Pappu Kalani Inder Bhatija Murder Case Judgement

1 1 Sessions Case No.218/1999

Presented on : 27.12.1999Registered on : 27.12.1999Decided on : 29.11.2013Duration : 12Y. 11M. 2D.

In the Court of AdHoc Addl. Sessions Judge, Kalyan

(Presided over by Rajeshwari Bapat Sarkar)

Sessions Case no. 218/1999

Ex.

Complainant: State of Maharashtra,(Through Vitthalwadi Police Station)

V/s.

Accused: 1] Shri Pappu @ Suresh Budharmal Kalani,Age : 50 yrs,Residing at Kalani Mahal, Khemani,Ulhasnagar – 2.

2] Dr. Narendra Hemandas Ramsingani,Age: 48 years, Residing at Seema Apartment, VIII Floor,Khemani, Ulhasnagar – 2.

3] Mohammad Arshad Mohammad Taaher ShaikhAge: 32 years, R/at: Maharashtra Housing Society,Chawl No. 126, Room No. 1013,Marve Road, Malad,Mumbai 95.

5] Richard Robert Fernandes @ Satish Suvarna,Age: 37 years,R/at: Ghatkopar, Mumbai.

6] Bachhi @ Ramchandra Sitalaprasad Pande,

2 Sessions Case No.218/1999

Age: 42 years, R/at: Andheri, Mumbai.

7] Gabriel @ Baba Hana Moben,Age: 41 years,R/at: Andheri, Mumbai.

Appearances : Ld. Spl. P. P. Shri Vikas B. Patil for the State.Ld. Adv. H. L. Bhatia & B. Jeswani for accd no.1Ld. Adv. Smt. Shaikh for accused no. 2Ld. Adv. Shri Pasbola for accused nos.3, 5 to 7.

Offenses : P/u/ss. 120(b), 109 r/w 302, 450, 353,

307, 506(II) r/w.34 IPC & u/s. 27(2) Arms Act.

JUDGMENT(Delivered on this 29th day of November, 2013)

1/ Accused nos. 1 and 2 are charged with offenses punishable

under sections 120(b) of IPC and Section 109 r/w 302 of IPC.

Accused nos. 3 to 7 are charged for having allegedly committed

offenses punishable under sections 302, 450, 506(2), 353, 307

r/w. 34 of IPC and under section 27(2) of Arms Act.

2/ Prosecution case as emerges from the FIR and other police

papers is as follows :

i] Complainant PC Ghanshyam Vijaykumar Bendre, B.No.

1115 was assigned as body guard to deceased Inder Sunderdas

Bhatija from 17.03.1990. His duty hours were 8.00 a.m. to 8.00

p.m. He used to take entry at the register in the Vitthalwadi

Police Station while reporting on duty and also while going off

duty. He used to carry 410 musket butt no. 362 and 30 rounds


with him while on duty.

ii] Complainant PC Bendre was assigned to the deceased Inder

as body guard in response to his application expressing

apprehension of threat to his life on account of previous enmity

between accused no. 1 Pappu Kalani, Himmat Kalani and his

supporters. His brother Ghanshyamdas had already been

murdered by accused no.1 Pappu Kalani, Himmat Kalani and

others.

iii] On 28.04.1990 complainant reported on duty at 8.15 a.m.

as usual. After taking entry at Vitthalwadi Police Station, he

reported on duty at the residence of deceased Inder in Camp No.

3, O.T, along with his musket and rounds for the same and

relieved the night duty guard PC. Darade at about 8.45 a.m. from

there, he escorted deceased Inder to his burner factory at about

9.50 a.m in his Maruti Car No. MH05/A6867. After parking the

car, deceased Inder went inside the factory office while the

complainant stood guard just outside the same. He was joined by

the watchman Shivbahadur Ramdhiraj Shukla.

iv] At about 12.15 p.m. one biscuit coloured Maruti Car came

from the direction of Hotel Pinto and stopped in front of the

office. Four persons alighted from the same. Two of them

approached the watchman Shivbahadur Ramdhiraj Shukla and

the complainant. They suddenly removed the revolvers from their

pockets and threatened threatened them not to move or make any

noise failing which, they threatened the complainant and the

watchman Shukla that they would shoot them. They also directed

complainant and watchman Shukla to look in front, failing which

they would shoot. Complainant tried loading the musket.


However, the assailant who was pointing a revolver at the

watchman snatched the musket from the complainant’s hand and

flung it on the office roof.

v] In the mean while, the two remaining assailants had also

entered the office of deceased Inder. The watchman tried to run

away and enter from the side entrance to his office to warn Inder.

However, just then, they heard a sound of firing and also saw the

two assailants who had gone into the office rushing out. The two

assailants who had threatened the complainant and watchman

joined them and all four of them made good their escape in the

biscuit coloured Maruti Car towards the direction of Camp No.3.

The complainant observed that the car number was BLL5647.

vi] Complainant then rushed back to the office of Inder and

found that he was lying in a pool of blood between the table and

the chair on the floor. He was bleeding from his head.

Complainant tried to bring him out to take him to hospital, but,

he could not succeed, therefore, he went to seek help. By that

time, a mob had gathered outside the office. 34 persons from

the factory came there and with their help, complainant picked up

deceased Inder and brought him out of the office. Just then, one

Mohan Bahirani, maternal uncle of the deceased, came there in a

Maruti Car. Deceased Inder was placed inside the van and taken

to Central Hospital. Complainant, in the mean while, tried to call

Vitthalwadi Police Station, but to no avail. He then told a young

boy to get the musket from the roof of the office. After taking the

same into custody, he went to the Central Hospital where Inder

was undergoing treatment. All his attempts to make a telephone

call to Vitthalwadi Police Station failed. Hence, the complainant


then went to the Police Station and lodged the complaint Ex.270.

Offense was registered as C.R.No. I89/1990.

3/ The investigation was handed over to PI Vilas Shripadrao

Jadhav. He deputed PSI Harihar for recording statement of the

injured Inder Bhatija who was admitted at the relevant time at

Sion Hospital. He also directed PSI Deshmukh to draw spot

panchanama, who in turn went to the spot and recorded the

same. PSI Deshmukh also attached articles from the spot namely

two pieces of tiles out of which one was stained with blood, one

pair of slippers stained with blood, one pair of spectacles and

three used cartridges and one live cartridge under spot

panchanama Ex.275. In the meanwhile information was received

through PI Bhere that injured had succumbed to his injuries in the

hospital. Investigation Officer Shri Jadhav also recorded

statements of witnesses including that of eye witness PW 13

Vijaybahadur Shukla. He also obtained copy of complaint given

by deceased Inder on 29.4.1999 and placed it on record. ASI

Popat Shivaji Kale in the meanwhile collected clothing of

deceased Inder Bhatija which was attached under panchanama

Ex.304. PSI Vitthal Vishwanath Harihar also recorded inquest

panchanama Ex.307. Subsequently, the offense was transferred to

Punjabi Colony Police Station.

ii/ DCP Subhash Bhalchandra Phadke subsequently took over

investigation. Initially chargesheet was forwarded to the

designated TADA Court, Pune as accused were chargesheeted

under sections 3, 18 of TADA Act. In the said chargesheet


accused nos.1 to 3 namely Pappu alias Suresh Kalani, Dr.

Narendra Hemandas Ramsinghani and Mohammad Arshad

Mohammad Taaher Shaikh were arraigned, however accused nos.

4 to 7 were shown absconding.

iii/ Subsequently accused Richard Robert Fernandes was

arrested in a case of Sahakarnagar Police Station, Pune on

3.4.1994. Therefore, DCP Phadke obtained his custody. His

confessional statement under provisions of TADA was recorded

and supplementary chargesheet was sent up Ex.309.

iv/ On 03.12.1999 accused Bacchi Pande alias Ramchandra

Shitalaprasad Pande was arrested in another offense by the Delhi

Police. Once again DCP Phadke obtained custody of this accused

also. Confessional statement of this accused was also recorded

under provisions of TADA. DCP Phadke also sent a requisition

letter for conducting identification parade of said accused. After

completion of the same, another supplementary chargesheet was

sent up against him Ex. 310.

v/ PW26 Shri Shivdas Bajrang Tagtode took over the

investigation from 5.12.1992. He seized the chair from the spot of

offense under panchanama Ex. 276 and also attached the clothing

of the deceased. After taking over investigation, he noticed that

there is mention of C.R.No. 159/1991 against accused Bacchi

Pande, Baba Gabriel and others registered at Khar Police Station

in which some TADA Sections had been applied. In the said case

both these accused had given confession in respect of commission

of present offense before the competent authorities. Shri Tagtode

thereafter recorded statements of various witnesses including

Ramesh Thavardas Chetwani, Kamal Bhatija, Shitaldas


Harchandani, Vijaybahadur Ramdhiraj Shukla, Seema

Ramsinghani, Vasudeo Belani, Hiralal Ambwani, Inderlal

Ramsinghani, Chander Uttamchand Dalwani, Ashok Dhanraj

Sukhwani, Dhanraj Sukhwani, Tukaram Tardalkar, Mohan

Gangaram Rajale and Balu Kakade. He also issued a letter to the

concerned PI of Khar Police Station for handing over weapons and

other articles seized in CR no. 159/91 as well as the

accompanying documents like seizure panchanama, confession

etc. He then obtained custody of accused Mohammad Arshad

Taher Shaikh. It was disclosed from the statements of witnesses

and other documents that the accused nos. 1 Pappu @ Suresh

Kalani & 2 Dr. Ramsinghani were the masterminds and had

hatched a conspiracy to murder the victim Inder Bhatija. Hence,

he arrested accused no. 1 Suresh @ Pappu Budharmal Kalani and

Mohammad Arshad Taher Shaikh. Thereafter, he called the main

complainant PW4 Ghanshyam Bendre and Vijaybahadur Shukla

and showed them photo albums of sharp shooters from which

they identified accused Bacchi Pande and Baba Gabriel and also

accused Mohammad Arshad Taher who was already in custody.

Their supplementary statements were also recorded accordingly.

He also recorded statement of PW Sunderdas Bhatija Ex. 410,

widow Rekha Bhatija and other family members. He also

collected copies of NC and other cases registered against various

accused. He then dispatched seized articles for chemical analysis.

Thereafter, while in custody accused Mohammad Taher expressed

willingness to confess. Therefore, he was sent to Magisterial

Custody. Supplementary chargesheet was then sent up against

the arrested accused.


4/ After chargesheet came to be filed in special designated

TADA Court under sections 3 and 18 of TADA Act. Accused

however moved an applications for discharge under sections 3 &

18 of TADA Act which were allowed by the designated TADA

Court. Therefore, the matter was transferred to this Court.

5/ My Ld. Predecessor Shri R.D. Tayade has framed charge

below Ex.105 against accused nos. 1 to 7. Accused pleaded not

guilty and claimed to be tried. Their defense as emerges from the

tenor of cross examination and statement u/s 313 Cr.PC is that of

total denial. According to the accused they have been falsely

implicated in the present case. I heard Ld. Special Prosecutor

Vikas Patil, Ld. Advocate Shri Bhatia for accused no. 1, Ld.

Advocate Smt. Shaikh for accused no.2, Ld. Advocate Shri Pasbola

for accused nos. 3 and 5 to 7. Ld. Special PP Shri Patil has

submitted written notes of argument Ex.558 in addition to oral

submissions made by him and I heard the other respective

Counsels at length.

6/ Against this backdrop, the following points arise for my

determination. My findings thereon are recorded herein below

for reasons that follow :

Points :

1] Whether prosecution proves that the death of deceased

Inder Bhatija was homicidal ?

2] Whether prosecution proves that accused nos. 1 and 2 on or

about 28.04.1990, in the house of accused no.1 Kalani Mahal,

Khemani, Ulhasnagar and in the house of accused no. 2 at Seema


Apartments, VIII Floor, Khemani, Ulhasnagar, in order to avenge

the murder of Dulichand Kalani, uncle of accused no.1 and to

avenge insult of Hemantdas Ramsinghani, the father of accused

no.2, agreed with accused nos. 3 to 7 and absconding accused

Dinesh Pujari to do or cause to be done an illegal act, to wit.

commit murder of Inder Sundardas Bhatija and thereby

committed an offense punishable under section 120(B) of IPC ?

3] Whether prosecution proves that accused nos. 3,4,5,6 and 7

and absconding accused Dinesh Pujari on 28th day of April, 1990,

at about 12.15 p.m. at the office of Inder Bhatija situate at O.T.

Section3, Ulhasnagar, committed the offense of murder of Inder

Sundardas Bhatija and that accused nos. 1 & 2 named above, at

their house at Kalani Mahal, Khemani, Ulhasnagar and Seema

Apartments, VIII Floor, Khemani, Ulhasnagar, respectively abetted

the said accused nos. 3,4,5,6 & 7 and absconding accused Dinesh

Pujari in the commission of the said offense of murder by

providing weapons, vehicles and money and which offense was

committed in consequence or as a result of the said abetment and

accused have thereby committed an offense punishable under

section 109 r/w. Section 302 of IPC ?

