Amarjeetsingh Kartarsingh Man vs The State Of Maharashtra
2017 Latest Caselaw 9986 Bom

 jdk                                                1                                              1.crapeal.406.14.j.doc



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
                CRIMINAL APPEAL NO. 406 OF 2014
                              IN
                SESSIONS CASE NO. 1088 OF 2001


Mr. Amarjeetsingh Kartarsingh Man                                                  ]
Age    Years, Hindu, Indian Inhabitant                                             ]
Residing at Poonam Plastic,                                                        ]
Gala No.13/14,                                                                     ]
Rocky Industrial Estate                                                            ]
I.B.Patel Road, Goregaon (East)                                                    ]
Mumbai - 400 063                                                                   ]
(At present lodged at Kolhapur                                                     ]
Central Prison, Kolhapur)                                                          ].. Appellant
                                                                                   (Ori.Accused No.2)

                    Vs.

State of Maharashtra                                                               ]
(Through Goregaon Police Station                                                   ]
Vide Cr.No. 459 of 2001)                                                           ].. Respondent
                                                                                   (Ori. Complainant)

                              ....
Ms. Rohini M. Dandekar Advocate appointed for Appellant
Mr. Arfan Sait A.P.P. for the State
                              ....


                   CORAM : SMT.V.K.TAHILRAMANI ACTING C.J.
                           AND M.S.KARNIK, J.

DATED : DECEMBER 21, 2017

ORAL JUDGMENT [PER SMT. V.K.TAHILRAMANI, ACJ.].:

1                   This appeal is preferred by the appellant - original

                                                                                                    





  jdk                                                2                                              1.crapeal.406.14.j.doc

accused no.2 against the judgment and order dated 30.4.2005

passed by the learned Additional Sessions Judge, Greater

Bombay in Sessions Case No. 108 of 2001. By the said

judgment and order, the appellant along with original accused

no. 1 - Kailashkumar Virbahadur, accused no. 3 Guljarsingh @

Rinku Mahendrasingh Kodiyari, accused no.4 - Pankajkumar

Kisan Kewat and accused no.5 - Leharilal Girdarilal Gujar have

been convicted for the offence under Sections 395, 396 read

with Section 120-B, 302 read with Section 120-B and 364 read

with Section 120-B of IPC. For the offence under Section 395 of

IPC, each of them has been sentenced to R.I. for seven years

and fine of Rs.1000/- in default R.I. for one month. For the

offence under Section 396 read with Section 120-B of IPC, each

of them has been sentenced to R.I. for ten years and fine of Rs.

2,000/- each i/d R.I. for two months. For the offence under

Section 302 read with Section 120-B of IPC, each of them has

been sentenced to R.I. for life and fine of Rs.3000/- i/d R.I. for

three months. All the substantive sentences were directed to

run concurrently.

2 The prosecution case briefly stated, is as under:

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(i)                 One Dhaglaram Chaudhari and his brother Jebaram

Chaudhari (both deceased) were partners in                                                             Poonam Plastics

factory. This factory was situated at Rocky Industrial Estate, I.V.

Patel Road, Goregaon East, Mumbai. Aaslaram Chaudhari

(deceased) was the brother-in-law of Dhaglaram. Aaslaram was

working in Poonam Plastics factory. One Madhusing (deceased)

was the manager of Poonam Plastics. Kanaram Chaudhari,

Tulsaram Chaudhari, Pramod Bihari and Bhairavnath Chaudhari

(all deceased) were the employees of Poonam Plastics factory.

