D

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Registered on : 17-09-2008 Decided on : 06-02-2013 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 The State of Maharashtra Through Police Station Officer, Police Station Lakadganj, Nagpur. ... Versus 1] Rakesh @ Pappu S/o Rameshchandra Kushwaha, Aged about : 30 years R/o in rented house of Kamlaprasad Dubey, Mahendibagh, Nagpur. Sunil Birchand Sharma, Aged about : 34 years, R/o House No.1132, Ashok Chowk, Ashoknagar, Gond Mohalla, Chamarnala Road, Nagpur. Bachha @ Nanbabu S/o Bachanulal Mourya, Aged about : 30 Years R/o Tah.Karvi, Dist. Chitrukut (U.P.). Shambhu Sitaram Raikwad, Aged about : 33 years, R/o Village Karvi, Tah.Karvi, Dist.Chitrakut. of 2008

Complainant

2]

3]

4]

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. Amit Hiralal Verma, Aged about : 28 years, R/o Behind P.W.D.,Office, Kalyan Sagar, Mahoba, Dist., Mahoba. Yogendra Rajkumar Yadao, Aged about : 29 years, R/o S.D.M.Colony, Tahsil : Karabi, District : Chitrakut. Chunubadh @ Pradhan Baburam Kumhar, Aged about : 47 years R/o Gaon Makrao (Nathkuva Basti). Taluka Moudhah Dist. Hamirpur (U. P.) Omprakash Rajaram Gupta, Aged about : 26 years, R/o Sujata Nagar Mhada Quarter No.112, P.S.Panchpaoli, Nagpur. Gourishankar Shamsunder Sahu, Aged about : 44 years, R/o Kolba Swami Nagar, Shahu Mohalla, Behind Shiv Temple, Binaki Mangalwari, Nagpur. ...

6]

7]

8]

9]

10]

Accused

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Registered on : Decided on : Duration : 2] Sessions Case No. 84 of 2009

16-02-2009 06-02-2013 3Y 1M 21D

The State of Maharashtra Through Police Station Officer, Police Station Lakadganj, Nagpur. ... Versus

Complainant

Chunubadh @ Pradhan Baburam Kumhar, Aged about : 47 years, R/o Gaon Makrao (Nathkuva Basti). Tal.Moudhah Dist. Hamirpur (U. P.) ... Accused OFFENCE PUNISHABLE UNDER SECTIONS 120-B, 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. ----------------------------------------------------------------------------------------

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

JUDGMENT ( Delivered on this 6th day of February, 2013 ) Accused Nos. 1 to 8 are charged for the

commission of offence punishable under Sections 120-B 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 08-05-2008 is as under : That on 08-05-2008 at about 5-30 P. M. to 6-00 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 conspiracy. 3] The wheel of the investigation rotated on the grievous injury on the leg of bullet, by hatching criminal Shailesh Lakhotia, by means of

basis of information received by P. W. 17 Kaushik Abaji Gosavi,

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

then Police Inspector of police station Lakadganj, Nagpur that on 08-05-2008 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 08-05-2008 lodged by Ritesh Kothari in Lakadganj Police Station vide Exh-93, first information report Exh-94 came to be registered for the offence punishable under Sections 394, 396, 397, 302, 201, 120-b, 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 Exh-121 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

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 Exh-124 from the house of Sandhya Mohta . He also seized blood stained notes vide seizure panchanama Exh-124. 5] Exh-185and In Chandak Hospital, P. W. 17 Gosavi prepared on the body of Suresh Lakhotia vide Sushil inquest panchanma on the body of

inquest panchanama

Lakhotia vide Exh-189 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 Exh-201. He also obtained certificate from Dr. Chandak relating to receipt of Bullet recovered from body of injured Shailesh vide Exh-200 . b] P. W. 19 Mahesh Sawai Investigating Officer, by Shyamsunder Lakhotia father of

further seized bags containing cash of Rs. 14,00,00 /- and Rs. 19,90,000/- produced deceased, in police station vide seizure panchanama Exh-125.

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 16-05-2008 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 Exh-280. 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 28-05-2008

involvement of accused no. 2 Sunil Sharma was found in the crime. He was arrested from Ashok Nagar, Nagpur vide arrest panchanama Exh-282 . During personal search of accused no. 2 Sunil Sharma, Investigating Officer seized his mobile Phone of Vodafone Company having IME No. 357571011830006 vide

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

seizure memo Exh-283.

Investigating Officer also recorded

voluntary disclosure statement of accused no. 2 Sunil Sharma on 28-05-2008 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 Investigating Officer seized 3 country made revolver, 3 One Hero honda passion cartridges vide seizure panchanama Exh-285 . On 30-05-2008, motorcycle bearing No. MH-31-AV-4081 parked in Varanda of his house and 1 mobile phone hidden in the tool box of said motorcycle, vide Exh-287. During further investigation, a cap found on the spot of incidence was shown to Omprakash Gupta and his wife Harsha Gupta on 30-05-2008, who identified the same as that of accused no. 1 Rakesh Khushwaha. Thus, he prepared identification panchanama of article vide Exh-288 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 28-05-2008, 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 situated near IIM 'T' Point near pan shop Station within the jurisdiction of Police

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Madiyav, District : Lucknow ( Uttar Pradesh ).

They arrested

above accused persons on 28-05-2008 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 signatures of Exh-225 prepared by Girijesh Tiwari and 6 accused persons and thumb impression of were obtained . The details of seized

accused Chunbadh

muddemal from respective accused are as under : P. W. Madiyav 14 Devendra Dilawarsingh, Police Sub station

Inspector, deposited muddemal seized at police vide Exh-227. 8] Thereafter, arrested accused 30-08-2005.

on taking necessary station diary entry at Exh-50,

persons were

brought to Nagpur on

After taking necessary

station diary entry at serial no. 50 in police station Lakadganj, vide Exh-289 by Police Sub Inspector Mudgal, on 30-05-2008, arrest forms of accused nos. 1, and 3 to 8 came to prepared in Lakadganj Police Station vide Exhs-290 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

10

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

accused at the time of their arrest at Madiyav. Mr. Sawai. P.W. 19

Police Sub

Inspector Mudgal, produced it before P. W. 19 Police Inspector 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 01-06-2008, one Pistol kept behind cluster of bricks on the terrace of house of father-in-law of accused no. 1 Rakesh Khushwaha namely Rajaram Gupta, situated at Sutaja Nagar, Nagpur, bearing seizure panchanama Exh-298. letters " Made in England ", having empty magazine, were also seized under During preparation of Exh-298, 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 7-5-2008 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 Exh-299, bearing signature of accused no.

11

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

6 Amit Varma . b] On 01-06-2008 itself in pursuance to voluntary no. 1 Rakesh @ Pappu

disclosure statement of accused

Khushwaha vide Exh-300 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 father-in-law Rajaram Gupta vide seizure panchanama Exh-301. c] On 01-06-2008, blood sample of accused no. 2 and seized vide

was collected and seized. On 02-06-2008, blood samples and hair samples of accused were collected Exhs-134 to 139. d] On 03-06-2008, in pursuance to the voluntary Nanbabu @ Baccha

disclosure statement of accused no. 3

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 Exh-146. e] On 03-06-2008, 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 Exh-141, one motorcycle Kinetic Challenger

12

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

bearing No. MH-31-AR-9557 was recovered from rented house of accused no. 1 which was situated at Merchandise, Nagpur vide seizure panchanama Exh-142. The said vehicle No. MH-31AR-9557 was inspected and blood stains found on its handle and seat cover were collected and seized under seizure panchanama Exh-142. f] 03-06-2008, Exh-140. g] On 05-06-2008, in pursuance to voluntary made by accused no. 2 Sunil During house search of accused no. 1, on one chit Exh-157 having number of 7 mobile

phones was found which was seized vide seizure panchanama

disclosure statement Ex-148

Sharma , a motorbike - Baja bursar bearing No. MH-31-BT-6150 kept in Billiard Pool House situated at Ashok Chowk, Nagpur was seized vide seizure panchanama Exh-149. h] On same day i. e. on 05-06-2008, accused no. 9

Omprakash Gupta produced a chit ( Exh- 158 ) having number of one vehicle i. e. MH-31-CV-2574 and one jeans pant of accused no. 7. The said jeans pant and chit were seized under seizure panchanama Exh-147. i] 05-06-2008 lender given Accused produced by him no. in 10 police Cruikshank station Shahu, on one

Lakadganj,

motorcycle bearing No. MH-31-BY-3725 a Hero Honda Sp to accused no. 2 in police station

13

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Lakadganj which Exh-156. j] accused

was seized

vide seizure panchanama

On 05-06-2008, specimen of hand writing of no. 1 was obtained vide Exh-155 and it was seized

under panchanama Exh - 154 . k] On 05-06-2008 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 Exh-302. On the same day, one mobile phone from Gayatri wife of number 9371527820 seizure panchanama Exh-303. l] On 06-06-2008 in pursuance to voluntary of accused no. 7 Yogendra Yadeo vide During inquiry, it revealed that said Rakesh having of Classic Company was seized vide

disclosure statement locality Mominpura.

Exh-150, one unattended motorcycle was seized from Muslim 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. MH-31-CB-2574 and found blood stains from its handle and seat cover. Blood was scraped. By issuing requisition letter Exh-304 to in-charge police station Tahsil for

14

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

seeking custody, said vehicle panchanama Exh-151. m] On 07-06-2008,

was seized under seizure

blood samples of injured

Shailesh Lakhotia was collected from police constable Shri Kunte vide seizure panchanama Exh-305. n] A inventory of various mobile numbers saved in

mobile book of mobile phone seized from accused were prepared in presence of panchas vide Exh-152 and its print out running in 23 pages were obtained. On inquiry, it revealed that Exh-306 pertains to Ankit Shukla accused no. 5. Exh-307 pertain to accused no. 4 Shambhu Raikwad, Exh-308 pertains to Chunbandh, Exh-309 pertains to accused no. 3 Baccha @ Nanbabu, Exh-310 pertain to father-in-law of accused no. 1 named Rakesh Gupta, Exh-311 pertains to father in law of accused no. 1 named Rajaram Gupta. Exh-312 pertains to Yogendra Yadeo accused no. 7. Exh-313 pertains to SIM Card No. 9935729761, Exh-314 pertains to accused no. 6 Amit Varma, Exh-315 pertains to SIM Card No. 9370549568, Exh-316 pertains to accused no. 1 Rakesh Khushwaha. o] 9326893805. vide Exh-316 . During investigation, was it revealed that accused possessing mobile No.

no. 1 Rakesh Khushawaha

Inventory of mobile numbers saved in mobile

book of it was prepared in hand writing by official of Company

15

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

p]

On 07-07-2008, Investigating Officer forwarded

requisition letter to B. S. N. L. vide Exh-317, for obtaining CDRs of mobile phones ( Mottorola ) of Rajaram Gupta seized vide seizure panchanama Exh-302. He received reply vide Exh-318 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 Exh-153. q] photographs During investigation he obtained post mortem obtained by preparing panchanama

report of deceased from Mayo Hospital,

and also

snapped at the time of post mortem of Suresh

Lakhotia and that of Sunil Lakhotia vide Exh-187 and Exh-190 respectively along with 13 photos ( articles 1 to 13) . MLC report of injured Shailesh Lakhotia was obtained vide Exh-196. 10] On 12-05-2008, he sent Viscera removed from Sushil Lakhotia to Forensic Science through Police Constable

bodies of Suresh and

Laboratory, Nagpur for analysis

Deviprasad, B. No. 1357 along with requisition letter for Sushil Lakhotia vide Exh-319 and for Suresh Lakhotia vide Exh-321. The invoice challans vide Exhs-320 and 322 were also obtained from police constable Deviprasad .

