Vijay Ramchandra Thopate vs D.C.B. Cid on 19 October, 2010

Bombay High CourtVijay Ramchandra Thopate vs D.C.B. Cid on 19 October, 2010Bench: B.H. Marlapalle, Anoop V.Mohta 1 cri-appeal-864-00

pdp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 864 OF 2000

1.Vijay Ramchandra Thopate )

2.Ganpat Bhikaji Bamane )

both permanent residents of )

Mumbai, presently in judicial )

custody at Yerawaqda Central )

Prison, Pune. )..APPELLANTS

(Org.Accd.Nos.2 and 6)

Versus

The State of Maharashtra through )

Vijay Ramchandra Thopate vs D.C.B. Cid on 19 October, 2010

Indian Kanoon - http://indiankanoon.org/doc/991728/ 1

D.C.B. CID, Mumbai. )..RESPONDENT

WITH

CRIMINAL APPEAL NO.132 OF 2001

The State of Maharashtra )..APPELLANT

Versus

1.Raju Umakant Baje, aged about )

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29 years, R/o.Room No.17, )

Maheshwari Mandir Vasahat, Sai )

Baba Marg, Parel, Mumbai-12. )

2.Sanjay Baban Devkar, )

Aged about 29 years, )

R/o. Plot No.556, Sai Nath Wadi, )

Thane Belapur Road, Airoli, )



New Mumbai, District Thane and ig )

Bagubai Chawl, R.No.1, Old Kurla )

Road, Kurla, Mumbai-400 070. )..RESPONDENTS

(Org.Accd.Nos.5 and 8)

Mr. Sayaji D. Nangre, Mr. Ranjeet M. Pawar and Mr. Sameer Nangre for the Appellants in Appeal No.864 of 2000. Mr. P.S. Hingorani, APP for State in Appeal No.864 of 2000 and for Appellant in Appeal No.132 of 2001.

Mr. Sudeep Pasbola with Mr. Rahul Arote, for respondent No.2 in Appeal No.132 of 2001.

CORAM : B.H. MARLAPALLE &

ANOOP V. MOHTA, JJ.

RESERVED ON: 9TH AUGUST, 2010

PONOUNCED ON: 19TH OCTOBER, 2010

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JUDGMENT (PER SHRI B.H. MARLAPALLE, J.):

1. Both these Appeals arise from the order of conviction and sentence passed on 25th July, 2000 inSessions Case No.526 of 1997.



By the said order all the accused came to be acquittd under Section 120B of the I.P.C., and accusedNo.1-Arun Ananda Londhe, accused No.2-Vijay Ramchandra Thopate and accused No.6-GanpatBhikaji Bamane have been convicted for the offences punishable under Sections 143 and 147 of igI.P.C., accused Nos.2 and 6 have been convicted for the offences punishable under Sections 144, 148and 302 of I.P.C., accused No.6 has been convicted for the offence punishable under Section 307 ofI.P.C., accused No.1 has been convicted for the offence punishable under Section 302 read withSection 34 of I.P.C.

Accused Nos. 1 and 2 are convicted for the offence punishable under Section 307 read with Section34 of I.P.C., accused Nos. 2 and 6 are convicted for the offence punishable under Section 27 of theArms Act, accused No.1 is acquitted for the offence punishable under Section 27 of the Arms Act,accused Nos. 2 and 6 are also convicted for the offence punishable under Section 135 read withSection 37(1)(a) of the Bombay Police Act, accused Nos. 3, 5, 7,8 and 9 are acquitted for the offencepunishable under section 302 read with Section 34 of I.P.C. They are cri-appeal-864-00 furtheracquitted for the offence punishable under Section 307 read with Section 34 of the I.P.C., accusedNos. 1, 2, 5 and 8 are acquitted for the offence punishable under Section 25(1-B) (a) read withSection 3 of the Arms Act and the accused No.1 is acquitted for the offences punishable underSection 144, 148 and 302 of the I.P.C. and under Section 135 read with Section 37(1)(a) of theBombay Police Act.

Criminal Appeal No. 864 of 2000 has been filed by accused no.2 and accused no. 6 and both of themare in jail as at present. Whereas, Criminal Appeal No. 132 of 2001 has been filed by the State ofMaharashtra against the acquittal of accused nos.5 and 8.

During the pendency of these appeals, accused no. 5 - Raju Umakant Baje died and hence CriminalAppeal No.132 of 2001 has abated against him.

2. Dr.Dattatraya Narayan Samant, popularly known as Dr.Datta Samant and a well known TradeUnion Leader was assassinated on 16th January, 1997 near his house, while he was traveling in hisTata Sumo Jeep and the complainant Shri Bhimrao Sonkamble, P.W.15 was the driver of the saidjeep. As per the prosecution case Dr. Samant had a bungalow by name Sundar Narayan Niwas atPadmavati Road, I.I.T. Powai, Mumbai-76. At about 11.10 cri-appeal-864-00 a.m. he came out of thebungalow, sat in the jeep bearing No.MH-03-

H-2814 and proceeded towards his Pant Nagar office. When the jeep crossed the distance of about300 meters from his bungalow the driver was constrained to stop the vehicle immediately as oneperson pulled the bicycle in the middle of the road and dropped it in front of the jeep.

The said person took position by the road side and two other persons came near him on the left sideof the jeep. There were two persons on the right side of the jeep and all these four persons had firearms in their hands. The persons on the right side of the jeep fired the bullet shots first and followedby others. There was continuous firing by the assailants. When they stopped firing the complainantcould see that Dr. Samant was lying injured on the rear side seat and the complainant had alsosustained injuries. He got down from the vehicle and started running towards Dr. Samant's



bungalow, but he fell down on the road because of giddiness. The driver was removed and taken tothe Rajawadi hospital by the police, whereas Dr. Datta Samant was taken to Aniket Nursing Homein the same jeep by his son Bhushan Samant.

The Nursing Home was owned by Dr. Prakash Samant. Dr. Samant was declared dead in AniketNursing Home by the attending doctors.

cri-appeal-864-00 The statement of the complainant was recorded by the police on 16th January,1997and C.R. No.21 of 1997 came to be registered with Sakinaka Police Station against 4 unknownpersons for the offences punishable under Sections 302, 307, 341 read with Section 34 of the I.P.C.,and Sections 3, 25 and 27 of the Arms Act. The complainant's supplementary statement wasrecorded on 17th January, 1997. The Police Inspector Mr. Landge, Police Inspector Thakur andother officers of the Sakinaka Police Station visited the spot on the same day and drew spotpanchnama at Exhibit 151. There were dry blood spots on the road and broken glass of windowpanes of the jeep and 8 empty cartridge of fire arms which were seized from the spot. Out of these 8cartridges found on the spot, 3 were 9 m.m., and the remaining 5 were 7.65 m.m. Police also visitedthe bungalow by name Gautam Niwas near the spot of incident and recovered one bullet which hadpassed through an iron sheet and fallen on the ground. The spot panchnama was completed at about16.10 hours. The Police also inspected the Tata Sumo jeep at Aniket Nursing Home and during theinspection they found that the left side window panes were broken and blood stains were also foundon the flooring of the vehicle and four 9 m.m., empty cartridges were also recovered and seized fromthe said cri-appeal-864-00 vehicle.

3. Inquest panchnama of the dead body was drawn at Aniket Nursing Home and in the presence oftwo panchas at Exhibit 140 and as many as 19 injuries were noticed on the dead body. The deadbody was removed to J.J. Hospital for postmortem. The clothes of the complainant were seized bythe police during the course of investigation under panchnama at Exhibit 205. The postmortemexamination was conducted by Dr. Ashok Shinde (PW 6) of Police Hospital, Nagpada and beforestarting the postmortem he had taken out x-rays of the wounds. During the course of thepostmortem he found 11 fire arms entry wounds and 6 fire arms exit wounds in addition to the otherwounds found on the dead body and 4 bullets were retrieved from the dead body. One deformedlead piece and deformed copper piece was also retrieved from the dead body. Statement of witnessescame to be recorded by the Sakinaka Police officers and further investigation was handed over to theD.C.B., C.I.D., by the Commissioner of Police.

Thereafter the investigation was taken over by Mr. T.R. Chavan (PW

68), Senior Police Officer. The blood samples as well as empties recovered from the spot and TataSumo jeep were sent to the Chemical cri-appeal-864-00 Analyzer along with the blood stainedcloths, bullets recovered from the dead body, deformed bullet cover and lead piece. The C.A.(Ballistic) of Forensic Science Laboratory report dated 12th February, 1997 ( Exh.

30) was received. Accused No.1 and Accused No.2 were apprehended at Kolhapur in room No.312 ofHotel Ayodhya situate at Kawala Naka, by the Kolhapur police and the said room was raided by



Deputy S.P. Mr. Shinde (PW 8) along with two independent panchas and police party on 23/1/1997.Their personal search was taken in the presence of panchas and accused No.1 was found inpossession of one 9 m.m. foreign made pistol and cash of Rs.800/-. Accused No.2 was found inpossession of a German made 7.65 mm. automatic pistol and a cash of Rs.1210/-, a receipt of HotelAyodhya in the name of accused No.1 indicating payment of Rs.350/- to the said Hotel was alsorecovered from the beneath the pillow of one of the beds. All these articles were seized.

During the forensic examination one 9 m.m. pistol empty was found below the mat near the driver'sseat of the Tata Sumo jeep. One cuprojacketed bullet having rifling mark was found below the matnear rear seat and similar bullet was found in the rear side of the jeep.

