Bombay High Court
Deepak Balkrishna Naik @ Manish @ Gotya @ ... vs The State Of Maharashtra on 11 March, 2004
Bench: V.G. Palshikar, P.V. Kakade
JUDGMENT Kakade, J.
1. Both the appellants, original accused Nos. 1 and 2, have preferred this appeal against the Judgment and Order dated 1.12.1998 passed by Additional Sessions Judge, Kalyan in Sessions Case No. 12 of 1997, wherein they were convicted for offence punishable under Section 302 r/w 34 of I.P.C. and were sentenced to suffer life imprisonment and to pay fine of Rs. 1000/- in default to suffer R.I. for three months. They were, however, acquitted of all other offences under Sections 147, 148, 302 r/w 149, 307 r/w 149, 307 r/w 34 of IPC and under Section 27(2) of the Arms Act along with other three accused persons.
2. The facts giving rise to the present case, in brief, are thus-
3. One Tanaji Koli was lodged in the prison at Amrawati as an under trial prisoner and he was to be brought from Amrawati to Mumbai for being produced in the court in Mumbai to attend one sessions case. Police Constable Dilip Nirapure, Police Constable Mankar and Police Head Constable Bhatkar brought the prisoner Tanaji Koli from Amrawati to Mumbai and he was produced before the court in Mumbai on 17.9.1993. On the same day prisoner Tanaji Koli was remanded to judicial custody by the Court and case was adjourned to 1.10.1993. It is the case of the prosecution that the said prisoner was taken to the court at V.T. by taxi to contact his advocate. Thereafter the prisoner was brought to V.T. Station along with police squad and boarded in Special Compartment adjoining to engine of Vidharbha Express. The train left the V.T. Station at about 7.35 p.m. Police Constable Nirapure, Police Constable Mankar and Police Head Constable Bhatkar alongwith the said prisoner were sitting in the compartment. There was nobody else in the said compartment. The prisoner was sitting by the side of luggage facing towards engine. Police Constable Mankar was sitting by the side of the said prisoner. Head Constable Bhatkar was sitting infront of the prisoner and Complainant Nirapure was sitting by the side of Police Head Constable Bhatkar holding a loaded stain-gun. The train reached at Kalyan Railway Station at about 9.00 p.m. at that time about 6/7 persons suddenly opened fire through the window at Tanaji Koli, who was sitting by the side of window.
The prisoner was injured and fell in between two benches in the compartment. Head Constable Bhatkar and Police Constable Mankar also sustained bullet injuries. Complainant Nirapure-Police Constable ran towards the door of the compartment and was about to chase the assailants but they fled away. There was a commotion and some persons chased the assailants. The complainant could not open the fire since peoples were chasing the assailants. The assailants had fired for about a minute continuously. The Railway Police gathered there and Police Head Constable Bhatkar, Police Constable Mankar and prisoner and one of the assailant who was nabbed by the police were taken to the hospital. The assailant apprehended at the railway platform is shown as Accused No. 1 i.e. Deepak Naik. Police Head Constable Bhatkar, Police Constable Mankar and accused No. 1 were treated in the hospital and they were sent to Central Hospital, Ulhasnagar. Prisoner Tanaji Koli was declared dead by the medical officer. Head Constable Bhatkar also died while under treatment at the hospital. Thereafter Constable Nirapure went to Kalyan Police Station and lodged his complaint.
4. The offence under Section 302, 307 r/w 34, 147, 148, 149 of IPC as well as under Sections 3 and 4 of the Arms Act were registered at Kalyan Police Station at C.R. No. 1 174/93. P.I. Patil recorded the complaint and registered the offence and carried the investigation. The panchnama was drawn at the scene of offence by P.S.I Mulani, who conducted the Panchnama. He attached revolver, cartridges, etc. under panchnama. P.I. Patil drew the inquest panchnama on the dead body of Tanaji Koli. He attached clothes under panchnama. He also attached clothes of Head Constable Bhatkar under panchnama on 19.9.1993. P.S.I. Mohite, attached to Kolsewadi Police Station who was allegedly on patrolling duty chased the accused No. 2 Nilesh Ajgaonkar, who was running from the scene of offence. After his apprehension accused was produced before P.I. Patil of Kolsewadi Police Station, who attached revolver, cartridges etc. from accused No. 2 under panchnama. P.S.I. Kamathe of Kalyan Railway Police Station, who had proceeded to platform No. 5 of Kalyan Railway Station immediately after the incident and who allegedly chased the accused, had given custody of accused No. 1, and he was shifted to the hospital. He attached belongings of accused No. 1 under panchnama or the very same day. On completion of the investigation the charge-sheet was filed in the court. The learned Magistrate committed the case to the Court of Sessions.