16

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

11]

On the same day i. e. on 12-05-2008, on written

suggestion forwarded vide Exh-323 from C. A. office, Nagpur, Investigating Officer deposited 68 muddemal articles to Forensic Science Laboratory, Mumbai with a query report dated 12-06-2008 through Police Sub Inspector Mudgal vide vide Exh-324 along with necessary C. A. from Exh-206. After sorting out the necessary articles for Ballistic examination, other articles were sent to Biological Department of Forensic Science Laboratory, Mumbai. On 25-06-2008, Police Inspector Shri Gosavi order

forwarded query report to Forensic Science Laboratory Mumbai vide Exh-260 and DNA report was obtained from Forensic Science Laboratory , Mumbai vide Exh-202 and report of Ballistic Expert was obtained vide Exh-207. 12] On 15-05-2008, 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 04-06-2008 vide Exh-326, 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

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 14-06-2008 Exh-328 to hand writing expert and analysis report was obtained vide Exh-329 which revealed that the red encircled writings marked Exhs-Q-1 ( except overwriting ) is in the handwriting of the person who wrote the writings marked Exhs S-1 to S-6 and N-1. b] By issuing direction vide Exh-380, 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 Exh-331, 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 Exhs-332, 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 Art-14 .

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 Exh-241 for conduction of identification parade of the accused persons . d] Exh- 242 After completing the formalities of issuance of letter for arrangement of dummys' for identification of

letters to Superintendent, Central Jail, Nagpur, vide

accused and calling of witnesses for identification parade on 22-06-2008, 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 Exh-253. After holding identification parade of accused, statements of witnesses came to be recorded by Shri Mahesh Sawai. Investigating Officer

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 09-08-2008 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 Exh-347 showing nexus of accused no. 10 with crime. Investigating Officer sent letter to D. C. P. on obtaining permission vide Exh-349 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] lodged by On the basis of complaint dated 08-05-2008,

Ritesh Kothari in Lakadganj Police Station vide

Exh-93 , first information report Exh-94 came to be registered for the offence punishable under Sections 394, 396, 397, 302, 201, 120-b, 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 charge-sheet 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

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 charge-sheet came to be filed against accused no. 8 vide S. T. No. 84 of 2009 . Both these cases, vide order below Exh- 1, dated 03-08-2009 were clubbed together for trial. 18] Since the offence punishable under Sections

394, 396, 397, 302, 201, 120-b, 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 charge-sheet 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 Exh-60 on 27-08-2009 against accused and additional charge under Section 3/25 of Arms Act was framed vide Exh-60-A. 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 Exh-185 Inquest Panchanama dated

Criminal Procedure Code, the defence has admitted genuineness of the documents viz. 08-05-2008, Exh-186 Police Report to be forwarded to the Civil surgeon with Dead body of Suresh Lakhotia, sent for postmortem examination, Exh-187, Postmortem Report of

21

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Suresh Lakhotia, Exh-188 Police Report to be forwarded to the Civil surgeon with Dead body of Sushil Lakhotia, Exh-189 Inquest Panchanama prepared on Sushil Lakhotia, 190 Postmortem Report of Sushil Lakhotia, Exh-279 Seizure panchanama dated 09-05-2008 of bullets recovered from body of Sushil Lakhotia and Suresh Lakhotia . 21] evidence. 22] The Statement of accused under Section To prove the guilt prosecution based its

claim on oral testimony of 23 witnesses and documentary

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] Pleader ofr State Heard and Learned District Government

learned Counsels Adv. Tiwari, I have also perused

Adv. Gadling, Adv. Bhangade, Adv. Jaltare, Adv. Adv. Rizwy, Adv. Gaikwad, for accused persons. persons. 25] Considering the submissions made before written notes of arguments submitted by the State and accused

me and on perusal of the evidence on record, following points arose for my determination.

22

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

S.N. 1]

Points Does prosecution prove that on 08-05-2008 at about 5-00 to 5-30 P. M. at Gayatrilok Apartment, Ambedkar Chowk, Nagpur, in the office of Lakhotia Brothers, the Accused Nos. 1 to 8 committed dacoity as alleged ? 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 ? 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 ? Does prosecution prove that accused nos. 1 to 8 on or about 07-05-2008 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 ?

Findings

Yes, offence is proved against accused nos. 1 to 7 only.

2]

Yes, Offence is proved against accused nos. 1 to 7 only.

3]

Yes, Offence is proved against accused nos. 1 to 7 only.

4]

Yes, Offence is proved against accused nos. 1 to 7 only.

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 ? 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 ? 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 ? What Order ?

No

6]

Yes, offence is proved against accused no. 9 only.

7]

Yes, offence is proved against accused nos. 2 and 6 only. As per final order

8]

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 120-B 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

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] as follows : That on 08-05-2008, at about 5-30 P. M. five persons of age group 25 to 30 entered with fire arms and deadly weapons in the office of Suresh Lakhotia, Shailesh At the Lakhotia and Sushil Lakhotia situated at Flat No. 205, Gayatrilok Apartment, Ambedkar Chowk, Nagpur. 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 . relevant times, Lakhotia Brothers were carrying on business of The prosecution's case can be summarized

25

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

28]

Learned District Government Pleader Shri murder of

Qureshi for the State submitted that gruesome broad day light, in Avenue, Nagpur crowded

Lakhotia Brothers in a preplanned dacoity committed in a commercial area of Central 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 mis-adventures 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] argued that Learned D. G. P. Shri Qureshi further

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

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 conspiring with each other. e] It is clear from oral and documentary as evidence on record in the nature of eye witness account accused nos. 1 to 10

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. doubting said eye witnesses. g] persons It is submitted that the prosecution has There is absolutely no room

established through Ballistic Expert's Report that the accused had killed Suresh and Sushil Lakhotia by country made hand guns which were carrying by them. Prosecution has

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. spot. upon Injuries on his person Being injured eye witness, guarantee of his there is absolutely no scope of doubting his presence on the itself are presence. To support the contention, learned D. G. P., relied 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] during Learned D. G. P. further submitted that of these witnesses nothing Except minor

cross examination

substantiates could be brought on record.

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."

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 Minor discrepancies and He further

reasonable doubt cast upon the prosecution story on the basis of evidence available on record. contradictions would not cast any doubt on the story of

prosecution, much less, any reasonable doubt. doubt, testimonies of

submitted that on the basis of some unreasonable and remote 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 under : evidence of prosecution can be classified as

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] a] b] c] 3] a] b] c] d] 4] a] b] 5]

Eye witness - not injured :

P. W. 1 Ritesh Kothari (Exh - 92) P. W. 2 Gopal Sharma (Exh - 99) P. W. 3 Devesh Paliwal ( Exh - 110)
Panch witnesses : -

P. W. 5 Radheshyam Sarda (Exh - 120) P. W. 6 Chandrashekhar Kapse (Ex - 130) P. W. 7 Narayan Nanwatkar (Exh - 162) P. W. 8 Ravindra Bargad (Exh - 171)
Medical Experts :

P. W. 9 Medical Officer Shri Shrigiriwar (Exh - 184) P. W. 10 Dr. Rajendra Chandak (Exh - 195)
Other witnesses :

P. W. 11 Shilpa Nikose (Exh - 203) 6]

Ballistic Expert :

P. W. 12 Gautam Gadge (Exh - 205)

30

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

7] a] b] c] d] 8] a] b] c] d] 9]

Nodal Officers :

P. W. 13 Arunkumar Mishra vide Exh - 214 P. W. 15 Kaushalendra Tiwari (Exh - 228) P. W. 18 Rajiv Sharma vide (Exh - 269) P. W. 20 Sachin Shinde vide (Exh - 342)
Investigating Officer :

P. W. 14 Devesh Dilawar Singh (Exh - 224) P. W. 17 Kaushik Gosavi (Exh-255) P. W. 19 Mahesh Sawai. (Exh 278) P. W. 21 Wasudeo Wandhare (Exh - 346)
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

31

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

has admitted

Postmortem Report of Suresh Lakhotia vide

Exh-187 and Postmortem Report of Sushil Lakhotia vide Exh-190 as well as Inquest Panchanamas of Suresh Lakhotia vide Exh-185 and Sushil Lakhotia vide Exh-189. 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 Exhs-187 and 190.
Regarding homicidal death of Suresh Lakhotia :

32]

P. W. 9. Dr. Shrigiriwar in his substantive ( Exh-185 ) and 16

evidence deposed that on 09-05-2008 he received requisition letter ( Art-A ), inquest panchanama columns form ( Exh-186 ), 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 Exh-187 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 .

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 mid-line, 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. 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. b]

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 : fractured ends inverted, a] 4th Rib fractured, 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] wound on upper lobe d] Right Lung : 200 Gms Through and Through firearm directing backwards medially and downwards . 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

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 He opined the injuries cause were anteof death mortem and in his opinion, they were sufficient to cause death in natural circumstances. 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 09-05-2008. He testified on receipt of 16 columns form ( Exh-188 ) and inquest panchanama Postmortem. By confirming its ( Exh-189 ) he conducted Lakhotia vide Exh-190. 38] 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

contents, Medical Officer proved postmortem report of Sushil Medical Officer found following injuries on

the body of Sushil Lakhotia as mentioned in column no. 17 of P.

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 1/3 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.
rd

[c] downward.

Direction - From right to left leftward anteriorly, and

[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.

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

36

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

20] Contused abrasion present over present over left fore-arm 18 cm from elbow, dorsal aspect horizontal 2.5 cm X 1 cm reddish brown 21] 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 fresh.

38]

was opined as he found

On

internal

examination,

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 intercostal 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.

37

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

[e] 3] a]

Left lung : Pale 440 gms, Abdomen : Walls : Intact Peritoneum : Pale, Cavity : No free fluid. Buccal cavity teeth tongue and pharynx ( having reference to injury no. 1 column no. 17)

Penetrating bullet injury present on right wall at the level of hilium of right lung, food material oozing out of it.

Esophagus

Bullet recovered . ( having reference to injury no. 2 in column no. 17 ). 39] According to Medical Officer P. w. 9, all injuries were ante-mortem 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 and Sushil Lakhotia was

death of

Suresh Lakhotia

homicidal one. Since defence has admitted post mortem reports Exhs -187 and 190, inquest panchanamas Exhs-185 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 Exh-196.

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 08-05-2008. 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 a]
b] c]

Exh-196 on 07-06-2008. He made observations that Penetrating wound over right knee with gun powder around it Abrasion over left thigh admeasuring 3 X 1 Cms horizontally placed with blister around it; 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 X-rays ( Exhs-198 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 obtained necessary endorsement on his drawing its panchanama vide Exh-201 bearing his signature. He also proved to have letter head vide Exh-200. 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

39

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

record discharge card of Shailesh at Exh-197. 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 re-examination

testified that on 08-05-2008 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 Exh-202 itself statement . 47] Learned Counsels for the accused to he endorsed that Patient is fit to give

discredit testimony of P. W. 10 Dr. Chandak specific marks of identity and further

referred to his

cross examination and argued that X-rays without having any discharge card are coming before the Court for the first time. Admittedly, X-rays have been snapped by technician, who was not examined. Bedhead ticket of the patient on which summary report Exhs - 196 and 197 are allegedly based are not produced before the Court.

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 handing over the metal lid recovered to the police, the testimony of injury of the injured and further aspect that Exh-196 is silent about removal and from the body of Shailesh

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 re-examination P. W. 10 changed his version and added that police sought his opinion about fitness of patient Shailesh P. W. 4 on 08-05-2008 and he endorsed vide Exh-202 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] Lakhotia discrepancies I am of the view that, since Shailesh substantively before the Court, the the testimony of P. W. 10 Dr. appearing in

is deposing

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 Exh197 Medical Certificate showing other occipital profusely with contused lacerated wound surrounding contusion and three in number bone deep admeasuring 3 Cm X 1 Cm each substantive evidence of Shailesh, the prosecution has proved that P. W. 4 Shailesh Lakhotia was injured in the said assault and was admitted. 49] successfully Conclusively, I find, from the document of proved homicidal death of Sushil Lakhotia and and on the basis of Medical Certificate

post mortem reports Exhs - 187 and 190, the prosecution has Suresh Lakhotia

Exh-196 and discharge card issued by Dr. Chandak vide Exh197 and substantive evidence of injured witness P. W. 4 Shailsh Lakhotia that Shailesh Lakhotia sustained injuries in the assault . Ballistic Expert's Report Exh-207 : 50] prove its case. 51] Ghadage Ballistic Expert contents of P. W. 12 Shri Gautam report Exh-207 deposed Ballistic Expert Report Exh-207 is the

prime document on the basis of which prosecution sought to

proved the

about his qualification and testified about receipt of seized articles in Crime No. 170 of 2008 in sealed condition brought by

42

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Police Sub Inspector Mudgal on 12-06-2008.

