JUDGMENT: S. C. DHARMADHIKARI, J. This appeal against conviction is by the original accused No.1 Pappu @ Suresh Budharmal Kalani, hereinafter referred to as A1 for brevity's sake. He is aggrieved and dissatisfied with the conviction and sentence handed down on 3rd December 2013 in Sessions Case No.218 of 1999. 1. By the impugned judgment and order, the accused No.1 who was tried alongwith five others has been convicted of an offence punishable under Section 120-B read with Section 302 of the Indian Penal Code (IPC for short). He is sentenced to undergo life imprisonment and to pay fine of Rs.5000/-. In default, he shall suffer rigorous imprisonment for six months. 3. The operative order in the judgment of the learned Additional Sessions Judge, Kalyan reads as under: “1) Accused no.1 Suresh @ Pappu Budharmal Kalani is hereby convicted for having committed an offence punishable under section 120-B r/w. 302 of IPC and is sentenced to undergo life imprisonment and to pay fine of Rs.5000/- (Rupees Five Thousand only) i/d. to suffer R.I. for 6 months. 2) Accused nos.3, 6 and 7 namely Mohammad Arshad Mohammad Taher, Bacchi @ Ramchandra Sitalaprasad Pande and Gabriel @ 8aba Hans Moben are hereby convicted for having committed an offense punishable under section 302 r/w 120-B of IPC and are sentenced to undergo life imprisonment and to pay fine ofRs.5000/(Rupees Five Thousand only) i/d. to suffer R.I. for 6 months. 3) Accused nos. 3, 6 and 7 namely Mohammad Arshad Mohammad Taher, Bacchi @ Ramchandra Sitalaprasad Pande and Gabriel @ Baba Hana Moben are hereby convicted for having committed an offense punishable under section 450 r/w 34 of IPC and are sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs.5,000/- (Rupees Five Thousand only) i/d. to suffer R.I. for 6 months. 4) Accused nos.3, 6 and 7 namely Mohammad Arshad Mohammad Taher, Bacchi @ Ramchandra Sitalaprasad Pande and Gabriel @ Baba Hana Moben are hereby convicted for having committed an offense punishable under section 506(2) r/w.34 of IPC and are sentenced to undergo 7 years rigorous imprisonment and to pay fine of Rs.3,000/- (Rupees Three Thousand only) i/d. to suffer R.I. for 3 months. 5) Accused nos.3, 6 and 7 namely Mohammad Arshad Mohammad Taher, Bacchi @ Ramchandra Sitalaprasad Pande and Gabriel @ Baba Hana Moben are hereby convicted for having committed an offense punishable under section 353 r/w.34 of IPC and are sentenced to undergo 2 years rigorous imprisonment and to pay line of Rs.1,000/- (Rupees One Thousand only) i/d. to suffer R.I. for 1 months. 6) Accused nos.3, 6 and 7 namely Mohammad Arshad Mohammad Taher, Baccbi @ Ramchandra Sitalaprasad Pande and Gabriel @ Baba Hana Moben are hereby convicted for having committed an offense punishable under section 27(2) of Indian Arms Act and are sentenced to undergo 1 year rigorous imprisonment and to pay fine of Rs.1,000/- (Rupees One thousand only) i/d. to suffer R.I. for 1 month. 7) Accused No.1 namely Suresh @ Pappu Budharmal Kalani is hereby acquitted for having committed an offense punishable under sections 109 r/w 302 of IPC. 8) Accused No.2 namely Dr. Narendra Hemandas Ramsinghani is hereby acquitted for having committed an offense punishable under sections 120-B, 109, 307, 302 r/w 34 of IPC. 9) Accused No.3 namely Mohammad Arshad Mohammad Taher, Accused Nos.6 and 7 namely Bacchi @ Ramchandra Sitalaprasad Pande and Gabriel @ Baba Hana Moben are hereby acquitted for having committed an offense punishable uoder sections 109, 307 r/w.34 of IPC. 10) Accused No.5. Richard Robert Fernandes @ Satish Suvarna is hereby acquitted for having committed an offense punishable under section 120-b, 109, 450, 506(2), 353, 302, 307 r/w. 34 of IPC. 11) Sentence of accused nos.3, 6 and 7 run concurrently. 12) Investigation Officer is directed to file fresh charge-sheet against absconding accused no. 4 Shyamkishor @ Kishorbhai Murlidhar Garikapatti after securing his presence or original documents including FIR, spot panchanama as well as exhibited documents and seized property be handed over to Investigating Officer to facilitate tiling of fresh charge-sheet after securing presence of absconding accused no. 4 Shyamkishor @ Kishorbhai Murlidhar Garikapatti." 4. The prosecution case as unfolded by the record is as under: (a) The complainant police constable Ghanshyam Vijaykumar Bendre, Buckle No.1115 was assigned as a Bodyguard to Inder Sunderdas Bhatija (Inder) from 17th March, 1990. His duty hours were 8 am to 8 pm. He used to make entry in the register which has been maintained by the Vithalwadi Police Station. This entry was made while reporting on duty and also after leaving duty. His duty hours were 8 am to 8 pm. He used to make entry in the register which has been maintained by the Vithalwadi Police Station. This entry was made while reporting on duty and also after leaving duty. The Bodyguard complainant used to carry 410 musket butt No.362 and 30 rounds with him while on duty. The complainant was assigned as a Bodyguard to the deceased Inder because of an application made by the deceased Inder requesting for protection. The deceased Inder was apprehending a threat to his life on account of previous enmity between accused No.1, Himmat Kalani and his supporters. The real brother of the deceased Inder, Ghanashyamdas Bhatija hereinafter for brevity's sake deceased referred to as Ghanshyamdas, is alleged to have been murdered by accused No.1, Himmat Kalani and others. (b) As usual, the complainant police constable Bendre reported on duty at 8.15 a.m. on 28th April, 1990. After the necessary endorsement and entry at Vithalwadi Police Station, he reported at the residence of deceased Inder in Camp No.3, Ulhasnagar. He reported alongwith his musket and rounds. He relieved the night duty police constable Darade. At about 8.45 a.m., the complainant escorted deceased Inder to his burner factory. That was at about 8.50 a.m. They came to this factory in a Maruti car No.MH-05/A 6867. After parking the vehicle/car, the deceased Inder went inside the factory office while the complainant stood as guard just outside the same. The complainant was joined by the watchman Shivbahadur Ramdhiraj Shukla. (c) The prosecution case further is that at about 12.15 p.m. one biscuit colour Maruti car came from the direction of Hotel Pinto and stopped in front of the office. Four persons alighted from the same. Two out of them approathed, namely, Bacchi @ Ramchandra Sitalaprasad Pande and Gabriel @ Baba Hana Moben approached the watchman Shivbahadur Ramdhiraj Shukla and the complainant Bendre. They suddenly removed the revolvers from their pockets and threatened them not to move or make any noise. It is alleged thatthese persons threatened the complainant and the watchman Shivbahadur Ramdhiraj Shukla that if they do not agree, they would be shot down. They also directed the complainant and the watchman to look only in the front failing which they would be shot. It is alleged thatthese persons threatened