V. Srikrishna Yeshwant Pashilkar (A-110): Vs.
EmailAppeal:
Petitioner: V. Srikrishna Yeshwant Pashilkar (A-110):
Respondent:
Apeal:
Judges: P. Sathasivam & B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Section 3(3) – Conviction under – Bombay Blast case – A-110, a member of police party – Charges of allowing illegal transportation of arms and ammunitions for committing terrorist act for illegal gratification – Conviction under Section 3(3) of TADA – No confessional statement made by appellant – Whether a ground to acquit the accused – Confessional statement of A-30 though not taking appellant’s name, yet confirming version of prosecution about interception of truck by police and its release on taking 5 bricks of silver – Plea of absence from that place, not proved – Conviction under Section 3(3), holding that even though appellant’s superior A116 and not appellant was responsible for permitting transportation of goods, he could have reported the matter to a senior against A-116. Not reporting shows connivance. Held sentence upheld.
Section 3(3) – Conviction under – Bombay Blast case – A-110, a member of police party – Charges of allowing illegal transportation of arms and ammunitions for committing terrorist act for illegal gratification – Conviction under Section 3(3) of TADA – No confessional statement made by appellant – Whether a ground to acquit the accused – Confessional statement of A-30 though not taking appellant’s name, yet confirming version of prosecution about interception of truck by police and its release on taking 5 bricks of silver – Plea of absence from that place, not proved – Conviction under Section 3(3), holding that even though appellant’s superior A116 and not appellant was responsible for permitting transportation of goods, he could have reported the matter to a senior against A-116. Not reporting shows connivance. Held sentence upheld.
Recovery of arms ammunition – Material when opened in Court, found wrapped with a newspaper bearing date subsequent to the date of recovery i.e. 08.04.1993 – Explanation by PW.586 that as contraband were re-opened for being sent to FSL, remaining contraband might have been re-wrapped in newspaper dt. 08.04.1993 – No possibility of tampering alleged. Held contention is meritless.
Held:
The learned Designated Court after appreciating the evidence came to the conclusion that landing of contraband material took place at Dighi Jetty on 9.1.1993 during night time and goods were transported from said Jetty in two trucks. The said contraband contained arms and ammunition, AK-56 rifles and bullets etc. The police party of Shrivardhan had intercepted the convoy carrying said contraband at Gondghar Phata. Furthermore it was held that confessions of co-accused and Dilip Bhiku Pansare (PW-97) reveal the identity and involvement of the appellant (A-110) in the landing episode. (Para 316)
However, it was further held that the appellant (A-110) was member of police party headed by his superior Vijay Krishnaji Patil (A-116) and though the appellant (A-110) could not be said to be responsible for taking decision of permitting further transportation of said goods, however taking into account the fact that he had not reported about Vijay Krishnaji Patil (A-116) to higher officials, reveals that he had also connived with Vijay Krishnaji Patil (A-116) in performing said acts. (Para 316.1.)
PW-586 deposed that as some of the samples had to be taken out of the recovered material and sent for FSL report, it was re-opened on 18.4.1993 and samples had been sent for FSL. Thus, the contraband materials recovered on the disclosure statement of these appellants were further wrapped in newspapers. So, it was quite possible that newspapers upto 18.4.1993 could have been used. None of the appellants had put any further question on possibility of tampering of the evidence to the said witness (PW- 586), though he proved the letter with which the contraband materials were sent for FSL and the FSL report itself, but none of the appellants put any question in his cross-examination on the possibility of tampering of the material etc. He was the only person who could have explained all the questions raised by the appellants before us. (Para 318.1.)
Appeal against acquittal by State – Acquittal of the charge of larger conspiracy – Limitation of court to interfere. Held Court should bear in mind the presumption of innocence. Acquittal bolsters the presumption of innocence. Interference is needed only when there are good reasons for it. State of Rajasthan v. Darshan Singh’s case referred and followed. No reason to interfere with the reasoning of Designated Court.
Cases Reffered:
Case Referred :
1. State of Rajasthan v. Darshan Singh @ Darshan Lal [JT 2012 (5) SC 229] (Para 320)
1. State of Rajasthan v. Darshan Singh @ Darshan Lal [JT 2012 (5) SC 229] (Para 320)
JUDGEMENT:
Dr. B.S. Chauhan, J.
