations were Tanaji Desai (A2) and Vinayak
Shinde (A7) from Versova Police Station, Ratnakar Kamble (A3)
from Juhu Police Station and Palande (A15) from Kalachowki
Police Station. So also amongst others, Kadam (A16) and Devidas
Sakpal (A13) were assisting OA1. In addition, there is
documentary evidence to show that A11, A17 and A19 proceeded
from Versova Police Station to D.N. Nagar Police Station for
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confidential work on 11 November 2006. There is a station
diary entry to that effect, both at Versova Police Station (Exhibit
884A) and D.N. Nagar Police Station (Exhibit 669A). According
S.Q. Pathan / N.S. Chitnis 236/867
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to the prosecution, apart from the police personnel, there were
some private persons, Shailendra Pandey @ Pinky (A4), Hitesh
Solanki @ Dhabbu (A5) and Akhil Khan @ Bobby (A6), who
were also members of the said squad of OA1. The evidence of
some of the witnesses, will show, that A5 and A6 would come to
meet OA1. Infact, PW87 has identified A5 and A6.
60 It is also pertinent to note, that the evidence of
PW87-Ajendrasingh Thakur, reveals, and which fact is not
disputed by the accused, that in the Kala-Ghoda encounter
(double murder) case i.e. C.R. No.545/2006, some of the accused
in the present case were also the members of the said encounter
team consisting of Pradeep Sharma (OA1), Pradeep
Suryawanshi (A9), Dilip Sitaram Palande (A15), Arvind
Sarvankar (A22), Anand Patade (A18), Prakash Kadam (A16),
Ratnakar Kamble (A3), Tanaji Desai (A2) and Vinayak Shinde
(A7), alongwith 2 others.
S.Q. Pathan / N.S. Chitnis 237/867
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61 We may note, that the trial Court has not accepted
the formation of squad under OA1, by placing reliance only on
the evidence of PW78–Bipin Bihari, despite there being
overwhelming evidence of other witnesses as well as documentary
evidence as stated aforesaid, to the contrary, showing formation
of a squad under OA1 and deputation of some of the accused to
work under OA1’s squad. The finding recorded by the trial
Court being contrary to the evidence on record, cannot be
sustained. We find that the prosecution has proved the existence
of a squad, albeit illegal, under OA1, by adducing oral and
documentary evidence.
ii. ABDUCTION:
62 According to the prosecution, Ramnarayan and Anil
Bheda were abducted in a Qualis vehicle by plain clothes
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policemen on 11 November 2006 at about 12:30 hrs., whereas,
according to the appellants/accused, the prosecution had
miserably failed to prove the circumstance of abduction by
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cogent, legal and admissible evidence.
63 It was urged by the learned counsel for the
appellants/accused that PW1 (brother of the deceased) had
cooked up a story to cover up the misdeeds of his brother, who
was a known criminal. Learned counsel for the
appellants/accused submitted that the evidence pertaining to
abduction being hearsay and thus inadmissible, none of the
witnesses examined by the prosecution could have been relied
upon by the prosecution.
64 The question that arises for consideration, is, whether
the prosecution has proved abduction of Ramnarayan and Anil
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Bheda on 11 November 2006 at around 12:35 – 12:40 hrs. If it
is proved, the defence of the appellants/accused becomes fate
accompli and as such, the burden would then shift on the
appellants/accused to show what happened to the deceased after
his abduction, till he was shot dead.
S.Q. Pathan / N.S. Chitnis 239/867
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65 The prosecution has set-out the abduction time-line
and has supported the said time-line with the evidence of
witnesses. The said evidence, according to the prosecution, is
duly corroborated by documentary evidence i.e. faxes, telegrams
and CDRs.
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10 NOVEMBER 2006
| 16:45 to 20:10 | A4 was outside Anil’s house keeping a<br>watch. Thereafter, A2, A3, A6 and<br>A7 are also stated to have arrived<br>near Anil Bheda’s House, at Vashi. |
|---|
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11 NOVEMBER 2006
| 00:21 | While at Mira Bhayandar, A4 called<br>Subhash Patel @ Lefty (Informer). |
|---|---|
| 05:25 or 05:22 | While at Mira Bhayandar, A4 called<br>A7, who was at Kalwa, Thane. |
| 06:31 or 12:27 | A4 and A7 alongwith A8, A10, A12<br>and A21 reached near the house of<br>Anil Bheda.<br>During this time, Subhash Lefty was |
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| also nearby. | |
|---|---|
| 09:04 | Ramnarayan called his wife from Anil<br>Bheda's house. |
| 10:29 | Ramnarayan called PW38-Dheeraj<br>Mehta from Anil Bheda's house. |
| 12:15 | Ramnarayan and Anil Bheda reached<br>PW38's shop, at Sector 9-A, Vashi. |
| 12:27 | A4 called A7. The said call started at<br>Sector 29, Vashi. The said call was of<br>553 seconds. (Exhibit - 580 ) |
| 12:31 to 12:33 | After reaching PW38's shop, when<br>Ramnarayan was waiting outside<br>PW38's shop, he called two different<br>persons from Sector-9-A, whilst he<br>was standing on the road. The same is<br>supported by CDR i.e 1st call was<br>made at 12:31 and its duration was<br>50 seconds. The second call was at<br>12:33 and its duration was 110<br>seconds. (Thus, till 12:35<br>Ramnarayan was at Sector 9-A). |
| 12:39 | After abduction from Sector 9-A, A7<br>called OA1 and Subhash Patel @<br>Lefty called A4. |
| 12:40 | Nilesh informed PW38 that his<br>friend and his friends' friend were |
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| taken away by 5 – 6 persons in a<br>qualis vehicle. Accordingly, several<br>calls were thereafter exchanged<br>between PW38, PW57, PW1, PW3<br>and PW2. | |
|---|---|
| About 13:00 | PW57 called PW38 and inquired<br>about Ramnarayan and Anil Bheda,<br>pursuant to which PW38 informed<br>PW57 about their abduction. |
| After 13:00 | PW3 received repeated calls from<br>different persons including PW57<br>who informed him about the<br>abduction. |
| (In the meantime)<br>13:14 to 13:20 | A4 and A7 went to Bhandup<br>Complex from Vashi and A2, A3 and<br>A6 came to Bhandup Complex. |
| Around 14:00 | PW1 received a call from PW3<br>informing him about the abduction.<br>(PW1 and PW3 are brothers of<br>Ramnarayan). |
| About 14:00 or 14:15 | PW1 reached the shop of PW3 and<br>was discussing with him about the<br>information received.<br>At that time, PW3 received one call.<br>PW1 took the call and talked with the<br>caller, who disclosed his name as<br>Dheeraj (PW38), and his mobile |
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| number as XXXXXX9531. | |
|---|---|
| About 14:30 | Ramnarayan and Anil Bheda were<br>brought to D.N. Nagar Police station<br>in separate vehicles. |
| About 14:30 to 15:00 | PW38 went to PW40’s (Anil Bheda’s<br>wife house), and informed her about<br>the abduction. It was decided by<br>PW40 to wait till 17:00 and then<br>decide future course of action. |
| Around 15:00 | During the said period, PW1 called<br>PW38 and spoke to PW40 on PW38's<br>mobile phone.<br>PW1 told PW40 to send telegram and<br>fax messages to the authorities,<br>however, she expressed her inability<br>to send the same and decided to wait<br>till 5:00 p.m. |
| Between 15:00 to<br>16:00 | PW1 and PW2 called some police<br>officials and gave them information<br>of abduction and requested them to<br>make inquiries about the same and<br>revert back, however, they did not get<br>any information. |
| About 16:08 | PW1 and PW2 sent Telegrams to the<br>Commissioner of Police (C.P),<br>Mumbai, Navi Mumbai and Thane |
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| from Matunga Telegraph Office. | |
|---|---|
| About 16:44 | PW1 and PW2 sent Fax messages to<br>C.P., Navi Mumbai and Thane, which<br>was received by them. |
| About 17:45 | PW1 was told by someone on phone<br>that Ramnarayan and Anil Bheda<br>were taken away by API Prakash<br>Bhandari of Belapur Crime Branch. |
| About 18:28 | PW1 and PW2 sent Telegrams to<br>C.M. and Dy. C.M. Maharashtra<br>State from Dadar Telegraph Office. |
| About 18:30 | PW40, Aruna Bheda was dropped at<br>Vashi Police Station by PW38 at<br>18:00 – 18:30 hrs.<br>PW40, Aruna Bheda lodged a missing<br>Complaint No. 51/2006 with the<br>Vashi Police Station i.e. her husband<br>Anil Bheda was missing. |
| About 20:00 | PW1 and PW2 reached Belapur<br>Crime Branch office to make inquiry<br>about Ramnarayan and Anil Bheda,<br>but did not get any information. |
| About 20:10 to 20:13 | Alleged encounter took place at Nana<br>Nani Park, 7 Bungalows, Andheri<br>(W), Mumbai. (As per the FIR lodged<br>by A9 i.e. C.R. No.302/2006,<br>registered with the Versova Police |
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| Station). | |
|---|---|
| About 20:30 | PW3 informed PW1 that there was<br>breaking news on all news channels,<br>that their brother was shot dead in an<br>encounter. At that time PW1 and<br>PW2 were at Belapur C.B.D. |
| About 22:15 | PW1 and PW2 reached Versova PS<br>along with two advocates and and a<br>driver. |
| About 22:30 | PW1 and PW2 alongwith two<br>advocates and driver reached Nana<br>Nani Park. |
| About 22:44 | PW1 takes a video clipping of the<br>spot on his Mobile Camera. The said<br>Video Clipping shows that a<br>newspaper was placed on the spot of<br>blood and one stone was kept on the<br>newspaper. It also shows the electric<br>pole number. |
th
12 NOVEMBER 2006
| 13:19 | OA1 calls PW104 (A.T. Patil) to come<br>to D.N Nagar Police Station to talk<br>to Anil Bheda. (PW104 has turned<br>hostile). |
|---|---|
| 15:16 | PW104 reaches D.N. Nagar Police<br>Station. |
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| 16:49 | Anil was taken to Vashi Police<br>Station, where his wife (PW40) had<br>lodged a missing complaint. The<br>said complaint was withdrawn by<br>PW40 and statements of PW40 and<br>Anil Bheda were recorded. |
|---|---|
| 22.05 to 22:51 | PW40 and Anil Bheda were taken<br>from Vashi Police Station by A2 and<br>A3 to their house and immediately<br>thereafter, PW40, Anil Bheda and<br>their son Parth, were taken to<br>Bhatwadi, (PW40’s parent’s house),<br>by A2 and A3. |
| 13 th NOVEMBER 2006 | Anil Bheda was taken to D.N. Nagar<br>Police Station and from there was<br>brought back to Bhatwadi and from<br>there Anil, his wife (PW40) and son<br>Parth were taken to Kolhapur by A5<br>and a driver in a Konduskar bus. |
|---|
| 14 th NOVEMBER 2006 | The aforesaid persons reached<br>Kolhapur where they stayed in a<br>hotel, opposite the bus stand for a<br>few days i.e. from 14th November<br>2006 to 18th November 2006. |
|---|
| 19 th NOVEMBER 2006<br>to | All the aforesaid persons reached<br>Mumbai. Anil was taken to Mid- |
|---|
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| 11 th /12 th DECEMBER 2006 | town hotel, Andheri, and was kept in<br>the said hotel by the<br>appellants/accused in confinement<br>from 19th November 2006 till around<br>12th December 2006. |
|---|
66 The witnesses examined by the prosecution to prove
abduction are PW38-Dheeraj Mehta; PW57-Shankar @ Girish
Dalsingh; PW3-Shyamsunder Gupta; PW1–Ramprasad Gupta;
PW2-Ganesh Iyer; and PW40–Aruna Bheda. The documentary
evidence produced and relied upon by the prosecution are faxes,
telegrams, station diary entries etc, to prove that Ramnarayan
th
and Anil Bheda were abducted on 11 November 2006 at around
12:35 hrs. CDRs are also relied upon to corroborate the evidence
of the witnesses.
PW38 : Dheeraj Mehta
67 Dheeraj Mehta, a friend of Anil Bheda and
Ramnarayan was examined by the prosecution, as PW38. The
said witness was conducting his business from one shop by the
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name of ‘Trisha Collection’, after the said premises was
partitioned into 3 to 4 shops. PW38 has stated that he knew Anil
Bheda, as he was working as an agent in APMC market and as he
had provided stones to the relatives of Bheda; that he had also
visited Anil Bheda’s house and as such knew Aruna Bheda
(PW40); that he also knew Bheda’s friend, Pandeyji
(Ramnarayan), who was dealing in real estate, as he too had
purchased stones from him.
th
67.1 According to PW38, on 11 November 2006, he had
been to his shop at about 10:30 hrs.; that at about 12:15 hrs Anil
Bheda and his friend Pandeyji came to his shop; that as there was
no place to sit in the shop, he asked them to wait outside; that at
about 12:40 hrs, one Nilesh came to his shop and informed him
that your friend had been taken away by someone; that he asked
Nilesh how it happened, Nilesh disclosed that his friend-Anil
Bheda (who regularly visits his shop) and his friend’s friend-
Ramnarayan, have been taken away in a Qualis vehicle by 5-6
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persons; that he asked Nilesh as to whether they were police
persons, to which, he replied that the said persons were in civil
dress; that thereafter, he tried to call on Anil Bheda’s mobile,
however, his phone was coming switched-off; that after 10–15
minutes, PW38 received a call from one Girish Nepali (PW57),
who was a friend of Pandeyji (Ramnarayan) and Bheda; that he
(PW57) asked if Anil Bheda and Pandeyji had come; that he
(PW38) disclosed to him about the incident that had occurred;
that PW57 told him (PW38) that he would receive a call after
some time and that he should disclose all the facts to him (the
caller); that he received one call from a PCO on his mobile No.
XXXXXX9532; the said person introduced himself as the
brother (PW3) of Pandeyji (Ramnarayan); that the said person
made inquiries about Pandeyji (Ramnarayan), pursuant to which,
he informed him (PW3) about the incident that had occurred;
that thereafter, at about 14.00 to 14:15 hrs, he received one
missed call; that he called on the said mobile number; that the
said person introduced himself as Advocate Gupta (PW1) and
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stated that he wanted to speak about Pandeyji and that he was
Pandeyji's brother, pursuant to which, he again informed him
about the said incident; that Advocate Gupta (PW1) asked him to
lodge a complaint in the police station, however, he did not reply
and disconnected the phone; that he again received a call from
PW1, after half an hour and that PW1 requested him to go to
Anil's house, so as to enable him to talk to Anil's wife; that at
about 14:30 hrs, he went to Anil's house and from his own
mobile, called Gupta (PW1) to enable him to talk to PW40; that
Advocate Gupta (PW1) disclosed to PW40, that there was danger
to the lives of Anil and Pandeyji and hence he gave phone
numbers and fax numbers of police; that he wrote down the
numbers and gave it to Aruna Bheda (PW40); that Advocate
Gupta (PW1) stated that it was likely that they would be killed in
a fake encounter; that after he spoke to Aruna Bheda, she told
him that she will wait till 5:00 pm and then decide the further
course of action and as such he left.
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67.2 PW38 has further stated that Gupta (PW1) again
called him and stated that as he did not lodge a complaint, he
should give this information to the police by dialing 100, which
he refused to do, as he did not want to get involved. According
to PW38, at about 5:00 pm, he went to PW40's house and asked
if she had received any information about Anil; that as no
information was received, he took Aruna Bheda (PW40) and left
her near Vashi Bus Depot, as she wanted to go to the Vashi Police
Station, to lodge a missing complaint regarding Anil Bheda, and
that thereafter, he went home. He has further stated that at about
20:00 to 20:30 hrs, he learnt from the TV news, that there was
an encounter of one Ramnarayan.
th
67.3 PW38 has further stated that on 12 November 2006,
he received a telephone call from Gupta (PW1), who disclosed
that his brother was killed in a police encounter and that the said
news was being shown on TV; that Gupta (PW1) told him that
Pandeyji's name was Lakhanbhaiya (Ramnarayan). He has
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further stated that although Gupta (PW1) requested him to be a
witness, he refused as he did not want to get involved in the
matter; and that Gupta asked him to show the place from where
Pandeyji (Ramnarayan) was taken away, pursuant to which he
took him to his shop.
67.4 According to PW38, he met Anil Bheda after about
15-20 days of the incident; that he inquired with him about what
had happened on that day, pursuant to which Anil disclosed that
he had been to Shirdi on the said day and that when he asked
about Pandeyji (Ramnarayan), he avoided and left.
th
67.5 In his cross-examination, PW38 admitted that on 11
November 2006, Anil Bheda and Pandeyji (Ramnarayan) waited
outside his shop and that he could not see where the two were
standing; that the distance between the shop and road was about
10 feet; that at the relevant time, he saw Nilesh standing outside
the shop on the road. When a suggestion was put to him, PW38
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denied that he was deposing falsely that Anil Bheda and Pandeyji
th
(Ramnarayan) visited his shop on 11 November 2006; that one
Mr. Nilesh who has a shop next to his, had not disclosed the
th
information to him on 11 November 2006; that he had not
disclosed the name of Nilesh to Aruna Bheda; and that SIT told
him to depose that Nilesh gave the information and hence on the
say of SIT, he was falsely stating so.
68 Learned counsel for the appellants submitted that the
evidence of PW38 with respect to abduction cannot be relied
upon inasmuch as, the alleged eye-witness to the incident of
abduction i.e. Nilesh’s statement was not recorded by the
prosecution and as such the evidence of PW38 being hearsay, no
reliance can be placed on the evidence of PW38 with respect to
the disclosure made by Nilesh to him.
69 Per contra, Mr. Chavan, learned Spl. P.P submitted
that what was disclosed by Nilesh to PW38 would not be hearsay
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and infact, would be admissible under Illustration (a) of Section 6
of the Evidence Act i.e. under the res gestae principle. The said
submission will be dealt with, a little later, when we analyse the
evidence and the law with respect to the same.
PW57 – Mr. Shankar @ Girish Dal Singh :
70 PW57 – Shankar @ Girish Dal Singh, in his evidence
th
has stated that on 11 November 2006, he was at home and that
he received a call from Dheeraj Mehta (PW38) from Navi
Mumbai between 12:30 hrs. to 13:00 hrs; that some gaonwale
(villagers) had taken Ramnarayan and Anil Bheda; that as it was
incomplete information, he again called on PW38’s mobile, who
informed him that the police from the Crime Branch had taken
Ramnarayan and Anil Bheda; that immediately he called
Ramnarayan’s brother-in-law, Babu and Ramnarayan’s brother,
Ramprasad (PW1) and informed them of the disclosure made to
him, by PW38. He has stated that the mobile used by him at the
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relevant time was XXXXX9998. He has further stated that after
the encounter of Ramnarayan, he ran away to his village,
apprehending that he too may be killed and returned back to
Mumbai, after about one or one and a half year of the incident.
According to PW57, when he inquired with Janaya Sheth as to
who killed Ramnarayan, he replied that the “game of Lakhan
Bhayya was done by Subhash Lefty.”
70.1 In his cross-examination, the said witness confirmed
that on the day of incident, he informed the incident only to
Ramprasad Gupta and Babu; and it was Dheeraj (PW38) who
had told him that Ramnarayan and Anil Bheda were picked up
and taken away. PW57 has further admitted in his cross-
examination, that he did not write down anywhere that, Janaya
Sheth had told him, that Lefty “did the game of Lakhan Bhayya”,
and that he did not mention it anywhere or to anyone.
71 Thus, PW57 has corroborated the disclosure made to
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him by PW38 with respect to abduction of Ramnarayan and Anil
Bheda, soon after the abduction and information received from
Nilesh.
PW3 – Shyamsunder Vishwanath Gupta :
72 PW3–Shyamsunder Gupta, one of the brother’s of
th
deceased-Ramnarayan, has stated that on 11 November 2006,
when he was sitting in his lottery shop, he received a telephone
call; that the said person stated that from front of the said shop,
Ramnarayan and Anil had been forcefully taken in a vehicle by
persons looking like police; that the vehicle was a silver coloured
Qualis vehicle; that he received a call on his mobile, at about
13:00 hrs, when he was present in his shop; that he was using
mobile XXXXXX6540; that at that time, he had two mobile
numbers and that the other mobile number was XXXXX4123;
that within a period of 10-15 minutes, he received 2-3 calls,
narrating the same incident from different persons; that he did
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not know any of the persons who called and hence he got tense
and immediately called his younger brother-Ramprasad, an
advocate (PW1) on his mobile number XXXXXX6490 and told
him that some unknown persons have taken Ramnarayan from
Vashi; that pursuant thereto, PW1 came to his shop; that when
PW1 was at his shop, he again received a call; that he handed
over his phone to PW1; that PW1 asked him the details; that
thereafter on asking the details, PW1 told him that he will make
inquiries with the police as to who the said persons were; that
thereafter, PW1 left and also took his mobile with him; that PW1
informed him that he was going to the office of Ganesh Iyer
(PW2); that he stayed back in his shop after Ramprasad left; that
Subalaxmi, Ramnarayan’s wife called him and informed him that
she was trying to call Ramnarayan on his phone, but his phone
was coming switched-off and that she had been informed that
some persons looking like police have taken her husband. PW3
has further stated that there was a television set at his shop and
while watching the television at 20:30 hrs, there was breaking
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news, in which it was relayed that 'one person from Chhota
Rajan Gang, Lakhanbhaiya was killed at Versova, in an
encounter '; that he immediately called Ramprasad (PW1), who
was at Belapur, as he had received information, that one Prakash
Bhandari had taken Ramnarayan; that PW1 told him that he was
returning and that he should come to the office of Ganesh Iyer
(PW2); that he went to PW2's office within 10–15 minutes; that
PW2's office was situated at Sion; that when he reached PW2's
office, neither PW1 nor PW2 were present and that one Advocate
Vijay Desai and another person were there; that at about 9:00 to
21:15 hrs, PW1 and PW2 came there; that PW1 gave him one
mobile, which was of Reliance Company and asked him to give it
at his house, after which PW1 left for Versova. PW3 has further
stated that on the next day, he went to J.J. Hospital at about
21:00–21:30 hrs and was waiting for the dead body of
Ramnarayan to arrive; that at about 23:00–00:00 hrs, the body
arrived in an ambulance; that he asked the Hawaldar to show him
the face, as he wanted to identify the body, however, initially the
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Hawaldar refused but thereafter, he showed him the dead body.
PW3 has further stated that when he saw the dead boy there was
red soil on his legs till the knee and that when he saw the face, he
saw a hole on his forehead; that he requested the police to permit
him to take a photograph of the dead body, however, he was
asked to leave; that he immediately called PW1 and informed
him, pursuant to which, PW1 asked him to return immediately
and not to wait there. He has stated that thereafter he never went
to the police, till his statement was recorded by SIT.
72.1 In his cross-examination, the said witness has
th
admitted that on 11 November 2006, he came to his shop at
10:00 hrs. and remained in his shop till he received the phone
call; and that he learnt about the incident only on receiving the
phone call. He has admitted that he had not met the said caller
th
prior to 11 November 2006 or till the date of his deposition;
and that he only knows that the said person, has a mobile shop.
PW3 has admitted that he has not inquired, with Girish Nepali
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(PW57) whether he had personally witnessed the incident; that
from the said caller, he came to know that the incident of
abduction took place in front of the caller’s shop in Vashi; and
that the caller informed him that there were 4-5 persons involved
in the said incident.
72.2 PW3 has also admitted in his cross, that he had
received 3 to 4 phone calls about the incident before he called his
brother Ramprasad (PW1); that out of all the callers, he only
knew one i.e. Girish Nepali (PW57); that he had informed his
brother (PW1), that their brother (Ramnarayan) was taken in a
silver coloured Qualis vehicle, from the front of a mobile shop at
Vashi. He has further stated that Article 8 is his first statement in
writing, about the incident and that he had not stated that he had
not informed any other person or asked any other person to make
inquiries, prior to the arrival of his brother or, about the
information received by him relating to the taking away of his
deceased brother.
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72.3 He has further admitted in his cross-examination, that
he has not stated in his affidavit before the learned Metropolitan
Magistrate that when Ramprasad (PW1) had come to his shop
and was talking to him, he received another phone call from the
caller who had given him the information earlier and that he
handed over his phone to PW1, who asked the said caller his
details, and that when PW1 left, he took his phone with him. The
said witness had further admitted that he had not stated in his
affidavit that he had received a call from Subalaxmi, who had
requested him to search for PW1, to which the said witness
informed her that PW1 had gone for making such inquiries; and
that PW1 had asked PW3 to go to the office of Ganesh Iyer at
Sion, where Vijay Desai and one other person was present.
72.4 The aforesaid admissions relied upon by the learned
counsel for the appellants, do not in anyway discredit the
testimony of PW3. These are minor omissions and not material
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omissions and as such do not impact the evidence of PW3 on all
material aspects, which have been duly corroborated by other
witnesses.
PW1–Ramprasad Vishwanath Gupta :
75 PW1–Ramprasad Gupta, an advocate, the brother of
the deceased has in his evidence stated that he was staying at the
th
relevant time, at Sion Koliwada. He has stated that on 11
November 2006, being a second Saturday, he was at his home;
that at about 13:55 hrs, he received a call from his brother (PW3)
on his mobile number XXXXXX6490, informing him that one
person had called him on his telephone 2 or 3 times and had
informed him that Ramnarayan and Anil Bheda were forcibly
taken in a Qualis vehicle by 4 to 5 persons looking like officers
from front of his shop; that at about 13:59 hrs, he called from his
mobile number XXXXXX6490 on his friend's mobile i.e.
Advocate Ganesh Iyer’s Mobile No. XXXXXX5384 and
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informed him about the incident and told him to meet him
immediately; that thereafter, he went to PW3’s shop, which was
situated at Pratiksha Nagar, Sion Koliwada; that when he was at
PW3’s shop, PW3 received a call on his mobile from one person;
that he took the mobile of his brother and spoke to the said
person, and asked him his name and telephone number; that the
said person disclosed his name as Dheeraj (PW38) and gave his
mobile number XXXXXX9531; that when he asked the said
person as to whether he knew who the police officers were and
from where they had come, the said person replied that he was
not aware, and further disclosed that the said police officers were
not like local police officers; that he told that person (PW38) to
immediately go to Anil Bheda's house and tell his wife to speak
to him; that thereafter, at about 14:45 hrs, he went to the office
of Advocate Ganesh Iyer (PW2) at Sion and informed him in
detail about the communication he had received; that at that
time, Ramnarayan's wife Subalaxmi was in a hospital at
Mangalore; that at about 15:30 hrs, he called Subalaxmi, and
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asked her whether Ramnarayan had done anything and whether
she knew about it; that Subalaxmi informed him that she had
received a call from her brother (Babu), who informed her about
Anil Bheda and Ramnarayan being forcibly taken away; that
when he telephoned PW38 on his mobile number
XXXXXX9531 from his Reliance phone number
XXXXXX0012, PW38 told him that he was at the house of
Aruna Bheda (PW40); that he spoke to PW40 and asked her as to
whether any police officers had visited her house and whether
she knew anything, to which she replied in the negative; that
PW2 took his mobile from him and spoke to PW40 and asked
her, her address, pursuant to which she gave her address as Sector
29, Diamond Apartment, Plot No.C-41, Vashi, Navi Mumbai;
that thereafter he spoke to PW38 and asked him his shop's
address; that PW38 disclosed that his shop is at Sector 9, Vashi,
Navi Mumbai and accordingly, he noted down the address on a
paper; that at that time, Aruna was crying and asked him to find
Ramnarayan and Anil and to save their lives; that pursuant
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thereto, he and PW2 called some of the police officers from the
Property Cell and informed them about the incident and
requested them to make inquiry and inform about the same to
them; that he also telephoned his advocate friends and informed
them about the incident and requested them to make inquiry and
to inform him; that he inquired with Mahesh Mule and Shrirang
Shrimane, for the fax numbers of CP of Mumbai, Thane and Navi
Mumbai and that both of them gave the fax numbers, which he
noted down.
75.1 According to PW1, thereafter at about 14:00 hrs, he
and PW2 went to Matunga Telegraph Office and sent a telegram
to the CP, Mumbai, Thane and Navi Mumbai. The contents of
the telegram were 'Ramnarayan Vishwanath Gupta and Anil
Bheda picked up by Plain clothes police men from Sector 9, Vashi
and their lives are in danger. Please help and save their lives' He
has further stated that he also tried to send the message by fax to
the office of the CP, Mumbai, Thane and Navi Mumbai, however,
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the communication could not be done due to technical fault. He
has stated that the form of the telegram was written by PW2 and
it was sent in the name of Aruna Bheda with her address
mentioned on it. He has stated that he received receipt of
payment for sending the telegram. He has further stated that in
the writ petition filed by him in the High Court, the CP, Mumbai
in his affidavit denied having received such a telegram and hence,
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he approached the BSNL on 27 November 2006 and sought the
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delivery report of the telegram he had sent; that on 29
November 2006, he received a report from the telegram office
about delivery of those telegrams to the concerned offices. PW1
has identified the handwriting of Ganesh Iyer, as they were
working in the same office. He was shown the telegram form,
which was sent to the CP of Thane, written by PW2-Ganesh Iyer
in the name of Aruna Bheda. He has identified the handwriting
of PW2 as it was written in his presence. The telegram form
was marked as Exh.–114. The telegram form sent to CP of Navi
Mumbai, was also shown to PW1, which was written by PW2 and
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which was sent in the name of Aruna Bheda. The said telegram
form was marked as Exh.–115. The telegram form sent to CP of
Mumbai, was also shown to PW1, which was written by PW2
and sent in the name of Aruna Bheda. The said telegram form
was marked as Exh.–116. PW1 has further stated that thereafter,
they returned to their office from Matunga Telegraph office; that
on the same day at about 16:45 hrs, he sent faxes to CP, Thane
on fax No. XXXX6660 and CP, Navi Mumbai on fax
No.XXXX4929 from Ratnadeep Stores, Sion. He has stated that
he tried to send a fax to CP, Mumbai on fax No. XXXX1355,
however, it could not be sent as somebody from the other side
would pick the phone, instead of giving a fax tone. PW1 has
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further stated that at about 17:45 hrs on 11 November 2006,
one person telephoned him and told him that his brother and Anil
were taken away by API Prakash Bhandari, Belapur Crime
Branch, pursuant to which he called Advocate Amit Jambholkar
and Advocate Vijay Desai and asked them to make inquiry about
API Prakash Bhandari and find out his contact number and
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communicate to him, if they received any message; that he and
PW2 again went to Matunga Telegraph Office, however, since
the said office was closed, they went to Dadar Telegraph Office,
and at about 18:28 hrs, sent a telegram to the Chief Minister and
Dy. Chief Minister of Maharashtra. As far as the telegrams sent
to CM and Dy. CM are concerned, the said telegrams were
exhibited at Exhibits 117 and 118. He has stated that the
telegram sent to CM was in the handwriting of PW2 and one of
the telegrams which was sent to Dy. CM was in his own
handwriting and the same were sent in the name of Aruna Bheda.
The contents of the telegrams sent to the CM and Dy. CM were
'My husband Anil Bheda and his friend Ramnarayan Gupta has
been picked up by the plain clothes police men from Sector 9,
Vashi, Navi Mumbai and I fear that they may be killed in a fake
encounter.” He has further stated that thereafter, he and PW2
went to Belapur Crime Branch at around 19:45 hrs; that he
informed the incident to one constable who was present there in
uniform and asked him, whether the police had brought any
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person; that the constable told him that API Prakash Bhandari
was on leave that day and that he had not brought anybody to the
Crime Branch office; that he requested the constable to show him
the rooms of the Crime Branch office; that the constable showed
him the rooms, however, nobody was found inside; that
thereafter, they went to Belapur Railway Station; that he called
from his mobile, the person, who had given him the said
information about API Prakash Bhandari taking away his brother
and Bheda to Crime Branch and informed him that nobody was
found at Belapur Crime Branch; that when he and PW2 were
having tea at Belapur Railway Station at about 20:30 hrs, PW3
telephoned him on his mobile and disclosed that there was
breaking news on T.V on all channels, that Ramnarayan Gupta
(Lakhanbhaiya) was killed in an encounter by the police at
Versova; that on receiving the said information, he and PW2
returned to Sion on a motorcycle; that while returning, PW2
telephoned Advocate Vijay Desai and informed him that they
were going to the spot at Versova; that Advocate Vijay Desai
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asked them to come to PW2's office and that he too would
accompany them; that PW2 also called his driver to his office;
that after they reached PW2's office, PW3, Advocate Vijay Desai,
Advocate Kudart Shaikh and Driver Raja had already reached the
office of PW2; and that as the battery of his Reliance mobile was
discharged, he handed over the same to his brother PW3 and sent
him to his house.
75.2 PW1 has further stated that thereafter he, PW2,
Advocate Desai and Advocate Shaikh and Driver Raja went in the
car to Versova Police Station and inquired with the police
constable as to whether an encounter of any person had taken
place; that the constable told them that he did not know about
the same and that they should go to the spot at Nana Nani Park,
Versova; that they reached Nana Nani Park at about 22:30 hrs;
that at that time, there was total darkness and there was nobody
and the place was totally quiet; that when they searched, they
found some blood near an electric pole and on the blood a news
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paper “Dopahar Ka Saamna” was kept and a stone was kept on
the newspaper; that they found one vehicle (Jeep type) parked at
some distance and 3 to 4 persons were standing near the vehicle;
that when he asked them whether there was any encounter, they
told him that no encounter had taken place at that spot.
According to PW1, thereafter, they went near a building, situated
on the left side of the spot, by the name Magnum Opus; that one
watchman Rambabu Rajaram Lodh was present there; that they
asked him whether any encounter had occurred at that spot,
however he replied in the negative. Although PW1 has disclosed
to what was disclosed by the said watchman, we do not wish to
reproduce the same, as the same would be inadmissible, being
hearsay.
75.3 PW1 has categorically stated in his evidence that no
police officer was present at the spot. He has stated that he asked
3 to 4 persons, who were present there to disclose their names,
however they did not disclose their names. He has stated that he
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had taken a video clipping of the spot on his mobile and prepared
a CD of the said clipping and had handed over the same to the
police officer. He has stated that he again visited the Versova
Police Station where he was informed by the police constable that
nothing was found at the spot and since he did not receive any
information, he was asked to go to Cooper Hospital. He has
stated that he was enraged, however, his friends told him that
nothing would happen by visiting the hospital and took him
home. He has further stated that Ramnarayan’s body was kept
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in Cooper Hospital; that on 12 November 2006 at about 9:00
hrs., he asked his brother Shyamsunder (PW3) to visit J.J.
Hospital for identifying Ramnarayan’s body; that pursuant
thereto, PW3 went to J.J. Hospital and identified the body of
Ramnarayan and informed him about the same; that on that day
he called PW38 about 7 to 8 times on his mobile No.
XXXXXX9531 and inquired with him, whether he had any
information of the whereabouts of Anil Bheda, to which PW38
replied that he did not have any information. PW1 has further
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stated that on 13 November 2006 in the morning, he had gone
to Matunga Telegraph Office to obtain the certified copies of the
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telegram sent by him on 11 November 2006; that he went to
Dadar Telegraph Office and obtained two certified copies of the
telegrams sent to Chief Minister and Deputy Chief Minister on
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11 November 2006; that the Matunga Telegraph Office
obtained his signature and date on the original telegram form for
acknowledging receipt of certified copy. He has identified his
signature on Exhibits 114, 115 and 116 respectively.
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75.4 PW1 has further stated that on 13 November 2006
after getting the certified copies of the telegram, he prepared
detailed complaints on his letter-head, and addressed the same to
the Chief Minister of Maharashtra and Dy. Chief Minister of
Maharashtra and sent the same by hand delivery and obtained
acknowledgments of receipts of the letters from the concerned
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officials. He has further stated that on 14 November 2006, he
sent complaints on his letter-head, to the State Human Rights
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Commission (SHRC) and CP, Mumbai; that on 14 November
2006 there was an interview of Shri R. R. Patil and Shri A. N.
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Roy on TV denying the fake encounter; and that on 15
November 2006 he filed a writ petition, being Writ Petition
No.2473/2006 in this Court seeking several reliefs.
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75.5 According to PW1, on 16 November 2006, he
addressed a copy of the complaint to the President, National
Human Rights Commission (NHRC), New Delhi, on his letter-
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head and sent the same by RPAD. According to PW1, on 16
November 2006 his writ petition was heard by this Court and
one of the prayer in the writ petition was, seeking second post-
mortem. He has stated that P.I Mohandas Sankhe, of Versova
Police Station had shown a copy of the post-mortem report to the
Court and the prosecutor had handed over a copy of the said
post-mortem report to him and after going through the same, he
withdrew his prayer seeking second post-mortem, orally. He has
stated that on the next day, he had gone to Versova Police Station
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for claiming the dead body; that the Versova Police Station told
him that the investigation of the case was taken over by the
Oshiwara Police Station; that he requested the police officers of
the Oshiwara Police Station to take the photographs and video of
the dead body of his brother, but they refused and hence he did
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not take the custody of the dead body. He has stated that on 18
November 2006 he had made an application through Advocate
Ganesh Iyer (PW2) on his letter-head and sought five sets of
copies of telegram; and that the Dadar Telegraph Office had
supplied the copies, but the Matunga Telegraph Office had
refused to supply the same.
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75.6 PW1 has further stated that on 20 November 2006,
the matter again came up for hearing before this Court; that on
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20 November 2006 the CP of Mumbai, Shri Roy filed an
st
affidavit in reply to the writ petition; that on 21 November
2006, he had sent a letter on his letter-head to the Manager,
BSNL, requesting them not to destroy the telegram forms without
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the permission of this Court or without informing him, as the
nd
matter was subjudice before this Court; that on 22 November
2006 the matter again came up for hearing before this Court and
the Court gave directions to the officers of the Oshiwara Police
Station and to him to go to the J.J. Hospital, so that the dead
nd
body could be handed over to him; that on 22 November 2006,
he had been to Oshiwara Police Station for claiming the dead
nd
body; that after taking the custody of the dead body on 22
November 2006, the last rites were performed on the deceased;
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that on 27 November 2006, he gave an application on his letter-
head, to the Sub Divisional Engineer (G-II), BSNL, Mumbai,
requesting them to inform as to whether the five telegrams which
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were sent on 11 November 2006 were received by the
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concerned authorities; that on 29 November 2006, the said
authority gave him a report, with respect to delivery of
telegrams by the concerned authorities, by mentioning the date
and time.
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75.7 According to PW1, on 26 November 2006, he
called PW38 and inquired about the whereabouts of Anil Bheda,
however, he disclosed he had no information; that he requested
him to file an affidavit before the High Court, however, PW38
refused; that he went to PW38’s shop and saw the name of his
shop 'Trisha Collection' at Sector 9, Vashi, Navi Mumbai; that
thereafter he went to Anil Bheda's house alone and found that his
house was locked; that he inquired with the watchmen of the
building, who told him that he did not know anything and he
should not inquire about him, pursuant to which he returned
home; that he again visited Bheda's house on three consecutive
Sundays, but on each occasion, he found the house locked.
75.8 According to PW1, he had received the receipts for
the payment of five telegrams sent by him. The said five receipts
have been exhibited as Exh.–119 (colly). The receipt number of
Exh.-119 (colly) has been mentioned on the respective telegrams.
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75.9 PW1 has further deposed that on 11 November
2006, a fax message was written by Ganesh Iyer (PW2) in his
handwriting. The witness was shown the fax message which was
in the handwriting of PW2. He has further deposed that he
obtained the delivery report of the fax and mentioned the name
and address of Aruna Bheda and the telephone number and fax
number of CP office in his handwriting on the backside and that
he had also mentioned the number of his sister-in-law and
number of Girish, who was a friend of Ramnarayan and number
of Dheeraj on the back side of message. The said document is
marked as Exh.–120. According to PW1, he had also sent a fax
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to CP of Mumbai, Thane and Navi Mumbai on 11 November
2006 and had received the delivery reports of the said faxes sent.
PW1 has further stated that since delivery of fax messages
vanishes automatically from the paper, after a few days, he
removed a photo copy of one of the delivery reports by keeping
the delivery report below the fax message contents. He has
identified the faxes sent to the CP Office, Thane. In view of the
S.Q. Pathan / N.S. Chitnis 278/867
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objection raised by the learned counsel for the appellants, the
photo copy of the delivery message of fax sent to CP Office,
Thane was marked as Article 1. The fax message sent to CP
Office, Navi Mumbai was marked as Article 2, alongwith the fax
delivery report.
75.10 PW1 has further stated that in the last week of
December 2006 on Sunday, he visited the house of Anil Bheda;
that on that day Anil Bheda, his wife Aruna and their son Parth
were at home and they met him; that he went there to inquire as
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to what had happened on 11 November 2006. Although, PW1
has stated the disclosure made by Anil Bheda, vis-a-vis the
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incident of 11 November 2006, we may note, that since Anil
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Bheda expired on 13 March 2011, the evidence with respect to
what was disclosed by Anil Bheda to him, being hearsay
evidence, is not taken into consideration. He has stated that after
speaking to Bheda, he asked him to file an affidavit in the High
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Court pertaining to the incident that took place on 11
S.Q. Pathan / N.S. Chitnis 279/867
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November 2006, however, Bheda did not file any affidavit. PW1
has further stated that he had not disclosed the conversation with
Bheda to anybody because he knew that as soon as he disclosed
the same, Anil Bheda would be eliminated by the accused. He has
stated that when this Court directed the SIT to make
investigation, he disclosed before them, the conversation he had
with Bheda and the disclosures made to him by Bheda.
75.11 As far as inquiry being conducted by SLAO is
concerned, PW1 has stated that he participated in the said inquiry
which was being conducted under the supervision of the High
Court and that his statement was also recorded in that inquiry;
that in all, 37 statements of the witnesses were recorded,
including that of 12 police officers and Advocate Ganesh Iyer;
that after the inquiry, the SLAO filed a report in the High Court
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on 27 October 2007; that the High Court was not satisfied with
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the SLAO’s report and hence, vide order dated 13 February
2008, the Court directed the learned Metropolitan Magistrate's
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Court, Andheri to conduct a fresh inquiry under Section 176(1-A)
of the Cr.PC PW1 has stated that he had participated in the
inquiry conducted by the Learned Metropolitan Magistrate,
Railway Mobile Court, Andheri and that on completion of the
inquiry, the learned Metropolitan Magistrate filed her report on
th
11 August 2008 before this Court. He has stated that 8 police
officers filed intervention applications in the said writ petition
and several affidavits therein; that one officer Nitin Sartape (A11)
filed a separate writ petition, being Writ Petition No.181/2009,
challenging the report of the learned Metropolitan Magistrate
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Court, Andheri; that on 13 August 2009, after hearing the
parties, the High Court constituted a SIT and directed the CP,
Mumbai, to register an FIR for the offence of murder of
Ramnarayan Gupta and to carry out the investigation and file a
report. He has stated that the High Court had also given
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directions to give a copy of his complaint dated 14 November
2006 to the CP, Mumbai; that pursuant thereto, he tried to
contact DCP Prasanna, Head of SIT; that since he was on leave,
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PW1 contacted him again on 20 August 2009; that pursuant
thereto, DCP Prasanna recorded his statement; and that he also
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handed over the copies of his complaint dated 14 November
2006, copy of writ petition, copy of five telegrams, copy of
receipts of five telegrams, copy of fax delivery reports and two
other fax delivery reports which were annexed to Writ Petition
No. 2473/2006, with his forwarding letter to DCP Prasanna.
PW1 has identified his statement and the signature on the FIR.
He has stated the contents therein are true and correct. The FIR
is marked as Exh.–121, subject to the objection with respect to
the contents of the FIR to the extent it records the conversation
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between him and Anil. He has further stated that on 11
November 2006, he had two mobile phones of his own, being
mobile Nos. XXXXXX6490 and XXXXXX0012 and from the
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afternoon of 11 November 2006, he was having the mobile of
his brother–Shyamsunder; that he had done the video clipping of
the spot on his mobile No.XXXXXX6490 of Motorola Handset;
and that the video clipping of the spot is stored in the memory
S.Q. Pathan / N.S. Chitnis 282/867
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card of the said mobile. The video clipping recorded by the said
witness and the video clipping of the Sahara News on the laptop
was taken on record, subject to objection and marked as Exh.–
122. PW1 has further stated that he had prepared the CD from
the memory card of his mobile and that he had retained both the
mobile as well as the memory card which was used for recording
the video. He has stated that he did not produce the memory
card wherein the video clipping was recorded before the police,
as it was small one and there was likelihood of the same being
lost. In view of the objection by the learned counsel for the
appellants, production of the memory card at the stage of
recording of the evidence was disallowed.
75.12 As far as video clipping is concerned, the same was
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produced by PW1. He has stated that on 16 December 2006, he
had obtained the CD of the video clipping of the Sahara Samay
from Isha Monitoring Services at Ghatkopar, after paying the
necessary charges. He has produced the CD before the police.
S.Q. Pathan / N.S. Chitnis 283/867
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The said CD was marked as Exh.–123.
75.13 PW1 has further stated that he had written a letter on
th
13 November 2006 to the Chief Minister of Maharashtra and
received acknowledgment of the hand delivery of the letter; and
that the copy of the said letter bearing the endorsement
acknowledging the receipt of the letter, was identified by him. A
copy of the said letter was marked as Exh.–124. A copy of the
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letter written to Dy. CM of the Maharashtra State on 13
November 2006 was also produced showing the endorsement
acknowledging the receipt of the letter. The said letter was sent
by hand delivery. A copy of the said letter was marked as Exh.–
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125. Similarly, a letter dated 14 November 2006 written to the
CP, Mumbai and delivered by hand was also produced showing
the endorsement acknowledging the receipt of the letter and the
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same was marked as Exh.–126. Similarly, a letter dated 14
November 2006, written to the State Human Rights Commission,
Mumbai, delivered by hand was also produced showing the
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endorsement acknowledging the receipt of the letter and the
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same was marked as Exh.–127. Similarly, a letter dated 16
November 2006, sent to the NHRC, New Delhi, delivered by
Registered Post and the acknowledgment receipt from the post
alongwith a xerox copy of the letter was marked as Exh.–128
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colly. Similarly, a letter dated 20 November 2006, sent to the
General Manager, Bharat Sanchar Nigam Limited (BSNL) for
preserving the original telegram forms, sent by hand delivery and
the xerox copy of the letter bearing endorsement acknowledging
the receipt of the letter was marked as Exh.–129. Similarly, a
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letter dated 27 November 2006, sent to the S.D.E.G-II, BSNL
seeking delivery reports of the telegram sent by PW1 and the
xerox copy of the letter bearing the endorsement acknowledging
the receipt of the letter, was marked as Exh.-130. Similarly, the
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reply dated 29 November 2006, received from S.D.E.G-II,
BSNL office, was marked as Exh.–131, subject to objection on
the premise that the contents are to be proved by the sender of
the reply. (We may note that witnesses have been examined to
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prove the said documents).
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75.14 On 6 March 2007, PW1 made an application to the
Information Officer/ACP under the RTI Act, to get the
information as to when and at what time and by whom the office
of the CP, received the telegram and what action they had taken
on the telegram; that he had received a xerox copy of that
application and had obtained the acknowledgment of the receipt
of the application from CP Office, Mumbai; that the xerox copy
of the application bears his (PW1's) signature since he had typed
it. PW1 has admitted the contents therein, to be true and correct.
The same was marked as Exh.–133. PW1 has further deposed
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that he had received a reply from the CP Office, Mumbai on 20
March 2007. The said reply was placed on record and marked as
Exh.–134, subject to objection. PW1 has further stated that on
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17 August 2009 some of the accused i.e. Devidas Sakpal (A13),
Prakash Kadam (A16), Pandurang Kokam (A19) and Sandip
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Sardar (A20), challenged the order dated 13 August 2009 passed
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by this Court in Writ Petition No.2473/2006, before the Apex
Court by way of an SLP and that the said SLP was dismissed on
st
31 August 2009 as withdrawn by the petitioners therein.
Thereafter, PW1 has stated as to when the applications were
made by him for recording the statements of witnesses under
Section 164 Cr. PC and steps taken by him. The video clipping
so produced by PW1 was seen in the presence of the accused and
their advocates and the learned Spl. PP and the visible images of
the video clip from the CD were noted and so also the
conversation was heard. The same has been recorded in paras 64
and 65 of PW1's evidence. According to PW1, he received a call
th
from SIT Office; that he was called on 14 July 2010 for
th
recording his further statement; that on 24 August 2008, he
th
received a call from the SIT Office and was called on 25 August
2008 at Vashi Bus Depot for showing the spot from where his
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brother was taken; that SIT recorded his statement on 25 August
th
2009; that on 10 October 2009, he received a call from SIT
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asking him to come to Nana Nani Park on 11 October 2009.
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He has stated that all the documents, including letters, faxes,
telegrams were handed over by him to SIT.
75.15 In his cross-examination, PW1 has admitted that he
knows Dheeraj Mehta (PW38), however he had not heard of him
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or known him prior to the incident of 11 November 2006; that
th
on 11 November 2006, he had spoken to PW38 for the first
time on the phone when his brother (PW3) handed over his
phone to him, when he was in the shop of PW3; that he called
PW38 approximately 5 to 6 times. He has further admitted that
in connection with the abduction incident, (he spoke to PW3
first; and that he has already deposed what was informed to him
by PW3 in para No.4 of his evidence); that he did not ask PW3 as
to whether he inquired about the person who called him on
phone; that PW3 did not inform him that the police had taken
Ramnarayan by Qualis car. PW1 has admitted that he had
received only one call from Shyamsunder at 13:55 hrs with
regard to the incident.
S.Q. Pathan / N.S. Chitnis 288/867
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75.16 It is also pertinent to note that it has come in the
cross of PW1, which fact, has been admitted by PW1 that it was
true that Ramnarayan was residing with Anil Bheda prior to the
incident. Thus, it stands to reason why watch was being kept on
th
Ramnarayan on 10 November 2006 at Vashi on Anil Bheda’s
house.
75.17 The said evidence of PW1 is corroborated by the
evidence of PW38 and PW3 with respect to abduction. PW1’s
evidence reveals the prompt action and steps taken by him on
receipt of information i.e. abduction of his brother-Ramnarayan
and Anil Bheda, by sending faxes, telegrams on the very same day,
prior to Ramnarayan being shot dead.
75.18 Although, much ado is made by the learned counsel
for the appellants that PW1 by sending faxes and telegrams, tried
to fabricate/create evidence, as PW1 was well aware, that his
brother-Ramnarayan was a wanted accused, we find no
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substance/merit in the said submission. It was also urged by the
learned counsel for the appellants that PW1 sent faxes and
telegrams in Aruna Bheda’s name deliberately, though she did not
want to send the same, as PW1 wanted to conceal his own
identity. It is pertinent to note, that PW1 has given his
explanation for sending the faxes and telegrams in Aruna Bheda’s
name i.e. he was shy of sending in his name since he was aware
that his brother Ramnarayan had a past criminal record. PW1
voluntarily deposed that since Aruna Bheda’s husband was also
abducted, the telegrams were sent mentioning the name of Aruna
Bheda and not in the name of PW1 or in the name of Ganesh Iyer
(PW2).
76 Be that as it may, the fact that faxes/telegrams were
sent, has been duly proved by the prosecution not only through
PW1, but through PW2, PW4, PW41, PW42, PW44, PW46,
PW49, PW92, PW93 and PW94 and so are the contents therein.
The faxes and telegrams were promptly sent and infact even
S.Q. Pathan / N.S. Chitnis 290/867
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received by the authorities, prior to the encounter, and as such,
the question of fabricating/creating any evidence does not arise.
PW2 – Ganesh Iyer :
77 PW2–Ganesh Iyer is an Advocate friend of PW1, who
was present throughout with PW1, after PW1 informed him
th
about the abduction of his brother. He has stated that on 11
November 2006, being a Saturday and a holiday, he had gone to
Infinity Mall, Andheri, Versova to see a movie at about 12:30 hrs;
that at about 14:00 hrs, he received a call from PW1 informing
him that his elder brother Ramnarayan and his friend Anil Bheda
were forcibly taken by 4–5 persons who looked like police, from
Sector 9, Vashi, Navi Mumbai; that PW1 told him to meet him
urgently; that he told PW1 to come to his Sion Office and that he
would join him there; that when he reached his Office, PW1
again disclosed the same to him; that PW1 called PW38 from his
mobile and spoke to Aruna Bheda and that he too spoke to Aruna
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Bheda on phone; that Aruna Bheda informed him (PW1) that her
husband Anil and Ramnarayan were kidnapped by 4 to 5 persons
in a Qualis vehicle from Sector 9, Navi Mumbai in front of a
mobile shop and that their lives were in danger and that he
should save them; that he told her to go to the nearest post office
and send telegrams to the CP, Mumbai, Thane and Navi
Mumbai; that PW40 told her that she did not know how to send
a telegram and asked him to send telegrams on her behalf; and
that he also told her to go to the nearest police station and inform
about the said incident. According to PW2, they went to Rabale
Police Station to find out whether Ramnarayan and Anil Bheda
were taken by the police of the Property Cell of Crime Branch,
Mumbai, however, they learnt that they had no idea of the same.
He has further stated that when PW40 told him to send the
telegram on her behalf, he asked her the address of her house on
phone, pursuant to which, she gave her address as Diamond
Apartment, Sector 29, Vashi, Navi Mumbai; that thereafter, he
and PW1 went to Central Matunga Telegraph Office on
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motorbike; that they reached there at about 16:00 hrs. and
collected 3 telegram forms; that he filled up the form and sent the
telegrams to Shri A.N. Roy, CP, Mumbai, to CP, Navi Mumbai
and to Mr. D. Shivanandan, CP, Thane; that the said telegrams
were sent to save the lives of Ramnarayan Gupta and Anil Bheda,
as there was possibility of them being killed in a fake encounter;
and that he had written the messages in all the 3 telegrams. The
said witness has identified the said forms. PW2 has admitted that
the said telegrams, which are at Exhibits–114, 115 and 116, are
in his handwriting and that he had given these telegrams to the
telegraph office and had paid for the telegrams for which 4
receipts were issued. He has identified the 4 receipts [Exh.–119
(colly)] out of 6, which were issued by the Matunga Telegraph
Office. PW2 has further stated that the telegrams were sent at
about 16:08 hrs; that thereafter, he went to his office alongwith
PW1, where they decided to send fax messages to the CP,
Mumbai, Thane and Navi Mumbai; that pursuant thereto, they
went to Ratnadeep Store, Jain Society, in front of SIES College,
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Sion, Mumbai; that PW1 contacted his friends and obtained the
fax numbers of the above offices of the Commissioners before
visiting the store; that after making some changes in the telegram
message, fax message was prepared and that they handed over the
message to that store, at about 16:45 hrs; that fax was sent to CP,
Thane and Navi Mumbai, however, the fax message to the CP,
Mumbai, could not be sent as they were not getting a clear tone;
that the delivery reports of the receipt of the fax messages were
received by the store owner and that they got the delivery reports
from him. He has identified the Delivery Reports, which is at
Article-1.
77.1 PW2 has further stated that thereafter, they came
back to their office; that PW1 telephoned his friend including PI-
Arun Chavan, Property Cell, Crime Branch, however, he did not
get any information; that thereafter, they decided to send
telegrams to the Chief Minister and Dy. Chief Minister of the
Maharashtra State and accordingly, went to Matunga Telegraph
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Office at about 18:00 hrs; that Matunga Telegraph Office was
closed and hence, they went to Dadar Telegraph Office and
collected 2 telegram forms, one of which was written by him and
the other by PW1; that he sent the telegram to Shri Vilasrao
Deshmukh, CM and PW1 sent the telegram to Shri R. R. Patil,
Dy. CM (Exh.–118). He has identified the forms given by the
Telegraph Office and the payment receipts (Exh.–119). He has
further stated that the said telegrams were sent at about 61830
hrs.
77.2 According to PW2, when they were in the Telegraph
Office at Dadar, PW1 received a call on his mobile; that PW1
told him about the message received i.e. API Prakash Bhandari
had taken both Anil Bheda and Ramnarayan Gupta to Belapur
Crime Branch; that pursuant thereto, they went to Belapur Police
Station; that they reached the Belapur Crime Branch
Commissioner’s Office premises at about 20:00 hrs. and asked
the security guard whether two persons were brought to the
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office; that he disclosed to them that nobody was brought to the
office on that day and that they could check and ascertain
whether anybody was brought; that he and PW1 went inside and
checked, however, nobody was found there. PW2 has further
stated that when they were at Belapur Railway Station and having
tea at about 20:30 hrs., PW1 received a call from his brother
(PW3), who informed him, that he learnt from the TV news, that
Ramnarayan was killed in a police encounter. PW2 on hearing
the same, told PW1 that they should go to his office. PW2 called
his friend Advocate Desai on his mobile and informed him about
the death of Ramprasad's brother and told him that they were
going to the spot; that Advocate Desai told them that he would
also accompany them; that he told Advocate Desai to come to his
office; that he also called his driver and asked him to come to his
office; that when he and Ramprasad (PW1) reached the office at
about 21:30 to 21:45 hrs, Advocate Vijay Desai, Advocate Kudart
Shaikh and Driver Raja were already present in his office i.e. the
office of PW2; that thereafter he alongwith Ramprasad,
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Advocate Desai, Advocate Kudart Shaikh and Driver Raja left in
a car, to Versova Police Station; that they reached Versova Police
Station at about 22:15 hrs. and inquired with the station house
officer about the news of killing of Ramnarayan in a police
encounter; that the officer told them that he did not receive any
information and told them that in case they wanted to make
further inquiry, they should go to the spot and hence they
proceeded towards the spot; that they reached the Nana Nani
Park at about 10:25 hrs and got down from the said vehicle,
however, they did not find anything which would reveal that an
encounter had taken place; that they saw an electric pole near the
end of the park and found blood stains on the ground near the
pole; that on the blood stains, paper was kept and on the paper
a stone was placed; that he told PW1 to take a video clipping on
his mobile, pursuant to which he took a video clipping of the
electric pole and the place where blood and the paper was seen
near the electric pole. He has stated that there was a building by
the name of Magnum Opus; that when they reached the Nana
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Nani Park and inquired with the people, they learnt that no such
encounter had taken place. Although, one person i.e. watchman
of Magnum Opus, disclosed to them, what he had seen, the same
being hearsay, is not considered, inasmuch as, the said
watchman’s statement was also not recorded. PW2 has identified
the telegram which was sent by him to Shri Vilasrao Deshmukh,
CM of Maharashtra, which was in his handwriting Exh.–117. He
has accepted the contents therein, as true and correct. After
seeing the video clipping, PW2 has stated that the said video
th
clipping was taken by Ramprasad Gupta on 11 November 2006
at 22:44 hrs.
77.3 PW2 has further stated that he prepared the draft of
the fax. He has identified his handwriting and as such the
document is marked as Exh.-120. He has further stated that on
th
18 November 2006, he had written a letter to the head of the
Post Office, Matunga Central Telegraph Office to preserve the
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telegrams, which were sent on 11 November 2006; that he
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received acknowledgment of the receipt on the copy of the letter.
The same has been marked as Exh.–150.
77.4 In his cross-examination, PW2 had confirmed that he
had learnt from PW1, that Ramnarayan and Anil Bheda were
forcibly taken away in a silver coloured Qualis by 4 to 5 persons
who were looking like police. He has stated that he had learnt
that the abduction had taken place in front of a mobile shop,
Sector 9, Vashi, Navi Mumbai. PW2 has admitted that he had not
mentioned about the mobile shop in the telegrams, and that he
had learnt from Ramprasad (PW1) that the person who informed,
was not a witness to the incident. He has further stated that he
himself had not seen the place of incident before sending out the
telegrams. He stated that he had received a call from PW1 at
about 2.00 pm. It is pertinent to note that it has been brought in
the cross-examination of PW2 that he reached the spot at 10:40
p.m. i.e. at Nana Nani Park.
S.Q. Pathan / N.S. Chitnis 299/867
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77.5 He has further stated that he had not inquired with
PW1 as to why he was not forwarding the telegrams in his own
name, as he did not feel it was necessary to do so.
78 Not only PW1 and PW2 corroborate each other in all
material particulars, but even the fax and telegrams sent by PW1
and PW2 have been duly corroborated by the witnesses, who
were examined from the respective post offices. One of the fax
message sent to the CP, Navi Mumbai, at Exh.–120 reads thus:
“THIS IS TO BRING TO YOUR KIND NOTICE
THAT MY HUSBAND ANIL BHEDA AND HIS
FRIEND RAMNARAYAN VISHWANATH GUPTA
HAS BEEN PICKED UP BY PLAIN CLOTHES
POLICEMAN FROM SECTOR 9, VASHI, NAVI
MUMBAI. THAT THE SAID POLICEMAN WERE IN
A SILVER COLOUR QUALIS CAR.
I SUSPECT THAT THEY WILL KILL THEM IN
A FAKE ENCOUNTER.
PLEASE SAVE THEIR LIFE.”
FROM
ARUNA ANIL BHEDA
SECTOR 29, VASHI,
DIAMOND APARTMENT
S.Q. Pathan / N.S. Chitnis 300/867
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NAVI MUMBAI.”
79 The telegrams/faxes sent by PW1 and PW2 were duly
received by the concerned authorities i.e. CP, Thane, Navi
th
Mumbai and Mumbai on 11 November 2006 at about 18:00
hrs. are at Exhibits 114, 115 and 116 respectively. The contents
of all telegrams are identical. One such telegram at Exh.–115
reads thus :
“RAMNARAYAN VISHWANATH GUPTA AND
ANIL BHEDA PICKED BY POLICE IN SILVER
COLOUR QUALIS FROM SECTOR 9, VASHI. THEIR
LIFE IS IN DANGER. PLEASE HELP AND SAVE THEIR
LIFE.
(ARUNA ANIL BHEDA)”
PW40 – Aruna Bheda
80 PW40–Aruna Bheda, is the wife of Anil Bheda. She
has stated that in 2006, she was residing at C-45, Room No.1,
Sector 29, Diamond CHS, Vashi on rental basis with her husband-
Anil Bheda and son-Parth and that Parth was studying in St.
Mary’s School; that her husband was earlier working as a trading
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agent in APMC, however, as he had suffered losses in the said
business, he started doing real estate business; that Anil Bheda
had two friends viz. Pandeyji @ Ramnarayan (deceased) and
Dheeraj Mehta (PW38); that both of them were also carrying out
the business of real estate; that Dheeraj (PW38) was also
conducting business of selling stones relating to zodiac signs; that
Pandeyji used to visit their house in relation to property dealings
and hence, she knew him personally; that stones were taken from
Dheeraj Mehta for her relations and hence, he also came to their
house for property dealings and that she knew him personally.
th
80.1 PW40 has further stated that on 11 November 2006,
there was an open day in her son’s school and hence she had been
to her son’s school at about 9:30 hrs; that she returned at about
10:45 hrs; that she met her husband and Pandeyji at the building
gate while returning home; that they informed that they were
going to Maruti Temple and hence, Pandeyji and her husband
alongwith their son-Parth left in an auto rickshaw; that they
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returned at 11:30 hrs; that they had breakfast and tea at her
house; that her husband and Pandeyji left the house at about
12:15 hrs; stating that they were going to refill the mobile and
that they were going to Dheeraj Mehta’s shop for property deals;
that her husband had at that time, a mobile of Reliance Company
having number XXXXXX3863); that at about 2.30 hrs, PW38
hurriedly came to her house and told her that 4 to 5 persons had
taken Anil and Pandeyji in a Qualis vehicle and that they were
taken from outside the shop, and that the same was told to him
by the shop owners adjacent to the road and adjacent to his shop;
that PW38 also disclosed that he received a call from one Girish
Nepali (PW57) and that he informed the incident to him; that he
also received a call from Pandeyji's brother by name Gupta; that
he informed Guptaji about the incident; that Guptaji had told him
to immediately lodge a police complaint; that PW38 told her that
he had informed Guptaji that he would decide future course of
action after meeting her (PW40); that when PW38 came to her
house, he received a call from Gupta (PW1); that PW38 handed
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over his phone to her, pursuant to which she spoke to PW1; that
PW1 informed her that alongwith his brother, her husband, Anil's
life was also in danger and asked her to fax higher officials; that
PW1 further disclosed that he was apprehending that they would
be killed in a false encounter and hence, gave her the names and
addresses of officers, to whom she should fax; that as she did not
know how to send a fax, she refused; that she told him that she
would discuss and then decide further course of action; that she
told PW38 as they did not know how to fax, they should not send
a fax, and also that they did not want to get involved in any false
hassles.
80.2 PW40 has further deposed that she decided to wait
till 5:00 pm and then decide further course of action; that PW38
left her house and returned again at 5:00 hrs, and asked her if she
had received any information about Anil; that as she did not
receive any information, they decided to go to the police station
and lodge a missing complaint regarding Anil; that at about 6:00
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to 6:30 pm, Dheeraj left her behind Vashi depot on his
motorcycle and she went alone to the Vashi police station and
met the constable in the police station and lodged a missing
complaint of her husband-Anil Jethalal Bheda; and that her
statement was recorded by the said police constable being Missing
Complaint No. 51/06 (Exh.-306). She has accepted the
correctness of the said complaint. She has further stated that on
her return home, her son-Parth informed her that the police from
Vashi Police Station had come to the house and had asked for a
photograph of her husband, pursuant to which, she took the
photograph of her husband and went to Vashi Police Station at
about 21.30 hrs. and gave the photo to the same constable who
had recorded her complaint (Exh.–306).
th
80.3 PW40 has further stated that on the next day i.e 12
November 2006, in the morning, she read in the Gujarati
Newspaper that Pandeyji had been killed in a police encounter;
that she called Dheeraj Mehta (PW38) from the PCO and
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informed him about the news she read; that PW38 came to her
house and asked her to go to the police station and make inquiry
about the missing complaint lodged by her; that she went to Vashi
Police Station at about 11:30 hrs and made inquiry; that she met
a senior officer of the police station D.B. Patil and gave
information about the missing complaint; that D.B. Patil told her
that in case her husband returns home, she should withdraw the
complaint and as such she returned home; that at about 2:30 hrs,
she called her brother-in-law Dhiraj Bheda and informed him
about the missing complaint lodged by her and asked him to help
her, since she was alone; that about 17:00 hrs. she went back to
the Vashi Police Station alongwith her brother-in-law and his
wife; that she went alone inside the police station; that whilst she
was waiting, her husband Anil Bheda came to the police station;
that she asked him where he had gone, to which he replied that
he had gone to Shirdi; that at that time Senior Officer D. B. Patil
came there and took them to his cabin and made inquiries with
her and her husband Anil and recorded their statements; that D.
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B. Patil showed them one fax and inquired whether she had
forwarded the said fax, to which she replied that she cannot read
and write in English and as such had not sent the said fax; that
she was asked to meet the police constable and was asked to
withdraw the missing complaint and that accordingly she
withdrew the missing complaint by affixing her signature (Exh.-
th
307). PW40 has deposed that on 12 November 2006, when
they came out of the Vashi Police Station, her husband-Anil
informed her that Pradeep Sharma’s men had taken him and his
friend Pandeyji in a Qualis vehicle from Vashi, Sector 9; that they
were taken to D.N. Nagar Police Station, Andheri and produced
before Sharma and on that night, Pandeyji was killed in an
encounter; that her husband stated that Police Officer by name
A.T. Patil (PW104) mediated on his behalf and hence, he was
released. The said recording of evidence i.e. disclosure made by
Anil Bheda to PW40 was objected to by the learned counsel for
the appellant (OA1), however, the said evidence was recorded by
the trial Court, subject to objection.
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80.4 According to PW40, when they stepped out of Vashi
Police Station, one Qualis vehicle was standing at a distance and
that her husband had told her that they had to go in the said
vehicle; that in the said vehicle, there were two police officers in
plain clothes by the name Desai (A2) and Rattu (A3).
80.5 As far as the other evidence of PW40 is concerned, it
pertains to confinement of her husband-Anil Bheda and as such
will be dealt with, when we discuss the said circumstance.
80.6 PW40 was cross-examined at length by the learned
th
counsel for the appellants with respect to the incident of 11
th
November 2006 and 12 November 2006; with respect to what
th
happened on 11 November 2006, pursuant to the disclosure
made to her by PW38.
80.7 In her cross-examination, PW40 has admitted that
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Pandeyji had breakfast at her house for the first time on 11
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November 2006, pursuant to which, both Pandeyji and Anil
Bheda left to refill Bheda’s mobile bearing number
XXXXXX3863; that Anil Bheda had informed her that they
were going to the shop of one Dhiraj; that she did not receive any
message from Anil after 12:15 hrs. PW40 has further admitted
that she knew one Girish Nepali (PW57) as he had come
alongwith Pandeyji regarding a property deal. She further
admitted that “we did not want ……. hassles”, appearing on page
no. 40/3 of her examination-in-chief, wherein “we” refers to her,
PW38 and Anil.
th
80.8 PW40 has admitted in her cross, that on 11
November 2006, Dheeraj (PW38) had left her house about 15:00
–15:15 hrs. and before he left, they had decided to wait till 5.00
hrs; that subsequently, she had gone to Vashi Police Station alone
and lodged a missing complaint; that she did not inform the
police officer that Guptaji (PW1) and Ganesh Iyer (PW2) had
expressed fear that her husband would be killed; and that when
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her husband went missing, one person by name Pandeyji was with
him; or that her husband had gone missing from Sector 9 of
Vashi.
80.9 PW40 has further admitted, in her cross-examination,
that after reading the newspaper article that the police had fired
at Pandeyji in defence, she did not contact the concerned police
station and inquire about Anil, as she was scared; that she did not
approach Versova Police Station to confirm about the incident as
informed to her by Dhiraj; that she visited Vashi Police station on
th
12 November 2006 and inquired with regard to the said article
as well as her husband’s whereabouts. PW40 has stated that she
th
saw her husband-Anil Bheda on 12 November 2006, after the
th
incident of 11 November 2006. She has stated that Anil’s life
was in danger and that Anil whispered to her, when the fax was
shown by D.B. Patil, that his life was saved because of the said
fax. PW40 has admitted that Anil, however, did not disclose to
D.B. Patil about the same.
S.Q. Pathan / N.S. Chitnis 310/867
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80.10 PW40 has corroborated the sequence of events, as
disclosed by PW38, PW57, PW1, PW2 and PW3 vis-a-vis
abduction of Ramanarayan and Anil Bheda. Just because PW40
did not lodge a complaint of abduction of her husband and
instead lodged a missing compliant, would not render the
prosecution case or even the evidence of PW40, doubtful. The
reasons for not sending the faxes, was apparent, as disclosed by
PW40, that they did not want hassles. The conduct of PW40
appears to be natural, inasmuch as, PW40 had learnt that
Ramnarayan and Anil Bheda were picked up by the police and
what was disclosed by PW1 to her, that Ramnarayan and Anil
Bheda’s lives were in danger. PW40’s evidence inspires
confidence and nothing material is brought in her cross-
examination to disbelieve her testimony or to discredit her
evidence.
PW6–Mahesh Manohar Mule
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81 PW6 was an advocate since 1998, practicing in the
Sessions Court at Mumbai and knew Ramprasad Gupta (PW1).
He has stated in his examination-in-chief, that PW1 called him
th
at about 4 to 4:30 hrs on 11 November 2006, to inquire about
the fax numbers of the CP, Mumbai and other top ranking Police
Officials of Mumbai; and that he only had the number of one
official in his diary and that he gave the same to PW1.
82 Although, the witness was declared hostile by learned
Spl. P.P as he did not depose in his examination-in-chief with
regard to disclosure made by PW1 to him, PW6 in his further
examination by the learned Spl. P.P, admitted that PW1 had
stated to him that his brother Lakhanbhaiya (Ramnarayan) and
his friend have been taken by the police from Vashi; and that
PW1 feared something untoward would happen to his brother.
83 Nothing substantial has been elicited in the cross-
examination of this witness conducted by the accused. Infact, the
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suggestion i.e. PW1 had informed him that he had to create an
alibi and hence, he asked him the phone numbers, has been
denied by this witness.
PW8-Amit Ashok Jambotkar :
84 PW8, is an advocate, practicing since 2000 in the
Sessions Court at Mumbai. He has stated that he received a call
th
from PW1 between 16:00 to 16:30 hrs. on 11 November 2006
and was asked to make inquiries at the Crime Branch Office at
Thane, about his brother Ramnarayan who had been picked from
Vashi; that he went to the Crime Branch Office at Thane, but
could not make any inquiry; that PW1 called him again at about
6:00 to 6:30, and asked him if he had received any information,
to which he replied that since it was a Saturday, the office was not
working and he could not find anybody there. PW8 has stated
that PW1 had not disclosed anything further and that he learnt
about the death of Ramnarayan Gupta in an encounter when he
S.Q. Pathan / N.S. Chitnis 313/867
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saw the news on television at about 20:00 hrs. to 20:30 hrs.
84.1 In his cross-examination, it was confirmed by PW8
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that he spoke to PW1 twice on 11 November 2006, however,
apart from that, nothing material has been elicited.
85 The evidence of the witnesses with respect to
abduction of Ramnarayan and Anil Bheda stands corroborated
interse with all the witnesses as stated aforesaid. The said
evidence is also supported by documentary evidence i.e. faxes and
telegrams sent to the authorities by PW1 and PW2 and the
evidence of other witnesses vis-a-vis sending of faxes and
telegrams.
86 The evidence on record shows that telegrams and
th
faxes were sent by PW1 and PW2 on 11 November 2006
between the period 16:00 hrs and 18:30 hrs. The prosecution
has examined the following witnesses to prove the sending of
faxes and telegrams; PW4–Shaligram Wankhade, Sub-Divisional
S.Q. Pathan / N.S. Chitnis 314/867
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Engineer in Central Telegraph Office, PW5– Rachana Vanjare,
who was working as a Clerk in B.S.N.L, PW41–Wasudeo Channe,
who was working as Customer Service Centre, BSNL, Prabhadevi
Exchange, Mumbai, PW42 – Bhavka Bhangare, who was
working as Assistant at Matunga Telegraph Office, PW44–Arjun
Satam, who was working as Telegraph Assistant at Dadar
Telegraph Office; PW47–Santosh Naik, working as Writer in the
Main Control Room and PW49–Ravindra Kulkarni, working as
PA in the office of CP, Mumbai.
PW4 – Shaligram Kashiram Wankhade:
87 PW4 was working in the Central Telegraph Office,
Mumbai at the relevant time. The original telegram forms dated
th th
11 November 2006 were handed by him to the police on 29
March 2010. He has stated that the police verified from him
that the said telegrams were sent from Dadar and Matunga Post
Office and accordingly recorded his statement. PW4 has
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identified the original telegram forms i.e. Exhibits– 114 to 118.
He has stated that Exhibits–114, 115 and 116 were sent from
Matunga Telegraph Office, Mumbai and Exhibits–117 and 118
were sent from Dadar Telegraph Office, Mumbai, and that the
th
said telegrams were sent on 11 November 2006. He has stated
that Exh.–114 was sent to Shri D. Shivanandan, CP, Thane at
16:08 hrs, Exh.–115 was sent to the CP, Navi Mumbai, Belapur at
16:08 hrs., Exh.–116 was sent to Shri A.N. Roy, CP, Mumbai on
16:08 hrs.; Exh.-117 was sent to Shri Vilasrao Deshmukh, Chief
Minister, Varsha Bungalow, Mumbai, at 18:28 hrs. and Exh.–118
was sent to Shri R.R. Patil, Deputy C.M. Chitrakut Bungalow,
Malabar Hill, Mumbai at 18:28 hrs. He has also deposed with
respect to whom the said telegrams were sent i.e. the authorities.
He has also identified the receipts Exh.–119 (colly) issued by the
office and that the said receipts were charges for sending
telegrams, issued in due course of business. He has stated that
although initially the police obtained certified copies of telegrams,
subsequently, the original was handed over to the police. The
S.Q. Pathan / N.S. Chitnis 316/867
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correspondence exchanged between him and the police
authorities was marked as Exhibits–159 and 160. Nothing
material has come in the cross-examination of the said witness to
discard his testimony with respect to sending of telegrams by
PW1 and PW2.
PW41 – Wasudeo Chindhuji Channe:
88 PW41 was working in the Customer Service Centre,
BSNL, Prabhadevi Exchange, Mumbai, as In-charge Chief
th
Telegraph Master. He has stated that on 26 August 2011, Shri
Ghorpade (PW108) of SIT came to his office and gave him a
letter requesting him to give information regarding the telegrams
sent from Matunga and Dadar Offices. He has stated that the said
letter was received by him (Exh.–324 colly) and that along with
the said letter, photocopies of the telegraph receipts were also
forwarded. The said witness produced the original Telegraph
Master Diary in the Court wherein the name of the staff working
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in the said Telegraph Office at the relevant time with respect to
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the telegraph receipts dated 11 November 2006 is mentioned.
He has stated that as per the photocopies of the receipts given to
him, the telegrams were sent from Dadar Telegraph Office on
th
11 November 2006 at about 18:28 hrs by Shri A. G. Satam, who
was working at the Dadar Telegraph Office at the relevant time;
that the said two telegrams of Dadar Telegraph Office were
booked during the working hours of Shri Satam (PW44) and that
the entries in the register were in the handwriting of V. S. Gupta
and as such, he being acquainted with his handwriting, he has
identified the handwriting thereon. A copy of the entry was kept
with the original and marked as Exh.–325A. He has stated that
the said Master Diary Register was maintained in the regular
course of business.
88.1 As far as photocopies of receipts are concerned, he
has stated that three telegrams were sent from Matunga Telegraph
th
Office on 11 November 2006 at 16:08 hrs; that on perusal of
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the Telegraph Master Diary of that day, Shri Bhangare (PW42)
was working at the Matunga Telegraph Office from 11:00 hrs to
19:00 hrs; that the three telegrams of Matunga Telegraph Office
were booked during the working hours of said Shri Bhangare
(PW42); that the entries in the register are in the handwriting of
P.L. Meshram and that being acquainted with Meshram's
handwriting, he has identified the entries made in the said
register. The said register is marked as Exh.–326A.
88.2 The said witness was cross-examined only by the
learned counsel for the OA1. Nothing has come in the cross-
examination of the said witness to disbelieve his testimony with
respect to production of documents and sending of telegrams.
PW42–Bhavka Maruti Bhangare:
89 PW42–Bhavka Bhangare, was working at the
Matunga Telegraph Office as Telegraph Assistant in 2006. It was
his duty to accept telegrams at the counter, book it and issue
S.Q. Pathan / N.S. Chitnis 319/867
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receipts of charges. The said witness has deposed with respect to
having booked the said telegrams i.e Exh.–114. He has also
deposed with respect to receipts issued by him i.e. 119 (colly). He
has stated that the time, date and serial number of 119/1 tally
with the endorsement on the telegraph form i.e. Exh.–114. He
has stated that the endorsement on Exh.–114 was made whilst
issuing certified copies. PW42 has stated that there is an
endorsement of Farooq Mujawar, who was working with him and
that he knew his handwriting and signature and as such has
identified the same. The said witness also deposed with respect to
other Exhibits i.e. Exhibits–115, 119/2, 116, 119/3 and 119/4.
The said witness has deposed with respect to how telegrams are
sent, how notings are made and how receipts are issued including
electronic endorsement made on the said exhibits.
89.1 The said witness was cross-examined by advocate
appearing for OA1 and A9. Although, the said witness was cross-
examined at some length, the credibility of the said witness has
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not been demolished by the said cross. He has denied the
suggestion that Exhibits–114, 115 and 116 are bogus documents.
He has denied the suggestion that he had prepared bogus
document i.e. Exhibits–114, 115, 116 and 119 (colly) in
collusion with the complainant (PW1) and that he was deposing
falsely due to pressure of SIT.
PW44 – Arjun Gangaram Satam:
90 PW44 – Arjun Gangaram Satam was working at the
Dadar Telegraph Office as Telegraph Assistant. At the relevant
time, his duty included booking of telegrams, attending booking
counter, receiving telegrams from the customers, etc. He has
stated that when shown the photocopies of two telegrams sent on
th
11 November 2006 and on seeing the writing on the said
telegram forms, he has identified his writing thereon, and has
accordingly disclosed to the officer of the SIT, that he had booked
the said telegrams i.e. Exh.-117. He has stated that the said
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telegram is in his handwriting and he has identified the same. He
has stated that he had received the said telegram forms and
accordingly had booked the said telegrams. He has given the
details of the words appearing in the telegrams as to what they
represent. He has stated that the said telegram was sent to the
Chief Minister Shri Vilasrao Deshmukh and since the said address
fell within the jurisdiction of Girgaon Telegraph Office, he
forwarded it to Girgaon Telegraph Office. The said witness has
stated with respect to who had booked the said telegram and has
identified the handwriting on the said telegram form.
91 Although the said witness was cross-examined, there
is nothing to disbelieve his evidence, inasmuch as, he is a witness
who had no axe to grind against the appellants-accused. He has
given his evidence and has stated the duties performed by him in
the official course and has identified the telegram sent by him.