the complainant and the watchman Shivbahadur Ramdhiraj Shukla that if they do not agree, they would be shot down. They also directed the complainant and the watchman to look only in the front failing which they would be shot. The complainant tried loading the musket but the assailant who was pointing the revolver at the watchman snatched the musket from the complainant's hand and flung it on the office roof. In the meanwhile, remaining two assailants had entered the office of deceased Inder. The watchman tried to run away and entered the office of the deceased Inder from a side entrance only to warn him. However, just then both of them heard a firing sound and saw the two assailants who had entered the office of the deceased Inder rushing out there from. The two assailants who had threatened the complainant and the watchman joined them and all four of them escaped and ran away in the biscuit colour Maruti car towards Camp No.3. The car number was noted as BLL 5647. The complainant then rushed to the office of Inder and found him lying in a pool of blood on the floor between the table and chair. He was bleeding from his head. The complainant tried to bring him out of the office and take him to the hospital but could not succeed. He, therefore, went to seek help. By that time, a mob had gathered outside the office. About 3 to 4 persons from the factory came there and with their help, complainant picked up the deceased Inder and brought him out of the office. Just then, one Mohan Behrani, maternal uncle of deceased Inder came at site in a Maruti car. Deceased Inder was carried inside a van and taken to the Central Hospital. The complainant tried to call Vithalwadi Police Station but to no avail. He then told a young boy to get the musket from the roof of the office. After taking the same into custody, the complainant went to the Central Hospital where Inder was undergoing treatment. His attempts to make a telephone call to Vithalwadi Police Station failed. He, therefore, went to the Police Station and lodged the complaint Exhibit 270. The offence was registered as C.R.No.I-89/ 90. 5. The investigation was handed over to Police Inspector (PI) Vilas Shripadrao Jadhav. His attempts to make a telephone call to Vithalwadi Police Station failed. He, therefore, went to the Police Station and lodged the complaint Exhibit 270. The offence was registered as C.R.No.I-89/ 90. 5. The investigation was handed over to Police Inspector (PI) Vilas Shripadrao Jadhav. He deputed Police Sub Inspector Harihar for recording the statement of the injured Inder Bhatija who was admitted at the relevant time at Sion Hospital. He also directed PSI Deshmukh to draw spot panchanama, who in turn visited the spot and recorded the same. The officer also attached articles from the spot viz. two pieces of tiles, out of which one was stained with blood, one pair of slippers stained with blood, one pair of spectacles and three used cartridges and one live cartridge under spot panchanama Exhibit 275. In the meanwhile, information was received through PI Bhere that injured had succumbed to his injuries in the hospital. The investigating officer Shri Jadhav also recorded the statements of witnesses including that of eye witness PW 13 Vijaybahadur Shukla. He also obtained copy of the complaint given by deceased Inder on 27th February, 1990 and placed it on record. The Assistant Sub Inspector of Police Popat Shivaji Kale in the meanwhile collected clothing of deceased Inder which was attached under panchanama Exhibit 304. PSI Vithal Vishwanath Harihar recorded inquest panchanama Exhibit 307. Subsequently, the investigations were transferred to Punjabi Colony Police Station. The Deputy Commissioner of Police Subhash Bhalchandra Phadke subsequently took over the investigation and initially a charge-sheet was forwarded to the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short TADA), Pune as accused were charge-sheeted under sections 3 and 18 of that Act. In the said charge-sheet, three accused viz. AI, Dr. Narendra Hemandas Ramsinghani and Mohammed Arshad Mohammed Taher Shaikh were arraigned and A4 to A 7 were shown as absconding. Thereafter, accused Richard Robert Fernandes was arrested in a case of Sahakar Nagar Police Station, Pune on 3rd April, 1991. Therefore, DCP Phadke obtained his custody. His confessional statement under the provisions of TADA was recorded and subsequently, charge-sheet was sent up. Then accused Bacchi Pande @ Ramchandra Shitlaprasad Pande was arrested in another offence by Delhi Police. DCP Phadke obtained custody of this accused also and recorded his confessional statement under TADA. A request letter was sent for conducting identification parade of the said accused. His confessional statement under the provisions of TADA was recorded and subsequently, charge-sheet was sent up. Then accused Bacchi Pande @ Ramchandra Shitlaprasad Pande was arrested in another offence by Delhi Police. DCP Phadke obtained custody of this accused also and recorded his confessional statement under TADA. A request letter was sent for conducting identification parade of the said accused. Thereafter, the supplementary chargesheet was sent up (Exhibit 310). There was a seizure effected by PW.26 Shivdas Bajrang Tagtode. He took over the investigation and he realized that in C.R.No.159 of 1991 registered at Khar Police Station, Bacchi Pande, Baba Gabriel and others have been arraigned as accused and some provisions of TADA have been applied to them. In that case, these accused had given a confessional statement confessing to the commission of the present offence before the competent authorities. Hence, Mr. Tagtode recorded statements of various witnesses including the brother of the deceased, Kamal Rhatija and issued a letter to the concerned PI of Khar Police Station for handing over weapons and other articles seized in C.R.No.159 of 1991 as well as the accompanying documents like seizure panchanama confession etc. He then obtained custody of accused Mohd. Arshad Taher Shaikh. 