During the course of investigation accused No.5 and cri-appeal-864-00 accused No.6 were taken incustody on 11/2/1997 from Hotel Welcome Inn, Ahmedabad by the Police Inspector Mr. Pawal andSenior Inspector Mr. Shinde from room No.202 of the said hotel located in Navrangpura,Ahmedabad City. The personal search of accused No.6 resulted in the recovery of cash of Rs.250/-,one identity card issued by the Indian Audit & Accounts Department and one railway ticket fromVaranasi to Surat dated 7th February, 1997. The personal search of accused No.5 resulted inrecovery of cash of Rs.83/-, one visiting card of hotel Welcome Inn and one visiting card of GirnarLodge, Varanasi and one country made revolver having six chambers, loded with six rounds. Allthese articles along with one blue bag containing personal belongings of accused Nos. 5 and 6 wereseized under panchnama at Exhibit 167.

Both the accused were brought to Mumbai and the country made revolver and cartridges werere-sealed under the panchnama at Exhibit 244 dated 12th February, 1997 and they were put underarrest on the same day.

4. While under arrest the accused No.6 volunteered to make statement and accordingly he lead tothe house of accused No.8-Sanjay Baban Devkar situated on the main road of Airoli village. AccusedNo. cri-appeal-864-00 8 had produced one bag, one steel tank which contained the followingarticles:-

1. One 9 mm pistol having marking "TAURUS PT 99 AF 9 MM PARA. IT HAD ALSO MONOGRAMOF tarun brazil engraved on it. On eh other side of the pistol police found marking "TAURUS INTMFG. MIAMI FLA. MADE BRAZIL". It was found loaded with 8 (eight) live cartridges.

2. One pistol of foreign make.

3. One small card box containing 35 (thirty-five) 9 mm live cartridges.

4. One small card box containing 35 (thirty-five) 9 mm live cartridges.

5. 11 (eleven) loose 9 mm live cartridges.

6. One small plastic box containing 50 (fifty) rounds of .22 bore R.F. Long rifle.



7. 11 (eleven) live cartridges of 7.65 mm.

8. 13 (thirteen) live rounds of .38 bore.

The fire arms and ammunition so recovered were sent to the ballistic expert cri-appeal-864-00 andthe report dated 3rd April, 1997 was received. The statement of witnesses were recorded after theincident and thereafter some of these witnesses had given description of the accused, who had firedbullets on the Tata Sumo vehicle of the deceased. Accused Nos.1, 2 and 6 were subjected to T.I.

Parade at Arthur Road Prison and the parade was conducted by Shri Nagesh Sherigar, SpecialExecutive Officer. As per the statement of these witnesses, five accused who had fired bullet shotshad proceeded towards IIT, Powai from the Padmavati road in an auto rickshaw. It was also allegedthat accused No.6 had fired a shot in the air to threaten the public. It was also claimed that accusedNo.6 before leaving the spot had chased the injured driver driver Bhimrao Gyanoba Sonkamble toeliminate him, but thereafter the accused came back and left the spot along with others. Thestatement of the rickshaw driver was also recorded and he participated in the T.I. Parade in whichhe identified accused Nos.1, 2 and 6. The investigation also revealed that accused No.6 had obtainedone mobile telephone SIM card No.9821057075 from BPL and it was used for contacting otheraccused including the absconding accused No.4-Bharat Singh @ Bhagwantsingh Kuwar SinghThakur @ Bharat Nepali. It was also revealed that accused No.4 was having a BPL mobile phonebearing SIM card No.98210817844 whereas accused No.1 was also having a mobile of the samecompany bearing SIM card No. cri-appeal-864-00 9821056688 and all these mobiles were usedbefore, during and after the alleged incident by the accused for contacting each other. As per theprosecution accused Nos. 1, 2 and 6 and the wanted accused No.10-Vijay Chaudhary, accusedNo.11-Vikram @ Vicky had taken part in the actual opera]tion of firing on Dr.Datta Samant and thedriver. As per the prosecution accused No.3 -Prakash Shanker Sawant had transported two weaponsto Mumbai from Kolhapur which were later on seized from accused Nos. 1 and 2. Accused No.5 wasone of the conspirators and accused Nos.7 and 9 were the persons who wanted to eliminate Dr.Datta Samant on account of Union rivalry in the factory of Premier Automobiles Limited. AccusedNos. 7 and 9 had entered into a conspiracy and wanted accused no.4 had taken active part in thesaid conspiracy by masterminding the whole operation to eliminate the deceased and he hadreceived some amount from accused no.

7 for carrying out the operation. During the course of investigation, it was also revealed that accusedno.5 had obtained a passport by posing himself to be Arun Londhe and it was intercepted at postoffice at Kolhapur and taken charge by PW 8 - Shri Shinde, Dy. S.P. of Kolhapur and it wasforwarded to the IO. One diary was seized from the house of the father of accused no.5 at Parel,Mumbai and it is alleged that the entries made in the said diary regarding the addresses andtelephone numbers were in the hand writing of cri-appeal-864-00 accused no.1 - Arun Londhe. Thespecimen signatures of accused no. 1 along with his hand writing were sent for the opinion of thehand writing expert and Mr. Biradar - PW 71 had submitted his report that the writing in theregister of hotel Ayodhya, writing in the diary seized from the father of accused no.5 and thespecimen of hand writing were by one and the same person. Similarly, specimen hand writing ofaccused no.5 was obtained by asking him to write "Arun Londhe" and the expert's opinion indicated



that the signature on the passport i.e. "Arun Londhe" and the specimen hand writing so obtainedwere of the same person. Based on this, the prosecution alleged that accused no. 5 wanted to leaveIndia under the fake passport. The prosecution further claimed that mobile No. 9821057075, whichwas with accused no.6, was obtained by him through his brother and the SIM CARD was handedover to his brother - Chandrakant Bamane by Mr. Subramaniam of BPL for temporary use till thetelephone was delivered to them officially.

But the delivery challan of the said number was singed by accused no. 6 and he was working as aRecord Keeper in the office of the Principal Director of Commercial Audit and Ex. Officio MemberAudit Board-1, Mumbai-4. The hand writing expert has confirmed the hand writing of accused no. 6on the delivery challan and the leave applications. Print out of the bills of mobile telephone allegedlyused by accused no.6, accused no.4 and accused no. 7 cri-appeal-864-00 and his two brothers forthe relevant period were also collected during the course of investigation and it was revealed thatthere was frequent calls from and to the said mobile phone. The accused no.7 had also used themobile phones of his two brothers. It was also claimed by the prosecution that an amount ofRs.1,00,000/- in two installments was paid to accused no. 4 by accused no. 7, through his brotherand cousin, the first installment was paid at Kasturi Plaza Complex, Dombivali and the secondinstallment was paid at Mamta Hotel, MIDC, Dombivali, but on the same day i.e. on 16.1.1997. It isfurther alleged that another amount of Rs.2,00,000/- was paid on 28/1/1997 at Garden Hotel,Panvel to the brother of accused no.4 - Pushkarsingh.

5. Accused nos. 1 and 2 were arrested on 23/1/1997 at Kolhapur, accused no. 3 was arrested on30/1/1997, accused no.4 was arrested on 11/2/1997, accused nos. 5 and 6 were arrested on12/2/1997 after they were picked up from Ahemadabad, accused no. 7 was arrested on 13/2/1997and accused nos. 8 and 9 were arrested on 17/2/1997 and 10/4/1997 respectively and accused nos.10 to 16 were shown as wanted accused. On completion of the investigation, the charge-sheet wasfiled against accused nos.1 to 9 in the court of the learned Chief Metropolitan Magistrate, 19thCourt, Explanade, Mubai and the case was committed, as being exclusively triable, to thecri-appeal-864-00 Sessions Court. A separate charge-sheet came to be filed against wanted accusedno. 12 but he was discharged on 12/10/1999. On the same day, charge was framed against accusednos.1 to 9 at Exh. 13. All the accused pleaded not guilty to the charges and claimed to be tried.

6. The prosecution examined in all 73 witnesses in support of its case and Mr. Bhushan Samant, theson of the deceased, was examined as a court witness after the prosecution examined its witnesses.The prosecution claims PW 12 - Satish Ghade, PW 13 - Mukund Gaikwad, PW 14 -

Sakharam Johe, PW 16 - Ram Shankar Tiwari, PW 17 - Habib Ghankar, PW 20 Zafarali Sayyed, PW24 - Ramsamuji Varma and PW 28 - Rajendra Narkar as the eye witnesses in addition to thecomplainant - Bhimrao Sonkamble - PW 15.

In the evidence of the court witness - Bhushan Samant, it came on record that the deceased hasthree sons. He was staying with his elder son



- Dr. Prakash Samant and the youngest son - Ganesh Samant, who is an engineer and staying atSundernarayan Niwas and Bhushan Samant, the middle son, was not staying with him. Theyoungest son had his office in the nearby building known as Nilam Shopping Centre. BhushanSamant was at cri-appeal-864-00 Sundernarayan Niwas between 10.30 to 10.45 p.m. on 16/1/1997and after he left the house by his jeep, Bhushan Samant went to Ganesh's office (AbhishekEnterprises) at about 11 a.m. and there he received a message that his father was shout at. He,therefore, rushed to the spot where the Tata Sumo jeep with Registration No. MH-03-2814 wasstanding. He found that his father was lying in an injured condition in the said jeep and the left sidewindow glass of that vehicle was broken. He immediately asked driver Raju (another driver of hisfather), who had reached the spot in Maruti-1000 car to drive the jeep to Aniket Nursing Home. Hestated that one gas cylinder and bicycle were lying in front of the Tata Sumo jeep and both thesearticles were removed by the persons who had gathered at the spot. They reached Aniket NursingHome within 8 to 10 minutes and Dr. Datta Samant was immediately removed to the operationtheater and was examined by Dr. Rajbhar, who declared his dead. Bhushan Samant, therefore,informed the news to his brothers as well as uncle and asked all of them to come to Aniket NursingHome.

