(1.) These appeals filed under Section 374 of Criminal Procedure Code arise from the common judgment and order of conviction and sentence passed by the learned Additional Sessions Judge for Greater Mumbai, in Sessions Case Nos. 189 of 1998, 570 of 1998, 1393 of 1998, and 328 of 2000. In all 16 accused came to be tried and accused Nos.1 to 9 and 13 to 16 were charged under Sections 396 of the Indian Penal Code i.e. decoity with murder and accused No.11 was charged under Section 412 of the Indian Penal Code (in short, I.P.C. ) i.e. dishonestly receiving property stolen in the commission of a decoity by accused No.1 and accused No.12 was charged under Section 414 of the Indian Penal Code for voluntarily assisting the accused in disposing off the stolen property in decoity. Accused No.10 Balaram Shinde was also alleged to be a member of the decoity gang but though arrested, he subsequently absconded. Hence, the trial continued against the remaining 15 accused. Accused Nos.1, 2, 5, 6, 8, 9, 13 to 16 remained as under-trial prisoners, whereas the other accused were released on bail. By the impugned order, accused Nos.1, 2 and 3 have been convicted and sentenced for life and to pay a fine of Rs.2000/- for the offence punishable under Section 396 of I.P.C. Accused No.11 has been convicted and sentenced to suffer R.I. for five years and to pay a fine of Rs.30,000/- for the offence punishable under Section 412 of I.P.C., whereas accused No.12 has been convicted and sentenced to suffer R.I. for two years and to pay a fine of Rs.25,000/- for the offence punishable under Section 414 of I.P.C. Criminal Appeal No.592 of 2002 has been filed by accused No.11, Criminal Appeal No.647 of 2002 has been filed by accused No.12, Criminal Appeal No.908 of 2002 has been filed by accused No.2 and Criminal Appeal No.998 of 2002 has been filed by accused No.1. Convicted accused No.3 has not filed any appeal. Accused Nos.11 and 12 have been released on bail by this Court but other convicted accused i.e. accused Nos.1 to 3 are presently in jail. Accused Nos.1 and 2 are in jail right from 5.11.1997 uninterruptedly, whereas accused No.3 is in jail after his surrender consequent to the impugned order of conviction and sentence. Thus accused Nos.1 and 2 have by now completed an actual sentence of more than 13 years, whereas accused No.3 has completed an actual sentence of about 9 years.
(2.) As per the prosecution case, PW-3 Dattatray Maruti Thopte who was the Station House Officer at the Malad Police Station in the suburb of Mumbai City had received an anonymous telephone call around 2.20 a.m. on 4.11.1997 (fateful night between 3rd and 4th of November, 1997) stating that three persons were lying with bleeding injuries in the compound of Pawanbaug Housing Society, Chincholi Phatak and near its gate. After recording the said message in the station diary he informed it to PW-19 Shri Katakdaund, Police Inspector and proceeded to the spot immediately for further enquiry. On reaching the spot he found the news to be correct and three persons were lying near the main entrance gate of Pawanbaug Housing Society in a pool of blood and a motorcycle was also lying at the site. PW-3 identified two police constables Ravindra Savant and Anant Arjun Kalal, who were on patrol duty on the same night as the injured and the third one was the watchman of the Pawanbaug Housing Society by name Ravindra Dubey. Within a short span of time, a mobile van of Malad Police Station reached the spot and all the three injured were shifted to Bhagwati Hospital. By then a crowd had gathered at the spot and PW-1 Vishvanathan Pille, an occupant of the ground floor flat assisted PW-3, who, in the local enquiry found that Flat No.303/304 on the third floor of building No.9 of the said Society was burgled. PW-3 suspected that the commission of house breaking and looting of valuables from the said flat must be by a gang of decoits. PW-19 Katakdaund, Police Inspector also reached the spot. In the meantime, a wireless message was received from Bhagwati Hospital that all the three victims taken in the police mobile van were declared dead before admission. PW-19 Katakdaund therefore recorded the statement of PW-3 Dattatray Thopte and C.R.No.539 of 1997 for the offences punishable under Sections 396 and 357 of I.P.C. came to be registered against unknown persons on the basis of the said complaint.
(3.) The dead bodies of all the three victims were sent for postmortem after preparing the inquest panchnama at Exh. 57. Dog squad and finger print experts were also called and PW-19 Katakdaund undertook the investigation. At the same time, PW-20 Arun Vitthalrao Wable, who was the night duty police inspector at Santacruz Police Station flashed the incident and red alert was given to all the police stations. He received a wireless message by about 4.00 a.m. that the decoits were suspected to be from the Phasepardhi community. The statement of PW-6 Chandrabahadur Chudabahadurrao, who was the watchman of the neighbouring industrial unit i.e. Shripal Industries was recorded by PW-19 immediately after the incident. Postmortem was performed on the dead bodies by PW-15 Dr.Vithal Hasha Vihurkar on 4.11.1997 and it was revealed that all the three persons died on account of head injuries at one and the same time. PW-1 Vishwanathan Narayan Pille led the police team to Flat No.303/304 on the third floor of building No.9 and it was noted that the occupants Jain family were out of station and an urgent message was given to them. The tube-lights in the flat were found switched on, two steel cupboards were found broken, clothes and jewellery boxes were were ransacked and panchnama at Exh.20 was drawn of the conditions of the flat. The Jain family reached Mumbai on 5.11.1997. As per PW-6, he had seen a gang of 15 to 16 persons coming from Pawanbaug Society and armed with sticks and iron bars and running away around 2.00 a.m. but he had not seen the actual incident in which three victims were killed in the compound of Pawanbaug Housing Society, past midnight of 3rd April, 1997.