6. Thus, the prosecution case summed up from the statements of various witnesses and other documents is that A1 Pappu @ Suresh Kalani and A2 Dr. Ramsinghani were the masterminds and had hatched a conspiracy to murder the deceased victim Inder Rhatija. Therefore, the I.O. arrested A1 and Mohammed Arshad Taher Shaikh. Thereafter he called the complainant and the watchman and showed them photo albums in which photos of accused Bacchi Panek Baba Gabriel and Mohammed Arshad Taher were appearing and they were identified by these two persons. The I.O. also recorded statement of the father of deceased Inder, Mr. Sunderdas Bhatija at Exhibit 410, the widow of said Inder Rekha Bhatija and other family members. He collected documents including copies of some noncognizable and other cases registered against various accused. The seized articles were dispatched for Chemical Analysis. While in custody, accused Mohammed Arshad Taher expressed willingness to confess to the crime and hence, he was sent to magisterial custody. A supplementary charge-sheet was then sent up against the arrested accused. However, all the accused filed applications before the Designated Court under the TADA and applied for discharge. The seized articles were dispatched for Chemical Analysis. While in custody, accused Mohammed Arshad Taher expressed willingness to confess to the crime and hence, he was sent to magisterial custody. A supplementary charge-sheet was then sent up against the arrested accused. However, all the accused filed applications before the Designated Court under the TADA and applied for discharge. An order was passed by the said Court discharging the accused from the provisions of TADA but clarifying that they can be proceeded against under the Indian Penal Code and by the competent Court therein under the Code of Criminal Procedure, 1973. Therefore, the matter was transferred to the Court of the Additional Session Judge at Kaiyan, District Thane. The then learned Additional Sessions Judge framed charge (Exhibit 105). On the charge being read over and explained, the accused pleaded not guilty and claimed to be tried. Their defence was of total denial and that they were falsely implicated in the present case. It is in these circumstances that the trial in the Sessions case which has been numbered as Sessions Case No.218 of 1999 proceeded before that Court. 7. The prosecution examined a number of witnesses (29) and number of them turned hostile. They were cross-examined by the Public Prosecutor after the requisite leave under the provisions of law was obtained by him. 8. We will first refer to the evidence of those witnesses who did not turn hostile. 9. The complainant Ghanshyam Vijaykumar Bendre, a police constable attached for protection of the deceased Inder deposed at Exhibit No.269 as prosecution witness 4. 10. He has in the examination-in-chief narrated the incident and reiterated his version of the prosecution as referred in the above details by us. In his cross examination by the accused Nos.3, 5 and 6, he was asked several questions and given various suggestions. He has stated that it is true that when he reached the Central Hospital, Ulhasnagar, the police had already reached there. He could not give an answer to the question as to whether the police staff was from Vithalwadi Police Station but clarified that the police from that police station had also reached the Central Hospital. He admitted that he took about half an hour after the incident to meet the police. He stated that he was in the hospital for about 510 minutes and thereafter he went to the Police Station. He admitted that he took about half an hour after the incident to meet the police. He stated that he was in the hospital for about 510 minutes and thereafter he went to the Police Station. He gave a report of the incident to the senior officers and there was an enquiry which continued even after 28th April 990. He confirmed the contents of the FIR and his signature as well. He stated that he did not feel that he committed any mistake at the time of lodging of the report. This was because the description of the assailants is required to be given when they are unknown. He stated that he was asked about this at the time of recording the report but for one assailant, he was unable to give description of others. However, he stated their ages. He also stated at the time of lodging the report that he had not clearly seen the persons who entered the office of deceased Inder. He was asked as to when was his statement recorded and he stated that the same was recorded after about quarter to three years from the date of the incident. He was asked as to his postings and he candidly stated that till 1992 he was attached to Headquarters and thereafter he was transferred to Ramnagar Police Station, Dombivli, Dist. Thane. Till January 1993, he was called by the investigating officer on many occasions either to identify the arrested accused or to identify the accused from photographs. He has stated that one of the accused was shown to him in police lock-up at Thane alongwith other accused. He has stated that the four persons who had entered the office of the deceased were unknown to him and he had not seen them before the incident. He was asked a question as to how many photos were shown to him and he answered that, only two photographs were shown to him on 20th February 1993. The person viz. accused who was shown to him at Thane police lock-up was thereafter seen by him only in Court. He was not in a position to clarify whether photographs of those two persons were shown to him previously. He was also asked about the signatures on those photographs which were shown to him but his signatures were not obtained. accused who was shown to him at Thane police lock-up was thereafter seen by him only in Court. He was not in a position to clarify whether photographs of those two persons were shown to him previously. He was also asked about the signatures on those photographs which were shown to him but his signatures were not obtained. He stated that the police told him the names of persons whose photographs were identified by him. He was asked about his statement recorded by the police and certain details with regard to the photographs and he stated that the photographs shown to him did not comprise of the photograph of a person who snatched a rifle from him and threw it on the tin sheet. He confirmed that the culprits whose photographs were identified by him were described by him in the report by ages and no other description was given by him. He was again called on 25th February, 1993 by the Crime Branch but he did not recollect why he was called and no statement was recorded. He said that after 25th February 1993 whether his statement was recorded or not is something which he cannot recollect now nor can he recollect as to whether any photographs were shown to him. He said that the photographs were shown to him when he was called at Bombay for the identification parade in 1995-96.Thereafter, he was called for another identification parade held at Yeravada jail and that must have been held after one year from 1995-96. He had seen these two accused identified by him at Bombay and Yeravadajails only in Court thereafter. 11. We have referred to these details because Mr. Chitnis, learned senior counsel appearing in the other appeal has raised a serious grievance about firstly there being no test identification parade and alternatively, the one which was stated to be held does not meet the requirement of law. It is for appreciating these arguments that we would be required to refer to these aspects and that is why it would be appropriate to refer to them in this very judgment so that even if separate order is passed in the other appeals, there is no repetition. 12. The cross-examination of this witness then proceeded on the point of the location of the office of deceased Inder. 