307. Appellant (A-110) was further charged for allowing the accused persons to smuggle and transport arms and ammunition into India for the purpose of committing terrorist acts, by illegal omission to thoroughly check the motor lorries carrying arms, ammunition and other contraband though intercepted by them on the night of 9.1.1993 at Gondghar Phata. He was further charged with failing to seize the aforesaid motor truck and its contents in lieu of bribe of Rs.7 lakhs agreed by all of them on negotiation with the co-accused Uttam Potdar (A-30), Custom Inspector Gurav (A-82), thereby, facilitating the commission of terrorist activities on 12.3.1993. Thus, charged under Section 3(3) TADA.
308. He was awarded sentence of 6 years under Section 3(3) TADA and a fine of Rs.25,000/-, in default of payment of fine, to suffer further RI of 6 months. He has already served more than 3 years.
309. Ms. Farhana Shah, learned counsel appearing for the appellant has submitted that the appellant (A-110) has not made any confession and reliance on the confessional statement of the co-accused by the learned Designated Court was erroneous. Thus, the appeal deserves to be allowed.
310. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that Uttam Shantaram Potdar (A-30) established the presence of the appellant (A-110) during the incident of interception of trucks at Gondghar Phata therefore, the appellant was involved in allowing arms and ammunition to be transported into India. Thus, the appeal deserves to be dismissed.
311. We have considered the rival submissions made by learned counsel for the parties and perused the record.
312. Evidence against the appellant (A-110):
(a) Confessional statement of Uttam Potdar (A-30)
(b) Deposition of Dilip Pansare (PW-97)
(c) Deposition of other witnesses
313. Confessional Statement of Uttam Potdar (A-30):
In his confessional statement, he stated that as the smuggling party did not have money to pay to the police when they were intercepted while smuggling the contraband, five silver bricks from the first truck were given to the appellant (A-110) who was specifically named by the co-accused (A-30).
313.1 In the confessional statements of co-accused Dawood Taklya Mohammed Phanse (A-14), Jaywant Keshav Gurav (A-82), Salim Kutta (A-134) and Mechanic Chacha (A-136) though did not name the appellant (A-110) specifically but they corroborated the version of the prosecution of interception by the police of Shrivardhan Police Station headed by Vijay Krishnaji Patil (A- 116) and alongwith silver bricks, some wooden boxes were also in the truck.
314. Deposition of Dilip Pansare (PW-97):
In his deposition he revealed that he was working as a mechanic in the State Road Transport Corporation and was a childhood friend of Uttam Potdar (A-30) who used to help him in transporting and smuggling the goods alongwith others. He had brought the truck for transporting the smuggled contraband on 9.1.1993 and when they were bringing the contraband in two trucks one of them was being driven by him. They were intercepted by the police of Shrivardhan Police Station at Gondghar Phata junction. He (PW 97) stopped the vehicle on getting the signals by the police. The appellant (A-110) got down from the jeep and he heard the appellant (A-110) shouting to take out the key of the said vehicle and bring the driver to him. He (A- 110) came near the truck and took away the keys of the first truck. Other police men started shouting that there was silver in the truck. Mechanic Chacha (A-136), Shabir Kadri and Uttam Potdar (A-30) negotiated with the officer Vijay Krishnaji Patil (A-116) for about half an hour. Gurav, the Customs Officer (A-82) also arrived and after negotiating for about half an hour, five silver bricks were taken from the truck in the police jeep by Hawaldar and the key of the truck was returned to the said witness (PW. 97).
315. Sujjat Peoplankar (PW-158), Bhaskar Boda (PW-159), Gopichand Sathnag (PW-160), Tukaram Kalankar (PW-161), Ganpat Giri (PW-162), Anant Lad (PW-166) and Dhiryasheel Koltharkar (PW-167) have deposed that the defence taken by Vijay Krishnaji Patil (A-116) and the appellant (A-110) that they had gone to a village for patrolling was false as none of them had reached that village on that day.
