D 1 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Registered on : 17092008 Decided on : 06022013 Duration : 4Y 4M 20D
Exh No :
IN THE COURT OF SESSIONS AT NAGPUR ( Presided over by V. P. Ingle, Additional Sessions Judge )
1] Sessions Case No. 374 of 2008
The State of Maharashtra Through Police Station Officer,Police Station Lakadganj,Nagpur. ... Complainant
Versus
1] Rakesh @ Pappu S/o Rameshchandra Kushwaha, Aged about : 30 yearsR/o in rented house of Kamlaprasad Dubey, Mahendibagh, Nagpur.
2] Sunil Birchand Sharma, Aged about : 34 years,R/o House No.1132, Ashok Chowk, Ashoknagar, Gond Mohalla,Chamarnala Road, Nagpur.
3] Bachha @ Nanbabu S/o Bachanulal Mourya, Aged about : 30 YearsR/o Tah.Karvi, Dist. Chitrukut (U.P.).
4] Shambhu Sitaram Raikwad, Aged about : 33 years,R/o Village Karvi, Tah.Karvi, Dist.Chitrakut.
D 2 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
5] Ankit Rameshchandra Shukla, Aged about : 28 years,R/o Kanpur, Plot No. 6, Satyambihar Colony, Dist. Kanpur, P.S.Madiyavo.
6] Amit Hiralal Verma, Aged about : 28 years,R/o Behind P.W.D.,Office,Kalyan Sagar, Mahoba, Dist., Mahoba.
7] Yogendra Rajkumar Yadao, Aged about : 29 years,R/o S.D.M.Colony, Tahsil : Karabi,District : Chitrakut.
8] Chunubadh @ Pradhan Baburam Kumhar, Aged about : 47 yearsR/o Gaon Makrao (Nathkuva Basti). Taluka Moudhah Dist. Hamirpur (U. P.)
9] Omprakash Rajaram Gupta, Aged about : 26 years,R/o Sujata Nagar Mhada Quarter No.112, P.S.Panchpaoli, Nagpur.
10] Gourishankar Shamsunder Sahu,Aged about : 44 years,R/o Kolba Swami Nagar,Shahu Mohalla, Behind Shiv Temple, Binaki Mangalwari, Nagpur. ... Accused
D 3 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Registered on : 16022009 Decided on : 06022013 Duration : 3Y 1M 21D
2] Sessions Case No. 84 of 2009
The State of Maharashtra Through Police Station Officer,Police Station Lakadganj,Nagpur. ... Complainant
Versus
Chunubadh @ Pradhan Baburam Kumhar, Aged about : 47 years,R/o Gaon Makrao (Nathkuva Basti). Tal.MoudhahDist. Hamirpur (U. P.) ... Accused
OFFENCE PUNISHABLE UNDER SECTIONS 120B, 396, ALTERNATIVELY FOR SECTION 302, UNDER SECTION 395
READ WITH SECTION 397, 201 AND 202 OF INDIAN PENAL CODE AND SECTION 3/25 OF ARMS ACT.
Appearance : D. G. P. Asif Qureshi , with Shri
A. P. P. Narsapurkar, A. P. P. Mendhe, and A. P. P. Bhandekar, for the State. Adv. Tiwari , for Accused No. 1 Adv. Gadling, for Accused nos. 2 and 7. Adv. Bhangade, for Accused Nos. 3, 9 and 10. Adv. Jaltare, for Accused no. 4. Adv. Rizwi, for Accused Nos. 5 and 8 Adv. Gaikwad, for accused No. 6.
D 4 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
J U D G M E N T ( Delivered on this 6th day of February, 2013 )
Accused Nos. 1 to 8 are charged for the
commission of offence punishable under Sections 120B and
Section 396, alternatively for 302, under Section 395 read with
397 and 201 of Indian Penal Code and under Section 3/25 of
Arms Act. Accused Nos. 9 and 10 are charged for the offence
punishable under Sections 202 of Indian Penal Code and
Section 3/25 of Arms Act.
2] The case of the prosecution as unfolded from
first information report dated 08052008 is as under :
That on 08052008 at about 530 P. M. to
600 P. M., 5 persons of age group 25 to 30 years, entered in
the office of Suresh Lakhotia, Sushil Lakhotia and Shailesh
Lakhotia, situated at Flat No. 205, Gayatri Apartment, 2nd floor,
Ambedkar Chowk, Nagpur and on the point of knife and by
firing by country made revolvers, committed dacoity of cash and
attempted to snatch golden chain from the neck of of Suresh
Lakhotia and committed murder of Suresh Lakhotia and Sushil
Lakhotia and further caused grievous injury on the leg of
Shailesh Lakhotia, by means of bullet, by hatching criminal
conspiracy.
3] The wheel of the investigation rotated on the
basis of information received by P. W. 17 Kaushik Abaji Gosavi,
D 5 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
then Police Inspector of police station Lakadganj, Nagpur that
on 08052008 Lakhotia brothers were fired in their office at
Gayatrilok Apartment, Ambedkar Chowk, Nagpur .
On visiting spot of incidence, he found Suresh
Lakhotia and Sushil Lakhotia were dead hence, he shifted dead
bodies and injured Shailesh Lakhotia to Chandak Hospital,
Nagpur. He rushed to Chandak Hospital.
By that time, Ritesh Kothari was sent to police
station Lakadganj for lodging complaint. On the basis of
complaint dated 08052008 lodged by Ritesh Kothari in
Lakadganj Police Station vide Exh93, first information report
Exh94 came to be registered for the offence punishable under
Sections 394, 396, 397, 302, 201, 120b, and 202 of Indian
Penal Code and Section 3/25 of Arms Act against all accused
persons.
4] P. W. 19 Mahesh Sawai, Police Inspector of
Lakadganj Police Station, on receipt of information from Police
Inspector Gawai, went to Flat No. 205, Gayatri Apartment,
2nd floor, Ambedkar Chowk, Nagpur and collected information
about dacoity and murder from Ritesh Kothari and Ankit Goyal,
who were present on the spot. He prepared spot panchanama
vide Exh121 and seized empty cartridges, bag containing cash
, 2 Dupattas, 1 cap marked ' Gajju ' on it, bunch of hairs lying
on the spot, 1 live cartridges, some mobile phones out of which
D 6 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
some were not having SIM Card, blood stains, one blade of knife
and other articles total almost 51 in number, lying on the spot.
He also seized 1 bag of Rs. 2,85,350/ containing three blood
stained notes vide Exh124 from the house of Sandhya Mohta .
He also seized blood stained notes vide seizure panchanama
Exh124.
5] In Chandak Hospital, P. W. 17 Gosavi prepared
inquest panchanama on the body of Suresh Lakhotia vide
Exh185and inquest panchanma on the body of Sushil
Lakhotia vide Exh189 and forwarded dead bodies of Suresh
and Sushil Lakhotia, with requisition letters Exhs – 186 and 188
respectively.
a] Injured Shailesh Lakhotia was medically treated
in Dr. Chandak Hospital. Mr. Gosavi Investigating Officer also
seized the bullet recovered from the body of injured Shailesh
from Dr. Chandak , who operated him vide seizure memo of
Bullet Exh201. He also obtained certificate from Dr. Chandak
relating to receipt of Bullet recovered from body of injured
Shailesh vide Exh200 .
b] P. W. 19 Mahesh Sawai Investigating Officer,
further seized bags containing cash of Rs. 14,00,00 / and Rs.
19,90,000/ produced by Shyamsunder Lakhotia father of
deceased, in police station vide seizure panchanama Exh125.
D 7 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
c] P. W. 19 Mahesh Sawai, Investigating Officer
obtained CDRs of mobile phones, which were found on the spot
during investigation. During investigation, it was also revealed
to him that SIM card from mobile phone of Ritesh Kothari was
stolen, hence, its CDRs were obtained on 16052008 and it
revealed that his SIM card of Ritesh was activated from Tower
situated at Rani Durgawati Nagar, Nagpur, through mobile
phone of Rajaram Gupta i. e. father in law of accused no. 1
Rakesh Khushwaha. He also got obtained IME Number of said
mobile phone, which was disclosed as 354991002137830 vide
Exh280.
d] P. W. 19 Investigating Officer on obtaining
reports of CDRs from various mobile companies, as well as from
CDR of SIM CARD No. 9822832564 pertaining to Ritesh
Kothari, Rajaram Gupta,, he revealed location of accused in
Uttar Pradesh, hence, he forwarded investigating team to Uttar
Pradesh for search of culprits in the crime.
6] During further investigation, on 28052008
involvement of accused no. 2 Sunil Sharma was found in the
crime. He was arrested from Ashok Nagar, Nagpur vide arrest
panchanama Exh282 .
During personal search of accused no. 2 Sunil
Sharma, Investigating Officer seized his mobile Phone of
Vodafone Company having IME No. 357571011830006 vide
D 8 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
seizure memo Exh283. Investigating Officer also recorded
voluntary disclosure statement of accused no. 2 Sunil Sharma
on 28052008 and in pursuance to it, as led by the accused no.
2 Sunil, he recovered 1 bag from bed room of his house situated
at Ashok Nagar containing 3 country made revolver, 3
cartridges vide seizure panchanama Exh285 . On 30052008,
Investigating Officer seized One Hero honda passion
motorcycle bearing No. MH31AV4081 parked in Varanda of
his house and 1 mobile phone hidden in the tool box of said
motorcycle, vide Exh287.
During further investigation, a cap found on the
spot of incidence was shown to Omprakash Gupta and his wife
Harsha Gupta on 30052008, who identified the same as that of
accused no. 1 Rakesh Khushwaha. Thus, he prepared
identification panchanama of article vide Exh288 in presence of
panch witnesses and Omprakash Gupta and Harsha Gupta .
During interrogation of accused no. 2 Sunil Sharma,, names of
other accused were disclosed.
7] On the information given by secrete informer
and accused no. 2 on 28052008, Investigation team of
Maharashtra Police, along with Special Task Force of Uttar
Pradesh police, searched and traced out accused Nos. 1, 3, 4, 5,
6, 7 and 8 who were gathered at 'T' Point near pan shop
situated near IIM within the jurisdiction of Police Station
D 9 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Madiyav, District : Lucknow ( Uttar Pradesh ). They arrested
above accused persons on 28052008 and prepared arrest
form vide Exh 226 and obtained signature of above 6 accused
Nos. 1, 3, 4, 5, 6, and 7 and thumb impression of accused No. 8
Chunbadh . At the same time, during personal search of above
accused persons several mobile phones along with SIM cards
and cash amount were seized and sealed vide seizure
panchanama Exh225 prepared by Girijesh Tiwari and
signatures of 6 accused persons and thumb impression of
accused Chunbadh were obtained . The details of seized
muddemal from respective accused are as under :
P. W. 14 Devendra Dilawarsingh, Police Sub
Inspector, deposited muddemal seized at police station
Madiyav on taking necessary station diary entry at Exh50,
vide Exh227.
8] Thereafter, arrested accused persons were
brought to Nagpur on 30082005. After taking necessary
station diary entry at serial no. 50 in police station Lakadganj,
vide Exh289 by Police Sub Inspector Mudgal, on 30052008,
arrest forms of accused nos. 1, and 3 to 8 came to prepared in
Lakadganj Police Station vide Exhs290 to 296.
9] During the course of investigation, Police
Officers of Special Task Force along with Police Sub Inspector
Mudgal, had seized certain articles from the possession of the
D 10 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
accused at the time of their arrest at Madiyav. Police Sub
Inspector Mudgal, produced it before P. W. 19 Police Inspector
Mr. Sawai. P.W. 19 Mr. Sawai opened the seized articles
produced in 2 parcels by Police Sub Inspector Mudgal, of which
one parcel was containing 7 mobile phone sets along with SIM
as well as 2 separate SIM cards along with necessary labeling
of names of accused persons and 2nd parcel containing cash
amount seized from each of the accused during their personal
search by making necessary notes and its seizure panchanama
was prepared at fresh vide Exh 132 , bearing signature of
Police Inspector Shri Sawai, P. S. I. Mudgal and two panch
witnesses.
a] In pursuance to voluntary disclosure statement
of accused no. 6 Amit Varma, on 01062008, one Pistol kept
behind cluster of bricks on the terrace of house of fatherinlaw
of accused no. 1 Rakesh Khushwaha namely Rajaram Gupta,
situated at Sutaja Nagar, Nagpur, bearing letters " Made in
England ", having empty magazine, were also seized under
seizure panchanama Exh298. During preparation of Exh298,
half burnt cigarettes were found on the terrace of said house.
During inquiry with accused no. 6, it was informed that on prior
day of incidence i. e. on 752008 a conspiracy was hatched
on the terrace where accused had dinner and had smoked
these Cigarettes. These half burnt cigarettes were seized under
seizure panchanama Exh299, bearing signature of accused no.
D 11 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
6 Amit Varma .
b] On 01062008 itself in pursuance to voluntary
disclosure statement of accused no. 1 Rakesh @ Pappu
Khushwaha vide Exh300 showing his willingness to recover
Hearth in which he has burnt his blood stained clothes, clothes
of other accused and a SIM Card of Vodaphone Company. A
hearth was seized from house of his fatherinlaw Rajaram
Gupta vide seizure panchanama Exh301.
c] On 01062008, blood sample of accused no. 2
was collected and seized. On 02062008, blood samples and
hair samples of accused were collected and seized vide
Exhs134 to 139.
d] On 03062008, in pursuance to the voluntary
disclosure statement of accused no. 3 Nanbabu @ Baccha
Mourya Exh 145 one, white dupatta having blood stains kept
in one cupboard of the rented house of accused no. 1 owned
by Mr. Dubey was seized vide Exh146.
e] On 03062008, in pursuance to the voluntary
disclosure statement of accused no. 4 Shambhu vide Exh 143
one yellow colored dupatta having blood stains, which was kept
behind T. V. Set was seized from the rented house of accused
no. 1 under seizure panchanama Exh 144 . In pursuant to
voluntary disclosure statement of accused no. 4 Shambhu
recorded vide Exh141, one motorcycle Kinetic Challenger
D 12 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
bearing No. MH31AR9557 was recovered from rented house
of accused no. 1 which was situated at Merchandise, Nagpur
vide seizure panchanama Exh142. The said vehicle No.
MH31AR9557 was inspected and blood stains found on its
handle and seat cover were collected and seized under seizure
panchanama Exh142.
f] During house search of accused no. 1, on
03062008, one chit Exh157 having number of 7 mobile
phones was found which was seized vide seizure panchanama
Exh140.
g] On 05062008, in pursuance to voluntary
disclosure statement Ex148 made by accused no. 2 Sunil
Sharma , a motorbike Baja bursar bearing No. MH31BT6150
kept in Billiard Pool House situated at Ashok Chowk, Nagpur
was seized vide seizure panchanama Exh149.
h] On same day i. e. on 05062008, accused no. 9
Omprakash Gupta produced a chit ( Exh 158 ) having number
of one vehicle i. e. MH31CV2574 and one jeans pant of
accused no. 7. The said jeans pant and chit were seized under
seizure panchanama Exh147.
i] Accused no. 10 Cruikshank Shahu, on
05062008 produced in police station Lakadganj, one
motorcycle bearing No. MH31BY3725 a Hero Honda Sp
lender given by him to accused no. 2 in police station
D 13 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Lakadganj which was seized vide seizure panchanama
Exh156.
j] On 05062008, specimen of hand writing of
accused no. 1 was obtained vide Exh155 and it was seized
under panchanama Exh 154 .
k] On 05062008 itself, mobile phone having
Number 9822832564 of Motorola Company and another mobile
phone were seized from father in law of accused no. 1 namely
Rajaram Gupta vide seizure panchanama Exh302. On the same
day, one mobile phone from Gayatri wife of Rakesh having
number 9371527820 of Classic Company was seized vide
seizure panchanama Exh303.
l] On 06062008 in pursuance to voluntary
disclosure statement of accused no. 7 Yogendra Yadeo vide
Exh150, one unattended motorcycle was seized from Muslim
locality Mominpura. During inquiry, it revealed that said
unattended motorcycle was taken in custody by the officials of
Tahsil Police Station. Along with accused no. 7, Investigating
Officer went to Tahsil Police Station. Accused no. 7 identified
one motorcycle of malkhana of Tahsil Police Station bearing
No. 5 of 2008. Police Inspector Sawai inspected said vehicle
bearing No. MH31CB2574 and found blood stains from its
handle and seat cover. Blood was scraped. By issuing
requisition letter Exh304 to incharge police station Tahsil for
D 14 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
seeking custody, said vehicle was seized under seizure
panchanama Exh151.
m] On 07062008, blood samples of injured
Shailesh Lakhotia was collected from police constable Shri
Kunte vide seizure panchanama Exh305.
n] A inventory of various mobile numbers saved in
mobile book of mobile phone seized from accused were
prepared in presence of panchas vide Exh152 and its print
out running in 23 pages were obtained. On inquiry, it revealed
that Exh306 pertains to Ankit Shukla accused no. 5. Exh307
pertain to accused no. 4 Shambhu Raikwad, Exh308 pertains
to Chunbandh, Exh309 pertains to accused no. 3 Baccha @
Nanbabu, Exh310 pertain to fatherinlaw of accused no. 1
named Rakesh Gupta, Exh311 pertains to father in law of
accused no. 1 named Rajaram Gupta. Exh312 pertains to
Yogendra Yadeo accused no. 7. Exh313 pertains to SIM Card
No. 9935729761, Exh314 pertains to accused no. 6 Amit
Varma, Exh315 pertains to SIM Card No. 9370549568, Exh316
pertains to accused no. 1 Rakesh Khushwaha.
o] During investigation, it revealed that accused
no. 1 Rakesh Khushawaha was possessing mobile No.
9326893805. Inventory of mobile numbers saved in mobile
book of it was prepared in hand writing by official of Company
vide Exh316 .
D 15 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
p] On 07072008, Investigating Officer forwarded
requisition letter to B. S. N. L. vide Exh317, for obtaining CDRs
of mobile phones ( Mottorola ) of Rajaram Gupta seized vide
seizure panchanama Exh302. He received reply vide Exh318
on the same day . By using the said Code word " Star #06 #"
he retrieved IME Number of mobile phones seized from
Rajaram Gupta. He found IME number of blue colour mobile
phone of Motorola Company as 354991002137836 / 0 and
IME Number of other mobile phone of blue colour of Motorola
Company 350638207633507 by preparing panchanama
Exh153.
q] During investigation he obtained post mortem
report of deceased from Mayo Hospital, and also obtained
photographs snapped at the time of post mortem of Suresh
Lakhotia and that of Sunil Lakhotia vide Exh187 and Exh190
respectively along with 13 photos ( articles 1 to 13) . MLC
report of injured Shailesh Lakhotia was obtained vide Exh196.
10] On 12052008, he sent Viscera removed from
bodies of Suresh and Sushil Lakhotia to Forensic Science
Laboratory, Nagpur for analysis through Police Constable
Deviprasad, B. No. 1357 along with requisition letter for Sushil
Lakhotia vide Exh319 and for Suresh Lakhotia vide Exh321.
The invoice challans vide Exhs320 and 322 were also obtained
from police constable Deviprasad .
D 16 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
11] On the same day i. e. on 12052008, on written
suggestion forwarded vide Exh323 from C. A. office, Nagpur,
Investigating Officer deposited 68 muddemal articles to Forensic
Science Laboratory, Mumbai with a query report dated
12062008 through Police Sub Inspector Mudgal vide order
vide Exh324 along with necessary C. A. from Exh206.
After sorting out the necessary articles for
Ballistic examination, other articles were sent to Biological
Department of Forensic Science Laboratory, Mumbai.
On 25062008, Police Inspector Shri Gosavi
forwarded query report to Forensic Science Laboratory Mumbai
vide Exh260 and DNA report was obtained from Forensic
Science Laboratory , Mumbai vide Exh202 and report of
Ballistic Expert was obtained vide Exh207.
12] On 15052008, by issuing requisition letter
Exh 325 to the office of City Survey to prepare a map of spot
of incidence map came to be obtained.
By making station diary entry on 04062008
vide Exh326, Section 201 of Indian Penal Code came to be
added.
13] During further investigation, registration details
of motorcycle seized from the custody of police official of Tahsil
Police Station, got obtained, revealing Mubarak Khan, R/o.
Talegaon, District : Amarawati being owner of the said
D 17 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
motorcycle. Statement of the witnesses came to be recorded
through Special Judicial Magistrate, Nagpur.
a] A cheat seized from accused No. 9 Omprakash
Gupta along with specimen handwriting of accused no. 1 was
sent along with requisition letter dated 14062008 Exh328 to
hand writing expert and analysis report was obtained vide
Exh329 which revealed that “the red encircled writings marked
ExhsQ1 ( except overwriting ) is in the handwriting of the
person who wrote the writings marked Exhs S1 to S6 and N1.
b] By issuing direction vide Exh380, Police
Constable Pande was deputed to Uttar Pradesh to collect
necessary details of CDRs , ownerships of mobile phones and
SIM cards, seized from accused persons. Accordingly, police
constable Shri Pande went to Uttar Pradesh and submitted its
report vide Exh331, revealing that the mobile phones were
obtained by accused persons by supplying false addresses. It
also revealed that 1 mobile phone was shown to have been
purchased by supplying address of father of accused no. 6 Amit
Varma. CDRs and documents of ownership regarding mobile
phones possessed by accused persons were obtained vide
Exhs332, 235, 231, 216, 230, 232, 233, 234 that appears to be
of accused no. 6, accused no. 7, accused no. 6, accused no. 4,
accused no. 6, accused no. 3, accused no. 6 and accused no. 8
respectively. Summary of which was prepared vide Art14 .
D 18 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
c] Investigating Officer issued requisition letter to
Special Judicial Magistrate vide Exh241 for conduction of
identification parade of the accused persons .
d] After completing the formalities of issuance of
letters to Superintendent, Central Jail, Nagpur, vide letter
Exh 242 for arrangement of dummys' for identification of
accused and calling of witnesses for identification parade on
22062008, Special Judicial Magistrate in presence of panch
witnesses, conducted identification parade for suspects Sunil
Sharma Rakesh Khushwaha, Nandbabu @ Baccha, Ankit
Shukla, Amit Varma, Shambhu Raikwar, Yogendra Yadeo,
Chunbandh in Central Prison, Nagpur by calling witnesses . In
the identification parade, Ritesh Kothari, identified Nandbabu
Mourya, Ankit Shukla and Yogendra Yadeo. Witness Gopal
Sharma identified Nandbabu Mourya, Ankit Shukla and
Yogendra Yadeo. Witness Devesh Paliwal identified Nandbabu
Mourya, Ankit Shukla and Shambhu Raikwar whereas injured
witness Shailesh Lakhotia identified, Nandbabu Mourya, Amit
Varma, Ankit Shukla, Shambhu Raikwad, Yogendra Yadeo .
Special Judicial Magistrate submitted its report vide Exh253.
After holding identification parade of accused, statements of
witnesses came to be recorded by Investigating Officer
Shri Mahesh Sawai.
D 19 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
14] Investigating Officer Wasudeo Wandhare Police
Inspector, after taking charge of investigation of the matter
from Police Inspector Mr. Sawai, issued letter to Vodaphone
Celluler on 09082008 and sought clarification of digit “0” in
the last digit of IME Number of SIM 982332645. He also
prepared panchanama of phone book of mobile phone No.
9822352925 seized from accused no. 10 vide Exh347 showing
nexus of accused no. 10 with crime. Investigating Officer sent
letter to D. C. P. on obtaining permission vide Exh349 for filing
charge sheet under Section 3/25 of Arms Act from Shri Pande,
D. C. P. Zone III.
15] Police Inspector Wandhare of police station
Lakadganj submitted charge sheet against accused persons.
16] On the basis of complaint dated 08052008,
lodged by Ritesh Kothari in Lakadganj Police Station vide
Exh93 , first information report Exh94 came to be registered
for the offence punishable under Sections 394, 396, 397, 302,
201, 120b, 202 of Indian Penal Code and Section 3/23 of Arms
Act against all accused persons.
17] After due investigation of the matter,
investigation culminated in sending of chargesheet against
accused nos. 1 to 10 to the Court of Judicial Magistrate, First
Class, Nagpur. Accused No. 8 came to be discharged under
Section 169 of Criminal Procedure Code. On receipt of DNA
D 20 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Report disclosing involvement of accused no. 8 in the crime,
supplementary chargesheet came to be filed against accused
no. 8 vide S. T. No. 84 of 2009 . Both these cases, vide order
below Exh 1, dated 03082009 were clubbed together for trial.
18] Since the offence punishable under Sections
394, 396, 397, 302, 201, 120b, and 202 of Indian Penal Code
read with Section 3/25 of Arms Act are exclusively triable by
Court of Sessions, the learned Judicial Magistrate, First Class,
Nagpur, after compliance of provisions under Sections 207 and
208 of Criminal Procedure Code, committed the case to the
Court of sessions for trial against accused persons.
19] On receipt of chargesheet and after going
through it, my learned predecessor found that there is a prima
facie case against accused and as such charge was framed vide
Exh60 on 27082009 against accused and additional charge
under Section 3/25 of Arms Act was framed vide Exh60A. On
explaining charge in vernacular, the accused persons pleaded
not guilty and claimed to be tried.
20] In response to the notice under Section 294 of
Criminal Procedure Code, the defence has admitted genuineness
of the documents viz. Exh185 Inquest Panchanama dated
08052008, Exh186 Police Report to be forwarded to the
Civil surgeon with Dead body of Suresh Lakhotia, sent for
postmortem examination, Exh187, Postmortem Report of
D 21 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Suresh Lakhotia, Exh188 Police Report to be forwarded to the
Civil surgeon with Dead body of Sushil Lakhotia, Exh189
Inquest Panchanama prepared on Sushil Lakhotia, 190
Postmortem Report of Sushil Lakhotia, Exh279 Seizure
panchanama dated 09052008 of bullets recovered from body
of Sushil Lakhotia and Suresh Lakhotia .
21] To prove the guilt prosecution based its
claim on oral testimony of 23 witnesses and documentary
evidence.
22] The Statement of accused under Section
313 of Criminal Procedure Code were recorded to which
accused Nos. 1 to 10 denied incriminating evideence as came
on record.
23] Accused No. 1 examined his defence witness
Dhaniram and tried to prove his defence of alibi.
24] Heard Learned District Government
Pleader ofr State and learned Counsels Adv. Tiwari,
Adv. Gadling, Adv. Bhangade, Adv. Jaltare, Adv. Adv. Rizwy,
Adv. Gaikwad, for accused persons. I have also perused
written notes of arguments submitted by the State and accused
persons.
25] Considering the submissions made before
me and on perusal of the evidence on record, following points
arose for my determination.
D 22 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
S.N. Points Findings
1] Does prosecution prove that on 08052008 at about 500 to 530 P. M. at Gayatrilok Apartment, Ambedkar Chowk, Nagpur, in the office of Lakhotia Brothers, the Accused Nos. 1 to 8 committed dacoity as alleged ?
Yes, offence is proved against accused nos. 1 to 7 only.
2] Does prosecution prove that on the above date, time and place, accused nos. 1 to 8 committed dacoity and that in the commission of such dacoity, murder of Suresh Lakhotia and Sushil Lakhotia was committed in furtherance of their common intention by one of the member of unlawful assembly as alleged ?
Yes, Offence is proved against accused nos. 1 to 7 only.
3] Does prosecution prove that accused nos. 1 to 8 on the above date, time and place while committing dacoity used deadly weapons viz. Pistol, country made hand gun and caused grievous hurt to Shailesh Lakhotia as alleged ?
Yes, Offence is proved against accused nos. 1 to 7 only.
4] Does prosecution prove that accused nos. 1 to 8 on or about 07052008 at the house of Rajaram Gupta, Sujata Nagar, Nagpur agreed to do an illegal act or caused to be done an illegal act to commit offence of dacoity and same act of committing dacoity was done in pursuance of agreement and accused nos. 1 to 8 committed criminal conspiracy ?
Yes, Offence is proved against accused nos. 1 to 7 only.
D 23 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
5] Whether accused nos. 1 to 8 tried to screen the evidence connected with dacoity with murder of Sushil and Suresh Lakhotia by burning clothes and by changing the SIM card of mobile phone of complainant with intention to screen offenders from legal punishment ?
No
6] Whether accused nos. 9 and 10 knowingly that accused nos. 1 to 8 had committed an offence of dacoity with murder and also attempted to cause death and grievous hurt to Shailesh Lakhotia, intentionally omitted to give said information in respect of commission of offence to police, which you were illegally bound to give ?
Yes, offence is proved against accused no. 9 only.
7] Whether prosecution has proved that on the date of incident, accused nos. 1 to 10 were found carrying Pistol , country made hand gun, revolver in contravention of Section 3 of the Arms Act ?
Yes, offence is proved against accused nos. 2 and 6 only.
8] What Order ? As per final order
R E A S O N S
26] Accused Nos. 1 to 8 are charged and tried
for the commission of offence punishable under Sections 120B
and Section 396, alternatively for 302, under Section 395 read
with 397 and 201 of Indian Penal Code and under Section
3/25 of Arms Act. Accused Nos. 9 and 10 are charged for the
D 24 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
offence punishable under Sections 202 of Indian Penal Code
and Section 3/25 of Arms Act.
27] The prosecution's case can be summarized
as follows :
That on 08052008, at about 530 P. M.
five persons of age group 25 to 30 entered with fire arms and
deadly weapons in the office of Suresh Lakhotia, Shailesh
Lakhotia and Sushil Lakhotia situated at Flat No. 205,
Gayatrilok Apartment, Ambedkar Chowk, Nagpur. At the
relevant times, Lakhotia Brothers were carrying on business of
Hawala ( money transfer ).
On the point of knife, pistol and country
made handguns, assailants committed dacoity and committed
murder of Suresh Lakhotia, aged about 50 years and Sushil
Lakhotia, aged about 48 years and caused grievous hurt to
Shailesh Lakhotia and attempted to cause his death by firing
shots .
