Full Judgment Text
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srk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Appellate Side
Criminal Appeal No.1129 of 2002
Ashok Hiralal Yadav Appellant
(Org. Accused no.4)
Vs.
The State of Maharashtra Respondent
With
Criminal Appeal No.350 of 2003
Satyanarayan @ Raju Sunderlal Jangare Appellant
(Org.Acused no.2)
Vs.
The State of Maharashtra Respondent
With
Criminal Appeal No.385 of 2007
1. Manisha @ Sanju Lalji Chavan
2. Pooja @ Pappi Ramesh Yadav Appellants
(Org.Accused Nos.1
and 3)
Vs.
The State of Maharashtra Respondent
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Mr.D.G.Khamkar for appellant in Cri.Appeal No.1129 of 2002.
Mr.Abhaykumar Apte, Advocate appointed for appellant in Cri.
Appeal No.350 of 2003.
Ms.Sharmila Kaushik for appellants in Cri. Appeal No.385 of
2007.
Mrs.V.R.Bhosale, APP for State.
CORAM: B.H.MARLAPALLE & SMT.ROSHAN S. DALVI,JJ.
August 24 & 25, 2009.
ORAL JUDGMENT (PER B.H.MARLAPALLE,J.)
1. All these appeals arise from the order of conviction and
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sentence dated 18 and 20 February 2002 passed by the
learned Addl. Sessions Judge, Greater Mumbai in Sessions Case
No.239 of 2000. Appeal No.1129 of 2002 has been filed by
Ashok Hiralal Yadav - original accused no.4 whereas Appeal No.
350 of 2003 has been filed by the original accused no.2
Satyanarayan @ Raju Sunderlal Jangare and Criminal Appeal
No.385 of 2007 has been filed by accused no.1 Manisha @
Sanju Lalji Chavan and accused no.3 Pooja @ Pappi Ramesh
Yadav. Accused nos.1, 3 and 4 are the residents of Indore
whereas accused no.2 is the resident of Halda, Madhya
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Pradesh. They have been convicted and sentenced for the
offences punishable under Section 120-B, Section 449 read with
Section 120-B, Section 302 read with Section 120-B and Section
394 read with Section 120-B of IPC and the highest sentence
awarded is life imprisonment under Section 302 read with
Section 120-B of IPC.
2. As per the prosecution case Vinodchandra Solanki aged
about 55 to 60 years was residing in Flat No.1001, Vikas
Towers, New Amboli Crossing, Andheri (East), Mumbai. Though
he was a married man and had a son by name Jignesh – PW 1,
he was staying away from the family from the year 1989
onwards and PW 17 Smt. Renuka Rameshchandra Modi started
staying with him from the year 1990. Initially they were staying
at Panchsheel Apartment and in the year 1995 Vinodchandra
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Solanki shifted to Flat No.1001, Vikas Towers, 10 floor.
However, sometimes in the year 1997 PW 17 Renuka left his
company and started staying at J.B. Nagar in her own house.
But, they used to meet each other from time to time. On
23/9/1999 PW 18 - Madhukar Nikam, PW 19 – Bhimrao Indalkar
and PW 20 - Jaywant Sarmokadam were the police officers on
duty at the Andheri Police Station and at about 11.30 p.m. PW 1
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– Jignesh, the son of Vinodchandra Solanki went to the Andheri
Police Station along with three other persons and informed the
officers on duty that his father who was residing in Flat No.1001
of Vikas Tower Building did not open the flat door and it was
latched from inside. He further stated that despite his knocking
on the door for sometime, none opened the door and some
pungent smell was coming from inside the flat. Police Officers
team, therefore, accompanied the complainant and went to Flat
No.1001 of Vikas Towers. They tried to press the bell so that
somebody from within would open the door but there was no
response and, therefore, the Chairman and Secretary of the
Society were called and in their presence the flat door was
broken open. After entering into the flat it was noticed that a
dead body was lying in the bedroom which was identified by
PW 1 – Jignesh as that of his father. The clothes on the body
were stained with blood and one cloth was found gagged in the
mouth of the deceased. On phone running CR number was
called and it was recorded as CR No.393 of 1999 against
unknown persons on recording complaint (Exhibit 10) of PW 1.
Two panch witnesses were called in the flat and the Inquest
panchanama at Exhibit 26 was drawn and the dead body was
sent to Cooper Hospital for post mortem along with PC Buckle
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No.9684 and PC Buckle No.1935. On 24/9/1999 the post
mortem was conducted and report was received at Exhibit 27-
A. Statements of Chandrakant Kawle PW 2, Tilambekar
watchman / liftman PW 5, and Rahima Begum Mohd.
Hassanuddin - PW 6 who was working as the maid servant for
the deceased were recorded. Some articles lying at the spot
were also recovered and brought to the police station and blood
sample was also drawn at about 5.15 a.m. on 24/9/1999. On
the basis of the complaint at Exhibit 10, C.R. No. 393 of 1999
was registered with the police station for the offence
punishable under Section 302 read with Section 394 of IPC
against unknown persons. During the course of investigation
API Pathan arrested one female accused by name Sanju @
Manisha Chavan (accused no.1) from Indore on 27/10/1999, in
connection with C.R.No.393/1999 and she was brought to the
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Andheri Police Station. During her interrogation on 3
November 1999 she made voluntary statement which was
recorded at Exhibit 44 and she had shown her willingness to
accompany the police team to Indore. PW 19 along with other
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police personnel left for Indore in the early hours of 6
November 1999 and reached Halda at about 11.30 p.m. by
road. At the instance of accused no.1, the police team with the
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help of the Halda Police Station personnel took accused non.2
in custody at about 00.30 hours, recovered some articles
belonging to the deceased from the house of accused no.2 and
recovery panchanama at Exhibit 25 was drawn for which PW 10
Shri Mohammed Khan Guljar Khan was the panch witness.
Thereafter the police team of Andheri Police Station left for
Indore by road and reached at about 9 a.m. on 7/11/2009 along
with accused nos.1 and 2. They went to Chatripura Police
Station at Indore and requested for police constables to be
provided. They proceeded for Sai Baba Mandir Road and at the
instance of accused no.1, accused no.3 was apprehended near
Nidhi Apartment. Accused no.3 showed her willingness to make
a statement which was recorded in the presence of two
witnesses (Exhibit 73) and some articles were recovered at her
instance. Then the police team proceeded towards Dravid
Nagar area of Indore city and apprehended accused no.4 at the
instance of accused no.1 He had also shown his willingness to
make voluntary statement which was reduced in writing in the
presence of Shri Sanjay Jain PW 14 and Shri Madan Astol. Some
articles in addition to Rs.5000/- were claimed to have been
recovered from a jewellery shop belonging to Vishnuprasad
Jaiswal. As per the police they also recovered a knife concealed
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in the backyard of accused no.4 (Exhibit 77). With all the
accused in their custody, the police team returned to Mumbai
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i.e. Andheri Police Station on 8 November 1999 at about 10
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a.m. by road. Test Identification parade was held on 18
November 1999 by Smt. Alka Paralkar – PW 3 and SEO, wherein
PW 2 – Chandrakant Kawle, PW 5 – Sitaram Tilambekar and PW
6 - Rahima Begum Mohd. Hassanuddin participated and
identified all the four accused as per the memorandum of
identification at Exhibits 14 and 15. During the course of
further investigation PW 20 deputed PW 19 to visit Akola on
27/11/1999. He interrogated PW 4 Shri Nilkanth Kore and his
brother as well as father. It is the case of the prosecution that
this witness had admitted about the visit of all the four accused
to his house and overnight stay prior to the date of the offence.
His statement was recorded at Exhibit 86 and he was asked to
visit Mumbai and as per the same he visited Andheri Police
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Station on 29/11/1999. In the mean while on 3 November
1999 the clothes of the deceased were sent for CA and CA
report was received at Exhibit 29. On completion of
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investigation, charge-sheet was filed on 25 January 2000
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(Exhibit 96) before the 10 Court of Metropolitan Magistrate at
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Andheri. Committal order was passed on 16 February 2000
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under Section 209 of Cr.P.C. and the charge was framed on
18/12/2001.
3. As per the prosecution the deceased Vinodchandra
Solanki was running a business along with his brother Dilip
Solanki and he also had another brother by name Nitin Solanki.
