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Nitin Gorakhnath Sartape vs The State Of Maharashtra

Bombay High Court19 March 2024Revati Mohite Dere · Gauri Godse

Ratio decidendi

The rule this decision rests on

This extensive judgment decides numerous issues across multiple distinct domains. The principal rationes decidendi are: On Circumstantial Evidence in Custodial Death Cases: In cases involving deaths in police custody, courts must adopt a realistic approach rather than an inflexibly technical one, recognizing that direct ocular evidence is rarely available. Once the prosecution proves abduction of the deceased by police custodians, the burden under Section 106 of the Evidence Act shifts to the accused to explain what happened to the deceased. Failure to discharge this burden constitutes an additional incriminating circumstance in the chain already proved by prosecution. On Absence of Motive in Circumstantial Evidence: Failure to prove motive is not always fatal to the prosecution case where a complete chain of other circumstances, proved by cogent and admissible evidence, unerringly points to the guilt of the accused and excludes any hypothesis consistent with innocence. Motive is hidden in the accused's mind and is difficult for the prosecution to prove precisely. On Section 197 CrPC (Sanction for Public Servants): Protection under Section 197 CrPC is available only where the offence committed is directly and reasonably connected with official duty. When the act is camouflaged as an act committed in the course of duty but is in fact unconnected with or opposed to official duty—such as cold-blooded murder presented as a genuine encounter—Section 197 protection does not apply. It is no part of official duty to commit an offence. On Ballistic Evidence: Expert ballistic evidence proving that a specific bullet was fired from a particular firearm is not a weak piece of evidence. Such evidence, coupled with other corroborating circumstances (including movement of the weapon, chain of custody documents, and CDR evidence), constitutes admissible proof of material facts and is sufficiently probative to ground conviction. On Res Gestae (Section 6 of Evidence Act): Disclosures made immediately and spontaneously in the course of events, within a short time of the incident, are admissible as an exception to hearsay. A disclosure made by one witness to another contemporaneously with or immediately following the incident in question qualifies as res gestae, even if the declarant subsequently becomes unavailable (by death), provided the declaration relates to facts that are part of the same transaction. On CDR (Call Detail Records) and Location Evidence: CDRs showing the tower locations from which mobile calls were made, when corroborated by other evidence (including witness testimony, documentary records, and consistency of pattern), are admissible to establish the presence of the mobile user at particular locations at particular times. The convergence of multiple calls from multiple witnesses to the same number, combined with tower data showing consistent locations, supports an inference that a particular person was using that number. On Scope of Appeal Against Acquittal: An appellate court may interfere with an order of acquittal only when the finding is perverse, clearly unreasonable, manifestly erroneous, contrary to the weight of evidence, or based on an erroneous view of law. Interference is justified where the trial court has ignored material evidence, misread the evidence, ignored material documents (including expert reports), or reached conclusions that are palpably wrong. However, the presumption of innocence is reinforced by acquittal, and if two reasonable conclusions are possible on the evidence, the acquittal must not be disturbed. On Chain of Custody of Evidence: Where documentary evidence establishes an unbroken chain of custody of a weapon from issuance to the accused, through its use, seizure, and delivery to forensic experts, with no breaks or gaps in the documented trail, and no credible challenges to the authenticity of intervening documents or signatures, the continuity and integrity of the evidence is established and may be relied upon.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

Digitally signed by SHAGUFTA 2024:BHC-AS:13217-DB SHAGUFTA QUTBUDDIN QUTBUDDIN PATHAN PATHAN Date: J-Apeals-707-2019-group.doc 2024.03.19 17:05:41 +0530 JUDGMENT

Table of Contents (The soft copy of this judgment in PDF is bookmarked to facilitate navigation)

I. BACKGROUND OF THE CASE...............................................................................29 II. SUBMISSIONS OF THE APPELLANTS/ACCUSED.................................................31

- Mr. Sudeep Pasbola for A7 in Cri.Appeal/1080/2019...............................................31

- Mr. Sanjeev Kadam for A4 in Cri.Appeal/944/2013.................................................34

- Mr. Jagdish Shetty for A8, A10, A12 and A21 in Cri.Appeal/942/2013.................41

- Mr. Jagdish Shetty for A5 and A6 in Cri. Appeal/943/2020.....................................47

- Ms. Pradnya Talekar for A9 in Cri. Appeal/151/2021..............................................54

- Mr. Pendse for A11 in Cri. Appeal/707/2019...........................................................69

- Mr. Girish Kulkarni for A17 in Cri. Appeal/1490/2018...........................................72

- Mr. Nagraj Shinde for A20 in Cri. Appeal/86/2021.................................................76

- Mr. Ashwin Thool for the A18 in Cri. Appeal/1239/2019.......................................78

- Mr. Sushil Gaglani for OA2 in Cri. Appeal/104/2021..............................................82

- Mr. Prakash Shetty for A13 in Cri. Appeal/117/2019...............................................90

- Mr. Manish Mazgaonkar for A16 in Cri. Appeal/1493/2018:..................................93

- Mr. Dilip Sitaram Palande (A15) in-person in Cri. Appeal/1242/2018.....................97

- Mr. Waqar Pathan for A3 in Cri. Appeal/1038/2013..............................................110 III. SUBMISSIONS OF THE STATE...........................................................................113 IV. ANALYSIS.............................................................................................................159 A. Sequence of events in detail.................................................................................159 i. C.R. No. 302/2006 registered at the behest of A9.............................................159 ii. C.R. No. 246/2009 registered after SIT was constituted..................................167 B. The Law on Circumstantial Evidence...................................................................182 C. Circumstances and Analysis of each of the circumstance.....................................185 i. FORMATION OF SQUAD..............................................................................190 ii. ABDUCTION.................................................................................................239 iii. ENCOUNTER/CUSTODIAL DEATH/MURDER..........................................362 a. On false FIR and Fabrication of Records/Evidence......................................364 b. Spot panchnama not recorded at the spot...................................................377

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c. No meeting held by A9 in his cabin............................................................390 d. No prior information furnished to superiors by A9.....................................401 e. False station diary entries and documents...................................................411 f. Revolver and railway tickets planted on the deceased.................................420 g. Pool of blood not proportionate to injuries.................................................436 h. Map of Nana Nani Park falsifies the case of a genuine encounter................441 i. Empty found near Magnum Opus...............................................................445 j. Defence Witness..........................................................................................447 iv. BALLISTIC EVIDENCE/FORENSIC EVIDENCE..........................................454 a. Weapon History............................................................................454 b. Allotment and Deposit of Arms and Ammunition in C.R. No. 302/2006....456 c. Investigation vis-a-vis the weapons.............................................................462 d. Movements of Weapons, Arms and Ammunition.......................................473 e. Link evidence and Ballistic Expert's Evidence..............................................477 f. Law with regard to Ballistic Evidence/Forensic Evidence..............................506 v. WRONGFUL CONFINEMENT OF ANIL BHEDA........................................514 vi. PRESSURE TACTICS / MANIPULATION BY ACCUSED PERSONS...........553 vii. CALL DETAIL RECORDS (`CDR')..............................................................607 a. Law vis-a-vis CDR.......................................................................................608 b. Evidence of nodal officers...........................................................................615 viii. CRIMINAL CONSPIRACY..........................................................................672 D. Lacunae in 313...................................................................................................681 E. Sanction under Section 197 Cr.PC - Whether necessary ?...................................691 F. Absence of Motive - Whether fatal?.....................................................................706 G. Section 106 shift of burden of proof - It's applicability.......................................716 H. Conclusion.........................................................................................................731 I. Order.................................................................................................................765 V. APPEAL AGAINST ACQUITTAL...........................................................................769 A. Submissions.........................................................................................................770 B. Scope of Acquittal................................................................................................792 C. Analysis of the Evidence on record......................................................................804 D. Order..................................................................................................................861 VI. CRIMINAL REVISION APPLICATION NO. 182/2023......................................865

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.707 OF 2019

Nitin Gorakhnath Sartape, Aged: 53 years, Residing at U/14, Hanjur Nagar, ... Appellant Pump House, Andheri (E), Mumbai (Org.Accused No.11) Versus The State of Maharashtra, (At the instance of Versova Police Station C.R. No. 246/2009) ... Respondent

WITH CRIMINAL APPEAL NO.86 OF 2021

Sandip S/O Hemraj Sardar [Prisoner], Age-49 yrs, Occu: NIL, R/o. 4/131, B. No. 4, Aram Nagar, Police Colony, Seven Bunglow, ... Appellant Andheri (W), Mumbai- 400 061 (Org.Accused No.20) Versus The State of Maharashtra, (At the instance of SIT Versova Police Station, C.R. No. 245 of 2009, C.C. Nos.886/PW/2010, 1555/PW/2010, 2300/PW/2010, & 2728/PW/2010) ... Respondent

WITH CRIMINAL APPEAL NO.104 OF 2021

S.Q. Pathan / N.S. Chitnis 3/867

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Tanaji Bhausaheb Desai, Age: 50 years, Occupation : Under Suspension, R/o. 7/101, Solitaire 2, Poonam Gardens, Opp. SK Stone, Mira Road (E), Thane - 401107 ... Appellant (Org.Accused No.2) Versus

1. The State of Maharashtra, (At the instance of Versova Police Station)

2. The Inspector of Police Versova Police Station ... Respondents

WITH CRIMINAL APPEAL NO.151 OF 2021

Pradeep Pandurang Suryawanshi, Age: 67 years, Occ. Nil, R/o. Room No. 202, 2nd floor, Ravi Kiran Co-op. Housing Society, ... Appellant Gorai Road, Borivali (West), Mumbai. (Org.Accused No.9)

Versus The State of Maharashtra, (At the instance of Special Investigation Team, Versova Police Station) ... Respondent

WITH CRIMINAL APPEAL NO.942 OF 2013

1. Manoj Mohan Raj @ Mannu, Age: 44 years, Residing at

S.Q. Pathan / N.S. Chitnis 4/867

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Noor Mohd. Chawl, Young Committee, Gundavali Gaothan, Andheri, Mumbai.

2. Sunil Ramesh Solanki, Age : 33 years, Residing at BC Workers' Quarters, B-12 Akurli Road, Samata Nagar, Kandivali (East), Mumbai.

3. Mohamed Shaikh Mohd. Taka Moiddin Shaikh, Age: 44 years, Residing at : B-13, Room N.303, Sector-II, Shanti Nagar, Mira Road, Thane.

4. Suresh Manjunath Shetty, Age: 43 years, Residing at C- 704, ... Appellants Shanti Vidya Nagar, Hatkesh, (Org.Accused Nos.8, Mira Road (East), Thane. 10, 12 and 21)

Versus The State of Maharashtra, (At the instance of SIT (Versova Police Station, C.R. No. 246/2009) C.C. Nos.886/PW/2010, 1555/PW/2010, 2300/PW/2010, & 2728/PW/2010) ... Respondent

WITH CRIMINAL APPEAL NO.943 OF 2013

1. Hitesh Shantilal Solanki @ Dhabbu, Age: 44 years, residing at

S.Q. Pathan / N.S. Chitnis 5/867

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Shardabai Chawl, Room No.1, Prabhat Colony, Vakola, Santacruz, Mumbai.

2. Akhil Shirin Khan @ Bobby, Age: 45 years, residing at Flat No.604, Priyadarshini Park Society, Om Nagar, J. B. Nagar, Sahar Road, Andheri (East).

3. Janardan Tukaram Bhanage, Age: 59 years, residing at F-9, Sector-9, CBD Belapur, Navi Mumbai.

... Appellants As per Court's order dated 23/2/2021, (Orig. Accused Nos. orig. Accused No. 14 stands abated. 5, 6, and 14) (Expired hence abated).

Versus The State of Maharashtra, (At the instance of SIT (Versova Police Station C.R. No. 246/2009) C.C.Nos. 886/PW/2010, 1555/PW/2010, 2300/PW/2010, & 2728/PW/2010) ... Respondent

WITH CRIMINAL APPEAL NO.944 OF 2013

1. Shailendra Dhoopnarayan Pandey @ Pinky, Age : 39 years, residing at Room No.31, Vazir Glass Chawl Committee, Opp. Natraj Studio, ... Appellants Andheri (East), Mumbai. (Orig. Accused No.4) Versus

S.Q. Pathan / N.S. Chitnis 6/867

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The State of Maharashtra (at the instance of SIT (Versova Police Station C. R. No.246/2009) C.C. Nos. 886/PW/2010, 1555/PW/2010, 2300/PW/2010, & 2728/PW/2010) ... Respondent

WITH CRIMINAL APPEAL NO.1038 OF 2013

1.Ratnakar Gautam Kamble @ Rattu, Age: 41 years, residing at E/103, Bandra Police Line, R. K. Patkar Marg, Bandra (West), Mumbai:400050.

2. Arvind Arjun Sarvankar, Age: 50 years, residing at S. V. Road, Kandivali (West), Mumbai.

As per Court's order dated 23/2/2021, orig. Accused No. 22 stands abated. ... Appellants (Expired) (Orig. Accused Nos. 3 and 22)

Versus

The State of Maharashtra (at the instance of SIT (Versova Police Station C. R. No.245/2009) C.C. Nos. 886/PW/2010, 1555/PW/2010, 2300/PW/2010, & 2728/PW/2010) ... Respondent

WITH CRIMINAL APPEAL NO.1080 OF 2019

Vinayak Balasaheb Shinde @ Veenu, Age: 49 years, Occ : Nil,

S.Q. Pathan / N.S. Chitnis 7/867

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Residing at Plot No. 2, Gold Sunit CHS, Kalwa Naka, Opp. Akash Bar, ... Appellant Kalwa Road, District: Thane. (Org.Accused No.7)

Versus The State of Maharashtra, (At the instance of SIT (Versova Police Station, C.R. No. 246/2009) ... Respondent

WITH CRIMINAL APPEAL NO.1177 OF 2019

Devidas Gangaram Hari Sakpal, Age: 52 years, Occ : Service, R/O. 48/6, Worli Police Camp, Sir Pochkhanwala Road, ... Appellant Worli, Mumbai 400 025. (Org.Accused No.13)

Versus The State of Maharashtra, (Through Inspector of Police, Spl. Investigation Team - Versova Police Station - C.R. No. 246/2009) ... Respondent

WITH CRIMINAL APPEAL NO.1239 OF 2019

Anant Balaji Patade, R/O. : Misquitta House, First Floor, Bajaj Road, ... Appellant Vile Parle (W), Mumbai - 400056 (Org.Accused No.18)

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Versus The State of Maharashtra, (through Special Investigating Agency) ... Respondent

WITH CRIMINAL APPEAL NO.1242 OF 2018

Dilip Sitaram Palande, Aged about 57 years, Occ : Nil, R/at 19/604, Sanskruti CHS, Thakur Complex, ... Appellant Kandivali (East), Mumbai. (Org.Accused No.15) Versus The State of Maharashtra, (At the instance of SIT / Versova Police Station, Mumbai (C.R. No. 245/2009) ... Respondent

WITH CRIMINAL APPEAL NO.1488 OF 2018

Pandurang Ganpat Kokam, Age 56 years, R/at : Chawl No. E/2, Room No.5, Gamdevi Compound, Survey No. 79, Mandeer Road, Meera Gavthan, ... Appellant Dist. Thane. (Org.Accused No.19)

Versus The State of Maharashtra, (At the instance of SIT / Versova Police Station, Mumbai C.R. No. 246/2009) ... Respondent

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WITH CRIMINAL APPEAL NO.1490 OF 2018

Ganesh Ankush Harpude, Age: 58 years, R/at :- 6/114, Police Quarters, D.N. ... Appellant Nagar, Andheri (W), Mumbai (Org.Accused No.17) Versus The State of Maharashtra, (At the instance of SIT/Versova Police Station. Mumbai C.R. No. 246/2009) ... Respondent

WITH CRIMINAL APPEAL NO.1493 OF 2018

Prakash Ganpat Kadam, Age : 61 years, R/at : Plot No. 842, B/18, Shree Shiv Samarth CHS, Sector No. 8, Charkop, ... Appellant Kandivali (W), Mumbai - 400 067 (Org.Accused No.16)

Versus The State of Maharashtra, (At the instance of SIT / Versova Police Station, Mumbai C.R. No. 246/2009) ... Respondent

WITH CRIMINAL APPEAL NO.350 OF 2015

S.Q. Pathan / N.S. Chitnis 10/867

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The State of Maharashtra (at the instance of SIT (Versova Police Station C.R.No.246/2009) CC. Nos.

886/PW/2010,1555/PW/2010, ... Appellant 2300/PW/2010 and 2728/PW/2010) (Orig.Complainant)

Versus Pradeep Rameshwar Sharma, Age 49 years, R/o 6th floor, Bhagwan Bhawan, ... Respondent J. B. Nagar, Andheri (East), (Orig.Accused No.1) Mumbai.

WITH CRIMINAL APPEAL NO.854 OF 2013

Ramprasad Vishwanath Gupta, Age 38 years, Occ: Advocate, R/at 87/B/601, Madhukunj CHS, Opp. Pant Walawalkar High School, Mother Dairy Road, Nehru Nagar, Kurla (E), Mumbai 400 024. ... Appellant/Victim Versus

1. Pradeep Rameshwar Sharma, Age 49 years, Occ: Police Inspector, R/at 6th floor, Bhagwan Bhavan, J. B. Nagar, Andheri (E), ... Respondent No.1/ Mumbai 400 067. (Original A/No.1)

2. The State of Maharashtra, (At the instance of S.I.T. through ` Versova Police Station Vide C.R. No. 246/2009) ... Respondent No. 2

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WITH CRIMINAL REVISION APPLICATION NO.182 OF 2023

Ramprasad Vishwanath Gupta, Age 38 years, Occ: Advocate, R/at 87/B/601, Madhukunj CHS, Opp. Pant Walawalkar High School, Mother Dairy Road, Nehru Nagar, Kurla (E), Mumbai 400 024 ... Appellant/Victim Versus

1. Tanaji Bhausaheb Desai, Age 42 years, R.o :- A / 77, Worli Police Camp, Mumbai-400 025.

2. Ratnakar Gautam Kamble @ Rattu, Age: 38 years, R/o :- E / 103, Bandra Police Line, R.K. Patkar Marg, Bandra(W), Mumbai 400 050.

3. Vinayak Babasaheb Shinde @ Veenu, Age: 41 years, R/o:-Plot No.2, Gold Sunit CHS, Kalwa Naka, Opp. Akash Bar, Kalwa Road, District - Thane.

4. Pradeep Pandurang Suryawanshi @ Nana, Age:-57 years, R/o :- Ravi Kiran CHS, 2nd Floor, Room No.202, Opp. Sayali International School, Gorai Road, Borivali (W), Mumbai.

5. Nitin Gorakhnath Sartape, Age: 46 years, R/o:- U/14, Hanjur Nagar, Pump House, Andheri (E), Mumbai.

S.Q. Pathan / N.S. Chitnis 12/867

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6. Devidas Gangaram Hari Sakpal, Age: 45 years, R/o :- 48/06, Worli Police Camp, Mumbai 400 025.

7. Dilip Sitaram Palande, Age: 50 years, R/o :- 19/604, Sanskruti CHS, Thakur Complex, Kandivali(E), Mumbai.

8. Prakash Ganpat Kadam, Age: 53 years, R/o :- A-26, Police Quarters, S.V. Road, Kandivali, Mumbai.

9. Ganesh Ankush Harpude, Age: 49 years, R/o:- 6/114, Police Quarters, D.N. Nagar, Andheri (W), Mumbai.

10.Anand Balaji Patade, Age: 39 years, R/o :-Miskita House, First Floor, Bajaj Road, Vile Parle (W), Mumbai.

11. Pandurang Ganpat Kokam, Age: 49 years, R/o :-E-2/5, Mira Gaothan Mandir Road, Gaodevi Compound, Mira Road, Thane.

12. Sandip Hemraj Sardar, Age: 37 years, R/o:- 131, Building No.4, Aram Nagar, Police Quarters, Seven Bungalow, Andheri (W), Mumbai.

S.Q. Pathan / N.S. Chitnis 13/867

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13. The State of Maharashtra (at the instance of S.I.T. through Versova Police Station Vide C. R. No. 246/09).

... Respondents

Mr. Sudeep Pasbola a/w Mr. Ayush Pasbola i/b Mr. Rahul Arote for appellant in Appeal/1080/2019

Mr. Sanjeev Kadam a/w Ms. Aditi Rajput, Mr. Prashant Raul, Mr.Pratik Deshmukh & Mr. Mayur Sanap i/b Mr. Jagdish Shetty for appellant in Appeal/944/2013

Mr. Jagdish Shetty for Appellant No. 8, 10, 12 & 21 in Appeal/942/2013

Mr. Jagdish Shetty a/w Mr. Mohammed Ayub Shaikh and Mr. U.S.Vanjara for Appellant No. 5 & 6 in Appeal/943/2013

Ms. Pradnya Talekar a/w Ms.Kalyani Mangave a/w Ms. Madhavi Ayyappan i/b Talekar & Associates for appellant in Appeal/151/2021

Mr. C. K. Pendse a/w Ms. Ilsa Shaikh i/b Mr. Shantanu R. Phanse for appellant in Appeal/707/2019

Mr. Girish Kulkarni, Sr. Adv a/w Mr. Kripashankar Pandey and Ms. Mrunmayi Kulkarni i/b Mr. Omkar Ghag for Appellant No.18 in Appeal/1490/2018

Mr. Ashwin Thool a/w Mr. Sarthak Bharsakle, Ms. Archismati Chandramore and Mr. Sushant Mahadik for the appellant in Appeal/1239/2019

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Mr. Nagraj Shinde for Appellant in Appeal/86/2021

Mr. Sushil Gaglani a/w Mr. Dipen Furia for appellant in Appeal/104/2021

Mr. Prakash Shetty a/w Mr. Sarthak Shetty, Mr. Abhishek Singh and Mr.Dnyanesh Bhatkhande for Appellant in Appeal/1177/2019

Mr. Manish Mazgaonkar for appellant in Appeal/1488/2018 and Appeal/1493/2018

Mr. Dilip Sitaram Palande, Appellant No.15 appearing in person in Appeal/1242/2018

Mr. Waqar Pathan a/w Mr.Ayush Pasbola for appellant in Appeal/1038/2013

Dr.Yug Mohit Chaudhry a/w Mr. Harshwardhan Akolkar & Mr.Rohit Vaishya i/b Mr. R.V.Gupta Appellant in Appeal/854/2013

Mr.R.V.Gupta Applicant in person in Revn/182/2023

Mr. Rajiv Chavan, Sr. Adv / Spl.PP a/w Mr. J.P. Yagnik, Addl.PP, Mrs. P.P. Shinde, APP, Mr. Gopal Parab, Ms.Priyanka B. Chavan, Ms. Bhairavi Waradekar and Ms. Priya Mehra for State

Mr. Aabad Ponda, Sr. Adv a/w Mr. Subhash Jadhav, Mr. Chandansingh Shekhawat and Mr. Dilip Rawat for Respondent No.1 in Appeal/350/2015 and Appeal/854/2013

S.Q. Pathan / N.S. Chitnis 15/867

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Mr. Sunil Gaonkar , ACP, CSMT Railway, present

Mr. Vinay Ghorpade, Sr.P.I., D.B.Marg Police Station, present

Mr. Manoj Chalke, PI, Kasturba Marg Police Station, present

Mr. Sunil Lokhande, PI, State CID Konkan Bhavan, present

Mr. K.M.Mallikarjuna Prasanna, Spl, IGP, Establishment, present

CORAM : REVATI MOHITE DERE & GAURI GODSE, JJ.

RESERVED ON : 8th NOVEMBER 2023 PRONOUNCED ON : 19th MARCH 2024

JUDGMENT (Per Revati Mohite Dere, J.) :

1 At the outset, we wish to spell out the names of the

appellants/accused and the acquitted accused as appearing in the

charge-sheet and the trial and would refer to them as original

accused numbers, for the sake of convenience, while deciding all

the appeals. The names of the accused are reproduced herein-

under:

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Ori. Accused Names of Accused Nos. Accused 1 Pradeep Rameshwar Sharma (Police Personnel-Acquitted) Accused 2 Tanaji Bhausaheb Desai (Police Personnel) Accused 3 Ratnakar Gautam Kamble @ Rattu (Police Personnel) Accused 4 Shailendra Dhoopnarayan Pandey @ Pinky (Private Person) Accused 5 Hitesh Shantilal Solanki @ Dhabbu (Private Person) Accused 6 Akhil Shirin Khan @ Bobby (Private Person) Accused 7 Vinayak Babasaheb Shinde @ Veenu (Police Personnel) Accused 8 Manoj Mohan Raj @ Mannu (Private Person) Accused 9 Pradeep Pandurang Suryawanshi @ Nana (Police Personnel)

Accused 10 Sunil Ramesh Solanki (Private Person) Accused 11 Nitin Gorakhnath Sartape (Police Personnel) Accused 12 Mohamed Shaikh @ Mohd. Taka Moiddin Shaikh (Private Person) Accused 13 Devidas Gangaram Hari Sakpal (Police Personnel) Accused 14 Janardan Tukaram Bhanage (Private Person-deceased) Accused 15 Dilip Sitaram Palande (Police Personnel) Accused 16 Prakash Ganpat Kadam (Police Personnel) Accused 17 Ganesh Ankush Harpude (Police Personnel) Accused 18 Anand Balaji Patade (Police Personnel) Accused 19 Pandurang Ganpat Kokam (Police Personnel) Accused 20 Sandip Hemraj Sardar (Police Personnel) Accused 21 Suresh Manju Shetty (Private Person) Accused 22 Arvind Arjun Sarvankar (Police Personnel-deceased)

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2 By these appeals, the appellants (original accused Nos.

2 to 22) have impugned the judgment and order dated 12 th July,

2013, passed by the Ad-hoc Additional Sessions Judge, City Civil

& Sessions Court, Greater Bombay, in Sessions Case No.

317/2010 (S.C.Nos. 510/2010, 673/2010, 781/2010) , convicting

and sentencing them as under:

- Original Accused Nos. 2 to 22 have been convicted for

the offence punishable under Section 120B r/w 364 of the IPC

and are sentenced to suffer imprisonment for life and to pay fine

of Rs.5,000/- each, in default, to suffer rigorous imprisonment for

a period of two years;

- Original Accused Nos. 2 to 22 have been convicted for

the offence punishable under Section 120B r/w 365 of the IPC

and are sentenced to suffer rigorous imprisonment for seven years

and to pay fine of Rs.5,000/- each, in default, to suffer rigorous

imprisonment for a period of one year;

S.Q. Pathan / N.S. Chitnis 18/867

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- Original Accused Nos. 2 to 22 have been convicted for

the offence punishable under Section 120B r/w 368 of the IPC

and are sentenced to suffer rigorous imprisonment for seven years

and to pay fine of Rs.5,000/- each, in default, to suffer rigorous

imprisonment for a period of one year;

- Original Accused Nos. 2 to 22 have been convicted for

the offence punishable under Section 120B r/w 302 of the IPC

and are sentenced to suffer imprisonment for life and to pay fine

of Rs.5,000/- each, in default, to suffer rigorous imprisonment for

a period of three years;

- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been

convicted for the offence punishable under Section 143 of the

IPC and are sentenced to suffer rigorous imprisonment for six

months and to pay fine of Rs.1,000/- each, in default to suffer

rigorous imprisonment for one month;

S.Q. Pathan / N.S. Chitnis 19/867

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- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been

convicted for the offence punishable under Section 144 of the

IPC and are sentenced to suffer rigorous imprisonment for two

years and to pay fine of Rs.1,000/- each, in default to suffer

rigorous imprisonment for three months;

- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been

convicted for the offence punishable under Section 147 of the

IPC and are sentenced to suffer rigorous imprisonment for two

years and to pay fine of Rs.1,000/- each, in default to suffer

rigorous imprisonment for three months;

- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been

convicted for the offence punishable under Section 148 of the

IPC and are sentenced to suffer rigorous imprisonment for three

years and to pay fine of Rs.1,000/- each, in default to suffer

rigorous imprisonment for three months;

S.Q. Pathan / N.S. Chitnis 20/867

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- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been

convicted for the offence punishable under Section 149 r/w 364

of the IPC and are sentenced to suffer imprisonment for life and

to pay fine of Rs.5,000/- each, in default to suffer rigorous

imprisonment for two years;

- Original Accused Nos.4, 7, 8, 10, 12 and 21 have been

convicted for the offence punishable under Section 149 r/w 365

of the IPC and are sentenced to suffer rigorous imprisonment for

seven years and to pay fine of Rs.5,000/- each, in default to suffer

rigorous imprisonment for one year;

- Original Accused Nos.2 to 8, 10, 12 and 21 have been

convicted for the offence punishable under Section 364 r/w 149

of the IPC and are sentenced to suffer imprisonment for life and

to pay fine of Rs.5,000/- each, in default to suffer rigorous

imprisonment for two years;

- Original Accused Nos.2 to 8, 10, 12 and 21 have been

convicted for the offence punishable under Section 365 r/w 149

S.Q. Pathan / N.S. Chitnis 21/867

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of the IPC and are sentenced to suffer rigorous imprisonment for

seven years and to pay fine of Rs.5,000/- each, in default to suffer

rigorous imprisonment for one year;

- Original Accused Nos.9, 11, 13 to 20 and 22 have been

convicted for the offence punishable under Section 364 r/w 109

r/w 120B of the IPC and are sentenced to suffer imprisonment for

life and to pay fine of Rs.5,000/- each, in default to suffer

rigorous imprisonment for two years;

- Original Accused Nos.9, 11, 13 to 20 and 22 have been

convicted for the offence punishable under Section 365 r/w 109

r/w 120B of the IPC and are sentenced to suffer rigorous

imprisonment for seven years and to pay fine of Rs.5,000/- each,

in default to suffer rigorous imprisonment for one year;

- Original Accused Nos.2 to 22 have been convicted for

the offence punishable under Section 368 r/w 109 r/w 120B of

the IPC and are sentenced to suffer rigorous imprisonment for

S.Q. Pathan / N.S. Chitnis 22/867

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seven years and to pay fine of Rs.5,000/- each, in default to suffer

rigorous imprisonment for one year;

- Original Accused Nos.2, 3, 5, 13 and 16 have been

convicted for the offence punishable under Section 344 r/w 34 of

the IPC and are sentenced to suffer rigorous imprisonment for

three years and to pay fine of Rs.1,000/- each, in default to suffer

rigorous imprisonment for three months;

- Original Accused Nos.4, 6 to 12, 14, 15, 17 to 22 have

been convicted for the offence punishable under Section 344 r/w

109 r/w 120B of the IPC and are sentenced to suffer rigorous

imprisonment for three years and to pay fine of Rs.1,000/- each,

in default to suffer rigorous imprisonment for three months;

- Original Accused Nos.2, 9 and 15 have been convicted

for the offence punishable under Section 302 r/w 34 of the IPC

and are sentenced to suffer imprisonment for life and to pay fine

of Rs.5,000/- each, in default to suffer rigorous imprisonment for

three years;

S.Q. Pathan / N.S. Chitnis 23/867

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- Original Accused Nos.2 to 8, 10 to 14 and 16 to 22 have

been convicted for the offence punishable under Section 302 r/w

109 r/w 120B of the IPC and are sentenced to suffer

imprisonment for life and to pay fine of Rs.5,000/- each, in

default to suffer rigorous imprisonment for three years;

- Original Accused Nos.2, 3, 9, 11, 13, 15 to 20 and 22

have been convicted for the offence punishable under Section 201

r/w 34 of the IPC and are sentenced to suffer rigorous

imprisonment for three years and to pay fine of Rs.1,000/- each,

in default to suffer rigorous imprisonment for three months;

- Original Accused Nos.2 to 8, 10, 12, 14 and 16 have

been convicted for the offence punishable under Section 201 r/w

109 r/w 120B of the IPC and are sentenced to suffer rigorous

imprisonment for three years and to pay fine of Rs.1,000/- each,

in default to suffer rigorous imprisonment for three months;

S.Q. Pathan / N.S. Chitnis 24/867

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- Original Accused No.9 has been convicted for the

offence punishable under Section 201 of the IPC and are

sentenced to suffer rigorous imprisonment for three years and to

pay fine of Rs.1,000/- each, in default to suffer rigorous

imprisonment for three months;

- Original Accused Nos.2 to 8, 10 to 22 have been

convicted for the offence punishable under Section 201 r/w 109

r/w 120B of the IPC and are sentenced to suffer rigorous

imprisonment for three years and to pay fine of Rs.1,000/- each,

in default to suffer rigorous imprisonment for three months;

- Original Accused Nos.20 and 22 have been convicted for

the offence punishable under Section 174(A) of the IPC and are

sentenced to suffer simple imprisonment for three years and to

pay fine of Rs.1,000/- each, in default to suffer simple

imprisonment for three months;

- Original Accused Nos.2, 3, 7, 9, 11, 13, 15 to 20 and 22

have been convicted for the offence punishable under Section 119

S.Q. Pathan / N.S. Chitnis 25/867

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of the IPC and are sentenced to suffer rigorous imprisonment for

three years and to pay fine of Rs.1,000/- each, in default to suffer

rigorous imprisonment for three months.

3 Vide the same judgment and order, Pradeep Sharma

(OA1) was acquitted of all the offences punishable under the

following Sections :

- Sections 120B r/w 364, 365, 368 and 302 of the IPC;

- Section 368 of the IPC;

- Section 364 r/w 109 r/w 120B and 365 r/w 109 r/w 120B of the IPC;

- Section 368 r/w 109 r/w 120B of the IPC ;

- Section 344 r/w 34 of the IPC;

- Section 302 r/w 34 of the IPC;

- Section 302 r/w 109 r/w 120B of the IPC;

- Section 201 r/w 109 r/w 120B of the IPC;

- Section 119 of the IPC.

4 Against the acquittal of Pradeep Sharma (OA1), the

State of Maharashtra, as well as the complainant-Ramprasad

S.Q. Pathan / N.S. Chitnis 26/867

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Gupta (brother of the deceased) have filed Criminal Appeal No.

350/2015 and Criminal Appeal No. 854/2013 respectively.

Similarly, the complainant-Ramprasad Gupta (brother of the

deceased) has also filed the aforesaid Revision Application, being

Criminal Revision Application No.182/2023, as against 12

appellants/accused, seeking enhancement of their sentence, i.e.

from life to death.

5 Both the said appeals and the Criminal Revision

Application have been tagged alongwith the aforesaid appeals

filed by the appellants/accused against their conviction and as

such, all the appeals/revision are heard together. Considering that

the evidence in all the appeals is the same, all the appeals i.e.

appeals against conviction and the acquittal appeal, are decided

together, as the findings are overlapping.

6 Before we proceed, we may note that during the

pendency of the aforesaid appeals, A14 (Janardan Tukaram

S.Q. Pathan / N.S. Chitnis 27/867

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Bhanage) and OA22 (Arvind Arjun Sarvankar) expired and as

such, the appeals filed by them stands abated, only qua them.

I. BACKGROUND OF THE CASE

7 The prosecution case, in brief, is that Ramnarayan

Vishwanath Gupta @ Lakhanbhaiya @ Pandeyji (hereinafter

referred to as 'Ramnarayan' for the sake of brevity) was abducted

alongwith his friend Anil Bheda on 11 th November 2006 at

around 12:30 hrs. by the police in a Qualis; from there, they

were taken to Bhandup; then to D.N. Nagar Police Station; that

from D.N. Nagar Police Station, the police took Ramnarayan

Gupta to Nana Nani Park and threw his dead body there, fired

again and showed that Ramnarayan Gupta was killed in a

genuine encounter, when infact, it was a fake encounter. It is

further the prosecution case, that Anil Bheda was wrongfully

confined by the police and others, so that, he would not spill the

beans regarding their abduction and furnish other details.

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8 Whereas, the case of the appellants/accused, in brief,

is that Ramnarayan Gupta was never abducted and that pursuant

to a tip-off received i.e. secret information, a trap was laid and

that Ramnarayan Gupta was killed, when he fired at the police

party, in retaliation/self defence and as such, it was a genuine

encounter. The prosecution case of abduction of Ramnarayan and

Anil Bheda was completely denied by the appellants/accused.

9 The details of both the versions will be set-out in

greater detail, when we proceed to analyse the evidence on

record.

10 Before we advert to the prosecution and the defence

case in detail as well as the evidence on record, we would like to

place on record the submissions canvassed by the learned counsel

for each of the appellants/accused on the one hand and the

learned Spl.PP for the State and the learned counsel for the

complainant on the other, in the aforesaid appeals.

S.Q. Pathan / N.S. Chitnis 29/867

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II. SUBMISSIONS OF THE APPELLANTS/ACCUSED

A. Submissions of Mr. Pasbola, learned counsel for the

appellant-Vinayak Babasaheb Shinde @ Veenu (OA7)

in Criminal Appeal No.1080/2019:

11 Mr. Pasbola, learned counsel for Vinayak Shinde

(A7) submitted that there are three versions which have come on

record in the said case i.e. police (accused) version; the

prosecution case; and, the case of Aruna Bheda (PW40). He

submitted that infact, the encounter had taken place as stated by

the police i.e. accused and that it was a genuine encounter and

that the police have been falsely implicated in the said case.

According to Mr. Pasbola, the prosecution case as far as the

appellant A7) is concerned, rests on circumstantial evidence and

that too, only in the form of Call Detail Records/Subscriber Detail

Records (CDR/SDR), which, by itself, is not sufficient to point to

the complicity of the appellant in the said case. He further

submitted that there are several

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contradictions/improvements/omissions that have come on record

inter se i.e. in the evidence of Ramprasad Gupta (PW1), Ganesh

Iyer (PW2), Shyamsunder Gupta (PW3), Dheeraj Mehta (PW38),

Aruna Bheda (PW40) and Shankar @ Girish Dalsingh (PW57)

and as such, in light of the same, the prosecution case of

abduction of Ramnarayan and Anil Bheda cannot be accepted. He

further submitted that there is no iota of evidence to show that

Ramnarayan and Anil Bheda were abducted from Sector 9, Vashi

as alleged, inasmuch as, there are no eye-witnesses to the same

and that the evidence relied upon by the prosecution, is based on

hearsay evidence, which is inadmissible. He submitted that the

appellant has been falsely implicated by Special Investigating

Team (SIT) (prosecuting agency). According to Mr. Pasbola, the

witnesses examined to prove CDRs i.e. the Nodal Officers of

various companies, cannot be relied upon, having regard to the

discrepancies that have come in their evidence with respect to

different addresses of the same numbers and the change in the

Base Transceiver Station (BTS) or Cell Towers address. He

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submitted that Section 65B Certificates as mandated in law, have

also not been furnished or produced by the Nodal Officers

examined in this behalf.

11.1 Mr. Pasbola further submitted that as far as Exh.

688-entry made by Sanjay Apage, PN No. 30704 (PW90), is

concerned, the same cannot be relied upon, as it appears to be

fabricated and that the said entry by itself, is not sufficient to infer

that the appellant (A7) was using the mobile number attributed

to him, at the relevant time. He further submitted that there is no

evidence to show that Avinash Shinde is the brother of the

appellant, in whose name the mobile stood, inasmuch as, no

question under Section 313 of the Code of Criminal Procedure

(Cr.PC) has been put to the said witness. He further submitted

that as far as CDR evidence is concerned, the learned Judge has

put a composite question pertaining to all Exhibits, exhibited by

the witnesses to all the accused and as such, the same will have to

be excluded from consideration under Section 313 Cr.PC Thus,

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according to Mr. Pasbola, from the circumstances brought on

record, as far as the appellant is concerned, it is difficult to draw

an irresistible conclusion as against the appellant, vis-a-vis, his

involvement in the commission of the crime and as such, he be

acquitted of all the offences for which he has been convicted.

B. Submissions of Mr. Sanjeev Kadam, learned counsel for the

appellant - Shailendra Dhoopnarayan Pandey @ Pinky (OA4)

in Criminal Appeal No. 944/2013:

12 Mr. Sanjeev Kadam, learned counsel appearing for the

aforesaid appellant submitted that although the appellant has

been convicted for the charge under Section 302 of IPC i.e. for

the death of Ramnarayan, there is no material whatsoever to

connect the appellant with the alleged fake encounter. He further

submitted that to prove conspiracy with respect to abduction of

Ramnarayan and Anil Bheda, the prosecution relied on the

evidence of PW38-Dheeraj Mehta; PW40-Aruna Bheda; PW54-

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Changdeo Godse (Nodal Officer, Vodafone); PW64-Sunil Sawant

(Nodal Officer); PW84-Satish Rane (Special Metropolitan

Magistrate, who conducted the Test Identification Parade);

PW88-Mohammad Usman Shaikh, an employee of a mobile shop,

on whose name a sim card was obtained and handed over by

PW96-Mehamood Shaikh (mobile shop owner) to the appellant-

Shailendra; and PW96-Mehamood Shaikh (mobile shop owner)

who was declared hostile, since he did not support the

prosecution case. He submitted that the evidence of none of the

witnesses i.e. PW1-Ramprasad Gupta; PW2-Ganesh Iyer or PW3-

Shyamsunder Gupta can be relied upon, inasmuch as, the same is

contradictory, inter se, inconsistent and contrary to the evidence

of PW40-Aruna Bheda, with respect to abduction. He further

submitted that the appellant is not a police officer nor allegedly

had any motive to kill Ramnarayan. He submitted that although

the appellant is alleged to be an informer of the police, the

prosecution has not produced any material in support thereof.

He further submitted that the prosecution case rests entirely on

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circumstantial evidence and that the hearsay evidence of the

witnesses, with respect to abduction, cannot be relied upon, being

inadmissible. He submitted that the prosecution is relying on

CDRs of the appellant to show that the appellant was in touch

with the other co-accused on the date of the incident i.e. 11 th

November 2006, and that, that by itself is not sufficient to point

to the complicity of the appellant. He further submitted that

none of the witnesses have either identified the appellant in the

test identification parade held nor in the Court. According to Mr.

Kadam, the test identification parade itself suffers from several

infirmities and lacunae, inasmuch as, the photograph of the

appellant was published in the newspapers. Learned counsel

relied on Exh. 782 i.e. the DNA Newspaper, which had published

the photograph of the appellant on 12 th January 2010, whereas,

the test identification parade was held on 20 th January 2010. He

submitted that PW40-Aruna Bheda has not identified the

appellant and it was Anil Bheda (now deceased), who had

identified A4-Shailendra, however, in view of the demise of Anil

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Bheda and for the reasons set-out herein-above, the test

identification parade cannot be relied upon. He further

submitted that no reliance can be placed even on the evidence of

PW88-Mohammad Usman Shaikh, an employee of a mobile shop

of which PW96-Mehamood Shaikh is the owner, inasmuch as,

PW96-Mehamood Shaikh has not supported the prosecution case

i.e. that the sim card was purchased in the name of PW88-

Mohammad Usman Shaikh and was handed over by PW96-

Mehamood Shaikh to the appellant. He further submitted that

the evidence of PW88-Mohammad Usman Shaikh shows that the

card was allegedly purchased on his name, by using his documents

in the year 2007 (mobile sim No. XXXXXX6311), whereas, the

incident is of November 2006.

12.1 Learned counsel further submitted that the

prosecution had examined PW103-Amit Patel to link the

appellant with Janardan Bhanage (A14), vis-a-vis motive,

however, the said witness was declared hostile. He submitted that

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suggestions were also made to this witness in his cross-

examination, that he was an informer of Pradeep Sharma (OA1)

and that Janardan Bhanage (A14) had disclosed to him about

bumping off, of Ramnarayan (deceased) and that he was close to

Janardan Bhanage (A14), however, the said suggestions have been

denied by the said witness. Learned counsel further relied on the

evidence of PW65-Yogesh Shreekrushna Rajapurkar (Nodal

Officer, Vodafone), to show the discrepancy between Exhibits

571 and 575. He submitted that the evidence of the said witness

is not trustworthy in view of the evidence that has come on

record with respect to locations. According to him, the

annexures to Exhibits 571 and 575 are signed by the signatory

only on the letterhead and not on the annexures, and as such, the

annexures which pertain to the CDRs, cannot be relied upon.

12.2 According to Mr. Kadam, the evidence of the Nodal

Officers examined by the prosecution, in particular, the evidence

of PW62-Rakeshchandra Prajapati (Nodal Officer of Loop

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Mobile), shows that the co-accused Hitesh Solanki (A5) had

called Shailendra Pandey (A4) twice on 11th November 2006 i.e.

at 16:30 hrs. and 17:07 hrs. He submitted that timings as stated

aforesaid do not match with the time when the alleged abduction

took place. He submitted that even otherwise, it is the

prosecution case that accused No.5's phone was being used by

Pradeep Sharma (OA1). He further submitted that the

prosecution has failed to prove that Shailendra Pandey (A4) was

part of the second incident i.e. the incident of encounter which

took place at Nana Nani Park.

12.3 Mr. Kadam further submitted that the same set of

questions were put to all the accused in their 313 statements and

that no specific question which was incriminating as against the

appellant was put to him that he was at Vashi on 11 th November

2006 at 16:30 hrs. and 17:07 hrs. He further submitted that

although two sim cards were allegedly used by Shailendra Pandey

(A4), one standing in his own name and one given to him post the

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incident, no CDR has been collected with respect to the said sim

cards, post the incident.

12.4 In conclusion, Mr. Kadam submitted that the trial

Court has erred in observing that Shailendra Pandey (A4) was

physically present at Nana Nani Park, Andheri, though he was

not present at the said spot. Mr. Kadam relied on two judgments

of the Apex Court in Shankar v. State of Maharashtra1 vis-a-vis

motive in a case of circumstantial evidence and Ravindra Singh v.

State of Punjab2, vis-a-vis requirement of 65B Certificate, in

support of his submission.

12.5 He further submitted that considering that there is no

evidence to connect the appellant-Shailendra Pandey (A4) to the

abduction or to the subsequent elimination of Ramnarayan, and

considering the fact, that the appellant had no motive nor any

role was attributed to him, the appellant be acquitted of the

offences for which he has been convicted.

1 2023 SCC OnLine SC 268 2 (2022) 7 SCC 581

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C. Submissions of Mr. Jagdish Shetty, learned counsel for

the appellants - Manoj Mohan Raj @ Mannu (A8); Sunil

Solanki (A10); Mohammed Shaikh @ Takka (A12) and Suresh

Shetty (A21) in Criminal Appeal No.942/2013:

13 Learned counsel appearing for appellants-Manoj @

Mannu (A8), Sunil Solanki (A10), Mohammed Shaikh @ Takka

(A12) and Suresh Shetty (A21) submitted that all the said

appellants are private persons, who have been prosecuted

alongwith the police officers for the abduction of Ramnarayan

and Anil Bheda; wrongful confinement of Anil Bheda; and, for

the death of Ramnarayan. He submitted that the only evidence as

against the said appellants was the evidence of Anil Bheda, with

respect to abduction, however, in view of Anil Bheda's demise,

there is no other witness who speaks about the complicity of the

said appellants, in the abduction of Ramnarayan and Anil Bheda.

He further submitted that there are no CDRs of the said persons

collected by the prosecution.

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13.1 As far as the evidence of Parmanand Desai (PW14) is

concerned, learned counsel for the appellants submitted that the

evidence of this witness will reveal that Sunil Solanki (A10) was

working as a sweeper in the Mumbai Municipal Corporation;

that on 9th November 2006, he had taken half-day leave; that on

10th November 2006, a weekly-off and on 11 th November 2006,

casual leave and that the same, by itself cannot be said to be

incriminating.

13.2 As far as Sujit Mhatre (PW16) is concerned, Mr.

Shetty submitted that the said witness has not supported the

prosecution case entirely. He submitted that his evidence is silent

with respect to Sunil Solanki (A10), taking Qualis from him, for

his personal use in November 2006. He further submitted that

the evidence of the panch i.e. Maruti Naikade (PW13) with

respect to the seizure of the Qualis vehicle in March, 2010,

allegedly used in the abduction, suffers from several infirmities,

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inasmuch as, there is discrepancy between the chassis and engine

number, as reflected in Exh. 182 (panchnama) and Exh. 183 (the

verification report). He submitted that hence, there is no clarity

with respect to the description of the vehicle so seized. He

further submitted that the prosecution had examined Sundar

Tendulkar (PW9), who had purchased the vehicle from Sujit

Mhatre (PW16) and who had later sold the same to Mrugesh

Negandhi (PW10). He submitted that the evidence of these

witnesses do not show as to when Sujit Mhatre (PW16) was in

possession of the alleged Qualis vehicle, which was used in the

commission of the abduction. He submitted that neither is the

evidence of Mrugesh Negandhi (PW10) relevant, inasmuch as, the

said witness had purchased the Qualis used in the commission of

the offence from Sundar Tendulkar (PW9). According to Mr.

Shetty, the prosecution ought to have examined Ashok Shah from

whom Sujit Mhatre (PW16) had allegedly purchased the Qualis

vehicle. Learned counsel for the appellants submitted that

although the RTO Officer i.e. Sandesh Chavan (PW48) was

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examined to show the ownership of the vehicle, the document

which is at Exh. 359 would only show that in 2006, Ashok Shah

was the owner of the vehicle and that in 2007 i.e. on 21 st

February 2007, Sujit Mhatre (PW16) was the owner. He

submitted that the said evidence of Sandesh Chavan (PW48)

contradicts the evidence of Sujit Mhatre (PW16), who has stated

that he was in possession of the Qualis vehicle of Ashok Shah in

2006 itself, and that he had given the said Qualis vehicle (used in

abduction) and another Qualis vehicle to the accused in

November 2006.

13.3 According to the learned counsel for the appellants,

the Special Executive Magistrate-Satish Rane was examined as

PW84, for proving the test identification parade held by him,

however, his evidence would only show that Anil Bheda

(deceased) had identified Manoj @ Mannu (A8) and Sunil Solanki

(A10) on 23rd March 2010 (Exh. 643) and had identified

Mohamed Shaikh @ Mohd. Taka (A12) on 28th June 2010 (Exh.

S.Q. Pathan / N.S. Chitnis 43/867

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645). He submitted that since Anil Bheda, before his evidence

could be recorded, had died, in the absence of any substantive

evidence, the identification by Anil Bheda, of these accused

cannot be relied upon.

13.4 As far as Mohammad Usman Shaikh (PW88) is

concerned, learned counsel for the appellants submitted that the

said witness had turned hostile. He submitted that the

prosecution, even otherwise, had examined this witness to

establish/show the connection between Shailendra Pandey @

Pinky (A4) and Mohamed Shaikh @ Mohd. Taka (A12), post the

incident i.e. in 2007. He submitted that even the identification of

Mohamed Shaikh @ Mohd. Taka (A12) by Amit Jambotkar

(PW8), cannot be said to be incriminating.

13.5 Mr. Shetty submitted that PW110- K.M.M. Prasanna,

in his cross-examination, had stated that psychological tests were

conducted on Ramprasad Gupta (PW1) and three other witnesses

S.Q. Pathan / N.S. Chitnis 44/867

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i.e. PW2-Ganesh Iyer, Anil Bheda and PW40-Aruna Bheda,

however, the results were inconclusive and hence, the evidence of

these witnesses, including that of PW40-Aruna Bheda cannot be

relied upon.

13.6 Mr. Shetty submitted that the learned trial Judge has

convicted Manoj @ Mannu (A8), Sunil Solanki (A10),

Mohammed Shaikh @ Takka (A12) and Suresh Shetty (A21) ,

only on the basis of the progress reports submitted by

K.M.M.Prasanna (PW110), there being no other material to

connect the appellants with the alleged crime.

13.7 In conclusion, he submitted that the evidence on

record is not sufficient to point to the complicity of the appellants

in the offence, inasmuch as, the circumstances on record that, the

vehicle used in the commission of the offence i.e. for abduction,

has not been identified; that the prosecution has not proved who

was present in the vehicle at the relevant time; and that there are

S.Q. Pathan / N.S. Chitnis 45/867

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no CDRs to show the presence of the appellants at the time of

abduction of Ramnarayan and Anil Bheda. He submitted that in

this view of the matter, the appellants be acquitted of the offences

for which they have been convicted.

D. Submissions of Mr. Jagdish Shetty, learned counsel for the

appellants - Hitesh Solanki @ Dhabbu (A5) and Akhil Khan @

Bobby (A6) in Criminal Appeal No.943/2020:

14 Mr. Shetty, learned counsel for Hitesh Solanki @

Dhabbu (A5) and Akhil Khan @ Bobby (A6) submitted that the

prosecution has failed to prove that PSI Ghorpade (PW108) had

visited Thane Central Jain, pursuant to an order passed by the

Court granting him permission to obtain the specimen

handwriting of Hitesh Solanki @ Dhabbu (A5), having regard to

the admission of this witness in his cross-examination i.e. there is

no record as to when PSI Ghorpade visited the jail.

S.Q. Pathan / N.S. Chitnis 46/867

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14.1 Learned counsel further submitted that the evidence

of Ravsaheb Ikke (PW76) cannot be relied upon, inasmuch as, his

statement under Section 161 was not recorded by SIT, during

investigation. He submitted that hence, having regard to the

same, the Station Diary entry i.e. Exh. 620 and 620-A produced

by the said witness dated 28th September 2010 at 19:40 hrs.

stating therein, that he received a telephonic call from PSI

Ghorpade, that Hitesh Solanki @ Dhabbu (A5) had refused to

give his specimen handwriting, cannot be relied upon.

14.2 Mr. Shetty, learned counsel for the aforesaid

appellants (A5 and A6), submitted that to prove wrongful

confinement of Anil Bheda, the prosecution examined Sumant

Bhosale (PW32); Milind More (PW55); Naresh Phalke (PW45);

Madan More (PW43); and Aruna Bheda (PW40), however, their

evidence does not inspire confidence.

S.Q. Pathan / N.S. Chitnis 47/867

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14.3 As far as Sumant Bhosale (PW32) is concerned,

learned counsel for the appellants submitted that the said witness

has not identified either Hitesh Solanki @ Dhabbu (A5) or others.

He submitted that as far as Milind More (PW55) is concerned,

the said witness has stated in his evidence, that he was knowing

Hitesh Solanki @ Dhabbu (A5), as Hitesh, who was working for

Pradeep Sharma (OA1) and nothing more than that. He

submitted that the said witness has not stated that Hitesh Solanki

@ Dhabbu (A5) was present with them in the Qualis when he

went to Bhatwadi at Ghatkopar, as well as to Mid-town Hotel,

Andheri.

14.4 As far as Akhil Khan @ Bobby (A6) is concerned,

there is no mention of him, by the said witnesses.

14.5 As far as Naresh Phalke (PW45) is concerned, learned

counsel submitted that the said witness has neither identified nor

spoken about the appellants i.e. Hitesh Solanki @ Dhabbu (A5)

S.Q. Pathan / N.S. Chitnis 48/867

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and Akhil Khan @ Bobby (A6).

14.6 As far as Vishwajit Chavan (PW53) is concerned,

learned counsel for the appellants submitted that the said witness

has only stated that Hitesh Solanki @ Dhabbu (A5), was working

for Pradeep Sharma (OA1) and that Hitesh was with Anil Bheda

(deceased) in Mid-town hotel, Andheri. Mr. Shetty submitted

that although the said witness has stated that at the behest of

Pradeep Suryawanshi @ Nana (A9), he went to Mid-town Hotel

on three dates i.e. on 1st February, 4th February and 19th March

2010, however, despite the requirement of making notings in

station diary, when leaving, there is no station diary entry of the

same.

14.7 Mr. Shetty further submitted that although Aruna

Bheda (PW40) has identified Hitesh @ Dhabbu (A5), as having

taken her and Anil Bheda to Kolhapur, however, thereafter, the

prosecution has not proved that Hitesh @ Dhabbu (A5) had

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accompanied Anil Bheda. He submitted that the hotel in which

Aruna Bheda (PW40) and her husband-Anil Bheda were kept in

Kolhapur, has not been disclosed by her in her statement before

the SIT, nor have the room numbers been disclosed. He further

submitted that the prosecution has not brought on record the

hotel register where Aruna Bheda (PW40) and her husband - Anil

Bheda were allegedly confined by Hitesh @ Dhabbu (A5) in a

Hotel in Kolhapur. He further submitted that neither the

Manager nor any employee of the hotel in Kolhapur, where

Aruna Bheda (PW40), her husband-Anil Bheda and Hitesh @

Dhabbu (A5) stayed, have been examined and as such, there is no

material to show that Hitesh @ Dhabbu (A5) had taken Aruna

Bheda (PW40) and Anil Bheda to Kolhapur and confined them.

He further submitted that there are several discrepancies in the

evidence of Aruna Bheda (PW40) with respect to when she was

taken to Kolhapur by Hitesh @ Dhabbu (A5). According to Mr.

Shetty, it is alleged by the prosecution that Hitesh @ Dhabbu (A5)

had given Aruna Bheda (PW40), a prepared affidavit (Exh. 335)

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to be presented before the Magistrate in the 176 inquiry,

however, except for the say of Aruna Bheda (PW40), there is no

other material to show that the said affidavit was prepared by

Hitesh @ Dhabbu (A5). It is further submitted that thus, the

prosecution has failed to prove that Aruna Bheda (PW40) and her

husband-Anil Bheda were wrongfully confined in Kolhapur by

Hitesh @ Dhabbu (A5). He further submitted that the same

would be evident from the cross-examination of Aruna Bheda

(PW40), that she did not disclose the said fact i.e. of her being

taken by Hitesh @ Dhabbu (A5) against her will and wishes,

despite having several opportunities to disclose the same.

14.8 As far as Jayesh Kesariya (PW50) is concerned,

learned counsel for the appellants submitted that there is an

omission with respect to the presence of Hitesh @ Dhabbu (A5)

at the Collector's Office when Anil Bheda and Aruna Bheda

(PW40) had gone for recording their statements before the

Special Land Acquisition Officer (SLAO) and as such, the

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evidence of Jayesh Kesariya (PW50), does not further the

prosecution case.

14.9 As far as Ajendrasingh Thakur (PW87), Senior PI

attached to D.N. Nagar Police Station is concerned, learned

counsel submitted that all that the said witness has stated is that

Hitesh @ Dhabbu (A5) and Akhil Khan @ Bobby (A6) used to

come to Pradeep Sharma's (OA1) office at D.N. Nagar Police

Station and that he had seen Hitesh @ Dhabbu (A5) and Akhil

Khan @ Bobby (A6) sitting there with Pradeep Sharma (OA1).

He submitted that the said evidence cannot be stated to be

incriminating as against Hitesh @ Dhabbu (A5) and Akhil Khan

@ Bobby (A6).

14.10 It is further submitted that the prosecution had

examined Geetanjali Datar (PW68), to show that Geetanjali Datar

(PW68) had made three calls on a mobile number i.e.

XXXXXX2987 standing in Hitesh @ Dhabbu's (A5) name, but

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was purportedly being used by Pradeep Sharma (OA1) i.e. the two

calls on 11th November 2006 (one outgoing and one incoming)

and one on 15th November 2006 (outgoing call), however, the

said witness has turned hostile.

14.11 Thus, Mr. Shetty submitted that considering the

aforesaid, i.e. there being no material on record qua the

appellants - Hitesh Solanki @ Dhabbu (A5) and Akhil Khan @

Bobby (A6), they be acquitted of all the offences.

E. Submissions of Ms. Pradnya Talekar, learned counsel for the

appellant-Pradeep Suryawanshi @ Nana (A9) in Criminal

Appeal No. 151/2021:

15 Ms. Talekar, learned counsel for the appellant-

Pradeep Suryawanshi (A9) submitted that the appellant has been

falsely implicated in the present case and that he is incarcerated in

jail for more than 13 years. She submitted that it was a genuine

encounter, which has been painted as a fake encounter, with no

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material whatsoever to support the same. She submitted that in

fact, the evidence and documents on record would clearly show

that the encounter was a genuine encounter. She submitted that

the deceased-Ramnarayan @ Lakhanbhaiya was a member of the

Chhota Rajan gang and had several antecedents and was a wanted

accused in several cases registered against him. According to Ms.

Talekar, on 11th November 2006, at about 16:45 hrs, the

appellant received information that Ramnarayan @ Lakhanbhaiya

was going to meet his accomplices at Nana Nani Park, 7

Bungalow at Andheri (W), pursuant to which, he informed his

superiors at about 17:15 hrs i.e. to the ACP of the D.N. Nagar

Division-Arun Awate (PW63); DCP, Zone-IX-Vinaykumar Choube

(PW61) and Addl. C.P., West Region-Bipin Bihari (PW78). It is

the case of the appellant that his seniors ordered him to arrest

Ramnarayan @ Lakhanbhaiya, with the help of officers and

policemen of the Versova Police Station, pursuant to which, at

17:40 hrs, the appellant contacted PI Sonawane of the Versova

Police Station, for help and requested them to send officers to

S.Q. Pathan / N.S. Chitnis 54/867

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D.N. Nagar Police Station i.e. API Sartape (A11), PSI Harpude

(A17) and Police Naik Kokam (A19). She submitted that the said

officers of Versova Police Station reported to the appellant; that

about 18:20 hrs the appellant (A9) called his staff i.e. API

Sarvankar (A22), API Palande (A15) and PSI Patade (A18) to his

cabin. Accordingly, the appellant and the said three officers

collected their weapons and ammunition; and the appellant

briefed all the officers about the information so received. She

submitted that pursuant thereto, the squad reached the spot on

motorcycles and rickshaws at 19:10 hrs; that one squad stood at

the west side of the Nana Nani Park; and the other on the east

side of the Nana Nani Park; that thereafter, an auto-rickshaw

stopped near an electric pole and that Lakhanbhaiya got down

from the said rickshaw; that the secret informant signaled at the

appellant, that the passenger was the wanted accused-

Ramnarayan, pursuant to which, all were alerted about the

arrival of Ramnarayan. She submitted that thereafter, both the

groups moved forward to arrest Ramnarayan, however, on being

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alerted, he pulled out his firearm and pointed at the appellant;

that the appellant warned him not to fire as they were Police

officers and asked him to surrender; that despite being warned,

Ramnarayan fired a round in the direction of the appellant, which

the appellant evaded by ducking; thereafter, API Sarvankar (A22)

also is alleged to have warned Ramnarayan, however, despite the

same, he fired in the direction of API Sarvankar (A22). Ms.

Talekar submitted that in order to save themselves and the

civilians, the police fired five rounds at Ramnarayan i.e. the

appellant fired two rounds; and API Sarvankar (A22), API

Palande (A15) and API Sartape (A11) fired one round each. She

submitted that since Ramnarayan was seriously injured, the police

control room was informed of the same and a wireless van was

requested, to shift Ramnarayan to the hospital. She submitted that

the appellant directed API Sarvankar (A22) and API Sartape

(A11) to accompany Ramnarayan to Cooper hospital. She

submitted that on reaching the hospital i.e. the OPD of Cooper

Hospital at 20:57 hrs, Ramnarayan was declared dead by the

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casualty medical officer at 21:00 hrs Pursuant thereto, the

appellant lodged an FIR with the Versova Police Station, which

was registered vide C.R. No. 302/2006. Ms. Talekar submitted

that during the course of recording of the appellant's statement

i.e. FIR, the appellant received the news, that Ramnarayan had

expired and as such, the same was incorporated in the FIR.

Thereafter, investigation was carried out by PI Mohandas Sankhe

(PW39) upto 15th November 2006.

15.1 In support of her submission that Ramnarayan Gupta

@ Lakhanbhaiya was a wanted criminal, learned counsel Ms.

Talekar relied on the antecedents that have come on record of

Ramnarayan. She submitted that Ramnarayan was a wanted

accused and since a secret information was received of his coming

to Nana Nani Park, it was decided to apprehend him at Nana

Nani Park, where he was to come to meet his accomplices. She

submitted that all the evidence and documents collected would

clearly show that it was a genuine encounter and not a fake

encounter, as alleged by the prosecution. Learned counsel relied

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on the evidence of Dattatray Sankhe (PW31) and Mohandas

Sankhe (PW39) to show that both the officers who investigated,

never thought that the encounter was not a genuine encounter.

Ms. Talekar relied on the order passed by the National Human

Rights Commission ('NHRC'), New Delhi, on a complaint made

by Ramprasad Gupta (brother of Ramnarayan) to show that the

Commission had relied on an inquiry report of the SLAO and

Magistrate and the observation therein, that the encounter of

Ramnarayan was a genuine encounter and as such, the action of

the police was protected by law.

15.2 Ms. Talekar submitted that if the prosecution case as

suggested that Ramnarayan was done to death, prior to bringing

him to Nana Nani Park was true, blood would not have been

found on the spot. She submitted that not a single witness has

been examined by the prosecution to show that the deceased was

not alive, when he came to Nana Nani Park.

S.Q. Pathan / N.S. Chitnis 58/867

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15.3 Ms. Talekar, learned counsel for the appellant (A9)

further submitted that the fact that the encounter was a genuine

encounter has also been supported by the witnesses examined by

the prosecution i.e. by PW51-Anil More, PW63-Arun Awate,

PW31-Dattatray Sankhe, PW35-Kiran Sonone, PW83-Umesh

Revandkar (Exh.-633) and PW26-Anil Kadam. She submitted

that the evidence of the said witnesses fortifies the appellant's case

of a genuine encounter.

15.4 Ms. Talekar further submitted that the report of the

NHRC (Exh. 928-A) dated 1st April 2010 reveals that the

encounter was a genuine encounter. She, thus, submitted that the

documents and the evidence on record will show that the

encounter was a genuine encounter, inasmuch as, the same has

been corroborated by several documents i.e. spot panchnama,

station diary entries, log book of the police van, finding of

railway tickets on the deceased's person. She submitted that the

blood group of the deceased was Group B and the blood found

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on the spot, was also Group B and as such, the same fortifies the

appellant's case, that the encounter took place at the spot. She

further submitted that the evidence of some of the witnesses

would reveal that the deceased was alive, whilst being

shifted/carried from Nana Nani Park to Cooper Hospital and as

such, from the documents and evidence on record there was no

reason to doubt that the encounter was not a genuine encounter.

15.5 Ms. Talekar submitted that no sanction under Section

197 Cr.PC was taken, inasmuch as, the appellant, a police officer

was on duty at the time of the incident and that the weapon used

in the alleged crime was a service revolver. Learned counsel

relied on C.R. No.302/2006, registered at the instance of the

appellant (A9) with the Versova Police Station stating therein,

that the deceased had attempted to fire at the police, who were

discharging their official duty, pursuant to which the deceased

was shot. In support of the said submission i.e. the appellant was

on official duty, and as there was a danger to the passersby,

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Ramnarayan was shot at, learned counsel relied on the Duty

Register (Exh. 208A), Entries regarding issuance of service

revolver to the appellant (Exhibits 216A and 221A); FIR

No.302/2006 (Exhibits 278 and 281); entries in the Station

Diary of the Versova Police Station (Exhibits 282A, 285A, 287A,

297A, 301A, 617A); and, the Muddemal Register (Exhibits -

298A, 299A, 300A). Learned counsel, with respect to the said

entries, also relied on the evidence of the witnesses i.e. PW20-

Sanjivan Shinge, PW22-Vishnu Khatal and PW23-Shavaka Tadvi.

She submitted that considering that the appellant was on official

duty and the incident had taken place in exercise of their right to

private defence, sanction under Section 197 of Cr.PC was

essential.

15.6 As far as motive is concerned, learned counsel for the

appellant submitted that the prosecution had failed to establish

motive for the appellant to commit the murder of Ramnarayan.

She submitted that the witnesses examined on the point of motive

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i.e. PW57-Girish Nepali and PW108-Vinayak Ghorpade have

not named the appellant nor have thrown any light vis-a-vis

motive. She submitted that infact, the witnesses who could have

spelt out the motive i.e. Urmish Udhani, Anandibai Deshmukh,

have not been examined by the prosecution, for reasons best

known to them.

15.7 As far as abduction of the deceased and Anil Bheda,

are concerned, learned counsel for the appellant submitted that

there are no eye-witnesses vis-a-vis abduction nor is there any

circumstantial evidence adduced by the prosecution to show that

the appellant was in anyway involved in the abduction of the

deceased and Anil. She submitted that the prosecution examined

PW1-Ramprasad Gupta, PW3- Shyamsunder Gupta PW38-

Dheeraj Mehta, PW40-Aruna Anil Bheda and PW57-Shankar @

Girish Dalsingh to prove abduction, however, none of the said

witnesses have attributed any role to the appellant, much less,

named him. She submitted that a perusal of the evidence of the

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said witnesses will reveal contradictions in their version and as

such, it is evident that the prosecution had failed to prove

abduction of the deceased and Anil Bheda.

15.8 As far as the incident of firing on the deceased at

Nana Nani Park is concerned, learned counsel for the appellant

submitted that the prosecution had failed to adduce any

evidence/material to indicate that the deceased was killed at some

other place i.e. before being taken to Nana Nani Park. She

further submitted that there is no material to indicate the

presence of the appellant at any place other than Nana Nani Park

at the relevant time. She submitted that the CDR of the

appellant shows his presence at the Nana Nani Park and as such

supports the case of a genuine encounter.

15.9 She further submitted that the evidence on record, to

the contrary, supports the defence case of a genuine encounter.

Learned counsel also relied on the evidence of DW1-Manohar

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Kulpe, examined by the appellant. According to the learned

counsel for the appellant, the prosecution had failed to

substantiate its case i.e. of throwing the body of the deceased near

Nana Nani Park, so as to stage the encounter.

15.10 She further submitted that the SIT constituted

pursuant to the order of this Court, had deliberately not

examined the material witnesses, which could have shown that

the encounter was a genuine encounter.

15.11 As far as the alleged confinement of Anil Bheda is

concerned, learned counsel for the appellant submitted that the

prosecution has failed to produce any evidence that Anil Bheda

was 'confined' or restrained. In this connection, learned counsel

relied on the evidence of 4 witnesses examined by the prosecution

i.e. PW32-Sumant Bhosale, PW43-Madan More, PW45-Naresh

Chalke, PW55-Milind More. She submitted that the evidence of

the said witnesses does not reveal that Anil Bheda was wrongfully

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confined. She further submitted that there are serious

flaws/contradictions in the evidence of the said witnesses inter se.

15.12 According to Ms. Talekar, there are several flaws in

the prosecution case and that a few circumstances here and there,

would not connect the appellant with the alleged offences. She

submitted that the witnesses examined by the prosecution were

either pressurized or were called upon to submit a report in

favour of the prosecution. She further submitted that there are no

records/entries in any diary made by the investigating officers of

SIT, whilst investigating the case, casting a doubt on the

credibility of the investigation.

15.13 Learned counsel for the appellant further submitted

that although lie detector test was conducted pursuant to an order

passed by this Court, on PW1 - Ramprasad Gupta, PW2- Ganesh

R Iyer, Anil Bheda, Aruna Bheda at the FSL, Kalina, the said

test reports were not produced by the SIT, despite the test results

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being inconclusive.

15.14 Learned counsel for the appellant further submitted

that the important witnesses have not been examined by the

prosecution i.e. Rambabu Lodh (an eye-witness with respect to

firing on the deceased at Nana Nani Park); Nilesh (eye witness to

abduction), Shekhar Sharma, Vinayak Raundal (photographer

who clicked photographs of the spot of encounter at Nana Nani

Park), the News Reporter of Aaj Tak, who telecasted the coverage

of news of the encounter, Urmish Udhani (builder), Anandibai

and Janaya Seth for motive, Ramrajpal Singh (eye-witness), and

Subhash (informer).

15.15 As far as ballistic experts' report is concerned, Ms.

Talekar submitted that the said report does not inspire

confidence, inasmuch as, the ballistic expert i.e. PW86 - Gautam

Ghadge has given two contradictory ballistic reports. She further

submitted that the hand wash of the deceased was taken but no

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controlled samples were taken to show that the encounter was

not a genuine encounter.

15.16 As far as CDRs are concerned, Ms. Talekar submitted

that the requisite certificate under Section 65B of the Evidence

Act was not produced and as such in the absence of the said

certificate, the oral evidence was inadmissible. She submitted that

even otherwise, the CDRs does not show that the appellant (A9)

was present at the time of abduction, other than at Nana Nani

Park.

15.17 Ms. Talekar relied on several judgments of the Apex

Court to show that an act done in the exercise of right of private

defence was protected; that motive was a necessity in a case of

circumstantial evidence, and that the same was not proved by the

prosecution; that certificates under Section 65B of the Evidence

Act, despite being mandatory, were not produced; certain

incriminating questions under 313 Cr.PC were not put; and, that

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prior sanction under Section 197 Cr.PC was not taken. She also

questioned the evidence of the expert witness and the evidentiary

value of the Expert's evidence.

F. Submissions of Mr. Pendse, learned counsel for appellant-

Nitin Sartape (A11) in Criminal Appeal No.

707/2019:

16 Mr. Pendse, learned counsel for the appellant - Nitin

Sartape (A11) submitted that the prosecution has neither proved

the presence of the appellant at the spot when the encounter took

place nor has proved that it was the appellant who fired at the

deceased, though alleged by the prosecution. He submitted that

the appellant was at the police station at the relevant time and

had gone to the spot, post the incident of firing, to Nana Nani

Park. In support of the said submission, learned counsel for the

appellant relied on the evidence of PW17-Hanumant Girappa

Kambli from whom the weapon was taken and the evidence of

PW19-Jyotiram Phasale with whom the weapon was deposited

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after the incident. According to Mr. Pendse, the entries made in

the register by the appellant, of having taken the weapon and

deposited, post the incident and relied upon by the prosecution,

have been concocted and that the appellant disputes the signature

made against the said entry i.e. Exh. 197. He submitted that the

prosecution has not brought on record any contemporaneous

record to show that PW17-Hanumant and PW19-Jyotiram were

on duty on the said day i.e. on 11 th November 2006 and were in-

charge of the disbursement of the arms / depositing of the arms.

16.1 Mr. Pendse, further submitted that the timings

mentioned in the said entries appear to have been inserted

subsequently. According to the learned counsel for the appellant,

the evidence of PW26-Anil Kadam, the driver of Mobile Van-1

attached to Versova Police Station, will reveal that on receiving a

wireless message at 20:18 hrs, he reached the Nana Nani Park at

20:28 hrs and thereafter left for Cooper Hospital alongwith the

appellant (A11) and Arvind Arjun Sarvankar (A22) and reached

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Cooper Hospital at about 20:57 hrs. He submitted that if the

said timings were taken into consideration, it would be evident

that the entry made in the Arms Register with respect to

depositing of the arm / fire weapon by the appellant at 22:00 hrs,

appears to be doubtful and as such the said entry cannot be relied

upon.

16.2 Mr. Pendse further submitted that even the evidence

of PW60-Maruti Patil, who was attached to the Magazine Section

at Naigaon Armory Depot, would reveal that there is an

overwriting on one of the pages and in addition, at Exh. 497. He

submitted that the entry made by Maruti Patil is relevant,

considering his evidence that if the ammunition is less, the

weapon is not allowed to be deposited. He submitted that what

was deposited were 30 bullets and that the said number 30 has

been scored off and in its place 29 was written. He further

submitted that therefore, the procedure adopted by PW60-

Maruti for taking weapon/ammunition, is consistent with the

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appellant's case that he had not been to Nana Nani Park at the

time of the incident and as such had not fired at the deceased. He,

therefore, submitted that the prosecution had failed to prove that

the appellant (A11) fired at the deceased. He further submitted

that even the ballistic report does not support the prosecution

case, inasmuch as, the report shows that the bullet which was

found at the spot allegedly fired from the appellant's revolver, did

not match his revolver but matched with the revolver used by

Tanaji Desai (A2).

16.3 As far as abduction of the deceased and Anil Bheda

and confinement of Anil Bheda, are concerned, he submitted that

there are no allegations vis-a-vis the appellant. According to Mr.

Pendse, the station diary entry of D.N. Nagar Police Station,

relied upon by the prosecution, would have only corroborative

value and in the absence of any substantive evidence being led,

reliance cannot be placed on the said station diary entry.

S.Q. Pathan / N.S. Chitnis 71/867

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G. Submissions of Mr. Girish Kulkarni, learned Senior

Counsel, for the appellant-Ganesh Ankush Harpude

(A17) in Criminal Appeal No. 1490/2018:

17 Mr. Girish Kulkarni, learned senior counsel for the

appellant-Ganesh Harpude (A17) submitted that the appellant

was admittedly not present at the time of abduction nor are there

any allegations of wrongful confinement of Anil Bheda, qua the

appellant. He submitted that the evidence on record would only

show that the appellant was seen at the spot, post the incident

that took place at Nana Nani Park. In support of the same,

learned senior counsel relied on the evidence of PW26-Anil

Kadam, who was attached to Versova Police Station and was

working on Mobile Wireless Van No.1 at the relevant time; the

evidence of PW51-Anil More, Police Constable attached to

Versova Police Station; the evidence of PW77-Mahendra Tatkare,

attached to Versova Police Station and who was on Mobile-II of

Versova Police Station, at the relevant time; the evidence of

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PW81-Pramod Shreedhar Sawant, Wireless Operator to "Peter

Mobile" attached to Versova Police Station; and the evidence of

PW83-Umesh Yashwant Revandkar, Head Constable attached to

the Detection Branch. He submitted that the evidence of the said

witnesses will show that the appellant (A17) was seen at the spot,

post the incident alongwith PW39- PI Mohandas Narayan

Sankhe and other officers. He submitted that the witnesses have

stated that the appellant was collecting the soil mixed with blood

from the spot, at the relevant time and that he had asked PW51-

Anil More to collect the blood sample and cartridge which was

lying at the spot. He submitted that except the appellant being

present, there is no material to show that the appellant was part

of the team that had gone from D.N. Nagar Police Station

alongwith A9-Pradeep Suryawanshi, pursuant to the secret

information received by A9, that a member of the Chhota Rajan

Gang was going to come to the spot to meet his accomplice.

17.1 Mr. Kulkarni submitted that prior to the date of the

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incident, the appellant was on leave for about 2 to 5 days. In

support of the same, learned senior counsel relied on the Station

Diary Entry i.e. Exh.-720A (page 5495). Mr. Kulkarni submitted

that according to the charge, the appellant is only alleged to have

abetted the commission of the offence of Section 302 of the IPC,

when infact, the 15th charge is only qua accused Nos.1, 2, 9 and

15, for the offence punishable under Section 302 r/w 34 of the

IPC.

17.2 Mr. Kulkarni further submitted that if the CDR of the

appellant would have been collected by the prosecution, the

same would have revealed that the appellant was present at the

beat, at a nearby area and the same could have been considered as

a contemporaneous document and would have then disproved the

prosecution case, that the appellant was at Nana Nani Park. He

submitted that even the evidence of PW108- Vinay Baburao

Ghorpade would show that the appellant had not carried any

weapon with him. Learned counsel relied on the admission of

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PW110-K.M.M. Prasanna in para 360 of his evidence, that the

appellant (A17) had not carried any weapon with him and that

the said admission was made after perusing the weapon register

and entries therein. Learned counsel submitted that as per charge

15, which is qua accused Nos.1, 2, 9 and 15, OA1-Pradeep

Sharma has been acquitted from the same and as such the

prosecution case, then becomes suspect. Learned counsel relied

on the judgment of the Apex Court in the case of Aghnoo

Nagesia v/s State of Bihar 3 that a confession made by accused is

not admissible qua co-accused i.e. alleged confession by A9 in the

FIR i.e. C.R. No.302/2006, that it was a genuine encounter.

H. Submissions of Mr. Nagraj Shinde, learned counsel for the

appellant-Sandip Hemraj Sardar (A20) in Criminal Appeal

No. 86/2021:

18 Mr. Nagraj Shinde, learned counsel for the appellant-

3 AIR 1966 SC 119

S.Q. Pathan / N.S. Chitnis 75/867

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Sandip Hemraj Sardar (A20), a police constable attached to D.N.

Nagar Police Station at the relevant time, submitted that the

prosecution has not proved its case against the appellant. He

submitted that the evidence of PW20-Sanjivan Bhimrao Shinge,

In-charge Head Constable attached to D.N. Nagar Police Station,

reveals that it was his (PW20) duty to maintain duty register and

that the appellant was assigned with the duty of passport

verification on 11th November 2006. He submitted that the same

is corroborated by duty register entry, which is at Exh. 208A. Mr.

Shinde further submitted that the evidence of PW87-Ajendrasingh

Thakur, Senior P.I., attached to D.N. Nagar Police Station, would

show that the station diary entries at Exhibits 669 and 670,

would reveal the persons (accused), who had gone for the

operation and of their return from the said spot i.e. Nana Nani

Park. He submitted that the name of the appellant is absent in

both the entries. He submitted that apart from the FIR registered

at the behest of A9-Pradeep Pandurang Suryawanshi @ Nana i.e.

C.R. No.302/2006, there is no material to connect the appellant

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with the alleged crime, inasmuch as, there is no corresponding

entry as stated above in Exhibits 669 and 670. He submitted that

apart from the aforesaid, there is no other role attributed to the

appellant to show that he was present at the spot i.e. Nana Nani

Park, at the time of the alleged murder and as such, the appellant

cannot be convicted on the basis of the said evidence.

I. Submissions of Mr. Ashwin Thool, learned counsel for the

appellant - Anand Balaji Patade (A18) in Criminal Appeal

No. 1239/2019:

19 Mr. Thool, learned counsel for the appellant -

Anand Balaji Patade (A18) submitted that the prosecution has not

adduced any evidence to show that the appellant had either kept

a watch on the deceased on 10 th November 2006; or that he was

involved in the abduction of the deceased-Ramnarayan and Anil

Bheda from Vashi on 11th November 2006; or that the appellant

was present at Bhandup, where allegedly the deceased and Anil

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Bheda were taken at around 13:14 hrs; or at D.N.Nagar Police

Station, where allegedly the deceased and Anil Bheda were

brought at around 14:00/14:30 hrs; or that the appellant was

attached to Pradeep Sharma's squad; or that the appellant was in

anyway concerned with the confinement of Anil Bheda, post the

alleged murder of Ramnarayan.

19.1 Mr. Thool, does not dispute the entries made in the

register to show that the appellant had collected one pistol and 6

bullets from the D.N. Nagar Police Station and its return i.e. the

weapon alongwith 6 bullets. He, however, states that the

appellant had not used either the firearm or the bullets. He

further submitted that although the record shows that the

appellant was part of the team of A9-Pradeep Suryawanshi, the

appellant was not present at the time of the alleged incident and

had come subsequently i.e. post the incident at Nana Nani Park.

He submitted that at the highest, the appellant can be convicted

for destruction of evidence but not for conspiracy. Mr. Thool,

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does not dispute the entries made in the duty register, which is

deposed to by PW20-Sanjivan Bhimrao Shinge i.e. Exh.-208A

and Exh. 209A; nor does he dispute the evidence of PW22-

Vishnu Baburao Khatal, District Hawaldar who was working in

the Arms and Ammunition Division of D.N. Nagar Police Station,

with respect to having taken the arms and ammunition on 11 th

November 2006 at 18:00 hrs; nor does he dispute the evidence of

PW23-Shavaka Saibu Tadvi, also working as a District Hawaldar,

Arms and Ammunition, with D.N. Nagar Police Station, with

respect to the arms and ammunition being returned by the

appellant. According to Mr. Thool, the appellant was not

involved in either the conspiracy as alleged by the prosecution or

in the murder of Ramnarayan. He submitted that the appellant

was only at the wrong place at the wrong time.

19.2 Mr. Thool, further submitted that the evidence of

PW2 - Ganesh R Iyer and PW62-Rakeshchandra Prajapati,

Nodal Officers of BPL Mobile would show that the mobile

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number i.e XXXXXX2362 belonged to Mangesh Sawant and

that the prosecution had failed to bring any evidence on record to

show that the appellant was using the said number. He therefore

submitted that the CDR brought on record by the prosecution to

show that the appellant was in touch with the other accused

cannot be relied upon, since the number belonged to Mangesh

Sawant.

19.3 Mr. Thool, submitted that there was no blood found

on the head of the deceased and only the bullet injury on the

stomach was a fresh injury. In support thereon, the learned

counsel relied on the spot panchnama, to show that there was

only one pool of blood i.e. pool of blood measuring only 1 foot.

He submitted that there should have been atleast 2 pools, one

from the head and another from the bullets sprayed on the

deceased. Hence, he submitted that since there was no blood flow

from the head wound, the same would indicate that the said

wound was caused atleast an hour or more, prior to the actual

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incident. He submitted that the possibility of the incident having

taken place prior, has not been investigated by the prosecution

nor has the prosecution investigated whether any 3 rd person had

shot the deceased, and the accused only to take the credit, had

shown that the deceased was fired by them in an encounter. He

submitted that therefore, in the absence of evidence, either direct

or circumstantial, the appellant cannot be convicted for the

offence of conspiracy to cause the death of the deceased.

J. Submissions of Mr. Sushil Gaglani, learned counsel for the

appellant-Tanaji Bhausaheb Desai (OA2) in Criminal Appeal

No. 104/2021:

20 Mr. Gaglani, learned counsel for the appellant -

Tanaji Bhausaheb Desai (A2) submitted that there are no eye-

witnesses to the alleged abduction of the deceased-Ramnarayan

and Anil Bheda; their wrongful confinement, and thereafter, in

the alleged murder of Ramnarayan at Nana Nani Park. He

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submitted that it is alleged by the prosecution; (i) That the

appellant was keeping a watch on Anil Bheda on 10 th November

2006, at his residence i.e. Sector 29, Vashi, Navi Mumbai; (ii) that

the appellant was present at the Bhandup Complex from where

the deceased and Anil Bheda were made to sit in different vehicles

and then taken to D.N. Nagar Police Station; (iii) that the

appellant was a part of the raiding party at Nana Nani Park; and

(iv) that the appellant had also allegedly confined Anil Bheda at

Bhatwadi on 12th November 2006. As far as the appellant keeping

a watch on Anil Bheda on 10th November 2006 is concerned,

learned counsel for the appellant submitted that there is no

witness with respect to the same. He submitted that it is alleged

by the prosecution that the appellant was keeping a watch on Anil

Bheda's house, as the deceased was staying there, however, the

evidence of PW40-Aruna Bheda, is to the contrary i.e. it shows

that the deceased was not residing with them and that for the first

time, she saw the deceased on 11 th November 2006. He

submitted that having regard to the same, the question of the

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appellant keeping a watch on Anil Bheda's house does not arise.

20.1 Mr. Gaglani, further submitted that the appellant is

alleged to have been using mobile No. XXXXXX1323 (BPL

Mobile), however, the prosecution has not produced Section 65B

Certificate as mandated and hence, the evidence of PW62-

Rakeshchandra Prajapati cannot be relied upon. He submitted

that even otherwise, if the CDR is stated to be incriminating,

there are no proper questions put to the appellant under Section

313 Cr.PC. In this connection, learned counsel pointed out to the

question i.e. question No.318, to show that a composite question

was asked and not a specific question. He submitted that hence,

the prosecution has failed to prove that the appellant was keeping

a watch on the whereabouts of the deceased and as such on Anil

Bheda's house.

20.2 As far as the second allegation made by the

prosecution is concerned, i.e. that the appellant was present at

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Bhandup Complex, after the deceased and Anil Bheda were

abducted, the prosecution has not adduced any evidence that the

deceased and Anil Bheda were brought to Bhandup Complex, nor

has it been brought on record that the deceased and Anil Bheda

were together on 11th November 2006 and that they travelled to

Bhandup Complex and from there to D.N. Nagar Police Station

and thereafter, the deceased was taken to Nana Nani Park. He

submitted that the prosecution has not brought on record any

evidence, with respect to what happened or transpired at

Bhandup and has only relied on CDRs, which by itself is not

sufficient.

20.3 Mr. Gaglani, learned counsel for the appellant further

submitted that there is a discrepancy between the location of

Trisha Collection and also with respect to the existence of Trisha

Collection. He submitted that the e-mail sent by SIT to PW62-

Rakeshchandra Prajapati, shows that the location of the appellant

at Sector 9-A, Vashi was sought, whereas, Trisha Collection is in

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Sector 9. He submitted that Sector 9 and Sector 9-A are different

areas and that the same has been categorically deposed to, by

PW38-Dheeraj Ugamraj Mehta. He submitted that the CDR was

sought of Sector 9-A and not of Sector 9, from where the

abduction took place. According to the learned counsel, Trisha

Collection does not exist and that the prosecution has not

adduced any evidence in support thereof i.e. the owner of Trisha

Collection - Dilip Jain, has not been examined, to show the

existence of the said premises. Learned counsel relied on the

admission of PW110 - K.M.M. Prasanna, in his evidence to show

that the SIT had not collected any document to show the

existence of Trisha Collection and where Trisha Collection was

situated, thus making the prosecution case of abduction, doubtful.

He submitted that it has come in the evidence of PW110 -

K.M.M.Prasanna that the spot was shown by PW1 i.e. the

complainant and not by Anil Bheda, and that Anil Bheda was

reluctant to show the place. He submitted that although it is

alleged by the prosecution that efforts were made to trace Nilesh,

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however, no document was produced in support thereof.

20.4 As far as wrongful confinement is concerned, it is the

prosecution case that after the deceased was killed, Anil Bheda

was confined at 3 places i.e. Bhatwadi, Ghatkopar, Mumbai; at a

hotel in Kolhapur; and at Mid-Town Hotel, Andheri, Mumbai.

He submitted that as far as the appellant is concerned, it is the

prosecution case that the appellant had gone to Bhatwadi and had

wrongfully confined Anil Bheda. He submitted that the evidence

of PW40-Aruna Bheda, who has identified the appellant as being

one of the persons who confined her and Anil Bheda at Bhatwadi

is concerned, her evidence cannot be relied upon, inasmuch as,

she had not made the said disclosure before the SLAO and the

learned Metropolitan Magistrate and had infact, not disclosed the

same to anyone prior to her statement being recorded by SIT on

3rd September 2009. He submitted that PW32-Sumant

Ramchandra Bhosale and PW55-Milind Subhash More, examined

by the prosecution to show that the appellant was guarding the

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house at Bhatwadi where Anil Bheda was living with his wife's

family cannot be relied upon, inasmuch as, there are no station

diary entries made by the said witnesses, who are police officers,

of having gone to Bhatwadi, Ghatkopar to guard the house at

night and of their return back to the police station. He submitted

that thus, the evidence, at the highest, would show that the

appellant (A2), a police constable was only acting on the orders of

his superior-Pradeep Suryawanshi (A9) and had accompanied

PW32-Sumant and PW55-Milind i.e. for guarding the house of

Anil Bheda at Bhatwadi. Thus, according to the learned counsel,

the prosecution had failed to show that the appellant was

guarding Anil Bheda's house and as such had wrongfully confined

him.

20.5 As far as killing of deceased at Nana Nani Park is

concerned, Mr. Gaglani submitted that one empty bullet was

found on the spot at Nana Nani park, however, there is a

discrepancy in the description of the empty as mentioned in the

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spot panchnama; the letter sent to FSL, and the CA report and as

such the ballistic expert's report cannot be relied upon to show

that the bullet was fired from the appellant's pistol. He submitted

that the evidence on record would show that infact, the appellant

had taken one pistol and 30 rounds from the Magazine Section at

Naigaon Armory Depot and had also returned one pistol and 30

rounds and as such there was not a single bullet which was

missing. In this connection, learned counsel relied on the

evidence of PW80-Pravin Baliram Bhosale and PW60-Maruti Y.

Patil. He submitted that although the prosecution has relied on

PW80-Pravin Bhosale and PW60-Maruti Patil, to show that the

appellant fired at the deceased, the documents on record would

show that there is tampering of the records i.e. manufacturing

year was subsequently incorporated in the documents. He thus

submitted that considering the evidence on record, the opinion

given by the Ballistic Expert (PW86-Gautam Ghadge), that the

empty was fired from the appellant's weapon, cannot be accepted.

He further submitted that the appellant had no motive to cause

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the death of the deceased.

20.6 It is pertinent to note, that although the learned

counsel for the appellant does not deny the FIR lodged by A9; the

encounter which took place on 11 th November 2006 at Nana

Nani Park; and his presence at the spot at the time of the

encounter, his only submission is that he did not fire at the

deceased, as alleged by the prosecution.

K. Submissions of Mr. Prakash Shetty, learned counsel for the

appellant-Devidas Gangaram Hari Sakpal (A13) in Criminal

Appeal No. 117/2019:

21 Mr. Prakash Shetty, learned counsel for the appellant

-Devidas Gangaram Hari Sakpal (A13) submitted that the

prosecution has not proved the complicity of the appellant in the

alleged crime. He submitted that the appellant was attached as a

Police Constable to the D.N. Nagar Police Station, at the relevant

time and was working under the OA1-Pradeep Sharma and A9-

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Pradeep Suryawanshi. He submitted that although the appellant

has been named by A9-Pradeep Suryawanshi in the FIR, as being

part of the team that did the encounter of the deceased, the

appellant came to the spot subsequently, and was not present at

the time when the encounter took place. In support of the said

submission, learned counsel relied on the timings mentioned in

the FIR (Exh.-278) and the proforma to show that the incident

had taken place between 20:11 hrs to 20:13 hrs and that the

police had received information at 20:50 hrs. He submitted that

PW26-Anil Mahadev Kadam, who was on Wireless Mobile Van

on the said day, in his evidence, has stated that he received the

message on 11th November 2006 at 20:18 hrs and that he reached

Nana Nani Park at 20:28 hrs and saw the injured at the spot and

that he also saw two policemen i.e. Nitin Sartape (A11) and

Arvind Arjun Sarvankar (A22) at the spot. He submitted that the

appellant was not seen at the spot and if the CDRs of the

appellant are seen, it is evident that the appellant was not present

at the timings mentioned in the FIR at the spot and was infact, at

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JW Marriott, at the relevant time. Learned counsel relied on the

evidence and the documents produced by PW62 - Rakeshchandra

Prajapati, Nodal Officer of Loop Mobile. He submitted that the

mobile number of the appellant was XXXXXX7293. He

submitted that CDR records will falsify the prosecution case, that

the appellant was present at the spot as mentioned in the FIR i.e.

between 20:11 hrs to 20:13 hrs when the encounter took place.

He submitted that the CDR will show that the appellant was at

Nana Nani park only at 20:34 hrs i.e. post the incident. He

further submitted that although the appellant has been named in

the FIR, the station diary entry i.e. Exh.-669 and return station

diary entry i.e. Exh.-670, do not bear the appellant's name as

being part of the raiding party. He submitted that the appellant is

being prosecuted only because he was attached to OA1-Pradeep

Sharma and A9-Pradeep Suryawanshi, without there being any

material to support the appellant's presence at the spot, at the

relevant time.

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21.1 As far as confinement of Anil Bheda is concerned, he

submitted that the only allegation as against the appellant is that

after a few days of the encounter, the appellant had visited

Midtown Hotel and was guarding the room in which Anil Bheda

was staying. He submitted that the witnesses examined by the

prosecution i.e. PW45-Naresh Phalke and PW55-Milind More,

cannot be believed, inasmuch as, both the said witnesses have

categorically stated that they had not made any entry in the

station diary of having gone to Mid-Town Hotel or of their return

from the said hotel. He submitted that both the said witnesses

although had guarded the hotel where Anil Bheda was staying,

only the appellant has been made an accused.

L. Submissions of Mr. Manish Mazgaonkar, learned counsel

for Prakash Ganpat Kadam (A16) in Criminal Appeal No.

1493/2018:

22 Mr. Manish Mazgaonkar, learned counsel for the

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appellant submitted that the appellant at the relevant time, was a

Head Constable attached to the D.N. Nagar Police Station. He

submitted that there is no evidence, either direct or

circumstantial, to connect the appellant with the alleged offences.

He submitted that though charge was framed under Section 149

of the IPC, the appellant has not been convicted for the same

with other co-accused. He submitted that the only reason for

roping the appellant in the present case, is the disclosure of the

appellant's name in the FIR lodged by the A9-Pradeep

Suryawanshi @ Nana i.e. in C.R. No. 302/2006, registered with

the Versova Police Station and the averments made in the

petitions before this Court and the Apex Court with respect to

the said FIR i.e. C.R. No. 302/2006. He submitted that since the

case as set out by the accused that it was a genuine encounter was

rejected by the trial Court, no reliance could have been placed on

the said FIR, in which the appellant has been named. He

submitted that Pradeep Sharma (OA1) was acquitted and as such

the appellant also be acquitted.

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22.1 Mr. Mazgaonkar further submitted that the

prosecution had failed to collect the CDRs of the appellant, as

collected of the other accused and as such adverse inference be

drawn against the prosecution, since no CDR has been produced

to show that the appellant was present at the spot, as alleged. He

submitted that the Thane Ammaldar has not been examined by

the prosecution, who was responsible for making the station diary

entries as per Police Manual in respect of the movement of the

appellant from Versova Police Station to D.N. Nagar Police

Station and from D.N. Nagar Police Station to Nana Nani Park.

He further submitted that none of the police officers, who were

examined by the prosecution, have produced their personal

diaries with respect to how the matter was investigated, inasmuch

as, maintaining police diary was compulsory for the police

officers. He submitted that in the event, the presence of the

appellant is proved at the spot, it can only be inferred that the

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appellant was present at the spot, pursuant to the orders of his

seniors and as such had acted in discharge of his official duty and

thus, sanction to prosecute under Section 197 Cr.PC was

necessary. He submitted that even the answers given to the

questions put to the appellant under Section 313 Cr.PC have

been ignored by the trial Court.

22.2 Mr. Mazgaonkar, learned counsel for the appellant

submitted that the appellant was a Police Naik attached to the

Versova Police Station at the relevant time. He submitted that the

evidence of PW51-Anil More wherein he has stated that ASI

Devkate told them that he himself and Police Naik-Kokam (A19)

will do the duty of patrolling in the police station area, is hearsay

and as such cannot be relied upon. He further relied on the

admission which has come in the evidence of PW110 - K.M.M.

Prasanna, as to whether the appellant and two others were sent

from Versova Police Station to D.N. Nagar Police Station as

additional help. He submitted that like the appellant (Prakash

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Ganpat Kadam) in Criminal Appeal No.1493/2018, the material

as against the appellant relied upon by the prosecution, is finding

of his name in the FIR, i.e. the FIR lodged by A9-Pradeep

Suryawanshi (C.R. No.302/2006) and filing of petitions before

this Court as well as the Apex Court, relying on the FIR. He

submitted that there is no other evidence to show that the

appellant was involved in the abduction/confinement of Anil

Bheda and in the encounter of Ramnarayan. He submitted that in

the alternative, if it is proved that the appellant was at the spot, it

was only pursuant to the orders of his seniors and as such it can

only be inferred that the appellant had acted in the discharge of

his official duty.

M. Submissions of Dilip Sitaram Palande (A15), appellant

who appears in-person in Criminal Appeal No.

1242/2018:

23 We heard Mr. Dilip Palande, the appellant who

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appears in-person, through video-conferencing as well as when he

was produced before us pursuant to our order dated 14 th

September 2023, as he was not audible. Mr. Palande submitted

that there is no evidence to connect him with the alleged offence

and that the evidence so collected is manufactured at the behest

of the complainant i.e. PW1-Ramprasad Vishwanath Gupta. He

submitted that the encounter which took place on 11 th November

2006 was a genuine encounter and that it had taken place as set

out in the FIR lodged by A9-Pradeep Suryawanshi (C.R.

No.302/2006 (Exh. - 121)). According to Mr. Palande, the

evidence on record would show that deceased - Ramnarayan had

several antecedents and that the complainant (brother of the

deceased) had suppressed the deceased's antecedents from this

Court at the time of the filing of his petition before this Court.

23.1 In this connection, Mr. Palande relied on the evidence

of PW1-Ramnarayan Gupta and PW3-Shyamsunder V Gupta

with respect to the antecedents of the deceased, who was the

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brother of PW1-Ramnarayan and PW3-Shyamsunder Gupta. He

submitted that the deceased was a wanted criminal and was

associated with the Chhota Rajan Gang and that on receipt of the

information, it was decided to go to the spot and apprehend him,

however, as the deceased refused to surrender and retaliated, the

police were constrained to shoot him. He submitted that the

evidence on record would show that the deceased was absconding

and wanted in many cases and as such the police on receipt of the

information decided to apprehend him.

23.2 Mr. Palande submitted that PW1-Ramnarayan Gupta

was close to the deceased as admitted by him and hence PW1 -

Ramnarayan Gupta had lodged a false complaint against the

police, to take revenge of his brother's death.

23.3 Mr. Palande further submitted that PW38-Dheeraj

Mehta, is not an eye-witness to the alleged abduction of the

deceased and Anil Bheda by the police. He submitted that Nilesh,

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an alleged eye-witness to the abduction was not examined by the

prosecution for reasons best known. He pointed out the

discrepancies in the evidence of PW38-Dheeraj Mehta, PW57-

Shankar @ Girish Dalsingh, PW1-Ramnarayan Gupta and

PW40-Aruna Anil Bheda. He submitted that the evidence of

PW57-Shankar @ Girish would show that PW38-Dheeraj Mehta

had called him and informed that some 'Gavwale' had picked up

the deceased and Anil Bheda and accordingly he had informed

the same to PW1-Ramnarayan Gupta. He further submitted that

PW1-Ramnarayan Gupta in the petition filed by him in this Court

had not stated that he was informed by Shankar @ Girish

(PW57).

23.4 Mr. Palande further submitted that in the alleged

letters/fax/communications made to various authorities by PW1-

Ramnarayan Gupta, there is no date, time and place to show from

where the deceased and Anil Bheda were picked up from. Mr.

Palande when questioned by us, does not dispute the

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faxes/telegrams being sent, however, he submits that the contents

therein are vague. He further submitted that the prosecution had

failed to collect the data with respect to an alleged call made

between PW1-Ramnarayan Gupta and PW38-Dheeraj Ugamraj

Mehta on 11th November 2006 nor had collected the CDR

records of another mobile (Airtel) belonging to PW3-

Shyamsunder Gupta.

23.5 Mr. Palande submitted that PW38-Dheeraj Mehta in

his first statement recorded on 27 th August 2009 and in his 161

statement recorded on 4th September 2009 had denied any

knowledge of abduction or of informing about the same to any

authority. He submitted that in view of the said two statements,

the statement recorded of PW38-Dheeraj Mehta on 1 st February

2010, after 5 months by SIT, wherein, he disclosed about

abduction of the deceased and Anil Bheda, becomes suspicious.

