KANWARDEEPSINGH HARBANSINGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This criminal appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, arises from the order of conviction and sentence passed in Sessions Case No. 79 of 1986 on 15/1/1988 by the learned Additional Sessions Judge - Sessions Court, Mumbai, thereby convicting the appellant for the offences punishable under Sections 302 and 381 of I.P.C. for causing the murder of two of his colleagues i.e. Omprakash Dubey - Midshipman and Hanumansingh Rathod - Seaman on 24/11/1985 at about 11.30 a.m. while on board INS Ranjit. He has been sentenced to suffer life imprisonment for the offence punishable under Section 302 and RI for five years for the offence punishable under Section 381 of I.P.C. The appellant was on bail during trial and he continued to be on bail during the pendency of this appeal as well. Thus, during the last more than 24 years he has been on bail and this appeal for some or the other reasons remained pending before this Court for more than 21 years, though it arises from the double murder of young sailors at the hands of one of their own colleagues.

(2.) The prosecution case unfolds thus, From 20/11/1985 onwards the Naval exercises were in progress and INS Ranjit had also participated in these exercises. On 24/11/1985 INS Ranjit was harboured at the Mumbai Port and the accused as well as both the deceased were part of the Naval pool of INS Ranjit during this exercise called "Barracuda II". The said operation was terminated on 24/11/1985 at about 11.15 a.m. or so and at that time Lt. Commander Dhamdhere - PW 1 was the Commanding Officer of the Ship as both his seniors were not present on the Ship. The Commanding Officer along with the accused, deceased Omprakash Dubey, Lt. Nikula, Lt. Commander Palsule and 2-3 other officers was having tea in the ward room of INS Ranjit between 11 a.m. to 11.15 a.m. and during this time, the Commanding Officer received a message that the exercise was terminated and this message was received by him from the Duty Signal Man. The Commanding Officer, therefore, instructed Omprakash Dubey (D1 for short) to call all the sentries so that he could go and muster them. On board there were about eight midshipmen, six sentries and all of them were provided with 9 mm carbine (pistols) along with the magazines. Each sentry used to be on duty for four hours by rotation and they used to exchange the weapons on change of duty. The accused also left the ward room as soon as Omprakash Dubey left from there. At about 11.30 a.m. or so the Duty Officer Dhamdhere left the ward room along with Nikula to go to the gangway to muster the sentries and as he was walking towards the gangway, the first thing which he saw was that the accused was holding a 9 mm carbine against the head of Midshipman Omprakash and fired a burst. Midshipman Ravi Shankaran - PW 9 who was proceeding towards the gangway and a little ahead of Dhamdhere turned back, pushed him and ran towards the ward room. Dhamdhere saw seaman Hanumansingh (deceased No. 2) very close to Omprakash and both of them had fallen on the ground at the same time because of the bullet fired by the accused. Hanumansingh (D2) was Duty Quarter Master and was supposed to be a sentry at the entrance of the gang way and there was another Quarter Master by name Vijayan - PW 8 and was hiding himself behind the desk which was just next to the gangway and few steps away from D2 and D1. Dhamdhere took two steps towards the accused and shouted at him. The accused went on saying, "no Sir, no Sir" and lowered the weapon, which was in his hands, upto his waist. After about a minute or so, the accused dropped the weapon on some hesitations. Dhamdhere told Vijayan, who was hiding from the desk on the other side of the rope, to grab the weapon, which the accused had dropped and run away. Vijayan did accordingly and immediately thereafter Vijayan ran with the weapon to the left side of the shipway from the gangway. At this stage, the accused also ran away out of the ship and started running on the Jetty. Dhamdhere was chasing him by shouting "pakdo pakdo", but the accused jumped into the sea in front of INS Udaigiri (another ship). But the divers of INS Udaigiri caught hold of the accused in the sea and brought him to INS Udaigiri. In the meantime, D1 and D2 were taken to the hospital (INHS Ashwini) by Midshipman Sur - PW 4 and Midshipman Pokhriyal. Dhamdhere informed about the incident to the Commanding Officer and the Naval Police, who reached the scene within 15 to 20 minutes and the City Police also came within one hour. The 9 mm carbine picked up by Vijayan - PW 8 from the scene of offence was kept back at the same place when the City Police arrived at the scene. It was noticed that the carbine had fired three bullets and three empty shells were found at the scene of offence. The accused came to be arrested by the City Police from INS Udaigiri at about 4.30 p.m. and before that the statement of Ravi Shankaran - PW 9 was recorded by PI Mitake - PW 15 on INS Ranjit and the same was treated as the F.I.R. (Exh.55). In the hospital both the victims were declared dead and Dr. Khade - PW 10 conducted the autopsy of both the dead bodies (Exh.63 and Exh.59). Undoubtedly, both of them died because of the gun fire injuries on the head. Investigation was completed by the I.O. i.e. Mitake - PW 15 and PI Garkal - PW 20. The accused was presented before the Metropolitan Magistrate on 25/11/1985 and was granted police custody. On 8/1/1986 the accused was remanded to judicial custody. The charge-sheet came to be filed on 18/1/1986, after receiving the reports from Forensic Laboratory as well as the Ballistic Expert.

(3.) Charge (Exh.8) was framed by the Sessions Court on 12/6/1987 and the following issues were framed for determination: