VIJAY RAMCHANDRA THOPATE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both these Appeals arise from the order of conviction and sentence passed on 25th July, 2000 in Sessions Case No.526 of 1997. By the said order all the accused came to be acquittd under Section 120B of the I.P.C., and accused No.1-Arun Ananda Londhe, accused No.2-Vijay Ramchandra Thopate and accused No.6-Ganpat Bhikaji Bamane have been convicted for the offences punishable under Sections 143 and 147 of I.P.C., accused Nos.2 and 6 have been convicted for the offences punishable under Sections 144, 148 and 302 of I.P.C., accused No.6 has been convicted for the offence punishable under Section 307 of I.P.C., accused No.1 has been convicted for the offence punishable under Section 302 read with Section 34 of I.P.C. Accused Nos. 1 and 2 are convicted for the offence punishable under Section 307 read with Section 34 of I.P.C., accused Nos. 2 and 6 are convicted for the offence punishable under Section 27 of the Arms Act, accused No.1 is acquitted for the offence punishable under Section 27 of the Arms Act, accused Nos. 2 and 6 are also convicted for the offence punishable under Section 135 read with Section 37(1)(a) of the Bombay Police Act, accused Nos. 3, 5, 7,8 and 9 are acquitted for the offence punishable under section 302 read with Section 34 of I.P.C. They are further acquitted for the offence punishable under Section 307 read with Section 34 of the I.P.C., accused Nos. 1, 2, 5 and 8 are acquitted for the offence punishable under Section 25(1-B) (a) read with Section 3 of the Arms Act and the accused No.1 is acquitted for the offences punishable under Section 144, 148 and 302 of the I.P.C. and under Section 135 read with Section 37(1)(a) of the Bombay Police Act. Criminal Appeal No. 864 of 2000 has been filed by accused no.2 and accused no. 6 and both of them are in jail as at present. Whereas, Criminal Appeal No. 132 of 2001 has been filed by the State of Maharashtra against the acquittal of accused nos.5 and 8. During the pendency of these appeals, accused no. 5 - Raju Umakant Baje died and hence Criminal Appeal No.132 of 2001 has abated against him.

(2.) Dr.Dattatraya Narayan Samant, popularly known as Dr.Datta Samant and a well known Trade Union Leader was assassinated on 16th January, 1997 near his house, while he was traveling in his Tata Sumo Jeep and the complainant Shri Bhimrao Sonkamble, P.W.15 was the driver of the said jeep. As per the prosecution case Dr. Samant had a bungalow by name Sundar Narayan Niwas at Padmavati Road, I.I.T. Powai, Mumbai-76. At about 11.10 a.m. he came out of the bungalow, sat in the jeep bearing No.MH-03- H-2814 and proceeded towards his Pant Nagar office. When the jeep crossed the distance of about 300 meters from his bungalow the driver was constrained to stop the vehicle immediately as one person pulled the bicycle in the middle of the road and dropped it in front of the jeep. The said person took position by the road side and two other persons came near him on the left side of the jeep. There were two persons on the right side of the jeep and all these four persons had fire arms in their hands. The persons on the right side of the jeep fired the bullet shots first and followed by others. There was continuous firing by the assailants. When they stopped firing the complainant could see that Dr. Samant was lying injured on the rear side seat and the complainant had also sustained injuries. He got down from the vehicle and started running towards Dr. Samant's bungalow, but he fell down on the road because of giddiness. The driver was removed and taken to the Rajawadi hospital by the police, whereas Dr. Datta Samant was taken to Aniket Nursing Home in the same jeep by his son Bhushan Samant. The Nursing Home was owned by Dr. Prakash Samant. Dr. Samant was declared dead in Aniket Nursing Home by the attending doctors. The statement of the complainant was recorded by the police on 16th January, 1997and C.R. No.21 of 1997 came to be registered with Sakinaka Police Station against 4 unknown persons for the offences punishable under Sections 302, 307, 341 read with Section 34 of the I.P.C., and Sections 3, 25 and 27 of the Arms Act. The complainant's supplementary statement was recorded on 17th January, 1997. The Police Inspector Mr. Landge, Police Inspector Thakur and other officers of the Sakinaka Police Station visited the spot on the same day and drew spot panchnama at Exhibit 151. There were dry blood spots on the road and broken glass of window panes of the jeep and 8 empty cartridge of fire arms which were seized from the spot. Out of these 8 cartridges found on the spot, 3 were 9 m.m., and the remaining 5 were 7.65 m.m. Police also visited the bungalow by name Gautam Niwas near the spot of incident and recovered one bullet which had passed through an iron sheet and fallen on the ground. The spot panchnama was completed at about 16.10 hours. The Police also inspected the Tata Sumo jeep at Aniket Nursing Home and during the inspection they found that the left side window panes were broken and blood stains were also found on the flooring of the vehicle and four 9 m.m., empty cartridges were also recovered and seized from the said vehicle.