12. The cross-examination of this witness then proceeded on the point of the location of the office of deceased Inder. There are questions put to him in para7 of his deposition with regard to the distance of the office from the road and its proximity as to what is called a busy road and other factories. The witness has in answer to one of the questions stated that the front door of the office of the deceased Inder was closed. It was attached with a door closer. He then stated that the person coming from the road comes towards the first floor of the office which is attached to the door closer. Nobody was sitting in front of that door. He stated that while entering the office from another door one has to cross the front door and thereafter from second door inside the passage one can pass through another door which is to the right side of the office. He stated that a person whose description is shown to him in the report has a strong build anci black complexion. He entered the office. He denied the suggestion that he did, not see the person entering the office clearly and still proceeded to give his description. He confirmed with regard to the other persons description but stated that he has not given description of the accused who aimed a revolver at him. He could not give description of other three accused. He was then asked about the two photographs of some of the accused and he admitted that he did not read any news about the arrest of those accused till he had been to Bombay and Pune for identification parade. The photographs were shown to him at Kalyan and Thane by Crime Branch but he was never called to Bombay for enquiry with reference to the offence. He has stated with regard to several questions posed about how and when he reported at the Thane City Police Station. 13. Most of the questions in paras8 and 9 are with regard to the test identification parade. The witness has stated that watchman Bahadur was with him for identification parade at Bombay as well as at Pune but he cannot confirm as to whether Bahadur reached both places prior to him. 13. Most of the questions in paras8 and 9 are with regard to the test identification parade. The witness has stated that watchman Bahadur was with him for identification parade at Bombay as well as at Pune but he cannot confirm as to whether Bahadur reached both places prior to him. His answers about the presence of panch as at the test identification parade held at Bombay and Pune are set out and there are questions in para9 posed to seek details of the identification parade at Bombay and Pune. Similar is the position with regard to the questions at para10. 14. The witness was also asked whether the clothes of the deceased Inder were stained but what he has stated that when he tried to lift the said deceased, his clothes might have been stained to some extent. However, he was holding the deceased by his legs. The said witness also states that his clothes were not seized by I.O. nor was he asked to produce the same. He also stated that he was not asked by any superior officer to give a written report in connection with the incident nor was any enquiry held against him in connection with the incident. He stated that he has been continuously on duty after the said incident. 15. In paras12 and 13 further suggestions were given to this witness. On the identification parade, he denied the suggestion that two persons identified by him in the identification parade were shown to him prior to the said parade. He also denied the suggestion that their photographs were shown to him. He denied the suggestion that he has previously seen these accused on many occasions and prior to the identification parade. He did not admit any of the suggestions given to him with regard to the identification or the accused and denied the suggestion that no identification parade was held at Bombay or Pune. 16. He stated that after the identification parade, enquiry was made by the officers of Crime Branch with him but denied the suggestion that his statement was reduced into writing after the identification parade at Pune and Bombay. Whether, any memorandum was made by the panchas or not was something which he was unable to clarify. 16. He stated that after the identification parade, enquiry was made by the officers of Crime Branch with him but denied the suggestion that his statement was reduced into writing after the identification parade at Pune and Bombay. Whether, any memorandum was made by the panchas or not was something which he was unable to clarify. He specifically denied the suggestion that he was not present on duty on the date of the incident and that he is deposing falsely to protect his service. He also denied the suggestion that he is deposing falsely about the presence of the accused. 17. The accused No.1 and accused No.2 adopting this cross examination did not independently put any questions to this witness. The deposition of this witness was recorded on 9.5.2005. 18. The other witness who has not turned hostile is the brother of deceased Inder, who deposed as PW 26 at Exhibit No.447. 19. In his examination-in-chief, he stated that deceased Inder and another victim Ghanshyam are his brothers. He stated that deceased Inder was carrying on the business in the name and style Anand Burner Factory prior to his murder. The other victim/deceased Ghanshyam was carrying on hotel business under the name and style Pinto Park (Prakash Hotel) prior to his murder. 20. The said PW26 stated in his examination-in-chief that he knows accused No.1 and accused No.2 Dr. Narendra very well. He stated that A1 is in his relation. The version of this witness is that his brother Inder was murdered in his office inspite of police protection. It is stated that Bhatijas are residing at Ulhasnagar. They started one Prakash Hotel in 1986. On 27th November 1987, some persons came to the hotel in three vans at about midnight. A1, his brother Narayan Kalani and Dhan Kalani were amongst them. They were all searching the other victim Ghanshyam and PW26 heard them saying that they would kill him. 10 to 12 persons who had come on that day damaged the entire hotel and they were armed with knife, sword, revolver and bomb. However, they could not find Ghanshyam and hence they went to his house and broke open the door of the house. 21. PW26 then states that there was an Assembly Election on 27th February, 1990. Kamal (PW26) and deceased Ghanshyam and others represented Bhartiya Janata Party in that election. However, they could not find Ghanshyam and hence they went to his house and broke open the door of the house. 