Dr. Prakash Samant - PW 65 was on duty at the Rajawadi Hospital at about 11.30 a.m. and hereceived the message that his father was shout at and he should reach Aniket Nursing Home. Hereached Aniket cri-appeal-864-00 Nursing Home at about 11.55 a.m. and saw that his father wasalready dead and Dr. Wagle and Dr. Rajbhar had attended to his father. The dead body of Dr. DattaSamant was removed to J.J. Hospital for post mortem and inquest panchanama at Exh.140 wasdrawn by the police before the post mortem.

7. As per Dr. Ashok Shinde - PW 6, who was the Medical Officer at Police Hospital, Nagpada on thedate of the incident, Dr. Datta Samant's dead body was received at 16.20 hrs. on 16/1/1997 and itwas brought by Police Constable No. 23852 of Sakinaka Police Station when the said doctor waspresent. He conducted the post mortem between 4.25 p.m. to 6.35 p.m. and on the externalexamination, he found the following injuries :-

(i) Fire arm wound of entry on the left side head laterally 4.0 c.m. above left eyebrowlateral and 7.0 cm. Above and front left external ear, 2.0 cm. X 1.6 cm. Oval, marginsirregular, inverted, no tattooing/singeing of hair, blood stained brain matter visible.

(ii) Abrasion red colour one cm. above and medially ext. injury No.one on left sidehead, laterally, 2.0 cm. X 1.4 cm.

(iii) Abrasion red colour 2.0 cm. below ext. injury No.one 1.3 cm. X 1.1 cm.

(iv) Fire arm wound of entry on the right side neck below chine one cm. from midline, oval, 1.0 cm.X 0.8 cm. with cri-appeal-864-00 guttering below and laterally 2.0 cm. length, inverted margins, Notattooing / singeing of hair.



(v) Fire arm wound of exit on the left side neck below chin two cm. from midline, 1.6 cm. X 1.4 cm.Inverted margins.

(vi) Fire arm wound of entry on the right side chest from 3.2 cm. below right collar bone, 3.5 cm.from midline, 0.8 cm. diameter with 0.5 cm. semicircular abraded collar on lower and outer (lateral)aspect, inverted margins, No tattooing or singeing of hair, dried blood/clots within.

(vii) Fire arm wound of entry on the right side chest front 10.0 cm. from midline, 5.0 cm. below andlaterally to right nipple, 0.8 cm. diameter with 0.1 cm. semicircular abraded collar on lower andmedially, inverted margins, No tattooing or singeing of hair.

(viii) Fire arm wound of entry on the right side chest front, one cm. medial to right nipple, 0.8 cm.diameter with 0.1 cm.

semicircular abraded collar on lower and laterally inverted margins, No tattooing/singeing of hairs.

(ix) Fire arm wound of entry on the right side chest front anterior arm-pit line, 2.9 cm. below andlateral to right nipple, 1.0 cm. below right axilla, 0.8 cm. diameter with 0.2 cm. semicircular abradedcollar on the lower and outer aspect, inverted margins. No tattooing/singeing of hair, driedblood/clots within.

(x) Fire arm wound of entry on the right side chest from 13.5 cri-appeal-864-00 cm. away frommidline, 8.3 cm. below right nipple 0.8 cm. diameter with 0.2 cm. semicircular abraded collar onlower and outer aspect, inverted margins. No tattooing/singeing of hair, dried blood/clots within.

(xi) Fire arm wound of entry on the right side chest front 4.3 cm. below and lateral to external injuryNo. ten (10), 0.7 cm. diameter (0.7 cm. diameter) with 0.1 cm. abraded collar encircling, invertedmargins. No tattooing or singeing of hair, dried blood/clots within.

(xii) Fire arm wound of entry on the abdomen front, epigastric area, left side, 0.5 cm. from midline,1.6 cm. below xiphisternum (lower end of sternum), 0.7 cm. diameter with 0.5 cm. semicircularabraded collar on lower and laterally, inverted margins. No tattooing/singeing of hair.

(xiii) Fire arm wound of entry on left side abdomen front 7.0 cm.

from midline, 3.2 cm. below left costal border, 0.8 cm. diameter with 0.2 cm. semicircular abradedcollar on the upper aspect, inverted margins, No tattooing or singeing of hair.

(xiv) Fire arm wound of entry on right side abdomen front, one cm. from midline, 5.5 cm. aboveumbilicus, 0.7 cm. diameter with 0.2 cm. semicirular abraded collar on upper and medial aspect,inverted margins. No tattooing or singeing of hair dried blood/clots within.

(xv) Fire arm wound of exit on left shoulder belt back, 9.1 cm. away from midline, 1.4 cm. x 1.3 cm.inverted margins.



cri-appeal-864-00 (xvi) Fire arm wound of exist on left side chest back, 3.5 cm. below and lateral toext. injury No.(15) fifteen 1.0 cm. x 0.9 cm.

inverted margins.

(xvii) Fire arm wound of exit on left side chest back 8.0 cm. from midline, 11.0 cm. below neckthorax junction, 1.1 cm. x 1.0 cm. inverted margins.

(xviii) Fire arm wound of exit on left side chest back, 17.0 cm. from midline, 11.0 cm. below andlateral to external injury No. (17), seventeen, 1.4 cm. x 1.1 cm. inverted margins.

(xix) Fire arm wound of exist on the left side chest back over left posterior axillary fold, 1.3 cm. x 1.0cm. inverted margins. (xx) Contusion on left upper arm upper 1/3, back level of ext.

injury No. (19) ninteen, red colour, 2.0 cm. x 1.0 cm. transverse (on post. Axillary fold of upperarm).

(xxi) Contusion on right elbow back, red colour, 1.4 cm. x 1.3 cm.

(xxii) Contusion on left elbow, back red colour, 1.2 cm. x 1.1 cm.

(xxiii) Abrasion red colour on right side chest back over scapula bond, 2.0 cm. x 1.4 cm.

On dissection of the dead body, he found following internal injuries corresponding to the aboveexternal injuries:-

(i) Perforated left side temporal scalp underneath with cri-appeal-864-00 haemorrhage pinkishunderneath, perforated left temporal muscle with pinkish haemorrhage in it, perforated lefttemporal bone 1.1. cm. x 1.0 cm. with radiating crack fractures to left temporal bone, left parietalbone, left side frontal bone, left temporal bone, to left middle crenial fossa outertable circular,innertable bevelled. Perforated meninges, perforated left temporal lobe of brain through andthrough with haemorrhage and laceration of brain tissue along passage of bullet with pinkishhaemorrhage. Perforated left temporal meninges on base. Perforated left middle crenial fossa, 1.6cm.

x 1.4 cm. with crack radiating fractures to left middle crenial forssa to body of sphenoid bone to rightmiddle crenial fossa.

Also crack fractures to left and right anterior crenial fossa which passed behind palate to oral cavity.A deformed lead piece of bullet retrieved from left side neck muscles below mandible laterally withhaematoma/haemorrhage around. A deformed copper jacket (copper piece) of bullet was retrievedfrom larynx. A deformed lead small piece from tracheal ring 3rd. Haemorrhage along passage ofbullet.



(ii) Corresponding with external injury No.four (4):-

Ext. Injury No.4 - entry) Passes underneath muscles

Exh.Injury No.5 - exit ) only.

(iii) Corresponding with external injury No.six (6):-

Perforated right side chest front skin and muscle cri-appeal-864-00 underneath with haematomaunderneath, perforated manibrum 1.0 cm. diameter with outertable circular, innertable bevelled.

Injured (perforated left common carotid artery, left subsclayian artery with vein with nervesaccompanying, passes neck muscles of left side with exit wound corresponding ext. injury No.(15)fifteen. Hemorrhage along passage of bullet.

(iv) Corresponding with external injury No. seven (7) :-

Perforated right side chest front skin and muscles underneath with haematoma underneath.Perforated 5th rib on right side chest front upper border with 4th IC space, perforated. Perforatedright pleura, perforated right lung middle lobe, perforated right pleura, perforated pericardium,perforated right ventricle to left ventricle through and through, perforated pericardium, perforatedleft pleura, perforated lung upper lobe through and through, perforated left pleura, perforated andfractured 3rd rib left side chest back with exit wound corresponding ext. injury No. (17) seventeen.Haemorrhage along passage of bullet.

(v) Corresponding with ext. injury No.eight (8) :-

Perforated right side chest front skin and muscles underneath with haematoma underneath.Perforated 4th rib upper border with 3rd intercostal space on right side chest front. Perforated rightpleura, perforated right lung upper lobe through and through. Perforated and fractured 2nd thoraciccri-appeal-864-00 vertibral body through and through. Perforated left pleura, perforated andfractured 1st rib on left side chest back with exit wound corresponding ext. injury No.sixteen.Haemorrhage along passage of bullet.

(vi) Corresponding with ext. injury No. Nine (9) :-

Perforated right side chest front skin and muscles underneath with haematoma underneath.Perforated 4th intercostal space on right side chest front. Perforated right pleura, perforated rightlung, middle lobe through and through. Perforated right pleura, perforated superior venacavathrough and through and perforated ascending aorta through and through with pericardium.



Perforated left pleura, perforated left lung upper lobe through and through. Perforated left pleura,perforated 2nd IC space on left side chest back laterally with exit wound which corresponds to ext.

injury No.19. Haemorrhage along passage of bullet was found.

(vii) Corresponding with ext. injury No.ten (10) :-

Perforated right side chest front skin and muscles underneath with haematoma underneath.Perforated 6th IC space with fractured 6th rib lower border. Perforated diaphragm, perforated rightlobe of liver through and through. Perforated diaphragm, perforated pericardium. Perforated leftventricle posteriorly left pleura. Perforated pericardium. Perforated left pleura, perforated left lung,lower lobe through cri-appeal-864-00 and through. Perforated left pleura, perforated 6 IC spacewith fractured 7th rib with exit wound corresponding ext. injury No. eighteen (18). Haemorrhagealong passage of bullet.

