ANAND, J. - (1.) Twelve accused persons were tried for offences under Sections 302 307/149, 324, 147, 148 and Section 3 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as Rs. TADA') by the learned Designated Judge, Pune. Out of the said twelve accused, 6 accused were acquitted of all the charges while the five appellants herein, namely. Bonkya alias Bharat Shivaji Mane (A-5), Mandu Baliba Dombe (A-8), Ashok Baloba Dombe (A-9), Ranjar Bhausaheb Dombe (A-10) and Kaka alias Pandurang Baloba Dombe (A-11) were convicted for offences under Sections 302/307/149, IPC and Section 3 of TADA and sentenced to suffer life imprisonment and to pay a fine of Rs. 5,000/- each for the offence under Sections 302/149 IPC; 10 years RI and fine of Rs.5,000/- each for the offence under Section 307/149, IPC; 2 years RI for the offence under Sections 324/149 IPC and life imprisonment and fine of Rs.5,000/- each for the offence under Section 3 of TADA. In default of payment of fine on each of the counts, the appellants were to undergo further RI for two years each. The substantive sentences of imprisonment were however directed to run concurrently. One accused died during the pendency of the trial. Through this appeal under Section 19 of TADA, the appellants have called in question their conviction and sentence. For the sake of convenience the accused shall be referred to hereinafter by the number assigned to them in the Trial Court judgment as accused i.e. (A-5, A-8, A-10, etc.).
(2.) According to the prosecution case on 11th August, 1990 at about 3.00 p.m. Anna Shetty Band Patte, Mukesh, Ramesh and Prakash Band Patte had gone to the Vrindavan video parlour for watching a movie. The accused A-6, A-10 and A-11 along with one other person were also present at the video parlour. There was an altercation between the accused and the complainant party when the leg of Kaka Dombe (A-11) dashed against the leg of Anna Shetty Band Patte P.W. Both the prosecution witnesses as well as the accused party left the video parlour threatening, each other. The complainant party went towards Jagdamba Hotel owned by Waman Band Patte PW. At that time Baban Karpe, Bajrang Band Patte, Sanjay Mane, Ramesh Pawar were also present near the hotel. At about 4.00 p.m., the appellants and other accused persons allegedly armed with swords, satturs and sticks arrived there in two auto rickshaws and one jeep. Out of the accused A-5, A-6, A-8, A-10 and A-11 were carrying swords while A-7 and A-9 had satturs and the remaining accused were armed with sticks. On the arrival of accused party Anna Shetty ran away. Appellants A-5, A-10 and A-11 thereafter assaulted Bajrang Band Patte (PW-14) on his head in front of the hotel. They also assaulted Baban Karpe (PW-9) and Popat deceased, who had run away to the Math, after chasing them in the auto rickshaws and the jeep. It is alleged that A-5, A-10 and A-11 assaulted Popat deceased with the swords on his head and thigh and when Baban tried to intervene he was also assaulted and he received a blow with the sattur near his knee. He ran away to conceal himself. Bajrang (PW-14) was taken to the hospital by Waman PW-15, Ramesh PW-11 and Prakash PW-2, whereas Popat deceased who was seriously injured and had fallen down unconscious after receipt of the injuries was removed to the hospital by the police when it arrived at the spot a little later. All the injured persons were admitted to the hospital. While receiving the treatment, Popat succumbed to his injuries. On receipt of information. Asstt. Police Inspector Joshi arrived at the hospital and Baban Karpe PW-9 narrated the occurrence to him which was reduced into writing. On the basis of the said report, an FIR for offences under Sections 302/307/149/147/148, IPC was registered vide CR No.101 of 1990 at about 6.00 p.m. The inquest on the dead body of Popat was conducted and the body was sent for post-mortem examination.
(3.) Bajrang PW-14 regained consciousness during the night intervening 11th and 12th August, 1990 and made a statement to the police in respect of the incident which took place in front of Jagdamba hotel and on the basis of that statement, CR No. 102/90 was registered. The jeep allegedly used by the accused party was later found in front of the house of accused Baloba Dombe, A-1 (who died subsequently). One sword, stained with blood and two blood stained sticks were recovered from the said jeep. An auto-rickshaw bearing registration No. MWQ-5624 belonging to Manik Bhende-Gavali was found abandoned in a damaged condition with broken glasses. It was also taken into possession vide a panchnama. The accused were searched for but could not be traced. They were subsequently arrested on different dates. On a disclosure statement made by A-11 before the police and the panches under Section 27 of the Evidence Act and on his pointing out a sword was recovered from the field at Korti, where it lay buried. A-10 also made a disclosure statement under Section 27 of the Evidence Act to the effect that he had buried a sword behind Yamai Tukai temple and could get it recovered. On the pointing out by A-10, the said sword was also recovered and taken into possession through a panchnama. During the investigation, an identification parade was not conducted through the Executive Magistrate, PW-32 when Baban Karpe (PW-9) and other prosecution witnesses identified the assailants. Samples of blood of the accused were collected for ascertaining their blood groups and sent for chemical analysis. The blood samples of Bajrang (PW-14) and Baban Karpe (PW-9) were similarly collected. The blood stained clothes of the deceased and the injured persons as also the swords were sent to the chemical examiner for analysis. After completion of the investigation, two charge-sheets arising out of crime No.101/90 and crime No.102/90 were filed before the Designated Court. During the pendency of the two charge-sheets the Addl. Public Prosecutor through an application, Ex.P-35, requested the Court for holding trial in respect of both the chargesheets together, which application was allowed by the Designated Court vide order dated 5-12-1992 and that is how both the cases were tried together by virtue of the provisions of Section 220 (1), Cr. P.C. as the series of acts in both the cases were so inter-connected as to form one transaction. At the trial the prosecution alleged that the accused party with an intent to commit terror in the Wadar community had committed the murder of Popat and injured PW-9 and PW-14, by using lethal weapons and had thereby committed terror in the Wadar community and, thus, committed an offence under Section 3 of TADA, besides the other offences as already noticed. Baloba (A-1) died during the pendency of the trial and therefore, the proceedings against him abated. The plea of the remaining accused in their statements under Section 313, Cr.P.C. was one of total denial and also implication. According to A-2, A-3, A-5, A-6 and A-7 they had been identified by PW-9, during the identification parade, at the instance of the police. A-4 alleged false implication at the instance of PW-15 Waman while A-8 alleged false implication at the hands of the police with a view to pressurise him to withdraw a complaint concerning the murder of his brother and 5 others allegedly committed by the police. A-9 also put forward a similar defence, while A-10 alleged that the police had instituted a false case against him at the instance of Narayan Dhotare, according to A-11, also the witnesses had deposed falsely against him at the instance of Narayan Dhotare. The learned judge of the Designated Court acquitted A-2, A-3, A-4, A-6, A-7 and A-12 of the offences charged against them, apparently influenced by the lack of identification of these accused persons by the prosecution witnesses at the identification parade conducted by the Executive Magistrate. The appellants, however, were convicted and sentenced in the manner as already noticed.;