Document Fragment View

Matching Fragments

18. The witness further slated that when the bomb was hurled at the guard cabin, there was smoke somewhat, but when bombs were hurled at the lock up it was smoke all round and at that time nothing was visible. The witness staled that the place below the stair case in the lock is known as guard room. The witness has stated that 2 persons must have thrown about 20 to 25 bombs. The witness was standing at the entrance of south eastern corner of the lock up building and the persons throwing the bombs were standing on the other side. About 15 bombs were thrown towards the guard room. Ashok at that time had ran inside and below the stair case. Four other constables were also below the stair case. The witness further stated that before single bomb was hurled Vija and Kisha had come to him and when these persons came to him not a single bomb was thrown towards the lock up and firing had not taken place at that time. The witness denied the suggestion that all the constables ran towards the rear passage, Ashok opened the lock of the rear passage and all ran towards the rear side of passage and were hiding there. The witness has stated that he knew a person by name Vija Kanjari @ Vija Uttekar. Vija Kanjari and Vija Uttekar are the same person. The witness categorically slated that it is false to suggest that they are different persons. The witness has stated that he knew Kisha residing in Kanjarwada and was gunda of the locality and he heard that his name was in the mavali register. The witness has admitted that he did not tell the police that Kisha is gunda of the locality or that his name is in the mavali register. He also did not state that Kisha was resident of Kanjarwada. The witness staled that he cannot assign any reason why it is not specifically mentioned in the FIR that hammer, was also used to break open the lock. The witness denied the suggestion that he ran away since bombs were hurled. He further stated that the lube lights were broken because of the bomb hurling. However, he cannot state when the lube lights were broken. The witness denied the suggestion that in the beginning itself the tube lights were broken by throwing of bombs. The witness denied that due to bombarding lights of the entire building had gone and there was darkness. The witness denied that due to smoke and darkness everything was invisible. The witness volunteered that it is true that there was smoke but because of the breeze it was dispersed. (Witness has actually stated that it is true that there was smoke but because of wind it became visible). The witness has further stated that it is not correct to suggest that there were only four persons and one of them threw bomb. The witness stated that he does not remember if he has stated before the police that one of four persons threw bomb. The witness further stated that at the time when the said four persons entered the lock up nobody was near him. At that time bomb was being hurled at him and bombarding was going on and that is why he could not close the door of the lock up. The witness stated that he had stated the same before the police but cannot assign any reason by it is not so stated. The witness further stated that he talked to Sawant havaldar and Sawant was the first person to whom he had talked. The witness did not remember whether he had told Sawant about Kisha as one of the four persons. The witness further stated that his statement was recorded on 6.3.1987 He was shown the photographs of Vijay Babulal Uttekar. He was also shown the photograph of Kishor Mahcshkar either on 5.3.1987 or 6.3.1987. The witness stated that he does not remember whether he was shown the photo of Ravi Bansi or the photo of Rajcndra Sankat. The witness stated that he does not remember whether four photos were shown to him. The witness admitted that he was shown photo of accused No. 3 Kishor. However, the witness volunteered that he already knew Kishor, The witness further stated that he was shown photo of accused No. 1 Ravi after the incident and before the parade. The witness further admitted that he was shown the photo of accused No. 2 after the incident and before the parade.