(viii) Corresponding with ext. injury No.eleven (11):

Perforated right side chest skin and muscles with haematoma underneath. Perforated 8th rib 0.8cm. diameter with outertable circular inner table bevelled, perforated diaphragm. Perforated rightlobe of liver through and through.

Perforated diaphragm, perforated right pleura. A copper jacketed small lead bullet was retrived from8th IC space right side chest back. Haemorrhage was found along the passage of the bullet.

(ix) Corresponding with ext. injury No.twelve (12) :-

The injury No.12 was panetrating and passing through left side abdomen to right side abdomenfront muscles to perforated diaphragm. Lacerated right lobe of liver diaphragmatic surface.Perforated diaphragm, perforated and fractured 5th rib of right side chest front, penetrated passesright side chest back muscles near right axilla with haemorrhage arround. Haemorrhage alongpassage of bullet.

(x) Corresponding with ext. injury No. thirteen (13) :-

Perforated left side abdomen front skin and muscles underneath with haematoma underneath.Perforated cri-appeal-864-00 peritoneum, perforated jejunum coil 25.0 cm. from the duodenum,penetrating mesentry of jejunum 30 cm. from duodenum left side abdomen. A copper jacketed smalllead bullet retrieved from mesentry of jejunum with haemorrhage arround.

(xi) Corresponding with ext. injury No. fourteen (14):-

Penetrate right side front wall skin and muscles underneath. A copper jacketted lead small bulletretrieved from right side front wall muscles above peritoneum with haematoma arround.



8. All the injuries were ante mortem and on completion of the post mortem, he came to theconclusion that the death was due to fire arm injuries.

All the fire arm injuries were fatal and were sufficient to cause death in the ordinary course ofnature. He had retrieved four bullets and three fragments of bullets from the dead body. The bullet -article 21 was retrieved from the small intestine. The bullet - article 22 was retrieved from right sidechest back muscle near right axilla. The bullet - article 23 was retrieved from the right side abdomenfront wall muscle. The bullet - article 24 was retrieved from 8th intercostal space, right side chestback. He also retrieved the deformed copper piece at article 26, lead piece - article 28, lead piece -

article 30 and he had forwarded the bullet pieces and lead pieces recovered cri-appeal-864-00 fromthe dead body to the chemical analyzer. He also stated that before starting the post mortemexamination, 13 x-rays of the injured parts of the dead body were taken by the Duty Medical Officerand he had signed the post mortem report at Exh.88 colly. In his cross-examination, he admittedthat there were in all 11 bullet injuries on the person of the deceased and there were 11 entry woundsand 6 exit wounds. He also admitted that there were no corresponding exit wounds to entry woundnos. 1 and 11 to 14. The diameter of injury no.11 was 0.7 cm. and there were two other injuries withthe same measurement (i.e. injury nos.12 and 14). There were in all six entry wounds of 0.8 cm.diameter. There was no entry wound on the back side of the dead body, whereas external injury nos.4, 6 to 8 and 12 to 14 were on the front portion of the body. Injury No.1 was on the lateral portion ofthe left side.

From injury Nos.4 and 5 it could be said that the bullet had entered from the right side and gone outfrom the left side of the neck. From injury nos.6 and 15 it could be said that the bullet had enteredfrom the right side chest and gone out from the left side back. Injury No. 17 was caused by the bulletwhich entered from the right side chest. Injury Nos.8 and 16 were corresponding entry and exitinjuries. Similarly, injury nos.12 to 14 were bullet entry injuries. Injury Nos.9 and 10 werecorresponding entry and exit bullet injuries. This witness, therefore, proved that Dr. Datta Samantdied on cri-appeal-864-00 16/1/1997 on account of fire arm injuries.

9. PW 4 - Dr. Bipin Lal was the Medical Officer at Rajawadi Hospital on the date of the incident andhe was on duty in the casualty department from 8 a.m. to 2 p.m. PW 15 - Bhimrao Sonkamble wasbrought to the hospital by Police Constable Buckle No. 18209 and he examined the patient at 11.55a.m. Patient had given the history of bullet injury and on his examination, he found the followinginjuries on the person of PW 15:-

(i) Bullet injury on left nape of neck (suspected entry wound) with haematoma.

(ii) Bullet injury on right maxilla.

(iii) Bullet injury at the junction of soft and hard palate.

The patient was conscious when he was brought to the hospital.



The pulse rate of the patient was 100 per minute and his blood pressure was 90 systolic. Thenecessary entries in the Casualty Medico Legal Register were made at Entry Sr. No.767 in his handwriting. In his cross-examination he admitted that there was no corresponding suspected exitwound and injury no.2 was a grazing wound. PW 5 - Dr. Namita Choudhary was doing hercri-appeal-864-00 M.S. (General Surgery) at Sion Hospital and was posted at Rajawadi Hospital fora period of six months. On the date of the incident she was attached to Surgical Ward under Dr.Mehandale, who treated PW 15 along with Dr.Shenoy. After PW 15 was admitted in the SurgicalWard at about 12.10 p.m. he was examined by Dr. Anjali Gwalani. The evidence of PW 4 - Dr. BipinLal and PW 5 - Dr. Namita Chaudhary has proved that PW 15 -

Bhimrao Sonkamble had sustained three bullet injuries.

10. Having regard to the evidence of PW 6 - Dr. Ashok Shinde and court witness - Bhushan Samant,the son of deceased, it is not much in dispute that Dr. Datta Samant died of fire arm/bullet injurieson 16/1/1997.

To prove that PW 15 - Bhimrao Sonkamble sustained bullet injuries in the same incident that hadtaken place on 16/1/1997, the prosecution has relied upon the depositions of PW 15 - BhimraoSonkamble, PW 4 - Dr. Bipin Lal and PW 5 - Dr,. Namita Chaudhary. PW 15 in his evidence statedthat he was engaged as the driver of the deceased and while he was driving the Tata Sumo jeep withthe deceased sitting rear side on 16/1/1997, just around 10.45 a.m. and after he came out of thehouse of the deceased and while on Padmavati Road, some unknown persons stopped the jeep andsuddenly gun fire shots were heard. He did not support the prosecution case regarding the identityof cri-appeal-864-00 the accused concerned, but at the same time he did not deny that the deceasedwas fired at and he himself also sustained bullet injuries. He also stated that he had becomeunconscious while in the driver seat after hearing the big noise and when he regained consciousness,he noticed that blood was oozing from his mouth and from behind his left ear. His clothes weresoaked in blood and, therefore, he got down from the vehicle and started running towards thebungalow of the deceased. However, after running for a short distance, he fell down and becameunconscious. He regained consciousness only in the Rajawadi Hospital. It would be, therefore, safeto hold that the prosecution has proved beyond doubt that PW 15 also received bullet injuries duringthe course when the deceased was shout at on 16/1/1997.

11. The oral depositions before the trial court of PW 23 - Jyotiram Mane, Police Constable, PW 68 -T.R. Chavan (IO) and PW 6 - Dr. Ashok Shinde along with the C.A. reports at Exhs. 84 and 85 andPW 3 - Dr. Sudhir Kamat, the prosecution has proved that the blood group of Dr. Datta Samant was"A", whereas the blood group of PW 15 - Sonkamble was "B".

Regarding the place of incident, the city survey office had drawn a map and it was placed by theprosecution at Exh. 124-A. In addition the defence counsel also got prepared a sketch of the spot ofincident and it was placed before the cri-appeal-864-00 trial court at Exh. 124. Both thesedocuments have been admitted by each of the parties. Both these maps have shown the locations ofPadmavati Road, Vasant Villa, Gautam Nivas, office of the son of Dr. Datta Samant i.e. AbhishekEnterprises, Mutton shop of PW 17 - Habib Ghankar, Mahavir Electricals and Hardwear Store of PW



13 - Mukund Gaikwad, the rickshaw stand opposite Mahavir Store, Pan shop of the father of PW 20 -Zafarali Sayyed and these locations have not been disputed.

12. So far as the statements recorded under Section 313 of Cr. P.C. of accused nos.2, 6 and 8 areconcerned, accused no. 6 - Ganpat Bamane had admitted that he was working as a record keeper inthe office of Principal Director of Commercial Audit and his leave applications used to be sanctionedby PW 70 - Devnath Gaidhane. Accused Nos.2 and 6 have denied their presence on the spot of theincident. Accused No.6 denied that he was apprehended at Ahmedabad and similarly accused no.2denied that he was arrested at Kolhapur. Accused No.8 denied the recovery of arms andammunitions from his house.

13. PW 7 - Shri Ashok Jadhav was a rickshaw driver and a resident of Kolhapur. He stated before thetrial court that on 23/1/1997 at about 2.30 cri-appeal-864-00 p.m. he had dropped one passenger atPolice Headquarter, Kolhapur and while he was returning, he was called by a police constable alongwith another rickshaw driver and taken inside the police station and to the office of PW 8 - AshokShinde, Deputy S.P., who informed them that they had to check one of the room at Ayodhya Hoteland their willingness was sought.

They agreed to act as panchas. The police team along with these panch witnesses went to HotelAyodhya in two Tracks jeeps at 2.45 p.m. Mr. Shinde took the register from the hotel manager andfound out that two passengers by name Arun Londhe (A-1) and Vijay Thopate (A-2) were staying inroom no. 312 of the said hotel and thereafter the register was returned to the manager. PW 7 andMohd. Gaus along with Mr. Shinde went to room no.