5. The learned Additional Sessions Judge framed the charge against the accused persons for the impugned offences, to which they pleaded not guilty. The defence of the accused was that of total denial of any criminal liability. They have also denied any involvement in the incident. The prosecution led its evidence at length. On which basis the learned Trial Judge came to the conclusion that the evidence on record was sufficient to hold the accused Nos. 1 and 2 guilty of causing murder of Tanaji Koli and Police Head Constable Bhatkar and accordingly proceeded to convict and sentence the accused in aforesaid manner for the impugned offences.
Hence the appeal.
6. We heard Mr. Mundargi, the learned counsel for the Appellants and Mrs. Bhosale, the learned APP for the State. We have also perused the entire evidence on record.
7. At this juncture we may note that while appreciating the entire evidence on record, it must be borne in mind that the incident had occurred at one of the busiest railway unctions and at the time when the platforms of Kalyan Railway Station are crowded.Further, it cannot be disputed that the attack on deceased Tanaji Koli and escorting party of the police was well arranged and pre-planed. The very fact that the assailants proceeded to the first bogie of the train viz. Vidharbha Express, and opened the fire through its window on the inmates, would show the prior knowledge of the assailants that Tanaji Koli was travelling in the said train and compartment in Police escort. It also cannot be disputed that the circumstances under which the attack was made would show that the commuters present on the platform in the vicinity of first compartment of the train were naturally frightened and ran helter-skelter when they heard or saw shots being fired Inside the railway compartment and therefore, absence of actual eye witness to the incident, either from police or from people at large is very well explained. No doubt the complainant himself was one of the escorting party and has narrated the incident as per his bservation. However, the fact remains that there was no independent witness to the incident in general, or to identify the assailants. This position, coupled with immediate subsequent events in apprehension of some of the assailants, explains as to why the prosecution case is solely based upon the evidence consisting of police witnesses. Moreover, the very nature of the incident is reflective of the terror in the mind of those independent witnesses who were called to assist the investigation by working as panch witnesses, who have turned hostile to the prosecution while giving testimony before the court. However, the evidence of these hostile panch witnesses, in our considered view, has not caused damage to the prosecution case especially when their signatures on the said panchnama are duly proved on record through the respective officers, who have drawn the panchnamas at various times in the course of the investigation. With these aspects in mind, let us turn to the actual evidence on record.
The evidence of PSI Kamathe, P.W.21, shows that he was attached to Kalyan Railway Police Station in the year 1993 and working as PSO on 17.9.1993. When he was on duty at 9.00 p.m. he came to know that there was firing in Vidharbha Express at Kalyan Railway Station on Platform No. 5. Therefore he along with his staff proceeded to Train and on making enquiry he came to know about the details. He gave instructions to his staff to shift injured Police Head Constable Bhatkar, Police Constable Mankar and victim Tanaji Koli to the Corporation Hospital. The Constable present on the spot informed him that the accused were running towards Kolsewadi at the distance of about one km. from Kalyan Railway Station, and therefore, Constables Katam, Oval and Bijapure were chasing them. He along with his staff also started chasing the assailants towards Kolsewadi. When he reached Kolsewadi Tunel No. 2 he found that police Constables Bijapure, Oval and Katam had caught hold of one of the accused. On making enquiry with them they had informed that two accused persons were dragging the said person but as they saw the Constables they left him and ran away. Therefore, the said accused person was taken into custody and he asked his constables to chase those accused who had ran away. He along with his staff brought the injured accused to Corporation Hospital. The injured accused i.e. Accused No. 1 Deepak was treated by the doctor and thereafter was taken into custody. He also attached belongings found on the person of accused No. 1 under panchnama.