92 It is thus evident from the evidence of the aforesaid
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four witnesses, that the telegrams were sent as deposed to by PW1
and PW2, to the authorities as stated aforesaid. There is no
reason to disbelieve the testimonies of the said witnesses who are
all public servants nor can it be said as suggested, that they were
falsely deposing of having sent the telegrams, at the behest of
PW1 and PW2.
93 In addition to the aforesaid witnesses from postal
authorities, the prosecution also examined witnesses from the
Commissioner’s Office, i.e. Mumbai, to prove receipt of telegram
at the said office.
PW47-Santosh Khimji Naik :
94 The prosecution examined PW47, who was working
as a Writer in the Main Control Room, Mumbai, at the relevant
th
time with respect to receipt of telegrams sent on 11 November
2006. PW47 in his evidence has stated that he was working as a
S.Q. Pathan / N.S. Chitnis 323/867
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Writer in the Main Control Room, Mumbai, at the relevant time;
that the duty of a Writer of the Main Control Room was to
receive correspondence after office hours on working days; that
in November 2006, he was the Writer in the said department
alongwith two constables; that after correspondence is received,
entry with respect to the same is made in the 'Charge Book'; that
when the correspondence is delivered to the concerned officer,
the acknowledgment is also taken against the same in the Charge
th
Book. PW47 when shown the telegram dated 11 November
2006 (Exh.-116), has stated that he received the said telegram
bearing No. “11 127”; that he made an entry about the receipt of
the said telegram in the Charge Book; that the telegram was
addressed to A. N. Roy, CP, Mumbai; that he personally made an
entry in the Charge Book i.e. page No. 4 bearing No. 509; that
the said entry is in his handwriting and that the contents are true
and correct. The said entry was marked as Exh.–355, subject to
objection; that the said telegram was handed over to the
th
concerned department on the next working day i.e. 13
S.Q. Pathan / N.S. Chitnis 324/867
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th
November 2006 (12 November 2006 being a Sunday); that the
telegram had come in a sealed envelope with an address window
through which, it could be seen, that it was addressed to A. N.
Roy, and number “11 127” could be seen.
95 The said witness was cross-examined only by learned
counsel for OA1. The said witness, in his cross, has admitted that
the Charge Book was not in a printed form; that it was not
maintained as per the Bombay Police Manual. The said witness
has further admitted that despite the general practice of putting
an inward stamp on any correspondence received, the said
telegram did not bear any seal, signature or rubber stamp of the
department. We, having regard to the evidence on record, find
no reason to disbelieve PW47’s testimony which clearly shows
th
that the telegram was received by the Office of the CP on 11
November 2006. The entry register produced by the said witness
with respect to having received a telegram, marked as Exh.–355,
shows receipt of the said telegram addressed to the CP, Mumbai
S.Q. Pathan / N.S. Chitnis 325/867
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th
on 11 November 2006. The telegram addressed to A. N. Roy,
CP, Mumbai, was marked as Exh.–356. In the said telegram, it is
stated that “ RAMNARAYAN VISHWANATH GUPTA AND ANIL
BHEDA PICKED UP BY POLICE FROM VASHI SECTOR 9 THEIR
LIFE IS IN DANGER PLEASE HELP AND SAVE THEIR LIFE -
ARUNA ANIL BHEDA. ”
PW49– Ravindra Vasudev Kulkarni:
96 PW49 was working as a PA in the Office of the CP,
Mumbai, at the relevant time. He has stated that a telegram was
addressed to A.N. Roy, CP i.e. Exh.–356. He has identified his
initial and the date appearing on the same. The said portion is
marked as ‘B’ on Exh.–356. He has put his initial of having
th
received the said telegram on 13 November 2006 and the stamp
of inward office put by constable Yemgekar. He has stated that
the entry of the said telegram has been taken in the inward
register. The said witness has produced the original register and
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entry bearing No.32868 dated 13 November 2006 pertaining to
S.Q. Pathan / N.S. Chitnis 326/867
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the said telegram (Exh.–356). He has stated that as the telegram
indicated danger to life, it was immediately forwarded to the
Addl. C.P. The relevant entry was marked as Exh.–366 and the
copy of the said entry, after verifying with the original, was
marked as Exh.-366A. He has stated that the original telegram
was immediately sent to the Addl. CP, Crime; that the original
and one photocopy of the telegram was taken and placed before
the CP, since the letter was addressed to him.
97 The said witness i.e. PW49 has duly corroborated the
evidence of PW47 with respect to the Office of the CP, Mumbai
th
receiving a telegram on 11 November 2006.
98 As far as faxes are concerned, the prosecution has
examined PW92-Dinkar Thakur, PW93-Sadashiv Barak, PW94-
Sunil Somawanshi and PW46-Lakkaraju Narsimha.
PW92–Dinkar Shrikisanrao Thakur :
S.Q. Pathan / N.S. Chitnis 327/867
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th
99 PW92 tendered his affidavit dated 17 August 2012,
which was marked as Exh.–694 (colly). Although exhibiting of
the said affidavit was objected to, the said objection was
overruled and the document i.e affidavit was marked as Exh.–694
(colly). The said affidavit tendered by this witness i.e. PW92, is
with respect to his signature and also with respect to the contents
of the document. The said witness in his affidavit has stated that
st
on 1 March 2012, the Spl. P.P had issued a notice and called
upon the office of the ACP, Control Room, Navi Mumbai, to
th
produce the original fax message book containing entries of 11
st
November 2006 before the Court on 1 March 2012. He has
stated in his affidavit that although all records of the Control
Room were searched thoroughly and he had personally inquired
with the concerned police personnel regarding the fax message
book, however, the said fax message book could not be traced;
that the said fax message book appears to have been misplaced in
the shifting of the Control Room in the first week of December
2011, to the ground floor of the same building, and hence, he
S.Q. Pathan / N.S. Chitnis 328/867
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was not in a position to produce the original fax message book.
He has reiterated whatever is stated in his affidavit, in his
evidence. He was cross-examined with respect to misplaced fax
message book, however, the said witness has denied seeing any
entry anywhere as regards the misplaced fax message book.
PW93 – Sadashiv Vithoba Borale :
100 As far as PW93–Sadashiv Borale is concerned, he has
stated that he was attached to CBD Control Room, to the office
of the CP, Navi Mumbai, at the relevant time. He has stated that
th
on 11 November 2006, he was on duty in the said Control
Room, Mumbai. He has deposed that he would receive calls and
make entries of the faxes received in the Control Room. He has
stated that an entry was made in the Register with respect to fax
only, and after taking entry in the Register, it was sent to the
officer in whose jurisdiction the incident had taken place. PW93
was shown the xerox copy furnished by the P.I. Control Room,
S.Q. Pathan / N.S. Chitnis 329/867
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Navi Mumbai i.e. entry bearing No.1770 in his handwriting. He
has stated that the said fax message was sent by Aruna Bheda
from Sector No.29, Vashi, stating that ‘ v:.k HksMk o R;kps fe=
;kauk lk/ks os’kkrhy iksfylkauh mpywu usysckcr ’. (Regarding
Anil Bheda and his friend being picked up by police in civil dress) .
th
He has stated that the Control Room received this fax on 11
November 2006 at 16:45 hrs; that he sent the said fax through a
constable from the APMC Police Station to Vashi Police Station;
that the fax was in Marathi and the contents in the entry are true
th
and correct. The entry dated 11 November 2006 was marked as
Exh.–696. He has stated that he inadvertently in a hurry wrote
‘Arun’ instead of ‘Anil’.
100.1 PW93, in his cross-examination has admitted that the
fax entry is taken only in the Fax Message Book; that a Station
Diary is maintained in the Control Room; that he had no
occasion to see the said fax again at anytime after making the
entry in the fax message book and after sending it to Vashi Police
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Station and that no one made any inquiry in respect of the
misplaced/lost fax message book. PW93 has further deposed in
his cross, that the entry of fax message is not made in the Station
Diary and was made in the fax message book and that there is
nothing in Exh.–696 to show that its a page of the fax message
book and that there is no mention in the said entry that a fax was
th
received. He has further stated that except the entry dated 11
November 2006, there was no other proof to show that the
Control Room had received the fax and on its basis the entry was
made. At serial No.1770 of Exh.–696, there is an entry as stated
aforesaid. The said entry read thus :
| 1770 | v:.kk<br>vfuy<br>HksMk]<br>jk- ok’kh | v:.k HksMk o R;kps<br>fe= ;kauk lk/;k os’kkrhy<br>iksfylkauh mpywu usys ckcr- | 11-11-2006<br>16-45 |
|---|
English translation of the above entry, reads thus :
| 1770 | Aruna Anil<br>Bheda<br>R/o. Vashi | Arun Bheda and his friend<br>were picked by plain<br>clothes police men. | 11.11.2006<br>14.45 |
|---|
S.Q. Pathan / N.S. Chitnis 331/867
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The entry appears to have been made in the usual course of
business and in course of the official duty, and as such, there is no
reason to disbelieve the evidence of PW93 of having received the
th
fax on 11 November 2006, as stated aforesaid.
PW94-Sunil Sampatrao Somawanshi:
101 PW94 has stated that he was attached to the Control
Room, Navi Mumbai at the relevant time. He has stated that on
th
12 November 2006, he was on day duty in the Control Room,
th
Navi Mumbai. The said witness was shown entry dated 12
November 2006 at Page No.63. The said witness has stated that
there are two pages of page No.63. On being shown the second
page of page No.63, he has identified his handwriting on the said
page from the Station Diary i.e. entries from serial Nos. 17 to 22
as well as the entries at serial Nos.20 and 21. PW94 has stated
that entry at 11:45 hrs is as regards to a phone call made by PI–
Sonawane from Thane City Police Control Room informing him
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that one Aruna Anil Bheda had sent a fax message to Thane City
Police Control Room stating that her husband Anil Bheda and
another person Ramnarayan Gupta were taken in a silver colour
Qualis vehicle by police and that there lives were in danger. The
incident is stated to have taken place in Sector 9, Vashi, Navi
Mumbai. He has stated that he was informed of the same, as
Vashi, Sector 9, was within their jurisdiction. He has stated that
he informed the same to C.R.O, PSI–Bhagat and that PSI–Bhagat
informed him to make an entry in the diary. PW94 has stated
that he made an entry and accordingly, informed the Vashi Police
Station. He has identified the entry at serial No.20 bearing his
initials at the end of the entry. He has stated that he informed
the Vashi Police Station accordingly after taking the said entry.
He has further stated that PI–Patil from Vashi Police Station called
the Control Room and informed that Aruna Anil Bheda had
th
lodged a report in Vashi Police Station on 11 November 2006 at
6:00 hrs, that her husband Anil Bheda left home at 10:00 hrs
stating that, he was going outside for refilling his mobile and did
S.Q. Pathan / N.S. Chitnis 333/867
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not return home. He has stated that a missing report was
registered at Vashi Police Station on the basis of the said
complaint and as per the said information, he made an entry in
the Station Diary. The entry of the message on phone by Mr.
Patil was reduced into writing by PW94 at 13:15 hrs. at serial
No.21. PW94 has identified the entries at serial Nos.20 and 21
as true and correct and the entry at serial No.20 was marked as
Exh.–702 and entry at serial No.21 was marked as Exh.–703.
Since the xerox copies were taken on record, the same were
marked as Exh.–702A and Exh.–703A respectively. The entries
at Exhibits 702 and 703 read thus :
| 1 | xqUgk uksan<br>ogh dz- o<br>dk;n;kps<br>dye<br>¼vko’;dR<br>;k fBdk.kh½<br>2 | XkqUg;k’kh lacaf/kr vlysY;k O;Drh o<br>ekyeRrk vkf.k xqUg;kph osG o tkxk<br>n’kZo.kkjk xqUg;kpk FkksMD;kr ri’khy<br>3 | |
|---|---|---|---|
| dzeka<br>d | osG | ||
| 20 | 11%4 | Ukksan | iks-fu- lksuo.ks CRO Bk.ks flVh iksYkhl |
S.Q. Pathan / N.S. Chitnis 334/867
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| 5 | feflax<br>ckcr | daVªksy :e ;kauh dGohys dh] v:.kk vfuy<br>HksMk ghus Bk.ks flVh iksyhl vk;qDr ;kaps ukaos<br>QWDl ikBfor vkgs- QWDl e/;s vfuy HksMk o<br>jke ukjk;.k fo’oukFk xqIrk ;k nks?kkauk<br>flYOgj jaxkps Dokyhl iksyhl xkMh e/;s<br>clowu ?ksowu xsys vkgsr R;kaps ftokyk /kksdk<br>vkgs- vls QWDl e/;s ueqn dsys vkgs- lnj<br>izdkj gk ok’kh ls&9 ;sFks ?kMysyk vly;kus<br>R;k ckcr [kk=h dj.ks lkBh R;kauh uoheaqcbZ<br>CRO yk dGohys ¼lnj gdhxr ok’kh iks-<br>LVs- yk CRO uoheaqcbZ ;kauh dGowu [kk=h<br>o pkSd’kh dj.ksl lkafxrys vkgs½- | |
|---|---|---|---|
| 21 | 13-<br>15 | Ukksan<br>ekxhy uksn<br>dz- 20<br>ckcr | Ikks-fu- ok’kh iks-LVs- Jh- ikVhy ;kauh dGohys<br>dh v:uk vfuy csMk ;kauh fnysys ekfgrhP;k<br>vuq"kaxkus pkSd’kh dsyh vlrk lnj ckbZ fgus<br>fn- 11-11-2006 jksth 18&40 ok- ok’kh iks-<br>LVs-e/;s ¼rhpk uojk vfuy csMk gk 10&30<br>ok- eksckbZy Qksuph fjQhy d:u ;srks vls<br>lkaxqu ?kjkrqu fu?kqu xsyk vkgs- rks vn~;ki<br>ijr ?kjh vkyk ukgh½- R;kckcr ok’kh iks-LVs<br>dMs euq"; feflax jth- ua- 51@06 izek.ks<br>nk[ky vkgs o R;kpk rikl HC/579/vkacoys<br>ok’kh iks-LVs gs djhr vkgsr- ¼rlsp flYoj<br>jaxkps Dokyhl iksyhl xkMh ckcr o lnj<br>xkMhrwu usysY;k blekackcr dkgh ,d ekfgrh<br>vxj rikl ykxr ukgh½- |
English translation of the above extracts from the
S.Q. Pathan / N.S. Chitnis 335/867
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Station Diary i.e. Exh. 702 and 703, read thus :
| 1 | Crime<br>Register<br>No. and<br>Sections (if<br>necessary)<br>2 | |
|---|---|---|
| No. | Time | |
| 20<br>21 | 11-45<br>13-15 | Regarding<br>Entry of<br>Missing<br>Portion<br>Marked “A”<br>Entry in<br>respect of<br>Previous<br>Entry<br>No.20<br>Portion |
Particulars in brief about the persons and
property involved in the offence
and showing the time and place of
offence.
P. I. Sonavane, C.R.O., Thane City
Police Control Room informed that
Aruna Anil Bheda has sent a Fax in the
name of Commissioner of Police,
Thane city and in the said Fax, it has
been mentioned that Anil Bheda and
Ram Narayan Vishwanath Gupta have
been taken away by making them sit in
the silver coloured ‘Qualis’ police van
and that their life is in danger. As this
incident had occurred at Sector – 9,
Vashi, he informed Control Room,
Vashi to ascertain the said facts.
[Therefore, instructions have been
given by Vashi Police Station to the
C.R.O., to ascertain the said facts and
to make inquiry in respect thereof.]
Thereupon, Shri Patil, the Police
Inspector, Vashi Police Station has
informed that on making inquiry in
connection with the information given
by Aruna Anil Bheda, it is found that on
the date 11.11.2006 at 18-40 hrs, the
| “B | ”““ | “BBA”” |
|---|
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| (Signature<br>Illegible)<br>Police<br>Inspector,<br>Control<br>Room,<br>Navi Mumbai. | Marked “A”<br>Portion “B” |
|---|
said lady had given intimation to Vashi
Police station (that at 10-30 hrs, her
husband Anil Bheda had left the home
by saying that he would refill (recharge)
the mobile phone (number) and that he
had not yet returned at home). The
entry in respect thereof has been made
in Adults Missing Register vide entry
No. 51/06 and that
H.C./579/Ambavane, Vashi Police
Station is carrying out investigation
thereof. [Moreover, no information is
received or nothing is investigated about
the silver coloured ‘Qualis’ police
vehicle and about the persons taken
away by the said vehicle.]
101.1 Although the said witness was cross-examined,
there is nothing elicited in his cross-examination to discredit his
testimony with respect to the entry made by him in the Station
Diary.
DW2-Dagdu Patil :
102 Although A7 examined DW2 as a defence witness, in
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fact, the said witness supports the prosecution case.
102.1 DW2-Dagdu Patil was posted as a Police Inspector
Crime in Vashi Police Station, in the year 2006. It has come in the
th
evidence of DW2 that on 11 November 2006 at 21:00 hrs., he
was informed that a message was received from the Control
th
Room, Navi Mumbai, stating that, on the same day i.e 11
November 2006, Anil Bheda and Ramnarayan Gupta were taken
in a Qualis vehicle by plain clothes policemen. It was also stated
that one address alongwith name was mentioned as Aruna Bheda,
Diamond Apartment, Sector No. 29, Vashi, should be checked.
The Control Room passed the message at 17:45 hrs (Exh.974).
102.2 According to DW2, a report was made to him
after the missing report was entered into the Station Diary. DW2
has deposed that the SHO had also told him that one Aruna
Bheda had come to Vashi Police Station at 18.40 hrs and had
given her full name and address; that she had disclosed that at
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about 10.30 hrs, her husband Anil Bheda went for refilling his
mobile and did not return; that Anil Bheda had told her that
Ramnarayan Gupta was to meet him and after which, he would
return home; that as Anil Bheda did not return, Aruna Bheda
contacted her husband from a PCO, however, she could not
contact him, as the mobile of Anil Bheda was not reachable; that
she waited for Anil Bheda and then came to the police Station to
file a missing complaint; that at that time, the SHO informed
Aruna Bheda that a fax message was received from the Control
Room, Navi Mumbai; that the SHO asked Aruna Bheda as to
whether the said fax in her name was sent by her; to which Aruna
Bheda replied that she did not send the fax nor did she make any
phone call.
th
102.3 DW2 has further deposed that on 12 November
2006 at 18:00 hrs., Aruna Bheda alongwith Anil Bheda met him;
that initially she alongwith her husband reported to the SHO-ASI
Mr.Patil that her husband had returned, pursuant to which, she
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came to the Police Station alongwith her husband to report of his
return. DW2 further stated that ASI Mr.Patil recorded the
th
statement of Aruna Bheda and Anil Bheda; and that on 12
November 2006, they made a secret inquiry as regards the
missing complaint, however, no information could be gathered
and accordingly, an entry to that effect was made in the Station
Diary.
102.4 DW2 has further deposed that he made inquiry with
Anil Bheda and that Anil Bheda made some disclosure to him. In
view of the demise of Anil Bheda, the alleged disclosure made by
Anil Bheda to DW2, would clearly be inadmissible and hence, is
not reproduced nor considered.
103 Thus, the evidence of DW2, as has come on record,
does not in anyway impeach the credibility of PW40 or any other
witness. Infact, it supports the prosecution case with respect to
receipt of a fax message from Navi Mumbai Control Room, with
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respect to abduction of Ramnarayan and Anil Bheda. There is a
station diary entry to that effect.
104 Infact, we do not find any material in DW2’s
evidence, which in any way, dislodges the prosecution case of
th
abduction of Ramnarayan and witness Anil Bheda on 11
November 2006.
PW46-Lakkaraju Narsimha Sai Rao:
105 PW46 has filed his affidavit which was taken on
record and marked as Exh.–352. In the said affidavit marked as
Exh.–352, PW46 has stated that he was working as an ACP, Main
th
Control Room, Mumbai, since 9 January 2012; that the Spl. P.P
th
had issued a notice to him on 26 January 2012 and called upon
th
him to produce the original charge book containing entries of 11
November 2006; that all the records of the Main Control Room
were searched thoroughly, however, the charge book was not
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traced and on making further inquiries, it was found that the
th
charge book was destroyed on 12 March 2010 and that a station
th
diary to that effect was made vide S.D.E. No.19/2010 dated 12
March 2010. A true copy of the said station diary entry was
annexed to the affidavit. Hence, the witness was unable to
produce the original charge book. PW46, however, produced the
original station diary entry maintained in due course and placed a
xerox copy of the same on record, which was marked after
comparing with the original, as Exh.-353A. The affidavit was
not objected to and hence marked as Exh.–352. What was
objected to was the admissibility of the station diary entry
however, subject to objection, the same was taken on record.
th
The station diary entry is dated 12 March 2010 with respect to
destruction of the said charge book. The said station diary entry
was made in due course of their official duty and hence, there is
th
no reason to disbelieve the said entry made on 12 March 2010
and brought on record through PW46.
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105.1 It is evident from the evidence of the aforesaid
witnesses, oral and documentary, that the prosecution has proved
by legal, cogent and admissible evidence, that Ramnarayan Gupta
th
(deceased) and Anil Bheda were abducted on 11 November
2006 at around 12:30 hrs from Sector 9A, Vashi in a Qualis by
plain cloth police and others i.e. 5–6 persons. It is the
prosecution case that from Vashi, Ramnarayan and Anil Bheda
were taken to Bhandup and from there to D.N. Nagar Police
Station. It is the prosecution case that a police personnel i.e. A7
and other private persons i.e. A4, A8, A10, A12 and A21,
abducted the two from Vashi and they were later joined by other
police personnel i.e. A2 and A3 and a private person i.e. A6, at
Bhandup complex. The CDRs of some of the said accused show
th th
their presence at Vashi on 10 and 11 November 2006, i.e. prior
to the abduction, at the time of abduction and post the abduction.
The evidence vis-a-vis CDRs will be dealt with in detail when we
deal with the circumstance of ‘CDRs’.
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106 Although, learned counsel for the appellants-accused
made much ado about the faxes being sent in the name of Aruna
Bheda and not in the name of PW1 and that the said telegrams
were fabricated by PW1 to take revenge against the police, we
find no merit in the same, considering the overwhelming evidence
that has come on record, to the contrary. We may note, that PW1
and PW2 have not denied sending the telegrams/faxes in the
name of Aruna Bheda. PW1 has offered an explanation, why the
said telegrams were not sent in his name i.e. he was embarrassed
to send the telegrams/faxes in his name, he being an advocate.
No doubt, Aruna Bheda (PW40) had denied sending
telegrams/faxes, however, the fact remains, that PW1 and PW2
have admitted having sent the said faxes/telegrams albeit in
PW40’s name. It is evident from PW40’s evidence that she did
not know how to send fax nor did she want any hassles and that
she was scared. PW40’s evidence appears natural after learning
that her husband, Anil Bheda and Ramnarayan were picked up by
police and we find no reason to disbelieve her testimony.
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107 That the said telegrams/faxes were infact sent to the
th
authorities on 11 November 2006, has been duly proved
through witnesses during the period from 4:00 hrs to 6:28 hrs;
that the telegrams/faxes contained information as received from
PW38, who in turn had received the said information from Nilesh
with respect to abduction of Ramnarayan Gupta and Anil Bheda
at 12:30 hrs. from Sector 9, Vashi, in a Qualis, by plain cloth
policemen; and most importantly, were sent before Ramnarayan
th
was killed in an alleged encounter at 8:30 hrs on 11 November
2006 itself, ruling out any possibility of any fabrication of
evidence. The telegrams and faxes sent clearly spelt out the
apprehension that there was a possibility of Ramnarayan and Anil
Bheda being killed in a fake encounter, after they were picked up
at Vashi.
108 It is pertinent to note, that Anil Bheda, a star witness
for the prosecution, who had disclosed to the SIT, how he and
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Ramnarayan were abducted, what happened thereafter, and who
were the people involved, was found dead three days before his
testimony could be recorded. (Anil Bheda had also identified the
accused persons who had abducted him and Ramnarayan in the
TIP). Thus, in the facts, in view of Anil Bheda’s death, the
disclosure made by Nilesh to PW38 and by Anil Bheda to PW40-
Aruna Bheda would have great significance and importance.
109 Mr. Chavan, learned Spl.P.P. submitted that the
disclosure made by Nilesh to PW38 would be admissible under
Section 6 of Evidence Act, inasmuch as, Section 6 carves out an
exception to hearsay evidence. Thus, according to Mr. Chavan,
the disclosure made by Nilesh to PW38 would squarely fall under
Illustration (a) to Section 6, and thus admissible in law. He
submitted that the Trial Court has also rightly accepted the
disclosure made by Nilesh to PW38, as being admissible under
Section 6 of the Evidence Act.
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110 Although, the learned counsel for the appellants
seriously contested the admissibility of what was disclosed by
Nilesh to PW38, being hearsay, we find that the said disclosure
made by Nilesh to PW38 would squarely be covered under
Section 6 of the Evidence Act i.e. under the principle of res
gestae. The learned Trial Judge has also rightly rejected the said
objection so raised by the learned counsel for the appellants that
the said disclosure made by Nilesh to PW38 would be hearsay
and as such, the trial Court has accepted the said disclosure, as
being admissible under Section 6 of the Evidence Act.
111 Considering the objection raised by the learned
counsel for the appellants with respect to Nilesh’s disclosure to
PW38, being hearsay evidence and thus, inadmissible, we
propose to examine the law/rulings with respect to the same and
whether there is any merit in the said objection.
112 Relevant part of Section 6 of the Evidence Act with
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which we are concerned, reads thus:
“6. Relevancy of facts forming part of same transaction. —
Facts which, though not in issue, are so connected with a
fact in issue as to form part of the same transaction, are
relevant, whether they occurred at the same time and place
or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the bystanders at
the beating, or so shortly before or after is as to form part
of the transaction, is a relevant fact.
(b) ....... .......
(c) ....... .......
(d) ....... .......”
A bare perusal of this section makes it clear that the
test to determine admissibility of a statement, under the rule of
“res gestae” is postulated in the usage of the words, “are so
connected with a fact in issue as to form a part of the same
transaction” . Section 6 chisels out an exception to the general
rule, which makes hearsay evidence inadmissible.
113 The scope/principle of ` res gestae ’ was elucidated by
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the Apex Court in Gentela Vijayavardhan Rao and Another v.
14
State of A.P . Para 15 of the said judgment is reproduced herein-
under:
“15. The principle of law embodied in Section 6 of the
Evidence Act is usually known as the rule of res gestae
recognised in English law. The essence of the doctrine is
that a fact which, though not in issue, is so connected
with the fact in issue “as to form part of the same
transaction” becomes relevant by itself. This rule is,
roughly speaking, an exception to the general rule that
hearsay evidence is not admissible. The rationale in
making certain statement or fact admissible under
Section 6 of the Evidence Act is on account of the
spontaneity and immediacy of such statement or fact in
relation to the fact in issue. But it is necessary that such
fact or statement must be a part of the same transaction.
In other words, such statement must have been made
contemporaneous with the acts which constitute the
offence or at least immediately thereafter. But if there
was an interval, however slight it may be, which was
sufficient enough for fabrication then the statement is
not part of res gestae. In R. v. Lillyman [(1896) 2 QB
167 : (1895-99) All ER Rep 586] a statement made by a
raped woman after the ravishment was held to be not
part of the res gestae on account of some interval of
time lapsing between the act of rape and the making of
the statement. Privy Council while considering the
extent up to which this rule of res gestae can be allowed
as an exemption to the inhibition against hearsay
evidence, has observed in Teper v. R. [(1952) 2 All ER
14 AIR 1996 SC 2791
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447] thus:
“The rule that in a criminal trial hearsay evidence is
admissible if it forms part of the res gestae is based on
the propositions that the human utterance is both a fact
and a means of communication and that human action
may be so interwoven with words that the significance
of the action cannot be understood without the
correlative words and the dissociation of the words
from the action would impede the discovery of the
truth. It is essential that the words sought to be proved
by hearsay should be, if not absolutely
contemporaneous with the action or event, at least so
clearly associated with it that they are part of the thing
being done, and so an item or part of the real evidence
and not merely a reported statement.”
The correct legal position stated above needs no further
elucidation.”
(emphasis supplied)
114 The Apex Court in State of Maharashtra v. Kamal
15
Ahmed Mohammed Vakil Ansari & Ors. , further discussed the
words “part of the same transaction” as postulated in Section 6,
and accordingly has, in para 41, held as under:
“41. ....... In our considered view, the test to determine admissibility
under the rule of “res gestae” is embodied in words “are so connected
with a fact in issue as to form a part of the same transaction”. It is
therefore, that for describing the concept of “res gestae”, one would
15 (2013) 12 SCC 17
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need to examine whether the fact is such as can be described by use
of words/phrases such as, “contemporaneously arising out of the
occurrence”, “actions having a live link to the fact”, “acts perceived as
a part of the occurrence”, exclamations (of hurt, seeking help, of
disbelief, of cautioning, and the like) arising out of the fact,
spontaneous reactions to a fact, and the like. It is difficult for us to
describe Illustration (a) under Section 6 of the Evidence Act, specially
in conjunction with the words “are so connected with a fact in issue as
to form a part of the same transaction”, in a manner differently from
the approach characterised above. (emphasis supplied)
th
115 Sarkar on Evidence (15 Edn.) has summarised the
law to ascertain the applicability of Section 6 of the Evidence Act
thus:
“1. The declarations (oral or written) must relate to the
act which is in issue or relevant thereto; they are not
admissible merely because they accompany an act.
Moreover, the declarations must relate to and
explain the fact they accompany, and not
independent facts previous or subsequent thereto
unless such facts are part of a transaction which is
continuous.
2. The declarations must be substantially
contemporaneous with the fact and not merely the
narrative of a past.
3. The declaration and the act may be by the same
person, or they may be by different persons, e.g, the
declarations of the victim, assailant and bystanders.
In conspiracy and riot, the declarations of all
concerned in the common object are admissible.
4. Though admissible to explain or corroborate, or to
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understand the significance of the act, declarations
are not evidence of the truth of the matters stated.”
116 Considering the aforesaid legal position, we now
proceed to consider the applicability of Section 6, to the facts in
question. It has come in the evidence of Dheeraj Mehta (PW38)
that at about 12:15 hrs, Anil Bheda and his friend Pandeyji had
come to his shop and were waiting outside, as there was no place
to sit inside the shop (according to the prosecution, Ramnarayan
and Anil Bheda were abducted at around 12:35 to 12.38 hrs);
that at about 12.40 hrs., one Nilesh had come to his shop and
informed him that his friend and his friend’s friend were picked
up by 5-6 persons in civil dress, in a Qualis vehicle . Admittedly,
Nilesh’s statement was not recorded by the police, and as such,
what is the effect of the disclosure made by Nilesh to PW38, is
the question.
117 Section 6 of the Evidence Act is squarely attracted to
the facts in the present case for the following reasons:
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(i) Ramnarayan made last two calls from his mobile at
12.31 and 12.33 hrs. from Sector 9A, Vashi, Navi Mumbai; (ii)
After 12.35 hrs. both the mobiles i.e. used by Anil Bheda as well
as Ramnarayan were switched off; and (iii) As soon as Nilesh
informed PW38 at 12.40 hrs, PW38 informed PW57 and calls
were exchanged between PW38, PW57, PW3 and PW1 followed
by faxes and telegrams to authorities, reiterating the disclosure
made by Nilesh to PW38. It is pertinent to note, that at 12.39
hrs, A7 called OA1 (all corroborated by CDRs i.e. location of A7
is at Sector 9, Vashi and OA1 at D.N.Nagar Police Station) is a
circumstance which shows A7’s presence at the spot from where
Anil Bheda and Ramnarayan were abducted and that A7 was at
Vashi, outside his Commissionerate area (A7 was deputed to D.N.
Nagar Police Station, Andheri, which is a different
Commissionerate).
118 It is pertinent to note that Nilesh came to Dheeraj
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Mehta’s (PW38) shop at 12:40 hrs, immediately, soon after
Ramnarayan and Anil Bheda’s abduction at around 12:35 hrs –
12:38 hrs, and informed him of the abduction instantaneously,
leaving no room whatsoever for fabrication or concoction of
evidence. The disclosure made by Nilesh to PW38 was
contemporaneous and utterances spontaneous.
119 The immediacy with which Nilesh went to PW38, and
the spontaneity shown by his remark that “your friend and your
friend’s friend have been picked up by 5-6 persons in a civil dress,
in a Qualis vehicle”, are all circumstances so intertwined with
each other, by proximity of time and space, that the statement of
Nilesh, contemporaneously made alongwith the act of abduction,
forms “fact in issue” and thus, Nilesh’s act of informing the same
to PW38, becomes a part of the same transaction and thus, the
disclosure made by Nilesh to PW38 will not be hit by hearsay
evidence and as such, is clearly admissible in law under Section 6
of the Evidence Act.
S.Q. Pathan / N.S. Chitnis 354/867
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120 The disclosure made by Nilesh to PW38 would
squarely fall within the meaning of a bystander as covered under
Illustration (a) of Section 6. In the present case, Nilesh being the
bystander to the “fact in issue” will form part of the transaction
and will squarely fall under Illustration (a) as covered in Section
6 of the Evidence Act.
121 Suffice to say, that what was disclosed by Nilesh
would squarely be covered under Illustration (a) of Section 6 of
the Evidence Act and as such the said disclosure made by Nilesh
to PW38 will be admissible, inasmuch as, it was made absolutely
spontaneously and contemporaneously; with no opportunity for
fabrication and was part of the same transaction.
122 As far as the disclosure made by Anil Bheda to Aruna
th
Bheda on 12 November 2006 within the precincts of the Vashi
Police Station is concerned, the same would be admissible or not
under Section 6 of the Evidence Act, also arises for consideration
S.Q. Pathan / N.S. Chitnis 355/867
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before us. According to the learned Spl.PP, and Dr.Chaudhry the
same would be admissible, whereas, according to the learned
counsel for the appellants/accused, the same being hearsay (in
view of Anil Bheda’s demise) is inadmissible and as such rightly
rejected by the trial Court.
123 We may now analyse the facts and record our
conclusion with respect to the testimony of PW 40. At this stage,
it is apposite to reproduce the evidence of PW 40, particularly in
Para 16, as under:
“16. On 12.11.2006 outside Vashi Police Station my
husband disclosed what had happened on 11.11.2006. At
that time my husband informed me that Pradeep Sharma's
men had taken him and his friend Pandeji in a Qualis
Vehicle from Vashi Sector 9. He stated that they were
taken to Andheri DN. Nagar police station. He stated that
he was produced before Shri. Sharma. He stated that on
that night Pandeji was killed in an encounter. He further
stated that police officer by name A.T. Patil mediated on
his behalf and hence he was released. One Qualis vehicle
was standing at a distance and he told me that we have to
go in said vehicle. In the said vehicle there were two
police in plain clothes by named Desai and Rattu.”
S.Q. Pathan / N.S. Chitnis 356/867
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124 PW40’s evidence reveals that Anil Bheda was brought
to Vashi Police Station by police; that on withdrawal of her
missing complaint, her and Anil Bheda’s statements were
recorded by the police. On stepping out of the said Police Station
(but within the precincts of the Police Station), Anil Bheda took
the opportunity to disclose to Aruna Bheda what had happened
i.e. of his and Ramnarayan’s abduction by OA1’s men and they
being taken to D.N.Nagar Police Station and produced before
OA1. Anil Bheda also disclosed that since Anant Patil (PW104)
mediated, his life was safe. According to PW40, Anil showed a
Qualis vehicle and told her that they had to go home in the said
vehicle, pursuant to which they sat in the vehicle. A2 and A3
were the police personnel in the Qualis vehicle. (We have while
dealing with the circumstance of confinement, held that Anil
Bheda was kept in wrongful confinement from the time he was
th th
abducted i.e. 11 November 2006 till 12 November 2006.)
125 Thus, keeping in mind PW40’s evidence with respect
S.Q. Pathan / N.S. Chitnis 357/867
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to disclosure made by Anil Bheda to PW40, we find that there
was no opportunity for Anil Bheda to fabricate the same,
considering that he was in the custody of the police i.e. A2 and
A3 and had only a moment's reprieve, when he could talk to his
wife i.e. Aruna Bheda (PW 40), when he had the first opportunity
to meet her, before getting into the Qualis vehicle with two police
personnel in plain clothes, who had been waiting at a distance.
The same proves the live link between abduction of Anil Bheda
and Ramnarayan by the police officials, was never snapped, as
Anil Bheda continued to be in their custody even when he was
brought to Vashi Police Station, abduction being a continuing
offence.
126 The contemporaneous and spontaneous utterances by
Anil Bheda to PW40 refer to `actions having a live link to the
fact’, `acts as a part of the occurrence’ and exclamations (of hurt,
seeking help, of disbelief, of cautioning and the like) arising out
of the facts i.e. spontaneous reactions to the fact, and the like are
S.Q. Pathan / N.S. Chitnis 358/867
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relevant. The same has been discussed in detail in Kamal Vakil
Ansari (Supra), as noted herein-above.
127 The evidence also shows that the disclosure forms
part of the same transaction, since the said declaration is
substantially contemporaneous with the fact and not merely a
narrative of a past, as canvassed in Sukhar v. State of U.P.16.
Hence, Anil Bheda’s disclosure to PW 40 about Pradeep Sharma’s
men abducting him and Ramnarayan from Vashi, Sector 9, in a
Qualis vehicle; taking them to D.N. Nagar Police Station,
Andheri and producing them before OA1, will form a part of the
same transaction, since the live link between his abduction and
the act of him informing the same to his wife Aruna Bheda (PW
40), was never snapped as he was in continuous detention of the
police officers i.e. A2 and A3. The disclosure was made
contemporaneously, without any opportunity to allow any
deliberate fabrication, inasmuch as, forming the part of the same
transaction.
S.Q. Pathan / N.S. Chitnis 359/867
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128 It is apposite to reproduce the aforesaid rule as it is
stated in Wighmore’s Evidence Act, which reads thus:
“Under the present exception [to hearsay] and
utterance is by hypothesis, offered as an assertion to
evidence the fact asserted (for example that a car brake
was set or not set), and the only condition is that it shall
have been made spontaneously, i.e as the natural effusion
of a state of excitement. Now this state of excitement
may well continue to exist after the exciting fact has
ended. The declaration, therefore, may be admissible
even though subsequent to the occurrence, provided it is
near enough in time to allow the assumption that the
exciting influence continued.”
(emphasis supplied)
129 Applying the ratio as discussed herein-above, we have
no hesitation in coming to the conclusion that the disclosure
made by Nilesh to PW38 and by Anil Bheda to Aruna Bheda
(PW40) would be admissible by virtue of Section 6 of the
Evidence Act and as such, would squarely fall under the exception
carved out therein.
130 Thus, from the aforesaid evidence as set out in detail,
we find that the prosecution has proved the circumstance of
S.Q. Pathan / N.S. Chitnis 360/867
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abduction of Ramnarayan and Anil Bheda by credible, cogent and
legally admissible evidence i.e. both oral evidence, as well as
documentary evidence.
131 We now propose to deal with the next circumstance
relied upon by the prosecution i.e. Encounter/Custodial
death/Murder of Ramnarayan.
iii. ENCOUNTER/CUSTODIAL DEATH/MURDER
132 Learned counsel for some of the appellants/accused,
in particular, A2, A3, A9, A15, submit that it was a genuine
encounter, whereas some of the appellants/accused have feigned
th
ignorance of what happened at Nana Nani Park on 11
November 2006 and whereas, some accept the correctness of
C.R. No.302/2006 in their 313 statements, however, have
pleaded before us that they were not part of the encounter team.
S.Q. Pathan / N.S. Chitnis 361/867
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133 According to the prosecution, once it is proved that
Ramnarayan Gupta (deceased) was abducted, then the onus
would fall on the appellants (accused) to show that the deceased
escaped from their custody, after which the incident of encounter
took place, and if not, the circumstances under which the
deceased was shot, being a case of custodial death.
134 In order to prove that Ramnarayan was murdered in a
fake encounter by the appellants/accused, the prosecution
essentially relied on the evidence of PW1–Ramprasad Gupta,
PW2-Ganesh Iyer, PW3-Shyamsunder Gupta, PW7-Vilas
Kandalgaonkar, PW39-Mohandas Sankhe, PW83-Umesh
Revandkar, PW77-Mahendra Tatkare, PW63-Arun Awate, PW61-
Vinaykumar Chaube, PW78-Bipin Bihari, PW87-Ajendrasingh
Thakur.
135 Mr. Chavan, learned Spl.P.P submitted that the fact,
that the encounter was a fake and not a genuine encounter, is
S.Q. Pathan / N.S. Chitnis 362/867
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evident not only from the evidence of the aforesaid witnesses, but
even from the documents on record i.e. false documents/station
diary entries were prepared by the appellants–accused to show
that it was a genuine encounter. He submitted that even the spot
panchnama, is a false document created at the behest of A9 to
support the fake encounter. In connection with the same, the
learned Spl.PP relied on the deposition of PW73-Vilas
Kandalgaonkar, who was the author of the spot panchnama. He
submitted that the evidence on record would also show
falsification of records to cover up the fake encounter. He
submitted that even a revolver and railway tickets were planted
on the deceased to show that it was a genuine encounter.
136 The witnesses relied upon by the prosecution,in
support of the said circumstance i.e. murder/custodial death of
Ramnarayan/fake encounter are as under.
a. On false FIR and Fabrication of Records/Evidence
S.Q. Pathan / N.S. Chitnis 363/867
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PW39 - Mohandas Narayan Sankhe
137 PW39- Mohandas Sankhe was working as a PI at the
Versova Police Station at the relevant time; he has stated that at
about 20:50 hrs., A9 of D.N. Nagar Police Station came to the
Versova Police Station and disclosed that he alongwith his team
had gone to nab a wanted criminal by the name Ramnarayan
Gupta @ Lakhanbhaiya at Nana Nani Park; that the said person
i.e. Ramnarayan had fired at them from his revolver, pursuant to
which, the police fired at him with their weapons; and that in the
said incident, Ramnarayan was injured and was taken to the
hospital. According to PW39, he recorded the FIR at the behest
of PI Suryawanshi (A9), which was registered vide C.R.
No.302/2006; that the said FIR bears his signature as well as the
signature of A9; and that the FIR (Exh.–278) was written as per
the say of A9. PW39 has further stated that while recording the
complaint, A9 received a call from Sarvankar (A22), who
informed A9 that the injured was declared dead before admission.
S.Q. Pathan / N.S. Chitnis 364/867
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He has stated that pursuant thereto, he directed PSI Jadhav who
had left for the spot to go to Cooper Hospital to carry out the
inquest panchnama. He has stated that thereafter, A9 in the
presence of two panchas produced two bullet shells, which were
seized and accordingly, a panchnama (Exh.–279) was drawn
between 22:05 to 22:35 hrs. PW39 has further stated that
thereafter, he alongwith A9 and two constables went to the spot,
called two panchas and prepared a spot panchnama of the
incident. He has stated that A9 showed the spot to him and to
the panchas and that the said spot was near Nana Nani Park on
the Link Road, opposite Magnum Opus building. He has stated
that A9 introduced two persons who were police personnel in
civil dress, who were deputed to protect the place of incident;
that he alongwith panchas, examined the place of incident and
saw an electric pole near the place of incident, bearing number
KBU 13-061; that there was a pool of blood near the said pole;
that one revolver was lying near the pool of blood; that between
the pool of blood and the gate of Magnum Opus building, one
S.Q. Pathan / N.S. Chitnis 365/867
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empty bullet shell was lying; that the photographs of the spot
were taken with the help of a private photographer; that
measurements of the place of incident and the position of the
pool of blood and other places was taken; that they checked the
cylinder of the revolver which was lying (allegedly belonging to
Ramnarayan Gupta) and found two cartridges and two empty
shells in the cylinder; that one finger print expert by the name
Sawant examined the revolver for finger prints, but did not find
any fingerprints and accordingly, gave his report; that he seized
the said revolver; that the two live bullets in the said revolver had
hammer mark on it; that the said bullets had mark .32 KF S &
WL; that he seized these bullets and packed them separately and
sealed the packet; that the empties also had hammer mark on it;
that the said empties also had mark .32 KF S & WL; that he
seized the same and packed and sealed the said empties in
different packets; that he seized the empty shell which was lying
at the place of incident, which had a mark KF 94 9 MM 22; that
he seized the same, packed and sealed the said empty shell
S.Q. Pathan / N.S. Chitnis 366/867
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separately; that he collected the blood sample from the pool of
blood lying and also collected blood stained soil from the said
place and plain soil from the spot and put the same in different
bottles and each of these bottles were packed and sealed
separately. (It is the prosecution case that no blood was collected
in ‘bottles’, but was collected in plastic bags, and for this,
prosecution relied on the evidence of PW83-Umesh Revandkar,
PW77–Mahendra Tatkare and PW102-Sahil Joshi, reporter from
Aaj Tak, who took a video of the spot. The said videography was
produced in evidence. The said evidence will be dealt with a
little later. He has further stated that the panchnama started on
th th
11 November 2006 at 23:00 hrs and was over on 12
November 2006 at 01:35 hrs. He has stated that the panchnama
was read over to the panchas and signatures of the panchas were
taken. He has identified the panchnama which is marked as
Exh.–283. The said witness has identified the revolver (Article
49); two empty shells which had marking KF .32 S & WL
(marked as Article 51 colly) (the first bullet bears marking KF S &
S.Q. Pathan / N.S. Chitnis 367/867
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WL .32 and the second bullet bears marking RP S & WL .32).
Both the bullets, having indent on the rear, were marked as
Article 54 (colly) and the empty shell was marked as Article 57.
PW39 has identified the two police personnel who were in civil
dress as PSI Patade (A18) and API Palande (A15). PW39 was
shown the report of the finger print expert. The same was
marked by consent, as Exh.–284. According to PW39, API–
Sarvankar (A22) and API Palande (A15), later came to Versova
Police Station, pursuant to which he called two panchas; that the
said persons produced empty shells from their revolvers from
which they had fired; that API Sarvankar (A22) pulled out the
empty shell from his revolver; that the panchas examined the
shell and made notings about the same; that API Palande (A15)
also pulled out an empty shell; that on examination of the said
shells, notings were made; that the shell of API Sarvankar (A22)
had mark KF 98 380 2 and the shell of API Palande (A15) had
mark KF 01 380 2. He has stated that accordingly he prepared
the panchnama (Exh.–286) and the panchas put their signatures
S.Q. Pathan / N.S. Chitnis 368/867
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on the same. He has identified the shells which were marked as
Articles 60 and 63. He has stated that the said panchnama was
th
carried out on 12 November 2006 from 2:40 hrs. to 3:15 hrs.
and that accordingly an entry was made in the Station Diary at
serial No.2 in his handwriting (The said entry is at Exh.–287).
137.1 According to PW39, he thereafter recorded the
statements of the members of the raiding team and has identified
the said persons, whose statements were recorded. He has further
stated that he also recorded the statements of Ramrajpal Singh
and Manohar Kulpe (DW 1); that he forwarded the body to J.J.
PM Centre from Cooper Hospital alongwith the ADR form. He
has identified the signature of PSI Jadhav on the ADR form. The
said ADR form was exhibited by consent as Exh.–288 and the
request form of PM was marked as Exh.–289. He has further in
his examination stated that the mark on the bullet should read as
KF .32 S & WL. Similarly, marks on other shells should read as
KF and then bore. He has further stated that he forwarded the
S.Q. Pathan / N.S. Chitnis 369/867
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FIR and other documents to the learned Metropolitan Magistrate
th th
on 13 November 2006 and carried on the investigation till 15
November 2006 and thereafter, as per the directions of his
superiors, he handed over the investigation to Dilip Patil of
Oshiwara Police Station. He has stated that thereafter he was
rd
called by SIT on 23 December 2009 when his statement was
st
recorded under Section 161 Cr.PC and again on 21 April 2010
when his statement was recorded by the learned Magistrate under
Section 164 Cr.PC.
137.2 According to PW39 the name of Ramrajpal Singh
was informed by one of the members of the team and that the
name, address and telephone number of Kulpe was given to him
by API Palande (A15) and that his statement was recorded by SIT
on that day.
137.3 PW39 was extensively cross-examined by the learned
counsel for OA1. In the cross-examination, PW39 has stated that
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during the course of his investigation, he did not come across any
evidence to doubt the genuineness and correctness of the
information received during investigation of CR No.302/2006;
that he confirmed that the site of encounter was Nana Nani Park,
Versova, when he visited the said park for drawing panchnama;
that he again re-confirmed the spot from the staff of the mobile
patrol van, who had taken the injured from Nana Nani Park to
Cooper Hospital. He has further admitted that he learnt from
his investigation that a Mobile Patrol Van on receiving a message
at 20:18 hrs., had reached Nana Nani Park at 20:28 hrs.; and
that the deceased was taken from Nana Nani Park at around
20:36 hrs. and reached Cooper Hospital at 20:57 hrs. PW39 has
th
also admitted that on 11 November 2006, PW1 had not
approached him at Versova Police Station between 20:50 hrs. to
22:35 hrs, nor any constable from Versova Police Station had
approached him, inquiring whether Ramprasad Gupta (PW1) had
come to the Police Station regarding the said case. He has stated
that for drawing the panchnama, he had gone from Versova
S.Q. Pathan / N.S. Chitnis 371/867
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Police Station to Nana Nani Park at 22:45 hrs. and the entire
process of drawing panchnama and seizure at the place of
incident took place till 1:35 hrs He has stated that he did not see
PW1 or any other person at the spot of the incident nor did he
see PW1 or any of his representative taking a video clipping or
photographs, at the relevant time. It has been further brought in
the cross-examination of PW39 that the investigation revealed
that A9 had called his team members to his chamber and
introduced A13, A15, A18 and A22 and other staff of D.N. Nagar
Police Station; that A9 had given the description of the person
who was to come to Nana Nani Park to the team members; that
A9 and others prepared a plan with respect to the operation to be
carried out; that the team left the police station armed with
service weapons, at 6:55 hrs; that it was revealed during
investigation that A9 had made two teams; that at about 8:10
hrs, one rickshaw came near the electric pole from Versova and
stopped and one person got down from the said auto rickshaw;
that the said person was loitering near the place; that A9’s
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informant, pointed out to the said person, being associate of
Chhota Rajan gang; that A9 signaled to his teams about the
arrival of the said person and that it was decided to accost the
said person; that the said person sensed police presence and
pulled out a revolver from his waist and pointed it towards A9;
that A9 warned the said person that they were police and that he
should surrender and not fire; that the said person did not heed
to the caution and fired in the direction of A9; that the said
person also fired in the direction of the second team; that A22
called out to tell the said person, not to fire and that they were
police; that the investigation also revealed that as two shots were
fired by the said person, the police apprehending danger to their
lives and to the public nearby, fired at the said person i.e. A9 fired
two rounds at the said person; A15 fired one round and A22
fired 1 round.
137.4 PW39 has further admitted that it was revealed
during investigation that the deceased was injured and had fallen
S.Q. Pathan / N.S. Chitnis 373/867
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down with a weapon in his hand; that the team members had
gone near the said person and found him injured and bleeding
and accordingly, called a Mobile Patrol Van; that a request was
made to the people to carry the said person to the hospital,
however, the request was turned down; that the two persons who
were approached for help, were Ramrajpal Singh and Manohar
Kulpe (DW2) and since the said two persons had witnessed the
incident, the officers had noted down their names, addresses and
contact numbers. According to PW39, after returning from the
spot and after seizing the empties from A9, it transpired that A9
had fired in self defence and that A15 and A22 had also fired in
self defence.
137.5 PW39 has further in his cross, admitted that all the
properties of the police station are required to be entered in the
Muddemal register, however, he does not remember if entries
regarding the property received from J.J. Hospital was made in
the Muddemal Register. He has stated that if the entries are
S.Q. Pathan / N.S. Chitnis 374/867
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made, it would be made in the Muddemal register of the Versova
Police Station. The said witness after checking the registers of the
Versova Police Station has stated that such entry is not available in
the station diary register. He has admitted that the Muddemal
Entry Nos. 148/06 and 149/06 stated in Exhibits–285 and 287
respectively were made on his instructions and that the said
station diary entries were made after the entries were made in the
Muddemal Register. He has stated that the Muddemal Entry
No.147/06 stated in Exh.–282 was made on his instructions and
Muddemal Register Entry pertaining to the articles received from
JJ. Hospital would be after Muddemal Entry No. 149/06. He has
stated that the Muddemal Register Entry number is also noted on
the packet of the said muddemal for any subsequent retrieval of
the said property (witness was shown Exhibits–290 to 293). He
has further admitted that on perusing Exhibits 290 to 293, the
same reveals that no Muddemal Register Entry number was put
on the packet i.e. with respect to property received from J.J.
Hospital.
S.Q. Pathan / N.S. Chitnis 375/867
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137.6 PW39 has admitted that when FIR was registered in
C.R. No. 302/2006, the name of A11 was not disclosed by A9, as
the person who fired the gun. He has stated that he did not seize
the weapon of A11 nor did he make any efforts to collect the
scientific evidence as to whether the weapon of A11 was used or
not.
138 The evidence of PW39 cannot be relied in its entirety,
inasmuch as, part of his evidence appears to be doubtful and
contrary to the other evidence on record, both, oral and
documentary. The circumstances on record would reveal that A9
had lodged a false FIR alleging that Ramnarayan was shot at, in
retaliation. The falsity of the FIR would be also evident from the
circumstances enumerated herein-under.
b. Spot panchnama not recorded at the spot
S.Q. Pathan / N.S. Chitnis 376/867
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139 It is pertinent to note that the evidence of PW73–
Vilas Kandalgaonkar with respect to preparing of spot panchnama
at Nana Nani Park will show that the spot panchnama was not
recorded at the spot i.e. at Nana Nani Park, as deposed to by
PW39 but was infact, drawn at the Versova Police Station itself.
139.1 The fact that the spot panchnama was prepared at the
spot of the incident, as disclosed by PW39, is falsified by PW73–
Vilas Kandalgaonkar, the person who scribed the panchnama, the
evidence of PW1-Ramprasad, PW2-Ganesh Iyer; PW83-Umesh
Revandkar; and PW77-Mahendra Tatkare.
PW73 – Vilas Parmanand Kandalgaonkar
140 PW73-Vilas Kandalgaonkar was attached to Versova
Police Station, as a Constable at the relevant time. He has stated
that since he was on night duty after attending to a case, he
returned to the police station at about 23:00 hrs; that he sat on
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the bench outside the police station; that Detection Police Head
Constable Revandkar (PW83) told him that he was called by
Crime PI Sankhe (PW39); that he met PI–Sankhe, who told him
to go to the Detection Branch and do as per the orders of the
officers in the Detection Branch; that he went to the Detection
Branch; that two officers were present in the Detection Branch,
who told him that a panchnama was to be reduced into writing;
that he reduced the panchnama into writing as dictated by the
said officers; that it was a spot panchnama; that he learnt while
scribing the said panchnama, that it was with respect to exchange
th
of firing that took place on 11 November 2006 at Saat Bangla,
Nana Nani Park, which came within the jurisdiction of Versova
Police Station; that after the panchnama was reduced into writing,
he was told to leave and that he went to the police station. PW73
has admitted in his cross, that the panchnama (Exh.–283) was
scribed by him in his writing during that night. He has stated that
th
SIT recorded his statement on 28 August 2010. Certain
omissions were sought to be brought on record in the cross-
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examination with respect to, which room he was asked to go,
however, the said omissions are minor omissions and do not go to
the root of the matter. The fact remains, that PI–Sankhe had
asked him to do as per the orders of the officers. PW73 has
denied the suggestion that he was deposing falsely at the behest of
SIT. He has further admitted that he did not disclose to anyone
th
till 28 August 2010 that the spot panchnama was prepared in the
detection room of Versova Police Station. In para 12 of his cross-
examination, the said witness has admitted that the panchnama
was dictated by the officer and he reduced it into writing and that
he did not ask the officers as to why the panchnama was not
recorded on the spot. He has further in para 13 of his cross,
stated that the police officer brought in writing the particulars as
regards to the electricity pole number and measurements and that
he had not made a complaint to anyone that the panchnama was
recorded in the police station, without visiting the spot. He has
denied the suggestion that he wrote the panchnama at the say of
Sankhe (PW39) and that PW39 dictated the contents of the
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panchnama. Although, in his statement before SIT, the name of
the officer who had dictated the contents of the panchnama is not
disclosed, PW73 in his deposition, has stated that it was A9, who
had dictated the panchnama to him. He has denied the
suggestion that the said panchnama was drawn at the spot.
PW39's evidence that the spot panchnama was done at the spot is
also belied by PW83-Umesh Revandkar. Infact, PW83
corroborates the evidence of PW73.
141 It is also pertinent to note, that action was taken
against PW39-Mohandas Sankhe and the same is revealed from
the evidence of PW110-K.M.M. Prasanna. PW110 in his
evidence has deposed that default report was made against PW39
for preparing a false spot panchnama in C.R. No. 302/2006 and
on the basis of this report, he was given a punishment of stoppage
of an annual increment for one year by the then CP, Mumbai.
PW83 - Umesh Yashwant Revandkar
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142 PW83 was attached to Versova Police Station as a
Police Head Constable at the relevant time, and was attached to
the Detection Branch of Versova Police Station. He has stated
that API-Sartape (A11) was in-charge of the Detection Branch. He
th
has stated that on 11 November 2006, he was on night duty and
that he resumed duty at 20:30 hrs.; that after resuming duty, he
learnt that an encounter had taken place at Nana Nani Park and
therefore, police officers and police staff had gone to Nana Nani
Park; that he and PC–Imade, 30367 too had gone to Nana Nani
Park; and that they reached there within 15–20 minutes; that
they saw a crowd at the said corner of Nana Nani Park; that
when they reached there, PI–Sankhe (PW38), PSI–Harpude (A17)
and PC–More from the Detection staff were present at the spot;
that some representatives of newspapers were also present at the
spot; that the news representatives were doing shooting at the
spot with their cameras; that they learnt that the squad of Sharma
Saheb had done encounter of a gangster by the name Gupta; that
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he learnt that the injured was admitted to Cooper Hospital; that
there was pool of blood and a revolver was lying near the pool of
blood and one cartridge at some distance from the pool of blood;
that after some time Sr. PI - Sonawane from Versova Police
Station came to the spot; that PI–Sankhe (PW39) told him to
bring two panchas for recording the spot panchnama; that they
produced the panchas before Mr. Sankhe; that Daddikar, Tatkare,
Nandawadekar and More were collecting revolver, samples of
blood; that Harpude (A17) was collecting samples of earth; that
these articles were collected in plastic bags; that all articles in the
plastic bags were handed over to Harpude (A17); that Sr. PI –
Sonawane was at the spot, but after some time, he left the spot in
his vehicle; that he was at the spot for about 30–45 minutes; that
thereafter, he went for patrolling within the jurisdiction of
Versova Police Station as More was doing work at the spot; that
at about 11:00–11:30 hrs, he returned to Versova Police Station
and learnt that the injured had died and a crime was registered at
Versova Police Station; that after he returned to the police station,
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PI – Sankhe (PW39) called him in his cabin and told him to bring
a police constable having good handwriting, as spot panchnama
was to be recorded; that he took PC Kandalgaonkar 27503
(PW73) to PI–Sankhe (PW39); that PI–Sankhe (PW39) handed
over some papers to Kandalgaonkar, that Kandalgaonkar
(PW73) scribed the panchnama in the adjoining Detection Room
and that thereafter, he proceeded for patrolling within the
jurisdiction of Versova Police Station. The statement of the said
th
witness was recorded by SIT on 24 August 2019 and before the
th
Magistrate on 18 September 2010. He has stated that prior to
his disclosure to SIT, he had not disclosed about what had
transpired to any person; and that as he was not present, when
PW73- Kandalgaonkar was writing the panchnama, he did not
know the contents of the same.
143 Although an endeavour was made by the learned
counsel for appellants–accused to discredit the evidence of this
witness i.e. to show that he was not present at the police station,
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the said witness has explained why there is no mention in the
th
station diary entry of his roll call on 11 November 2006 and as
such there is no reason to disbelieve his testimony. As far as
squad is concerned, the said witness has denied that he has
deposed falsely that he learnt that the squad of Pradeep Sharma
had done the encounter. He has also denied the suggestion that
he was deposing under the pressure of SIT. He has further stated
that he had not disclosed to anybody prior to the recording of his
th
statement on 24 August 2010 that samples of earth (soil) were
taken by Harpude (A17) and that the plastic bags containing
articles were handed over to Harpude (A17) by More, Daddikar
and Nandawadekar. PW83’s evidence also reveals that blood was
collected in plastic bags and not in bottles as deposed to, by
Sankhe (PW39).
PW77–Mahendra Govind Tatkare:
144 The evidence of PW77 was also relied upon by the
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prosecution to show that none were present at the spot when the
alleged spot panchnama is stated to have been prepared i.e. on
th th
the intervening night of 11 and 12 November 2006, between
23:00 hrs. to 1:20 hrs. PW77 has stated that he was attached to
Versova Police Station and was on duty on Mobile–II of Versova
Police Station i.e. on night duty; that at about 20:18 hrs, Versova
Mobile–I received a message from Western Control Room stating
that one injured person was lying near Nana Nani Park; that at
that time, he was in the police station; that after sometime, Peter
Mobile Vehicle also received a message from Western Control
Room that the Peter Mobile Vehicle be taken to the spot; that
after some time they were also told to go to the spot and
accordingly they reached the spot between 20:45 hrs to 21:00
hrs; that when they reached the spot, officers from their police
station i.e. PI–Sankhe (PW39), PSI–Harpude (A17), Hawaldar
Nandavadekar, More and Imle from Detection Branch were also
present at the spot; that before they reached the spot the injured
was already taken to the hospital by Mobile–I of Versova Police
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Station; that on reaching the spot, he learnt that there was an
encounter between the police and a Gunda ; that the police
personnel were collecting samples of blood from the pool of
blood and a revolver from the spot, and the same were kept in a
plastic bag; that one empty cartridge of pistol was lying at some
distance from the pool of blood; that A17 collected samples of
earth (soil) from the spot in a plastic bag; that representatives of
TV channels were engaged in shooting and were taking
interviews/bytes of the police officers in plain clothes; that A9
from D.N. Nagar Police Station was giving an interview; that
thereafter, the officers from Versova Police Station, the other
officers and the police personnel left the spot, after which, he
also left the spot when everything was calm and quiet. He has
stated that he was at the spot for about 30 to 45 minutes. The
th
statement of PW77 was recorded by the SIT on 24 August 2010
th
and was also recorded by the learned Magistrate on 16
September 2010.
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144.1 There is nothing in the cross to disbelieve the
testimony of the said witness with respect to having gone to the
spot, pursuant to the message received by him from the Western
Control Room. He has in his cross-examination admitted that
there was a small pool of blood and it was only at one spot,
however, could not tell as to in which direction from the pool of
blood, the empty cartridge was lying. He has denied the
suggestion that he was at the spot for about 3–4 hours, after he
reached the spot. He has further in his cross stated that the
officers left the spot approximately at 9:30 hrs, however, he had
not noted down the same anywhere i.e. that the officers left the
spot approximately at 21:30 hrs. He has in his cross-examination
also admitted that A17 was helping in collection of evidence at
the spot and that he did not know as to when A17 had reached
the spot. The evidence of this witness also reveals that blood was
collected from the spot in plastic bags. Thus, this witness also
corroborates PW83, with respect to collection of blood in plastic
bags.
S.Q. Pathan / N.S. Chitnis 387/867
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145 The aforesaid evidence goes to show that nobody was
present at the time when the spot panchnama was alleged to have
been done at the spot i.e. between 23:00 hrs to 1:20 hrs. Except
for PW39, the evidence of all the witnesses would reveal that the
spot panchnama was not prepared at the spot. We, at the cost of
repetition, note that a default report was made against PW39 for
preparing a false spot panchnama in C.R. No.302/2006 and on
the basis of the same, his annual increment was stopped for one
year. Infact, the evidence of PW1 also duly corroborates the
evidence PW83, PW73 and PW77. According to PW1, when he
reached the spot at about 22:30 hrs., nobody was present at the
spot. The said evidence of PW1 is also duly corroborated by PW2
with respect to the same. Both PW1 and PW2’s evidence reveal
that when they reached the spot i.e. at Nana Nani Park at 22:30
hrs., there was total darkness and none was present. PW1 has
stated that when they reached the spot at 22:30 hrs., on
searching, they found some blood near the electric pole; that on
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the blood, a newspaper ‘ Dopahar Ka Samna ’ was placed and on
that paper, a stone was kept; that they found one jeep type
vehicle parked at some distance; that 3 to 4 persons were
standing near that vehicle; that he asked them whether there was
any encounter; that they told him that no encounter had occurred
on the spot. The evidence of PW2 is on similar lines.
146 Thus, the aforesaid evidence shows that the spot
panchnama was not prepared at the spot as alleged by PW39 i.e.
between 23:00 hrs. to 1:20 hrs and as such, the evidence of
PW39 to that extent is contradicted and belied by the
overwhelming evidence of other witnesses vis-à-vis the same i.e.
the evidence of PW83, PW73, PW77, PW1 and PW2.
c. No meeting held by A9 in his cabin
147 According to A9, he held a meeting in his cabin at
16:20 hrs. to inform the police personnel of the information
received from the informer that Lakhanbhaiya (Ramnarayan) was
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to come near Nana Nani Park to meet his accomplice. In the said
meeting, A9 has alleged that A15, A22, A18, A13 and other staff
were present. According to A9, he explained the information
received from the informer and accordingly, a plan was chalked
out to apprehend Lakhanbhaiya, an alleged member of the
Chhota Rajan Gang.
148 Before we proceed to analyse the evidence adduced
by the prosecution which falsifies the holding of any meeting, it
would be apposite to reproduce the affidavit filed by A9 in this
Court and admitted and relied upon by A9, during the course of
his arguments before us. We wish to reproduce only the relevant
part of the additional affidavit filed by A9 with respect to the
sequence of events as set out by him, as under:
“ADDITIONAL AFFIDAVIT
I. PRADEEP PANDURANG SURYAWANSHI, age 54, Senior
Police Inspector-In-Charge of Andheri Police Station, Mumbai for
myself and on behalf of other Police Officers/Interveners do
hereby state on solemn affirmation as under :-
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1. ….. ….. ….. ….. ….. ….. ….. …..
2. ….. ….. ….. ….. ….. ….. ….. …..
3. I further state that the correct and true details of the
incident that took place on November, 11, 2006 at Nana Nani
Park are put by way of a chart as follows:
| Sr.<br>No. | Date and<br>Time | Particulars |
|---|---|---|
| 1 | Nov. 11,<br>2006 at 4.45<br>p.m. | PI Pradeep Suryawanshi received<br>information from his informant that one<br>Ramnaryan @ Lakhanbhaiya Vishwanath<br>Gupta, a wanted and absconding accused<br>in serious crimes like murder, dacoity,<br>extortion, etc was meeting his accomplices<br>at Nana Nani Park, Seven Bungalows,<br>Andheri (W). |
| 2 | Nov. 11,<br>2006<br>at 5.15 p.m. | PI Pradeep Suryawanshi informed his<br>superior Officers i.e. the ACP D.N. Nagar<br>Division, the DCP Zone-IX and the Addl.<br>Commissioner of Police, West Region<br>accordingly. The said Officers ordered Pl<br>Suryawanshi to arrest Ramnaryan Gupta<br>with the additional help of Officers and<br>Policemen of Versova Police Station. |
| 3 | Nov. 11,<br>2006 at 5.40<br>p.m. | PI Suryawanshi contacted PI Sonawane of<br>Versova Police Station for help and<br>requested him to send available Officers to<br>D.N. Nagar Police Station. |
| 4 | Nov. 11, | PI Sartape, PSI Harpude and PN – 26645 |
S.Q. Pathan / N.S. Chitnis 391/867
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| 2006 at 6.10<br>p.m. | of Versova Police Station attended<br>D.N.Nagar Police Station as ordered. | |
|---|---|---|
| 5 | Nov. 11,<br>2006 at 6.30<br>p.m. | PI Suryawanshi called his staff i.e. API<br>Sarvankar, API Palande, PSI Patade and<br>other staff along with Officers of Versova<br>Police Station to his cabin. |
| 6 | Nov 11, 2006<br>at 6.40 p.m. | PI Suryawanshi briefed all the staff about<br>the secret information given by the<br>informant and the informant described the<br>absconding accused Ramnarayan. A plan<br>to arrest Ramnarayan was made and the<br>officers and men were given appropriate<br>instructions. The wanted person was a<br>hardcore criminal and was always in<br>possession of fire arms and never hesitated<br>to use it and therefore it was necessary to<br>plan the operation accordingly. |
| 7. | Nov. 11,<br>2006 at 7.10<br>p.m. | The Police squad reached the spot on<br>motor-cycles and rickshaws where<br>Ramnarayan was expected to come to<br>meet his accomplices. The squad was<br>divided into two groups and P!<br>Suryawanshi, the informant, API Sartape,<br>PSI Patade, Head Constable 18839, PN<br>26645 and PC-10502 hid themselves at<br>the west side of Nana Nani Park near the<br>compound. The second group of API<br>Palande, API Sarvankar, API Harpude,<br>Police Constable 31963, PC-31241 and<br>PC- 33492 were waiting at East side of<br>Nana- Nani Park opposite Trishul Building<br>in such a way that both the groups could |
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| watch the road and vehicles on it but were<br>not visible to a casual onlooker from the<br>road. The site map of the place of<br>incidence is annexed hereto and marked<br>as Exhibit A-1. | ||
|---|---|---|
| 8. | Nov 11, 2006<br>at 8.10 p.m. | At this time, a rickshaw stopped near the<br>Electric Pole at the South side of end of<br>Nana Nani Park. The approximate<br>distance of the passenger alighting from<br>the rickshaw from both the groups of the<br>squad was about 50 feet. |
| 9. | Nov. 11,<br>2006 at 8.10<br>p.m. | The informant immediately gave a signal<br>to Pl Suryawanshi that the passenger<br>alighting from the rickshaw was the<br>wanted accused Ramnarayan. |
| 10. | Nov. 11,<br>2006 at 8.11<br>p.m. | PI Suryawanshi alerted the other squad<br>under API Palande by the pre-arranged<br>signal that Ramnarayan had arrived. |
| 11. | Nov 11, 2006<br>at 8.12 p.m. | Both the groups of Police officers moved<br>forward to arrest Ramnarayan. However<br>perhaps due to the sudden movement of<br>the first group headed by PI Suryawanshi,<br>Ramnarayan became very alert and knew<br>that he was surrounded by Police. Within<br>a split second, he took out his firearm and<br>pointed it towards the group of Pl<br>Suryawanshi's men. Pl Suryawanshi |
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| shouted and warned him that they were<br>all policemen and he should surrender.<br>(Lakhan, hum policewale hai, fire mat<br>karo. Surrender ho jao). However,<br>Ramnarayan fired a round towards PI<br>Suryawanshi who evaded the same by<br>ducking down. At the same moment, API<br>Sarwankar also warned Ramnarayan to<br>surrender. Within a split second,<br>Ramnarayan fired another round towards<br>the second group of officers: | ||
|---|---|---|
| 12. | Nov 11, 2006<br>at 8.13 p.m. | The Police party to save themselves and to<br>protect the innocent road users, fired total<br>of five rounds towards Ramnarayan<br>(Pradeep Suryawanshi two rounds, API<br>Sarwankar, API Palande and API Sartape<br>each one round). Ramnarayan fell down<br>along with the firearm. |
| 13. | Nov 11, 2006<br>at 8.14 p.m. | The Police officers approached the<br>wounded Ramnarayan from all the sides<br>as they apprehended that Ramnarayan<br>may fire at them. On closer inspection<br>Ramnarayan was found alive but seriously<br>wounded and thereafter PI Suryawanshi<br>immediately at 8.15pm reported the<br>incidence to Police Control room. |
| 14. | Nov 11, 2006<br>at 8.28 p.m. | The Police Officers in the meanwhile<br>requested other private vehicles to take<br>the wounded person to hospital but no<br>body cooperated. Therefore wounded |
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| Ramnarayan was put in Versova 1- Mobile<br>Van which had received the message from<br>Control at 8.18p.m. and arrived at the<br>spot at 8.28 p.m. because of the report of<br>P.1.Suryawanshi to the Police Control. The<br>wounded person was loaded in the<br>Mobile-1 and it started for hospital at<br>8.36 p.m. | ||
|---|---|---|
| 15. | Nov 11, 2006<br>at 8.57 pm | The wounded person was brought to the<br>OPD of Cooper Hospital by the police. |
| 16. | Nov 11, 2006<br>at 9.00 pm | Ramnarayan was declared dead by the<br>Casualty Medical Officer at 9 p.m. |
| 17. | Nov 11, 2006<br>at 8.15 pm<br>and<br>9.15 pm | PI Suryawanshi instructed his staff to<br>cover and protect the spot of firing after<br>Ramnarayan was put in the vehicle for<br>hospitalization and thereafter went to<br>Versova Police Station at 8.50pm to lodge<br>FIR of the incidence. While the FIR was<br>being recorded, API Sarwankar informed<br>that Ramnarayan was declared dead<br>before admission by the CMO of Cooper<br>Hospital. |
| 18. | Nov 11, 2006<br>at 9.50pm | P1 Sankhe of Versova Police Station<br>completed recording of FIR No.302/06. |
| 19. | Nov 11, 2006<br>at 10.05 pm<br>to 10.35pm | Pl Sankhe made a panchnama of two<br>empties (pungli) of the bullets fired from<br>the Pt. 38 Service Revolver of Pi<br>Suryawanshi. |
S.Q. Pathan / N.S. Chitnis 395/867
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| Nov 11, 2006<br>between<br>10.05 pm to<br>00.15 pm on<br>Nov. 12,<br>2006 | PSI Jadhav of Versova Police Station<br>completed Inquest Panchnama at Cooper<br>it is pertinent to note that besides an<br>amount of Rs.920.75 and a pocket<br>telephone diary, there were two Local<br>Railway tickets found on the person of the<br>Ramnarayan;<br>(i) Ticket No:94303 dated 11 Nov-14<br>from Sanpada to Majid/ Mulund/Bandra<br>(via Wadala) and<br>(ii) Ticket No.36825 dated 11 Nov-16<br>from Bombay Central to Jogeshwari. All<br>the material found on the person of<br>Ramnarayan wan sealed in separate<br>envelopes in presence of Panch, witnesses<br>and their signatures taken on the<br>envelopes. | |
| 20. | Nov 11, 2006<br>between<br>11.00 p.m. to<br>01.35 a.m. on<br>Nov. 12,<br>2006. | PI Sankhe of Versova Police Station made<br>a spot Panchnama at the place of<br>incidence. Pl Sankhe carefully took into<br>possession a Revolver used by<br>Ramnarayan, having wooden butt and<br>marking "MADE IN JAPAN" lying at<br>about 9ft from the Electric Pole No.KBU-<br>13/061, and after its inspection removed<br>two live cartridges with hammer marks on<br>them and two empties, all having marks<br>"KF.32S $ WL" from this Revolver. All this<br>material was separately packed in 3<br>envelopes and sealed in presence of two<br>panch witnesses and signed by both the |
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| witnesses. The Police also took into<br>possession one empty having mark "KF-94<br>9MM22" (near entrance of Magnum Opus<br>Bldg) at a distance of 16.5 ft (fired from<br>9mm Pistol of API Sartape). This empty<br>was separately packed and sealed in the<br>presence of panch witnesses. The Police<br>also collected the blood sample from the<br>accumulated blood on the spot and blood<br>mixed with mud and only mud in 3<br>separate clean glass bottles which were<br>sealed in the presence of the panchas. | ||
|---|---|---|
| 21. | Nov 12, 2006<br>from 2.40<br>a.m. to 3.15<br>a.m. | PI Sankhe of Versova Police Station made<br>a panchnama and took into possession one<br>empty cartridge each from the Revolvers<br>of API Sarwankar and AP1 Palande in the<br>presence of two panch witnesses at<br>Versova Police Station. |
149 To the aforesaid affidavit is annexed the map of the
spot of the incident. The said map has also been admitted to by
A9. In the facts, we deem it necessary to reproduce the said
sketch/map of the spot of incident, for a better understanding of
how the encounter is alleged to have taken place, according to
some of the appellants/accused.
S.Q. Pathan / N.S. Chitnis 397/867
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S.Q. Pathan / N.S. Chitnis 398/867
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150 The aforesaid alleged meeting held by A9 in his cabin
is disputed by some of the appellants-accused, who are alleged to
have been present at the time of the meeting or at the time of the
alleged encounter. The holding of the meeting is also falsified by
the CDR of the accused persons i.e. the meeting that allegedly
took place in A9's cabin at D.N. Nagar Police Station at 18:20
hrs.
(i) According to A17, he never attended the meeting.
Infact, he has denied the meeting. The same is evident from the
answer given by A17 in his 313 statement to Question No.1149;
(ii) The CDR (Exh. – 581) and Cell ID (Exh. – 571) show
that A9 was at Juhu–Vile Parle between 12:17 hrs.–18:21 hrs.
(The distance approximately between Juhu–Vile Parle and D.N.
Nagar Police Station is 10 to 15 minutes);
(iii) The CDR (Exh. - 521) and Cell ID (Exh. – 548)
show that A15 – Palande was at Amboli, Andheri (West) and not
at D.N. Nagar Police Stations, at the relevant time;
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(iv) The CDR (Exh.–936) and Cell ID (Exh.–421) show
that A17–Harpude was at Yari Road Bridge Chowky at 18:40
p.m;
(v) The CDR (Exh. – 521) and Cell ID (Exh.–548) show
that A22 – Sarvankar was somewhere at Juhu at 18:21 p.m;
151 The aforesaid location of the police personnel who
are alleged to have been present at the meeting with A9 and the
location of A9 clearly shows that no such meeting as alleged, took
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place in the cabin of A9 on 11 November 2006 at 18:20 hrs in
D.N. Nagar Police Station, as claimed by A9 in his FIR being C.R.
No.302/2006.
d. No prior information furnished to superiors by A9
152 It is the case of A9, that he had informed the superior
officers of the information received by him and had taken their
permission to conduct the operation. Admittedly, there is no
document on record to support the said claim made by A9 by way
S.Q. Pathan / N.S. Chitnis 400/867
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of a station diary entry or any other entry. Infact, the evidence is
to the contrary, inasmuch as, all the superior officers have denied
receiving any such information from A9. The prosecution in
support of its case, has also relied on the evidence of the
following witnesses i.e. the evidence of the superior officers of A9
to show that they received no such information as alleged by A9.
PW63 – Arun Vasantrao Awate:
153 PW63-Arun Awate was working as an ACP at D.N.
Nagar Division under Zone IX, at the relevant time. D.N.
Nagar, Oshiwara and Versova Police Stations comes within the
jurisdiction of D.N. Nagar Division. PW63 has stated that in
November 2006, Mr. Ajendra Singh Thakur (PW87), was the
Senior P.I. in D.N. Nagar Police Station; that OA1-Pradeep
Sharma, A9-Pradeep Suryawanshi, Tavare and Avdhoot Chavan,
were the police inspectors in D.N. Nagar Police Station. He has
stated that at the relevant time, OA1 alongwith some police
S.Q. Pathan / N.S. Chitnis 401/867
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personnel served in a special squad and worked as per the
directions of their superior officers. He has stated that as per his
knowledge API-Palande (A15) and some constables were on
deputation in the squad of OA1 and that as per the orders of
Addl. CP (West Region), the said squad was formed. He has
stated that A15 was a member of the said squad.
th
153.1 PW63 has stated that on 11 November 2006, he had
visited Andheri Sports Complex for preparation of a programme
th
“Umang” to be held on 12 November 2006 at the said place and
also for law and order and for security purpose, since Andheri
Sports Complex came within the D.N. Nagar Division i.e. within
his jurisdiction. He has stated that on the said day, when he was
on bandobast duty at the venue at about 20:00 hrs. to 20:15 hrs,
Vijay Sonawane, Senior P.I of Versova Police Station met him at
the venue and informed him that there was exchange of fire
between the police and accused within the jurisdiction of Versova
Police Station; that after informing the same, Vijay Sonawane
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immediately left the venue; that on that day, he did not receive
any information as regards the said exchange of fire from any
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other officers; that on the next day i.e on 12 November 2006,
he learnt that one Ramnarayan Gupta @ Lakhanbhaiya was killed
by a joint team, from Versova Police Station and D.N. Nagar
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Police Station. PW63 has categorically stated that on 11
November 2006, he did not receive any information as regards
Ramnarayan.
