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PETITIONER: MURARILAL JIVARAM SHARMA AND ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       20/12/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      S.P.KURDUKAR, J.      This criminal  appeal on  obtaining  special  leave  is filed by  the appellants who are original accused Nos. 3 and 4 respectively. These two appellants alongwith three accused (acquitted)  were   tried  for   offences  punishable  under Sections 120-B,  302/120-B, 307/120-B  of the  Indian  penal code or  in the alternative under Sections 302, 302/34, 307, 307 read  with Section  34 of the Indian Penal Code. A-4 was also tried for an offence punishable under Section 27 of the Arms Act.  The Addl.  Sessions Judge,  Pune, by his judgment and order  dated 24th  March, 1988,  convicted all  the five accused for  an offence  punishable under  Section 120-B  of Indian Penal  Code and sentenced each one of them to undergo imprisonment  for  life;  they  were  also  convicted  under Sections 302/120-B  of the  Indian Penal  Code  for  causing death of  Umesh Shetty and each one of them was sentenced to undergo life imprisonment; they were also found guilty under Sections 302/120-B   of  the Indian  Penal Code  for causing death  of   Shankar  More  and  were  sentenced  to  undergo imprisonment for  life; they  were further  convicted  under Sections 307/120-B  of the Indian Penal code for the offence of attempt  to commit  murder of  Sham Sule (PW 15) and each one of  them was  sentenced to undergo rigorous imprisonment for ten  years and  to pay  a fine  of Rs.  5001/- each;  in default to  undergo  RI  for  one  year.  A-4  (Deshrathaing Koksing Tomar)  was convicted  under Section  27 of the Arms Act and  sentenced to  suffer RI for five years and to pay a fine of  Rs. 100/-; in default to undergo further RI for six months. All  the substantive  sentences were  ordered to run concurrently. Being  aggrieved by  the  judgment  and  order passed by  the  Addl.  Sessions  Judge,  Pune,  the  accused persons preferred  Criminal Appeal  No. 379  of 1988  to the High Court  at Bombay.  The High Court vide its judgment and order dated  March 13/14,  1991, accepted the appeal of A-1, A-2 and  A-5 and acquitted them of all the charges; however, the  convictions  of  A-3  and  A-4  under  Sections  120-B, 302/120-B IPC  ( for  two murders ), were altered to Section 302/34 IPC  for committing  the murder  of Umesh  Shetty and Shankar More  (two counts) and sentences of imprisonment for

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life  maintained.   Their  conviction   and  sentence  under Sections 307/120-B  IPC were  upheld. A-4 was also convicted under Section  27 of  the  Arms  Act,  but,  no  substantive sentence  was   awarded.  The   High  Court   directed   all substantive sentences  to run  concurrently. The appellants, being aggrieved by the judgment and order passed by the High Court has filed this appeal to this court. 2.   The prosecution story at the trial was as under:-      Khandala, a  hill station  in  Pune      district is  a very popular holiday      resort during Monsoon. The shooting      resulting into  two deaths, namely,      of Umesh  Shetty and  Shankar  More      occurred on  July 17, 1986 at about      11.50 a.m.  at Khandala when it was      drizzling. Umesh Shetty was said to      be  a   sympathiser  of  Shiv  Sena      whereas A-5  was the  President  of      rival organisation  called  Maratha      Mahasangh  Maval  Tehsil.  He  also      happened to  be Municipal councilor      of Lonavala  Municipality.  A-2  is      his real  brother who was running a      country liquor  shop  near  Saibaba      Temple  outside   Railway  station,      Lonavala, which  is situated  at  a      distance of  about  4/5  kilometers      from khandala. A-1 was the rickshaw      puller residing  at shriram Hutment      Area, Gavaliwada, Lonavala, A-3 and      A-4  at   the  relevant  time  were      working in he liquor shop run by A-      2  and   were  residing   at  Ashok      Hutment Area, Lonavala. 3.   Umesh Shetty  was the resident of a village called Shiv Sena in  Maval Tehsil.  It was  stated that  he  had  a  big following having  a considerable  influence of  shiv Sena at Lonavala city  and adjoining  area which was not appreciated by A-5 who happened to be the leader of Maratha Mahasangh of Lonavala city.  The relations between them were strained and inimical too.  Prior to the day of occurrence, several cases were pending  between these two groups in criminal courts at Vadagaon Maval  and Sessions  Court at Pune and some of them ended in acquittal. 4.   It was  alleged by  the prosecution  that  A-1  to  A-4 belonging to  the group of A-5 hatched a conspiracy to cause murder of  Umesh Shetty with a view to curb the influence of shiv Sena  in that  region. To woke out the said conspiracy, services of  Balu Atmaram  Chavan (PW 3) were used. Pursuant to the  said conspiracy,  on 8th  February, 1986, and at the direction  of  A-2  and  A-5,  Balu  (PW  3)  alongwith  his associates Jamil and Raju assaulted Umesh Shetty with sword; however, he  survived. After  reporting the  incident to the police, Balu  (PW 3)  and his two associates were prosecuted and were  lodged in jail but later on released on bail. Balu (PW 3)  then decided to settle his differences amicably with Umesh Shetty  and in  a meeting  held on  1st July, 1986, at about 7.30  p.m. at shalimar hotel at Khandala, the disputes were settled.  While dispersing  from the said meeting, Balu (PW 3),  Umesh Shetty,  Mohan  Muttu  (PW  4),  Radhakrishna Nayadu (PW  7) and  one Dighya were standing together by the road side.  Balu (PW  3) then told Umesh Shetty that A-5 had engaged hirelings through A-2 to liquidate him. Umesh Shetty then said "let them do whatever they want" and saying so all dispersed.