21. PW26 then states that there was an Assembly Election on 27th February, 1990. Kamal (PW26) and deceased Ghanshyam and others represented Bhartiya Janata Party in that election. It is stated that on 27th February, 1990 at about 3.00 pm, they were present at the site O. T. No.3. A1 Pappu Kalani came there in a big car. He got down and went towards Ghanshyam. He threatened Ghanshyam and stated that Ghanshyam is working in the elections against A1 and A1 will see him after the elections. However, all the 3 brothers viz. Kamal, Ghanshyam and Inder continued the election work. On the very day i.e. 27th February 1990 after finishing the election work at about 7.15 pm, PW26 received an information on telephone that Ghanashyam has been fired at. He states that he rushed to the spot and then to Central Hospital, Ulhasnagar. The complaint of this incident was lodged by Inder Bhatija who is victim/deceased in the present crime. However, there was no response from the police even after the statement ofPW26 in relation to this crime was recorded. 22. PW26 stated that Inder was an eye witness to the incident of tiring at Ghanashyam thus and witnessed the same. That is why Inder started receiving threatening calls from A 1. That is why the deceased Inder and his father Sundardas Bhatija gave applications to the Deputy Commissioner of Police one Y. C. Pawar, Commissioner of Police Tyagi, Chief Minister of State of Maharashtra and then Prime Minister of India. Therefore, police protection was given to deceased Inder. Even then the threatening calls were received by him. The caller stated that the deceased Inder had killed A1's uncle Dulichand Kalani and now that Ghanashyam was murdered, he will also be murdered and finished. 23. PW26 stated that on 28th April, 1990 that is exactly about two months from the murder of Ghanashyam, Inder was murdered. PW26 confirmed that the rifle or weapon of the police guard protecting Inder was snatched at that time and thrown on the roof. PW26 stated that deceased Inder was shot and the complaint in relation thereto was lodged by police constable Bendre PW4 Exhibit 270 but PW26's statement was not recorded on account of terror. PW26 confirmed that the rifle or weapon of the police guard protecting Inder was snatched at that time and thrown on the roof. PW26 stated that deceased Inder was shot and the complaint in relation thereto was lodged by police constable Bendre PW4 Exhibit 270 but PW26's statement was not recorded on account of terror. Accused Pappu Kalani was arrested in 1992 and thereafter PW26 was called by police and his statement was recorded in January 1993. 24. The PW26 in his examination-in-chief also stated that A1 and many persons came in the van on 27th November, 1987 at about 12 to 12.30 and they were also searching for deceased Inder. It was also stated by this witness that there were Municipal elections in the year 1986 and Congress party on its own got the majority seats. PW12 Sunderdas Bhatija, Mohan Behrani, A1 Pappu Kalani, Narayan Kalani, Gop Behrani and Trilok Kalani were elected in the election. However, there was a dispute with regard to the post of President of Ulhasnagar Municipal Council between Pappu Kalani and Gop Rehrani. The Congress party high command issued a direction that these two persons will share the President's post for a two and a half year each. The Bhatijas and particularly their father Sunderlal was strong supporter of Gap Behrani. PW26 also stated that A1 Pappu Kalani refused to vacate the post of President after two and half years. PW26 stated that there was a murder of Dulichand Kalani. Dulichand was uncle of A1. Deceased Inder and Ghanashyam was arraigned as accused in the murder case of Dulichand and the witness states that this was at the instance of A1. The brothers of PW26 were involved because Gop Rehrani supported A1 Pappu Kalani at that time. PW2 stated that the brothers were made accused so as to obtain support of PW 12 Sundarlal to accused A1 Pappu Kalani. 25. In para7 of the examination-in-chief PW26 states that he can identify the copies of the applications given by deceased brother Inder and his father Sundarlal to DCP Pawar, Police Commissioner Tyagi in respect of threatening calls by A 1 to them. It is stated that photo copy of the application dated 14th March, 1990 to Police Commissioner Tyagi given by Sunderlal and shown to this accused is the same. The signature of his father Sundarlal was identified by PW26. It is stated that photo copy of the application dated 14th March, 1990 to Police Commissioner Tyagi given by Sunderlal and shown to this accused is the same. The signature of his father Sundarlal was identified by PW26. These document was marked as Article B. We would refer to these aspects in further details when we consider the arguments of Mr. Mundargi, learned senior counsel appearing in support of this appeal. 26. This witness was asked as to what evidence his father Sundarlal gave before the Court in this case but he was unable to give the details and only stated that as on 14th March, 2011. PW 12 Sunderlal was not alive and had passed away. 27. This witness was cross-examined in great details by the advocate for A 1 Appellant before us. He was asked about his educational qualifications and business. He was also asked about the business of the brothers who are no more and deceased. He was asked with regard to the distance of PW26 is place of business and that of the deceased brother Inder. 28. The witness was asked as to whether he and deceased brother Inder resided together and he stated in the affirmative but clarified that deceased Ghanashyam resided separately. He gave the detailed residential addresses of the brothers and the distance between their houses. 29. In an answer to one question, this witness stated that Gop Beharani, Mohan Beharani and Thakur Beharani are his maternal uncles. Gop Behrani died in 2008 and prior thereto in 2007, Mohan also expired. Both died of natural causes. The year of the death of PW Sundarlal is stated by this witness as 2009. The said Sundarlal was 95 to 97 years of age. This witness in his cross-examination by A 1 admitted that he was knowing Dulichand Kalani very well. Both the brothers who are deceased Gop Beharani, Mohan Beharani, Gopal Rajwani. Lalumal Hemje, Godu Krishnani. Vasu Krishnani and others were accused in the murder of Dulichand. The said Dulichand was also murdered. 30. This witness in his cross-examination by A 1 admitted that he was knowing Dulichand Kalani very well. Both the brothers who are deceased Gop Beharani, Mohan Beharani, Gopal Rajwani. Lalumal Hemje, Godu Krishnani. Vasu Krishnani and others were accused in the murder of Dulichand. The said Dulichand was also murdered. 30. PW26 in his cross as well confirmed his presence at Pinto Park (Hotel Prakash) at the time of the incident which took place on 27th November, 1987 and stated that he lodged FIR in respect of the said incident at Vithalwadi Police Station but stated that though he does not know why the case was not pursued, however, that does not mean that the incident did not occur at all. This witness was asked as to when police recorded his statement in the present case on 15th January, 1993 and on 25th February, 1993 though he referred to the incident of 27th November, 1987, he does not know the reason for the same, He was asked specifically as to why in his statement and the supplementary statement, the portion in his examination-in-chief about all the accused going to the house of said Ghanashyarn (another victim/deceased) and they broke open his house, has not been appearing and he replied that he will not be able to explain the reason for the same. He denied the suggestion that he did not inform the police about this incident when his statements, were recorded nor did he give any details regarding the same. 31. The witness was asked as to when he gave the statement to the police on 15th January. 