He testified that

he found all the parcels in sealed condition as described in the letter received vide Exh-206 . 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 Exh-BE. 2] Exh-2 : contains one single barrel breech loading country made hand gun put in an envelop, marked Exh-BF. 3] Exh-3 : contains one single barrel breech loading country made hand gun put in an envelop, marked Exh-BG. 4] Exh-4 : contains one Country made pistol with magazine having crude marking Made In England, put in envelope marked Exh BH. 5] Exh-5 : 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 Exh-D. 7] Exh-7 : One KF 8 MM rifle empty having indentation on the cap put in a plastic container marked Exh-I. 8] Exh - 8 : One KF 8 MM rifle empty having indentation on the cap put in a plastic container marked as Exh-J. 9] Exh - 9 : One KF 8 MM rifle empty having indentation on the cap put in a plastic container marked Exh-K.

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 Exh-P. 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 Exh-R. 17] Exh - 17 : One deformed softnose copper jacketed bullet having brushing marks put in a plastic container labeled, marked Exh-Y.

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] 23-9-2008 He testified before the Court that on he took physical measurement of He also articles took the barrel

mentioned at Exh Nos. 1 to 17.

44

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

washing of cartridges

the firearms and took measurements of live in length as well as width and also took the

measurements of Empties . b] According to him, in washing of empties he he took noting of found Nitrite in the same. During analysis he also observed brushing marks on bullets. Accordingly, c] Ballistic analysis and recorded his observations as under : 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] Selected these one two He confirmed before Court that randomly 8 MM rifle cartridges from Exhibit 5 were

successfully test fired through the handgun Exhibit 1. Of 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.

45

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

g] Exhibit 3.

Two 8 mm rifle cartridges

available in

laboratory were successfully test fired through the handgun 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 Exhibit 4. 54] characteristic He observed that empties in Exhibit 7,8,9, 8 mm rifle cartridge cases. The features of the firing pin impression observed 10 and 11 are the fired test fired through the pistol

under comparison microscope tally with those on the cartridges test fired from the handguns Exhibit 1, 2 & 3. 55] firing
Exhibit No 7 Fired from the country made handgun Exh-2. -

On the basis of characteristic features of impression

I these empties are grouped

pin

as follows : II III

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 copper jacketed bullet in Exhibit 6,

deformed soft nose

the soft nose copper 8 mm

jacketed bullets in Exhibit 13, Exhibit 16 and deformed soft nose copper jacketed bullet in Exhibit 17 are the fired 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 hand56] On the basis of striation and brushing guns Exhibit 1 , 2 and 3. marks, these bullets can be grouped as follows.
Exhibit No 6 Group I Fired from country made handgun Exh-1 Group II -

Group III -

13

Fired from the country handgun Exhibit 2.

16 & 17

Fired from the Country made handgun Exhibit 3.

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 shot-hole on full bush shirt Exhibit 19-A 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 Exh-207, bearing his signature and forwarded the same to concerned police station.

48

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

d]

As such, he confirms 58] P. W. 12

contents of Exh-207 in his Ballistic Expert Shri Ghadage

substantive evidence before the Court and proved it. further testified regarding clothes sent for analysis that, he examined Exhs-18-A, 19-A and 20-A and found detection of metallic lead and copper blackening in presence of and lead smoke and absence of and powder residues around the

periphery of encircled shothole on half bush shirt Exhibit 18-A 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 Exh-207 on the basis of his observations written down in written notes disclosing various vide Exh-209 snapped tests / examinations conducted by him .

Ballistic Expert has also testified that he has

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.

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 Exhs-6,13, 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 collected microscope tallied with those on test fired bullets

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

50

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

shots on victim . 61] no. 6 further Learned Counsel Shri Gaikwad for accused vehemently argued that Exh-4 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] submitted that Learned Counsel for accused no. 6 further Exh-4 a country made pistol is admittedly

capable of chambering and firing 7.65 mm. Pistol cartridges but except Exh-12, no ammunition or pistol empty of KF 7.65 mm was sent for analysis to Ballistic Expert. which do not had b] primary cap. Learned Admittedly, Exh-12 comparison of As such,

Exh-12 empty and Exh-4 a gun is incorrect and unscientific. Counsel further raised another point that opinion of the Ballistic Expert about use of Exh-4, 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 Exh-4 is incorrect, therefore, he submitted, no reliance can be placed on Exh-207 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 Exh-4 was used in the crime. Though, it has not been

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 Exh-207 and counter

arguments, I submit that Ballistic Expert had admitted that he has received Exh-12, one KF 7.65 mm pistol empty without primary cap put in a plastic container marked Exh-N, and also admitted that he had also not received any bullet with Exh-12 to compare it with guns. Ballistic Expert also admitted that the empty Exh-12 is a fired primary cap and impression. 7.65 mm pistol cartridges without for comparison of firing pin he has stated that unsuitable

Though, Ballistic Expert

successfully test fired two 7.65 pistol cartridges available in laboratory through pistol Exh-4 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 Exh-4 was used in crime in question. Notably Article Country made handgun Exh-4 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. Exh-4 is concluded as Gun used .

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 Exh-4 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 video-graphing because of lack of facility or not submitting entries from registers regarding analysis no way discredit analysis of Ballistic Expert presented vide Exh-207 on record. 66] It needs to be mentioned that photographs though were in possession of Ballistic snapped for analysis

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 Exh-207 substantiating the claim of the prosecution, withstood with the test of cross examination. I submit that P. W. 12 has proved

53

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Ballistic Report Exh-207. 68] proved that i]

Observations and analysis presented the basis of

vide Exh-207 being scientific, it is reliable piece of evidence . Conclusively I find , on Exh-207, the Report of Ballistic Expert, the prosecution has
Exh-7 was fired from country made hand gun Exh-2 .

ii] Exh-8 and Exh-9 were fired from country made hand gun Exh-3. iii] Exh-10 and Exh-11 are fired from country made hand gun Exh-1. iv] Exh-6 was fired from country made hand gun Exh-1. v] Exh-13 was fired from country made hand gun Exh-2 ; and vi] Exh16 and Exh-17 are fired from country made hand gun Ex-3. Traces of crime have been collected by Investigating machinery from three sources :

i] ii] iii] i]

Incriminating articles seized from the Spot. Bullets recovered from dead bodies of Suresh and Sushil and Country made hand guns Exhs 1-, 2, and 3 seized from the accused.
Incriminating articles seized from the Spot of incident vide Spot Panchanama ( Exh-121 ) :

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 i. e. office of Lakhotia testified that he inspected the spot

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 Ex-121 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 panchanama Exh-121. 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 5-00 to 5-30 P.M. but, P. W. 5 Radheshyam Sarda stated that he received information about incident at 2-30 P.M. To 3-00 P. M. and he reached on the spot the incident and proved

55

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

at about 3-00 to 3-30 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 -VsState reported in 2011 (2) Crimes 27 (S. C.) contention. 73] It is respectfully submitted that Radheshyam Sarda to butters his

is a panch witness. He is not cited as a eye witness. Variance in the testimony of panch witness of spot panchanama vis-a-vis 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 3-00 P. M. to 3-30 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] ground to reject Repeatedly acting as a panch cannot be a the testimony of said witness ,

mechanically .Version of P. W. 5 Radheshyam Sarda remained unshaken. His testimony is reliable.

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 option. " to act as a panch and therefore, Investigating Officer has little

76]

In this case, said

spot panchanama

Exh-121 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 Nagpur. incident i. e. flat No. 205, Gayatri lok Testimony of P. W. 5 Apartment, Panch Witness Mr. Sarda When he has

cannot be discarded simply because he narrated incorrect time of his reaching on scene of occurrence. simultaneously admitted that he was present at the time of spot of incident till 11-30 P. M. substantiates his participation in Even not recollecting the preparation of spot panchanama.

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

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 Exh-121. As such, I find that the prosecution has duly proved drawing of seizure panchanama Exh-121 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 Exh-187 and 190 respectively, reflect that he has preserved viscera and articles (including He packed, sealed and bullets) recovered from the bodies,.

handed over it to Head Constable Pande. Recitals of Exhs-187 and 190 ( admitted documents ) substantiates it. 78] Similarly, Exh-279 seizure panchanama depicts that Investigating Officer P. W. 19 Mahesh Sawai has

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 Exh-279 is not disputed . 79] P. W. 19 Mahesh Sawai he sent Investigating Viscera and Officer deposed that on 12-05-2008

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 80] As such, prosecution invoice challan of through admitted has proved that the same vide Exh-320 and 322, to police station. document of seizure panchanama Exh-279 and un-impeached testimony of Investigating Officer P. W. 19 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

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 28-05-2008 vide Exh-282, accused no. 2 Sunil Sharma showed his willingness to recovery of weapon, hence, his voluntary disclosure statement was recorded vide Ex-284 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 Exh-285. 83] sealing of On this point, to prove the seizure and 3 cartridges,

three country made revolvers and

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 28-05-2008. Those were at Exh-173 and 174. respect of recovery of Though this witness has not hand guns and 3

whole heartedly supported the case of the prosecution, in 3 country made cartridges by investigating agency vide seizure memorandum dated 28-05-2008 at Ex-285 made in pursuant to statement of accused no. 2 Sunil @ Pintu Sharma vide Exh-284, it has been

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 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 Ex-285 is tainted with coercion and it is an outcome of applying method by the Investigating Officer is baseless. Counsel submitted that Exhs- 334 and 335 accused no. 3 Sunil Sharma 3rd degree Learned were recovered from accused no. 2 Sunil Sharma in pursuant to his

MLC Papers of

obtained during his remand, would clarify that could not gather courage to move complaint First Class during his

accused no. 3 was beaten mercilessly hence, accused no. 2 before learned Judicial Magistrate,

remand regarding 3rd degree method perpetrated to him.

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] Exh-16 P. W. 9 Dr. Shrigiriwar has removed

from the dead body of deceased Sushil and Exh-17 Deviprasad, after conduction of post

from dead body of deceased Suresh at the time of autopsy and he handed it over to 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 Ex-323. Ballistic Expert's Report Exh-207 shows that Exh-16, 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

62

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

that Exh-17 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 Exh-207,

prosecution has proved that Exh-16 - the bullet recovered from the dead body of Sushil Lakhotia and Exh-17 the bullet recovered from the dead body of Suresh Lakhotia, have been fired by the country made hand gun Exh-3 seized from accused no. 2 Sunil Sharma. C] Ballistic Expert's Report shows that Exh-6

bullet removed from the leg of injured Shailesh Lakhotia by Dr. Chandak is fired from country made hand gun Exh-1. 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 Exh-200 and further testified about drawing of seizure panchanama by the Investigating Officer regarding said bullet recovered from the body of Shailesh Lakhotia vide Exh-201. D] I find, though Dr. Chandak has admitted in Exh-196 discharge card of Shailesh

cross examination that

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

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 Exh-200, and proved seizure panchanama of said bullet by Investigating Officer vide Exh-201 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 Exh-207, I find, the prosecution has also proved that the made Sharma . E] Prosecution has proved seizure of bullet bullet Exh 6 was removed from leg of Shailesh Lakhotia , was fired from country hand gun Exh 1 seized from accused no. 2 Sunil

from the spot of incident. Report Exh-207 states Exh-13 ( one softnose copper jacketed bullet) was seized from the spot of incident is a that bullet fired from the country made hand gun also seized from Ex-2, which is exhibited as BF. Prosecution has also proved Country made handgun Exh-2 was 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 Exh-2 . F] Prosecution has proved seizure of empties

Exhs - 7, 8, 9, 10 and 11 from the spot of incident by proving

64

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

spot panchanama and also proved from report of Ballistic Expert Exh-207 that these empties are the empties of bullets fired from country made hand guns Exh-1, Exh-2 and Exh-3, 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 handguns Exh - 3 That, bullet retrieved from the leg of injured country made

Shailesh Lakhotia was fired from country made handgun Exh-1 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 Exhs-1, 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

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 Madiyav Police Station,

Tiraha, within the jurisdiction of

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] involvement of According to prosecution, on arrest of

accused no. 2 Sunil during

the course of interrogation,

other culprits i. e. Amit , Yogesh, Rakesh,

Shambhu, Baccha, Ankit and Chunbandh were revealed . 91] P. W. 14 Devesh Dilawarsingh Police Sub testified that on receipt of

Inspector, Special Task Force

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 Madiyav . at 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.