312 on the third floor when it was shown by the hotel manager - Shri Bansode. Mr. Shinde rang thebell from outside and the door was opened by one of the passengers staying in the said room. Mr.Shinde introduced himself to both the occupants of the room and directed them not to move fromthe place. PW 7 identified accused no.1 as the person who had opened the door of the said room andaccused no.2 as the person who was also present in the said room. The personal search of both theaccused was carried out by the police and one pistol was found concealed by accused no.1 inside histrouser and below the shirt. The pistol was examined by Mr. Shinde and it was cri-appeal-864-00empty. The pistol was shown to the witnesses and the words found on it indicated that it was "madein Spain - 9 mm". The cash amount of Rs.800/-

was also recovered from accused no.1 from his right side trouser pocket. In the personal search ofaccused no.2, one pistol was recovered from his right side trouser pocket and there were nocartridges in the same. The words "made in W. German" were found in engraved on the said pistolalong with the words "automatic". The cash amount of Rs.1210/- was also recovered from the personof the accused no.2. One receipt of Rs.350/- was also recovered from beneath the pillow and it wasin the name of accused no.1.

The two pistols and cash amount recovered by the police were sealed in the presence of the panchasafter applying the labels. The signatures of the panchas were obtained along with the signature ofMr. Shinde and thus five packets were prepared by drawing a pachanama (Exh.90). Article 38 was



the pistol recovered from the accused no.1 and Article 34 was the pistol recovered from accusedno.2. Two small cash bundles were also shown to the witness before the court and he identified thesame i.e. Articles 97 and 98, the hotel receipt was identified and marked as Article 99. He identifiedthe panchanama at Exh. 96. He also admitted the register collected by Mr. Shinde from the hoteland produced before the court as Article 100. The raiding party left the hotel around 5 p.m. andwent to the office of the DIG in an auto cri-appeal-864-00 rickshaw. In his cross examination, healso admitted that he had not visited hotel Ayodhya before 23/1/1997. He also admitted that till thefinding of hotel receipt beneath the pillow, the pistols Articles 34 and 38 and the cash amount werenot sealed by the police. In his searching cross examination, there was nothing brought out todisbelieve the witness regarding the raid of the police party at room no.312 of hotel Ayodhya and thearrest of accused nos.1 and 2 along with recovery of pistols and cash amount as well as the hotelroom receipt. The evidence of this panch witness read along with the evidence of PW 8 - AshokShinde proved the arrest of accused nos.1 and 2 from hotel Ayodhya at Kolhapur on 23/1/1997 andthe recovery of pistols Articles 34 and 38 along with the cash amount and hotel receipt in the nameof accused no.1.

14. PW 25 - Tarunkumar Barot was the Police Inspector, Crime Branch, Ahemadabad. He statedbefore the trial court that on 11/2/1997 two police officers, namely, Shri Shinde and Shri Pawalalong with two police staff from Mumbai Police had visited his office and Shri Bhatia, DCP, hadcalled him in his Chamber to meet these officers. The police officers from Mumbai had told thewitness and Shri Bhatia that two accused connected with the murder of Dr. Datta Samant werestaying in hotel Welcome Inn, cri-appeal-864-00 Room No. 202. Therefore, at about 5 p.m., healong with his staff and the police personnel from Mumbai proceeded to hotel Welcome Inn which issituated at C.G. Road, Naurangpura, Ahemdabad and reached there at 5.45 p.m. After giving theidentity to the Manager of the said hotel, the register of the hotel was checked and they went tosecond floor of the hotel with two waiters. On the bell-ring, somebody from inside asked, who it wasand on being told that it was the waiter, Room No. 202 was opened. The person inside disclosed thename as Ganpat Bamane (Accused no.6) and the other person was Raju @ Dhedka Baje (Accusedno.5). Police Officer Shri Pawal took personal search of accused no.6 and recovered cash of Rs.250/-along with the identify card from his pockets. One railway ticket from Varanasi to Surat was alsofound in the possession of accused no.6. When the personal search of accused no.5 was taken, onecountry made revolver was found in his right side pant pocket and Shri Pawal checked the saidrevolver which was loaded with six cartridges. Shri Pawal took out the cartridges from the revolverand handed the revolver and cartridges to the witness. Panchanama was drawn by Shri Shinde. Thecountry made revolver had six chambers. A cash amount of Rs.83/- was found in possession ofaccused no.5 with two visiting cards, one of hotel Welcome Inn and the other of Girnar Hotel,Varanasi. The panchanama was conclued at 19.05 hrs. and accused nos.5 and cri-appeal-864-00 6were taken in custody by the Mumbai police officers and they left along with the accused forMumbai at 20.30 hrs. He made station diary entry at about 21.00 hrs. He identified revolver andcartridges before the court i.e. Article Nos.47 and 50 respectively.

In his cross-examination, he admitted that he did not remember whether he had stated before thepolice that accused no. 6 had opened the door. He also admitted that his signature was not obtainedon any other articles seized by the police from the possession of accused nos.5 and 6. He also



admitted that accused nos.5 and 6 were not arrested from any hotel. At the same time he denied thesuggestion that they were brought to the police office at Ahemedabad by the officers from MumbaiPolice. He also denied that accused no. 5 was not found in possession of revolver.

PW 36 - Shri Shrirang Shinde was the Sub Inspector of Police, attached to the Nirmal Nagar PoliceStation at the relevant time. He stated before the court that the investigation team was headed by PIPawal and he was one of the members of the said team. On 10/2/1997 at 10 p.m. he was informed byShri Pawal that they were required to go to Ahemedabad for some confidential work on the nextdate early in the morning and accordingly cri-appeal-864-00 two of them along with one policeconstable left to Ahemedabad by train on 11/2/1997 at about 4.30 a.m. They reached Ahemedabadat 3.30 p.m. and went to the office of Crime Branch of Ahemedabad Police and met DCP Shri Bhatia.At about 5 p.m. they left the Crime Branch office to go to hotel Welcome Inn by a private vehicle andthey reached the hotel at about 5.45 p.m. He corroborated the evidence of PW 25 regarding thearrest of accused nos.5 and 6, the search and recovery of a pistol, ammunitions, cash, railway ticketsand visiting cards. The evidence of these two witnesses read together clearly proved the prosecutioncase that accused nos.5 and 6 were taken in custody by the PI Shri Pawal and PW 36 from the hotelWelcome Inn with the help of PW 25 and were brought to Mumbai. Article 47 was recovered fromaccused no.5 along with six cartridges.

The evidence of PW 25 and PW 36 has been corroborated by the evidence of PW 62 - Shri AnilbhaiPopatia.

15. Accused Nos.5 and 6 were brought by the police team to Mumbai on 12/2/1997 and subsequentlyshown arrested. As per the evidence of PW 11 - Pandurang Adhale, Police Inspector attached to DCBCID Mumbai at the relevant t ime, during the course of interrogation, accused no.6cri-appeal-864-00 volunteered to show the weapons on 17/2/1997 and, therefore, his statement wasrecorded in the presence of two panchas i.e. Bhagwan Popat and Mari Karamchand Bahuwa (PW 9)at about 2.40 p.m. Though PW 9 turned hostile, the evidence of PW 11 has proved the recovery ofthe following articles in the search of the house of accused no.8:-

1) Taurus Brazil pistol, made in Brazil, body No.TH 144760. The said pistol was foundloaded with eight cartridges;

2) The eight cartridges were found marked with `9 mm KF 87';

3) One foreign made pistol;

4) One card board box containing 9 mm KF 87 live cartridges -

total 35;

5) Another similar box containing 35 live cartridges of 9 mm.

They were bearing marks KF 87 and some of them were bearing marks KF 85;



6) 11 live cartridges 9 mm KF 87;

7) One plastic box containing 50 cartridges of .22;

8) 11 cartridges of 7.65 mm;

9) Another 13 live cartridges;

cri-appeal-864-00 It was accused no.6 who had taken the police team to the house ofaccused no.8 and accused no. 8 had opened the door of the house and in his presencethe search was taken. Accused no. 8 was taken in custody.

Articles 54 and 57 were the pistols which were seized under the panchanama at Exh. 115-B andArticle 60 were intact cartridges, in all 84 in number.

There were other 89 cartridges of 9 mm size and 48 intact bullets were also recovered. Article 69were 10 intact bullets, Article 64 were six intact bullets.

The seized articles were handed over to PI Chavan. The evidence of this witness read with theevidence of PW 68 - Shri Chavan, IO, has proved the recovery of the pistols and ammunitions fromthe house of accused no.8 and at the instance of accused no.6 on 17/2/1997, despite PW 9 Mari K.Bahuwa turned hostile.

16. T. I. Parade of the arrested accused was conducted by PW 66 -

Nagesh Sherigar (Special Executive Officer) and PW 72 - Mohiddin Shaikh was a panch witness forthe same. The evidence of both these witnesses read with the parade memo at Exh. 233 went toshow that there was no procedural error in conducting the TI parade and accused nos.2, 6 and 8were identified by the concerned witnesses. It is also pertinent to note that notwithstanding theevidence of these 2 witnesses, the concerned eye witnesses, in their cri-appeal-864-00 depositionsbefore the trial court, identified the accused concerned and we shall deal with the samesubsequently. We have also noted that PW 66 did not support the prosecution case in identifying thenames of accused nos.1, 2, 6 and 8 and he was not declared a hostile witness.

17. So far as the incident is concerned, PW 12 - Satish Ghade deposed before the trial court that fromthe year 1994 to 1997 he was employed with Abhishekh Enterprises which belonged to Shri GaneshSamant, a son of the deceased. He was on duty between 8.30 a.m. to 9 p.m. on 16/1/1997 and atabout 10.15 a.m. Bhushan Samant, another son of the deceased, had visited Abhishekh Enterprisesand directed him to bring tea. He further stated that at about 11 a.m. Umesh Shinde, the Supervisoralso came and directed him to bring a new file from the shop situated in the same locality. While hewas went to purchase the file, he saw some people running helter skelter on Padmavati Road. Hehad also seen the driver of the deceased i.e. PW 15 -Sonkamble running towards the bungalow of thedeceased and one person was following him with a pistol in his hand. He had also seen that theclothes of the driver were soaked with blood. He, therefore, got frightened and immediately



returned to the office and narrated the incident to Bhushan Samant. Bhushan Samant, therefore,rushed towards cri-appeal-864-00 the Tata Sumo jeep which was standing on the road at the placeof incident.