He submitted that the prosecution has not even collected any

material to show what was the motive for the police to either

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abduct the deceased or to kill him, inasmuch as, the prosecution

has not examined or recorded the statement of Anandibai

Deshmukh, on account of whose property there was a dispute

between the deceased and A14-Janardan Tukaram Bhanage (now

expired). He submitted that no documents were even collected

by SIT to prove that there was any dispute with respect to the

property as alleged. He submitted that in the absence of motive,

the prosecution case would fall, since the prosecution case rests

on circumstantial evidence. He further submitted that it is not the

prosecution case that the appellant was involved in the abduction,

nor is there any evidence of abduction by him. He submitted that

the encounter was a genuine encounter and the same is evident

from the fact that two railway tickets were found on the person

of the deceased, when the inquest panchnama was drawn.

23.6 Mr. Palande further submitted that SIT has not

proved that there was a shop `Trisha Collection' and that Nilesh

and PW38-Dheeraj Mehta were doing business from the said

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shop. He submitted that in this connection, the owner of Trisha

Collection, Mr. Dilip Jain has not been examined by the

prosecution, that there were only 3 shops, i.e. Trisha, Vaishnavi

Cosmetics and Trisha Collection and that there was no 4 th shop.

He submitted that it is the complainant i.e. PW1 - Ramnarayan

Gupta who showed Trisha Collection to the officers of SIT and

that Anil Bheda, who was allegedly abducted from there, had

not shown the said shop.

23.7 Mr. Palande relied on the NHRC Report (Exh. - 146)

to show that it was a genuine encounter. According to Mr.

Palande, the conduct of the witnesses examined by the

prosecution would belie the prosecution case i.e. PW1 -

Ramnarayan Gupta was sending telegrams in the name of Aruna

Anil Bheda (PW40), though Aruna Bheda had not granted

permission to do so. He submitted that there was no plausible

reason that has come on record to show why PW1 -

Ramnarayan Gupta did not sent the telegrams / faxes in his name.

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He submitted that the evidence of PW40-Aruna Bheda as well

as her conduct vis-a-vis abduction and wrongful confinement is

doubtful and as such appears to be an after-thought. He

submitted that PW40 - Aruna Bheda had changed her statements

before several authorities and as such implicit reliance cannot be

placed on her evidence. He submitted that only later-on SIT

pressurizing Anil Bheda and Aruna Bheda and PW38-Dheeraj

Ugamraj Mehta that their statements came to be recorded. He

submitted that SIT has fabricated the statements of witnesses and

the documents. He submitted that the statements of Anil Bheda

and Aruna Bheda could not have been recorded by PW110-

K.M.M. Prasanna on 3rd September 2009, since that day, was a

day of Anant Chaturdashi and PW110-K.M.M. Prasanna, being

the DCP of Zone IX could not have spent 2 to 3 hours at Powai

for recording their statements. He, therefore, submitted that no

statement of Jayesh Kanji Kesariya, Anil Bheda and Aruna Bheda,

as alleged by the prosecution were recorded by PW110-K.M.M.

Prasanna on 3rd September 2009. He submitted that even

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otherwise there are discrepancies in their statements. He

submitted that even the 164 statements of Anil Bheda were

recorded on 30th December 2009 and that of Aruna Bheda on 5 th

January 2010, belatedly, after more than 4 to 5 months, of

recording of their 161 statements.

23.8 Mr. Palande further submitted that even the statement

of PW50 - Jayesh Kanji Kesariya was recorded belatedly.

23.9 Mr. Palande submitted that faxes/telegrams were sent

by PW1-Ramprasad Gupta, in the name of Aruna Bheda without

any justification and as such the explanation offered by PW1-

Ramprasad Gupta, that he felt shy of sending the same in his

name, cannot be accepted.

23.10 Mr. Palande further submitted that despite receiving

information of abduction of Anil Bheda, PW40-Aruna Bheda

lodged a missing complaint i.e. her husband-Anil Bheda was

missing, and not an FIR of abduction. He submitted that if really

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Anil Bheda and Ramnarayan, as disclosed by PW38-Dheeraj

Mehta and PW1-Ramprasad Gupta were abducted, there was no

reason for PW40-Aruna Bheda not to lodge a complaint of

abduction with the police. He further submitted that if really

Anil Bheda and Ramnarayan were abducted, PW40 - Aruna

Bheda as well as PW38-Dheeraj Mehta would have sprung into

action, since PW40 - Aruna Bheda was the wife of Anil Bheda and

PW38 - Dheeraj Mehta, a friend of Anil Bheda. According to Mr.

Palande, PW1 -Ramprasad Gupta sent false faxes and telegram

messages in the name of PW40 - Aruna Bheda, only with the

intent to create evidence, when infact, there was nothing to show

that Anil Bheda and Ramnarayan, were abducted.

23.11 Mr. Palande further submitted that Nilesh has not

been examined by the prosecution and that there are a lot of

infirmities with respect to the existence of Nilesh and that the

possibility of Nilesh being a fictitious person cannot be ruled out,

having regard to the evidence that has come on record. He

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submitted that even SIT took no efforts to trace Nilesh, who

allegedly saw the abduction. According to Mr. Palande, there

are also several discrepancies in the Cell ID and the tower

locations vis-a-vis, the tower locations where Anil Bheda stayed

and Trisha Collection, where the incident of abduction allegedly

took place.

23.12 Mr. Palande also relied on the progress report to

show that the investigation was carried out not according to

what was disclosed by Aruna and Anil Bheda but according to

PW1-Ramprasad Gupta (complainant) i.e. brother of the

deceased. He submitted that it is evident from the record, that

the statement of PW38-Dheeraj Ugamraj Mehta was recorded on

4th September 2009 only after Anil Bheda and Aruna Bheda's

statements were recorded by SIT on 3rd September 2009. He

submitted that the statements of PW38-Dheeraj Ugamraj Mehta

(made to SIT, recorded under Section 161 and 164 Cr.PC.), do

not inspire confidence having regard to his earlier statements.

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23.13 Mr. Palande further submitted that since the

encounter which took place was an act committed in the course

of their official duty, it was incumbent for the prosecution to seek

sanction under Section 197. Mr. Palande relied on the following

judgments in support of his submissions:

Smt. Vandana Vikas Waghmare v. State of Maharashtra & Ors. 4;

Vidhya Singh v. State of Madhya Pradesh 5; Sankaran Moitra v.

Sadhna Das & Anr.6; Om Prakash & Ors. v. State of Jharkhand

through the Secretary, Department of Home, Ranchi & Anr. 7; P.

K. Pradhan v. State of Sikkim, Represented by Central Bureau of

Investigation8; Matajog Dobey v. H. C. Bhari9; Darshan Singh v.

State of Punjab & Anr.10; and Raj Kumar Singh alias Raju alias

Batya v. State of Rajasthan11.

4 1998 CRI. L. J. 4295 5 (1971) 3 SCC 244 6 (2006) 4 SCC 584 7 (2012) 12 SCC 72 8 (2001) 6 SCC 704 9 1955 SCC OnLine SC 44 10 (2010) 2 SCC 333 11 (2013) 5 SCC 722

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23.14 Mr. Palande also relied on the circular issued by the

Government of Maharashtra dated 22nd December 2006.

23.15 According to Mr. Palande, the evidence on record, in

particular, the evidence of PW107-Manoj Laxman Chalke,

PW31-Dattatray Ganpat Sankhe, PW39-Mohandas Narayan

Sankhe, PW35-Kiran Tukaram Sonone, PW63-Arun Vasantrao

Awate and PW61-Vinaykumar Keshavprasad Chaube, would

show that the said officers did not doubt the genuineness of the

encounter. He submitted that even the report of the NHRC

would show that the encounter was a genuine encounter.

23.16 Mr. Palande submitted that the ballistic expert i.e.

PW86 - Gautam Natha Ghadge had given his report at the

instance of SIT and that the evidence that has come on record, to

suggest that the firing was done at a short distance, does not

inspire confidence. He submitted that the investigation carried

out by the SIT was biased and false. According to Mr. Palande,

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the prosecution had failed to examine the material witnesses i.e.

Lefty (informer), Dilip Jain (owner of Trisha Collection), Mr.

Ashok Shah (owner of Qualis Vehicle), and Mr. Vijay Jadhav

(panch to the inquest panchnama); the photographer who took

photographs of the spot; and the person who drew the map, and

as such, adverse inference ought to be drawn, for non-

examination of these witnesses.

23.17 Mr. Palande submitted that the circumstances relied

upon, have not been proved by the prosecution beyond

reasonable doubt nor have certain incriminating questions been

put to him under Section 313 Cr.PC i.e. on CDRs. He submitted

that even the CDRs cannot be relied upon, for want of Section

65B Certificate and several discrepancies therein.

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N. Submissions of Mr. Waqar Pathan, learned counsel for the

appellant-Ratnakar Gautam Kamble @ Rattu (A3) in

Criminal Appeal No.1038/2013:

24 Mr. Waqar Pathan, learned counsel for the appellant

submitted that the appellant does not dispute the fact, that he

was part of the team (Group-2), when the encounter took place

on 11th November 2006. Learned counsel submitted that the

encounter was a genuine encounter and was not a fake or staged

encounter, as alleged. He submitted that admittedly, the

appellant is not alleged to have fired at the deceased or even

carried any weapon to the spot.

24.1 Mr. Pathan further submitted that admittedly the

appellant was not present at the time of the alleged abduction,

even according to the prosecution. He submitted that it is the

prosecution case, that the appellant alongwith others had

wrongfully confined Anil Bheda at Bhatwadi, Ghatkopar and at

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Mid-town Hotel, Andheri. He submitted that the appellant has

denied the allegation of wrongful confinement. He submitted

that there is no documentary evidence except the oral testimony

to suggest that the appellant ever visited either Bhatwadi or Mid-

Town Hotel i.e. there are no corresponding station diary entries

of the same.

24.2 Mr. Pathan submitted that with respect to wrongful

confinement of Anil Bheda, the prosecution examined three

witnesses i.e. PW43-Madan Tanaji More, PW45-Naresh Namdeo

Phalke and PW55-Milind Subhash More, however, the evidence

of all the three witnesses, is contrary to each other and as such

does not inspire confidence and hence cannot be relied upon.

According to Mr. Pathan, the prosecution has failed to prove that

the appellant was a member of the squad of Pradeep Sharma

(OA1) or infact, that a squad of Pradeep Sharma existed. He

submitted that the appellant was on deputation from Juhu Police

Station (July 2006) to D.N. Nagar Police Station and that the

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appellant was working for D.N. Nagar Police Station and not for

Pradeep Sharma, as alleged by the prosecution. He submitted

that since the encounter was a genuine encounter, the prosecution

had failed to obtain sanction as mandated by law under Section

197 Cr.PC, since the act committed by them was in the course of

their official duty.

24.3 Learned counsel also assailed the CDR relied upon by

the prosecution. He submitted that in the absence of Section 65B

Certificate, the evidence with respect to the same, cannot be

relied upon.

III. Submissions of Mr. Rajiv Chavan, learned Special Public

Prosecutor (Spl.PP) for the Respondent-State in all Appeals

preferred by the Appellants/Accused:

25 Mr. Chavan, learned Spl.PP appearing for the

respondent-State of Maharashtra, submits that the prosecution

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case rests entirely on circumstantial evidence and that the

prosecution has proved all the circumstances relied upon by them,

by leading cogent, legal and admissible evidence. He submitted

that whilst appreciating the evidence, the Court would have to

bear in mind the fact that the investigation in the case started

after three years, in 2009, of an incident which had taken place in

2006, only after the High Court directed registration of an FIR,

and hence, by then, crucial witnesses were missing. He

submitted that infact, during the pendency of the case, just before

the prime and star witness of the case-Anil Bheda could be

examined, he was done to death. He submitted that the prime

witness-Anil Bheda was a witness to the abduction of Ramnarayan

and himself; of being taken to Bhandup Complex; and then in

separate cars by the police to D.N. Nagar Police Station; and

thereafter, his own confinement, post the encounter of

Ramnarayan (deceased).

25.1 According to Mr. Chavan, the case in question, is,

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not just one of abduction, confinement and cold blooded murder,

but a grave case in which, officers of the law enforcement agency,

custodians of law and order, had conspired, created and

fabricated false records to substantiate their claim, that

Ramnarayan died in a genuine encounter. He submitted that it is

a case in which pressure tactics were used so that no witness

would come forward to give any statement/depose. He submitted

that the case involves not only police personnel/ officers but even

some civilians, who were members of the squad led by Pradeep

Sharma (OA1). He submitted that all of them conspired to kill

Ramnarayan for an ulterior motive and made the encounter look

like a genuine encounter. He submitted that the telegrams/faxes

sent by PW1- Ramprasad Gupta to various authorities would

show that Ramnarayan and Anil Bheda were abducted and that

there was a likelihood of Ramnarayan being killed in an

encounter. He submitted that the prosecution has proved

through the evidence of witnesses, the telegrams/faxes sent by the

complainant (PW1-Ramprasad Gupta) to various authorities.

S.Q. Pathan / N.S. Chitnis 114/867

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25.2 Mr. Chavan further submitted that pursuant to the

order passed by the High Court, magisterial inquiry was

conducted under Section 176(1-A) of Cr.P.C and that the report

of the Magistrate clearly revealed that the police officers had

abducted the deceased, taken him to some unknown place, killed

him by firing bullets at him, and then showed that the encounter

had taken place at the Nana Nani Park. Mr. Chavan further

submitted that pursuant to the High Court order, SIT was

constituted and C.R. No. 246/2009 came to be registered with

the Versova Police Station. He submitted that the accused being

police officers, exerted immense pressure and gave threats to the

witnesses during the course of investigation, in order to ensure

that they do not give any statement against them and that the

evidence of the witnesses examined in connection with the same,

is a testimony of the same.

25.3 With respect to the murder of Ramnarayan, Mr.

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Chavan submitted that false documents were created by the

accused, to cover up the fake encounter and cold-blooded murder

of the deceased. He submitted that the incident of 11 th

November 2006 was meticulously planned and executed to

perfection and that the police had grossly misused their power

and position to fabricate and even destroy evidence and to

pressurize and intimidate crucial witnesses. He, therefore,

submitted that the prosecution case will have to be appreciated,

keeping in mind that there is a gap of three years in commencing

with the investigation with respect to abduction, fake encounter,

and of confinement, coupled with the pressure tactics and fear

psychosis exerted by the accused on witnesses to dither them

from coming forward to give evidence. He submitted that the

charges in the said case came to be framed on 8 th March 2011 and

Anil Bheda was summoned to depose in the said case on 16

March 2011, and that prior to recording of his evidence, Anil

Bheda, a star witness, was abducted and murdered in a gruesome

manner on 13th March 2011 i.e. his body was found charred to

S.Q. Pathan / N.S. Chitnis 116/867

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death.

25.4 Mr. Chavan submitted that there is a chain of events

brought on record by the prosecution i.e. right from keeping a

vigil on the house of Anil Bheda on 10th November 2006 and

again on 11th November 2006; abduction of Ramnarayan and

Anil Bheda on 11th November 2006 from Sector 9A, Vashi;

bringing them to Bhandup Complex from there; taking the two,

to D.N. Nagar Police Station, in separate vehicles; and thereafter,

taking Ramnarayan to Nana Nani Park, Andheri, Mumbai, and

showing that he was killed in a genuine encounter, and thereafter,

confining Anil Bheda for a month, so that, he would not spill the

beans. He submitted that the same cannot be said to be a mere

co-incidence but is a part of a larger conspiracy executed by the

officers by meticulous planning.

25.5 Mr. Chavan submitted that C.R. No. 302/2006 was

registered at the behest of A9, only to cover up the encounter.

S.Q. Pathan / N.S. Chitnis 117/867

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He submitted that the document on record will show that before

the registration of the FIR, ADR was registered i.e. ADR 55/2006

with the Versova Police Station. He submitted that on the basis of

the ADR, the body was forwarded to J.J. Hospital for post-

mortem examination. He submitted that the FIR registered i.e.

C.R. No. 302/2006 has been accepted and relied upon by A2, A3,

A9 and A15, as being genuine, in support of their defence i.e. that

it was a genuine encounter. He submitted that although there

were ten cases registered against the deceased, the said cases were

prior to 2000 and that, none of these cases were registered in the

entire West Region, Mumbai, which includes D.N. Nagar Police

Station and Versova Police Station. He submitted that although

A9-Pradeep Suryawanshi has stated in his FIR that he had

informed his superiors and that the superiors had deputed three

officers from Versova Police Station to D.N. Nagar Police Station

to carry out the secret operation, the evidence on record, is to the

contrary. Mr. Chavan relied on the evidence of PW63-Arun

Awate, the ACP of the area, to show that he was not aware of the

S.Q. Pathan / N.S. Chitnis 118/867

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encounter or that any officer was going to nab an accused; the

evidence of PW61-Vinaykumar Chaube, DCP, Zone-IX, to show

that he was not aware of any operation; and the evidence of

PW78-Bipin Bihari, Additional Commissioner of Police (`Addl.

CP'), West Region, that he had not given any directions or

instructions as alleged by Pradeep Suryawanshi (A9). He

submitted that it is thus evident, that none of the three superior

officers had any information, nor had given any instructions as

alleged by A9. He submitted that infact, no suggestions have

been made to any of the said three witnesses suggesting to the

contrary i.e. that they were aware or that they had given

permission to nab the deceased, prior to the incident. He

submitted that even the entry in the Station Diary i.e. Exh. 897, is

significant. He submitted that the said entry has been denied by

PW39-PI Sankhe, which entry shows that the officers had left for

D.N. Nagar Police Station on a secret mission. He submitted that

no attempt was made to cross-examine PW78-Bipin Bihari, vis-a-

vis the said entry. According to Mr. Chavan, the said entry is a

S.Q. Pathan / N.S. Chitnis 119/867

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false entry, made with the sole intent to build a story of a secret

operation to be conducted. He submitted that although Pradeep

Suryawanshi (A9) had claimed in his FIR, that a meeting was held

in his cabin at 18:20 hrs, pursuant to the secret information

received, the same is not supported by the CDRs of Pradeep

Suryawanshi @ Nana (A9), Dilip Palande (A15) and Ganesh

Harpude (A17). He submitted that infact, Ganesh Harpude (A17)

has denied being present at the D.N. Nagar Police Station, at the

relevant time.

25.6 He further submitted that there are two more false

station diary entries; (i) the first entry at the Versova Police

Station which shows that API Sartape (A11), PSI Harpude (A17)

and PC No. 26645 proceeded to the D.N. Nagar Police Station

for confidential work at 18:05 hrs and (ii) the second entry,

which shows that PI Suryawanshi (A9), API Palande (A15), API

Sarvankar (A22), PSI Patade (A18), API Sartape (A11), PSI

Harpude (A17), PC No. 26645 and the informer proceeded to

S.Q. Pathan / N.S. Chitnis 120/867

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Nana Nani Park at 18:55 hrs. He submitted that the CDRs do

not show that the accused were together, however, the entry is to

the contrary. The author of the said entries is Dilip Palande

(A15). He submitted that the said entries have been brought on

record by PW87-Ajendrasingh Thakur. Mr. Chavan further

submitted that the evidence of PW87-Ajendrasingh Thakur, Sr.PI

attached to D.N. Nagar Police Station, shows that he too was kept

in the dark with respect to the alleged secret operation.

25.7 As far as the spot panchnama of the place where the

alleged encounter took place, is concerned, Mr. Chavan

submitted that according to the accused, the same started at

23:00 hrs and was over at 1:35 hrs. Mr. Chavan submitted that

the spot panchnama alleged to have been prepared at the spot,

was infact a fabricated document. In support of the said

submission, Mr. Chavan relied on the evidence of PW81- Pramod

Sawant, who was attached as a Wireless Operator to Peter Mobile

of Versova Police Station; PW51-Anil More, who was attached to

S.Q. Pathan / N.S. Chitnis 121/867

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Versova Police Station as a police constable; PW77-Mahendra

Tatkare, who was on duty of the mobile-II of Versova Police

Station; who was present at the spot and had collected the articles

from the spot. PW83-Umesh Revandkar, who was attached to the

Detection Branch, Versova Police Station; and the evidence of

PW73-Vilas Kandalgaonkar, Police Constable attached to Versova

Police Station. He submitted that the evidence of PW51-Anil

More is consistent with respect to the presence of PW39-

Mohandas Sankhe, at the spot, when they reached the spot,

between 20:30 hrs and 21:00 hrs i.e. the time when Pradeep

Suryawanshi @ Nana (A9) is alleged to have lodged an FIR,

which FIR was recorded by PW39-Mohandas Sankhe between

20:50 hrs to 21:50 hrs. He submitted that the evidence of

PW81-Pramod Sawant, PW51-Anil More, PW77-Mahendra

Tatkare and PW83-Umesh Revandkar, would show that when

they went to the spot, soon after the incident, collection of

articles was in progress and that PI Sankhe was at the spot. He

further submitted that at around 21:45 hrs, PW77-Mahendra

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Tatkare was present when blood, revolver, soil were collected in

plastic bags. He further submitted that the statement of PW73-

Vilas Kandalgaonkar, Police Constable attached to Versova Police

Station, would show that when he returned at 23:00 hrs from

some other duty, PW39-Mohandas Sankhe called him and asked

him to do, as per the orders of the officers of the Detection

Branch. He submitted that the evidence of PW73-Vilas

Kandalgaonkar, would show that pursuant thereto, he recorded

the spot panchnama at the police station itself, without going to

the spot, at the behest of the officers.

25.8 He submitted that the timings as disclosed by

aforestated witnesses, will show that the spot panchnama was not

done at the spot, as alleged by Pradeep Suryawanshi (A9), nor was

the FIR registered at the time as stated by A9 and that at 22:45

hrs on 11th November 2006, Mr. Chavan submitted that the fact,

that nobody was present at the spot, is also fortified by the

evidence of PW1-Ramprasad Gupta and PW2-Ganesh Iyer which

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is further corroborated by the evidence of other witnesses.

25.9 Mr. Chavan submitted that the fact that the encounter

was a fake encounter and not a genuine encounter is also fortified

by the following circumstances :

(i) The finger print expert's report.

(ii) The report of the ballistic expert i.e. of PW86-

Gautam Ghadge, which shows inconclusive results in the absence

of control samples, taken of the deceased (both hands).

He submitted that the finger print expert's report as

well as the ballistic expert's report would clearly show, that a

revolver was planted by the police on the deceased.

(iii) The spot panchnama allegedly prepared at the spot, is

contrary to the evidence on record, in particular, the evidence of

PW73-Vilas Kandalgaonkar.

(iv) That the evidence on record shows that what was

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collected from the spot was collected in plastic bags, but what was

forwarded to the FSL was in bottles and as such, the

appellants/accused manipulated the record.

(v) That even railway tickets were planted by the accused

to show that the deceased was not in their custody at the relevant

time. In this context, Mr. Chavan, learned Special P.P. relied on

the evidence of PW11-Dr. Sunil Shinde, who was working as a

CMO at the Cooper Hospital; on Exh.-174 i.e. the MLC Register

(Exh.-174), in which there is no mention of tickets (Exh.-285);

and similarly, the Station Diary entry in which there is no

mention of railway tickets being found. He further submitted

that even PW39-Mohandas Sankhe has not spoken about finding

of railway tickets.

25.10 As far the evidence of DW1-Manohar P. Kulpe

is concerned, Mr. Chavan submitted that no reliance could be

placed on his evidence having regard to the contradictions that

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have come in his cross-examination on material aspects, when

confronted by the learned Public Prosecutor.

25.11 Mr. Chavan relied on the ballistic report, map

annexed to the additional affidavit filed by A9-Pradeep

Suryawanshi and admitted by A9 and the spot panchnama to

show that the encounter was a fake encounter and not a genuine

one, as alleged by the defence. He submitted that the evidence of

PW86-Gautam Ghadge and the ballistic report would show that

the hand wash taken from the deceased was inconclusive and as

such the same would belie the theory of the accused that the

deceased had attempted to shoot at them. He further submitted

that the spot panchnama relied upon by the accused and allegedly

prepared by PW39-Mohandas Sankhe would show the distances

between the places where the members of the encounter team

were standing and from where they shot at the deceased. He

submitted that the distance from where the police shot at the

deceased was about 40 feet and across the road, whereas, the

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ballistic expert's report and the evidence of PW86 - Gautam

Ghadge would show that the firing was done from a distance of

about 2 meters. Mr. Chavan also pointed out the distances from

the map annexed by A9-Pradeep Suryawanshi to the additional

affidavit filed by him in the Writ Petition i.e. Writ Petition No.

2473/2006, filed by PW1 on 15th November, 2006, to show that

firing from the said spots as alleged by A9 was impossible.

25.12 Learned Spl.PP relied on the medical

jurisprudence and literature relied upon by PW86-Gautam

Ghadge with respect to firearm shots. According to Mr. Chavan,

taking into consideration the evidence on record, the deceased

could not have been shot from a distance of about 40 feet as

alleged by A9 and some other accused.

25.13 As far as formation and existence of squad is

concerned, Mr. Chavan submitted that the evidence on record

would clearly show that an illegal squad was formed, of which

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Pradeep Sharma (OA1) was the head. He submitted that there is

overwhelming evidence of witnesses to show the formation of

such a squad under Pradeep Sharma (OA1) and that some of the

accused were sent on deputation to work as members of the said

squad. He submitted that although it is alleged that the said

squad was formed by the Addl.CP (West Region), for obvious

reasons, PW78-Bipin Bihari, Addl. CP, has denied the existence of

any special squad or of even having transferred any officers to

the D.N. Nagar Police Station, to work under the said squad. He

submitted that PW78-Bipin Bihari has denied the existence of a

squad since it was not legal to form a squad. He submitted that

although PW78-Bipin Bihari has denied about the existence of a

squad/formation of a squad/deputing members to assist Pradeep

Sharma the head of the squad, there is overwhelming evidence of

other witnesses who state to the contrary. He submitted that the

witnesses who have spoken about the existence of a squad are

PW87-Ajendrasingh Thakur, Senior P.I. attached to D.N. Nagar

Police Station; PW25-Dhiraj Koli, attached to Juhu Police Station

S.Q. Pathan / N.S. Chitnis 128/867

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as PSI, PW72-Manohar Desai, PSI, attached to Versova Police

Station; PW79-Prataprao Baburao Kharate, SHO attached to

D.N. Nagar Police Station; PW82-Samir Faniband, Probationary

Officer, Road Entry, in particular Entry at Exh.-626; PW63-

Arun Vasantrao Awate, ACP, D.N. Nagar Police Station and

PW20-Sanjivan Shinge, In-charge Head Constable at D.N.Nagar

Police Station. He submitted that all the said witnesses have

spoken about the existence of a squad at the behest of a Senior

Officer and that the squad was headed by Pradeep Sharma and

that some of the accused were deputed to work for the said

squad. He submitted that there is no cross-examination of some

witnesses or even suggestion made to some of the witnesses, with

respect to the said evidence, that has come on record, vis-a-vis

existence of a squad under OA1. Mr. Chavan also relied on the

documents/station diary entries/duty register deposed to by the

aforesaid witnesses, with respect to the deputation of some of the

officers, to work as members of the said squad.

S.Q. Pathan / N.S. Chitnis 129/867

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25.14 Mr. Chavan, in support of the formation of the

squad also relied on the evidence of PW32-Sumant Bhosale,

Police Naik, D.N. Nagar Police Station (Detection Branch);

PW43-Madan More; and PW45-Naresh Phalke, Police Constable

attached to D.N. Nagar Police Station and PW55-Milind Subhash

More and PW110-K.M.M.Prasanna. He submitted that none of

these witnesses have been cross-examined with respect to the

formation of the squad and the fact, that A2, A3, A7, A15 and

A16 were deputed as members of the squad and as such, the

prosecution has duly proved the existence of a squad under OA1.

25.15 As far as CDRs are concerned, Mr. Chavan

submitted that the prosecution has duly proved the CDR records

and all documents produced in support thereof. He submitted

that the evidence on record would show that when the documents

were exhibited, no objection was raised by the defence for taking

the said documents on record, in the absence of Section 65B

Certificate. He submitted that the documents having being

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marked as exhibits, without 65B Certificate can be relied upon.

In support of his submission, Mr. Chavan relied on the evidence

of PW54-Changdeo Godse, Nodal Officer, Vodafone to show

that the documents produced by this witness have been duly

proved and that no objection was taken by any of the defence

counsel for exhibiting of the said documents, in the absence of

Section 65B Certificate. He submitted that the officer has duly

stated in his evidence that he had issued the documents in

question and has admitted to the seal and the signatures thereon.

25.16 Mr. Chavan submitted that the prosecution has

proved the CDR/SDR/Cell ID documents/information as sought

for, through the Nodal Officers. Learned Spl.PP relied on the

evidence of PW54-Changdeo Godse, Nodal Officer, Vodafone

India Limited; PW97-Vikas Phulkar, Nodal Officer, Vodafone

India Limited; PW62-Rakeshchandra Prajapati, Nodal Officer,

Loop Mobile India Limited, PW65-Yogesh Rajapurkar, Nodal

Officer, Bharati Airtel, PW69-Mr. Shekhar Palande, Nodal

S.Q. Pathan / N.S. Chitnis 131/867

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Officer, Tata Tele Services Maharashtra Limited, PW85-Divakar

Rao, Nodal Officer, Reliance Communication Limited; and

PW89-Rajesh Gaikwad, Nodal Officer, Reliance Communication

Limited. He submitted that a perusal of the evidence of the said

witnesses would show that no objection was raised for exhibiting

the documents placed on record by the said Nodal Officers. He

submitted that since no objection was taken by the accused, that

the said documents could not be exhibited, for want of Section

65B Certificate, they are precluded from raising any objection

now. Thus, Mr. Chavan submitted that the CDRs and all the

documents have been duly proved by the prosecution through the

said Nodal Officers and as such can be relied upon, having being

exhibited. He further submitted that with respect to only one

document i.e. Exh.-459, PW54-Changdeo Godse has clarified

that the Cell ID location of the said document was incorrect and

that subsequently, the correct Cell ID was submitted i.e. Exh.-

464 and as such, the said ambiguity also stood corrected.

S.Q. Pathan / N.S. Chitnis 132/867

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25.17 Mr. Chavan submitted that all the

information/documents sought for by the Investigating Officer in

the form of CDR/SDR have been exhibited, and that at no stage,

when the CDR/all other documents were exhibited, any objection

was raised by the accused. Mr. Chavan has tendered the details

of the calls made by the accused, their locations to show that the

accused were present at the spot when the alleged incident took

place i.e. at the time of abduction, wrongful confinement and

thereafter, the place where the encounter took place. Mr. Chavan

submitted that the prosecution has also duly proved through the

Nodal Officers that the appellants/accused were infact using the

mobile numbers as alleged by the prosecution.

25.18 To prove the circumstance of `Abduction', Mr.

Chavan, learned Spl.PP relied on the evidence of six witnesses, in

support of the same i.e. PW38-Dheeraj Mehta; PW57-Shankar @

Girish Dalsingh @ Nepali; PW1-Ramprasad Gupta; PW2-Ganesh

Iyer; PW40-Aruna Bheda and PW3-Shyamsunder Gupta. He

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submitted that the abduction of the deceased and Anil Bheda is

deposed to by the aforesaid witnesses and that there is

corroboration to the said evidence in the form of documents i.e.

faxes and telegrams and CDRs.

25.19 Mr. Chavan submitted that the evidence of

PW38-Dheeraj Mehta would show that he was informed of the

abduction by Nilesh at 12:40 hrs as soon as Ramnarayan and

Bheda were abducted. He submitted that although all the learned

counsel for the appellants submitted that the evidence of PW38-

Dheeraj Mehta would not be admissible with respect to what was

disclosed by Nilesh to him, being hearsay, the said submission is

not legally tenable and as such, misconceived. He submitted that

the evidence of Nilesh would be admissible under Section 6 of the

Evidence Act, under the principle of res gestae. He submitted

that the evidence of PW38-Dheeraj Mehta, would show that the

deceased and Anil Bheda reached his shop Trisha Collection at

Sector 9A, Vashi at about 12:15 hrs; that as there was no place to

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sit in his shop, PW38-Dheeraj Mehta stated that they could wait

outside; that at 12.40 hrs, Nilesh came to his shop and informed

him about the same i.e. that his friend (Anil Bheda) and friend's

friend (Ramnarayan) were picked up by 5-6 persons in a Qualis

vehicle. Mr. Chavan submitted that the CDRs would show that

Ramnarayan had made his last call at 12:33 hrs which lasted for

two minutes i.e. till 12:35 hrs, after which, both, Anil Bheda and

Ramnarayan's mobile phones were coming switched-off. He

submitted that the CDR also shows that calls were made by

Vinayak Shinde @ Veenu (A7) (who was at Sector 9A at the

relevant time) to Pradeep Sharma (OA1) (who was at D.N. Nagar

Police Station (mobile standing in the name of Hitesh Solanki @

Dhabbu (A5) and that at 12:39 hrs, a call was made by Shailendra

Pandey @ Pinky (A4) to Lefty (Informer).

25.20 Mr. Chavan submitted that the evidence of

PW38- Dheeraj Mehta would show that he was under pressure

and under duress of the relatives of the appellants-accused and

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that an advocate who used to appear for some of the appellants-

accused was also pressurizing him to give statements in a

particular way in the said case, pursuant to which, PW38- Dheeraj

Mehta gave his earlier statements i.e. prior to his statement dated

27th August 2009 (161 statement) and statement dated 4 th

September 2009 (164 statement) recorded by the SIT and the

learned Magistrate, respectively. Mr. Chavan submitted that

therefore, non-examination of Nilesh will not have any bearing in

the peculiar facts of this case, inasmuch as, the said disclosure

made by Nilesh to PW38-Dheeraj Mehta would clearly fall within

the exception to the admissibility of hearsay evidence and as such

the said disclosure would be admissible in law and as such would

not be fatal to the prosecution. Learned Spl.PP relied on Section 6

of the Evidence Act, in particular, illustration (a) of the said

section, in support of his submission.

25.21 Mr. Chavan submitted that within a few

minutes, on learning of the abduction of Ramnarayan and Anil

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Bheda at 12:40 hrs, calls were exchanged between PW38-

Dheeraj Mehta and PW57-Shankar @ Girish Dalsingh @ Nepali

and PW3-Shyamsunder Gupta and PW1-Ramprasad Gupta. He

submitted that the evidence of the said witnesses i.e. PW38-

Dheeraj Mehta, PW57-Shankar @ Girish Dalsingh @ Nepali,

PW3-Shyamsunder Gupta, PW1-Ramprasad Gupta and PW40-

Aruna Bheda, corroborate each other with respect to the same

and that there is no reason to disbelieve the same.

25.22 Mr. Chavan submitted that the oral evidence of these

witnesses with respect to abduction, is duly supported by

documentary evidence i.e. by faxes/telegrams sent by Ramprasad

Gupta (PW1) and Ganesh Iyer (PW2) to various authorities. He

submitted that the evidence of PW1-Ramprasad Gupta is duly

corroborated by PW4-Shaligram Wankhade, Sub-Divisional

Engineer, working in Central Telegraph Office, Mumbai; PW41-

Wasudeo Channe, working in Customer Service Centre, BSNL,

Prabhadevi; PW42-Bhavka Bhangare, working as Telegraph

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Assistant at the Matunga Office; PW44-Arjun Satam, working as a

Telegraph Assistant at Dadar Telegraph Office; PW47-Santosh

Naik, working as a Writer in Main Control Room (who received

the telegram addressed to the CP, Mumbai); PW49-Ravindra

Kulkarni, Personal Assistant of the CP, at the relevant time; and

PW5-Rachana Vanjare, Clerk, working with the BSNL, with

respect to receipt of a telegram. Mr. Chavan relied on the

telegram reports placed on record by the said witness i.e. PW5-

Rachana Vanjare, received by her from the Dadar and Matunga

Telegraph Office (Exh. 131). Mr. Chavan also relied on the

evidence of PW46-Lakkaraju Narsimha, to show that although

the original charge book was destroyed in 2010, a corresponding

entry to that effect was made in the Station Diary. The said entry

in the charge book pertains to an entry i.e. Exh. 356 i.e. receipt

of a telegram by the main control room, addressed to the CP, on

11th November 2006.

25.23 As far as faxes sent by PW1-Ramprasad Gupta

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are concerned, Mr. Chavan submitted that the prosecution had

proved sending of two faxes i.e. one, to the CP, Navi Mumbai

and the other, to the CP, Thane, on 11th November 2006. Mr.

Chavan, to prove sending of the two faxes, relied on the evidence

of PW93-Sadashiv Borale, who was attached to C.B.D Control

Room and attached to the Office of the CP, Navi Mumbai, to

prove the receipt of fax on 11 th November 2006 at 16:45 hrs; the

evidence of PW94-Sunil Somawanshi, who was attached to the

Control Room at Navi Mumbai, with respect to Station Diary

entries made by the said witness on 12 th November 2006 i.e.

Exhibits 702 and 703; PW92-Dinkar Thakur was examined to

show that the original fax message book could not be produced

and for proving the affidavit filed by him (Exh. 694). He

submitted that although an attempt was made by PW1-

Ramprasad Gupta to send a fax to the CP, Mumbai, for want of

fax tone from the Office of the CP, the fax could not go through.

Mr. Chavan submitted that the evidence of the witnesses

examined to prove the same, would show that faxes and

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telegrams were sent and as such, there was no serious challenge to

the evidence of sending faxes and telegrams by PW1-Ramprasad

Gupta and PW2-Ganesh Iyer, to the authorities as stated

aforesaid. He submitted that the dispute only pertains to the

contents of the said faxes. He submitted that the faxes sent, were

clearly admissible under Section 80 of the Evidence Act and that

though originals were not available, the prosecution has proved

the said documents by leading secondary evidence.

25.24 Mr. Chavan submitted that the prosecution has thus

proved abduction of Ramnarayan and Anil Bheda by the accused,

by legal, cogent and admissible evidence. In support of the

submission, learned Spl.PP relied on the evidence of PW1-

Ramprasad Vishwanath Gupta, PW2-Ganesh R Iyer, PW3-

Shyamsunder Gupta, PW38-Dheeraj Mehta, PW40-Aruna Bheda

and PW57 - Shankar @ Girish Dalsingh. He submitted that the

evidence of the said witnesses is duly corroborated by prompt

sending of faxes/telegrams, letters and filing of writ petition as

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well as by the CDR records. He submitted that the evidence of

the said witnesses has not been shattered, despite a grueling and

lengthy cross-examination.

25.25 Mr. Chavan submitted that the evidence of

PW1- Ramprasad Vishwanath Gupta with respect to having called

his friend for securing fax numbers has been duly corroborated

by the said witness i.e. PW6-Mahesh Muley, from whom PW1-

Ramprasad Gupta had taken fax numbers and PW8-Amit

Jambotkar, to whom PW1-Ramprasad Gupta asked to make

inquiry at the Crime Branch office at Thane. He submitted that

the said evidence was also corroborated by the CDR of PW1-

Ramprasad Gupta, of having made calls to PW6-Mahesh Muley

and PW8-Amit Jambotkar. It is further submitted that PW1-

Ramprasad's evidence has also been duly corroborated by PW40-

Aruna Bheda, on all material aspects, which are germane to the

decision of the said case.

S.Q. Pathan / N.S. Chitnis 141/867

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25.26 Mr. Chavan submitted that in order to prove

wrongful confinement of Anil Bheda, the prosecution has

examined PW40-Aruna Bheda, PW32-Sumant Bhosale, PW55-

Milind More, PW43-Madan More, PW45-Naresh Phalke,

PW37-Astatu Arya and PW52-Purba Bhattacharya. He submitted

that Anil Bheda had a mobile and that his CDR shows that he last

called from his mobile at 11.30 hrs on 11 th November 2006,

from his residence. He submitted that thereafter Anil Bheda's

mobile was never operational, which will show that Anil Bheda

was confined by the police. Mr. Chavan relied on the evidence of

PW40-Aruna Bheda, to show that her husband Anil Bheda was

brought to the police station on 12 th November 2006 by the

police, after his abduction on 11th November 2006; that after

withdrawing the missing complaint lodged by PW40-Aruna

Bheda, when Anil Bheda and Aruna Bheda came out, Anil Bheda

disclosed to PW40-Aruna Bheda, how he and Ramnarayan were

abducted by OA1's men and taken to D.N. Nagar Police Station,

within that short moment. He submitted that the evidence of

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PW40-Aruna Bheda, will also reveal that her husband-Anil Bheda

was wrongly confined by the police, in particular, by A2-Tanaji

Desai, A3-Ratnakar Kamble @ Rattu and A5-Hitesh Solanki @

Dhabbu. He submitted that after Anil Bheda surfaced on 12 th

November 2006 i.e. was brought by the police to the Vashi Police

Station, he, alongwith PW40-Aruna Anil Bheda, were taken to

their house by the police in a Qualis vehicle; and from there, they

were asked to pick up their clothes and were taken in the same

Qualis vehicle to Aruna Bheda's father's house at Bhatwadi,

Ghatkopar; that on 13th November 2006, Anil Bheda was taken

to D.N. Nagar Police Station and thereafter, on the insistence of

PW40 - Aruna Bheda, she and her son were permitted to

accompany Anil Bheda, who was taken to Kolhapur by A5-

Hitesh @ Dhabbu, where they were kept in a hotel. He further

submitted that the fact, that PW40-Aruna Bheda's son was absent

from school from 11th November 2003 to 11th December 2006 is

duly corroborated by PW52-Purba Bhattacharya, Primary School

Teacher, where, PW40-Aruna Bheda and Anil Bheda's son were

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studying. The said witness has produced the original attendance

register and documents showing admission/absence and when

their son left school. He further submitted that the evidence of

PW40 - Aruna Bheda vis-a-vis wrongful confinement by A2-

Tanaji Desai, A3-Ratnakar Kamble @ Rattu and A5-Hitesh

Solanki @ Dhabbu is duly corroborated by their CDRs. He

submitted that the prosecution has examined PW37-Astatu Arya,

Divisional Engineer, Ghatkopar Telephone Exchange, MTNL, to

show that 2 PCO's were standing in the name of PW40 - Aruna

Bheda's father. He submitted that the CDRs would show that

calls were made from the said PCO by Aruna Bheda to speak to

Anil Bheda on the telephone numbers of A2 and A3. Mr. Chavan

relied on Exhibits 269, 549 and 407. He submitted that the

evidence on record will show that the phone used by A5

(XXXXXX5118) stood in the name of Shaikh Kaider. He

submitted that the evidence of PW40 - Aruna Bheda would show

that Anil Bheda was kept in confinement, right from the time of

his abduction on 11th November 2006 till 12th December 2006,

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by the police initially, at Bhatwadi, then Kolhapur and then, at

Mid-town Hotel.

25.27 Mr. Chavan submitted that the aforesaid

evidence vis-a-vis confinement of Anil Bheda is further fortified

by the evidence of PW55-Milind More, PW43-Madan More and

PW45-Naresh Phalke.

25.28 Mr. Chavan submitted that the next set of

evidence pertains to pressure tactics/intimidation employed/ done

by the accused persons to cover up C.R. No.302/2006, i.e. the

fake encounter. In this connection, Mr. Chavan relied on the

three orders passed by this Court dated 13 th February 2008; 11th

August 2008 and 13th August 2009. He submitted that it is also

pertinent to note that a Suo-Motu Contempt proceeding was

initiated as against A9-Pradeep Suryawanshi for interfering in

the administration of justice, pursuant to the report sent by the

learned Magistrate. Mr. Chavan submitted that this Court vide

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judgment dated 4th February 2011 held A9-Pradeep Suryawanshi

guilty and sentenced him to 3 months imprisonment. He

submitted that the said judgment was challenged by A9-Pradeep

Suryawanshi, by way of an SLP, however, the said SLP was

dismissed.

25.29 Mr. Chavan submitted that throughout the

proceeding before the Magistrate, High Court and even after the

SIT took over the investigation, the accused continued to exert

pressure on the witnesses to fall in line with the investigation of

C.R. No.302/2006. In support of his submission, Mr. Chavan

relied on the evidence of PW31-Dattatray Sankhe, P.I and

Investigating Officer in C.R. No.302/2006; evidence of PW35-

Kiran Sonone, Senior P.I attached to Oshiwara Police Station;

evidence of PW39-Mohandas Sankhe and the evidence of the

Investigating Officer i.e. PW107-Manoj Chalke, PW109-Sunil

Gaonkar, PW110-K.M.M. Prasanna and several others. He

submitted that the evidence that has come on record is also duly

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supported by the CDRs.

25.30 Mr. Chavan also relied on the evidence of

PW110-K.M.M. Prasanna to show why Anil Bheda was not

called upon to show Trisha Collection prior to 3rd September

2009; why PW40-Aruna Bheda was constrained to lodge a

missing complaint with respect to the disappearance of Anil

Bheda on 12th November 2006 and why Jayesh Kesariya had

deposed earlier, that he had accompanied Anil Bheda to Shirdi on

11th November 2006.

25.31 Mr. Chavan also relied on the affidavits filed by

A9 and the documents annexed thereto to show the manipulation

done by the police. He submitted that the statement of one of the

witnesses, was obtained after almost three years by A9, when

there was no occasion for him to do so and more so, when he

was not even investigating the case (C.R. No.302/2006).

25.32 Mr. Chavan relied on the post-mortem report

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and the evidence of PW29-Dr. Gajanan Chavan with respect to

the injuries sustained by the deceased. He submitted that the

evidence would show that the death of the deceased was

instantaneous. He submitted that there would have been more

blood oozing, if the person shot at, was alive as compared to a

dead person. He submitted that the evidence of PW29-Dr.

Gajanan Shejrao Chavan would show that there was rupture of

the atrium and as such, it is impossible that the pool of blood will

be as small i.e. 1 foot, as was found at the spot. Mr. Chavan

submitted that the same would belie the appellants/accused case,

that Ramnarayan was shot at the spot in an encounter.

25.33 Mr. Chavan also relied on the evidence of the

carrier in whose possession the articles were and who handed

over the same, in a sealed condition to the FSL i.e. evidence of

PW21-Kailas Ekilwale, PW53-Vishwajit Chavan and PW91-

Sudu Patade.

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25.34 As far as CDRs are concerned, he submitted

that the CDRs of the appellant/accused clearly corroborate the

prosecution case of abduction, of taking the deceased to

Bhandup, from there to D.N. Nagar Police Station and from there

to Nana Nani Park. Mr. Chavan has tendered a compilation of

the CDRs to show the calls made and the presence of the accused

at the spot, despite the said areas, being outside their

Commissionerate and despite there being no occasion for them to

go there i.e. to a different Commissionerate.

25.35 Mr. Chavan has submitted a detailed chart of

the CDRs exchanged between the accused inter se and the calls

made between the witnesses to corroborate the evidence adduced

by the prosecution. He submitted that the CDRs have been duly

proved by the prosecution through the concerned witnesses and

that the said CDRs corroborate the evidence that has come on

record i.e. with respect to abduction of the deceased and Anil

Bheda; taking them to Bhandup where they were put in two

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different vehicles, and thereafter, to D.N. Nagar Police Station;

thereafter, the deceased was taken to Nana Nani Park; and Anil

Bheda was taken to Vashi Police Station on 12 th November 2006;

from there to Bhatwadi, Ghatkopar; from there to D.N. Nagar

Police Station; then to Shirdi; and thereafter, from Shirdi back to

Mid-town Hotel, Andheri. He submitted that the prosecution has

also duly proved that Pradeep Sharma (OA1) was using the Sim

belonging to A5 and this is evident from the location of the said

number at D.N. Nagar Police Station and the calls exchanged

between OA1 and the accused as well as the calls made to the

Addl.CP-Bipin Bihari. Mr. Chavan further submitted that the

evidence of PW1-Ramprasad Gupta, PW2-Ganesh Iyer, PW3-

Shyamsunder Gupta, PW38-Dheeraj Mehta and PW40-Aruna

Bheda, also stand duly corroborated by the CDRs of the said

witnesses.

25.36 As far as allotment of arms and ammunition in

connection with C.R. No.302/2006 on 11th November 2006 and

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12th November 2006, Mr. Chavan relied on the evidence of

PW17-Hanumant Kambli and PW19-Jyotiram Phasale, both

attached to Versova Police Station; PW22-Vishnu Khatal and

PW23-Shavaka Tadvi, both attached to D.N. Nagar Police

Station as well as the evidence of PW60-Maruti Patil attached to

the Magazine Section at Naigaon Armory Depot, (where the arms

and ammunition are kept).

25.37 He submitted that PW17-Hanumant Kambli

has proved the entry made by him with respect to API - Nitin

Sartape (A11) having taken 1 pistol and 6 rounds from the Arms

and Ammunition Division of Versova Police Station. He submitted

that PW19-Jyotiram Phasale has proved that A11-Nitin Sartape,

returned 1 pistol and 5 rounds on 12th November 2006 (after

firing 1 round) and that there is an entry to that effect in the

register. He further submitted that PW22-Vishnu Khatal, had

handed over 1 revolver and 6 rounds to PI-Pradeep Suryawanshi

@ Nana (A9) on 11th November 2006 at 18:00 hrs; and also

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weapons to API-Arvind Sarvankar (A22), Dilip Palande (A15)

and Anand Patade (A18). He submitted that the signatures of all

i.e. Pradeep Suryawanshi @ Nana (A9), Dilip Palande (A15) and

Anand Patade (A18) are there in the register, however,

inadvertently, API - Arvind Sarvankar's (A22) signature could not

be taken. He submitted that neither Pradeep Suryawanshi @

Nana (A9), nor Dilip Palande (A15) or Anand Patade (A18)

have denied taking arms from PW22-Vishnu Khatal and that

only API-Arvind Sarvankar (A22) has pleaded ignorance about

having taken any weapon/ammunition.

25.38 According to Mr. Chavan, as per C.R.

No.302/2006, 2 bullets were fired by A9; 1 by A11, 1 by A15 and

1 by A22. He submitted that as far as A9 and A15 are concerned,

they both do not dispute that they had fired at the deceased from

the weapons they had taken. He submitted that admittedly the

weapons used by A9, A11, A15 and, A22 were not sent to the

FSL in connection with C.R.No.302/2006 (Versova Police

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Station) and that all the weapons of the accused were sent to FSL,

post the registration of the present C.R with the Versova Police

Station i.e. C.R.No. 246/2009. Mr.Chavan submitted that the

FSL report would show that the bullet which was allegedly fired

by A11 was fired from A2's weapon, whereas, the bullet that was

allegedly fired from A22's weapon was fired from OA1's weapon.

He submitted that 3 bullets were retrieved from the body of

Ramnarayan and that one of the bullet which was retrieved was

bullet fired from OA1's weapon, 1 from A9's and 1 from A15's

weapon. He submitted that it is only after the FSL report was

received in the present C.R, that A11 and A22 disputed taking of

the weapons or firing from the said weapons.

25.39 As far as PW23-Shavaka Tadvi is concerned,

Mr. Chavan submitted that his evidence would show that he had

received arms after the alleged encounter i.e. on 12 th November

2006 from A9, A15, A18 and A22. The said witness has given

details of the arms and ammunition received from the said

S.Q. Pathan / N.S. Chitnis 153/867

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accused. They are at Exhibits-216 to 219 and 221 to 224. He

submitted that there is absolutely no cross-examination with

respect to return of the said articles i.e. arms and ammunition by

the accused.

25.40 As far as the evidence of PW60 - Maruti Patil is

concerned, Mr. Chavan, submitted that the said witness was

attached to Naigaon Armory Depot, at the relevant time. He

submitted that his evidence will show that there is a history of

every weapon i.e. butt history and that his evidence would show

that although A2 had taken 30 rounds and deposited 30 rounds,

A2 had used A11's bullet and shot the deceased with his (A2's)

weapon. He submitted that the same is fortified by the ballistic

report, which shows that A2 fired from the weapon. He

submitted that A11's bullet was used by A2 in his weapon and

therefore all the rounds which were returned/deposited by A2

were intact. He submitted that the evidence of this witness would

also show that A11 took 30 rounds but deposited 29 rounds, as 1

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bullet was used in C.R. No.302/2006. He submitted that after

receipt of the ballistic report, A11 denied firing on the deceased,

although in the FIR lodged by A9, he is alleged to have fired at

the deceased.

25.41 Mr. Chavan relied on the evidence of PW60 to

show the history of the weapons used by A22, A9, OA1. He

submitted that Butt No.468 was used by A22 - Sarvankar and

that according to C.R. No.302/2006, A22 had taken the said

weapon and 5 bullets from D.N. Nagar Police Station and had

returned the weapon with 4 bullets. He submitted that the

Ballistic report shows that the bullet alleged to have been fired by

A22 was fired from OA1's weapon i.e. Butt No.347. Mr. Chavan

also relied on the evidence of PW64-Sunil Sawant, PW66-Sabir

Sayeed, PW67-Manoj Desai, PW80-Pravin Bhosale, PW98 -

Sandeep Dal, all attached to the Armory Section of Naigaon to

prove the history of the weapon/handing over and depositing of

the weapons etc. Mr. Chavan also relied on the two panch

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witness i.e. PW28-Bapurao, panch to the seizure of the arms from

Naigaon i.e. seizure of arms of A2, A9, A11, A15, A18 and A22

and the evidence of PW34-Shamsuddin Ansari, panch with

respect to the seizure of weapon of OA1. Mr. Chavan submitted

that the evidence of the aforesaid witnesses is duly corroborated

by the investigating officers i.e. PW107-Manoj Chalke, PW8-

Vinay Ghorpade, PW109-Sunil Gaonkar and PW110-K.M.M.

Prasanna with respect to the seizure of the weapons, panchnama,

sending of articles to the FSL and so on.

25.42 As far as Section 197 Cr.PC is concerned, Mr.

Chavan submitted that the acts of the accused are not protected

under Section 197 Cr. PC, inasmuch as, the acts were not done in

the discharge of their official duty warranting protection. In this

connection Mr. Chavan submitted a compilation of judgments on

Section 197 Cr.PC, on which reliance was placed.

25.43 Thus, according to Mr. Chavan, learned Spl. P.P,

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the prosecution has proved all the circumstances relied upon by

them, by leading legal, admissible and cogent evidence and that

the said oral evidence was duly corroborated by the documentary

evidence. He submitted that the prosecution once having proved

abduction of Ramnarayan and Anil Bheda, it becomes a clear case

of custodial death of Ramnarayan, i.e. a case of murder which is

given a colour of a genuine encounter. He submitted that the

appellants/accused have failed to discharge the burden cast on

them under Section 106 of the Evidence Act i.e. to show what

happened to Ramnarayan, whilst he was in their custody, and as

such, this becoming an additional circumstance, in the chain of

circumstances proved by the prosecution. Accordingly, Mr.

Chavan submitted that no interference was warranted in the

impugned judgment and order, so far as it convicts the appellants

for the offences mentioned in Para 2 herein-above.

25.44 We may note here, that all learned counsel

appearing for the appellants/accused and Mr. Palande (A15),

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appearing in-person as well as Mr. Chavan, learned Spl. P.P have

submitted their written submissions, during the course of hearing,

which were taken on record by us.

IV. ANALYSIS

A. Sequence of events in detail

26 The case in hand has a chequered history, and as such,

it would be necessary to place the two versions, that have come

on record; one as mentioned in C.R. No. 302/2006 registered

with the Versova Police Station on 11th November 2006, at the

behest of A9; and the present case i.e. C.R. No. 246/2009

registered with the Versova Police Station, on 20th August 2009,

after SIT was constituted, after almost 3 years of the incident,

pursuant to the order dated 13th August 2009 passed by this

Court in W.P. No. 2473/2006 (preferred by Ramnarayan's

(deceased) brother i.e. PW1).

S.Q. Pathan / N.S. Chitnis 158/867

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i. C.R. No. 302/2006 registered with the Versova Police Station at the behest of A9

27 According to Police Inspector-Pradeep Pandurang

Suryawanshi (A9), who at the relevant time, was attached to D.N.

Nagar Police Station, he received information on 11th November

2006 at 16:45 hrs from his informer, that one Ramnarayan @

Lakhanbhaiya (deceased), aged 38 years, who was wanted in

cases of murder, dacoity, theft and extortion, was to come to

Nana Nani Park at Seven Bungalow, Andheri (West), Mumbai, to

meet his associates/accomplice. Accordingly, at 17:15 hrs, A9

informed his Superior Officers i.e. the ACP, D.N. Nagar Division,

the DCP, Zone-IX and the Addl. CP, West Region of the same. At

about 18:30 hrs, Pradeep Suryawanshi (A9) called API Dilip

Palande (A15), API Arvind Sarvankar [A22 (now deceased], PSI

Anand Patade (A18), PC Devidas Sakpal (A13) and other staff to

his cabin and briefed them about the information so received.

Pursuant thereto, all the aforesaid drew a plan to apprehend

Ramnarayan @ Lakhanbhaiya.

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27.1 At about 18:40 hrs., Pradeep Suryawanshi (A9),

alongwith his officers and constables and the secret informer,

made a plan to arrest Ramnarayan and the officers and men were

given appropriate instructions about the said operation.

27.2 At about 19:10 hrs., the aforesaid police officers

and the staff reached Nana Nani Park, Seven Bungalow, Juhu-

Versova Link Road. The spot was inspected and Pradeep

Suryawanshi (A9) formed two groups (Group 1 and Group 2)

and concealed themselves at different spots. Pradeep

Suryawanshi (A9) told the Officers and the staff to wait for his

signal.

27.3 Group-1 consisted of PI Pradeep Suryawanshi

(A9), the secret informer, API Nitin Sartape (A11), PSI Anand

Patade (A18), Head Constable-Prakash Kadam (Buckle No.

18839) (A16), Police Naik-Pandurang Kokam (Buckle No. 26645)

(A19), Police Constable-Devidas Sakpal (Buckle No. 10502)

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(A13). The said group i.e. Group-1 positioned themselves in

front of Magnum Opus Building, situated on the west side of the

Nana Nani Park.

27.4 Group-2 consisted of API Palande (A15), API

Sarvankar (A22), PSI Harpude (A17), Police Constable-Ratnakar

Kamble (Buckle No. 31963) (A3), Police Constable-Tanaji Desai

(Buckle No.31241) (A2) and Police Constable-Sandip Sardar

(Buckle No.33492) (A20). The said group-2 positioned

themselves in front of Trishul Building, near the compound of

Nana Nani Park.

27.5 At about 20:10 hrs., one auto-rickshaw came

from Versova side and stopped near an electric pole, on the

southern side of Nana Nani Park. One person alighted from the

said auto and was loitering; the secret informer, who was present

in Group-1, identified the said person as Lakhanbhaiya and

accordingly, informed PI Pradeep Suryawanshi (A9), who

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thereafter, signaled to the police officers/staff and cautiously

proceeded to apprehend him. The Officers/Staff in Group-2 also

proceeded ahead to arrest Ramnarayan. According to A9, on

seeing the movements of the police officers, Ramnarayan pulled

out a revolver from his waist and pointed it at PI Pradeep

Suryawanshi (A9). According to PI Pradeep Suryawanshi (A9), he

shouted loudly and identified them as policemen and asked him

not to fire, but to surrender himself. It is alleged that

Ramnarayan did not heed to the warnings of the police and fired

one round at PI Pradeep Suryawanshi (A9), however, he evaded

the said shot. It is further alleged that API Sarvankar (A22)

positioned in Group-2 also shouted saying that they were

policemen and that he (Ramnarayan) should surrender, however,

Ramnarayan is alleged to have fired one round in the direction of

Group-2.

27.6 It is the case of A9, that the said officers and

staff in Group-1 and Group-2, in order to protect themselves and

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the public, from being shot by Ramnarayan, opened fire in

retaliation/self defence. According to PI Pradeep Suryawanshi

(A9), he fired two rounds from his service revolver, API Sartape

(A11) fired one round from his pistol and API Sarvankar (A22)

and API Palande (A15) fired one round each from their service

revolvers, in the direction of Ramnarayan. Pursuant to the said

firing, Ramnarayan sustained bullet injuries and fell down. The

said firing is alleged to have taken place between 20:11 hrs. to

20:13 hrs.

27.7 PI Pradeep Suryawanshi (A9) informed the

incident to the West Control Room at 20:15 hrs. and requested

them to send a wireless van for assistance, to shift Ramnarayan

to the Hospital. Pursuant thereto, Versova-1 Mobile reached the

spot and removed Ramnarayan to Cooper Hospital. API

Sarvankar (A22) and API Nitin Sartape (A11) are stated to have

accompanied Ramnarayan to the Hospital. Ramnarayan, when

brought to the OPD, at 21:00 hrs, was declared to be dead by the

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Casualty Medical Officer. PI Pradeep Suryawanshi (A9) is stated

to have asked the staff to protect the spot, after which, PI Pradeep

Suryawanshi (A9) went to Versova Police Station, Mumbai, and

lodged an FIR, which was registered vide C.R No. 302/2006 at

20:50 hrs., for the alleged offences punishable under Sections

307 and 353 of the IPC and Sections 3, 25 and 27 of the Arms

Act, as against Ramnarayan. (The said FIR is marked as Exh.

278). According to A9, while the FIR was being recorded, API

Sarvankar (A22) informed him that Ramnarayan was declared

dead before admission by the CMO of Cooper Hospital and

hence, the same was also incorporated in the FIR. Recording of

said FIR, by PI Sankhe (PW39), i.e. C.R. No.302/2006 with the

Versova Police Station, concluded at 21:50 hrs.

27.8 Post the registration of the said C.R, PI

Mohandas Sankhe (PW39) took over the investigation. He

directed PSI Jadhav to go to Cooper Hospital and carry out the

inquest panchnama. PI Sankhe seized two empties of bullets fired

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from the 0.38 service revolver of PI Pradeep Suryawanshi (A9)

under a panchnama (Exh.-279) between 22:05 to 22:35 hrs. PI

Sankhe (PW39), alongwith PI Suryawanshi, thereafter proceeded

to the spot of the incident and drew a spot panchnama on the

very same day i.e. 11th November 2006. The said spot

panchnama allegedly commenced at about 23:00 hrs. on 11th

November 2006 and concluded at 1:35 hrs. of 12th November

2006 (Exh. 283).

27.9 According to PI Sankhe (PW39), there was a

pool of blood near electric pole No. KBC 13-061; one revolver

was lying near the said pool of blood; and one empty was found

near the said pool of blood and near Magnum Opus Building.

Pursuant thereto, PI Sankhe (PW39) took photographs of the spot

with the help of a photographer, Mr. Sharma. PI Sankhe (PW39)

took measurements of the place of incident, examined the

revolver allegedly used by Ramnarayan and found two empties

at the spot and two live bullets in the revolver. One fingerprint

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expert Mr. Gangadhar Sawant was called to examine the

fingerprints on the revolver, however, he did not find any

fingerprints and accordingly submitted his report, which is at

Exh. 284.

27.10 During the course of investigation, PI Sankhe

(PW39) also seized one empty produced by API Sarvankar (A22)

and one empty produced by API Palande (A15) under a

panchnama (Exh. 286). Accordingly, PI Sankhe (PW39) recorded

the statements of the raiding party, of the inquest panchas, the

photographer and other witnesses and also forwarded the dead

body for post-mortem examination vide ADR Form (Exh. 288)

and request letter (Exh. 289). PI Sankhe (PW39) also forwarded

the articles to the Chemical Analyzer and carried out investigation

till 15th November 2006. Subsequently, the investigation was

taken over by PI Dilip Patil of Oshiwara Police Station, who

recorded the statements of the police present at the time of

encounter and of other witnesses.

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ii. C.R. No. 246/2009 registered with Versova Police

Station, after SIT was constituted pursuant to the order passed by this Court.

28 The prosecution case is to the contrary. It is the

prosecution case, that from 10th November 2006, a watch was

kept on the movements of Anil Bheda by the accused, that on 11 th

November 2006, Ramnarayan (deceased) and Anil Bheda left Anil

Bheda's house at around 10:45 hrs.; that they both went to

PW38-Dheeraj Mehta's shop at around 12:15 hrs, which was

situated at Sector 9A, Vashi, Navi Mumbai; that they stepped out

of the shop for sometime, when at around 12:35 hrs to 12:37

hrs, Ramnarayan and Anil Bheda were abducted in a Qualis

vehicle; that one Nilesh on seeing the same, immediately came to

PW38-Dheeraj Mehta's shop at 12:40 hrs and informed him that

his friend (Anil Bheda) and friend's friend (Ramnarayan) had

been taken in a Qualis Vehicle, by 5-6 persons, who were in plain

clothes; that PW38-Dheeraj Mehta informed PW57-Girish

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Nepali; who in turn, informed PW3-Shyamsunder Gupta, who in

turn, informed PW1-Ramprasad Gupta. Pursuant thereto, PW1-

Ramprasad Gupta called PW38-Dheeraj Mehta, who informed

him about the abduction; that PW1-Ramprasad Gupta asked

PW38-Dheeraj Mehta to inform PW40-Aruna Bheda, pursuant to

which, PW38-Dheeraj Mehta went to PW40-Aruna Bheda's

house, at about 14:30 hrs. and informed her what had happened.

When PW38-Dheeraj Mehta was at PW40-Aruna Bheda's house,

PW1-Ramprasad Gupta called PW38-Dheeraj Mehta, pursuant to

which, PW1 and PW2-Ganesh Iyer spoke to PW40-Aruna Bheda

and informed her that there was danger to the lives of Anil Bheda

and Pandeyji (Ramnarayan); PW1 also disclosed that they were

likely to be killed in a fake encounter; fax and phone numbers of

police were given by PW1 and PW2, to PW40-Aruna Bheda to

enable her to inform the authorities, however, PW40 decided to

wait till 17:00 hrs. to decide further course of action; that in the

meantime, PW1 and PW2 sent faxes and telegrams to all the

authorities in Aruna Bheda's name, between 16:00 hrs. to 18:28

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hrs.; that at about 18:30 hrs., PW40 went to Vashi Police Station

and lodged a missing complaint that her husband Anil Bheda was

missing; that PW1-Ramprasad and PW2-Ganesh also visited

Belapur Police Station to find the whereabouts of Ramnarayan,

but did not get any information; and that at around 20:30 hrs.,

PW1-Ramprasad was informed by Shyamsunder Gupta (PW3)

that his brother was shot by the police in an encounter. Pursuant

thereto, PW1, PW2 with others, visited Versova Police Station

and from there, to Nana Nani Park; that they reached Nana Nani

Park at about 22:30 hrs. and found none at the spot. The said

persons only found a small pool of blood on which a newspaper

was placed with a stone kept on it.

28.1 It is the prosecution case, that soon after the

fake encounter, A9 lodged a false FIR as against Ramnarayan @

Lakhanbhaiya alleging offences under Section 307 etc. According

to the prosecution, PW1 had sent complaint letters to several

authorities, as he suspected foul play, however, since no action

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was taken, PW1 filed a writ petition in this Court, being

Criminal Writ Petition No. 2473/2006, on 15th November 2006.

Pursuant to the filing of the petition, a sleuths of orders were

passed by this Court, including the order dated 13th February

2008, wherein this Court directed the Metropolitan Magistrate,

Railway Mobile Court to conduct an inquiry regarding police

firing on 11th November 2006 under Section 176(1-A) of the

Cr.PC, as the Court was not happy with the report of the SLAO,

which had recorded a finding, that the encounter was a genuine

encounter. The Metropolitan Magistrate, Railway Mobile Court,

conducted an inquiry and accordingly submitted a report to this

Court. According to the learned Magistrate, it was a fake

encounter. Pursuant to the said report, the High Court vide order

dated 13th August 2009, constituted a SIT under the DCP, Zone-

IX, K.M.M. Prasanna.

28.2 The said order dated 13th August 2009 passed

by this High Court (Coram : B.H. Marlapalle & Smt. Roshan S.

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Dalvi, JJ.) is reproduced hereunder :

hereunder :

"1. This Petition under Article 226 of the Constitution of India has been filed by a learned member of the Bar alleging that his elder brother Ramnarayan Vishwanath Gupta was abducted by the Mumbai Police on 11th November, 2006 at about 1.00 p.m. and in a fake encounter he was shown killed at about 8.00 p.m. on the same day. He had therefore, sent telegraphic messages to the Respondent No.1 and other higher-ups either in his name or in the name of the wife of Mr. Anil Bheda, who was also allegedly picked-up by the police along with Ramnarayan. On 12th November, 2006 the Petitioner's other elder brother Shyamsunder identified the dead body of Ramnarayan at J.J. Hospital and on the next day the Petitioner requested for a copy of the postmortem report, but he was not obliged. He filed a complaint with Respondent No.1 on 14th November, 2006 and requested for an investigation into the murder of his brother. As there was no response to the complaint, he has approached this Court.

2. The Respondents including the Intervener have filed reply and it has been stated that Ramnarayan was a known criminal and wanted in pending criminal cases and the police had got a tip off that he was to visit Nana Nani garden in Andheri on 11th November, 2006 around 7.00 p.m. Therefore, the police party was deputed to visit the said place and take him in custody. At about 7.30 p.m, Ramnarayan came in an auto-rickshaw to the destination and when he was called upon to surrender by the police party, he started firing from the weapon in his possession and therefore, the police had to upon fire in which Ramnarayan

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died.

3. This Court passed orders from time to time and a magisterial inquiry conducted at the behest of Respondent No.1 was not found to be sufficient to discard the Petitioner's prayer. In a detailed order dated 13th February, 2008 this Court in paragraph 7 recorded a prima facie satisfaction that the case was within the parameters of Section 176(1-A) of the Code of Criminal Procedure and therefore, it was necessary to order an inquiry under the said Section and to be conducted by the Metropolitan Magistrate. In paragraph 8 of the said order this Court clarified that whether the alleged encounter had taken place while the deceased was in custody of the police or whether he had disappeared after the deceased was taken into custody by the police, or otherwise, would be the issues requiring inquiry by the concerned Metropolitan Magistrate. Consequently the learned Metropolitan Magistrate, Railway Mobile Court, Andheri submitted her report dated 11th August, 2008 and in her forwarding letter on the same day she stated that the inquiry conducted by her was in respect of the following 3 issues:

a) Whether alleged encounter has taken place while the deceased was in custody of police.

b) Whether he had disappeared, after the deceased was taken into custody by the police.

c) Or otherwise.

4. In her inquiry it is concluded that the death of Ramnarayan was caused while he was in police custody. His death had not taken place at the spot alleged by the police and that the deceased had not disappeared from the police

S.Q. Pathan / N.S. Chitnis 172/867

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custody before he was done to death, but that the deceased was abducted by the police. As per the learned Metropolitan Magistrate the Petitioner's brother was somewhere else and the police had shown that as an encounter killing at Nana Nani Park.

5. In the order dated 23rd January, 2009 this Court noted that it would be desirable to hear the Respondents as well the Interveners on their objections to the report submitted by the learned Metropolitan Magistrate and consequently we have heard the learned Counsel for all the parties at length. We have also considered the post mortem report and more particularly the places of bullet injuries on the person of the deceased. The learned Counsel for the Respondents and Interveners by citing a host of decisions of the Supreme Court as well as this Court urged before us not to entertain this Petition and argued that the Petitioner be relegated to the alternative remedy of filing a private complaint under Section 190 and 200 of the Code of Criminal Procedure and a Petition under Article 226 of the Constitution of India cannot be entertained. Whereas Mr. Pradhan, the learned Sr. Counsel for the Petitioner also relied upon a host of the decisions of the Supreme Court as well as this Court including the Full Bench of this Court and submitted that it was a fit case to direct the police authorities to register a crime and handover the investigation to the Central Bureau of Investigation, as not only some of the senior police officials are the Interveners, but even the affidavit in reply filed by the Respondent No.1, who is the head of the Mumbai Police, indicated suppression of material facts and thus an attempt to mislead the Court.

6. Be that as it may, we are satisfied that the complaint of the Petitioner in respect of the murder of his brother is

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required to be investigated into and more so as it is an admitted fact that Ramnarayan died by the bullets fired by the police officers. We had called upon the learned Incharge P.P to submit before us a panel of I.P.S. Officers, in consultation with the Directorate General of Police -

Maharashtra, so that one of these paneled officers could be appointed as the Investigating Officer and as a head of the Special Investigating Team, which we propose to constitute.

7. Mr. Pol has submitted before us a list of 5 officers from the I.P.S. Cadre. We hereby appoint Shri K.M.M.Prasanna, D.C.P, Mumbai City as the Investigating Officer and we leave it to the choice of the Investigating Officer to have other 2 or 3 police officers to assist him in the investigation and the said personnel shall be spared by the Commissioner of Police, Mumbai or the Directorate General of Police, Maharashtra State, as the case may be.

8. We direct the Petitioner to approach the said Officer immediately, submit a copy of his complaint dated 14th November, 2006 addressed to Respondent No.1 and request the said Officer to record his statement afresh, which statement shall be treated as an F.I.R to be registered by the said Investigating Officer. The Petitioner shall also submit the list of witnesses to the Investigating Officer. The Investigating Officer shall proceed to record the statements of all the witnesses and ofcourse the list of witnesses should not be confined only to the names mentioned by the Petitioner. We also leave it to the choice of the Investigating Officer to subject any of these witnesses to lie detection test, including the Petitioner and his friend Shri Ganesh Iyer - Advocate, Shri Anil Bheda and his wife Mrs. Aruna Anil Bheda.

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9. The Investigating Officer shall submit before us the progress report in the investigation so conducted from time to time and the first such report shall be placed before us within 4 weeks from today.

10. Mr. A.N. Roy appeared before us on 12th August, 2009 and submitted his affidavit tendering an unconditional apology and explanation as to the circumstances leading to the receipt of the telegram sent by the Petitioner on 11th November, 2006 and its forward dispatch for an appropriate action by the D.C.P. We have heard Mr. Walwalkar appearing for Mr. Roy. We have accepted the apology tendered by Mr. Roy.

11. Hence, Stand over for 4 weeks.

12. A copy of this order be forwarded forthwith to (1) The Director General of Police, Maharashtra, (2) The Commissioner of Police, Mumbai and (3) Shri K.M. Prasanna, D.C.P. Mumbai City.

Sd/- Sd/- (SMT.ROSHAN S. DALVI, J.) (B.H.MARLAPALLE, J.)

13. The above order was dictated in the first half. However, in the second half Mr. Mirajkar, the learned Counsel for one of the Interveners submitted an oral application and prayed for stay to the operation of this order.

14. The oral application is hereby rejected.

(emphasis supplied)

Sd/- Sd/- (SMT.ROSHAN S. DALVI, J.) (B.H.MARLAPALLE, J.)"

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28.3 Pursuant to the said order, SIT was constituted,

as this Court was prima facie of the opinion that it was a fake

encounter.

28.4 During the course of investigation by the SIT,

the prosecution recorded the statements of several persons

including that of PW1-Ramprasad Gupta (brother of deceased-

Ramnarayan), PW3-Shyamsunder Gupta (another brother of

deceased - Ramnarayan), PW2-Ganesh Iyer, who was present with

PW1-Ramprasad Gupta, when he received the information about

abduction of his brother Ramnarayan, Aruna Bheda (PW40),

Dheeraj Mehta (PW38) and several other witnesses.

28.5 The most important and prime witness whose

statement was recorded by SIT, both under Section 161 and under

Section 164 was, that of Anil Bheda, who was present with

Ramnarayan, at the time when Ramnarayan was abducted from

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Sector 9, Vashi, Navi Mumbai. Thus, Anil Bheda was a star

witness for the prosecution with respect to the abduction of the

two of them i.e. himself and Ramnarayan, by the police from

Vashi on 11th November 2006 around 12:30 hrs. and of the travel

from Vashi to Bhandup Complex and from there to D.N. Nagar

Police Station; and, thereafter, of his wrongful confinement by the

police and others. It is the prosecution case that Anil Bheda, was

kept in confinement by the appellant/accused since the date of his

abduction i.e. 11th November 2006, initially at Bhatwadi,

Ghatkopar, then in a Hotel at Kolhapur, and then at Mid-Town

Hotel, Andheri, Mumbai, so that he does not spill the beans vis-a-

vis the incident of abduction, he being the prime witness. It is

pertinent to note, that SIT and the learned Magistrate recorded

the statements of Anil Bheda under Sections 161 and 164 on 3 rd

September 2009 and 30th December 2009 respectively. Anil

Bheda, the star witness in the case, went missing on 13 th March

2011 i.e. within 3 to 4 days, after charge came to be framed as

against the appellants/accused in the case, on 8 th March 2011.

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Pursuant thereto, Aruna Bheda lodged a missing complaint on

13th March 2011 with the Vashi Police Station. A burnt dead body

was found by the Manor Police, in the vicinity of a farm at

Manor, District Thane. Later on, it was confirmed that, the burnt

dead body was that of Anil Bheda. The said body was identified

on the basis of the DNA carried out. It appears that the

investigation of the said case i.e. death of Anil Bheda, is still

pending with the State CID.

28.6 The investigation done by SIT in the instant

case revealed that Ramnarayan and Anil Bheda were abducted by

the police from Vashi and thereafter, were taken to Bhandup

Complex and from there, to D.N. Nagar Police Station.

Ramnarayan was shot dead. It is the prosecution case, that the

appellants/accused created a false case, that Ramnarayan was

killed in an encounter at Nana Nani Park, Andheri. Thereafter,

Anil Bheda, an eye-witness to the abduction and what happened

between Vashi and D.N. Nagar was wrongfully confined by the

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police and others, for almost a month, so that he does not spill

the beans. Accordingly, after investigation, charge-sheet was filed

in the said case as against the appellants and acquitted accused -

Pradeep Sharma (OA1), under Sections 364, 365, 368, 302, 120B

r/w 364, 143, 144, 147, 148, 149 r/w. 364, 149 r/w 365, 364 r/w

149, 365 r/w 149, 368, 364 r/w 109 r/w 120B and 365 r/w 109

r/w 120B, 368 r/w.109 r/w 120B, 344 r/w. 34, 344 r/w. 109 r/w

120B, 302 r/w 34, 302 r/w 109 r/w 120B, 201 r/w 34, 201 r/w

109 r/w 120B, 201, 201 r/w 109 r/w 120B, 174(A) of the IPC, in

the Court of the learned Metropolitan Magistrate, Railway

Mobile Court, Andheri (East), Mumbai.

28.7 Since the case was Sessions triable, the case was

committed to the Court of Sessions for trial. The prosecution in

support of its case, examined as many as 110 witnesses.

28.8 The defence of the accused was that of denial

and false implication. According to some of the accused i.e.

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Tanaji Desai (A2), Ratnakar Kamble (A3), Pradeep Suryawanshi

(A9) and Dilip Palande (A15), it was a genuine encounter,

whereas others denied their presence at the spot. Vinayak Shinde

(A7), in support of his case, examined two witnesses.

LIST OF DEFENCE WITNESSES EXAMINED BY THE

ACCUSED NO.7

1 D.W.1 - Manohar P. Kulpe (Exh. - 960) 2 D.W.2 - Dagdu Bandu Patil, Senior Police Inspector (Exh. - 973)

28.9 The learned Judge after considering the

evidence on record, which was circumstantial and documentary

in nature, convicted and sentenced all the appellants as stated

herein-above in para 2 and acquitted Pradeep Sharma (OA1) as

stated in Para 3. Hence, the aforesaid appeals, by the

convicted appellants/accused and by the State of Maharashtra and

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the complainant as against the acquittal of Pradeep Sharma

(OA1). The complainant has also filed a revision application, for

enhancement of the sentence of 12 of the accused, all police

personnel.

28.10 Admittedly, the prosecution case rests entirely

on circumstantial evidence. Hence, before we proceed to analyse

the evidence, it would be apposite to consider the law vis-a-vis

circumstantial evidence, which is no longer res integra.

B. The Law on Circumstantial Evidence

29 In Hanumant Govind Nargundkar v. State of

M.P.12 which is one of the earliest decision, the Apex Court

observed specifically in para 12, as under:

"12. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so

12 AIR 1952 SC 343

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established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

29.1 The Apex Court in the case of Sharad

Birdhichand Sarda v. State of Maharashtra13, has laid down the

five golden principles (Panchsheel) which govern a case based

only on circumstantial evidence. Para 153 of the said judgment is

reproduced herein-under:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"

established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji

13 (1984) 4 SCC 116

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Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

29.2 Thus, it is clear from the aforesaid that it is the

duty of the prosecution to prove each and every circumstance as

against the accused, no chain of which should be missing. Each

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of the circumstance must point to the complicity of the accused

and the established facts must be consistent / in consonance with

only the guilt of the accused and must exclude any hypothesis

consistent with the innocence of the accused. Keeping this in

mind, we now proceed to consider each of the circumstance

relied upon by the prosecution.

C. Circumstances and Analysis of each of the circumstance

30 The prosecution in support of its case, has relied on

the following circumstances :

(i) Formation of squad under OA1;

(ii) Abduction of the deceased (Ramnarayan) and Anil Bheda;

(iii) Custodial death/fake encounter/Murder of the deceased (Ramnarayan) by the police;

(iv) Wrongful confinement of Anil Bheda;

(v) Pressure tactics employed by the relatives of the appellants/accused;

(vi) CDRs;

(vii) Ballistic report/forensic evidence; and

(viii) Criminal conspiracy.

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Accordingly, we proceed to consider whether the

prosecution has proved the circumstances as stated aforesaid as

against the appellants/accused, by legal, cogent and admissible

evidence.

31 Before we proceed to deal with each of the

circumstance relied upon by the prosecution, it would be

necessary to set out the stand of each of the appellant/accused,

who are police officers with respect to the encounter i.e. whether

they support the encounter i.e. C.R. No. 302/2006, lodged at the

behest of A9, or not.

32 Stand of each of the police accused vis-a-vis C.R. No.

302/2006 :

- As far as Tanaji Desai (A2), Ratnakar Kamble (A3),

Pradeep Suryawanshi (A9) and Dilip Palande (A15) are

concerned, the said appellants/accused have been named in C.R.

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No. 302/2006, as being part of the encounter team. According to

said appellants, it was a genuine encounter. The said four

appellants/accused have accepted the correctness of the FIR

lodged by A9, which was registered vide C.R. No. 302/2006.

Even in the present appeals, the said appellants have supported

the encounter and have submitted that since it was a genuine

encounter, it was mandatory for the prosecution to obtain

sanction under Section 197 Cr.P.C, which was not done.

- As far as Vinayak Shinde (A7) is concerned, he has

not been named in C.R No. 302/2006 (as being part of the team)

and has pleaded ignorance with respect to the correctness of the

said C.R. According to A7, he has nothing to do with the said

encounter. It appears from the tenor of the cross-examination

conducted of PW31, PW39, PW61, PW63 and PW83 and from

the examination of defence witnesses by A7, in particular DW2,

that the stand of A7 was that it was a genuine encounter.

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- Although, Nitin Sartape (A11), has been named in

C.R. No. 302/2006 and has accepted the correctness of the said

C.R in his statement under Section 313 Cr.P.C (Question

No.155), from the tenor of his cross-examination, it appears that

he has denied being part of the encounter team. Even before us,

whilst arguing his appeal, the said appellant, has denied being

part of the encounter team. It is the pertinent to note, that A2,

A3, A17 and A18 had filed an Intervention Application

No.283/2008 (Exh. 851) in Writ Petition No.2473/2006 and A11

had filed Writ Petition No.181/2009 (Exh. 848), wherein they

claimed to be a part of the encounter team.

- Although, Devidas Sakpal (A13), Prakash Kadam

(A16), Anand Patade (A18) and Pandurang Kokam (A19) have

been named in C.R. No. 302/2006 and have accepted the

correctness of C.R. No. 302/2006 in their 313 statements

(Question 155), the said appellants before us, have submitted

that they were not part of the encounter team. It is pertinent to

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note that A13, A16, A19 and A20 had filed an SLP, being SLP

No.6801/2009 (Exh. 135) in the Apex Court, claiming to be a

part of the encounter team.

- Ganesh Harpude (A17) and Sandeep Sardar (A20),

although named in C.R. No. 302/2006, have pleaded ignorance

with regard to the correctness of the said C.R., in their statements

recorded under 313 (Question 155). Before us, the appellants

have urged that they were not part of the encounter team and had

gone to the spot i.e. Nana Nani Park, only to help the police in

collection of the articles, during the Spot panchnama.

- Arvind Sarvankar (A22) has been named in the C.R.

No. 302/2006. He too has claimed ignorance with respect to the

correctness of the said C.R in his 313 statement (Question 155).

It is pertinent to note, that A11, A15 and A22 had filed an

Intervention Application No.284/2008 (Exh. 852) in Writ Petition

No.2473/2006, where they claimed to be a part of the encounter

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team.

- We may note, that Arvind Sarvankar (A22)'s appeal

being Criminal Appeal No. 1038/2013) stood abated, only qua

him vide order dated 23rd February 2021, in view of his demise,

pending the hearing of his appeal.

Having set-out the stand only of the appellants (police

personnel) as aforesaid, we now proceed to analyse each of the

circumstance, relied upon by the prosecution.

i. FORMATION OF SQUAD:

33 Learned counsel for all the appellants submitted

that the evidence on record, in particular, that of PW78-Bipin

Bihari, Addl C.P, West Region, would reveal that formation of

squads was illegal and as such, there was no evidence on record

to show that infact, such a squad as alleged by the prosecution

under Pradeep Sharma (OA1), existed. In support of the said

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submission, learned counsel for the appellants placed great

reliance on the evidence of PW78-Bipin Bihari and the admissions

of the said witness, that have come on record in his cross-

examination.

33.1 Per contra, according to the prosecution,

although the formation of a squad was illegal, nevertheless, such a

squad existed under Pradeep Sharma (OA1), and that the same

has been duly proved by the prosecution. In support thereof, the

prosecution relied on the evidence of Sanjivan Shinge (PW20),

Dhiraj Koli (PW25), Sumant Bhosale (PW32), Madan More

(PW43), Naresh Phalke (PW45), Milind More (PW55), Manohar

Desai (PW72), Prataprao Kharate (PW79), Samir Faniband

(PW82) and Ajendrasingh Thakur (PW87). According to the

prosecution, it is evident from the deposition of the said

witnesses, that the members of the said squad, were not doing

any work of the police station; were not participating in the

activities of the D.N. Nagar Police Station; that the members of

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the squad under Pradeep Sharma (OA1) were doing special

operations; and, that the staff including the officers of the D.N.

Nagar Police Station were not aware of the said special

operations. It was also submitted that since they were members of

the squad of OA1, there was no record of the work or activities

of the squad members and no information was recorded about

their departure/arrival etc. and that there were no entries made

about the work, they were doing. It is the prosecution case, that

the squad was using private vehicles and that some civilians were

also members of the said squad. According to the prosecution,

since reserve officers were already available at D.N. Nagar Police

Station, there was no necessity to call police personnel and

officers from other police station to D.N. Nagar Police Station, as

was done in the present case. Mr. Chavan, learned Spl. P.P.

submitted that although Bipin Bihari (PW78), Addl. CP, West

Region, has denied that any such squad was formed under

Pradeep Sharma (OA1), the evidence on record of other witnesses

is to the contrary i.e. it shows the existence of a squad under

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Pradeep Sharma (OA1). Mr. Chavan submitted that the existence

of the squad, would be evident from the fact that some of the

officers had joined D.N. Nagar Police Station on deputation, i.e.

Dilip Palande (A15) was deputed from Kalachowki Police Station

to D.N. Nagar Police Station in August 2006; Ratnakar Kamble

(A3) was deputed from Juhu Police Station to D.N. Nagar Police

Station on 29th July 2006; and Tanaji Desai (A2) and Vinayak

Shinde (A7) were deputed from Versova Police Station to D.N.

Nagar Police Station on 18th October 2006.

33.2 The following are the officers who have

deposed with respect to existence of a squad under Pradeep

Sharma (OA1):

PW87 - Ajendrasingh Thakur, Then Sr. PI, D.N. Nagar Police Station :

34 Ajendrasingh Thakur (PW87), was attached to D.N.

Nagar Police Station as Sr.P.I in November 2006. He has stated,

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that at the relevant time, PI Taware (Administration), PI Pradeep

Suryawanshi (Investigation), PI Pradeep Sharma (Prevention), PI

Avadhoot Chavan (Community) were attached to D.N. Nagar

Police Station. The said witness has stated that PI Pradeep

Sharma was supposed to supervise the preventive work, such as

taking preventive actions under Sections 56, 57, 107 of Cr.P.C,

etc.; that there was a cabin behind the police station and that

Pradeep Sharma (OA1) would sit in the said cabin; that initially, it

was a store room, which was renovated by Pradeep Sharma

(OA1), as he did not have a cabin to sit in. He has stated that PI

Pradeep Sharma (OA1), PI Pradeep Suryawanshi (A9) and some

other officers were reserve officers.

34.1 According to Ajendrasingh Thakur (PW87), there was

a squad of the Addl. C.P., West Region in D.N. Nagar Police

Station and that the said squad included PI Pradeep Sharma

(OA1), API Palande (A15) and 3 to 4 police constables who had

come from outside i.e. Kamble (A3), Desai (A2) and Shinde (A7).

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He has stated that Palande (A15), Kamble (A3), Shinde (A7) and

Desai (A2) were appointed in the squad by orders of the Addl.

C.P., West Region and that it was an oral and not a written order.

The said witness has placed on record the order dated 21 st August

2006 of the Office of the Sr. Inspector of Police, D.N. Nagar

Police Station, which bears the signature of PI Suryawanshi (A9).

He states that the said order was issued in the name of Sr. P.I.,

D.N. Nagar Police Station and that as per the oral order of Addl.

C.P, West Region, Bandra (West), Mumbai, with effect from 21 st

August 2006, PC 10502-Devidas Sakpal (A13), would work with

PI Pradeep Sharma (OA1) and PI Pradeep Suryawanshi (A9). The

said letter is marked at Exh. 668.

34.2 Ajendrasingh Thakur (PW87) has further stated that

two civilians would come to D.N. Nagar Police Station to meet PI

Pradeep Sharma i.e. `Bobby' (A6) and `Dhabbu' (A5). He has

identified both the said accused. PW87 has further deposed that

API Palande (A15) was deputed to D.N. Nagar Police Station in

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August 2006 from Kalachowki Police Station, Mumbai and was

attached to D.N. Nagar Police Station till April 2007. According

to PW87, on 11th November 2006, he was on day duty in the

police station and that since there was rehearsal of Umang

Programme, to be held on 12th November 2006 at Andheri Sports

Complex, he had gone to Andheri Sports Complex and remained

at the Sports Complex till 23:00 hrs. on 11 th November 2006.

He has stated that there was a relay at 20:00 hrs. to 20:30 hrs. on

Wireless Channel of Peter I, that there was exchange of fire

between the police and a gunda, however, the name of the gunda

was not revealed. He has further stated that he was informed of

the same by his Operator. However, since the incident had taken

place within the jurisdiction of Versova Police Station and he was

having bandobast duty at the Andheri Sports Complex, he told

the Operator that it was not necessary for him to go there. PW87

has further in his evidence deposed that the squad of Pradeep

Sharma (OA1) used to do special operations under the directions

of the Addl. C.P, West Region. He has stated that as the work of

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the squad was confidential, he did not make any inquiry about

their work.

34.3 In the cross-examination, the said witness has stated

that Kalachowki Police Station was not within the jurisdiction of

West Region and that though Mr. Palande (A15) was deputed to

D.N. Nagar Police Station by the orders of the Add. C.P, West

Region, the Addl. C.P., West Region had no jurisdiction over

Kalachowki Police Station. It has come in the cross of the said

witness that he had not seen any order in writing in respect of

transfer of A15 from Kalachowki Police Station to D.N. Nagar

Police Station and that he had only seen the entry in the Station

Diary in which it was stated that Palande (A15) was transferred by

the orders of Addl. C.P, West Region. He has stated that

although, it was correct to state that A15 reported to him,

pursuant to which, the Station Diary entry was made, he did not

insist upon the written order about A15's transfer.

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34.4 It is pertinent to note that PW87 in his cross-

examination, when questioned if he was deposing falsely with

respect to the special squad formed by orders of the Addl. C.P,

West Region, denied the same, stating that he was not deposing

falsely that API Palande (A15), Mr. Kamble (A3), Mr. Shinde (A7)

and Mr. Desai (A2) were working in a special squad; and that the

office order Exh. 668 bearing signature of A9, is not a fabricated

or a false document. He further admitted in the cross, that he

has stated in his statement before SIT that, as the work of the

squad was confidential, he did not make inquiry about their

work.

PW25 - PSI Dheeraj Koli attached to Juhu Police Station :

35 PW25- Dheeraj Koli was attached to Juhu Police

Station as PSI, since July 2006. He has stated that on 29 th July

2006, he was working in night shift from 20:00 hrs to 8:00 hrs,

on the next date i.e. 30th July 2006. He has stated that on 29th

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July 2006, at about 20:30 hrs., one PC Kamble (A3) came to Juhu

Police Station and stated that Addl.C.P, West Division, had

directed him to assist PI Pradeep Sharma (OA1) of D.N. Nagar

Police Station and therefore, necessary Station Diary entry for

leaving D.N. Nagar Police Station be made. He stated that PSI

Nalawade was maintaining the Station Diary and as such, he

requested him to make the said entry. He has stated that

accordingly, PSI Nalawade made the said Station Diary entry.

The said witness has identified the handwriting of PSI Nalawade

and has deposed that the said entry is as per his say. The said

entry is at Exh. 228.

35.1 It has come in the cross-examination of the said

witness that the entry made by PSI Nalawade was made in the

presence of PC Kamble (A3) and that he had asked PSI Nalawade

to make entry of what PC Kamble was stating and that the

information of deputation of Kamble was given by Kamble to him

i.e. PW25 and that except the Station Diary i.e. Exh. 228, there is

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no record of his conversation with Kamble about his deputation.

He has, further in his cross-examination, admitted that he did not

ask the Sr.PI to verify, and neither did he verify whether PC

Kamble had joined duty as per deputation. The said witness has

denied the suggestion that he was not concerned with Exh. 228

and that the said entry i.e. Exh. 228 was made at the behest of

SIT.

PW79- API Pratap Kharate attached to D.N. Nagar Police Station :

36 PW79- Pratap Kharate was attached to D.N. Nagar

Police Station at the relevant time as Police Sub-Inspector i.e.

between the period 3rd June 2006 to 3rd June 2009. He has stated

that on 18th October 2006, he was S.H.O during day time at D.N.

Nagar Police Station and that at about 19:00 hrs, PC Shinde (A7)

Buckle No. 31743 and PC Tanaji Desai (A2) Buckle No. 31241

came to him along with a memo from Versova Police Station.

The memo stated that they were deputed to D.N. Nagar Police

Station. The said witness has stated that he produced both of

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them before Sr. P.I Ajendrasingh Thakur (PW87) at D.N. Nagar

Police Station and thereafter, as per the instructions of PI

Ajendrasingh Thakur, he effected an entry in the Station Diary in

the handwriting of his Relief Officer, PSI Samir Faniband. He has

stated that the said entry was made as per his instructions. The

said witness produced the original Station Diary i.e. the entry

dated 18th October 2006 at Serial No. 33 in the handwriting of

ASI Samir Faniband. The entry was accordingly marked as Exh.

626. The xerox copy of the said entry was placed before the trial

Court after verifying that the contents therein were true and

correct as per the original and accordingly, the xerox copy was

marked as Exh. 626A. The said witness has also identified the

memo received from Versova Police Station as being the same i.e.

Exh. 613. The said witness has also identified Tanaji Desai (A2)

and Vinayak Shinde (A7).

36.1 The said witness in his cross-examination has

admitted that he had not received any letter from Addl. C.P,

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Western Region addressed to D.N. Nagar Police Station and that

neither had he made any inquiry about it to the office of the

Addl. CP, West Region. The said witness has also admitted that it

is not mentioned in the entry that Tanaji Desai (A2) and Vinayak

Shinde (A7) had brought the memo to him in D.N. Nagar Police

Station. The said witness has explained that he could have

himself made the entry, however, he had received instructions to

get some work done by the probationer PSI and as such,

instructed the probationer PSI Samir Faniband to write down the

entry. He has stated that the entry at Serial No. 33, Exh. 626

does not mention that Tanaji Desai and Vinayak Shinde were

produced before Sr.PI of D.N. Nagar Police Station. The said

witness has denied the suggestion that he has never seen Exh. 613

and that the said entry i.e. Exh. 626 was made by him at the

behest of SIT.

PW20- Sanjivan Shinge, Head Constable who assigned duties at D.N. Nagar Police Station :

S.Q. Pathan / N.S. Chitnis 201/867

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37 PW20-Sanjivan Shinge has stated that he was working

in the D.N. Nagar Police Station as in-charge Head Constable

from 2004 to 2010. He has stated that it was his duty to allot

duties to police personnel of the police station and that the

allotment of duties was mentioned in the Duty Register

maintained at the police station. He has stated that on 11 th

November 2006, he was on duty and had made entries about the

duties assigned to the police personnel, in the Duty Register. The

said witness has produced the Duty Register of 11 th November

2006, which is in his handwriting. He has identified the contents

therein, and as such the relevant entries are marked as Exh. 208

and the copy of the entry as 208A. He has stated that in Column

No. 1, his buckle No.9246 appears as in-charge Head Constable

and in Column No. 6 as Assistants to PIs are mentioned. He has

stated the names of the constables, who were assisting the PIs at

the relevant time. There is an entry of Buckle No. 33492 (A20).

He has also identified the entries made in the Duty Register of

12th November 2006, which are in his handwriting. The said

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entries have been marked as Exh. 209 and copy as Exh. 209A.

He has stated that prior to 2006, PI Pradeep Sharma (OA1) had

informed him that his (PW20's) office premises, which was inside

the police station building was required by him (OA1) and that

he (PW20) was given alternate premises for his office outside the

Police Station building, pursuant to which, he shifted to the new

office, which was outside the police station building. He has

stated that PI Pradeep Sharma (OA1) had no charge of any

department of the police station, with him and that he had no

assistant. He has further stated that there were three constables

who were on deputation at D.N. Nagar Police Station i.e. Tanaji

Desai (A2), Vinayak Shinde (A7) and Ratnakar Kamble (A3) i.e.

A2 and A7 were deputed from Versova Police Station and A3

from Juhu Police Station. He has stated that he received orders of

deputation of Desai (A2) and Shinde (A7), whereas, Kamble (A3)

had joined duty pursuant to an entry made in the Station Diary.

PW20 has further stated that these police personnel were working

under Pradeep Sharma (OA1) and that besides the said three

S.Q. Pathan / N.S. Chitnis 203/867

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constables, there was one more constable Shri Kadam (A16)

working with Pradeep Sharma, however, constable Kadam (A16)

was neither on deputation nor was he from D.N. Nagar Police

Station. PW20-Sanjivan Shinge has further stated that he was not

assigning duties to these constables and hence, entries in that

regard were not made by him, in the Duty Register. He has

further stated that though he received information with respect to

constables, whose leave was sanctioned, he was not receiving

information about the leave of the constables, who were on

deputation.

37.1 In the cross-examination, the witness has admitted

that there is nothing in writing to show that Tanaji Desai (A2),

Ratnakar Kamble (A3), Vinayak Shinde (A7), Prakash Kadam

(A16) were working under Pradeep Sharma (OA1) and that as

regards them, there was no record maintained at the police

station about their arrival, departure and/or attendance, nor was

there any entry about what work these constables were doing.

S.Q. Pathan / N.S. Chitnis 204/867

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37.2 Except the aforesaid para on cross, there is no cross-

examination of this witness.

38 In addition to the aforesaid witnesses, there are four

more witnesses, all constables attached to D.N. Nagar Police

Station, who have spoken about the squad of OA1 The said

witnesses are PW32-Sumant Bhosale; PW43-Madan More;

PW45-Naresh Phalke; and PW55-Milind More.

PW32 - Sumant Bhosale :

39 PW32-Sumant Bhosale was working in D.N. Nagar

Police Station, at the relevant time, as Police Naik in the

Detection Branch headed by Crime PI i.e. Pradeep Suryawanshi

(A9). He has stated that OA1 was working in D.N. Nagar Police

Station and that he alongwith his staff was occupying the old duty

officer's room. He has stated that the staff of OA1 was deputed

S.Q. Pathan / N.S. Chitnis 205/867

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from other police stations and that OA1 and his staff were not

doing any work of D.N. Nagar Police Station; and that OA1 and

his staff was not participating in the activities of D.N. Nagar

Police Station. PW32 has identified two of OA1's staff i.e. Tanaji

Desai (A2) and Ratnakar Kamble (A3).

39.1 PW32 has stated that even when he went to Mid-

town Hotel, where Anil Bheda was confined, the Qualis vehicle

which was a private vehicle, was used by the squad of OA1. He

has stated that the said vehicle would be regularly parked outside

the office of OA1 and that Virendra @ Viru would regularly visit

the office of OA1; that one person was driving the vehicle and

that Virendra was sitting next to the driver in the said vehicle.

He has stated that he was told by A9 to sit in the green Qualis

vehicle, at about 22:30 hrs, pursuant to which he went to

Bhatwadi at Ghatkopar in the said vehicle, alongwith Milind

More (PW55). According to PW32, the members of the squad of

OA1, Ratnakar Kamble (A3) and Tanaji Desai (A2) were present

S.Q. Pathan / N.S. Chitnis 206/867

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there. He has deposed that the members of the said squad were

deputed from other police stations and that the Qualis, a private

vehicle was used by the squad of OA1.

39.2 It is pertinent to note that there is no cross of the said

witness i.e. PW32 with regard to what is deposed by him with

respect to Tanaji Desai (A2) and Ratnakar Kamble (A3) being

deputed to D.N. Nagar Police Station; that OA1 and his staff,

who were deputed from other Police Station, were not

participating in the activities of D.N. Nagar Police Station; that

they were members of the said squad; and that the said members

of the squad were deputed from other police stations and that the

Qualis, a private vehicle was used by the squad of OA1.

PW43-Madan More :

40 PW43-Madan More has stated that he was attached

to D.N. Nagar Police Station and was working as Police Naik

S.Q. Pathan / N.S. Chitnis 207/867

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since 25th November 2005 in the Detection Branch, of which

Pradeep Suryawanshi (A9) was PI (Crime). He has stated that

OA1 used to sit in the room which was behind the police station,

that OA1 was in-charge of the squad, in which, there were

hawaldars deputed from other police stations; and that the said

squad was not doing any work of D.N. Nagar Police Station.

40.1 PW43 has further stated that he met one Dhabbu

(A5), who was working with OA1, when he went to Mid-town

Hotel (where Anil Bheda was confined); that the said Dhabbu

(A5) would sit outside the office of OA1 and would make

inquiries with the persons who came to meet OA1 and then grant

entry to the said persons. He has further stated that Ratnakar

Kamble (A3), a police hawaldar, was working on deputation in

the squad of OA1. Accordingly, he has identified A3 and A5.