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. : mobile phone 357060001997066, From accused no. 1 Rakesh, one Nokia Model No. 6030 a SIM having card IME being No. No. having

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 mobile of Air Tel UPE and cash of Rs. 100/- . Model No. 1600 having IME No.

From accused no. 7 Yogendra Yadav, one Nokia phone 356957018049990 SIM Card No. mobile phone no. 9935047067 Rs. 150/From accused no. 8 Chunubadh, one Nokia mobile phone Model No. 1600 having IME No. 352260015110806 8991540605026209614, cash of

of Air Tel UPE and

67

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

SIM Card No.

8991540625026772017,

mobile phone no. one

9935811484 of Air Tel UPE and cash of Rs. 200/- . From accused no. 3 Samsung SGHX 600 Baccha @ Nandbabu, 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 Exh-225 of above articles and sealed those articles he reduced into writing said seizure panchanama through Police Sub Inspector Shri Girijesh Tiwari. Read-over 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 Exh-226 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

68

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

extract of station diary entry vide Exh-227. 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 Dilavarsingh on the point of testimony of P. W. 14 Devesh

arrest of accused at Madiyav, Dist : Lucknow, Uttar Pradesh vide arrest panchanama Exh-226, 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

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 27-05-2008 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

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 Kerala-Vs.- M. M. Mathew & Another reported in 1978 (4) S. C. C. page-65 : 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 Exh-226 Memo of arrest

Ex-226, does not bear date of arrest. bears date of arrest as 28-05-2008 . 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 . Exhs-225 and 226 are

71

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

silent about

hand overing the receipt of

articles allegedly

given. Exh-225 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 fxjrkjh )

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. Exh-226 also bears signatures of other six accused persons, separate seizure therefore same latches of hand overing to the case of prosecution. 100] Arrest panchanama Exh-226 bears

panchanama to every accused, in the investigation, is not fatal

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.

72

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

101]

Learned Counsels further submitted that in

Exh-225 the time of arrest is 15-10 hours and in Exh-226, time of arrest is 13-10 . 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 15-10 hours and in Exh-226 as 13-10 hours is not fatal, taking into consideration the arrest of 7 persons at single time which is further detailed in Exh-225. Bringing Accused No. 1, 3 to 8 at Nagpur 102] who had been Testimony of P. W. 19, Police Inspector Shri to Uttar Pradesh, after search and arrest of

Sawai further reflects that police team including PSI Mudgal, accused persons on 28-05-2008, brought those accused persons to Nagpur on 30-05-2008. a] On 30-05-2008 and its station diary entry

was effected at serial no. 50 bearing signature of Shri Mudgal, Police Sub Inspector vide Exh-289. b] to 296. c] P. W. 19 Police Inspector Mahesh Sawai by Police Sub testified that 2 parcels of articles seized at the time of arrest and search of accused persons in Uttar Pradesh Again necessary arrest forms of arrested

accused Nos. 1, 3, 4, 5, 6, 7 and 8 were prepared vide Exhs 290

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 Exh-132 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 Exh-225. The seizure panchanama Exh-132 bears signature of PSI Mudgal which was prepared by P. W. 19 Mr. Sawai at Nagpur on 30-05-2008 while taking possession of seized muddemal mentioned in Exh-225 from PSI Mudgal. e] Mudgal vide Further P. W. 19 has prepared a separate received through PSI Exh-132, which is also corroborated to the

seizure panchanama of two parcels

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 Exh-225, 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 Exh-225 and arrest memo Exh-226 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 Exh-227 of police station Madiyav, regarding this seizure of said articles which fortified the version of P. W. 14 regarding

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 investigation, he prepared inventory of prepared its panchanama vide

testified that during

various mobile numbers saved in Phone Book of mobiles seized from accused persons and Exh-152. 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 Exh-316. 108] Gupta Exh-317 On 07-07-2008, he sent letter to

B. S. N. L., for securing IME No. of mobile phones of Rajaram and received its reply vide Exh-318 on By using the said Code number, he 350638207633507 . Its 11-07-2008. Vide Exh-318 Code number for searching of IME Number was supplied. it to be retrieved IME Numbers of mobile of Rajaram Gupta and found 354991002137836 and panchanama was prepared vide Exh-153. 109] He deputed Head Constable Pande, B. No. which were seized from accused

1584, to collect necessary details of C. D. Rs., ownership of mobile phones , SIM Cards

76

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

persons by issuing letter vide Exh-330.

110] Uttar Pradesh

Accordingly, Head Constable Pande went and submitted report vide Exh-331 on

03-08-2008 . C. D. Rs., were also submitted by Head Constable Pande, which is placed on record along with report Exh-331. Accused No. 1] 3] 4] 6] 6] 6] 6] 7] 8] Name of Accused Rakesh Khushwaha Baccha Nandbabu Mourya Shambhu Raikwar Amit Varma Amit Varma Amit Varma Amit Varma Yogendra Yadeo Chunbadh Mobile Contact Nos 9839478757 9794358376 9792578182 9760256285 9793854362 9926821997 9935729761 9935047067 9935811484 Exh. Nos. 216 232 216 * 231 230 332 233 235 234

111] mobiles were

During

investigation, it revealed that all

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

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 Exh-216, 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 01-05-2008 to 28-05-2008 were asked. 113] House No. II, Bharatpur, ( Exh-216) . 114] P. W. 15 Kaushalendra Tiwari, Nodal in response to requisition letter P. W. 13 also submitted the information Amanpur, vide its Chitrakut and Mobile No. letter dated 21-07-2008

that Mobile Number 9839478757 belongs to one Rajeshwar, 9792578182 is owned by Premnarayan, Village : Vikas Nagar, Chitrakut

Officer of Airtel Company, submitted covering letter vide Exh-229 along with CDRS received vide mobile 228-A for giving necessary data of 7 mobile and call details from 01-05-2008 to

number including names and addresses of persons holding said numbers 28-05-2008. From the servers of Company he submitted

system generated information - call details of mobile numbers

78

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

asked

[1] 9794358376 vide Exh-232, call details of mobile

number [4] 9935729761 vide Exh-233, call details of mobile no. [6] 9935811484 vide Exh-234; call details of mobile no. [5] 9935047067 vide Exh-235 and call details of mobile number [2] 9935179076 vide Exh-236 along with requisite certificate. He also submitted nil report of mobile number [3] 9793854362 vide Exh-230 and nil report of mobile number [7] 9760256085 VIDE Exh-231 . 115] P. W. 18 Rajiv Rajgopal Sharma, official deposed

working in Reliance communication limited, who

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 01-05-2008 to 28-05-2008. 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 01-05-2008 to 28-05-2008. 116] Prosecution also examined P. W. 20 Sachin He testified

Shinde, Nodal Officer of Idea Cellular Mobile.

that in response to requisition letter dated 28-06-2008 Exh-343

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 30-06-2008 . He submitted details of occupier of said mobile phone numbers and his address to Investigating Agency along with call details from 01-05-2008 to 15-05-2008. Details of Occupier of mobiles are filed vide Exh-344 and the CDRS, retrieved from servers system available with Company, have already placed on record vide Exh-281, with requisite certificate vide Exh-345. He also produced on record system

generated CDR of mobile Nos. 9926821997 belonging to India Cellular Mobile Company from Madhya Pradesh vide Exh-332. 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. 1] 2] 3] 4] 5] 6] Name of Accused Rakesh Khushwaha Baccha Nandbabu Mourya Shambhu Raikwar Amit Varma Amit Varma Yogendra Yadeo Mobile Nos Exh. Nos of CDRS 9839478757 9794358376 9792578182 9760256285 9793854362 9935047067 216 232 216 * 231 230 235

80

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

7]

Chunbadh Sim Cards

9935811484

234

1] 2]

Amit Varma Amit Varma

9926821997 9935729761

332 233

Mobile Phones found in the vehicle, seized in pursuant to his statement . 1] Sunil Sharma 118] Further

tool box of

9370549568 Exh-271 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 Exh-281 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 Ex-270 . 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] 18 and find, seizure of Cross examination of P. W. Nos. 13, 15 , mobiles from respective accused has been Reasonable inference can

20 is tried to be scathed by the defence Counsel. I

proved without reasonable doubts.

be drawn that the contact number of the SIM inserted in the

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 material times . 121] revealed that As testified by P. W. 18 from record, it four calls were made from mobile number by operating that mobile instrument for all

9371527820 seized from Gayatri Khushwaha to mobile number 9794358376 of Nand Babu four calls were received from 9839478757 of Rakesh Khushwaha to mobile number No. 9371527820; 29 calls were received from mobile 14-05-2008; 122] no. 9935047067 Further, 10 calls were received from mobile of Amit Varma to 9371527820 from

9792578182 of Shambhu to 9371 527820 from 06-05-2008 to

01-05-2008 to 05-05-2008; 7 calls were received from mobile No. 9844420643 of Ankit Shukla to 9371527820 from 02-05-2008 to 05-05-2008; Call details of mobile Phone No. 9371527820 and 9370549568 Sunil Sharma are placed on record vide Exhs-270 and 271 and certificate in support of Exhs - 270 and 271 is placed on record vide Exh-273 . 123] 9793854362, The fact that instruments having Cell

Nos. 9839478757, 9794358376, 9792578182, 9760256285, 9935047067, 9935811484, 9370549568, 9371527820, 9822832564, were seized from accused No. 1 Rakesh Khushwaha, accused No. 3 Baccha Nandbabu Mourya,

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 17-05-2008 to
21-05-2008 ;

Accused no. 3 Nandbabu @ Baccha Mourya on his contact number 9794358376 for 8 times during the period from 18-05-2008 to 21-05-2008; Accused no. 4 Shambhu Raikwar on his contact number 9792578182 for 15 times during the period from 16-05-2008 to 19-05-2008; Accused no. 9 20-05-2008 to 27-05-2008; Omprakash Gupta on his contact

number 9822832564 for 24

times during the period from

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 16-05-2008 to 23-05-2008 and from Accused No. 6 Amit having contact No. 9226821997 for 5 times on 23-05-2008. 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 06-05-2008 to 08-05-2008 ;

Accused no. 2 Sunil Sharma on his contact number 9370549568 received total 9371527820 12-05-2008 Accused no. 2 Sunil Sharma on 08-05-2008 received 3 calls on his contact number 9370549568 accused no. 1 Pappu having contact no. 9326893805. Accused No. - 3 Nandbabu @ Baccha Mourya from 36 calls from contact no. 02-05-2008 to during the period from

having contact number 9794358376 called Accused no. and 04-05-2008 Accused No. - 3 Nandbabu @ Baccha Mourya having contact number 9794358376 received 4 calls from 1 Rakesh @ Pappu Khushwaha on

contact number 9371527820 for 2 times each on 03-05-2008

84

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Shambhu

Raikwad

having

contact

no.

9792578182

on

05-05-2008; received 2 calls from Contact no. 9935179076 ( suspect ) on 05-05-2008; received 28 calls from accused no. 9 Omprakash Gupta having contact no. 9822832564 during the period 18-05-2008 to 25-05-2008; received 9839478757 from 18-05-2008 to 27-05-2008. Accused No. 4 Shambhu Raikwad having contact number 9792578182 contacted Accused no. 1 Rakesh @ Pappu having contact no. 9326893805 on 05-05-2008 for 3 times; for 6 times. Accused No. 1 Rakesh @ Pappu Khushwaha having contact No. 9839478757 for 43 times during 17-05-2008 to 25-05-2008 Accused no. 3 Nandbabu @ Baccha having contact no. 9794358376 on 05-05-2008 for 4 times and on 06-05-2008 for 2 times; and for 30 times during the period from 18-05-2008 to 27-05-2008; Accused No. 5 Ankit on his contact no. 9844420643 for 1 time on 05-05-2008; for 1 time on 16-05-2008 , for two times on 17-05-2008 and on 19-05-2008 for 4 times. and on 09-05-2008 total 21 calls from accused No. 1 Rakesh Khushwah having contact no.