He identified accused no.6 as the person who was following PW 15 on 16/1/1997 at the spot of theincident. The witness further stated that after one hour he came to know that Dr. Datta Samant wasdead. He closed the office and went home and did not attend his duty on 17/1/1997 because themarket was closed on account of the incident. On 18/1/1997, he was on duty and one policeconstable had come to his office and taken him to the police officer Mr. Chavan, who recorded hisstatement. He stated that he was taken to the Byculla Jail on 27/2/1997 at about 6.30 p.m. and thepolice officer had shown him 7-8 persons in the prison. He identified a tall person and in the courthe identified him as accused no.6. In the searching cross-examination that this witness wassubjected to, it was proved by the prosecution that the incident had taken place and PW 15 hadsustained bullet injuries and he was chased by accused no.6. It was also proved that he hadidentified accused no.6 in the Byculla prison and in the court, as well, as the same person whom hehad seen following PW 15 with a pistol in his hand.

18. PW 13 - Mukund Gaikwad was working as a salesman on the date of the incident with MahaivrElectrical and Hardware Store situated near the spot of incident and his duty hours were between8.30 a.m. to 9.30 p.m. cri-appeal-864-00 He knew the deceased because he was staying in the samelocality i.e. Sunder Narayan Nivas. He stated before the trial court that Dr. Datta Samant was havinga Tata Sumo jeep and he was killed on 16/1/1997 at about 11.15 a.m. He and his employer werepresent in the shop at the time of the incident and he had heard a sound like bursting of crackersand hence he came out of the shop. He saw that five persons were holding pistols in their hands andthey were threatening the people and proceedings towards the rickshaw stand which is located at adistance of about 600 to 700 ft. from his shop. One of these persons fired a bullet in the air andthree of them had boarded one rickshaw. In the rickshaw, one of these three persons put a pistol onthe rickshaw driver's neck and asked him to proceed towards Gandhi Nagar. The remaining twopersons also followed them in another rickshaw. People on Padmavati Road got frightened and theshop keepers downed their shutters.

He had gone near Tiwari Dairy to find out as to what had happened and he came to know that Dr.Datta Samant had shout at and had sustained bullet injuries. After closing his shop, he went home,but after lunch he returned when he learnt that Dr. Datta Samant died. He stated before the courtthat he could identified three of the five persons he had seen on Padmavati Road and he pointed outtowards accused no.1, accused no.2 and accused no.6 being the same persons whom he had seen atthe time of the incident. He stated that cri-appeal-864-00 accused no.6 had put his pistol on theneck of rickshaw driver and accused nos.1 and 2 had also boarded the same rickshaw on the date ofthe incident.

Police had visited his shop on 22/1/1997 and his statement was recorded and he was taken to theCrime Branch situated at Crawford market. He was again called by the police on 28/2/1997 foridentification parade at Aurthur Road Prison after he was intimated about the same on the earlierday. Accordingly, he reached the Aurthur Road Prison situated at Saat Rasta and police officer Shri



Chavan met him out side the prison and allowed him to enter the prison.

He was directed to sit in one of the rooms where there were about 14-16 persons. After some time,SEM met him and he was taken in the parade room by a panch. The SEM asked him to identify anyone of the 12 persons standing in a row in the room and he had identified two of them i.e. accusedno.1 and accused no.2. The SEM had asked accused nos.1 and 2 their names and written down ontwo separate chits, which were given to the witness. He was against called back in the second roundwhen there were 6-7 persons in a row and in that he identified accused no.6. Thereafter he had leftthe prison.

In his cross-examination, he stated that he was working with Mahavir Stores since June 1995 but hedid not have any documentary proof to show that he was so working. The name of his employer wasRajesh but cri-appeal-864-00 he did not know his full name and he did not narrate the incident tohis employer. He admitted that till the police contacted him on 22/1/1997, he had not disclosed theincident to anybody as he did not feel it necessary. He was shown the map at Exh. 124. He admittedthat the rickshaw stand was at a distance of 5 to 6 ft. from Mahavir Store on Padmavati Road andopposite the said store. He denied the suggestion that when the people started running helterskelter, the vegetable vendors had also joined them after the incident, but admitted that there wereabout 40 to 50 persons. He also stated that on Padmavati Road there were many shops, includingTiwari Tea stall and a country liquor bar. He also admitted that between the house of the deceasedand his shop, there were about 10 to 15 shops and all shops were opened on the date of the incident.He reiterated in his cross-examination that he had seen the five persons who boarded two differentrickshaw at a distance of 5 ft.

from his shop and the were threatening the nearby persons. None of the members of the publicattempted to apprehend the said five persons and he also did not attempt to do so. He also statedthat he was the nearest person to see five persons but he did not get frighten and none of them hadthreatened him. He had noticed that the persons who had kept pistol on the neck of the driver of therickshaw was having thick mustache and his nose was little fat.

Whereas the second person who was sitting in the centre of the rear seat was cri-appeal-864-00having shrunken eyes and pimples on his face. The third person was of fair complexion and washaving thin mustache. He stated that at the time of the identification parade, he had identified allthese persons on the basis of the above stated peculiar description. He denied the suggestion thatany police officer had given any chit to him on 22/1/1997. The evidence of this witness, as recordedbefore the trial court, supported the prosecution case that he had seen five assailants and heidentified three of them i.e. accused nos.1, 2 and 6 in the TI parade on the basis of some specialfeatures of their personality.

Though, he had not actually seen them firing at the deceased or PW 15, but at the same time he hadseen them going to the rickshaw stand and at least one of them holding a pistol and who had firedthe bullet in the air for scaring the people from the spot on Padmavati Road on 16/1/1997 and therewas no material brought on record to suspect or doubt the testimony of this witness.



In our opinion, he was a natural witness and happened to be near the spot of the incident on accountof his employment.

19. PW 14 - Sakharam Zohe was selling potatoes and onions from his shop near the rickshaw standon Padmavati Road and his shop hours were between 9 a.m. to 11 p.m. He stated before the trialcourt that on the date of the incident, he was present in his shop and he knew Dr. Datta Samant. Oncri-appeal-864-00 the date of the incident at about 11.15 there was commotion on Padmavati Roadand people had started running helter skelter. He had seen five assailants and one of them had fireda bullet in the air from his pistol. These five assailants were running towards rickshaw stand locatednear his shop and one of them fired a bullet on the ground near the place where he was standing.These five persons fled away in two rickshaws and three of them had boarded one rickshaw and theremaining followed in another rickshaw.

On 18/1/1997 at about 4 p.m. two police constables visited his shop and he narrated them theincident. His statement was recorded in writing. He stated in his cross examination that during theidentification parade he had identified accused no.6 whose name was Ganpat and he identified thesame person in the court as well. He stated that he had seen his face and he had noticed that he hadmustache. He stated in the cross-examination that the bullet fired on the ground was collected byhim and handed over to the police.

20. PW 17 - Habib Ghankar was running his mutton shop on Padmavati Road and his businesshours were between 8 a.m. to 8 p.m. He knew Dr. Datta Samant as he was staying in the samelocality. He stated that the incident had taken place on 16/1/1997 in front of Gautam Nivas at adistance of about 100 ft. from his shop around 11 a.m. He was standing cri-appeal-864-00 outsidehis shop and seen one boy aged about 10-12 years carrying a gas cylinder on a bicycle andaccompanied by a lady. While he was carrying the cylinder on the bicycle, it fell down on the road(Padmavati Road) and two persons came on the road and they picked up the cylinder, placed it onthe carrier of the bicycle. Within about 2-3 minutes, when he was inside the shop, he heard thesound of bursting of crackers and heard commotion on the road. He, therefore, came out of his shopand found that the shop keepers were downing their shutters.

ig He learnt that Dr. Datta Samant was shot at.

On 27/2/1997 he was informed about the TI parade and accordingly he went to the Aurthur Roadprison on 28/2/1997. He could not identify any of the accused in the first round. Again he was calledin the second round when only 6-7 persons were standing in one row and he identified accused no.6.

He identified the said person in the court as well and as the same person who was tieing the cylinderon the bicycle stand at the spot of the incident. He denied the suggestion that the Tata Sumo jeepwas on the spot till 4 to 5 p.m. on 16/1/1997. He stated that Dr. Datta Samant was taken to thehospital in the same jeep and it was driven by another driver of the deceased. He stated that the boywho was carrying the cylinder on his bicycle and the lady were never seen by him prior to theincident on Padmavati Road. He further stated that out of the two persons who were helping to put



the cylinder on the cri-appeal-864-00 bicycle carrier was tall (about 6 ft.) and the other person wasshort about 5 ft.

6 inches) and he had a causal glance of the said two persons.