Bhairavnath was working as a cook in the factory and other

three persons i.e. Kanaram, Tulsaram and Pramod were

employed in production work of the said factory. The factory

used to manufacture plastic bangles. There are 8 deceased in

the present case i.e. Dhaglaram, his brother Jebaram,

Dhaglaram's brother-in-law Aaslaram, Madhusing, Kanaram,

Tulsaram, Bhairavnath and Promod Bihari. Dhaglaram was also

one of partners of Parmeshwari Bangles. The other partner of

Parmeshwari Bangles was P.W. 1 Pukhraj. As both P.W.1

Pukhraj and deceased Dhaglaram were partners in

Parmeshwari Bangles, they were well-known to one another.

  jdk                                                4                                              1.crapeal.406.14.j.doc

Parmeshwari Bangles                                    was situated two shops away from

Poonam Plastics.                         The bangle factory of Parmeshwari Bangles

was situated at the distance of about 30 to 40 ft. away from

Poonam Plastics. P.W. 12 Smt. Pyaridevi Chaudhari was the

wife of deceased Jebaram. At the time of the incident, Jebaram

was residing with his wife Pyaridevi at Peruwal, Aarey Road,

Goregaon, Mumbai. Although the workers who were working in

Poonam Plastics used to reside in factory premises, the

manufacturing work was going on on the ground floor and the

workers were residing on the mezzanine floor. Deceased

Dhagalaram used to come to his factory at about 8.30 a.m. and

used to return back at about 8.30 p.m. The factory i.e. Poonam

Plastics was running in 2 shifts and there were 4 to 5 workers in

each shift. As P.W. 1 Pukhraj was the partner of Dhaglaram in

Parmeshwari Bangles, he used to often visit the factory of

deceased Dhagalaram, which factory was situated just two

shops away from his own factory. As P.W. 1 Pukhraj used to

frequently visit the factory of Dhaglaram, he knew the manager

of the factory Madhusing as well as the employees working in

the factory.

  jdk                                                5                                              1.crapeal.406.14.j.doc

(ii)                On 9/8/2001 Pukhraj came to his factory Parmeshwari

Bangles at about 9 a.m.. After sometime, one of his workers

informed him that there is nobody in the factory of Dhaglaram.

Pukhraj immediately made a phone call to the house of

Dhaglaram. On making enquiry he learnt that Dhaglaram had

left in the morning to go to the factory. Then P.W. 1 went to the

factory of Dhaglaram. He noticed that the light of the factory

was off. On entering the factory he noticed one person

sleeping towards backside of the office of the factory. The

person was covered with bed-sheet. P.W. 1 removed the bed-

sheet and noticed that the sleeping person was Dhaglaram.

Saffron rope was tied around his neck and both his hands were

tied by string (suthali). Pukhraj then made a phone call to

Hariramji, brother-in-law of Dhaglaram. As he could not contact

him, he contacted Mohanbhai who is the nephew of Dhaglaram.

Within 5 to 10 minutes Mohanbhai and Hariramji came to the

factory of Dhaglaram. They noticed articles scattered on the

floor of the office. Safe (Tijori) of the office was found open.

Cash bag was lying on the table. Chain of the cash bag was

open. One Dr. Rohekar was summoned. He examined

Dhaglaram and declared him dead. By that time, police also

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reached on the spot. When they checked the factory, they

found in all six dead bodies under 6 drums. Dead bodies of the

six persons found in six drums were Madhusingh-Manager of the

factory, Aaslaram Chaudhari- brother-in-law of Dhaglaram and

one of the workers of the factory, Jebaram Chaudhari - brother-

in-law of Dhaglaram, Kanaram Chaudhari, Tulsaram Chaudhari,

Bhairavnath Chaudhari who were all workers in the factory.

One more dead body of employee Pramod Bihari was found

near the inner-side wall of the factory. Thus in all 8 dead bodies

were found in the premises of the factory. Neck of all these

dead bodies was tied with rope and their hands were also found

tied with rope. P.W.1 Pukhraj who was a regular visitor to

Poonam Plastics noticed that four regular workers who used to

work in the factory were absent i.e. original accused No. 1-

Kailas Nepali, original accused No. 2-Amarjeet Singh i.e. the

appellant herein, original accused No. 4 Pankaj and original

accused No. 5 Leharilal. P.W. 1 Pukhraj then lodged FIR against

the four workers who were not found present in the factory.

