IN THE COURT OF SESSIONS FOR GREATER BOMBAY, AT FORT (Presided...

Received on : 03/10/2008Registered on : 24/04/2009Decided on : 31/07/2013Duration : 04Y, 09M, 28D

IN THE COURT OF SESSIONS FOR GREATER BOMBAY,AT FORT

(Presided over by S.G.Shete, C.R.No.07)

SESSIONS CASE NO.294 OF 2009 Exh.901(OLD M.C.O.C. CASE NO.14 OF 2008)

The State of Maharashtra ...Complainant(through Assistant Commissionerof Police, Detection Crime BranchCrime Investigation Department, Unit – I, Mumbai, C.R.No.116/2008of DCBCID in C.R.No.25/2008 of Poynad Police Station)

Versus

1. Pravin Dayanand Shetty ...AccusedAge 35 years, Occ. Driver,R/o.Borsapada, Indiranagar,Kandivali (W), Mumbai.

And

Original resident of Anandnagar,Kariyakal, Taluka Karkla,District Udipi, Karnataka

...2/

S.C.No.294/09...2... State V/s. Pravin D. Shetty & 7 Ors.

Judg. contd.Exh. 901

2.Ajimuddin Maulasab Shaikh (Accused/Approver)Age 39 years, Occ. MasonR/o. Hanuman Chawl, Dindayal Nagar, Upadhyay Nagar, M.I.D.C., Andheri (W),Mumbai.

And

Original resident of Hangraga,Taluka Aurad, District Bidar,Karnataka.

3. Harish Rama Mandvikar ...AccusedAge 33 years, Occ. ElectricianR/o. Bharti Chawl, Room No.42,1/9, Indira Nagar, Borsapada,Kandivali (W), Mumbai 400 067.

4.Suhas Mahadev Roge ...AccusedAge 42 years, Occ. Hotel Business,R/o.3/B, Dadyseth Wadi, Siri Road,Band Stand, Girgaon Chowpati,Malbar Hill, Mumbai 400 006.

5.Kiran Baban Amle ...AccusedAge 36 years, Occ. Cable BusinessR/o. Room no.1, Bhaskar KolekarChawl, Navagaon, Laxman MhatreRoad, Dahisar (W), Mumbai 400 068.

...3/



6. Kiran Ragu Pujari (Accused/Approver)Age 30 years, Occ. Nil,R/o.41/4, Shree Ganesh Krupa,Powai Chowk, Mulund Colony,Mulund (W), Mumbai 400 080.

7.Jaya Talakshi Chheda ...AccusedAge 49 years, Occ. NilR/o. 126, Room No.3518, Pantnagar Vishal Housing Society, Ghatkopar(E), Mumbai.

8. Hitesh Suresh Bhagat ...AccusedAge 33 years, Occ. Share Trading,R/o. 212, Jayant Villa, 4th floor,Opp. Worli Market, Worli,Mumbai 400 018.

CHARGE : U/s.120B, 302 r/w. 34 of I.P.C.

Ms. Kalpana Chavan, Spl.P.P. for the State.Shri Avinash Rasal, Advocate for accused no.1.Shri Vilas Naik, Advocate for accused no.3Shri Adhik Shirodkar, Senior Advocate with Shri Archit Sakhalkar, Advocate for accused no.4.Shri Amit Munde, Advocate for accused no.5Shri Sudeep Pasbola, Counsel with Shri Ram Pawde, Advocate for the accused no.7.Shri Taraq Sayyed, Advocate for accused no.8

...4/



J U D G M E N T(Delivered on 31st July, 2013)

The accused are charged for the commission of the

offences punishable u/s.120B, 302 r/w. 34 of Indian Penal Code

(IPC), for hatching criminal conspiracy to kill one Suresh Bhagat and

committing his murder and six others with their common intention.

2. Prosecution case is thus :

Deceased Suresh Bhagat was running Mataka business.

Accused no.7 Jaya Suresh Bhagatmaiden name Jaya Talakshi

Chhedais his divorcee. Accused no.8 Hitesh Bhagat is their son.

Accused no.4 Suhas Roge was previously serving as his bodyguard

and is said to be a paramour of accused no.7 Jaya Chheda. It is

alleged that accused no.4 Suhas Roge and accused no.7 Jaya Chheda

were also running mataka business. Accused nos.4, 7 and 8 were

intending to rein Mataka business of Suresh Bhagat. Accused no.2

Ajimuddin Maulasab Shaikh, who turned to be approver, was the

owner of truck no.MH04CA4445. Accused no.1 Pravin Shetty, who

was the driver of the said truck, gave dash to Scorpio bearing no.MH

01AC2475, in which deceased Suresh Bhagat and others were

sitting. Accused no.3 Harish Mandvikar was an electrician and

pretending himself as a “Bhai” as well as social worker and thereby,

...5/



formed a “Dahi Handi Mandal”. He was knowing approver Ajimuddin

Shaikh as previously they were colleague with 'M/s. Jai Electricals'.

He also used to give his truck for dahi handi as well as for Ganpati

festival. They were knowing each other for more than 10 years.

Accused no.5 Kiran Amle is also a member of “Dahi Handi Mandal”

as well as coaccused with accused no.3 Harish Mandvikar in other

criminal cases. They were the members of the “Cricket Club”.

Accused no.3 Harish, accused no.5 Kiran Amle and approver

Ajimuddin are the resident of Borsapada, Kandivali. Accused no.6

Kiran Pujari, who turned to be approver, is a so called social worker,

police informer and having contacts with police, government officials

and even with the Ministers.

3. Special case bearing no.02/2008 under N.D.P.S. Act was

pending against deceased Suresh Bhagat, his son Hitesh Bhagat &

others in Sessions Court, Alibaug. On 15/5/2008, it was adjourned to

13/6/2008. Accused no.4 Suhas Roge, accused no.7 Jaya Chheda and

accused no.8 Hitesh Bhagat hatched the conspiracy to kill the

deceased Suresh Bhagat to rein his mataka business with the help of

accused no.6 Kiran Pujari, who agreed to cooperate with political

influence as well as influence with police for valuable consideration.

Thereby, accused no.3 Harish Mandvikar took the contract (Supari)

...6/



with them to eliminate Suresh Bhagat, for an amount of Rs.70 lakhs,

while returning from Alibaug Court. As a part of the conspiracy,

accused Hitesh chose to remain absent in Alibaug Court on both the

dates. Approver Ajimuddin agreed with Harish Mandvikar to give

the truck for a consideration of Rs.10 lakhs. Accused no.1 driver

Pravin Shetty agreed with Harish Mandvikar to ply the truck and to

eliminate the deceased Suresh Bhagat by giving dash to his vehicle

while returning from Alibaug Court for an amount of Rs.3 lakhs.

Accused no.5 also joined the hands with accused Harish Mandvikar

for the commission of crime for valuable consideration.

4. In fact, the conspiracy was hatched to kill Suresh Bhagat

on 15/5/2008 i.e. the previous date in Alibaug Court, but, the same

did not materialise. On the day of the incident i.e. on 13/6/2008,

Suresh Bhagat, his nephew Tushar Shah, his bodyguards

Dharmendra Singh and Milind Namdeo Kadam, Advocate Kamlesh

Bhagwan Salunkhe, servant Valmiki Sitaram Pawar and one

Kamlesh Ashok Kamble went to Alibaug by Scorpio jeep bearing

no.MH01AC2475 for attending the court. While returning by

AlibaugPen Road, at about 1.15 p.m., accused no.1 rammed Scorpio

jeep by the truck bearing no.MH04CA4445 with an intention to

commit the murder. Resultantly, Suresh Bhagat and five others died

...7/



on the spot due to heavy impact. One of them by name Kamlesh

Kamble also sustained serious injuries, who could not survive though

ultimately forwarded to Sion Hospital, Mumbai.

5. On 13/6/2008, P.W.01 Head Constable J.D. Mokal was on

duty between 13:00 hrs. to 20:00 hrs., as a Station House Officer of

Poynad police station. At about 13:45 hrs., he received the telephonic

message that accident occurred between one truck and Scorpio jeep

in front of “Fauji Dhaba” on AlibaugPen Road, within the vicinity of

village Shahbaj. Immediately he informed the incident to the Station

Incharge, Sr.P.I. Hiremath. Thereby, informant Head Constable

Mokal, Sr.P.I. Hiremath and the other staff rushed to the spot of

incident. When they reached on the spot, they found that headon

collusion between truck and Scorpio jeep had taken place. They

noticed that truck was facing towards Pen and its rear side was down

side of the road as well as front sides of Scorpio and truck were

totally damaged. They found that Scorpio was completely damaged

and front side of the truck was damaged. Seven passengers in

Scorpio were seriously injured and removed from Scorpio and sent to

Civil Hospital, Alibaug.

...8/



6. On the local inspection of the spot, P.W.01 J.D. Mokal

found that truck was proceeding from Pen to Alibaug whereas

Scorpio was proceeding from Alibaug to Pen. He found that truck

driver was driving the truck recklessly and without considering the

condition of the road. Six passengers from Scorpio jeep had died on

the spot and one was severely injured, who died later. Immediately,

after the incident, truck driver ran away from the spot. Accordingly,

informant Head Constable Janardan Dhaya Mokal went to Poynad

police station and lodged the report u/s. 304A, 279, 337, 427, 338 of

IPC as well as u/s. 184, 134 of Motor Vehicle Act. On the basis of his

report, Station House Officer registered the crime vide C.R.No.I

25/2008.

7. Being a Sr.P.I., P.W.71 Hiremath carried out the

investigation by drawing a spot panchanama. Dead bodies were

forwarded to Civil Hospital, Alibaug for post mortem. He obtained

the Compact Disk (C.D.) and photographs of the vehicles with the

help of photographer Shri Musale and Shri Chavalkar. On 18/6/2008,

with the help of mechanic Nakul, he inspected the vehicle and found

one pistol, six cartridges and one 'Nike' bag containing the copies of

Writ Petition. Accordingly, he drew the seizure panchanama of pistol,

chopper and documents in the bag.

...9/



8. In the meantime, District Superintendent of Police

directed the parallel investigation to Local Crime Branch, Raigad.

Accordingly, Sr.P.I. V.K. More also inspected the spot on the same

day. During the inspection of vehicles, he found mobile numbers

written over the truck and contacted the truck owner Anand Patil as

well as approver Ajjimuddin. On telephonic inquiry, he found that

approver Ajjimuddin Shaikh and the Anand Patil are the owners of

the truck in question. Immediately he rushed to Dahisar, Mumbai.

He went to the house of Ajjimuddin Shaikh and interrogated in

respect of the driver. During the interrogation, he came to know that

accused no.1 Pravin Shetty was the driver. On 14/6/2008, Sr.P.I. More

also nabbed the accused no.1 Pravin Shetty and approver Ajjimuddin

and brought both of them to Poynad Police Station.

9. At the time of the arrest, accused no.1 was found in

possession of one toll receipt. At the relevant time, he found that

accused no.1 Pravin Shetty sustained the injuries on his forehead

and nose. During the investigation, he found that it was not an

accident, but it is the case of murder. Thereby, on 16/6/2008, I.O.

submitted the report to Chief Judicial Magistrate, Alibaug, for

addition of charge u/s. 302, 120B of IPC. Accordingly, he arrested

accused no.1 driver Pravin Shetty and accused no.2 Ajimuddin

...10/



Shaikh (approver) and produced them before the Magistrate for

police custody. On 16/6/2008, he issued a letter to the concerned

mobile service provider company for getting call detail reports.

10. During the investigation i.e. on 19/6/2008, I.O. arrested

accused no.3 Harish Mandvikar and accused no.4 Suhas Roge from

Somnath Chowk, Surat. On 19/6/2008, both the accused were

produced before the Magistrate, who granted the police custody.

During the investigation, accused Harish Mandvikar made voluntary

statement and shown willingness to produce the cash received by

him as a consideration of the contract to kill Suresh Bhagat, from the

house of his friends P.W.39 Arvind Modasia and P.W.77 Anthony Raj

Nannya Dravid, residents of Kandivali, Mumbai. Accordingly, they

went to the house of Arvind Modasia and Anthony Raj Nannya

Dravid. They produced the cash of Rs.23,50,000/ and Rs.8,00,000/

respectively, at the instance of accused Harish Mandvikar and the

same was seized under recovery panchanama u/s. 27 of Evidence Act.

Thereafter, IO recorded the statements of Arvind Modasia and

Anthony Raj Nannya Dravid. On 21/6/2008, I.O. took search of the

house of the accused no.7 Jaya Chheda in the presence of accused

Suhas Roge as well as search of house of accused no.4 Suhas Roge.

During the search of house of accused Suhas Roge, I.O. seized three

mobiles from dickey of 'Activa' Scooter.

...11/



11. On 21/6/2008, I.O. arrested accused Kiran Amle. On the

next day, he was produced before the Judicial Magistrate First Class,

Alibaug, who committed him to the police custody. On 23/6/2008,

they went to Daman along with accused Suhas Roge for taking the

search of wanted accused Jaya Chheda, but she was not found. On

19/6/2008, he recorded the statement of Vinod Bhagat, who is the

brother of the deceased Suresh Bhagat. On 29/6/2008, he recorded

the statement of Rakesh Sawant, whose mobile was used by Suhas

Roge. On 30/6/2008, he issued a wireless message to all the

Commissionarate as well as District Superintendent of Police for

causing the arrest of wanted accused Jaya Chheda.

12. On 1/7/2008, he arrested approver Kiran Pujari. On the

same day, he received the communication from the Director General

of Police regarding transfer of investigation of C.R.No.25/2008 of

Poynad police station to Crime Branch, Mumbai. Accordingly, he

submitted his report to Crime Branch, Mumbai and handed over the

investigation to I.O. P.I. R.P. Mahale.

13. Earlier on 12/6/2008, P.I. Mahale had received the

complaint lodged by deceased Suresh Bhagat, on 13/3/2008, with the

Commissioner of Police, Mumbai, about the threats to his life from

...12/



Jaya Chheda, Suhas Roge, Hitesh Bhagat and Kiran Pujari in

connection with usurping his Mataka business. On 13/6/2008, at

about 4.00 p.m., he received the information of the accident.

Immediately, he rushed to Poynad police station i.e. on 14/6/2008, at

about 2.00 a.m., but none of the police officer of Poynad police station

met him. On 1/7/2008, investigation of the crime itself was

transferred to DCBCID. On 2/7/2008, I.O. P.I. Mahale arrested the

accused Kiran Pujari in this crime under the arrest panchanama. He

seized three mobiles from the possession of Kiran Pujari. On

4/7/2008, he arrested the accused Jaya Chheda under the arrest

panchanama. He found that provisions of M.C.O.C. Act are

applicable to the present case. Therefore, on 6/7/2008, he sent the

proposal of M.C.O.C. Act to the superiors. On 8/7/2008, he caused to

be arrested the accused Hitesh Bhagat by sending his colleagues to

Hotel 'SunNSand' at Goa. During the search of the accused Hitesh

Bhagat, I.O. seized three mobiles, wrist watch and cash of

Rs.11,39,000/ from his possession. Accordingly, he drew the arrest as

well as seizure panchanama. On 9/7/2008, Joint Commissioner of

Police (Crime), approved the proposal of M.C.O.C.. Thereafter, on

12/7/2008, investigation was handed over to A.C.P. Duraphe.

...13/



14. From 9/7/2008, I.O. P.I. Mahale carried out the further

investigation under the supervision of A.C.P. Duraphe. On 12/7/2008,

he recorded the statement of Advocate Somet Shirsat. During the

investigation, I.O. recorded supplementary statement of Joseph John

Madanlal, on 13/7/2008, statement of Anthony Raj Nannya Dravid,

on 14/7/2008, statement of Vinod Naik on 5/8/2008, statement of

Ganesh Rane on 7/8/2008, statements of Vinayak Pawar and Mohd.

Kashif Abdul Majid on 13/8/2008 and 16/8/2008 respectively,

statement of Ritesh Mehta on 27/8/2008, statements of Sitaram Patil,

Amit Patil and Abdulla Khan and supplementary statement of Nitin

Chavan, on 29/8/2008, statement of witness Rahul Mehta on

3/9/2008, supplementary statement of Rahul Mehta and Ritesh

Mehta, on 4/9/2008. He further recorded statement of Nitin Chavan ,

on 5/9/2008, statement of Deepak Devrukhkar and supplementary

statement of Vinod Bhagat, on 8/9/2008 and 12/9/2008 respectively .

15. On 9/7/2008, I.O. arrested the accused Jaya Chheda,

Hitesh Bhagat and Kiran Pujari under M.C.O.C. Act. He produced

them before the Special Court on 10/7/2008 for further police custody

to carry out the investigation. On 10/7/2008, he rearrested the

accused Pravin Shetty, Ajjimuddin Shaikh, Harish Mandvikar, Suhas

Roge and Kiran Amle and obtained their police custody. During

...14/



further investigation, i.e. on 21/7/2008, he issued a letter of request to

the learned Chief Metropolitan Magistrate to record the statement

u/s. 164 of Code of Criminal Procedure (Cr.P.C.) of the witnesses

Somet Shirsat, Joseph Nadar and Joseph Madanlal. On 25/7/2008, he

obtained the certified copy of the exemption application dated

13/6/2008, filed on behalf of the accused Hitesh Bhagat in Alibaug

Court. During the investigation, he obtained the call detail reports of

all the respective mobiles. He also called the record from Hotels i.e.

'ITC Grand', Hyatt, Ramada Plaza and Grand Hyatt, in which the

accused Hitesh Bhagat had stayed upto his arrest. On 16/9/2009, he

obtained the paper cutting of newspaper 'MidDay'. On 17/9/2008,

I.O. A.C.P. Duraphe forwarded the letter to the learned Chief

Metropolitan Magistrate for recording the statements of the

witnesses u/s. 164 of Code of Criminal Procedure. On 30/9/2008, he

also obtained the papers from Hotel 'J.W. Marriate' where the

accused Hitesh Bhagat had stayed. After completion of investigation,

i.e. on 3/10/2008, I.O. A.C.P. Duraphe filed the chargesheet before

the Special Court.

16. Even after filing of chargesheet, I.O. issued a letter to the

Chief Government Pleader and obtained the certified copies of the

Writ Petition No.1013/2008 as well as the copy of the affidavit of Jaya

...15/



Bhagat in respect of Writ Petition No.2486/2005. Thereafter, he

recorded the statement of Sanjay Shirke and Joseph Rodrigues. On

9/11/2009, he forwarded witnesses Joseph Rodrigues before the

learned Metropolitan Magistrate, 28th Court, for recording his

statement u/s. 164 of Code of Criminal Procedure. He also obtained

the copy of the application form of prepaid mobile of accused Harish

Mandvikar (X63).

17. During the pendency of trial, accused no.4 Suhas Roge

filed an application (Exh.26) to discharge him from the provisions of

M.C.O.C.Act. After giving opportunities to both the parties, accused

are discharged by the learned Special Judge for the offence

punishable u/s.3(1)(1) of M.C.O.C. Act, by order dated 24/4/2009, with

a direction to produce the accused before Sessions Court on 5/5/2009.

18. The charge (Exh.264) was framed by my learned

Predecessor against the accused for the offence punishable u/s. 120

B, 302 r/w. 34 of Indian Penal Code, to which accused pleaded not

guilty and claimed to be tried.

19. During the trial i.e. on 8/8/2011 and on 04/04/2012,

accused no.6 Kiran Raghu Pujari and accused no.2 Ajimuddin

...16/



Maulasahab Shaikh filed applications u/s. 306 of Cr.P.C. (Exh.316 &

Exh.656 respectively), before my Ld. Predecessor, for tender of

pardon to the accomplice. They were allowed on the same day.

Accordingly, my Ld. Predecessor framed the charge vide Exh.264A &

Exh.264B respectively against remaining accused, which was read

over and explained to accused in vernacular, to which accused

pleaded not guilty and claimed to be tried. Their defence is of total

denial and of false implication.

20. Considering the facts, the evidence and the material on

record, following points arise for my determination. My findings

thereon are as under for the reasons discussed below:

POINTS FINDINGS

1. Whether the death of the deceased Suresh Bhagat and others is accidental or homicidal ?

Homicidal

2. Whether prosecution has proved that on or before 13/6/2008, at Mumbai, accused hatched conspiracy with approver Ajimuddin Shaikh and approver Kiran Pujari to kill Suresh Bhagat and thereby committed an offence punishable u/s. 120B of Indian Penal Code ?

In the affirmative

3. Whether prosecution has further proved that on 13/6/2008, at about 1.15 p.m., within the vicinity of village Shahabaj, AlibaugPen Road,

In the affirmative

...17/



the accused, in furtherance of their common intention, intentionally and knowingly caused the death of Suresh Bhagat and six others and thereby committed an offence punishable u/s. 302 r/w. 34 of Indian Penal Code?

4. Whether prosecution further proved that on the same date, time and place, accused no.1, intentionally and knowingly committed the murder of Suresh Bhagat and six others by forcibly dashing his truck no.MH04CA4445 to Scorpio in which Suresh Bhagat and others were traveling and thereby committed an offence punishable u/s. 302 of Indian Penal Code ?

In the affirmative

5. What order ? Accused nos.1,3,4,5,7 & 8 are convicted

REASONS

AS TO POINT NOS.1 TO 4 :

21. The facts and evidence in this case are such that the

discussion on all the points would be intermixing. Therefore, it is

necessary to discuss the point under one chapter. It is necessary to

mention here that evidence of all eighty (80) witnesses was recorded

by my Ld. Predecessors.

...18/



22. In support of their case, the prosecution has examined

informant/complainant, investigating officers (I.O.), who carried out

the investigation and took the help of other police officers. They are

informant/complainant Janardan Dhaya Mokal (P.W.01Exh.327),

I.O. P.I. G.C. Hiremath (P.W.71Exh.725), I.O. Sr.P.I. Vishnu

Kashinath More (P.W.78Exh.759), I.O. P.I. Ramesh P. Mahale

(P.W.79Exh.782) and I.O. A.C.P. Ashok Tukaram Duraphe (P.W.80

Exh.809). Other police officers are A.S.I. Manoj Manohar More

(P.W.06 – Exh.410), P.I. Dinesh Bhalchandra Joshi (P.W.14

Exh.440), A.P.I.Mohd. Azam Yusuf Patel (P.W.48Exh.583), P.S.I.

Sambhaji T. Dhamankar (P.W.50Exh.591), A.P.I. Vinayak D.

Gaikwad (P.W.51Exh.603A), P.I. Sheetal Vilasrao Raut (P.W.53

Exh.613), P.I. Keshav Sakharam Shengale (P.W.56Exh.626), A.P.I.

Santosh D. Barge (P.W.69Exh.716), P.N. Girish Bhagwan Anerao

(P.W.70Exh.719), P.S.I. Baban Zipro Pawar (P.W.73Exh.741), P.I.

Pundalik V. Nigade (P.W.74Exh.743) and A.P.I. Rajkumar

Dattatray Waghchaure (P.W.76Exh.751).

23. The prosecution relied on the testimony of approvers

Kiran Raghu Pujari (P.W.05Exh.379) and Ajimuddin Maulasab

Shaikh (P.W.62 Exh.669). To corroborate the testimony of

...19/



approvers, prosecution relies on the testimony of Advocate Somet S.

Shirsat (P.W.02Exh.357), who is Advocate for accused no.8 Hitesh

Bhagat in N.D.P.S. case in Alibaug Court and Advocate Suhas

Tukaram Gaikwad (P.W.75Exh.746), who was Advocate of deceased

Suresh Bhagat in Writ Petition No.1013/2008 before Hon'ble High

Court and who drafted the representation/complaint as per the

instructions of deceased Suresh Bhagat and lodged the complaint

before the Commissioner of Police, Mumbai.

24. Prosecution further relies on the testimony of learned

Metropolitan Magistrate Shri A.D. Kshirsagar (P.W.72Exh.736),

who recorded the statement of witness Joseph John Mandanlal and

other witnesses. Dr. Smt. Shashikala K. Desai (P.W.22Exh.470),

who examined the accused no.1 driver Pravin Shetty on the day of

the incident i.e. on 13/6/2008. R.T.O. Inspector Jayraj P. Thanekar

(P.W.23Exh.472), who examined both the vehicles in question.

25. Prosecution also relies on the testimonies of the relatives

of the deceased i.e. Varsha Tushar Shah (P.W.17Exh.456), who is

the wife of deceased Tushar Shah, Vinod Kalyanji Bhagat (P.W.32

Exh.511), who is the brother of deceased Suresh Bhagat and Ashok

...20/



Habu Kamble (P.W.45Exh.576), who is the father of deceased

Kamlesh Kamble.

26. In support of their case, prosecution has also examined

the Medical Officers, who carried out the post mortem of the

deceased at Civil Hospital, Alibaug and Sion Hospital. They are Dr.

Vijaykumar P. Kurade (P.W.33Exh.531), Dr. Shripad M. Kondekar

(P.W.34Exh.535), Dr. Sunil Ganpatrao Bhopale (P.W.36Exh.537),

Dr.Anil Shivling Phutane (P.W.37Exh.541) and Dr. Revati Ajay

Desai (P.W.46Exh.577).

27. Prosecution relies on the testimonies of the witnesses i.e.

Anand Vishram Patil (P.W.07Exh.415), who is the partner of the

approver Ajimuddin Shaikh, waiter Daulat Tukaram Bade (P.W.24

Exh.480) and Manager Nitin Tukaram Mhatre (P.W.25Exh.481) of

Hotel Sai Kutir, Wadkhal Naka, earlier bodyguard of the accused

no.7 Jaya Chheda namely Latish @ Satish N. Shetty (P.W.30

Exh.505), Mr. Vinodkumar Menon (P.W.35Exh.535),City Editor of

newspaper 'MidDay', photographers Mahesh Kisan Musale (P.W.49

Exh.586), and Vijay Narayan Chavarkar (P.W.54Exh.618).

...21/



28. Prosecution examined the panchas on various

panchanamas. They are Shailesh Shivram Patil (P.W.27Exh.491),

Nitin Shravan Dhepe (P.W.28Exh.495), Bhalchandra J. Gharat

(P.W.29Exh.501), Shivram Vasant Khawanekar (P.W.31Exh.507)

and Dhananjay C. Mhatre (P.W.52Exh.608).

29. Prosecution examined the subscribers on the record of the

mobile companies but the mobiles, which were found in possession of

the accused. They are Vinayak Dinkar Pawar (P.W.10Exh.428),

Mohd. Kashif Abdul Majid (P.W.11Exh.432), Rakesh Sawant

(P.W.12Exh.434), Amit Pandurang Patil (P.W.19Exh.459),

Pandurang Patil (P.W.21Exh.464) and Deepak Devrukhar (P.W.26

Exh.488).

30. To prove the call detail as well as subscriber detail records

of the mobiles, prosecution has examined the Nodal Officer of

Reliance Company, Rajesh S. Gaikwad (P.W.55Exh.623), Senior

Manager, B.P.L. Mobile, Sudhakar Devram Musale (P.W.57

Exh.632), Nodal Officer of Bharati Airtel, Sunil Suhaschandra

Tiwari (P.W.60Exh.642), Darshansingh Randhawa, Senior Manager

of TATA Tele Services (Old Huges Tele Communication) (P.W.61

...22/



Exh.651), Nodal Officer of Max Touch (Vodafone) Vikas Narayan

Phulkar (P.W.63Exh.681), Assistant Nodal Officer of Airtel Yogesh

Rajapurkar (P.W.64Exh.693) and Nodal Officer of Bharati Airtel

Chetan Srirang More (P.W.66Exh.698).

31. To prove the case against accused no.4 Suhas Roge,

prosecution has examined witnesses Vinod Madan Naik (P.W.15

Exh.443), Joseph Robert Rodrigues (P.W.16Exh.449) and Sanjay

Ramchandra Shirke (P.W.68Exh.711). The prosecution examined

Sandeep B. Shirodkar (P.W.59Exh.638), who is the cousin of

accused Kiran Amle and resident of Mhapusa, Goa, witness Rahul

S. Kurtadkar (P.W.20Exh.463), who is the driver of approver Kiran

Pujari.

32. To prove the conspiracy of accused Harish Mandvikar,

prosecution has examined the witness by name Joseph Mangesh

Nadar (P.W.08Exh.422), Sales Manager of “Om Cars” Mahesh R.

Yadav (P.W.09Exh.424), Joseph John Madanlal (P.W.13Exh.436),

Sunil Zilu Jangle (P.W.18Exh.458), Arvind A. Modasia (P.W.39

Exh.548), Ganesh Jagdish Rane (P.W.67Exh.709) and Anthony Raj

Nanya Dravid (P.W.77Exh.756).

...23/



33. To prove the case against accused Hitesh Bhagat, the

prosecution examined his friends. They are Ritesh Pratap Mehta

(P.W.03Exh.365), Rahul Rajesh Mehta (P.W.42Exh.564), and

Abdulla Amanulla Khan (P.W.43Exh.566).

34. To support the stay as well as the travel of the accused

Hitesh Bhagat, the prosecution has examined the travel agent Nitin

Prabhakar Chavan (P.W.04Exh.372), Team Leader of Kuoni Travels

Rajendra J. Kamble (P.W.38Exh.545), Manager of Hotel 'Ramada

Plaza' Michael Remedios (P.W.40Exh.550), Assistant Manager of

Hotel 'Hyatt Regency' Bhushan Madhukar Rane (P.W.41Exh.556),

Manager of 'ITC Grand' Satish Madhukar Vaidya (P.W.44Exh.570),

Manager of 'Grand Hyatt' Tushar Kishor Mali (P.W.47Exh.581),

representative of Hotel 'SunNSand', Goa, Preetam C. Mahadik

(P.W.58Exh.636) and Trainee Manager of Hotel 'SunNSand', Goa,

Ajay Bensingh Pal (P.W.65Exh.696).

35. In support of their case, the prosecution relies on the

various documents i.e. complaint/First Information Report

(Exh.330), format First Information Report (Exh.330A),

representation/ complaint of deceased Suresh Bhagat, dated

13/3/2008, about threats to his life (Exh.747), certified copy of Writ

...24/



Petition No.1013/2008 before Hon'ble High Court (Exh.748), English

Article regarding the news given by P.W.35 Vijaykumar Menon,

Editor of 'MidDay' (Exh.536) as well as xerox copy of the Gujarathi

'MidDay' (X53A), accident reports form of motor vehicle Scorpio

and the truck issued by P.W.23 J.P. Thanekar (Exh.473 and

Exh.474).

36. The prosecution relies on the statements u/s. 164 of

Cr.P.C. recorded by the Ld. Metropolitan Magistrates and Ld. Chief

Metropolitan Magistrate of the approver and witnesses i.e. statement

of P.W.05 Kiran Pujari (Exh.340), statement of P.W.62 Ajimuddin

Shaikh (Exh.657A), statement of P.W.13 Joseph John Madanlal

(Exh.737), statement of P.W.02 Advocate Somet Shirsat (Exh.359),

statement of P.W.03 Ritesh Mehta (Exh.367), statement of P.W.15

Vinod Madan Naik (Exh.444), statement of P.W.16 Joseph Robert

Rodrigues (Exh.883).

37. The prosecution also relies on the statements of the

witnesses recorded by the investigating officer i.e. portion marked 'A'

and 'B' of Joseph John Madanlal (Exh.752 and 753), portion marked

'A' of statement of Sunil Jangle (Exh.754), portion marked 'A' of

...25/



memorandum panchanama of accused Harish Mandvikar dated

19/6/2008 (Exh.760), portion marked 'A' of the statement of Arvind

Modasia (Exh.768), portion marked 'A' and 'B' of the statement of

Rakesh Sawant (Exh.771 and Exh.772), portion marked A to C in

the statement of Kiran Pujari (Exh.806 to Exh.808), portion marked

'A' of supplementary statement of Joseph John Madanlal (Exh.790),

portion marked A to G of statement of Anthony Raj Nanya Dravid

(Exh.791 to Exh.797) and portion marked 'A' and 'B' of statement of

Ganesh Rane (Exh.798 and Exh.799) to prove the contradictions.

38. The prosecution further relies on the inquest panchanama

of deceased Kamlesh Salunkhe (Exh.726), inquest panchanama of

deceased Valmik Pawar (Exh.727), inquest panchanama of deceased

Tushar Shah (Exh.728), inquest panchanama of deceased Suresh

Bhagat (Exh.729), inquest panchanama of deceased Milind Namdeo

Kadam (Exh.730) and inquest panchanama of deceased Dharmendra

Kumar Singh (Exh.731).

39. The prosecution also relies on the post mortem reports as

well as advanced death certificates of deceased Kamlesh Salunkhe

(Exh.532 & Exh.532A), deceased Tushar Shah (Exh.534 &

...26/



Exh.534A), deceased Dharmendra Kumar Singh (Exh.538 &

Exh.538A), deceased Milind Namdeo Kadam (Exh.539 & Exh.539

A), deceased Valmik Pawar (Exh.542 & Exh.542A) and deceased

Suresh Bhagat (Exh.543 & Exh.543A) as well as post mortem

report of Kamlesh Kamble issued by Sion Hospital (Exh.578).

40. The prosecution relies on the receipt of the photograph bill

(Exh.587), 20 photographs of the deceased (Exh.589 colly.), three

photographs of the vehicles in question (Exh.610 to Exh.612),

Compact Disk (C.D.) and five photographs of both the vehicles

(Exh.619 & Exh.620 colly.).

41. The prosecution relies on the medical papers of the

accused Pravin Shetty dated 13/6/2008 of Vibha Care Home

(Exh.471) and certified copy of the exemption application of accused

no.8 Hitesh Bhagat in N.D.P.S. Special Case No.2/2006 before

Sessions Court, Alibaug (Exh.358).