1993 in respect of the incident of 27th February, 1990 as to why the portion that when they were standing at O. T. No.3, A 1 came in a car and got down has not been referred. He was asked as to what is the reason for which incident is not referred and he could not give the same. He denied the suggestion that this incident was not narrated or referred by him because he was not present at the time of the same i.e. 27th February, 1990. 32. He was further asked as to why in his statement, he has not stated that since Duliehand Kalani was killed by Bhatijas and others. Ghanashyam also will be murdered and so also Inder. 32. He was further asked as to why in his statement, he has not stated that since Duliehand Kalani was killed by Bhatijas and others. Ghanashyam also will be murdered and so also Inder. However, he denied the suggestion that there were no threatening calls received. 33. In para14 of the cross-examination, it is stated by the witness that he had gone to the Police Station with a complaint with regard to the murder of both Ghanshyam and Inder but police did not take it on account of terror of accused Pappu Kalani. The witness admitted that the complaint was not sent to the police by post. He admitted that his statement was recorded on 9th October 1990 in respect of the murder of Ghanshyam, He states that he is also witness in Sessions Case No.219 of 1999. This witness admitted that he was in jail for 10 months in a case under section 420 of IPC in the State of Gujarat and this must have been between 2006/2007. The witness was asked about whether he deposed about the incident stated to have occurred on 27th November, 1987 either in the statements recorded while investigating the murder of Ghanshyam or during trial of the case. The witness did not recollect as to whether the details of this incident were narrated by him while deposing in the case of murder of Ghanashyam. Then the attention of the witness was invited to the certified copy of his statement recorded by police on 9th October, 1990 as well as his evidence recorded in Sessions Case No. 219 of 1999 on 4th May 2009. The witness after going through the certified copies admitted that there is no reference with regard to this incident and in the police statement as well as in his evidence in Sessions Case No.219 of 1999. However, he once again stated that he had stated about this incident in another statement (supplementary) recorded in that case but he does not recollect the date of its recording. He stated that he was under trauma trauma and was nervous when his evidence was recorded in Sessions Case No.219 of 1999. He denied the suggestion that no incident of 27th November. 1987 has taken place. 34. Thereafter, he denied the suggestion with regard to the incident of 27th February, 1990. He stated that he was under trauma trauma and was nervous when his evidence was recorded in Sessions Case No.219 of 1999. He denied the suggestion that no incident of 27th November. 1987 has taken place. 34. Thereafter, he denied the suggestion with regard to the incident of 27th February, 1990. He denied the suggestion that he was falsely deposing against A 1 about the threats given to deceased brother Inder. He denied the suggestion that he is deposing falsely with regard to the application given to the police authorities by the complainant about the terror unleashed by A 1 and that is how the police is not recording his statement. 35. The cross-examination of this witness by advocate for accused Nos.3 to 7 was declined. Thereafter there is another eye witness who has not turned hostile. He is PW21 the investigating officer Shri Jaising Shivajirao Patil. 36. Before that we refer to the deposition of PW26 Shivdas BajrangTagtode. He was posted in October, 1992 in Crime Branch, Kalyan as Senior Police Inspector and was entrusted the investigation in the present case on 5th December, 1992. He took over the investigations from PI Gaikwad and the papers comprised of complaint of the police constable Bendre. Thereafter, this witness refers to the spot panchanama drawn by PSI Deshmukh. The seizure of the property and the notes received by him regarding postmortem. He stated that the papers received were also comprising of an inquest panchanama. There were certain statements recorded till that date and after he took over the investigations and referred the case diary, he proceeded to record the statement of one Ramesh Thavardas Chetwani. He proceeded to arrest accused Narendra Hemdas Ramsinghani who was arrested in other crime in respect of the death of Ghanashyam. Thereafter, this witness narrates as to how the panchas drew the panchanama and the contents of the spot panchanama have been confirmed hy him. It is this witness who drew the spot panchanama and seized the chair on which the deceased was sitting at the time of incident. He then refers to the several details including the directions given by him to collect photo album of sharp shooters in Mumbai, Navi Mumhai, Thane and Thane city. He proceeded to narrate as to why the statements of watchman has heen recorded in this case and the further statement. He then refers to the several details including the directions given by him to collect photo album of sharp shooters in Mumbai, Navi Mumhai, Thane and Thane city. He proceeded to narrate as to why the statements of watchman has heen recorded in this case and the further statement. He refers to the search carried out by him and the statements of other witnesses which have been recorded. He has referred to the statement of Kamal Beharani recorded by him and the details about how he procured the custody of Mohd. Arshad Tahir Shaikh and effected his arrest and that of A 1. That deposition initially refers to the details collected by him after the investigations were handed over to him. He also narrates about further steps taken. In his crossexamination by the accused, some details were sought and partcularly about the identification of photographs and why the details of photo album are not to be found in the case diary. In the cross-examination of this witness by A 1, he was asked about the antecedents of deceased Inder Bhatija and he admitted that he was one of the accused in the murder case of the uncle of Pappu Kalani. He clarified that Mohan Behrani is maternal uncle of deceased Inder and Gap Beharni. He in the cross-examination stated that in 1986, there were Municipal elections and it was agreed that Pappu Kalani would President of two and half years and thereafter the post will be held by Gop Behrani. He was asked about the political background of these persons and whether there was any family dispute between Behranis and Kalanis. All the suggestions about noninvolvement of A 1 in this case have been denied by this witness. 