Thereafter, the investigation commenced. The eight dead

bodies were sent for post-mortem.

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(iii)               P.W. 15 Dr. Shinde performed post mortem on all the

dead bodies. In his opinion, in all cases the cause of death was

due to strangulation. According to him, the external injuries on

the neck i.e. ligature mark over neck below thyroid cartilage

horizontal, coupled with the internal injury was sufficient in

ordinary course of nature to cause death. According to him,

external injuries found on the bodies of all the persons are

possible by tightening rope around the neck.

(iv) During the course of investigation it was revealed that

original accused No. 6 Gulam was working with P.W. 16

Raghunath. Accused No. 6 Gulam used to stay at the shop of

P.W. 16 at night. Two friends of accused No. 6 Gulam used to

visit the shop regularly i.e. appellant - Amarjeet Singh and

accused No. 3 Guljarsingh, hence, P.W. 16 Raghunath knew

them. On 9/8/2001 i.e. on the day of incident at about 9.30

a.m. both appellant - Amarjeet Singh and accused No. 3

Guljarsingh came to the shop of P.W. 16 and spoke with Gulam,

then they handed over a cheque to him and immediately left

the shop of P.W. 16 Raghunath. After sometime, Accused No. 6

Gulam left the shop informing P.W.16 Raghunath that he will

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come back within a short time. Within 10 to 15 minutes Gulam

returned back. At about 11.30 a.m. again accused No. 2

(appellant) and accused No. 3 came in front of the shop. Gulam

then went out of the shop and handed over cash collected from

the bank by him. Then, accused No. 2 (appellant) and accused

No. 3 both left the place. Thereafter at about 12.45 to 1 p.m.

accused No. 6 Gulam left the shop as usual to have his meal,

but thereafter he did not return to the shop.

(v) During the course of investigation, accused No. 2

Amarjeet Singh, accused No. 3 Guljarsingh and accused No. 4

Pankaj came to be arrested by Crime Branch. They were taken

charge of by Investigating Officer P.W. 24 PI Mali on 11/8/2001

at 4 p.m. When Crime Branch officers had arrested these three

accused cash of Rs. 22,000/-, one air gun and one knife were

found with them. After completion of investigation, charge-

sheet came to be filed.

3 Charge came to be framed against the appellant and

five other accused i.e. original accused No. 1, and 3 to 6. The

charge was framed under Section 120-B of IPC, under Section

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395 r/w. Section 120-B of IPC, under Section 396 r/w. 120-B of

IPC, under Section 302 r/w. 120-B of IPC or in the alternative

under Section 302 r/w Section 34 of IPC, under Section 364 r/w

Section 120-B of IPC or in the alternative under Section 364 r/w

Section 34 of IPC and under Section 412 of IPC. All the accused

pleaded not guilty to the said charge and claimed to be tried.

Their defence is that of total denial and false implication. After

going through the evidence adduced in this case, the learned

Sessions Judge convicted and sentenced the appellant along

with original accused Nos. 1, 3, 4 and 5as stated in paragraph-1

above, hence, this appeal. It may be stated here that accused

nos.1 to 6 were acquitted of the offence under Section 364 read

with Section 120-B of IPC or in the alternative under Section 364

read with Section 34 of IPC.

4 It may further be stated here that original accused

nos. 3 to 5 have preferred Criminal Appeal Nos. 1124 of 2006,

1127 of 2006 and 499 of 2007 respectively against their

conviction and sentence. This Court (Coram: Smt.

V.K.Tahilramani and Smt. Sadhana S.Jadhav, JJ) by judgment

and order dated 11.2.2013, dismissed the said appeals.