4] Whether prosecution proves that accused nos. 3 to 7 along

with absconding accused Dinesh Pujari on 28.04.1990, at the

office of Inder Bhatija at O.T. Section 3, Ulhasnagar, committed

house trespass by entering into or unlawfully remaining in the

building/office of Inder Bhatija, used as a human dwelling or for

custody of property with intention to commit the offense

punishable with imprisonment for life, to wit, murder of Inder

Sundardas Bhatija and thereby committed an offense punishable


under section 450 r/w. Section 34 of IPC ?


with absconding accused Dinesh Pujari, on the aforesaid date,

time and place, during the course of the same transaction and in

furtherance of their common intention, committed criminal

intimidation by threatening the complainant Ghanshyam

Vijaykumar Bendre, Police Constable, B.No. 1115, a public servant

and prosecution witness Shivbahadur Ramdhiraj Shukla with

revolvers with injury to their person with intent to cause alarm to

them and thereby committed offense punishable under section

506(II) r/w. Section 34 of IPC ?


with absconding accused Dinesh Pujari, on the aforesaid date,

time and place, during the course of same transaction and in

furtherance of their common intention, assaulted and used

criminal force to the complainant Ghanshyam Bendre, P.C. B.No.

1115, a public servant, who was then posted as security guard for

protection of deceased Inder Sundardas Bhatija, in the discharge

of his duty as such public servant by snatching his rifle and

throwing the same on the ceiling of the room with intent to

prevent or deter the said public servant Ghanshyam Bendre from

discharging his duty as such public servant and thereby

committed an offense punishable under section 353 r/w. Section

34 of IPC ?

7] Whether prosecution proves that accused nos. 3 Mohd.

Arshad Mohd. Taher and accused no. 7 Gabrial @ Baba Hans

Moben on the aforesaid date, time and place, during the course of

same transaction and in furtherance of their common intention,


along with accused nos. 4, 5 & 6 and absconding accused Dinesh

Pujari, entered into the office of Inder Sundardas Bhatija and did

commit murder of Inder Sundardas Bhatija by intentionally and

knowingly causing his death by firing at him from their revolvers

and thereby committed an offense punishable under section 302

r/w. Section 34 of IPC ?

8] Whether prosecution proves that accused no. 3 on the

aforesaid date, time and place, during the course of same

transaction, amongst accused no. 3, did an act, to wit fired at the

prosecution witness Shivbahadur Ramdhiraj Shukla in

furtherance of common intention or knowledge along with

accused nos 4, 5 & 6 and absconding accused Dinesh Pujari,

under such circumstances that if by that act accused had caused

the death of the said prosecution witness Shivbahadur Ramdhiraj

Shukla, accused would have been guilty of murder and thereby

committed an offense punishable under section 307 r/w. Section

34 of IPC ?

9] Whether prosecution proves that accused nos. 3 & 7 on the

aforesaid date, time and place, during the course of same

transaction, used deadly weapons i.e. revolvers and did commit

murder of Inder Bhatija and also fired at the prosecution witness

Shivbahadur Ramdhiraj Shukla and thereby committed an offense

punishable under section 27(2) of the Arms Act ?

10] What order ?

Findings :

1] In the affirmative.

2] In the affirmative against accused no. 1 only.

3] In the negative.


4] In the affirmative as against accused nos. 3, 6 and 7 only.




8] In the negative.


10] As per final order.

Reasons :

7/ As to Point No. 1:

In order to prove that the death of deceased Inder Bhatija

was homicidal, prosecution has relied on testimony of PW22 Dr.

Rajesh Chandrakant Dere below Ex.369 and the Postmortem

Report produced by him along with the original record in respect

of original Postmortems maintained by the Sion Hospital. Same is

tallied from original and found correct. Dr. Dere is presently

attached to Sion Hospital as Sr. Lecturer, Deptt of Forensic

medicine and Toxicology. As such, the PM notes are produced

from proper custody. He stated that out of the doctors who

conducted postmortem, one Dr. Fatnani who supervised the same

has since expired, remaining two attending doctors are not

traceable despite diligent search. This witness has also produced

the original record of P.M. Reports pertaining to the year 1990

bearing Nos. M300 to M400. True copy of the P.M. Report of

deceased Inder Bhatija running into six pages is filed on record at

Article 'A'. It also depicts the various spots on the body of the

deceased Inder where there were fire arm and other injuries in

the form of a sketch attached to the P.M. Notes. Same is tallied


from the original produced in Court by this witness. In cross

examination there is no serious challenge to this record.

8/ It appears from the record that this P.M. Report has not

been marked as exhibit though it is not challenged by the

accused. The same is tallied from the original record produced in

Court, therefore, it is produced from proper custody and by the

doctor presently attached to Sion Hospital. Therefore, I see no

impediment in marking it as exhibit even at this stage. Hence,

same is marked Ex. 584. All in all, therefore, there is absolutely

no impediment in reading this document into evidence in the

given circumstances.

9/ Having so held, a bare perusal of the Postmortem report

shows (1) Entry wounds on the left tempo parietal region

admeasuring 1/2 cm dia; (2) Proptoses left eye; (3) Puncture

wound with surrounding staining left supra scapular region 1/4

cm dia; (4) Puncture wound right lumbar region over lateral

border of paraspinal muscles 1/4 cm dia; (5) Puncture wound

right chest post axillary line 1/4 cm dia in 9th ICS; (6) Puncture

wound right arm lat. aspect 1/4 cm with surrounding staining;

(7) Puncture wound right forearm lat. aspect; (8) Ecchy mosis +

under left shoulder 6 cm dia; (9) Puncture wound doisal aspect

right thumb near base 1/4 cm with staining; (10) Puncture

wound radial aspect right thumb; (11) Puncture wound base of

right index finger, radial aspect; (12) Puncture wound volar

aspect right index finger near PIP joint; (13) Puncture wound

radial aspect right index finger near DIP joint; (14) CLW right


thigh ant. aspect in supra condylar region 3 cm X 1/4 cm with

bullet palpable laterally, surrounding staining +; (15) CLW left

middle finger 1 cm X 1/4 cm middle finger radial aspect; (16)

Puncture wound volar aspect left thumb with surrounding

staining with loss of nail.

10/ The postmortem report also shows following autopsy

findings :

[1] Bullet injury, occipital region 3 cm to the left of

midline, measuring 1 X 0.8 cm; [2] Bullet injury, left

suprascapular region 3.5 cm from midline. Wound of entry with

collar of abrasion oval, towards the midline, measuring 1 cm X

0.5 cm with brusing 10 X 4 ½ cm with bullet wound towards the

inner aspect of bruise; [3] Punctured wound (slit) on the back,

right side, 15 cm from midline, 1 cm dimension with posterior

wall abraded and sliced front edge of the wound inverted. Bruise

4 X 4 cm around the wound. This is the entry wound of wound

no. 4 (a firearm injury); [4] Firearm injury, exit wound of no.(3)

right lumbar region 6 cm away from midline and measuring 1 ½

cm X 1 cm. Skin is split at lower border and margins are everted.

Faint bruising is seen around, measuring 5 X 4 cm. Distance

between no.(3) and wound no.(4) is 18 cm; [5] Firearm injury,

entry wound over right forearm (outer aspect) lying 5 ½ cm

below elbow joint and measuring 1/2 cm with collar of abrasion

measuring 1/2 cm on either side. Faint bruising measuring 5 X 6

cm beginning from the wound and extending upwards at the

elbow; [6] Firearm injury corresponding wound of exit to wound

no.(5) seen on post aspect of right arm 6 cm above the olecranon


process, measuring 1 X 2 X 0.8 cm with surrounding bruise

measuring 5 X 3 cm; [7] Firearm injury, entry wound at base of

right thumb 1/2 cm dia with a collar of abrasion of 0.2 cm

surrounding the wound; [8] Exit wound corresponding to injury

at no.(7) 1/2 cm dia, lacerated and everted edges loping 2 cm

away from wound of entry; [9] Firearm injury, entry wound at

base of right index finger (dorsaradial aspect) measuring 1 X 0.7

cm with collar of abrasion of 0.4 cm situated towards the knuckle;

[10] Corresponding exit wound to no.(9) at the 1st inter

phhalangeal joint, vertically placed measuring 1.4 X 0.4 cm and

placed 4 cm away from wound of entry; [11] Lacerated crescentic

wound on dorso radial aspect of right index finger at terminal

interphalangeal joint with convexity towards the nail and

measuring 1 X 0.50 flap evulsing towards the nuckle; [12]

Firearm injury, entry wound in nailbed of left thumb at the base

of the nail on radial aspect measuring 0.6 X 0.4 cm (with loss of

nail plate); [13] Firearm injury corresponding exit wound to no.

(12) on volar aspect of left thumb, 1 X 0.5 cm with edges everted

and bruised all along the phalynx; [14] Firearm injury, entry

wound at base of the nail, left middle finger (inner aspect) 0.3

cm; [15] Firearm injury, corresponding exit wound to no.(14) on

volar aspect of same finger 1.5 X 1 cm edges everted and bruised

all along around the phalynx; [16] Lacerated wound 3 cm X 0.6

cm dying 4 cm above right knee cap, horizontally placed with 0.5

cm abrasion around the inner and upper edge, depth of wound –

7 cm towards outer aspect; [17] Proptoses of left eye, left eyeball

protruding with massive swelling of both eyelids with

subconjunctural haemorrhage all around the eye; [18] Ecchymose


on left arm above post axillary fold, measuring 6 X 4 cm bullet

lodged beneath in subcutaneous tissue; [19] Therapeutic injuries

– 2 venesection marks on both legs (one on each) above the

medial malleolus, clean incised wounds, 2 cm each, left wound

sutured, 1 venesection mark over left cubital fossa, 2 cm –

sutured.

11/ Examination of skull reveal that on reflecting the scalp,

haematoma lying beneath the scalp corresponding to external

injury no.(1). Corresponding to the same is a wound in the skull

(occipital bone) measuring 1.8 X 0.8 cm, outer table of bone

chipped off by 1 cm.; Subarachnoid haemorrhage ++, more

marked over left tempow parietal region. On removing brain and

dura, seen in ant. wall of left temporal fossa are bone chips

dupion into the left eye ball, the defect measuring 2 X 1.5 cm.

12/ Similarly, systematic examination in brain reveals

subarachnoid haemorrhage ++, more marked over left tempow

parietal region, extending over cerebellum. On c/s: laceration of

left occipital lobe of the brain. Bullet track is seen going through

occipital and temporal lobe and entering the left orbit through

ant. wall of left temporal fossa carrying the bone chips along with

it. Bullet recovered was lodged in the left orbit. Lungs also were

partially collapsed. The P.M. Report mentions cause of death as

shock following fire arm injury.

13/ As far as inquest panchnama Ex. 307 is concerned, the

prosecution has examined PW1 Ramesh Arjunrao Bhinge below


Ex.263. He is arrayed as inquest panch. However, he has resiled

from the prosecution case. In his crossexamination, the only fact

admitted by him is that he has seen the body of deceased with

blood stains on pant and shirt. He also admitted having seen

blood oozing from the forehead of deceased Inder. He denied

having counted 16 injuries as mentioned in the inquest

panchanama. He has claimed ignorance about the contents of the

same. However, what clearly emerges is that the police had

recorded inquest panchanama after showing this witness the dead

body of deceased Inder and that the same had injuries on the

same. The PW 16 Vithal Harihar has also deposed on this point.

He has identified the signatures of panchas and his own on the

inquest panchnama and also deposed about the correctness of the

same. As such, from the testimony of both PW 1 & 16 read

together, I am inclined to hold that the inquest panchnama is duly

proved and there is no impediment in reading the same in

evidence.

14/ Thus, the nature and extent of injuries as clear from the

postmortem report, which incidentally is not seriously

challenged, clearly shows that the death was of homicidal nature.

It is nobody's case that the deceased had committed suicide or

that he met with an accidental death nor is there any such

suggestion even. In the circumstances, I see no impediment in

answering Point no.1 in the affirmative.

15/ At this juncture, it would be pertinent to note that the

prosecution case is that the accused nos. 3 to 7 committed murder


of deceased Inder Bhatija at the behest of accused nos. 1 & 2 on

account of political rivalry. In other words, it is alleged that the

accused nos. 1 & 2 are the masterminds whereas accused nos. 3

to 7 were the assassins. Hence, accused nos. 1 & 2 are charged

only with the offense punishable u/s 120B IPC as well as section

109 r/w 302 IPC, as against accused nos. 3 to 7, who are alleged

to have committed the offenses of murder, house trespass,

criminal intimidation, obstruction of police officer in his duty,

attempt to commit murder. As such, I feel it would be expedient

to bifurcate the prosecution case as against accused nos. 1 & 2 on

one hand and that against accused nos. 3 to 7 on the other.

16/ Apart from this, it would also be worthwhile to note the

background circumstances of the present case. PW 12 Sunderdas

Bhatija and PW 26A Kamal Bhatija, the father and brother of

deceased Inder Bhatija respectively, PW 27 Shivkumar Saraswat

and PW 29 Jamil Ahmed Juber Khan have deposed on this point.