42. The prosecution relies on the memorandum panchanama

of accused Harish Mandvikar and recovery u/s.27 of Evidence Act of

Rs.8 lakhs from Anthony Raj Nanya Dravid (Exh.493), arrest

panchanama of accused no.1 Pravin Shetty & approver Ajimuddin

...27/



Shaikh (Exh.496 & Exh.496A), personal search panchanama of

accused Kiran Amle and seizure of car bearing no.MH02AP4563,

dtd. 21/6/2008 (Exh.508), arrest panchanama of accused no.4 Suhas

Roge (Exh.592), arrest panchanama of accused Kiran Amle

(Exh.593 colly.), spot panchanama, dtd.13/6/2008, regarding Scorpio

& Truck (Exh.609), memorandum and recovery panchanama of Rs.4

lakhs, at the instance of approver Kiran Pujari (Exh.627 & Exh.627

A), memorandum and recovery panchanama of Maruti car bearing

no.MH04BS9412, dtd.13/7/2008, at the instance of accused Harish

Mandivkar (Exh.628 & Exh.628A), panchanama dtd.13/7/2008 of

seizure of two mobiles, SIM card, scribbling papers and itinerary air

ticket,etc.from the possession of Panaji Police (Exh.637),

panchanama dtd.18/6/2008 in respect of search of vehicle i.e. Scorpio

& seizure of one 32 bore pistol,6 rounds & two mobile phones

(Exh.733), panchanama dtd.13/6/2008 of seizure of the blue colour

Nike bag, chopper and mobile (Exh.734), arrest & personal search

panchanama dtd.2/7/2008 of approver Kiran Pujari (Exh.786), arrest

& personal search panchanama of accused Jaya Chheda dated

4/7/2008 (Exh.788) and arrest & personal search panchanama of

accused Hitesh Bhagat, dtd. 8/7/2008, seizure of cash Rs.11,39,000/,

wrist watch and three mobiles (Exh.789).

...28/



43. The prosecution further relies on the house search of

accused no.1 Pravin Shetty and approver Ajimuddin Shaikh, dated

17/6/2008 (Exh.614), house search panchanama of accused no.1

Pravin Shetty dated 20/6/2008 (Exh.763), seizure panchanama dated

18/6/2008, of papers of Maruti Swift car bearing no.MH02AP4563

(Exh.615), memorandum panchanama of accused Harish Mandvikar

and recovery of Rs.23,50,000/ (Exh.760 & Exh.761), house search

panchanama and seizure of three mobiles from the house of accused

Harish Mandvikar, dated 20/6/2008 (Exh.762), panchanama of house

search of accused Jaya Chheda, dated 21/6/2008 (Exh.769), recovery

of mobile of accused Harish Mandvikar from Santosh Gupta dated

22/6/2008 (Exh.604), recovery panchanama of mobile of accused

Kiran Amle from the house of P.W.59 Sandeep Shirodkar, dated

23/6/2008 (Exh.717), house search of accused Suhas Roge and

recovery of three mobiles from the dickey of his Activa which is in

front of his house dated 21/6/2008 (Exh.770).

44. The prosecution relies on the call detail reports as well as

the correspondence between the investigating officer and respective

mobile companies. They relied on the letter issued by Reliance

Communication to the Deputy Commissioner of Police in respect of

mobile bearing no.9324260303 of Ajimuddin Shaikh (Exh.624), its

...29/



call detail reports (Exh.625), office copy of the letter by Additional

Commissioner of Police issued to B.P.L. Communication and their

reply dated 26/8/2008 (Exh.633 & Exh.634), certified copy of

subscriber registration form of BPL Mobile of Pandurang Patil along

with xerox copy of his ration card, electricity bill and driving license

(X51 & X49 colly.) call detail reports of mobile bearing

no.9870557511 of Pandurang Patil which was found in possession of

Kiran Pujari (Exh.635), office copy of the letter issued by the

Additional Commissioner of Police to Bharati Airtel dated 28/7/2008

(Exh.643) and their reply dated 8/8/2008 (Exh.644), subscriber

enrollment form of Advocate Somet Shirsat (Exh.645), subscriber

detail report i.e. Airtel prepaid application form of accused Kiran B.

Amle of his mobile no.9867547490 along with self attested xerox copy

of driving license (Exh.646), call detail report of mobile

no.9892222379 of witness Advocate Somet Shirsat (Exh.647), call

detail report of mobile no.9867547490 of accused Kiran Amle

(Exh.648), letter issued by TATA Tele Services on 9/8/2008 to the

Additional Commissioner of Police regarding mobile no.9222003157

of P.W.11 Mohd. Qasif (Exh.652), call detail report of mobile

no.9222003157 (Exh.653) and its certificate (Exh.654) as well as its

cell Id. address (Exh.655), subscriber detail report of mobile

no.9324260303 of P.W.10 V.D. Pawar (X44 Exh.429 colly.), xerox

...30/



copy of the license of Mohd. Qasif (X45) and his original license

(Article 2) and certified copy of subscriber detail report of Mohd.

Qasif (X58).

45. The prosecution further relies on subscriber detail reports

of accused Pravin Shetty of mobile No.9967735462 (X64) and its call

detail report (Exh.694X64), letter issued by Bharati Airtel Ltd.

along with its cell Id address (Exh.695 colly.), letter issued by

Superintendent of Police, Alibaug to the Manager, Vodafone dated

23/6/2008 (Exh.682), copy of letter issued by Additional

Commissioner of Police dated 31/7/2008 & 8/8/2008 (Exh.683 &

Exh.684), original prepaid application form of Rakesh Sawant of his

mobile no.9920960871 along with its self attested copy of driving

license (X59), its call detail report and cell site list of mobile

no.9920960871 (Exh.685 & Exh.686), subscriber detail report of

Mobile No.9930159144 which is in the name of Narendra N. Roge (X

60) and its call detail report (Exh.687).

46. The prosecution further relies on subscriber detail report

i.e. prepaid application form of Anthony Raj Nannya Dravid in

respect of his mobile no.9833110177 (X61Exh.757), xerox copy of his

...31/



passport (Exh.758) and its call detail report (Exh.688), subscriber

detail report i.e. colour xerox copy of application form of Orange

Company of accused Jaya Chheda along with address proof and proof

of identity i.e. xerox copy of PAN card (X62), call detail report of her

mobile no.9833418884 (Exh.689 colly.),

47. The prosecution further relies on subscriber detail report

i.e. original prepaid application form of accused Harish M. Ganiga in

respect of mobile no.9833507523 along with self attested xerox copy

of driving license (X63), its call detail report (Exh.690). They also

relied on the certificate issued by Bharati Airtel in respect of mobile

no.9867547490 and 9967736462 (Exh.699), call detail report of

mobile no.9867547490 (Exh.700), its cell Id report (Exh.701), call

detail report of mobile no. 9967736462 (Exh.702), its cell site list

(Exh.703) and their cell site list as well as cell site address (Exh.706

colly.). Copy of letter issued by Additional Commissioner of Police to

the Nodal Officer, Bharati Airtel, dated 9/8/2008, in respect of

requirements of details of mobile no.9967736462 (X57Exh.720).

48. The prosecution relies on the muddemal receipt

(Exh.718), office copy of the wireless issued by investigating officer

G.C. Hiremath to Sr.P.I. dated 14/6/2008 to R.T.O., Alibaug

...32/



(Exh.732), office copy of covering letter dated 19/6/2008 (Exh.735),

office order issued by Joint Commissioner of Police (Crime) for

transfer of investigation to DCBCID (Exh.783), letter dated 1/7/2008

issued by LCB (Exh.784), certified copy of the station diary extract

(Exh.785), letter dated 3/7/2008 (Exh.787), letter issued by

Additional Commissioner of Police for transferring the inquiry of

application of Suresh Bhagat (Exh.800), copy of reply affidavit filed

in Writ Petition No.1013/2008 (Exh.801), office copy of letter dated

18/7/2008 issued to Additional Commissioner of Police (Exh.810),

office copy of letter issued to DCP, SBII (Exh.811) and letter dated

12/9/2008 (Exh.812).

49. In support of their case, the prosecution relies on the

documents/hotel bills in respect of accused no.8 Hitesh Bhagat i.e.

xerox copy of the passport of P.W.03 (Exh.366), hotel bills (Exh.373),

reply letter dated 29/7/2008 sent to Additional Commissioner of

Police, Crime Branch (Exh.441), departure card (Exh.442), letter

dated 6/9/2008 (Exh.546), letter informing booking (Exh.547 colly.),

'C' Form (Registration form) (Exh.551), letter dated 2/9/2008

(Exh.557), card (two pages) (Exh.558A), Email Id of witness Rahul

Mehta page 517 (Exh.565), information with covering letter dated

...33/



2/9/2008 to DCBCID by P.W.44 (Exh.571), photocopies of the bills

(Exh.573), application along with affidavit by P.W.47 (Exh.582),

extract of SunnSand Hotel register (Exh.697).

50. Besides this the prosecution also relies on the xerox copy

of the air tickets of Hitesh Bhagat and P.W.03 Ritesh Mehta (Article

1 colly. and Article 1/1), copy of R.C. Book of MH02AP4563

(Article 1 colly.) and toll receipt (Article 28).

51. During cross examination of P.W.05 approver Kiran Pujari

admitted the documents i.e. panchanama in respect of the seizure of

the documents from his possession vide Exh.393, insurance policy of

car along with duplicate (Exh.395), P.U.C. Certificate (Exh.396),

visiting card of Kiran Pujari (Exh.397), identity card of Kiran Pujari

of Mumbai Crime report (Exh.398), receipt of the license of revolver

(Exh.399), office copy of letter dated 7/9/2007 (Exh.400), permission

of revolver (Exh.401), xerox copy of letter dated 27/3/2007 alleged to

be issued by M.L.A. Sanjay Dina Patil (Exh.402), service book of

motor car (Exh.403), affidavit of Giyasuddin and one Yusuf Khan

dated 15/5/2008 (Exh.404 and Exh.405).

...34/



52. During cross examination of the witnesses, defence relies

on the various documents i.e. Google information in respect of the

failure of brakes of the motor vehicle from 'crashforensics.com'

(Exh.476 and Exh.477), copy of the insurance policy of Scorpio

(Exh.478), certified copy of the chargesheet (Exh.515), copy of

complaint dated 21/9/2006 filed by accused Jaya Chheda (Exh.516),

copy of complaint dated 24/6/2009 filed by Jaya Chheda (Exh.517),

copy of application for bringing the legal heirs on record along with

death certificate of Maniben (Exh.519 colly.), copies of applications

(RAE Suit no.663/1082/2005 & RAE Suit no.665/1082/2005) (Exh.

520 colly. to Exh.522 colly.), copy of chamber summons in Suit

no.3197/2008 (Exh.526), certified copy of Special Leave Application

no.5084/2005 against the order in Criminal Application No.4410/2002

(Exh.527 colly.), extract of accidents near the scene of offence

(Exh.738), certified copy of order passed in Writ Petition

No.1013/2008 (Exh.749), copy of report dtd.16/6/2008 to Chief

Judicial Magistrate, Alibaug (Exh.773), acknowledgement receipt

dated 13/6/2008 (Exh.776), receipt dtd. 13/6/2008 regarding handing

over the articles to API Hiremath (Exh.777), letter dated 16/6/2008

(Exh.778), letter dated 18/6/2008 of Poynad police station (Exh.779)

& letter dated 18/6/2008 issued by API Hiremath (Exh.780).

...35/



53. At the end, I have heard extensive arguments advanced by

the learned Spl.P.P. and the learned defence Counsel for the parties

have also filed the exhaustive written notes of arguments.

Learned Spl.P.P. Ms. Kalpana Chavan submitted that the

evidence on record clearly establishes the prosecution theory that the

accused hatched the conspiracy and thereby committed murder of

deceased Suresh Bhagat and six innocent persons. The accused no.7

is the mother of accused no.8 and divorcee of deceased Suresh

Bhagat. Though accused no.8 was residing with deceased Suresh

Bhagat in Worli, he was not only in visiting terms but in close contact

with his mother i.e. accused no.7 Jaya Chheda. Accused no.4 Suhas

Roge was in visiting terms and used to frequently go to the house of

accused Jaya Chheda at Pant Nagar, Ghatkopar. By examining the

witnesses, prosecution proved that the accused hatched the

conspiracy and contracted/give 'supari' to accused Harish Mandvikar

to eliminate Suresh Bhagat in accident while returning from Alibaug

Court. As a part of the conspiracy, on 15/5/2008, with a view to

ensure that accused no.8 Hitesh Bhagat did not travel with deceased

Suresh Bhagat, Jaya Chheda instructed Advocate Somet Shirsat that

accused Hitesh Bhagat is not feeling and to seek the exemption.

Again on 13/6/2008, she ensured Hitesh Bhagat's absence in Alibaug

Court by again asking Advocate Somet to seek exemption for the

...36/



attendance in Alibaug Court. While deceased Suresh Bhagat and

others were returning, accused no.1 Pravin Shetty drove his truck

from the opposite side and thrust Scorpio and thereby, Suresh

Bhagat and six innocent persons died. It was not a mere accident, but

it was a plot of intentionally and knowingly committed the murder.

After the incident, accused no.1 Pravin Shetty ran away from the spot

and reached at Hotel Sai Kutir and called the accused Harish

Mandvikar and Kiran Amle. At the time of incident as well as prior

to the incident, accused were in continuous contact with each other

on their mobiles. Prosecution brought CDR and SDR of their

respective phones by examining the Nodal Officers of respective

companies. The evidence in respect of mobiles clearly establishes the

conspiracy and murder. At the same time, as per cell Id, presence of

the accused at specific location is also brought on record. The chart

(Exh.850) prepared for the ready reference from the substantive

evidence of CDR and Cell Id transpires that accused were in contact

with each other as well as contacted approver Ajimuddin Shaikh,

Advocate Somet Shirsat and Anthony Raj Nannya Dravid.

54. Learned Spl.P.P. further submitted that though the

pancha witnesses did not support, the panchanamas are duly proved

by examining the IO as well as the approver and witnesses. Extra

...37/



judicial confession of P.W.04 has been proved by P.W.15 Vinod Naik,

P.W.16 Joseph Robert Rodrigues. Though P.W.68 Sanjay Shirke

turned hostile, the witness admitted that on 13/6/2008, accused no.4

Suhas Roge, P.W.15 Vinod Naik and P.W.16 Joseph Rodrigues, had a

meeting in his house. Thereby, prosecution has proved extra judicial

confession of P.W.16. By examining P.W.22 Dr. S.K. Desai, it has been

brought on record that due to headoncollusion, seven persons were

killed as well as accused no.1 Pravin Shetty sustained the injuries on

his nose and forehead. Due to headon collusion/heavy impact, all the

incumbents in the jeep died as they sustained the injuries to their

head and thereby, their brains were ruptured and pierced from the

skull. P.W.03 Ritesh Mehta, P.W.42 and P.W.43 Abdulla Khan are the

friends of accused no.8 Hitesh Bhagat. By examining the witnesses

i.e. Managers and the travel agent, it has been brought on record by

the prosecution that immediately after the death of Suresh Bhagat,

accused Hitesh Bhagat had stayed in different Hotels by hiding his

identity i.e. stayed in different names of his friends i.e. P.W.03,

P.W.42 and P.W.43. The complaint (Exh.747) and Writ Petition

(Exh.748) of the deceased Suresh Bhagat are the material piece of

evidence in respect of cause of his death, and can be treated as a

dying declaration. The chain of circumstances clearly establishes the

guilt of the accused. Thus, prosecution has proved that accused

...38/



hatched the conspiracy and committed the murder of deceased

Suresh Bhagat. In addition to her exhaustive arguments, learned

Spl.P.P. Ms. Kalpana Chavan filed written notes of arguments

(Exh.857).

55. In reply, learned Senior Advocate Shri Adhik Shirodkar

for accused no.4 submitted that it is an unfortunate accident, but,

prosecution has given a colour of deliberate collusion as a part of the

conspiracy of commission of the murder. As per the statement of

P.W.06 ASI More, statements of 5 to 6 eye witnesses have been

recorded. But, the prosecution withhold the evidence of eye witnesses

and suppressed the material evidence. Possibility of accident due to

overtaking cannot be ruled out. While drawing the spot panchanama,

topography, situation of the road, skid marks and tyre marks has not

been brought on record. No sketch map is filed on record. It is

brought on record that deceased Suresh Bhagat was addict of opium.

But prosecution never preserved the viscera of the deceased Suresh

Bhagat as well as other deceased. No proper explanation has been

given by the prosecution regarding erasions in FIR. RTO inspector

never verified the brake system of both the vehicles. IO never

ascertained whether Scorpio driver was under the influence of drug

or liquor. Merely because IO PI Hiremath come to the conclusion that

...39/



driver of the truck is guilty. I.O. never carried out the proper

investigation.

56. Learned Sr. Advocate Shri Adhik Shirodkar further

submitted that while tendering the pardon to P.W.05 Kiran Pujari as

well as P.W.62 Ajimuddin Shaikh, prosecution did not follow the

parameters which are required by law. They were straight way

granted no objection without any condition. P.W.05 Kiran Pujari is an

extortionist and blackmailer. P.W.62 is examined at the fag end of the

case. Their evidence is exculpatory and not inculpatory. Therefore, it

is liable to be thrown away. At the same time, the witnesses on the

point of extra judicial confession are examined at belated stage.

Prosecution failed to explain the delay in examining P.W.16 Joseph

Rodrigues. Witness Sanjay Shirke is hostile. Testimony of P.W.15

Vinod Naik is based on inherent improbabilities. Their evidence is

hearsay evidence, therefore, it cannot be accepted.

57. Learned Sr. Advocate Shri Adhik Shirodkar further

submitted that P.W.17 Varsha Tushar Shah is a tutored witness.

P.W.32 Vinod Bhagat is having inimical terms with deceased Suresh

Bhagat as well as with accused no.7 and 8. It has come on record that

he approached LCB (Crime), Commissioner of Police as well as

...40/



approached the State government for the appointment of Spl.P.P.. It

was only because Suresh Bhagat has left huge property and to

eliminate the share of accused no.7 and 8, malicious investigation

has been carried out by the IO at the instance of P.W.32 Vinod

Bhagat. The evidence of P.W.02 Advocate Somet Shirsat has no

evidentiary value as it is within the ambit of privilege

communication u/s. 126 of Evidence Act. Almost all the panchas are

turned hostile. Therefore, prosecution has miserably failed to prove

the seizure as well as memorandum panchanamas. Complaint of

Suresh Bhagat as well as Writ Petition bearing no.1013/2008 cannot

be treated as dying declaration because Writ Petition has been

disposed of by the Hon'ble High Court on the ground that allegations

are articulated as a defence in N.D.P.S. case. While recording the

statements of witnesses u/s. 164 of Cr.P.C., Ld. Metropolitan

Magistrate has not followed proper procedure. The evidence on record

is full of omissions and contradictions. Prosecution miserably failed

to prove the commission of conspiracy as well as failed to complete

the chain of evidence. The evidence filed on record is unreliable,

therefore, prosecution miserably failed to prove the commission of

murder by hatching conspiracy with the other accused. Thereby,

prosecution miserably failed to prove the charges levelled against the

accused. IO filed the colourful and manipulated chargesheet with

...41/



malafide intention. In addition to his exhaustive arguments, learned

Senior Advocate Shri Adhik Shirodkar filed written notes of

arguments (Exh.859).

58. Learned Counsel Shri S.R. Pasbola for accused no.7

exhaustively reiterated the arguments regarding the spot and its

topography, privilege communication, extra judicial confession,

approver and circumstantial evidence. The accident has been labeled

as a homicidal death. At the most, it was rash and negligent driving

of the driver of Scorpio and thereby, IO failed to take report of CA of

driver of the jeep as well as Suresh Bhagat and others by taking the

viscera. Prosecution come up with the theory of circumstantial

evidence with criminal conspiracy. They have mainly relied on extra

judicial confessions and the evidence of approver. Their testimonies

are suffering from basic infirmities which is called as “particupus

criminus” as they are not inculpatory. The evidence of P.W.35

Vinodkumar Menon regarding newspaper article and news in 'Mid

Day' (Gujarathi) is not substantive piece of evidence. Media report

does not have evidentiary value. At the same time, the prosecution

never examined the translator who translated the news from English

to Gujarathi. Hon'ble High Court disposed of the Writ Petition on the

ground that deceased has raised the defence in N.D.P.S. cases.

...42/



Thereby, complaint and Writ Petition cannot be treated as a dying

declaration.

59. Learned Counsel Shri S.R. Pasbola further submitted that

as per the prosecution, mobile bearing no.9833418884 and mobile

no.9819492925 belongs to accused Jaya Chheda. P.W.80 IO A.C.P.

Duraphe admits that mobile no.9819492925 is in the name of Sharad

Avhad, though states that it was used by accused no.7 Jaya Chheda.

Nothing is filed on record by the prosecution that it was used by the

accused. Call detail record (Exh.689) is in respect of her mobile

no.9833418884. It does not transpires that accused no.7 was in

contact with any of the accused. The subscriber detail record are the

xerox copies. They are not proved by the prosecution. It cannot be

presumed that mobile is in the name of accused and thereby, they

used the same. Subscriber detail report and the cell Id. are not

electronic record. They are not exhibited for proving the same as per

the provisions of law. Prosecution never proved the identity of the

user or subscriber, who used the mobile at the relevant time.

Subscriber detail record (Exh.645 & Exh.646) are not electronic

record. Therefore, though they are marked as exhibit, it cannot be

read in evidence as they are not admissible in the evidence.

...43/



60. Learned Counsel Shri S.R. Pasbola also exhaustively

argued regarding the subscriber detail record, call detail record as

well as cell Ids of the respective mobiles, which were found in the

possession of the accused. He submitted that it is alleged that

subscriber detail record (X64) is of accused no.1 Pravin Shetty,

subscriber detail record (X63) is of Harish Mandvikar, subscriber

detail record (Exh.58 & X59) are of P.W.11 Mohd. Kasif and P.W.12

Rakesh Sawant. But they are alleged to be in possession of accused

Suhas Roge. Subscriber detail record (X51) is alleged to be of Kiran

Pujari, subscriber detail record (X62) alleged to be of accused Jaya

Chheda and so on. Subscriber detail records is not an electronic

record and they are the xerox copies. Therefore, it cannot be read in

evidence. Prosecution relied on call detail records of respective mobile

numbers i.e. 9892222379, 9324260303, 9870557511, 9222003157,

9920960871, 9930159144, 9920155555, 9867547490, 9833507523,

9833418884, 9967736462 and 9833110177. Almost all call detail

records do not bear the valid certificate which required as per the

provisions of Section 65B (4) of Evidence Act. Except TATA

Telecommunication, nobody has filed the certificate in the format.

Possibility of manipulation in the subscriber detail record as well as

call detail record and cell Id cannot be ruled out. The subscriber

detail records were filed by the concerned agencies. To prove the

...44/



subscriber detail records, prosecution never called the concerned

agency to prove the subscriber detail record. The cell Id and the call

details does not match with each other. There is a difference in the

call details. Prosecution never explained as to why the said difference

occurs. At the same time, roaming network is not shown in call detail

records. Call detail records do not reflect cell Ids. P.W.63 admitted

that Exh.686 and Exh.706 are manually prepared. Subscriber detail

record does not bears the date, logo of the Telecommunication

Company and signature of authorised person or concerned Nodal

Officer. Therefore, this record should not be relied upon. At the same

time, though subscriber detail record i.e. X64 of Pravin Shetty is

filed on record, prosecution never seized the mobile from the

possession of the accused no.1 Pravin Shetty. Call detail records of

Exh.694 and Exh.648 does not match with each other. At the same

time, prosecution never explained as to why they are not matched

with each other. It is necessary for the court to satisfy upon the

accuracy of the calls. One call reflects in one exhibit does not reflect

in another call detail record. It was necessary for the prosecution to

prove use of mobile by the person concerned. Cell Id are not

authenticate. They does not bear certificate in prescribed form.

Therefore, the inaccurate record of call detail record has no

evidentiary value, and does not inspire confidence.

...45/



61. Learned Counsel Shri S.R. Pasbola further submitted that

circumstantial evidence is to be established independently. There is

always possibility of conjunctures and surmises. Nothing is brought

on record to prove the motive viz. grabbing of mataka business after

the death of Suresh Bhagat. Hence, he prayed to acquit the accused

no.7. In addition to his exhaustive arguments, learned Counsel Shri

S.R. Pasbola filed written notes of arguments (Exh.863).

62. Learned Advocate Shri Vilas Naik for the accused no.3

reiterated the arguments advanced by the Advocates for the defence

regarding spot panchanama, topography, extra judicial confession,

privilege communication, approver as well as circumstantial evidence

and other objections. He submitted that it is the prosecution case

that out of 7, 6 were died on the spot. Thereby, as per the provisions

of Section 174 of Cr.P.C., it was necessary for investigating officer to

prepare the inquest panchanama through the Executive Magistrate

on the spot. Injured Kamlesh Kamble was alive till forwarding to

Sion Hospital. Despite of sufficient opportunity, prosecution

purposely never recorded his dying declaration. P.W.17 Varsha

Tushar Shah is a tutored witness. Whereas P.W.32 Vinod Bhagat

pressurize the investigating agency by his political influence to grab

the property of the deceased Suresh Bhagat. While recording the

...46/



statements of u/s. 164 of Cr.P.C., P.W.72 learned Metropolitan

Magistrate Shri Kshirsagar failed to follow the procedure laid down

by law. Prosecution failed to prove the panchanama u/s. 27 of Indian

Evidence Act and the other panchanamas which are drawn with the

help of stock panchas. The alleged incident is natural accident but

the colourful chargesheet has been filed by the investigating agency

by joining the hands with the witnesses with ulterior motive. In

addition to his exhaustive arguments, Advocate Shri Vilas Naik filed

the written notes of arguments (Exh.876A).

63. In reply, learned Advocate Shri M.R. Jethmalani for

accused no.8 submitted that the evidence of approvers is not against

accused no.8. Their testimonies are false and not corroborated and

there is no true disclosure. There is no substantive evidence against

accused no.8. At the most it is a conspiracy between accused no.4 and

accused no.7. There is no single allegation against accused no.8.

During the cross examination of P.W.05 approver Kiran Pujari, it has

brought on record that accused no.7 is interest protector of his

father's business. He also admitted that he did not feel that Hitesh

Bhagat is having inimical terms with his father and there were no

occasions to meet Hitesh Bhagat except two casual meetings. By

examining P.W.03 Ritesh Mehta, it has brought on record that

...47/



feelings of accused Hitesh Bhagat on hearing the sad news of the

death of the father. Accused no.8 take disparate steps to come back to

India, left the Hotel and returned to Mumbai immediately. At the

same time, immediately, they returned to India with an earliest

Aeroplane and attended the funeral. This shows the innocence of

accused no.7 mother as well as accused no.8 her son Hitesh Bhagat.

They are falsely implicated in this crime. P.W.32 admits that he

intends to keep accused no.7 and 8 behind the bar. His sole testimony

is prejudice and hearsay. Scene of offence is not properly placed

before the court in a proper perspective. The touch stone probability

of the incident is not filed on the record.

64. It is to be noted here that after the partheard arguments

by Senior Counsel Shri M.R. Jethmalani, Advocate Taraq Sayyed

filed an application that Senior Counsel is unable to attend the Court

and thereby, learned Advocate Taraq Sayyed continued his

arguments on behalf of the accused no.8.

65. Learned Advocate Shri Taraq Sayyed for accused no.8

submitted that to prove the travel and stay of accused no.8 Hitesh

Bhagat in Hotel, the prosecution has examined eight witnesses i.e.

P.W.04 Nitin Chavan, P.W.38 Rajendra Kamble, P.W.40 Michael

...48/



Remedious, P.W.41 Bhushan Rane, P.W.43 Abdulla Khan, P.W.44

Satish Vaiday, P.W.47 Tushar Mali and P.W.65 Ajay Pal. But, no

material evidence is brought on record that during the period

accused no.8 Hitesh Bhagat was stayed in the respective hotels.

Prosecution never carried out identification parade as well as never

filed any C.C. T.V. Footage which shows that accused was residing in

the respective Hotels. All these hotels are high ended in which C.C.

Cameras are installed. But, prosecution failed to bring the said

camera footage on record. Thereby, it cannot be said that accused

suppressed his identity and try to remain abscond. No a single

witness identified the accused. P.W.43 Abdulla Khan is a got up

witness. The evidence of P.W.43 is false and fabricated. The

panchanama dated 13/7/2008 (Exh.637) is of innocuous recovery.

Evidence of P.W.58 Preetam Mahadik, P.W.65 Ajay Pal and P.W.73

PSI Pawar is not found to be reliable. Though prosecution has

examined 80 witnesses, there is no incriminating evidence against

the accused. Therefore, benefit of doubt is to be given to the accused.

Hence, he prayed to acquit the accused no.8.

66. In reply, learned Advocate Shri A.R. Rasal for accused

no.1 driver Pravin Shetty reiterated the arguments of the Advocates

for the defence. He submitted that the testimony of P.W.06 M.M.

...49/



More and I.O. P.W.71 G.C. Hiremath is contradictory to each other.

The spot of incident is of heavy traffic. Eye witnesses were easily

available to the prosecution. Deliberate non examination of eye

witnesses is fatal to the prosecution. P.W.01 H.C. Mokal tampered

the FIR. I.O. P.I. Mahale made the interference in the investigation

when investigation was with Poynad police station and with L.C.B.

(Crime). Prosecution deliberately failed to file the log books, visit

book, station diary entries and phone register of Poynad police

station. There is a lack of evidence in respect of motive at the hands

of accused no.1. In such situation, cardinal principle of innocence of

the accused no.1 is in his favour. Accordingly, he also filed the

exhaustive written notes of arguments (Exh.878).

67. Learned Advocate Shri Amit Munde for the accused no.5

advanced his arguments that though prosecution has examined 10

witnesses to prove the conspiracy and 22 witnesses to show the case

of murder, not a single witness whisper against the accused no.5

Kiran Amle. None of the witness speak the specific role of accused

Kiran Amle. The witnesses on the point of extra judicial confession

never averred against the accused. Place of arrest of accused no.1 is

not mentioned in the arrest panchanama (Exh.496), thereby, it

cannot be said that he was arrested from the house of accused Kiran

...50/



Amle. Nothing is recovered from accused Kiran Amle. Mere

testimony of P.W.59 Sandeep Shirodkar cannot be held that the

mobile was belongs to the accused. The recovery of mobile from

P.W.59 Sandeep Shirodkar is planted. Mere testimony of P.W.18

Sunil Jangale and P.W.67 Ganesh Rane is not sufficient to prove the

guilt of the accused.

68. Learned Advocate Shri Amit Munde further submitted

that I.M.E.I. number mentioned on CDR (Exh.648) as well as on

seizure panchanama (Exh.717) are different. Conversation of accused

no.1 driver Pravin Shetty and the accused no.5 as per CDR (Exh.648)

is of four minutes and seven seconds, is not sufficient to prove the

conspiracy. The cell Id of his mobile is not shown in CDR (Exh.648).

Only circumstance is that his mobile was with accused Harish

Mandvikar is not corroborative evidence. None of the witnesses and

the investigating officer stated the role played by the accused no.5

Kiran Amle. It is admitted on record that Exh.694 is not retrieved

from the roaming network. Cell Id extract (Exh.701) are not taken

from the master computer. CDR (Exh.700) are not in sequence. The

evidence of P.W.66 is false and fabricated as it was filed at belated

stage, who admitted that its fonts are changed. CDR (Exh.646) is not

duly proved. Therefore, the evidence against accused Kiran Amle is

...51/



not found to be trustworthy. In addition to his oral arguments,

learned Advocate Shri Amit Munde filed written notes of arguments

(Exh.881).

FIR & SPOT

69. Upon perusal of record as well as upon hearing of the

Advocates, it has come on the record that on the day of the incident,

P.W.01 Head Constable J.D. Mokal was attached to Alibaug police

station. At about 13:45 hrs., he received the telephonic message in

respect of the accident between jeep and truck near Village Shahabaj,

Taluka and District Alibaug. Immediately, he communicated the

information to API Hiremath and they both proceeded towards the

spot with other staff. When they reached the spot, they found vehicles

i.e. truck no. MH04CA4445 and Scorpio no.MH04AC2475 were

separated. Seven injured were forwarded to Civil Hospital, Alibaug.

Thereafter, immediately, at about 14:30 hrs., he lodged the report

(Exh.330) and registered the offence vide C.R.No.25/2008. Since, six

persons were declared dead by Civil Hospital, Alibaug, crime was

registered u/s. 304A, 279, 337, 427, 338 of I.P.C. as well as u/s. 184,

134 of Motor Vehicle Act. The testimony of P.W.01 informant J.D.

Mokal corroborates his report (Exh.330). During his cross

examination, he admitted that out of seven, six were succumbed to

...52/



the injuries on the spot. Learned Advocate Shri Vilas Naik raised the

objection that when they found that six persons were died on the

spot, it was the duty of the prosecution to draw the panchanama on

the spot u/s. 174 of the Cr.P.C., at the hands of Executive Magistrate.

It is to be noted here that it is the case of impact between two

vehicles resulting into multiple deaths. In such situation, it was the

prime duty of the police officer to send the victims to the hospital.

Police officer is not an expert to decide whether they were dead or

severely injured. The police officers thus correctly reacted and were

not wrong in not drawing for the panchanama. Therefore, the

objection raised by the learned advocate in respect of the drawing a

panchanama on the spot is not sustainable.

70. The defence also raised objection that there is a erasion

and correction in the Report stating that Scorpio jeep was coming

from Alibaug to Pen. They raised objections that this has been

deliberate act of the prosecution. But, I do not find so since it is not

unnatural that in the rush of the things and in haste something is

written inadvertently at the first time. Moreover, it has no relevance

because in the format FIR (Exh.330A) the fact is correctly stated. At

the same time, testimony of P.W.71 Sr.P.I.G.C. Hiremath corroborates

the testimony of P.W.01 J.D. Mokal and P.W.06 M.M. More.

...53/



71. To prove the spot panchanama (Exh.609), prosecution has

examined P.W.52 pancha D.C. Mhatre, who is adjoining agriculturist

of the spot of incident. It has come in his evidence that when he learn

the vehicular accident near 'Fauji Dhaba', he reached the spot, he

saw that there was a vehicular accident between one Scorpio and big

truck. Police carried out the measurements of the vehicle and the

area and prepared the panchanama. Another pancha Madhukar Patil

was also present. Front side of Scorpio was completely damaged as

well as there was heavy damage to the front side of the truck.