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5.   Umesh Shetty  was residing  in house  No.  26,  Ward-F, Lonavala. On  16th July, 1986, a telephone call was received in the  morning which was attended by Razia (PW 6). The call was said  to have  been made by one P.D.Pawar. Again after a short while  another telephone  call was received when Umesh Shetty inquired  from Razia  and she  told him that it was a message  from   P.D.Pawar  who   wanted  to  talk  with  him personally. Third  telephone call  at about  10.30 a.m.  was received on  the same  day making  inquiries of Umesh Shetty and it  was informed that one Naresh was being assaulted and Umesh Shetty  should  be  sent  immediately.  This  message, however, was not passed on to Umesh Shetty. 6.   It was  then alleged  by the  prosecution that  on 17th July, 1986, there was again a telephone call to Umesh Shetty which was  attended to by Razia but she did not inform about it to  Umesh Shetty.  Second call was received at about 9.30 a.m. by  Umesh Shetty  who told  that he  will come at about 10.30 a.m.  Umesh Shetty  then left  alongwith Shankar  Danu More  and  Sham  Sule  (PW  15)  in  his  fiat  car  bearing registration No.  MRC-7231 towards  hotel Nagraj.  They  saw three men  sitting in the hotel and were enjoying the drinks and tea.  Umesh Shetty also ordered two bottles of liquor, a cup of  tea and Soda and snacks. Umesh Shetty paid the bill. Avinash (PW  14) a  rickshaw  puller  had  parked  his  auto rickshaw  No.   MTR-110  near  hotel  Nagraj.  Another  auto rickshaw bearing  No. MHQ-1735  was parked near hotel Eltaj. A-1 who  was dressed  in khaki  colour clothes  was standing near the  said rickshaw.  Ramesh Haribhau Kahadik (PW 16) at the relevant  time was  selling maize  corn on handcart near hotel  Nagraj.   At  that   time,  it  was  alleged  by  the prosecution that  two persons  with yellow colour jerkin and red colour  jerking (later  identified as A-3 and A-4 in the court) came  near Ramesh  (PW 116)  and purchased some maize corn from  him. A-3 and A-4 them went towards Tandoor corner site of  hotel Nagraj and a person in a yellow colour jerkin after approaching  Ramesh (PW  16)  complained  about  maize corn. At  about the  same time,  Umesh Shetty  came  outside hotel Nagraj  with Shankar More and Sham Sule and sat in the fiat car.  Umesh Shetty  was sitting  on  the  driver  seat. Shankar more was sitting on the front seat whereas Sham Sule (PW 15)  was on the rear seat. Suddenly, two persons wearing yellow colour  jerkin and  red colour jerkin ran towards the fiat car of Umesh Shetty. A-4 wearing red colour jerkin then took out the revolver/pistol and fired shots at Umesh Shetty first and  then  at  Shankar  More  who  sustained  bleading injuries and  collapsed in  the car.   Shankar  Sule (PW 15) who was  sitting on  the rear  seat tried  to ward  off  the shots. While doing so, he sustained one bullet injury on his right waist.  He shouted  loudly that  he, Umesh  Shetty and Shankar More  were shot  down. Upon hearing the said shouts, Madhumar (PW  12), Avinash  (PW 14)  and Ramesh  (PW 16) ran towards the  spot. In the meantime, both the assailants (A-3 and A-4)  ran towards  auto rickshaw  No. MHQ-1735 which was driven by  A-1 and  fled away towards Lonavala side. Shankar Rao Barge  (PW 20), who was then investigating another crime and while  recording inquest  panchanama on  the dead boy of Susubai Navasa  Jadhav at  Primary Health  Centre, Khandala, upon hearing the sound of firing of shots went towards hotel Nagraj. He  then noticed  that Umesh Shetty and Shankar More had collapsed  in the  car  in  a  pool  of  blood.  Persons gathered at the spot told the Head Constable that assailants had ran  away towards  Lonavala side.  He  asked  Bathe  and Patil, the  police constables who were with him to chase the assailants. The  injured were  then  removed  to  a  private dispensary of  Dr. Parmar  at Lonavala who declared both the

