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.
4. While under arrest the accused No.6 volunteered to make statement and accordingly he lead to the house of accused No.8-Sanjay Baban Devkar situated on the main road of Airoli village. Accused No. 8 had produced one bag, one steel tank which contained the following articles:-
1. One 9 mm pistol having marking "TAURUS PT 99 AF 9 MM PARA. IT HAD ALSO MONOGRAM OF tarun brazil engraved on it. On eh other side of the pistol police found marking "TAURUS INT MFG. MIAMI FLA. MADE BRAZIL". It was found loaded with 8 (eight) live cartridges.
2. One pistol of foreign make.
3. One small card box containing 35 (thirty-five) 9 mm live cartridges.
4. One small card box containing 35 (thirty-five) 9 mm live cartridges.
5. 11 (eleven) loose 9 mm live cartridges.
6. One small plastic box containing 50 (fifty) rounds of .22 bore R.F. Long rifle.
7. 11 (eleven) live cartridges of 7.65 mm.
8. 13 (thirteen) live rounds of .38 bore. The fire arms and ammunition so recovered were sent to the ballistic expert and the report dated 3rd April, 1997 was received. The statement of witnesses were recorded after the incident and thereafter some of these witnesses had given description of the accused, who had fired bullets on the Tata Sumo vehicle of the deceased. Accused Nos.1, 2 and 6 were subjected to T.I. Parade at Arthur Road Prison and the parade was conducted by Shri Nagesh Sherigar, Special Executive Officer. As per the statement of these witnesses, five accused who had fired bullet shots had proceeded towards IIT, Powai from the Padmavati road in an auto rickshaw. It was also alleged that accused No.6 had fired a shot in the air to threaten the public. It was also claimed that accused No.6 before leaving the spot had chased the injured driver driver Bhimrao Gyanoba Sonkamble to eliminate him, but thereafter the accused came back and left the spot along with others. The statement of the rickshaw driver was also recorded and he participated in the T.I. Parade in which he identified accused Nos.1, 2 and 6. The investigation also revealed that accused No.6 had obtained one mobile telephone SIM card No.9821057075 from BPL and it was used for contacting other accused including the absconding accused No.4-Bharat Singh @ Bhagwantsingh Kuwar Singh Thakur @ Bharat Nepali. It was also revealed that accused No.4 was having a BPL mobile phone bearing SIM card No.98210817844 whereas accused No.1 was also having a mobile of the same company bearing SIM card No. 9821056688 and all these mobiles were used before, during and after the alleged incident by the accused for contacting each other. As per the prosecution accused Nos. 1, 2 and 6 and the wanted accused No.10-Vijay Chaudhary, accused No.11-Vikram @ Vicky had taken part in the actual opera]tion of firing on Dr.Datta Samant and the driver. As per the prosecution accused No.3 -Prakash Shanker Sawant had transported two weapons to Mumbai from Kolhapur which were later on seized from accused Nos. 1 and 2. Accused No.5 was one of the conspirators and accused Nos.7 and 9 were the persons who wanted to eliminate Dr. Datta Samant on account of Union rivalry in the factory of Premier Automobiles Limited. Accused Nos. 7 and 9 had entered into a conspiracy and wanted accused no.4 had taken active part in the said conspiracy by masterminding the whole operation to eliminate the deceased and he had received some amount from accused no. 7 for carrying out the operation. During the course of investigation, it was also revealed that accused no.5 had obtained a passport by posing himself to be Arun Londhe and it was intercepted at post office at Kolhapur and taken charge by PW 8 Shri Shinde, Dy. S.P. of Kolhapur and it was forwarded to the IO. One diary was seized from the house of the father of accused no.5 at Parel, Mumbai and it is alleged that the entries made in the said diary regarding the addresses and telephone numbers were in the hand writing of accused no.1 Arun Londhe. The specimen signatures of accused no. 1 along with his hand writing were sent for the opinion of the hand writing expert and Mr. Biradar PW 71 had submitted his report that the writing in the register of hotel Ayodhya, writing in the diary seized from the father of accused no.5 and the specimen of hand writing were by one and the same person. Similarly, specimen hand writing of accused no.5 was obtained by asking him to write "Arun Londhe" and the expert's opinion indicated that the signature on the passport i.e. "Arun Londhe" and the specimen hand writing so obtained were of the same person. Based on this, the prosecution alleged that accused no. 5 wanted to leave India under the fake passport. The prosecution further claimed that mobile No. 9821057075, which was with accused no.6, was obtained by him through his brother and the SIM CARD was handed over to his brother Chandrakant Bamane by Mr. Subramaniam of BPL for temporary use till the telephone was delivered to them officially. But the delivery challan of the said number was singed by accused no. 6 and he was working as a Record Keeper in the office of the Principal Director of Commercial Audit and Ex. Officio Member Audit Board-1, Mumbai-4. The hand writing expert has confirmed the hand writing of accused no. 6 on the delivery challan and the leave applications. Print out of the bills of mobile telephone allegedly used by accused no.6, accused no.4 and accused no. 7 and his two brothers for the relevant period were also collected during the course of investigation and it was revealed that there was frequent calls from and to the said mobile phone. The accused no.7 had also used the mobile phones of his two brothers. It was also claimed by the prosecution that an amount of Rs.1,00,000/- in two installments was paid to accused no. 4 by accused no. 7, through his brother and cousin, the first installment was paid at Kasturi Plaza Complex, Dombivali and the second installment was paid at Mamta Hotel, MIDC, Dombivali, but on the same day i.e. on 16.1.1997. It is further alleged that another amount of Rs.2,00,000/- was paid on 28/1/1997 at Garden Hotel, Panvel to the brother of accused no.4 Pushkarsingh.
5. Accused nos. 1 and 2 were arrested on 23/1/1997 at Kolhapur, accused no. 3 was arrested on 30/1/1997, accused no.4 was arrested on 11/2/1997, accused nos. 5 and 6 were arrested on 12/2/1997 after they were picked up from Ahemadabad, accused no. 7 was arrested on 13/2/1997 and accused nos. 8 and 9 were arrested on 17/2/1997 and 10/4/1997 respectively and accused nos. 10 to 16 were shown as wanted accused. On completion of the investigation, the charge-sheet was filed against accused nos.1 to 9 in the court of the learned Chief Metropolitan Magistrate, 19th Court, Explanade, Mubai and the case was committed, as being exclusively triable, to the Sessions Court. A separate charge-sheet came to be filed against wanted accused no. 12 but he was discharged on 12/10/1999. On the same day, charge was framed against accused nos.1 to 9 at Exh. 13. All the accused pleaded not guilty to the charges and claimed to be tried.
6. The prosecution examined in all 73 witnesses in support of its case and Mr. Bhushan Samant, the son of the deceased, was examined as a court witness after the prosecution examined its witnesses. The prosecution claims PW 12 Satish Ghade, PW 13 Mukund Gaikwad, PW 14 Sakharam Johe, PW 16 Ram Shankar Tiwari, PW 17 Habib Ghankar, PW 20 Zafarali Sayyed, PW 24 Ramsamuji Varma and PW 28 Rajendra Narkar as the eye witnesses in addition to the complainant Bhimrao Sonkamble PW 15. In the evidence of the court witness Bhushan Samant, it came on record that the deceased has three sons. He was staying with his elder son Dr. Prakash Samant and the youngest son Ganesh Samant, who is an engineer and staying at Sundernarayan Niwas and Bhushan Samant, the middle son, was not staying with him. The youngest son had his office in the nearby building known as Nilam Shopping Centre. Bhushan Samant was at Sundernarayan Niwas between 10.30 to 10.45 p.m. on 16/1/1997 and after he left the house by his jeep, Bhushan Samant went to Ganesh's office (Abhishek Enterprises) at about 11 a.m. and there he received a message that his father was shout at. He, therefore, rushed to the spot where the Tata Sumo jeep with Registration No. MH-03-2814 was standing. He found that his father was lying in an injured condition in the said jeep and the left side window glass of that vehicle was broken. He immediately asked driver Raju (another driver of his father), who had reached the spot in Maruti-1000 car to drive the jeep to Aniket Nursing Home. He stated that one gas cylinder and bicycle were lying in front of the Tata Sumo jeep and both these articles were removed by the persons who had gathered at the spot. They reached Aniket Nursing Home within 8 to 10 minutes and Dr. Datta Samant was immediately removed to the operation theater and was examined by Dr. Rajbhar, who declared his dead. Bhushan Samant, therefore, informed the news to his brothers as well as uncle and asked all of them to come to Aniket Nursing Home. Dr. Prakash Samant PW 65 was on duty at the Rajawadi Hospital at about 11.30 a.m. and he received the message that his father was shout at and he should reach Aniket Nursing Home. He reached Aniket Nursing Home at about 11.55 a.m. and saw that his father was already dead and Dr. Wagle and Dr. Rajbhar had attended to his father. The dead body of Dr. Datta Samant was removed to J.J. Hospital for post mortem and inquest panchanama at Exh.140 was drawn by the police before the post mortem.
7. As per Dr. Ashok Shinde PW 6, who was the Medical Officer at Police Hospital, Nagpada on the date of the incident, Dr. Datta Samant's dead body was received at 16.20 hrs. on 16/1/1997 and it was brought by Police Constable No. 23852 of Sakinaka Police Station when the said doctor was present. He conducted the post mortem between 4.25 p.m. to 6.35 p.m. and on the external examination, he found the following injuries :- (i) Fire arm wound of entry on the left side head laterally 4.0 c.m. above left eyebrow lateral and 7.0 cm. Above and front left external ear, 2.0 cm. X 1.6 cm. Oval, margins irregular, inverted, no tattooing/singeing of hair, blood stained brain matter visible. (ii) Abrasion red colour one cm. above and medially ext. injury No.one on left side head, laterally, 2.0 cm. X 1.4 cm. (iii) Abrasion red colour 2.0 cm. below ext. injury No.one 1.3 cm. X 1.1 cm.
(iv) Fire arm wound of entry on the right side neck below chine one cm. from midline, oval, 1.0 cm. X 0.8 cm. with guttering below and laterally 2.0 cm. length, inverted margins, No tattooing / singeing of hair.
(v) Fire arm wound of exit on the left side neck below chin two cm. from midline, 1.6 cm. X 1.4 cm. Inverted margins. (vi) Fire arm wound of entry on the right side chest from 3.2 cm. below right collar bone, 3.5 cm. from midline, 0.8 cm. diameter with 0.5 cm. semicircular abraded collar on lower and outer (lateral) aspect, inverted margins, No tattooing or singeing of hair, dried blood/clots within.
(vii) Fire arm wound of entry on the right side chest front 10.0 cm. from midline, 5.0 cm. below and laterally to right nipple, 0.8 cm. diameter with 0.1 cm. semicircular abraded collar on lower and medially, inverted margins, No tattooing or singeing of hair.
(viii) Fire arm wound of entry on the right side chest front, one cm. medial to right nipple, 0.8 cm. diameter with 0.1 cm. semicircular abraded collar on lower and laterally inverted margins, No tattooing/singeing of hairs.
(ix) Fire arm wound of entry on the right side chest front anterior arm-pit line, 2.9 cm. below and lateral to right nipple, 1.0 cm. below right axilla, 0.8 cm. diameter with 0.2 cm. semicircular abraded collar on the lower and outer aspect, inverted margins. No tattooing/singeing of hair, dried blood/clots within.