Thereby, he signed the panchanama (Exh.609). In his cross

examination, P.W.52 pancha D.C. Mhatre admitted that he reached

the spot, at about 3.30 p.m., when the vehicles were separated. He

was on the spot upto 6 to 7 p.m. Advocate for the accused shown the

photographs of the truck as well as Scorpio which he admits (Exh.610

to Exh.612). He also admitted that the truck as well as Scorpio were

not on the road but in the field. He further admitted that there were

no tyre marks or skid marks on the road as well as on the kuccha

road. He admitted the topography of the spot in respect of the

adjacent companies Dharamtar Creek Bridge, Nippon Damro,

Sponge Iron Company, Ispat Port, etc.. He also admitted that there is

no divider to the road. It is also admitted in the cross examination

that the spot of incident is of curve as well as the slope. Even during

...54/



the cross examination of P.W.52 D.C. Mhatre, his testimony remains

intact. Though the topography of the spot has not been brought by

the prosecution, it has been brought by the defence. Prosecution

proved the spot panchanama showing that the driver of the truck

accused no.1 Pravin Shetty had not applied the brakes and gave the

dash to Scorpio with a force in which the tyres of Scorpio were burst

as well as the front axel of the truck was also damaged due to heavy

impact.

72. Investigating officer P.W.71 P.I. G.C. Hiremath's

testimony is corroborate by the testimony of P.W.52 pancha D.C.

Mhatre. He is the witness to the spot panchanama. He further stated

that photograph (Exh.612) shows the dead body of Suresh Bhagat

who was sitting besides the driver. After the registration of the

crime, he draw the spot panchanama as an important document in

accident case. Topography of the road in respect of the slopes and

curves and the distance from the slop is necessary to be mentioned.

He denied that there was heavy traffic on the said road. He further

admitted that he tried to see the tyre marks or skid marks, but they

were not seen. Even during the cross examination of investigating

officer P.W.71 G.C. Hiremath, nothing has been brought on record to

...55/



disprove the spot panchanama (Exh.609). In support of their

testimony prosecution also examined P.W.06 A.S.I. M.M. More.

73. (A) Learned Senior Advocate Shri Adhik Shirodkar placed

reliance on

(i) Keisam Kumar Singh and another v/s. State of

Manipur, (1985) 3 SCC 676, in which it has been held, “local

inspection by the Court is no substitute for evidence or proof.”

(ii) Ganesh Bhavan Patel & anr. v/s. State of

Maharashtra, (1978) 4 SCC 371, in which it has been held,

“inordinate delay in registration of the 'F.I.R.' and further delay in

recording the statements of the material witnesses, casts a cloud of

suspicion on the credibility of the entire warp and woof of the

prosecution story”.

(B) Learned Advocate Shri Vilas Naik placed reliance on

(i) State of Andhra Pradesh V/s. Punati Ramulu,

LAWS (SC) – 1993 – 2 – 89, in which it has been held, “when it is

found that I.O. deliberately fail to record FIR on receipt of

information of cognizable offence of the nature and had prepare the

FIR after reaching the spot after due deliberations, consultations and

discussion, the conclusion becomes inescapable that the investigation

...56/



is tainted, therefore it is unsafe to rely on the tainted investigation.”

(ii) Laxman V/s. State of Rajasthan, 1997 Cri.LJ 2718,

in which it has been held, “the suppression of the earlier report and

the delay in the dispatch of alleged FIR to the Court with definite

possibility speak that improvement and embellishment and has tried

to setup a distorted version of the incident.”

I have gone through the above cited rulings. The

principles laid down in the above cited rulings are not helpful

because local inspection has not been carried out by the Court. There

is no delay on receipt of information as well as delay in dispatch of

F.I.R. to the court nor there is any suppression.

74. Considering the evidence on record, it is obvious that

P.W.01 H.C. J.D. Mokal lodged the report immediately after the

incident. Later on, they prepared the spot panchanama (Exh.609).

Prosecution proved the spot panchanama by examining P.W.52

pancha D.C. Mhatre. During the cross examination of the

prosecution witnesses, it is admitted that there were no skid marks

on the spot. While drawing the spot panchanama, nowhere it is

mentioned that there were skid marks/tyre marks. Thereby, it is

crystal clear that driver of the truck no.MH04CA4445, never

applied the brakes and there were no skid marks or tyre marks on

...57/



the spot of incident. This would be so because he had given deliberate

dash to Scorpio. By examining P.W.01 HC Mokal, prosecution proved

the report (Exh.330). Spot panchanama has been duly proved

through P.W.52 D.C. Mhatre and IO G.C. Hiremath.

RTO REPORT

75. P.W.23 Motor Vehicle Inspector J.P. Thanekar has deposed

that as per the letter of Poynad police station, dated 16/6/2008, he

inspected the truck no.MH04CA4445 and Scorpio no.MH01AC

2475. During the inspection of Scorpio, he found that brake

connection was broken, steering arm and connection were broken,

engine was damaged, gear lever was damaged, front right side

chassis was damaged, tyres of rear sides were burst, front right side

tyre burst, radiator damaged, wind screen glass was broken, head

light was broken, top was damaged, rear glass was broken, driver's

sit was broken and all front show was broken. Vehicle was not tested

on road because of heavy damage, Therefore, opinion cannot be given

about other defects. Accordingly, he issued the report (Exh.473).

76. It has further come in his evidence that on the same day,

he inspected the truck no. MH04CA4445 and noticed that brake

connection was broken, steering connection was broken, gear box was

...58/



intact, front right side chassis bend, front axel separated from the

chassis, front brake connection was broken and diesel tank damaged.

Vehicle was not tested on road because of heavy damage. Therefore,

opinion cannot be given about other defects. Accordingly, he issued

the report (Exh.474). In his cross examination, he admitted that he

never visited the spot of incident as well as such accidents are

possible while attempt of overtaking by other way. The brake

connections of both the vehicles were damaged, therefore, his

admission for non examination of test drive has no relevance. In his

lengthy cross examination, he admitted the various reasons for the

accident. He also admitted that Scorpio is a S.U.V. i.e. Sports utility

vehicle. Though, he was cross examined lengthy, his reports as well

as testimony remain intact.

77. Upon perusal of the report (Exh.473 and Exh.474) as well

as testimony of the P.W.23 J.P.Thanekar, it is obvious that it was a

heavy impact. The theory of overtaking is not found believable

because the reports in respect of the damage of Scorpio as well as

TATA truck clearly shows that it was the headon collusion. If any of

the vehicles took overtake, such type of accident could not have

happened. The photographs and Compact Disk which are filed on

record by the prosecution clearly shows that there was damage to the

...59/



right side of Scorpio as well as of the Truck. Therefore, the possibility

of the incident taking place while overtaking of the vehicle cannot be

believed.

CONDITION OF VEHICLES

78. It has come in the evidence of P.W.54 Vijay Chavarkar

that immediately after the incident, he reached the spot and took the

photographs (Exh.620) and also subsequently prepared the CD

(Exh.619). P.W.49 photographer Mahesh Musale submitted that as

per the direction of investigation officer G.C. Hiremath, he obtained

20 photographs (Exh.589 colly.) and thereby, obtained the payment of

Rs.500/ vide receipt (Exh.587). The testimony in respect of the

photographs clubbed with the testimony of P.W.49 and P.W.54 is

corroborate to each other and thereby, prosecution proved the

photographs which are filed on record. The photographs which were

filed on record, were admitted by the defence in their cross

examination. Thereby, there is no reason to disbelieve the evidence

filed on record by the prosecution.

MEDICAL OFFICERS & POST MORTEM REPORTS

79. It has come in the evidence of P.W.34 Dr. S.M. Kondekar

that he performed the autopsy of the dead body of Tushar Shah. On

...60/



external examination, he found the following injuries i.e. fracture of

pelvis and external genital embedded in that, there was cut injury

separating thigh from perinum. On examination of position of limbs,

he found that there was evidence of fracture left forearm, fracture

right humerus, fracture right tibia fibula, evidence of CLW at knee

dorsally ventrally measurement of 5 cm x 3 cm x 2 cm., CLW left

thigh 3 cm. X 2 cm. X 4cm. X 2 cm., CLW over scalp, CLW over right

eyebrow, CLW over left eyebrow with underline fracture, blood

coming through nose and ear.

On internal examination, he found following injuries :

There was collection of blood clots in peritoneal cavity,

intestinal mesentry showing multiple blood clots all over area,

evidence of injury to liver at the junction of 2/3rd and 1/3rd, evidence of

blood clots in liver capsule, blood clot at the inferior wall of liver,

evidence of splenic rupture and blood in kidney capsule and left

kidney injury. Cause of the death was “haemorrhage shock due to

multiple organ injury in road traffic accident”. Thereby, he issued the

post mortem report (Exh.534). In his cross examination, he admitted

that on opening of stomach, he did not find the smell of alcohol and

drug. Therefore, he did not find it necessary to preserve viscera.

...61/



80. By examining P.W.37 Dr. A.S. Phutane, it has come in his

evidence that during post mortem of deceased Suresh Bhagat, he

found following injuries i.e.

(i) Skull vault is open with multiple skull bone fracture. Whole brain was lost. Both eyes lost. Piece of skull bone seen attached to scalp.

(ii) CLW on right forearm – 4 x 1 cm.(iii) Fracture of left humerus middle /third(iv) Compound fracture of left second and third metacarpus.(v) Fracture of left side Tibia fibula lower end.(vi) Fracture dislocation of right knee with CLW anterior

laterally 10 x 10 cms. Pieces of bones and muscles seen through the injury.

On Thorax multiple contusions on chest on both sides. On internal examination, he found following injuries :

(i) Left multiple rib fractures.(ii) Blood in thoracic cavity on left side with injury to left

lung.(iii) Right lung was congested.(iv) Left lung congested and injured(v) Multiple teeth loss.

Cause of death was “traumatic brain injury with loss of cerebrum

due to multiple skull bone fracture with polytrauma”. Accordingly, he

issued the post mortem notes as well as the advanced cause of death

certificate (Exh.543 and Exh.543A). In his cross examination, he

admitted that he is unable to say whether victim sustained injury

while driving the car. He further admitted that nothing was

suspicious, therefore, he did not preserve viscera and blood sample.

...62/



81. Medical Officers P.W.33 Dr. V.P. Kurhade, P.W.34 Dr. S.M.

Kondekar, P.W.36 Dr.S.G. Bhopale and P.W.46 Dr. Revati Desai have

proved the advanced death certificate as well as post mortem report

(Exh.532, 532A, 534, 534A, 538, 538A, 539, 539A, 542, 542A and

578). Opinion of the probable cause of death is given as “shock due to

multiple polytrauma in a case of road traffic accident”. Upon perusal

of all the post mortem reports, it clearly appears on record that all

seven deceased sustained the contused lacerated wounds all over

body, neck, thigh, etc.. It also appears that there were damaged to

the frontal bone and there is a damage to the brain of all the

incumbents in Scorpio.

82. During the testimonies of medical officers, it is obvious

that the cause of death are “haemorrhage shock due to the poly

trauma and there was fracture to the skull”. It is the specific case of

the prosecution that due to the heavy impact, skull vault of deceased

Suresh Bhagat was opened with multiple skull bone fracture. Whole

brain was lost. Both eyes were lost. Thereby, it is obvious that it was

the heavy impact and thereby, all the deceased/passengers of Scorpio

sustained the fracture to their skull in which they died on the spot.

The nature and gravity of the injuries are such that they could not

have occurred in normal accident and could have be sustained only if

...63/



the headon collusion was deliberate. The absence of skid marks

clearly shows that there was no attempt by the truck driver to apply

the brakes which could have been the case, had it been mere

accident. These circumstances clearly shows that it was not a mere

headon collusion but it is deliberate and intentional dash given by

the truck to the Scorpio.

83. During the cross examination of investigating officer

P.W.71 G.C. Hiremath, defence filed the copy of report of L.C.B.,

Alibaug, in respect of addition of Section 302, 120B of IPC before

C.J.M., Alibaug (Exh.773). Accordingly, permission was granted for

addition of provisions of Section 302, 120B of Indian Penal Code.

The injuries mentioned on the body of deceased Tushar Shah, driver

of Scorpio, clearly shows that he sustained multiple injuries, whereas

accused no.1 Pravin Shetty, who as would be shown little later, was

truck driver sustained the minor injury on his nose and forehead.

This would not have been the case unless the truck driver

deliberately dashed with great force to Scorpio. The injuries

sustained by Suresh Bhagat, Tushar Shah and others were not only

grievous but there was damaged to their skull and brains were

ruptured or pierced from the skull. This also rules out theory of mere

accident.

...64/



84. In further cross examination of IO G.C. Hiremath, defence

was taken that the spot of incident is of heavy traffic as well as

accident prone. To prove their contention, they filed the extract of the

R.T. Information accidents during the period from January 2005 to

March 2009 between Wadkhal Naka to Poynad Road (Exh.738). The

suggestive information cannot override positive and conclusive

circumstantial evidence ruling out the accident.

85. The defence that there was a slope where the incident

took place, in fact shows that the incident could not be accident. That

is so because Scorpio which was going from ascending direction could

not ply fast, whereas the truck coming from the opposite direction

could be in control of the situation, coupled with the fact that the

driver of the truck was continuously chasing over the phone the

position of Scorpio. It is evident that he deliberately dashed Scorpio

instead of keeping his vehicle in control which would have been the

case for avoiding the accident.

86. The advocates for the accused raised the objection that the

viscera of the deceased were not preserved and not examined by the

prosecution. During the cross examination, medical officers have

given specific reply as to why viscera was not preserved viz. there

...65/



was no smelling of alcohol. Therefore, the objection raised by the

Advocate for the accused has no substance and the same is not

maintainable.

INJURIES TO ACCD.NO.1 DRIVER

87. It has come in the evidence of P.W.22 Dr. Smt. S.K. Desai,

who was attached to Vibha Care Home and examined the accused

no.1 driver Pravin Shetty, on 13/6/2008, at about 11.10 p.m.. When

she asked the reason of injury, he told that while unloading the

articles from the truck, he sustained injury by the shutter of the

truck. He was advised to admit in the hospital, but, he refused. She

gave first aid to accused no.1, as the accused refused to admit.

Thereby, she obtained the signatures of P.W.62 Ajimuddin Shaikh &

P.W.77 Antony Raj Nannya Dravid, who were accompanied with him.

Prosecution has filed the said medical papers (Exh.471) on record.

88. Upon perusal of medical papers of Vibha Care Home

(Exh.471), Dr. S.K. Desai clearly mentioned the history of injury i.e.

put on the nose by truck shutter and had an injury on head. She also

mentioned that it is contused lacerated wound superficial to deep

nose (including both alacnasi and nasal septum admeasuring 8 x 8

cm.) She also found abrasion over the frontal region 1 x 1 cm.

...66/



89. The defence of the accused is of total denial as well as not

found any injury on his person. Whereas, the arrest panchanama/

surrender form (Exh.496) clearly shows that he sustained horizontal

injury on his nose and there is abrasion over his forehead and the

nose. Thereby, the defence which has been raised by the accused has

no substance. On the contrary, it supports the prosecution case that

at the time of the incident, accused no.1 Pravin Shetty also sustained

the injury on his nose and forehead. Thereby, he was examined by

P.W.22 Dr.S.K.Desai. By examining P.W.22 Dr. S.K. Desai,

prosecution proved the medical papers/injury certificates (Exh.471).

90. P.W.62 Ajimuddin Shaikh (approver) admitted that he and

P.W.77 Anthony Raj Nanya Dravid forwarded accused no.1 Pravin

Shetty to the hospital. Doctor gave the first aid treatment and

advised to admit in the hospital but they refused. They got writing

from Anthony that they are not ready to admit him and they are

leaving the hospital on their own risk. He admitted the said remarks

on Exh.471 as well as his signature and signature of Anthony Raj

Nanya Dravid with their mobile numbers. The mobile numbers of

P.W.62 Ajimuddin Shaikh is mentioned as 9324260303. Whereas the

signature of Anthony and his mobile number is mentioned as

9833110177.

...67/



91. It has come in the evidence of P.W.77 Anthony Raj Nannya

Dravid that his mobile number is 9833110177. He did not support the

prosecution. During his cross examination by learned Spl.P.P., he

submitted that he did not know Ajimuddin Shaikh. He denied that

he had taken accused no.1 to the hospital i.e. Vibha Care Home.

When his prepaid application form (X61) is shown to him, he

admitted copy of his passport as well as his signature on exhibit.

Thereby, it is exhibited as Exh.757. Xerox copy of his passport and

the signature thereon is admitted by him which is exhibited at

Exh.758. When I compared the signature and the handwriting on

Exh.471 as well as Exh.757, Exh.758, I found them closely similar.

Whereas P.W.62 Ajimuddin admitted his signature on Exh.471.

Thereby, prosecution successfully proved that Anthony and

Ajimuddin forwarded the accused no.1 Pravin Shetty to Vibha Care

Home for his medical treatment immediately after the incident, but

they refused to admit for further treatment. Thus, it is obvious that

at the time of the incident, accused no.1 Pravin Shetty also sustained

injury on his nose as well as abrasion injury on his forehead.

92. P.W.24 Daulat Bade, who was working as waiter in Hotel

Sai Kutir at Wadkhalnaka, stated that on the day of the incident,

accused no.1 Pravin Shetty had been to their Hotel having sustained

...68/



injuries to his nose. Thereby, he put the scarf/handkerchief on his

mouth. Blood was oozing from his nose. One phone call was received

and thereby, he handed over the call to the accused Pravin Shetty.

93. P.W.25 N.T. Mhatre, Manager of Hotel Sai Kutir deposed

that at about 2.30 p.m., one person came to Hotel and made a phone

call from P.C.O..The person, who came to the Hotel tied handkerchief

to his nose and thereby due to curiosity, he asked him as to what

happened and thereby, he replied that somebody beat him by tommy

and he has to inform to his employer. During the cross examination

of both the witnesses, their testimonies remains unshaken. Thereby,

the testimony of P.W.22 Dr. S.K. Desai, P.W.24 Daulat Bade and

P.W.25 N.T. Mhatre is corroborate to the prosecution case as well as

in respect of the injury sustained by accused no.1 Pravin Shetty.

Thereby, it has brought on record that on the day of the incident,

accused no.1 Pravin Shetty also sustained injury to his nose as well

as to the forehead. The aforesaid evidence unflinchingly establishes

that accused no.1 Pravin Shetty was driving the truck. I have already

discussed that the accused had deliberately dashed with tremendous

force to Scorpio with intention to kill deceased Suresh Bhagat and

the incumbents in Scorpio. In other words, theory of 'simple accident'

is totally not acceptable and ruled out.

...69/



94. During the arguments, Advocates for the accused raised

the objection that the investigation is faulty, as it has come in the

cross examination of P.W.06 ASI More that statements of 5 to 6

persons may have recorded, who has seen the incident. Mere

admission by the police officer who did not carry out the

investigation, does not mean that at the relevant time, eye witnesses

were available on spot and that their statements were recorded. It is

to be noted here that spot of incident is of traffic. It has come on the

record that accused no.1 Pravin Shetty made the call at about 2.30

p.m. from P.C.O. and he was present there upto 5.00 p.m.. The

accused was there for 2½ hrs. and was waiting until he receives the

return call. The return call are seldom received at P.C.O.. The

witnesses had glimpses of the accused. They had ample time and

opportunity to store in their mind the identity of the accused. They

identified the accused immediately after the incident in the police

station as well as before the Court. From these circumstances the

identification by the witnesses even without test identification

parade can safely be relied. Thereby, the inference sought to be

drawn by the defence for non examination of eye witnesses and

identification parade is misconceived.

...70/



95. (a) Learned Senior Advocate Shri Aadhik Shirodkar

placed reliance on :

(i) Syad Akbar v/s. State of Karnataka, (1980) 1 SCC

30, in which principle regarding the application of maxim “Res ipsa

loquitur”,

(ii) Ishwar Singh v/s. State of U.P., (1976) 4 SCC 355,

in which it has been held, “There is no explanation why the others

were not examined. Of course, nonexamination of some witnesses

would not matter if the witnesses examined unfolded the prosecution

case fully. But it is well established that witnesses essential to the

unfolding of the narrative on which the prosecution is based must be

examined. Nonexamination of these witnesses acquires a special

significance in view of the material discrepancy between F.I.R. and

the version of the occurrence given by the prosecution in court.”

(b) Learned Advocate Shri Vilas Naik placed reliance

on:

(i) State of M.P. V/s. Kailash, I (2005) DMC 124, in

which it has been held, “non filing of statements of the eye witnesses

when they are already recorded amounts to a faulty investigation by

the I.O. was not only negligent but has also willfully suppress the

documents in order to bring false case against the accused”.

...71/



(ii) Piginaraji Ranga Rao V/s. State of A.P., 2009

CRI. L.J. 3699, in which it has been held, “no test identification

parade had been conducted to establish the identity of the accused in

such case accused entitle for acquittal.”

(c) Learned Advocate Shri Rasal placed reliance on :

(i) Awadhesh and anr. V/s. State of Madhya

Pradesh, AIR 1998 S.C. 1158, in which it has been held, “place of

occurrence is a busy public place where District Magistrate, Supdt. of

police etc. reaching the spot in few minutes after the occurrence.

Neither of them or any independent witness examined by the

prosecution. Thereby the prosecution case is doubtful and conviction

of accused is improper.”

(ii) Kanan & Ors. V/s. State of Kerala, AIR 1979 S.C. 1127,

(iii) Shaikh Umar & Anr. V/s. State of Maharashtra,

AIR 1998 S.C. 1922

(iv) State of Maharashtra V/s. Sukhdeo Singh alias Sukha and

Ors., AIR 1992 S.C. 2100

(v) Thankayyan V/s. State of Kerala, 1994 S.C.C.(cri) 1751,

in which it has been held, “belated identification in Court its validity

and when accused already shown to witness and later on

identification parade was carried out is meaningless.”

...72/



I have gone through the principles laid down in the above

cited rulings. The principles of the law in respect of “Res ipsa

loquitur”, non examination of eye witnesses as well as on the point of

test identification parade are settled. The principles however, laid

down in the above cited rulings is not helpful to the accused as the

facts are not similar to the case in hand. In fact, the principle of “Res

ipsa loquitur” which means things speaks for themselves, goes

against the accused and helps the prosecution.

EVIDENCE OF P.W.02 ADV. SOMET SHIRSAT & PRIVILEGE COMMUNICATION

96. It has come in the evidence of P.W.02 Advocate Somet

Shirsat that he was junior of Advocate Raju Sawant, who filed

vakalatnama on behalf of accused no.8, in Alibaug Sessions Court in

N.D.P.S. Case no.2/2007. He further submitted that accused no.8

Hitesh Bhagat, his father deceased Suresh Bhagat and other five

were accused in the said proceeding. Prior to the date of the hearing,

mother of the accused Jaya Chheda used to inform him whether

accused no.8 Hitesh will attend the court or not and if absent, he

used to file the exemption applications informing the Court. On

15/5/2008, said case was fixed. Advocate Somet Shirsat sent SMS to

Hitesh in response to which Hitesh informed by SMS that he is

...73/



hospitalized. Thereby, on 15/5/2008, he informed his colleague

Advocate Mahesh to file exemption application on behalf of accused

Hitesh. On 13/6/2008, he went to Sessions Court, Alibaug. He filed

an exemption application (Exh.358) on behalf of accused no.8 Hitesh.

At about 10.30 a.m., he received the call from accused Suhas Roge

and made inquiry about his attendance in the court. Again at 12:45

p.m., accused Suhas Roge called him and made inquiry regarding the

accused, who were present and the status of the matter. To which he

informed about the grant of exemption application on behalf of

Hitesh as well as rejection of discharge application. His testimony is

corroborate by his statement (Exh.359), which was recorded by

learned Metropolitan Magistrate, 23rd Court, Esplanade.

97. Learned Senior Advocate Shri Adhik Shirodkar as well as

all the learned defence Advocates raised the objection that as per the

provisions of Section 126 of Evidence Act, communication between

the advocate and his client is privileged communication. As such, the

testimony of P.W.02 Somet Shirsat is within the ambit of Section 126

of Evidence Act and has no evidentiary value, as he has not obtained,

express or implied consent from his client i.e. accused no.8 Hitesh.

...74/



98. The provisions of Section 126 of Evidence Act reads thus :

S.126. No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to this client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure (1) any such communication made in furtherance of any illegal purpose ; (2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.

“No barristers, attorney, pleader or vakil shall any time be permitted to :

(1) disclose (i) any communication made to him by or on behalf of his client or (ii) any advice given by him to his client in the course and for the purpose of his employment; (2) to state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his employment.

...75/



The section does not protect from disclosure (1) any communication made in furtherance of any

illegal purpose ;(2) any fact observed in the course of employment

showing that any crime or fraud has been committed since the commencement.”

Privilege communication means confidential

communication passing between the client and his legal advisor and

made for the purpose of obtaining or giving legal advise. It is the

settled principle of law that the communication made in furtherance

of criminal purpose is not protected from disclosure. That apart the

communication by the client with Advocate about adjournments

cannot be said to be professional or legal advise and therefore, is not

privileged communication in the eye of law. Moreover, communication

cannot be said to be privileged as against accused Suhas Roge, since

he was not client of P.W.02 Adv. Somet Shirsat. In fact not concerned

with criminal case. The undue and detail inquiry by the said

Advocate over the phone about the status of matter clearly shows

that accused Suhas Roge was party to the conspiracy and was

directly connected with planning of carrying out the murder.

99. Learned Counsel Shri S.R. Pasbola and Learned Advocate

Shri Vilas Naik placed reliance on :

...76/



(i) Mandesan V/s. State of Kerala, 1995 CRI. L.J. 61,

in this case it has been held, “communication between the

accused and his advocate is not admissible in evidence. Mere failure

on part of the accused/client to claim privilege does not melt down the

principle of waiver”.

(ii) K. Ponnammal V/s. A. Loganathan,

LAWS(MAD)20097311,

in which it has been held, “privilege communication is

mandate as well as protection to the client. Therefore advocate is can

not permitted to give the evidence in Civil suit.”

The principle laid down in above cited rulings is not

helpful to the defence as P.W.02 Advocate Somet Shirsat has never

disclosed any professional communication.

100. Learned Special P.P. placed reliance on :

(i) S. Anthony v/s. G.S. Naidu,

1967 Cri.L.J. 1527

in which it is held, “Privilege is intended only to

protect interest of client in respect of any action or prosecution for any

prior act or offence. Privilege is not intended for committing any

offence”.

...77/



(ii) K.C. Sonrexa v/s. State of Uttar Pradesh,

1963(1) Cri.L.J. 38,

in which it is held, “Privilege could be claimed only by

those clients who have already completed the crime and seek legal

advice for defence but it is not open to those who commit subsequent

crimes which may be described as future wrong doing”.

These principles are applicable to the case in hand as the

facts are in respect of filing of exemption and had instructions of his

client does not mean that it has come within the ambit of privilege

communication. At the same time, Advocate Somet Shirsat did not

disclose any confidentiality of the case. Thereby, the objection raised

by the Advocates for the Accused has no substance.

APPROVER

101. It has come in the evidence of P.W.05 Approver Kiran

Raghu Pujari that after the grant of pardon, Chief Metropolitan

Magistrate recorded his statement. While recording the statement,

he elaborately states about his business, raids by joining the hands

with one Pradeep Rugane claimed to be influential person. At the

instigation of Pradeep Rugane, he made phone call on residential

phone number of deceased Suresh Bhagat, which was attended by

Krishna Bhagat, wife of accused Hitesh Bhagat, over the phone.

...78/



P.W.05 Kiran Pujari asked Krishna Bhagat to call back. On 2nd day,

accused Hitesh Bhagat made the call and agreed to meet at Hotel Taj

at Colaba. Accused Hitesh Bhagat, Jaya Chheda, Suhas Roge came

to meet him. Pradeep Rugane and Ashish Bhosale were also present.

In that meeting, accused Hitesh Bhagat paid him Rs.1 lakh. On the

next day, Suhas Roge called P.W.05 Kiran Pujari at the house of Jaya

Chheda at Pant Nagar, Ghatkopar. At the relevant time, Jaya

Chheda, Hitesh Bhagat and Suhas Roge were present. They told him

that accused Hitesh Bhagat and Suresh Bhagat were not looking

mataka business properly. Later on, Suhas Roge came to P.W.05 at

his Airoli office for informing about Suresh Bhagat's mataka

business and told him to arrange the raid with the help of police. At

his instigation, police conducted the raid operation at Lonawala office

as well as office situated at Vashi. Thereby, Jaya Chheda and Hitesh

Bhagat paid him the amounts as well as the gifts and the same is

continued from time to time. From accused Suhas Roge and Jaya

Chheda he gathered the information of whereabouts of deceased

Suresh Bhagat and communicated to the police when he was wanted

in various cases.

102. It has further come in his evidence that, when deceased

Suresh Bhagat filed Writ Petition before Hon'ble High Court against

them. Thereby, Suhas Roge called him at the house of Jaya Chheda.

...79/



Accordingly, they appeared before the office of Detection Crime

Branch, Unit VII and their statements were recorded. Thereafter,

they went to the house of Jaya Chheda. At the relevant time, Jaya

Chheda told them that Suresh Bhagat had finished the mataka

business. Accused Suhas Roge told that he will ensure permanent

solution for Suresh Bhagat. At that time, Jaya Chheda told that

“Tumhi nusate bolta, hatat bangadya ghalun ghari basa”. Suhas

Roge stated that “he will eliminate Suresh Bhagat by fake accident

while coming from Alibaug Court, but accused Hitesh Bhagat shall

not remain present at Alibaug Court”. Thereby, Jaya Chheda told that

“Tumhi fakt bolta, kahi karat nahi” . Then accused Suhas Roge asked

him for the help, if any problem arise. He said “yes” and he went to

his house.

103. It has further come in the evidence of P.W.05 Approver

Kiran Raghu Pujari that on 13/6/2008, at about 2.30 to 3.00 p.m.,

when he was proceeding to Mantralaya, he received phone call from

Suhas Roge. He insisted him to meet urgently. Then he met Suhas

Roge near Rani Baug, Byculla, within 10 to 15 minutes. He sat in

Maruti van of Suhas Roge and one man sitting in Maruti van of Roge

was shifted to the car of P.W.05 Kiran Pujari. P.W.05 Kiran Pujari

and accused Suhas Roge proceeded in Suhas Roge's van towards

...80/



Mantralaya. At that time, Suhas Roge informed him that Suresh

Bhagat died in the accident by dash of the truck while returning

from Alibaug Court. Upon which he asked him whether really he had

done so. He replied affirmatively. Accused Suhas Roge further stated

that now he and Jaya Chheda can sleep happily. He also told that

accused Hitesh Bhagat is sent abroad. Suhas Roge asked him the

help,if any. When they reached near Hutatma Chowk, again he sat in

his own car and the person from his car went along with Suhas Roge.

In the evening,he saw the news that Suresh Bhagat died. After

hearing the news, he got frightened and thereby, he avoided to meet

Suhas Roge.

104. During his cross examination, he admitted that all his

previous bail applications were filed as per his instructions and in

those applications, he claimed to be an innocent. He admitted that he

had not received any money from Suresh Bhagat, but received the

amount from Hitesh Bhagat, Suhas Roge and Jaya Chheda. He

admitted that in his pardon application word “if” suggesting that

conditional pardon and sought is wrongly mentioned by him and the

said application is in his handwriting.

105. In his cross examination, he admitted the discussion

between accused Suhas Roge and Jaya Chheda that he will see

...81/



permanent solution for Suresh Bhagat and accused Jaya Chheda

states that “Tumhi nusate bolta, hatat bangadya ghalun ghari basa”.

Instead of denial, he reiterate the talks between the accused no.4

Suhas Roge and accused no.7 Jaya Chheda. Thereby, he supports the

prosecution case.

106. It was the defence of the accused that P.W.05 approver

Kiran Pujari is an extortionist, blackmailer and not reliable. Thereby,

he was cross examined on the point of the documents found in his

possession. To which he admitted the insurance policy (Exh.395) and

PUC certificate (Exh.396), his visiting card which embossed with

national emblem (Exh.397), identity card (Exh.398), government

receipt for the use of revolver (Exh.399), office copy of letter to

permission to carry revolver (Exh.400), permission for revolver

(Exh.401), xerox copies of letter MLA Sanjay Dina Patil (Exh.402),

service book of the card bearing no.MH43M4030 (Exh.403) as well

as affidavit of one Gayasuddin as well as Yunus Khan (Exh.404 and

Exh.405). He further admitted that he was receiving black money by

blackmailing others.

107. It has further come in the cross examination of approver

P.W.05 Kiran Pujari that Pandurang Patil is the father of his friend

...82/



Amit Patil and phone no.9870557511 is in the name of Pandurang

Patil. Amit Patil is his childhood friend. He used the said mobile for

the safety and also for his privacy. He further admits that he used to

provide information to the police, Rationing Authorities, Corporation

and to the Ministers as well as he used to receive the amount from

the police as a informer. He further admitted that on 12/7/2008, he

handed over Rs.4 lakhs wrapped in saree from cupboard in his house.

He further admits the receipt of Rs.1 lakh for providing information

regarding Lonawala raid. During his cross examination, his

testimony remained unshaken. His statement (Exh.340) was

recorded by the Chief Metropolitan Magistrate corroborates the

testimony. Extra judicial confession of accused Suhas Roge as well as

reprimand by accused Jaya Chheda has also come in the evidence of

P.W.05 Kiran Pujari. At the relevant time, accused Suhas Roge

declared his intention to eliminate Suresh Bhagat and asking the

help from Kiran Pujari to which he shown his readiness. Accordingly,

on the day of the incident, accused Suhas Roge informed him about

the place of death of Suresh Bhagat while returning from Alibaug to

which P.W.05 Kiran Pujari shown readiness to help them, which

shows his involvement in the conspiracy of commission of murder for

valuable consideration. In view of the above defence that P.W.05's

evidence is only exculpatory is devoid of merits.

...83/



108. P.W.20 Rahul Kurtadkar deposed that approver Kiran

Pujari is his friend since his childhood. He served with him as his

driver. Prior to one year, he left the said job. He used to go with

Kiran Pujari at Nashik, Pune, etc.. He used to go to the house of

accused Jaya Chheda at Ghatkopar. He also travelled with her for

Daman, Gujarat. He is also knowing accused Suhas Roge because of

Kiran Pujari. On 13/6/2008, at about 11.00 a.m., he received phone

call from accused Kiran Pujari and called him to proceed to Mumbai.

