JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 1 IN THE COURT OF SPECIAL JUDGE DESIGNATED UNDER MCOC ACT AT GR. MUMBAI. MCOC SPECIAL CASE NO. 7 OF 2008 ALONG WITH SPECIAL CASE NO.16 OF 2008 ALONG WITH SPECIAL CASE NO.3 OF 2009. ALONG WITH SESSIONS CASE NO.529 OF 2007. The State of Maharashtra. ... Complainant V/s. 1. Arun Gulab Gawali. ) Age: 58 years. ) R/o. Geetai Co-op. Hsg. Society, ) 3 rd floor, Bapurao Jagtap Marg, ) Byculla, Mumbai 400 011. ) ) 2. Vijaykumar Harihar Giri. ) Age: 30 years. ) R/o. Sonu Bhoir Chawl, Shivdevi Sadan, ) Kokanipada, Dahisar (E), Mumbai. ) ) 3. Ashokkumar Shivkant Jaiswar. ) Age: 23 years. ) R/o. Munshi Mahal, Shankar Sheth Chawl, ) Room No. 2, Pratap Nagar Road, ) Bhandup (W), Mumbai 400 078. ) ) 4. Narendra @ Kandi @ Guddu Lalmani Giri. ) Age: 23 years. ) R/o. Pande Compound, Hanuman Tekdi, ) Near Yadav Tabela, Kajupada, ) Dahisar (E), Mumbai. ) ) 5. Anil Sherbahadur Giri. ) Age: 26 years. )
Arun Gawli has been the 1st Convict among the underworld dons of Mumbai to be convicted. The MCOCA Court, Mumbai has sentenced gangster-turned-politician Arun Gawli to life imprisonment for the March 2008 murder of Shiv Sena corporator Kamlakar Jamsandekar
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JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 1
IN THE COURT OF SPECIAL JUDGE DESIGNATED UNDER MCOC ACT
21. Ganesh Krishna Salvi. )Age: 42 years. )R/o. Patel Chawl, Room no. 7, )Subhash Nagar, Asalpha Village, )Ghatkopar, Mumbai 400 084. )... Accused. Mr. Raja Thakare, learned Special P.P. for the StateComplainant.
Mr. Sudeep Pasbola, learned advocate for Accused nos. 1 to 3 and 7,11,14 & 16.
Mr. Nitin Sejpal, learned advocate for Accused nos. 4, 5 and 10.
Mr. Girish Kulkarni, learned advocate for Accused no.6.
Mr. Avinash Rasal, learned advocate for Accused nos. 8,12,13, & 16.
Mr. H.E. Moomen, learned advocate for Accused no.9.
CORAM: HIS HONOUR THE SPECIAL JUDGE SHRI P.K. CHAVAN.
DATED: 31ST AUGUST, 2012.
JUDGMENT (DELIVERED ON 31ST AUGUST, 2012)
1. A sitting Corporator namely Kamlakar Jamsandekar was
shot dead in a broad day light at his home by some unidentified persons
who were hired by the henchmen of Arun Gawali, who was then a
sitting MLA of 'Akhil Bhartiya Sena', a kingpin of an organized crime
syndicate.
2. The prosecution case, in short, as emerged from the record
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 5
filed by DCB,CID, Unit III can be stated as follows:
3. The accused, hereinabove stand charged by DCB,CID,
Mumbai alleging that the accused nos. 1, 9, 10, 12, 13, 15 and 20 were
members of an organized crime syndicated headed by A1 Arun Gawali
who is a MLA of his party viz. Akhil Bhartiya Sena. Accused nos. 1 to 7
and accused nos. 10, 12 and 13 hatched a conspiracy to kill the
deceased Kamlakar Jamsandekar, a sitting Corporator of a political
party known as 'Shivsena'. As such, the deceased Kamlakar
Jamsandekar was shot dead on 2nd March 2007 by A2 Vijaykumar Giri
with a country made handgun when the deceased was at his home. It
is also the case of prosecution that accused nos. 2 to 4 committed the
offence at the behest of organized crime syndicate headed by A1 Arun
Gawali, who, by accepting Rs.30 lakhs from accused nos. 6 and 7
through A12 Pratap and A13 Rane accepted a 'supari' (a contract to
kill) to eliminate Kamlakar Jamsandekar due to political rivalry. It is
alleged that in the said meeting,A1 Arun Gawali alleged to have
assured A6 Sahebrao Bhintade and A7 Sadashiv Surve by saying not to
worry and the work of Jamsandekar will be done.
4. It is the case of prosecution that deceased Kamlakar
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 6
Jamsandekar was contesting an election of Corporator which was held
on 1.2.2007. One of the contestant was A13 Ajit Rane, a nominee of
Akhil Bhartiya Sena. Jamsandekar was declared elected in the said
election. In this background, on 4.2.2007, A12 Pratap Godse, A13 Ajit
Rane, A21 Ganesh Salvi and Pravin Marathe started discussing about
the reason as to why A13 Ajit Rane could not secure expected number
of votes. They believed that some mischief had been played in the
election i.e. in the electronic voting machine. A13 Ajit Rane suggested
that Kamlakar Jamsandekar should, therefore, be killed. A12 Pratap
Godse also alleged to have stated that he was also willing to participate
in the killing of Jamsandekar.
5. Deceased Kamlakar Jamsandekar was residing at Rumani
Salvi appeared before my predecessor Mr. R.G. Avachat on 7th October
2008, who framed a charge below Exh. 133 against them under
Sections 3(1)(i), 3(1)(ii), 3(2) and 3(4) of MCOC Act and u/s. 120B,
452, 302 r/w 34 of IPC r/w Section 3 r/w 25 and 27 of Arms Act under
different heads.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 21
31. The charge was read over and explained to the aforesaid
accused to which each of them pleaded not guilty and claimed a trial.
32. The pleas are recorded at Exh. 134 to 149. The prosecution
has furnished list of witnesses Exh. 150. The list of documents Exh. 151
and list of Articles 152.
33. The defence of all the accused is that of denial of the
commission of offences alleged.
34. The A1 Arun Gawali in his statement under Section 313 of
Cr.P.C. has stated that he has been falsely implicated due to a political
rivalry. He was neither the head of any organized crime syndicate nor
accepted the contract i.e. 'supari' to kill Jamsandekar. He further states
that he is a political leader as well as a MLA and Chief of Akhil Bhartiya
Sena. He contested elections of Lok Sabha and Legislative Council
wherein he secured 92,000 votes. In order to defeat him and his party
and to stall his progress in the political field, he has been falsely
implicated in this case. Cases are filed against him in order to keep him
away from elections. It is, however, surprising that A1 Arun Gawali has
not named any particular party who is said to have implicated him in
this case.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 22
35. A2 Vijaykumar Giri vide application Exh. 504A furnished
photostat copies of applications addressed by him to the Hon'ble the
Chief Justice of the Bombay High Court and the Registrar General dated
17.10.2008 in which he mainly put forth his grievance as to how he was
physically tortured by the police when he was arrested in the midnight
of 24.4.2008 from his house. He alleged that he was kept in the lockup
of DCB,CID, Unit No. III. He had requested to conduct an inquiry in the
said matter.
36. A3 Ashokkumar Jaiswar has filed an application Exh. 505A
along with photostat copy of an application by him stating therein that
he had not made any confessional statement and that he was forced to
file the same. He had been physically tortured to sign some papers or
purported to be his confessional statement.
37. A5 Anil Giri has also filed a photostat copy of his
confessional statement that he did not make any such statement and
that the signature was obtained on a paper which was already written.
He does not know anything about the murder of Kamlakar
Jamsandekar.
38. A6 Sahebrao Bhintade in his application Exh.508A has
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 23
stated that when he was arrested in MCOC Special Case No. 7/2008 by
the Crime Branch, he had stated before the officers namely Mr. Ninad
Sawant, Mr. Dinesh Kadam, Mr. Shelke and Mr. Yogesh Chavan that he
is ready to undergo brain mapping or any other test, but they refused by
saying that they knew about his noninvolvement in the offence, but
due to the pressure from superiors, they arrested him. He has been
falsely implicated in this case by the President of Nationalist Congress
Party of Mumbai namely Mr. Sachin Ahir because he was Vice President
at that time in NCP, but subsequently, he joined Shiv Sena and,
therefore, some leaders of NCP along with Sachin Ahir falsely
implicated him in this case due to political rivalry.
39. A7 Sadashiv Dhondu Surve has stated in his statement
under Section 313 of Cr.P.C. that he and deceased were thick friends.
He was shocked by his murder. However, he continued cordial relations
with his widow and family and also attended his funeral and helped his
wife in byeelections. He had further stated that widow of the deceased
had attended his daughter's marriage. The police and some mischief
mongers in the locality were jealous of his success and, therefore, had
falsely implicated in this case. Those persons polluted the mind of P.W.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 24
1 and P.W. 2 so as to make them believe that he was responsible for the
murder of deceased Kamlakar Jamsandekar. He had further stated that
he had nothing to do with the murder of the deceased to whom he had
already indebted for naming the garden on the plot donated by him in
the name of his late mother.
40. A9 Sandip Baliram Gangan in his application at Exh. 510A
has stated as to how he was physically tortured and subjected to electric
shock and assault by belt by the police officers. He alleged that his
signatures were obtained on some blank and written papers. He has
tremendous fear in his mind due to the terror of the police. He further
stated that he was warned not to complain about the illtreatement to
the court. Before producing before the Magistrate, he was subjected to
electric current and physical assault. He was warned to answer in
affirmative, but should not say anything about the police.
41. A12 Pratap Godse in his application at Exh. 513A & B has
stated that the officers of Crime Branch, Unit III did not allow him to
express his desire to address the court and to tell the fact of his
innocence. He was arrested by the Crime Branch officer without giving
any idea and had rearrested him though he was released on bail in C.R.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 25
No. 82/2007. In his additional statement at Exh. 513B, A12 Godse
had stated that A9 Sandip Gangan has stated in his confessional
statement that he read in the newspaper after twenty days of
Mahanagar Telephone Nigam Ltd. elections, about the news of murder
of Kamlakar Jamsandekar. In fact, the murder was committed on 2nd
March, 2007, then how could A9 Sandip Gangan read the newspaper
about the said murder which in fact occurred before one and half
month. This shows that his confession has been falsely recorded only to
implicate this accused in Crime No.69/2008 by the Crime Branch
officer. He claims to be totally innocent and nothing to do with the
case.
42. A13 Ajit Rane states that he had contested election for
Corporator on behalf of Akhil Bhartiya Sena of A1 Arun Gawali and,
therefore, he has been falsely implicated in this case.
43. A15 Suresh Patil in his statement at Exh. 515A stated that
he had never absconded, but had been to Krishna Hospital and Research
Centre at Karad where his aunt and nephew were admitted due to
accidental injuries on 13th June 2008. In support of the same, he has
filed a certificate issued by the Department of Neurology of Krishna
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 26
Hospital, Karad and a certificate issued by the Assistant Police Inspector,
Kasegaon police station indicating the accident in which the aunt and
nephew of this accused were injured along with the panchanama. He
has further stated that he is not at all concerned with the present crime
nor he is a member of Akhil Bhartiya Sena of A1 Arun Gawali or the
organized crime syndicate. He had not given any confession voluntarily
though he admits that he is a resident of Dagdi Chawl. He has further
stated that during police custody, he was subjected to electric shock to
his ears and private part by the police who directed him to simply sign
the papers which would be placed before him. Due to the fear of
tremendous physical torture meted out to him, he put signatures on
some blank papers. He was produced in veil before the Sr. Officer to
whom he tried to narrate his plight, but it was not heard. When he was
produced in the Court and there were no police officers, he informed
the court about the fact and that his unwillingness to give any
confessional statement. He is innocent and, therefore, prayed for his
acquittal.
44. It is urged by the defence that prosecution has failed to
establish any motive behind the murder of Kamlakar Jamsandekar.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 27
Secondly, there are two contradictory theories put forth by Investigating
Officer of Sakinaka police station who filed the earlier chargesheet
bearing in Sessions case bearing No. 529/2007 and another theory by
the Crime Branch which are inconsistent.
45. No defence evidence has been adduced on behalf of any of
the accused.
46. The learned SPP Mr. Raja Thakare has submitted his
memorandum of arguments.
47. The learned counsel Mr. Pasbola for Accused nos. 1, 2, 3, 7,
9, 10, 11, 15 and 20 has also submitted his memorandum of arguments
which is at Exh. 533.
48. The learned counsel Mr. Rasal for Accused nos. 8, 12, 13
and 21 has submitted the notes of arguments at Exh. 534.
49. The learned counsel Mr. Kulkarni argued orally on behalf of
Accused no. 6. While learned counsel Mr. Sejpal argued on behalf of
Accused nos. 4, 5 and 10.
50. In the light of rival submissions at bar, following points arise
for my determination. I record my findings with reasons therefor as
stated hereinbelow:
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 28
P O I N T S F I N D I N G S
1. Whether it is proved by the prosecution that deceased Kamlakar Jamsandekar died a homicidal death on 2.3.2007?
In affirmative
2. Whether it is proved by the prosecution that such death of deceased Kamlakar Jamsandekar had been caused by or in consequence of the act of A2 Vijay Giri, A3 Ashokkumar Jaiswar, A4 Narendra Giri and A5 Anil Giri, in furtherance of their common intention pursuant to a criminal conspiracy hatched to that effect by A6 Sahebrao Bhintande, A7 Sadashiv @ Bala Surve, A10 Shrikrishna @ Babu Gurav, A12 Pratap Godse, A13 Ajit Rane and A15 Suresh Patil?
In affirmative
3. Whether it is proved by the prosecution that A2 Vijay Giri, A3 Ashokkumar Jaiswar & A4 Narendra Giri in furtherance of their common intention trespassed into the house of the deceased Kamlakar Jamsandekar situated at Rumani Manzil, Chawl No. 1, Room No. 7, Asalfa Village, Mohili Pipe Line, Ghatkopar, Mumbai 400 084?
In affirmative
4. Whether it is proved by the prosecution that A2 Vijay Giri used a country made firearm i.e.
In affirmative
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 29
handgun to commit murder of deceased Kamlakar in contravention of the provisions of Arms Act?
5. Whether it is proved by the prosecution that A1 Arun Gawali, A6 Sahebrao Bhintade, A7 Sadashiv @ Bala Surve,A9 Sandip @ Sandy Gangan, A10 Shrikrishna @ Babu Gurav, A12 Pratap Godse, A13 Ajit Rane and A15 Suresh Patil, being the members of organized crime syndicate, abetted the murder of Kamlakar Jamsandekar ?
In affirmative
6. Whether it is proved by the prosecution that A1 Arun Gawali, A6 Sahebrao Bhintade, A7 Sadashiv @ Bala Surve,A9 Sandip @ Sandy Gangan, A10 Shrikrishna @ Babu Gurav, A12 Pratap Godse, A13 Ajit Rane and A15 Suresh Patil, being the members of organized crime syndicate, conspired and/or to commit the organized crime to wit to commit the murder of Kamlakar Jamsandekar for gaining pecuniary benefit or undue economic advantage?
In affirmative
7. Whether it is proved that A1 Gawali, A9 Sandip @ Sandy Gangan, A10 Shrikrishna @ Babu Gurav, A12 Pratap Godse, A13 Ajit Rane, A15 Suresh Patil and A20 Sunil Ghate being the members of organized crime
In affirmative
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 30
syndicate headed by A1 Arun Gawali indulged in criminal unlawful activities from the year 20042008 in an organized manner to gain undue economic advantage or monetary benefits by extorting builders, cable operator after extending threats and A20 Sunil Ghate used to look after the affairs of the organized crime syndicate during the detention of A1 Arun Gawali in jail?
8. Whether it is proved by the prosecution that A8 Surendra Panchal, A10 Shrikrishna Gurav, A11 Dinesh Narkar and A12 Pratap Godse have committed an offence in contravention of the provisions of the Arms Act?
In negative
9. Whether it is proved by the prosecution that A8 Surendra, A11 Dinesh and A21 Ganesh Salvi are the members of an organized crime syndicate and that they have committed any offence in view of Section 3(1)(i), 3(2) and 3(4) of MCOC Act?
In negative.
8. What offences have been proved against the accused?
As above
9. what order? As per final order.
R E A S O N S
51. POINT NO.1: The evidence of P.W. 21 Motiram Nivrutti
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 31
Kasar Exh.272 who was attached to Sakinaka police station as a police
inspector, received a message at about 4.58 p.m. that Municipal
Corporator Kamlakar Jamsandekar of Shiv Sena Party was shot dead at
his residence. The message was passed to him by P.W. 32 P.I. Kirtawde
and Sr. Inspector Khandagale, pursuant to which they rushed to the
scene of occurrence in different vehicles. On their way, the witness took
a photographer from a photo studio. When he reached on the spot, he
noticed deceased Kamlakar Jamsandekar lying in a plastic chair with his
back towards the entrance door and head leaned towards left. He also
noticed a bleeding injury on the left temporal region and a pool of
blood on the floor. Without disturbing the situation, he got the
photographs snapped through the photographer and thereafter,
immediately rushed Kamlakar Jamsandekar to the hospital in a mobile
van no.1.