19. P.W. 12 Ashok Dinkar Chakranarayan is the other police constable on duty at the lock up alongwith P.W. 2 at the relevant time. He has stated that during night between 4.3.1987 and 5.3.1987 from 9 p.m. to 12 mid night Gharte was on duty. From 12 midnight to 3 a.m. the witness was on duty. The witness was sitting by the side of Gharte on a bench. At about 3.30 a.m. he heard sound of crackers from towards Sane Guruji Marg. One bomb was thrown at sentry booth, big sound of explosion was heard. The witness stood by the side of the stair case. At that time bombarding was going on. He raised shout calling persons on duty who were taking rest in guard room. 4/5 persons came towards lock up room. At that time while he was looking for P.C. No. 16031 Gharte the witness saw one person breaking open the lock of the lock up door. He was striking on the lock by iron rod in hand of that person, and he was trying to break open the lock. The witness had gone towards the guard room to inform guard commander, so the firing could be done. Then he went to ACP room to inform lock up incharge Sawant, when they came back towards lock up with Shri Sawant at that time the witness saw Babu Reshim suspect in the lock up in a pool of blood. One police constable Ahire was injured in the bombarding. Gharte was also injured. However, this witness was not injured. Witness further staled that one assailant was about 25 to 30 years of age with sallow complexion, medium built, with long hair. The witness stated that he knew him and his name is Ravi Bansi. The witness came to know about his name at the time of identification parade (The exact record of the sentence is "I knew him his name is Ravi Bansi'). The witness has further stated that he had seen a person who was trying to break open the lock, he was 25 to 30 yrs with sallow complexion, with long hair. At that time the witness saw him from backside. The witness was at about 3/4 feet distance from the person who was trying to break open the lock. On 8.7.1987 the witness was called for identification parade. 10 to 12 persons were standing in the room. Out of them he pointed out the offender, who had launched an attack on lock up. The witness identified him as the person who broke open the lock. The witness identified accused No. 1 Ravindra Bansi in court as the person who was trying to break open the lock. The witness admitted in the cross examination that after he heard big explosion from Sane Guruji Marg he got up and started seeing round about because he was startled. Gharte was also looking round about and that both of them saw one bomb being thrown towards the sentry room (the witness is obviously making reference to the cabin or booth outside the lock up where armed sentry is on duty). At that time there was smoke nearby. The witness stated that at that time they were standing near the bench and soon after the bombarding started towards the guard room the witness stated that one was able to some but little bit hazy. The witness stated that it is correct that not a single bomb was hurled while he was by the side of Mr. Gharte. After one or two were thrown the witness left the place where he was standing and went Toward the guard room. The place under the stair case approximately 8' x 26' which is called as guard room, (this is obviously not correct as is evident from the sketch drawn to the scale which clearly shows that the entire portion in front of the main entrance gate of lock up is 8' x 26' out of which approximately half portion is covered by the stair case. The portion underneath the stair case as per the map would be about 4' x 20') The witness stated that he went 3/4 feet away from the guard room. After one or two bombs were hurled the witness went by the side of the stair case. The witness stated that he had seen 4/5 persons who entered inside the guard room when he went by the side of stair case. The distance between the stair case and the steps at the entrance is about 2 to 3 feet. 4/5 persons had entered inside through the place, Gharte standing at the main door. According to the witness Gharte was standing on the bench. 2/3 person took round of guard room. Below the stair case 3/4 constables were sleeping. They woke up. P.C. Ahire and Takke who were below the stair case. The witness admitted that one person was in the guard room on duty and another was behind the lock up and 4/5 person were sleeping below the stair case. After the bomb was hurled all the constables woke up. They did not try to catch hold the culprits. The witness stated that because of the smoke it was no visible and therefore he could not tell whether they had sticks, iron bars, revolvers etc. He has not told the police about having seen 3/4 persons entering in the guard room. He had not told the police that he saw 4/5 persons that night. He did not tell about weapons seen in the hands of 4/5 person. When 3/4 persons returned from guard room he saw a person breaking open the lock. The witness had seen the iron rod in the hand of that person. It was about 1 to 1.5 feet in length and it was having dimension of about 1 inch. He saw the person breaking open the lock with iron rod by striking on the lock. He had told police of having seen rod in the hand of that person but he did not remember whether it was exactly iron rod or what weapon. Only one person was striking to open the lock. The witness had told police about the description of the person who was trying to open the lock. The witness has stated that between March, 1987 to July, 1987 he was on duty with Agripada police station. There is a mavali register maintained in that police station. In that register, photographs of mavali are maintained. The witness did not remember whether Ravi Bansi's name is there in the mavali register or that his photo is there, the witness stated that he docs not remember whether he was shown photograph of Ravi Bansi. He did not see Ravi doing anything else except breaking open the lock. The witness denied a suggestion that he was shown the photograph of accused Ravi Bansi before he attended the identification parade. The witness stated that at the time when the door was being broken hurling of bombs had stopped. The witness further staled that it is true that where the bombs were hurled it was not visible. The witness admitted that it is true that due to deafening sound he was startled and was not understanding what to do. The witness denied suggestion that he ran away to the rear side after the bombs were thrown.