As per their discussion, he stood near Airoli bridge. Kiran Pujari

came there in his Verna Car. He took the charge of steering of the

said car. When they reached near Rani Baug, Kiran Pujari received

phone call, where because he parked his vehicle by the side of the

road. After 5 to 7 minutes, one Maruti car came there and parked

behind their car. One person from Maruti car came in their car and

Kiran Pujari sat in Maruti car. While changing the seat, Kiran Pujari

directed him to follow Maruti car. Accordingly, he followed Maruti car

and reached near Fountain. Thereafter, Kiran Pujari came back in

Verna car and the person sat in his car went to sit in Maruti car. At

the relevant time, Suhas Roge was driving the said Maruti car.

Thereafter, they proceeded towards Mantralaya. After 23 hrs., they

came back. He was having mobile bearing no.9224588912.

Accordingly, police recorded his statement.

...84/



109. In his cross examination by Advocate Pasbola for accused

no.7, P.W.20 Rahul Kurtadkar admitted that approver Kiran Pujari

is his master as well as friend, therefore, he is helping him in each

kind of work including carrying his tiffin to jail. He never stated the

name of the person who sat in their car from Maruti car because he

was unknown to him. In his cross examination also he admitted that

on 13/6/2008, he and Kiran Pujari went to Rani Baug. He is unable to

say the date when he went to Gujarat with Jaya Chheda with Kiran

Pujari. But he had taken them in Skoda car. He further admitted

that after 23 days, he came to know that Kiran Pujari was arrested.

Despite of his detailed cross examination, his testimony remained

unshaken. By examining P.W.20 Rahul Kurtadkar, prosecution

proved that on the day of the incident, Kiran Pujari reached Rani

Baug at the instance of accused Suhas Roge. It has also come on the

record that when they reached near Rani Baug, approver accused

Kiran Pujari sat in Maruti car of accused Suhas Roge and another

person from his car sat in the car of Kiran Pujari, which was driving

by P.W.20 Rahul Kurtadkar and subsequently they changed the

position near Fountain. The circumstance clearly shows that on the

day of the incident, there was a meeting between accused Suhas Roge

and approver Kiran Pujari from Rani Baug to Fountain, at about

...85/



2.30 to 3.00 p.m.. Their involvement in the crime is thus clear from

the evidence.

110. Approver P.W.62 Ajimuddin Shaikh states that accused

Harish Mandvikar was his colleague, when they were working with

'Jay Electricals'. He used to give the truck to Harish Mandvikar and

others on occasion of Ganpati and Dahi Handi. He also got

acquainted with Raju, Ganya, Santosh and Balan as they used to

take the part in Dahi Handi. Anand Vishram Patil is his partner in

the business, since the year 2003. In the year 2005, they purchased

truck in question bearing no.MH04CA4445. In the second week of

May 2008, accused Harish Mandvikar called him on phone and made

inquiry about the truck/dumper. He demanded the dumper but he

shown inability on account of driver. Thereby, Harish Mandvikar

stated that he will arrange the driver. When he asked the reason, he

replied that one persons' hands and legs are to be broken. He denied

to hand over the truck. By that time, accused no.1 driver Pravin

Shetty came to take the truck. P.W.62 Ajimuddin asked him whether

they really needed the truck to break the hands and legs of any

person. Accused no.1 Pravin Shetty denied the same and assured him

to keep faith. Thereby, on previous date, at about 9.10 a.m., he took

the truck and return in the evening.

...86/



111. Approver P.W.62 Ajimuddin Shaikh further deposed that

on 13/6/2008, at about 10.00 a.m., he received the phone call from

accused Harish Mandvikar to hand over the truck to accused Pravin

Shetty. In the meanwhile, accused Pravin Shetty came on the

motorbike with Ganesh Rane to take the truck. When he refused to

hand over, he assured that nothing untoward will happen. He took

the photocopy of his driving license and handed over the truck. When

P.W.62 Ajimuddin asked the reason for requirement of truck, he

replied that they are bringing the machine from Chiplun on hire.

Accordingly, he also informed Anand Patil. Later on, at about 2.00

p.m., accused Harish Mandivkar informed him that truck met with

an accident on AlibaugPen Road. When he asked about the injury to

anybody, he replied that seven persons were killed. Thereby, he got

annoyed, accused Harish Mandvikar replied that not to worry and he

will take care of all the losses. He also told him that he was saying of

killing of one person, whereas he killed seven persons.

112. P.W.62 Ajimuddin further deposed that on 13/6/2008, at

about 4.00 p.m., P.W.77 Anthony Raj and P.W.67 Ganesh Rane came

to his house with cloth bag containing Rs.10 lakhs, on account of loss

caused to him. But he refused to take the same on the ground that

...87/



instead of one, seven persons were killed by the truck. Police also

contacted him on his mobile as the truck met with an accident and

driver ran away. He also informed the incident to his partner Anand

Patil. When he tried to meet accused Harish Mandvikar at his house,

he did not meet. Then he went to the house of accused no.1 driver

Pravin Shetty and took him to the hospital in Shastri Nagar, Borivali

as he sustained the injuries. In the meantime, P.W.77 Anthony Raj

Nannya came to the hospital and talked with the nurse in English

and refusing to admit him in the hospital. They both signed the

hospital papers and returned to the home. When they returned to the

house with accused Pravin Shetty, he informed accused no.1 Pravin

that on the next day, they have to go to Alibaug police station. At

about 1.45 a.m., police came to his house. When they made inquiry

with P.W. 62 Ajimuddin, police went to the house of accused Pravin

Shetty, but he was not present in the house. On inquiry with one

adjoining boy by name Baban, he told that accused Pravin Shetty

was taken by accused Kiran Amle at his house. Therefore, they

reached to the house of accused Kiran Amle and brought the accused

Pravin Shetty.

113. In his cross examination, P.W.62 Ajimuddin admitted that

he informed the police that he was entangled and falsely implicated

...88/



in this case. He admitted his mobile no.9324260303 which is

displayed on the truck. He does not know P.W.10 Vinayak Pawar, who

is the original subscriber of the said mobile. On the contrary, he

stated that it was purchased by him from shop in Telli Galli but he

failed to state the details. He further admitted that he thought that

accused Harish Mandvikar was talking for breaking of someone

limbs, but, he was not aware about the killing. He admitted that

Magistrate recorded his statement. He denied that accused Pravin

Shetty was his employee on monthly salary of Rs.5,000/ and Rs.100/

per day entry license. He admitted that he gave ornaments of 15

tolas and cash of Rs.10 lakhs during the marriage of his daughter.

Despite of his detail cross examination of the accused/approver

Ajimuddin Shaikh, his testimony remains unshattered.

114. It is obvious that P.W.62 Ajimuddin is the owner of truck

no.MH04CA4445 and he handed over the truck to accused Pravin

Shetty at the request of accused Harish Mandvikar. It is also

admitted that his mobile no.9324260303 was also displayed on the

truck. Anand Vishram Patil is his sleeping partner. It has come on

the record that on the day of incident, he informed his partner about

the sending of truck to Chiplun to bring the machine and after the

accident. It is not that P.W.62 Ajimuddin was routinely informing the

...89/



movement of the truck to his partner. This shows that he had

informed the same only with a view that on police inquiry, his

partner Anand Patil tells to the police as per his plan. Thereby, it

appears on record that on the day of the incident, he informed the

same to his partner, if police made the inquiry with him. His

testimony is corroborated by his statement (Exh.657A).

115. It has also come on the record that immediately after the

incident i.e. at 4.00 p.m., accused Harish Mandvikar sent P.W.77

Antony Raj Nannya Dravid and P.W. 67 Ganesh Rane at his house

and offered an amount of Rs.10 lakhs and the same has been refused

by him. His testimony remains unchallenged and found to be

trustworthy.

116. P.W.07 Anand Patil stated that he is partner of approver

P.W.62 Ajimuddin Shaikh in business of truck, which was handled

exclusively by P.W.62 Ajimuddin. Since the year 2002, he contributed

the amount for purchase of the truck. The truck in question i.e. MH

04CA4445 is owned by him and approver Ajimuddin and the same

was handed over to accused Pravin Shetty. It has further come in his

evidence that on the day of the incident, approver Ajimuddin

...90/



informed him about trip of the truck and its hire charges Rs.5000/.

His testimony corroborates the version of approver Ajimuddin

Shaikh.

117. Learned Advocate Shri Adhik Shirodkar raised the

objection that the testimonies of P.W.05 Kiran Pujari and P.W.62

Ajimuddin Shaikh are exculpatory and do not inculpatory. The

testimonies of both these approvers are not corroborate in material

particulars and thereby, it cannot be reliable. He placed reliance on :

(i) Tanviben Pankajkumar Divetia v/s. State of Gujarat,(1997) 7 SCC 156, in which it has been held : “Court has to be watchful and

avoid the danger of allowing the suspicion to take the place of legal

proof for sometimes, unconsciously it may happen to be a short step

between moral certainty and legal proof. It has been indicated by this

Court that there is a long mental distance between “may be true” and

“must be true” and the same divides conjectures from sure

conclusions”.

(ii) K. Hashim v/s. State of T.N.,

(2005) 1 SCC 237,

in which it has been held : “Section 114 illustration

(b) provides that the court may presume that the evidence of an

accomplice is unworthy of credit unless corroborated, “may” is not

...91/



“must” and no decision of court can make it “must”. The court is not

obliged to hold that he is unworthy of credit. It ultimately depends

upon the court's view as to the credibility of evidence tendered by an

accomplice. The rule is that the necessity of corroboration is a matter

of prudence except when it is safe to dispense with such corroboration,

which must be clearly present in the mind of the judge. Therefore, if

the evidence of the accomplice is found credible and cogent, the court

can record a conviction even on the uncorroborated testimony of an

accomplice”.

(iii) Sarwan Singh Rattan Singh v/s. State of Punjab,

1957 Cri.L.J. 1014,

in which it has been held : “approver's evidence has to

satisfy a double test. His evidence must show that he is a reliable

witness and that is a test which is common to all witnesses. If this test

is satisfied the second test which still remains to be applied is that the

approver's evidence must receive sufficient corroboration. This test is

special to the cases of weak or tainted evidence like that of the

approver”.

(iv) AlSaleha Beig s/o. Abdul Gani Beig v/s. State &

Ors., 2008 ALL MR (Cri) 802, in which it has been held : “no

objection by the prosecution for tendering the pardon would not be

sufficient. Prosecution should join the request made by the accused for

...92/



reasons stating as to why pardon is necessary and that the conviction

of the other accused is not easy without approver's testimony. Without

following the procedure, pardon is granted, accused is entitled to seek

the revision and the revision can be entertained”.


principles laid down in these authorities are established principles of

law that if the evidence of accomplice found credible and cogent,

court can record a conviction even on uncorroborated testimony of

accomplice. The principle cited supra laid down in AlSaleha's case is

in respect of revision and therefore, it is not helpful to the defence.

Moreover, I have shown that the testimony of P.W.05 Kiran Pujari

and P.W.62 Ajimuddin is not exculpatory and their evidence has

established their role in the crime.

118. Learned Advocate Shri S.R. Pasbola placed reliance on

following rulings:

(i) Rampal Pithwa Rahidas & Others V/s. State of

Maharashtra, 1994 S.C.C.(Cri.) 851, in which it has been held,

“though the approver is a competent witness, his evidence must be

corroborated in material particulars by direct and circumstantial

evidence. Once the testimony of approver is found to be unworthy of

credence it can be rejected outright.”

...93/



(ii) Rakesh Kr. Singh V/s. State of Assam, 2003 CRI

L.J. 3206, “in this case accused/approver PW6 Shikha Barthakur,

sisterinlaw of accused, in her statement never states that her direct

or indirect involvement in the crime, thereby her entire statement was

exculpatory and she did not incriminate herself in any manner.

Thereby it was held that grant of pardon to her is not proper.

(iii) Vemireddy Satyanarayan Reddy & Other V/s. State

of Hyderabad, 1956 S.C. 379 ((S) AIR V.43,C.67 May), “In this case

appellants and others were communist, charged for the murder of one

congress worker. They are held guilty on the basis of testimony of

accomplice PW14 who witness the incident and accompany with the

accused, after a quarrel with his parents. Thereby he cannot be held

as a accomplice and his testimony cannot be relied.

(iv) Joga Gola V/s. State of Gujarat, 1982 S.C.C.(Cri.)

141, in which it has been held, “the testimony of the approver is

wholly exculpatory and falsely implicating the others cannot be relied.

(v) Narain Chandra Biswas & Others V/s. Emperor,

AIR 1936 Culcutta 101, in which it has been held, “accomplice

witness is not concerned with the crime but his participation is

limited to the knowledge that crime is to be committed. He cannot be

called as a accomplice.”

...94/



(vi) Piara Singh V/s. State of Punjab, AIR 1969 S.C.

961, in which it has been held, “an accomplice is undoubtedly a

competent witness. His participation in the commission of offence is

to be established in material particulars by independent evidence.”

(vii) Babuli V/s. State of Orissa, AIR 1974 S.C. 775, in

which it is held, “the approver was tendered pardon at a very late

stage of the trial, that is after 31 witnesses were examined. The

prosecution has laid itself open to the criticism that pardon was

tendered to one of the accused at the fagend of the trial in an effort to

fill up the lacuna in its case.”


principles laid down are undisputed. The rulings, however, are

inapplicable since on the facts it has been established in this case

that, the evidence of approver is incriminating.

119. Learned Counsel Shri S.R. Pasbola also placed reliance on

the value to be given to the testimony of accomplice witness i.e.

(a) Krishnalal Naskar and others, etc. V/s. The State, 1982 CRI. L.J.

1305 (b) Rameshwar S/o Kalyan Singh V/s. State of Rajasthan,

A.I..R. (39) 1952 S.C. 54, (c) Shamsher Khan V/s. State (NCT of

Delhi), AIR 2000 S.C. 3662, (d) Ravinder Singh V/s. State of

Haryana, AIR 1975 S.C. 856, (e) Niranjan Singh V/s. State of

...95/



Punjab, 1996 S.C.C. (Cri) 939, (f) Bhuboni Sahu V/s. The King AIR

(36) 1949 Privy Council 257, (g) Khagendra Gahan V/s. The State,

1982 CRI. L.J. 487, (h) Renuka Bai @ Rinku @ Ratan & Anr. V/s.

State of Maharashtra, 2006(4) Crimes 46 (SC), (i) Sarvanabhavan

and Govindaswamy V/s. State of Madras, 1966 Cri. L.J. 949 (Vol. 72,

C.N. 286) = AIR 1966 S.C. 1273 (V 53 C 245), (j) Sarwan Singh

Rattan Singh V/s. State of Punjab, AIR 1957 S.C. 637 (V 44, C 95

Oct.), (k) Dagdu and Ors. V/s. State of Maharashtra, AIR 1977 S.C.

1579, (l) The State of Bihar V/s. Basawan Singh, AIR 1958 S.C. 500

(V.45 C. 73), (m) Sheshanna Bhumanna Yadav V/s. State of

Maharashtra, AIR 1970 S.C. 1330.

The principles laid down in the above cited rulings are

undoubtedly settled but do not help the defence as the facts in the

present case and cited supra are not similar as discussed earlier.

120. Learned Counsel Shri S.R. Pasbola also placed reliance on

(i) Ram Narain V/s. State of Rajasthan.,

AIR 1973 S.C. 1188 = 1973 S.C.C.(Cri.) 545,

in which it has been held, “conviction does not become

illegal merely because it is based on uncorroborated testimony of an

accomplice. The Court should first evaluate the approver's evidence

and if the same is found uninspiring and unacceptable then

...96/



corroboration would be futile and unnecessary.”

(ii) Chonampara Chellappan V/s. State of Kerala,

1979 S.C.C. (Cri) 1029,

in which it has been held, “corroboration of evidence of

accomplice witness in respect of material particular is only necessary,

it should not be tainted. Corroboration is to be proved by the evidence

of independent and reliable witnesses.”

(iii) Balwant Kaur V/s. Union Territory of Chandigarh,

1988 S.C.C.(Cri.) 1,

in which it has been held, “independent corroboration in

respect of material particulars of evidence of accomplice needed as a

rule of law and practice. Accused could not be convicted solely on the

basis of uncorroborated testimony of accomplice and accused entitled

to benefit of doubt.”

(iv) Rameshwar S/o Kalyan Singh V/s. State of Rajasthan,

AIR (39) 1952 S.C. 54,

in which it has been held, “corroboration is a rule of necessity to

rely on the testimony of accomplice.”

(v) Data Ram & Others V/s. State of Rajasthan,

1977 Cri. L.J. 1428, as well as in

...97/



(vi) Bhiva Doulu Patil V/s. State of Maharashtra

AIR 1963 S.C. 599 (V 50 C 93),

in which it has been held, “court should not ordinarily

convict unless the evidence of the approver is corroborated in material

particulars qua the accused and if more than one, qua each accused”.

(vii) Lalchand etc. V/s. State of Haryana,

AIR 1984 S.C. 226,

in which it has been held, “evidentiary value of the

testimony of approver after the laps of 20 months cannot be relied.”

I have carefully gone through the above cited rulings. The

principles laid down are settled principles of Law. But, they are not

helpful to the accused in the present set of circumstances as the facts

are different as shown earlier.

121. Learned Advocate Shri Vilas Naik placed reliance on :

(i) Suresh Sakharam Nangare V/s. State of Maharashtra,

Criminal Appeal no.1606 of 2008,

in which it has been held, “when there is no direct evidence

showing the complicity of the appellant/accused and he has been

convicted on the sole evidence of approver as to his presence and

participation in the crime. It will not be safe to rely on the sole

...98/



testimony of P.W.7 the approver which lacks corroboration.”

(ii) Sarwan Singh V/s. The State of Punjab,

AIR 1957 SC 637 = 1957 SCR 953,

in which it has been held, “the appreciation of approver's

evidence has to satisfy the double test i.e. he is reliable witness and

his evidence receives sufficient corroboration.”


principles laid down in the above cited rulings are not applicable to

the case in hand as the facts of the case in hand are not similar.

122. Spl.P.P. Ms. Kalpana Chavan relied on following

citations :

(i) Mrinal Das V/s. State of Tripura, 2011LAWS(SC)966,

in which it is held, "the statement of approver inspires

confidence including the conspiracy part which gets full support from

the narration of the occurrence given by the eye witnesses more

particularly as to the deployment of some of the offenders for reporting

to others about the movement of the victim hence there is nothing

wrong in accepting his entire statement."

...99/



123. Learned Senior Advocate Shri Adhik Shirodkar, Advocate

Shri S.R. Pasbola and Spl.P.P. Ms. Kalpana Chavan placed reliance

on :

(i) Suresh Chandra Bahri v/s. State of Bihar, 1995 Supp (1) SCC 801995 SCC (Cri) 60 = AIR 1994 S.C. 2420

in which it has been held “corroboration in material

particulars as well as its nature, extent and credibility is necessary.

At the same time approver must satisfy the double test of

reliability/credibility and corroboration in material particulars to

prove the conspiracy as well as ingredients of the commission of the

crime. While appreciating the evidence Court should be slow to depart

from the rule of prudence.

As per section 306(4) of Code of Criminal Procedure that

approver shall not be set at liberty during the termination of the trial

against the accused persons and the detention of the approver in

custody must end with the trial. Section 306(4) clause (b) casts a duty

on the court to keep the approver under detention till the termination

of the trial and thus the provisions are based on statutory principles

of public policy and public interest, violation of which could not be

tolerated. But one thing is clear that the release of an approver on bail

may be illegal which can be set aside by a superior court, but such a

release would not have any effect on the validity of the pardon once

...100/



validly granted to an approver”.

“The essential ingredient of the offence of criminal

conspiracy is the agreement to commit an offence. In a case where the

agreement is for accomplishment of an act which by itself constitutes

an offence, then in that event no overt act is necessary to be proved by

the prosecution because in such a fact situation criminal conspiracy is

established by proving such an agreement.”

“The object of Section 306 therefore is to allow pardon in

cases where heinous offence is alleged to have been committed by

several persons so that with the aid of the evidence of the person

granted pardon the offence may be brought home to the rest. The

basis of the tender of pardon is not the extent culpability of the person

to whom pardon is granted, but the principle is to prevent the escape

of the offenders from punishment in heinous offences for lack of

evidence”.

Considering the principles laid down in the cited supra it

has been held that release of an approver on bail may be illegal but it

does not affect the validity of grant of pardon. But the principle is to

prevent the escape of the offenders from punishment in heinous

offences for lack of evidence. Thereby, the principles are very much

helpful to the prosecution than the defence.

...101/



124. The evidence of P.W.05 Kiran Pujari is in respect of

conspiracy between the accused Suhas Roge, Jaya Chheda as well as

Hitesh Bhagat by joining the hands with Harish Mandvikar as well

as others. His testimony is corroborated by his statement (Exh.340)

in material particulars and the same remained unshatter during his

detail cross examination. The testimony of P.W.62 Ajimuddin Shaikh

is in respect of the conspiracy between accused Harish Mandvikar,

Kiran Amle and accused no.1 Pravin Shetty, driver. His evidence is

also found to be cogent, reliable and in consonance with his

statement (Exh.657A) recorded by the Ld. Chief Metropolitan

Magistrate. The evidence of both these approvers is found to be

credible and cogent coupled with the evidence filed on record by the

prosecution, though they were examined at belated stage.

EXTRA JUDICIAL CONFESSION BY ACCUSED NO.4 SUHAS ROGE:125. The evidence of P.W.15 Vinod Madan Naik, P.W.16 Joseph

Robert Rodrigues and P.W.68 Sanjay Ramchandra Shirke, are on the

point of extra judicial confession of the accused no.4 Suhas Roge. It

has come in the evidence of P.W.16 Joseph Rodrigues that since 1981,

he is residing at Malbar Hill with his sister and working as a car

mechanic as well as doing a job of driver. He met the accused Suhas

Roge in Hanging Garden at Ashram of Gagangiri Maharaj. Thereby,

...102/



he was acquainted with accused Suhas Roge and their friendship

grew. When accused Suhas Roge asked him for help, he also shown

his willingness to cooperate. Accused Suhas Roge told him that he is

bodyguard of Suresh Bhagat (Mataka king) and the accused Jaya

Chheda is the wife of Suresh Bhagat. He stated that he went to the

house of accused Jaya Chheda with accused Suhas Roge for 6 to 7

times. He found that there was enmity between accused Suhas Roge

and Suresh Bhagat on account of control of mataka business.

Thereby, accused no.4 was removed by Suresh Bhagat as a

bodyguard.

126. It has further come in the evidence of P.W.16 Joseph

Rodrigues that accused Suhas Roge, Jaya Chheda, Kiran Pujari and

Hitesh Bhagat were intending to take over the mataka business of

Suresh Bhagat, as he over heard the said conversation, when he was

driving their vehicle. Though accused Hitesh Bhagat was residing at

Worli, he used to come at the house of Jaya Chheda at Ghatkopar. He

also used to leave Kiran Pujari at Mulund. At one time, when he was

proceeding to Khandala, he heard the conversation with Kiran Pujari

in respect of raid by Narcotic Unit in the house as well as office of

Suresh Bhagat. Kiran Pujari was with him and he was talking with

somebody and suggesting to take the search of the opium on the

...103/



kitchen's platform. Thereby, he came to know that opium was found

at the house of accused Suresh Bhagat. After 23 days, when he was

also driving the vehicle of Suhas Roge, when they were proceeding

towards Ghatkopar, Kiran Pujari informed him that Suresh Bhagat

was arrested in opium case.

127. It has further come in his evidence that after 1 or 1 ½

years, accused Suhas Roge called him at Hanging Garden and

introduced Harish Mandvikar, who is a 'Bhai', residing at Kandivali,

Borsapada. After 10 to 15 days, Kiran Pujari, Suhas Roge, Harish

Mandvikar reached the house of Jaya Chheda. Thereafter, for about

one hour, accused Suhas Roge and Kiran Pujari sat in the car

stationed near one canteen for tea. At the relevant time, he

overheard the talks about eliminating Suresh Bhagat.

128. It has further come in his evidence that in the year 2008,

in the evening, he got phone call from accused Suhas Roge and called

him at the house of Sanjay Shirke at Tin Batti area. Where P.W.15

Vinod Naik was also present. Sanjay Shirke went to bring the drinks.

They were watching the news of the said accident on T.V. At the

relevant time, accused Suhas Roge told that he had caused the so

called incident of accident with the help of accused Harish

...104/



Mandvikar. He stated as “ye maine Harish Mandvikar ko supari

dekar karvaya” (I have done it by giving contract to Harish

Mandvikar). After hearing, he got frightened and proceeded to the

house. On the next day, at about 6 a.m., he received the phone call

from Suhas Roge to come with the vehicle at about 7 a.m, as he was

standing at Chandralok Building. Thereafter, they proceeded to

Bhayender. Accused Suhas Roge called Harish Mandvikar. Then they

took tea and thereafter, Suhas Roge asked him to bring the bag from

TATA Sumo. While carrying the bag, he opened the chain and saw

the bundles of currency notes of Rs.1000/ denomination. He handed

over it to the accused Harish Mandvikar. Thereafter, they proceeded

towards Ghatkopar and Harish Mandvikar proceeded towards

Mulund. At the same time, Kiran Pujari was awaiting at Mulund

check naka with his vehicle. Accused Suhas Roge sat in the vehicle of

Kiran Pujari and directed him to follow them for about 1 km..

Thereafter, accused Suhas Roge left the car and sat in his car and

proceeded towards Walkeshar. After 45 days i.e. after the arrest of

accused Suhas Roge, P.W. 16 Joseph Rodrigues received the phone

call from one lady to leave Mumbai, otherwise threatened to

eliminate him. Therefore, he went to Ajmer (Rajasthan) and then to

Kolhapur. Thereafter, he received the phone call from his wife that

police were calling him. Thereby, on 1/11/2009, he returned to

...105/



Mumbai and on 4/11/2009, appeared before ACP Duraphe. On

9/11/2009, he went to Magistrate Court and gave the statement

before the Magistrate.

129. In his cross examination, P.W.16 Joseph Rodrigues

admitted that he is residing in Parvati Nagar hutment area which is

owned by the customs/collector. His wife is handicapped. He returned

to Mumbai after 17 months of the incident of threats. In his cross

examination, he also admitted that he prosecuted in the year 2007

u/s. 365, 342, 323, 504, 506 r/w. 34 of Indian Penal Code in which

Sanjay Shirke was coaccused, for kidnapping and beating the girl

and her friend. Said matter was compromised. He further admitted

that he saw the news of the death of Suresh Bhagat on T.V. on

13/6/2008. He heard the conversation of killing of Suresh Bhagat in

the month of January and February 2008. From that time till

watching T.V., he did not hear anything about the said conspiracy. He

is acquainted with Vinod as well as Sanjay Shirke as their families

are in visiting terms. After hearing the news, he came to know that it

was an incident of murder and thereby, he was surprised. But he did

not disclose the said fact to anybody.

...106/



130. In his further cross examination, he admitted that he is

acquainted with the employee/driver of the accused as he was calling

him for their meetings. He heard the conversation of taking over

mataka business in the year 200506. He also admitted that it was

his feeling that he came to know that Suhas Roge falsely implicated

Suresh Bhagat in opium case and it was his case that Suhas Roge,

Jaya Chheda, Kiran Pujari and Hitesh Bhagat were cheating. He

also admitted the conversation between Kiran Pujari and Suhas Roge

while taking tea about the elimination of Suresh Bhagat by accused

and thereby, he felt that Suhas Roge and Kiran Pujari are dangerous

persons and it would be better to disassociate from them. Despite of

that, he visited the house of Sanjay Shirke on the day of the incident

as he was called. All these admissions in the cross examination do

not falsify the witness and on the other hand amount to admission

even by the defence. Such type of the admissions were given by

P.W.16 in his cross examination when he was cross examined by

Advocate for accused no.3 and Advocate for accused no.7. All these

admissions do not anyway derogate the testimony of witness. The

conduct of the witness appears to be natural. Thereby, it is obvious

that instead of destroying his examinationinchief, defence has

strengthened his testimony to corroborate his statement (Exh.883).

...107/



131. It has come in the evidence of P.W.15 Vinod Madan Naik

that he is knowing the accused Suhas Roge when he was working in

Sahitya Sangh Mandir as electrician and doorkeeper. He is also

knowing the accused Suhas Roge as his brother was looking after the

pan shop of his maternal aunt's son. He used to work with accused

Suhas Roge in Ashram of Gagangiri Maharaj as electrician. He is

having mobile no.9969504899 which was given by accused Suhas

Roge. On 12/6/2008, accused Suhas Roge called him with chisel and

hammer and to burn the magic dolls as guided by the enchanter

(mantrik). On the next day i.e. 13/6/2008, he went to the house of

accused Suhas Roge and then proceeded to the house of Jayabhabhi

(accused Jaya Chheda) at Ghatkopar. He used to visit her house

various times. At about 6.30 p.m., she handed over two bags wrapped

in the newspaper in plastic carry bag. Accused Suhas Roge paid

Rs.1000/ and informed him to proceed towards 'McDonald' at

Borivali, by taxi. At about 7.30 p.m., he reached and stood there. One

boy came there and asked him whether he came there as per

direction of accused Suhas Roge. The person told that whether he is

Gotya and asked P.W.15 Vinod Naik to make phone call to Suhas

Roge. Upon confirmation over the phone from accused Suhas Roge,

he handed over the carry bag to Gotya, as per earlier instructions.

Thereafter, he returned to Ashram at 10.30 p.m..

...108/



132. P.W.15 Vinod Madan Naik further states that at about

10.30 p.m., Sanjay Shirke and accused Suhas Roge came there. Then

they proceeded to the house of Sanjay Shirke where they consumed

liquor. While watching news on T.V. channel that mataka king

Suresh Bhagat along with seven persons died in the accident.

Accused Suhas Roge told that “Amhi aamchya dushmanala khalas

kele” (We eliminated our enemy). Thereafter, at 2.30 a.m., accused

Suhas Roge proceeded to his house and he came to Ashram. On the

next day i.e. on 15/6/2008, he went to Khandeshwar with accused

Suhas Roge and his wife Nainabhabhi. While returning, accused

asked his wife to go to the home and they both proceeded towards the

house of accused no.7 Jaya Chheda. After 5 to 6 days, he learnt that

accused no.4 has been arrested in the case of murder of Suresh

Bhagat. He admitted the correctness of his statement recorded by the

Magistrate dated 20/9/2008 (Exh.444). It is to be noted that this is

practically not denied to the above testimony of the witness.

133. During his cross examination, he admitted that the

incident of handing over the bundles to Gotya took place on

13/6/2008. But he never disclosed the said fact to anybody till

recording of his statement. He used to take liquor if anybody serves.

...109/



On that day, he did not drink heavily. He felt that Suhas Roge might

have done the said incident when he uttered the word that “Amhi

aamchya dushmanala khalas kele” (We eliminated our enemy). He

never informed the said fact to anybody from 13/6/2008 to 5/8/2008

till police asked him. All these admissions are crystal clear to show

that the testimony of P.W.15 Vinod Naik remained not only intact but

the same has been only reiterated in his cross examination.

134. During his cross examination, he volunteer that he used

to go with Suhas Roge at the house of accused Jaya Chheda. Nobody

was accompanied them. He was not entering the house of Jaya and

used to sit in his car. Police did not ask him about the black magic

i.e. burning of dolls and thereby, he never stated so. They reached the

house of Sanjay Shirke, at about 10.00 p.m. and they were present till

1.30 a.m. He again admitted that he was not frightened after hearing

the words of Suhas Roge that “Amhi aamchya dushmanala khalas

kele” (We eliminated our enemy). They did not ask accused Suhas

Roge about the said talk and he ignored the said talk. It is admitted

that P.W.15 Vinod Naik was suspended from Government service and

working as an electrician and that too, sometimes with accused

Suhas Roge. He used to accompany the accused as and when called.

It also appears on record that on payment of Rs.1000/ by Suhas

...110/



Roge, he reached two bundles of currency notes to one Gotya. At the

same time, at the instance of accused Suhas Roge, he went to the

house of Sanjay Shirke. Question arose as to how such man can dare

to ask accused Suhas Roge regarding the incident. His testimony is

found to be cogent, reliable and trustworthy. There is no reason to

disbelieve the same. The evidence proves the extra judicial confession

given by accused no.4 Suhas Roge to the aforesaid two witnesses.

135. By examining P.W.68 Sanjay Shirke, it has come on the

record that since birth, he is residing at Malbar Hill and looks after

the business of saloon of his father. He is also looking the business of

tours and travels. When in the year 199495, Swamiji came to

Ashram of Gagangiri Maharaj, Malbar Hill, he and accused Suhas

Roge were volunteers. He is also a social worker and contested BMC

as well as State Assembly elections. He admitted that he arranged

telephone booth to one Jahida Khan @ Rodrigues, who is

handicapped and residing in Malbar Hill, who is wife of P.W.16

Joseph Rodrigues, who is mechanic. Since the year 200304, he is

knowing them. Accused Suhas Roge was running newspaper namely

“Mumbai Crime” whereas he was working as Executive Editor. He

used to contact with Suhas Roge but he did not know the telephone

number.

...111/



136. The witness further deposed that on 13/6/2008, he was at

Malbar Hill. He read the newspaper that accused Suhas Roge was

arrested by police. He was called at Crawford market. He did not

remember whether his telephone was recorded by the police and

made inquiry about P.W.16 Joseph Rodrigues. He stated that it might

have happened that on 13/6/2008, at about 9.30 to 10.00p.m., Suhas

Roge came to his house in his Maruti van. He did not support the

prosecution and therefore, learned Special P.P. cross examined him

after the permission from the Court.

137. During his cross examination by learned Special P.P., he

admitted that he did not remember whether Vinod Naik came to his

house. Witness Joseph, his wife and daughter might have come to his

house as they were having visiting terms with his family. It did not

happen that news strip “Mataka King Suresh Bhagat killed in an

accident” was running on the television and it did not happen that

Suhas Roge overwhelmingly raised hands and said that he had

finished his enemy. He also denied that thereafter, he went to bring

the snacks and cold drinks for Suhas Roge. He did not remember

whether he brought snacks and cold drinks for Suhas Roge, Vinod

...112/



Naik and Joseph Rodrigues. He did not know the relation between

Suhas Roge and Jaya Chheda as well as they were running mataka

business. He denied the recording of his statement of portion marked

A and B. But during examinationinchief of investigating officer

P.W.80 ACP A.T. Duraphe, this portion marked A and B was referred

and it was marked as portion marked A and B as it was recorded as

per the say of P.W.68 Sanjay Shirke. He admitted that the case was

lodged against him in respect of son of Joseph having consumed Tik

20.