Dilip was staying with his wife Sudha and Nitin was staying with
his wife Madhavi in their own homes. Accused no.1 was staying
as a paying guest for some time with Nitin and Madhavi Solanki
and, therefore, she was known to the deceased. It is further
claimed that accused no.1 while staying as paying guest with
Madhavi, had also visited the house of the deceased on some
occasions and thus was known to the deceased. After accused
no.1 left Mumbai, she went back to her native place Indore and
she was also aware that PW 17 Renuka Modi had stopped
staying with the deceased and, therefore, she hatched a
conspiracy at Indore involving the other three accused so as to
rob and murder the deceased. As part of this conspiracy, all
the four accused left from Indore, halted at Akola overnight in
the house of PW 4, the brother-in-law of accused no.4 and on
the next day they proceeded to Mumbai. Accused no.4
remained at the railway station in Mumbai and accused nos.1
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to 3 came to Vikas Towers around 9 a.m. on 22/9/1999. The
watchman on duty PW 2 – Chandrakant Kawale did not allow
the accused nos.1 to 3 to go to the house of the deceased i.e.
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Flat No.1001 on 10 floor and hence accused no.1 contacted
the deceased on intercom. After some time the watchman, on
the instructions of the deceased, allowed all the three accused
to go to the flat of the deceased and PW 5 Tilambekar was the
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watchman-cum-liftman who reached the accused to the 10
floor. The accused entered the flat of the deceased and at
about 9.30 a.m. PW 6 Rahimabi, maid servant reported for her
work. At the instructions of the deceased, PW 6 prepared tea
for the accused and the lady guests entered the kitchen and
carried the tea to be served to all the accused. PW 6 left the
house of the deceased around 10.30 a.m. on 22/9/1999. The
accused came down from the flat of the deceased at about 1.30
p.m. and this was seen by PW 2 as well as PW 5. While going
to the flat as well as returning from the flat of the deceased,
accused no.2 was carrying a suitcase and accused nos.1 and 3
had their lady’s purse. Around 2 p.m. on 22/9/1999 a courier
boy entered Vikas Towers and he came down to the watchman
– PW 5 and stated that he wanted to deliver a letter addressed
to the deceased but there was no response to open the flat
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despite his multiple attempts to press the bell and, therefore,
the said mail was received by PW 5. It was only on the next
day i.e. on 23/9/1999 when PW 1 along with three or four
persons came to visit the house of the deceased, he did not get
any response and, therefore, went to Andheri Police Station.
4. The case of the prosecution is based entirely on
circumstantial evidence and in the process the prosecution
examined twenty witnesses. The statements of the accused
under Section 313 of Cr.P.C. were recorded in which they denied
their involvement in the crime and did not examine any
witnesses in defence. However, in their respective statements
recorded under Section 313 of Cr.P.C., the accused no.1
admitted that she was arrested at Indore on 27/10/1999 and
that she was staying as a paying guest with Madhavi Solanki for
some time. Other accused also admitted about their arrest at
Halda and Indore, as the case may be. The prosecution also
claimed that on the arrest of the accused, certain recoveries
were made. It was claimed that the knife was recovered from
accused no.4 and gold chain and Wrist watches along with
Government Currency notes of Rs.100/- (50 notes) were also
recovered from the accused. In support of these recoveries the
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prosecution examined PW 12 – Deepak Jain, PW 14 – Sanjay
Jain, PW 7 – Ramesh Ghogare and all these witnesses turned
hostile. The prosecution relies upon the testimony of PW 10
Mohd. Khan and the panchanama at Exhibit 25 to which he was
a witness in support of the recovery from accused no.2 and one
wrist watch and one gold ring. The prosecution claims that all
the recovered articles were brought to Mumbai along with the
arrested accused and at Andheri Police Station they were
unpacked in the presence of PW 15 – Rafiq Hanif Shaikh. The
said panchanama is at Exhibit 51.
5. Though the post mortem report at Exhibit 27-A and death
Certificate at Exhibit 35 was admitted by the defence, the
prosecution examined PW 11 Dr.Ramrao Kendre for two more
reasons viz. (a) to establish the condition of the dead body
when it was sent for post mortem and (b) to determine the time
of death. Dr.Kendre in his depositions stated that from the
decomposed condition of the body, the death could have
occurred approximately about 36 hours before the autopsy and
the cause of death was asphyxia with suffocation (unnatural).
He also pointed to the external and internal injuries recorded in
Column no.17 and column no.20, 20(a), 20(c) and 21 in the PM
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Report. The lower three teeth of the deceased were fractured
and dislocated and injury nos.(i) and (ii) in column no.17 were
in the nature of grievous injuries. Internal injuries mentioned in
column 20 indicated that injury no.1 in column 17 was deep
upto the ribs and the external injuries noted were as under
1. Incised wound oblique 2 ½ cm. below clavicle lateral
aspect. Size 5 cm x 1 ½ cm x ribs deep.
2. Incised wound over central part of neck, transverse
slightly oblique 3 cm x 1 cm
3. Abression on Rt. Cheek, lateral angle of mouth 1 x 0.8
cm.
4. Contused black coloured wound over lt. Cheek 2 x 1 ½
cm
5. Small scratches linear right side chin 2 cm Right side face
laterally near nose 2 cm. over right cheek 1 ½ cm.
6. Small scratches marks on right lateral of mandible 2 cm
and over the anterior triangle of neck four in numbers
submental area to neck 1 ½ cm, 1 cm, 2 cm.
7. Abression right side neck 3 ½ cm in length i.e. sratchings
mark. Black blue coloured.
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Injury nos.(iii) to (vii) of Column no.17, as per the doctor,
were developed while forcefully closing the mouth and the
deceased was resisting, as the injuries were of nail marks. He
disagreed with the suggestion in his cross-examination that if
the medical aid was provided to the deceased within a
reasonable period, there were chances to save his life. Exhibit
26 (the spot panchanama) recorded on 24/9/1999 describes the
condition of the dead body as well as the articles in the house.
It went to show that the house was ransacked. There is no
dispute that Vinodchandra died a homicidal death.
6. As per the defence the prosecution failed to connect the
accused with the homicidal death of Vinodchandra and the case
of the prosecution right from the stage of TI parade as well as
arrest of the accused and they have stayed at Akola etc. is
unreliable. Number of deficiencies were sought to be argued in
the process of TI parade conducted by PW 3 Alka Paralkar at
Exhibits 14 and 15. The learned counsel for the accused also
submitted that the identification of accused nos.1 to 3 as
allegedly made by PW 2, PW 5 and PW 6 during the TI parade
is unreliable and suffered from various deficiencies. It was
submitted that as per the prosecution accused nos.1 to 3 had
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visited the house of the deceased between 9.30 a.m. to 1.30
p.m. on 22/9/1999 and the dead body of the deceased was
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seen in the midnight of 23 September 1999 and in between
there could have been other visitors to the house of the
deceased which aspect was not examined by the prosecution.
It was further submitted that last seen theory of the
prosecution was unreliable in view of the time gap of more than
24 hours, pointing out that the brother of the deceased as well
as PW 1, son of the deceased had admittedly visited Vikas
Towers on 23/9/1999 before PW 1 approached the Andheri
Police Station. In support of these submissions it was also
pointed out that some of the close relations of the deceased
like Madhavi and others were also taken in custody and they
were released only after the TI parade was held on 18/11/1999.
7. We have gone through the depositions of PW 3 – SEO as
well as PW 2, PW 5 and PW 6. We have also perused the TI
parade memos at Exhibits 14 and 15. PW 3 has, in our opinion,
followed the due procedure laid down for conducting the TI
parade including selection of panch witnesses, dummies, hall
for taking the TI parade, separate halls for waiting of the
identifying witnesses before and after the TI parade and
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keeping the police away in the TI parade. For every accused,
the SEO had selected six dummies and of comparable age
group. It was submitted by Ms.Kaushik, the learned counsel for
the accused no.1 that SEO failed to have comparable dummies
for accused no.1 who looked like a male. In fact in the
evidence of PW 2, PW 5 and PW 6 it is noticed that some of
them have referred to accused no.1 as the male like looking
female. We had, therefore, directed the learned APP to ensure
that accused no.1 remained present before us and we had the
occasion to see her. There is no reason to disagree with the
description given to her by these witnesses and it was natural
for some of them to believe that she looked like a male. In the
evidence of PW 2, PW 5 and PW 6 it has been clearly
established that accused nos.1 to 3 reached Vikas Towers at
about 9 a.m. and they were first seen by PW 2 – Kawle who was
the watchman on duty. There was some interaction between
the watchman and these three accused because as per the
procedure followed in Vikas Towers, the visitors were required
to write their names in the Visitors’ register unless the host
concerned instructed the watchman to let them come in
without writing their names in the register. PW 2 stated in his
depositions before the trial Court that he had detained the
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accused and asked them to write their names in the register
but accused no.1 contacted the deceased on the intercom and
thereafter the deceased instructed PW 2 to let them in without
writing their names in the register. PW 5 was the liftman on
duty and he stated that on 22/9/1999 he had taken them to the
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10 floor by the lift and he was on his lunch hours after 12.30
p.m. He also stated that the lift would be unmanned between
12.30 to 1.30 p.m. and before he resumed his duty after lunch
hour, he had seen all the three accused coming down from the
lift and going out of the society. At that time, as per PW 2 as
well as PW 5, accused no.2 was carrying a suitcase and
accused nos.1 and 3 had their lady’s purse. So far as PW 6 is
concerned, she stated before the trial Court that she worked
not only with the deceased but some other flat owners in Vikas
Towers as well. She stated that on 22/9/1999 she went to the
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10 floor and was there upto 10-30 a.m. and thereafter she
th th
went to the 7 floor and thereafter to 4 floor. She also stated
that while she was in the house of the deceased between 9-30
to 10-30 a.m. on the date of the incident, she saw that the
accused were sitting with the deceased and they were talking
with each other. Deceased had asked her to prepare tea for the
accused and accordingly she prepared. At that stage it was
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accused no.3 who entered the kitchen and picked up the
prepared items for being served to the accused and the
deceased. Thus she remained in flat no.1001 for about one
hour and, therefore, had sufficient time to observe the accused.