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 on14-05-2008 and for 15-05-2008. Contact No. 9371527820 for 1 time on 05-05-2008, for 3 times on 06-05-2008; for 4 times on 09-05-2008, for 11 times on 10-05-2008, for 1 time on 11-05-2008 and for 7 times on 12-05-2008; Contact No. 9935047067 (suspect sim ) for 1 time on 05-05-2008, for 3 times on 06-05-2008, for 5 times on 09-05-2008 and for 2 times on 10-05-2008. Accused No. 4 Shambhu received calls from Contact No. 9371527820 for 7 times during the 5 times on

period from 05-05-2008 to 07-05-2008; for 1 time each on 09-05-2008 and 10-05-2008, for 2 times on 12-05-2008, 4 calls each on 16-05-2008 and 17-05-2008. Accused No. 1 Rakesh @ Pappu having contact No. 9839478757 for 36 during period from 16-05-2008 to 24-05-2008 and for 2 times on 27-05-2008, Accused No. 1 Baccha for 1 time each on 20-05-2008 and 21-05-2008 and for 3 times on 23-05-2008. Accused No. 5 Ankit for 8 times on 09-05-2008, for 3 times on 10-05-2008; and 2 calls on 16-05-2008

86

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Accused no. 9 Omprakash Gupta on 08-05-2008 for 5 times; for 2 times on 26-05-2008, Accused no. 6 Amit having contact no. 9793854362 for 3 times each on 16-05-2008 and 23-05-2008. Accused no. 6 Amit having contact no. 9226821997 for 4 times from 15-05-2008 to 17-05-2008 Accused No. 9 Gajju Gupta for 08-05-2008, 27-05-2008. Contact No. 9935179076 on 09-05-2008 for 4 times and for 3 times on 10-05-2008 Accused No. 5 Ankit Shukla having contact No. 9844420643 called Accused No. 4 Shambhu on 09-05-2008 for 8 times, on 10-05-2008 for 3 times, and on 16-05-2008 for 2 times. Accused No. 6 Amit Varma having contact no. 9226821997 contacted Accused No. 4 Shambhu for 1 time on 07-05-2008, for 2 times on 14-05-2008 and for 1 time on 15-05-2008 Accused no. 6 Amit Varma on his contact no. 9935729761 received 2 calls on 22-05-2008 from accused no. 1 Rakesh Khushwaha having contact no. 9839478757 2 times on 26-05-2008 and 5 times on for 1 time on

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 02-05-2008; Contact No. 9371527820 for 2 times on 02-05-2008 Accused No. 1 Pappu for no. 9839478757 for two times Accused No. 1 Pappu having contact No. 9839478757 for two times on 09-50-2008, for 1 time each on 10-05-2008 and 11-05-2008, for 1 time on 19-05-2008 and for two times each on 20-05-2008 and 23-05-2008 Accused No.1 Pappu having contact No. 9326893805 for 3 times on 09-05-08, ( Suspect ) Contact No. 9935179076 received calls from Accused no. 1 Pappu having contact no. 9839478757 for 2 times on 11-05-2008, for 4 times each on 18-05-2008 and 19-05-2008 Accused No. 4 Shambhu having contact no. 4 times on 3 times on 09-05-2008

having contact No. 9326893805 and for 2 times on contact

9792578182 for 3 times on 06-05-2008, for 11-05-2008.

09-05-2008 and for 1 time each on 10-05-2008 and

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 on02-05-2008 To contact No. 9371527820 for 2 times on

02-05-2008, and for 6 times between 09-05-2008 to 11-05-2008 Accused No. 1 Rakesh @ Pappu having contact No. 9839478757 for total 4 times from 09-05-2008 to 11-05-2008, for 2 times on 23-05-2008 and for 1 time each on 19-05-2008 and 26-05-2008, Accused No. 1 having contact No. 3 times on 09-05-2008 Accused No. 4 Shambhu having contact No. 9326893805 for

9792578182 for 3 times on 09-05-2008 Accused No. 5 Ankit for 1 time each on 09-05-2008 and 10-05-2008 ( Suspect ) Contact No. 9760256085 received

calls from - Accused No. 1 Pappu having contact No. 9839478757 for 4 times each on 18-05-2008 and 19-05-2008; Accused No. 4 Shambhu for 3 times on 06-05-2008 and for 6 times during 09-05-2008 to 11-05-2008. This reflects that association with each other. accused were in close

89

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

125]

Learned

Counsel

for

accused

no.

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 that on dates by

submitting written arguments have submitted in tabular form 3-5-2008, 4-5-2008, 5-5-2008, 6-5-2008, respective incoming calls are not 7-5-2008, 22-5-2008, 23-5-2008, and 25-5-2008, out going calls though registered 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.

90

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

128] data entries or

It is submitted that unawareness, when the non mentioning of details of crime number,

SIM card was issued to applicant or time of printing of the said 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 inter-se between the accused during that period. 131] deactivated Learned Counsel for the accused were not

vehemently argued that since SIM numbers

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 65-B under Information Technology Act, though prepared in

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] authorized As such, said CDRs filed by P. W. Nos. 13, / officers of respective Companies,

15, 18 and 20 being system generated data certified by the persons disclosing communication between the parties is reliable and authentic piece of evidence. 135] proved fact of In my view, prosecution has successfully communication inter-se between the parties

through CDRS beyond any reasonable doubt. 136] learned on between record the I agree with the submissions of the show phone that communication mentioned was above made inter-se

District Government Pleader that call details placed numbers

before the commission of the crime and after commission of crime. Said communications are the reflection of the fact of accused . commission of dacoity with conspiracy hatched by

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] ii] 138] Balletic Report Call Data Reports 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] submitted that Analyzing ocular evidence alleged first, it is to prove the offence against the

accused nos. 1 to 8 under Section 120-B, under Section 396, under Sections 395 r/w. 397 of Indian Penal Code , ingredients of offences is necessary to be seen. 142] (1) (2) 120-A : Criminal Conspiracy When two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means , suchan agreement is designated a criminal conspiracy;

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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 120-B 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 Firstly, prosecution has to prove that 5 or more persons conjointly committed dacoity and any of them committed murder of Suresh Lakhotia and 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, Sushil Lakhotia during commission of dacoity ; to hold everyone of those Indian Penal Code against accused Nos. 1 to 8 -

94

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

used deadly weapons or caused Lakhotia offence . 145] or

grievous hurt

to Shailesh

attempted to cause death or grievous hurt to

Shailesh Lakhotia , to hold everyone of those persons guilty of 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 regarding murderous assault the evidence led by the prosecution. P. W. 1 Ritesh Kothari in his substantive evidence Shailesh Lakhotia deposed that, he was working for Suresh Lakhotia and at Flat No. 205,

in their office situated

Gayatri Lok Apartment, Ambedkar Chowk, Nagpur. Lakhotia brothers were dealing in the business of Saw Mill, Money Transfer business. a] On 08-05-2008 at 5-30 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

95

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Lakhotia , Paliwalji and Sharmaji in the said room. persons having knife. c]

3 to 4

were having guns in their hands and one person was

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

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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] Kothari is As such testimony of P. W. 1 Ritesh

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] ft. According to P. W. 1 Ritesh Kothari,

assailants were of the age group 25 to 30 having height of 5.6 P. W. 1 Rakesh Kothari lodged report vide Exh-93 and accordingly, first information report was registered vide Exh-94. 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

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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 08-05-2008 at about 5-00 to 5-15 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 As soon as three persons

Lakhotia entered in the office along with one bag and went to another room, kept it and came in hall again. Suresh Lakhotia came in the hall, suddenly

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 mobile phones lying on the table. b] One of the assailants having revolver other assailant snatched mobile phone of Shailesh and collected other

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

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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 that assailant fired on Suresh having revolver. At that time, that assailant also tried to snatch golden chain of Suresh. When 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] Chor. They came to gallery and shouted Chor

They heard noise of firing from hall side. They saw it was Hero Honda

many persons gathered near the building and 5 assailants ran away by two motorcycle, out of one, 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] collection of cash informed to his office. P. W. 2 Gopal Sharma also reiterated about fallen on ground and shifted it. He also the incident to his employer and returned back

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

g]

In short, P. W. 2 Gopal Sharma witnessed murderous assault made by the

the death of Suresh by firing , but as he has closed the door, he could not witnessed the assailants on Sushil Lakhotia and Shailesh Lakhotia. h] Before the Court this witness has identified This having

accused no. 3 as a person having revolver and who fired on Suresh Lakhotia at the time of commission of crime. witness also identified revolver in his hand. crime. accused no. 5 as a person

He also identified accused no. 7 as a

person having knife in his hand at the time of commission of 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 08-05-2008 in the office of Lakhotia brothers at about 4-45 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

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

towards Shailesh Lakhotia, broke down telephone wires. Thereafter, 2-3 assailants , one carrying knife and other carrying revolver entered in Thereafter those assailants the office of Lakhotia Brothers. asked them to go inside room. Lakhotia Brothers in

Assailants took all of them to inside room. According to him, all assailants entered in the office of muffled faces, however lateron, their muffled faces got opened. a] He reiterated about making them to sit on one of the

the ground and pointing out the revolver by from him.

assailant to Suresh Lakhotia and asking about keys of cupboard 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 Shailesh Lakhotia rushed towards

Sushil Lakhotia and

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.

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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] Lakhotia Brothers. They all came out of the room in the hall He deposed about his witnessing Sushil

and contacted his boss from land - line and left the office of 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.

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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 08-05-2008 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 rq gs v!xls "ks!uk #Msxk 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.

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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 On

hold one of the assailants , took him towards kitchen and caught hold him tightly, who had revolver in his hand. pot on his head. e] At the relevant time, another assailant searching something to hit, he hit the said assailant by earthen

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. gate, due to bullet injuries on his person. f] Before the Court, this witness identified At the same time, Sushil also reached there and collapsed outside the

accused no. 3 as a person having revolver and Kadtus in his hand and injured him on his leg. He also identified accused

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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 crime. Cross examination of the witnesses before the Court stating that assailants were holding these weapons at the time of commission of the

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.

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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 Honble Apex Court that
"In fact some contradictions are bound to happen considering the time lapse between the incident and evidence before the Court. Taking incident witnesses into consideration different observation capacity and horror of the it cannot be expected that 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

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

not cut roots of the prosecution. 151] time Learned defence Counsel on the line of cross-examination, vehemently argued that first information report Exh-93 is ante-time 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 -VsState 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 Exh-93 can be That, first information report is ante-

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

treated as first information report and not spot panchanama Exh-121. Registration of first information report is not a 152] That, Exh-336 of spot panchanama : as by learned defence counsels drawing spot condition precedent to set in motion criminal investigation. regards argument advanced Exh-336), of offence.

regarding portion mark A of spot panchanama ( Proved as it is submitted that moto behind panchanama is to collect the traces of evidence from the scene Statements of the witnesses are recorded for Unwarranted recitals made panchanama discredit the 153] that there were evidence of witnesses in the spot throwing light the manner in which the crime has taken place. 4 accused persons would not before the Court who

testified about presence of 5 persons on the spot of incident. 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 VsState of Maharashtra reported in 1996EQ(BOM)-0-183, in which it is held that

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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 Saste. Aru Surve along with friend In this circumstance examination of Aru Surve is 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 10-05-2008. P. W. 3 Devesh Paliwal was available for

considered essential for unfolding of narration.

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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 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 accused as suggest that investigation was deliberately made to shape the prosecutions case. Furthermore, identity of 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 -

support the case as eye witnesses.