It is the case of the prosecution that
accused nos. 1 to 8 did said act in pursuance to conspiracy
( agreement ) and they further destroyed the blood stained
clothes and Sim cards with intention to screen the evidence and
accused nos. 9 and 10, in spite of knowledge of commission of
offence of dacoity, omitted to give the said information
regarding commission of offence to police .
D 25 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
28] Learned District Government Pleader Shri
Qureshi for the State submitted that gruesome murder of
Lakhotia Brothers in a preplanned dacoity committed in a
broad day light, in crowded commercial area of Central
Avenue, Nagpur has been proved by the prosecution through
cogent and reliable evidence.
a] Learned District Government Pleader
Shri Qureshi, for the State contended that the law of
appreciation of evidence in criminal trial has to be dovetail two
conflicting demands namely, on one hand, the fundamental
principle of criminal jurisprudence that the presumption of
innocence of the accused till he is found guilty and on the other
hand requirement of society for being shielded from the
hazards of being exposed to misadventures of person alleged
to have been committed a crime. The object of criminal trial is
to convict the guilty person when the guilt is established
beyond reasonable doubt.
b] Learned D. G. P. Shri Qureshi further
argued that the prosecution has established that accused
persons had hatched the conspiracy and shared common
intention. Accused persons had gathered at one spot. They had
prepared plan to commit dacoity in the office of Lakhotia
Brothers. The accused persons have acted upon said plan and
had procured weapons and other articles including motorcycles
D 26 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
and committed said act.
c] The prosecution further submits that the
accused persons procured deadly weapons and had all
intentions to use them. With this intention, they entered in the
office of Lakhotia Brothers with intention to commit dacoity.
d] The circumstances surfacing on record
have been proved to be cogent and consistent to ascertain the
guilt of accused . The totality of circumstances formed a chain
so complete that there is no scope for any other conclusion
except that crime is committed by accused nos. 1 to 10
conspiring with each other.
e] It is clear from oral and documentary
evidence on record in the nature of eye witness account as
well as analysis of the Chemical Analyzer , Handwriting Expert,
and DNA profiling. The accused persons are involved in the
commission of said offence.
f] It is proved that accused persons had
committed murder of 2 persons Suresh and Sushil and also
attempted to kill Shailesh Lakhotia. Said fact is proved from
the evidence of eye witnesses. There is absolutely no room
doubting said eye witnesses.
g] It is submitted that the prosecution has
established through Ballistic Expert's Report that the accused
persons had killed Suresh and Sushil Lakhotia by country
made hand guns which were carrying by them. Prosecution has
D 27 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
also proved seizure of said weapons from accused no. 2 Sunil
Sharma and accused no. 6 Amit Varma.
h] The witnesses as well as injured witness
Shailesh who has sustained bullet injury during the incidence
has categorically deposed before this Court about the manner in
which the accused persons have committed the dacoity and
also role played by the accused. Being injured eye witness,
there is absolutely no scope of doubting his presence on the
spot. Injuries on his person itself are guarantee of his
presence. To support the contention, learned D. G. P., relied
upon the ratio laid down in Abdul Sayeed Vs State of
Madhya Pradesh, reported in 2010 ALL MR ( Cri ) 3691
(SC) in which it is held that " special status be accorded to the
injured witness."
i] Learned D. G. P. further submitted that
during cross examination of these witnesses nothing
substantiates could be brought on record. Except minor
discrepancies which are immaterial . Learned D. G. P. relied
upon ratio laid down by Hon'ble Apex Court in a case of
Gurubachan Singh Vs Satpal Singh, reported in 1990 (1) S.
C. C. 445 wherein Hon'ble Apex Court held that "minor
contradictions in the statement of the prosecution witnesses, if
otherwise do not shake the prosecution case itself will not result
in its failure."
D 28 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
j] Ignoring the minor contradictions so far as
the substantial account of incident is concerned, all eye
witnesses have corroborated with each other in material
particular. The testimonies are consistent and trustworthy.
Eye witnesses have identified the accused persons during
identification parade, so also in the Court.
k] He further submitted that there is no
reasonable doubt cast upon the prosecution story on the basis
of evidence available on record. Minor discrepancies and
contradictions would not cast any doubt on the story of
prosecution, much less, any reasonable doubt. He further
submitted that on the basis of some unreasonable and remote
doubt, testimonies of prosecution witnesses cannot be
discarded, to give benefit of doubt to the accused persons. There
is circumstantial and direct evidence is available on record. He
lastly submitted that prosecution has proved beyond reasonable
doubt that all accused have played active role in the commission
of the crime . Hence, accused persons are liable to be convicted.
29] As to Point Nos. 1 to 4 : Since these points
are interlinked, they are discussed together as under :
In order to prove the guilt of accused persons,
the prosecution has examined in all 23 witnesses in support of
its case. The evidence of prosecution can be classified as
under :
D 29 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
1] Eye Witness Injured person :
P. W. 4 Shailesh Lakhotia (Exh 113)
2] Eye witness not injured :
a] P. W. 1 Ritesh Kothari (Exh 92)
b] P. W. 2 Gopal Sharma (Exh 99)
c] P. W. 3 Devesh Paliwal ( Exh 110)
3] Panch witnesses :
a] P. W. 5 Radheshyam Sarda (Exh 120)
b] P. W. 6 Chandrashekhar Kapse (Ex 130)
c] P. W. 7 Narayan Nanwatkar (Exh 162)
d] P. W. 8 Ravindra Bargad (Exh 171)
4] Medical Experts :
a] P. W. 9 Medical Officer Shri Shrigiriwar (Exh 184)
b] P. W. 10 Dr. Rajendra Chandak (Exh 195)
5] Other witnesses :
P. W. 11 Shilpa Nikose (Exh 203)
6] Ballistic Expert :
P. W. 12 Gautam Gadge (Exh 205)
D 30 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
7] Nodal Officers :
a] P. W. 13 Arunkumar Mishra vide Exh 214
b] P. W. 15 Kaushalendra Tiwari (Exh 228)
c] P. W. 18 Rajiv Sharma vide (Exh 269)
d] P. W. 20 Sachin Shinde vide (Exh 342)
8] Investigating Officer :
a] P. W. 14 Devesh Dilawar Singh (Exh 224)
b] P. W. 17 Kaushik Gosavi (Exh255)
c] P. W. 19 Mahesh Sawai. (Exh 278)
d] P. W. 21 Wasudeo Wandhare (Exh 346)
9] Witness on Identification Parade :
P. W. 16 Prakash Somkuwar, Spl. Judicial Magistrate (Exh 239)
10] Document Examiner :
P. W. 22 Dipak U. Pandit (Exh 354)
11] Chemical Analyzer :
P. W. 23 Shrikant Lade vide Exh 364
12] Defence Witness :
D. W. 1 Dhaniram S.Yadao (Exh 394)
Homicidal Death of Suresh Lakhotia and Sushil Lakhotia :
30] The factual matter of homicidal death of
Suresh Lakhotia and Sushil Lakhotia is not disputed . Defence
D 31 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
has admitted Postmortem Report of Suresh Lakhotia vide
Exh187 and Postmortem Report of Sushil Lakhotia vide
Exh190 as well as Inquest Panchanamas of Suresh Lakhotia
vide Exh185 and Sushil Lakhotia vide Exh189.
31] To prove homicidal death of Suresh Lakhotia
and Sushil Lakhotia, the prosecution's case is resting on the
version of eye witnesses, Inquest Panchanamas , Postmortem
Reports. Dr. Shrigiriwar has proved Postmortem Reports of
victim vide Exhs187 and 190.
Regarding homicidal death of Suresh Lakhotia :
32] P. W. 9. Dr. Shrigiriwar in his substantive
evidence deposed that on 09052008 he received requisition
letter ( ArtA ), inquest panchanama ( Exh185 ) and 16
columns form ( Exh186 ), from Lakadganj Police station, for
conducting post mortem on the dead body of Suresh Lakhotia,
which was brought by Police Constable Deviprasad, B. No. 1357
of P. St. Lakadganj, Nagpur.
33] He performed post mortem on the dead
body of Suresh Lakhotia and issued Postmortem report vide
Exh – 187. Medical Officer proved Postmortem report Exh187
by confirming its contents.
34] According to P. W. 9 Medical Officer on
external examination, he found injuries on the body of Suresh
Lakhotia, mentioned in column no. 17 of Postmortem report .
D 32 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Rifled fire arm injury
a] Entry wound present over right anterior aspect of axillary fold over front of Chest, situated 11 Cm from right acromion and 17.5 Cm. away from midline, elliptical in shape size 3 Cm X 1.5 Cm X cavity deep oblique, upper border bevelled. It is surrounded by multiple puncture wounds ( Tattooing ) present over anterior aspect of right arm, spread over the area of size 20 cms. X 11 cms. & over Chest on right side, involving right nipple and area lateral to it spread over the area of 23 cms. X 14 cms.
b] Track of wound :The wound present over anterior axillary fold, then
goes through 3rd right intercostal space, fracture of 4th right rib with inward inclination present. Then passing through the upper lower of right lung. Then, it enters the 4th thoracic vertebra from right lateral aspect, the size of wound at that place is 2 Cm X 2 Cm x Cavity deep. The bullet was found inside the spinal canal, vertical with tip of bullet upward;
c] Direction : From right to left, backward, medially downwards. Bullet : Length 3. 1 cms. The tip of bullet is flattened.
The age of above mentioned injuries is fresh / recent.
On internal examination, he found injuries on :
1] HEAD : Under scalp hematoma present over right parietal region of size 4 Cm X 4 Cm red in colour.
2] THORAX :
a] 4th Rib fractured, fractured ends inverted, corresponding to injury no. 1 of column no. 17.
b] Congested, A rent ( Hole ) pres injuries on ent corresponding to injury no. 1 of column no. 17 over the pleura. Plural cavity contains 1.5 ltrs of blood and blood clots.
c] Right Lung : 200 Gms Through and Through firearm wound on upper lobe directing backwards medially and downwards .
d] Left Lung : Intact & Congested;Spine and Spinal Cord :
35] He observed Spine fractured at the level 4th
thorasic vertebra. The corresponding spinal cord lacerated.
Infiltration of blood present in surrounding area corresponding
D 33 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
to injury no. 1 of column no. 17.
36] According to him all injuries were ante
mortem and in his opinion, they were sufficient to cause death
in natural circumstances. He opined the cause of death
is due to “ injury to vital organs due to firearm injury ”. It
confirmed homicidal death of Suresh Lakhotia.
Regarding Homicidal death of Sushil Lakhotia :
37] P. W. 9 Medical Officer Dr. Shrigiriwar also
deposed about performance of postmortem on the dead body
of Sushil Lakhotia on 09052008. He testified on receipt of
16 columns form ( Exh188 ) and inquest panchanama
( Exh189 ) he conducted Postmortem. By confirming its
contents, Medical Officer proved postmortem report of Sushil
Lakhotia vide Exh190.
38] Medical Officer found following injuries on
the body of Sushil Lakhotia as mentioned in column no. 17 of P.
M. Notes
1] [ a] Firearm bullet entry wound present over right side of neck 1 Cm below Ear, lobule, 12 Cm lateral to midlline, vertical oval 2.5 Cm X 1 Cm. Margins of the wound abraded , multiple superficial punctured wounds and tattooing, and abrasion collar present around the entry wound in the area spread over 3 cm above, 3 cm in front, 4 cm below and 5 cm behind the center of the wound.
[b] Track of bullet : from the entry wound track of the bullet traced leftward, downward and anteriorly along the coronal plane upto exit wound of bullet >>> In between right sternomastoid and posterior border of mandible >>> muscles >>> right posterolateral laryngopharyngeal wall >>> larynopharyngeal cavity >>>left lateral wall of laryngo pharynx >>> exit wound in the skin. Extravasation of blood present in surrounding tissues along
D 34 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
the track of bullet.
[c] Direction From right to left side, directed leftward, anteriorly and downward
[d] Wound of exit : Present over left side of neck, lateral aspect 4.5 Cm from left angle of mandible and 7 Cm from midline horizontal, elliptical, 2 cm X .5 Cm;
2] a] Firearm bullet entry wound present on anterior aspect of right shoulder 6 cm below tip of choracoid process and 17 Cm from midline, round 1 cm X 1cm. Bevelling of upper and outer border body present. Margins of the wound abraded. Multiple superficial puncture wounds and tattooing present around the wound of entry in the area spread over 4 cm on front 2.5 cm on back, 2 cm below and 3 cm above from the center of the wound. Abrasion collar present around wound.
[b] Track of bullet from entry wound >>> below outer 1/3rd of right clavicle and above first rib >>> antero lateral aspect of right middle lobe >>> medial surface of right middle lobe antero – superior to hilum >>> right lateral wall of esophagus at the same level. Bullet present in esophagus at the level of T5 vertebra with nose upward . Contents of esophagus oozing out of the injury. Extravasation of blood present in the surrounding tissue along the track of the bulled. Middle lobe of right lung partially collapsed.
[c] Direction From right to left leftward anteriorly, and downward.
[d] Bullet Metallic length 3.1 Cm maximum circumference 2.5 cm . Flattening present at the nose. Bullet packed, labelled, sealed and handed over to Police Constable on duty.
3] Two contused abrasions present over left side of forehead, 3 cm above left eyebrow , 4 cm from midline, one above and lateral to other. 1 cm X o.5 Cm. Each 0.3 Cm apart from each other, reddish brown.
4] Contused abrasion present over forehead, , left side 4.5 Cm from midline 4 Cm above eyebrow 0.5 Cm X 03. Cm reddish.
5] Contused abrasion present over left side of fore head 4.5 Cm from midline 0.5 Cm above eyebrow, horizontal 1 Cm X 0.3 cm reddish brown
6] Contused abrasion present over left side of bridge of nose, extending through root of nose to superior orbital margin 5 Cm X 0.5 Cm reddish brown
7] Incised wound present over nose bridge, right side 1.5 Cm from tip vertical 0.5 Cm X 0.2 Cm subcutaneous deep with tailing at upper angle 0.3 cm.
D 35 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
8] Contused abrasion present over tip of nose, vertical on left side 1 cm X 0.2 cm reddish brown
9] Contused abrasion present over right side of forehead 3 cm above eyebrow 1.5 cm from midline, transverse, 1 cm X 0.5 Cm reddish brown
10] Contused abrasion present over right side of neck 1.5 cm below lower margin of mandible 3.5 cm from midline, obliquely extending upward and backward and laterally, lateral end intermingled with entry wound of injury no. 1 size 5 cm X 1 cm reddish brown
11] Contused abrasion present over right side of neck 2 cm below and parallel to injury no. 10 4.5 cm from midline 5 cm X 1 cm reddish brown
12] Contused abrasion present over right side of neck 4.5 cm below mandible 3 cm from midline. Parallel to injury no. 11 4.5 cm X 2 cm reddish brown.
13] Contused abrasion present over right side of neck 10 cm below tip of chin 1.5 cm from midline, extending obliquely upward and laterally 9 Cm X 2 Cm reddish brown
14] Contused abrasion present over left shoulder anteriorly 1.5 cm midial to tip of choracoid process 12 cm from midline, transverse, 3.2 Cm X 1 cm reddish brown. Corresponds to the exit wound of left side of neck of injury no. 1
15] Multiple superficial puncture wounds present over left clavicular region 8 cm from midline of size varying from .3 ms to 0.1 cm, cutaneous and subcutaneous deep.
16] Linear abrasion present over anterior aspect of right shoulder 10 cm below tip of shoulder, horizontal extending laterally and backward 3 cm long brownish in colour
17] Linear abrasion of length 2 cm right arm anterior aspect 4 cm below injury no. 16, obliquely extending laterally upward
18] Contused abrasion present over front of right forearm 4 cm below elbow joint obliquely extending upward and medially 3 cm Z 1.5 Cm reddish brown
19] Contusion present over left arm 6 cm above left elbow, horizontal 4 Cm X 2 Cm reddish
D 36 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
20] Contused abrasion present over present over left forearm 18 cm from elbow, dorsal aspect horizontal 2.5 cm X 1 cm reddish brown21] Cut wound present over front of left forearm 6 cm ab over wrist joint. Horizontal .5 cm X .2 cm subcutaneous deep.
22] Contusion present over dorsum of right hand 3 cm above knuckle of index finger 1 cm X 1 cm bluish red
23] Two cut wounds present over dorsum of right middle finger, one above the other , over proximal phalynx 0.2 Cm X 0.2 Cm subcutaneous deep.
24] Lacerated wound present over knuckle of left ring finger, vertical 7 cm X .2 cm subcutaneous deep.
25] Contused abrasion present over knuckle of left little finger 0.2 cm X 0.2 Cm reddish brown
26] Contused abrasion present over upper border of left knee 1.5 cm X 1 cm transverse anteriorly reddish brown.
The age of above mentioned injuries was opined as fresh.
38] On internal examination, he found
following injuries :
1] Head : Contusions, present in scalp corresponding to injury nos. 3, 4, 5, 6 and 9 red in colour.
2] Thorax : [a] Walls ribs, cartilages Haematoma present in inter
costal muscles of right side around 2nd and 3rd rigs. Extravasation of blood present in surrounding tissues, red in colour,
[b] Pleura parietal pleura torn at apex and visceral pleura torn corresponding injury no. 2 of column no. 17, right pleural cavity contains about 100 ml blood.
[c] Track of the bullet passes through laryngopharynx refer to injury no. 1 column no. 17. Extravasation of blood present in neck tissues at and above the level of thyroid cartilage.
[d] Right Lung Track of the bullet passes through middle lobe through and through. Pale Extravasation of blood present in surrounding to track. Partially collapsed, 300 Gms.
D 37 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
[e] Left lung : Pale 440 gms,
3] Abdomen : a] Walls : Intact
Peritoneum : Pale,Cavity : No free fluid.Buccal cavity teeth tongue and pharynx ( having reference to injury no. 1 column no. 17)
Esophagus Penetrating bullet injury present on right wall at the level of hilium of right lung, food material oozing out of it.
Bullet recovered . ( having reference to injury no. 2 in column no. 17 ).
39] According to Medical Officer P. w. 9, all
injuries were antemortem and he opined that injury Nos. 1
and 2 were sufficient to cause death in natural circumstances.
According to him, the cause of death was due to “ shock and
haemorrhage due to firearm injury to vital organs ”.
40] According to P. W. 9 Medical Officer, the
death of Suresh Lakhotia and Sushil Lakhotia was
homicidal one. Since defence has admitted post mortem reports
Exhs 187 and 190, inquest panchanamas Exhs185 and 189 ) ,
homicidal death of Suresh Lakhotia and Sushil Lakhotia
by fire arm injury, is undisputed.
Regarding injuries of Shailesh Lakhotia :
41] To prove the same, case of prosecution rests
on oral testimony of P. W. 4 Shailesh and his medical certificate
Exh196.
D 38 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
42] As per prosecution's case, P. W. 4 injured witness
Shailesh Lakhotia was shifted to Dr. Chandak's Hospital on
08052008. Dr. Chandak P. W. 10 examined injured Shailesh
Lakhotia, who was brought with the history of gun injury over
right knee, left thigh and bleedings from scalp.
43] On examination, he issued Medico Legal certificate
Exh196 on 07062008. He made observations that
a] Penetrating wound over right knee with gun powder around it
b] Abrasion over left thigh admeasuring 3 X 1 Cms horizontally placed with blister around it;
c] CLW three in number bone deep admeasuring 3 Cms X 1 Cm each other occipital profusely bleeding with surrounding contusion, gun powder over left forearm.
Prosecution claims that these injuries may cause
death in its natural course. This aspect is disputed by defence.
44] Testimony of Dr. Chandak reflects that in
order to locate the bullet, he snapped 2 Xrays ( Exhs198
and 199 ) and found bullet in the calf near Fibula on right side
and performed surgery. He removed bullet and handed it over
to the police. Bullet was seized by Investigating Officer by
drawing its panchanama vide Exh201 bearing his signature. He
also proved to have obtained necessary endorsement on his
letter head vide Exh200. P. W. 10 Dr. Chandak also identified
article no. 6 Bullet before the Court. P. W. 10 also deposed
about suturing injuries over scalp, development of right foot
dropped and advised of physiotherapy . He produced on
D 39 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
record discharge card of Shailesh at Exh197.
45] According to P. W. 10 Dr. Chandak, injuries
over the Knee and Thigh of injured Shailesh were occurred due
to bullet and gun. He opined that injuries over scalp of Shailesh
might cause damage to the brain and due to bullet injuries
there was possibility of his permanent disability to leg.
P. W. 10 Dr. Chandak further opined that the injuries of
Shailesh were fresh at the time of his admission in the hospital
and the patient with these injuries may cause death in its
natural course .
46] P. W. 10 Dr Chandak on reexamination
testified that on 08052008 Head Constable Sheshkumar
Pande, B. No. 1584 of Lakadganj Police Station gave requisition
to him to state about the fitness of patient. On the requisition
Exh202 itself he endorsed that “Patient is fit to give
statement ”.
47] Learned Counsels for the accused to
discredit testimony of P. W. 10 Dr. Chandak referred to his
cross examination and argued that Xrays without having any
specific marks of identity and further discharge card are
coming before the Court for the first time. Admittedly, Xrays
have been snapped by technician, who was not examined. Bed
head ticket of the patient on which summary report Exhs 196
and 197 are allegedly based are not produced before the Court.
D 40 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Scoring on Injury No. 3 for insertion of gun powder is not
initialed. Abrasion injuries can even cause by frictions.
They further argued that admission on
part of witness Dr. Chandak that it is true that injury nos. 1, 2
and 3 are definitely not the gun injuries and further admission
that he has not personally performed the operation on the
injury of the injured and further aspect that Exh196 is silent
about removal and handing over the metal lid recovered
from the body of Shailesh to the police, the testimony of
Dr. Chandak P. W. 10 is devoid of any trust.
Learned Counsels further argued that Dr.
Chandak has admitted that on 08, 09, 10 and 11 May, 2008,
patient Shailesh was not in a condition to give statement and
after 12th May, 2008, police sought permission from hospital of
Dr. Chandak to record his statement but in reexamination P.
W. 10 changed his version and added that police sought his
opinion about fitness of patient Shailesh P. W. 4 on 08052008
and he endorsed vide Exh202 that patient is fit to give
statement, looses credibility of investigation regarding removal
of bullet from the leg of Shailesh and further recording its
statement.
48] I am of the view that, since Shailesh
Lakhotia is deposing substantively before the Court, the
discrepancies appearing in the testimony of P. W. 10 Dr.
D 41 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Chandak, do not shatter case of prosecution. I am of view that
nature of injury may change but from the discharge card Exh
197 Medical Certificate showing contused lacerated wound
three in number bone deep admeasuring 3 Cm X 1 Cm each
other occipital profusely with surrounding contusion and
substantive evidence of Shailesh, the prosecution has proved
that P. W. 4 Shailesh Lakhotia was injured in the said assault
and was admitted.
49] Conclusively, I find, from the document of
post mortem reports Exhs 187 and 190, the prosecution has
successfully proved homicidal death of Sushil Lakhotia and
Suresh Lakhotia and on the basis of Medical Certificate
Exh196 and discharge card issued by Dr. Chandak vide Exh
197 and substantive evidence of injured witness P. W. 4 Shailsh
Lakhotia that Shailesh Lakhotia sustained injuries in the
assault .
Ballistic Expert's Report Exh207 :
50] Ballistic Expert Report Exh207 is the
prime document on the basis of which prosecution sought to
prove its case.
51] Ballistic Expert P. W. 12 Shri Gautam
Ghadage proved the contents of report Exh207 deposed
about his qualification and testified about receipt of seized
articles in Crime No. 170 of 2008 in sealed condition brought by
D 42 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Police Sub Inspector Mudgal on 12062008. He testified that
he found all the parcels in sealed condition as described in the
letter received vide Exh206 . He gave numbers of their office
to the sealed packets received with letter No. 206 as L. M. C.,
No. BL 475 of 2008. He analyzed the articles. He testified
about giving of number. He further testified about sorting out
the necessary articles for examination and sending other
articles to Biological Department of their Laboratory. He further
testified about marking of its exhibit numbers.
1] Exh 1 : contains one single barrel breech loading country made hand gun put in an envelop, marked ExhBE.
2] Exh2 : contains one single barrel breech loading country made hand gun put in an envelop, marked ExhBF.
3] Exh3 : contains one single barrel breech loading country made hand gun put in an envelop, marked ExhBG.
4] Exh4 : contains one Country made pistol with magazine having crude marking Made In England, put in envelope marked Exh BH.
5] Exh5 : Three intact KF 8 MM rifle cartridges put in an envelope marked Exh BI.
6] Exh 6 : One deformed softnose copper jacketed bullet in a bandage cloth again put in an envelope marked ExhD.
7] Exh7 : One KF 8 MM rifle empty having indentation on the cap put in a plastic container marked ExhI.
8] Exh 8 : One KF 8 MM rifle empty having indentation on the cap put in a plastic container marked as ExhJ.
9] Exh 9 : One KF 8 MM rifle empty having indentation on the cap put in a plastic container marked ExhK.
D 43 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
10] Exh 10 : One KF 8 MM rifle empty having indentation on the cap put in a plastic container marked Exh : L.
11] Exh 11 : One KF 8 MM rifle empty having indentation on the cap put in a plastic container marked Exh : M
12] Exh 12 : One KF 7.65 mm pistol empty without primer cap put in a plastic container marked Exh' N.
13] Exh 13 : One softnose copper jacketed bullet having brushing marks put in a plastic container marked Exh O.
14] Exh 1 4 : One intact KF 8 MM rifle cartridge put in a plastic container marked ExhP.
15] Exh 15 : One KF 8 MM rifle cartridge having light indentation on the cap put in a plastic container marked Exh Q.
He testified that Exhibit 1 to 15 also labeled ' Lakadganj Police Station, Nagpur City, Cr. No. 157/08 U/s. 394, 396, 397, 302, 201 (B) , IPC r/w. 3, 25 Arms Act.
16] Exh 16 : One Softnose copper jacketed bullet having brushing marks put in a plastic container labeled, MLPM No. PNB 545/08, dated 09/09/08 name Sushil Sayamdunder Lakhotiya, content bullet, marked ExhR.
17] Exh 17 : One deformed softnose copper jacketed bullet having brushing marks put in a plastic container labeled, marked ExhY.
52] He testified before the Court that along
with above articles their office also given the exhibit to other
seized articles, however, those were later on forwarded to the
respective Departments for chemical analysis.
a] He testified before the Court that on
2392008 he took physical measurement of articles
mentioned at Exh Nos. 1 to 17. He also took the barrel
D 44 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
washing of the firearms and took measurements of live
cartridges in length as well as width and also took the
measurements of Empties .
b] According to him, in washing of empties he
found Nitrite in the same. During analysis he also observed
brushing marks on bullets. Accordingly, he took noting of
Ballistic analysis and recorded his observations as under :
c] Exh Nos. 1, 2 and 3 are the single barrel
breech loading country made handguns in working order. They
are capable of chambering and firing 8 MM rifle cartridges.
d] Residue of fired ammunition Nitrite was
detected in the barrel washings of Exhibit 1, 2 and 3 showing
that these handguns were used for firing prior to their receipts
in the laboratory.
e] He confirmed before Court that randomly
Selected two 8 MM rifle cartridges from Exhibit 5 were
successfully test fired through the handgun Exhibit 1. Of
these one bullet was completely penetrated through soft
wooden plank of thickness 3/4" kept at distance of 2' away
from muzzle of Exhibit 1.
f] Two 8 mm rifle cartridges, one in Exhibit 5
and other in Exhibit 14 were successfully test fired through the
handgun in Exhibit 2. Of these one bullet was obliquely hit on
soft wooden plank of thickness 3/4" kept at distance 2' away
from muzzle of Exhibit 2.
D 45 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
g] Two 8 mm rifle cartridges available in
laboratory were successfully test fired through the handgun
Exhibit 3. Of these one bullet was completely penetrated
though soft wooden plank of thickness 3/4" kept at distance 2'
away from muzzle of Exhibit 3.
53] He testified that Exhibit 4 is a country
made pistol in working order. It is capable of chambering and
firing 7.65 mm pistol cartridges. Residue of fired ammunition
nitrite was detected in the barrel washings of pistol Exhibit 4,
showing that the pistol was used for firing prior to its receipt in
the laboratory. Two 7.65 mm pistol cartridges available in
laboratory were successfully test fired through the pistol
Exhibit 4.
54] He observed that empties in Exhibit 7,8,9,
10 and 11 are the fired 8 mm rifle cartridge cases. The
characteristic features of the firing pin impression observed
under comparison microscope tally with those on the cartridges
test fired from the handguns Exhibit 1, 2 & 3.
55] On the basis of characteristic features of
firing pin impression these empties are grouped
as follows :
Exhibit
No
I II III
7 Fired from the country made handgun Exh2.
D 46 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
8 & 9 Fired from the country handgun Exhibit 3.
10 & 11 Fired from the Country made handgun Exhibit 1.
He testified that the deformed soft nose
copper jacketed bullet in Exhibit 6, the soft nose copper
jacketed bullets in Exhibit 13, Exhibit 16 and deformed soft
nose copper jacketed bullet in Exhibit 17 are the fired 8 mm
rifle bullets. These bullets having superficial length wise
brushing marks observed under comparison microscope tally
with those on the test fired bullets collected from the hand
guns Exhibit 1 , 2 and 3.
56] On the basis of striation and brushing
marks, these bullets can be grouped as follows.
Exhibit No
Group I Group II Group III
6 Fired from country made handgun Exh1
13 Fired from the country handgun Exhibit 2.
16 &
17
Fired from the Country made handgun Exhibit 3.
