LEELAVATI NARAYAN BANGERA @ KOTIAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this Petition preferred under Article 226 of the Constitution of India, the petitioner has alleged that her son Purshottam Narayan Bangera @ Kotian, was not done to death in an encounter as alleged by the respondent No. 4 Police Inspector Pandharinath N. Ghuge in the F.I.R. of Crime No. 248 of 1998 of police station Bhayandar and in the return filed by the respondent No. 3 Ashok Kamte, Superintendent of Police Thane (West) but, was murdered in a cold -blooded manner after being brutally assaulted by the said respondents and others. She has urged that there has been a violation of the fundamental right provided by Article 21 of the Constitution of India which provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law and amongst the manifold prayers made by her, one is that a direction be issued by us appointing a retired Judge of this Court or Sessions Court or any other fit person to inquire into the matter and submit his report to this Court.

(2.) FROM the averments contained in the Writ Petition and the affidavits filed by Liladhar Kotian, Ronnie Gabriel Menezes, Bhavarlal Bhikamchand Jain and Mohd. Haji Ahmed Mithaiwalla in support thereof, it transpires : - The deceased Purshottam Narayan Bangera @ Kotian was the eldest son of the petitioner. Her husband and second son are no more. Her only surviving son is a student and has joined a course of Refrigeration and Air -conditioning at Borivali, Mumbai. The deceased was the only earning member and was maintaining the entire family. On account of his death, she is finding it very difficult to sustain herself and her family. At. the time of the incident, the deceased was working as an Estate Agent in Mumbai and was dealing in sale and purchase of real estate and properties. He was carrying on the said business along with his two partners Ronnie Gabriel Menezes and Bhavarlal Bhikamchand Jain and on or about 15 -5 -1997 had constituted a partnership firm with them. The Deed of Partnership was filed for registration before the Registrar. On 24 -4 -1998, a Memorandum of Understanding was arrived at between the deceased and the said two partners on one side and Mohd. Hanif Mithaiwalla on the other in respect of 1382 sq. mtrs. of land with some structures situated in Erangal village. The latter was to purchase from the former the said property for Rs. 65 lacs and issued a cheque of Rs. 51,000/ - in their favour. The said Memorandum stipulated that Mohd. Hanif Mithaiwalla would pay Rs. 1,49,000/ - to the deceased and others for making clear and marketable the title of the property and for meeting expenses. On 4 -6 -1998 at about 12 noon, the deceased and his partners visited the house of Mohd. Hanif Haji Ahmed Mithaiwalla at Mahim and received from him Rs. 75,000/ - in cash. The deceased executed a receipt in his own hand writing in the notebook of Mithaiwalla. He kept the said money in a plastic bag and thereafter along with the partners came to Malad where he told his partners that since he wanted to book a flat, he would keep the said amount and would go to Mira Road/ Bhayandar to find out whether any flat was available. He told them that they could take their share from the next instalment. At about 3 p.m. the same day, the deceased and his youngest brother left their Malad residence. The latter went to Borivali and the former with a plastic bag to Mira Road and Bhayandar. At that time, the petitioner was not at home. She had gone to her daughter's place at Gorai as she had recently delivered a child. At about 1 a.m. on the night of 5 -6 -1998 a telephone call was received at Mangalore Stores by its proprietor Mr. Kini and the caller who disclosed his name as Vijay informed that the deceased had met with an accident and was admitted in Civil Hospital, Thane. Mr. Kini passed on the said information to Ronnie Gabriel Menezes, a partner of the deceased, who along with Ashok Kanchan brother -in -law of the deceased went to the Civil Hospital, Thane, where they learnt from a constable that no case of accident had been admitted in the hospital. At about 6 p.m. the same day a dead body killed in police encounter was brought to Thane Hospital and when Ronnie Gabriel Menezes and relations of the deceased expressed their desire to see the same, the constable asked them to bring a letter from the Bhayandar Police Station. Consequently, Ronnie Gabriel Menezes along with relatives of the deceased went to Bhayandar police station where at about 9 p.m. the same day they met respondent No. 2 P. N. Niphade, Senior Inspector of Police, Bhayandar Police Station, Sr. P. I. Niphade after making inquiries from the relatives of the deceased showed them his photographs and the same were recognised by them and Ronnie Gabriel Menezes to be those of the deceased. They also informed Sr. P. I. Niphade that the deceased was wearing one gold chain with saibaba locket, one gold chain with gold taviz, one titan watch, one gold bracelet and three gold rings. Since the said articles had been on the person of the deceased, Sr. P. I. Niphade was satisfied that the persons who had come were the relatives of the deceased and consequently gave a letter to the Civil Surgeon, Thane, to show the corpse of the deceased to his relatives. The same night, the relatives of the deceased and Ronnie Gabriel Menezes proceeded to the Thane Hospital where they were shown the corpse of the deceased which they identified. At 1.30 a.m. on 6 -6 -1998 they claimed the corpse for performing the last rites of the deceased but it was not handed over to them. Thereafter, at 11 a.m. the, same day they went to Bhayandar Police Station where respondent No. 2 recorded the statement of brother of the deceased, brother -in -law of the deceased and Ronnie Gabriel Menezes. At about 5 p.m. he gave a memo for handing over the corpse of the deceased to his relations, who in turn received the corpse at 7 p.m. from Thane Civil Hospital and brought the same to the residence of Liladhar Kotian, the maternal uncle of the deceased at Bhayandar. They found that there were several injuries and bruises all over the body of the deceased. As the purification of the body was taking place, they could not wait and the same night, they performed the last rites of the deceased. 2A. The petitioner has alleged that thereafter she and her relations made several inquiries from Kashimira and Bhayandar Police Stations to know the circumstances in which the deceased was killed but, the officers of the said police stations refused to furnish any/information. The petitioner's relations through an Advocate approached the autopsy Surgeon Dr. R.M. Dhotre, respondent No. 5, but he also declined to give any information. It appears that in the meantime, the petitioner learnt about the alleged police encounter wherein the deceased was killed and through an Advocate approached Thane Court and obtained copy of the F. I. Rs. lodged in C.R. No. 247 of 1998 and 248 of 1998 of Bhayandar Police Station to which, we would advert to at length later on. On going through the said F.I.Rs. she concluded that her son Purshottam Narayan Bangera @ Kotian had not been killed in the manner set out in the F.I.R. of C.R. No. 248 of 1998 but was the victim of a cold blooded murder.

(3.) IN short, the allegation in this petition and the contention of the learned Counsel for the petitioner is that it is clear that the deceased was not done to death in the circumstances set out in the F.I.R. of C.R. No. 248 of 1998 and in the return of Mr. Ashok Karate but was first assaulted and thereafter killed.