All these three witnesses i.e. PW 2, PW 5 and PW 6 not only
identified accused nos.1 to 3 in the TI parade but even in their
substantial evidence before the trial Court each one of them
identified accused nos.1 to 3 by pointing finger. It was
submitted that accused nos.1 to 3 had visited, as per the
prosecution, Vikas Towers on 22/9/1999 and the TI parade was
held on 18/11/1999 i.e. after two months and, therefore, it was
unbelievable that the memory of these witnesses would be so
sharp as to identify the accused. We are not impressed by
these submissions and more so when accused no.1 had very
special features in her looks and with all the three witnesses
there was some communication of the three accused while they
entered Vikas Towers at about 9 a.m. and left the said place at
about 1.30 p.m. on the same day. The identification of these
three accused by PW 2, PW 5 and PW 6, in our opinion, has
rightly been found to be reliable by the trial Court.
8. At this stage it needs to be recorded that accused no.3
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has been, as stated across the bar, found to be a juvenile on
the date of the offence within the meaning of Section 2(k) of
the Juvenile Justice (Care and Protection of Children) Act, 2000
and, therefore, Ms. Kaushik did not press for her case in
Criminal Appeal No.385 of 2007. Criminal Appeal No.385 of
2007 therefore, does not survive so far as accused no.3 is
concerned. We are, therefore, required to consider these three
appeals for accused no.1, accused no.2 and accused no.4.
9. It is well settled that to prove the charge of conspiracy
under Section 120-A of IPC, there must be an agreement
between more than one persons to do one or other of the acts
described in the Section. The said agreement may be proved
by direct evidence or may be inferred from the acts and
conduct of the parties. There is no difference between mode of
proof of offence of conspiracy and that of any other offence. It
can be established by direct evidence or by circumstantial
evidence. However, Section 10 of the Evidence Act introduces
the doctrine of agency and if the conditions laid down therein
are satisfied, the act done by one is admissible against the
other conspirators. Once a conspiracy to commit an illegal act
is proved, the act of one conspirator becomes the act of the
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other. The conspiracy can be proved by proving different
circumstances and then putting them together. On the
touchstone of these legal propositions, we are required to
examine whether the prosecution has proved its case of
conspiracy to commit robbery and murder by all the accused or
by some of them. As noted earlier, the prosecution claims that
accused no.1 is the mastermind and accused nos.2 to 4 joined
her in the plan she masterminded and the conspiracy was at
the first instance hatched at Indore. It is the case of the
prosecution that in the second spell of conspiracy all the
accused on their journey from Indore to Mumbai had halted at
Akola for one night in the house of PW 4 who is the brother-in-
law of accused no.4. This relationship between PW 4 and
accused no.4 is not disputed. It is also not disputed that
accused nos.1, 3 and 4 are the residents of Indore whereas
accused no.2 is the resident of Halda in Madhya Pradesh. We
have considered the depositions of PW 4 as well as PW 19, PW
7 Ramesh Ghogre. PW 4 and PW 7 have turned hostile and,
therefore, the contents of the panchanam dated 27/11/1999
could not be proved though the signatures at Exhibits 20, 22
and 84 were admitted. PW 8 Santosh Rajankar who is one of
the panch witnesses for the very same panchanama also
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turned hostile. However, our attention was invited by Mrs.
Bhosale, the learned APP to the admission of PW 4 in his
examination in chief and before he was declared hostile by the
learned Special PP. He stated before the trial Court that on
27/11/1999 Police from Mumbai had enquired with him in
respect of the subject case and during the said enquiry his
statement was recorded. He further admitted that the police
had recorded his statement as stated by him and on the next
day the police had brought him to Mumbai. Mrs.Bhosale, the
learned APP, therefore, submitted that by the evidence of PW 4
the visit of PW 19 - Shri Indalkar to Akola during the course of
investigation on 27/11/1999 is proved and in his statement
recorded by PW 19, PW 4 had admitted that all the accused
(two males and two females) had stayed in his house at Akola
for one night two months prior to 27/11/1999. Even if these
submissions are accepted, it cannot be held that the
prosecution proved its case that all the accused had halted at
Akola for one night before they reached Mumbai on 22/9/1999.
The prosecution also did not bring any plausible evidence to
bring home its case that all the four accused after their halt at
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Akola travelled to Mumbai either on 21 September 1999 or
any proximate date thereto. Therefore, in our opinion, this
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second link of conspiracy viz. the visit to Akola and overnight
stay of the accused in the house of PW 4 is not proved beyond
doubt. We have also, with the help of the learned counsel for
the respective parties, tried to examine any acceptable
evidence to find out whether accused no.4 visited Mumbai
along with accused nos.1 to 3 either on 22/9/1999 or on the
earlier date and it is admitted by the prosecution that he was
not one of the visitors to Vikas Towers along with accused nos.1
to 3 on 22/9/1999. Even the recoveries allegedly made from
accused no.4 could not be proved by the prosecution and it
would be unsafe to accept the prosecution case in this regard
only on the basis of the evidence of PW 19. We do not find any
corroboration to the said evidence of PW 19 so as to uphold the
recovery allegedly made from accused no.4 on 7/11/1999 at
Indore (Dravidnagar). In our view the complicity of accused no.
4 in the alleged conspiracy by accused nos.1 to 3 in the
robbery in flat no.1001 of Vikas Towers and the murder of
Vinodchandra is not established beyond reasonable doubt.
10. So far as the recovery from accused no.2 is concerned,
Mr. Apte, the learned counsel for the said accused invited our
attention to the depositions of PW 10 – Mohammed Khan Guljar
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Khan and submitted that even as per the prosecution, the wrist
watch and gold ring were seen by this witness for the first time
outside the house of accused no.2 and, therefore, it cannot be
accepted that it was a recovery made from the house of
accused no.2 in the midnight on 6/11/1999. Mr. Apte also
submitted that the prosecution theory was unbelievable as
accused no.2 cannot be accepted to be walking on the streets
in the midnight i.e. 00.30 hours when he was allegedly
apprehended by the police at the instance of accused no.1
Mr.Apte, therefore, submitted that if the recovery from accused
no.2 is not established, an additional link in the chain of
circumstances of the prosecution case gets broken. We have
considered these submissions and we have noted that PW 10
was not a hostile witness. It has come in his evidence and the
panchanam at Exhibit 25 proved by him that the house of
accused no.2 admeasured 10 ft. x 10 ft. and it did not have
electricity. The police party itself consisted of more than four
and if the police party had entered the house of the accused in
the midnight along with him, it is possible that PW 10 preferred
to wait outside the house and the recovery made from the
house of accused no.2 was shown to the said witness outside
the house of the said accused. This by itself cannot lead to the
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inference straightway that the recovery could not be proved, in
the peculiar facts of this case.
11. PW 17 who was also declared hostile, stated before the
trial Court that she knew the deceased since July 1990 and they
had met each other in one marriage bureau. The deceased was
dealing in fabrication business and his office was located at
Mahakali Caves at Andheri (East). She was appointed by the
deceased as Office Manager in his establishment and that is
how she got acquainted with him and subsequently she moved
to stay with him. She further stated that the family members
of the deceased were not residing with him and they were
staying at E/302 Ayojan Nagar, Liberty Cross Road, Malad
(West). She also knew Nitin, the brother of the deceased and
his wife Madhavi who were staying at Bhayander. As per her,
the deceased was supporting the education of Nitin’s children
and Nitin and Madhavi often used to visit the house of the
deceased at Vikas Towers. She stated that prior to September
1999 in her presence Madhavi had visited the deceased at
Vikas Towers and had lunch. She used to visit the house of the
deceased with her children and her husband used to come in
the evening. Somewhere in 1995 one Manisha @ Sanju Chavan
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24
(accused no.1) had visited the flat of the deceased and at that
time another gentleman had accompanied the accused no.1.