41. Shri Ovalekar next contended that the eye witnesses' evidence is not consistent with the medical evidence. In this behalf Shri Ovalekar brought to our notice several incised wounds found on the dead body of Babu Reshim. Skull was almost broken. Doctor clearly has stated that this incised wounds and some other wounds indicate use of hard and blunt weapons. Shri Ovalekar contended that this witness P.W. 2 docs not refer to these injuries being caused by" any particular weapon by any of the accused. However, it has to be appreciated that after four assailants went inside the lock up this witness in the very situation could not have seen anything as to what happened inside the cell No. 1. If one looks at the sketch map of lock up room it clearly shows that person standing outside the lock door of the lock up may not be in a position to see what was happening in cell No. 1 which is a large room admeasuring 16' x 10'. This fact by itself in our opinion is not sufficient to come to the conclusion that the account of the witnesses is inconsistent with the medical evidence. Shri Ovalekar also referred to the injuries suffered by P.W. 2 Gharte which are punctured wounds as deposed by P.W. 8 Dr. Vaidya. These injuries in our opinion in fact corroborate presence of this witness and such injuries are obviously possible by projectiles from crude bombs. Therefore, we find it difficult to discard the evidence of this witness on the ground that it is generally improbable or his conduct is unnatural. Shri Ovalekar also submitted that evidence of P.W. 12 Ashok is also unnatural and unbelievable. He had no injury at all. He was unarmed and therefore it is doubtful whether this witness saw anything. After careful reading of the evidence of P.W. 2 and P.W. 1 2 on the contrary we are of the opinion that both these witnesses are truthful. P.W. 2 Uttam was sitting just in front of the steps. He has categorically stated that when four persons came Vijay, and Kishore asked him to hand over the key by abusing. Upon refusal they tried to snatch the key from the upper pocket of his uniform. Thereafter they retreated and then they exploded bombs in front of the wire mesh in front of cell No. 1. All the four persons fired from there. Thereafter they came inside. One of them broke open the lock, then all four went inside and fired as also threw bombs. Afterwards all of them came out shouting slogans and ran away. P.W. 1 2 Ashok does not say anything about Vijay and Kishore coming and enquiring with P.W. 2 about the key and abusing P.W. 2 we do not find the evidence is unnatural on this count because as per the evidence of P.W. 2 at 3 a.m. he took over the charge and at that time P.W. 12 Ashok went and lied on the bench which was near the stair case. Therefore when P.W. 2 was sitting it is natural that P W. 12 was not with him. Undoubtedly we are conscious that P.W. 12 in his evidence has stated that after his duty was over he was sitting on the bench by the side of P.W 12. We do not find much in this for the simple reason that the place in front of the inner gate of lock up which leads to the passage to the lock up is hardly 4x4 ft, immediately there is stair case and there is a bench. In fact all this is in the vicinity of 4 to 5 ft. After retiring P.W, 12musi be resting on the bench. That is how naturally when bomb was hurled outside wire mesh and the firing was commenced he must have come to know and he must have tried to see what was happening. Immediately next step was opening of the door by breaking open the lock by accused No. 1. In the very situation it is not reasonable to expect very exact evidence of these witnesses regarding the chronology of events. This we say because of one cardinal fact that both the witnesses were detailed on specific duty of checking the inmates and looking the front door opening in the passage of the lock up every three hours. Shri Ovalekar also led emphasis on the evidence of P.W. 2 in para 16 where P.W. 2 has stated that at the time when four persons entered inside the lock up nobody was near him. At that time bomb was being thrown at him and that is how he could not close the door of the lock up. Shri Ovalekar therefore submitted that the evidence of P.W. 2 cancels the evidence of P.W. 12 and vise versa. It is not reliable because the P.W. 2 professed to have seen accused No. 1 breaking open the lock. It is not possible to accept this submission. In the very nature of things P.W 2 or for that matter P.W. 12 must have been so much overawed by what was happening that when the witness says that nobody was near him, it must be understood as he has not seen anybody. The witness was watching what the accused were doing In fact not only P.W. 12 but other six guards were within 6 to 8 ft under the stair case. Not much could be made of this so as to discard the evidence of these two witnesses totally.