40.2 Similarly, in the cross-examination of this witness,

there is no cross whatsoever with respect to OA1 being in-charge

S.Q. Pathan / N.S. Chitnis 208/867

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of a squad, in which there were hawaldars deputed from other

police stations and that the said staff was not doing any work of

D.N. Nagar Police Station and that Dhabbu (A5) would sit

outside the office of OA1 and after making inquiries, would grant

entry to persons to meet OA1; and that A3, a police hawaldar was

working on deputation with OA1.

PW45-Naresh Phalke :

41 PW45- Naresh Phalke was attached to D.N. Nagar

Police Station at the relevant time. He has stated that OA1-PI

Pradeep Sharma was in-charge of squad and he was not doing any

work of the police station; that constables of other police stations

were deputed in the squad and that the persons deputed in the

squad were not doing any official work in the police station.

41.1 PW45 is also a witness to the confinement of Anil

Bheda at Mid-town Hotel. However, this witness has also stated

S.Q. Pathan / N.S. Chitnis 209/867

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in para 3 of his evidence that Virendra was a driver and was

working with the squad and was not attached to their police

station.

41.2 In the cross-examination, although a suggestion was

made to the said witness that he was deposing falsely that there

was a squad of OA1 of constables of other police stations and that

the said persons were not doing any work of D.N. Nagar Police

Station, the same has been denied by the said witness.

PW55 - Mr. Milind More:

42 PW55-Milind More, a constable was attached to

Detection Branch, D.N. Nagar Police Station, Mumbai, of which

Pradeep Suryawanshi (A9) was the P.I (Crime). He has stated that

OA1 used to sit in the Office of the D.N. Nagar Police Station;

that previously there was one room for the duty in-charge; that

that the said room was demolished and a new room was

S.Q. Pathan / N.S. Chitnis 210/867

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constructed there, for the police squad working under Pradeep

Sharma (OA1). PW55 has further stated that there was a squad

working under OA1, who were on deputation from other police

stations and that the said squad did not do any work of D.N.

Nagar Police Station. He has further stated that no one from D.N.

Nagar Police Station used to visit the room of OA1 and that

people from outside the police station would visit the room of

OA1. He has further stated that there was a Qualis, which was

being used by the squad of OA1 and that the said vehicle would

remain outside the office of OA1.

42.1 With respect to squad, the only cross-examination of

this witness relates to omissions in his statement dated 2 nd

February 2010, wherein, he has not disclosed that the encounter

was done by OA1 and that A9 was the member of the said squad

of OA1. There is no suggestion nor cross of PW55, with respect

to what has been deposed by him i.e. with respect to deputation

of persons from other police stations to work in the squad under

S.Q. Pathan / N.S. Chitnis 211/867

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OA1; that the said squad would not do any work of D.N. Nagar

Police Station; and, that there used to be one Qualis used by

OA1, which used to remain outside the office of OA1.

42.3 The aforesaid four witnesses i.e. PW32-Sumant

Bhosale, PW43-Madan More, PW45-Naresh Phalke and PW55-

Milind More have been examined by the prosecution to prove

both, confinement of Anil Bheda as well as on the point of

existence of the squad of OA1.

43 Apart from the aforesaid, there is another witness i.e.

PW63-Arun Apte, who has also spoken with respect to the

existence of a squad.

PW63 - Arun Vasantrao Awate

44 PW63 was working as an ACP, D.N. Nagar Division

under Zone-IX, at the relevant time. He has stated that D.N.

S.Q. Pathan / N.S. Chitnis 212/867

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Nagar Police Station, Oshiwara Police Station and Versova Police

Station falls within the jurisdiction of D.N. Nagar Division. As far

as existence of a squad is concerned, PW63 has stated that at the

relevant time OA1 alongwith some police personnel served in a

special squad and worked as per the directions of the superior

officer; that as per his knowledge A15 and some constables were

on deputation in the squad of OA1; that as per the orders of

Addl. CP, Western Region (PW78), the said squad was formed and

that A15 was one of the member of the said squad. PW63 has

further deposed that on 11th November 2006 when he was at the

Andheri Sports Complex in connection with a programme

"Umang" to be held on 12th November 2006, Vijay Sonawane,

Senior P.I, of the Versova Police Station met him at the venue and

informed him about an exchange of fire between the police and

accused within the jurisdiction of the Versova Police Station; that

on the next day i.e. on 12 th November 2006, he learnt that one

Ramnarayan @ Lakhanbhaiya was killed by a joint team from

Versova Police Station and D.N. Nagar Police Station; and that on

S.Q. Pathan / N.S. Chitnis 213/867

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11th November 2006, he had not received any information as

regards Ramnarayan @ Lakkhanbhaiya.

44.1 In his cross-examination vis-a-vis formation of a

squad, he has stated that he had no occassion to see any orders as

regards formation of a special squad under OA1 by the superior.

As far as station diary entries with respect to some of the accused

who were sent on deputation, PW63 has stated in his cross that

he does not remember whether there are any such entries nor

had he any occasion to inquire with the Senior P.I. of Oshiwara

Police Station, Versova Police Station and D.N. Nagar Police

Station, as to on whose orders the said officers/personnel were

deputed in the special squad under OA1. He has further admitted

in his cross that he did not issue any letter to the superior officer

or to the P.I. of the police station under him, for making inquiry

as to on whose orders the special squad was formed or

constituted. PW63 voluntarily deposed that he had knowledge

that the squad was formed by the orders of the Addl. C.P. He has

S.Q. Pathan / N.S. Chitnis 214/867

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admitted that it was correct to say that a special squad which

included officers from different police stations could not be

constituted without written authority nor he had any occassion to

see the orders of the Addl. C.P.

44.2 Although, PW63 has stated in his cross in para 24 that

he had orally asked OA1 as to by whose orders the special squad

was formed, since OA1 was attached to the police station within

his jurisdiction, he did not ask the Senior P.I of any of the police

stations from his jurisdiction to furnish record as regards to the

formation of the special squad and deputation of the officers to

the said squad. PW63 has voluntarily deposed that he had

knowledge that a squad was formed by the orders of the Addl.

C.P (PW78) and that he had no occasion to inform anybody as

regards the formation of the said squad, till his statement was

recorded by the SIT on 5th July 2010. The said witness has

denied the suggestion that he was falsely deposing, that as per the

orders of the Addl. C.P (Western Region) PW78, a special squad

S.Q. Pathan / N.S. Chitnis 215/867

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was formed and OA1 alongwith some police personnel was

serving in the said special squad and that A15 was also a member

of the said special squad.

45 Infact, all the aforesaid witnesses, except PW78-Bipin

Bihari have deposed with respect to the existence of a squad

under OA1 and that some of the witnesses have deposed that

police from different police stations were deputed to D.N. Nagar

Police Station on the orders of PW78-Bipin Bihari, Addl.C.P, West

Region, to work in the squad of OA1.

46 The evidence of these witnesses as stated aforesaid,

clearly shows the formation and existence of a squad under OA1,

albeit being illegal.

PW78- Bipin Bihari, Addl. CP, West Region :

47 PW78-Bipin Bihari was posted as the Addl. C.P,

S.Q. Pathan / N.S. Chitnis 216/867

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Western Region, at the relevant time. He had three zones under

him i.e. Zone-VIII, Zone-IX and Zone-X; each zone having 2 to 3

divisions i.e. in all, there were 8 to 9 divisions under the

jurisdiction of the said witnesses i.e. around 19 to 20 police

stations within his jurisdiction. He has stated that at the relevant

time, he was using mobile No. XXXXXX3333 and that the said

number was not in his name but in the name of one of his friend

i.e. Ketan Kanakiya. He has further stated that the said number

was given to him by Kanakiya and was probably in the name of

his company; and that the said number was with him since 2003-

2004 onwards till 2007. He has stated that D.N. Nagar Police

Station, Versova Police Station and Oshiwara Police Station were

within his jurisdiction at the relevant time and that he knew PI

Pradeep Sharma (OA1) from Crime Branch and Pradeep

Suryawanshi (A9).

47.1 He has stated that on 11 th November 2006, he was in

his office, on morning duty and in the evening, he was at

S.Q. Pathan / N.S. Chitnis 217/867

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Andheri Sports Complex, where `Umang Programme' was to be

held on 12th November 2006. He has stated that for the purpose

of rehearsal and security arrangements, he being in-charge of the

said programme, was present at the venue. He has stated that he

probably was at the venue on 11 th November 2006 upto 22:00

hrs, when he learnt about an incident i.e. firing between police

and some criminals and that the firing had taken place within the

jurisdiction of Versova Police Station.

47.2 Although, PW78, was not questioned on formation of

squad in his examination-in-chief, in his cross-examination, PW78

has denied the formation of any special squad during January

2006 to June 2007 and has stated that it was banned by the

previous CP. He has further stated in his cross-examination that

no special squad under PI Pradeep Sharma (OA1) was formed

under his oral orders. He has also admitted that no police

officers or staff were deputed by him to D.N. Nagar Police

Station to be part of the special squad under PI Pradeep Sharma

S.Q. Pathan / N.S. Chitnis 218/867

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(OA1). He has further in his cross-examination deposed that no

police officers or staff could be transferred from one police

station to another, by oral orders and unless there are orders in

writing; and, that he had not issued any oral orders of such

officers or staff from one police station to another police station.

48 It is pertinent to note that the learned trial Judge has

rejected the circumstance of formation of squad under OA1, by

placing implicit reliance only on the evidence of PW78-Bipin

Bihari, Addl.C.P, without even considering the other evidence i.e.

of all the other witnesses vis-a-vis formation of squad, that had

come on record. It is also pertinent to note, from a perusal of

the evidence of PW78, that formation of squads was banned by

the previous C.P, and as formation of squads was illegal, there was

no question of PW78 admitting that under his oral direction, any

such squad was formed. What is pertinent to note, is, that the

said evidence of PW78 is contrary to the evidence of the other

witnesses, which has come on record i.e. the evidence of

S.Q. Pathan / N.S. Chitnis 219/867

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Ajendrasingh Thakur (PW87), Dhiraj Koli (PW25), Prataprao

Kharate (PW79) and Sanjivan Shinge (PW20), PW32-Sumant

Bhosale, PW43-Madan More, PW45-Naresh Phalke, PW55-

Milind More, PW63 - Arun Awate and the documentary evidence

in support thereof i.e. of deputation of some of the constables to

D.N. Nagar Police Station, to work under or assist Pradeep

Sharma (OA1).

49 The documentary evidence relied upon by the

prosecution, as deposed to by the aforesaid witnesses are at

Exhibits 668, 228, 626, 613, 219, 208 and 209.

50 It is pertinent to note, that PC Ratnakar Kamble (A3)

has not denied joining D.N. Nagar Police Station or his presence

in the encounter team, but has questioned what was deposed to

by PW25-PSI Koli, that Kamble (A3) had informed him of the

Addl. C.P. asking him to go on deputation to D.N. Nagar Police

Station to assist Pradeep Sharma (OA1). Although, the entry in

S.Q. Pathan / N.S. Chitnis 220/867

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the Station Diary (Exh. 228) has been challenged by Ratnakar

Kamble (A3), we do not see any merit in the said challenge,

inasmuch as, it is an entry made in the course of the official duty

by PW25. The entry of Juhu Police Station dated 29 th July 2006

i.e. Exh. 228 is as under :

fnukad ?kVuk 'ksjk

20-35 ¼54½ iks- m- fu- dksGh Iks-f'k-d 31963@ fuosnu djrkr fd- ek- vIij lk-fo- gs fM-,u- iksyhl vk;qDr] if'pe uxj ;sFks izknsf'kd foHkkx] ckanzk] ;kaP;k fu;qDrhoj jokuk vkns'kkus iks-f'k-dz 31963@lk-fo- gs iks-fu- izfni 'kekZ fM-,u-uxj iks- Bk.ks ;kaP;kdMs drZO;koj gks.;kl jokuk

English translation of the extract from Station Diary of Juhu Police Station, written in Marathi, reads thus :

S.Q. Pathan / N.S. Chitnis 221/867

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20:35 (54) P. S. I. Koli states that, P. C.No. P.C.No.31963 left 31963 left for reporting the duty to P. I. for reporting the Pradeep Sharma, D.N. Nagar Police duty at D.N. Station, as per the directions of the Nagar on Additional Commissioner of Police, deputation.

Western Territorial Department, Bandra.

(Ratnakar Kamble (A3) is P.C.No.31963)

51 Considering the aforesaid, i.e. the evidence of PW25-

Dheeraj Koli and the Station Diary entry (Exh. 228), the

contemporaneous record i.e. the disclosure made by Ratnakar

Kamble (A3) to him, that the Addl. C.P, West Region had directed

him to assist Pradeep Sharma (OA1) of D.N. Nagar Police Station,

and there being no challenge to the said disclosure, we find no

reason to disbelieve his testimony, that Kamble (A3) had been sent

on deputation to assist Pradeep Sharma (OA1) of D.N. Nagar

Police Station. The said evidence also stands fortified by the entry

at Exh. 228, which entry has been identified by this witness.

Although, learned counsel for the appellants urged that the

witness did not verify with the superiors, the question of verifying

S.Q. Pathan / N.S. Chitnis 222/867

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with the superiors, in this case Addl. C.P, West Region (PW78),

would not arise. PW25-Dhiraj Koli, was a PSI attached to Juhu

Police Station. The said witness performed his duty by making

noting in the Station Diary, as disclosed by A3 and would have

no reason to doubt what was disclosed by A3. It is pertinent to

note, that no officer would have the courage to question his

superior officer, in the present case, the Addl. C.P, West Region

(PW78) whether, A3 was deputed by him to D.N. Nagar Police

Station or not. It would amount to insubordination and as such,

we find no merit in the appellants' submission that the

information received was not verified by PW25, from the

superior officers. The entry was made in the official course in the

station diary and there is no reason to disbelieve the same.

52 PW79 - Prataprao Kharate was attached to D.N.

Nagar Police Station as PSI, at the relevant time. He has deposed

to with respect to A7 and A3 joining from Versova Police Station

to D.N. Nagar Police Station. The said witness produced A7 and

S.Q. Pathan / N.S. Chitnis 223/867

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A3 before PW87-Sr. P.I. Ajendrasingh Thakur, at D.N. Nagar

Police Station and an entry to that effect was made in the Station

Diary, as per his (PW79's) instruction. The entry in the Station

Diary has been exhibited, as Exhibits 626.

52.1 The Station Diary i.e. Exh. 626 at Sr. No. 33 deposed

to by PW79-API Pratap Kharate, attached to D.N.Nagar Police

Station, reads thus :

fnukad ?kVuk 18-10-06 'ksjk

¼33½ iks- m- fu- [kjkMs vls fuosnu Ikks-f'k- djrkr dh ek- vIij iksfyl 31241] vk;qDr eks- if'pe izknsf'kd 31743 foHkkx] eqacbZ ;kaP;k izfrfu;qDrho vkns'kkUo;ss olksZok iksyhl j gtj Bk.ksl use.kwfdr vlysys iks- >kysckcr f'k- 31241@rkukth HkkÅlks nslkbZ o 31743@ fouk;d iks-fu- ckGklkgsc f'kans gs nk-ukS-uxj iz'kklu iksyhl Bk.ks ;sFks izfrfu;qDrhoj foHkkfx; vkt jksth gtj >kys- dkjdqu uksan ?ks.ks-

S.Q. Pathan / N.S. Chitnis 224/867

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English translation of the extract from Station Diary, written in Marathi, reads thus :

Date Incident 18.10.06 Remark

(33) P. S.I. Kharade states that, as per the Regarding P. C. 31241 directions of the Additional and 31743 remaining Commissioner of Police, Western present on deputation. Territorial Department, Mumbai, P. C. 31241/Tanaji Bhauso Desai and Divisional Clerk 31743/Vinayak Balasaheb Shinde attached to P. I. attached to Versova Police Station, Administration remained present at D.N. Nagar shall make entry. Police Station on deputation.

52.2 Relevant portion of letter dated 18 th October 2006,

(Exh. 613), sent by Senior P.I of Versova Police Station, Vijayrao

Sonawane, to Senior P.I. D.N. Nagar Police Station reads thus :

ßmijksDr fo"k;kl o lanHkkZl vuql:u iks-f'k-dz- 31241 rkukth HkkÅlks nslkbZ o 31743 fouk;d ckGklkgsc f'kans ;kauk nk-ukS-uxj iksyhl Bk.ks ;sFks izfrfu;qDrhoj ek- vij iksyhl vk;qDr] if'pe izknsf'kd foHkkx eqacbZ ;kauh nqj/ouhOnkjs vknsf'kr dsY;kus ueqn iksyhl veynkjkuk nk-ukS-uxj iksfyl Bk.ks ;sFks gtj gks.;kdjhrk vkt fnukad 18@10@2006 jksth

S.Q. Pathan / N.S. Chitnis 225/867

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dk;ZeqDr dj.;kr vkys vkgs-Þ

English translation of the above extract, reads thus :

"In connection with the abovenoted subject and reference it is submitted that as the Additional Commissioner of Police, Western Territorial Department, Mumbai, directed on telephone to depute the police officials by names Tanaji Bhauso Desai, P. C. No. 31241 and Vinayak Balasaheb Shinde, 31743 at D.N. Nagar Police, they are relieved from their duties on this day, dated 18.10.2006 to remain present at the D.N. Nagar police station."

53 It is pertinent to note that Tanaji Desai (A2) and

Vinayak Shinde (A7) have challenged the entries made in the

Station Diary and the memo of their transfer from Versova Police

Station on deputation to D.N. Nagar Police Station. However,

despite the challenge, Tanaji Desai (A2) has infact supported C.R.

No. 302/2006 i.e. that it was a genuine encounter. As far as

Vinayak Shinde (A7) is concerned, he has pleaded ignorance of

C.R. No. 302/2006. It is the prosecution case that Vinayak

Shinde (A7) was party to the abduction of the deceased and Anil

Bheda. Nothing is elicited in cross of PW79-API Pratap Kharate,

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so as to discredit the testimony of this witness with regard to

what has been deposed to by him and the entry in the Station

Diary and the letter. Both the said exhibits reveal that A7 and A2

were sent to D.N. Nagar Police Station, on deputation on the oral

direction of the Addl. C.P., West Region (PW78) from Versova

Police Station.

54 Similarly, from a perusal of the evidence of PW20-

Sanjivan Shinge, it is evident that Tanaji Desai (A2), Ratnakar

Kamble (A3), Vinayak Shinde (A7), Prakash Kadam (A16) were

on deputation and were working with Pradeep Sharma (OA1).

The said evidence has gone unchallenged. PW20-Sanjivan Shinge

has categorically deposed that he was not assigning duties to these

persons and hence there were no entries made by him in the Duty

Register maintained by him. This has been again admitted by

PW20, in his cross. As noted earlier, the formation of squad was

illegal and therefore, the question of there being anything in

writing, would not arise. The evidence of PW20 also to the

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extent that he was not receiving information about the leave of

these constables, who were on deputation, has gone

unchallenged.

55 PW87-Ajendrasingh Thakur has deposed with

respect to letters/order issued in the name of Senior P.I., D.N.

Nagar Police Station and has stated that as per the oral order of

Addl. C.P, West Region, A13 was to work with OA1 and A9.

The relevant portion of the said letter, which is marked in the

evidence of PW87 as Exh. 668 is reproduced herein-under:

"OFFICE ORDER As per the oral Order of Addl. Commissioner of Police, West Region, Bandra (W), Mumbai, P.C.No. 10502/D.N.Nagar Division, (Devidas G. Sakpal) has been working with P.I. Shri Pradeep Sharma and P.I. Pradeep Suryawanshi w.e.f. 21.8.2006.

Sd/-

Sr. Inspector of Police, D.N. Nagar Police Station, Mumbai"

56 From a perusal of the aforesaid, it is evident that there

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was a squad, albeit, illegal, to assist Pradeep Sharma (OA1).

PW87-Ajendrasingh Thakur, in his evidence, has clearly stated

that there was a squad of PI Pradeep Sharma (OA1) and that 4

police constables had come from outside i.e. Tanaji Desai (A2),

Ratnakar Kamble (A3), Vinayak Shinde (A7) and Dilip Palande

(A15) and so was Devidas Sakpal (A13). According to PW87, the

said appellants/accused were appointed by the orders of the Addl.

C.P, West Region (PW78) and that it was an oral and not a

written order. PW87 has further deposed that the squad of

Pradeep Sharma (OA1) would do special operations under the

directions of the Addl. C.P, West Region (PW78) and that the

work of the said squad was confidential and as such, he did not

make any inquiry about their work. It is pertinent to note, that

there is absolutely no cross-examination of the said witness nor

any suggestion, as to what was deposed by PW87-Ajendrasingh

Thakur, with respect to formation of the squad under Pradeep

Sharma (OA1). Similarly, PW25-Dheeraj Koli has in his evidence,

stated that PC Ratnakar Kamble (A3) was attached as a PSI to

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Juhu Police Station. He has stated that on 29 th July 2006, at

20:30 hrs., PC Kamble (A3) came to him, when he was attached

to Juhu Police Station and disclosed that the Addl.C.P, West

Region, had directed him to assist PI Pradeep Sharma of D.N.

Nagar Police Station and therefore, necessary Station Diary entry

of leaving for D.N. Nagar Police Station be made. He has stated

that accordingly, PSI Nalawade, who was maintaining the Station

Diary made an entry, as requested by him. The said witness has

identified the handwriting of PSI Nalawade and has deposed that

the said entry, which is at Exh. 228 was as per his say. Although,

the said witness was confronted with the said document i.e. Exh.

228, nothing substantial is elicited in his cross-examination, so as

to disbelieve his testimony with respect to the said entry. We

have, while considering the evidence of PW25, as stated

aforesaid, reproduced Exh. 228 with respect to the entry made at

the instance of the said witness, of leaving Juhu Police Station and

joining D.N. Nagar Police Station and find no reason to disbelieve

the entry so made.

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57 PW79-Pratap Kharate, attached to D.N. Nagar Police

Station has also placed on record the memo handed over by

Vinayak Shinde (A7) and PC Tanaji Desai (A2), who had come

from Versova Police Station to D.N. Nagar Police Station on 18 th

October 2006. At the instance of Ajendrasingh Thakur (PW87),

PW79 effected an entry in the Station Diary, in the handwriting

of PSI Samir Faniband. He has stated that the said entry was

made as per his instructions. The said witness has produced the

original Station Diary i.e Exh. 626, relevant entry being at Serial

No. 33, which is reproduced in the evidence of PW79. Although,

the said witness, in his cross-examination, has admitted that he

had not received any letter from Addl. C.P addressed to D.N.

Nagar Police Station, nor did he make any inquiry about it at the

office of the Addl. C.P, West Region (PW78), it is pertinent to

note that the said appellants i.e. Vinayak Shinde (A7) and Tanaji

Desai (A2) had produced a memo (Exh. 613) and as such, there

was no reason for the said officer to disbelieve what was disclosed

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by his colleagues, also police officers i.e. Vinayak Shinde (A7) and

Tanaji Desai (A2). Questioning a Senior Officer, i.e. Addl. C.P,

West Region, would amount to insubordination. Infact, though

the said appellants/accused i.e. Vinayak Shinde (A7) and Tanaji

Desai (A2) have challenged the entries made in the Station Diary

and the memo of their transfer from Versova Police Station to

D.N. Nagar Police Station, Tanaji Desai (A2) has infact supported

C.R. No. 302/2006 i.e. it was a genuine encounter, whereas,

Vinayak Shinde (A7) has pleaded ignorance of C.R. No.

302/2006. Both the said accused have not seriously disputed that

they were working at D.N. Nagar Police Station at the relevant

time. Infact, there is no reason to disbelieve the testimony of

PW79-API Prataprao Kharate and the Station Diary entry

produced by him at Exh. 626 and the memo (Exh. 613).

Similarly, the evidence of PW20-Sanjivan Shinge, who was the

Head Constable at D.N. Nagar Police Station and would assign

duties, cannot be disbelieved, inasmuch as, he has categorically

stated in his evidence that Tanaji Desai (A2), Ratnakar Kamble

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(A3), Vinayak Shinde (A7), Dilip Palande (A15) were on

deputation and were working with Pradeep Sharma (OA1). The

said evidence has gone unchallenged. Infact, the evidence of

PW20-Sanjivan Shinge that he was not assigning any duties to

these persons and hence, no entries were made by him in the

Duty Register maintained by him, has also been admitted by the

said witness, in his cross-examination. As is evident, formation of

squad was illegal and therefore, the question of there being

anything in writing, would not arise. Even the evidence of

PW20-Sanjivan Shinge that he was not receiving any information

about the leave of these constables i.e. Tanaji Desai (A2),

Ratnakar Kamble (A3), Vinayak Shinde (A7), Dilip Palande (A15),

who were on deputation, has gone unchallenged. Each of these

witness, as stated aforesaid, have corroborated each other with

respect to the deputation of some of the appellants/accused, as

discussed herein-above to D.N. Nagar Police Station, to assist

Pradeep Sharma (OA1) i.e. to work in his squad and about the

existence of a squad under OA1 and as such, we find no reason to

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disbelieve the overwhelming evidence that has come on record,

with respect to the same.

58 PW78-Bipin Bihari, Addl. C.P, West Region, for

obvious reasons, has denied the existence of the squad, since the

formation of squads was banned by the previous CP and as such,

was illegal. It is obvious, that PW78 was suppressing the same,

lest, that would have led to some complications for him. PW78

has not only denied formation of squad under OA1, but has also

denied deputing police personnel from other police stations to

D.N. Nagar Police Station, despite the evidence of other

witnesses, including entries in station diaries pointing to the

contrary. Station diary entries reveal that the deputation was

done on the oral orders of the Addl. C.P, West Region. The

prosecution relied on several calls exchanged between OA1

(which was on A5's name) and PW78. OA1 has denied using

A5's mobile and PW78 has denied knowing A5 - Hitesh Solanki

@ Dhabbu. This, we will deal in greater detail whilst dealing

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with the circumstance of CDR's/Murder. Thus, in the facts,

PW78 cannot be termed as a reliable witness and as such it is not

possible for us to place any reliance, much less implicit reliance

on his evidence having regard to the overwhelming evidence on

record to show that a squad, albeit illegal existed under OA1.

59 There is nothing on record to suggest that the

witnesses with respect to formation of squad, had any reason to

depose as stated aforesaid, which evidence, to a great extent, has

also gone unchallenged. There is documentary evidence adduced

and proved by the prosecution also in support thereof, that

officers were deputed to D.N. Nagar Police Station to work under

OA1 on the orders of PW78-Bipin Bihari, Addl. C.P, West Region.

Although much ado is made by the learned counsel for the

accused that the witnesses had not confirmed the veracity of what

was told to them, with the Addl. C.P, West Region, it is pertinent

to note, that all the witnesses were junior officers, who had no

reason to disbelieve what was told to them by the accused, who

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themselves were police personnel. Even otherwise, junior officer

would seldom find courage to question a high ranked officer i.e.

PW78. We find no merit in the said submission. Thus, we find

that the prosecution has proved through cogent, legal and

admissible evidence that a squad existed under Pradeep Sharma

(OA1) who was posted at D.N. Nagar Police Station and that

some police personnel were deputed from different police

stations to assist OA1 in his squad. Some of the police personnel

from other police stations were Tanaji Desai (A2) and Vinayak

Shinde (A7) from Versova Police Station, Ratnakar Kamble (A3)

from Juhu Police Station and Palande (A15) from Kalachowki

Police Station. So also amongst others, Kadam (A16) and Devidas

Sakpal (A13) were assisting OA1. In addition, there is

documentary evidence to show that A11, A17 and A19 proceeded

from Versova Police Station to D.N. Nagar Police Station for

confidential work on 11th November 2006. There is a station

diary entry to that effect, both at Versova Police Station (Exhibit

884A) and D.N. Nagar Police Station (Exhibit 669A). According

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to the prosecution, apart from the police personnel, there were

some private persons, Shailendra Pandey @ Pinky (A4), Hitesh

Solanki @ Dhabbu (A5) and Akhil Khan @ Bobby (A6), who

were also members of the said squad of OA1. The evidence of

some of the witnesses, will show, that A5 and A6 would come to

meet OA1. Infact, PW87 has identified A5 and A6.

60 It is also pertinent to note, that the evidence of

PW87-Ajendrasingh Thakur, reveals, and which fact is not

disputed by the accused, that in the Kala-Ghoda encounter

(double murder) case i.e. C.R. No.545/2006, some of the accused

in the present case were also the members of the said encounter

team consisting of Pradeep Sharma (OA1), Pradeep

Suryawanshi (A9), Dilip Sitaram Palande (A15), Arvind

Sarvankar (A22), Anand Patade (A18), Prakash Kadam (A16),

Ratnakar Kamble (A3), Tanaji Desai (A2) and Vinayak Shinde

(A7), alongwith 2 others.

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61 We may note, that the trial Court has not accepted

the formation of squad under OA1, by placing reliance only on

the evidence of PW78-Bipin Bihari, despite there being

overwhelming evidence of other witnesses as well as documentary

evidence as stated aforesaid, to the contrary, showing formation

of a squad under OA1 and deputation of some of the accused to

work under OA1's squad. The finding recorded by the trial

Court being contrary to the evidence on record, cannot be

sustained. We find that the prosecution has proved the existence

of a squad, albeit illegal, under OA1, by adducing oral and

documentary evidence.

ii. ABDUCTION:

62 According to the prosecution, Ramnarayan and Anil

Bheda were abducted in a Qualis vehicle by plain clothes

policemen on 11th November 2006 at about 12:30 hrs., whereas,

according to the appellants/accused, the prosecution had

miserably failed to prove the circumstance of abduction by

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cogent, legal and admissible evidence.

63 It was urged by the learned counsel for the

appellants/accused that PW1 (brother of the deceased) had

cooked up a story to cover up the misdeeds of his brother, who

was a known criminal. Learned counsel for the

appellants/accused submitted that the evidence pertaining to

abduction being hearsay and thus inadmissible, none of the

witnesses examined by the prosecution could have been relied

upon by the prosecution.

64 The question that arises for consideration, is, whether

the prosecution has proved abduction of Ramnarayan and Anil

Bheda on 11th November 2006 at around 12:35 - 12:40 hrs. If it

is proved, the defence of the appellants/accused becomes fate

accompli and as such, the burden would then shift on the

appellants/accused to show what happened to the deceased after

his abduction, till he was shot dead.

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65 The prosecution has set-out the abduction time-line

and has supported the said time-line with the evidence of

witnesses. The said evidence, according to the prosecution, is

duly corroborated by documentary evidence i.e. faxes, telegrams

and CDRs.

10th NOVEMBER 2006

16:45 to 20:10 A4 was outside Anil's house keeping a watch. Thereafter, A2, A3, A6 and A7 are also stated to have arrived near Anil Bheda's House, at Vashi.

11th NOVEMBER 2006

00:21 While at Mira Bhayandar, A4 called Subhash Patel @ Lefty (Informer).

05:25 or 05:22 While at Mira Bhayandar, A4 called A7, who was at Kalwa, Thane.

06:31 or 12:27 A4 and A7 alongwith A8, A10, A12 and A21 reached near the house of Anil Bheda.

During this time, Subhash Lefty was

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also nearby. 09:04 Ramnarayan called his wife from Anil Bheda's house.

10:29 Ramnarayan called PW38-Dheeraj Mehta from Anil Bheda's house.

12:15 Ramnarayan and Anil Bheda reached PW38's shop, at Sector 9-A, Vashi.

12:27 A4 called A7. The said call started at Sector 29, Vashi. The said call was of 553 seconds. (Exhibit - 580 )

12:31 to 12:33 After reaching PW38's shop, when Ramnarayan was waiting outside PW38's shop, he called two different persons from Sector-9-A, whilst he was standing on the road. The same is supported by CDR i.e 1st call was made at 12:31 and its duration was 50 seconds. The second call was at 12:33 and its duration was 110 seconds. (Thus, till 12:35 Ramnarayan was at Sector 9-A).

12:39 After abduction from Sector 9-A, A7 called OA1 and Subhash Patel @ Lefty called A4.

12:40 Nilesh informed PW38 that his friend and his friends' friend were

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taken away by 5 - 6 persons in a qualis vehicle. Accordingly, several calls were thereafter exchanged between PW38, PW57, PW1, PW3 and PW2.

About 13:00 PW57 called PW38 and inquired about Ramnarayan and Anil Bheda, pursuant to which PW38 informed PW57 about their abduction.

After 13:00 PW3 received repeated calls from different persons including PW57 who informed him about the abduction.

(In the meantime) A4 and A7 went to Bhandup 13:14 to 13:20 Complex from Vashi and A2, A3 and A6 came to Bhandup Complex.

Around 14:00 PW1 received a call from PW3 informing him about the abduction.

(PW1 and PW3 are brothers of Ramnarayan).

About 14:00 or 14:15 PW1 reached the shop of PW3 and was discussing with him about the information received.

At that time, PW3 received one call.

PW1 took the call and talked with the caller, who disclosed his name as Dheeraj (PW38), and his mobile

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number as XXXXXX9531.

About 14:30 Ramnarayan and Anil Bheda were brought to D.N. Nagar Police station in separate vehicles.

About 14:30 to 15:00 PW38 went to PW40's (Anil Bheda's wife house), and informed her about the abduction. It was decided by PW40 to wait till 17:00 and then decide future course of action.

Around 15:00 During the said period, PW1 called PW38 and spoke to PW40 on PW38's mobile phone.

PW1 told PW40 to send telegram and fax messages to the authorities, however, she expressed her inability to send the same and decided to wait till 5:00 p.m.

Between 15:00 to PW1 and PW2 called some police 16:00 officials and gave them information of abduction and requested them to make inquiries about the same and revert back, however, they did not get any information.

About 16:08 PW1 and PW2 sent Telegrams to the Commissioner of Police (C.P), Mumbai, Navi Mumbai and Thane

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from Matunga Telegraph Office.

About 16:44 PW1 and PW2 sent Fax messages to C.P., Navi Mumbai and Thane, which was received by them.

About 17:45 PW1 was told by someone on phone that Ramnarayan and Anil Bheda were taken away by API Prakash Bhandari of Belapur Crime Branch.

About 18:28 PW1 and PW2 sent Telegrams to C.M. and Dy. C.M. Maharashtra State from Dadar Telegraph Office.

About 18:30 PW40, Aruna Bheda was dropped at Vashi Police Station by PW38 at 18:00 - 18:30 hrs.

PW40, Aruna Bheda lodged a missing Complaint No. 51/2006 with the Vashi Police Station i.e. her husband Anil Bheda was missing.

About 20:00 PW1 and PW2 reached Belapur Crime Branch office to make inquiry about Ramnarayan and Anil Bheda, but did not get any information.

About 20:10 to 20:13 Alleged encounter took place at Nana Nani Park, 7 Bungalows, Andheri (W), Mumbai. (As per the FIR lodged by A9 i.e. C.R. No.302/2006, registered with the Versova Police

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Station).

About 20:30 PW3 informed PW1 that there was breaking news on all news channels, that their brother was shot dead in an encounter. At that time PW1 and PW2 were at Belapur C.B.D. About 22:15 PW1 and PW2 reached Versova PS along with two advocates and and a driver.

About 22:30 PW1 and PW2 alongwith two advocates and driver reached Nana Nani Park.

About 22:44 PW1 takes a video clipping of the spot on his Mobile Camera. The said Video Clipping shows that a newspaper was placed on the spot of blood and one stone was kept on the newspaper. It also shows the electric pole number.

12th NOVEMBER 2006

13:19 OA1 calls PW104 (A.T. Patil) to come to D.N Nagar Police Station to talk to Anil Bheda. (PW104 has turned hostile).

15:16 PW104 reaches D.N. Nagar Police Station.

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16:49 Anil was taken to Vashi Police Station, where his wife (PW40) had lodged a missing complaint. The said complaint was withdrawn by PW40 and statements of PW40 and Anil Bheda were recorded.

22.05 to 22:51 PW40 and Anil Bheda were taken from Vashi Police Station by A2 and A3 to their house and immediately thereafter, PW40, Anil Bheda and their son Parth, were taken to Bhatwadi, (PW40's parent's house), by A2 and A3.

13th NOVEMBER 2006 Anil Bheda was taken to D.N. Nagar Police Station and from there was brought back to Bhatwadi and from there Anil, his wife (PW40) and son Parth were taken to Kolhapur by A5 and a driver in a Konduskar bus.

14th NOVEMBER 2006 The aforesaid persons reached Kolhapur where they stayed in a hotel, opposite the bus stand for a few days i.e. from 14 th November 2006 to 18th November 2006.

19th NOVEMBER 2006 All the aforesaid persons reached to Mumbai. Anil was taken to Mid-

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11th/12th DECEMBER 2006 town hotel, Andheri, and was kept in the said hotel by the appellants/accused in confinement from 19th November 2006 till around 12th December 2006.

66 The witnesses examined by the prosecution to prove

abduction are PW38-Dheeraj Mehta; PW57-Shankar @ Girish

Dalsingh; PW3-Shyamsunder Gupta; PW1-Ramprasad Gupta;

PW2-Ganesh Iyer; and PW40-Aruna Bheda. The documentary

evidence produced and relied upon by the prosecution are faxes,

telegrams, station diary entries etc, to prove that Ramnarayan

and Anil Bheda were abducted on 11 th November 2006 at around

12:35 hrs. CDRs are also relied upon to corroborate the evidence

of the witnesses.

PW38 : Dheeraj Mehta

67 Dheeraj Mehta, a friend of Anil Bheda and

Ramnarayan was examined by the prosecution, as PW38. The

said witness was conducting his business from one shop by the

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name of 'Trisha Collection', after the said premises was

partitioned into 3 to 4 shops. PW38 has stated that he knew Anil

Bheda, as he was working as an agent in APMC market and as he

had provided stones to the relatives of Bheda; that he had also

visited Anil Bheda's house and as such knew Aruna Bheda

(PW40); that he also knew Bheda's friend, Pandeyji

(Ramnarayan), who was dealing in real estate, as he too had

purchased stones from him.

67.1 According to PW38, on 11th November 2006, he had

been to his shop at about 10:30 hrs.; that at about 12:15 hrs Anil

Bheda and his friend Pandeyji came to his shop; that as there was

no place to sit in the shop, he asked them to wait outside; that at

about 12:40 hrs, one Nilesh came to his shop and informed him

that your friend had been taken away by someone; that he asked

Nilesh how it happened, Nilesh disclosed that his friend-Anil

Bheda (who regularly visits his shop) and his friend's friend-

Ramnarayan, have been taken away in a Qualis vehicle by 5-6

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persons; that he asked Nilesh as to whether they were police

persons, to which, he replied that the said persons were in civil

dress; that thereafter, he tried to call on Anil Bheda's mobile,

however, his phone was coming switched-off; that after 10-15

minutes, PW38 received a call from one Girish Nepali (PW57),

who was a friend of Pandeyji (Ramnarayan) and Bheda; that he

(PW57) asked if Anil Bheda and Pandeyji had come; that he

(PW38) disclosed to him about the incident that had occurred;

that PW57 told him (PW38) that he would receive a call after

some time and that he should disclose all the facts to him (the

caller); that he received one call from a PCO on his mobile No.

XXXXXX9532; the said person introduced himself as the

brother (PW3) of Pandeyji (Ramnarayan); that the said person

made inquiries about Pandeyji (Ramnarayan), pursuant to which,

he informed him (PW3) about the incident that had occurred;

that thereafter, at about 14.00 to 14:15 hrs, he received one

missed call; that he called on the said mobile number; that the

said person introduced himself as Advocate Gupta (PW1) and

S.Q. Pathan / N.S. Chitnis 249/867

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stated that he wanted to speak about Pandeyji and that he was

Pandeyji's brother, pursuant to which, he again informed him

about the said incident; that Advocate Gupta (PW1) asked him to

lodge a complaint in the police station, however, he did not reply

and disconnected the phone; that he again received a call from

PW1, after half an hour and that PW1 requested him to go to

Anil's house, so as to enable him to talk to Anil's wife; that at

about 14:30 hrs, he went to Anil's house and from his own

mobile, called Gupta (PW1) to enable him to talk to PW40; that

Advocate Gupta (PW1) disclosed to PW40, that there was danger

to the lives of Anil and Pandeyji and hence he gave phone

numbers and fax numbers of police; that he wrote down the

numbers and gave it to Aruna Bheda (PW40); that Advocate

Gupta (PW1) stated that it was likely that they would be killed in

a fake encounter; that after he spoke to Aruna Bheda, she told

him that she will wait till 5:00 pm and then decide the further

course of action and as such he left.

S.Q. Pathan / N.S. Chitnis 250/867

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67.2 PW38 has further stated that Gupta (PW1) again

called him and stated that as he did not lodge a complaint, he

should give this information to the police by dialing 100, which

he refused to do, as he did not want to get involved. According

to PW38, at about 5:00 pm, he went to PW40's house and asked

if she had received any information about Anil; that as no

information was received, he took Aruna Bheda (PW40) and left

her near Vashi Bus Depot, as she wanted to go to the Vashi Police

Station, to lodge a missing complaint regarding Anil Bheda, and

that thereafter, he went home. He has further stated that at about

20:00 to 20:30 hrs, he learnt from the TV news, that there was

an encounter of one Ramnarayan.

67.3 PW38 has further stated that on 12th November 2006,

he received a telephone call from Gupta (PW1), who disclosed

that his brother was killed in a police encounter and that the said

news was being shown on TV; that Gupta (PW1) told him that

Pandeyji's name was Lakhanbhaiya (Ramnarayan). He has

S.Q. Pathan / N.S. Chitnis 251/867

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further stated that although Gupta (PW1) requested him to be a

witness, he refused as he did not want to get involved in the

matter; and that Gupta asked him to show the place from where

Pandeyji (Ramnarayan) was taken away, pursuant to which he

took him to his shop.

67.4 According to PW38, he met Anil Bheda after about

15-20 days of the incident; that he inquired with him about what

had happened on that day, pursuant to which Anil disclosed that

he had been to Shirdi on the said day and that when he asked

about Pandeyji (Ramnarayan), he avoided and left.

67.5 In his cross-examination, PW38 admitted that on 11 th

November 2006, Anil Bheda and Pandeyji (Ramnarayan) waited

outside his shop and that he could not see where the two were

standing; that the distance between the shop and road was about

10 feet; that at the relevant time, he saw Nilesh standing outside

the shop on the road. When a suggestion was put to him, PW38

S.Q. Pathan / N.S. Chitnis 252/867

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denied that he was deposing falsely that Anil Bheda and Pandeyji

(Ramnarayan) visited his shop on 11th November 2006; that one

Mr. Nilesh who has a shop next to his, had not disclosed the

information to him on 11th November 2006; that he had not

disclosed the name of Nilesh to Aruna Bheda; and that SIT told

him to depose that Nilesh gave the information and hence on the

say of SIT, he was falsely stating so.

68 Learned counsel for the appellants submitted that the

evidence of PW38 with respect to abduction cannot be relied

upon inasmuch as, the alleged eye-witness to the incident of

abduction i.e. Nilesh's statement was not recorded by the

prosecution and as such the evidence of PW38 being hearsay, no

reliance can be placed on the evidence of PW38 with respect to

the disclosure made by Nilesh to him.

69 Per contra, Mr. Chavan, learned Spl. P.P submitted

that what was disclosed by Nilesh to PW38 would not be hearsay

S.Q. Pathan / N.S. Chitnis 253/867

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and infact, would be admissible under Illustration (a) of Section 6

of the Evidence Act i.e. under the res gestae principle. The said

submission will be dealt with, a little later, when we analyse the

evidence and the law with respect to the same.

PW57 - Mr. Shankar @ Girish Dal Singh :

70 PW57 - Shankar @ Girish Dal Singh, in his evidence

has stated that on 11th November 2006, he was at home and that

he received a call from Dheeraj Mehta (PW38) from Navi

Mumbai between 12:30 hrs. to 13:00 hrs; that some gaonwale

(villagers) had taken Ramnarayan and Anil Bheda; that as it was

incomplete information, he again called on PW38's mobile, who

informed him that the police from the Crime Branch had taken

Ramnarayan and Anil Bheda; that immediately he called

Ramnarayan's brother-in-law, Babu and Ramnarayan's brother,

Ramprasad (PW1) and informed them of the disclosure made to

him, by PW38. He has stated that the mobile used by him at the

S.Q. Pathan / N.S. Chitnis 254/867

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relevant time was XXXXX9998. He has further stated that after

the encounter of Ramnarayan, he ran away to his village,

apprehending that he too may be killed and returned back to

Mumbai, after about one or one and a half year of the incident.

According to PW57, when he inquired with Janaya Sheth as to

who killed Ramnarayan, he replied that the "game of Lakhan

Bhayya was done by Subhash Lefty."

70.1 In his cross-examination, the said witness confirmed

that on the day of incident, he informed the incident only to

Ramprasad Gupta and Babu; and it was Dheeraj (PW38) who

had told him that Ramnarayan and Anil Bheda were picked up

and taken away. PW57 has further admitted in his cross-

examination, that he did not write down anywhere that, Janaya

Sheth had told him, that Lefty "did the game of Lakhan Bhayya",

and that he did not mention it anywhere or to anyone.

71 Thus, PW57 has corroborated the disclosure made to

S.Q. Pathan / N.S. Chitnis 255/867

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him by PW38 with respect to abduction of Ramnarayan and Anil

Bheda, soon after the abduction and information received from

Nilesh.

PW3 - Shyamsunder Vishwanath Gupta :

72 PW3-Shyamsunder Gupta, one of the brother's of

deceased-Ramnarayan, has stated that on 11 th November 2006,

when he was sitting in his lottery shop, he received a telephone

call; that the said person stated that from front of the said shop,

Ramnarayan and Anil had been forcefully taken in a vehicle by

persons looking like police; that the vehicle was a silver coloured

Qualis vehicle; that he received a call on his mobile, at about

13:00 hrs, when he was present in his shop; that he was using

mobile XXXXXX6540; that at that time, he had two mobile

numbers and that the other mobile number was XXXXX4123;

that within a period of 10-15 minutes, he received 2-3 calls,

narrating the same incident from different persons; that he did

S.Q. Pathan / N.S. Chitnis 256/867

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not know any of the persons who called and hence he got tense

and immediately called his younger brother-Ramprasad, an

advocate (PW1) on his mobile number XXXXXX6490 and told

him that some unknown persons have taken Ramnarayan from

Vashi; that pursuant thereto, PW1 came to his shop; that when

PW1 was at his shop, he again received a call; that he handed

over his phone to PW1; that PW1 asked him the details; that

thereafter on asking the details, PW1 told him that he will make

inquiries with the police as to who the said persons were; that

thereafter, PW1 left and also took his mobile with him; that PW1

informed him that he was going to the office of Ganesh Iyer

(PW2); that he stayed back in his shop after Ramprasad left; that

Subalaxmi, Ramnarayan's wife called him and informed him that

she was trying to call Ramnarayan on his phone, but his phone

was coming switched-off and that she had been informed that

some persons looking like police have taken her husband. PW3

has further stated that there was a television set at his shop and

while watching the television at 20:30 hrs, there was breaking

S.Q. Pathan / N.S. Chitnis 257/867

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news, in which it was relayed that 'one person from Chhota

Rajan Gang, Lakhanbhaiya was killed at Versova, in an

encounter'; that he immediately called Ramprasad (PW1), who

was at Belapur, as he had received information, that one Prakash

Bhandari had taken Ramnarayan; that PW1 told him that he was

returning and that he should come to the office of Ganesh Iyer

(PW2); that he went to PW2's office within 10-15 minutes; that

PW2's office was situated at Sion; that when he reached PW2's

office, neither PW1 nor PW2 were present and that one Advocate

Vijay Desai and another person were there; that at about 9:00 to

21:15 hrs, PW1 and PW2 came there; that PW1 gave him one

mobile, which was of Reliance Company and asked him to give it

at his house, after which PW1 left for Versova. PW3 has further

stated that on the next day, he went to J.J. Hospital at about

21:00-21:30 hrs and was waiting for the dead body of

Ramnarayan to arrive; that at about 23:00-00:00 hrs, the body

arrived in an ambulance; that he asked the Hawaldar to show him

the face, as he wanted to identify the body, however, initially the

S.Q. Pathan / N.S. Chitnis 258/867

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Hawaldar refused but thereafter, he showed him the dead body.

PW3 has further stated that when he saw the dead boy there was

red soil on his legs till the knee and that when he saw the face, he

saw a hole on his forehead; that he requested the police to permit

him to take a photograph of the dead body, however, he was

asked to leave; that he immediately called PW1 and informed

him, pursuant to which, PW1 asked him to return immediately

and not to wait there. He has stated that thereafter he never went

to the police, till his statement was recorded by SIT.

72.1 In his cross-examination, the said witness has

admitted that on 11th November 2006, he came to his shop at

10:00 hrs. and remained in his shop till he received the phone

call; and that he learnt about the incident only on receiving the

phone call. He has admitted that he had not met the said caller

prior to 11th November 2006 or till the date of his deposition;

and that he only knows that the said person, has a mobile shop.

PW3 has admitted that he has not inquired, with Girish Nepali

S.Q. Pathan / N.S. Chitnis 259/867

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(PW57) whether he had personally witnessed the incident; that

from the said caller, he came to know that the incident of

abduction took place in front of the caller's shop in Vashi; and

that the caller informed him that there were 4-5 persons involved

in the said incident.

72.2 PW3 has also admitted in his cross, that he had

received 3 to 4 phone calls about the incident before he called his

brother Ramprasad (PW1); that out of all the callers, he only

knew one i.e. Girish Nepali (PW57); that he had informed his

brother (PW1), that their brother (Ramnarayan) was taken in a

silver coloured Qualis vehicle, from the front of a mobile shop at

Vashi. He has further stated that Article 8 is his first statement in

writing, about the incident and that he had not stated that he had

not informed any other person or asked any other person to make

inquiries, prior to the arrival of his brother or, about the

information received by him relating to the taking away of his

deceased brother.

S.Q. Pathan / N.S. Chitnis 260/867

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72.3 He has further admitted in his cross-examination, that

he has not stated in his affidavit before the learned Metropolitan

Magistrate that when Ramprasad (PW1) had come to his shop

and was talking to him, he received another phone call from the

caller who had given him the information earlier and that he

handed over his phone to PW1, who asked the said caller his

details, and that when PW1 left, he took his phone with him. The

said witness had further admitted that he had not stated in his

affidavit that he had received a call from Subalaxmi, who had

requested him to search for PW1, to which the said witness

informed her that PW1 had gone for making such inquiries; and

that PW1 had asked PW3 to go to the office of Ganesh Iyer at

Sion, where Vijay Desai and one other person was present.

72.4 The aforesaid admissions relied upon by the learned

counsel for the appellants, do not in anyway discredit the

testimony of PW3. These are minor omissions and not material

S.Q. Pathan / N.S. Chitnis 261/867

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omissions and as such do not impact the evidence of PW3 on all

material aspects, which have been duly corroborated by other

witnesses.

PW1-Ramprasad Vishwanath Gupta :

75 PW1-Ramprasad Gupta, an advocate, the brother of

the deceased has in his evidence stated that he was staying at the

relevant time, at Sion Koliwada. He has stated that on 11 th

November 2006, being a second Saturday, he was at his home;

that at about 13:55 hrs, he received a call from his brother (PW3)

on his mobile number XXXXXX6490, informing him that one

person had called him on his telephone 2 or 3 times and had

informed him that Ramnarayan and Anil Bheda were forcibly

taken in a Qualis vehicle by 4 to 5 persons looking like officers

from front of his shop; that at about 13:59 hrs, he called from his

mobile number XXXXXX6490 on his friend's mobile i.e.

Advocate Ganesh Iyer's Mobile No. XXXXXX5384 and

S.Q. Pathan / N.S. Chitnis 262/867

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informed him about the incident and told him to meet him

immediately; that thereafter, he went to PW3's shop, which was

situated at Pratiksha Nagar, Sion Koliwada; that when he was at

PW3's shop, PW3 received a call on his mobile from one person;

that he took the mobile of his brother and spoke to the said

person, and asked him his name and telephone number; that the

said person disclosed his name as Dheeraj (PW38) and gave his

mobile number XXXXXX9531; that when he asked the said

person as to whether he knew who the police officers were and

from where they had come, the said person replied that he was

not aware, and further disclosed that the said police officers were

not like local police officers; that he told that person (PW38) to

immediately go to Anil Bheda's house and tell his wife to speak

to him; that thereafter, at about 14:45 hrs, he went to the office

of Advocate Ganesh Iyer (PW2) at Sion and informed him in

detail about the communication he had received; that at that

time, Ramnarayan's wife Subalaxmi was in a hospital at

Mangalore; that at about 15:30 hrs, he called Subalaxmi, and

S.Q. Pathan / N.S. Chitnis 263/867

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asked her whether Ramnarayan had done anything and whether

she knew about it; that Subalaxmi informed him that she had

received a call from her brother (Babu), who informed her about

Anil Bheda and Ramnarayan being forcibly taken away; that

when he telephoned PW38 on his mobile number

XXXXXX9531 from his Reliance phone number

XXXXXX0012, PW38 told him that he was at the house of

Aruna Bheda (PW40); that he spoke to PW40 and asked her as to

whether any police officers had visited her house and whether

she knew anything, to which she replied in the negative; that

PW2 took his mobile from him and spoke to PW40 and asked

her, her address, pursuant to which she gave her address as Sector

29, Diamond Apartment, Plot No.C-41, Vashi, Navi Mumbai;

that thereafter he spoke to PW38 and asked him his shop's

address; that PW38 disclosed that his shop is at Sector 9, Vashi,

Navi Mumbai and accordingly, he noted down the address on a

paper; that at that time, Aruna was crying and asked him to find

Ramnarayan and Anil and to save their lives; that pursuant

S.Q. Pathan / N.S. Chitnis 264/867

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thereto, he and PW2 called some of the police officers from the

Property Cell and informed them about the incident and

requested them to make inquiry and inform about the same to

them; that he also telephoned his advocate friends and informed

them about the incident and requested them to make inquiry and

to inform him; that he inquired with Mahesh Mule and Shrirang

Shrimane, for the fax numbers of CP of Mumbai, Thane and Navi

Mumbai and that both of them gave the fax numbers, which he

noted down.

75.1 According to PW1, thereafter at about 14:00 hrs, he

and PW2 went to Matunga Telegraph Office and sent a telegram

to the CP, Mumbai, Thane and Navi Mumbai. The contents of

the telegram were 'Ramnarayan Vishwanath Gupta and Anil

Bheda picked up by Plain clothes police men from Sector 9, Vashi

and their lives are in danger. Please help and save their lives' He

has further stated that he also tried to send the message by fax to

the office of the CP, Mumbai, Thane and Navi Mumbai, however,

S.Q. Pathan / N.S. Chitnis 265/867

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the communication could not be done due to technical fault. He

has stated that the form of the telegram was written by PW2 and

it was sent in the name of Aruna Bheda with her address

mentioned on it. He has stated that he received receipt of

payment for sending the telegram. He has further stated that in

the writ petition filed by him in the High Court, the CP, Mumbai

in his affidavit denied having received such a telegram and hence,

he approached the BSNL on 27th November 2006 and sought the

delivery report of the telegram he had sent; that on 29 th

November 2006, he received a report from the telegram office

about delivery of those telegrams to the concerned offices. PW1

has identified the handwriting of Ganesh Iyer, as they were

working in the same office. He was shown the telegram form,

which was sent to the CP of Thane, written by PW2-Ganesh Iyer

in the name of Aruna Bheda. He has identified the handwriting

of PW2 as it was written in his presence. The telegram form

was marked as Exh.-114. The telegram form sent to CP of Navi

Mumbai, was also shown to PW1, which was written by PW2 and

S.Q. Pathan / N.S. Chitnis 266/867

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which was sent in the name of Aruna Bheda. The said telegram

form was marked as Exh.-115. The telegram form sent to CP of

Mumbai, was also shown to PW1, which was written by PW2

and sent in the name of Aruna Bheda. The said telegram form

was marked as Exh.-116. PW1 has further stated that thereafter,

they returned to their office from Matunga Telegraph office; that

on the same day at about 16:45 hrs, he sent faxes to CP, Thane

on fax No. XXXX6660 and CP, Navi Mumbai on fax

No.XXXX4929 from Ratnadeep Stores, Sion. He has stated that

he tried to send a fax to CP, Mumbai on fax No. XXXX1355,

however, it could not be sent as somebody from the other side

would pick the phone, instead of giving a fax tone. PW1 has

further stated that at about 17:45 hrs on 11 th November 2006,

one person telephoned him and told him that his brother and Anil

were taken away by API Prakash Bhandari, Belapur Crime

Branch, pursuant to which he called Advocate Amit Jambholkar

and Advocate Vijay Desai and asked them to make inquiry about

API Prakash Bhandari and find out his contact number and

S.Q. Pathan / N.S. Chitnis 267/867

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communicate to him, if they received any message; that he and

PW2 again went to Matunga Telegraph Office, however, since

the said office was closed, they went to Dadar Telegraph Office,

and at about 18:28 hrs, sent a telegram to the Chief Minister and

Dy. Chief Minister of Maharashtra. As far as the telegrams sent

to CM and Dy. CM are concerned, the said telegrams were

exhibited at Exhibits 117 and 118. He has stated that the

telegram sent to CM was in the handwriting of PW2 and one of

the telegrams which was sent to Dy. CM was in his own

handwriting and the same were sent in the name of Aruna Bheda.

The contents of the telegrams sent to the CM and Dy. CM were

'My husband Anil Bheda and his friend Ramnarayan Gupta has

been picked up by the plain clothes police men from Sector 9,

Vashi, Navi Mumbai and I fear that they may be killed in a fake

encounter." He has further stated that thereafter, he and PW2

went to Belapur Crime Branch at around 19:45 hrs; that he

informed the incident to one constable who was present there in

uniform and asked him, whether the police had brought any

S.Q. Pathan / N.S. Chitnis 268/867

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person; that the constable told him that API Prakash Bhandari

was on leave that day and that he had not brought anybody to the

Crime Branch office; that he requested the constable to show him

the rooms of the Crime Branch office; that the constable showed

him the rooms, however, nobody was found inside; that

thereafter, they went to Belapur Railway Station; that he called

from his mobile, the person, who had given him the said

information about API Prakash Bhandari taking away his brother

and Bheda to Crime Branch and informed him that nobody was

found at Belapur Crime Branch; that when he and PW2 were

having tea at Belapur Railway Station at about 20:30 hrs, PW3

telephoned him on his mobile and disclosed that there was

breaking news on T.V on all channels, that Ramnarayan Gupta

(Lakhanbhaiya) was killed in an encounter by the police at

Versova; that on receiving the said information, he and PW2

returned to Sion on a motorcycle; that while returning, PW2

telephoned Advocate Vijay Desai and informed him that they

were going to the spot at Versova; that Advocate Vijay Desai

S.Q. Pathan / N.S. Chitnis 269/867

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asked them to come to PW2's office and that he too would

accompany them; that PW2 also called his driver to his office;

that after they reached PW2's office, PW3, Advocate Vijay Desai,

Advocate Kudart Shaikh and Driver Raja had already reached the

office of PW2; and that as the battery of his Reliance mobile was

discharged, he handed over the same to his brother PW3 and sent

him to his house.

75.2 PW1 has further stated that thereafter he, PW2,

Advocate Desai and Advocate Shaikh and Driver Raja went in the

car to Versova Police Station and inquired with the police

constable as to whether an encounter of any person had taken

place; that the constable told them that he did not know about

the same and that they should go to the spot at Nana Nani Park,

Versova; that they reached Nana Nani Park at about 22:30 hrs;

that at that time, there was total darkness and there was nobody

and the place was totally quiet; that when they searched, they

found some blood near an electric pole and on the blood a news

S.Q. Pathan / N.S. Chitnis 270/867

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paper "Dopahar Ka Saamna" was kept and a stone was kept on

the newspaper; that they found one vehicle (Jeep type) parked at

some distance and 3 to 4 persons were standing near the vehicle;

that when he asked them whether there was any encounter, they

told him that no encounter had taken place at that spot.

According to PW1, thereafter, they went near a building, situated

on the left side of the spot, by the name Magnum Opus; that one

watchman Rambabu Rajaram Lodh was present there; that they

asked him whether any encounter had occurred at that spot,

however he replied in the negative. Although PW1 has disclosed

to what was disclosed by the said watchman, we do not wish to

reproduce the same, as the same would be inadmissible, being

hearsay.

75.3 PW1 has categorically stated in his evidence that no

police officer was present at the spot. He has stated that he asked

3 to 4 persons, who were present there to disclose their names,

however they did not disclose their names. He has stated that he

S.Q. Pathan / N.S. Chitnis 271/867

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had taken a video clipping of the spot on his mobile and prepared

a CD of the said clipping and had handed over the same to the

police officer. He has stated that he again visited the Versova

Police Station where he was informed by the police constable that

nothing was found at the spot and since he did not receive any

information, he was asked to go to Cooper Hospital. He has

stated that he was enraged, however, his friends told him that

nothing would happen by visiting the hospital and took him

home. He has further stated that Ramnarayan's body was kept

in Cooper Hospital; that on 12 th November 2006 at about 9:00

hrs., he asked his brother Shyamsunder (PW3) to visit J.J.

Hospital for identifying Ramnarayan's body; that pursuant

thereto, PW3 went to J.J. Hospital and identified the body of

Ramnarayan and informed him about the same; that on that day

he called PW38 about 7 to 8 times on his mobile No.

XXXXXX9531 and inquired with him, whether he had any

information of the whereabouts of Anil Bheda, to which PW38

replied that he did not have any information. PW1 has further

S.Q. Pathan / N.S. Chitnis 272/867

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stated that on 13th November 2006 in the morning, he had gone

to Matunga Telegraph Office to obtain the certified copies of the

telegram sent by him on 11th November 2006; that he went to

Dadar Telegraph Office and obtained two certified copies of the

telegrams sent to Chief Minister and Deputy Chief Minister on

11th November 2006; that the Matunga Telegraph Office

obtained his signature and date on the original telegram form for

acknowledging receipt of certified copy. He has identified his

signature on Exhibits 114, 115 and 116 respectively.

75.4 PW1 has further stated that on 13 th November 2006

after getting the certified copies of the telegram, he prepared

detailed complaints on his letter-head, and addressed the same to

the Chief Minister of Maharashtra and Dy. Chief Minister of

Maharashtra and sent the same by hand delivery and obtained

acknowledgments of receipts of the letters from the concerned

officials. He has further stated that on 14 th November 2006, he

sent complaints on his letter-head, to the State Human Rights

S.Q. Pathan / N.S. Chitnis 273/867

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Commission (SHRC) and CP, Mumbai; that on 14 th November

2006 there was an interview of Shri R. R. Patil and Shri A. N.

Roy on TV denying the fake encounter; and that on 15 th

November 2006 he filed a writ petition, being Writ Petition

No.2473/2006 in this Court seeking several reliefs.

75.5 According to PW1, on 16th November 2006, he

addressed a copy of the complaint to the President, National

Human Rights Commission (NHRC), New Delhi, on his letter-

head and sent the same by RPAD. According to PW1, on 16 th

November 2006 his writ petition was heard by this Court and

one of the prayer in the writ petition was, seeking second post-

mortem. He has stated that P.I Mohandas Sankhe, of Versova

Police Station had shown a copy of the post-mortem report to the

Court and the prosecutor had handed over a copy of the said

post-mortem report to him and after going through the same, he

withdrew his prayer seeking second post-mortem, orally. He has

stated that on the next day, he had gone to Versova Police Station

S.Q. Pathan / N.S. Chitnis 274/867

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for claiming the dead body; that the Versova Police Station told

him that the investigation of the case was taken over by the

Oshiwara Police Station; that he requested the police officers of

the Oshiwara Police Station to take the photographs and video of

the dead body of his brother, but they refused and hence he did

not take the custody of the dead body. He has stated that on 18 th

November 2006 he had made an application through Advocate

Ganesh Iyer (PW2) on his letter-head and sought five sets of

copies of telegram; and that the Dadar Telegraph Office had

supplied the copies, but the Matunga Telegraph Office had

refused to supply the same.

75.6 PW1 has further stated that on 20th November 2006,

the matter again came up for hearing before this Court; that on

20th November 2006 the CP of Mumbai, Shri Roy filed an

affidavit in reply to the writ petition; that on 21 st November

2006, he had sent a letter on his letter-head to the Manager,

BSNL, requesting them not to destroy the telegram forms without

S.Q. Pathan / N.S. Chitnis 275/867

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the permission of this Court or without informing him, as the

matter was subjudice before this Court; that on 22 nd November

2006 the matter again came up for hearing before this Court and

the Court gave directions to the officers of the Oshiwara Police

Station and to him to go to the J.J. Hospital, so that the dead

body could be handed over to him; that on 22 nd November 2006,

he had been to Oshiwara Police Station for claiming the dead

body; that after taking the custody of the dead body on 22 nd

November 2006, the last rites were performed on the deceased;

that on 27th November 2006, he gave an application on his letter-

head, to the Sub Divisional Engineer (G-II), BSNL, Mumbai,

requesting them to inform as to whether the five telegrams which

were sent on 11th November 2006 were received by the

concerned authorities; that on 29 th November 2006, the said

authority gave him a report, with respect to delivery of

telegrams by the concerned authorities, by mentioning the date

and time.

S.Q. Pathan / N.S. Chitnis 276/867

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75.7 According to PW1, on 26th November 2006, he

called PW38 and inquired about the whereabouts of Anil Bheda,

however, he disclosed he had no information; that he requested

him to file an affidavit before the High Court, however, PW38

refused; that he went to PW38's shop and saw the name of his

shop 'Trisha Collection' at Sector 9, Vashi, Navi Mumbai; that

thereafter he went to Anil Bheda's house alone and found that his

house was locked; that he inquired with the watchmen of the

building, who told him that he did not know anything and he

should not inquire about him, pursuant to which he returned

home; that he again visited Bheda's house on three consecutive

Sundays, but on each occasion, he found the house locked.

75.8 According to PW1, he had received the receipts for

the payment of five telegrams sent by him. The said five receipts

have been exhibited as Exh.-119 (colly). The receipt number of

Exh.-119 (colly) has been mentioned on the respective telegrams.

S.Q. Pathan / N.S. Chitnis 277/867

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75.9 PW1 has further deposed that on 11 th November

2006, a fax message was written by Ganesh Iyer (PW2) in his

handwriting. The witness was shown the fax message which was

in the handwriting of PW2. He has further deposed that he

obtained the delivery report of the fax and mentioned the name

and address of Aruna Bheda and the telephone number and fax

number of CP office in his handwriting on the backside and that

he had also mentioned the number of his sister-in-law and

number of Girish, who was a friend of Ramnarayan and number

of Dheeraj on the back side of message. The said document is

marked as Exh.-120. According to PW1, he had also sent a fax

to CP of Mumbai, Thane and Navi Mumbai on 11 th November

2006 and had received the delivery reports of the said faxes sent.

PW1 has further stated that since delivery of fax messages

vanishes automatically from the paper, after a few days, he

removed a photo copy of one of the delivery reports by keeping

the delivery report below the fax message contents. He has

identified the faxes sent to the CP Office, Thane. In view of the

S.Q. Pathan / N.S. Chitnis 278/867

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objection raised by the learned counsel for the appellants, the

photo copy of the delivery message of fax sent to CP Office,

Thane was marked as Article 1. The fax message sent to CP

Office, Navi Mumbai was marked as Article 2, alongwith the fax

delivery report.

75.10 PW1 has further stated that in the last week of

December 2006 on Sunday, he visited the house of Anil Bheda;

that on that day Anil Bheda, his wife Aruna and their son Parth

were at home and they met him; that he went there to inquire as

to what had happened on 11 th November 2006. Although, PW1

has stated the disclosure made by Anil Bheda, vis-a-vis the

incident of 11th November 2006, we may note, that since Anil

Bheda expired on 13th March 2011, the evidence with respect to

what was disclosed by Anil Bheda to him, being hearsay

evidence, is not taken into consideration. He has stated that after

speaking to Bheda, he asked him to file an affidavit in the High

Court pertaining to the incident that took place on 11 th

S.Q. Pathan / N.S. Chitnis 279/867

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November 2006, however, Bheda did not file any affidavit. PW1

has further stated that he had not disclosed the conversation with

Bheda to anybody because he knew that as soon as he disclosed

the same, Anil Bheda would be eliminated by the accused. He has

stated that when this Court directed the SIT to make

investigation, he disclosed before them, the conversation he had

with Bheda and the disclosures made to him by Bheda.

75.11 As far as inquiry being conducted by SLAO is

concerned, PW1 has stated that he participated in the said inquiry

which was being conducted under the supervision of the High

Court and that his statement was also recorded in that inquiry;

that in all, 37 statements of the witnesses were recorded,

including that of 12 police officers and Advocate Ganesh Iyer;

that after the inquiry, the SLAO filed a report in the High Court

on 27th October 2007; that the High Court was not satisfied with

the SLAO's report and hence, vide order dated 13 th February

2008, the Court directed the learned Metropolitan Magistrate's

S.Q. Pathan / N.S. Chitnis 280/867

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Court, Andheri to conduct a fresh inquiry under Section 176(1-A)

of the Cr.PC PW1 has stated that he had participated in the

inquiry conducted by the Learned Metropolitan Magistrate,

Railway Mobile Court, Andheri and that on completion of the

inquiry, the learned Metropolitan Magistrate filed her report on

11th August 2008 before this Court. He has stated that 8 police

officers filed intervention applications in the said writ petition

and several affidavits therein; that one officer Nitin Sartape (A11)

filed a separate writ petition, being Writ Petition No.181/2009,

challenging the report of the learned Metropolitan Magistrate

Court, Andheri; that on 13th August 2009, after hearing the

parties, the High Court constituted a SIT and directed the CP,

Mumbai, to register an FIR for the offence of murder of

Ramnarayan Gupta and to carry out the investigation and file a

report. He has stated that the High Court had also given

directions to give a copy of his complaint dated 14 th November

2006 to the CP, Mumbai; that pursuant thereto, he tried to

contact DCP Prasanna, Head of SIT; that since he was on leave,

S.Q. Pathan / N.S. Chitnis 281/867

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PW1 contacted him again on 20 th August 2009; that pursuant

thereto, DCP Prasanna recorded his statement; and that he also

handed over the copies of his complaint dated 14 th November

2006, copy of writ petition, copy of five telegrams, copy of

receipts of five telegrams, copy of fax delivery reports and two

other fax delivery reports which were annexed to Writ Petition

No. 2473/2006, with his forwarding letter to DCP Prasanna.

PW1 has identified his statement and the signature on the FIR.

He has stated the contents therein are true and correct. The FIR

is marked as Exh.-121, subject to the objection with respect to

the contents of the FIR to the extent it records the conversation

between him and Anil. He has further stated that on 11 th

November 2006, he had two mobile phones of his own, being

mobile Nos. XXXXXX6490 and XXXXXX0012 and from the

afternoon of 11th November 2006, he was having the mobile of

his brother-Shyamsunder; that he had done the video clipping of

the spot on his mobile No.XXXXXX6490 of Motorola Handset;

and that the video clipping of the spot is stored in the memory

S.Q. Pathan / N.S. Chitnis 282/867

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card of the said mobile. The video clipping recorded by the said

witness and the video clipping of the Sahara News on the laptop

was taken on record, subject to objection and marked as Exh.-

122. PW1 has further stated that he had prepared the CD from

the memory card of his mobile and that he had retained both the

mobile as well as the memory card which was used for recording

the video. He has stated that he did not produce the memory

card wherein the video clipping was recorded before the police,

as it was small one and there was likelihood of the same being

lost. In view of the objection by the learned counsel for the

appellants, production of the memory card at the stage of

recording of the evidence was disallowed.

75.12 As far as video clipping is concerned, the same was

produced by PW1. He has stated that on 16th December 2006, he

had obtained the CD of the video clipping of the Sahara Samay

from Isha Monitoring Services at Ghatkopar, after paying the

necessary charges. He has produced the CD before the police.

S.Q. Pathan / N.S. Chitnis 283/867

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The said CD was marked as Exh.-123.

75.13 PW1 has further stated that he had written a letter on

13th November 2006 to the Chief Minister of Maharashtra and

received acknowledgment of the hand delivery of the letter; and

that the copy of the said letter bearing the endorsement

acknowledging the receipt of the letter, was identified by him. A

copy of the said letter was marked as Exh.-124. A copy of the

letter written to Dy. CM of the Maharashtra State on 13 th

November 2006 was also produced showing the endorsement

acknowledging the receipt of the letter. The said letter was sent

by hand delivery. A copy of the said letter was marked as Exh.-

125. Similarly, a letter dated 14th November 2006 written to the

CP, Mumbai and delivered by hand was also produced showing

the endorsement acknowledging the receipt of the letter and the

same was marked as Exh.-126. Similarly, a letter dated 14 th

November 2006, written to the State Human Rights Commission,

Mumbai, delivered by hand was also produced showing the

S.Q. Pathan / N.S. Chitnis 284/867

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endorsement acknowledging the receipt of the letter and the

same was marked as Exh.-127. Similarly, a letter dated 16 th

November 2006, sent to the NHRC, New Delhi, delivered by

Registered Post and the acknowledgment receipt from the post

alongwith a xerox copy of the letter was marked as Exh.-128

colly. Similarly, a letter dated 20 th November 2006, sent to the

General Manager, Bharat Sanchar Nigam Limited (BSNL) for

preserving the original telegram forms, sent by hand delivery and

the xerox copy of the letter bearing endorsement acknowledging

the receipt of the letter was marked as Exh.-129. Similarly, a

letter dated 27th November 2006, sent to the S.D.E.G-II, BSNL

seeking delivery reports of the telegram sent by PW1 and the

xerox copy of the letter bearing the endorsement acknowledging

the receipt of the letter, was marked as Exh.-130. Similarly, the

reply dated 29th November 2006, received from S.D.E.G-II,

BSNL office, was marked as Exh.-131, subject to objection on

the premise that the contents are to be proved by the sender of

the reply. (We may note that witnesses have been examined to

S.Q. Pathan / N.S. Chitnis 285/867

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prove the said documents).

75.14 On 6th March 2007, PW1 made an application to the

Information Officer/ACP under the RTI Act, to get the

information as to when and at what time and by whom the office

of the CP, received the telegram and what action they had taken

on the telegram; that he had received a xerox copy of that

application and had obtained the acknowledgment of the receipt

of the application from CP Office, Mumbai; that the xerox copy

of the application bears his (PW1's) signature since he had typed

it. PW1 has admitted the contents therein, to be true and correct.

The same was marked as Exh.-133. PW1 has further deposed

that he had received a reply from the CP Office, Mumbai on 20 th

March 2007. The said reply was placed on record and marked as

Exh.-134, subject to objection. PW1 has further stated that on

17th August 2009 some of the accused i.e. Devidas Sakpal (A13),

Prakash Kadam (A16), Pandurang Kokam (A19) and Sandip

Sardar (A20), challenged the order dated 13th August 2009 passed

S.Q. Pathan / N.S. Chitnis 286/867

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by this Court in Writ Petition No.2473/2006, before the Apex

Court by way of an SLP and that the said SLP was dismissed on

31st August 2009 as withdrawn by the petitioners therein.

Thereafter, PW1 has stated as to when the applications were

made by him for recording the statements of witnesses under

Section 164 Cr. PC and steps taken by him. The video clipping

so produced by PW1 was seen in the presence of the accused and

their advocates and the learned Spl. PP and the visible images of

the video clip from the CD were noted and so also the

conversation was heard. The same has been recorded in paras 64

and 65 of PW1's evidence. According to PW1, he received a call

from SIT Office; that he was called on 14 th July 2010 for

recording his further statement; that on 24 th August 2008, he

received a call from the SIT Office and was called on 25 th August

2008 at Vashi Bus Depot for showing the spot from where his

brother was taken; that SIT recorded his statement on 25 th August

2009; that on 10th October 2009, he received a call from SIT

asking him to come to Nana Nani Park on 11 th October 2009.

S.Q. Pathan / N.S. Chitnis 287/867

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He has stated that all the documents, including letters, faxes,

telegrams were handed over by him to SIT.

75.15 In his cross-examination, PW1 has admitted that he

knows Dheeraj Mehta (PW38), however he had not heard of him

or known him prior to the incident of 11 th November 2006; that

on 11th November 2006, he had spoken to PW38 for the first

time on the phone when his brother (PW3) handed over his

phone to him, when he was in the shop of PW3; that he called

PW38 approximately 5 to 6 times. He has further admitted that

in connection with the abduction incident, (he spoke to PW3

first; and that he has already deposed what was informed to him

by PW3 in para No.4 of his evidence); that he did not ask PW3 as

to whether he inquired about the person who called him on

phone; that PW3 did not inform him that the police had taken

Ramnarayan by Qualis car. PW1 has admitted that he had

received only one call from Shyamsunder at 13:55 hrs with

regard to the incident.

S.Q. Pathan / N.S. Chitnis 288/867

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75.16 It is also pertinent to note that it has come in the

cross of PW1, which fact, has been admitted by PW1 that it was

true that Ramnarayan was residing with Anil Bheda prior to the

incident. Thus, it stands to reason why watch was being kept on

Ramnarayan on 10th November 2006 at Vashi on Anil Bheda's

house.

75.17 The said evidence of PW1 is corroborated by the

evidence of PW38 and PW3 with respect to abduction. PW1's

evidence reveals the prompt action and steps taken by him on

receipt of information i.e. abduction of his brother-Ramnarayan

and Anil Bheda, by sending faxes, telegrams on the very same day,

prior to Ramnarayan being shot dead.

75.18 Although, much ado is made by the learned counsel

for the appellants that PW1 by sending faxes and telegrams, tried

to fabricate/create evidence, as PW1 was well aware, that his

brother-Ramnarayan was a wanted accused, we find no

S.Q. Pathan / N.S. Chitnis 289/867

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substance/merit in the said submission. It was also urged by the

learned counsel for the appellants that PW1 sent faxes and

telegrams in Aruna Bheda's name deliberately, though she did not

want to send the same, as PW1 wanted to conceal his own

identity. It is pertinent to note, that PW1 has given his

explanation for sending the faxes and telegrams in Aruna Bheda's

name i.e. he was shy of sending in his name since he was aware

that his brother Ramnarayan had a past criminal record. PW1

voluntarily deposed that since Aruna Bheda's husband was also

abducted, the telegrams were sent mentioning the name of Aruna

Bheda and not in the name of PW1 or in the name of Ganesh Iyer

(PW2).

76 Be that as it may, the fact that faxes/telegrams were

sent, has been duly proved by the prosecution not only through

PW1, but through PW2, PW4, PW41, PW42, PW44, PW46,

PW49, PW92, PW93 and PW94 and so are the contents therein.

The faxes and telegrams were promptly sent and infact even

S.Q. Pathan / N.S. Chitnis 290/867

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received by the authorities, prior to the encounter, and as such,

the question of fabricating/creating any evidence does not arise.

PW2 - Ganesh Iyer :

77 PW2-Ganesh Iyer is an Advocate friend of PW1, who

was present throughout with PW1, after PW1 informed him

about the abduction of his brother. He has stated that on 11 th

November 2006, being a Saturday and a holiday, he had gone to

Infinity Mall, Andheri, Versova to see a movie at about 12:30 hrs;

that at about 14:00 hrs, he received a call from PW1 informing

him that his elder brother Ramnarayan and his friend Anil Bheda

were forcibly taken by 4-5 persons who looked like police, from

Sector 9, Vashi, Navi Mumbai; that PW1 told him to meet him

urgently; that he told PW1 to come to his Sion Office and that he

would join him there; that when he reached his Office, PW1

again disclosed the same to him; that PW1 called PW38 from his

mobile and spoke to Aruna Bheda and that he too spoke to Aruna

S.Q. Pathan / N.S. Chitnis 291/867

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Bheda on phone; that Aruna Bheda informed him (PW1) that her

husband Anil and Ramnarayan were kidnapped by 4 to 5 persons

in a Qualis vehicle from Sector 9, Navi Mumbai in front of a

mobile shop and that their lives were in danger and that he

should save them; that he told her to go to the nearest post office

and send telegrams to the CP, Mumbai, Thane and Navi

Mumbai; that PW40 told her that she did not know how to send

a telegram and asked him to send telegrams on her behalf; and

that he also told her to go to the nearest police station and inform

about the said incident. According to PW2, they went to Rabale

Police Station to find out whether Ramnarayan and Anil Bheda

were taken by the police of the Property Cell of Crime Branch,

Mumbai, however, they learnt that they had no idea of the same.

He has further stated that when PW40 told him to send the

telegram on her behalf, he asked her the address of her house on

phone, pursuant to which, she gave her address as Diamond

Apartment, Sector 29, Vashi, Navi Mumbai; that thereafter, he

and PW1 went to Central Matunga Telegraph Office on

S.Q. Pathan / N.S. Chitnis 292/867

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motorbike; that they reached there at about 16:00 hrs. and

collected 3 telegram forms; that he filled up the form and sent the

telegrams to Shri A.N. Roy, CP, Mumbai, to CP, Navi Mumbai

and to Mr. D. Shivanandan, CP, Thane; that the said telegrams

were sent to save the lives of Ramnarayan Gupta and Anil Bheda,

as there was possibility of them being killed in a fake encounter;

and that he had written the messages in all the 3 telegrams. The

said witness has identified the said forms. PW2 has admitted that

the said telegrams, which are at Exhibits-114, 115 and 116, are

in his handwriting and that he had given these telegrams to the

telegraph office and had paid for the telegrams for which 4

receipts were issued. He has identified the 4 receipts [Exh.-119

(colly)] out of 6, which were issued by the Matunga Telegraph

Office. PW2 has further stated that the telegrams were sent at

about 16:08 hrs; that thereafter, he went to his office alongwith

PW1, where they decided to send fax messages to the CP,

Mumbai, Thane and Navi Mumbai; that pursuant thereto, they

went to Ratnadeep Store, Jain Society, in front of SIES College,

S.Q. Pathan / N.S. Chitnis 293/867

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Sion, Mumbai; that PW1 contacted his friends and obtained the

fax numbers of the above offices of the Commissioners before

visiting the store; that after making some changes in the telegram

message, fax message was prepared and that they handed over the

message to that store, at about 16:45 hrs; that fax was sent to CP,

Thane and Navi Mumbai, however, the fax message to the CP,

Mumbai, could not be sent as they were not getting a clear tone;

that the delivery reports of the receipt of the fax messages were

received by the store owner and that they got the delivery reports

from him. He has identified the Delivery Reports, which is at

Article-1.

77.1 PW2 has further stated that thereafter, they came

back to their office; that PW1 telephoned his friend including PI-

Arun Chavan, Property Cell, Crime Branch, however, he did not

get any information; that thereafter, they decided to send

telegrams to the Chief Minister and Dy. Chief Minister of the

Maharashtra State and accordingly, went to Matunga Telegraph

S.Q. Pathan / N.S. Chitnis 294/867

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Office at about 18:00 hrs; that Matunga Telegraph Office was

closed and hence, they went to Dadar Telegraph Office and

collected 2 telegram forms, one of which was written by him and

the other by PW1; that he sent the telegram to Shri Vilasrao

Deshmukh, CM and PW1 sent the telegram to Shri R. R. Patil,

Dy. CM (Exh.-118). He has identified the forms given by the

Telegraph Office and the payment receipts (Exh.-119). He has

further stated that the said telegrams were sent at about 61830

hrs.

77.2 According to PW2, when they were in the Telegraph

Office at Dadar, PW1 received a call on his mobile; that PW1

told him about the message received i.e. API Prakash Bhandari

had taken both Anil Bheda and Ramnarayan Gupta to Belapur

Crime Branch; that pursuant thereto, they went to Belapur Police

Station; that they reached the Belapur Crime Branch

Commissioner's Office premises at about 20:00 hrs. and asked

the security guard whether two persons were brought to the

S.Q. Pathan / N.S. Chitnis 295/867

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office; that he disclosed to them that nobody was brought to the

office on that day and that they could check and ascertain

whether anybody was brought; that he and PW1 went inside and

checked, however, nobody was found there. PW2 has further

stated that when they were at Belapur Railway Station and having

tea at about 20:30 hrs., PW1 received a call from his brother

(PW3), who informed him, that he learnt from the TV news, that

Ramnarayan was killed in a police encounter. PW2 on hearing

the same, told PW1 that they should go to his office. PW2 called

his friend Advocate Desai on his mobile and informed him about

the death of Ramprasad's brother and told him that they were

going to the spot; that Advocate Desai told them that he would

also accompany them; that he told Advocate Desai to come to his

office; that he also called his driver and asked him to come to his

office; that when he and Ramprasad (PW1) reached the office at

about 21:30 to 21:45 hrs, Advocate Vijay Desai, Advocate Kudart

Shaikh and Driver Raja were already present in his office i.e. the

office of PW2; that thereafter he alongwith Ramprasad,

S.Q. Pathan / N.S. Chitnis 296/867

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Advocate Desai, Advocate Kudart Shaikh and Driver Raja left in

a car, to Versova Police Station; that they reached Versova Police

Station at about 22:15 hrs. and inquired with the station house

officer about the news of killing of Ramnarayan in a police

encounter; that the officer told them that he did not receive any

information and told them that in case they wanted to make

further inquiry, they should go to the spot and hence they

proceeded towards the spot; that they reached the Nana Nani

Park at about 10:25 hrs and got down from the said vehicle,

however, they did not find anything which would reveal that an

encounter had taken place; that they saw an electric pole near the

end of the park and found blood stains on the ground near the

pole; that on the blood stains, paper was kept and on the paper

a stone was placed; that he told PW1 to take a video clipping on

his mobile, pursuant to which he took a video clipping of the

electric pole and the place where blood and the paper was seen

near the electric pole. He has stated that there was a building by

the name of Magnum Opus; that when they reached the Nana

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Nani Park and inquired with the people, they learnt that no such

encounter had taken place. Although, one person i.e. watchman

of Magnum Opus, disclosed to them, what he had seen, the same

being hearsay, is not considered, inasmuch as, the said

watchman's statement was also not recorded. PW2 has identified

the telegram which was sent by him to Shri Vilasrao Deshmukh,

CM of Maharashtra, which was in his handwriting Exh.-117. He

has accepted the contents therein, as true and correct. After

seeing the video clipping, PW2 has stated that the said video

clipping was taken by Ramprasad Gupta on 11 th November 2006

at 22:44 hrs.

77.3 PW2 has further stated that he prepared the draft of

the fax. He has identified his handwriting and as such the

document is marked as Exh.-120. He has further stated that on

18th November 2006, he had written a letter to the head of the

Post Office, Matunga Central Telegraph Office to preserve the

telegrams, which were sent on 11 th November 2006; that he

S.Q. Pathan / N.S. Chitnis 298/867

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received acknowledgment of the receipt on the copy of the letter.

The same has been marked as Exh.-150.

77.4 In his cross-examination, PW2 had confirmed that he

had learnt from PW1, that Ramnarayan and Anil Bheda were

forcibly taken away in a silver coloured Qualis by 4 to 5 persons

who were looking like police. He has stated that he had learnt

that the abduction had taken place in front of a mobile shop,

Sector 9, Vashi, Navi Mumbai. PW2 has admitted that he had not

mentioned about the mobile shop in the telegrams, and that he

had learnt from Ramprasad (PW1) that the person who informed,

was not a witness to the incident. He has further stated that he

himself had not seen the place of incident before sending out the

telegrams. He stated that he had received a call from PW1 at

about 2.00 pm. It is pertinent to note that it has been brought in

the cross-examination of PW2 that he reached the spot at 10:40

p.m. i.e. at Nana Nani Park.

S.Q. Pathan / N.S. Chitnis 299/867

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77.5 He has further stated that he had not inquired with

PW1 as to why he was not forwarding the telegrams in his own

name, as he did not feel it was necessary to do so.

78 Not only PW1 and PW2 corroborate each other in all

material particulars, but even the fax and telegrams sent by PW1

and PW2 have been duly corroborated by the witnesses, who

were examined from the respective post offices. One of the fax

message sent to the CP, Navi Mumbai, at Exh.-120 reads thus:

"THIS IS TO BRING TO YOUR KIND NOTICE THAT MY HUSBAND ANIL BHEDA AND HIS FRIEND RAMNARAYAN VISHWANATH GUPTA HAS BEEN PICKED UP BY PLAIN CLOTHES POLICEMAN FROM SECTOR 9, VASHI, NAVI MUMBAI. THAT THE SAID POLICEMAN WERE IN A SILVER COLOUR QUALIS CAR.

I SUSPECT THAT THEY WILL KILL THEM IN A FAKE ENCOUNTER.

PLEASE SAVE THEIR LIFE."

FROM ARUNA ANIL BHEDA SECTOR 29, VASHI, DIAMOND APARTMENT

S.Q. Pathan / N.S. Chitnis 300/867

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NAVI MUMBAI."

79 The telegrams/faxes sent by PW1 and PW2 were duly

received by the concerned authorities i.e. CP, Thane, Navi

Mumbai and Mumbai on 11th November 2006 at about 18:00

hrs. are at Exhibits 114, 115 and 116 respectively. The contents

of all telegrams are identical. One such telegram at Exh.-115

reads thus :

"RAMNARAYAN VISHWANATH GUPTA AND ANIL BHEDA PICKED BY POLICE IN SILVER COLOUR QUALIS FROM SECTOR 9, VASHI. THEIR LIFE IS IN DANGER. PLEASE HELP AND SAVE THEIR LIFE.

(ARUNA ANIL BHEDA)"

PW40 - Aruna Bheda

80 PW40-Aruna Bheda, is the wife of Anil Bheda. She

has stated that in 2006, she was residing at C-45, Room No.1,

Sector 29, Diamond CHS, Vashi on rental basis with her husband-

Anil Bheda and son-Parth and that Parth was studying in St.

Mary's School; that her husband was earlier working as a trading

S.Q. Pathan / N.S. Chitnis 301/867

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agent in APMC, however, as he had suffered losses in the said

business, he started doing real estate business; that Anil Bheda

had two friends viz. Pandeyji @ Ramnarayan (deceased) and

Dheeraj Mehta (PW38); that both of them were also carrying out

the business of real estate; that Dheeraj (PW38) was also

conducting business of selling stones relating to zodiac signs; that

Pandeyji used to visit their house in relation to property dealings

and hence, she knew him personally; that stones were taken from

Dheeraj Mehta for her relations and hence, he also came to their

house for property dealings and that she knew him personally.

80.1 PW40 has further stated that on 11th November 2006,

there was an open day in her son's school and hence she had been

to her son's school at about 9:30 hrs; that she returned at about

10:45 hrs; that she met her husband and Pandeyji at the building

gate while returning home; that they informed that they were

going to Maruti Temple and hence, Pandeyji and her husband

alongwith their son-Parth left in an auto rickshaw; that they

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returned at 11:30 hrs; that they had breakfast and tea at her

house; that her husband and Pandeyji left the house at about

12:15 hrs; stating that they were going to refill the mobile and

that they were going to Dheeraj Mehta's shop for property deals;

that her husband had at that time, a mobile of Reliance Company

having number XXXXXX3863); that at about 2.30 hrs, PW38

hurriedly came to her house and told her that 4 to 5 persons had

taken Anil and Pandeyji in a Qualis vehicle and that they were

taken from outside the shop, and that the same was told to him

by the shop owners adjacent to the road and adjacent to his shop;

that PW38 also disclosed that he received a call from one Girish

Nepali (PW57) and that he informed the incident to him; that he

also received a call from Pandeyji's brother by name Gupta; that

he informed Guptaji about the incident; that Guptaji had told him

to immediately lodge a police complaint; that PW38 told her that

he had informed Guptaji that he would decide future course of

action after meeting her (PW40); that when PW38 came to her

house, he received a call from Gupta (PW1); that PW38 handed

S.Q. Pathan / N.S. Chitnis 303/867

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over his phone to her, pursuant to which she spoke to PW1; that

PW1 informed her that alongwith his brother, her husband, Anil's

life was also in danger and asked her to fax higher officials; that

PW1 further disclosed that he was apprehending that they would

be killed in a false encounter and hence, gave her the names and

addresses of officers, to whom she should fax; that as she did not

know how to send a fax, she refused; that she told him that she

would discuss and then decide further course of action; that she

told PW38 as they did not know how to fax, they should not send

a fax, and also that they did not want to get involved in any false

hassles.

80.2 PW40 has further deposed that she decided to wait

till 5:00 pm and then decide further course of action; that PW38

left her house and returned again at 5:00 hrs, and asked her if she

had received any information about Anil; that as she did not

receive any information, they decided to go to the police station

and lodge a missing complaint regarding Anil; that at about 6:00

S.Q. Pathan / N.S. Chitnis 304/867

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to 6:30 pm, Dheeraj left her behind Vashi depot on his

motorcycle and she went alone to the Vashi police station and

met the constable in the police station and lodged a missing

complaint of her husband-Anil Jethalal Bheda; and that her

statement was recorded by the said police constable being Missing

Complaint No. 51/06 (Exh.-306). She has accepted the

correctness of the said complaint. She has further stated that on

her return home, her son-Parth informed her that the police from

Vashi Police Station had come to the house and had asked for a

photograph of her husband, pursuant to which, she took the

photograph of her husband and went to Vashi Police Station at

about 21.30 hrs. and gave the photo to the same constable who

had recorded her complaint (Exh.-306).

80.3 PW40 has further stated that on the next day i.e 12 th

November 2006, in the morning, she read in the Gujarati

Newspaper that Pandeyji had been killed in a police encounter;

that she called Dheeraj Mehta (PW38) from the PCO and

S.Q. Pathan / N.S. Chitnis 305/867

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informed him about the news she read; that PW38 came to her

house and asked her to go to the police station and make inquiry

about the missing complaint lodged by her; that she went to Vashi

Police Station at about 11:30 hrs and made inquiry; that she met

a senior officer of the police station D.B. Patil and gave

information about the missing complaint; that D.B. Patil told her

that in case her husband returns home, she should withdraw the

complaint and as such she returned home; that at about 2:30 hrs,

she called her brother-in-law Dhiraj Bheda and informed him

about the missing complaint lodged by her and asked him to help

her, since she was alone; that about 17:00 hrs. she went back to

the Vashi Police Station alongwith her brother-in-law and his

wife; that she went alone inside the police station; that whilst she

was waiting, her husband Anil Bheda came to the police station;

that she asked him where he had gone, to which he replied that

he had gone to Shirdi; that at that time Senior Officer D. B. Patil

came there and took them to his cabin and made inquiries with

her and her husband Anil and recorded their statements; that D.

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B. Patil showed them one fax and inquired whether she had

forwarded the said fax, to which she replied that she cannot read

and write in English and as such had not sent the said fax; that

she was asked to meet the police constable and was asked to

withdraw the missing complaint and that accordingly she

withdrew the missing complaint by affixing her signature (Exh.-

307). PW40 has deposed that on 12 th November 2006, when

they came out of the Vashi Police Station, her husband-Anil

informed her that Pradeep Sharma's men had taken him and his

friend Pandeyji in a Qualis vehicle from Vashi, Sector 9; that they

were taken to D.N. Nagar Police Station, Andheri and produced

before Sharma and on that night, Pandeyji was killed in an

encounter; that her husband stated that Police Officer by name

A.T. Patil (PW104) mediated on his behalf and hence, he was

released. The said recording of evidence i.e. disclosure made by

Anil Bheda to PW40 was objected to by the learned counsel for

the appellant (OA1), however, the said evidence was recorded by

the trial Court, subject to objection.

S.Q. Pathan / N.S. Chitnis 307/867

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80.4 According to PW40, when they stepped out of Vashi

Police Station, one Qualis vehicle was standing at a distance and

that her husband had told her that they had to go in the said

vehicle; that in the said vehicle, there were two police officers in

plain clothes by the name Desai (A2) and Rattu (A3).

80.5 As far as the other evidence of PW40 is concerned, it

pertains to confinement of her husband-Anil Bheda and as such

will be dealt with, when we discuss the said circumstance.

80.6 PW40 was cross-examined at length by the learned

counsel for the appellants with respect to the incident of 11 th

November 2006 and 12th November 2006; with respect to what

happened on 11th November 2006, pursuant to the disclosure

made to her by PW38.

80.7 In her cross-examination, PW40 has admitted that

Pandeyji had breakfast at her house for the first time on 11 th

S.Q. Pathan / N.S. Chitnis 308/867

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November 2006, pursuant to which, both Pandeyji and Anil

Bheda left to refill Bheda's mobile bearing number

XXXXXX3863; that Anil Bheda had informed her that they

were going to the shop of one Dhiraj; that she did not receive any

message from Anil after 12:15 hrs. PW40 has further admitted

that she knew one Girish Nepali (PW57) as he had come

alongwith Pandeyji regarding a property deal. She further

admitted that "we did not want ....... hassles", appearing on page

no. 40/3 of her examination-in-chief, wherein "we" refers to her,

PW38 and Anil.

80.8 PW40 has admitted in her cross, that on 11 th

November 2006, Dheeraj (PW38) had left her house about 15:00

-15:15 hrs. and before he left, they had decided to wait till 5.00

hrs; that subsequently, she had gone to Vashi Police Station alone

and lodged a missing complaint; that she did not inform the

police officer that Guptaji (PW1) and Ganesh Iyer (PW2) had

expressed fear that her husband would be killed; and that when

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her husband went missing, one person by name Pandeyji was with

him; or that her husband had gone missing from Sector 9 of

Vashi.

80.9 PW40 has further admitted, in her cross-examination,

that after reading the newspaper article that the police had fired

at Pandeyji in defence, she did not contact the concerned police

station and inquire about Anil, as she was scared; that she did not

approach Versova Police Station to confirm about the incident as

informed to her by Dhiraj; that she visited Vashi Police station on

12th November 2006 and inquired with regard to the said article

as well as her husband's whereabouts. PW40 has stated that she

saw her husband-Anil Bheda on 12 th November 2006, after the

incident of 11th November 2006. She has stated that Anil's life

was in danger and that Anil whispered to her, when the fax was

shown by D.B. Patil, that his life was saved because of the said

fax. PW40 has admitted that Anil, however, did not disclose to

D.B. Patil about the same.

S.Q. Pathan / N.S. Chitnis 310/867

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80.10 PW40 has corroborated the sequence of events, as

disclosed by PW38, PW57, PW1, PW2 and PW3 vis-a-vis

abduction of Ramanarayan and Anil Bheda. Just because PW40

did not lodge a complaint of abduction of her husband and

instead lodged a missing compliant, would not render the

prosecution case or even the evidence of PW40, doubtful. The

reasons for not sending the faxes, was apparent, as disclosed by

PW40, that they did not want hassles. The conduct of PW40

appears to be natural, inasmuch as, PW40 had learnt that

Ramnarayan and Anil Bheda were picked up by the police and

what was disclosed by PW1 to her, that Ramnarayan and Anil

Bheda's lives were in danger. PW40's evidence inspires

confidence and nothing material is brought in her cross-

examination to disbelieve her testimony or to discredit her

evidence.

PW6-Mahesh Manohar Mule

S.Q. Pathan / N.S. Chitnis 311/867

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81 PW6 was an advocate since 1998, practicing in the

Sessions Court at Mumbai and knew Ramprasad Gupta (PW1).

He has stated in his examination-in-chief, that PW1 called him

at about 4 to 4:30 hrs on 11 th November 2006, to inquire about

the fax numbers of the CP, Mumbai and other top ranking Police

Officials of Mumbai; and that he only had the number of one

official in his diary and that he gave the same to PW1.

82 Although, the witness was declared hostile by learned

Spl. P.P as he did not depose in his examination-in-chief with

regard to disclosure made by PW1 to him, PW6 in his further

examination by the learned Spl. P.P, admitted that PW1 had

stated to him that his brother Lakhanbhaiya (Ramnarayan) and

his friend have been taken by the police from Vashi; and that

PW1 feared something untoward would happen to his brother.

83 Nothing substantial has been elicited in the cross-

examination of this witness conducted by the accused. Infact, the

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suggestion i.e. PW1 had informed him that he had to create an

alibi and hence, he asked him the phone numbers, has been

denied by this witness.

PW8-Amit Ashok Jambotkar :

84 PW8, is an advocate, practicing since 2000 in the

Sessions Court at Mumbai. He has stated that he received a call

from PW1 between 16:00 to 16:30 hrs. on 11 th November 2006

and was asked to make inquiries at the Crime Branch Office at

Thane, about his brother Ramnarayan who had been picked from

Vashi; that he went to the Crime Branch Office at Thane, but

could not make any inquiry; that PW1 called him again at about

6:00 to 6:30, and asked him if he had received any information,

to which he replied that since it was a Saturday, the office was not

working and he could not find anybody there. PW8 has stated

that PW1 had not disclosed anything further and that he learnt

about the death of Ramnarayan Gupta in an encounter when he

S.Q. Pathan / N.S. Chitnis 313/867

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saw the news on television at about 20:00 hrs. to 20:30 hrs.

84.1 In his cross-examination, it was confirmed by PW8

that he spoke to PW1 twice on 11th November 2006, however,

apart from that, nothing material has been elicited.

85 The evidence of the witnesses with respect to

abduction of Ramnarayan and Anil Bheda stands corroborated

interse with all the witnesses as stated aforesaid. The said

evidence is also supported by documentary evidence i.e. faxes and

telegrams sent to the authorities by PW1 and PW2 and the

evidence of other witnesses vis-a-vis sending of faxes and

telegrams.

86 The evidence on record shows that telegrams and

faxes were sent by PW1 and PW2 on 11 th November 2006

between the period 16:00 hrs and 18:30 hrs. The prosecution

has examined the following witnesses to prove the sending of

faxes and telegrams; PW4-Shaligram Wankhade, Sub-Divisional

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Engineer in Central Telegraph Office, PW5- Rachana Vanjare,

who was working as a Clerk in B.S.N.L, PW41-Wasudeo Channe,

who was working as Customer Service Centre, BSNL, Prabhadevi

Exchange, Mumbai, PW42 - Bhavka Bhangare, who was

working as Assistant at Matunga Telegraph Office, PW44-Arjun

Satam, who was working as Telegraph Assistant at Dadar

Telegraph Office; PW47-Santosh Naik, working as Writer in the

Main Control Room and PW49-Ravindra Kulkarni, working as

PA in the office of CP, Mumbai.

PW4 - Shaligram Kashiram Wankhade:

87 PW4 was working in the Central Telegraph Office,

Mumbai at the relevant time. The original telegram forms dated

11th November 2006 were handed by him to the police on 29 th

March 2010. He has stated that the police verified from him

that the said telegrams were sent from Dadar and Matunga Post

Office and accordingly recorded his statement. PW4 has

S.Q. Pathan / N.S. Chitnis 315/867

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identified the original telegram forms i.e. Exhibits- 114 to 118.