37. PW21 Jaising Patil in his examination-in-chief has deposed about how he while working as Police Inspector (Crime) at D.N. Nagar Police Station, Mumbai and being part of the anti-terrorist squad established by Additional Commissioner of Police, North Region, Mumbai, had an occasion to confront certain persons at a raid carried out in the premises of one Calbrow Polyster Limited. He stated that this raid was conducted by Inspector Quavi. He found three persons sitting in that office and on enquiry they disclosed their names as Dilip Mulchandani, Gabriel @ Baba son of Hans Moben, Ramchandra @ Bacchi Pande. This witness stated that the persons present in Court hall are the same. He stated that this raid was conducted by Inspector Quavi. He found three persons sitting in that office and on enquiry they disclosed their names as Dilip Mulchandani, Gabriel @ Baba son of Hans Moben, Ramchandra @ Bacchi Pande. This witness stated that the persons present in Court hall are the same. He confirmed about their search in the presence of panchas Mahaveer and Bhimsingh. The search of Baba Gabriel showed that he was in possession of foreign made pistol loaded with live rounds. That pistol was taken by this PW21 in his possession. Thereafter, search of Bacchi Pande resulted in seizure of a revolver. That is how he proceeded to arrest the three accused and seized the weapons, live cartridges and one hand grenade. The other three accused arrested on instructions of Bacchi Pande and Gabriel are not the accused in the present case except one Arshad. The accused as well as the weapons were taken to Khar Police Station, they were sealed and labeled and were seized under panchanama. The place of panchanama and its conclusion are stated. This witness was not cross-examined by A 1 and A2 but by accused Nos.3, 5, 6 and 7. The witness was asked as to where is the office of Calbrow Polyster Ltd. and as to what information he had received about the persons thereat. The witness was unable to recollect some details. His cross-examination in paras7 and 9 are relied upon by the counsel appearing for the other accused and in these paragraphs, the questions and suggestions are with regard to the presence of the accused Bacchi Pande and Gabriel, seizure of weapons from them and the absence of some details in the panchanama but which have been spoken in the oral deposition or examination-in-chief in this case. There are certain questions about the weapons and the details not being mentioned in the panchanama or that of a personal search of accused carried out. The suggestion that there was no visit or search of the premises of Calbrow Polyser Ltd. or the premises of M/s. Papilon tailors have been denied by him. 38. The depositions of other witnesses and which have been relied essentially by Mr. Mundargi and Mr. Chitnis, learned Senior Counsel are of PW9, PW10, PW11, PWl2, PW20, PW27, PW29 and PW14. The suggestion that there was no visit or search of the premises of Calbrow Polyser Ltd. or the premises of M/s. Papilon tailors have been denied by him. 38. The depositions of other witnesses and which have been relied essentially by Mr. Mundargi and Mr. Chitnis, learned Senior Counsel are of PW9, PW10, PW11, PWl2, PW20, PW27, PW29 and PW14. We will refer to the deposition of these witnesses in details when we are considering their submissions. 39. Mr. Mundargi, learned senior counsel appearing on behalf of A 1 submitted that the three aspects and on which rests the conviction and sentences recorded are (1) conspiracy (2) motive and (3) legal issues. 40. On the question of conspiracy. Mr. Mundargi submits that on perusal of the charge, it is apparent that the same is based on the statements of one Tardalkar PW9, Dashrath Vishwasrao, PW10 and Balu Kakade PW11. All three of them have turned hostile. As far as Tardalkar is concerned, he claims to have stated that there are two vehicles which were used by A 1 and they belonged to the Ulhasnagar Municipal Council. Tardalkar was working as head clerk. He claims that since 1985, he was incharge of vehicles of Municipal Council, Ulhasnagar and till the year 2000. Being incharge of vehicles of this council, it was his job to assign duties to the drivers and look after the maintenance of the vehicles. He claims to have given vehicles to the officers of different departments for official work. A 1 Pappu Kalani was President of Municipal Council and no vehicle was given to the President officially. Mr. Mundargi submits that he deposes about two vehicles owned by Municipal Council but when he stated that these vehicles were never used by A 1, the permission was sought to declare this witness as hostile and thereafter the APP cross-examined him. In his cross-examination, he has given vital admissions and which are to the effect that the drivers were not writing any log book. He has admitted in his cross-examination that several statements are attributed to him by the police but those are not made by him. He denied a suggestion that he is deposing falsely and under pressure of A1. Mr. Mundargi submits that there is no corroboration of any of the statements which are attributed to him by the prosecution and from which he has resiled. Mr. He denied a suggestion that he is deposing falsely and under pressure of A1. Mr. Mundargi submits that there is no corroboration of any of the statements which are attributed to him by the prosecution and from which he has resiled. Mr. Mundargi submits that there is absolutely no proof of conspiracy because even witness PW10, a driver in the service of Ulhasnagar Municipal Council and Balu Tukaram Kakade, PW11 turned hostile and denied their statements made to the police and recorded under section 161 of Criminal Procedure Code. Thus, the bogey of pressure and terror by A1 has not been substantiated and proved at all. If there is an apprehension in the mind of the staff members of the Ulhasnagar Municipal Council and they have not stood by their version given to the police that is not because of any pressure or force exerted by A1. A picture has been painted that A1 unleashed terror in the locality and created fear in the minds of everybody including the residents and that is why none comes forward to depose against him or make a complaint against him. That is absolutely false. There cannot be an unilateral terror theory and particularly when deceased and his family arc also affluent and well connected persons residing in the same locality. They are supporters of Bhartiya Janata Party and claimed to have known several top political and social leaders. They