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injured as  dead whereas  the condition of Sham Sule (PW 15) was found  to be  critical and advised them to remove him to Sasson Hospital,  Pune. Head  Constable Barge  (PW 20)  sent Sham Sule  (PW 15) in the ambulance to Sasson Hospital, Pune and returned  to the  police station,  Lonavala to lodge the occurrence report.  The report  Ex.70 was  lodged  at  about 12.50 hours.  PSI Dhumal attached to Lonavala police station then registered  crime No.  102/86 under  Sections  302  and 307/34 of the Indian Penal Code and also under Section 27 of the Arms  Act. He  then took  over the  investigation. After reaching the  place of  occurrence, he  carried out the spot panchanama, collected  the blood  stained  earth  and  other articles found  at the place of incident including five used cartridges. He  then  recorded  the  statements  of  various persons. The  dead bodies  of Umesh  Shetty and Shankar More were sent  to the  Sasson Hospital,  Pune  for  post  mortem examination. The  statement of the injured Sham Sule (PW 15) was recorded by PI Joshi on 18th July, 1986. A-2, A-3 and A- 4 came  to be  arrested on 28th July, 1986 near Poon shop at Swargate area  of Pune city. A-5 was arrested on 1st August, 1986. During  the course  of  investigation,  identification parades were  held on four different dates. After completing the investigation,  all the  five accused  came to be charge sheeted for the offences as indicated above. 7.   The defence of all the accused is that of total denial. They denied  the allegations  of conspiracy  or they had any motive to  commit the  murder of  either of  them. They also denied that  there was  any revelry  between the two groups. The entire  case against  them was  cooked up  one. They are innocent and they be acquitted. 8.   The prosecution  examined in  all 24 witnesses and also produced documentary evidence to substantiate the charges. 9.   As indicated earlier that trial court convicted all the five accused on various counts, but the High Court acquitted A-1, A-2 and A-5 of all the charges and convicted A-3 and A- 4 (appellants)  under Sections  302/35  and  307/34  of  the Indian Penal  Code. A-4  was also convicted under Section 27 of the  Arms Act  and each  of them  was sentenced to suffer various terms  of imprisonments as indicated in the impugned order. 10.  Mr. Kohli,  the learned  Senior Advocate  appearing  in support of  this appeal  urged that  the evidence of alleged eye witnesses  was totally unbelievable firstly because they are partisan  witnesses and  secondly they  could  not  have identified either  of the  accused as  it was  drizzling and visibility was  very poor.  Therefore, the  identity of  the appellants in  the court  should not  have  been  considered reliable. He  also  urged  that  the  appellants  have  been falsely implicated  in the  present crime  due to  political rivalry. Mr.  Kohli submitted  that the  prosecution  having failed to establish the conspiracy, the appellants could not have been  convicted under Sections 302/34 and 307/34 of the Indian Penal  Code. He  further urged that Sham Sule (PW 15) who was  injured and  was sitting  inside the fiat car could not identify  the appellants.  He, therefore, submitted that there is  no evidence  worth the  name which  could form the basis of  conviction of  the appellants  who re innocent and they be acquitted. 11.  Mr. S.M.Jadhav,  learned  Advocate  appearing  for  the State of  Maharashtra supported  the impugned  judgment.  He urged that  both the courts below have accepted the evidence of prosecution witnesses as reliable not only as regards the identity of  the miscreants but also the manner in which the appellants have  gunned down  Umesh Shetty and Shankar More. They also  attempted to  commit the  murder of Sham Sule (PW

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15). The findings of fact were based on appreciation of oral and documentary  evidence on  record and  since findings  of both the courts are concurrent, this Court would not disturb the same  unless there  is any  illegality  or  grave  error committed by  the courts  below in appreciating the evidence on record.  He, therefore,  urged that there is no substance in the appeal and the same be dismissed. 12.  We have  very carefully  gone through  the judgments of the  learned  courts  below  and  after  going  through  the evidence and  other materials  on record,  we are  satisfied that the  findings recorded  by the  courts below as regards the guilt  of the  accused cannot  be said to be perverse or illegal and call for out interference. 13.  