21. PW 20 - Zafarali Sayyed was another eye witness who was running his Pan shop on PadmavatiRoad and the Pan shop was located opposite the rickshaw stand. He knew Dr. Datta Samant. He hadopened his Pan shop at 8 a.m. on the date of the incident and at about 11 a.m. he had gone to fetchwater from Pawan Gupta Chawl. He heard the sound of firing when he was in the chawl and on hisreturn to Padmavati Road, he saw that five persons holding pistols were going towards IIT junctionand they were threatening the people and one of them had fired shot in the air. All the five personshad passed from his shop and he had also heard the sound of second shot for firing. He also statedthat he had seen three of these five persons boarding one rickshaw and one of them had put hispistol on the neck of the rickshaw driver and directed him to drive away the rickshaw. In the secondrickshaw, two other assailants boarded and left the spot. The rickshaws were seen going towardsGandhi Road. He had seen Dr. Datta Samant lying in white Tata Sumo jeep and was profuselybleeding. In his cross examination he stated that accused nos.1, 2 and 6 were amongst the fivepersons he had sen fleeing from the spot of incident and they had boarded the first rickshaw.

cri-appeal-864-00 He also stated that accused no.6 was the same person who had put his pistol onthe neck of the driver of the rickshaw. He also stated that on 28/2/1997 he had visited the Bycullaprison and participated in the TI parade. In the first round from about 12 persons he had identifiedaccused nos.1 and 2. In the second round out of 7 - 8 persons standing in one row, he had identifiedone of them i.e. accused no.6. He admitted that he had not told anybody about the incident until hisstatement was recorded by the police. He stated that he had given description of three accused whenhis statement was recorded by the police and one of them was having pimples on his face. He deniedthe suggestions that he had not seen accused no.2 on the date of the incident and that he had notidentified him in the TI parade. He stated that one of the accused was having pimple type marks onhis face and the second one was of fair complexion with brownish mustache and brownish eyes,whereas the third one was having big face and the thick mustache and these were three persons whowere sitting in first rickshaw. He denied the suggestion that he was shown photographs of accusednos.1, 2 and 6 in the office of DCB CID and that they were shown to him before the TI parade. Healso denied the suggestion that description of accused nos.1, 2 and 6 was given to him by the police.

cri-appeal-864-00

22. The next eye witness is P.W.24-Ramsamuj Kalidin Varma, a rickshaw driver. He stated beforethe trial Court that he owned rickshaw bearing registration No.MH-0-3J-6147. On 16th January,1997 he got a passenger from Gandhi Nagar to Andheri and thereafter from Andheri to MIDC. Hehas reached Powai at about 10.30 to 10.45 a.m. and parked his rickshaw on the corner of Padmavatiroad and was waiting for passenger.

Suddenly three persons sat in his rickshaw and threatened. They directed him to drive the rickshawtowards Kanjurmarg and one of them had put a weapon like revolver on his neck and other one had



also put similar type of weapon on his back. When the rickshaw reached the junction of GandhiNagar he saw that police wireless van was standing beyond the junction and one of them directedhim to take a turn on the left side. He proceeded to Kanjurmarg railway station and he was asked toslow down the rickshaw.

All the three got down from the rickshaw when it was in a slow motion. He further stated that on17th or 18th January, 1997 he read in a news paper about the assassination of Dr. Datta Samant andthat the killers had fled away from the spot. He went to the crime branch on 20th January, 1997 andmet the Police Officer Mr. Chavan. The rest of the evidence of this witness need not be considered ashe declared hostile.

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23. P.W.21-Ramdas Nathu Rathod has stated before the trial Court that on 16th Januar, 1997 he wason duty at Mobile Van No.3 of Sakinaka Police Station from 8.00 a.m. to 8.00 p.m., At about 11.00a.m. he reached Sakinaka Police outpost and ACP Pawar, Inspector Thakur were present in thepolice outpost. Around that time one person had come to the police outpost and he informed theincident of firing taken place at Padmavati Road, Powai The policy party, therefore, rushed to thespot immediately in the vehicle of Inspector Thakur and the mobile police van. He saw one personwas lying in injured condition at Padmavati road in front of Maharashtra Gas Agency and his clotheswere socked in blood. The police party picked up the said person and removed him to RajawadiHospital in Mobile van (Maruti Gypsi). He was admitted in the said hospital for treatment.

24. P.W.33-Mohammed Siddique Shaikh Ahmed was a businessman and resident of IIT Market,Vrindavan Society, Powai. He was doing tailoring business and on 16th January, 1997 at about 2.30p.m. he was passing through Padmavati Road, Powai. He was requested by the Police Officer to bewitness to the Police panchanama (Exhibit 151). The spot of the incident was Padmavati Road, infront of Gautam Niwas and it was cri-appeal-864-00 shown by one Pralhad. Another person byname Krishna was another witness. He stated that the police had collected blood stained soil fromthe spot, broken pieces of glass and cartridge cases. There were in all five big cartridge cases andthree small cartridge cases. All these articles were seized by the police and his signatures wereobtained on the labels and the labels were applied on those packets. One bullet mark was fond onthe wall of Gautam Niwas. Blood stained earth and the plain earth were also found in front of L.D.Tailors which was at a distance of 250 ft. from the main spot and in the direction of Dr. DattaSamant's residential house. He identified the spot panchanama at Exhibit 151 to have been drawn inhis presence and signed by him. He further stated that Article 2 collectively 5 empties, Article 3collectively 3 empties and Article 7 metallic sheet which were seized from the spot by the police on16th January, 1997. He identified his signature on Exhibits 152 to 155. In his cross examination hehad stated that there was only one mutton shop in between Vrindavan society and Gautam Niwas onPadmavati Road and there was one chicken shop adjacent to the mutton shop. He further stated thatArticle 7 the mettalic piece was found on the road itself. He did not find any bullet in the wall ofGautam Niwas. He did not know whether there was any metallic piece lying below one of thewindows of Gautam Niwas. He stated that the cartridge cases were cri-appeal-864-00 collected bythe police before he arrived on the scene.



25. The evidence of P.W.1 Shri Arutla Malleshwar Rao, who was the Assistant Chemical Analyzer atthe relevant time is a material witness for the prosecution case. He stated before the trial Court thatit was his duty to examine fire arms and ammunition and other articles received from the PoliceStations in the crimes under investigation or trial and he had examined approximately 5000 firearms during his entire tenure.

He stated that on 20th January, 1997 he had received sixteen sealed envelopes from the SeniorInspector of Police, D.C.P., C.I.D. Unit No.3 and these envelopes were brought to the ForensicLaboratory by Police Sub Inspector Mr. D.M. Deshmukh along with a forwarding letter. He hadexamined the seals of the sixteen packets and found them to be in order. All the sixteen packets wereopened and entries were taken in the B.L. Register.

The Articles removed from the sealed packets were kept in the custody of the Deputy Director ofBallastic Department under lock and key. The envelope Exhibit C contained 8 empties, 5 were of7.65 mm. pistol and the remaining 3 of 9 mm. pistol. (Exhibits 1A to 1E and Exhibit 1F to 1H).

Envelope Exhibit F was containing 4 empties and they were of 9 mm. pistol cri-appeal-864-00empties and 3 of them were having the markings 87 KF and 4th one was having markings 91 KF.These empties were numbered as 2A to 2D.

This witness further stated that Article Nos.Exhibit 1A to 1E were examined by him on 24th January,1997 at his laboratory and they were fired from 7.61 pistol and from one and the same pistol. Thisconclusion was reached after the empties were examined microscopically and were compared.Articles at Exhibit 1F to 1H were also examined by him and the features of the firing pin impressionsin addition to the breech face marks on the said empties tallied amognst themselves showing thatthey were fired from one and the same pistol. He identified all these empties shown to him beforethe Court (envelopes Article 4 and 5). As per the witness during the course of examination he foundthat the characteristics and features of the firing pin impression in addition to the breach face markson the said empties tallied among themselves showing that they were fired from one and the same 9mm pistol. He also stated that metalic lead sheet Article 7 and lead core Articel 8 were examined byhim and he opined that Articel 8 was the deform lead core and it could be the result of rupture of 9mm pistol bullet. The weight of the lead core was about 5.75 crams. After examination of Article 7the the metalic sheet he opined that the dent on the cri-appeal-864-00 sheet could have resulteddue to impact of lead projectile. He had also opined that packet bearing Exhibit 4 one half bush shirtwas taken out from the said packet which was examined by him. He had noticed nine encircled shotholes on the front portion of the shirt and six holes were there on the rear side. Copper was detectedon the periphery of the shot holes. There was no blackening and the powder residue. As per himthese figures indicate that the copper jacketed bullets were fired from beyond powder range of theweapon and for this opinion Copper test was done on the periphery of holes found on the shirt(Article 10). Packet at Exhibit 5 was also opened in the laboratory and one baniyan was taken out(Article 12).

The said baniy6an was examined by him and he had noticed nine shot holes on the front side and sixon the rear side of the baniyan. The copper was detected on the periphery of shot holes found on the



baniyan. There was no blackening and powder residue which indicated that copper jected bulletswere fired from beyond the powder range of the weapon.

On 21st January, 1997 Police Inspector B.M. Deshmukh had brought seven sealed phials forwardedby the Police Surgeon, Mumbai. The witness had checked the seals and found them tallying with thecopy of the impression of the seal on the forwarding letter and thereafter he opined thatcri-appeal-864-00 all the seven files in the Laboratory. The articles found in the files were as under:-

1. One cuprojacketed bullet having rifling marks - Exh. 1

2. One cuprojacketed bullet having rifling marks - Exh.2



5. One deformed cuprojacketed cover of bullet having rifling marks -

Exh. 5

6. One lead core piece - Exh. 6.

7. One lead piece - Exh. 7.

After few days all these articles were examined by him in the laboratory and he concluded thatExhibits 1, 2, 3 and 4 were the fired 7.65 mm caliber pistol bullets. The other three packets bearingNos. BL 54/97 and Exh. 2, 3 and 4 also contain cuprojacketed bullets having rifling marks.