17/ PW12 Sundarlal, the father of deceased Inder has been

examined below Ex. 286. His testimony throws light on the

antecedents of the present case and the relationship interse

between parties. He has stated the entire background

circumstances of the present case. He stated that, he had first

migrated to India after partition between India and Pakistan and

had stayed in the Haridwar, Uttaranchal for sometime. He shifted

to Ulhasnagar in 1951 and started a unit for manufacture of

socks. He was also member of the Municipal Council from 1978

to 19921995. He further deposed that in 1986 Pappu Kalani


became a member of the Ulhasnagar Municipal Council and

thereafter, was elected as President. He remained President of

Ulhasnagar Municipal Council till he became MLA in 1990 as a

Congress candidate. In the said election one Shital Das was the

rival BJP candidate. Admittedly, son of this witness Ghanshyam

was murdered on the voting day of the said election. Said

deceased Ghanshyam and PW 12 were at different booths. After

hearing of a quarrel between his son Ghanshyam and two other

persons, he went to the spot. He further deposed that the uncle

of accused No.1 Dunichand was also murdered earlier. There was

a belief that the two brothersinlaw of this witness viz – Gop

Behrani and Mohan Behrani had used the vehicle of deceased

Inder in the said incident. Deceased victim in the present case

Inder was murdered about two months after murder of his first

son Ghanshyam. Till this point, testimony of this witness is more

or less unchallenged. Admittedly, the accused no. 1 is a close

relative of the deceased victim Inder as well as his family i.e PW

12 Sunderdas & 26A Kamal.

18/ The evidence of PW 26A Kamal Bhatija is also along

similar lines. He has also stated the backdrop of the present

incident. In addition, he has spoken about certain incidents that

occurred before and after the murder of his other brother

Ghanshyamdas. The case arising out of the murder of

Ghanshyamdas bearing Sessions Case no. 219/99 is also pending

and has been stayed by the Hon'ble Supreme Court. He stated

that there were rival factions within the Congress within

Ulhasnagar. Due to dispute arising out of the Presidentship of the


UMC, there was an agreement to share the same for 2 ½ years

each between the accused no. 1 and the uncle of deceased Inder,

one Gop Behrani. PW 12 Sunderlal, his father, was a supporter of

Gop Behrani. Initially, he also supported accused no. 1. However,

subsequently, the relations between them as well as deceased

Ghanshyamdas and Inder were strained. At the end of his tenure

of 2 ½ years, the accused no. 1 refused to vacate the office, which

created a further rift in the two factions or groups. In the next

election, accused no. 1 had accosted the deceased Ghanshyamdas

on the voting day itself and threatened him. On the very same

day, he was murdered outside his own Hotel Pinto Park in front of

his other brother Inder. Within two months of this incident, the

said Inder was also murdered as he was the First Informant and

the eye witness in the case arising out of murder of his brother

Ghanshyamdas. Hence, there is a bitter rivalry between the

accused no. 1 and the family of the PW 12 Sunderdas and his

brothers in law, the Behranis.

19/ This witness has also deposed about an incident on

27.11.1987, when several armed persons came to the hotel along

with accused no. 1 and his brother Narayan, searching for

Ghanshyamdas and not finding him, had ransacked the hotel and

damaged the same. This witness also deposes about how accused

no. 1 was directing his companions to kill Ghanshyamdas

wherever they found him.

20/ In his cross examination, minor embellishments are brought

on record. Also, admittedly, he was in jail in a case u/s 420 IPC in


Gujarat. However, there is no dent in his over all testimony. Thus,

from the over all evidence of this witness, it appears that neither

his complaints were entertained by the police nor his statement

was recorded immediately due to absolute fear of the accused no.

1 Pappu Kalani. His statement in the murder cases of his brothers

Ghanshamdas and Inder were only recorded much later on

15.1.93 & 25.2.93, though he had approached the police several

times and also raised grievance in respect of the two murders

several times. Also, there is nothing to shake the testimony of this

witness on the point of incident as stated by him.

21/ Prosecution has also examined PW 27 Shivkumar Saraswat

below Ex. 447. He was working as a Tax Collector in UMC and

was also a union leader of the UMC staff in 1978. He stated that

the accused no. 1 had been rusticated from the Chandibai

College. On 13.1.1991, the brother of accused no. 1 Narayan had

taken a female employee of Tax department of UMC to Seema

Resort, a hotel owned by accused no. 1. The staff member had

complained to him on 15.1.1991. He then accompanied her to

Central PS and lodged complaint. However, hearing of this,

Narayan threatened him with a revolver and accused no. 1 had

also called him to his chamber. After he tendered apology, the

complaint was withdrawn. This witness also lodged a complaint

in respect of threat by said Narayan. However, no action was

taken because of terror of accused no. 1. In cross examination of

this witness apart from vague contrary suggestion about the

entire incident being false, nothing is brought on record to shake

the testimony of this witness.


22/ The prosecution also examined PW28 Pradeep Tekwani and

PW 29 Jamil Ahmed Zuber Khan to establish the circumstances

and atmosphere prevailing at the time when accused no. 1 Pappu

Kalani was President of UMC between 1986 and 1990 and

thereafter when he became an MLA. PW 28 has resiled from the

prosecution case totally and nothing of any help to the

prosecution is elicited from his testimony. PW 29 Jamil also was

declared hostile. However, his cross examination u/s 154

Evidence Act by Ld. Spl PP is revealing. In the course of the same,

he admitted that he was a supporter of Shiv Sena and BJP at the

relevant time. In 1992, this witness has also contested the

Municipal election. However, he denied having received threats

from accused no. 1 Pappu Kalani and his brother Narayan.

Further on, he admits being called to the Seema Resort. However,

once again, he denied having been threatened by accused no. 1

though he was admittedly present there. He also denies having

been told by the then PI of Central Police Station Shri Faruki to

work for accused no. 1. In the very next paragraph, he admits that

he had sought police protection during the election period and

inspite of being granted the same, PI Faruki had detained him u/s

151 CrPC. Finally, he admits having gone back to U.P out of fear

and having returned only after accused no. 1 Kalani was arrested.

23/ What emerges from his admissions in cross examination is

that this witness was a candidate for the opposition party i.e BJP

and Shivsena. Though he denied being threatened, it seems he is

not telling the entire truth as he admitted being given police

protection at his own request and also being detained u/s 151


CrPC. He also admitted being called to Seema Resort, though he

denied being threatened. However, his unequivocal admission

that he returned to his native place till arrest of accused no. 1 out

of fear speaks volumes about his state of mind. Obviously, he was

pressurized and was apprehending some threat. Else, it is illogical

why he would ask for police protection and also finally go to his

native place till arrest of accused no. 1. Read as whole, therefore,

his testimony also helps the prosecution to show that there was

utmost fear, nay terror, in the minds of people about accused no.

1 at the time. Apparently, even the police machinery was siding

with the accused no. 1. This appears to be so because this witness

admitted that the police refused to record his complaint while at

the same time detained him under section 151, even while he was

under police protection. From the testimony of this witness, the

situation that prevailed during the said period when the accused

no. 1 was a Councillor and subsequently President of UMC as well

as after he became an MLA is quite clear.

24/ Ld. Spl.P.P Shri Patil rightly pointed out that from the

evidence of these witnesses, it is manifest that this is an extra

ordinary case where there was such terror in the minds of the

people that no one would dare utter a word against the accused

no. 1. Any complaints to the police were not entertained. Any

person aggrieved due to wrongs committed by even family

members of the accused no. 1 were silenced. The members of

public were even assaulted and threatened to such an extent that

even some persons like PW Jamil had to go to their native place

and had the courage to return only after accused no. 1 was


arrested. In other words, it appears that accused no. 1 had

unbridled power over citizens at large in the locality and even

over the police machinery which was apparently working in his

favour. Ld. Spl P.P Shri Patil repeatedly urged that in this scenario,

the evidence on record is required to be assessed with proper and

deep insight keeping in mind the terror that the accused no. 1

invoked in the minds of ordinary citizens. He also pointed out

that the accused no. 1 had more than 26 criminal offenses

registered against him out of which 8 are arising out of offenses

of murder, extortion, etc registered against him and 8 were under

TADA. Some of these have been concluded and the accused no. 1

has been acquitted for want of evidence as witnesses have turned

hostile. A list of cases against accused no. 1 and other accomplices

in some case is filed on record at Ex. 585. He submitted that on

more than one occasion, even police personnel have been

murdered or injured along with victims. However, accused no. 1 is

on bail in all the pending cases. In spite of this, as recently as up

to August 2013, fresh offenses have been registered, which clearly

shows that he has even repeatedly shown utter disregard for the

conditions of bail and is inclined towards taking law in his own

hands. According to Shri Patil, this history of repeated offenses

itself shows that the accused no. 1 had scant regard for the law of

the land. Not only this, but also, the manner in which the

incidents have occurred indicates total belligerence and ‘devil

may care’ attitude. The accused no. 1 in other words, has

unleashed a reign of terror leading to ‘gundaraj’ in Ulhasnagar by

creating an impression that he cannot be touched by any law or

enforcement agency. Hence, according to Shri Patil, the court


must also consider why witnesses turn hostile and refuse to say a

word against accused no. 1 in not one but dozens of cases. In the

circumstances, the evidence on record is required to be scanned

in a circumspect fashion considering this background situation.

25/ Advocate Bhatia for the accused no. 1 argued vehemently

that what the law requires is hard facts and evidence. Mere

allegations as made by the prosecution about reign of terror

would necessarily have to be ignored when devoid of any

evidence. Moreover, according to him, witnesses examined on this

point are closely associated with the deceased. Hence, their

testimony cannot be believed in any case.

26/ No doubt PW 12 and 26A are relatives of the deceased,

however, it must be kept in mind that PW 27 & 29 are

independent witnesses. As such, the submissions of Adv. Bhatia on

this point are without any substance. The witnesses have no

reason to lie. In fact, no material is brought on record as to why

they should not be telling the truth or deposing against accused

no. 1. On the contrary, it appears from the overall tenor of their

testimony that they are still under some kind of fear or pressure

and it is only in the form of some of their admissions elicited in

cross examination u/s 154 Evidence Act that gives us a peep into

the reign of unabashed terror that was unleashed by the accused

no. 1. The position at the time when the incident occurred has

been stated by all the above 4 witnesses. There are repeated

references to fear in the minds of all these witnesses. The

background is thus, quite apparent as already discussed above.


27/ In this perspective therefore, it would be proper to now

turn to the evidence on record.

As to point no. 3 to 9:

28/ As the evidence to be scanned on the point nos. 4 to 9 is

common, they are taken up together first for discussion in order

to avoid repetition.

29/ For an offense to be proved under section 302 of IPC, it is

incumbent on the prosecution not only to prove that the death

was homicidal but also that the death was caused by accused and

none else. In other words, the burden is on the prosecution is to

establish the chain of evidence which points unwaveringly to the

guilt of the accused beyond all reasonable doubt. This can be

done through direct or circumstantial evidence.

30/ As far as direct evidence goes, the prosecution case rests

primarily on the evidence of PW4 P. C. Ghanshyam Vijaykumar

Bendre B. no. 1115 Ex. 269, the police body guard assigned to

deceased Inder Bhatija. He is the First Informant and eye witness

to the incident. Though PW13 Vijaybahadur Ramdhiraj Shukla Ex.

288 is also examined as an eye witness as far as the actual

incident is concerned, he has resiled from the prosecution case

and stated that he did not see to who had fired at the deceased

Inder. He claims to have gone to call one Anil when the incident

occurred. As such, no material of any use is elicited even from his

crossexamination under 154 of Evidence Act.


31/ PW4 PC Ghanshyam Vijaykumar Bendre, B.No. 1115 i.e.

the complainant is the material witness in present case. He has

duly proved the complaint Ex. 270 vide his testimony below Ex.

269. In his examinationinchief, he has more or less reiterated

the contents of the complaint almost adverbatim. In addition, he

also described the office of deceased Inder Bhatija where the

incident occurred. The same is a 10 ft. X 10 ft. room with one

front door facing the North i.e. road side. It also has two side

doors to enter the factory out of which the right side door opens

in a lane leading to the factory. The evidence on the point of the

description of spot of offense is not at all challenged.

32/ This witness has also described the four assailants being 25

to 30 years of age. He also identified accused no. 3 Mohammad

Arshad and accused no. 7 Gabriel @ Baba by pointing to them in

the Court itself. This witness has also categorically stated that

these two accused entered the office cabin of deceased Inder

Bhatija. This witness has also identified accused no. 6

Ramchandra @ Bachhi Pande who had aimed a revolver at him

and threatened him into silence whilst Mohammad Arshad and

accused no. 7 Gabriel @ Baba entered the office of the deceased

Inder. The fourth assailant was not before the Court, according to

this witness. Further on, this witness has stated that he had

identified accused Bachhi at the T.I. Parade held at Mumbai and

accused Gabriel at the T.I. Parade held at Pune. He also

categorically stated that he had been shown 2025 photographs

by the Investigation Officer before the accused came to be

arrested.


33/ In crossexamination, PW4 PC Bendre admitted that the

police were present at Central Hospital before he reached there.