153.2 In his cross-examination, PW63 has stated that on
th
12 November 2006 he made inquiry as regards the person who
died in the police firing and during the inquiry, learnt that the
person who was killed in the police firing, was a wanted accused
and that in the joint operation Ramnarayan Gupta @
Lakhanbhaiya was killed in an encounter by the police from
D.N. Nagar Police Station and Versova Police Station. PW63 has
further in his cross stated that the FIR, statements and
investigation papers were placed before him for his endorsement;
S.Q. Pathan / N.S. Chitnis 403/867
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that he did not call the officers whose statements were recorded
in C.R. No. 302/2006 for the purpose of questioning them. In his
cross, PW63 has admitted that it was correct to say that as per
police manual, all senior officers are required to visit the scene of
offence in a serious crime and that these officers would include
Senior P.I, ACP, DCP; and that he did not ascertain whether the
DCP had visited the scene of offence. He has further admitted
that it was expected of him to visit the scene of offence on
learning of exchange of fire between the police and accused and
that as he was engaged in bandobast duty, he could not visit the
spot. He has further admitted that he did not inform the said
information to his superiors such as DCP and Addl. CP. He has
further in his cross stated that in respect of C.R. No.302/2006 of
Versova Police Station, he had the occasion to supervise the
inspection/investigation, however, he did not give instructions to
the I.O., during the course of investigation on the basis of the
papers of the crime placed before him nor had he any occasion to
assist the DCP in preparation of the report to be submitted to the
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Competent Authorities. He has stated that while acting as a
supervising officer, at no point of time, he had any doubt that the
th
police firing of 11 November 2006 was not genuine. He has
further admitted that he did not make inquiry with the officers
who were involved in the incident and when the statements of
these officers were placed before him, he was satisfied with those
statements.
PW61 - Vinaykumar Keshavprasad Chaube:
154 PW61 was attached to Zone-IX, Mumbai as DCP at
the relevant time. He has stated that there was one programme
th
“Umang” to be held on 12 November 2006 at Andheri Sports
Complex within the jurisdiction of Oshiwara Police Station
(Under Zone-IX) for the Police Welfare Fund and that as he was
the Nodal Officer of the said programme, he was required to do
multifarious jobs including supervision of bandobast, organising
the programme, inviting actors for the said programme and that
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th
he was busy for a month prior to 12 November 2006 in
th
organising the said programme; that in the evening of 11
November 2006, there was a dress rehearsal which was attended
by senior officers from their department, i.e. CP, Jt. CP, Addl. CP,
th
etc; that on 11 November 2006, he was informed by his RTPC
(Radio Telephonic Police Constable) that one Ramnarayan Gupta
was killed in a police operation at Nana Nani Park; that the
operation was carried out by police officers from Versova Police
Station and D.N. Nagar Police Station.
154.1 In his cross-examination, the said witness has stated
that as far as he recollects, the RTPC might have informed him
between 21:00 to 21:30 hrs. of the incident and that he was not
aware as to whether by that time, news was flashed on TV; and
th
that he could not visit Nana Nani Park on 11 November 2006 as
he was busy in bandobast and in preparations for 'Umang'
programme. He has further stated that in ordinary course, he
was required to visit the place where firing had taken place. He
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has further stated in his cross that the report in respect of police
firing was required to be submitted to the Addl. Chief Secretary,
(Home), DGP, CP, NHRC, SHRC and to the Collector and that it
was correct to say that in respect of police firing within his
jurisdiction, he was supposed to submit reports to the said
authorities. He has further stated that he submitted reports to the
aforesaid authorities in respect of police firing at Nana Nani Park.
When questioned whether the report filed by him before the
authorities was true and correct, PW61 answered that “the report
was submitted on the basis of police station report and FIR and
that the report was correct at that time.” He has stated that he
had filed the report, after the report was received from Versova
Police Station, after affixing his signature on it. He has further
stated that at the time of submitting the said report to the said
authorities, he was satisfied that there was a genuine encounter at
Nana Nani Park. He has further stated that when he was DCP,
Zone-IX, Ramprasad (PW1), brother of the deceased, did not
approach him nor did he file any complaint with him.
S.Q. Pathan / N.S. Chitnis 407/867
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155 Thus, it is evident from the evidence of PW61 and
PW63, that they had received no prior information as alleged to
have been given by A9. Infact, it is pertinent to note, that there is
no suggestion/question put to the said witnesses, that A9 had
informed them of the information so received by him.
PW78 – Bipin Mangalaprasad Singh Bihari:
156 PW78, Addl. CP, Western Region, Mumbai, who
according to the prosecution, was responsible for formation of a
squad under OA1, has denied that any such squad was formed at
his behest. PW78 has also denied having being informed of any
information, as allegedly given by A9, to his superiors. He has
infact categorically denied giving any directions or instructions
prior to the incident to any officer. He has further stated that he
th
learnt about the incident on 11 November 2006 from his
wireless operator. Infact, no suggestion has been given by the
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appellants-accused to this witness during the cross-examination,
that A9 had informed him about the secret information.
PW87 – Ajendrasingh Sadansingh Thakur:-
157 Similarly, PW87–Ajendrasingh Thakur, Sr. P.I. of D.N.
Nagar Police Station, has categorically in his evidence stated that
he was kept in the dark about the joint operation of the D.N.
Nagar Police Station and Versova Police Station. It is pertinent to
note that there was no cross examination on this issue.
158 The aforesaid evidence clearly shows that the claim of
A9 that he had informed the superiors about the information so
received and that he had sought permission from them to conduct
the special operation on the basis of the secret information, is
belied by the evidence of all the witnesses i.e., A9’s superior
officers, as stated aforesaid. The evidence infact shows that no
superior officers were either informed or they were aware nor
S.Q. Pathan / N.S. Chitnis 409/867
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any permission was taken to conduct the secret operation as
alleged by A9. Even PW78-Addl. CP, Western Region, Mumbai,
for reasons best known to him, has also denied being informed of
the secret operation.
e. False station diary entries and documents
159 The aforesaid evidence is further corroborated by the
false station diary entry created to cover up the fake encounter. In
this context, it would be apposite to reproduce the following
entries which would show the falsity or creation of evidence by
the appellants-accused to cover up the fake encounter:-
(i) The station diary entry at the Versova Police Station at
18:05 hrs (Exh.884-A) reads thus:
| fnukad | ?kVuk 11@11@2006 | ‘ksjk |
|---|---|---|
| 18-05 | ¼33½ l-iks-fu- ljrkis] iks- mifu gjiqMs<br>o iks-fu- dz- 26645 gs ek- vfrfjDr | xksiuh; dkekdjrk<br>jokuk |
S.Q. Pathan / N.S. Chitnis 410/867
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| iksyhl vk;qDr if’pe izk- foHkkx ;kaps<br>vkns’kkus xksiuh; dkekdjrk nk-ukS-uxj<br>iks- Bk.ks ;sFks jokuk >kys- |
|---|
English translation of the above station diary entry reads thus :
| Date | Incident Date 11.11.2006 | Remark |
|---|---|---|
| 18.05 hrs | As per the order of the Additional<br>Police Commissioner, Western Region,<br>API Sartape, P.S.I. Harpude and P.C.<br>No. 26645 proceeded to the D.N.<br>Nagar Police Station for confidential<br>work. | Proceeded for confidential<br>work |
(Nitin Sartape is A11, Ganesh Harpude is A17 and
Pandurang Kokam (A19) is P.C. No. 26645)
(ii) The station diary entry at the D.N. Nagar Police
Station at 18:55 hrs (Exh. – 669A), is made by A15. The same
reads thus:
| fnukad | 11@11@2006 ?kVuk | ‘ksjk |
|---|---|---|
| 18%55 | ¼25½ Ikks-fu- lw;Zoa’kh] liks-fu ikykaMs- | jokuk |
S.Q. Pathan / N.S. Chitnis 411/867
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| ljo.kdj- iks-fu-ikrkMs vkf.k vaeynkj<br>R;kpizek.ks olksZok iksyhl Bk.;kps<br>liksfu ljrkis] iks- mifu gkjiqMs iks-uk-<br>dz- 26645 gs ckrehnkjklg ukuk ukuh<br>ikdZ toG] tqgw olksZok fyad jksM] pkj<br>caxyk] va/ksjh ¼i½] eaqcbZ;sFks feGkysY;k<br>ekfgrhph ‘kgkfu’kk dj.;klkBh vkf.k<br>vusd xaHkhj xqUg;kr ikfgts vlysyk<br>R;kapizek.ks Qjkj vlysY;k vkjksihl<br>vVd dj.;k djhrk jokuk >kys- |
|---|
English Translation of the above station diary entry reads thus:
| Date | 11/11/2006 Incident | Remark |
|---|---|---|
| 18:55<br>Hrs. | (25) As per the (information) received,<br>P.I- Suryawanshi, API-Palande, Sarvankar,<br>PSI- Patade and Police Personnel so also<br>API-Sartape, PSI–Harpude and P.N,<br>Buckle No. 26645 attached to Versova<br>Police Station alongwith the informer<br>proceeded to the place near Nana Nani<br>Park at Juhu Versova Link Road, Four<br>Bungalows, Andheri (W), Mumbai to<br>confirm the information received and to<br>arrest the accused wanted in serious<br>offences. | Proceeded |
(Pradeep Suryawanshi @ Nana is A9, Dilip Palande is A15,
Arvind Sarvankar is A22, Anand Patade is A18, Nitin Sartape is
S.Q. Pathan / N.S. Chitnis 412/867
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A11, Ganesh Harpude is A17 and Pandurang Kokam-P.C. No.
26645 is A19).
160 The station diary entry of return of the staff to D.N.
th
Nagar Police Station (Exh.–670) at 3:35 hrs. on 12 November
2006, is consistent with C.R. No.302/2006. The author of the
said entry is A15.
| fnukad | ?kVuk | ‘ksjk |
|---|---|---|
| 03%35 | ¼3½ LkanHkZ Bk.ks nSuafnuh dzekad 25@06]<br>fnukad 11-11-2006 vUo;s iks- fu- lw;Zoa’kh<br>l- iks- fu- ikykaMs] ljoudj] iks- mifu-<br>ikrkMs vkf.k vaeynkj vls feGkysY;k<br>ekfgrhph ‘kgkfu’kk o xaHkhj xqUg;kr ikfgts<br>vkjksihl vVd dj.;kdkeh ukuk ukuh ikdZ<br>toG tqgw olksZok fyad jksM] lkr caxyk]<br>va/ksjh ¼i½] ;sFks jokuk >kys gksrs rs ijr<br>vkys o vls fuosnu djrkr dh<br>fn- 11-11-2006 jksth iksyhl fujh{kd<br>iznhi lw;Zoa’kh ;kauk [kkl [kc&;kekQZr [kcj<br>feGkyh dh NksVk jktu VksGhpk [kqu] njksMk]<br>tcjh pksjh vkf.k [kaM.kh lkj[;k vusd xaHkhj<br>xqUg;kr ikfgts vlysyk vkf.k Qjkjh | iksyhl fujh{kd<br>lw;Zoa’kh] lgk¸;d<br>iksyhl fujh{kd ikykaMs]<br>ljoudj] iksyhl mi<br>fujh{kd ikrkMs o<br>vaeynkj ukuk ukuh<br>ikdZ] lkr caxyk]<br>va/ksjh ¼i½] ;sFkwu<br>R;kauk feGkysY;k<br>ekfgrhph ‘kgkfu’kk<br>d:u ijr o dqfo[;kr<br>xaqM jkeukjk;.k<br>fo’oukFk xqIrk] o;<br>38 gk iksyhl pdedhr<br>t[keh gksÅu |
S.Q. Pathan / N.S. Chitnis 413/867
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| lrr<br>¼3½ | vlysyk vkjksih ukes jkeukjk;.k mQZ<br>y[kuHkS;k fo’oukFk xqIrk] o; 38 gk ukuh<br>ikdZ] lkr caxyk] va/ksjh ¼i½] eqacbZ ;sFks<br>R;kps lkFkhnkjkauk HksB.;klkBh ;s.kkj vkgs-<br>lnjph [kcj rkRdkG ofj”Bkauk dGowu<br>R;kaP;k ekxZn’kZuij lqpusuqlkj ojlksok<br>iksfyl Bk.;kps l-iks-fu- ljrkis] iksfyl<br>mifujh{kd gkjiqMs o iks-fu- 26645 ;kaph<br>enr ?ksÅu iks-fu- lw;Zoa’kh] liks-fu ikykaMs]<br>ljo.kdj- iks-mifu-ikrkMs iksgk-18839]<br>26645] iks-’kh- 10502 vls loZ vf/kdkjh<br>o vaeynkj oj ueqn fBdk.kh jokuk gksÅu<br>nksu xV r;kj d:u ukuk ukuh ikdZ toG<br>osxosxG;k fBdk.kh 19-10 ok- nck /k:u<br>clys- lqekjs 20-10 ok- ukuk ukuh ikdZ<br>toG ,dk fj{kkrwu uewn Qjkjh o ikfgts<br>vlysyk vkjksih ukes jkeukjk;.k mQZ<br>y[kuHkS;k fo’oukFk xqIrk mrjyk- rsOgk R;kl<br>ckrehnkjkus vksG[kwu b’kkjk dsyk vlrk uewn<br>vf/kdkjh o vaeynkj gs R;kal vVd<br>dj.;kdkeh iq<s ljlkoys vlrk uewn<br>vkjksihus R;kP;k toGhy dejsyk [kksoysys<br>fjOgkWYoj dk<wu jks[kys] rsOgk ueqn vf/kdkjh<br>o vaeynkj ;kauh R;kal iksyhl vlY;kps<br>lkaxwu Lok/khu gks.;kl lkafxrys vlrk ueqn<br>vkjksihus xksGhckj dj.;kl lq:okr dsyh-<br>R;kus iksyhlkapk b’kkjk u tqekurk ijr<br>xksGhckj dsyk vlrk] iksfylkauh Loj{k.kkFkZ o<br>tursP;k iknpk&;kaP;k laj{k.kkFkZ R;kP;koj<br>xksGhckj dsyk vlrk] rks xaHkhj t[keh >kyk-<br>R;kosGh iksyhl o tursP;k laj{k.kkFkZ | dqij :X.kky;kr nk[ky<br>gks.ksiwohZ e;r- |
|---|
S.Q. Pathan / N.S. Chitnis 414/867
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| lrr<br>¼3½ | iksfylkauh xksGhckj dsyk- R;kr iksyhl<br>fufj{kd izfni lq;Zoa’kh ;kauh nksu xksG;k] l-<br>iks-fu-ljo.kdj] ikykaMs ;kauh izR;sdh ,d<br>xksGh R;kaP;k lOghZl fjOgkWYoj e/kqu Qk;j<br>dsyh o l-iks-fu- ljrkis ;kauh vkiY;k<br>fiLry e/kqu ,d xksGh Qk;j dsyh-<br>lnj t[keh vkjksihl dqij :X.kky;kr<br>vkS”k/kksipkjk djhrk usys vlrk] rks nk[ky<br>gks.ks iwohZp e;r >kY;kps rsFkhy MkWDVjkauk<br>?kks”khr dsys-<br>lnj e;r vkjksih blekP;k e`rnsgkpk<br>lfoLrj iapukek dsyk vlrk ,dw.k lkr cqysV<br>t[kek ‘kjhjkoj vk<GY;k-<br>rlsp ?kVukLFkGkP;k iapukek dsyk<br>vlrk ?kVukLFkGko:u lnj vkjksih blekps<br>fjOgkWYoj tIr dj.;kr vkys-<br>lnj ?kVusckcr olksZok iks-Bk.ks ;sFks xq-<br>j-dz-302@06 dye 353] 307 Hkk-n-fo-<br>lg dye 3] 25] 27 Hkk-g-dk vUo;s xqUgk<br>uksanfo.;kr vkyk-<br>rlsp olksZok iks-Bk.ks ;sFks iks-fu-<br>lq;Zoa’kh ;kauh Qk;j dsysY;k nksu xksG;kapk<br>fjdkE;k iqxG;k l-iks-fu- ikaykaMs o ljo.kdj<br>;kauh Qk;j dsysyh izR;sdh ,d xksGhph<br>iqxGh iapukekUo;s rkC;kr ?ks.;kr vkyh- |
|---|
English Translation of the above station diary entry reads
thus:
S.Q. Pathan / N.S. Chitnis 415/867
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| 03.35 hrs | As per Reference Station Diary Number<br>25/06 dated 11.11.2006, P.I. Suryawanshi,<br>A.P.I. Palande, Sarvankar, P.S.I. Patade and<br>constables who had proceeded to the place<br>near Nana Nani Park, Juhu Versova Link<br>Road, Saat Bungalow, Andheri (W) for<br>ascertaining the information which they had<br>received and for arresting the Accused<br>wanted in a serious offence, have returned<br>and are reporting that on the date<br>11.11.2006, Police Inspector Pradeep<br>Suryawanshi received information from<br>special informer that Ramnarayan @<br>Lakhanbhaiya Vishwanath Gupta, age : 38<br>years, the absconding Accused of Chhota<br>Rajan Gang, wanted in many serious<br>offences like murder, dacoity, robbery and<br>extortion, was going to come at Nana Nani<br>Park, Saat Bungalow, Andheri (W), Mumbai<br>to meet his accomplices.<br>He immediately gave the said<br>information to the Superior Officer and as<br>per his guidance and instructions, he, with<br>the help of A.P.I. Sartape, Police Sub-<br>Inspector Harpude and P.N. B.No. 26645,<br>and P.I. Suryawanshi, A.P.I. Palande,<br>Sarvankar, P.S.I. Patade, P.H.C. B. No.<br>18839, 26645, P.C. B.No.10502, thus all the<br>Officers and constables proceeded to the<br>above-mentioned place, they formed two<br>groups and lied in wait at different places | Police Inspector -<br>Suryawanshi, Assistant<br>Police Inspector –<br>Palande, Sarvankar,<br>Police Sub Inspector –<br>Patade and Police<br>Personnel, thus all, have<br>returned from Nana<br>Nani Park, Seven<br>Bungalows, Andheri<br>after verifying and<br>ascertaining the<br>information that they<br>had received and<br>notorious gangster<br>Ramnarayan<br>Vishwanath Gupta,<br>age : 38 years has been<br>injured in firing and is<br>declared dead before<br>admission in Cooper<br>Hospital. |
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S.Q. Pathan / N.S. Chitnis 416/867
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| near Nana Nani Park at 19.10 hrs. At<br>around 20.10 hrs, the above-mentioned<br>absconded and wanted Accused by name<br>Ramnarayan @ Lakhanbhaiyya Vishwanath<br>Gupta got down from an autorikshaw near<br>Nana Nani Park. Thereupon, the aforesaid<br>informer identified him and gave a signal.<br>Thereupon, when the above-mentioned<br>Officers and Constables proceeded ahead to<br>arrest him, the said Accused took out a<br>revolver with him, tucked to his waist and<br>pointed it. At that time, the above-<br>mentioned Officers and Constables told him<br>that they were the Police personnel and<br>asked him to surrender. Thereupon, the<br>said Accused started firing. He, by<br>disregarding the warning given by the<br>Police, again started firing and therefore,<br>when the Police fired at him in self defence<br>and for the safety of the passers by, he got<br>grievously injured. At that time, the Police<br>personnel fired in self defence and for the<br>safety of the passers by in which the Police<br>Inspector Pradeep Suryawanshi fired two<br>bullets and A.P.I. Sarvankar, Palande fired<br>one bullet each from their service revolvers<br>and A.P.I. Sartape fired one bullet from his<br>pistol.<br>When the said injured Accused was<br>taken to Cooper Hospital for medical<br>treatment, the Doctor there declared him<br>dead before admission.<br>On recording detailed panchnama in |
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S.Q. Pathan / N.S. Chitnis 417/867
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| respect of the dead body of the deceased<br>Accused, total seven bullet injuries were<br>found on his dead body.<br>On recording panchnama in respect of<br>the place of incident, the revolver of the said<br>Accused person was seized after the<br>incident.<br>An offence has been registered vide C.R.<br>No.302/06 under sections 353, 307 of the<br>IPC r/w Sections 3, 25, 24 of the Indian<br>Arms Act with Versova Police Station.<br>Further, empty cartridges of two<br>bullets fired by P.I. Suryawanshi and the<br>cartridges of one bullet each fired by A.P.I.<br>Palande and Sarvankar have been taken into<br>possession under panchnama in Versova<br>Police Station.<br>(emphasis supplied) |
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(Names disclosed in the station diary entry are of Pradeep
Suryawanshi @ Nana (A9), Dilip Palande (A15), Arvind
Sarvankar (A22), Anand Patade (A18), Nitin Sartape (A11),
Ganesh Harpude (A17) and Pandurang Kokam-P.C. No. 26645
(A19), Prakash Kadam-PHC B.No. 18839 (A16) and Devidas
Gangaram Hari Sakpal- PC B.No.10502 (A13).
S.Q. Pathan / N.S. Chitnis 418/867
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161 The said entries were made by A15. A15 has not
disputed C.R. No.302/2006 or firing at the deceased. The same
will be further evident from the evidence on record i.e.
manipulation of records, to show that it was a genuine encounter.
f. Revolver and railway tickets planted on the deceased
162 According to the prosecution, the appellants/accused,
planted a revolver to cover up the fake encounter. He submitted
that after the alleged encounter, Mr. Sawant, a fingerprint expert
was summoned to examine the fingerprints on the revolver from
which Ramnarayan allegedly fired, however, no fingerprints were
found on the same. The learned counsel for the appellants refuted
the said submission. They submitted that merely because no
fingerprints were found on the weapon, would not, by itself,
bolster the prosecution case that Ramnarayan did not fire from
the same. It was submitted that there was no reason for the police
to falsely come with a theory of Ramnarayan firing at them, when
infact the circumstances show that it was genuine encounter.
S.Q. Pathan / N.S. Chitnis 419/867
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163 The evidence on record shows that no fingerprints
were found on the said revolver. The same has also not been
seriously disputed by the appellants/accused. The said evidence is
further corroborated by the evidence of PW86. It appears that
handwash of both the hands of the deceased (Ramnarayan) was
taken at the time when he was at Cooper Hospital, however, the
results were inconclusive. According to the prosecution, the same
fortifies their case that the alleged weapon purportedly used by
the deceased was never fired by him and was infact planted. If the
said evidence is accepted, the defence theory that the deceased
fired at the appellants/accused and in response, they fired at the
deceased, will have to be rejected outright. It is clear from Exh.-
284 that no fingerprints were found on the weapon allegedly
used by the deceased i.e. revolver (Article 49) and the CA report
(Exh.-290) also reveals that result of the handwash of the
deceased was inconclusive. Thus, there is substance in the
S.Q. Pathan / N.S. Chitnis 420/867
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prosecution case that no bullets were fired as alleged by the
appellants/accused and that the weapon appears to have been
planted on the deceased.
164 It is the prosecution case that not only was the
weapon planted on the deceased to show that he fired at the
appellants/accused, as a result of which, they were constrained to
fire at him, but the police also planted railway tickets on the
person of the deceased, to show that he had travelled from
Sanpada to Masjid/Mulund/Bandra (via Wadala) and from
Bombay Central to Jogeshwari. There appears to be substance
with respect to planting of railway tickets on the deceased, having
regard to the following circumstances; (i) It is pertinent to note
that Dr. Sunil Shinde (PW11) of Cooper Hospital had made
necessary entries with respect to the articles found in the
possession of the deceased. Exh. 174A i.e the MLC register reads
thus:
S.Q. Pathan / N.S. Chitnis 421/867
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| No. | Date and<br>month of<br>admission | Hour of<br>Admissio<br>n | Name | Caste | Age | Sex | Brought by | Occup-<br>ation | Resid-ence |
|---|---|---|---|---|---|---|---|---|---|
| 22278 | 5.11.06/<br>42521/ | 9:00 pm | Ramnarayan<br>Vishwanath<br>Gupta | 38<br>Yrs. | Male | PC<br>970043/<br>Versova | |||
| Property<br>Cash<br>100X9 = 900<br>10X1 = 10<br>5X1 = 2<br>2X1 = 2<br>2X1 = 2<br>--------<br>919/-<br>Wallet X I<br>Telephone Diary |
| If injury, nature, causes of injury | Initials of the<br>Medical Officer on<br>Duty | Remarks |
|---|---|---|
| Pt. brought dead to casualty by<br>PC 970043, Versova, alleged h/o<br>bullet injuries over body at<br>Nanipark, Versova at 8.15 p.m.<br>today<br>C/B Pulse – absent,<br>Respiration – absent<br>Ht – absent<br>Pupils – dilated fixed NRTL<br>1. Circular puncture wound 1 cm<br>forehead fresh. |
S.Q. Pathan / N.S. Chitnis 422/867
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| 2. Circular puncture wound 1 cm<br>Rt. ant. Chest 4th ICS above<br>nipple.<br>3. Circular puncture wound 1 cm<br>2nd ICS Lt. ant. chest, fresh.<br>4. Circular puncture wound 1 cm<br>Lt. 4th ICS anteriorly fresh.<br>5. Circular punctured exit wound<br>Rt. 3rd ICS posteriorly fresh 1<br>cm.<br>6. Circular punctured exit wound<br>posteriorly 1 cm fresh Lt. body<br>of scapula. |
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165 The description of the articles found on the person of
the deceased as stated in the MLC register were handed over to
PW51-Anil More. In the said description, there is no mention of
any railway ticket being found on the person of the deceased.
166 Similarly, in the station diary entry (Exh.-285A and
Exh.-12), there is no mention of any railway ticket. The said
station diary entry was made by PSI Vijay Jadhav on the
S.Q. Pathan / N.S. Chitnis 423/867
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directions of PW39-PI Sankhe. Infact, PW39 in his deposition,
has stated that the station diary entry i.e Exh.- 285A was made
after the muddemal entry (Exh.-299A) in Muddemal Register was
effected. Exh.- 285A and Exh.-299A read thus ;
Exhibit- 285A
| fnukad | 12@11@06 ?kVuk | ‘ksjk |
|---|---|---|
| 02-00 | ¼1½ lanHkZ Bk.ks nSuafnuh dzekad] 38@06 o<br>302@06 fnukad 11-11-06 vUo;s jokuk<br>>kysys iks-fu- la[ks] brj vf/kdkjh o vaeynkj<br>iksyhl Bk.;kl ;sÅu fuosnu djrkr dh xq- j-<br>dz- 302@06 dye 307] 353] Hkknfolg 3]<br>25] 27 Hkk-g-dk- ;k xqUg;krhy ?kVukLFkGkpk<br>nksu iapkale{k iapukek dj.;kr vkyk R;kpizek.ks<br>?kVukLFkGkps [kktxh Nk;kfp=dkjk ekQZr Nk;kfp=s<br>?ks.;kr vkys- R;kpizek.ks ?kVukLFkGh feGwu<br>vkysY;k oLrw lhycan d:u rkC;kr ?ks.;kr<br>vkY;k-<br>1- ,d esM bu tiku vls ,dk cktwl<br>dksjysys fjOgkYoj<br>2- fjOgkYoj e/khy nksu ftoar dkMrqls<br>R;koj rGkl gWej ekdZ vlysys-<br>KF32S $ WL<br>3- fjOgkYoj e/khy nksu fjdkeh firGh<br>iaqxG;k ;kaP;k rGk’kh vls ekfdZax<br>KF32S $ WL<br>vlwu rGk’kh gWej ekdZ vkgs-<br>4- ?kVukLFkGh iMysyh ,d fjdkeh<br>firGh iaqxGh R;koj vls ekfdZax-<br>KF94 9mm 22 | xq- dz-<br>302@06<br>dye 307]<br>353]<br>Hkknfopk<br>?kVukLFkG o<br>bUDosLV<br>iapukek d:u<br>ijr<br>rkC;kr<br>?ksrysY;k oLrw |
S.Q. Pathan / N.S. Chitnis 424/867
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| 5- jDr Hkjysyh ,d ckVyh-<br>6- ekrh fefJr jDr vlysyh ,d ckVyh-<br>7- ekrh Hkjysyh ,d ckVyh-<br>R;kpizek.ks lnj xqUg;krhy e;r vkjksih<br>ukes] jkeukjk;.k mQZ y[kuHkS;k foÜoukFk<br>xqIrk ;kpk e`rnsgkpk bUDosLV iapukek dj.;kr<br>vkyk vlwu lnj e`rnsgkP;k ‘kjhjkoj [kkyhy<br>izek.ks t[kek gksR;k-<br>1- dikGkoj e/;Hkkxh v/kkZ ls-eh-O;klkph<br>[kksy t[ke-<br>2- mtO;k dkukP;k ikGhP;k vkrhy Hkkxkr<br>1@2 ls-eh- O;klkph t[ke-<br>3- mtO;k LrukxzgkP;k oj 2 1@2Þ<br>varjkoj v/;kZ ls-eh- O;klkph t[ke-<br>4- MkO;k LrukxzgkP;k oj frjI;k cktwl<br>NkrhP;k e/; Hkkxkiklwu 2Þ varjkoj v/;kZ ls-eh-<br>O;klkph t[ke-<br>5- lnj t[kesP;k oj 1Þ varjkoj<br>v/;kZ ls-eh- t[ke-<br>6- ikBhl mtO;k cktwl [kqC;ktoG 1<br>ls-eh- O;klkph t[ke-<br>7- ikBhl MkO;k cktwP;k [kqC;ktoG 1<br>ls-eh- O;klkph t[ke-<br>lnj e`rnsgkps [kktxh Nk;kfp=dkjk dMwu<br>fofgr dksukrwu Nk;kfp=s dk<yh- R;kpizek.k<br>e`rnsgkps diMs o R;kP;k iWUVP;k f[k’;kr feGkysys<br>ikWdsV] R;krhy jks[k :-920-75 iSls o VsfyQksu<br>Mk;jh rkC;kr ?ks.;kr vkyh rlsp LVsªpj ojhy jDr<br>nksu ckVY;ke/;s o olksZok 1 eksckbZy e/;s<br>lkBysY;k jDrkph ,d ckVyh uequk Eg.kwu ?ks.;kr | bUDosLV<br>iapukek<br>t[kek<br>rkC;kr<br>?ksrysY;k oLrw<br>eqn~nseky dz- |
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S.Q. Pathan / N.S. Chitnis 425/867
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| vkY;k-<br>oj uewn izek.ks RkkC;kr ?ks.;kr vkysY;k oLrwaph<br>uksan vk;ihlh eqn~nseky uksan dz-148@06 izek.ks<br>?ks.;kr vkysyh vkgs-<br>lnj xqUg;krhy ?kVuk LFkGkoj feGwu vkysY;k<br>fjOgkWyojph vaxqyheqnzk rK Jh- lkoar ;kaP;kdMwu<br>rikl.kh dj.;kr vkyh vlwu R;koj Bls feGwu<br>vkys ukghr-<br>lnj vie`R;w lanHkkZr vie`R;w uksan dz-55@06<br>izek.ks uksan ?ks.;kr vkyh vlwu vkjksihaP;k okjlkapk<br>‘kks/k ?ksÅu R;kauk dGfo.;kph rtfot Bsoysyh<br>vkgs- lnjpk e`rnsg ts-ts-:X.kky; ;sFks<br>ikBfo.;kph rtoht Bsoysyh vkgs- | 148@06<br>vUo;s uksan<br>vie`R;w dz-<br>55@06<br>vUo;s uksan |
|---|
English Translation of Exhibit- 285A reads thus:
| Date | 12/11/2006 Incident | Remarks |
|---|---|---|
| 02:00 | (5) Police Inspector Sankhe, other Officers and<br>constabulary Police Staff, who had proceeded as<br>per the Reference Station Diary Entry Nos.<br>38/06 and 302/06, dated 11.11.2006, have<br>returned to the Police Station and state that<br>panchnama of the Place of the Incident<br>concerned in the Offence bearing C.R. No.<br>302/2006, under Sections 307, 353 of the IPC<br>read with Sections 3, 25, 27 of the Indian Arms<br>Act has been drawn in the presence of two<br>Panch Witnesses and that the articles that were<br>found at the Place of the Incident have been<br>sealed and have been taken into possession as<br>under: | Returned after<br>having drawn<br>panchnama of the<br>Place of the<br>Incident and the<br>Inquest<br>panchnama<br>concerned in the<br>Offence bearing C.<br>R. No. 302/2006,<br>under Sections<br>307, 353 of the<br>IPC. |
S.Q. Pathan / N.S. Chitnis 426/867
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| 1) | One Revolver having engraved thereon as<br>“Made in Japan” on its one side. | Articles taken into<br>possession.<br>Injuries | |
|---|---|---|---|
| 2) | Two live cartridges from the Revolver<br>having thereon a marking KF32S $ WL<br>and a “Hammer” mark at its bottom. | ||
| 3) | Two empty brass cartridges from the<br>Revolver having a marking viz. KF32S $<br>WL and a “Hammer” mark at its bottom. | ||
| 4) | One empty brass cartridge having a<br>marking viz. KF94 9mm 22 thereon,<br>found lying at the place of the incident | ||
| 5) | One bottle containing blood. | ||
| 6) | One bottle containing blood mixed soil. | ||
| 7) | One bottle containing soil. | ||
| Similarly, Inquest panchnama of the dead body<br>of the deceased Accused by name Ramnarayan<br>alias Lakhanbhaiya Vishwanath Gupta,<br>involved in the said offence, has been drawn<br>and following injuries have been noticed on the<br>body of said deceased. | |||
| 1) | A deep injury of the size of half cm.<br>diameter at the centre of the forehead. | ||
| 2) | An injury of the size of half cm. diameter<br>at the internal portion of the right<br>earlobe. | ||
| 3) | An injury of the size of half cm. diameter<br>at the distance of 2 ½” above the right |
S.Q. Pathan / N.S. Chitnis 427/867
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| nipple. | |||
|---|---|---|---|
| 4) | An injury of the size of half cm. diameter<br>at the distance of 2” away from the centre<br>of the chest and by the side of and above<br>the left nipple. | ||
| 5) | An injury of the size of half cm. at a<br>distance of 1” above the said injury. | ||
| 6) | An injury of the size of 1 cm. diameter on<br>the back, on right side near the shoulder-<br>joint. | ||
| 7) | An injury of the size of 1 cm. diameter on<br>the back, on left side near the shoulder-<br>joint. | ||
| Photographs of the said dead body, from<br>various angles, have been got clicked from a<br>private photographer. Similarly, the clothes of<br>the said deceased and the wallet, the cash<br>amount of Rs.920.75 and a telephone diary<br>found therein in his pant-pocket have been<br>taken into possession. Further, the blood spilt<br>on the stretcher has been collected in two<br>bottles and the blood spilt and accumulated in<br>Versova-1 Mobile Van has been collected in<br>one bottle as a sample.<br>(emphasis supplied) | |||
| The entry about the muddemal articles that<br>have been taken into possession as mentioned<br>above has been made in the I.P.C. Muddemal |
S.Q. Pathan / N.S. Chitnis 428/867
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| Register at Entry No. 148/2006. | ||
|---|---|---|
| The revolver that was found at the place of the<br>incident concerned in the said offence has<br>been got examined from the Finger Print<br>Expert by name Shri Sawant, however, no<br>finger-print has been found thereon. | ||
| An entry in respect of the said accidental death<br>has been made as per the Accidental Death<br>Entry No. 55/06 and arrangement has been<br>made to trace the relatives of the said Accused<br>and to intimate them. Further, arrangement<br>has been made to send the said dead body to<br>J.J. Hospital. |
EXHIBIT 299A
| 1 | [kVyk<br>dzekad<br>2 | TkIrhp<br>k<br>fnukad<br>3 | EkkyeRrk<br>4 | ¼TksFks<br>EkkyeRrk<br>Bsoyh<br>r½s<br>vfHkj{kk<br>LFkku<br>5 | foYgsokVh laca/kh ‘ksjk<br>6 |
|---|---|---|---|---|---|
| 148@<br>06<br>iks-fu-<br>la[ks | xqUgk<br>uksan<br>dzekad<br>302@ | Bk.ks<br>nSuanhuh<br>uksan<br>dzekd | jfookj fnukad<br>12@11@06<br>v½ ?kVukLFkGh feGwu<br>vkysY;k oLwrw<br>[kkyhyizek.ks | lsQ<br>LVksvj | Tkk-dz- 6523@06 fn-<br>13@11@2006 vUo;s<br>lh-,-djhrk ikBfoyk- |
S.Q. Pathan / N.S. Chitnis 429/867
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| iks-g-<br>dz-<br>2230<br>8 | 06]<br>dye<br>307]<br>353]<br>Hkknoh<br>lg<br>dye<br>3]25]<br>27]<br>Hkkgdk<br>eqn~nsek<br>y o<br>vgoky<br>vk.kyk | @06<br>fnukad<br>@ @ | 1½ ,d<br>“MADE IN<br>vls ,d<br>JAPAN”<br>cktwl dksjysys fjoksOgj<br>2½ fjOgkyOgj e/khy<br>nksu ftoar dkMrqls<br>R;koj 325<br>KF- $<br>o rGkl gWej<br>WL<br>ekdZ vlysys<br>3½ fjOgkyOgj e/khy<br>nksu fjdkes firGh<br>iqxG;k R;kaP;k<br>rGk’kh 325<br>KF- $<br>vls ekfdZx<br>WL<br>vlwu rGk’kh gWej<br>ekdZ vkgs-<br>4½ ?kVukLFkGh<br>iMysyh ,d<br>fjdkeh firGh iqxGh<br>R;koj 94 -<br>KF- TMM<br>22 vls ekfdZx<br>5½ jDr Hkjysyh ,d<br>ckVyh-<br>6½ ekrh feJhr jDr<br>Hkjysyh ,d ckVyh<br>7½ ekrh Hkjysyh ,d<br>ckVyh<br>c½ bUDosLV<br>iapukE;ke/;s<br>rkC;kr ?ksrysY;k oLrw | tkod dzekad 157@09<br>fn- 19@12@09<br>lnjpk eqn~nseky ek-<br>iksyhl mi vk;qDr fo- |
|---|
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| EX<br>299 A | [kkyhyizek.ks<br>1½ LVsªpjojhy jDr<br>Hkjysyh ckVyh-<br>2½ LVsªpjojhy jDr<br>Hkjysyh nqljh ckVyh<br>3½ djM;k jaxkpk Qqy<br>'kVZ<br>4½ djM;k jaxkph Qqy<br>iWUV<br>5½ lQsn lWMks cfu;ku<br>6½ fuGlj jaxkPkk tWaxk<br>7½ czkmu jaxkPkh cqV<br>tksM<br>8½ czkmu jaxkph ilZ<br>R;ke/;s 100: 9<br>uksVk] 10 :- ,d<br>uksV] 5 :- ,d dkWbZu]<br>2 :- ps nksu dkWbZu]<br>25 iS’kkaph lkr<br>uk.kh] ,dw.k 920-75<br>o ,d VsyhQksu<br>Mk;jh] nksu jsYos<br>frdhV<br>9½ olksZok ou eksckbZy<br>e/;s lkaMysys jDr<br>Hkjysyh ckVyh- | riklh iFkd ef/ky Jh-<br>pkGds ;kaps rkC;kr fn-<br>19@12@09 jksth<br>ns.;kr vkyk- Bk.ks<br>nSufnuh dzekad 20@09<br>lnjpk eqn~nseky tk-zdz-<br>8193@olksZok@09<br>fn-19@12@09 vUo;s<br>ek- iksyhl mi vk;qDr<br>fo- riklh iFkd ef/ky<br>Jh- pkGds ;kaps<br>rkC;kr ns.;kr vkyk- |
|---|
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English translation of Exhibit – 299A reads thus;
| 1 | Case No.<br>2 | Date of<br>Seizure<br>3 | Muddemal<br>4 | Place<br>where<br>Mudde<br>mal is<br>kept<br>5 | Remarks<br>regarding<br>disposal<br>6 |
|---|---|---|---|---|---|
| 148/06<br>P.I.<br>Sankhe<br>P.C.No.<br>22308 | Crime<br>Reg.No.<br>302/06,<br>registere<br>d<br>under<br>sections<br>307, 353<br>of the<br>IPC r/w<br>Sections<br>3,25,27<br>of the<br>Indian<br>Arms<br>Act. | Station<br>Diary<br>Entry<br>No.<br>--/06<br>Date :<br>--/--/----<br>Brought<br>muddem<br>al<br>articles<br>and<br>report. | Sunday, the Date<br>12/11/06<br>A) Articles found at<br>the place of incident<br>are as under :<br>1) One Revolver<br>having engraved<br>thereon as ‘Dankam<br>Pad Shranchand’ at its<br>one side,<br>2) Two live cartridges<br>from the revolver<br>having the marking<br>viz. ‘(unintelligible)<br>325 + (unintelligible)’<br>and having hammer<br>mark at its bottom.<br>3) Two empty brass<br>cartridges from the<br>revolver having the<br>marking viz. | Safe<br>stores | As per letter<br>bearing<br>outward<br>No.6523/06<br>dated<br>13.11.2006,<br>muddemal is<br>sent for C.A. |
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| EXHIBI<br>T<br>299-A | ‘(unintelligible) 325 +<br>(unintelligible)’ and<br>having a hammer<br>mark at its bottom.<br>4) One empty brass<br>cartridge lying at the<br>place of incident<br>having a marking viz.<br>‘(unintelligible)94<br>(Unintelligible) 22’<br>thereon,<br>5) One bottle<br>containing blood<br>6) One bottle<br>containing blood<br>mixed soil<br>7) One bottle<br>containing soil.<br>B) Articles taken in to<br>possession under<br>Inquest panchnama.<br>1) Bottle containing<br>blood from stretcher<br>2) Another bottle<br>containing blood<br>from stretcher<br>3) Grey coloured full<br>sleeves shirt<br>4) Grey coloured full<br>pant | As per outward<br>No. 157/09<br>dated<br>19.12.2009,<br>the said<br>muddemal is<br>handed over in<br>the possession<br>of Shri Chalke<br>from the Sp.<br>Investigation<br>Team of the<br>Deputy<br>Commissioner<br>of Police, on<br>the date<br>19.12.09<br>Station Diary<br>No. 20/09<br>As per outward<br>No. 157/09<br>dated<br>19.12.2009,<br>the said<br>muddemal is<br>handed over in<br>the possession<br>of Shri Chalke |
|---|
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| 5) White ‘SANDO’<br>banian<br>6) Bluish coloured<br>underwear<br>7) A pair of Brown<br>coloured shoes<br>8) Brown coloured<br>purse containing 9<br>currency notes of the<br>denomination of<br>Rs.100/-,<br>one currency note of<br>the denomination of<br>Rs.10/-,<br>one coin of the<br>denomination of<br>Rs.5/-,<br>2 coins of the<br>denomination of<br>Rs.2/-,<br>7 coins of the<br>denomination of paise<br>25/-,<br>Total amount<br>Rs.919/-,<br>one telephone diary,<br>two railway tickets.<br>9) bottle containing<br>blood spilled in and<br>collected from<br>Versova one mobile<br>van. | from the Sp.<br>Investigation<br>Team of the<br>Deputy<br>Commissioner<br>of Police. |
|---|
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(i) The aforesaid discrepancy in Exhibits 285A and
299A would show that someone had planted the railway ticket
receipt in the Muddemal Register, since the station diary entry
Exh.-285 did not mention the railway ticket.
th
(iii) Also in the forwarding letter dated 13
November 2006 of Versova Police Station to FSL in respect of
articles (Exh.-294 and 294A), there is no mention of any railway
ticket.
g. Pool of blood not proportionate to injuries
167 With respect to pool of blood of 1 foot diameter
being found at the spot, it is the prosecution case that the same
was highly impossible and improbable, considering the number of
wounds sustained by the deceased i.e. one on his forehead, one
on his right finger and two on the chest. Admittedly, as seen from
the documents/evidence on record, the pool of blood was only 1
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foot diameter. Considering the nature and place of injuries
sustained i.e. on the temple and the left atrium of heart and aorta
(injury Nos.1 and 4 in the PM report), it is highly improbable
that one would find only a 1 feet diameter pool of blood.
168 In this context, it would be necessary to place on
record the evidence of PW29-Dr. Gajanan Chavan, the doctor
who conducted the post-mortem on the deceased (Ramnarayan).
PW29 in his evidence has stated that he conducted the post-
th
mortem on 12 November 2006, from 00.30 hrs to 1:30 hrs. The
PM Report is at Exh.-237. Column 17 of the PM Report reveals
the following injuries:
a) Firearm entry wound over centre of forehead of size
0.8 cm circular inverted margins with 0.1 cm abrasion collar
situated 5 cm above nasion (joining portion of upper portion
of nose and forehead) and 15 cm from right ear lobule. No
evidence of tattooing, singeing, burning, blackening seen.
On dissection, bullet passed through skin, subcutaneous
tissue, frontal bone with punched in appearance directed
backwards and to right side and passed through right frontal
lobe and lodged in right temporal lobe. One deformed bullet
was retrieved from there. All the track was lacerated and
haemorrhagic
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b) Firearm entry wound over right ear pinna of size 0.8
cm diameter, nearly circular inverted irregular margins with
abrasion collar at places. No evidence of tattooing, singeing.
burning, blackening seen. On dissection, bullet passed
through skin, cartilage of ear, temporal bone with punched
in 15 appearance, temporal lobe right and lodged in right
occipital lobe. One deformed bullet was retrieved from
there. All the track was lacerated and haemorrhagic.
c) Firearm entry wound over right side of chest
anteriorly of size 0.8 cm circular inverted margins with 0.1
cm abrasion collar situated 10 cm from midline and 7 cm
below clavicle and 6 cm above nipple. No evidence of
tattooing, singeing, burning, blackening seen. On dissection,
bullet passed through skin, subcutaneous tissue, third
intercostal muscle through middle and lower lobes of right
lung and passed out through third intercostal space
posteriorly over back through firearm exit wound of size 1
cm diameter everted margins situated 135 m below shoulder
and 9 cm from midline. All the track was lacerated and
haemorrhagic.
d) Firearm entry wound over left anterior chest of size
0.7 cm diameter circular inverted margins with 1 cm
abrasion collar situated 4 cm from midline and 8 cm below
left clavicle. No evidence of tattooing, singeing, burning,
blackening seen. On dissection, bullet passed backwards
through skin, subcutaneous tissue, third intercostal muscles
through left atrium in anterio posterior direction,
descending aorta and lodged in paraspinal muscles of left
side. One intact bullet retrieved from there. All the track was
lacerated and haemorrhagic.
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e) Firearm entry wound over left side of chest of size
0.8 cm diameter circular inverted margins with 0.1 cm
abrasion collar situated 5 cm from midline and 10 cm below
clavicle. No evidence of tattooing, singeing, burning,
blackening seen. On dissection, bullet passed through skin,
subcutaneous tissue, fourth intercostal muscles through
lower lobes of left hung directed posteriorly and passed out
through fourth intercostal muscles of back through firearm
exit wound situated over left back of size 1 cm diameter
everted margins situated 14.5 cm from midline and 15 cm
below left shoulder. All the track was lacerated and
haemorrhagic.
169 In the PM report, the cause of death is stated to be
“Haemorrhage and Shock due to multiple firearm injuries. (Un-
natural)”
170 PW29 found that 500 CC of blood in each pleural
cavity of thorax; right lung middle and lower lobe were found
lacerated and haemorrhage in the track; left lung lower lobe was
found lacerated and haemorrhage in the track and about 500
CC clotted blood was seen in pericardial cavity. The left atrium
was found to be ruptured. The details of the injuries were stated
on separate sheets. PW29 has also deposed to what was noticed
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by him in detail with respect to internal examination.
170.1 PW29 has stated that all the 5 injuries are individually
and collectively sufficient to cause death of a person in normal
course. He has further deposed that Injury Nos.1, 2 and 4 in
Exh.-237 would cause sudden instantaneous death. He has
further stated that Injury No.4 was relating to left atrium of heart
and aorta would lead to profuse bleeding out of all injuries and
that the other injuries would be bleeding injuries, but less in
intensity than injury No.4. He has further deposed that in case of
Injury Nos.1, 2 and 4, sudden shock would result and being
injuries to vital organs, the person would not be upright and may
collapse.
170.2 Although, the said witness was cross-examined on the
nature of injuries sustained by the deceased, nothing material is
brought on record, so as to disbelieve PW29’s testimony.
171 Thus, having regard to the nature of injuries sustained
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by Ramnarayan and the evidence that has come on record, it is
highly improbable that there would be only 1 pool of blood of
around 1 foot diameter. No droplets were also seen, since
deceased was allegedly taken in a vehicle nor any blood stained
clothes of the persons who carried Ramnarayan, seized.
h. Map of Nana Nani Park falsifies the case of a genuine
encounter
172 The map as reproduced herein-above and which is
not disputed by any of the parties, crystalises the two spots where
Group-1 and Group-2 were waiting and the positions taken by
them i.e. one opposite Magnum Building and one at the Trishul
Building end. These are the positions taken by A9 and his team
members as per C.R. No. 302/2006. If from the said two spots as
alleged, the deceased was fired at, it would be highly improbable
and impossible for the deceased to sustain the said wounds. The
ballistic report of PW86-Gautam Ghadge also falsifies the firing
by some of the appellants/accused from a distance of around 40
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feet, as alleged in C.R. No. 302/2006. (A9 is the first informant
of CR No. 302/2006).
173 According to the ballistic report, the firing was done
at a distance of around 2 feet. According to A9, Group-1
consisted of himself, A11, A13, A19, A16 and A18, who were
positioned at Magnum Opus building end. According to A9, he
fired 2 rounds and A11 one round.
174 According to A9, Group-2 consisted of A2, A3, A15,
A17, A20 and A22 and the said group was positioned at the
Trishul Building end. According to A9, A22 and A15 fired from
the said end at the deceased.
175 Between the position of Group-1 and Group-2, there
is a road on which regular traffic moves and the deceased was
across the said road and after being shot at from across the road
(40 feet distance), he fell near an electric pole being KVV
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13/0.61. From the ballistic expert's report and the map relied
upon by A9, it becomes evident that it was highly impossible to
fire at the deceased from the positions as alleged by A9 and by
some of the appellants/accused, more particularly, when there was
a road between them and the deceased, on which, there is usually
heavy regular traffic, without endangering the lives of people on
the road.
176 Although, according to A9 and CR No.302/2006, A9,
A11, A15 and A22 fired at the deceased, it is the prosecution case
that the said claim as far as A11 and A22 are concerned, is false
and the same is evident from the ballistic expert's report i.e.
PW86. During the course of trial, after receipt of the ballistic
report, both, A11 and A22 challenged the taking of weapon from
the Arms Division and also of surrendering one round less after
the alleged encounter. However, the ballistic expert's report
which is at Exh.-658 shows that the empty found on the spot
matched with Article-23 i.e. weapon of A2 and not with the
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weapon of A11. Similarly, the empty produced by A22 matched
with Article-69, weapon of OA1, who was not shown as a
member of the encounter team. The ballistic report and the
evidence of PW86 clearly shows that the bullets were fired by A2
and OA1 from their weapons and not by A11 and A22, as alleged
by A9 (C.R.No.302/2006).
(ix) Distance of Firing
177 According to A9, the complainant in C.R.
No.302/2006, the incident of firing took place at Nana Nani Park
from a distance of about 40 feet across the road. In this
connection A9 has annexed a map to the additional affidavit,
which we have reproduced earlier. Whereas, according to the
ballistic expert’s report and evidence, the bullets were fired at a
distance of about 2 meters. The same is borne out by the
evidence of ballistic expert as well as the ballistic report, which is
at Exh.-658 (colly). Thus, the ballistic expert report and the
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evidence reveal that the firing was done at the distance of about 2
meters and not as alleged by A9 in C.R. No.302/2006. We will
deal with the same in detail, while considering the ballistic expert
evidence.
i. Empty found near Magnum Opus
178 As far as empty (Exh.-114) from A2’s weapon found
near Magnum Opus Building is concerned, the finding of the said
empty would demolish the theory of the appellants/accused that it
was a genuine encounter. We have already mentioned the accused
who were part of Group-1 and Group-2, as per C.R. No.
302/2006, the earlier part. According to the spot panchnama,
one empty was found near Magnum Opus Building. It appears
from the Ballistic Expert’s Report that the empty found on the
spot near Magnum Opus Building fired from A2’s weapon i.e.
one 9mm calibre pistol auto, having body No. 15179116, Butt
No. 786, (Exh. 7), belonged to A2 (Exh.-114 is the said empty).
The analysis/report of the ballistic expert shows that Exh.-14 i.e.
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empty was fired from Exh.-7 (weapon). According to C.R No.
302/2006, A2 was at Trishul Building in Group-2, whereas
according to the spot panchnama, the empty was found near
Magnum Opus Building, completely on the opposite side. We
may note, that if A2 was opposite Trishul Building, the empty
should have been found near Trishul Building and not near
Magnum Opus Building. The same further fortifies the falsity of
the FIR lodged by A9.
179 In the Ballistic Report at Exh.-1, Column 5, it is
stated that one brass empty having mark KF 94 9MM 92 was
seized from the place of incident. In the entry at Exh.-656 i.e.
th
original letter dated 19 December 2009 sent by DCP, SIT,
Mumbai, to the C.A, Mumbai, it is mentioned as KF-9MM-2z-94.
According to the ballistic examination report (Exh.-658), Exh.-7
i.e. A2's weapon and Exh.-14 i.e. one 9mm pistol empty having
indentation on the cap and head stamp markings KF 9mm 2Z 94,
th
as also in Exh.-251, which is the earlier report dated 18 August
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2007, the empty is mentioned as KF 9mm 2z 94. Similarly, in
Exh.-299A, the empty in Muddemal Register, it is mentioned as
KF 94 9mm 2Z. The aforesaid documents would go to show that
the empty found at the spot was not replaced with another empty,
whilst sending it to FSL for examination.
j. Defence Witness
180 It is the prosecution case that a false story of
contacting passers-by and Western Control Room for help to
carry the deceased, was also created by the appellants/accused to
support their case of a genuine encounter. According to the
prosecution, there are no eye-witnesses to the alleged encounter,
inasmuch as, no such encounter had taken place as alleged. It is
the prosecution case, that the appellants/accused planted DW1-
Manohar Kulpe as a witness, to show his presence at the spot,
with a view to create evidence. It is submitted by the learned
Spl.P.P that even if the evidence of DW1 is perused, his evidence
lacks credibility, making him an unreliable witness.
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181 DW1-Manohar Kulpe has in fact contradicted the
encounter theory. DW1 was examined by A7 as a defence
th
witness. DW1 has, in his evidence, stated that on 11
November 2006, in the evening he was proceeding to his
residence at Santacruz to meet his friend at Yari Road; that when
he was near the Nana Nani Park at about 20:00 to 20:15 hrs. he
heard noise, like that of fire crackers; that he stopped his vehicle
to the left of the road; that he saw one person holding a gun in
his hand under the street light pole and saw him falling
backwards; that the street light as well as the head lights of his
vehicle were on; that he saw some persons rushing towards the
said person from his right side; that one of the person came to
him and told that they were police personnel and that one person
has to be taken to the hospital; that he told the said person that
he did not want to get involved in the matter; that the said person
asked him his name and landline number; that pursuant thereto,
he took a U-turn and proceeded to his home; that when he
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reached home at about 21:15 hrs. he watched on T.V that there
was an encounter at Nana Nani Park.
th
181.1 That on 12 November 2006, Sankhe (PW39) from
Versova Police Station called him to the said police station; that
he received a call on his landline number; that when he reached
the police station, Mr. Sankhe asked him his name and address
th
and made inquiry with him with respect to the incident dated 11
November 2006 and accordingly, recorded his statement; that
again in 2007, he received a letter from the Collector Officer,
pursuant to which his statement was again recorded; that in 2009,
he received two summons from the Railway Mobile Court,
Andheri, pursuant to which his statements were recorded; that he
received a summon from SIT, pursuant to which his statement
th
was recorded again, with respect to the incident of 11
November 2006. The said witness has identified the statement
rd
made before the Magistrate dated 23 December 2009, as
incorrect.
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181.2 The said witness was extensively cross-examined by
the learned Spl. PP with respect to the license of the tourist
permit, since he was plying his vehicle as a Tourist Vehicle, to
which he replied that he did not have a tourist permit; that the
booking of the vehicle would be done on the mobile
XXXXXX7724 which stood in the name of his son. He has
stated that he would use the said mobile of his son for booking of
the vehicle, however, on the day of the incident, he had not
carried the mobile. He has stated that the general public would
book his vehicle and that he used to travel to Ratnagiri,
Sawantwadi and several areas from Konkan. The said witness
although questioned that he had visited Saperli in Khed with A15
on several occasions, has denied the said suggestion. He has
stated that if one wants to go to Nana Nani Park, one has to take
a left turn to Juhu–Versova Link Road; that Nana Nani Park has a
length of 300 meters; that there are two roads on two sides of
Nana Nani Park; that it is correct to state that there was always
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two-way traffic at Juhu, Versova Link Road in the year 2006; as
well as two way traffic on the road running to the right of Nana
Nani Park; that it was correct to state that there is always heavy
traffic after office hours and on the weekend along side Nana
Nani Park. The said witness has denied his association with A15-
Dilip Palande. He has stated that he does not remember that
there was any vehicle behind and around his vehicle when he was
near Juhu–Versova Link Road near Nana Nani Park.
181.3 DW1, in his cross-examination has further stated that
he does not remember as to whether those 5 to 6 persons had
weapons in their hands. He has admitted in his cross that those 5
to 6 persons went by his right side, at a distance of 20 ft. from his
vehicle. He has further admitted that though headlights of his
vehicle were on, he did not see any weapon in the hands of those
5 to 6 persons. He has further admitted in his cross that he did
not see the pool of blood, where the person had fallen down.
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181.4 It is pertinent to note that there is material omission
with respect to what DW1 has stated in his examination-in-chief
i.e. “I saw one person holding a gun in his hand, under the street
light pole and saw him falling backwards” with respect to the
th
statement recorded on 12 November 2009. The omission is
with respect to the words “holding a gun in his hand” and
“backwards”. There is also an omission in the statement dated
th
12 November 2006, with respect to having witnessed the
incident in the street light as well as the head lights of the vehicle.
Similarly, there are several other omissions.
182 Certain omissions recorded in the evidence of DW1
were brought on record through PW39, since he had recorded
the statement of DW1-Manohar Kulpe.
183 Thus, from the evidence as stated aforesaid and the
evidence that has already come on record, we find it difficult to
place any reliance, much less, implicit reliance on this witness.
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The said witness appears to be a completely got-up witness
planted by the appellants-accused in support of their case of a
genuine encounter. We have already set out the reasons in detail,
for holding that no such encounter as alleged by the prosecution
had taken place.
184 Keeping in mind, from the evidence that has come on
record, as discussed herein-above, we find that the prosecution
has proved beyond reasonable doubt, that Ramnarayan was
killed brutally in cold blood by the accused, when he was in their
custody and that to cover up the same, given it a colour of a
genuine encounter. All circumstances and evidence adduced by
the prosecution clearly points to their complicity and leaves
absolutely no room for doubt, the possibility of it being a genuine
encounter. As noted by us earlier, once the prosecution had
successfully proved that Ramnarayan and Anil Bheda were
abducted by the accused, the onus shifted on the accused, to
prove to the contrary. However, the prosecution on its own
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steam and merit has also proved that Ramnarayan was killed by
the police, by trigger happy cops, and the same was made to look
like a genuine encounter.
185 The said evidence that Ramnarayan was killed, is also
borne out by the Ballistic Evidence. The said evidence will reveal
that the deceased was shot at a distance of about 2 feet, whereas,
according to C.R. No.302/2006, the distance would be around 40
feet. Thus, we now proceed to consider the next circumstance
relied upon by the prosecution i.e. Ballistic/Forensic Evidence.
iv. BALLISTIC EVIDENCE/FORENSIC EVIDENCE
a. Weapon History
186 Each weapon allotted to the accused can be separately
identified by the butt number and the manufacturing number of
the weapon. A weapon history register is maintained in the
Magazine Section, where there is a separate sheet for each and
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every weapon. The weapons allotted to the accused, with which
we are concerned, are as under:
OA1 – Butt no. 347 (Exh. 8)
A2 – Butt no. 786 (Exh. 7)
A9 – Butt no. 475 (Exh. 1)
A11 – Butt no. 2912 (Exh. 5)
A15 – Butt no. 624 (Exh. 4)
A18 – Butt no. 294 (Exh. 3)
A22 – Butt no. 468 (Exh. 2)
187 The prosecution, in support of the same, has
examined four witnesses i.e. PW22-Vishnu Khatal, District
Hawaldar attached to D.N. Nagar Police Station; PW23-Shavaka
Tadvi, District Hawaldar attached to D.N. Nagar Police Station;
PW17-Hanumant Kambli, Police Hawaldar attached to Versova
Police Station; and PW19-Jyotiram Phasale, District Hawaldar
attached to Versova Police Station.
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b. Allotment and Deposit of Arms and Ammunition in C.R.
No. 302/2006
As far as allotment of arms and ammunition is
concerned the following witnesses were examined;
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188 PW17-Hanumant Kambli has deposed that on 11
November 2006, Nitin Sartape (A11) asked him to allot him a
pistol, pursuant to which, he handed over one pistol i.e. (Butt No.
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2912 and 6 rounds of ammunition), to A11, on 11 November
2006. The said witness has produced the relevant station diary
entry made in support thereof i.e. Exh.-197. Admittedly, A11
does not dispute issuance of a revolver and six rounds to him, by
PW17.
189 PW22-Vishnu Khatal was attached to D.N. Nagar
Police Station as District Hawaldar at the relevant time. He has
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stated that he made station diary entries in his own handwriting
in the Register marked as Exhibits 216, 217, 218 and 219. He has
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stated that on 11 November 2006 at 6:00 hrs, he handed over 1
revolver bearing Butt No. 475 and 6 rounds to A9; and 1 revolver
bearing Butt No. 468 and 5 rounds to API Sarvankar (A22); 1
revolver bearing Butt No.624 and 6 rounds to Palande (A15) and
1 revolver bearing Butt No. 294 and 6 ammunition to Patade
(A18). Admittedly, A9 does not dispute issuance of a revolver and
6 rounds to him, by PW22-Vishnu Khatal. It appears from the
evidence of this witness that all the three appellants/accused i.e.
A9, A15 and A18 have signed having received weapons and
rounds, however, inadvertently, the signature of A22 was not
taken. The said witness has produced the entries made in the
station diary (Exh. 218-A and Exh. 219-A respectively).
It is pertinent to note, only A22 has denied taking
arms. Rest have not denied taking arms and ammunition.
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190 As far as deposit of arms and ammunition in the very
said C.R. are concerned, the same are stated to have been
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deposited on 12 November 2006, the details are as under:
191 PW23-Shavaka Tadvi, who was attached to D.N.
Nagar Police Station, at the relevant time, has deposed that A9
surrendered 4 rounds and that 2 rounds were less. The reason
given was that an encounter had taken place within the limits of
Versova Police Station, in which, 2 rounds were fired. A9
surrendered the weapon and 4 rounds at D.N. Nagar Police
Station and accordingly, there is an entry made in the station
diary at Exh. 221-A. PW23 has further stated that A9 produced 2
bullet shells (Article 46 Colly.) which were seized and sealed
under a panchnama (Exh. 279) by Mohandas Sankhe (PW39), on
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12 November 2006.
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191.1 PW23 has further deposed that on 12 November
2006, A22 surrendered 4 rounds and that there was 1 round less.
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The reason given was that an encounter had taken place within
the limits of Versova Police Station and one round was fired. The
said surrender of bullets is recorded in the station diary entry
which is at Exh.-222, the relevant entry being marked in red ink
(Exh.-217).
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191.2 According to PW23, on 12 November 2006, A15
surrendered 5 rounds i.e. 1 round less. The reason being that an
encounter had taken place within the limits of Versova Police
Station and that one round was fired in the said encounter. The
said entry was made in station diary Exh.-223 and relevant entry
was marked as Exh.-280 in red ink.
191.3 PW23 has further deposed that A18 also surrendered
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6 rounds on 12 November 2006 and no round was found less.
The said entry is at Exh. 224-A.
191.4 PW17-Hanumant Kambli was attached to Versova
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Police Station at the relevant time, as Police Hawaldar. He has
stated that A11 asked him to allot him a pistol. Accordingly, he
handed over one pistol and 6 rounds to A11 and that A11 signed
on the Register marked as Exh.-197, copy of the same is marked
as Exh. 197A. He has identified the said entry as being in his
handwriting. Although it is suggested to PW17 that he did not
allot any weapon to A11, the said witness has denied the said
suggestion. Infact, A11 in his 313 (Question No.109 has
accepted the said evidence of PW17 with respect to handing over
the weapon to him.
192 PW19-Jyotiram Phasale was attached to Versova
Police Station as District Hawaldar at the relevant time. He has
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deposed that at about 22:00 hrs. on 11 November 2006, A11
deposited pistol Butt No. 2912 and 5 rounds (one round less)
with him i.e. at Versova Police Station. PW19 has stated that
A11, on inquiry, had informed him that one round was fired in
Versova C.R No. 302/2006 relating to an encounter; that there is
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an entry in the station diary when weapons are allotted; that an
entry regarding deposit/return of one pistol and 5 rounds was
made at Exh. 202, but there are no counter signatures thereon.
(A11 refused to answer the said question No. 111 in his 313
statement (Exh.-932).
193 As per C.R No. 302/2006, A9 fired 2 bullets; A11 - 1
Bullet; A15 – 1 bullet; and A22 - 1 bullet. However, the FSL
report shows that the bullet fired from A11 was infact fired from
A2’s weapon and the bullet fired from A22’s weapon is stated to
have been fired from OA1’s weapon.
(It may be noted that no weapons were sent to FSL in C.R.
No. 302/2006 and came to be sent only after registration of the
present CR).
194 Three bullets were retrieved from the body of
Ramnarayan. The FSL report shows that one bullet was fired
from OA1’s weapon; one from A9’s weapon and one from A15’s
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weapon. It appears that only after the FSL report was received
that A11 and A22 disputed firing on the deceased or of taking the
weapons.
195 The evidence of PW23-Shavaka Tadvi attached to the
D.N. Nagar Police Station, District Hawaldar revealed that on
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12 November 2006, he received arms from A9, A15, A18 and
A22. The said witness has given details of the arms received i.e.
Exhibits 216 to 219 and Exh. 221. There is no cross whatsoever
on the same or on para 3, wherein, it is stated that less rounds
were produced by the said accused.
c. Investigation vis-a-vis the weapons
PW60 - Maruti Y Patil
196 PW60-Maruti Patil was attached to the Magazine
Section at Naigaon Armory Depot at the relevant time. He has
deposed with respect to giving and handing over of weapons and
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seizure of weapons by SIT. He has stated that there is a weapon
history register maintained in Magazine Section, where entry of
arms and ammunition allotted to police stations/police
officers/police personnel as well as arms and ammunition
deposited by police stations/police officers/police personnel is
taken down. He has further stated that there is a separate sheet
for each and every weapon and a particular weapon can be
identified by its butt number and the manufacturing number of
the weapon. He has further stated that the rounds are
accepted/deposited and that even if one round is less, the same is
to be accounted for. He has given history of the weapons of
OA1, A2, A9, A11, A15, A18 and A22. According to PW60,
OA1, A2 and A15 had got weapons allotted in their own names.
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He has stated that Butt No.786 was with A2 on 11 November
2006 and that the said weapon was with A2 from 2004 to 2009.
It appears from the FSL report that A2 fired from his weapon.
196.1 It also appears that A11 has denied firing only on
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receipt of the FSL report, though the FIR i.e. C.R. No.302/2006,
lodged by A9 says that A11 fired at the deceased. From the FSL
report and the evidence of PW86, it appears that A11’s bullet was
used by A2 in his weapon and therefore, A2’s rounds were intact,
whereas, A11 deposited 29 bullets instead of 30 bullets.
According to the prosecution, A11 took 30 bullets but deposited
29, as one was used in C.R. No.302/2006, whereas A2 took 30
bullets and deposited 30. It appears that A2 took 1 round from
A11 and shot from his (A2’s) weapon.
196.2 According to PW60, the weapons were given to PI
Gaonkar (PW109) in connection with the present C.R. He has
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stated that A15 was given weapon (Butt No.624) on 5
November 1998 and A22 (Butt No.468). He submitted that
each Butt number has a history and as such the history assumes
importance since it discloses utilization of the said weapon, with
whom the custody of the weapon is, and whether any firing is
done from the said weapon. From the evidence of PW60, it
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appears that the weapon used by A22 i.e. Butt No.468 was with
the D.N. Nagar Police Station; that A22 took his weapon and 5
bullets from D.N. Nagar Police Station and returned 4 bullets;
that the empty was returned by A22 after he allegedly firing. The
FSL report (Exh. 658 colly) shows that the said empty returned
by A22 was fired from OA1’s weapon. A9’s butt history is set out
in Butt No.475 and OA1’s butt history is set out in Butt No.347.
From a perusal of the Butt History of OA1’s weapon, it appears
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that on 30 August 2022, OA1 was dismissed from service and
was asked to deposit his weapon with Dharavi Police Station.
Accordingly, OA1 deposited the said weapon with PW56. The
said weapon was deposited by OA1 with Dharavi Police Station
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on 12 December 2009. Exh. 491A gives the description of the
weapon and 6 rounds submitted by OA1. PW60 has stated the
rounds given every year. According to A2, he submitted 30
rounds, hence according to him he could not have fired. A letter
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dated 5 December 2009 (Exh. – 493) bearing signature of Senior
P.I. of Arms and Ammunition Branch, for getting live bullets to
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match the empties fired from revolver (Butt No.786) of A2, was
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sent. A letter dated 4 December 2009 was also sent with respect
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to OA1’s weapon (Exh. 495). It appears from the letter dated 9
December 2009 marked as Exh. 496 (colly) that the weapon and
ammunition were collected from Naigaon and the weapons were
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accepted on 10 December 2009.
PW66 – Shabbir Mehaboob Sayyad
197 PW66-Shabbir Sayyad was attached to the Magazine
Section, Armory Division, Naigaon. In para 3 of his evidence, he
has given how weapon history register is maintained; how he
handed over pistol i.e. Pistol Butt No.2912 of 2011 (weapon used
by A11) and Butt No.624 (weapon used by A15), to PSI–Billare,
Versova Police Station. In paragraphs 15 to 17 of his evidence, he
has stated that he had handed over revolver and 30 rounds to
OA1.
PW67 – Manoj Desai:
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198 PW67 – Manoj Desai, was attached to Magazine
Section, Armory Division, Naigaon, at the relevant time i.e.
during the period 2002 to 2005. He has stated that he gave
weapons to D.N. Nagar Police i.e. Butt No. 468 (which was used
by A22); Butt No.475 (which was used by A9) and Butt No.294
(used by A18). As far as Butt Nos. 468 and 475 used by A22 and
A9 are concerned, it is alleged that the said weapons were fired
from. As far as Butt No. 294 used by A18 is concerned, the said
weapon was not fired from. According to PW61, OA1 had
deposited a .38 T.T. Revolver, Butt No.700 and had taken Butt
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No.347 on 24 December 2001.
PW80 – Pravin Baliram Bhosale
199 PW80-Pravin Bhosale was attached to the Magazine
Section, Armory Naigaon, at the relevant time. The said witness
was examined to prove the allotment of pistol i.e. Butt No.786 to
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A2 with 30 rounds.
PW98 – Sandeep Ganpatrao Dal:
200 PW98-Sandeep Dal was attached to the Armory
Section, Naigaon, as Senior P.I. at the relevant time. The said
witness has produced the original copies of the register sought by
SIT, pursuant to a letter addressed by them in the present C.R. He
has stated that empties of revolver and pistol were also handed
over to SIT. He has also proved the correspondence exchanged
between SIT and the concerned department. The said witness i.e.
PW98 has proved letter (Exh.-714) sent by K.M.M. Prasanna, Dy.
CP to the Addl. CP, Armed Police Force, Naigaon and letter
(Exh.-715) sent by Sr.PI (Armory), Naigaon to the Addl.CP,
Armed Police Force, Naigon, Mumbai, regarding getting
information about the firearms for the purpose of investigation in
CR No.246/2009.
PW28 – Bapurao Sangappa Fulare
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201 PW28-Bapurao Fulare was examined by the
prosecution, being a panch to the seizure of arms from Naigaon
Division with respect to the arms of A2, A9, A11, A15, A18 and
A22. The said witness has also spoken about the ammunition
provided of the same batch as the empty. The said panchnama is
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dated 10 December 2019 being Exh. – 232, with respect to the
seizure of 7 weapons.
PW34 – Shamsuddin Mohd. Yunus Ansari
202 PW34-Shamsuddin Ansari, another panch, was
examined by the prosecution with respect to collection of the
weapon of OA1 from Naigaon and the seizure of the said weapon
i.e. panchnama (Exh. 261).
203 With respect to seizure of arms and ammunition and
other investigation carried out, the prosecution examined 4
witnesses i.e. the Investigating Officers - PW107, PW108, PW109
and PW110.
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PW107 – Manoj Laxman Chalke
204 PW107-Manoj Chalke is one of the Investigating
Officer. He has deposed with respect to sealing of weapons i.e. 4
revolvers and 3 pistols; with respect to the Muddemal Register at
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Versova Police Station; with respect to arrest of OA1 on 7
January 2010. The said witness was cross-examined with respect
to the statement of Anil Bheda being recorded by SIT for the first
rd
time on 3 September 2009; the statement recorded of
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Gangadhar Sawant, Fingerprint expert on 27 October 2009 and
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the First Report dated 12 November 2006 given by the said
Fingerprint Expert at the spot; with respect to Railway Ticket etc.
PW108 – Vinay Baburao Ghorpade
205 PW108-Vinay Ghorpade, another Investigating
Officer was examined to show that he had recorded PW1’s
complaint i.e. FIR being Exh. – 121, pursuant to which, C.R.
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No.246/2009 was registered for production of faxes and
telegrams, sketch of the spot. The said witness had taken Anil
Bheda to Andheri Court to have his statement recorded; arrested
Tanaji Desai (A2), Shailendra Pandey @ Pinky (A4), Hitesh
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Solanki @ Dhabbu (A5) and Akhil Khan @ Bobby (A6) on 7
November 2011; had taken the articles to the FSL Kalina; had
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arrested Sunil Solanki (A10) on 9 March 2010; had visited
Trisha Collections and prepared a running panchnama (Exh. 753)
as disclosed by Anil Bheda to him i.e. from the time of abduction
till he was taken to D.N. Nagar Police Station; sealing of 6 rounds
of a revolver which were in the name of OA1, from Dharavi
Police Station etc.
206 PW107 and PW108 were cross-examined at length.
The said officers stood their ground and as such, there is nothing
in their testimony to disbelieve the investigation carried out by
them.
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PW109 – Sunil Sahadev Gaonkar
207 PW109-Sunil Gaonkar, another Investigating Officer
has also deposed with respect to the investigation carried out by
him.
PW110 – K.M.M. Prasanna
208 The head of the SIT– K.M.M. Prasanna was examined
by the prosecution as PW110. He had deposed with respect to
the letters addressed by SIT to various authorities; with respect to
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SIT’s letter to Versova Police Station dated 4 November 2011
(Exh. 840 seeking information of Arms and Ammunition), reply
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received from the Versova Police Station dated 6 November
2009 (Exh. – 841).
208.1 PW110 has in his evidence deposed that default
report was made against PW39 for preparing false spot
panchnama in C.R. No. 302/2006. He has further deposed about
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the actions taken against the then ACP Suryawanshi, D.N. Nagar
Division (brother of A9) and Avdhoot Chavan, the then PI, D.N.
Nagar Police Station. He has deposed that Avdhoot Chavan, on
the instructions of the then ACP Suryawanshi, had prepared three
letters with the assistance of his writer in his office, addressed to
the Chief Metropolitan Magistrate, Mumbai, seeking orders to
record the statements of some witnesses in Versova Police Station
in CR No.302/2006 and had signed the said letters on behalf of
the then Sr.PI of D.N. Nagar Police Station.
d. Movements of Weapons, Arms and Ammunition
209 At this stage, it will be apposite to place on record the
movement of weapons, arms and ammunition. According to
PW39- PI Mohandas Sankhe, during the course of investigation
of C.R No. 302/2006, he seized, labelled and sealed 2 empties
(Article 46) produced by A9. The station diary entry is at Exh.
282 and the panchnama of empties is at Exh. 279. It also appears
that during the investigation of the said C.R, PW39 seized,
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labelled and sealed 9 mm empty (Article 57 Colly.). The station
diary entry is at Exh. 287 and panchnama of the empty is at Exh.
86.
210 It further appears that PW39 also seized, labelled and
sealed 1 empty (Article 63 Colly.) in C.R.No. 302/2006, which
was produced by Arvind Sarvankar (A22). The station diary entry
to that effect is at Exh. 287 and panchnama of the empty is at
Exh. 286. It also appears that in the very same C.R, PW39 seized,
labelled and sealed 1 empty (Article 60 Colly.) produced by A15.
The station diary entry is at Exh. 287 and panchnama of the
empty is at Exh. 286.
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211 According to PW71, Dattatray Koyte, on 12
November 2006, at the request of PW39, he acted as a panch to
the deposition of empty cartridges produced by A15 and A22.
The articles are Article 60 and Article 63 respectively and the
panchnama is at Exh. 286.
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212 According to PW11-Dr. Sunil Shinde, Casualty
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Medical Officer working at Cooper Hospital, on 11 November
2016, he was working in night shift since 20:00 hrs, which ended
on the next day at 8:00 hrs. PW11 has deposed that the police
brought a patient involved in a medico legal case i.e. Ramnarayan
Gupta was brought to Casualty by PC No. 970043 of Versova
Police Station. There is an entry in the original MLC Register of
Cooper Hospital, which is exhibited through this witness and the
same is at Exh. 174 and 174-A. According to PW11, said entry
was made in the MLC Register No. 45/2006 at serial No. 22278
on page No. 139. He has stated that on examination, the patient
was found to be dead. PW11 noticed 6 injuries on the said
patient.
“ 1. Circular puncture wound about 1 cm over forehead,
fresh in nature
2. Circular puncture wound about 1 cm over right anterior
chest, fourth inter costal space, above nipple, fresh in nature
3. Circular puncture wound about 1 cm in left anterior
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chest, second inter costal space, fresh in nature
4. Circular puncture wound about 1 cm in left fourth inter
costal space, anteriorly, fresh in nature
5. Circular puncture exit wound, over right third inter
costal space, posteriorly, fresh in nature
6. Circular puncture wound about 1 cm posteriorly, over
left body of scapula, fresh in nature.”
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213 According to PW29-Dr. Gajanan Chavan, on 12
November 2006, he along with Dr. S. M. Chavan, conducted
post-mortem on the dead body (Ramnarayan Gupta), which was
sent by PSI Jadhav of Versova Police Station and brought by PC
960428. The post-mortem report was exhibited as Exh. 237.
PW29 has stated that at the time of post-mortem, he retrieved 3
bullets from the body of the deceased; that he collected 2 bottles
containing blood; 2 bottles containing water-like liquid and 1
bottle containing 3 bullets. He has stated that he handed over 4
forms to be given to the Chemical Analyser, FSL to Mr. Kailas
Devrao Ekilwale (PW21). The said witness has identified the 4
forms handed over by him, which have been exhibited as
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Exhibits 211 (blood form), 212 (blood form), 213 (hand wash
form) and 214 (bullet form).
214 It thus appears from the aforesaid evidence that the
prosecution has duly proved the movement of weapons; of arms
and ammunition and seizure of articles.
e. Link evidence and Ballistic Expert’s Evidence
PW29 - Dr Gajanan Shejrao Chavan -
215 PW29-Dr. Gajanan Chavan was working in J.J.
Hospital since December 1998. He has deposed that as a part of
his duty, he also worked in the J.J. Post-mortem centre attached
to the J.J. hospital; that on 12th November 2006, while he was
on duty, one dead body of Ramnarayan Vishwanath Gupta was
sent by PSI Jadhav of Versova PS and was brought by PC 960428
along with panchnama and ADR form and documents; that he
had conducted Post-mortem of said body from 00:30 hrs. to 1:30
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hrs.
215.1 He has further deposed that hand-wash for ballistic
examination was preserved; that the three bullets retrieved were
also forwarded to FSL and all the five injuries were ante mortem
in nature and were fresh; that the blood, hand-wash liquid and
bullets were collected in proper containers and the same were
labeled and sealed and forwarded with appropriate forms to the
FSL through police. He deposed that the said three bullets
marked as Article 30/1 to 30/3 were sent to the FSL in a glass
bottle and the said bottle was sealed after affixing string; that the
bottle marked as Article 29 bears label in his handwriting and his
signature, noting that the bottle contains 3 bullets.
PW21 - Kailas Devrao Ekilwale
216 PW21-Kailas Ekilwale was deputed at Versova Police
Station since November 2006. In November 2006, he was
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assigned duty of primary investigation. He has deposed that on
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12 November 2006, he was handed over 5 sealed bottles by
PW29-Dr. Gajanan Shejrao Chavan i.e. 2 bottles containing
blood, 2 bottles containing water like liquid and 1 bottle
containing 3 bullets. He has further deposed that four forms were
handed over to him, to be given to the Chemical Analyser, FSL
and his signatures were obtained on the copies of the forms, as
acknowledgment thereof. He has stated that he signed the said
forms in acknowledgment of the receipt of these articles and
forms on the front side marked as `A’ on each form. The said four
forms received by him were exhibited as Exhibits 211 (blood
form), 212 (blood form), 213 (hand-wash form) and 214 (bullet
form).