(3.) Inquest panchnama of the dead body was drawn at Aniket Nursing Home and in the presence of two panchas at Exhibit 140 and as many as 19 injuries were noticed on the dead body. The dead body was removed to J.J. Hospital for postmortem. The clothes of the complainant were seized by the police during the course of investigation under panchnama at Exhibit 205. The postmortem examination was conducted by Dr. Ashok Shinde (PW 6) of Police Hospital, Nagpada and before starting the postmortem he had taken out x-rays of the wounds. During the course of the postmortem he found 11 fire arms entry wounds and 6 fire arms exit wounds in addition to the other wounds found on the dead body and 4 bullets were retrieved from the dead body. One deformed lead piece and deformed copper piece was also retrieved from the dead body. Statement of witnesses came to be recorded by the Sakinaka Police officers and further investigation was handed over to the D.C.B., C.I.D., by the Commissioner of Police. Thereafter the investigation was taken over by Mr. T.R. Chavan (PW 68), Senior Police Officer. The blood samples as well as empties recovered from the spot and Tata Sumo jeep were sent to the Chemical Analyzer along with the blood stained cloths, bullets recovered from the dead body, deformed bullet cover and lead piece. The C.A. (Ballistic) of Forensic Science Laboratory report dated 12th February, 1997 ( Exh. 30) was received. Accused No.1 and Accused No.2 were apprehended at Kolhapur in room No.312 of Hotel Ayodhya situate at Kawala Naka, by the Kolhapur police and the said room was raided by Deputy S.P. Mr. Shinde (PW 8) along with two independent panchas and police party on 23/1/1997. Their personal search was taken in the presence of panchas and accused No.1 was found in possession of one 9 m.m. foreign made pistol and cash of Rs.800/-. Accused No.2 was found in possession of a German made 7.65 mm. automatic pistol and a cash of Rs.1210/-, a receipt of Hotel Ayodhya in the name of accused No.1 indicating payment of Rs.350/- to the said Hotel was also recovered from the beneath the pillow of one of the beds. All these articles were seized. During the forensic examination one 9 m.m. pistol empty was found below the mat near the driver's seat of the Tata Sumo jeep. One cuprojacketed bullet having rifling mark was found below the mat near rear seat and similar bullet was found in the rear side of the jeep. During the course of investigation accused No.5 and accused No.6 were taken in custody on 11/2/1997 from Hotel Welcome Inn, Ahmedabad by the Police Inspector Mr. Pawal and Senior Inspector Mr. Shinde from room No.202 of the said hotel located in Navrangpura, Ahmedabad City. The personal search of accused No.6 resulted in the recovery of cash of Rs.250/-, one identity card issued by the Indian Audit & Accounts Department and one railway ticket from Varanasi to Surat dated 7th February, 1997. The personal search of accused No.5 resulted in recovery of cash of Rs.83/-, one visiting card of hotel Welcome Inn and one visiting card of Girnar Lodge, Varanasi and one country made revolver having six chambers, loded with six rounds. All these articles along with one blue bag containing personal belongings of accused Nos. 5 and 6 were seized under panchnama at Exhibit 167. Both the accused were brought to Mumbai and the country made revolver and cartridges were re-sealed under the panchnama at Exhibit 244 dated 12th February, 1997 and they were put under arrest on the same day.