He has stated that Exhibits-114, 115 and 116 were sent from

Matunga Telegraph Office, Mumbai and Exhibits-117 and 118

were sent from Dadar Telegraph Office, Mumbai, and that the

said telegrams were sent on 11th November 2006. He has stated

that Exh.-114 was sent to Shri D. Shivanandan, CP, Thane at

16:08 hrs, Exh.-115 was sent to the CP, Navi Mumbai, Belapur at

16:08 hrs., Exh.-116 was sent to Shri A.N. Roy, CP, Mumbai on

16:08 hrs.; Exh.-117 was sent to Shri Vilasrao Deshmukh, Chief

Minister, Varsha Bungalow, Mumbai, at 18:28 hrs. and Exh.-118

was sent to Shri R.R. Patil, Deputy C.M. Chitrakut Bungalow,

Malabar Hill, Mumbai at 18:28 hrs. He has also deposed with

respect to whom the said telegrams were sent i.e. the authorities.

He has also identified the receipts Exh.-119 (colly) issued by the

office and that the said receipts were charges for sending

telegrams, issued in due course of business. He has stated that

although initially the police obtained certified copies of telegrams,

subsequently, the original was handed over to the police. The

S.Q. Pathan / N.S. Chitnis 316/867

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correspondence exchanged between him and the police

authorities was marked as Exhibits-159 and 160. Nothing

material has come in the cross-examination of the said witness to

discard his testimony with respect to sending of telegrams by

PW1 and PW2.

PW41 - Wasudeo Chindhuji Channe:

88 PW41 was working in the Customer Service Centre,

BSNL, Prabhadevi Exchange, Mumbai, as In-charge Chief

Telegraph Master. He has stated that on 26 th August 2011, Shri

Ghorpade (PW108) of SIT came to his office and gave him a

letter requesting him to give information regarding the telegrams

sent from Matunga and Dadar Offices. He has stated that the said

letter was received by him (Exh.-324 colly) and that along with

the said letter, photocopies of the telegraph receipts were also

forwarded. The said witness produced the original Telegraph

Master Diary in the Court wherein the name of the staff working

S.Q. Pathan / N.S. Chitnis 317/867

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in the said Telegraph Office at the relevant time with respect to

the telegraph receipts dated 11th November 2006 is mentioned.

He has stated that as per the photocopies of the receipts given to

him, the telegrams were sent from Dadar Telegraph Office on

11th November 2006 at about 18:28 hrs by Shri A. G. Satam, who

was working at the Dadar Telegraph Office at the relevant time;

that the said two telegrams of Dadar Telegraph Office were

booked during the working hours of Shri Satam (PW44) and that

the entries in the register were in the handwriting of V. S. Gupta

and as such, he being acquainted with his handwriting, he has

identified the handwriting thereon. A copy of the entry was kept

with the original and marked as Exh.-325A. He has stated that

the said Master Diary Register was maintained in the regular

course of business.

88.1 As far as photocopies of receipts are concerned, he

has stated that three telegrams were sent from Matunga Telegraph

Office on 11th November 2006 at 16:08 hrs; that on perusal of

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the Telegraph Master Diary of that day, Shri Bhangare (PW42)

was working at the Matunga Telegraph Office from 11:00 hrs to

19:00 hrs; that the three telegrams of Matunga Telegraph Office

were booked during the working hours of said Shri Bhangare

(PW42); that the entries in the register are in the handwriting of

P.L. Meshram and that being acquainted with Meshram's

handwriting, he has identified the entries made in the said

register. The said register is marked as Exh.-326A.

88.2 The said witness was cross-examined only by the

learned counsel for the OA1. Nothing has come in the cross-

examination of the said witness to disbelieve his testimony with

respect to production of documents and sending of telegrams.

PW42-Bhavka Maruti Bhangare:

89 PW42-Bhavka Bhangare, was working at the

Matunga Telegraph Office as Telegraph Assistant in 2006. It was

his duty to accept telegrams at the counter, book it and issue

S.Q. Pathan / N.S. Chitnis 319/867

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receipts of charges. The said witness has deposed with respect to

having booked the said telegrams i.e Exh.-114. He has also

deposed with respect to receipts issued by him i.e. 119 (colly). He

has stated that the time, date and serial number of 119/1 tally

with the endorsement on the telegraph form i.e. Exh.-114. He

has stated that the endorsement on Exh.-114 was made whilst

issuing certified copies. PW42 has stated that there is an

endorsement of Farooq Mujawar, who was working with him and

that he knew his handwriting and signature and as such has

identified the same. The said witness also deposed with respect to

other Exhibits i.e. Exhibits-115, 119/2, 116, 119/3 and 119/4.

The said witness has deposed with respect to how telegrams are

sent, how notings are made and how receipts are issued including

electronic endorsement made on the said exhibits.

89.1 The said witness was cross-examined by advocate

appearing for OA1 and A9. Although, the said witness was cross-

examined at some length, the credibility of the said witness has

S.Q. Pathan / N.S. Chitnis 320/867

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not been demolished by the said cross. He has denied the

suggestion that Exhibits-114, 115 and 116 are bogus documents.

He has denied the suggestion that he had prepared bogus

document i.e. Exhibits-114, 115, 116 and 119 (colly) in

collusion with the complainant (PW1) and that he was deposing

falsely due to pressure of SIT.

PW44 - Arjun Gangaram Satam:

90 PW44 - Arjun Gangaram Satam was working at the

Dadar Telegraph Office as Telegraph Assistant. At the relevant

time, his duty included booking of telegrams, attending booking

counter, receiving telegrams from the customers, etc. He has

stated that when shown the photocopies of two telegrams sent on

11th November 2006 and on seeing the writing on the said

telegram forms, he has identified his writing thereon, and has

accordingly disclosed to the officer of the SIT, that he had booked

the said telegrams i.e. Exh.-117. He has stated that the said

S.Q. Pathan / N.S. Chitnis 321/867

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telegram is in his handwriting and he has identified the same. He

has stated that he had received the said telegram forms and

accordingly had booked the said telegrams. He has given the

details of the words appearing in the telegrams as to what they

represent. He has stated that the said telegram was sent to the

Chief Minister Shri Vilasrao Deshmukh and since the said address

fell within the jurisdiction of Girgaon Telegraph Office, he

forwarded it to Girgaon Telegraph Office. The said witness has

stated with respect to who had booked the said telegram and has

identified the handwriting on the said telegram form.

91 Although the said witness was cross-examined, there

is nothing to disbelieve his evidence, inasmuch as, he is a witness

who had no axe to grind against the appellants-accused. He has

given his evidence and has stated the duties performed by him in

the official course and has identified the telegram sent by him.

92 It is thus evident from the evidence of the aforesaid

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four witnesses, that the telegrams were sent as deposed to by PW1

and PW2, to the authorities as stated aforesaid. There is no

reason to disbelieve the testimonies of the said witnesses who are

all public servants nor can it be said as suggested, that they were

falsely deposing of having sent the telegrams, at the behest of

PW1 and PW2.

93 In addition to the aforesaid witnesses from postal

authorities, the prosecution also examined witnesses from the

Commissioner's Office, i.e. Mumbai, to prove receipt of telegram

at the said office.

PW47-Santosh Khimji Naik :

94 The prosecution examined PW47, who was working

as a Writer in the Main Control Room, Mumbai, at the relevant

time with respect to receipt of telegrams sent on 11 th November

2006. PW47 in his evidence has stated that he was working as a

S.Q. Pathan / N.S. Chitnis 323/867

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Writer in the Main Control Room, Mumbai, at the relevant time;

that the duty of a Writer of the Main Control Room was to

receive correspondence after office hours on working days; that

in November 2006, he was the Writer in the said department

alongwith two constables; that after correspondence is received,

entry with respect to the same is made in the 'Charge Book'; that

when the correspondence is delivered to the concerned officer,

the acknowledgment is also taken against the same in the Charge

Book. PW47 when shown the telegram dated 11 th November

2006 (Exh.-116), has stated that he received the said telegram

bearing No. "11 127"; that he made an entry about the receipt of

the said telegram in the Charge Book; that the telegram was

addressed to A. N. Roy, CP, Mumbai; that he personally made an

entry in the Charge Book i.e. page No. 4 bearing No. 509; that

the said entry is in his handwriting and that the contents are true

and correct. The said entry was marked as Exh.-355, subject to

objection; that the said telegram was handed over to the

concerned department on the next working day i.e. 13 th

S.Q. Pathan / N.S. Chitnis 324/867

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November 2006 (12th November 2006 being a Sunday); that the

telegram had come in a sealed envelope with an address window

through which, it could be seen, that it was addressed to A. N.

Roy, and number "11 127" could be seen.

95 The said witness was cross-examined only by learned

counsel for OA1. The said witness, in his cross, has admitted that

the Charge Book was not in a printed form; that it was not

maintained as per the Bombay Police Manual. The said witness

has further admitted that despite the general practice of putting

an inward stamp on any correspondence received, the said

telegram did not bear any seal, signature or rubber stamp of the

department. We, having regard to the evidence on record, find

no reason to disbelieve PW47's testimony which clearly shows

that the telegram was received by the Office of the CP on 11 th

November 2006. The entry register produced by the said witness

with respect to having received a telegram, marked as Exh.-355,

shows receipt of the said telegram addressed to the CP, Mumbai

S.Q. Pathan / N.S. Chitnis 325/867

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on 11th November 2006. The telegram addressed to A. N. Roy,

CP, Mumbai, was marked as Exh.-356. In the said telegram, it is

stated that "RAMNARAYAN VISHWANATH GUPTA AND ANIL

BHEDA PICKED UP BY POLICE FROM VASHI SECTOR 9 THEIR

LIFE IS IN DANGER PLEASE HELP AND SAVE THEIR LIFE -

ARUNA ANIL BHEDA."

PW49- Ravindra Vasudev Kulkarni:

96 PW49 was working as a PA in the Office of the CP,

Mumbai, at the relevant time. He has stated that a telegram was

addressed to A.N. Roy, CP i.e. Exh.-356. He has identified his

initial and the date appearing on the same. The said portion is

marked as 'B' on Exh.-356. He has put his initial of having

received the said telegram on 13th November 2006 and the stamp

of inward office put by constable Yemgekar. He has stated that

the entry of the said telegram has been taken in the inward

register. The said witness has produced the original register and

entry bearing No.32868 dated 13th November 2006 pertaining to

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the said telegram (Exh.-356). He has stated that as the telegram

indicated danger to life, it was immediately forwarded to the

Addl. C.P. The relevant entry was marked as Exh.-366 and the

copy of the said entry, after verifying with the original, was

marked as Exh.-366A. He has stated that the original telegram

was immediately sent to the Addl. CP, Crime; that the original

and one photocopy of the telegram was taken and placed before

the CP, since the letter was addressed to him.

97 The said witness i.e. PW49 has duly corroborated the

evidence of PW47 with respect to the Office of the CP, Mumbai

receiving a telegram on 11th November 2006.

98 As far as faxes are concerned, the prosecution has

examined PW92-Dinkar Thakur, PW93-Sadashiv Barak, PW94-

Sunil Somawanshi and PW46-Lakkaraju Narsimha.

PW92-Dinkar Shrikisanrao Thakur :

S.Q. Pathan / N.S. Chitnis 327/867

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99 PW92 tendered his affidavit dated 17 th August 2012,

which was marked as Exh.-694 (colly). Although exhibiting of

the said affidavit was objected to, the said objection was

overruled and the document i.e affidavit was marked as Exh.-694

(colly). The said affidavit tendered by this witness i.e. PW92, is

with respect to his signature and also with respect to the contents

of the document. The said witness in his affidavit has stated that

on 1st March 2012, the Spl. P.P had issued a notice and called

upon the office of the ACP, Control Room, Navi Mumbai, to

produce the original fax message book containing entries of 11 th

November 2006 before the Court on 1 st March 2012. He has

stated in his affidavit that although all records of the Control

Room were searched thoroughly and he had personally inquired

with the concerned police personnel regarding the fax message

book, however, the said fax message book could not be traced;

that the said fax message book appears to have been misplaced in

the shifting of the Control Room in the first week of December

2011, to the ground floor of the same building, and hence, he

S.Q. Pathan / N.S. Chitnis 328/867

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was not in a position to produce the original fax message book.

He has reiterated whatever is stated in his affidavit, in his

evidence. He was cross-examined with respect to misplaced fax

message book, however, the said witness has denied seeing any

entry anywhere as regards the misplaced fax message book.

PW93 - Sadashiv Vithoba Borale :

100 As far as PW93-Sadashiv Borale is concerned, he has

stated that he was attached to CBD Control Room, to the office

of the CP, Navi Mumbai, at the relevant time. He has stated that

on 11th November 2006, he was on duty in the said Control

Room, Mumbai. He has deposed that he would receive calls and

make entries of the faxes received in the Control Room. He has

stated that an entry was made in the Register with respect to fax

only, and after taking entry in the Register, it was sent to the

officer in whose jurisdiction the incident had taken place. PW93

was shown the xerox copy furnished by the P.I. Control Room,

S.Q. Pathan / N.S. Chitnis 329/867

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Navi Mumbai i.e. entry bearing No.1770 in his handwriting. He

has stated that the said fax message was sent by Aruna Bheda

from Sector No.29, Vashi, stating that 'v:.k HksMk o R;kps fe=

;kauk lk/ks os'kkrhy iksfylkauh mpywu usysckcr '. (Regarding Anil Bheda and his friend being picked up by police in civil dress) .

He has stated that the Control Room received this fax on 11 th

November 2006 at 16:45 hrs; that he sent the said fax through a

constable from the APMC Police Station to Vashi Police Station;

that the fax was in Marathi and the contents in the entry are true

and correct. The entry dated 11th November 2006 was marked as

Exh.-696. He has stated that he inadvertently in a hurry wrote

'Arun' instead of 'Anil'.

100.1 PW93, in his cross-examination has admitted that the

fax entry is taken only in the Fax Message Book; that a Station

Diary is maintained in the Control Room; that he had no

occasion to see the said fax again at anytime after making the

entry in the fax message book and after sending it to Vashi Police

S.Q. Pathan / N.S. Chitnis 330/867

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Station and that no one made any inquiry in respect of the

misplaced/lost fax message book. PW93 has further deposed in

his cross, that the entry of fax message is not made in the Station

Diary and was made in the fax message book and that there is

nothing in Exh.-696 to show that its a page of the fax message

book and that there is no mention in the said entry that a fax was

received. He has further stated that except the entry dated 11 th

November 2006, there was no other proof to show that the

Control Room had received the fax and on its basis the entry was

made. At serial No.1770 of Exh.-696, there is an entry as stated

aforesaid. The said entry read thus :

1770 v:.kk v:.k HksMk o R;kps 11-11-2006 vfuy fe= ;kauk lk/;k os'kkrhy 16-45 HksMk] iksfylkauh mpywu usys ckcr- jk- ok'kh

English translation of the above entry, reads thus :

1770 Aruna Anil Arun Bheda and his friend 11.11.2006 Bheda were picked by plain 14.45 R/o. Vashi clothes police men.

S.Q. Pathan / N.S. Chitnis 331/867

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The entry appears to have been made in the usual course of

business and in course of the official duty, and as such, there is no

reason to disbelieve the evidence of PW93 of having received the

fax on 11th November 2006, as stated aforesaid.

PW94-Sunil Sampatrao Somawanshi:

101 PW94 has stated that he was attached to the Control

Room, Navi Mumbai at the relevant time. He has stated that on

12th November 2006, he was on day duty in the Control Room,

Navi Mumbai. The said witness was shown entry dated 12 th

November 2006 at Page No.63. The said witness has stated that

there are two pages of page No.63. On being shown the second

page of page No.63, he has identified his handwriting on the said

page from the Station Diary i.e. entries from serial Nos. 17 to 22

as well as the entries at serial Nos.20 and 21. PW94 has stated

that entry at 11:45 hrs is as regards to a phone call made by PI-

Sonawane from Thane City Police Control Room informing him

S.Q. Pathan / N.S. Chitnis 332/867

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that one Aruna Anil Bheda had sent a fax message to Thane City

Police Control Room stating that her husband Anil Bheda and

another person Ramnarayan Gupta were taken in a silver colour

Qualis vehicle by police and that there lives were in danger. The

incident is stated to have taken place in Sector 9, Vashi, Navi

Mumbai. He has stated that he was informed of the same, as

Vashi, Sector 9, was within their jurisdiction. He has stated that

he informed the same to C.R.O, PSI-Bhagat and that PSI-Bhagat

informed him to make an entry in the diary. PW94 has stated

that he made an entry and accordingly, informed the Vashi Police

Station. He has identified the entry at serial No.20 bearing his

initials at the end of the entry. He has stated that he informed

the Vashi Police Station accordingly after taking the said entry.

He has further stated that PI-Patil from Vashi Police Station called

the Control Room and informed that Aruna Anil Bheda had

lodged a report in Vashi Police Station on 11 th November 2006 at

6:00 hrs, that her husband Anil Bheda left home at 10:00 hrs

stating that, he was going outside for refilling his mobile and did

S.Q. Pathan / N.S. Chitnis 333/867

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not return home. He has stated that a missing report was

registered at Vashi Police Station on the basis of the said

complaint and as per the said information, he made an entry in

the Station Diary. The entry of the message on phone by Mr.

Patil was reduced into writing by PW94 at 13:15 hrs. at serial

No.21. PW94 has identified the entries at serial Nos.20 and 21

as true and correct and the entry at serial No.20 was marked as

Exh.-702 and entry at serial No.21 was marked as Exh.-703.

Since the xerox copies were taken on record, the same were

marked as Exh.-702A and Exh.-703A respectively. The entries

at Exhibits 702 and 703 read thus :

xqUgk uksan XkqUg;k'kh lacaf/kr vlysY;k O;Drh o ogh dz- o ekyeRrk vkf.k xqUg;kph osG o tkxk dk;n;kps n'kZo.kkjk xqUg;kpk FkksMD;kr ri'khy dye ¼vko';dR ;k fBdk.kh½ 1 2 3 dzeka osG d

20 11%4 Ukksan iks-fu- lksuo.ks CRO Bk.ks flVh iksYkhl

S.Q. Pathan / N.S. Chitnis 334/867

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5 feflax daVªksy :e ;kauh dGohys dh] v:.kk vfuy ckcr HksMk ghus Bk.ks flVh iksyhl vk;qDr ;kaps ukaos QWDl ikBfor vkgs- QWDl e/;s vfuy HksMk o jke ukjk;.k fo'oukFk xqIrk ;k nks?kkauk flYOgj jaxkps Dokyhl iksyhl xkMh e/;s clowu ?ksowu xsys vkgsr R;kaps ftokyk /kksdk vkgs- vls QWDl e/;s ueqn dsys vkgs- lnj izdkj gk ok'kh ls&9 ;sFks ?kMysyk vly;kus R;k ckcr [kk=h dj.ks lkBh R;kauh uoheaqcbZ CRO yk dGohys ¼lnj gdhxr ok'kh iks-

LVs- yk CRO uoheaqcbZ ;kauh dGowu [kk=h o pkSd'kh dj.ksl lkafxrys vkgs½-

21 13- Ukksan Ikks-fu- ok'kh iks-LVs- Jh- ikVhy ;kauh dGohys 15 ekxhy uksn dh v:uk vfuy csMk ;kauh fnysys ekfgrhP;k dz- 20 vuq"kaxkus pkSd'kh dsyh vlrk lnj ckbZ fgus ckcr fn- 11-11-2006 jksth 18&40 ok- ok'kh iks-

LVs-e/;s ¼rhpk uojk vfuy csMk gk 10&30 ok- eksckbZy Qksuph fjQhy d:u ;srks vls lkaxqu ?kjkrqu fu?kqu xsyk vkgs- rks vn~;ki ijr ?kjh vkyk ukgh½- R;kckcr ok'kh iks-LVss dMs euq"; feflax jth- ua- 51@06 izek.ks nk[ky vkgs o R;kpk rikl HC/579/vkacoys ok'kh iks-LVs gs djhr vkgsr- ¼rlsp flYoj jaxkps Dokyhl iksyhl xkMh ckcr o lnj xkMhrwu usysY;k blekackcr dkgh ,d ekfgrh vxj rikl ykxr ukgh½-

English translation of the above extracts from the

S.Q. Pathan / N.S. Chitnis 335/867

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Station Diary i.e. Exh. 702 and 703, read thus :

Crime Particulars in brief about the persons and Register property involved in the offence No. and and showing the time and place of Sections (if offence.

necessary) 1 2 3 No. Time 20 11-45 Regarding P. I. Sonavane, C.R.O., Thane City

Entry of Police Control Room informed that Missing Aruna Anil Bheda has sent a Fax in the name of Commissioner of Police, Thane city and in the said Fax, it has Portion been mentioned that Anil Bheda and Marked "A" Ram Narayan Vishwanath Gupta have been taken away by making them sit in the silver coloured 'Qualis' police van and that their life is in danger. As this incident had occurred at Sector - 9, Vashi, he informed Control Room, Vashi to ascertain the said facts.

[Therefore, instructions have been given by Vashi Police Station to the C.R.O., to ascertain the said facts and to make inquiry in respect thereof.]

21 13-15 Entry in Thereupon, Shri Patil, the Police respect of Inspector, Vashi Police Station has Previous informed that on making inquiry in Entry connection with the information given No.20 by Aruna Anil Bheda, it is found that on Portion the date 11.11.2006 at 18-40 hrs, the "B""B"

"A "B"

S.Q. Pathan / N.S. Chitnis 336/867

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Marked "A" said lady had given intimation to Vashi Police station (that at 10-30 hrs, her Portion "B" husband Anil Bheda had left the home (Signature by saying that he would refill (recharge) Illegible) the mobile phone (number) and that he Police had not yet returned at home). The Inspector, entry in respect thereof has been made Control in Adults Missing Register vide entry Room, No. 51/06 and that Navi Mumbai. H.C./579/Ambavane, Vashi Police Station is carrying out investigation thereof. [Moreover, no information is received or nothing is investigated about the silver coloured 'Qualis' police vehicle and about the persons taken away by the said vehicle.]

101.1 Although the said witness was cross-examined,

there is nothing elicited in his cross-examination to discredit his

testimony with respect to the entry made by him in the Station

Diary.

DW2-Dagdu Patil :

102 Although A7 examined DW2 as a defence witness, in

S.Q. Pathan / N.S. Chitnis 337/867

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fact, the said witness supports the prosecution case.

102.1 DW2-Dagdu Patil was posted as a Police Inspector

Crime in Vashi Police Station, in the year 2006. It has come in the

evidence of DW2 that on 11th November 2006 at 21:00 hrs., he

was informed that a message was received from the Control

Room, Navi Mumbai, stating that, on the same day i.e 11 th

November 2006, Anil Bheda and Ramnarayan Gupta were taken

in a Qualis vehicle by plain clothes policemen. It was also stated

that one address alongwith name was mentioned as Aruna Bheda,

Diamond Apartment, Sector No. 29, Vashi, should be checked.

The Control Room passed the message at 17:45 hrs (Exh.974).

102.2 According to DW2, a report was made to him

after the missing report was entered into the Station Diary. DW2

has deposed that the SHO had also told him that one Aruna

Bheda had come to Vashi Police Station at 18.40 hrs and had

given her full name and address; that she had disclosed that at

S.Q. Pathan / N.S. Chitnis 338/867

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about 10.30 hrs, her husband Anil Bheda went for refilling his

mobile and did not return; that Anil Bheda had told her that

Ramnarayan Gupta was to meet him and after which, he would

return home; that as Anil Bheda did not return, Aruna Bheda

contacted her husband from a PCO, however, she could not

contact him, as the mobile of Anil Bheda was not reachable; that

she waited for Anil Bheda and then came to the police Station to

file a missing complaint; that at that time, the SHO informed

Aruna Bheda that a fax message was received from the Control

Room, Navi Mumbai; that the SHO asked Aruna Bheda as to

whether the said fax in her name was sent by her; to which Aruna

Bheda replied that she did not send the fax nor did she make any

phone call.

102.3 DW2 has further deposed that on 12th November

2006 at 18:00 hrs., Aruna Bheda alongwith Anil Bheda met him;

that initially she alongwith her husband reported to the SHO-ASI

Mr.Patil that her husband had returned, pursuant to which, she

S.Q. Pathan / N.S. Chitnis 339/867

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came to the Police Station alongwith her husband to report of his

return. DW2 further stated that ASI Mr.Patil recorded the

statement of Aruna Bheda and Anil Bheda; and that on 12 th

November 2006, they made a secret inquiry as regards the

missing complaint, however, no information could be gathered

and accordingly, an entry to that effect was made in the Station

Diary.

102.4 DW2 has further deposed that he made inquiry with

Anil Bheda and that Anil Bheda made some disclosure to him. In

view of the demise of Anil Bheda, the alleged disclosure made by

Anil Bheda to DW2, would clearly be inadmissible and hence, is

not reproduced nor considered.

103 Thus, the evidence of DW2, as has come on record,

does not in anyway impeach the credibility of PW40 or any other

witness. Infact, it supports the prosecution case with respect to

receipt of a fax message from Navi Mumbai Control Room, with

S.Q. Pathan / N.S. Chitnis 340/867

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respect to abduction of Ramnarayan and Anil Bheda. There is a

station diary entry to that effect.

104 Infact, we do not find any material in DW2's

evidence, which in any way, dislodges the prosecution case of

abduction of Ramnarayan and witness Anil Bheda on 11 th

November 2006.

PW46-Lakkaraju Narsimha Sai Rao:

105 PW46 has filed his affidavit which was taken on

record and marked as Exh.-352. In the said affidavit marked as

Exh.-352, PW46 has stated that he was working as an ACP, Main

Control Room, Mumbai, since 9th January 2012; that the Spl. P.P

had issued a notice to him on 26 th January 2012 and called upon

him to produce the original charge book containing entries of 11 th

November 2006; that all the records of the Main Control Room

were searched thoroughly, however, the charge book was not

S.Q. Pathan / N.S. Chitnis 341/867

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traced and on making further inquiries, it was found that the

charge book was destroyed on 12th March 2010 and that a station

diary to that effect was made vide S.D.E. No.19/2010 dated 12 th

March 2010. A true copy of the said station diary entry was

annexed to the affidavit. Hence, the witness was unable to

produce the original charge book. PW46, however, produced the

original station diary entry maintained in due course and placed a

xerox copy of the same on record, which was marked after

comparing with the original, as Exh.-353A. The affidavit was

not objected to and hence marked as Exh.-352. What was

objected to was the admissibility of the station diary entry

however, subject to objection, the same was taken on record.

The station diary entry is dated 12 th March 2010 with respect to

destruction of the said charge book. The said station diary entry

was made in due course of their official duty and hence, there is

no reason to disbelieve the said entry made on 12 th March 2010

and brought on record through PW46.

S.Q. Pathan / N.S. Chitnis 342/867

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105.1 It is evident from the evidence of the aforesaid

witnesses, oral and documentary, that the prosecution has proved

by legal, cogent and admissible evidence, that Ramnarayan Gupta

(deceased) and Anil Bheda were abducted on 11 th November

2006 at around 12:30 hrs from Sector 9A, Vashi in a Qualis by

plain cloth police and others i.e. 5-6 persons. It is the

prosecution case that from Vashi, Ramnarayan and Anil Bheda

were taken to Bhandup and from there to D.N. Nagar Police

Station. It is the prosecution case that a police personnel i.e. A7

and other private persons i.e. A4, A8, A10, A12 and A21,

abducted the two from Vashi and they were later joined by other

police personnel i.e. A2 and A3 and a private person i.e. A6, at

Bhandup complex. The CDRs of some of the said accused show

their presence at Vashi on 10 th and 11th November 2006, i.e. prior

to the abduction, at the time of abduction and post the abduction.

The evidence vis-a-vis CDRs will be dealt with in detail when we

deal with the circumstance of 'CDRs'.

S.Q. Pathan / N.S. Chitnis 343/867

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106 Although, learned counsel for the appellants-accused

made much ado about the faxes being sent in the name of Aruna

Bheda and not in the name of PW1 and that the said telegrams

were fabricated by PW1 to take revenge against the police, we

find no merit in the same, considering the overwhelming evidence

that has come on record, to the contrary. We may note, that PW1

and PW2 have not denied sending the telegrams/faxes in the

name of Aruna Bheda. PW1 has offered an explanation, why the

said telegrams were not sent in his name i.e. he was embarrassed

to send the telegrams/faxes in his name, he being an advocate.

No doubt, Aruna Bheda (PW40) had denied sending

telegrams/faxes, however, the fact remains, that PW1 and PW2

have admitted having sent the said faxes/telegrams albeit in

PW40's name. It is evident from PW40's evidence that she did

not know how to send fax nor did she want any hassles and that

she was scared. PW40's evidence appears natural after learning

that her husband, Anil Bheda and Ramnarayan were picked up by

police and we find no reason to disbelieve her testimony.

S.Q. Pathan / N.S. Chitnis 344/867

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107 That the said telegrams/faxes were infact sent to the

authorities on 11th November 2006, has been duly proved

through witnesses during the period from 4:00 hrs to 6:28 hrs;

that the telegrams/faxes contained information as received from

PW38, who in turn had received the said information from Nilesh

with respect to abduction of Ramnarayan Gupta and Anil Bheda

at 12:30 hrs. from Sector 9, Vashi, in a Qualis, by plain cloth

policemen; and most importantly, were sent before Ramnarayan

was killed in an alleged encounter at 8:30 hrs on 11 th November

2006 itself, ruling out any possibility of any fabrication of

evidence. The telegrams and faxes sent clearly spelt out the

apprehension that there was a possibility of Ramnarayan and Anil

Bheda being killed in a fake encounter, after they were picked up

at Vashi.

108 It is pertinent to note, that Anil Bheda, a star witness

for the prosecution, who had disclosed to the SIT, how he and

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Ramnarayan were abducted, what happened thereafter, and who

were the people involved, was found dead three days before his

testimony could be recorded. (Anil Bheda had also identified the

accused persons who had abducted him and Ramnarayan in the

TIP). Thus, in the facts, in view of Anil Bheda's death, the

disclosure made by Nilesh to PW38 and by Anil Bheda to PW40-

Aruna Bheda would have great significance and importance.

109 Mr. Chavan, learned Spl.P.P. submitted that the

disclosure made by Nilesh to PW38 would be admissible under

Section 6 of Evidence Act, inasmuch as, Section 6 carves out an

exception to hearsay evidence. Thus, according to Mr. Chavan,

the disclosure made by Nilesh to PW38 would squarely fall under

Illustration (a) to Section 6, and thus admissible in law. He

submitted that the Trial Court has also rightly accepted the

disclosure made by Nilesh to PW38, as being admissible under

Section 6 of the Evidence Act.

S.Q. Pathan / N.S. Chitnis 346/867

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110 Although, the learned counsel for the appellants

seriously contested the admissibility of what was disclosed by

Nilesh to PW38, being hearsay, we find that the said disclosure

made by Nilesh to PW38 would squarely be covered under

Section 6 of the Evidence Act i.e. under the principle of res

gestae. The learned Trial Judge has also rightly rejected the said

objection so raised by the learned counsel for the appellants that

the said disclosure made by Nilesh to PW38 would be hearsay

and as such, the trial Court has accepted the said disclosure, as

being admissible under Section 6 of the Evidence Act.

111 Considering the objection raised by the learned

counsel for the appellants with respect to Nilesh's disclosure to

PW38, being hearsay evidence and thus, inadmissible, we

propose to examine the law/rulings with respect to the same and

whether there is any merit in the said objection.

112 Relevant part of Section 6 of the Evidence Act with

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which we are concerned, reads thus:

"6. Relevancy of facts forming part of same transaction. -- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after is as to form part of the transaction, is a relevant fact.

(b) ....... .......

(c) ....... .......

(d) ....... ......."

A bare perusal of this section makes it clear that the

test to determine admissibility of a statement, under the rule of

"res gestae" is postulated in the usage of the words, "are so

connected with a fact in issue as to form a part of the same

transaction". Section 6 chisels out an exception to the general

rule, which makes hearsay evidence inadmissible.

113 The scope/principle of `res gestae' was elucidated by

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the Apex Court in Gentela Vijayavardhan Rao and Another v.

State of A.P14. Para 15 of the said judgment is reproduced herein-

under:

"15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman [(1896) 2 QB 167 : (1895-99) All ER Rep 586] a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R. [(1952) 2 All ER

14 AIR 1996 SC 2791

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447] thus:

"The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement."

The correct legal position stated above needs no further elucidation."

(emphasis supplied)

114 The Apex Court in State of Maharashtra v. Kamal

Ahmed Mohammed Vakil Ansari & Ors.15, further discussed the

words "part of the same transaction" as postulated in Section 6,

and accordingly has, in para 41, held as under:

"41. .......In our considered view, the test to determine admissibility under the rule of "res gestae" is embodied in words "are so connected with a fact in issue as to form a part of the same transaction". It is therefore, that for describing the concept of "res gestae", one would

15 (2013) 12 SCC 17

S.Q. Pathan / N.S. Chitnis 350/867

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need to examine whether the fact is such as can be described by use of words/phrases such as, "contemporaneously arising out of the occurrence", "actions having a live link to the fact", "acts perceived as a part of the occurrence", exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like. It is difficult for us to describe Illustration (a) under Section 6 of the Evidence Act, specially in conjunction with the words "are so connected with a fact in issue as to form a part of the same transaction", in a manner differently from the approach characterised above. (emphasis supplied)

115 Sarkar on Evidence (15th Edn.) has summarised the

law to ascertain the applicability of Section 6 of the Evidence Act

thus:

"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover, the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.

2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.

3. The declaration and the act may be by the same person, or they may be by different persons, e.g, the declarations of the victim, assailant and bystanders. In conspiracy and riot, the declarations of all concerned in the common object are admissible.

4. Though admissible to explain or corroborate, or to

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understand the significance of the act, declarations are not evidence of the truth of the matters stated."

116 Considering the aforesaid legal position, we now

proceed to consider the applicability of Section 6, to the facts in

question. It has come in the evidence of Dheeraj Mehta (PW38)

that at about 12:15 hrs, Anil Bheda and his friend Pandeyji had

come to his shop and were waiting outside, as there was no place

to sit inside the shop (according to the prosecution, Ramnarayan

and Anil Bheda were abducted at around 12:35 to 12.38 hrs);

that at about 12.40 hrs., one Nilesh had come to his shop and

informed him that his friend and his friend's friend were picked

up by 5-6 persons in civil dress, in a Qualis vehicle . Admittedly,

Nilesh's statement was not recorded by the police, and as such,

what is the effect of the disclosure made by Nilesh to PW38, is

the question.

117 Section 6 of the Evidence Act is squarely attracted to

the facts in the present case for the following reasons:

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(i) Ramnarayan made last two calls from his mobile at

12.31 and 12.33 hrs. from Sector 9A, Vashi, Navi Mumbai; (ii)

After 12.35 hrs. both the mobiles i.e. used by Anil Bheda as well

as Ramnarayan were switched off; and (iii) As soon as Nilesh

informed PW38 at 12.40 hrs, PW38 informed PW57 and calls

were exchanged between PW38, PW57, PW3 and PW1 followed

by faxes and telegrams to authorities, reiterating the disclosure

made by Nilesh to PW38. It is pertinent to note, that at 12.39

hrs, A7 called OA1 (all corroborated by CDRs i.e. location of A7

is at Sector 9, Vashi and OA1 at D.N.Nagar Police Station) is a

circumstance which shows A7's presence at the spot from where

Anil Bheda and Ramnarayan were abducted and that A7 was at

Vashi, outside his Commissionerate area (A7 was deputed to D.N.

Nagar Police Station, Andheri, which is a different

Commissionerate).

118 It is pertinent to note that Nilesh came to Dheeraj

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Mehta's (PW38) shop at 12:40 hrs, immediately, soon after

Ramnarayan and Anil Bheda's abduction at around 12:35 hrs -

12:38 hrs, and informed him of the abduction instantaneously,

leaving no room whatsoever for fabrication or concoction of

evidence. The disclosure made by Nilesh to PW38 was

contemporaneous and utterances spontaneous.

119 The immediacy with which Nilesh went to PW38, and

the spontaneity shown by his remark that "your friend and your

friend's friend have been picked up by 5-6 persons in a civil dress,

in a Qualis vehicle", are all circumstances so intertwined with

each other, by proximity of time and space, that the statement of

Nilesh, contemporaneously made alongwith the act of abduction,

forms "fact in issue" and thus, Nilesh's act of informing the same

to PW38, becomes a part of the same transaction and thus, the

disclosure made by Nilesh to PW38 will not be hit by hearsay

evidence and as such, is clearly admissible in law under Section 6

of the Evidence Act.

S.Q. Pathan / N.S. Chitnis 354/867

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120 The disclosure made by Nilesh to PW38 would

squarely fall within the meaning of a bystander as covered under

Illustration (a) of Section 6. In the present case, Nilesh being the

bystander to the "fact in issue" will form part of the transaction

and will squarely fall under Illustration (a) as covered in Section

6 of the Evidence Act.

121 Suffice to say, that what was disclosed by Nilesh

would squarely be covered under Illustration (a) of Section 6 of

the Evidence Act and as such the said disclosure made by Nilesh

to PW38 will be admissible, inasmuch as, it was made absolutely

spontaneously and contemporaneously; with no opportunity for

fabrication and was part of the same transaction.

122 As far as the disclosure made by Anil Bheda to Aruna

Bheda on 12th November 2006 within the precincts of the Vashi

Police Station is concerned, the same would be admissible or not

under Section 6 of the Evidence Act, also arises for consideration

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before us. According to the learned Spl.PP, and Dr.Chaudhry the

same would be admissible, whereas, according to the learned

counsel for the appellants/accused, the same being hearsay (in

view of Anil Bheda's demise) is inadmissible and as such rightly

rejected by the trial Court.

123 We may now analyse the facts and record our

conclusion with respect to the testimony of PW 40. At this stage,

it is apposite to reproduce the evidence of PW 40, particularly in

Para 16, as under:

"16. On 12.11.2006 outside Vashi Police Station my husband disclosed what had happened on 11.11.2006. At that time my husband informed me that Pradeep Sharma's men had taken him and his friend Pandeji in a Qualis Vehicle from Vashi Sector 9. He stated that they were taken to Andheri DN. Nagar police station. He stated that he was produced before Shri. Sharma. He stated that on that night Pandeji was killed in an encounter. He further stated that police officer by name A.T. Patil mediated on his behalf and hence he was released. One Qualis vehicle was standing at a distance and he told me that we have to go in said vehicle. In the said vehicle there were two police in plain clothes by named Desai and Rattu."

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124 PW40's evidence reveals that Anil Bheda was brought

to Vashi Police Station by police; that on withdrawal of her

missing complaint, her and Anil Bheda's statements were

recorded by the police. On stepping out of the said Police Station

(but within the precincts of the Police Station), Anil Bheda took

the opportunity to disclose to Aruna Bheda what had happened

i.e. of his and Ramnarayan's abduction by OA1's men and they

being taken to D.N.Nagar Police Station and produced before

OA1. Anil Bheda also disclosed that since Anant Patil (PW104)

mediated, his life was safe. According to PW40, Anil showed a

Qualis vehicle and told her that they had to go home in the said

vehicle, pursuant to which they sat in the vehicle. A2 and A3

were the police personnel in the Qualis vehicle. (We have while

dealing with the circumstance of confinement, held that Anil

Bheda was kept in wrongful confinement from the time he was

abducted i.e. 11th November 2006 till 12th November 2006.)

125 Thus, keeping in mind PW40's evidence with respect

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to disclosure made by Anil Bheda to PW40, we find that there

was no opportunity for Anil Bheda to fabricate the same,

considering that he was in the custody of the police i.e. A2 and

A3 and had only a moment's reprieve, when he could talk to his

wife i.e. Aruna Bheda (PW 40), when he had the first opportunity

to meet her, before getting into the Qualis vehicle with two police

personnel in plain clothes, who had been waiting at a distance.

The same proves the live link between abduction of Anil Bheda

and Ramnarayan by the police officials, was never snapped, as

Anil Bheda continued to be in their custody even when he was

brought to Vashi Police Station, abduction being a continuing

offence.

126 The contemporaneous and spontaneous utterances by

Anil Bheda to PW40 refer to `actions having a live link to the

fact', `acts as a part of the occurrence' and exclamations (of hurt,

seeking help, of disbelief, of cautioning and the like) arising out

of the facts i.e. spontaneous reactions to the fact, and the like are

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relevant. The same has been discussed in detail in Kamal Vakil

Ansari (Supra), as noted herein-above.

127 The evidence also shows that the disclosure forms

part of the same transaction, since the said declaration is

substantially contemporaneous with the fact and not merely a

narrative of a past, as canvassed in Sukhar v. State of U.P.16.

Hence, Anil Bheda's disclosure to PW 40 about Pradeep Sharma's

men abducting him and Ramnarayan from Vashi, Sector 9, in a

Qualis vehicle; taking them to D.N. Nagar Police Station,

Andheri and producing them before OA1, will form a part of the

same transaction, since the live link between his abduction and

the act of him informing the same to his wife Aruna Bheda (PW

40), was never snapped as he was in continuous detention of the

police officers i.e. A2 and A3. The disclosure was made

contemporaneously, without any opportunity to allow any

deliberate fabrication, inasmuch as, forming the part of the same

transaction.

S.Q. Pathan / N.S. Chitnis 359/867

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128 It is apposite to reproduce the aforesaid rule as it is

stated in Wighmore's Evidence Act, which reads thus:

"Under the present exception [to hearsay] and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued."

(emphasis supplied)

129 Applying the ratio as discussed herein-above, we have

no hesitation in coming to the conclusion that the disclosure

made by Nilesh to PW38 and by Anil Bheda to Aruna Bheda

(PW40) would be admissible by virtue of Section 6 of the

Evidence Act and as such, would squarely fall under the exception

carved out therein.

130 Thus, from the aforesaid evidence as set out in detail,

we find that the prosecution has proved the circumstance of

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abduction of Ramnarayan and Anil Bheda by credible, cogent and

legally admissible evidence i.e. both oral evidence, as well as

documentary evidence.

131 We now propose to deal with the next circumstance

relied upon by the prosecution i.e. Encounter/Custodial

death/Murder of Ramnarayan.

iii. ENCOUNTER/CUSTODIAL DEATH/MURDER

132 Learned counsel for some of the appellants/accused,

in particular, A2, A3, A9, A15, submit that it was a genuine

encounter, whereas some of the appellants/accused have feigned

ignorance of what happened at Nana Nani Park on 11 th

November 2006 and whereas, some accept the correctness of

C.R. No.302/2006 in their 313 statements, however, have

pleaded before us that they were not part of the encounter team.

S.Q. Pathan / N.S. Chitnis 361/867

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133 According to the prosecution, once it is proved that

Ramnarayan Gupta (deceased) was abducted, then the onus

would fall on the appellants (accused) to show that the deceased

escaped from their custody, after which the incident of encounter

took place, and if not, the circumstances under which the

deceased was shot, being a case of custodial death.

134 In order to prove that Ramnarayan was murdered in a

fake encounter by the appellants/accused, the prosecution

essentially relied on the evidence of PW1-Ramprasad Gupta,

PW2-Ganesh Iyer, PW3-Shyamsunder Gupta, PW7-Vilas

Kandalgaonkar, PW39-Mohandas Sankhe, PW83-Umesh

Revandkar, PW77-Mahendra Tatkare, PW63-Arun Awate, PW61-

Vinaykumar Chaube, PW78-Bipin Bihari, PW87-Ajendrasingh

Thakur.

135 Mr. Chavan, learned Spl.P.P submitted that the fact,

that the encounter was a fake and not a genuine encounter, is

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evident not only from the evidence of the aforesaid witnesses, but

even from the documents on record i.e. false documents/station

diary entries were prepared by the appellants-accused to show

that it was a genuine encounter. He submitted that even the spot

panchnama, is a false document created at the behest of A9 to

support the fake encounter. In connection with the same, the

learned Spl.PP relied on the deposition of PW73-Vilas

Kandalgaonkar, who was the author of the spot panchnama. He

submitted that the evidence on record would also show

falsification of records to cover up the fake encounter. He

submitted that even a revolver and railway tickets were planted

on the deceased to show that it was a genuine encounter.

136 The witnesses relied upon by the prosecution,in

support of the said circumstance i.e. murder/custodial death of

Ramnarayan/fake encounter are as under.

a. On false FIR and Fabrication of Records/Evidence

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PW39 - Mohandas Narayan Sankhe

137 PW39- Mohandas Sankhe was working as a PI at the

Versova Police Station at the relevant time; he has stated that at

about 20:50 hrs., A9 of D.N. Nagar Police Station came to the

Versova Police Station and disclosed that he alongwith his team

had gone to nab a wanted criminal by the name Ramnarayan

Gupta @ Lakhanbhaiya at Nana Nani Park; that the said person

i.e. Ramnarayan had fired at them from his revolver, pursuant to

which, the police fired at him with their weapons; and that in the

said incident, Ramnarayan was injured and was taken to the

hospital. According to PW39, he recorded the FIR at the behest

of PI Suryawanshi (A9), which was registered vide C.R.

No.302/2006; that the said FIR bears his signature as well as the

signature of A9; and that the FIR (Exh.-278) was written as per

the say of A9. PW39 has further stated that while recording the

complaint, A9 received a call from Sarvankar (A22), who

informed A9 that the injured was declared dead before admission.

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He has stated that pursuant thereto, he directed PSI Jadhav who

had left for the spot to go to Cooper Hospital to carry out the

inquest panchnama. He has stated that thereafter, A9 in the

presence of two panchas produced two bullet shells, which were

seized and accordingly, a panchnama (Exh.-279) was drawn

between 22:05 to 22:35 hrs. PW39 has further stated that

thereafter, he alongwith A9 and two constables went to the spot,

called two panchas and prepared a spot panchnama of the

incident. He has stated that A9 showed the spot to him and to

the panchas and that the said spot was near Nana Nani Park on

the Link Road, opposite Magnum Opus building. He has stated

that A9 introduced two persons who were police personnel in

civil dress, who were deputed to protect the place of incident;

that he alongwith panchas, examined the place of incident and

saw an electric pole near the place of incident, bearing number

KBU 13-061; that there was a pool of blood near the said pole;

that one revolver was lying near the pool of blood; that between

the pool of blood and the gate of Magnum Opus building, one

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empty bullet shell was lying; that the photographs of the spot

were taken with the help of a private photographer; that

measurements of the place of incident and the position of the

pool of blood and other places was taken; that they checked the

cylinder of the revolver which was lying (allegedly belonging to

Ramnarayan Gupta) and found two cartridges and two empty

shells in the cylinder; that one finger print expert by the name

Sawant examined the revolver for finger prints, but did not find

any fingerprints and accordingly, gave his report; that he seized

the said revolver; that the two live bullets in the said revolver had

hammer mark on it; that the said bullets had mark .32 KF S &

WL; that he seized these bullets and packed them separately and

sealed the packet; that the empties also had hammer mark on it;

that the said empties also had mark .32 KF S & WL; that he

seized the same and packed and sealed the said empties in

different packets; that he seized the empty shell which was lying

at the place of incident, which had a mark KF 94 9 MM 22; that

he seized the same, packed and sealed the said empty shell

S.Q. Pathan / N.S. Chitnis 366/867

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separately; that he collected the blood sample from the pool of

blood lying and also collected blood stained soil from the said

place and plain soil from the spot and put the same in different

bottles and each of these bottles were packed and sealed

separately. (It is the prosecution case that no blood was collected

in 'bottles', but was collected in plastic bags, and for this,

prosecution relied on the evidence of PW83-Umesh Revandkar,

PW77-Mahendra Tatkare and PW102-Sahil Joshi, reporter from

Aaj Tak, who took a video of the spot. The said videography was

produced in evidence. The said evidence will be dealt with a

little later. He has further stated that the panchnama started on

11th November 2006 at 23:00 hrs and was over on 12th

November 2006 at 01:35 hrs. He has stated that the panchnama

was read over to the panchas and signatures of the panchas were

taken. He has identified the panchnama which is marked as

Exh.-283. The said witness has identified the revolver (Article

49); two empty shells which had marking KF .32 S & WL

(marked as Article 51 colly) (the first bullet bears marking KF S &

S.Q. Pathan / N.S. Chitnis 367/867

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WL .32 and the second bullet bears marking RP S & WL .32).

Both the bullets, having indent on the rear, were marked as

Article 54 (colly) and the empty shell was marked as Article 57.

PW39 has identified the two police personnel who were in civil

dress as PSI Patade (A18) and API Palande (A15). PW39 was

shown the report of the finger print expert. The same was

marked by consent, as Exh.-284. According to PW39, API-

Sarvankar (A22) and API Palande (A15), later came to Versova

Police Station, pursuant to which he called two panchas; that the

said persons produced empty shells from their revolvers from

which they had fired; that API Sarvankar (A22) pulled out the

empty shell from his revolver; that the panchas examined the

shell and made notings about the same; that API Palande (A15)

also pulled out an empty shell; that on examination of the said

shells, notings were made; that the shell of API Sarvankar (A22)

had mark KF 98 380 2 and the shell of API Palande (A15) had

mark KF 01 380 2. He has stated that accordingly he prepared

the panchnama (Exh.-286) and the panchas put their signatures

S.Q. Pathan / N.S. Chitnis 368/867

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on the same. He has identified the shells which were marked as

Articles 60 and 63. He has stated that the said panchnama was

carried out on 12th November 2006 from 2:40 hrs. to 3:15 hrs.

and that accordingly an entry was made in the Station Diary at

serial No.2 in his handwriting (The said entry is at Exh.-287).

137.1 According to PW39, he thereafter recorded the

statements of the members of the raiding team and has identified

the said persons, whose statements were recorded. He has further

stated that he also recorded the statements of Ramrajpal Singh

and Manohar Kulpe (DW 1); that he forwarded the body to J.J.

PM Centre from Cooper Hospital alongwith the ADR form. He

has identified the signature of PSI Jadhav on the ADR form. The

said ADR form was exhibited by consent as Exh.-288 and the

request form of PM was marked as Exh.-289. He has further in

his examination stated that the mark on the bullet should read as

KF .32 S & WL. Similarly, marks on other shells should read as

KF and then bore. He has further stated that he forwarded the

S.Q. Pathan / N.S. Chitnis 369/867

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FIR and other documents to the learned Metropolitan Magistrate

on 13th November 2006 and carried on the investigation till 15 th

November 2006 and thereafter, as per the directions of his

superiors, he handed over the investigation to Dilip Patil of

Oshiwara Police Station. He has stated that thereafter he was

called by SIT on 23rd December 2009 when his statement was

recorded under Section 161 Cr.PC and again on 21 st April 2010

when his statement was recorded by the learned Magistrate under

Section 164 Cr.PC.

137.2 According to PW39 the name of Ramrajpal Singh

was informed by one of the members of the team and that the

name, address and telephone number of Kulpe was given to him

by API Palande (A15) and that his statement was recorded by SIT

on that day.

137.3 PW39 was extensively cross-examined by the learned

counsel for OA1. In the cross-examination, PW39 has stated that

S.Q. Pathan / N.S. Chitnis 370/867

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during the course of his investigation, he did not come across any

evidence to doubt the genuineness and correctness of the

information received during investigation of CR No.302/2006;

that he confirmed that the site of encounter was Nana Nani Park,

Versova, when he visited the said park for drawing panchnama;

that he again re-confirmed the spot from the staff of the mobile

patrol van, who had taken the injured from Nana Nani Park to

Cooper Hospital. He has further admitted that he learnt from

his investigation that a Mobile Patrol Van on receiving a message

at 20:18 hrs., had reached Nana Nani Park at 20:28 hrs.; and

that the deceased was taken from Nana Nani Park at around

20:36 hrs. and reached Cooper Hospital at 20:57 hrs. PW39 has

also admitted that on 11th November 2006, PW1 had not

approached him at Versova Police Station between 20:50 hrs. to

22:35 hrs, nor any constable from Versova Police Station had

approached him, inquiring whether Ramprasad Gupta (PW1) had

come to the Police Station regarding the said case. He has stated

that for drawing the panchnama, he had gone from Versova

S.Q. Pathan / N.S. Chitnis 371/867

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Police Station to Nana Nani Park at 22:45 hrs. and the entire

process of drawing panchnama and seizure at the place of

incident took place till 1:35 hrs He has stated that he did not see

PW1 or any other person at the spot of the incident nor did he

see PW1 or any of his representative taking a video clipping or

photographs, at the relevant time. It has been further brought in

the cross-examination of PW39 that the investigation revealed

that A9 had called his team members to his chamber and

introduced A13, A15, A18 and A22 and other staff of D.N. Nagar

Police Station; that A9 had given the description of the person

who was to come to Nana Nani Park to the team members; that

A9 and others prepared a plan with respect to the operation to be

carried out; that the team left the police station armed with

service weapons, at 6:55 hrs; that it was revealed during

investigation that A9 had made two teams; that at about 8:10

hrs, one rickshaw came near the electric pole from Versova and

stopped and one person got down from the said auto rickshaw;

that the said person was loitering near the place; that A9's

S.Q. Pathan / N.S. Chitnis 372/867

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informant, pointed out to the said person, being associate of

Chhota Rajan gang; that A9 signaled to his teams about the

arrival of the said person and that it was decided to accost the

said person; that the said person sensed police presence and

pulled out a revolver from his waist and pointed it towards A9;

that A9 warned the said person that they were police and that he

should surrender and not fire; that the said person did not heed

to the caution and fired in the direction of A9; that the said

person also fired in the direction of the second team; that A22

called out to tell the said person, not to fire and that they were

police; that the investigation also revealed that as two shots were

fired by the said person, the police apprehending danger to their

lives and to the public nearby, fired at the said person i.e. A9 fired

two rounds at the said person; A15 fired one round and A22

fired 1 round.

137.4 PW39 has further admitted that it was revealed

during investigation that the deceased was injured and had fallen

S.Q. Pathan / N.S. Chitnis 373/867

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down with a weapon in his hand; that the team members had

gone near the said person and found him injured and bleeding

and accordingly, called a Mobile Patrol Van; that a request was

made to the people to carry the said person to the hospital,

however, the request was turned down; that the two persons who

were approached for help, were Ramrajpal Singh and Manohar

Kulpe (DW2) and since the said two persons had witnessed the

incident, the officers had noted down their names, addresses and

contact numbers. According to PW39, after returning from the

spot and after seizing the empties from A9, it transpired that A9

had fired in self defence and that A15 and A22 had also fired in

self defence.

137.5 PW39 has further in his cross, admitted that all the

properties of the police station are required to be entered in the

Muddemal register, however, he does not remember if entries

regarding the property received from J.J. Hospital was made in

the Muddemal Register. He has stated that if the entries are

S.Q. Pathan / N.S. Chitnis 374/867

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made, it would be made in the Muddemal register of the Versova

Police Station. The said witness after checking the registers of the

Versova Police Station has stated that such entry is not available in

the station diary register. He has admitted that the Muddemal

Entry Nos. 148/06 and 149/06 stated in Exhibits-285 and 287

respectively were made on his instructions and that the said

station diary entries were made after the entries were made in the

Muddemal Register. He has stated that the Muddemal Entry

No.147/06 stated in Exh.-282 was made on his instructions and

Muddemal Register Entry pertaining to the articles received from

JJ. Hospital would be after Muddemal Entry No. 149/06. He has

stated that the Muddemal Register Entry number is also noted on

the packet of the said muddemal for any subsequent retrieval of

the said property (witness was shown Exhibits-290 to 293). He

has further admitted that on perusing Exhibits 290 to 293, the

same reveals that no Muddemal Register Entry number was put

on the packet i.e. with respect to property received from J.J.

Hospital.

S.Q. Pathan / N.S. Chitnis 375/867

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137.6 PW39 has admitted that when FIR was registered in

C.R. No. 302/2006, the name of A11 was not disclosed by A9, as

the person who fired the gun. He has stated that he did not seize

the weapon of A11 nor did he make any efforts to collect the

scientific evidence as to whether the weapon of A11 was used or

not.

138 The evidence of PW39 cannot be relied in its entirety,

inasmuch as, part of his evidence appears to be doubtful and

contrary to the other evidence on record, both, oral and

documentary. The circumstances on record would reveal that A9

had lodged a false FIR alleging that Ramnarayan was shot at, in

retaliation. The falsity of the FIR would be also evident from the

circumstances enumerated herein-under.

b. Spot panchnama not recorded at the spot

S.Q. Pathan / N.S. Chitnis 376/867

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139 It is pertinent to note that the evidence of PW73-

Vilas Kandalgaonkar with respect to preparing of spot panchnama

at Nana Nani Park will show that the spot panchnama was not

recorded at the spot i.e. at Nana Nani Park, as deposed to by

PW39 but was infact, drawn at the Versova Police Station itself.

139.1 The fact that the spot panchnama was prepared at the

spot of the incident, as disclosed by PW39, is falsified by PW73-

Vilas Kandalgaonkar, the person who scribed the panchnama, the

evidence of PW1-Ramprasad, PW2-Ganesh Iyer; PW83-Umesh

Revandkar; and PW77-Mahendra Tatkare.

PW73 - Vilas Parmanand Kandalgaonkar

140 PW73-Vilas Kandalgaonkar was attached to Versova

Police Station, as a Constable at the relevant time. He has stated

that since he was on night duty after attending to a case, he

returned to the police station at about 23:00 hrs; that he sat on

S.Q. Pathan / N.S. Chitnis 377/867

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the bench outside the police station; that Detection Police Head

Constable Revandkar (PW83) told him that he was called by

Crime PI Sankhe (PW39); that he met PI-Sankhe, who told him

to go to the Detection Branch and do as per the orders of the

officers in the Detection Branch; that he went to the Detection

Branch; that two officers were present in the Detection Branch,

who told him that a panchnama was to be reduced into writing;

that he reduced the panchnama into writing as dictated by the

said officers; that it was a spot panchnama; that he learnt while

scribing the said panchnama, that it was with respect to exchange

of firing that took place on 11th November 2006 at Saat Bangla,

Nana Nani Park, which came within the jurisdiction of Versova

Police Station; that after the panchnama was reduced into writing,

he was told to leave and that he went to the police station. PW73

has admitted in his cross, that the panchnama (Exh.-283) was

scribed by him in his writing during that night. He has stated that

SIT recorded his statement on 28 th August 2010. Certain

omissions were sought to be brought on record in the cross-

S.Q. Pathan / N.S. Chitnis 378/867

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examination with respect to, which room he was asked to go,

however, the said omissions are minor omissions and do not go to

the root of the matter. The fact remains, that PI-Sankhe had

asked him to do as per the orders of the officers. PW73 has

denied the suggestion that he was deposing falsely at the behest of

SIT. He has further admitted that he did not disclose to anyone

till 28th August 2010 that the spot panchnama was prepared in the

detection room of Versova Police Station. In para 12 of his cross-

examination, the said witness has admitted that the panchnama

was dictated by the officer and he reduced it into writing and that

he did not ask the officers as to why the panchnama was not

recorded on the spot. He has further in para 13 of his cross,

stated that the police officer brought in writing the particulars as

regards to the electricity pole number and measurements and that

he had not made a complaint to anyone that the panchnama was

recorded in the police station, without visiting the spot. He has

denied the suggestion that he wrote the panchnama at the say of

Sankhe (PW39) and that PW39 dictated the contents of the

S.Q. Pathan / N.S. Chitnis 379/867

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panchnama. Although, in his statement before SIT, the name of

the officer who had dictated the contents of the panchnama is not

disclosed, PW73 in his deposition, has stated that it was A9, who

had dictated the panchnama to him. He has denied the

suggestion that the said panchnama was drawn at the spot.

PW39's evidence that the spot panchnama was done at the spot is

also belied by PW83-Umesh Revandkar. Infact, PW83

corroborates the evidence of PW73.

141 It is also pertinent to note, that action was taken

against PW39-Mohandas Sankhe and the same is revealed from

the evidence of PW110-K.M.M. Prasanna. PW110 in his

evidence has deposed that default report was made against PW39

for preparing a false spot panchnama in C.R. No. 302/2006 and

on the basis of this report, he was given a punishment of stoppage

of an annual increment for one year by the then CP, Mumbai.

PW83 - Umesh Yashwant Revandkar

S.Q. Pathan / N.S. Chitnis 380/867

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142 PW83 was attached to Versova Police Station as a

Police Head Constable at the relevant time, and was attached to

the Detection Branch of Versova Police Station. He has stated

that API-Sartape (A11) was in-charge of the Detection Branch. He

has stated that on 11th November 2006, he was on night duty and

that he resumed duty at 20:30 hrs.; that after resuming duty, he

learnt that an encounter had taken place at Nana Nani Park and

therefore, police officers and police staff had gone to Nana Nani

Park; that he and PC-Imade, 30367 too had gone to Nana Nani

Park; and that they reached there within 15-20 minutes; that

they saw a crowd at the said corner of Nana Nani Park; that

when they reached there, PI-Sankhe (PW38), PSI-Harpude (A17)

and PC-More from the Detection staff were present at the spot;

that some representatives of newspapers were also present at the

spot; that the news representatives were doing shooting at the

spot with their cameras; that they learnt that the squad of Sharma

Saheb had done encounter of a gangster by the name Gupta; that

S.Q. Pathan / N.S. Chitnis 381/867

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he learnt that the injured was admitted to Cooper Hospital; that

there was pool of blood and a revolver was lying near the pool of

blood and one cartridge at some distance from the pool of blood;

that after some time Sr. PI - Sonawane from Versova Police

Station came to the spot; that PI-Sankhe (PW39) told him to

bring two panchas for recording the spot panchnama; that they

produced the panchas before Mr. Sankhe; that Daddikar, Tatkare,

Nandawadekar and More were collecting revolver, samples of

blood; that Harpude (A17) was collecting samples of earth; that

these articles were collected in plastic bags; that all articles in the

plastic bags were handed over to Harpude (A17); that Sr. PI -

Sonawane was at the spot, but after some time, he left the spot in

his vehicle; that he was at the spot for about 30-45 minutes; that

thereafter, he went for patrolling within the jurisdiction of

Versova Police Station as More was doing work at the spot; that

at about 11:00-11:30 hrs, he returned to Versova Police Station

and learnt that the injured had died and a crime was registered at

Versova Police Station; that after he returned to the police station,

S.Q. Pathan / N.S. Chitnis 382/867

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PI - Sankhe (PW39) called him in his cabin and told him to bring

a police constable having good handwriting, as spot panchnama

was to be recorded; that he took PC Kandalgaonkar 27503

(PW73) to PI-Sankhe (PW39); that PI-Sankhe (PW39) handed

over some papers to Kandalgaonkar, that Kandalgaonkar

(PW73) scribed the panchnama in the adjoining Detection Room

and that thereafter, he proceeded for patrolling within the

jurisdiction of Versova Police Station. The statement of the said

witness was recorded by SIT on 24 th August 2019 and before the

Magistrate on 18th September 2010. He has stated that prior to

his disclosure to SIT, he had not disclosed about what had

transpired to any person; and that as he was not present, when

PW73- Kandalgaonkar was writing the panchnama, he did not

know the contents of the same.

143 Although an endeavour was made by the learned

counsel for appellants-accused to discredit the evidence of this

witness i.e. to show that he was not present at the police station,

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the said witness has explained why there is no mention in the

station diary entry of his roll call on 11 th November 2006 and as

such there is no reason to disbelieve his testimony. As far as

squad is concerned, the said witness has denied that he has

deposed falsely that he learnt that the squad of Pradeep Sharma

had done the encounter. He has also denied the suggestion that

he was deposing under the pressure of SIT. He has further stated

that he had not disclosed to anybody prior to the recording of his

statement on 24th August 2010 that samples of earth (soil) were

taken by Harpude (A17) and that the plastic bags containing

articles were handed over to Harpude (A17) by More, Daddikar

and Nandawadekar. PW83's evidence also reveals that blood was

collected in plastic bags and not in bottles as deposed to, by

Sankhe (PW39).

PW77-Mahendra Govind Tatkare:

144 The evidence of PW77 was also relied upon by the

S.Q. Pathan / N.S. Chitnis 384/867

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prosecution to show that none were present at the spot when the

alleged spot panchnama is stated to have been prepared i.e. on

the intervening night of 11th and 12th November 2006, between

23:00 hrs. to 1:20 hrs. PW77 has stated that he was attached to

Versova Police Station and was on duty on Mobile-II of Versova

Police Station i.e. on night duty; that at about 20:18 hrs, Versova

Mobile-I received a message from Western Control Room stating

that one injured person was lying near Nana Nani Park; that at

that time, he was in the police station; that after sometime, Peter

Mobile Vehicle also received a message from Western Control

Room that the Peter Mobile Vehicle be taken to the spot; that

after some time they were also told to go to the spot and

accordingly they reached the spot between 20:45 hrs to 21:00

hrs; that when they reached the spot, officers from their police

station i.e. PI-Sankhe (PW39), PSI-Harpude (A17), Hawaldar

Nandavadekar, More and Imle from Detection Branch were also

present at the spot; that before they reached the spot the injured

was already taken to the hospital by Mobile-I of Versova Police

S.Q. Pathan / N.S. Chitnis 385/867

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Station; that on reaching the spot, he learnt that there was an

encounter between the police and a Gunda; that the police

personnel were collecting samples of blood from the pool of

blood and a revolver from the spot, and the same were kept in a

plastic bag; that one empty cartridge of pistol was lying at some

distance from the pool of blood; that A17 collected samples of

earth (soil) from the spot in a plastic bag; that representatives of

TV channels were engaged in shooting and were taking

interviews/bytes of the police officers in plain clothes; that A9

from D.N. Nagar Police Station was giving an interview; that

thereafter, the officers from Versova Police Station, the other

officers and the police personnel left the spot, after which, he

also left the spot when everything was calm and quiet. He has

stated that he was at the spot for about 30 to 45 minutes. The

statement of PW77 was recorded by the SIT on 24th August 2010

and was also recorded by the learned Magistrate on 16 th

September 2010.

S.Q. Pathan / N.S. Chitnis 386/867

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144.1 There is nothing in the cross to disbelieve the

testimony of the said witness with respect to having gone to the

spot, pursuant to the message received by him from the Western

Control Room. He has in his cross-examination admitted that

there was a small pool of blood and it was only at one spot,

however, could not tell as to in which direction from the pool of

blood, the empty cartridge was lying. He has denied the

suggestion that he was at the spot for about 3-4 hours, after he

reached the spot. He has further in his cross stated that the

officers left the spot approximately at 9:30 hrs, however, he had

not noted down the same anywhere i.e. that the officers left the

spot approximately at 21:30 hrs. He has in his cross-examination

also admitted that A17 was helping in collection of evidence at

the spot and that he did not know as to when A17 had reached

the spot. The evidence of this witness also reveals that blood was

collected from the spot in plastic bags. Thus, this witness also

corroborates PW83, with respect to collection of blood in plastic

bags.

S.Q. Pathan / N.S. Chitnis 387/867

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145 The aforesaid evidence goes to show that nobody was

present at the time when the spot panchnama was alleged to have

been done at the spot i.e. between 23:00 hrs to 1:20 hrs. Except

for PW39, the evidence of all the witnesses would reveal that the

spot panchnama was not prepared at the spot. We, at the cost of

repetition, note that a default report was made against PW39 for

preparing a false spot panchnama in C.R. No.302/2006 and on

the basis of the same, his annual increment was stopped for one

year. Infact, the evidence of PW1 also duly corroborates the

evidence PW83, PW73 and PW77. According to PW1, when he

reached the spot at about 22:30 hrs., nobody was present at the

spot. The said evidence of PW1 is also duly corroborated by PW2

with respect to the same. Both PW1 and PW2's evidence reveal

that when they reached the spot i.e. at Nana Nani Park at 22:30

hrs., there was total darkness and none was present. PW1 has

stated that when they reached the spot at 22:30 hrs., on

searching, they found some blood near the electric pole; that on

S.Q. Pathan / N.S. Chitnis 388/867

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the blood, a newspaper 'Dopahar Ka Samna' was placed and on

that paper, a stone was kept; that they found one jeep type

vehicle parked at some distance; that 3 to 4 persons were

standing near that vehicle; that he asked them whether there was

any encounter; that they told him that no encounter had occurred

on the spot. The evidence of PW2 is on similar lines.

146 Thus, the aforesaid evidence shows that the spot

panchnama was not prepared at the spot as alleged by PW39 i.e.

between 23:00 hrs. to 1:20 hrs and as such, the evidence of

PW39 to that extent is contradicted and belied by the

overwhelming evidence of other witnesses vis-à-vis the same i.e.

the evidence of PW83, PW73, PW77, PW1 and PW2.

c. No meeting held by A9 in his cabin

147 According to A9, he held a meeting in his cabin at

16:20 hrs. to inform the police personnel of the information

received from the informer that Lakhanbhaiya (Ramnarayan) was

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to come near Nana Nani Park to meet his accomplice. In the said

meeting, A9 has alleged that A15, A22, A18, A13 and other staff

were present. According to A9, he explained the information

received from the informer and accordingly, a plan was chalked

out to apprehend Lakhanbhaiya, an alleged member of the

Chhota Rajan Gang.

148 Before we proceed to analyse the evidence adduced

by the prosecution which falsifies the holding of any meeting, it

would be apposite to reproduce the affidavit filed by A9 in this

Court and admitted and relied upon by A9, during the course of

his arguments before us. We wish to reproduce only the relevant

part of the additional affidavit filed by A9 with respect to the

sequence of events as set out by him, as under:

"ADDITIONAL AFFIDAVIT

I. PRADEEP PANDURANG SURYAWANSHI, age 54, Senior Police Inspector-In-Charge of Andheri Police Station, Mumbai for myself and on behalf of other Police Officers/Interveners do hereby state on solemn affirmation as under :-

S.Q. Pathan / N.S. Chitnis 390/867

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1. ..... ..... ..... ..... ..... ..... ..... .....

2. ..... ..... ..... ..... ..... ..... ..... .....

3. I further state that the correct and true details of the incident that took place on November, 11, 2006 at Nana Nani Park are put by way of a chart as follows:

Sr. Date and Particulars No. Time

1 Nov. 11, PI Pradeep Suryawanshi received

2006 at 4.45 information from his informant that one p.m. Ramnaryan @ Lakhanbhaiya Vishwanath Gupta, a wanted and absconding accused in serious crimes like murder, dacoity, extortion, etc was meeting his accomplices at Nana Nani Park, Seven Bungalows, Andheri (W).

2 Nov. 11, PI Pradeep Suryawanshi informed his 2006 superior Officers i.e. the ACP D.N. Nagar at 5.15 p.m. Division, the DCP Zone-IX and the Addl.

Commissioner of Police, West Region accordingly. The said Officers ordered Pl Suryawanshi to arrest Ramnaryan Gupta with the additional help of Officers and Policemen of Versova Police Station.

3 Nov. 11, PI Suryawanshi contacted PI Sonawane of 2006 at 5.40 Versova Police Station for help and p.m. requested him to send available Officers to D.N. Nagar Police Station.

4 Nov. 11, PI Sartape, PSI Harpude and PN - 26645

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2006 at 6.10 of Versova Police Station attended p.m. D.N.Nagar Police Station as ordered.

5 Nov. 11, PI Suryawanshi called his staff i.e. API 2006 at 6.30 Sarvankar, API Palande, PSI Patade and p.m. other staff along with Officers of Versova Police Station to his cabin.

6 Nov 11, 2006 PI Suryawanshi briefed all the staff about at 6.40 p.m. the secret information given by the informant and the informant described the absconding accused Ramnarayan. A plan to arrest Ramnarayan was made and the officers and men were given appropriate instructions. The wanted person was a hardcore criminal and was always in possession of fire arms and never hesitated to use it and therefore it was necessary to plan the operation accordingly.

7. Nov. 11, The Police squad reached the spot on 2006 at 7.10 motor-cycles and rickshaws where p.m. Ramnarayan was expected to come to meet his accomplices. The squad was divided into two groups and P! Suryawanshi, the informant, API Sartape, PSI Patade, Head Constable 18839, PN 26645 and PC-10502 hid themselves at the west side of Nana Nani Park near the compound. The second group of API Palande, API Sarvankar, API Harpude, Police Constable 31963, PC-31241 and PC- 33492 were waiting at East side of Nana- Nani Park opposite Trishul Building in such a way that both the groups could

S.Q. Pathan / N.S. Chitnis 392/867

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watch the road and vehicles on it but were not visible to a casual onlooker from the road. The site map of the place of incidence is annexed hereto and marked as Exhibit A-1.

8. Nov 11, 2006 At this time, a rickshaw stopped near the at 8.10 p.m. Electric Pole at the South side of end of Nana Nani Park. The approximate distance of the passenger alighting from the rickshaw from both the groups of the squad was about 50 feet.

9. Nov. 11, The informant immediately gave a signal 2006 at 8.10 to Pl Suryawanshi that the passenger p.m. alighting from the rickshaw was the wanted accused Ramnarayan.

10. Nov. 11, PI Suryawanshi alerted the other squad 2006 at 8.11 under API Palande by the pre-arranged p.m. signal that Ramnarayan had arrived.

11. Nov 11, 2006 Both the groups of Police officers moved at 8.12 p.m. forward to arrest Ramnarayan. However perhaps due to the sudden movement of the first group headed by PI Suryawanshi, Ramnarayan became very alert and knew that he was surrounded by Police. Within a split second, he took out his firearm and pointed it towards the group of Pl Suryawanshi's men. Pl Suryawanshi

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shouted and warned him that they were all policemen and he should surrender.

(Lakhan, hum policewale hai, fire mat karo. Surrender ho jao). However, Ramnarayan fired a round towards PI Suryawanshi who evaded the same by ducking down. At the same moment, API Sarwankar also warned Ramnarayan to surrender. Within a split second, Ramnarayan fired another round towards the second group of officers:

12. Nov 11, 2006 The Police party to save themselves and to at 8.13 p.m. protect the innocent road users, fired total of five rounds towards Ramnarayan (Pradeep Suryawanshi two rounds, API Sarwankar, API Palande and API Sartape each one round). Ramnarayan fell down along with the firearm.

13. Nov 11, 2006 The Police officers approached the at 8.14 p.m. wounded Ramnarayan from all the sides as they apprehended that Ramnarayan may fire at them. On closer inspection Ramnarayan was found alive but seriously wounded and thereafter PI Suryawanshi immediately at 8.15pm reported the incidence to Police Control room.

14. Nov 11, 2006 The Police Officers in the meanwhile at 8.28 p.m. requested other private vehicles to take the wounded person to hospital but no body cooperated. Therefore wounded

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Ramnarayan was put in Versova 1- Mobile Van which had received the message from Control at 8.18p.m. and arrived at the spot at 8.28 p.m. because of the report of P.1.Suryawanshi to the Police Control. The wounded person was loaded in the Mobile-1 and it started for hospital at 8.36 p.m.

15. Nov 11, 2006 The wounded person was brought to the at 8.57 pm OPD of Cooper Hospital by the police.

16. Nov 11, 2006 Ramnarayan was declared dead by the at 9.00 pm Casualty Medical Officer at 9 p.m.

17. Nov 11, 2006 PI Suryawanshi instructed his staff to at 8.15 pm cover and protect the spot of firing after and Ramnarayan was put in the vehicle for 9.15 pm hospitalization and thereafter went to Versova Police Station at 8.50pm to lodge FIR of the incidence. While the FIR was being recorded, API Sarwankar informed that Ramnarayan was declared dead before admission by the CMO of Cooper Hospital.

18. Nov 11, 2006 P1 Sankhe of Versova Police Station at 9.50pm completed recording of FIR No.302/06.

19. Nov 11, 2006 Pl Sankhe made a panchnama of two at 10.05 pm empties (pungli) of the bullets fired from to 10.35pm the Pt. 38 Service Revolver of Pi Suryawanshi.

S.Q. Pathan / N.S. Chitnis 395/867

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Nov 11, 2006 PSI Jadhav of Versova Police Station between completed Inquest Panchnama at Cooper 10.05 pm to it is pertinent to note that besides an 00.15 pm on amount of Rs.920.75 and a pocket Nov. 12, telephone diary, there were two Local 2006 Railway tickets found on the person of the Ramnarayan;

(i) Ticket No:94303 dated 11 Nov-14 from Sanpada to Majid/ Mulund/Bandra (via Wadala) and

(ii) Ticket No.36825 dated 11 Nov-16 from Bombay Central to Jogeshwari. All the material found on the person of Ramnarayan wan sealed in separate envelopes in presence of Panch, witnesses and their signatures taken on the envelopes.

20. Nov 11, 2006 PI Sankhe of Versova Police Station made between a spot Panchnama at the place of 11.00 p.m. to incidence. Pl Sankhe carefully took into 01.35 a.m. on possession a Revolver used by Nov. 12, Ramnarayan, having wooden butt and 2006. marking "MADE IN JAPAN" lying at about 9ft from the Electric Pole No.KBU-

13/061, and after its inspection removed two live cartridges with hammer marks on them and two empties, all having marks "KF.32S $ WL" from this Revolver. All this material was separately packed in 3 envelopes and sealed in presence of two panch witnesses and signed by both the

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witnesses. The Police also took into possession one empty having mark "KF-94 9MM22" (near entrance of Magnum Opus Bldg) at a distance of 16.5 ft (fired from 9mm Pistol of API Sartape). This empty was separately packed and sealed in the presence of panch witnesses. The Police also collected the blood sample from the accumulated blood on the spot and blood mixed with mud and only mud in 3 separate clean glass bottles which were sealed in the presence of the panchas.

21. Nov 12, 2006 PI Sankhe of Versova Police Station made from 2.40 a panchnama and took into possession one a.m. to 3.15 empty cartridge each from the Revolvers a.m. of API Sarwankar and AP1 Palande in the presence of two panch witnesses at Versova Police Station.

149 To the aforesaid affidavit is annexed the map of the

spot of the incident. The said map has also been admitted to by

A9. In the facts, we deem it necessary to reproduce the said

sketch/map of the spot of incident, for a better understanding of

how the encounter is alleged to have taken place, according to

some of the appellants/accused.

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S.Q. Pathan / N.S. Chitnis 398/867

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150 The aforesaid alleged meeting held by A9 in his cabin

is disputed by some of the appellants-accused, who are alleged to

have been present at the time of the meeting or at the time of the

alleged encounter. The holding of the meeting is also falsified by

the CDR of the accused persons i.e. the meeting that allegedly

took place in A9's cabin at D.N. Nagar Police Station at 18:20

hrs.

(i) According to A17, he never attended the meeting.

Infact, he has denied the meeting. The same is evident from the

answer given by A17 in his 313 statement to Question No.1149;

(ii) The CDR (Exh. - 581) and Cell ID (Exh. - 571) show

that A9 was at Juhu-Vile Parle between 12:17 hrs.-18:21 hrs.

(The distance approximately between Juhu-Vile Parle and D.N.

Nagar Police Station is 10 to 15 minutes);

(iii) The CDR (Exh. - 521) and Cell ID (Exh. - 548)

show that A15 - Palande was at Amboli, Andheri (West) and not

at D.N. Nagar Police Stations, at the relevant time;

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(iv) The CDR (Exh.-936) and Cell ID (Exh.-421) show

that A17-Harpude was at Yari Road Bridge Chowky at 18:40

p.m;

(v) The CDR (Exh. - 521) and Cell ID (Exh.-548) show

that A22 - Sarvankar was somewhere at Juhu at 18:21 p.m;

151 The aforesaid location of the police personnel who

are alleged to have been present at the meeting with A9 and the

location of A9 clearly shows that no such meeting as alleged, took

place in the cabin of A9 on 11th November 2006 at 18:20 hrs in

D.N. Nagar Police Station, as claimed by A9 in his FIR being C.R.

No.302/2006.

d. No prior information furnished to superiors by A9

152 It is the case of A9, that he had informed the superior

officers of the information received by him and had taken their

permission to conduct the operation. Admittedly, there is no

document on record to support the said claim made by A9 by way

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of a station diary entry or any other entry. Infact, the evidence is

to the contrary, inasmuch as, all the superior officers have denied

receiving any such information from A9. The prosecution in

support of its case, has also relied on the evidence of the

following witnesses i.e. the evidence of the superior officers of A9

to show that they received no such information as alleged by A9.

PW63 - Arun Vasantrao Awate:

153 PW63-Arun Awate was working as an ACP at D.N.

Nagar Division under Zone IX, at the relevant time. D.N.

Nagar, Oshiwara and Versova Police Stations comes within the

jurisdiction of D.N. Nagar Division. PW63 has stated that in

November 2006, Mr. Ajendra Singh Thakur (PW87), was the

Senior P.I. in D.N. Nagar Police Station; that OA1-Pradeep

Sharma, A9-Pradeep Suryawanshi, Tavare and Avdhoot Chavan,

were the police inspectors in D.N. Nagar Police Station. He has

stated that at the relevant time, OA1 alongwith some police

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personnel served in a special squad and worked as per the

directions of their superior officers. He has stated that as per his

knowledge API-Palande (A15) and some constables were on

deputation in the squad of OA1 and that as per the orders of

Addl. CP (West Region), the said squad was formed. He has

stated that A15 was a member of the said squad.

153.1 PW63 has stated that on 11th November 2006, he had

visited Andheri Sports Complex for preparation of a programme

"Umang" to be held on 12 th November 2006 at the said place and

also for law and order and for security purpose, since Andheri

Sports Complex came within the D.N. Nagar Division i.e. within

his jurisdiction. He has stated that on the said day, when he was

on bandobast duty at the venue at about 20:00 hrs. to 20:15 hrs,

Vijay Sonawane, Senior P.I of Versova Police Station met him at

the venue and informed him that there was exchange of fire

between the police and accused within the jurisdiction of Versova

Police Station; that after informing the same, Vijay Sonawane

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immediately left the venue; that on that day, he did not receive

any information as regards the said exchange of fire from any

other officers; that on the next day i.e on 12 th November 2006,

he learnt that one Ramnarayan Gupta @ Lakhanbhaiya was killed

by a joint team, from Versova Police Station and D.N. Nagar

Police Station. PW63 has categorically stated that on 11 th

November 2006, he did not receive any information as regards

Ramnarayan.

153.2 In his cross-examination, PW63 has stated that on

12th November 2006 he made inquiry as regards the person who

died in the police firing and during the inquiry, learnt that the

person who was killed in the police firing, was a wanted accused

and that in the joint operation Ramnarayan Gupta @

Lakhanbhaiya was killed in an encounter by the police from

D.N. Nagar Police Station and Versova Police Station. PW63 has

further in his cross stated that the FIR, statements and

investigation papers were placed before him for his endorsement;

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that he did not call the officers whose statements were recorded

in C.R. No. 302/2006 for the purpose of questioning them. In his

cross, PW63 has admitted that it was correct to say that as per

police manual, all senior officers are required to visit the scene of

offence in a serious crime and that these officers would include

Senior P.I, ACP, DCP; and that he did not ascertain whether the

DCP had visited the scene of offence. He has further admitted

that it was expected of him to visit the scene of offence on

learning of exchange of fire between the police and accused and

that as he was engaged in bandobast duty, he could not visit the

spot. He has further admitted that he did not inform the said

information to his superiors such as DCP and Addl. CP. He has

further in his cross stated that in respect of C.R. No.302/2006 of

Versova Police Station, he had the occasion to supervise the

inspection/investigation, however, he did not give instructions to

the I.O., during the course of investigation on the basis of the

papers of the crime placed before him nor had he any occasion to

assist the DCP in preparation of the report to be submitted to the

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Competent Authorities. He has stated that while acting as a

supervising officer, at no point of time, he had any doubt that the

police firing of 11th November 2006 was not genuine. He has

further admitted that he did not make inquiry with the officers

who were involved in the incident and when the statements of

these officers were placed before him, he was satisfied with those

statements.

PW61 - Vinaykumar Keshavprasad Chaube:

154 PW61 was attached to Zone-IX, Mumbai as DCP at

the relevant time. He has stated that there was one programme

"Umang" to be held on 12th November 2006 at Andheri Sports

Complex within the jurisdiction of Oshiwara Police Station

(Under Zone-IX) for the Police Welfare Fund and that as he was

the Nodal Officer of the said programme, he was required to do

multifarious jobs including supervision of bandobast, organising

the programme, inviting actors for the said programme and that

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he was busy for a month prior to 12 th November 2006 in

organising the said programme; that in the evening of 11 th

November 2006, there was a dress rehearsal which was attended

by senior officers from their department, i.e. CP, Jt. CP, Addl. CP,

etc; that on 11th November 2006, he was informed by his RTPC

(Radio Telephonic Police Constable) that one Ramnarayan Gupta

was killed in a police operation at Nana Nani Park; that the

operation was carried out by police officers from Versova Police

Station and D.N. Nagar Police Station.

154.1 In his cross-examination, the said witness has stated

that as far as he recollects, the RTPC might have informed him

between 21:00 to 21:30 hrs. of the incident and that he was not

aware as to whether by that time, news was flashed on TV; and

that he could not visit Nana Nani Park on 11 th November 2006 as

he was busy in bandobast and in preparations for 'Umang'

programme. He has further stated that in ordinary course, he

was required to visit the place where firing had taken place. He

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has further stated in his cross that the report in respect of police

firing was required to be submitted to the Addl. Chief Secretary,

(Home), DGP, CP, NHRC, SHRC and to the Collector and that it

was correct to say that in respect of police firing within his

jurisdiction, he was supposed to submit reports to the said

authorities. He has further stated that he submitted reports to the

aforesaid authorities in respect of police firing at Nana Nani Park.

When questioned whether the report filed by him before the

authorities was true and correct, PW61 answered that "the report

was submitted on the basis of police station report and FIR and

that the report was correct at that time." He has stated that he

had filed the report, after the report was received from Versova

Police Station, after affixing his signature on it. He has further

stated that at the time of submitting the said report to the said

authorities, he was satisfied that there was a genuine encounter at

Nana Nani Park. He has further stated that when he was DCP,

Zone-IX, Ramprasad (PW1), brother of the deceased, did not

approach him nor did he file any complaint with him.

S.Q. Pathan / N.S. Chitnis 407/867

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155 Thus, it is evident from the evidence of PW61 and

PW63, that they had received no prior information as alleged to

have been given by A9. Infact, it is pertinent to note, that there is

no suggestion/question put to the said witnesses, that A9 had

informed them of the information so received by him.

PW78 - Bipin Mangalaprasad Singh Bihari:

156 PW78, Addl. CP, Western Region, Mumbai, who

according to the prosecution, was responsible for formation of a

squad under OA1, has denied that any such squad was formed at

his behest. PW78 has also denied having being informed of any

information, as allegedly given by A9, to his superiors. He has

infact categorically denied giving any directions or instructions

prior to the incident to any officer. He has further stated that he

learnt about the incident on 11 th November 2006 from his

wireless operator. Infact, no suggestion has been given by the

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appellants-accused to this witness during the cross-examination,

that A9 had informed him about the secret information.

PW87 - Ajendrasingh Sadansingh Thakur:-

157 Similarly, PW87-Ajendrasingh Thakur, Sr. P.I. of D.N.

Nagar Police Station, has categorically in his evidence stated that

he was kept in the dark about the joint operation of the D.N.

Nagar Police Station and Versova Police Station. It is pertinent to

note that there was no cross examination on this issue.

158 The aforesaid evidence clearly shows that the claim of

A9 that he had informed the superiors about the information so

received and that he had sought permission from them to conduct

the special operation on the basis of the secret information, is

belied by the evidence of all the witnesses i.e., A9's superior

officers, as stated aforesaid. The evidence infact shows that no

superior officers were either informed or they were aware nor

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any permission was taken to conduct the secret operation as

alleged by A9. Even PW78-Addl. CP, Western Region, Mumbai,

for reasons best known to him, has also denied being informed of

the secret operation.

e. False station diary entries and documents

159 The aforesaid evidence is further corroborated by the

false station diary entry created to cover up the fake encounter. In

this context, it would be apposite to reproduce the following

entries which would show the falsity or creation of evidence by

the appellants-accused to cover up the fake encounter:-

(i) The station diary entry at the Versova Police Station at

18:05 hrs (Exh.884-A) reads thus:

fnukad ?kVuk 11@11@2006 'ksjk

18-05 ¼33½ l-iks-fu- ljrkis] iks- mifu gjiqMs xksiuh; dkekdjrk o iks-fu- dz- 26645 gs ek- vfrfjDr jokuk

S.Q. Pathan / N.S. Chitnis 410/867

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iksyhl vk;qDr if'pe izk- foHkkx ;kaps vkns'kkus xksiuh; dkekdjrk nk-ukS-uxj iks- Bk.ks ;sFks jokuk >kys-

English translation of the above station diary entry reads thus :

Date Incident Date 11.11.2006 Remark

18.05 hrs As per the order of the Additional Proceeded for confidential Police Commissioner, Western Region, work API Sartape, P.S.I. Harpude and P.C. No. 26645 proceeded to the D.N. Nagar Police Station for confidential work.

(Nitin Sartape is A11, Ganesh Harpude is A17 and

Pandurang Kokam (A19) is P.C. No. 26645)

(ii) The station diary entry at the D.N. Nagar Police

Station at 18:55 hrs (Exh. - 669A), is made by A15. The same

reads thus:

fnukad 11@11@2006 ?kVuk 'ksjk

18%55 ¼25½ Ikks-fu- lw;Zoa'kh] liks-fu ikykaMs- jokuk S.Q. Pathan / N.S. Chitnis 411/867

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ljo.kdj- iks-fu-ikrkMs vkf.k vaeynkj R;kpizek.ks olksZok iksyhl Bk.;kps liksfu ljrkis] iks- mifu gkjiqMs iks-uk-

dz- 26645 gs ckrehnkjklg ukuk ukuh ikdZ toG] tqgw olksZok fyad jksM] pkj caxyk] va/ksjh ¼i½] eaqcbZ;sFks feGkysY;k ekfgrhph 'kgkfu'kk dj.;klkBh vkf.k vusd xaHkhj xqUg;kr ikfgts vlysyk R;kapizek.ks Qjkj vlysY;k vkjksihl vVd dj.;k djhrk jokuk >kys-

English Translation of the above station diary entry reads thus:

Date 11/11/2006 Incident Remark 18:55 (25) As per the (information) received, Proceeded Hrs. P.I- Suryawanshi, API-Palande, Sarvankar, PSI- Patade and Police Personnel so also API-Sartape, PSI-Harpude and P.N, Buckle No. 26645 attached to Versova Police Station alongwith the informer proceeded to the place near Nana Nani Park at Juhu Versova Link Road, Four Bungalows, Andheri (W), Mumbai to confirm the information received and to arrest the accused wanted in serious offences.

(Pradeep Suryawanshi @ Nana is A9, Dilip Palande is A15,

Arvind Sarvankar is A22, Anand Patade is A18, Nitin Sartape is

S.Q. Pathan / N.S. Chitnis 412/867

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A11, Ganesh Harpude is A17 and Pandurang Kokam-P.C. No.

26645 is A19).

160 The station diary entry of return of the staff to D.N.

Nagar Police Station (Exh.-670) at 3:35 hrs. on 12th November

2006, is consistent with C.R. No.302/2006. The author of the

said entry is A15.

fnukad ?kVuk 'ksjk

03%35 ¼3½ LkanHkZ Bk.ks nSuafnuh dzekad 25@06] iksyhl fujh{kd fnukad 11-11-2006 vUo;s iks- fu- lw;Zoa'kh lw;Zoa'kh] lgk¸;d l- iks- fu- ikykaMs] ljoudj] iks- mifu- iksyhl fujh{kd ikykaMs] ikrkMs vkf.k vaeynkj vls feGkysY;k ljoudj] iksyhl mi ekfgrhph 'kgkfu'kk o xaHkhj xqUg;kr ikfgts fujh{kd ikrkMs o vkjksihl vVd dj.;kdkeh ukuk ukuh ikdZ vaeynkj ukuk ukuh toG tqgw olksZok fyad jksM] lkr caxyk] ikdZ] lkr caxyk] va/ksjh ¼i½] ;sFks jokuk >kys gksrs rs ijr va/ksjh ¼i½] ;sFkwu vkys o vls fuosnu djrkr dh R;kauk feGkysY;k ekfgrhph 'kgkfu'kk fn- 11-11-2006 jksth iksyhl fujh{kd d:u ijr o dqfo[;kr iznhi lw;Zoa'kh ;kauk [kkl [kc&;kekQZr [kcj xaqM jkeukjk;.k feGkyh dh NksVk jktu VksGhpk [kqu] njksMk] fo'oukFk xqIrk] o;

tcjh pksjh vkf.k [kaM.kh lkj[;k vusd xaHkhj 38 gk iksyhl pdedhr xqUg;kr ikfgts vlysyk vkf.k Qjkjh t[keh gksÅu

S.Q. Pathan / N.S. Chitnis 413/867

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vlysyk vkjksih ukes jkeukjk;.k mQZ dqij :X.kky;kr nk[ky y[kuHkS;k fo'oukFk xqIrk] o; 38 gk ukuh gks.ksiwohZ e;r- lrr ikdZ] lkr caxyk] va/ksjh ¼i½] eqacbZ ;sFks ¼3½ R;kps lkFkhnkjkauk HksB.;klkBh ;s.kkj vkgs-

lnjph [kcj rkRdkG ofj"Bkauk dGowu R;kaP;k ekxZn'kZuij lqpusuqlkj ojlksok iksfyl Bk.;kps l-iks-fu- ljrkis] iksfyl mifujh{kd gkjiqMs o iks-fu- 26645 ;kaph enr ?ksÅu iks-fu- lw;Zoa'kh] liks-fu ikykaMs] ljo.kdj- iks-mifu-ikrkMs iksgk-18839] 26645] iks-'kh- 10502 vls loZ vf/kdkjh o vaeynkj oj ueqn fBdk.kh jokuk gksÅu nksu xV r;kj d:u ukuk ukuh ikdZ toG osxosxG;k fBdk.kh 19-10 ok- nck /k:u clys- lqekjs 20-10 ok- ukuk ukuh ikdZ toG ,dk fj{kkrwu uewn Qjkjh o ikfgts vlysyk vkjksih ukes jkeukjk;.k mQZ y[kuHkS;k fo'oukFk xqIrk mrjyk- rsOgk R;kl ckrehnkjkus vksG[kwu b'kkjk dsyk vlrk uewn vf/kdkjh o vaeynkj gs R;kal vVd dj.;kdkeh iq<s ljlkoys vlrk uewn vkjksihus R;kP;k toGhy dejsyk [kksoysys fjOgkWYoj dk<wu jks[kys] rsOgk ueqn vf/kdkjh o vaeynkj ;kauh R;kal iksyhl vlY;kps lkaxwu Lok/khu gks.;kl lkafxrys vlrk ueqn vkjksihus xksGhckj dj.;kl lq:okr dsyh-

R;kus iksyhlkapk b'kkjk u tqekurk ijr xksGhckj dsyk vlrk] iksfylkauh Loj{k.kkFkZ o tursP;k iknpk&;kaP;k laj{k.kkFkZ R;kP;koj xksGhckj dsyk vlrk] rks xaHkhj t[keh >kyk-

R;kosGh iksyhl o tursP;k laj{k.kkFkZ

S.Q. Pathan / N.S. Chitnis 414/867

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iksfylkauh xksGhckj dsyk- R;kr iksyhl

fufj{kd izfni lq;Zoa'kh ;kauh nksu xksG;k] l- lrr iks-fu-ljo.kdj] ikykaMs ;kauh izR;sdh ,d ¼3½ xksGh R;kaP;k lOghZl fjOgkWYoj e/kqu Qk;j dsyh o l-iks-fu- ljrkis ;kauh vkiY;k fiLry e/kqu ,d xksGh Qk;j dsyh-

lnj t[keh vkjksihl dqij :X.kky;kr vkS"k/kksipkjk djhrk usys vlrk] rks nk[ky gks.ks iwohZp e;r >kY;kps rsFkhy MkWDVjkauk ?kks"khr dsys-

lnj e;r vkjksih blekP;k e`rnsgkpk lfoLrj iapukek dsyk vlrk ,dw.k lkr cqysV t[kek 'kjhjkoj vk<GY;k-

rlsp ?kVukLFkGkP;k iapukek dsyk vlrk ?kVukLFkGko:u lnj vkjksih blekps fjOgkWYoj tIr dj.;kr vkys-

lnj ?kVusckcr olksZok iks-Bk.ks ;sFks xq-

j-dz-302@06 dye 353] 307 Hkk-n-fo-

lg dye 3] 25] 27 Hkk-g-dk vUo;s xqUgk uksanfo.;kr vkyk-

rlsp olksZok iks-Bk.ks ;sFks iks-fu-

lq;Zoa'kh ;kauh Qk;j dsysY;k nksu xksG;kapk fjdkE;k iqxG;k l-iks-fu- ikaykaMs o ljo.kdj ;kauh Qk;j dsysyh izR;sdh ,d xksGhph iqxGh iapukekUo;s rkC;kr ?ks.;kr vkyh-

English Translation of the above station diary entry reads

thus:

S.Q. Pathan / N.S. Chitnis 415/867

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03.35 hrs As per Reference Station Diary Number Police Inspector -

25/06 dated 11.11.2006, P.I. Suryawanshi, Suryawanshi, Assistant A.P.I. Palande, Sarvankar, P.S.I. Patade and Police Inspector - constables who had proceeded to the place Palande, Sarvankar, near Nana Nani Park, Juhu Versova Link Police Sub Inspector - Road, Saat Bungalow, Andheri (W) for Patade and Police ascertaining the information which they had Personnel, thus all, have received and for arresting the Accused returned from Nana wanted in a serious offence, have returned Nani Park, Seven and are reporting that on the date Bungalows, Andheri 11.11.2006, Police Inspector Pradeep after verifying and Suryawanshi received information from ascertaining the special informer that Ramnarayan @ information that they Lakhanbhaiya Vishwanath Gupta, age : 38 had received and years, the absconding Accused of Chhota notorious gangster Rajan Gang, wanted in many serious Ramnarayan offences like murder, dacoity, robbery and Vishwanath Gupta, extortion, was going to come at Nana Nani age : 38 years has been Park, Saat Bungalow, Andheri (W), Mumbai injured in firing and is to meet his accomplices. declared dead before He immediately gave the said admission in Cooper information to the Superior Officer and as Hospital. per his guidance and instructions, he, with the help of A.P.I. Sartape, Police Sub-

Inspector Harpude and P.N. B.No. 26645, and P.I. Suryawanshi, A.P.I. Palande, Sarvankar, P.S.I. Patade, P.H.C. B. No. 18839, 26645, P.C. B.No.10502, thus all the Officers and constables proceeded to the above-mentioned place, they formed two groups and lied in wait at different places

S.Q. Pathan / N.S. Chitnis 416/867

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near Nana Nani Park at 19.10 hrs. At around 20.10 hrs, the above-mentioned absconded and wanted Accused by name Ramnarayan @ Lakhanbhaiyya Vishwanath Gupta got down from an autorikshaw near Nana Nani Park. Thereupon, the aforesaid informer identified him and gave a signal.

Thereupon, when the above-mentioned Officers and Constables proceeded ahead to arrest him, the said Accused took out a revolver with him, tucked to his waist and pointed it. At that time, the above-

mentioned Officers and Constables told him that they were the Police personnel and asked him to surrender. Thereupon, the said Accused started firing. He, by disregarding the warning given by the Police, again started firing and therefore, when the Police fired at him in self defence and for the safety of the passers by, he got grievously injured. At that time, the Police personnel fired in self defence and for the safety of the passers by in which the Police Inspector Pradeep Suryawanshi fired two bullets and A.P.I. Sarvankar, Palande fired one bullet each from their service revolvers and A.P.I. Sartape fired one bullet from his pistol.

When the said injured Accused was taken to Cooper Hospital for medical treatment, the Doctor there declared him dead before admission.

On recording detailed panchnama in

S.Q. Pathan / N.S. Chitnis 417/867

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respect of the dead body of the deceased Accused, total seven bullet injuries were found on his dead body.

On recording panchnama in respect of the place of incident, the revolver of the said Accused person was seized after the incident.

An offence has been registered vide C.R. No.302/06 under sections 353, 307 of the IPC r/w Sections 3, 25, 24 of the Indian Arms Act with Versova Police Station.

Further, empty cartridges of two bullets fired by P.I. Suryawanshi and the cartridges of one bullet each fired by A.P.I. Palande and Sarvankar have been taken into possession under panchnama in Versova Police Station.

(emphasis supplied)

(Names disclosed in the station diary entry are of Pradeep

Suryawanshi @ Nana (A9), Dilip Palande (A15), Arvind

Sarvankar (A22), Anand Patade (A18), Nitin Sartape (A11),

Ganesh Harpude (A17) and Pandurang Kokam-P.C. No. 26645

(A19), Prakash Kadam-PHC B.No. 18839 (A16) and Devidas

Gangaram Hari Sakpal- PC B.No.10502 (A13).

S.Q. Pathan / N.S. Chitnis 418/867

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161 The said entries were made by A15. A15 has not

disputed C.R. No.302/2006 or firing at the deceased. The same

will be further evident from the evidence on record i.e.

manipulation of records, to show that it was a genuine encounter.

f. Revolver and railway tickets planted on the deceased

162 According to the prosecution, the appellants/accused,

planted a revolver to cover up the fake encounter. He submitted

that after the alleged encounter, Mr. Sawant, a fingerprint expert

was summoned to examine the fingerprints on the revolver from

which Ramnarayan allegedly fired, however, no fingerprints were

found on the same. The learned counsel for the appellants refuted

the said submission. They submitted that merely because no

fingerprints were found on the weapon, would not, by itself,

bolster the prosecution case that Ramnarayan did not fire from

the same. It was submitted that there was no reason for the police

to falsely come with a theory of Ramnarayan firing at them, when

infact the circumstances show that it was genuine encounter.

S.Q. Pathan / N.S. Chitnis 419/867

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163 The evidence on record shows that no fingerprints

were found on the said revolver. The same has also not been

seriously disputed by the appellants/accused. The said evidence is

further corroborated by the evidence of PW86. It appears that

handwash of both the hands of the deceased (Ramnarayan) was

taken at the time when he was at Cooper Hospital, however, the

results were inconclusive. According to the prosecution, the same

fortifies their case that the alleged weapon purportedly used by

the deceased was never fired by him and was infact planted. If the

said evidence is accepted, the defence theory that the deceased

fired at the appellants/accused and in response, they fired at the

deceased, will have to be rejected outright. It is clear from Exh.-

284 that no fingerprints were found on the weapon allegedly

used by the deceased i.e. revolver (Article 49) and the CA report

(Exh.-290) also reveals that result of the handwash of the

deceased was inconclusive. Thus, there is substance in the

S.Q. Pathan / N.S. Chitnis 420/867

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prosecution case that no bullets were fired as alleged by the

appellants/accused and that the weapon appears to have been

planted on the deceased.