Learned Advocates for the accused persons placed reliance upon ratio laid down in -

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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 been observed that Blood stained clothes from the place of it true occurrence not sent to chemical examiner, indicates that defence version may be

Bihar

reported in AIR 1976 ( S. C. ), 2263 in which it has

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

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, Learned Exhibit-334, Advocates contradictions for the in statements cuts roots of prosecution case. accused strenuously argued on Exh-334. Exh-334 as recorded in the statement of Ritesh it is mentioned that were Paliwalji, Sharmaji sat with me (him) in the inside room is proved by

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Investigating Officer. I find, mere contradiction contents of

with police

statement of witness is not admission of prosecution case since such contradictions are denied in substantive other evidence by witnesses. Significantly, in spite of having opportunity, defence Counsels have failed to confront witnesses Gopal Sharma and Devesh Paliwal with said part of testimony Exh-334 appearing in the statement of P. W. 1 Ritesh. 157] Taking into account admissions and denials of oral evidence is of P. W. 1 to witnesses, on appreciation of of P. W. 1 Ritesh Kothari

P. W. 4, it needs to be mentioned conclusively that, testimony 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. such the versions of eye witnesses As 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] Shailesh From the testimony of injured witness it reveals that after scuffle with assailants in hall,

Sushil Lakhotia sustained bullet injuries on his person and he collapsed out side the gate .

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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] A] Summarily, it is stated that 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 Exh-93 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 holding prosecution has conjointly proved beyond reasonable doubt that five and more persons deadly weapons, firearms and knife, 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

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 by that assailants snatched golden chain and took away that money bag ( Thaili ) and as such proved the extortion assailants . C] Evidence surfacing on record shows that Suresh was fired and

assailants conspired and reached to spot of occurrence holding revolvers and knife in their hands . 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.

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

On the basis of record, prosecution has intentional murders 08-05-2008 between

this material brought on on

proved commission of dacoity and 5-30 P. M. in the office of

of Suresh and Sushil Lakhotia 5-00 to

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 dacoity. Murder he may have no participation in 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 assailants is assailants had muffled their faces and

defence mainly on the ground that identity of impossible since

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

116

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

since the assailants had muffled their faces. Complaint Exh-93 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 know and muffling of faces , which facilitated him to assailants, but in the has stated that he has stated to the creates suspicion about see features of the

cross examination he

police that three assailants were muffled their faces by the clothes of different colours investigation.

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F]

The testimonies of P. W. Nos. 1, 2 and 4 cannot be is

accepted on the point of mufflers coming off, as it

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.

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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, vis--vis 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 P. W. 16 Prakash Somkuwar, Special relies on testimony of

Judicial Magistrate, who testified that on 22-06-2008 at about 09-00A.M. in Central Prison,Nagpur,he conducted identification parade as per requisition letter Exh-241 dated 17-06-2008, issued by P. St. Lakadganj. Names of witnesses and the accused were provided to him and he fixed identification parade on 22-06-08 at 9-00 A.M. at Central Jail, Superintendent of Central Jail and issued letter to for necessary Nagpur

arrangement and issued necessary summons to the witnesses.

119

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B]

On 22-06-2008, at about 8-30 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 Pankaj Karwati identifying witnesses were called by

Watchman of Central Prison . On completion of identification parade, he submitted memorandum of identification parade vide Exh-253 under his signature and signatures of Panch witnesses Kamalakar and Rushiraj. C] Exh-253 discloses that suspects accused Sunil Sharma and Rakesh Khushwaha were not identified by any identifying witnesses. Suspects Shukla were identified by Suspect Nandbabu Mourya and Ankit P. W. 1 to P. W. 4 . P. W. 4 Shailesh. Suspect accused all witnesses

Amit Varma was identified by Shailesh Lakhotia.

Suspect Shambhu Raikwad was identified by P. W. 3 Devesh Paliwal and P. W. 4 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.

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164] nos. 1 to 8

Learned Counsels appearing for accused strenuously argued that evidence in the to the

identification parade needs to be discarded as conduction of identification parade is made with utter disregards 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

121

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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 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 worthy of

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of present accused . Thus, test identification parade be thrown out of board . Learned Counsels 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

for

accused

nos. 1 to

8 to buttress the contention relied upon

the ratio laid down in

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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 circumstances it can be that there shown was from the 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

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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 thatIn 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 Pradesh reported in 1999 Cr. L. J. 4375, wherein it has been held -

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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. observed Farcical. 165] Per contra, learned D. G. P. for the State It was that Identification parade held

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 166] I have carefully the identification above cited

parade was conducted with compliance of the guidelines . perused authorities . Taking into account present set of facts, from the ratios laid down in these authorities, conclusion undoubtedly test I reached to the parade was most callous submission of issued identification

conducted by Special Judicial Magistrate in row, calling of identifying witnesses up to

manner right from selection of dummies , their placings in the memorandum of identification parade; test identification parade is conducted without strict compliance of guidelines . Since mandatory requirements stipulated in

guidelines issued by Hon'ble High Court in Criminal Manual

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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. and unreliable, thus needs to be discarded. 167] It is submitted as a general rule, substantive I find Identification Parade conducted in the present case is doubtful

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)

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and contended that for identification the infirmity in test identification parade will not affect out come of the case since sustained identification the deposition of Test aids in witnesses in Court is reliable and could conviction. only parade

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.

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 They are primarily

substantive evidence.

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 depending upon the facts. Oral evidence matter of scrutiny led before Court

during trial is substantive evidence, whereas evidence of Test Identification Parade per-se 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 -

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"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] 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 In the case of Malkhansingh -Vs- State of Madhya Pradesh reported in ( 2003 ) 5 SCC 746 at 752 it

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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. parades are essentially They do not governed by constitute substantive evidence and these Section 162 of the Code of Criminal

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Procedure.

Failure

to

hold

test

identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to In appropriate such identification should be a matter from the Courts of fact. 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

132

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the Court is impressed by reliance on the

the testimony of

particular

witnesses, it can safely rely without any corroboration . Placing 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
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 Exh-1 further, bullet found on the spot of incident was also fired from country made handguns Exh 2 .

corroboration to the case of the prosecution

Likewise, empties Exs 7, 8, 9, 10 and 11 found on spot of incident are fired from country made handguns Exhs-1, 2, and 3 seized from accused no. 2 Sunil Sharma further scrutiny of substantive evidence is done. 177] with weapons I have already discussed that prosecution has at relevant time at the spot of incident . spoken and cash bag and golden proved through oral testimony presence of 5 persons armed Threatening words were Homicidal death of

chain were extorted by assailants on point of deadly weapons. Suresh and Sushil Lakhotia is uncontroverted fact. As such, all essential ingredients of Sections

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. participant and abettor ascertainment of guilt . 179] are considered at par Actual on

Prosecution is not even required to

prove which of member did which offensive act. Whether prosecution proves presence of 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 Exh-334, 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 assailants on the spot of incident.

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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. Un-shaken testimony of P. W. 1 Ritesh coupled with oral report Exh-93 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] A] To evaluate the arguments that suspect were testimonies needs to be looked into. Testimony of P. W. 4 Shailesh would reflect shown to the witness

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

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 C] denied the suggestion that he was shown the Much ado has been made of admission of But, culprits before identification parade. witness Ritesh Kothari that it is true to say Shailesh, Paliwalji, Sharmaji all accompanied me in the police station. Shailesh has denied it straightway . Wheres, witness Gopal Sharma denied the suggestion that when accused persons were arrested them. D] E] A positive evidence led by witnesses cannot Notably, P. W. 3 Devesh Paliwal admits that be washed by negative evidence. 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 I P. W. 3 Devesh parade, vitiates his identification of assailants before Court. find it weakens credibility of testimony of and brought to police station, they were shown to

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.

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] A] Ocular testimony whether proves presence Testimony of P. W. 4 Shailesh Lakhotia, and involvement of accused no. 6 : 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 slapped him. B] Paliwal have P. W. 2 Gopal Sharma and P. W. 3 Devesh stated their presence in hall as customers at two assailants followed, entered in the office, snatched phone from him, broke telephone and

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.

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

D] E]

As such, I find testimony of P.W. 4 Shailesh P. W. 4 injured witness Shailesh has

is corroborated by testimony of P. W. 1, P. W. 2 and P. W. 3. 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] courage to such not only G] Even after firing, witness Shailesh gathered fight with assailants, after firing on Suresh, as occasion but stability of mind Accepting obvious to store the whether

impression in the mind also can be assessed positively. contradiction 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 found on the place of incident was analyzed by Ballistic Expert as Used gun . Only empty sent for its comparison unsuitable for examination but presence of Nitrate powder and

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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 Exh-4, 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 stand. has been identified before In the cross examination Court by making him

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 K] L] no. 6 recorded after identification parade with specified role played by them in a dacoity. Being part of activities occurred in the front Learned Counsel Shri Gaikwad for accused submitted that in view of the facts and on appreciation hall of office, this aspect has been discussed first.

of circumstantial evidence which fails to constitute a complete chain consisting with guilt of accused no. 6, benefit of doubt be given to him .

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 appreciation of evidence in this

the above case about

authority, further scrutiny is made. O] Authorities : 1] 2] 3] 4] 5] 6] State of Punjab -Vs- Rajindersingh, reported in 2009 EQ- (SC) 0A-1209 State of Madhya Pradesh -Vs- Munshi Sinh, reported in 2009 EQ(SC)-0-676 Arun Dhumal -Vs- State of Maharashtra, reported in 2006 (EQ) BOM-0-1463 Dharampal -Vs- State of U. P. reported in 1995 EQ (SC)-0-453 Puransingh -Vs- State of Uttaranchal, reported in 2008 EQ (SC)-0-46 Harchandsingh -VS- State of Punjab reported in 1981 EQ(SC)-0-18 Learned Counsel Shri Gaikwad for accused

no. 6 placed reliance on the ratios laid down in following

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 Exh-4 . 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 Exh-4. Thus, it would be harsh to hold accused no. 6 responsible for assault, causing death or injuries. occurrence were The seized guns as well as cartridges which were recovered from scene of 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 that bullet injuries caused to the argument advanced by learned Counsel for accused no. 6, I find, prosecution has proved 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

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

Exh-4, (which was recovered at the instance of accused no. 6. ) 186] Only on this factor whether benefit of doubt 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 prosecution to prove that gun Exh-4 for the was used in the crime. can be extended to the accused no. 6 needs consideration :

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] A] Ocular testimony whether proves presence : As the evidence stands, it is necessary to see and involvement of accused nos. 3 and 5

whether the witnesses had chance to observe and store the impression in mind about accused Nos. 3 and 5 in particular.

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

B]

To scrutinize

event

occurred in a room Ritesh testified

where P. W. 1 Ritesh was running laptop, it is necessary to go through the testimony of P. W. 1 Ritesh. 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 Sushil and Shailesh is contradiction whether assailants took

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

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 corroboration would be unwarranted. F] the case of Learned D. G. P. by placing reliance upon Abdul Sayeed -vs- State of Madhya Pradesh, expectation of

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 I find, the testimonies of

corroborated testimony of Ritesh.