316. The learned Designated Court after appreciating the evidence came to the conclusion that landing of contraband material took place at Dighi Jetty on 9.1.1993 during night time and goods were transported from said Jetty in two trucks. The said contraband contained arms and ammunition, AK-56 rifles and bullets etc. The police party of Shrivardhan had intercepted the convoy carrying said contraband at Gondghar Phata. Furthermore it was held that confessions of co-accused and Dilip Bhiku Pansare (PW-97) reveal the identity and involvement of the appellant (A- 110) in the landing episode.
316.1. However, it was further held that the appellant (A-110) was member of police party headed by his superior Vijay Krishnaji Patil (A-116) and though the appellant (A-110) could not be said to be responsible for taking decision of permitting further transportation of said goods, however taking into account the fact that he had not reported about Vijay Krishnaji Patil (A-116) to higher officials, reveals that he had also connived with Vijay Krishnaji Patil (A-116) in performing said acts.
317. We find no evidence on record requiring interference with the judgment of the learned Designated Court. The appeal with reference to appellant (A-110) lacks merit and is accordingly dismissed.
318. So far as the serious objection that when the contraband material, arms and ammunition recovered at the disclosure statements of the appellants were opened in the court the material they were wrapped were subsequent to the date of recovery i.e. 8.4.1993. This has been explained fully in the court by Pratap Dighavkar (PW-586).
318.1. He deposed that as some of the samples had to be taken out of the recovered material and sent for FSL report, it was re-opened on 18.4.1993 and samples had been sent for FSL. Thus, the contraband materials recovered on the disclosure statement of these appellants were further wrapped in newspapers. So, it was quite possible that newspapers upto 18.4.1993 could have been used. None of the appellants had put any further question on possibility of tampering of the evidence to the said witness (PW- 586), though he proved the letter with which the contraband materials were sent for FSL and the FSL report itself, but none of the appellants put any question in his cross-examination on the possibility of tampering of the material etc. He was the only person who could have explained all the questions raised by the appellants before us.
318.2 More so, Ms. Farhana Shah, learned counsel for the appellants could not satisfy the court as under what circumstances none of the appellants could raise this issue before the learned Designated Court.
318.3 In view of the above, the contention raised does not have any force. The appeal is dismissed accordingly.
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307. Appellant (A-110) was further charged for allowing the accused persons to smuggle and transport arms and ammunition into India for the purpose of committing terrorist acts, by illegal omission to thoroughly check the motor lorries carrying arms, ammunition and other contraband though intercepted by them on the night of 9.1.1993 at Gondghar Phata. He was further charged with failing to seize the aforesaid motor truck and its contents in lieu of bribe of Rs.7 lakhs agreed by all of them on negotiation with the co-accused Uttam Potdar (A-30), Custom Inspector Gurav (A-82), thereby, facilitating the commission of terrorist activities on 12.3.1993. Thus, charged under Section 3(3) TADA.
308. He was awarded sentence of 6 years under Section 3(3) TADA and a fine of Rs.25,000/-, in default of payment of fine, to suffer further RI of 6 months. He has already served more than 3 years.
309. Ms. Farhana Shah, learned counsel appearing for the appellant has submitted that the appellant (A-110) has not made any confession and reliance on the confessional statement of the co-accused by the learned Designated Court was erroneous. Thus, the appeal deserves to be allowed.
310. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that Uttam Shantaram Potdar (A-30) established the presence of the appellant (A-110) during the incident of interception of trucks at Gondghar Phata therefore, the appellant was involved in allowing arms and ammunition to be transported into India. Thus, the appeal deserves to be dismissed.
311. We have considered the rival submissions made by learned counsel for the parties and perused the record.
312. Evidence against the appellant (A-110):
(a) Confessional statement of Uttam Potdar (A-30)
(b) Deposition of Dilip Pansare (PW-97)
(c) Deposition of other witnesses
313. Confessional Statement of Uttam Potdar (A-30):
In his confessional statement, he stated that as the smuggling party did not have money to pay to the police when they were intercepted while smuggling the contraband, five silver bricks from the first truck were given to the appellant (A-110) who was specifically named by the co-accused (A-30).