52. P.W. 22 Dr. Eknathrao Bansude Exh. 279, was attached to
Grant Medical College, J.J. Hospital at the relevant time in the
Department of Forensic Medicines. His evidence reveals that he
conducted autopsy on the corpse of deceased Kamlakar Jamsandekar on
2.3.2007, along with Dr. A.S. Gawde, Medical Officer, Police Hospital,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 32
Mumbai. Police constable bearing No. 28860 and Mortuary attendant
on duty identified the dead body. The body was received at 8.45 p.m.
and postmortem commenced at 9.30 p.m. He testified that it was a
firearm injury. Rigor mortis was present in lower limb. No signs of
decomposition seen, postmortem lividity was present but not fixed.
There was a evidence of oozing of blood from both ears. He also
noticed the following surface injuries:
Firearm wound of entry of size 3 X 2.5cm present on left side
temporal region in front of left tragus of ear, 4 cm lateral to lateral
angel of left eye and 8cm upward from lateral angle of the mouth.
Blackish discoloration around the wound, within 3cms from the
margin inverted (Reddish).
I) Internal injuries :
1. Contusion of size 6 cm on frontal region round shaped red colour
under the scalp.
2. Contusion of size 16 X 10 cm on left temporal parieta ociptal
region red colour,
3. Evidence of haematoma under the temporalis muscle seen.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 33
II) Fracture of skulls:
a) A fissured fracture of 25 cm going from left temporal bone to left
middle cranial fossa to right middle cranial fossa to right temporal bone.
b) Communicated fracture of base of skull.
c) A fissured fracture 8 cm long going from left parietal protuberance
to left middle cranial fossa.
4) A fissured fracture on right parietal protuberance going to right
middle cranial fossa.
5) Two fissured fractures present on frontal bone 6 cm each.
Brain :
Multiple pellet were found in right temporal lobe of brain
abundantly.
Few pellets were found in occipital lobe of brain.
Few pellets were found in frontal lobe of brain.
Few pellets were found underneath the mouth cavity and nasal
cavity.
A sand clock shaped wad of size 4 cm X 2 cm found in brain
matter.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 34
Gray matter and white matter of brain were crushed due to
traversing of pellets in brain.
Multiple hemorrhages seen at places along the tract of pellets in
the brain.
80cc blood was seen in the cavity.
Viscera was preserved for chemical analysis. Blood preserved for
CA and grouping. Head wash preserved for CA. Skin peace and wad
and pellets were preserved for Ballistic examination.
53. The medical expert has proved the PM notes which are in
his handwriting and in handwriting of Dr. Gawde which bears their
signatures and it marked Exh. 281. The photographs snapped at the
time of conducting postmortem are at Exh. 282 (colly.). As such, there
is no dispute that deceased Kamlakar Jamsandekar died a homicidal
death on 2.3.2007.
54. The learned counsel Mr. Pasbola has extensively cross
examined this witness on various aspects such as about the injury marks
caused due to firearm. He has confronted the witness with page nos.
716, 721 and 722 of the Mody's 23rd Edition of Medical Jurisprudence.
The witness in his crossexamination admits that he had conducted
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 35
about 2025 postmortem of firearm injuries. Thereafter, he was
mainly questioned about the procedure being followed at the time of
conducting postmortem, preparation of postmortem notes, obtaining
photographs and xrays which are not much relevant in so far as the
cause of death is concerned. Certain questions were asked on the
aspect of tattooing and blackening in case of firearm injuries which
were appropriately answered by the witness by saying that he is aware
of the fact that blackening is caused by smoke and tattooing is caused
by unburnt grains of gun powder. It is nobody's case that the death of
Kamlakar Jamsandekar was either accidental or suicidal and, therefore,
it is needless to go into other aspects which are brought in by the
defence counsel. This can be considered at the time of evaluating the
evidence of ballistic expert. Suffice it to say at this stage that deceased
Kamlakar Jamsandekar died a homicidal death due to a firearm injury.
The point is, therefore, answered in the affirmative.
55. In order to prove the charges against the accused persons,
prosecution has examined as many as 37 witnesses. Before analysing
the evidence adduced by the prosecution, it would be convenient to
have a broad look to the nature of evidence adduced by the prosecution
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 36
to substantiate the guilt. The following chart would make it convenient
to understand the details of witnesses and the nature of their evidence:
PW
No. Name of the
witness
Nature of evidence
1 Komal Jamsandekar P.W.1 Komal Jamsandekar,
Widow of the deceased deoised
regarding motive/role of A6
Sahebrao Bhintade and A7
Sadashiv Bala Surve.2 Nilkantha Bane Secretary of the deceased
Kamalakar Jamsandekar spoke in
tune with P.W. 1 Komal
Jamsandekar.3 Ramesh Balu Patil Pancha Witness to the
Panchanama to the Scene of
Offence (Exh. 165 colly). 4 Abdul Raheman @
Addu
He talks about A12 Pratap
Godse, in presence of A13 Ajit
Rane asking him to show
deceased Kamalakar
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 37
Jamsandekar and his house to
those assailants viz. A4
Narendra Giri and A5 Anil Giri. 5 Pradeep Shinde This witness was offered Rs. Two
Lakhs and a revolver by A12
Pratap Godse for eliminating
Kamalakar Jamsandekar,
however in consultation with
A11 Dinesh Narkar he spun the
offer for want of adequate
consideration 6 Arun Kumar Singh A Cable Operator and a victim of
extortion by members of the
Organized Crime syndicate
headed by A1 Arun Gawali @
Daddy operating from Dagadi
Chawl, Bhyculla. 7 Manali
Chavan/Hire
Complainant and eye witness
who identified the assailants viz.,
A2 Vijay Giri and A4 Narendra
Giri in the TI Parade held by PW
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 38
24 SEO Dattaram Kambli as well
as identified the both in the
Court.8 Narendra Panchal Brother of A8 Surendra Panchal,
who talks about A8 Surendra
Panchal repairing and dealing in
arms.9 Amrut Patil Panch of recovery of the diaries
containing the account details or
Organized Crime syndicate of
Arun Gawali recovered U/Sec.
27 of the Evidence Act at the
instance of A15 Suresh Patil
from the house of PW 10 Ankush
Gharkar. 10 Ankush Gharkar A resident of Dagadi Chawl from
whose house the diaries of the
accounts of Organized Crime
syndicate were recovered at the
instance of A15 Suresh Patil this
witness is declared hostile by the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 39
Prosecution.11 Ramchandra @
Dhaktya Gurav
A relative of A10 Shrikrushna @
Babu Gurav who arrange for the
weapon used in the crime
(Article 5) from A8 Surendra
Panchal at Rajapur at the
instance of A12 Pratap Godse
and identifies A12 Pratap
Godse, A13 Ajit Rane, A8
Surendra Panchal, A10 Babu
Gurav and A11 Dinesh Narkar in
the Court.12 Motilal Chaudhary Owner of Kamla Aahar Gruh at
Asalfa Village, near the vicinity
of deceased Kamalakar
Jamsandekar who identifies A2
Vijay Kumar Giri, A3 Ashok
Kumar Jaiswar, A4 Narendra
Giri and A5 Anil Giri as the
persons who used to come to his
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 40
hotel Kamla Aahar Gruh during
the period of February 2007 till
murder of Kamalakar
Jamsandekar on 2nd March 2007. 13 Shridhar Munj
(Ballistic Expert)
Who proved CA report regarding
weapon used in the commission
of murder as also Scarbutt
(Article 1) to be part of
Handgun (Article 5) The wad
and pellets recovered from the
head of the deceased and
reported about close range firing
from a 12 bore country made
Handgun. 14 Anjali Badade
(Expert)
She has examined and opined
that the Scarbutt (Article 1)
matches and fit with the
Handgun (Article 5).15 Rajendra Dabhade DCP who recorded voluntary
confession statement of Accused
No. 4 Narendra Giri (Exh.214)
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 41
16 PI Sadanand Rasam He had filed the previous two
Chargesheets against Accused
No. 1 Arun Gulab Gawali in the
year 2004 (Exh. 218 & 219)
which are considered as previous
Chargesheets for invocation of
MCOCA to the case.17 Vinoy Kumar
Choubey
DCP who recorded voluntary
confessional statement of A3
Ashok Jaiswar (Exh. 227)18 Dilip Sawant DCP who recorded voluntary
confessional statement of A15
Suresh Patil (Exh. 241)19 Dyaneshwar
Phadtare
DCP who recorded voluntary
confessional statement of
Accused No. 10 Babu Gurab
(Exh. 251) (ADMITTED
BEFORE CMM)20 Yadav Dhum DCP who recorded voluntary
confessional statement of A11
Dinesh Narkar (Exh. 264)21 PI Motiram Kasar The Investigating Officer of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 42
Sakinaka Police Station and
drawn the Panchanama of scene
of offence (Exh. 165) recovering
Scarbutt (Article 1) and obtained
the Photographs (Exh. 163
colly.) of the Scene of Offence
and subsequently, filed the initial
Chargesheet against seven
accused persons.22 Dr. Bansude
(Expert)
The Medical Officer/Doctor who
performed the postmortem on
the dead body of Kamalkar
Jamsandekar and simultaneously,
took the Photographs (Exh. 282
Colly) 23 Vijay Singh Jadhav DCP who recorded voluntary
confessional statement of A5
Anil Giri (Exh. 289) and also
accorded sanction under the
Arms Act (Exh. 297)24 Dattaram Kambli SEO who conducted TI Parade
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 43
(Exh. 301) in which witness PW
7 Manali Hire identified A2 Vijay
Giri and A4 Narendra GIri and
PW 12 Motilal Chaudhary who
identified A2 Vijay Kumar Giri,
A3 Ashok Kumar Jaiswar, A4
Narendra Giri and A5 Anil Giri.25 Vishwanath Hinge A resident of Dagadi Chawl who
used to write the account books
recovered under Panchnama
(Exh. 183) from the house of
PW 10 Ankush Gharkar at the
instance of A15 Suresh Patil.
This witness is declared hostile. 26 Ashish Shukla A Panch witness to the recovery
of Handgun without Scarbutt
(Article 5) and other articles
from the possession of A2 Vijay
Kumar Giri, A3 Ashok Kumar
Jaiswar, A4 Narendra Giri and
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 44
A5 Anil Giri under Panchanama
(Exh. 311).27 API Ajay Joshi The Officer who arrested A2
Vijay Kumar Giri, A3 Ashok
Kumar Jaiswar, A4 Narendra
Giri and A5 Anil Giri and drew
the Panchanama (Exh. 311) in
which Handgun without Scarbutt
(Article 5) was recovered from
the possession of A2 Vijay Giri.28 Mahesh Shah Owner of Hetal Photo Studio
who used to pay ransom amount
to the members of Organized
Crime syndicate headed by A1
Arun Gawali operating from
Dagadi Chawl, Byculla.29 Brijesh Singh DCP who recorded voluntary
confessional statement of A9
Sandip Gangan (Exh. 324)
(ADMITTED BEFORE CMM)30 Charls Daniel The Nodal Officer of Vodafone
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 45
who produced the original
Customer Application Forms of
mobile no. 9819251750 in the
name of A10 Shrikrushna Gurav
(Exh. 408 Colly)31 Ramesh Bhokare The Constable who was the
member of raiding party
arresting A2 Vijay Kumar Giri,
A3 Ashok Kumar Jaiswar, A4
Narendra Giri and A5 Anil Giri,
in which Handgun without
Scarbutt (Article 5) was
recovered from the person of A2
Vijaykumar Giri. He gave his FIR
(Exh. 314) and made Station
Diary Entry (Exh. 316 colly).32 Arun Kirtawade The Officer attached to Sakinaka
Police Station at relevant time
who recorded FIR of PW 7
Manali Hire (Exh. 177)33 PI Diwakar Shelke He is initial Investigating Officer
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 46
of Crime Branch before applying
MCOCA and he sent a proposal
and obtained Prior Approval
(Exh. 421)34 Prashant Gorde Witness from Tata Teleservices
(Maharashtra) Ltd. who
produced Call Detail Records
(CDRs) (Exh. 426 & Exh. 427
colly) which reflect
communication between A2
Ashok Jaiswar, A5 Anil Giri, A8
Surendra Panchal, A10 Babu
Gurav, A12 Pratap Godase and
A13 Ajit Rane as also their Call
Tower Location at relevant time. 35 Shekhar Palande Nodal Officer of Tata Teleservices
who produced Compact Disk
(CD) containing Electronic Data
of Cell Site ID Address of
respective Cell ID Numbers
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 47
(Mobile Tower Locations) of Tata
Teleservices's Customers (Exh.
436) and Original Customer
Application Forms of A12 Pratap
Godase, A3 Ashok Jaiswar and
in respect of mobile no.
9224770420 which was being
used by A8 Surendra Panchal
(Exh. 432, Exh. 433 & Exh. 434
colly) 36 Hasan Gaffur Then Commissioner of Police
who were also present. They were introduced to each other.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 67
Thereafter, P.W. 33 Mr. Shelke introduced P.W. 24 Dattaram Kambli with
P.W. 12 Motilal and others. All of them were taken to Arthur Road Jail.
At the gate of the jail, all of them got down from the vehicle. API Mr.
Shelke placed some documents in the custody of P.W. 24 Kambli and left
the place. All of them entered the Arthur Road jail. In the jail, the girl
i.e. P.W. 7 Manali and this witness were asked to be in one room. After
ten minutes, one of the two panchas took P.W. 7 Manali to another
room. After 15 minutes, the same panchas took P.W. 12 Motilal to one
large room. He locked the door. Another panch opened the door. P.W.
12 Motilal and the first panch entered the room. P.W. 24 Kambli, the
SEO was present there. There was a row of 14 persons. P.W. 24 Kambli
called upon P.W. 12 Motilal to identify the four who used to come to his
hotel from amongst the 14 in the row. P.W. 12 Motilal deposed that he
identified two persons in the row who used to come to his hotel to take
breakfast and lunch. The two told their names to P.W. 24 Kambli as
'Giris' P.W. 24 Kambli made some writing and then the same panch took
him to back to the room where he was kept. He testified that P.W. 7
Manali was not in the room. After half and hour again the same panch
took P.W. 12 Motilal to the same room. P.W. 24 Kambli was present.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 68
There was a row of 14 persons different from the earlier 14 persons.
P.W. 24 Kambli again called upon P.W. 12 to identify remaining two
suspects who used to visit his hotel. P.W. 12 Motilal thereupon
identified two more persons. One of them was of height of 5.10” with
wheatish complexion. The other was short one and some what of dark
complexion. On being asked by P.W. 24, they told their names as Giri
and Jaiswar respectively. The panch took P.W. 12 Motilal to the gate of
the jail and was asked to go back. At the gate, he returned the token to
the gateman. Outside the gate, P.W. 33 Officer Shelke was present
along with girl i.e. P.W. 7 Manali. Thereafter, they were taken to the
Office of Crime Branch. Thereafter, statement P.W. 12 was recorded.
This witness has identified A2 Vijay Giri, A5 Anil Giri, A3 Ashokkumar
Jaiswar and A4 Narendra Giri from amongst the four in the dock. He
deposed that these four persons used to come to his hotel to take
breakfast and lunch and that they stopped visiting his hotel from the
very next day of the murder of Kamlakar Jamsandekar.