138. By examining P.W.80 ACP A.T. Duraphe, prosecution

proved the statement of P.W.68 Sanjay Shirke. The portion marked A

and B of the statement of Sanjay Shirke has been proved by the

investigating officer A.T. Duraphe. P.W.68 Sanjay Shirke did not

support the prosecution. It is to be noted here that he is not a

layman. He is politician and contested the election of State Assembly

as well as Corporation. He is also executive editor of the newspaper

“Mumbai Crime” which was run by accused Suhas Roge. His

admission that on the day of the incident, accused Suhas Roge might

have visited his house, lends support to the visit to his house.

...113/



139. (A) Learned Senior Advocate Shri Adhik Shirodkar placed

reliance on :

(i) Sahadevan and another v/s. State of Tamil Nadu,

(2012) 6 SCC 403,

in which it has been held, “where the prosecution

relies upon an extrajudicial confession, the court has to examine the

same with a greater degree of care and caution”.

(B) Learned Counsel Shri S.R. Pasbola placed reliance on:

(i) SK Yusuf V/s. State of West Bengal,

(2011)11 S.C (Cri) 754=2011 ALL MR (Cri) 2365 (S.C.),

in which it has been held, “Extrajudicial confession must

keep in mind that it is a very weak type of evidence and requires

appreciation with great caution. It must be established to be true and

made voluntarily and in a fit state of mind. The words of the witness

must be clear, unambiguous and clearly convey that the accused is the

perpetrator of the crime. It can be accepted and can be the basis of a

conviction if it passes the test of credibility.”

(ii) Sunil Rai Alias Pauya and Ors V/s. Union

Territory, Chandigarh,

(2012) 1 S.C.C. (Cri) 543 = (2012) 1 S.C.C. (Cri) 543,

in which it has been held, “extrajudicial confession

statement made orally before a person with whom maker of confession

...114/



has no intimate relationship. In such case confessional statement is

not a very strong piece of evidence and in any event it can only be used

for corroboration.”

(iii) Pancho V/s. The State of Haryana,

(2011)10 S.C (Cri) 165,

in which it has been held, “extrajudicial confession made

by the accused to the person of intimacy after the delay and delay is

not explained in such case evidence is not credible.”

(iv) State of M.P. V/s. Paltan Mallah & Ors,

2005 Cri. L.J. 918 SC,

in which it has been held, “extrajudicial confession of co

accused and his confession that the other coaccused gave him money

to murder the deceased/victim. However no substantive evidence is

against the other accused. In such case no conviction can be based on

extrajudicial confession of coaccused.”

(v) C.K. Raveendran V/s. State of Kerala,

2000 Cri. L.J. 497,

in which it has been held, “prosecution witness failed to

reproduce extrajudicial confession made to him in exact words or

even in the words as nearly as possible. Further his statement

showing that he consumed liquor along with accused and thereafter

accused disclosed the entire incident to him. Statement by accused

...115/



cannot be said to be voluntary and truthful one. On the other hand it

is outcome of consumption of liquor, both the witness as well as

accused. Thus said extrajudicial confession has to be excluded from

purview of consideration for bringing home the charge”.

(vi) S. Arul Raja V/s. State of Tamil Nadu,

(2010)3 S.C.C.(Cri) 801 = (2010)8 S.C.C.(Cri) 233,

in which it has been held, “extrajudicial confession is a

weak piece of evidence. Though it can be made the basis of conviction,

due care and caution must be exercised by the courts to ascertain the

truthfulness of the confession. Rules of caution must be applied before

accepting an extrajudicial confession. Before the court proceeds to

act on the basis of an extrajudicial confession, the circumstances

under which it is made, the manner in which it is made and the

persons to whom it is made must be considered along with the two

rules of caution: first, whether the evidence of confession is reliable

and second, whether it finds corroboration.”

(vii) Ajay Singh V/s. State of Maharashtra,

(2008) 1 SCC (Cri.) 371 = 2007 AIR SCW 3845,

in which it has been held, “while dealing with a stand of

extrajudicial confession, court has to satisfy that the same was

voluntary and without any coercion and undue influence, as well as

...116/



person to whom confession is made should be unbiased and not

inimical to the accused.”


that, extra judicial confession requires appreciation with great care

and caution regarding the voluntary and fit state of mind. Nothing is

brought on record that at the relevant time, that neither accused

Suhas Roge nor the witnesses were under intoxication. Thereby, the

principles laid down in the above cited rulings are not helpful to the

accused as the facts in hand and facts in the cited supra are not

identical.

140. Ld. Counsel Shri S.R. Pasbola submitted that while

examining the P.W.16 Joseph Rodrigues, prosecution never explained

the delay in a proper perspective and therefore his testimony cannot

be relied upon. Hence, he placed reliance on:

(i) Lahu Kamlakar Patil & Anr. V/s. State of

Maharashtra, 2013(1) Bom.C.R. (Cri) 631 S.C., (ii) Jagjit Singh

Alias Jagga V/s. State of Punjab, (2005)3 S.C.C. 689, (iii) Maruti

Rama Naik V/s. State of Maharashtra, (2003)10 S.C.C. 670, (iv)

State of Punjab V/s. Gurdeep Singh, LAWS(SC)19999114 and

(v)Surajit Sarkar V/s. State of West Bengal, 2013 CRI. L.J. 1137

(S.C.).

...117/



in which it has been held, “delay in examination of witness

itself not fatal to the prosecution but taken together with other facts

which demand explanation.”

I have gone through the above cited rulings, in which it

has been held that when there is a delay in examination of witnesses,

prosecution has to explain the delay. The witness i.e. P.W.16 had gone

to Ajmer and Kolhapur, therefore, the delay is properly explained.

The delay in recording statement of P.W.15 cannot be said to be perse

fatal. Therefore, the principles laid down in above cited rulings are

not helpful to the accused as the facts are different.

141. Learned Senior Advocate Shri Adhik Shirodkar placed

reliance on :

(i) Ram Charan and others v/s. The State of U.P.,

1968 CRI.L.J. 1473 SC,

in which it has been held, “if a statement of witness is

previously recorded under Section 164, Criminal Procedure Code, it

leads to an inference that there was a time when the police thought the

witness may change but if the witness sticks to the statement made by

him throughout, the mere fact that his statement was previously

recorded under Section 164 will not be sufficient to discard it. The

Court, however, ought to receive it with caution and if there are other

...118/



circumstances on record which lend support to the truth of the

evidence of such witness, it can be acted upon”.

(ii) Balak Ram and another v/s. State of U.P., 1974 CRI.L.J. 1486 SC,

in which it has been held, “the evidence of witnesses

cannot be discarded merely because their statements were recorded

under Section 164. Their evidence must be approached with caution.

Such witnesses feel tied to their previous statements given on oath and

have but a theoretical freedom to depart from the earlier version. A

prosecution for perjury could be the price of that freedom. It is, of

course, open to the court to accept the evidence of a witness whose

statement was recorded under Section 164, but the salient rule of

caution must always be borne in mind”.

Both these citations are in respect of evidentiary value of

statement of witnesses when previously recorded u/s.164 of Code of

Criminal Procedure and its settled position. P.W.16 Joseph Rodrigues

and P.W.15 Vinod Madan Naik have not resiled from their previous

statements. Therefore, the principles laid down in cited supra are not

branded in this case.

142. Ld. Spl.P.P.Ms. Kalpana Chavan placed reliance on :

(i) State of U.P. V/s. M.K. Anthony, AIR 1985 SC 48,

...119/



in which it is held, "if the evidence about extrajudicial

confession comes from the mouth of witness/witnesses who appear to

be unbiased, not even remotely inimical to the accused, and in respect

of whom nothing is brought out which may tend to indicate that he

may have a motive for attributing an untruthful statement to the

accused; the words spoken to by the witness are clear, unambiguous

and unmistakably convey that the accused is the perpetrator of the

crime and nothing is omitted by the witness which may militate

against it, then after subjecting the evidence of the witness to a

rigorous test on the touchstone of credibility, if it passes the test, the

extrajudicial confession can be accepted and can be the basis of a

conviction. In such a situation to go in search of corroboration itself

tends to cast a shadow of doubt over the evidence. If the evidence of

extrajudicial confession is reliable, trustworthy and beyond reproach

the same can be relied upon and a conviction can be founded thereon.”

(ii) Ajay Singh V/s. State of Maharashtra,

2007 AIR SCW 3845,

in which it is held that, "human mind is not a tape

recorder which records what has been spoken word by word. Though

it is not necessary that the witness should speak the exact words but

there cannot be vital and material difference. While dealing with a

...120/



stand of extra judicial confession, Court has to satisfy that the same

was voluntary and without any coercion and undue influence.”

(iii) R.Kuppusamy V/s.State (Ambeiligai),

2013 AIR SCW 1293,

in which it is held, "conviction on the basis of extrajudicial

confession to Village Administrative Officer (VAO) made immediately

after accused threw daughter in well. VAO not inimical towards

accused. Death of daughter confirmed by medical evidence. Presence

of accused in village at the relevant time and extra judicial confession

corroborated by evidence on record is proper to convict the accused.”


principles laid down in the above cited rulings are perfectly

applicable to the case in hand as the same appears as the witnesses

are unbiased and not having inimical terms, therefore, found to be

reliable.

143. It is to be noted here that by examining P.W.15 Vinod

Madan Naik, P.W.16 Joseph Robert Rodrigues and even P.W.68

Sanjay Ramchandra Shirke, to an extent prosecution proved the

extra judicial confession of accused Suhas Roge in respect of his

involvement in the murder of deceased Suresh Bhagat. There is no

variance in their statements. There is nothing to show that the extra

...121/



judicial confession was made involuntarily or in unfit state of mind.

The confession is unambiguous and clear in term. The evidence laid

by the prosecution in respect of extra judicial confession of accused

no.4 Suhas Roge is thus found to be cogent and reliable.

RECOVERY OF MOBILE OF ACCUSED NO.5 KIRAN AMLE

144. To arraign the accused no.5 Kiran Amle, prosecution has

examined his cousin P.W.59 Sandeep Bhiku Shirodkar, resident of

Mapusa, Goa. It has come in the evidence of P.W.59 Sandeep

Shirodkar that accused Kiran Amle is son of his aunt. On 18/6/2008,

he had come to Goa and stayed at his house along with his two

friends. They stated him that they had gone to Shirdi and while

returning, they came go to Goa. When accused Kiran Amle came to

his house, he had given his mobile handset of Nokia which did not

have the battery and SIM card. He gave the said mobile to police by

drawing panchanama (Exh.639). He also identified the said mobile

(Article 11) which was produced by him. By examining P.W.59

Sandeep Shirodkar, prosecution proved the seizure of mobile of

accused Kiran Amle under panchanama (Exh.639). The prosecution

has also examined P.W.69 API S.D. Barge and proved the seizure

panchanama (Exh.639/717) of mobile of Kiran Amle from the

possession of Sandeep Shirodkar.

...122/



145. At the time of the arguments, Ld. Advocate Shri Amit

Munde raised the objection that mobile (Article 11) which was seized

from the possession of P.W.59 Sandeep Shirodkar does not bears SIM

and battery. IMEI number mentioned on Article 11 is mismatched

with call detail record. The other subscribers whose mobiles have

been used by the accused are the witness. Without any incriminating

evidence of conspiracy, accused no.5 is impleaded as an accused.

While evaluating the evidence, it has come on the record that mere

mismatched of one number in the mobile does not affect the record of

call details. P.W.59 is his cousin. There is no reason to P.W.59

Sandeep to tell the lie against him. He produced the mobile which

does not bears SIM as well as battery as it was not handed over by

the accused. Therefore, the mobile (Article 11) which handed over by

accused no.5 Kiran Amle has been produced by P.W.59 Sandeep

Shirodkar. It has come on the record that while handing over the

mobile, accused Kiran Amle deliberately not handed over SIM as well

as battery to suppress the material fact. The subscriber detail record

of accused no.5 Kiran Amle is also having change in the name of his

father. Instead of 'Baban' deliberately it has mentioned as 'Bharat'.

Thereby it can be inferred that since beginning, he has taken due

care to suppress his identity for one or other reason because prepaid

...123/



application form bears his photograph. On the contrary

circumstances brought on record by the prosecution clearly shows

that at the time of incident, accused Harish Mandvikar used his

mobile that too, with his consent and thereby, within a short period,

he went to Mhapusa (Goa) and handed over to P.W.59 Sandeep

Shirodkar. Thereby, the grounds raised by the Advocate for the

accused in the defence of accused Kiran Amle has no substance. All

these objections are found to be baseless.

RELATIVES OF THE DECEASED

146. The prosecution has examined the relatives of the

deceased viz. P.W.17 Varsha Tushar Shah, who is the wife of deceased

Tushar Shah, P.W.32 Vinod Kalyanji Bhagat, who is the brother of

deceased Suresh Bhagat and P.W.45 Ashok Habu Kamble, who is the

father of deceased Kamlesh Kamble. P.W.17 Varsha Tushar Shah

deposed that she married Tushar Shah on 16/12/2007 and residing at

Worli with her inlaws. Her husband was businessman. Deceased

Suresh Bhagat was maternal uncle of her deceased husband. On the

day of the incident i.e. on 13/6/2008, matter was fixed for hearing in

Alibaug Court. She received phone call from the servant of Suresh

Bhagat and informed that Tushar is serious and informed about the

accident. On 14/6/2008, dead body of Tushar was brought to the home

...124/



and she also learnt that Suresh Bhagat was also no more. Two

months prior to the incident, her husband was under tension and

used to remain serious. When she asked, he stated her on a condition

not to disclose anybody that he is getting threats on phone call from

Suhas Roge, Jaya Chheda, Kiran Pujari, Chintu @ Hitesh Bhagat

and Arun Gawali, to leave the company of Suresh Bhagat. Her

husband also informed that Suhas Roge and Kiran Pujari threatened

him on the point of pistol (“pistol sar pe laga diya tha”) to leave the

company of Suresh Bhagat, otherwise he will be eliminated . Her

husband also informed that Suresh Bhagat already filed the

complaint to the police.

147. P.W.17 Varsha Shah in her cross examination by Senior

Advocate Shri Adhik Shirodkar for accused no.4 admitted that when

she came to know about the complaint made by Suresh Bhagat, she

thought that same will be beneficial. At the same time, she felt that

there is a danger to the life of her husband and Suresh Bhagat. She

did not disclose the said fact to her inlaws as she had promised

Tushar Shah of the confidentiality. Incident of pointing of pistol on

the part of the accused Suhas Roge took place in the Hotel at

Mumbai. After hearing the incident of pointing out the pistol, she

was frightened. She further denied that only Kiran Pujari pointed

...125/



out the pistol on the head of her husband Tushar Shah in the Hotel

in Mumbai and threatened him. She further admitted that her

husband Tushar was also running a business of Gems and colour

stones under the name and style M/s. Kalyan International. Her

husband and fatherinlaw has no concern with the mataka business

of Suresh Bhagat.

148. In her cross examination by Advocate Shri Pasbola, she

admitted that her husband Tushar was accused in NDPS Case at

Alibaug. He was roaming around Suresh Bhagat and accompanied in

the court, police stations, lawyers' office etc.. She asked her husband

whether Suresh Bhagat mentioned the fact of threats in the

complaint or not and her husband informed that it was not

mentioned so. She admitted that no threatening calls were received

by Tushar in her presence. She came to know from her inlaws that

there was quarrel on account of mataka business between accused

Jaya Chheda and Suresh Bhagat. In spite of her detail cross

examination, her testimony remained intact.

149. By examining P.W.17 Varsha Tushar Shah, it has come on

the record that deceased Tushar Shah was also the accused in NDPS

case in Alibaug Court. Deceased Tushar Shah also accompanied with

...126/



deceased Suresh Bhagat and at the time of the incident. The fact in

respect of threatening of her husband by Kiran Pujari & Suhas Roge

to leave the company of Suresh Bhagat otherwise he will be

eliminated remains on record which is also a strong circumstance on

record against accused Suhas Roge,Kiran Pujari,Jaya Chheda &

Hitesh Bhagat.

150. P.W.32 Vinod Kalyanji Bhagat is a brother of deceased

Suresh Bhagat. It has come in his evidence that deceased Suresh

Bhagat and one Jayantilal are his two brothers. They are having one

sister by name Vandana. His father Kalyanji was running mataka

business which was continued by his brother Suresh Bhagat. His

brother Suresh Bhagat was also running chemical and jewellery

business. Relationship between his brother Suresh and his wife Jaya

were spoiled. She was having illicit relations with accused Suhas

Roge. Their marriage, however, ended in divorce. Accused Jaya was

having illeye over mataka business. Prior to the incident, he went to

Canada. Before his departure, his brother Suresh became frightened

and informed the reason that Jaya Chheda, Hitesh Bhagat,Suhas

Roge and Kiran Pujari were threatening him to hand over his

property. They falsely implicated his brother in various cases.

...127/



Thereby, he made complaint before Commissioner of Police as well as

filed Writ petition before Hon'ble High Court.

151. In his cross examination, he admitted that during the

period from 199497 his relation with his brother Suresh were not

cordial due to misunderstanding. Later on, it was patched up. They

were having visiting terms. Defence was also taken that he was also

implicated in case of Narcotic Act and arrested from time to time. He

also admitted the dispute between them on account of cross

complaints against each other and that too, between him and

deceased Suresh Bhagat as well as against accused no.7 Jaya

Chheda. It has also brought on record that Suresh Bhagat also

lodged the complaint against him. His cousin Jayesh Sangoi also

lodged the complaint of extortion against him. He admitted the filing

of Writ Petition bearing no.20/2010. He admitted that he opposed the

bail application of accused no.7 Jaya Chheda and accused no.8

Hitesh Bhagat as he is intending that accused shall remain behind

the bar. It is the defence of the accused that another brother

Vasantbhai is also murdered in which is his niece Pratima Ambore is

an accused. During cross examination, defence has filed the certified

copies as well as copy of the chargesheet, complaint, application of

...128/



their cases as well as cross complaints which are at Exh.515 to

Exh.527.

152. It has further come in his cross examination that after the

death of Suresh Bhagat, he and his niece Tanujaben filed the

petitions before Small Causes Court, as a legal heirs of deceased

Suresh Bhagat. After the death of deceased Suresh, he meet

investigating officer, Poynad police station as well as L.C.B. (Crime).

He filed an application to the State of Maharashtra for the

appointment of Special Public Prosecutor in this matter and also

undertaken to pay the fees of the Special Public Prosecutor.

153. Upon perusal of the testimony of P.W.32, it reveals on

record that the relations between P.W.32 Vinod Bhagat and deceased

Suresh Bhagat were also strained and not cordial. Deceased Suresh

Bhagat as well as witness Vinod Bhagat were implicated in various

cases under NDPS Act. Accused as well as the witnesses were having

strained relations. It does not mean that his testimony is liable to be

thrown away. On the contrary, it is proved that relation between

deceased Suresh Bhagat and accused no.7 Jaya Chheda as well as

Hitesh Bhagat were strained and accused were having illeye over

...129/



mataka business by joining the hands with the accused Suhas Roge

and Kiran Pujari. This fact remains intact.

154. It has come in the evidence of P.W.45 Ashok Habu Kamble

that on the day of the incident i.e. on 13/6/2008, his deceased son

Kamlesh Kamble was present in Alibaug Court. At the relevant time,

he was standing outside the court because his son was attending the

date in the Court. Date was given at about 12:45 p.m.. He was

standing near Scorpio in which Kamlesh, Valmik, Suresh Bhagat and

other three persons sat and he went to Bus stand. At about 2 p.m., he

received call informing that Kamlesh received injury in the accident.

Therefore, he reached at Civil Hospital and saw that his son was

lying on the stretcher and sustained bleeding injuries on his head

etc.. He was advised for higher medical treatment at Mumbai.

Therefore, he was forwarded to Sion Hospital by Ambulance. On next

day i.e. on 14/6/2008, he received dead body of his son. Despite

sufficient opportunities, Advocate for the accused declined to cross

examine him. Therefore,his testimony remains unchallenged. By

examining P.W.45 Ashok Kamble,the facts brought on record that on

13/6/2008, deceased Suresh Bhagat,his son Kamlesh and other four

attended Alibaug Court. They left Alibaug at 12:45 p.m..

Immediately, within one hour, he received the message of

...130/



accident.His son died on the next day due to the impact of the

accident. This fact remains unchallenged.

155. All these testimonies of the relatives of the deceased co

relate each other in respect of the death of Suresh Bhagat, Tushar

Shah and Kamlesh Kamble.

ARREST & RECOVERIES

156. Prosecution relied on various panchanamas i.e. arrest

panchanama, recovery of mobiles, various cars, recovery of Rs.23.50

lakhs and Rs.8 lakhs at the instance of accused Harish Mandvikar

u/s.27 of Evidence Act, Rs.4 lakhs from approver Kiran Pujari, etc..

In support of their case, prosecution examined P.W.27 Shailesh

Shivram Patil (Exh.491). He deposed that on 14/7/2008, he came to

Crawford Market for purchase of some agriculture implements. One

police Havildar asked him for help by acting as a pancha and took

him to Crime Branch. Said office is situated on the first floor. One

muslim person was another pancha. One accused was saying that

some amount is kept in the house of his friend. Accused laid them in

Saibaba Nagar, Kandivali (W), in the hutment area. It was having

net type door. One boy opened the door and police asked that boy to

hand over the amount. He saw the amount, however, he cannot tell

...131/



the details. The police took the amount and left the place. Thereafter,

they returned to Crime Branch where he signed the panchanama

(Exh.492). He failed to state the contents of the panchanama. In his

cross examination by Ld. Spl.P.P., he admitted that accused also

signed the panchanama and panchanama was written by the police.

He also admitted that person took out the cash from iron cupboard

and handed over to the police. He signed the panchanama (Exh.493

colly.) because it was correct. In his further cross examination by Ld.

Advocate Shri Vilas Naik, he stated that panchanama was read over

to him. Both the panchas made the signatures simultaneously.

Though, he did not fully support the prosecution, he admitted his

signature on the seizure panchanama (Exh.493) as well as seizure of

cash by the police from Saibaba Nagar, Kandivali (W) and that too, at

the instance of the accused no.3 Harish Mandvikar. The material

piece of evidence is that he is supporting to the prosecution and

admitted its execution. Therefore, his testimony is found to be

reliable and trustworthy.

157. P.W.28 Nitin Shravan Dhepe deposed that he is an

agriculturist and also carries business of construction of compound

wall in his village. He is having coconut and betel nuts

farm/orchards. On 15/6/2008, when he was at Alibaug S.T. Stand,

...132/



police called him at Crime Branch office for panchanama. When he

went there, at about 8 to 8.30 p.m., two people were present. Then he

signed the panchanama. Again on the second day, he was called for 7

to 8 times. They went to Mumbai as per the call of the police. He was

sitting in the vehicle. Two persons were with them. He accompanied

by police and another two panchas. He signed 8 panchanamas on 2/3

different dates. Those dates may be 15,16,17, 18 June 2008. Out of

that he once came to Mumbai. When he came from Mumbai, he

signed one panchanama. He does not know the contents of the

panchanama. Therefore, he did not support the prosecution,

therefore, learned Special P.P. cross examined him. He admitted his

signature on the panchanama dated 18/6/2008, 19/6/2008, 20/6/2008,

21/6/2008 and 22/6/2008. He admitted that on 17/6/2008, he was

called by Alibaug Crime Branch Office. Another pancha Bhalchandra

Gharat accompanied him. Even during the cross examination, he

denied the search of the house of the accused/approver Ajimuddin

Shaikh as well as his personal search. He admitted that on

18/6/2008, he was called API Raut of Alibaug. He denied that on

19/6/2008, police called him at police station and accused Harish

Mandvikar was present. He denied the recovery of Rs.23.50 lakhs at

the instance of the accused Harish Mandvikar. He also denied the

recovery of three mobiles from the house of accused Harish

...133/



Mandvikar. He also denied the panchanama dated 20/6/2008 at the

house of one Parubai Mhatre. He also denied the panchanama of the

house of accused Jaya Bhagat @ Jaya Chheda on 21/6/2008 as well as

seizure of the papers. He also denied the seizure of mobiles from

Activa. He also denied the seizure of Nokia mobiles from time to

time. In his cross examination by advocate, he admitted that he

signed the panchanama under fear of the police.

158. P.W.29 Bhalchandra Jagannath Gharat deposed that on

16/6/2008, API More of LCB called him for panchanama of the

accident of the truck. He also signed the panchanama on 16/6/2008.

Some of them were in printed form. On 25/6/2008 and on 26/6/2008,

police obtained his 5 to 6 signatures in the office of LCB, Alibaug. He

admitted his signatures on the panchanama 15/6/2008, 17/6/2008,

18/6/2008, 19/6/2008, 20/6/2008, 21/6/2008 and 22/6/2008. During his

cross examination by the Special P.P., he denied the recovery on the

respective dates. On the contrary, during cross examination by

Advocate for the accused, he admitted that he was the pancha in

S.C.3/2010 which is of accused Babloo Shukla and others. He

admitted his good relations with PI Shri V.K. More. He admitted that

there is slope and curve on the said road between Dharmatar Creek

bridge to Fauji Dhaba.

...134/



159. P.W.27, P.W.28 and P.W.29 are the witnesses on the

various panchanamas of arrest of accused Pravin Shetty and

approver Ajimuddin Shaikh dated 15/6/2008, house search

panchanama of both of them dated 17/6/2008, production

panchanama of Maruti Swift car bearing no.MH02AP4563 dated

18/6/2008, memorandum panchanama and recovery panchanama

(Exh.761 & Exh.762) at the instance of Harish Mandvikar dated

19/6/2008 and 20/6/2008, house search panchanama of accused no.3

Harish Mandvikar dated 20/6/2008 regarding recovery of three

mobile phones, house search panchanama of accused no.1 Pravin

Shetty dated 20/6/2008, house search panchanama of accused no.7

Jaya Chheda dated 21/6/2008, panchanama of the recovery of

muddemal produced by Santosh Gupta dated 22/6/2008, recovery of

mobile handset of accused Kiran Amle from P.W.59 S.S. Shirodkar

dated 22/6/2008, recovery of three mobile handsets at the instance of

accused Suhas Roge from Activa motorcycle dated 31/6/2008 and

recovery of Rs.8 lakhs under memorandum panchanama at the

instance of accused Harish Mandvikar dated 14/7/2008 from the

house of Anthony Raj Nanya Dravid. Although, these panchas have

merely admitted their signatures. The panchanamas are duly proved

by P.W.78 I.O. V.K. More, P.W.62 approver Ajimuddin Shaikh, IO

...135/



P.W.53 PI Sheetal Raut, P.W.56 IO K.S. Shengle as well as at the

instance of witness P.W.16 Joseph Rodrigues, P.W.77 Anthony Raj

Nanya Dravid and P.W.59 Sandeep Shirodkar. Though, the panchas

did not support the prosecution, all the panchanamas have been duly

proved by the investigating officers.

160. (A) Learned Advocate Shri Vilas Naik placed reliance on:

(i) Mohd. Hussain Babamiyan Ramzan V/s. State of

Maharashtra, 1994(100) CRLJ 1020 BOM, in which it has been held,

“it is expected that I.O. will take independent panch witnesses and if

knowingly he has taken pliable witness as a panch entire raid

becomes suspicious and it would not be sufficient to base the

conviction.”

(ii) Benard Chapanga V/s. The State of Maharashtra,

2003 (2) ALD Cri 121 = 2004 (Supp) Bom. C.R. 183, in which it has

been held, “witness had already acted as a panch in some cases

cannot be stamped as liar. Acting as a panch witness in previous

cases does not by itself and alone disentitle him of creditworthiness.

His evidence has been examined with proper approach guarded by

normal human experience and prudence of prudent person. Thereby

the principle laid down in the above cited ruling is not helpful to the

accused but it helps the prosecution though the panchas are

...136/



previously acted as a panch.”

(B) Learned Spl.P.P. Ms. Kalpana Chavan placed reliance

on:

(i) The State of Maharashtra v/s. Prakash Dhawal

Khairnar (Patil) & Ors., 2001 ALL MR (Cri) 222, in which it has

been held, “The reticence on the part of people to become a witness, of

which judicial notice can be taken, leaves the Investigating Officer

with no other option but, to repeatedly have the same persons as a

pancha. In view of fact that nobody volunteers to act as panch in

police case investigating officer is left with no option but to use the

same person as a panch.”

(ii) Anter Singh v/s. State of Rajasthan, AIR 2004

Supreme Court 2865, in which it has been held, “if panch witnesses

turn hostile, which happens very often in criminal cases, the evidence

of the person who effected the recovery would not stand vitiated”.

(iii) Lachhman Ram and others v/s. State of Orissa,

1985 SCC (Cri) 263, in which it has been held, “testimony of the

panchas will not become doubtful merely on their failure to identify

the accused”.

(iv) State Govt. of NCT of Delhi v/s. Sunil & Anr.,

2001 (1) Crimes 176, in which it has been held, “Non attestation of

seizure memo by independent witnesses cannot be ground to disbelieve

...137/



recovery of articles seized consequent upon statement of accused. No

requirement either under Section 27 Evidence Act or under Section

161 Cr.P.C. to obtain signature of independent witnesses. When

recovery is effected pursuant to statement of accused document

prepared by I.O. need not necessarily be attested by independent

witnesses. Court has to believe version of police to be correct if it is

otherwise shown to be unreliable”.

I have gone through the above cited rulings. The principle

laid down in above cited rulings is perfectly applicable to the case in

hand. It is noted that nobody volunteers to act as a pancha in police

case. Thereby, investigating officer is left with no option but to use

the same person as a pancha. In the light of the principles cited

supra by the learned Spl.P.P., the citations submitted by the

Advocate Vilas Naik are not helpful in the present case.

161. There is no reason to disbelieve the testimony of the

investigating officers when they carried out the investigation while

discharging their duties. Thereby, I am of the opinion that though the

panchas did not support the prosecution case, it does not affect the

evidence which laid by the prosecution and thereby, it is found to be

...138/



reliable and trustworthy and thereby, prosecution successfully proved

the panchanamas of spot (Exh.609), seizure of pistol and mobiles

from Scorpio (Exh.733), seizure of mobiles (Exh.604, Exh.717,

Exh.762 & Exh.770), seizure of amount of Rs.8 lakhs from the

possession of P.W.77 Anthony Raj Nannya Dravid (Exh.493), recovery

of Rs.23.50 lakhs from the possession of P.W.39 Arvind Modasia

(Exh.760 & Exh.761) as well as recovery of Rs.4 lakhs from the house

of approver Kiran Pujari (Exh.627 & Exh.627A), seizure of Maruti

Swift car and Maruti Zen car (Exh.508, Exh.615 & Exh.628), search

panchanama of approver Kiran Pujari, accused no.7 Jaya Chheda

and accused no.8 Hitesh Bhagat (Exh.786, 788 & Exh.789).

CALL DETAIL RECORD (CDR) & SUBSCRIBER DETAIL RECORD (SDR)

162. It is the case of the prosecution that accused hatched the

conspiracy for committing the crime for which they used the mobiles

in their possession, even of the mobiles are subscribed by others. The

list of the name of the accused/witness as well as their mobile

numbers and its subscriber with International Mobile Equipment

Identification (IMEI) number is given as under :

...139/



Sr.No.

Name of the

accused/witness

who used the

mobile

Mobile No. CDR (Exh.)

SDR (Exh.)

IMEI No. (as mentioned in the

panchanamas &/or as found on the

handsets)

Name of Subscriber

Art. No.

1. A.No.1 Pravin Shetty

9967736462 Ex.694 X64 Self

2. Approver Ajimuddin

Shaikh

9324260303 Ex.625 X44/ Ex.429

V.D.Pawar (PW 10)

3. A.no.3 Harish

Mandvikar

9867547490 Ex.648&

Ex.700

Ex.646 35532014381472 Kiran Amle (A.no.5)

Art.11

A.No.3 Harish

Mandvikar

9833507523 Ex.690 X63 352936023018566 Self Art. 06

4. A.No.4 Suhas Roge

9222003157 Ex.653 X45X58

ESN of 1 3 BB 68 Moh.Kashif (P.W.11)

Art.13

9920960871 Ex.685 X59 352936023911810 R.R.Sawant (P.W.12)

9930159144 Ex.687 X60 353660010118408 N.N. Roge Art.08

5. Approver Kiran Pujari

9870557511 Ex.635 X49/X51

358997011074171 P. H. Patil (PW21)

Art.30

6. A.no.5 Kiran Amle

9867547490 Ex.648&

Ex.700

Ex.646 35532014381472 Self (used by A.no.3)

Art.11

7. A.no.7 Jaya

Chheda

9833418884 Ex.689 X62 Self

...140/



Sr.No.

Name of the

accused/witness

who used the

mobile

Mobile No. CDR (Exh.)

SDR (Exh.)

IMEI No. (as mentioned in the

panchanamas &/or as found on the

handsets)

Name of Subscriber

Art. No.

8. A.no.8 Hitesh Bhagat

9920155555 352913029438973 Self

9. P.W.02 Adv.S.S. Shirsat

9892222379 Ex.647 Ex.645 Self

10. P.W.77 Anthony Dravid

9833110177 Ex.688 Ex.757/Ex.758/

X61

Self

163. At the time of the arguments, learned Spl.P.P. Ms.

Kalpana Chavan submitted the chart along with application

(Exh.850), showing the names of the accused, mobile number which

they used, in whose name mobile number stands and the witness

examined as well as their details of contacts i.e. on the basis of call

detail record between them.

164. P.W.10 Vinayak D. Pawar stated that though the prepaid

application form (X44/Exh.429) has his signature, his PAN card and

electricity bill is there, he is not using mobile no.9324260303. P.W.62

approver Ajimuddin Shaikh deposed that he purchased the mobile in

...141/



local market and using the same. By examining P.W.55 Nodal Officer

R.S. Gaikwad, prosecution proved the letter issued by I.O. (Exh.624)

and its call details (Exh.625). Though call detail record does not bear

the certificate in the prescribed form u/s.65(B) of Evidence Act,

prosecution examined P.W.55 R.S. Gaikwad, Nodal Officer of

Reliance Mobile and proved the call detail record.