She did not remember the name of the gentleman but it was
something like Pappu Yadav and they were sent by Madhavi
Solanki and there was some problem with Nitin. While in the
witness box she pointed towards the accused no.1 and stated
that the said accused looked like the lady who had visited the
flat of Vinodchandra and she was unable to identify the
gentleman to whom she had referred to as Pappu Yadav. She
was declared hostile at a later stage. She stated that there was
some dispute between Dilip Solanki and the deceased about
the business and Dilip Solanki was dejected on that count. She
further admitted that she had a quarrel with Dilip Solanki as he
was jealous about her relationship with the deceased and he
was misbehaving with her. She also stated that Dilip Solanki
had beaten her on 30/4/1991. She also admitted that she was
residing with the deceased till about July 1999. She stated that
the deceased had visited her on 21/9/1999 at about 2 p.m. and
again on 22/9/1999 at about 4 p.m. But such a statement did
not find place in her statement recorded by the police. She
also admitted in her cross-examination that during the stay of
Madhavi in Vikas Towers in the flat of the deceased, accused
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25
no.1 used to visit her and she further admitted that on
22/9/1999 she had gone to Gujrath in regard to her income tax
matter along with one Bhupendra Dave.
12. PW 2 stated in his evidence before the trial Court that
accused no.1 had talked to the deceased on intercom in
Gujarathi language from the main gate of Vikas Towers on
22/9/1999 and when the accused left the building, he did not
record the time. PW 1 – Jignesh, the son of the deceased stated
before the trial Court that his last talk with his father was at
about 4 p.m. on 21/9/1999. On 23/9/1999 at about 9 a.m. his
uncle Dilip Solanki contacted him. From the uncle he came to
know that on 22/9/1999 at about 10 p.m. the uncle did not see
the lights of the flat occupied by the deceased and PW 1 tried
to contact his father between 11 to 11-30 a.m. on 23/9/1999
but there was no response on the phone. He, therefore, called
his uncle at the factory who told him that uncle had visited
Vikas Towers and seen the scooter of the deceased in the
parking lot. The uncle also told him that nobody opened the
door of the flat of the deceased when Dilip along with his friend
Vimal had visited the said place on 23/9/1999. The uncle also
told him that he had made enquiry with the watchman who
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26
informed that the deceased was seen on 21/9/1999 at about
5.30 p.m. going out of the building and that he had returned at
about 7.45 p.m. PW 1, therefore, along with Dilip, and friend
Vimal had gone to the flat of Renuka PW 17 and it was found
locked. He came back to the factory at Mahakali Caves Road at
about 7.30 p.m. and then went to Vikas Towers, made enquiry
with the night duty watchman who informed him that he had
not seen his father after 7.45 p.m. on 21/9/1999. In the night
again he went to Vikas Towers along with his uncle and friend
and contacted the Secretary and Chairman. All of them went to
Andheri Police Station and with the help of the police, flat was
broke opened in the midnight. On 13/11/1999 he was called to
the police station and some sealed packets were opened in his
presence. He found two wrist watches, one yellow metal chain
and two yellow metal rings. He identified these articles as
those belonging to his father. When PW 2 and PW 5 were in the
witness box no effort was made by the defence to find out
whether any outsider, other than PW 1 had in fact visited the
flat of the deceased between 1.30 p.m. on 22/9/1999 till it was
broke opened in the midnight on 23/9/1999 by the police and,
therefore, the trial Court was justified in holding that the
prosecution proved the last seen theory i.e. the accused nos. 1
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27
to 3 were the last visitors to the house of the deceased on
22/9/1999 and till the house was broke opened in the midnight
on 23/9/1999. At the same time from the evidence of PW 17 –
Renuka and PW 2 – Chandrakant Kawale the prosecution
established that accused no.1 knew the deceased and she used
to talk to the accused in Gujarathi language. The accused nos.
1 to 3 entered Vikas Towers at about 9 a.m. and after the
telephonic clearance was given by the deceased, they entered
th
his flat on the 10 floor. When PW 6 – Rahima entered the
house of the accused for doing her work as a maid servant, the
accused were present and they continued to be there after she
had left at 10.30 a.m. on 22/9/1999 from the house of the
deceased. The accused were seen last by PW 2 and PW 5 while
going out of Vikas Towers at about 1.30 p.m. on 22/9/1999 and
thereafter a courier delivery boy had gone to deliver a letter on
th
10 floor but returned and informed PW 2 that the deceased
did not open his house despite his pressing the bell and the
mail was left with the said witness. The prosecution evidence,
therefore, goes to show that from 1.30 p.m. on 22/9/1999 till
the house was broke opened in the midnight of 23/9/1999, no
one had entered the house of the deceased though PW 1 and
his uncle Dilip along with other two three persons had visited
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28
Vikas Towers to try to find out the whereabouts of the deceased
and there was no response from his house. The learned Judge
of the trial Court, therefore, considered the panchanama at
Exhibit 26 and recorded a finding about robbery and homicidal
death of Vinodchandra Solanki. The trial Court on accepting
the evidence of PW 2, PW 3, PW 5 and PW 6 held that the
accused were present in the flat of the deceased between 9
a.m. to 1.30 p.m. on 22/9/1999 and accepted the theory of last
seen of accused nos.1 to 3 in the said flat. The accused died a
homicidal death and it was not accidental or suicidal as per the
evidence of PW 11 Dr. Kendre. These circumstances duly
support the case of the prosecution that it is accused nos.1 to 3
who caused the death of Vinodchandra Solanki in his flat i.e.
th
Flat No.1001 located on 10 floor of Vikas Towers on 22/9/1999
and committed robbery in the said house before leaving Vikas
Towers at about 1.30 p.m. The way accused nos.1 to 3 entered
initially Vikas Towers and subsequently the house of the
deceased and as has been brought on record through the
evidence of PW 2, PW 5 and PW 6, it is clear that there was
earlier meeting of minds between the accused and they had
entered Vikas Towers with a specific intention. It was a pre-
planned visit and with a specific objective. Even if it is not
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29
established whether this meeting of mind between the accused
was Indore or Mumbai, it is clear that when they entered Vikas
Towers at about 9 a.m. on 22/9/1999, there was an agreement
between them to commit illegal acts in the house of the
deceased. Thus the chain of circumstances as placed before
the trial Court and leading to the homicidal death of
Vinodchandra Solanki was rightly accepted by the Trial Court so
far as accused nos.1 to 3 are concerned and we have already
held that the prosecution could not prove the complicity of
accused no.4 beyond reasonable doubt in the incident. We are,
therefore, not inclined to accept the finding of the trial Court
that accused no.4 was also a party to the conspiracy hatched
between accused nos.1 to 3 and which conspiracy resulted into
further crimes of robbery and murder of Vinodchnadra Solnaki.
In our opinion, it would be unsafe to hold the accused no.4 as a
party in any manner to the plan hatched by accused nos.1 to 3
in the incident and he deserves to be released on benefit of
doubt.
13. Ms.Kaushik, the learned counsel for the accused no.1
urged before us that in the peculiar facts of this case the
conviction and sentence of accused nos.1 and 2 be accepted
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30
only for the offence punishable under Section 394 of IPC
instead of the offence punishable under Section 302 read with
Section 34 or 120-B of IPC. We have given our anxious
considerations to the said submissions and we are not inclined
to accept the same and, therefore, we uphold the order of
sentence passed by the learned Addl. Sessions Judge against
accused nos.1 and 2 on all counts.
14. In the premises, we confirm the order of conviction and
sentence recorded by the learned Addl.Sessions Judge at
Mumbai in Sessions Case No.239 of 2000 as against accused
no.1 – Manisha @ Sanju Lalji Chavan and accused no. 2 –
Satyanarayan @ Raju Sunderlal Jangare and dismiss Criminal
Appeal No.385 of 2007 and Criminal Appeal No.350 of 2003.
The substantive sentences to run concurrently. Undoubtedly,
accused nos.1 and 2 shall be entitled for set off under Section
428 of Cr.P.C.
We allow Criminal Appeal No.1129 of 2002 and set aside
the order of conviction and sentence recorded by the learned
Addl. Sessions Judge in Sessions Case No.239 of 2000 against
the said accused i.e. accused no.4 – Ashok Hiralal yadav. He
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31
stands acquitted from all the charges. His bail bonds stand
cancelled.
15. Mr.Apte was appointed as the Defence Advocate in
Criminal Appeal No.350 of 2003 and his professional fees is
quantified at Rs.3000/-. The Legal Services Authority to pay
the said fees to Mr.Apte.
(SMT.ROSHAN S. DALVI,J.) (B.H.MARLAPALLE,J.)