69. This witness was also subjected to searching cross
examination by the learned counsel Mr. Pasbola. The questions on the
point of T.I. parade are similar to that of put to P.W. 7 Manali which
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 69
mainly pertained about the manner in which T.I. parade was conducted
by P.W. 24 Kambli and about the topography of the room where the
parade was conducted. During his crossexamination, P.W. 12 Motilal
deposed that in 2008, he had closed the hotel Kamla Aahar Gruha as it
was taken by him on rent. Deceased Kamlakar Jamsandekar had never
been to his hotel in connection with his election. He deposed that shops
and hotels of the ward were closed on the day of assassination of
Kamlakar. He did not visit the house of the deceased to offer
condolence nor did he attend funeral. He admits that there was heavy
Bandobast of police in the ward at the relevant time. There were 78
employees in his hotel out of which three of them were waiters. He
candidly admits that even on the day of incident, he did not suspect
those four persons. There is a police chowky at about 150 feet away
from his hotel. He further deposed that from the movements of those
four persons, he did not suspect them nor had there been any suspicion
when they stopped visiting the hotel. This witness being a hotelier, it
would hardly come to his mind that those four persons were conspiring
or planning to kill the Corporator of his ward. The crossexamination
further reveals that an officer of Crime Branch had been to his hotel in
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 70
the month of June 2008. When the police were enquiring in the
neighbourhood of his hotel then he realized about those four unknown
persons visiting his hotel. He admits that till that day, the police did not
visit the area surrounding his hotel for enquiring about the incident. He
was not aware about the arrest of some persons in connection with the
murder of Kamlakar. The learned counsel Mr. Pasbola again brought
from his mouth what has been testified by him in his chief about the
visits of those four persons for 20 days for taking breakfast and then
going at the bus stop of Bus no. 340. According to the learned counsel
Mr. Pasbola, this is an omission and, therefore, his evidence on that
point cannot be relied upon. It is of common knowledge that no
prosecution witness can reproduce each and every word from his
statement recorded by the police u/s. 161 of Cr.P.C. as it is a settled
position that a very limited use of such statement for the purpose of
contradiction and omission can be made. In his statement before the
police, P.W. 12 Motilal had briefly stated that by the end of February
2007, before the murder of Kamlakar Jamsandekar, four unknown
persons used to visit his hotel for breakfast, tea etc. and they used to
loiter around the hotel in that area. After the murder of Kamlakar
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 71
Jamsandekar, he had never seen them again. In view of the said
statement, what has been reiterated during cross by the defence cannot
be said to be a material omission. There is no reason to disbelieve this
witness so far as his evidence on oath is concerned about the visit of
four persons i.e. Accused nos. 2 to 5 to his hotel as he has no axe to
grind against them. He is a natural witness who has even supported and
corroborated the testimony of P.W. 7 Manali in material particulars in so
far as identification of these accused are concerned. The defence has
also tried to bring on record certain other omissions with respect to his
supplementary statement recorded on 20.2.2008. In the said
supplementary statement, P.W. 12 Motilal had briefly stated about the
identification of the accused from the row of 14 persons which were at
Sr. Nos. 5 and 11 who stated their names as Anil Giri and Vijay Giri and
thereafter, in second round of T.I. parade, he identified Narendra Giri
A4 and Ashokkumar Jaiswar A3. All minor omissions are immaterial.
The omissions can only be considered if they are material as material
omissions amounts to contradiction. The fact that he visited the Arthur
Road Jail to identify the suspects and in the T.I. parade conducted by
P.W. 24 Mr. Kambli has not been denied by the defence as it has been
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 72
elicited from this witness that pursuant to a letter received from the
ACP, D1 South he attended the T.I. parade. He also reiterated that
during identification of the four accused, he did disclose to P.W. 24
Kambli that those four used to visit his hotel for breakfast and lunch. It
is further elicited from this witness that he identified those four who
might have been visiting his hotel as there was a lapse of about a year.
Finally, he denied to have adduced false evidence at the behest of the
police.
70. The learned counsel Mr. Sejpal has adopted the cross
examination conducted by learned counsel Mr. Pasbola
71. P.W. 24 Dattaram Kambli Exh. 298 testified that he received
a letter on 18.6.2008, written by ACP Mr. Durafe P.W. 37. He was
requested to hold a T.I. parade on 20.6.2008. He acknowledged receipt
of the said letter which is proved at Exh. 299. His evidence further
reveals that on 20.6.2008, at about 10 a.m., he went to the Office of
Crime Branch and met API Shelke P.W. 33 who briefed him about the
facts of C.R. No. 69/2008 and requested him to hold T.I. parade at
Arthur Road jail. P.W. 24 Kambli accordingly decided to hold T.I. parade
at Arthur Road jail as the suspects were lodged therein. He required
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 73
two persons to act as panch witnesses. Accordingly, he selected
Subhash Anjarlekar and Sanjay Nachanekar, after having ascertained
their antecedents. By that time, complainant and the witness arrived at
the Office of DCB, CID. They were introduced by P.W. 33 Mr. Shelke.
P.W. 24 Kambli thereafter enquired about the names, addresses etc. of
the witnesses and told them about the T.I. parade to be held at Arthur
Road Jail. He also made them aware of the rules pertaining to T.I.
parade. He ascertained from the complainant and witnesses as to
whether the police have shown them the suspects before, to which, they
answered in negative. His evidence further indicates that thereafter, all
of them went to Arthur Road jail in a police vehicle. Except P.W. 33 API
Shelke, they entered the Arthur Road Jail. They met Deputy Jail
Superintendent Mr. Khedkar. He made him aware about the T.I. parade
of four suspects. He gave him the Court's order and the letter of Sr. P.I.
in that regard. The said letter is proved as Exh. 300. Mr. Khedkar
asked his subordinate to make arrangement to T.I. parade. P.W. 24
Kambli asked Mr. Khedkar to make arrangement for separate stay of
both the witnesses. Accordingly, Mr. Khedkar met his chamber available
for the witnesses. Thereafter, P.W. 24 Kambli went to the room meant
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 74
for holding T.I. parade. After some time, Mr. Rao came with the four
suspects. P.W. 24 Kambli enquired with them about their names and
addresses etc. He also ensured as to whether the police had ever shown
them to the witnesses to which they denied to have shown to the
witnesses. Thereafter, he asked the Jailor Mr. Rao to make arrangement
of some thirty persons. Accordingly, Mr. Rao produced thirty persons
before P.W. 24 Kambli. He selected 24 out of them who had looks
similar to the four suspects. He asked remaining six to go back.
72. P.W. 24 Kambli further deposed that he decided to conduct
the T.I. parade in two phases. He selected two from the four suspects
and 12 from the 24 dummies for first round. He recorded the names
and other details of the 12 dummies and asked them to stand in a row.
He asked remaining two suspects and the dummies to go to the T.I.
parade room. He again enquired with the two suspects their names and
addresses who stated their names as Vijay Harihar Giri A2, age 28 years
and Anil Sherbahadur Giri, age 24 years. Thereafter, P.W. 24 asked
panch Mr. Nachanekar to fetch the witnesses. When Mr. Nachanekar
left the room, he asked the other panch to bolt the entrance door of the
T.I. parade room. He asked accused Vijay Giri to stand at any place in
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 75
the row. Accused Vijay Giri preferred to stand between dummy nos. 4
and 5. Accordingly, accused Anil Giri preferred to stand between
dummy nos. 9 and 10. P.W. 24 Kambli also asked the suspects as to
whether they wanted to change their clothes to which they refused.
There was a knock on the door as panch no.2 had brought the
complainant. Panch no.1 opened the door. P.W. 24 Kambli asked the
girl her name and address etc. She gave her name as Manali Keshav
Hire P.W. 7. Thereafter, P.W. 24 Kambli asked her to observe all the 14
persons in the row. After having observed them, P.W. 7 Manali pulled
out a person standing between dummy nos. 4 and 5. She narrated
some matter which had been recorded by P.W. 24 Kambli in the
memorandum of T.I. parade. On being asked, the suspect told his name
as Vijaykumar Harihar Giri. Thereafter, panch no.2 took P.W. 7 Manali
outside the T.I. parade room and kept her away from the other witness.
P.W. 24 Kambli asked the panch to bring another witness. The door was
closed. P.W. 24 again asked the suspect the position and the clothes on
their person, if they desired. Both the suspects refused. Thereafter,
another panch knocked the door. After opening the door by the co
panch, the said panch entered with the second witness who told his
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 76
name as Motilal Chaudhari. P.W. 24 asked him to identify the suspect
from amongst the 14 in the row. After having observed, P.W. 12 Motilal
pointed out the suspects standing between dummy nos. 4 and 5 and 9
and 10. P.W. 12 Motilal informed P.W. 24 Kambli that those two persons
used to visit his hotel along with two more persons. It was put in
writing in the memorandum by P.W. 24 Kambli. On being asked, those
two suspects stated their names and addressed. Thereafter, he asked
panch no.2 to call the Jailor. As per the instructions of P.W. 24, the
Jailor took back the two suspects and the 12 dummies.
73. P.W. 24 Kambli further testified that then he asked panch no.
1 to call the remaining two suspects and 12 dummies and they came.
He recorded their names. He enquired with the suspects their names
and addresses upon which they stated their names as Narendra @ Kandi
@ Guddu Lalmani Giri, age 21 years and Ashokkumar Jaiswar, age 21
years. They were asked to take their positions in the row of dummies.
Accordingly, Ashokkumar Jaiswar stood between dummy nos. 3 and 4
while Narendra Giri took position between dummy nos. 8 and 9. P.W.
24 Kambli asked them whether they want to change their clothes which
they refused. Thereafter, panch no.2 came with P.W. 7 Manali. Manali
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 77
pointed out the suspect who was standing between dummy nos. 3 and
4. Her version was recorded in the memorandum by P.W. 24 Kambli.
The said suspect stated his name as Narendra Lalmani Giri. Thereafter,
the panch witness escorted Manali out of the T.I. parade room. P.W. 24
Kambli asked the other copanch to fetch Motilal. Before arrival of P.W.
12 Motilal, P.W. 24 Kambli asked the suspect whether they wanted to
change their clothes on their person. They declined. Panch no.2 came
with the witness. He was asked to identify the suspects. The witness
identified both the suspects. P.W. 24 had accordingly recorded about it
in the memorandum of T.I. parade whatever stated by the witness.
Thereafter, he called the Jailor and handed over the custody of dummies
and both the suspects to him. Thereafter, P.W. 24 Kambli completed the
memorandum of T.I. parade in the presence of both the panch
witnesses. He read over the memorandum to both the panch witnesses.
The recording of the memorandum was made as the T.I. parade
progressed, simultaneously. The T.I. parade was conluded by 13.40
hours. He obtained signatures of both the panchas on the
memorandum. He signed the same and put rubber impression of his
office. The memorandum is proved at Exh. 301. Thereafter, he came
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 78
out of the Arthur Road Jail and gave the memorandum of T.I. parade to
P.W. 33 API Shelke.
74. During his crossexamination by Mr. Pasbola, the witness
testified that he had conducted about 250 T.I. parades. He denied of
having conducted most of the T.I. parades of Crime Branch. However,
he admits that he had conducted 35 T.I. parade for the different units of
Crime Branch. His crossexamination reveals that he maintains a
register of T.I. parades which he had conducted. He had produced the
register for the year 2008. He deposed that there is a separate place for
T.I. parade in Arthur Road Jail. His attention was drawn to Exh. 301,
which is silent about the detail description of the place where the T.I.
parade has been held. He admits that he did not make any note in the
register about the antecedents of the panch witnesses. Further cross
examination pertains to the visit of API Shelke, panch witness,
identifying witnesses proceeding towards Arthur Road Jail and about
the directions given by the Jailor Mr. Rao to the Superintendent Mr.
Khedkar to make available 30 prisoners to act as dummies etc. The
witness admits that there is no mention in the memorandum about the
place where the remaining 12 dummies and two suspects were kept
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 79
during the first round of T.I. parade. There is also no mention in the
memorandum that no police officer or their official was present in the
T.I. parade room during the parade. However, the witness referred to
the certificate appended to the T.I. parade memorandum. P.W. 24
Kambli has further deposed during cross that P.W. 7 Manali took 45
minutes to identify the suspects. Similarly, she took that much time
during the next round. The other witness also took about 45 minutes
during both the rounds. Though the memorandum is silent to that
effect, nevertheless, the defence itself has elicited from this witness as to
the signature taken of both the witnesses to identify all the four suspects
which is in corroboration to the evidence of P.W. 7 Manali and P.W. 12
Motilal Chaudhari who testified about the identification of the suspects
during the T.I. parade. The witness further admits that there is no
mention in the memorandum that all precautions were taken to see that
the suspects are not seen by the witnesses while bringing them in the
T.I. parade room. There is also no mention in the memorandum about
the place where Panch no.2 took the first witness Manali after her
participation in both the rounds. The witness is shown the sketch of the
T.I. parade room which is marked as X61. His attention was drawn to
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 80
view 5 in X61 wherein the witness admits that the view 5 is correct
except there is no tarpaulin sheet. He admits that if there is no
tarpaulin sheet, then T.I. parade room is visible from outside. P.W. 24
Kambli admits that he is aware of the guidelines given by the Hon'ble
High Court and that the certificate is appended as per the guidelines.
He also admits that there is no mention of time at which he commenced
recording memorandum and concluded the same. However, he denied
that he did not take any precaution as has been mentioned in the
certificate. A perusal of Exh. 301 the memorandum shows that the T.I.
parade has been conducted by P.W. 24 D. Kambli in a flawless manner as
per the guidelines given in Chapter I paragraph 16 of the Criminal
Manual. These are the guidelines. The basic purpose is that the parade
should be arranged in a room or place which is such that the identifying
witnesses, as well as the persons connected with the police, should not
be able to look into it. It is not the requirement of the law that there
should or should not be any door or windows or that it should be a very
tightly closed rooms from all sides. The purpose and object for which
the T.I. parades are to be conducted has been duly observed by this
witness and, therefore, I do not see any reason to disbelieve the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 81
unrebutted testimony of P.W. 24 Kambli. His evidence has not been
rebutted during cross and and has inspired confidence. The certificate
annexed to Exh. 301 clearly indicates that he took all precaution to see
that no concerned police officer was present at the time of T.I. parade
and that he also took precautions to see that the witnesses do not see
the suspects in any manner. It also depicts the time at which it started
and the time at which it concluded. The signatures of the panch
witnesses are also taken.
75. The defence has pressed into service several rulings on the
point of test identification parade. I shall refer the said authorities as
shown hereinbelow:
(i) 2008 Cr.L.J. page 3036 (Supreme Court) in the case of Mahabir v. State of Delhi. The broad principles laiddown by the Hon'ble Supreme Court are as under:
(A) Evidence Act, Section 9 – T.I. parade – Do not constitute substantive evidence – Identification can only be used as corroborative of statement in Court.
(B) Necessity for holding parade can arise only when accused persons are not previously known to witnesses.
(C) Main object, during investigation stage, is to test memory of witnesses based upon
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 82
first impression and also to enable prosecution to decide whether all or any of them could be cited as eye witnesses of crime.
(D) It should be conducted as soon as possible after arrest of accused. This becomes necessary to eliminate possibility of accused being shown to witnesses prior to parade.
(E) The purpose is to test and strengthen trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of sworn testimony of witnesses in Court.
(F) There is no provision in Cr.P.C. which obliges investigating agency to hold or confers a right upon accused to claim test identification parade.
(G) It is essentially governed by Sect. 162 of Cr. P. C. Failure to hold same would not make inadmissible evidence of identification in Court.
(H) In appropriate cases, Courts may accept evidence of identification even without insisting on corroboration.
Similar ratios have been laiddown in the following authorities
cited by the defence:
(i)2004 Supreme Cort Cases (Cri) Supp 489 in the case of Lalsingh and others
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 83
versus State of U.P.
(ii) 2010 SAR (Criminal) 227 Supreme Court in the case of Musheer Khan @ Badshah Khan & anr. versus State of M.P.
(iii) AIR 1993 Supreme Court 2618 in the case of Girja Shankar Misra v. State of U.P.
(iv) 1979 Supreme Court Cases (Cri) 147 (1979) 1 SCC 79 in the case of Antar Singh vs. State of M.P.
In this case there was delay of about 12 months, whereas in
the instant case, the delay is only of 14 days.
(v) 1931 Supreme Court Cases (Cri) 634 in the case of Wakil Singh and others vs. State of Bihar.
(vi) 1993 Crimes 466 in the case of State of Maharashtra vs. Subhaiya Kanak Maniah & Ors.
(vii) 1998 ALL MR (Cri) 471 in the case of The State of Maharashtra Vs. Rajesh alias Kaka Madanlal Soni & others.
76. On the other hand, SPP Mr. Thakare has placed useful
reliance on the authorities of the Hon'ble Supreme Court reported in
2010 (3) AIR Bombay R (S.C.) 551 (S.B. Sinha, Dr. Mukundakam
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 84
Sharma, JJ), Mohd. Farooq and anr. v. State of Maharashtra. It is
held by the Hon'ble Supreme Court in paragraph 76 which reads thus:
“The contention of the learned counsel appearing for accused persons that there was inordinate delay in conducting the TIP cannot be accepted in view of the fact that both the accused persons were taken into custody on 25.06.1999 whereas the TIP was held on 10.,8.1999. Therefore, the TIP was conducted only after a period of 45 days which is not such a long period to cast any doubt over the evidentiary value of the TIP. Even otherwise, a TIP does not constitute substantive evidence but can only be used for corroboration of the statement court. It is primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation is proceeding on the right lines. The substantive evidence is the evidence of identification in court, which in the present case has been done by P.W. 18. This Court in the case of Amitsingh Bhikamsingh Thakur v. State of Maharashtra, (2007) 2 SCC 310, at page 315, has succinctly observed as follows:
As was observed by this Court in Matru v. State of U.P. 1 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the statement in Court. (See Santokh Singh v. Izhar Hussain2). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim
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to have seen the cluprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime”.