216.1 PW21 has stated that he carried the articles and forms
to the police station and handed over the same to PI–Sankhe
(PW39), of Versova Police Station.
S.Q. Pathan / N.S. Chitnis 478/867
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PW39 - Mohandas Narayan Sankhe
217 PW39-Mohandas Sankhe has deposed that when he
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received articles from PW21 on 13 November 2006, he
forwarded the viscera bottles and the seized articles to the FSL;
that he forwarded the said property to the FSL under five letters
through PW53-Vishwajit Chavan and PW91-Sudu Pattade. The
five items forwarded by PW39 are (I) Hand-wash of the deceased
(Exh.–290) ; (ii) Blood for alcohol (Exh. – 291); one sealed
bottle of 3 bullets (Exh.–292) (iv) Blood for blood grouping
(Exh.–293) (v) Letter to the C.A. by Sr.PI of Versova Police
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Station dated 13 November 2006.
PW53 - Vishwajit Manohar Chavan
218 PW53-Vishwajit Chavan was attached to Versova
Police Station as Police Constable, since November 2005.
According to PW53, he met Sudu Pattade (PW91) Store keeper
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on 13 November 2006. He has stated that thereafter they took
articles seized by the police and some bottles sent by J.J. Hospital
to Kalina for chemical analysis. The said muddemal was in
respect of C.R. No.302/2006 of Versova Police Station and that
the hospital papers (4 in numbers), police station papers (4 in
numbers) and bottles were with him. The said witness has
identified the same (Exhibits 290 to 293) and the documents
(Exhibits – 211 to 214), already exhibited through PW29-Dr.
Gajanan Chavan.
PW91 - Sudu Krushna Pattade:
219 PW91-Sudu Pattade was attached to Versova Police
th th
Station as ASI since 4 June 2004 till 30 June 2009. He has
deposed that he had the charge in the capacity of Muddemal
Store Keeper in Versova Police Station. He has deposed that on
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13 November 2006, he took 15 sealed packets alongwith a letter
to FSL, Kalina, Mumbai and there is an entry made in the Station
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Diary to that effect i.e. Exh. 297(A). The said entry is in the
handwriting of Mr. Pradhan, as per his (PW91’s) instructions.
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Exh. 297(A) is the station diary entry No.25/06 dated 13
November 2006 of Versova Police Station regarding dispatch of
muddemal to FSL.
220 It appears from the evidence of PW29-Dr.Gajanan
Chavan that he gave five sealed bottles i.e., two bottles containing
blood, two bottles containing water like liquid and one bottle
containing three bullets, to PW21 who in turn gave these articles
to PW39, which were sent to FSL through PW53 and PW91.
Admittedly, as noted above no weapons were sent to FSL, in C.R.
No.302/2006.
PW86 – Gautam Natha Ghadge:
221 PW86– Gautam Ghadge was working as Scientific
Assistant and was promoted as Assistant Chemical Analyzer in the
year 2008. He has deposed that a forwarding letter No.6523/2006
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dated 13 November 2006 (Exh. 294-A) was brought by ASI
Patade (A18) of Versova Police Station, which was initially
received by Mahesh Khavanekar, who, later on, handed over the
same to PW86. He has submitted that Dr. (Ms). Deshpande, the
then Assistant Chemical Analyser, Kalina received 15 sealed
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parcels on 13 November 2006 and marked them as Exhibits 1 to
15. Dr. (Ms.) Deshpande, effected the entry of BL/938/2006 in
the Entry Register and kept the sealed packets in the Strong
Room. Before keeping the same in the Strong Room, the sealed
packets were opened. The said 15 sealed parcels sent along with
the forwarding letter (Exh. 294-A), in connection with C.R.No.
302/2006 were-
Parcel (1) (Exh.-1), One 6 Chambered country made
revolver having crude markings made in Japan. (allegedly used
by the deceased) .
Parcel (2) (Exh.-2), 2 Two .32 – inch revolver cartridges
having light indentation on the caps and head stamp marking
KF .32 S & WL and RP .32 S & WL. (allegedly used by the
.
deceased)
S.Q. Pathan / N.S. Chitnis 482/867
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Parcel (3) (Exh.-3), Two KF .32 – Inch S & WL revolver
empties having indentation on the caps. (A18’s weapon)
Parcel (4) (Exh.-4), One 9mm pistol having indentation on
cap and head stamp marking KF9 mm 2z.94. (A15’s weapon)
Parcel (5A & 5B) (Exh. 8), Two .38" revolver empties
having indentation on cap & head stamp marking KF.380.2.90.
(OA1’s weapon)
Parcel (6) (Exh. 9), Two .38" revolver empties having
indentation on cap & head stamp marking KF.380.2.01 (A15’s
weapon)
Parcel (7) (Exh. 10), Two .38" revolver empties having
indentation on cap & head stamp marking KF.380.2.98. (A22’s
weapon)
Parcel (8) (Exh. A), Reddish liquid in a phial.
Parcel (9) (Exh. B), Reddish liquid in a phial.
Parcel (l0A) (Exh. C), Full Bush Shirt (Cut)
Parcel (l0B) (Exh. C), Full Pant
Parcel (10C) (Exh. C), Sando banian (Cut)
Parcel (10D) (Exh. C), Underwear (Cut)
Parcel (11A & 11B), (Exh. D), A pair of shoes
Parcel (12) (Exh. E), Reddish liquid in a phial
S.Q. Pathan / N.S. Chitnis 483/867
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Parcel (13) (Exh. 5). Reddish liquid in a phial
Parcel (14) (Exh. 6), Earth mixed with reddish liquid in
phial
Parcel (15) (Exh. 7), Earth in a Phial
The reports Exhibits 251 (251A), 253 (253A), 254
(254A) were exhibited through this witness.
222 The ML Case No. BL/939/2006 is with respect to
three deformed copper jacketed bullets having rifling marks, put
in the bottle having label and seal of JJ PM Center i.e. of the
deceased, were marked as Exhibits lA to IC. The details of the
said Exhibits are as under:
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Exh. 292 is the forwarding letter dated 12 December 2006
bearing Outward No. 6522/06 from Versova Police Station to
FSL in C.R.No. 302/2006 in respect of one sealed bottle of 3
bullets.
S.Q. Pathan / N.S. Chitnis 484/867
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Exh. 292A is the letter dated 12 November 2006 to JJ
PM Center, Byculla, Mumbai in C.R. No. 302/06 in respect of
one sealed bottle of 3 bullets.
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Exh.292B is the forwarding letter dated 12 December
2006 bearing Outward No.6522/2006 from Versova Police
Station to FSL in CR.No. 302/2006 in respect of one sealed
bottle of 3 bullets (fired by deceased).
The M.L Case No.BL/940/2006 pertains to two sealed
bottles containing handwash of the deceased having label and
seal of JJ PM Center. There is an entry in the entry register
which is marked as Exhibits 1 and 2.
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Exh. 290 is the forwarding letter dated 12 December 2006
from Versova Police Station to FSL in C.R No. 302/2006 in
respect of handwash of deceased’s right and left hand.
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Exh. 290A is the letter dated 12 November 2006 from J.J.
P.M Center, Byculla, to the Chemical Analyzer, State
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Government, Mumbai, in C.R. No. 302/2006 (ADR No.
55/2006) of the deceased.
223 PW86–Gautam Ghadge started analysis on all articles
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under ML Case No.BL/938/2006 on 28 May 2007; ML Case
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Nos. BL/939/2006 and BL/940/2006 on 30 May 2007 and
thereafter, he prepared the reports vide Exhibits 251 (251 A), 253
(253A) and 254 (254A).
The relevant portion from Exh. 251 (251-A) reads thus :
“-----Exhibit 1 is a six chambered country made revolver
in working condition. It is capable of chambering and firing .32"
revolver cartridges. Residue of fired ammunition-nitrite-was
detected in barrel washing of revolver exhibit 1, showing that
the revolver was used for firing prior to its receipt in the
laboratory.-----
----Two .32" revolver cartridges available in the laboratory
were successfully test fired from the revolver exhibit 1.----
----The .32" revolver cartridges in exhibit 2 having light
indentation on the caps and not suitable for comparison of firing
pin impression----
----The empties in exhibit 3A and 3B are the fired 32"
revolver cartridge cases. The characteristic features of the firing
pin impression observed under comparison microscope on the
empties in exhibit 3A and 3B tally among them-selves and on
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those cartridges test fired from the revolver exhibit 1, showing
that these empties in exhibit 3A and 3B have been fired from the
country made revolver exhibit 1----
----The empty in exhibit 4 is a fired 9 mm pistol cartridge
case----
----The empties in exhibit 5A, 5B, 6 and 7 are the
fired .38" revolver cartridge cases----
----The detection of metallic copper and lead in absence of
blackening and powder residues around periphery of encircled
shot holes on full bush shirt exhibit 10A and corresponding shot
holes on sandow banian exhibit 10C are consistent with the
passage and wipe of copper jacketed bullets having been fired
from beyond the powder range of the weapon-----
----Shot holes were not observed on full pant exhibit 10B
and underwear exhibit 10D.----”
The relevant portion from Exh. 253 (253-A) reads
thus :
“---- In absence of control samples, results for detection of
gun shot residues in turbid liquid in Exhibit 1 and 2 are
inconclusive.----”
The relevant portion from Exh. 254 (254-A) reads
thus :
“---- The deformed copper jacketed bullets in Exhibit 1A
to 1C are the fired .38" caliber revolver bullets.----”
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224 As far as seizure of articles and FSL evidence in the
present C.R i.e. 246/2009 by SIT is concerned, the prosecution
has relied on the evidence of PW99-Suresh Nalawade, PW39-
Manoj Chalke and PW86-Gautam Ghadge.
PW99 - Suresh Jagannath Nalawade:
225 PW99-Suresh Nalawade, was attached to Versova
Police Station as Sr. PI, at the relevant time. He has stated that
th
he received a letter dated 17 December 2009 (Exh. – 717) for
handing over muddemal (6 packets) in a sealed condition to Mr.
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Manoj Laxman Chalke (PW107) vide his letter dated 19
December 2009 (Exh. 718). Exh. - 717 is the letter of SIT
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dated 17 December 2009 bearing O.W. No. 156/2009 addressed
to Sr. PI Versova Police Station to hand over Muddemal in C.R.
No. 302/2006 and Exhibits 717 /718 is the covering letter dated
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19 December 2009 bearing O.W. No. 8193/09 of Sr. PI. Versova
for handing over Muddemal to DCP SIT.
S.Q. Pathan / N.S. Chitnis 488/867
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PW107 - Manoj Laxman Chalke:
226 PW107 - Manoj Chalke, the Investigating Officer in
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the present C.R. has deposed that on 19 December 2009, he
went to Versova Police Station, to receive Muddemal required in
investigation of C.R. No. 246/2009 from C.R. No. 302/2006;
that PW99-Suresh Nalawade handed over muddemal (6 packets)
in a sealed condition to him. He has stated that he also collected
13 other sealed parcels i.e. Muddemal from C.R. No. 246/2009,
which were deposited with the Muddemal Karkun of Versova
Police Station, for safe custody. He has deposed that he took
custody of 19 sealed packets and deposited the same at FSL,
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Kalina on the very day i.e. on 19 December 2009.
th
227 PW86-Gautam Ghadge has deposed that on 19
December 2009, original letter bearing O.W No.157/2009
addressed to Chemical Analyzer, Mumbai-98, was sent by DCP,
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SIT, Mumbai (PW110-K. M.M. Prasanna). Exh. 656 (colly) is
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the original letter dated 19 December 2009 by SIT to FSL,
Kalina, for chemical analysis. The said original letter (Exh.–
656A) and the parcels were received by Mahesh Khavanekar.
19 sealed parcels alongwith the said forwarding letter of Mr.
K.M.M. Prasanna (PW110) were sent to FSL, as per PW107-
Manoj Chalke. The said forwarding letter and all Exhibits
therewith, were allotted number BL/975/2009 by PW86.
nd
228 Report dated 2 February 2010 from FSL, Kalina
regarding chemical examination in ML Case No. BL/975/2009 in
C.R. No. 246/2009 alongwith photographs and negatives (three
roles) were marked as Exh. 658 (colly). The said 19 parcels sent
to the FSL were as under :
Parcel - 1 (Exh.1) - One six chambered .38" caliber
revolver having body no ....0539 butt no. 475 marking RUGER
POLICE SERVICE - SICX CAL .380 (Article no- 15) bears cello
S.Q. Pathan / N.S. Chitnis 490/867
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tape label bearing no. BL-975/09 Exh. 01.
Article 25 original label of Versova Police Station, CR.No.
246/2009, BL/975/2009 Exh. 01 is in his handwriting on the
label (Envelop marked Exh. 90).
Parcel 2 (Exh.2) - One Six chambered .39-inch caliber
revolver having body No. 00532 butt No. 468 and marking
RUGER POLICE SERVICE - SICX CAL .380 yellow tag label
BL/975/2009 Exh. 2 Article.16, Wrapper Article No. 26, office
seal Article 91.
Parcel - 3 (Exh.3) - One six chambered .38" caliber revolver
having body No. V720936, butt no. 294 & marking SMITH &
WESSON .38 S & W CTG MADE IN U.S.A, Article 17. Cello
tape label BL/975/2009 Exh. 03,Wrapper Article 27.
Parcel - 4 (Exh.4) - One Six chambered .38" caliber revolver
having body no N405648 butt no. 624 and marking TITAN
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TIGER CAL. 38 PL FIE CORP MIAMI FLA, Article 18, bears
cello tape label mentioned BL/975/2009 Exh. 4, Article 28 label
of the police station on wrapper.
Parcel - 5 (Exh.5) - One 9 mm Caliber pistol having body
No. 16112478 butt No. 2912 and making PISTOL AUTO 9 mm
lA RFI, Article 19 cello tape label written BL/975/2009, Wrapper
article 20.
Parcel - 6 (Exh.6) - One 9 mm Caliber pistol having body
No. 16112181 butt No. 2915 marking PISTOL AUTO 9MM lA
RFI, Article 21 bears cello tape label mentioned BL/975/2009,
Police station label Article 22.
Parcel - 7 (Exh.7) - One 9 mm Caliber pistol having body
No. 15179116 butt No. 786 marking PISTOL AUTO 9MM lA
RFI, Article 23 cello tape label written BL/975/2009, Police
station label Article 24.
S.Q. Pathan / N.S. Chitnis 492/867
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Parcel - 8 (Exh.8) - One Six chambered .38" caliber revolver
having body no 161-21934 butt no. 347 and marking RUGER
POLICE SERVICE - SICX CAL .380, Article 69 bears cello tape
label written BL/975/2009, Article 44 wrapper with label of
police station.
Parcel - 9 (Exh.9) - Ten intact .38 revolver cartridges - head
stamp marking KF .380 2 90, Cartridges (Article 32/1), Three (3)
live cartridges (KF .380 2 90), Article 32/2 were Five (5) fired
cartridges (KF .380 2 90), Article 32/3 - two (2) test fired
cartridges, Article 32/4- five test fired lead with copper jacketed
bullets having rifling marks connected with Article 32/2, Articles
32/5 was two test fired bullets lead with copper jacketed having
rifling marks. Connected to Article 32/3.
Parcel - 10, Exh.10, (Pradarshit ‘H’) - Ten intact .38"
revolver cartridges having head stamp markings KF .380 2 90.,
Article 34/1 contained five intact .38” revc-!ver cartridges
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(KF .380 2 90.), Article 34/2 - five test fired cartridges (empties),
Article 34/3 - five test fired bullets lead with copper jacketed
bullets.
Parcel - 11, Exh.11, (Pradarshit ‘H’) - Ten intact .38”
revolver cartridges having head stamp markings KF .380 2 98,
Article 36/1 two intact. 38” revolver cartridges (KF .380 298),
Article 36/2 three test fired cartridges (Empties) (KF .380 2 98.),
Article 36/3 five test fired cartridges (empties) (KF .380 2 98.),
Article 36/4 five test fired copper jacketed bullets (lead with
copper). Article 36/5 three test fired copper jacketed bullets (lead
with copper).
Parcel - 12, Exh.12, (Pradarshit ‘I’)- Ten intact .38" revolver
cartridges having head stamp markings KF .380 2 01, Article 40/1
- three intact cartridges .38” revolver cartridges having head
(stamp markings KF .380 2 01), Article 40/2 were seven test fired
cartridges(empties) having head (stamp markings KF .380 2 01 on
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all empties.). Article 40/3 - five test fired lead with copper
jacketed bullets, Article 40/4 - two test fired lead with copper
jacketed bullets.
Parcel - 13, Exh.13, (Pradarshit ‘L’) were ten intact 9 mm
pistol cartridges having head stamp markings KF, 9 mm, 2 Z, 94,
Article 38/1- one attempted to fire 9 mm pistol cartridge having
indentation on the cap and head stamp markings KF 9 mm 2 Z
94., Article 38/2 were three test fired cartridges of 9 mm pistol
cartridges (Empties), stamp markings KF 9 mm 2 Z 94, Article
38/3 -three test fired 9 mm pistol cartridges (empties), having
head stamp marking, KF 9 mm 2 Z 94, Article 38/4 were three
test fired 9 mm pistol cartridges (empties) having head stamp
marking KF 9 mm 2 Z 94, Article 38/5 three test fired lead with
copper jacketed bullets. Article 38/6 were three test fired lead
with copper jacketed bullets. Article 38/7 test fired lead with
copper jacketed bullets.
S.Q. Pathan / N.S. Chitnis 495/867
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Exh. - 14 - one 9 mm Pistol empty having indentation on
the cap and head stamp marking KF9 MM 2Z 94, Written
Versova PSTN ADR 55/2006, Cr.No. 302/2006, BL/938/2006,
Article 57.
Exh. - 15 & 15B (Marked during receiving the Exhibits)
Article 46, two .38 revolver empties are having indentation on
the caps and head stamp marking KF 380 2 90 wrapped in paper
labelled BL 938/2006, Exh. 5A & 5B (Marked at the time
returning Muddemal to ASI Patade), sealed condition labelled
Versova PSTN ADR 55/2006 CR/306/2006.
Exh. 16 - One .38” revolver empty marking KF.380 2 01,
bears label Versova PSTN ADR 55/2006 CR/306/2006,
BL/938/2006, Exh. 06 written at the time of returning the
Muddemal to Versova police station though ASI Pattade. (Article
16) (Marked during receiving the Exhibits) .
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Exh. 17 - One .38 revolver empty having indentation on
the cap & Head stamp marking KF .380 2 98 Versova PSTN
ADR 55/2006 CR/306/2006, BL/938/2006, Exh.07 Written at the
time of returning the Muddemal to Versova police station though
ASI Pattade. Exh. 17 ( Marked during receiving the Exhibits).
Exh.18A, - (Article 89) (30/1, 30/2, 30/3) one deformed
copper jacketed bullet having rifling marks. Exh. 18B one
deformed copper jacketed bullet having rifling marks 18C is one
deformed copper jacketed bullet having rifling marks Versova
PSTN ADR 55/2006 CR/306/2006, BL/938/2006,
Exh. 1A to 1C were written at the time of returning the
Muddemal to Versova police station, though ASI Pattade (A18).
The said exhibits were marked as 18A to 18C (Marked during
receiving the Exhibits).
Exh.19A - (Full Shirt) Article 73, labelled BL/938/2006
Ex.10A.
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19B (Full pant) Article 77, labelled BL/938/2006 Ex.10B.
19C (Sando Banian) Article 81, labelled BL/938/2006
EX.10C.
19D (Underwear) Article 85, labelled BL/938/2006
Ex.10D.
229 It is a matter of record that Muddemal articles and
FSL report were handed over to Mr. Vinay Baburao Ghorpade
nd
(PW108), SIT on 2 February 2010. The FSL Report is marked
as Exh. 658 (colly). The said FSL Report reads thus :
RESULTS OF ANALYSIS
Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4 and Exhibit 8
are the six chambered .38" caliber revolvers in working
condition. ….…
Randomly selected five .38" revolver cartridges from
Exhibit 9 were successfully test fired from the .38" caliber
revolver Exhibit 1.
Randomly selected five .38" revolver cartridges from
Exhibit 10 were successfully test fired from the .38" caliber
revolver Exhibit 2.
Randomly selected five .38" revolver cartridges from
Exhibit 11 were successfully test fired from the .38" caliber
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revolver Exhibit 3.
Randomly selected six .38" revolver cartridges from
Exhibit 12 were successfully test fired from the .38" caliber
revolver Exhibit 4.
Randomly selected six .38" revolver cartridges, two from
Exhibit 9, three from Exhibit 11 and one from Exhibit 12 were
successfully test fired from the .38" calibre revolver Exhibit 8.
Exhibit 5, Exhibit 6 and Exhibit 7 are the 9mm caliber
pistols in working condition. …..
Randomly selected three 9mm pistol cartridges from
Exhibit 13 were successfully test fired from the 9mm caliber
pistol Exhibit 5.
Randomly selected three 9mm pistol cartridges from
Exhibit 13 were successfully test fired from the 9mm caliber
pistol Exhibit 6.
Randomly selected three 9mm pistol cartridges from
Exhibit 13 were successfully test fired from the 9mm caliber
pistol Exhibit 7. Remaining one 9mm pistol cartridge in Exhibit
13 was found to be not live on test firing from 9mm caliber
pistol Exhibit 7.
The empty in Exhibit 14 is a fired 9mm pistol cartridge
case. The characteristic features of the firing pin impression
(examined under comparison microscope) on the empty Exhibit
14 tally with those on the cartridges fired from the 9mm caliber
pistol Exhibit 7, showing the empty has been fired from the
9mm caliber pistol Exhibit 7.
The empties in Exhibit 15A and 15B are the fired .38"
revolver cartridge cases. The characteristic features of the firing
pin impression in addition to breech face marks (examined under
comparison microscope) on the empties Exhibit 15A and 15B
tally among themselves and with those on 38" revolver cartridges
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fired from the .38" caliber revolver Exhibit 1, showing these
empties have been fired from .38" caliber revolver Exhibit 1.
The empty in Exhibit 16 is a fired .38" revolver cartridge
case. The characteristic features of the firing pin impression
(examined under comparison microscope) on the empty Exhibit
16 tally with those on the cartridges fired from .38" caliber
revolver Exhibit 4, showing the empty has been fired from
the .38" caliber revolver Exhibit 4.
The empty in Exhibit 17 is a fired .38" revolver cartridge
case. The characteristic features of the firing pin impression, in
addition to breech face mark (examined under comparison
microscope) tally with those on the .38 " revolver cartridges fired
from the .38" caliber revolver Exhibit 8, showing the empty has
been fired from the .38" caliber revolver Exhibit 8.
The deformed copper jacketed bullet in Exhibit 18A is a
fired .38" caliber revolver bullet. This bullet (examined under
comparison microscope) tally with test fired bullets from .38"
caliber revolver Exhibit 1, in respect of the number and widths
of the lands and grooves, direction and extent of twist of rifling
and characteristic striations on the lands and grooves impression
on the bullet in Exhibit 18A, showing the bullet has been fired
from .38" caliber revolver Exhibit 1.
The deformed copper jacketed bullet in Exhibit 18C is a
fired .38" caliber revolver bullet. This bullet (examined under
comparison microscope) tally with test fired bullets from .38"
caliber revolver Exhibit 4, in respect of the number and widths
of the lands and grooves, direction and extent of twist of rifling
and characteristic striations on the lands and grooves impression
on the bullet in Exhibit 18C, showing the bullet has been fired
from .38" caliber revolver Exhibit 4.
The deformed copper jacketed bullet in Exhibit 18B is a
fired .38" caliber revolver bullet. This bullet (examined under
comparison microscope) tally with test fired bullets from .38"
caliber revolver (Exhibit 8), in respect of the number and widths
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of the lands and grooves, direction and extent of twist of rifling
and characteristic striations on the lands and grooves impression
on the bullet in Exhibit 18B, showing the bullet has been fired
from .38" caliber revolver Exhibit 8.
Test firing in the laboratory on cloth targets done, kept at
distance (touch firing, 6 inch, 2 feet, 1 meter and 2 meter) from
muzzle end of revolvers and pistols Exhibit 1 to 8, the nature of
shotholes on cloth targets and the shotholes on front side of full
bush shirt Exhibit 19A and corresponding on sandow banian
Exhibit 19C are consistent with the distance of firing is about 2
meter from revolver or pistol.
Remaining opinion please refer this office M.L.C. No.
BL-938/08, BL-939/06 and BL-940/06.”
(Emphasis supplied)
230 It is pertinent to note that PW86-Gautam Ghadge,
nd
started analysis of the 19 articles of BL975/09 on 22 December
st
2009 and concluded the analysis on 1 February 2010. He
prepared hand-notes Exh. 657 (Colly consisting of 20 pages), in
his own handwriting simultaneously, at the time of analysis; that
these hand-notes also bears the counter signature of Dr. (Ms.)
Deshpande (Dy. Director F.S.L Mumbai). PW86 also prepared
report at Exh.658 (colly.).
230.1 PW86 has, in his report, observed physical
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parameters, weight and indentation on the cap of Exh. 14 - (One
9 mm Pistol empty). From the evidence of PW86, it is evident
that he carried out microscopic comparison of empty Exh.l4 and
Test Exh.7 and found that the characteristic features of the firing
pin impression of Test Exh.7 tallied with Ex.14. It showed that
the empty Exh. 14 had been fired from Exh.7 – (9 mm caliber
pistol). Thus the empty found on the spot tallied (Art.23) with
the pistol of Tanaji Desai (A2).
230.2 PW86 has further in his report observed that
.38"
Exh.15A, 15B (two revolver empties) and 18A (one
deformed copper, jacketed bullet) tallied with test fire of Exh. 1
(One six chambered .38" caliber revolver) i.e. revolver of Pradeep
Suryawanshi (A9). As noted earlier, A9 has admitted to firing on
the deceased.
230.3 PW86 in his report further observed that Exh. 16
(One .38" revolver empty) and Exh. 18C (one deformed copper
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jacketed bullet) tallied with test fire of Exh.4 (one six chambered
.38" caliber revolver) i.e. revolver of Dilip Palande (A15). As
noted earlier, A15 has also admitted to firing on deceased.
230.4 PW86 has further in his analysis observed the
description of Exh. 17 (one .38" revolver empty having
indentation on the cap and head stamp marking KF .380 2 98),
the physical parameters, weight of empty and head stamp of
empty. He has further observed that the characteristic features of
the firing pin impression, in addition to breech face marks, tally
with those on the .38" revolver cartridges fired from .38" caliber
revolver (Exh.8) thus showing the empty (Exh.17) has been fired
from the .38" caliber revolver Exh.8 (one six chambered .38"
caliber revolver). Thus, the empty produced by Arvind Sarvankar
(A22) tallied with Exh.8 (one six chambered .38" caliber revolver)
i.e. Art. 69-revolver of Pradeep Sharma (OA1).
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230.5 PW86 has in his report further observed that the
description of Exh. 18B (deformed copper jacketed bullet) having
rifling marks, physical parameters, weight and caliber .38" caliber
revolver bullet, number of available lands and grooves, 5L/5V,
width of land and grooves LW/GW. Angle of twist R.H.T. after
carrying out the microscopic comparison between Test Exh.8
(One Six chambered .38" caliber revolver) with Exh. 18B (one
deformed copper jacketed bullet). These, Exhibits tallies in
respect of the number and widths of the lands and grooves,
direction and extent of twist of rifling and characteristic striations
on the lands and grooves impression on the bullet.
231 Thus, according to PW86, the Test, Exh.8 (One Six
chambered .38" caliber revolver) tallied with Exh. 18B (one
deformed copper jacketed bullet). According to PW86, one of
the bullet retrieved from the body of the deceased tallied with
Exh.8 (One Six chambered .38" caliber revolver-Article 69)
Pradeep Sharma (OA1).
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232 The evidence of PW86 and the Ballistic Report also
shows that the deceased was fired at, from a distance of about 2
meters, whereas, as per C.R.No.302/2006, the distance was
around 40 feet.
233 As stated aforesaid, the prosecution has relied on the
evidence of the ballistic expert PW86-Gautam Ghadge, in support
of the evidence to show that the bullets retrieved from the
deceased’s body revealed that the same were fired from A9, A15
and OA1’s weapons.
234 It is pertinent to note that all the appellants/accused
have challenged the Ballistic Expert’s Report, except A9 and A15.
A9 and A15 have not disputed that they fired at the deceased in
th
the genuine encounter, which took place on 11 November 2006.
235 It is also pertinent to note that though initially A11
and A22 accepted firing at the deceased in the genuine encounter,
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they retracted from the same, after receiving the Ballistic Report,
which revealed that the empty surrendered by A22 was fired from
OA1’s service weapon; and the empty found at the alleged spot of
incident, near Nana Nani Park, allegedly fired from A11’s
weapon was infact fired from A2’s service weapon.
f. Law with regard to Ballistic Evidence/Forensic Evidence
236 Learned counsel for the appellants/accused submitted
that the Ballistic Expert’s evidence is unreliable and that the
Ballistic Expert cannot be termed as an Expert, in view of what
has come in his cross-examination. It is submitted that the
evidentiary value of this witness needs to be viewed with caution
and care, and that implicit reliance cannot be placed on PW86’s
evidence.
237 Mr. Ponda vehemently argued that PW86 was not an
expert, as is evident from his answers in the cross-examination.
He submitted that several discrepancies have come on record in
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the cross-examination of this so called expert witness, which
discrepancies have remained unexplained and as such, implicit
reliance cannot be placed on his evidence.
238 Per Contra, Mr. Chavan, learned Spl. P.P. and Dr.
Chaudhry submitted that the ballistic expert's evidence i.e. PW86
– Gautam Ghadge was unimpeachable, credible and was not
shattered, despite a grueling cross-examination. They submitted
that PW86’s analysis shows that he has several years of experience
in the ballistic field and that there was nothing to doubt his
report, which clearly reveals the firing of a bullet on the deceased
from OA1’s revolver (the said bullet was found embedded in the
deceased body).
239 Dr. Chaudhry relied on the following judgments, in
support of his submissions; (1) Leela Ram (dead) through Duli
16
Chand v. State of Haryana & Anr. and (2) Sukhwant Singh v.
16 AIR 1999 SC 3717
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17
.
State of Punjab
240 It is pertinent to note, that the learned trial Judge has
accepted the Ballistic Expert’s evidence and his report whilst
convicting the appellants-accused. The learned Judge in paras
1438, 1439 and 1475 observed that ballistic evidence shows that
the bullet produced by A22 was fired from OA1’s revolver; has
ruled out tampering; that the ballistic evidence cannot be
challenged as PW86 was having sufficient experience in this field;
that weapons were deposited in a sealed condition; that weapons
have individual characteristics and that the fired bullets have been
compared with test fired bullets under microscope and that they
tallied; that it cannot be said that PW86 is not an expert or that
he did not follow procedure; and that PW86 had done proper
examination. Infact the learned Judge has even accepted the
evidence of the Ballistic Expert qua A15, however, observes that
OA1 cannot be implicated only on the basis of the ballistic
evidence, which is a weak type of evidence and his report that
17 (1995) 3 SCC 367
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OA1 fired from his weapon at the deceased and that the bullet
found in the deceased’s body was the one fired from OA1’s
weapon, however, acquitted OA1 by observing that this being the
only evidence qua OA1 and Ballistic Expert’s evidence, being of a
weak type, cannot solely be relied upon without any
corroboration.
241 At this juncture, it would be apposite to consider the
probative value of a Ballistic Expert’s Evidence/Report.
242 A
s far as the evidentiary value of ballistic evidence is
concerned, in para 16 of Leela Ram (supra), the Apex Court
observed as under:
| “1 | 6 | . | It is the above evidence which has prompted the High |
|---|---|---|---|
| Court to ask the learned advocate appearing for the | |||
| prosecution “to caricature any position in which a man can | |||
| strike such an injury with a .12 bore gun …”. Whether there | |||
| was one shot or two shots, can it not be termed to be | |||
| immaterial in the matter of assessing the culpability of the | |||
| accused? The son who saw his father had been shot at and | |||
| thereafter fell dead — total stunning effect on the son and it | |||
| is on this score that mere hair-splitting on the available | |||
| evidence ought not to be undertaken and instead the totality |
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| of the situation ought to have been reviewed. | The empty | |
|---|---|---|
| cartridges were found and the ballistic expert's report that | ||
| the cartridges match with the injury. The High Court | ||
| ascribes this to be an immaterial piece of evidence. We, | ||
| however, do not think so. The ballistic expert's evidence | ||
| cannot be brushed aside since that is in the normal course of | ||
| events, a valuable material vis-à-vis the use of the gun and | ||
| the injury. | The High Court went on to record the | |
| contradiction from the medical evidence but unfortunately | ||
| the same does not find support from the evidence on record. | ||
| Dr A.S. Chaudhary having done the post-mortem | ||
| examination on the deceased Maman, has stated in his | ||
| evidence that “Injuries 2, 4 and 5 are the exit wounds. | ||
| Injuries 1 and 3 are the entry wounds”. Dr Chaudhary | ||
| further said that “Injury 1 is an entry wound of point-blank | ||
| range”. The doctor has been subjected to cross-examination | ||
| and he at the end of it all said that: “It can be said that the | ||
| injuries on the person of the deceased were the result of one | ||
| shot”. It is on this count, the High Court recorded that Dr | ||
| Chaudhary “had also to agree to this position”. (emphasis | ||
| supplied) Needless to say that the doctor probably has not | ||
| been able to match the cross-examining lawyer and there was | ||
| thus an unequal duel between the medical man and a refined | ||
| lawyer. Can it be said that by reason of the evidence of Dr | ||
| Chaudhary the contradictions are galore in nature, so far as | ||
| the evidence of Leela Ram is concerned — the High Court | ||
| upon consideration of the factum of such a contradiction | ||
| answers the same on a positive note. This however is not | ||
| acceptable to this Court: the discrepancy does not seem to | ||
| be of such a nature so as to effect the creditworthiness or the | ||
| trustworthiness of the witness. As a matter of fact, it does | ||
| not do so by reason of the fact that Maman fell a victim of | ||
| gunshot injuries and died: it is immaterial as to whether one | ||
| or two gunshots were fired — the contradiction at its highest |
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| cannot but be stated to be in regard to a minor incident and | |||||||
|---|---|---|---|---|---|---|---|
| does not travel to the root of the nature of the offence. The | |||||||
| other piece of evidence is that the Sarpanch and the | |||||||
| members of the Village Panchayat saw the accused running | |||||||
| away towards Village Aharwan just after firing with his gun. | ” | ||||||
| (emphasis supplied) |
| 243 |
|---|
in Para 21, has observed thus :
“21. There is yet another infirmity in this case. We find that
whereas an empty had been recovered by PW 6, ASI Raghubir
Singh from the spot and a pistol along with some cartridges
were seized from the possession of the appellant at the time
of his arrest, yet the prosecution, for reasons best known to
it, did not send the recovered empty and the seized pistol to
the ballistic expert for examination and expert opinion.
Comparison could have provided link evidence between the
crime and the accused. This again is an omission on the part
of the prosecution for which no explanation has been
furnished either in the trial court or before us. It hardly needs
to be emphasised that in cases where injuries are caused by
firearms, the opinion of the ballistic expert is of a
considerable importance where both the firearm and the
crime cartridge are recovered during the investigation to
connect an accused with the crime. Failure to produce the
expert opinion before the trial court in such cases affects the
creditworthiness of the prosecution case to a great extent.”
18 (1995) 3 SCC 367
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244 It is apposite to reiterate the observations made by the
Apex Court in the case of Ravi Sharma v. State (Government of
19
N.C.T. of Delhi & Anr.) , particularly para 19, which reads thus:
“19. The report of the ballistic expert is obviously a scientific
evidence in the nature of an opinion. It is required to use this
evidence along with the other substantive piece of evidence
available. The report is inconclusive with respect to the
firearm belonging to the appellant being used for committing
the offence.”
245 Considering the aforesaid, it is clearly evident that
ballistic evidence cannot be lightly brushed aside nor can it be
termed as a weak piece of evidence. Thus, the observation of the
learned Judge that the ballistic evidence is of a weak type, is
erroneous. We have gone through the evidence of PW86 in detail.
We find that PW86 is an expert in the Ballistic field, having
experience of over 20 years in the said field. We find that
despite a grueling cross-examination of this witness, his evidence
has not been shattered. We find that PW86 has meticulously
evaluated the material before him and thereafter, after making his
notes, has arrived at his conclusion. As noted aforesaid, even the
19 (2022) SCC OnLine SC 859
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trial Court has accepted PW86’s evidence and ballistic report vis-
a-vis firing by A9, A2, A15 and OA1, (bullets retrieved from the
dead body were found to have been fired from OA1, A9 and
A15’s service weapons and the empty found on the alleged spot
of incident i.e. Nana Nani Park allegedly fired from A11’s
weapon, was found to have been fired from A2’s service weapon)
but states that the said evidence being of a weak type and this
being the only evidence qua OA1, there being no corroboration
to the said evidence, unlike others, acquitted OA1. Apart from
the ballistic evidence, there is other evidence to connect OA1 to
the crime in question, which we will discuss while considering the
Appeal against Acquittal of OA1. Suffice to state, that the
prosecution has proved through cogent, legal and admissible
evidence of PW86 and other evidence that Ramnarayan was shot
at, by OA1, A2, A9 and A15 from a close distance. The Ballistic
report has, thus been proved by the prosecution.
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246 We now proceed to deal with next circumstance
relied upon by the prosecution i.e. of wrongful confinement of
Anil Bheda.
v. WRONGFUL CONFINEMENT OF ANIL BHEDA
247 According to the prosecution, Anil Bheda alongwith
Ramnarayan was picked up by the police from Sector 9, Vashi on
th
11 November 2006; taken to D.N. Nagar Police Station;
th
thereafter, on 12 November 2006, Anil Bheda was brought to
the Vashi Police Station, Navi Mumbai at 17:00 hrs., pursuant to
which, Aruna Bheda (PW40) withdrew her missing complaint;
then Anil and Aruna Bheda were taken to their house and from
there to Bhatwadi, Ghatkopar, where Anil Bheda’s in-laws were
residing; thereafter, all three i.e. Anil, Aruna and their son-Parth,
were taken to Kolhapur and after return from Kolhapur, Anil
Bheda was taken to Hotel Mid-Town, Andheri. It is the
th
prosecution case that throughout the said journey i.e. from 11
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November 2006 from the time Ramnarayan and Anil Bheda were
abducted, Anil Bheda was kept in wrongful confinement till
th
around 12 December 2006, by the appellants/accused.
248 In order to prove confinement of Anil Bheda,
Mr. Chavan, learned Spl.PP relied on the evidence of PW40 -
Aruna Bheda; PW32 - Sumant Bhosale; PW55 – Milind More;
PW43 - Madan More; PW45 - Naresh Phalke and the evidence
of PW52 - Purba Bhattacharya. It is submitted that the said
evidence is also corroborated by their CDRs.
249 Learned counsel for the appellants-accused submitted
that the evidence adduced by the prosecution suffers from several
infirmities and that none of the aforesaid witnesses i.e. PW32 -
Sumant Bhosale; PW55 – Milind More; PW43 - Madan More
and PW45 - Naresh Phalke, can be relied upon considering that
there are no station diary entries made by any of these witnesses
whilst leaving D.N. Nagar Police Station or of their return.
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Learned counsel for the appellants – accused further submitted
that the prosecution had failed to bring on record the hotel
Register to show that Aruna Bheda and Anil Bheda were kept in a
hotel at Kolhapur and thereafter, Anil Bheda was kept at Mid-
Town Hotel, Andheri. It is submitted that not a single witness
from the said hotels i.e. at Kolhapur and Mid-town have been
examined by the prosecution to substantiate the circumstance vis-
a-vis confinement of Anil Bheda and as such reliance cannot be
placed on the said circumstance. It is also submitted that
evidence of PW40 – Aruna Bheda cannot be relied upon,
considering her belated statements and the inconsistencies in her
evidence.
250 Per Contra, Mr. Chavan, learned Spl.PP, submitted
that the prosecution has duly proved that Anil Bheda was
th
wrongfully confined by the appellants/accused from 11
th
December 2006 to 12 December 2006, so that Anil Bheda does
not spill the beans, since Anil Bheda was a witness to the
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th
abduction and what happened on 11 November 2006.
251 Considering the aforesaid, we now proceed to
examine the evidence that has come on record vis-a-vis ‘wrongful
confinement of Anil Bheda’.
252 PW40 – Aruna Bheda has deposed with respect to the
confinement of Anil Bheda at Bhatwadi, Ghatkopar, then
Kolhapur and then at Mid-Town Hotel, Andheri.
252.1 PW40 is the wife of Anil Bheda. She has stated that
she was living with her husband Anil Bheda and son Parth in
Sector 29, Vashi, at the relevant time and that her son was
studying in St. Mary’s School. PW40 in her evidence has deposed
th th
with respect to the events that took place on 11 and 12
November 2006. We have spelt out the said evidence in detail
whilst dealing with the circumstance of ‘abduction’ and hence, do
not wish to repeat the same. We, whilst considering the said
circumstance, have also set out how a missing complaint of her
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th
husband was filed by Aruna Bheda on 11 November 2006.
th
252.2 According to PW40, on 12 November 2006, at
about 14:30 hrs., she called her brother-in-law Dheeraj and
informed him about the missing complaint lodged by her and
asked him to help her, since she was alone. She has stated that she
went back to the police station at 17:00 hrs. alongwith her
brother-in-law and his wife; that she went alone in the police
station; that whilst she was waiting, her husband Anil Bheda came
to the police station; that she asked him where he had gone, to
which, he replied that he had gone to Shirdi; that at that time,
Senior Officer D. B. Patil came there and took them to his cabin
and made inquiries with her and her husband Anil and recorded
their statements. PW40 has stated that she was shown one fax (of
abduction of Ramnarayan and Anil Bheda sent by her) by D. B.
Patil and that D. B. Patil inquired whether she had forwarded the
said fax; that she told him that she cannot read and write English
and that she had not sent the same; that she was asked to meet
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the police constable and was asked to withdraw the missing
complaint. Accordingly, PW40 – Aruna withdrew the missing
complaint by affixing her signature on the same (Exh. 307). She
has stated that when she came outside the police station, she
informed about their well being to her brother-in-law and his wife
and asked them to leave. She has stated that her husband Anil
th
informed her as to what had happened on 11 November 2006.
We have set out the disclosure made by Anil Bheda to her, whilst
considering the circumstance of abduction and as such, refrain
from spelling out the same again. She has stated that her husband
showed her one Qualis vehicle and told her that they would have
to go home in the said Qualis vehicle, pursuant to which, she and
her husband sat in the said vehicle; that there were two police in
plain clothes in the said vehicle; that they went to their residence
in the said vehicle; that she and her husband and the said two
plain clothes policemen came to her house; that she and Anil
took Parth and some clothes and again sat in the said Qualis
vehicle and went to her parent's house at Bhatwadi, Ghatkopar.
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She has further stated that the two policemen also came with
them inside her parent’s house and that the said plain clothes
police examined the house and locked the rear door from inside.
PW40 – Aruna has further stated that two other constables came
for night shift to Bhatwadi and that after the two constables
arrived, the earlier two police left the house and that the night
shift constables were sitting in the outer room of the house of her
parents and that since the Qualis vehicle was parked in front of
the neighbour’s house, there was a quarrel between the
neighbours and her parents. She has further stated that the
earlier two policemen again returned on the next day between
9:30 – 10:00 hrs and started to take Anil away; and that on
inquiry, she was told that they were taking Anil to D.N. Nagar
Police Station. PW40 – Aruna has identified the said two plain
clothes policemen with whom she had gone to her house (Vashi)
and then to Bhatwadi and who returned the next day morning, as
A2 - Tanaji Desai and A3 - Ratnakar Kamble @ Rattu, as being
the plain clothes policemen. She has also stated that the said
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policemen gave her their mobile numbers and told her, that if she
wanted to talk to her husband, she could call XXXXXX1323 of
A2 and XXXXXX3457 of A3. PW40 noted down the said
numbers in her diary. PW40 has stated that her husband returned
home at 18:30 hrs. in the same Qualis vehicle; that he disclosed
to her that he was going out for some period; that she and her
parents told Anil that they would not permit him to go alone and
that she (Aruna) and her son would accompany him; that the
persons who had come along consented for the same; that
pursuant thereto, she, her son and her husband - Anil went to
Kolhapur in the same Qualis vehicle; that on the way, the said
Qualis vehicle stopped between Santacruz and Vakola and one
person got down from the said vehicle and went running to his
house and brought his clothes. She has stated that apart from
three of them i.e. she, her son and her husband Anil, one more
person was present and that the person sitting next to driver, got
down from the vehicle and went to his house to bring his clothes.
She has stated that thereafter, they went to Sion and from Sion
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took the Konduskar bus and went to Kolhapur; that they reached
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Kolhapur on 14 November 2006 at about 18:00 hrs and stayed
in a hotel opposite the place where they alighted from the bus.
PW40 has stated that the person who had come with them stayed
in another room and that the person who accompanied them was
A5 (Hitesh Solanki @ Dhabbu). PW40 – Aruna has identified the
said accused. She has further stated that at about 10:00 – 10:30
hrs, she, her husband and her son alongwith A5 took darshan of
Goddess Mahalaxmi, where they met a constable from Vashi
Police Station. She has stated he was the same constable who had
come to her house to take the photograph. She has stated that
thereafter, her husband and A5 went to the Court at Battis Shirala
(Sangli), where a case was pending against her husband, whereas,
she and her son stayed in the hotel. She has stated that she was
informing about her well-being to her parents on telephone; that
they were in Kolhapur for 4 – 5 days and thereafter, all of them
returned to Ghatkopar, in a Konduskar bus. According to PW40
– Aruna, after some time, her husband and A5 went to D.N.
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Nagar Police Station, from where she received a telephone call
from her husband, that as there was danger to his life, he could
not return home and that he would reside in a hotel at Andheri
(West). She has stated that she was asked to contact him on the
mobile of A2 and A3. She has stated that during the said period,
she was residing at Ghatkopar with her parents. PW40 – Aruna
Bheda has further stated that her son was studying in a school at
Vashi and that during the said period, her son was absent from
school. According to PW40, her husband returned in December.
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After 2–3 days, they returned to their house at Vashi on 15
December 2006. She has stated that thereafter, they received a
call from A5, who asked them to leave the said place. She has
stated that since their son was studying in the said area, they
refused to vacate the premises, however, they were asked to
change the area. PW40 – Aruna Bheda has further stated that
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pursuant thereto, on 31 December 2006, they shifted from their
earlier premises to J N 2/21, Mahalaxmi Society, Vashi.
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252.3 PW40 was confronted with Exh.335 in her cross-
examination. She has categorically stated that she had not
prepared the affidavit and that she did not disclose in Exh. 335
that she along with her husband, had gone to Versova Police
Station to withdraw the missing complaint. Certain portions of
the said affidavit were marked, with which she was confronted.
She has denied stating so or that the contents therein i.e. Exh.335
were true and correct. She has also denied the suggestion that
she, nor her husband-Anil Bheda had got prepared the said
affidavit (Exhibit 335) from their advocate.
252.4 PW40 in her re-examination has deposed to with
respect to A5 handing over a prepared affidavit to her i.e. Exh.
335 to be tendered before the learned Metropolitan Magistrate,
who was conducting the inquiry. The contents of the said exhibit
were that Anil Bheda had gone to Shirdi (contrary to the
prosecution case vis-a-vis abduction of Anil Bheda). No doubt,
A5 has not cross-examined PW40, however, learned counsel for
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OA1 has cross examined PW40, with respect to what was
disclosed to by PW40 i.e. of A5 handing over to her a prepared
affidavit (Exh. 335). There is nothing in the cross, which would
want us to disbelieve PW40, in the facts, vis-a-vis A5, handing
over her affidavit (Exh. 335) for tendering it before the
Metropolitan Magistrate, in the inquiry.
PW32 - Sumant Ramchandra Bhosale on wrongful
confinement of Anil Bheda at Bhatwadi, Ghatkopar.
253 As far as the evidence of confinement of Anil Bheda is
concerned, the prosecution has also relied on the evidence of
PW32 - Sumant Bhosale. PW32 was attached to D.N. Nagar
Police Station at the relevant time, as a Police Naik in the
Detection Branch. The Detection Branch was headed by Crime
PI and that in 2006, A9 was PI – Crime. He has stated that OA1
was transferred to D.N. Nagar Police Station and that he
alongwith his staff was occupying the old duty officer’s room,
whereas, the new room constructed in the very same compound
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was used by the duty officer. He has stated that the staff of OA1
was deputed from other police stations. He has stated that OA1
and his staff were not doing any work of D.N. Nagar Police
Station and were not participating in the activities of the D.N.
Nagar Police Station. He has stated that in the staff of OA1, there
were A3 - Ratnakar Kamble @ Rattu and A2 - Tanaji Desai. He
has identified the said witnesses.
th
253.1 PW32 has deposed that on 12 November 2006,
when he returned to the police station between 21:00 to 21:30
hrs, after patrolling, he was called by PI Crime (A9) and was told
to accompany one constable to Mid-Town hotel, opposite
Andheri Railway Station. Pursuant thereto, he alongwith Milind
More (PW55) left for Mid-Town Hotel, however, they were again
called back by A9 and were told by A9 to sit in a green Qualis
Vehicle which was standing opposite OA1’s office. PW32 has
further deposed that he alongwith Milind (PW55) went towards
the Qualis vehicle which was a private vehicle and was used by
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the squad of OA1; and that one person was driving the said
vehicle and Virendra @ Viru (neither an accused nor a witness)
was sitting next to the said driver. He has stated that at about
10:30 hrs, they went to Bhatwadi, Ghatkopar in the said vehicle;
that there were chawls next to the road; that they were taken to
one of the houses in the said chawl; that the members of the
squad of OA1, i.e. A2 and A3 were present there; that the said
persons took them to one house and introduced them to one
person by name Anil and told them that the said person was of
great use to OA1; that they were told that the said person had
fear from Chhota Rajan Gang and were asked to stay to guard
Anil; that the green colour Qualis was parked opposite the said
house; that at about 23:30 hrs, A2 and A3 and Virendra (not an
accused) left and he and constable Milind (PW55) stood as night
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guards, till 9:30 hrs. on the next day; that on 13 November
2006 at about 9:30 hrs. A2, A3 and Virendra @ Viru came there
and alongwith Anil sat in a green colour Qualis and all of them
went to D.N. Nagar Police Station; that Anil was sitting in the
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back seat of the vehicle; that after the vehicle reached D.N. Nagar
Police Station, he and Milind (PW55) alighted from the said
vehicle and proceeded to the Detection Crime Branch, whereas
A2, A3 and Virendra @ Viru were in the said vehicle. He has
nd
stated that his statement was recorded by SIT on 2 February
th
2010 and that on 4 February 2010 he was called to SIT office at
Powai and that one person was shown to him. The said witness
has identified that person (Anil Bheda) as the same person for
whom they had gone to Bhatwadi, Ghatkopar.
253.2 The crux of the cross-examination of this witness is
that there are no station diary entries with respect to him leaving
the police station or returning back. The said witness has
admitted that there is no station diary entry of his either going to
Bhatwadi or of his return from Bhatwadi and that there was no
th
document available in the police station to show that on 11
November 2006, he alongwith A2, A3 and Virendra @ Viru had
gone to Ghatkopar alongwith PW55 in a green Qualis vehicle. In
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his cross-examination, PW32 has further admitted that it was
true, that no police officer can form his own investigating team
without consultation of Sr. PI or DCP or ACP and if such a
investigating team is formed, without such consultation, memo
and disciplinary inquiry can be initiated against the officer. He
has further admitted that only by orders of DCP can a police
officer or constable be transferred from one police station to
another police station while investigating a case and that the
police officer investigating a case cannot on his own, call for any
other police constable of other police station. He has also
admitted that private vehicles can be used by the Police Officer
for investigation to maintain secrecy or other such reason only
with permission of Sr. PI or ACP or DCP. He has denied the
suggestion that entries regarding private vehicles used with
permission of Sr.PI/ACP/DCP is maintained by Sr. PI and or said
officer. He has stated that he had not maintained vehicle
register/log book in the police station, at any time, nor, had he
used any private vehicle during investigation. He has further
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stated that the person at Ghatkopar did not identify himself as
Anil. According to PW32- Sumant Bhosale, he had disclosed to
SIT that Viru used to visit OA1’s office regularly.
253.3 PW32 - Sumant Bhosale has further stated that
he knew A2 and A3 as they had joined on deputation and that it
was true to say that they had joined D.N. Nagar Police Station on
deputation. Although, suggestion was put to the said witness that
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he had not gone to any house in any vehicle on 12 November
2006 and that Viru was not present with him in the said vehicle
and nor were A2 and A3 present in the said vehicle, the said
suggestions have been denied by PW32.
253.4 An omission with respect to A9 calling PW32 -
Sumant Bhosale and asking him to sit in a green colour Qualis,
has been brought on record. The omission pertains to A9. The
said witness has denied the suggestion that it was not true that
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A9 did not give any direction on 12 November 2006.
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PW55 – Milind Subhash More on wrongful confinement of
Anil Bheda at Bhatwadi, Ghatkopar.
254 PW55 was attached to the Detection Branch, D.N.
Nagar Police Station, Mumbai, as Police Constable at the relevant
th
time. PW55 in his evidence has stated that on 12 November
2006, he was on night duty in the police station i.e. D.N. Nagar
Police Station. He has stated that at about 9:30 hrs, Police Naik
Sumant Bhosale (PW32) told him that A9 had asked the two of
them to go to Mid-Town Hotel, opposite Andheri Railway Station
(W); that pursuant thereto, he took a pistol and five rounds from
District Hawaldar and put his signature in the register, after the
District Hawaldar-Khatal made an entry in the said register. He
has identified the relevant entry made, which is at Exh. 467. He
has stated that while he was in the compound of the police
station, he and Sumant Bhosale were called back; that PW32 –
Sumant went inside the police station and on returning, told him
to sit in a green colour Qualis vehicle; that Sumant also sat in the
said vehicle; that the said Qualis was being used by the squad of
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OA1 - Pradeep Sharma; that the said vehicle used to remain
outside the office of OA1. He has stated that there were total
four persons in the vehicle alongwith him and Bhosale i.e. a
driver and Virendra, who used to work for OA1 and who was not
from the Police Department. He has stated that there was one
more person who used to work for OA1 and that the said person
i.e. Hitesh Solanki @ Dhabbu (A5) used to be outside the office
of OA1 and would take outsiders to meet OA1, after making
inquiry.
254.1 According to PW55, he alongwith PW32 – Sumant
and others were taken in a Qualis vehicle to Bhatwadi,
Ghatkopar; that they reached Bhatwadi at about 10:30 hrs.; that
the vehicle stopped in front of a house situated by the side of the
road; that A2 and A3 were present in the said house; that A2 and
A3 were working in the squad of OA1. He has stated that A2
and A3 introduced him and Sumant (PW32) to one Anil and both
told them, that there was danger to Anil Bheda from Chhota
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Rajan Gang and hence, asked them to keep a watch; and that Anil
was OA1’s man. PW55 has further stated that after ½ an hour,
A2, A3, Viru and Driver went away and the Qualis vehicle was
parked near the footpath in front of the said house (Bhatwadi)
and that he and PW32-Sumant remained in the varanda of the
th
said house for the whole night; that on 13 November 2006 at
around 9:30 hrs. to 10:00 hrs, A2 and A3 returned to Bhatwadi,
pursuant to which they got into the said vehicle. He has stated
that he, PW32-Sumant, A2, A3, Viru and Anil got into the said
Qualis vehicle and went to D.N. Nagar Police Station. He has
stated that when they reached D.N. Nagar Police Station, he and
PW32-Sumant got down from the said vehicle and went to the
police station, whereas, the others remained in the vehicle.
254.2 In his cross-examination, in para 35, PW55 has stated
that he had not spoken to the person i.e. Anil Bheda, at Bhatwadi;
that even on the next day, there was no talk with the said person;
that, that person’s family members were present in the house and
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that the said person was free throughout the drive from his
house; and that his movements were not restricted during the
course of his duties. He has admitted in his cross-examination
that it was correct to say that the said person was doing his own
work and he was watching the said person; that he did not call
any one from his phone and that there was no phone in the said
room and that he did not place any order. PW53 has in his cross,
stated that during his duty on those two days, he did not ask the
person (Anil Bheda) his full name; that the said person also never
disclosed to him that he and his friend were kidnapped and that
his friend was killed, and as such, he did not feel that the said
person was forcefully confined.
255 The aforesaid evidence of PW40, PW32 and PW55 is
duly corroborated by each other. The evidence of the said
witnesses will reveal that Anil was wrongfully confined by A2, A3
and A5 at Bhatwadi, at Anil’s father-in-law’s residence.
S.Q. Pathan / N.S. Chitnis 534/867
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256 No doubt, there are no entries made by PW32 of
leaving D.N. Nagar Police Station whilst going to Bhatwadi and
of his returning, but one will have to examine the same having
regard to the fact, that the said witness was a constable and was
directed by his superior i.e. Pradeep Suryawanshi (A9) to go to
Bhatwadi. There is no reason to disbelieve the testimony of these
witnesses with respect to confinement of Anil Bheda at Bhatwadi.
As far as PW55 is concerned, it appears that he took a pistol and
five rounds from District Hawaldar, who in turn, made a Station
Diary Entry to that effect (Exh. 467). Infact, PW55 has denied
th
the suggestion that there was no entry in the diary dated 12
November 2006 regarding his visit to Ghatkopar. PW40 – Aruna
Bheda in her evidence has also deposed with respect to the
confinement of Anil Bheda at her parent’s place at Bhatwadi by
the police. The aforesaid evidence is also duly corroborated by
the CDRs’ of A2 and A3, which we will deal with, whilst dealing
with the circumstance of ‘CDR’, which shows their presence at
Bhatwadi, Ghatkopar, as deposed to by the witnesses.
S.Q. Pathan / N.S. Chitnis 535/867
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PW40-Aruna Bheda–on wrongful confinement of Anil
Bheda at Kolhapur.
257 As noted above, Anil Bheda, PW40 – Aruna and their
son Parth accompanied Anil from Bhatwadi to Kolhapur on
being permitted to do so. In this connection, prosecution has
examined PW40 – Aruna Bheda. PW40 – Aruna Bheda in her
evidence has categorically stated the manner in which she
alongwith her husband and son were taken from Bhatwadi by
Konduskar bus to Kolhapur by A5. It is pertinent to note that the
evidence of PW40 inspires confidence with respect to her, Anil
th
and her son being taken to Kolhapur. Admittedly, after 11
November 2006, Anil Bheda’s number was switched off and as
such there are no CDRs thereafter.
258 Although, learned counsel for the appellants-accused
submitted that PW40 freely moved around in Kolhapur and even
visited the temple and as such, it cannot be said that they were
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being confined, it is evident from PW40’s evidence that Anil
Bheda went to the Court at Battis Shirala, for a court hearing
alongwith A5. Thus, Anil was always under the watchful eyes of
one or the other accused.
259 The evidence of PW40 would reveal that she, her
husband Anil and son were brought back from Kolhapur by
Konduskar bus to Mumbai and thereafter, her husband Anil was
taken to Mid-town Hotel, Andheri where she was in touch with
her husband on the mobile numbers of A2 and A3. The CDR
evidence also supports the calls made by PW40 on A2 and A3’s
mobile. In connection with confinement of Anil Bheda at Mid-
th th
town Hotel, Andheri from 19 November 2006 to 12 December
2006, the prosecution relied on the evidence of PW55 – Milind
More, PW43 – Madan More and PW45 - Naresh Phalke.
PW55 - Milind Subhash More (on confinement of
Anil Bheda at Mid-Town Hotel, Andheri).
S.Q. Pathan / N.S. Chitnis 537/867
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260 PW55 – Milind More, who had also accompanied
PW32 to Bhatwadi, Ghatkopar to guard Anil was also sent on
night duty after a few days by the orders of A9 alongwith Naresh
Phalke (PW45) to Mid-town Hotel, Andheri Railway Station.
PW55 – Milind More in para 14 of his evidence has stated that by
the orders of A9, he and PW45-Naresh went to Hotel Mid-town
Hotel near Andheri Railway Station (W) and that one police
personnel Mr. Devidas Sakpal (A13) from D.N. Nagar Police
Station, met them at Hotel Mid-town. He has identified A13.
He has stated that A13 took them to one room on the second
floor of the said hotel; that there was one person, whom he and
Sumant (PW32) met, when they had gone to Ghatkopar; that his
name was Anil. PW55, has further stated that A13 introduced
him and PW45-Naresh to Anil and that he and PW45-Naresh
remained in the said room for the whole night to keep a watch on
Anil, at the say of A13. He has stated that after A13 went, he and
PW45-Naresh remained their upto 9:30 hrs. to 10:00 hrs. of the
next day. He has stated that on the next day at about 9:30 hrs. to
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10:00 hrs, A13 came there alongwith Viru, after which, he and
PW45-Naresh returned to the police station. PW55 has identified
the photograph of Anil (Exh. – 308).
260.1 In his evidence, PW55 has stated that he was called by
th
SIT on 19 March 2010 at about 18:00 to 19:00 hrs, in a room
nd
on the 2 floor of Hotel Mid-town, pursuant to which he went
there; that DCP Prasanna, Officers from SIT and his associate
PW43-Madan More, Anil and panchas were present in the room;
that Mr. Prasanna (PW110) made inqury as to in which room of
nd
2 floor of Hotel Mid-town, they stayed; and that pursuant
thereto, he showed room No.204 to him, in the presence of
panchas. PW55 has further stated that initially he had gone to
Mid-town Hotel and stayed in room No.204 with Anil Bheda.
260.2 It is pertinent to note that there is no cross-
examination of this witness with respect to what was deposed to
by him, that he had gone to Mid-town hotel and had stayed in
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room No.204 with Anil Bheda. The said witness has admitted
that there is no station diary entry with respect to his leaving the
police station or returning back to Mid-Town, though the same is
required. He has stated that his duty on those two days, was in
the capacity of police personnel. He has further admitted that
except his statement, there is no other proof to show in the form
of the entry in the diary or even personal diary of having gone on
th
duty on 19 November 2006. In his cross-examination PW55
has admitted that he did duty at Ghatkopar as well as at Mid-
town Hotel in plain clothes. He has stated that as he was attached
to the Detection Branch, he was not required to wear uniform
and that PW45-Naresh and PW32-Sumant were also not wearing
uniform, as they were attached to the Detection Branch. He has
stated that even A13, who met him was in plain clothes.
260.3 PW55 further in his cross-examination has admitted
that he did his duty in Hotel Mid-town only for one night in
room No.204 and that he, PW45-Naresh and that person slept in
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the said room; that he went on duty and remained on duty upto
next day morning, till he was relieved. He has stated that he did
duty only of room No.204 and as such cannot assign any reason
why in his statement before the police he had stated that he did
duty in room Nos.202 and 204. He has stated that he did not
th
disclose the said room numbers before SIT till 19 March 2010,
till his statement was recorded.
260.4 Suggestions made to this witness, that he never did
any duty at Bhatwadi, Ghatkopar and Hotel Mid-town or that he
was pressurised by his superior officers to give a statement as per
their wish, have been denied by him. He has also denied the
suggestion that he did not go to Ghatkopar or to Mid-town hotel,
at any time. He has further admitted that if any police personnel
from D.N. Nagar Police Station was required to go outside the
jurisdiction of D.N. Nagar Police Station, he had to inform the
Senior P.I; that it was correct to say that every member of the
Detection Branch had to make an entry on his own in the said
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th
diary with respect to his movement; that on 12 November 2006,
he did not make an entry in the said diary as the said diary was
not kept in the Detection Branch. He has stated that the diary
was maintained in the branch one year after he resumed his duty
in the Detection Branch.
261 Although there are certain minor omissions, the same
do not go to the root of the matter, considering the
overwhelming evidence with respect to wrongful confinement of
Anil Bheda, that has come on record i.e. the evidence shows that
th
PW55 had gone to Bhatwadi on 12 November 2006 and
thereafter to Mid-town Hotel; and that PW55, a constable had
acted on the directions of his superior i.e. A9 who was a PI at the
relevant time. PW55 has further stated that he personally did not
inform the Crime PI or Sr. PI, that a civilian stayed outside the
office of OA1, as everyone was aware of it and as such, personally
he did not feel it necessary to produce the said civilian A5 before
the Sr. PI. He has denied the suggestion that he had never seen
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A5 outside the office of OA1 or that the said person was called
Dhabbu or he was deposing falsely about Dhabbu. He has also
denied the suggestion that he was deposing falsely that he had
met A13 at Hotel Mid-town and that A13 had taken him to the
nd
2 floor of Mid-town Hotel and that he and PW45 – Naresh had
stayed in the hotel, at the say of A13 and that A13 came to meet
them at Hotel Mid-town on the following day.
PW45 - Naresh Namdeo Phalke on confinement of
Anil Bheda at Mid-town Hotel.
262 PW45 was examined by the prosecution to prove
confinement of Anil Bheda at Mid-town Hotel. PW45 was
attached to D.N. Nagar Police Station at the relevant time as
Police Constable and in November 2006, was attached to the
Detection Branch of the said police station. He has stated that A9
was in-charge of Crime Branch of the said Police Station whereas
OA1 was in-charge of the squad and was not doing any work of
th
the police station. According to PW45, on 11 November 2006,
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when he was working in night shift, he and PW55-Milind were at
the police station. He has stated that he was directed by A9 to go
to Mid-town hotel near Andheri Railway Station (West) and
hence, he went to the said hotel, where he met A13-Devidas
Sakpal outside the said hotel. He has stated A13 was working at
the D.N. Nagar Police Station. According to PW45, A13 took
nd
him to one room on the 2 floor of the said hotel, where one
Gujarati person was present and that they were asked to stay with
the said person, pursuant to which, he and PW55-Milind stayed
there the entire night. PW45 has further deposed that he spoke
to the said person who, during the talk, disclosed that his name
was Anil. He has further stated that at about 10:00 – 10:30 hrs
on the next day, A13 came to the room and that after some time,
Virendra also came to the room, after which he and PW55-Milind
went to the police station. He has further stated that when SIT
th
was making inquiry, he was shown one person on 6 March
2010 and that the said person was the same Anil who was in Mid-
town hotel and accordingly, he learnt that the full name of Anil,
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was Anil Jethalal Bheda. He has identified the photograph of Anil
(Exh. – 308) and as such has stated that he was same person who
was at the hotel.
262.1 The cross-examination of PW45 was also on similar
lines i.e. no entries were made in the station diary by the said
witness regarding the purpose of leaving the police station. The
said witness has admitted that no such station diary entry was
made while going to Mid-town Hotel. He has further admitted
that he did not inform the Duty Officer of the police station that
he slept in Mid-town hotel the entire night or that he had met
A13. He has further admitted that he did not make any inquiry
as to why the said person was kept in the said room in the hotel
nor did he verify, if any entry was made in the hotel register. He
has further admitted that the said Anil was not under any restraint
and that when he went to the room, he was alone. He has denied
the suggestions that he was falsely deposing that he had gone to
Mid-town Hotel with PW55-Milind on the directions of A9, and
S.Q. Pathan / N.S. Chitnis 545/867
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th
stayed with Anil; and that he had identified Anil on 6 March
2010 on the say of DCP Prasanna, as he was afraid that DCP
Prasanna would spoil his C.R report.
262.3 In his cross-examination, PW45 has further admitted
that he did not inform his name and details to the Receptionist of
Mid-town Hotel; nor did he inform the receptionist that they
were staying in the room for the entire night nor did he make any
entry in the hotel register about his staying in the hotel. PW45
has denied the suggestions that he did not meet A13 in Mid-town
hotel; or that he did not have any conversation with A13; or that
A13 did not take him to the room in the hotel. He has admitted
that he did not make any entry/note in writing about his visit and
meeting with A13 in the station diary nor had he disclosed the
same to any police officer.
263 The aforesaid evidence of all the witnesses inspires
confidence and clearly shows that Anil Bheda was confined by the
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th th
police from 11 November 2006 till about 12 November 2006
at D.N. Nagar Police Station, then taken to Vashi Police Station
by A2 and A3 and after the missing complaint was withdrawn by
PW40-Aruna, was taken to his house and from there, Anil,
PW40-Aruna and son Parth were taken to Bhatwadi, Ghatkopar,
to Anil Bheda’s in-laws house, from there on the next day i.e.
th
13 , Anil was taken to D.N. Nagar Police Station, and from there
again Anil, PW40-Aruna and Parth to Kolhapur, and on returning
from Kolhapur, after 3 to 4 days, Anil was confined at Mid-Town
th
Hotel till around 12 December 2006.
264 The aforesaid evidence of the witnesses has been duly
corroborated by the Nodal Officers who were examined by the
prosecution to show the presence of the said accused at the places
where Anil was detained. We will deal with the said evidence of
CDR, when we deal with the circumstance of CDR.
S.Q. Pathan / N.S. Chitnis 547/867
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265 Suffice it to say, that there is nothing on record to
disbelieve the testimony of the aforesaid witnesses with respect to
wrongful confinement of Anil as stated aforesaid. It is obvious
that PW32, PW55 and PW45 were all working under A9 in the
Detection Branch. They were sent by A9, their superior. As has
come on record in the evidence of PW55, there was a separate
diary kept in the Detection Branch. Despite extensive cross-
examination of the aforesaid witnesses, nothing is elicited in their
cross-examination, to disbelieve their testimony or discredit them.
The evidence on record clearly reveals that from the time of
th
abduction of Ramnarayan and Anil Bheda on 11 November
2006 at around 12.35 pm, Anil Bheda was wrongfully confined
th
by the accused till around 12 December 2006. Evidence shows
that Anil Bheda was prevented from proceeding beyond certain
limits i.e. beyond certain circumscribing limits, being
continuously under the watchful eyes of the accused at Bhatwadi
and then Kolhapur. Evidence reveals that A5 had taken Anil
Bheda, PW40 and their son to Kolhapur and that A5
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accompanied Anil Bheda to Battis Shirala for Anil Bheda’s court
case. Even PW40 could not meet her husband Anil Bheda, at
Mid-town Hotel. PW40 could only contact Anil Bheda on A2’s
and A3’s mobile phone. The last call on Anil Bheda’s phone was
th
on 11 November 2006 at 11:26:18 hrs, after which his phone
was switched-off. The evidence of witnesses clearly reveals that
Anil Bheda was not free to depart and was continuously under the
gaze of the accused, who were monitoring his movements. The
reason was far too obvious, Anil Bheda was an eye-witness, a
prime witness, to his and Ramnarayan’s abduction and would
spill the beans and disclose the truth. There was too much at
stake, for all those involved in the same, to let Anil Bheda, free,
even for a moment, away from their watchful eyes.
266 Apart from the aforesaid evidence of PW40 and the
police personnel i.e. PW32, PW55 and PW45 with respect to
confinement of Anil Bheda, there is evidence of PW52 - Purba
Bhattacharya, a primary teacher of the school where Anil and
S.Q. Pathan / N.S. Chitnis 549/867
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PW40’s son Parth was studying. The prosecution has examined
PW52 to prove that Parth was missing from school during the
th th
said period i.e. from 13 November 2006 to 11 December
2006.
PW52-Purba Bhattacharya
267 PW52-Purba Bhattacharya was serving as a primary
teacher in St. Mary’s Multi Purpose High School and Jr. College,
Sector 10-A, Vashi, Navi Mumbai, at the relevant time. She has
stated that the school received a letter from SIT and that the said
letter was received by the Principal of the School. She has
identified his signature and the letter received by the Principal.
The same is marked as Exh. – 385. She has stated that the
Principal asked her to answer the queries made by the SIT and to
furnish all the details for preparing the letter. The said letter sent
by the Principal was marked as Exh. – 386 (colly). She has stated
that alongwith her reply to the queries, a copy of the leaving
S.Q. Pathan / N.S. Chitnis 550/867
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certificate and a copy of the attendance certificate was also
furnished. The said witness has placed on record a copy of the
school leaving certificate of Parth Anil Bheda, attested by the
Principal (Exh. – 387). The said witness also during her evidence
produced the original attendance register for 2 months. In the
said register, the name of Parth was mentioned at serial No.4 in
her handwriting. She has stated that on perusing the attendance
register for the month of November 2006 to December 2006,
th th
Parth was absent from 13 November 2006 to 11 December
2006. She has stated that she being the class teacher, had written
all the entries in the attendance register in her handwriting. The
register is maintained in regular course and a copy of the same
was furnished to SIT (Exh. 388 (colly).
rd
267.1 PW52’s statement was recorded by SIT on 3
May 2012. She has stated in her cross-examination that the
attendance register was prepared by her and that the Principal
only attested the attendance register, though he did not prepare
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it. She has denied the suggestion that she and the principal have
prepared false and fabricated documents at the instance of police.
Nothing is elicited in the cross-examination of PW52, a school
teacher to disbelieve her testimony with respect to the fact that
Anil Bheda and PW40’s son Parth had not attended his school
th th
during the period from 13 November to 11 December 2006.
The evidence of PW52 thus corroborates the evidence of the
other witnesses that Parth, son of Anil and Aruna Bheda had not
attended school during the said period, for obvious reasons.
268 Thus, we have no hesitation in holding that the
prosecution has proved beyond reasonable doubt, that Anil Bheda
was wrongfully confined by the accused from the time of his
th th th
abduction on 11 November 2006 till 11 / 12 December, 2006,
at different places. The trial Court has also rightly recorded a
finding of wrongful confinement of Anil Bheda.
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269 The next circumstance relied upon by the prosecution
is with respect to the pressure tactics employed by the accused to
cover up C.R. No. 302/2006.
vi. PRESSURE TACTICS / MANIPULATION BY ACCUSED
PERSONS TO COVER UP C.R. NO. 302/2006
270 Mr. Chavan, learned Spl. P.P submitted that it is not
one of the usual cases, but it is a case where accused in uniform
were trying to cover up a fake encounter i.e. C.R No. 302/2006.
He submitted that there is ample evidence on record to show that
the appellants/police officers/police personnel, with the help of
their family members and advocates, had used pressure tactics to
ensure that the witnesses do not speak the truth, by intimidating
them. According to Mr. Chavan, the appellants, who are police
officers/personnel, had also manipulated the records to cover up
C.R No. 302/2006 in order to show a fake encounter, as a
genuine one.
S.Q. Pathan / N.S. Chitnis 553/867
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270.1 In support of the aforesaid submission, Mr. Chavan
learned Spl. P.P relied on the orders passed by the High Court in a
writ petition filed by the deceased’s brother Ramprasad Gupta
(PW1); the suo motu contempt proceeding initiated against A9-
Pradeep Suryawanshi, for interfering in the administration of
justice; the evidence of PW31-Dattatray Sankhe, PI attached to
D.N. Nagar Police Station; and the Investigating Officer in C.R
No. 302/2006; PW15-Avadhoot Chavan, P.I, also attached to
D.N. Nagar Police Station and PW35-Kiran Sonone, Sr. PI
attached to Oshiwara Police Station. Mr. Chavan submitted that
the evidence of the said three officers would show the pressure
tactics on the police officers/IOs employed by the
appellants/accused to fall in line, whilst investigating C.R No.
302/2006. Mr. Chavan also relied on the evidence of PW38-
Dheeraj Mehta, to show the pressure tactics and intimidation by
the family members of the accused and an advocate, on him. He
submitted that the evidence of PW38-Dheeraj Mehta is duly
corroborated by the evidence of PW107-Manoj Chalke; PW109-
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Sunil Gaonkar and PW110-K.M.M. Prasanna, to show that
PW38-Dheeraj Mehta was pressurised to toe a particular line
which was in consonance with C.R No. 302/2006. He submitted
that the evidence on record would explain why PW38 had given
th
his earlier statements dated 27 August 2009 and his 164
th
statement dated 4 September 2009. Mr. Chavan also relied
upon the threatening calls made by OA1’s advocate Sultan to Anil
Bheda, which was heard and recorded by PW107 and PW108 and
the said recorded conversation brought on record through the
said witness.
270.2 According to Mr. Chavan, Anil Bheda was never
called upon to show Trisha collection by SIT, for reasons
mentioned by the IO-K.M.M. Prasanna (PW110). He submitted
that ofcourse, later, Anil Bheda showed all the spots, right from
his abduction at Vashi, to Bhandup, to D.N. Nagar Police Station,
to Vashi Police Station, to Bhatwadi, to Kolhapur and then to
Mid-town Hotel and the same was drawn under a running
S.Q. Pathan / N.S. Chitnis 555/867
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panchnama. He further submitted that PW40-Aruna Bheda’s
evidence would also throw light as to why Aruna Bheda (wife of
Anil Bheda) lodged a missing complaint with respect to her
husband’s disappearance and the circumstances in which the said
missing complaint was withdrawn by her subsequently. He
submitted that even PW50-Jayesh Kesariya’s statement is a
testimony of why he had toed the line initially with Anil Bheda
i.e. as he felt that Anil Bheda's family life was in danger. He
submitted that it is in those circumstances that PW50 gave his
statement before the SLAO that he had gone with Anil Bheda to
Shirdi, when infact, the same was not true, and that subsequently,
PW50 disclosed the truth before the SIT, after Anil Bheda gave his
statement to SIT.
270.3 Mr. Chavan also relied on the additional affidavit of
A9, to show how A9 had manipulated and created false evidence
i.e. the statement of Gangadhar Sawant (fingerprint expert), after
nearly 3 years of the incident, when A9 was in no way concerned
S.Q. Pathan / N.S. Chitnis 556/867
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with the investigation of C.R. No. 302/2006. Mr. Chavan also
th
relied on the 161 statement of PW2-Ganesh dated 14 March
2007, recorded by A9, although the I.O. of the said case was PI
Dilip Patil.
271 Learned counsel for the appellants/accused denied any
pressure tactics/ intimidation/ manipulation by the
appellants/accused to cover up C.R No. 302/2006. They
submitted that to the contrary, what was disclosed to, by the
witnesses before the SLAO was correct and that SIT had
subsequently recorded statements of witnesses under duress and
by intimidating the said witnesses. Learned counsel for the
appellants vehemently denied any pressure tactics being employed
by the appellants/accused or creation of false evidence.
272 Considering the aforesaid, we now proceed to
examine the evidence adduced by the prosecution in this regard
and consider whether the appellants/accused had exerted any
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pressure tactics or had intimidated the witnesses or manipulated
the records as alleged by the prosecution to cover up C.R No.
302/2006.
273 It is not in dispute, that this Court vide order dated
th
13 February 2008 had directed an inquiry to be conducted by
the learned Metropolitan Magistrate under Section 176(1-A)
Cr.P.C, into the encounter, as this Court was not satisfied with the
report submitted by the SLAO. Pursuant to the said direction, the
learned Metropolitan Magistrate conducted an inquiry as
mandated under section 176(1-A) Cr.P.C and accordingly
th
submitted her report dated 11 August 2008 to this Court. It is
not in dispute that the said report submitted by the learned
Magistrate revealed that it was a fake encounter, pursuant to
th
which, this Court, vide order dated 13 August 2009 constituted
SIT and directed registration of an FIR as against the accused and
investigation into the said case. We have, herein-above,
reproduced the relevant part of the orders in the sequence of
S.Q. Pathan / N.S. Chitnis 558/867
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events spelt out in para 28.2 herein-above.
274 It appears that this Court was constrained to issue suo
motu contempt proceedings against A9 being Suo Motu Criminal
Contempt Petition No. 10/2010. The said suo motu contempt
petition was initiated pursuant to a letter addressed by the learned
Metropolitan Magistrate Railway Court, Andheri, with respect to
the threats extended by A9, who was then attached to Andheri
Police Station, Mumbai. The Metropolitan Magistrate had made a
representation to this Court for taking action against A9, for his
illegal activities and for giving threats to her. In her letter, the
learned Magistrate had complained that after she submitted her
176(1) report to the High Court, A9, started pressurizing people
to make complaints against her. The Magistrate has also
mentioned in her letter, that she was given threats on telephone
and that the telephone of the A.P.P was used for that purpose.
The Magistrate was allegedly told, “I will see her and her
children”. It was further mentioned that the President of the
S.Q. Pathan / N.S. Chitnis 559/867
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Andheri Bar Association had told her that Mr. Suryawanshi had
put up a blank paper before him and had asked him to sign on
that, so that, he could make a complaint against the Magistrate.
This Court, after observing that prima facie, the acts constituted
gross contempt of Court, issued notice to A9 to show cause why
contempt proceedings should not be proceeded against him.