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srk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Appellate Side
Criminal Appeal No.1129 of 2002
Ashok Hiralal Yadav Appellant
(Org. Accused no.4)
Vs.
The State of Maharashtra Respondent
With
Criminal Appeal No.350 of 2003
Satyanarayan @ Raju Sunderlal Jangare Appellant
(Org.Acused no.2)
Vs.
The State of Maharashtra Respondent
With
Criminal Appeal No.385 of 2007
1. Manisha @ Sanju Lalji Chavan
2. Pooja @ Pappi Ramesh Yadav Appellants
(Org.Accused Nos.1
and 3)
Vs.
The State of Maharashtra Respondent
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2
Mr.D.G.Khamkar for appellant in Cri.Appeal No.1129 of 2002.
Mr.Abhaykumar Apte, Advocate appointed for appellant in Cri.
Appeal No.350 of 2003.
Ms.Sharmila Kaushik for appellants in Cri. Appeal No.385 of
2007.
Mrs.V.R.Bhosale, APP for State.
CORAM: B.H.MARLAPALLE & SMT.ROSHAN S. DALVI,JJ.
August 24 & 25, 2009.
ORAL JUDGMENT (PER B.H.MARLAPALLE,J.)
1. All these appeals arise from the order of conviction and
th th
sentence dated 18 and 20 February 2002 passed by the
learned Addl. Sessions Judge, Greater Mumbai in Sessions Case
No.239 of 2000. Appeal No.1129 of 2002 has been filed by
Ashok Hiralal Yadav - original accused no.4 whereas Appeal No.
350 of 2003 has been filed by the original accused no.2
Satyanarayan @ Raju Sunderlal Jangare and Criminal Appeal
No.385 of 2007 has been filed by accused no.1 Manisha @
Sanju Lalji Chavan and accused no.3 Pooja @ Pappi Ramesh
Yadav. Accused nos.1, 3 and 4 are the residents of Indore
whereas accused no.2 is the resident of Halda, Madhya
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3
Pradesh. They have been convicted and sentenced for the
offences punishable under Section 120-B, Section 449 read with
Section 120-B, Section 302 read with Section 120-B and Section
394 read with Section 120-B of IPC and the highest sentence
awarded is life imprisonment under Section 302 read with
Section 120-B of IPC.
2. As per the prosecution case Vinodchandra Solanki aged
about 55 to 60 years was residing in Flat No.1001, Vikas
Towers, New Amboli Crossing, Andheri (East), Mumbai. Though
he was a married man and had a son by name Jignesh – PW 1,
he was staying away from the family from the year 1989
onwards and PW 17 Smt. Renuka Rameshchandra Modi started
staying with him from the year 1990. Initially they were staying
at Panchsheel Apartment and in the year 1995 Vinodchandra
th
Solanki shifted to Flat No.1001, Vikas Towers, 10 floor.
However, sometimes in the year 1997 PW 17 Renuka left his
company and started staying at J.B. Nagar in her own house.
But, they used to meet each other from time to time. On
23/9/1999 PW 18 - Madhukar Nikam, PW 19 – Bhimrao Indalkar
and PW 20 - Jaywant Sarmokadam were the police officers on
duty at the Andheri Police Station and at about 11.30 p.m. PW 1
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4
– Jignesh, the son of Vinodchandra Solanki went to the Andheri
Police Station along with three other persons and informed the
officers on duty that his father who was residing in Flat No.1001
of Vikas Tower Building did not open the flat door and it was
latched from inside. He further stated that despite his knocking
on the door for sometime, none opened the door and some
pungent smell was coming from inside the flat. Police Officers
team, therefore, accompanied the complainant and went to Flat
No.1001 of Vikas Towers. They tried to press the bell so that
somebody from within would open the door but there was no
response and, therefore, the Chairman and Secretary of the
Society were called and in their presence the flat door was
broken open. After entering into the flat it was noticed that a
dead body was lying in the bedroom which was identified by
PW 1 – Jignesh as that of his father. The clothes on the body
were stained with blood and one cloth was found gagged in the
mouth of the deceased. On phone running CR number was
called and it was recorded as CR No.393 of 1999 against
unknown persons on recording complaint (Exhibit 10) of PW 1.
Two panch witnesses were called in the flat and the Inquest
panchanama at Exhibit 26 was drawn and the dead body was
sent to Cooper Hospital for post mortem along with PC Buckle
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5
No.9684 and PC Buckle No.1935. On 24/9/1999 the post
mortem was conducted and report was received at Exhibit 27-
A. Statements of Chandrakant Kawle PW 2, Tilambekar
watchman / liftman PW 5, and Rahima Begum Mohd.
Hassanuddin - PW 6 who was working as the maid servant for
the deceased were recorded. Some articles lying at the spot
were also recovered and brought to the police station and blood
sample was also drawn at about 5.15 a.m. on 24/9/1999. On
the basis of the complaint at Exhibit 10, C.R. No. 393 of 1999
was registered with the police station for the offence
punishable under Section 302 read with Section 394 of IPC
against unknown persons. During the course of investigation
API Pathan arrested one female accused by name Sanju @
Manisha Chavan (accused no.1) from Indore on 27/10/1999, in
connection with C.R.No.393/1999 and she was brought to the
rd
Andheri Police Station. During her interrogation on 3
November 1999 she made voluntary statement which was
recorded at Exhibit 44 and she had shown her willingness to
accompany the police team to Indore. PW 19 along with other
th
police personnel left for Indore in the early hours of 6
November 1999 and reached Halda at about 11.30 p.m. by
road. At the instance of accused no.1, the police team with the
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6
help of the Halda Police Station personnel took accused non.2
in custody at about 00.30 hours, recovered some articles
belonging to the deceased from the house of accused no.2 and
recovery panchanama at Exhibit 25 was drawn for which PW 10
Shri Mohammed Khan Guljar Khan was the panch witness.
Thereafter the police team of Andheri Police Station left for
Indore by road and reached at about 9 a.m. on 7/11/2009 along
with accused nos.1 and 2. They went to Chatripura Police
Station at Indore and requested for police constables to be
provided. They proceeded for Sai Baba Mandir Road and at the
instance of accused no.1, accused no.3 was apprehended near
Nidhi Apartment. Accused no.3 showed her willingness to make
a statement which was recorded in the presence of two
witnesses (Exhibit 73) and some articles were recovered at her
instance. Then the police team proceeded towards Dravid
Nagar area of Indore city and apprehended accused no.4 at the
instance of accused no.1 He had also shown his willingness to
make voluntary statement which was reduced in writing in the
presence of Shri Sanjay Jain PW 14 and Shri Madan Astol. Some
articles in addition to Rs.5000/- were claimed to have been
recovered from a jewellery shop belonging to Vishnuprasad
Jaiswal. As per the police they also recovered a knife concealed
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7
in the backyard of accused no.4 (Exhibit 77). With all the
accused in their custody, the police team returned to Mumbai
th
i.e. Andheri Police Station on 8 November 1999 at about 10
th
a.m. by road. Test Identification parade was held on 18
November 1999 by Smt. Alka Paralkar – PW 3 and SEO, wherein
PW 2 – Chandrakant Kawle, PW 5 – Sitaram Tilambekar and PW
6 - Rahima Begum Mohd. Hassanuddin participated and
identified all the four accused as per the memorandum of
identification at Exhibits 14 and 15. During the course of
further investigation PW 20 deputed PW 19 to visit Akola on
27/11/1999. He interrogated PW 4 Shri Nilkanth Kore and his
brother as well as father. It is the case of the prosecution that
this witness had admitted about the visit of all the four accused
to his house and overnight stay prior to the date of the offence.
His statement was recorded at Exhibit 86 and he was asked to
visit Mumbai and as per the same he visited Andheri Police
rd
Station on 29/11/1999. In the mean while on 3 November
1999 the clothes of the deceased were sent for CA and CA
report was received at Exhibit 29. On completion of
th
investigation, charge-sheet was filed on 25 January 2000
th
(Exhibit 96) before the 10 Court of Metropolitan Magistrate at
th
Andheri. Committal order was passed on 16 February 2000
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8
under Section 209 of Cr.P.C. and the charge was framed on
18/12/2001.
3. As per the prosecution the deceased Vinodchandra
Solanki was running a business along with his brother Dilip
Solanki and he also had another brother by name Nitin Solanki.
