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CASE NO.: Appeal (crl.) 1230  of  1998

PETITIONER: BABU KUTTAN R.PILLAI & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       15/12/2000

BENCH: S.S.M.Quadri, D.P.Mohapatro

JUDGMENT:

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     J U D G M E N T

     D.P.  MOHAPATRA,J

     This  appeal,  filed  by   accused  no.1  Babu  Kuttan Ramkrishna  Pillai and accused no.2 Umesh @ Babu  Purshottam Bhatt  of  TADA  ACT  Spl.Case No.33 of  1994,  is  directed against  the  judgment  and  order dated  21.8.1998  of  the Designated  Court at Brihan ‘Mumbai under the Terrorist  and Disruptive  Activities  (Prevention)  Act, 1987  (for  short TADA  Act).  In the said case seven accused persons  faced trial under Section 120-B read with 307 r/w 34, 307 r/w 114, 307  r/w  149, 387 r/w 34, 143, 144, 147, 148 and 506  (ii), 353  r/w 114 of the Indian Penal Code and Sections 3(2)(ii), 3(3),  3(5), 5 and 6 of the TADA Act and section r/w  25(IB) (a),  Section  5  r/w 27 of the Arms Act.  The gist  of  the prosecution case relevant for the purpose of this proceeding may  be stated thus:  With the growth of industry,  commerce and  trade in and around the city of Mumbai which  generates substantial  quantity of wealth, there has been increase  of organised  activities  by gangs of anti-socials  to  extract money  from  affluent sections of society  like  developers, hoteliers  and other businessmen by putting them in fear  of death  and then to demand substantial sums of money commonly known  as  "Khadani" i.e.  protection money.  One such  gang was operating in the city under Amar Naik @ Bhai, who died a  couple  of  years before the decision in the case  at  an encounter  with the police.  The prosecution alleged that in pursuance  of  a  criminal conspiracy between  15.1.1994  to 16.5.1994  the  accused  persons  and  others  of  the  gang embarked   upon   preparatory  acts   like   procuring   the information about the names of the builders of M/s Kalpataru Construction  Company  which  was engaged  in  developing  a property  at  Pali Hill, named Nakshatra  Building.   PW-7 Sudhir  Tambe  was the Senior Vice-President of the  company with  its  head office at Nariman Point.  He used to sit  in the  head-  office.  PW 6 Pachapur, Civil Engineer,  was  an employee  of  the company who used to remain at the site  to

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supervise  the construction.  As the prosecution story runs, on  15.4.1994 between 11.30 a.m.  and 12.00 noon while PW  6 was  on  duty at the construction site, accused no.3,  Nitin Vasant  Venugurlekar  armed with revolver and  accused  No.4 Rajindera  @  Rajan Mahadeo Margaj armed with a chopper  and accused  no.5 Jayendra @ Jai Anandrao Jadhav also armed with a  chopper  visited the site of Nakshatra Building;   they threatened  the  workers at the site, forcibly brought PW  6 Pachapur  in a room on the ground floor and man-handled him. Accused  no.3, pointing a revolver at him demanded the name, address  and  telephone  number  of   the  builders.   PW  6 disclosed  the  name  of PW 7 Tambe and gave  his  telephone number  to  them.  The accused then asked him to go  to  the office  of  the  builders  at Nariman  Point  and  make  the arrangement  for a telephonic talk with Tambe.  PW 6  rushed to  the  office and told Tambe of what had happened  at  the construction  site.   This was followed by telephonic  calls from  the  accused who wanted to speak to  Tambe.   Attempts were  made by PW 6 and PW 7 to avoid any discussion with the gangsters.   Two  or three days thereafter when the  accused got  Tambe on the telephone he (Tambe) gave them some  other telephone  numbers  and asked them to contact those  persons including one D.N.Ghosh, the Security Contractor.  Eight/ten days  thereafter  again  a telephone call was  made  to  the office  of Tambe which was received by PW 6 who was informed by the person making the call that they could not get D.  N. Ghosh   on  the  telephone   numbers  furnished  by   Tambe. Thereafter  PW  6 handed over the receiver to  Tambe.   This incident  was  followed  by  several threats  given  by  the gangsters  to workers and also repeated telephone calls made to  the  Head Office of the company to contact  Tambe.   The staff  of  the site office absented from work  resulting  in virtual  closure of construction activity.  On 11.5.1994 the deceased  Sanjay  Patil telephoned to Tambe and  warned  him that  he is wasting time and should meet him without further delay.  After some days there was one more similar call from Sanjay  Patil and he asked Tambe that he should talk to Bhai and  saying so he handed over the receiver to another person who  gave  his identity as Amar Naik (since  deceased),  who told Tambe that he should pay Rs.10 lacs.  The later pleaded his  inability  to  pay  such a heavy  sum  and  after  some discussion agreed to pay Rs.5 lacs.  He was asked to come to Nakshatra Building site on 16.5.1994 along with money.  In the  meantime Tambe informed all the happenings to the Addl. Commissioner  of  Police Mr.Sanjeev Dayal and the  then  Dy. Commissioner  of  Police  of Zone VII  Mr.   Rajanish  Sheth within whose jurisdiction Khar Police Station fell.