164 It is the prosecution case that not only was the

weapon planted on the deceased to show that he fired at the

appellants/accused, as a result of which, they were constrained to

fire at him, but the police also planted railway tickets on the

person of the deceased, to show that he had travelled from

Sanpada to Masjid/Mulund/Bandra (via Wadala) and from

Bombay Central to Jogeshwari. There appears to be substance

with respect to planting of railway tickets on the deceased, having

regard to the following circumstances; (i) It is pertinent to note

that Dr. Sunil Shinde (PW11) of Cooper Hospital had made

necessary entries with respect to the articles found in the

possession of the deceased. Exh. 174A i.e the MLC register reads

thus:

S.Q. Pathan / N.S. Chitnis 421/867

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No. Date and Hour of Name Caste Age Sex Brought by Occup- Resid-ence month of Admissio ation admission n 22278 5.11.06/ 9:00 pm Ramnarayan 38 Male PC 42521/ Vishwanath Yrs. 970043/ Gupta Versova Property

Cash 100X9 = 900 10X1 = 10 5X1 = 2 2X1 = 2 2X1 = 2 -------- 919/- Wallet X I Telephone Diary

If injury, nature, causes of injury Initials of the Remarks Medical Officer on Duty Pt. brought dead to casualty by PC 970043, Versova, alleged h/o bullet injuries over body at Nanipark, Versova at 8.15 p.m. today

C/B Pulse - absent, Respiration - absent Ht - absent Pupils - dilated fixed NRTL

1. Circular puncture wound 1 cm forehead fresh.

S.Q. Pathan / N.S. Chitnis 422/867

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2. Circular puncture wound 1 cm Rt. ant. Chest 4th ICS above nipple.

3. Circular puncture wound 1 cm 2nd ICS Lt. ant. chest, fresh.

4. Circular puncture wound 1 cm Lt. 4th ICS anteriorly fresh.

5. Circular punctured exit wound Rt. 3rd ICS posteriorly fresh 1 cm.

6. Circular punctured exit wound posteriorly 1 cm fresh Lt. body of scapula.

165 The description of the articles found on the person of

the deceased as stated in the MLC register were handed over to

PW51-Anil More. In the said description, there is no mention of

any railway ticket being found on the person of the deceased.

166 Similarly, in the station diary entry (Exh.-285A and

Exh.-12), there is no mention of any railway ticket. The said

station diary entry was made by PSI Vijay Jadhav on the

S.Q. Pathan / N.S. Chitnis 423/867

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directions of PW39-PI Sankhe. Infact, PW39 in his deposition,

has stated that the station diary entry i.e Exh.- 285A was made

after the muddemal entry (Exh.-299A) in Muddemal Register was

effected. Exh.- 285A and Exh.-299A read thus ;

Exhibit- 285A

fnukad 12@11@06 ?kVuk 'ksjk

02-00 ¼1½ lanHkZ Bk.ks nSuafnuh dzekad] 38@06 o xq- dz- 302@06 fnukad 11-11-06 vUo;s jokuk 302@06

>kysys iks-fu- la[ks] brj vf/kdkjh o vaeynkj dye 307] iksyhl Bk.;kl ;sÅu fuosnu djrkr dh xq- j- 353] dz- 302@06 dye 307] 353] Hkknfolg 3] Hkknfopk 25] 27 Hkk-g-dk- ;k xqUg;krhy ?kVukLFkGkpk ?kVukLFkG o nksu iapkale{k iapukek dj.;kr vkyk R;kpizek.ks bUDosLV ?kVukLFkGkps [kktxh Nk;kfp=dkjk ekQZr Nk;kfp=s iapukek d:u ?ks.;kr vkys- R;kpizek.ks ?kVukLFkGh feGwu ijr vkysY;k oLrw lhycan d:u rkC;kr ?ks.;kr vkY;k-

1- ,d esM bu tiku vls ,dk cktwl rkC;kr dksjysys fjOgkYoj ?ksrysY;k oLrw 2- fjOgkYoj e/khy nksu ftoar dkMrqls R;koj KF32S $ WL rGkl gWej ekdZ vlysys-

3- fjOgkYoj e/khy nksu fjdkeh firGh iaqxG;k ;kaP;k rGk'kh KF32S $ WL vls ekfdZax vlwu rGk'kh gWej ekdZ vkgs-

4- ?kVukLFkGh iMysyh ,d fjdkeh firGh iaqxGh R;koj KF94 9mm 22 vls ekfdZax-

S.Q. Pathan / N.S. Chitnis 424/867

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5- jDr Hkjysyh ,d ckVyh- 6- ekrh fefJr jDr vlysyh ,d ckVyh- 7- ekrh Hkjysyh ,d ckVyh- bUDosLV

R;kpizek.ks lnj xqUg;krhy e;r vkjksih iapukek ukes] jkeukjk;.k mQZ y[kuHkS;k foÜoukFk xqIrk ;kpk e`rnsgkpk bUDosLV iapukek dj.;kr vkyk vlwu lnj e`rnsgkP;k 'kjhjkoj [kkyhy izek.ks t[kek gksR;k- t[kek 1- dikGkoj e/;Hkkxh v/kkZ ls-eh-O;klkph [kksy t[ke-

2- mtO;k dkukP;k ikGhP;k vkrhy Hkkxkr 1@2 ls-eh- O;klkph t[ke-

3- mtO;k LrukxzgkP;k oj 2 1@2Þ varjkoj v/;kZ ls-eh- O;klkph t[ke-

4- MkO;k LrukxzgkP;k oj frjI;k cktwl NkrhP;k e/; Hkkxkiklwu 2Þ varjkoj v/;kZ ls-eh- O;klkph t[ke-

5- lnj t[kesP;k oj 1Þ varjkoj v/;kZ ls-eh- t[ke-

6- ikBhl mtO;k cktwl [kqC;ktoG 1 ls-eh- O;klkph t[ke-

7- ikBhl MkO;k cktwP;k [kqC;ktoG 1 ls-eh- O;klkph t[ke- rkC;kr lnj e`rnsgkps [kktxh Nk;kfp=dkjk dMwu ?ksrysY;k oLrw fofgr dksukrwu Nk;kfp=s dk<yh- R;kpizek.k e`rnsgkps diMs o R;kP;k iWUVP;k f[k';kr feGkysys ikWdsV] R;krhy jks[k :-920-75 iSls o VsfyQksu Mk;jh rkC;kr ?ks.;kr vkyh rlsp LVsªpj ojhy jDr nksu ckVY;ke/;s o olksZok 1 eksckbZy e/;s lkBysY;k jDrkph ,d ckVyh uequk Eg.kwu ?ks.;kr eqn~nseky dz-

S.Q. Pathan / N.S. Chitnis 425/867

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vkY;k- 148@06

oj uewn izek.ks RkkC;kr ?ks.;kr vkysY;k oLrwaph vUo;s uksan uksan vk;ihlh eqn~nseky uksan dz-148@06 izek.ks ?ks.;kr vkysyh vkgs-

lnj xqUg;krhy ?kVuk LFkGkoj feGwu vkysY;k fjOgkWyojph vaxqyheqnzk rK Jh- lkoar ;kaP;kdMwu rikl.kh dj.;kr vkyh vlwu R;koj Bls feGwu vie`R;w dz-

vkys ukghr- 55@06 lnj vie`R;w lanHkkZr vie`R;w uksan dz-55@06 vUo;s uksan izek.ks uksan ?ks.;kr vkyh vlwu vkjksihaP;k okjlkapk 'kks/k ?ksÅu R;kauk dGfo.;kph rtfot Bsoysyh vkgs- lnjpk e`rnsg ts-ts-:X.kky; ;sFks ikBfo.;kph rtoht Bsoysyh vkgs-

English Translation of Exhibit- 285A reads thus:

Date 12/11/2006 Incident Remarks 02:00 (5) Police Inspector Sankhe, other Officers and Returned after

constabulary Police Staff, who had proceeded as having drawn per the Reference Station Diary Entry Nos. panchnama of the 38/06 and 302/06, dated 11.11.2006, have Place of the returned to the Police Station and state that Incident and the panchnama of the Place of the Incident Inquest concerned in the Offence bearing C.R. No. panchnama 302/2006, under Sections 307, 353 of the IPC concerned in the read with Sections 3, 25, 27 of the Indian Arms Offence bearing C. Act has been drawn in the presence of two R. No. 302/2006, Panch Witnesses and that the articles that were under Sections found at the Place of the Incident have been 307, 353 of the sealed and have been taken into possession as IPC. under:

S.Q. Pathan / N.S. Chitnis 426/867

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1) One Revolver having engraved thereon as "Made in Japan" on its one side. Articles taken into possession.

2) Two live cartridges from the Revolver having thereon a marking KF32S $ WL and a "Hammer" mark at its bottom.

3) Two empty brass cartridges from the Revolver having a marking viz. KF32S $ WL and a "Hammer" mark at its bottom.

4) One empty brass cartridge having a marking viz. KF94 9mm 22 thereon, found lying at the place of the incident

5) One bottle containing blood.

6) One bottle containing blood mixed soil.

7) One bottle containing soil.

Similarly, Inquest panchnama of the dead body of the deceased Accused by name Ramnarayan alias Lakhanbhaiya Vishwanath Gupta, involved in the said offence, has been drawn and following injuries have been noticed on the body of said deceased.

1) A deep injury of the size of half cm. diameter at the centre of the forehead. 2) An injury of the size of half cm. diameter at the internal portion of the right earlobe. 3) An injury of the size of half cm. diameter Injuries at the distance of 2 ½" above the right

S.Q. Pathan / N.S. Chitnis 427/867

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nipple. 4) An injury of the size of half cm. diameter at the distance of 2" away from the centre of the chest and by the side of and above the left nipple. 5) An injury of the size of half cm. at a distance of 1" above the said injury.

6) An injury of the size of 1 cm. diameter on

the back, on right side near the shoulder-

joint.

7) An injury of the size of 1 cm. diameter on the back, on left side near the shoulder-

joint.

Photographs of the said dead body, from various angles, have been got clicked from a private photographer. Similarly, the clothes of the said deceased and the wallet, the cash amount of Rs.920.75 and a telephone diary found therein in his pant-pocket have been taken into possession. Further, the blood spilt on the stretcher has been collected in two bottles and the blood spilt and accumulated in Versova-1 Mobile Van has been collected in one bottle as a sample.

(emphasis supplied)

The entry about the muddemal articles that have been taken into possession as mentioned above has been made in the I.P.C. Muddemal

S.Q. Pathan / N.S. Chitnis 428/867

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Register at Entry No. 148/2006.

The revolver that was found at the place of the incident concerned in the said offence has been got examined from the Finger Print Expert by name Shri Sawant, however, no finger-print has been found thereon.

An entry in respect of the said accidental death has been made as per the Accidental Death Entry No. 55/06 and arrangement has been made to trace the relatives of the said Accused and to intimate them. Further, arrangement has been made to send the said dead body to J.J. Hospital.

EXHIBIT 299A

[kVyk TkIrhp EkkyeRrk ¼TksFks foYgsokVh laca/kh 'ksjk dzekad k EkkyeRrk fnukad Bsoyh r½s vfHkj{kk LFkku 6 1 2 3 4 5

jfookj fnukad 148@ xqUgk Bk.ks 12@11@06 lsQ Tkk-dz- 6523@06 fn- 06 uksan nSuanhuh v½ ?kVukLFkGh feGwu LVksvj 13@11@2006 vUo;s iks-fu- dzekad uksan vkysY;k oLwrw lh-,-djhrk ikBfoyk- la[ks 302@ dzekd [kkyhyizek.ks

S.Q. Pathan / N.S. Chitnis 429/867

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iks-g- 06] @06 1½ ,d "MADE IN dz- dye fnukad JAPAN" vls ,d 2230 307] @ @ cktwl dksjysys fjoksOgj 8 353] 2½ fjOgkyOgj e/khy Hkknoh nksu ftoar dkMrqls lg R;koj KF- 325 $ dye WL o rGkl gWej 3]25] ekdZ vlysys 27] 3½ fjOgkyOgj e/khy Hkkgdk nksu fjdkes firGh iqxG;k R;kaP;k eqn~nsek rGk'kh KF- 325 $ yo WL vls ekfdZx vgoky vlwu rGk'kh gWej vk.kyk ekdZ vkgs- 4½ ?kVukLFkGh iMysyh ,d fjdkeh firGh iqxGh R;koj KF-94 TMM- 22 vls ekfdZx 5½ jDr Hkjysyh ,d ckVyh- 6½ ekrh feJhr jDr Hkjysyh ,d ckVyh 7½ ekrh Hkjysyh ,d ckVyh tkod dzekad 157@09 c½ bUDosLV fn- 19@12@09 iapukE;ke/;s lnjpk eqn~nseky ek- rkC;kr ?ksrysY;k oLrw iksyhl mi vk;qDr fo-

S.Q. Pathan / N.S. Chitnis 430/867

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[kkyhyizek.ks riklh iFkd ef/ky Jh- pkGds ;kaps rkC;kr fn- 1½ LVsªpjojhy jDr 19@12@09 jksth Hkjysyh ckVyh- ns.;kr vkyk- Bk.ks 2½ LVsªpjojhy jDr nSufnuh dzekad 20@09 Hkjysyh nqljh ckVyh 3½ djM;k jaxkpk Qqy 'kVZ 4½ djM;k jaxkph Qqy iWUV EX 5½ lQsn lWMkss cfu;ku 299 A 6½ fuGlj jaxkPkk tWaxk 7½ czkmu jaxkPkh cqV tksM

8½ czkmu jaxkph ilZ R;ke/;s 100: 9 uksVk] 10 :- ,d uksV] 5 :- ,d dkWbZu] lnjpk eqn~nseky tk-zdz- 2 :- ps nksu dkWbZu] 8193@olksZok@09 25 iS'kkaph lkr fn-19@12@09 vUo;s uk.kh] ,dw.k 920-75 ek- iksyhl mi vk;qDr o ,d VsyhQksu fo- riklh iFkd ef/ky Mk;jh] nksu jsYos Jh- pkGds ;kaps frdhV rkC;kr ns.;kr vkyk- 9½ olksZok ou eksckbZy e/;s lkaMysys jDr Hkjysyh ckVyh-

S.Q. Pathan / N.S. Chitnis 431/867

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English translation of Exhibit - 299A reads thus;

Case No. Date of Muddemal Place Remarks Seizure where regarding Mudde disposal mal is kept 1 2 3 4 5 6 148/06 Crime Station Sunday, the Date Safe As per letter P.I. Reg.No. Diary 12/11/06 stores bearing Sankhe 302/06, Entry outward P.C.No. registere No. A) Articles found at No.6523/06 22308 d --/06 the place of incident dated under Date : are as under : 13.11.2006, sections --/--/---- muddemal is 307, 353 Brought 1) One Revolver sent for C.A. of the muddem having engraved IPC r/w al thereon as 'Dankam

Sections articles Pad Shranchand' at its 3,25,27 and one side, of the report.

Indian 2) Two live cartridges Arms from the revolver Act. having the marking viz. '(unintelligible) 325 + (unintelligible)' and having hammer mark at its bottom.

3) Two empty brass cartridges from the revolver having the marking viz.

S.Q. Pathan / N.S. Chitnis 432/867

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'(unintelligible) 325 + (unintelligible)' and having a hammer mark at its bottom. As per outward No. 157/09 4) One empty brass dated cartridge lying at the 19.12.2009, place of incident the said having a marking viz. muddemal is '(unintelligible)94 handed over in (Unintelligible) 22' the possession thereon, of Shri Chalke from the Sp. 5) One bottle Investigation containing blood Team of the 6) One bottle Deputy containing blood Commissioner mixed soil of Police, on 7) One bottle the date containing soil. 19.12.09

B) Articles taken in to Station Diary possession under No. 20/09 Inquest panchnama. 1) Bottle containing As per outward blood from stretcher No. 157/09 2) Another bottle dated containing blood 19.12.2009, EXHIBI from stretcher the said T 3) Grey coloured full muddemal is 299-A sleeves shirt handed over in 4) Grey coloured full the possession pant of Shri Chalke

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5) White 'SANDO' from the Sp. banian Investigation 6) Bluish coloured Team of the underwear Deputy 7) A pair of Brown Commissioner coloured shoes of Police. 8) Brown coloured purse containing 9 currency notes of the denomination of Rs.100/-, one currency note of the denomination of Rs.10/-, one coin of the denomination of Rs.5/-, 2 coins of the denomination of Rs.2/-, 7 coins of the denomination of paise 25/-, Total amount Rs.919/-, one telephone diary, two railway tickets. 9) bottle containing blood spilled in and collected from Versova one mobile van.

S.Q. Pathan / N.S. Chitnis 434/867

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(i) The aforesaid discrepancy in Exhibits 285A and

299A would show that someone had planted the railway ticket

receipt in the Muddemal Register, since the station diary entry

Exh.-285 did not mention the railway ticket.

(iii) Also in the forwarding letter dated 13 th

November 2006 of Versova Police Station to FSL in respect of

articles (Exh.-294 and 294A), there is no mention of any railway

ticket.

g. Pool of blood not proportionate to injuries

167 With respect to pool of blood of 1 foot diameter

being found at the spot, it is the prosecution case that the same

was highly impossible and improbable, considering the number of

wounds sustained by the deceased i.e. one on his forehead, one

on his right finger and two on the chest. Admittedly, as seen from

the documents/evidence on record, the pool of blood was only 1

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foot diameter. Considering the nature and place of injuries

sustained i.e. on the temple and the left atrium of heart and aorta

(injury Nos.1 and 4 in the PM report), it is highly improbable

that one would find only a 1 feet diameter pool of blood.

168 In this context, it would be necessary to place on

record the evidence of PW29-Dr. Gajanan Chavan, the doctor

who conducted the post-mortem on the deceased (Ramnarayan).

PW29 in his evidence has stated that he conducted the post-

mortem on 12th November 2006, from 00.30 hrs to 1:30 hrs. The

PM Report is at Exh.-237. Column 17 of the PM Report reveals

the following injuries:

a) Firearm entry wound over centre of forehead of size 0.8 cm circular inverted margins with 0.1 cm abrasion collar situated 5 cm above nasion (joining portion of upper portion of nose and forehead) and 15 cm from right ear lobule. No evidence of tattooing, singeing, burning, blackening seen.

On dissection, bullet passed through skin, subcutaneous tissue, frontal bone with punched in appearance directed backwards and to right side and passed through right frontal lobe and lodged in right temporal lobe. One deformed bullet was retrieved from there. All the track was lacerated and haemorrhagic

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b) Firearm entry wound over right ear pinna of size 0.8 cm diameter, nearly circular inverted irregular margins with abrasion collar at places. No evidence of tattooing, singeing. burning, blackening seen. On dissection, bullet passed through skin, cartilage of ear, temporal bone with punched in 15 appearance, temporal lobe right and lodged in right occipital lobe. One deformed bullet was retrieved from there. All the track was lacerated and haemorrhagic.

c) Firearm entry wound over right side of chest anteriorly of size 0.8 cm circular inverted margins with 0.1 cm abrasion collar situated 10 cm from midline and 7 cm below clavicle and 6 cm above nipple. No evidence of tattooing, singeing, burning, blackening seen. On dissection, bullet passed through skin, subcutaneous tissue, third intercostal muscle through middle and lower lobes of right lung and passed out through third intercostal space posteriorly over back through firearm exit wound of size 1 cm diameter everted margins situated 135 m below shoulder and 9 cm from midline. All the track was lacerated and haemorrhagic.

d) Firearm entry wound over left anterior chest of size 0.7 cm diameter circular inverted margins with 1 cm abrasion collar situated 4 cm from midline and 8 cm below left clavicle. No evidence of tattooing, singeing, burning, blackening seen. On dissection, bullet passed backwards through skin, subcutaneous tissue, third intercostal muscles through left atrium in anterio posterior direction, descending aorta and lodged in paraspinal muscles of left side. One intact bullet retrieved from there. All the track was lacerated and haemorrhagic.

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e) Firearm entry wound over left side of chest of size

0.8 cm diameter circular inverted margins with 0.1 cm abrasion collar situated 5 cm from midline and 10 cm below clavicle. No evidence of tattooing, singeing, burning, blackening seen. On dissection, bullet passed through skin, subcutaneous tissue, fourth intercostal muscles through lower lobes of left hung directed posteriorly and passed out through fourth intercostal muscles of back through firearm exit wound situated over left back of size 1 cm diameter everted margins situated 14.5 cm from midline and 15 cm below left shoulder. All the track was lacerated and haemorrhagic.

169 In the PM report, the cause of death is stated to be

"Haemorrhage and Shock due to multiple firearm injuries. (Un-

natural)"

170 PW29 found that 500 CC of blood in each pleural

cavity of thorax; right lung middle and lower lobe were found

lacerated and haemorrhage in the track; left lung lower lobe was

found lacerated and haemorrhage in the track and about 500

CC clotted blood was seen in pericardial cavity. The left atrium

was found to be ruptured. The details of the injuries were stated

on separate sheets. PW29 has also deposed to what was noticed

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by him in detail with respect to internal examination.

170.1 PW29 has stated that all the 5 injuries are individually

and collectively sufficient to cause death of a person in normal

course. He has further deposed that Injury Nos.1, 2 and 4 in

Exh.-237 would cause sudden instantaneous death. He has

further stated that Injury No.4 was relating to left atrium of heart

and aorta would lead to profuse bleeding out of all injuries and

that the other injuries would be bleeding injuries, but less in

intensity than injury No.4. He has further deposed that in case of

Injury Nos.1, 2 and 4, sudden shock would result and being

injuries to vital organs, the person would not be upright and may

collapse.

170.2 Although, the said witness was cross-examined on the

nature of injuries sustained by the deceased, nothing material is

brought on record, so as to disbelieve PW29's testimony.

171 Thus, having regard to the nature of injuries sustained

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by Ramnarayan and the evidence that has come on record, it is

highly improbable that there would be only 1 pool of blood of

around 1 foot diameter. No droplets were also seen, since

deceased was allegedly taken in a vehicle nor any blood stained

clothes of the persons who carried Ramnarayan, seized.

h. Map of Nana Nani Park falsifies the case of a genuine

encounter

172 The map as reproduced herein-above and which is

not disputed by any of the parties, crystalises the two spots where

Group-1 and Group-2 were waiting and the positions taken by

them i.e. one opposite Magnum Building and one at the Trishul

Building end. These are the positions taken by A9 and his team

members as per C.R. No. 302/2006. If from the said two spots as

alleged, the deceased was fired at, it would be highly improbable

and impossible for the deceased to sustain the said wounds. The

ballistic report of PW86-Gautam Ghadge also falsifies the firing

by some of the appellants/accused from a distance of around 40

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feet, as alleged in C.R. No. 302/2006. (A9 is the first informant

of CR No. 302/2006).

173 According to the ballistic report, the firing was done

at a distance of around 2 feet. According to A9, Group-1

consisted of himself, A11, A13, A19, A16 and A18, who were

positioned at Magnum Opus building end. According to A9, he

fired 2 rounds and A11 one round.

174 According to A9, Group-2 consisted of A2, A3, A15,

A17, A20 and A22 and the said group was positioned at the

Trishul Building end. According to A9, A22 and A15 fired from

the said end at the deceased.

175 Between the position of Group-1 and Group-2, there

is a road on which regular traffic moves and the deceased was

across the said road and after being shot at from across the road

(40 feet distance), he fell near an electric pole being KVV

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13/0.61. From the ballistic expert's report and the map relied

upon by A9, it becomes evident that it was highly impossible to

fire at the deceased from the positions as alleged by A9 and by

some of the appellants/accused, more particularly, when there was

a road between them and the deceased, on which, there is usually

heavy regular traffic, without endangering the lives of people on

the road.

176 Although, according to A9 and CR No.302/2006, A9,

A11, A15 and A22 fired at the deceased, it is the prosecution case

that the said claim as far as A11 and A22 are concerned, is false

and the same is evident from the ballistic expert's report i.e.

PW86. During the course of trial, after receipt of the ballistic

report, both, A11 and A22 challenged the taking of weapon from

the Arms Division and also of surrendering one round less after

the alleged encounter. However, the ballistic expert's report

which is at Exh.-658 shows that the empty found on the spot

matched with Article-23 i.e. weapon of A2 and not with the

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weapon of A11. Similarly, the empty produced by A22 matched

with Article-69, weapon of OA1, who was not shown as a

member of the encounter team. The ballistic report and the

evidence of PW86 clearly shows that the bullets were fired by A2

and OA1 from their weapons and not by A11 and A22, as alleged

by A9 (C.R.No.302/2006).

(ix) Distance of Firing

177 According to A9, the complainant in C.R.

No.302/2006, the incident of firing took place at Nana Nani Park

from a distance of about 40 feet across the road. In this

connection A9 has annexed a map to the additional affidavit,

which we have reproduced earlier. Whereas, according to the

ballistic expert's report and evidence, the bullets were fired at a

distance of about 2 meters. The same is borne out by the

evidence of ballistic expert as well as the ballistic report, which is

at Exh.-658 (colly). Thus, the ballistic expert report and the

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evidence reveal that the firing was done at the distance of about 2

meters and not as alleged by A9 in C.R. No.302/2006. We will

deal with the same in detail, while considering the ballistic expert

evidence.

i. Empty found near Magnum Opus

178 As far as empty (Exh.-114) from A2's weapon found

near Magnum Opus Building is concerned, the finding of the said

empty would demolish the theory of the appellants/accused that it

was a genuine encounter. We have already mentioned the accused

who were part of Group-1 and Group-2, as per C.R. No.

302/2006, the earlier part. According to the spot panchnama,

one empty was found near Magnum Opus Building. It appears

from the Ballistic Expert's Report that the empty found on the

spot near Magnum Opus Building fired from A2's weapon i.e.

one 9mm calibre pistol auto, having body No. 15179116, Butt

No. 786, (Exh. 7), belonged to A2 (Exh.-114 is the said empty).

The analysis/report of the ballistic expert shows that Exh.-14 i.e.

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empty was fired from Exh.-7 (weapon). According to C.R No.

302/2006, A2 was at Trishul Building in Group-2, whereas

according to the spot panchnama, the empty was found near

Magnum Opus Building, completely on the opposite side. We

may note, that if A2 was opposite Trishul Building, the empty

should have been found near Trishul Building and not near

Magnum Opus Building. The same further fortifies the falsity of

the FIR lodged by A9.

179 In the Ballistic Report at Exh.-1, Column 5, it is

stated that one brass empty having mark KF 94 9MM 92 was

seized from the place of incident. In the entry at Exh.-656 i.e.

original letter dated 19th December 2009 sent by DCP, SIT,

Mumbai, to the C.A, Mumbai, it is mentioned as KF-9MM-2z-94.

According to the ballistic examination report (Exh.-658), Exh.-7

i.e. A2's weapon and Exh.-14 i.e. one 9mm pistol empty having

indentation on the cap and head stamp markings KF 9mm 2Z 94,

as also in Exh.-251, which is the earlier report dated 18 th August

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2007, the empty is mentioned as KF 9mm 2z 94. Similarly, in

Exh.-299A, the empty in Muddemal Register, it is mentioned as

KF 94 9mm 2Z. The aforesaid documents would go to show that

the empty found at the spot was not replaced with another empty,

whilst sending it to FSL for examination.

j. Defence Witness

180 It is the prosecution case that a false story of

contacting passers-by and Western Control Room for help to

carry the deceased, was also created by the appellants/accused to

support their case of a genuine encounter. According to the

prosecution, there are no eye-witnesses to the alleged encounter,

inasmuch as, no such encounter had taken place as alleged. It is

the prosecution case, that the appellants/accused planted DW1-

Manohar Kulpe as a witness, to show his presence at the spot,

with a view to create evidence. It is submitted by the learned

Spl.P.P that even if the evidence of DW1 is perused, his evidence

lacks credibility, making him an unreliable witness.

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181 DW1-Manohar Kulpe has in fact contradicted the

encounter theory. DW1 was examined by A7 as a defence

witness. DW1 has, in his evidence, stated that on 11 th

November 2006, in the evening he was proceeding to his

residence at Santacruz to meet his friend at Yari Road; that when

he was near the Nana Nani Park at about 20:00 to 20:15 hrs. he

heard noise, like that of fire crackers; that he stopped his vehicle

to the left of the road; that he saw one person holding a gun in

his hand under the street light pole and saw him falling

backwards; that the street light as well as the head lights of his

vehicle were on; that he saw some persons rushing towards the

said person from his right side; that one of the person came to

him and told that they were police personnel and that one person

has to be taken to the hospital; that he told the said person that

he did not want to get involved in the matter; that the said person

asked him his name and landline number; that pursuant thereto,

he took a U-turn and proceeded to his home; that when he

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reached home at about 21:15 hrs. he watched on T.V that there

was an encounter at Nana Nani Park.

181.1 That on 12th November 2006, Sankhe (PW39) from

Versova Police Station called him to the said police station; that

he received a call on his landline number; that when he reached

the police station, Mr. Sankhe asked him his name and address

and made inquiry with him with respect to the incident dated 11 th

November 2006 and accordingly, recorded his statement; that

again in 2007, he received a letter from the Collector Officer,

pursuant to which his statement was again recorded; that in 2009,

he received two summons from the Railway Mobile Court,

Andheri, pursuant to which his statements were recorded; that he

received a summon from SIT, pursuant to which his statement

was recorded again, with respect to the incident of 11 th

November 2006. The said witness has identified the statement

made before the Magistrate dated 23 rd December 2009, as

incorrect.

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181.2 The said witness was extensively cross-examined by

the learned Spl. PP with respect to the license of the tourist

permit, since he was plying his vehicle as a Tourist Vehicle, to

which he replied that he did not have a tourist permit; that the

booking of the vehicle would be done on the mobile

XXXXXX7724 which stood in the name of his son. He has

stated that he would use the said mobile of his son for booking of

the vehicle, however, on the day of the incident, he had not

carried the mobile. He has stated that the general public would

book his vehicle and that he used to travel to Ratnagiri,

Sawantwadi and several areas from Konkan. The said witness

although questioned that he had visited Saperli in Khed with A15

on several occasions, has denied the said suggestion. He has

stated that if one wants to go to Nana Nani Park, one has to take

a left turn to Juhu-Versova Link Road; that Nana Nani Park has a

length of 300 meters; that there are two roads on two sides of

Nana Nani Park; that it is correct to state that there was always

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two-way traffic at Juhu, Versova Link Road in the year 2006; as

well as two way traffic on the road running to the right of Nana

Nani Park; that it was correct to state that there is always heavy

traffic after office hours and on the weekend along side Nana

Nani Park. The said witness has denied his association with A15-

Dilip Palande. He has stated that he does not remember that

there was any vehicle behind and around his vehicle when he was

near Juhu-Versova Link Road near Nana Nani Park.

181.3 DW1, in his cross-examination has further stated that

he does not remember as to whether those 5 to 6 persons had

weapons in their hands. He has admitted in his cross that those 5

to 6 persons went by his right side, at a distance of 20 ft. from his

vehicle. He has further admitted that though headlights of his

vehicle were on, he did not see any weapon in the hands of those

5 to 6 persons. He has further admitted in his cross that he did

not see the pool of blood, where the person had fallen down.

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181.4 It is pertinent to note that there is material omission

with respect to what DW1 has stated in his examination-in-chief

i.e. "I saw one person holding a gun in his hand, under the street

light pole and saw him falling backwards" with respect to the

statement recorded on 12th November 2009. The omission is

with respect to the words "holding a gun in his hand" and

"backwards". There is also an omission in the statement dated

12th November 2006, with respect to having witnessed the

incident in the street light as well as the head lights of the vehicle.

Similarly, there are several other omissions.

182 Certain omissions recorded in the evidence of DW1

were brought on record through PW39, since he had recorded

the statement of DW1-Manohar Kulpe.

183 Thus, from the evidence as stated aforesaid and the

evidence that has already come on record, we find it difficult to

place any reliance, much less, implicit reliance on this witness.

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The said witness appears to be a completely got-up witness

planted by the appellants-accused in support of their case of a

genuine encounter. We have already set out the reasons in detail,

for holding that no such encounter as alleged by the prosecution

had taken place.

184 Keeping in mind, from the evidence that has come on

record, as discussed herein-above, we find that the prosecution

has proved beyond reasonable doubt, that Ramnarayan was

killed brutally in cold blood by the accused, when he was in their

custody and that to cover up the same, given it a colour of a

genuine encounter. All circumstances and evidence adduced by

the prosecution clearly points to their complicity and leaves

absolutely no room for doubt, the possibility of it being a genuine

encounter. As noted by us earlier, once the prosecution had

successfully proved that Ramnarayan and Anil Bheda were

abducted by the accused, the onus shifted on the accused, to

prove to the contrary. However, the prosecution on its own

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steam and merit has also proved that Ramnarayan was killed by

the police, by trigger happy cops, and the same was made to look

like a genuine encounter.

185 The said evidence that Ramnarayan was killed, is also

borne out by the Ballistic Evidence. The said evidence will reveal

that the deceased was shot at a distance of about 2 feet, whereas,

according to C.R. No.302/2006, the distance would be around 40

feet. Thus, we now proceed to consider the next circumstance

relied upon by the prosecution i.e. Ballistic/Forensic Evidence.

iv. BALLISTIC EVIDENCE/FORENSIC EVIDENCE

a. Weapon History

186 Each weapon allotted to the accused can be separately

identified by the butt number and the manufacturing number of

the weapon. A weapon history register is maintained in the

Magazine Section, where there is a separate sheet for each and

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every weapon. The weapons allotted to the accused, with which

we are concerned, are as under:

OA1 - Butt no. 347 (Exh. 8)

A2 - Butt no. 786 (Exh. 7)

A9 - Butt no. 475 (Exh. 1)

A11 - Butt no. 2912 (Exh. 5)

A15 - Butt no. 624 (Exh. 4)

A18 - Butt no. 294 (Exh. 3)

A22 - Butt no. 468 (Exh. 2)

187 The prosecution, in support of the same, has

examined four witnesses i.e. PW22-Vishnu Khatal, District

Hawaldar attached to D.N. Nagar Police Station; PW23-Shavaka

Tadvi, District Hawaldar attached to D.N. Nagar Police Station;

PW17-Hanumant Kambli, Police Hawaldar attached to Versova

Police Station; and PW19-Jyotiram Phasale, District Hawaldar

attached to Versova Police Station.

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b. Allotment and Deposit of Arms and Ammunition in C.R.

No. 302/2006

As far as allotment of arms and ammunition is

concerned the following witnesses were examined;

188 PW17-Hanumant Kambli has deposed that on 11th

November 2006, Nitin Sartape (A11) asked him to allot him a

pistol, pursuant to which, he handed over one pistol i.e. (Butt No.

2912 and 6 rounds of ammunition), to A11, on 11th November

2006. The said witness has produced the relevant station diary

entry made in support thereof i.e. Exh.-197. Admittedly, A11

does not dispute issuance of a revolver and six rounds to him, by

PW17.

189 PW22-Vishnu Khatal was attached to D.N. Nagar

Police Station as District Hawaldar at the relevant time. He has

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stated that he made station diary entries in his own handwriting

in the Register marked as Exhibits 216, 217, 218 and 219. He has

stated that on 11th November 2006 at 6:00 hrs, he handed over 1

revolver bearing Butt No. 475 and 6 rounds to A9; and 1 revolver

bearing Butt No. 468 and 5 rounds to API Sarvankar (A22); 1

revolver bearing Butt No.624 and 6 rounds to Palande (A15) and

1 revolver bearing Butt No. 294 and 6 ammunition to Patade

(A18). Admittedly, A9 does not dispute issuance of a revolver and

6 rounds to him, by PW22-Vishnu Khatal. It appears from the

evidence of this witness that all the three appellants/accused i.e.

A9, A15 and A18 have signed having received weapons and

rounds, however, inadvertently, the signature of A22 was not

taken. The said witness has produced the entries made in the

station diary (Exh. 218-A and Exh. 219-A respectively).

It is pertinent to note, only A22 has denied taking

arms. Rest have not denied taking arms and ammunition.

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190 As far as deposit of arms and ammunition in the very

said C.R. are concerned, the same are stated to have been

deposited on 12th November 2006, the details are as under:

191 PW23-Shavaka Tadvi, who was attached to D.N.

Nagar Police Station, at the relevant time, has deposed that A9

surrendered 4 rounds and that 2 rounds were less. The reason

given was that an encounter had taken place within the limits of

Versova Police Station, in which, 2 rounds were fired. A9

surrendered the weapon and 4 rounds at D.N. Nagar Police

Station and accordingly, there is an entry made in the station

diary at Exh. 221-A. PW23 has further stated that A9 produced 2

bullet shells (Article 46 Colly.) which were seized and sealed

under a panchnama (Exh. 279) by Mohandas Sankhe (PW39), on

12th November 2006.

191.1 PW23 has further deposed that on 12th November

2006, A22 surrendered 4 rounds and that there was 1 round less.

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The reason given was that an encounter had taken place within

the limits of Versova Police Station and one round was fired. The

said surrender of bullets is recorded in the station diary entry

which is at Exh.-222, the relevant entry being marked in red ink

(Exh.-217).

191.2 According to PW23, on 12th November 2006, A15

surrendered 5 rounds i.e. 1 round less. The reason being that an

encounter had taken place within the limits of Versova Police

Station and that one round was fired in the said encounter. The

said entry was made in station diary Exh.-223 and relevant entry

was marked as Exh.-280 in red ink.

191.3 PW23 has further deposed that A18 also surrendered

6 rounds on 12th November 2006 and no round was found less.

The said entry is at Exh. 224-A.

191.4 PW17-Hanumant Kambli was attached to Versova

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Police Station at the relevant time, as Police Hawaldar. He has

stated that A11 asked him to allot him a pistol. Accordingly, he

handed over one pistol and 6 rounds to A11 and that A11 signed

on the Register marked as Exh.-197, copy of the same is marked

as Exh. 197A. He has identified the said entry as being in his

handwriting. Although it is suggested to PW17 that he did not

allot any weapon to A11, the said witness has denied the said

suggestion. Infact, A11 in his 313 (Question No.109 has

accepted the said evidence of PW17 with respect to handing over

the weapon to him.

192 PW19-Jyotiram Phasale was attached to Versova

Police Station as District Hawaldar at the relevant time. He has

deposed that at about 22:00 hrs. on 11 th November 2006, A11

deposited pistol Butt No. 2912 and 5 rounds (one round less)

with him i.e. at Versova Police Station. PW19 has stated that

A11, on inquiry, had informed him that one round was fired in

Versova C.R No. 302/2006 relating to an encounter; that there is

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an entry in the station diary when weapons are allotted; that an

entry regarding deposit/return of one pistol and 5 rounds was

made at Exh. 202, but there are no counter signatures thereon.

(A11 refused to answer the said question No. 111 in his 313

statement (Exh.-932).

193 As per C.R No. 302/2006, A9 fired 2 bullets; A11 - 1

Bullet; A15 - 1 bullet; and A22 - 1 bullet. However, the FSL

report shows that the bullet fired from A11 was infact fired from

A2's weapon and the bullet fired from A22's weapon is stated to

have been fired from OA1's weapon.

(It may be noted that no weapons were sent to FSL in C.R.

No. 302/2006 and came to be sent only after registration of the

present CR).

194 Three bullets were retrieved from the body of

Ramnarayan. The FSL report shows that one bullet was fired

from OA1's weapon; one from A9's weapon and one from A15's

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weapon. It appears that only after the FSL report was received

that A11 and A22 disputed firing on the deceased or of taking the

weapons.

195 The evidence of PW23-Shavaka Tadvi attached to the

D.N. Nagar Police Station, District Hawaldar revealed that on

12th November 2006, he received arms from A9, A15, A18 and

A22. The said witness has given details of the arms received i.e.

Exhibits 216 to 219 and Exh. 221. There is no cross whatsoever

on the same or on para 3, wherein, it is stated that less rounds

were produced by the said accused.

c. Investigation vis-a-vis the weapons

PW60 - Maruti Y Patil

196 PW60-Maruti Patil was attached to the Magazine

Section at Naigaon Armory Depot at the relevant time. He has

deposed with respect to giving and handing over of weapons and

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seizure of weapons by SIT. He has stated that there is a weapon

history register maintained in Magazine Section, where entry of

arms and ammunition allotted to police stations/police

officers/police personnel as well as arms and ammunition

deposited by police stations/police officers/police personnel is

taken down. He has further stated that there is a separate sheet

for each and every weapon and a particular weapon can be

identified by its butt number and the manufacturing number of

the weapon. He has further stated that the rounds are

accepted/deposited and that even if one round is less, the same is

to be accounted for. He has given history of the weapons of

OA1, A2, A9, A11, A15, A18 and A22. According to PW60,

OA1, A2 and A15 had got weapons allotted in their own names.

He has stated that Butt No.786 was with A2 on 11th November

2006 and that the said weapon was with A2 from 2004 to 2009.

It appears from the FSL report that A2 fired from his weapon.

196.1 It also appears that A11 has denied firing only on

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receipt of the FSL report, though the FIR i.e. C.R. No.302/2006,

lodged by A9 says that A11 fired at the deceased. From the FSL

report and the evidence of PW86, it appears that A11's bullet was

used by A2 in his weapon and therefore, A2's rounds were intact,

whereas, A11 deposited 29 bullets instead of 30 bullets.

According to the prosecution, A11 took 30 bullets but deposited

29, as one was used in C.R. No.302/2006, whereas A2 took 30

bullets and deposited 30. It appears that A2 took 1 round from

A11 and shot from his (A2's) weapon.

196.2 According to PW60, the weapons were given to PI

Gaonkar (PW109) in connection with the present C.R. He has

stated that A15 was given weapon (Butt No.624) on 5th

November 1998 and A22 (Butt No.468). He submitted that

each Butt number has a history and as such the history assumes

importance since it discloses utilization of the said weapon, with

whom the custody of the weapon is, and whether any firing is

done from the said weapon. From the evidence of PW60, it

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appears that the weapon used by A22 i.e. Butt No.468 was with

the D.N. Nagar Police Station; that A22 took his weapon and 5

bullets from D.N. Nagar Police Station and returned 4 bullets;

that the empty was returned by A22 after he allegedly firing. The

FSL report (Exh. 658 colly) shows that the said empty returned

by A22 was fired from OA1's weapon. A9's butt history is set out

in Butt No.475 and OA1's butt history is set out in Butt No.347.

From a perusal of the Butt History of OA1's weapon, it appears

that on 30th August 2022, OA1 was dismissed from service and

was asked to deposit his weapon with Dharavi Police Station.

Accordingly, OA1 deposited the said weapon with PW56. The

said weapon was deposited by OA1 with Dharavi Police Station

on 12th December 2009. Exh. 491A gives the description of the

weapon and 6 rounds submitted by OA1. PW60 has stated the

rounds given every year. According to A2, he submitted 30

rounds, hence according to him he could not have fired. A letter

dated 5th December 2009 (Exh. - 493) bearing signature of Senior

P.I. of Arms and Ammunition Branch, for getting live bullets to

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match the empties fired from revolver (Butt No.786) of A2, was

sent. A letter dated 4th December 2009 was also sent with respect

to OA1's weapon (Exh. 495). It appears from the letter dated 9 th

December 2009 marked as Exh. 496 (colly) that the weapon and

ammunition were collected from Naigaon and the weapons were

accepted on 10th December 2009.

PW66 - Shabbir Mehaboob Sayyad

197 PW66-Shabbir Sayyad was attached to the Magazine

Section, Armory Division, Naigaon. In para 3 of his evidence, he

has given how weapon history register is maintained; how he

handed over pistol i.e. Pistol Butt No.2912 of 2011 (weapon used

by A11) and Butt No.624 (weapon used by A15), to PSI-Billare,

Versova Police Station. In paragraphs 15 to 17 of his evidence, he

has stated that he had handed over revolver and 30 rounds to

OA1.

PW67 - Manoj Desai:

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198 PW67 - Manoj Desai, was attached to Magazine

Section, Armory Division, Naigaon, at the relevant time i.e.

during the period 2002 to 2005. He has stated that he gave

weapons to D.N. Nagar Police i.e. Butt No. 468 (which was used

by A22); Butt No.475 (which was used by A9) and Butt No.294

(used by A18). As far as Butt Nos. 468 and 475 used by A22 and

A9 are concerned, it is alleged that the said weapons were fired

from. As far as Butt No. 294 used by A18 is concerned, the said

weapon was not fired from. According to PW61, OA1 had

deposited a .38 T.T. Revolver, Butt No.700 and had taken Butt

No.347 on 24th December 2001.

PW80 - Pravin Baliram Bhosale

199 PW80-Pravin Bhosale was attached to the Magazine

Section, Armory Naigaon, at the relevant time. The said witness

was examined to prove the allotment of pistol i.e. Butt No.786 to

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A2 with 30 rounds.

PW98 - Sandeep Ganpatrao Dal:

200 PW98-Sandeep Dal was attached to the Armory

Section, Naigaon, as Senior P.I. at the relevant time. The said

witness has produced the original copies of the register sought by

SIT, pursuant to a letter addressed by them in the present C.R. He

has stated that empties of revolver and pistol were also handed

over to SIT. He has also proved the correspondence exchanged

between SIT and the concerned department. The said witness i.e.

PW98 has proved letter (Exh.-714) sent by K.M.M. Prasanna, Dy.

CP to the Addl. CP, Armed Police Force, Naigaon and letter

(Exh.-715) sent by Sr.PI (Armory), Naigaon to the Addl.CP,

Armed Police Force, Naigon, Mumbai, regarding getting

information about the firearms for the purpose of investigation in

CR No.246/2009.

PW28 - Bapurao Sangappa Fulare

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201 PW28-Bapurao Fulare was examined by the

prosecution, being a panch to the seizure of arms from Naigaon

Division with respect to the arms of A2, A9, A11, A15, A18 and

A22. The said witness has also spoken about the ammunition

provided of the same batch as the empty. The said panchnama is

dated 10th December 2019 being Exh. - 232, with respect to the

seizure of 7 weapons.

PW34 - Shamsuddin Mohd. Yunus Ansari

202 PW34-Shamsuddin Ansari, another panch, was

examined by the prosecution with respect to collection of the

weapon of OA1 from Naigaon and the seizure of the said weapon

i.e. panchnama (Exh. 261).

203 With respect to seizure of arms and ammunition and

other investigation carried out, the prosecution examined 4

witnesses i.e. the Investigating Officers - PW107, PW108, PW109

and PW110.

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PW107 - Manoj Laxman Chalke

204 PW107-Manoj Chalke is one of the Investigating

Officer. He has deposed with respect to sealing of weapons i.e. 4

revolvers and 3 pistols; with respect to the Muddemal Register at

Versova Police Station; with respect to arrest of OA1 on 7th

January 2010. The said witness was cross-examined with respect

to the statement of Anil Bheda being recorded by SIT for the first

time on 3rd September 2009; the statement recorded of

Gangadhar Sawant, Fingerprint expert on 27 th October 2009 and

the First Report dated 12th November 2006 given by the said

Fingerprint Expert at the spot; with respect to Railway Ticket etc.

PW108 - Vinay Baburao Ghorpade

205 PW108-Vinay Ghorpade, another Investigating

Officer was examined to show that he had recorded PW1's

complaint i.e. FIR being Exh. - 121, pursuant to which, C.R.

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No.246/2009 was registered for production of faxes and

telegrams, sketch of the spot. The said witness had taken Anil

Bheda to Andheri Court to have his statement recorded; arrested

Tanaji Desai (A2), Shailendra Pandey @ Pinky (A4), Hitesh

Solanki @ Dhabbu (A5) and Akhil Khan @ Bobby (A6) on 7th

November 2011; had taken the articles to the FSL Kalina; had

arrested Sunil Solanki (A10) on 9th March 2010; had visited

Trisha Collections and prepared a running panchnama (Exh. 753)

as disclosed by Anil Bheda to him i.e. from the time of abduction

till he was taken to D.N. Nagar Police Station; sealing of 6 rounds

of a revolver which were in the name of OA1, from Dharavi

Police Station etc.

206 PW107 and PW108 were cross-examined at length.

The said officers stood their ground and as such, there is nothing

in their testimony to disbelieve the investigation carried out by

them.

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PW109 - Sunil Sahadev Gaonkar

207 PW109-Sunil Gaonkar, another Investigating Officer

has also deposed with respect to the investigation carried out by

him.

PW110 - K.M.M. Prasanna

208 The head of the SIT- K.M.M. Prasanna was examined

by the prosecution as PW110. He had deposed with respect to

the letters addressed by SIT to various authorities; with respect to

SIT's letter to Versova Police Station dated 4 th November 2011

(Exh. 840 seeking information of Arms and Ammunition), reply

received from the Versova Police Station dated 6 th November

2009 (Exh. - 841).

208.1 PW110 has in his evidence deposed that default

report was made against PW39 for preparing false spot

panchnama in C.R. No. 302/2006. He has further deposed about

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the actions taken against the then ACP Suryawanshi, D.N. Nagar

Division (brother of A9) and Avdhoot Chavan, the then PI, D.N.

Nagar Police Station. He has deposed that Avdhoot Chavan, on

the instructions of the then ACP Suryawanshi, had prepared three

letters with the assistance of his writer in his office, addressed to

the Chief Metropolitan Magistrate, Mumbai, seeking orders to

record the statements of some witnesses in Versova Police Station

in CR No.302/2006 and had signed the said letters on behalf of

the then Sr.PI of D.N. Nagar Police Station.

d. Movements of Weapons, Arms and Ammunition

209 At this stage, it will be apposite to place on record the

movement of weapons, arms and ammunition. According to

PW39- PI Mohandas Sankhe, during the course of investigation

of C.R No. 302/2006, he seized, labelled and sealed 2 empties

(Article 46) produced by A9. The station diary entry is at Exh.

282 and the panchnama of empties is at Exh. 279. It also appears

that during the investigation of the said C.R, PW39 seized,

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labelled and sealed 9 mm empty (Article 57 Colly.). The station

diary entry is at Exh. 287 and panchnama of the empty is at Exh.

86.

210 It further appears that PW39 also seized, labelled and

sealed 1 empty (Article 63 Colly.) in C.R.No. 302/2006, which

was produced by Arvind Sarvankar (A22). The station diary entry

to that effect is at Exh. 287 and panchnama of the empty is at

Exh. 286. It also appears that in the very same C.R, PW39 seized,

labelled and sealed 1 empty (Article 60 Colly.) produced by A15.

The station diary entry is at Exh. 287 and panchnama of the

empty is at Exh. 286.

211 According to PW71, Dattatray Koyte, on 12th

November 2006, at the request of PW39, he acted as a panch to

the deposition of empty cartridges produced by A15 and A22.

The articles are Article 60 and Article 63 respectively and the

panchnama is at Exh. 286.

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212 According to PW11-Dr. Sunil Shinde, Casualty

Medical Officer working at Cooper Hospital, on 11 th November

2016, he was working in night shift since 20:00 hrs, which ended

on the next day at 8:00 hrs. PW11 has deposed that the police

brought a patient involved in a medico legal case i.e. Ramnarayan

Gupta was brought to Casualty by PC No. 970043 of Versova

Police Station. There is an entry in the original MLC Register of

Cooper Hospital, which is exhibited through this witness and the

same is at Exh. 174 and 174-A. According to PW11, said entry

was made in the MLC Register No. 45/2006 at serial No. 22278

on page No. 139. He has stated that on examination, the patient

was found to be dead. PW11 noticed 6 injuries on the said

patient.

"1. Circular puncture wound about 1 cm over forehead, fresh in nature

2. Circular puncture wound about 1 cm over right anterior chest, fourth inter costal space, above nipple, fresh in nature

3. Circular puncture wound about 1 cm in left anterior

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chest, second inter costal space, fresh in nature

4. Circular puncture wound about 1 cm in left fourth inter costal space, anteriorly, fresh in nature

5. Circular puncture exit wound, over right third inter costal space, posteriorly, fresh in nature

6. Circular puncture wound about 1 cm posteriorly, over left body of scapula, fresh in nature."

213 According to PW29-Dr. Gajanan Chavan, on 12 th

November 2006, he along with Dr. S. M. Chavan, conducted

post-mortem on the dead body (Ramnarayan Gupta), which was

sent by PSI Jadhav of Versova Police Station and brought by PC

960428. The post-mortem report was exhibited as Exh. 237.

PW29 has stated that at the time of post-mortem, he retrieved 3

bullets from the body of the deceased; that he collected 2 bottles

containing blood; 2 bottles containing water-like liquid and 1

bottle containing 3 bullets. He has stated that he handed over 4

forms to be given to the Chemical Analyser, FSL to Mr. Kailas

Devrao Ekilwale (PW21). The said witness has identified the 4

forms handed over by him, which have been exhibited as

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Exhibits 211 (blood form), 212 (blood form), 213 (hand wash

form) and 214 (bullet form).

214 It thus appears from the aforesaid evidence that the

prosecution has duly proved the movement of weapons; of arms

and ammunition and seizure of articles.

e. Link evidence and Ballistic Expert's Evidence

PW29 - Dr Gajanan Shejrao Chavan -

215 PW29-Dr. Gajanan Chavan was working in J.J.

Hospital since December 1998. He has deposed that as a part of

his duty, he also worked in the J.J. Post-mortem centre attached

to the J.J. hospital; that on 12th November 2006, while he was

on duty, one dead body of Ramnarayan Vishwanath Gupta was

sent by PSI Jadhav of Versova PS and was brought by PC 960428

along with panchnama and ADR form and documents; that he

had conducted Post-mortem of said body from 00:30 hrs. to 1:30

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hrs.

215.1 He has further deposed that hand-wash for ballistic

examination was preserved; that the three bullets retrieved were

also forwarded to FSL and all the five injuries were ante mortem

in nature and were fresh; that the blood, hand-wash liquid and

bullets were collected in proper containers and the same were

labeled and sealed and forwarded with appropriate forms to the

FSL through police. He deposed that the said three bullets

marked as Article 30/1 to 30/3 were sent to the FSL in a glass

bottle and the said bottle was sealed after affixing string; that the

bottle marked as Article 29 bears label in his handwriting and his

signature, noting that the bottle contains 3 bullets.

PW21 - Kailas Devrao Ekilwale

216 PW21-Kailas Ekilwale was deputed at Versova Police

Station since November 2006. In November 2006, he was

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assigned duty of primary investigation. He has deposed that on

12th November 2006, he was handed over 5 sealed bottles by

PW29-Dr. Gajanan Shejrao Chavan i.e. 2 bottles containing

blood, 2 bottles containing water like liquid and 1 bottle

containing 3 bullets. He has further deposed that four forms were

handed over to him, to be given to the Chemical Analyser, FSL

and his signatures were obtained on the copies of the forms, as

acknowledgment thereof. He has stated that he signed the said

forms in acknowledgment of the receipt of these articles and

forms on the front side marked as `A' on each form. The said four

forms received by him were exhibited as Exhibits 211 (blood

form), 212 (blood form), 213 (hand-wash form) and 214 (bullet

form).

216.1 PW21 has stated that he carried the articles and forms

to the police station and handed over the same to PI-Sankhe

(PW39), of Versova Police Station.

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PW39 - Mohandas Narayan Sankhe

217 PW39-Mohandas Sankhe has deposed that when he

received articles from PW21 on 13 th November 2006, he

forwarded the viscera bottles and the seized articles to the FSL;

that he forwarded the said property to the FSL under five letters

through PW53-Vishwajit Chavan and PW91-Sudu Pattade. The

five items forwarded by PW39 are (I) Hand-wash of the deceased

(Exh.-290) ; (ii) Blood for alcohol (Exh. - 291); one sealed

bottle of 3 bullets (Exh.-292) (iv) Blood for blood grouping

(Exh.-293) (v) Letter to the C.A. by Sr.PI of Versova Police

Station dated 13th November 2006.

PW53 - Vishwajit Manohar Chavan

218 PW53-Vishwajit Chavan was attached to Versova

Police Station as Police Constable, since November 2005.

According to PW53, he met Sudu Pattade (PW91) Store keeper

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on 13th November 2006. He has stated that thereafter they took

articles seized by the police and some bottles sent by J.J. Hospital

to Kalina for chemical analysis. The said muddemal was in

respect of C.R. No.302/2006 of Versova Police Station and that

the hospital papers (4 in numbers), police station papers (4 in

numbers) and bottles were with him. The said witness has

identified the same (Exhibits 290 to 293) and the documents

(Exhibits - 211 to 214), already exhibited through PW29-Dr.

Gajanan Chavan.

PW91 - Sudu Krushna Pattade:

219 PW91-Sudu Pattade was attached to Versova Police

Station as ASI since 4th June 2004 till 30th June 2009. He has

deposed that he had the charge in the capacity of Muddemal

Store Keeper in Versova Police Station. He has deposed that on

13th November 2006, he took 15 sealed packets alongwith a letter

to FSL, Kalina, Mumbai and there is an entry made in the Station

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Diary to that effect i.e. Exh. 297(A). The said entry is in the

handwriting of Mr. Pradhan, as per his (PW91's) instructions.

Exh. 297(A) is the station diary entry No.25/06 dated 13 th

November 2006 of Versova Police Station regarding dispatch of

muddemal to FSL.

220 It appears from the evidence of PW29-Dr.Gajanan

Chavan that he gave five sealed bottles i.e., two bottles containing

blood, two bottles containing water like liquid and one bottle

containing three bullets, to PW21 who in turn gave these articles

to PW39, which were sent to FSL through PW53 and PW91.

Admittedly, as noted above no weapons were sent to FSL, in C.R.

No.302/2006.

PW86 - Gautam Natha Ghadge:

221 PW86-Gautam Ghadge was working as Scientific

Assistant and was promoted as Assistant Chemical Analyzer in the

year 2008. He has deposed that a forwarding letter No.6523/2006

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dated 13th November 2006 (Exh. 294-A) was brought by ASI

Patade (A18) of Versova Police Station, which was initially

received by Mahesh Khavanekar, who, later on, handed over the

same to PW86. He has submitted that Dr. (Ms). Deshpande, the

then Assistant Chemical Analyser, Kalina received 15 sealed

parcels on 13th November 2006 and marked them as Exhibits 1 to

15. Dr. (Ms.) Deshpande, effected the entry of BL/938/2006 in

the Entry Register and kept the sealed packets in the Strong

Room. Before keeping the same in the Strong Room, the sealed

packets were opened. The said 15 sealed parcels sent along with

the forwarding letter (Exh. 294-A), in connection with C.R.No.

302/2006 were-

Parcel (1) (Exh.-1), One 6 Chambered country made revolver having crude markings made in Japan. (allegedly used by the deceased).

Parcel (2) (Exh.-2), 2 Two .32 - inch revolver cartridges having light indentation on the caps and head stamp marking KF .32 S & WL and RP .32 S & WL. (allegedly used by the deceased).

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Parcel (3) (Exh.-3), Two KF .32 - Inch S & WL revolver empties having indentation on the caps. (A18's weapon)

Parcel (4) (Exh.-4), One 9mm pistol having indentation on cap and head stamp marking KF9 mm 2z.94. (A15's weapon)

Parcel (5A & 5B) (Exh. 8), Two .38" revolver empties having indentation on cap & head stamp marking KF.380.2.90. (OA1's weapon)

Parcel (6) (Exh. 9), Two .38" revolver empties having indentation on cap & head stamp marking KF.380.2.01 (A15's weapon)

Parcel (7) (Exh. 10), Two .38" revolver empties having indentation on cap & head stamp marking KF.380.2.98. (A22's weapon)

Parcel (8) (Exh. A), Reddish liquid in a phial.

Parcel (9) (Exh. B), Reddish liquid in a phial.

Parcel (l0A) (Exh. C), Full Bush Shirt (Cut)

Parcel (l0B) (Exh. C), Full Pant

Parcel (10C) (Exh. C), Sando banian (Cut)

Parcel (10D) (Exh. C), Underwear (Cut)

Parcel (11A & 11B), (Exh. D), A pair of shoes

Parcel (12) (Exh. E), Reddish liquid in a phial

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Parcel (13) (Exh. 5). Reddish liquid in a phial

Parcel (14) (Exh. 6), Earth mixed with reddish liquid in phial

Parcel (15) (Exh. 7), Earth in a Phial

The reports Exhibits 251 (251A), 253 (253A), 254

(254A) were exhibited through this witness.

222 The ML Case No. BL/939/2006 is with respect to

three deformed copper jacketed bullets having rifling marks, put

in the bottle having label and seal of JJ PM Center i.e. of the

deceased, were marked as Exhibits lA to IC. The details of the

said Exhibits are as under:

Exh. 292 is the forwarding letter dated 12 th December 2006

bearing Outward No. 6522/06 from Versova Police Station to

FSL in C.R.No. 302/2006 in respect of one sealed bottle of 3

bullets.

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Exh. 292A is the letter dated 12th November 2006 to JJ

PM Center, Byculla, Mumbai in C.R. No. 302/06 in respect of

one sealed bottle of 3 bullets.

Exh.292B is the forwarding letter dated 12th December

2006 bearing Outward No.6522/2006 from Versova Police

Station to FSL in CR.No. 302/2006 in respect of one sealed

bottle of 3 bullets (fired by deceased).

The M.L Case No.BL/940/2006 pertains to two sealed

bottles containing handwash of the deceased having label and

seal of JJ PM Center. There is an entry in the entry register

which is marked as Exhibits 1 and 2.

Exh. 290 is the forwarding letter dated 12th December 2006

from Versova Police Station to FSL in C.R No. 302/2006 in

respect of handwash of deceased's right and left hand.

Exh. 290A is the letter dated 12th November 2006 from J.J.

P.M Center, Byculla, to the Chemical Analyzer, State

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Government, Mumbai, in C.R. No. 302/2006 (ADR No.

55/2006) of the deceased.

223 PW86-Gautam Ghadge started analysis on all articles

under ML Case No.BL/938/2006 on 28th May 2007; ML Case

Nos. BL/939/2006 and BL/940/2006 on 30 th May 2007 and

thereafter, he prepared the reports vide Exhibits 251 (251 A), 253

(253A) and 254 (254A).

The relevant portion from Exh. 251 (251-A) reads thus :

"-----Exhibit 1 is a six chambered country made revolver in working condition. It is capable of chambering and firing .32"

revolver cartridges. Residue of fired ammunition-nitrite-was detected in barrel washing of revolver exhibit 1, showing that the revolver was used for firing prior to its receipt in the laboratory.-----

----Two .32" revolver cartridges available in the laboratory were successfully test fired from the revolver exhibit 1.----

----The .32" revolver cartridges in exhibit 2 having light indentation on the caps and not suitable for comparison of firing pin impression----

----The empties in exhibit 3A and 3B are the fired 32"

revolver cartridge cases. The characteristic features of the firing pin impression observed under comparison microscope on the empties in exhibit 3A and 3B tally among them-selves and on

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those cartridges test fired from the revolver exhibit 1, showing that these empties in exhibit 3A and 3B have been fired from the country made revolver exhibit 1----

----The empty in exhibit 4 is a fired 9 mm pistol cartridge case----

----The empties in exhibit 5A, 5B, 6 and 7 are the fired .38" revolver cartridge cases----

----The detection of metallic copper and lead in absence of blackening and powder residues around periphery of encircled shot holes on full bush shirt exhibit 10A and corresponding shot holes on sandow banian exhibit 10C are consistent with the passage and wipe of copper jacketed bullets having been fired from beyond the powder range of the weapon-----

----Shot holes were not observed on full pant exhibit 10B and underwear exhibit 10D.----"

The relevant portion from Exh. 253 (253-A) reads thus :

"---- In absence of control samples, results for detection of gun shot residues in turbid liquid in Exhibit 1 and 2 are inconclusive.----"

The relevant portion from Exh. 254 (254-A) reads thus :

"---- The deformed copper jacketed bullets in Exhibit 1A to 1C are the fired .38" caliber revolver bullets.----"

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224 As far as seizure of articles and FSL evidence in the

present C.R i.e. 246/2009 by SIT is concerned, the prosecution

has relied on the evidence of PW99-Suresh Nalawade, PW39-

Manoj Chalke and PW86-Gautam Ghadge.

PW99 - Suresh Jagannath Nalawade:

225 PW99-Suresh Nalawade, was attached to Versova

Police Station as Sr. PI, at the relevant time. He has stated that

he received a letter dated 17 th December 2009 (Exh. - 717) for

handing over muddemal (6 packets) in a sealed condition to Mr.

Manoj Laxman Chalke (PW107) vide his letter dated 19 th

December 2009 (Exh. 718). Exh. - 717 is the letter of SIT

dated 17th December 2009 bearing O.W. No. 156/2009 addressed

to Sr. PI Versova Police Station to hand over Muddemal in C.R.

No. 302/2006 and Exhibits 717 /718 is the covering letter dated

19th December 2009 bearing O.W. No. 8193/09 of Sr. PI. Versova

for handing over Muddemal to DCP SIT.

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PW107 - Manoj Laxman Chalke:

226 PW107 - Manoj Chalke, the Investigating Officer in

the present C.R. has deposed that on 19 th December 2009, he

went to Versova Police Station, to receive Muddemal required in

investigation of C.R. No. 246/2009 from C.R. No. 302/2006;

that PW99-Suresh Nalawade handed over muddemal (6 packets)

in a sealed condition to him. He has stated that he also collected

13 other sealed parcels i.e. Muddemal from C.R. No. 246/2009,

which were deposited with the Muddemal Karkun of Versova

Police Station, for safe custody. He has deposed that he took

custody of 19 sealed packets and deposited the same at FSL,

Kalina on the very day i.e. on 19th December 2009.

227 PW86-Gautam Ghadge has deposed that on 19 th

December 2009, original letter bearing O.W No.157/2009

addressed to Chemical Analyzer, Mumbai-98, was sent by DCP,

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SIT, Mumbai (PW110-K. M.M. Prasanna). Exh. 656 (colly) is

the original letter dated 19th December 2009 by SIT to FSL,

Kalina, for chemical analysis. The said original letter (Exh.-

656A) and the parcels were received by Mahesh Khavanekar.

19 sealed parcels alongwith the said forwarding letter of Mr.

K.M.M. Prasanna (PW110) were sent to FSL, as per PW107-

Manoj Chalke. The said forwarding letter and all Exhibits

therewith, were allotted number BL/975/2009 by PW86.

228 Report dated 2nd February 2010 from FSL, Kalina

regarding chemical examination in ML Case No. BL/975/2009 in

C.R. No. 246/2009 alongwith photographs and negatives (three

roles) were marked as Exh. 658 (colly). The said 19 parcels sent

to the FSL were as under :

Parcel - 1 (Exh.1) - One six chambered .38" caliber

revolver having body no ....0539 butt no. 475 marking RUGER

POLICE SERVICE - SICX CAL .380 (Article no- 15) bears cello

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tape label bearing no. BL-975/09 Exh. 01.

Article 25 original label of Versova Police Station, CR.No.

246/2009, BL/975/2009 Exh. 01 is in his handwriting on the

label (Envelop marked Exh. 90).

Parcel 2 (Exh.2) - One Six chambered .39-inch caliber

revolver having body No. 00532 butt No. 468 and marking

RUGER POLICE SERVICE - SICX CAL .380 yellow tag label

BL/975/2009 Exh. 2 Article.16, Wrapper Article No. 26, office

seal Article 91.

Parcel - 3 (Exh.3) - One six chambered .38" caliber revolver

having body No. V720936, butt no. 294 & marking SMITH &

WESSON .38 S & W CTG MADE IN U.S.A, Article 17. Cello

tape label BL/975/2009 Exh. 03,Wrapper Article 27.

Parcel - 4 (Exh.4) - One Six chambered .38" caliber revolver

having body no N405648 butt no. 624 and marking TITAN

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TIGER CAL. 38 PL FIE CORP MIAMI FLA, Article 18, bears

cello tape label mentioned BL/975/2009 Exh. 4, Article 28 label

of the police station on wrapper.

Parcel - 5 (Exh.5) - One 9 mm Caliber pistol having body

No. 16112478 butt No. 2912 and making PISTOL AUTO 9 mm

lA RFI, Article 19 cello tape label written BL/975/2009, Wrapper

article 20.

Parcel - 6 (Exh.6) - One 9 mm Caliber pistol having body

No. 16112181 butt No. 2915 marking PISTOL AUTO 9MM lA

RFI, Article 21 bears cello tape label mentioned BL/975/2009,

Police station label Article 22.

Parcel - 7 (Exh.7) - One 9 mm Caliber pistol having body

No. 15179116 butt No. 786 marking PISTOL AUTO 9MM lA

RFI, Article 23 cello tape label written BL/975/2009, Police

station label Article 24.

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Parcel - 8 (Exh.8) - One Six chambered .38" caliber revolver

having body no 161-21934 butt no. 347 and marking RUGER

POLICE SERVICE - SICX CAL .380, Article 69 bears cello tape

label written BL/975/2009, Article 44 wrapper with label of

police station.

Parcel - 9 (Exh.9) - Ten intact .38 revolver cartridges - head

stamp marking KF .380 2 90, Cartridges (Article 32/1), Three (3)

live cartridges (KF .380 2 90), Article 32/2 were Five (5) fired

cartridges (KF .380 2 90), Article 32/3 - two (2) test fired

cartridges, Article 32/4- five test fired lead with copper jacketed

bullets having rifling marks connected with Article 32/2, Articles

32/5 was two test fired bullets lead with copper jacketed having

rifling marks. Connected to Article 32/3.

Parcel - 10, Exh.10, (Pradarshit 'H') - Ten intact .38"

revolver cartridges having head stamp markings KF .380 2 90.,

Article 34/1 contained five intact .38" revc-!ver cartridges

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(KF .380 2 90.), Article 34/2 - five test fired cartridges (empties),

Article 34/3 - five test fired bullets lead with copper jacketed

bullets.

Parcel - 11, Exh.11, (Pradarshit 'H') - Ten intact .38"

revolver cartridges having head stamp markings KF .380 2 98,

Article 36/1 two intact. 38" revolver cartridges (KF .380 298),

Article 36/2 three test fired cartridges (Empties) (KF .380 2 98.),

Article 36/3 five test fired cartridges (empties) (KF .380 2 98.),

Article 36/4 five test fired copper jacketed bullets (lead with

copper). Article 36/5 three test fired copper jacketed bullets (lead

with copper).

Parcel - 12, Exh.12, (Pradarshit 'I')- Ten intact .38" revolver

cartridges having head stamp markings KF .380 2 01, Article 40/1

- three intact cartridges .38" revolver cartridges having head

(stamp markings KF .380 2 01), Article 40/2 were seven test fired

cartridges(empties) having head (stamp markings KF .380 2 01 on

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all empties.). Article 40/3 - five test fired lead with copper

jacketed bullets, Article 40/4 - two test fired lead with copper

jacketed bullets.

Parcel - 13, Exh.13, (Pradarshit 'L') were ten intact 9 mm

pistol cartridges having head stamp markings KF, 9 mm, 2 Z, 94,

Article 38/1- one attempted to fire 9 mm pistol cartridge having

indentation on the cap and head stamp markings KF 9 mm 2 Z

94., Article 38/2 were three test fired cartridges of 9 mm pistol

cartridges (Empties), stamp markings KF 9 mm 2 Z 94, Article

38/3 -three test fired 9 mm pistol cartridges (empties), having

head stamp marking, KF 9 mm 2 Z 94, Article 38/4 were three

test fired 9 mm pistol cartridges (empties) having head stamp

marking KF 9 mm 2 Z 94, Article 38/5 three test fired lead with

copper jacketed bullets. Article 38/6 were three test fired lead

with copper jacketed bullets. Article 38/7 test fired lead with

copper jacketed bullets.

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Exh. - 14 - one 9 mm Pistol empty having indentation on

the cap and head stamp marking KF9 MM 2Z 94, Written

Versova PSTN ADR 55/2006, Cr.No. 302/2006, BL/938/2006,

Article 57.

Exh. - 15 & 15B (Marked during receiving the Exhibits)

Article 46, two .38 revolver empties are having indentation on

the caps and head stamp marking KF 380 2 90 wrapped in paper

labelled BL 938/2006, Exh. 5A & 5B (Marked at the time

returning Muddemal to ASI Patade), sealed condition labelled

Versova PSTN ADR 55/2006 CR/306/2006.

Exh. 16 - One .38" revolver empty marking KF.380 2 01,

bears label Versova PSTN ADR 55/2006 CR/306/2006,

BL/938/2006, Exh. 06 written at the time of returning the

Muddemal to Versova police station though ASI Pattade. (Article

16) (Marked during receiving the Exhibits).

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Exh. 17 - One .38 revolver empty having indentation on

the cap & Head stamp marking KF .380 2 98 Versova PSTN

ADR 55/2006 CR/306/2006, BL/938/2006, Exh.07 Written at the

time of returning the Muddemal to Versova police station though

ASI Pattade. Exh. 17 ( Marked during receiving the Exhibits).

Exh.18A, - (Article 89) (30/1, 30/2, 30/3) one deformed

copper jacketed bullet having rifling marks. Exh. 18B one

deformed copper jacketed bullet having rifling marks 18C is one

deformed copper jacketed bullet having rifling marks Versova

PSTN ADR 55/2006 CR/306/2006, BL/938/2006,

Exh. 1A to 1C were written at the time of returning the

Muddemal to Versova police station, though ASI Pattade (A18).

The said exhibits were marked as 18A to 18C (Marked during

receiving the Exhibits).

Exh.19A - (Full Shirt) Article 73, labelled BL/938/2006

Ex.10A.

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19B (Full pant) Article 77, labelled BL/938/2006 Ex.10B.

19C (Sando Banian) Article 81, labelled BL/938/2006

EX.10C.

19D (Underwear) Article 85, labelled BL/938/2006

Ex.10D.

229 It is a matter of record that Muddemal articles and

FSL report were handed over to Mr. Vinay Baburao Ghorpade

(PW108), SIT on 2nd February 2010. The FSL Report is marked

as Exh. 658 (colly). The said FSL Report reads thus :

RESULTS OF ANALYSIS

Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4 and Exhibit 8 are the six chambered .38" caliber revolvers in working condition. .......

Randomly selected five .38" revolver cartridges from Exhibit 9 were successfully test fired from the .38" caliber revolver Exhibit 1.

Randomly selected five .38" revolver cartridges from Exhibit 10 were successfully test fired from the .38" caliber revolver Exhibit 2.

Randomly selected five .38" revolver cartridges from Exhibit 11 were successfully test fired from the .38" caliber

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revolver Exhibit 3.

Randomly selected six .38" revolver cartridges from Exhibit 12 were successfully test fired from the .38" caliber revolver Exhibit 4.

Randomly selected six .38" revolver cartridges, two from Exhibit 9, three from Exhibit 11 and one from Exhibit 12 were successfully test fired from the .38" calibre revolver Exhibit 8.

Exhibit 5, Exhibit 6 and Exhibit 7 are the 9mm caliber pistols in working condition. .....

Randomly selected three 9mm pistol cartridges from Exhibit 13 were successfully test fired from the 9mm caliber pistol Exhibit 5.

Randomly selected three 9mm pistol cartridges from Exhibit 13 were successfully test fired from the 9mm caliber pistol Exhibit 6.

Randomly selected three 9mm pistol cartridges from Exhibit 13 were successfully test fired from the 9mm caliber pistol Exhibit 7. Remaining one 9mm pistol cartridge in Exhibit 13 was found to be not live on test firing from 9mm caliber pistol Exhibit 7.

The empty in Exhibit 14 is a fired 9mm pistol cartridge case. The characteristic features of the firing pin impression (examined under comparison microscope) on the empty Exhibit 14 tally with those on the cartridges fired from the 9mm caliber pistol Exhibit 7, showing the empty has been fired from the 9mm caliber pistol Exhibit 7.

The empties in Exhibit 15A and 15B are the fired .38"

revolver cartridge cases. The characteristic features of the firing pin impression in addition to breech face marks (examined under comparison microscope) on the empties Exhibit 15A and 15B tally among themselves and with those on 38" revolver cartridges

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fired from the .38" caliber revolver Exhibit 1, showing these empties have been fired from .38" caliber revolver Exhibit 1.

The empty in Exhibit 16 is a fired .38" revolver cartridge case. The characteristic features of the firing pin impression (examined under comparison microscope) on the empty Exhibit 16 tally with those on the cartridges fired from .38" caliber revolver Exhibit 4, showing the empty has been fired from the .38" caliber revolver Exhibit 4.

The empty in Exhibit 17 is a fired .38" revolver cartridge case. The characteristic features of the firing pin impression, in addition to breech face mark (examined under comparison microscope) tally with those on the .38 " revolver cartridges fired from the .38" caliber revolver Exhibit 8, showing the empty has been fired from the .38" caliber revolver Exhibit 8.

The deformed copper jacketed bullet in Exhibit 18A is a fired .38" caliber revolver bullet. This bullet (examined under comparison microscope) tally with test fired bullets from .38"

caliber revolver Exhibit 1, in respect of the number and widths of the lands and grooves, direction and extent of twist of rifling and characteristic striations on the lands and grooves impression on the bullet in Exhibit 18A, showing the bullet has been fired from .38" caliber revolver Exhibit 1.

The deformed copper jacketed bullet in Exhibit 18C is a fired .38" caliber revolver bullet. This bullet (examined under comparison microscope) tally with test fired bullets from .38"

caliber revolver Exhibit 4, in respect of the number and widths of the lands and grooves, direction and extent of twist of rifling and characteristic striations on the lands and grooves impression on the bullet in Exhibit 18C, showing the bullet has been fired from .38" caliber revolver Exhibit 4.

The deformed copper jacketed bullet in Exhibit 18B is a fired .38" caliber revolver bullet. This bullet (examined under comparison microscope) tally with test fired bullets from .38"

caliber revolver (Exhibit 8), in respect of the number and widths

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of the lands and grooves, direction and extent of twist of rifling and characteristic striations on the lands and grooves impression on the bullet in Exhibit 18B, showing the bullet has been fired from .38" caliber revolver Exhibit 8.

Test firing in the laboratory on cloth targets done, kept at distance (touch firing, 6 inch, 2 feet, 1 meter and 2 meter) from muzzle end of revolvers and pistols Exhibit 1 to 8, the nature of shotholes on cloth targets and the shotholes on front side of full bush shirt Exhibit 19A and corresponding on sandow banian Exhibit 19C are consistent with the distance of firing is about 2 meter from revolver or pistol.

Remaining opinion please refer this office M.L.C. No. BL-938/08, BL-939/06 and BL-940/06."

(Emphasis supplied)

230 It is pertinent to note that PW86-Gautam Ghadge,

started analysis of the 19 articles of BL975/09 on 22nd December

2009 and concluded the analysis on 1st February 2010. He

prepared hand-notes Exh. 657 (Colly consisting of 20 pages), in

his own handwriting simultaneously, at the time of analysis; that

these hand-notes also bears the counter signature of Dr. (Ms.)

Deshpande (Dy. Director F.S.L Mumbai). PW86 also prepared

report at Exh.658 (colly.).

230.1 PW86 has, in his report, observed physical

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parameters, weight and indentation on the cap of Exh. 14 - (One

9 mm Pistol empty). From the evidence of PW86, it is evident

that he carried out microscopic comparison of empty Exh.l4 and

Test Exh.7 and found that the characteristic features of the firing

pin impression of Test Exh.7 tallied with Ex.14. It showed that

the empty Exh. 14 had been fired from Exh.7 - (9 mm caliber

pistol). Thus the empty found on the spot tallied (Art.23) with

the pistol of Tanaji Desai (A2).

230.2 PW86 has further in his report observed that

Exh.15A, 15B (two .38" revolver empties) and 18A (one

deformed copper, jacketed bullet) tallied with test fire of Exh. 1

(One six chambered .38" caliber revolver) i.e. revolver of Pradeep

Suryawanshi (A9). As noted earlier, A9 has admitted to firing on

the deceased.

230.3 PW86 in his report further observed that Exh. 16

(One .38" revolver empty) and Exh. 18C (one deformed copper

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jacketed bullet) tallied with test fire of Exh.4 (one six chambered

.38" caliber revolver) i.e. revolver of Dilip Palande (A15). As

noted earlier, A15 has also admitted to firing on deceased.

230.4 PW86 has further in his analysis observed the

description of Exh. 17 (one .38" revolver empty having

indentation on the cap and head stamp marking KF .380 2 98),

the physical parameters, weight of empty and head stamp of

empty. He has further observed that the characteristic features of

the firing pin impression, in addition to breech face marks, tally

with those on the .38" revolver cartridges fired from .38" caliber

revolver (Exh.8) thus showing the empty (Exh.17) has been fired

from the .38" caliber revolver Exh.8 (one six chambered .38"

caliber revolver). Thus, the empty produced by Arvind Sarvankar

(A22) tallied with Exh.8 (one six chambered .38" caliber revolver)

i.e. Art. 69-revolver of Pradeep Sharma (OA1).

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230.5 PW86 has in his report further observed that the

description of Exh. 18B (deformed copper jacketed bullet) having

rifling marks, physical parameters, weight and caliber .38" caliber

revolver bullet, number of available lands and grooves, 5L/5V,

width of land and grooves LW/GW. Angle of twist R.H.T. after

carrying out the microscopic comparison between Test Exh.8

(One Six chambered .38" caliber revolver) with Exh. 18B (one

deformed copper jacketed bullet). These, Exhibits tallies in

respect of the number and widths of the lands and grooves,

direction and extent of twist of rifling and characteristic striations

on the lands and grooves impression on the bullet.

231 Thus, according to PW86, the Test, Exh.8 (One Six

chambered .38" caliber revolver) tallied with Exh. 18B (one

deformed copper jacketed bullet). According to PW86, one of

the bullet retrieved from the body of the deceased tallied with

Exh.8 (One Six chambered .38" caliber revolver-Article 69)

Pradeep Sharma (OA1).

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232 The evidence of PW86 and the Ballistic Report also

shows that the deceased was fired at, from a distance of about 2

meters, whereas, as per C.R.No.302/2006, the distance was

around 40 feet.

233 As stated aforesaid, the prosecution has relied on the

evidence of the ballistic expert PW86-Gautam Ghadge, in support

of the evidence to show that the bullets retrieved from the

deceased's body revealed that the same were fired from A9, A15

and OA1's weapons.

234 It is pertinent to note that all the appellants/accused

have challenged the Ballistic Expert's Report, except A9 and A15.

A9 and A15 have not disputed that they fired at the deceased in

the genuine encounter, which took place on 11th November 2006.

235 It is also pertinent to note that though initially A11

and A22 accepted firing at the deceased in the genuine encounter,

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they retracted from the same, after receiving the Ballistic Report,

which revealed that the empty surrendered by A22 was fired from

OA1's service weapon; and the empty found at the alleged spot of

incident, near Nana Nani Park, allegedly fired from A11's

weapon was infact fired from A2's service weapon.

f. Law with regard to Ballistic Evidence/Forensic Evidence

236 Learned counsel for the appellants/accused submitted

that the Ballistic Expert's evidence is unreliable and that the

Ballistic Expert cannot be termed as an Expert, in view of what

has come in his cross-examination. It is submitted that the

evidentiary value of this witness needs to be viewed with caution

and care, and that implicit reliance cannot be placed on PW86's

evidence.

237 Mr. Ponda vehemently argued that PW86 was not an

expert, as is evident from his answers in the cross-examination.

He submitted that several discrepancies have come on record in

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the cross-examination of this so called expert witness, which

discrepancies have remained unexplained and as such, implicit

reliance cannot be placed on his evidence.

238 Per Contra, Mr. Chavan, learned Spl. P.P. and Dr.

Chaudhry submitted that the ballistic expert's evidence i.e. PW86

- Gautam Ghadge was unimpeachable, credible and was not

shattered, despite a grueling cross-examination. They submitted

that PW86's analysis shows that he has several years of experience

in the ballistic field and that there was nothing to doubt his

report, which clearly reveals the firing of a bullet on the deceased

from OA1's revolver (the said bullet was found embedded in the

deceased body).

239 Dr. Chaudhry relied on the following judgments, in

support of his submissions; (1) Leela Ram (dead) through Duli

Chand v. State of Haryana & Anr. 16 and (2) Sukhwant Singh v.

16 AIR 1999 SC 3717

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State of Punjab17.

240 It is pertinent to note, that the learned trial Judge has

accepted the Ballistic Expert's evidence and his report whilst

convicting the appellants-accused. The learned Judge in paras

1438, 1439 and 1475 observed that ballistic evidence shows that

the bullet produced by A22 was fired from OA1's revolver; has

ruled out tampering; that the ballistic evidence cannot be

challenged as PW86 was having sufficient experience in this field;

that weapons were deposited in a sealed condition; that weapons

have individual characteristics and that the fired bullets have been

compared with test fired bullets under microscope and that they

tallied; that it cannot be said that PW86 is not an expert or that

he did not follow procedure; and that PW86 had done proper

examination. Infact the learned Judge has even accepted the

evidence of the Ballistic Expert qua A15, however, observes that

OA1 cannot be implicated only on the basis of the ballistic

evidence, which is a weak type of evidence and his report that 17 (1995) 3 SCC 367

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OA1 fired from his weapon at the deceased and that the bullet

found in the deceased's body was the one fired from OA1's

weapon, however, acquitted OA1 by observing that this being the

only evidence qua OA1 and Ballistic Expert's evidence, being of a

weak type, cannot solely be relied upon without any

corroboration.

241 At this juncture, it would be apposite to consider the

probative value of a Ballistic Expert's Evidence/Report.

242 As far as the evidentiary value of ballistic evidence is

concerned, in para 16 of Leela Ram (supra), the Apex Court

observed as under:

"16. It is the above evidence which has prompted the High Court to ask the learned advocate appearing for the prosecution "to caricature any position in which a man can strike such an injury with a .12 bore gun ...". Whether there was one shot or two shots, can it not be termed to be immaterial in the matter of assessing the culpability of the accused? The son who saw his father had been shot at and thereafter fell dead -- total stunning effect on the son and it is on this score that mere hair-splitting on the available evidence ought not to be undertaken and instead the totality

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of the situation ought to have been reviewed. The empty cartridges were found and the ballistic expert's report that the cartridges match with the injury. The High Court ascribes this to be an immaterial piece of evidence. We, however, do not think so. The ballistic expert's evidence cannot be brushed aside since that is in the normal course of events, a valuable material vis-à-vis the use of the gun and the injury. The High Court went on to record the contradiction from the medical evidence but unfortunately the same does not find support from the evidence on record. Dr A.S. Chaudhary having done the post-mortem examination on the deceased Maman, has stated in his evidence that "Injuries 2, 4 and 5 are the exit wounds. Injuries 1 and 3 are the entry wounds". Dr Chaudhary further said that "Injury 1 is an entry wound of point-blank range". The doctor has been subjected to cross-examination and he at the end of it all said that: "It can be said that the injuries on the person of the deceased were the result of one shot". It is on this count, the High Court recorded that Dr Chaudhary "had also to agree to this position". (emphasis supplied) Needless to say that the doctor probably has not been able to match the cross-examining lawyer and there was thus an unequal duel between the medical man and a refined lawyer. Can it be said that by reason of the evidence of Dr Chaudhary the contradictions are galore in nature, so far as the evidence of Leela Ram is concerned -- the High Court upon consideration of the factum of such a contradiction answers the same on a positive note. This however is not acceptable to this Court: the discrepancy does not seem to be of such a nature so as to effect the creditworthiness or the trustworthiness of the witness. As a matter of fact, it does not do so by reason of the fact that Maman fell a victim of gunshot injuries and died: it is immaterial as to whether one or two gunshots were fired -- the contradiction at its highest

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cannot but be stated to be in regard to a minor incident and does not travel to the root of the nature of the offence. The other piece of evidence is that the Sarpanch and the members of the Village Panchayat saw the accused running away towards Village Aharwan just after firing with his gun."

(emphasis supplied)

243 The Apex Court in Sukhwant Singh v. State of Punjab18,

in Para 21, has observed thus :

"21. There is yet another infirmity in this case. We find that whereas an empty had been recovered by PW 6, ASI Raghubir Singh from the spot and a pistol along with some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution, for reasons best known to it, did not send the recovered empty and the seized pistol to the ballistic expert for examination and expert opinion. Comparison could have provided link evidence between the crime and the accused. This again is an omission on the part of the prosecution for which no explanation has been furnished either in the trial court or before us. It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent."

18 (1995) 3 SCC 367

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244 It is apposite to reiterate the observations made by the

Apex Court in the case of Ravi Sharma v. State (Government of

N.C.T. of Delhi & Anr.)19, particularly para 19, which reads thus:

"19. The report of the ballistic expert is obviously a scientific evidence in the nature of an opinion. It is required to use this evidence along with the other substantive piece of evidence available. The report is inconclusive with respect to the firearm belonging to the appellant being used for committing the offence."

245 Considering the aforesaid, it is clearly evident that

ballistic evidence cannot be lightly brushed aside nor can it be

termed as a weak piece of evidence. Thus, the observation of the

learned Judge that the ballistic evidence is of a weak type, is

erroneous. We have gone through the evidence of PW86 in detail.

We find that PW86 is an expert in the Ballistic field, having

experience of over 20 years in the said field. We find that

despite a grueling cross-examination of this witness, his evidence

has not been shattered. We find that PW86 has meticulously

evaluated the material before him and thereafter, after making his

notes, has arrived at his conclusion. As noted aforesaid, even the 19 (2022) SCC OnLine SC 859

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trial Court has accepted PW86's evidence and ballistic report vis-

a-vis firing by A9, A2, A15 and OA1, (bullets retrieved from the

dead body were found to have been fired from OA1, A9 and

A15's service weapons and the empty found on the alleged spot

of incident i.e. Nana Nani Park allegedly fired from A11's

weapon, was found to have been fired from A2's service weapon)

but states that the said evidence being of a weak type and this

being the only evidence qua OA1, there being no corroboration

to the said evidence, unlike others, acquitted OA1. Apart from

the ballistic evidence, there is other evidence to connect OA1 to

the crime in question, which we will discuss while considering the

Appeal against Acquittal of OA1. Suffice to state, that the

prosecution has proved through cogent, legal and admissible

evidence of PW86 and other evidence that Ramnarayan was shot

at, by OA1, A2, A9 and A15 from a close distance. The Ballistic

report has, thus been proved by the prosecution.

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246 We now proceed to deal with next circumstance

relied upon by the prosecution i.e. of wrongful confinement of

Anil Bheda.

v. WRONGFUL CONFINEMENT OF ANIL BHEDA

247 According to the prosecution, Anil Bheda alongwith

Ramnarayan was picked up by the police from Sector 9, Vashi on

11th November 2006; taken to D.N. Nagar Police Station;

thereafter, on 12th November 2006, Anil Bheda was brought to

the Vashi Police Station, Navi Mumbai at 17:00 hrs., pursuant to

which, Aruna Bheda (PW40) withdrew her missing complaint;

then Anil and Aruna Bheda were taken to their house and from

there to Bhatwadi, Ghatkopar, where Anil Bheda's in-laws were

residing; thereafter, all three i.e. Anil, Aruna and their son-Parth,

were taken to Kolhapur and after return from Kolhapur, Anil

Bheda was taken to Hotel Mid-Town, Andheri. It is the

prosecution case that throughout the said journey i.e. from 11 th

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November 2006 from the time Ramnarayan and Anil Bheda were

abducted, Anil Bheda was kept in wrongful confinement till

around 12th December 2006, by the appellants/accused.

248 In order to prove confinement of Anil Bheda,

Mr. Chavan, learned Spl.PP relied on the evidence of PW40 -

Aruna Bheda; PW32 - Sumant Bhosale; PW55 - Milind More;

PW43 - Madan More; PW45 - Naresh Phalke and the evidence

of PW52 - Purba Bhattacharya. It is submitted that the said

evidence is also corroborated by their CDRs.

249 Learned counsel for the appellants-accused submitted

that the evidence adduced by the prosecution suffers from several

infirmities and that none of the aforesaid witnesses i.e. PW32 -

Sumant Bhosale; PW55 - Milind More; PW43 - Madan More

and PW45 - Naresh Phalke, can be relied upon considering that

there are no station diary entries made by any of these witnesses

whilst leaving D.N. Nagar Police Station or of their return.

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Learned counsel for the appellants - accused further submitted

that the prosecution had failed to bring on record the hotel

Register to show that Aruna Bheda and Anil Bheda were kept in a

hotel at Kolhapur and thereafter, Anil Bheda was kept at Mid-

Town Hotel, Andheri. It is submitted that not a single witness

from the said hotels i.e. at Kolhapur and Mid-town have been

examined by the prosecution to substantiate the circumstance vis-

a-vis confinement of Anil Bheda and as such reliance cannot be

placed on the said circumstance. It is also submitted that

evidence of PW40 - Aruna Bheda cannot be relied upon,

considering her belated statements and the inconsistencies in her

evidence.

250 Per Contra, Mr. Chavan, learned Spl.PP, submitted

that the prosecution has duly proved that Anil Bheda was

wrongfully confined by the appellants/accused from 11 th

December 2006 to 12th December 2006, so that Anil Bheda does

not spill the beans, since Anil Bheda was a witness to the

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abduction and what happened on 11th November 2006.

251 Considering the aforesaid, we now proceed to

examine the evidence that has come on record vis-a-vis 'wrongful

confinement of Anil Bheda'.

252 PW40 - Aruna Bheda has deposed with respect to the

confinement of Anil Bheda at Bhatwadi, Ghatkopar, then

Kolhapur and then at Mid-Town Hotel, Andheri.

252.1 PW40 is the wife of Anil Bheda. She has stated that

she was living with her husband Anil Bheda and son Parth in

Sector 29, Vashi, at the relevant time and that her son was

studying in St. Mary's School. PW40 in her evidence has deposed

with respect to the events that took place on 11 th and 12th

November 2006. We have spelt out the said evidence in detail

whilst dealing with the circumstance of 'abduction' and hence, do

not wish to repeat the same. We, whilst considering the said

circumstance, have also set out how a missing complaint of her

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husband was filed by Aruna Bheda on 11th November 2006.

252.2 According to PW40, on 12th November 2006, at

about 14:30 hrs., she called her brother-in-law Dheeraj and

informed him about the missing complaint lodged by her and

asked him to help her, since she was alone. She has stated that she

went back to the police station at 17:00 hrs. alongwith her

brother-in-law and his wife; that she went alone in the police

station; that whilst she was waiting, her husband Anil Bheda came

to the police station; that she asked him where he had gone, to

which, he replied that he had gone to Shirdi; that at that time,

Senior Officer D. B. Patil came there and took them to his cabin

and made inquiries with her and her husband Anil and recorded

their statements. PW40 has stated that she was shown one fax (of

abduction of Ramnarayan and Anil Bheda sent by her) by D. B.

Patil and that D. B. Patil inquired whether she had forwarded the

said fax; that she told him that she cannot read and write English

and that she had not sent the same; that she was asked to meet

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the police constable and was asked to withdraw the missing

complaint. Accordingly, PW40 - Aruna withdrew the missing

complaint by affixing her signature on the same (Exh. 307). She

has stated that when she came outside the police station, she

informed about their well being to her brother-in-law and his wife

and asked them to leave. She has stated that her husband Anil

informed her as to what had happened on 11 th November 2006.

We have set out the disclosure made by Anil Bheda to her, whilst

considering the circumstance of abduction and as such, refrain

from spelling out the same again. She has stated that her husband

showed her one Qualis vehicle and told her that they would have

to go home in the said Qualis vehicle, pursuant to which, she and

her husband sat in the said vehicle; that there were two police in

plain clothes in the said vehicle; that they went to their residence

in the said vehicle; that she and her husband and the said two

plain clothes policemen came to her house; that she and Anil

took Parth and some clothes and again sat in the said Qualis

vehicle and went to her parent's house at Bhatwadi, Ghatkopar.

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She has further stated that the two policemen also came with

them inside her parent's house and that the said plain clothes

police examined the house and locked the rear door from inside.

PW40 - Aruna has further stated that two other constables came

for night shift to Bhatwadi and that after the two constables

arrived, the earlier two police left the house and that the night

shift constables were sitting in the outer room of the house of her

parents and that since the Qualis vehicle was parked in front of

the neighbour's house, there was a quarrel between the

neighbours and her parents. She has further stated that the

earlier two policemen again returned on the next day between

9:30 - 10:00 hrs and started to take Anil away; and that on

inquiry, she was told that they were taking Anil to D.N. Nagar

Police Station. PW40 - Aruna has identified the said two plain

clothes policemen with whom she had gone to her house (Vashi)

and then to Bhatwadi and who returned the next day morning, as

A2 - Tanaji Desai and A3 - Ratnakar Kamble @ Rattu, as being

the plain clothes policemen. She has also stated that the said

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policemen gave her their mobile numbers and told her, that if she

wanted to talk to her husband, she could call XXXXXX1323 of

A2 and XXXXXX3457 of A3. PW40 noted down the said

numbers in her diary. PW40 has stated that her husband returned

home at 18:30 hrs. in the same Qualis vehicle; that he disclosed

to her that he was going out for some period; that she and her

parents told Anil that they would not permit him to go alone and

that she (Aruna) and her son would accompany him; that the

persons who had come along consented for the same; that

pursuant thereto, she, her son and her husband - Anil went to

Kolhapur in the same Qualis vehicle; that on the way, the said

Qualis vehicle stopped between Santacruz and Vakola and one

person got down from the said vehicle and went running to his

house and brought his clothes. She has stated that apart from

three of them i.e. she, her son and her husband Anil, one more

person was present and that the person sitting next to driver, got

down from the vehicle and went to his house to bring his clothes.

She has stated that thereafter, they went to Sion and from Sion

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took the Konduskar bus and went to Kolhapur; that they reached

Kolhapur on 14th November 2006 at about 18:00 hrs and stayed

in a hotel opposite the place where they alighted from the bus.

PW40 has stated that the person who had come with them stayed

in another room and that the person who accompanied them was

A5 (Hitesh Solanki @ Dhabbu). PW40 - Aruna has identified the

said accused. She has further stated that at about 10:00 - 10:30

hrs, she, her husband and her son alongwith A5 took darshan of

Goddess Mahalaxmi, where they met a constable from Vashi

Police Station. She has stated he was the same constable who had

come to her house to take the photograph. She has stated that

thereafter, her husband and A5 went to the Court at Battis Shirala

(Sangli), where a case was pending against her husband, whereas,

she and her son stayed in the hotel. She has stated that she was

informing about her well-being to her parents on telephone; that

they were in Kolhapur for 4 - 5 days and thereafter, all of them

returned to Ghatkopar, in a Konduskar bus. According to PW40

- Aruna, after some time, her husband and A5 went to D.N.

S.Q. Pathan / N.S. Chitnis 522/867

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Nagar Police Station, from where she received a telephone call

from her husband, that as there was danger to his life, he could

not return home and that he would reside in a hotel at Andheri

(West). She has stated that she was asked to contact him on the

mobile of A2 and A3. She has stated that during the said period,

she was residing at Ghatkopar with her parents. PW40 - Aruna

Bheda has further stated that her son was studying in a school at

Vashi and that during the said period, her son was absent from

school. According to PW40, her husband returned in December.

After 2-3 days, they returned to their house at Vashi on 15 th

December 2006. She has stated that thereafter, they received a

call from A5, who asked them to leave the said place. She has

stated that since their son was studying in the said area, they

refused to vacate the premises, however, they were asked to

change the area. PW40 - Aruna Bheda has further stated that

pursuant thereto, on 31st December 2006, they shifted from their

earlier premises to J N 2/21, Mahalaxmi Society, Vashi.

S.Q. Pathan / N.S. Chitnis 523/867

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252.3 PW40 was confronted with Exh.335 in her cross-

examination. She has categorically stated that she had not

prepared the affidavit and that she did not disclose in Exh. 335

that she along with her husband, had gone to Versova Police

Station to withdraw the missing complaint. Certain portions of

the said affidavit were marked, with which she was confronted.

She has denied stating so or that the contents therein i.e. Exh.335

were true and correct. She has also denied the suggestion that

she, nor her husband-Anil Bheda had got prepared the said

affidavit (Exhibit 335) from their advocate.

252.4 PW40 in her re-examination has deposed to with

respect to A5 handing over a prepared affidavit to her i.e. Exh.

335 to be tendered before the learned Metropolitan Magistrate,

who was conducting the inquiry. The contents of the said exhibit

were that Anil Bheda had gone to Shirdi (contrary to the

prosecution case vis-a-vis abduction of Anil Bheda). No doubt,

A5 has not cross-examined PW40, however, learned counsel for

S.Q. Pathan / N.S. Chitnis 524/867

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OA1 has cross examined PW40, with respect to what was

disclosed to by PW40 i.e. of A5 handing over to her a prepared

affidavit (Exh. 335). There is nothing in the cross, which would

want us to disbelieve PW40, in the facts, vis-a-vis A5, handing

over her affidavit (Exh. 335) for tendering it before the

Metropolitan Magistrate, in the inquiry.

PW32 - Sumant Ramchandra Bhosale on wrongful confinement of Anil Bheda at Bhatwadi, Ghatkopar.

253 As far as the evidence of confinement of Anil Bheda is

concerned, the prosecution has also relied on the evidence of

PW32 - Sumant Bhosale. PW32 was attached to D.N. Nagar

Police Station at the relevant time, as a Police Naik in the

Detection Branch. The Detection Branch was headed by Crime

PI and that in 2006, A9 was PI - Crime. He has stated that OA1

was transferred to D.N. Nagar Police Station and that he

alongwith his staff was occupying the old duty officer's room,

whereas, the new room constructed in the very same compound

S.Q. Pathan / N.S. Chitnis 525/867

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was used by the duty officer. He has stated that the staff of OA1

was deputed from other police stations. He has stated that OA1

and his staff were not doing any work of D.N. Nagar Police

Station and were not participating in the activities of the D.N.

Nagar Police Station. He has stated that in the staff of OA1, there

were A3 - Ratnakar Kamble @ Rattu and A2 - Tanaji Desai. He

has identified the said witnesses.