He also stated that Vitthalwadi Police had also visited the

hospital. He further states that he stayed in hospital for 510

minutes and thereafter went to the Vitthalwadi Police Station to

lodge complaint Ex. 270. He remained at the police station where

his complaint was being recorded till about 2.00 to 2.15 p.m. on

the date of incident.

34/ As far as description is concerned, he has stated that though

he is aware that in a case of unknown assailants their description

is required to be mentioned in the FIR, he had stated at the time

of recording his FIR Ex. 270 that he had not seen the assailants

who entered the complainant’s office clearly. There is also a

suggestion to this witness that he himself was not at all on duty at

the time of incident and that a false report has been lodged by

him to save his job. In cross examination, several questions were

put to this witness on the point of Identification Parade. However,

no material to shake his testimony on the point of identification is

brought on record as all contrary suggestions are categorically

denied. It is an admitted fact that the papers pertaining to the T. I.

Parade are not filed on record. However, what is pertinent to note

is that in the cross examination, there is denial that both the

identification parades at Mumbai and Pune were actually held.

This is evident from the entire tenor of cross examination, where

in questions are put to the witness about the exact procedure of

conducting the T. I Parades. However, there is no whisper of any

denial of the same being conducted. What is put to this witness is


that it was not conducted as per the criminal manual, which are

flatly denied. Suffice it to say, that this witness has clearly stated

that he had identified accused Bachchi Pande and Gabriel @ Baba

at the same held in Bombay and Pune respectively.

35/ The main plank of attack of Ld. Counsel Pasbola

representing accused nos. 3 and 5 to 7 is that the identification by

PW4 Ghanshyam Bendre of the accused before the Court cannot

at all be relied upon mainly on the ground that same was almost

1516 years after the incident. Ld. Advocate Pasbola also pointed

out that there was no mention of the description of any of the

assailants in the FIR Ex. 270 except that one of the assailants was

dark and stout and all the four assailants were aged between

2530 years. He further agitated that in the case of unknown

assailants such a vague description and subsequent identification

after 16 years could not at all be believed and therefore, is

definitely not sufficient to establish the link between the alleged

offense and the present accused. He also drew attention to the

admitted fact that the relevant documents of the T. I. Parade have

not been produced on record. As such, there is no corroboration

of the identification in Court. Finally, he argued that in any case,

the PW 4 P. C. Bendre was a police witness. Hence, on this ground

also, his testimony cannot be accepted. All in all, therefore,

according to the Ld. Counsel Shri Pasbola, the prosecution

evidence on the point of identification of accused Baba @ Gabriel,

Bachchi Pande and Shaikh Arshad was not at all cogent or

credible and was not at all sufficient to establish the nexus

between the alleged offense and the present accused.


36/ In support of his submissions, Advocate Pasbola on behalf

of accused nos. 3,6 and 7 has relied on following authorities :

1] Criminal Application No. 1178/2011 (The State of

Maharashtra Vs. Murli Ramchandra Purswani & Ors.) wherein it

was held that:

'It can thus be clearly seen that the only evidence on

which the prosecution seeks to rely is that of identification parade

of accused nos. 8 and 9. In so far as the other accused are

concerned, they are alleged to be conspiracy with the main

accused. In so far as the identification parade is concerned,

though the accused no. 8 is arrested on 14/01/1995 i.e. 4 ½

years from the date of incident, the identification parade was

conducted on March 1995. The accused no. 9 was arrested on

13th November, 1995 and his identification parade was conducted

20th December, 1995. The learned Trial Court has found that the

identification parade which is conducted after long gap from the

date of incident and also after the considerable length from the

date of arrest was not believable and trustworthy. We do not find

that the view taken by the learned Trial court is either perverse or

erroneous.'

2] 1982 Supreme Court Cases (Cri) 356 (Manzoor Vs. State

of Uttar Pradesh) wherein it was observed that:

'If at the earliest opportunity the homeguards did not

mention any identifying features of the culprits when they were

examined by PW 12, it is difficult for us to believe how PW 2

could have identified both the appellants nearly two months later

on November 17, 1978. It has to be noted that the appellants


have stated in the trial court that they were shown to the

witnesses before the identification parade was held. In these

circumstances we are not impressed with the evidence of PWs 1

and 2.

. . . . . 'In these circumstances, we are of the opinion that

the prosecution has not proved the guilt of appellants

satisfactorily beyond all reasonable doubt.'

3] 1987 CRI.L.J. 991 = AIR 1987 Supreme Court 1222

(Subash and Shiv Shankar Vs. State of U.P.) wherein it was held

that:

'As the conviction of Shiv Shankar is based solely with

reference to his identification at the identification parade, he has

to be given the benefit of doubt and acquitted in the light of our

finding.'

4] 1981 CRI.L.J. 1014 : AIR 1981 Supreme Court 1392

(Wakil Singh and others Vs. State of Bihar) wherein it was

observed that:

'In the instant case we may mention that none of the

witnesses in their earlier statements or in oral evidence gave any

description of the dacoits whom they have alleged to have

identified in the dacoity, nor did the witnesses give any

identification marks viz., stature of the accused or whether they

were fat or thin or of a fair colour or of black colour. In absence

of any such description, it will be impossible for us to convict any

accused on the basis of a single identification, in which case the

reasonable possibility of mistake in identification cannot be


excluded. For these reasons, therefore, the trial court was right in

not relying on the evidence of witnesses and not convicting the

accused who are identified by only one witness, apart from the

reasons that were given by the trial court. The High Court

however has chosen to rely on the evidence of a single witness,

completely over looking the facts and circumstances mentioned

above. The High Court also ignored the fact that the

identification was made at the T.I. Parade about 3 ½ months after

the dacoity and in view of such a long lapse of time it is not

possible for any human being to remember, the features of the

accused and he is, therefore, very likely to commit mistakes. In

these circumstances unless the evidence is absolutely clear, it

would be unsafe to convict an accused for such a serious offence

on the testimony of a single witness.'

5] 1998 Supreme Court Cases (Cri) 1527 (Ravindra alias

Ravi Bansi Gohar Vs. State of Maharashtra and others) wherein

the Hon'ble Apex Court observed that:

'A vital factor for determining the value of an

identification parade is the effectiveness of the precautions taken

by those responsible for holding them against the identifying

witnesses having an opportunity of seeing the persons to be

identified by them before they are paraded with other persons

and also against the identifying witnesses being provided by the

investigating authority with other unfair aids or assistance so as

to facilitate the identification of the accused concerned.'

6] Supreme Court of India, Cri. Appeal No. 172174 of


1981 (State of Maharashtra Vs. Subhaiya Kanak Maniah & Ors.)

wherein it was observed thus:

'Throughout the contention of the defence had been

that these witnesses did not give any descriptive particulars of the

accused and therefore they had not seen the persons concerned.

It is only at a later stage after being tutored that they gave some

particulars and proceeded to identify some of the assailants in the

identification parade.

. . . . .Further the circumstances show that the

incident must have occurred within seconds rather in a flash of

time and it is highly doubtful whether these witnesses would have

been in a position to identify any of the culprits. We can not say

that the reasons given by the High Court for not relying on the

evidence of these main witnesses becomes doubtful and not

acceptable, then the other circumstances relied upon by the

prosecution do not advance the prosecution case.'

37/ To counter this, Ld. Special PP Shri Vikas Patil argued that

in the circumstances under which PW4 Ghanshyam Bendre had

seen the assailants, he was not likely to forget them or their faces

for the rest of his life. Shri Patil also submitted that in the entire

cross examination there was no challenge to the deposition of

PW4 that one of the assailants i.e. accused no.6 Ramchandra alias

Bacchi Pande had revolver with him and threatened him with the

same along with one more accused, while accused Mohammed

Arshad and Baba @ Gabriel had entered the cabin of deceased

Inder Bhatija. Obviously, it was a life and death situation for PW4.

He has also deposed about his musket being snatched out of his


hand and being flung on the roof by the accused who was aiming

at the watchman. As such, it is unlikely that the victim, who had

been held at gun point by some one and was on the verge of

death, would forget the face of his tormentor till his last breath.

Moreover, Ld. Spl. PP also pointed out that in the cross

examination of this witness and also other prosecution witnesses

there is not a single reason brought on record as to why he would

falsely implicate the present accused except vague suggestion that

he was deposing falsely at the instance of his superiors, which of

course is flatly denied. Also, the question arises as to why even his

superiors would falsely implicate the accused in this case. There

is no whisper about previous enmity or ill will against any of the

accused. In the circumstances, according to Spl. PP Patil there is

no reason why substantive evidence of identification before the

Court should not be accepted. As far as evidence of T.I Parade is

concerned, he argued that the same in any case is only a

corroborative evidence. Hence, even if the same is not placed on

record, this by itself does not affect the testimony of the eye

witness PW 4 Bendre. In fact, when the substantive evidence in

the form of identification before the Court is cogent and reliable,

same ought to be accepted. He argued that though the PW 4

Bendre was a police man, that does not by itself make his

testimony unbelievable. He was at the spot of incident in the

course of his duty as a body guard for the deceased. As such, his

presence at the spot is quite natural and so is his evidence. The

FIR was lodged by him immediately after he recovered his musket

and sent the deceased to the hospital. Hence, there is no

impediment in relying on the evidence of this witness.


38/ To buttress his submissions he relied on authorities

reported in 2012 ALL MR (Cri) 706 (S.C) (Omkar & Anr Vs State

of U.P) wherein the Hon'ble Supreme Court accepted the evidence

of closely related witness and held the same to be cogent,

trustworthy and reliable to base conviction. It is also observed

that if the evidence of closely related witnesses has a ring of truth,

is cogent, credible and trustworthy, it can be relied on. Similar

ratio is also laid down in the case of Ashok Ganapati Patil

reported in 2012 ALL MR (Cri) 455.

39/ Ld. Spl. PP Shri Patil also placed reliance on authorities

reported in 2013 ALL MR (Cri) 2416 (Babubhai @ Zaverchand

Harjivan Sheth Vs. The State of Maharashtra)

TIP belongs to the stage of investigation and

essentially governed by Section 162 of the Criminal Procedure

Code and does not constitute the substantive evidence. Hence

cannot be decisive factor for recording conviction. There is no

provision in the Code of Criminal Procedure to make it

compulsory for the investigating agency to hold test identification

Parade because the substantive evidence is identification of the

culprit before the Court. Failure to hold the TIP would not make

the evidence of identification in the of identification in the Court

absolutely meaningless or inadmissible. The evidence of TIP

provides only corroboration to the main evidence before the Court

when required by way of the abundant precaution in view of

Section 9 of the Indian Evidence Act. The object of holding TIP at

the stage of investigation is to help the investigating agency to

assure itself that the investigation is proceeding at right direction,


on correct lines. The purpose of the holding prior test

identification is to test trustworthiness of the witness at the stage

when investigation is still at its preliminary stage. The holding of

the T. I.P is felt necessary in a case wherein the accused were not

known to the victim since prior to the incident. The accused

cannot as of right claim that the test identification parade must be

held at the stage of investigation. The trial Court is not precluded

from accepting the evidence of the identification of the offender

on the basis of sworn testimony in the Court without insisting

upon the corroboration. Though safe rule of prudence is to look

for corroboration. It is for the learned trial judge, as a Court of

fact, who has opportunity to see and have live experience of

watching demeanor of the witness while he or she is deposing

before the Court, to attach the appropriate weight to the evidence

of the witness. In an appropriate case, the trial Judge may accept

the evidence of identification in the Court even without insisting

upon the corroborative evidence.

40/ He also placed reliance on authority reported in 2013 ALL

MR (Cri) 475 (Subramani Mandar Konar & Anr. Vs. The State of

Maharashtra) wherein similar observations were laid down. It

was thereafter held that merely necause the evidence of S.E.M has

not been adduced at trial, it would not impair the evidence of PW

1 which otherwise inspires confidence. The ratio in this case is

squarely applicable to the instant case, in as much as, the

evidence of PW 4 Bendre is well corroborated by the FIR lodged

by him and narration of the incident also.


41/ Further, he relied on the ratio laid down in the authority

reported in 2013 ALL MR (Cri) 2620 (S.C.) : ALL

SCR201321208 (Rohtash Kumar Vs. State of Haryana) wherein

it was observed that:

'It is a settled legal proposition that while

appreciating the evidence of a witness, minor discrepancies on

trivial matters which do not affect the core of the case of the

prosecution, must not prompt the court to reject the evidence in

its entirety.

'Thus, the court must read the evidence of a witness as a

whole, and consider the case in light of the entirety of the

circumstances, ignoring the minor discrepancies with respect to

trivial matters, which do not affect the core of the case of the

prosecution.

'The term witness, means a person who is capable of

providing information by way of deposing as regards relevant

facts, via an oral statement, or a statement in writing, made or

given in Court, or otherwise. Thus, a witness is normally

considered to be independent, unless he springs from sources

which are likely to be tainted and this usually means that the said

witness has cause, to bear such enmity against the accused, so as

to implicate him falsely. In view of the above, there can be no

prohibition to the effect that a policeman cannot be a witness, or

that his deposition cannot be relied upon. The evidence of police

officials cannot be discarded merely on the ground that they

belonged to the police force, and are either interested in the

investigating or the prosecuting agency.'