Article 26 was bullet cover which was examined by him and it was taken out from the file Article 25.Similarly, the lead core piece Article 28 was also examined and he concluded that the jacket coverArticle 26, the lead core piece Article 28 and lead piece Article 30 could have resulted due to rupturecri-appeal-864-00 fired 9 mm pistol bullet. He had received thirteen X-rays plates brought by theSenior Police Inspector of DCB, CID Unit-III, Mumbai and after examination of the said plates hecame to the conclusion that opacities in 11 X-ray plates marked as 1A to 1K were consistent with thefiring of 7.65 mm and 9 mm pistol bullets. No opacities were seen on the remaining two plates whichwere numbered as 1L and 1M in the Lab.

On 27th January, 1997 he has received two sealed parcels from the Senior Inspector of Police, DCB,CID, Unit II, Mumbai along with a forwarding letter. He had after verifying the seals opened theparcels and the entries were taken. The parcels were containing the following articles:-

1. Parcel No.1: One 7.65 mm pistol having markings 'made in West Germany, .32 cal. 7.65 automaticpistol'.



2. Parcel No.2: One 9 mm pistol having markings 'made in Spain Kal 9 mm No.3568.

The first pistol was marked as Article 34 and the second pistol was marked as Article 38. Article 34was examined by him on 28th January, 1997. He had taken the barrel washings of the pistol andexamined the cri-appeal-864-00 same. Residue of fired ammunition nitrite was detected in thebarrel washings. It indicated that the weapon was used for firing before it was received in the lab.The weapon was in working condition. He further stated that the test firing was done from the samepistol. Cartridges were used for test firing. He also examined Article 38. Barrel washings were takenand it was found that there was residue of fire ammunition of nitrite in the barrel washings. 9 mmpistol cartridges were test fired successfully from Article 38. His opinion was also sought on thepoint whether the empties of the test fired bullets tallied with empties collected from the scene ofthe offence and, therefore, the empties article 2 collectively were compared with the empties of thetest fired cartridges from 7.65 mm pistol (article 34). He had also test fired five cartridges from thepistol Article 34.

As per him the characteristics firing pin impression on the test fired empties tallied with the breechface marks and firing pin impression on the empties article 2 collectively and they were comparedunder the microscope. After comparison of empties under comparison, he selected best position oftwo empties one each from two sets. Thereafter the photographer Shri V.P.

Waghchaware, P.W.2 was called to take photographs of the two sets under comparison microscope.The witness further states that the empties article 3 collectively were tallied with test fired cartridgesfrom 9 mm pistol cri-appeal-864-00 Article 38. Article Nos. 21 to 24 the cuprojacketed bullets werecompared with the bullets of test fired cartridges from Article 34. However, article 26 deformedbullet cover did not tally with the test fired bullets from the pistol article 38.

The Tata Sumo jeep was examined on 31st January, 1997 and during the examination one 9 mmempty and two cuprojacketed 9 mm pistol bullets were recovered from the said vehicle. One emptywas recovered from beneath the driver's seat. One bullet was recovered from the mat near the leftside rear seat and another bullet was recovered from the rear side of the jeep. The empty wasmarked as Article 43 and the bullets are marked as Articles 44 and 45. He also stated that on the leftside below the window glass one hole was found on the jeep. Three shot holes on the left side backseat were seen and two shot holes one entry hole and another exit hole on the left front seat near thedriver's seat were also noted. This opinion was formed by him because metalic copper was detectedaround the periphery of shot holes and there was no blackening and powder residue. Article 43 waswas the 9 mm pistol cartridge case and Articles 44 and 45 were the fired 9 mm cuprojacketed pistolbullets. After comparison of Article 5 collectively and Article 43 he had come to the conclusion thatthey were cri-appeal-864-00 fired from one and the same pistol. He had also compared the emptiesArticle 3 collectively and concluded that they were fired from same pistol.

The deformed bullet cover Article 26 and the two bullets Article 44 and 45 were also compared byhim and it was found that they were tallying among themselves in respect of number and widths oflands and grooves and they were fired from one and the same 9 mm pistol. However, they did nottally with the test fired bullets from the pistol article 38.



On 1st March, 1997 he had received eight sealed packets from the Senior Inspector of DCP, CID,Unit III, Mumbai and these packets were brought by API Mr. Shevale. On verifying the seals thesepackets were opened by him and necessary entries were taken in the BL Register. These packetswere containing the following articles:-

a) One six chambered .38 revolver wrapped in paper Exhibit AA.

b) Six intact .38" revolver cartridges having head stamp markings KF .380 REVwrapped in paper marked Exh.AB.

c) One 9 mm pistol having magazine having body No.THI 44760 and markingTAURUS PT 99 AF 9 mm para TAURUS INT MFG MIAMI FLA. MADE IN BRAZILwrapped in paper marked Exh. AC.

cri-appeal-864-00

d) One 7.62 mm pistol with magazine having markings .30" Bore wrapped in paper marked ExhAD.

e) Eighty nine (89) intact 9 mm pistol cartridge with different head stamp markings in twocardboard boxed and some are wrapped in paper and all of them wrapped in paper marked Exh.AE.

f) Six intact 7.65 mm pistol cartridges having head stamp markings KF 7.65 mm.

g) Two intact 7.65 mm pistol cartridges having head stamp markings SBP 7.65 mm.

h) Two intact 7.65 mm pistol cartridges having light indentation on the caps and head stampmarkings KF 7.65 mm.

i) One intact 7.65 mm pistol cartridges having head stamp markings REM-UMC .32, 7.65 mm etc.

j) Thirteen intact 7.62 mm bottle ne3cked pistol cartridges in which six are having head stampmarkings38/50, five are 21/RPR and two 270/.32 wrapped in paper marked Exh.AG.

K) Fifty intact .22" rimfire cartridges having head stamp markings E wrapped in paper marked asExh. AH.

He stated that out of the eight packets, he opened the first cri-appeal-864-00 packet, whichcontained six chambered revolver (Article 47). The second packet contained four intact .38 revolvercartridges and another two were the test fired empties and bullets. Two cartridges were test firedfrom the revolver - Article 47 and the intact bullets were Article 50 and empties were Article 51collectively. Packet No.3 contained one 9 mm pistol - Article 54, whereas the fourth packetcontained one 7.62 mm pistol - Article 57. He verified Articles 47, 54 and 57 as the same weaponswhich were opened by him from the respective packets received from the police. The fifth packetcontained, (a) eighty four intact 9 mm pistol cartridges, (b) five 9 mm empties and five



cuprojacketed bullets (one of them was deformed ). He further stated that the five empties and fivebullets were of the captive cartridges test fired in the lab from 9 mm pistol - Article 54, whereas the84 intact cartridges were marked - Article 60, 5 empties were marked - Article 61 and 5 bullets weremarked as Article 62. The sixth packet contained 6 intact 7.65 mm pistol cartridges, five 7.65 mmempties and five 7.65 mm bullets. The five empties and bullets were of the cartridges test fired in thelab. Six intact cartridges - Article 64, five empties - Article 65 and five bullets - Article 66. Theseventh packet contained ten intact 7.62 mm cartridges, three empties and three bullets. Thirteencartridges were received from the police and out of them three were test fired from 7.62 mmcri-appeal-864-00 pistol -Article 57. The eighth packet contained 48 intact .22" rimfire cartridges,two empties and two bullets. Two cartridges were test fired in the lab.

The witness further stated that Article 47 which was the six chambered revolver was kept in thecupboard after removing from the packet received from the police. It was examined by him in thelab and he had taken barrel washings of the said weapon and residue of fired ammunition nitritewas detected in the barrel washings. It indicated that it was used for firing before it was received inthe lab. Similarly, Article 54 -

9 mm pistol, Article 57 - 7.62 mm pistol were also examined by him and barrel washings were taken.The residue of fired ammunition nitrite was detected in barrel washings and, therefore, he opinedthat both these weapons were used for firing before they were received in the lab. He further statedthat Articles 50 and 51 collectively were the two empties and two bullets which were test fired fromArticle 47 and the said revolver was found to be in working condition. Articles 70 and 71 collectivelywere the parts of test fired cartridges from the revolver - Article 57 and these three bullets were outof the intact bullets received by him and marked as Article 69 collectively in the court. Threecartridges were successfully test fired cri-appeal-864-00 from the pistol - Article 57 and it showedthat it was in working condition.

Three empties - Article 3, four empties - Article 5, one empty - Article 43 and five empties - Article61 collectively were shown to him and he stated that they were compared by him under comparisonmicroscope. The test indicated that Article 3 collectively, Article 5 collectively and Article 43 werefired from the pistol - Article 54. He also stated that Articles 44 and 45 bullet tallied amongthemselves and they also tallied with the bullets -

Article 62 collectively in respect of the number and widths of lands and grooves, the direction andthe extent of twist of rifling and the characteristic striations on the land and groove impressions. He,therefore, concluded that Articles 44 and 45 were fired from the pistol - Article 54. He submitted hisreport at Exh. 57 along with the photographs taken by PW 2 - Vasant Waghchaware.

26. PW 1 was cross examined and nothing material was brought out by the defence to contradict hisopinion on the condition of the weapons, bullets fired, comparison of empties and the tallying ofempties with Articles 34 and 54. He explained in his cross-examination that as far as Articles 34 and54 - pistols were concerned, "beyond powder range" means "beyond the distance of one meter". Headmitted that in the case of pistols, the cri-appeal-864-00 cartridges on firing get divided into twoparts, namely, bullet and empty. He also stated that on the basis of number of width of lands and



grooves the particular bullet cannot be connected with the particular weapon. He also agreed thatthe direction and the extent of twist of rifling also cannot conclusively connect to a particular bulletto a particular weapon. He also agreed that what is important is the characteristic striations on theland and grooves impression and striations are longitudinal on every bullet. He also admitted thatthickness of the striations of sample bullet and the test fired bullet must tally in order to come to theconclusion that both the bullets are fired from one and the same weapon. He also agreed that thedistance between each striation on sample bullet and test f

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Vijay Ramchandra Thopate vs D.C.B. Cid on 19 October, 2010

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