D 47 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
57] He testified before the Court that 8 mm
rifle cartridge in Exhibit 15 having light indentation on the cap
and unsuitable for comparison of firing pin impression.
a] He testified that empty in Exhibit 12 is a
fired 7.65 mm pistol cartridge case without primer cap and
unsuitable for comparison of firing pin impression.
b] He testified detection of metallic lead and
copper in presence of lead smoke and absence of blackening
and powder residues around the periphery of encircled shothole
on half bush shirt Exhibit 18A and detection of metallic lead
and copper in absence of blackening and powder residues
around the periphery of encircled shothole on full bush shirt
Exhibit 19A and full jean pant Exhibit 20A are consistent with
the wipe and passage of copper jacketed bullet having been
Ballistic fired from beyond the powder range of the weapon.
c] He stated before the Court that nothing of
note in relevance to fire gun shots residues detected in Exhibit
21 to 25, 27 and 30 and further stated that the skin pieces in
Exhibit 26, 28, 29 and 31 highly decomposed and not suitable
for ballistic examination. Accordingly, he prepared his report
and forwarded the same to the concerned police station vide
Exh207, bearing his signature and forwarded the same to
concerned police station.
D 48 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
d] As such, he confirms contents of Exh207 in his
substantive evidence before the Court and proved it.
58] P. W. 12 Ballistic Expert Shri Ghadage
further testified regarding clothes sent for analysis that, he
examined Exhs18A, 19A and 20A and found detection of
metallic lead and copper in presence of lead smoke and
absence of blackening and powder residues around the
periphery of encircled shothole on half bush shirt Exhibit 18A
and detection of metallic lead and copper in absence of
blackening and powder residues around the periphery of
encircled shothole on full bush shirt Exhibit 19A and full Jean
Pant Exhibit 20A are consistent with the wipe and passage of
copper jacketed bullet having been fired from beyond the
powder range of the weapon.
59] Analysis of P. W. 12 Shri Gautam Ghadage
Ballistic Expert is tried to be scathed in the cross examination.
Ballistic Expert P. W. 12 in his evidence deposed before the
Court that he has issued report Exh207 on the basis of his
observations written down in written notes vide Exh209
disclosing various tests / examinations conducted by him .
Ballistic Expert has also testified that he has snapped
photographs of empties and test firing empties. He has also
deposited test firing cartridges ( empties ) with metal lid along
with articles. He deposed that he has taken photographs of
brushing marks occurred on metal lid at the time of analysis.
D 49 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
He has brought those photographs with him at the time of
examination before the Court. He has testified that bullets
having Exhs6,13, 16 and 17 are the fired 8 mm rifle bullets
and he further analyzed that these bullets having superficial
length wise brushing marks observed under comparison
microscope tallied with those on test fired bullets collected
from the handguns Exhs – 1, 2, and 3 and further he has
reached to the conclusion on the basis of striation and brushing
marks of these bullets. As such, suggestion of non utilization of
barrel scope and breaking of barrel for examination is of no
importance .
60] P. W. 12 Ballistic Expert testified that he
has not carried out the tests of distance / range of firing, since
no query was made by the investigating Officer to that regard,
no way shatters the case of the prosecution, since case of
prosecution prominently based on collective liability and traces
of individual firing are beyond the scope of scrutiny. Hence, it
is submitted that argument advanced by learned Counsel Shri
Gaikwad for accused no. 6 that admission on the part of
Ballistic Expert that he has not specifically mentioned in
analysis report as to what range the burnt and unburnt particles
have travelled at the time of test firing of cartridges from
exhibited articles, weaken the case of the prosecution is devoid
of merit. It is sufficient for prosecution to prove the guns Exhs 1
to 4 were used in the crime, may not essentially for firing
D 50 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
shots on victim .
61] Learned Counsel Shri Gaikwad for accused
no. 6 further vehemently argued that Exh4 country made
pistol with a magazine having crude marking, (Made in India)
marked as Exh BH, is analyzed unscientifically as a pistol used
for firing. He submitted that guns Exhs 1 to 4 were not in
working condition and were not even suitable for test firing as
Ballistic Expert admits that he has applied Greece and oil.
a] Learned Counsel for accused no. 6 further
submitted that Exh4 a country made pistol is admittedly
capable of chambering and firing 7.65 mm. Pistol cartridges but
except Exh12, no ammunition or pistol empty of KF 7.65 mm
was sent for analysis to Ballistic Expert. Admittedly, Exh12
which do not had primary cap. As such, comparison of
Exh12 empty and Exh4 a gun is incorrect and unscientific.
b] Learned Counsel further raised another
point that opinion of the Ballistic Expert about use of Exh4,
a country made pistol prior to its receipt in the laboratory from
his observation that residue of fired ammunition nitrate was
dictated in a barrel washing of pistol Exh4 is incorrect,
therefore, he submitted, no reliance can be placed on Exh207 a
report of Ballistic Expert to conclude that Exh 4 a country
made pistol was used in the crime.
62] It is sufficient for the prosecution to prove
that gun Exh4 was used in the crime. Though, it has not been
D 51 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
used for causing injury, even use of weapon gun for threatening
in the crime is sufficiently proved by the prosecution.
63] On analyzing report Exh207 and counter
arguments, I submit that Ballistic Expert had admitted that he
has received Exh12, one KF 7.65 mm pistol empty without
primary cap put in a plastic container marked ExhN, and also
admitted that he had also not received any bullet with Exh12
to compare it with guns. Ballistic Expert also admitted that the
empty Exh12 is a fired 7.65 mm pistol cartridges without
primary cap and unsuitable for comparison of firing pin
impression. Though, Ballistic Expert has stated that he
successfully test fired two 7.65 pistol cartridges available in
laboratory through pistol Exh4 and then reached to the
conclusion. I agree with submission of Advocate Shri Gaikwad
for accused no. 6 that admission on the part of Ballistic Expert
in the cross examination that residue of nitrate would remain
present in the barrel even if gun remained unused for one year
or more do not conclusively supports observation of Ballistic
Expert that Exh4 was used in crime in question. Notably
Article Country made handgun Exh4 was admittedly sent for
analysis along with magazine. Examination of magazine was
not conducted, which would have disclosed how many bullets were
fired.
64] It is significant that only on the basis of
presence of Nitrate Powder. Exh4 is concluded as Gun used .
D 52 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Since, only empty found on the place of incident, sent for
analysis was not suitable for any comparison. I submit, it is
inconclusive whether the Gun Exh – 4 was used in the crime
for firing shot on assailants or injured . At the same time, it is
sufficient for the prosecution to prove that gun Exh4 was
used in the crime. Though, it has not been used for causing
injury, even use of weapon gun for threatening in the crime is
sufficiently proved by the prosecution.
65] For Exhs 1, 2 and 3, I find not ascertaining
time for use of weapon because of lack of technology or non
videographing because of lack of facility or not submitting
entries from registers regarding analysis no way discredit
analysis of Ballistic Expert presented vide Exh207 on record.
66] It needs to be mentioned that photographs
snapped for analysis though were in possession of Ballistic
Expert at the time of examination before the Court, its
production was not sought by prosecution or defence.
67] P. W. 12 Mr. Ghadage, Ballistic Expert has
denied the suggestion that he did not receive the articles in
sealed condition or not resealed the weapon after its tests , he
denied that Exhs 1 to 4 were not in working condition and
were not suitable for test firing. As such, I find, testimony of P.
W. 12 Ballistic Expert who submitted analysis report Exh207
substantiating the claim of the prosecution, withstood with the
test of cross examination. I submit that P. W. 12 has proved
D 53 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Ballistic Report Exh207. Observations and analysis presented
vide Exh207 being scientific, it is reliable piece of evidence .
68] Conclusively I find , on the basis of
Exh207, the Report of Ballistic Expert, the prosecution has
proved that
i] Exh7 was fired from country made hand gun Exh2 .
ii] Exh8 and Exh9 were fired from country made hand gun Exh3.
iii] Exh10 and Exh11 are fired from country made hand gun Exh1.
iv] Exh6 was fired from country made hand gun Exh1.
v] Exh13 was fired from country made hand gun Exh2 ; and
vi] Exh16 and Exh17 are fired from country made hand gun Ex3.
Traces of crime have been collected by Investigating machinery from three sources :
i] Incriminating articles seized from the Spot.
ii] Bullets recovered from dead bodies of Suresh and Sushil and
iii] Country made hand guns Exhs 1, 2, and 3 seized from the accused.
i] Incriminating articles seized from the Spot of incident vide Spot Panchanama ( Exh121 ) :
Investigation was conducted at first point
of time by Investigating Officer on arrival of spot is that of
drawing of spot panchanama.
69] Investigating Officer P. W. 19 Mr. Sawai
testified that he inspected the spot i. e. office of Lakhotia
D 54 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Brothers at Gayatrilok Apartments. P. W. 19 testified regarding
seizure of incriminating articles found on the spot i. e empty
cartridges ( which were marked at Exhs – 7, 8, 9, 10 and 11 by
Ballistic Expert for analysis ), bag containing cash amount, 2
dupattas, one cap marked Gajju on it, some hairs on the spot,
one live cartridges, some mobile phones, out of which some
were not having SIM cards in it, blood stains found on the spot ,
one blade of knife and drawing its panchanama in presence of
panch witnesses.
70] Said panchanama Ex121 is sought to be
proved by examining panch witness P. W. 5 Radheshyam Sarda,
who testified drawing of spot panchanama, seizure and sealing
of articles from the spot of the incident and proved
panchanama Exh121.
71] In this case for all the panchanamas drawn
on spot of incident on the date of incident services of P. W. 5
Radheshyam Sarda has been availed as panch witness by police.
Defence has submitted that this witness is not trustworthy and
his version cannot be believed.
72] Learned Counsel Shri Gadling for accused
Nos. 2 and 7 argued that variance regarding time of incident is
fatal to the case of prosecution. P. W. 1 to P.W. 4 have stated
that incident occurred after 500 to 530 P.M. but, P. W. 5
Radheshyam Sarda stated that he received information about
incident at 230 P.M. To 300 P. M. and he reached on the spot
D 55 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
at about 300 to 330 P. M. hence, his presence on the spot of
incident itself is doubtful since the witness P. W. 5 is
not declared hostile when he is making statement supporting
the case of the defence, say of witness has to be accepted as it
is . Learned Counsel placed reliance on a case of reported
2008 (4) Crimes 507 ( Gujarath ) and Satyaveer Rathi Vs
State reported in 2011 (2) Crimes 27 (S. C.) to butters his
contention.
73] It is respectfully submitted that Radheshyam Sarda
is a panch witness. He is not cited as a eye witness. Variance
in the testimony of panch witness of spot panchanama visavis
eye witnesses do not affect the case of prosecution. Such
variance do not create any serious doubt as argued. Since, P.
W. 5 supported case of prosecution, question of his declaring
hostile does not arise. Neither, it is a case of defence that the
incidence occurred at 300 P. M. to 330 P. M. As such,
statement is not at all supporting to the case of the defence. By
accepting such version, no benefit can be extended to the
accused.
74] Repeatedly acting as a panch cannot be a
ground to reject the testimony of said witness ,
mechanically .Version of P. W. 5 Radheshyam Sarda remained
unshaken. His testimony is reliable.
D 56 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
75] In the case of Raju Santoni Vs State of
Maharashtra, reported in 2002 (1) BCRC Page No. 519
Hon'ble High Court of Judicature at Bombay, has held that
" It is painful reality that people these days
are loath to act as a panch and
therefore, Investigating Officer has little
option. "
76] In this case, said spot panchanama
Exh121 is proved by the prosecution by examining panch
witness P. W. 5 Radheshyam Sarda, who testified preparation
of spot panchanama, seizure and sealing of articles from the
spot of incident i. e. flat No. 205, Gayatri lok Apartment,
Nagpur. Testimony of P. W. 5 Panch Witness Mr. Sarda
cannot be discarded simply because he narrated incorrect time
of his reaching on scene of occurrence. When he has
simultaneously admitted that he was present at the time of spot
of incident till 1130 P. M. substantiates his participation in
preparation of spot panchanama. Even not recollecting the
exact article numbers or names and ranks of Police Officers or
number of articles seized from the spot of incident does not
discredit his testimony since his presence on the spot of incident
even through the cross examination and his testimony regarding
seizure of the articles seized in his presence and its sealing by
wrapping the articles in papers and reading of contents of the
D 57 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
panchanama before putting signature remained unshaken.
Calling this witness repeatedly in this case as a panch in the
investigation of the said crime cannot be doubted with suspicion
unless and until falsity of the investigation brought in light.
It is submitted that prosecution has proved that
P. W. 5 Radheshyam Sarda has witnessed seizure and sealing of
incriminating articles by Investigating Officer from the scene of
occurrence. P. W. 5 proved that he acted as a panch for drawing of
spot panchanama Exh121. As such, I find that the prosecution has
duly proved drawing of seizure panchanama Exh121 and seizure of
empties from scene of occurrence.
ii] Bullets recovered from dead bodies of Suresh
and Sushil :
To prove the same, testimony of P. w. 9
Medical Officer Shrigiriwar and P. W. 19 Investigating Officer
Mr. Sawai needs to be referred :
77] P. W. 9 Dr. Shrigiriwar, who conducted
autopsy on the dead body of Suresh and Sushil Lakhotia and
issued postmortem reports, vide Exh187 and 190 respectively,
reflect that he has preserved viscera and articles (including
bullets) recovered from the bodies,. He packed, sealed and
handed over it to Head Constable Pande. Recitals of Exhs187
and 190 ( admitted documents ) substantiates it.
78] Similarly, Exh279 seizure panchanama
depicts that Investigating Officer P. W. 19 Mahesh Sawai has
D 58 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
received these seized articles including bullets, as well as
Viscera of Sushil and Suresh through Head Constable Pande.
Genuineness of Exh279 is not disputed .
79] P. W. 19 Mahesh Sawai Investigating
Officer deposed that on 12052008 he sent Viscera and
articles removed from the dead bodies of Suresh Lakhotia and
Sushil Lakhotia to Forensic Science Laboratory, Nagpur vide
Exhs – 321 for analysis, through Police Constable Deviprasad ,
B. No. 1357 and Deviprasad who submitted it to Forensic
Science Laboratory, Nagpur, had brought invoice challan of
the same vide Exh320 and 322, to police station.
80] As such, prosecution through admitted
document of seizure panchanama Exh279 and unimpeached
testimony of Investigating Officer P. W. 19 has proved that
bullets retrieved from the dead bodies of Suresh and Sushil
Lakhotia were, seized, sealed and sent for chemical analysis to
Forensic Science Laboratory, Nagpur by Investigating Officer
Shri Sawai .
iii] Country made hand guns Exhs 1, 2, and 3 seized
from the accused.
81] To prove recovery of hand guns Exhs – 1, 2
and 3, the prosecution relies upon the testimony of P. W. 19
Investigating Officer and Panch witness P. W. 8 Mr. Bargad. It
is incumbent upon the prosecution to establish due seizure of
D 59 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
said country made hand guns from accused no. 2 Sunil as
alleged.
82] P. W. 19, Mahesh Sawai, Police Inspector
deposed that during the investigation of the crime, involvement
of accused no. 2 Sunil Sharma was gathered and after his arrest
on 28052008 vide Exh282, accused no. 2 Sunil Sharma
showed his willingness to recovery of weapon, hence, his
voluntary disclosure statement was recorded vide Ex284 and in
consequence of statement, accused no. 2 took them to his
house situated at Ashok Nagar, Nagpur and gave recovery of
one bag from bed room of his house. In the said bag, there
were 3 country made revolver and 3 cartridges. Those articles
were seized and sealed under seizure panchanama Exh285.
83] On this point, to prove the seizure and
sealing of three country made revolvers and 3 cartridges,
prosecution relied upon testimony of P. W. 8 Ravindra Bargad,
who supported the case of the prosecution to the extent of his
signatures over recovery panchanama dated 28052008.
Those were at Exh173 and 174. Though this witness has not
whole heartedly supported the case of the prosecution, in
respect of recovery of 3 country made hand guns and 3
cartridges by investigating agency vide seizure memorandum
dated 28052008 at Ex285 made in pursuant to statement of
accused no. 2 Sunil @ Pintu Sharma vide Exh284, it has been
D 60 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
proved by Investigating Officer P. W. 10 Mr. Sawai.
Furthermore, it is necessary to see that the result of analysis of
bullets found from the spot of incident are analyzed positively
that they were fired from country made hand gun Exhs 2, 3 and
1, I find hostility of P. W. 8 Ravindra Bargad with admission of
signature, has not shaken the aspect of recovery of 3 country
made hand guns in pursuant to the statement under Section 27
of Indian Evidence Act by accused no. 2 Sunil @ Pintu Sharma,
which has been duly proved through the testimony of P. W.19
Mr. Sawai. In my view, the prosecution has successfully proved
that 3 country made hand guns Exhs 1 , 2 and 3 were
recovered from accused no. 2 Sunil Sharma in pursuant to his
voluntary disclosure statement.
84] I find, that argument advanced by the
learned defence Counsel Shri Gadling, for accused no. 2 Sunil
Sharma that the alleged seizure panchanama Ex285 is tainted
with coercion and it is an outcome of applying 3rd degree
method by the Investigating Officer is baseless. Learned
Counsel submitted that Exhs 334 and 335 MLC Papers of
accused no. 3 obtained during his remand, would clarify that
accused no. 3 was beaten mercilessly hence, accused no. 2
Sunil Sharma could not gather courage to move complaint
before learned Judicial Magistrate, First Class during his
remand regarding 3rd degree method perpetrated to him.
D 61 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
85] I submit out come of application of
disclosure of atrocities moved by accused no. 3 was that he was
not granted further Police custody and remanded to Magisterial
Custody. Taking into consideration guarantee of protection,
apprehension that accused no. 2 would be tortured more in the
police custody is unwarranted.
Taking into consideration positive analysis
of Ballistic Expert' Report, I find , arguments advanced do not
hold any water.
86] Conclusively, it is submitted by way of
cogent and reliable evidence, prosecution has proved that
A] P. W. 9 Dr. Shrigiriwar has removed
Exh16 from the dead body of deceased Sushil and Exh17
from dead body of deceased Suresh at the time of autopsy and
he handed it over to Deviprasad, after conduction of post
mortem report. This hand overing of bullets is also mentioned
in admitted documents of post mortem reports. Prosecution has
proved that Bullets were duly seized from Deviprasad by
Investigating Officer Shri Sawai and were duly sent to Forensic
Science Laboratory, Mumbai, through Police Sub Inspector
Mudgal along with C. A. form Ex323. Ballistic Expert's Report
Exh207 shows that Exh16, was exhibited as ' R ' is the bullet
recovered from the body of Sushil Lakhotia by Medical Officer
of Indira Gandhi Medical College, Nagpur. Likewise it shows
D 62 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
that Exh17 was exhibited as 'Y' is the bullet recovered from
the body of Suresh Lakhotia by Medical Officer of Indira
Gandhi Medical College, Nagpur.
B] From Ballistic Expert's Report Exh207,
prosecution has proved that Exh16 the bullet recovered from
the dead body of Sushil Lakhotia and Exh17 – the bullet
recovered from the dead body of Suresh Lakhotia, have been
fired by the country made hand gun Exh3 seized from accused
no. 2 Sunil Sharma.
C] Ballistic Expert's Report shows that Exh6
bullet removed from the leg of injured Shailesh Lakhotia by Dr.
Chandak is fired from country made hand gun Exh1.
Testimony of Dr. Chandak remain unshaken Dr. Chandak
proved that he has handed over the bullet removed from the
Leg of Shailesh to Investigating Officer and obtained necessary
endorsement from Police Officer on his Letter Head Exh200
and further testified about drawing of seizure panchanama by
the Investigating Officer regarding said bullet recovered from
the body of Shailesh Lakhotia vide Exh201.
D] I find, though Dr. Chandak has admitted in
cross examination that Exh196 discharge card of Shailesh
Lakhotia issued on discharge of patient Shailesh from his
hospital is silent about removal of metal lid and handing it over
to police machinery, I find, unshaken oral testimony of
D 63 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Shailesh Lakhotia on the point of sustainment of bullet injury
on his leg, along with documents showing endorsement on
private letter head of Dr. Chandak at Exh200, and proved
seizure panchanama of said bullet by Investigating Officer vide
Exh201 is sufficient to hold that Shailesh Lakhotia had
suffered bullet injury on his leg and the said bullet was
removed, seized , sealed and sent for analysis; supported with
positive report of Ballistic Expert vide Exh207, I find, the
prosecution has also proved that the bullet Exh– 6 was
removed from leg of Shailesh Lakhotia , was fired from country
made hand gun Exh – 1 seized from accused no. 2 Sunil
Sharma .
E] Prosecution has proved seizure of bullet
from the spot of incident. Report Exh207 states Exh13 ( one
softnose copper jacketed bullet) was seized from the spot of
incident is a bullet fired from the country made hand gun
Ex2, which is exhibited as BF. Prosecution has also proved
that Country made handgun Exh2 was also seized from
accused no. 2 Sunil Sharma . From analysis of Ballistic Expert
and due seizure of bullet from spot of incident, prosecution
has proved that bullet found on spot of incident has been fired
in the incident from country made handgun Exh2 .
F] Prosecution has proved seizure of empties
Exhs 7, 8, 9, 10 and 11 from the spot of incident by proving
D 64 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
spot panchanama and also proved from report of Ballistic Expert
Exh207 that these empties are the empties of bullets fired from
country made hand guns Exh1, Exh2 and Exh3, those were
seized from accused no. 2 Sunil Sharma.
87] As such prosecution has proved beyond all
reasonable doubt the circumstances :
That, bullets retrieved from dead body of Suresh
Lakhotia, Sushil Lakhotia were fired from country made
handguns Exh 3
That, bullet retrieved from the leg of injured
Shailesh Lakhotia was fired from country made handgun Exh1
That, bullet found on the spot of incident was also
fired from country made handguns Exh – 2 .
That, empties Exs – 7, 8, 9, 10 and 11 found on spot
of incident are fired from country made handguns Exhs1, 2,
and 3 seized from accused no. 2 Sunil Sharma.
These incriminating circumstances are best conclusive piece of evidence .
Arrest of Accused at Madiyav
88] To proceed further with simultaneous investigation
done by Investigating agency is arrest of accused at Madiyav.
89] Investigating agency by sending team of Maharashtra
Police and U. P. Police to Hamirpur, Kanpur, Mohaba and
D 65 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Chitrakut, arrested accused nos. 1, 3 to 7 and 8 at IIM
Tiraha, within the jurisdiction of Madiyav Police Station,
District : Lucknow. For proving the same, testimony of P. W. 14
Devesh Dilawar Singh, Police Sub Inspector , Special Task Force
is necessary to scrutinize in detail.
90] According to prosecution, on arrest of
accused no. 2 Sunil during the course of interrogation,
involvement of other culprits i. e. Amit , Yogesh, Rakesh,
Shambhu, Baccha, Ankit and Chunbandh were revealed .
91] P. W. 14 Devesh Dilawarsingh Police Sub
Inspector, Special Task Force testified that on receipt of
information from informer that culprits are from Uttar Pradesh
belonging to Hamirpur, Kanpur, Mohaba and Chitrakut
Districts, team of U. P. Police and Maharashtra Police was
prepared to investigate the matter. He further testified that as
per the information given by the informer that culprits are
gathering within the jurisdiction of Police Station Madiyav,
District : Lucknow, they made three teams and reached at
Madiyav . The informer pointed out the culprits who were
standing nearby to one pan kiosk and informer left from the
scene. He accosted suspects on the spot with the help of police
force. On inquiry, those persons informed their names as
Rakesh Khushwaha, Ankit Shukla, Amit Varma, Yogendra
Yadeo, Chunbandh, Baccha Mourya, Shambhu Rayakwad.
D 66 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
P. W. 14 Devesh Dilawarsingh further deposed that he took
physical search of above named persons and seized the articles
and material. During physical search, he found mobile phones
and cash and seized it.
Viz. : From accused no. 1 Rakesh, one Nokia
mobile phone Model No. 6030 having IME No.
357060001997066, having a SIM card being No.
89911811605000289838, mobile phone no. 9839478757 of
Vodafone UPE and cash of Rs. 200/ .
From accused no. 5 Ankit Shukla, one Nokia mobile
phone Model No. 1100 having IME No. 355692000064597 SIM
Card No. 0101633098195, mobile phone no. 9844420643 of
Spice Company and cash of Rs. 100/.
From accused no. 6 Amit Verma,one Nokia mobile
phone Model No. 1110 having IME No. 356267011438699 SIM
Card No. 8991970011033908445, mobile phone no.
9793854362 of Air Tel UPE and cash of Rs. 100/ .
From accused no. 7 Yogendra Yadav, one Nokia
mobile phone Model No. 1600 having IME No.
356957018049990 SIM Card No. 8991540605026209614,
mobile phone no. 9935047067 of Air Tel UPE and cash of
Rs. 150/
From accused no. 8 Chunubadh, one Nokia mobile
phone Model No. 1600 having IME No. 352260015110806
D 67 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
SIM Card No. 8991540625026772017, mobile phone no.
9935811484 of Air Tel UPE and cash of Rs. 200/ .
From accused no. 3 Baccha @ Nandbabu, one
Samsung SGHX 600 IME number not readable having SIM
No. 8991541007009920094, mobile phone no. 9794358376 of
Air Tel UPE and cash of Rs. 250/.
From accused no. 4 Shambhu Raikwad, one Nokia
Company 1600 IME number 358822002601941 having SIM
No. 89911500028711418903 , mobile phone no. 9792578182
of Vodafone UPE and Rs. 300/ .
From accused no. 6 Amit Verma SIM No.
89910871070861 having Mobile No. 9926821997 MP Idea
and Sim card No. 8991540803058596566 having Mobile No.
9935729761 of Air Tel UPE.
92] P. W. 14 further deposed that he prepared
seizure Panchanama Exh225 of above articles and sealed those
articles he reduced into writing said seizure panchanama
through Police Sub Inspector Shri Girijesh Tiwari. Readover
the same to the accused persons, and taken endorsement over
seizure panchanama regarding its supply to the accused. He
further deposed about arrest of accused by preparing arrest
memo Exh226 of above mentioned accused persons bearing
thumb impression of accused no. 8 Chunbandh and signatures
of other culprits and made necessary station diary entry to that
effect in police station Madiyav and produced on record the
D 68 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
extract of station diary entry vide Exh227. He identified the
accused before the Court and also identified mobiles seized
during personal search of these accused. This witness also
identified his signature over seal affixed on said mobile phones
wrapped in cotton cover. He also deposed about depositing the
said sealed articles seized by Special Task Force in malkhana of
Madiyav Police Station.
93] It would be appropriate to scrutinize the
testimony of P. W. 14 Devesh Dilavarsingh on the point of
arrest of accused at Madiyav, Dist : Lucknow, Uttar Pradesh vide
arrest panchanama Exh226, with objections raised by defence
on arrest of accused.
94] Learned Counsels for accused vehemently
argued that accuse Nos. 1, and 3 to 8 were arrested in a place
falling within the jurisdiction of Madiyav police station and
mobile phones and cash were recovered from them, but no
independent witness has been associated to the act of arrest
and seizure after personal search .
Learned Counsels for accused vehemently
argued that in the cross examination, P. W. 14 stated that many
persons were present at the time of arrest, but nobody was
ready to act as a panch, but he admitted that he has not
mentioned names of persons who denied to act as a panch
shows fishy investigation. Learned Counsel argued that P. W. 14
D 69 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Devesh admitted that the place where from accused persons
were accosted was situated near Indian Institute of
Management, in spite of that, no student or Officers of I. I. M.
was called to act as panch, though admittedly he had power to
call any Government Servant to act as a panch. No other witness
has been examined by the prosecution to corroborate the
testimony of P. W. 14 Deveshsingh . No independent witness
was associated with alleged arrest and thus in the absence of
corroboration to the testimony of P. W. 14, his evidence cannot
be relied upon, as he is interested witness.
95] Learned Advocate further argued that in the
cross examination this witness has stated that on 27052008
he had not received any material information from the informer
despite that he went to Kanpur, Hamirpur, Mohaba , Bandha,
Chitrakut – Karvi Districts though these stations are at a
distance of 90 to 270 Kms. It is beyond imagination that P. W.
14 travelled almost 600 Kms only to get information. Had P. W.
14 really received any material information, then he would have
in all probability sought information either on phone or from his
local counterpart in stead of traveling. He further argued that
Station diary entry allegedly taken while leaving the office of
S. T. F. has not been produced on record.
96] I submit that since it is upto Investigating
Officer to chalk out a line for fruitful investigation, a doubt
D 70 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
cannot always be raised .
Learned D. G. P., relied upon the State of
KeralaVs. M. M. Mathew & Another reported in 1978 (4) S.
C. C. page65 : 1978 A.I.R . ( S.C.) page 1571 :
“.....It is true that courts of law have to judge the
evidence before them by applying the well recognized
test of basic human probabilities and that some of the
(observations made by the Sessions Judge) especially
one to the effect that 'the evidence of officers
constituting the inspecting party is highly interested
because they want that the accused are convicted'
cannot be accepted as it runs counter to the well
recognized principle that prima facie public servants
must be presumed to act honestly and conscientiously
and their evidence has to be assessed on its intrinsic
worth and cannot be discarded merely on the ground
that being public servants they are interested in the
success of their case.”
97] Though it is argued that memo of Arrest
Ex226, does not bear date of arrest. Exh226 Memo of arrest
bears date of arrest as 28052008 .
98] Learned Counsels for the accused
vehemently argued that receipt of articles allegedly seized from
the person of accused has not been given to the accused. Non
giving of receipt cannot be given go bye . Exhs225 and 226 are
D 71 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
silent about hand overing the receipt of articles allegedly
given. Exh225 shows that only one copy of seizure panchanama
was given to accused Baccha Yadav. Other accused were not
provided with such copy. Similarly, information about the
arrest of accused was also not given to the relatives of the
accused and the arrest has been made in utter disregard to the
guideline laid down by the Hon'ble Apex Court in the matter of
D. K. Basu Vs State of W. B. reported in 1997 (1) S. C. C.
6814.
99] I find that , since Exh – 225 ( QnZ fxj¶rkjh )
arrest and seizure panchanama of seized articles have been
handed over to accused Baccha @ Nandbabu, for himself and
on behalf of other six accused persons with their consent.