The evidence of PSI Kamathe is corroborated by evidence of Bijapure, P.W. 25. According to him, he was attached to Kalyan Railway Police Station in the month of September, 1993 and on 17.9.1993 he was on detection duty at the station. He along with other constables was standing on platform No. 4 near the office of ASK. At about 9 p.m. Vidharbha Express came on platform No. 5. They heard the noise and therefore went near the place and they were informed that there was firing on first bogie adjacent to the engine. They also found blood lying on the platform and one revolver was lying nearby. The passengers informed him that the persons who had fired had gone towards Kolsewadi. Therefore he along with other constables went in chase of the assailants. He saw that two persons were proceeding towards Kolsewadi dragging one person, however they dropped that person and ran away. Constable Bijapure and others reached near the injured person and took him in custody. In the meantime PSI Kamathe who had followed them came on the spot. In the meantime Kolsewadi Police staff had come from front side and caught the said person, who was running towards Kolsewadi main road. They reached the place where the person was caught by Kolsewadi Police. The name of other person who was caught near Kolsewadi Main Road was Nilesh Ajgaonkar, Accused No. 2.
The evidence of PSI Mohite, P.W.12, shows that he was attached to Kolsewadi Police Station. According to him on 17.9.1993 he along with police head constable, Sapkal, Police constables Choudhari, Bhosale and Nigade and other staff was on patrolling duty from police station to platform No. 7 booking office of Kalyan Railway Station. At about 9.35 p.m. some people were found to be coming running from platform No. 7 towards Kolsewadi. He also came to know from other passengers that there was firing at Kalyan Railway Station. As they were proceeding onwards he saw one person coming towards them. He was found to be stained with bloods and therefore they suspected and surrounded him and took him in custody. In his personal search he was found with revolver at his waist along with five cartridges found in the said revolver, out of which four were empty and one was live. The revolver had number 33844. The belongings found on accused No. 2 were seized under panchnama, including the numbers of the empty cartridges, which were noted in the panchnama. This, entire evidence is again corroborated by testimony of Inspector Patil, who has stated that he was attached to Kolsewadi Police Station at the relevant time and he was present at the Police Station. On 17.9.1993 at about 9.30 p.m. PSI Mohite produced accused No. 2 before him and two panchas were called and personal search was made. The said person disclosed his name as Nilesh Shantaram Ajgaonkar and revolver was found at his waist. The said revolver with five cartridges, out of which four were empty and one was live, were seized along with other belongings under panchnama.
8. This evidence of apprehension of accused Nos. 1 and 2 finds support by way of corroboration by PSI More, PW. 23, and station diary entries made by him of the entire process. PSI More stated that he was attached to Kolsewadi Police Station. On 17.9.1993 he was working as a PSO from 9 pm to 9 a.m of next day. He received the phone call from Kalyan Railway Police Station that firing had taken place at the station and the assailants had ran towards Kolsewadi area. He made entry of the said information in station diary at Exh. 41. He has further stated that at 9.05 p.m. he informed PI and ACP about the firing. ACP directed him to keep Bandobast and PSI Site and PSI Zadage were kept for bandobast along with police staff and accordingly entry at Sr.No. 42 was taken in the station diary. His evidence further shows that PSI Mohite submitted a report that they had caught accused No. 2 Nilesh Ajgaonkar at 9.35 p.m. and produced him at 9.43 p.m. He took the entry in the station diary at Sr.No. 43. He also took entry in the station diary at 10.05 p.m. about interrogation of accused No. 2 at Sr.No. 44. It is to be noted that railway police record from the police station was made available to the trial court and verified xerox copies were not on the record and the railway station diaries were returned to the police Station. This, in our considered view, is the clinching evidence, which inspires confidence in the testimonies of the said police officers, who had apprehended both the accused persons immediately after the attack on Tanaji Koli and others. The evidence of complainant Nirapure at Exh.87 provides further support to the prosecution case giving details as to how the incident took place. Therefore, the evidence on record has categorically established that Constable Bijapure, who had chased the accused persons and apprehended accused No. 1 in injured condition, who was dropped by his associates, and PSI Kamathe, who followed him and took him in custody from the spot. Similarly accused No. 2 who had ran away towards Kolsewadi main road also was caught while running by PSI Mohite and was produced before PSI Patil at Kolsewadi Police Station immediately after the incident. Accused No. 2 was found possessing revolver on his person with four empty cartridges and one live cartridge which were duly seized. In view of this factual matrix we have no doubt whatsoever that both the assailants were caught immediately after the incident by the said police personnel and there cannot be any doubt whatsoever that accused Nos. 1 and 2 were active participants in the commission of offence, which took place at Kalyan Railway Station.