253.1 PW32 has deposed that on 12th November 2006,

when he returned to the police station between 21:00 to 21:30

hrs, after patrolling, he was called by PI Crime (A9) and was told

to accompany one constable to Mid-Town hotel, opposite

Andheri Railway Station. Pursuant thereto, he alongwith Milind

More (PW55) left for Mid-Town Hotel, however, they were again

called back by A9 and were told by A9 to sit in a green Qualis

Vehicle which was standing opposite OA1's office. PW32 has

further deposed that he alongwith Milind (PW55) went towards

the Qualis vehicle which was a private vehicle and was used by

S.Q. Pathan / N.S. Chitnis 526/867

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the squad of OA1; and that one person was driving the said

vehicle and Virendra @ Viru (neither an accused nor a witness)

was sitting next to the said driver. He has stated that at about

10:30 hrs, they went to Bhatwadi, Ghatkopar in the said vehicle;

that there were chawls next to the road; that they were taken to

one of the houses in the said chawl; that the members of the

squad of OA1, i.e. A2 and A3 were present there; that the said

persons took them to one house and introduced them to one

person by name Anil and told them that the said person was of

great use to OA1; that they were told that the said person had

fear from Chhota Rajan Gang and were asked to stay to guard

Anil; that the green colour Qualis was parked opposite the said

house; that at about 23:30 hrs, A2 and A3 and Virendra (not an

accused) left and he and constable Milind (PW55) stood as night

guards, till 9:30 hrs. on the next day; that on 13 th November

2006 at about 9:30 hrs. A2, A3 and Virendra @ Viru came there

and alongwith Anil sat in a green colour Qualis and all of them

went to D.N. Nagar Police Station; that Anil was sitting in the

S.Q. Pathan / N.S. Chitnis 527/867

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back seat of the vehicle; that after the vehicle reached D.N. Nagar

Police Station, he and Milind (PW55) alighted from the said

vehicle and proceeded to the Detection Crime Branch, whereas

A2, A3 and Virendra @ Viru were in the said vehicle. He has

stated that his statement was recorded by SIT on 2 nd February

2010 and that on 4th February 2010 he was called to SIT office at

Powai and that one person was shown to him. The said witness

has identified that person (Anil Bheda) as the same person for

whom they had gone to Bhatwadi, Ghatkopar.

253.2 The crux of the cross-examination of this witness is

that there are no station diary entries with respect to him leaving

the police station or returning back. The said witness has

admitted that there is no station diary entry of his either going to

Bhatwadi or of his return from Bhatwadi and that there was no

document available in the police station to show that on 11 th

November 2006, he alongwith A2, A3 and Virendra @ Viru had

gone to Ghatkopar alongwith PW55 in a green Qualis vehicle. In

S.Q. Pathan / N.S. Chitnis 528/867

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his cross-examination, PW32 has further admitted that it was

true, that no police officer can form his own investigating team

without consultation of Sr. PI or DCP or ACP and if such a

investigating team is formed, without such consultation, memo

and disciplinary inquiry can be initiated against the officer. He

has further admitted that only by orders of DCP can a police

officer or constable be transferred from one police station to

another police station while investigating a case and that the

police officer investigating a case cannot on his own, call for any

other police constable of other police station. He has also

admitted that private vehicles can be used by the Police Officer

for investigation to maintain secrecy or other such reason only

with permission of Sr. PI or ACP or DCP. He has denied the

suggestion that entries regarding private vehicles used with

permission of Sr.PI/ACP/DCP is maintained by Sr. PI and or said

officer. He has stated that he had not maintained vehicle

register/log book in the police station, at any time, nor, had he

used any private vehicle during investigation. He has further

S.Q. Pathan / N.S. Chitnis 529/867

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stated that the person at Ghatkopar did not identify himself as

Anil. According to PW32- Sumant Bhosale, he had disclosed to

SIT that Viru used to visit OA1's office regularly.

253.3 PW32 - Sumant Bhosale has further stated that

he knew A2 and A3 as they had joined on deputation and that it

was true to say that they had joined D.N. Nagar Police Station on

deputation. Although, suggestion was put to the said witness that

he had not gone to any house in any vehicle on 12 th November

2006 and that Viru was not present with him in the said vehicle

and nor were A2 and A3 present in the said vehicle, the said

suggestions have been denied by PW32.

253.4 An omission with respect to A9 calling PW32 -

Sumant Bhosale and asking him to sit in a green colour Qualis,

has been brought on record. The omission pertains to A9. The

said witness has denied the suggestion that it was not true that

A9 did not give any direction on 12th November 2006.

S.Q. Pathan / N.S. Chitnis 530/867

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PW55 - Milind Subhash More on wrongful confinement of Anil Bheda at Bhatwadi, Ghatkopar.

254 PW55 was attached to the Detection Branch, D.N.

Nagar Police Station, Mumbai, as Police Constable at the relevant

time. PW55 in his evidence has stated that on 12 th November

2006, he was on night duty in the police station i.e. D.N. Nagar

Police Station. He has stated that at about 9:30 hrs, Police Naik

Sumant Bhosale (PW32) told him that A9 had asked the two of

them to go to Mid-Town Hotel, opposite Andheri Railway Station

(W); that pursuant thereto, he took a pistol and five rounds from

District Hawaldar and put his signature in the register, after the

District Hawaldar-Khatal made an entry in the said register. He

has identified the relevant entry made, which is at Exh. 467. He

has stated that while he was in the compound of the police

station, he and Sumant Bhosale were called back; that PW32 -

Sumant went inside the police station and on returning, told him

to sit in a green colour Qualis vehicle; that Sumant also sat in the

said vehicle; that the said Qualis was being used by the squad of

S.Q. Pathan / N.S. Chitnis 531/867

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OA1 - Pradeep Sharma; that the said vehicle used to remain

outside the office of OA1. He has stated that there were total

four persons in the vehicle alongwith him and Bhosale i.e. a

driver and Virendra, who used to work for OA1 and who was not

from the Police Department. He has stated that there was one

more person who used to work for OA1 and that the said person

i.e. Hitesh Solanki @ Dhabbu (A5) used to be outside the office

of OA1 and would take outsiders to meet OA1, after making

inquiry.

254.1 According to PW55, he alongwith PW32 - Sumant

and others were taken in a Qualis vehicle to Bhatwadi,

Ghatkopar; that they reached Bhatwadi at about 10:30 hrs.; that

the vehicle stopped in front of a house situated by the side of the

road; that A2 and A3 were present in the said house; that A2 and

A3 were working in the squad of OA1. He has stated that A2

and A3 introduced him and Sumant (PW32) to one Anil and both

told them, that there was danger to Anil Bheda from Chhota

S.Q. Pathan / N.S. Chitnis 532/867

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Rajan Gang and hence, asked them to keep a watch; and that Anil

was OA1's man. PW55 has further stated that after ½ an hour,

A2, A3, Viru and Driver went away and the Qualis vehicle was

parked near the footpath in front of the said house (Bhatwadi)

and that he and PW32-Sumant remained in the varanda of the

said house for the whole night; that on 13 th November 2006 at

around 9:30 hrs. to 10:00 hrs, A2 and A3 returned to Bhatwadi,

pursuant to which they got into the said vehicle. He has stated

that he, PW32-Sumant, A2, A3, Viru and Anil got into the said

Qualis vehicle and went to D.N. Nagar Police Station. He has

stated that when they reached D.N. Nagar Police Station, he and

PW32-Sumant got down from the said vehicle and went to the

police station, whereas, the others remained in the vehicle.

254.2 In his cross-examination, in para 35, PW55 has stated

that he had not spoken to the person i.e. Anil Bheda, at Bhatwadi;

that even on the next day, there was no talk with the said person;

that, that person's family members were present in the house and

S.Q. Pathan / N.S. Chitnis 533/867

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that the said person was free throughout the drive from his

house; and that his movements were not restricted during the

course of his duties. He has admitted in his cross-examination

that it was correct to say that the said person was doing his own

work and he was watching the said person; that he did not call

any one from his phone and that there was no phone in the said

room and that he did not place any order. PW53 has in his cross,

stated that during his duty on those two days, he did not ask the

person (Anil Bheda) his full name; that the said person also never

disclosed to him that he and his friend were kidnapped and that

his friend was killed, and as such, he did not feel that the said

person was forcefully confined.

255 The aforesaid evidence of PW40, PW32 and PW55 is

duly corroborated by each other. The evidence of the said

witnesses will reveal that Anil was wrongfully confined by A2, A3

and A5 at Bhatwadi, at Anil's father-in-law's residence.

S.Q. Pathan / N.S. Chitnis 534/867

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256 No doubt, there are no entries made by PW32 of

leaving D.N. Nagar Police Station whilst going to Bhatwadi and

of his returning, but one will have to examine the same having

regard to the fact, that the said witness was a constable and was

directed by his superior i.e. Pradeep Suryawanshi (A9) to go to

Bhatwadi. There is no reason to disbelieve the testimony of these

witnesses with respect to confinement of Anil Bheda at Bhatwadi.

As far as PW55 is concerned, it appears that he took a pistol and

five rounds from District Hawaldar, who in turn, made a Station

Diary Entry to that effect (Exh. 467). Infact, PW55 has denied

the suggestion that there was no entry in the diary dated 12 th

November 2006 regarding his visit to Ghatkopar. PW40 - Aruna

Bheda in her evidence has also deposed with respect to the

confinement of Anil Bheda at her parent's place at Bhatwadi by

the police. The aforesaid evidence is also duly corroborated by

the CDRs' of A2 and A3, which we will deal with, whilst dealing

with the circumstance of 'CDR', which shows their presence at

Bhatwadi, Ghatkopar, as deposed to by the witnesses.

S.Q. Pathan / N.S. Chitnis 535/867

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PW40-Aruna Bheda-on wrongful confinement of Anil Bheda at Kolhapur.

257 As noted above, Anil Bheda, PW40 - Aruna and their

son Parth accompanied Anil from Bhatwadi to Kolhapur on

being permitted to do so. In this connection, prosecution has

examined PW40 - Aruna Bheda. PW40 - Aruna Bheda in her

evidence has categorically stated the manner in which she

alongwith her husband and son were taken from Bhatwadi by

Konduskar bus to Kolhapur by A5. It is pertinent to note that the

evidence of PW40 inspires confidence with respect to her, Anil

and her son being taken to Kolhapur. Admittedly, after 11 th

November 2006, Anil Bheda's number was switched off and as

such there are no CDRs thereafter.

258 Although, learned counsel for the appellants-accused

submitted that PW40 freely moved around in Kolhapur and even

visited the temple and as such, it cannot be said that they were

S.Q. Pathan / N.S. Chitnis 536/867

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being confined, it is evident from PW40's evidence that Anil

Bheda went to the Court at Battis Shirala, for a court hearing

alongwith A5. Thus, Anil was always under the watchful eyes of

one or the other accused.

259 The evidence of PW40 would reveal that she, her

husband Anil and son were brought back from Kolhapur by

Konduskar bus to Mumbai and thereafter, her husband Anil was

taken to Mid-town Hotel, Andheri where she was in touch with

her husband on the mobile numbers of A2 and A3. The CDR

evidence also supports the calls made by PW40 on A2 and A3's

mobile. In connection with confinement of Anil Bheda at Mid-

town Hotel, Andheri from 19th November 2006 to 12th December

2006, the prosecution relied on the evidence of PW55 - Milind

More, PW43 - Madan More and PW45 - Naresh Phalke.

PW55 - Milind Subhash More (on confinement of Anil Bheda at Mid-Town Hotel, Andheri).

S.Q. Pathan / N.S. Chitnis 537/867

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260 PW55 - Milind More, who had also accompanied

PW32 to Bhatwadi, Ghatkopar to guard Anil was also sent on

night duty after a few days by the orders of A9 alongwith Naresh

Phalke (PW45) to Mid-town Hotel, Andheri Railway Station.

PW55 - Milind More in para 14 of his evidence has stated that by

the orders of A9, he and PW45-Naresh went to Hotel Mid-town

Hotel near Andheri Railway Station (W) and that one police

personnel Mr. Devidas Sakpal (A13) from D.N. Nagar Police

Station, met them at Hotel Mid-town. He has identified A13.

He has stated that A13 took them to one room on the second

floor of the said hotel; that there was one person, whom he and

Sumant (PW32) met, when they had gone to Ghatkopar; that his

name was Anil. PW55, has further stated that A13 introduced

him and PW45-Naresh to Anil and that he and PW45-Naresh

remained in the said room for the whole night to keep a watch on

Anil, at the say of A13. He has stated that after A13 went, he and

PW45-Naresh remained their upto 9:30 hrs. to 10:00 hrs. of the

next day. He has stated that on the next day at about 9:30 hrs. to

S.Q. Pathan / N.S. Chitnis 538/867

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10:00 hrs, A13 came there alongwith Viru, after which, he and

PW45-Naresh returned to the police station. PW55 has identified

the photograph of Anil (Exh. - 308).

260.1 In his evidence, PW55 has stated that he was called by

SIT on 19th March 2010 at about 18:00 to 19:00 hrs, in a room

on the 2nd floor of Hotel Mid-town, pursuant to which he went

there; that DCP Prasanna, Officers from SIT and his associate

PW43-Madan More, Anil and panchas were present in the room;

that Mr. Prasanna (PW110) made inqury as to in which room of

2nd floor of Hotel Mid-town, they stayed; and that pursuant

thereto, he showed room No.204 to him, in the presence of

panchas. PW55 has further stated that initially he had gone to

Mid-town Hotel and stayed in room No.204 with Anil Bheda.

260.2 It is pertinent to note that there is no cross-

examination of this witness with respect to what was deposed to

by him, that he had gone to Mid-town hotel and had stayed in

S.Q. Pathan / N.S. Chitnis 539/867

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room No.204 with Anil Bheda. The said witness has admitted

that there is no station diary entry with respect to his leaving the

police station or returning back to Mid-Town, though the same is

required. He has stated that his duty on those two days, was in

the capacity of police personnel. He has further admitted that

except his statement, there is no other proof to show in the form

of the entry in the diary or even personal diary of having gone on

duty on 19th November 2006. In his cross-examination PW55

has admitted that he did duty at Ghatkopar as well as at Mid-

town Hotel in plain clothes. He has stated that as he was attached

to the Detection Branch, he was not required to wear uniform

and that PW45-Naresh and PW32-Sumant were also not wearing

uniform, as they were attached to the Detection Branch. He has

stated that even A13, who met him was in plain clothes.

260.3 PW55 further in his cross-examination has admitted

that he did his duty in Hotel Mid-town only for one night in

room No.204 and that he, PW45-Naresh and that person slept in

S.Q. Pathan / N.S. Chitnis 540/867

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the said room; that he went on duty and remained on duty upto

next day morning, till he was relieved. He has stated that he did

duty only of room No.204 and as such cannot assign any reason

why in his statement before the police he had stated that he did

duty in room Nos.202 and 204. He has stated that he did not

disclose the said room numbers before SIT till 19 th March 2010,

till his statement was recorded.

260.4 Suggestions made to this witness, that he never did

any duty at Bhatwadi, Ghatkopar and Hotel Mid-town or that he

was pressurised by his superior officers to give a statement as per

their wish, have been denied by him. He has also denied the

suggestion that he did not go to Ghatkopar or to Mid-town hotel,

at any time. He has further admitted that if any police personnel

from D.N. Nagar Police Station was required to go outside the

jurisdiction of D.N. Nagar Police Station, he had to inform the

Senior P.I; that it was correct to say that every member of the

Detection Branch had to make an entry on his own in the said

S.Q. Pathan / N.S. Chitnis 541/867

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diary with respect to his movement; that on 12 th November 2006,

he did not make an entry in the said diary as the said diary was

not kept in the Detection Branch. He has stated that the diary

was maintained in the branch one year after he resumed his duty

in the Detection Branch.

261 Although there are certain minor omissions, the same

do not go to the root of the matter, considering the

overwhelming evidence with respect to wrongful confinement of

Anil Bheda, that has come on record i.e. the evidence shows that

PW55 had gone to Bhatwadi on 12 th November 2006 and

thereafter to Mid-town Hotel; and that PW55, a constable had

acted on the directions of his superior i.e. A9 who was a PI at the

relevant time. PW55 has further stated that he personally did not

inform the Crime PI or Sr. PI, that a civilian stayed outside the

office of OA1, as everyone was aware of it and as such, personally

he did not feel it necessary to produce the said civilian A5 before

the Sr. PI. He has denied the suggestion that he had never seen

S.Q. Pathan / N.S. Chitnis 542/867

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A5 outside the office of OA1 or that the said person was called

Dhabbu or he was deposing falsely about Dhabbu. He has also

denied the suggestion that he was deposing falsely that he had

met A13 at Hotel Mid-town and that A13 had taken him to the

2nd floor of Mid-town Hotel and that he and PW45 - Naresh had

stayed in the hotel, at the say of A13 and that A13 came to meet

them at Hotel Mid-town on the following day.

PW45 - Naresh Namdeo Phalke on confinement of Anil Bheda at Mid-town Hotel.

262 PW45 was examined by the prosecution to prove

confinement of Anil Bheda at Mid-town Hotel. PW45 was

attached to D.N. Nagar Police Station at the relevant time as

Police Constable and in November 2006, was attached to the

Detection Branch of the said police station. He has stated that A9

was in-charge of Crime Branch of the said Police Station whereas

OA1 was in-charge of the squad and was not doing any work of

the police station. According to PW45, on 11 th November 2006,

S.Q. Pathan / N.S. Chitnis 543/867

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when he was working in night shift, he and PW55-Milind were at

the police station. He has stated that he was directed by A9 to go

to Mid-town hotel near Andheri Railway Station (West) and

hence, he went to the said hotel, where he met A13-Devidas

Sakpal outside the said hotel. He has stated A13 was working at

the D.N. Nagar Police Station. According to PW45, A13 took

him to one room on the 2 nd floor of the said hotel, where one

Gujarati person was present and that they were asked to stay with

the said person, pursuant to which, he and PW55-Milind stayed

there the entire night. PW45 has further deposed that he spoke

to the said person who, during the talk, disclosed that his name

was Anil. He has further stated that at about 10:00 - 10:30 hrs

on the next day, A13 came to the room and that after some time,

Virendra also came to the room, after which he and PW55-Milind

went to the police station. He has further stated that when SIT

was making inquiry, he was shown one person on 6 th March

2010 and that the said person was the same Anil who was in Mid-

town hotel and accordingly, he learnt that the full name of Anil,

S.Q. Pathan / N.S. Chitnis 544/867

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was Anil Jethalal Bheda. He has identified the photograph of Anil

(Exh. - 308) and as such has stated that he was same person who

was at the hotel.

262.1 The cross-examination of PW45 was also on similar

lines i.e. no entries were made in the station diary by the said

witness regarding the purpose of leaving the police station. The

said witness has admitted that no such station diary entry was

made while going to Mid-town Hotel. He has further admitted

that he did not inform the Duty Officer of the police station that

he slept in Mid-town hotel the entire night or that he had met

A13. He has further admitted that he did not make any inquiry

as to why the said person was kept in the said room in the hotel

nor did he verify, if any entry was made in the hotel register. He

has further admitted that the said Anil was not under any restraint

and that when he went to the room, he was alone. He has denied

the suggestions that he was falsely deposing that he had gone to

Mid-town Hotel with PW55-Milind on the directions of A9, and

S.Q. Pathan / N.S. Chitnis 545/867

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stayed with Anil; and that he had identified Anil on 6 th March

2010 on the say of DCP Prasanna, as he was afraid that DCP

Prasanna would spoil his C.R report.

262.3 In his cross-examination, PW45 has further admitted

that he did not inform his name and details to the Receptionist of

Mid-town Hotel; nor did he inform the receptionist that they

were staying in the room for the entire night nor did he make any

entry in the hotel register about his staying in the hotel. PW45

has denied the suggestions that he did not meet A13 in Mid-town

hotel; or that he did not have any conversation with A13; or that

A13 did not take him to the room in the hotel. He has admitted

that he did not make any entry/note in writing about his visit and

meeting with A13 in the station diary nor had he disclosed the

same to any police officer.

263 The aforesaid evidence of all the witnesses inspires

confidence and clearly shows that Anil Bheda was confined by the

S.Q. Pathan / N.S. Chitnis 546/867

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police from 11th November 2006 till about 12th November 2006

at D.N. Nagar Police Station, then taken to Vashi Police Station

by A2 and A3 and after the missing complaint was withdrawn by

PW40-Aruna, was taken to his house and from there, Anil,

PW40-Aruna and son Parth were taken to Bhatwadi, Ghatkopar,

to Anil Bheda's in-laws house, from there on the next day i.e.

13th, Anil was taken to D.N. Nagar Police Station, and from there

again Anil, PW40-Aruna and Parth to Kolhapur, and on returning

from Kolhapur, after 3 to 4 days, Anil was confined at Mid-Town

Hotel till around 12th December 2006.

264 The aforesaid evidence of the witnesses has been duly

corroborated by the Nodal Officers who were examined by the

prosecution to show the presence of the said accused at the places

where Anil was detained. We will deal with the said evidence of

CDR, when we deal with the circumstance of CDR.

S.Q. Pathan / N.S. Chitnis 547/867

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265 Suffice it to say, that there is nothing on record to

disbelieve the testimony of the aforesaid witnesses with respect to

wrongful confinement of Anil as stated aforesaid. It is obvious

that PW32, PW55 and PW45 were all working under A9 in the

Detection Branch. They were sent by A9, their superior. As has

come on record in the evidence of PW55, there was a separate

diary kept in the Detection Branch. Despite extensive cross-

examination of the aforesaid witnesses, nothing is elicited in their

cross-examination, to disbelieve their testimony or discredit them.

The evidence on record clearly reveals that from the time of

abduction of Ramnarayan and Anil Bheda on 11 th November

2006 at around 12.35 pm, Anil Bheda was wrongfully confined

by the accused till around 12th December 2006. Evidence shows

that Anil Bheda was prevented from proceeding beyond certain

limits i.e. beyond certain circumscribing limits, being

continuously under the watchful eyes of the accused at Bhatwadi

and then Kolhapur. Evidence reveals that A5 had taken Anil

Bheda, PW40 and their son to Kolhapur and that A5

S.Q. Pathan / N.S. Chitnis 548/867

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accompanied Anil Bheda to Battis Shirala for Anil Bheda's court

case. Even PW40 could not meet her husband Anil Bheda, at

Mid-town Hotel. PW40 could only contact Anil Bheda on A2's

and A3's mobile phone. The last call on Anil Bheda's phone was

on 11th November 2006 at 11:26:18 hrs, after which his phone

was switched-off. The evidence of witnesses clearly reveals that

Anil Bheda was not free to depart and was continuously under the

gaze of the accused, who were monitoring his movements. The

reason was far too obvious, Anil Bheda was an eye-witness, a

prime witness, to his and Ramnarayan's abduction and would

spill the beans and disclose the truth. There was too much at

stake, for all those involved in the same, to let Anil Bheda, free,

even for a moment, away from their watchful eyes.

266 Apart from the aforesaid evidence of PW40 and the

police personnel i.e. PW32, PW55 and PW45 with respect to

confinement of Anil Bheda, there is evidence of PW52 - Purba

Bhattacharya, a primary teacher of the school where Anil and

S.Q. Pathan / N.S. Chitnis 549/867

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PW40's son Parth was studying. The prosecution has examined

PW52 to prove that Parth was missing from school during the

said period i.e. from 13th November 2006 to 11th December

2006.

PW52-Purba Bhattacharya

267 PW52-Purba Bhattacharya was serving as a primary

teacher in St. Mary's Multi Purpose High School and Jr. College,

Sector 10-A, Vashi, Navi Mumbai, at the relevant time. She has

stated that the school received a letter from SIT and that the said

letter was received by the Principal of the School. She has

identified his signature and the letter received by the Principal.

The same is marked as Exh. - 385. She has stated that the

Principal asked her to answer the queries made by the SIT and to

furnish all the details for preparing the letter. The said letter sent

by the Principal was marked as Exh. - 386 (colly). She has stated

that alongwith her reply to the queries, a copy of the leaving

S.Q. Pathan / N.S. Chitnis 550/867

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certificate and a copy of the attendance certificate was also

furnished. The said witness has placed on record a copy of the

school leaving certificate of Parth Anil Bheda, attested by the

Principal (Exh. - 387). The said witness also during her evidence

produced the original attendance register for 2 months. In the

said register, the name of Parth was mentioned at serial No.4 in

her handwriting. She has stated that on perusing the attendance

register for the month of November 2006 to December 2006,

Parth was absent from 13th November 2006 to 11th December

2006. She has stated that she being the class teacher, had written

all the entries in the attendance register in her handwriting. The

register is maintained in regular course and a copy of the same

was furnished to SIT (Exh. 388 (colly).

267.1 PW52's statement was recorded by SIT on 3 rd

May 2012. She has stated in her cross-examination that the

attendance register was prepared by her and that the Principal

only attested the attendance register, though he did not prepare

S.Q. Pathan / N.S. Chitnis 551/867

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it. She has denied the suggestion that she and the principal have

prepared false and fabricated documents at the instance of police.

Nothing is elicited in the cross-examination of PW52, a school

teacher to disbelieve her testimony with respect to the fact that

Anil Bheda and PW40's son Parth had not attended his school

during the period from 13th November to 11th December 2006.

The evidence of PW52 thus corroborates the evidence of the

other witnesses that Parth, son of Anil and Aruna Bheda had not

attended school during the said period, for obvious reasons.

268 Thus, we have no hesitation in holding that the

prosecution has proved beyond reasonable doubt, that Anil Bheda

was wrongfully confined by the accused from the time of his

abduction on 11th November 2006 till 11th / 12th December, 2006,

at different places. The trial Court has also rightly recorded a

finding of wrongful confinement of Anil Bheda.

S.Q. Pathan / N.S. Chitnis 552/867

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269 The next circumstance relied upon by the prosecution

is with respect to the pressure tactics employed by the accused to

cover up C.R. No. 302/2006.

vi. PRESSURE TACTICS / MANIPULATION BY ACCUSED PERSONS TO COVER UP C.R. NO. 302/2006

270 Mr. Chavan, learned Spl. P.P submitted that it is not

one of the usual cases, but it is a case where accused in uniform

were trying to cover up a fake encounter i.e. C.R No. 302/2006.

He submitted that there is ample evidence on record to show that

the appellants/police officers/police personnel, with the help of

their family members and advocates, had used pressure tactics to

ensure that the witnesses do not speak the truth, by intimidating

them. According to Mr. Chavan, the appellants, who are police

officers/personnel, had also manipulated the records to cover up

C.R No. 302/2006 in order to show a fake encounter, as a

genuine one.

S.Q. Pathan / N.S. Chitnis 553/867

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270.1 In support of the aforesaid submission, Mr. Chavan

learned Spl. P.P relied on the orders passed by the High Court in a

writ petition filed by the deceased's brother Ramprasad Gupta

(PW1); the suo motu contempt proceeding initiated against A9-

Pradeep Suryawanshi, for interfering in the administration of

justice; the evidence of PW31-Dattatray Sankhe, PI attached to

D.N. Nagar Police Station; and the Investigating Officer in C.R

No. 302/2006; PW15-Avadhoot Chavan, P.I, also attached to

D.N. Nagar Police Station and PW35-Kiran Sonone, Sr. PI

attached to Oshiwara Police Station. Mr. Chavan submitted that

the evidence of the said three officers would show the pressure

tactics on the police officers/IOs employed by the

appellants/accused to fall in line, whilst investigating C.R No.

302/2006. Mr. Chavan also relied on the evidence of PW38-

Dheeraj Mehta, to show the pressure tactics and intimidation by

the family members of the accused and an advocate, on him. He

submitted that the evidence of PW38-Dheeraj Mehta is duly

corroborated by the evidence of PW107-Manoj Chalke; PW109-

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Sunil Gaonkar and PW110-K.M.M. Prasanna, to show that

PW38-Dheeraj Mehta was pressurised to toe a particular line

which was in consonance with C.R No. 302/2006. He submitted

that the evidence on record would explain why PW38 had given

his earlier statements dated 27th August 2009 and his 164

statement dated 4th September 2009. Mr. Chavan also relied

upon the threatening calls made by OA1's advocate Sultan to Anil

Bheda, which was heard and recorded by PW107 and PW108 and

the said recorded conversation brought on record through the

said witness.

270.2 According to Mr. Chavan, Anil Bheda was never

called upon to show Trisha collection by SIT, for reasons

mentioned by the IO-K.M.M. Prasanna (PW110). He submitted

that ofcourse, later, Anil Bheda showed all the spots, right from

his abduction at Vashi, to Bhandup, to D.N. Nagar Police Station,

to Vashi Police Station, to Bhatwadi, to Kolhapur and then to

Mid-town Hotel and the same was drawn under a running

S.Q. Pathan / N.S. Chitnis 555/867

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panchnama. He further submitted that PW40-Aruna Bheda's

evidence would also throw light as to why Aruna Bheda (wife of

Anil Bheda) lodged a missing complaint with respect to her

husband's disappearance and the circumstances in which the said

missing complaint was withdrawn by her subsequently. He

submitted that even PW50-Jayesh Kesariya's statement is a

testimony of why he had toed the line initially with Anil Bheda

i.e. as he felt that Anil Bheda's family life was in danger. He

submitted that it is in those circumstances that PW50 gave his

statement before the SLAO that he had gone with Anil Bheda to

Shirdi, when infact, the same was not true, and that subsequently,

PW50 disclosed the truth before the SIT, after Anil Bheda gave his

statement to SIT.

270.3 Mr. Chavan also relied on the additional affidavit of

A9, to show how A9 had manipulated and created false evidence

i.e. the statement of Gangadhar Sawant (fingerprint expert), after

nearly 3 years of the incident, when A9 was in no way concerned

S.Q. Pathan / N.S. Chitnis 556/867

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with the investigation of C.R. No. 302/2006. Mr. Chavan also

relied on the 161 statement of PW2-Ganesh dated 14 th March

2007, recorded by A9, although the I.O. of the said case was PI

Dilip Patil.

271 Learned counsel for the appellants/accused denied any

pressure tactics/ intimidation/ manipulation by the

appellants/accused to cover up C.R No. 302/2006. They

submitted that to the contrary, what was disclosed to, by the

witnesses before the SLAO was correct and that SIT had

subsequently recorded statements of witnesses under duress and

by intimidating the said witnesses. Learned counsel for the

appellants vehemently denied any pressure tactics being employed

by the appellants/accused or creation of false evidence.

272 Considering the aforesaid, we now proceed to

examine the evidence adduced by the prosecution in this regard

and consider whether the appellants/accused had exerted any

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pressure tactics or had intimidated the witnesses or manipulated

the records as alleged by the prosecution to cover up C.R No.

302/2006.

273 It is not in dispute, that this Court vide order dated

13th February 2008 had directed an inquiry to be conducted by

the learned Metropolitan Magistrate under Section 176(1-A)

Cr.P.C, into the encounter, as this Court was not satisfied with the

report submitted by the SLAO. Pursuant to the said direction, the

learned Metropolitan Magistrate conducted an inquiry as

mandated under section 176(1-A) Cr.P.C and accordingly

submitted her report dated 11th August 2008 to this Court. It is

not in dispute that the said report submitted by the learned

Magistrate revealed that it was a fake encounter, pursuant to

which, this Court, vide order dated 13 th August 2009 constituted

SIT and directed registration of an FIR as against the accused and

investigation into the said case. We have, herein-above,

reproduced the relevant part of the orders in the sequence of

S.Q. Pathan / N.S. Chitnis 558/867

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events spelt out in para 28.2 herein-above.

274 It appears that this Court was constrained to issue suo

motu contempt proceedings against A9 being Suo Motu Criminal

Contempt Petition No. 10/2010. The said suo motu contempt

petition was initiated pursuant to a letter addressed by the learned

Metropolitan Magistrate Railway Court, Andheri, with respect to

the threats extended by A9, who was then attached to Andheri

Police Station, Mumbai. The Metropolitan Magistrate had made a

representation to this Court for taking action against A9, for his

illegal activities and for giving threats to her. In her letter, the

learned Magistrate had complained that after she submitted her

176(1) report to the High Court, A9, started pressurizing people

to make complaints against her. The Magistrate has also

mentioned in her letter, that she was given threats on telephone

and that the telephone of the A.P.P was used for that purpose.

The Magistrate was allegedly told, "I will see her and her

children". It was further mentioned that the President of the

S.Q. Pathan / N.S. Chitnis 559/867

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Andheri Bar Association had told her that Mr. Suryawanshi had

put up a blank paper before him and had asked him to sign on

that, so that, he could make a complaint against the Magistrate.

This Court, after observing that prima facie, the acts constituted

gross contempt of Court, issued notice to A9 to show cause why

contempt proceedings should not be proceeded against him.

275 During the hearing of the contempt proceeding, this

Court sought better particulars from the learned Magistrate,

pursuant to which, the same were submitted. The contemnor

(A9) also filed his affidavit rebutting the allegations made against

him. This Court, after hearing the parties, vide order dated 4 th

February 2011 held A9 (contemnor) guilty of committing

criminal contempt and as such, directed him to suffer simple

imprisonment for 3 months and to pay a fine of Rs. 2,000/-. In

paras 24 and 25 of the said order ( High Court on its own motion

v. Pradeep Pandurang Suryawanshi, Police Inspector 20), this Court

observed in paras 24 and 25 as under :

20 2011 SCC OnLine Bom 147

S.Q. Pathan / N.S. Chitnis 560/867

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"24. The allegations as to interfering in the administration of justice process by way of giving threats to the Judicial Officer is definitely a serious matter, more so, when such threats are coming from a responsible senior Police Officer i.e Contemnor in the present case. On this aspect, following observations from the Authority "King v. Davies, 1906 1 KB 32 (40) are reproduced with advantage :

"175. Attacks on Judge Cause Obstruction in Justice Attacks upon the Judges excite in the mind of the people a general dissatisfaction with all the judicial determination and whenever man's allegiance to the laws is so fundamentally shaken it is the most fatal and dangerous obstruction of justice and calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of judges as private individuals but because they are the channels by which the King Justice is conveyed to the people;"

25. Considering the above, in our opinion, the present Contemnor is to be dealt with sternly when the acts imputed against the Contemnor are established in present contempt proceedings being a summary proceedings which can be decided on the strength of the papers available including the statement of A.P.P Shri Chandrashekhar Patil. More so, because the Contemnor has taken defence which to say the least is after thought and untenable."

276 It is not in dispute that the SLP filed against the said

order by the contemnor (A9) was dismissed by the Apex Court

S.Q. Pathan / N.S. Chitnis 561/867

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and as such, the order dated 4 th February 2011 of this Court

stood confirmed. It also appears that disciplinary inquiry was

initiated against the contemnor (A9), and his two annual

increments were stopped. It appears that only one document i.e.

written complaint by the learned Magistrate was relied upon

during the said inquiry.

277 The aforesaid incident would indicate the extent to

which A9, an officer in uniform, tried to impede the justice

system, only because the learned Metropolitan Magistrate

submitted her report pursuant to an order passed by the High

Court, stating therein that it was a fake encounter.

278 In the context of pressure tactics by police

officers/family members of accused, it will be necessary to also

consider the evidence of the officers investigating C.R No.

302/2006.

S.Q. Pathan / N.S. Chitnis 562/867

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PW31-Dattatray Sankhe

279 PW31-Dattatray Sankhe was working at the Oshiwara

Police Station at the relevant time i.e. from 29 th July 2007 to 1st

June 2010, as a PI. He has stated that one PI i.e. Dilip Patil of

Oshiwara Police Station was investigating the Versova C.R i.e.

C.R No. 302/2006. He has stated that Shri Patil was investigating

the said C.R till 1st January 2008, till he was transferred from

Oshiwara Police Station. He has further stated that in the absence

of Shri Patil, PI Phadtare had carried out the investigation for

about 3 months and that he had received the investigation of the

said case on 1st January 2008. PW31- Dattatray Sankhe has stated

that the entire investigation was carried out by PI Dilip Patil and

that he had prepared a report "abated summary" of the said

offence i.e. C.R No.302/2006, in view of the demise of

Ramnarayan Gupta. He has further stated that the said report was

signed by Sr. PI, K.T Sonone and that the ACP had called for the

opinion of the DCP. He has further stated that when the

S.Q. Pathan / N.S. Chitnis 563/867

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investigation was handed over to him, a writ petition filed by

PW1 was pending in the High Court and hence, he did not feel it

proper to continue with the investigation, as the matter was

pending before the High Court. He has further deposed in his

evidence that he was present on all the dates of hearing of the

writ petition in the High Court and accordingly, had made entries

in the case diary and the station diary. He has further stated that

although the State Government had directed the inquiry to be

conducted by the District Magistrate, the report of the District

Magistrate was rejected by the High Court and the High Court

had directed the learned Chief Metropolitan Magistrate to hand

over the inquiry to a Judicial Magistrate. He has stated that the

said inquiry was handed over to the learned Magistrate of the

Mobile Court, Shri Kulkarni and that vide letter dated 28 th

February 2008, the learned Magistrate had called for original

papers from the police station. According to PW31, pursuant

thereto, on 29th February 2008, he forwarded all the papers to the

learned Magistrate and that the learned Magistrate forwarded the

S.Q. Pathan / N.S. Chitnis 564/867

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report to the High Court, with original case papers on 11 th

August 2008.

279.1 According to PW31, Police Officer ACP Dilip

Suryawanshi, elder brother of A9, had directed him to record

statements of the witnesses under Section 164 Cr.PC He has

stated that ACP Suryawanshi was deputed for the said area from

1st January 2008 and that he is the brother of A9. According to

PW31, as the matter was subjudice before the High Court and as

the original papers were before the High Court, he thought that it

would be illegal to proceed to record such statements and

accordingly informed ACP Suryawanshi that he would not record

such statements. PW31 has further stated that on 27 th January

2009, ACP Dilip Suryawanshi wrote a letter to Sr. PI Oshiwara

Police Station, in which, the shortcomings in the investigation and

so also certain directions regarding the investigation were

highlighted. He has stated that the said letter was forwarded to

him by Senior PI, he (PW31) being the I.O. PW31 has handed

S.Q. Pathan / N.S. Chitnis 565/867

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over the letter (Exh. 242), which was accepted, subject to

objection. He has identified the signature of ACP Dilip

Suryawanshi. He has also identified the endorsement made on the

said letter which is in the handwriting of Sr. PI K.T. Sonone. It

was stated in the said letter, that the documents were now

produced before the higher officials for their perusal. He has

further stated that on 21st January 2008, the DCP of Zone-IX

Shri Kaushik filed an affidavit before the High Court, stating

therein that investigation is in progress in C.R No. 302/2006. He

has further stated that as there was immense pressure from ACP

Dilip Suryawanshi, he requested the learned Chief Metropolitan

Magistrate to record the statements of two witnesses i.e. Anil

Bheda and Shri Singh under Section 164 Cr.PC. The said witness

has placed on record the certified copy of the said application

which bears his signature. The certified copy is marked as Exh.

243. He has stated that he received a letter on 30 th January 2009

issued by ACP Dilip Suryawanshi directing the Sr.PI, D.N. Nagar

Police Station to comply with the order i.e. to record statements

S.Q. Pathan / N.S. Chitnis 566/867

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under Section 164 before the learned Metropolitan Magistrate

Shri 'X'. The copy of the said application and order was also

forwarded with the said letter. He has identified the said letter

(Exh. 244) bearing the signature of ACP Suryawanshi. He has

further stated that he immediately filed the copy of the order with

the learned Metropolitan Magistrate Shri `X' and that he did not

comply with the order which was passed on his application by the

Chief Metropolitan Magistrate, but complied with the order of

ACP Dilip Suryawanshi. He has stated that he recorded the

statements of some witnesses under Section 161 as per the

directions of Dilip Suryawanshi. He has further stated that again,

he was pressurized into recording statements of other police

witnesses under Section 164 Cr.PC PW31 has stated that as he

was being harassed personally, he again preferred an application

before the learned Chief Metropolitan Magistrate to record the

statements of the police officers, on 12 th March 2009. He has

placed on record the said application which bears his signature.

Certified copy of the application is marked as Exh. 245. He has

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stated that the said request application was forwarded to the

learned Magistrate Shri 'T' and that the learned Magistrate orally

refused to record the statements, as the matter was subjudice

before the High Court. PW31 has stated that accordingly he gave

the said information to Sr. PI Sonone, ACP Suryawanshi and

DCP Kaushik. He has further stated that ACP Suryawanshi then

started asking him to request another Magistrate, however, he did

not feel it appropriate to make such a request. The said witness

has further stated that as he was being personally harassed, he

prepared a noting in this regard and requested the DCP to give

necessary directions, if the statements of the witnesses are to be

recorded under Section 164 Cr.PC He also has stated the

harassment caused to him and accordingly forwarded the details

thereof to DCP, Zone-IX through Sr.PI Oshiwara Police Station

on 4th April 2009. PW31 has placed on record the said noting,

which runs into 6 pages (3 sheets). The said witness has admitted

the notings as being correct. The said notings are marked as Exh.

246. PW31 has also identified the signature of Sr. PI Sonone on

S.Q. Pathan / N.S. Chitnis 568/867

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the said noting. According to PW31, the DCP, Zone-IX returned

the said letter (Exh. 246) alongwith a direction to elaborate and

clarify, pursuant to which, on 28 th April 2009, he forwarded his

reply to DCP, Zone-IX, through Sr. PI Oshiwara Police Station.

The said witness has identified his signature on the said reply as

also the signature of Sr.PI Kiran Sonone and has accepted the

contents of the reply as true and correct. The same is marked as

Exh. 247 (Colly). He has stated that the said reply was

forwarded to the DCP, Zone-9 through the Sr. PI Oshiwara Police

Station. He has stated that he had received papers on 8 th May

2009 from the DCP, Zone-9, on which day, he was holding

charge of Sr. PI and hence, he signed the same in receipt of the

said papers. (The same was signed after necessary entries were

made in the Register). According to PW31, on 24 th April 2009,

ACP Dilip Suryawanshi issued a DO to Sr.PI-Kiran Sonone, which

DO was forwarded by the Sr.PI to him. As per the said letter

issued by ACP Dilip Suryawanshi, it was noted in the said letter

that he (PW31) had not complied with the directions and

S.Q. Pathan / N.S. Chitnis 569/867

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instructions issued in the letter dated 29 th January 2009 (Exh.

242) and further directions were given to record statements under

Section 164 Cr.PC PW31 has identified the said DO issued by

ACP Suryawanshi. i.e. the signature of ACP Suryawanshi and the

endorsement of the forwarding letter by Sr. PI Sonone. The said

DO is marked as Exh. 248 (page 2864). According to PW31, for

the first time, he interacted with ACP Dilip Suryawanshi, after he

took over the investigation of C.R No. 302/2006, on 11 th August

2008. PW31 has stated in the applications which are at Exhs. 243

and 245 about likely threats to the witnesses and the

complainant. He has stated that he had not received any

complaints regarding such threats either to the witnesses or to the

complainant.

279.2 In his cross-examination, the said witness has

admitted that from the documents of investigation that were

placed before him in C.R No. 302/2006, he formed an opinion

that it was a case of genuine encounter and that he had read the

S.Q. Pathan / N.S. Chitnis 570/867

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statements in C.R No. 302/2006 of all the police officers who are

accused in the present case and had formed the said opinion after

reading the said statements. He has stated that after perusing the

said statements and other evidence on the file of C.R No.

302/2006, he came to the conclusion that it was a genuine

encounter. He has further in his cross stated that there was no

evidence of any of the family members of the deceased

contending that it was a fake encounter, in the file submitted to

the High Court and that it was during the course of investigation,

he received a letter dated 23rd June 2008 about the acceptance of

the report of the District Magistrate by the Government of

Maharashtra. He has also stated in his cross, that the Government

had accepted the report on the basis of the documents which

were submitted to the High Court. He has further stated in his

cross-examination that after reading the investigation papers of

C.R No. 302/2006, he did not find the involvement of OA1-

Pradeep Sharma in the said case. He has further admitted that he

did not know about the contents of the statements of Anil Bheda

S.Q. Pathan / N.S. Chitnis 571/867

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and Ramrajpal Singh recorded under Section 164 and whether

the said witnesses were under pressure or not and that he had not

pressurized the said witnesses to give any statement to the

Metropolitan Magistrate.

279.3 He has further in his cross-examination, admitted that

he was issued a memo by ACP Suryawanshi on 27 th November

2008, since he was in civil dress in the Police Station, however,

the witness voluntarily disclosed that he was in-charge as Sr. PI

and that on that day after his duty, he had gone home, however,

when he reached home, he received the message about bomb

blast, pursuant to which, he returned to the Police Station. He has

stated that since his cabin was closed and his uniform was inside

the cabin and that whilst he was discussing with other officers,

ACP Suryawanshi came and noticed the same and accordingly

issued him a memo. He has admitted that the said explanation

was not given to any other officer in writing nor any noting was

made in the station diary. He has further admitted that he had

S.Q. Pathan / N.S. Chitnis 572/867

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not informed the High Court that ACP Suryawanshi was

pressurising him to record statements of witnesses under Section

164 nor had he informed the Chief Public Prosecutor of the High

Court in writing, about the same nor had he informed the learned

Metropolitan Magistrate, when he preferred an application for

recording statements of witnesses under Section 164, that he was

pressurized by ACP Suryawanshi to do so, nor had he informed

the CP about the same. The suggestion made to the witness that

ACP Suryawanshi did not pressurise him to record the statements

of witnesses under Section 164 has been denied by him. PW31

has admitted that ACP Suryawanshi had given direction in his

official capacity.

279.4 It is pertinent to note that the documents i.e. Exhibits

242, 243 and 244 are a matter of record and the said

correspondence was made and exchanged between the parties in

the usual course of business and is official correspondence of the

Police Station. There is nothing in the cross to disbelieve the

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applications/notings made by the said witness nor is there any

suggestion made to this witness that the said applications/notings

have been fabricated, in particular, Exh. 246, which is at page

2853 and the notings at pages 2854 to 2856, which disclose the

pressure exerted by ACP Suryawanshi (brother of A9) to record

the statements of witnesses under Section 164 Cr.PC The

relevant paras of Exh. - 246 reads thus:

"10- lnjps izdj.k gs ek- mPp U;k;ky;kr izyachr vlrkauk o lnj xqUg;kph loZ eqG dkxni=s xsY;k ,dk o"kkZ iklqu U;k;ky;kr tek vlrkauk ek- l- iks-vk- nk- ukS- uxj Jh- lq;Zoa'kh lk- gs okajokj loZ lk{khnkj ;kaps tckc dye 164 QkS-n-iz-l- vUo;s uksanfo.;k ckcr rksaMh vkns'k djrkr o ,d izdkjpk ncko vk.krkr ;k lanHkkZr vkEgh Lor% cgwrka'k U;k;kY;kps rlsp eq[; iksyhl vfHk;ksDrk] brj iksyhl vfHk;ksDrk o lsokfuo`Rr vfHk;ksDrk ;kaps er tk.kwu ?ksrys vkgs- R;kauhgh lnjps izdj.k ek- eq[; U;k;eqrhZ mPp U;k;ky;] eaqcbZ ;kapsdMs izyachr vlrkauk o xqUg;kps dkxni= ek-

U;k;ky;kr tek vlrkauk dye 164 QkS-n-iz-l- izek.ks tckc uksanfous fu;eckg; vlY;kps lkafxrys-

S.Q. Pathan / N.S. Chitnis 574/867

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11- lnjph ckc lrr R;kaps fun'kZukl vk.kwu fnyh vlrkauk lq/nk ek- lgk¸;d iksyhl vk;qDr] nk- ukS- uxj foHkkx Jh- lq;Zoa'kh lk- gs eyk rkasMh vkns'k nsowu ek>soj ncko vk.kr vkgsr-"

English Translation of the above paragraphs Nos. 10 and 11, read thus :

"10. Despite this case pending before the Hon'ble High Court and despite all original documents pertaining to the said offence filed in the Hon'ble Court since last one year; Shri Suryavanshi, A.C.P., D.N. Nagar, frequently gives oral directions for getting recorded statements of all witnesses under Section 164 of the Code of Criminal Procedure and puts one kind of pressure. In this connection, I personally have sought opinion from various Courts as well as from the Chief Police Prosecutor, other Police Prosecutors and retired Prosecutors and they even have told that it is contrary to the rules to record statements under Section 164 of the Code of Criminal Procedure when the said case is pending before the Hon'ble The Chief Justice of the Hon'ble Bombay High Court, Mumbai and the documents pertaining to the said offence are filed in the Hon'ble Court.

11. Despite bringing this fact to his notice time and again, Shri Suryavanshi, Assistant Police Commissioner, D.N. Nagar Division is putting pressure on me by giving oral directions."

S.Q. Pathan / N.S. Chitnis 575/867

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279.5 The noting records that ACP Suryawanshi had given

oral orders and was pressurizing PW31 to record the said

statements and that there was pressure to record 164 statements

of Anil Bheda, Jayesh Kesariya and Manohar Kulthe. It is further

recorded in the noting that the then Chief Public Prosecutor of

the Bombay High Court had during the course of discussion,

disclosed that pending the writ petition filed by PW1, 164

statements should not be recorded, as it would amount to

contempt of Court. The DCP, in his noting, whilst seeking

further detailed explanation with respect to the pressure exerted

on PW31, has noted that was it okay if written directions were

given. In the noting which is at Exh. 247 (Colly.), PW31 has

again reiterated the pressure exerted on him. The relevant para of

the said exhibit reads thus:

"24- ek- lgk iksyhl vk;qDr] nk- ukS- uxj eaqcbZ ;kauh lnj xqUg;krhy ojhy ueqn MksGl lk{khnkj 1- jkejktiky flax 2- vfuy tsBkyky HksMk ;kaps tckc lh- vkj- ih- lh- dye 164 izek.ks uksan dj.;kdjhrk nk- ukS- uxj iksyhl Bk.;kps ekQZrhus R;kaps iksyhl Bk.;kpk tkod dz- 742@09

S.Q. Pathan / N.S. Chitnis 576/867

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fnukad 27@1@2009 vUos"k ek- eq[; egkuxj naMkf/kdkjh] fdYyk dksVZ] eaqcbZ ;kauk i= nsoqu ek- U;k;ky;k dMwu 10 os U;k;ky;kps vkns'k feGowu ?ksowu lnj vkns'kk lkscr R;kaps dk;kZy;kps i= tkod dz- 447@liksvk@nkukSfo@09 fnukad 29@1@2009 gs tksMwu lnj xqUg;krhy MksGl lk{khnkj ;kaps lh- vkj-ih-lh-dye 164 izek.ks tckc ek- egkuxj naMkf/kdkjh] 10os U;k;ky;] va/ksjh ¼iwoZ½] ;kaps U;k;ky;krp uksanokos vls vkns'khr dsY;kus lnjps vkns'kkP;k izrh ek- egkuxj naMkf/kdkjh] 10 os U;k;ky;] va/ksjh ¼iwoZ½] eaqcbZ ;kaps U;k;ky;kl lknj d:u fnukad 7@2@2009 jksth lnj MksGl lk{khnkj tckc ukasnfo.;kr vkysys vkgsr-"

English translation of the above para reads thus :

"24. To get recorded the statements under Section 164 of the Code of Criminal Procedure of the eye-witnesses by names (1) Ramrajpal Singh and (2) Anil Jethalal Bheda, to the said offence, the Assistant Commissioner of Police, D.N. Nagar Division, Mumbai, through the D.N. Nagar Police Station, under its letter bearing Outward No. 742/2009, dated 27.01.2009 submitted a letter to the Learned Chief Metropolitan Magistrate, Killa Court, Mumbai and obtained order to that effect in the name of the Learned 10 th Court and by annexing a letter bearing Outward No. 447/A.C.P./D.N.D./09, dated 29.01.2009 of his Office to the said Order, gave directions to get recorded the statements under Section 164 of the Code of Criminal Procedure of the eye-

witnesses to the said Offence, from the Learned Metropolitan

S.Q. Pathan / N.S. Chitnis 577/867

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Magistrate, 10th Court, Andheri (East) itself and therefore, by submitting copies of the said orders to the Learned Metropolitan Magistrate, 10th Court, Andheri (East), Mumbai, the statements of the said eye-witnesses have been got recorded on the date 07.02.2009."

279.6 He has stated that ACP Dilip Suryawanshi had

directed him in writing vide letter dated 27 th January 2009 to

record the statements of the police officers and the witnesses

under Section 164. He has stated that pursuant to the letter of

the ACP, he had addressed a letter for recording the 164

statements of Aruna Bheda, Jayesh Kesariya and Manohar Kulpe,

however, the learned Magistrate had refused to record the same,

considering that the petition was pending in the High Court.

280 The aforesaid evidence of PW31 is duly corroborated

by PW35-Kiran Sonone, PI attached to Oshiwara Police Station.

The said witness i.e. PW35 has accepted the notings at Exh. 246

produced by PW31 as stated aforesaid and his signature thereon.

S.Q. Pathan / N.S. Chitnis 578/867

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PW35-Kiran Sonone :

281 PW35-Kiran Sonone has, in his examination, stated

that he was working as a Sr. Inspector of Oshiwara Police Station

between May 2007 to November 2009. He has stated that on

29th June 2011, PSI Chalke (PW107) came to his residence and

gave details about C.R. No. 246/2011 (present C.R.) and showed

him the notings dated 4th April 2009 and 28th April 2009 and

made inquiries about the said notings. He has stated that after

seeing the notings, he perused the papers of C.R. No. 302/2006,

which was transferred from Versova Police Station to Oshiwara

Police Station. He has further stated that the notings which were

shown to him pertain to recording of the statements of witnesses

under Section 164 Cr.P.C and that PI Sankhe (PW31) had placed

the said notings before him, pursuant to which, he had made his

notings thereon. The said witness has admitted the remarks on

the said notings and his signature thereon. He has stated that PI

Sankhe (PW31) would discuss about the case and also about

S.Q. Pathan / N.S. Chitnis 579/867

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recording of statements of witnesses under Section 164 Cr.P.C in

C.R. No. 302/2006 with the then Chief Public Prosecutor

(Bombay High Court) and the opinion of the Chief Public

Prosecutor was, that it would not be appropriate to record the

statements under Section 164 when the matter was subjudice

before the High Court. PW35 has further stated that during that

period, ACP Dilip Suryawanshi was ACP of D.N. Nagar Division

and that he was insisting on recording of the statements under

Section 164 Cr.P.C, however, PI Sankhe (PW31) was not keen on

recording the statements. He has further deposed that ACP

Suryawanshi was pressurising him (PI Sankhe) and therefore, he

discussed the matter with him, pursuant to which, the notings

were made. PW35 has identified the notings made by him at

Exh. 246 i.e. the notings placed by PI Sankhe and his notings and

remarks thereon. He has admitted the contents to be true and

correct. He has further stated that the said notings were

thereafter forwarded to DCP Zone-9 Shri Kaushik, who made

certain remarks on the notings and sent them back for

S.Q. Pathan / N.S. Chitnis 580/867

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clarification to him, which in turn, he forwarded to PI Sankhe

(PW31). The said witness has identified the signature of DCP

Kaushik at Exh. 246. PW35 has further stated that during this

period, he received one DO dated 24 th April 2009 (Exh. 248)

which he forwarded to PI Sankhe. He has identified the noting

on the said DO and the signature of Dilip Suryawanshi, which is

marked as `A' for identification. He has further stated that in

Exh. 248, ACP Suryawanshi has made reference to another letter

i.e. Exh. 242 and that the said letter was sent by ACP

Suryawanshi. He has identified the noting made by him (PW35)

and his signature and accordingly forwarded the same to PI

Sankhe (PW31). He has further stated that he (PW35) replied to

the said letter on the very next day i.e. on 28 th January 2009,

which bears his signature. PW35 has admitted the contents

therein, being true and correct. Accordingly, the said reply was

marked as Exh. 264.

281.1 On 28th January 2009, PI Sankhe forwarded another

S.Q. Pathan / N.S. Chitnis 581/867

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noting to him, which he forwarded to the DCP, Zone-9 (Exh.

247). PW35 has identified the remarks on the said noting and his

signature thereon. He has also admitted the contents of the

noting as being true and correct. The said witness has also

identified the signature of ACP Dilip Suryawanshi on Exh. 242.

He has stated that all the said correspondence was done in the

normal course of business.

281.2 In his cross-examination, PW35 has admitted that

before PI Sankhe (PW31) received the investigation papers in

2008, PIs Mohan Sankhe (PW39), Dilip Patil and PI Phadtare had

already completed the investigation and had arrived at a

conclusion, and hence, he did not feel it necessary to re-

investigate, after the investigation came to Dattatray Sankhe i.e.

PW31. He has stated that he was satisfied that the investigation

and the conclusion arrived by the earlier investigating officers and

hence, did not bother to re-investigate. He has further admitted

that as per the investigation papers of C.R. No. 302/2006, it was

S.Q. Pathan / N.S. Chitnis 582/867

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a case of genuine encounter and not murder and that C.R. No.

302/2006, was not classified as `B' Summary. He also admitted

that abated summary was proposed because of the death of

Ramnarayan Gupta and that the said report of abated summary

was placed before him by PI Patil; that he endorsed the same

report and placed the same before ACP Awate. PW35, in his

cross-examination, has further stated that in the inquiry which

was conducted by the SLAO-4, the same material as available in

C.R. No. 302/2006 was placed before the SLAO-4 and that the

report of SLAO-4 recorded a finding that the death of

Ramnarayan Gupta was caused in self-defence by the police. He

has stated that the said report was accepted by the State

Government i.e. Home Department (Special). He has further

admitted that it is true that the name of Pradeep Sharma (OA1)

did not appear in any of the investigation papers of C.R. No.

302/2006 and that the investigation papers did not disclose that

the officers who had gone to accost the deceased, were part of the

team of OA1, nor did the investigation papers disclose the

S.Q. Pathan / N.S. Chitnis 583/867

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presence of OA1 at Nana Nani Park at Versova.

282 It is pertinent to note that PW35-PI Sonone has duly

corroborated the evidence of PW31-Dattatray Sankhe with

respect to the notings made by him on the notings made by

PW31. There is no cross-examination of the said witness that the

notings were made subsequently or that they were fabricated,

much less, had any reason to make the said notings.

283 Although the learned counsel for the

appellants/accused made an endeavour to show that both PW31

and PW35, based on the investigation done in C.R No. 302/2006,

revealed that the encounter was genuine, the said admission is

with respect to what was placed before the said officers on the

basis of the investigation conducted by the earlier officers in C.R

No. 302/2006. The said officers i.e. PW31 and 35 came into

picture i.e in connection with C.R No. 302/2006 belatedly, when

almost the entire investigation was completed and when `abated

S.Q. Pathan / N.S. Chitnis 584/867

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summary' report was proposed. Although PW35 has admitted

that the investigation papers did not disclose the presence of

Pradeep Sharma (OA1) at Nana Nani Park, it is pertinent to note

that the witness had deposed with respect to the same, based only

on investigation papers, as collected by the investigating officers

investigating C.R No. 302/2006. Although, a suggestion was

made to PW35 that the brother of A9 was not pressurising to

record statements of witnesses under Section 164, the same has

been denied by the said witness.

284 It is pertinent to note that Exh. 264 i.e letter dated

28th January 2009 by PW35 to ACP Suryawanshi sets out the

investigation carried out. All the correspondence, in particular,

the notings exchanged between PW1, PW35 and ACP

Suryawanshi, are in the course of the official duty and there is

nothing in the cross-examination to disbelieve the testimony of

these witnesses.

S.Q. Pathan / N.S. Chitnis 585/867

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285 With respect to pressure tactics and intimidation

exerted by some of the family members of the appellants/accused

and an advocate, the prosecution has examined PW38-Dheeraj

Mehta, in support of the same. The said witness is the witness

who was first informed by one Nilesh, immediately soon after

Ramnarayan Gupta and Anil Bheda were abducted from Sector

9A, Vashi. His evidence with respect to what was disclosed to

him vis-a-vis abduction, has been considered by us, whilst dealing

with the said circumstance. At present, we are concerned with

what has been deposed to by PW38 with respect to how he was

pressurised and intimidated as well as threatened.

286 PW38-Dheeraj Mehta, in his examination-in-chief, in

para 6 has stated that one person by name Avi had come in

August 2009 for getting gemstones (this is post the direction by

the High Court to register an FIR- i.e. order dated 13 th August

2009. He has stated that the said person made inquiries about the

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stone and collected his visiting card and left; that at about 20:30

hrs., he received a call from his wife stating that one person by

name Avi had come to his house, pursuant to which, he asked his

wife to handover the phone to Avi; that he spoke to him; that the

said person introduced himself as a friend of Avi; that he asked

the said person who Avi was, to which, he replied as the person

who had come to the shop to purchase stone in the morning; that

he asked the said person to ask Avi to call him, pursuant to which,

after sometime, he received a call from a PCO; that he asked

why he had called, to which he disclosed that he had called for

gemstones; that he asked the said person how he had gone to his

house and how he got his residential address, to which he

disclosed that he had been to his shop and as the shop was closed,

he had gone to his house. PW38 stated that the said person

wanted one stone urgently, pursuant to which, PW38 called the

said person to Hotel Shabri at Vashi. According to PW38, the

said person came after 15-20 minutes; that he was accompanied

by two other persons; the said person stated that they wanted to

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speak about the encounter of Lakhanbhaiya (Ramnarayan); he

asked him who Lakhanbhaiya was; they stated that they wanted

to speak about Pandeyji (Ramnarayan) and Anil Bheda, who were

taken away from outside his shop; that the said person told him

that the said case is going to restart; that he asked Avi who were

the two persons with him, to which he disclosed that they were

relatives of the police officers, who were in jail; that when he

asked him what help was required, the said person disclosed that

he should go to his village for some days, as he and Anil Bheda

were witnesses in the said case and that since the police was

likely to inquire with him, he should go to the Village. PW38

has further stated that he refused the same and told them that he

could not go to the Village, as his business would be affected.

According to PW38, he again received a call on the next next day

from Avi who told him that if he could not go to the Village, he

should keep his shop closed for 8-10 days, pursuant to which, he

kept his shop closed for one week, as he did not want any hassles.

PW38 has further stated that during the said period, he received

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phone calls from Avi, who told him that police would call him

and that he should take time of 3 to 4 days.

286.1 PW38, in para 8 of his evidence has again

deposed that he received a call from SIT on 26 th August 2009 and

that as per Avi's say, he took time of 2-3 days; that on the very

same day, in the evening, he received call from Avi, who asked

him to come to Sanman Hotel, outside Nerul Railway Station, to

meet an advocate by the name Falguni Brahmabhatt. He has

stated that Ms. Falguni was not his lawyer and that she had come

there to discuss about the police inquiry relating to the encounter;

that he was told that he should only disclose that Pandeyji and

Bheda had come to his shop, had tea and left the shop; that he

should not disclose about the fact that Pandeyji and Bheda were

taken away from outside his shop and that he should state to the

police that he did not know any details about the case. According

to PW38, he was asked to call DCP Prasanna and take his

appointment on the next day. PW38 has stated that on the next

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day, Avi arranged an Indica vehicle to go to the office of the DCP;

that on 27th August 2009, he went to the Office of the DCP in the

morning; that he reached the office in the vehicle of advocate

Falguni; that he changed the vehicle at Andheri Seepz and then

went to Powai Police Chowki, where Vinay Ghorpade (PW108)

and Sunil Gaonkar (PW109) were present. He has stated that the

said officers after making inquiries with him, took him to the

DCP Office at Bandra, where his statement dated 27 th September

2009 was recorded. He has stated that he was there with advocate

Falguni. According to PW38, his statement was recorded under

Section 164 Cr.P.C on 4th September 2009 at which time,

advocate Falguni was with him (It is pertinent to note that in both

the statements i.e statement dated 27 th August 2009 recorded by

SIT and the statement dated 4th September 2009 recorded under

Section 164, PW38 has not made any disclosure with respect to

the incident of abduction. PW38 has further deposed in para 9

that after the aforesaid statements were recorded, again his

statement was recorded on 1st February 2010 at the DCP Office

S.Q. Pathan / N.S. Chitnis 590/867

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by SIT. He has stated that after recording of his first two

statements i.e statements dated 27 th August 2009 and 4th

September 2009, he was in contact with Anil Bheda and that Anil

Bheda had told him that he had given his statement and that he

too should give his statement. He has stated that on 27 th August

2009 and at the time of recording of his 164 statement on 4 th

September 2009, he had given the statement as told by Avi and

advocate Falguni, as he was afraid at that time, since Avi had

visited his house and that to protect his family, he had given the

statement as per their say.

286.2 Pursuant thereto, PW38 was again called by SIT on

28th August 2010 for identification of one person by the name

Avi, who was arrested by them. PW38 disclosed that he saw the

said person and identified the same to be Avi. However, on the

earlier occasion when Avi's photograph was shown to PW38, he

did not identify him. PW38 has disclosed the mobile number of

S.Q. Pathan / N.S. Chitnis 591/867

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Avi as XXXXXX1059. PW38 also gave the two mobile numbers

used by him.

286.3 The evidence of this witness i.e. PW38, that he was

regularly in touch with A4, A14, Avi as well as Falguni is duly

corroborated by the CDRs, which we will reproduce in detail,

when we consider the said circumstance of CDRs. At this stage, it

is pertinent to note, that advocate Falguni had appeared for Tanaji

Desai (A2), Ratnakar Kamble (A3), Akhil Khan (A6) and Vinayak

Shinde (A7) at the time of their remand as well as for Pradeep

Sharma (OA1) in his bail application.

286.4 In his cross-examination, PW38 has stated that from

27th August 2009 till 1st February 2010, he did not make any

grievance to anyone with respect to his statement dated 27 th

August 2009 being made under pressure nor did he file any

application or complaint with respect to the same in the court nor

did he take any advice from any advocate in this regard, nor did

S.Q. Pathan / N.S. Chitnis 592/867

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he write to DCP Prasanna (PW110) that his statement dated 27 th

August 2009 recorded by SIT was false and made under pressure.

He has stated that he was alone when DCP Prasanna recorded his

statement on 27th August 2009 and that he did not disclose to him

that the actual facts were something different and that he was

under pressure, stating otherwise. He has stated that after reading

the contents as typed pursuant to his disclosure, he found the

same to be true and correct, pursuant to which, DCP Prasanna

signed the said statement. He has further admitted that he did not

ask DCP Prasanna to allow him to write on the statement that he

was stating so under pressure, nor did he ask him to cancel the

contents of the statement, nor did he ask DCP Prasanna not to

sign the statement and to score out the portions with which he

was confronted in his cross-examination. He has further admitted

in his cross-examination that he was alone with the learned

Magistrate when his statement was recorded under Section 164

Cr.P.C on 4th September 2009 and that his statement was

recorded by the learned Magistrate by way of questions and

S.Q. Pathan / N.S. Chitnis 593/867

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answers and that he did not inform the learned Magistrate that

his statement dated 27th August 2009 was recorded under

pressure and its contents were incorrect. In his cross-

examination, he has stated that in 2006, his two mobile numbers

were operational i.e XXXXXX4910 and XXXXXX9531. He has

further stated that prior to his meeting on 26 th August 2009 with

advocate Falguni Brahmabhatt, he did not have any conversation

with her on phone and that he called and spoke to her on 26 th

August 2009. He has also admitted that he spoke to her on the

next day morning. According to PW38, he had been to the office

of SIT on 27th August 2009 for recording his statement at 12:00

noon and that he had not informed DCP Prasanna (PW110) that

he had spoken with advocate Falguni, prior to recording his

statement. He has further admitted that he would talk to advocate

Falguni daily about 2 to 3 times about the case. It is also pertinent

to note that PW38 has admitted in his cross-examination that on

27th August 2009, when he went to meet DCP Prasanna, advocate

Falguni was sitting outside and that he had informed DCP

S.Q. Pathan / N.S. Chitnis 594/867

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Prasanna that she was his advocate. He has further admitted that

he spoke with advocate Falguni on 1st and 2nd September 2009

and that his statement was recorded by the Magistrate on 4 th

September 2009. When confronted, he has stated that he did not

remember whether he spoke to advocate Falguni on 4 th September

2009 at 13:10 hrs and 15:09 hrs. He has admitted that he had

not informed the learned Magistrate that he was giving statement

under pressure of Avi. PW38 has denied the suggestion that

advocate Falguni was his advocate and hence, he was regularly

consulting her. He has also denied the suggestion that he was

consulting her, as the brother of the deceased was pressurising

him to be an eye-witness in the said case. PW38 in his cross-

examination stated that there was no pressure from the

complainant (PW1) to act as a witness in this case nor had PW1

called him and asked him to sign the statement as per his say. He

has further admitted that he had disclosed to SIT that PW1 used

to call him on his mobile and had requested to help him and had

assured him that no trouble would be caused to him, however,

S.Q. Pathan / N.S. Chitnis 595/867

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after refusing any help, he switched-off his mobile. The witness in

his cross-examination has stated that he had not disclosed to SIT

that he was told that he would only disclose that Pandeyji and

Bheda had come to his shop, had tea and then left the shop.

PW38 in para 26 of his cross-examination admitted that to

maintain privacy of his family, he never took any customer to his

house or gave his address and that the day when Avi came to his

residence, he did not give his residential address nor was there

any landline available in his house. He has further admitted that

Avi did not disclose to him that he would send his friend to him

or to his residence. He has further stated in his cross, that on the

day Avi came to his office, as usual, he closed the shop at 20:00

to 20:30 hrs and went home. He has stated that he went to Shabri

Hotel which is the nearest hotel to his shop at Vashi and had

called Avi to Shabri hotel. He has further admitted that when he

called Avi to Shabri hotel, he thought he had come to collect the

stone, however, Avi had not disclose which stone he wanted. He

has further in para 27 of his cross stated that the other two

S.Q. Pathan / N.S. Chitnis 596/867

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persons with Avi at Shabri Hotel were not known to him; that he

did not ask their names nor had he asked Avi why he had brought

the persons with him; and that before the day, he met Avi at

Shabri hotel, he (PW38) knew about Lakhanbhaiya

(Ramnarayan) from PW1. He has further admitted that he had

left Vashi between 2006 to 2009, as he did not wish to be a

witness in the case. PW38 has admitted that he did not witness

anything on 11th November 2006 and hence, he did not want to

be a witness, nor was he interested in meeting anyone in

connection with the said case, as he had shifted his residence

between 2006 to 2009 and as such, was taken aback when Avi

disclosed that he wanted to talk about the Lakhanbhaiya case.

He has stated that he declined to talk to Avi about the said case,

as he did not wish to get involved in the same. He has further

admitted that Avi did not disclose to him as to how the case was

restarted and at whose behest and who the witnesses were, nor

that Avi threatened him, however, has denied the suggestion that

it was not true to say that there was no reason for him to get

S.Q. Pathan / N.S. Chitnis 597/867

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afraid. He has stated that as Avi was a stranger for him, he was

worried.

286.5 Although suggestions have been put to the witness

that he agreed to be a witness in the said case, as PW1 had

pressurized him and threatened him with arrest, PW38 has denied

the same. In para 31 of his cross-examination, PW38 has

admitted that from 2006 to 2009, he was not in Mumbai. He has

denied the suggestion that (i) on 26 th August 2009 and 27th

August 2009, Avi did not meet him; (ii) that he did not call Avi on

26th and 27th; (iii) that Avi did not provide any Indica car to him;

(iv) that Avi introduced advocate Falguni to him; (v) that Avi did

not visit him for purchase of stone; (vi) that he did not give any

visiting card to Avi; (vii) that Avi is not Santosh Shettiyar; (viii)

that he has named Avi on the say of SIT; (ix) that he did not meet

any person by the name Avi at Sanman Hotel, Shabri Hotel or at

Andheri Seepz; (x) that he knew advocate Falguni prior to 27 th

August 2009; (xi) that Avi did not provide an Indica car to him;

S.Q. Pathan / N.S. Chitnis 598/867

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(xii) that advocate Falguni never asked him not to disclose any

fact about the incident; and (xiii) that he was disclosing the

involvement of Avi and advocate Falguni on the say of SIT.

286.6 Omissions were also brought on record with respect

to the disclosure made by PW38 in his subsequent statement

made before SIT and his earlier statement i.e when he asked Avi

who the two persons were, he disclosed that they were relatives

of police officers, who were in jail, nor did he disclose before the

Magistrate that he was told to go to village for some days. PW38

voluntarily deposed that he was not asked about the same and

hence he did not disclose. He has also admitted that he did not

disclose before the Magistrate in his statement under Section 164

dated 4th September 2009, that advocate Falguni was with him,

when his earlier statement was recorded. PW38 in his evidence

voluntarily stated that advocate Falguni was with him at that

time. He has further admitted that he did not tell before the

Magistrate while recording his second statement that after

S.Q. Pathan / N.S. Chitnis 599/867

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recording his first two statements, he was in contact with Anil

Bheda on 27th, at the time of recording his statement under

Section 164. He has stated that he had given them the said

statements, as stated by Avi, as he was afraid that Avi had visited

his house and to protect his family, he gave the said statement, as

per their say.

287 The aforesaid evidence of PW38 with respect to

presence of advocate Falguni is corroborated by PW107-Manoj

Chalke, PW109-Sunil Gaonkar and PW110-K.M.M. Prasanna.

288 PW107-Manoj Chalke, in para 85 of his evidence has

stated the names of the advocates who were present at the time of

remand. He has stated the names of the advocates who appeared

for the accused. As far as advocate Falguni Brhamabhatt is

concerned, he has stated that advocate Falguni and advocate

Shetty appeared for other accused persons.

S.Q. Pathan / N.S. Chitnis 600/867

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289 As far as PW109-Sunil Gaonkar is concerned, he has,

in paras 54, 56 and 60 stated the names of the advocates

representing the accused. He has stated that advocate Falguni

Brahmabhatt represented accused Tanaji Desai (A2), Ratnakar

Kamble (A3), Akhil Khan (A6) and Vinayak Shinde (A7) and that

on 22nd February 2010, he, API Vinay Ghorpade (PW108) and

SIT's staff were present before the Sessions Court for attending

Bail Application No. 150/2010 filed by Pradeep Sharma (OA1)

through advocate Falguni Brahmabhatt and Shrikant Shivade.

290 The fact that Falguni Brahmabhatt was appearing for

the accused, as deposed to by PW109 has gone unchallenged,

inasmuch as, there is no cross-examination on the said aspect.

291 PW110-K.M.M. Prasanna, in para 59 stated that six

accused were produced before the learned Magistrate, Railway

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Mobile Court, Andheri. He has stated that all accused were

produced in veil, except Pradeep Sharma (OA1). He has stated

that advocate Shivade appeared for Pradeep Sharma (OA1) and

advocate Falguni Brahmabhatt appeared for accused Akhil Khan

(A6), Ratnakar Kamble (A3) and Tanaji Desai (A2) and advocate

Shetty appeared for the rest of the accused. PW110 has further

deposed that advocate Falguni Brahmabhatt had submitted three

applications before the Court, out of which, one was pertaining

to allowing medicines and home food for the appellants/accused;

the second was to allow the appellants/accused to meet their

advocates while in police custody; and the third was regarding

expressing concerns over the security of the appellants/accused.

292 The evidence as stated aforesaid clearly shows that

advocate Falguni was appearing for the accused and that, she was

also interacting with PW38-Dheeraj Mehta. As noted above, the

CDRs of advocate Falguni Brahmabhatt corroborate the

testimony of the aforesaid witnesses. It thus appears from the

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evidence as stated aforesaid that PW38 was indeed being

pressurized to toe a particular line, which was consistent with C.R

No. 302/2006. Thus, the statements given by PW38 dated 27 th

August 2009 recorded under Section 164 by the SIT and

statement dated 4th September 2009 recorded by the learned

Magistrate, would explain the circumstances in which the said

statements were made i.e. PW38 has clearly stated in his evidence,

why later, he gave the true and correct statements i.e. after he

spoke to Anil Bheda and after Anil Bheda had revealed the truth

to SIT.

293 According to the prosecution, the additional affidavit

of Pradeep Suryawanshi (A9) would also reveal the manipulations

done by the appellant (A9) to create false evidence. In this

connection, the prosecution relied not only on the additional

affidavit of A9 but also the annexure to the said additional

affidavit i.e statement of API Gangadhar Sawant, fingerprint

expert, CID. Learned counsel for the appellant (A9) has not

S.Q. Pathan / N.S. Chitnis 603/867

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denied filing of the additional affidavit during the course of the

argument nor has he denied the annexures to the said additional

affidavit.

294 It is pertinent to note that the said additional affidavit

was filed by Pradeep Suryawanshi (A9) in the writ petition filed

by PW1 i.e Writ Petition No. 2743/2006. To the said additional

affidavit, he annexed the statement of Gangadhar Sawant,

fingerprint expert, CID. It is pertinent to note that the

fingerprint expert who examined the fingerprints on the revolver

from which Ramnarayan allegedly fired on the day of the incident

i.e. 11th November 2006, is Gangadhar Sawant and that the said

fingerprint expert in his report, has stated, "no fingerprints

found". It appears that subsequently, after almost three years of

the registration of C.R No. 302/2006, when investigation was

being conducted by the Oshiwara Police Station and when

Pradeep Suryawanshi (A9) was PI of D.N. Nagar Police Station,

Andheri, A9 obtained a statement of the said witness i.e

S.Q. Pathan / N.S. Chitnis 604/867

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Gangadhar Sawant. The said statement is dated 27 th October

2009. The statement of Gangadhar Sawant was annexed to the

additional affidavit by A9 to show why fingerprints were not

visible. Although A9 was PI of D.N. Nagar Police Station,

Andheri and the investigation of C.R No. 302/2006 was being

done by Oshiwara Police Station, despite the same, A9 obtained

the said statement after three years, seeking to explain why

fingerprints were not visible on 11th November 2006 on the

weapon allegedly used by the deceased. The attempt appears to

be clearly to create false evidence.

295 It is also pertinent to note that A9 recorded the

statement of Ganesh Iyer (PW2) dated 14 th March 2007 (161

statement) and took his signature on the said statement, although

the IO in the said case at the relevant time, was PI Dilip Patil.

We have also earlier noted that A9 was convicted for contempt of

the Court because of the threats extended by him to the learned

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Magistrate, post her submitting a report to the High Court that it

was not a genuine encounter, but was a fake encounter.

296 Thus, from the evidence on record, it is clearly

evident that some of the appellants/accused were directly or

indirectly trying to put pressure on witnesses to refrain from

disclosing the truth. Most of the accused in this case, are police

personnel, and as such, in cases such as these, it is difficult to find

witnesses come forward and if they do disclose, all kinds of

influence/pressure is exerted not to speak the truth. The evidence

on record coupled with the CDRs, shows that the advocate for

OA1 and A4 and others was present with PW38 at the time of

recording of his statement.

297 According to the prosecution, all the aforesaid

circumstances have been duly corroborated by CDRs of the

accused. Hence, we now propose to deal with the last

circumstance relied upon by the prosecution, i.e. CDR, which

again clearly points to the complicity of the appellants/accused.

S.Q. Pathan / N.S. Chitnis 606/867

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vii. CALL DETAIL RECORDS (`CDR')

298 Learned counsel for the appellants/accused raised

question on the admissibility of the SDR/CDR evidence led

through the Nodal Officers and some even disputed using the

mobile numbers, as alleged by the prosecution. We, in the facts

have no hesitation in relying on the said CDR evidence. Learned

counsel for the appellants/accused also submitted that in the

absence of Section 65B Certificate, the evidence adduced cannot

be relied upon.

299 Per contra, Dr. Chaudhry, learned counsel for the

appellant in Criminal Appeal No.854/2013 and Mr. Chavan,

learned Spl. P.P. submitted that first and foremost, no objection

with regard to Section 65B Certificate was raised during trial,

much less, when the Nodal Officers were examined and as such,,

the accused are now estopped from raising the ground of Section

65B.

S.Q. Pathan / N.S. Chitnis 607/867

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a. Law vis-a-vis CDR

300 The Apex Court in Sundar @ Sundarrajan versus

State by Inspector of Police21, has in detail considered the

admissibility of CDRs; and how evidence of CDR is to be

considered i.e. the law as it then stood, at the time of trial.

The relevant paragraphs are paras 31 and 32 of the said

judgment, which read thus:

"31. One of the earliest decisions on the provision was of a two judge bench of this Court in State (NCT of Delhi) v. Navjot Sandhu-(2005) 11 SCC 600, where the Court held that Section 65B was only one of the provisions through which secondary evidence by way of electronic record could be admitted and that there was no bar on admitting evidence through other provisions. The Court noted that:

150. According to Section 63, "secondary evidence"

means and includes, among other things, 'copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies'. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence,

21 2023 SCC OnLine 310

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printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and

65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.

(emphasis supplied)

32. The principle which was enunciated in Navjot Sandhu was overruled by a three judge bench of this Court in Anvar P.V. where it was held that:

22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same.

Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence

S.Q. Pathan / N.S. Chitnis 609/867

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pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."

(emphasis supplied)

301 It is pertinent to note that the Apex Court judgement

dated 4th August 2005 in Navjot Sandhu was subsequently

overruled in Anvar's case on 18th September 2014. According to

the learned Spl.P.P. since, the last witness was recorded in 2012,

the law governing 65B certificates will have to be interpreted, as

it then stood i.e. at the time of recording the evidence at the trial

stage, i.e. in consonance with the ruling in Navjot Sandhu's case,

which relaxed the need for a Section 65B Certificate, certificate

for proving electronic records.

S.Q. Pathan / N.S. Chitnis 610/867

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302 The Apex Court in Sonu @ Amar v. State of

Haryana22, was called upon to consider whether the judgment in

Anvar (Supra) should be retrospectively applied or whether it

should find a prospective application. Accordingly, in para 40,

the Apex Court held as under:

"40. This Court did not apply the principle of prospective overruling in Anvar case [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :

(2015) 1 SCC (L&S) 108] . The dilemma is whether we should. This Court in K. Madhava Reddy v. State of A.P. [K. Madhava Reddy v. State of A.P., (2014) 6 SCC 537 : (2014) 2 SCC (L&S) 305] held that an earlier judgment would be prospective taking note of the ramifications of its retrospective operation. If the judgment in Anvar[Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] is applied retrospectively, it would result in unscrambling past transactions and adversely affecting the administration of justice. As Anvar case [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] was decided by a three-Judge Bench, propriety demands that we refrain from declaring that the judgment would be prospective in operation. We leave it open to be decided in an appropriate case by a three-Judge Bench. In any event, this question is not germane for adjudication of the present dispute in view of the adjudication of the other issues against the accused."

(emphasis supplied)

22 (2017) 8 SCC 570.

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303 Since, the question was left open in Sonu (Supra), the

aforementioned legal labyrinth of the 65B certificate, was finally

navigated in Sundarrajan (supra), where the Apex Court held in

para 44 as under:

"44. Therefore, we are inclined to agree with the ratio in Sonu by not allowing the objection which is raised at a belated stage that the CDRs are inadmissible in the absence of a Section 65B certificate, especially in cases, where the trial has been completed before 18 September 2014, i.e. before the pronouncement of the decision in Anvar P.V.. However, we are also mindful of the fact that the instant matter involves the death sentence having been awarded."

304 To recapitulate the foregoing, it was canvassed in

Sonu, that there are two categories of objections which can be

raised regarding the admissibility of documents, the first category

is, where the document is per se inadmissible i.e. inherently

inadmissible; and, the second category is, where the objection is

regarding the mode of proof, which is procedural. In the latter

case, if the objection is raised at any stage subsequent to the

marking of the document as an exhibit, the said objection

regarding the mode of proof cannot be allowed. It was held, that

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the crucial test, is whether the parties tendering the evidence

would have had the opportunity to cure the defect by resorting to

such mode of proof as would be regular, if such an objection was

raised at the time of marking such documents as exhibits.

305 In this connection, it would be apposite to place

reliance on Sonu (Supra), in particular, paragraph 32, of the said

judgment:

"32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65-B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The

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mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 CrPC, 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof." (emphasis supplied)

306 It is thus evident from the aforesaid judgments and in

particular, the judgment of the Apex Court in the case of Sundar

@ Sundarrajan (supra), that an objection that the CDR's are

inadmissible in the absence of a 65B Certificate, if raised at a

belated stage, will not be allowed in cases where the trial has been

completed before 18th September 2014. It is pertinent to note

that the last witness was recorded on 20 February 2012 and the

judgment was delivered on 12th July 2013. Thus, in the present

case, we hold that the CDRs can be looked into, the same having

being exhibited through Nodal Officers without any objection.

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307 We now propose to consider the evidence adduced by

the prosecution, in support of the said CDR.

b. Evidence of nodal officers

308 The prosecution in order to prove the CDR has relied

on the following Nodal Officers; Mr. Changdeo Haribhau Godse,

(PW54); Mr. Vikas Narayan Phulkar (PW97); Mr. Rakeshchandra

Rambuz Prajapati (PW62); Mr. Yogesh Shreekrushna Rajapurkar

(PW65), Mr. Shekhar Vinayak Palande (PW69), Mr. Divakar

Mohan Rao (PW85) and Mr. Rajesh Sampatrao Gaikwad

(PW89).

309 SIT had sent request letters and sought mobile

numbers of the following persons:

Sr. Name Mobile Number Registered Owner No. 1. Pradeep Sharma (OA1) XXXXXX2987 Hitesh Solanki (A5) 2. Tanaji Desai (A2) XXXXXX1323 Own name 3. Ratnakar Kamble (A3) XXXXXX3457 Own name

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4. Shailendra Pandey @ XXXXXX9023 Own name Pinky (A4) XXXXXX6311 Osman Shaikh(PW88) XXXXXX1117 Mehmood Shaikh(PW96)

5. Hitesh Solanki (A5) XXXXXX1156-Loop Own name XXXXXX5068 Own name XXXXXX5874 Own name XXXXXX5805 Own name XXXXXX8104 Own name XXXXXX5118- Shaikh Kaider Vodafone

6. Akhil Shirin Khan @ Bobby XXXXXX8070 Own name (A6)

7. Vinayak Shinde@ Veenu XXXXXX0551 Avinash B. Shinde (Brother) (A7)

8. Pradeep Suryawanshi @ XXXXXX6442 Own name

Nana (A9)

9. Nitin Sartape (A11) XXXXXX2052 Own name

10. Devidas Sakpal (A13) XXXXXX7293 Own name

11. Janardan Bhanage (A14) XXXXXX6791 Ashok Sawant

12. Dilip Sitaram Palande XXXXXX3538 Own name

(A15)

13. Prakash Kadam (A16) XXXXXX5392 Own name 14. Ganesh Harpude (A17) XXXXXX8210 Own name

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15. Anand Patade (A18) XXXXXX2362 Mangesh Sawant 16. Sandip Sardar (A20) XXXXXX3395 Own name 17. Arvind Sarvankar (A22) XXXXXX6188 Own name 18. Ramprasad Gupta (PW1) XXXXXX6490 Own name XXXXXX0012 19. Ganesh Iyer (PW2) XXXXXX5384 Own name XXXXXX4804 20. Shyamsunder Gupta XXXXXX6540 Own name (PW3) XXXXXX4123 21. Ramnarayan Gupta XXXXXX8877 Anil Bheda (deceased) 22. Anil Bheda XXXXXX3863 Own name XXXXXX6351 Own name

23. Shankar @ Girish XXXXXX9998 Own name

Dalsingh @ Nepali

(PW57)

24. Dheeraj Mehta XXXXXX9531 Own name XXXXXX4910 (PW38)

25. Anant Patil (PW104) XXXXXX3281 Own name

26. Subhash Patel @ Lefty XXXXXX2771 Naresh (Informer) Chandurkar XXXXXX5550 Chandan Singh XXXXXX0768 Sairaj Ansari XXXXXX7645 Radha Indulkar

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27. Ramrajpal Singh XXXXXX3799 Own name

28. Bipin Bihari (PW78) XXXXXX3333 Novex Communication Pvt. Ltd. 29. Geetanjali Datar XXXXXX2638 Shrikrushna Datar

(PW68)

30. Falguni Brahmabhatt XXXXXX0500 Own name

31. Mahesh Muley (PW6) XXXXXX8646 Own name

32. Amit Ashok XXXXXX8555 Own name

Jambotkar (PW8)

33. Santosh Shetiyar XXXXXX1059 Ajit Soman

34. Harishankar Sharma XXXXXX4570 Own name

PW54 - Changdeo Haribhau Godse:

310 PW54 - Changdeo Haribhau Godse, was working as

an Alternate Nodal Officer in Vodafone India Limited (presently

Vodafone ESSAR Limited). As a Nodal Officer he provided

information relating to mobile phones to Law Enforcement

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Agency i.e. subscribers details, call data record, customer

application form, payment details etc. He has stated that if the

data is required by Law Enforcement Agency, a request is made to

their I.T. Department to retrieve the data and if it is beyond the

period of one year, the CDR is automatically stored in their main

server and if there is a system failure, then the data is not lost

since there is back up system provided for. He has further stated

that the data includes incoming calls and outgoing calls as well as

incoming and outgoing SMS and that there is no manual

intervention or automatic intervention in recording of the said

data. The said witness has in his evidence stated that pursuant to

the letters addressed by SIT, he provided the following details:

Sr. Request Letter for Mobile Dated Information Provided by Dated No. Number by the Nodal SIT Officer

1. Exhibit. 398 12.10. Exhibit 399 (colly) 17.02.

Letter O. W. No. 70/ DCP/ 2009 Period - 05.11.2006 to 2010 Zone - IX/ 2009 30.11.2006 Sub.: Provide Information regarding mobile Number -

XXXXXX3799 - Owner -

Ramrajpal Singh

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2. Exhibit. 400 25.09. Exhibit 401 (colly) 17.02. Letter O. W. No. 46/ DCP/ 2009 Period-10.11.2006- 2010 SIT/ 2009 13.11.2006 Sub.: Provide Information Information requested regarding by: Mr. K. M. mobile Number along with Mallikarjuna Prasanna tower location (PW110) XXXXXX 5384 - Owner - Mr. Ganesh R. Iyer (PW2), Exh. 148 XXXXXX4804 - Owner 3. Exhibit. 402 22.03. Exhibit 403 (colly) Letter O. W. No. 231/ DCP/ 2010 Period-10.11.2006- SIT/ 2010 16.11.2006 Sub.: Providing hard copies of (PW104) information already sent through email Exhibit 404 (colly) - Ref: Letter O. W. No. 171/ Period-10.11.2006 to DCP/ SIT/ 16.11.2006 -(A5) 2010 Dt. 03.03.2010 XXXXXX3281 - Owned and used by Mr. Anant Tukaram Patil (PW104) XXXXXX5118 - used by Hitesh Shantilal Solanki (A5) but registered in the name of Shaikh Kaider

4. Exhibit.405 11.06. Exhibit 406 06.12. Letter O. W. No. 81/ DCP/ 2010 2010 SIT/ 2010 Sub.: Providing details of Cell ID and Tower Locations 5. Exhibit.407 23.08. Exhibit 408 (colly) Letter O. W. No. 509/ DCP/ 2010 Period - 09.11.2006 to SIT/ 2010 30.11.2006 -(A6) Sub.: Providing Information Exhibit 409 (colly) -

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regarding Period-09.11.2006 to Communication details and 30.11.2006- (A7) subscriber Exhibit 410 (colly) - details of mobile Number Period - 09.11.2006 to Ref: HC - Order - Dated 30.11.2006- Lefty 16.08.2010 in WP/2473/2006 in CR.no. Exhibit 411 (colly) - 246/09 Period - 09.11.2006 to XXXXXX1117 - registered in 30.11.2006-(A5) the name of Mehmud Shaikh (PW96) and used by Shailendra Pandey @ Pinky (A4)

XXXXXX8070 - Akhil Khan @ Bobby (A6) XXXXXX0551 - registered in the name of Avinash Shinde and used by Vinayak Babasaheb Shinde @ Veenu (A7) XXXXXX2771 - registered in the name of Ramesh Chandurkar (PW12) and used by Subhash R. Patel @ Lefty XXXXXX511 - Hitesh Shantilal Solanki (A5) but registered in the name of Shaikh Kaider 6. Exhibit. 412 02.09. Exhibit 413 (colly) 06.09. Letter O. W. No. 532/ DCP/ 2010 2010 SIT/ 2010 Sub.: Providing SDR of mobile Number - XXXXXX5118 - Hitesh

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Shantilal Solanki (A5) but registered in the name of Shaikh Kaider 7. Exhibit. 414 02.09. Exhibit 415 (colly) Letter O. W. No. 528/ DCP/ 2010 Exhibit 416 (colly) - SIT/ 2010 Period - 13.08.2009 to Sub.: Providing hard copies of 05.09.2009- CDR and XXXXXX1117 SDR of mobile Number - Exhibit 417 (colly) - XXXXXX1117- Period - 13.08.2009 to XXXXXX6791 - Janardan 05.09.2009 - (A14) Tukaram Bhanage (A14) in the name of Ashok Sawant (PW74)

XXXXXX5118 - Hitesh Shantilal Solanki (A5) but registered in the name of Shaikh Kaider 8. Exhibit. 418 03.09. Exhibit 419 (colly) - Letter O. W. No. 535/ DCP/ 2010 Period - 13.08.2009 to SIT/ 2010 05.09.2009 - Sub.: Providing hard copies of XXXXXX1059 CDR and SDR of mobile Number - XXXXXX1059 - registered in the name of Ajit Soman and used by Santosh Shettiyar 9. Exhibit. 420 01.10. Exhibit 421 (colly) 06.10. Letter O. W. No. 573/ DCP/ 2010 2010 SIT/ 2010 Sub.: Providing details of tower location of concern cell ids 10. Exhibit. 422 16.12. Exhibit 423 Letter O. W. No. 696/ DCP/ 2010

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SIT/ 2010 Sub.: Providing details of Cell id and tower locations. 11. Exhibit. 424 15.07. Exhibit 425 (colly) Letter O. W. No. 158/ DCP/ 2011 SIT/ 2011 Sub.: Providing details of Cell id and tower locations. 12. Exhibit. 426 18.07. Exhibit 427(colly) 26.07. Letter O.W. No. 2011 2011 161/DCP/SIT/2011 Sub.: Providing details of Cell id and tower locations. 13. Exhibit. 428 02.08. Exhibit 429 (colly) 05.08. Letter O. W. No. 171/SP/ 2011 2011 SIT/2011 Sub.: Providing details of Cell id and tower locations.

14. Exhibit. 430 09.09. Exhibit 431 (colly) 09.09. Letter O. W. No. 192/SP/ SIT/ 2011 2011 2011 Sub.: Provide SDR of Mobile Numbers XXXXXX2771 - registered in the name of Naresh Chandurkar (PW12) and used by Subhash R. Patel @ Lefty XXXXXX8070 - Akhil Khan @ Bobby (A6)

15. Exhibit. 432 09.09. Exhibit. 433(colly) 28.09.

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Letter O. W. No. 189/SP/ SIT/ 2011 Period - 01.08.2009 to 2011 2011 31.01.2010 - Falguni Sub.: Provide CDR & SDR of Brahmabhatt Mobile Numbers XXXXXX0500 - Falguni Brahmabhatt

16. Exhibit. 434 (colly) 24.10. Exhibit. 435 (colly) Letter O.W. No. 252/ SP/ SIT/ 2011 2011 Sub.:Provide certified hard copies of tower locations and coverage area of Cell ids Ref.: Letter O.W. No. 573/DCP/ SIT/ 2010 Dt. 01.10.2010

17. Exhibit. 436 24.10. Exhibit. 437 (colly) 10.11.

Letter O. W. No. 253/ SP/ SIT/ 2011 2011 2011 Sub.: Provide certified hard copies of tower locations and coverage area of Cell ids

18 Exhibit. 438 24.10. Exhibit. 439 10.11. Letter O. W. No. 255/ SP/ SIT/ 2011 2011 2011 Sub.:Provide certified hard copies of tower locations and coverage area of Cell ids Ref.: Letter O. W. No. 696/DCP/ SIT/ 2010 Dt. 16.12.2010

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19 Exhibit. 440 24.10. Exhibit. 441 (colly) 10.11. Letter O. W. No. 257/ SP/ SIT/ 2011 2011 2011 Sub.: Provide certified hard copies of tower locations and coverage area of Cell ids Ref.: Letter O. W. No. 171/DCP/ SIT/ 2011 Dt. 02.08.2011

20. Exhibit. 442 24.10. Exhibit. 443 (colly) 10.11. Letter O. W. No. 258/ SP/ SIT/ 2011 2011 2011 Sub.: Provide certified hard copies of tower locations and coverage area of Cell ids Ref.: Letter O. W. No. 161/DCP/ SIT/ 2011 Dt. 18.07.2011

21 Exhibit. 444 18.07. Exhibit. 445 (colly) Letter O. W. No. 160/ DCP/ 2011 Period-01.02.2011 to SIT/ 2011 18.07.2011 - Anil Bheda Sub.: Providing hard copy of SDR and CDR of Mobile Number XXXXXX6351-Anil Bheda

22 Exhibit. 446 31.10. Exhibit. 447(colly) Letter O. W. No. 2011 269/SP/SIT/2011 Sub.: Provide SDR of Mobile

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number XXXXXX5550 - registered in the name of Chandan Singh and used by Subhash R. Patel @ Lefty XXXXXX0768 - registered in the name of Sairaj Ansari and used by Subhash R. Patel @ Lefty

23 Exhibit. 448 29.09. Exhibit. 449 (colly) Letter O. W. No. 225/ SP/ SIT/ 2011 2011 Sub.: Provide SDR of Mobile number XXXXXX7645 - registered in the name of Radha Indulkar and used by Subhash R. Patel @ Lefty

24 Exhibit. 450 29.09. Exhibit. 451 (colly) Letter O. W. No. 227/ SP/ SIT/ 2011 2011 Sub.: Provide original subscriber's application forms of mobile user Radha Indulkar

25. Exhibit. 452 29.09. Exhibit. 453(colly) -

Letter O. W. No. 235/ SP/ SIT/ 2011 Akhil Shirin Khan 2011 -Naresh Chandurkar Sub.: Provide original -Manoj Kambale

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subscriber's -Mehmood Shaikh application forms of mobile - Ajit Soman user -Ashok Sawant Akhil Shirin Khan, Naresh Chandurkar, Manoj Kambale, Mehmood Shaikh, Ajit Soman, Ashok Sawant 26. Exhibit. 454 23.03. Exhibit. 455(colly) Letter O. W. No. 240/DCP/ 2010 Period - 10.11.2006 to SIT/ 2010 16.11.2006-(A7) Sub.: Providing hard copies of information already sent through email Ref.: Letter O. W. No. 128/ DCP/ SIT/ 2010 Dt. 09.02.2010 XXXXXX0551 - registered in the name of Avinash Shinde and used by Vinayak Babasaheb Shinde @ Veenu (A7)

27. Exhibit. 456 29.01. Exhibit. 457 Letter O. W. No. 12/ DCP/ 2011 SIT/ 2011 Sub.: Providing details of Cell ID and tower locations 28. Exhibit. 458 26.03. Exhibit. 459 (Colly) Letter O. W. No. 261/ DCP/ 2010 SIT/ 2010 Sub.: provide details of the Cell IDs and tower locations. 29. Exhibit. 460 Exhibit. 461 (Colly) Letter O. W. No. 149/ DCP/ 20.02. 11.03.

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SIT/ 2010 2010 2010 Sub.: Provide details of the Cell IDs and tower locations.

30. Exhibit. 462 01.03. Exhibit. 463 (Colly) 11.03. Letter O. W. No. 159/ DCP/ 2010 2010 SIT/ 2010 Sub.: Provide details of the Cell IDs and tower locations. 31 Exhibit. 464 Details of Cell IDs and tower locations, (recorded under 161 statement of PW54 and corrected copy of Exh. 459) 32 Exhibit. 465 (Colly) CDR details of Mobile Number - XXXXXX0500 - Falguni Brahmabhatt

The said information supplied was marked as Exhibits

as mentioned herein above. There was no objection with respect

to the marking of the said documents/information provided by

the said witness, raised by the accused.

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1. PW97 - Vikas Narayan Phulkar

311 Vikas Narayan Phulkar was examined as PW97 by

the prosecution. The said witness was working as an Alternate

Nodal Officer with the Vodafone Company at the relevant time.

He too had provided requisite documents/information as sought

for by the SIT. The said documents/information as sought for as

under:

Sr. Request Letter for Mobile Dated Information Provided Dated No. Number by by the Nodal SIT Officer 1 Exhibit. 422 16.12.2010 Exhibit 423 Letter O. W. No. 696/ DCP/ SIT/ 2010 For providing details of Cell id and tower locations.

2. Exhibit. 432 09.09.2011 Exhibit. 433 (colly) Letter O. W. No. 189/ SP/ Period - 01.08.2009 SIT/ 2011 to For providing CDR & SDR 31.01.2010 - Falguni of Mobile Brahmabhatt Numbers XXXXXX0500 - Falguni Brahmabhatt 3 Exhibit. 444 18.07.2011 Exhibit. 445 (colly) -

Letter O. W. No. 160/ DCP/ Period - 01.02.2011 SIT/ 2011 to For providing hard copies of 18.07.2011 - Anil SDR and CDR Bheda of Mobile Number XXXXX6351-Anil Bheda

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4 Exhibit. 446 31.10.2011 Exhibit. 447 (colly) Letter O. W. No. 269/ SP/ SIT/ 2011 For providing SDR of Mobile number XXXXXX5550 - Chandan Singh XXXXXX0768 - Sairaj Ansari 5 Exhibit. 448 29.09.2011 Exhibit 449 (colly) Letter O. W. No. 225/ SP/ SIT/ 2011 For providing SDR of Mobile number XXXXXX7645 - registered in the name of Radha Indulkar and used by Subhash R. Patel @ Lefty 6 Exhibit. 452 29.09.2011 Exhibit. 453 (colly) Letter O. W. No. 235/ SP/ - Akhil Shirin Khan SIT/ 2011 - Naresh Chandurkar To provide original - Manoj Kambale subscriber's application - Mehmood Shaikh forms of mobile user - Ajit Soman Akhil Shirin Khan, Naresh -Ashok Sawant Chandurkar, Manoj Kambale, Mehmood Shaikh, Ajit Soman, Ashok Sawant 7 Exhibit. 414 02.09.2010 Exhibit 415 (colly) Letter O. W. No. 528/ DCP/ Exhibit 416 (colly) SIT/ 2010 - Period -

For providing hard copies of 13.08.2009 to CDR and SDR 05.09.2009- of mobile user - XXXXXX1117 XXXXXX1117- Exhibit 417 - Period - XXXXXX6791 - Janardan 13.08.2009 to Tukaram Bhanage 05.09.2009 - (A14) (A14) in the name of Ashok

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Sawant (PW74) XXXXXX 5118 - Hitesh Shantilal Solanki (A5) but registered in the name of Shaikh Kaider 8 Exhibit. 420 (colly) 01.10.2010 Exhibit 421 (colly) 06.10.2010 Letter O. W. No. 573/ DCP/ SIT/ 2010 For providing details of tower locations of concerned cell ids 9 Exhibit. 424 15.07.2011 Exhibit 425 (colly) Letter O. W. No. 158/ DCP/ SIT/ 2011 For providing details of the mobile Cell ids. 10 Exhibit. 426 18.07.2011 Exhibit 427 (colly) 26.07.2011 Letter O. W. No. 161/ DCP/ SIT/ 2011 For providing details of the mobile Cell ids. 11 Exhibit. 440 24.10.2011 Exhibit. 441 (colly) 10.11.2011 Letter O. W. No. 257/ SP/ SIT/ 2011 To get certified hard copies of tower locations and coverage area of Cell ids Ref.: Letter O. W. No. 171/DCP/ SIT/ 2011 Dt. 02.08.2011 12 Exhibit. 442 24.10.2011 Exhibit. 443 (colly) Letter O. W. No. 258/ SP/ SIT/ 2011 To get certified hard copies of 'tower locations and coverage area of Cell ids Ref.: Letter O. W. No. 161/DCP/ SIT/ 2011 Dt. 18.07.2011

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The said information/certificate as provided has been

duly exhibited through the said witness. Admittedly, there is no

cross-examination with respect to any objection regarding

exhibiting of documents/information supplied by the said witness.