165. It has come in the evidence of P.W.11 Mohd. Kashif Abdul

Majid that subscriber detail record (X45) and xerox copy of his

license does not bears his signature. He admitted that Article 2 is his

original driving license. He admitted that he was running STD booth

and used to sale SIM cards. Though he denied the signature on bare

comparison of signature on Article 2 driving license and signature on

his subscriber detail record (X45 and X58) are found closely similar.

By examining P.W.61 Darshansingh Randhawa, prosecution has

brought on record xerox copy of his subscriber detail record (X58).

The letter issued by P.W.61 in respect of his subscriber detail record

is at Exh.652. Senior Executive of TATA Communication issued a

certificate in respect of the said telephone no.9222003157 standing in

the name of P.W.11 Mohd. Kashif. It was found in the possession of

Suhas Roge. It is established that accused no.4 Suhas Roge used the

...142/



mobile no. 9222003157, though it is in the name of P.W.11 Mohd.

Kashif.

166. It has come in the evidence of P.W.19 Amit Pandurang

Patil that Kiran Pujari is his childhood friend. P.W.21 Pandurang

Patil is father of P.W.19 Amit Patil. Copy of the letter issued by the

Additional Commissioner of Police in respect of subscriber call record

and call detail record of mobile no.9870557511 is at Exh.633.

Subscriber detail record of P.W.21 Pandurang Patil are at X51 and X

49 colly. The reply letter issued by the Nodal Officer P.W.57

Sudhakar Musale is at Exh.634 and call detail record are at Exh.635.

P.W.19 Amit Patil and P.W.21 Pandurang Patil as well as P.W.05

approver Kiran Pujari admitted that approver Kiran Pujari was

using the mobile bearing no.9870557511 which is in the name of

Pandurang Patil. Thereby, prosecution succeeded to prove the

correspondence between the investigating officer and the

Telecommunication company as well as subscriber detail record and

call detail record of mobile no.9870557511.

167. It has come in the evidence of P.W.26 Deepak Devrukar

that he knows accused Suhas Roge and he is using the mobile

bearing no.9930159144. Call detail record of 9930159144 are also at

...143/



Exh.687 and the same has been proved by P.W.63 Nodal Officer

Vikas Phulkar of Max Touch/Vodafone. Thereby, it has come on the

record that accused Suhas Roge was using the said phone bearing no.

9930159144. The prosecution also relied on the original form of

subscriber detail record of the said phone i.e. 9930159144. It is in the

name of Narendra N. Roge. The residential address of Narendra Roge

and the residential address of the accused Suhas Roge are the same.

By examining P.W.26 Deepak Devrukar, it has brought on record that

though mobile no. 9930159144 was in the name of Narendra Roge,

accused Suhas Roge was using the same.

168. It has come in the evidence of P.W.12 Rakesh Sawant that

he knows accused Suhas Roge. Before about 4 years, they met in the

Ashram of Gagangiri Maharaj. Sometimes, he was working with him

as a driver. He did not support the prosecution, therefore, learned

Spl.P.P. cross examined him. During his cross examination, he

admitted that original prepaid application form (X59) bears his

photograph. But it did not bears his signature. Exh. 687 is in respect

of the mobile no. 9920960871 which is in possession of the accused

Suhas Roge. Portion marked A and B of his statement has been duly

proved by P.W.78 I.O. PI V.K. More. They are at Exh.771 and

...144/



Exh.772. Thereby, though he did not support the prosecution, it has

been duly proved by the investigating officer that mobile no.

9920960871 purchased in the name of Rakesh Sawant and the same

was used by accused Suhas Roge.

169. By examining P.W.63 Nodal Officer Vikas Phulkar,

prosecution proved copy of the letter issued by the Superintendent of

Police, Raigad (Exh.682), copy of the letter issued by Additional

Commissioner of Police regarding call detail record and subscriber

detail record (Exh.683 & Exh.684). He also filed the call detail record

of mobile no.9920960871 which is at Exh.685 and its subscriber

detail record (X59) and cell Id at Exh.686. He filed subscriber detail

record of mobile no.9930159144 which is in the name of Narendra

Roge (X60). He filed its call detail record (Exh.687). Mobile no.

9833110177 pertains to P.W.77 Anthony Raj Nannya Dravid and its

subscriber detail record is at X61 (Exh.757). Its call detail record is

at Exh.688. He also narrated the cell Id pertains to Borivali, Andheri

and Panvel.

170. It has further come in his evidence that mobile bearing

no. 9833418884 belongs to accused Jaya Chheda and the xerox copy

of the subscriber detail record (X62). He filed the call detail record of

...145/



mobile no. 9833418884 (Exh.689 colly.). In her statement u/s. 313

Cr.P.C., accused no.7 Jaya Chheda admitted her mobile number.

171. It has further come in the evidence of P.W.63 Nodal

Officer Vikas Phulkar that prepaid application form (X61) is in the

name of Anthony Raj Nannya Dravid and its call detail record are at

Exh.688. By examining P.W.77 Anthony Raj Nannya Dravid,

prosecution proved that the prepaid application form (X61) bears his

signature as well as his photograph and the xerox copy of passport

(Exh.757 and 758). Thereby, prosecution proved that at the relevant

time, witness Antony Raj Nannya Dravid was using mobile no.

9833110177. It has brought on record that on the day of the incident,

mobile no. 9833110177 was in possession of Anthony Raj Nannya

Dravid. He also filed the cell site address (Exh.706 colly.).

172. It has further come in the evidence of P.W.63 Nodal

Officer Vikas Phulkar that prepaid application form X63 is in the

name of Harish Ganiga @ Harish Mandvikar. He also filed call detail

record of mobile no. 9833507523 at Exh.690, which was used by the

accused no.3 Harish Mandvikar. Though P.W.63 was cross examined

in detail, his testimony has not been shattered in respect of the

...146/



subscriber detail record and call detail record of accused Harish

Mandvikar.

173. It has come in the evidence of P.W.60 Nodal Officer Sunil

Tiwari that Additional Commissioner of Police issued a letter on

28/7/2008 (Exh.643) and sought information in respect of mobile no.

9892222379, 9867736462 and 9867547490. Accordingly, he replied the

letter (Exh.644) and issued subscriber detail record of 9892222379 is

of Adv. Somet Shirsat, 9867736462 is in the name of Mohd. Kasif

and mobile no. 9867547490 is in the name of accused Kiran Amle. He

also furnished the original subscriber detail record/mobile form of

Adv. Somet Shirsat (Exh.645) and Airtel prepaid enrollment form of

accused Kiran Amle (Exh.646). He also filed call detail record of Adv.

Somet Shirsat (Exh.647) and call detail record of mobile no.

9867547490 of accused Kiran Amle dated 13/6/2008 (Exh.648). He

gave the location of cell Id of respective calls. He is unable to reply

whether the office copy of the letter the Additional Commissioner of

Police (X57) has been received by their office or not and the same

has been proved by P.W.70 G.B. Anerao which is at Exh.720. Despite

his detail cross examination, his testimony remained unshaken.

Nothing adverse has been brought on record against the evidence.

...147/



174. It has come in the evidence of P.W.61 Darshansingh

Randhawa that he issued a letter to Additional Commissioner of

Police in respect of subscriber detail record and call detail record of

mobile no. 9222003157 (Exh.652), its call detail record (Exh.653) and

its certificate (Exh.654) issued by Dattatray Sawant, Security

Executive. He also admitted the subscriber detail record (X58 and X

45 colly.). He also filed its cell Id (Exh.655) and thereby, he proved

the subscriber detail record and call detail record in respect of mobile

no. 9222003157.

175. P.W.60 S.S. Tiwari and P.W.64 Yogesh Rajapurkar have

proved the call detail record of mobile no. 9967735462 and its cell Id

(X64/Exh.694). He also stated about the location of cell Id by his

letter (Exh.695 colly.). Thereby, prosecution proved the call detail

record as well as cell Id and its location of mobile no. 9967735462

which was in the possession of accused no.1 Pravin Shetty.

176. P.W.60 Sunil Suhaschandra Tiwari, P.W.61 Darshansingh

Randhawa, P.W.63 Vikas Narayan Phulkar and Nodal Officer P.W.66

Chetan Srirang More have proved call detail record (Exh.700) of

mobile no. 9867547490 (which is in the name of accused Kiran Amle),

cell Id record (Exh.701), call detail record of mobile no.9967736462

...148/



(Exh.702) and its cell Id (Exh.703), cell site list (Exh.706) along with

its certificate (Exh.699) which is required u/s. 65 (B) of Indian

Evidence Act.

177. Thereby, by examining Nodal Officers P.W.55, P.W.57,

P.W.60. P.W.61, P.W.63, P.W.64 and P.W.66, prosecution has proved

the subscriber detail record and call detail record, location of cell Id

of the respective phones at the time of incident and thereby, proved

the communication between the accused through these mobiles from

time to time.

178. Upon perusal of call detail record of P.W.02 Adv. Somet

Shirsat (Exh.647), it is revealed that on 14/5/2008, day prior to the

date of hearing (earlier date) in Alibaug Court, P.W.02 Advocate

Somet Shirsat sent two SMS to mobile no. 9920155555 which is

belongs to accused Hitesh Bhagat. Whereas on 13/6/2008, at about

12:24 and 12:31:15 hrs., he received two calls from Suhas Roge by his

mobile bearing no. 9222003157. At the same time, call detail record

(Exh.653) pertaining to mobile no. 9222003157 shows that he made

two calls to mobile no. 9892222379 which belongs to Advocate Somet

Shirsat. Thereby, both these documents corroborate the testimony of

P.W.02 Advocate Somet Shirsat that on the day of the incident,

...149/



accused Suhas Roge made inquiry regarding the presence of the

accused in Alibaug Court.

179. It is admitted by P.W.62 approver Ajimuddin Shaikh that

mobile bearing no. 9324260303 was his mobile. The mobile of accused

Kiran Amle bearing no. 9867547490 was with Harish Mandvikar. On

12/6/2008, he received phone call on his mobile at 14:01:28 hrs.

Thereafter, he also received the calls at 12:23:27 hrs., 12:25:14 hrs.,

12:26:51 hrs. and 13:25:49 hrs.. Thereafter, approver Ajimuddin

Shaikh made the call on his phone at 16:42:28 hrs. and 17:05:58 hrs..

While comparing these calls with call detail record (Exh.648) of

mobile of accused Kiran Amle bearing no. 9867547490, it is revealed

that on 13/6/2008, at about 12:20:42 hrs., 1:19:41 hrs., 4:36:19 hrs.,

4:59:46 hrs., there were two outgoings and two incomings calls on his

mobile. On the same day, accused Harish Mandvikar was in

continuous contact with accused Pravin Shetty by making the calls at

8:33:06 a.m., 10:01:19 a.m., 10:39:53 a.m., 10:51:55 a.m., 10:45:33

a.m., 10:14:53 a.m., 10:00:10 a.m., 10:32:11 a.m., 10:33:45 a.m.,

10:53:54 a.m., 11:02:35 a.m., 12:56:23, 12:58:42, 11:20:58, 11:29:47,

11:43:15, 11:58:01, 12:08:04, 12:21:55, 12:35:57 p.m., 01:02:51 p.m.,

01:01:43 p.m., 01:04:14 p.m. and 01:12:32 p.m.. It is also revealed that

at the same time, he was also in contact with Anthony Raj Nanya

...150/



Dravid on his mobile no. 9833110177. This shows that accused Harish

Mandvikar and Kiran Amle were in constant touch with Ajimuddin

Shaikh, Pravin Shetty as well as with Anthony Raj Nanya Dravid.

The call detail record (Exh.690) of mobile no. 9833507523 of Harish

Mandvikar shows that he received phone call from accused Suhas

Roge on his mobile no. 9920960871, on 11/6/2008, at 22:04:48 hrs. as

well as on 13/6/2008 at 10:18:49 hrs. and 15:52:26 hrs.

180. Upon perusal of call detail record (Exh.688) of mobile no.

9833110177 of Anthony Raj Nanya Dravid, it is revealed that he

received as well as made call to Harish Mandvikar on his mobile as

well as the mobile of Kiran Amle (mobile phone no. 9867547490)

between 8:21:21 hrs., 9:27:22 hrs., 10:31:23 hrs., 10:56:33 hrs.,

10:48:53 hrs., 11:26:30 hrs., 11:38:30 hrs., 13:56:37 hrs., 14:50:58 hrs.,

14:54:57 hrs., 15:06:14 hrs., 15:10:41 hrs., 15:15:51 hrs., 15:58:19

hrs., 16:07:19 hrs., 16:53:60 hrs., 16:55:48 hrs., 18:57:51 hrs., 21:04:49

hrs., 21:10:47 hrs., 22:20:10 hrs.. This shows that on the day of the

incident, accused Harish Mandvikar was also in contact with

Anthony Raj Nanya Dravid.

...151/



181. On perusal of call detail record of accused Jaya Chheda of

mobile no. 9833418884, it appears that on 12/6/2008, she received

one incoming call at 15:24:26 hrs. and she called the Advocate Somet

Shirsat on his mobile at 19:34:37 hrs., It is revealed from the call

detail record (Exh.689) that she made contact with accused Suhas

Roge on his mobile no. 9930159144 at 1:59:03 hrs. and 3:00:22 hrs..

182. Upon perusal of call detail record of mobile no.9930159144

(Exh.687) (which was with Suhas Roge), it is revealed that on

15/5/2008, at 21:18:57 hrs., he received the phone from Kiran Pujari

as well as on 13/6/2008, he made phone call to approver Kiran Pujari

on his mobile no.9870557511, at 13:52:54 hrs. & 13:56:32 hrs,

17:23:29 hrs., 17:39:13 hrs. 17:46:06 hrs.& 20:06:04 hrs..While

comparing the same with call detail record (Exh.635) of mobile

no.9870557511,it is also found that Kiran Pujari made call on

15/5/2008,at 21:19:03 hrs.as well as on 13/06/2008,he received call

from Suhas Roge at 13:52:48 hrs.,13:56:26 hrs.,17:23:24 hrs., 17:39:08

hrs., 17:46:02 hrs. & 19:02:16 hrs.. Thereby, it is brought on record

that accused Suhas Roge contacted with Kiran Pujari on 15/5/2008 as

well as on 13/6/2008 from time to time.

...152/



183. The call detail record (Exh.694) pertaining to mobile no.

9967736462 of Pravin Shetty shows that on 13/6/2008, he was

receiving the calls from mobile no. 9867547490 (which belongs to

Kiran Amle), between 8:33:06 a.m., 10:01:19 a.m., 10:39:53 a.m.,

10:45:33 a.m., 10:51:55 a.m., 10:53:54 a.m., 11:25:16 a.m., 11:47:32

a.m., 12:12:21 p.m., 10:00:10 p.m., 10:31:30 p.m., 10:32:11 p.m.,

10:33:45 p.m., 11:02:35 p.m., 11:14:53 p.m., 12:02:18 p.m., 12:26:12

p.m.. Thereafter, at 1:00:40 p.m., 1:2:58 p.m., 1:6:00 p.m., 12:40:14

p.m., 01:07:08 p.m., 01:08:41 p.m., 01:16:49 p.m.. This shows that

since morning 8.33 a.m., accused Pravin Shetty was receiving

instructions from Harish Mandvikar from time to time at different

places.

184. It is revealed from call detail record (Exh.700) of mobile

bearing no. 9867547490 that on 13/6/2008, he was in contact with

9833110177 of Anthony Raj Nanya Dravid at 11:20:13 hrs., 01:50:21

p.m., 02:59:58 p.m., 04:46:51 p.m., 04:47:48 p.m., 04:49:32 p.m.,

11:32:14 a.m., 02:44:41 p.m. and 02:48:39 p.m.. At the same time, he

is also in contact with Ajimuddin Shaikh on his mobile no.

9324260303 at 12:20:42 p.m., 01:49:41 p.m., 04:3619 p.m. and

04:59:46 p.m... At the same time, he also contacted with mobile of

...153/



accused Pravin Shetty bearing no. 9967736462 between 12:56:23

p.m., 12:58:42 p.m., 11:29:47 a.m., 11:43:15 a.m., 11:58:01 a.m.,

11:08:04 p.m., 12:21:55 p.m, 12:35:57 p.m, 01:02:51 p.m., 01:01:51

p.m., 01:12:32 p.m. and thereafter, there was no contact between

mobile no. 9867547490 and 9967736462. This circumstance supports

the prosecution case that after the incident, there was no contact

between mobile of Pravin Shetty and mobile of Kiran Amle which

was in possession of Harish Mandvikar. Possibility of loss or falling

down his mobile immediately after the incident cannot be ruled out.

185. It is the case of the prosecution that immediately after the

incident, there was no contact between the mobile of Pravin Shetty

bearing no. 9967736462, after near about 1:12:30 p.m.. Thereafter,

accused Pravin Shetty ran away from the spot and went to the Hotel

Sai Kutir. Call detail record (Exh.700) shows that at about 5:5:14

p.m., he called on the landline no. 2143320558 P.C.O. of Hotel 'Sai

Kutir'. It has come in the evidence of P.W.24 Daulat Bade and P.W.25

Nitin that one call has been received to the person who covered his

face by bandage/handkerchief and they handed over the receiver to

accused no.1 Pravin Shetty. Thereby, the testimony of P.W.24 and

P.W.25 supported by call detail record (Exh.700). In such situation, it

...154/



is obvious on record that at the relevant time, i.e. 05.05 p.m., accused

Pravin Shetty reached Hotel Sai Kutir, Wadkhal Naka.

186. The CDR (Exh.700) also shows cell Id of different

incoming & outgoing calls. By examining P.W.66 Chetan More,

prosecution has filed the cell Id details on record and cell Id. address

(Exh. 701) as well as call detail record of mobile no. 9967736462 of

accused no.1 (Exh.702) which were issued by Bharti Airtel, Pune,

which bears incoming calls from 9867547490, between 12:58:41 to

1:12:31 p.m. in which it is mentioned that mobile no. 9967736462

whose location at 1:12:31 p.m. was gate no. 36/2A, A/P at Post Wave

Wadkhal, Taluka Pen, District Raigad. This clearly shows that at the

time of the incident, accused no.1 was driving the said vehicle within

the cell Id of Wave Wadkhal,Taluka Pen,District Raigad. The call

detail record (Exh.700 & Exh.702) and cell Id address (Exh.701 &

Exh.703) are issued along with certificate (Exh.699).

187. It is also revealed from the record that mobile no.

9867547490 belongs to accused Kiran Amle. He made call to Pravin

Shetty at 1:12:32. At the relevant time, their cell Id was 50783. As

...155/



per Exh.701, cell Id address of 50783 is open plot of Mr. Gopal

Mhatre, Survey no.36, Raigad. It is to be noted here that all these

cell Id are of different companies as they are having different

numbers. It has come in the evidence that on the day of the incident,

accused Harish Mandvikar took Swift car of bearing no.MH02AP

4563 of J.M. Nadar and Kiran Amle was driving the same. This

shows that by using the mobile of Kiran Amle, accused Harish

Mandvikar was giving instructions to accused Pravin Shetty. The cell

Id of mobile no. 9867547490 which is belongs to Kiran Amle between

11:20:58 a.m. to 1:12:32 p.m. shows that they were chasing the

vehicle Scorpio of Suresh Bhagat from Alibaug and reached near the

spot and all along were giving instructions to accused Pravin Shetty.

All these circumstances clearly established that at the relevant time,

accused Kiran Amle was accompanied with accused Harish

Mandvikar and he is also one of the conspirator. They were giving

instructions to accused no.1 Pravin Shetty. All the propositions made

by the prosecution which clearly in support of their case.

188. (A) Learned Advocate Shri Amit Munde for accused no.5

placed reliance on :

The copy of Criminal Appeal No.932 of 2012

The State of Maharashtra v/s. Paulson Joseph Patitra

...156/



This criminal appeal is arises on the basis of the order of

grant of bail by the Special Court under MCOC Act in which it has

been held that by using the said SIM could only by incidental and the

same was not seem to be reasonable. Such findings are passed while

considering the validity of the bail and not on the final decision of the

case. Therefore, the principle laid down in the above cited ruling is

not helpful to the accused at this stage, as the facts are different.

(B) Learned Advocate Shri S.R. Pasbola, as well as Ld.

Spl. P.P. Ms. Kalpana Chavan placed reliance on :

(i) State (NCT OF DELHI) V/s. Navjot Sandhu Alias Afsan

Guru, 2005 SCC (Cri) 1715, = 2005 AIR SCW 4148, in respect of

admissibility and accuracy of telephonic record as well as on the

point of conspiracy. In which it has been held that :

(I) When men enter into an agreement for an unlawful

end, they become adhoc agents for one another and have made a

partnership in crime. The very agreement, concert or league is the

ingredient of the offence. It is not necessary that all the conspirators

must know each and every detail of the conspiracy.

(II) Printouts taken from the computers/servers by

mechanical process and certified by a responsible official of the

serviceproviding company can be led in evidence through a witness

who can identify the signatures of the certifying officer or otherwise

...157/



speak of the facts based on his personal knowledge. Irrespective of the

compliance with the requirements of Section 65B, which is a

provision dealing with admissibility of electronic records, there is no

bar to adducing secondary evidence under the other provisions of the

Evidence Act.


cited ruling, in which it has been held that it is not necessary that all

the conspirators must know each and every detail of conspiracy, as

well as the evidentiary value of the call detail report and the

subscriber detail report. The principle laid down in the above cited

ruling is perfectly applicable to the prosecution than the defence.

189. I am also guided by the principle laid down in Deepti Anil

Devasthali & another v/s. State of Maharashtra, 2009 ALL MR (Cri)

3547, in which accused were arrested and convicted on the basis of

other evidence as well as the evidence of cell details of a particular cell

phone. By examining the officer of the Tele Communication company,

particulars of the incoming and outgoing calls has been proved and it

was held that they are preserved and printed electronically and

thereby, possibility of manipulation of human being is overruled.

The principle laid down in above cited ruling is squarely

applicable to the case in hand since during the trial prosecution has

...158/



examined the Nodal Officers of the respective tele communication

company as a witness and proved the subscriber detail record

maintained by the telecommunication company as well as call detail

reports and cell Id of the respective cell phones. Thereby, the

evidence filed on record by the prosecution has been duly proved.

190. Considering the evidence on record in respect of

subscriber detail record, it is obvious that accused no.1 Pravin Shetty

never disputed his subscriber application form (X64). Accused no.7

Jaya Chheda admitted in her statement of accused u/s. 313 of Code of

Criminal Procedure that she was having mobile no. 9833418884. It is

also admitted that at the time of arrest mobile no. 9920155555 was

seized from the possession of the accused no.8 Hitesh Bhagat.

Approver P.W.05 Kiran Pujari and P.W.62 Ajimuddin Shaikh

admitted mobiles in their possession. Bharati Airtel and TATA

Telecommunication issued the certificate u/s. 65(B) of Indian

Evidence Act. The call detail record clearly shows that on 15/5/2008,

12/6/2008 and 13/6/2008, accused were in contact with each other as

well as with witnesses before the incident and after the incident. The

use of mobile by the accused at specific cell Ids. i.e. locations also

shows that they were present on the spot i.e. at respective locations,

at different timings.

...159/



191. The credibility of the CDR is in my view unquestionable

since there is in built guaranty of the same being correct unless the

system itself is tampered which is not any one's case herein. The

entries in CDR are system generated. Plantation of questioned

entries therein is ordinarily not possible unless manipulation is done

at times and relevant entries from time to time. It is no one's case

that relevant entries are manipulated and planted earlier and

subsequent entries in CDR. Same difference is in isolated case in the

timings in CDR could be due to time lag which sometimes require for

the establishment of the record in the system. All these CDR and

SDR as well as cell Id record completed the chain of evidence to

corroborate the prosecution case. Thereby, prosecution has

established the conspiracy and the guilt of the accused.

SOME MORE CIRCUMSTANCES & CONSPIRACY

192. To show the conspiracy between the accused, prosecution

has examined P.W.13 Joseph John Madanlal, who runs a STD booth

since last 10 years. It has come in his evidence that he know accused

Harish Mandvikar since year 2005 as he had settled the dispute of

the cricket. He also gave him SRA project in which builder gave him

amount of Rs.3 lakhs as an advance, out of which he paid half

...160/



amount to Harish Mandvikar. When Harish Mandvikar was arrested

by Pune police, he accompanied his brother Ashish Mandvikar for his

release on bail. He also accompanied his brother Ashish Mandvikar

in the year 2000, when MPAD proceeding was initiated against

accused Harish Mandvikar. On 20/6/2008, he was called by Alibaug

police and recorded his statement. In the year 2008, he was also

called by PI Mahale of Unit I and recorded his statement. On

14/8/2008, he was forwarded to Metropolitan Magistrate, 23rd Court,

Esplanade where his statement was recorded. Though he admitted

his recording of statements at three times, he did not support the

prosecution. Thereupon, learned Spl.P.P. was permitted to cross

examine him. During his cross examination by learned Spl.P.P., he

denied the contents of portion marked “A” in his statement dated

12/7/2008 that in the month of January 2008, he received Rs.2 lakhs

from Bhau i.e. Suhas Roge and also denied the contents of portion

marked 'A' and 'B' in his statement dated 20/6/2008 that he made

phone call to Bhau (Suhas Roge) on account of demand of cash at the

instigation of Harish Mandvikar for his household expenses and

thereby, he paid Rs.2 lakhs as well as portion marked 'B' that

accused Suhas Roge paid Rs.2 lakhs as per his telephone when

accused Harish Mandvikar was arrested in MPDA case. Though he

did not support the prosecution in his further cross examination by

...161/



learned Spl.P.P., he admitted that after recording of his statement

before Magistrate he signed the same.

193. The prosecution has examined P.W.76 API R.D.

Waghchaure, who stated that the statement of P.W.13 Joseph John

Madanlal was recorded as per his say and portion marked A and B

(Exh.752 and Exh.753) are recorded as per his statement. The

prosecution also examined the investigating officer P.W.79 P.I. R.P.

Mahale. He admitted that while recording the statement of P.W.13

Joseph John Madanlal, he stated that in the month of January and

February 2008, he demanded Rs.2 lakhs each from Bhau i.e. accused

Suhas Roge and thereby, said portion marks are proved by P.W.79

investigating officer R.P. Mahale (Exh.790). Then learned

Metropolitan Magistrate A.D. Kshirsagar recorded the statement of

witness P.W.13 Joseph John Madanlal u/s. 164 of Cr.P.C.. Though it

was not necessary to examine Metropolitan Magistrate for recording

of statement u/s. 164 of Code of Criminal Procedure, prosecution has

examined him as P.W.72 A.D. Kshirsagar, who has stated that the

statement was recorded as per the version given by the witness

Joseph John Madanlal. By examining P.W.72 A.D. Kshirsagar, the

then Metropolitan Magistrate has proved statement u/s. 164 of

...162/



Cr.P.C. dated 14/8/2008 (Exh.737). P.W.13 Joseph Madanlal admitted

his signature on Exh.737. During cross examination of P.W.72

Metropolitan Magistrate A.D. Kshirsagar, nothing adverse has been

brought on record. Thereby, prosecution proved the testimony of

P.W.13 Joseph John Madanlal in respect of demand of amount from

time to time from accused Suhas Roge at the instance of accused

Harish Mandvikar and acceptance of amount of Rs.2 lakhs. Learned

Advocate for the accused raised the objection that procedure followed

by the Metropolitan Magistrate while recording his statement is also

improper. Therefore, his statement (Exh.737) cannot be read in

evidence. P.W.13 Joseph John Madanlal admitted that during the

inquiry, he was forwarded to the Court of Metropolitan Magistrate,

23rd Court, Mumbai. Learned Metropolitan Magistrate, who recorded

statement as per his say and thereby, he put his signature on

Exh.737. It is clear that accused Harish Mandvikar has accepted the

amount from Suhas Roge from time to time for the obvious reasons

best known to him.

194. It is the testimony of P.W.08 Joseph Nadar that he is

running a business by name 'Freeze Point' at Borivali. He knew

Harish Mandvikar because he was friend of his elder brother, who is

running STD booth next to his shop. He purchased Maruti Zen car

...163/



bearing No.MH04BS9412 before 4 ½ years. During the inquiry, he

admitted that on 13/7/2008 (sic 13/6/2008) and 15/5/2008, he handed

over his Maruti car to accused Harish Mandvikar. Thereby, police (PI

Shengle) seized the same by panchanama dated 13/7/2008 which

bears his signature. The said Maruti Zen car has been returned to

him on a bond of Supratnama.

195. During his cross examination by learned Advocate Shri

Vilas Naik for accused no.3, his testimony remained unshaken.

Thereby, it is clear that on 15/5/2008 as well as on 13/6/2008, accused

Harish Mandvikar used his Maruti Zen car bearing no.MH04BS

9412 and that too, while commission of the crime.

196. It has come in the evidence of P.W.09 Mahesh R. Yadav

that he is sales manager of “Om Cars” at Borivali (West). It is the

showroom of second hand carscumworkshop. Police made the

inquiry with him for the transaction of Swift car bearing no.MH02

AP4563 in the month of August 2008. It was sold to accused Harish

Mandvikar for Rs.3,45,000/ out of which he paid some amount in

cash and some amount by bearer cheque. At the time of handing over

the vehicle, signature of purchaser i.e. accused Harish Mandvikar

was obtained by him. The original R.C. book, copy of the insurance

...164/



and the transfer form (Article 1) are shown to him and he identified

the same. He identified the accused Harish Mandvikar before the

Court. Even after the purchase of car, the documents of the

ownership are standsstill in the name of previous owner.

197. It has further come in the evidence of P.W.09 Mahesh

Yadav that one Jatin C. Modi was the owner of the car bearing

no.MH02AP4563. R.C. book, insurance cover note and the transfer

form are filed on record as Article 1. The forms bears the signature of

registered owner. The delivery challan shows that motor vehicle

bearing no.MH04AP4563 was purchased by one Malai Parekh.

Another delivery challan is also in the name of Harish Ganiga,

resident of Borasa Pada, Poisar. It also bears the signature of Harish.

In his cross examination by Advocate Vilas Naik, he stated that

accused Harish Mandvikar is social worker, working in Kandivali.

Despite of cross examination by the Advocate for the accused,

testimony of P.W.09 M.R. Yadav remained unchallenge. Thus, it is

proved that accused Harish Mandvikar purchased second hand car of

one Modi through 'M/s. Om Cars'. Upon perusal of signature of

accused Harish Mandvikar with his prepaid application form (X63),

I found that his signature tallies with prepaid application form (X

...165/



63). Thereby, the testimony of P.W.09 Mahesh Yadav corroborates the

prosecution case.

198. It is to be noted that the said second hand car was found

in possession of accused Kiran Amle, at the time of his arrest. It be

also noted that prior and after the incident, accused Harish

Mandvikar paid the value of car to “M/s. Om Cars” in cash. Accused

Harish Mandvikar is merely electrician and does not have source of

income to have a big amount in excess of Rs.3,45,000/. Therefore, it

can be inferred that the amount which has been received while

hatching the conspiracy has been utilized for the purchase of said car.

All these circumstances clearly shows the participation of accused

Harish Mandvikar as well as accused Kiran Amle in the crime.

199. The witness P.W.18 Sunil Zilu Jangle has been examined

by the prosecution is the cable operator of Kandivali, Poisar. It has

come in his evidence that he is knowing accused Harish Mandvikar

since last 15 to 16 years as he is residing in his area i.e. Indira Nagar.

His mobile numbers are 9892958046 and 9892252346. He also knows

Anand Tailor and Kiran Amle because they are having tailoring shop

and cable business. Accused Pravin Shetty is residing in their area in

rented house. On 13/6/2008, when he was in the house, Anand Tailor

...166/



came to him, at about 4.30 to 5.00 p.m. and told that accused no.1

met with an accident. He told him to give message to Ganya @

Macchi on phone. Therefore, he tried to contact him. He admitted

that accused Harish Mandvikar and he himself, are accused in the

case of beating which is registered at Kandivali police station. He did

not support the prosecution, therefore, learned Spl.P.P. permitted to

cross examine him. During his cross examination by learned Spl.P.P.,

he denied the phone call to Manoj as there was message to accused

Pravin Shetty to make phone call to accused Harish Mandvikar. He

also denied that Manoj told him that accused Kiran Amle might have

accompanied Harish Mandvikar and therefore, they called him and

he made phone call on his Airtel handset and it was taken by Harish.

Though, he did not support the prosecution, his testimony in respect

of knowing the accused Harish Mandvikar, Anand Tailor, accused

Pravin Shetty and Kiran Amle is supporting the fact that they all are

residing within the same vicinity and they are knowing each other. It

has come in his evidence that on the day of the incident, Anand

Tailor came to his house and informed that accused Pravin Shetty

met with an accident and he tried to approach accused Harish

Mandvikar as well as Ganya (P.W.67) as well as on the day of the

incidence, Kiran Amle accompanied with accused Harish Mandvikar.

...167/



200. P.W.67 Ganesh Rane deposed that since his childhood he

is residing in Kandivali (West). He is having mobile bearing

no.9167759111. He is also knowing accused Harish Mandvikar,

Ashish Mandvikar, accused Pravin Shetty and Kiran Amle as they

are the members of DahiHandi Mandal. To break dahihandi, they

used to proceed by bus, bike and truck. But he did not know the

owner of the truck. He knows Raj Nanya, who is also the member of

DahiHandi Mandal. On 13/6/2008, he was in the house. He came to

know that the truck met with an accident. He did not support the

prosecution, therefore, learned Spl.P.P. sought permission to cross

examine him. During his cross examination, he denied that on the

day of the incident, when he went to the house of accused Harish

Mandvikar, he directed him to reach the accused Pravin Shetty on

the motorcycle of accused Kiran Amle to the house of accused

Ajimuddin Shaikh. It did not happen that at about 2.00 p.m., he

received phone call of Raj Nannya and requested him to wait in the

Hotel. He also refused when Raj Nanya came there. He was having

one bag and informed that bag contained Rs.10 lakhs and it is to be

given to the accused Ajimuddin Shaikh and it has been given to

accused Harish Mandvikar and the same has been refused by

Ajimuddin Shaikh on the ground that instead of one, seven people

were killed. He also denied the then meeting with accused Harish

...168/



Mandvikar at the house of Kiran Amle and he kept the amount at his

house. He further denied that accused Harish Mandvikar asked him

to go near Hotel McDonald and he accepted the bundles from one

Gotya at the instigation of accused Suhas Roge. He denied portion

marked A and B of his statement which are duly proved by

investigating officer P.W.79 P.I. Mahale. Though, he did not support

the prosecution case regarding the circumstances, the date of offence

i.e. 13/6/2008 as well as knowing of accused Kiran Amle, Harish

Mandvikar has come on record by the prosecution. It is the settled

principle of law that even if the witness did not support the

prosecution and supports some part of the contents, thereby, his

testimony should not be totally discarded. The portion of his

testimony found reliable is in respect of the circumstance of the

incident on the day of the incident as well as the message given by

the accused Pravin Shetty through Anand Tailor and accused Kiran

Amle was with the accused Harish Mandvikar.