275 During the hearing of the contempt proceeding, this
Court sought better particulars from the learned Magistrate,
pursuant to which, the same were submitted. The contemnor
(A9) also filed his affidavit rebutting the allegations made against
th
him. This Court, after hearing the parties, vide order dated 4
February 2011 held A9 (contemnor) guilty of committing
criminal contempt and as such, directed him to suffer simple
imprisonment for 3 months and to pay a fine of Rs. 2,000/-. In
paras 24 and 25 of the said order ( High Court on its own motion
20
v. Pradeep Pandurang Suryawanshi, Police Inspector ) , this Court
observed in paras 24 and 25 as under :
20 2011 SCC OnLine Bom 147
S.Q. Pathan / N.S. Chitnis 560/867
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“24. The allegations as to interfering in the administration
of justice process by way of giving threats to the Judicial
Officer is definitely a serious matter, more so, when such
threats are coming from a responsible senior Police Officer
i.e Contemnor in the present case. On this aspect, following
observations from the Authority “King v. Davies, 1906 1 KB
32 (40) are reproduced with advantage :
“175. Attacks on Judge Cause Obstruction in Justice
Attacks upon the Judges excite in the mind of the
people a general dissatisfaction with all the judicial
determination and whenever man's allegiance to the
laws is so fundamentally shaken it is the most fatal and
dangerous obstruction of justice and calls out for a
more rapid and immediate redress than any other
obstruction whatsoever; not for the sake of judges as
private individuals but because they are the channels by
which the King Justice is conveyed to the people;”
25. Considering the above, in our opinion, the present
Contemnor is to be dealt with sternly when the acts
imputed against the Contemnor are established in present
contempt proceedings being a summary proceedings which
can be decided on the strength of the papers available
including the statement of A.P.P Shri Chandrashekhar Patil.
More so, because the Contemnor has taken defence which
to say the least is after thought and untenable.”
276 It is not in dispute that the SLP filed against the said
order by the contemnor (A9) was dismissed by the Apex Court
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th
and as such, the order dated 4 February 2011 of this Court
stood confirmed. It also appears that disciplinary inquiry was
initiated against the contemnor (A9), and his two annual
increments were stopped. It appears that only one document i.e.
written complaint by the learned Magistrate was relied upon
during the said inquiry.
277 The aforesaid incident would indicate the extent to
which A9, an officer in uniform, tried to impede the justice
system, only because the learned Metropolitan Magistrate
submitted her report pursuant to an order passed by the High
Court, stating therein that it was a fake encounter.
278 In the context of pressure tactics by police
officers/family members of accused, it will be necessary to also
consider the evidence of the officers investigating C.R No.
302/2006.
S.Q. Pathan / N.S. Chitnis 562/867
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PW31-Dattatray Sankhe
279 PW31-Dattatray Sankhe was working at the Oshiwara
th st
Police Station at the relevant time i.e. from 29 July 2007 to 1
June 2010, as a PI. He has stated that one PI i.e. Dilip Patil of
Oshiwara Police Station was investigating the Versova C.R i.e.
C.R No. 302/2006. He has stated that Shri Patil was investigating
st
the said C.R till 1 January 2008, till he was transferred from
Oshiwara Police Station. He has further stated that in the absence
of Shri Patil, PI Phadtare had carried out the investigation for
about 3 months and that he had received the investigation of the
st
said case on 1 January 2008. PW31- Dattatray Sankhe has stated
that the entire investigation was carried out by PI Dilip Patil and
that he had prepared a report “abated summary” of the said
offence i.e. C.R No.302/2006, in view of the demise of
Ramnarayan Gupta. He has further stated that the said report was
signed by Sr. PI, K.T Sonone and that the ACP had called for the
opinion of the DCP. He has further stated that when the
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investigation was handed over to him, a writ petition filed by
PW1 was pending in the High Court and hence, he did not feel it
proper to continue with the investigation, as the matter was
pending before the High Court. He has further deposed in his
evidence that he was present on all the dates of hearing of the
writ petition in the High Court and accordingly, had made entries
in the case diary and the station diary. He has further stated that
although the State Government had directed the inquiry to be
conducted by the District Magistrate, the report of the District
Magistrate was rejected by the High Court and the High Court
had directed the learned Chief Metropolitan Magistrate to hand
over the inquiry to a Judicial Magistrate. He has stated that the
said inquiry was handed over to the learned Magistrate of the
th
Mobile Court, Shri Kulkarni and that vide letter dated 28
February 2008, the learned Magistrate had called for original
papers from the police station. According to PW31, pursuant
th
thereto, on 29 February 2008, he forwarded all the papers to the
learned Magistrate and that the learned Magistrate forwarded the
S.Q. Pathan / N.S. Chitnis 564/867
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th
report to the High Court, with original case papers on 11
August 2008.
279.1 According to PW31, Police Officer ACP Dilip
Suryawanshi, elder brother of A9, had directed him to record
statements of the witnesses under Section 164 Cr.PC He has
stated that ACP Suryawanshi was deputed for the said area from
st
1 January 2008 and that he is the brother of A9. According to
PW31, as the matter was subjudice before the High Court and as
the original papers were before the High Court, he thought that it
would be illegal to proceed to record such statements and
accordingly informed ACP Suryawanshi that he would not record
th
such statements. PW31 has further stated that on 27 January
2009, ACP Dilip Suryawanshi wrote a letter to Sr. PI Oshiwara
Police Station, in which, the shortcomings in the investigation and
so also certain directions regarding the investigation were
highlighted. He has stated that the said letter was forwarded to
him by Senior PI, he (PW31) being the I.O. PW31 has handed
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over the letter (Exh. 242), which was accepted, subject to
objection. He has identified the signature of ACP Dilip
Suryawanshi. He has also identified the endorsement made on the
said letter which is in the handwriting of Sr. PI K.T. Sonone. It
was stated in the said letter, that the documents were now
produced before the higher officials for their perusal. He has
st
further stated that on 21 January 2008, the DCP of Zone-IX
Shri Kaushik filed an affidavit before the High Court, stating
therein that investigation is in progress in C.R No. 302/2006. He
has further stated that as there was immense pressure from ACP
Dilip Suryawanshi, he requested the learned Chief Metropolitan
Magistrate to record the statements of two witnesses i.e. Anil
Bheda and Shri Singh under Section 164 Cr.PC. The said witness
has placed on record the certified copy of the said application
which bears his signature. The certified copy is marked as Exh.
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243. He has stated that he received a letter on 30 January 2009
issued by ACP Dilip Suryawanshi directing the Sr.PI, D.N. Nagar
Police Station to comply with the order i.e. to record statements
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under Section 164 before the learned Metropolitan Magistrate
Shri ‘X’. The copy of the said application and order was also
forwarded with the said letter. He has identified the said letter
(Exh. 244) bearing the signature of ACP Suryawanshi. He has
further stated that he immediately filed the copy of the order with
the learned Metropolitan Magistrate Shri `X’ and that he did not
comply with the order which was passed on his application by the
Chief Metropolitan Magistrate, but complied with the order of
ACP Dilip Suryawanshi. He has stated that he recorded the
statements of some witnesses under Section 161 as per the
directions of Dilip Suryawanshi. He has further stated that again,
he was pressurized into recording statements of other police
witnesses under Section 164 Cr.PC PW31 has stated that as he
was being harassed personally, he again preferred an application
before the learned Chief Metropolitan Magistrate to record the
th
statements of the police officers, on 12 March 2009. He has
placed on record the said application which bears his signature.
Certified copy of the application is marked as Exh. 245. He has
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stated that the said request application was forwarded to the
learned Magistrate Shri ‘T’ and that the learned Magistrate orally
refused to record the statements, as the matter was subjudice
before the High Court. PW31 has stated that accordingly he gave
the said information to Sr. PI Sonone, ACP Suryawanshi and
DCP Kaushik. He has further stated that ACP Suryawanshi then
started asking him to request another Magistrate, however, he did
not feel it appropriate to make such a request. The said witness
has further stated that as he was being personally harassed, he
prepared a noting in this regard and requested the DCP to give
necessary directions, if the statements of the witnesses are to be
recorded under Section 164 Cr.PC He also has stated the
harassment caused to him and accordingly forwarded the details
thereof to DCP, Zone-IX through Sr.PI Oshiwara Police Station
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on 4 April 2009. PW31 has placed on record the said noting,
which runs into 6 pages (3 sheets). The said witness has admitted
the notings as being correct. The said notings are marked as Exh.
246. PW31 has also identified the signature of Sr. PI Sonone on
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the said noting. According to PW31, the DCP, Zone-IX returned
the said letter (Exh. 246) alongwith a direction to elaborate and
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clarify, pursuant to which, on 28 April 2009, he forwarded his
reply to DCP, Zone-IX, through Sr. PI Oshiwara Police Station.
The said witness has identified his signature on the said reply as
also the signature of Sr.PI Kiran Sonone and has accepted the
contents of the reply as true and correct. The same is marked as
Exh. 247 (Colly). He has stated that the said reply was
forwarded to the DCP, Zone-9 through the Sr. PI Oshiwara Police
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Station. He has stated that he had received papers on 8 May
2009 from the DCP, Zone-9, on which day, he was holding
charge of Sr. PI and hence, he signed the same in receipt of the
said papers. (The same was signed after necessary entries were
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made in the Register). According to PW31, on 24 April 2009,
ACP Dilip Suryawanshi issued a DO to Sr.PI-Kiran Sonone, which
DO was forwarded by the Sr.PI to him. As per the said letter
issued by ACP Dilip Suryawanshi, it was noted in the said letter
that he (PW31) had not complied with the directions and
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instructions issued in the letter dated 29 January 2009 (Exh.
242) and further directions were given to record statements under
Section 164 Cr.PC PW31 has identified the said DO issued by
ACP Suryawanshi. i.e. the signature of ACP Suryawanshi and the
endorsement of the forwarding letter by Sr. PI Sonone. The said
DO is marked as Exh. 248 (page 2864). According to PW31, for
the first time, he interacted with ACP Dilip Suryawanshi, after he
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took over the investigation of C.R No. 302/2006, on 11 August
2008. PW31 has stated in the applications which are at Exhs. 243
and 245 about likely threats to the witnesses and the
complainant. He has stated that he had not received any
complaints regarding such threats either to the witnesses or to the
complainant.
279.2 In his cross-examination, the said witness has
admitted that from the documents of investigation that were
placed before him in C.R No. 302/2006, he formed an opinion
that it was a case of genuine encounter and that he had read the
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statements in C.R No. 302/2006 of all the police officers who are
accused in the present case and had formed the said opinion after
reading the said statements. He has stated that after perusing the
said statements and other evidence on the file of C.R No.
302/2006, he came to the conclusion that it was a genuine
encounter. He has further in his cross stated that there was no
evidence of any of the family members of the deceased
contending that it was a fake encounter, in the file submitted to
the High Court and that it was during the course of investigation,
rd
he received a letter dated 23 June 2008 about the acceptance of
the report of the District Magistrate by the Government of
Maharashtra. He has also stated in his cross, that the Government
had accepted the report on the basis of the documents which
were submitted to the High Court. He has further stated in his
cross-examination that after reading the investigation papers of
C.R No. 302/2006, he did not find the involvement of OA1-
Pradeep Sharma in the said case. He has further admitted that he
did not know about the contents of the statements of Anil Bheda
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and Ramrajpal Singh recorded under Section 164 and whether
the said witnesses were under pressure or not and that he had not
pressurized the said witnesses to give any statement to the
Metropolitan Magistrate.
279.3 He has further in his cross-examination, admitted that
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he was issued a memo by ACP Suryawanshi on 27 November
2008, since he was in civil dress in the Police Station, however,
the witness voluntarily disclosed that he was in-charge as Sr. PI
and that on that day after his duty, he had gone home, however,
when he reached home, he received the message about bomb
blast, pursuant to which, he returned to the Police Station. He has
stated that since his cabin was closed and his uniform was inside
the cabin and that whilst he was discussing with other officers,
ACP Suryawanshi came and noticed the same and accordingly
issued him a memo. He has admitted that the said explanation
was not given to any other officer in writing nor any noting was
made in the station diary. He has further admitted that he had
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not informed the High Court that ACP Suryawanshi was
pressurising him to record statements of witnesses under Section
164 nor had he informed the Chief Public Prosecutor of the High
Court in writing, about the same nor had he informed the learned
Metropolitan Magistrate, when he preferred an application for
recording statements of witnesses under Section 164, that he was
pressurized by ACP Suryawanshi to do so, nor had he informed
the CP about the same. The suggestion made to the witness that
ACP Suryawanshi did not pressurise him to record the statements
of witnesses under Section 164 has been denied by him. PW31
has admitted that ACP Suryawanshi had given direction in his
official capacity.
279.4 It is pertinent to note that the documents i.e. Exhibits
242, 243 and 244 are a matter of record and the said
correspondence was made and exchanged between the parties in
the usual course of business and is official correspondence of the
Police Station. There is nothing in the cross to disbelieve the
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applications/notings made by the said witness nor is there any
suggestion made to this witness that the said applications/notings
have been fabricated, in particular, Exh. 246, which is at page
2853 and the notings at pages 2854 to 2856, which disclose the
pressure exerted by ACP Suryawanshi (brother of A9) to record
the statements of witnesses under Section 164 Cr.PC The
relevant paras of Exh. – 246 reads thus:
“ 10- lnjps izdj.k gs ek- mPp U;k;ky;kr izyachr
vlrkauk o lnj xqUg;kph loZ eqG dkxni=s xsY;k
,dk o"kkZ iklqu U;k;ky;kr tek vlrkauk ek- l-
iks-vk- nk- ukS- uxj Jh- lq;Zoa’kh lk- gs okajokj loZ
lk{khnkj ;kaps tckc dye 164 QkS-n-iz-l- vUo;s
uksanfo.;k ckcr rksaMh vkns’k djrkr o ,d izdkjpk
ncko vk.krkr ;k lanHkkZr vkEgh Lor% cgwrka’k
U;k;kY;kps rlsp eq[; iksyhl vfHk;ksDrk] brj
iksyhl vfHk;ksDrk o lsokfuo`Rr vfHk;ksDrk ;kaps er
tk.kwu ?ksrys vkgs- R;kauhgh lnjps izdj.k ek-
eq[; U;k;eqrhZ mPp U;k;ky;] eaqcbZ ;kapsdMs
izyachr vlrkauk o xqUg;kps dkxni= ek-
U;k;ky;kr tek vlrkauk dye 164 QkS-n-iz-l-
izek.ks tckc uksanfous fu;eckg; vlY;kps
lkafxrys-
S.Q. Pathan / N.S. Chitnis 574/867
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11- lnjph ckc lrr R;kaps fun’kZukl vk.kwu
fnyh vlrkauk lq/nk ek- lgk¸;d iksyhl vk;qDr]
nk- ukS- uxj foHkkx Jh- lq;Zoa’kh lk- gs eyk rkasMh
vkns’k nsowu ek>soj ncko vk.kr vkgsr- ”
English Translation of the above paragraphs Nos. 10 and 11,
read thus :
“10. Despite this case pending before the Hon’ble High
Court and despite all original documents pertaining to the
said offence filed in the Hon’ble Court since last one year;
Shri Suryavanshi, A.C.P., D.N. Nagar, frequently gives oral
directions for getting recorded statements of all witnesses
under Section 164 of the Code of Criminal Procedure and
puts one kind of pressure. In this connection, I personally
have sought opinion from various Courts as well as from
the Chief Police Prosecutor, other Police Prosecutors and
retired Prosecutors and they even have told that it is
contrary to the rules to record statements under Section 164
of the Code of Criminal Procedure when the said case is
pending before the Hon’ble The Chief Justice of the
Hon’ble Bombay High Court, Mumbai and the documents
pertaining to the said offence are filed in the Hon’ble
Court.
11. Despite bringing this fact to his notice time and
again, Shri Suryavanshi, Assistant Police Commissioner,
D.N. Nagar Division is putting pressure on me by giving
oral directions.”
S.Q. Pathan / N.S. Chitnis 575/867
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279.5 The noting records that ACP Suryawanshi had given
oral orders and was pressurizing PW31 to record the said
statements and that there was pressure to record 164 statements
of Anil Bheda, Jayesh Kesariya and Manohar Kulthe. It is further
recorded in the noting that the then Chief Public Prosecutor of
the Bombay High Court had during the course of discussion,
disclosed that pending the writ petition filed by PW1, 164
statements should not be recorded, as it would amount to
contempt of Court. The DCP, in his noting, whilst seeking
further detailed explanation with respect to the pressure exerted
on PW31, has noted that was it okay if written directions were
given. In the noting which is at Exh. 247 (Colly.), PW31 has
again reiterated the pressure exerted on him. The relevant para of
the said exhibit reads thus:
“
24- ek- lgk iksyhl vk;qDr] nk- ukS- uxj
eaqcbZ ;kauh lnj xqUg;krhy ojhy ueqn MksGl
lk{khnkj 1- jkejktiky flax 2- vfuy tsBkyky
HksMk ;kaps tckc lh- vkj- ih- lh- dye 164 izek.ks
uksan dj.;kdjhrk nk- ukS- uxj iksyhl Bk.;kps
ekQZrhus R;kaps iksyhl Bk.;kpk tkod dz- 742@09
S.Q. Pathan / N.S. Chitnis 576/867
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fnukad 27@1@2009 vUos"k ek- eq[; egkuxj
naMkf/kdkjh] fdYyk dksVZ] eaqcbZ ;kauk i= nsoqu ek-
U;k;ky;k dMwu 10 os U;k;ky;kps vkns’k feGowu ?ksowu
lnj vkns’kk lkscr R;kaps dk;kZy;kps i= tkod dz-
447@liksvk@nkukSfo@09 fnukad 29@1@2009 gs
tksMwu lnj xqUg;krhy MksGl lk{khnkj ;kaps lh-
vkj-ih-lh-dye 164 izek.ks tckc ek- egkuxj
naMkf/kdkjh] 10os U;k;ky;] va/ksjh ¼iwoZ½] ;kaps
U;k;ky;krp uksanokos vls vkns’khr dsY;kus lnjps
vkns’kkP;k izrh ek- egkuxj naMkf/kdkjh] 10 os
U;k;ky;] va/ksjh ¼iwoZ½] eaqcbZ ;kaps U;k;ky;kl lknj
d:u fnukad 7@2@2009 jksth lnj MksGl lk{khnkj
tckc ukasnfo.;kr vkysys vkgsr- ”
English translation of the above para reads thus :
“24. To get recorded the statements under Section 164 of
the Code of Criminal Procedure of the eye-witnesses by names
(1) Ramrajpal Singh and (2) Anil Jethalal Bheda, to the said
offence, the Assistant Commissioner of Police, D.N. Nagar
Division, Mumbai, through the D.N. Nagar Police Station,
under its letter bearing Outward No. 742/2009, dated
27.01.2009 submitted a letter to the Learned Chief
Metropolitan Magistrate, Killa Court, Mumbai and obtained
th
order to that effect in the name of the Learned 10 Court and
by annexing a letter bearing Outward No.
447/A.C.P./D.N.D./09, dated 29.01.2009 of his Office to the
said Order, gave directions to get recorded the statements under
Section 164 of the Code of Criminal Procedure of the eye-
witnesses to the said Offence, from the Learned Metropolitan
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Magistrate, 10 Court, Andheri (East) itself and therefore, by
submitting copies of the said orders to the Learned
th
Metropolitan Magistrate, 10 Court, Andheri (East), Mumbai,
the statements of the said eye-witnesses have been got recorded
on the date 07.02.2009.”
279.6 He has stated that ACP Dilip Suryawanshi had
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directed him in writing vide letter dated 27 January 2009 to
record the statements of the police officers and the witnesses
under Section 164. He has stated that pursuant to the letter of
the ACP, he had addressed a letter for recording the 164
statements of Aruna Bheda, Jayesh Kesariya and Manohar Kulpe,
however, the learned Magistrate had refused to record the same,
considering that the petition was pending in the High Court.
280 The aforesaid evidence of PW31 is duly corroborated
by PW35-Kiran Sonone, PI attached to Oshiwara Police Station.
The said witness i.e. PW35 has accepted the notings at Exh. 246
produced by PW31 as stated aforesaid and his signature thereon.
S.Q. Pathan / N.S. Chitnis 578/867
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PW35-Kiran Sonone :
281 PW35-Kiran Sonone has, in his examination, stated
that he was working as a Sr. Inspector of Oshiwara Police Station
between May 2007 to November 2009. He has stated that on
th
29 June 2011, PSI Chalke (PW107) came to his residence and
gave details about C.R. No. 246/2011 (present C.R.) and showed
th th
him the notings dated 4 April 2009 and 28 April 2009 and
made inquiries about the said notings. He has stated that after
seeing the notings, he perused the papers of C.R. No. 302/2006,
which was transferred from Versova Police Station to Oshiwara
Police Station. He has further stated that the notings which were
shown to him pertain to recording of the statements of witnesses
under Section 164 Cr.P.C and that PI Sankhe (PW31) had placed
the said notings before him, pursuant to which, he had made his
notings thereon. The said witness has admitted the remarks on
the said notings and his signature thereon. He has stated that PI
Sankhe (PW31) would discuss about the case and also about
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recording of statements of witnesses under Section 164 Cr.P.C in
C.R. No. 302/2006 with the then Chief Public Prosecutor
(Bombay High Court) and the opinion of the Chief Public
Prosecutor was, that it would not be appropriate to record the
statements under Section 164 when the matter was subjudice
before the High Court. PW35 has further stated that during that
period, ACP Dilip Suryawanshi was ACP of D.N. Nagar Division
and that he was insisting on recording of the statements under
Section 164 Cr.P.C, however, PI Sankhe (PW31) was not keen on
recording the statements. He has further deposed that ACP
Suryawanshi was pressurising him (PI Sankhe) and therefore, he
discussed the matter with him, pursuant to which, the notings
were made. PW35 has identified the notings made by him at
Exh. 246 i.e. the notings placed by PI Sankhe and his notings and
remarks thereon. He has admitted the contents to be true and
correct. He has further stated that the said notings were
thereafter forwarded to DCP Zone-9 Shri Kaushik, who made
certain remarks on the notings and sent them back for
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clarification to him, which in turn, he forwarded to PI Sankhe
(PW31). The said witness has identified the signature of DCP
Kaushik at Exh. 246. PW35 has further stated that during this
th
period, he received one DO dated 24 April 2009 (Exh. 248)
which he forwarded to PI Sankhe. He has identified the noting
on the said DO and the signature of Dilip Suryawanshi, which is
marked as `A’ for identification. He has further stated that in
Exh. 248, ACP Suryawanshi has made reference to another letter
i.e. Exh. 242 and that the said letter was sent by ACP
Suryawanshi. He has identified the noting made by him (PW35)
and his signature and accordingly forwarded the same to PI
Sankhe (PW31). He has further stated that he (PW35) replied to
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the said letter on the very next day i.e. on 28 January 2009,
which bears his signature. PW35 has admitted the contents
therein, being true and correct. Accordingly, the said reply was
marked as Exh. 264.
th
281.1 On 28 January 2009, PI Sankhe forwarded another
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noting to him, which he forwarded to the DCP, Zone-9 (Exh.
247). PW35 has identified the remarks on the said noting and his
signature thereon. He has also admitted the contents of the
noting as being true and correct. The said witness has also
identified the signature of ACP Dilip Suryawanshi on Exh. 242.
He has stated that all the said correspondence was done in the
normal course of business.
281.2 In his cross-examination, PW35 has admitted that
before PI Sankhe (PW31) received the investigation papers in
2008, PIs Mohan Sankhe (PW39), Dilip Patil and PI Phadtare had
already completed the investigation and had arrived at a
conclusion, and hence, he did not feel it necessary to re-
investigate, after the investigation came to Dattatray Sankhe i.e.
PW31. He has stated that he was satisfied that the investigation
and the conclusion arrived by the earlier investigating officers and
hence, did not bother to re-investigate. He has further admitted
that as per the investigation papers of C.R. No. 302/2006, it was
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a case of genuine encounter and not murder and that C.R. No.
302/2006, was not classified as `B’ Summary. He also admitted
that abated summary was proposed because of the death of
Ramnarayan Gupta and that the said report of abated summary
was placed before him by PI Patil; that he endorsed the same
report and placed the same before ACP Awate. PW35, in his
cross-examination, has further stated that in the inquiry which
was conducted by the SLAO-4, the same material as available in
C.R. No. 302/2006 was placed before the SLAO-4 and that the
report of SLAO-4 recorded a finding that the death of
Ramnarayan Gupta was caused in self-defence by the police. He
has stated that the said report was accepted by the State
Government i.e. Home Department (Special). He has further
admitted that it is true that the name of Pradeep Sharma (OA1)
did not appear in any of the investigation papers of C.R. No.
302/2006 and that the investigation papers did not disclose that
the officers who had gone to accost the deceased, were part of the
team of OA1, nor did the investigation papers disclose the
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presence of OA1 at Nana Nani Park at Versova.
282 It is pertinent to note that PW35-PI Sonone has duly
corroborated the evidence of PW31-Dattatray Sankhe with
respect to the notings made by him on the notings made by
PW31. There is no cross-examination of the said witness that the
notings were made subsequently or that they were fabricated,
much less, had any reason to make the said notings.
283 Although the learned counsel for the
appellants/accused made an endeavour to show that both PW31
and PW35, based on the investigation done in C.R No. 302/2006,
revealed that the encounter was genuine, the said admission is
with respect to what was placed before the said officers on the
basis of the investigation conducted by the earlier officers in C.R
No. 302/2006. The said officers i.e. PW31 and 35 came into
picture i.e in connection with C.R No. 302/2006 belatedly, when
almost the entire investigation was completed and when `abated
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summary’ report was proposed. Although PW35 has admitted
that the investigation papers did not disclose the presence of
Pradeep Sharma (OA1) at Nana Nani Park, it is pertinent to note
that the witness had deposed with respect to the same, based only
on investigation papers, as collected by the investigating officers
investigating C.R No. 302/2006. Although, a suggestion was
made to PW35 that the brother of A9 was not pressurising to
record statements of witnesses under Section 164, the same has
been denied by the said witness.
284 It is pertinent to note that Exh. 264 i.e letter dated
th
28 January 2009 by PW35 to ACP Suryawanshi sets out the
investigation carried out. All the correspondence, in particular,
the notings exchanged between PW1, PW35 and ACP
Suryawanshi, are in the course of the official duty and there is
nothing in the cross-examination to disbelieve the testimony of
these witnesses.
S.Q. Pathan / N.S. Chitnis 585/867
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285 With respect to pressure tactics and intimidation
exerted by some of the family members of the appellants/accused
and an advocate, the prosecution has examined PW38-Dheeraj
Mehta, in support of the same. The said witness is the witness
who was first informed by one Nilesh, immediately soon after
Ramnarayan Gupta and Anil Bheda were abducted from Sector
9A, Vashi. His evidence with respect to what was disclosed to
him vis-a-vis abduction, has been considered by us, whilst dealing
with the said circumstance. At present, we are concerned with
what has been deposed to by PW38 with respect to how he was
pressurised and intimidated as well as threatened.
286 PW38-Dheeraj Mehta, in his examination-in-chief, in
para 6 has stated that one person by name Avi had come in
August 2009 for getting gemstones (this is post the direction by
th
the High Court to register an FIR- i.e. order dated 13 August
2009. He has stated that the said person made inquiries about the
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stone and collected his visiting card and left; that at about 20:30
hrs., he received a call from his wife stating that one person by
name Avi had come to his house, pursuant to which, he asked his
wife to handover the phone to Avi; that he spoke to him; that the
said person introduced himself as a friend of Avi; that he asked
the said person who Avi was, to which, he replied as the person
who had come to the shop to purchase stone in the morning; that
he asked the said person to ask Avi to call him, pursuant to which,
after sometime, he received a call from a PCO; that he asked
why he had called, to which he disclosed that he had called for
gemstones; that he asked the said person how he had gone to his
house and how he got his residential address, to which he
disclosed that he had been to his shop and as the shop was closed,
he had gone to his house. PW38 stated that the said person
wanted one stone urgently, pursuant to which, PW38 called the
said person to Hotel Shabri at Vashi. According to PW38, the
said person came after 15-20 minutes; that he was accompanied
by two other persons; the said person stated that they wanted to
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speak about the encounter of Lakhanbhaiya (Ramnarayan); he
asked him who Lakhanbhaiya was; they stated that they wanted
to speak about Pandeyji (Ramnarayan) and Anil Bheda, who were
taken away from outside his shop; that the said person told him
that the said case is going to restart; that he asked Avi who were
the two persons with him, to which he disclosed that they were
relatives of the police officers, who were in jail; that when he
asked him what help was required, the said person disclosed that
he should go to his village for some days, as he and Anil Bheda
were witnesses in the said case and that since the police was
likely to inquire with him, he should go to the Village. PW38
has further stated that he refused the same and told them that he
could not go to the Village, as his business would be affected.
According to PW38, he again received a call on the next next day
from Avi who told him that if he could not go to the Village, he
should keep his shop closed for 8-10 days, pursuant to which, he
kept his shop closed for one week, as he did not want any hassles.
PW38 has further stated that during the said period, he received
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phone calls from Avi, who told him that police would call him
and that he should take time of 3 to 4 days.
286.1 PW38, in para 8 of his evidence has again
th
deposed that he received a call from SIT on 26 August 2009 and
that as per Avi's say, he took time of 2-3 days; that on the very
same day, in the evening, he received call from Avi, who asked
him to come to Sanman Hotel, outside Nerul Railway Station, to
meet an advocate by the name Falguni Brahmabhatt. He has
stated that Ms. Falguni was not his lawyer and that she had come
there to discuss about the police inquiry relating to the encounter;
that he was told that he should only disclose that Pandeyji and
Bheda had come to his shop, had tea and left the shop; that he
should not disclose about the fact that Pandeyji and Bheda were
taken away from outside his shop and that he should state to the
police that he did not know any details about the case. According
to PW38, he was asked to call DCP Prasanna and take his
appointment on the next day. PW38 has stated that on the next
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day, Avi arranged an Indica vehicle to go to the office of the DCP;
th
that on 27 August 2009, he went to the Office of the DCP in the
morning; that he reached the office in the vehicle of advocate
Falguni; that he changed the vehicle at Andheri Seepz and then
went to Powai Police Chowki, where Vinay Ghorpade (PW108)
and Sunil Gaonkar (PW109) were present. He has stated that the
said officers after making inquiries with him, took him to the
th
DCP Office at Bandra, where his statement dated 27 September
2009 was recorded. He has stated that he was there with advocate
Falguni. According to PW38, his statement was recorded under
th
Section 164 Cr.P.C on 4 September 2009 at which time,
advocate Falguni was with him (It is pertinent to note that in both
th
the statements i.e statement dated 27 August 2009 recorded by
th
SIT and the statement dated 4 September 2009 recorded under
Section 164, PW38 has not made any disclosure with respect to
the incident of abduction. PW38 has further deposed in para 9
that after the aforesaid statements were recorded, again his
st
statement was recorded on 1 February 2010 at the DCP Office
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by SIT. He has stated that after recording of his first two
th th
statements i.e statements dated 27 August 2009 and 4
September 2009, he was in contact with Anil Bheda and that Anil
Bheda had told him that he had given his statement and that he
th
too should give his statement. He has stated that on 27 August
th
2009 and at the time of recording of his 164 statement on 4
September 2009, he had given the statement as told by Avi and
advocate Falguni, as he was afraid at that time, since Avi had
visited his house and that to protect his family, he had given the
statement as per their say.
286.2 Pursuant thereto, PW38 was again called by SIT on
th
28 August 2010 for identification of one person by the name
Avi, who was arrested by them. PW38 disclosed that he saw the
said person and identified the same to be Avi. However, on the
earlier occasion when Avi’s photograph was shown to PW38, he
did not identify him. PW38 has disclosed the mobile number of
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Avi as XXXXXX1059. PW38 also gave the two mobile numbers
used by him.
286.3 The evidence of this witness i.e. PW38, that he was
regularly in touch with A4, A14, Avi as well as Falguni is duly
corroborated by the CDRs, which we will reproduce in detail,
when we consider the said circumstance of CDRs. At this stage, it
is pertinent to note, that advocate Falguni had appeared for Tanaji
Desai (A2), Ratnakar Kamble (A3), Akhil Khan (A6) and Vinayak
Shinde (A7) at the time of their remand as well as for Pradeep
Sharma (OA1) in his bail application.
286.4 In his cross-examination, PW38 has stated that from
th st
27 August 2009 till 1 February 2010, he did not make any
th
grievance to anyone with respect to his statement dated 27
August 2009 being made under pressure nor did he file any
application or complaint with respect to the same in the court nor
did he take any advice from any advocate in this regard, nor did
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he write to DCP Prasanna (PW110) that his statement dated 27
August 2009 recorded by SIT was false and made under pressure.
He has stated that he was alone when DCP Prasanna recorded his
th
statement on 27 August 2009 and that he did not disclose to him
that the actual facts were something different and that he was
under pressure, stating otherwise. He has stated that after reading
the contents as typed pursuant to his disclosure, he found the
same to be true and correct, pursuant to which, DCP Prasanna
signed the said statement. He has further admitted that he did not
ask DCP Prasanna to allow him to write on the statement that he
was stating so under pressure, nor did he ask him to cancel the
contents of the statement, nor did he ask DCP Prasanna not to
sign the statement and to score out the portions with which he
was confronted in his cross-examination. He has further admitted
in his cross-examination that he was alone with the learned
Magistrate when his statement was recorded under Section 164
th
Cr.P.C on 4 September 2009 and that his statement was
recorded by the learned Magistrate by way of questions and
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answers and that he did not inform the learned Magistrate that
th
his statement dated 27 August 2009 was recorded under
pressure and its contents were incorrect. In his cross-
examination, he has stated that in 2006, his two mobile numbers
were operational i.e XXXXXX4910 and XXXXXX9531. He has
th
further stated that prior to his meeting on 26 August 2009 with
advocate Falguni Brahmabhatt, he did not have any conversation
th
with her on phone and that he called and spoke to her on 26
August 2009. He has also admitted that he spoke to her on the
next day morning. According to PW38, he had been to the office
th
of SIT on 27 August 2009 for recording his statement at 12:00
noon and that he had not informed DCP Prasanna (PW110) that
he had spoken with advocate Falguni, prior to recording his
statement. He has further admitted that he would talk to advocate
Falguni daily about 2 to 3 times about the case. It is also pertinent
to note that PW38 has admitted in his cross-examination that on
th
27 August 2009, when he went to meet DCP Prasanna, advocate
Falguni was sitting outside and that he had informed DCP
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Prasanna that she was his advocate. He has further admitted that
st nd
he spoke with advocate Falguni on 1 and 2 September 2009
th
and that his statement was recorded by the Magistrate on 4
September 2009. When confronted, he has stated that he did not
th
remember whether he spoke to advocate Falguni on 4 September
2009 at 13:10 hrs and 15:09 hrs. He has admitted that he had
not informed the learned Magistrate that he was giving statement
under pressure of Avi. PW38 has denied the suggestion that
advocate Falguni was his advocate and hence, he was regularly
consulting her. He has also denied the suggestion that he was
consulting her, as the brother of the deceased was pressurising
him to be an eye-witness in the said case. PW38 in his cross-
examination stated that there was no pressure from the
complainant (PW1) to act as a witness in this case nor had PW1
called him and asked him to sign the statement as per his say. He
has further admitted that he had disclosed to SIT that PW1 used
to call him on his mobile and had requested to help him and had
assured him that no trouble would be caused to him, however,
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after refusing any help, he switched-off his mobile. The witness in
his cross-examination has stated that he had not disclosed to SIT
that he was told that he would only disclose that Pandeyji and
Bheda had come to his shop, had tea and then left the shop.
PW38 in para 26 of his cross-examination admitted that to
maintain privacy of his family, he never took any customer to his
house or gave his address and that the day when Avi came to his
residence, he did not give his residential address nor was there
any landline available in his house. He has further admitted that
Avi did not disclose to him that he would send his friend to him
or to his residence. He has further stated in his cross, that on the
day Avi came to his office, as usual, he closed the shop at 20:00
to 20:30 hrs and went home. He has stated that he went to Shabri
Hotel which is the nearest hotel to his shop at Vashi and had
called Avi to Shabri hotel. He has further admitted that when he
called Avi to Shabri hotel, he thought he had come to collect the
stone, however, Avi had not disclose which stone he wanted. He
has further in para 27 of his cross stated that the other two
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persons with Avi at Shabri Hotel were not known to him; that he
did not ask their names nor had he asked Avi why he had brought
the persons with him; and that before the day, he met Avi at
Shabri hotel, he (PW38) knew about Lakhanbhaiya
(Ramnarayan) from PW1. He has further admitted that he had
left Vashi between 2006 to 2009, as he did not wish to be a
witness in the case. PW38 has admitted that he did not witness
th
anything on 11 November 2006 and hence, he did not want to
be a witness, nor was he interested in meeting anyone in
connection with the said case, as he had shifted his residence
between 2006 to 2009 and as such, was taken aback when Avi
disclosed that he wanted to talk about the Lakhanbhaiya case.
He has stated that he declined to talk to Avi about the said case,
as he did not wish to get involved in the same. He has further
admitted that Avi did not disclose to him as to how the case was
restarted and at whose behest and who the witnesses were, nor
that Avi threatened him, however, has denied the suggestion that
it was not true to say that there was no reason for him to get
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afraid. He has stated that as Avi was a stranger for him, he was
worried.
286.5 Although suggestions have been put to the witness
that he agreed to be a witness in the said case, as PW1 had
pressurized him and threatened him with arrest, PW38 has denied
the same. In para 31 of his cross-examination, PW38 has
admitted that from 2006 to 2009, he was not in Mumbai. He has
th th
denied the suggestion that (i) on 26 August 2009 and 27
August 2009, Avi did not meet him; (ii) that he did not call Avi on
th th
26 and 27 ; (iii) that Avi did not provide any Indica car to him;
(iv) that Avi introduced advocate Falguni to him; (v) that Avi did
not visit him for purchase of stone; (vi) that he did not give any
visiting card to Avi; (vii) that Avi is not Santosh Shettiyar; (viii)
that he has named Avi on the say of SIT; (ix) that he did not meet
any person by the name Avi at Sanman Hotel, Shabri Hotel or at
th
Andheri Seepz; (x) that he knew advocate Falguni prior to 27
August 2009; (xi) that Avi did not provide an Indica car to him;
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(xii) that advocate Falguni never asked him not to disclose any
fact about the incident; and (xiii) that he was disclosing the
involvement of Avi and advocate Falguni on the say of SIT.
286.6 Omissions were also brought on record with respect
to the disclosure made by PW38 in his subsequent statement
made before SIT and his earlier statement i.e when he asked Avi
who the two persons were, he disclosed that they were relatives
of police officers, who were in jail, nor did he disclose before the
Magistrate that he was told to go to village for some days. PW38
voluntarily deposed that he was not asked about the same and
hence he did not disclose. He has also admitted that he did not
disclose before the Magistrate in his statement under Section 164
th
dated 4 September 2009, that advocate Falguni was with him,
when his earlier statement was recorded. PW38 in his evidence
voluntarily stated that advocate Falguni was with him at that
time. He has further admitted that he did not tell before the
Magistrate while recording his second statement that after
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recording his first two statements, he was in contact with Anil
th
Bheda on 27 , at the time of recording his statement under
Section 164. He has stated that he had given them the said
statements, as stated by Avi, as he was afraid that Avi had visited
his house and to protect his family, he gave the said statement, as
per their say.
287 The aforesaid evidence of PW38 with respect to
presence of advocate Falguni is corroborated by PW107-Manoj
Chalke, PW109-Sunil Gaonkar and PW110-K.M.M. Prasanna.
288 PW107-Manoj Chalke, in para 85 of his evidence has
stated the names of the advocates who were present at the time of
remand. He has stated the names of the advocates who appeared
for the accused. As far as advocate Falguni Brhamabhatt is
concerned, he has stated that advocate Falguni and advocate
Shetty appeared for other accused persons.
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289 As far as PW109-Sunil Gaonkar is concerned, he has,
in paras 54, 56 and 60 stated the names of the advocates
representing the accused. He has stated that advocate Falguni
Brahmabhatt represented accused Tanaji Desai (A2), Ratnakar
Kamble (A3), Akhil Khan (A6) and Vinayak Shinde (A7) and that
nd
on 22 February 2010, he, API Vinay Ghorpade (PW108) and
SIT's staff were present before the Sessions Court for attending
Bail Application No. 150/2010 filed by Pradeep Sharma (OA1)
through advocate Falguni Brahmabhatt and Shrikant Shivade.
290 The fact that Falguni Brahmabhatt was appearing for
the accused, as deposed to by PW109 has gone unchallenged,
inasmuch as, there is no cross-examination on the said aspect.
291 PW110-K.M.M. Prasanna, in para 59 stated that six
accused were produced before the learned Magistrate, Railway
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Mobile Court, Andheri. He has stated that all accused were
produced in veil, except Pradeep Sharma (OA1). He has stated
that advocate Shivade appeared for Pradeep Sharma (OA1) and
advocate Falguni Brahmabhatt appeared for accused Akhil Khan
(A6), Ratnakar Kamble (A3) and Tanaji Desai (A2) and advocate
Shetty appeared for the rest of the accused. PW110 has further
deposed that advocate Falguni Brahmabhatt had submitted three
applications before the Court, out of which, one was pertaining
to allowing medicines and home food for the appellants/accused;
the second was to allow the appellants/accused to meet their
advocates while in police custody; and the third was regarding
expressing concerns over the security of the appellants/accused.
292 The evidence as stated aforesaid clearly shows that
advocate Falguni was appearing for the accused and that, she was
also interacting with PW38-Dheeraj Mehta. As noted above, the
CDRs of advocate Falguni Brahmabhatt corroborate the
testimony of the aforesaid witnesses. It thus appears from the
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evidence as stated aforesaid that PW38 was indeed being
pressurized to toe a particular line, which was consistent with C.R
th
No. 302/2006. Thus, the statements given by PW38 dated 27
August 2009 recorded under Section 164 by the SIT and
th
statement dated 4 September 2009 recorded by the learned
Magistrate, would explain the circumstances in which the said
statements were made i.e. PW38 has clearly stated in his evidence,
why later, he gave the true and correct statements i.e. after he
spoke to Anil Bheda and after Anil Bheda had revealed the truth
to SIT.
293 According to the prosecution, the additional affidavit
of Pradeep Suryawanshi (A9) would also reveal the manipulations
done by the appellant (A9) to create false evidence. In this
connection, the prosecution relied not only on the additional
affidavit of A9 but also the annexure to the said additional
affidavit i.e statement of API Gangadhar Sawant, fingerprint
expert, CID. Learned counsel for the appellant (A9) has not
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denied filing of the additional affidavit during the course of the
argument nor has he denied the annexures to the said additional
affidavit.
294 It is pertinent to note that the said additional affidavit
was filed by Pradeep Suryawanshi (A9) in the writ petition filed
by PW1 i.e Writ Petition No. 2743/2006. To the said additional
affidavit, he annexed the statement of Gangadhar Sawant,
fingerprint expert, CID. It is pertinent to note that the
fingerprint expert who examined the fingerprints on the revolver
from which Ramnarayan allegedly fired on the day of the incident
th
i.e. 11 November 2006, is Gangadhar Sawant and that the said
fingerprint expert in his report, has stated, “no fingerprints
found”. It appears that subsequently, after almost three years of
the registration of C.R No. 302/2006, when investigation was
being conducted by the Oshiwara Police Station and when
Pradeep Suryawanshi (A9) was PI of D.N. Nagar Police Station,
Andheri, A9 obtained a statement of the said witness i.e
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th
Gangadhar Sawant. The said statement is dated 27 October
2009. The statement of Gangadhar Sawant was annexed to the
additional affidavit by A9 to show why fingerprints were not
visible. Although A9 was PI of D.N. Nagar Police Station,
Andheri and the investigation of C.R No. 302/2006 was being
done by Oshiwara Police Station, despite the same, A9 obtained
the said statement after three years, seeking to explain why
th
fingerprints were not visible on 11 November 2006 on the
weapon allegedly used by the deceased. The attempt appears to
be clearly to create false evidence.
295 It is also pertinent to note that A9 recorded the
th
statement of Ganesh Iyer (PW2) dated 14 March 2007 (161
statement) and took his signature on the said statement, although
the IO in the said case at the relevant time, was PI Dilip Patil.
We have also earlier noted that A9 was convicted for contempt of
the Court because of the threats extended by him to the learned
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Magistrate, post her submitting a report to the High Court that it
was not a genuine encounter, but was a fake encounter.
296 Thus, from the evidence on record, it is clearly
evident that some of the appellants/accused were directly or
indirectly trying to put pressure on witnesses to refrain from
disclosing the truth. Most of the accused in this case, are police
personnel, and as such, in cases such as these, it is difficult to find
witnesses come forward and if they do disclose, all kinds of
influence/pressure is exerted not to speak the truth. The evidence
on record coupled with the CDRs, shows that the advocate for
OA1 and A4 and others was present with PW38 at the time of
recording of his statement.
297 According to the prosecution, all the aforesaid
circumstances have been duly corroborated by CDRs of the
accused. Hence, we now propose to deal with the last
circumstance relied upon by the prosecution, i.e. CDR, which
again clearly points to the complicity of the appellants/accused.
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vii. CALL DETAIL RECORDS (`CDR’)
298 Learned counsel for the appellants/accused raised
question on the admissibility of the SDR/CDR evidence led
through the Nodal Officers and some even disputed using the
mobile numbers, as alleged by the prosecution. We, in the facts
have no hesitation in relying on the said CDR evidence. Learned
counsel for the appellants/accused also submitted that in the
absence of Section 65B Certificate, the evidence adduced cannot
be relied upon.
299 Per contra, Dr. Chaudhry, learned counsel for the
appellant in Criminal Appeal No.854/2013 and Mr. Chavan,
learned Spl. P.P. submitted that first and foremost, no objection
with regard to Section 65B Certificate was raised during trial,
much less, when the Nodal Officers were examined and as such,,
the accused are now estopped from raising the ground of Section
65B.
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a. Law vis-a-vis CDR
300 The Apex Court in Sundar @ Sundarrajan versus
21
State by Inspector of Police , has in detail considered the
admissibility of CDRs; and how evidence of CDR is to be
considered i.e. the law as it then stood, at the time of trial.
The relevant paragraphs are paras 31 and 32 of the said
judgment, which read thus:
“31. One of the earliest decisions on the provision was of a
two judge bench of this Court in State (NCT of Delhi) v.
Navjot Sandhu-(2005) 11 SCC 600, where the Court held
that Section 65B was only one of the provisions through
which secondary evidence by way of electronic record could
be admitted and that there was no bar on admitting evidence
through other provisions. The Court noted that:
150. According to Section 63, “secondary evidence”
means and includes, among other things, ‘copies made
from the original by mechanical processes which in
themselves insure the accuracy of the copy, and copies
compared with such copies’. Section 65 enables secondary
evidence of the contents of a document to be adduced if
the original is of such a nature as not to be easily movable.
It is not in dispute that the information contained in the
call records is stored in huge servers which cannot be
easily moved and produced in the court. That is what the
High Court has also observed at para 276. Hence,
21 2023 SCC OnLine 310
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printouts taken from the computers/servers by mechanical
process and certified by a responsible official of the
service-providing company can be led in evidence through
a witness who can identify the signatures of the certifying
officer or otherwise speak of the facts based on his
personal knowledge. Irrespective of the compliance with
the requirements of Section 65-B, which is a provision
dealing with admissibility of electronic records, there is no
bar to adducing secondary evidence under the other
provisions of the Evidence Act, namely, Sections 63 and
65. It may be that the certificate containing the details in
sub-section (4) of Section 65-B is not filed in the instant
case, but that does not mean that secondary evidence
cannot be given even if the law permits such evidence to
be given in the circumstances mentioned in the relevant
provisions, namely, Sections 63 and 65.
(emphasis supplied)
32. The principle which was enunciated in Navjot Sandhu was
overruled by a three judge bench of this Court in Anvar P.V.
where it was held that:
22. The evidence relating to electronic record, as noted
hereinbefore, being a special provision, the general law
on secondary evidence under Section 63 read with
Section 65 of the Evidence Act shall yield to the same.
Generalia specialibus non derogant, special law will
always prevail over the general law. It appears, the court
omitted to take note of Sections 59 and 65-A dealing
with the admissibility of electronic record. Sections 63
and 65 have no application in the case of secondary
evidence by way of electronic record; the same is wholly
governed by Sections 65-A and 65-B. To that extent, the
statement of law on admissibility of secondary evidence
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pertaining to electronic record, as stated by this Court in
Navjot Sandhu case, does not lay down the correct legal
position. It requires to be overruled and we do so. An
electronic record by way of secondary evidence shall not
be admitted in evidence unless the requirements under
Section 65-B are satisfied. Thus, in the case of CD, VCD,
chip, etc., the same shall be accompanied by the
certificate in terms of Section 65-B obtained at the time
of taking the document, without which, the secondary
evidence pertaining to that electronic record, is
inadmissible.”
(emphasis supplied)
301 It is pertinent to note that the Apex Court judgement
th
dated 4 August 2005 in Navjot Sandhu was subsequently
th
overruled in Anvar’s case on 18 September 2014. According to
the learned Spl.P.P. since, the last witness was recorded in 2012,
the law governing 65B certificates will have to be interpreted, as
it then stood i.e. at the time of recording the evidence at the trial
stage, i.e. in consonance with the ruling in Navjot Sandhu’s case,
which relaxed the need for a Section 65B Certificate, certificate
for proving electronic records.
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302 The Apex Court in Sonu @ Amar v. State of
22
Haryana , was called upon to consider whether the judgment in
Anvar (Supra) should be retrospectively applied or whether it
should find a prospective application. Accordingly, in para 40,
the Apex Court held as under:
| This Court did not apply the principle of prospective | |||||||
|---|---|---|---|---|---|---|---|
| overruling in | Anvar case | [ | Anvar P.V | . v. | P.K. Basheer | , (2014) 10 | |
| SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : | |||||||
| (2015) 1 SCC (L&S) 108] . The dilemma is whether we | |||||||
| should. This Court in |
| v. | State of A.P. | [ |
|---|
| , (2014) 6 SCC 537 : (2014) 2 | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| SCC (L&S) 305] held that an earlier judgment would be | |||||||||||||
| prospective taking note of the ramifications of its | |||||||||||||
| retrospective operation. If the judgment in | Anvar | [ | Anvar P.V. | v. | |||||||||
| , (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : | |||||||||||||
| (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] is applied | |||||||||||||
| retrospectively, it would result in unscrambling past | |||||||||||||
| transactions and adversely affecting the administration of | |||||||||||||
| justice. As | Anvar case | [ | Anvar P.V. | v. | P.K. Basheer | , (2014) 10 | |||||||
| SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : | |||||||||||||
| (2015) 1 SCC (L&S) 108] was decided by a three-Judge | |||||||||||||
| Bench, propriety demands that we refrain from declaring that | |||||||||||||
| the judgment would be prospective in operation. We leave it | |||||||||||||
| open to be decided in an appropriate case by a three-Judge | |||||||||||||
| Bench. In any event, | this question is not germane for | ||||||||||||
| adjudication of the present dispute | in view of the adjudication | ||||||||||||
| of the other issues against the accused. |
22 (2017) 8 SCC 570.
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303 Since, the question was left open in Sonu (Supra), the
aforementioned legal labyrinth of the 65B certificate, was finally
navigated in Sundarrajan (supra), where the Apex Court held in
para 44 as under:
“44. Therefore, we are inclined to agree with the ratio in
Sonu by not allowing the objection which is raised at a
belated stage that the CDRs are inadmissible in the absence
of a Section 65B certificate, especially in cases, where the
trial has been completed before 18 September 2014, i.e.
before the pronouncement of the decision in Anvar P.V..
However, we are also mindful of the fact that the instant
matter involves the death sentence having been awarded.”
304 To recapitulate the foregoing, it was canvassed in
Sonu, that there are two categories of objections which can be
raised regarding the admissibility of documents, the first category
is, where the document is per se inadmissible i.e. inherently
inadmissible; and, the second category is, where the objection is
regarding the mode of proof, which is procedural. In the latter
case, if the objection is raised at any stage subsequent to the
marking of the document as an exhibit, the said objection
regarding the mode of proof cannot be allowed. It was held, that
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the crucial test, is whether the parties tendering the evidence
would have had the opportunity to cure the defect by resorting to
such mode of proof as would be regular, if such an objection was
raised at the time of marking such documents as exhibits.
305 In this connection, it would be apposite to place
reliance on Sonu (Supra), in particular, paragraph 32, of the said
judgment:
“32. It is nobody's case that CDRs which are a form of
electronic record are not inherently admissible in
evidence. The objection is that they were marked before
the trial court without a certificate as required by Section
65-B(4). It is clear from the judgments referred to supra
that an objection relating to the mode or method of proof
has to be raised at the time of marking of the document as
an exhibit and not later. The crucial test, as affirmed by
this Court, is whether the defect could have been cured at
the stage of marking the document. Applying this test to
the present case, if an objection was taken to the CDRs
being marked without a certificate, the Court could have
given the prosecution an opportunity to rectify the
deficiency. It is also clear from the above judgments that
objections regarding admissibility of documents which are
per se inadmissible can be taken even at the appellate
stage. Admissibility of a document which is inherently
inadmissible is an issue which can be taken up at the
appellate stage because it is a fundamental issue. The
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mode or method of proof is procedural and objections, if
not taken at the trial, cannot be permitted at the appellate
stage. If the objections to the mode of proof are permitted
to be taken at the appellate stage by a party, the other side
does not have an opportunity of rectifying the
deficiencies. The learned Senior Counsel for the State
referred to statements under Section 161 CrPC, 1973 as
an example of documents falling under the said category
of inherently inadmissible evidence. CDRs do not fall in
the said category of documents. We are satisfied that an
objection that CDRs are unreliable due to violation of the
procedure prescribed in Section 65-B(4) cannot be
permitted to be raised at this stage as the objection relates
to the mode or method of proof.” (emphasis supplied)
306 It is thus evident from the aforesaid judgments and in
particular, the judgment of the Apex Court in the case of Sundar
@ Sundarrajan (supra), that an objection that the CDR’s are
inadmissible in the absence of a 65B Certificate, if raised at a
belated stage, will not be allowed in cases where the trial has been
th
completed before 18 September 2014. It is pertinent to note
that the last witness was recorded on 20 February 2012 and the
th
judgment was delivered on 12 July 2013. Thus, in the present
case, we hold that the CDRs can be looked into, the same having
being exhibited through Nodal Officers without any objection.
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307 We now propose to consider the evidence adduced by
the prosecution, in support of the said CDR.
b. Evidence of nodal officers
308 The prosecution in order to prove the CDR has relied
on the following Nodal Officers; Mr. Changdeo Haribhau Godse,
(PW54); Mr. Vikas Narayan Phulkar (PW97); Mr. Rakeshchandra
Rambuz Prajapati (PW62); Mr. Yogesh Shreekrushna Rajapurkar
(PW65), Mr. Shekhar Vinayak Palande (PW69), Mr. Divakar
Mohan Rao (PW85) and Mr. Rajesh Sampatrao Gaikwad
(PW89).
309 SIT had sent request letters and sought mobile
numbers of the following persons:
| Sr.<br>No. | Name | Mobile Number | Registered Owner |
|---|---|---|---|
| 1. | Pradeep Sharma (OA1) | XXXXXX2987 | Hitesh Solanki<br>(A5) |
| 2. | Tanaji Desai (A2) | XXXXXX1323 | Own name |
| 3. | Ratnakar Kamble (A3) | XXXXXX3457 | Own name |
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| 4. | Shailendra Pandey @<br>Pinky (A4) | XXXXXX9023<br>XXXXXX6311<br>XXXXXX1117 | Own name<br>Osman<br>Shaikh(PW88)<br>Mehmood<br>Shaikh(PW96) |
|---|---|---|---|
| 5. | Hitesh Solanki (A5) | XXXXXX1156-Loop<br>XXXXXX5068<br>XXXXXX5874<br>XXXXXX5805<br>XXXXXX8104<br>XXXXXX5118-<br>Vodafone | Own name<br>Own name<br>Own name<br>Own name<br>Own name<br>Shaikh Kaider |
| 6. | Akhil Shirin Khan @ Bobby<br>(A6) | XXXXXX8070 | Own name |
| 7. | Vinayak Shinde@ Veenu<br>(A7) | XXXXXX0551 | Avinash B. Shinde<br>(Brother) |
| 8. | Pradeep Suryawanshi @<br>Nana (A9) | XXXXXX6442 | Own name |
| 9. | Nitin Sartape (A11) | XXXXXX2052 | Own name |
| 10. | Devidas Sakpal (A13) | XXXXXX7293 | Own name |
| 11. | Janardan Bhanage (A14) | XXXXXX6791 | Ashok Sawant |
| 12. | Dilip Sitaram Palande<br>(A15) | XXXXXX3538 | Own name |
| 13. | Prakash Kadam (A16) | XXXXXX5392 | Own name |
| 14. | Ganesh Harpude (A17) | XXXXXX8210 | Own name |
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| 15. | Anand Patade (A18) | XXXXXX2362 | Mangesh Sawant |
|---|---|---|---|
| 16. | Sandip Sardar (A20) | XXXXXX3395 | Own name |
| 17. | Arvind Sarvankar (A22) | XXXXXX6188 | Own name |
| 18. | Ramprasad Gupta (PW1) | XXXXXX6490<br>XXXXXX0012 | Own name |
| 19. | Ganesh Iyer (PW2) | XXXXXX5384<br>XXXXXX4804 | Own name |
| 20. | Shyamsunder Gupta<br>(PW3) | XXXXXX6540<br>XXXXXX4123 | Own name |
| 21. | Ramnarayan Gupta<br>(deceased) | XXXXXX8877 | Anil Bheda |
| 22. | Anil Bheda | XXXXXX3863<br>XXXXXX6351 | Own name<br>Own name |
| 23. | Shankar @ Girish<br>Dalsingh @ Nepali<br>(PW57) | XXXXXX9998 | Own name |
| 24. | Dheeraj Mehta<br>(PW38) | XXXXXX9531<br>XXXXXX4910 | Own name |
| 25. | Anant Patil (PW104) | XXXXXX3281 | Own name |
| 26. | Subhash Patel @ Lefty<br>(Informer) | XXXXXX2771<br>XXXXXX5550<br>XXXXXX0768<br>XXXXXX7645 | Naresh<br>Chandurkar<br>Chandan Singh<br>Sairaj Ansari<br>Radha Indulkar |
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| 27. | Ramrajpal Singh | XXXXXX3799 | Own name |
|---|---|---|---|
| 28. | Bipin Bihari (PW78) | XXXXXX3333 | Novex<br>Communication<br>Pvt. Ltd. |
| 29. | Geetanjali Datar<br>(PW68) | XXXXXX2638 | Shrikrushna Datar |
| 30. | Falguni Brahmabhatt | XXXXXX0500 | Own name |
| 31. | Mahesh Muley (PW6) | XXXXXX8646 | Own name |
| 32. | Amit Ashok<br>Jambotkar (PW8) | XXXXXX8555 | Own name |
| 33. | Santosh Shetiyar | XXXXXX1059 | Ajit Soman |
| 34. | Harishankar Sharma | XXXXXX4570 | Own name |
PW54 - Changdeo Haribhau Godse:
310 PW54 - Changdeo Haribhau Godse, was working as
an Alternate Nodal Officer in Vodafone India Limited (presently
Vodafone ESSAR Limited). As a Nodal Officer he provided
information relating to mobile phones to Law Enforcement
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Agency i.e. subscribers details, call data record, customer
application form, payment details etc. He has stated that if the
data is required by Law Enforcement Agency, a request is made to
their I.T. Department to retrieve the data and if it is beyond the
period of one year, the CDR is automatically stored in their main
server and if there is a system failure, then the data is not lost
since there is back up system provided for. He has further stated
that the data includes incoming calls and outgoing calls as well as
incoming and outgoing SMS and that there is no manual
intervention or automatic intervention in recording of the said
data. The said witness has in his evidence stated that pursuant to
the letters addressed by SIT, he provided the following details:
| Sr.<br>No. | Request Letter for Mobile<br>Number by<br>SIT | Dated | Information Provided by<br>the Nodal<br>Officer | Dated |
|---|---|---|---|---|
| 1. | Exhibit. 398<br>Letter O. W. No. 70/ DCP/<br>Zone - IX/ 2009<br>Sub.: Provide Information<br>regarding<br>mobile Number -<br>XXXXXX3799 - Owner -<br>Ramrajpal Singh | 12.10.<br>2009 | Exhibit 399 (colly)<br>Period - 05.11.2006 to<br>30.11.2006 | 17.02.<br>2010 |
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| 2. | Exhibit. 400<br>Letter O. W. No. 46/ DCP/<br>SIT/ 2009<br>Sub.: Provide Information<br>regarding<br>mobile Number along with<br>tower location<br>XXXXXX 5384 - Owner -<br>Mr. Ganesh R. Iyer<br>(PW2), Exh. 148<br>XXXXXX4804 - Owner | 25.09.<br>2009 | Exhibit 401 (colly)<br>Period-10.11.2006-<br>13.11.2006<br>Information requested<br>by: Mr. K. M.<br>Mallikarjuna Prasanna<br>(PW110) | 17.02.<br>2010 |
|---|---|---|---|---|
| 3. | Exhibit. 402<br>Letter O. W. No. 231/ DCP/<br>SIT/ 2010<br>Sub.: Providing hard copies of<br>information<br>already sent through email<br>Ref: Letter O. W. No. 171/<br>DCP/ SIT/<br>2010 Dt. 03.03.2010<br>XXXXXX3281 - Owned and<br>used by Mr. Anant Tukaram<br>Patil (PW104)<br>XXXXXX5118 - used by<br>Hitesh Shantilal Solanki (A5)<br>but registered in the name of<br>Shaikh Kaider | 22.03.<br>2010 | Exhibit 403 (colly)<br>Period-10.11.2006-<br>16.11.2006<br>(PW104)<br>Exhibit 404 (colly) -<br>Period-10.11.2006 to<br>16.11.2006 -(A5) | |
| 4. | Exhibit.405<br>Letter O. W. No. 81/ DCP/<br>SIT/ 2010<br>Sub.: Providing details of Cell<br>ID and Tower Locations | 11.06.<br>2010 | Exhibit 406 | 06.12.<br>2010 |
| 5. | Exhibit.407<br>Letter O. W. No. 509/ DCP/<br>SIT/ 2010<br>Sub.: Providing Information | 23.08.<br>2010 | Exhibit 408 (colly)<br>Period - 09.11.2006 to<br>30.11.2006 -(A6)<br>Exhibit 409 (colly) - |
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| regarding<br>Communication details and<br>subscriber<br>details of mobile Number<br>Ref: HC - Order - Dated<br>16.08.2010 in<br>WP/2473/2006 in CR.no.<br>246/09<br>XXXXXX1117 - registered in<br>the name of<br>Mehmud Shaikh (PW96) and<br>used by<br>Shailendra Pandey @ Pinky<br>(A4)<br>XXXXXX8070 - Akhil Khan<br>@ Bobby (A6)<br>XXXXXX0551 - registered in<br>the name of<br>Avinash Shinde and used by<br>Vinayak<br>Babasaheb Shinde @ Veenu<br>(A7)<br>XXXXXX2771 - registered in<br>the name of<br>Ramesh Chandurkar (PW12)<br>and used by<br>Subhash R. Patel @ Lefty<br>XXXXXX511 - Hitesh<br>Shantilal Solanki (A5)<br>but registered in the name of<br>Shaikh Kaider | Period-09.11.2006 to<br>30.11.2006- (A7)<br>Exhibit 410 (colly) -<br>Period - 09.11.2006 to<br>30.11.2006- Lefty<br>Exhibit 411 (colly) -<br>Period - 09.11.2006 to<br>30.11.2006-(A5) | |||
|---|---|---|---|---|
| 6. | Exhibit. 412<br>Letter O. W. No. 532/ DCP/<br>SIT/ 2010<br>Sub.: Providing SDR of mobile<br>Number -<br>XXXXXX5118 - Hitesh | 02.09.<br>2010 | Exhibit 413 (colly) | 06.09.<br>2010 |
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| Shantilal Solanki (A5)<br>but registered in the name of<br>Shaikh Kaider | ||||
|---|---|---|---|---|
| 7. | Exhibit. 414<br>Letter O. W. No. 528/ DCP/<br>SIT/ 2010<br>Sub.: Providing hard copies of<br>CDR and<br>SDR of mobile Number -<br>XXXXXX1117-<br>XXXXXX6791 - Janardan<br>Tukaram Bhanage (A14) in the<br>name of Ashok Sawant<br>(PW74)<br>XXXXXX5118 – Hitesh<br>Shantilal Solanki (A5)<br>but registered in the name of<br>Shaikh Kaider | 02.09.<br>2010 | Exhibit 415 (colly)<br>Exhibit 416 (colly) -<br>Period - 13.08.2009 to<br>05.09.2009-<br>XXXXXX1117<br>Exhibit 417 (colly) -<br>Period - 13.08.2009 to<br>05.09.2009 - (A14) | |
| 8. | Exhibit. 418<br>Letter O. W. No. 535/ DCP/<br>SIT/ 2010<br>Sub.: Providing hard copies of<br>CDR and<br>SDR of mobile Number -<br>XXXXXX1059 - registered in<br>the name of Ajit<br>Soman and used by Santosh<br>Shettiyar | 03.09.<br>2010 | Exhibit 419 (colly) -<br>Period - 13.08.2009 to<br>05.09.2009 -<br>XXXXXX1059 | |
| 9. | Exhibit. 420<br>Letter O. W. No. 573/ DCP/<br>SIT/ 2010<br>Sub.: Providing details of<br>tower location of<br>concern cell ids | 01.10.<br>2010 | Exhibit 421 (colly) | 06.10.<br>2010 |
| 10. | Exhibit. 422<br>Letter O. W. No. 696/ DCP/ | 16.12.<br>2010 | Exhibit 423 |
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| SIT/ 2010<br>Sub.: Providing details of Cell<br>id and tower locations. | ||||
|---|---|---|---|---|
| 11. | Exhibit. 424<br>Letter O. W. No. 158/ DCP/<br>SIT/ 2011<br>Sub.: Providing details of Cell<br>id and tower<br>locations. | 15.07.<br>2011 | Exhibit 425 (colly) | |
| 12. | Exhibit. 426<br>Letter O.W. No.<br>161/DCP/SIT/2011<br>Sub.: Providing details of Cell<br>id and tower locations. | 18.07.<br>2011 | Exhibit 427(colly) | 26.07.<br>2011 |
| 13. | Exhibit. 428<br>Letter O. W. No. 171/SP/<br>SIT/2011<br>Sub.: Providing details of Cell<br>id and tower locations. | 02.08.<br>2011 | Exhibit 429 (colly) | 05.08.<br>2011 |
| 14. | Exhibit. 430<br>Letter O. W. No. 192/SP/ SIT/<br>2011<br>Sub.: Provide SDR of Mobile<br>Numbers<br>XXXXXX2771 - registered in<br>the name of<br>Naresh Chandurkar (PW12)<br>and used by<br>Subhash R. Patel @ Lefty<br>XXXXXX8070 - Akhil Khan<br>@ Bobby (A6) | 09.09.<br>2011 | Exhibit 431 (colly) | 09.09.<br>2011 |
| 15. | Exhibit. 432 | 09.09. | Exhibit. 433(colly) | 28.09. |
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| Letter O. W. No. 189/SP/ SIT/<br>2011<br>Sub.: Provide CDR & SDR of<br>Mobile<br>Numbers<br>XXXXXX0500 - Falguni<br>Brahmabhatt | 2011 | Period - 01.08.2009 to<br>31.01.2010 - Falguni<br>Brahmabhatt | 2011 | |
|---|---|---|---|---|
| 16. | Exhibit. 434 (colly)<br>Letter O.W. No. 252/ SP/ SIT/<br>2011<br>Sub.:Provide certified hard<br>copies of<br>tower locations and coverage<br>area of Cell ids<br>Ref.: Letter O.W. No.<br>573/DCP/ SIT/ 2010<br>Dt. 01.10.2010 | 24.10.<br>2011 | Exhibit. 435 (colly) | |
| 17. | Exhibit. 436<br>Letter O. W. No. 253/ SP/ SIT/<br>2011<br>Sub.: Provide certified hard<br>copies of<br>tower locations and coverage<br>area of Cell ids | 24.10.<br>2011 | Exhibit. 437 (colly) | 10.11.<br>2011 |
| 18 | Exhibit. 438<br>Letter O. W. No. 255/ SP/ SIT/<br>2011<br>Sub.:Provide certified hard<br>copies of<br>tower locations and coverage<br>area of Cell ids<br>Ref.: Letter O. W. No.<br>696/DCP/ SIT/ 2010<br>Dt. 16.12.2010 | 24.10.<br>2011 | Exhibit. 439 | 10.11.<br>2011 |
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| 19 | Exhibit. 440<br>Letter O. W. No. 257/ SP/ SIT/<br>2011<br>Sub.: Provide certified hard<br>copies of<br>tower locations and coverage<br>area of Cell ids<br>Ref.: Letter O. W. No.<br>171/DCP/ SIT/ 2011<br>Dt. 02.08.2011 | 24.10.<br>2011 | Exhibit. 441 (colly) | 10.11.<br>2011 |
| 20. | Exhibit. 442<br>Letter O. W. No. 258/ SP/ SIT/<br>2011<br>Sub.: Provide certified hard<br>copies of<br>tower locations and coverage<br>area of Cell ids<br>Ref.: Letter O. W. No.<br>161/DCP/ SIT/ 2011<br>Dt. 18.07.2011 | 24.10.<br>2011 | Exhibit. 443 (colly) | 10.11.<br>2011 |
| 21 | Exhibit. 444<br>Letter O. W. No. 160/ DCP/<br>SIT/ 2011<br>Sub.: Providing hard copy of<br>SDR and<br>CDR of Mobile Number<br>XXXXXX6351-Anil Bheda | 18.07.<br>2011 | Exhibit. 445 (colly)<br>Period-01.02.2011 to<br>18.07.2011 - Anil Bheda | |
| 22 | Exhibit. 446<br>Letter O. W. No.<br>269/SP/SIT/2011<br>Sub.: Provide SDR of Mobile | 31.10.<br>2011 | Exhibit. 447(colly) |
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| number<br>XXXXXX5550 - registered in<br>the name of<br>Chandan Singh and used by<br>Subhash R.<br>Patel @ Lefty<br>XXXXXX0768 - registered in<br>the name of<br>Sairaj Ansari and used by<br>Subhash R. Patel<br>@ Lefty | ||||
|---|---|---|---|---|
| 23 | Exhibit. 448<br>Letter O. W. No. 225/ SP/ SIT/<br>2011<br>Sub.: Provide SDR of Mobile<br>number<br>XXXXXX7645 - registered in<br>the name of<br>Radha Indulkar and used by<br>Subhash R.<br>Patel @ Lefty | 29.09.<br>2011 | Exhibit. 449 (colly) | |
| 24 | Exhibit. 450<br>Letter O. W. No. 227/ SP/ SIT/<br>2011<br>Sub.: Provide original<br>subscriber’s<br>application forms of mobile<br>user<br>Radha Indulkar | 29.09.<br>2011 | Exhibit. 451 (colly) | |
| 25. | Exhibit. 452<br>Letter O. W. No. 235/ SP/ SIT/<br>2011<br>Sub.: Provide original | 29.09.<br>2011 | Exhibit. 453(colly) -<br>Akhil Shirin Khan<br>-Naresh Chandurkar<br>-Manoj Kambale |
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| subscriber’s<br>application forms of mobile<br>user<br>Akhil Shirin Khan, Naresh<br>Chandurkar,<br>Manoj Kambale, Mehmood<br>Shaikh, Ajit<br>Soman, Ashok Sawant | -Mehmood Shaikh<br>- Ajit Soman<br>-Ashok Sawant | |||
|---|---|---|---|---|
| 26. | Exhibit. 454<br>Letter O. W. No. 240/DCP/<br>SIT/ 2010<br>Sub.: Providing hard copies of<br>information<br>already sent through email<br>Ref.: Letter O. W. No. 128/<br>DCP/ SIT/<br>2010 Dt. 09.02.2010<br>XXXXXX0551 - registered in<br>the name of<br>Avinash Shinde and used by<br>Vinayak<br>Babasaheb Shinde @ Veenu<br>(A7) | 23.03.<br>2010 | Exhibit. 455(colly)<br>Period - 10.11.2006 to<br>16.11.2006-(A7) | |
| 27. | Exhibit. 456<br>Letter O. W. No. 12/ DCP/<br>SIT/ 2011<br>Sub.: Providing details of Cell<br>ID and tower locations | 29.01.<br>2011 | Exhibit. 457 | |
| 28. | Exhibit. 458<br>Letter O. W. No. 261/ DCP/<br>SIT/ 2010<br>Sub.: provide details of the<br>Cell IDs and<br>tower locations. | 26.03.<br>2010 | Exhibit. 459 (Colly) | |
| 29. | Exhibit. 460<br>Letter O. W. No. 149/ DCP/ | 20.02. | Exhibit. 461 (Colly) | 11.03. |
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| SIT/ 2010<br>Sub.: Provide details of the<br>Cell IDs and<br>tower locations. | 2010 | 2010 | ||
|---|---|---|---|---|
| 30. | Exhibit. 462<br>Letter O. W. No. 159/ DCP/<br>SIT/ 2010<br>Sub.: Provide details of the<br>Cell IDs and<br>tower locations. | 01.03.<br>2010 | Exhibit. 463 (Colly) | 11.03.<br>2010 |
| 31 | Exhibit. 464<br>Details of Cell IDs and<br>tower locations,<br>(recorded under 161<br>statement of PW54<br>and corrected copy of<br>Exh. 459) | |||
| 32 | Exhibit. 465 (Colly)<br>CDR details of Mobile<br>Number -<br>XXXXXX0500 -<br>Falguni Brahmabhatt |
The said information supplied was marked as Exhibits
as mentioned herein above. There was no objection with respect
to the marking of the said documents/information provided by
the said witness, raised by the accused.
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1.
PW97 – Vikas Narayan Phulkar
311 Vikas Narayan Phulkar was examined as PW97 by
the prosecution. The said witness was working as an Alternate
Nodal Officer with the Vodafone Company at the relevant time.
He too had provided requisite documents/information as sought
for by the SIT. The said documents/information as sought for as
under:
| Sr.<br>No. | Request Letter for Mobile<br>Number by<br>SIT | Dated | Information Provided<br>by the Nodal<br>Officer | Dated |
|---|---|---|---|---|
| 1 | Exhibit. 422<br>Letter O. W. No. 696/ DCP/<br>SIT/ 2010<br>For providing details of Cell<br>id and tower<br>locations. | 16.12.2010 | Exhibit 423 | |
| 2. | Exhibit. 432<br>Letter O. W. No. 189/ SP/<br>SIT/ 2011<br>For providing CDR & SDR<br>of Mobile<br>Numbers<br>XXXXXX0500 - Falguni<br>Brahmabhatt | 09.09.2011 | Exhibit. 433 (colly)<br>Period - 01.08.2009<br>to<br>31.01.2010 - Falguni<br>Brahmabhatt | |
| 3 | Exhibit. 444<br>Letter O. W. No. 160/ DCP/<br>SIT/ 2011<br>For providing hard copies of<br>SDR and CDR<br>of Mobile Number<br>XXXXX6351-Anil Bheda | 18.07.2011 | Exhibit. 445 (colly) -<br>Period - 01.02.2011<br>to<br>18.07.2011 - Anil<br>Bheda |
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| 4 | Exhibit. 446<br>Letter O. W. No. 269/ SP/<br>SIT/ 2011<br>For providing SDR of<br>Mobile number<br>XXXXXX5550 - Chandan<br>Singh<br>XXXXXX0768 - Sairaj<br>Ansari | 31.10.2011 | Exhibit. 447 (colly) | |
|---|---|---|---|---|
| 5 | Exhibit. 448<br>Letter O. W. No. 225/ SP/<br>SIT/ 2011<br>For providing SDR of<br>Mobile number<br>XXXXXX7645 - registered<br>in the name of<br>Radha Indulkar and used by<br>Subhash R.<br>Patel @ Lefty | 29.09.2011 | Exhibit 449 (colly) | |
| 6 | Exhibit. 452<br>Letter O. W. No. 235/ SP/<br>SIT/ 2011<br>To provide original<br>subscriber’s application<br>forms of mobile user<br>Akhil Shirin Khan, Naresh<br>Chandurkar,<br>Manoj Kambale, Mehmood<br>Shaikh, Ajit Soman, Ashok<br>Sawant | 29.09.2011 | Exhibit. 453 (colly)<br>- Akhil Shirin Khan<br>- Naresh Chandurkar<br>- Manoj Kambale<br>- Mehmood Shaikh<br>- Ajit Soman<br>-Ashok Sawant | |
| 7 | Exhibit. 414<br>Letter O. W. No. 528/ DCP/<br>SIT/ 2010<br>For providing hard copies of<br>CDR and SDR<br>of mobile user -<br>XXXXXX1117-<br>XXXXXX6791 - Janardan<br>Tukaram Bhanage<br>(A14) in the name of Ashok | 02.09.2010 | Exhibit 415 (colly)<br>Exhibit 416 (colly)<br>- Period –<br>13.08.2009 to<br>05.09.2009-<br>XXXXXX1117<br>Exhibit 417 - Period -<br>13.08.2009 to<br>05.09.2009 - (A14) |
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| Sawant (PW74)<br>XXXXXX 5118 - Hitesh<br>Shantilal Solanki (A5)<br>but registered in the name of<br>Shaikh Kaider | ||||
|---|---|---|---|---|
| 8 | Exhibit. 420 (colly)<br>Letter O. W. No. 573/ DCP/<br>SIT/ 2010<br>For providing details of<br>tower locations of<br>concerned cell ids | 01.10.2010 | Exhibit 421 (colly) | 06.10.2010 |
| 9 | Exhibit. 424<br>Letter O. W. No. 158/ DCP/<br>SIT/ 2011<br>For providing details of the<br>mobile Cell ids. | 15.07.2011 | Exhibit 425 (colly) | |
| 10 | Exhibit. 426<br>Letter O. W. No. 161/ DCP/<br>SIT/ 2011<br>For providing details of the<br>mobile Cell ids. | 18.07.2011 | Exhibit 427 (colly) | 26.07.2011 |
| 11 | Exhibit. 440<br>Letter O. W. No. 257/ SP/<br>SIT/ 2011<br>To get certified hard copies<br>of tower locations and<br>coverage area of Cell ids<br>Ref.: Letter O. W. No.<br>171/DCP/ SIT/ 2011<br>Dt. 02.08.2011 | 24.10.2011 | Exhibit. 441 (colly) | 10.11.2011 |
| 12 | Exhibit. 442<br>Letter O. W. No. 258/ SP/<br>SIT/ 2011<br>To get certified hard copies<br>of 'tower locations and<br>coverage area of Cell ids<br>Ref.: Letter O. W. No.<br>161/DCP/ SIT/ 2011<br>Dt. 18.07.2011 | 24.10.2011 | Exhibit. 443 (colly) |
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The said information/certificate as provided has been
duly exhibited through the said witness. Admittedly, there is no
cross-examination with respect to any objection regarding
exhibiting of documents/information supplied by the said witness.
312 Although, the said witness was cross-examined with
respect to certification of electronic records, the said witness has
stated that electronic records are certified only if Law
Reinforcement Agency makes a request to that effect.
PW62 – Rakeshchandra Rambuz Prajapati
313 PW62–Rakeshchandra Rambuz Prajapati, was initially
serving in BPL Mobile Communication Ltd. which was at the
relevant time known as 'Loop Mobile India Limited' and since
October 2008 was serving as a Nodal Officer. He has stated that
information was furnished to the Security Agencies, when sought.