This judgment of the Hon'ble Supreme Court is under the provisions of
MCOC Act. In the said case, the T.I. parade was conducted after a
period of 45 days which according to the Hon'ble Supreme Court is not
such a long period to cast any doubt over the evidentiary value of the
T.I. parade. It is observed that even otherwise the T.I. parade falsified
substantial evidence, but can only be used for corroboration of the
statement in Court. It is practically important for the purpose of
helping the investigating agency with an assurance that their progress
with the investigation is proceeding with the right line. The substantive
evidence is the evidence of identification in Court which is in the
present case has been done by P.W. 18. The ratio is clearly applicable to
the instant case as there is only a delay of 14 days and that not P.W. 7
Manali whose unimpeachable and trustworthy evidence established the
complicity of A2 Vijaykumar Giri and A4 Narendra Giri and more
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particularly the role played by A2 Vijaykumar Giri in assassinating the
deceased, but it is also corroborated by the natural evidence of P.W. 12
Motilal Exh. 190 and also supported by the evidence of P.W. 4 Abdul
Rehaman Exh. 167, which I shall discuss at the appropriate stage.
77. The prosecution has thus, proved beyond doubt that the A2
Vijaykumar Giri and A4 Narendra Giri had trespassed into the house of
the complainant on 2nd March 2007, armed with a country made
handgun and opened fire upon Kamlakar Jamsandekar. The kind of
weapon used and the vital part of the body chosen by the shooter
clearly manifest their intention and knowledge as well as mensrea to
eliminate the deceased. They also knew that a single shot at point blank
range would, in all probability cause death of deceased who was
unarmed and defenceless. There is no room for doubt in so far as the
identification of A2 Vijaykumar Giri and A4 Narendra Giri in the light
of the testimony of P.W. 7 Manali is concerned and about the other two
accused i.e. A3 Ashokkumar Jaiswar and A5 Anil Giri who used to
roam around the house of the deceased and visiting the hotel of P.W. 12
Motilal Chaudhari. How and why these accused in furtherance of their
common intention committed the murder of Kamlakar Jamsandekar
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 87
would also be discussed at the appropriate stage.
78. Now, the next important question would be as to whether
the weapon Art. 5 seized by the investigating agency is the one used by
the assailants to eliminate Kamlakar Jamsandekar and how the said
weapon was procured?
79. P.W. 13 Shyamsundar Shridhar Munj Exh. 192 was an
Assistant Chemical Analyser in the Ballistic Department of CFSL, Kalina.
He is B.Sc. in Physics and Chemistry. He has undergone departmental
training in ballistic and has experience of ten years. He examined
firearms and ammunitions as well as examined empty cartridge and
bullet retrieved from the body. The first two paras of his evidence on
oath gives the nature of his work, how the articles are received in a
sealed condition and how the examinations and analysis are conducted
in the laboratory.
80. He testified that on 7.3.2007, his officer received four sealed
parcels and one sealed bottle along with forwarding letter by ACP
Sakinaka Division pertaining to C.R. No. 82/2007, along with a
messenger. It was duly acknowledged, which is proved at Exh. 193.
The original forwarding letter is proved at Exh. 194. Following articles
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 88
were found in the parcel:
1. Exh. 1 one wooden forearm with metal at one end in a polythene
bag wrapped in paper marked Exh. A1 (in Marathi v&1).
2. Exh. 2 sandow baniyan (cut) wrapped in paper marked as Exh.
c&1.
3. Half pant (Bermuda) wrapped in paper marked as Exh. c&2 .
4. Jangya wrapped in paper marked as Exh. c&3 .
5. Reddish liquid in bottle marked as Exh. v&2 .
81. The witness testified that after doing physical and chemical
examination of Exhibits 1 to 4, he sent Exh. 5 to the Biological
Department. The result of analysis was as follows:
“Exh. 1 is crudely prepared gripping piece (forearm) of a gun. It is also known as scarbutt. Shot holes were not observed on the baniyan, half pant and the jangya (Exhs. 2 to 4 respectively)”.
The report given by this witness is proved at Exh. 195. The scar butt
i.e. the grip has been examined by him bearing No. BL215/07 and BL
456/2008. A wrapper is shown to the witness which pertains to the
same article which was again received by the office. The report is
marked as Art. 1B. This article was received twice by the office and,
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therefore, there were two labels. The witness thereafter, referred to the
BL 216/07, which according to him was brought by police constable
bearing Buckle No. 4064 of Sakinaka police station who deposited a
sealed plastic container along with a forwarding letter signed by the
officer of J.J. P.M. Centre, Byculla, Mumbai. The sealed was perfect. It
was accepted along with a forwarding letter. The parcel was opened by
the witness on the same day. It contained Exh. 1 deformed lead pellets
(No. 71), Exh. 1A deformed Air cushion plastic wad, Exh. 1 and 1A
together put in a plastic container labelled ASG/21/27 dated 2.3.2007
with name of the deceased and ADR No.23/2007, Sakinaka police
station. The witness conducted physical and chemical examinations of
pellets and wad. He gave his report. He found the pellets which have
been were of shot size no.1. Those are generally used in a shot gun.
Exhibit 1 is a fired 12 bore plastic air cushion wad. The deformed lead
pellets in Exhibit 1 and air cushion wad in Exhibit 1 are consistent with
12 bore shotgun, cartridges of shot size no.1. The report duly proved at
Exh. 196.
82. He also noticed large number of pellets in the air cushion
wad recovered from the body of the deceased indicating that it was a
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 90
close range firing. The original forwarding letter from J.J. Hospital isi
proved at Exh. 197.
83. He deposed that on 7.3.2007 P.C. No. 4064 of Sakinaka
police station deposited two sealed bottles in the ballistic department of
CFSL along with forwarding letter of Medical Officer of J.J. Post
Mortem Centre. It was given a number as BL 217. The parcel
contained a turbid liquid in the bottle labelled right hand wash. Exh. 2
Turbid liquid in a bottle labelled left hand wash. It also labelled the
name of the deceased.
84. The witness testified that after physical and chemical
examinations, he prepared his report. He found the gunshot residues
(such as lead, nitrate, antimony, barium) in a liquid in Exhibits 1 and 2
are inconclusive. The said report is at Exh. 198. The forwarding letter
is marked at Exh. 199. On the same day, he also received articles in a
sealed plastic bottle which contained skin piece in a bottle, labelled
“ASG/21/07” dated 2.3.2007 of Kamlakar Bhaskar Jamsandekar. After
examination, he detected metallic lead around the periphery of shot
hole of Exhibit 1 is consistent with the passage and wipe of lead
shots/lead pellets. The said report is proved at Exh. 200 and the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 91
forwarding letter at Exh. 201.
85. He further testified that on 3rd June 2008, police constable
Lakhan Lamba bearing No. 31941 from CID D1, South Mumbai
submitted a sealed plastic parcel of one sealed parcel in ballistic
department along with forwarding letter of ACP, CID, D1. The case
was given number as BL 456/2008. After opening the parcel, he
noticed following description of the said parcel:
Exh.1A is one single long barrel breech loading country made
handgun without forearm (gripping piece).
Exh.1B one intact 12 bore shotgun cartridge.
Exh. 1A and 1B together wrapped in plastic and labelled,
“Vijaykumar Giri Exh. A and A1.
Exh. 2 one wooden forearm with metal at one end put in a
polythene bag and wrapped in paper, labelled, “Sakinaka police station,
Mumbai, C.R. No. 82/2008, BL215/07 and having a seal FORESNSIC
LABORATORY BOMBAY, BL. Exh. 1.
86. After conducting physical and chemical examinations, he
framed his report. Exh. 1A is a single long barrel breech loading
country made handgun without forearm. Exh. 2 is a wooden forearm
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 92
(gripping piece). The country made handgun Exh. 1A and wooden
forearm in Exh. 2 was properly assembled to form a single long barrel
breech loading country made handgun and now it was in working order.
He testified that residue of fired ammunitions nitrate was detected in
the barrel washing of country made handgun assembled by Exhibit 1A
and Exhibit 2, showing that assembled handgun was used for firing.
87. According to this witness, 12 bore shotgun cartridge from
laboratory stock was successfully test fired through the country made
handgun assembled by Exhibit 1A and Exhibit 2. Fired pellets
completely penetrated through soft wooden plank of thickness 3.4” kept
at a distance of 2' away from muzzle end. Thus, according to this
witness, assembled country made handgun is effective for causing
casualty from close range.
88. The 12 bore shotgun cartridge in Exhibit 1B was dismantled
in the laboratory for examination and cap of this cartridge was found to
be live on test firing through the country made handgun assembled by
Exhibit 1A and Exhibit 2.
89. The report, accordingly was prepared by him and proved at
Exh. 202. The forwarding letter is proved at Exh. 203 and the
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acknowledgment of the receipt is proved at Exh. 204.
90. He deposed that since there was a query regarding matching
fit of single barrel country made handgun and the grip i.e. forearm in
Exhibit 2, the said articles were sent for examination to the Physics
Division of the Laboratory on 4.7.2008. The witness has identified the
shotgun marked as Art. 5 and testified that it is the same article which
he had examined. He has also referred the wrapper bearing office seal
marked as Art. 5A. A packet containing empty cartridge of 12 bore
which was dismantled in the laboratory containing pellets collectively
marked as Art. no.9.
91. On 1.8.2008, along with P.C. No. 27602 who came to the
Office with a letter delivered all the muddemal along with the reports
Nos. K241/2008 and BL 456/2008. He obtained the acknowledgment
of the concerned constable Exh. 205. He testified that after firing a
shot from this kind of gun, the empty cartridge would remain in a gun
itself.
92. Mr. Pasbola, the learned counsel devoted first four
paragraphs of crossexamination mainly about asking the questions to
the witness as regards the qualification and working about his
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 94
laboratory function, the manner in which the articles are received,
opened, sealed and so on. This part is immaterial. What is material is
that what the expert actually did since the witness has already testified
that his experience and the manner of working in the laboratory. It is
needless to reiterate the same thing again. He denied the suggestion
that he was not supposed to examine about any particles or metallic
discharged on the clothes. He testified that even if no shot hole is
noticed by naked eye, microscopic examination is still made. Two
queries were made by the police which were about the wooden scar
butt (grip) which are: (1) what kind of article it was and (2) of what
kind of bore firearm it was related to? The witness answered that from
the scar butt itself, it could not be determined to what kind of bore
forearm it was related. He denied that the said scar butt can fit in with
any kind of bore firearm. He further deposed that it was difficult to
state in the absence of weapon that what kind of bore forearm that fit
in. It is pertinent to note that Sakinaka police station only could
recover this scar butt at the scene of occurrence which is evident from
the photographs of the scene of occurrence and subsequently the
DCB,CID could detect the handgun Art. 5 from A2 Vijay Giri during the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 95
raid conducted when the A2 Vijay Giri, A3 Ashokkumar Jaiswar, A4
Narendra Giri and A5 Anil Giri were preparing to commit a dacoity.
93. Admittedly, the report of ballistic expert does not indicate
the distance of firing as no such query was made either by Sakinaka
police station or by Crime Branch. However, he admits that the distance
of firing can be ascertained on the basis of examination of clothes on
the person of the victim and his body. He also admits that a detection
of metallic lead on the periphery of shot holes on the skin piece would
not determine the firing distance. He also admits that in case of country
made handgun, the pellets come in contact with a small portion of the
barrel and, therefore, the markings are insufficient to connect such
pellet to a particular firearm. It is reiterated that he only did one test
fire. Thereafter, the attention of the witness has been drawn to page
nos. 226, 229, 230, 231, 240 of Book on firearm in Criminal
Investigation and Trial by Dr. B.R. Sharma. Obviously, the witness
would agree with the propositions made by the author in the said book
which relate to the bullets. The witness has rightly answered that those
propositions relate to bullets and not pellets. His attention was also
drawn to page no.240 of the book which relates to walkers test which is
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 96
also conducted in the laboratory. Further, the witness testified that
some times, cushion wads are used in place of firearm linkage. It is
very rarely useful because air cushion wads do not get any marking
inside from the barrel which is a characteristic of that weapon. He
testified that theoretically it is only possible and not practically. It is
pertinent to note that the witness has categorically deposed in cross that
even without the forearm, firing was possible. However, there is
possibility of bursting of barrel. As such, nothing could be elicited from
this witness which would render his testimony unworthy of credence
and I do not see any reason to disbelieve the opinion of the expert who
had examined the firearm Art. 5 and gave his candid opinion that it was
the same weapon used by the culprits at the time of incident. All other
possibilities and hypothesis have been ruled out. The bullets retrieved
from the dead body of deceased Kamlakar Jamsandekar, plastic wad,
examination of skin piece in a bottle and other aspects clearly shows
that Art. no. 5 i.e. country made handgun was used in eliminating the
deceased. This witness was not crossexamined by any of the remaining
defence counsel.
94. The evidence of another expert P.W. 14 Mrs. Anjali Badade is
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on the point of examination of the scar butt i.e. the forearm. Her
evidence is at Exh. 206. She testified that she has been working as an
Assistant Chemical Analyser since 2005. Her qualification is M.Sc. in
Organic Chemistry.
95. On 5th July 2008, some papers were received from Ballistic
Division with a note to analyse Exhibits 1A and 2. Exhibit 1 contained
one single barrel breech loading handgun without forearm wrapped in a
plastic and again wrapped in a paper, marked Exhibit ABL456/08/Ex.
1A. Exhibit 2 contained one forearm put in a polythene bag wrapped in
plastic and wrapped in paper labelled BL456/08/Exh.2. The witness
testified that when she tried to fix Exhibit 1A with Exhibit 2, the same
exactly fixed with Exhibit 1A. She has duly identified the articles in the
court and opined that scar butt like part could give away soon after a
firing of a shot. She proved her report which is at Exh. 207.
96 In cross, she testified that she had undergone departmental
training of six months. She had undergone training in soil analysis,
paint analysis, glass analysis, matching fit etc. She had given opinion
about 50 cases in a field of matching fit articles such as bangles, roap,
wooden logs etc. However, she has not undergone training as regards
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 98
identification of wood. She admits that her report Exh. 207 is silent on
the point that the scar butt could give away soon after firing of shot.
That itself does not falsify her evidence because what has been testified
by her is an expert in matching fit is quite inspiring and trustworthy as
it cannot be said that the said scar butt detached from the weapon
would fit with any other weapon since it was a country made handgun.
Even, it is not necessary that the wood of the handgun and that of the
scar butt should be the same. There is no effective crossexamination of
this witness also. Her testimony has not been shaken by the defence. It
has rightly been deposed by her that if two articles are fixed together
and if they appeared to be one, then they are stated to be natural. She
had handed over both the articles back to the Ballistic expert on
1.8.2008. This witness was not crossexamined by any of the other
defence counsel.
97. The following points would, therefore, substantially
establish the connection with the recovered handgun Art. 5 and the
offence of the murder of Kamlakar Jamsandekar:
(a) Art. 5 is a single barrel breech loading
country made handgun (Exh. 202).
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 99
(b) The scar butt/forearm is missing (Exh.
202).
(c) The barrel washing shows the handgun
(Art. 5) was used for firing prior to its receipt
in the laboratory.
(d) The wooden firearm (Art. 1) is easily and
properly assembled with the country made
handgun (Art. 5) for usage of ballistic
examination (Exh. 202).
(e) 12 bore cartridges could successfully be
test fired through the country made handgun
(Art. 5).
(f) The scar butt/forearm (Art. 1) shows
characteristic matching fit with the
corresponding handgun (Art. 5) (Exh.207).
98. The oral evidence of P.W. 22 Dr. Bansude Mahadev
Eknathrao Exh. 279, post mortem report Exh. 281, the report of
Anil Giri definitely shared the common intention to eliminate the
deceased. The prosecution has also proved that all of them were also
the part of the larger conspiracy hatched in this case. The aspect of
conspiracy and motive will be discussed in the subsequent paragraphs
with the aid of the call detail record of mobile phones.
157. Now, a few lines on the point of reinvestigation and further
investigation. The learned counsel Mr. Pasbola in his elaborated
arguments tried to impress upon me that there is one murder, but two
investigations with two motives attributed which are contradictory,
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having different eye witnesses. He argued that Section 173 (8) of
Cr.P.C. permits further investigation and not reinvestigation. The
concept of reinvestigation is foreign to the criminal jurisprudence. The
DCB,CID had no right to conduct reinvestigation. He further argued
that even if it is presumed that it is a further investigation, no prior
permission or intimation was obtained. He drew my attention to the
crossexamination of P.W. 3 PI Shelke. Though, it is presumed to be a
further investigation carried out by DCB,CID, in fact it is a re
investigation by them. In support of his contention, Mr. Pasbola has
pressed into service following authorities:
(1) (1998) SCC CRI page 1307 in case of K.