At the  outset, it  may be  stated that  since the High Court negatived  the prosecution  case of  conspiracy  under Section 120-B  of the  Indian Penal Code and since the State of Maharashtra  had not  filed any SLP against the said part of the  order of  acquittal,  we  need  not  advert  to  the evidence led  by the  prosecution on  this charge.  We  may, therefore, proceed  to consider as to whether convictions of the appellants  under Sections  302/34 (on  two counts)  and under Sections  307/34 are  sustainable.  We  also  need  to consider the  conviction of A-4 under Section 27 of the Arms Act. 14.  It was  not and  could not  be seriously  disputed that Umesh Shetty  and Shankar  More were the victims of fire arm injuries. Dr.  Mrs. Tavare  (PW 17)  held the autopsy on the dead body  of Umesh  Shetty and  recorded  as  many  as  six punctured wounds  on the  dead body. All these injuries were ante mortem  and they were sufficient in the ordinary course of nature  to cause death. There was no serious challenge to her evidence  and we  see no  hesitation in  confirming  the finding of  the courts  below that  Umesh Shetty  met with a homicidal death. 15.  Dr. Mrs.  Tavare (PW 17) also conducted the post mortem examination on the dead body of Shankar More and noticed two punctured wounds  on the  dead body. She further opined that both these  injuries were ante mortem and were sufficient in the ordinary  course of  nature to  cause death. She further stated that  injuries on  Umesh Shetty and Shankar More were bullet injuries.  We may,  therefore, safely  conclude  that Shankar More also died a homicidal death. The relevant issue that falls  for our  determination is  as to  who  were  the assailants of  Umesh Shetty and Shankar More and whether the finding of the courts below as regards the complicity of the appellant in the present crime is sustainable. 16.  Coming to the main incident of shoot out at about 10.30 a.m. on  17th July,  1986, we may start with the evidence of Madhukar (PW  12) who  was a  waiter  in  hotel  Nagraj.  He testified that  on the date of incident at about 10.30 a.m., three persons  came to the hotel including Sham Sule (PW 15) and after  having the  drinks and tea left the hotel and sat in the  fiat car  of deceased Umesh Shetty. His evidence was supported by Sham Sule (PW 15), the injured, Avinash (PW 14) and Ramesh  (PW 16). Madhukar (PW 12) being a waiter on duty and since  the incident  took place  very close to the hotel Nagraj where  he was  working as  waiter, his presence could not be  disputed. He  testified that  he saw the incident in question. While  identifying A-3 and A-4, he stated that one was wearing  a red colour and another yellow colour jerkins. They came  from Tandoori  Corner and went to the place where the fiat  car was  parked. When  he heard the shots from the fire arm, he was standing at the counter approximately 10 to 15 feet  away from the place of occurrence and the person in red jerkin (A-4) had fired at the inmates of the fiat car. A

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person in  yellow jerkin (A-3) was standing alongwith A-4 in front of  the car.  Ramesh (PW 16) at the relevant time, was selling the maize corns on handcart parked near hotel Nagraj and according  to him,  he used  to do  the business between 9.00 a.m.  and 7.00  p.m. Two  customers approached  him  to purchase maize  corn and  one of  them was in yellow and the other was  in red  jerkins. However,  they raised  a dispute about the  quality of  maize  corns.  Thereafter,  both  the customers went  towards the  fiat car and, of them, a person having a  red jerkin  (A-4) fired at the inmates of the car. He identified the person in yellow jerkin as A-3 and another person in  red jerkin  as A-4. Thereafter, both of them went towards Eltaj  hotel and  fled away  in a  three wheeler. He admitted that when the incident took place, it was drizzling but asserted  that he  had seen  both A-3 and A-4 from close quarters.  While   assailing  the  evidence  of  both  these witnesses, Mr.  Kohli urged  that it would be very unsafe to accept the  evidence of both these witnesses on the identity as well as the complicity of A-3 and A-4. He also urged that admittedly it  was drizzling  at the  time of  incident  and Khandala being  a picnic spot, many customers and holidayers were found  at that  place and  it was  impossible for these witnesses to  identify the  appellants. Although, both these witnesses were  searchingly cross-examined  on behalf of the defence, but  we see  no  material  on  record  which  would persuade us to discard their evidence. 