Exh226 also bears signatures of other six accused persons,
therefore same latches of hand overing separate seizure
panchanama to every accused, in the investigation, is not fatal
to the case of prosecution.
100] Arrest panchanama Exh226 bears
signature of accused persons and particulars of seized articles
mentioned at column no. 6 discloses 7 handsets and Rs. 1300
in cash were seized from possession of accused. ( 7 vn~n gS.MlsV
1300 # udn ). As such, the objection raised by the learned
Counsels has no substance.
D 72 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
101] Learned Counsels further submitted that in
Exh225 the time of arrest is 1510 hours and in Exh226, time
of arrest is 1310 . Thus there is a doubt regarding place and
time of arrest of 7 accused persons. I find that such variation in
the time of arrest mentioned in Exhs 225 1510 hours and in
Exh226 as 1310 hours is not fatal, taking into consideration
the arrest of 7 persons at single time which is further detailed
in Exh225.
Bringing Accused No. 1, 3 to 8 at Nagpur
102] Testimony of P. W. 19, Police Inspector Shri
Sawai further reflects that police team including PSI Mudgal,
who had been to Uttar Pradesh, after search and arrest of
accused persons on 28052008, brought those accused persons
to Nagpur on 30052008.
a] On 30052008 and its station diary entry
was effected at serial no. 50 bearing signature of Shri Mudgal,
Police Sub Inspector vide Exh289.
b] Again necessary arrest forms of arrested
accused Nos. 1, 3, 4, 5, 6, 7 and 8 were prepared vide Exhs 290
to 296.
c] P. W. 19 Police Inspector Mahesh Sawai
testified that 2 parcels of articles seized at the time of arrest and
search of accused persons in Uttar Pradesh by Police Sub
D 73 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Inspector Mudgal were produced before him by PSI Mudgal. He
opened those sealed articles in presence of two panch witnesses
by making necessary panchanama, one of which containing 7
mobile sets along with SIM and 2 separate Sim Cards along with
necessary labeling of the name of the respective accused from
whom they were seized and another parcel containing cash
amount, which was seized from the accused persons during
their physical search, were again seized by making fresh seizure
panchanamas of two parcels in presence of two panch witnesses
and those articles were sealed. The said single seizure
panchanama of two parcels Exh132 was prepared in presence
of two panch witnesses and P. S. I. Mudgal.
d] Testimonies of P.W. 19 and P. W. 14 are
corroborated to each other. Said hand overing of the articles
cannot be doubted much. Though PSI Mudgal is not examined
by prosecution, Witness P. W. 14 Devesh testified that PSI
Mudgal was present with him as his reference is apparent on
Exh225. The seizure panchanama Exh132 bears signature of
PSI Mudgal which was prepared by P. W. 19 Mr. Sawai at
Nagpur on 30052008 while taking possession of seized
muddemal mentioned in Exh225 from PSI Mudgal.
e] Further P. W. 19 has prepared a separate
seizure panchanama of two parcels received through PSI
Mudgal vide Exh132, which is also corroborated to the
D 74 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
testimony of panch witness P. W. 6 Chandrashekhar Kapse.
Merely because he is a Police Mitra and assist police in their
investigations, his testimony cannot be discarded since nothing
has been elicited from his cross examination to discredit his
testimony.
Linkages of mobiles, SIMS and cash seized
from accused with the commission of crime.
103] Seizure of cash amount has not led
prosecution's case further in any direction.
104] As regards mobiles, P.W. 14 testified about
seizure of mobiles from the possession of accused accosted at
Madiyav and additional 2 Sims cards.
105] Pertinent to note that in seizure
panchanama Exh225, seizure of particular mobile set has been
mentioned with specific name of the accused from whom it was
seized. P.W. 14 Deveshsingh has proved the said seizure
panchanama Exh225 and arrest memo Exh226 before the
Court. He has also testified that the said articles seized were
sealed and he identified the mobile phones seized by him during
physical search of accused persons and also identified the seal
affixed on said mobile phones, wrapped in cover collectively. P.
W. 14 has also submitted on record station diary entry vide
Exh227 of police station Madiyav, regarding this seizure of
said articles which fortified the version of P. W. 14 regarding
D 75 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
arrest and seizure . I find, prosecution has duly proved seizure
and sealing of articles from the accused on their arrest at
Madiyav, beyond any reasonable doubt.
106] For traces of contact numbers, P. W. 14
testified that during investigation, he prepared inventory of
various mobile numbers saved in Phone Book of mobiles seized
from accused persons and prepared its panchanama vide
Exh152. Print out of said details of mobile phones seized from
accused and mobile numbers saved in it are placed on record
vide Exhs 306 to 315.
107] Accused no. 1 was having number
9326893805. He prepared hand written list of saved mobile
numbers and placed it on record vide Exh316.
108] On 07072008, he sent letter to
B. S. N. L., for securing IME No. of mobile phones of Rajaram
Gupta Exh317 and received its reply vide Exh318 on
11072008. Vide Exh318 Code number for searching of IME
Number was supplied. By using the said Code number, he
retrieved IME Numbers of mobile of Rajaram Gupta and found
it to be 354991002137836 and 350638207633507 . Its
panchanama was prepared vide Exh153.
109] He deputed Head Constable Pande, B. No.
1584, to collect necessary details of C. D. Rs., ownership of
mobile phones , SIM Cards which were seized from accused
D 76 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
persons by issuing letter vide Exh330.
110] Accordingly, Head Constable Pande went
Uttar Pradesh and submitted report vide Exh331 on
03082008 . C. D. Rs., were also submitted by Head Constable
Pande, which is placed on record along with report Exh331.
Accused No. Name of Accused Mobile Contact Nos
Exh. Nos.
1] Rakesh Khushwaha 9839478757 216
3] Baccha Nandbabu Mourya
9794358376 232
4] Shambhu Raikwar 9792578182 216 *
6] Amit Varma 9760256285 231
6] Amit Varma 9793854362 230
6] Amit Varma 9926821997 332
6] Amit Varma 9935729761 233
7] Yogendra Yadeo 9935047067 235
8] Chunbadh 9935811484 234
111] During investigation, it revealed that all
mobiles were procured by giving false addresses except one
which is shown on the address of father of accused No. 6 Amit
Varma, whose mobile contact number is 9935179076. He
prepared summary of intercommunication of these mobiles
D 77 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
running in 23 pages vide Article 14.
112] For proof of Call Data Reports,
Prosecution has examined Nodal Officers P. W. 13 Arun Mishra
of Vodafone Company, who presented before the Court Call
Details Reports , with IME Number, Cell ID Number regarding
mobile No. 9839478757 and 9792578182 alongwith covering
letter Exh216, in response to requisition letter received from
D. C. P. Zone – II, Nagpur vide Exh – 215 wherein call details
of said mobile numbers for the period from 01052008 to
28052008 were asked.
113] P. W. 13 also submitted the information
that Mobile Number 9839478757 belongs to one Rajeshwar,
House No. II, Amanpur, Chitrakut and Mobile No.
9792578182 is owned by Premnarayan, Village : Vikas Nagar,
Bharatpur, Chitrakut vide its letter dated 21072008
( Exh216) .
114] P. W. 15 Kaushalendra Tiwari, Nodal
Officer of Airtel Company, submitted covering letter vide
Exh229 along with CDRS in response to requisition letter
received vide 228A for giving necessary data of 7 mobile
number including names and addresses of persons holding said
mobile numbers and call details from 01052008 to
28052008. From the servers of Company he submitted
system generated information call details of mobile numbers
D 78 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
asked [1] 9794358376 vide Exh232, call details of mobile
number [4] 9935729761 vide Exh233, call details of mobile no.
[6] 9935811484 vide Exh234; call details of mobile no.
[5] 9935047067 vide Exh235 and call details of mobile number
[2] 9935179076 vide Exh236 along with requisite certificate.
He also submitted nil report of mobile number [3] 9793854362
vide Exh230 and nil report of mobile number [7] 9760256085
VIDE Exh231 .
115] P. W. 18 Rajiv Rajgopal Sharma, official
working in Reliance communication limited, who deposed
about maintenance of details of calls on its server situated at
Poona and Nagpur depending upon tower location. He testified
that his company received requisition letter from Crime Branch
asking details of mobile phone numbers 9371527820 and
9370549568 of Reliance Company for the period from
01052008 to 28052008. He provided information to Crime
Branch that mobile phone number 9371527820 is registered in
the name of Rajaram, R/o. Binaki, Nagpur and mobile number
9370549568 is registered in the name of Rajani Saini, Buddha
Nagar, Nagpur vide Exh 272 and highlighted contact between
accused persons for the period from 01052008 to 28052008.
116] Prosecution also examined P. W. 20 Sachin
Shinde, Nodal Officer of Idea Cellular Mobile. He testified
that in response to requisition letter dated 28062008 Exh343
D 79 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
issued by Lakadganj Police Station calling information regarding
Mobile No. 9822832564 on 30062008 . He submitted details
of occupier of said mobile phone numbers and his address to
Investigating Agency along with call details from 01052008
to 15052008. Details of Occupier of mobiles are filed vide
Exh344 and the CDRS, retrieved from servers system available
with Company, have already placed on record vide Exh281,
with requisite certificate vide Exh345.
He also produced on record system
generated CDR of mobile Nos. 9926821997 belonging to India
Cellular Mobile Company from Madhya Pradesh vide Exh332.
117] The gist of the investigation is that
Investigating Officer seized following mobile phones, as well as
SIM cards during investigation from the accused arrested at
Madiyav, District : Lucknow ( Uttar Pradesh ) whose CDRS are
placed on record .
Sr. No. Name of Accused Mobile Nos Exh. Nos of CDRS
1] Rakesh Khushwaha 9839478757 216
2] Baccha Nandbabu Mourya
9794358376 232
3] Shambhu Raikwar 9792578182 216 *
4] Amit Varma 9760256285 231
5] Amit Varma 9793854362 230
6] Yogendra Yadeo 9935047067 235
D 80 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
7] Chunbadh 9935811484 234
Sim Cards
1] Amit Varma 9926821997 332
2] Amit Varma 9935729761 233
Mobile Phones found in the tool box of
vehicle, seized in pursuant to his statement .
1] Sunil Sharma 9370549568 Exh271
118] Further Investigating Officer has seized
two mobiles from the possession of Rajaram Gupta whose
numbers was 9822832564 of Idea. The CDRs of this mobile
number is placed on record vide Exh281 and traces of other
mobile number could not be brought on record by Investigating
Agency.
119] Likewise one mobile was seized from Sau.
Gayatri R. Khushwah having No. 9371527820. The CRDs of it
are placed on record vide Ex270 . So also one mobile having
contact number 9822832564 was seized from Rajaram Gupta.
The CDRS of it are placed on record at Exh 281 .
120] Cross examination of P. W. Nos. 13, 15 ,
18 and 20 is tried to be scathed by the defence Counsel. I
find, seizure of mobiles from respective accused has been
proved without reasonable doubts. Reasonable inference can
be drawn that the contact number of the SIM inserted in the
D 81 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
mobile seized from the particular accused was being used by
that accused by operating that mobile instrument for all
material times .
121] As testified by P. W. 18 from record, it
revealed that four calls were made from mobile number
9371527820 seized from Gayatri Khushwaha to mobile number
9794358376 of Nand Babu four calls were received from
9839478757 of Rakesh Khushwaha to mobile number
9371527820; 29 calls were received from mobile No.
9792578182 of Shambhu to 9371 527820 from 06052008 to
14052008;
122] Further, 10 calls were received from mobile
no. 9935047067 of Amit Varma to 9371527820 from
01052008 to 05052008; 7 calls were received from mobile
No. 9844420643 of Ankit Shukla to 9371527820 from
02052008 to 05052008; Call details of mobile Phone No.
9371527820 and 9370549568 Sunil Sharma are placed on
record vide Exhs270 and 271 and certificate in support of
Exhs 270 and 271 is placed on record vide Exh273 .
123] The fact that instruments having Cell
Nos. 9839478757, 9794358376, 9792578182, 9760256285,
9793854362, 9935047067, 9935811484, 9370549568,
9371527820, 9822832564, were seized from accused No. 1
Rakesh Khushwaha, accused No. 3 Baccha Nandbabu Mourya,
D 82 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
accused No. 4 Shambhu Raikwar, accused No. 6 Amit Varma,
accused no. 6 Amit Varma, accused no. 7 Yogendra Yadeo and
accused no. 8 Chunbadh would lead to infer that they were
operating those contact numbers for communication.
124] Proceeding with further details of
communication as can be gathered from CDRs placed on
record and Article 14 summary of CDRS through mobile would
throw light on the close association amongst accused persons.
Accused No. 1 Rakesh Khushwaha having contact
number 9839478757 called
Accused no. 2 Sunil Sharma on his contact number
9370549568 for 7 times during the period from 17052008 to
21052008 ;
Accused no. 3 Nandbabu @ Baccha Mourya on his
contact number 9794358376 for 8 times during the period
from 18052008 to 21052008;
Accused no. 4 Shambhu Raikwar on his contact number
9792578182 for 15 times during the period from 16052008
to 19052008;
Accused no. 9 Omprakash Gupta on his contact
number 9822832564 for 24 times during the period from
20052008 to 27052008;
D 83 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Accused No. 1 Rakesh Khushwaha received total 33
calls on his contact No. 9839478757 during 16052008 to
23052008 and from Accused No. 6 Amit having contact No.
9226821997 for 5 times on 23052008.
Accused No. 2 Sunil Sharma having contact number
9370549568 called
Accused no. 1 Rakesh @ Pappu ( recovered from wife
of Rakesh @ Pappu ) on contact number 9371527820 for 4
times during the period from 06052008 to 08052008 ;
Accused no. 2 Sunil Sharma on his contact number
9370549568 received total 36 calls from contact no.
9371527820 during the period from 02052008 to
12052008
Accused no. 2 Sunil Sharma on 08052008
received 3 calls on his contact number 9370549568 from
accused no. 1 Pappu having contact no. 9326893805.
Accused No. 3 Nandbabu @ Baccha Mourya
having contact number 9794358376 called
Accused no. 1 Rakesh @ Pappu Khushwaha on
contact number 9371527820 for 2 times each on 03052008
and 04052008
Accused No. 3 Nandbabu @ Baccha Mourya
having contact number 9794358376 received 4 calls from
D 84 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Shambhu Raikwad having contact no. 9792578182 on
05052008; received 2 calls from Contact no. 9935179076
( suspect ) on 05052008; received 28 calls from accused no.
9 Omprakash Gupta having contact no. 9822832564 during the
period 18052008 to 25052008; received total 21 calls
from accused No. 1 Rakesh Khushwah having contact no.
9839478757 from 18052008 to 27052008.
Accused No. 4 Shambhu Raikwad having contact
number 9792578182 contacted
Accused no. 1 Rakesh @ Pappu having contact no.
9326893805 on 05052008 for 3 times; and on 09052008
for 6 times.
Accused No. 1 Rakesh @ Pappu Khushwaha having
contact No. 9839478757 for 43 times during 17052008 to
25052008
Accused no. 3 Nandbabu @ Baccha having contact no.
9794358376 on 05052008 for 4 times and on 06052008 for
2 times; and for 30 times during the period from 18052008 to
27052008;
Accused No. 5 Ankit on his contact no. 9844420643
for 1 time on 05052008; for 1 time on 16052008 , for two
times on 17052008 and on 19052008 for 4 times.
D 85 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Accused no. 6 Amit Varma having contact No.
9226821997 for 2 times on14052008 and for 5 times on
15052008.
Contact No. 9371527820 for 1 time on 05052008,
for 3 times on 06052008; for 4 times on 09052008, for 11
times on 10052008, for 1 time on 11052008 and for 7 times
on 12052008;
Contact No. 9935047067 (suspect sim ) for 1 time
on 05052008, for 3 times on 06052008, for 5 times on
09052008 and for 2 times on 10052008.
Accused No. 4 Shambhu received calls from
Contact No. 9371527820 for 7 times during the
period from 05052008 to 07052008; for 1 time each on
09052008 and 10052008, for 2 times on 12052008, 4 calls
each on 16052008 and 17052008.
Accused No. 1 Rakesh @ Pappu having contact No.
9839478757 for 36 during period from 16052008 to
24052008 and for 2 times on 27052008,
Accused No. 1 Baccha for 1 time each on 20052008
and 21052008 and for 3 times on 23052008.
Accused No. 5 Ankit for 8 times on 09052008, for 3
times on 10052008; and 2 calls on 16052008
D 86 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Accused no. 9 Omprakash Gupta on 08052008 for
5 times; for 2 times on 26052008,
Accused no. 6 Amit having contact no. 9793854362
for 3 times each on 16052008 and 23052008.
Accused no. 6 Amit having contact no. 9226821997
for 4 times from 15052008 to 17052008
Accused No. 9 Gajju Gupta for 5 times on
08052008, 2 times on 26052008 and for 1 time on
27052008.
Contact No. 9935179076 on 09052008 for 4 times
and for 3 times on 10052008
Accused No. 5 Ankit Shukla having contact No.
9844420643 called
Accused No. 4 Shambhu on 09052008 for 8 times,
on 10052008 for 3 times, and on 16052008 for 2 times.
Accused No. 6 Amit Varma having contact no.
9226821997 contacted
Accused No. 4 Shambhu for 1 time on 07052008,
for 2 times on 14052008 and for 1 time on 15052008
Accused no. 6 Amit Varma on his contact no.
9935729761 received 2 calls on 22052008 from accused no. 1
Rakesh Khushwaha having contact no. 9839478757
D 87 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
From ( Suspect ) Contact No. 9935179076 caller
contacted
Yogendra Yadeo having contact No. 9935047067 for
2 times on 02052008;
Contact No. 9371527820 for 2 times on 02052008
Accused No. 1 Pappu for 3 times on 09052008
having contact No. 9326893805 and for 2 times on contact
no. 9839478757 for two times
Accused No. 1 Pappu having contact No. 9839478757
for two times on 09502008, for 1 time each on 10052008
and 11052008, for 1 time on 19052008 and for two times
each on 20052008 and 23052008
Accused No.1 Pappu having contact No. 9326893805
for 3 times on 090508,
( Suspect ) Contact No. 9935179076 received calls
from Accused no. 1 Pappu having contact no. 9839478757
for 2 times on 11052008, for 4 times each on 18052008
and 19052008
Accused No. 4 Shambhu having contact no.
9792578182 for 3 times on 06052008, for 4 times on
09052008 and for 1 time each on 10052008 and
11052008.
D 88 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
From ( Suspect ) contact No. 9760256085 caller
contacted Accused No. 7 Yogendra Yadeo having contact no.
9935047067 for 2 times on02052008
To contact No. 9371527820 for 2 times on
02052008, and for 6 times between 09052008 to 11052008
Accused No. 1 Rakesh @ Pappu having contact No.
9839478757 for total 4 times from 09052008 to 11052008,
for 2 times on 23052008 and for 1 time each on 19052008
and 26052008,
Accused No. 1 having contact No. 9326893805 for
3 times on 09052008
Accused No. 4 Shambhu having contact No.
9792578182 for 3 times on 09052008
Accused No. 5 Ankit for 1 time each on 09052008
and 10052008
( Suspect ) Contact No. 9760256085 received
calls from Accused No. 1 Pappu having contact No.
9839478757 for 4 times each on 18052008 and 19052008;
Accused No. 4 Shambhu for 3 times on 06052008
and for 6 times during 09052008 to 11052008.
This reflects that accused were in close
association with each other.
D 89 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
125] Learned Counsel for accused no. 1
vehemently argued that the call details reports produced on
record are manipulated and tampered document. Many entries
regarding incoming and outgoing calls are not matching with
each other.
Learned Counsel for the accused by
submitting written arguments have submitted in tabular form
that on dates 352008, 452008, 552008, 652008,
752008, 2252008, 2352008, and 2552008, out going
calls though registered respective incoming calls are not
registered at all.
126] In my view, to discredit the correctness and
genuineness of the call data reports produced on record, learned
defence Counsels would have put forward necessary suggestions
to the concerned witnesses. Had there been some specific
denials or specific suggestions of fabrication of print out, the
prosecution would have proved it through any technical expert.
127] Print out pertaining to call details exhibited
by prosecution are of regularity and continuity. That, it would
be legitimate to draw presumption that system was functional
and the output was produced by computer in regular use. By
showing few errors in the call data reports, errors are tried to
be magnified by defence to discredit the entire document, thus
unwarranted.
D 90 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
128] It is submitted that unawareness, when the
SIM card was issued to applicant or time of printing of the said
data entries or non mentioning of details of crime number,
police station and date of issuance on the date entry itself no
way affects the credibility of call data reports placed on record.
129] Learned Counsel for the defence argued
that prosecution has utterly failed to prove that mobile phones
and SIM Numbers were procured by the accused by producing
false documents and submitting false addressed.
130] I find periphery of scrutiny of Court is
restricted whether these mobile phones as alleged by the
prosecution were seized from the possession of accused persons
and whether they were used for the communication interse
between the accused during that period.
131] Learned Counsel for the accused
vehemently argued that since SIM numbers were not
deactivated by respective Companies , the claim of the
prosecution that the SIMS were obtained on false address is
false and concocted.
132] In my view, activation and deactivation is
the consideration of the Company. The CDRS have restricted
relevance to trace out communication between the parties.
133] It is submitted that the requisite certificate
of 65B under Information Technology Act, though prepared in
D 91 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
the Court before entering into witness box, without any seal of
office / Company on general paper no way affects its credibility
and authenticity since witnesses have testified that they are
authorized persons of their Companies and deposed before the
Court in those capacity only. The explanation that he supposes
that he requires to sign such certificate before the Court cannot
be doubted .
134] As such, said CDRs filed by P. W. Nos. 13,
15, 18 and 20 being system generated data certified by the
authorized persons / officers of respective Companies,
disclosing communication between the parties is reliable and
authentic piece of evidence.
135] In my view, prosecution has successfully
proved fact of communication interse between the parties
through CDRS beyond any reasonable doubt.
136] I agree with the submissions of the
learned District Government Pleader that call details placed
on record show that communication was made
between the phone numbers mentioned above interse
before the commission of the crime and after commission
of crime. Said communications are the reflection of the
fact of commission of dacoity with conspiracy hatched by
accused .
D 92 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
137] After scrutinizing the evidence against
accused persons with regards to incriminating circumstances of
i] Balletic Report
ii] Call Data Reports
138] I would like to scrutinize other
incriminating circumstances brought on record by prosecution
to establish the guilt of the accused for the offence alleged.
139] It is submitted that the prosecution bases
its claim on direct and circumstantial evidence against accused
nos. 3, 4, 5, 6 and 7 and rests its claim against accused Nos. 1,
2, 8, 9 and 10 on circumstantial evidence.
140] To scrutinize the evidence against accused
nos. 3, 4, 5, 6, 7, the prosecution based its case on the oral
testimonies of P. W. 1 to P. W. 4.
141] Analyzing ocular evidence first, it is
submitted that to prove the offence alleged against the
accused nos. 1 to 8 under Section 120B, under Section 396,
under Sections 395 r/w. 397 of Indian Penal Code , ingredients
of offences is necessary to be seen.
142] 120A : Criminal Conspiracy – When two
or more persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means , suchan
agreement is designated a criminal conspiracy;
D 93 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Provided that no agreement except an
agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by
one or more parties to such agreement in pursuance thereof.
Explanation It is immaterial whether the illegal act
is the ultimate object of such agreement, or is merely incidental
to that object. Punishment of which is prescribed under Section
120B of Indian Penal Code.
143] Section 391 : Dacoity : When five or
more persons conjointly commit or attempt to commit a
robbery, or where the whole number of persons conjointly
committing or attempting to commit a robbery and persons
present and aiding such commission or attempt, amount to five
or more, every person so committing, attempting or aiding, is
said to commit “Dacoity” .
144] To prove the offence under Sections 396 of
Indian Penal Code against accused Nos. 1 to 8
Firstly, prosecution has to prove that 5 or
more persons conjointly committed dacoity and any of them
committed murder of Suresh Lakhotia and Sushil Lakhotia
during commission of dacoity ; to hold everyone of those
persons guilty of offence.
Secondly, to prove offence under Section
395 read with Section 397 of Indian Penal Code, prosecution
has to prove that 5 or more persons while committing dacoity,
D 94 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
used deadly weapons or caused grievous hurt to Shailesh
Lakhotia or attempted to cause death or grievous hurt to
Shailesh Lakhotia , to hold everyone of those persons guilty of
offence .
145] To prove the offence against the accused
prosecution mainly relied upon ocular evidence . Prosecution
has examined P. W. 1 Ritesh Kothari, P. W. 2 Gopal Sharma,
P. W. 3 Devesh Paliwal and P. W. 4 Shailesh Lakhotia, eye
witnesses .
146] It would be appropriate to take resume of
the evidence led by the prosecution. P. W. 1 Ritesh Kothari in
his substantive evidence regarding murderous assault
deposed that, he was working for Suresh Lakhotia and
Shailesh Lakhotia in their office situated at Flat No. 205,
Gayatri Lok Apartment, Ambedkar Chowk, Nagpur. Lakhotia
brothers were dealing in the business of Saw Mill, Money
Transfer business.
a] On 08052008 at 530 P. M. he was
present in the office along with Sushil Lakhotia, Shailesh
Lakhotia, Paliwal and Sharmaji.
b] As per direction of Shailesh Lakhotia, he
started laptop kept in another room and was engaged with the
operations. Suddenly, one person came along with Suresh
Lakhotia by pointing the gun on his throat. At the same time,
other three or more persons brought Sushil Lakhotia, Shailesh
D 95 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Lakhotia , Paliwalji and Sharmaji in the said room. 3 to 4
persons were having guns in their hands and one person was
having knife.
c] The person having knife pointed out the
said knife to him. He requested him not to do anything to him.
All other assailants then asked them to sit , accordingly thy sat
down.
d] Those assailants asked keys of Godrej
Almirah to Suresh Lakhotia and Shailesh Lakhotia, and they
showed their unawareness about keys. At that time, those
assailants took a bag containing money, which was brought by
Suresh Lakhotia.
e] One culprit tried to snatch golden chain of
Suresh. Suresh was protesting that assailant and a gun was
fired towards him. As soon as bullet was fired on Suresh both
Sushil Lakhotia and Shailesh Lakhotia shouted loudly.
However, they both were taken towards hall. At that time,
assailants who were muffled their faces at the initial stage, their
faces were opened as the mufflers were removed. As soon as
said assailants took away Sushil and Shailesh Lakhotia towards
hall, he and Sharmaji closed the door of their room being
frightened and shouted from balcony for help.
f] According to P. W. 1 Ritesh Kothari, he
heard noise of heavy firing from hall side. When Sharma could
D 96 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
see two persons while running by motorbike. Thereafter, they
opened the door and came towards hall and found that Sushil
Lakhotia was lying on the stair case having injury over his
Chest and Shailesh Lakhotia was found in the passage having
injuries over his leg.
g] As such testimony of P. W. 1 Ritesh
Kothari is important with respect to witnessing death of
Suresh inside that room . Since the room was closed , once the
two assailants were pushed out side from the room to hall by
Sushil and Shailesh and at this moment, Ritesh Kothari,
Sharmaji, Paliwalji and Suresh were in that room .
h] According to P. W. 1 Ritesh Kothari,
assailants were of the age group 25 to 30 having height of 5.6
ft. P. W. 1 Rakesh Kothari lodged report vide Exh93 and
accordingly, first information report was registered vide Exh94.
i] Before the Court this witness identified
accused no. 3 as a person having gun in his hand and who had a
scuffled with Suresh Lakhotia when Suresh was fired. He also
identified accused no. 3 as a person who fired Suresh Lakhotia.
This witness identified Accused no. 5 as a person having gun in
his hand, accused no. 7 having knife in his hand and who
pointed had knife to this witness at the time of commission of
crime. This witness also identified revolver articles – 1, 2, 3,
and 4 and article 74 blade of knife and informed the Court that
D 97 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
accused no. 7 has pointed same knife to him in the commission
of crime.
147] P. W. 2 Gopal Sharma deposed about
murderous assault dated 08052008 at about 500 to 515 P.
M. He along with Shailesh Lakhotia, Sushil Lakhotia, Paliwalji
were present in the hall and he was waiting for payment of
money as per the instruction of Shailesh Lakhotia.
a] According to him, after sometime, Suresh
Lakhotia entered in the office along with one bag and went to
another room, kept it and came in hall again. As soon as
Suresh Lakhotia came in the hall, suddenly three persons
carrying revolvers and bag, with muffled faces entered in the
office. Within a fraction of second, two more assailants one
having Pistol and another having knife entered in the office of
Lakhotia Brothers. Out of those three persons, one person
broke wire of telephone and slapped Shailesh. Some other
assailant snatched mobile phone of Shailesh and collected other
mobile phones lying on the table.
b] One of the assailants having revolver
snatched his mobile phone and took him , Sushil Lakhotia and
other persons present in the hall, inside the room. They made
them to sit on the floor and asked for keys from Suresh
Lakhotia. At that time, two persons having revolver and one
person having knife were inside the room. Suresh Lakhotia
D 98 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
replied them that he is not having keys of cupboard. At that
time that scuffling took place between Suresh and person
having revolver. At that time, that assailant also tried to snatch
golden chain of Suresh. When that assailant fired on Suresh
on his Chest, Suresh Lakhotia got injury and sat down.
c] As soon as firing took place, Shailesh and
Sushil pushed those persons out side the room towards hall.
That time, muffled faces of assailants got opened. He asked to
close the door of the room and accordingly, closed the room
from inside.
d] They came to gallery and shouted Chor
Chor. They heard noise of firing from hall side. They saw
many persons gathered near the building and 5 assailants ran
away by two motorcycle, out of one, it was Hero Honda
Splender.
e] They came out of the room and saw Sushil
Lakhotia in a passage lying on the floor in inured condition in
the pool of blood on his Chest and just after 3 to 4 stair cases,
Shailesh was also standing with bleeding injury on his leg.
f] P. W. 2 Gopal Sharma also reiterated about
collection of cash fallen on ground and shifted it. He also
informed the incident to his employer and returned back
to his office.