Chandrashekhar vs. State of Kerala. The
relevant portion in paragraphs 23 and 24 of
the judgment of Hon'ble Supreme Court has
been quoted as under:
“Mere a plain reading of the above section, it is
evident that even after submission of the police
report under subSection (2), on completion of
investigation, the police has a right of “further
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investigation under subSection (8) not “fresh
investigation” or reinvestigation”.
(2) Rama Chaudhari vs. State of Bihar
reported in (2009) 2 SCC (Cri) 1059.
(3) Mithabhai Pashabhai Patel & Others vs.
State of Gujarat reported in (2009) 2 SCC
(Cri) 1047.
(4) Virendra Pratap Singh vs. Rajesh
Bharadwaj reported in (2010) 3 SCC (Cri)
1169.
158. On the other hand, learned SPP strenuously argued that this
is not a case of reinvestigation, but further investigation if the
chronology of the events are taken into consideration which occurred
naturally in such a manner that it was a continuous investigation. The
accused were immediately arrested by the Sakinaka police station
whose remand was sought from the competent court and also after the
arrest of other accused, the intimation of their remand has been given
to the Court about the further investigation by the DCB,CID, which is
evident from the remand reports, which are exhibited at Exhs. 467,
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468 and 472. Looking to the gravity and magnitude of the offence,
only because the fact of further investigation has not been duly
intimated to the court where Sakinaka police station had filed the
earlier chargesheet, would not vitiate the entire investigation, more
particularly, the investigation of this case which was conducted under
the provisions of MCOC Act where there is an inbuilt safeguard of
obtaining prior approval u/s. 23(1) of the MCOC Act and sanction u/s.
23(2) of the said Act for filing chargesheet. It is also pertinent to note
that the Crime Branch had not abandoned the investigation conducted
by police station Sakinaka and in fact both cases have been merged in
this present trial and it is only on the basis of the totality of the
evidence and in view of the direction of the Hon'ble High Court, these
matters are being conducted together. The learned SPP Mr. Thakare
has, therefore, placed useful reliance on an authority reported in
(2008) 2 SCC, paged 383 in case of State of Andhra Pradesh vs. A.S.
Peter. The ratio laiddown by the Hon'ble Supreme Court is similar to
that of the ratio laiddown by the same Court in the ruling pressed into
service by the defence. It is held and I quote following paragraphs:
Para 9: “Indisputably, the law does not mandate taking of prior permission from the
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Magistrate for further investigation. Carrying out of a further investigation even after filing of the chargesheet is a statutory right of the police. A distinction also exists between further investigation and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not”. Para 14: “In Ram Lal Narang this Court was concerned with a case where two conspiracies were alleged; one being part of a larger conspiracy. Two investigations were carried out. This Court, while opining that further investigation is permissible in law, held that the Magistrate has a discretion in the matter to direct further investigation, even if he had taken cognizance of the offence, stating: (SCC pp. 33738, para 20).“20. ... The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should
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inform the court and seek formal permission to make further investigation when fresh facts come to light”.
Para 16: “Even in regard to an independent investigation undertaken by the police authorities, it was observed: (Narang case, SCC p. 338, para 21).“21.... In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation”.
Para 18: “Reliance placed by the High Court as also by Mr. Rai on K. Chandrasekhar is misplaced. Therein investigation had been carried out by the Central Bureau of Investigation with the consent of the State. However, the State withdrew the same. The question which arose for consideration therein was as to whether it was permissible for the State to do so. The said issue was answered in the negative stating that the investigating officer must be directed to complete the investigation”.
159. Thus, by no stretch of imagination, it is said to be a re
investigation and, therefore, the arguments of the learned counsel Mr.
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Pasbola and Mr. Sejpal do not hold water.
160. In order to understand the motive and conspiracy behind
the murder of Corporator Kamlakar Jamsandekar, prosecution has
adduced not only the oral evidence of P.W. 1 Komal Jamsandekar Exh.
156, the widow of the deceased and P.W. 2 Nilkanth Bane Exh. 159, the
Personal Assistant of the deceased, but also heavily relied upon
confessional statements of seven accused, more particularly, the
confessional statement of A9 Sandip Gangan Exh. 324 and A10
Rane, as well as A11 Dinesh Narkar and A8 Surendra Panchal. A role
played by each of these persons is reflected from confessional statement
of A10 Shrikrishna, which is a substantive evidence.
CONFESSIONAL STATEMENT OF A9 SANDIP @ SANDY GANGAN
196. The confessional statement of A9 Sandip Exh. 324 has been
recorded by P.W. 29 Brijesh Singh Exh. 320, who was working as a DCP,
Zone I at the relevant time. A9 Sandip had also not retracted his
confession before the CMM like A10 Shrikrishna. P.W. 29 DCP Mr.
Singh has testified that he was authorised to record the confessional
statement under the said Act. On 26.5.2008, he received a letter from
Joint C.P. (Crime) Mr. Rakesh Maria, nominating him to record
confession of A9 Sandip. The letter to that effect signed by Joint CP
Mr. Maria proved at Exh. 321. He, therefore, wrote a letter to the I.O.
P.W. 37 ACP Durafe, asking him to produce A9 Sandip before him on
27.5.2008. The said letter is at Exh. 322. Accordingly, A9 Sandip was
produced before P.W. 29 DCP Mr. Singh by PSI Dhamankar. The letter of
P.W. 37 ACP Mr. Durafe is proved at Exh. 323. P.W. 29 DCP Mr. Singh
asked the staff members to leave his chamber. He assured that there
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was no police officer present in the chamber or around except his steno
who takes the dictation. He put some general questions to A9 Sandip
and ascertained that he was comfortable. P.W. 29 DCP Mr. Singh
introduced himself and informed A9 Sandip about the purpose of his
presence in the office. A9 Sandip stated that he wanted to make a
confessional statement voluntarily. P.W. 29 DCP Mr. Singh informed A9
Sandip that he was not bound to make a confessional statement and if
he makes a confessional statement, the same would be used as evidence
against him. P.W. 29 DCP Mr. Singh further asked A9 Sandip whether
anybody had offered him any inducement, promise or was there any
pressure for making a confession which has been answered in negative
by A9 Sandip. P.W. 29 DCP Mr. Singh also asked whether A9 Sandip
was subjected to any kind of illtreatment by investigating officer to
which he replied in the negative. P.W. 29 DCP Mr. Singh had also made
him aware that he was not in the custody of I.O. and if he did not want
to make a confession, he would not be sent back to the custody of
investigating agency. Thereafter, the witness put some questions to A9
Sandip to ascertain his educational background, age, languages known
etc. and was simultaneously recording the same. When P.W. 29 DCP Mr.
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Singh got assured that A9 wants to make a confession voluntarily, he
asked him whether he requires some time for reflection and he gave
time for 24 hours and told that he would be in his custody and none
from the investigating agency would meet him. He also offered A9
Sandip to have presence of his friends, relatives or advocate during
recording of his confession. A9 Sandip refused. P.W. 29 DCP Mr. Singh
had also told A9 Sandip that he can change his mind during the period
of reflection and it would not be obligatory on his part to make
confession. The said aspects have been recorded as Part I which was
read over to the accused who affirmed the same. He then signed each
page of Part I. P.W. 29 DCP Mr. Singh also signed each page thereof.
Part I is duly proved at Exh. 324.
197. P.W. 29 DCP Mr. Singh wrote a letter to the police station
Colaba, asking them to make separate arrangement of the lockup for
A9 Sandip. He asked Sr. P.I., Colaba police station to have medical
checkup of the A9 Sandip. The station diary entries in that regard
were made. The Colaba police station officer was asked to produce A9
Sandip again on 28.5.2008 at 2.30 p.m. Since P.W. 29 DCP Mr. Singh
was busy with other official work, A9 Sandip was produced before him
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at 5.00 p.m. on 28.5.2008, pursuant to his oral instructions.
198. P.W. 29 DCP Mr. Singh asked the police party to leave his
chamber. He repeated all the questions which have been put to the A9
Sandip in Part I to ensure whether he wanted to make a confession
voluntarily. He asked A9 Sandip whether he still wanted to make a
confession and whether the time given for reflection was sufficient. A9
Sandip answered that it was sufficient time. He also asked him whether
he was subjected to any kind of illtreatment during the period of
reflection or anybody connected with the investigation met him which
he replied in the negative. P.W. 29 DCP Mr. Singh asked A9 Sandip
whether he was subjected to any inducement or threat or promise to
make a confession which he replied in negative. He again informed A9
Sandip that it was not binding upon him to make a confession and if he
makes it, it can be used as evidence against him. He also made him
aware that if he did not wish to make a confession, he would not be
sent back to the custody of the investigating agency. P.W. 29 DCP Mr.
Singh testified that he generally ascertained the state of well begin from
the appearance and body language of A9 Sandip. From the answers of
A9 Sandip to all his questions, the witness was satisfied that the
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accused wanted to make a confession voluntarily. Thereafter, P.W. 29
DCP Mr. Singh asked A9 Sandip as to which offence he wanted to make
confession of upon which A9 Sandip answered that he wanted to make
a confession in connection with the murder of Kamlakar Jamsandekar
and the activities of A1 Arun Gawali's gang. Accordingly, P.W. 29 DCP
Mr. Singh put questions to the accused and the answers given thereto
came to be recorded simultaneously in response to each question.
199. P.W. 29 DCP Mr. Singh further testified that he recorded the
statement of A9 Sandip in verbatim in his own language and thereafter,
it was read over to him and found to have been correctly recorded.
Then he signed each page of his statement. It was signed by P.W. 29
DCP Mr. Singh also which is recorded as Part II of the statement. It is
proved at Exh. 324A. After having been satisfied himself as to the
accused to have made confession voluntarily, P.W. 29 testified that he
appended his certificate in that regard. It bears his signature. It is
proved at Exh. 324B. The recording of statement was concluded late in
the evening. P.W. 29 DCP Mr. Singh sealed both the parts of the
confessional statement along with his certificate and prepared a letter to
the Chief Metropolitan Magistrate. Since it was late in the evening, he
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sent back the accused to the lockup of Colaba police station. He also
directed the Colaba police station to follow his instructions given to
them before A9 Sandip was given them for being kept in the lockup for
reflection. P.W. 29 DCP Mr. Singh had also directed the officer of Colaba
police station to produce A9 before the CMM at 11 a.m. on the next
day. On the next day, the Colaba police station official came to his
office with A9 Sandip. They collected the cover containing
confessional statement and left for producing the accused before the
CMM. The CMM handed over A9 Sandip back to the custody of the
I.O. It is further in the evidence of P.W. 29 DCP Mr. Singh that the
report of the CMM along with the statement of the accused is marked at
Exh. 325. The witness refers to his letter to the I.O. asking him to get
back A9 to his custody after the purpose of production of the accused.
The said letter is at Exh. 326.
200. A perusal of Exh. 325, which is a confidential letter, addressed
by Mr. M.H. Belose, CMM, Mumbai to this Court dated 29.5.2008,
indicates that due to inadvertence or the clerical mistake, the name of
A10 Shrikrishna is reflected instead of A9 Sandip Gangan. However,
the subject of the letter does indicate that A9 Sandip was produced
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before the learned CMM. The learned CMM perhaps, due to the heavy
workload, could not ascertain the contents of the letter which he
signed, this cannot be said to be an illegality, but just a clerical mistake,
for the statement of A9 Sandip annexed with the letter does indicate
that : “ek>k tckc eyk okp w u n k[ k foyk o rk s e k÷;k lk ax.;ki ze k. k s vkg s - eh
12 oh i; Z a r f' kdyk s vkg s - ej kBh e k>h e kr ` H k k ” k k vkg s - oj hy tckck
O;frfjDr eyk tkLr dkgh lk a x ko;kp s u kg h -” The confessional statement
was recorded as per his say and he does not want to say anything else.
Thus, the confession of both A9 and A10 Shrikrishna Babu Gurav were
accepted before the CMM and were not retracted.
201. Now, turning to the crossexamination of P.W. 29 DCP Mr.
Singh by the learned counsel Mr. Pasbola, the crossexamination is
mainly on a trivial technical aspects which does not shake the testimony
of this witness, which is quite natural, believable and inspires
confidence. For that matter, normally the police officer of such a high
rank would not indulge in acts which are detrimental to an individual
or which are against the established principles of law. P.W. 29 DCP Mr.
Singh in his crossexamination admits that earlier, he had recorded
confessional statements. He had studied the provisions of MCOC Act
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visavis Cr.P.C., at that time. He admits that he questioned A9 Sandip
in verbatim on both days and also put some sundry questions though
those have not been recorded in Part I and II. He categorically admits
that he adhered to the rules of confession. He also states that as it was
not mandatory to ascertain the date of arrest of the accused he did not
put any questions to A9 Sandip to that effect. He also testified that it
was not necessary to ascertain as to when the accused first expressed
his desire to make confession and before whom he so expressed. He
denied the suggestion that he does not put any such questions in that
regard. It is again brought in the crossexamination that on both days,
he told the accused that if he did not make any confession, he would
not be sent back to the investigating agency. Though Part I and II are
silent in this regard, the admission brought in crossexamination by the
defence itself establishes that he did inform the accused that if he did
not make a confession, he would not be sent to the custody of I.O. As
regards the satisfaction of P.W. 29 DCP Mr. Singh, after noticing the
appearance and body language of the accused, he found that the
accused wanted to make a confessional statement voluntarily and he
mentioned the said fact in the certificate. He clarified that year 2007
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has been wrongly mentioned in the top of both Part I and II. He also
admits that it has wrongly been shown a date as 27.5.2007 in Part II,
which according to the witness is a typographical error which he did not
realize at that time. Thereafter, certain questions were asked about the
procedure when the letter is received in the office and about putting
inward number or outgoing correspondence etc. He admits that as per
Section 18(3) of the MCOC Act, the certificate of Part II does not
indicate time and date of recording of confessional statement.
However, he testified that there is record in the nature of station diary
entry of Colaba police station. He admits that he did not write the
certificate of Part II of the confession on the last page since it was a
page long, a page break was inserted. He did not feel that there was
enough space in Part II for certificate. The witness also admits that the
certificate is not in his own handwriting. He did not call upon the
accused to write down his confessional statement as he was not sure
whether the accused would properly write down the confessional
statement. He also admits that the last page of Part II indicate that the
accused himself read the confessional statement, but it is silent to state
that the confessional statement was read over to the accused. The fact
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remains that the accused himself read his confessional statement and,
therefore, even if there is no mention in the certificate, it would not be
hazardous in any manner. He also admits that when he wrote the
certificate, the accused was well before him, but he did not obtain his
signature below the certificate. He denied the suggestion that he
obtained the signature of the accused on his confessional statement
before the certificate was prepared. A9 Sandip had stated before P.W.
29 DCP Mr. Singh about the date on which he was arrested by the
Crime Branch, which is mentioned in the last paragraph of Part II of his
confessional statement. P.W. 29 DCP Mr. Singh also admits that there is
no mention in Part II that he asked the Colaba police station officer to
produce the A9 Sandip before the CMM at 11.00 a.m. on 29.5.2008
and to come back to his office thereafter i.e. on 29.5.2008, itself along
with the accused. Though there is no record to indicate that it was late
in the evening on 28.5.2008, there is nothing to disbelieve the
testimony of this witness on oath. The witness further admits that there
is no specific question put to the accused whether he was subjected to
illtreatment by the investigating agency, but the witness referred to
Question nos. 9 and 15 of Part I, which indicates that he was asked
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whether he had any complaint against the investigating agency or
against the person who arrested him, which he answered in the
negative and while answering Question no.15 that whether there was
any pressure or threat or undue influence or any allurement is given to
him which also has been denied by him. P.W. 29 DCP Mr. Singh has
denied that the accused did not make any confession on both occasions
i.e. either Part I or Part II and that the certificate was allegedly
furnished to him by the investigating officer which he simply signed.
He denied the suggestion that accused was physically assaulted during
the police custody and, therefore, he did not examine him in person.
202. During crossexamination, by the learned counsel Mr. Ponda,
a question was asked whether the witness has studied the relevant
provisions of the Evidence Act. The witness admits and says that he is
aware of the difference between admission and confession. He was
aware that under MCOC Act, he was empowered to record only
confessional statement and not any other statement. He recorded
confessional statement in the crime covering offences relating to murder
of Kamlakar Jamsandekar. Attention of P.W. 29 DCP Mr. Singh was
drawn and was asked to point out the matter from the narrative of Exh.