He has stated that on-line CDR is maintained for one year and
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old records are kept in magnetic cassettes as a back-up. The said
witness has supplied following information as sought for by the
SIT.
| Sr.<br>No. | Request Letter for Mobile Number<br>by<br>SIT | Dated | Informa-tion<br>Provided by<br>the Nodal<br>Officer | Dated |
|---|---|---|---|---|
| 1 | Exhibit. 520<br>Letter O. W. No. 115/ DCP/ SIT/<br>2009<br>Sub.: Provide Information<br>regarding<br>incoming and outgoing calls made<br>from &<br>received on cellular nos.<br>Ref.: HC Order Dt. 10.09.2009 in<br>connection with C.W.P 2473/2006<br>XXXXXX1323 - Tanaji B. Desai<br>(A2)<br>XXXXXX2052 - Nitin Sartape<br>(All)<br>XXXXXX7293 - Devidas G.<br>Sakpal (Al3)<br>XXXXXX3538 - Dilip S. Palande<br>(Al5)<br>XXXXXX2362 - registered in the<br>name of<br>Mangesh Sawant and used by<br>Anand Balaji<br>Patade (A18)<br>XXXXXX3395 - Sandeep H.<br>Sardar (A20)<br>XXXXXX6188 -Arvind A.<br>Sarvankar (A22)<br>XXXXXX4570 - Harishankar<br>Sharma | 12.11.2009 | Exhibit. 521<br>(colly) | 30.11.2<br>009 |
| 2 | Exhibit. 522 | 21.12.2009 | Exhibit. 523 | 06.01.2 |
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| Letter O. W. No. 161/ DCP/ SIT/<br>2009<br>Sub.: Provide Details of Mobile<br>No.<br>XXXXXX1323 - Tanaji B. Desai<br>(A2)<br>XXXXXX3457 - Ratnakar G.<br>Kamble (A3)<br>XXXXXX7293 - Devidas G.<br>Sakpal (A13) | (colly) | 010 | ||
|---|---|---|---|---|
| 3 | Exhibit. 524<br>Letter O. W. No. 78/ DCP/ SIT/<br>2010<br>Exhibit. 525 (colly) -Email Dt.<br>06.01.2010<br>Email O.W. No. 04/ DCP/ SIT/<br>2010<br>Exhibit. 527 -Email Dt.<br>06.01.2010<br>Email O.W. No. 05/ DCP/ SIT/<br>2010<br>Exhibit. 529 (colly) - Email<br>Dt.06.01.2010<br>Email O.W. No. 06/ DCP/ SIT/<br>2010<br>Sub.: Providing certified hard<br>copies of<br>CDR & SDR for Letter 5 letter<br>sent by SIT<br>O. W. No. 115/ DCP/ SIT/ 2009<br>Dt.<br>12.11.2009<br>O. W. No. 161/ DCP/ SIT/ 2009<br>Dt.<br>21.12.2009<br>O. W. No. 04/ DCP/ SIT/ 2010 Dt.<br>06.01.2010<br>O. W. No. 05/ DCP/ SIT/ 2010 Dt.<br>. 06.01.2010<br>0. W. No. 06/ DCP/ SIT/ 2009 Dt.<br>06.01.2010 | 26.01.2010 | Exhibit. 526<br>(colly)<br>Exhibit. 528<br>Exhibit. 530 |
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| 4 | Exhibit. 534<br>Letter O. W. No. 235/ DCP/ SIT/<br>2010<br>Sub.: Providing hard copies of<br>information already sent through<br>email<br>Ref.: Letter O.W. No. 138/ DCP/<br>SIT/ 2009<br>Dt. 27.11.2009<br>XXXXXX2987 - used by Pradeep<br>R. Sharma (A1) and registered in<br>the name of Hitesh Solanki (A5) | 22.03.2010 | Exhibit. 535<br>(colly) | 25.03.2<br>010 |
|---|---|---|---|---|
| 5 | Exhibit. 536<br>Letter O. W. No. 79/ DCP/ SIT/<br>2010<br>Sub.: Provide Tower locations and<br>coverage<br>area of cell ID | 26.01.2010 | Exhibit. 537<br>(colly)<br>Reply to the<br>emial dated<br>22.03.2010<br>sent by<br>PW110 via.<br>Email – O.W.<br>No.72/DCP/SI<br>T/2010 | |
| 6 | Exhibit. 538<br>Letter O.W. No. 228/DCP/ SIT/<br>2010<br>Sub.: Provide Tower locations and<br>coverage<br>area of cell ID | 22.03.2010 | Exhibit. 539<br>(colly) | 23.03.2<br>010 |
| 7 | Exhibit. 540 (colly)<br>Email O.W. No. 230/ DCP/ SIT/<br>2010<br>Sub.: Provide lower locations and<br>coverage<br>area of cell ID<br>Email Copy of Exh.538 | 22.03.2010 | Exhibit. 539<br>(colly) | 23.03.2<br>010 |
| 8 | Exhibit. 541 (colly)<br>Email - O.W.No.<br>72/DCP/S1T/2010<br>Email Copy of Exh.536 | 25.01.2010 | Exhibit. 537<br>(colly) | 27.01.2<br>010 |
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| 9 | Exhibit. 542<br>Letter O. W. No. 508/ DCP/ SIT/<br>2010<br>Sub.: information regarding<br>communication<br>details and subscriber details of<br>Mobile<br>Numbers<br>Ref.: HC order dated 16.08.2010<br>in WP/<br>2473/2006 in connection with<br>Cr.no.246/2009<br>XXXXXX1323 - Tanaji B. Desai<br>(A2)<br>XXXXXX3457 - Ratnakar G.<br>Kamble @ Rattu<br>(A3)<br>XXXXXX3395 - Sandeep Hemraj<br>Sardar (A20)<br>XXXXXX3538 - Dilip Sitaram<br>Palande (Al 5)<br>XXXXXX6188 -Arvind Arjun<br>Sarvankar (A22)<br>XXXXXX2987 - used by Pradeep<br>R. Sharma (A1) and registered in<br>the name of Hitesh Solanki (A5)<br>XXXXXX1156 - Hitesh Shantilal<br>Solanki (A5)<br>XXXXXX5068,<br>XXXXXX5874,<br>XXXXXX5805,<br>XXXXXX8104 | 23.08.2010 | Exhibit. 543<br>(colly) | 15.09.2<br>010 |
|---|---|---|---|---|
| 10 | Exhibit. 544<br>Letter O. W. No. 555/ DCP/ SIT/<br>2010<br>Sub.: Provide Information<br>regarding<br>communication details and<br>subscriber<br>details of mobile Numbers<br>Ref: O.W.No. 508/ DCP/ SIT/ | 14.09.2010 |
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| 2010 dated<br>23.082010 | ||||
|---|---|---|---|---|
| 11 | Exhibit. 545<br>Letter O. W. No. 531/DCP/ SIT/<br>2010<br>Sub.: providing CDR and SDR of<br>Mobile<br>user.<br>For Details of Mobile No.<br>XXXXXX6311 - registered in the<br>name of Mr.<br>Mohammad. Usman Iliyas Shaikh<br>(PW88)<br>and used by Shailendra Pandey | 02.09.2010 | Exhibit. 546<br>(colly) | 03.09.2<br>010 |
| 12 | Exhibit. 547<br>Letter O. W. No. 591/ DCP/ SIT/<br>2010<br>Sub.: Tower locations and coverage<br>area of<br>cell ID | 13.10.2010 | Exhibit. 548<br>(colly) | 21.10.2<br>010 |
| 13 | Exhibit. 549<br>Letter O. W. No. 615/ DCP/ SIT/<br>2010<br>Sub.: Providing information<br>regarding<br>communication details of Mobile<br>numbers<br>For Mobile Numbers:<br>XXXXXX1323 - Tanaji B. Desai<br>(A2)<br>XXXXXX3457 - Ratnakar G.<br>Kamble @ Rattu (A3) | 03.11.2010 | Exhibit. 550<br>(colly) | 14.12.2<br>010 |
| 14 | Exhibit. 551<br>Letter O. W. No. 12/ DCP/ SIT/<br>2011<br>Sub.: Providing details of Cell id<br>and tower<br>locations | 29.01.2011 | Exhibit. 552 | 02.02.2<br>011 |
| 15 | Exhibit. 553 | 31.01.2011 | Exhibit. 554 | 10.02.2 |
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| Letter O. W. No. 16/ DCP/ SIT/<br>2011<br>Sub.: Providing details of Cell id<br>and tower<br>locations | (colly) | 011 | ||
|---|---|---|---|---|
| 16 | Exhibit. 555<br>Letter O. W. No. 24/ DCP/ SIT/<br>2011<br>Sub.: Providing details of Cell id<br>and<br>Tower Locations<br>Ref.: Nodal Officers letter<br>LMIL/2011/3017 dated<br>02.02.2011 | 01.03.2011 | Exhibit. 556 | 03.03.2<br>011 |
| 17 | Exhibit. 557<br>Letter O. W. No. 171/SP/ SIT/2011<br>Sub.: Provide details of the mobile<br>Cell ids. | 02.08.2011 | Exhibit. 558<br>(colly) | 04.08.2<br>011 |
| 18 | Exhibit. 559<br>Letter O. W. No. 190/ SP/ SIT/<br>2011<br>Sub.: Provide SDR & CDR of<br>Mobile<br>number<br>Ref.:<br>O.W.No.2459/DCP/Z-9/R/2009<br>dated<br>29.08.2009<br>XXXXXX6490- Mr. Ramprasad<br>Vishwanath Gupta (PW1)<br>(Complainant), Exh. 113 | 09.09.2011 | Exhibit. 560<br>(colly) | 13.09.2<br>011 |
| 19 | Exhibit. 561<br>Letter O. W. No. 250/SP/ SIT/<br>2011<br>Sub.: To get certified hard copies<br>of Tower<br>Locations and coverage area of<br>Cell Ids. | 24.10.2011 | Exhibit. 562<br>(colly) | 04.11.2<br>011 |
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| O.W.No. 79/DCP/SIT/2010 Dt.<br>26.01.2010<br>Nodal Officers letter dated<br>27.01.2010<br>LMIL/2010/1412 | ||||
|---|---|---|---|---|
| 20 | Exhibit. 563<br>Letter O. W. No. 251/SP/ SIT/<br>2011<br>Sub.: To get certified hard<br>copies of tower<br>locations and coverage area of<br>cell ids.<br>Ref.: O.W. No.<br>171/DCP/SIT/2011 Dt.<br>02.08.2011<br>Nodal Officers letter dated<br>04.08.2011<br>LMIL/2010/25500 | 24.10.2011 | Exhibit. 564<br>(colly) | 04.11.<br>2011 |
All the document/information were marked as Exhibits.
314 As far as one discrepancy with respect to Exh.–528 is
concerned, why the said information was supplied has been spelt
out by the said witness and as such there is no discrepancy with
respect to the same. The said witness has also stated that the
certificate is furnished only when called for and in the present
case only once it was sought and hence, the rest of the
information furnished, without certificate. All such
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documents/information furnished by the said witness have been
exhibited without any objection being raised with respect to the
same, that it was without a Section 65B certificate. The said
witness has also explained the discrepancies alleged by the learned
counsel for the appellants-accused, between Exhibits 560 and
597.
PW65 - Yogesh Shrikrishna Rajapurkar
315 PW65 – Yogesh Shrikrishna Rajapurkar, was serving
in Bharti Airtel Limited as an Assistant Nodal Officer, at the
relevant time. He has set out how data is retrieved and how
information is supplied to Law and Enforcement Agency and
how data beyond one year is preserved by I.T. and how the data
is retrieved from the master computer. The said witness has
furnished information/document pertaining to the following
persons:
| No. | Request Letter for Mobile Number by<br>SIT | Dated | Information<br>Provided by the<br>Nodal | Dated |
|---|
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| Officer | ||||
|---|---|---|---|---|
| 1 | Exhibit. 570<br>Letter O. W. No. 227/DCP/ SIT/ 2010<br>Sub.: Providing Tower locations and<br>coverage area of cell ID | 22.03.<br>2010 | Exhibit. 571<br>(colly) | 25.03.<br>2010 |
| 2 | Exhibit. 572<br>Letter O. W. No. 81/DCP/ SIT/ 2010<br>Sub.: Providing details of cell ID and<br>tower locations | 11.06.<br>2010 | Exhibit. 573<br>(colly.) | |
| 3 | Exhibit. 574<br>Letter O. W. No. 596/DCP/ SIT/ 2010<br>Sub.: Providing details of tower locations of<br>concern cell ID’s | 19.10.<br>2010 | Exhibit. 575<br>(colly.) | 26.10.20<br>10 |
| 4 | Exhibit. 576<br>Letter O. W. No. 396/DCP/ SIT/ 2010<br>Sub.: Providing S.D.R. of the mobile nos.<br>XXXXXX4123 (Mr. Shyamsunder<br>Vishwanath<br>Gupta (PW3), Exh. 157) on 11.11.2006 &<br>its date of activation | 19.06.<br>2010 | Exhibit. 577 | 29.06.<br>2010 |
| 5 | Exhibit. 578<br>Letter O. W. No. 228/DCP/ SIT/ 2010<br>Sub.: Providing hard copies of information<br>already sent through email<br>Ref.: O.W. No. 83/ DCP/ SIT/ 2010 Dt.<br>28.01.2010 - as regards to SDR, Date of<br>activation, CDR with cell ID and Tower<br>location | 22.03.<br>2010 | Exhibit. 579<br>(colly.) | |
| 6 | Exhibit. 580<br>Letter O. W. No. 507/DCP/ SIT/ 2010<br>Sub.: providing information regarding<br>communication details & subscriber details of<br>mobile number. | 23.08.<br>2010 | Exhibit.<br>581(colly. | 17.09.<br>2010 |
| 7 | Exhibit. 582<br>Letter O. W. No. 260/DCP/ SIT/ 2010<br>Sub.: Providing hard copies of information<br>already sent through email.<br>XXXXXX0098 - registered in the name of<br>Medha Sawant and used by DCP Sawant | 26.03.<br>2010 | Exhibit. 583<br>(colly.) ) |
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| (Not examined)<br>XXXXXX3333 - Bipin Bihari in the name of<br>Novex Communications Pvt. Ltd.<br>XXXXXX5437- Manoj Wayale<br>XXXXXX7367 - Vishwanath Shetty PW75<br>XXXXXX9023 - Shailendra Pandey (A4)<br>XXXXXX9096 - Arun S. Kaushik<br>XXXXXX7777 - Mohammad Sait | ||||
|---|---|---|---|---|
| 8 | Exhibit. 584<br>Letter O. W. No. 527/DCP/ SIT/ 2010<br>Sub.: Providing CDR and SDR of mobile<br>number XXXXXX9023 (Shailendra D<br>Pandey - (A4) along with cell ID &<br>Tower location | 02.09.<br>2010 | Exhibit. 585<br>(colly.) |
PW69 - Shekhar Vinayak Palande
316 PW69 - Shekhar Vinayak Palande, was serving as a
Nodal Officer in Tata Tele Services, Maharashtra Limited, at the
relevant time. He too has stated how the data is stored and how
the data is made available to Law and Enforcement Agencies.
The said witness has supplied information as sought for by the
SIT of the following persons:
| Sr.No. | Request Letter for<br>Mobile Number<br>by<br>SIT | Dated | Information Provided by<br>the Nodal<br>Officer | Dated |
|---|---|---|---|---|
| 1 | Exhibit. 606<br>Letter O. W. No.<br>529/ DCP/ SIT/<br>2010 | 02.09.<br>2010 | Exhibit. 607 (colly) | 03.09.<br>2010 |
S.Q. Pathan / N.S. Chitnis 642/867
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| Sub.; Providing<br>hard copies of<br>CDR and SDR of<br>mobile user -<br>XXXXXX4910<br>(Mr. Dheeraj<br>Mehta (PW38),<br>Exh.271 |
|---|
The documents/information furnished by this witness
have been exhibited without any objection i.e. there was no
Certificate under Section 65B of the Evidence Act.
316.1 In his cross-examination the said witness has stated
that a certificate is issued, when it is required by the Law and
Enforcement Agencies. The said witness has explained that the
blanks are to the extent of SMS only.
PW85 – Divakar Mohan Rao
317 PW85 – Divakar Mohan Rao was working in Reliance
Communication Limited as a Legal Officer during the period
March 2004 to July 2008. He has stated that in the month of
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2008 he was called by the Railway Mobile Court, Andheri,
Mumbai, pursuant to the summons (Exh. – 650). He has stated
that he was asked to produce call details of Mobile No.
XXXXXX3863 (Anil Bheda); XXXXXX8877 (Ramnarayan
Gupta) for the month of November 2006 and Mobile Number
th
XXXXXX9531 (PW38) for the period 11 November 2006 to
th
13 November 2006. He has stated that he could produce details
of only two numbers i.e. XXXXXX3863 (Anil Bheda);
XXXXXX8877 (Ramnarayan Gupta). He has stated that he
submitted his affidavit alongwith call data record of these two
mobile numbers. He has identified his affidavit which bears his
signature and that its contents were true and correct. The
affidavit was marked as Exh. – 651 and CDR as Exh. – 652
(colly). He has stated that as far as XXXXXX9531 (PW38 –
Dheeraj Mehta) is concerned, he could not furnish his CDR. He
has further stated that he also furnished information of
Ramprasad Gupta (PW1) of his mobile XXXXXX0012 for the
period of November 2006. He has stated that the information
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th th
supplied was during the period 11 November 2006 to 13
November 2006 and that the said CDR were certified by him. He
has further stated that their company preserves data for a period
of one year after which the data is deleted; that High Court had
directed to preserve hard copies and therefore the said data was
preserved by way of hard copies of XXXXXX3863 and
XXXXXX8877; that this Court had issued the said order in the
year 2007 and it was within the period of one year that he took
out the print-outs.
317.1 There is nothing in the cross-examination of the said
witness to disbelieve his testimony.
| Sr.<br>No. | Request Letter for Mobile Number<br>by<br>SIT | Dated | Information Provided by<br>the Nodal<br>Officer | Dated |
|---|---|---|---|---|
| 1 | Exhibit. 650<br>Summons served by Railway Mobile<br>Court, Andheri in 176(1) (a) of Cr.PC<br>inquiry asking to produce call detail<br>records of mobile numbers<br>XXXXXX3863(Anil Bheda)<br>XXXXXX 8877(Ramnarayan) | Exhibit. 652<br>Produced before Railway<br>Mobile Court.,<br>Andheri in 176(1) (a) of<br>Cr.PC inquiry<br>pursuant to summons (Exh.<br>650)<br>Sub.: CDR produced |
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| XXXXXX 9531 | XXXXXX 3863 – Anil<br>Bheda (2006)<br>XXXXXX 8877 -<br>registered in the name of<br>Anil Bheda and used by<br>Ramnarayan (Deseased) |
|---|
PW89 – Rajesh Sampatrao Gaikwad
318 PW89 - Rajesh Sampatrao Gaikwad was serving in
Reliance Communication Limited, Mumbai, as a Nodal Officer in
November 2007. He has stated that in his capacity as a Nodal
Officer, he provided information to Law Enforcement Agencies in
respect of CDR, SDR, Locations and Customers Application
Forms. He has further stated that the record of incoming and
outgoing calls as well as SMS is automatically served in the server
of his office at Navi Mumbai and that there cannot be manual
and technical interference in the data stored on the server and
that there is also a backup system in their office and if there is
any technical failure in the server, to overcome it there is a
backup server and that the data is not lost under these
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circumstances. The said witness has supplied
documents/information pertaining to the following persons:
| Sr.<br>No. | Request Letter for Mobile Number by<br>SIT | Dated | Information<br>Provided by the<br>Nodal<br>Officer | Dated |
|---|---|---|---|---|
| 1 | Exhibit. 676<br>Letter O. W. No. 23/ DCP/ SIT/ 2011<br>Sub.: Provide SDR of mobile number<br>XXXXXX9998 for the month of<br>November 2006 (Mr. Shankar @<br>Girish Dal Singh (PW57) | 01.03.<br>2011 | Exhibit. 677 | 09.03.20<br>11 |
| 2 | Exhibit. 678<br>Letter O. W. No. 26/ DCP/ SIT/ 2011<br>Sub.: Provide details of Cell ID and<br>tower location | 03.03.<br>2011 | Exhibit. 679 | 09.03.20<br>11 |
| 3 | Exhibit. 680<br>Letter 0. W. No. 191/ SP/ SIT/ 2011<br>Sub.: Provide SDR of mobile number<br>as on 11 November 2006<br>XXXXXX 9531 - Dheeraj Mehta<br>(PW38)<br>XXXXXX 8877 - registered in the<br>name of Anil Bheda and used by<br>Ramnarayan (Deseased)<br>XXXXXX 0012 - Adv. Ramprasad<br>Gupta (PWl)<br>XXXXXX 3863 - Anil Bheda (2006) | 09.09.<br>2011 | Exhibit. 681 | 10.09.20<br>11 |
| 4 | Exhibit. 682<br>Letter O. W. No. 695/ DCP/ SIT/ 2010<br>Sub.: Provide CDR reports as per<br>directions of the Hon’ble High Court, as<br>on 11 & 12 November, 2006.<br>November, 2006 | 16.12.<br>2010 | Exhibit. 683<br>(colly.) | 24.12.20<br>10 |
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| 9324378877 - registered in the name of<br>Anil Bheda and used by Ramnarayan<br>(Deseased)<br>XXXXXX3863 - Anil Bheda (2006) | ||||
|---|---|---|---|---|
| Exhibit. 684<br>Letter 0. W. No. 225/ DCP/ SIT/ 2010<br>Sub.: Furnish tower locations and<br>coverage area<br>area ID’s and BTS as on 11.11.2006 | 20.03.<br>2010 | Exhibit. 685 | 29.03.20<br>10 |
The documents furnished by the said witness has been
duly exhibited and no objection has been taken at the time of
exhibiting of the said documents, with respect to want of
certification under Section 65B.
319 From the evidence on record of the Nodal Officers
and other prosecution witnesses, we find that the prosecution has
duly established that the appellants were using the following
mobile numbers. Infact, some of the accused have not disputed
using the mobile numbers as alleged by the prosecution.
320 The following mobile numbers were used by the
appellants/ accused:
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OA1 was using mobile No. XXXXXX2987. The said
-
number stood in A5’s name;
- A2 was using mobile No. XXXXXX1323. The said
number stood in A2’s name;
- A3 was using mobile No. XXXXXX3457. The said
number stood in A3’s name;
- A4 was using mobile No. XXXXXX9023. The said
number stood in A4’s name; A4 was also using mobile No.
XXXXXX1117. The said number stood in the name of PW96-
Mehamood Shaikh;
- A5 was using mobile Nos. XXXXXX1156,
XXXXXX5068, XXXXXX5874, XXXXXX5805 and
XXXXXX8104 and the said numbers stood in A5’s name; A5
was also using mobile No. XXXXXX5118 and the said number
stood in the name of Shaikh Kaider;
- A6 was using mobile No. XXXXXX8070. The said
number stood in A6’s name;
- A7 was using mobile No. XXXXXX0551. The said
number stood in Avinash Shinde’s name;
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- A9 was using mobile No. XXXXXX6442. The said
number stood in A9’s name;
- A11 was using mobile No. XXXXXX2052. The said
number stood in A11’s name;
- A13 was using mobile No. XXXXXX7293. The said
number stood in A13’s name;
- A15 was using mobile No. XXXXXX3538. The said
number stood in A15’s name;
- A17 was using mobile No. XXXXXX8210. The said
number stood in A17’s name;
- A18 was using mobile No. XXXXXX2362. The said
number stood in Mangesh Yashwant Sawant’s name;
- A20 was using mobile No. XXXXXX3395. The said
number stood in A20’s name;
- A22 was using mobile No. XXXXXX6188. The said
number stood in A22’s name. (A22’s appeal stands abated in
view of his demise, during the pendency of his appeal.)
321 If we peruse the CDR furnished by the aforesaid
Nodal Officers, which have been duly exhibited by the aforesaid
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Nodal Officers, it would be evident that the locations of the
accused were as under:
th
Locations of the Accused on 10 November 2006:
I. Between 16:45 to 20:10 hours: A4 (Mobile
XXXXXX9023 standing in his name A4’s name) was outside Anil
Bheda’s house (Sector 29), keeping a watch. Thereafter A2, A3,
A6 and A7 also reached near the house of Anil Bheda.
(i) CDR of A4 (Exh. – 581) Airtel Cell ID locations (Exh. 571)
would show that A4 at around 16:45:06 was next to Abbot
Hotel, Opposite Navratna Hotel, Vashi. There is a call by A4
from XXXXXX9023 (Mobile No. stands in A4’s name) to
9221248858;
(ii) CDR of A2 (Exh. – 543) Loop Cell ID locations would
show that A2 around 19:34:07 was near Corsica, Vashi, Sector
29, Vashi Interior. From the CDR it appears that A2 received a
call on XXXXXX1323 from XXXXXX0502;
(iii) CDR of A3 (Exh. – 543) Loop Cell ID locations would
show that A3 at 19:32:26 was at Shubham, Kopar Khairane.
There is a call by A3 from XXXXXX3457 to XXXXXX8252.;
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(iv) CDR of A6 (Exh. – 408) Vodafone Cell ID locations shows
that A6 at 19:32:02 was at Sector 12, E Near Balaji Garden,
Kopar Khairane. There is call on A6’s number i.e.
XXXXXX8070 by A4;
(v) CDR of A7 (Exh. – 408) Vodafone Cell ID locations would
show that A7 at 19:37:23 was at Sector 29, Vashi, Navi Mumbai.
th
Locations of the Accused on 11 November 2006 :
I. 00:21 hours: While at Mira Bhayandar, A4 called Subhash
Patel @ Lefty (Informer).
(i) CDR of A4 (Exh. – 581) Airtel Cell ID locations (Exh. 571)
would show that A4 at 12:21:49 was at Mira Bhayendar Road.
There is a call made by A4 from XXXXXX9023 to Subhash
Patel @ Lefty;
II. 05:25 or 05:22 hours: While at Mira Bhayandar, A4
called A7, who was at Kalwa, Thane
(i) CDR of A4 (Exh. – 581) Airtel Cell ID locations (Exh. 571)
would show that A4 at 05:25 was at Jayshree Sadan Ekta, Opp.
Sarvoday Complex Near Golden Nest, Mira Bhayander Road.
There is a call made by A4 from XXXXXX9023 to A7;
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(ii) CDR of A7 (Exh. – 408) Vodafone Cell ID locations shows
that A7 at 5:22:02 was at that time between 5:22 to 5:25 at
Manisha Nagar, Opp. National Hotel, Kalwa, Thane;
III. 06:31 to 2:27 hours: A4 and A/7 alongwith A8, A10,
A12 and A21 reached near house of Anil Bheda. During this
time, Subhash Lefty (Informer) was also nearby.
(i) CDR of A4 (Exh. – 581) Airtel Cell ID locations (Exh. 571)
would show that A4 at 06:31 was at Kopar Khairane, Navi
Mumbai. There is a call made by A4 to A7 at 6:31;
(ii) CDR of A7 (Exh. – 408) Vodafone Cell ID locations shows
that A7 at 10:09 was at Plot No.9/10, Sector 19-A, Vashi, Navi
Mumbai;
(iii) CDR of Subhash Lefty (Exh. – 410) Vodafone Cell ID
locations shows that Subhash Lefty at 07:07 was at Sector 12,
Near Balaji Garden, Kopar Khairane, Navi Mumbai. There is a
call by A4 to Subhash Lefty.
IV. 09:04 hours: Deceased called his wife (Subhalakshmi)
from the house of Anil Bheda. Number of Ramnarayan’s wife
XXXXXX5138.
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(i) CDR of Ramnarayan (Exh. – 683) and Cell ID locations
(Exh. 685) is duly corroborated by the evidence of PW1 –
Ramnarayan, who had deposed the number of wife of Lakhan in
his examination-in-chief. The said evidence has gone
unchallenged.
V. 10:29 hours: Ramnarayan called PW38 – Dheeraj from
Anil Bheda’s house.
(i) CDR of Ramnarayan (Exh. – 683) and Cell ID locations
(Exh. 685) is duly corroborated by the evidence of PW1 –
Ramnarayan, reflects the call made by Ramnarayan (deceased) to
PW38 at 10:29 from Agradeep, Sector 14, Vashi, Agra Nalanda,
Thurbhe.;
VI. 12:15 hours: Ramnarayan and Anil Bheda went to PW38
– Dheeraj’s shop as per the evidence of PW40. Even as per the
evidence of PW38, Ramnarayan and Anil Bheda had reached his
shop at around 12:15 p.m.
VII. 12:27 hours: A4 called A7. The said call started at
Sector 29, Vashi and the said call continued for about 553
seconds (Exh. – 581).
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(i) CDR of A4 (Exh. – 581) and Airtel Cell ID locations (Exh.
st
571) shows that A4 at 12:27 was at Office No.110, 1 Floor,
Plot No.14-B, Sector 19, Vashi, Navi Mumbai. There is a call by
A4 to A7 at that time and thereafter at Plot No.30, Sector 2,
Vashi, Navi Mumbai. The said CDR of A4 is duly corroborated by
CDR of A7 (Exh. – 408) and Vodafone Cell ID locations (Exhibits
421 & 406).
VIII. 12:31 – 12:33 hours: After reaching PW38’s shop,
Ramnarayan was waiting outside PW– 38’s shop and called to
different persons from Sector – 9A while he was standing on
road.
(i) CDR of Ramnarayan (Exh. – 683) and Cell ID locations
(Exh. 685) would show that Ramnarayan at 12:31 was at
Anand Niketan CHSL, Plot No.46, Sector 9A, Vashi, Navi
Mumbai. There is a call made by Ramnarayan to
XXXXXX7194. The second call was made by Ramanarayan to
XXXXXX8777 at 12:33, when he was at Anand Niketan
CHSL, Plot No.46, Sector 9A, Vashi, Navi Mumbai;
(ii) CDR of Ramnarayan (Exh. – 683) and Cell ID locations
(Exh. 685) corroborates the same. It is thus evident that till
12:35 Ramnarayan was at Sector 9A, Vashi, Navi Mumbai.
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IX. 12:39 hours: After abduction from Sector 9A, there is
call by A7 to OA1 and by Subhash @ Lefty to A4. There are
CDR records to support the same.
(i) CDR of A7 shows a call made by him at 12:39 from F-1,
Building, Sector 9, Vashi, Kopar Khairane Road, Vashi. Vodafone
Cell ID locations (Exh. – 421) would reveal the same.
(ii) Similarly, CDR of OA1 (Exh. – 543) and his Loop Cell ID
locations (Exh. – 548) shows that OA1 at 12:39 was at Esic
Nagar (D.N. Nagar, YMCA Area, The Club Area).
(iii) CDR of Lefty (Exh. – 453) and Vodafone Cell ID locations
(Exh. – 421) would show that Subhash Patel @ Lefty called A4 at
12:39 when he was Opposite Model Co-op. Bank, Sector 9, Plot
No. 46, Vashi and CDR of A4 (Exh. 581) and Airtel Cell ID
locations (Exh. – 571) at 12:36 was Next to Abbot Hotel, Opp.
Navratna Hotel, Vashi.
X. 12:40 hours: Nilesh (who saw the abduction) informed
PW38 that his friend and his friend’s friend had been taken away
by 5 - 6 persons in a qualis vehicle. The same has been deposed
to by PW38.
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XI. 13:00 hours: PW57 - Shankar @ Girish Dalsingh called
PW38 inquiring about Ramnarayan and Anil Bheda; that PW38
informed PW57 about abduction. The same has been deposed to
by PW38 and is duly corroborated by PW57, PW1 and PW3.
XII After 13:00 hrs PW3 received repeated calls from different
persons including PW57 who informed him about abduction. The
same has been deposed to by PW3 and PW57.
XIII 13:14 - 13:20 - A4 and A7 are alleged to have gone to
Bhandup Complex from Vashi and A2, A3 and A6 are stated to
have come to Bhandup Complex after the abduction. The CDR of
the said accused would reveal as under:
(i) CDR of A4 (Exh. 581) and Airtel Cell ID locations (Exh.
571) of A4 shows that at 13:17 he had made a call from Dargah
Crossroad, Sonapur, Bhandup on a landline number
XXXXXX7777;
(ii) CDR of A2 (Exh. 521) and Loop Cell ID locations (Exh.
537) shows that A2 at 13:14 was at Kukreja Complex,
Bhandup. There is a call by A2 to A7 at the said time;
(iii) CDR of A7 (Exh. 408) and Vodafone Cell ID locations
(Exh. 421) shows that A7 at 13:14 was at Plot No. 370, Shivaji
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Chowk, Mulund Colony. There is a call by A2 to A7 on the said
time and
(iii) CDR of A3 (Exh. 521) and Loop Cell ID locations (Exh.
548) shows that A3 at 13:40 was near MIDC, Andheri (East).
The same is evident from a call received by A3 from
XXXXX1859.
XIV. 13:57 or 14:00 hours: PW1 had received a call from PW3,
who informed him about the abduction. This has come as per
evidence of PW1, specifically at para 4.
(i) CDR of PW3 (Exh. – 579) Airtel Cell ID locations (Exh.
571) would show that PW3 at around 14:00 was at S.I.E.S
College, P.V Chidambaram Marg, Sion (E), Mumbai. There is a
call made by PW3 from XXXXXX6540 to PW1 from
XXXXXX6490.
(ii) CDR of PW1 (Exh. – 560) Loop Cell ID locations (Exh.
564) would show that PW1 at around 13:57 was at Plot No. 14
& 56, Swastik Park, Opp. Swastik Chambers, CST Road,
Chembur, Mumbai-400071. This is apparent from the call made
by PW3 from XXXXXX6540 to PW1 from XXXXXX6490.
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XV. About 14:00 – 14:15 hours: PW1 had reached the shop of
PW3 and was discussing the said incident of abduction with him.
At that time, PW3 received a call and PW1 took his phone and
talked with the caller, who introduced himself as Dhiraj and
stated his mobile number as XXXXXX9531. This has come as
per the evidence of PW1 (Exh. 113) and as per the evidence of
PW3 (Exh. 157).
XVI. About 14:30 to 15:00 hours: PW38 went to the house of
PW40, and informed her about the abduction. They had decided
on waiting till 17:00 hrs before lodging a complaint and to lodge
a complaint of Anil Bheda only. This is apparent from the
evidence of PW38.
XVII. About 15:00 hours: PW1 spoke to PW38 at about 15:00
hours. Thereafter, PW1 spoke to PW40, made enquiries and took
the address of Aruna Bheda’s house as well as the address of the
shop of PW38. This has come as per the oral evidence of PW1
and PW2. The CDR of PW1(Exh. 652), makes it apparent that at
around 15:01;63, a call was made by PW1 from XXXXXX0012
to PW38 from XXXXXX9531.
XVIII. Between 15:00 - 16:00: PW1 and PW2 called some
police officials, gave them information of abduction and
requested them to make inquiries about the same and revert back,
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but did not get any information. This has come as per the oral
evidence of PW1 and PW2. (There are call detail records to
support the same)
XIX. About 16:08: PW1 & PW2 sent Telegrams to C.P. Mumbai,
Navi Mumbai and Thane from Matunga Telegraph Office. This
has been made apparent from the Original Booking Form of
Telegram to CP, Thane (Exh. 114), Original Booking Form of
Telegram to CP, Navi Mumbai(Exh. 115), Original Booking Form
of Telegram to CP, Mumbai(Exh. 116), and from the receipts
(Exh. 119). (The location of PW1 and PW2 is at these places,
XX. About 16:44: PW1 and PW2 sent faxes to C.P. Navi
Mumbai and Thane. Original Handwritten Fax Message(Exh.
120) makes the same apparent.
XXI. About 17:45: PW1 was told by someone on phone
that the deceased and Anil Bheda were taken away by API
Prakash Bhandari of Belapur Crime Branch. This has come as per
the oral evidence of PW1. (same is corroborated by their CDR).
XXII. About 18:28: PW1 and PW2 sent Telegrams to C.M.
and Dy.C.M, Maharashtra State from Dadar Telegraph Office,
apparently as per oral evidence of PW1 and PW2. Original
Booking Form of Telegram to CP, Navi Mumbai (Exh. 117),
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Original Booking Form of Telegram to CP, Mumbai (Exh. 118),
and Receipts make it apparent that the aforesaid telegrams were
sent by PW1 and PW2 to C.M. and Dy. C.M. Maharashtra State
from Dadar Telegraph office. (The locations evident from CDRs
of PW1 and PW2 support the same.)
XXIII. About 18:40: PW40, Aruna Bheda lodged a missing
Complaint No. 51 at Vashi P.S.
(i) Statement of Aruna Bheda regarding missing complaint of
Anil Bheda at Vashi P.S. (Exh. 306) makes it evident that PW40
had lodged a missing complaint report at about 18:40 at the Vashi
P.S.
(ii) The same is shown in the Missing Complaint Register No.
51/06.
XXIV. About 20:00: PW1 and PW2 reached Belapur Crime
Branch office to make inquiry about the deceased and Anil Bheda
but did not get any information.
(i) CDR of PW1 (Exh. – 560) Loop Cell ID locations (Exh.
564) would show that PW1 at around 20:27 was at Prabhat
Centre Annex, Sector Al, Plot No 7, CBD, Navi Mumbai-
400614.This is apparent from the call made by PW1 from
XXXXXX6490 to 9869109878.
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XXV. Between 20:10 and 20:13: Alleged encounter
took place at Nana Nani Park, 7 Bunglows, Andheri (W),
Mumbai as X the FIR/302/2006 and Claim of Encounter Team.
XXVI. About 20:30: PW3 informed PW1 that there is
breaking news on all news channels that Ramnarayan was shot
dead in an encounter. At that time PW1 and PW2 were at Belapur
C.B.D.
(i) CDR of PW3 (used by PW1) (Exh. – 579) Airtel Cell ID
locations (Exh. 571) would show that PW1(who was using the
mobile phone of PW3) at around 20:33 was near Plot no. 53,
Parsik Hill, C.B.D., Navi Mumbai.This is apparent from the call
made by PW1 (using the mobile of PW3 to PW1.
XXVII. About 22:15: PW1 and PW2 had reached Versova PS
along with Adv. Vijay Desai, Adv. Kudrat Shaikh and driver Raja.
(i) CDR of PW1 (Exh. – 560) Loop Cell ID locations (Exh.
548) would show that PW1 at 22:20 was near Juhu Galli
Junction, Vile Parle(W), Mumbai. This is apparent from the call
made by PW1 to XXXXXX2586.
XXVIII. About 22:30: PW1 and PW2 along with Adv. Vijay
Desai, Adv. Kudrat Shaikh and driver Raja reached Nana Nani
S.Q. Pathan / N.S. Chitnis 662/867
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Park. The same is made apparent by the oral evidence of PW2
(Exh. 148).
(i) CDR of PW3 (used by PW1) (Exh. – 579) Airtel Cell ID
locations (Exh. 572) would show that PW1(who was using the
mobile phone of PW3) at around 22:33 was present around Juhu,
Versova Link Road, Andheri (W), Mumbai.This is apparent from
the call made by PW1(using the mobile of PW3) to
XXXXXX8837.
(ii) CDR of PW2 (Exh. – 401) Vodafone Cell ID locations
(Exh. 406) would show that PW2 at 22:40 was present near J.P.
Road, Near Garden 7 Bungalows, Andheri West, Mumbai.This is
apparent from the call made by PW2 to XXXXXX9150.
XXIX. About 22:44: PW1 took a video recording of the spot
with a Mobile Camera. This Video Clipping shows that one
newspaper was kept at one place and one stone was kept on the
newspaper. It also shows electric pole numbers.
(i) CDR of PW3 (used by PW1) (Exh.–579) Airtel Cell ID
locations (Exh. 571) would show that PW1 at 22:49 was present
around Navbharat Nagar, 7-Bunglow, Andheri, Mumbai. This is
apparent from the call made by Girish Nepali (PW57) to PW1.
S.Q. Pathan / N.S. Chitnis 663/867
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XXX. About 13:19: Al had called PW104 (A.T. Patil)
to come to D.N. Nagar Police Station to convince/talk to Anil
Bheda however, PW104 had turned hostile.
(i) CDR of PW104 (Exh. – 403) Loop Cell ID locations (Exh.
548) would show that PW104 at 13:19 was present around Esic
Nagar, YMCA Area, The Club Area, Mumbai. This is evident
from the call made by OA1 to PW104 on his number
XXXXXX3281.
XXXI. At 15:16: PW104 reached D.N. Nagar Police Station.
(i) CDR of PW104 (Exh. – 403) Vodafone Cell ID locations (Exh.
421) would show that PW104 at 15:16 was present around D.N.
Nagar, Andheri (W), Mumbai. This is evident from the call made
by PW104 from XXXXXX3281 to a local number
XXXXXX0151.
XXXII. About 16:49: Anil Bheda was taken to Vashi Police
Station to withdraw the missing complaint lodged by A/2 and A/3.
(i) CDR of A2 (Exh. – 523) Loop Cell ID locations (Exh. 548)
would show that A2 at 16:49 was found to be around Big Splash,
Vashi, Sector 17, Mumbai. This is evident from the call made by
A2 from XXXXXX1323 to A4 on his number.
S.Q. Pathan / N.S. Chitnis 664/867
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XXXIII. Between 22.05 and 22:51: Anil Bheda, Aruna Bheda
(PW40) and their son, Parth were taken to Bhatwadi by A2 and
A3.
(i) CDR of A2 (Exh. – 523) Loop Cell ID location (Exh. 539)
would show that A2 at 22:05 was present around Tilak Nagar
Railway Quarters, Tilaknagar, Mumbai. This is evident from the
call made by A2 from XXXXXX1323 to A4 on his number.
(ii) CDR of A2 (Exh. – 523) Loop Cell ID location (Exh. 539)
would show that A2 at 22:51 was found near Alpana Apts.,
Ghatkopar, L.B.S. Marg, Barve Nagar, Mumbai. This is evident
from the call made by A2 from XXXXXX1323 to
XXXXXX3337.
322 Thus, the CDR of the accused clearly corroborates
the circumstances on record and the prosecution case, that the
accused were at the place, before and when the abduction took
place i.e. of Ramnaryan and Anil Bheda, and from where they
were brought to D.N. Nagar Police Station via Bhandup. Some of
the appellants/accused i.e. police personnel who were present
th
from before i.e. on 10 November 2006, were A7, A2 and A3
S.Q. Pathan / N.S. Chitnis 665/867
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th
alongwith others and on 11 November 2006, A7 alongwith
others, abducted Ramnarayan and Anil Bheda and A2 and A3
joined the abductors at Bhandup. All three were outside their
th
Commissionerate areas i.e. they were in Navi Mumbai on 10
th
November 2006 and A7 on 11 November 2006 and have
offered no explanation for the same. There are exchange of
several calls interse between the accused. As far as A2 and A3 are
th
concerned, their location of 10 November 2006 at the time of
recce was Vashi, Navi Mumbai and on the day of abduction, they
were at Bhandup. The mobile numbers of A2 and A3 are
registered in their own names. The said accused have not offered
any explanation as to why they were outside their
Commissionerate area under Section 313. It is pertinent to note
that Ramnarayan was staying with Anil Bheda, as is evident from
the evidence of PW1. The same has been admitted to, by PW 1 in
his cross-examination. As far as A7 is concerned, the mobile used
by him was registered in his brother’s name-Avinash Shinde.
Although, A7 disputed using the said mobile, Exh. 688 clinches
S.Q. Pathan / N.S. Chitnis 666/867
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the prosecution case that A7 was using the said mobile. The
prosecution in support of its case, has examined PW90-Sanjay
Apage to prove that A7 was using mobile No. XXXXXX0551.
323 PW90-Sanjay Apage was examined by the prosecution
to prove the entry i.e. Exh. 687A and 688A. PW 90 who was
attached to Versova Police Station at the relevant time as a Police
Constable. He has stated that in October 2006, he was working as
a Section Karkun and that he was the only Section Karkun; that
his work as a Section Karkun was to update personal information
of the Ammaldars and that the said information is updated in a
book kept in the police station; and that the said information is
entered in the book on the basis of the information given by the
Ammaldar concerned when he resumes duty in the police station.
323.1 When PW90 was confronted with the book of the
Versova Police Station, he has identified the first entry as being in
his handwriting, except the figure 69703 (Nothing turns on this
S.Q. Pathan / N.S. Chitnis 667/867
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number). He has stated that as per the said entry, A2 joined duty
th
on 18 October 2006; that he was transferred from Local Arms-I
to Crime Branch and then to Versova Police Station; that his
th
transfer was as per Police Circular dated 24 August 2006; that
his PC number was 31241; that A2’s address was A/Block No. 77,
Worli Police Camp, Sir Pochkhanwala Marg, Mumbai-25 and his
mobile number was XXXXXX1323. PW90 has stated that the
said information was given by A2 and that the contents written
by him in the book were true and correct. Accordingly, entry was
marked as Exh. 687 and the xerox true copy of the said entry was
marked as Exh. 687A.
323.2 PW90 has further deposed that another entry on the
same page is with respect to A7, a resident of Flat No.2, Gold
Sumit Housing Society, Kalwa Naka, Kalwa. Thane and his
Mobile No. was XXXXXX0551 i.e. as disclosed by A7. PW90
has further deposed that there is another entry on the same page
with respect to A7 i.e. A7 joining duty at Versova Police Station
S.Q. Pathan / N.S. Chitnis 668/867
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th
on 18 October 2006; that he was transferred from LA, III
Narcotics Crime Branch to Versova Police Station; that his
th
transfer was as per police Circular dated 24 August 2006. He
has stated that the total entry is in his handwriting, except the
words, "Transfer Andheri Police Station". He has further stated
that he made the entry correctly as per the say of A7. The said
entry is marked as Exh. 688 and the xerox true copy of the said
entry was taken on record and marked as Exh. 688A. The said
witness has identified both A2 and A7.
324 Nothing material has been brought in the cross-
examination of the said witness, so as to disbelieve his testimony
with respect to the entries made by him. The said Exhibits 687-A
and 688-A show that the said witness i.e. PW90 has recorded in
his writing the designation of the police, their names, address,
their date of birth, the date of joining service, their caste, their
education, date of reporting and the village address, from where
they were transferred, as per the say of A2 and A7. Except for
S.Q. Pathan / N.S. Chitnis 669/867
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the entries made with respect to mobile numbers, there is no cross
on the other columns i.e. other details, which were authored by
PW90. It appears that the said entries have been made by PW90
in the usual course of his official duty and there is no reason to
disbelieve his testimony. Thus, the evidence of PW90 clearly
discloses that A2 was using mobile No. XXXXXX1323 and A7
was using mobile No. XXXXXX0551. It is pertinent to note that
A7 has not brought anything on record that he was using any
other number. Not even a suggestion.
325 Much ado has been made about discrepancy in the
Sectors i.e. Sector 9 and Sector 9A, however, having perused the
evidence, we do not find any merit in the said submission,
inasmuch as, Sector 9 and Sector 9A are adjacent to each other, as
is evident from the evidence of PW38. It may be noted that
PW38 has admitted in his cross-examination, that the distance
between his shop and the road was about 10 feet and that he had
seen Nilesh standing outside the shop, on the road.
S.Q. Pathan / N.S. Chitnis 670/867
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326 Thus, from a bare perusal of the aforesaid evidence
that has come on record, we may note that the locations as
established by the CDRs of the Appellants/ Accused conclusively
points to the complicity of the accused persons vis-à-vis abduction
th
of Anil Bheda and Ramnarayan on 11 November 2006 and
murder/custodial death of Ramnarayan, on the same day.
327 The inter se communication between the
appellants/accused, as established by the CDR evidence that has
come on record, points to criminal conspiracy to eliminate
Ramnarayan. We now proceed to deal with the next circumstance
relied upon by the prosecution, which is criminal conspiracy.
viii. CRIMINAL CONSPIRACY
328 Learned counsel for the appellants/accused submitted
that the prosecution has failed to prove criminal conspiracy i.e.
there was a conspiracy between all the accused to eliminate
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Ramnarayan and that in achieving the same, they abducted
Ramnarayan and Anil Bheda and confined Anil Bheda, so that he
would not spill the beans.
329 Whereas, Mr. Chavan, learned Spl.P.P and Dr.
Chaudhry submitted that conspiracy can clearly be inferred from
the circumstances on record, as direct evidence is seldom
available. It is submitted that the circumstances adduced by the
prosecution will clearly reveal the existence of a criminal
conspiracy.
330 The law with regard to how ‘criminal conspiracy’ is
to be proved, is well settled.
331 The Apex Court in State of Kerala v. P. Sugathan and
Ors.22, has in paras 12 and 13 observed as under :
"12. We are aware of the fact that direct independent
evidence of criminal conspiracy is generally not available and
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its existence is a matter of inference. The inferences are
normally deduced from acts of parties in pursuance of a
purpose in common between the conspirators. This Court in
V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 :
1980 SCC (Cri) 561] held that to prove criminal conspiracy
there must be evidence direct or circumstantial to show that
there was an agreement between two or more persons to
commit an offence. There must be a meeting of minds
resulting in ultimate decision taken by the conspirators
regarding the commission of an offence and where the
factum of conspiracy is sought to be inferred from
circumstances, the prosecution has to show that the
circumstances give rise to a conclusive or irresistible
inference of an agreement between two or more persons to
commit an offence. As in all other criminal offences, the
prosecution has to discharge its onus of proving the case
against the accused beyond reasonable doubt. The
circumstances in a case, when taken together on their face
value, should indicate the meeting of the minds between the
conspirators for the intended object of committing an illegal
act or an act which is not illegal, by illegal means. A few bits
here and a few bits there on which the prosecution relies
cannot be held to be adequate for connecting the accused
with the commission of the crime of criminal conspiracy. It
has to be shown that all means adopted and illegal acts done
were in furtherance of the object of conspiracy hatched. The
circumstances relied for the purposes of drawing an
inference should be prior in time than the actual commission
of the offence in furtherance of the alleged conspiracy.
13. In Kehar Singh v. State (Delhi Admn.) [(1988) 3 SCC
609 : 1988 SCC (Cri) 711 : AIR 1988 SC 1883] it was
noticed that Sections 120-A and 120-B IPC have brought the
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law of conspiracy in India in line with English law by making
an overt act inessential when the conspiracy is to commit any
punishable offence. The most important ingredient of the
offence being the agreement between two or more persons
to do an illegal act. In a case where criminal conspiracy is
alleged, the court must inquire whether the two persons are
independently pursuing the same end or they have come
together to pursue the unlawful object. The former does not
render them conspirators but the latter does. For the offence
of conspiracy some kind of physical manifestation of
agreement is required to be established. The express
agreement need not be proved. The evidence as to the
transmission of thoughts sharing the unlawful act is not
sufficient. A conspiracy is a continuing offence which
continues to subsist till it is executed or rescinded or
frustrated by choice of necessity. During its subsistence
whenever any one of the conspirators does an act or series of
acts, he would be held guilty under Section 120-B of the
Penal Code, 1860."
23
332 Similarly, in Yogesh v. State of Maharashtra , the
Apex Court in para 25 has summarized the core principles of law
of conspiracy in the following words :
25. Thus, it is manifest that the meeting of minds of two or
more persons for doing an illegal act or an act by illegal
means is sine qua non of the criminal conspiracy but it may
not be possible to prove the agreement between them by
direct proof. Nevertheless, existence of the conspiracy and
its objective can be inferred from the surrounding
23 AIR 2008 SC 2991
S.Q. Pathan / N.S. Chitnis 674/867
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circumstances and the conduct of the accused. But the
incriminating circumstances must form a chain of events
from which a conclusion about the guilt of the accused could
be drawn. It is well settled that an offence of conspiracy is a
substantive offence and renders the mere agreement to
commit an offence punishable, even if an offence does not
take place pursuant to the illegal agreement.”
333 More recently, in State (NCT of Delhi) v. Navjot
24
Sandhu , the Apex Court after making an exhaustive reference to
several decisions on the point, including State v. Nalini-(1999) 5
SCC 253 , observed in para 97, as under:
“97. Mostly, conspiracies are proved by circumstantial
evidence, as the conspiracy is seldom an open affair. Usually
both the existence of the conspiracy and its objects have to be
inferred from the circumstances and the conduct of the
accused (per Wadhwa, J. in Nalini case [(1999) 5 SCC 253 :
1999 SCC (Cri) 691] at p. 516). The well-known rule
governing circumstantial evidence is that each and every
incriminating circumstance must be clearly established by
reliable evidence and “the circumstances so proved must form
a chain of events from which the only irresistible conclusion
about the guilt of the accused can be safely drawn and no
other hypothesis against the guilt is possible” (Tanviben
Pankajkumar case [Tanviben Pankajkumar Divetia v. State of
Gujarat, (1997) 7 SCC 156 : 1997 SCC (Cri) 1004] , SCC p.
185, para 45). G.N. Ray, J. in Tanviben Pankajkumar
[Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7
24 (2005) 11 SCC 600
S.Q. Pathan / N.S. Chitnis 675/867
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SCC 156 : 1997 SCC (Cri) 1004] observed that this Court
should not allow suspicion to take the place of legal proof.”
334 Conspiracies are always shrouded in secrecy and as
such would have to be inferred from the circumstances on record,
inasmuch as, direct evidence, is seldom available. It is not
necessary to prove conspiracy by express agreement. The law
with respect to criminal conspiracy is well settled. The conduct
of the accused, there participation at different stages, to achieve
the ultimate object, is relevant. The most important ingredient of
the offence of criminal conspiracy is the agreement between
two/more persons to do an illegal act i.e. they have come together
to pursue the illegal/unlawful act. The meeting of minds, in the
facts, can clearly be inferred from the acts of the
appellants/accused to achieve their ultimate goal, which was to
kill Ramnarayan. In the facts, physical manifestation of
agreement has been established. A conspiracy is a continuing
offence, which continues to subsist till it is executed, rescinded or
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frustrated, by choice of necessity. In the present case, the
conspiracy continued till it was finally executed.
335 The circumstances in the present case, when taken
together on their face value, would clearly indicate meeting of
minds between the conspirator for the intended object of
committing an illegal act. It is clearly evident from the evidence
on record that all means adopted and illegal acts done by the
appellants/accused were clearly done in furtherance of the object
of the conspiracy hatched, which is to kill Ramnarayan and the
same is evident from the time when police personnel were
deputed to D.N. Nagar, after which, a watch was kept on
th
Ramnarayan on his movements from 10 November 2006 till
th
11 November 2006 when Ramnarayan and witness Anil Bheda
were abducted after which Ramnarayan was killed in a fake
encounter. Thereafter, witness Anil Bheda was detained for about
one month by the appellants/accused, so as to prevent him from
spilling the beans, he being the prime witness to the abduction.
S.Q. Pathan / N.S. Chitnis 677/867
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Formation of a squad under OA1, albeit being illegal and coming
together of police personnel, some from different police stations,
to work under OA1 squad, is also one of the factors which will
have to be borne in mind to show the intent/conspiracy hatched
by the appellants/accused. All the circumstances adduced by the
prosecution clearly show that there was an agreement between
the parties for doing an illegal act, and that each played a part in
achieving that illegal object.
336 From the circumstances as adduced by the
prosecution on record, it is clearly evident that the goal/object of
all the appellants/accused was that of ‘elimination of Ramnarayan’
and to achieve this goal/object, a squad was formed under OA1,
that all accused participated in one way or the other, either by
providing logistics, keeping a watch on the movements of
Ramnarayan, in his abduction and then in killing him, and by
showing the killing as an encounter and then by confining Anil
Bheda, for almost a month, so that he does not spill the beans.
S.Q. Pathan / N.S. Chitnis 678/867
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Anil Bheda, was a prime witness to his and Ramnarayan’s
abduction. Anil Bheda had in the TIP identified the persons who
had abducted him and Ramnarayan. Anil Bheda’s 161 and 164
statements had also been recorded and so was a running
panchnama done as disclosed by him from where he and
Ramnarayan were abducted i.e. from Vashi to Bhandup to D.N.
Nagar Police Station to the places where he was confined. It is
pertinent to note, that few days prior to his deposition Anil Bheda
was abducted and killed i.e. his burnt body was identified only on
the basis of DNA. All the evidence adduced by the prosecution
would clearly reveal that the ultimate goal was to kill
Ramnarayan. The CDR also supports the evidence adduced by
the prosecution, as dealt in detail, by us herein-above. The
circumstances on record, when taken together on their face value,
clearly indicates the meeting of minds between the conspirators
for the intended object of committing an illegal act. The
inferences can be deduced from the acts of the parties, done in
pursuance of the purpose in common between the conspirators.
S.Q. Pathan / N.S. Chitnis 679/867
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The prosecution has successfully proved all the circumstances
relied upon by them by cogent and legal evidence, and beyond
reasonable doubt. Thus, the prosecution from all the aforesaid
circumstances, has duly proved that the appellants had entered
into a criminal conspiracy, and the same can clearly be inferred
from the overwhelming evidence/circumstances led by the
prosecution.
D. Lacunae in 313
337 All the learned counsel for the appellants/accused
submitted that the evidence pertaining to CDRs, SDRs and tower
locations has not been specifically put to any of the accused
persons, thereby, offering no opportunity to explain the
incriminating circumstances revealed from the CDRs, SDRs and
tower locations. They further submitted that only a general
question has been put with respect to the Nodal Officers, to the
accused persons and the same does not offer any opportunity to
S.Q. Pathan / N.S. Chitnis 680/867
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them to provide a proper explanation, which amounts to a
serious irregularity, and thus, the same would have to be excluded
from consideration.
338 Learned counsel for all the appellants/accused
vehemently submitted that serious prejudice has been caused to
the appellants/accused, inasmuch as, a common and composite
question with respect to CDRs was asked, resulting in serious
prejudice to the appellants. It is submitted that thus, the
circumstance of ‘CDR’ relied upon by the prosecution cannot be
considered and as such would have to be excluded from
consideration.
339 Per Contra, Mr. Chavan, learned Spl.PP submitted
that the appellants/accused have failed to show that on account of
the said composite question on CDRs, failure of justice had
occasioned. He submitted that no objection/submission was
advanced by the appellants’ counsel in the trial Court with respect
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to the same. According to Mr. Chavan, though this Court had
asked the learned counsel for the appellants and Mr. Dilip
Palande, who appeared in-person, during the course of their
arguments, that the said lacunae, if any, could be rectified at the
appellate stage, all the learned counsel for the appellants and
Mr. Dilip Palande (A15) in unison refused the same, saying that if
the exercise is done at this stage, serious prejudice would be
caused to them. He submitted that in view of the said stand, the
appellants/accused now cannot cry that ‘prejudice’ has been
caused to them, because of a composite question on CDRs.
340 Before we proceed to decide the said objection of the
appellants with respect to alleged prejudice being caused to them
because of the composite Questioning on ‘CDRs’, it would be
apposite to consider the law on Section 313.
341 The Apex Court in Raj Kumar @ Suman v. State
(NCT of Delhi) 24 has underlined the prevailing law concerning
Section 313 of the Cr. PC, specifically in para 17, as herein-under:
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“17. The law consistently laid down by this Court can be
summarized as under:
(i) It is the duty of the Trial Court to put each
material circumstance appearing in the evidence
against the accused specifically, distinctively and
separately. The material circumstance means the
circumstance or the material on the basis of which
the prosecution is seeking his conviction;
(ii) The object of examination of the accused under
Section 313 is to enable the accused to explain any
circumstance appearing against him in the evidence;
(iii) The Court must ordinarily eschew material
circumstances not put to the accused from
consideration while dealing with the case of the
particular accused;
(iv) The failure to put material circumstances to the
accused amounts to a serious irregularity. It will
vitiate the trial if it is shown to have prejudiced the
accused;
(v) If any irregularity in putting the material
circumstance to the accused does not result in
failure of justice, it becomes a curable defect.
However, while deciding whether the defect can be
cured, one of the considerations will be the passage
of time from the date of the incident;
(vi) In case such irregularity is curable, even the
appellate court can question the accused on the
material circumstance which is not put to him; and
(vii) In a given case, the case can be remanded to
the Trial Court from the stage of recording the
supplementary statement of the concerned accused
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under Section 313 of CrPC.
(viii) While deciding the question whether prejudice
has been caused to the accused because of the
omission, the delay in raising the contention is only
one of the several factors to be considered.”
342 The Apex Court in its landmark ruling in the case of
25
Shivaji Sahabrao Bobade v. State of Maharashtra , has in
paragraph 16, held as under:
“16.… It is trite law, nevertheless fundamental, that the
prisoner's attention should be drawn to every inculpatory
material so as to enable him to explain it. This is the basic
fairness of a criminal trial and failures in this area may
gravely imperil the validity of the trial itself, if
consequential miscarriage of justice has flowed. However,
where such an omission has occurred it does not ipso
facto vitiate the proceedings and prejudice occasioned by
such defect must be established by the accused. In the
event of evidentiary material not being put to the
accused, the court must ordinarily eschew such material
from consideration. It is also open to the appellate court
to call upon the counsel for the accused to show what
explanation the accused has as regards the circumstances
established against him but not put to him and if the
accused is unable to offer the appellate court any
plausible or reasonable explanation of such
circumstances, the Court may assume that no acceptable
answer exists and that even if the accused had been
questioned at the proper time in the trial court he would
25 (1973) 2 SCC 793
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not have been able to furnish any good ground to get out
of the circumstances on which the trial court had relied
for its conviction. In such a case, the Court proceeds on
the footing that though a grave irregularity has occurred
as regards compliance with Section 342, CrPC, the
omission has not been shown to have caused prejudice to
the accused.…..”
343 Similarly, in Gian Chand and Ors. v. State of
26
Haryana , the Apex Court held that non-compliance of the
provisions of Section 313 Cr.PC was taken for the first time
before the Supreme Court. However, considering there was no
material shown by the accused persons as to what prejudice has
been caused to the accused persons, the court held that the trial
was not vitiated for non-compliance of the provisions of Section
313 of Cr.PC
344 Infact, a three-Judge Bench of the Apex Court in
27
Wasim Khan v. State Of Uttar Pradesh and Bhoor Singh v. State
28
of Punjab held that every error or omission in compliance with
26 AIR 2013 SC 3395
27 AIR 1956 SC 400
28 AIR 1974 SC 1256
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the provisions of section 342 of the old Cr.PC does not
necessarily vitiate trial. The accused must show that some
prejudice has been caused or was likely to have been caused to
him.
29
345 In Paramjeet Singh v. State of Uttarakhand , after
considering several cases on the issue, the Apex Court in para
30, held as under:
“30. Thus, it is evident from the above that the provisions
of Section 313 CrPC make it obligatory for the court to
question the accused on the evidence and circumstances
against him so as to offer the accused an opportunity to
explain the same. But, it would not be enough for the
accused to show that he has not been questioned or
examined on a particular circumstance, instead he must
show that such non-examination has actually and materially
prejudiced him and has resulted in the failure of justice. In
other words, in the event of an inadvertent omission on the
part of the court to question the accused on any
incriminating circumstance cannot ipso facto vitiate the trial
unless it is shown that some material prejudice was caused
to the accused by the omission of the court.”
29 AIR 2011 SC 200
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30
346 Infact, in State of Punjab v. Naib Din , in particular,
in paras 11 and 12, the Apex Court has observed as under:
“11. Added to the above, learned Single Judge observed
that the contents of the said affidavit were not put to the
accused during the examination under Section 313 of the
Code. Learned Single Judge, on that score also, overlooked
the formal nature of the evidence. The substantive evidence
relating to the sample is the result of the chemical
examination. There is no grievance for the accused that the
trial court did not put that aspect to the accused when he
was questioned under Section 313 of the Code. If so it was
too pedantic an insistence that every item of evidence, even
of a formal nature, should also form part of the questions
under Section 313 of the Code.
12. That apart, the respondent failed to show that there
was any failure of justice on account of the omission to put
a question concerning such formal evidence when he was
examined under Section 313 of the Code. No objection was
raised in the trial court on the ground of such omission. No
ground was taken up in the appellate court on such ground.
If any appellate court or revisional court comes across that
the trial court had not put any question to an accused even
if it is of a vital nature, such omission alone should not
result in setting aside the conviction and sentence as an
inevitable consequence. Effort should be made to undo or
correct the lapse. If it is not possible to correct it by any
means the court should then consider the impact of the
lapse on the overall aspect of the case. After keeping that
particular item of evidence aside, if the remaining evidence
30 (2001) SCC OnLine SC 1163
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is sufficient to bring home the guilt of the accused, the lapse
does not matter much, and can be sidelined justifiably. But if
the lapse is so vital as would affect the entire case, the
appellate or revisional court can endeavour to see whether
it could be rectified.”
(emphasis supplied)
347 Thus, the judgments of the Apex Court would show
an omission under Section 313 does not necessarily vitiate the
trial, unless the accused is successful in showing that the omission
has resulted in serious prejudice, resulting in failure of justice.
348 At the outset, we may note that learned counsel
appearing for all the appellants, during the course of their
submissions alleged that serious prejudice has been caused
because of the composite Questioning on CDRs, in particular,
Question No.318, and hence, we asked the learned counsel for
the appellants to tell us, as to which Questions had caused
prejudice to the appellants, so that the said questions could be put
to the appellants separately under Section 313, even at the
appellate stage. None could tell us how prejudice had
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occasioned. Learned Spl.PP as well as Dr. Chaudhry had no
objection for this Court to put questions to the
appellants/accused, which according to the accused, had caused
prejudice to them. However, all the counsel for the appellants as
well as Mr. Palande, appearing in-person refused the said offer,
stating that if Questions were put to them under Section 313 now,
at this stage, their case would stand seriously prejudiced. Thus,
despite giving an opportunity to all the appellants to show how
failure of justice had occasioned, due to the composite
questioning and despite giving them an opportunity of putting
questions to them, all the appellants/accused failed to take up the
said offer. Thus, in this light of the matter, the appellants now
cannot cry prejudice, much less, serious prejudice to them,
resulting in failure of justice.
349 We may also note, that not a single appellant raised
the ground of prejudice under Section 313 or even argued the
same, before the trial Court, and as such, there was no occasion
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for the trial Court to consider the same. Even at the appellate
stage, only A2, A4 and A7 have in their Appeal Memos raised the
ground of prejudice under Section 313, rest of the
appellants/accused argued the said ground, for the first time
during the course of their arguments, when the aforesaid appeals
were heard in 2023, after 13 years. Infact, we asked both, the
prosecution as well as the defence counsel to suggest the
Questions, however, learned counsel for the appellants including
Mr. Palande refused the suggestion and hence Questions were not
prepared. Thus, an opportunity was given to all the accused, to
show what was the prejudice caused, so that the questions could
be asked to them, at the appellate stage, however, they refused.
350 Having regard to the law with respect to 313, no
ground is made out by the appellants/accused to entertain their
submission that prejudice has been caused to them, with respect
to the composite questions on CDRs.
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E. Sanction under Section 197 Cr.PC – Whether necessary ?
351 Some of the appellants/accused i.e. A3, A7, A9, A15
and A16 urged that since it was a genuine encounter, it was
incumbent for the prosecution to obtain sanction under Section
197 Cr.PC, since the acts were done in course of the discharge of
their official duty.
352 Whereas, according to Mr. Chavan, learned Spl. PP,
the question of seeking sanction under Section 197 did not arise,
since the encounter was not a genuine one, but was a fake
encounter. He submitted that the law as to when sanction is
required, is well settled and that it covers only acts done in the
course of one’s official duty. According to Mr. Chavan, a fake
encounter i.e. a murder, abduction, wrongful confinement, can
never be said to be an act done in the course of one’s duty,
warranting sanction under Section 197 Cr.PC.
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353 The law with respect to when sanction under Section
197 of the Cr.PC is necessary, is no longer res integra . The Apex
Court in the case of Devinder Singh and Ors. v. The State of
31
Punjab through CBI , (it was a case pertaining to a fake
encounter) summarized the principles emerging from various
decisions, in para 39 of its judgment, as under:
“39. The principles emerging from the aforesaid decisions
are summarised hereunder:
“39.1. Protection of sanction is an assurance to an honest
and sincere officer to perform his duty honestly and to
the best of his ability to further public duty. However,
authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been
committed by public servant in discharging his duty it
must be given liberal and wide construction so far its
official nature is concerned. Public servant is not entitled
to indulge in criminal activities. To that extent Section
197 CrPC has to be construed narrowly and in a
restricted manner.
39.3. Even in facts of a case when public servant has
exceeded in his duty, if there is reasonable connection it
will not deprive him of protection under Section 197
31 (2016) 12 SCC 87
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CrPC. There cannot be a universal rule to determine
whether there is reasonable nexus between the act done
and official duty nor is it possible to lay down such rule.
39.4. In case the assault made is intrinsically connected
with or related to performance of official duties, sanction
would be necessary under Section 197 CrPC, but such
relation to duty should not be pretended or fanciful
claim. The offence must be directly and reasonably
connected with official duty to require sanction. It is no
part of official duty to commit offence. In case offence
was incomplete without proving, the official act,
ordinarily the provisions of Section 197 CrPC would
apply.
39.5. In case sanction is necessary, it has to be decided by
competent authority and sanction has to be issued on the
basis of sound objective assessment. The court is not to be
a sanctioning authority.
39.6. Ordinarily, question of sanction should be dealt
with at the stage of taking cognizance, but if the
cognizance is taken erroneously and the same comes to
the notice of court at a later stage, finding to that effect is
permissible and such a plea can be taken first time before
the appellate court. It may arise at inception itself. There
is no requirement that the accused must wait till charges
are framed.
39.7. Question of sanction can be raised at the time of
framing of charge and it can be decided prima facie on
the basis of accusation. It is open to decide it afresh in
light of evidence adduced after conclusion of trial or at
other appropriate stage.
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39.8. Question of sanction may arise at any stage of
proceedings. On a police or judicial inquiry or in course
of evidence during trial. Whether sanction is necessary or
not may have to be determined from stage to stage and
material brought on record depending upon facts of each
case. Question of sanction can be considered at any stage
of the proceedings. Necessity for sanction may reveal
itself in the course of the progress of the case and it
would be open to the accused to place material during
the course of trial for showing what his duty was. The
accused has the right to lead evidence in support of his
case on merits.
39.9. In some cases it may not be possible to decide the
question effectively and finally without giving
opportunity to the defence to adduce evidence. Question
of good faith or bad faith may be decided on conclusion
of trial.”
354 It is pertinent to note that the scope of protection
granted under Section 197 of the Cr.PC was dealt with in P. K.
32
Pradhan v. State of Sikkim . The Apex Court whilst considering
the said question, held in paras 14 and 15 as under:
“ 14. In the case of K. Satwant Singh v. State of Punjab
[AIR 1960 SC 266 : 1960 Cri LJ 410 : (1960) 2 SCR 89]
a Constitution Bench of this Court observed that some
offences cannot by their very nature be regarded as
32 (2001) 6 SCC 704
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having been committed by public servants while acting or
purporting to act in the discharge of their official duty.
For instance, acceptance of bribe, an offence punishable
under Section 161 of the Penal Code, 1860 is one of
them and offence of cheating and abetment thereof is
another. Likewise, another Constitution Bench in the case
of Om Parkash Gupta v. State of U.P. [AIR 1957 SC 458 :
1957 SCR 423 : 1957 Cri LJ 575] observed that a public
servant committing criminal breach of trust does not
normally act in his public capacity, as such no sanction is
required for such an act.
“15. Thus, from a conspectus of the aforesaid decisions,
it will be clear that for claiming protection under Section
197 of the Code, it has to be shown by the accused that
there is reasonable connection between the act
complained of and the discharge of official duty. An
official act can be performed in the discharge of official
duty as well as in dereliction of it. For invoking
protection under Section 197 of the Code, the acts of the
accused complained of must be such that the same cannot
be separated from the discharge of official duty, but if
there was no reasonable connection between them and
the performance of those duties, the official status
furnishes only the occasion or opportunity for the acts,
then no sanction would be required. If the case as put
forward by the prosecution fails or the defence establishes
that the act purported to be done is in discharge of duty,
the proceedings will have to be dropped. It is well settled
that question of sanction under Section 197 of the Code
can be raised any time after the cognizance; maybe
immediately after cognizance or framing of charge or
even at the time of conclusion of trial and after
conviction as well. But there may be certain cases where
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it may not be possible to decide the question effectively
without giving opportunity to the defence to establish
that what he did was in discharge of official duty. In
order to come to the conclusion whether claim of the
accused that the act that he did was in course of the
performance of his duty was a reasonable one and neither
pretended nor fanciful, can be examined during the
course of trial by giving opportunity to the defence to
establish it. In such an eventuality, the question of
sanction should be left open to be decided in the main
judgment which may be delivered upon conclusion of the
trial.”
355 In Omprakash and Ors. v. State of Jharkhand and
33
Anr. , the Supreme Court after referring to certain decisions
pertaining to Police excesses, explained the scope of protection
under Section 197 of the Cr.PC in paras 32, 34 and 42 as under:
“32. The true test as to whether a public servant was acting
or purporting to act in discharge of his duties would be
whether the act complained of was directly connected with
his official duties or it was done in the discharge of his
official duties or it was so integrally connected with or
attached to his office as to be inseparable from it (K.
Satwant Singh [AIR 1960 SC 266 : 1960 Cri LJ 410 :
(1960) 2 SCR 89] ). The protection given under Section
197 of the Code has certain limits and is available only
when the alleged act done by the public servant is
33 (2012) 12 SCC 72
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reasonably connected with the discharge of his official duty
and is not merely a cloak for doing the objectionable act. If
in doing his official duty, he acted in excess of his duty, but
there is a reasonable connection between the act and the
performance of the official duty, the excess will not be a
sufficient ground to deprive the public servant of the
protection (Ganesh Chandra Jew [(2004) 8 SCC 40 : 2004
SCC (Cri) 2104] ). If the above tests are applied to the facts
of the present case, the police must get protection given
under Section 197 of the Code because the acts complained
of are so integrally connected with or attached to their
office as to be inseparable from it. It is not possible for us to
come to a conclusion that the protection granted under
Section 197 of the Code is used by the police personnel in
this case as a cloak for killing the deceased in cold blood.
….
“34. In Matajog Dobey [AIR 1956 SC 44 : 1956 Cri LJ
140 : (1955) 2 SCR 925] the Constitution Bench of this
Court was considering what is the scope and meaning of a
somewhat similar expression “any offence alleged to have
been committed by him while acting or purporting to act in
the discharge of his official duty” occurring in Section 197
of the Criminal Procedure Code (5 of 1898). The
Constitution Bench observed that no question of sanction
can arise under Section 197 unless the act complained of is
an offence; the only point to determine is whether it was
committed in the discharge of official duty. On the question
as to which act falls within the ambit of above quoted
expression, the Constitution Bench concluded that there
must be a reasonable connection between the act and the
discharge of official duty; the act must bear such relation to
the duty that the accused could lay a reasonable, but not a
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pretended or fanciful claim that he did it in the course of
performance of his duty. While dealing with the question
whether the need for sanction has to be considered as soon
as the complaint is lodged and on the allegations contained
therein, the Constitution Bench referred to Hori Ram Singh
[AIR 1939 FC 43 : (1939) 1 FCR 159] and observed that at
first sight, it seems as though there is some support for this
view in Hori Ram Singh [AIR 1939 FC 43 : (1939) 1 FCR
159] because Sulaiman, J. has observed in the said judgment
that as the prohibition is against the institution itself, its
applicability must be judged in the first instance at the
earliest stage of institution and Varadachariar, J. has also
stated that: (Matajog Dobey case [AIR 1956 SC 44 : 1956
Cri LJ 140 : (1955) 2 SCR 925] , AIR p. 49, para 20)
““20. … the question must be determined with
reference to the nature of the allegations made against
the public servant in the criminal proceedings.”
It is pertinent to note that the Constitution Bench has
further observed that a careful perusal of the later
parts of the judgment however show that the learned
Judges did not intend to lay down any such
proposition. The Constitution Bench quoted the said
later parts of the judgment as under: (Matajog Dobey
case [AIR 1956 SC 44 : 1956 Cri LJ 140 : (1955) 2
SCR 925] , AIR pp. 49-50, para 20)
“20. … Sulaiman, J. refers to the prosecution case
as disclosed by the complaint or the ‘police report’
and he winds up the discussion in these words:
(Hori Ram Singh case [AIR 1939 FC 43 : (1939) 1
FCR 159] , AIR p. 52 : FCR p. 179)
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‘… Of course, if the case as put forward fails,
or the defence establishes that the act purported to
be done [is] in execution of duty, the proceedings
will have to be dropped and the complaint
dismissed on that ground.’
The other learned Judge also states: (Hori Ram
Singh case [AIR 1939 FC 43 : (1939) 1 FCR 159] ,
AIR p. 55 : FCR p. 185)
‘… At this stage, we have only to see whether
the case alleged against the appellant or sought to
be proved against him relates to acts done or
purporting to be done by him in the execution of
his duty.’
It must be so. The question may arise at any
stage of the proceedings. The complaint may not
disclose that the act constituting the offence was
done or purported to be done in the discharge of
official duty; but facts subsequently coming to light
on a police or judicial inquiry or even in the course
of the prosecution evidence at the trial, may
establish the necessity for sanction.
Whether sanction is necessary or not may
have to be determined from stage to stage. The
necessity may reveal itself in the course of the
progress of the case.”
The legal position is thus settled by the
Constitution Bench in the above paragraph.
Whether sanction is necessary or not may have to
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be determined from stage to stage. If, at the outset,
the defence establishes that the act purported to be
done is in execution of official duty, the complaint
will have to be dismissed on that ground.
“42. It is not the duty of the police officers to kill the
accused merely because he is a dreaded criminal.
Undoubtedly, the police have to arrest the accused and put
them up for trial. This Court has repeatedly admonished
trigger-happy police personnel, who liquidate criminals and
project the incident as an encounter. Such killings must be
deprecated. They are not recognised as legal by our criminal
justice administration system. They amount to State-
sponsored terrorism. But, one cannot be oblivious of the
fact that there are cases where the police, who are
performing their duty, are attacked and killed. There is a
rise in such incidents and judicial notice must be taken of
this fact. In such circumstances, while the police have to do
their legal duty of arresting the criminals, they have also to
protect themselves. The requirement of sanction to
prosecute affords protection to the policemen, who are
sometimes required to take drastic action against criminals
to protect life and property of the people and to protect
themselves against attack. Unless unimpeachable evidence is
on record to establish that their action is indefensible, mala
fide and vindictive, they cannot be subjected to prosecution.
Sanction must be a precondition to their prosecution. It
affords necessary protection to such police personnel. The
plea regarding sanction can be raised at the inception.”
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34
356 In D. Devaraja v. Owais Sabeer Hussain , the
Supreme Court has observed in para 70 as under:
“70. To decide whether sanction is necessary, the test
is whether the act is totally unconnected with official duty
or whether there is a reasonable connection with the official
duty. In the case of an act of a policeman or any other
public servant unconnected with the official duty there can
be no question of sanction. However, if the act alleged
against a policeman is reasonably connected with discharge
of his official duty, it does not matter if the policeman has
exceeded the scope of his powers and/or acted beyond the
four corners of law.”
357 Similarly, Satyavir Singh Rathi, Assistant
35
Commissioner of Police & Ors v. State through CBI , was a case
pertaining to a fake encounter where the deceased was mistakenly
identified as a hardcore criminal and was shot down without any
provocation. The version of the police was that the police had
been attacked first, pursuant to which, they had retaliated, was
found to be false. It is in this circumstance, where the Apex
Court held that it could not, by any stretch of imagination, be
claimed by anybody that a case of murder would come within the
34 (2020) 7 SCC 695
35 (2011) 6 SCC 1
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expression “colour of duty”. Accordingly, the Apex Court
dismissed the appeals of the concerned policemen against
conviction under Section 302, which was duly confirmed by the
High Court.
358 Similarly, in Virupaxappa Veerappa Kadampur v. State
36
of Mysore , the Apex Court in para 9 has observed as under:
“9. The expression “under colour of something” or “under
colour of duty”, or “under colour of office”, is not
infrequently used in law as well as in common parlance.
Thus in common parlance when a person is entrusted with
the duty of collecting funds for, say, some charity and he
uses that opportunity to get money for himself, we say of
him that he is collecting money for himself under colour of
making collections for a charity. Whether or not when the
act bears the true colour of the office or duty or right, the
act may be said to be done under colour of that right,
office or duty, it is clear that when the colour is assumed as
a cover or a cloak for something which cannot properly be
done in performance of the duty or in exercise of the right
or office, the act is said to be done under colour of the
office or duty or right. It is reasonable to think that the
legislature used the words “under colour” in Section
161(1) to include this sense. It is helpful to remember in
this connection that the words “colour of office” has been
stated in many law lexicons to have the meaning just
36 AIR 1963 SC 849
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indicated above. Thus in Wharton's Law Lexicon, 14th
Edn., we find at p. 214 the following:
“Colour of office”
“When an act is unjustly dons by the countenance of
an office, being grounded upon corruption, to which
the office is as a shadow and colour.”
In Stroud's Judicial Dictionary, 3rd Edn., we find the
following at p. 521.
Colour:“‘Colour of office' is always taken in the
worst part, and signifies an act evil done by the
countenance of an office, and it bears a dissembling
face of the right of the office, whereas the office is but
a veil to the falsehood, and the thing is grounded upon
vice, and the Office is as a shadow to it. But ‘by reason
of the office’ and ‘by virtue of the office’ are taken
always in the best part.”
359 What can be culled out from the aforesaid decisions is
that protection is afforded to honest and sincere officers, who
perform their duty honestly and to the best of their ability, to
further public duty. Protection is also afforded to public servants,
even if, they exceed their duty provided there is a reasonable
connection between the act and the official duty and that merely
because a public servant exceeded in his duty, would not be a
ground to deprive him of the said protection under Section 197.
S.Q. Pathan / N.S. Chitnis 703/867
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Thus, only when the the offence committed by a public servant is
directly and reasonably connected with the official duty, sanction
is warranted. The protection, however, is not afforded where the
crime is committed by the authority and camouflaged as an act
committed in the course of an official duty. Protection cannot be
sought under Section 197, when the act is not concerned / related
to the official duty and is pretended to be done under the ‘colour
of official duty’. It can be no part of an official duty of a public
servant to commit an offence.
360 Thus, from the aforesaid decisions, it would be
apparent, that it is the duty of the Court to see whether there is a
reasonable nexus between the incident and the acts committed by
the accused (police) in discharge of their official duty. If the
offence is directly and reasonably connected with the official duty,
sanction is necessary and if not a part of the official duty, sanction
is not warranted.