D 99 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
g] In short, P. W. 2 Gopal Sharma witnessed
the death of Suresh by firing , but as he has closed the door, he
could not witnessed the murderous assault made by the
assailants on Sushil Lakhotia and Shailesh Lakhotia.
h] Before the Court this witness has identified
accused no. 3 as a person having revolver and who fired on
Suresh Lakhotia at the time of commission of crime. This
witness also identified accused no. 5 as a person having
revolver in his hand. He also identified accused no. 7 as a
person having knife in his hand at the time of commission of
crime. He also identified articles 1, 2, 3 and 4 revolvers and
article no. 74 knife stating that assailants were holding said
weapons at the time of crime.
148] P. W. 3 Devesh Paliwal also deposed
about murderous assault occurred on 08052008 in the office
of Lakhotia brothers at about 445 P. M. stating that Shailesh
Lakhotia and Sushil Lakhotia along with office boy Shri
Kothari and one Sharmaji were present in the office. Suresh
Lakhotia came from outside carrying one back ( locally known
as Thaili ). Suresh Lakhotia took bag inside the room. When
he was about to come from inside room, two persons entered in
the office of Lakhotia Brothers having revolvers in their hands.
One of them pointed out the revolvers at his Ear, snatched his
bag and mobile phone and other persons pointed out revolver
D 100 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
towards Shailesh Lakhotia, broke down telephone wires.
Thereafter, 23 assailants , one carrying knife and other
carrying revolver entered in the office of Lakhotia Brothers.
Thereafter those assailants asked them to go inside room.
Assailants took all of them to inside room. According to him,
all assailants entered in the office of Lakhotia Brothers in
muffled faces, however lateron, their muffled faces got opened.
a] He reiterated about making them to sit on
the ground and pointing out the revolver by one of the
assailant to Suresh Lakhotia and asking about keys of cupboard
from him. He also deposed that on denial, assailant pointed
out revolver on Suresh and tried to snatch his golden chain
from his neck, to which Suresh resisted saying “ ekjsxk D;k ” and
at the same time that assailant fired on Suresh Lakhotia and
Suresh collapsed.
b] P. W. 3 Devesh Paliwal further deposed that
Sushil Lakhotia and Shailesh Lakhotia rushed towards
assailants and pushed them towards hall. Due to firing Suresh
collapsed on ground. Suresh Lakhotia sought his help and
asked him to call police. He kept head of Suresh Lakhotia on
the bed, which was lying nearby. At that time, he , Suresh
Lakhotia, Ritesh Kothari and Sharmaji were in the room and
they closed the door of the room inside. They went towards
balcony and shouted for help and tried to dial 100 number.
D 101 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
c] They heard noise of firing and also saw from
the balcony while running the assailants on their motorcycles.
d] They all came out of the room in the hall
and contacted his boss from land line and left the office of
Lakhotia Brothers. He deposed about his witnessing Sushil
Lakhotia at the beginning of the stair case in collapsed condition
and Shailesh Lakhotia having some injury on his person. Due
to sudden and terific incident, he waited for a while, took his
motorcycle and went to his house and intimated his superior
and on superiors instructions, he went to the police station and
narrated the incident.
e] Before the Court, this witness has identified
accused no. 3 as a person having revolver in his hand and who
has fired on Suresh Lakhotia. He identified accused no. 4 as a
person having knife in his hand at the time of commission of
crime and also identified accused no. 5 having revolver in his
hand. He stated that he has identified these accused during
identification parade also. He also identified accused no. 6
first time in the Court stating that accused no. 6 was carrying
pistol in his hands. He identified articles 1, 2, 3 and 4
Revolvers and article No. 74 knife, before the Court stating that
the assailants were holding said weapons in their hands at the
time of commission of crime.
D 102 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
149] P. W. 4 Shailesh Lakhotia in his
substantive evidence deposed that he reiterated the fact that
at Flat No. 205, Gayatri Apartment, Ambedkar Chowk, Nagpur,
on 08052008 he along with his two brothers Sushil and
Suresh Lakhotia, Office boy, Ritesh Kothari , one Palwalji and
Sharmaji were present. His brother Suresh Lakhotia came from
outside carrying one Thaili in his hand, went in side the room,
kept it in the room. As soon as, Suresh came from inside room ,
two persons entered in the office and snatched away telephone
from him and broke telephone line and slapped him.
Thereafter, three more persons entered. Out of five assailants,
four assailants were holding revolver and remaining was having
knife. By pointing out a revolver, those assailants took them
towards inside room and made them to sit on their knees.
When he was about to sit, one of them hit him on his head
saying that “rqEgs vyxls cksyuk iMsxk D;k ” & asked for cash. As such,
Suresh Lakhotia handed over bag containing cash to them.
a] P. W. 4 further deposed about demand of
key by assailants and coming out of golden chain of Suresh out
of his shirt. He further deposed that assailants tried to snatch
golden chain , to which Suresh Lakhotia resisted and thereafter
scuffling took place in between Suresh & assailant. He further
deposed that suddenly firing took place and Suresh Lakhotia
collapsed on the spot by sustaining bullet injury on his Chest.
D 103 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
b] As soon as firing took place, he and Sushil rushed
towards assailants and pushed them outside the room. As he
along with Sushil pushed the assailants, one of the assailants
collapsed on a cooler kept in the office and Sushil caught hold
one of the asssailants, who was transferring the cash from one
bag to another.
c] The assailants to whom Sushil Lakhotia
caught hold was having revolver in his hand and at that time,
the person having knife was also present.
d] P. W. 4 further deposed that he caught
hold one of the assailants , took him towards kitchen and
caught hold him tightly, who had revolver in his hand. On
searching something to hit, he hit the said assailant by earthen
pot on his head.
e] At the relevant time, another assailant
rushed there and asked another assailant who was caught hold
by him to leave the place as early. The assailant to whom he
had caught hold fired on his leg and ran away. He could not
succeed to catch hold hi since he was injured by leg. At the
same time, Sushil also reached there and collapsed outside the
gate, due to bullet injuries on his person.
f] Before the Court, this witness identified
accused no. 3 as a person having revolver and Kadtus in his
hand and injured him on his leg. He also identified accused
D 104 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
no. 4 Shambhu as a person who was transferring cash from one
bag to another and who was caught hold by Sushil Lakhotia and
also identified him as a person holding gun in his hand at the
time of commission of the crime. He identified accused no. 5
Ankit as a person who fired with the help of revolver on Suresh
Lakhotia. He identified accused no. 6 Amit Varma as a person
holding revolver and who slapped him at the time of entry in
the office. He identified accused no. 5 Yogendra Yadeo as a
person holding knife and who had wore a hat at the time of
incident. He identified Articles 1, 2, 3 and 4 as a Revolvers and
article No. 74 knife before the Court stating that assailants
were holding these weapons at the time of commission of the
crime.
Cross examination of the witnesses
were mainly focused on the following points :
150] That, nature of omissions and contradictions
makes prosecution's story unbelievable and presence of alleged
eye witnesses on the scene of occurrence fishy.
Learned Counsels argued that sequence of
entry of assailants and events deposed by alleged eye witnesses
are in contradiction. They submitted that prosecution witnesses
failed to depose exact number of assailants . Witnesses could
not even describe weapons in particular hold by assailants .
Sequence of events is not stated uniformly by witnesses.
D 105 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
There is variance in testimonies regarding removal of
mufflers from the faces of assailants. Such contradictions
makes the story of prosecution unbelievable.
In answer to it, it is submitted that
contradictions are bound to occur in the testimonies
considering the time lapsed between the incident and evidence
before the Court. It is also to be seen that each person may
have different observation capacity and considering horror of
the incidence, it cannot be expected that witness should give
every minute detailed about the incidence with photographic
memory. In view of principle laid down by Hon'ble Apex Court
in the case of Gurubachan Singh –Vs Satpalsingh reported
in 1990 (1) SCC 445, in which it is laid down by the Hon’ble
Apex Court that
"In fact some contradictions are bound to
happen considering the time lapse between
the incident and evidence before the Court.
Taking into consideration different
observation capacity and horror of the
incident it cannot be expected that
witnesses should give each and every
minute details about the incident.
I find, though there is variance in sequence
of entry, testimonies of the witnesses regarding entry of 5
assailants in the office remained unshaken. Said variance do
D 106 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
not cut roots of the prosecution.
151] That, first information report is ante
time
Learned defence Counsel on the line of
crossexamination, vehemently argued that first information
report Exh93 is antetime and it was not reported by Ritesh
Kothari. It was argued simultaneously that recitals of spot
panchanama being information given first in point of time,
should be treated as first information report in preference to
alleged first information report. The learned Counsel for the
accused placed reliance in a case of] Nageshwar S Choube Vs
State of Maharashtra reported in 1973 MH L J 144 (SC) .
In this case investigation of offence was
already started on the basis of information. The information
was given to police with intention to bring them to the scene of
offence . It is submitted that record transpires that during the
investigation by P. W. 19 Shri Sawai, Police Inspector , P. W. 1
Ritesh was sent for lodging complaint in the police station. As
such, argument of learned defence Counsel first information
report being ante time is unwarranted.
Mere fact that the information was given
to the Investigating Officer on their arrival on the spot does not
cloth it with the character of first information report since it is
not recorded with satisfaction of requirement of Section 154 of
Code of Criminal Procedure. As such, only Exh93 can be
D 107 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
treated as first information report and not spot panchanama
Exh121. Registration of first information report is not a
condition precedent to set in motion criminal investigation.
152] That, Exh336 of spot panchanama : as
regards argument advanced by learned defence counsels
regarding portion mark A of spot panchanama ( Proved as
Exh336), it is submitted that moto behind drawing spot
panchanama is to collect the traces of evidence from the scene
of offence. Statements of the witnesses are recorded for
throwing light the manner in which the crime has taken place.
Unwarranted recitals made in the spot
panchanama that there were 4 accused persons would not
discredit the evidence of witnesses before the Court who
testified about presence of 5 persons on the spot of incident.
153] That, unfolding of narration
The learned Counsel for accused no. 6 on
the line of cross examination vehemently argued that P. W. 2
Gopal Sharma, has testified that he informed the incident on
phone to his employer and went to his office, immediately after
occurrence. Thus, was incumbent upon prosecution to examine
employer of P. W. 2 Gopal Sharma to prove unfolding of
narration. He placed his reliance on a case of Ashraf Hussain
Shah – Vs State of Maharashtra reported in 1996
EQ(BOM)0183, in which it is held that –
D 108 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
“ Prosecution's stand vitiated because of non
examination of witness whose testimony was
essential for unfolding of narrative.”
In the aforesaid case in the back drop of
prosecution under Section 302 of Indian Penal Code, conduct
of P. W. 2 Mahesh was scanned that had he been present on
the spot, he would have lodged report in police station while
proceeding towards house of Aru Surve along with friend
Saste. In this circumstance examination of Aru Surve is
considered essential for unfolding of narration.
Taking into consideration present set of facts
where office boy Ritesh , injured witness Shailesh were
examined, presence of Gopal Sharma is corroborated by these
witnesses through their testimonies on the spot of incident at
the relevant time, I find, Gopal is genuine witness and non
examination of his employer is inconsequential. Further it
needs to be stated here that the case is not based on solitary
eye witness.
154] That delay in recording statement
Learned Advocates vehemently argued on the
point of delay in recording statement. They submitted that
statement of Shailesh was recorded at belated stage. Medical
treatment cannot be a ground for delayed recording. Likewise,
statement of Devesh Paliwal was also shown to be recorded on
10052008. P. W. 3 Devesh Paliwal was available for
D 109 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
statement, in spite of that, his statement was not recorded . The
explanation that he went to police station and narrated the
incident to two persons available there , however they did not
pay any serious attention to his information thinking that he is
lodging report of theft of mobile is illogical and unacceptable.
They submitted that from the tone and tenure of the testimony
of witnesses, it can be inferred that said so called eye witnesses
were latter introduced by police after due deliberations to
support the case as eye witnesses.
I submit that the process of investigation as
surfacing on record through testimony of investigating officer, I
submit that statements though recorded after 2 days of incident
are not deliberate. Witness Paliwal has stated that he was
inquired preliminary by Police Official and was also called for
inquiry on next day speaks that the investigation process was
conscious and continuous . There is no circumstance to
suggest that investigation was deliberately made to shape the
prosecution’s case. Furthermore, identity of accused as
suspects in the present case is not the consequences of any
delay. As such, two days delay in recording evidence cannot be
considered as infirmity in the prosecution. Hence, such delayed
recording of statement is not fatal to the prosecution case.
155] That, Non seizure of blood stained clothes
Learned Advocates for the accused persons
placed reliance upon ratio laid down in
D 110 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
1] Kashinath Palkar – Vs State of Maharashtra
reported in 1996 (1) BCR 33 in which
it has been held that
“ Body in a pool of blood said to be dragged at
distance, but spot panchanama not making any
mention about blood stains on the earth, it
creates great doubt about the place of incident.”
2] Anwar Vs State of Maharashtra,
reported in 2007 (2) Cri 486 Bombay in
which it has observed that
“ Blood smeared clothes of witnesses were not
seized though police officials claimed to have
reached the spot and recorded statements of
witnesses, conviction could not be sustained.”
3] Lakshmi Singh and others – Vs State of Bihar
reported in AIR 1976 ( S. C. ), 2263 in which it has
been observed that
“ Blood stained clothes from the place of
occurrence not sent to chemical examiner, it
indicates that defence version may be true”
learned Counsels argued that presence of witnesses
P. W. 1 to P. W. 4 on the spot of incident itself is suspicious
since blood stained clothes of witnesses were not seized. The
version of witnesses that he lifted head of Suresh and kept it on
D 111 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Gadi, it is suspicious that such blood stains on Gadi went
unnoticed. The said argument do not hold any water, since
blood stained article was seized from the spot of incident.
Learned D. G. P. for the State placed reliance
upon the ratio laid down in Authority of Dharmavir Vs State of
Uttar Pradesh and contended that mere fact that eye witness P.
W. 1 to P. W. 3 did not suffer any injury will not make their
evidence untrustworthy. Presence of P. W. 4 on the spot with
injured condition cannot be doubted. He has given clear and
detail account of incident. Thus, absence of blood stains in the
facts and circumstances of the present case cannot be said to be
fatal to the case of the prosecution.
It is respectfully submitted that P. W. 17 Mr.
Gosawi has reached on the spot of incident immediately and has
shifted victims Suresh and Sushil Lakhotia to the hospital. The
incriminating articles which were seized from the spot of
incident were stained with blood. In such circumstance, non
seizure of clothes of P. W. 1 to P. W. 4 by the Investigating
Officer would no way affect the case of the prosecution .
156] That, Exhibit334, contradictions in
statements cuts roots of prosecution case.
Learned Advocates for the accused
strenuously argued on Exh334. Exh334 as recorded in the
statement of Ritesh it is mentioned that Paliwalji, Sharmaji
were sat with me (him) in the inside room is proved by
D 112 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Investigating Officer. I find, mere contradiction with police
statement of witness is not admission of prosecution case since
contents of such contradictions are denied in substantive
evidence by witnesses. Significantly, in spite of having
opportunity, defence Counsels have failed to confront other
witnesses Gopal Sharma and Devesh Paliwal with said part of
testimony Exh334 appearing in the statement of P. W. 1 Ritesh.
157] Taking into account admissions and denials of
witnesses, on appreciation of oral evidence of P. W. 1 to
P. W. 4, it needs to be mentioned conclusively that, testimony
of P. W. 1 Ritesh Kothari is important with respect to
witnessing firing by assailants on Suresh resulting into death of
Suresh occurred in the inside room. Other eye witnesses P. W.
2 Gopal Sharma, P. W. 3 Devesh Paliwal and P. W. 4 Shailesh
Lakhotia reiterated facts of bringing them on the point of
weapon by assailants, making them to sit, questioning about
keys, snatching of golden chain from the neck of Suresh and
firing by assailants on Suresh Lakhotia, inside the room. As
such the versions of eye witnesses P. W. 1 to P. W. 4 and
injured Shaileh Lakhotia have proved that death of Suresh
Lakhotia was caused due to bullet injuries fired by assailants.
158] From the testimony of injured witness
Shailesh it reveals that after scuffle with assailants in hall,
Sushil Lakhotia sustained bullet injuries on his person and he
collapsed out side the gate .
D 113 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
159] P. W. 4 injured Shailesh Lakhotia has
categorically deposed that in a retaliation after firing in the
inside room on Suresh, assailants were pushed by him and
Sushil Lakhotia and in further scuffle was taken place in a hall
and thereafter in a kitchen. He also deposed that one of the
assailants fired on Shailesh and he sustained bullet injuries on
his leg. As such, through the testimony of Shailesh Lakhotia
and supporting medical evidence put forth by Dr. Chandak,
which has been discussed in detail, prosecution has proved that
one of the assailants caused grievous hurt to Shailesh Lakhotia
on his leg and attempted to commit his murder by firing.
160] Summarily, it is stated that
A] P. W. 1 to P. W. 4 equivocally stated
about entry of 5 persons holding knife , revolvers and guns in
the office of Lakhotia brothers . Though report Exh93 lodged
by Ritesh Kothari, reflects entry of 4 persons , his oral
testimony stating entry of 5 persons is corroborated by other
eye witnesses P. W. 2 to P. W. 4. As such prosecution has
proved beyond reasonable doubt that five and more persons
holding deadly weapons, firearms and knife, conjointly
committed the crime.
B] Testimonies of P. W. 1 to 4 would reflect
that on the point of weapon by putting Suresh Lakhotia in fear
they induced him to deliver keys of Godrej Almirah and also
attempted to snatch golden chain from the neck of Suresh
D 114 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Lakhotia. P. W. 1 Ritesh Kothari and P. W. 4 injured Shailesh
Lakhotia have testified that on the day of incident, Suresh
Lakhotia came in the office having bag containing cash . Since
the incidence had occurred within few minutes after placing
Thaili in the inside room by Suresh Lakhotia ( deceased ) ,
mention of exact amount looted in a crime by the assailants
cannot be expected. They both P. W. 1 and P. W. 4 testified
that assailants snatched golden chain and took away that
money bag ( Thaili ) and as such proved the extortion by
assailants .
C] Evidence surfacing on record shows that
assailants conspired and reached to spot of occurrence holding
revolvers and knife in their hands . Suresh was fired and
murdered in the inside room of office of Lakhotia Brothers .
Assailants, Shailesh ( injured ) and Sushil had scuffled in a hall
. One of the assailants fired Sushil and committed his murder
in a retaliation in the hall. Several other injuries along with
the fire arm injuries observed by Medical Officer on the person
Sushil, speaks that assailants came to place of occurrence not
only to commit dacoity, but also had requisite common object
to kill Suresh and Sushil Lakhotia. Not only this because of
alert of accompanied assailant,while leaving spot of occurrence,
assailant fired bullet on the person of Shailesh causing serious
injury to his leg, reflect that murders were committed
intentionally in furtherance of common intention of all.
D 115 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
On the basis of this material brought on
record, prosecution has proved commission of dacoity and
intentional murders of Suresh and Sushil Lakhotia on
08052008 between 500 to 530 P. M. in the office of
Lakhotia Brothers beyond reasonable doubt.
161] Principle underlying Section 396 is that
Under Section 396, if any one of the dacoity commits murder in
so committing dacoity , every one of the dacoit is liable to be
punished. If a dacoit in a progress and in pursuance of the
commission of dacoity commits a murder, all his companion
who are participating in the commission of same dacoity is
guilty of offence although he may have no participation in
dacoity. Murder may or may not have been within
contemplation of all or some of them when the dacoity was
planned but actual participant and abettor also would be liable
for punishment .
162] Who are culprits is crux of the matter
A] Identification of the assailants was attacked by the
defence mainly on the ground that identity of assailants is
impossible since assailants had muffled their faces and
suspects were shown to the witnesses , hence, conduction of
identification parade is a farce.
B] Learned Counsel for the accused Nos. 1, and 3 to 7
vehemently argued that identification of assailants is impossible
D 116 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
since the assailants had muffled their faces. Complaint Exh93
lodged by P. W. 1 Ritesh Kothari is silent about the
information that mufflers of assailants were fallen down from
their faces at the time of incidence.
C] P. W. 2 has testified that at the relevant time, muffled
faces of assailants got opened. Suddenly, he asked to close the
door and accordingly Ritesh Kothari closed the door of the room
from inside. Said coming of mufflers is in the form of
improvement. The learned Advocate submitted from the cross
examination of P. W. 2 Sharma that he has not stated to
police in any statement that firing took place and Shailesh
and Sushil pushed the assailants out side the room towards
hall, muffled faces of the assailants got opened.
D] P. W. 3 has put forth different version that when
those persons entered in the office, he found them in muffled
faces, however lateron their faces got opened .
E] Learned Counsel for accused nos. 1 and 3 to 7
further submitted that P. W. 4 Shailesh has not made any
mention about muffling of faces , which facilitated him to
know and see features of the assailants, but in the
cross examination he has stated that he has stated to the
police that three assailants were muffled their faces by
the clothes of different colours creates suspicion about
investigation.
D 117 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
F] The testimonies of P. W. Nos. 1, 2 and 4 cannot be
accepted on the point of mufflers coming off, as it is
improvement. Testimony of P. W. 1 to P. W.4 are woven with
several contradictions and omissions and therefore, are not
trustworthy.
G] The witnesses had hardly any time to observe faces
and features of accused persons after muffling coming off, as
claimed by the prosecution, as they were frightened and were in
hurry to close the door, to save their lives, therefore, there is
every chance of mistaken identity.
H] Learned Counsels for the accused Nos. 1 and 3 to 7
vehemently argued that suspects were shown to the witnesses.
It is bounden duty of the Investigating Agency to keep the faces
of the suspects under veil while producing them in the Court
during remand till test identification parade is conducted.
Prosecution has failed to bring on record any evidence to
show that accused persons were produced in the Court in
veiled condition thus, renders identification parade and dock
identification parade doubtful. Evidence of the prosecution
witnesses reflects that accused had muffled their faces as such
it is impossible to identify the suspects.
I] He further argued that admission on the part of
Ritesh Kothari that after arrest of the accused persons, he was
called by police and that he was shown the arrested persons.
D 118 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Likewise admission of Mr. Paliwal P. W. 3 that accused persons
were sitting in the waiting hall of the Court, where I waited
outside the Court hall for considerable time, makes the dock
identification doubtful.
J] Learned Counsel argued that admission on the part of
P. W. 3 that he has seen the photographs of arrested accused
persons in the news paper, visàvis admission on the part of
P. W. 19 Investigating Officer that photographs of the accused
were snapped when they were sent to prison. Thus, doubt is
created about the credibility of evidence of identification
parade and therefore it should be discarded.
163] To fix the identity of the assailants, prosecution
relies upon ocular testimony of P. W. 1 to 4 and identification
parade .
A] For proof of identification parade, prosecution
relies on testimony of P. W. 16 Prakash Somkuwar, Special
Judicial Magistrate, who testified that on 22062008 at about
0900A.M. in Central Prison,Nagpur,he conducted identification
parade as per requisition letter Exh241 dated 17062008,
issued by P. St. Lakadganj. Names of witnesses and the accused
were provided to him and he fixed identification parade on
220608 at 900 A.M. at Central Jail, and issued letter to
Superintendent of Central Jail Nagpur for necessary
arrangement and issued necessary summons to the witnesses.
D 119 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
B] On 22062008, at about 830 A. M., he
conducted identification parade in four rounds in presence of
respectable persons named Kamalakar @ Kamlesh Bhimrao
Wagh and Rushiraj Bhute with the help of 45 dummy persons.
He placed two suspects in single round for conducting
identification parade . He testified on his affidavit that the
identifying witnesses were called by Pankaj Karwati –
Watchman of Central Prison . On completion of identification
parade, he submitted memorandum of identification parade
vide Exh253 under his signature and signatures of Panch
witnesses Kamalakar and Rushiraj.
C] Exh253 discloses that suspects accused Sunil
Sharma and Rakesh Khushwaha were not identified by any
identifying witnesses. Suspects Nandbabu Mourya and Ankit
Shukla were identified by all witnesses P. W. 1 to P. W. 4 .
Suspect Amit Varma was identified by P. W. 4 Shailesh.
Suspect Shambhu Raikwad was identified by P. W. 3 Devesh
Paliwal and P. W. 4 Shailesh Lakhotia. Suspect accused
Yogendra Yadeo was identified by all identifying witnesses
except P. W. 3 Devesh Paliwal and suspect Chunbandh was not
identified by any of the identifying witnesses .
D] P. W. 16 Prakash Somkuwar testified before the
Court about procedure and the identification of the suspects.
Prosecution has not examined any Panch Witnesses of
identification parade.
D 120 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
164] Learned Counsels appearing for accused
nos. 1 to 8 strenuously argued that evidence in the
identification parade needs to be discarded as conduction of
identification parade is made with utter disregards to the
guidelines issued by Hon'ble High Court in the Criminal
Manual . Proper care , of placing dummies of same age group,
height complexion and built, was not taken by learned Special
Judicial Magistrate while carrying out the identification parade.
Learned Counsels contended that evidence of
prosecution witnesses shows that accused had muffled their
faces. As such, it is impossible to identify the culprits. There is
evidence on record that photographs of accused were
snapped by police machinery. Accused were never brought in
Court keeping them veiled . The record shows that even during
remand proceedings, accused persons were brought unveiled.
Thus, doubt is created about the credibility of the evidence of
identification parade and , therefore, it should be discarded.
Learned defence Counsel for accused No. 5
argued that testimony of P. W. 16 Prakash Somkuwar, Special
Judicial Magistrate, who has allegedly conducted identification
parade could not withstand the cross examination. Non making
of any preliminary inquiry with the identifying witnesses
regarding observance of suspects before identification parade to
identifying witnesses or whether they had any chance to see the
D 121 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
suspects or not, itself shows that Special Judicial Magistrate has
not complied with the provisions of guidelines services of jail
employee Mr. Karwati was also objected . Special Judicial
Magistrate has admitted that he has availed services of same
jail guard Pankaj Karwati to bring the suspects and identifying
witnesses in identification parade. It clearly reflects that the
conduction of alleged identification parade was done with utter
disregard to the guidelines given in Criminal Manual, wherein,
it is clearly mentioned that panch witnesses shall be sent to
bring the suspects and identifying witnesses. Transparency and
credibility of the test identification parade is not worthy of
credence.
Learned Counsel for accused no. 8 submitted
that person of 26 years and 46 years were kept for identification
parade as a dummy in the same row. In the memorandum of
identification parade, dummy Pravin Waghmare is shown as a
person of 32 years in the first round, but in the forth round the
same person is mentioned as aged 36 years . As such, Special
Judicial Magistrate failed to take care about age group, physical
and facial resemblances and built of dummies.
Learned counsel Shri Jaltare for accused no. 4
submitted that accused no. 4 is dwarf but his test identification
was not conducted separately with like dummies. Special
Judicial Magistrate has given feeble explanation that it is not
possible every time which has caused prejudice to the interest
D 122 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
of present accused . Thus, test identification parade be thrown
out of board .
Learned Counsels for accused nos. 1 to
8 to buttress the contention relied upon the ratio laid down in
the following authorities :
1] Vilas Patil Vs State of Maharashtra reported in 1997 (1) Mh. L. J., 27 wherein it is held that
It is well settled that evidence of identification can
only be relied upon if, all chances of suspects being
shown to the witnesses prior to test identification
parade to be eliminated. To ensure that firstly the
prosecution has to adduce link evidence to the effect
that right from the time of arrest till being lodged
in jail the faces of the suspects were kept veiled and
no one had any opportunity to see them. Link
evidence has to be adduced by the prosecution to
prove this fact. The burden of showing that right
from arrest till being lodged in jail the faces of
suspects where throughout kept veiled, is on the
prosecution and where it has failed to discharge this
burden, the evidence of identification is rendered
worthless. It is reinforced by the decision reported
in AIR – 1961 ALL. 153, Asharafee Vs The State,
wherein in paragraph no. 35 James, J. spoke for
the Division Bench, thus ' it is duty of the
D 123 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
prosecution to prove that from the time of the arrest
of an accused persons to the time of his admission to
the jail, precautions were taken to ensure that he
was not seen by any outsider.' In AIR 1961 ALL.
153 Asharafee Vs State, the Court observed that
plea of shown does not require to be established
affirmatively. It is sufficient if the accused can
create a reasonable doubt in the mind of Court.
Direct evidence may not be available but accused
may discharge this burden by showing , for example
that he and the witnesses were present in the police
station at the same time.
2] Sanjay Shelke Vs State of Maharashtra reported in 1999 (3) Mh. L. J., 71 wherein it is held that
“Plea of the accused that he was shown need not
be established by the accused to the hilt . Burden
is discharged if it can be shown from the
circumstances that there was reasonable
possibility of the accused being shown to the
witnesses prior to test identification parade.”
3] Rakesh Kahar Vs State of Maharashtra reported in 2006 All M. R. Cri. 3390, wherein it is held
“ In Test Identification Parade, it is obligatory
for Special Executive Officer to ask the
witness as to whether he has opportunity to
D 124 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
see the suspect or his photograph prior to
parade. In this case it is held that on the basis
of non observance of this mandatory
requirement, test identification parade was
discarded.”
4] Vijay D. Bhosale & Anr. Vs State of Maharashtra reported in 2006 ALL MR (Cri.) 3390, wherein it is held
“For test identification parade, prosecution
not taking sufficient precaution so as to
prevent witness from seeing the suspect
before they were paraded with other persons.
Procedure adopted is replete with fatal
infirmity . Test identification parade is
vitiated.”
5] Rajan Muker Vs State of Maharashtra reported in 2010 ALL MR (Cri.) 426, wherein it is held that
“In this case Accused persons were already seen by
witnesses at police station before he was taken for
identification parade therefore identification of
accused persons during the test identification
parade was not given any importance.”
6] Manepalli Vs State of Andhra Pradeshreported in 1999 Cr. L. J. 4375, wherein it has been held
D 125 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
“ In this case since investigation officer has
snapped photographs of assailants,
possibility of photographs being used to
brief and prepare witnesses to identify
culprits could not be ruled out. It was
observed that Identification parade held
Farcical.”
165] Per contra, learned D. G. P. for the State
contended that prosecution witnesses have not stated that
throughout incident from entry to exit, entire faces of assailants
were muffled. Witnesses have testified equivocally that muffled
faces of assailants got opened. The memorandum of
identification parade would reflect that the identification
parade was conducted with compliance of the guidelines .
166] I have carefully perused above cited
authorities . Taking into account present set of facts, from the
ratios laid down in these authorities, I reached to the
conclusion undoubtedly test identification parade was
conducted by Special Judicial Magistrate in most callous
manner right from selection of dummies , their placings in the
row, calling of identifying witnesses up to submission of
memorandum of identification parade; test identification
parade is conducted without strict compliance of issued
guidelines . Since mandatory requirements stipulated in
guidelines issued by Hon'ble High Court in Criminal Manual
D 126 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
are not observed, doubt is created about its credibility. It is
hazardous to place reliance upon such evidence. I find
Identification Parade conducted in the present case is doubtful
and unreliable, thus needs to be discarded.
167] It is submitted as a general rule, substantive
evidence of a witness is the statement made in the Court. The
facts, which establish the identity of accused persons are
relevant under section 9 of Evidence Act. The idea of test
identification parade is that witness who claims to have seen
the culprits at the time of occurrence are to identify them from
the midst of other persons without any aid .
168] Infirmity in test identification parade will not
affect out come of case, provided substantive evidence is
confidence inspiring. Circumstantial evidence would lend
additional support to ascertainment guilt of accused or
otherwise.
169] Identification Parade during investigation
period is conducted to test memory of witness based upon first
information and also to enable the prosecution to decide
whether all or any of them could be cited as eye witnesses of
the crime.
170] Learned D. G. P. for the State relied upon a
ratio laid down in a case of Siddhartha Wasishtha Vs State
( NCT) of Delhi reported in 2010 ALL MR (Cri) 1627 (SC)
D 127 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
and contended that
“ for identification the infirmity in test
identification parade will not affect out
come of the case since deposition of
witnesses in Court is reliable and could
sustained the conviction. Test
identification parade only aids in
investigation and do not form substantive
evidence. Substantive evidence is evidence
before the Court on oath.”
171] The evidence in respect of identification
parade is quite important in a criminal trial of robbery and
dacoity where culprits are stranger to the victim. Guidelines
for conduction of identification parade are circulated. On
account of mistakes committed by Investigating Officer while
bringing the culprits for remand or identification parade and
Court or mistake committed by Special Judicial Magistrate for
preliminary inquiry, selection of dummies or arrangement of a
particular room and route of bringing suspects and witnesses
to the room of identification parade, whether real culprits be
escaped and the prejudice of social security and safety needs
to be considered. Rights of accused and right of victims cannot
be weighed differently.
D 128 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
172] Identification proceedings are in the nature
of tests as observed by Hon'ble Apex Court in a case of Matru
VS State of Uttar Pradesh reported in ( 1971 ) 2 SCC 75 , in
which Hon'ble Apex Court held that
“ Identification tests do not constitute
substantive evidence. They are primarily
meant for the purpose of helping the
investigating agency with an assurance that
they are proceeding on the right lines. The
identification can only be used as
corroborative of the statement in Court. ”
173] Test identification parades do not constitute
substantive evidence. These parades are essentially governed
by Section 162 of Criminal Procedure Code. The weight to be
attached to such identification should be matter of scrutiny
depending upon the facts. Oral evidence led before Court
during trial is substantive evidence, whereas evidence of Test
Identification Parade perse may not be. In appropriate cases
such evidence can be relied upon as that would be relevant
under Section 9 of Indian Evidence Act.
174] Hon'ble Apex Court in the case of
Siddhartha Vasishtha Vs State ( NCT of Delhi ) reported in
2010 All MR (Cri) 1627 (S. C.) held as follows
D 129 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
"That infirmity in the test identification parade
will not affect out come of the case since deposition
of the witness in the Court if reliable could sustain
conviction. "
In this case photo identification of accused by
witnesses was conducted and identification of accused as
culprit was made before the Court. Their Lordships wherein
held that photo identification and test identification are only
aids in investigation and do not form substantive investigation.
Substantive evidence is evidence in the Court on oath.
175] In the case of Malkhansingh Vs State of
Madhya Pradesh reported in ( 2003 ) 5 SCC 746 at 752 it
is held that
“It is trite to say that the substantive
evidence is the evidence of identification
in Court. Apart from the clear provisions
of Section 9 of the Evidence Act, the
position in law is well settled by a catena
of decisions of this Court. The facts, which
establish the identity of the accused
persons, are relevant under Section 9 of
the Evidence Act. As such general rule,
the substantive evidence of a witness is the
statement made in Court. The evidence of
mere identification of the accused person
D 130 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
at the trial for the first time is from its
very nature inherently of a weak
character. The purpose of a prior test
identification, therefore, is to test and
strengthen the trustworthiness of that
evidence. It is accordingly considered a
safe rule of prudence of generally look for
corroboration of the sworn testimony of
witnesses in Court as to the identity of the
accused who are strangers to them, in the
form of earlier identification proceedings.
This rule of prudence, however, is subject
to exceptions, when, for example, the
Court is impressed by a particular witness
on whose testimony it can safely rely,
without such or other corroboration. The
identification parades belongs to the stage
of investigation and there is no provision
in the Code of Criminal Procedure which
obliges the investigation agency to hold, or
confers a right upon the accused to claim a
test identification parade. They do not
constitute substantive evidence and these
parades are essentially governed by
Section 162 of the Code of Criminal
D 131 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Procedure. Failure to hold a test
identification parade would not make
inadmissible the evidence of identification
in Court. The weight to be attached to
such identification should be a matter
from the Courts of fact. In appropriate
cases, it may accept the evidence of
identification even without insisting on
corroboration.”
It is submitted that in this case, accused
persons were tried for gang rape on a school teacher . Facts of
the case show that crime was perpetrated in broad day light.
Prosecutrix was threatened and intimidated by accused before
and after commission of rape, hence, she had sufficient
opportunity to observe the features of accused persons and had
reason to remember their faces as on account of her traumatic
and tragic experience. It was observed that the faces of
accused persons must have got imprinted in her memory and
there was no chance of her making mistake about their identity.
Implicit reliance was placed since there was no reason to falsely
identify the appellants as a perpetrator of crime. In this case
though test identification parade was not held, conviction on
the basis of identification in the Court, corroborated by other
circumstantial evidence was upheld. It was held identification
parade is rule of prudence, however subject to exception when
D 132 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
the Court is impressed by the testimony of particular
witnesses, it can safely rely without any corroboration . Placing
reliance on the ratio laid down in aforesaid case, I find,
testimonies of witnesses are of such a nature that implicit
reliance can be placed on it . In my view oral testimonies of
P. W. 1 to P. W. 4 are reliable and trustworthy.
176] Keeping in mind proved circumstance lending
corroboration to the case of the prosecution
That, bullets retrieved from dead body of Suresh
Lakhotia, Sushil Lakhotia were fired from country made handguns
Exh 3 and, bullet retrieved from the leg of injured Shailesh
Lakhotia was fired from country made handgun Exh1 further, bullet
found on the spot of incident was also fired from country made
handguns Exh – 2 .
Likewise, empties Exs – 7, 8, 9, 10 and 11
found on spot of incident are fired from country made
handguns Exhs1, 2, and 3 seized from accused no. 2 Sunil
Sharma further scrutiny of substantive evidence is done.
177] I have already discussed that prosecution has
proved through oral testimony presence of 5 persons armed
with weapons at relevant time at the spot of incident .
Threatening words were spoken and cash bag and golden
chain were extorted by assailants on point of deadly weapons.
Homicidal death of Suresh and Sushil Lakhotia is un
controverted fact. As such, all essential ingredients of Sections
D 133 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
396, 395 read with Section 397 of Indian Penal Code have been
established by prosecution.
178] Tentacles of Section 396 take into its penal
circumference all the dacoits, immaterial of their intention
with a person who committed murder.
When attack is made on victim by large number
of persons armed with deadly weapon, it is often difficult to
determine the actual part played by each offender. Actual
participant and abettor are considered at par on
ascertainment of guilt . Prosecution is not even required to
prove which of member did which offensive act.
179] Whether prosecution proves presence of
assailants on the spot of incident.
For the same, it is necessary to scrutinize
whether witnesses had sufficient opportunity and time to
observe the features of culprits and were having stability of
mind to store the impression in mind.
I submit that, though Exh334, is proved by
Investigating Officer, mere contradictions with police statement
of witness is not admission of prosecution case if contents of
such contradictions are denied in substantive evidence.
180] To evaluate arguments and counter
arguments that identification of assailants is impossible since
assailants were muffled their faces. It needs to be stated that
even in cross examination witness Shailesh admitted to have
D 134 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
stated that he has stated to police that three assailants were
muffled their faces, by clothes of different colours. As such, it
can not be said that every accused had muffled their faces.
Unshaken testimony of P. W. 1 Ritesh coupled with oral report
Exh93 and testimony of P. W. 3 Devesh that muffled faces
of assailants got open, has established that witnesses have
opportunity to observe faces of assailants .
181] The objection that the dacoits had muffled
their faces and thus it is impossible to observe them, could not
be sustained. Witness Nos. 1 to 3 have also testified that faces
of assailants got opened. Though, in the deposition of P. W. 3
Devesh Paliwal the said aspect of opening of muffled faces of
assailants is marked as omission, it is not omission. Since the
dacoity is essentially a crime requiring swiftness, agility in
physical activity in which manhandling is apparent. It is not
unnatural that a piece of cloth / muffler wrapped would come
of within short time and will not remain effective for long.
182] To evaluate the arguments that suspect were
shown to the witness testimonies needs to be looked into.
A] Testimony of P. W. 4 Shailesh would reflect
that he has straight way denied the suggestion about showing
of suspect. Ritesh Kothari testified that he was called to police
station to attend identification parade. He testified after arrest
of accused he was called by the police. Notably,
identification parade was conducted in Central Prison and not
D 135 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
in police station.
B] A stray admission that at that time, I was
shown the arrested persons do not discredit his testimony since
in the cross examination conducted by accused no. 7 he has
specifically denied the suggestion that he was shown the
culprits before identification parade.
C] Much ado has been made of admission of
witness Ritesh Kothari that it is true to say “Shailesh, Paliwalji,
Sharmaji all accompanied me in the police station.” But,
Shailesh has denied it straightway . Wheres, witness Gopal
Sharma denied the suggestion that when accused persons were
arrested and brought to police station, they were shown to
them.
D] A positive evidence led by witnesses cannot
be washed by negative evidence.
E] Notably, P. W. 3 Devesh Paliwal admits that
he has seen the photographs of accused in news paper and
further admitted that when he visited the police station accused
persons were present there , as such, the very admission of the
accused being shown to this witness prior to identification
parade, vitiates his identification of assailants before Court. I
find it weakens credibility of testimony of P. W. 3 Devesh
Paliwal. But, it is submitted that it could not throw positive
evidence led by P. W. 1 Ritesh Kothari, P. W. 2 Gopal Sharma,
P. W. 4 Shailesh Lakhotia out of board.
D 136 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
F] I find testimonies of eye witnesses reflect that
witnesses have sufficient opportunity and time to observe the
features of culprits as well as was having stability of mind to
store the impression in mind.
183] Ocular testimony whether proves presence
and involvement of accused no. 6 :
A] Testimony of P. W. 4 Shailesh Lakhotia,
reveals that P. W. 4 Shailesh is a person who was sitting at
main chair of first office room i. e. hall and was talking on
telephone. He testified two assailants followed, entered in
the office, snatched phone from him, broke telephone and
slapped him.
B] P. W. 2 Gopal Sharma and P. W. 3 Devesh
Paliwal have stated their presence in hall as customers at
relevant time. First three assailants followed by two, holding
deadly weapons entered in the office. P. W. 2 Gopal and P. W.
3 Devesh Paliwal reiterated that out of them, first three
assailants snatched phone of Shailesh, broke wires of telephone
and slapped Shailesh .
C] P. W. 2, P. W. 3 and P. W. 4 have all
categorically stated that before entry of assailants in office,
Suresh Lakhotia entered in the hall with a Thaili . He kept it in
the inside room and was about to come at hall, at that time
assailants entered.
D 137 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
D] As such, I find testimony of P.W. 4 Shailesh
is corroborated by testimony of P. W. 1, P. W. 2 and P. W. 3.
E] P. W. 4 injured witness Shailesh has
identified accused no. 6 before the Court as assailant. It needs
to be mentioned that identification of accused no. 6 cannot be
said to be made on fleeting glance. He was one of the
assailants who, by taking the witnesses inside the room from
front hall, had created terror by putting witnesses in fear on
point of weapons. Thus witnesses had sufficient opportunity to
observe culprit accused no. 6 .
F] Even after firing, witness Shailesh gathered
courage to fight with assailants, after firing on Suresh, as
such not only occasion but stability of mind to store the
impression in the mind also can be assessed positively.
G] Accepting obvious contradiction whether
weapon was revolver or pistol uttered by witnesses, it needs
consideration that identification of accused no. 6 is specifically
made on the basis that he was holding revolver and who
slapped Shailesh. This testimony is corroborated by P. W. 1, 2
and 3. Out of four fire arms three fire arms are country made
hand guns and fourth weapon is Pistol.
H] Only Pistol sent for analysis has been
analyzed by Ballistic Expert as “ Used gun” . Only empty sent
for its comparison found on the place of incident was
unsuitable for examination but presence of Nitrate powder and
D 138 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
test firing of two 7.65 mm. Pistol cartridges available in the
laboratory were successfully fired from Pistol Exh4, has proved
the weapon “ used gun ” and it is additional link to prove
presence of accused no. 6 on spot and involvement of assailant
accused no. 6 in commission of crime.
I] Accused no. 6 has been identified before
Court by making him stand. In the cross examination
conducted by counsel for accused no. 6 only on the basis of
height 5 ft. 6 inches or 6 ft version is tried to be scathed but
act of slapping by very assailant, remained unshaken.
J] Nature of cross examination would reveal
description, complexion and height of assailants were given to
police authorities which is appearing in statement of witnesses.
Contradiction of complexion of accused after time gap of 3
years is inconsequential. It cannot be ignored the statements of
witnesses were recorded after identification parade with
specified role played by them in a dacoity.
K] Being part of activities occurred in the front
hall of office, this aspect has been discussed first.
L] Learned Counsel Shri Gaikwad for accused
no. 6 submitted that in view of the facts and on appreciation
of circumstantial evidence which fails to constitute a complete
chain consisting with guilt of accused no. 6, benefit of doubt be
given to him .
D 139 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
M] For the same he placed reliance on a case of
Musheerkhan VS State of Madhya Pradesh , wherein it is held
that "on appreciation of circumstantial evidence, which fails to
constitute a complete chain consistent with the guilt of the
accused, benefit of doubt be given to the accused."
N] Keeping in mind the principles laid down in
the above case about appreciation of evidence in this
authority, further scrutiny is made.
O] Learned Counsel Shri Gaikwad for accused
no. 6 placed reliance on the ratios laid down in following
Authorities :
1] State of Punjab Vs Rajindersingh, reported in 2009 – EQ (SC)– 0–A1209
2] State of Madhya Pradesh Vs Munshi Sinh, reportedin 2009 EQ(SC)0676
3] Arun Dhumal Vs State of Maharashtra, reported in 2006 (EQ) BOM01463
4] Dharampal Vs State of U. P. reported in 1995 EQ (SC)0453
5] Puransingh Vs State of Uttaranchal, reported in 2008 EQ (SC)046
6] Harchandsingh VS State of Punjab reported in1981 EQ(SC)018
D 140 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
P] By placing reliance on the above authorities, learned
Counsel Shri Gaikwad for accused no. 6 vehemently argued
that participation of accused no. 6 is doubtful. Deceased died
on the spot due to gun shot injuries caused because of Exhs 1
to 3 and not by Exh4 . Exh 4 was allegedly carried and
recovered from accused no. 6. There is no conclusive evidence
that empties recovered from the scene of occurrence had any
nexus with Exh4. Thus, it would be harsh to hold accused no.
6 responsible for assault, causing death or injuries. The seized
guns as well as cartridges which were recovered from scene of
occurrence were sent to Ballistic Expert and found that
cartridges / empties are not one filed from the gun recovered
from the accused no. 6.
184] On the basis of this observation, the learned
Counsels for the defence argued that the prosecution is not
successful in bringing home the guilt of the accused and in
establishing that gun of accused which has caused fire arm
injury to deceased, as has resulted in their deaths. Therefore,
accused no. 6 is entitled for acquittal by extending the benefit
of doubt.
185] After giving thoughtful consideration to the
argument advanced by learned Counsel for accused no. 6, I find,
prosecution has proved that bullet injuries caused to the
deceased Suresh and Sushil as well as injury caused to the leg
of Shailesh has been caused because of Exhx 1 to 3 and not by
D 141 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Exh4, (which was recovered at the instance of accused no. 6. )
186] Only on this factor whether benefit of doubt
can be extended to the accused no. 6 needs consideration :
The facts of the case in hands and the ratios
laid down in the above cited cases are different. In the case in
hand, presence and participation of accused no. 6 is proved
through testimonies of eye witnesses, beyond any reasonable
doubt.
It is submitted that it is sufficient for the
prosecution to prove that gun Exh4 was used in the crime.
Though, it has not been used for causing injury, even use of
weapon gun for threatening in the crime is sufficiently proved
by the prosecution. Under such circumstances, there is no scope
for extending benefit of doubt to the accused no. 6 .
Taking into account corroborated versions ,
corroborated acts of assailant done at hall , I find, identification
of accused no. 6 as a person who was holding a pistol ( may it
be deposed as revolver ) and further who slapped shailesh is
specifies and thus believable and reliable.
187] Ocular testimony whether proves presence
and involvement of accused nos. 3 and 5 :
A] As the evidence stands, it is necessary to see
whether the witnesses had chance to observe and store the
impression in mind about accused Nos. 3 and 5 in particular.
D 142 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
B] To scrutinize event occurred in a room
where P. W. 1 Ritesh was running laptop, it is necessary to go
through the testimony of P. W. 1 Ritesh. Ritesh testified
person having knife pointed it to him ( may be the request of
not to do anything was not made by him but by Shailesh ) . All
said assailants asked them to sit, and keys of Godrej Almirah
were asked, to which Suresh and Sushil shown unawareness.
One of the culprits snatched golden chain of Suresh, Suresh
protested and gun was fired towards Suresh. Shailesh and
Sushil shouted loudly, however both were taken towards hall.
C] It would be appropriate to state though there
is contradiction whether assailants took Sushil and Shailesh
outside room i. e. hall or whether Sushil and Shailesh took
assailants towards hall, presence of Sushil, Shailesh and
assailants in the hall, after the incident of firing on Suresh in
side room , is beyond any dispute. Every activity of assailants
have been corroborated by other eye witnesses.
D] P. W. 4 Shailesh stated that as they pushed
the assailants outside the room, one of them collapsed on the
cooler kept in the office and Sushil caught hold one of the
assailant, who was transferring the cash from one bag to
another. He testified that the assailants to whom Sushil caught
hold was having revolver in his hand and at that time a person
having knife was also present. He further testified that he
succeeded to catch hold one of the assailants who was having
D 143 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
revolver in his hand and he took him towards kitchen.
E] To scrutinize testimony of P. W. 4 Shailesh
injured witness for the sequence of assault made by assailant in
the hall and kitchen after firing in the inside room. Shailesh is
the only witness who experienced the assault and scuffle and
who sustained injury o his leg as such expectation of
corroboration would be unwarranted.
F] Learned D. G. P. by placing reliance upon
the case of Abdul Sayeed vs State of Madhya Pradesh,
reported in 2010 ALL MR ( Cri ) 3691 ( SC ) , submitted that
“Testimony of the injured witness is accorded special
status in Law. This is as the consequence of fact that
the injury to the witness is an inbuilt guarantee of
his presence at the scene of crime and because the
witness will not want to let his actual assailants go
unpunished merely to falsely implicate a third party
for commission of offence.”
G] Thus, placing reliance upon aforesaid authority, I
submit that P. W. 4 Shailesh being injured accords special
status. His unshaken testimony is most reliable piece of
evidence.
H] Shailesh testified that when he was about to sit one
of them hit him on his head saying (rqEgs vyxls cksyuk iMsxk D;k )
I] Not only Shailesh but Gopal Sharma also has
corroborated testimony of Ritesh. I find, the testimonies of
D 144 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
eye witnesses is believable. They have witnessed and stated
equivocally that they were taken by assailants in the inside
room , made them to sit, threatened and asked keys of Godrej
Almirah to which Suresh and Sushil showed unawareness.
One of the culprits snatched golden chain of Suresh and on
protest, Suresh was fired by gun by one of the assailants. P.
W. 1 Ritesh and P. W. 2 Gopal Sharma state that firing was
made by accused no. 3, whereas P. W. 4 Shailesh states that
firing took place and he identified accused no. 5 as a person
who fired on Suresh. Testimony of witnesses through
corroboration has established that accused no. 3 and accused
no. 5 both were holding guns. Shailesh though pointed out
accused no. 5 as culprit who fired; said version do not discredit
prosecution's case; It is necessary to reiterate that the
circumstance that empties found on the spot of the incident,
and bullets retrieved from dead bodies are proved to be fired
from country made hand guns Exhs 1 to 3 seized by
Investigating Officer from one of the assailants .
J] Medical Officer has stated range of firing is
within 10 fts. on the basis of tatooing marks. No such firing
range is stated by Ballistic Expert as it was not questioned.
May it be, accused no. 3 or accused no. 5 because of this
peculiar corroboration that both guns ( handled by accused
nos. 3 or 5 ) were seized from one of the accused No. 2 Sunil
Sharma and traces of firing of it find place at the spot of
D 145 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
incident only, I find, the circumstances and the testimonies
lends corroboration. I find prosecution has proved presence of
accused no. 3 and accused no. 5 on the spot and their
involvement in commission of crime.
188] Ocular testimony whether proves involvement
of accused no. 7 in commission of Crime :
P. W. 1 Ritesh identified assailant, as a person
holding knife and who had put that knife on his throat. It is not
unnatural to identify the perpetrator of the crime . Testimony of
Ritesh is corroborated by P. W. 2 Gopal Sharma and P. W. 4
Shailesh Lakhotia, who added that a person holding knife had
wore hat.
Testimonies of eye witnesses reveal that only
one assailant was holding knife whereas others were holding
guns. A knife is also seized during the investigation of crime
from the spot of incident and is also identified by the witnesses.
As such, identification of accused no. 7 Yogendra Yadeo cannot
be doubted.
189] Ocular testimony whether proves presence
and involvement of accused no. 4 :
A] Learned Counsel Shri Jaltare for accused no.
4 Shambhu submitted that complainant Ritesh Kothari alleged
eye witness of incidence who has reported the matter
immediately after the incident, in the night hours, has stated
the description of assailants of age group 25 to 30 years. He
D 146 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
has described one of the assailants having height 5.6 ft.
( lkoGk jax )Savala colour, medium built. He has not given
description of accused Shambhu in his complaint.
B] Learned Counsel submitted that Shambhu
Raikwar has unique physical feature that he is drawf.In the
cross examination P. W. 1 Ritesh has testified that he considers
person above 6 ft as tall, 5.6 ft as medium and below that a
short man. Presence of Shambhu who is a dwarf ( a short
man ) is having distinguishing identifiable feature, but his
description as assailant is not mentioned in Exh93 . In his
testimony also he has not specified that one of the assailant was
dwarf.
C] Learned Counsel further submitted that P. W.
3 Devesh identified accused no. 4 Shambhu as dwarf.
Admittedly, he has not informed about the description of dwarf
assailant to the police at the time of recording of his statement.
The explanation offered that he was confused. , hence,
presence of accused no. 4 Shambhu is not proved by the
prosecution.
D] It is necessary to mention here that the word
( Nata ) denotes person having short height. Height of accused
no. 4 Shambhu is 5. 3 ft. Heights of other accused persons as
can be gathered from arrest forms ranges from 5.4 ft to 5. 7 ft.
P. W. 4 Shailesh ( injured ) has testified that he identified
accused no. 4 Shambhu as a person holding gun, transferring
D 147 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
the cash and further caught hold by Sushil Lakhotia. His version
regarding holding gun remained unshaken. Though he has
not stated description of the person caught hold by Sushil, in
his statement, his version regarding transferring the cash
remained unshaken. This can be gathered from his statement
that he has described a person having short height as a (Butara)
(cqVjk) and Sawala colour (lkoGk jax) was holding gun (big
pistol) in his statement . Even the reference of transferring
the cash is apparent in in his testimony though with slight
change in version.
E] On conjoint reading of statements of P. W. 4
injured Shailesh, I find, prosecution has proved presence and
involvement of accused no. 4 at the time of commission of
crime.
F] I submit ignoring the identification of accused
no. 4 on the basis of activities while commission of crime,
strenuously argued aspect of dwarfness would not spare
accused no. 4 in the back drop of heights of other assailants
present on the spot at the time of commission of crime.
190] Summarily, it is submitted that significantly
the dacoity and murders are committed at 535 P. M. in a day
light. Witnesses P. W.1 to P. W. 4 have observed and testified
before Court every act of assailants in particular . The room in
which activities of threatenings , making them to sit ,
snatching chain and firing bullet on Suresh is of area
D 148 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
admeasuring 10 X 10 Sq. ft. Though, the presence of 9 to 10
persons in such room would make it congested. At the same
time, one can calculate condition of eye sighter that the
assailants were at very shorter distance from witnesses and
thus they had opportunity of observing the offender.
191] In a ghasty incidence, where two brothers
were fired and killed in a day light dacoity and victims have
been tortured and injured. There is evidence that witnesses
had physical contacts and confrontation with accused persons.
It is believable that on account of traumatic and tragic
experiences faces, features of assailants would get
photographed in their memories. Impressions of culprits , not
only facial but on the basis of their built, on the basis of holding
of weapon, and the act done bound to store in the minds of
victims and witnesses. There is no reason to falsely identify
the appellants as perpetrator of crime. As such, the testimonies
inspires confidence. Hence, I hold that substantive evidence of
P. W. 1 to P.W. 4 is trustworthy and safely reliable.
192] By placing reliance upon the ratio laid down
in the case of Siddhartha Vasishtha Vs State ( NCT of
Delhi ) in which Harbhajan Singh Vs State of J & K
reported in ( 1975 ) 4, SCC 480, is referred it is stated that
“ Though a test identification parade was not
held, this Court upheld the conviction on the
basis of the identification in Court
D 149 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
corroborated by other circumstantial
evidence. In that case, it was found that the
appellant and one Gurmukh Singh were
absent at the time of roll call and when they
were arrested on the night of 16121971
their rifles smelt of fresh gunpowder and
that the empty cartridges case which was
found at the scene of offence bore distinctive
markings showing that the bullet which killed
the deceased was fired from the rifle of the
appellant. Noticing these circumstances this
Court held
In view of this corroborative evidence we find
no substance in the argument urged on
behalf of the appellant that the Investigation
Officer ought to have held an identification
parade and that the failure of Munshi Ram to
mention the names of the two accused to the
neighbours who came to the scene
immediately after the occurrence shows that
his story cannot be true. As observed by this
Court in Jadunath Singh Vs State of Uttar
Pradesh absence of test identification is not
necessary fatal. The fact that Munshi Ram
did not disclose the names of the two
accused to the villages only shows that the
accused were not previously known to him
D 150 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
and the story that the accused referred to
each other by their respective names during
the course of the incident contains an
element of exaggeration. The case does not
rest on the evidence of Munshi am alone and
the corroborative circumstances to which we
have referred to above lend enough
assurance to the implication of the
appellant .”
Hence, I hold that substantive evidence of P. W.
1 to P.W. 4 is reliable and trustworthy. Substantive evidence is
corroborated with circumstance of finding of empties, cartridges
from the spot of the incident as well as fired bullets were held to
be fired from the county made handguns Exhs1, 2 and 3 as
substantiated by Ballistic Expert's Report, I find even sans
identification parade conducted by Special Executive
Magistrate, prosecution has proved complicity of accused nos. 3,
4, 5,6 and 7 in the crime, beyond reasonable doubt.
Circumstantial Evidence
193] I would like to discuss circumstantial
evidence brought on record by the prosecution one by one
which incriminates particular accused showing his involvement
in the participation of the crime. :
D 151 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
A] Whether prosecution proves circumstance of :
Seizure of Chit Exh158 having Motorcycle No. MH31CB2574,
Jeans pant and Motorcycle bearing No. MH31BC2574
(Circumstance incriminating against Accused Nos. 1, 7 and 9 ):
a] To avoid the repetition, these two
circumstances are discussed jointly.
b] The prosecution claims that motorcycle
bearing this number was used in the crime. It is the claim of
prosecution that this chit Exh158 in which motor cycle number
MH31CB2574 is in the handwriting of Accused No. 1 Rakesh
Khushwaha, which was produced by the accused no. 9
Omprakash Gupta in the police Station along with jeans pant.
c] The prosecution links this evidence with
accused No. 7 Yogendra Yadeo, who , as per the prosecution,
has confessed to P. W. 19 Mr. Sawai pursuant to which,
recovery of this vehicle was made.
d] Prosecution has examined P. W. 11 Shilpa
Nikose, who runs an Institute of Handicraft and business of
painting. To prove the painting of a number plate bearing No.