9. The defence of accused No. 1 is that he was travelling by Vidharbha Express on 17.9.1993 for Nasik. He had boarded the train at V.T. Station. He had got down from the train at Kalyan Railway Station for drinking water. He received some blow due to which he was fallen down and he was feeling giddiness. He could not understand what had happened. He regained consciousness in the hospital. The defence of accused No. 2 is. that he got down from local train at Kalyan Railway Station at about 9.30 p.m. to 9.40 p.m. for going to house of his aunt. He was going to the house of his aunt by the road by the Kalyan Railway Station and 7/8 policeman prevented him and asked his name and address and took him in custody. However, in our considered view, the defence of both the accused persons is not only improbable but also disproved by the overwhelming circumstances on record. So far as accused No. 1 is concerned, there is no doubt whatsoever that he was found injured, and was being dragged by his two associates away from the place of incident but the police personnel chased them and as a result thereof his associates dropped him on the spot and ran away. Obviously accused No. 1 had sustained injures in cross firing while participating in the assault. So far as accused No. 2 is concerned the evidence on record shows that he was found with railway ticket from Mumbai to Nasik on his person, while he was apprehended. If at all he was proceeding towards place of his aunt at nearby placet the question remains as to why he was found with railway ticket to go to Nasik at the relevant time. Be as it may, the fact remains that the defence of both the accused persons is of no avail and prosecution evidence in that regard is sufficient to establish that both the accused were participants of the assault made at the said time on Tanaji Koli and other police constables.
10. The entire evidence on record shows that in all five accused persons were put up for trial. However, accused Nos. 3, 4 and 5 were acquitted for want of sufficient evidence, especially for want of their identification in the crime. Mr. Mundargi, the learned counsel for the appellants submitted that the evidence of identification parade is incomplete and therefore was not taken into consideration even by the trial court. It is true that holding of identification parade was considered but the record is conspicuously silent regarding that evidence. However? in our considered view, such lacuna would not prove to be fatal to the prosecution case especially when accused Nos. 1 and 2 were apprehended immediately after the incident and therefore, there is absolutely no doubt whatsoever that they were the authors of the crime along with their unknown associates.
11. The evidence of C.A. report has provided further corroboration to the prosecution case. It has come in the evidence that on 14.10.1993 the investigating officer sent the muddemal articles to C.A. and reports of C.A. are at Exh.97 to 101. The C.A. report Exh.100 mentions that Exh.2 which is one 5 chambered 0.38" revolver having body No. 33844 and markings transverse patent is a 5 chambered 0.38" calibre revolver in working order. The C.A. report further shows that residue of fired ammuniation nitrate was detected in the barrel washing of Exh.2 showing that the revolver was used for firing prior to its receipt in the laboratory. It is further clear from the report that the said revolver cartridges from the laboratory stock and one 0.38" revolver cartridge in Exh.14E were successfully test fired from 0.38" revolver in Exh.2. Exh.14E is a one 0.38" revolver cartridge having multiple intendation on the cap and head stamp markings KF 902380. The C.A. report further mentions that bullets in Exhs. 4, 5 and 50A are fired from 0.38" calibre cupro-jacketed revolver bullets. These revolver bullets in Exhs. 4, 5 and 50A tally among themselves and also with the bullets test fired from 0.38" revolver in Exh.2 in respect of number and width of lands and grooves direction and extent of twist of rifling and characteristic striations in the land and groove impression snowing that revolver bullets in Exhs. 4, 5 and 50A have been fired from 0.38" revolver in Exh.2. Exhibit 4 is one deformed cupro jacketed bullet for rifling marks.