(x) Fire arm wound of entry on the right side chest from 13.5 cm. away from midline, 8.3 cm. below right nipple 0.8 cm. diameter with 0.2 cm. semicircular abraded collar on lower and outer aspect, inverted margins. No tattooing/singeing of hair, dried blood/clots within.
(xi) Fire arm wound of entry on the right side chest front 4.3 cm. below and lateral to external injury No. ten (10), 0.7 cm. diameter (0.7 cm. diameter) with 0.1 cm. abraded collar encircling, inverted margins. No tattooing or singeing of hair, dried blood/clots within.
(xii) Fire arm wound of entry on the abdomen front, epigastric area, left side, 0.5 cm. from midline, 1.6 cm. below xiphisternum (lower end of sternum), 0.7 cm. diameter with 0.5 cm. semicircular abraded collar on lower and laterally, inverted margins. No tattooing/singeing of hair.
(xiii) Fire arm wound of entry on left side abdomen front 7.0 cm. from midline, 3.2 cm. below left costal border, 0.8 cm. diameter with 0.2 cm. semicircular abraded collar on the upper aspect, inverted margins, No tattooing or singeing of hair. (xiv) Fire arm wound of entry on right side abdomen front, one cm. from midline, 5.5 cm. above umbilicus, 0.7 cm. diameter with 0.2 cm. semicirular abraded collar on upper and medial aspect, inverted margins. No tattooing or singeing of hair dried blood/clots within.
(xv) Fire arm wound of exit on left shoulder belt back, 9.1 cm. away from midline, 1.4 cm. x 1.3 cm. inverted margins.
(xvi) Fire arm wound of exist on left side chest back, 3.5 cm. below and lateral to ext. injury No.(15) fifteen 1.0 cm. x 0.9 cm. inverted margins.
(xvii) Fire arm wound of exit on left side chest back 8.0 cm. from midline, 11.0 cm. below neck thorax junction, 1.1 cm. x 1.0 cm. inverted margins.
(xviii) Fire arm wound of exit on left side chest back, 17.0 cm. from midline, 11.0 cm. below and lateral to external injury No. (17), seventeen, 1.4 cm. x 1.1 cm. inverted margins. (xix) Fire arm wound of exist on the left side chest back over left posterior axillary fold, 1.3 cm. x 1.0 cm. inverted margins. (xx) Contusion on left upper arm upper 1/3, back level of ext. injury No. (19) ninteen, red colour, 2.0 cm. x 1.0 cm. transverse (on post. Axillary fold of upper arm).
(xxi) Contusion on right elbow back, red colour, 1.4 cm. x 1.3 cm.
(xxii) Contusion on left elbow, back red colour, 1.2 cm. x 1.1 cm.
(xxiii) Abrasion red colour on right side chest back over scapula bond, 2.0 cm. x 1.4 cm.
On dissection of the dead body, he found following internal injuries corresponding to the above external injuries:-
(i) Perforated left side temporal scalp underneath with haemorrhage pinkish underneath, perforated left temporal muscle with pinkish haemorrhage in it, perforated left temporal bone 1.1. cm. x 1.0 cm. with radiating crack fractures to left temporal bone, left parietal bone, left side frontal bone, left temporal bone, to left middle crenial fossa outertable circular, innertable bevelled. Perforated meninges, perforated left temporal lobe of brain through and through with haemorrhage and laceration of brain tissue along passage of bullet with pinkish haemorrhage. Perforated left temporal meninges on base. Perforated left middle crenial fossa, 1.6 cm. x 1.4 cm. with crack radiating fractures to left middle crenial forssa to body of sphenoid bone to right middle crenial fossa. Also crack fractures to left and right anterior crenial fossa which passed behind palate to oral cavity. A deformed lead piece of bullet retrieved from left side neck muscles below mandible laterally with haematoma/haemorrhage around. A deformed copper jacket (copper piece) of bullet was retrieved from larynx. A deformed lead small piece from tracheal ring 3rd. Haemorrhage along passage of bullet.
(ii) Corresponding with external injury No.four (4):- Ext. Injury No.4 entry) Passes underneath muscles Exh.Injury No.5 exit ) only.
(iii) Corresponding with external injury No.six (6):- Perforated right side chest front skin and muscle underneath with haematoma underneath, perforated manibrum 1.0 cm. diameter with outertable circular, innertable bevelled. Injured (perforated left common carotid artery, left subsclayian artery with vein with nerves accompanying, passes neck muscles of left side with exit wound corresponding ext. injury No.(15) fifteen. Hemorrhage along passage of bullet.
(iv) Corresponding with external injury No. seven (7) :-
Perforated right side chest front skin and muscles underneath with haematoma underneath. Perforated 5th rib on right side chest front upper border with 4th IC space, perforated. Perforated right pleura, perforated right lung middle lobe, perforated right pleura, perforated pericardium, perforated right ventricle to left ventricle through and through, perforated pericardium, perforated left pleura, perforated lung upper lobe through and through, perforated left pleura, perforated and fractured 3rd rib left side chest back with exit wound corresponding ext. injury No. (17) seventeen. Haemorrhage along passage of bullet.
(v) Corresponding with ext. injury No.eight (8) :- Perforated right side chest front skin and muscles underneath with haematoma underneath. Perforated 4th rib upper border with 3rd intercostal space on right side chest front. Perforated right pleura, perforated right lung upper lobe through and through. Perforated and fractured 2nd thoracic vertibral body through and through. Perforated left pleura, perforated and fractured 1st rib on left side chest back with exit wound corresponding ext. injury No.sixteen. Haemorrhage along passage of bullet.
(vi) Corresponding with ext. injury No. Nine (9) :-
Perforated right side chest front skin and muscles underneath with haematoma underneath. Perforated 4th intercostal space on right side chest front. Perforated right pleura, perforated right lung, middle lobe through and through. Perforated right pleura, perforated superior venacava through and through and perforated ascending aorta through and through with pericardium. Perforated left pleura, perforated left lung upper lobe through and through. Perforated left pleura, perforated 2nd IC space on left side chest back laterally with exit wound which corresponds to ext. injury No.19. Haemorrhage along passage of bullet was found.
(vii) Corresponding with ext. injury No.ten (10) :- Perforated right side chest front skin and muscles underneath with haematoma underneath. Perforated 6th IC space with fractured 6th rib lower border. Perforated diaphragm, perforated right lobe of liver through and through. Perforated diaphragm, perforated pericardium. Perforated left ventricle posteriorly left pleura. Perforated pericardium. Perforated left pleura, perforated left lung, lower lobe through and through. Perforated left pleura, perforated 6 IC space with fractured 7th rib with exit wound corresponding ext. injury No. eighteen (18). Haemorrhage along passage of bullet.
(viii) Corresponding with ext. injury No.eleven (11): Perforated right side chest skin and muscles with haematoma underneath. Perforated 8th rib 0.8 cm. diameter with outertable circular inner table bevelled, perforated diaphragm. Perforated right lobe of liver through and through. Perforated diaphragm, perforated right pleura. A copper jacketed small lead bullet was retrived from 8th IC space right side chest back. Haemorrhage was found along the passage of the bullet.
(ix) Corresponding with ext. injury No.twelve (12) :- The injury No.12 was panetrating and passing through left side abdomen to right side abdomen front muscles to perforated diaphragm. Lacerated right lobe of liver diaphragmatic surface. Perforated diaphragm, perforated and fractured 5th rib of right side chest front, penetrated passes right side chest back muscles near right axilla with haemorrhage arround. Haemorrhage along passage of bullet. (x) Corresponding with ext. injury No. thirteen (13) :- Perforated left side abdomen front skin and muscles underneath with haematoma underneath. Perforated peritoneum, perforated jejunum coil 25.0 cm. from the duodenum, penetrating mesentry of jejunum 30 cm. from duodenum left side abdomen. A copper jacketed small lead bullet retrieved from mesentry of jejunum with haemorrhage arround.
(xi) Corresponding with ext. injury No. fourteen (14):- Penetrate right side front wall skin and muscles underneath. A copper jacketted lead small bullet retrieved from right side front wall muscles above peritoneum with haematoma arround.
8. All the injuries were ante mortem and on completion of the post mortem, he came to the conclusion that the death was due to fire arm injuries. All the fire arm injuries were fatal and were sufficient to cause death in the ordinary course of nature. He had retrieved four bullets and three fragments of bullets from the dead body. The bullet article 21 was retrieved from the small intestine. The bullet article 22 was retrieved from right side chest back muscle near right axilla. The bullet article 23 was retrieved from the right side abdomen front wall muscle. The bullet article 24 was retrieved from 8th intercostal space, right side chest back. He also retrieved the deformed copper piece at article 26, lead piece article 28, lead piece article 30 and he had forwarded the bullet pieces and lead pieces recovered from the dead body to the chemical analyzer. He also stated that before starting the post mortem examination, 13 x-rays of the injured parts of the dead body were taken by the Duty Medical Officer and he had signed the post mortem report at Exh.88 colly. In his cross-examination, he admitted that there were in all 11 bullet injuries on the person of the deceased and there were 11 entry wounds and 6 exit wounds. He also admitted that there were no corresponding exit wounds to entry wound nos. 1 and 11 to 14. The diameter of injury no.11 was 0.7 cm. and there were two other injuries with the same measurement (i.e. injury nos.12 and 14). There were in all six entry wounds of 0.8 cm. diameter. There was no entry wound on the back side of the dead body, whereas external injury nos. 4, 6 to 8 and 12 to 14 were on the front portion of the body. Injury No.1 was on the lateral portion of the left side. From injury Nos.4 and 5 it could be said that the bullet had entered from the right side and gone out from the left side of the neck. From injury nos.6 and 15 it could be said that the bullet had entered from the right side chest and gone out from the left side back. Injury No. 17 was caused by the bullet which entered from the right side chest. Injury Nos.8 and 16 were corresponding entry and exit injuries. Similarly, injury nos.12 to 14 were bullet entry injuries. Injury Nos.9 and 10 were corresponding entry and exit bullet injuries. This witness, therefore, proved that Dr. Datta Samant died on 16/1/1997 on account of fire arm injuries.
9. PW 4 Dr. Bipin Lal was the Medical Officer at Rajawadi Hospital on the date of the incident and he was on duty in the casualty department from 8 a.m. to 2 p.m. PW 15 Bhimrao Sonkamble was brought to the hospital by Police Constable Buckle No. 18209 and he examined the patient at 11.55 a.m. Patient had given the history of bullet injury and on his examination, he found the following injuries on the person of PW 15:-
(i) Bullet injury on left nape of neck (suspected entry wound) with haematoma.
(ii) Bullet injury on right maxilla.
(iii) Bullet injury at the junction of soft and hard palate. The patient was conscious when he was brought to the hospital. The pulse rate of the patient was 100 per minute and his blood pressure was 90 systolic. The necessary entries in the Casualty Medico Legal Register were made at Entry Sr. No.767 in his hand writing. In his cross-examination he admitted that there was no corresponding suspected exit wound and injury no.2 was a grazing wound. PW 5 Dr. Namita Choudhary was doing her M.S. (General Surgery) at Sion Hospital and was posted at Rajawadi Hospital for a period of six months. On the date of the incident she was attached to Surgical Ward under Dr. Mehandale, who treated PW 15 along with Dr.Shenoy. After PW 15 was admitted in the Surgical Ward at about 12.10 p.m. he was examined by Dr. Anjali Gwalani. The evidence of PW 4 Dr. Bipin Lal and PW 5 Dr. Namita Chaudhary has proved that PW 15 Bhimrao Sonkamble had sustained three bullet injuries.
