suresh bhagat murder case judgement

8/22/2019 Suresh Bhagat Murder Case Judgement

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Received on : 03/10/2008

Registered on : 24/04/2009

Decided on : 31/07/2013

Duration : 04-Y, 09-M, 28-D

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 Commissioner

of Police, Detection Crime Branch-

Crime Investigation Department,

Unit I, Mumbai, C.R.No.116/2008

of DCB-CID

in C.R.No.25/2008 of Poynad Police Station)

Versus

1. Pravin Dayanand Shetty ...Accused

Age 35 years, Occ. Driver,

R/o.Borsapada, Indiranagar,Kandivali (W), Mumbai.

And

Original resident of Anandnagar,

Kariyakal, Taluka Karkla,

District Udipi, Karnataka

...2/-


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...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 ...Accused

Age 33 years, Occ. Electrician

R/o. Bharti Chawl, Room No.42,

1/9, Indira Nagar, Borsapada,

Kandivali (W), Mumbai 400 067.

4.Suhas Mahadev Roge ...Accused

Age 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 ...Accused

Age 36 years, Occ. Cable Business

R/o. Room no.1, Bhaskar Kolekar

Chawl, Navagaon, Laxman Mhatre

Road, Dahisar (W), Mumbai 400 068.

...3/-


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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 ...Accused

Age 49 years, Occ. Nil

R/o. 126, Room No.3518, PantnagarVishal Housing Society, Ghatkopar

(E), Mumbai.

8. Hitesh Suresh Bhagat ...Accused

Age 33 years, Occ. Share Trading,

R/o. 212, Jayant Villa, 4th floor,

Opp. Worli Market, Worli,Mumbai 400 018.

CHARGE :- U/s.120-B, 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.3

Shri Adhik Shirodkar, Senior Advocate with Shri Archit Sakhalkar,

Advocate for accused no.4.

Shri Amit Munde, Advocate for accused no.5

Shri Sudeep Pasbola, Counsel with Shri Ram Pawde, Advocate for

the accused no.7.

Shri Taraq Sayyed, Advocate for accused no.8

...4/-


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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.120-B, 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 Bhagat-maiden name Jaya Talakshi

Chheda-is 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.MH-04-CA-4445. Accused no.1 Pravin Shetty, who

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

01-AC-2475, 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,

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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 co-accused 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 co-operate with political

influence as well as influence with police for valuable consideration.

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

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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.MH-01-AC-2475 for attending the court. While returning by

Alibaug-Pen Road, at about 1.15 p.m., accused no.1 rammed Scorpio

jeep by the truck bearing no.MH-04-CA-4445 with an intention to

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

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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 Alibaug-Pen Road, within the vicinity of

village Shahbaj. Immediately he informed the incident to the Station

In-charge, 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 head-on-

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.

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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. 304-A, 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/-


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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, 120-B of IPC. Accordingly, he arrested

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

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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.

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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

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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 DCB-CID. 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 'Sun-N-Sand' 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/-


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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 re-arrested the

accused Pravin Shetty, Ajjimuddin Shaikh, Harish Mandvikar, Suhas

Roge and Kiran Amle and obtained their police custody. During

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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 'Mid-Day'. 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 charge-sheet 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

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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 (X-63).

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

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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.264-A &

Exh.264-B 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. 120-B 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, Alibaug-Pen Road,

In the

affirmative

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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.MH-04-CA-4445

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.

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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.01-Exh.327),

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

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

(P.W.79-Exh.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.48-Exh.583), P.S.I.