Exhibit 5 is one deformed cupro jacketed bullets having rifling marks which have been attached from the scene of offence. Exh.50A is cupro jacketed bullet having rifling marks put in a phial labelled "P.M.x 5.48 Digamber Bhatkar 58 M.M. bullets". The report further mentions that the empties in Exhibit 14A, 14B, 14C and 14D are fired 0.38" revolver cartridge cases characteristic features of firing pin, impression and breach face mark on the revolver empties in Exhibit 14A, 14B, 14C tally among themselves and with those on the 0.38" revolver cartridges test fired from 0.38" revolver in Exhibit-2 showing that the revolver empties in Exh.14A, 14B and 14C have been fired from the 0.38" revolver in Exh.2. The empty Exh.14D is without premier cap and hence not suitable for comparison. Exh.14A, 14B and 14C are three 0.38" revolver empties having indentation on the cap and head stamp marking. KF 902380. Exhibit 14D is one 0.38" revolver empty without premier cap and having head stamp markings KP 90238. C.A. report further mentions that detection of metallic copper and lead in absence of blackening and power residue around peripher of uncircled shot holes on plywood Exh.37 to 46 are consistent with the passage and wipe of cupro jacketed having been fired from beyond powder range of the weapon. It further mentions that Exh.22 is a holster seized from the scene of offence.
Thus it is apparent from the C.A. report that the revolver found in possession of accused No. 2 was used for firing prior to its receipt in the laboratory. It is clearly established that the cartridges and empties found in possession of Accused No. 2 were successfully test fired from the revolver found in possession of accused No. 2. It is also apparent that the bullets attached from the scene of offence and the bullet recovered from the dead body of police Head Constable Bhatkar tallied with the bullets which are found in possession of accused No. 2. Therefore C.A. reports do provide corroboration to the entire evidence on record.
Similarly the entire medical evidence on record is sufficient to establish that the death of Tanaji Koli and Head Constable Bhatkar are homicidal death due to injuries suffered due to firing made by both the accused persons along with others with revolvers in their possession.
11. Mr. Mundargi, the learned counsel for the appellants further submitted that though the incident took place on 17.9.1993, and, even though the police witnesses examined on record were available throughout the period? their statements were not recorded either till 6.10.1993 or later on, and therefore, such inordinate delay has not been explained by the prosecution and thus should prove to be fatal to the prosecution case. No doubt it is true that the statements of witnesses were not recorded immediately after the incident. However, in our considered view, this aspect should have proved to be fatal to the prosecution case but the delay is explained by the investigating officer. Moreover) record is also sufficient to show that the investigating officer did record many of the statements with promptitude immediately after the date of incident and some of the statements were recorded in the first and second week of October) 1993. Therefore) we do not see any reason to doubt the veracity of the prosecution witnesses only because their statements were recorded belatedly especially when the evidence available on record is sufficient to bring home the guilt, notwithstanding delayed statements. It was also sought to be submitted that no independent witness was examined in the course of the trial and the case is based solely on the evidence of police personnel, whose testimonies should not be accepted as true. In our considered view, the statements of police witnesses are entitled to be dealt with in the same way and the same consideration which is attached to the statements of a member of public. No doubt before accepting such statements they should be capable to inspire confidence to rely upon in a particular case. As noted earlier, we must note here that we are satisfied that no independent witness was available to the police, taking into consideration the peculiar circumstances in which the incident had occurred. Moreover, circumstances have also shown that both the accused persons were apprehended by police by giving chase to them and thus it was not likely that any independent witness would have occasion to witness the chase and apprehension of accused along with deserted railway line between Kalyan Railway Station and Kolsewadi in the track at about 9.00 p.m. Therefore we are of the view that in this particular case the evidence of police witnesses is the only available and possible evidence which is found to be acceptable and sufficient to inspire confidence. Thus, the evidence on record cannot be discarded on the ground that ail the witnesses are police personnel.
12. Mr. Mundargi, the learned counsel for the appellants also sought to bring to our notice various discrepancies and some contradictions in the course of evidence of prosecution witnesses. However, on perusal of the entire evidence on record we are satisfied that such discrepancies and contradictions would not go to the root of the matters, nor would prove to be fatal to the prosecution case at all especially when the testimonies of witnesses were recorded about five years after the occurrence of the incident.
13. For the reasons recorded above we hold that the reasoning adopted and findings recorded by the learned trial judge are just, legal and proper and therefore, would brook no interference.
In the result the appeal stands dismissed.