201. P.W.77 Anthony Raj Nannya Dravid, resident of Poisar,

Kandivali, Mumbai, stated that he is residing at Borsa Pada since

last 20 years. He knows the accused Harish Mandvikar because

Harish Mandvikar is the member of DahiHandi Club and they used

to play cricket. In the year 2007, they went to Pune with accused

...169/



Harish Mandvikar, Manoj Gaikwad and Ganesh Rane to attend the

birthday of their friend and at the relevant time, quarrel took place

over due to dashing the vehicle. On that count, offence was registered

against them. He admitted that on 9/6/2008, accused Harish

Mandvikar met him. His mobile number is 9833110177. On that day,

no amount has been given by Harish Mandvikar for keeping. On

13/6/2008, he had not received a phone call over his mobile from

anybody. He never gone to the house of Ajimuddin Shaikh along with

Ganesh Rane. He also denied that on 14/7/2008, accused Harish

Mandvikar had come to his house. He also denied that he knows the

accused Pravin Shetty. He did not support the prosecution and

therefore, learned Spl. P.P. was permitted to cross examine him.

202. In his cross examination by learned Spl.P.P., P.W.77

Anthony Raj Nannya Dravid admitted that Sr.P.I. Mahale called him

in the office of DCBCID, in connection with this case and made

inquiry with him. But he did not know whether he recorded the

statement. He denied handing over of Rs.10 lakhs by Harish

Mandvikar @ Ganiga and the same was kept in the cupboard in his

house. He also denied that on 13/6/2008, at about 2.30 p.m., when he

was present at Satyanagar, Chikuwadi, Borivali (W), he received the

call of Kiran Amle over his mobile bearing No.9833110177 and at that

...170/



time, accused Harish Mandvikar instructed him to give the amount

of Rs.10 lakhs to Ajimuddin Shaikh. He also denied that he is

knowing Ajimuddin Shaikh because they were using his truck at the

time of DahiHandi for 2/3 occasions and he met him at the time of

Eid Festival of January 2007 as well as went to his house for

condolence on account of death of his sisterinlaw. He also denied

that on the day of the incident, at about 3.00 p.m., he and Ganesh

went to the house of Ajimuddin Shaikh to hand over the amount of

Rs.10 lakhs as instructed by the accused Harish Mandvikar, but he

was not present. Therefore, they waited and later on, they offered the

amount which was given by Harish Mandvikar.

203. During cross examination of P.W. 77 Anthony Raj Nannya

Dravid, seizure panchanama (Exh.493) dated 14/7/2008 was shown to

P.W.77 Anthony Raj Nanya Dravid to which he identified his

signature on the panchanama. The witness replied that police

obtained his signature on a blank paper. Exh.493 is a panchanama

u/s. 27 of the Evidence Act has been drawn by the investigating

officer at the instance of accused Harish Mandvikar in which it is

mentioned that during inquiry i.e. on 14/7/2008, accused made

voluntary statement and laid them at the house of witness Raj Nanya

and accordingly, amount was seized from his house. After drawing

...171/



the panchanama, police obtained his signature on the recovery

panchanama (Exh.493). Though P.W.77 refused his signature on

Exh.493, it cannot be said that it has been obtained by the

investigating officer on a blank paper. When his evidence has been

read with the evidence of investigating officer P.W.56 PI K.S.

Shengle, his contention cannot be discarded. Thereby, prosecution

proved the seizure panchanama of Rs. 8 lakhs from the house of

P.W.77 Anthony Raj Nannya Dravid and that too, at the instance of

accused Harish Mandivkar.

204. In his further cross examination by Spl.P.P., P.W.77

Anthony Raj Nannya Dravid denied that he had taken accused

Pravin Shetty to the hospital and he signed the medical paper

(Exh.471). When his prepaid application form (Exh.757) and xerox

copy of passport (Exh.758) was shown to him, he identified his

signatures thereon. A bare perusal of signature on prepaid

application form (Exh.757), xerox copy of the passport (Exh.758) with

signature on medical paper (Exh.471) and signature on recovery

panchanama (Exh.493 colly.), shows that they tally with each other.

Thereby, the denial by P.W.77 Anthony cannot be accepted. No

plausible explanation has been given by the witness under which

...172/



circumstances he gave signature on blank paper i.e. seizure

panchanama (Exh.493).

205. It is also seen that signature of accused Harish

Mandvikar on memorandum panchanama as well as recovery

panchanama of amount of Rs.8 lakhs (Exh.493 colly.) are similar to

his signature on Vakalatnama, plea and the statement of accused u/s.

313 of Cr.P.C.. In view of the above, it can be inferred that

investigating officer seized the amount of Rs.8 lakhs at the instance

of accused Harish Mandvikar and the same was seized from the

house of P.W. 77 Anthony Raj Nannya Dravid. During the

investigation, investigating officer PI Mahale recorded the statement

of P.W.77 Anthony, on 14/7/2008. He admitted the first 34

paragraphs of his statement but denied the rest of the paragraphs,

which are portions marked A to G. The prosecution proved the

portion marks through investigating officer PI Mahale, which are at

Exh.791 to 797. Though P.W.77 Anthony Raj did not support the

prosecution his testimony is not liable to be entirely thrown away. On

the contrary part thereof is found to be cogent and reliable.

...173/



206. It has come in the evidence of P.W.39 Arvind A. Modasia

(Exh.548) that since last 10 years, he is residing in Borsa Pada Road,

Kandivali and doing the business of mobile accessories. His father is

tailor since last 10 to 12 years and also running PCO. He knows

accused Harish Mandvikar as he used to come to the shop of his

father. In the month of January 2008, Poynad police came to his

house and took him to Poynad police station. They took him, one

Sunil, Balan and 23 others. The police threatened that they will

implicate him in false case. Police told that he has to give the

statement that some money was found with him and thereby, he

signed some blank papers in the police station. He admitted his

signature on the memorandum panchanama (Exh.760) and seizure

panchanama of Rs.23.50 lakhs (Exh.761). He did not support the

prosecution, therefore, Spl.P.P. cross examined him. During his cross

examination by learned Spl.P.P. he admitted his mobile bearing

no.9321331061, that he used to talk with accused Harish Mandvikar

but he did not remember the mobile number of Harish Mandvikar

i.e. 9867787230. He denied that on 15/6/2008, at about 7.00 to 7.30

p.m., when he was standing near Ganesh Medical Store, accused

Harish Mandvikar came to him and handed over one plastic bag

containing the amount of Rs.23.50 lakhs and he handed over the

same to his mother to keep it in the cupboard. He also denied that on

...174/



20/6/2008, Harish Mandvikar along with police came to his house

and thereby, he handed over the said bag containing Rs.23.50 lakhs

from the cupboard and those notes were of denomination of Rs.500/

and Rs.1000/. He also denied the drawing of panchanama dated

20/6/2008 as well as his statement to that effect.

207. By examining investigating officer P.W.78 P.I. V.K. More,

prosecution proved the portion marked 'A' of recovery of Rs.23.50

lakhs from the house of P.W.39 Arvind Modasia. Upon perusal of the

recovery panchanama (Exh.496N), P.W.39 Arvind admitted the

same. He denied the signature on the recovery panchanama u/s. 27 of

the Indian Evidence Act. It is the case of the prosecution that when

accused Harish Mandvikar was in the custody, he made voluntary

statement on 19/6/2008, at about 22:25 hrs. and disclosed that

amount of Rs.23.50 lakhs has been kept in the house of P.W.39

Arvind and he is ready to produce the said bag. Accordingly, he laid

them to the house of witness Arvind Modasia and he produced the

said amount at the instance of accused Harish Mandvikar and the

same was seized by the police. It is to be noted here that panchas

admitted their signatures on the panchanama (Exh.760 and Exh.761)

P.W.39 Arvind Modasia also admitted his signature on panchanama.

Thereby prosecution has proved this panchanama of recovery u/s. 27

...175/



of Evidence Act through investigating officer V.K. More. It also bears

the signature of accused Harish Mandvikar on memorandum

panchanama as well as on the recovery panchanama. His signature

is similar to the one on vakalatnama, statement of accused u/s. 313

and plea. The prosecution proved the seizure of amount of Rs.23.50

lakhs at the instance of accused Harish Mandvikar and that too,

from the house of P.W.39 Arvind Modasia. P.W.39 is the friend of

Harish Mandvikar and they are residing in the same locality. Call

detail record clearly shows that during that period, he made contact

with accused Harish on his mobile. Though, he did not support the

prosecution, his complete testimony cannot be thrown away. P.W.39

never gave any plausible explanation as to how he made the

signature on Exh.762 i.e. seizure panchanama of Rs.23.50 lakhs.

EVIDENCE AGAINST ACCUSED NO.8 HITESH BHAGAT.

208. To substantiate the charge against the accused no.8

Hitesh Bhagat, prosecution has examined P.W.05 approver Kiran

Pujari and his friends P.W.03 Ritesh Pratap Mehta, P.W.42 Rahul

Mehta and P.W.43 Adbulla Khan. It has come in the evidence of

P.W.05 approver Kiran Pujari that accused Hitesh Bhagat, Suhas

Roge and Jaya Chheda met him in Hotel 'Taj' and paid Rs.1 lakh. On

the next day, Suhas Roge called him at the house of accused Jaya

...176/



Chheda for meeting. At the time of meeting, they told him that

accused Hitesh Bhagat was attending dance bar and Suresh Bhagat

is also not looking the said mataka business. It has come in the

evidence that on that count, there were various meetings between

him and accused Jaya Chheda, Suhas Roge and Hitesh Bhagat. In

that respect, Suhas Roge also met him in his Airoli office. They paid

Rs.1 lakh as well as the gifts and cash from time to time to P.W.05

approver Kiran Pujari. They also conducted raid in Vashi office as

well as at the office at Lonawala of Suresh Bhagat. In his cross

examination, he admitted that he was also having meeting and talks

with accused Hitesh Bhagat. He further admitted that he received

Rs.1 lakh separately for providing the information regarding

Lonawala raid. In his cross examination by Advocate Taraq Sayyed,

he admitted that he did not feel that there was enmity between

Hitesh Bhagat and his father Suresh Bhagat. Though the said fact is

admitted by the accused, his testimony in respect of the meetings

with the accused Suhas Roge, Jaya Chheda and Hitesh Bhagat

remains unshattered.

209. By examining P.W.03 Ritesh Mehta, it is brought on

record that they are the friends since school days. He accompanied

accused Hitesh Bhagat for tour at Hongkong, Bangkok and Dubai for

...177/



3 to 4 times. All the expenses were borne by Hitesh Bhagat. It has

come on the record that three days before 11/6/2008, accused Hitesh

Bhagat informed him that air tickets for airbus for Bangkok was

booked. Accordingly, they went to Bangkok by flight at about 2.30

a.m. between 12/6/2008 and 13/6/2008 and reached Bangkok after

3½ hrs. He produced original passport (Exh.366), which bears

endorsement of their departure. Thereafter, they went to Pataya and

stayed in Hotel 'Pataya Shereton Resort'.

210. It has further come in his evidence that on the day of the

incident, at about 8 p.m., Hitesh Bhagat received the phone. He saw

that there was some serious talk. It was the call from his mother. She

informed him that his father met with an accident and died.

Immediately, he contacted with Nikita tours and left the hotel at 4

a.m. and reached Mumbai, on 14/6/2008, at 10.30 a.m.. It has further

come in his evidence that the room in Hotel 'Ramada Plaza' was

booked in his name. He resided there with accused Hitesh Bhagat.

He identified his Email address (Exh.367). In his cross examination,

he admitted that apart from Nikita Tours and Travels, he did not

make any contact with another travel agency. He further admitted

that his statement has been recorded by Metropolitan Magistrate.

His testimony remained unshaken.

...178/



211. The prosecution also examined travel agent P.W.04 Nitin

Chavan, who is running the business by name 'Nikita Travels'. It has

come in his evidence that in the year 2008, he used to book the

tickets through 'Ramkrishna Travels'. As per the telephonic message

of Ritesh Mehta and Rahul Mehta, he booked tickets on behalf of

Hitesh Bhagat. On 12/6/2008, midnight and 13/6/2008 as well as on

14/06/2008, he made arrangement of air tickets for Hitesh Bhagat

and Ritesh Mehta for Bangkok. It has further come in his evidence

that in addition to that accused Hitesh Bhagat booked Hotel 'ITC

Grand', Hyatt Regency, Hotel Renaissance and SuninSand, Goa. He

filed the copies of the bills (Exh.373 colly.) on record. During his cross

examination, nothing adverse has been brought on record.

212. It has come in the evidence of P.W.42 Rahul Mehta that he

is a friend of accused Hitesh Bhagat and therefore, he was familiar

with the family of Hitesh Bhagat. He was on foreign tours with

accused Hitesh Bhagat for number of times. He attended the funeral

of deceased Suresh Bhagat on 15/6/2008. Thereafter, he did not meet

him. Booking register of Hotel Hyatt Regency (Exh.558) is shown to

him and he admitted that it is the signature of his friend Hitesh

Bhagat and used to visit foreign countries with him. He also

...179/



identified his Email Id (Exh.565). By examining P.W.42 Rahul

Mehta, it has come on the record that room in Hotel Hyatt Regency

was booked in the name of Rahul Mehta whereas accused no.8

Hitesh Bhagat stayed there.

213. By examining P.W.43 Abdulla Amanulla Khan, it has

come on the record that he is knowing accused Hitesh Bhagat as well

as Manish Advilkar, because he is personal trainer of body building.

During the year 2008, three days after the death of Suresh Bhagat,

accused Hitesh Bhagat made phone call to him and called him at

Hotel ITC, Parel. On inquiry, he found that room was booked in the

name of Manish Adavilkar. After two days, when he went to Hotel

Hyatt Regency on the call of Hitesh Bhagat, he came to know that

room was booked in his name. Again after two days, he received call

from Hotel J.W. Marriott and came to know that room was booked in

his name without his permission. Later on, accused Hitesh Bhagat

called him at Hotel Ramada Plaza at Juhu and the room was booked

in the name of Ritesh Mehta. Thereafter, he met accused Hitesh

Bhagat in Hotel Rami Guest Line as well as Hotel Sahara Star at

Domestic Airport. Accused Hitesh Bhagat told him that he is

intending to engage lawyer for him and his mother from Delhi and

thereby, he made contact to Adv. Vikas Pawa through him. In the

...180/



meantime, he paid Rs.70 lakhs and Rs.30 lakhs through P.W.43 to

Adv. Pawa. His testimony remained unshaken.

214. It has come in the evidence of P.W.38 Rajendra Kamble

that since last 5½ years, he was serving as a Team Leader of Finance

Kuoni Travels Pvt. Ltd.. He identified the signature of Manager

Sanjay Sharma (Exh.546 & Exh.547), which are the bills in the name

of Manish Adavilkar through Nitin Chavan. They are the bills of ITC

Grand Hotel as well as Tour Club.

215. By examining P.W.40 Michael Remedious, prosecution

proved the bills of Hotel Ramada Plaza for the period from 18/6/2008

to 20/6/2008 in the name of Ritesh Mehta (Exh.551 colly.). P.W.41

Bhushan Rane, Assistant Manager of Hotel Hyatt Regency, admitted

the documents of guest registration card (Exh.558A) which bears the

signature of accused Hitesh Bhagat and the signature on Exh.558A

has been identified by P.W.42 Rahul Mehta that Hotel is booked in

his name. P.W.44 Satish Vaidya, ITC Grand, filed xerox copies of the

bills in the name of Manish Advilkar (Exh.573) which is booked

through Tour Club. By examining P.W.47 Tushar Mali, the hotel bills

of Hotel Grand Hyatt (Exh.582 colly.) are brought on record.

...181/



216. It has come in the evidence of P.W.58 Preetam Mahadik

that in the year 2008, he was working at SunnSand Hotel, Goa. On

13/7/2008, they handed over two mobiles, one SIM card and 34 rough

papers and itinerary of Kingfisher Airline regarding travel from

Mumbai to Goa. Same has been handed over to P.I. Nigade.

Accordingly, panchanama (Exh.637) has been drawn. He also

identified the documents as well as mobile and the SIM card (Article

16 to Article 19). In his cross examination, he admitted that he was

in the police station for about 2 hrs.. Despite of his detail cross

examination, his testimony remained unshaken.

217. It has come in the evidence of P.W.65 Ajay Pal that on

8/7/2008, at about 10 a.m., when he joined the duty, one of his

colleague Raghu instructed him to keep watch on a guest in Room

no.403. Though the room was booked in the name of Ritesh Shah,

accused Hitesh Bhagat was residing there. When police taken away

the guest, he checked the room and found two mobiles and one SIM

card and 1011 papers from the toilet cupboard and the same were

seized. He also identified the xerox copy of the register (Exh.697).

218. It has come in the evidence of P.W.14 P.I. D.B. Joshi that

after the receipt of the letter from investigating officer, he found that

...182/



accused Hitesh Bhagat had departed for Bangkok from Mumbai

Airport on 13/6/2008 and arrived on 14/6/2008. Accordingly, he filed

embarkation form (Exh.441) as well as departure card (Exh.442)

which bears the signature of accused Hitesh Bhagat.

219. The testimony of the prosecution witnesses that accused

no.8 Hitesh was residing with his father deceased Suresh Bhagat at

Worli. Even though, he was having visiting terms with his mother. It

is but natural that being a mother, he visited her house. But, it has

come on the record that he was not only visit his mother but attended

the meeting of accused Suhas Roge, Jaya Chheda and Kiran Pujari.

Being a member of conspiracy, as per the instructions of accused

Suhas Roge and Jaya Chheda, he chooses to remain absent before

Alibaug Court, on 15/5/2008 and 13/6/2008. It reveals from the

exemption application (Exh.358) that it was sought on the ground

that doctor had advised to take bed rest. Whereas as per the

evidence, on 13/6/2008, at about 2.30 a.m., he departed from India

and went to abroad. The testimony of P.W.04 N.P. Chavan clearly

transpires that as per the instruction of accused Hitesh Bhagat, he

booked air tickets three days prior to their departure. The evidence of

P.W.04 N.P. Chavan has been fortified by P.W.14 PI D.B. Joshi. It has

come in his evidence that at the time of departure, accused Hitesh

...183/



Bhagat filled up the embarkation form (Exh.442). The said fact as

well as the testimony of P.W.14 PI D.B. Joshi remained unchallenged.

This shows that being a part of the conspiracy, accused no.8 Hitesh

Bhagat left India and chooses to remain absent before court on false

ground. All these circumstances shows the state of mind of accused

no.8 regarding preplanning. His association in the meetings with

approver and other accused supports the prosecution case. He booked

the air tickets of Bangkok 3 days prior to departure. Thereafter, he

went to Bangkok immediately to create impression that he was

absent on the fateful day. This shows that he was having knowledge

about the conspiracy.

220. It has further come on the record that thereafter, accused

Hitesh Bhagat was residing in various Hotels and that too, in the

name of Ritesh Shah, Manish Adavilkar as well as in the name of

Abdulla Khan. The testimony of P.W.42 Rahul Mehta is found to be

cogent and reliable in support of the prosecution case. The evidence

filed on record is clear that after the death of Suresh Bhagat, accused

Hitesh Bhagat stayed in the various Hotels in the name of his friends

by hiding his identity. This would not have been the case had he not

conspired murder of Suresh Bhagat and was party to the execution of

the plan. It has brought on record by P.W.43 Abdulla Khan that he is

...184/



knowing about the present case and thereby, he tried to contact the

Advocate Pawa. Thereby, the evidence is found to be consistent with

the prosecution case. All these circumstances shows his association

in the meeting with the approver. This shows that he was member of

the conspiracy and thereby after the cremation/funeral of his father,

accused no.8 hidden his identity and stayed in different Hotels in

different names support the circumstances.

221. It has come in the evidence of P.W.48 API Mohd. Azam

Yusuf Patel that he recorded the statement of P.W.06 M.M. More as

per the direction of investigating officer PI Mahale. By examining

P.W.50 PSI S.T. Dhamankar, it has come on record that on 17/6/2008,

he received secrete information that accused Suhas Roge and Harish

Mandvikar are wondering in Somanath Chowk at Daman. Thereby,

he reached Daman with staff and arrested both of them by arranging

the trap. He took both of them u/s. 41(a) of Code of Criminal

Procedure and brought them to the office of Unit III. Thereby, he

prepared the arrest panchanama (Exh.592). At the time of arrest, he

seized the currency notes of Rs.3200/ and mobile (Article 13) from

the possession of Suhas Roge. On 20/6/2008, he arrested the accused

Kiran Amle from Dahisar by arranging the trap with Swift car

bearing no.MH02AP4563. Accordingly, he proved the arrest

...185/



panchanama (Exh.593). The testimony of P.W.14 Sr.P.I. D.B. Joshi,

P.W.48 API Mohd. Azam and P.W.50 P.S.I. S.T. Dhamankar found to

be corroborate to the prosecution case.

222. P.W.51 API V.D. Gaikwad drew the panchanama of seizure

of mobile of Harish Mandvikar from Santosh Gupta (Exh.604). By

examining P.W.53 PI S.V. Raut, it has come on the record that as per

the direction of investigating officer P.I. More, he carried out the

search of the house of Ajimuddin Shaikh and accused Pravin Shetty

and drawn the panchanama (Exh.614). By examining P.W.56 PI K.S.

Shengale, prosecution prove the memorandumcumseizure

panchanama of amount of Rs.4 lakhs (Exh.627) and seizure of

amount of Rs.8 lakhs (Exh.493).

223. By examining P.W.73 IO PSI B.Z. Pawar of police station

Panaji, it has brought on record that Manager Ajay Pal (P.W.65) has

brought two mobiles, one SIM card and 34 papers. Accordingly, he

gave information to Crime Branch, Mumbai. Accordingly, P.W.74 PI

Nigade of DCBCID, Unit I, visited Panaji police station and drew the

seizure panchanama (Exh.637). Thereby, prosecution proved the

seizure of two mobiles, one SIM card and some papers from Hotel

SunnSand, Goa.

...186/



224. Investigating officers P.W.71 G.C. Hiremath, P.W.78 V.K.

More, P.W.79 R.P. Mahale and P.W.80 ACP Ashok Duraphe proved

the contradictions and omissions in the statements of the witnesses

as well as proved the respective panchanamas.

225. Learned Senior Advocate Shri Adhik Shirodkar placed

reliance on : (i) Tahsildar Singh and another v/s. State of U.P., 1959

Cri.L.J. 1231, in which it has been held, “it is the settled principle of

law in respect of contradictions and omissions as well as its liability

while terminating the prosecution evidence”.

(ii) Ashish Batham v/s. State of M.P., (2002) 7 SCC 317, in

which the principle laid down in respect of the standard of proof i.e.

graver the charge greater should be standard of proof. (iii) Yudhishtir

v/s. The State of MP, 1971(3) SCC 436, in which it has been held,

“Corroboration for any evidence given by a witness may be found

necessary when a court is not inclined to reject the evidence of the

witness to be false, but when the evidence of a witness has been

rejected as unacceptable, there is no scope for attempting to find

corroboration by other independent evidence or other circumstances”.

(iii) Ramdas Nayak v/s. A.R. Antulay, 1993 (1) Bom. C.R. 185,

in which it has been held, “previous statement recorded by Court

...187/



having no jurisdiction to try the matter. Reliance for purpose of

contradicting witness. So far as section 145 is concerned, the fact the

statements were recorded by Court having no jurisdiction is

irrelevant. Despite lack of jurisdiction in the Court which recorded the

statement, it still remains as previous statement for purpose of section

145.”


cited rulings. They are the principles in respect of proving of

contradictions and omissions as well as standard of proof and

corroboration of evidence. All these principles have been perfectly

applicable to the case in hand.

EDITOR OF MIDDAY

226. P.W.35 Vinodkumar Menon, Editor of newspaper 'Mid

Day' deposed that two days prior to 11/12/2006, Deputy

Commissioner of Police, New Bombay, called the Press Conference of

Media about the arrest of Suresh Bhagat in drug case. When Suresh

Bhagat was passing through the room at police station he spoke with

Suresh Bhagat. On that basis he prepared the news and the same

was published in Gujarathi newspaper Article X53 and X53A. The

witness has confirmed the news item referring the statement then

...188/



given by deceased Suresh Bhagat to him about the impleading him

by his estrange wife Jaya Chheda for grabbing his Mataka business.

227. In his cross examination, he admitted that though his

report is in English, news was published in Gujarathi MidDay. He

admitted that he spoke with Suresh Bhagat when he was in police

custody at the time of press conference. It was suggested that Suresh

Bhagat was articulating his defence at that time. The witness has

stated that, because of shortage of time, he did not get the

opportunity to ask base of his defence. Despite his detail cross

examination, the facts remains on record that at the relevant time,

P.W.35 attended press conference in the office of the DCP, New

Bombay, when deceased Suresh Bhagat was arrested. Though it is

admitted that press report has no evidentiary value, even then fact

remains that since year 2006, deceased Suresh Bhagat felt that his

wife Jaya Bhagat was intending to grab mataka business by joining

the hands with her paramour.

228. P.W.30 Latish @ Satish Narayan Shetty deposed that in

the year 2007, when he was in the search of the job, he met

accused/approver Kiran Pujari as he was a social worker. Thereby, in

the month of October 2007, he joined the duty of a bodyguard of

...189/



accused Jaya Chheda, who was residing at Ghatkopar and owner of

Kalyan mataka business, on a daily wages of Rs.500/. He did not

support the prosecution. Therefore, Ld.Spl.P.P. was permitted to

cross examine him, in which he admitted that he visited Esplanade

Court at the instance of Kiran Pujari along with his driver Rahul

Kurtadkar and there was exchange of words between the police and

Kiran Pujari and thereafter, they were permitted to go. Though, he

did not support the prosecution, fact remains on record that P.W.20

Rahul Kurtadkar was the driver of the accused/approver Kiran

Pujari as well as he worked with accused no.7 Jaya Chheda as

bodyguard and she was doing mataka business as well as approver

Kiran Pujari was having visiting terms with accused Jaya Chheda.

229. At the same time, considering the evidence on record of

P.W.02 Adv. Somet Shirsat, it has come on the record that accused

Jaya Chheda as well as accused Suhas Roge were instructing him in

respect of absence of accused Hitesh Bhagat. It has come in the

evidence of P.W.15 Vinod Naik and P.W.16 Joseph Rodrigues that,

accused Jaya Chheda and Suhas Roge were meeting frequently. The

testimony of P.W.05 approver Kiran Pujari is also crystal clear

regarding his meetings with Jaya Chheda at the instance of Suhas

Roge in her house, transpires the conspiracy to grab the mataka

...190/



business of deceased Suresh Bhagat. All these circumstances and

following evidence linked together about the involvement of accused

Jaya Chheda by joining the hands with Suhas Roge, Kiran Pujari

and Hitesh Bhagat and other accused.

DYING DECLARATION :

230. Section 32 (1) of Indian Evidence Act reads thus :

“S.32. Statements, written or verbal, of relevant facts made

by a person who is dead, or who cannot be found, or who has become

incapable of giving evidence, or whose attendance cannot be procured

without an amount of delay or expense which under the circumstances

of the case, appears to the Court unreasonable, are themselves

relevant facts in the following cases :

(1) When the statement is made by a person as to the cause

of his death, or as to any of the circumstances of the transaction which

resulted in his death, in cases in which the cause of that person's

death comes into question.”

Section 32(1) is an exception to the general rule that

hearsay evidence is not admissible. This rule excluding hearsay

evidence is relaxed so far as the statement contained in Section 32

and Section 33 of Evidence Act. Under this Section, written or verbal

...191/



statements of relevant facts made by a person, who is dead are

relevant under the circumstance when it relates to cause of his

death. Words “dying declaration” means a statement written or

verbal of relevant facts made by a person who is dead. Evidence of

dying declaration is admissible not only against the person actually

causing death but also against other persons participating in causing

death. In the present case, Commissioner of Police received the

complaint/representation of deceased Suresh Bhagat on 13/3/2008

regarding the threats of murder at the hands of accused. Upon

perusal of Exh.747, it reveals that it was received by the office on the

same day. Accordingly, it was endorsed by concerned on 13/3/2008,

15/3/2008, 28/3/2008, 4/4/2008 and 26/5/2008. It has come on the

record that since there was no response from the Commissioner of

Police, deceased Suresh Bhagat filed Writ Petition before the Hon'ble

High Court on 2/5/2008.

231. P.W.75 Advocate S.T. Gaikwad deposed that as per the

telephonic message, he met the deceased Suresh Bhagat, who

informed him about the danger to his life and requested to prepare

the complaint for giving to the Commissioner of Police. Accordingly,

he prepared the draft on 23 occasions in which changes were made

by Suresh Bhagat. After finalisation of the representation, he as well

...192/



as Suresh Bhagat personally handed over the same to Mr. Gafoor,

Commissioner of Police. The complaints is at Exh.747. It has further

come in his evidence that by filing complaint, Suresh Bhagat

demanded the police protection for himself. However, for a quite long

period, there was no response from the Commissioner, therefore, he

decided to file Writ Petition before the Hon'ble High court.

Accordingly, as per the direction of Suresh Bhagat, he prepared and

filed Writ Petition bearing no.1013/2008 (Exh.748). During the cross

examination, certified copy of the order of Writ Petition (Exh.749) has

been filed on record by the defence. In his cross examination, it has

come on the record that he prepared the representation/complaint as

well as writ petition on the instructions of the deceased Suresh

Bhagat. Despite of his detail cross examination, his testimony

remains intact.

232. Learned Spl.P.P. placed reliance on (i) Suresh Raghunath

Kochare and another v/s. The State of Maharashtra and another,

1992 Cri.L.J. 2455, in which it has been held, “statement made by the

deceased regarding her harassment for demand of dowry at the hands

of husband is admissible u/s. 32(1) of Evidence Act as a dying

declaration”.

(ii) Kans Raj v/s. State of Punjab and others, 2000

...193/



Cri.L.J. 2993, in which it has been held, “Section 32 does not require

that the statement sought to be admitted in evidence should have been

made in imminent expectation of death”.

The principle laid down in above cited rulings is regarding

the dying declaration are well settled.

233. I am guided by the principle laid down in Rattan Singh

v/s. State of Himachal Pradesh, AIR 1997 SC 768, it has been held,

“a young housewife Kanta Devi was living with inlaws in village and

her husband was residing away from his family. Assailant was ex

army man developed some infatuation for Kanta Devi and he started

doting on her with libidinous designs, but she was not willing to

reciprocate his oblings. On these background, accused harassed her.

When she found him incorrigible she complained to the police about

his lewd conduct. Assailant gatecrashed into her courtyard during the

odd hours of the night and fired towards her. The statements made at

the time of previous complaint are treated as to the circumstance of

the transaction which resulted in death. Her statement before the

death that accused was standing with gun turning out the

circumstance of transaction which resulted in her death are held as

dying declaration.”

...194/



The principle laid down in above cited ruling is clears that

circumstance of the transaction which resulted in her death is

apparently wider amptitude than same circumstances which caused

death and the former statement falls within the purview of Section

32 of Evidence Act.

234. In the case in hand as immediately three months prior to

the date of the incident, deceased Suresh Bhagat lodged the

complaints/representations before the Commissioner of Police and

later Writ Petition before the Hon'ble High Court with specific

allegation that there is a danger to his life at the hands of Suhas

Roge, Jaya Chheda, Hitesh Bhagat and Kiran Pujari. The fact that

Hon'ble High Court disposed of the Writ Petition does not mean that

statement made by the deceased Suresh Bhagat therein that there is

a threats to his life at the hands of Jaya Chheda, Suhas Roge, Kiran

Pujari and Hitesh Bhagat have been dismissed on the merits by the

Hon'ble High Court. It cannot be said that Hon'ble High Court has

closed the matter even in respect of considering the issue whether

the statements constitutes dying declaration which questioned in my

view squarely falls for the consideration of this case.

...195/



235. The statements (Exh.747 and Exh.748) clearly constitutes

dying declaration therefrom cannot be held that the circumstances

stated in Exh.747 and Exh.748 led to the death of deceased Suresh

Bhagat. The dying declaration in the list supports the prosecution

evidence which is independently prove the guilt of the above named

accused.

236. Learned Senior Advocate Shri Adhik Shirodkar submitted

that after the death of the deceased Suresh Bhagat, his writ petition

is contested by his brother Vinod Bhagat through Advocate Ponda.

The Hon'ble High Court has been disposed of writ petition on the

ground that it is vague and not supported by the documentary

evidence as well as allegations are in the nature of prima facie

defence in those cases. Though, the Hon'ble High Court disposed of

the writ petition, it cannot be denied that at the relevant time,

deceased Suresh Bhagat received the threats at the hands of accused.

The circumstances on record clearly shows that accused no.4 Suhas

Roge, approver Kiran Pujari, accused no.7 Jaya Chheda and accused

no.8 Hitesh Bhagat hatched the conspiracy and resultantly, he died.

Thereby, the objection raised by the defence has no substance.

...196/



237. In the complaint/representation (Exh.747) as well as in the

writ petition (Exh.748), deceased Suresh Bhagat stated regarding the

threats of murder as well as implication of false case of possession of

drugs and arms with a motive to extort money from his estranged

wife Jaya Bhagat @ Jaya Talakshi Chheda, her paramour Suhas

Roge, Kiran Pujari and his son Hitesh Bhagat. This court is not

concerned in the implication of false case. The contents made in writ

petition and in the complaint are self explanatory. The complaint is a

written statement of deceased Suresh Bhagat about the threats. The

said written statement is relevant because on 13/6/2008, he died in

mishap. Thereby, said written statement of dead person which

relates to the cause of his death is nothing but the dying declaration.