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5                   We have heard the learned Advocate appointed for

the appellant and the learned A.P.P. for the State. After giving

our anxious consideration to the facts and circumstances of the

case, arguments advanced by the learned Advocates for the

parties, the judgment delivered by the learned Sessions Judge

and the evidence on record, for the reasons stated below, we

are of the opinion that the present appellant along with other

accused persons i.e. original accused nos. 3 to 5 had entered

into a criminal conspiracy to commit dacoity and murder of the

owners and workers of Poonam Plastics and thereafter, they

executed their plan.

6 Conviction of the appellant is mainly based on the

evidence of P.W. 4 Mannaram who was working in Poonam

Plastics. As he was working in the factory, he knew the owner

and all the workers working in the factory. He has stated that at

the time of incident about 12 workers were working in Poonam

Plastics and they were all residing in the said factory including

this witness. According to him, original accused No. 1

Kailashkumar, appellant - Amarjeet Singh, accused No. 4 Pankaj

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and accused No. 5 Leharilal were working in the factory. This

witness knew the accused No. 3 Guljarsingh because he used to

visit Poonam Plastic factory to meet his friend i.e. appellant -

Amarjeet Singh. P.W.4 Mannaram stated that on 8/8/2001 at

about 11 p.m. he went to sleep. When he woke up at about 12

mid night to answer call of nature, he noticed that Madhusingh

i.e. Manager was sleeping by the side of office. The cook

Bhairavnath was found sleeping in the kitchen and alongside

Bhairavnath accused No. 5 Lehrilal was found sleeping.

Thereafter, at about 2 a.m. again this witness woke up to

answer call of nature. At that time, he did not see Aaslaram,

Tulsaram and Madhusingh. When he entered the kitchen, he

noticed that cook Bhairavnath was not found present but

accused No. 5 Leharilal was sleeping in the kitchen. He noticed

appellant - Amarjeet coming from his front side. When he

enquired with appellant - Amarjeet where the workers were? He

said "sab logonko marke Bhaga diya". At that time, this witness

noticed that accused No. 3 Guljar was standing by the side of

appellant - Amarjeet. This witness again went to mezzanine

floor and went to sleep. At about 5 a.m. when this witness woke

up, he saw accused No. 4 Pankaj had come back with milk and

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he informed appellant - Amarjeet that Jebaram Seth is coming.

Accused No. 5 Leharilal prepared tea. This witness i.e. P.W. 4

Mannaram had tea. After taking tea he went again on the

mezzanine floor. Appellant - Amarjeet Singh followed him upto

mezzanine floor and asked him not to come down till 10 a.m. as

something is going to happen with Seth Dhaglaram. Then

accused No. 5 sat by the side of P.W.4 Mannaram. P.W. 4

asked accused No. 5 Leharilal what happened but he did not

inform him anything. After sometime, accused No. 3

Guljarsingh came up to mezzanine floor. He asked accused No.

5 Leharilal what he is doing on the mezzanine floor as he

Guljarsingh was searching for Leharilal. Thereafter Guljarsingh

and Leharilal went down from the mezzanine floor. After

sometime, P.W. 4 Mannaram heard the noise of Jebaram and

then he heard sound of falling down of iron and plastic. He also

heard Jebaram's shouts. On hearing sounds, Mannaram came

down, that time he noticed appellant - Amarjeet felling down

Jebaram. Accused No. 3 Guljarsingh pressed hands of Jebaram

on his chest. Accused No. 4 Pankaj caught hold of legs of

Jebaram and appellant - Amarjeet tied rope around the neck of

Jebaram. Jebaram was trying to rescue himself but Accused

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No.1 Kailash, appellant - Amarjeet, Accused No. 3 Guljar and

Accused No. 4 Pankaj lifted Jebaram and put him in the plastic

drum by the side of machine. They put raw material on the

body of Jebaram in that plastic drum. That time appellant -

Amarjeet on seeing P.W. 4 Mannaram threatened him that why

he came down and they will kill him. Hence, P.W. 4 Mannaram

immediately went to mezzanine floor. After sometime, this

witness came down. That time he saw his employer Dhaglaram

lying near the office. He found that none of the workers working

in the night shift i.e. accused No. 1 Kailash, appellant -

Amarjeet and accused No. 3 Guljar were found present. Within

short time, police arrived and they found 8 dead bodies in the

factory. Pieces of rope was tied on the neck of each dead body.