313.1 In the confessional statements of co-accused Dawood Taklya Mohammed Phanse (A-14), Jaywant Keshav Gurav (A-82), Salim Kutta (A-134) and Mechanic Chacha (A-136) though did not name the appellant (A-110) specifically but they corroborated the version of the prosecution of interception by the police of Shrivardhan Police Station headed by Vijay Krishnaji Patil (A- 116) and alongwith silver bricks, some wooden boxes were also in the truck.
314. Deposition of Dilip Pansare (PW-97):
In his deposition he revealed that he was working as a mechanic in the State Road Transport Corporation and was a childhood friend of Uttam Potdar (A-30) who used to help him in transporting and smuggling the goods alongwith others. He had brought the truck for transporting the smuggled contraband on 9.1.1993 and when they were bringing the contraband in two trucks one of them was being driven by him. They were intercepted by the police of Shrivardhan Police Station at Gondghar Phata junction. He (PW 97) stopped the vehicle on getting the signals by the police. The appellant (A-110) got down from the jeep and he heard the appellant (A-110) shouting to take out the key of the said vehicle and bring the driver to him. He (A- 110) came near the truck and took away the keys of the first truck. Other police men started shouting that there was silver in the truck. Mechanic Chacha (A-136), Shabir Kadri and Uttam Potdar (A-30) negotiated with the officer Vijay Krishnaji Patil (A-116) for about half an hour. Gurav, the Customs Officer (A-82) also arrived and after negotiating for about half an hour, five silver bricks were taken from the truck in the police jeep by Hawaldar and the key of the truck was returned to the said witness (PW. 97).
315. Sujjat Peoplankar (PW-158), Bhaskar Boda (PW-159), Gopichand Sathnag (PW-160), Tukaram Kalankar (PW-161), Ganpat Giri (PW-162), Anant Lad (PW-166) and Dhiryasheel Koltharkar (PW-167) have deposed that the defence taken by Vijay Krishnaji Patil (A-116) and the appellant (A-110) that they had gone to a village for patrolling was false as none of them had reached that village on that day.
316. The learned Designated Court after appreciating the evidence came to the conclusion that landing of contraband material took place at Dighi Jetty on 9.1.1993 during night time and goods were transported from said Jetty in two trucks. The said contraband contained arms and ammunition, AK-56 rifles and bullets etc. The police party of Shrivardhan had intercepted the convoy carrying said contraband at Gondghar Phata. Furthermore it was held that confessions of co-accused and Dilip Bhiku Pansare (PW-97) reveal the identity and involvement of the appellant (A- 110) in the landing episode.
316.1. However, it was further held that the appellant (A-110) was member of police party headed by his superior Vijay Krishnaji Patil (A-116) and though the appellant (A-110) could not be said to be responsible for taking decision of permitting further transportation of said goods, however taking into account the fact that he had not reported about Vijay Krishnaji Patil (A-116) to higher officials, reveals that he had also connived with Vijay Krishnaji Patil (A-116) in performing said acts.
317. We find no evidence on record requiring interference with the judgment of the learned Designated Court. The appeal with reference to appellant (A-110) lacks merit and is accordingly dismissed.
318. So far as the serious objection that when the contraband material, arms and ammunition recovered at the disclosure statements of the appellants were opened in the court the material they were wrapped were subsequent to the date of recovery i.e. 8.4.1993. This has been explained fully in the court by Pratap Dighavkar (PW-586).
318.1. He deposed that as some of the samples had to be taken out of the recovered material and sent for FSL report, it was re-opened on 18.4.1993 and samples had been sent for FSL. Thus, the contraband materials recovered on the disclosure statement of these appellants were further wrapped in newspapers. So, it was quite possible that newspapers upto 18.4.1993 could have been used. None of the appellants had put any further question on possibility of tampering of the evidence to the said witness (PW- 586), though he proved the letter with which the contraband materials were sent for FSL and the FSL report itself, but none of the appellants put any question in his cross-examination on the possibility of tampering of the material etc. He was the only person who could have explained all the questions raised by the appellants before us.
318.2 More so, Ms. Farhana Shah, learned counsel for the appellants could not satisfy the court as under what circumstances none of the appellants could raise this issue before the learned Designated Court.
318.3 In view of the above, the contention raised does not have any force. The appeal is dismissed accordingly.
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