10. Having regard to the evidence of PW 6 - Dr. Ashok Shinde and court witness Bhushan Samant, the son of deceased, it is not much in dispute that Dr. Datta Samant died of fire arm/bullet injuries on 16/1/1997. To prove that PW 15 Bhimrao Sonkamble sustained bullet injuries in the same incident that had taken place on 16/1/1997, the prosecution has relied upon the depositions of PW 15 Bhimrao Sonkamble, PW 4 Dr. Bipin Lal and PW 5 Dr,. Namita Chaudhary. PW 15 in his evidence stated that he was engaged as the driver of the deceased and while he was driving the Tata Sumo jeep with the deceased sitting rear side on 16/1/1997, just around 10.45 a.m. and after he came out of the house of the deceased and while on Padmavati Road, some unknown persons stopped the jeep and suddenly gun fire shots were heard. He did not support the prosecution case regarding the identity of the accused concerned, but at the same time he did not deny that the deceased was fired at and he himself also sustained bullet injuries. He also stated that he had become unconscious while in the driver seat after hearing the big noise and when he regained consciousness, he noticed that blood was oozing from his mouth and from behind his left ear. His clothes were soaked in blood and, therefore, he got down from the vehicle and started running towards the bungalow of the deceased. However, after running for a short distance, he fell down and became unconscious. He regained consciousness only in the Rajawadi Hospital. It would be, therefore, safe to hold that the prosecution has proved beyond doubt that PW 15 also received bullet injuries during the course when the deceased was shout at on 16/1/1997.
11. The oral depositions before the trial court of PW 23 Jyotiram Mane, Police Constable, PW 68 T.R. Chavan (IO) and PW 6 Dr. Ashok Shinde along with the C.A. reports at Exhs. 84 and 85 and PW 3 Dr. Sudhir Kamat, the prosecution has proved that the blood group of Dr. Datta Samant was "A", whereas the blood group of PW 15 Sonkamble was "B". Regarding the place of incident, the city survey office had drawn a map and it was placed by the prosecution at Exh. 124-A. In addition the defence counsel also got prepared a sketch of the spot of incident and it was placed before the trial court at Exh. 124. Both these documents have been admitted by each of the parties. Both these maps have shown the locations of Padmavati Road, Vasant Villa, Gautam Nivas, office of the son of Dr. Datta Samant i.e. Abhishek Enterprises, Mutton shop of PW 17 Habib Ghankar, Mahavir Electricals and Hardwear Store of PW 13 Mukund Gaikwad, the rickshaw stand opposite Mahavir Store, Pan shop of the father of PW 20 Zafarali Sayyed and these locations have not been disputed.
12. So far as the statements recorded under Section 313 of Cr. P.C. of accused nos.2, 6 and 8 are concerned, accused no. 6 Ganpat Bamane had admitted that he was working as a record keeper in the office of Principal Director of Commercial Audit and his leave applications used to be sanctioned by PW 70 Devnath Gaidhane. Accused Nos.2 and 6 have denied their presence on the spot of the incident. Accused No.6 denied that he was apprehended at Ahmedabad and similarly accused no.2 denied that he was arrested at Kolhapur. Accused No.8 denied the recovery of arms and ammunitions from his house.
13. PW 7 Shri Ashok Jadhav was a rickshaw driver and a resident of Kolhapur. He stated before the trial court that on 23/1/1997 at about 2.30 p.m. he had dropped one passenger at Police Headquarter, Kolhapur and while he was returning, he was called by a police constable along with another rickshaw driver and taken inside the police station and to the office of PW 8 Ashok Shinde, Deputy S.P., who informed them that they had to check one of the room at Ayodhya Hotel and their willingness was sought. They agreed to act as panchas. The police team along with these panch witnesses went to Hotel Ayodhya in two Tracks jeeps at 2.45 p.m. Mr. Shinde took the register from the hotel manager and found out that two passengers by name Arun Londhe (A-1) and Vijay Thopate (A-2) were staying in room no. 312 of the said hotel and thereafter the register was returned to the manager. PW 7 and Mohd. Gaus along with Mr. Shinde went to room no. 312 on the third floor when it was shown by the hotel manager Shri Bansode. Mr. Shinde rang the bell from outside and the door was opened by one of the passengers staying in the said room. Mr. Shinde introduced himself to both the occupants of the room and directed them not to move from the place. PW 7 identified accused no.1 as the person who had opened the door of the said room and accused no.2 as the person who was also present in the said room. The personal search of both the accused was carried out by the police and one pistol was found concealed by accused no.1 inside his trouser and below the shirt. The pistol was examined by Mr. Shinde and it was empty. The pistol was shown to the witnesses and the words found on it indicated that it was "made in Spain 9 mm". The cash amount of Rs.800/- was also recovered from accused no.1 from his right side trouser pocket. In the personal search of accused no.2, one pistol was recovered from his right side trouser pocket and there were no cartridges in the same. The words "made in W. German" were found in engraved on the said pistol along with the words "automatic". The cash amount of Rs.1210/- was also recovered from the person of the accused no.2. One receipt of Rs.350/- was also recovered from beneath the pillow and it was in the name of accused no.1. The two pistols and cash amount recovered by the police were sealed in the presence of the panchas after applying the labels. The signatures of the panchas were obtained along with the signature of Mr. Shinde and thus five packets were prepared by drawing a pachanama (Exh.90). Article 38 was the pistol recovered from the accused no.1 and Article 34 was the pistol recovered from accused no.2. Two small cash bundles were also shown to the witness before the court and he identified the same i.e. Articles 97 and 98, the hotel receipt was identified and marked as Article 99. He identified the panchanama at Exh. 96. He also admitted the register collected by Mr. Shinde from the hotel and produced before the court as Article 100. The raiding party left the hotel around 5 p.m. and went to the office of the DIG in an auto rickshaw. In his cross examination, he also admitted that he had not visited hotel Ayodhya before 23/1/1997. He also admitted that till the finding of hotel receipt beneath the pillow, the pistols Articles 34 and 38 and the cash amount were not sealed by the police. In his searching cross examination, there was nothing brought out to disbelieve the witness regarding the raid of the police party at room no.312 of hotel Ayodhya and the arrest of accused nos.1 and 2 along with recovery of pistols and cash amount as well as the hotel room receipt. The evidence of this panch witness read along with the evidence of PW 8 Ashok Shinde proved the arrest of accused nos.1 and 2 from hotel Ayodhya at Kolhapur on 23/1/1997 and the recovery of pistols Articles 34 and 38 along with the cash amount and hotel receipt in the name of accused no.1.
14. PW 25 Tarunkumar Barot was the Police Inspector, Crime Branch, Ahemadabad. He stated before the trial court that on 11/2/1997 two police officers, namely, Shri Shinde and Shri Pawal along with two police staff from Mumbai Police had visited his office and Shri Bhatia, DCP, had called him in his Chamber to meet these officers. The police officers from Mumbai had told the witness and Shri Bhatia that two accused connected with the murder of Dr. Datta Samant were staying in hotel Welcome Inn, Room No. 202. Therefore, at about 5 p.m., he along with his staff and the police personnel from Mumbai proceeded to hotel Welcome Inn which is situated at C.G. Road, Naurangpura, Ahemdabad and reached there at 5.45 p.m. After giving the identity to the Manager of the said hotel, the register of the hotel was checked and they went to second floor of the hotel with two waiters. On the bell-ring, somebody from inside asked, who it was and on being told that it was the waiter, Room No. 202 was opened. The person inside disclosed the name as Ganpat Bamane (Accused no.6) and the other person was Raju @ Dhedka Baje (Accused no.5). Police Officer Shri Pawal took personal search of accused no.6 and recovered cash of Rs.250/- along with the identify card from his pockets. One railway ticket from Varanasi to Surat was also found in the possession of accused no.6. When the personal search of accused no.5 was taken, one country made revolver was found in his right side pant pocket and Shri Pawal checked the said revolver which was loaded with six cartridges. Shri Pawal took out the cartridges from the revolver and handed the revolver and cartridges to the witness. Panchanama was drawn by Shri Shinde. The country made revolver had six chambers. A cash amount of Rs.83/- was found in possession of accused no.5 with two visiting cards, one of hotel Welcome Inn and the other of Girnar Hotel, Varanasi. The panchanama was conclued at 19.05 hrs. and accused nos.5 and 6 were taken in custody by the Mumbai police officers and they left along with the accused for Mumbai at 20.30 hrs. He made station diary entry at about 21.00 hrs. He identified revolver and cartridges before the court i.e. Article Nos.47 and 50 respectively. In his cross-examination, he admitted that he did not remember whether he had stated before the police that accused no. 6 had opened the door. He also admitted that his signature was not obtained on any other articles seized by the police from the possession of accused nos.5 and 6. He also admitted that accused nos.5 and 6 were not arrested from any hotel. At the same time he denied the suggestion that they were brought to the police office at Ahemedabad by the officers from Mumbai Police. He also denied that accused no. 5 was not found in possession of revolver. PW 36 Shri Shrirang Shinde was the Sub Inspector of Police, attached to the Nirmal Nagar Police Station at the relevant time. He stated before the court that the investigation team was headed by PI Pawal and he was one of the members of the said team. On 10/2/1997 at 10 p.m. he was informed by Shri Pawal that they were required to go to Ahemedabad for some confidential work on the next date early in the morning and accordingly two of them along with one police constable left to Ahemedabad by train on 11/2/1997 at about 4.30 a.m. They reached Ahemedabad at 3.30 p.m. and went to the office of Crime Branch of Ahemedabad Police and met DCP Shri Bhatia. At about 5 p.m. they left the Crime Branch office to go to hotel Welcome Inn by a private vehicle and they reached the hotel at about 5.45 p.m. He corroborated the evidence of PW 25 regarding the arrest of accused nos.5 and 6, the search and recovery of a pistol, ammunitions, cash, railway tickets and visiting cards. The evidence of these two witnesses read together clearly proved the prosecution case that accused nos.5 and 6 were taken in custody by the PI Shri Pawal and PW 36 from the hotel Welcome Inn with the help of PW 25 and were brought to Mumbai. Article 47 was recovered from accused no.5 along with six cartridges. The evidence of PW 25 and PW 36 has been corroborated by the evidence of PW 62 Shri Anilbhai Popatia.