1. Vijya @ Vijay Utkar
2. Keshya @ Kishor, Marraiyya, Lakshaand other 9 -10 persons.

Shri Ovalekar therefore submitted that this identification by P.W. 2 of accused No. 1, 2 and 3 has to be completely discarded. In this regard it must be appreciated that after this incident which must have overwhelmed every one concerned, absence of all details in FIR does not by itself make that prosecution case doubtful. It is relevant to notice that in the statement which is treated as first information report P.W. 2 has clearly stated that Vijay and Kishor whom he knew came near him. The FIR also states that lock was broken open and all entered inside. The fact that the witness had not mentioned that it is the accused No. 1 who broke open the lock in our opinion in the circumstances of the case is not serious omission. As a matter of fact P.W. 12 very categorically and clearly stated the same in his evidence. Not giving of details as to how P.W. 12 knew accused in FIR is also not fatal or is not of such importance which should persuade us to doubt the testimony of P.W. 2. In fact we find FIR has given many details and one witness says that he knew a particular accused in the situation the witness may give details or may not give details but that by itself cannot be sufficient to discard the testimony of this witness to the effect that he knew Vijay and Kishor. We are also not impressed by the submission of Shri Ovalekar that the S.E.M says that P.W. 2 told him that 8 to 10 unknown persons came towards the lock up. In our opinion in fact this is clearly hearsay and cannot be utilised for doubting the testimony of P.W. 2 when he was not asked or it was not suggested to P.W. 2 that he has told the SEM a different story. The emphasis led by Shri Ovalekar on the eye witnesses referring to accused No. 3 as Keshya and not Kisha is also not so important as to discard the testimony of this witness. People may use quite different short forms while calling persons by their names. Though normally Shri Ovaleakar is right that short version "Keshya" would indicate the name "Keshav" whereas "Kishore" would normally be called "Kisha". However, there cannot be such absolute rule. What is important is to find out whether P.W. 2 in fact knew accused No. 3 or not. It is relevant in this behalf to refer to suggestion made to P.W. 25 P.I. Tikam wherein it was clearly suggested that Kishore Maheshkar was arrested on 21.10.1985 in a case registered at Agripada Police Station and further Kishore Maheshkar was also arrested alongwith others on 6.1.1987 and were in custody till 9.1.1987. In his statement accused No. 3 in an answer to question 8 regarding identification of accused No. 3 by P.W. 2 accused No. 3 has stated that in 1985-86 he was arrested in criminal case by Agripada Police Station and for 8 to 10 days he was in the lock up with Ravi Bansi Gohar and Vinod Bhika Maria and their photos were taken by police therefore P.W. 2 identified him. The evidence on record coupled with this answer clearly shows that accused No. 1 as also accused No. 3 were the inmates of the lock up at Satrasta on some occasions. P.W. 2 has also described Vija and Kisha as known gundas in the locality. On the basis of the material on record there is absolutely no reason to doubt the fact that P.W. 2 must be knowing accused No. 3. Similiar is the case with P.W. 12 when he identifies accused No. 1 Ravi. Shri Ovalekar submitted that even for this witness it must have been difficult to identify anyone inasmuch there was constant smoke of explosion. Shri Ovalekar further emphasised the fact that this witness has failed to identify accused Nos. 2 and 3 in the identification parade and therefore the identification of accused No. 1 by this witness is extremely hazardous, to be relied upon to conclude the involvement of accused No. 1. P W. 12 Ashok in his evidence has stated that at 3 a.m. he was on duty. He was sitting by the side of Gharle on bench. At 3.30 a.m. he held sound of crackers. One bomb was thrown at the sentry booth, big sound of explosion was heard and he stood by the side of the stair case. Four-five persons had come towards the lock up room at that time while he was looking for P.W. 2 he saw one person breaking open the lock of the lock up door. He was striking on the lock. There was iron rod in the hands of the person and he was trying to break open the lock. The witness had gone towards the guard room to inform the guard commander so the firing could be done. Commander Takke had opened firing accordingly. In his evidence he states that one assailant was about 25 to 30 years of age with sallow complexion, medium built with long hair. Then he says "I know him his name is Ravi Bansi". He came to know about his name at the time of identification parade. Undoubtedly the evidence is not properly recorded but we will have to make sense of this sentence and in view of the fact that the witness has stated that he came to know about his name at the time of identification parade. Earlier sentence must be read as "I knew him. His name is Ravi Bansi". In para 6 the witness has stated that he had seen person who was trying to break open the lock. He was 25 to 30 years of age with sallow complexion medium built, with long hair. At that time the witness saw him from backside. Shri Ovalekar also emphasised that this witness had seen him from backside, therefore he could not be in a position to identify him. Firstly P.W. 12 knew accused No. 1. Secondly distance between the side of the stair case and the iron gate lock of which was broken by this accused is hardly 4 to 5 feet as is evident from the map. It is not as if accused No. 1 must have been constantly showing his back to the witness. In fact the accused must be moving. In these circumstance and when this witness has clearly described the accused No. 1 and more importantly when this witness already knew accused No. 1, we do not find anything to doubt the identification of accused No. 1 by P.W. 12. In fact evidence of P.W. 2 corroborates P.W. 12 so far the identification of accused No. 1 is concerned. In this behalf we have already referred to the evidence of P.I. Tikam. Accused No. 1 also in his examination in answer to question No. 27 regarding identification by P.W. 12 slates that accused No. 1 was arrested by Agripada police station in the year 1985 and he was in lock up for about one week and photographs were also taken by the police. Therefore P.W. 12 identified him as this accused also appears to have been inmate of Satrasta lock up for sometime and we see nothing unnatural if P.W. 12 must have known this accused No. 1.