Dilip was staying with his wife Sudha and Nitin was staying with
his wife Madhavi in their own homes. Accused no.1 was staying
as a paying guest for some time with Nitin and Madhavi Solanki
and, therefore, she was known to the deceased. It is further
claimed that accused no.1 while staying as paying guest with
Madhavi, had also visited the house of the deceased on some
occasions and thus was known to the deceased. After accused
no.1 left Mumbai, she went back to her native place Indore and
she was also aware that PW 17 Renuka Modi had stopped
staying with the deceased and, therefore, she hatched a
conspiracy at Indore involving the other three accused so as to
rob and murder the deceased. As part of this conspiracy, all
the four accused left from Indore, halted at Akola overnight in
the house of PW 4, the brother-in-law of accused no.4 and on
the next day they proceeded to Mumbai. Accused no.4
remained at the railway station in Mumbai and accused nos.1
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9
to 3 came to Vikas Towers around 9 a.m. on 22/9/1999. The
watchman on duty PW 2 – Chandrakant Kawale did not allow
the accused nos.1 to 3 to go to the house of the deceased i.e.
th
Flat No.1001 on 10 floor and hence accused no.1 contacted
the deceased on intercom. After some time the watchman, on
the instructions of the deceased, allowed all the three accused
to go to the flat of the deceased and PW 5 Tilambekar was the
th
watchman-cum-liftman who reached the accused to the 10
floor. The accused entered the flat of the deceased and at
about 9.30 a.m. PW 6 Rahimabi, maid servant reported for her
work. At the instructions of the deceased, PW 6 prepared tea
for the accused and the lady guests entered the kitchen and
carried the tea to be served to all the accused. PW 6 left the
house of the deceased around 10.30 a.m. on 22/9/1999. The
accused came down from the flat of the deceased at about 1.30
p.m. and this was seen by PW 2 as well as PW 5. While going
to the flat as well as returning from the flat of the deceased,
accused no.2 was carrying a suitcase and accused nos.1 and 3
had their lady’s purse. Around 2 p.m. on 22/9/1999 a courier
boy entered Vikas Towers and he came down to the watchman
– PW 5 and stated that he wanted to deliver a letter addressed
to the deceased but there was no response to open the flat
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10
despite his multiple attempts to press the bell and, therefore,
the said mail was received by PW 5. It was only on the next
day i.e. on 23/9/1999 when PW 1 along with three or four
persons came to visit the house of the deceased, he did not get
any response and, therefore, went to Andheri Police Station.
4. The case of the prosecution is based entirely on
circumstantial evidence and in the process the prosecution
examined twenty witnesses. The statements of the accused
under Section 313 of Cr.P.C. were recorded in which they denied
their involvement in the crime and did not examine any
witnesses in defence. However, in their respective statements
recorded under Section 313 of Cr.P.C., the accused no.1
admitted that she was arrested at Indore on 27/10/1999 and
that she was staying as a paying guest with Madhavi Solanki for
some time. Other accused also admitted about their arrest at
Halda and Indore, as the case may be. The prosecution also
claimed that on the arrest of the accused, certain recoveries
were made. It was claimed that the knife was recovered from
accused no.4 and gold chain and Wrist watches along with
Government Currency notes of Rs.100/- (50 notes) were also
recovered from the accused. In support of these recoveries the
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11
prosecution examined PW 12 – Deepak Jain, PW 14 – Sanjay
Jain, PW 7 – Ramesh Ghogare and all these witnesses turned
hostile. The prosecution relies upon the testimony of PW 10
Mohd. Khan and the panchanama at Exhibit 25 to which he was
a witness in support of the recovery from accused no.2 and one
wrist watch and one gold ring. The prosecution claims that all
the recovered articles were brought to Mumbai along with the
arrested accused and at Andheri Police Station they were
unpacked in the presence of PW 15 – Rafiq Hanif Shaikh. The
said panchanama is at Exhibit 51.
5. Though the post mortem report at Exhibit 27-A and death
Certificate at Exhibit 35 was admitted by the defence, the
prosecution examined PW 11 Dr.Ramrao Kendre for two more
reasons viz. (a) to establish the condition of the dead body
when it was sent for post mortem and (b) to determine the time
of death. Dr.Kendre in his depositions stated that from the
decomposed condition of the body, the death could have
occurred approximately about 36 hours before the autopsy and
the cause of death was asphyxia with suffocation (unnatural).
He also pointed to the external and internal injuries recorded in
Column no.17 and column no.20, 20(a), 20(c) and 21 in the PM
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12
Report. The lower three teeth of the deceased were fractured
and dislocated and injury nos.(i) and (ii) in column no.17 were
in the nature of grievous injuries. Internal injuries mentioned in
column 20 indicated that injury no.1 in column 17 was deep
upto the ribs and the external injuries noted were as under
1. Incised wound oblique 2 ½ cm. below clavicle lateral
aspect. Size 5 cm x 1 ½ cm x ribs deep.
2. Incised wound over central part of neck, transverse
slightly oblique 3 cm x 1 cm
3. Abression on Rt. Cheek, lateral angle of mouth 1 x 0.8
cm.
4. Contused black coloured wound over lt. Cheek 2 x 1 ½
cm
5. Small scratches linear right side chin 2 cm Right side face
laterally near nose 2 cm. over right cheek 1 ½ cm.
6. Small scratches marks on right lateral of mandible 2 cm
and over the anterior triangle of neck four in numbers
submental area to neck 1 ½ cm, 1 cm, 2 cm.
7. Abression right side neck 3 ½ cm in length i.e. sratchings
mark. Black blue coloured.
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13
Injury nos.(iii) to (vii) of Column no.17, as per the doctor,
were developed while forcefully closing the mouth and the
deceased was resisting, as the injuries were of nail marks. He
disagreed with the suggestion in his cross-examination that if
the medical aid was provided to the deceased within a
reasonable period, there were chances to save his life. Exhibit
26 (the spot panchanama) recorded on 24/9/1999 describes the
condition of the dead body as well as the articles in the house.
It went to show that the house was ransacked. There is no
dispute that Vinodchandra died a homicidal death.
6. As per the defence the prosecution failed to connect the
accused with the homicidal death of Vinodchandra and the case
of the prosecution right from the stage of TI parade as well as
arrest of the accused and they have stayed at Akola etc. is
unreliable. Number of deficiencies were sought to be argued in
the process of TI parade conducted by PW 3 Alka Paralkar at
Exhibits 14 and 15. The learned counsel for the accused also
submitted that the identification of accused nos.1 to 3 as
allegedly made by PW 2, PW 5 and PW 6 during the TI parade
is unreliable and suffered from various deficiencies. It was
submitted that as per the prosecution accused nos.1 to 3 had
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14
visited the house of the deceased between 9.30 a.m. to 1.30
p.m. on 22/9/1999 and the dead body of the deceased was
rd
seen in the midnight of 23 September 1999 and in between
there could have been other visitors to the house of the
deceased which aspect was not examined by the prosecution.
It was further submitted that last seen theory of the
prosecution was unreliable in view of the time gap of more than
24 hours, pointing out that the brother of the deceased as well
as PW 1, son of the deceased had admittedly visited Vikas
Towers on 23/9/1999 before PW 1 approached the Andheri
Police Station. In support of these submissions it was also
pointed out that some of the close relations of the deceased
like Madhavi and others were also taken in custody and they
were released only after the TI parade was held on 18/11/1999.
7. We have gone through the depositions of PW 3 – SEO as
well as PW 2, PW 5 and PW 6. We have also perused the TI
parade memos at Exhibits 14 and 15. PW 3 has, in our opinion,
followed the due procedure laid down for conducting the TI
parade including selection of panch witnesses, dummies, hall
for taking the TI parade, separate halls for waiting of the
identifying witnesses before and after the TI parade and
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15
keeping the police away in the TI parade. For every accused,
the SEO had selected six dummies and of comparable age
group. It was submitted by Ms.Kaushik, the learned counsel for
the accused no.1 that SEO failed to have comparable dummies
for accused no.1 who looked like a male. In fact in the
evidence of PW 2, PW 5 and PW 6 it is noticed that some of
them have referred to accused no.1 as the male like looking
female. We had, therefore, directed the learned APP to ensure
that accused no.1 remained present before us and we had the
occasion to see her. There is no reason to disagree with the
description given to her by these witnesses and it was natural
for some of them to believe that she looked like a male. In the
evidence of PW 2, PW 5 and PW 6 it has been clearly
established that accused nos.1 to 3 reached Vikas Towers at
about 9 a.m. and they were first seen by PW 2 – Kawle who was
the watchman on duty. There was some interaction between
the watchman and these three accused because as per the
procedure followed in Vikas Towers, the visitors were required
to write their names in the Visitors’ register unless the host
concerned instructed the watchman to let them come in
without writing their names in the register. PW 2 stated in his
depositions before the trial Court that he had detained the
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accused and asked them to write their names in the register
but accused no.1 contacted the deceased on the intercom and
thereafter the deceased instructed PW 2 to let them in without
writing their names in the register. PW 5 was the liftman on
duty and he stated that on 22/9/1999 he had taken them to the
th
10 floor by the lift and he was on his lunch hours after 12.30
p.m. He also stated that the lift would be unmanned between
12.30 to 1.30 p.m. and before he resumed his duty after lunch
hour, he had seen all the three accused coming down from the
lift and going out of the society. At that time, as per PW 2 as
well as PW 5, accused no.2 was carrying a suitcase and
accused nos.1 and 3 had their lady’s purse. So far as PW 6 is
concerned, she stated before the trial Court that she worked
not only with the deceased but some other flat owners in Vikas
Towers as well. She stated that on 22/9/1999 she went to the
th
10 floor and was there upto 10-30 a.m. and thereafter she
th th
went to the 7 floor and thereafter to 4 floor. She also stated
that while she was in the house of the deceased between 9-30
to 10-30 a.m. on the date of the incident, she saw that the
accused were sitting with the deceased and they were talking
with each other. Deceased had asked her to prepare tea for the
accused and accordingly she prepared. At that stage it was
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17
accused no.3 who entered the kitchen and picked up the
prepared items for being served to the accused and the
deceased. Thus she remained in flat no.1001 for about one
hour and, therefore, had sufficient time to observe the accused.