Not only Dhaglaram was found dead in the incident but his

brother Jebaram was also found dead in the factory along with 6

employees of the factory.

7 In order to show that there was a conspiracy between

the appellant and accused No. 3 Guljarsingh and

accused No. 4 Pankaj, the prosecution has relied on the

evidence of P.W. 12. P.W. 12 Pyaridevi Chaudhari was the wife

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of deceased Jebaram. She has stated that her husband was

preparing bangles with the help of workers in Poonam Plastics

and her brother-in-law deceased Dhaglaram was handling

finance of the factory. Out of the workers working in the factory

she knows two workers that is Pankaj-accused No. 4 and

Guljarsingh accused No. 3. She knew Pankaj because he used

to deliver milk everyday at 6 a.m. On the day of the incident,

he had come at 5.30 a.m. along with Accused No. 3 Guljarsingh.

At that time, accused No. 4 Pankaj asked her to send her

husband Jebaram to the factory as goods had come from

outside and her husband Jebaram was required to take delivery

of the goods. Hence P.W. 12 woke up her husband and

informed him that Pankaj was calling him to the factory to take

delivery of the goods. Her husband Jebaram then woke up,

wore his clothes and accompanied both accused No. 4 Pankaj

and accused No. 3 Guljar to Poonam Plastic company. Distance

between the house of Jebaram and Poonam Plastic factory was

about one kilometer. On the same day again at 9 a.m. accused

No. 3 Guljar came to her house and told her that her husband

had sent him to bring camera but she told them that she did

not have camera with her. Pyaridevi asked Gulzar where her

jdk 15 1.crapeal.406.14.j.doc

husband was, whereupon Gulzar replied that he is busy in a

meeting in a hotel. Thereafter Gulzar went away. Thus

evidence of this witness and PW 4 Mannaram clearly shows that

the appellant and accused Nos. 3 and 4 were involved in a

conspiracy to murder all the persons and pursuant to the

conspiracy they came to the house of Jebaram and took him

away to the factory where Jebaram came to be murdered along

with seven others. We would also like to advert to the evidence

of PW 4 Mannaram, who has stated that after taking tea when

he went to the Mezzanine floor, the appellant followed him up to

the mezzanine floor and told Mannaram not to come down till

10 a.m. as something is going to happen with Seth Dhaglaram.

Thus, the evidence of Pyaridevi and Mannaram together clearly

shows the conspiracy between the appellant and accused nos.3

and 4.

8 Appellant - Amarjeet Singh, accused No. 3 Guljarsingh

and accused No. 4 Pankaj came to be arrested by Crime Branch.

At the time of arrest, P.W. 11 Prashant Shinde acted as a panch

in relation to the arrest panchanama of these three accused.

He has stated that when                                          appellant - Amarjeet Singh was

searched, they found one cheque book                                                           of Bank of Baroda,



                                                                                                    





  jdk                                                16                                              1.crapeal.406.14.j.doc

Goregaon East Branch containing 21 cheques. Out of them two

cheques were found signed and rest were found blank. He also

noticed one air gun and one knife. In the right side pant pocket

of Amarjeet Singh they recovered 4 pieces of rope (suthali)

each having 3 ft. length. Bundle of cash amount of Rs. 10,000/-

i.e. 100 G.C. Notes of Rs. 100 each having label of Bank of

Baroda was also found with him. Thereafter, accused No. 3

Guljarsingh was searched by the police and they recovered one

bundle of 100 G.C. Notes of Rs. 10/- each alongwith recount slip

of Bank of Baroda and some G.C. Notes of Rs. 500/- and some

loose notes of Rs. 100/-, total Rs. 2800/-. On search of accused

No. 4 Pankaj, they found one bundle containing 100 G.C. notes

of Rs. 10/- having recount slip of Bank of Baroda and 86 loose

G.C. Notes of Rs. 100/- each. As stated earlier, four pieces of

rope (suthali) was found in the pant pocket of the appellant and

it is to be noted that all the deceased were strangulated with

similar Suthali.