42/ Ld. Spl.P.P Shri Patil also placed before me authority

reported in 2013 ALL SCR 2788 (Pramod Kumar Vs. State

(GNCT) of Delhi) wherein the Hon'ble Supreme Court observed

that:

The witnesses from the department of police cannot

per se be said to be untruthful or unreliable. It would depend

upon the veracity, credibility and unimpeachability of their

testimony.

43/ If the testimony of the police officer is found to be

reliable and trustworthy, the court can definitely act upon the

same. If, in the course of scrutinizing the evidence, the court

finds the evidence of the police officer as unreliable and

untrustworthy, the court may disbelieve him but it should not do

so solely on the presumption that a witness from the department

of police should be viewed with distrust. This is also based on the

principle that quality of the evidence weighs over the quantity of

evidence.

44/ The wording of the aforementioned authorities is self

explanatory and needs no further comment. The authorities relied

on by the Ld. Counsel Shri Pasbola on the other hand appear to be

on the point of test identification parade, evidence pertaining to

which, in any case, is not brought on record in the present case.

As such, the same would have to be distinguished.

45/ In the present case, no doubt, evidence of test identification

parade is not on record. However, it is well settled that


identification before the Court is substantive evidence and can be

accepted even without corroboration provided it is free of

infirmities. In the present case, as already discussed above, apart

from vague suggestions about deposing falsely at the instance of

superiors, there is no reason attributed to PW 4 as to why he

would falsely identify the accused before the Court. No doubt, he

is a police witness. However, it must be kept in mind that, in the

present case, he is examined as an eye witness. His presence on

the spot is not at all denied. His presence was very natural as he

was the assigned body guard of deceased Inder. The entire

narration of the incident as it unfolded has been corroborated by

the FIR itself. Hence, discarding his testimony because he happens

to be a police witness, would be tantamount to labelling all

policemen liars. Hence, I find no substance in the submission of

the Ld. Counsel Shri Pasbola that his testimony is required to be

discarded merely because he is a police witness.

46/ Ld. Advocate Pasbola for accused nos. 3 and 5 to 7 also

argued at length on the point of absence of evidence on the point

of test identification parade. He also agitated that admittedly the

witness P4 had been shown to the accused Arshad in the lock up

itself. He also pointed to the admission of this witness in cross

examination that the Investigation Officer had shown him the

photographs of the other accused, therefore, he submits that even

the identification of the accused by this witness in test

identification parade cannot be accepted.

47/ It is pertinent to note that PW4 has stated that after the


incident he was shown the albums containing 2530 photographs

of sharp shooters. Thereafter, accused Bacchi @ Ramchandra

Pande and Gabriel came to be arrested. Test identification parade

was held thereafter at Bombay and Pune. In the circumstances,

submission of Ld. Counsel Pasbola that the witness was shown the

photographs of the accused before test identification parade is not

sustainable. In fact, it would seem that after the witness had

identified the sharp shooters from their albums, the police have

arrested the various accused from various places like Delhi,

Bombay and Pune. In other words, the albums containing the

photographs of the accused were shown to the witness much

before the accused were arrested. As such, it will not reflect in

any way on the test identification parade. In any case, there is no

evidence on record as regards the said test identification parade.

Hence, his entire line of argument on the point of test

identification parade itself is of not much consequence.

48/ From my discussion in the foregoing paragraphs therefore,

it is manifest that the testimony of PW 4 P. C. Bendre appears

overall to be quite natural and has a ring of truth to it. As such, I

do not see any impediment in accepting his evidence including his

identification of the three a.m accused.

49/ The prosecution also examined the PW 8 Behrani, the

panch witness over the spot panchanama Ex. 275 and Ex. 276.

He has testified in respect of the spot of offence in consonance

with the panchanama Ex.275. He has stated the position of the

table, chair, doors, entry and exit points, articles in the office lying


dishevelled, blood splattered in the office, blood stains on the

table, holes on the walls behind the chair, stains on the floors

between the table and chair and also four cartridges found at the

spot. The entire description is more or less along similar lines as

that in the spot panchanama Ex. 275. There is no serious

challenge to the testimony of this witness. He has also deposed

that the chair on which deceased was the subsequently attached

on 12/12/92 vide panchanama Ex. 276. There is no challenge to

his testimony on this point also. As such, both the said

panchanamas Ex. 275 and Ex. 276 have been duly proved.

50/ Next, the prosecution examined PW3 Jeevan Hari Shirsat, a

panch witness over seizure of clothing of deceased. However, this

witness has totally resiled from the prosecution case and his

testimony below Ex. 266 is not of any use to the prosecution.

Similarly, PW 5 Deepak Kalra, PW 6 Janardan Mhatre, PW 7

Ramesh Chetlani have testified below Ex. 271 to Ex. 273

respectively. They have all resiled from the prosecution case.

Nothing of any use to the prosecution is elicited from their

testimony despite detailed crossexamination by learned APP

under section 154 of Evidence Act.

51/ PW 15 ASI Popat Kale has deposed below Ex.302 in respect

of seizure of the blood stained clothing of deceased and has duly

proved the panchnama Ex. 307 in respect of the same. There is no

cross examination of this witness whatsoever. Hence, his

testimony clearly establishes the seizure of the clothing of

deceased.


52/ PW 14 Sr.P.I. Jadhav conducted investigation in the present

case. He deposed about having recorded the spot panchanama

through PSI Deshmukh immediately after offense was registered

and also statements of witnesses in the course of investigation.

He has further proved the statement of PW 13 Shukla at Ex. 300

and has also introduced application article 'A' sent by deceased

Inder seeking police protection, in view of threat to his life.

Finally, he obtained inquest panchanama before investigation was

handed over to his successor. Testimony of this witness is more or

less of formal nature and is not at all challenged or denied.

53/ PW17 DCP Phadke has conducted investigation in the

present case from 24/04/94 to 01/05/95 and has sent up the

supplementary chargesheet against accused Richard Fernandes,

Bachhi Pandey, Kishore Patki on 25/05/94, 1/01/95 respectively.

This witness is the second investigating Officer. He deposed

about having recorded supplementary statement of witnesses and

also production of accused Bachhi Pandey before DCP Bhosale for

recording his confession. There is no serious challenge to his

testimony. Admittedly, however, no papers in respect of TI parade

have been produced in the present case.

54/ Apart from this, admittedly the weapons of offense mainly

revolver has not been produced before the court. Also, admittedly

the clothing of the accused was not seized in the present case.

However, it is pertinent to note that accused were arrested several

years after the incident as they had absconded immediately after


the same occurred. Obviously, seizure of clothing after a few years

of the incident could not be of much significance.

55/ As regards, the seizure of weapons, PW19 Mahavirkumar is

the panch witness over arrest panchanama of the accused and

seizure of firearms from their possession and also other 34

accused. In his testimony below Ex. 332, this witness was also

resiled from the prosecution case and no material any use to the

prosecution is elicited from his crossexamination under section

154 of the Evidence Act.

56/ However, PW21 Investigation Officer Shri Jaysingh

Shivajirao Patil has deposed that accused Gabriel @ Baba and

Bacchi Pande were arrested by him in CR no. 159/91 and taken to

Khar Police Station when he was working in Anti Terrorist Squad

on 04.03.1991. The weapons were seized from their custody

under panchanama Ex. 325. Said weapons were produced in the

concerned court under whose jurisdiction the said offense was

registered. Investigation Officer Shri Taktode has deposed at

length about his efforts to obtain the weapons in the present case.

The correspondence in this regard is filed on record. No doubt it

has not been admitted in evidence and has not been marked as

Exhibit. However, there is no serious challenge to this part of the

evidence. It is not disputed that the panchanamas of the weapons

which were deposited in court in the case arising out of C.R.No.

159/91 of Khar Police Station. However, apparently he failed to

get custody of the said weapons or to produce the same before

the Court. Hence, it seems that the weapons were not produced


in Court for reasons beyond the control of present Investigation

Officer despite best efforts.

57/ The seizure panchanama of weapons is at Ex.325. The

Investigation Officer PW21 ACP Patil has also deposed having

recorded the aforementioned panchanama which is in his own

handwriting. This is not seriously challenged. He has also

categorically stated that accused Bacchi Pande was found in

possession of loaded Colt Revolver which was unloaded by PW21.

Accused Baba alias Gabriel was found in possession of loaded

foreign made Pistol and that PW 21 similarly unloaded the same

and attached revolver and the rounds. He has also arrested other

accused who were also involved in the said offense. As far as

seizure of weapon from accused Arshad is concerned, PW21 has

stated that after they recording seizure panchanama at Calbrow,

one of the accused Ramchandra alias Bacchi Pande expressed

willingness to lead the police to the place where their accomplices

were waiting for them and M/s. Papillon Tailoring Shop along

with additional arms and ammunition. PW 21 deposed that three

more accused i.e. accused no.3 Shaikh Mohammad Arshad, one

Dalani and one Tirupati were apprehended from there along with

weapons. Accused No.3 Arshad was found in possession of one

steel revolver .32 caliber. He also stated that the other accused in

the said offense also had other weapons.

58/ In crossexamination, PW 21 admits that signatures of the

accused had not been obtained on the said panchanama nor copy

of the same is given to the accused. So also, there is no mention


about the seized weapons being sealed or labeled. However, it is

pertinent to note that the said panchanama is about articles found

in possession of the accused when they were apprehended. There

are no directive provisions where signatures of accused were

required to be obtained on the said panchanama, though the

same may be obtained as a matter of precaution. Further on, in

the crossexamination there is a series of questions about the

exact location. The witness has also reiterated in cross

examination that the weapons were placed on the table while he

recorded the panchanama in presence of two panchas. There is no

denial of this testimony which amounts to deemed admission of

the same. Hence, from the cross examination itself, it is apparent

that there is no serious denial about the a.m accused nos. 3, 6 & 7

being found in possession of the alleged weapons as detailed in

the panchnama Ex. 325. Vague suggestions are subsequently put

to this witness about not having recorded any panchanama, nor

seized anything from the accused. However, all these suggestions

are flatly denied. As such, there is no dent in the testimony of this

witness on material points. As such, I see no impediment in

relying on the same. In the circumstances, I feel prosecution has

established that the weapons i.e. Colt Revolver and Foreign made

Pistol were found in possession of the accused Bacchi and Gabriel

and one revolver was recovered from the accused Arshad. In

other words, no doubt the panch witness has not supported the

prosecution case. However, fact remains that the Investigation

Officer PI Patil has duly proved the panchanama Ex.325. In the

exceptional circumstances of the present case as already discussed

above, the possibility of witnesses deposing falsely in Court due to


fear of the accused is very strong. On the other hand, the

Investigation Officer is a public servant and has no reason to

falsely implicate the accused. As such, I see no impediment in

accepting the same, though the independent panch has not

supported the prosecution case. There is no whisper of the a.m

accused having any license to carry the firearms or having

produced the same before the police. Hence, I am inclined to hold

that the prosecution has duly proved the allegation that the

accused nos. 3, 6 & 7 were found in possession of firearms as

detailed above.

59/ PW 24 Vilas Gadkar, who has arraigned as a panch witness

over the seizure panchanama of revolver found in possession of

the accused no.1 Pappu Kalani on 12.11.1992. This witness has

also resiled from prosecution case in his examination in chief.

Hence, he was crossexamined at length under section 154 of

Evidence Act. In his cross examination, he admitted that he

belongs to Shiv Sena Party and was Shakha Pramukh. Admittedly,

accused no.1 Pappu Kalani was present in the police station when

he was called there by the police. He had also seen accused in

custody at that time of his own request. In his crossexamination,

he has also stated that besides of the articles mentioned in

panchanama nothing was seized in his presence except those

stated above. He admittedly signed the panchanama without

reading the same as he had faith in the police. This panchanama,

has not therefore been duly proved. As such, the prosecution

contention that the revolver was seized from possession of

accused no.1 Pappu Kalani is not established.


60/ The prosecution has further examined Asst. Chemical

Analyser Shri Ramteke below Ex 394. He has stated that the

weapons seized in CR. no. 159/91 and empty cartridges

recovered in the present CR no. 89/90 were sent to the Forensic

Laboratory. This witness has produced the relevant documents in

this connection at Ex. 395. However, by the time, the weapons

were received, the empties were returned, hence, they could not

be compared.

61/ PW 23 Asst. Chemical Analyzer Shri Rokade was also

examined below Ex 378. He produced the C.A reports Ex. 379 &

380 which show in essence that the cartridges sent for analysis

matched the clothing of the deceased Inder. There is no serious

dent in his testimony in his cross examination.

62/ From the evidence on record, therefore, it is clear that the

PW 4 Bendre has categorically stated that the accused Bachchi

Pande, Baba @ Gabriel and Mohd. Arshad had entered into the

office of deceased Inder along with one more person, who was

not before the Court. Out of these, accused no. 3 Mohd. Arshad

and accused no. 7 Baba @ Gabriel went into the inner office,

whilst the unknown assailant and accused no. 7 Bachchi Pande

pointed a revolver at him after having snatched his musket and

flung it on the roof. Within minutes, he heard shots being fired

and the duo who had gone inside came out of the office.