15. Accused Nos.5 and 6 were brought by the police team to Mumbai on 12/2/1997 and subsequently shown arrested. As per the evidence of PW 11 - Pandurang Adhale, Police Inspector attached to DCB CID Mumbai at the relevant time, during the course of interrogation, accused no.6 volunteered to show the weapons on 17/2/1997 and, therefore, his statement was recorded in the presence of two panchas i.e. Bhagwan Popat and Mari Karamchand Bahuwa (PW 9) at about 2.40 p.m. Though PW 9 turned hostile, the evidence of PW 11 has proved the recovery of the following articles in the search of the house of accused no.8:-
1) Taurus Brazil pistol, made in Brazil, body No.TH 144760. The said pistol was found loaded with eight cartridges;
2) The eight cartridges were found marked with `9 mm KF 87';
3) One foreign made pistol;
4) One card board box containing 9 mm KF 87 live cartridges total 35;
5) Another similar box containing 35 live cartridges of 9 mm. They were bearing marks KF 87 and some of them were bearing marks KF 85;
6) 11 live cartridges 9 mm KF 87;
7) One plastic box containing 50 cartridges of .22; 8) 11 cartridges of 7.65 mm;
9) Another 13 live cartridges;
It was accused no.6 who had taken the police team to the house of accused no.8 and accused no. 8 had opened the door of the house and in his presence the search was taken. Accused no. 8 was taken in custody. Articles 54 and 57 were the pistols which were seized under the panchanama at Exh. 115-B and Article 60 were intact cartridges, in all 84 in number. There were other 89 cartridges of 9 mm size and 48 intact bullets were also recovered. Article 69 were 10 intact bullets, Article 64 were six intact bullets. The seized articles were handed over to PI Chavan. The evidence of this witness read with the evidence of PW 68 Shri Chavan, IO, has proved the recovery of the pistols and ammunitions from the house of accused no.8 and at the instance of accused no.6 on 17/2/1997, despite PW 9 Mari K. Bahuwa turned hostile.
16. T. I. Parade of the arrested accused was conducted by PW 66 Nagesh Sherigar (Special Executive Officer) and PW 72 Mohiddin Shaikh was a panch witness for the same. The evidence of both these witnesses read with the parade memo at Exh. 233 went to show that there was no procedural error in conducting the TI parade and accused nos.2, 6 and 8 were identified by the concerned witnesses. It is also pertinent to note that notwithstanding the evidence of these 2 witnesses, the concerned eye witnesses, in their depositions before the trial court, identified the accused concerned and we shall deal with the same subsequently. We have also noted that PW 66 did not support the prosecution case in identifying the names of accused nos.1, 2, 6 and 8 and he was not declared a hostile witness.
17. So far as the incident is concerned, PW 12 Satish Ghade deposed before the trial court that from the year 1994 to 1997 he was employed with Abhishekh Enterprises which belonged to Shri Ganesh Samant, a son of the deceased. He was on duty between 8.30 a.m. to 9 p.m. on 16/1/1997 and at about 10.15 a.m. Bhushan Samant, another son of the deceased, had visited Abhishekh Enterprises and directed him to bring tea. He further stated that at about 11 a.m. Umesh Shinde, the Supervisor also came and directed him to bring a new file from the shop situated in the same locality. While he was went to purchase the file, he saw some people running helter skelter on Padmavati Road. He had also seen the driver of the deceased i.e. PW 15 -Sonkamble running towards the bungalow of the deceased and one person was following him with a pistol in his hand. He had also seen that the clothes of the driver were soaked with blood. He, therefore, got frightened and immediately returned to the office and narrated the incident to Bhushan Samant. Bhushan Samant, therefore, rushed towards the Tata Sumo jeep which was standing on the road at the place of incident. He identified accused no.6 as the person who was following PW 15 on 16/1/1997 at the spot of the incident. The witness further stated that after one hour he came to know that Dr. Datta Samant was dead. He closed the office and went home and did not attend his duty on 17/1/1997 because the market was closed on account of the incident. On 18/1/1997, he was on duty and one police constable had come to his office and taken him to the police officer Mr. Chavan, who recorded his statement. He stated that he was taken to the Byculla Jail on 27/2/1997 at about 6.30 p.m. and the police officer had shown him 7-8 persons in the prison. He identified a tall person and in the court he identified him as accused no.6. In the searching cross-examination that this witness was subjected to, it was proved by the prosecution that the incident had taken place and PW 15 had sustained bullet injuries and he was chased by accused no.6. It was also proved that he had identified accused no.6 in the Byculla prison and in the court, as well, as the same person whom he had seen following PW 15 with a pistol in his hand.
18. PW 13 Mukund Gaikwad was working as a salesman on the date of the incident with Mahaivr Electrical and Hardware Store situated near the spot of incident and his duty hours were between 8.30 a.m. to 9.30 p.m. He knew the deceased because he was staying in the same locality i.e. Sunder Narayan Nivas. He stated before the trial court that Dr. Datta Samant was having a Tata Sumo jeep and he was killed on 16/1/1997 at about 11.15 a.m. He and his employer were present in the shop at the time of the incident and he had heard a sound like bursting of crackers and hence he came out of the shop. He saw that five persons were holding pistols in their hands and they were threatening the people and proceedings towards the rickshaw stand which is located at a distance of about 600 to 700 ft. from his shop. One of these persons fired a bullet in the air and three of them had boarded one rickshaw. In the rickshaw, one of these three persons put a pistol on the rickshaw driver's neck and asked him to proceed towards Gandhi Nagar. The remaining two persons also followed them in another rickshaw. People on Padmavati Road got frightened and the shop keepers downed their shutters. He had gone near Tiwari Dairy to find out as to what had happened and he came to know that Dr. Datta Samant had shout at and had sustained bullet injuries. After closing his shop, he went home, but after lunch he returned when he learnt that Dr. Datta Samant died. He stated before the court that he could identified three of the five persons he had seen on Padmavati Road and he pointed out towards accused no.1, accused no.2 and accused no.6 being the same persons whom he had seen at the time of the incident. He stated that accused no.6 had put his pistol on the neck of rickshaw driver and accused nos.1 and 2 had also boarded the same rickshaw on the date of the incident. Police had visited his shop on 22/1/1997 and his statement was recorded and he was taken to the Crime Branch situated at Crawford market. He was again called by the police on 28/2/1997 for identification parade at Aurthur Road Prison after he was intimated about the same on the earlier day. Accordingly, he reached the Aurthur Road Prison situated at Saat Rasta and police officer Shri Chavan met him out side the prison and allowed him to enter the prison. He was directed to sit in one of the rooms where there were about 14-16 persons. After some time, SEM met him and he was taken in the parade room by a panch. The SEM asked him to identify any one of the 12 persons standing in a row in the room and he had identified two of them i.e. accused no.1 and accused no.2. The SEM had asked accused nos.1 and 2 their names and written down on two separate chits, which were given to the witness. He was against called back in the second round when there were 6-7 persons in a row and in that he identified accused no.6. Thereafter he had left the prison. In his cross-examination, he stated that he was working with Mahavir Stores since June 1995 but he did not have any documentary proof to show that he was so working. The name of his employer was Rajesh but he did not know his full name and he did not narrate the incident to his employer. He admitted that till the police contacted him on 22/1/1997, he had not disclosed the incident to anybody as he did not feel it necessary. He was shown the map at Exh. 124. He admitted that the rickshaw stand was at a distance of 5 to 6 ft. from Mahavir Store on Padmavati Road and opposite the said store. He denied the suggestion that when the people started running helter skelter, the vegetable vendors had also joined them after the incident, but admitted that there were about 40 to 50 persons. He also stated that on Padmavati Road there were many shops, including Tiwari Tea stall and a country liquor bar. He also admitted that between the house of the deceased and his shop, there were about 10 to 15 shops and all shops were opened on the date of the incident. He reiterated in his cross-examination that he had seen the five persons who boarded two different rickshaw at a distance of 5 ft. from his shop and the were threatening the nearby persons. None of the members of the public attempted to apprehend the said five persons and he also did not attempt to do so. He also stated that he was the nearest person to see five persons but he did not get frighten and none of them had threatened him. He had noticed that the persons who had kept pistol on the neck of the driver of the rickshaw was having thick mustache and his nose was little fat. Whereas the second person who was sitting in the centre of the rear seat was having shrunken eyes and pimples on his face. The third person was of fair complexion and was having thin mustache. He stated that at the time of the identification parade, he had identified all these persons on the basis of the above stated peculiar description. He denied the suggestion that any police officer had given any chit to him on 22/1/1997. The evidence of this witness, as recorded before the trial court, supported the prosecution case that he had seen five assailants and he identified three of them i.e. accused nos.1, 2 and 6 in the TI parade on the basis of some special features of their personality. Though, he had not actually seen them firing at the deceased or PW 15, but at the same time he had seen them going to the rickshaw stand and at least one of them holding a pistol and who had fired the bullet in the air for scaring the people from the spot on Padmavati Road on 16/1/1997 and there was no material brought on record to suspect or doubt the testimony of this witness. In our opinion, he was a natural witness and happened to be near the spot of the incident on account of his employment.
19. PW 14 Sakharam Zohe was selling potatoes and onions from his shop near the rickshaw stand on Padmavati Road and his shop hours were between 9 a.m. to 11 p.m. He stated before the trial court that on the date of the incident, he was present in his shop and he knew Dr. Datta Samant. On the date of the incident at about 11.15 there was commotion on Padmavati Road and people had started running helter skelter. He had seen five assailants and one of them had fired a bullet in the air from his pistol. These five assailants were running towards rickshaw stand located near his shop and one of them fired a bullet on the ground near the place where he was standing. These five persons fled away in two rickshaws and three of them had boarded one rickshaw and the remaining followed in another rickshaw. On 18/1/1997 at about 4 p.m. two police constables visited his shop and he narrated them the incident. His statement was recorded in writing. He stated in his cross examination that during the identification parade he had identified accused no.6 whose name was Ganpat and he identified the same person in the court as well. He stated that he had seen his face and he had noticed that he had mustache. He stated in the cross-examination that the bullet fired on the ground was collected by him and handed over to the police.
20. PW 17 Habib Ghankar was running his mutton shop on Padmavati Road and his business hours were between 8 a.m. to 8 p.m. He knew Dr. Datta Samant as he was staying in the same locality. He stated that the incident had taken place on 16/1/1997 in front of Gautam Nivas at a distance of about 100 ft. from his shop around 11 a.m. He was standing outside his shop and seen one boy aged about 10-12 years carrying a gas cylinder on a bicycle and accompanied by a lady. While he was carrying the cylinder on the bicycle, it fell down on the road (Padmavati Road) and two persons came on the road and they picked up the cylinder, placed it on the carrier of the bicycle. Within about 2-3 minutes, when he was inside the shop, he heard the sound of bursting of crackers and heard commotion on the road. He, therefore, came out of his shop and found that the shop keepers were downing their shutters. He learnt that Dr. Datta Samant was shot at. On 27/2/1997 he was informed about the TI parade and accordingly he went to the Aurthur Road prison on 28/2/1997. He could not identify any of the accused in the first round. Again he was called in the second round when only 6-7 persons were standing in one row and he identified accused no. 6. He identified the said person in the court as well and as the same person who was tieing the cylinder on the bicycle stand at the spot of the incident. He denied the suggestion that the Tata Sumo jeep was on the spot till 4 to 5 p.m. on 16/1/1997. He stated that Dr. Datta Samant was taken to the hospital in the same jeep and it was driven by another driver of the deceased. He stated that the boy who was carrying the cylinder on his bicycle and the lady were never seen by him prior to the incident on Padmavati Road. He further stated that out of the two persons who were helping to put the cylinder on the bicycle carrier was tall (about 6 ft.) and the other person was short about 5 ft. 6 inches) and he had a causal glance of the said two persons.