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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 One of the Suresh and Sushil showed unawareness. 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 J] country made hand guns Exhs 1 to 3 seized by Investigating Officer from one of the assailants . 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 Sharma that both guns ( handled by accused nos. 3 or 5 ) were seized from one of the accused No. 2 Sunil and traces of firing of it find place at the spot of

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 involvement in commission of crime.
188] Ocular testimony whether proves involvement of accused no. 7 in commission of Crime :

on the spot and their

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 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] A]
Ocular testimony whether proves presence and involvement of accused no. 4 :

P. W. 2 Gopal Sharma and P. W. 4

Shailesh Lakhotia, who added that a person holding knife had

Learned Counsel Shri Jaltare for accused no. who has reported the matter

4 Shambhu submitted that complainant Ritesh Kothari alleged eye witness of incidence immediately after the incident, in the night hours, has stated the description of assailants of age group 25 to 30 years. He

146

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

has described one of the assailants having ( B]

height 5.6 ft.

lk$%k j&x )Savala colour, medium built. He has not given Learned Counsel submitted that Shambhu

description of accused Shambhu in his complaint. 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, short man. 5.6 ft as medium and below that a Presence of Shambhu who is a dwarf ( a short

man ) is having distinguishing identifiable feature, but his description as assailant is not mentioned in Exh-93 . 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 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 that he was confused. , hence, presence of accused no. 4 Shambhu is not proved by the

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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 regarding transferring the cash not stated description of the person caught hold by Sushil, in his statement, his version remained unshaken. This can be gathered from his statement that he has described a person having short height as a (Butara) ("qVjk) and Sawala colour (lk$%k j&x) pistol) in his statement . Even the 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 dwarfness would not spare no. 4 on the basis of activities while commission of crime, strenuously argued aspect of 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 5-35 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 firing them to sit , of area snatching chain and bullet on Suresh is was holding gun (big reference of transferring

the cash is apparent in in his testimony though with slight

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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 faces, on account of traumatic and tragic features of assailants would get experiences

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] in Delhi ) By placing reliance upon the ratio laid down the case of Siddhartha Vasishtha -Vs- State ( NCT of in which Harbhajan Singh -Vs- State of J & K
Though a test identification parade was not held, this Court upheld the conviction on the basis of the identification in Court

reported in ( 1975 ) 4, SCC 480, is referred it is stated that -

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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 16-12-1971 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

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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 to the above lend enough of the assurance appellant . implication

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 Exhs-1, 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 one by one

evidence brought on record by the prosecution in the participation of the crime. :

which incriminates particular accused showing his involvement

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

A]

Whether prosecution proves circumstance of :

Seizure of Chit Exh-158 having Motorcycle No. MH-31-CB-2574, Jeans pant and Motorcycle bearing No. MH-31-BC-2574 (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 Exh-158 in which motor cycle number MH31-CB-2574 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 pursuant to which,

accused No. 7 Yogendra Yadeo, who , as per the prosecution, has confessed to P. W. 19 Mr. Sawai recovery of this vehicle was made. d] Nikose, who runs Prosecution has examined P. W. 11 Shilpa an Institute of Handicraft and business of

painting. To prove the painting of a number plate bearing No. MH-31-CB-2574, 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

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 Exh-158 bearing No. MH-31-CB-2574 . 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 He had left that stolen which was stolen by him prior to commission of crime and used by him in the instant crime. 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 Station. of No. MH-31CB-2574 bearing Property No. 5 of 2008 of Tahsil Police

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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 MH-31CB-2574 were separated and seized under seizure panchanama Exh-304. 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 vehicle of alleged false

does not support prosecution since

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 MH-31-CB-2574 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.

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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 MH-31CB-2574 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 of P. W. 19 who testified that on

upon the testimony

05-06-2008, accused no. 9 Omprakash Gupta produced a chit Exh-158 having number MH-31-CB-2574 and one Jean pant of accused no. 7, which were seized under seizure panchanama Exh-147. The prosecution witness P. W. 6 Chandrashekher Kapse has also testified and corroborated seizure of said chit of number MH-31-CB-2574 and one blue coloured pant seized from accused no. 9 Omprakash Gupta. n] Admittedly, accused no. 9 Omprakash Gupta accused no. 9 Omprakash Gupta

is brother-in-law of accused no. 1 Rakesh Khushwaha . The prosecution claims that 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 MH-31-CB-2574, 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

155

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

vehicle No. MH-31-CB-2574 ( Exh-158) is in the handwriting of accused no. 1 Rakesh Khushwaha. p] The P. W. 19 Mr. Sawai testified that for

specimen handwriting Exh-155, a panchanama Exh-145 was prepared and was sent to P. W. 22 handwriting expert Deepak Pandit, who submitted his report vide Ex-329. q] Finding of said hand writing expert was tried

to be scathed . But, I submit, since I have held that, recovery of vehicle No. MH-31-CB-2574 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. MH-31CB-2574. r] Furthermore, finding of a stray chit allegedly

having number MH-31-CB-2574 in the house of accused no. 9 and its hand overing to police by accused no. 9 on 05-06-2008, 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 :

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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 Exh-300. Accused no. 1 further took party to the house of his father-in-law at Sujata Nagar, Nagpur and recovered one Hearth which was seized by Investigating Officer vide Exh-301. The prosecution also tried to support his testimony with Panch witness Ravindra Bargad P. W. 8 who admitted his signature over Exh-300 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 As In nor residue of burnt clothes or ash was found near hearth. burning clothes of other accused persons and SIM Card.

such, there is no confirmation that the hearth was used for 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.

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

C]

Whether Prosecution proves circumstance of : Seizure of motorcycle Kinetic Challenger having blood stains on seat cover and

MH-31-AR-9557 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 Exh-141 in pursuant to which, said Kinetic Challenger was seized vide seizure panchanama Exh-142. b] It has been argued by learned Counsel that on record to show that said There is no W. 19

there is no iota of evidence consistency

motorcycle was used in commission of crime.

between evidence of P. W. 6 Chandrashekhar

Kapse, who allegedly acted as a panch and P.

Investigating Officer Mr. Sawai. In the cross examination of P. W.19 says that recovery of chit containing mobile numbers and motorcycle bearing No. MH-31-AR-9557 were seized one after another in the evening hours. Exh-141 confessional statement , seizure panchanama Exh-140 for seizure of chit was done in the evening hours at about 6-00 to 7-00 P. M. , whereas P. W. 6 Panch witness Chandrashekhar Kapse says that initially chit Exh-157 was seized from the house of accused no. 1 in the morning hours. The police party along with accused came back

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 6-00 to 7-00 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, the crime. e] I agree with the submission of learned concluding guilt or otherwise in

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 Exh-157 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 -

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 Exh-157 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 was seized by Investigating Officer P. panch witness prosecution. c] P. W. 19 testifies that specimen hand writing vehicle Kinetic Challenger at the instance of accused no. 1 Rakesh. This chit W. 19 in presence of P. W. 6 Chandrashekhar Kapse as per

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 Exh-158 as Q-1, and chit at Exh-157 as N-1 and specimen handwriting of accused no. 1 as S-1 to S-6 and on examination of document, concluded that handwriting marked as Q-1 was in the handwriting of person who wrote N-1 and S-1 to S-6 and he filed his statements of

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S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

reasons vide Exh-355 on record. As such, the prosecution on the basis of analysis of Handwriting Expert Exh-392 claimed that Rakesh Khushwaha is the author of chit Exh-157 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 P. W. 6 Chandrashekhar

that admission on the part of the

Kapse alleged panch witness that chit Exh-157 was not seized in his presence, as he was not present in the room where from chit Exh-157 independent seized itself shows that seizure is not of panch witness. Not only this, P. W. 19 substantiated by the prosecution with corroboration Investigating Officer himself is not sure

from which place

exactly chit Exh-157 was recovered. At the same time variation in timings i. e. 11-30 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 MH-31-AR-9557. Thus, the seizure casts grave doubt over authenticity of the chit Exh-157. f] recovery is P. W. 6 has admitted that at the time of not voluntarily made . The recoveries at the

recovery, accused no. 1 was handcuffed which goes to show that 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

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 Exh-152 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 number 9371527820 that mobile 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 1. After no. going through the documents i. e. panchanama motorcycle bearing No. MH-31-AR-9557 were

Exh-140, it appears that chit having 7 mobile numbers vide Exh-157 and that seized at the same time. Panch witness of this seizure testified 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 kept it in

7 mobile numbers is prepared by anybody and

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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 Exh-157 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 Exhs-157, 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, cannot take a place of substantive evidence. E] Whether the prosecution proves the circumstance it

of Seizure of Motor Cycle bearing No. MH-31-BY-3725 Hero Honda Splender : (Circumstance incriminating against accused Nos. 2 and 10 ) a] It is the case of the prosecution that vide

Exh-156, Motor Cycle bearing No. MH-31-BY-3725 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

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 P.

said seizure panchanama vide Exh-156 has been proved by the prosecution through the testimony of Investigating Officer W. 19 Mr. Sawai, which has been corroborated testimony of panch learned Counsel witness by the

P. W. 6 Mr. Kapse. Whereas,

Shri Bhangade for the accused No. 10

submitted that alleged seizure panchanama Ex-156 is concocted document. Accused no. 10 has never disclosed such fact to the Investigating Officer prominently at the time of preparation of seizure panchanama Exh-156. 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.

164

S. T. No. 374 of 2008 & S. T. No. 84 of 2009 (J)

d]

I am of the view that

prosecution has vehicle in the

miserably failed to prove involvement of this

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 from the spot of incident vide seizure

of seizure of white coloured Dupatta (Exh-40 marked for D.N. Analysis) panchanama Exh-121 : (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 Exh-121. Panch witness P. W. 5 corroborated his version. P. W. 19 has also deposed b] about sending of this exhibit to Chemical Analyzer for D. N. Analysis. Pertinent to note here that, D. N. A. Report blood stain of Exh 222 analyzed this dupatta Exh-40 having D. N. A. profile of

Suresh does not match with DNA profile of blood on Exh-40. Rakesh, Jitnedra, Nandbabu, Shambhu, Sunil, Yogendra, Amit, Ankit and Chunbdh are not identical and

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. c] This circumstance could not be linked Expert vide Exh-222 with any of the accused in the commission of crime. The report of DNA further discloses that DNA profile of unknown person was

obtained from Sweat detected on Exh-40 Dupatta. As such, I hold prosecution has failed to prove the circumstance. G] Whether prosecution has proved the circumstance from the spot of incident vide seizure of seizure of Yellow coloured dupatta (Exh-41 marked for D.N. Analysis) panchanama Exh-121 : (Circumstance incriminating against all accused ) a] W. 19 The prosecution relied upon testimony of P. Mr. Sawai, Investigating Officer who testified about

seizure of this dupatta ( Gamache ) from the spot of incident vide Exh-121. Panch witness P. W. 5 corroborated his version. P. W. 19 has also deposed b] about sending of this exhibit to Chemical Analyzer for D. N. Analysis. Pertinent to note here that, D. N. A. Report Exh -222 analyzed this Dupatta Exh-41 having blood stain of Shailesh, which does not match with DNA profile of blood on Exh-41. 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

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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 accused No. 8 discussed in detail in paragraph circumstance against other accused including Chunubandh ( which is

relating to culpability of accused no. 8 Chunbandh ) . H] Whether prosecution has proved the circumstance of seizure of Yellow coloured Dupatta Exh-62 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 Exh-143, 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 Exh-144. 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 Exh-144 .

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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 DNA Rakesh

allegedly recovered at the instance of accused no. 4. detected on Exh-62 dupatta and DNA profile of

report of which shows its interpretation as DNA profile of sweat 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 .

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I]

Whether prosecution has proved the circumstance

of seizure of White coloured Dupatta Exh-63 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 Exh-145, they were taken to the rented house of accused no. 1 owned by Mr. Dubey and accused no. 3 Nandbabu recovered one coloured dupatta kept white under cupboard which was seized

under seizure panchanama Exh-146. 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 memorandum statement

no. 3 submitted that timings of

allegedly given by accused no. 3 for recovery of dupatta from the house of accused no. 1 kept under cupboard on 3-6-2008 is at about 15-05 hours and memorandum of accused no. 3 for recovery of dupatta from the house of accused no. 1 on

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03-06-2008 at about 15-35 hours and simultaneously bringing them to the house of Rakesh Khushwaha and recovery of said dupattas at the instance of accused no. 3 from 15-50 hours to 16-50 hours and for accused no. 4 from 16-55 to 17-50 hours suggest that said documents are prepared intentionally to any how connect the accused with the crime. d] It is to be noted that Exh-63 dupatta was DNA

allegedly recovered at the instance of accused no. 3 .

report of which shows its interpretation as DNA profile of sweat detected on Exh-63 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] for Whether prosecution has proved the circumstance DN Analysis ) from spot of incident vide seizure

of seizure of cap having name Gajju Exh 43 ( marked panchanama Exh - 121: (Circumstance against accused Nos. 1 and 7 ) a] seizure of The prosecution relied upon the testimony of cap . P. W. 6 Panch witness has corroborated his about sending of this

P. W. 19 Mr. Sawai, Investigating Officer, who testified about version . P. W. 19 has also deposed

exhibit to Chemical Analyzer for D. N. Analysis.

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b]

DNA Report Exh-222 has analyzed

that

mixed DNA profile of sweat detected on Exh-43 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 Report . K] Whether prosecution proves the circumstance of butts from the terrace of house of credibility of DNA

seizure of Cigarette Rajaram Gupta :

( Circumstance incriminating against all accused ) a] circumstance of Prosecution has tried to prove the

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 Exh-298 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

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DNA Report . 195] To ascertain the culpability of accused for above Exh-222. DNA Exh-222 REPORT : Prosecution relied upon

four circumstances, it is necessary to refer to D . N. A. report

Deoxyribonucleic Acid Test(D. N. A. Test ) report placed vide 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., Bio-Chemistry with specialization in Bio-Technology 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 Exh-222. C] According to DNA Expert, he interpreted on

the basis of analysis that DNA profile of blood detected on Exh-18 full shirt of Sushil , Exh-22 blood stain of Sushil, Exh-34 mobile hand set of Spice, Exh-38-B scrapping,

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Exh-39-A Three hundred Rupees currency notes, Exh-39-B one fifty Rupees currency note, Exh-62 Dupata, Exh-63 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] profile The DNA of blood detected on Ex-19-A full bush

shirt of Suresh, Exh-23 blood stain of Suresh, Exh-33 Bed sheet, Exh-40 Dupatta and Exh-64 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 Exh-2 one single barrel breech loading country made handgun, Exh-20C Sandow baniyan of Shailesh, Ex-32 Bed Sheet, Exh-41, dupata and blood of Shailesh Lakhotia of Forensic Science Limited, M. L. Case No. DNA 218/2008 are identical and from one and the paternal alleles in the same source of male origin DNA profiles match with the maternal and source of blood. DNA profile of Saliva detected on Exh-65B, Cigarette butt, Exh-65-D Cigarette butt, Exh-651 Cigarette butt, and Exh-65-M Cigarette butt and DNA profile of Jitendra @ Nandbabu Mourya are identical and from one and the same source of

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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. 65-F 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. 65-G cigarette butt and DNA profile of chunbad \@ Pradhan Baburam Kumhar are identical and from one and the same source of male origin DNA saliva. The DNA profile of sweat detected on Ex-41 profiles match with the maternal and paternal alleles in the source of

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

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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 Exh-63 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 Exh-63 ( Dupatta ) shows linkages of accused no. 3, and that of accused no. 1 and 7 as traces of Exh-43 (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 Polymerase Chain mainly attacked on the method adopted by him for analysis. Mr. Lade submitted that he carried out

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Reaction Method product on 3130 genetic analyzer instrument for getting DNA profiles. G] It is the contention of the learned Counsels method is not banned testified that of by for accused that use of PCR method for analysis is a defective . It is submitted that since PCR H] hence, I] P. W. 23 has suspicion about Competent Authority, it cannot be said to be unscientific. they were samples is supplied DNA Kit for unwarranted. Learned Counsels for the accused mainly convincing evidence brought on argued that there is no collection and preserving of samples, contamination

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 .

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K]

In the cross examination, P. W. 23 Expert

admitted that he obtained electro pharograms and submitted its report vide Exh-222. 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 non-match regardless of how many other loci match. L] P. W. 23 Mr. Lade further admitted that he To the question could not obtain result of 8 loci of Exh-43 Cap and also could not obtain result of 7 loci in Exh-62 Dupatta. loci in that since he could not obtain result of 8 loci in Exh-43 and 7 Exh-62 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. M] As such, this single aspect allegedly attaching P. W. 23 Expert also could not explain to the culpability of Rakesh Khushwaha remained unexplained. 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.

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N]

The way in which expert tried to prove his At first he clearly on record

interpretation , is necessary to be seen. permission of the Court he

admitted that his report Exh-222 is incorrect, but with produced 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 08-09-2011, P. W. 23 was cross examined submitted that he has no while answering the wherein he stated that on the basis of electropharograms he based his report Exh-222. He During further cross necessity to refer other documents except Electropharograms. examination 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 08-09-2011. 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 08-09-2011 when Expert testified about electropherogram for substantiating his interpretations for cross examination. Further he disclosed probability value was supplied by ABI Bio-system Company and was not calculated by him . These P. W. 23 Mr. Lade, Expert. turns creates suspicion about method of analysis and interpretations allegedly done by

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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 D-13s 317 was degraded. At the cost of repetition, it is submitted that the findings of some loci were not reported on page no. 25 Exh-372 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 Exh-372 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 electropharograms. 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 Exh-372, I find, under such circumstances each and every observation leading to his interpretation challenged by defence, needs no scrutiny. DNA Report Exh-222 is unscientific, thus unreliable. Scientific investigation falls

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short to lend support to case of prosecution. S] I find, prosecution has failed to prove articles viz. yellow coloured circumstance of seizure of

Exh-62 white coloured Duptta Exh-63 seized from the rented house of accused no. 1, and further circumstance of seizure of Cap Exh-43 from scene of occurrence and butts Exh-65 (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 Exh-222. As such, on the basis of Exh-222, 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 120-B 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 120-B 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 120-B of Indian Penal Code, as he conspired with other accused to achieve the object of conspiracy in commission of the dacoity.

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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] vide Exh-285. C] him. D] 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. Conspiracy consists in the agreement of two It is the statement of Sunil Sharma that Prosecution has proved recovery of Guns

Exhs 1, 2, and 3 at the instance of accused no. 2 Sunil Sharma

Rakesh Khushwaha @ Pappu has handed over these guns to

or more persons to do an unlawful act or to do a lawful act by

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F] 10 of

The basic principles which underlines Section 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] as under Agreement to criminal conspiracy This Hon'ble Apex court in the case of Sanju -Vs-

State of Kerala, reported in 2001 Supreme Court, 175 held

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 120-A, where it is provided when two or more persons agree to do or cause to be done . It is well settled

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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 120-A. 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

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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 28-05-2008 , which infers that these acts were done with their common intention. It suggests assailants have come together to the pursuit achieved it . K] In the light of language of 120-A, 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 Exh-394, 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 been brought on record, which would services has at least disclose of unlawful object and

location of shop, ownership or occupation of accused no. 1 on it. No document is placed on record to substantiate the claim

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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 1-00 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 120-A 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

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conspirator beyond reasonable doubt. C] So far as offence under Section 120-B 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 are sufficient to hold accused nos. 1 to 7 of sharing of thoughts through communications between accused nos. 1 to 7 guilty for the offence under Section 120-A of Indian Penal Code. Hence, I find prosecution has successfully proved ingredients

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of offence under Section 120-B of Indian Penal Code against accused nos. 1 to 7 beyond all reasonable doubt . F] prosecution has Section 397 From the aforesaid discussion, I conclude that successfully proved ingredients of offences

under Sections 120-A, Section 396 Section 395 read with 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] 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 Exh-222. B] It is necessary to scrutinize whether observations regarding Chunbandh made in Ex-222 is proved by P. W. 23 Mr. Lade, Expert . P. W. 23, Mr. Lade proved contents of Exh-222 and tried to prove his interpretation that DNA profile of sweat detected on Exh-41 Duptatta and DNA profile of Chunubandh are identical and from one and the leading to same source of male origin. DNA profile match with maternal and paternal alleles in the source of sweat Whether prosecution successfully proves guilt of accused no. 8 Chunbandh for the charges levelled

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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 cross-examination, P. W. 23 has admitted that at page no. 25 of Exh-372 (Electropherogram) findings of some locus have not been reported. In answer to the question that on page no. 25 Exh-372 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 D] Mr. Lade, one cannot deny that the interpretations of Exh-222 are vague and not conclusive. 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 Exh-65 (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 Exh-372, on the basis of which , he presented his interpretations vide Report Exh-222. Through Exh-372 Mr. Lade, Expert tried to substantiate his interpretation regarding Saliva detected on cigarettes butt of

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Exh-65 (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 Exh-372 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 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 filing of supplementary charge sheet, since which is said to be only piece of evidence leading to his accusation for DNA report Exh-222 is held to be unscientific, I have no other go to acquit proof of showing involvement of

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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 120-B, 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 120-B read with section 396, Section 120-B 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 120-B read with section 396, Section 120-B 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 for has proved the offence against accused Nos. 1 to 8

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

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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 and 10 proved the offence under Section 202 of Indian Penal Code against accused Nos. 9 Omprakash Gupta 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 As per the prosecution case on 05-06-2008 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, scrutiny one by one.

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271, 345, 270 have proved the communication of accused no. 9 Omprakash Gupta with accused no. 1 Rakesh Khushwaha during the span from 19-05-2008 to 26-05-2008 for 24 calls, and 33 calls vice versa, after commission of crime, further on 08-05-2008 on the day of incident Omprakash Gupta has made 5 calls to Shambhu and on the same day i. e. on 8-5-2008 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 Art-14 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 other D] accused persons, as reflects simultaneously from CDRS, with these has

communications with accused no. 1 Rakesh cannot be ignored. Accused no. 9 Omprakash Gupta 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 From the Investigating machinery in that regard by him.

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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 of Gaurishankar Shahu for the offence under Section 202 of

Indian Penal Code is concerned; Except hand-overing

motorcycle bearing No. MH-31-BY-3725, 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.

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201]

As to Point No. 7 : To prove the offence P. W. 19 Shri Sawai,

under Section 3/25 of Arms Act, the prosecution has to prove beyond reasonable doubt that Investigating Officer, in pursuant to the confessional statement of accused no. 2 Sunil Sharma vide Exh-284, 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 I hold accused no. 2 Sunil Sharma and ammunition. 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 120-B read with Section 396, Section 120-B 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

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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 120-B read with Section 396, Section 120-B 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. 3/25 of Prosecution also proved the offence under Section

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 Date : 06-02-2013 204] murder [ V. P. Ingle ], Additional Sessions Judge, Nagpur.

Heard, learned A. P. P. Shri Mendhe for the of Lakhotia Brothers in a broad day light, in a

State, who argued that accused have committed gruesome

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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 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 sentence anybody. Murders have been committed in spur of moment. Taking into consideration these facts, minimum 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, accused no. 9, taking into account gravity of crime.

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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 have committed case. In the commission of dacoity dacoits

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, convicted for the offence under Section Section 396 of Indian Penal Code, to suffer imprisonment for life and simple imprisonment for 1 ( one ) years . are hereby 120-B read with

as per the provisions of to pay a fine of Rs. to suffer

Section 235 of Criminal Procedure Code and they are sentenced 10,000/- ( Rs. Ten Thousand only ) each in default

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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 120-B convicted for the offence punishable under Section Code, as per the provisions of

read with Section 395 read with Section 397 of Indian Penal 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] Rajaram Gupta, The accused No. 9 Omprakash S/o.

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

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to pay fine of Rs. 500/- ( Rs. Five Hundred only ) in default to suffer S. I. for 05] head of 15 ( Fifteen ) days. All the respective sentences under each Code

the relevant Sections of the Indian Penal

regarding Accused Nos. 1 to 7 shall run concurrently. 06] The period of detention already undergone the respective term of

by the accused Nos. 1 to 7 and 9 during the investigation or trial shall be given set-off against 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 @ S. T. No. Pradhan

Baburam Kumhar ( Accused in

84 of 2009 ) is

hereby acquitted as per the provisions of Section 235 of Criminal Procedure Code of the offence under Sections 120-B read with Section 396, 120-B 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

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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] Code, The Accused Nos. 1 to 10 are hereby 201 of Indian Penal

acquitted from the charge under Section as per the provisions of Procedure Code. 11] is hereby

Section 235 of Criminal

The Accused No 10 Gaurishankar Shahu 202 of

acquitted from the charge under Section

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, be sent to learned Chief

pen drive, mobile phones and motorcycles bearing No. MH-31AR-9557 ( Kinetic Challenger ) Judicial Magistrate, Nagpur as per the provisions of Section 452 of Criminal Procedure Code for its disposal according Law.

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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. MH-31BY-3725 are already put in interim custody of them as registered owner of it supratnama bonds stand discharged. 17] was given to Motorcycle Hero Honda ( Splender ) Ambazari Police Station in Crime No. 130 of

bearing No. MH-31-BA-4060 seized during investigation which 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. MH-31-AV-4081 seized during investigation, be given to its registered owner,if claimed, on verification of documents. 19] and (ii) Copy of Operative Order of Judgment be

given to the Police Station Officers (i) Lakadganj Police Station Ambazari Police Station, Nagpur for compliance accordingly.

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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 13-02-2013 . Nagpur Date : 06-02-2013 Vibha P. Ingle ), Additional Sessions Judge, Nagpur