Thereby, I am of the opinion that the provisions of Section 32(1) of

Evidence Act, are squarely applicable to the complaint (Exh.747).

Therefore, it will be just and proper to treat the same as a dying

declaration.

238. It is to be noted here that in the present case, there is no

direct evidence. In fact, the facts of the case are such that there could

be no direct evidence. Most of the evidence is based on the

circumstances. The prosecution relied on the testimony of approver,

statement of witnesses u/s. 164 of Cr.P.C., extra judicial confession

...197/



made by accused no.4 Suhas Roge, call detail record and recovery of

the mobiles from the accused. Prosecution proved the recovery of

amount of Rs.8 lakhs, Rs.23.50 lakhs at the instance of accused

Harish Mandvikar and recovery of Rs.4 lakhs at the instance of

approver Kiran Pujari u/s. 27 of Evidence Act. The said recovery has

been proved through investigating officer and the witnesses.

Prosecution also proved that the accused hatched the conspiracy for

the commission of murder of deceased Suresh Bhagat.

239. (A) Ld. Senior Advocate Shri Adhik Shirodkar placed

reliance on :

(i) S.P. Bhatnagar v/s. State of Maharashtra, (1979) 1 SCC

535, in which it has been held, “in cases where the evidence is of a

circumstantial nature, the circumstances from which the conclusion of

guilt is to be drawn should in the first instance be fully established,

and all the facts so established should be consistent only with the

hypothesis of the guilt of the accused. Again, the circumstances

should be of a conclusive nature and tendency and they should be

such as to exclude every hypothesis but the one proposed to be proved.

There must be a chain of evidence so far complete as not to leave any

reasonable ground for a conclusion consistent with the innocence of

the accused and it must be such as to show that within all human

...198/



probability the act must have been done by the accused.”

(ii) Balu Sonba v/s. State of Maharashtra, (2002) 7 SCC 543,

in which it has been held, “when court placed reliance on the

circumstantial evidence, it is necessary that chain of evidence is to be

completed”.

(iii) Ram Singh v/s. Sonia and others, (2007) 3 SCC 1,

in which it has been held, “each and every incriminating

circumstance must be clearly established by reliable and clinching

evidence and the circumstances so proved must form a chain of events

from which the only irresistible conclusion about the guilt of the

accused can be safely drawn and no other hypothesis against the guilt

is possible.It has also been indicated that when the important link

goes, the chain of circumstances gets snapped and the other

circumstances cannot in any manner, establish the guilt of the

accused beyond all reasonable doubts. It has been indicated by this

Court that there is a long mental distance between “may be true” and

“must be true” and the same divides conjectures from sure

conclusions”.


cardinal principles of law and the same are duly fulfilled to the

present case in hand.

...199/



240. (B) Ld. Advocate Shri Vilas Naik placed reliance on :

(i) Jaharlal Das V/s. State of Orissa, (1991) 3 S.C.C. 27 =

AIR 1991 SC 1388, in which it has been held, the circumstantial

evidence in order to sustain the conviction must satisfy three

conditions:

(I) the circumstances from which an inference of guilt is

sought to be drawn, must be cogently and firmly established;

(II) those circumstances should be of a definite tendency

unerringly pointing towards the guilt of the accused;

(III) the circumstances, taken cumulatively, should form a

chain so complete that there is no escape from the conclusion

that within all human probability the crime was committed

by the accused and none else, and it should also be

incapable of explanation on any other hypothesis than that

of the guilt of the accused.

(ii) State (Delhi Admn.) v/s.V.C.Shukla & Anr., AIR 1980 S.C.

1382, in which it has been held, “in order to prove a criminal

conspiracy which is punishable under Section 120B, there must be

direct or circumstantial evidence to show that there was an agreement

between two or more persons to commit an offence.”

(iii) N.J. Suraj V/s. State represented by Inspector of police,

(2004) 11 S.C.C. 346, in which it has been held, while holding the

...200/



motive on the basis of circumstantial evidence alone cannot form the

basis for conviction.

(iv) P.K. Narayanan V/s. State of Kerala, 1995 S.C.C. (Cri)

215, in which it has been held, motive and preparation by themselves

do not constitute conspiracy. Criminal conspiracy can be proved by

direct or circumstantial evidence. Circumstances must establish that

the offence was committed in pursuance of an agreement between

parties to the alleged conspiracy. Such circumstances must be

incapable of any other explanation. Mere suspicion and surmises or

inferences unsupported by cogent evidence not sufficient.

(v) Hanuman S/o. Tulshiram Jadhav & Anr. V/s. State of

Maharashtra, 2011 ALL MR (Cri) 930, in which it has been held,

neither the chain was established to the circumstances formulated

against the accused nor circumstance were established accused are

entitle to get the benefit.

I have gone through the above cited ruling, in which the

principles of circumstantial evidence as well as conspiracy has been

elaborately discussed. I have already discussed the requisite test are

fulfilled in this case.

...201/



241. Ld. Advocate Shri A.R. Rasal placed reliance on :

(i) Varkey Joseph V/s. State of Kerala, AIR 1993 S.C. 1892,

in which it has been held, “suspicion is not substitute for proof. There

is a long distance between 'may be true' and 'must be true' and the

prosecution has to travel all the way to prove its case beyond all

reasonable doubt.”

(ii) Pedala Veera Reddy V/s. State of Andra Pradesh & Ors.,

AIR 1990 S.C. 79, in which it has been held, “strong suspicion

against accused cannot take place legal proof of accused”

(iii) State of U.P. V/s. Sukhbasi and Others, AIR 1985 S.C.

1224, in which it has been held, to substantiate a charge under

S.120B of the Code, there must be a criminal conspiracy at least

between two or more persons.


principles laid down in the cited supra are the settled position of Law.

There is, however, no missing link in the circumstantial evidence in

this case.

242. Ld.Advocate Shri Amit Munde placed reliance on :

Vithal Tukaram More & Ors. V/s.State of Maharashtra

2002 S.C.C.(Cri) 1555, in which it has been held, “to prove the guilt of

the accused on the basis of circumstantial evidence prosecution has to

...202/



prove the essential ingredients i.e. (a) the circumstances from which

the conclusion is drawn should be fully proved; (b) the circumstances

should be conclusive in nature; (c) all the facts so established should

be consistent only with the hypothesis of guilt and inconsistent with

innocence; (d) the circumstances should to a moral certainty, exclude

the possibility of guilt of any person other than the accused. But, the

circumstantial evidence in the present case falls short of the required

standard of proof.”

243. Learned Advocate Shri Jethmalani placed reliance on:

A.Deivendran V/s. State of T.N., AIR 1998 S.C. 2821, in

which it has been held, the evidence of the approver implicating

several accused persons in commission of the offence could not only

be corroborated generally but also qua each accused. But that does

not mean that there should be independent corroboration of every

particular circumstance from an independent source. All that is

required is that there must be some additional evidence rendering it

probable that the story of the accomplice is true. Corroboration also

could be both by direct of circumstantial evidence.

I have gone through the above cited ruling. The principles

laid down in the above cited rulings are helpful to the prosecution

though the authority is cited by the defence.

...203/



244. Learned Advocate Shri S.R. Pasbola placed his reliance

on:

(i) Pakala Narayana Swami V/s. Emperor, AIR 1939

P.C. 27, in which it has been held, “circumstances must have some

proximate relation to the actual occurrence and must be of the

transaction which resulted in the death of the declarant, i.e.

resgestae”.

(ii) Sharad Birdhichand Sarda V/s. State of

Maharashtra, 1984 S.C.C.(Cri) 487, in this case it is held, “when the

case is based on circumstances evidence and where two possibilities

come forward i.e. one of commission of crime and the other of

innocence are reasonable possible, accused entitled to benefit of

doubt.”

(iii) Vinay D. Nagar V/s. State of Rajasthan, (2008)2

SCC (Cri) 666, in which it has been held, “circumstances of

transaction which resulted in his death, prosecution has to prove

strong motive. Statement of deceased made u/s.161 of Cr.P.C. during

investigation in abduction case not admissible u/s.32(1) to prove the

motive of accused to eliminate the deceased.”

(iv) Sampath Kumar V/s. Inspector of police,

Krishnagiri, (2012)4 S.C.C.(Cri) 124, in which it has been held,

“when the case is based on the circumstantial evidence motive alone

...204/



can hardly be a ground for conviction.”

(v) John Pandian V/s. State Rep. by Inspector of police, T.

Nadu, 2011(1) Crimes 1 (S.C.), in which it has been held, “all

conspirators need not take active part in the commission of each and

every conspiratorial act but, mere knowledge, even discussion, of the

plan would not constitute conspiracy. Each one of the circumstances

should be proved beyond reasonable doubt and such circumstances

proved must form a chain of events from which the only irresistible

conclusion is about the guilt of the accused which can be safely drawn

and no other hypothesis of the guilt is possible.”

The principles laid down in the above cited rulings are the

cardinal principles of circumstantial evidence. They are not helpful to

the defence but in fact supports the prosecution.

245. SPP Ms. Kalpana Chavan placed reliance on :

(i) Sidhartha Vashisht @ Manu Sharma V/s. State

(NCT of Delhi), 2010ALL MR(Cri)1627 (S.C.), in which it is held,

"the phone call details showed that the accused were in touch with

each other which resulted in destruction of evidence and harboring.

Thus the finding of the trial Court that in the absence of what they

stated to each other is of no help to the prosecution is an incorrect

appreciation of evidence on record. A close association is a very

...205/



important piece of evidence in the case of circumstantial evidence. The

evidence of phone calls is a very relevant and admissible piece of

evidence.”

(ii) Mohd. Khalid V/s. State of W.B., (2002) 7 SCC 334,

in which it is held, "no overt act need be proved to establish criminal

conspiracy. Proof of conspiracy can be by direct evidence, though the

same is rarely available or by circumstantial evidence. Circumstances

proved before, during and after the occurrence should be considered to

decide complicity of the accused. Confession of coaccused, even

without corroboration, can be taken into consideration.”

On perusal of both these citations, it is held that call

detail record is a very important piece of evidence of close association

of accused and thereby, it is admissible piece of evidence. At the same

time, circumstances proved, during and after the occurrence, can be

taken into consideration. Thereby, the principles are perfectly

applicable to the case in hand.

246. During the arguments, Ld. Spl.P.P. and Advocates for the

defence placed reliance on certain other aspects of the law. I am of

the opinion that it is necessary to mention citations as under :

(A) Ld. Spl.P.p. Ms. Kalpana Chavan placed reliance on :

Sucha Singh & anr. V/s. State of Punjab, 2003ALL

...206/



MR(Cri)2346 (S.C.), in which it is held, "Maxim "falsus in uno falsus

in omnibus". Falsity of particular material witness or material

particular would not ruin it from the beginning to end. It is the duty

of Court to separate grain from chaff. Proof beyond reasonable doubt

is a guideline, not a fetish. Vague hunches cannot take place of

judicial evaluation. "A Judge does not preside over a criminal trial,

merely to see that no innocent man is punished. A Judge also

presides to see that guilty man, does not escape. Both are public

duties.”

(B) Ld. Sr. Advocate Shri Shirodkar placed reliance on:

M. Abbas v/s. State of Kerala, (2001) 10 SCC 103, in which

it has been held, “Between 'may be true' and 'must be true' there is a

long distance to travel. If the prosecution has failed to travel that

distance through any unimpeachable evidence. The case of the

prosecution has not been established beyond reasonable doubt. In

such situation, accused is not required to prove his defence beyond

reasonable doubt, but only by preponderance of probabilities.”

(C) Ld. Advocate Shri Vilas Naik placed reliance on :

(i) Balakrushna Swain V/s. State of Orissa, 1971 SCC

(Cri.) 313, in which it has been held, “much reliance cannot be placed

on the evidence of a witness when for no justifiable reason he was not

examined by the investigating officer for a number of days

...207/



particularly when the witness is found to be telling falsehood on

material aspects of the case and tries to conform to the evidence of

other witnesses.”

(ii) Mulak Raj & Others V/s. State of Haryana, AIR

1996 S.C. 2868, in which it has been held, “when no satisfactory

evidence to show whether the accused had taken part in killing

strong suspicion cannot take place of proof and thereby accused are

entitle for benefit of doubt.”

(iii) Ramesh Baburao Devaskar & Ors. V/s. State of

Maharashtra, 2008 ALL MR (Cri) 293 (SC),

in which it has been held, “while appreciating the evidence on the

point of motive proof of motive by itself may not be a ground to hold

the accused guilty.”

(iv) Rambilas and Ors. V/s. State of M.P., 1997 CRI.L.J.

4649, in which it has been held, “deceased being a notorious person

had many enemies in and around village. Possibility of somebody

else other than accused being the assailants cannot be ruled out.”

(v) Dr. Sunil Kumar Sambhudayal Gupta & Ors. V/s.

State of Maharashtra, 2011 ALL MR (Cri) 288 (S.C.), in which it has

been held, while appreciating the evidence, the court has to take into

consideration whether the contradictions/omissions had been of such

magnitude that they may materially affect the trial. Minor

...208/



contradictions, inconsistencies, embellishments or improvements on

trivial matters without effecting the core of the prosecution case

should not be made a ground to reject the evidence in its entirety.

(vi) Balaka Singh & Ors. V/s. The State of Punjab, 1975

CRI. L.J. 1734, in which it has been held, “while appreciating the

evidence Court must make attempt to separate grain from chaff”.

All the cited supra rulings are on the principles of Law.

They are applicable to the prosecution case though cited by the

defence.

(D) Ld.Counsel Shri S.R. Pasbola placed reliance on :

(i) Bhairon Singh V/s. State of M.P., 2009 Cri. L.J.

3738, in this case it is held, “declaration as it must be that there is no

an iota of evidence which can be admitted in Law to be used against

the accused. Thereby it becomes irrelevant by itself and cannot be

admitted in Law.”

(ii) Life Insurance Corpn. of India & Anr. V/s. Rampal

Singh Bisen,(2010)4 S.C.C.(Cri) 491, in this case it is held, regarding

the admission and denial of the documents in the CPC as well as in

the departmental inquiry.

(iii) J. Yashoda V/s. K. Shobha Rani, (2007)3 SCC(Cri)9,

in this case the admissibility of primary evidence and secondary

evidence has been discussed in the civil appeal.

...209/



I have gone through the above cited rulings, in which the

principles laid down are in respect of the admissibility of documents

etc. is not helpful to the accused as the facts of the case in hand are

altogether different.

247. The cardinal principles of conspiracy has been

exhaustively laid down by Hon'ble Supreme Court in :

State through S.P., CBI/SIT v/s. Nalini & Ors.,

JT 1999 (4) SC 106,

The principles governing the law of conspiracy may be summarized though, as the same implies, a summary cannot be exhaustive of the principles:i. Under Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offences of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be

...210/



committed.ii. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.iii. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.iv. Conspirators may, for example, be enrolled in a chain – A enrolling B, B enrolling C, and so on ; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella spoke enrollment, where a single person at the centre doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.

...211/



v. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.vi. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.vii. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself

...212/



but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that “this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders”.viii. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the gravaman of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.ix. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by

...213/



any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility

extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a coconspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.x. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect is guilty though he intends to take no active part in the crime.

All these principles has been duly proved by the

prosecution in the case in hand and thereby, the law laid down in the

cited supra Nalini's case is perfectly applicable to the case in hand.

...214/



248. At the end, it is necessary to summarise the conclusions

based on the evidence on the record. It is admitted on record that

deceased Suresh Bhagat was running the mataka Business. His

father was also running the mataka business. He was having huge

property in Bombay and Gujarat i.e. flats, shops, Villas, landed

property as well as chemical and gems business. Defence also

admitted the dispute on account of the deceased's huge property. It is

undenied that accused no.7 Jaya Chheda was his divorcee. It has

been established that accused Suhas Roge called P.W.05 approver

Kiran Pujari at the house of Jaya Chheda to grab the mataka

business of Suresh Bhagat. In that meeting, Jaya Chheda, Suhas

Roge and Hitesh Bhagat were present. They also planned to kill him

while returning from Alibaug Court and requested P.W.05 approver

Kiran Pujari to help them politically as well as to the police

authorities, to which he agreed. Accordingly, they made various

traps and hatched the conspiracy. Deceased Suresh Bhagat lodged

various complaints against his wife accused no.7 Jaya Chheda,

Hitesh Bhagat, accused no.4 Suhas Roge and approver Kiran Pujari

about the threats to his life as well as impleaded him in narcotic and

arms cases.

...215/



249. It is also found that accused Suhas Roge introduced

accused Harish Mandvikar to Jaya Chheda. As a result of which

accused Suhas Roge paid cash to the accused Harish Mandvikar from

time to time. Accordingly, Harish Mandvikar also contacted with

P.W.62 Ajimuddin Shaikh to hand over the truck for Rs.10 lakhs.

When P.W.77 Anthony and P.W.67 Ganesh went to the house of

approver Ajimuddin Shaikh to hand over cash of Rs.10 lakhs, he

refused to accept the same saying that instead of one, seven persons

were killed. This material piece of evidence clearly transpires their

meeting of mind for the commission of murder of one person.

250. The further conclusion is that accused Harish Mandvikar

deputed accused no.1 Pravin Shetty to execute the plan on Alibaug

Pen Road. Accordingly, on previous date of incident i.e. on 15/5/2008,

they took the truck but invain. Therefore, on 13/6/2008, they again

obtained the truck from approver Ajimuddin Shaikh. It has come in

the CDR that accused were in constant touch with each other as well

as with the witnesses P.W.77 Anthony, P.W.02 Adv. Somet Shirsat as

well as with approvers P.W.62 Ajimuddin and P.W.05 Kiran Pujari.

The CDR as well as cell site list and cell Id report clearly shows that

they were in contacts with each other at different times and on

...216/



different locations. It has also brought on record that accused Harish

Mandvikar was instructed accused no.1 Pravin Shetty on his mobile

continuously from 8.33 a.m. to 1:12:32 p.m.. Thereafter, there were

no contacts between them till accused no.1 Pravin Shetty reached the

Hotel Sai Kutir, at about 2.30 p.m. and he made the contact to

accused Harish Mandvikar. The said information had been received

by Poynad police station, at about 1.45 p.m.. The contacts between

accused on the basis of CDR clearly transpires that accused Harish

Mandvikar was in touch with accused no.1 Pravin Shetty as well as

with Suhas Roge. The CDR of mobile no. 9867547490 (Exh.709) and

cell Id (Exh.701) of accused no.5 Kiran Amle used by accused no.3

Harish Mandvikar while travelling in Maruti Zen car bearing

no.MH04BS9412 chasing Scorpio of deceased Suresh Bhagat has

been brought on record. The user of the mobile was proceeding from

Alibaug towards Pen and while travelling, user reached at or about

1:12 p.m. in the close vicinity of the place of occurrence. The CDR of

mobile no.9967736462 (Exh.702) of accused no.1 Pravin Shetty, who

was driving the truck from opposite direction also fixes his location

from Pen side and at the time of the incident, at the place of

occurrence. Except for the conspiracy, this would not have been so.

Accused Suhas Roge was in contact with accused Kiran Pujari and

thereby, he called him near Rani Baug. By exchanging the seats of

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the vehicles, Kiran Pujari received the information from Suhas Roge

and assured as agreed.

251. It has also been proved that immediately on the same day,

in the evening, accused Suhas Roge went to the house of Jaya

Chheda with P.W.15 Vinod Naik. By paying an amount of Rs.1000/,

accused Suhas Roge handed over a bag of cash to P.W.15 Vinod Naik

with a direction to reach near 'McDonald', Borivali and handed over

the same to one Gotya. By confirming Gotya, P.W.15 Vinod Naik

handed over the cash which was received from the house of accused

Jaya Chheda. Later on, at about 10.30 a.m., P.W.15 Vinod Naik,

P.W.16 his driver Joseph Rodrigues met at the house of witness

Sanjay Shirke. While watching T.V., accused Suhas Roge passed

remarks about the death of Suresh Bhagat that “Amhi amchya

dushmanala khalas kele”. The said remark is nothing but the extra

judicial confession of accused Suhas Roge before the prosecution

witnesses. It has also brought on record that on the next day, accused

Suhas Roge called P.W.16 Joseph Rodrigues and proceeded towards

Bhayender. After taking tea, bag of currency notes containing of

Rs.1000/ denomination was exchanged from TATA Sumo of Suhas

Roge and handed over to the accused Harish Mandvikar. Thereafter,

they proceeded to Ghodbandar to Mulund. Where Kiran Pujari was

...218/



waiting at Mulund Checknaka with his vehicle. All these

circumstances clearly shows that accused hatched conspiracy to kill

deceased Suresh Bhagat and successfully executed the plan. Thus, it

is obvious that the murder of the deceased Suresh Bhagat was

committed in premeditated and calculated manner.

252. In view of the above, I am of the opinion that it is not mere

accident. It is a clear cut case of conspiracy, which is mainly based on

the circumstances. Thereby, prosecution successfully proved that the

death of the deceased Suresh Bhagat and six others is not accidental

but homicidal. Hence, I answer point no.1 accordingly.

253. In view of the discussion made above, prosecution

successfully proved the hatching of conspiracy as well as the

circumstances which are brought on record. All the circumstances

clearly shows that prior to 13/6/2008, accused no.4 Suhas Roge, Jaya

Chheda, Hitesh Bhagat and approver Kiran Pujari hatched the

conspiracy with accused Harish Mandvikar, Pravin Shetty as well as

Kiran Amle and approver Ajimuddin Shaikh. As a result of

conspiracy, it was successfully executed on the day of the incident, at

about 1.15 p.m., within the vicinity of Village Shahbaj on Alibaug

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Pen Road and thereby, accused no.1 Pravin Shetty gave dash to

Scorpio jeep of Suresh Bhagat, in which Suresh Bhagat and six

others were killed. Although, the conspiracy was only to kill Suresh

Bhagat, the intention to kill him and others is obvious from all the

circumstances of the case. The accused persons must be attributed

intention even to kill other passengers in Scorpio in the nature of

conspiracy hatched by them to kill Suresh Bhagat, when he was

travelling in Scorpio with others. Thereby, prosecution proved that

accused in furtherance of their common intention committed murder

of deceased Suresh Bhagat and six others with their common

intention. Hence, I answer point nos.2, 3 and 4 are in the

affirmative.

254. After having held all the accused guilty of the offences

punishable u/s. 120B, 302 r/w. 34 of IPC, it is necessary to hear the

accused on the point of quantum of sentence. The matter stands

adjourned for the same on Monday i.e. on 29/7/2013.

Date : 26/7/2013 (S.G.Shete) Addl. Sessions Judge

Gr.Bombay.

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255. AS TO POINT NO.5 :

I have heard the accused on the point of quantum of

sentence. They submitted that they are innocent and prayed for

leniency. Accused no.1 Pravin Shetty submitted that his father and

mother are aged about 59 years and 50 years respectively. They are

dependent on him. Hence, he prayed for leniency. Accused no.3

Harish Mandvikar submitted that his father and mother are aged

about 65 years and 56 years respectively and they are dependent on

him. Accused no.4 Suhas Roge submitted that his wife and minor

daughter are dependent on him. His parents are no more. Accused

no.5 Kiran Amle also prayed for leniency and submitted that his

sister and two kids of his late brother are dependent on him. Accused

no.7 Jaya Chheda submitted that her mother is aged about 80 years.

Her family is consisting of her son accused no.8 Hitesh Bhagat as

well as his mother. Considering her age, she prayed for leniency.

Accused no.8 Hitesh Bhagat submitted that on the day of the

incident, he was abroad. His age is only 33 years. Except his mother

accused no.7 Jaya Chheda, nobody is behind him and thereby, he

prayed for lesser punishment.

256. Learned Spl.P.P. Ms. Kalpana Chavan for the prosecution

submitted that accused hatched the conspiracy and committed the

...221/



cold blooded murder. To kill Suresh Bhagat, they chose specific

vehicle viz. truck and place of occurrence on PenAlibaug Road. The

Scorpio was rammed by the truck trying to give colour of accident

and thereby six innocents including Advocate and body guard were

killed. The offence is heinous. Six innocents are brutally murdered by

the accused by hatching conspiracy. Thereby, it is the rarest of rare

case and hence, prayed to sentence them till death.

257. In reply, Ld.Sr. Advocate Shri Adhik Shirodkar for

accused no.4 submitted that the case is purely based on the

circumstantial evidence as well as the testimony of the approvers.

Murder is always heinous crime and brutal. It is not the criteria for

rarest of rare case and therefore, the death penalty is not proper and

justified. Most of the accused are between 30's. Theory of reformation

and rehabilitation is applicable to the case in hand as there is no

previous antecedents. While awarding the death sentence, it is

necessary to record special reasons. Hence, he prayed to grant

minimum sentence.

258. Ld. Counsel Shri S.R. Pasbola for accused no.7 reiterated

the same arguments and submitted that number of death has no

criteria for granting death sentence. Heinous crime is also no criteria

...222/



for the principle of rarest of rare case. At the relevant time, accused

were not knowing that seven persons are traveling. There was no

conspiracy to kill those seven persons. The accused are not menace to

the society. Hence, he prayed to grant lesser punishment.

259. Ld. Advocate Shri A.R. Rasal for accused no.1 also adopts

the arguments. He submitted that accused no.1 was not having

knowledge of occupancy of seven persons in the Scorpio. He was not

having intention whatsoever of the act and thereby, benefit of doubt

be given to the accused. It is not the rarest of rare case and therefore,

prayed to grant the lesser punishment.

260. Ld. Advocate Shri Taraq Sayyed for accused no.8

submitted that merely because exemption application was filed in

Alibaug Court with a wrong reasons cannot be a circumstance to

show his indulgence in the crime. Hence, he prayed for leniency.

261. Ld. Advocate Vilas Naik for accused no.3 submitted that

parents of the accused are old aged and dependent on him. He is

below 30 years. He was married on 18/5/2008. Only 15 to 23 days he

enjoyed the married life. It is not the rarest of rare case and

...223/



therefore, capital punishment cannot be imposed. It is a fit case to

apply the principle of doctrine of rehabilitation. It is the first offence

of the accused. There is no criminal antecedents. Hence, he prayed

for leniency.

262. Ld. Advocate Shri Amit Munde for accused no.5 advanced

arguments that accused is a young boy i.e. 32 years and unmarried.

His sister and two kids of late brother are dependent on him. There

is no criminal antecedents and it is his first offence. It is not the case

of rarest of rare and therefore, he prayed to grant lesser punishment.

263. (A) Ld. Sr. Advocate Shri Adhik Shirodkar placed reliance

on : Oma alias Omprakash and another s/. State of Tamil Nadu

(2013) 3 SCC 440

(B) Ld. Counsel Shri S.R. Pasbola placed reliance on :

Santosh Kumar Satishbhushan Bariyar v/s. State of Maharashtra

(2009) 2 SCC (Cri) 1150

(C) Ld. Advocate Shri Rasal placed reliance on :

Shankar Kisanrao Khade v/s, State of Maharashtra

2013 Cri. L.J. 2595

...224/




principles laid down in the above cited rulings are extracted from

Bachan Singh's case – 1980 (2) SCC 684, relevant portion of which is

quoted for ready reference:

“The rarest of the rare case” comes when a convict would

be a menace and threat to the harmonious and peaceful coexistence of

the society. The crime may be heinous or brutal but may not be in a

category of “the rarest of the rare case”. There must be no reason to

believe that the accused cannot be reformed or rehabilitated and that

he is likely to continue criminal acts of violence as would constitute a

continuing threat to the society. The accused may be a menace to the

society and would continue to be so, threatening its peaceful and

harmonious coexistence. The manner in which the crime is

committed must be such that it may result in intense and extreme

indignation of the community and shock the collective conscience of

the society. The death sentence may be warranted where the victims

are innocent children and helpless women. Thus, in case the crime is

committed in a most cruel and inhuman manner which is an

extremely brutal, grotespque, diabolical, revolting and dastardly

manner, where his act affects the entire moral fibre of the society e.g.

crime committed for power or political ambition or indulging in

organised criminal activities, death sentence should be awarded”.

...225/



264. Having regard to the facts and circumstances of the case

and submissions of the accused as well as submissions of the learned

Counsels for the parties, it is obvious that most of the accused are

between the age of 30 to 35 years. They are young. Their parents are

dependent on them. Nothing is filed on record in respect of previous

antecedents of the accused. The mandate of Section 354(3) and 235(2)

of Cr.P.C. requires mentioning of special reasons for a death penalty

and the court must pay due regard both to the crime and criminal. In

Bachan Singh's case lays down that if the crime results in intense

and extreme indignation of the community and shock the collective

conscience of the society as well as the crime is committed in a most

cruel and inhuman manner which is an extremely brutal is not a

ground for awarding the death sentence. Even when, it has come on

the record that the crime committed by the accused is of hatching

conspiracy and killed the Suresh Bhagat and six other innocent,

applying the principle laid down in the above said ruling to the case

in hand, this case cannot be said to be rare case. In the

circumstances, I am of the opinion that punishment of life

imprisonment will meet the ends of justice.

265. Before parting the order, it is necessary to mention that

nobody claimed the muddemal i.e. amount of Rs.23.50 lakhs and Rs.8

...226/



lakhs. Father of the approver Kiran Pujari had claimed the amount

of Rs.4 lakhs vide application (Exh.189), but it was rejected. At the

same time, cash of Rs.11.39 lakhs and wrist watch of accused Hitesh

Bhagat were returned to his maternal aunt Asha Bhatt on a bond of

'supratnama', as the said property is not concerned with the crime.

Motor vehicles i.e. Maruti Zen car no.MH04BS9412, SkodaMH01

PA6093, Car MH43N4060, Car MH43V4060, Car MH01KA

4545, car MH01AC123, are returned on bond of Supratnama to the

respective owners. Therefore, it is necessary to pass the order in

respect of disposal of property to that effect.

Resultantly, I proceed to pass the following order :

ORDER

1. Accused no.1 Pravin Dayanand Shetty, Age 35 years, Occ. Driver, resident of Kandivali (W), Mumbai, Original R/o. Anandnagar, Kariyakal, Taluka Karkla, District Udipi, Karnataka, accused no.3 Harish Rama Mandvikar, Age 33 years, Occ. Electrician, R/o. Bharti Chawl, Room No.42, 1/9, Indira Nagar, Borsapada, Kandivali (W), Mumbai 400 067, accused no.4 Suhas Mahadev Roge, Age 42 years, Occ. Hotel Business, R/o.3/B, Dadyseth Wadi, Siri Road, Band Stand, Girgaon Chowpati, Malbar Hill, Mumbai 400 006, accused no.5 Kiran Baban Amle, Age 36 years, Occ. Cable Business, R/o. Room no.1, Bhaskar Kolekar Chawl, Navagaon, Laxman Mhatre Road, Dahisar (W), Mumbai 400 068, accused no.7 Jaya Talakshi Chheda, Age 49 years, R/o. 126, Room No.3518, Pantnagar, Vishal Housing Society, Ghatkopar (E),

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Mumbai and accused no. 8 Hitesh Suresh Bhagat, Age 33 years, Occ. Share Trading, R/o. 212, Jayant Villa, 4th floor, Opp. Worli Market, Worli, Mumbai 400 018, are hereby convicted under Section 235 of the Criminal Procedure Code for the offence punishable Under Section 302 r/w. 34 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs.20,000/ (Rupees twenty thousand only) each, in default to suffer Simple Imprisonment for one year.

2. Accused no.1 Pravin Dayanand Shetty, accused no.3 Harish Rama Mandvikar, accused no.4 Suhas Mahadev Roge, accused no.5 Kiran Baban Amle, accused no.7 Jaya Talkshi Chheda, and accused no. 8 Hitesh Suresh Bhagat, are hereby also convicted under Section 235 of the Criminal Procedure Code for the offence punishable Under Section 120B of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs.20,000/ (Rupees twenty thousand only) each, in default to suffer Simple Imprisonment for one year.

3. Both the sentence shall run concurrently.

4. The set off be given u/s. 428 of the Criminal Procedure Code.

5. Bail bonds of approver Kiran Pujari and Ajimuddin Shaikh stand cancelled, after the period of appeal is over.

...228/



6. Muddemal property i.e. mobiles Article nos.4,5,6,7,8,9,10,11,13 colly., 17 18, 23,24,30,31 and unmarked mobiles i.e N1100, N73, N6110, Samsung, wrist watch of 'Citizen' and 'Rolex' make, be sold as per law and its sale proceed be credited to the State. SIM cards in the mobiles, if any, be destroyed, after the period of appeal is over.

7. Muddemal property i.e. pistol, six live cartridges and chopper (dagger) be sent to the Commissioner of Police, Mumbai, for disposal according to law, after the period of appeal is over.

8. Mummdemal Article no. 25 Nike Bag and various articles viz. wrappers, being worthless be destroyed, after the period of appeal is over.

9. Muddemal Article i.e. amount of Rs.23.50 lakhs and Rs.8 lakhs as well as Rs.4 lakhs which is in F.D.R., be credited to the State, after the period of appeal is over.

10. Documents i.e. Article 1 colly., Article 1/1 xerox copies of air ticket, Article 16 pages 155 to 175, Article 26 colly., Article 28 toll receipt, Article 33 cutting of MidDay, Article 38 letter issued by MidDay, X53 xerox copy of Mid Day newspaper, application (Exh.850) be kept with “C” file.

11. Muddemal Article i.e. cash Rs.11.39 lakhs and wrist watch of Hitesh Bhagat, Maruti Zen car no.MH04BS9412, SkodaMH01PA6093, Car MH43N4060, Car MH43V4060, Car MH01KA4545, car MH01AC123, are returned on “Supratnama”, be retained. “Supratanama” stand cancelled, after the appeal period is over.

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12. Muddemal articles i.e. truck no.MH04CA4445, Scorpio jeep no.MH01AC2475 and car bearing no.MH04AP4563 be sold as per law and its sale proceeds be credited to the State, after the appeal period is over.

13. Copy of the judgment be immediately given to the accused free of cost.

Date : 31/07/2013 (S.G.Shete) Addl. Sessions Judge

Gr.Bombay.

.../

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