9 One important piece of circumstance is that the

clothes of all the accused persons including the appellant came

to be seized and were sent to CA. The rope which was found

jdk 17 1.crapeal.406.14.j.doc

around the neck of all the deceased persons, the rope with

which their hands were tied, were also sent to CA. That CA

report Exh. 83 shows that jute fiber found on the clothes of all

the accused persons tallied with the jute fibers with which hands

and neck of the deceased were tied.

10 P.W. 8 Mrs. Desai was cashier in the Bank of Baroda.

She has stated that on 9/8/2001 she was working on cash

counter making payment to customers. At 10.30 a.m. accused

No. 6 Gulam gave a cheque of Rs. 30,000/- issued by the

partners of Poonam Plastics. She obtained his signature and

then made payment of Rs. 30,000/- to him. She has identified

the accused as the very same person who had come to the

bank to encash cheque of Rs. 30,000/- and she has identified

the currency notes as they bear recount slips of the bank and

also because recount slips bear her signatures. Thus it is seen

that the notes found with the appellant and accused Nos. 3 and

4 were same notes which were withdrawn by accused No. 6.

These notes withdrawn on 9/8/2001 by accused No. 6 Gulam

were found in possession of the appellant and accused No. 3

Guljarsingh and accused No. 4 Pankaj and they had been

jdk 18 1.crapeal.406.14.j.doc

identified by the cashier of the bank P.W. 8 Mrs. Desai. Thus

finding of these notes with the appellant, accused Nos. 3 and 4

shows that there was conspiracy between the appellant and

accused Nos. 3 and 4. It is pertinent to note that 8 persons

were found dead in Poonam Plastic factory and the safe was

found open and the cash bag was found lying open on the table.

Thereafter the appellant and accused Nos. 1, 3, 4 and 5 were

not seen in the factory. This shows that all these accused had

entered into a conspiracy to commit dacoity and murder of the

owners and employees of Poonam Plastics.

11 P.W. 14 Khemaram Vyas was the owner of Janta Guest

House. He has stated that on 9/8/2001 at about 10.15 p.m. two

customers i.e. appellant - Amarjeet Singh and accused No. 4

Pankaj came to his lodge. They took a room on rent. Next day

evening both of them again came back and took the said room

for 3 days and paid him the amount. Thereafter, police came

there and arrested them. This shows that soonafter the

incident, the appellant and accused no.4 ran away from the

place where they were working and staying i.e. Poonam Plastics

and checked into a hotel. Both the appellant and accused no.4

jdk 19 1.crapeal.406.14.j.doc

were working and residing in Poonam Plastics. The fact that

they ran away and later on checked into a hotel shows that

they were part of a criminal conspiracy. Their conduct also

shows mens rea on their part, otherwise there was no reason for

both of them to run away from the factory where they were

working and residing and check into a hotel on the day of the

incident.

12 Looking to the evidence on record, we find that there

is sufficient evidence on record to show that the appellant

committed dacoity in Poonam Plastic factory and that the

appellant alongwith other accused persons entered into a

criminal conspiracy to commit dacoity in Poonam Plastics and

to murder the owners and employees of Poonam Plastics. Thus,

we find no merit in this appeal. The appeal is dismissed.

            M.S.KARNIK, J.                                                                    ACTING CHIEF JUSTICE
kandarkar