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324, indicating the role which he had played in commission of the
murder of Kamlakar Jamsandekar. P.W. 29 DCP Mr. Singh pointed out
some portion which is marked 'A' for convenience. He denied that this
marked portion 'A' does not amount to confession.
203. A perusal of the portion marked 'A' in the confessional
statement of A9 Sandip Exh. 324A indicates that in the beginning of
January 2007, at about 4 p.m., A15 Patil called him on the second floor
of Gitai Building of A1 Arun Gawali and gave him Rs.60,000/. He
asked him to give that amount to A12 Pratap who was waiting near a
Tea Kiosk. A9 Sandip, therefore, gave Rs.60,000/ to A12 Pratap. At
that time, A12 Pratap said that he was going to receive Rs.10 lakhs
from A6 Bhintade for the “work” of Kamlakar Jamsandekar (Murder).
It is pertinent to note that A9 Sandip resides in Dagdi chawl, right from
his birth. Even in his statement u/s. 313 of Cr.P.C., while answering
Question no.6, in his additional statement, he admits that he knows that
A1 Arun Gawali's office is situated on the ground floor of Gitai building
and further states that prior to his production before the Magistrate, he
was threatened by the police not to disclose anything before the court.
He also states that the Magistrate did not ask him anything about the
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confession. Before producing him in the court, the police were looking
at him angrily. It can be said that the said A9 Sandip is not speaking
the truth, for Chief Metropolitan Magistrate, cannot be disbelieved who
had affirmed that the accused had voluntarily given his confession. He
also states in his statement u/s. 313 of Cr.P.C. that he was brutally
beaten by the police. An electric shock was given and was threatened
not to disclose about it to the doctor. Nevertheless, it cannot be lost
sight of the fact that he had voluntarily given the confessional
statement before P.W.29 DCP Mr. Singh, wherein he had categorically
stated his role as well as the role of A1 Arun Gawali, A6 Bhintade, A7
Surve, A12 Pratap, A13 Rane and A15 Patil. It is also clear from the
confessional statement that in the year 1997, one Jitendra Dabholkar
and A1 Arun Gawali formed a political party known as 'Akhil Bhartiya
Sena'. He was appointed as a peon in the office and thereafter he was
working as a computer operator and was receiving salary of Rs.2500/
per month. Not only that, he had stated phone numbers of the office as
23015868 and 23091771.
204. It has been rightly argued by SPP Mr. Thakare that the
contention of the defence that the statement recorded by the DCPs are
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not confessions as they do not admit the guilt as regards commission of
murder of Kamlakar Jamsandekar is absurd. Indeed, the offences in the
case in which the accused have given confessions pertains to an
organized crime syndicate which is indulged in organised crime and in
view of the definition of the word “abet” given in Section 2(1)(a) of the
MCOC Act, 1999 with its grammatical variations and cognate
expressions includes the communication or association with any person
with the actual knowledge or having reason to believe that such person
is engaged in assisting 'in any manner' an organized crime syndicate
which if read with Sec. 3(2) leaves no scope to allege that the
statements given by the concerned accused are not confessions. As
such, the judgments relied upon by the defence in the case of Pakhala
Narayan Swamy vs. Emperor and others can be distinguished.
205. Going back to the confessional statement of A9, he had
stated before P.W.29 DCP Mr. Singh that the office bearers of Akhil
Bhartiya Sena and its workers used to supply information about the
construction of new structures and other matters to A1 Arun Gawali
which includes the names of the builders. Thereafter, the builders were
summoned in the ground floor of Gitai building where there is a special
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room known as “Bhajnachi Kholi”, which means room for chanting
“Bhajan” and there, A1 Arun Gawali along with his henchmen used to
extort moneys from them. He further stated that one 'Matka King'
Pappu Savla used to pay Rs.5 lakhs per month to A1 Arun Gawali.
They also used to collect money from the builders and merchants under
the pretext of 'Navratri Utsav' and other festivals through A15 Suresh
Patil and others to send it to A1 Arun Gawali. If anyone fails to give
money to A1 Arun Gawali, then he would be called in the room of
“Bhajan” where such persons used to be assaulted by sticks and belt.
206. A9 Sandip had further confessed that in the first week of
December, 2006, the office bearers of Akhil Bhartiya Sena, A12 Pratap
and A13 Rane had been to the office of Akhil Bhartiya Sena with two
aged persons, at about 2.45 p.m. A12 Pratap had a brown coloured
bag, admeasuring 1 x 1.1/2 feet with him. A12 Pratap and A13 Rane,
in the presence of A9 Sandip called A15 Patil down stairs by giving a
call on mobile. After some time, A15 Patil came down. A13 Rane
remained in the office probably because he is handicapped. A9 Sandip,
A15 Patil along with A12 Pratap along with those two aged persons
went to the second floor of Gitai building in the office of A1 Arun
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Gawali. A15 Patil had closed the doors from inside. At that time, A12
Pratap gave the said bag to A1 Arun Gawali by informing that it
contained 30 lakhs rupees. As per the direction of A1 Arun Gawali,
A15 Patil took the bag. A1 Arun Gawali, at the relevant time, in the
presence of A9 Sandip addressed those two aged persons by saying
“Jamsandekar Yanche Kaam Houn Jail, Tumhi Kalji Karu Naka”, means
the work of Jamsandekar will be done and they need not worry. After
getting such assurance, A9 Sandip along with those two persons and
A12 Pratap came to the ground floor in the office. Those two persons
were waiting at the gate when A12 Pratap informed A9 Sandip that
those two persons were A6 Bhintade and A7 Surve. Thereafter, A6
Bhintade and A7 Surve and A12 Pratap and A13 Rane left the said
place together.
207. Again, at the cost of repetition, A9 Sandip had stated that
in the month of January 2007, at about 4.00 p.m., at the instance of
A15 Patil, who called him at the second floor of Gitai building, paid Rs.
60,000/ to A12 Pratap who was standing outside a gate near a tea
kiosk. At that time, A12 Pratap informed A9 Sandip that he would get
Rs.10 lakhs from A6 Bhintade for the “work” of Kamlakar
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 230
Jamsandekar.
208. If the confessions of A9 Sandip and A10 Shrikrishna are
juxtaposed visavis the other evidence of the witness discussed herein
before, it has been sufficiently established by the prosecution that an
amount of Rs.30 lakhs was given for the contract killing of Kamlakar
Jamsandekar meaning thereby a 'supari' by A6 Bhintade and A7 Surve
to A1 Arun Gawali through A12 Pratap and A13 Rane, who in turn
hired the shooters by taking aid and assistance of A10 Shrikrishna. No
doubt, all the accused depicted in the chart hereinabove, have
retracted their confessions before this court, but now the law is very
much settled in case of Mohd. Farooq Abdul Gafur and anr. vs. State
of Maharashtra reported in 2010 (3) AIR BOM R (S.C.) 551. In
paragraph 59, it has been observed and I quote thus:
Para 59: So far as conviction under MCOC is concerned, it is quite clear that conviction could be based solely on the basis of confessional statement itself and such conviction is also permissible on the basis of the confessional statement of the coaccused which could be used and relied upon for the purpose of conviction”.
Not only that, the Hon'ble Supreme Court in the said ruling
in paragraph 85, had observed and I quote thus :
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“The reasoning of the Hon'ble High Court that the confessional statement of the coaccused are not admissible in evidence because Section 313 Cr.P.C. had not been complied with is not tenable as there is nonobstante clause in Section 18(3) which precludes the application of Cr.P.C. and, therefore, the evidence of a coaccused is admissible as the piece substantive evidence”.
It is not the case that there is no compliance of Section 313 of Cr.P.C.
209. Keeping in mind the ratio laiddown by the Hon'ble
Supreme Court in the ruling cited supra while interpreting Section
18(3), it can verywell be said that not only by the confessional
statements of A9 Sandip and A10 Shrikrishna, even the confessional
statement of A15 Patil along with the confessional statements of A3
Ashokkumar Jaiswar, A4 Narendra Giri and A5 Anil Giri, which
corroborates each other in material particulars and which are quite
cogent and convincing, one can safely say that the organized crime
syndicate headed by A1 Arun Gawali hatched a wellplanned
conspiracy with full intention and knowledge to murder Kamlakar
Jamsandekar. It is crystal clear that A9 Sandip and A10 Shrikrishna
did not retract their confessions before the CMM and, therefore, there
is no room for doubt that those confessions were voluntary. Even the
confession of A15 Patil which I shall discuss hereinafter, corroborates
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the confession of A9 Sandip and A10 Shrikrishna.
CONFESSIONAL STATEMENT OF A15 SURESH PATIL:
210. P.W. 18 Dilip Sawant was DCP Zone II. He recorded the
confessional statement of A15 Patil. His evidence indicates that
pursuant to the letter of Joint Commissioner (Crime) dated 11.7.2008,
nominating him to record the statement of A15 Patil in DCB,CID C.R.
No. 69/2008. He recorded the confessional statement. The said letter
of Joint C.P. is proved at Exh. 233. P.W. 18 , DCP Mr. Sawant wrote a
letter to the I.O. of the case on 12.7.2008, directing him to produce the
accused on 13.7.2008. The said letter is proved at Exh. 234. He also
wrote a letter to Sr. P.I. police station Chembur, asking him to provide
guards, which is proved at Exh. 235. Accordingly, A15 Patil was
produced before him by PSI Dhamankar along with a letter Exh. 236.
Before his production, he was got medically examined. The certificate
of which is marked as X52 dated 13.7.2008. P.W. 18 DCP Mr. Sawant
ascertained from PSI Dhamankar about the arrest of the accused which
was made on 26.6.2008 and he was in police custody till 17.7.2008.
211. P.W. 18 DCP Mr. Sawant thereafter asked all the police staff
to leave his office and called his orderly Mr. Hemale to ensure that
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nobody would enter his chamber without his permission. During the
talk with the accused, he realized that he can converse with the accused
in Marathi and Hindu languages. On being asked, the accused denied
that there was any influence to give a confessional statement. He
ascertained that it was being given voluntarily, after putting him certain
questions. P.W. 18 DCP Mr. Sawant introduced himself and thereafter,
asked about the details of the accused such as his name, age etc. The
accused gave his name as Suresh Raghunath Patil alias 'Mothi Bank' (Big
bank), resident of Dagdi chawl, Byculla East. He is 10th standard failed.
He volunteered that he wanted to give a confession with respect to the
murder of deceased Kamlakar Jamsandekar and the activities of A1
Arun Gawali gang. P.W. 18 DCP Mr. Sawant warned him that he is not
bound to give the confession as the same would be used as evidence
against him. After ascertaining the voluntariness by putting some
questions, he realised that the A15 Patil really wants to give a
voluntary confession. A15 Patil has also declined to take legal advice
or presence of his friends or relatives etc. Thereafter, A15 Patil was
given 24 hours' time for reflection. The Part I was accordingly prepared
which was signed by both A15 Patil and P.W. 18 DCP Mr. Sawant.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 234
212. P.W. 18 DCP Mr. Sawant thereafter, placed the accused in the
custody of Sr. P.I. of Chembur police station viz. Mr. Pathade with a strict
instructions not to allow anyone to meet the accused in the lockup of
police station Chembur. The said letter is at Exh. 238. He directed the
PI Pathade to get the accused medically examined. The medical report
accordingly was tendered and marked as X53. The copy of the written
instructions is at Exh. 239. P.W. 18 DCP Mr. Sawant also instructed the
Sr. PI to remove all other accused from the lockup of the Chembur
police station and to detain them at Ghatkopar police station. The
instructions were followed. The true copy of the lockup register dated
13.7.2008 is marked as X54. Another medical report is at X55 and the
station diary entry regarding medical examination report is marked at
X56.
213. A15 Patil was produced before P.W. 18 DCP Mr. Sawant on
15.7.2008 at 12.30 p.m. by PI of Chembur police station with a letter
which is marked as Exh. 240. P.W. 18 DCP Mr. Sawant again ensured
that except him and his orderly, nobody was present near his chamber
or nobody would enter the chamber. On being asked, A15 Patil again
reiterated that he wanted to give the confession voluntarily, even after
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 235
giving sufficient time for reflection. A15 Patil affirmed that neither he
was pressurized nor induced to give a confessional statement. He was
again informed that if he confesses, that would be used as evidence
against him. A15 Patil affirmed that he knew the consequences of
making confession. He made it clear that he wanted to give a
confessional statement as he was repenting . He refused to take
assistance of his relatives or legal advice during his confession. After
getting satisfied, P.W. 18 DCP Mr. Sawant recorded the confession of
A15 Patil, who according to this witness, confessed his role of
collecting money on behalf of the gang and also confessed to the
murder of Kamlakar Jamsandekar. The confessional statement was read
over to him. A15 Patil himself read his confessional statement which
he found to be correct. Thereafter, he put his signature on each page
and so also by P.W. 18 DCP Mr. Sawant. The said confessional statement
is proved at Exh. 241.
214. P.W. 18 DCP Mr. Sawant prepared a certificate about his
satisfaction which is in his own handwriting with signature and is
marked as Exh. 241A, which is appended to the confessional statement.
He testified that he placed confessional statement in a cover and sealed
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 236
it. He addressed a letter to the CMM, which is at Exh. 242. Thereafter,
he handed over the custody of A15 Patil along with the sealed cover for
production before the CMM. He instructed PI Pathade to take the
accused in veil while producing before the CMM. The letter to that
effect is at Exh. 243. P.W. 18 DCP Mr. Sawant informed the I.O. in
writing about the completing the procedure of recording confessional
statement and handing over the accused to PI Dhamankar. The office
copy of the said letter is marked at Exh. 244. The station diary entry of
Chembur police station is marked X57. The report of CMM is marked
at Exh. 245.
215. The confidential letter of CMM dated 15.7.2008 Exh. 245
reveals that the accused has retracted his confession by stating that his
signatures were obtained on written papers and that though he has
been residing in Dagdi chawl with his parents right from his childhood,
he is absolutely not concerned with the A1 Arun Gawali's gang or his
“Akhil Bhartiya Sena” and its members nor he knew anything about the
murder of Kamlakar Jamsandekar.
216. P.W. 18 DCP Mr. Sawant was extensively crossexamined by
Mr. Ponda, learned counsel for A1. P.W. 18 DCP Mr. Sawant has
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admitted that he did not ask police inspector as to when A15 Patil first
expressed his desire to make confession. He admits that he had
knowledge about the arrest of the accused on 26.6.2008. He also
admits that I.O. did not tell him that the accused had made an
application on 26.6.2008, informing that he did not want to make
confession. Thereafter, certain questions were asked about the manner
in which the letters are received in the office, how they are
acknowledged, who put the signature and date etc., which are not very
material. However, the witness admits that after receipt of a letter, his
office puts a rubber impression only on the document received and not
on the copy thereof on which his staff signs acknowledging the receipt
of the said letter. He also admits that the endorsement on Exh. 237 and
other endorsements on Exh. 237A are quite different with each other.
However, he denied that the letters at Exh. 234 and 234A have been
fabricated. Thereafter, the learned counsel put certain questions as
regards the provisions of MCOC Act, TADA and Cr.P.C. as well as the
Law of Evidence. He also admits that the matter on page nos. 1 and 2
before recording of Part I commenced, has been noted down by him on
his own after making the accused comfortable by putting him some
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 238
formal questions such as his name and as to whether he has been
pressurized etc. Merely because there is no record kept by the witness
about the preliminary questioning, does not ipsofacto render the
retraction of confessional statement of A15 Patil, inadmissible, for even
retraction should be voluntary. He also denied the suggestion that
before recording the confessional statement, A15 Patil had been
supplied with a draft of questions in advance which were the copies of
the questions put to A10 Shrikrishna and A11 Narkar which he has
denied. He denied both these parts have been copied down on the
readymade parts supplied to him by the I.O. His evidence further
reveals that when he came to know that accused had retracted his
confessional statement before the CMM, he got surprised. He denied
that he had obtained the signatures of A15 on readymade Part I and
Part II and, therefore, A15 Patil had so stated before the CMM.
217. While crossexamining him on behalf of accused nos. 1, 2, 6,
7, 11, 15 and 20, learned counsel Mr. Pasbola has also put certain
technical questions e.g. the question does not reflect the exact time
given to the accused for reflection, which the witness admits. He also
admits that in fact, he wanted to give more than 24 hours for reflection
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 239
to A15 Patil. P.W. 18 DCP Sawant further admits that page no. 1 of Part
I does not bear signature of the accused on either side and so also on
page nos. 2 to 4 of Part I, front side and on page nos. 1 to 5 on front
side of Part II. He further admits that at the end of narrative of his
confessional statement, A15 Patil told him that he had initially refused
to make a confessional statement, but the witness did not question him
in that regard. At this stage, again it would be apposite to place
reliance of the judgment in the case of Mohd. Farooq Abdul Gafur
and anr. vs. State of Maharashtra reported in 2010 (3) AIR BOM R
(S.C.) 551. In paragraph 56, it is held by the Hon'ble Supreme Court
which reads thus:
Para 56: “The High Court disbelieved the aforesaid confessional statements of accused nos. 5 & 6 on the ground that the said confessional statements were inadmissible in evidence thereby it reversed the findings of the trial court. The High Court came to the aforesaid conclusion on the basis that there is no evidence to show that any preliminary warning was given prior to the recording of warning was given prior to the recording of the confessional statement, the same was inadmissible in evidence”.