312 Although, the said witness was cross-examined with

respect to certification of electronic records, the said witness has

stated that electronic records are certified only if Law

Reinforcement Agency makes a request to that effect.

PW62 - Rakeshchandra Rambuz Prajapati

313 PW62-Rakeshchandra Rambuz Prajapati, was initially

serving in BPL Mobile Communication Ltd. which was at the

relevant time known as 'Loop Mobile India Limited' and since

October 2008 was serving as a Nodal Officer. He has stated that

information was furnished to the Security Agencies, when sought.

He has stated that on-line CDR is maintained for one year and

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old records are kept in magnetic cassettes as a back-up. The said

witness has supplied following information as sought for by the

SIT.

Sr. Request Letter for Mobile Number Dated Informa-tion Dated No. by Provided by SIT the Nodal Officer 1 Exhibit. 520 12.11.2009 Exhibit. 521 30.11.2 Letter O. W. No. 115/ DCP/ SIT/ (colly) 009 2009 Sub.: Provide Information regarding incoming and outgoing calls made from & received on cellular nos. Ref.: HC Order Dt. 10.09.2009 in connection with C.W.P 2473/2006 XXXXXX1323 - Tanaji B. Desai (A2) XXXXXX2052 - Nitin Sartape (All) XXXXXX7293 - Devidas G. Sakpal (Al3) XXXXXX3538 - Dilip S. Palande (Al5) XXXXXX2362 - registered in the name of Mangesh Sawant and used by Anand Balaji Patade (A18) XXXXXX3395 - Sandeep H. Sardar (A20) XXXXXX6188 -Arvind A. Sarvankar (A22) XXXXXX4570 - Harishankar Sharma 2 Exhibit. 522 21.12.2009 Exhibit. 523 06.01.2

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Letter O. W. No. 161/ DCP/ SIT/ (colly) 010 2009 Sub.: Provide Details of Mobile No. XXXXXX1323 - Tanaji B. Desai (A2) XXXXXX3457 - Ratnakar G. Kamble (A3) XXXXXX7293 - Devidas G. Sakpal (A13) 3 Exhibit. 524 26.01.2010 Exhibit. 526 Letter O. W. No. 78/ DCP/ SIT/ (colly) 2010 Exhibit. 525 (colly) -Email Dt. Exhibit. 528 06.01.2010 Email O.W. No. 04/ DCP/ SIT/ Exhibit. 530 2010 Exhibit. 527 -Email Dt. 06.01.2010 Email O.W. No. 05/ DCP/ SIT/ 2010 Exhibit. 529 (colly) - Email Dt.06.01.2010 Email O.W. No. 06/ DCP/ SIT/ 2010 Sub.: Providing certified hard copies of CDR & SDR for Letter 5 letter sent by SIT O. W. No. 115/ DCP/ SIT/ 2009 Dt. 12.11.2009 O. W. No. 161/ DCP/ SIT/ 2009 Dt. 21.12.2009 O. W. No. 04/ DCP/ SIT/ 2010 Dt. 06.01.2010 O. W. No. 05/ DCP/ SIT/ 2010 Dt. . 06.01.2010 0. W. No. 06/ DCP/ SIT/ 2009 Dt. 06.01.2010

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4 Exhibit. 534 22.03.2010 Exhibit. 535 25.03.2 Letter O. W. No. 235/ DCP/ SIT/ (colly) 010 2010 Sub.: Providing hard copies of information already sent through email Ref.: Letter O.W. No. 138/ DCP/ SIT/ 2009 Dt. 27.11.2009 XXXXXX2987 - used by Pradeep R. Sharma (A1) and registered in the name of Hitesh Solanki (A5) 5 Exhibit. 536 26.01.2010 Exhibit. 537 Letter O. W. No. 79/ DCP/ SIT/ (colly) 2010 Reply to the Sub.: Provide Tower locations and emial dated coverage 22.03.2010 area of cell ID sent by PW110 via. Email - O.W. No.72/DCP/SI T/2010 6 Exhibit. 538 22.03.2010 Exhibit. 539 23.03.2 Letter O.W. No. 228/DCP/ SIT/ (colly) 010 2010 Sub.: Provide Tower locations and coverage area of cell ID 7 Exhibit. 540 (colly) 22.03.2010 Exhibit. 539 23.03.2 Email O.W. No. 230/ DCP/ SIT/ (colly) 010 2010 Sub.: Provide lower locations and coverage area of cell ID Email Copy of Exh.538 8 Exhibit. 541 (colly) 25.01.2010 Exhibit. 537 27.01.2 Email - O.W.No. (colly) 010 72/DCP/S1T/2010 Email Copy of Exh.536

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9 Exhibit. 542 23.08.2010 Exhibit. 543 15.09.2 Letter O. W. No. 508/ DCP/ SIT/ (colly) 010 2010 Sub.: information regarding communication details and subscriber details of Mobile Numbers Ref.: HC order dated 16.08.2010 in WP/ 2473/2006 in connection with Cr.no.246/2009 XXXXXX1323 - Tanaji B. Desai (A2) XXXXXX3457 - Ratnakar G. Kamble @ Rattu (A3) XXXXXX3395 - Sandeep Hemraj Sardar (A20) XXXXXX3538 - Dilip Sitaram Palande (Al 5) XXXXXX6188 -Arvind Arjun Sarvankar (A22) XXXXXX2987 - used by Pradeep R. Sharma (A1) and registered in the name of Hitesh Solanki (A5) XXXXXX1156 - Hitesh Shantilal Solanki (A5) XXXXXX5068, XXXXXX5874, XXXXXX5805, XXXXXX8104 10 Exhibit. 544 14.09.2010 Letter O. W. No. 555/ DCP/ SIT/ 2010 Sub.: Provide Information regarding communication details and subscriber details of mobile Numbers Ref: O.W.No. 508/ DCP/ SIT/

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2010 dated 23.082010 11 Exhibit. 545 02.09.2010 Exhibit. 546 03.09.2 Letter O. W. No. 531/DCP/ SIT/ (colly) 010 2010 Sub.: providing CDR and SDR of Mobile user. For Details of Mobile No. XXXXXX6311 - registered in the name of Mr. Mohammad. Usman Iliyas Shaikh (PW88) and used by Shailendra Pandey 12 Exhibit. 547 13.10.2010 Exhibit. 548 21.10.2 Letter O. W. No. 591/ DCP/ SIT/ (colly) 010 2010 Sub.: Tower locations and coverage area of cell ID 13 Exhibit. 549 03.11.2010 Exhibit. 550 14.12.2 Letter O. W. No. 615/ DCP/ SIT/ (colly) 010 2010 Sub.: Providing information regarding communication details of Mobile numbers For Mobile Numbers: XXXXXX1323 - Tanaji B. Desai (A2) XXXXXX3457 - Ratnakar G. Kamble @ Rattu (A3) 14 Exhibit. 551 29.01.2011 Exhibit. 552 02.02.2 Letter O. W. No. 12/ DCP/ SIT/ 011 2011 Sub.: Providing details of Cell id and tower locations 15 Exhibit. 553 31.01.2011 Exhibit. 554 10.02.2

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Letter O. W. No. 16/ DCP/ SIT/ (colly) 011 2011 Sub.: Providing details of Cell id and tower locations 16 Exhibit. 555 01.03.2011 Exhibit. 556 03.03.2 Letter O. W. No. 24/ DCP/ SIT/ 011 2011 Sub.: Providing details of Cell id and Tower Locations Ref.: Nodal Officers letter LMIL/2011/3017 dated 02.02.2011 17 Exhibit. 557 02.08.2011 Exhibit. 558 04.08.2 Letter O. W. No. 171/SP/ SIT/2011 (colly) 011 Sub.: Provide details of the mobile Cell ids.

18 Exhibit. 559 09.09.2011 Exhibit. 560 13.09.2 Letter O. W. No. 190/ SP/ SIT/ (colly) 011 2011 Sub.: Provide SDR & CDR of Mobile number Ref.: O.W.No.2459/DCP/Z-9/R/2009 dated 29.08.2009 XXXXXX6490- Mr. Ramprasad Vishwanath Gupta (PW1) (Complainant), Exh. 113

19 Exhibit. 561 24.10.2011 Exhibit. 562 04.11.2 Letter O. W. No. 250/SP/ SIT/ (colly) 011 2011 Sub.: To get certified hard copies of Tower Locations and coverage area of Cell Ids.

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O.W.No. 79/DCP/SIT/2010 Dt. 26.01.2010 Nodal Officers letter dated 27.01.2010 LMIL/2010/1412 20 Exhibit. 563 24.10.2011 Exhibit. 564 04.11. Letter O. W. No. 251/SP/ SIT/ (colly) 2011 2011 Sub.: To get certified hard copies of tower locations and coverage area of cell ids. Ref.: O.W. No. 171/DCP/SIT/2011 Dt. 02.08.2011 Nodal Officers letter dated 04.08.2011 LMIL/2010/25500

All the document/information were marked as Exhibits.

314 As far as one discrepancy with respect to Exh.-528 is

concerned, why the said information was supplied has been spelt

out by the said witness and as such there is no discrepancy with

respect to the same. The said witness has also stated that the

certificate is furnished only when called for and in the present

case only once it was sought and hence, the rest of the

information furnished, without certificate. All such

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documents/information furnished by the said witness have been

exhibited without any objection being raised with respect to the

same, that it was without a Section 65B certificate. The said

witness has also explained the discrepancies alleged by the learned

counsel for the appellants-accused, between Exhibits 560 and

597.

PW65 - Yogesh Shrikrishna Rajapurkar

315 PW65 - Yogesh Shrikrishna Rajapurkar, was serving

in Bharti Airtel Limited as an Assistant Nodal Officer, at the

relevant time. He has set out how data is retrieved and how

information is supplied to Law and Enforcement Agency and

how data beyond one year is preserved by I.T. and how the data

is retrieved from the master computer. The said witness has

furnished information/document pertaining to the following

persons:

No. Request Letter for Mobile Number by Dated Information Dated SIT Provided by the Nodal

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Officer 1 Exhibit. 570 22.03. Exhibit. 571 25.03.

Letter O. W. No. 227/DCP/ SIT/ 2010 2010 (colly) 2010 Sub.: Providing Tower locations and coverage area of cell ID 2 Exhibit. 572 11.06. Exhibit. 573 Letter O. W. No. 81/DCP/ SIT/ 2010 2010 (colly.) Sub.: Providing details of cell ID and tower locations 3 Exhibit. 574 19.10. Exhibit. 575 26.10.20 Letter O. W. No. 596/DCP/ SIT/ 2010 2010 (colly.) 10 Sub.: Providing details of tower locations of concern cell ID's 4 Exhibit. 576 19.06. Exhibit. 577 29.06.

Letter O. W. No. 396/DCP/ SIT/ 2010 2010 2010 Sub.: Providing S.D.R. of the mobile nos.

XXXXXX4123 (Mr. Shyamsunder Vishwanath Gupta (PW3), Exh. 157) on 11.11.2006 & its date of activation 5 Exhibit. 578 22.03. Exhibit. 579 Letter O. W. No. 228/DCP/ SIT/ 2010 2010 (colly.) Sub.: Providing hard copies of information already sent through email Ref.: O.W. No. 83/ DCP/ SIT/ 2010 Dt.

28.01.2010 - as regards to SDR, Date of activation, CDR with cell ID and Tower location

6 Exhibit. 580 23.08. Exhibit. 17.09.

Letter O. W. No. 507/DCP/ SIT/ 2010 2010 581(colly. 2010 Sub.: providing information regarding communication details & subscriber details of mobile number.

7 Exhibit. 582 26.03. Exhibit. 583 Letter O. W. No. 260/DCP/ SIT/ 2010 2010 (colly.) ) Sub.: Providing hard copies of information already sent through email.

XXXXXX0098 - registered in the name of Medha Sawant and used by DCP Sawant

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(Not examined) XXXXXX3333 - Bipin Bihari in the name of Novex Communications Pvt. Ltd.

XXXXXX5437- Manoj Wayale XXXXXX7367 - Vishwanath Shetty PW75 XXXXXX9023 - Shailendra Pandey (A4) XXXXXX9096 - Arun S. Kaushik XXXXXX7777 - Mohammad Sait 8 Exhibit. 584 02.09. Exhibit. 585 Letter O. W. No. 527/DCP/ SIT/ 2010 2010 (colly.) Sub.: Providing CDR and SDR of mobile number XXXXXX9023 (Shailendra D Pandey - (A4) along with cell ID & Tower location

PW69 - Shekhar Vinayak Palande

316 PW69 - Shekhar Vinayak Palande, was serving as a

Nodal Officer in Tata Tele Services, Maharashtra Limited, at the

relevant time. He too has stated how the data is stored and how

the data is made available to Law and Enforcement Agencies.

The said witness has supplied information as sought for by the

SIT of the following persons:

Sr.No. Request Letter for Dated Information Provided by Dated Mobile Number the Nodal by Officer SIT 1 Exhibit. 606 02.09. Exhibit. 607 (colly) 03.09.

Letter O. W. No. 2010 2010 529/ DCP/ SIT/ 2010

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Sub.; Providing hard copies of CDR and SDR of mobile user - XXXXXX4910 (Mr. Dheeraj Mehta (PW38), Exh.271

The documents/information furnished by this witness

have been exhibited without any objection i.e. there was no

Certificate under Section 65B of the Evidence Act.

316.1 In his cross-examination the said witness has stated

that a certificate is issued, when it is required by the Law and

Enforcement Agencies. The said witness has explained that the

blanks are to the extent of SMS only.

PW85 - Divakar Mohan Rao

317 PW85 - Divakar Mohan Rao was working in Reliance

Communication Limited as a Legal Officer during the period

March 2004 to July 2008. He has stated that in the month of

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2008 he was called by the Railway Mobile Court, Andheri,

Mumbai, pursuant to the summons (Exh. - 650). He has stated

that he was asked to produce call details of Mobile No.

XXXXXX3863 (Anil Bheda); XXXXXX8877 (Ramnarayan

Gupta) for the month of November 2006 and Mobile Number

XXXXXX9531 (PW38) for the period 11 th November 2006 to

13th November 2006. He has stated that he could produce details

of only two numbers i.e. XXXXXX3863 (Anil Bheda);

XXXXXX8877 (Ramnarayan Gupta). He has stated that he

submitted his affidavit alongwith call data record of these two

mobile numbers. He has identified his affidavit which bears his

signature and that its contents were true and correct. The

affidavit was marked as Exh. - 651 and CDR as Exh. - 652

(colly). He has stated that as far as XXXXXX9531 (PW38 -

Dheeraj Mehta) is concerned, he could not furnish his CDR. He

has further stated that he also furnished information of

Ramprasad Gupta (PW1) of his mobile XXXXXX0012 for the

period of November 2006. He has stated that the information

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supplied was during the period 11th November 2006 to 13th

November 2006 and that the said CDR were certified by him. He

has further stated that their company preserves data for a period

of one year after which the data is deleted; that High Court had

directed to preserve hard copies and therefore the said data was

preserved by way of hard copies of XXXXXX3863 and

XXXXXX8877; that this Court had issued the said order in the

year 2007 and it was within the period of one year that he took

out the print-outs.

317.1 There is nothing in the cross-examination of the said

witness to disbelieve his testimony.

Sr. Request Letter for Mobile Number Dated Information Provided by Dated No. by the Nodal SIT Officer 1 Exhibit. 650 Exhibit. 652 Summons served by Railway Mobile Produced before Railway Court, Andheri in 176(1) (a) of Cr.PC Mobile Court., inquiry asking to produce call detail Andheri in 176(1) (a) of records of mobile numbers Cr.PC inquiry XXXXXX3863(Anil Bheda) pursuant to summons (Exh.

650) XXXXXX 8877(Ramnarayan) Sub.: CDR produced

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XXXXXX 3863 - Anil XXXXXX 9531 Bheda (2006)

XXXXXX 8877 - registered in the name of Anil Bheda and used by Ramnarayan (Deseased)

PW89 - Rajesh Sampatrao Gaikwad

318 PW89 - Rajesh Sampatrao Gaikwad was serving in

Reliance Communication Limited, Mumbai, as a Nodal Officer in

November 2007. He has stated that in his capacity as a Nodal

Officer, he provided information to Law Enforcement Agencies in

respect of CDR, SDR, Locations and Customers Application

Forms. He has further stated that the record of incoming and

outgoing calls as well as SMS is automatically served in the server

of his office at Navi Mumbai and that there cannot be manual

and technical interference in the data stored on the server and

that there is also a backup system in their office and if there is

any technical failure in the server, to overcome it there is a

backup server and that the data is not lost under these

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circumstances. The said witness has supplied

documents/information pertaining to the following persons:

Sr. Request Letter for Mobile Number by Dated Information Dated No. SIT Provided by the Nodal Officer 1 Exhibit. 676 01.03. Exhibit. 677 09.03.20 Letter O. W. No. 23/ DCP/ SIT/ 2011 2011 11 Sub.: Provide SDR of mobile number XXXXXX9998 for the month of November 2006 (Mr. Shankar @ Girish Dal Singh (PW57) 2 Exhibit. 678 03.03. Exhibit. 679 09.03.20 Letter O. W. No. 26/ DCP/ SIT/ 2011 2011 11 Sub.: Provide details of Cell ID and tower location 3 Exhibit. 680 09.09. Exhibit. 681 10.09.20 Letter 0. W. No. 191/ SP/ SIT/ 2011 2011 11 Sub.: Provide SDR of mobile number as on 11 November 2006 XXXXXX 9531 - Dheeraj Mehta (PW38) XXXXXX 8877 - registered in the name of Anil Bheda and used by Ramnarayan (Deseased) XXXXXX 0012 - Adv. Ramprasad Gupta (PWl) XXXXXX 3863 - Anil Bheda (2006) 4 Exhibit. 682 16.12. Exhibit. 683 24.12.20 Letter O. W. No. 695/ DCP/ SIT/ 2010 2010 (colly.) 10 Sub.: Provide CDR reports as per directions of the Hon'ble High Court, as on 11 & 12 November, 2006.

November, 2006

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9324378877 - registered in the name of Anil Bheda and used by Ramnarayan (Deseased) XXXXXX3863 - Anil Bheda (2006) Exhibit. 684 20.03. Exhibit. 685 29.03.20 Letter 0. W. No. 225/ DCP/ SIT/ 2010 2010 10 Sub.: Furnish tower locations and coverage area area ID's and BTS as on 11.11.2006

The documents furnished by the said witness has been

duly exhibited and no objection has been taken at the time of

exhibiting of the said documents, with respect to want of

certification under Section 65B.

319 From the evidence on record of the Nodal Officers

and other prosecution witnesses, we find that the prosecution has

duly established that the appellants were using the following

mobile numbers. Infact, some of the accused have not disputed

using the mobile numbers as alleged by the prosecution.

320 The following mobile numbers were used by the

appellants/ accused:

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- OA1 was using mobile No. XXXXXX2987. The said

number stood in A5's name;

- A2 was using mobile No. XXXXXX1323. The said

number stood in A2's name;

- A3 was using mobile No. XXXXXX3457. The said

number stood in A3's name;

- A4 was using mobile No. XXXXXX9023. The said

number stood in A4's name; A4 was also using mobile No.

XXXXXX1117. The said number stood in the name of PW96-

Mehamood Shaikh;

- A5 was using mobile Nos. XXXXXX1156,

XXXXXX5068, XXXXXX5874, XXXXXX5805 and

XXXXXX8104 and the said numbers stood in A5's name; A5

was also using mobile No. XXXXXX5118 and the said number

stood in the name of Shaikh Kaider;

- A6 was using mobile No. XXXXXX8070. The said

number stood in A6's name;

- A7 was using mobile No. XXXXXX0551. The said

number stood in Avinash Shinde's name;

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- A9 was using mobile No. XXXXXX6442. The said

number stood in A9's name;

- A11 was using mobile No. XXXXXX2052. The said

number stood in A11's name;

- A13 was using mobile No. XXXXXX7293. The said

number stood in A13's name;

- A15 was using mobile No. XXXXXX3538. The said

number stood in A15's name;

- A17 was using mobile No. XXXXXX8210. The said

number stood in A17's name;

- A18 was using mobile No. XXXXXX2362. The said

number stood in Mangesh Yashwant Sawant's name;

- A20 was using mobile No. XXXXXX3395. The said

number stood in A20's name;

- A22 was using mobile No. XXXXXX6188. The said

number stood in A22's name. (A22's appeal stands abated in

view of his demise, during the pendency of his appeal.)

321 If we peruse the CDR furnished by the aforesaid

Nodal Officers, which have been duly exhibited by the aforesaid

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Nodal Officers, it would be evident that the locations of the

accused were as under:

Locations of the Accused on 10th November 2006:

I. Between 16:45 to 20:10 hours: A4 (Mobile XXXXXX9023 standing in his name A4's name) was outside Anil Bheda's house (Sector 29), keeping a watch. Thereafter A2, A3, A6 and A7 also reached near the house of Anil Bheda.

(i) CDR of A4 (Exh. - 581) Airtel Cell ID locations (Exh. 571) would show that A4 at around 16:45:06 was next to Abbot Hotel, Opposite Navratna Hotel, Vashi. There is a call by A4 from XXXXXX9023 (Mobile No. stands in A4's name) to 9221248858;

(ii) CDR of A2 (Exh. - 543) Loop Cell ID locations would show that A2 around 19:34:07 was near Corsica, Vashi, Sector 29, Vashi Interior. From the CDR it appears that A2 received a call on XXXXXX1323 from XXXXXX0502;

(iii) CDR of A3 (Exh. - 543) Loop Cell ID locations would show that A3 at 19:32:26 was at Shubham, Kopar Khairane.

There is a call by A3 from XXXXXX3457 to XXXXXX8252.;

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(iv) CDR of A6 (Exh. - 408) Vodafone Cell ID locations shows

that A6 at 19:32:02 was at Sector 12, E Near Balaji Garden, Kopar Khairane. There is call on A6's number i.e. XXXXXX8070 by A4;

(v) CDR of A7 (Exh. - 408) Vodafone Cell ID locations would show that A7 at 19:37:23 was at Sector 29, Vashi, Navi Mumbai.

Locations of the Accused on 11th November 2006:

I. 00:21 hours: While at Mira Bhayandar, A4 called Subhash Patel @ Lefty (Informer).

(i) CDR of A4 (Exh. - 581) Airtel Cell ID locations (Exh. 571) would show that A4 at 12:21:49 was at Mira Bhayendar Road.

There is a call made by A4 from XXXXXX9023 to Subhash Patel @ Lefty;

II. 05:25 or 05:22 hours: While at Mira Bhayandar, A4 called A7, who was at Kalwa, Thane

(i) CDR of A4 (Exh. - 581) Airtel Cell ID locations (Exh. 571) would show that A4 at 05:25 was at Jayshree Sadan Ekta, Opp. Sarvoday Complex Near Golden Nest, Mira Bhayander Road. There is a call made by A4 from XXXXXX9023 to A7;

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(ii) CDR of A7 (Exh. - 408) Vodafone Cell ID locations shows

that A7 at 5:22:02 was at that time between 5:22 to 5:25 at Manisha Nagar, Opp. National Hotel, Kalwa, Thane;

III. 06:31 to 2:27 hours: A4 and A/7 alongwith A8, A10, A12 and A21 reached near house of Anil Bheda. During this time, Subhash Lefty (Informer) was also nearby.

(i) CDR of A4 (Exh. - 581) Airtel Cell ID locations (Exh. 571) would show that A4 at 06:31 was at Kopar Khairane, Navi Mumbai. There is a call made by A4 to A7 at 6:31;

(ii) CDR of A7 (Exh. - 408) Vodafone Cell ID locations shows that A7 at 10:09 was at Plot No.9/10, Sector 19-A, Vashi, Navi Mumbai;

(iii) CDR of Subhash Lefty (Exh. - 410) Vodafone Cell ID locations shows that Subhash Lefty at 07:07 was at Sector 12, Near Balaji Garden, Kopar Khairane, Navi Mumbai. There is a call by A4 to Subhash Lefty.

IV. 09:04 hours: Deceased called his wife (Subhalakshmi) from the house of Anil Bheda. Number of Ramnarayan's wife XXXXXX5138.

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(i) CDR of Ramnarayan (Exh. - 683) and Cell ID locations

(Exh. 685) is duly corroborated by the evidence of PW1 - Ramnarayan, who had deposed the number of wife of Lakhan in his examination-in-chief. The said evidence has gone unchallenged.

V. 10:29 hours: Ramnarayan called PW38 - Dheeraj from Anil Bheda's house.

(i) CDR of Ramnarayan (Exh. - 683) and Cell ID locations (Exh. 685) is duly corroborated by the evidence of PW1 - Ramnarayan, reflects the call made by Ramnarayan (deceased) to PW38 at 10:29 from Agradeep, Sector 14, Vashi, Agra Nalanda, Thurbhe.;

VI. 12:15 hours: Ramnarayan and Anil Bheda went to PW38

- Dheeraj's shop as per the evidence of PW40. Even as per the evidence of PW38, Ramnarayan and Anil Bheda had reached his shop at around 12:15 p.m.

VII. 12:27 hours: A4 called A7. The said call started at Sector 29, Vashi and the said call continued for about 553 seconds (Exh. - 581).

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(i) CDR of A4 (Exh. - 581) and Airtel Cell ID locations (Exh.

571) shows that A4 at 12:27 was at Office No.110, 1st Floor, Plot No.14-B, Sector 19, Vashi, Navi Mumbai. There is a call by A4 to A7 at that time and thereafter at Plot No.30, Sector 2, Vashi, Navi Mumbai. The said CDR of A4 is duly corroborated by CDR of A7 (Exh. - 408) and Vodafone Cell ID locations (Exhibits 421 & 406).

VIII. 12:31 - 12:33 hours: After reaching PW38's shop, Ramnarayan was waiting outside PW- 38's shop and called to different persons from Sector - 9A while he was standing on road.

(i) CDR of Ramnarayan (Exh. - 683) and Cell ID locations (Exh. 685) would show that Ramnarayan at 12:31 was at Anand Niketan CHSL, Plot No.46, Sector 9A, Vashi, Navi Mumbai. There is a call made by Ramnarayan to XXXXXX7194. The second call was made by Ramanarayan to XXXXXX8777 at 12:33, when he was at Anand Niketan CHSL, Plot No.46, Sector 9A, Vashi, Navi Mumbai;

(ii) CDR of Ramnarayan (Exh. - 683) and Cell ID locations (Exh. 685) corroborates the same. It is thus evident that till 12:35 Ramnarayan was at Sector 9A, Vashi, Navi Mumbai.

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IX. 12:39 hours: After abduction from Sector 9A, there is

call by A7 to OA1 and by Subhash @ Lefty to A4. There are CDR records to support the same.

(i) CDR of A7 shows a call made by him at 12:39 from F-1, Building, Sector 9, Vashi, Kopar Khairane Road, Vashi. Vodafone Cell ID locations (Exh. - 421) would reveal the same.

(ii) Similarly, CDR of OA1 (Exh. - 543) and his Loop Cell ID locations (Exh. - 548) shows that OA1 at 12:39 was at Esic Nagar (D.N. Nagar, YMCA Area, The Club Area).

(iii) CDR of Lefty (Exh. - 453) and Vodafone Cell ID locations (Exh. - 421) would show that Subhash Patel @ Lefty called A4 at 12:39 when he was Opposite Model Co-op. Bank, Sector 9, Plot No. 46, Vashi and CDR of A4 (Exh. 581) and Airtel Cell ID locations (Exh. - 571) at 12:36 was Next to Abbot Hotel, Opp. Navratna Hotel, Vashi.

X. 12:40 hours: Nilesh (who saw the abduction) informed PW38 that his friend and his friend's friend had been taken away by 5 - 6 persons in a qualis vehicle. The same has been deposed to by PW38.

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XI. 13:00 hours: PW57 - Shankar @ Girish Dalsingh called

PW38 inquiring about Ramnarayan and Anil Bheda; that PW38 informed PW57 about abduction. The same has been deposed to by PW38 and is duly corroborated by PW57, PW1 and PW3.

XII After 13:00 hrs PW3 received repeated calls from different persons including PW57 who informed him about abduction. The same has been deposed to by PW3 and PW57.

XIII 13:14 - 13:20 - A4 and A7 are alleged to have gone to Bhandup Complex from Vashi and A2, A3 and A6 are stated to have come to Bhandup Complex after the abduction. The CDR of the said accused would reveal as under:

(i) CDR of A4 (Exh. 581) and Airtel Cell ID locations (Exh.

571) of A4 shows that at 13:17 he had made a call from Dargah Crossroad, Sonapur, Bhandup on a landline number XXXXXX7777;

(ii) CDR of A2 (Exh. 521) and Loop Cell ID locations (Exh.

537) shows that A2 at 13:14 was at Kukreja Complex, Bhandup. There is a call by A2 to A7 at the said time;

(iii) CDR of A7 (Exh. 408) and Vodafone Cell ID locations (Exh. 421) shows that A7 at 13:14 was at Plot No. 370, Shivaji

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Chowk, Mulund Colony. There is a call by A2 to A7 on the said time and

(iii) CDR of A3 (Exh. 521) and Loop Cell ID locations (Exh.

548) shows that A3 at 13:40 was near MIDC, Andheri (East).

The same is evident from a call received by A3 from XXXXX1859.

XIV. 13:57 or 14:00 hours: PW1 had received a call from PW3, who informed him about the abduction. This has come as per evidence of PW1, specifically at para 4.

(i) CDR of PW3 (Exh. - 579) Airtel Cell ID locations (Exh.

571) would show that PW3 at around 14:00 was at S.I.E.S College, P.V Chidambaram Marg, Sion (E), Mumbai. There is a call made by PW3 from XXXXXX6540 to PW1 from XXXXXX6490.

(ii) CDR of PW1 (Exh. - 560) Loop Cell ID locations (Exh.

564) would show that PW1 at around 13:57 was at Plot No. 14 & 56, Swastik Park, Opp. Swastik Chambers, CST Road, Chembur, Mumbai-400071. This is apparent from the call made by PW3 from XXXXXX6540 to PW1 from XXXXXX6490.

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XV. About 14:00 - 14:15 hours: PW1 had reached the shop of PW3 and was discussing the said incident of abduction with him. At that time, PW3 received a call and PW1 took his phone and talked with the caller, who introduced himself as Dhiraj and stated his mobile number as XXXXXX9531. This has come as per the evidence of PW1 (Exh. 113) and as per the evidence of PW3 (Exh. 157).

XVI. About 14:30 to 15:00 hours: PW38 went to the house of PW40, and informed her about the abduction. They had decided on waiting till 17:00 hrs before lodging a complaint and to lodge a complaint of Anil Bheda only. This is apparent from the evidence of PW38.

XVII. About 15:00 hours: PW1 spoke to PW38 at about 15:00 hours. Thereafter, PW1 spoke to PW40, made enquiries and took the address of Aruna Bheda's house as well as the address of the shop of PW38. This has come as per the oral evidence of PW1 and PW2. The CDR of PW1(Exh. 652), makes it apparent that at around 15:01;63, a call was made by PW1 from XXXXXX0012 to PW38 from XXXXXX9531.

XVIII. Between 15:00 - 16:00: PW1 and PW2 called some police officials, gave them information of abduction and requested them to make inquiries about the same and revert back,

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but did not get any information. This has come as per the oral evidence of PW1 and PW2. (There are call detail records to support the same)

XIX. About 16:08: PW1 & PW2 sent Telegrams to C.P. Mumbai, Navi Mumbai and Thane from Matunga Telegraph Office. This has been made apparent from the Original Booking Form of Telegram to CP, Thane (Exh. 114), Original Booking Form of Telegram to CP, Navi Mumbai(Exh. 115), Original Booking Form of Telegram to CP, Mumbai(Exh. 116), and from the receipts (Exh. 119). (The location of PW1 and PW2 is at these places,

XX. About 16:44: PW1 and PW2 sent faxes to C.P. Navi Mumbai and Thane. Original Handwritten Fax Message(Exh.

120) makes the same apparent.

XXI. About 17:45: PW1 was told by someone on phone that the deceased and Anil Bheda were taken away by API Prakash Bhandari of Belapur Crime Branch. This has come as per the oral evidence of PW1. (same is corroborated by their CDR).

XXII. About 18:28: PW1 and PW2 sent Telegrams to C.M. and Dy.C.M, Maharashtra State from Dadar Telegraph Office, apparently as per oral evidence of PW1 and PW2. Original Booking Form of Telegram to CP, Navi Mumbai (Exh. 117),

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Original Booking Form of Telegram to CP, Mumbai (Exh. 118), and Receipts make it apparent that the aforesaid telegrams were sent by PW1 and PW2 to C.M. and Dy. C.M. Maharashtra State from Dadar Telegraph office. (The locations evident from CDRs of PW1 and PW2 support the same.)

XXIII. About 18:40: PW40, Aruna Bheda lodged a missing Complaint No. 51 at Vashi P.S.

(i) Statement of Aruna Bheda regarding missing complaint of Anil Bheda at Vashi P.S. (Exh. 306) makes it evident that PW40 had lodged a missing complaint report at about 18:40 at the Vashi P.S.

(ii) The same is shown in the Missing Complaint Register No. 51/06.

XXIV. About 20:00: PW1 and PW2 reached Belapur Crime Branch office to make inquiry about the deceased and Anil Bheda but did not get any information.

(i) CDR of PW1 (Exh. - 560) Loop Cell ID locations (Exh.

564) would show that PW1 at around 20:27 was at Prabhat Centre Annex, Sector Al, Plot No 7, CBD, Navi Mumbai- 400614.This is apparent from the call made by PW1 from XXXXXX6490 to 9869109878.

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XXV. Between 20:10 and 20:13: Alleged encounter

took place at Nana Nani Park, 7 Bunglows, Andheri (W), Mumbai as X the FIR/302/2006 and Claim of Encounter Team.

XXVI. About 20:30: PW3 informed PW1 that there is breaking news on all news channels that Ramnarayan was shot dead in an encounter. At that time PW1 and PW2 were at Belapur C.B.D.

(i) CDR of PW3 (used by PW1) (Exh. - 579) Airtel Cell ID locations (Exh. 571) would show that PW1(who was using the mobile phone of PW3) at around 20:33 was near Plot no. 53, Parsik Hill, C.B.D., Navi Mumbai.This is apparent from the call made by PW1 (using the mobile of PW3 to PW1.

XXVII. About 22:15: PW1 and PW2 had reached Versova PS along with Adv. Vijay Desai, Adv. Kudrat Shaikh and driver Raja.

(i) CDR of PW1 (Exh. - 560) Loop Cell ID locations (Exh.

548) would show that PW1 at 22:20 was near Juhu Galli Junction, Vile Parle(W), Mumbai. This is apparent from the call made by PW1 to XXXXXX2586.

XXVIII. About 22:30: PW1 and PW2 along with Adv. Vijay Desai, Adv. Kudrat Shaikh and driver Raja reached Nana Nani

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Park. The same is made apparent by the oral evidence of PW2 (Exh. 148).

(i) CDR of PW3 (used by PW1) (Exh. - 579) Airtel Cell ID locations (Exh. 572) would show that PW1(who was using the mobile phone of PW3) at around 22:33 was present around Juhu, Versova Link Road, Andheri (W), Mumbai.This is apparent from the call made by PW1(using the mobile of PW3) to XXXXXX8837.

(ii) CDR of PW2 (Exh. - 401) Vodafone Cell ID locations (Exh. 406) would show that PW2 at 22:40 was present near J.P. Road, Near Garden 7 Bungalows, Andheri West, Mumbai.This is apparent from the call made by PW2 to XXXXXX9150.

XXIX. About 22:44: PW1 took a video recording of the spot with a Mobile Camera. This Video Clipping shows that one newspaper was kept at one place and one stone was kept on the newspaper. It also shows electric pole numbers.

(i) CDR of PW3 (used by PW1) (Exh.-579) Airtel Cell ID locations (Exh. 571) would show that PW1 at 22:49 was present around Navbharat Nagar, 7-Bunglow, Andheri, Mumbai. This is apparent from the call made by Girish Nepali (PW57) to PW1.

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XXX. About 13:19: Al had called PW104 (A.T. Patil)

to come to D.N. Nagar Police Station to convince/talk to Anil Bheda however, PW104 had turned hostile.

(i) CDR of PW104 (Exh. - 403) Loop Cell ID locations (Exh.

548) would show that PW104 at 13:19 was present around Esic Nagar, YMCA Area, The Club Area, Mumbai. This is evident from the call made by OA1 to PW104 on his number XXXXXX3281.

XXXI. At 15:16: PW104 reached D.N. Nagar Police Station.

(i) CDR of PW104 (Exh. - 403) Vodafone Cell ID locations (Exh.

421) would show that PW104 at 15:16 was present around D.N. Nagar, Andheri (W), Mumbai. This is evident from the call made by PW104 from XXXXXX3281 to a local number XXXXXX0151.

XXXII. About 16:49: Anil Bheda was taken to Vashi Police Station to withdraw the missing complaint lodged by A/2 and A/3.

(i) CDR of A2 (Exh. - 523) Loop Cell ID locations (Exh. 548) would show that A2 at 16:49 was found to be around Big Splash, Vashi, Sector 17, Mumbai. This is evident from the call made by A2 from XXXXXX1323 to A4 on his number.

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XXXIII. Between 22.05 and 22:51: Anil Bheda, Aruna Bheda

(PW40) and their son, Parth were taken to Bhatwadi by A2 and A3.

(i) CDR of A2 (Exh. - 523) Loop Cell ID location (Exh. 539) would show that A2 at 22:05 was present around Tilak Nagar Railway Quarters, Tilaknagar, Mumbai. This is evident from the call made by A2 from XXXXXX1323 to A4 on his number.

(ii) CDR of A2 (Exh. - 523) Loop Cell ID location (Exh. 539) would show that A2 at 22:51 was found near Alpana Apts., Ghatkopar, L.B.S. Marg, Barve Nagar, Mumbai. This is evident from the call made by A2 from XXXXXX1323 to XXXXXX3337.

322 Thus, the CDR of the accused clearly corroborates

the circumstances on record and the prosecution case, that the

accused were at the place, before and when the abduction took

place i.e. of Ramnaryan and Anil Bheda, and from where they

were brought to D.N. Nagar Police Station via Bhandup. Some of

the appellants/accused i.e. police personnel who were present

from before i.e. on 10th November 2006, were A7, A2 and A3

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alongwith others and on 11th November 2006, A7 alongwith

others, abducted Ramnarayan and Anil Bheda and A2 and A3

joined the abductors at Bhandup. All three were outside their

Commissionerate areas i.e. they were in Navi Mumbai on 10 th

November 2006 and A7 on 11th November 2006 and have

offered no explanation for the same. There are exchange of

several calls interse between the accused. As far as A2 and A3 are

concerned, their location of 10th November 2006 at the time of

recce was Vashi, Navi Mumbai and on the day of abduction, they

were at Bhandup. The mobile numbers of A2 and A3 are

registered in their own names. The said accused have not offered

any explanation as to why they were outside their

Commissionerate area under Section 313. It is pertinent to note

that Ramnarayan was staying with Anil Bheda, as is evident from

the evidence of PW1. The same has been admitted to, by PW 1 in

his cross-examination. As far as A7 is concerned, the mobile used

by him was registered in his brother's name-Avinash Shinde.

Although, A7 disputed using the said mobile, Exh. 688 clinches

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the prosecution case that A7 was using the said mobile. The

prosecution in support of its case, has examined PW90-Sanjay

Apage to prove that A7 was using mobile No. XXXXXX0551.

323 PW90-Sanjay Apage was examined by the prosecution

to prove the entry i.e. Exh. 687A and 688A. PW 90 who was

attached to Versova Police Station at the relevant time as a Police

Constable. He has stated that in October 2006, he was working as

a Section Karkun and that he was the only Section Karkun; that

his work as a Section Karkun was to update personal information

of the Ammaldars and that the said information is updated in a

book kept in the police station; and that the said information is

entered in the book on the basis of the information given by the

Ammaldar concerned when he resumes duty in the police station.

323.1 When PW90 was confronted with the book of the

Versova Police Station, he has identified the first entry as being in

his handwriting, except the figure 69703 (Nothing turns on this

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number). He has stated that as per the said entry, A2 joined duty

on 18th October 2006; that he was transferred from Local Arms-I

to Crime Branch and then to Versova Police Station; that his

transfer was as per Police Circular dated 24 th August 2006; that

his PC number was 31241; that A2's address was A/Block No. 77,

Worli Police Camp, Sir Pochkhanwala Marg, Mumbai-25 and his

mobile number was XXXXXX1323. PW90 has stated that the

said information was given by A2 and that the contents written

by him in the book were true and correct. Accordingly, entry was

marked as Exh. 687 and the xerox true copy of the said entry was

marked as Exh. 687A.

323.2 PW90 has further deposed that another entry on the

same page is with respect to A7, a resident of Flat No.2, Gold

Sumit Housing Society, Kalwa Naka, Kalwa. Thane and his

Mobile No. was XXXXXX0551 i.e. as disclosed by A7. PW90

has further deposed that there is another entry on the same page

with respect to A7 i.e. A7 joining duty at Versova Police Station

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on 18th October 2006; that he was transferred from LA, III

Narcotics Crime Branch to Versova Police Station; that his

transfer was as per police Circular dated 24 th August 2006. He

has stated that the total entry is in his handwriting, except the

words, "Transfer Andheri Police Station". He has further stated

that he made the entry correctly as per the say of A7. The said

entry is marked as Exh. 688 and the xerox true copy of the said

entry was taken on record and marked as Exh. 688A. The said

witness has identified both A2 and A7.

324 Nothing material has been brought in the cross-

examination of the said witness, so as to disbelieve his testimony

with respect to the entries made by him. The said Exhibits 687-A

and 688-A show that the said witness i.e. PW90 has recorded in

his writing the designation of the police, their names, address,

their date of birth, the date of joining service, their caste, their

education, date of reporting and the village address, from where

they were transferred, as per the say of A2 and A7. Except for

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the entries made with respect to mobile numbers, there is no cross

on the other columns i.e. other details, which were authored by

PW90. It appears that the said entries have been made by PW90

in the usual course of his official duty and there is no reason to

disbelieve his testimony. Thus, the evidence of PW90 clearly

discloses that A2 was using mobile No. XXXXXX1323 and A7

was using mobile No. XXXXXX0551. It is pertinent to note that

A7 has not brought anything on record that he was using any

other number. Not even a suggestion.

325 Much ado has been made about discrepancy in the

Sectors i.e. Sector 9 and Sector 9A, however, having perused the

evidence, we do not find any merit in the said submission,

inasmuch as, Sector 9 and Sector 9A are adjacent to each other, as

is evident from the evidence of PW38. It may be noted that

PW38 has admitted in his cross-examination, that the distance

between his shop and the road was about 10 feet and that he had

seen Nilesh standing outside the shop, on the road.

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326 Thus, from a bare perusal of the aforesaid evidence

that has come on record, we may note that the locations as

established by the CDRs of the Appellants/ Accused conclusively

points to the complicity of the accused persons vis-à-vis abduction

of Anil Bheda and Ramnarayan on 11 th November 2006 and

murder/custodial death of Ramnarayan, on the same day.

327 The inter se communication between the

appellants/accused, as established by the CDR evidence that has

come on record, points to criminal conspiracy to eliminate

Ramnarayan. We now proceed to deal with the next circumstance

relied upon by the prosecution, which is criminal conspiracy.

viii. CRIMINAL CONSPIRACY

328 Learned counsel for the appellants/accused submitted

that the prosecution has failed to prove criminal conspiracy i.e.

there was a conspiracy between all the accused to eliminate

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Ramnarayan and that in achieving the same, they abducted

Ramnarayan and Anil Bheda and confined Anil Bheda, so that he

would not spill the beans.

329 Whereas, Mr. Chavan, learned Spl.P.P and Dr.

Chaudhry submitted that conspiracy can clearly be inferred from

the circumstances on record, as direct evidence is seldom

available. It is submitted that the circumstances adduced by the

prosecution will clearly reveal the existence of a criminal

conspiracy.

330 The law with regard to how 'criminal conspiracy' is

to be proved, is well settled.

331 The Apex Court in State of Kerala v. P. Sugathan and

Ors.22, has in paras 12 and 13 observed as under :

"12. We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and

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its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 :

1980 SCC (Cri) 561] held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.

13. In Kehar Singh v. State (Delhi Admn.) [(1988) 3 SCC 609 : 1988 SCC (Cri) 711 : AIR 1988 SC 1883] it was noticed that Sections 120-A and 120-B IPC have brought the

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law of conspiracy in India in line with English law by making an overt act inessential when the conspiracy is to commit any punishable offence. The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B of the Penal Code, 1860."

332 Similarly, in Yogesh v. State of Maharashtra23, the

Apex Court in para 25 has summarized the core principles of law

of conspiracy in the following words :

25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding

23 AIR 2008 SC 2991

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circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement."

333 More recently, in State (NCT of Delhi) v. Navjot

Sandhu24, the Apex Court after making an exhaustive reference to

several decisions on the point, including State v. Nalini-(1999) 5

SCC 253 , observed in para 97, as under:

"97. Mostly, conspiracies are proved by circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused (per Wadhwa, J. in Nalini case [(1999) 5 SCC 253 :

1999 SCC (Cri) 691] at p. 516). The well-known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible" (Tanviben Pankajkumar case [Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156 : 1997 SCC (Cri) 1004] , SCC p. 185, para 45). G.N. Ray, J. in Tanviben Pankajkumar [Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7

24 (2005) 11 SCC 600

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SCC 156 : 1997 SCC (Cri) 1004] observed that this Court should not allow suspicion to take the place of legal proof."

334 Conspiracies are always shrouded in secrecy and as

such would have to be inferred from the circumstances on record,

inasmuch as, direct evidence, is seldom available. It is not

necessary to prove conspiracy by express agreement. The law

with respect to criminal conspiracy is well settled. The conduct

of the accused, there participation at different stages, to achieve

the ultimate object, is relevant. The most important ingredient of

the offence of criminal conspiracy is the agreement between

two/more persons to do an illegal act i.e. they have come together

to pursue the illegal/unlawful act. The meeting of minds, in the

facts, can clearly be inferred from the acts of the

appellants/accused to achieve their ultimate goal, which was to

kill Ramnarayan. In the facts, physical manifestation of

agreement has been established. A conspiracy is a continuing

offence, which continues to subsist till it is executed, rescinded or

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frustrated, by choice of necessity. In the present case, the

conspiracy continued till it was finally executed.

335 The circumstances in the present case, when taken

together on their face value, would clearly indicate meeting of

minds between the conspirator for the intended object of

committing an illegal act. It is clearly evident from the evidence

on record that all means adopted and illegal acts done by the

appellants/accused were clearly done in furtherance of the object

of the conspiracy hatched, which is to kill Ramnarayan and the

same is evident from the time when police personnel were

deputed to D.N. Nagar, after which, a watch was kept on

Ramnarayan on his movements from 10 th November 2006 till

11th November 2006 when Ramnarayan and witness Anil Bheda

were abducted after which Ramnarayan was killed in a fake

encounter. Thereafter, witness Anil Bheda was detained for about

one month by the appellants/accused, so as to prevent him from

spilling the beans, he being the prime witness to the abduction.

S.Q. Pathan / N.S. Chitnis 677/867

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Formation of a squad under OA1, albeit being illegal and coming

together of police personnel, some from different police stations,

to work under OA1 squad, is also one of the factors which will

have to be borne in mind to show the intent/conspiracy hatched

by the appellants/accused. All the circumstances adduced by the

prosecution clearly show that there was an agreement between

the parties for doing an illegal act, and that each played a part in

achieving that illegal object.

336 From the circumstances as adduced by the

prosecution on record, it is clearly evident that the goal/object of

all the appellants/accused was that of 'elimination of Ramnarayan'

and to achieve this goal/object, a squad was formed under OA1,

that all accused participated in one way or the other, either by

providing logistics, keeping a watch on the movements of

Ramnarayan, in his abduction and then in killing him, and by

showing the killing as an encounter and then by confining Anil

Bheda, for almost a month, so that he does not spill the beans.

S.Q. Pathan / N.S. Chitnis 678/867

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Anil Bheda, was a prime witness to his and Ramnarayan's

abduction. Anil Bheda had in the TIP identified the persons who

had abducted him and Ramnarayan. Anil Bheda's 161 and 164

statements had also been recorded and so was a running

panchnama done as disclosed by him from where he and

Ramnarayan were abducted i.e. from Vashi to Bhandup to D.N.

Nagar Police Station to the places where he was confined. It is

pertinent to note, that few days prior to his deposition Anil Bheda

was abducted and killed i.e. his burnt body was identified only on

the basis of DNA. All the evidence adduced by the prosecution

would clearly reveal that the ultimate goal was to kill

Ramnarayan. The CDR also supports the evidence adduced by

the prosecution, as dealt in detail, by us herein-above. The

circumstances on record, when taken together on their face value,

clearly indicates the meeting of minds between the conspirators

for the intended object of committing an illegal act. The

inferences can be deduced from the acts of the parties, done in

pursuance of the purpose in common between the conspirators.

S.Q. Pathan / N.S. Chitnis 679/867

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The prosecution has successfully proved all the circumstances

relied upon by them by cogent and legal evidence, and beyond

reasonable doubt. Thus, the prosecution from all the aforesaid

circumstances, has duly proved that the appellants had entered

into a criminal conspiracy, and the same can clearly be inferred

from the overwhelming evidence/circumstances led by the

prosecution.

D. Lacunae in 313

337 All the learned counsel for the appellants/accused

submitted that the evidence pertaining to CDRs, SDRs and tower

locations has not been specifically put to any of the accused

persons, thereby, offering no opportunity to explain the

incriminating circumstances revealed from the CDRs, SDRs and

tower locations. They further submitted that only a general

question has been put with respect to the Nodal Officers, to the

accused persons and the same does not offer any opportunity to

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them to provide a proper explanation, which amounts to a

serious irregularity, and thus, the same would have to be excluded

from consideration.

338 Learned counsel for all the appellants/accused

vehemently submitted that serious prejudice has been caused to

the appellants/accused, inasmuch as, a common and composite

question with respect to CDRs was asked, resulting in serious

prejudice to the appellants. It is submitted that thus, the

circumstance of 'CDR' relied upon by the prosecution cannot be

considered and as such would have to be excluded from

consideration.

339 Per Contra, Mr. Chavan, learned Spl.PP submitted

that the appellants/accused have failed to show that on account of

the said composite question on CDRs, failure of justice had

occasioned. He submitted that no objection/submission was

advanced by the appellants' counsel in the trial Court with respect

S.Q. Pathan / N.S. Chitnis 681/867

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to the same. According to Mr. Chavan, though this Court had

asked the learned counsel for the appellants and Mr. Dilip

Palande, who appeared in-person, during the course of their

arguments, that the said lacunae, if any, could be rectified at the

appellate stage, all the learned counsel for the appellants and

Mr. Dilip Palande (A15) in unison refused the same, saying that if

the exercise is done at this stage, serious prejudice would be

caused to them. He submitted that in view of the said stand, the

appellants/accused now cannot cry that 'prejudice' has been

caused to them, because of a composite question on CDRs.

340 Before we proceed to decide the said objection of the

appellants with respect to alleged prejudice being caused to them

because of the composite Questioning on 'CDRs', it would be

apposite to consider the law on Section 313.

341 The Apex Court in Raj Kumar @ Suman v. State

(NCT of Delhi) 24 has underlined the prevailing law concerning

Section 313 of the Cr.PC, specifically in para 17, as herein-under:

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"17. The law consistently laid down by this Court can be summarized as under:

(i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction;

(ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence;

(iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused;

(iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused;

(v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect.

However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident;

(vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and

(vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused

S.Q. Pathan / N.S. Chitnis 683/867

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under Section 313 of CrPC.

(viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered."

342 The Apex Court in its landmark ruling in the case of

Shivaji Sahabrao Bobade v. State of Maharashtra 25, has in

paragraph 16, held as under:

"16.... It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would 25 (1973) 2 SCC 793

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not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, CrPC, the omission has not been shown to have caused prejudice to the accused......"

343 Similarly, in Gian Chand and Ors. v. State of

Haryana26, the Apex Court held that non-compliance of the

provisions of Section 313 Cr.PC was taken for the first time

before the Supreme Court. However, considering there was no

material shown by the accused persons as to what prejudice has

been caused to the accused persons, the court held that the trial

was not vitiated for non-compliance of the provisions of Section

313 of Cr.PC

344 Infact, a three-Judge Bench of the Apex Court in

Wasim Khan v. State Of Uttar Pradesh 27 and Bhoor Singh v. State

of Punjab28 held that every error or omission in compliance with

26 AIR 2013 SC 3395 27 AIR 1956 SC 400 28 AIR 1974 SC 1256

S.Q. Pathan / N.S. Chitnis 685/867

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the provisions of section 342 of the old Cr.PC does not

necessarily vitiate trial. The accused must show that some

prejudice has been caused or was likely to have been caused to

him.

345 In Paramjeet Singh v. State of Uttarakhand 29, after

considering several cases on the issue, the Apex Court in para

30, held as under:

"30. Thus, it is evident from the above that the provisions of Section 313 CrPC make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court."

29 AIR 2011 SC 200

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346 Infact, in State of Punjab v. Naib Din 30, in particular,

in paras 11 and 12, the Apex Court has observed as under:

"11. Added to the above, learned Single Judge observed that the contents of the said affidavit were not put to the accused during the examination under Section 313 of the Code. Learned Single Judge, on that score also, overlooked the formal nature of the evidence. The substantive evidence relating to the sample is the result of the chemical examination. There is no grievance for the accused that the trial court did not put that aspect to the accused when he was questioned under Section 313 of the Code. If so it was too pedantic an insistence that every item of evidence, even of a formal nature, should also form part of the questions under Section 313 of the Code.

12. That apart, the respondent failed to show that there was any failure of justice on account of the omission to put a question concerning such formal evidence when he was examined under Section 313 of the Code. No objection was raised in the trial court on the ground of such omission. No ground was taken up in the appellate court on such ground. If any appellate court or revisional court comes across that the trial court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particular item of evidence aside, if the remaining evidence

30 (2001) SCC OnLine SC 1163

S.Q. Pathan / N.S. Chitnis 687/867

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is sufficient to bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the appellate or revisional court can endeavour to see whether it could be rectified."

(emphasis supplied)

347 Thus, the judgments of the Apex Court would show

an omission under Section 313 does not necessarily vitiate the

trial, unless the accused is successful in showing that the omission

has resulted in serious prejudice, resulting in failure of justice.

348 At the outset, we may note that learned counsel

appearing for all the appellants, during the course of their

submissions alleged that serious prejudice has been caused

because of the composite Questioning on CDRs, in particular,

Question No.318, and hence, we asked the learned counsel for

the appellants to tell us, as to which Questions had caused

prejudice to the appellants, so that the said questions could be put

to the appellants separately under Section 313, even at the

appellate stage. None could tell us how prejudice had

S.Q. Pathan / N.S. Chitnis 688/867

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occasioned. Learned Spl.PP as well as Dr. Chaudhry had no

objection for this Court to put questions to the

appellants/accused, which according to the accused, had caused

prejudice to them. However, all the counsel for the appellants as

well as Mr. Palande, appearing in-person refused the said offer,

stating that if Questions were put to them under Section 313 now,

at this stage, their case would stand seriously prejudiced. Thus,

despite giving an opportunity to all the appellants to show how

failure of justice had occasioned, due to the composite

questioning and despite giving them an opportunity of putting

questions to them, all the appellants/accused failed to take up the

said offer. Thus, in this light of the matter, the appellants now

cannot cry prejudice, much less, serious prejudice to them,

resulting in failure of justice.

349 We may also note, that not a single appellant raised

the ground of prejudice under Section 313 or even argued the

same, before the trial Court, and as such, there was no occasion

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for the trial Court to consider the same. Even at the appellate

stage, only A2, A4 and A7 have in their Appeal Memos raised the

ground of prejudice under Section 313, rest of the

appellants/accused argued the said ground, for the first time

during the course of their arguments, when the aforesaid appeals

were heard in 2023, after 13 years. Infact, we asked both, the

prosecution as well as the defence counsel to suggest the

Questions, however, learned counsel for the appellants including

Mr. Palande refused the suggestion and hence Questions were not

prepared. Thus, an opportunity was given to all the accused, to

show what was the prejudice caused, so that the questions could

be asked to them, at the appellate stage, however, they refused.

350 Having regard to the law with respect to 313, no

ground is made out by the appellants/accused to entertain their

submission that prejudice has been caused to them, with respect

to the composite questions on CDRs.

S.Q. Pathan / N.S. Chitnis 690/867

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E. Sanction under Section 197 Cr.PC - Whether necessary ?

351 Some of the appellants/accused i.e. A3, A7, A9, A15

and A16 urged that since it was a genuine encounter, it was

incumbent for the prosecution to obtain sanction under Section

197 Cr.PC, since the acts were done in course of the discharge of

their official duty.

352 Whereas, according to Mr. Chavan, learned Spl. PP,

the question of seeking sanction under Section 197 did not arise,

since the encounter was not a genuine one, but was a fake

encounter. He submitted that the law as to when sanction is

required, is well settled and that it covers only acts done in the

course of one's official duty. According to Mr. Chavan, a fake

encounter i.e. a murder, abduction, wrongful confinement, can

never be said to be an act done in the course of one's duty,

warranting sanction under Section 197 Cr.PC.

S.Q. Pathan / N.S. Chitnis 691/867

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353 The law with respect to when sanction under Section

197 of the Cr.PC is necessary, is no longer res integra. The Apex

Court in the case of Devinder Singh and Ors. v. The State of

Punjab through CBI31, (it was a case pertaining to a fake

encounter) summarized the principles emerging from various

decisions, in para 39 of its judgment, as under:

"39. The principles emerging from the aforesaid decisions are summarised hereunder:

"39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.

39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 31 (2016) 12 SCC 87

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CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.

39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.

39.5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.

39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed.

39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.

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39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits.

39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial."

354 It is pertinent to note that the scope of protection

granted under Section 197 of the Cr.PC was dealt with in P. K.

Pradhan v. State of Sikkim32. The Apex Court whilst considering

the said question, held in paras 14 and 15 as under:

" 14. In the case of K. Satwant Singh v. State of Punjab [AIR 1960 SC 266 : 1960 Cri LJ 410 : (1960) 2 SCR 89] a Constitution Bench of this Court observed that some offences cannot by their very nature be regarded as 32 (2001) 6 SCC 704

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having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of bribe, an offence punishable under Section 161 of the Penal Code, 1860 is one of them and offence of cheating and abetment thereof is another. Likewise, another Constitution Bench in the case of Om Parkash Gupta v. State of U.P. [AIR 1957 SC 458 :

1957 SCR 423 : 1957 Cri LJ 575] observed that a public servant committing criminal breach of trust does not normally act in his public capacity, as such no sanction is required for such an act.

"15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where

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it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial."

355 In Omprakash and Ors. v. State of Jharkhand and

Anr.33, the Supreme Court after referring to certain decisions

pertaining to Police excesses, explained the scope of protection

under Section 197 of the Cr.PC in paras 32, 34 and 42 as under:

"32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh [AIR 1960 SC 266 : 1960 Cri LJ 410 :

(1960) 2 SCR 89] ). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is 33 (2012) 12 SCC 72

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reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew [(2004) 8 SCC 40 : 2004 SCC (Cri) 2104] ). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood.

....

"34. In Matajog Dobey [AIR 1956 SC 44 : 1956 Cri LJ 140 : (1955) 2 SCR 925] the Constitution Bench of this Court was considering what is the scope and meaning of a somewhat similar expression "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" occurring in Section 197 of the Criminal Procedure Code (5 of 1898). The Constitution Bench observed that no question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. On the question as to which act falls within the ambit of above quoted expression, the Constitution Bench concluded that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a

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pretended or fanciful claim that he did it in the course of performance of his duty. While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lodged and on the allegations contained therein, the Constitution Bench referred to Hori Ram Singh [AIR 1939 FC 43 : (1939) 1 FCR 159] and observed that at first sight, it seems as though there is some support for this view in Hori Ram Singh [AIR 1939 FC 43 : (1939) 1 FCR 159] because Sulaiman, J. has observed in the said judgment that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution and Varadachariar, J. has also stated that: (Matajog Dobey case [AIR 1956 SC 44 : 1956 Cri LJ 140 : (1955) 2 SCR 925] , AIR p. 49, para 20)

""20. ... the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings."

It is pertinent to note that the Constitution Bench has further observed that a careful perusal of the later parts of the judgment however show that the learned Judges did not intend to lay down any such proposition. The Constitution Bench quoted the said later parts of the judgment as under: (Matajog Dobey case [AIR 1956 SC 44 : 1956 Cri LJ 140 : (1955) 2 SCR 925] , AIR pp. 49-50, para 20)

"20. ... Sulaiman, J. refers to the prosecution case as disclosed by the complaint or the 'police report' and he winds up the discussion in these words:

(Hori Ram Singh case [AIR 1939 FC 43 : (1939) 1 FCR 159] , AIR p. 52 : FCR p. 179)

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'... Of course, if the case as put forward fails, or the defence establishes that the act purported to be done [is] in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground.' The other learned Judge also states: (Hori Ram Singh case [AIR 1939 FC 43 : (1939) 1 FCR 159] , AIR p. 55 : FCR p. 185)

'... At this stage, we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him in the execution of his duty.'

It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.

Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."

The legal position is thus settled by the Constitution Bench in the above paragraph. Whether sanction is necessary or not may have to

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be determined from stage to stage. If, at the outset, the defence establishes that the act purported to be done is in execution of official duty, the complaint will have to be dismissed on that ground.

"42. It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State- sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. The requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. The plea regarding sanction can be raised at the inception."

S.Q. Pathan / N.S. Chitnis 700/867

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356 In D. Devaraja v. Owais Sabeer Hussain 34, the

Supreme Court has observed in para 70 as under:

"70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law."

357 Similarly, Satyavir Singh Rathi, Assistant

Commissioner of Police & Ors v. State through CBI 35, was a case

pertaining to a fake encounter where the deceased was mistakenly

identified as a hardcore criminal and was shot down without any

provocation. The version of the police was that the police had

been attacked first, pursuant to which, they had retaliated, was

found to be false. It is in this circumstance, where the Apex

Court held that it could not, by any stretch of imagination, be

claimed by anybody that a case of murder would come within the

34 (2020) 7 SCC 695 35 (2011) 6 SCC 1

S.Q. Pathan / N.S. Chitnis 701/867

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expression "colour of duty". Accordingly, the Apex Court

dismissed the appeals of the concerned policemen against

conviction under Section 302, which was duly confirmed by the

High Court.

358 Similarly, in Virupaxappa Veerappa Kadampur v. State

of Mysore36, the Apex Court in para 9 has observed as under:

"9. The expression "under colour of something" or "under colour of duty", or "under colour of office", is not infrequently used in law as well as in common parlance. Thus in common parlance when a person is entrusted with the duty of collecting funds for, say, some charity and he uses that opportunity to get money for himself, we say of him that he is collecting money for himself under colour of making collections for a charity. Whether or not when the act bears the true colour of the office or duty or right, the act may be said to be done under colour of that right, office or duty, it is clear that when the colour is assumed as a cover or a cloak for something which cannot properly be done in performance of the duty or in exercise of the right or office, the act is said to be done under colour of the office or duty or right. It is reasonable to think that the legislature used the words "under colour" in Section 161(1) to include this sense. It is helpful to remember in this connection that the words "colour of office" has been stated in many law lexicons to have the meaning just

36 AIR 1963 SC 849

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indicated above. Thus in Wharton's Law Lexicon, 14th Edn., we find at p. 214 the following:

"Colour of office"

"When an act is unjustly dons by the countenance of an office, being grounded upon corruption, to which the office is as a shadow and colour."

In Stroud's Judicial Dictionary, 3rd Edn., we find the following at p. 521.

Colour:"'Colour of office' is always taken in the worst part, and signifies an act evil done by the countenance of an office, and it bears a dissembling face of the right of the office, whereas the office is but a veil to the falsehood, and the thing is grounded upon vice, and the Office is as a shadow to it. But 'by reason of the office' and 'by virtue of the office' are taken always in the best part."

359 What can be culled out from the aforesaid decisions is

that protection is afforded to honest and sincere officers, who

perform their duty honestly and to the best of their ability, to

further public duty. Protection is also afforded to public servants,

even if, they exceed their duty provided there is a reasonable

connection between the act and the official duty and that merely

because a public servant exceeded in his duty, would not be a

ground to deprive him of the said protection under Section 197.

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Thus, only when the the offence committed by a public servant is

directly and reasonably connected with the official duty, sanction

is warranted. The protection, however, is not afforded where the

crime is committed by the authority and camouflaged as an act

committed in the course of an official duty. Protection cannot be

sought under Section 197, when the act is not concerned / related

to the official duty and is pretended to be done under the 'colour

of official duty'. It can be no part of an official duty of a public

servant to commit an offence.

360 Thus, from the aforesaid decisions, it would be

apparent, that it is the duty of the Court to see whether there is a

reasonable nexus between the incident and the acts committed by

the accused (police) in discharge of their official duty. If the

offence is directly and reasonably connected with the official duty,

sanction is necessary and if not a part of the official duty, sanction

is not warranted.

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361 Having recorded the findings as stated aforesaid, we

are clearly of the opinion, that the acts committed, by no stretch

of imagination, can be said to be acts committed by the police

appellants/accused in the course of their official duty, thus

warranting protection under Section 197 Cr.PC. It is no part of

official duty to commit an offence. The police officers who are

protectors of law, have grossly misused and abused their position

by abducting and killing Ramnarayan in a fake encounter and by

giving it a colour of a genuine encounter and also by abducting

Anil Bheda and in wrongfully confining him for almost a month.

362 Considering the findings recorded by us, the question

of seeking sanction before prosecuting the police

appellants/accused, would not arise and as such, the said

submission deserves to be rejected, outright. The facts as revealed

aforesaid, clearly show that the acts of the police

appellants/accused were clearly an act of murder, a cold blooded

murder and as such, by no stretch of imagination, can it be said

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to be an act committed in the course of their official duty,

warranting protection under Section 197 Cr.PC.

F. Absence of Motive - Whether fatal?

363 Learned counsel for the appellants/accused

vehemently submitted that the prosecution had miserably failed to

prove motive qua any of the appellants, as to why they would

want to kill Ramnarayan, much less, abduct Ramnarayan and Anil

Bheda, and confine Anil Bheda. They submitted that in the

absence of motive, the prosecution case, which is based on

circumstantial evidence, would fail and as such, the appellants be

acquitted of all the offences for which they have been convicted.

364 Per contra, Mr. Chavan, learned Spl. P.P vehemently

submitted that no doubt, prosecution has not been able to prove

motive, since the witnesses sought to be examined to prove the

same, turned hostile, however, that by itself, will not throw the

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prosecution case out of the window, more particularly, when the

prosecution has established and proved every other circumstance

by cogent, legal and admissible evidence. Mr. Chavan submitted

that in a case based on circumstantial evidence, failure to prove

motive, is not always fatal, provided all other circumstances are

proved by the prosecution, the chain of which is complete and

which unerringly points to the guilt of the accused and excludes

any hypothesis consistent with the innocence of the accused.

365 In order to consider, whether absence of motive is

fatal in a case of circumstantial evidence, it would be apposite to

consider the law relating to the same.

366 In Vivek Kalra v. State of Rajasthan36, in Para 6, the

Apex Court has clarified whether there is any need to establish

motive in cases of circumstantial evidence, where otherwise, the

case has been proved beyond reasonable doubt. The said para 6

reads thus:

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"6. We have considered the submissions of the learned counsel for the parties and we agree with the learned counsel for the appellant that from the evidence of PW 11 one could not hold that the appellant had committed the murder of the deceased to take revenge on his uncle (PW

11), who had not given him Rs 80,000 kept in the fixed deposit. We are, however, of the opinion that where prosecution relies on circumstantial evidence only, motive is a relevant fact and can be taken into consideration under Section 8 of the Evidence Act, 1872 but where the chain of other circumstances establishes beyond reasonable doubt that it is the accused and the accused alone who has committed the offence, and this is one such case, the Court cannot hold that in the absence of motive of the accused being established by the prosecution, the accused cannot be held guilty of the offence. In Ujjagar Singh v. State of Punjab [(2007) 13 SCC 90 : (2009) 1 SCC (Cri) 272] this Court observed: (SCC p. 99, para 17) "17. ... It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliché) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy."

(emphasis supplied)

367 Similarly, the Apex Court in Ganeshlal v. State of

Maharashtra37, in para 9 has observed as under :

37 (1992) 3 SCC 106

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"9. It is next contended that the parents, sister, maternal uncle and uncle's daughter, A-1, A-3 to A-6 having been acquitted the appellant cannot be convicted under Section 302 I.P.C. The question therefore, is whether it is the appellant alone who has committed the offence or parents, sister and two others also are participis criminis. It is true as contended for the appellant that the evidence on record is not sufficient to arrive at an immediate motive to commit the crime and the case depends on circumstantial evidence.

But in circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction. In Atley v. State of U.P. [AIR 1955 SC 807, 810 : 1955 Cri LJ 1653] , this Court held that where there is clear evidence that the person has committed the offence, it is immaterial where no motive for commission of the crime has been shown. Therefore, even in the case of circumstantial evidence, absence of motive which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances. Therefore, the evidence of PW 4 and PW 5 partly with regard to the motive may not be sufficient to bring home the strong immediate motive. But the evidence of PW 5, Vanmala, that on the fateful day, she went to her sister's house situated at a distance of 40 to 50 ft. from her house and that she

S.Q. Pathan / N.S. Chitnis 709/867

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extended invitation to Kanchana and Kanchana's mother-in- law to attend the "Teej" ceremony in her house was not disputed in the cross-examination. It was around 10 to 10.15 a.m. It is not necessary to dilate the conversation for refusal to attend the ceremony but suffice to state that the appellant was present at that time. When Vanmala came down from the first floor, she heard exchange of words and somebody being beaten. After extending invitation to some people when she returned home, her maid servant, PW 9, after some time came and told her that her sister died. From her evidence in this behalf, there is no contradiction, but there is an omission of hearing exchange of words and somebody being beaten, in her statement recorded under Section 161 CrPC. Giving allowance to omit this part of the evidence i.e. exchange of words and hearing the beating of somebody, the fact remains that at 10.30 a.m. Kanchana died. It is established from evidence of Vanmala, PW 5 that she saw her sister Kanchana alive at about 10 to 10.15 a.m. in the company of her husband, in-laws, sister-in-law in the house and within a few minutes thereafter she was reported dead while in the house solely occupied by the accused- appellant and his family members."

(emphasis supplied)

368 The Supreme Court in the case of Sanaullah Khan v.

State of Bihar38 has, in para 18, held as under :

"18.................Where other circumstances lead to the only hypothesis that the accused has committed the offence, the Court cannot acquit the accused of the offence merely

38 (2013) 3 SCC 52

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because the motive for committing the offence has not been established in the case."

369 In the case of Praful Sudhakar Parab v. State of

Maharashtra39, the Apex Court in paras 25 and 26, has held as

under:

"25. One of the submissions which has been raised by the learned Amicus Curiae is that the prosecution failed to prove any motive. It is contended that the evidence which was led including the recovery of bunch of keys from guardroom was with a view to point out that he wanted to commit theft of the cash lying in the office but no evidence was led by the prosecution to prove that how much cash was there in the pay office.

26. Motive for committing a crime is something which is hidden in the mind of the accused and it has been held by this Court that it is an impossible task for the prosecution to prove what precisely have impelled the murderer to kill a particular person. This Court in Ravinder Kumar v. State of Punjab [Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690 : 2001 SCC (Cri) 1384] , has laid down following in para 18: (SCC pp. 697-98) "18. ... It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the

39 (2016) 12 SCC 783

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cause for the murder. In this connection we deem it useful to refer to the observations of this Court in State of H.P. v. Jeet Singh [State of H.P. v. Jeet Singh, (1999) 4 SCC 370 : 1999 SCC (Cri) 539] : (SCC p.

380, para 33) '33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.'"

370 In Paramjeet Singh (supra), the Apex Court held that

if motive is proved, that would supply a link in the chain of

circumstantial evidence but the absence thereof cannot be a

ground to reject the prosecution case. Para 54 of the said

judgment reads thus:

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"54. So far as the issue of motive is concerned, the case is squarely covered by the judgment of this Court in Suresh Chandra Bahri [1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60] . Therefore, it does not require any further elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. (Vide State of Gujarat v. Anirudhsing [(1997) 6 SCC 514 :

1997 SCC (Cri) 946]."

371 In Suresh Chandra Bahri v. State of Bihar 40, the Apex

Court held in para 21 as under:

"21. At the very outset we may mention that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. ..."

40 1995 Supp (1) SCC 80

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372 Thus, what can be culled out from the aforesaid

judgments is, that failure to prove motive by itself, in a case of

circumstantial evidence will not throw out the prosecution case or

corrode the credibility of the prosecution case, more particularly,

when there are other circumstances brought on record, by the

prosecution, which are clinching and which would complete the

chain and connect the accused with the commission of the

offence, leaving absolutely no room for any reasonable

doubt/suspicion, even from the proved circumstances. Thus,

failure to prove motive is not always fatal. Sometimes, motive for

committing a crime is hidden in the mind of the accused and it

would well be an onerous task for the prosecution to precisely

prove, what impelled the murderer to kill a particular person.

However, in the present case, although the prosecution has failed

to prove motive, there is overwhelming evidence adduced by the

prosecution to prove the other circumstances on record by

leading cogent, legal and admissible evidence, which

circumstances clearly form a chain, pointing to the clear

S.Q. Pathan / N.S. Chitnis 714/867

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complicity of the accused, thereby, excluding any hypothesis

which is consistent with their innocence. Thus, we hold that in

the facts, failure of the prosecution to prove `motive' is far more

fatal to the prosecution, and failure to do so, can by no means

absolve the accused against whom the prosecution has

successfully proved all the other circumstances.

G. Section 106 shift of burden of proof - It's applicability

373 Mr. Chavan, learned Spl. PP submitted that once the

prosecution has proved abduction of Ramnarayan and Anil Bheda

on 11th November 2006 at around 12:30 hrs from Sector 9,

Vashi, by cogent, reliable and admissible evidence, i.e. oral and

documentary evidence, the onus would shift on the accused to

explain what happened to Ramnarayan and how Ramnarayan

reached Nana Nani Park. Mr. Chavan submitted that it is not the

case of accused that in the intervening period i.e. between

abduction and the death of Ramnarayan, Ramnarayan escaped

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from their custody and was thereafter found at Nana Nani Park,

pursuant to which the encounter took place. Mr. Chavan

submitted that the accused have miserably failed to discharge the

said burden cast on them under Section 106 of the Evidence Act.

374 Per Contra, learned counsel for the appellants/accused

submitted that the question of shifting of burden under Section

106 would arise, only if the prosecution had proved its case,

beyond all reasonable doubt, which it had not.

375 As noted herein-above, we have come to the

conclusion that the prosecution has conclusively proved by

cogent, reliable and admissible evidence, the abduction of

Ramnarayan and witness Anil Bheda on 11 th November 2006 at

around 12:30 hrs from Sector 9, Vashi and the custodial death of

Ramnarayan. Under these circumstances, the onus would lie on

the appellant-accused to explain what happened to Ramnarayan

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and how he reached Nana Nani Park on the very same day at

around 20:10 hrs. It is not the case of the appellants that post the

abduction and before Ramnarayan was shot at Nana Nani Park,

Ramnarayan escaped from the clutches/custody of the appellants

and was thereafter found at the Nana Nani Park, after which

Ramnarayan was shot in a genuine encounter and as narrated in

the FIR i.e. C.R. No. 302/2006, lodged by A9.

376 The Apex Court in Prithipal Singh & Ors. v. State of

Punjab & Anr.40, has observed that it is very difficult to get

evidence against the policemen responsible for custodial death

and therefore, when it comes to such matters, law requires for

adoption of a realistic approach rather than a narrow technical

approach considering that torture and custodial death have

always been condemend by the courts and the same stern view is

also consistent with that of the Constitution and the Protection of

Human Rights Act, 1993.' The same can also be reflected in the

recommendation of 113th Report of the Law Commission of India,

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where an amendment to the Evidence Act, 1872 was suggested in

order to provide that in case of custodial injuries, if there is evidence,

the court may presume that the injury was caused by the police having

the custody of that person during that period. And the onus to prove

contrary is on the police authorities.

377 In Gauri Shanker Sharma v. State Of U.P40, this

Court held in paras 15 and 17 as under :

"15. ... it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police station records which they do not find difficult to manipulate as in this case....."

17. ... The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authority to brutally assault them while in his custody. Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency. We, therefore, do not think we would be justified in reducing the punishment imposed by the trial court."

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378 Similarly, in Munshi Singh Gautam v. State of

M.P.40, the Apex Court held that peculiar type of cases must be

looked at from a prism different from that used for ordinary

criminal cases for the reason that in a case where the person is

alleged to have died in police custody, it is difficult to get any

kind of evidence. The Apex Court observed in paras 6 and 7 as

under:

"6. Rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues ....

7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice-delivery system suspect and vulnerable. In the ultimate analysis society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the courts as well,

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because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock- up because there would hardly be any evidence available to the prosecution to directly implicate them in the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilised society governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in "khaki" to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crop, the foundations of the criminal justice-delivery system would be shaken and civilisation itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day, for anyone to reckon with."

(emphasis supplied)

379 The Apex court has observed in Sucha Singh v. State

of Punjab41, in paras 15 and 19 to 21 as under:

41 (2001) 4 SCC 375

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"15. The abductors alone could tell the court as to what happened to the deceased after they were abducted.

When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased.

.........

19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.

20. We have seriously bestowed our consideration on the arguments addressed by the learned Senior Counsel. We only reiterate the legal principle adumbrated in State of W.B. v. Mir Mohd. Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] that when more persons than one have abducted the victim, who is later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 IPC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e., whether he left his associates en route

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or whether he dissuaded others from doing the extreme act etc. etc.

21. We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle is to be laid down that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others.We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle is to be laid down that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others."

380 In Chaman & Anr. v. State of Uttarakhand42, the

Apex Court observed that cases of abduction being a criminal

42 (2016) 12 SCC 76

S.Q. Pathan / N.S. Chitnis 722/867

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offence per se, carries a higher degree of culpability as compared

to last seen evidence. In paras 27 to 30, of the said judgment, it

is observed as under:

"27. Significantly, the proved abduction of the deceased from his house by the appellants is per se a criminal offence and carries with it a much higher degree of sinister culpability compared to any phenomenon of "last seen together", simpliciter. Further the deceased being in the custody of the appellants after his abduction on 12-6-1996, it was within their special knowledge as to how he had been dealt with by them thereafter before his dead body was found in a decomposed state in a nearby jungle. No explanation is forthcoming in any form in this regard from the appellants.

28. This Court in Mir Mohammad Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] in a somewhat similar fact situation, where the deceased was abducted by the accused persons and thereafter his mangled body was found, held that the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as if it admits of no process of intelligent reasoning. It was enunciated that the doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule qua the purport of presumption of fact as a rule in the law of evidence. It was observed thus: (SCC p. 392, para 33)

S.Q. Pathan / N.S. Chitnis 723/867

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"33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved.

Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case."

29. Adverting to the facts, this Court in Mir Mohammad Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] ruled that as the prosecution had succeeded in establishing that the deceased had been abducted by the accused, they alone knew what happened to him until he was with them and if he was found murdered in a short time, after the abduction, the permitted reasoning process would enable the Court to draw the presumption that the accused had murdered him. It was held that such inference can be disrupted, if the accused would tell the Court what else had happened to the deceased at least until he was in their custody. Referring to Section 106 of the Evidence Act, it was propounded that the said section was not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but would apply to cases where prosecution had succeeded in proving facts from which a

S.Q. Pathan / N.S. Chitnis 724/867

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reasonable inference could be drawn regarding the existence of certain other facts, unless the accused, by virtue of his special knowledge regarding such facts, succeed to offer any explanation, to drive the court to draw a different inference.

30. The following observations by this Court in the context of above legal provision in Shambhu Nath Mehra v. State of Ajmer [Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 : 1956 Cri LJ 794] were adverted to with approval:

(AIR p. 406, para 11) "11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.

The word "especially" stresses that it means facts that are pre-eminently or exceptionally within his knowledge." (Mir Mohammad Omar case [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 :

2000 SCC (Cri) 1516] , SCC p. 393, para 38).

381 The Apex Court in State of M.P. v. Shyamsunder

Trivedii & Ors.43, observed in para 17 of the said judgment, as

under :

43 (1995) 4 SCC 262

S.Q. Pathan / N.S. Chitnis 725/867

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"17. From our independent analysis of the materials on the record, we are satisfied that Respondents 1 and 3 to 5 were definitely present at the police station and were directly or indirectly involved in the torture of Nathu Banjara and his subsequent death while in the police custody as also in making attempts to screen the offence to enable the guilty to escape punishment. The trial court and the High Court, if we may say so with respect, exhibited a total lack of sensitivity and a "could not care less" attitude in appreciating the evidence on the record and thereby condoning the barbarous third degree methods which are still being used at some police stations, despite being illegal.

The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact- situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity.

S.Q. Pathan / N.S. Chitnis 726/867

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Police excesses and the maltreatment of

detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith in the judiciary itself, which will be a sad day."

382 Keeping in mind the aforesaid, we now advert to the

prosecution case, as spelt out herein-above and the evidence that

has come on record and discussed under each of the

circumstances. We find that the prosecution has proved

abduction of Ramnarayan and Anil Bheda, by the appellants-

accused by leading cogent, admissible and legal evidence.

383 The appellants have not whispered even a word with

respect to what happened to Ramnarayan (deceased), after his

abduction from Vashi. Ofcourse, it is the case of the some of the

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appellants/accused, that Ramnarayan was shot in a genuine

encounter. Infact, once the prosecution has successfully proved

abduction, the burden would shift on the accused under Section

106 of the Evidence Act, to show what happened to Ramnarayan.

This burden has not been discharged by the accused. Infact, we

may observe, that in the facts, the prosecution has been able to

successfully demolish the case of the accused that it was a

genuine encounter. The same is done by leading evidence, both

oral and documentary. The evidence on record clearly reveals

that A9 had lodged a false FIR i.e. C.R. No.302/2006, to cover

up a fake encounter, when infact Ramnarayan had died in police

custody. The prosecution having proved abduction, as well as

murder of Ramnarayan, it was incumbent on the appellants-

accused under Section 106 to offer some explanation. Thus, this

is an additional circumstance, in the chain of circumstances

already proved by the prosecution. It is well settled that Section

106 of the Evidence Act does not relieve the prosecution of its

initial burden to prove the guilt of the accused beyond reasonable

S.Q. Pathan / N.S. Chitnis 728/867

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doubt, which the prosecution, in this case, has done. However,

the accused have not been able to discharge the burden cast on

them i.e. what happened to Ramnarayan after his abduction i.e.

facts within the special knowledge of the accused or how

Ramnarayan died. The accused having failed to offer any

explanation, it is not possible for the Court to draw a different

inference.

H. Conclusion

384 It is well settled, how evidence is to be appreciated in

custodial death cases, since direct ocular evidence vis-a-vis the

complicity of the police personnel is rarely available. Although,

in the present case, direct evidence was available i.e. of Anil

Bheda's evidence, since he too was abducted with Ramnarayan,

however, Anil Bheda, was abducted and killed a few days before

his evidence could be recorded and hence, the prosecution has

relied on circumstantial evidence, as detailed herein-above.

S.Q. Pathan / N.S. Chitnis 729/867

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385 In Munshi Singh Gautam (supra), the Apex Court in a

custodial death case has in para 7 observed as under; "The Courts

must deal with such cases in a realistic manner and with sensitivity

which they deserve, otherwise the common man may gradually lose

faith in the efficacy of judiciary itself." It was also observed that

exaggerated adherence to and insistence upon the establishment of

proof beyond reasonable doubt by the prosecuting agencies are

themselves fixed in the dock, ignoring the ground realities, often

results in miscarriage of justice.

386 Similarly, the Apex Court in Prithipal Singh & Ors.

(supra) has observed that, it is generally difficult in cases of

deaths in police custody to secure evidence against the policemen

responsible for resorting to third degree methods, since they are

in charge of police station records, which they do not find

difficult to manipulate and hence law requires for adoption of a

realistic approach rather than a narrow technical approach in

cases of custodial crimes.

S.Q. Pathan / N.S. Chitnis 730/867

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387 We have perused the entire evidence, oral and

documentary, adduced by the prosecution, in support of its case

and find that the prosecution has proved each of the circumstance

relied upon by them, beyond reasonable doubt as against all the

police personnel and one another accused. The evidence led by

the prosecution, both oral and documentary is cogent, reliable

and legally admissible. We have whilst dealing with each of the

circumstances relied upon by the prosecution, under the

headings; Formation of Squad; Abduction; Encounter/Custodial

Death/Murder; Ballistic Evidence/Forensic Evidence; Wrongful

Confinement of Anil Bheda; Pressure tactics/manipulation by

accused persons to cover up C.R. No. 302/2006; CDRs; and

Criminal Conspiracy, have recorded our findings/observations in

each of the said circumstance, in great detail keeping in mind the

evidence led and hence will be referring to each of the said

circumstances very briefly.

S.Q. Pathan / N.S. Chitnis 731/867

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388 It is pertinent to note that the investigation in the

present case started after almost three years in 2009, after the

Division Bench of this Court directed constitution of a SIT and

registration of an FIR as against the accused. Accordingly, an FIR

came to be registered at the behest of PW1-complainant (brother

of the deceased), only because of his sheer tenacity, grit and

determination to expose the persons responsible for the murder

of his brother and to get justice. It is also pertinent to note that

after SIT took over the investigation of the said case and started

recording the statements of witnesses, some of the witnesses were

threatened and intimidated, so that they do not depose against

the accused or spill the beans. Some were even asked to leave the

city or to depose falsely.

389 Anil Bheda was a prime/star witness for the

prosecution i.e. with respect to his and Ramnarayan's abduction

i.e. how they were taken from Vashi to Bhandup, from Bhandup

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to D.N. Nagar and how he was confined thereafter for a month.

Anil Bheda's statement was recorded by SIT under Section 161 on

3rd September 2009 as well as before the learned Magistrate on

30th December 2009, disclosing the complicity of the accused.

Anil Bheda had also identified the accused who abducted him i.e.

A2, A3, A4, A6, A7, A8, A10 and A12 in the three, TIPs

conducted. However, before his evidence could be recorded, i.e.

after charge was framed on 8th March 2011 in the case, and

before his evidence was recorded i.e. his evidence was to be

recorded on 16th March 2011, Anil Bheda was abducted and

killed on 13th March 2011. Anil Bheda's body was found in a

burnt condition and could only be identified because of the DNA.

We are informed that the investigation of the said case is still

pending with the State CID since 2011. It appears that no steps

have been taken by the State CID to conclude the investigation in

the said case and trace the perpetrators i.e. persons responsible

for Anil Bheda's death.

S.Q. Pathan / N.S. Chitnis 733/867

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390 The prosecution, despite several odds, has done

remarkable investigation in the said case. The SIT constituted

under PW110-K.M.M. Prasanna and the other team members i.e.

PW107-Manoj Chalke, PW108-Vinay Ghorpade and PW109-

Sunil Gaonkar have taken sincere efforts to collect evidence in

the form of station diaries, CDRs, etc. and have recorded the

statements of witnesses, under 161 as well as before the

Magistrate under 164 Cr.PC Because of the efforts of SIT i.e.

K.M.M. Prasanna and his team of officers, who diligently and

meticulously collected voluminous record, despite all odds faced

by them, including the prime witness-Anil Bheda being killed, just

three days before he could depose, the prosecution could succeed

in bringing home the guilt of the appellants/accused, who are

police personnel and one, a private person. It was a mammoth

task. The efforts taken by the members of the SIT are indeed

commendable, in particular, having regard to the fact, that some

of the accused were decorated police officers.

S.Q. Pathan / N.S. Chitnis 734/867

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391 The prosecution has been able to establish that a

squad was formed and that it existed under OA1, albeit illegal,

through the evidence of witnesses, that some police personnel i.e.

A15, A2, A3 and A7, were deputed to D.N. Nagar Police Station

from different police stations, under OA1 and A13 and A16 were

assisting OA1. The prosecution has not only brought oral

evidence of PW20, PW25, PW32, PW43, PW45, PW55, PW72,

PW79, PW82 and PW87 on record to prove that a squad existed,

but has also supported the said oral evidence by documentary

evidence, in the form of station diary entries/documents. Thus,

there was a squad, which existed under OA1, has been duly

proved by the prosecution. We have in detail, dealt with the

evidence adduced by the prosecution vis-a-vis squad, whilst

dealing with the said circumstance i.e. 'Formation of Squad' and

have recorded our finding. We, having regard to the

overwhelming evidence on record, find that the finding recorded

by the trial Judge, that the prosecution had failed to prove the

existence of a squad, is perverse, inasmuch as, the learned Judge

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had relied only on the evidence of PW78-Bipin Bihari, Addl. CP.

West Region, without considering the overwhelming evidence of

other witnesses that had come on record vis-a-vis existence of a

squad under OA1, the station diary entries and ofcourse, no cross

of some of the witnesses on the same. We have observed that

PW78-Bipin Bihari, Addl. CP, West Region, for obvious reasons,

had denied sending any person on deputation or that a squad

existed. Obviously, PW78, the Addl. CP would have been in the

dock. Thus, the prosecution has successfully proved the existence

of a squad under OA1.

392 It is also pertinent to note, that the evidence of

PW87-Ajendrasingh Thakur, clearly shows that some of the team

members of the squad were also involved in the encounter which

took place at Kala-Ghoda, in which OA1 and A9 were members.

In the said encounter which took place at Kala-Ghoda, the police

personnel involved were OA1, A2, A3, A7, A9, A15, A16, A18,

and A22. Learned Spl. PP also submitted that whilst on parole in

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the present case (Lakkhanbhaiya case), A7 committed another

offence i.e. was involved in the Antilia Case (Mansukh Hiren

Murder) in which OA1 is also an accused alongwith others.

393 The prosecution has also by cogent and legally

admissible evidence, proved abduction of Anil Bheda and

Ramnarayan on 11th November 2006 at around 12:35 hrs. We

have, while considering the evidence of abduction, having regard

to the principle in Section 6 of res gestae held the disclosures

made by Nilesh to PW38-Dheeraj Mehta and by Anil Bheda to

PW40-Aruna Bheda as admissible, for reasons set out therein. We

have found that the said disclosure made by Nilesh to PW38 was

immediate, spontaneous, contemporaneous, having regard to the

fact that within, 3 to 4 minutes, Nilesh disclosed to PW38 that his

friend and friend's friend were abducted in a Qualis by 5 to 6

persons in civil dress. The said news was immediately

communicated by PW38 to PW57-Girish Nepali and thereafter,

calls were exchanged between PW38, PW57, PW3 and PW1.

S.Q. Pathan / N.S. Chitnis 737/867

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The evidence of the said witnesses is duly

corroborated by the CDRs, and is a testimony of the prompt

responses to each other. The evidence of each of these witnesses

is duly corroborated by each other and also by the evidence of

PW40-Aruna Bheda. The evidence of the said witnesses is again

duly corroborated by the telegrams and faxes sent by PW1 and

PW2 in the name of Aruna Bheda to various authorities soon

thereafter i.e between the period 14:00 hrs to 18:28 hrs. The

details of the faxes and telegrams sent, have been dealt with by us

in detail, whilst discussing the circumstance of 'abduction'. One

of the fax sent to the CP, Thane, reads thus :

"RESPECTED SIR,

THIS IS TO BRING TO YOUR KIND NOTICE THAT MY HUSBAND ANIL BHEDA AND HIS FRIEND RAMNARAYAN VISHWANATH GUPTA HAS BEEN PICKED UP BY PLAIN CLOTHES POLICEMAN FROM SECTOR 9, VASHI, NAVI MUMBAI, THAT THE SAID POLICEMAN WERE IN A SILVER COLOUR QUALIS CAR.

S.Q. Pathan / N.S. Chitnis 738/867

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I SUSPECT THAT THEY WILL KILL THEM IN A FAKE ENCOUNTER.

PLEASE SAVE THEIR LIFE."

FROM ARUNA ANIL BHEDA SECTOR 29, VASHI, DIAMOND APARTMENT NAVI MUMBAI."

The sending of faxes/telegrams is also corroborated by

the various authorities, who either sent the faxes/telegrams or

who received the said faxes and telegrams. The faxes and

telegrams were also sent to the Chief Minister and Deputy Chief

Minister on the very same day, prior to the alleged encounter by

the police. All the faxes and telegrams were sent, soon after

receiving the information and prior to the alleged encounter of

Ramnarayan by the police. It is also pertinent to note that prior to

11th November 2006, watch was being kept by some of the

appellants on the house of Anil Bheda, where Ramnarayan would

visit/stay. The same is again duly corroborated by the CDRs of the

appellants/accused, most of whom are police personnel i.e. A2,

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A3 and A7. It is pertinent to note, that the police personnel who

were party to the abduction, were deputed to D.N. Nagar Police

Station, Mumbai, a different Commissionerate, whereas, their call

records show their presence in a different Commissionerate area

i.e. Navi Mumbai. It is also pertinent to note, that neither of

their residences are in Navi Mumbai. A2 lived at Mira Road

(East), Thane; A3 at Bandra (West), Mumbai and A7 at Kalwa,

Thane. No explanation whatsoever has been offered by any of

the appellant/accused to even remotely suggest how and why they

were present in Navi Mumbai, as reflected from the CDRs. That

A2, A3 and A7 were using the mobile numbers as alleged by the

prosecution, has also been duly proved by the prosecution,

through the witnesses examined in this behalf.

394 Thus, the evidence on record shows that Ramnarayan

and Anil Bheda were abducted on 11 th November 2006 at around

12:35 hrs. in a Qualis by some of the appellants/accused, who

were tracking the whereabouts of Ramnarayan from the previous

day. Both, Anil Bheda and Ramnarayan, according to the

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prosecution, were taken to Bhandup and thereafter to D.N. Nagar

Police Station. It is pertinent to note that neither Anil Bheda's nor

Ramnarayan's mobiles were active, post 12:30 hrs., i.e.

Ramnarayan's last call, as per the CDR is 12:33 hrs on 11 th

November 2006.

395 Once the prosecution has succeeded in showing that

Ramnarayan and Anil Bheda were abducted, the onus would then

shift on the appellants/accused to show what happened to

Ramnarayan thereafter. It is not the prosecution case that

Ramnarayan escaped and as such, was again apprehended at Nana

Nani Park and was shot in a genuine encounter. Even though the

burden would be on the appellants/accused under Section 106 of

the Evidence Act, to show what happened to Ramnarayan, we

may observe here, that the prosecution has also proved the

circumstance of custodial death/murder of Ramnarayan by leading

cogent evidence, both, oral as well as documentary. We have dealt

with in great detail how the encounter of Ramnarayan was a fake

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encounter, whilst dealing with the said circumstance of

murder/custodial death of Ramnarayan. The evidence on record

shows that the encounter as alleged by the police was not a

genuine encounter, in which 12 persons are stated to have

participated, but a fake encounter, which was attempted to be

given a colour of a genuine encounter. There is overwhelming

evidence to show that the encounter was a fake encounter i.e.

registration of a false FIR (C.R. No.302/2006); that the spot

panchnama was not recorded at the spot; no meeting was held in

A9's cabin; creation of false station diary entries and documents;

planting of a revolver and railway tickets on the deceased; the

ballistic expert's report; non-finding of the fingerprints on the

weapon allegedly used by Ramnarayan; finding of only one foot

diameter blood, considering the number of wounds sustained by

Ramnarayan i.e. one on his forehead, one on his right finger and

two on his chest; the distance of firing and so on. We have in

great detail dealt with the same, whilst considering the

circumstance of 'Encounter/Custodial Death/Murder'.

S.Q. Pathan / N.S. Chitnis 742/867

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396 The evidence on record also shows how A9 and some

of the appellants/accused manipulated the records to show that it

was a genuine encounter. The evidence clearly reveals that the

spot panchnama was not prepared at the spot, but was prepared at

Versova Police Station. The testimony of PW73 would clearly

reveal the same. PW73's testimony has not been shattered, despite

a gruelling cross. It is also evident from the evidence on record

that though A9 has alleged that he had informed the superior

officers and had sought permission to conduct the operation, all

the witnesses have deposed, to the contrary i.e. they were not

informed about the operation. It also appears that false station

diaries were created to cover up the fake encounter and false

evidence was created by planting railway tickets and weapon on

the person of Ramnarayan.

397 The prosecution has also proved by cogent, legal and

admissible evidence the ballistic expert's report, through PW86-

Gautam Ghadge. The said ballistic expert's evidence and report

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clearly shows that A9, A15, OA1 and A2 had fired at the

deceased. That the firing was from a close distance of around 2

meters has also been established by PW86-Gautam Ghadge and

PW29-Dr Gajanan Chavan. The learned trial Court Judge has

also accepted and relied on the said evidence, however, despite

recording the said finding, has acquitted OA1, after observing that

except this, there is no other evidence qua him.

398 The evidence of wrongful confinement of Anil Bheda

has also been proved by the prosecution i.e. Anil Bheda was

wrongful confined at Bhatwadi, Ghatkopar, thereafter at

Kolhapur in a hotel for 3 to 4 days, and thereafter, at Mid-town

Hotel at Andheri (West), Mumbai. The evidence vis-a-vis

wrongful confinement of Anil Bheda is overwhelming and clearly

shows the complicity of the appellants/accused in confining Anil

Bheda at the aforesaid places. The same has been deposed to by

PW40, inasmuch as, PW40-wife of Anil Bheda was asked to call

on two numbers i.e. of A2 and A3. The fact that the said calls

S.Q. Pathan / N.S. Chitnis 744/867

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were made, is also duly supported by the CDRs of A2 and A3.

PW40, has identified A2, A3 (confinement at Bhatwadi) and A5

(confinement at Kolhapur) There is evidence of other witnesses,

which clearly reveals that Anil Bheda was confined by the

appellants/accused i.e. A2, A3, A5 and A13. Anil Bheda was

confined from 11th November 2006 to around 12th December

2006, at different places. The purpose of confining Anil Bheda

was far too obvious, that Anil Bheda does not spill the beans and

reveal the truth.

399 All the aforesaid evidence of the witnesses i.e. on

abduction, murder and wrongful confinement is duly

corroborated by the CDRs. The prosecution has examined as

many as seven Nodal Officers, i.e. PW54, PW62, PW65, PW69,

PW85, PW89 and PW97, of various companies to prove the

information supplied by them, at the behest of SIT. No question

was asked with respect to requirement of Section 65B Certificate

to all the Nodal Officers and as such, the prosecution has been

S.Q. Pathan / N.S. Chitnis 745/867

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able to prove the CDRs of the appellants/accused i.e. the spots at

which they were present at the time of abduction i.e. at Navi

Mumbai to Bhandup to D.N. Nagar Police Station and from D.N.

Nagar Police Station to Nana Nani Park. Some of the mobile

numbers stood in the names of the appellants/accused, some in the

name of others. Most of the appellants/accused have denied

using the numbers, however, prosecution has, through the

evidence of the witnesses proved that the numbers were being

used by the appellants/accused. Infact, A5 had six numbers i.e.

XXXXXX1156, XXXXXX5068, XXXXXX5874,

XXXXXX5805, XXXXXX8104 and XXXXXX2987, registered

in his name, out of which XXXXXX2987 was used by OA1, and

XXXXXX5118 though registered in the name of Shaikh Kaider,

was used by A5. It is pertinent to note that at the time when A5

was in Kolhapur with Anil Bheda, his wife (PW40) and son, OA1's

location is shown at D.N. Nagar Police Station (mobile

No.XXXXXX2987). Although, PW68-Geetanjali Datar, Court

Sheristedar has turned hostile, her evidence to the extent that she

S.Q. Pathan / N.S. Chitnis 746/867

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supports the prosecution, has been relied upon. PW68 has in her

evidence stated that she was using mobile bearing

No.XXXXXX2638, which stood in the name of her husband;

that she knew OA1 as an officer as he had some cases under the

Narcotics Act in different Courts, including in her Court i.e.

Court Room No.48; that there was DF matter in her Court, in

which one accused was arrested and brought before the Court,

pursuant to which the case was reopened; that OA1 was the

Investigating Officer in the said case; that once OA1 had come to

Court No.48, after which constables would attend the said case;

that a Constable told her that if a certified copy of judgment was

required, she should call OA1 on his phone and that the constable

gave her the phone number of OA1. She has further deposed that

the case was tried in October, November 2006; that in the month

of November 2006, OA1's number was given to her. She has

stated that when she called on the said number on 11 th November

2006 and 15th November 2006, she heard only "Hello" and then

the phone got disconnected, pursuant to which she received a call

S.Q. Pathan / N.S. Chitnis 747/867

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on her phone; that she disclosed that the judgment was ready and

the copy of the judgment would be received. PW68's evidence

shows that the mobile number which she called on, was that of

OA1 (which stood in A5's name) (Exhibit 543). PW68's evidence

does not show, she knew A5 or had called A5. It is pertinent to

note that on 15th November 2006, A5 was at Kolhapur with Anil

Bheda, PW40 and their son, whereas, the said number was

operational in Mumbai and there are a number of calls from J.B.