S.Q. Pathan / N.S. Chitnis 704/867
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361 Having recorded the findings as stated aforesaid, we
are clearly of the opinion, that the acts committed, by no stretch
of imagination, can be said to be acts committed by the police
appellants/accused in the course of their official duty, thus
warranting protection under Section 197 Cr.PC. It is no part of
official duty to commit an offence. The police officers who are
protectors of law, have grossly misused and abused their position
by abducting and killing Ramnarayan in a fake encounter and by
giving it a colour of a genuine encounter and also by abducting
Anil Bheda and in wrongfully confining him for almost a month.
362 Considering the findings recorded by us, the question
of seeking sanction before prosecuting the police
appellants/accused, would not arise and as such, the said
submission deserves to be rejected, outright. The facts as revealed
aforesaid, clearly show that the acts of the police
appellants/accused were clearly an act of murder, a cold blooded
murder and as such, by no stretch of imagination, can it be said
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to be an act committed in the course of their official duty,
warranting protection under Section 197 Cr.PC.
F. Absence of Motive – Whether fatal?
363 Learned counsel for the appellants/accused
vehemently submitted that the prosecution had miserably failed to
prove motive qua any of the appellants, as to why they would
want to kill Ramnarayan, much less, abduct Ramnarayan and Anil
Bheda, and confine Anil Bheda. They submitted that in the
absence of motive, the prosecution case, which is based on
circumstantial evidence, would fail and as such, the appellants be
acquitted of all the offences for which they have been convicted.
364 Per contra, Mr. Chavan, learned Spl. P.P vehemently
submitted that no doubt, prosecution has not been able to prove
motive, since the witnesses sought to be examined to prove the
same, turned hostile, however, that by itself, will not throw the
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prosecution case out of the window, more particularly, when the
prosecution has established and proved every other circumstance
by cogent, legal and admissible evidence. Mr. Chavan submitted
that in a case based on circumstantial evidence, failure to prove
motive, is not always fatal, provided all other circumstances are
proved by the prosecution, the chain of which is complete and
which unerringly points to the guilt of the accused and excludes
any hypothesis consistent with the innocence of the accused.
365 In order to consider, whether absence of motive is
fatal in a case of circumstantial evidence, it would be apposite to
consider the law relating to the same.
366 In Vivek Kalra v. State of Rajasthan36, in Para 6, the
Apex Court has clarified whether there is any need to establish
motive in cases of circumstantial evidence, where otherwise, the
case has been proved beyond reasonable doubt. The said para 6
reads thus:
S.Q. Pathan / N.S. Chitnis 707/867
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“6. We have considered the submissions of the learned
counsel for the parties and we agree with the learned
counsel for the appellant that from the evidence of PW 11
one could not hold that the appellant had committed the
murder of the deceased to take revenge on his uncle (PW
11), who had not given him Rs 80,000 kept in the fixed
deposit. We are, however, of the opinion that where
prosecution relies on circumstantial evidence only, motive
is a relevant fact and can be taken into consideration under
Section 8 of the Evidence Act, 1872 but where the chain of
other circumstances establishes beyond reasonable doubt
that it is the accused and the accused alone who has
committed the offence, and this is one such case, the Court
cannot hold that in the absence of motive of the accused
being established by the prosecution, the accused cannot be
held guilty of the offence. In Ujjagar Singh v. State of
Punjab [(2007) 13 SCC 90 : (2009) 1 SCC (Cri) 272] this
Court observed: (SCC p. 99, para 17)
“17. … It is true that in a case relating to
circumstantial evidence motive does assume great
importance but to say that the absence of motive
would dislodge the entire prosecution story is perhaps
giving this one factor an importance which is not due
and (to use the cliché) the motive is in the mind of the
accused and can seldom be fathomed with any degree
of accuracy.”
(emphasis supplied)
367 Similarly, the Apex Court in Ganeshlal v. State of
37
Maharashtra , in para 9 has observed as under :
37 (1992) 3 SCC 106
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“9. It is next contended that the parents, sister, maternal
uncle and uncle's daughter, A-1, A-3 to A-6 having been
acquitted the appellant cannot be convicted under Section
302 I.P.C. The question therefore, is whether it is the
appellant alone who has committed the offence or parents,
sister and two others also are participis criminis. It is true as
contended for the appellant that the evidence on record is
not sufficient to arrive at an immediate motive to commit
the crime and the case depends on circumstantial evidence.
But in circumstantial evidence also when the facts are clear
it is immaterial that no motive has been proved. Men do not
act wholly without motive. Failure to discover the motive of
the offence does not signify the non-existence of the crime.
The failure to discover motive by appropriate clinching
evidence may be a weakness in the proof of the prosecution
case, but it is not necessarily fatal as a matter of law. Proof
of motive is never an indispensable factor for conviction. In
Atley v. State of U.P. [AIR 1955 SC 807, 810 : 1955 Cri LJ
1653] , this Court held that where there is clear evidence
that the person has committed the offence, it is immaterial
where no motive for commission of the crime has been
shown. Therefore, even in the case of circumstantial
evidence, absence of motive which may be one of the
strongest links to connect the chain would not necessarily
become fatal provided the other circumstances would
complete the chain and connect the accused with the
commission of the offence, leaving no room for reasonable
doubt, even from the proved circumstances. Therefore, the
evidence of PW 4 and PW 5 partly with regard to the
motive may not be sufficient to bring home the strong
immediate motive. But the evidence of PW 5, Vanmala, that
on the fateful day, she went to her sister's house situated at
a distance of 40 to 50 ft. from her house and that she
S.Q. Pathan / N.S. Chitnis 709/867
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extended invitation to Kanchana and Kanchana's mother-in-
law to attend the “Teej” ceremony in her house was not
disputed in the cross-examination. It was around 10 to
10.15 a.m. It is not necessary to dilate the conversation for
refusal to attend the ceremony but suffice to state that the
appellant was present at that time. When Vanmala came
down from the first floor, she heard exchange of words and
somebody being beaten. After extending invitation to some
people when she returned home, her maid servant, PW 9,
after some time came and told her that her sister died. From
her evidence in this behalf, there is no contradiction, but
there is an omission of hearing exchange of words and
somebody being beaten, in her statement recorded under
Section 161 CrPC. Giving allowance to omit this part of the
evidence i.e. exchange of words and hearing the beating of
somebody, the fact remains that at 10.30 a.m. Kanchana
died. It is established from evidence of Vanmala, PW 5 that
she saw her sister Kanchana alive at about 10 to 10.15 a.m.
in the company of her husband, in-laws, sister-in-law in the
house and within a few minutes thereafter she was reported
dead while in the house solely occupied by the accused-
appellant and his family members.”
(emphasis supplied)
368 The Supreme Court in the case of Sanaullah Khan v.
38
State of Bihar has, in para 18, held as under :
“18.................Where other circumstances lead to the only
hypothesis that the accused has committed the offence, the
Court cannot acquit the accused of the offence merely
38 (2013) 3 SCC 52
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because the motive for committing the offence has not been
established in the case.”
369 In the case of Praful Sudhakar Parab v. State of
39
Maharashtra , the Apex Court in paras 25 and 26, has held as
under:
"25. One of the submissions which has been raised by the
learned Amicus Curiae is that the prosecution failed to
prove any motive. It is contended that the evidence which
was led including the recovery of bunch of keys from
guardroom was with a view to point out that he wanted to
commit theft of the cash lying in the office but no evidence
was led by the prosecution to prove that how much cash
was there in the pay office.
| Motive for committing a crime is something which is | |
|---|---|
| hidden in the mind of the accused and it has been held by | |
| this Court that it is an impossible task for the prosecution to | |
| prove what precisely have impelled the murderer to kill a | |
| particular person. This Court in Ravinder Kumar v. State of | |
| Punjab [Ravinder Kumar v. State of Punjab, (2001) 7 SCC | |
| 690 : 2001 SCC (Cri) 1384] , has laid down following in | |
| para 18: (SCC pp. 697-98) |
| “ | 18. | … It is generally an impossible task for the |
|---|---|---|
| prosecution to prove what precisely would have | ||
| impelled the murderers to kill a particular person. All | ||
| that prosecution in many cases could point to is the | ||
| possible mental element which could have been the |
39 (2016) 12 SCC 783
S.Q. Pathan / N.S. Chitnis 711/867
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| cause for the murder. In this connection we deem it | ||||||||
|---|---|---|---|---|---|---|---|---|
| useful to refer to the observations of this Court in | State | |||||||
| of H.P. | v. | Jeet Singh | [ | State of H.P. | v. | Jeet Singh | , | |
| (1999) 4 SCC 370 : 1999 SCC (Cri) 539] : (SCC p. | ||||||||
| 380, para 33) |
‘33. No doubt it is a sound principle to
remember that every criminal act was done with
a motive but its corollary is not that no criminal
offence would have been committed if the
prosecution has failed to prove the precise
motive of the accused to commit it. When the
prosecution succeeded in showing the possibility
of some ire for the accused towards the victim,
the inability to further put on record the manner
in which such ire would have swelled up in the
mind of the offender to such a degree as to
impel him to commit the offence cannot be
construed as a fatal weakness of the prosecution.
It is almost an impossibility for the prosecution
to unravel the full dimension of the mental
disposition of an offender towards the person
whom he offended.’”
370 In Paramjeet Singh (supra), the Apex Court held that
if motive is proved, that would supply a link in the chain of
circumstantial evidence but the absence thereof cannot be a
ground to reject the prosecution case. Para 54 of the said
judgment reads thus:
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“54. So far as the issue of motive is concerned, the case is
squarely covered by the judgment of this Court in Suresh
Chandra Bahri [1995 Supp (1) SCC 80 : 1995 SCC (Cri)
60] . Therefore, it does not require any further elaborate
discussion. More so, if motive is proved that would supply a
link in the chain of circumstantial evidence but the absence
thereof cannot be a ground to reject the prosecution case.
(Vide State of Gujarat v. Anirudhsing [(1997) 6 SCC 514 :
1997 SCC (Cri) 946].”
40
371 In Suresh Chandra Bahri v. State of Bihar , the Apex
Court held in para 21 as under:
“21. At the very outset we may mention that sometimes
motive plays an important role and becomes a compelling
force to commit a crime and therefore motive behind the
crime is a relevant factor for which evidence may be
adduced. A motive is something which prompts a person to
form an opinion or intention to do certain illegal act or
even a legal act but with illegal means with a view to
achieve that intention. In a case where there is clear proof
of motive for the commission of the crime it affords added
support to the finding of the court that the accused was
guilty of the offence charged with. But it has to be
remembered that the absence of proof of motive does not
render the evidence bearing on the guilt of the accused
nonetheless untrustworthy or unreliable because most often
it is only the perpetrator of the crime alone who knows as
to what circumstances prompted him to a certain course of
action leading to the commission of the crime. …”
40 1995 Supp (1) SCC 80
S.Q. Pathan / N.S. Chitnis 713/867
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372 Thus, what can be culled out from the aforesaid
judgments is, that failure to prove motive by itself, in a case of
circumstantial evidence will not throw out the prosecution case or
corrode the credibility of the prosecution case, more particularly,
when there are other circumstances brought on record, by the
prosecution, which are clinching and which would complete the
chain and connect the accused with the commission of the
offence, leaving absolutely no room for any reasonable
doubt/suspicion, even from the proved circumstances. Thus,
failure to prove motive is not always fatal. Sometimes, motive for
committing a crime is hidden in the mind of the accused and it
would well be an onerous task for the prosecution to precisely
prove, what impelled the murderer to kill a particular person.
However, in the present case, although the prosecution has failed
to prove motive, there is overwhelming evidence adduced by the
prosecution to prove the other circumstances on record by
leading cogent, legal and admissible evidence, which
circumstances clearly form a chain, pointing to the clear
S.Q. Pathan / N.S. Chitnis 714/867
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complicity of the accused, thereby, excluding any hypothesis
which is consistent with their innocence. Thus, we hold that in
the facts, failure of the prosecution to prove `motive’ is far more
fatal to the prosecution, and failure to do so, can by no means
absolve the accused against whom the prosecution has
successfully proved all the other circumstances.
G. Section 106 shift of burden of proof – It’s applicability
373 Mr. Chavan, learned Spl. PP submitted that once the
prosecution has proved abduction of Ramnarayan and Anil Bheda
th
on 11 November 2006 at around 12:30 hrs from Sector 9,
Vashi, by cogent, reliable and admissible evidence, i.e. oral and
documentary evidence, the onus would shift on the accused to
explain what happened to Ramnarayan and how Ramnarayan
reached Nana Nani Park. Mr. Chavan submitted that it is not the
case of accused that in the intervening period i.e. between
abduction and the death of Ramnarayan, Ramnarayan escaped
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from their custody and was thereafter found at Nana Nani Park,
pursuant to which the encounter took place. Mr. Chavan
submitted that the accused have miserably failed to discharge the
said burden cast on them under Section 106 of the Evidence Act.
374 Per Contra, learned counsel for the appellants/accused
submitted that the question of shifting of burden under Section
106 would arise, only if the prosecution had proved its case,
beyond all reasonable doubt, which it had not.
375 As noted herein-above, we have come to the
conclusion that the prosecution has conclusively proved by
cogent, reliable and admissible evidence, the abduction of
th
Ramnarayan and witness Anil Bheda on 11 November 2006 at
around 12:30 hrs from Sector 9, Vashi and the custodial death of
Ramnarayan. Under these circumstances, the onus would lie on
the appellant-accused to explain what happened to Ramnarayan
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and how he reached Nana Nani Park on the very same day at
around 20:10 hrs. It is not the case of the appellants that post the
abduction and before Ramnarayan was shot at Nana Nani Park,
Ramnarayan escaped from the clutches/custody of the appellants
and was thereafter found at the Nana Nani Park, after which
Ramnarayan was shot in a genuine encounter and as narrated in
the FIR i.e. C.R. No. 302/2006, lodged by A9.
376 The Apex Court in Prithipal Singh & Ors. v. State of
Punjab & Anr.40, has observed that it is very difficult to get
evidence against the policemen responsible for custodial death
and therefore, when it comes to such matters, law requires for
adoption of a realistic approach rather than a narrow technical
approach considering that torture and custodial death have
always been condemend by the courts and the same stern view is
also consistent with that of the Constitution and the Protection of
Human Rights Act, 1993.' The same can also be reflected in the
th
recommendation of 113 Report of the Law Commission of India,
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where an amendment to the Evidence Act, 1872 was suggested in
order to provide that in case of custodial injuries, if there is evidence,
the court may presume that the injury was caused by the police having
the custody of that person during that period. And the onus to prove
contrary is on the police authorities.
377
In Gauri Shanker Sharma v. State Of U.P40, this
Court held in paras 15 and 17 as under :
“15. … it is generally difficult in cases of deaths in police custody
to secure evidence against the policemen responsible for resorting
to third degree methods since they are in charge of police station
records which they do not find difficult to manipulate as in this
case…..”
17. … The offence is of a serious nature aggravated by the fact
that it was committed by a person who is supposed to protect the
citizens and not misuse his uniform and authority to brutally
assault them while in his custody. Death in police custody must be
seriously viewed for otherwise we will help take a stride in the
direction of police raj. It must be curbed with a heavy hand. The
punishment should be such as would deter others from indulging
in such behaviour. There can be no room for leniency. We,
therefore, do not think we would be justified in reducing the
punishment imposed by the trial court.”
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378 Similarly, in Munshi Singh Gautam v. State of
M.P.40, the Apex Court held that peculiar type of cases must be
looked at from a prism different from that used for ordinary
criminal cases for the reason that in a case where the person is
alleged to have died in police custody, it is difficult to get any
kind of evidence. The Apex Court observed in paras 6 and 7 as
under:
“6. Rarely in cases of police torture or custodial death, direct
ocular evidence is available of the complicity of the police
personnel, who alone can only explain the circumstances in
which a person in their custody had died. Bound as they are
by the ties of brotherhood, it is not unknown that police
personnel prefer to remain silent and more often than not
even pervert the truth to save their colleagues ….
7. The exaggerated adherence to and insistence upon the
establishment of proof beyond every reasonable doubt by the
prosecution, at times even when the prosecuting agencies are
themselves fixed in the dock, ignoring the ground realities,
the fact situation and the peculiar circumstances of a given
case, as in the present case, often results in miscarriage of
justice and makes the justice-delivery system suspect and
vulnerable. In the ultimate analysis society suffers and a
criminal gets encouraged. Tortures in police custody, which
of late are on the increase, receive encouragement by this
type of an unrealistic approach at times of the courts as well,
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because it reinforces the belief in the mind of the police that
no harm would come to them if one prisoner dies in the lock-
up because there would hardly be any evidence available to
the prosecution to directly implicate them in the torture. The
courts must not lose sight of the fact that death in police
custody is perhaps one of the worst kinds of crime in a
civilised society governed by the rule of law and poses a
serious threat to an orderly civilised society. Torture in
custody flouts the basic rights of the citizens recognised by
the Indian Constitution and is an affront to human dignity.
Police excesses and the maltreatment of detainees/undertrial
prisoners or suspects tarnishes the image of any civilised
nation and encourages the men in “khaki” to consider
themselves to be above the law and sometimes even to
become a law unto themselves. Unless stern measures are
taken to check the malady of the very fence eating the crop,
the foundations of the criminal justice-delivery system would
be shaken and civilisation itself would risk the consequence of
heading towards total decay resulting in anarchy and
authoritarianism reminiscent of barbarism. The courts must,
therefore, deal with such cases in a realistic manner and with
the sensitivity which they deserve, otherwise the common
man may tend to gradually lose faith in the efficacy of the
system of the judiciary itself, which if it happens, will be a sad
day, for anyone to reckon with.”
(emphasis supplied)
379 The Apex court has observed in Sucha Singh v. State
41
of Punjab , in paras 15 and 19 to 21 as under:
41 (2001) 4 SCC 375
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“15. The abductors alone could tell the court as to what
happened to the deceased after they were abducted.
When the abductors withheld that information from the
court there is every justification for drawing the
inference, in the light of all the preceding and succeeding
circumstances adverted to above, that the abductors are
the murderers of the deceased.
………
19. We pointed out that Section 106 of the Evidence
Act is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to cases
where the prosecution has succeeded in proving facts for
which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by
virtue of special knowledge regarding such facts failed to
offer any explanation which might drive the court to
draw a different inference.
20. We have seriously bestowed our consideration on the
arguments addressed by the learned Senior Counsel. We
only reiterate the legal principle adumbrated in State of
W.B. v. Mir Mohd. Omar [(2000) 8 SCC 382 : 2000
SCC (Cri) 1516] that when more persons than one have
abducted the victim, who is later murdered, it is within
the legal province of the court to justifiably draw a
presumption depending on the factual situation, that all
the abductors are responsible for the murder. Section 34
IPC could be invoked for the aid to that end, unless any
particular abductor satisfies the court with his
explanation as to what else he did with the victim
subsequently, i.e., whether he left his associates en route
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or whether he dissuaded others from doing the extreme
act etc. etc.
21. We are mindful of what is frequently happening
during these days. Persons are kidnapped in the sight of
others and are forcibly taken out of the sight of all others
and later the kidnapped are killed. If a legal principle is to
be laid down that for the murder of such kidnapped there
should necessarily be independent evidence apart from
the circumstances enumerated above, we would be
providing a safe jurisprudence for protecting such
criminal activities. India cannot now afford to lay down
any such legal principle insulating the marauders of their
activities of killing kidnapped innocents outside the ken
of others.We are mindful of what is frequently happening
during these days. Persons are kidnapped in the sight of
others and are forcibly taken out of the sight of all others
and later the kidnapped are killed. If a legal principle is to
be laid down that for the murder of such kidnapped there
should necessarily be independent evidence apart from
the circumstances enumerated above, we would be
providing a safe jurisprudence for protecting such
criminal activities. India cannot now afford to lay down
any such legal principle insulating the marauders of their
activities of killing kidnapped innocents outside the ken
of others.”
42
380 In Chaman & Anr. v. State of Uttarakhand , the
Apex Court observed that cases of abduction being a criminal
42 (2016) 12 SCC 76
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offence per se, carries a higher degree of culpability as compared
to last seen evidence. In paras 27 to 30, of the said judgment, it
is observed as under:
“27. Significantly, the proved abduction of the deceased
from his house by the appellants is per se a criminal offence
and carries with it a much higher degree of sinister
culpability compared to any phenomenon of “last seen
together”, simpliciter. Further the deceased being in the
custody of the appellants after his abduction on 12-6-1996,
it was within their special knowledge as to how he had been
dealt with by them thereafter before his dead body was
found in a decomposed state in a nearby jungle. No
explanation is forthcoming in any form in this regard from
the appellants.
28. This Court in Mir Mohammad Omar [State of W.B. v.
Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC
(Cri) 1516] in a somewhat similar fact situation, where the
deceased was abducted by the accused persons and
thereafter his mangled body was found, held that the
pristine rule that the burden of proof is on the prosecution
to prove the guilt of the accused should not be taken as a
fossilised doctrine as if it admits of no process of intelligent
reasoning. It was enunciated that the doctrine of
presumption is not alien to the above rule, nor would it
impair the temper of the rule qua the purport of
presumption of fact as a rule in the law of evidence. It was
observed thus: (SCC p. 392, para 33)
S.Q. Pathan / N.S. Chitnis 723/867
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“33. Presumption of fact is an inference as to the
existence of one fact from the existence of some other
facts, unless the truth of such inference is disproved.
Presumption of fact is a rule in law of evidence that a
fact otherwise doubtful may be inferred from certain
other proved facts. When inferring the existence of a
fact from other set of proved facts, the court exercises a
process of reasoning and reaches a logical conclusion as
the most probable position. The above principle has
gained legislative recognition in India when Section 114
is incorporated in the Evidence Act. It empowers the
court to presume the existence of any fact which it
thinks likely to have happened. In that process the court
shall have regard to the common course of natural
events, human conduct, etc. in relation to the facts of the
case.”
29. Adverting to the facts, this Court in Mir Mohammad
Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8
SCC 382 : 2000 SCC (Cri) 1516] ruled that as the
prosecution had succeeded in establishing that the deceased
had been abducted by the accused, they alone knew what
happened to him until he was with them and if he was
found murdered in a short time, after the abduction, the
permitted reasoning process would enable the Court to
draw the presumption that the accused had murdered him.
It was held that such inference can be disrupted, if the
accused would tell the Court what else had happened to the
deceased at least until he was in their custody. Referring to
Section 106 of the Evidence Act, it was propounded that
the said section was not intended to relieve the prosecution
of its burden to prove the guilt of the accused beyond
reasonable doubt, but would apply to cases where
prosecution had succeeded in proving facts from which a
S.Q. Pathan / N.S. Chitnis 724/867
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reasonable inference could be drawn regarding the existence
of certain other facts, unless the accused, by virtue of his
special knowledge regarding such facts, succeed to offer any
explanation, to drive the court to draw a different
inference.
30. The following observations by this Court in the context
of above legal provision in Shambhu Nath Mehra v. State of
Ajmer [Shambhu Nath Mehra v. State of Ajmer, AIR 1956
SC 404 : 1956 Cri LJ 794] were adverted to with approval:
(AIR p. 406, para 11)
“11. This lays down the general rule that in a criminal
case the burden of proof is on the prosecution and
Section 106 is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet certain
exceptional cases in which it would be impossible, or at
any rate disproportionately difficult for the prosecution
to establish facts which are “especially” within the
knowledge of the accused and which he could prove
without difficulty or inconvenience.
The word “especially” stresses that it means facts that
are pre-eminently or exceptionally within his
knowledge.” (Mir Mohammad Omar case [State of
W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 :
2000 SCC (Cri) 1516] , SCC p. 393, para 38).
381 The Apex Court in State of M.P. v. Shyamsunder
43
Trivedii & Ors . , observed in para 17 of the said judgment, as
under :
43 (1995) 4 SCC 262
S.Q. Pathan / N.S. Chitnis 725/867
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“17. From our independent analysis of the materials on
the record, we are satisfied that Respondents 1 and 3 to 5
were definitely present at the police station and were
directly or indirectly involved in the torture of Nathu
Banjara and his subsequent death while in the police
custody as also in making attempts to screen the offence to
enable the guilty to escape punishment. The trial court and
the High Court, if we may say so with respect, exhibited a
total lack of sensitivity and a “could not care less” attitude
in appreciating the evidence on the record and thereby
condoning the barbarous third degree methods which are
still being used at some police stations, despite being illegal.
The exaggerated adherence to and insistence upon the
establishment of proof beyond every reasonable doubt, by
the prosecution, ignoring the ground realities, the fact-
situations and the peculiar circumstances of a given case, as
in the present case, often results in miscarriage of justice
and makes the justice delivery system a suspect. In the
ultimate analysis the society suffers and a criminal gets
encouraged. Tortures in police custody, which of late are
on the increase, receive encouragement by this type of an
unrealistic approach of the courts because it reinforces the
belief in the mind of the police that no harm would come
to them, if an odd prisoner dies in the lock-up, because
there would hardly be any evidence available to the
prosecution to directly implicate them with the torture.
The courts must not lose sight of the fact that death in
police custody is perhaps one of the worst kind of crimes in
a civilised society, governed by the rule of law and poses a
serious threat to an orderly civilised society. Torture in
custody flouts the basic rights of the citizens recognised by
the Indian Constitution and is an affront to human dignity.
S.Q. Pathan / N.S. Chitnis 726/867
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Police excesses and the maltreatment of
detainees/undertrial prisoners or suspects tarnishes the
image of any civilised nation and encourages the men in
‘Khaki’ to consider themselves to be above the law and
sometimes even to become law unto themselves. Unless
stern measures are taken to check the malady, the
foundations of the criminal justice delivery system would
be shaken and the civilization itself would risk the
consequence of heading towards perishing. The courts
must, therefore, deal with such cases in a realistic manner
and with the sensitivity which they deserve, otherwise the
common man may lose faith in the judiciary itself, which
will be a sad day.”
382 Keeping in mind the aforesaid, we now advert to the
prosecution case, as spelt out herein-above and the evidence that
has come on record and discussed under each of the
circumstances. We find that the prosecution has proved
abduction of Ramnarayan and Anil Bheda, by the appellants-
accused by leading cogent, admissible and legal evidence.
383 The appellants have not whispered even a word with
respect to what happened to Ramnarayan (deceased), after his
abduction from Vashi. Ofcourse, it is the case of the some of the
S.Q. Pathan / N.S. Chitnis 727/867
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appellants/accused, that Ramnarayan was shot in a genuine
encounter. Infact, once the prosecution has successfully proved
abduction, the burden would shift on the accused under Section
106 of the Evidence Act, to show what happened to Ramnarayan.
This burden has not been discharged by the accused. Infact, we
may observe, that in the facts, the prosecution has been able to
successfully demolish the case of the accused that it was a
genuine encounter. The same is done by leading evidence, both
oral and documentary. The evidence on record clearly reveals
that A9 had lodged a false FIR i.e. C.R. No.302/2006, to cover
up a fake encounter, when infact Ramnarayan had died in police
custody. The prosecution having proved abduction, as well as
murder of Ramnarayan, it was incumbent on the appellants–
accused under Section 106 to offer some explanation. Thus, this
is an additional circumstance, in the chain of circumstances
already proved by the prosecution. It is well settled that Section
106 of the Evidence Act does not relieve the prosecution of its
initial burden to prove the guilt of the accused beyond reasonable
S.Q. Pathan / N.S. Chitnis 728/867
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doubt, which the prosecution, in this case, has done. However,
the accused have not been able to discharge the burden cast on
them i.e. what happened to Ramnarayan after his abduction i.e.
facts within the special knowledge of the accused or how
Ramnarayan died. The accused having failed to offer any
explanation, it is not possible for the Court to draw a different
inference.
H. Conclusion
384 It is well settled, how evidence is to be appreciated in
custodial death cases, since direct ocular evidence vis-a-vis the
complicity of the police personnel is rarely available. Although,
in the present case, direct evidence was available i.e. of Anil
Bheda’s evidence, since he too was abducted with Ramnarayan,
however, Anil Bheda, was abducted and killed a few days before
his evidence could be recorded and hence, the prosecution has
relied on circumstantial evidence, as detailed herein-above.
S.Q. Pathan / N.S. Chitnis 729/867
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385 In Munshi Singh Gautam (supra), the Apex Court in a
custodial death case has in para 7 observed as under; “The Courts
must deal with such cases in a realistic manner and with sensitivity
which they deserve, otherwise the common man may gradually lose
faith in the efficacy of judiciary itself.” It was also observed that
exaggerated adherence to and insistence upon the establishment of
proof beyond reasonable doubt by the prosecuting agencies are
themselves fixed in the dock, ignoring the ground realities, often
results in miscarriage of justice.
386 Similarly, the Apex Court in Prithipal Singh & Ors.
(supra) has observed that, it is generally difficult in cases of
deaths in police custody to secure evidence against the policemen
responsible for resorting to third degree methods, since they are
in charge of police station records, which they do not find
difficult to manipulate and hence law requires for adoption of a
realistic approach rather than a narrow technical approach in
cases of custodial crimes.
S.Q. Pathan / N.S. Chitnis 730/867
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387 We have perused the entire evidence, oral and
documentary, adduced by the prosecution, in support of its case
and find that the prosecution has proved each of the circumstance
relied upon by them, beyond reasonable doubt as against all the
police personnel and one another accused. The evidence led by
the prosecution, both oral and documentary is cogent, reliable
and legally admissible. We have whilst dealing with each of the
circumstances relied upon by the prosecution, under the
headings; Formation of Squad; Abduction; Encounter/Custodial
Death/Murder; Ballistic Evidence/Forensic Evidence; Wrongful
Confinement of Anil Bheda; Pressure tactics/manipulation by
accused persons to cover up C.R. No. 302/2006; CDRs; and
Criminal Conspiracy, have recorded our findings/observations in
each of the said circumstance, in great detail keeping in mind the
evidence led and hence will be referring to each of the said
circumstances very briefly.
S.Q. Pathan / N.S. Chitnis 731/867
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388 It is pertinent to note that the investigation in the
present case started after almost three years in 2009, after the
Division Bench of this Court directed constitution of a SIT and
registration of an FIR as against the accused. Accordingly, an FIR
came to be registered at the behest of PW1-complainant (brother
of the deceased), only because of his sheer tenacity, grit and
determination to expose the persons responsible for the murder
of his brother and to get justice. It is also pertinent to note that
after SIT took over the investigation of the said case and started
recording the statements of witnesses, some of the witnesses were
threatened and intimidated, so that they do not depose against
the accused or spill the beans. Some were even asked to leave the
city or to depose falsely.
389 Anil Bheda was a prime/star witness for the
prosecution i.e. with respect to his and Ramnarayan’s abduction
i.e. how they were taken from Vashi to Bhandup, from Bhandup
S.Q. Pathan / N.S. Chitnis 732/867
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to D.N. Nagar and how he was confined thereafter for a month.
Anil Bheda’s statement was recorded by SIT under Section 161 on
rd
3 September 2009 as well as before the learned Magistrate on
th
30 December 2009, disclosing the complicity of the accused.
Anil Bheda had also identified the accused who abducted him i.e.
A2, A3, A4, A6, A7, A8, A10 and A12 in the three, TIPs
conducted. However, before his evidence could be recorded, i.e.
th
after charge was framed on 8 March 2011 in the case, and
before his evidence was recorded i.e. his evidence was to be
th
recorded on 16 March 2011, Anil Bheda was abducted and
th
killed on 13 March 2011. Anil Bheda’s body was found in a
burnt condition and could only be identified because of the DNA.
We are informed that the investigation of the said case is still
pending with the State CID since 2011. It appears that no steps
have been taken by the State CID to conclude the investigation in
the said case and trace the perpetrators i.e. persons responsible
for Anil Bheda’s death.
S.Q. Pathan / N.S. Chitnis 733/867
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390 The prosecution, despite several odds, has done
remarkable investigation in the said case. The SIT constituted
under PW110-K.M.M. Prasanna and the other team members i.e.
PW107-Manoj Chalke, PW108-Vinay Ghorpade and PW109-
Sunil Gaonkar have taken sincere efforts to collect evidence in
the form of station diaries, CDRs, etc. and have recorded the
statements of witnesses, under 161 as well as before the
Magistrate under 164 Cr.PC Because of the efforts of SIT i.e.
K.M.M. Prasanna and his team of officers, who diligently and
meticulously collected voluminous record, despite all odds faced
by them, including the prime witness–Anil Bheda being killed, just
three days before he could depose, the prosecution could succeed
in bringing home the guilt of the appellants/accused, who are
police personnel and one, a private person. It was a mammoth
task. The efforts taken by the members of the SIT are indeed
commendable, in particular, having regard to the fact, that some
of the accused were decorated police officers.
S.Q. Pathan / N.S. Chitnis 734/867
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391 The prosecution has been able to establish that a
squad was formed and that it existed under OA1, albeit illegal,
through the evidence of witnesses, that some police personnel i.e.
A15, A2, A3 and A7, were deputed to D.N. Nagar Police Station
from different police stations, under OA1 and A13 and A16 were
assisting OA1. The prosecution has not only brought oral
evidence of PW20, PW25, PW32, PW43, PW45, PW55, PW72,
PW79, PW82 and PW87 on record to prove that a squad existed,
but has also supported the said oral evidence by documentary
evidence, in the form of station diary entries/documents. Thus,
there was a squad, which existed under OA1, has been duly
proved by the prosecution. We have in detail, dealt with the
evidence adduced by the prosecution vis-a-vis squad, whilst
dealing with the said circumstance i.e. ‘Formation of Squad’ and
have recorded our finding. We, having regard to the
overwhelming evidence on record, find that the finding recorded
by the trial Judge, that the prosecution had failed to prove the
existence of a squad, is perverse, inasmuch as, the learned Judge
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had relied only on the evidence of PW78-Bipin Bihari, Addl. CP.
West Region, without considering the overwhelming evidence of
other witnesses that had come on record vis-a-vis existence of a
squad under OA1, the station diary entries and ofcourse, no cross
of some of the witnesses on the same. We have observed that
PW78-Bipin Bihari, Addl. CP, West Region, for obvious reasons,
had denied sending any person on deputation or that a squad
existed. Obviously, PW78, the Addl. CP would have been in the
dock. Thus, the prosecution has successfully proved the existence
of a squad under OA1.
392 It is also pertinent to note, that the evidence of
PW87-Ajendrasingh Thakur, clearly shows that some of the team
members of the squad were also involved in the encounter which
took place at Kala-Ghoda, in which OA1 and A9 were members.
In the said encounter which took place at Kala-Ghoda, the police
personnel involved were OA1, A2, A3, A7, A9, A15, A16, A18,
and A22. Learned Spl. PP also submitted that whilst on parole in
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the present case (Lakkhanbhaiya case), A7 committed another
offence i.e. was involved in the Antilia Case (Mansukh Hiren
Murder) in which OA1 is also an accused alongwith others.
393 The prosecution has also by cogent and legally
admissible evidence, proved abduction of Anil Bheda and
th
Ramnarayan on 11 November 2006 at around 12:35 hrs. We
have, while considering the evidence of abduction, having regard
to the principle in Section 6 of res gestae held the disclosures
made by Nilesh to PW38-Dheeraj Mehta and by Anil Bheda to
PW40-Aruna Bheda as admissible, for reasons set out therein. We
have found that the said disclosure made by Nilesh to PW38 was
immediate, spontaneous, contemporaneous, having regard to the
fact that within, 3 to 4 minutes, Nilesh disclosed to PW38 that his
friend and friend’s friend were abducted in a Qualis by 5 to 6
persons in civil dress. The said news was immediately
communicated by PW38 to PW57-Girish Nepali and thereafter,
calls were exchanged between PW38, PW57, PW3 and PW1.
S.Q. Pathan / N.S. Chitnis 737/867
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The evidence of the said witnesses is duly
corroborated by the CDRs, and is a testimony of the prompt
responses to each other. The evidence of each of these witnesses
is duly corroborated by each other and also by the evidence of
PW40-Aruna Bheda. The evidence of the said witnesses is again
duly corroborated by the telegrams and faxes sent by PW1 and
PW2 in the name of Aruna Bheda to various authorities soon
thereafter i.e between the period 14:00 hrs to 18:28 hrs. The
details of the faxes and telegrams sent, have been dealt with by us
in detail, whilst discussing the circumstance of ‘abduction’. One
of the fax sent to the CP, Thane, reads thus :
“RESPECTED SIR,
THIS IS TO BRING TO YOUR KIND NOTICE
THAT MY HUSBAND ANIL BHEDA AND HIS FRIEND
RAMNARAYAN VISHWANATH GUPTA HAS BEEN
PICKED UP BY PLAIN CLOTHES POLICEMAN FROM
SECTOR 9, VASHI, NAVI MUMBAI, THAT THE SAID
POLICEMAN WERE IN A SILVER COLOUR QUALIS CAR.
S.Q. Pathan / N.S. Chitnis 738/867
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I SUSPECT THAT THEY WILL KILL THEM IN
A FAKE ENCOUNTER.
PLEASE SAVE THEIR LIFE.”
FROM
ARUNA ANIL BHEDA
SECTOR 29, VASHI,
DIAMOND APARTMENT
NAVI MUMBAI.”
The sending of faxes/telegrams is also corroborated by
the various authorities, who either sent the faxes/telegrams or
who received the said faxes and telegrams. The faxes and
telegrams were also sent to the Chief Minister and Deputy Chief
Minister on the very same day, prior to the alleged encounter by
the police. All the faxes and telegrams were sent, soon after
receiving the information and prior to the alleged encounter of
Ramnarayan by the police. It is also pertinent to note that prior to
th
11 November 2006, watch was being kept by some of the
appellants on the house of Anil Bheda, where Ramnarayan would
visit/stay. The same is again duly corroborated by the CDRs of the
appellants/accused, most of whom are police personnel i.e. A2,
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A3 and A7. It is pertinent to note, that the police personnel who
were party to the abduction, were deputed to D.N. Nagar Police
Station, Mumbai, a different Commissionerate, whereas, their call
records show their presence in a different Commissionerate area
i.e. Navi Mumbai. It is also pertinent to note, that neither of
their residences are in Navi Mumbai. A2 lived at Mira Road
(East), Thane; A3 at Bandra (West), Mumbai and A7 at Kalwa,
Thane. No explanation whatsoever has been offered by any of
the appellant/accused to even remotely suggest how and why they
were present in Navi Mumbai, as reflected from the CDRs. That
A2, A3 and A7 were using the mobile numbers as alleged by the
prosecution, has also been duly proved by the prosecution,
through the witnesses examined in this behalf.
394 Thus, the evidence on record shows that Ramnarayan
th
and Anil Bheda were abducted on 11 November 2006 at around
12:35 hrs. in a Qualis by some of the appellants/accused, who
were tracking the whereabouts of Ramnarayan from the previous
day. Both, Anil Bheda and Ramnarayan, according to the
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prosecution, were taken to Bhandup and thereafter to D.N. Nagar
Police Station. It is pertinent to note that neither Anil Bheda’s nor
Ramnarayan’s mobiles were active, post 12:30 hrs., i.e.
th
Ramnarayan’s last call, as per the CDR is 12:33 hrs on 11
November 2006.
395 Once the prosecution has succeeded in showing that
Ramnarayan and Anil Bheda were abducted, the onus would then
shift on the appellants/accused to show what happened to
Ramnarayan thereafter. It is not the prosecution case that
Ramnarayan escaped and as such, was again apprehended at Nana
Nani Park and was shot in a genuine encounter. Even though the
burden would be on the appellants/accused under Section 106 of
the Evidence Act, to show what happened to Ramnarayan, we
may observe here, that the prosecution has also proved the
circumstance of custodial death/murder of Ramnarayan by leading
cogent evidence, both, oral as well as documentary. We have dealt
with in great detail how the encounter of Ramnarayan was a fake
S.Q. Pathan / N.S. Chitnis 741/867
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encounter, whilst dealing with the said circumstance of
murder/custodial death of Ramnarayan. The evidence on record
shows that the encounter as alleged by the police was not a
genuine encounter, in which 12 persons are stated to have
participated, but a fake encounter, which was attempted to be
given a colour of a genuine encounter. There is overwhelming
evidence to show that the encounter was a fake encounter i.e.
registration of a false FIR (C.R. No.302/2006); that the spot
panchnama was not recorded at the spot; no meeting was held in
A9’s cabin; creation of false station diary entries and documents;
planting of a revolver and railway tickets on the deceased; the
ballistic expert’s report; non-finding of the fingerprints on the
weapon allegedly used by Ramnarayan; finding of only one foot
diameter blood, considering the number of wounds sustained by
Ramnarayan i.e. one on his forehead, one on his right finger and
two on his chest; the distance of firing and so on. We have in
great detail dealt with the same, whilst considering the
circumstance of ‘Encounter/Custodial Death/Murder’.
S.Q. Pathan / N.S. Chitnis 742/867
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396 The evidence on record also shows how A9 and some
of the appellants/accused manipulated the records to show that it
was a genuine encounter. The evidence clearly reveals that the
spot panchnama was not prepared at the spot, but was prepared at
Versova Police Station. The testimony of PW73 would clearly
reveal the same. PW73’s testimony has not been shattered, despite
a gruelling cross. It is also evident from the evidence on record
that though A9 has alleged that he had informed the superior
officers and had sought permission to conduct the operation, all
the witnesses have deposed, to the contrary i.e. they were not
informed about the operation. It also appears that false station
diaries were created to cover up the fake encounter and false
evidence was created by planting railway tickets and weapon on
the person of Ramnarayan.
397 The prosecution has also proved by cogent, legal and
admissible evidence the ballistic expert’s report, through PW86-
Gautam Ghadge. The said ballistic expert’s evidence and report
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clearly shows that A9, A15, OA1 and A2 had fired at the
deceased. That the firing was from a close distance of around 2
meters has also been established by PW86-Gautam Ghadge and
PW29-Dr Gajanan Chavan. The learned trial Court Judge has
also accepted and relied on the said evidence, however, despite
recording the said finding, has acquitted OA1, after observing that
except this, there is no other evidence qua him.
398 The evidence of wrongful confinement of Anil Bheda
has also been proved by the prosecution i.e. Anil Bheda was
wrongful confined at Bhatwadi, Ghatkopar, thereafter at
Kolhapur in a hotel for 3 to 4 days, and thereafter, at Mid-town
Hotel at Andheri (West), Mumbai. The evidence vis-a-vis
wrongful confinement of Anil Bheda is overwhelming and clearly
shows the complicity of the appellants/accused in confining Anil
Bheda at the aforesaid places. The same has been deposed to by
PW40, inasmuch as, PW40-wife of Anil Bheda was asked to call
on two numbers i.e. of A2 and A3. The fact that the said calls
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were made, is also duly supported by the CDRs of A2 and A3.
PW40, has identified A2, A3 (confinement at Bhatwadi) and A5
(confinement at Kolhapur) There is evidence of other witnesses,
which clearly reveals that Anil Bheda was confined by the
appellants/accused i.e. A2, A3, A5 and A13. Anil Bheda was
th th
confined from 11 November 2006 to around 12 December
2006, at different places. The purpose of confining Anil Bheda
was far too obvious, that Anil Bheda does not spill the beans and
reveal the truth.
399 All the aforesaid evidence of the witnesses i.e. on
abduction, murder and wrongful confinement is duly
corroborated by the CDRs. The prosecution has examined as
many as seven Nodal Officers, i.e. PW54, PW62, PW65, PW69,
PW85, PW89 and PW97, of various companies to prove the
information supplied by them, at the behest of SIT. No question
was asked with respect to requirement of Section 65B Certificate
to all the Nodal Officers and as such, the prosecution has been
S.Q. Pathan / N.S. Chitnis 745/867
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able to prove the CDRs of the appellants/accused i.e. the spots at
which they were present at the time of abduction i.e. at Navi
Mumbai to Bhandup to D.N. Nagar Police Station and from D.N.
Nagar Police Station to Nana Nani Park. Some of the mobile
numbers stood in the names of the appellants/accused, some in the
name of others. Most of the appellants/accused have denied
using the numbers, however, prosecution has, through the
evidence of the witnesses proved that the numbers were being
used by the appellants/accused. Infact, A5 had six numbers i.e.
XXXXXX1156, XXXXXX5068, XXXXXX5874,
XXXXXX5805, XXXXXX8104 and XXXXXX2987, registered
in his name, out of which XXXXXX2987 was used by OA1, and
XXXXXX5118 though registered in the name of Shaikh Kaider,
was used by A5. It is pertinent to note that at the time when A5
was in Kolhapur with Anil Bheda, his wife (PW40) and son, OA1’s
location is shown at D.N. Nagar Police Station (mobile
No.XXXXXX2987). Although, PW68-Geetanjali Datar, Court
Sheristedar has turned hostile, her evidence to the extent that she
S.Q. Pathan / N.S. Chitnis 746/867
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supports the prosecution, has been relied upon. PW68 has in her
evidence stated that she was using mobile bearing
No.XXXXXX2638, which stood in the name of her husband;
that she knew OA1 as an officer as he had some cases under the
Narcotics Act in different Courts, including in her Court i.e.
Court Room No.48; that there was DF matter in her Court, in
which one accused was arrested and brought before the Court,
pursuant to which the case was reopened; that OA1 was the
Investigating Officer in the said case; that once OA1 had come to
Court No.48, after which constables would attend the said case;
that a Constable told her that if a certified copy of judgment was
required, she should call OA1 on his phone and that the constable
gave her the phone number of OA1. She has further deposed that
the case was tried in October, November 2006; that in the month
of November 2006, OA1’s number was given to her. She has
th
stated that when she called on the said number on 11 November
th
2006 and 15 November 2006, she heard only “Hello” and then
the phone got disconnected, pursuant to which she received a call
S.Q. Pathan / N.S. Chitnis 747/867
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on her phone; that she disclosed that the judgment was ready and
the copy of the judgment would be received. PW68’s evidence
shows that the mobile number which she called on, was that of
OA1 (which stood in A5’s name) (Exhibit 543). PW68’s evidence
does not show, she knew A5 or had called A5. It is pertinent to
th
note that on 15 November 2006, A5 was at Kolhapur with Anil
Bheda, PW40 and their son, whereas, the said number was
operational in Mumbai and there are a number of calls from J.B.
th
Nagar (OA1’s residence) and D.N. Nagar Police Station. On 15
November 2006, at 21:24 hrs., OA1 spoke to PW68 for 62
seconds. The evidence on record also shows exchange of several
calls between PW78-Bipin Bihari, Addl. CP. West Region,
Mumbai, and the mobile number standing in A5’s name, but used
by OA1. PW78 has categorically stated that he did not know A5.
400 The accused, in order to cover up the fake encounter,
used pressurizing tactics on witnesses, manipulated records and
the said evidence has also been brought on record by the
S.Q. Pathan / N.S. Chitnis 748/867
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prosecution. The evidence on record shows how A9 threatened
the learned Magistrate to submit a report under Section 167
Cr.P.C, that the encounter was not a fake encounter, pursuant to
which, he was convicted by the High Court in a Suo Motu
Contempt Petition for three months. The SLP against the said
order was also dismissed by the Apex Court. The evidence
brought on record also shows that A9’s brother, who was an ACP
at the relevant time, attempted to interfere in the investigation by
pressurizing police officers to record 164 statements of witnesses,
despite the matter being subjudice before the High Court (Writ
Petition filed by PW1); and the evidence, that pressurizing tactics
were employed to send PW38 out of Mumbai, so that, he does
not depose before SIT. The said incident was soon after SIT was
constituted by the High Court. Evidence on record also shows
that one advocate who was appearing for some of the
appellants/accused was present alongwith A5, when PW38 visited
the office of SIT, pursuant to which, he gave his earlier statement
before SIT as well as before the learned Magistrate. The
S.Q. Pathan / N.S. Chitnis 749/867
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additional affidavit of A9 reveals that the statement of the
fingerprint expert was recorded nearly three years after the
incident, more particularly, when A9 was posted at D.N. Nagar
Police Station, Andheri and was, in no way, connected with C.R.
No. 302/2006. The said statement is annexed by A9 to his
affidavit filed by him in the writ petition. It is pertinent to note
that A9 has filed an affidavit stating how the encounter took
place, as according to him, it was a genuine encounter done in
the course of his official duty. The fact that it was a genuine
encounter has also been accepted by three accused i.e. A2, A9 and
A15. Similarly, A11, A13, A16, A18 and A19 accept the
genuineness of the C.R. i.e. C.R. No.302/2006, as evident from
their answers to the Q.No.155, put to them under Section 313
Cr.PC. As far as A17 is concerned, he has pleaded ignorance of
C.R. No.302/2006 and stated that he was there at the spot, post
the incident, only to help. The evidence on record also shows
that the spot panchnama was prepared at the police station itself
and not at the spot where the alleged encounter took place.
S.Q. Pathan / N.S. Chitnis 750/867
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401 The prosecution has also proved the movement of
weapons used by the accused who fired at Ramnarayan. Ofcourse,
A9 and A15 do not dispute firing at Ramnarayan, but according
to them, it was a genuine encounter. The fact, that Ramnarayan
was fired at by OA1, A2, A9 and A15’s weapons, is duly
supported by ballistic expert’s evidence and report. No doubt,
PW86-Gautam Ghadge, Ballistic Expert, was examined at length,
his evidence has not been shattered despite a gruelling cross.
Infact, PW86’s evidence shows that he is an expert witness and
that he had conducted all the tests as required to support his
finding i.e. Ramnarayan was fired at by OA1, A2, A9 and A15.
402 From the evidence on record, it can be clearly
inferred that each of the accused played some role or the other in
achieving their illegal object i.e. to kill Ramnarayan. We have
also dealt with this circumstance whilst dealing with the
circumstance of ‘Criminal Conspiracy’. We, keeping in mind the
circumstances on record adduced by the prosecution, find that
S.Q. Pathan / N.S. Chitnis 751/867
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when the same are taken together, would indicate the meeting of
the minds between the accused for the intended object of
committing an illegal act i.e. the murder of Ramnarayan and that
all the means adopted and illegal acts done were in furtherance
of the conspiracy hatched.
403 We may also note that the prosecution has not placed
much reliance on the circumstance of motive, inasmuch as, the
witnesses vis-a-vis, motive have turned hostile. Be that as it may,
although the circumstance of motive has not been proved by the
prosecution, in the facts of the present case, there being
overwhelming evidence in the form of other circumstances as
narrated aforesaid, failure to prove motive pales into
insignificance and in the facts, will not in anyway impact the
prosecution case.
404 We find that the prosecution through oral and
documentary evidence has proved each and every circumstance
S.Q. Pathan / N.S. Chitnis 752/867
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relied upon by them by cogent, legal and admissible evidence and
each of the said circumstance so proved by the prosecution, forms
a chain, which is so complete and which unerringly points to the
guilt of the appellants/accused and excludes any hypothesis
consistent with the innocence of the appellants/accused, who are
police personnel and one private person. The appellants/accused
who participated in the encounter are all police
officers/personnel, whose duty was to protect the people and to
uphold law and order. In the facts, far from upholding the rule of
law, the police accused have clearly acted to the contrary. These
very officers / police personnel grossly misused their positions /
power and murdered Ramnarayan in cold-blood, and gave it a
colour of a genuine encounter. We find all the appellants/accused,
who are police, and A5, a private person to be complicit in the
crime. As noted, 12 police personnel participated in the alleged
encounter, as per C.R. No. 302/2006. Almost all the police
accused had not raised any objection to their names being
disclosed in the said C.R, during the trial. We have in detail, set
S.Q. Pathan / N.S. Chitnis 753/867
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out the stand of each of the police accused in para 32 herein-
above. However, in the present appeals, some of the accused
have denied their presence, for the first time. We have, in detail,
set out the stand of each of these accused i.e. police in para 32
herein-above.
405 Death in police custody must be curbed with a heavy
hand and must be viewed seriously. There can be no room for
leniency as the persons involved i.e. the police, are the arm of the
State, whose duty is to protect the citizens and not to take law
into their hands and commit gruesome offences against them.
The protectors/guardians of law cannot be permitted to act as
criminals in uniform. If this is permitted, it would lead to
anarchy.
406 No doubt, Ramnarayan had several cases i.e. around
10 cases registered against him, however, that by itself, would not
give the appellants/accused i.e. the police and the other persons,
S.Q. Pathan / N.S. Chitnis 754/867
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license to kill. Instead of upholding the rule of law, the police
have misused their positions and uniform, and have killed
Ramnarayan in cold blood. It is pertinent to note that the last
case registered as against Ramnarayan was in the year 1998 and
that not a single case was registered as against Ramnarayan either
with D.N. Nagar Police Station, Versova Police Station or
Oshiwara Police Station.
407 Non-explanation or failure to discharge the burden
under Section 106 of the Evidence Act, as to what happened to
Ramnarayan, since Ramnarayan was in the custody of the police
after his abduction, has also not been explained by the
appellants/accused. This, in our view, will constitute an
additional circumstance in the chain of circumstances already
proved by the prosecution. The fact, as to what happened to
Ramnarayan after his abduction by the accused persons, was well
within their special knowledge and therefore they could have
S.Q. Pathan / N.S. Chitnis 755/867
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offered some explanation. We are afraid, none have not offered
any explanation.
408 As far as A5–Hitesh Solanki @ Dhabbu, a private
person is concerned, the prosecution has proved his complicity in
the crime. The role of A5 has been proved by the prosecution in
taking Anil Bheda and Aruna Bheda to Kolhapur. PW40–Aruna
Bheda has herself identified A5, as the person who accompanied
her and Anil Bheda to Kolhapur. PW40 has also deposed how
A5 gave her a prepared affidavit (Exh. 335) to submit it before
the Metropolitan Magistrate during the inquiry. The prosecution
has also examined witnesses who have identified A5, as the
person who was present at Mid-town Hotel, where Anil Bheda
th
was confined. There are calls between 26 November 2006 to
th
30 November 2006, on one of A5’s mobile No. i.e.
XXXXXX5118 from the PCO, of PW40’s father i.e. call made by
PW40 to speak to Anil Bheda. We have in detail, discussed the
S.Q. Pathan / N.S. Chitnis 756/867
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evidence whilst dealing with the circumstance of confinement of
Anil Bheda and the witnesses who have spoken about the
presence of A5 at Mid-town Hotel, Andheri. Some of the
witnesses have also deposed with respect to A5 sitting outside
OA1's office and screening persons visiting OA1. PW38 has also
disclosed A5’s presence with Advocate Brahmabhatt, a lawyer of
the accused, when he had gone to SIT for recording his statement
for the first time, so that he toes their line. The evidence on
record also shows OA1 was using mobile No. XXXXXX2987,
registered in A5’s name. Thus, the circumstances on record, qua
A5, clearly points to his complicity in the commission of the
crime.
409 The trial Court has accepted the evidence led by
prosecution, vis-a-vis abduction; murder/custodial death; the
ballistic expert’s evidence; and wrongful confinement of Anil
Bheda as against all the appellants/accused. However, we after
carefully perusing the evidence, find that the prosecution has
S.Q. Pathan / N.S. Chitnis 757/867
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proved its case beyond reasonable doubt as against the appellants,
who are police personnel i.e. A2, A3, A7, A9, A11, A13, A15,
A16, A17, A18, A19, A20 and one private person i.e. A5.
410 As far as abduction is concerned, at the cost of
repetition, we hold that the prosecution has proved beyond
reasonable doubt, that Ramnarayan and Anil Bheda were
abducted by 5-6 persons, in a Qualis. Although the prosecution
has proved that Ramnarayan and Anil Bheda were abducted in a
‘Qualis’, the only question is, whether the Qualis, was the one as
alleged by the prosecution. To that extent, we are afraid, we are
unable to record a finding on the same for the following reasons:
411 It is the prosecution case, that A10 had organised the
Qualis, in which Ramnarayan and Anil Bheda were abducted. It
is pertinent to note, that Anil Bheda had in the TIP identified A10
amongst other accused as his abductor, however, in view of Anil
Bheda’s death for want of substantive evidence, we turn to the
S.Q. Pathan / N.S. Chitnis 758/867
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other evidence placed on record by the prosecution. The
prosecution has relied on the evidence of PW14–Parmanand
Desai, PW16-Sujit Mhatre and PW48–Sandesh Chavan, to show
that the Qualis which was used in the commission of the offence
was taken by A10 from PW16-Sujit Mhatre. In connection with
the same, the prosecution examined PW14–Parmanand Desai, to
show that A10, who was working as a sweeper in the Mumbai
th
Municipal Corporation had taken half-day leave on 9 November
th th
2006; on 10 November 2006, a weekly-off and on 11
November 2006, a casual leave. PW16–Sujit Mhatre was also
examined to show that a Qualis was taken from him on hire by
A10 for his personal use in November 2006. Similarly, the
prosecution examined PW9–Sundar Tendulkar, who had
purchased the vehicle from PW16-Sujit Mhatre and PW10-
Mrugesh Negandhi, who later purchased the said vehicle from
PW9–Sundar Tendulkar.
412 Admittedly, none of the witnesses examined to prove
S.Q. Pathan / N.S. Chitnis 759/867
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abduction have spelt out the Qualis vehicle number. All that they
categorically state is that it was a Qualis vehicle. No doubt
prosecution has examined witnesses to show that A10 who was
th
working in the Municipal Corporation was on leave on 11
November 2006 and that he had taken a Qualis No. MH 04 AY
8472 on hire, from PW16 that day, that by itself, is not sufficient
to point to the complicity of A10 in the crime i.e. the very Qualis
vehicle taken by A10 on hire, was used in the abduction.
413 Although the prosecution has proved by legal, cogent
and admissible evidence that Ramnarayan and Anil Bheda were
picked up in a Qualis vehicle by 5-6 persons, the prosecution has
not proved that this was the very vehicle used in the abduction,
which was taken by A10 from PW16-Sujit Mhatre. Admittedly,
no number of the vehicle has come in the evidence and as such,
we do no deem it safe to place implicit reliance on the evidence
that has come on record with respect to the complicity of A10
vis-a-vis hiring of the vehicle from PW16–Sujit Mhatre, in
S.Q. Pathan / N.S. Chitnis 760/867
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November 2006. Similarly, merely because A10 was on ½ day
th th
leave on 9 November 2006, leave on 10 November 2006 and
th
weekly-off on 11 November 2006, by itself cannot be
incriminating. Considering the aforesaid evidence, we do not
find the said evidence sufficient to convict A10, and as such give
him benefit of doubt.
414 As far as A8, A12 and A21 (private persons) are
concerned, we are afraid that the evidence adduced by the
prosecution as far as the said appellants are concerned, has also
not been proved beyond reasonable doubt, qua the said accused.
The conviction of the said accused appears to be essentially based
on the progress report submitted by PW110–K.M.M. Prasanna.
Admittedly, the CDR’s of A8, A12 and A21 were not collected,
due to passage of time.
415 It is pertinent to note that although it is the
prosecution case that A8, A12 and A21 alongwith A4 and A10
S.Q. Pathan / N.S. Chitnis 761/867
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(all private persons) were also part of the team of abductors
alongwith A7 (police personnel) at Vashi, the evidence qua them
i.e. the private persons, has not been proved beyond reasonable
doubt. Although the prosecution has brought on record the
CDRs of A4, the CDRs of A8, A12 and A21 were not collected,
as their CDRs were not available after 3 years. It is also pertinent
to note that although A4, A5, A6, A8, A10 and A12 (private
persons) alongwith A2, A3, A7, A13 and A16 (police personnel),
were identified by Anil Bheda in the TIP I.e. the persons who
abducted and confined them, however, in view of the demise of
Anil Bheda, for want of substantive evidence with respect to the
same, we are unable to consider the said evidence of
identification. As far as A4 is concerned, the only evidence qua
A4 is his CDR, which by itself, is not sufficient. Suspicion,
however strong, cannot take the place of legal proof.
416 Considering the aforesaid, the conviction of A4, A8,
A12 and A21 (all private persons), cannot be sustained.
S.Q. Pathan / N.S. Chitnis 762/867
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417 As far as A6–Akhil Shirin Khan @ Bobby, a private
person is concerned, the prosecution submitted that A6 was one
of the trusted member of the illegal squad working with OA1;
that A6 was involved in the abduction; that A6 was at Vashi on
th th
10 November 2006 and on 11 November 2006; that A6
alongwith others took the custody of Ramnaryan and Anil
Bheda at Bhandup Complex; that A6 was in regular contact with
the accused persons, before, during and after abduction; that A6
was present at the D.N. Nagar Police Station, when deceased and
Anil Bheda were brought; and that the mobile sim card stood in
the name of A6. In short, the evidence against A6 is essentially
based on the CDRs of A6. It is again pertinent to note that A6
was identified by Anil Bheda, however, in view of Anil Bheda’s
murder before his evidence could be recorded, for want of
substantive evidence, we do not find it proper to place reliance
only on A6’s CDR for convicting A6, and as such A6’s,
conviction only on this evidence cannot be sustained.
S.Q. Pathan / N.S. Chitnis 763/867
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418 Accordingly, for the reasons aforesaid, the following
order is passed :
ORDER
(1) The judgment and order of conviction and
sentence passed by the trial Court is upheld, as against the
following appellants:
i) Nitin Gorakhnath Sartape (A11), appellant in
Criminal Appeal No.707 of 2019;
ii) Sandip s/o Hemraj Sardar (A20), appellant in
Criminal Appeal No.86 of 2021;
iii) Tanaji Bhausaheb Desai (A2), appellant in
Criminal Appeal No.104 of 2021;
iv) Pradeep Pandurang Suryawanshi (A9), appellant
in Criminal Appeal No. 151/2021;
S.Q. Pathan / N.S. Chitnis 764/867
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iv) Hitesh Shantilal Solanki @ Dhabbu (A5),
appellant No.1 in Criminal Appeal No.943/2013;
vi) Ratnakar Gautam Kamble @ Rattu (A3),
appellant No.1 in Criminal Appeal No.1038/2013;
vii) Vinayak Balasaheb Shinde @ Veenu, (A7),
appellant in Criminal Appeal No.1080 of 2019/Respondent
No.3 in CRA/182/2023;
viii) Devidas Gangaram Hari Sakpal (A13), appellant
in Criminal Appeal No.1177 of 2019;
ix) Anand Balaji Patade (A18), appellant in
Criminal Appeal No.1239 of 2019;
x) Dilip Sitaram Palande (A15), appellant in
Criminal Appeal No.1242/2018;
S.Q. Pathan / N.S. Chitnis 765/867
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xi) Pandurang Ganpat Kokam (A19), appellant in
Criminal Appeal No.1488 of 2018;
xii) Ganesh Ankush Harpude (A17), appellant in
Criminal Appeal No.1490 of 2018;
xiii) Prakash Ganpat Kadam (A16), appellant in
Criminal Appeal No.1493 of 2018.
Accordingly, the aforesaid appeals stand
dismissed qua the said appellants.
(2) As far as Janardan Tukaram Bhanage (A14),
appellant No.3 in Criminal Appeal No.943 of 2013 and
Arvind Arjun Sarvankar (A22), appellant No.3 in Criminal
Appeal No.1038 of 2013 are concerned, the appeals qua
the said appellants, do not survive in view of their demise
and as such, stand abated.
S.Q. Pathan / N.S. Chitnis 766/867
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(3) As far as Manoj Mohan Raj @ Mannu (A8),
Sunil Ramesh Solanki (A10), Mohamed Shaikh Mohd. Taka
Moiddin Shaikh (A12) and Suresh Manjunath Shetty (A21),
all appellants in Criminal Appeal No.942/2013 as well as
Akhil Shirin Khan @ Bobby (A6), appellant No.2 in
Criminal Appeal No.943/2013, and Shailendra
Dhoopnarayan Pandey (A4) in Criminal Appeal
No.944/2013 are concerned, the judgment and order of
conviction and sentence passed by the trial Court qua the
said appellants/accused stands quashed and set-aside and
they are acquitted of all the offences with which they are
charged. The said appellants/accused be released forthwith,
if not required in any other case.
419 Before parting, we may observe that Anil Bheda, a
prime and a star witness in the said case, a witness to abduction,
i.e. of Ramnarayan and his own, from Sector 9A, Vashi, to
S.Q. Pathan / N.S. Chitnis 767/867
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Bhandup Complex and then to D.N. Nagar Police Station and of
th
his own confinement, was abducted and murdered on 13 March
2011, in the most gruesome manner, within 3 - 4 days, after
th
charge was to be framed in the case i.e. on 8 March 2011
th
before his deposition scheduled on 16 March 2011. Anil Bheda’s
dead body was found burnt and only on the basis of DNA, his
dead body was identified.
420 We may note that the case i.e. Anil Bheda’s abduction
and murder is being investigated by the State CID. Learned Spl.
PP placed on record the report of the State CID. It appears from
the said report that there is absolutely no progress in the said
case. It is a matter of shame, that more than a decade has lapsed,
but there is no progress in the case. It is extremely unfortunate,
that a prime eye-witness in this case, Anil Bheda, lost his life
before his evidence could be recorded and till date, the
perpetrators of Anil Bheda, have not been booked and are
obviously looming large. It is travesty of justice, for the family,
S.Q. Pathan / N.S. Chitnis 768/867
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who have lost a near and dear one. The police whose duty it is, to
uphold the law, and to find the perpetrators of the crime, have
hardly taken any pains to trace the perpetrators. It is important
for police to investigate and to take the case to its logical end,
lest people loose faith in the system. We hope and expect that the
State CID will continue with its investigation and take the same to
its logical end.
V. APPEAL AGAINST ACQUITTAL
421 We have dealt with the circumstances relied upon
by the prosecution i.e. Formation of Squad; Abduction;
Encounter/Custodial Death/Murder; Ballistic Evidence/Forensic
Evidence; CDRs which also pertain to the present
respondent/OA1 and have recorded our findings/observations in
the said appeals against conviction preferred by the
appellants/accused therein. Since the evidence is overlapping,
S.Q. Pathan / N.S. Chitnis 769/867
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we do not wish to again reproduce/repeat the said evidence in
detail in the present appeals.
A. Criminal Appeal No.854/2013 and Criminal Appeal
No.350/2015 preferred by the complainant–
Ramprasad Vishwanath Gupta and the State of
Maharashtra respectively, against the acquittal of
Pradeep Sharma (OA1):
Submissions of Dr. Yug Chaudhry for the Appellant–
Ramprasad Vishwanath Gupta:
422 Dr. Yug Chaudhry appearing for the appellant i.e.
Ramprasad Gupta-the brother of the deceased, submitted that the
aforesaid appeal has been filed as against the acquittal of the
respondent (OA1) in the said case. He submitted that the
findings recorded by the learned Judge whilst acquitting the
respondent (OA1), at the highest, are perverse. He submitted
that the observations made by the learned Judge that there is no
direct or circumstantial evidence against the respondent (OA1) or
S.Q. Pathan / N.S. Chitnis 770/867
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that none of the witnesses have attributed any role to OA1, or
that there is no iota of evidence against OA1 for killing the
deceased, are not borne out from the evidence on record. He
submitted that infact all the circumstances adduced by the
prosecution militates against these findings. He submitted that
the prosecution has duly proved (from the evidence on record)
that the weapon from which the bullet was fired was the service
revolver of the respondent (OA1). In support of his submission,
Dr. Chaudhry relied on the ballistic report to show that the empty
shell allegedly fired by A22 from his weapon, was infact fired
from the respondent’s (OA1) service revolver. He submitted that
the learned Judge accepted that the bullet was fired from OA1’s
weapon, however, has observed that ballistic evidence was
a weak type of evidence and as such, has not relied on the
same for convicting the respondent (OA1). He further submitted
that the learned Judge has also erred in acquitting OA1 despite
there being ample evidence on record to show that OA1 was
heading the squad and that the accused i.e. police personnel and
S.Q. Pathan / N.S. Chitnis 771/867
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private persons were members of his squad. In support of the
said submission, Dr. Chaudhry relied on the evidence of PW20–
Sanjivan Shinge, PW25–Dhiraj Koli, PW32 – Sumant Bhosale,
PW43–Madan More, PW45–Naresh Phalke, PW55–Milind
More, PW63–Arun Awate, PW72-Manohar Desai, PW79-
Prataprao Kharate, PW82–Samir Faniband and PW87-
Ajendrasingh Thakur, to show that there was a squad in existence
and that the respondent (OA1) was heading the said squad. He
submitted that the learned Judge despite there being
overwhelming evidence of the aforesaid witnesses, has chosen to
rely only on the evidence of PW78-Bipin Bihari, Addl. CP, who
had deposed in his cross, that he had not formed any squad under
OA1. He submitted that the evidence of PW78 would show that
formation of squad was illegal and as such, the question of
PW78-Bipin Bihari, admitting having formed any such squad
would have put PW78-Bipin Bihari, in the dock.
S.Q. Pathan / N.S. Chitnis 772/867
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422.1 Dr.Chaudhry further submitted that the evidence of
PW40–Aruna Bheda and the disclosure made by Anil Bheda to
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her on 12 November 2006 would be admissible in law under
Section 6 of the Evidence Act with respect to the disclosure made
by Anil Bheda i.e. his and Ramnarayan’s abduction by the police
and they having been produced before the respondent (OA1) at
D.N. Nagar Police Station.
422.2 Dr. Chaudhry further submitted that the evidence
pertaining to CDR would show that the respondent (OA1) was
using the mobile number of A5, although, OA1 has denied the
same, for obvious reasons. He submitted that A5’s phone was
being used by OA1 and that the CDR would show exchange of
several calls between the appellants/accused and OA1. He
submitted that it is pertinent to note, that OA1’s location during
the calls is at D.N. Nagar Police Station and at early hours of the
morning and late night, at his residence i.e. at Andheri (East),
S.Q. Pathan / N.S. Chitnis 773/867
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whereas, the residence of A5 was at Santacruz. He submitted that
the CDR also shows that OA1 was present at the spot i.e. at Nana
Nani Park at the time of the alleged encounter i.e. at 20:17 hrs;
and that the ballistic expert’s report i.e. that out of three bullets
found in deceased’s body, one bullet was fired from OA1’s
weapon.
422.3 According to Dr. Chaudhry, the prosecution
has duly proved from the evidence on record that the deceased
and Anil Bheda were abducted together; that they were in the
custody of the police and that Ramnarayan was shot on the very
same day, after which, Anil Bheda was again detained and
wrongly confined by the other accused, as revealed from the
evidence. He submitted that the CDRs will also show that A7
called OA1 at 12:39 hrs, soon after the abduction, and the
location of A7 was at Vashi, Sector 9, whereas that of OA1, at
D.N. Nagar Police Station. He further submitted that A5 was a
private person and had no reason to be at D.N. Nagar Police
S.Q. Pathan / N.S. Chitnis 774/867
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Station. He submitted that infact, the evidence on record shows
that A5 would sit outside the office of OA1 and would filter the
people coming to the office of OA1. He submitted that the
evidence on record would also show that PW78–Bipin Bihari did
not know A5 but there were several calls exchanged between
PW78-Bipin Bihari and OA1 (on the mobile registered in A5’s
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name but used by OA1) on the day of the incident i.e. 11
th
November 2006 and on 12 November 2006. According to Dr.
Chaudhry, the CDR also shows that when A5 was at Kolhapur,
OA1 was at D.N. Nagar Police Station.
422.4 Dr. Yug Chaudhry submitted that the learned
Judge despite observing that the ballistic report shows that OA1
had fired at the deceased, held that the said ballistic report was a
weak piece of evidence and as such could not be relied upon. He
submitted that the said finding is perverse. He submitted that the
said observation that the ballistic evidence is a weak type of
evidence, is contrary to law, more particularly, when there was
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ample evidence to show that not only did the ballistic report
show that OA1 fired at Ramnarayan from his revolver, but also
that there was other material and cogent evidence to corroborate
the said evidence. He, thus, submitted that though the said
finding of the ballistic expert recorded by the learned Judge,
shows the complicity of OA1, the learned Judge acquitted him
of all the offences.
422.5 Dr. Chaudhry further submitted that OA1 has not
disputed his signature with respect to return of weapon to
Dharavi Police Station nor has he seriously disputed the issuance
of a gun and handing over of the same. He submitted that the
ballistic expert's evidence i.e. PW86–Gautam Ghadge was
unimpeachable, credible and was not shattered, despite a grueling
cross-examination. He submitted that PW86’s analysis shows that
he had several years of experience in the ballistic field and that
there was nothing to doubt his report, which clearly reveals the
firing of a bullet on the deceased from OA1’s revolver (the said
S.Q. Pathan / N.S. Chitnis 776/867
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bullet was found embedded in the deceased’s body). He
submitted that it is pertinent to note that although A22 is alleged
to have fired the bullet, the ballistic report does not support the
same and instead, the bullet fired by A22 is attributed to OA1’s
revolver and is stated to have been fired from OA1’s revolver. He
submitted that the presence of OA1 at the spot, coupled with the
ballistic report and other evidence, clearly points to his complicity
in the alleged crime.
422.6 Dr. Chaudhry submitted that the movement of the
weapon has been duly proved by the prosecution from its
seizure till the ballistic report.
422.7 Dr. Chaudhry relied on several judgments, with
respect to the scrutiny to be undertaken in an appeal against
acquittal; the importance of ballistic evidence in a case of murder
by firearm; law on res gestae ; that lacunae in 313 was remediable;
that lack of proof of motive in a case of circumstantial evidence is
S.Q. Pathan / N.S. Chitnis 777/867
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not always fatal; that part evidence of a hostile witness to the
extent that it supports the prosecution case can be used; that
when there is no suggestion or cross-examination on a point, the
evidence has to be accepted; and judgments on appreciation of
evidence in custodial death cases.
Submission of Mr. Chavan, Spl. P.P. in Criminal Appeal No.
350/2015 on behalf of the appellant–State (State Appeal preferred
against the acquittal of Pradeep Sharma (OA1) :
423 As far as the State Appeal against acquittal filed by the
State of Maharashtra is concerned, i.e. Criminal Appeal
No.350/2015, Mr. Chavan adopted the submissions advanced by
Dr. Chaudhry. He submitted that the material on record
conclusively points to the guilt of OA1 i.e. of his involvement in
the abduction and killing of the deceased and thereafter, in
keeping Anil Bheda in wrongful confinement. Mr. Chavan,
learned Spl.PP relied on part evidence of PW68–Geetanjali
S.Q. Pathan / N.S. Chitnis 778/867
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Datar, Court Sheristedar (hostile) to show that she had called
OA1 on the number which stood in the name of A5. He
th rd
submitted that on 15 November 2006, when the 3 call was
made by PW68–Geetanjali Datar, to OA1, OA1 was at D.N.
Nagar Police Station, whereas A5 was at Kolhapur. Mr Chavan
also relied on the evidence of PW78–Bipin Bihari. He submitted
that the said witness has admitted that there were to and fro calls
between him and another mobile number i.e. standing in the
name of A5 and used by OA1. It is submitted that although, the
said witness i.e. PW78 has stated that he did not know A5, PW78
does not state that this number was used by OA1, for obvious
reasons. Learned Spl.P.P has relied on the calls exchanged
th
between PW78–Bipin Bihari, Addl.CP and OA1 on 10
November 2006. He submitted that if the phone calls were
received by PW78–Bipin Bihari’s RTPC (Radio Talkie Police
Constable), as stated by PW78, there would not be such long
conversations. Mr. Chavan also relied on 9 calls exchanged
th
between PW78–Bipin Bihari and OA1 on 11 November 2006.
S.Q. Pathan / N.S. Chitnis 779/867
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th
He submitted that the calls on 11 November 2006 show that
OA1 was most of the time at D.N. Nagar Police Station and at
Nana Nani Park, at the time of the encounter i.e. 20:17:51.
th th th
Reliance was also placed on the CDRs of 10 , 12 and 13
November 2006 exchanged between PW78 and OA1.
423.1 Mr. Chavan also relied on the part evidence of
PW104–Anant Patil, who turned hostile. He submitted that the
evidence of PW104 – Anant Patil would show that he knew who
Anil Bheda was, as also OA1. He submitted that although the
said witness has denied his 161 and 164 statements, in his
examination-in-chief, the said witness has accepted that his 164
statement was correctly recorded by the Magistrate.
423.2 Mr. Chavan submitted that it is the prosecution case,
that PW104 mediated on behalf of Anil Bheda with OA1, as a
result of which, Anil Bheda’s life was saved and that the same is
evident from the CDR, which shows calls exchanged between this
S.Q. Pathan / N.S. Chitnis 780/867
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witness and OA1. He submitted that the timings and the location
of OA1 and PW104 at D.N. Nagar Police Station at 15:15 hrs are
relevant. He submitted that the evidence on record would show
that Aruna Bheda reached Vashi Police Station, at around 17:00
hrs, after which Aruna Bheda withdrew her complaint and at
which time, Anil Bheda disclosed to Aruna Bheda that his life
was saved because of PW104–Anant Patil, as he had mediated.
He submitted that post the withdrawal of the complaint, there is
another call by PW104 to OA1 at 18:01 hrs (when OA1’s
location is at D.N. Nagar Police Station).
Thus, it is evident from the evidence of PW78 and
the evidence of the other witnesses i.e. PW104, PW68 and the
CDRs of other co-accused that OA1 was using mobile no.
XXXXXX2987 standing in the name of A5.
423.3 Mr. Chavan also relied on the evidence of PW108 –
Vinay Ghorpade, who heard the conversation exchanged between
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th
Anil Bheda and an unknown caller on 12 March 2011, with
respect to threats extended to him. The said witness has
reproduced the conversation heard by him, which was recorded.
The said CD is produced as Article 67. He submitted that the
said evidence of PW108–Vinay Ghorpade, is duly corroborated
by PW109-Sunil Gaonkar, with respect to the conversation heard
by them on the loudspeaker of Anil Bheda’s phone i.e. the
conversation between Anil Bheda and the unknown person, in
which the unknown person told Anil Bheda to leave the city for
15-20 days. PW108 has reproduced the conversation heard by
him and PW109 and has stated that Anil Bheda was given the
mobile number of Advocate Sultan by the unknown caller and
was asked to meet him. Mr. Chavan submitted that it is pertinent
to note that Advocate Sultan was appearing for OA1.
423.4 Mr. Chavan submitted that the charge in the said case
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was framed on 8 March 2011 and Anil Bheda was summoned to
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depose in the said case on 16 March 2011 and that prior to
S.Q. Pathan / N.S. Chitnis 782/867
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recording of his evidence, Anil Bheda was done to death, in the
th
most gruesome manner on 13 March 2011. He submitted that
the body of Anil Bheda was found burnt, as a result of which he
could not be identified and that Anil Bheda was identified only
on the basis of the DNA Report.
423.5 Mr. Chavan, learned Spl. PP submits that the
circumstances on record, clearly point to the complicity of OA1
in the crime. According to Mr. Chavan, the findings recorded by
the trial Court were perverse, unsustainable and contrary to the
evidence on record and as such, the judgment and order, to the
extent that it acquits OA1 from all the offences be quashed and
set aside.
Submissions of Mr. Ponda, learned Senior Counsel for the
Respondent-Pradeep Sharma (OA1) in Criminal Appeal
No.854/2013 and Criminal Appeal No.350/2015:
424 Mr. Ponda, learned senior counsel for the respondent-
S.Q. Pathan / N.S. Chitnis 783/867
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Pradeep Sharma (OA1) opposed the appeal filed by the State as
well as by the complainant. He submitted that the scope of
interference in an appeal against acquittal is well settled by the
Apex Court and as such, bearing in mind the scope and the
findings recorded by the trial Judge, no interference was
warranted in the judgment and order acquitting the respondent of
all the offences with which he was charged. Mr. Ponda
submitted that as far as evidence of abduction is concerned, not a
single witness had witnessed the actual act of abduction and that
the witnesses have deposed on the basis of what was disclosed by
one Nilesh to Dheeraj (PW38). He submitted that the evidence
of Nilesh being hearsay and Nilesh not having been examined, the
said evidence becomes hearsay evidence and as such, inadmissible.
Mr. Ponda submitted that the telegrams relied upon by the
prosecution at the highest, can be used for corroboration and
cannot be treated as substantive piece of evidence, in the absence
of any witness stating that the deceased Ramnarayan and Anil
Bheda were abducted by some policemen. He submitted that
S.Q. Pathan / N.S. Chitnis 784/867
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since abduction has not been proved by the prosecution, the
telegrams cannot be relied upon for corroboration. It is
submitted that even the principle of res gestae would not come
into play in the peculiar facts of this case. Mr. Ponda further
submitted that disclosure made by Anil Bheda and PW40-Aruna
th
Bheda on 12 November 2006 with respect to abduction would
not come within the purview of the principle of res gestae. It is
submitted that what was disclosed by Anil Bheda to Aruna Bheda
(PW40) was objected to by the learned advocate for the
appellants/accused at the time of recording PW40’s evidence,
however, despite the same, the learned Judge recorded the said
evidence, subject to objection, observing that the objection was
left open for consideration at the time of final arguments. Mr.