21. PW 20 Zafarali Sayyed was another eye witness who was running his Pan shop on Padmavati Road and the Pan shop was located opposite the rickshaw stand. He knew Dr. Datta Samant. He had opened his Pan shop at 8 a.m. on the date of the incident and at about 11 a.m. he had gone to fetch water from Pawan Gupta Chawl. He heard the sound of firing when he was in the chawl and on his return to Padmavati Road, he saw that five persons holding pistols were going towards IIT junction and they were threatening the people and one of them had fired shot in the air. All the five persons had passed from his shop and he had also heard the sound of second shot for firing. He also stated that he had seen three of these five persons boarding one rickshaw and one of them had put his pistol on the neck of the rickshaw driver and directed him to drive away the rickshaw. In the second rickshaw, two other assailants boarded and left the spot. The rickshaws were seen going towards Gandhi Road. He had seen Dr. Datta Samant lying in white Tata Sumo jeep and was profusely bleeding. In his cross examination he stated that accused nos.1, 2 and 6 were amongst the five persons he had sen fleeing from the spot of incident and they had boarded the first rickshaw. He also stated that accused no.6 was the same person who had put his pistol on the neck of the driver of the rickshaw. He also stated that on 28/2/1997 he had visited the Byculla prison and participated in the TI parade. In the first round from about 12 persons he had identified accused nos.1 and 2. In the second round out of 7 8 persons standing in one row, he had identified one of them i.e. accused no.6. He admitted that he had not told anybody about the incident until his statement was recorded by the police. He stated that he had given description of three accused when his statement was recorded by the police and one of them was having pimples on his face. He denied the suggestions that he had not seen accused no.2 on the date of the incident and that he had not identified him in the TI parade. He stated that one of the accused was having pimple type marks on his face and the second one was of fair complexion with brownish mustache and brownish eyes, whereas the third one was having big face and the thick mustache and these were three persons who were sitting in first rickshaw. He denied the suggestion that he was shown photographs of accused nos.1, 2 and 6 in the office of DCB CID and that they were shown to him before the TI parade. He also denied the suggestion that description of accused nos.1, 2 and 6 was given to him by the police.
22. The next eye witness is P.W.24-Ramsamuj Kalidin Varma, a rickshaw driver. He stated before the trial Court that he owned rickshaw bearing registration No.MH-0-3J-6147. On 16th January, 1997 he got a passenger from Gandhi Nagar to Andheri and thereafter from Andheri to MIDC. He has reached Powai at about 10.30 to 10.45 a.m. and parked his rickshaw on the corner of Padmavati road and was waiting for passenger. Suddenly three persons sat in his rickshaw and threatened. They directed him to drive the rickshaw towards Kanjurmarg and one of them had put a weapon like revolver on his neck and other one had also put similar type of weapon on his back. When the rickshaw reached the junction of Gandhi Nagar he saw that police wireless van was standing beyond the junction and one of them directed him to take a turn on the left side. He proceeded to Kanjurmarg railway station and he was asked to slow down the rickshaw. All the three got down from the rickshaw when it was in a slow motion. He further stated that on 17th or 18th January, 1997 he read in a news paper about the assassination of Dr. Datta Samant and that the killers had fled away from the spot. He went to the crime branch on 20th January, 1997 and met the Police Officer Mr. Chavan. The rest of the evidence of this witness need not be considered as he declared hostile.
23. P.W.21-Ramdas Nathu Rathod has stated before the trial Court that on 16th Januar, 1997 he was on duty at Mobile Van No.3 of Sakinaka Police Station from 8.00 a.m. to 8.00 p.m., At about 11.00 a.m. he reached Sakinaka Police outpost and ACP Pawar, Inspector Thakur were present in the police outpost. Around that time one person had come to the police outpost and he informed the incident of firing taken place at Padmavati Road, Powai The policy party, therefore, rushed to the spot immediately in the vehicle of Inspector Thakur and the mobile police van. He saw one person was lying in injured condition at Padmavati road in front of Maharashtra Gas Agency and his clothes were socked in blood. The police party picked up the said person and removed him to Rajawadi Hospital in Mobile van (Maruti Gypsi). He was admitted in the said hospital for treatment.
24. P.W.33-Mohammed Siddique Shaikh Ahmed was a businessman and resident of IIT Market, Vrindavan Society, Powai. He was doing tailoring business and on 16th January, 1997 at about 2.30 p.m. he was passing through Padmavati Road, Powai. He was requested by the Police Officer to be witness to the Police panchanama (Exhibit 151). The spot of the incident was Padmavati Road, in front of Gautam Niwas and it was shown by one Pralhad. Another person by name Krishna was another witness. He stated that the police had collected blood stained soil from the spot, broken pieces of glass and cartridge cases. There were in all five big cartridge cases and three small cartridge cases. All these articles were seized by the police and his signatures were obtained on the labels and the labels were applied on those packets. One bullet mark was fond on the wall of Gautam Niwas. Blood stained earth and the plain earth were also found in front of L.D. Tailors which was at a distance of 250 ft. from the main spot and in the direction of Dr. Datta Samant's residential house. He identified the spot panchanama at Exhibit 151 to have been drawn in his presence and signed by him. He further stated that Article 2 collectively 5 empties, Article 3 collectively 3 empties and Article 7 metallic sheet which were seized from the spot by the police on 16th January, 1997. He identified his signature on Exhibits 152 to 155. In his cross examination he had stated that there was only one mutton shop in between Vrindavan society and Gautam Niwas on Padmavati Road and there was one chicken shop adjacent to the mutton shop. He further stated that Article 7 the mettalic piece was found on the road itself. He did not find any bullet in the wall of Gautam Niwas. He did not know whether there was any metallic piece lying below one of the windows of Gautam Niwas. He stated that the cartridge cases were collected by the police before he arrived on the scene.
25. The evidence of P.W.1 Shri Arutla Malleshwar Rao, who was the Assistant Chemical Analyzer at the relevant time is a material witness for the prosecution case. He stated before the trial Court that it was his duty to examine fire arms and ammunition and other articles received from the Police Stations in the crimes under investigation or trial and he had examined approximately 5000 fire arms during his entire tenure. He stated that on 20th January, 1997 he had received sixteen sealed envelopes from the Senior Inspector of Police, D.C.P., C.I.D. Unit No.3 and these envelopes were brought to the Forensic Laboratory by Police Sub Inspector Mr. D.M. Deshmukh along with a forwarding letter. He had examined the seals of the sixteen packets and found them to be in order. All the sixteen packets were opened and entries were taken in the B.L. Register. The Articles removed from the sealed packets were kept in the custody of the Deputy Director of Ballastic Department under lock and key. The envelope Exhibit C contained 8 empties, 5 were of 7.65 mm. pistol and the remaining 3 of 9 mm. pistol. (Exhibits 1A to 1E and Exhibit 1F to 1H). Envelope Exhibit F was containing 4 empties and they were of 9 mm. pistol empties and 3 of them were having the markings 87 KF and 4th one was having markings 91 KF. These empties were numbered as 2A to 2D. This witness further stated that Article Nos.Exhibit 1A to 1E were examined by him on 24th January, 1997 at his laboratory and they were fired from 7.61 pistol and from one and the same pistol. This conclusion was reached after the empties were examined microscopically and were compared. Articles at Exhibit 1F to 1H were also examined by him and the features of the firing pin impressions in addition to the breech face marks on the said empties tallied amognst themselves showing that they were fired from one and the same pistol. He identified all these empties shown to him before the Court (envelopes Article 4 and 5). As per the witness during the course of examination he found that the characteristics and features of the firing pin impression in addition to the breach face marks on the said empties tallied among themselves showing that they were fired from one and the same 9 mm pistol. He also stated that metalic lead sheet Article 7 and lead core Articel 8 were examined by him and he opined that Articel 8 was the deform lead core and it could be the result of rupture of 9 mm pistol bullet. The weight of the lead core was about 5.75 crams. After examination of Article 7 the the metalic sheet he opined that the dent on the sheet could have resulted due to impact of lead projectile. He had also opined that packet bearing Exhibit 4 one half bush shirt was taken out from the said packet which was examined by him. He had noticed nine encircled shot holes on the front portion of the shirt and six holes were there on the rear side. Copper was detected on the periphery of the shot holes. There was no blackening and the powder residue. As per him these figures indicate that the copper jacketed bullets were fired from beyond powder range of the weapon and for this opinion Copper test was done on the periphery of holes found on the shirt (Article 10). Packet at Exhibit 5 was also opened in the laboratory and one baniyan was taken out (Article 12). The said baniy6an was examined by him and he had noticed nine shot holes on the front side and six on the rear side of the baniyan. The copper was detected on the periphery of shot holes found on the baniyan. There was no blackening and powder residue which indicated that copper jected bullets were fired from beyond the powder range of the weapon. On 21st January, 1997 Police Inspector B.M. Deshmukh had brought seven sealed phials forwarded by the Police Surgeon, Mumbai. The witness had checked the seals and found them tallying with the copy of the impression of the seal on the forwarding letter and thereafter he opined that all the seven files in the Laboratory. The articles found in the files were as under:-
1. One cuprojacketed bullet having rifling marks Exh. 1
2. One cuprojacketed bullet having rifling marks Exh.2
3. One cuprojacketed bullet having rifling marks Exh. 3
4. One cuprojacketed bullet having rifling marks Exh. 4
5. One deformed cuprojacketed cover of bullet having rifling marks Exh. 5
6. One lead core piece - Exh. 6.
7. One lead piece Exh. 7.
After few days all these articles were examined by him in the laboratory and he concluded that Exhibits 1, 2, 3 and 4 were the fired 7.65 mm caliber pistol bullets. The other three packets bearing Nos. BL 54/97 and Exh. 2, 3 and 4 also contain cuprojacketed bullets having rifling marks. Article 26 was bullet cover which was examined by him and it was taken out from the file Article 25. Similarly, the lead core piece Article 28 was also examined and he concluded that the jacket cover Article 26, the lead core piece Article 28 and lead piece Article 30 could have resulted due to rupture fired 9 mm pistol bullet. He had received thirteen X-rays plates brought by the Senior Police Inspector of DCB, CID Unit-III, Mumbai and after examination of the said plates he came to the conclusion that opacities in 11 X-ray plates marked as 1A to 1K were consistent with the firing of 7.65 mm and 9 mm pistol bullets. No opacities were seen on the remaining two plates which were numbered as 1L and 1M in the Lab.