     On  16.5.1994 at about 12.00 noon the deceased  Sanjay Patil  telephoned Tambe and inquired from him as to what  he was  going  to do about the payment and then  Tambe  replied that  he will be leaving office at about 2.00 p.m.  for Pali Hill.   Sanjay  Patil cautioned him that he should not  make any  haste  and he should wait for his call so that he  will take  necessary instructions from his boss i.e.  Amar  Naik. At  about 2.00 p.m.  on that day there was a telephone  call from  Sanjay Patil telling that Tambe should not meet him at the Nakshatra Building site but instead he should meet him near  the Ceaser Palace Hotel.  This telephonic conversation was  tape-recorded.  Tambe was instructed on telephone  that his  man  shall  carry a white plastic  bag  containing  the amount of Rs.5 lacs and shall wait near the entrance gate of Ceaser  Palace  Hotel and the person coming to  collect  the said bag will introduce himself as Me Rawanacha Manus Hai. Tambe  informed  to the DCP all these happenings and  handed

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over  the  tape  in which the  telephonic  conversation  was recorded  by him.  The DCP had made the arrangements to keep a regular watch near the building site.  PW 1 Sunil Deshmukh was  deployed to wait in cognito near the gate of the Ceaser Palace  Hotel and to carry the white plastic bag  containing bundles  of  papers which would give an appearance like  the bundles  of  currency notes.  The other officers,  who  were also  in  cognito,  had taken their  position  at  strategic points  near the hotel.  At about 4.05 p.m.  Sunil  Deshmukh noticed  that one red coloured Maruti van halted in front of the  Ceaser Palace Hotel.  He noticed three persons  getting down  from the said van.  Those three persons were coming in his  direction,  and the van went ahead 50 to 60  feets  and halted  there.   The deceased Sanjay Patil and  the  accused no.7  Bapu  Sidhram Gaikwad got down from the said  van  and accused  no.6 Mohamed Ismail was sitting on the driver  seat in  the  van.  The three accused persons i.e.  accused  no.1 Babu  Kuttan Pillai, accused No.2 Umesh @ Babu Bhatt and the absconding  accused  Ramchandra  Negi approached PW  1.   He enquired  from PW1 about his identity and when PW 1  replied that  he has been sent by Tambe Sahib.  PW 1 Sunil  Deshmukh then asked that person who are you (Tum Kaun Hai) and then the  accused  no.2 Umesh Bhatt told him that Hum  Rawan  Ke Aadmi  Hai.   Thereafter accused no.1 Babu Kuttan  extended his hand towards PW 1 who delivered the bag to him.  At this juncture  the  police officers who were standing  nearby  in cognito  rushed  to  the  place  and  surrounded  the  three persons.   When the police officers were trying to overpower them  the  deceased  Sanjay Patil @ Avinash Amanna  and  the accused  no  .7  Bapu  Sidhram  Gaikwad  came  forward  with revolvers  in their hands and threatened the police party by saying  they  should leave their men or else  the  policemen will  be  killed.  Saying so they fired in the direction  of the  police party.  At this point PW 1 took out his revolver and pointed it in the direction of the accused and told them we  are  all  policemen  and you  should  throw  away  your revolvers else we will fire.  Even then the accused persons fired some rounds in the direction of the police party, then PW  1  and one other officer tried to rush towards them  but they  sat  in  the said Maruti van and sped  away  from  the place.

     After  the situation calmed down, the police drew  the panchnamas    Ex.22  in  presence  of  some  witnesses  and conducted  personal  search of the three culprits.  On  such search  accused no.1 Babu Kuttan Pillai was found to possess the  plastic  bag  containing  the  paper  bundles  (Art.1), accused  no.2 Umesh Bhatt was found to possess a big Rampuri knife  which was hidden at the waist under the pant by  left side.

     After completion of investigation the police submitted the  charge-sheet.   The  three  persons at  the  spot  were remanded  to  the police custody.  Subsequently,  the  other accused  persons were also arrested.  They were put to  test identification   parade.   The  learned   Trial   Judge   on appreciation  of  the evidence on record  convicted  accused no.1  Babu  Kuttan  Ramkrishna Pillai and the  accused  no.2 Umesh  @  Babu Purshottam Bhatt for the  offence  punishable under  section  395 of the Indian Penal Code  and  sentenced each  of them to suffer rigorous imprisonment of 5 years and to  pay  a fine of Rs.500, in default of payment of fine  to undergo  further  Rigorous Imprisonment for 6 months.   They were  also  convicted under Section 120 B of the IPC but  no separate  sentence  was passed.  They were acquitted of  the

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other  offences with which they were charged.  The remaining accused  persons  i.e.   accused nos.  3,4,5,6  and  7  were acquitted  of all the charges framed against them.   Accused nos.  1 and 2, have filed this appeal assailing the judgment passed   by   the  Designated   Court  at   Brihan   Mumbai, convicting/sentencing them as above.

     On  a reading of the judgment under challenge, we find that  the learned trial Judge has considered the entire case led  by the prosecution in great detail and after discussing the  charges  framed against the appellants  under  sections 3(2),  3(3)  and 3(5) of TADA Act, rejected the  prosecution case  on that count.  Thereafter the learned trial Judge  in paragraph 17 onwards considered the question of what offence was  made  out  against the appellants.   After  a  detailed discussion   of   the  relevant   evidence  placed  by   the prosecution  and  after  examining it in the  light  of  the contentions  on  behalf  of the defence, the  learned  trial Judge believed the testimony of PW 1- Sunil Deshmukh, PW 7 - Tambe  and  PW  9 - L.J.  Kamble and came to hold  that  the appellants  are guilty of the offence of criminal conspiracy punishable  under  section 120-B and the offence of  dacoity punishable   under  section  395   IPC  and  convicted  them thereunder and imposed the punishment as noted earlier.

     We  have perused the evidence of these witnesses.   We do  not  find that the appreciation of evidence made by  the learned  trial  Judge  suffers from any illegality  nor  can findings  recorded  by  him  be said to  be  perverse.   The learned  trial Judge has given cogent reasons for  accepting the  evidence lead by the prosecution against the appellants and for rejecting the contentions raised by the defence.  We are  not  satisfied that the judgment of the  learned  trial Judge calls for interference by this Court.  Accordingly the appeal is dismissed.