All these three witnesses i.e. PW 2, PW 5 and PW 6 not only
identified accused nos.1 to 3 in the TI parade but even in their
substantial evidence before the trial Court each one of them
identified accused nos.1 to 3 by pointing finger. It was
submitted that accused nos.1 to 3 had visited, as per the
prosecution, Vikas Towers on 22/9/1999 and the TI parade was
held on 18/11/1999 i.e. after two months and, therefore, it was
unbelievable that the memory of these witnesses would be so
sharp as to identify the accused. We are not impressed by
these submissions and more so when accused no.1 had very
special features in her looks and with all the three witnesses
there was some communication of the three accused while they
entered Vikas Towers at about 9 a.m. and left the said place at
about 1.30 p.m. on the same day. The identification of these
three accused by PW 2, PW 5 and PW 6, in our opinion, has
rightly been found to be reliable by the trial Court.
8. At this stage it needs to be recorded that accused no.3
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18
has been, as stated across the bar, found to be a juvenile on
the date of the offence within the meaning of Section 2(k) of
the Juvenile Justice (Care and Protection of Children) Act, 2000
and, therefore, Ms. Kaushik did not press for her case in
Criminal Appeal No.385 of 2007. Criminal Appeal No.385 of
2007 therefore, does not survive so far as accused no.3 is
concerned. We are, therefore, required to consider these three
appeals for accused no.1, accused no.2 and accused no.4.
9. It is well settled that to prove the charge of conspiracy
under Section 120-A of IPC, there must be an agreement
between more than one persons to do one or other of the acts
described in the Section. The said agreement may be proved
by direct evidence or may be inferred from the acts and
conduct of the parties. There is no difference between mode of
proof of offence of conspiracy and that of any other offence. It
can be established by direct evidence or by circumstantial
evidence. However, Section 10 of the Evidence Act introduces
the doctrine of agency and if the conditions laid down therein
are satisfied, the act done by one is admissible against the
other conspirators. Once a conspiracy to commit an illegal act
is proved, the act of one conspirator becomes the act of the
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19
other. The conspiracy can be proved by proving different
circumstances and then putting them together. On the
touchstone of these legal propositions, we are required to
examine whether the prosecution has proved its case of
conspiracy to commit robbery and murder by all the accused or
by some of them. As noted earlier, the prosecution claims that
accused no.1 is the mastermind and accused nos.2 to 4 joined
her in the plan she masterminded and the conspiracy was at
the first instance hatched at Indore. It is the case of the
prosecution that in the second spell of conspiracy all the
accused on their journey from Indore to Mumbai had halted at
Akola for one night in the house of PW 4 who is the brother-in-
law of accused no.4. This relationship between PW 4 and
accused no.4 is not disputed. It is also not disputed that
accused nos.1, 3 and 4 are the residents of Indore whereas
accused no.2 is the resident of Halda in Madhya Pradesh. We
have considered the depositions of PW 4 as well as PW 19, PW
7 Ramesh Ghogre. PW 4 and PW 7 have turned hostile and,
therefore, the contents of the panchanam dated 27/11/1999
could not be proved though the signatures at Exhibits 20, 22
and 84 were admitted. PW 8 Santosh Rajankar who is one of
the panch witnesses for the very same panchanama also
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20
turned hostile. However, our attention was invited by Mrs.
Bhosale, the learned APP to the admission of PW 4 in his
examination in chief and before he was declared hostile by the
learned Special PP. He stated before the trial Court that on
27/11/1999 Police from Mumbai had enquired with him in
respect of the subject case and during the said enquiry his
statement was recorded. He further admitted that the police
had recorded his statement as stated by him and on the next
day the police had brought him to Mumbai. Mrs.Bhosale, the
learned APP, therefore, submitted that by the evidence of PW 4
the visit of PW 19 - Shri Indalkar to Akola during the course of
investigation on 27/11/1999 is proved and in his statement
recorded by PW 19, PW 4 had admitted that all the accused
(two males and two females) had stayed in his house at Akola
for one night two months prior to 27/11/1999. Even if these
submissions are accepted, it cannot be held that the
prosecution proved its case that all the accused had halted at
Akola for one night before they reached Mumbai on 22/9/1999.
The prosecution also did not bring any plausible evidence to
bring home its case that all the four accused after their halt at
st
Akola travelled to Mumbai either on 21 September 1999 or
any proximate date thereto. Therefore, in our opinion, this
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21
second link of conspiracy viz. the visit to Akola and overnight
stay of the accused in the house of PW 4 is not proved beyond
doubt. We have also, with the help of the learned counsel for
the respective parties, tried to examine any acceptable
evidence to find out whether accused no.4 visited Mumbai
along with accused nos.1 to 3 either on 22/9/1999 or on the
earlier date and it is admitted by the prosecution that he was
not one of the visitors to Vikas Towers along with accused nos.1
to 3 on 22/9/1999. Even the recoveries allegedly made from
accused no.4 could not be proved by the prosecution and it
would be unsafe to accept the prosecution case in this regard
only on the basis of the evidence of PW 19. We do not find any
corroboration to the said evidence of PW 19 so as to uphold the
recovery allegedly made from accused no.4 on 7/11/1999 at
Indore (Dravidnagar). In our view the complicity of accused no.
4 in the alleged conspiracy by accused nos.1 to 3 in the
robbery in flat no.1001 of Vikas Towers and the murder of
Vinodchandra is not established beyond reasonable doubt.
10. So far as the recovery from accused no.2 is concerned,
Mr. Apte, the learned counsel for the said accused invited our
attention to the depositions of PW 10 – Mohammed Khan Guljar
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22
Khan and submitted that even as per the prosecution, the wrist
watch and gold ring were seen by this witness for the first time
outside the house of accused no.2 and, therefore, it cannot be
accepted that it was a recovery made from the house of
accused no.2 in the midnight on 6/11/1999. Mr. Apte also
submitted that the prosecution theory was unbelievable as
accused no.2 cannot be accepted to be walking on the streets
in the midnight i.e. 00.30 hours when he was allegedly
apprehended by the police at the instance of accused no.1
Mr.Apte, therefore, submitted that if the recovery from accused
no.2 is not established, an additional link in the chain of
circumstances of the prosecution case gets broken. We have
considered these submissions and we have noted that PW 10
was not a hostile witness. It has come in his evidence and the
panchanam at Exhibit 25 proved by him that the house of
accused no.2 admeasured 10 ft. x 10 ft. and it did not have
electricity. The police party itself consisted of more than four
and if the police party had entered the house of the accused in
the midnight along with him, it is possible that PW 10 preferred
to wait outside the house and the recovery made from the
house of accused no.2 was shown to the said witness outside
the house of the said accused. This by itself cannot lead to the
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23
inference straightway that the recovery could not be proved, in
the peculiar facts of this case.
11. PW 17 who was also declared hostile, stated before the
trial Court that she knew the deceased since July 1990 and they
had met each other in one marriage bureau. The deceased was
dealing in fabrication business and his office was located at
Mahakali Caves at Andheri (East). She was appointed by the
deceased as Office Manager in his establishment and that is
how she got acquainted with him and subsequently she moved
to stay with him. She further stated that the family members
of the deceased were not residing with him and they were
staying at E/302 Ayojan Nagar, Liberty Cross Road, Malad
(West). She also knew Nitin, the brother of the deceased and
his wife Madhavi who were staying at Bhayander. As per her,
the deceased was supporting the education of Nitin’s children
and Nitin and Madhavi often used to visit the house of the
deceased at Vikas Towers. She stated that prior to September
1999 in her presence Madhavi had visited the deceased at
Vikas Towers and had lunch. She used to visit the house of the
deceased with her children and her husband used to come in
the evening. Somewhere in 1995 one Manisha @ Sanju Chavan
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24
(accused no.1) had visited the flat of the deceased and at that
time another gentleman had accompanied the accused no.1.