On 27th January, 1997 he has received two sealed parcels from the Senior Inspector of Police, DCB, CID, Unit II, Mumbai along with a forwarding letter. He had after verifying the seals opened the parcels and the entries were taken. The parcels were containing the following articles:-
1. Parcel No.1: One 7.65 mm pistol having markings 'made in West Germany, .32 cal. 7.65 automatic pistol'.
2. Parcel No.2: One 9 mm pistol having markings 'made in Spain Kal 9 mm No.3568. The first pistol was marked as Article 34 and the second pistol was marked as Article 38. Article 34 was examined by him on 28th January, 1997. He had taken the barrel washings of the pistol and examined the same. Residue of fired ammunition nitrite was detected in the barrel washings. It indicated that the weapon was used for firing before it was received in the lab. The weapon was in working condition. He further stated that the test firing was done from the same pistol. Cartridges were used for test firing. He also examined Article 38. Barrel washings were taken and it was found that there was residue of fire ammunition of nitrite in the barrel washings. 9 mm pistol cartridges were test fired successfully from Article 38. His opinion was also sought on the point whether the empties of the test fired bullets tallied with empties collected from the scene of the offence and, therefore, the empties article 2 collectively were compared with the empties of the test fired cartridges from 7.65 mm pistol (article 34). He had also test fired five cartridges from the pistol Article 34. As per him the characteristics firing pin impression on the test fired empties tallied with the breech face marks and firing pin impression on the empties article 2 collectively and they were compared under the microscope. After comparison of empties under comparison, he selected best position of two empties one each from two sets. Thereafter the photographer Shri V.P. Waghchaware, P.W.2 was called to take photographs of the two sets under comparison microscope. The witness further states that the empties article 3 collectively were tallied with test fired cartridges from 9 mm pistol Article 38. Article Nos. 21 to 24 the cuprojacketed bullets were compared with the bullets of test fired cartridges from Article 34. However, article 26 deformed bullet cover did not tally with the test fired bullets from the pistol article 38.
The Tata Sumo jeep was examined on 31st January, 1997 and during the examination one 9 mm empty and two cuprojacketed 9 mm pistol bullets were recovered from the said vehicle. One empty was recovered from beneath the driver's seat. One bullet was recovered from the mat near the left side rear seat and another bullet was recovered from the rear side of the jeep. The empty was marked as Article 43 and the bullets are marked as Articles 44 and 45. He also stated that on the left side below the window glass one hole was found on the jeep. Three shot holes on the left side back seat were seen and two shot holes one entry hole and another exit hole on the left front seat near the driver's seat were also noted. This opinion was formed by him because metalic copper was detected around the periphery of shot holes and there was no blackening and powder residue. Article 43 was was the 9 mm pistol cartridge case and Articles 44 and 45 were the fired 9 mm cuprojacketed pistol bullets. After comparison of Article 5 collectively and Article 43 he had come to the conclusion that they were fired from one and the same pistol. He had also compared the empties Article 3 collectively and concluded that they were fired from same pistol. The deformed bullet cover Article 26 and the two bullets Article 44 and 45 were also compared by him and it was found that they were tallying among themselves in respect of number and widths of lands and grooves and they were fired from one and the same 9 mm pistol. However, they did not tally with the test fired bullets from the pistol article 38. On 1st March, 1997 he had received eight sealed packets from the Senior Inspector of DCP, CID, Unit III, Mumbai and these packets were brought by API Mr. Shevale. On verifying the seals these packets were opened by him and necessary entries were taken in the BL Register. These packets were containing the following articles:-
a) One six chambered .38 revolver wrapped in paper Exhibit AA. b) Six intact .38" revolver cartridges having head stamp markings KF .380 REV wrapped in paper marked Exh.AB.
c) One 9 mm pistol having magazine having body No.THI 44760 and marking TAURUS PT 99 AF 9 mm para TAURUS INT MFG MIAMI FLA. MADE IN BRAZIL wrapped in paper marked Exh. AC.
d) One 7.62 mm pistol with magazine having markings .30" Bore wrapped in paper marked ExhAD.
e) Eighty nine (89) intact 9 mm pistol cartridge with different head stamp markings in two cardboard boxed and some are wrapped in paper and all of them wrapped in paper marked Exh.AE.
f) Six intact 7.65 mm pistol cartridges having head stamp markings KF 7.65 mm.
g) Two intact 7.65 mm pistol cartridges having head stamp markings SBP 7.65 mm.
h) Two intact 7.65 mm pistol cartridges having light indentation on the caps and head stamp markings KF 7.65 mm.
i) One intact 7.65 mm pistol cartridges having head stamp markings REM-UMC .32, 7.65 mm etc.
j) Thirteen intact 7.62 mm bottle ne3cked pistol cartridges in which six are having head stamp markings38/50, five are 21/RPR and two 270/.32 wrapped in paper marked Exh.AG.
K) Fifty intact .22" rimfire cartridges having head stamp markings E wrapped in paper marked as Exh. AH. He stated that out of the eight packets, he opened the first packet, which contained six chambered revolver (Article 47). The second packet contained four intact .38 revolver cartridges and another two were the test fired empties and bullets. Two cartridges were test fired from the revolver Article 47 and the intact bullets were Article 50 and empties were Article 51 collectively. Packet No.3 contained one 9 mm pistol Article 54, whereas the fourth packet contained one 7.62 mm pistol - Article 57. He verified Articles 47, 54 and 57 as the same weapons which were opened by him from the respective packets received from the police. The fifth packet contained, (a) eighty four intact 9 mm pistol cartridges, (b) five 9 mm empties and five cuprojacketed bullets (one of them was deformed ). He further stated that the five empties and five bullets were of the captive cartridges test fired in the lab from 9 mm pistol Article 54, whereas the 84 intact cartridges were marked Article 60, 5 empties were marked Article 61 and 5 bullets were marked as Article 62. The sixth packet contained 6 intact 7.65 mm pistol cartridges, five 7.65 mm empties and five 7.65 mm bullets. The five empties and bullets were of the cartridges test fired in the lab. Six intact cartridges Article 64, five empties Article 65 and five bullets Article 66. The seventh packet contained ten intact 7.62 mm cartridges, three empties and three bullets. Thirteen cartridges were received from the police and out of them three were test fired from 7.62 mm pistol -Article 57. The eighth packet contained 48 intact .22" rimfire cartridges, two empties and two bullets. Two cartridges were test fired in the lab. The witness further stated that Article 47 which was the six chambered revolver was kept in the cupboard after removing from the packet received from the police. It was examined by him in the lab and he had taken barrel washings of the said weapon and residue of fired ammunition nitrite was detected in the barrel washings. It indicated that it was used for firing before it was received in the lab. Similarly, Article 54 9 mm pistol, Article 57 7.62 mm pistol were also examined by him and barrel washings were taken. The residue of fired ammunition nitrite was detected in barrel washings and, therefore, he opined that both these weapons were used for firing before they were received in the lab. He further stated that Articles 50 and 51 collectively were the two empties and two bullets which were test fired from Article 47 and the said revolver was found to be in working condition. Articles 70 and 71 collectively were the parts of test fired cartridges from the revolver Article 57 and these three bullets were out of the intact bullets received by him and marked as Article 69 collectively in the court. Three cartridges were successfully test fired from the pistol Article 57 and it showed that it was in working condition. Three empties Article 3, four empties Article 5, one empty Article 43 and five empties Article 61 collectively were shown to him and he stated that they were compared by him under comparison microscope. The test indicated that Article 3 collectively, Article 5 collectively and Article 43 were fired from the pistol Article 54. He also stated that Articles 44 and 45 bullet tallied among themselves and they also tallied with the bullets Article 62 collectively in respect of the number and widths of lands and grooves, the direction and the extent of twist of rifling and the characteristic striations on the land and groove impressions. He, therefore, concluded that Articles 44 and 45 were fired from the pistol Article 54. He submitted his report at Exh. 57 along with the photographs taken by PW 2 - Vasant Waghchaware.
26. PW 1 was cross examined and nothing material was brought out by the defence to contradict his opinion on the condition of the weapons, bullets fired, comparison of empties and the tallying of empties with Articles 34 and 54. He explained in his cross-examination that as far as Articles 34 and 54 pistols were concerned, "beyond powder range" means "beyond the distance of one meter". He admitted that in the case of pistols, the cartridges on firing get divided into two parts, namely, bullet and empty. He also stated that on the basis of number of width of lands and grooves the particular bullet cannot be connected with the particular weapon. He also agreed that the direction and the extent of twist of rifling also cannot conclusively connect to a particular bullet to a particular weapon. He also agreed that what is important is the characteristic striations on the land and grooves impression and striations are longitudinal on every bullet. He also admitted that thickness of the striations of sample bullet and the test fired bullet must tally in order to come to the conclusion that both the bullets are fired from one and the same weapon. He also agreed that the distance between each striation on sample bullet and test fired bullet must also tally. He denied the suggestion that Article 3 Colly., Article 5 Colly. and Article 43 Colly. did not tally among themselves and with Article 61 Colly. He also denied the suggestion that Articles 26, 44, 45 and 62 did not tally among themselves. He also reiterated that the empties and bullets received from the police, police surgeon and found in Tata Sumo were either fired from Article 34 or from Article 54. When Article 10 the shirt worn by the deceased was shown to him, he pointed out that there were in all nine entry holes on the front portion and five exit holes on the rear side of the shirt. The 6th hole is entry hole which was on the middle portion of the rear side. He also clarified that back seat means the seat which was in the middle portion of the Sumo and the left back seat means the left portion of said seat near the left window. He also stated that he had found three shot holes on the left side back seat and these holes were on the resting portion. He admitted that on the basis of five exit holes found on the rear side of the shirt, he could not say as to which were the five corresponding entry holes on the front side of the shirt. Similarly, he could not correspond the holes found on the rear side of the shirt with the shot holes seen on the X-ray plates. He also stated that the distance between muzzles of the weapons and the victim was more than one meter, but he could not tell the exact distance. He also admitted that he could not exactly tell on which date a particular item was examined by him. He denied the suggestion that his report at Exh.40 was based on the bullets and cartridges already seen by him.
27. Though the prosecution claimed PWs 12, 13, 15, 17, 20 and 24 as its eye witnesses, PW 24 turned hostile and so was the case of PW 15. However, the entire evidence of PW 15 need not be discarded. If his evidence is read with the evidence of PW 21 Ramdas Rathod, PSI, PW 54 Sanjeev Thakur, PI and PW 68 T.R. Chavan, I.O., it is proved beyond doubt by the prosecution that PW 15 was a victim of bullet injuries in the incident and he was driving the Tata Sumo jeep. After sustaining the fire arm injuries, he came out of the jeep and started running towards the bungalow of the deceased and fell down at a distance of 5 mtrs. away from the jeep. He was lifted in unconscious condition and regained his consciousness at Rajawadi Hospital. His statement which came to be registered as an FIR (Exh. 195) was recorded at Rajawadi Hospital by PW
53. In the FIR PW 15 had mentioned only four assailants, whereas it was the case of the prosecution that there were in all five assailants. The defence had contended that this contradiction in the number of assailants would itself vitiate the case of the prosecution. PW 15 had stated before the trial court that he had seen one boy carrying gas cylinder on a bicycle and it had suddenly fallen down on the road and thereafter he had heard a big noise. He had also stated that the boy with the gas cylinder on bicycle had come in front of the Tata Sumo vehicle which PW 15 was driving and the gas cylinder had fallen suddenly on the road and in front of the car. The learned trial Judge has rightly discarded the same by considering the evidence on record. The trial Judge has considered the evidence of PWs 12, 13, 15 and 20 as reliable, in addition to the evidence of PW 6 Dr. Shinde and PW 1 Arutla Rao. The recovery of weapons from accused nos.1 and 2 in Ayodhya Hotel at Kolhapur and from accused no.5 from hotel Welcome Inn at Ahemedabad has also been proved, as noted earlier.