MH31CB2574, Shilpa Nikose testified that in May, 20008, in
morning hours, two boys visited her institute and gave a chit
along with two plates and requested to paint the numbers on it
as per the chit given by them. As per their order she gave the
D 152 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
painted number plate. She further testified those boys failed
to make entry in the register saying that they have some urgent
work. She further testified that on the next day, she handed
over the number plate along with chit. P. W. 11 further stated
that she cannot identify those boys and failed to identify any of
the accused persons before the Court . P. W.11 identified chit
Exh158 bearing No. MH31CB2574 .
e] Testimony of P. W. 19 Investigating Officer
would be relevant to this aspect, who submitted that in
pursuant to the statement of accused no. 7 as lead, they along
with accused no. 7 went to Mominpura, Nagpur area near Hafiz
Bakery, where accused no. 7 has dropped one motorcycle
stolen which was stolen by him prior to commission of crime
and used by him in the instant crime. He had left that
motorcycle unattended.
f] Testimony of P. W. 19 further reflects that
when they reached to the spot, they could not find the vehicle
and on inquiry with the people in the locality, it revealed that
same is in the custody of police station Tahsil. In further
investigation, they went to police station Tahsil along with
accused no. 7, where accused no. 7 identified the motorcycle
Hero Honda Splender having number plate of No. MH31
CB2574 bearing Property No. 5 of 2008 of Tahsil Police
Station.
D 153 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
g] It is the claim of the prosecution that blood
stains found over handle and seat cover of this vehicle MH31
CB2574 were separated and seized under seizure panchanama
Exh304. This investigation part failed to establish nexus of
accused with the crime for the reason that
h] Firstly, the DNA analysis disclosed non
interpretable blood was found on the handle and seat cover of
motor cycle. In the absence of blood group, no importance can
be attached to such seizure.
i] Secondly, the said seizure of alleged
motorcycle is being made from open place accessible to all ,
hence, such recovery do not have any legal sanctity.
j] Thirdly Investigation further proceeded to
search out ownership of said vehicle which appears to be of
one Mubarkkhan R/o. Talegaon, District Amarawati.
k] As such, I find, testimony of Shilpa Nikose
does not support prosecution since vehicle of alleged false
number plate was found in open place and Secondly, the
witness Shilpa Nikose has not identified the boys who had
placed order of painting of such number plate MH31CB2574
to her, but astonishingly could identify the chit, apparently
which does not bear any specification. Hence, testimony of P.
W. 11 Shilpa Nikose is of no avail to support the case of the
prosecution.
D 154 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
l] The prosecution further tried to link this
vehicle of fake number plate being numbered as MH31
CB2574 with accused no. 9 Omprakash Gupta, who happens to
be the brother in law of accused no. 1.
m] To establish the link, the prosecution relies
upon the testimony of P. W. 19 who testified that on
05062008, accused no. 9 Omprakash Gupta produced a chit
Exh158 having number MH31CB2574 and one Jean pant of
accused no. 7, which were seized under seizure panchanama
Exh147. The prosecution witness P. W. 6 Chandrashekher
Kapse has also testified and corroborated seizure of said chit of
number MH31CB2574 and one blue coloured pant seized
from accused no. 9 Omprakash Gupta.
n] Admittedly, accused no. 9 Omprakash Gupta
is brotherinlaw of accused no. 1 Rakesh Khushwaha . The
prosecution claims that accused no. 9 Omprakash Gupta
produced said chit along with Jeans pant of accused no. 7 . As
such number plate has linkages either with accused no. 7 or
with accused no. 1.
o] I have already discussed falsity of implication
of accused no. 7 touching his nexus with unattended vehicle
MH31CB2574, it is submitted to prove the linkages of said
number plate and vehicle, wherein said fake number plate was
affixed, the prosecution claims that said chit having number of
D 155 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
vehicle No. MH31CB2574 ( Exh158) is in the handwriting
of accused no. 1 Rakesh Khushwaha.
p] The P. W. 19 Mr. Sawai testified that for
specimen handwriting Exh155, a panchanama Exh145 was
prepared and was sent to P. W. 22 handwriting expert Deepak
Pandit, who submitted his report vide Ex329.
q] Finding of said hand writing expert was tried
to be scathed . But, I submit, since I have held that, recovery
of vehicle No. MH31CB2574 on which false number plate
was affixed, is made from open place, no sanctity can be
attached to it's recovery and thus, I find, prosecution has failed
to prove the linkages of accused no. 1 with vehicle No. MH31
CB2574.
r] Furthermore, finding of a stray chit allegedly
having number MH31CB2574 in the house of accused no. 9
and its hand overing to police by accused no. 9 on 05062008,
after a month of incident, without any specification, why and
how such chit has been preserved by accused no. 9 Omprakash
Gupta at his residential house is a million Dollar question. I
find, prosecution fails to prove any linkages of chit or vehicle
with accused no. 9, accused no. 7 or accused no. 1 in the
alleged commission of crime.
B] Whether prosecution proves circumstance of :
Recovery of gas hearth at the instance of accused No. 1 :
D 156 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
( Circumstance incriminating against accused No. 1)
a] Prosecution relied upon testimony of P. W. 19
who testified that accused no. 1 Rakesh made confessional
statement before him that he had burnt the clothes of accused
persons and one SIM card and showed his willingness to recover
that hearth . Accordingly, P. W. 19 recorded statement of
accused no. 1 vide Exh300. Accused no. 1 further took party to
the house of his fatherinlaw at Sujata Nagar, Nagpur and
recovered one Hearth which was seized by Investigating Officer
vide Exh301. The prosecution also tried to support his
testimony with Panch witness Ravindra Bargad P. W. 8 who
admitted his signature over Exh300 and 301, but denied the
contents of panchanama / document.
b] Admittedly, the house from where hearth was
seized was in possession of Rajaram Gupta, as such, it cannot be
said to be a house in exclusive possession of accused no. 1
Rakesh. Furthermore, neither Rajaram Gupta was examined
nor residue of burnt clothes or ash was found near hearth. As
such, there is no confirmation that the hearth was used for
burning clothes of other accused persons and SIM Card. In
absence of corroboration from independent panch witness, the
prosecution has failed to prove any nexus between accused no.
1 with the seized hearth in the commission of crime.
D 157 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
C] Whether Prosecution proves circumstance of :
Seizure of motorcycle Kinetic Challenger
MH31AR9557 having blood stains on seat cover and
handle
(Circumstance incriminating against accused No. 1)
a] To prove the same, the prosecution has relied
upon testimony of P. W. 19 who has testified about voluntary
disclosure statement of accused No. 1 Rakesh vide Exh141 in
pursuant to which, said Kinetic Challenger was seized vide
seizure panchanama Exh142.
b] It has been argued by learned Counsel that
there is no iota of evidence on record to show that said
motorcycle was used in commission of crime. There is no
consistency between evidence of P. W. 6 Chandrashekhar
Kapse, who allegedly acted as a panch and P. W. 19
Investigating Officer Mr. Sawai. In the cross examination of P.
W.19 says that recovery of chit containing mobile numbers and
motorcycle bearing No. MH31AR9557 were seized one after
another in the evening hours. Exh141 confessional statement ,
seizure panchanama Exh140 for seizure of chit was done in the
evening hours at about 600 to 700 P. M. , whereas P. W. 6
Panch witness Chandrashekhar Kapse says that initially chit
Exh157 was seized from the house of accused no. 1 in the
morning hours. The police party along with accused came back
D 158 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
to Lakadganj Police Station and thereafter again they went to
the house of accused no. 1 and the motorcycle was seized in
the evening hours. P. W. 6 has denied that when police visited
the house of accused no. 1, they initially seized motorcycle and
thereafter during house search, police seized chit. P. W. 19 has
denied that motorcycle and chit were seized at different time, as
claimed by P. W. 6 Chandrashekhar Kapse.
c] Documents Exhs 141 and 142 show that they
were prepared during 600 to 700 P. M. Minor difference in
time stated could not discredit investigation.
d] It is significant to note that DNA report does
not disclose whether the blood was of human, neither it
disclosed about the blood group, so as to match it with the
blood group of any accused, concluding guilt or otherwise in
the crime.
e] I agree with the submission of learned
Counsel that as DNA report specifies non interpretable blood
was found on the handle and seat cover of the motorcycle, no
important can be attached to alleged seizure of motorcycle.
D] Whether prosecution proves circumstance of :
Seizure of chit Exh157 containing 7 mobile numbers of
other accused, from the house of accused no. 1 and
allegedly the said chit was in the handwriting of accused
No. 1
D 159 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
( Circumstance incriminating against accused No. 1 )
a] To prove the above aspect, the prosecution
relied upon testimonies of P. W. 19, Police Inspector Mr. Sawai,
P. W. 6 Chandrashekhar Kapse and P. W. 22 Deepak Pandit
Handwriting Expert.
b] Testimonies of P. W. 6 and 19 reflect that a
chit at Exh157 containing 7 mobile numbers of other accused
persons was found in the house of accused no. 1, during his
house search at the time of recovery of vehicle Kinetic
Challenger at the instance of accused no. 1 Rakesh. This chit
was seized by Investigating Officer P. W. 19 in presence of
panch witness P. W. 6 Chandrashekhar Kapse as per
prosecution.
c] P. W. 19 testifies that specimen hand writing
of accused no. 1 was obtained and sent for comparison to
Handwriting Expert P. W. 22 Deepak Pandit for ascertainment
of its authorship.
d] It is further case of the prosecution that
Deepak Pandit on receipt of these documents made preliminary
inquiry. He marked chit Exh158 as Q1, and chit at Exh157
as N1 and specimen handwriting of accused no. 1 as S1 to
S6 and on examination of document, concluded that
handwriting marked as Q1 was in the handwriting of person
who wrote N1 and S1 to S6 and he filed his statements of
D 160 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
reasons vide Exh355 on record. As such, the prosecution on the
basis of analysis of Handwriting Expert Exh392 claimed that
Rakesh Khushwaha is the author of chit Exh157 on which 7
mobile numbers were written down, which was seized from the
house of accused no. 1 .
e] Learned Counsel for accused no. 1 asseverated
that admission on the part of the P. W. 6 Chandrashekhar
Kapse alleged panch witness that chit Exh157 was not seized
in his presence, as he was not present in the room where from
chit Exh157 seized itself shows that seizure is not
substantiated by the prosecution with corroboration of
independent panch witness. Not only this, P. W. 19
Investigating Officer himself is not sure from which place
exactly chit Exh157 was recovered. At the same time variation
in timings i. e. 1130 A.M. as stated by P. W. 6 Kapse, and
6.45 P. M. as stated by Investigating Officer P. W. 19 Mr. Sawai,
cannot be ignored while dealing with circumstance of seizure of
vehicle Kinetic Challenger MH31AR9557. Thus, the seizure
casts grave doubt over authenticity of the chit Exh157.
f] P. W. 6 has admitted that at the time of
recovery, accused no. 1 was handcuffed which goes to show that
recovery is not voluntarily made . The recoveries at the
instance of accused no. 1 were effected after 5 days of his arrest.
There is no evidence of sealing of the articles at the spot of
D 161 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
seizure. There is no evidence to show that articles were kept
sealed till the time they were sent to Handwriting Expert. The
panchnama at Exh152 prepared in respect of numbers stores
in the mobile phone, allegedly seized from accused persons
shows that the numbers of other accused persons were not
stored in mobile phone allegedly seized from accused no. 1 in
order to show connection of accused no. 1 with other accused
and to show his involvement in the crime. The prosecution has
fabricated this piece of evidence to show that that mobile
number 9371527820 was in use by the family members of
accused no. 1 and he was in touch with other accused persons.
It is not reliable piece of evidence.
g] It is submitted, after giving thoughtful
consideration that said chit has not been recovered in pursuant
to confessional statement of any accused, but has been found
during recovery of motorcycle from the house of accused no.
1. After going through the documents i. e. panchanama
Exh140, it appears that chit having 7 mobile numbers vide
Exh157 and motorcycle bearing No. MH31AR9557 were
seized at the same time. Panch witness of this seizure testified
that he does not know where the said chit was kept and
removed from house of Accused No. 1.
h] It is highly unbelievable that a stray chit of
7 mobile numbers is prepared by anybody and kept it in
D 162 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
anybody's house without concealing it at any safest place, had it
been any relevance without saving it in the mobile phones.
i] Chit at Exh157 shows that number of the
SIM allegedly seized from accused no. 1's wife is also written
on the chit. It is not clear from the prosecution's evidence as to
why accused no. 1 would write his wife's number and for what
purpose, the numbers were written on chit.
j] Learned Counsel for accused further
submitted that testimony of P. W. 22 Deepak Pandit about
handwriting on Exhs157, 158 and 155 is concerned, the same
cannot be accepted for the reason that the evidence of
handwriting expert in itself could not be sole evidence to base
conviction unless there is substantial corroboration available to
the testimony of expert. Since, it is a opinion evidence, it
cannot take a place of substantive evidence.
E] Whether the prosecution proves the circumstance
of Seizure of Motor Cycle bearing No. MH31BY3725 Hero
Honda Splender :
(Circumstance incriminating against accused Nos. 2 and 10 )
a] It is the case of the prosecution that vide
Exh156, Motor Cycle bearing No. MH31BY3725 Hero Honda
Splendor was handed over by accused No. 10 Gaurishankar
Shahu to police. It is the contention of the prosecution that
Gaurishankar Shahu while producing this vehicle disclosed that
D 163 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
he has given this vehicle to Accused No. 2 Sunil Sharma which
was allegedly used in commission of crime.
b] Learned D . G. P. for the State submitted that
said seizure panchanama vide Exh156 has been proved by the
prosecution through the testimony of Investigating Officer P.
W. 19 Mr. Sawai, which has been corroborated by the
testimony of panch witness P. W. 6 Mr. Kapse. Whereas,
learned Counsel Shri Bhangade for the accused No. 10
submitted that alleged seizure panchanama Ex156 is concocted
document. Accused no. 10 has never disclosed such fact to the
Investigating Officer prominently at the time of preparation of
seizure panchanama Exh156.
c] It is submitted that accused no.10 is charged
for the offence under Section 202 of Indian Penal Code for
omitting to give information in respect of commission of crime.
From the oral testimony, it appears that five culprits sped away
from the spot by 2 two wheelers, one of which was Hero Honda
(Splender). Neither, a number or colour of it has been
specified. Learned Advocate for Accused submitted that, it is
illogical on the part of Investigating Officer to seize five
motorcycle when prosecution based his claims that only two
motorcycles were used in the commission of crime to sped away
from the spot.
D 164 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
d] I am of the view that prosecution has
miserably failed to prove involvement of this vehicle in the
commission of crime. Accused no. 10 was not in the custody of
the police, hence, such self incriminating, evidence cannot be
used against the accused. The prosecution has failed to bring
on record any corroborative evidence, hence, it is apparent that
implication of accused Gaurishankar is without any substantial
evidence. I hold that prosecution failed to prove this
circumstance against accused No. 2 and 10.
F] Whether prosecution has proved the circumstance
of seizure of white coloured Dupatta (Exh40 marked for
D.N. Analysis) from the spot of incident vide seizure
panchanama Exh121 :
(Circumstance incriminating against all accused )
a] The prosecution relied upon testimony of P.
W. 19 Mr. Sawai, Investigating Officer who testified about
seizure of this dupatta ( Gamache ) from the spot of incident
vide Exh121. Panch witness P. W. 5 corroborated his version.
P. W. 19 has also deposed about sending of this exhibit to
Chemical Analyzer for D. N. Analysis.
b] Pertinent to note here that, D. N. A. Report
Exh 222 analyzed this dupatta Exh40 having blood stain of
Suresh does not match with DNA profile of blood on Exh40.
D. N. A. profile of Rakesh, Jitnedra, Nandbabu, Shambhu,
Sunil, Yogendra, Amit, Ankit and Chunbdh are not identical and
D 165 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
DNA profiles do not match with maternal and paternal alleles
in the source of blood. This circumstance could not be linked
with any of the accused in the commission of crime.
c] The report of DNA Expert vide Exh222
further discloses that DNA profile of unknown person was
obtained from Sweat detected on Exh40 Dupatta. As such, I
hold prosecution has failed to prove the circumstance.
G] Whether prosecution has proved the circumstance
of seizure of Yellow coloured dupatta (Exh41 marked for
D.N. Analysis) from the spot of incident vide seizure
panchanama Exh121 :
(Circumstance incriminating against all accused )
a] The prosecution relied upon testimony of P.
W. 19 Mr. Sawai, Investigating Officer who testified about
seizure of this dupatta ( Gamache ) from the spot of incident
vide Exh121. Panch witness P. W. 5 corroborated his version.
P. W. 19 has also deposed about sending of this exhibit to
Chemical Analyzer for D. N. Analysis.
b] Pertinent to note here that, D. N. A. Report
Exh 222 analyzed this Dupatta Exh41 having blood stain of
Shailesh, which does not match with DNA profile of blood on
Exh41. D. N. A. profile of Rakesh, Jitnedra, Nandbabu,
Shambhu, Sunil, Yogendra, Amit, Ankit and Chunbdh are not
identical and DNA profiles do not match with maternal and
D 166 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
paternal alleles in the source of blood. This circumstance could
not be linked with any of the accused in the commission of
crime. As such, I hold prosecution has failed to prove this
circumstance against other accused including accused No. 8
Chunubandh ( which is discussed in detail in paragraph
relating to culpability of accused no. 8 Chunbandh ) .
H] Whether prosecution has proved the circumstance of seizure of Yellow coloured Dupatta Exh62 from accused No. 4 Shambhu Raikwar vide seizure panchanama Exh 144 .
(Circumstance against all accused )
a] To prove this circumstance, prosecution relies
upon testimony of P. W. 19 Mr. Sawai, Investigating Officer who
testified that in pursuant to confessional statement of accused
no. 4 Shambhu Raikwar recorded vide Exh143, they were
taken to the rented house of accused no. 1 owned by Mr. Dubey
and accused no. 4 Shambhu recovered one yellow coloured
dupatta kept behind T. V. Set which was seized under seizure
panchanama Exh144. The said testimony of P. W. 19 is
corroborated by panch witness P. W. 6 Chandrashekhar Kapse.
P. W. 19 has also deposed about sending of this exhibit to
Chemical Analyzer for D. N. Analysis.
b] Learned District Government Pleader for the
State has submitted that as such, the prosecution has proved
the seizure of said duppattas vide Exh144 .
D 167 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
c] Learned Advocate Shri Jaltare for accused no.
4 submitted that it is impossible to believe that for about 3
weeks a dupatta was kept behind T. V. Set and further it
remained there only in spite of the fact that the spot is a
residential house, wherein accused no. 1's family was residing.
P. W. 6 Chandrashekhar Kapse is a stock panch. Even he does
not know the make of the T. V. neither he could testify length
and breadth of the said dupatta. Learned Counsel further
argued that personal search was not given before entry by the
Investigating Officer and panch witnesses. Admission of P. W.
6 Chandrashekhar Kapse that he was not knowing at the time
of writing the confessional statement of accused no. 4
Shambhu where from alleged dupatta is going to be recovered,
reflects that he has put his signature over the document obliging
the police authorities being ' Police Mitra '.
d] It is to be noted that said dupatta was
allegedly recovered at the instance of accused no. 4. DNA
report of which shows its interpretation as DNA profile of sweat
detected on Exh62 dupatta and DNA profile of Rakesh
Khushwaha, Sunil Sharma and Ankit Shukla are identical
and from one and the same male origin. DNA profile matched
with maternal and paternal alleles in the source of sweat.
The detail discussion of which would be made in the circumstance of
credibility of DNA Report .
D 168 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
I] Whether prosecution has proved the circumstance
of seizure of White coloured Dupatta Exh63 from accused
No. 3 Nandbabu vide seizure panchanama Exh 146 :
( Circumstance against accused no. 3 )
a] To prove this circumstance, prosecution relies
upon testimony of P. W. 19 Mr. Sawai, Investigating Officer,
who testified that in pursuant to confessional statement of
accused no. 3 Nandbabu Mourya recorded vide Exh145, they
were taken to the rented house of accused no. 1 owned by Mr.
Dubey and accused no. 3 Nandbabu recovered one white
coloured dupatta kept under cupboard which was seized
under seizure panchanama Exh146. The said testimony of P.
W. 19 is corroborated by panch witness P. W. 6 Chandrashekhar
Kapse. P. W. 19 has also deposed about sending of this exhibit
to Chemical Analyzer for D. N. Analysis.
b] Learned D. G. P. for the State has submitted
that as such, the prosecution has proved the seizure of said
duppattas vide seizure panchanama Exh 146 .
c] Learned Advocate Shri Bhangade for accused
no. 3 submitted that timings of memorandum statement
allegedly given by accused no. 3 for recovery of dupatta from
the house of accused no. 1 kept under cupboard on 362008 is
at about 1505 hours and memorandum of accused no. 3 for
recovery of dupatta from the house of accused no. 1 on
D 169 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
03062008 at about 1535 hours and simultaneously bringing
them to the house of Rakesh Khushwaha and recovery of said
dupattas at the instance of accused no. 3 from 1550 hours to
1650 hours and for accused no. 4 from 1655 to 1750 hours
suggest that said documents are prepared intentionally to any
how connect the accused with the crime.
d] It is to be noted that Exh63 dupatta was
allegedly recovered at the instance of accused no. 3 . DNA
report of which shows its interpretation as DNA profile of sweat
detected on Exh63 dupatta and DNA profile of Amit Varma are
identical and from one and the same male origin. DNA profile
matched with maternal and paternal alleles in the source of
sweat. The detail discussion of which would be made in the
circumstance of credibility of DNA Report .
J] Whether prosecution has proved the circumstance
of seizure of cap having name “Gajju” Exh – 43 ( marked
for DN Analysis ) from spot of incident vide seizure
panchanama Exh 121:
(Circumstance against accused Nos. 1 and 7 )
a] The prosecution relied upon the testimony of
P. W. 19 Mr. Sawai, Investigating Officer, who testified about
seizure of cap . P. W. 6 Panch witness has corroborated his
version . P. W. 19 has also deposed about sending of this
exhibit to Chemical Analyzer for D. N. Analysis.
D 170 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
b] DNA Report Exh222 has analyzed that
mixed DNA profile of sweat detected on Exh43 cap and DNA
profiles of (1) Yogendra Rajkumar Yadav and (2) Rakesh
Khushwaha are identical and from one and the same source of
male origin DNA profiles match with the maternal and paternal
alleles in the source of Sweat. The detail discussion of which
would be made in the circumstance of credibility of DNA
Report .
K] Whether prosecution proves the circumstance of
seizure of Cigarette butts from the terrace of house of
Rajaram Gupta :
( Circumstance incriminating against all accused )
a] Prosecution has tried to prove the
circumstance of seizure of butts by P. W. 19 Investigating
Officer from the terrace of house of Rajaram Gupta vide
Exh – 299 in presence of pancha witness and accused no. 6.
It is contention of Investigating Officer that during preparation
of seizure panchanama of Pistol recovered from Amit Varma
vide Exh298 accused no. 6 Amit informed that on the prior
day of incident they hatched conspiracy and that time, they
had a dinner and smoked those cigarettes together on the
terrace. Hence the cigarettes butts were seized from terrace as
the incriminating piece of evidence. The detail discussion of
which would be made in the circumstance of credibility of
D 171 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
DNA Report .
195] To ascertain the culpability of accused for above
four circumstances, it is necessary to refer to D . N. A. report
Exh222.
DNA REPORT : Prosecution relied upon
Deoxyribonucleic Acid Test(D. N. A. Test ) report placed vide
Exh222 to prove the guilt of the accused persons in the
commission of crime .
A] Prosecution examined P. W. 23 Shrikant Lade ,
Chemical Analyzer, who is M. Sc., BioChemistry with
specialization in BioTechnology and Genetic Engineering and
working as Assistant Chemical Analyzer in Forensic Science
Laboratory, Mumbai having hand on practical work of DNA
testing technique .
B] P. W. 23 Mr. Lade testified that he has
analyzed the material sent for analysis by the Investigating
Officer which were received by Biological Department of
Forensic Science Laboratory, Mumbai and on the basis of
analysis and put his interpretations vide report Exh222.
C] According to DNA Expert, he interpreted on
the basis of analysis that
DNA profile of blood detected on Exh18 full shirt
of Sushil , Exh22 blood stain of Sushil, Exh34
mobile hand set of Spice, Exh38B scrapping,
D 172 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Exh39A Three hundred Rupees currency notes,
Exh39B one fifty Rupees currency note, Exh62
Dupata, Exh63 Dupata are identical and from
one and the same source of male origin DNA
profiles match with the maternal and paternal
alleles in the source of blood. [2] The DNA
profile of blood detected on Ex19A full bush
shirt of Suresh, Exh23 blood stain of Suresh,
Exh33 Bed sheet, Exh40 Dupatta and Exh64
jeans full pant are identical and from one and the
same source of male origin DNA profiles match
with the maternal and paternal alleles in the
source of blood. [3] The DNA profile of blood
detected on Exh2 one single barrel breech
loading country made handgun, Exh20C Sandow
baniyan of Shailesh, Ex32 Bed Sheet, Exh41,
dupata and blood of Shailesh Lakhotia of
Forensic Science Limited, M. L. Case No. DNA
218/2008 are identical and from one and the
same source of male origin DNA profiles match
with the maternal and paternal alleles in the
source of blood.
DNA profile of Saliva detected on Exh65B,
Cigarette butt, Exh65D Cigarette butt, Exh651
Cigarette butt, and Exh65M Cigarette butt and
DNA profile of Jitendra @ Nandbabu Mourya are
identical and from one and the same source of
D 173 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
male origin DNA profiles match with the maternal
and paternal alleles in the source of saliva. (2)
The DNA profile of Saliva detected on Ex No. 65F
Cigarette butt and DNA profile of Amit Hiralal
Verma are identical and from one and the same
source of male origin DNA profiles match with the
maternal and paternal allele in the source of
saliva. (3) The DNA profile of Saliva detected on
Exh No. 65G cigarette butt and DNA profile of
chunbad \@ Pradhan Baburam Kumhar are
identical and from one and the same source of
male origin DNA profiles match with the
maternal and paternal alleles in the source of
saliva.
The DNA profile of sweat detected on Ex41
dupatta and DNA profile of Chunbad @ Pradhan
Baburmkumhar are identical and from one and
the same source of male origin DNA profiles
match with the maternal and paternal alleles in
the source of sweat. (2) The mixed DNA profile of
sweat detected on Exh No. 43 cap and DNA
profiles of Yogendra Rajkumar Yadav and Rakesh
Khushwaha are identical and from one and the
same source of male origin DNA profiles match
with the maternal and paternal alleles in the
source of sweat. (3) The mixed DNA profile of
sweat detected on Ex No. 62 dupatta and DNA
D 174 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
profiles of Rakesh Khushwaha (2) Sunil Virchand
Sharma and (3) Ankit Shukla are identical and
from one and the same source of male origin DNA
profiles match with the maternal and paternal
alleles in the source of sweat. (4) The DNA
profile of sweat detected on Exh63 dupata and
DNA profile of Amit Hiralal Varma are identical
and from one and the same source of male origin
DNA profiles match with the maternal and
paternal alleles in the source of sweat.
D] From these interpretations prosecution tried
to prove involvement of accused no. 4 as traces of Exhibit 62
( dupatta )shows linkages of accused no. 4. That of accused
no. 3 as traces of Exh63 ( Dupatta ) shows linkages of
accused no. 3, and that of accused no. 1 and 7 as traces of
Exh43 (Cap) shows linkages of accused nos. 1 and 7 in the
commission of crime.
E] Prosecution claims that from the
interpretations of analysis of Saliva of cigarettes butts found
on the terrace of the house of Rajaram Gupta shows that prior
to the day of incident accused nos. 3, 6 and 8 smoked cigarettes
while hatching conspiracy with other accused persons .
F] Cross examination of P. W. 23 Mr. Lade is
mainly attacked on the method adopted by him for analysis.
Mr. Lade submitted that he carried out Polymerase Chain
D 175 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Reaction Method product on 3130 genetic analyzer instrument
for getting DNA profiles.
G] It is the contention of the learned Counsels
for accused that use of PCR method for analysis is a defective .
It is submitted that since PCR method is not banned by
Competent Authority, it cannot be said to be unscientific.
H] P. W. 23 has testified that they were
supplied DNA Kit for collection and preserving of samples,
hence, suspicion about contamination of samples is
unwarranted.
I] Learned Counsels for the accused mainly
argued that there is no convincing evidence brought on
record by the prosecution that Muddmeal , cap, dupattas and
other articles sent for DNA profiles were not sealed on spot,
after its seizure and seals were kept intact till those articles
were reached to C. A. Laboratory. Cross examination of P. W. 17
and 19 would reflect that they have deposited muddemal
articles in malkhana 8 days after its seizure. The prosecution
further failed to prove that Muddemal was kept in safe custody.
Thus, possibility of tampering cannot be ruled out.
J] It is submitted that contaminating DNA would
yield a separate weak pattern. It would have been observed on
analysis . As such, such arguments do not hold water. Doubt
raised on Analysis of all the articles seized, sealed, and sent for
DNA printing, is of no avail .
D 176 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
K] In the cross examination, P. W. 23 Expert
admitted that he obtained electro pharograms and submitted
its report vide Exh222. In further cross examination, he has
admitted the preposition on the basis of book written by R. J.
Buttler on Forensic DNA Typing that in Forensic DNA typing if
any one STR locus fails to match when comparing the genotypes
between two or more samples, then the profiles between the
questioned and reference sample will be declared a nonmatch
regardless of how many other loci match.
L] P. W. 23 Mr. Lade further admitted that he
could not obtain result of 8 loci of Exh43 Cap and also could
not obtain result of 7 loci in Exh62 Dupatta. To the question
that since he could not obtain result of 8 loci in Exh43 and 7
loci in Exh62 whether he can opine that they would have
matched or mismatched with loci of DNA of blood of Rakesh
Khushwaha, expert could give his opinion and stated that he
cannot answer. As such, this single aspect allegedly attaching
to the culpability of Rakesh Khushwaha remained unexplained.
M] P. W. 23 Expert also could not explain
whether the loci he has not found in any other DNA samples
would have been matched or mismatched with DNA samples of
other persons. In the cross examination he has clearly admitted
that his interpretation no. 3 of DNA profile of Saliva of
Cigarettes butts are incorrect.