She did not remember the name of the gentleman but it was
something like Pappu Yadav and they were sent by Madhavi
Solanki and there was some problem with Nitin. While in the
witness box she pointed towards the accused no.1 and stated
that the said accused looked like the lady who had visited the
flat of Vinodchandra and she was unable to identify the
gentleman to whom she had referred to as Pappu Yadav. She
was declared hostile at a later stage. She stated that there was
some dispute between Dilip Solanki and the deceased about
the business and Dilip Solanki was dejected on that count. She
further admitted that she had a quarrel with Dilip Solanki as he
was jealous about her relationship with the deceased and he
was misbehaving with her. She also stated that Dilip Solanki
had beaten her on 30/4/1991. She also admitted that she was
residing with the deceased till about July 1999. She stated that
the deceased had visited her on 21/9/1999 at about 2 p.m. and
again on 22/9/1999 at about 4 p.m. But such a statement did
not find place in her statement recorded by the police. She
also admitted in her cross-examination that during the stay of
Madhavi in Vikas Towers in the flat of the deceased, accused
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25
no.1 used to visit her and she further admitted that on
22/9/1999 she had gone to Gujrath in regard to her income tax
matter along with one Bhupendra Dave.
12. PW 2 stated in his evidence before the trial Court that
accused no.1 had talked to the deceased on intercom in
Gujarathi language from the main gate of Vikas Towers on
22/9/1999 and when the accused left the building, he did not
record the time. PW 1 – Jignesh, the son of the deceased stated
before the trial Court that his last talk with his father was at
about 4 p.m. on 21/9/1999. On 23/9/1999 at about 9 a.m. his
uncle Dilip Solanki contacted him. From the uncle he came to
know that on 22/9/1999 at about 10 p.m. the uncle did not see
the lights of the flat occupied by the deceased and PW 1 tried
to contact his father between 11 to 11-30 a.m. on 23/9/1999
but there was no response on the phone. He, therefore, called
his uncle at the factory who told him that uncle had visited
Vikas Towers and seen the scooter of the deceased in the
parking lot. The uncle also told him that nobody opened the
door of the flat of the deceased when Dilip along with his friend
Vimal had visited the said place on 23/9/1999. The uncle also
told him that he had made enquiry with the watchman who
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26
informed that the deceased was seen on 21/9/1999 at about
5.30 p.m. going out of the building and that he had returned at
about 7.45 p.m. PW 1, therefore, along with Dilip, and friend
Vimal had gone to the flat of Renuka PW 17 and it was found
locked. He came back to the factory at Mahakali Caves Road at
about 7.30 p.m. and then went to Vikas Towers, made enquiry
with the night duty watchman who informed him that he had
not seen his father after 7.45 p.m. on 21/9/1999. In the night
again he went to Vikas Towers along with his uncle and friend
and contacted the Secretary and Chairman. All of them went to
Andheri Police Station and with the help of the police, flat was
broke opened in the midnight. On 13/11/1999 he was called to
the police station and some sealed packets were opened in his
presence. He found two wrist watches, one yellow metal chain
and two yellow metal rings. He identified these articles as
those belonging to his father. When PW 2 and PW 5 were in the
witness box no effort was made by the defence to find out
whether any outsider, other than PW 1 had in fact visited the
flat of the deceased between 1.30 p.m. on 22/9/1999 till it was
broke opened in the midnight on 23/9/1999 by the police and,
therefore, the trial Court was justified in holding that the
prosecution proved the last seen theory i.e. the accused nos. 1
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27
to 3 were the last visitors to the house of the deceased on
22/9/1999 and till the house was broke opened in the midnight
on 23/9/1999. At the same time from the evidence of PW 17 –
Renuka and PW 2 – Chandrakant Kawale the prosecution
established that accused no.1 knew the deceased and she used
to talk to the accused in Gujarathi language. The accused nos.
1 to 3 entered Vikas Towers at about 9 a.m. and after the
telephonic clearance was given by the deceased, they entered
th
his flat on the 10 floor. When PW 6 – Rahima entered the
house of the accused for doing her work as a maid servant, the
accused were present and they continued to be there after she
had left at 10.30 a.m. on 22/9/1999 from the house of the
deceased. The accused were seen last by PW 2 and PW 5 while
going out of Vikas Towers at about 1.30 p.m. on 22/9/1999 and
thereafter a courier delivery boy had gone to deliver a letter on
th
10 floor but returned and informed PW 2 that the deceased
did not open his house despite his pressing the bell and the
mail was left with the said witness. The prosecution evidence,
therefore, goes to show that from 1.30 p.m. on 22/9/1999 till
the house was broke opened in the midnight of 23/9/1999, no
one had entered the house of the deceased though PW 1 and
his uncle Dilip along with other two three persons had visited
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Vikas Towers to try to find out the whereabouts of the deceased
and there was no response from his house. The learned Judge
of the trial Court, therefore, considered the panchanama at
Exhibit 26 and recorded a finding about robbery and homicidal
death of Vinodchandra Solanki. The trial Court on accepting
the evidence of PW 2, PW 3, PW 5 and PW 6 held that the
accused were present in the flat of the deceased between 9
a.m. to 1.30 p.m. on 22/9/1999 and accepted the theory of last
seen of accused nos.1 to 3 in the said flat. The accused died a
homicidal death and it was not accidental or suicidal as per the
evidence of PW 11 Dr. Kendre. These circumstances duly
support the case of the prosecution that it is accused nos.1 to 3
who caused the death of Vinodchandra Solanki in his flat i.e.
th
Flat No.1001 located on 10 floor of Vikas Towers on 22/9/1999
and committed robbery in the said house before leaving Vikas
Towers at about 1.30 p.m. The way accused nos.1 to 3 entered
initially Vikas Towers and subsequently the house of the
deceased and as has been brought on record through the
evidence of PW 2, PW 5 and PW 6, it is clear that there was
earlier meeting of minds between the accused and they had
entered Vikas Towers with a specific intention. It was a pre-
planned visit and with a specific objective. Even if it is not
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29
established whether this meeting of mind between the accused
was Indore or Mumbai, it is clear that when they entered Vikas
Towers at about 9 a.m. on 22/9/1999, there was an agreement
between them to commit illegal acts in the house of the
deceased. Thus the chain of circumstances as placed before
the trial Court and leading to the homicidal death of
Vinodchandra Solanki was rightly accepted by the Trial Court so
far as accused nos.1 to 3 are concerned and we have already
held that the prosecution could not prove the complicity of
accused no.4 beyond reasonable doubt in the incident. We are,
therefore, not inclined to accept the finding of the trial Court
that accused no.4 was also a party to the conspiracy hatched
between accused nos.1 to 3 and which conspiracy resulted into
further crimes of robbery and murder of Vinodchnadra Solnaki.
In our opinion, it would be unsafe to hold the accused no.4 as a
party in any manner to the plan hatched by accused nos.1 to 3
in the incident and he deserves to be released on benefit of
doubt.
13. Ms.Kaushik, the learned counsel for the accused no.1
urged before us that in the peculiar facts of this case the
conviction and sentence of accused nos.1 and 2 be accepted
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30
only for the offence punishable under Section 394 of IPC
instead of the offence punishable under Section 302 read with
Section 34 or 120-B of IPC. We have given our anxious
considerations to the said submissions and we are not inclined
to accept the same and, therefore, we uphold the order of
sentence passed by the learned Addl. Sessions Judge against
accused nos.1 and 2 on all counts.
14. In the premises, we confirm the order of conviction and
sentence recorded by the learned Addl.Sessions Judge at
Mumbai in Sessions Case No.239 of 2000 as against accused
no.1 – Manisha @ Sanju Lalji Chavan and accused no. 2 –
Satyanarayan @ Raju Sunderlal Jangare and dismiss Criminal
Appeal No.385 of 2007 and Criminal Appeal No.350 of 2003.
The substantive sentences to run concurrently. Undoubtedly,
accused nos.1 and 2 shall be entitled for set off under Section
428 of Cr.P.C.
We allow Criminal Appeal No.1129 of 2002 and set aside
the order of conviction and sentence recorded by the learned
Addl. Sessions Judge in Sessions Case No.239 of 2000 against
the said accused i.e. accused no.4 – Ashok Hiralal yadav. He
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31
stands acquitted from all the charges. His bail bonds stand
cancelled.
15. Mr.Apte was appointed as the Defence Advocate in
Criminal Appeal No.350 of 2003 and his professional fees is
quantified at Rs.3000/-. The Legal Services Authority to pay
the said fees to Mr.Apte.
(SMT.ROSHAN S. DALVI,J.) (B.H.MARLAPALLE,J.)
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