could have easily approached the police even during the course of the elections or when other disputes arose as between them and A 1 and his family. Therefore, the inference drawn that there was terror and pressure throughout his based on inadmissible evidence. There is no foundation for the conclusion reached by the learned Judge on this aspect. That A 1 let loose a reign of terror in the locality is not even a suggestion given to any witness. In such circumstances, the findings of fact are clearly vitiated firstly by non application of mind and secondly by omission to make any reference to vital materials including admissions of the witnesses. Similarly, when majority of the prosecution witnesses have turned hostile and have not supported the version then all the more it was risky for the learned Judge to have concluded that the offence under section 120B of the Indian Penal Code stands proved as against accused No.1. Similarly, when majority of the prosecution witnesses have turned hostile and have not supported the version then all the more it was risky for the learned Judge to have concluded that the offence under section 120B of the Indian Penal Code stands proved as against accused No.1. Pertinently, accused No.2 has acquitted by concluding that there was no cogent and satisfactory material to record any finding of conspiracy against him. 41. Mr. Mundargi submits that assuming without admitting that the version of the hostile witnesses can be relied upon but that is with a rider that it must fully support the prosecution case and secondly, there should be corroboration for the same by way of independent material. These tests have not been fulfilled in the present case. By mere political opposition, neither a conclusion of conspiracy nor of motive can be reached. 42. In so far as motive for the crime is concerned. Mr. Mundargi submits that proof of it does not dispense with the requirement of proof of commission of the crime. This is a case of circumstantial evidence. The motive is, therefore, relevant factor. Even otherwise, if the case is based on direct evidence and therefore, motive is not relevant, still, as far as that aspect is concerned, the version of PW12, PW20 and PW26 is inadequate. PW12 is the father of the deceased Inder but he turned hostile and has refused to stand by the prosecution case. He has admitted that in the murder case of Dulichand Kalani, his both sons Ghanshyam and Inder were implicated as accused. Further he did not support the prosecution version that Pappu Kalani was going to cause the death of all those involved in the murder of Dulichand Kalani. He has specifically resiled from the statement marked 'C'. Secondly, he has not stood by the version of the prosecution that there was any complaint made to the Commissioner of Police or Deputy Commissioner of Police or Assistant Commissioner of Police or to the then Prime Minister of India or Lalkrishna Advani about the activities of Pappu Kalani. All that he has stated is that there might be a telegram sent to the police and the contents of that telegram might have been mentioned by his brothers in law. It is in these circumstances that his version is not enough to arrive at a conclusion of motive for the crime. All that he has stated is that there might be a telegram sent to the police and the contents of that telegram might have been mentioned by his brothers in law. It is in these circumstances that his version is not enough to arrive at a conclusion of motive for the crime. Similar is the case with regard to the evidence of PW20. Mr. Mundargi criticized the approach of the learned Judge in relying on the evidence of the wife of deceased Inder, Rekha. She has also not stood by her stand before the police. She has specifically denied of being aware of any police protection sought by her husband. It is in these circumstances that Mr. Mundargi submits that if the version ofPW26A, the surviving brother of the deceased is considered firstly that is a very belated version. Secondly, all that he has referred to is the incident of 27th Novcmber, 1987 and 27th February, 1990. The gap or time period between these two incidents is more than two years. If there was a reign of terror and unleashed by A1, then, there could have been series of altercations and exchanges as both families were involved in political activities. Both families were supporting the then major political parties. They being well known in social and political circles so also having diverse business interests, then in a place like Ulhasnagar, there could have been occasions when they clashed with each other. The only two incidents are in the context of the murder of Dulichand and the elections in February, 1990. However, the version of Kamal was common to that of Sunderlal PW12 the father. However, the threat given to Inder and after Ghanshamdas's alleged murder is not proved as the complaint or copy thereof has not been marked in evidence. The learned Judge has termed this document which is marked Article 'B' as Exhibit but the prosecution has not taken any steps to prove the contents thereof. Sundarlal who supposed to be the author of complaint but he has denied of having made it. All that has been proved is a signature below the copy of the said complaint but that is restricted to Sundarlal's signature on a copy of the complaint and does not prove the contents thereof. The proof of existence of a document is distinct from the proof of contents thereof. All that has been proved is a signature below the copy of the said complaint but that is restricted to Sundarlal's signature on a copy of the complaint and does not prove the contents thereof. The proof of existence of a document is distinct from the proof of contents thereof. The proof of contents has to be independently led. That has not been tendered at all. In these circumstances, the motive for the crime is not established and proved at all. Mr. Mundargi then submitted that PW26A has not been able to prove the threat and terror and rather his version would demonstrate as to how he has a definite intent to depose against A 1. Firstly, he is brother of two murdered victims. Accused No.1 is a common accused in both criminal cases. Kamal PW26 is a witness in both. The tendency is to get over and improve upon the deficiency and lapse the evidence recorded in relation to the other crime viz. murder of Ghanshyam. Further, the conduct of this witness needs to be considered in as much as if he was indeed threatened and apprehended some danger to his life and property by A 1, nothing prevented him from making a complaint to the police in writing and sending it by post. Therefore, his is a false version and goes on to state that none was willing to record any statement and no police officer would come forward and proceed against A 1. The version of this witness is, therefore, imaginary and full of omissions and contradictions. He is, thus, no witness to prove the motive for the crime.