28. PW 6 Dr. Shinde, in his cross-examination had stated before the trial court that the diameter of injury no.11 was 0.7 cm. and there were two injuries of the same measurement which were recorded as external injury nos.12 and 14 in the PM report at Exh. 88 colly. There were in all six entry wounds of 0.8 cm. diameter and recorded as external injury nos.6 to 10 and 13. Measurement of external injury no.1 was 2.0 cm. x 1.6 cm. and the external injury no.4 measured 1 cm x 0.8 cm. The witness further pointed out that the measurement of external injury nos.11, 12 and 14 was the same and the measurement of external injury nos.6 to 10 and 13 was also same. But the measurement of external injury nos.1 and 4 was different from the measurement of the other two sets of injuries. It was contended by the defence to disbelieve the prosecution case that the deceased had suffered injuries from the bullets fired from the pistol Articles 34 and 54. The learned trial Judge rightly discarded the said arguments and held that it would be difficult to say that the injury sustained by the deceased were not of bullet fired from more than two weapons, unless of course, there was any other evidence.
29. Coming to the TI parade and, as noted earlier, it did not suffer from any procedural errors so as to vitiate it. Accused nos.1, 2 and 6 were identified by PWs 13 and 20 and all the three accused were strangers for both these witnesses. In addition, accused no. 6 was identified by PW 17 Habib Ghankar and PW 12 Satish Ghade who were also strangers. It is well settled that the identification of the accused by the concerned witnesses in the court is the substantive piece of evidence and the evidence in respect of the TI parade is a corroborative piece of evidence and it is of significance when the accused are not known to the witnesses. Accused Nos. 1, 2 and 6 were placed in the TI parade on the same day. Accused Nos.1 and 2 were apprehended at Kolhapur on 22/1/1997 and brought to Mumbai on 24/1/1997, whereas accused no.6 along with accused no.5 was apprehended at Ahemedabad on 11/2/1997 and was brought to Mumbai and arrested on 12/2/1997. The TI parade was held on 28/2/1997. Though there was a gap between 24/1/1997 and 28/2/1997 as well as between 12/2/1997 and 28/2/1997, that itself would not weaken the TI parade report. In para 348 of his judgment, the learned trial Judge has, for valid reasons, discarded that the delay caused in conducting the TI parade was properly explained by the prosecution.
30. PW 17 Habib Ghankar admitted before the trial court that his statement was recorded by police for the first time on 19/1/1997 though the police constable had visited his shop on 18/1/1997 between 4 to 5 p.m. Till the time his statement was recorded, he had not disclosed to anybody that he had seen two persons tieing gas cylinder on the carrier of the bicycle. It was submitted by the defence that this conduct of PW 17 was unnatural and more so when he was knowing the family of the deceased, he did not visit the residence of the deceased or contacted any of his sons to describe the incident. But it is pertinent to note that PW 17 in his cross examination had stated that when he went to TI parade, he remembered that one of the two persons he had seen was very tall and accused no.6 was the tallest amongst all the accused persons. It is true that PW 66 Nagesh Sherigar , who conducted the TI parade, did not support the prosecution case and he was not declared hostile by the learned Spl. P. P., the evidence of PW 72 - Mohiddin Shaikh, who was a witness to the TI parade, proved the TI parade panchanama at Exh. 233. Though, it was pointed out by the defence that accused no.6 was not a person with unusual height, both the appellants i.e. appellant no.1 (accused no.2) and appellant no.2 (accused no.6) were present before us and undoubtedly they have their own special features which could be remembered by an ordinary witness. Accused No. 6 is a tall person and accused no.2 had special facial features which could be said to be striking and, therefore, identification of accused no.2 by PWs 13 and 20 and identification of accused no.6 by PWs 12, 13, 17 and 20 could not be discarded. There is no hesitation to hold that the evidence of PWs 12, 13, 17 and 20 identifying accused nos.2 and 6 in the TI parade as well as before the trial court has been rightly relied upon and the arguments of the defence that these witnesses and more particularly PWs 12, 17 and 20 appeared most unnatural were discarded for just reasons. PW 12 - Satish Ghade could not be said to be an interested witness only because he was working in the office of the son of the deceased. The statement of this witness was recorded by the police at the earliest i.e. on 18/1/1997 and just because he did not come to the residence of the deceased after the incident to inform his family members, it could not be said that he was an unnatural witness and, therefore, unreliable. The evidence of PW 12 has been corroborated by court witness no.1 Bhushan Samant. From the depositions of this witness, it is clear that it was PW 12 who went to Abhishek Enterprises and informed the witness that he had seen the driver of the deceased in an injured condition running towards the bungalow. The court witness further stated that PW 12 was in a frightened condition when he gave the message and he immediately came down to see as to what had happened. He had seen driver Raju driving the Maruti car belonging to the witness's sister- in-law and he stopped the said car and in the same, he immediately rushed to the spot. The deceased was shifted to Aniket Nursing Home in the Tata Sumo jeep driven by Raju. The evidence of PW 12 that he had seen driver of the Tata Sumo jeep i.e. PW 15 in an injured condition running towards the bungalow of the deceased is corroborated by court witness No.1. The arguments advanced before us to discard the evidence of these witness do not have any force and we discard the same.
31. Now coming to the evidence of PW 13 Mukund Gaikwad is concerned, in his examination-in-chief, he had stated that the distance between the rickshaw stand and his shop was about 600 to 700 ft., but in his cross-examination he had stated that it was about 5 to 6 ft. However, the sketch map at Exh. 124-A clearly went to show that the distance between the rickshaw stand and his shop was about 50 to 60 ft. The statement of this witness was recorded on 22/1/1997 and this delay would not make his testimony unreliable, more so when accused nos.1 and 2 were apprehended at Kolhapur on 23/1/1997 and after they were brought to Mumbai on 24/1/1997 they were arrested. On the face of these facts, it could not be said that there was any mala fide intention of the police in recording the statement of this witness on 22/1/1997. We cannot also disregard the tendency of even educated people not to come forward to help the investigation in such an assassination case as they apprehend danger to their lives. PW 13 was a young boy of 21 years at the time of incident and it cannot be disputed that he could not be present in his shop on the date of the incident. The trial court was, therefore, right in treating him to be a natural witness. At the same time, the circumstances at the spot and at the time of the incident, supported the case that PW 13 had sufficient opportunity to look at the five assailants. Though he stated before the trial court that the said five assailants were threatening the members of the public, such a statement did not find place in his initial statement recorded by the police and this omission was not material so as to affect the prosecution case. He had not stated before the police that he had heard gun shots firing and that one of the said persons had fired one round in the air. In the examination-in- chief, he had stated that he had heard the sound like bursting of crackers and if the police had recorded it as a gun shot sound, he could not be labeled as a got up witness. The description of the three accused given by this witness in his cross-examination did not find place in his statement recorded by the police and the defence had claimed that this was a serious infirmity in the prosecution case. But the description given by this witness in para 14 of his depositions could not be said to be irreconcilable because there was no other description given in the police statement so as to discard the identity of a particular accused.
32. The next witness who has identified accused nos. 2 and 6 on the Padmavati Road during the incident was PW 20 Zafarali Sayyed. His testimony was challenged on the very same grounds as were raised to discard the testimony of PW 13, including the omissions and contradictions. The learned trial Judge has dealt with the same elaborately and held that there was no reason for PWs. 13 and 20 to give a false evidence. PW 13 was working as a salesman at Mahavir Electrical and Hardware Store located near the spot of the incident and there was nothing to suspect that this witness was obliging the prosecution. PW 20 Zafarali Sayyed was also a young boy looking after the shop of his father and located on the Padmavati Road. The trial court, therefore, in our opinion, rightly held that the evidence of PWs 13 and 20 inspired confidence and there were no good reasons to reject their evidence and that they had sufficient opportunity to see the assailants.
33. From the evidence of these eye witnesses it was also proved by the prosecution that the Tata Sumo jeep driven by PW 15 with the deceased sitting on the rear seat was intercepted by a bicycle and the gas cylinder and bicycle had fallen in front of the Tata Sumo jeep. This was also seen by the court witness no.1 after he had reached the spot. It could be, therefore, said that a gas cylinder and the bicycle were brought in front of the Tata Sumo jeep to obstruct it for performing the operation successfully i.e. the assassination of Dr. Datta Samant. It has also come in the evidence of the prosecution that accused no.6 had chased PW 15 and perhaps to eliminate him so that there could be no eye witness to the incident. But midway he stopped the chase, may be on account of the fear that he may be spotted by the people around and he fled away from the spot along with other four accused, including accused nos.1 and 2. We have noted earlier that the recovery of pistol Article 54 has been proved by the evidence of PW 11 - Pandurang Adhale and PW 68 Tejasingh Chavan, IO. The opinion of the Ballistic Expert PW 1 went to show that the cuprojacketed cover found in the body of the deceased was fired form Article 54. PW 1 had stated that the two bullets Articles 44 and 45 recovered from the Tata Sumo vehicle were also fired from the pistol -Article 54. This witness further stated that Article 3 colly. - three empties, Article 5 colly. - four empties and Article 43 one empty found in Tata Sumo vehicle were also fired from the pistol Article 54. PW 68 had categorically stated before the court that the place of concealment of the weapon was not disclosed to him by accused no.6 before the arrival of the panchas and he was not knowing the said place till the conclusion of panchanama at Exh. 115A which was a statement of accused no.6 made before the police and the panchas, while in custody. Though the accused no.6 was arrested on 12/2/1997 the recovery of Article 54 at the behest of accused no.6 and from the house of accused no.8 was made on 17/2/1997, this delay did not affect the prosecution case. We agree with the view taken by the trial court in this regard.
34. The evidence of PW 1, who was the Ballistic Expert, made the case of the prosecution full proof. He had examined all the fire arms and ammunitions recovered by the police during the course of investigation of the incident. The recovery of bullets from the dead body of the deceased and made by PW 6 could not be challenged seriously. The evidence of this witness clearly indicated that only two weapons have been used i.e. pistol Article 34 and pistol Article 54. Article 34 was recovered from the possession of accused no.2 at Kolhapur and Article 54 was recovered at the instance of accused no.6 and from the house of accused no. 8. The prosecution also proved that Article 38 was found in possession of accused no.1 and Article 47 was found in possession of accused no.5. The evidence of this witness proved that bullets Articles 21 to 24 tallied with the test fired bullets from the pistol Article 34 and five empties Article 2 colly. tallied with the test fired empties from pistol Article 34. Similarly, Article 43 one 9 mm empty found in Tata Sumo jeep, Article 5 colly. - four empties recovered during the panchanama of the vehicle and Article 3 colly. - three empties found on the spot were fired from pistol Article 54. This witness did not give just bald opinion to the effect that crime bullets and crime empties tallied with the test fired bullets and test fired empties. He clearly stated before the court that number of widths of lands and grooves, direction and extent of twist of rifling and characteristic striations on the land and grooves impression showed that the crime bullets were matching with the test fired bullets. With regard to the empties also this witness stated that they had tallied with regard tot he characteristic breech face mark and characteristic firing pin impression. The Expert's opinion was based on scientific reasons i.e. the science of identification of fire arms. The evidence of this witness also proved that three empties Article 2 colly. recovered from the spot were fired from the pistol Article 34. The prosecution has also proved beyond doubt that Articles 21 to 24 bullets retrieved from the dead body of the deceased were fired from the same pistol Article 34. The prosecution also proved, from the evidence of PW 1, that one 9 mm empty - Article 43 found in Tata Sumo vehicle, four 9 mm empties Article 5 colly. which were recovered during the course of panchanama of Tata Sumo jeep and three empties Article 3 coly. recovered from the spot were fired from the pistol Article 54. The prosecution has further proved beyond reasonable doubt on the basis of the evidence of PW 1 that the deformed cover retrieved from the dead body of the deceased, Articles 44 and 45 bullets recovered from Tata Sumo vehicle were fired from 9 mm pistol Article 54. The prosecution also proved that Article 45 one of the bullets recovered from the Tata Sumo vehicle was found stained with blood group "B", which was that of PW 15.