Thereafter, when this witness entered the office, he found the

deceased Inder lying injured in a pool of blood with firearm


injuries. It is pertinent to note that there is no reason why this

witness would falsely implicate the accused as already discussed

above. The spot panchnama corroborates this evidence. The

seizure of clothing of deceased is also proved. The medical

evidence also as already discussed above corroborates the

evidence of PW 4. As laid down in a catena of authorities, it is

well settled that the evidence of even a solitary witness can be

believed, provided it is free of infirmities, which in this case, I

have already observed, it is. The deceased Inder succumbed to his

injuries caused due to shots being fired at him by the accused

Baba @ Gabriel and Bachchi Pande, whilst accused Arshad and

one other unidentified person held the PW4 at gun point outside

the office to prevent their entry in the office.

63/ It is pertinent to note that there is no defense about any

one else having entered the office of deceased Inder or having

fired at him, in the cross examination or even in the statement of

the accused u/s 313 CrPC. Apart from bare denial, there is no

defense at all. Hence, I see no impediment to hold that the

prosecution has proved beyond reasonable doubt that the accused

nos. 3, 6 & 7 have committed cold blooded murder of Inder

Bhatija after unlawfully entering his office and threatening PW 4

Bendre and snatching his musket in order to prevent him from

performing his duty as body guard of deceased Inder. The

common intention of all these accused to murder the deceased

Inder is also manifest from the fact that all of them had entered

the office together and all of them were carrying firearms.


64/ Ld. Counsel for the accused Shri Pasbola agitated that the

evidence of the PW 4 had no support. Weapons in this case are

not produced before the Court. Hence, one of the essential

ingredients of the alleged offense are not made out. Prosecution

has also failed to establish that the empties recovered from the

spot are the same fired from the weapons found in possession of

the accused. Independent witnesses have not supported the

prosecution. As such, sole testimony, more specifically the

identification of the accused by him, cannot be relied upon.

65/ Ld. Spl. PP Shri Patil however, strongly refuted this

submission with authority reported in AIR 2005 Supreme Court,

3759 (State of Punjab Vs. Hakam Singh) wherein in a similar

situation the Hon'ble Apex Court had observed thus:

'It was also pointed out by learned counsel for the

respondent that no fire arms were recovered and no seizure has

been made of empties. It would have corroborated the

prosecution story. Seizure of the fire arms and recovering the

empties and sending them for examination by the Ballistic expert

would have only corroborated the prosecution case but by not

sending them to the Ballistic expert in the present case is not fatal

in view of the categorical testimony of P.W.3 about the whole

incident. '

66/ He further placed reliance on authority reported in 2011

Cri.L.J. 2903 (S.C. Bhagwan Das Vs. State (NCT) of Delhi)

wherein it was held that even circumstantial evidence was

sufficient to sustain conviction. In such a case, the motive would


be very important. He also placed relied on authority reported in

AIR 2008 Supreme Court, 3258 (Dinesh Kumar Vs. State of

Rajasthan) and AIR 2002 Supreme Court, 1937

(Dharmendrasinh alias Mansing Ratansingh Vs. State of Gujarat)

to buttress his submissions. In this case it was observed that

despite the contradictions of the defective or tainted investigation

a conviction can safely be recorded.

67/ In the present case also, I have already observed that the

evidence of PW 4 P. C. Bendre is quite natural and rings true. He

has narrated the entire incident in detail. The FIR in the present

case, the spot panchanama and the medical papers corroborate

his testimony. It is a matter of record that the accused were

absconding for 23 years immediately after the incident. As such,

their clothing or weapons could not be attached. However,

subsequently, they were found in possession of weapons as clearly

detailed in panchanama Ex. 325. By that time, the empties

recovered from the spot had already been returned by the

Forensic Science Laboratory. Hence, they could not be tallied with

the weapons recovered from the accused. The weapons in any

case could not be produced in this case inspite of due diligence in

the present case as reflected from the correspondence in this

regard which is placed on record. In any case, relying on the a.m

authority, it is crystal clear that even the substantive evidence of a

solitary eye witness is sufficient to base conviction if it is cogent

and credible. As already discussed above, the evidence of PW 4

Bendre is so and does not suffer from any infirmities. Hence,

respectfully relying on the a.m authorities I am inclined to hold


that the evidence of PW 4 P.C. Bendre is sufficient to prove the

offenses u/s 450, 506(II), 353 & 302 r/w 34 IPC as well as u/s

27(2) Arms Act as against accused nos. 3, 6 & 7 only. As regards

accused no. 5, none of the witnesses has uttered a single word to

link him with the alleged offense. Hence, it follows that point no.

4 to 7 & 9 are answered in the affirmative as against accused nos.

3, 6 & 7 and in the negative against accused no. 5.

68/ Once I have held the accused nos. 3, 6 & 7 guilty of offense

u/s 302 r/w 34 IPC, the question of attempt to murder u/s 307

IPC does not survive. Hence, point no. 8 is answered in the

negative. Similarly, there is no direct evidence to show either

active instigation, aiding or engagement of accused no. 1 with the

act of accused nos. 3, 6 & 7. As such, abetment as envisaged by

Sec. 109 IPC is not at all made out. Hence, point no. 3 answered

accordingly.

As to point no. 2:

69/ As already noted above, the allegation against accused nos.

1 & 2 is that they had masterminded the murder of deceased

Inder due to previous enmity. In other words, they are sought to

be prosecuted on grounds of criminal conspiracy to murder the

deceased Inder. There was previous history of political rivalry

between political factions to which accused no.1 belongs and the

opposite faction to which deceased Inder and his uncles Gop

Behrani, Mohan Behrani and Thakur Behrani owed allegiance.

On this point prosecution has examined several witnesses who

have thrown light on the situation and environment prevailing at


the time of the incident. This I have already discussed in the intial

part of the judgment, hence, I do not find it necessary to reiterate

the same at this juncture.

70/ Section 120A of the Indian Penal Code defines criminal

conspiracy as an agreement between two or more persons to

commit an illegal act or to do an act which though by itself not

illegal but the same is done or executed by illegal means. Mere

proof of an agreement between the accused to commit offence is

enough to bring about the conviction for the offence punishable

under section 120B of the IPC, in such case proof of any overt act

by the accused or by any of them would not be necessary.

Conclusion is to be drawn from the circumstantial evidence

available in the case, because Criminal conspiracy is often

hatched in complete secrecy and it is impossible or rare to get

direct evidence. It is not necessary that each of the conspirators

must know each and every detail of the conspiracy nor it is

necessary that every one of the conspirators must take part in the

commission of each and every conspiratorial act. The prosecution

may prove from the circumstances on record that the agreement

existed to commit crime by necessary implication. It is said that

men may lie but the circumstances do not. How criminal

conspiracy was formed, when and who were the participants as

also the manner in which the criminal conspiracy is carried out

are the matters of inference, legitimately deducible from the acts

and conduct of the accused persons. When circumstances are

cogently and firmly established, considered cumulatively, they

form a chain so complete to unmistakably point out towards guilt


of the accused and none else then conviction is sustainable.

71/ In the present case, the standing of the accused no. 1 in the

society is already brought on record through 4 witnesses. It is

clear that he had unleashed a reign of terror in the locality. The

police machinery as per the a.m prosecution witnesses would

refuse to entertain aggrieved persons due to any acts involving

the accused no. 1 or his family members. None dared to open

their mouths against him. In fact, the main motive of the murder

of Inder Bhatija was that he was the First Informant and eye

witness in the murder of his brother Ghanshyamdas apart from

the political rivalry which is not seriously challenged or denied.

Said Ghanshyam was also murdered according to the prosecution

as he had caught the accused no. 1 and his henchmen in bogus

voting red handed in the election held in 1990 and raised an

objection. It is an admitted fact that in the same election, accused

no. 1 had won. It is also an admitted fact that after this incident,

the present deceased had sought police protection alleging that he

was receiving threatening phone calls and even personal threats.

The police protection had accordingly been granted. In spite of

this, the deceased Inder was gunned down by the accused nos. 3,

6 & 7 after holding the same body guard PW 4 Bendre at gun

point. The prosecution has alleged that accused no. 1 and 2 were

behind the plan due to the staunch enmity with the deceased

Inder and also the fact that he was the sole eye witness in the

murder case of his brother Ghanshyam. This seriatum of events is

not denied. Only the involvement of present accused was denied.

However, relying on the evidence of PW 4 Bendre and the ratio


laid down by the Hon’ble Supreme Court, I have already held that

the prosecution has clearly made out its allegation that the

accused nos. 3, 6 & 7 had committed the murder of Inder. As

such, the prosecution contends that a high degree of animosity is

obvious from the a.m facts.

72/ Ld. Spl P.P Shri Patil at the very outset conceded that the

present case hinged on circumstantial evidence only. Considering

the fear of the accused no. 1 in Ulhasnagar, no one dared say

anything against him. However, this by itself does not affect the

prosecution case. He submitted that a conviction can be sustained

only on circumstantial evidence provided the same was logical

and led to the conclusion of complicity of accused. He relied on

authority reported in AIR (SC)201101863 (Bhagwan Dass Vs.

State (NCT) of Delhi) wherein it was observed that:

‘This is a case of circumstantial evidence, but it is settled

law that a person can be convicted on circumstantial evidence

provided the links in the chain of circumstances connects the

accused with the crime beyond reasonable doubt.

‘In cases of circumstantial evidence motive is very

important, unlike cases of direct evidence where it is not so

important.’

He also relied on authority reported in 2013 ALL SCR 3033

(Bakhshish Singh Vs. State of Punjab & Anr.) wherein it is laid

down that:

'When a high degree of animosity is established the

existence of the motive may be taken to be established.'


73/ To establish strong motive, prosecution has relied on firstly

the FIR filed in Sessions Case No. 219/91 Ex. 310. According to

Spl. P.P Shri Patil, this points unwaveringly to the motive of

murder of Inder in this case. He further urged that the same also

throws light on the cause of his own death. Hence, it could be

read into evidence. To introduce the same, PW18 DCP Jadhav was

examined. He has duly proved certified copy of FIR in Sessions

Case No. 219/91 Ex. 310 vide his testimony below Ex. 309. Said

FIR was lodged by deceased Inder, who is the victim in the

present case, in respect of murder of his brother Ghanshyam.

74/ In crossexamination, by learned counsel for accused no.1,

he admitted that there were criminal cases registered against

deceased Ghanshyam and his deceased brother Inder, the victim

in the present case, at Vitthalvadi police station. He also stated

about the background circumstances and rivalry between Gopal,

Ghanshyamdas and Inder, which is also not denied. Rest of the

antecedents of the present case have stated by this witness along

similar lines as those stated by PW 11 Sundar. Admittedly,

accused no.1 has always been a member of the ruling party.

Admittedly, this witness was incharge of over all supervision of

investigation. Apart from this, there is nothing else of much use to

the accused in the deposition of this witness.

75/ A bare perusal of the FIR in S.C no. 219/99 Ex. 310 clearly

reveals that deceased Inder had lodged FIR in Sessions Case No.

219/1999 in which there is a graphic description of the manner in

which his brother Ghanshyamdas was murdered on 27.02.1990.


There is a specific allegation in the same that accused no.1 had

sent professional killers to murder him. During this incident

killers had also fired at now deceased Inder, however, he did not

sustain injuries as he had ducked in time. The deceased

Ghanshyam had been declared dead on arrival at the hospital.

From this, it is crystal clear that the deceased Inder was an eye

witness of the murder of his brother Ghanshyamdas.

76/ He also urged that the FIR be read into evidence as it threw

light on the circumstances leading to the death of deceased Inder.

To buttress his submissions, he relied on authority reported 2013

ALL SCR 2500 (Rafique @ Rauf & Ors. Vs. State of U.P.) wherein

it was observed that:

‘There is no statutory prescription as to in what manner or

the procedure to be followed for recording a dying declaration to

fall within the four corners of Section 32(1) of the Evidence Act.

It will have to be found out whether in the facts and

circumstances of any case the reliance placed upon by the

prosecution on a statement alleged to have been made by the

deceased prior to his death can be accepted as a dying

declaration, will depend upon the facts and circumstances that

existed at the time of making the statement.

‘We also wish to add that as on date, there is no statutory

prescription as to in what manner or the procedure to be followed

for recording a dying declaration to fall within the four corners of

section 32(1) of the Evidence Act.

‘As has been repeatedly stated in various decisions, it will

have to be found out whether in the facts and circumstances of


any case the reliance placed upon by the prosecution on a

statement alleged to have been made by the deceased prior to his

death can be accepted as a dying declaration, will depend upon

the facts and circumstances that existed at the time of making the

statement. In that case it would mainly depend upon the date

and time visavis the occurrence when the statement was alleged

to have been made, the place at which it was made, the person to

whom the said statement was made, the sequence of events,

which led the person concerned to make the statement, the

physical and mental condition of the person who made the

statement, the cogency with which any such statement was made,

the attending circumstances, whether throw any suspicion as to

the factum of the statement said to have been made or any other

factor existing in order to contradict the statement said to have

been made as claimed by the prosecution, the nexus of the person

who made the statement to the alleged crime and the parties

involved in the crime, the circumstance which made the person to

come forward with the statement and last but not the least,

whether the said statement fully support the case of the

prosecution.