D 177 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
N] The way in which expert tried to prove his
interpretation , is necessary to be seen. At first he clearly
admitted that his report Exh222 is incorrect, but with
permission of the Court he produced on record
electropharogram on the basis of which he reached to the
conclusion and interpreted the analysis. He also corrected his
interpretation with the permission of the Court on the basis of
electropharogram, stating it to be a typographical mistake.
O] On 08092011, P. W. 23 was cross examined
wherein he stated that on the basis of electropharograms he
based his report Exh222. He submitted that he has no
necessity to refer other documents except Electropharograms.
During further cross examination while answering the
interpretation he submitted that his interpretation are based
with the aid of probability value. He submitted that he has
calculated probability value before his deposition before the
Court on 08092011. It is submitted that Electropherogram do
not have any mention of probability value . May it be, there
was no harm to disclose probability value on 08092011 when
Expert testified about electropherogram for substantiating his
interpretations for cross examination. Further he disclosed
probability value was supplied by ABI Biosystem Company and
was not calculated by him . These turns creates suspicion
about method of analysis and interpretations allegedly done by
P. W. 23 Mr. Lade, Expert.
D 178 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
P] P. W. 23 MR, Lade was cross examined with
particular loci wherein at paragraph no. 119 he clearly
admitted that he excluded allele number 9 detected by system
and included allele no. 11 not detected by system, as the DNA
of loci D13s 317 was degraded. At the cost of repetition, it is
submitted that the findings of some loci were not reported on
page no. 25 Exh372 pertaining to Chunbandh. P. W. 23 has
answered it in affirmatively that he failed to report findings of
some loci as it would not have matched with DNA profile of
Chunbandh.
Q] In paragraph no. 120 of the cross examination
he agreed that all the mistakes that can occur in generating this
electropharograms Exh372 has been occurred by him partially.
Taking into account this admission of P. W.23 Mr. Lade, I find,
Expert Mr. Lade could not even explain alleged mistake
committed by him in analysis for substantiating his
interpretation even with original documents of electro
pharograms. Only inference that can be drawn is DNA Report
Exh – 222 is not proved by the prosecution.
R] It is submitted since P. W. 23 Expert has
himself admitted that the mistakes had occurred in generating
electropharograms Exh372, I find, under such circumstances
each and every observation leading to his interpretation
challenged by defence, needs no scrutiny. DNA Report Exh222
is unscientific, thus unreliable. Scientific investigation falls
D 179 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
short to lend support to case of prosecution.
S] I find, prosecution has failed to prove
circumstance of seizure of articles viz. yellow coloured
Exh62 white coloured Duptta Exh63 seized from the rented
house of accused no. 1, and further circumstance of seizure of
Cap Exh43 from scene of occurrence and butts Exh65 (B)
65(D) 65 (F) 65 (G) and 65 (M) from the terrace of house of
Rajaram Gupta against any of the accused persons .
T] From the aforesaid discussion, I find that P.
W. 23 Mr. Lade, Chemical Analyzer failed to substantiate his
interpretations presented vide Exh222. As such, on the basis
of Exh222, the prosecution has miserably failed to establish
link of any accused with the commission of crime .
196] As to Point No. 4 : Whether prosecution
has proved offence punishable under Section 120B of Indian
Penal Code against
i] Accused no.1 and accused no. 2 .
ii] Accused Nos. 3 to 8
So far as offence under Section 120B of
Indian Penal Code against Accused no.1 and accused no. 2 , it
is submitted that Accused no. 1 Rakesh is arrested with aid of
Section 120B of Indian Penal Code, as he conspired with other
accused to achieve the object of conspiracy in commission of the
dacoity.
D 180 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
A] To ascertain involvement of accused no.1
Rakesh Khushwaha along with accused no. 2, it is necessary to
see whether prosecution has proved the circumstance of
Voluntary disclosure statement of accused no. 2 Sunil Sharma
B] Prosecution has proved recovery of Guns
Exhs 1, 2, and 3 at the instance of accused no. 2 Sunil Sharma
vide Exh285.
C] It is the statement of Sunil Sharma that
Rakesh Khushwaha @ Pappu has handed over these guns to
him.
D] Conspiracy consists in the agreement of two
or more persons to do an unlawful act or to do a lawful act by
unlawful means.
E] S. 10 of The Indian Evidence Act
Things said or done by conspirator in
reference to common design Where there is reasonable
ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything
said, done or written by any one of such persons in reference to
their common intention, after the time when such intention was
first entertained by anyone of them, is a relevant fact as against
each of the persons believed to so conspiring, as well for the
purpose of proving the existence of the conspiracy as for the
purpose of showing that any such person was a party to it.
D 181 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
F] The basic principles which underlines Section
10 of The Evidence Act is theory of Agency. Thus every
conspirator is an agent of his associates in carrying out the
object of conspiracy. Under principles contained in Section 10
of the Evidence Act, once the conspiracy to commit an illegal act
is proved, act of one conspirator becomes act of other.
G] Hon'ble Apex court in the case of Sanju Vs
State of Kerala, reported in 2001 Supreme Court, 175 held
as under
“ Agreement to criminal conspiracy This
section mainly be divided into two – the first
part talks of where there is reasonable
ground to believe that two or more persons
have conspired to commit an offence or an
actionable wrong, and it is only when this
condition precedent is satisfied that the
subsequent part of the section comes into
operation and it is material to note that this
part of section talks of reasonable grounds to
believe that two or more persons have
conspired together and this evidently has
reference to Section 120A, where it is
provided “ when two or more persons agree
to do or cause to be done “. It is well settled
D 182 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
that act or action of one of the accused could
not be used as evidence against the other .
But an exception has been carved out in
Section 10 of the Evidence Act in cases of
conspiracy. The second part operates only
when the first part of the section is clearly
established i. e. there must be reasonable
grounds to believe that two or more persons
have conspired together in the light of the
language of Section 120A. It is only then the
evidence of action or statements made by one
of the accused could be used as evidence
against the other.”
H] I hold that action and statements made by
accused no. 2 can be used as evidence against other accused in
view of principles of Section 10 of The Evidence Act since the
conspiracy is proved.
I] By placing reliance upon the ratio laid down
in aforesaid Authority, I find, Call Data Reports have held to
be part of communication between accused no. 2 and accused
no. 1 in hatching conspiracy for commission of dacoity. It is
statement of Sunil Sharma that Rakesh Khushwaha handed over
country made hand guns to him. Leading to statement of his
willingness to recover those guns, country made handguns were
D 183 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
found and recovered duly. This conduct of accused no. 2 is also
a relevant fact.
J] Accused no. 2 Sunil Sharma who received
guns from accused no. 1 Rakesh Khushwaha, kept it with him
till his arrest on 28052008 , which infers that these acts
were done with their common intention. It suggests assailants
have come together to the pursuit of unlawful object and
achieved it .
K] In the light of language of 120A, I find,
there are reasonable ground to believe that two or more
persons had conspired to commit an offence, which is being
surfacing on record, therefore, statement of accused no. 2
Sunil Sharma can be used against accused no. 1 Rakesh
Khushwaha as evidence. As such, prosecution has proved
involvement of Rakesh Khushwaha in the commission of Crime.
Regarding plea of alibi
197] Regarding plea of alibi raised by accused
nos. 1 and 3 by examining D. W. 1 Dhaniram Yadeo vide
Exh394, testimony of Dhaniram Yadav reflects that accused
Rakesh Khushwaha runs a shop beside his house situated at S.
D. M. Colony, Karvi, District : Chitrakut . No document of
registration or licence or payments of essentials services has
been brought on record, which would disclose at least
location of shop, ownership or occupation of accused no. 1 on
it. No document is placed on record to substantiate the claim
D 184 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
of the accused that he runs shop at S. D. M., colony. In written
notes of argument, accused no. 1 has submitted that news was
published in local news paper disclosing his alleged abduction,
but no such document / news paper is produced on record.
A] Testimony of Dhaniram Yadav further
creates doubt that inspite of getting knowledge from Kotwal
Sharad pratapsingh that no official from their Thana Karvi had
gone any where to arrest anybody, he could not suspect arrival
of alleged persons named Devendrasingh, Shaileshsingh and
Anilsingh of U. P. S. T. F., along with 7 to 8 persons knocking
his door at odd hours at 100 A. M. and lifting accused no. 1
Rakesh Khushwaha and accused no. 3 Yogendra / Nandbabu
Mourya unlawful and fishy. A person like Dhaniram yadeo who
had worked as informer for police in Dauda Dacoit operation
failed to report alleged impersonation to police station. As
such in absence of supporting documentary evidence, I find,
testimony of D. W. 1 Dhaniram Yadav is not reliable and
trustworthy. It can be gathered that because of friendship, he
has been examined and deposing behest of accused nos. 1 and
3 to prove their defence of alibi and save them. I conclude that
accused nos. 1 and 3 have failed to prove alibi.
B] Considering these circumstances, I hold with
the aid of Section 120A of Indian Penal Code prosecution has
proved involvement of accused no. 1 Rakesh Khushwaha and
accused no. 2 Sunil Sharma in the commission of crime as a
D 185 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
conspirator beyond reasonable doubt.
C] So far as offence under Section 120B
against other accused is concerned, it is submitted that
Prosecution has proved act of commission of dacoity in which
murder of Suresh Lakhotia and Sushil Lakhotia and causing
grievous hurt to Shailesh Lakhotia was committed and by
accused nos. 3 to 7 .
D] Undoubtedly, offence of dacoity is
committed. The evidence of CDRs of mobiles communications
of accused nos. 3 to 7 ( as well as accused nos. 1 and 2 )
brought by prosecution on record as to the transmission of
thoughts transmitted before and after commission of crime,
certainly leads to the conclusion that it was an agreement to
do an act in violation of Law and was designed for commission
of dacoity . Assailants/ accused nos. 1, 3 to 8 were arrested at
same place. Their accompaniment even after commission of
crime is self eloquent . Taking this circumstance cumulatively
makes me to believe that accused nos. 1 to 7 have conspired to
commit an offence and dacoity was committed in pursuance to
this agreement.
E] As transpires from the CDRS such, conduct
of sharing of thoughts through communications between
accused nos. 1 to 7 are sufficient to hold accused nos. 1 to 7
guilty for the offence under Section 120A of Indian Penal Code.
Hence, I find prosecution has successfully proved ingredients
D 186 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
of offence under Section 120B of Indian Penal Code against
accused nos. 1 to 7 beyond all reasonable doubt .
F] From the aforesaid discussion, I conclude that
prosecution has successfully proved ingredients of offences
under Sections 120A, Section 396 Section 395 read with
Section 397 of Indian Penal Code, against Accused No. 1
Rakesh, accused no. 2 Sunil Sharma, accused no.3 Nandbabu
Mourya, accused no. 4 Shambhu, accused no. 5 Ankit Shukla,
accused no. 6 Amit Varma and accused no. 7 Yogendra Yadav.
Hence, I answer Point Nos. 1 to 4 accordingly .
198] Whether prosecution successfully proves
guilt of accused no. 8 Chunbandh for the charges levelled
against him.
A] With regard to involvement of accused no. 8
is concerned, prosecution claims that involvement of accused
no. 8 Chunbandh was disclosed on receipt of DNA Report
Exh222.
B] It is necessary to scrutinize whether
observations regarding Chunbandh made in Ex222 is proved
by P. W. 23 Mr. Lade, Expert . P. W. 23, Mr. Lade proved
contents of Exh222 and tried to prove his interpretation that
DNA profile of sweat detected on Exh41 Duptatta and DNA
profile of Chunubandh are identical and from one and the
same source of male origin. DNA profile match with maternal
and paternal alleles in the source of sweat leading to
D 187 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
involvement of accused no. 8 in the commission of crime.
C] To negate this analysis, P. W. 23 Mr. Lade
was cross examined. In the crossexamination, P. W. 23 has
admitted that at page no. 25 of Exh372 (Electropherogram)
findings of some locus have not been reported. In answer to
the question that on page no. 25 Exh372 the finding of some
locus have not been reported as it would not have matched
with DNA profile of accused Chunubadh Expert P. W. 23 Mr.
Lade has answered it affirmatively that ' Yes ' DNA of some of
locus are degraded. Taking into account testimony of P. W.
23 Mr. Lade, one cannot deny that the interpretations of
Exh222 are vague and not conclusive.
D] In the paragraph no. 41 of his cross
examination, Mr. Lade has admitted that his interpretation no.
3 of DNA profile of Saliva on 65 (g) and about the DNA profile
of Chunubandh of page no. 9 is incorrect that DNA profile of
Saliva detected on Exh65 (g) Cigarette butts and DNA profile
of Chunbandh are identical and from one and the same
source of male origin. DNA profile matched with maternal and
paternal alleles in the source of Saliva. P. W. 23 himself tried
to rectify his mistake and with the permission of Court,
produced on record electropherogram Exh372, on the basis of
which , he presented his interpretations vide Report Exh222.
Through Exh372 Mr. Lade, Expert tried to substantiate his
interpretation regarding Saliva detected on cigarettes butt of
D 188 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
Exh65 (g) that of accused no. 8 Chunubandh as correct. But,
in his cross examination, he admitted the suggestion that all
the mistakes that can happen in generating this
electropharogram Exh372 has occurred . This admission is
decisive which clearly establishes that observation for analysis
made by DNA Expert for reaching to the aforesaid conclusion
incriminating accused no. 8, is unscientific, thus unreliable. As
such, I find, prosecution has failed to prove this circumstance
even against accused no. 8.
E] Testimony of P. W. 19 and P. W. 21 reveals
that though charge sheet was filed against accused no. 8
Chunbandh, in this crime, he was discharged under Section
169 of Criminal Procedure Code. Investigating Officer after
receipt of DNA reports has submitted supplementary charge
sheet against accused no. 8 . As I have held that DNA report
is not based on reliable scientific evidence. Exh 222 cannot
be said to be conclusive proof of showing involvement of
accused no. 8 in the crime.
F] In my view, though CDRS produced on record
shows his communication with other accused and he was
arrested at Madiyav along with other accused, I find since once
accused no. 8 is discharged on the basis of DNA report which
is said to be only piece of evidence leading to his accusation for
filing of supplementary charge sheet, since DNA report
Exh222 is held to be unscientific, I have no other go to acquit
D 189 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
accused no. 8.
G] I hold there is no iota of evidence of his
involvement in commission of dacoity or murders further there
is no seizure of any arms from accused no. 1, I find no cogent
and reliable evidence has been brought by prosecution against
accused no. 8 . I hold that prosecution has failed to prove the
ingredients of offence under Section 120B, 396, 395 read with
Section 397 and Section 3/25 of Arms Act against accused
no. 8. Hence, I find accused no. 8 deserves to be acquitted.
H] Thus, I hold that accused no. 8 deserves to be
acquitted from all charges levelled against him. However, I
hold, accused nos. 1 to 7 are guilty of the offence punishable
under Sections 120B read with section 396, Section 120B
read with Section 395 read with Section 397 of Indian Penal
Code, hence, accused nos. 1 to 7 are convicted for the offence
punishable under Sections 120B read with section 396,
Section 120B read with Section 395 read with Section 397 of
Indian Penal Code . In the result, for accused no. 8, I answer
Point Nos. 1, 2 , 3 and 4 in Negative.
199] As to Point No. 5 : Whether prosecution
has proved the offence against accused Nos. 1 to 8 for
commission of offence under Section 201 of Indian Penal Code.
From the discussion made in above said
paragraph, it is clear that circumstance of seizure of hearth
wherein alleged incriminating evidence of blood stain shirt and
D 190 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
SIM card were allegedly burnt by accused no. 1 for screening
offence committed by all other accused persons, has been
answered in negative, I find, prosecution has failed to prove the
offence under Section 201 of Indian Penal Code against any of
the accused persons. Hence, I answer Point No. 5 accordingly.
200] As to Point No. 6 : Whether prosecution has
proved the offence under Section 202 of Indian Penal Code
against accused Nos. 9 Omprakash Gupta and 10
Gaurishankar Shah
A] To prove the offence under Section 202 of Indian
Penal Code, it is incumbent on the part of the prosecution to
prove that in spite of knowledge of commission of offence of
dacoity, intentionally, accused failed to give information to
police, which they are legally bound to give.
B] It is necessary to take the circumstances for
scrutiny one by one.
As per the prosecution case on 05062008
accused No. 9 Omprakash Gupta, brother in law of accused no.
1 Rakesh Khushwaha has produced one Jean pant and one chit
to police station Lakadganj, which was seized by police under
seizure panchanama Exh 147. I have already discussed that
this jean pant and chit bearing vehicle number is not reliable
piece of evidence.
C] Second circumstance would be, proved CDRS.
CDR Reports Exh 216, 232, 231, 230, 235, 234, 332, 233,
D 191 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
271, 345, 270 have proved the communication of accused no. 9
Omprakash Gupta with accused no. 1 Rakesh Khushwaha
during the span from 19052008 to 26052008 for 24 calls,
and 33 calls vice versa, after commission of crime, further on
08052008 on the day of incident Omprakash Gupta has made
5 calls to Shambhu and on the same day i. e. on 852008
Shambhu made 3 calls to accused no. 9 Omprakash, likewise,
accused no. 9 Omprakash has made total 28 calls to accused
no. 3 Nandbabu after commission of crime from, as reflects
from CDRS and summary Art14 placed on record. This
communication specifies that accused no. 9 Omprakash Gupta
was in touch with accused no. 1 as well as with other accused
persons. Communication of accused no. 9 with accused no. 1
being relative may be unsuspicious, but since accused no. 9
Omprakash Gupta has communicated simultaneously with
other accused persons, as reflects from CDRS, these
communications with accused no. 1 Rakesh cannot be ignored.
D] Accused no. 9 Omprakash Gupta has
produced jean pant and chit after arrest of accused. This act
cannot save him from the culpability. His communications
clearly establish his linkages with accused persons even after
commission of crime and it can be gathered that accused no. 9
was knowing or atleast has reason to believe that the offence
was committed, but the information was not given to the
Investigating machinery in that regard by him. From the
D 192 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
linkages established, it can be gathered that the said omission
was intentional. Hence, I find, accused no. 9 Omprakash
Gupta omitted to give said information which he is bound to
give in accordance with law, hence, he is guilty of the offence
under Section 202 of Indian Penal Code. Hence, I hold that
accused no. 9 Omprakash Gupta is guilty for the offence
punishable under Section 202 of Indian Penal Code. As such,
accused no. 9 is liable to be convicted under Section 202 of
Indian Penal Code. I answer Point No. 6 accordingly .
E] So far as culpability of accused no. 10
Gaurishankar Shahu for the offence under Section 202 of
Indian Penal Code is concerned; Except handovering of
motorcycle bearing No. MH31BY3725, which was allegedly
given by him to accused no. 2 for commission of crime, which I
have discussed has not led the prosecution case any further. As
such , the prosecution has failed to bring on record any other
material against accused no. 10 to attach any culpability .
Hence, I hold that prosecution has failed to prove the charges
levelled against accused no. 10 Gaurishankar Gupta, hence he
deserves acquittal from the offence punishable under Section
202 of Indian Penal Code.
F] I hold only accused no. 9 guilty for the
offence punishable under Section 202 of Indian Penal Code,
and he needs to be convicted and answer Point No. 6
accordingly.
D 193 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
201] As to Point No. 7 : To prove the offence
under Section 3/25 of Arms Act, the prosecution has to prove
beyond reasonable doubt that P. W. 19 Shri Sawai,
Investigating Officer, in pursuant to the confessional statement
of accused no. 2 Sunil Sharma vide Exh284, has recovered
three country made handgun from the possession of accused
no. 2 Sunil Sharma. Likewise P. W. 19 also recovered one
Pistol in pursuant to the confessional statement of accused no.
6 Amit Verma vide Exh 297. Since the said acquisition and
possession of fire arms and ammunition have been discovered
in pursuant to the statement of accused nos. 2 and 6. It speaks
that they were in acquisition and conscious possession of fire
arms and ammunition. Since accused nos. 2 and 6 failed to
submit any licence for possession of said fire arms and
ammunition.
I hold accused no. 2 Sunil Sharma and
accused no. 6 Amit Varma guilty of the offence and liable to
be convicted under Section 25 (i) (b) of Indian Penal Code.
Hence, I answer Point No. 7 accordingly .
202] As to Point No. 8 : In view of the
above discussion, I hold that prosecution has failed to prove
offence punishable under Section 120B read with Section 396,
Section 120B read with Section 395 read with Section 397,
Section 201 of Indian Penal Code and Section 3/25 of Arms
Act against accused n. 8. The prosecution has also failed to
D 194 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
prove ingredients of offence punishable under Section 202 of
Indian Penal Code against accused No. 10. So also, prosecution
has failed to prove the ingredients of offence under Section
3/25 of Arms Act against accused Nos. 1, 3 to 5, 7 and 9.
203] That, Prosecution has successfully proved the
offence punishable under Section 120B read with Section 396,
Section 120B read with Section 395 read with Section 397,
Section 201 of Indian Penal Code against accused Nos. 1 to 7.
Thus, for these offences, accused nos. 1 to 7 are held guilty.
The prosecution has also proved the offence under Section
202 of Indian Penal Code against accused No. 9 Omprakash
Gupta, thus, for this offence, accused no. 9 is held guilty.
Prosecution also proved the offence under Section 3/25 of
Arms Act against accused Nos. 2 and 6 beyond any reasonable
doubt. Thus, for these offences accused nos. 2 and 6 are held
guilty. and they are liable to be convicted.
Here, I take pause to hear both the side on
the point of sentence.
Nagpur [ V. P. Ingle ], Date : 06022013 Additional Sessions Judge,
Nagpur.
204] Heard, learned A. P. P. Shri Mendhe for the
State, who argued that accused have committed gruesome
murder of Lakhotia Brothers in a broad day light, in a
D 195 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
preplanned dacoity . Accused dared to commit said crime in
crowded commercial area of Central Avenue, Nagpur . He
further submitted that because of such incident, public safety
is at stake. Said crimes against society needs to be dealt with
deterrent judicial hands. He submitted that death penalty is
ultimate to deter other persons not to commit and repeat such
crime. He further argued that, no leniency be shown to the
accused no. 9, taking into account gravity of crime.
Learned A. P. P. for the State submitted death
penalty be awarded to convicts accused nos. 1 to 7 .
205] Learned Adv. Tiwari, Adv. Gadling, Adv.
Bhangade, Adv. Jaltare, Adv. Gaikwad, Adv. Rizwy appearing
for accused persons argued that matter does not fall within the
category of rarest of rare case. Prosecution has not established
motive. Dacoits had no intention to commit murder of
anybody. Murders have been committed in spur of moment.
Taking into consideration these facts, minimum sentence
prescribed under Law, be awarded.
206] Learned Advocate Bhangade for accused no. 9
Omprakash Gupta submitted that accused is a young, married
boy, shouldering responsibility of his family. Hence, minimum
punishment be awarded.
207] After giving due consideration to the facts and
circumstances of the case and after hearing accused persons,
this Court comes to the conclusion that in present set of fact,
D 196 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
the matter does not come in purview of rarest of rare case. The
object of imposing sentence is to protect the society and to
deter the criminals in achieving the avowed object of law by
imposing appropriate sentence .
208] No doubt present case is not rarest of rare
case. In the commission of dacoity dacoits have committed
brutal murders of two brothers. Consecutive two murders by
firing in two different places cannot be said to be unintentional
and occurred within spur of moment. As such I am inclined to
award punishment of imprisonment of life to accused
Nos. 1 to 7 .
In the sequel, I proceed to pass the following order.
ORDER
01] The accused Nos. 1] Rakesh @ Pappu S/o
Rameshchandra Kushwaha, 2] Sunil Birchand Sharma, 3]
Bachha @ Nanbabu S/o Bachanulal Mourya, 4] Shambhu
Sitaram Raikwar, 5] Ankit Rameshchandra Shukla, 6] Amit
Hiralal Verma, 7] Yogendra Rajkumar Yadao, are hereby
convicted for the offence under Section 120B read with
Section 396 of Indian Penal Code, as per the provisions of
Section 235 of Criminal Procedure Code and they are sentenced
to suffer imprisonment for life and to pay a fine of Rs.
10,000/ ( Rs. Ten Thousand only ) each in default to suffer
simple imprisonment for 1 ( one ) years .
D 197 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
02] The accused Nos. 1] Rakesh @ Pappu S/o
Rameshchandra Kushwaha, 2] Sunil Birchand Sharma, 3]
Bachha @ Nanbabu S/o Bachanulal Mourya, 4] Shambhu
Sitaram Raikwar, 5] Ankit Rameshchandra Shukla, 6] Amit
Hiralal Verma, 7] Yogendra Rajkumar Yadao, are further
convicted for the offence punishable under Section 120B
read with Section 395 read with Section 397 of Indian Penal
Code, as per the provisions of Section 235 of Criminal
Procedure Code and they are sentenced to suffer Rigorous
imprisonment for 7 ( Seven ) years and to pay a fine of Rs.
5,000/ ( Rs. Five Thousand only ) each in default to suffer
simple imprisonment for 6 ( Six ) Months.
03] The accused Nos. 2] Sunil Birchand
Sharma, 6] Amit Hiralal Verma, are hereby convicted for the
offence under Section 3/25 of The Arms Act, 1959 as per the
provisions of Section 235 of Criminal Procedure Code and they
are sentenced to suffer Rigorous imprisonment for 1 years
and to pay a fine of Rs. 5,000/ ( Rs. Five Thousand only )
each in default to suffer simple imprisonment for 15 days .
04] The accused No. 9 Omprakash S/o.
Rajaram Gupta, is hereby convicted for the offence under
Section 202 of Indian Penal Code as per provisions of Section
235 of Criminal Procedure Code and he is hereby sentenced
to suffer rigorous imprisonment for 6 ( Six ) Months and
D 198 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
to pay fine of Rs. 500/ ( Rs. Five Hundred only ) in default
to suffer S. I. for 15 ( Fifteen ) days.
05] All the respective sentences under each
head of the relevant Sections of the Indian Penal Code
regarding Accused Nos. 1 to 7 shall run concurrently.
06] The period of detention already undergone
by the accused Nos. 1 to 7 and 9 during the investigation or
trial shall be given setoff against the respective term of
imprisonment imposed on them as per the provision under
Section 428 of Criminal Procedure Code.
07 ] Accused No. 9 Omprakash S/o. Rajaram
Gupta is on bail during pendency of trial.
08] Accused No 8 Chunubadh @ Pradhan
Baburam Kumhar ( Accused in S. T. No. 84 of 2009 ) is
hereby acquitted as per the provisions of Section 235 of
Criminal Procedure Code of the offence under Sections 120B
read with Section 396, 120B read with Section 395/397 and
Section 201 of Indian Penal Code and Section 3/25 of The Arms
Act, 1959.
09] Accused No. 1 Rakesh @ Pappu S/o
Rameshchandra Kushwaha, Accused No. 3 Bachha @ Nanbabu
S/o Bachanulal Mourya, Accused No. 4 Shambhu Sitaram
Raikwar, Accused No. 5 Ankit Rameshchandra Shukla, Accused
No. 7 Yogendra Rajkumar Yadao, Accused No. 9 Omprakash
D 199 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
S/o. Rajaram Gupta, Accused No 10 Gaurishankar Shahu are
hereby acquitted as per the provisions of Section 235 of
Criminal Procedure Code of the offence under Section 3/25 of
The Arms Act, 1959.
10] The Accused Nos. 1 to 10 are hereby
acquitted from the charge under Section 201 of Indian Penal
Code, as per the provisions of Section 235 of Criminal
Procedure Code.
11] The Accused No 10 Gaurishankar Shahu
is hereby acquitted from the charge under Section 202 of
Indian Penal Code, as per the provisions of Section 235 of
Criminal Procedure Code.
12] The fire arms viz. 3 Revolvers and 1 Pistol,
cartridges, empties be sent to District Magistrate for its disposal
according to law, after period of one year; and if appeal is
preferred then as per the orders of Appellate Court.
13] The seized cash of Rs. 350/ ( Rs. Three
Hundred Fifty only ) is confiscated and be credited to the State.
14] The other valuable property i. e. laptop,
pen drive, mobile phones and motorcycles bearing No. MH31
AR9557 ( Kinetic Challenger ) be sent to learned Chief
Judicial Magistrate, Nagpur as per the provisions of Section 452
of Criminal Procedure Code for its disposal according Law.
D 200 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
15] Other seized property such as clothes of
deceased, injured and accused persons, being worthless be
destroyed after period of one year; and if appeal is preferred
then as per the orders of Appellate Court.
16] The claimant Shri Jogeshwar Jagan
Madavi of the seized motor cycles viz. MH – 31 BT 6150
Bajaj Pulsar 150 DTS, Shri Gaurishankar Shyamsunder Shahu
of Motorcycle Hero Honda Super Splender bearing No. MH31
BY3725 are already put in interim custody of them as
registered owner of it supratnama bonds stand discharged.
17] Motorcycle Hero Honda ( Splender )
bearing No. MH31BA4060 seized during investigation which
was given to Ambazari Police Station in Crime No. 130 of
2008, be given to its registered owner. Police Station Officer,
Ambazari Police Station is directed to file compliance report in
that respect to this Court accordingly.
18] Motorcycle Hero Honda (Passion )bearing
No. MH31AV4081 seized during investigation, be given to its
registered owner,if claimed, on verification of documents.
19] Copy of Operative Order of Judgment be
given to the Police Station Officers (i) Lakadganj Police Station
and (ii) Ambazari Police Station, Nagpur for compliance
accordingly.
D 201 S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)
20] The Judgment is dictated and pronounced
in presence of accused persons, their respective learned
Counsels and learned A. P. P.
Since transcription of Judgment will take
considerable time, the accused persons be produced before this
Court for collecting copy of Judgment on 13022013 .
Nagpur Vibha P. Ingle ),Date : 06022013 Additional Sessions Judge,
Nagpur