Nagar (OA1's residence) and D.N. Nagar Police Station. On 15 th

November 2006, at 21:24 hrs., OA1 spoke to PW68 for 62

seconds. The evidence on record also shows exchange of several

calls between PW78-Bipin Bihari, Addl. CP. West Region,

Mumbai, and the mobile number standing in A5's name, but used

by OA1. PW78 has categorically stated that he did not know A5.

400 The accused, in order to cover up the fake encounter,

used pressurizing tactics on witnesses, manipulated records and

the said evidence has also been brought on record by the

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prosecution. The evidence on record shows how A9 threatened

the learned Magistrate to submit a report under Section 167

Cr.P.C, that the encounter was not a fake encounter, pursuant to

which, he was convicted by the High Court in a Suo Motu

Contempt Petition for three months. The SLP against the said

order was also dismissed by the Apex Court. The evidence

brought on record also shows that A9's brother, who was an ACP

at the relevant time, attempted to interfere in the investigation by

pressurizing police officers to record 164 statements of witnesses,

despite the matter being subjudice before the High Court (Writ

Petition filed by PW1); and the evidence, that pressurizing tactics

were employed to send PW38 out of Mumbai, so that, he does

not depose before SIT. The said incident was soon after SIT was

constituted by the High Court. Evidence on record also shows

that one advocate who was appearing for some of the

appellants/accused was present alongwith A5, when PW38 visited

the office of SIT, pursuant to which, he gave his earlier statement

before SIT as well as before the learned Magistrate. The

S.Q. Pathan / N.S. Chitnis 749/867

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additional affidavit of A9 reveals that the statement of the

fingerprint expert was recorded nearly three years after the

incident, more particularly, when A9 was posted at D.N. Nagar

Police Station, Andheri and was, in no way, connected with C.R.

No. 302/2006. The said statement is annexed by A9 to his

affidavit filed by him in the writ petition. It is pertinent to note

that A9 has filed an affidavit stating how the encounter took

place, as according to him, it was a genuine encounter done in

the course of his official duty. The fact that it was a genuine

encounter has also been accepted by three accused i.e. A2, A9 and

A15. Similarly, A11, A13, A16, A18 and A19 accept the

genuineness of the C.R. i.e. C.R. No.302/2006, as evident from

their answers to the Q.No.155, put to them under Section 313

Cr.PC. As far as A17 is concerned, he has pleaded ignorance of

C.R. No.302/2006 and stated that he was there at the spot, post

the incident, only to help. The evidence on record also shows

that the spot panchnama was prepared at the police station itself

and not at the spot where the alleged encounter took place.

S.Q. Pathan / N.S. Chitnis 750/867

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401 The prosecution has also proved the movement of

weapons used by the accused who fired at Ramnarayan. Ofcourse,

A9 and A15 do not dispute firing at Ramnarayan, but according

to them, it was a genuine encounter. The fact, that Ramnarayan

was fired at by OA1, A2, A9 and A15's weapons, is duly

supported by ballistic expert's evidence and report. No doubt,

PW86-Gautam Ghadge, Ballistic Expert, was examined at length,

his evidence has not been shattered despite a gruelling cross.

Infact, PW86's evidence shows that he is an expert witness and

that he had conducted all the tests as required to support his

finding i.e. Ramnarayan was fired at by OA1, A2, A9 and A15.

402 From the evidence on record, it can be clearly

inferred that each of the accused played some role or the other in

achieving their illegal object i.e. to kill Ramnarayan. We have

also dealt with this circumstance whilst dealing with the

circumstance of 'Criminal Conspiracy'. We, keeping in mind the

circumstances on record adduced by the prosecution, find that

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when the same are taken together, would indicate the meeting of

the minds between the accused for the intended object of

committing an illegal act i.e. the murder of Ramnarayan and that

all the means adopted and illegal acts done were in furtherance

of the conspiracy hatched.

403 We may also note that the prosecution has not placed

much reliance on the circumstance of motive, inasmuch as, the

witnesses vis-a-vis, motive have turned hostile. Be that as it may,

although the circumstance of motive has not been proved by the

prosecution, in the facts of the present case, there being

overwhelming evidence in the form of other circumstances as

narrated aforesaid, failure to prove motive pales into

insignificance and in the facts, will not in anyway impact the

prosecution case.

404 We find that the prosecution through oral and

documentary evidence has proved each and every circumstance

S.Q. Pathan / N.S. Chitnis 752/867

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relied upon by them by cogent, legal and admissible evidence and

each of the said circumstance so proved by the prosecution, forms

a chain, which is so complete and which unerringly points to the

guilt of the appellants/accused and excludes any hypothesis

consistent with the innocence of the appellants/accused, who are

police personnel and one private person. The appellants/accused

who participated in the encounter are all police

officers/personnel, whose duty was to protect the people and to

uphold law and order. In the facts, far from upholding the rule of

law, the police accused have clearly acted to the contrary. These

very officers / police personnel grossly misused their positions /

power and murdered Ramnarayan in cold-blood, and gave it a

colour of a genuine encounter. We find all the appellants/accused,

who are police, and A5, a private person to be complicit in the

crime. As noted, 12 police personnel participated in the alleged

encounter, as per C.R. No. 302/2006. Almost all the police

accused had not raised any objection to their names being

disclosed in the said C.R, during the trial. We have in detail, set

S.Q. Pathan / N.S. Chitnis 753/867

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out the stand of each of the police accused in para 32 herein-

above. However, in the present appeals, some of the accused

have denied their presence, for the first time. We have, in detail,

set out the stand of each of these accused i.e. police in para 32

herein-above.

405 Death in police custody must be curbed with a heavy

hand and must be viewed seriously. There can be no room for

leniency as the persons involved i.e. the police, are the arm of the

State, whose duty is to protect the citizens and not to take law

into their hands and commit gruesome offences against them.

The protectors/guardians of law cannot be permitted to act as

criminals in uniform. If this is permitted, it would lead to

anarchy.

406 No doubt, Ramnarayan had several cases i.e. around

10 cases registered against him, however, that by itself, would not

give the appellants/accused i.e. the police and the other persons,

S.Q. Pathan / N.S. Chitnis 754/867

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license to kill. Instead of upholding the rule of law, the police

have misused their positions and uniform, and have killed

Ramnarayan in cold blood. It is pertinent to note that the last

case registered as against Ramnarayan was in the year 1998 and

that not a single case was registered as against Ramnarayan either

with D.N. Nagar Police Station, Versova Police Station or

Oshiwara Police Station.

407 Non-explanation or failure to discharge the burden

under Section 106 of the Evidence Act, as to what happened to

Ramnarayan, since Ramnarayan was in the custody of the police

after his abduction, has also not been explained by the

appellants/accused. This, in our view, will constitute an

additional circumstance in the chain of circumstances already

proved by the prosecution. The fact, as to what happened to

Ramnarayan after his abduction by the accused persons, was well

within their special knowledge and therefore they could have

S.Q. Pathan / N.S. Chitnis 755/867

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offered some explanation. We are afraid, none have not offered

any explanation.

408 As far as A5-Hitesh Solanki @ Dhabbu, a private

person is concerned, the prosecution has proved his complicity in

the crime. The role of A5 has been proved by the prosecution in

taking Anil Bheda and Aruna Bheda to Kolhapur. PW40-Aruna

Bheda has herself identified A5, as the person who accompanied

her and Anil Bheda to Kolhapur. PW40 has also deposed how

A5 gave her a prepared affidavit (Exh. 335) to submit it before

the Metropolitan Magistrate during the inquiry. The prosecution

has also examined witnesses who have identified A5, as the

person who was present at Mid-town Hotel, where Anil Bheda

was confined. There are calls between 26 th November 2006 to

30th November 2006, on one of A5's mobile No. i.e.

XXXXXX5118 from the PCO, of PW40's father i.e. call made by

PW40 to speak to Anil Bheda. We have in detail, discussed the

S.Q. Pathan / N.S. Chitnis 756/867

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evidence whilst dealing with the circumstance of confinement of

Anil Bheda and the witnesses who have spoken about the

presence of A5 at Mid-town Hotel, Andheri. Some of the

witnesses have also deposed with respect to A5 sitting outside

OA1's office and screening persons visiting OA1. PW38 has also

disclosed A5's presence with Advocate Brahmabhatt, a lawyer of

the accused, when he had gone to SIT for recording his statement

for the first time, so that he toes their line. The evidence on

record also shows OA1 was using mobile No. XXXXXX2987,

registered in A5's name. Thus, the circumstances on record, qua

A5, clearly points to his complicity in the commission of the

crime.

409 The trial Court has accepted the evidence led by

prosecution, vis-a-vis abduction; murder/custodial death; the

ballistic expert's evidence; and wrongful confinement of Anil

Bheda as against all the appellants/accused. However, we after

carefully perusing the evidence, find that the prosecution has

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proved its case beyond reasonable doubt as against the appellants,

who are police personnel i.e. A2, A3, A7, A9, A11, A13, A15,

A16, A17, A18, A19, A20 and one private person i.e. A5.

410 As far as abduction is concerned, at the cost of

repetition, we hold that the prosecution has proved beyond

reasonable doubt, that Ramnarayan and Anil Bheda were

abducted by 5-6 persons, in a Qualis. Although the prosecution

has proved that Ramnarayan and Anil Bheda were abducted in a

'Qualis', the only question is, whether the Qualis, was the one as

alleged by the prosecution. To that extent, we are afraid, we are

unable to record a finding on the same for the following reasons:

411 It is the prosecution case, that A10 had organised the

Qualis, in which Ramnarayan and Anil Bheda were abducted. It

is pertinent to note, that Anil Bheda had in the TIP identified A10

amongst other accused as his abductor, however, in view of Anil

Bheda's death for want of substantive evidence, we turn to the

S.Q. Pathan / N.S. Chitnis 758/867

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other evidence placed on record by the prosecution. The

prosecution has relied on the evidence of PW14-Parmanand

Desai, PW16-Sujit Mhatre and PW48-Sandesh Chavan, to show

that the Qualis which was used in the commission of the offence

was taken by A10 from PW16-Sujit Mhatre. In connection with

the same, the prosecution examined PW14-Parmanand Desai, to

show that A10, who was working as a sweeper in the Mumbai

Municipal Corporation had taken half-day leave on 9 th November

2006; on 10th November 2006, a weekly-off and on 11 th

November 2006, a casual leave. PW16-Sujit Mhatre was also

examined to show that a Qualis was taken from him on hire by

A10 for his personal use in November 2006. Similarly, the

prosecution examined PW9-Sundar Tendulkar, who had

purchased the vehicle from PW16-Sujit Mhatre and PW10-

Mrugesh Negandhi, who later purchased the said vehicle from

PW9-Sundar Tendulkar.

412 Admittedly, none of the witnesses examined to prove

S.Q. Pathan / N.S. Chitnis 759/867

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abduction have spelt out the Qualis vehicle number. All that they

categorically state is that it was a Qualis vehicle. No doubt

prosecution has examined witnesses to show that A10 who was

working in the Municipal Corporation was on leave on 11 th

November 2006 and that he had taken a Qualis No. MH 04 AY

8472 on hire, from PW16 that day, that by itself, is not sufficient

to point to the complicity of A10 in the crime i.e. the very Qualis

vehicle taken by A10 on hire, was used in the abduction.

413 Although the prosecution has proved by legal, cogent

and admissible evidence that Ramnarayan and Anil Bheda were

picked up in a Qualis vehicle by 5-6 persons, the prosecution has

not proved that this was the very vehicle used in the abduction,

which was taken by A10 from PW16-Sujit Mhatre. Admittedly,

no number of the vehicle has come in the evidence and as such,

we do no deem it safe to place implicit reliance on the evidence

that has come on record with respect to the complicity of A10

vis-a-vis hiring of the vehicle from PW16-Sujit Mhatre, in

S.Q. Pathan / N.S. Chitnis 760/867

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November 2006. Similarly, merely because A10 was on ½ day

leave on 9th November 2006, leave on 10 th November 2006 and

weekly-off on 11th November 2006, by itself cannot be

incriminating. Considering the aforesaid evidence, we do not

find the said evidence sufficient to convict A10, and as such give

him benefit of doubt.

414 As far as A8, A12 and A21 (private persons) are

concerned, we are afraid that the evidence adduced by the

prosecution as far as the said appellants are concerned, has also

not been proved beyond reasonable doubt, qua the said accused.

The conviction of the said accused appears to be essentially based

on the progress report submitted by PW110-K.M.M. Prasanna.

Admittedly, the CDR's of A8, A12 and A21 were not collected,

due to passage of time.

415 It is pertinent to note that although it is the

prosecution case that A8, A12 and A21 alongwith A4 and A10

S.Q. Pathan / N.S. Chitnis 761/867

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(all private persons) were also part of the team of abductors

alongwith A7 (police personnel) at Vashi, the evidence qua them

i.e. the private persons, has not been proved beyond reasonable

doubt. Although the prosecution has brought on record the

CDRs of A4, the CDRs of A8, A12 and A21 were not collected,

as their CDRs were not available after 3 years. It is also pertinent

to note that although A4, A5, A6, A8, A10 and A12 (private

persons) alongwith A2, A3, A7, A13 and A16 (police personnel),

were identified by Anil Bheda in the TIP I.e. the persons who

abducted and confined them, however, in view of the demise of

Anil Bheda, for want of substantive evidence with respect to the

same, we are unable to consider the said evidence of

identification. As far as A4 is concerned, the only evidence qua

A4 is his CDR, which by itself, is not sufficient. Suspicion,

however strong, cannot take the place of legal proof.

416 Considering the aforesaid, the conviction of A4, A8,

A12 and A21 (all private persons), cannot be sustained.

S.Q. Pathan / N.S. Chitnis 762/867

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417 As far as A6-Akhil Shirin Khan @ Bobby, a private

person is concerned, the prosecution submitted that A6 was one

of the trusted member of the illegal squad working with OA1;

that A6 was involved in the abduction; that A6 was at Vashi on

10th November 2006 and on 11th November 2006; that A6

alongwith others took the custody of Ramnaryan and Anil

Bheda at Bhandup Complex; that A6 was in regular contact with

the accused persons, before, during and after abduction; that A6

was present at the D.N. Nagar Police Station, when deceased and

Anil Bheda were brought; and that the mobile sim card stood in

the name of A6. In short, the evidence against A6 is essentially

based on the CDRs of A6. It is again pertinent to note that A6

was identified by Anil Bheda, however, in view of Anil Bheda's

murder before his evidence could be recorded, for want of

substantive evidence, we do not find it proper to place reliance

only on A6's CDR for convicting A6, and as such A6's,

conviction only on this evidence cannot be sustained.

S.Q. Pathan / N.S. Chitnis 763/867

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418 Accordingly, for the reasons aforesaid, the following

order is passed :

ORDER

(1) The judgment and order of conviction and

sentence passed by the trial Court is upheld, as against the

following appellants:

i) Nitin Gorakhnath Sartape (A11), appellant in

Criminal Appeal No.707 of 2019;

ii) Sandip s/o Hemraj Sardar (A20), appellant in

Criminal Appeal No.86 of 2021;

iii) Tanaji Bhausaheb Desai (A2), appellant in

Criminal Appeal No.104 of 2021;

iv) Pradeep Pandurang Suryawanshi (A9), appellant

in Criminal Appeal No. 151/2021;

S.Q. Pathan / N.S. Chitnis 764/867

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iv) Hitesh Shantilal Solanki @ Dhabbu (A5),

appellant No.1 in Criminal Appeal No.943/2013;

vi) Ratnakar Gautam Kamble @ Rattu (A3),

appellant No.1 in Criminal Appeal No.1038/2013;

vii) Vinayak Balasaheb Shinde @ Veenu, (A7),

appellant in Criminal Appeal No.1080 of 2019/Respondent

No.3 in CRA/182/2023;

viii) Devidas Gangaram Hari Sakpal (A13), appellant

in Criminal Appeal No.1177 of 2019;

ix) Anand Balaji Patade (A18), appellant in

Criminal Appeal No.1239 of 2019;

x) Dilip Sitaram Palande (A15), appellant in

Criminal Appeal No.1242/2018;

S.Q. Pathan / N.S. Chitnis 765/867

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xi) Pandurang Ganpat Kokam (A19), appellant in

Criminal Appeal No.1488 of 2018;

xii) Ganesh Ankush Harpude (A17), appellant in

Criminal Appeal No.1490 of 2018;

xiii) Prakash Ganpat Kadam (A16), appellant in

Criminal Appeal No.1493 of 2018.

Accordingly, the aforesaid appeals stand

dismissed qua the said appellants.

(2) As far as Janardan Tukaram Bhanage (A14),

appellant No.3 in Criminal Appeal No.943 of 2013 and

Arvind Arjun Sarvankar (A22), appellant No.3 in Criminal

Appeal No.1038 of 2013 are concerned, the appeals qua

the said appellants, do not survive in view of their demise

and as such, stand abated.

S.Q. Pathan / N.S. Chitnis 766/867

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(3) As far as Manoj Mohan Raj @ Mannu (A8),

Sunil Ramesh Solanki (A10), Mohamed Shaikh Mohd. Taka

Moiddin Shaikh (A12) and Suresh Manjunath Shetty (A21),

all appellants in Criminal Appeal No.942/2013 as well as

Akhil Shirin Khan @ Bobby (A6), appellant No.2 in

Criminal Appeal No.943/2013, and Shailendra

Dhoopnarayan Pandey (A4) in Criminal Appeal

No.944/2013 are concerned, the judgment and order of

conviction and sentence passed by the trial Court qua the

said appellants/accused stands quashed and set-aside and

they are acquitted of all the offences with which they are

charged. The said appellants/accused be released forthwith,

if not required in any other case.

419 Before parting, we may observe that Anil Bheda, a

prime and a star witness in the said case, a witness to abduction,

i.e. of Ramnarayan and his own, from Sector 9A, Vashi, to

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Bhandup Complex and then to D.N. Nagar Police Station and of

his own confinement, was abducted and murdered on 13 th March

2011, in the most gruesome manner, within 3 - 4 days, after

charge was to be framed in the case i.e. on 8th March 2011

before his deposition scheduled on 16 th March 2011. Anil Bheda's

dead body was found burnt and only on the basis of DNA, his

dead body was identified.

420 We may note that the case i.e. Anil Bheda's abduction

and murder is being investigated by the State CID. Learned Spl.

PP placed on record the report of the State CID. It appears from

the said report that there is absolutely no progress in the said

case. It is a matter of shame, that more than a decade has lapsed,

but there is no progress in the case. It is extremely unfortunate,

that a prime eye-witness in this case, Anil Bheda, lost his life

before his evidence could be recorded and till date, the

perpetrators of Anil Bheda, have not been booked and are

obviously looming large. It is travesty of justice, for the family,

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who have lost a near and dear one. The police whose duty it is, to

uphold the law, and to find the perpetrators of the crime, have

hardly taken any pains to trace the perpetrators. It is important

for police to investigate and to take the case to its logical end,

lest people loose faith in the system. We hope and expect that the

State CID will continue with its investigation and take the same to

its logical end.

V. APPEAL AGAINST ACQUITTAL

421 We have dealt with the circumstances relied upon

by the prosecution i.e. Formation of Squad; Abduction;

Encounter/Custodial Death/Murder; Ballistic Evidence/Forensic

Evidence; CDRs which also pertain to the present

respondent/OA1 and have recorded our findings/observations in

the said appeals against conviction preferred by the

appellants/accused therein. Since the evidence is overlapping,

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we do not wish to again reproduce/repeat the said evidence in

detail in the present appeals.

A. Criminal Appeal No.854/2013 and Criminal Appeal No.350/2015 preferred by the complainant- Ramprasad Vishwanath Gupta and the State of Maharashtra respectively, against the acquittal of Pradeep Sharma (OA1):

Submissions of Dr. Yug Chaudhry for the Appellant-

Ramprasad Vishwanath Gupta:

422 Dr. Yug Chaudhry appearing for the appellant i.e.

Ramprasad Gupta-the brother of the deceased, submitted that the

aforesaid appeal has been filed as against the acquittal of the

respondent (OA1) in the said case. He submitted that the

findings recorded by the learned Judge whilst acquitting the

respondent (OA1), at the highest, are perverse. He submitted

that the observations made by the learned Judge that there is no

direct or circumstantial evidence against the respondent (OA1) or

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that none of the witnesses have attributed any role to OA1, or

that there is no iota of evidence against OA1 for killing the

deceased, are not borne out from the evidence on record. He

submitted that infact all the circumstances adduced by the

prosecution militates against these findings. He submitted that

the prosecution has duly proved (from the evidence on record)

that the weapon from which the bullet was fired was the service

revolver of the respondent (OA1). In support of his submission,

Dr. Chaudhry relied on the ballistic report to show that the empty

shell allegedly fired by A22 from his weapon, was infact fired

from the respondent's (OA1) service revolver. He submitted that

the learned Judge accepted that the bullet was fired from OA1's

weapon, however, has observed that ballistic evidence was

a weak type of evidence and as such, has not relied on the

same for convicting the respondent (OA1). He further submitted

that the learned Judge has also erred in acquitting OA1 despite

there being ample evidence on record to show that OA1 was

heading the squad and that the accused i.e. police personnel and

S.Q. Pathan / N.S. Chitnis 771/867

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private persons were members of his squad. In support of the

said submission, Dr. Chaudhry relied on the evidence of PW20-

Sanjivan Shinge, PW25-Dhiraj Koli, PW32 - Sumant Bhosale,

PW43-Madan More, PW45-Naresh Phalke, PW55-Milind

More, PW63-Arun Awate, PW72-Manohar Desai, PW79-

Prataprao Kharate, PW82-Samir Faniband and PW87-

Ajendrasingh Thakur, to show that there was a squad in existence

and that the respondent (OA1) was heading the said squad. He

submitted that the learned Judge despite there being

overwhelming evidence of the aforesaid witnesses, has chosen to

rely only on the evidence of PW78-Bipin Bihari, Addl. CP, who

had deposed in his cross, that he had not formed any squad under

OA1. He submitted that the evidence of PW78 would show that

formation of squad was illegal and as such, the question of

PW78-Bipin Bihari, admitting having formed any such squad

would have put PW78-Bipin Bihari, in the dock.

S.Q. Pathan / N.S. Chitnis 772/867

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422.1 Dr.Chaudhry further submitted that the evidence of

PW40-Aruna Bheda and the disclosure made by Anil Bheda to

her on 12th November 2006 would be admissible in law under

Section 6 of the Evidence Act with respect to the disclosure made

by Anil Bheda i.e. his and Ramnarayan's abduction by the police

and they having been produced before the respondent (OA1) at

D.N. Nagar Police Station.

422.2 Dr. Chaudhry further submitted that the evidence

pertaining to CDR would show that the respondent (OA1) was

using the mobile number of A5, although, OA1 has denied the

same, for obvious reasons. He submitted that A5's phone was

being used by OA1 and that the CDR would show exchange of

several calls between the appellants/accused and OA1. He

submitted that it is pertinent to note, that OA1's location during

the calls is at D.N. Nagar Police Station and at early hours of the

morning and late night, at his residence i.e. at Andheri (East),

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whereas, the residence of A5 was at Santacruz. He submitted that

the CDR also shows that OA1 was present at the spot i.e. at Nana

Nani Park at the time of the alleged encounter i.e. at 20:17 hrs;

and that the ballistic expert's report i.e. that out of three bullets

found in deceased's body, one bullet was fired from OA1's

weapon.

422.3 According to Dr. Chaudhry, the prosecution

has duly proved from the evidence on record that the deceased

and Anil Bheda were abducted together; that they were in the

custody of the police and that Ramnarayan was shot on the very

same day, after which, Anil Bheda was again detained and

wrongly confined by the other accused, as revealed from the

evidence. He submitted that the CDRs will also show that A7

called OA1 at 12:39 hrs, soon after the abduction, and the

location of A7 was at Vashi, Sector 9, whereas that of OA1, at

D.N. Nagar Police Station. He further submitted that A5 was a

private person and had no reason to be at D.N. Nagar Police

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Station. He submitted that infact, the evidence on record shows

that A5 would sit outside the office of OA1 and would filter the

people coming to the office of OA1. He submitted that the

evidence on record would also show that PW78-Bipin Bihari did

not know A5 but there were several calls exchanged between

PW78-Bipin Bihari and OA1 (on the mobile registered in A5's

name but used by OA1) on the day of the incident i.e. 11 th

November 2006 and on 12th November 2006. According to Dr.

Chaudhry, the CDR also shows that when A5 was at Kolhapur,

OA1 was at D.N. Nagar Police Station.

422.4 Dr. Yug Chaudhry submitted that the learned

Judge despite observing that the ballistic report shows that OA1

had fired at the deceased, held that the said ballistic report was a

weak piece of evidence and as such could not be relied upon. He

submitted that the said finding is perverse. He submitted that the

said observation that the ballistic evidence is a weak type of

evidence, is contrary to law, more particularly, when there was

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ample evidence to show that not only did the ballistic report

show that OA1 fired at Ramnarayan from his revolver, but also

that there was other material and cogent evidence to corroborate

the said evidence. He, thus, submitted that though the said

finding of the ballistic expert recorded by the learned Judge,

shows the complicity of OA1, the learned Judge acquitted him

of all the offences.

422.5 Dr. Chaudhry further submitted that OA1 has not

disputed his signature with respect to return of weapon to

Dharavi Police Station nor has he seriously disputed the issuance

of a gun and handing over of the same. He submitted that the

ballistic expert's evidence i.e. PW86-Gautam Ghadge was

unimpeachable, credible and was not shattered, despite a grueling

cross-examination. He submitted that PW86's analysis shows that

he had several years of experience in the ballistic field and that

there was nothing to doubt his report, which clearly reveals the

firing of a bullet on the deceased from OA1's revolver (the said

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bullet was found embedded in the deceased's body). He

submitted that it is pertinent to note that although A22 is alleged

to have fired the bullet, the ballistic report does not support the

same and instead, the bullet fired by A22 is attributed to OA1's

revolver and is stated to have been fired from OA1's revolver. He

submitted that the presence of OA1 at the spot, coupled with the

ballistic report and other evidence, clearly points to his complicity

in the alleged crime.

422.6 Dr. Chaudhry submitted that the movement of the

weapon has been duly proved by the prosecution from its

seizure till the ballistic report.

422.7 Dr. Chaudhry relied on several judgments, with

respect to the scrutiny to be undertaken in an appeal against

acquittal; the importance of ballistic evidence in a case of murder

by firearm; law on res gestae; that lacunae in 313 was remediable;

that lack of proof of motive in a case of circumstantial evidence is

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not always fatal; that part evidence of a hostile witness to the

extent that it supports the prosecution case can be used; that

when there is no suggestion or cross-examination on a point, the

evidence has to be accepted; and judgments on appreciation of

evidence in custodial death cases.

Submission of Mr. Chavan, Spl. P.P. in Criminal Appeal No.

350/2015 on behalf of the appellant-State (State Appeal preferred

against the acquittal of Pradeep Sharma (OA1) :

423 As far as the State Appeal against acquittal filed by the

State of Maharashtra is concerned, i.e. Criminal Appeal

No.350/2015, Mr. Chavan adopted the submissions advanced by

Dr. Chaudhry. He submitted that the material on record

conclusively points to the guilt of OA1 i.e. of his involvement in

the abduction and killing of the deceased and thereafter, in

keeping Anil Bheda in wrongful confinement. Mr. Chavan,

learned Spl.PP relied on part evidence of PW68-Geetanjali

S.Q. Pathan / N.S. Chitnis 778/867

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Datar, Court Sheristedar (hostile) to show that she had called

OA1 on the number which stood in the name of A5. He

submitted that on 15th November 2006, when the 3rd call was

made by PW68-Geetanjali Datar, to OA1, OA1 was at D.N.

Nagar Police Station, whereas A5 was at Kolhapur. Mr Chavan

also relied on the evidence of PW78-Bipin Bihari. He submitted

that the said witness has admitted that there were to and fro calls

between him and another mobile number i.e. standing in the

name of A5 and used by OA1. It is submitted that although, the

said witness i.e. PW78 has stated that he did not know A5, PW78

does not state that this number was used by OA1, for obvious

reasons. Learned Spl.P.P has relied on the calls exchanged

between PW78-Bipin Bihari, Addl.CP and OA1 on 10th

November 2006. He submitted that if the phone calls were

received by PW78-Bipin Bihari's RTPC (Radio Talkie Police

Constable), as stated by PW78, there would not be such long

conversations. Mr. Chavan also relied on 9 calls exchanged

between PW78-Bipin Bihari and OA1 on 11th November 2006.

S.Q. Pathan / N.S. Chitnis 779/867

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He submitted that the calls on 11th November 2006 show that

OA1 was most of the time at D.N. Nagar Police Station and at

Nana Nani Park, at the time of the encounter i.e. 20:17:51.

Reliance was also placed on the CDRs of 10 th, 12th and 13th

November 2006 exchanged between PW78 and OA1.

423.1 Mr. Chavan also relied on the part evidence of

PW104-Anant Patil, who turned hostile. He submitted that the

evidence of PW104 - Anant Patil would show that he knew who

Anil Bheda was, as also OA1. He submitted that although the

said witness has denied his 161 and 164 statements, in his

examination-in-chief, the said witness has accepted that his 164

statement was correctly recorded by the Magistrate.

423.2 Mr. Chavan submitted that it is the prosecution case,

that PW104 mediated on behalf of Anil Bheda with OA1, as a

result of which, Anil Bheda's life was saved and that the same is

evident from the CDR, which shows calls exchanged between this

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witness and OA1. He submitted that the timings and the location

of OA1 and PW104 at D.N. Nagar Police Station at 15:15 hrs are

relevant. He submitted that the evidence on record would show

that Aruna Bheda reached Vashi Police Station, at around 17:00

hrs, after which Aruna Bheda withdrew her complaint and at

which time, Anil Bheda disclosed to Aruna Bheda that his life

was saved because of PW104-Anant Patil, as he had mediated.

He submitted that post the withdrawal of the complaint, there is

another call by PW104 to OA1 at 18:01 hrs (when OA1's

location is at D.N. Nagar Police Station).

Thus, it is evident from the evidence of PW78 and

the evidence of the other witnesses i.e. PW104, PW68 and the

CDRs of other co-accused that OA1 was using mobile no.

XXXXXX2987 standing in the name of A5.

423.3 Mr. Chavan also relied on the evidence of PW108 -

Vinay Ghorpade, who heard the conversation exchanged between

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Anil Bheda and an unknown caller on 12 th March 2011, with

respect to threats extended to him. The said witness has

reproduced the conversation heard by him, which was recorded.

The said CD is produced as Article 67. He submitted that the

said evidence of PW108-Vinay Ghorpade, is duly corroborated

by PW109-Sunil Gaonkar, with respect to the conversation heard

by them on the loudspeaker of Anil Bheda's phone i.e. the

conversation between Anil Bheda and the unknown person, in

which the unknown person told Anil Bheda to leave the city for

15-20 days. PW108 has reproduced the conversation heard by

him and PW109 and has stated that Anil Bheda was given the

mobile number of Advocate Sultan by the unknown caller and

was asked to meet him. Mr. Chavan submitted that it is pertinent

to note that Advocate Sultan was appearing for OA1.

423.4 Mr. Chavan submitted that the charge in the said case

was framed on 8th March 2011 and Anil Bheda was summoned to

depose in the said case on 16th March 2011 and that prior to

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recording of his evidence, Anil Bheda was done to death, in the

most gruesome manner on 13th March 2011. He submitted that

the body of Anil Bheda was found burnt, as a result of which he

could not be identified and that Anil Bheda was identified only

on the basis of the DNA Report.

423.5 Mr. Chavan, learned Spl. PP submits that the

circumstances on record, clearly point to the complicity of OA1

in the crime. According to Mr. Chavan, the findings recorded by

the trial Court were perverse, unsustainable and contrary to the

evidence on record and as such, the judgment and order, to the

extent that it acquits OA1 from all the offences be quashed and

set aside.

Submissions of Mr. Ponda, learned Senior Counsel for the

Respondent-Pradeep Sharma (OA1) in Criminal Appeal

No.854/2013 and Criminal Appeal No.350/2015:

424 Mr. Ponda, learned senior counsel for the respondent-

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Pradeep Sharma (OA1) opposed the appeal filed by the State as

well as by the complainant. He submitted that the scope of

interference in an appeal against acquittal is well settled by the

Apex Court and as such, bearing in mind the scope and the

findings recorded by the trial Judge, no interference was

warranted in the judgment and order acquitting the respondent of

all the offences with which he was charged. Mr. Ponda

submitted that as far as evidence of abduction is concerned, not a

single witness had witnessed the actual act of abduction and that

the witnesses have deposed on the basis of what was disclosed by

one Nilesh to Dheeraj (PW38). He submitted that the evidence

of Nilesh being hearsay and Nilesh not having been examined, the

said evidence becomes hearsay evidence and as such, inadmissible.

Mr. Ponda submitted that the telegrams relied upon by the

prosecution at the highest, can be used for corroboration and

cannot be treated as substantive piece of evidence, in the absence

of any witness stating that the deceased Ramnarayan and Anil

Bheda were abducted by some policemen. He submitted that

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since abduction has not been proved by the prosecution, the

telegrams cannot be relied upon for corroboration. It is

submitted that even the principle of res gestae would not come

into play in the peculiar facts of this case. Mr. Ponda further

submitted that disclosure made by Anil Bheda and PW40-Aruna

Bheda on 12th November 2006 with respect to abduction would

not come within the purview of the principle of res gestae. It is

submitted that what was disclosed by Anil Bheda to Aruna Bheda

(PW40) was objected to by the learned advocate for the

appellants/accused at the time of recording PW40's evidence,

however, despite the same, the learned Judge recorded the said

evidence, subject to objection, observing that the objection was

left open for consideration at the time of final arguments. Mr.

Ponda submitted that as far as the said objection is concerned,

admittedly Anil Bheda did not die during the alleged incident

alongwith the deceased and was alive on 12 th November 2006

and for a few years thereafter and therefore, obviously what

transpired on 11th November 2006 cannot be connected with his

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death and consequently, Section 32 of the Evidence Act will not

be attracted. He submitted that even the principle of res gestae

under Section 6 of the Evidence Act would not apply, having

regard to the fact, that the principle warranting the application of

the same, will not be attracted in the facts.

424.1 Mr. Ponda submitted that as far as CDR is concerned,

although it is alleged by the prosecution that Mobile No.

XXXXXX2987 standing in the name of A5, was being used by

the respondent (OA1), the prosecution has failed to prove the

same. Learned senior counsel assailed the evidence of PW62-

Rakeshchandra Prajapati, a Nodal Officer working with BPL

Mobile Communications Ltd. (also known as 'Loop Mobile

(India) Ltd.'), who has deposed with respect to the tower location

of the mobile allegedly used by OA1, although standing in the

name of A5. It is submitted that although, PW62's evidence

shows that on 11th November 2006, the aforesaid number was

used in the area i.e. Tower Nos. 17691 and 17692, that by itself,

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is not sufficient to show the complicity of the respondent (OA1).

He submitted that PW68-Geetanjali Datar, who was examined by

the prosecution to show that the aforesaid mobile number was

that of the respondent, has turned hostile and as such, her

evidence is not of any significance. He further submitted that

there is nothing to show that D.N. Nagar Police Station is in the

area of Esic Nagar and that there is nothing to show the exact

area covered by the Cell I.D having address of Esic Nagar i.e.

11891. He submitted that although four calls, out of which,

three calls were made by PW78-Bipin Bihari and one call from

the aforesaid number to Bipin Bihari, the prosecution has not led

any evidence to show that OA1 was at the area/location at the

given time, as the prosecution had failed to prove that the

aforesaid mobile was being used by the respondent (OA1) on 11th

November 2006. Mr. Ponda also assailed the evidence of

PW104-Anant Patil (hostile) and PW105-Sanjay Vanmane and as

such, submitted that even the said evidence of the aforesaid two

witnesses does not reveal that the respondent was using the

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aforesaid mobile at the relevant time.

424.2 Mr. Ponda further submitted that as far as the Ballistic

Expert's evidence is concerned, the said evidence suffers from

several infirmities. He submits that PW86-Gautam Ghadge

cannot be termed as a Ballistic Expert, in terms of Section 45 of

the Evidence Act, considering what has been disclosed by the said

witness in his cross-examination. He submitted that there are

several discrepancies that have come on record in the cross-

examination of this expert witness, which discrepancies have

remained unexplained and as such, implicit reliance cannot be

placed on his evidence. Mr. Ponda further submitted that as

regards the alleged firing of a bullet from the respondent's

weapon is concerned i.e. Exh. 18-B (fired bullet), it is the

prosecution case that it was fired from the revolver issued to the

respondent (OA1) and in order to prove the same, the

prosecution relied on Exh. 9 (Test Bullets), which were

admittedly fired from respondent's revolver (Exh. 8) and on

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photograph, in juxtaposition showing Exh. 9 (test bullets) and

Exh. 18-B (fired bullet). He submitted that the cross-examination

of PW86 would reveal several discrepancies with respect to the

striations, grooves, that had come on record. According to Mr.

Ponda, having regard to the discrepancies in the evidence of

PW86, it is abundantly clear that the striations, which were found

on Exh. 8 (test) did not tally with the striations found on Exh.

18-B (bullet) and if the same is borne in mind, the only

conclusion that can be arrived at, is that Exh. 18-B (bullet) was

not fired from revolver (Exh. 8). He submitted that the

prosecution has not explained why only respondent's weapon was

sent to the Ballistic Expert for examination and why weapons of

A3 and A7 were not taken charge of and sent to the Ballistic

Expert. He submitted that the weapon of A7 was not sent for

ballistic examination since he was not a member of the raiding

party and hence, by that logic, the same would hold good even

vis-a-vis respondent (OA1), since even in the FIR lodged by A9,

the respondent (OA1) is not stated to be a member of the said

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raiding party.

424.3 As far as formation of squad is concerned, Mr. Ponda

submitted that the prosecution has not brought on record cogent

evidence to show that A2, A3 and A7 were directed to work

under a squad and that the acts of A2, A3 and A7 can be

attributed to the respondent (OA1). He submitted that the

formation of squad at the instance of PW78-Bipin Bihari, under

OA1 has been categorically denied by the said witness. He

submitted that although there are some documents produced by

the prosecution to show that some of the accused were relieved

from their respective police stations and were sent on deputation

to D.N. Nagar Police Station, that by itself, would not show that

they were members of any such squad. He submitted that there is

no document produced by the prosecution to show that there was

a squad in existence. He submitted that infact, the evidence of

PW78-Bipin Bihari, would reveal that squads were banned by the

order of CP and as such, prosecution had failed to prove the

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formation of squad under the respondent (OA1).

424.4 Mr. Ponda submitted that as far as the allegation by

the prosecution that the respondent had called Mr. Anant Patil

(PW104) to the police station, the same has not been proved

beyond reasonable doubt, inasmuch as, the respondent was on

leave on 12th November 2006 and as such, was not present in

D.N. Nagar Police Station. He submitted that the evidence of

PW104-Anant Patil, wherein he has stated that when he visited

D.N. Nagar Police Station, he was informed that OA1 was on a

weekly-off, will have to be accepted. He submitted that having

regard to the said evidence, the prosecution, in absence of any

other evidence, cannot rely on the CDR of the respondent (OA1)

and PW104-Anant Patil to show their locations at D.N. Nagar

Police Station on 12th November 2006. According to Mr. Ponda,

the respondent (OA1) has been falsely implicated at the behest of

some senior Police Officers.

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424.5 Mr. Ponda, thus submitted that no ground is made

out by the State and the complainant, warranting interference in

the judgment and order, insofar as, it acquits the respondent

(OA1).

B. Scope of Acquittal

425 We are conscious of the fact that the aforesaid appeals

have been filed by the State of Maharashtra and by the

complainant (brother of the deceased), and the scope for

interference by the appellate Court when an accused has been

acquitted by the trial Court. Thus, before we proceed to consider

the submissions advanced by the learned counsel for the

respective parties and the evidence on record adduced by the

prosecution, it would be apposite to consider the law as to when

an order of acquittal can be interfered with. Of course, the law

with regard to the scope of interference by the Appellate Court in

an appeal against acquittal, is no longer res integra.

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426 In Sheo Swarup v. King Emperor44, one of the earliest

case dealing with the scope of the Appellate Court against an

order of acquittal, the Privy Council held as under on page 404:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."

427 The Supreme Court in M.G.Agarwal v. State of

Maharashtra45, in paras 16 and 17 has observed as under:

"16. Section 423(1) prescribes the powers of the appellate court in disposing of appeals preferred before it and clauses (a)

44 1934 SCC OnLine PC 42 45 AIR 1963 SC 200

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and (b) deal with appeals against acquittals and appeals against convictions respectively. There is no doubt that the power conferred by clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by clause

(b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial court and so, the fact that the accused person is entitled for the benefit of a reasonable doubts will always be present in the mind of the High Court when its deals with the merits of the case. As an appellate court the High Court is generally slow in disturbing the finding of fact recorded by the trial court particularly when the said finding is based on an appreciation of oral evidence because the trial court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence. Sometimes, the width of the power is emphasised, while on other occasions, the necessity to adopt a cautious approach in dealing with appeals against acquittals is emphasised, and the emphasis is expressed in different words or phrases used from time to time. But the true legal position is that however circumspect and cautious the approach of the High Court may be in dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecution in respect of the guilt or innocence of the accused.

This position has been clarified by the Privy Council in Sheo

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Swarup v. King Emperor 61 IA 398 and Nur Mohammad v. Emperor AIR 1945 PC 151.

17. In some of the earlier decisions of this Court, however, in emphasising the importance of adopting a cautious approach in dealing with appeals against acquittals, it was observed that the presumption of innocence is reinforced by the order of acquittal and so, "the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons" : vide Surajpal Singh v. State 1952 SCR 193 at p.

201. Similarly in Ajmer Singh v. State Of Punjab 1953 SCR 418 it was observed that the interference of the High Court in an appeal against the order of acquittal would be justified only if there are "very substantial and compelling reasons to do so". In some other decisions, it has been stated that an order of acquittal can be reversed only for "good and sufficiently cogent reasons" or for "strong reasons". In appreciating the effect of these observations, it must be remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended, and should not be read to have intended to introduce an additional condition in clause (a) of Section 423(1) of the Code. All that the said observations are intended to emphasise is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in the case of Sheo Swarup, the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial". Therefore, the test suggested by the expression "substantial and compelling reasons" should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan AIR 1961 SC 715 and Harbans Singh v. State of Punjab AIR 1962 SC 439 and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse. Therefore, the question which

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we have to ask ourselves in the present appeals is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt, and that the contrary view taken by the trial court was erroneous. In answering this question, we would, no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court. But under Article 136 we would ordinarily be reluctant to interfere with the findings of fact recorded by the High Court particularly where the said findings are based on appreciation of oral evidence." 428 In Chandrappa v. State of Karnataka45, the Apex

Court reiterated the legal position as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions",

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"glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

429 In Ghurey Lal v. State of U.P.46, the Apex Court after

reviewing the previous decisions, laid down the correct approach

that an Appellate Court should adopt in dealing with such cases.

Para 70 of the said judgment is as under:

46 (2008) 10 SCC 450

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"70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

(i) The trial court's conclusion with regard to the facts is palpably wrong;

(ii) The trial court's decision was based on an erroneous view of law;

(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trial court's judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

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(vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused."

(emphasis supplied)

430 In State of U.P. v. Banne47, the Supreme Court gave

certain illustrative circumstances in which the Court would be

justified in interfering with a judgment of acquittal by the High

Court. The circumstances set out in para 28 are reproduced

herein-under:

"28. Following are some of the circumstances in which perhaps this Court would be justified in interfering with the judgment of the High Court, but these are illustrative not exhaustive:

(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

47 (2009) 4 SCC 271

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(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal."

(emphasis supplied)

431 Similarly in Sidhartha Vashisht alias Manu Sharma v.

State (NCT of Delhi)46, the Apex Court in para 27 has laid down

the principles to be borne in mind by the Appellate Court while

dealing with appeals, in particular, against the orders of acquittal.

Para 27 reads thus:

"27. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly against an order of acquittal:

(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded.

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(iii) The appellate court can also review the trial court's conclusion with respect to both facts and law.

(iv) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.

(v) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.

(vii) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed." (emphasis supplied)

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431.1 In para 303(1), the Apex Court has held that the

Appellate Court has all necessary powers to re-evaluate the

evidence laid before the trial Court as well as the conclusions

reached and that it has a duty to specify the compelling and

substantial reasons in case which reverses the order of acquittal

passed by the trial Court. The reasons or reversal have to be

cogent and adequate.

432 Similarly, in Babu v. State of Kerala48, the Apex Court

in para 20 and 21 has held as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons

48 (2010) 9 Supreme Court Cases 189

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[1992 Supp (2) SCC 312] , Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] , Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] , Aruvelu [(2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 :

(2010) 1 SCC (Cri) 372] )

21. In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] this Court held that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."

433 Thus, the law on the issue i.e. scope for interference

in an appeal against acquittal can very broadly be summarized as

follows; that in exceptional cases where there are compelling and

substantial reasons; and where the judgment under appeal is

found to be perverse, clearly unreasonable, manifestly erroneous,

contrary to the evidence on record, or contrary to law, and the

findings have been arrived at, by ignoring or excluding relevant

material or by taking into consideration irrelevant/inadmissible

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material or is `against the weight of evidence' or if the finding so

outrageously defies logic as to suffer from the vice of irrationality,

the Appellate Court can interfere with the order of acquittal.

However, whilst doing so, the Court has to bear in mind the

presumption of innocence of the accused and further that the trial

Court's acquittal bolsters the presumption of his innocence; that

interference in a routine manner, only because another view is

possible should be avoided.

434 Infact, while dealing with the judgment of acquittal,

the Appellate Court has to consider the entire evidence on record,

so as to arrive at a finding as to whether the view of the trial

Court was perverse or otherwise unsustainable, warranting

interference.

C. Analysis of the Evidence on record

435 Considering that the respondent-Pradeep Sharma

(OA1) has been acquitted of the offences (Refer Para 3 of this

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judgment), we have perused the reasons of the learned trial Judge

and the grounds on which he was acquitted. The said grounds

are:

(i) that there is not even an iota of evidence against OA1 for

killing the deceased (para 1504 of the trial Court Judgment);

(ii) that there is no direct or circumstantial evidence against

OA1 (para 1478 of the trial Court Judgment);

(iii) that OA1 cannot be implicated only on the basis of ballistic

evidence, which is a weak piece of evidence (para 1478 of the

trial Court Judgment);

(iv) that none of the witnesses have attributed any role to OA1

(para 1477 of the trial Court Judgment); and;

(v) that the statements that OA1 was head of the squad have no

force (para 1477 of the trial Court Judgment).

436 According to Mr. Chavan, learned Spl. P.P and Dr.

Yug Chaudhry, the findings recorded by the learned Judge are

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one line findings and that the same are contrary to the findings

recorded by him, whilst convicting the other appellants/accused.

437 It is pertinent to note that although the learned Judge

has recorded a finding, that A7 and others had abducted

Ramnarayan and that Ramnarayan and Anil Bheda were abducted

together and that Anil Bheda was seen on the next day in the

custody of the police officers (who were members of OA1's

squad); has held that no squad existed under OA1, after placing

reliance only on the sole testimony of PW78-Bipin Bihari, Addl.

CP, West Region, Mumbai. It is also pertinent to note that the

trial Court rejected the genuine encounter theory propagated by

the accused and recorded a finding that there is ample evidence of

abduction of Ramnarayan and Anil Bheda, that they were taken

to D.N. Nagar Police Station and from there, Ramnarayan was

taken to Nana Nani Park, where allegedly an encounter took

place. The learned Judge also relied on the CDR evidence to

convict all the other accused, however, failed to consider the

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evidence on record qua OA1. Learned Spl. PP and Dr. Chaudhry

submitted that the perversity in the finding is also on the

erroneous finding of law i.e. the ballistic report was a weak type

of evidence. According to Dr. Chaudhry and Mr. Chavan, having

regard to the evidence on record, no reasonable person could

have reached such a conclusion, unsubstantiated by findings of

fact, as arrived at by the trial Court, whilst acquitting OA1.

438 We have already noted the evidence as has come on

record through the witnesses and have dealt with it, in great

detail, whilst considering the evidence qua the accused herein-

above and as such, do not intend to repeat the said evidence.

439 As far as OA1 being the head of the squad of police

personnel comprising A2, A3, A7, A15, A13 and A16 and others

is concerned, we have already dealt with the said evidence in

paras 33 to 61 herein-above, wherein we have discussed the

entire evidence adduced by the prosecution to show the existence

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of a squad under OA1 and of deputation of A7, A15, A2 and A3

to D.N. Nagar Police Station; and office order stating A13 is

working under OA1 and A9. It is also brought on record, that

A11, A17 and A19 were sent from Versova Police Station to D.N.

Nagar Police Station, on 11th November 2006 for confidential

work. Despite there being overwhelming evidence of witnesses,

the learned Judge has rejected that OA1 was the head of the

squad, only because PW78-Bipin Bihari, Addl. C.P, a lone witness,

denied the same in his cross-examination, as according to PW78,

formation of squad was illegal and was banned by the then CP.

No doubt, formation of squad was illegal, however, the fact

remains and as deposed to by several witnesses, there was a squad

in existence, albeit illegal and that several officers/police

personnel were deputed to work under the said squad, headed by

OA1. We have, in great detail, discussed how some of the police

personnel were sent on deputation/otherwise, for working in the

squad of OA1. Infact, the evidence of some of the witnesses has

gone unchallenged with respect to formation of squad and OA1

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being the head of the squad. Thus, for the reasons set out in

detail herein-above, we find that the prosecution has, by cogent

and legal evidence of witnesses proved the existence of a squad

and as such, do not wish to repeat the same. Thus, the finding

recorded by the trial Court, relying solely on the evidence of

PW78, as deposed to, in the cross-examination, is perverse. The

learned Judge has not considered the overwhelming evidence of

all other witnesses vis-a-vis existence of a squad under OA1.

440 We have also recorded a finding that Anil Bheda and

Ramnarayan were abducted together on 11 th November 2006 by

some of the appellants/accused at 12:35-12:38 hrs. We have

discussed in detail, the evidence with respect to abduction, which

stands duly corroborated by sending of fax messages and

telegrams to various authorities. The CDRs of the

appellants/accused, has also been relied upon by the prosecution,

to corroborate the same.

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441 It is the prosecution case that OA1 was using mobile

No. XXXXXX2987, though registered in the name of A5. It is

not in dispute that the SDR (Exh. 533) shows that the said mobile

number was registered in the name of A5. A5 is a civilian, who

according to several of the prosecution witnesses, would sit

outside the office of OA1 and was working for OA1. The same

has been deposed to by PW43 and PW55. The location of the

said CDR (standing in the name of A5 and used by OA1) is shown

at D.N. Nagar Police Station, when the call was made by A7 to

OA1 at 12:39 hrs. (Exh. 543). The other evidence which will

show that the said number was used by OA1, is the evidence of

PW78-Bipin Bihari, Addl. C.P, West Region. The said witness has

categorically deposed that he did not know A5 nor had A5 ever

spoken to him, however, the CDR of PW78 would show that

there were several calls on the mobile number standing in A5's

name, but used by OA1. The relevant CDR with respect to the

same is at Exh. 543.

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442 In this context, it would be apposite to place on

record the number of calls exchanged between PW78-Addl. CP

Bipin Bihari and OA1 (on mobile number standing in the name of

A5).

10th November 2006 - 22:52 hrs (171 seconds call between

PW78 and OA1)

11th November 2006 - 9 calls between PW78 and OA1

(6 calls made by PW78 to OA1 and

3 calls made by OA1 to PW78)

1st call - at 12:56 (PW78 to OA1) - 19 seconds - location of OA1

at D.N. Nagar (abduction had taken place at around 12:35-call

between A7 to OA1 at 12:39.

2nd call - 14:34 hrs (PW78 to OA1) - 6 seconds - location of

OA1 at D.N. Nagar.

3rd call - 15:08:05 hrs (OA1 to PW78) - 21 seconds - location of

OA1 at D.N. Nagar.

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4th call - 16:27 hrs (OA1 to PW78) - 10 seconds - location of

OA1 at D.N. Nagar.

5th call - 19:04 hrs (PW78 to OA1) - 104 seconds - location of

OA1 at Juhu Circle.

6th call - 19:33 hrs (PW78 to OA1) - 13 seconds - location of

OA1 at D.N. Nagar.

7th call - 20:17 hrs (OA1 to PW78) - 11 seconds - location of

OA1 at Nana Nani Park.

8th call - 21:12 hrs (PW78 to OA1) - 1 second - location of OA1

at Seven Bungalows, Near Nana Nani Park.

9th call - 21:14 hrs (PW78 to OA1) - 134 seconds - location of

OA1 at Andheri (West).

12th November 2006 - 13:25 hrs (PW78 to OA1) - 31 seconds -

location of OA1 at D.N. Nagar (According to OA1 it was his

weekly off).

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13th November 2006 - 13:26 hrs (OA1 to PW78) - 241 seconds.

13:30 hrs (OA1 to PW78) - 50 seconds

443 The entire CDR of mobile number XXXXXX2987

used by OA1 (standing in the name of A5) shows the mobile

location on 11th November 2006 at 8:36 hrs at J.B. Nagar, where

OA1 resides and thereafter as stated aforesaid. It is also

pertinent to note that there are numerous calls exchanged

between PW78 and OA1 on 11th November 2006. Admittedly, as

is evident from the evidence of PW78, he did not know A5.

PW78 when confronted with the CDRs has denied of knowing

whose number it was i.e. mobile number - XXXXXX2987.

Obviously, the evidence of PW78 clearly shows that he was trying

to feign ignorance to protect OA1 or else he would have been in

trouble.

444 It is also pertinent to note that PW68-Geetanjali

Datar, Court Sheristedar, was examined by the prosecution to

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show that she was given a number by a constable and that she had

spoken to OA1 on the said number, which is XXXXXX2987.

Although PW68 has turned hostile, part of her evidence can be

relied upon, to the extent, that she admits knowing OA1, as he

was an I.O and whose case was in her Court in the month of

October/November 2006; that in November 2006, one constable

had given her mobile number of OA1; that she called OA1 on

11th November 2006 and on 15th November 2006 and had

spoken to the person using the said number on three occasions. It

is not the case of the defence, that PW68 knew A5 and had

spoken to him. It may be noted that on 15 th November 2006, at

around 21:24 hrs, OA1 spoke with PW68-Geetanjali Datar for 62

seconds, as is evident from the CDRs. This is the date when A5

was at Kolhapur i.e. when he had taken Anil Bheda, PW40 and

their son to Kolhapur. The said evidence of PW68 to that extent,

of calls made by her to OA1, is duly corroborated by the CDR,

which is at Exh. 543. It is also pertinent to note from the CDRs

produced and proved by the prosecution, that there are 175 to

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180 calls from J.B. Nagar area, late in the night and early in the

morning, where OA1 was residing and not a single call from

Santacruz, either late night or early morning, where A5 was

residing. Thus, we find from the evidence on record that OA1

was using mobile No. XXXXXX2987, though the same was

standing in A5's name. We have also discussed the circumstance

of `CDR' whilst dealing with the said circumstance, in great detail

and as such, do not wish to repeat the same.

445 It is also pertinent to note that there are calls between

A5 and OA1 (standing in A5's name) between 10th to 12th

November 2006, which is highly improbable. The following chart

clearly establishes that both the mobile numbers i.e. Mobile Nos.

XXXXXX1156 and XXXXXX2987 were registered in A5's

name, however both were used by A5 and OA1 respectively :

Sr. XXXXXX1156 used XXXXXX2987 used by by A5 (in his own OA1 (in A5's name) name) 1. On 10.11.2006 from On same day and during 19.12 to 21.43 same time OA1 is initially

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location of A5 is at at Vileparle and then at Esic Nagar i.e. D.N. Marine Lines. Nagar 2. On 11.11.2006 at Incoming call from 16.48 outgoing call to XXXXXX1156. XXXXXX2987 3. On 13.11.2006 at At this time OA1 is at 10.47 A5 is at Vileparle and before that at Santacruz. J.B. Nagar. 4. From 14.11.2006 to During this time OA1 is at 18.11.2006, A5 is at Mumbai and on Kolhapur with PW40 15.11.2006 at 21.24 Anil and Parth talked with PW68 for 62 (As is evident from seconds and also with the evidence of other witnesses. PW40-Aruna Bheda) 5. During 26.11.2006 to During this time, OA1 is at 30.11.2006, A5 is in Delhi from where he had Mumbai and there are contacted other accused calls on his other and witnesses in this case. mobile i.e. XXXXXX5118 from the PCO of PW40's father. 6. Exh.556 shows Cell This phone does not show ID 16961 near to a single call from any of house of A5. Cell ID these two cell IDs or any 17551 also shows call from Santacruz area area of Santacruz as i.e. near the residence of per Exh.548. This A5. phone shows 4 calls from cell ID 17551 on 10.11.2006, 11.11.2006 and 13.11.2006. 7. This phone does not This phone shows about show a single call 175 to 180 calls from JB from J.B. Nagar area Nagar area i.e. near the

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residence of OA1 (Cell IDs 10871, 10873, 13101, 13102, 13104, 13622 & 13623 Exh.548 & Exh.556).

8. PWs-68,75,78,104 Regular calls between all and 105 who did not these witnesses with OA1. know him had no talk with him on his two mobiles at any time 9. Has no reason to talk OA1 called PW78-Bipin to PW78, as PW78 Bihari at 20.17 hrs. from did not know him. Nana Nani Park. OA1 was a P.I working under him (Infact, the squad was formed by PW78 under OA1). 10 Has no reason to call To show encounter as alleged eye witness genuine, OA1 had every Ramrajpal Singh reason to introduce Ramrajpal Singh as an eye witness. 11. PW104 had no talks PW104 admitted talking on this phone, nor on this number with does PW104 know someone known to him. A5. He also admitted knowing OA1. 12. Regular contact OA1 was also in regular between A5 and other touch with other accused accused from this from this number. number.

446 It is also pertinent to note that from 14 th November

2006 to 18th November 2006, A5 was at Kolhapur with PW40-

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Aruna Bheda, Anil Bheda and Parth and that during this period,

this number i.e. XXXXXX2987 used by OA1 was operational in

Mumbai and there were a number of calls from J.B. Nagar and

D.N. Nagar Police Station area. Aruna Bheda has identified A5 as

being the person, who accompanied her, Anil Bheda and their son

to Kolhapur.

447 OA1 was using only one number. OA1 has not

brought on record that he was using any other number. The

aforesaid number i.e. XXXXXX2987 was being used by OA1 is

also evident from PW104-A.T. Patil's evidence, though PW104

has been declared hostile. It is relevant to note that there was a

call made by OA1 to PW104 (Exh. 403), at 13:19 hours on 12 th

November 2006, asking him to come to D.N. Nagar Police

Station. The same is corroborated by PW104, who has admitted

that he was knowing OA1. Whereas, there is nothing to show that

PW104 knew A5. There is evidence of PW40 to show that

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PW104 mediated for Anil Bheda's release and the same is

corroborated by CDR (Exh.403) of PW104 and it is further

corroborated by his 164 Cr.P.C statement (Exh.744) and the

evidence of PW40-Aruna Bheda. Cell ID 4593 shows that, PW-

104 had been to D.N Nagar Police Station at 15:00 hrs.

448 Although, PW104 was declared hostile, his evidence

to the extent that it supports the prosecution can be relied upon.

As is evident from the evidence of PW40, as PW104 mediated,

Anil Bheda was saved. The evidence of PW104 shows that he

knew Anil Bheda as well as OA1. The CDRs of PW104 and OA1

would also show that OA1 was using mobile number -

XXXXXX2987. In this context, it will be apposite to reproduce

the CDRs exchanged between PW104 and OA1 on 12th

November 2006 when PW104 visited D.N. Nagar Police Station

to meet OA1.

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12th November 2006

1st call - at 13:19 hrs (OA1 to PW104) - location of OA1 at D.N.

Nagar.

2nd call - at 13:57 hrs (OA1 to PW104) - location of OA1 at

D.N. Nagar.

3rd call - at 14:02 hrs (OA1 to PW104) - location of OA1 at

D.N. Nagar and PW104 at Ghatkopar.

4th call - at 14:22 hrs (OA1 to PW104) - location of OA1 at D.N.

Nagar and PW104 at Chembur.

5th call - at 18:01 hrs (OA1 to PW104) - location of both OA1

and PW104 at D.N. Nagar.

6th call - at 20:47 hrs (PW104 to OA1) - location of PW104 was

at Kurla i.e. at PW104's residence and OA1 at D.N. Nagar.

449 It is pertinent to note that around the same time Anil

Bheda was taken to Vashi Police Station by A2 and A3, where

Aruna Bheda withdrew the missing complaint lodged by her, as

Anil Bheda was brought to the Vashi Police Station. In this

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context the evidence of PW40 is relevant. She had deposed in

her evidence that Anil Bheda had disclosed to her when they

came out of the Vashi Police Station, that since Anant Patil

(PW104) mediated, his life was saved. It is also pertinent to note

that PW104 has admitted that his 164 statement was correctly

recorded. The statement of PW104 recorded under Section 164

shows that it was voluntarily recorded and that as Anil Bheda was

his friend he had mediated between OA1 and Anil Bheda.

450 It may also be noted that OA1 received a call from A7

at 12:39 hrs. i.e. one minute after the deceased was abducted

from Sector 9. The location of A7 as per the CDR, is at Sector 9

and that of OA1 at Esics Nagar i.e. D.N. Nagar Police Station. We

have discussed the CDR evidence in detail whilst dealing with the

circumstance of CDR. The CDR of A7 is at Exh. 409 and tower

location at Exh. 406 and the CDR of OA1 is at Exh. 543.

451 The other evidence which would point to the

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complicity of the respondent-OA1, is the evidence of PW32 and

PW55. The evidence of these two witnesses would reveal that on

12th November 2006, the said witnesses were taken in a green

Qualis vehicle used by OA1's squad to Bhatwadi, where Anil

Bheda was confined by A2 and A3, who were members of OA1's

squad. Since Anil Bheda and the deceased-Ramnarayan were

abducted together, we have recorded a finding that Anil Bheda

and Ramnarayan were abducted, whilst discussing the evidence of

`Abduction' herein-above. There is no manner of doubt that the

evidence on record, both documentary and oral, clearly reveals

that Ramnarayan and Anil Bheda were in the custody of the

accused and later, after Ramnarayan was shot in an alleged fake

encounter, Anil Bheda was confined by the accused in their

custody.

452 It is also pertinent to note that an FIR was lodged by

A9 that Ramnarayan died in an encounter at Nana Nani Park on

11th November 2006 at about 20:30 hrs. In the said C.R, apart

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from others, A2, A3, A9 and A15 have been named. The said

appellants/accused i.e. A2, A3, A9 and A15 have admitted their

presence at the time of the encounter, in which the deceased was

killed, however, they maintained that it was a genuine encounter.

We have set out the stand of each of the accused i.e. police in para

32 herein-above. Infact, almost all police personnel initially

supported C.R. No. 302/2006, but later, some back tracked

during trial and most of them, during the hearing of these

appeals.

453 We have already recorded a finding that the

encounter was not a genuine encounter and that after

Ramnarayan and Anil Bheda were abducted, throughout, the two

of them were in the custody of the police till they were taken to

D.N. Nagar Police Station and thereafter, Ramnarayan was shot.

From the evidence on record, it is crystal clear that a fake

encounter was given the colour of a genuine encounter. It is not

the case of the appellants/accused that although Ramnarayan was

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abducted, he escaped from their custody and thereafter, he was

done to death in a genuine encounter. It may be noted, that once

it is proved that Ramnarayan was abducted by the police, the

burden was on the appellants/accused to prove under 106 as to

what happened to him, which burden has not been discharged by

the appellants/accused. We have already noted that the

appellants/accused, to show that it was a genuine encounter, had

planted a revolver and train tickets on the deceased. As noted

earlier, the report of the fingerprint expert (Exh. 284) shows that

no fingerprints were found on the weapon allegedly used by the

deceased nor was anything found in the handwash, taken of the

deceased. The aforesaid report reads thus :

v-dz- riklysyh oLrw okijysys ek/;e feGkysys Bls 1- fjOgkyOgj (Made in ;qfuOglZy ikoMj ukgh-

Japan) 2- 6 chamber, ykdMh eqB vlysyk

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The english translation of the aforesaid report reads thus :

Sr. Verified item Used Source Fingerprints Found No. 1 Revolver (made in Japan) Universal Powder NO 2 6 chember, having wooden handle

454 It may be noted that it is the case of the

appellants/accused that Ramnarayan fired from a gun. If that is

so, the same would have left some discharge/residue. As noted

earlier, the handwritten notes of hand wash report (Exh. 673)

mentions "nothing of note in relevance to fired gunshot residues

were detected in turbid liquid (Exhibits 1 and 2)." We have

already recorded our findings with respect to planting of railway

tickets and weapon on the deceased person. As noted, PW11

examined the body and noted the contents of the clothes on the

body in the MLC Entry 22278 (Exh. 174A). There is no mention

of railway tickets nor there is any mention in Exh. 285 station

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diary entry of any railway tickets. The same has been deposed to

by PW11. He has stated that no railway tickets have been

mentioned in the station diary entry. Although, there is no

mention in the station diary entry of railway tickets, there is

mention of railway tickets in the muddemal register (Exh. 299A)

and this would certainly raise suspicion about finding of tickets

on the deceased, for the first time, though there is no such entry

in the station diary. This leads us to believe that the said tickets

were planted on the deceased, to show that it was a genuine

encounter and that he had travelled by train and come to the

spot, as alleged by A9 in his FIR. We may note that we have dealt

with the said evidence in detail, whilst dealing with the

circumstance of `Murder / custodial death / encounter and as

such, paras 132 to 214 can be referred to, to avoid duplication.

455 The other circumstance as against OA1, is the

unusually high number of calls exchanged between him and the

other members of the squad, before, and on the day when the

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deceased was killed and on the next day, OA1's CDR shows his

contact with the co-accused i.e:

(i) Calls between OA1 and A2 - 20 calls from 10.11.20006 to

12.11.2006;

(ii) Calls between OA1 and A4 - 8 calls from 10.11.20006 to

12.11.2006;

(iii) Calls between OA1 and A5 - 5 calls from 10.11.20006 to

12.11.2006;

(iv) Calls between OA1 and A6 - 7 calls from 10.11.20006 to

12.11.2006;

(v) Calls between OA1 and A7 - 7 calls from 10.11.20006 to

12.11.2006;

(vi) Calls between OA1 and A15 - 13 calls from

10.11.20006 to 12.11.2006.

456 It is also pertinent to note that as per the CDR, OA1's

presence is seen at Nana Nani Park on 11 th November 2006 at

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20:17 hrs, which is where the alleged encounter is stated to have

taken place.

457 As far as OA1's weapon is concerned, it is also

pertinent to note that a ruger revolver Butt No. 347 (Art.69) was

issued by Naigaon Armory to OA1, as his service weapon on 24th

December 2001; that on 31st August 2008, OA1 was dismissed

from service and was asked to surrender his service weapon; and

that accordingly he surrendered his weapon (Art.69) to Dharavi

Police Station on 1st September 2008. The said evidence has been

brought on record by the prosecution witnesses i.e. PW66, PW59

and PW56. The evidence of all the three witnesses would show

that there is an unbroken chain of documents, which would

reveal that the weapon throughout was with OA1 i.e. OA1 had

uninterrupted and exclusive custody of the weapon (Art.69) from

24th December 2001 till 1st September 2008.

458 PW86-Gautam Ghadge, Ballistic Expert has proved

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that the bullet Art.30.2 found in the deceased's body on 11 th

November 2006 was fired from OA1's service revolver i.e.

Art.69. The prosecution, in support thereof, relied on the

evidence of PW86, the ballistic expert and his hand notes and in

particular, Exhs.657-658.

459 Although Mr. Ponda, learned senior counsel for the

respondent vehemently submitted that the evidence of the

ballistic expert's report cannot be relied upon, as the basis on

which the report was arrived at, we do not find any substance in

the said submission. We find that the ballistic expert has carried

out the examination and has given detailed analysis of the

examination carried out by him, as a ballistic expert and has come

to the conclusion, after conducting various tests, that the bullet

found in the deceased's body was fired from OA1's service

revolver i.e. Art.69. The ballistic reports are at Exhs. 657-658. It

is also pertinent to note that as per PW86 and his hand notes, an

empty cartridge (Art.63) was submitted by the members of the

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encounter team to Versova Police Station, after the alleged

encounter of the deceased. The evidence of PW86 also shows

that the said empty bullet was fired from OA1's service revolver

(Art.69). Out of the three bullets retrieved, one bullet was fired

from OA1's weapon, one from A9's weapon and one from A15's

weapon. OA1 has disputed the finding recorded by the ballistic

expert. As far as A9 and A15 are concerned, although they have

not disputed firing at the deceased, inasmuch as, according to

them, it was a genuine encounter, they disputed the Ballistic

Expert's Report, however, they have not cross-examined PW86.

We have perused the explanation offered by OA1 to the question

put to him with respect to the ballistic report under Section 313.

OA1 has not offered any explanation to the same in his 313 as to

how the bullet Art.30/2 was fired from his service revolver (Art.

69), which was found in the deceased's body, nor has OA1 given

any explanation under Section 313 as to how an empty cartridge

i.e. Art.63 fired from his service revolver (Art. 69) was

surrendered by A22 after the alleged encounter. Once it is

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established that the bullet found in the deceased's body was fired

from the service revolver of OA1, the burden of providing an

explanation to this incriminating circumstance lies on OA1, and

as such, there is no explanation offered by OA1.

460 As far as OA1 is concerned, the ballistic evidence is

crucial and the same clinches the evidence qua the said accused,

apart from the other evidence.

461 In order to prove the movement of the weapon i.e.

there was an unbroken chain of movement of OA1's weapon, the

following dates are crucial:

461.1 The evidence on record shows that on 24th

December 2001, OA1 had handed over request letter dated 11 th

September 2001 (Exh.593A) signed by him, to the Naigaon

Armory, for issuance of a substitute weapon, as the fire-arm

issued to him earlier, had mal-functioned. Accordingly, OA1

deposited the mal-functioned weapon. PW66-Shabbir Sayyad,

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Head Constable was attached to the Magazine Section, Armory

Division, Naigaon. He has stated that a fire-arm was deposited

by OA1, as it was malfunctioning, pursuant to which, he gave

OA1 a 0.38 ruger revolver bearing serial No. 161-21934, Butt

No.347 (Art.69) and 30 rounds, against his signature (512A). The

said signature was taken in the Armory Weapon Register. The

said witness has stated that while issuing the said weapon i.e. Art.

69, OA1 signed at three places. It is pertinent to note that there is

no cross-examination on this aspect, nor has OA1 disputed his

signature either in the cross on the said document or under 313.

PW67-Manoj Desai was attached as PC to Magazine Section,

Armory Division, Naigaon at the relevant time. He has stated that

he had made an overleaf entry about handing over the revolver

and rounds to OA1 (Exh. 593A). The said witness has identified

the documents as well as the revolver handed over to OA1.

There are no suggestions either to PW60, PW66 or PW67 that

Exh. 512A or Exh.593A are forged entries. Infact, Exh.512A has

been brought on record in the cross-examination of PW60 by

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OA1. Even in his statement under Section 313, OA1 has not

denied the said entries, but has claimed ignorance about what

was stated by PW66 and PW67. It is pertinent to note that OA1

does not dispute his three signatures on the exhibit, made in

connection of the issuance of revolver i.e. (Exh. 593). It may be

noted that although OA1 has claimed ignorance of issuance of the

gun to him, he admits depositing of the very same revolver with

the Dharavi Police Station, after his dismissal. There is also no

suggestion to the witnesses that no gun (Art. 69) was issued to

him. Thus, having regard to the aforesaid, it is evident that the

prosecution has conclusively proved that the revolver (Art. 69)

was issued to OA1 and that he was using the same.

461.2 Art.18B is the bullet found in the deceased's

body, which is attributed to OA1's service revolver. A22

submitted an empty cartridge to the Police Station i.e. Art. 23,

which Article is linked to OA1's weapon (Art. 69). As noted

earlier, there is no suggestion nor has OA1 denied or disputed the

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receipt of the revolver (Art. 69) or the correctness of the entries

in the Exhibits and nor has he disputed his signature,

acknowledging receipt of the fire-arm. Thus, the issuance of

revolver (Art. 69) and rounds to OA1 has been conclusively

proved by the prosecution.

462 As far as murder of Ramnarayan is concerned, at

about 18:00 hrs on 11 th November 2006, PW22 issued a revolver

bearing Butt No. 468 (Art. 16) with 5 rounds, to A22. An entry

to that effect was made in the Weapon Movement Register (Exh.

217A); that A22 returned the said weapon and 4 rounds to PW23

on 12th November 2006, who made an entry to that effect in Exh.

222A. It is the prosecution case that 1 round was fired from

OA1's gun and not from A22's and for this, reliance is placed as

noted above, on the ballistic expert report and the evidence of

PW86.

463 On 12th November 2006, between 2:40 hrs. to 3:15

hrs. i.e. after the murder of the deceased, A22 handed over to

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PW39, a single empty cartridge (Art. 63), having description KF-

98-380-2 claiming that he fired it from his revolver i.e. Butt No.

468-Art.16, during the alleged encounter. A15 also produced a

single empty cartridge (Art. 60 having description KF-01-380-2),

claiming that he fired it from his revolver i.e. Butt No. 624. The

said empty cartridges were seized under a panchnama (Exh. 286)

before PW71-Dattatray Koyte, a panch witness and accordingly

entered in the station diary entry i.e. Exh. 287A as well as in the

Muddemal Register at Serial No. 149 (Exh. 300A).

464 It is pertinent to note that A15 and A22 declined to

cross-examine PW39 and PW71 and as such, they have not

challenged the surrender of the empty cartridge by them. In their

313 statements, with respect to Question No. 166, OA1, A15 and

A22 have answered as under:

Q.166 It has further come in his evidence that, accused API Sarvankar and API Palande came to police station. Accused API Sarvankar took out the empty shell from his revolver. So also, accused API Palande took out the empty shell from his revolver. The shell produced by accused Sarvankar had

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mark 'KF 98 380 2' and that of accused API Palande had mark 'KF 01 380 2'. Each of the shells were packed separately and labels were affixed. Accordingly, panchnama was prepared in presence of panchas vide Exh.286. What you have to say about it?

Accused 1: It is correct (vol 27) Accused 15: It is true (34) Accused 22: Yes (vol 42)

465 Thus, from the answers to the aforesaid questions put

under Section 313 Cr.P.C, it is evident that the said accused i.e.

OA1, A15 and A22 have admitted to the entries i.e. empty shells

being surrendered by A15 and A22.

466 On the very same day i.e. on 12th November 2006,

PW29-Dr. Gajanan Chavan, the Autopsy Surgeon, during the

post-mortem (Exh. 237) extracted three bullets i.e. Art. 30/1, Art.

30/2 and Art. 30/3 from the body of the deceased and handed the

said extracted three bullets to PW21 in a sealed condition, for

forwarding the same to the CA vide his letter dated 1 st November

2011 (Exh. 214). The evidence of PW21-Kailas Ekilwale, PC

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attached to Versova Police Station, shows that he collected three

bullets i.e. Articles 30/1, 30/2 and 30/3 and the letter (Exh. 240)

from PW29 and handed over the same, to PW39 in a sealed

condition.

467 It is pertinent to note that there are no suggestions to

the said witness i.e. PW29 and PW21 that the said Exh. 240 and

Exh. 237 were forged documents. Infact, Exh. 214 has been

brought on record, in the cross-examination of PW21.

468 It is pertinent to note that thereafter, PW39-

Mohandas Sankhe, on 13th November 2006, forwarded the

bullets and other seized articles to the CA for examination vide

forwarding letter (Exh. 292) i.e. 3 bullets, and forwarding letter

(Exh. 294) i.e. empty cartridges, etc. through PW53 and PW91.

There is a station diary entry to that effect i.e. Exh. 297. The said

articles were deposited by PW53 and PW91 with the CA in a

sealed condition on the very same day. Again, we may note that

S.Q. Pathan / N.S. Chitnis 837/867

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there are no suggestions in the cross-examination of the said

witness that, Exh. 292, Exh. 294 and Exh. 297 are forged

documents, either to PW39, PW53 or PW91. Infact, Exh. 297

was brought on record in the cross-examination of PW39. Exh.

297 is the station diary entry (No.25). Thereafter, PW86, the

ballistic expert handed over examination materials in a sealed

condition alongwith his reports (Exh. 251A, 253A and 254A) to

PW91 on 18th August 2007, who kept the said articles in safe

custody in the Versova Police Station. The relevant entries made

in the muddemal register with respect to the same are at Exhs.

298 and 299A. Infact, both the said exhibits were brought on

record in the cross-examination of PW39. Exhs. 298 and 299A

read thus :

eqn~nseky uksan ogh-

'kfuokj fnukad 11/11/2006 [kVyk tIrhpk ekyeRrk ¼tsFks foYgsokVh lac/kh 'ksjk dzekad fnukad ekyeRrk Bsoyh rs½ vfHk& j{kLFkku

1 2 3 4 5 6

S.Q. Pathan / N.S. Chitnis 838/867

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147 xqUgk uksan Bk.ks fjOgkyOgjP;k nksu lsQ Tkk-dz- 6523/06 fn- @06 dzekad nSuna huh firGh iqaxG;k 32/07 13/11/2006 vUo;s iks-fu- 302@06] uksan iqaxG;kP;k ekfxy lh-, djhrk ikBfoyk- la[ks dye dzekad cktwl KF-98-380- dyhuk ;sFkqu eqn~nes ky iks-f'k-307] 353] 41@06 2 vls fygysys vkgs- o vgoky vk.kyk dz- Hkknoh fnukad EX 298 A 27503 lg 11@11 dye @2006 3]25]27] Hkkgdk 148 xqUgk uksan Bk.ks jfookj fnukad lsQ Tkk-dz- 6523@06 fn- @06 dzekad nSuna huh 12@11@06 LVksvj 13@11@2006 vUo;s iks-fu- 302@06] uksan v½ ?kVukLFkGh feGwu lh-,-djhrk ikBfoyk- la[ks dye dzekd vkysY;k oLwrw iks-g- 307] 353] @06 [kkyhyizek.ks dz- Hkknoh fnukad 1½ ,d Made in 22308 lg @ @ Japan vls ,d dye eqn~nes k cktwl dksjysys fjoksOgj 3]25]27] yo 2½ fjOgkyOgj e/khy Hkkgdk vgoky nksu ftoar dkMrqls vk.kyk R;koj KF- 325 $ WL o rGkl gWej ekdZ vlysys 3½ fjOgkyOgj e/khy nksu fjdkes firGh iqxG;k R;kaP;k rGk'kh KF-325 $ WL vls ekfdZx vlwu rGk'kh tkod dzekad 157@09 gWej ekdZ vkgs- fn- 19@12@09 4½ ?kVukLFkGh iMysyh lnjpk eqn~nes ky ek- ,d fjdkeh firGh iksyhl mi vk;qDr fo- iqxGh R;koj KF-94 riklh iFkd ef/ky TMM-22 vls Jh- pkGds ;kaps ekfdZx EX 298 A rkC;kr fn- 19@12@09 jksth 5½ jDr Hkjysyh ,d ns.;kr vkyk- ckVyh- Bk.ks nSufnuh dzekad Bk.ks 6½ ekrh feJhr jDr 20@09 nSufa nuh vlysyh ,d ckVyh dz- 7½ ekrh Hkjysyh ,d lnjpk eqn~nes ky tk-

S.Q. Pathan / N.S. Chitnis 839/867

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fn- ckVyh d- 8193@olZsok@09 11@11 c ½ bDosLV fn-19/12/09 vUo;s @06 iapukE;ke/;s rkC;kr ek- iksyhl mi vk;qDr ?ksrysY;k oLrw fo- riklh iFkd ef/ky [kkyhyizek.ks Jh- pkGds ;kaps rkC;kr ns.;kr vkyk- 1½ LVsªpjojhy jDr Hkjysyh ckVyh- 2½ LVsªpjojhy jDr Hkjysyh nqljh ckVyh 3½ djM;k jaxkpk Qqy 'kVZ 4½ djM;k jaxkph Qqy EX iWUV 299 5½ lQsn lWMkss cfu;ku A 6½ fuGlj jaxkPkk tWaxk 7½ czkmu jaxkPkh cqV tksM 8½ czkmu jaxkph ilZ R;ke/;s 100: 9 uksVk] 10 :- ,d uksV] 5 :- ,d dkWbZu] 2 :- ps nksu dkWbZu] 25 iS'kph lkr uk.kh] ,dw.k 919 ,d VsyhQksu Mk;jh] nksu jsYos frdhV 9½ olksZok ou eksckbZy e/;s lkMysys jDr Hkjysyh ckVyh- 149 xqUgk uksan Bk.ks 1½ fjOgkyOgjph firGh lsQ Tkk-dz- 6523@06 fn- @06 dzekad nSufa nuh iaqxGh iqXkGhP;k ekfxy 32@07 13@11@2006 vUo;s iks-fu- 302@06] dz- cktwl KF- 98- 380 -2 EX lh-,-djhrk ikBfoyk- la[ks dye 2@06 vls fygysys- 300 A 307] 353] 1½ fjOgkyOgjph firGh EX Hkknoh iaqxGh iqXkGhP;k ekfxy 300 lg cktwl KF-1- 380 - A dye 2 vls fygysys 3]25]27]Hk eqn~nes ky o vgoky kjrh; vk.kyk gR;kj

S.Q. Pathan / N.S. Chitnis 840/867

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dk;nk

English translation of the relevant Muddemal Entries, reads thus :

MUDDEMAL REGISTER Saturday, date 11.11.2006

Case Date of Muddemal Place where Remarks Number Seizure Property the regarding muddemal disposal articles are kept for safe custody 1 2 3 4 5 6 147/06 Crime Reg. Station Two empty (kept in) the Sent for Police No. Diary Entry brass safe. C.A. under Inspect 302/2006, No. cartridges the letter or Under 41/2006, from a 32/07 bearing Sankhe, Sections dated revolver, Outward 307, 353 of 11.11.2006 having a mark No. Police the Indian viz. 6523/2006, Consta Penal Code (unintelligible) dated ble - read with 98 380.2, 13.11.2006 Buckle Sections 3, engraved at .

No. 25, 27 of the bottom 27503 the Indian thereof. Brought Arms Act the Exhibit 298-A Muddemal articles and

S.Q. Pathan / N.S. Chitnis 841/867

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Report from Kalina.

148/06 Crime Reg. Station Sunday, Date: (kept in) Sent for Police No. Diary Entry 12.11.2006. Safe Store C.A. under Inspect 302/2006, No. the letter or Under --/2006, (a) The articles bearing Sankhe, Sections dated -----. that are found Outward 307, 353 of at the place of No. Police the Indian Brought the the incident 6523/2006, Head Penal Code muddemal are as under: dated Consta read with articles and 1) One 13.11.2006 ble - Sections 3, the report. Revolver . Buckle 25, 27 of having No. the Indian engraved 22308 Arms Act 'Ducum Pad Shrachand' thereon on its one side. 2) Two live cartridges from revolver, having a mark viz. (unintelligible)

S.Q. Pathan / N.S. Chitnis 842/867

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325 + (unintelligible) thereon and a hammer mark at its bottom. 3) Two empty brass cartridges from Revolver, having a mark viz. (unintelligible) These 325 + muddemal (unintelligible) articles thereon and a have been hammer mark handed at its bottom. over in the 4) One empty possession brass cartridge of Shri having a mark Chalke viz. from the (unintelligible) Special 94 Investigatio (unintelligible) n Team of 22 thereon the Deputy

S.Q. Pathan / N.S. Chitnis 843/867

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found lying at Commissio the place of ner of the incident. Police on the date Exhibit 298-A 19.12.2009 5) One bottle , under the containing letter blood. bearing 6) One bottle Outward containing No. blood mixed 157/2009, EX. soil. dated 299 A 7) One bottle 19.12.2009 containing . soil. Station

B) Articles that Diary

are taken into Entry No.

possession 20/2009.

under Inquest panchnama, These

are as under: Muddemal

1) Bottle Articles

containing have been

sample of handed

blood spilled over in the possession

S.Q. Pathan / N.S. Chitnis 844/867

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on stretcher. of Shri 2) Another Chalke bottle from the containing Special sample of Investigatio blood spilled n Team of on stretcher. the Deputy 3) Gray Commissio coloured full ner of sleeves shirt Police 4) Gray under the coloured Full letter pant . bearing 5) White outward 'Sando' no. Banian. 6193/Verso 6) Bluish va/09, coloured dated underwear. 19.12.2009 7) A Pair of . brown coloured shoes 8) Brown coloured wallet containing 9

S.Q. Pathan / N.S. Chitnis 845/867

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currency notes of the denomination of Rs.100/- each, one currency note of the denomination of Rs.10/-, one coin of the denomination of Rs.5/-, two coins of the denomination of Rs.2/- each and seven coins of the denomination of paise 25 each, thus total amount of Rs.919, one telephone diary, two railway tickets.

S.Q. Pathan / N.S. Chitnis 846/867

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9) Bottle containing sample of blood spilled in Versova One Mobile van.

149/06 Crime Reg. Station 1) Brass (Kept in) Sent for P.I. No. 302/06, Diary Entry cartridge of Safe C.A. under Sankhe under No. 2/06 revolver, 32/07 the letter EX. sections having a mark Ex. 300 A bearing 300 A 307, 353 of viz. Outward the Indian (unintelligible) no. Penal Code 98. 380.2 on 6523/06 r/w sections the bottom dated 3, 25, 27 of thereof. 13.11.2006 the Indian 1) Brass . Arms Act. cartridge of revolver, having a mark viz. (unintelligible) 1- 380.2 on the bottom thereof.

S.Q. Pathan / N.S. Chitnis 847/867

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Muddemal and the Report have been brought.

469 On 30th August 2008, OA1 was dismissed from

service under Article 311. On 1 st September 2008, after OA1's

dismissal from service, PW59 (Admin PI, Dharavi Police Station)

vide letter dated 1st September 2008 (Exh. 480) asked OA1 to

deposit his service weapon and ammunition at Dharavi Police

Station; that OA1 deposited his arms and ammunition, including

the service revolver Butt No. 347 (Art. 69) and 6 rounds (Art.

115) at Dharavi Police Station on 1 st September 2008. The said

weapons and rounds were seized by PW59. Accordingly, station

diary entry which is at Exh. 477A was effected by PW59.

Thereafter, the arms and ammunition were handed over to PW56

for safe custody. PW56 kept the service revolver Butt No. 347

(Art. 69) and 6 rounds (Art. 115 colly) at Dharavi Police Station

in safe custody in the armory cupboard.

S.Q. Pathan / N.S. Chitnis 848/867

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470 It is evident from the cross-examination of PW56 that

OA1 has accepted handing over of the weapon at his residence

and not at Police Station. He, however, does not dispute

surrendering of his weapon and signing on the letter (Exh. 480).

The said Exh. 480 was produced by the prosecution at the

instance of OA1's lawyer during the cross-examination of PW56.

It was further suggested in the cross-examination to PW56 and

which was admitted by him that the said weapon was in the

custody of Dharavi Police Station from 1st September 2008 to 12th

December 2009. The same although referred in the cross-

examination of PW56, no question was asked or suggestion given

regarding the corrections made in Exh. 478A. Exh. 478A reads

thus :

fnukad 12@12@2009

cMrQZ iks-fu-Jh- iznhi jkes'oj 'kekZ@/kkjkoh iks-Bk.ks ;kaps ukokojhy -38 cksvj fjOgkWYoj :xj cVa dz 347@161&21934 QDr 'kL= iks- g- dz 990068

S.Q. Pathan / N.S. Chitnis 849/867

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izfo.k dklkoGsdj@/kkjkoh iks- Bk.ks ;kauh uk;xkao 'kkL=xkjkr tek dsys-

fnukad 12@12@2009 ueqn i=krhy tkod vkod izek.ks cMrQZ iks- fu Jh- iznhi 'kekZ /kkjkoh iks- Bk.ks ;kaps ukokoj vlysyh 9 m.m dkczh- e- xu cV dz- 600 lkscr 02 ux eWx>hu vkt jksth uk;xkao 'kkL=xkjkr iks- g- 990068@ izfo.k DklkoGsdj] /kkjkoh iks-Bk.ks ;kauh tek dsyh-

English translation of Exh. 478A reads thus :

Date : 12/12/2009

"P.H.C. B. No. 990068 / Pravin Kasavalekar, Dharavi Police Station deposited 38 Bore Revolver 'Ruger' Butt No. 347/161-21934 only, allotted to the suspended P. I. Shri Pradeep Rameshwar Sharma/Dharavi Police Station, in Naigaon Armoury."

Date : 12/12/2009

"As per the Inward Outward number in the mentioned letter, today, P.H.C. B. No. 990068/ Pravin Kasavalekar, Dharavi Police Station deposited Magazines - 2 numbers alongwith '9 m.m. 'Kabari' Machine Gun Butt No.600' allotted to the

S.Q. Pathan / N.S. Chitnis 850/867

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suspended P. I. Shri Pradeep Sharma/Dharavi Police Station, in Naigaon Armoury."

471 It is pertinent to note that under Section 313, while

answering Question 310, OA1 has admitted depositing of the

arms and ammunition in the Police Station on 1 st September

2008. No suggestions have been given to PW56 or PW59 that the

station diary entry with respect to the deposit of the gun (Exh.

477A) and Exh.480 and that the said documents are fabricated

and forged documents. Infact, Exh. 480 was brought on record

in the cross-examination of PW56. Infact, the trial Court has

recorded a finding that OA1 was possessing a service revolver

from 24th December 2001 till 1st September 2008.

472 On 20th August 2009, the present FIR i.e. C.R. No.

246/2009 was registered with the Versova Police Station as

against the appellants/accused and the respondent.

S.Q. Pathan / N.S. Chitnis 851/867

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473 On 4th December 2009, PW110-K.M.M. Prasanna,

Head of the SIT (I.O) requested Naigaon Armory vide letter Exh.

495 to provide OA1's service revolver Butt No. 347 (Art. 69) for

ballistic examination. A perusal of the cross-examination of

PW109 / PW110 would indicate that there are no suggestions

made to the said witness that Exh. 495 is a fabricated or a forged

document.

474 On 10th December 2009, PW98-Sandeep Dal, Sr. PI,

Naigaon Armory, sent a letter (Exh. 488) to Sr. PI, Dharavi Police

Station asking him to deposit OA1's service revolver, Butt No.

347 (Art. 69), as the same was requested by PW110 for ballistic

examination.

475 On 12th December 2009, PW59, in response to the

letter (Exh. 488) sent OA1's surrendered weapon i.e. ruger

service revolver Butt No. 347 (Art. 69) and 6 rounds of

ammunition with PW56 to Naigaon Armory vide covering letter

S.Q. Pathan / N.S. Chitnis 852/867

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(Exh. 478A) prepared by him. It is pertinent to note that there is

no suggestion to this witness that he did not send the ruger

revolver Butt No. 347 (Art. 69) to the Naigaon Armory.

476 On 17th December 2009, PW60-Maruti Patil attached

to the Magazine Section at Naigaon Armory Depot, handed over

revolver butt No. 347 (Art. 69) to PW109 under panchnama

(Exh.261) before PW34-panch witness, by making an overleaf

entry (Exh. 495) and also by making an entry in the Armory

Weapon Register (Exh. 511A). After seizure of the weapon,

PW107 and PW109 deposited the said weapon in the safe

custody of Versova Police Station Labelled (Art. 42) and seal (Art.

43). The same were identified by PW34 and PW109. There are

no suggestions with respect to the same in the cross of PW60 by

OA1. The relevant evidence in that context is of PW34, PW60,

PW107 and PW109.

477 PW110 vide letter dated 17th December 2009 (Exh.

717) addressed to PW99, requisitioned seized articles of C.R. No.

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302/2006, delivered by PW107 to PW99, Sr. PI, Versova Police

Station. The evidence of PW99 and PW110 with respect to the

same is as under:

478 PW99-Suresh Nalawade, Sr. PI, who was attached to

Versova Police Station, handed over 6 sealed packets of C.R.

No.302/2006 to PW107 on 19th December 2009 under a covering

letter (Exh. 718). Accordingly, entry was taken in the muddemal

register (Exh. 299A) as well as station diary entry was made (Exh.

751A). PW107 has deposed that he collected 13 sealed packets

seized by SIT during investigation and had kept the same in the

safe study of Versova Police Station. PW107 has further deposed

that he deposited 19 packets, which were in a sealed condition,

with FSL, Kalina vide forwarding letter (Exh. 656). The said 19

packets included 6 articles of C.R. No. 302/2006 and 13 articles

seized during the investigation of the present crime. According to

PW86, the ballistic expert, he opened the said sealed parcels and

verified that the contents were as per the forwarding letter (Exh.

656).

S.Q. Pathan / N.S. Chitnis 854/867

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479 It is pertinent to note that neither any suggestions

have been made to PW99 that he did not handover 6 sealed

packets of the case property to PW107 vide Exh. 718 nor any

suggestion has been made to PW107 that he did not handover the

articles mentioned in the forwarding letter (Exh. 656) or that he

made a false station diary entry (Exh. 751A) regarding ruger

revolver (Art. 69). No suggestion has been given to PW86 that

the ruger revolver butt No.347 (Art. 69) was not sent to him for

ballistic examination and that a Glock pistol was sent in its place.

Infact, PW107 has not been cross-examined on the point of

depositing 19 sealed packets with the FSL.

480 According to PW86-the ballistic expert, he completed

his report (Exh. 658) with respect to the seized articles

alongwith articles collected by PW108 vide letter (Exh. 659) on

2nd February 2010. He has stated that as per his analysis, Art. 63

was fired from ruger revolver Butt No.347 (Art. 69) and not from

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revolver Butt No. 468 (Art. 16); that Art. 60 was fired from Butt

No.624 (Art. 18) (A15's weapon) and Art. 46 colly. was fired

from Butt No. 475 (Art. 15) (A9's weapon). The ballistic report

shows that the three bullets which were retrieved from the

deceased's body were fired from the service weapon issued to

OA1, A9 and A15. The two empties were surrendered by A9,

which according to A9 were fired from his service weapon; and

one empty surrendered by A15 which was fired from his weapon.

The ballistic report would reveal that one empty surrendered by

A22 was fired from OA1's service revolver and one empty found

on the spot allegedly fired by A11 was infact fired from A2's

service weapon.

481 It is pertinent to note that PW86 was only cross-

examined by OA1 and A2 and that there is no cross-examination

or challenge by A9, A11, A15 and A22.

S.Q. Pathan / N.S. Chitnis 856/867

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482 PW86-the ballistic expert's report was challenged by

OA1 vis-a-vis, PW86's expertise and qualification. The evidence

of PW86 would reveal that he had 20 years of experience, having

joined in 1986 and that from 1990, he was in the Ballistic

Department. PW86 has, in detail, set out the procedure adopted

by him and how he reached the analysis, after conducting detailed

investigation /examination. The evidence of PW86 as well as his

report, inspires confidence and clearly shows his expertise in the

field. We may again note, that we have again in great detail

discussed the `Ballistic Evidence' circumstance in paras 186 to

245.

483 The aforesaid evidence clearly shows the movement

of weapons and is duly supported by documents, as stated

aforesaid. Thus, there is no reason to disbelieve the evidence of

PW86 that has come on record with respect to the ballistic report

(Exh. 658 Colly.).

S.Q. Pathan / N.S. Chitnis 857/867

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484 With respect to the ballistic evidence and the report,

it is pertinent to note that A11 had claimed that he fired, but the

empty surrendered by him in C.R. No.302/2006, was found to

have been fired from A2's service weapon. Similarly, the empty

shell surrendered by A22, after firing, was found to have been

fired from OA1's service weapon. The ballistic expert's report

also clearly shows that A9 and A15 had also fired from their

service weapons.

485 It is pertinent to note that the trial Court has believed,

accepted and relied upon the evidence of PW86 (Ballistic Expert)

and the Ballistic Report, whilst convicting other

appellants/accused i.e. A9, A2 and A15. It may also be noted that

though the trial Judge accepted the ballistic expert's report that

OA1 had fired A22's bullet from his (OA1's) service weapon at

Ramnarayan, yet he chose not to convict OA1, only on the basis

of the ballistic expert's evidence, after observing that ballistic

evidence by itself was a weak piece of evidence, in the absence of

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any corroboration to the same. We, whilst dealing with the

circumstance of ballistic evidence, have in detail considered the

law relating to the same and as such do not find it, to be a weak

piece of evidence.

486 Be that as it may, apart from the ballistic evidence,

there are other circumstances/evidence, which are clearly

overlooked by the trial Court i.e. there were accused deputed to

work under OA1; that there was a squad of OA1; that the

evidence on record shows that OA1 was using A5's mobile

number, which also shows OA1's presence at the Nana Nani Park;

and that OA1 was continuously in touch with the co-accused. In

addition to the aforesaid evidence, the disclosure made by Anil

Bheda to his wife PW40-Aruna Bheda is also relevant and a

circumstance qua OA1. We have in detail considered and held

that the disclosure made by Anil Bheda and PW40 as being

admissible under Section 6 - principle of res gestae in paras 112

to 129. It is pertinent to note that Anil Bheda had disclosed to

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his wife, PW40, that Ramnarayan and he were abducted by OA1's

men and taken to D.N. Nagar Police Station, where OA1 was

present, and that his life was saved because of the faxes and as

PW104 mediated.

487 In addition, there is evidence of witnesses with

respect to threats extended to them and to Anil Bheda, by family

members of the accused and lawyers who were appearing for the

accused, including lawyers appearing for OA1, at the relevant

time, to toe a particular line and to leave the City.

488 All the aforesaid circumstances, have been ignored

and clearly overlooked by the trial Court. In the facts, we hold

that the finding of acquittal recorded by the trial Court, is clearly

perverse and unsustainable, by ignoring or excluding relevant

material, despite there being overwhelming evidence pointing to

the complicity of OA1 in the crime, thereby warranting our

interference. We find the finding of the learned Judge to be

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perverse, inasmuch as, it is against the weight of evidence. We, in

the facts, find that it is not possible to take any other view than

the view taken by us, having regard to the overwhelming evidence

adduced by the prosecution.

489 Thus, the circumstances relied upon by the

prosecution even qua OA1 form a chain, which is so complete

and which unerringly points to the guilt of OA1 and excludes any

hypothesis consistent with the innocence of the OA1.

490 For the reasons aforesaid, the following order is

passed :

ORDER

(1) The judgment and order dated 12 th July 2013 passed

by the Ad-hoc Additional Sessions Judge, City Civil & Sessions

Court, Greater Bombay, in Sessions Case No. 317/2010, to the

S.Q. Pathan / N.S. Chitnis 861/867

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extent that it acquits OA1- Pradeep Sharma, is quashed and

set-aside and the respondent (OA1) in Criminal Appeal No.

854/2013 and Criminal Appeal No. 350/2015, is convicted

and sentenced as under :

- for the offence punishable under Sections 120B r/w 364 of the IPC, to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for a period of two years;

- for the offence punishable under Section 120B r/w 365 of the IPC, to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for a period of one year;

- for the offence punishable under Section 120B r/w 368 of the IPC, to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for a period of one year;

- for the offence punishable under Section 368 of the IPC, to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for a period of one year;

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- for the offence punishable under Section 120B r/w 302 of the IPC, to suffer imprisonment for life, and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for a period of three years;

- for the offence punishable under Section 364 r/w 109 r/w 120B of the IPC, to suffer imprisonment for life, and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for a period of two years;

- for the offence punishable under Section 365 r/w 109 r/w 120B of the IPC, to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for a period of one year;

- for the offence punishable under Section 344 r/w 34 of the IPC, to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for a period of three months;

- for the offence punishable under Section 302 r/w 34 of the IPC, to suffer imprisonment for life, and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for a period of three years;

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- for the offence punishable under Section 201 r/w 109 r/w 120B of the IPC, to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for a period of three months;

- for the offence punishable under Section 119 of the IPC, to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for a period of three months.

(2) All substantive sentences to run concurrently.

(3) OA1- Pradeep Sharma to surrender before the

appropriate Court, within three weeks from today.

491 We in the facts, do not think that it is necessary to

hear the respondent OA1 under Section 235(2) of Cr.P.C, since

the sentence awarded for the offence under Section 302 i.e. for

the principal offence, is imprisonment for life and life

imprisonment being the minimum sentence that can be awarded

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for the offence punishable under Section 302 r/w other sections

of the IPC. Rest of the sentences are to run concurrently with the

sentence awarded under Section 302 read with other sections of

the IPC.

492 Accordingly, both the appeals against acquittal of OA1

i.e. Criminal Appeal Nos. 854/2013 and 350/2015 are allowed.

VI. CRIMINAL REVISION APPLICATION NO. 182/2023 :

493 The aforesaid application has been filed by the

complainant (PW1)-brother of deceased-Ramnarayan, seeking

enhancement of the sentence awarded to the respondents therein

i.e. respondent Nos. 1 to 12, all police personnel i.e. for

enhancement of their sentences from life imprisonment to death.

494 The applicant, who appeared in-person did not press

the revision application, much less, argued the said application.

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495 In view of the same, nothing survives for

consideration in the said application. The same stands disposed

of, as not pressed.

496 Before parting with the judgment, we would like to

acknowledge the efforts taken by all the learned counsel

appearing for the appellants and Shri Palande (A15), who

appeared in-person, as well as Mr. Chavan, learned Special P.P. for

the State and Dr. Chaudhry for the complainant. We would also

like to place on record our special appreciation for the efforts

taken and the invaluable assistance rendered by Mr. Chavan,

learned Spl. PP and his team, in collating all the documents. It

was a mammoth task. 57 Volumes, 110 witnesses and paper

book running into 17064 pages. The hearing could not have

been completed without interruptions, but for the cooperation of

all the counsel appearing for the respective parties.

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496 All concerned to act on the authenticated copy of this

judgment.

GAURI GODSE, J. REVATI MOHITE DERE, J.

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