Para 59: “So far as conviction under MCOCA is concerned, it is quite clear that conviction could be based solely on the basis of the confessional
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 240
statement itself and such conviction is also permissible on the basis of the confessional statement of the coaccused which could be used and relied upon for the purpose of conviction. In the case of State v. Nalini, (1999) 5 SCC 253, it was held by this court in the context of Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (now repealed), which is pari materia with Section 18 of the MCOCA that the evidence of a coaccused is admissible as a piece of substantive evidence and in view of the nonobstante clause, the Cr.P.C. will not apply”.
218. Thus, the law is quite clear as in the case in hand since there
is nothing on record to say that the confessional statement of A9
Sandip and A10 Shrikrishna are not voluntary, they can be made
admissible and conviction can be based on the confessional statement of
the accused and also against the coaccused in view of the ratio laid
down by the said ruling. Even minor technicalities about the form of
certificate, absence of signatures on the some part of the statement
would not affect otherwise cogent confessional statement.
219. A perusal of Part I of the confessional statement of A15
reveals that P.W. 18 DCP Mr. Sawant has duly followed the procedure
enunciated in Section 18 of the MCOC Act.
220. Now, coming to the second part which reveals that A15
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Patil was also known as 'Mothi Bank' is connected with A1 Arun Gawali
since 1997 as he was working as a gateman/watchman at the Dagdi
chawl and used to permit the visitors to enter the Dagdi chawl. He
states that one Sada Pavle and Vishwanath Hinge appointed him as a
Mathadi labour where he used to get salary without work. In lieu of
that, he used to do private work of Sada Pavle. Subsequently, he started
working for the gang of A1 Arun Gawali since 2001 and was looking
after the financial affairs of the gang. A1 Arun Gawali used to pay him
Rs.15,000/ and some extra pocket money and, therefore, he was also
known as 'Mothi Bank' (Big bank). He specifically states that A1 Arun
Gawali and the members of his gang used to extort money from
builders and cable operators. Those who used to refuse, were called in
the ground floor room known as “Bhajnachi Kholi” and were
threatened. Motorcycles and some other vehicles as well as
automobiles were purchased in different names for the use of members
of the gang. The members of the gang of A1 Arun Gawali as well as
the office bearers of Akhil Bhartiya Sena used to collect information
which they used to supply to the leader and thereafter, gangster
Motiram Mahadik, resident of Mandar Niketan Chawl, Byculla used to
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collect extortion money and deposit it with A15 Patil. A20 Sunil Ghate
and one Babu Dighe used to collect money from the cable operators of
Mazgaon area and used to deposit with A15 Patil. He further states
that the Matka operator Pappu Savla and his partner Pankaj Shah,
Vinod Bhagat and one Jaya Bhagat who operate Kalyan Matka, used to
pay money. Pappu Savla used to pay Rs.5 lakhs per month and Jaya
Bhagat used to pay Rs.1.50 lakh to A1 Arun Gawali gang. One
Prabhakar Raut of Arun Gawali gang and one Suhas Roge used to
collect money from Pappu Savla and Jaya Bhagat. A15 Patil used to
keep the record in diaries about the receipt of extorted amount along
with one Vishwanath Hinge, P.W. 25. P.W. 25 Hinge though has turned
hostile, who is admittedly a resident of Dagdi chawl, admitted that he
signed the panchanama Exh. 183 in a normal state. I shall discuss his
evidence later on. A15 Patil further states that the amount collected
by extortion used to be utilised for the family members of the gang after
the death of a member. The salary of the security guard and other
office bearers of Akhil Bhartiya Sena was also paid out of the said
amount. All the entries were made in the register which were checked
by A1 Arun Gawali intermittently. He states that whenever A1 Arun
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Gawali used to be in Jail, A20 Sunil Ghate used to take his position.
221. He further states that in the beginning of December 2006,
A1 Arun Gawali informed him that A12 Pratap and A13 Rane were
going to visit Dagdi chawl along with A6 Bhintade and A7 Surve, for
A6 Bhintade and A7 Surve had given a 'supari' to kill Kamlakar
Jamsandekar, a Corporator of Shiv Sena. Accordingly, in the second or
third week of December 2006, around noon, A12 Pratap and A13
Rane along with A6 Bhintade and A7 Surve came to the office of Akhil
Bhartiya Sena at Gitai building. At that time, A9 Sandip was present
who is a computer operator. Except A13 Rane, all of them went to the
fifth floor. A12 Pratap had a brown coloured bag. A15 Patil closed the
door of the office. A12 Pratap gave the said bag to A1 Arun Gawali by
stating that it contained Rs.30 lakhs. A1 Arun Gawali asked A15 Patil
to accept the bag and at the same time, A1 Arun Gawali assured A6
Bhintade and A7 Surve that the 'work' of Jamsandekar would be done
and further said that they should not worry. (“Jaamsandekar Yanche
Kaam Honun Jayeel, Tumhi Kalji Karun Naka”). Thereafter, A6
Bhintade, A7 Surve, A9 Sandip and A12 Pratap left the Dagdi chawl
and A15 Patil kept the said bag in a cupboard. At that time, A1 Arun
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Gawali instructed A15 Patil that if A12 Pratap or A13 Rane demand
some amount, he should pay them. Accordingly, in the month of
January, 2007, in the first week, as per the instructions of A1 Arun
Gawali, A15 Patil had paid Rs.60,000/ to A12 Pratap through A9
Sandip. He further states that in the month of March, 2007, A12
Pratap and A13 Rane were arrested in case of the murder of Kamlakar
Jamsandekar. At that time, as per the instructions of A1 Arun Gawali,
A15 Patil had paid Rs.20,000/ to the mother of A12 Pratap. After the
arrest of A1 Arun Gawali in April 2008, A15 Patil states that all of
them started leaving Dagdi chawl. As per the instructions of A20 Sunil
Ghate, all the diaries containing the details of accounts and other
papers, muster roll as well as two mobiles of A1 Arun Gawali were kept
in a bag and it was given to P.W. 10 Ankush Gharkar, resident of Gitai
building, 1st floor, Dagdi Chawl which he concealed. Thereafter, A15
Patil left Mumbai and went to Pune and thereafter to Aurangabad.
Later on he was arrested at Sangli. He further states that due to the
terror of A1 Arun Gawali and as per the instructions of advocate, he
had initially stated in the court that he was not ready to give a
confessional statement, but he is now repenting for his earlier statement
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 245
made before the court and, therefore, voluntarily giving the statement.
He signed the same along with P.W. 18 DCP Mr. Sawant.
CONFESSIONAL STATEMENT OF A11 DINESH @ DINYA LAXMAN NARKAR
222. P.W. 20 DCP, Yadav Pandu Dhoom, Exh. 260, recorded
confessional statement of A11 Narkar. P.W. 20 Mr. Dhoom was DCP,
Fort Zone. He testified on oath that he received a letter of Joint
Commissioner of Police Mr. Rakesh Maria Exh. 261 to record the
confessional statement of A11 Narkar. He wrote a letter to P.W. 37 ACP
Durafe Exh. 262. On the next day, A11 Narkar was produced before
him by the I.O. along with letter Exh. 263 which bears the signature of
ACP Mr. Durafe. He contacted Sr. P.I. of Yellow Gate police station on
phone and asked them to send escort party to his office. PSI
Dhamankar produced the A11 Narkar in his chamber. After
ascertaining that there is nobody except his computer operator, he
talked about the background of A11 Narkar and put him certain
questions. P.W. 20 DCP Mr. Dhoom also introduced himself and asked
him that whether he wants to make a confessional statement
voluntarily. He also told A11 Narkar about his rank and found the
accused was comfortable conversing in Marathi language. He also
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made him aware that he was not concerned with investigation. He also
ascertained that the accused was not under pressure, inducement or
promise by anyone. He also informed the A11 Narkar that he is not
bound to make confession and if he makes so, it can be used as the
evidence against him and he might be convicted. A11 Narkar siad that
he was aware about the same, but due to repentance, he wants to make
a confessional statement. P.W. 20 DCP Mr. Dhoom put 14 questions to
A11 Narkar which were answered by the A11 Narkar. A11 Narkar
stated before P.W. 20 DCP Mr. Dhoom that he wants to make a
confession in respect of the murder of a Corporator Kamlakar
Jamsandekar. the accused declined the offer of presence of his
relatives, friends or advocate during the course of recording the
confession. The accused was also made aware that he would be given
24 hours' time for reflection and to think over his decision to make a
confession. The print out of the said recording was taken out. It was
read by the accused and thereafter, each page of the same was signed.
P.W. 20 DCB Mr. Dhoom had also put his signature accordingly. The Part
I is marked as Exh. 264.
223. P.W. 20 DCP Mr. Dhoom gave a written order to the officer of
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Yellow Gate police station to keep the accused in separate lockup and to
ensure that noone would meet him without his permission. The
endorsement to that effect is at Exh. 264A. Thereafter, the custody of
the A11 Narkar was handed over to API Kamble of Yellow Gate police
station and a letter was addressed to Sr. PI of the police station to
ensure that no person would meet A11 Narkar in the lockup without
his permission. The acknowledgment of the said letter is at Exh. 265.
P.W. 20 DCP Mr. Dhoom had obtained the certified copy of the station
diary entry of 5.6.2008, indicating compliance of his directions by the
Yellow Gate police station. It is marked at Exh. 267.
224. A11 Narkar was produced before him on 5.6.2008 at 2.00
p.m. by PSI Thorat and the staff attached to Yellow Gate police station.
all of them asked to leave his chamber. Thereafter, P.W. 20 DCP Mr.
Dhoom along with A11 Narkar were present in his chamber and the
computer operator. P.W. 20 DCP Mr. Dhoom asked whether the time of
24 hours given to him was sufficient for reflection which he answered in
the affirmative. P.W. 20DCP Dhoom enquired with A11 Narkar
whether the police officers had pressurized him to make a confession,
A11 Narkar stated that still he wanted to make a confessional
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 248
statement and denied to have pressurized or promised by anybody to
make a confessional statement. He again made him aware that it was
not obligatory on his part to make a confession. It was informed that
the confessional statement can be used as evidence against him and he
might be convicted. The accused refused to take assistance of his
relatives or advocate during his confession. The accused again stated
that since he is repenting, he wants to confess. Accordingly, all this has
been recorded simultaneously in the form of question answer and
thereafter, the confessional statement of A11 Narkar was recorded. Its
print out was taken out which was read by the A11 Narkar and
thereafter, put his signature on each page and so also by P.W. 20 DCP
Mr. Dhoom. The said Part II is marked as Exh. 268.
225. The learned counsel Mr. Ponda for A1 objected exhibiting
the said statement on the ground that it is not a confession and at the
most, information relating to the murder of Kamlakar Jamsandekar. To
some extent, it is true that the tenor of language of confessional
statement of A11 Narkar is more or so is an information about the
murder of Kamlakar Jamsandekar. The prosecution has not succeeded
in bringing on record sufficiently through the evidence of any of the
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witnesses that A11 Narkar was in any way connected with the murder
of Kamlakar Jamsandekar.
226. P.W. 20 DCP Mr. Dhoom thereafter, testified that he sealed
both Part I and Part II and drafted a letter to the CMM Exh. 269. The
custody of the A11 Narkar is given to PSI Thorat with instructions to
produce A11 Narkar before the CMM. The office copy of the letter is at
Exh. 270. Report of the CMM is at Exh. 271.
227. The confidential letter Exh. 271 by the CMM, addressed to
this Court indicates that A11 Narkar has retracted his confession by
stating that his signatures were obtained on handwritten papers in
Hindi.
228. During cross, the witness admits that he got surprised when
he learnt that A11 Narkar had retracted his confessional statement
before the CMM by stating that he did not make any confessional
statement before P.W. 20 DCP Mr. Dhoom. He states that he enquired
with the A11 whether he could make his confessional statement in his
own handwriting upon which, A11 Narkar stated that his handwriting
was not good. He admits that he did not record this fact in Part I or
Part II or anywhere else. He also admits that he did not make any
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efforts to secure mechanical device to record the confessional
statement. Thereafter, certain questions were put about the office
procedure in receiving the letter, putting the rubber impression, making
initials etc. Thereafter, the witness was confronted with document
marked as Exhs. 263, 263A, 265, 266, 267 and 270 by suggesting that
those documents are fabricated later on which he denied. He admits
that he did not make any record of questions which he wanted to put on
the production of A11 Narkar before him on 4.6.2008. He put those
questions as occurred to him in verbatim. The witness in paragraph 20
admits that he was empowered to record statement only if it amounts to
a confession and not otherwise. As already stated, this accused has not
participated in the conspiracy of murder of Kamlakar Jamsandekar in
any manner and, therefore, his confession to that effect cannot be said
to be a confession in view of Section 18 of the MCOC Act, 1999. I,
therefore, sincerely feel that confession of A11 Narkar cannot be
accepted as his confession. However, from the other evidence discussed
hereinbefore, his confessional statement can be considered to the
extent for procurement of the handgun Art. 5 from village Vilaye which
was given by A8 Surendra.
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229. The prosecution has also examined P.W. 5 Pradip Shinde
Exh. 168, who worked with a security agency viz. “Captain Security”.
He is a friend of A11 Narkar. A11 introduced him with A12 Pratap,
A13 Rane and A10 Shrikrishna. He has identified all of them sitting in
the dock. The relations of this witness with these three accused are
friendly. Occasionally, A11 Narkar used to take him to Sakinaka to
meet A12 Pratap, A13 Rane and A10 Shrikrishna. On 34 occasions,
A10 Shrikrishna, A12 Pratap and A13 Rane had been to Sewri Court.
According to this witness, one Solanki was A12's foe who used to
attend the Sewri Court. A12 Pratap had planned to eliminate Solanki
and, therefore, these four accused used to go to Sewri Court. However,
their plan could not be materialized as on all those dates, the said
Solanki did not attend Sewri Court.
230. P.W. 5 Shinde testified that during the Corporation elections
of 2007, he had supplied 78 boys for A13 Rane's campaigning. At that
time, A12 Pratap paid him Rs.2500/, upon which, he told A12 Pratap
that the amount was inadequate. P.W. 12 Pratap thereupon gave him an
offer of Rs.2 lakhs and a revolver for eliminating Kamlakar
Jamsandekar who was elected as a Corporator from the same ward in
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2007. P.W. 5 Shinde told A12 Pratap that he would let him know
about the offer later on. On the same day, P.W. 5 Shinde met A11
Narkar. He apprised A11 Narkar about the offer given by A12 Pratap
upon which, A11 Narkar asked him to turn down the offer as the
amount offered was not adequate. A11 Narkar also told this witness,
he too had turned down the offer.
231. The learned counsel Mr. Rasal for Accused nos. 8, 12, 13
and 21 substantiated the evidence of this witness by eliciting from his
mouth that when this witness learnt from the newspaper about the
murder of Kamlakar Jamsandekar, they realized that this was the very
person for whom A12 Pratap has given an offer. The witness deposed
that it did not come to his mind that he should approach the police and
report about the offer given by P.W. 12 Pratap. This is ridiculous for no
person who had refused the offer for committing murder would
approach the police and to land himself in trouble. Similarly, questions
asked asked to some of the prosecution witnesses by the defence as to
why they did not approach the police. It is of common knowledge that
in our country, even a bona fide complainant aggrieved with something
does not easily approach the police for experience of common man is
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not very satisfactory. The crossexamination further reveals that the
offer to kill Jamsandekar for a consideration of Rs.2 lakhs is an
omission though the defence has tried to bring it in the form of
omission on record. It further reveals that while A12 Pratap gave him
an offer to kill Jamsandekar, he did not enquire with him for the reason
behind it. The crossexamination further reveals that this witness does
not remember the exact date on which four of them had been to Sewri
Court to kill Solanki. However, it can be verywell inferred that they
had been to Sewri Court to kill one Solanki. So long as is friendly
relations with A13 Rane are concerned, it proved to be an omission.