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

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

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

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

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

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

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

23. The prosecution relied on the testimony of approvers

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

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

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

Shirsat (P.W.02-Exh.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.75-Exh.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.72-Exh.736),

who recorded the statement of witness Joseph John Mandanlal and

other witnesses. Dr. Smt. Shashikala K. Desai (P.W.22-Exh.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.23-Exh.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.17-Exh.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

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Habu Kamble (P.W.45-Exh.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.33-Exh.531), Dr. Shripad M. Kondekar

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

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

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

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

Anand Vishram Patil (P.W.07-Exh.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.25-Exh.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.35-Exh.535),City Editor of

newspaper 'Mid-Day', photographers Mahesh Kisan Musale (P.W.49-

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

...21/-


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28. Prosecution examined the panchas on various

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

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

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

and Dhananjay C. Mhatre (P.W.52-Exh.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.10-Exh.428),

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

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

Pandurang Patil (P.W.21-Exh.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.55-Exh.623), SeniorManager, B.P.L. Mobile, Sudhakar Devram Musale (P.W.57-

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

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

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

...22/-


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

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

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

Chetan Srirang More (P.W.66-Exh.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.16-Exh.449) and Sanjay

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

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

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

S. Kurtadkar (P.W.20-Exh.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.08-Exh.422), Sales Manager of Om Cars Mahesh R.

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

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

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

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

...23/-


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

prosecution examined his friends. They are Ritesh Pratap Mehta

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

Abdulla Amanulla Khan (P.W.43-Exh.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.04-Exh.372), Team Leader of Kuoni Travels

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

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

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

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

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

representative of Hotel 'Sun-N-Sand', Goa, Preetam C. Mahadik

(P.W.58-Exh.636) and Trainee Manager of Hotel 'Sun-N-Sand', Goa,

Ajay Bensingh Pal (P.W.65-Exh.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.330-A),

representation/ complaint of deceased Suresh Bhagat, dated

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

...24/-


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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 'Mid-Day' (Exh.536) as well as xerox copy of the Gujarathi

'Mid-Day' (X-53-A), 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.657-A), 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/-


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

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

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

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

Suresh Bhagat (Exh.543 & Exh.543-A) 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/-


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

accused Kiran Amle and seizure of car bearing no.MH-02-AP-4563,

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.MH-04-BS-9412, dtd.13/7/2008, at the instance of accused Harish

Mandivkar (Exh.628 & Exh.628-A), 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/-


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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.MH-02-AP-4563

(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/-


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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

(X-51 & X-49 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 (X-44 -Exh.429 colly.), xerox

...30/-


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copy of the license of Mohd. Qasif (X-45) and his original license

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

Qasif (X-58).

45. The prosecution further relies on subscriber detail reports

of accused Pravin Shetty of mobile No.9967735462 (X-64) and its call

detail report (Exh.694-X-64), 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 (X-59), 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 (X-61-Exh.757), xerox copy of his

...31/-


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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 (X-62), 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 (X-63), 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 (X-57-Exh.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/-


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(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 DCB-CID (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, SB-II (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.558-A), E-mail Id of witness Rahul

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

...33/-


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

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

extract of Sun-n-Sand 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 MH-02-AP-4563

(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/-


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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 charge-sheet (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/-


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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

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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

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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 head-on-collusion, seven persons were

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

his nose and forehead. Due to head-on 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

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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

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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

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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 charge-sheet with

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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.

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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.

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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 (X-64) is of accused no.1 Pravin Shetty,

subscriber detail record (X-63) is of Harish Mandvikar, subscriber

detail record (Exh.58 & X-59) 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 (X-51) is alleged to be of Kiran

Pujari, subscriber detail record (X-62) 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 65-B (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

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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. X-64 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.

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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

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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.876-A).

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

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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 part-heard 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

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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.

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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

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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

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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. MH-04-CA-4445 and Scorpio no.MH-04-AC-2475 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. 304-A, 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

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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.330-A) 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.

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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

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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

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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 ofsuspicion 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

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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 set-up 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.MH-04-CA-4445, never

applied the brakes and there were no skid marks or tyre marks on

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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.MH-04-CA-4445 and Scorpio no.MH-01-AC-

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. MH-04-CA-4445 and noticed that brake

connection was broken, steering connection was broken, gear box was

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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 s

suresh bhagat murder case judgement

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