77/ Learned Counsel for the accused no. 1 Shri. Bhatia has

vehemently opposed this argument with the submission that FIR

is not at all substantive piece of evidence. He also opposed

learned APP on the ground that FIR of victim in the present case

did not contain anything about circumstances leading to his own

death. It was in respect of death of his brother Ghanshyamdas. As

such, the same could not be admitted in evidence and could not


be relied upon. So also, same can not be treated as a dying

declaration under sec. 32(1) of the Evidence Act.

78/ In support of his submission he relied on authorities

reported in AIR 1996 Supreme Court, 372 ( Baldev Singh and

another V/s State of Punjab ) wherein it is laid down that FIR is

not a substantive piece of evidence. He also relied on authority

reported in AIR 1959 Supreme Court, 18 ( Ratan Gond V/s The

State of Bihar ) wherein it was held that the statement made by a

person which did not relate to the cause of his/her death or any

of the circumstances relating to the same was not admissible u/s

32(1) Evidence Act. Similar ratio was also laid down in authority

reported in AIR 1964 Supreme Court 900 ( Moti Singh & Anr

V/s The State of U.P.)

79/ It is pertinent to note that the FIR is a certified copy. As

such, it has presumptive value. No doubt, the contents therein are

not proved. However, it cannot be ignored that the deceased

Inder had filed such a complaint making allegations against the

accused no. 1 of having murdered Ghanshyam. It is a public

document and produced from proper custody. In fact, the case

arising out of earlier murder of Ghanshyam bears Sessions Case

No. 219/1999 and is pending in this Court itself. Therefore, I see

no impediment to accept the same and read the same in evidence.

The earlier murder had occurred over alleged bogus voting during

election. Obviously, the accused no. 1 would be directly affected if

the deceased Inder substantiated his allegations. His position as

President of UMC as well as social standing would be jeopardized.


Hence, clearly, the said FIR Ex. 310 throws light on the very

strong circumstance of motive for the present offense. As such, I

see no impediment in holding that the FIR Ex. 310 is very much

admissible to establish motive on the part of accused no. 1.

80/ As far as the submission of the Ld. Spl. PP on the point of

dying declaration is concerned, the said FIR is totally in respect of

the instances which occurred in connection with the alleged

murder of Ghanshyam. There is no whisper of any reason stated

by the deceased Inder about cause of his own death. Obviously, he

did not have any inkling of things to come. Moreover, the dying

declaration as contemplated by Sec. 32 Evidence Act is in respect

of a statement made by a person on the verge of meeting his

Maker on the cause of his death. In this case, this was not at all

the case at the time when the statement Ex. 310 was filed. As

such, I am inclined to agree with Adv. Bhatia that the same cannot

be considered as Dying declaration. However, it may be

considered a strong circumstance to show motive on the part of

the accused no. 1.

81/ Next, Prosecution has relied on the evidence of PW 12

Sundarlal Bhatija, PW26 Kamal Bhatija to establish that even

before the death of Inder he was apprehending some threat from

accused no.1 and had filed an application before various

authorities and also sought police protection vide application filed

on record at Art. ‘A’. But, Ld. Counsel for accused has severely

objected to the same being read in evidence.

82/ In the present case, it is an admitted position that PW4


Ghanshyam Bendre and another bodyguard were assigned to

protect the deceased Inder on application made by him. This has

been stated even by the Investigation Officer. There is no serious

challenge to this fact. As such, the fact that Inder had written a

letter to the Commissioner seeking police protection cannot at all

be denied. That there was previous enmity between the two

factions is also more or less unchallenged. The fact that police

had provided 24 hour round the clock protection to deceased

Inder unwaveringly points to the fact that even the police as well

as deceased believed that there were real threat or apprehension

to the life of the deceased Inder. Admittedly, he was the first

informant and eye witness in the murder case arising out of the

murder of deceased Ghanshyam, his brother just two months

before the present incident. In other words, this incident took

place only about two months after the earlier murder. Obviously,

accused no. 1 alone would benefit with the only eye witness to

the earlier murder being eliminated. In the circumstances, the

said application dated 4th April, 1990, I feel can safely be read in

evidence and relied upon to establish that there was severe

enmity between the accused no.1 and deceased Inder and his

family. It would not be out of place to mark the same as Ex. 586.

A bare perusal of the same shows a reference to a political bigwig

hatching a plot to assassinate deceased Inder. There is also a

concise description about the bone of contention between accused

no. 1 and uncle of deceased Inder named Gopichand Behrani over

sharing of Presidentship. Hence, in my humble opinion, the letter

Ex. 586 is a clear indicator of one more circumstance which

points towards complicity of the accused no. 1 in the causing


murder of deceased Inder.

83/ Next, the Ld. Spl. P.P Shri Patil drew attention to the

telegrams and letters issued by the PW 12 Sunderlal Bhatija, the

father of deceased Inder and Ghansham. Same are filed on record

vide list Ex. 571. This witness admitted his signatures on the said

letters and telegrams. However, when questioned about the

contents, he pleads ignorance and states that his brothersinlaw

Gopal, Mohan and Thakur Behrani had sent the same. Further on,

this witness admitted having informed Shri Lalkrishna Advani

about the death of his son. The complaint of the present witness

to various authorities contained specific allegation that the

accused no. 1 Pappu Kalani was behind the murder of Ghansham.

This fact is mentioned in his statement before police. Though this

witness has resiled from the same, it has been duly proved by the

Investigation Officer PW 26 Shri Tagtode who recorded the same.

He has reiterated that the same was recorded as narrated by the

PW 12 Sunderlal. It has been marked Ex. 410.

84/ Ld. Spl. P.P Shri Patil submitted that once the witness had

admitted his signatures, it defies logic that he would have signed

the same without being aware of its contents. The PW 12 was a

municipal councilor. He has his own business. He is an educated

person. He is also a political functionary. Obviously, he is a man

of the world and he would not send any letters without even

going through contents or having knowledge of the contents to

such influential persons and higher authorities, considering his

back ground. As such, his denial of the contents in my humble


opinion cannot be accepted at face value. Ld. Spl. P.P Shri Patil

urged that the Court must consider the fact that two of this man's

sons had been murdered in a span of two months. He was himself

90 years old at the time of his deposition. The fear of his

remaining family being harmed or even killed was upper most in

his mind. The absolute fear, nay terror, instilled by Accused no. 1

Kalani in the locality at the time has already come on record. In

these circumstances, the reluctance of this witness to name him is

quite natural. Hence, his statement Ex. 410 is required to be

accepted.

85/ To substantiate this submission, he relied on authority

reported in 2011 CRI.L.J. 2903 (Bhagwan Dass Vs. State (NCT)

of Delhi wherein the Hon’ble Justice Markandeya Katju had

observed that when the mother of the accused, who was the

prime witness in the said case had turned hostile, her subsequent

denial in Court was not believable because she was obviously

interested in saving her son from punishment. In these

circumstances, Hon’ble Justice Katju had observed that:

‘We are of the opinion hat the statement of Smt. Dhillo Devi

to the police can be taken into consideration in view of the

proviso to Section 162(1) Cr.P.C. and her subsequent denial in

court is not believable because she obviously had afterthoughts

and wanted to save her son (the accused) from punishment. In

fact in her statement to the police she had stated that the dead

body of Seema was removed from the bed and placed on the

floor. When she was confronted with this statement in the Court

she denied that she had made such statement before the police.,


We are of the opinion that her statement to the police can be

taken into consideration in view of the proviso of Section 162(1)

Cr.P.C.’

86/ In the present case, the background of the accused no. 1

and the atmosphere that prevails in the entire area due to this, no

common man would stand up and speak against him. Even the

police machinery is reluctant take action or even cognizance of

complaints against him as has come on record through PW 29

Jamil Ahmed. In these exceptional circumstances, in my humble

opinion, respectfully relying on the a.m authority, I am inclined to

hold that considering that the signature has been admitted by

PW12 Sundarlal on complaints and telegrams, prosecution has

established that he had in fact sent those letters. As such, there

seems no impediment on relying on the same.

87/ Having said that, turning to the letters and telegrams

themselves the same clearly outline the entire history of disputes

between the parties culminating in the murder of Ghanshyam and

subsequent developments. No responsible person would address

such letters to senior statesman and police authorities right up to

Commissioner level, making specific allegations against the

President of the Municipal Council who also is a reasonably

influential person without having some genuine apprehension.

Hence, from the over all circumstances brought on record it

appears that Sunderlal had time and again expressed his

apprehensions and sought protection and action from the higher

ups repeatedly. This circumstance is also significant in order to


show that there was not only severe enmity, but also that the PW

12 Sunderlal and his family were receiving threats repeatedly and

had complained about it to various authorities.

88/ Now, admittedly, it is nobody’s case that the accused nos. 3,

6 & 7 had any axe to grind with the deceased Inder. They had no

relations inter se with the deceased. As such, there is no personal

enmity between them or motive to murder him brought on

record.

89/ The prosecution has also examined PW 9 Tukaram, who

was incharge of the vehicle section of Ulhasnagar Municipal

Council and both PW 10 Bharat as well as PW 11 Balu, who were

drivers with Ulhasnagar Municipal Council. The testimony of

these three witnesses is at Ex. 283 to Ex. 285. All the three have

resiled from the prosecution case. However, statements of PW 9

and PW 11 recorded by the I.O are duly proved by him at Ex. 406

& 408. PW 9 was in charge of the vehicle section whereas PW 11

Kakade is a driver with UMC.

90/ Ld.Spl.P.P argued that though both these witnesses have

resiled from the prosecution case, their statements Ex. 406 & 408

must be accepted in the exceptional circumstances of the present

case. Both these witnesses are employed with UMC. The wife of

accused no. 1 was the Mayor of Ulhasnagar Municipal

Corporation at the time of their deposition. Added to this, the

reputation of accused no. 1, who was an MLA at the time, and the

fear instilled by him, would obviously weigh on the mind of the


witnesses. In the circumstances, therefore, it is quite natural that

they would be reluctant to depose against the accused no. 1. In

these exceptional circumstances, once again relying on the ratio

laid down in the case of Bhagwan Dass Vs. State (NCT) of Delhi

(supra) by the Hon'ble Apex Court, I feel, the statement of these

witnesses Ex. 406 & 408 is required to be accepted as they are

duly proved by the I.O Shri Tagtode.

91/ Turning to the said statement Ex. 408, this witness had

clearly stated that in 1990, the accused Bachchi Pande, Baba @

Gabriel, Arshad and others used to visit accused no. 1 frequently

and also stay at the Seema Resort, Kalani Mahal as well as Seema

Apartments. This witness has also stated that he would even serve

tea and meals to them at times. After murder of Ghansham also,

the accused no. 1 had made arrangements for their stay at Seema

Resort and at a guest house in front of the office of the accused

no. 1. He also stated in his statement Ex. 408 that he had taken

accused Baba and one Kishor in Jeep no. MH 05 A 7750

belonging to UMC to the Seema Resort. He also spotted the

accused Arshad, Bachchi, Richard and one Dinesh sitting there on

the lawns.

92/ The PW 9 Tardalkar has admitted that the a.m Jeep belongs

to UMC and PW 11 and others were working as driver. Clearly

therefore, from the evidence of PW 9 and statement of PW 11

Kakade, it is clear that the accused no. 1 was in close contact of

all the three accused nos. 3, 6 & 7 to the extent that they used to

visit and stay with him and all his needs were taken care of by


him including providing Government vehicles for their use.

93/ Adv. Pasbola and Adv. Bhatia for the accused have both

agitated that evidence of hostile witnesses cannot be taken into

account to begin with. Further, their statements before police are

also not admissible according to them. However, in view of the

ratio laid down in the authority reported in Bhagwan Dass I am

inclined to hold that this argument cannot be accepted. In normal

circumstances, as a matter of caution, no doubt Courts do not rely

on such evidence. However, in the present case, considering the

background circumstances as already brought on record and

discussed in the foregoing paragraphs, it is manifest that the

accused had wielded tremendous clout politically in addition to

the terror he invoked in the populace at large. These

circumstances quite clearly are exceptional and it would be

natural that ordinary citizens and more so the employees of UMC

such as PW 9 & 11 would be reluctant to depose against him. In

such a scenario, rejection of the statements Ex. 406 & 408

applying the usual standards of evaluation of evidence, it would

result in total injustice and abuse of legal provisions. The duty of

the Court is to analyse and evaluate the evidence on record in a

circumspect fashion as a whole. Hence, I feel, respectfully relying

on ratio laid down in the case of Bhagwan Dass (supra), the

statements Ex.406 & 408 is required to be accepted.