35. From the analysis of the evidence of PW 1 read with evidence of PWs 12, 13, 15, 17 and 20, it was established by the prosecution that the accused nos.1, 2 and 6 along with two others were present on the spot and they were holding weapons and accused nos.1, 2 and 6 were holding pistols in their hands. The said five assailants ran away from the spot in two rickshaws. Thus, it was proved beyond all reasonable doubts that accused nos.2 and 6 had fired bullets at the deceased and he died because of the said bullet injuries. Both of them i.e. accused nos.2 and 6 killed Dr. Datta Samant by firing bullets from pistol Article 34 and pistol Article 54.
36. Now coming to the fire arm injuries caused to PW 15 Sonkamble, the prosecution proved that he was driving Tata Sumo jeep with the deceased sitting behind and had left Sundar Narayan Niwas at about 11 a.m. on 16/1/1997. Though it was described as a back seat where the deceased was sitting, the prosecution proved that it was a middle seat. The incident had taken place in front of Gautam Niwas and Vasant Villa located on western and eastern side respectively of Padmavati Road. PW 15 had seen a gas cylinder in front of his vehicle and he had heard a big noise and it had fallen on the road while he was attempting to run towards the bungalow. The injuries sustained by him could have proved to be fatal but for his admission and subsequent treatment at the Rajawadi hospital. PW 12 had seen PW 15 in an injured condition and running towards the bungalow of the deceased. PW 17 had seen bicycle and gas cylinder in front of the Tata Sumo vehicle before the actual incident of firing had started. The evidence of PW 12 also proved that accused no. 6 had chased PW 15 and thereafter abandoned the idea and fled away from the spot along with the other assailants. The evidence of PW 14 has been corroborated by the evidence of PW 13 and PW 20 of having seen five persons fleeing from the spot in two auto rickshaws and three of the assailants have been identified by PW 13 and PW 20 as accused nos.1, 2 and 6. It has been further proved that 8 cartridges were recovered from the spot of incident, five of them were of 7.65 mm and the remaining three were of 9 mm. Four empties were recovered from the Tata Sumo jeep at the time of panchanama and one empty was recovered from the same vehicle when it was examined in the Forensic Science Laboratory. One cuprojacketed cover was recovered from the dead body of the deceased was of 9 mm. Four cuprojacketed bullets Articles 21 to 24 of 7.60 mm were also recovered from the dead body. Two cuprojacketed bullets of 9 mm i.e. Articles 44 and 45 were recovered from the Tata Sumo vehicle when it was examined in the Laboratory. As such the sequence of events proved by the prosecution clearly established that accused nos.2 and 6 had fired bullets during the incident and they caused the murder of Dr.Datta Samant and injuries to PW 15 and it was accused no.6 who had fired the bullets on PW 15. PW 6 Dr. Shinde had stated before the trial court that all the fire arm injuries were fatal and they were sufficient to cause death in ordinary course of nature. As far as Section 307 of IPC is concerned, what is important is the circumstances under which the offence was committed and not the nature of injuries, more particularly when the injuries were caused by fire arms. The fire arm injuries sustained by PW 15 were caused by accused no.6 and the bullet was fired from Article 54 pistol. If PW 15 had succumbed to the said injuries, accused no. 6 could be held guilty for the offence punishable under Section 302 of IPC and, therefore, he ought to be held guilty for the offence punishable under Section 307 of IPC as PW 15 survives. At the same time, the prosecution could not proved beyond reasonable doubts that accused no.2 had fired bullets on PW 15 and, therefore, the trial court was justified in holding that the offence punishable under Section 307 could not be proved against accused no.2 independently in so far as fire arm injury sustained by PW 15 is concerned. He has been convicted for the said offence with the assistance of Section 34 of IPC and in our opinion rightly so.
37. Now coming tot he offence punishable under Section 143 of IPC, the evidence of the prosecution proved that accused nos.2 and 6 were seen by the witnesses i.e. PWs 12, 13, 14, 17 and 20 and they were also identified before the court by some of them. The incident of firing and running away of accused nos.2 and 6 and three others from the spot proved that there was unlawful assembly and with a common object to commit the murder of Dr. Datta Samant. Since the presence of five persons is established and though two of them are not brought before the court, the trial court was right in holding accused nos.2 and 6 along with accused no.1 guilty of the offence punishable under Section 143 of IPC. The prosecution evidence also proved that accused nos.2 and 6 had used force and violence in the incident and, therefore, they were rightly held guilty for the offence punishable under Section 147 of IPC. Accused Nos.2 and 6 were found to be in possession of deadly weapons at the time of the incident and, therefore, the offence punishable under Section 148 of IPC was also held to be proved against them. These findings of the trial court are also required to be upheld.
38. Now coming to the acquittal of accused no.8, it is not the prosecution case that he was amongst the five persons who were involved in the incident on Padmavati road and, therefore, his physical presence at the spot of the incident was not claimed by the prosecution. The learned trial Judge held that there was no evidence on record to show that accused no. 8 had shared common intention with accused nos.2 and 6 to cause the murder of Dr. Datta Samant or to injure PW 15 in the said incident. Consequently, he was acquitted for the offence punishable under Section 302 read with Section 34 and Section 307 read with Section 34 as well as Sections 143, 147 and 148 of IPC. We do not find any fault in the said findings. At the same time, the recovery of arm and ammunitions from the house of accused no.8 and at the behest of accused no.6 has been proved by the evidence of PW 11 PI Adhale and PW 68 Shri Chavan, IO. Pistol i.e. Article 54 was arm which was recovered from the house of accused no. 8 and it was found to be in working condition and all the cartridges recovered from the house of accused no.8 were found to live as per the evidence of PW 1 Shri Arutla Rao. The possession of arm and ammunitions by accused no.8 in his house was in contravention of the provisions of Section 3 of the Arms Act. The trial court considered the scheme of Sections 184 and 220 (1) of Cr.P.C. and held that it had jurisdiction to try the offences punishable under Section 25(1-B)(a) of the Arms Act leveled against accused no.8. The trial court considered the evidence of PW 37 Nandkishor Naik, Police Constable No. 26205 and the notification in the Government gazette dated 6/1/1997 at Exh. 173 and the station diary entries at Exh. 171 and 172 and held that the provisions of Section 37(1) of the Bombay Police Act were properly followed and the said notification prohibiting carrying of arms was proved. Consequently, it held that accused nos.2 and 6 were carrying Articles 34 and 54 respectively in the Padmavati road area and in contravention of the order at Exh. 173 and, therefore, they have been rightly held to be guilty of the offence punishable under Section 135 read with Section 37(1)(a) of the Bombay Police Act. However, the trial court did not find such a case against accused no.8. It held that there was no case against accused no.8 to find him guilty for the offence punishable under Section 25(1-B) (a) of the Arms Act, even though the arm and ammunitions were recovered from the house of accused no. 8. We do not agree with this finding of the trial court. The sanction order passed by Deputy Commissioner PW 56 Vijaykumar Kamble would not really come to the assistance of accused no.8 so as to acquit him. When it has been so obviously proved that the pistol Article 54 along with the ammunitions was recovered from his house, whether his name was in the ration card or not or whether the arm and ammunitions were hidden by him by way of conspiracy along with accused no.6 are irrelevant considerations and in our considered opinion the evidence on record clearly proved that the charge under Section 25(1-B)(a) of the Arms Act was established against accused no.8 and we do not agree with his acquittal for the said charge.
39. The learned defence counsel Shri Pasbola appearing for accused no.8 urged before us that so long as there was no valid sanction granted under Section 39 of the Arms Act for the prosecution of accused no.8, there was no question of the said accused being punished for the offence punishable under Section 25(1-B)(a) of the said Act and in this regard he relied upon the decision in the case of Gunwantlal vs. The State of Madhya Pradesh [1972 SCC (Cri) 678]. The finding of the trial court that the order passed by PW 56 Vijaykumar Kamble for granting sanction was vitiated, has been arrived at only on the ground that there was no material placed on record and so as to hold that PW 56 was authorised to exercise the powers of the Commissioner to pass such an order . PW 56 has been examined before the court and he was cross examined. He was holding the post of Deputy Commissioner and undoubtedly the word "Commissioner of Police" also includes "Deputy Commissioner of Police" and any Commissioner of Police could exercise the powers of sanction under Section 39 of the Arms Act. PW 56 Vijaykumar Kamble had issued three sanction orders to prosecute accused nos.1, 2, 5 and 8 under Section 25(1-B)(a) of the Arms Act and they were placed before the trial court at Exhs.201 to 203. PW 37 Nandkishor Naik, Police Constable No. 26205 was examined to prove that the order under Section 37 of the Bombay Police Act issued by the Commissioner of Police was duly promulgated for the areas, including Padmavati road, on 3/1/1997. We are, therefore, satisfied that accused no. 8 was wrongly granted the benefit of lack of sanction and thus acquitted from the charge punishable under Section 25(1-B)(a) of the Arms Act and to that extent the case of the prosecution against accused no. 8 has been wrongly discarded by the trial court. Thus, the prosecution has made out a good case to hold that the trial court erred in acquitting accused no. 8 from the offence punishable under Section 25(1-B)(a) of the Arms Act.
40. Now coming to the sentence awarded to accused nos.2 and 6 by the trial court. We have noticed that the trial court has addressed to the obtaining circumstances, the nature of organized firing of bullet shots and with a pre-plan so as to use the cyclist and the gas cylinder and awarded the sentence. We do not find any fault with the view taken by the trial court in awarding the quantum of sentence against accused nos.2 and 6. No mitigating circumstances have been made out to reconsider the quantum of sentence so awarded.
So far as accused No. 8 is concerned, we have heard the learned Counsel for the accused on the point of sentence, and no special circumstances have been made out so as to award him the sentence of less than one year for the offence held to be proved against him under Section 25(1-B)(a) of the Arms Act. Under Section 25(1-B) of the Arms Act the minimum sentence shall not be less than one year of imprisonment and shall also be liable to fine, provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.
41. In the premises, Criminal Appeal No. 864 of 2000 fails and the same is hereby dismissed. The order of conviction and sentence passed by the trial court in Sessions Case No. 526 of 1997 against accused nos.2 and 6 is confirmed in its entirety. Both the accused shall be entitled for set off, if any, under Section 428 of Cr.P.C. Criminal Appeal No. 132 of 2001 filed by the State Government is partly allowed. The order of acquittal passed against accused no.8 for the offence punishable under Section 25(1-B)(a) of the Arms Act is hereby quashed and set aside and the accused No. 8 is held guilty for the said offence. He is sentenced to suffer RI for one year and to pay a fine of Rs.500/- in default to suffer further RI for one month. He will be entitled for set off under Section 428 of Cr.P.C., if so applicable. The bail granted to accused no.8 stands cancelled and he shall surrender to undergo the sentence forthwith.