Judgment

M.K. Mukherjee, J.-Ravindra @ Ravi Bansi Gohar and Keshya & Kishore Amarsingh Maheshkar, the appellants in these two appeals, along with two others were arraigned before an Additional Sessions Judge of Greater Bombay to answer charges of rioting, two murders and other cognate offences. The trial ended in conviction of each of the appel­lants for those offences and sentence of death, imprisonment for different terms, including life, and fine. Against their convictions and sentences they preferred an appeal before the High Court, which was heard along with the case arising out of the statutory reference made by the trial Judge under Section 366 Cr.P.C. In disposing of the reference case and the appeal by a common judgment, the High Court affirmed the convictions and sentences of the appellants and set aside those of the other two. Hence this appeal.

2. Shorn of details, the prosecution case is as under:

(a) On March 5, 1987 at or about 3.30 a.m. a number of persons were found approaching Satrasta police lock up of Agripada Police Station through an opening in the compound wall and hurling country-made bombs. One of the bombs hit and injured Manaji Mani, who was at the police post (guard chowki) near the lock up. Thereafter four of them, who were carrying fire-arms, came to the front entrance of the lock up where Uttam Vishnu Gharte, (P.W. 2), a police Naik, was on duty. They asked him to hand over the keys of the lock up but on his refusal to do so inspite of threats meted out to him, they retreated a few steps and hurled bombs towards the iron wire mesh which was in front of cell No. 1 on the ground floor of the lock up. Through that wire mesh they then fired in the direction of cell No. 1. Thereafter they entered the gate, went inside through the rear lobby of the lock up, and one of them broke open the lock of the gate of the front lobby. All of them then entered through that gate and went to cell No. 1 wherein one Babu Gopal Reshim, a suspect was detained. After firing at him - which resulted in his instantaneous death-they came back shouting some slogans. At the time of retreat they also threw bombs in the area under the staircase which is treated as resting room of the guards. In the process a number of police constables sustained in­juries. All the miscreants then ran away towards Sane Guruj Path.

(b) On getting information of the incident over phone Shri Zende (P.W. 17), Officer-in-charge of Agripada Police Station rushed to the lock up. After making a preliminary survey of the scene of crime he recorded the statement of P.W. 2, wherein he, besides detailing the incident, stated that he could identify Vijaya and Keshya as two of the miscreants. On that report (Ext. 24), P.W. 17 registered a case and took up investigation. He prepared a panchnama of the articles found there which included five live bombs and bullets. He also pre­pared a sketch map of the scene of offence. In the meantime he had arranged to sent the injured constables, including P.W. 2 and Ahire, to the hospital for treatment and the dead body of Babu Gopal Reshim for post mortem examination, after holding inquest. While in the hospital Ahire succumbed to his injuries.

(c) In course of investigation three of the accused persons including the two appellants were arrested on June 29, 1987 and they were placed in two Test Identifications (T.I.) parades which were held on July 8, 1987 by Shri L.J. Parikh (P.W. 18), Special Executive Magis­trate. In those parades P.W. 2 identified both the appellants and accused Rajendra (since acquitted) and constable Ashok Dinkar Chakranarayan (P.W. 12) identified appellant Ravi. Accused Vinod Bhika Maria (since acquitted), who was arrested after charge sheet was filed against the former three accused, was also placed in a T.I parade in which constable Chandrakant S. Sawant (P.W. 4) identified him as one of the miscreants. Thereafter a supplementary chargesheet was fi