94/ To sum up, the circumstantial evidence in the form of FIR

in SC no. 219/99, the letters and telegrams addressed by PW12

Sunderlal as well as application of deceased Inder for police


protection as already discussed in the foregoing paragraphs are a

clear indication of the strong rivalry and enmity between the

deceased and the accused no. 1. Coupled with the statements of

PW 9 & PW 11 Ex. 406 & 408, prosecution has established a

nexus between the accused Nos. 3, 6 & 7, who were frequent

guests of accused no. 1. Apparently, they were close associates.

This would amount to a reasonable ground to believe that the

accused nos. 1, 3, 6 & 7 have conspired to commit the alleged

offenses. Especially so, when the accused nos. 3, 6 & 7 have no

personal enmity with the deceased. There is also no explanation

forthcoming on the close association of these accused with

accused no. 1. In this scenario, I am inclined to hold that the

prosecution has successfully established the conspiracy hatched

by them and that the murder was committed as a result of the

same. It follows therefore, that point no. 2 is answered in the

affirmative as against accused nos. 1, 3, 6 & 7 only.

95/ As regards accused nos. 2 & 5, except vague reference

about accused no. 2 having a previous enmity with the deceased

Inder, no specifics are forthcoming. Only there is an alleged

seizure of bullet proof jacket from the house of accused no. 2.

However, even this is not proved. PW2 Balaram Krushna Mhatre

has deposed below Ex.264 on this point. He has arrayed as panch

witness over the panchanama of seizure of bullet proof jacket

from a flat in building known as Seema Apartment as well as the

seizure of jeep. While he has duly proved the seizure panchanama

of the jeep below Ex.265, he has stated that he could not

remember anything about the seizure of the jacket on account of


lapse of long period of time. As such, there is nothing on record

to link accused no. 2 to the alleged offense. Similarly, none of the

prosecution witnesses have stated anything about accused no. 5.

PW 4 has not also identified this accused. In the circumstances,

there is absolutely no evidence against these two accused. Hence,

point no. 2 is answered in the negative as against them.

96/ In view of my affirmative findings on points for

determination as discussed above, as a natural corrolary, accused

nos 1, 3, 6 & 7 are liable for conviction. At this juncture, I stop

judgment for hearing them on the point of sentence. On

application Ex.583, matter is posted tomorrow i.e 30.11.2013 for

hearing on the point of sentence.

Kalyan. (Rajeshwari Bapat Sarkar)

29.11.2013. Adhoc Addl. Sessions Judge,Kalyan.

97/ I heard Ld. Spl. PP Shri Vikas Patil, Ld. Advocate Shri H.L.

Bhatia for accused no.1 and Ld. Advocate Shri Pasbola for accused

nos. 3, 6 and 7 at length on the point of sentence.

98/ Ld. Spl. PP urged that most stringent punishment be

awarded in the present case keeping in mind the antecedents of

the present case. He pointed out that though accused no. 1 was

an MLA, he has been associated with known criminals, gangsters,

and the underworld. He has a history of more than 26 cases filed

against him, out of which there are 8 to 10 cases under the

erstwhile TADA. Out of these, there are 8 cases under section 302


of IPC filed against him apart from offenses under sections 307,

353, 323, 506(2) of IPC etc. Ld. Spl. PP Patil also pointed out that

out of the cases filed against accused no.1, there are also

allegations about him having entered into criminal conspiracy to

murder while he was in jail. One such case is also pending before

TADA Court, Pune in which even the police constable

accompanying the victim was not spared.

99/ Spl. PP Shri Patil also pointed out that the manner in which

the present offense was committed in broad day light by

threatening the police constable assigned to protect the victim

also showed the brazen attitude. He pointed out that at the

relevant time accused no.1 was the sitting President of

Ulhasnagar Municipal Council and used his political and official

clout which resulted in a reign of terror. Obviously, in these

circumstances no witness came forth and no common man had

the gumption to stand up to a person of such stature, especially

coupled with the criminal activities as evident from the record.

This resulted in acquittals in most cases, which in turn, led to an

attitude of complacency in the accused no. 1 that he could get

away with murder. In these circumstances, Ld. Spl. PP Shri Patil

prayed that no leniency be shown to this accused no. 1. He

submits that the intention of the Legislature in awarding

punishment is not only punitive and/or retributive but also

preventive. The sentence should be such as to act as a deterrent to

other wouldbe criminals and send out a message to society at

large that crime would not go unpunished, who ever the

individual involved may be. Hence, he prayed that the accused


no.1 be awarded death penalty. This is the crying need of the day.

100/ As far as accused nos. 3,6 and 7 are concerned, Spl. PP Shri

Patil submitted that these accused have already undergone

sentence after being convicted in other cases. They are members

of known underworld gangs and are also involved in several

offenses along with the present accused no.1. They are

professional assassins with a track record of having committed

several crimes including that of murder, extortion etc. In these

circumstances they are not fit for any leniency being shown. On

the contrary, death penalty to these accused would be the only

just and proper punishment, according to Ld. Spl. PP Shri Patil.

101/ Ld. Spl. P.P has list of cases filed against accused no.1 along

with list Ex.585. A bare perusal of the same shows that a list of

almost 26 offenses is annexed out of which 14 according to Ld.

Advocate for accused no. 1 have been concluded with the accused

no.1 being acquitted. Most of these apparently are filed between

the period 1986 to 199697. Admittedly, accused no.1 was in jail

from 1993 till 2002 which is about over a period of 9 years.

However, the list of offenses and other relevant documents placed

in Court show that even after being out on bail in so many cases,

fresh offenses have been registered against the accused between

the period 2006 to August, 2013. Some of the cases have been

filed against him under IPC and also under the prevention of Anti

Corruption Act.

102/ To counter this, Ld. Counsel for accused no.1 Shri Bhatia


argued that in an offense punishable under section 120B r/w.

302 of IPC, Court had no real choice but to impose life

imprisonment. It is only in the offense falling in the rarest of rare

category that death penalty would be attracted. He argued further

that in the present case, even assuming that allegations are true,

it would only amount to a political murder though the accused

no.1 and the victim are close relatives. One hears of many such

murders taking place at regular intervals every other day. As

such, this is not a case which would fall in the ‘rarest of rare’

category. Therefore, he prayed that minimum sentence of life

imprisonment be imposed.

103/ Apart from this, accused no.1 himself submitted that he is

now well over 60 years of age. He has already suffered from a

paralytic attack as well as a heart attack. He is also suffering

from diabetes and hyper tension. His wife Jyoti Kalani cannot see

properly as she has an eye ailment. She is also nearing 60 years

of age. The accused no.1 is residing only with her and their

divorced daughter. Accused no.1 is the only person available to

look after the wife and divorced daughter. Hence, in view of his

own ill health and that of his wife, leniency be shown. He further

submitted that he was in jail for over 9 years in the present case.

Praying for leniency, he prayed that same term of imprisonment

as already undergone be awarded to him and benefit of set off be

given. Alternatively, he prayed that he be awarded death penalty

as it would be impossible for him to undergo further sentence of

imprisonment and going to jail in the present circumstances.


104/ Ld. Advocate Pasbola for accused nos. 3, 6 & 7 has made

submissions on the point of sentence along similar lines as

Advocate Bhatia to the effect that present case does not at all fall

in the category of rarest of rare cases necessitating death penalty.

To fortify his submissions, he relied on authorities reported in

(2013) 2 Supreme Court Cases (Cri) 611 (Sangeet and another

Vs. State of Haryana) and (2009) 6 Supreme Court Cases, 498

(Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra)

wherein the concept of factors to be taken into consideration to

classify the crime as rarest of rare awarding death penalties have

been discussed in detail. The doctrine of rehabilitation and

doctrine of proportionality was also discussed in detail along with

the mitigating circumstances which ought to be considered. It

was observed in the case of Santosh Kumar Satishbhushan Bariyar

Vs. State of Maharashtra, that

“The doctrine of proportionality for awarding death penalty

on the appellant provides for justifiable reasoning for awarding

death penalty. However, while imposing any sentence on the

accused the court must also keep in mind the doctrine of

rehabilitation. This, considering Section 354(3) of the Code, is

especially so in the cases where the court is to determine whether

the case at hand falls within the rarest of the rare case. There is

nothing before us that shows that the appellant cannot reform

and be rehabilitated.”

105/ In the present case, as already discussed in the main body

of the Judgment, there is a history of bitter political rivalry

between the factions to which accused no.1 belongs and the


faction to which victim belonged. Admittedly, the victim, his

uncles, father and other close relatives as well as the accused no.

1 and his uncle and other close relatives are all politicians and

had at some point or the other occupied official posts like

Municipal Councilor, President of Ulhasnagar Municipal Council,

MLA etc. There was bitter rivalry between the two factions which

led to a spurt of murders of victims belonging to both factions

including the present case. From this, it is clear that this is a

political murder and does not fall within the category of rarest of

rare cases justifying death penalty.

106/ Admittedly, the accused no.1 is out on bail in several

offenses. Accused nos. 3, 6 and 7 have already been convicted

previously and are presently out on bail in other offenses. Despite

this, primafacie it seems that there are other offenses being

registered against all the aforementioned accused, even while

they are out on bail. As such, criminal activities primafacie have

not ceased though fact remains that dozens of offenses are

registered against all the aforementioned accused and they are on

bail in several of the cases arising out of the same. From this it

seems on the very face of it that they have violated conditions of

bail in several cases. Accused nos. 3, 6, 7 are apparently habitual

offenders and their actions do not show any remorse, inspite of

being convicted previously. Also, as far as accused no.1 is

concerned, I have already observed in the body of the judgment

itself that his activities have led to wide spread fear and terror in

the minds of the common man on the street. His record indicates

that possibility of his indulging in criminal activities again cannot


be ruled out. In these circumstances, the following order:

1] Accused no.1 Suresh @ Pappu Budharmal Kalani is hereby

convicted for having committed an offense punishable under

section 120B r/w. 302 of IPC and is sentenced to undergo life

imprisonment and to pay fine of Rs. 5000/ (Rupees Five

Thousand only) i/d. to suffer R.I. for 6 months.

2] Accused nos. 3, 6 and 7 namely Mohammad Arshad

Mohammad Taher, Bacchi @ Ramchandra Sitalaprasad Pande and

Gabrial @ Baba Hana Moben are hereby convicted for having

committed an offense punishable under section 302 r/w.120B of

IPC and are sentenced to undergo life imprisonment and to pay

fine of Rs. 5000/ (Rupees Five Thousand only) i/d. to suffer R.I.

for 6 months.




committed an offense punishable under section 450 r/w. 34 of

IPC and are sentenced to undergo 10 years rigorous

imprisonment and to pay fine of Rs. 5,000/ (Rupees Five

Thousand only) i/d. to suffer R.I. for 6 months.




committed an offense punishable under section 506(2) r/w. 34 of

IPC and are sentenced to undergo 7 years rigorous imprisonment

and to pay fine of Rs. 3,000/ (Rupees Three Thousand only) i/d.

to suffer R.I. for 3 months.





committed an offense punishable under section 353 r/w. 34 of

IPC and are sentenced to undergo 2 years rigorous imprisonment

and to pay fine of Rs. 1,000/ (Rupees One Thousand only) i/d. to

suffer R.I. for 1 month.




committed an offense punishable under section 27(2) of Indian

Arms Act and are sentenced to undergo 1 year rigorous

imprisonment and to pay fine of Rs. 1,000/ (Rupees One

Thousand only) i/d. to suffer R.I. for 1 month.

7] Accused No. 1 namely Suresh @ Pappu Budharmal Kalani is

hereby acquitted for having committed an offense punishable

under sections 109 r/w 302 of IPC.

8] Accused No. 2 namely Dr. Narendra Hemandas

Ramsinghani is hereby acquitted for having committed an offense

punishable under sections 120B, 109, 307, 302 r/w.34 of IPC.

9] Accused No. 3 namely Mohammad Arshad Mohammad

Taher, Accused Nos. 6 and 7 namely Bacchi @ Ramchandra

Sitalaprasad Pande and Gabrial @ Baba Hana Moben are hereby

acquitted for having committed an offense punishable under

sections 109, 307 r/w.34 of IPC.

10] Accused No. 5 Richard Robert Fernandes @ Satish Suvarna

is hereby acquitted for having committed an offense punishable

under sections 120B, 109, 450, 506(2), 353, 302, 307 r/w.34 of

IPC.


11] Sentence of accused nos. 3,6 and 7 to run concurrently.

12] Investigation Officer is directed to file fresh chargesheet

against absconding accused no. 4 Shyamkishor @ Kishorbhai

Murlidhar Garikapatti after securing his presence or original

documents including FIR, spot panchanama as well as exhibited

documents and seized property be handed over to Investigating

Officer to facilitate filing of fresh chargesheet after securing

presence of absconding accused no.4 Shyamkishor @ Kishorbhai

Murlidhar Garikapatti.

13] Copy of this Judgment be furnished free of cost to accused.

(Pronounced in open court.)

Kalyan. (Rajeshwari Bapat Sarkar)

3.12.2013 Adhoc Addl. Sessions Judge,Kalyan.

Documents

Pappu Kalani Inder Bhatija Murder Case Judgement