Ponda submitted that as far as the said objection is concerned,
admittedly Anil Bheda did not die during the alleged incident
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alongwith the deceased and was alive on 12 November 2006
and for a few years thereafter and therefore, obviously what
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transpired on 11 November 2006 cannot be connected with his
S.Q. Pathan / N.S. Chitnis 785/867
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death and consequently, Section 32 of the Evidence Act will not
be attracted. He submitted that even the principle of res gestae
under Section 6 of the Evidence Act would not apply, having
regard to the fact, that the principle warranting the application of
the same, will not be attracted in the facts.
424.1 Mr. Ponda submitted that as far as CDR is concerned,
although it is alleged by the prosecution that Mobile No.
XXXXXX2987 standing in the name of A5, was being used by
the respondent (OA1), the prosecution has failed to prove the
same. Learned senior counsel assailed the evidence of PW62-
Rakeshchandra Prajapati, a Nodal Officer working with BPL
Mobile Communications Ltd. (also known as 'Loop Mobile
(India) Ltd.’), who has deposed with respect to the tower location
of the mobile allegedly used by OA1, although standing in the
name of A5. It is submitted that although, PW62’s evidence
th
shows that on 11 November 2006, the aforesaid number was
used in the area i.e. Tower Nos. 17691 and 17692, that by itself,
S.Q. Pathan / N.S. Chitnis 786/867
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is not sufficient to show the complicity of the respondent (OA1).
He submitted that PW68-Geetanjali Datar, who was examined by
the prosecution to show that the aforesaid mobile number was
that of the respondent, has turned hostile and as such, her
evidence is not of any significance. He further submitted that
there is nothing to show that D.N. Nagar Police Station is in the
area of Esic Nagar and that there is nothing to show the exact
area covered by the Cell I.D having address of Esic Nagar i.e.
11891. He submitted that although four calls, out of which,
three calls were made by PW78-Bipin Bihari and one call from
the aforesaid number to Bipin Bihari, the prosecution has not led
any evidence to show that OA1 was at the area/location at the
given time, as the prosecution had failed to prove that the
th
aforesaid mobile was being used by the respondent (OA1) on 11
November 2006. Mr. Ponda also assailed the evidence of
PW104-Anant Patil (hostile) and PW105-Sanjay Vanmane and as
such, submitted that even the said evidence of the aforesaid two
witnesses does not reveal that the respondent was using the
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aforesaid mobile at the relevant time.
424.2 Mr. Ponda further submitted that as far as the Ballistic
Expert’s evidence is concerned, the said evidence suffers from
several infirmities. He submits that PW86-Gautam Ghadge
cannot be termed as a Ballistic Expert, in terms of Section 45 of
the Evidence Act, considering what has been disclosed by the said
witness in his cross-examination. He submitted that there are
several discrepancies that have come on record in the cross-
examination of this expert witness, which discrepancies have
remained unexplained and as such, implicit reliance cannot be
placed on his evidence. Mr. Ponda further submitted that as
regards the alleged firing of a bullet from the respondent’s
weapon is concerned i.e. Exh. 18-B (fired bullet), it is the
prosecution case that it was fired from the revolver issued to the
respondent (OA1) and in order to prove the same, the
prosecution relied on Exh. 9 (Test Bullets), which were
admittedly fired from respondent’s revolver (Exh. 8) and on
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photograph, in juxtaposition showing Exh. 9 (test bullets) and
Exh. 18-B (fired bullet). He submitted that the cross-examination
of PW86 would reveal several discrepancies with respect to the
striations, grooves, that had come on record. According to Mr.
Ponda, having regard to the discrepancies in the evidence of
PW86, it is abundantly clear that the striations, which were found
on Exh. 8 (test) did not tally with the striations found on Exh.
18-B (bullet) and if the same is borne in mind, the only
conclusion that can be arrived at, is that Exh. 18-B (bullet) was
not fired from revolver (Exh. 8). He submitted that the
prosecution has not explained why only respondent’s weapon was
sent to the Ballistic Expert for examination and why weapons of
A3 and A7 were not taken charge of and sent to the Ballistic
Expert. He submitted that the weapon of A7 was not sent for
ballistic examination since he was not a member of the raiding
party and hence, by that logic, the same would hold good even
vis-a-vis respondent (OA1), since even in the FIR lodged by A9,
the respondent (OA1) is not stated to be a member of the said
S.Q. Pathan / N.S. Chitnis 789/867
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raiding party.
424.3 As far as formation of squad is concerned, Mr. Ponda
submitted that the prosecution has not brought on record cogent
evidence to show that A2, A3 and A7 were directed to work
under a squad and that the acts of A2, A3 and A7 can be
attributed to the respondent (OA1). He submitted that the
formation of squad at the instance of PW78-Bipin Bihari, under
OA1 has been categorically denied by the said witness. He
submitted that although there are some documents produced by
the prosecution to show that some of the accused were relieved
from their respective police stations and were sent on deputation
to D.N. Nagar Police Station, that by itself, would not show that
they were members of any such squad. He submitted that there is
no document produced by the prosecution to show that there was
a squad in existence. He submitted that infact, the evidence of
PW78-Bipin Bihari, would reveal that squads were banned by the
order of CP and as such, prosecution had failed to prove the
S.Q. Pathan / N.S. Chitnis 790/867
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formation of squad under the respondent (OA1).
424.4 Mr. Ponda submitted that as far as the allegation by
the prosecution that the respondent had called Mr. Anant Patil
(PW104) to the police station, the same has not been proved
beyond reasonable doubt, inasmuch as, the respondent was on
th
leave on 12 November 2006 and as such, was not present in
D.N. Nagar Police Station. He submitted that the evidence of
PW104-Anant Patil, wherein he has stated that when he visited
D.N. Nagar Police Station, he was informed that OA1 was on a
weekly-off, will have to be accepted. He submitted that having
regard to the said evidence, the prosecution, in absence of any
other evidence, cannot rely on the CDR of the respondent (OA1)
and PW104-Anant Patil to show their locations at D.N. Nagar
th
Police Station on 12 November 2006. According to Mr. Ponda,
the respondent (OA1) has been falsely implicated at the behest of
some senior Police Officers.
S.Q. Pathan / N.S. Chitnis 791/867
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424.5 Mr. Ponda, thus submitted that no ground is made
out by the State and the complainant, warranting interference in
the judgment and order, insofar as, it acquits the respondent
(OA1).
B. Scope of Acquittal
425 We are conscious of the fact that the aforesaid appeals
have been filed by the State of Maharashtra and by the
complainant (brother of the deceased), and the scope for
interference by the appellate Court when an accused has been
acquitted by the trial Court. Thus, before we proceed to consider
the submissions advanced by the learned counsel for the
respective parties and the evidence on record adduced by the
prosecution, it would be apposite to consider the law as to when
an order of acquittal can be interfered with. Of course, the law
with regard to the scope of interference by the Appellate Court in
an appeal against acquittal, is no longer res integra.
S.Q. Pathan / N.S. Chitnis 792/867
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44
426 In Sheo Swarup v. King Emperor , one of the earliest
case dealing with the scope of the Appellate Court against an
order of acquittal, the Privy Council held as under on page 404:
“Sections 417, 418 and 423 of the Code give to the High
Court full power to review at large the evidence upon which
the order of acquittal was founded, and to reach the
conclusion that upon that evidence the order of acquittal
should be reversed. No limitation should be placed upon that
power, unless it be found expressly stated in the Code. But in
exercising the power conferred by the Code and before
reaching its conclusions upon fact, the High Court should and
will always give proper weight and consideration to such
matters as (1) the views of the trial Judge as to the credibility
of the witnesses; (2) the presumption of innocence in favour
of the accused, a presumption certainly not weakened by the
fact that he has been acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4) the slowness of an
appellate Court in disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the witnesses. To state
this however is only to say that the High Court in its conduct
of the appeal should and will act in accordance with rules and
principles well known and recognized in the administration of
justice.”
427 The Supreme Court in M.G.Agarwal v. State of
45
Maharashtra , in paras 16 and 17 has observed as under:
“16. Section 423(1) prescribes the powers of the appellate
court in disposing of appeals preferred before it and clauses (a)
44 1934 SCC OnLine PC 42
45 AIR 1963 SC 200
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and (b) deal with appeals against acquittals and appeals against
convictions respectively. There is no doubt that the power
conferred by clause (a) which deals with an appeal against an
order of acquittal is as wide as the power conferred by clause
(b) which deals with an appeal against an order of conviction,
and so, it is obvious that the High Court's powers in dealing
with criminal appeals are equally wide whether the appeal in
question is one against acquittal or against conviction. That is
one aspect of the question. The other aspect of the question
centres round the approach which the High Court adopts in
dealing with appeals against orders of acquittal. In dealing
with such appeals, the High Court naturally bears in mind the
presumption of innocence in favour of an accused person and
cannot lose sight of the fact that the said presumption is
strengthened by the order of acquittal passed in his favour by
the trial court and so, the fact that the accused person is
entitled for the benefit of a reasonable doubts will always be
present in the mind of the High Court when its deals with the
merits of the case. As an appellate court the High Court is
generally slow in disturbing the finding of fact recorded by the
trial court particularly when the said finding is based on an
appreciation of oral evidence because the trial court has the
advantage of watching the demeanour of the witnesses who
have given evidence. Thus, though the powers of the High
Court in dealing with an appeal against acquittal are as wide
as those which it has in dealing with an appeal against
conviction, in dealing with the former class of appeals, its
approach is governed by the overriding consideration flowing
from the presumption of innocence. Sometimes, the width of
the power is emphasised, while on other occasions, the
necessity to adopt a cautious approach in dealing with appeals
against acquittals is emphasised, and the emphasis is expressed
in different words or phrases used from time to time. But the
true legal position is that however circumspect and cautious
the approach of the High Court may be in dealing with
appeals against acquittals, it is undoubtedly entitled to reach
its own conclusions upon the evidence adduced by the
prosecution in respect of the guilt or innocence of the accused.
This position has been clarified by the Privy Council in Sheo
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Swarup v. King Emperor 61 IA 398 and Nur Mohammad v.
Emperor AIR 1945 PC 151.
17. In some of the earlier decisions of this Court, however, in
emphasising the importance of adopting a cautious approach
in dealing with appeals against acquittals, it was observed that
the presumption of innocence is reinforced by the order of
acquittal and so, “the findings of the trial court which had the
advantage of seeing the witnesses and hearing their evidence
can be reversed only for very substantial and compelling
reasons” : vide Surajpal Singh v. State 1952 SCR 193 at p.
201. Similarly in Ajmer Singh v. State Of Punjab 1953 SCR
418 it was observed that the interference of the High Court in
an appeal against the order of acquittal would be justified only
if there are “very substantial and compelling reasons to do so”.
In some other decisions, it has been stated that an order of
acquittal can be reversed only for “good and sufficiently
cogent reasons” or for “strong reasons”. In appreciating the
effect of these observations, it must be remembered that these
observations were not intended to lay down a rigid or
inflexible rule which should govern the decision of the High
Court in appeals against acquittals. They were not intended,
and should not be read to have intended to introduce an
additional condition in clause (a) of Section 423(1) of the
Code. All that the said observations are intended to emphasise
is that the approach of the High Court in dealing with an
appeal against acquittal ought to be cautious because as Lord
Russell observed in the case of Sheo Swarup, the presumption
of innocence in favour of the accused “is not certainly
weakened by the fact that he has been acquitted at his trial”.
Therefore, the test suggested by the expression “substantial
and compelling reasons” should not be construed as a formula
which has to be rigidly applied in every case. That is the effect
of the recent decisions of this Court, for instance, in Sanwat
Singh v. State of Rajasthan AIR 1961 SC 715 and Harbans
Singh v. State of Punjab AIR 1962 SC 439 and so, it is not
necessary that before reversing a judgment of acquittal, the
High Court must necessarily characterise the findings
recorded therein as perverse. Therefore, the question which
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we have to ask ourselves in the present appeals is whether on
the material produced by the prosecution, the High Court was
justified in reaching the conclusion that the prosecution case
against the appellants had been proved beyond a reasonable
doubt, and that the contrary view taken by the trial court was
erroneous. In answering this question, we would, no doubt,
consider the salient and broad features of the evidence in
order to appreciate the grievance made by the appellants
against the conclusions of the High Court. But under Article
136 we would ordinarily be reluctant to interfere with the
findings of fact recorded by the High Court particularly where
the said findings are based on appreciation of oral evidence.”
428 In Chandrappa v. State of Karnataka45, the Apex
Court reiterated the legal position as under:
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate
court while dealing with an appeal against an order of
acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, “substantial and
compelling reasons”, “good and sufficient grounds”,
“very strong circumstances”, “distorted conclusions”,
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“glaring mistakes”, etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the
reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the
evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that
in case of acquittal, there is double presumption in favour
of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial
court.”
46
429 In Ghurey Lal v. State of U.P. , the Apex Court after
reviewing the previous decisions, laid down the correct approach
that an Appellate Court should adopt in dealing with such cases.
Para 70 of the said judgment is as under:
46 (2008) 10 SCC 450
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“70. In light of the above, the High Court and other
appellate courts should follow the well-settled principles
crystallised by number of judgments if it is going to overrule
or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb
the trial court's acquittal if it has “very substantial and
compelling reasons” for doing so.
A number of instances arise in which the appellate court
would have “very substantial and compelling reasons” to
discard the trial court's decision. “Very substantial and
compelling reasons” exist when:
(i) The trial court's conclusion with regard to the facts is
palpably wrong;
(ii) The trial court's decision was based on an erroneous
view of law;
(iii) The trial court's judgment is likely to result in “grave
miscarriage of justice”;
(iv) The entire approach of the trial court in dealing with
the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and
unreasonable;
(vi) The trial court has ignored the evidence or misread
the material evidence or has ignored material documents
like dying declarations/report of the ballistic expert, etc.
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(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and
consideration to the findings of the trial court.
3. If two reasonable views can be reached—one that leads to
acquittal, the other to conviction—the High
Courts/appellate courts must rule in favour of the accused.”
(emphasis supplied)
47
430 In State of U.P. v. Banne , the Supreme Court gave
certain illustrative circumstances in which the Court would be
justified in interfering with a judgment of acquittal by the High
Court. The circumstances set out in para 28 are reproduced
herein-under:
“28. Following are some of the circumstances in which
perhaps this Court would be justified in interfering with
the judgment of the High Court, but these are illustrative
not exhaustive:
(i) The High Court's decision is based on totally
erroneous view of law by ignoring the settled legal
position;
(ii) The High Court's conclusions are contrary to
evidence and documents on record;
47 (2009) 4 SCC 271
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(iii) The entire approach of the High Court in dealing
with the evidence was patently illegal leading to grave
miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust
and unreasonable based on erroneous law and facts on
the record of the case;
(v) This Court must always give proper weight and
consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in
interfering with a case when both the Sessions Court
and the High Court have recorded an order of
acquittal.”
(emphasis supplied)
431 Similarly in Sidhartha Vashisht alias Manu Sharma v.
State (NCT of Delhi)46, the Apex Court in para 27 has laid down
the principles to be borne in mind by the Appellate Court while
dealing with appeals, in particular, against the orders of acquittal.
Para 27 reads thus:
“27. The following principles have to be kept in mind by
the appellate court while dealing with appeals, particularly
against an order of acquittal:
(i) There is no limitation on the part of the appellate
court to review the evidence upon which the order of
acquittal is founded.
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(iii) The appellate court can also review the trial court's
conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State,
it is the duty of the appellate court to marshal the entire
evidence on record and by giving cogent and adequate
reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered with only
when there are “compelling and substantial reasons” for
doing so. If the order is “clearly unreasonable”, it is a
compelling reason for interference.
(vi) While sitting in judgment over an acquittal the
appellate court is first required to seek an answer to the
question whether findings of the trial court are palpably
wrong, manifestly erroneous or demonstrably
unsustainable. If the appellate court answers the above
question in the negative the order of acquittal is not to be
disturbed. Conversely, if the appellate court holds, for
reasons to be recorded, that the order of acquittal cannot
at all be sustained in view of any of the above infirmities,
it can reappraise the evidence to arrive at its own
conclusion.
(vii) When the trial court has ignored the evidence or
misread the material evidence or has ignored material
documents like dying declaration/report of ballistic
experts, etc. the appellate court is competent to reverse
the decision of the trial court depending on the materials
placed.” (emphasis supplied)
S.Q. Pathan / N.S. Chitnis 801/867
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431.1 In para 303(1), the Apex Court has held that the
Appellate Court has all necessary powers to re-evaluate the
evidence laid before the trial Court as well as the conclusions
reached and that it has a duty to specify the compelling and
substantial reasons in case which reverses the order of acquittal
passed by the trial Court. The reasons or reversal have to be
cogent and adequate.
48
432 Similarly, in Babu v. State of Kerala , the Apex Court
in para 20 and 21 has held as under:
“20. The findings of fact recorded by a court can be held to
be perverse if the findings have been arrived at by ignoring
or excluding relevant material or by taking into
consideration irrelevant/inadmissible material. The finding
may also be said to be perverse if it is “against the weight of
evidence”, or if the finding so outrageously defies logic as to
suffer from the vice of irrationality. (Vide Rajinder Kumar
Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC
(L&S) 131 : AIR 1984 SC 1805] , Excise and Taxation
Officer-cum-Assessing Authority v. Gopi Nath & Sons
48 (2010) 9 Supreme Court Cases 189
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[1992 Supp (2) SCC 312] , Triveni Rubber & Plastics v.
CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] , Gaya
Din v. Hanuman Prasad [(2001) 1 SCC 501] , Aruvelu
[(2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini
Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 :
(2010) 1 SCC (Cri) 372] )
21. In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC
10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] this Court
held that if a decision is arrived at on the basis of no
evidence or thoroughly unreliable evidence and no
reasonable person would act upon it, the order would be
perverse. But if there is some evidence on record which is
acceptable and which could be relied upon, the conclusions
would not be treated as perverse and the findings would not
be interfered with.”
433 Thus, the law on the issue i.e. scope for interference
in an appeal against acquittal can very broadly be summarized as
follows; that in exceptional cases where there are compelling and
substantial reasons; and where the judgment under appeal is
found to be perverse, clearly unreasonable, manifestly erroneous,
contrary to the evidence on record, or contrary to law, and the
findings have been arrived at, by ignoring or excluding relevant
material or by taking into consideration irrelevant/inadmissible
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material or is `against the weight of evidence’ or if the finding so
outrageously defies logic as to suffer from the vice of irrationality,
the Appellate Court can interfere with the order of acquittal.
However, whilst doing so, the Court has to bear in mind the
presumption of innocence of the accused and further that the trial
Court’s acquittal bolsters the presumption of his innocence; that
interference in a routine manner, only because another view is
possible should be avoided.
434 Infact, while dealing with the judgment of acquittal,
the Appellate Court has to consider the entire evidence on record,
so as to arrive at a finding as to whether the view of the trial
Court was perverse or otherwise unsustainable, warranting
interference.
C. Analysis of the Evidence on record
435 Considering that the respondent–Pradeep Sharma
(OA1) has been acquitted of the offences (Refer Para 3 of this
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judgment), we have perused the reasons of the learned trial Judge
and the grounds on which he was acquitted. The said grounds
are:
(i) that there is not even an iota of evidence against OA1 for
killing the deceased (para 1504 of the trial Court Judgment);
(ii) that there is no direct or circumstantial evidence against
OA1 (para 1478 of the trial Court Judgment);
(iii) that OA1 cannot be implicated only on the basis of ballistic
evidence, which is a weak piece of evidence (para 1478 of the
trial Court Judgment);
(iv) that none of the witnesses have attributed any role to OA1
(para 1477 of the trial Court Judgment); and;
(v) that the statements that OA1 was head of the squad have no
force (para 1477 of the trial Court Judgment).
436 According to Mr. Chavan, learned Spl. P.P and Dr.
Yug Chaudhry, the findings recorded by the learned Judge are
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one line findings and that the same are contrary to the findings
recorded by him, whilst convicting the other appellants/accused.
437 It is pertinent to note that although the learned Judge
has recorded a finding, that A7 and others had abducted
Ramnarayan and that Ramnarayan and Anil Bheda were abducted
together and that Anil Bheda was seen on the next day in the
custody of the police officers (who were members of OA1’s
squad); has held that no squad existed under OA1, after placing
reliance only on the sole testimony of PW78-Bipin Bihari, Addl.
CP, West Region, Mumbai. It is also pertinent to note that the
trial Court rejected the genuine encounter theory propagated by
the accused and recorded a finding that there is ample evidence of
abduction of Ramnarayan and Anil Bheda, that they were taken
to D.N. Nagar Police Station and from there, Ramnarayan was
taken to Nana Nani Park, where allegedly an encounter took
place. The learned Judge also relied on the CDR evidence to
convict all the other accused, however, failed to consider the
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evidence on record qua OA1. Learned Spl. PP and Dr. Chaudhry
submitted that the perversity in the finding is also on the
erroneous finding of law i.e. the ballistic report was a weak type
of evidence. According to Dr. Chaudhry and Mr. Chavan, having
regard to the evidence on record, no reasonable person could
have reached such a conclusion, unsubstantiated by findings of
fact, as arrived at by the trial Court, whilst acquitting OA1.
438 We have already noted the evidence as has come on
record through the witnesses and have dealt with it, in great
detail, whilst considering the evidence qua the accused herein-
above and as such, do not intend to repeat the said evidence.
439 As far as OA1 being the head of the squad of police
personnel comprising A2, A3, A7, A15, A13 and A16 and others
is concerned, we have already dealt with the said evidence in
paras 33 to 61 herein-above, wherein we have discussed the
entire evidence adduced by the prosecution to show the existence
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of a squad under OA1 and of deputation of A7, A15, A2 and A3
to D.N. Nagar Police Station; and office order stating A13 is
working under OA1 and A9. It is also brought on record, that
A11, A17 and A19 were sent from Versova Police Station to D.N.
th
Nagar Police Station, on 11 November 2006 for confidential
work. Despite there being overwhelming evidence of witnesses,
the learned Judge has rejected that OA1 was the head of the
squad, only because PW78-Bipin Bihari, Addl. C.P, a lone witness,
denied the same in his cross-examination, as according to PW78,
formation of squad was illegal and was banned by the then CP.
No doubt, formation of squad was illegal, however, the fact
remains and as deposed to by several witnesses, there was a squad
in existence, albeit illegal and that several officers/police
personnel were deputed to work under the said squad, headed by
OA1. We have, in great detail, discussed how some of the police
personnel were sent on deputation/otherwise, for working in the
squad of OA1. Infact, the evidence of some of the witnesses has
gone unchallenged with respect to formation of squad and OA1
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being the head of the squad. Thus, for the reasons set out in
detail herein-above, we find that the prosecution has, by cogent
and legal evidence of witnesses proved the existence of a squad
and as such, do not wish to repeat the same. Thus, the finding
recorded by the trial Court, relying solely on the evidence of
PW78, as deposed to, in the cross-examination, is perverse. The
learned Judge has not considered the overwhelming evidence of
all other witnesses vis-a-vis existence of a squad under OA1.
440 We have also recorded a finding that Anil Bheda and
th
Ramnarayan were abducted together on 11 November 2006 by
some of the appellants/accused at 12:35–12:38 hrs. We have
discussed in detail, the evidence with respect to abduction, which
stands duly corroborated by sending of fax messages and
telegrams to various authorities. The CDRs of the
appellants/accused, has also been relied upon by the prosecution,
to corroborate the same.
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441 It is the prosecution case that OA1 was using mobile
No. XXXXXX2987, though registered in the name of A5. It is
not in dispute that the SDR (Exh. 533) shows that the said mobile
number was registered in the name of A5. A5 is a civilian, who
according to several of the prosecution witnesses, would sit
outside the office of OA1 and was working for OA1. The same
has been deposed to by PW43 and PW55. The location of the
said CDR (standing in the name of A5 and used by OA1) is shown
at D.N. Nagar Police Station, when the call was made by A7 to
OA1 at 12:39 hrs. (Exh. 543). The other evidence which will
show that the said number was used by OA1, is the evidence of
PW78-Bipin Bihari, Addl. C.P, West Region. The said witness has
categorically deposed that he did not know A5 nor had A5 ever
spoken to him, however, the CDR of PW78 would show that
there were several calls on the mobile number standing in A5’s
name, but used by OA1. The relevant CDR with respect to the
same is at Exh. 543.
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442 In this context, it would be apposite to place on
record the number of calls exchanged between PW78-Addl. CP
Bipin Bihari and OA1 (on mobile number standing in the name of
A5).
th
10 November 2006 – 22:52 hrs (171 seconds call between
PW78 and OA1)
th
11 November 2006 – 9 calls between PW78 and OA1
(6 calls made by PW78 to OA1 and
3 calls made by OA1 to PW78)
st
1 call - at 12:56 (PW78 to OA1) – 19 seconds – location of OA1
at D.N. Nagar (abduction had taken place at around 12:35-call
between A7 to OA1 at 12:39.
nd
2 call - 14:34 hrs (PW78 to OA1) - 6 seconds – location of
OA1 at D.N. Nagar.
rd
3 call - 15:08:05 hrs (OA1 to PW78) - 21 seconds – location of
OA1 at D.N. Nagar.
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th
4 call - 16:27 hrs (OA1 to PW78) - 10 seconds – location of
OA1 at D.N. Nagar.
th
5 call - 19:04 hrs (PW78 to OA1) - 104 seconds – location of
OA1 at Juhu Circle.
th
6 call - 19:33 hrs (PW78 to OA1) - 13 seconds – location of
OA1 at D.N. Nagar.
th
7 call - 20:17 hrs (OA1 to PW78) - 11 seconds – location of
OA1 at Nana Nani Park.
th
8 call - 21:12 hrs (PW78 to OA1) – 1 second – location of OA1
at Seven Bungalows, Near Nana Nani Park.
th
9 call - 21:14 hrs (PW78 to OA1) - 134 seconds – location of
OA1 at Andheri (West).
th
12 November 2006 – 13:25 hrs (PW78 to OA1) - 31 seconds –
location of OA1 at D.N. Nagar (According to OA1 it was his
weekly off).
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th
13 November 2006 – 13:26 hrs (OA1 to PW78) - 241 seconds.
13:30 hrs (OA1 to PW78) – 50 seconds
443 The entire CDR of mobile number XXXXXX2987
used by OA1 (standing in the name of A5) shows the mobile
th
location on 11 November 2006 at 8:36 hrs at J.B. Nagar, where
OA1 resides and thereafter as stated aforesaid. It is also
pertinent to note that there are numerous calls exchanged
th
between PW78 and OA1 on 11 November 2006. Admittedly, as
is evident from the evidence of PW78, he did not know A5.
PW78 when confronted with the CDRs has denied of knowing
whose number it was i.e. mobile number - XXXXXX2987.
Obviously, the evidence of PW78 clearly shows that he was trying
to feign ignorance to protect OA1 or else he would have been in
trouble.
444 It is also pertinent to note that PW68-Geetanjali
Datar, Court Sheristedar, was examined by the prosecution to
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show that she was given a number by a constable and that she had
spoken to OA1 on the said number, which is XXXXXX2987.
Although PW68 has turned hostile, part of her evidence can be
relied upon, to the extent, that she admits knowing OA1, as he
was an I.O and whose case was in her Court in the month of
October/November 2006; that in November 2006, one constable
had given her mobile number of OA1; that she called OA1 on
th th
11 November 2006 and on 15 November 2006 and had
spoken to the person using the said number on three occasions. It
is not the case of the defence, that PW68 knew A5 and had
th
spoken to him. It may be noted that on 15 November 2006, at
around 21:24 hrs, OA1 spoke with PW68-Geetanjali Datar for 62
seconds, as is evident from the CDRs. This is the date when A5
was at Kolhapur i.e. when he had taken Anil Bheda, PW40 and
their son to Kolhapur. The said evidence of PW68 to that extent,
of calls made by her to OA1, is duly corroborated by the CDR,
which is at Exh. 543. It is also pertinent to note from the CDRs
produced and proved by the prosecution, that there are 175 to
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180 calls from J.B. Nagar area, late in the night and early in the
morning, where OA1 was residing and not a single call from
Santacruz, either late night or early morning, where A5 was
residing. Thus, we find from the evidence on record that OA1
was using mobile No. XXXXXX2987, though the same was
standing in A5’s name. We have also discussed the circumstance
of `CDR’ whilst dealing with the said circumstance, in great detail
and as such, do not wish to repeat the same.
445 It is also pertinent to note that there are calls between
th th
A5 and OA1 (standing in A5’s name) between 10 to 12
November 2006, which is highly improbable. The following chart
clearly establishes that both the mobile numbers i.e. Mobile Nos.
XXXXXX1156 and XXXXXX2987 were registered in A5’s
name, however both were used by A5 and OA1 respectively :
| Sr. | XXXXXX1156 used<br>by A5 (in his own<br>name) | XXXXXX2987 used by<br>OA1 (in A5’s name) |
|---|---|---|
| 1. | On 10.11.2006 from<br>19.12 to 21.43 | On same day and during<br>same time OA1 is initially |
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| location of A5 is at<br>Esic Nagar i.e. D.N.<br>Nagar | at Vileparle and then at<br>Marine Lines. | |
|---|---|---|
| 2. | On 11.11.2006 at<br>16.48 outgoing call to<br>XXXXXX2987 | Incoming call from<br>XXXXXX1156. |
| 3. | On 13.11.2006 at<br>10.47 A5 is at<br>Santacruz. | At this time OA1 is at<br>Vileparle and before that at<br>J.B. Nagar. |
| 4. | From 14.11.2006 to<br>18.11.2006, A5 is at<br>Kolhapur with PW40<br>Anil and Parth<br>(As is evident from<br>the evidence of<br>PW40-Aruna Bheda) | During this time OA1 is at<br>Mumbai and on<br>15.11.2006 at 21.24<br>talked with PW68 for 62<br>seconds and also with<br>other witnesses. |
| 5. | During 26.11.2006 to<br>30.11.2006, A5 is in<br>Mumbai and there are<br>calls on his other<br>mobile i.e.<br>XXXXXX5118 from<br>the PCO of PW40’s<br>father. | During this time, OA1 is at<br>Delhi from where he had<br>contacted other accused<br>and witnesses in this case. |
| 6. | Exh.556 shows Cell<br>ID 16961 near to<br>house of A5. Cell ID<br>17551 also shows<br>area of Santacruz as<br>per Exh.548. This<br>phone shows 4 calls<br>from cell ID 17551<br>on 10.11.2006,<br>11.11.2006 and<br>13.11.2006. | This phone does not show<br>a single call from any of<br>these two cell IDs or any<br>call from Santacruz area<br>i.e. near the residence of<br>A5. |
| 7. | This phone does not<br>show a single call<br>from J.B. Nagar area | This phone shows about<br>175 to 180 calls from JB<br>Nagar area i.e. near the |
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| residence of OA1 (Cell IDs<br>10871, 10873, 13101,<br>13102, 13104, 13622 &<br>13623 Exh.548 &<br>Exh.556). | ||
|---|---|---|
| 8. | PWs-68,75,78,104<br>and 105 who did not<br>know him had no talk<br>with him on his two<br>mobiles at any time | Regular calls between all<br>these witnesses with OA1. |
| 9. | Has no reason to talk<br>to PW78, as PW78<br>did not know him. | OA1 called PW78-Bipin<br>Bihari at 20.17 hrs. from<br>Nana Nani Park. OA1 was<br>a P.I working under him<br>(Infact, the squad was<br>formed by PW78 under<br>OA1). |
| 10 | Has no reason to call<br>alleged eye witness<br>Ramrajpal Singh | To show encounter as<br>genuine, OA1 had every<br>reason to introduce<br>Ramrajpal Singh as an eye<br>witness. |
| 11. | PW104 had no talks<br>on this phone, nor<br>does PW104 know<br>A5. | PW104 admitted talking<br>on this number with<br>someone known to him.<br>He also admitted knowing<br>OA1. |
| 12. | Regular contact<br>between A5 and other<br>accused from this<br>number. | OA1 was also in regular<br>touch with other accused<br>from this number. |
th
446 It is also pertinent to note that from 14 November
th
2006 to 18 November 2006, A5 was at Kolhapur with PW40-
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Aruna Bheda, Anil Bheda and Parth and that during this period,
this number i.e. XXXXXX2987 used by OA1 was operational in
Mumbai and there were a number of calls from J.B. Nagar and
D.N. Nagar Police Station area. Aruna Bheda has identified A5 as
being the person, who accompanied her, Anil Bheda and their son
to Kolhapur.
447 OA1 was using only one number. OA1 has not
brought on record that he was using any other number. The
aforesaid number i.e. XXXXXX2987 was being used by OA1 is
also evident from PW104-A.T. Patil’s evidence, though PW104
has been declared hostile. It is relevant to note that there was a
th
call made by OA1 to PW104 (Exh. 403), at 13:19 hours on 12
November 2006, asking him to come to D.N. Nagar Police
Station. The same is corroborated by PW104, who has admitted
that he was knowing OA1. Whereas, there is nothing to show that
PW104 knew A5. There is evidence of PW40 to show that
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PW104 mediated for Anil Bheda’s release and the same is
corroborated by CDR (Exh.403) of PW104 and it is further
corroborated by his 164 Cr.P.C statement (Exh.744) and the
evidence of PW40-Aruna Bheda. Cell ID 4593 shows that, PW-
104 had been to D.N Nagar Police Station at 15:00 hrs.
448 Although, PW104 was declared hostile, his evidence
to the extent that it supports the prosecution can be relied upon.
As is evident from the evidence of PW40, as PW104 mediated,
Anil Bheda was saved. The evidence of PW104 shows that he
knew Anil Bheda as well as OA1. The CDRs of PW104 and OA1
would also show that OA1 was using mobile number –
XXXXXX2987. In this context, it will be apposite to reproduce
th
the CDRs exchanged between PW104 and OA1 on 12
November 2006 when PW104 visited D.N. Nagar Police Station
to meet OA1.
S.Q. Pathan / N.S. Chitnis 819/867
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th
12 November 2006
st
1 call - at 13:19 hrs (OA1 to PW104) – location of OA1 at D.N.
Nagar.
nd
2 call - at 13:57 hrs (OA1 to PW104) – location of OA1 at
D.N. Nagar.
rd
3 call - at 14:02 hrs (OA1 to PW104) – location of OA1 at
D.N. Nagar and PW104 at Ghatkopar.
th
4 call - at 14:22 hrs (OA1 to PW104) – location of OA1 at D.N.
Nagar and PW104 at Chembur.
th
5 call - at 18:01 hrs (OA1 to PW104) – location of both OA1
and PW104 at D.N. Nagar.
th
6 call - at 20:47 hrs (PW104 to OA1) – location of PW104 was
at Kurla i.e. at PW104’s residence and OA1 at D.N. Nagar.
449 It is pertinent to note that around the same time Anil
Bheda was taken to Vashi Police Station by A2 and A3, where
Aruna Bheda withdrew the missing complaint lodged by her, as
Anil Bheda was brought to the Vashi Police Station. In this
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context the evidence of PW40 is relevant. She had deposed in
her evidence that Anil Bheda had disclosed to her when they
came out of the Vashi Police Station, that since Anant Patil
(PW104) mediated, his life was saved. It is also pertinent to note
that PW104 has admitted that his 164 statement was correctly
recorded. The statement of PW104 recorded under Section 164
shows that it was voluntarily recorded and that as Anil Bheda was
his friend he had mediated between OA1 and Anil Bheda.
450 It may also be noted that OA1 received a call from A7
at 12:39 hrs. i.e. one minute after the deceased was abducted
from Sector 9. The location of A7 as per the CDR, is at Sector 9
and that of OA1 at Esics Nagar i.e. D.N. Nagar Police Station. We
have discussed the CDR evidence in detail whilst dealing with the
circumstance of CDR. The CDR of A7 is at Exh. 409 and tower
location at Exh. 406 and the CDR of OA1 is at Exh. 543.
451 The other evidence which would point to the
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complicity of the respondent-OA1, is the evidence of PW32 and
PW55. The evidence of these two witnesses would reveal that on
th
12 November 2006, the said witnesses were taken in a green
Qualis vehicle used by OA1’s squad to Bhatwadi, where Anil
Bheda was confined by A2 and A3, who were members of OA1’s
squad. Since Anil Bheda and the deceased-Ramnarayan were
abducted together, we have recorded a finding that Anil Bheda
and Ramnarayan were abducted, whilst discussing the evidence of
`Abduction’ herein-above. There is no manner of doubt that the
evidence on record, both documentary and oral, clearly reveals
that Ramnarayan and Anil Bheda were in the custody of the
accused and later, after Ramnarayan was shot in an alleged fake
encounter, Anil Bheda was confined by the accused in their
custody.
452 It is also pertinent to note that an FIR was lodged by
A9 that Ramnarayan died in an encounter at Nana Nani Park on
th
11 November 2006 at about 20:30 hrs. In the said C.R, apart
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from others, A2, A3, A9 and A15 have been named. The said
appellants/accused i.e. A2, A3, A9 and A15 have admitted their
presence at the time of the encounter, in which the deceased was
killed, however, they maintained that it was a genuine encounter.
We have set out the stand of each of the accused i.e. police in para
32 herein-above. Infact, almost all police personnel initially
supported C.R. No. 302/2006, but later, some back tracked
during trial and most of them, during the hearing of these
appeals.
453 We have already recorded a finding that the
encounter was not a genuine encounter and that after
Ramnarayan and Anil Bheda were abducted, throughout, the two
of them were in the custody of the police till they were taken to
D.N. Nagar Police Station and thereafter, Ramnarayan was shot.
From the evidence on record, it is crystal clear that a fake
encounter was given the colour of a genuine encounter. It is not
the case of the appellants/accused that although Ramnarayan was
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abducted, he escaped from their custody and thereafter, he was
done to death in a genuine encounter. It may be noted, that once
it is proved that Ramnarayan was abducted by the police, the
burden was on the appellants/accused to prove under 106 as to
what happened to him, which burden has not been discharged by
the appellants/accused. We have already noted that the
appellants/accused, to show that it was a genuine encounter, had
planted a revolver and train tickets on the deceased. As noted
earlier, the report of the fingerprint expert (Exh. 284) shows that
no fingerprints were found on the weapon allegedly used by the
deceased nor was anything found in the handwash, taken of the
deceased. The aforesaid report reads thus :
| v-dz- | riklysyh oLrw | okijysys ek/;e | feGkysys Bls |
|---|---|---|---|
| 1- | fjOgkyOgj (Made in<br>Japan) | ;qfuOglZy ikoMj | ukgh- |
| 2- | 6 chamber, ykdMh eBq<br>vlysyk |
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The english translation of the aforesaid report reads thus :
| Sr.<br>No. | Verified item | Used Source | Fingerprints Found |
|---|---|---|---|
| 1 | Revolver (made in Japan) | Universal Powder | NO |
| 2 | 6 chember, having<br>wooden handle |
454 It may be noted that it is the case of the
appellants/accused that Ramnarayan fired from a gun. If that is
so, the same would have left some discharge/residue. As noted
earlier, the handwritten notes of hand wash report (Exh. 673)
mentions “nothing of note in relevance to fired gunshot residues
were detected in turbid liquid (Exhibits 1 and 2).” We have
already recorded our findings with respect to planting of railway
tickets and weapon on the deceased person. As noted, PW11
examined the body and noted the contents of the clothes on the
body in the MLC Entry 22278 (Exh. 174A). There is no mention
of railway tickets nor there is any mention in Exh. 285 station
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diary entry of any railway tickets. The same has been deposed to
by PW11. He has stated that no railway tickets have been
mentioned in the station diary entry. Although, there is no
mention in the station diary entry of railway tickets, there is
mention of railway tickets in the muddemal register (Exh. 299A)
and this would certainly raise suspicion about finding of tickets
on the deceased, for the first time, though there is no such entry
in the station diary. This leads us to believe that the said tickets
were planted on the deceased, to show that it was a genuine
encounter and that he had travelled by train and come to the
spot, as alleged by A9 in his FIR. We may note that we have dealt
with the said evidence in detail, whilst dealing with the
circumstance of `Murder / custodial death / encounter and as
such, paras 132 to 214 can be referred to, to avoid duplication.
455 The other circumstance as against OA1, is the
unusually high number of calls exchanged between him and the
other members of the squad, before, and on the day when the
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deceased was killed and on the next day, OA1’s CDR shows his
contact with the co-accused i.e:
(i) Calls between OA1 and A2 - 20 calls from 10.11.20006 to
12.11.2006;
(ii) Calls between OA1 and A4 - 8 calls from 10.11.20006 to
12.11.2006;
(iii) Calls between OA1 and A5 - 5 calls from 10.11.20006 to
12.11.2006;
(iv) Calls between OA1 and A6 - 7 calls from 10.11.20006 to
12.11.2006;
(v) Calls between OA1 and A7 - 7 calls from 10.11.20006 to
12.11.2006;
(vi) Calls between OA1 and A15 - 13 calls from
10.11.20006 to 12.11.2006.
456 It is also pertinent to note that as per the CDR, OA1's
th
presence is seen at Nana Nani Park on 11 November 2006 at
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20:17 hrs, which is where the alleged encounter is stated to have
taken place.
457 As far as OA1’s weapon is concerned, it is also
pertinent to note that a ruger revolver Butt No. 347 (Art.69) was
th
issued by Naigaon Armory to OA1, as his service weapon on 24
st
December 2001; that on 31 August 2008, OA1 was dismissed
from service and was asked to surrender his service weapon; and
that accordingly he surrendered his weapon (Art.69) to Dharavi
st
Police Station on 1 September 2008. The said evidence has been
brought on record by the prosecution witnesses i.e. PW66, PW59
and PW56. The evidence of all the three witnesses would show
that there is an unbroken chain of documents, which would
reveal that the weapon throughout was with OA1 i.e. OA1 had
uninterrupted and exclusive custody of the weapon (Art.69) from
th st
24 December 2001 till 1 September 2008.
458 PW86-Gautam Ghadge, Ballistic Expert has proved
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th
that the bullet Art.30.2 found in the deceased’s body on 11
November 2006 was fired from OA1’s service revolver i.e.
Art.69. The prosecution, in support thereof, relied on the
evidence of PW86, the ballistic expert and his hand notes and in
particular, Exhs.657–658.
459 Although Mr. Ponda, learned senior counsel for the
respondent vehemently submitted that the evidence of the
ballistic expert’s report cannot be relied upon, as the basis on
which the report was arrived at, we do not find any substance in
the said submission. We find that the ballistic expert has carried
out the examination and has given detailed analysis of the
examination carried out by him, as a ballistic expert and has come
to the conclusion, after conducting various tests, that the bullet
found in the deceased’s body was fired from OA1’s service
revolver i.e. Art.69. The ballistic reports are at Exhs. 657-658. It
is also pertinent to note that as per PW86 and his hand notes, an
empty cartridge (Art.63) was submitted by the members of the
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encounter team to Versova Police Station, after the alleged
encounter of the deceased. The evidence of PW86 also shows
that the said empty bullet was fired from OA1’s service revolver
(Art.69). Out of the three bullets retrieved, one bullet was fired
from OA1’s weapon, one from A9’s weapon and one from A15’s
weapon. OA1 has disputed the finding recorded by the ballistic
expert. As far as A9 and A15 are concerned, although they have
not disputed firing at the deceased, inasmuch as, according to
them, it was a genuine encounter, they disputed the Ballistic
Expert’s Report, however, they have not cross-examined PW86.
We have perused the explanation offered by OA1 to the question
put to him with respect to the ballistic report under Section 313.
OA1 has not offered any explanation to the same in his 313 as to
how the bullet Art.30/2 was fired from his service revolver (Art.
69), which was found in the deceased’s body, nor has OA1 given
any explanation under Section 313 as to how an empty cartridge
i.e. Art.63 fired from his service revolver (Art. 69) was
surrendered by A22 after the alleged encounter. Once it is
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established that the bullet found in the deceased’s body was fired
from the service revolver of OA1, the burden of providing an
explanation to this incriminating circumstance lies on OA1, and
as such, there is no explanation offered by OA1.
460 As far as OA1 is concerned, the ballistic evidence is
crucial and the same clinches the evidence qua the said accused,
apart from the other evidence.
461 In order to prove the movement of the weapon i.e.
there was an unbroken chain of movement of OA1’s weapon, the
following dates are crucial:
th
461.1 The evidence on record shows that on 24
th
December 2001, OA1 had handed over request letter dated 11
September 2001 (Exh.593A) signed by him, to the Naigaon
Armory, for issuance of a substitute weapon, as the fire-arm
issued to him earlier, had mal-functioned. Accordingly, OA1
deposited the mal-functioned weapon. PW66-Shabbir Sayyad,
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Head Constable was attached to the Magazine Section, Armory
Division, Naigaon. He has stated that a fire-arm was deposited
by OA1, as it was malfunctioning, pursuant to which, he gave
OA1 a 0.38 ruger revolver bearing serial No. 161–21934, Butt
No.347 (Art.69) and 30 rounds, against his signature (512A). The
said signature was taken in the Armory Weapon Register. The
said witness has stated that while issuing the said weapon i.e. Art.
69, OA1 signed at three places. It is pertinent to note that there is
no cross-examination on this aspect, nor has OA1 disputed his
signature either in the cross on the said document or under 313.
PW67-Manoj Desai was attached as PC to Magazine Section,
Armory Division, Naigaon at the relevant time. He has stated that
he had made an overleaf entry about handing over the revolver
and rounds to OA1 (Exh. 593A). The said witness has identified
the documents as well as the revolver handed over to OA1.
There are no suggestions either to PW60, PW66 or PW67 that
Exh. 512A or Exh.593A are forged entries. Infact, Exh.512A has
been brought on record in the cross-examination of PW60 by
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OA1. Even in his statement under Section 313, OA1 has not
denied the said entries, but has claimed ignorance about what
was stated by PW66 and PW67. It is pertinent to note that OA1
does not dispute his three signatures on the exhibit, made in
connection of the issuance of revolver i.e. (Exh. 593). It may be
noted that although OA1 has claimed ignorance of issuance of the
gun to him, he admits depositing of the very same revolver with
the Dharavi Police Station, after his dismissal. There is also no
suggestion to the witnesses that no gun (Art. 69) was issued to
him. Thus, having regard to the aforesaid, it is evident that the
prosecution has conclusively proved that the revolver (Art. 69)
was issued to OA1 and that he was using the same.
461.2 Art.18B is the bullet found in the deceased’s
body, which is attributed to OA1’s service revolver. A22
submitted an empty cartridge to the Police Station i.e. Art. 23,
which Article is linked to OA1’s weapon (Art. 69). As noted
earlier, there is no suggestion nor has OA1 denied or disputed the
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receipt of the revolver (Art. 69) or the correctness of the entries
in the Exhibits and nor has he disputed his signature,
acknowledging receipt of the fire-arm. Thus, the issuance of
revolver (Art. 69) and rounds to OA1 has been conclusively
proved by the prosecution.
462 As far as murder of Ramnarayan is concerned, at
th
about 18:00 hrs on 11 November 2006, PW22 issued a revolver
bearing Butt No. 468 (Art. 16) with 5 rounds, to A22. An entry
to that effect was made in the Weapon Movement Register (Exh.
217A); that A22 returned the said weapon and 4 rounds to PW23
th
on 12 November 2006, who made an entry to that effect in Exh.
222A. It is the prosecution case that 1 round was fired from
OA1’s gun and not from A22’s and for this, reliance is placed as
noted above, on the ballistic expert report and the evidence of
PW86.
th
463 On 12 November 2006, between 2:40 hrs. to 3:15
hrs. i.e. after the murder of the deceased, A22 handed over to
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PW39, a single empty cartridge (Art. 63), having description KF-
98-380-2 claiming that he fired it from his revolver i.e. Butt No.
468-Art.16, during the alleged encounter. A15 also produced a
single empty cartridge (Art. 60 having description KF-01-380-2),
claiming that he fired it from his revolver i.e. Butt No. 624. The
said empty cartridges were seized under a panchnama (Exh. 286)
before PW71-Dattatray Koyte, a panch witness and accordingly
entered in the station diary entry i.e. Exh. 287A as well as in the
Muddemal Register at Serial No. 149 (Exh. 300A).
464 It is pertinent to note that A15 and A22 declined to
cross-examine PW39 and PW71 and as such, they have not
challenged the surrender of the empty cartridge by them. In their
313 statements, with respect to Question No. 166, OA1, A15 and
A22 have answered as under:
Q.166
It has further come in his evidence that, accused API
Sarvankar and API Palande came to police station. Accused
API Sarvankar took out the empty shell from his revolver.
So also, accused API Palande took out the empty shell from
his revolver. The shell produced by accused Sarvankar had
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mark 'KF 98 380 2' and that of accused API Palande had
mark 'KF 01 380 2'. Each of the shells were packed
separately and labels were affixed. Accordingly, panchnama
was prepared in presence of panchas vide Exh.286. What
you have to say about it?
Accused 1: It is correct (vol 27)
Accused 15: It is true (34)
Accused 22: Yes (vol 42)
465 Thus, from the answers to the aforesaid questions put
under Section 313 Cr.P.C, it is evident that the said accused i.e.
OA1, A15 and A22 have admitted to the entries i.e. empty shells
being surrendered by A15 and A22.
th
466 On the very same day i.e. on 12 November 2006,
PW29-Dr. Gajanan Chavan, the Autopsy Surgeon, during the
post-mortem (Exh. 237) extracted three bullets i.e. Art. 30/1, Art.
30/2 and Art. 30/3 from the body of the deceased and handed the
said extracted three bullets to PW21 in a sealed condition, for
st
forwarding the same to the CA vide his letter dated 1 November
2011 (Exh. 214). The evidence of PW21-Kailas Ekilwale, PC
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attached to Versova Police Station, shows that he collected three
bullets i.e. Articles 30/1, 30/2 and 30/3 and the letter (Exh. 240)
from PW29 and handed over the same, to PW39 in a sealed
condition.
467 It is pertinent to note that there are no suggestions to
the said witness i.e. PW29 and PW21 that the said Exh. 240 and
Exh. 237 were forged documents. Infact, Exh. 214 has been
brought on record, in the cross-examination of PW21.
468 It is pertinent to note that thereafter, PW39-
th
Mohandas Sankhe, on 13 November 2006, forwarded the
bullets and other seized articles to the CA for examination vide
forwarding letter (Exh. 292) i.e. 3 bullets, and forwarding letter
(Exh. 294) i.e. empty cartridges, etc. through PW53 and PW91.
There is a station diary entry to that effect i.e. Exh. 297. The said
articles were deposited by PW53 and PW91 with the CA in a
sealed condition on the very same day. Again, we may note that
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there are no suggestions in the cross-examination of the said
witness that, Exh. 292, Exh. 294 and Exh. 297 are forged
documents, either to PW39, PW53 or PW91. Infact, Exh. 297
was brought on record in the cross-examination of PW39. Exh.
297 is the station diary entry (No.25). Thereafter, PW86, the
ballistic expert handed over examination materials in a sealed
condition alongwith his reports (Exh. 251A, 253A and 254A) to
th
PW91 on 18 August 2007, who kept the said articles in safe
custody in the Versova Police Station. The relevant entries made
in the muddemal register with respect to the same are at Exhs.
298 and 299A. Infact, both the said exhibits were brought on
record in the cross-examination of PW39. Exhs. 298 and 299A
read thus :
eqn~nseky uksan ogh-
'kfuokj fnukad 11/11/2006
| [kVyk<br>dzekad | tIrhpk<br>fnukad | ekyeRrk | ¼tsFks<br>ekyeRrk<br>Bsoyh<br>rs½<br>vfHk&<br>j{kLFkku | foYgsokVh lac/kh 'ksjk | |
|---|---|---|---|---|---|
| 1 | 2 | 3 | 4 | 5 | 6 |
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| 147<br>@06<br>iks-fu-<br>la[ks<br>iks-f’k-<br>dz-<br>27503 | xqUgk uksan<br>dzekad<br>302@06]<br>dye<br>307] 353]<br>Hkknoh<br>lg<br>dye<br>3]25]27]<br>Hkkgdk | Bk.ks<br>nuS na huh<br>uksan<br>dzekad<br>41@06<br>fnukad<br>11@11<br>@2006 | fjOgkyOgjP;k nksu<br>firGh iqaxG;k<br>iqaxG;kP;k ekfxy<br>cktwl KF-98-380-<br>2 vls fygysys vkgs-<br>EX 298 A | lsQ<br>32/07 | Tkk-dz- 6523/06 fn-<br>13/11/2006 vUo;s<br>lh-, djhrk ikBfoyk-<br>dyhuk ;sFkqu eqn~nes ky<br>o vgoky vk.kyk |
|---|---|---|---|---|---|
| 148<br>@06<br>iks-fu-<br>la[ks<br>iks-g-<br>dz-<br>22308 | xqUgk uksan<br>dzekad<br>302@06]<br>dye<br>307] 353]<br>Hkknoh<br>lg<br>dye<br>3]25]27]<br>Hkkgdk | Bk.ks<br>nuS na huh<br>uksan<br>dzekd<br>@06<br>fnukad<br>@ @<br>eqn~nes k<br>y o<br>vgoky<br>vk.kyk<br>Bk.ks<br>nuS fanuh<br>dz- | jfookj fnukad<br>12@11@06<br>v½ ?kVukLFkGh feGwu<br>vkysY;k oLwrw<br>[kkyhyizek.ks<br>1½ ,d Made in<br>Japan vls ,d<br>cktwl dksjysys fjoksOgj<br>2½ fjOgkyOgj e/khy<br>nksu ftoar dkMrqls<br>R;koj KF- 325 $<br>WL o rGkl gWej<br>ekdZ vlysys<br>3½ fjOgkyOgj e/khy<br>nksu fjdkes firGh<br>iqxG;k R;kaP;k rGk’kh<br>KF-325 $ WL vls<br>ekfdZx vlwu rGk’kh<br>gWej ekdZ vkgs-<br>4½ ?kVukLFkGh iMysyh<br>,d fjdkeh firGh<br>iqxGh R;koj KF-94<br>TMM-22 vls<br>ekfdZx EX 298 A<br>5½ jDr Hkjysyh ,d<br>ckVyh-<br>6½ ekrh feJhr jDr<br>vlysyh ,d ckVyh<br>7½ ekrh Hkjysyh ,d | lsQ<br>LVksvj | Tkk-dz- 6523@06 fn-<br>13@11@2006 vUo;s<br>lh-,-djhrk ikBfoyk-<br>tkod dzekad 157@09<br>fn- 19@12@09<br>lnjpk eqn~nes ky ek-<br>iksyhl mi vk;qDr fo-<br>riklh iFkd ef/ky<br>Jh- pkGds ;kaps<br>rkC;kr fn-<br>19@12@09 jksth<br>n.s ;kr vkyk-<br>Bk.ks nSufnuh dzekad<br>20@09<br>lnjpk eqn~nes ky tk- |
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| EX<br>299<br>A | fn-<br>11@11<br>@06 | ckVyh<br>c ½ bDosLV<br>iapukE;ke/;s rkC;kr<br>?ksrysY;k oLrw<br>[kkyhyizek.ks<br>1½ LVªspjojhy jDr<br>Hkjysyh ckVyh-<br>2½ LVªspjojhy jDr<br>Hkjysyh nqljh ckVyh<br>3½ djM;k jaxkpk Qqy<br>'kVZ<br>4½ djM;k jaxkph Qqy<br>iWUV<br>5½ lQsn lWMks cfu;ku<br>6½ fuGlj jaxkPkk tWaxk<br>7½ czkmu jaxkPkh cqV<br>tksM<br>8½ czkmu jaxkph ilZ<br>R;ke/;s 100: 9 uksVk]<br>10 :- ,d uksV]<br>5 :- ,d dkWbZu] 2 :-<br>ps nksu dkWbZu] 25<br>iS’kph lkr uk.kh] ,dw.k<br>919 ,d VsyhQksu<br>Mk;jh] nksu jsYos<br>frdhV<br>9½ olksZok ou eksckbZy<br>e/;s lkMysys jDr<br>Hkjysyh ckVyh- | d- 8193@olZsok@09<br>fn-19/12/09 vUo;s<br>ek- iksyhl mi vk;qDr<br>fo- riklh iFkd ef/ky<br>Jh- pkGds ;kaps<br>rkC;kr n.s ;kr vkyk- | ||
|---|---|---|---|---|---|
| 149<br>@06<br>iks-fu-<br>la[ks<br>EX<br>300<br>A | xqUgk uksan<br>dzekad<br>302@06]<br>dye<br>307] 353]<br>Hkknoh<br>lg<br>dye<br>3]25]27]Hk<br>kjrh;<br>gR;kj | Bk.ks<br>nuS fanuh<br>dz-<br>2@06 | 1½ fjOgkyOgjph firGh<br>iaqxGh iqXkGhP;k ekfxy<br>cktwl KF- 98- 380 -2<br>vls fygysys-<br>1½ fjOgkyOgjph firGh<br>iaqxGh iqXkGhP;k ekfxy<br>cktwl KF-1- 380 -<br>2 vls fygysys<br>eqn~nes ky o vgoky<br>vk.kyk | lsQ<br>32@07<br>EX<br>300 A | Tkk-dz- 6523@06 fn-<br>13@11@2006 vUo;s<br>lh-,-djhrk ikBfoyk- |
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| dk;nk |
|---|
English translation of the relevant Muddemal Entries, reads thus :
MUDDEMAL REGISTER
Saturday, date 11.11.2006
| Case<br>Number | Date of<br>Seizure | Muddemal<br>Property | Place where<br>the<br>muddemal<br>articles are<br>kept for safe<br>custody | Remarks<br>regarding<br>disposal | |
|---|---|---|---|---|---|
| 1 | 2 | 3 | 4 | 5 | 6 |
| 147/06<br>Police<br>Inspect<br>or<br>Sankhe,<br>Police<br>Consta<br>ble –<br>Buckle<br>No.<br>27503 | Crime Reg.<br>No.<br>302/2006,<br>Under<br>Sections<br>307, 353 of<br>the Indian<br>Penal Code<br>read with<br>Sections 3,<br>25, 27 of<br>the Indian<br>Arms Act | Station<br>Diary Entry<br>No.<br>41/2006,<br>dated<br>11.11.2006 | Two empty<br>brass<br>cartridges<br>from a<br>revolver,<br>having a mark<br>viz.<br>(unintelligible)<br>98 380.2,<br>engraved at<br>the bottom<br>thereof.<br>Exhibit 298-A | (kept in) the<br>safe.<br>32/07 | Sent for<br>C.A. under<br>the letter<br>bearing<br>Outward<br>No.<br>6523/2006,<br>dated<br>13.11.2006<br>.<br>Brought<br>the<br>Muddemal<br>articles and |
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| Report<br>from<br>Kalina. | |||||
|---|---|---|---|---|---|
| 148/06<br>Police<br>Inspect<br>or<br>Sankhe,<br>Police<br>Head<br>Consta<br>ble -<br>Buckle<br>No.<br>22308 | Crime Reg.<br>No.<br>302/2006,<br>Under<br>Sections<br>307, 353 of<br>the Indian<br>Penal Code<br>read with<br>Sections 3,<br>25, 27 of<br>the Indian<br>Arms Act | Station<br>Diary Entry<br>No.<br>--/2006,<br>dated -----.<br>Brought the<br>muddemal<br>articles and<br>the report. | Sunday, Date: | (kept in)<br>Safe Store | Sent for<br>C.A. under<br>the letter<br>bearing<br>Outward<br>No.<br>6523/2006,<br>dated<br>13.11.2006<br>. |
| 12.11.2006.<br>(a) The articles<br>that are found | |||||
| at the place of | |||||
| the incident | |||||
| are as under:<br>1) One<br>Revolver<br>having<br>engraved<br>‘Ducum Pad<br>Shrachand’<br>thereon on its<br>one side.<br>2) Two live<br>cartridges<br>from revolver,<br>having a mark<br>viz.<br>(unintelligible) |
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| 325 +<br>(unintelligible)<br>thereon and a<br>hammer mark<br>at its bottom.<br>3) Two empty<br>brass<br>cartridges<br>from<br>Revolver,<br>having a mark<br>viz.<br>(unintelligible)<br>325 +<br>(unintelligible)<br>thereon and a<br>hammer mark<br>at its bottom.<br>4) One empty<br>brass cartridge<br>having a mark<br>viz.<br>(unintelligible)<br>94<br>(unintelligible)<br>22 thereon | These<br>muddemal<br>articles<br>have been<br>handed<br>over in the<br>possession<br>of Shri<br>Chalke<br>from the<br>Special<br>Investigatio<br>n Team of<br>the Deputy |
|---|
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| EX.<br>299 A | found lying at<br>the place of<br>the incident.<br>Exhibit 298-A<br>5) One bottle<br>containing<br>blood.<br>6) One bottle<br>containing<br>blood mixed<br>soil.<br>7) One bottle<br>containing<br>soil. | Commissio<br>ner of<br>Police on<br>the date<br>19.12.2009<br>, under the<br>letter<br>bearing<br>Outward<br>No.<br>157/2009,<br>dated<br>19.12.2009<br>.<br>Station<br>Diary<br>Entry No.<br>20/2009.<br>These<br>Muddemal<br>Articles<br>have been<br>handed<br>over in the<br>possession | |||
|---|---|---|---|---|---|
| B) Articles that<br>are taken into<br>possession<br>under Inquest<br>panchnama,<br>are as under:<br>1) Bottle<br>containing<br>sample of<br>blood spilled |
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| on stretcher.<br>2) Another<br>bottle<br>containing<br>sample of<br>blood spilled<br>on stretcher.<br>3) Gray<br>coloured full<br>sleeves shirt<br>4) Gray<br>coloured Full<br>pant .<br>5) White<br>‘Sando’<br>Banian.<br>6) Bluish<br>coloured<br>underwear.<br>7) A Pair of<br>brown<br>coloured shoes<br>8) Brown<br>coloured<br>wallet<br>containing 9 | of Shri<br>Chalke<br>from the<br>Special<br>Investigatio<br>n Team of<br>the Deputy<br>Commissio<br>ner of<br>Police<br>under the<br>letter<br>bearing<br>outward<br>no.<br>6193/Verso<br>va/09,<br>dated<br>19.12.2009<br>. |
|---|
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| currency notes<br>of the<br>denomination<br>of Rs.100/-<br>each, one<br>currency note<br>of the<br>denomination<br>of Rs.10/-, one<br>coin of the<br>denomination<br>of Rs.5/-, two<br>coins of the<br>denomination<br>of Rs.2/- each<br>and seven<br>coins of the<br>denomination<br>of paise 25<br>each, thus<br>total amount<br>of Rs.919, one<br>telephone<br>diary, two<br>railway tickets. |
|---|
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| 9) Bottle<br>containing<br>sample of<br>blood spilled<br>in Versova<br>One Mobile<br>van. | |||||
|---|---|---|---|---|---|
| 149/06<br>P.I.<br>Sankhe<br>EX.<br>300 A | Crime Reg.<br>No. 302/06,<br>under<br>sections<br>307, 353 of<br>the Indian<br>Penal Code<br>r/w sections<br>3, 25, 27 of<br>the Indian<br>Arms Act. | Station<br>Diary Entry<br>No. 2/06 | 1) Brass<br>cartridge of<br>revolver,<br>having a mark<br>viz.<br>(unintelligible)<br>98. 380.2 on<br>the bottom<br>thereof.<br>1) Brass<br>cartridge of<br>revolver,<br>having a mark<br>viz.<br>(unintelligible)<br>1- 380.2 on<br>the bottom<br>thereof. | (Kept in)<br>Safe<br>32/07<br>Ex. 300 A | Sent for<br>C.A. under<br>the letter<br>bearing<br>Outward<br>no.<br>6523/06<br>dated<br>13.11.2006<br>. |
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| Muddemal<br>and the Report<br>have been<br>brought. |
|---|
th
469 On 30 August 2008, OA1 was dismissed from
st
service under Article 311. On 1 September 2008, after OA1’s
dismissal from service, PW59 (Admin PI, Dharavi Police Station)
st
vide letter dated 1 September 2008 (Exh. 480) asked OA1 to
deposit his service weapon and ammunition at Dharavi Police
Station; that OA1 deposited his arms and ammunition, including
the service revolver Butt No. 347 (Art. 69) and 6 rounds (Art.
st
115) at Dharavi Police Station on 1 September 2008. The said
weapons and rounds were seized by PW59. Accordingly, station
diary entry which is at Exh. 477A was effected by PW59.
Thereafter, the arms and ammunition were handed over to PW56
for safe custody. PW56 kept the service revolver Butt No. 347
(Art. 69) and 6 rounds (Art. 115 colly) at Dharavi Police Station
in safe custody in the armory cupboard.
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470 It is evident from the cross-examination of PW56 that
OA1 has accepted handing over of the weapon at his residence
and not at Police Station. He, however, does not dispute
surrendering of his weapon and signing on the letter (Exh. 480).
The said Exh. 480 was produced by the prosecution at the
instance of OA1’s lawyer during the cross-examination of PW56.
It was further suggested in the cross-examination to PW56 and
which was admitted by him that the said weapon was in the
st th
custody of Dharavi Police Station from 1 September 2008 to 12
December 2009. The same although referred in the cross-
examination of PW56, no question was asked or suggestion given
regarding the corrections made in Exh. 478A. Exh. 478A reads
thus :
fnukad 12@12@2009
cMrQZ iks-fu-Jh- iznhi jkes’oj ’kekZ@/kkjkoh iks-Bk.ks
;kaps ukokojhy -38 cksvj fjOgkWYoj :xj cVa dz
347@161&21934 QDr ‘kL= iks- g- dz 990068
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izfo.k dklkoGsdj@/kkjkoh iks- Bk.ks ;kauh uk;xkao
’kkL=xkjkr tek dsys-
fnukad 12@12@2009
ueqn i=krhy tkod vkod izek.ks cMrQZ iks- fu
Jh- iznhi ‘kekZ /kkjkoh iks- Bk.ks ;kaps ukokoj vlysyh 9
m.m dkczh- e- xu cV dz- 600 lkscr 02 ux eWx>hu
vkt jksth uk;xkao ’kkL=xkjkr iks- g- 990068@ izfo.k
DklkoGsdj] /kkjkoh iks-Bk.ks ;kauh tek dsyh-
English translation of Exh. 478A reads thus :
Date : 12/12/2009
“P.H.C. B. No. 990068 / Pravin Kasavalekar, Dharavi
Police Station deposited 38 Bore Revolver ‘Ruger’ Butt No.
347/161-21934 only, allotted to the suspended P. I. Shri Pradeep
Rameshwar Sharma/Dharavi Police Station, in Naigaon
Armoury.”
Date : 12/12/2009
“As per the Inward Outward number in the mentioned
letter, today, P.H.C. B. No. 990068/ Pravin Kasavalekar, Dharavi
Police Station deposited Magazines – 2 numbers alongwith ‘9
m.m. ‘Kabari’ Machine Gun Butt No.600’ allotted to the
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suspended P. I. Shri Pradeep Sharma/Dharavi Police Station, in
Naigaon Armoury.”
471 It is pertinent to note that under Section 313, while
answering Question 310, OA1 has admitted depositing of the
st
arms and ammunition in the Police Station on 1 September
2008. No suggestions have been given to PW56 or PW59 that the
station diary entry with respect to the deposit of the gun (Exh.
477A) and Exh.480 and that the said documents are fabricated
and forged documents. Infact, Exh. 480 was brought on record
in the cross-examination of PW56. Infact, the trial Court has
recorded a finding that OA1 was possessing a service revolver
th st
from 24 December 2001 till 1 September 2008.
th
472 On 20 August 2009, the present FIR i.e. C.R. No.
246/2009 was registered with the Versova Police Station as
against the appellants/accused and the respondent.
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th
473 On 4 December 2009, PW110-K.M.M. Prasanna,
Head of the SIT (I.O) requested Naigaon Armory vide letter Exh.
495 to provide OA1’s service revolver Butt No. 347 (Art. 69) for
ballistic examination. A perusal of the cross-examination of
PW109 / PW110 would indicate that there are no suggestions
made to the said witness that Exh. 495 is a fabricated or a forged
document.
th
474 On 10 December 2009, PW98-Sandeep Dal, Sr. PI,
Naigaon Armory, sent a letter (Exh. 488) to Sr. PI, Dharavi Police
Station asking him to deposit OA1’s service revolver, Butt No.
347 (Art. 69), as the same was requested by PW110 for ballistic
examination.
th
475 On 12 December 2009, PW59, in response to the
letter (Exh. 488) sent OA1’s surrendered weapon i.e. ruger
service revolver Butt No. 347 (Art. 69) and 6 rounds of
ammunition with PW56 to Naigaon Armory vide covering letter
S.Q. Pathan / N.S. Chitnis 852/867
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(Exh. 478A) prepared by him. It is pertinent to note that there is
no suggestion to this witness that he did not send the ruger
revolver Butt No. 347 (Art. 69) to the Naigaon Armory.
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476 On 17 December 2009, PW60-Maruti Patil attached
to the Magazine Section at Naigaon Armory Depot, handed over
revolver butt No. 347 (Art. 69) to PW109 under panchnama
(Exh.261) before PW34-panch witness, by making an overleaf
entry (Exh. 495) and also by making an entry in the Armory
Weapon Register (Exh. 511A). After seizure of the weapon,
PW107 and PW109 deposited the said weapon in the safe
custody of Versova Police Station Labelled (Art. 42) and seal (Art.
43). The same were identified by PW34 and PW109. There are
no suggestions with respect to the same in the cross of PW60 by
OA1. The relevant evidence in that context is of PW34, PW60,
PW107 and PW109.
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477 PW110 vide letter dated 17 December 2009 (Exh.
717) addressed to PW99, requisitioned seized articles of C.R. No.
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302/2006, delivered by PW107 to PW99, Sr. PI, Versova Police
Station. The evidence of PW99 and PW110 with respect to the
same is as under:
478 PW99-Suresh Nalawade, Sr. PI, who was attached to
Versova Police Station, handed over 6 sealed packets of C.R.
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No.302/2006 to PW107 on 19 December 2009 under a covering
letter (Exh. 718). Accordingly, entry was taken in the muddemal
register (Exh. 299A) as well as station diary entry was made (Exh.
751A). PW107 has deposed that he collected 13 sealed packets
seized by SIT during investigation and had kept the same in the
safe study of Versova Police Station. PW107 has further deposed
that he deposited 19 packets, which were in a sealed condition,
with FSL, Kalina vide forwarding letter (Exh. 656). The said 19
packets included 6 articles of C.R. No. 302/2006 and 13 articles
seized during the investigation of the present crime. According to
PW86, the ballistic expert, he opened the said sealed parcels and
verified that the contents were as per the forwarding letter (Exh.
656).
S.Q. Pathan / N.S. Chitnis 854/867
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479 It is pertinent to note that neither any suggestions
have been made to PW99 that he did not handover 6 sealed
packets of the case property to PW107 vide Exh. 718 nor any
suggestion has been made to PW107 that he did not handover the
articles mentioned in the forwarding letter (Exh. 656) or that he
made a false station diary entry (Exh. 751A) regarding ruger
revolver (Art. 69). No suggestion has been given to PW86 that
the ruger revolver butt No.347 (Art. 69) was not sent to him for
ballistic examination and that a Glock pistol was sent in its place.
Infact, PW107 has not been cross-examined on the point of
depositing 19 sealed packets with the FSL.
480 According to PW86-the ballistic expert, he completed
his report (Exh. 658) with respect to the seized articles
alongwith articles collected by PW108 vide letter (Exh. 659) on
nd
2 February 2010. He has stated that as per his analysis, Art. 63
was fired from ruger revolver Butt No.347 (Art. 69) and not from
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revolver Butt No. 468 (Art. 16); that Art. 60 was fired from Butt
No.624 (Art. 18) (A15’s weapon) and Art. 46 colly. was fired
from Butt No. 475 (Art. 15) (A9’s weapon). The ballistic report
shows that the three bullets which were retrieved from the
deceased’s body were fired from the service weapon issued to
OA1, A9 and A15. The two empties were surrendered by A9,
which according to A9 were fired from his service weapon; and
one empty surrendered by A15 which was fired from his weapon.
The ballistic report would reveal that one empty surrendered by
A22 was fired from OA1’s service revolver and one empty found
on the spot allegedly fired by A11 was infact fired from A2’s
service weapon.
481 It is pertinent to note that PW86 was only cross-
examined by OA1 and A2 and that there is no cross-examination
or challenge by A9, A11, A15 and A22.
S.Q. Pathan / N.S. Chitnis 856/867
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482 PW86-the ballistic expert’s report was challenged by
OA1 vis-a-vis, PW86’s expertise and qualification. The evidence
of PW86 would reveal that he had 20 years of experience, having
joined in 1986 and that from 1990, he was in the Ballistic
Department. PW86 has, in detail, set out the procedure adopted
by him and how he reached the analysis, after conducting detailed
investigation /examination. The evidence of PW86 as well as his
report, inspires confidence and clearly shows his expertise in the
field. We may again note, that we have again in great detail
discussed the `Ballistic Evidence’ circumstance in paras 186 to
245.
483 The aforesaid evidence clearly shows the movement
of weapons and is duly supported by documents, as stated
aforesaid. Thus, there is no reason to disbelieve the evidence of
PW86 that has come on record with respect to the ballistic report
(Exh. 658 Colly.).
S.Q. Pathan / N.S. Chitnis 857/867
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484 With respect to the ballistic evidence and the report,
it is pertinent to note that A11 had claimed that he fired, but the
empty surrendered by him in C.R. No.302/2006, was found to
have been fired from A2’s service weapon. Similarly, the empty
shell surrendered by A22, after firing, was found to have been
fired from OA1’s service weapon. The ballistic expert’s report
also clearly shows that A9 and A15 had also fired from their
service weapons.
485 It is pertinent to note that the trial Court has believed,
accepted and relied upon the evidence of PW86 (Ballistic Expert)
and the Ballistic Report, whilst convicting other
appellants/accused i.e. A9, A2 and A15. It may also be noted that
though the trial Judge accepted the ballistic expert’s report that
OA1 had fired A22’s bullet from his (OA1’s) service weapon at
Ramnarayan, yet he chose not to convict OA1, only on the basis
of the ballistic expert’s evidence, after observing that ballistic
evidence by itself was a weak piece of evidence, in the absence of
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any corroboration to the same. We, whilst dealing with the
circumstance of ballistic evidence, have in detail considered the
law relating to the same and as such do not find it, to be a weak
piece of evidence.
486 Be that as it may, apart from the ballistic evidence,
there are other circumstances/evidence, which are clearly
overlooked by the trial Court i.e. there were accused deputed to
work under OA1; that there was a squad of OA1; that the
evidence on record shows that OA1 was using A5’s mobile
number, which also shows OA1’s presence at the Nana Nani Park;
and that OA1 was continuously in touch with the co-accused. In
addition to the aforesaid evidence, the disclosure made by Anil
Bheda to his wife PW40-Aruna Bheda is also relevant and a
circumstance qua OA1. We have in detail considered and held
that the disclosure made by Anil Bheda and PW40 as being
admissible under Section 6 - principle of res gestae in paras 112
to 129. It is pertinent to note that Anil Bheda had disclosed to
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his wife, PW40, that Ramnarayan and he were abducted by OA1’s
men and taken to D.N. Nagar Police Station, where OA1 was
present, and that his life was saved because of the faxes and as
PW104 mediated.
487
In addition, there is evidence of witnesses with
respect to threats extended to them and to Anil Bheda, by family
members of the accused and lawyers who were appearing for the
accused, including lawyers appearing for OA1, at the relevant
time, to toe a particular line and to leave the City.
488 All the aforesaid circumstances, have been ignored
and clearly overlooked by the trial Court. In the facts, we hold
that the finding of acquittal recorded by the trial Court, is clearly
perverse and unsustainable, by ignoring or excluding relevant
material, despite there being overwhelming evidence pointing to
the complicity of OA1 in the crime, thereby warranting our
interference. We find the finding of the learned Judge to be
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perverse, inasmuch as, it is against the weight of evidence. We, in
the facts, find that it is not possible to take any other view than
the view taken by us, having regard to the overwhelming evidence
adduced by the prosecution.
489 Thus, the circumstances relied upon by the
prosecution even qua OA1 form a chain, which is so complete
and which unerringly points to the guilt of OA1 and excludes any
hypothesis consistent with the innocence of the OA1.
490 For the reasons aforesaid, the following order is
passed :
ORDER
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(1) The judgment and order dated 12 July 2013 passed
by the Ad-hoc Additional Sessions Judge, City Civil & Sessions
Court, Greater Bombay, in Sessions Case No. 317/2010, to the
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extent that it acquits OA1- Pradeep Sharma, is quashed and
set-aside and the respondent (OA1) in Criminal Appeal No.
854/2013 and Criminal Appeal No. 350/2015, is convicted
and sentenced as under :
- for the offence punishable under Sections 120B r/w 364
of the IPC, to suffer imprisonment for life and to pay a fine
of Rs. 5,000/-, in default, to suffer rigorous imprisonment
for a period of two years;
- for the offence punishable under Section 120B r/w 365 of
the IPC, to suffer rigorous imprisonment for a period of
seven years and to pay a fine of Rs. 5,000/-, in default, to
suffer rigorous imprisonment for a period of one year;
- for the offence punishable under Section 120B r/w 368 of
the IPC, to suffer rigorous imprisonment for a period of
seven years and to pay a fine of Rs. 5,000/-, in default, to
suffer rigorous imprisonment for a period of one year;
- for the offence punishable under Section 368 of the IPC,
to suffer rigorous imprisonment for a period of seven years
and to pay a fine of Rs. 5,000/-, in default, to suffer
rigorous imprisonment for a period of one year;
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- for the offence punishable under Section 120B r/w 302 of
the IPC, to suffer imprisonment for life, and to pay a fine of
Rs. 5,000/-, in default, to suffer rigorous imprisonment for
a period of three years;
- for the offence punishable under Section 364 r/w 109 r/w
120B of the IPC, to suffer imprisonment for life, and to pay
a fine of Rs. 5,000/-, in default, to suffer rigorous
imprisonment for a period of two years;
- for the offence punishable under Section 365 r/w 109 r/w
120B of the IPC, to suffer rigorous imprisonment for a
period of seven years and to pay a fine of Rs. 5,000/-, in
default, to suffer rigorous imprisonment for a period of one
year;
- for the offence punishable under Section 344 r/w 34 of the
IPC, to suffer rigorous imprisonment for a period of three
years and to pay a fine of Rs. 1,000/-, in default, to suffer
rigorous imprisonment for a period of three months;
- for the offence punishable under Section 302 r/w 34 of the
IPC, to suffer imprisonment for life, and to pay a fine of Rs.
5,000/-, in default, to suffer rigorous imprisonment for a
period of three years;
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- for the offence punishable under Section 201 r/w 109 r/w
120B of the IPC, to suffer rigorous imprisonment for a
period of three years and to pay a fine of Rs. 1,000/-, in
default, to suffer rigorous imprisonment for a period of
three months;
- for the offence punishable under Section 119 of the IPC,
to suffer rigorous imprisonment for a period of three years
and to pay a fine of Rs. 1,000/-, in default, to suffer
rigorous imprisonment for a period of three months.
(2) All substantive sentences to run concurrently.
(3) OA1- Pradeep Sharma to surrender before the
appropriate Court, within three weeks from today.
491 We in the facts, do not think that it is necessary to
hear the respondent OA1 under Section 235(2) of Cr.P.C, since
the sentence awarded for the offence under Section 302 i.e. for
the principal offence, is imprisonment for life and life
imprisonment being the minimum sentence that can be awarded
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for the offence punishable under Section 302 r/w other sections
of the IPC. Rest of the sentences are to run concurrently with the
sentence awarded under Section 302 read with other sections of
the IPC.
492 Accordingly, both the appeals against acquittal of OA1
i.e. Criminal Appeal Nos. 854/2013 and 350/2015 are allowed.
VI. CRIMINAL REVISION APPLICATION NO. 182/2023 :
493 The aforesaid application has been filed by the
complainant (PW1)-brother of deceased-Ramnarayan, seeking
enhancement of the sentence awarded to the respondents therein
i.e. respondent Nos. 1 to 12, all police personnel i.e. for
enhancement of their sentences from life imprisonment to death.
494 The applicant, who appeared in-person did not press
the revision application, much less, argued the said application.
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495 In view of the same, nothing survives for
consideration in the said application. The same stands disposed
of, as not pressed.
496 Before parting with the judgment, we would like to
acknowledge the efforts taken by all the learned counsel
appearing for the appellants and Shri Palande (A15), who
appeared in-person, as well as Mr. Chavan, learned Special P.P. for
the State and Dr. Chaudhry for the complainant. We would also
like to place on record our special appreciation for the efforts
taken and the invaluable assistance rendered by Mr. Chavan,
learned Spl. PP and his team, in collating all the documents. It
was a mammoth task. 57 Volumes, 110 witnesses and paper
book running into 17064 pages. The hearing could not have
been completed without interruptions, but for the cooperation of
all the counsel appearing for the respective parties.
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496 All concerned to act on the authenticated copy of this
judgment.
GAURI GODSE, J. REVATI MOHITE DERE, J.
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