17.  Sham Sule (PW 15) is an injured witness. He was sitting in the  fiat car  at the time of incident. He testified that the person  in yellow jerkin (A-3) and another person in red jerkin (a-4)  came near  the fiat car from the driver’s side and A-4  fired at  Umesh Shetty and Shankar More. He further stated that A-4 also fired at him but he warded off the said attack and  while doing  so got  the injury on his waist. In addition to  the evidence  of these  three eye  witness, the prosecution also relied upon the evidence of Avinash (PW 14) who was  the rickshaw  driver had  parked his  rickshaw near hotel Eltaj and waiting for the customer. He had stated that two persons  one in  yellow jerkin and another in red jerkin went towards the fiat car and the person in red jerkin fired at the  inmates of the car. Thereafter, both of them came to the Eltaj hotel and fled away in a three wheeler. 18.  After going  through the  evidence of  all  these  four witnesses, we  are satisfied  that  the  courts  below  have committed no  error in  coming to  the conclusion  that  the appellants were  the assailants  of Umesh Shetty and Shankar More and also caused grievous injuries to Sham Sule (PW 15). 19.  To lend  further corroboration  to the  identity of the appellants, the  prosecution relied  upon  the  evidence  of S.S.Khole  (PW   11),  Taluka   Executive  Magistrate,   who conducted T.I. parade. The eye witnesses have identified A-1 and A-4  in the said parade. While assailing the evidence of T.I. parade,  Mr. Kohli urged that although the accused were arrested by  26th July,  1986 and such a delayed T.I. parade be not  accepted. He  further urged  that possibility of the suspect being  shown to the eye witnesses during this period could not be rule doubt. We do not see any substance in this contention notwithstanding  the fact  that T.I.  parade  was held  after  about  tow  months.  The  materials  on  record unmistakably indicate  that the  investigating  officer  had sent a  letter of request Ex.44 (cc) on 13th August, 1986 to the Taluka  Executive Magistrate  for holding  T.I.  parade. Repeated letters  were written  to the  Executive Magistrate but because  of his  pre-occupation, it  could not  be  held before 25th  September, 1986.  There is  no substance in the contention that  the eye  witnesses  had  seen  the  accused

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before they  were put  up for T.I. parade. After considering the materials  on record, we are satisfied that the evidence of identification  parade is  unimpeachable and  we  see  no reason to discard the same. 20.  It was  then urged  by Mr.  Kohli that  because of  the political rivalry, the appellants were falsely implicated in the present  crime. In  the present case, since the evidence of eye witnesses is found to be truthful, the motive assumes a secondary role. 21. Coming  to the conviction of the appellant under Section 307/34 of  the Indian  Penal Code,  we are of the considered opinion that  having regard  t the evidence of Sham Sule (PW 15) coupled  with the  medical evidence  and the  fact  that identity of  both the appellants having been established, we see no  infirmity as  regards the  conviction  of  both  the appellants on the said count. 22.  The conviction  of A-4 under the Arms Act also does not call for  any interference  inasmuch  as  the  country  made revolve (article J) was recovered from the possession of A-4 when he was arrested on 28th July, 1986 at Pune. The seizure memo is  Ex. 79.  During  the  investigation,  empties  were seized from  the  place  of  occurrence.  The  revolver  and empties were sent to the Chemical Analyser and his report is at Ex.  78. The  revolver was  reported  to  be  in  working condition and  empties could  be fired  therefrom. A-4  was, therefore, rightly  convicted under  Section 27  of the Arms Act. 23.  For the foregoing conclusions, we are of the considered view that  the impugned  judgment of  the High  Court  dated March 13/14,  1991, does not suffer from any infirmity which calls  for  our  interference.  The  appeal  is  accordingly dismissed. The  appellants, who are on bail, shall surrender to their  bailbonds forthwith  to serve  out their remaining part of sentences.