However, interestingly, it has been again admitted by this witness in
cross that the offer to kill Kamlakar Jamsandekar came from A12
Pratap, was one or one and half month prior to his murder. It fortifies
the fact that A12 Pratap had first gave an offer to A11 Narkar and then
to this witness which is also corroborated from the confessional
statement of A11 Narkar Exh. 268 wherein he had stated before DCP
that in the month of January 2007, A12 Pratap and A13 Rane asked
him whether he was accepted the offer of killing Kamlakar Jamsandekar
upon which he refused and thereafter, P.W. 5 Shinde informed him
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 254
about the said offer was given by A12 Pratap which this witness
refused.
232. During his cross by Mr. Pasbola, he admits that he was
arrested and prosecuted in an offence for stabbing in which he has been
acquitted. He was a prisoner in Yeravda Jail for 89 months. He denied
that he belongs to Bala Surve's gang. The defence has succeeded in
bringing on record that antecedents of this witness from which, it is
apparent that he is a criminal indulged in various activities in the past.
The witness denied the suggestion that when A12 Pratap gave him Rs.
2500/ at that time itself, he offered Rs.2 lakhs to the witness and a
revolver to kill Kamlakar Jamsandekar. Certain minor omissions are
brought on record with respect to the payment of Rs.2500/ by A12
Pratap for supplying the boys during the election campaign of A13
Rane. At the end of Part II of his cross, the fact that A12 Pratap gave
him an offer of Rs.2 lakhs for eliminating Kamlakar Jamsandekar and
also he had paid him Rs.2500/, has been fortified. The fact that A11
Narkar had turned down the offer on the ground of inadequacy of the
consideration and this witness had also turned down the said offer for
the same reason, is proved to be an omission only with respect to
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inadequacy of consideration and not otherwise. The fact remains that
A12 Pratap did offer Rs.2 lakhs for eliminating Kamlakar Jamsandekar.
233. During reexamination by the learned SPP Mr. Thakare, it is
elicited from this witnesss that A12 Pratap had paid him Rs.2500/
after the Corporation election was over and further he has been
acquitted in all the criminal matters. During further cross by Mr.
Pasbola, the learned counsel, the witness denied the suggestion that
whatever he has stated in the examinationinchief in relation to the
questions put to him in reexamination, was untrue.
CONFESSIONAL STATEMENT OF A3 ASHOKKUMAR JAISWAR:
234. P.W. 17 Vinaykumar Chaube Exh. 220, was working as a
Regional Passport Officer, Mumbai at the time of his evidence, which is
in the rank of DIG. In 2008, he was DCP, Zone IV, which is equivalent to
the SP. He too received a letter of Joint C.P. of Crime for recording the
confessional statement of A3 Ashokkumar Jaiswar which is at Exh. 221.
By letter Exh. 222, he directed the I.O. to produce A3 Ashokkumar
before him on 28.5.2008. He also wrote a letter to PI Bandra to keep
the escort ready on 28.5.2008. The copy of the letter is at Exh. 223.
235. A3 Ashokkumar was produced before him on 28.5.2008
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 256
along with a letter Exh. 224. He testified that he took the accused in
custody and then asked the officer Rodrigues who had brought the
accused to go back to his office. A letter was written to the IO in that
regard which is marked at Exh. 225. As has been done by the earlier
DCPs., same procedure was followed by P.W. 17 by asking the A3
Ashokkumar as to which language he would be comfortable, whether he
wanted to make confession voluntarily and whether he was pressurized
or offered any promise to make a confession and that nobody was there
except this witness. He assured him that now he is not in the custody of
the IO. A3 Ashokkumar was comfortable with Hindi language. He also
asked preliminary questions and realized that A3 wanted to make a
voluntary confession. He was also warned that he is not bound to make
it and if he does so, it can be used as evidence against him. The print
out was taken which is the Part I of the statement. It was read over to
the A3, which was affirmed by him and thereafter, signed on each page
of Part I. Similarly, P.W 17 Vinaykumar had signed all the pages.
Thereafter, he was given 24 hours time for reflection, interalia, taking
his medical examination and to keep him in a separate lockup at police
station Bandra. These directions were given to officer Mr. Patil. He was
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also directed to ensure that no police officers of DCB,CID meets A3
Ashokkumar in the lockup.
236. As such, he was again produced on 29.5.2008 at 2.30 p.m.
Office copy of the said letter with signature of officer Mr. Nitin Patil is
marked at Exh. 226. Again, after ensuring that except stenographer
and this witness, there was nobody else, P.W. 17 Mr. Vinaykumar again
put the questions to ascertain whether the confessional statement was
made voluntarily to which accused answered in the affirmative. The
accused denied to have been threatened or promised by anybody. The
24 hours' time was sufficient. the accused knew that the confession can
be used as evidence against him. The A3 Ashokkumar refused to have
assistance of his friends or legal advice during his statement. On being
asked, A3 said that due to repentance, he wanted to make a
confessional statement. Thereafter, A3 Ashokkumar narrated the
incident. P.W. 17 Mr. Vinaykumar testified that during recording of his
confessional statement, whenever required, he would take clarification
from him. A3 Ashokkumar gave all the details since beginning as to
how he was contacted for the purpose of committing the murder of
Corporator. After the statement was recorded, it was read over to him
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 258
and was called upon to state whether it was as per his narration. A3
Ashokkumar answered in the affirmative. A printout was taken and the
signature of A3 was obtained on each page. It was also signed by P.W.
17 Mr. Vinaykumar. P.W. 17 Mr. Vinaykumar further deposed that A3
Ashokkumar had read his confessional statement. It is marked as Exh.
227 (colly.).
237. Thereafter, P.W. 17 Mr. Vinaykumar prepared a
memorandum as per MCOC Rules and a certificate which is marked as
Exh. 227A. The witness was asked a question by SPP as to why did he
not put his certificate on the last page margin of Exh. 227 and why he
did type the certificate instead of making it in his own handwriting in
which, P.W. 17 Mr. Vinaykumar replied that the confessional statement
was taken out for being read over to the witness (it should have been
'accused' instead of 'witness'). He further said that moreover, the space
on last page was less to accommodate and, therefore, he made a
certificate on a separate sheet. Since the entire record of confessional
statement was type written on computer, he preferred to have the
certificate type written.
238. P.W.17 Mr. Vinaykumar then prepared a letter addressed to
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the CMM which was sealed in a cover and was given to Nitin Patil, who
was directed to produce the A3 Ashokkumar along with the sealed
envelope before the CMM for confirmation of the statement. The copy
of the said letter is at Exh. 228 and the copy of the letter addressed to
Nitin Patil is at Exh. 229. A3 Ashokkumar was produced before the
CMM on the next day, because recording of the statement was over by
7.30 p.m. and some more time was required for other compliance. He
instructed the IO to get back the custody of A3 Ashokkumar to him
after the purpose of the production of the accused was over. The office
copy of said letter is at Exh. 230.
239. His evidence indicate that the questions were formulated by
him on his own. Mother tongue of P.W. 17 Vinaykumar is Hindi. He
testified that he put the questions to A3 Ashokkumar which he found to
be important. The questions not forming Part I were less important
and, therefore, they are not found therein. In second part, the witness
had asked about 11 questions to A3. He denied the suggestion that on
the next day, he was supplied with the questions and answers thereto
and then he had recorded the same. He also denied that he was
supplied with the draft of the socalled confessional statement of A3
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Ashokkumar and then he prepared the statement based on that. The
witness admits that as a police officer, he knew that at times, the
accused retract their confessions. He is also aware that the object of the
provisions of producing the accused before the CMM is to ascertain as
to whether accused voluntarily made a confessional statement and
whether in fact he made such a statement. When he realized that the
accused had stated before the CMM that he had not made any such
confessional statement, he was surprised. He also denied the
suggestion that he and other officer compelled A3 Ashokkumar to put
the signature on readymade papers.
240. The learned counsel Mr. Pasbola crossexamined P.W. 17 Mr.
Vinaykumar wherein he admits that Part I and II did not indicate that he
questioned the accused about the date of his arrest. Further, cross
examination mainly relates to the correspondence between Joint C.P.
and P.W. 17 Mr. Vinaykumar and about various instructions he had given
to police officer Mr. Patil while handing over the custody of A3 and also
about the directions to be taken while he is in custody at Bandra police
station and about the other instructions given to the Sr. PI of police
station Bandra. He admits that he did not personally feel that he should
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examine the body of the accused when he was produced before him on
both the days. According to P.W. 17 Mr. Vinaykumar since A3 was
already medically examined and, therefore, he did not feel it necessary
to examine him again. He admits that he had not paid visit to the
lockup during the stay of A3 over there. He further admits in cross
examination that he took 1520 minutes to record the questions put to
A3 Ashokkumar on second day i.e. on 29.5.2008 and had took 5 and ½
hours to record the entire Part II. Around ten times, he sought
clarification from A3 Ashokkumar during recording of the main
confessional statement. These questions suggest that there was no draft
questionnaire given to the witness as suggested by the learned counsel
Mr. Ponda for A1, for it would not have taken five hours or more to
record the answers of the readymade questionnaire.
241. The witness was asked about distinction of the meaning of
the word 'voluntarily and willingly'. The witness testified that he knew
that he should record confessional statement if the same is made
voluntarily. He knew that he had to record his satisfaction as to the
voluntariness of the confessional statement of A3 Ashokkumar.
Further, the witness testified that A3 was before him while he made the
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certificate. A3 Ashokkumar had already signed his confessional
statement before the witness took out printout of this certificate. There
was hardly any time gap between A3 signing his confessional statement
and taking of the printout by the witness. It also suggests that the
questions were typed on a computer. Its printout was taken out. As
such, the defence could not rebut the cogent testimony of P.W. 17 Mr.
Vinaykumar.
242. It is needless to reiterate Part I of the confessional statement
of A3 Ashokkumar Exh. 227 as it has been recorded in due compliance
of the procedure. I will switch over to the second part which is quite
important and has been duly recorded as per the procedure laiddown.
243. In his confessional statement, A3 Ashokkumar Jaiswar had
stated that his age is 21 years and is residing at Munshi Mahal, Shankar
along with his parents and three brothers. He got acquainted with A4
Narendra while studying in Municipal School, Powai, Mumbai. The
cousin of Narendra i.e. A5 Anil Giri also became a friend of A3
Ashokkumar. Both of them used to visit the house of A3. He was also
introduced with the maternal uncle of A5 Anil i.e. A2 Vijay Giri. A5
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was working in film industry while A4 Narendra and A2 Vijay were
autorikshaw drivers. Earlier, A2 Vijay and A4 Narendra used to reside
at Sakinaka where they used to drive autorikshaw.
244. In the month of February 2007, A2 Vijay called A3
Ashokkumar on his mobile No. 9224676768 from a PCO of Dahisar and
called him at Mangatram Petrol Pump, Bhandup. Accordingly, at about
6.30 p.m., on the same day, A3 Ashokkumar met A2 Vijay. At that
time, A2 Vijay said that “Ek Ko Marne Ka Hai. Apne Ko Adhai Lakh
Rupaya Milega, Aise Batakar, Yaha Kaam Babune (A10), Diya Hai Aise
Bataya”, which means, A2 Vijay told A3 Ashokkumar that they would
get Rs.2.50 lakhs to kill a person and that the “work” is assigned by
A10 Shrikrishna alias Babu Gurav. A3 Ashokkumar was called to
Sakinaka junction on the next day at 10.00 a.m. Accordingly, he
reached there. He met A2 Vijay and A4 Narendra. A2 Vijay and A4
Narendra introduced him to A10 Shrikrishna @ Babu. A10 Babu
called somebody on phone and said that he had reached there. After
some time, two persons came on a motorcycle who were introduced by
A12 Pratap and A13 Rane. A10 Shrikrishna took A2 Vijay aside and
they had some conversation. A2 Pratap and A13 Rane left the place.
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A10 Shrikrishna took A3 Ashokkumar, A4 Narendra and A2 Vijay to
Chandivali where he had shown office of 'Amit Travels' and then called
them at 10.00 a.m. on the next morning. On the next day, A3
Ashokkumar reached near Ram Baug police station as per the
instructions of A2 Vijay. A2 Vijay, A4 Narendra and A5 Anil were
already present over there. A2 Vijay called A10 Babu on his mobile
phone. Thereafter, all of them went to the office of 'Amit Travels'. The
office was closed. After some time, A10 Babu came over there on a
motorcycle and then called A12 Pratap on mobile. After some time,
A10 Babu brought the key of the office and opened it. All of them
entered into the office. After some time, A5 Anil and A3 Ashokkumar
also entered into the office. Few minutes thereafter, A2 Pratap came to
the office.
245. After some time, A2 Vijay and A4 Narendra went out of the
office. In the office, a bag was kept on the table. There was a handgun,
two rounds and three knives which were taken out by A2 Vijay and had
shown to them and told them that he has already seen the weapon.
After some time, A10 Babu came out and gave Rs.10,000/ to A2 Vijay.
A2 Vijay instructed A3 Ashokkumar and A4 Narendra to take
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possession of the said bag, containing the weapons, on the following
day. At that time, A3 Ashokkumar saved the mobile number of A10
Shrikrishna @ Babu. A2 Vijay gave the number of A3 Ashokkumar
and A5 Anil to A10 Babu. Thereafter, all of them left the office of Amit
Travels.
246. On the following day, at 9.30 a.m., A3 Ashokkumar and A4
Narendra reached Amit Travel's office which was closed. A3
Ashokkumar called A10 Babu. He opened the office and took out the
bag from the drawer of the table and gave it to A4 Narendra and also
gave Rs.10,000/ to A4 Narendra. A3 Ashokkumar further states that
thereafter, he left for his home. In the evening, A2 Vijay informed A3
Ashokkumar that A10 Babu had given him a motorcycle for the “work”.
247. On the next day, as per the instructions of A10 Babu, A3
Ashokkumar reached to the Office of Amit Travels where A2 Vijay, A4
Narendra and A5 Anil were already present. After some time, A12
Pratap also reached the office of 'Amit Travel's who was followed by a
boy, who was introduced by A12 Pratap as Addu (P.W.4) and said that
he would show the person who was to be killed, and his house.
Thereafter A4 Narendra and A5 Anil along with Addu left the office of
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Amit Travels on a 'Discover' motorcycle. They came back after one hour
when A4 Narendra and A5 Anil said that Addu had shown them the
'person' and his house, who was to be killed.
248. On the following day and thereafter between 10 a.m. to 1
p.m. for 1015 days, A2 Vijay, A3 Ashokkumar, A4 Narendra and A5
Anil used to go to Asalfa village, AndheriGhatkopar Link Road,
Ghatkopar in search of the person shown by Addu, however, they could
not see him. It was informed by Addu that the person he showed
always sports a red coloured 'Tikka' (Vermilion) on his forehead.
During the 'search operation' of 15 days, they used to park the
motorcycle beside a country liquor bar, near the bus stop of Asalfa
village. Everyday they used to take the bag containing weapons and
used to deposit it in the afternoon. A3 Ashokkumar further states that
during those days, they used to have lunch in hotel Kamal. A2 Vijay
used to apprise A12 Pratap about their efforts, everyday. He also used
to talk to A10 Babu.
249. On 2nd March 2007, as usual, all the four i.e. A2 Vijay, A3
Ashokkumar, A4 Narendra and A5 Anil reached the office of Amit
Travels. At that time, A5 Anil demanded money from A2 Vijay upon
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which, A2 Vijay refused. A5 Anil got angry and went away.
Thereafter, A2 Vijay, A3 Ashokkumar and A4 Narendra took the bag
and reached Asalfa village. As usual, they started searching for the said
person at different places, but could not find him. In the afternoon,
A12 Pratap called on the mobile of A3 Ashokkumar and talked with
A2. He informed A2 Vijay that the “target” would be going to the
graveyard. At that time, there was a funeral from the said area. These
three accused participated in it and reached the Bhat Wadi Graveyard,
but could not see the “target”. A2 Vijay immediately informed A12
Pratap on mobile who asked them to immediately come back to the
house of the “target”. At about 3.30 p.m., when they reached near the
house of target, they noticed, he was sitting with 34 persons. The
accused came out and waited for those persons to leave. A3
Ashokkumar further states that after one hour, he reached near the
house and found the said person siting alone in a chair. He immediately
came out and informed about it to A2 Vijay and A4 Narendra. A2
Vijay and A4 Narendra went in the lane and entered into a toilet on the
left side. A2 Vijay took the bag containing the weapons from A3
Ashokkumar, took out the gun and loaded one round in it. He kept
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another round in his pocket. A3 Ashokkumar and A4 Narendra kept
one knife each with them. A3 Ashokkumar concealed his knife in his
socks. They walked through the lane and reached near the house of
“target”. A3 Ashokkumar stopped near the window while A2 Vijay and
A4 Narendra stopped near the door. A4 Narendra stopped outside the
door when A2 Vijay took out his gun and fired a shot at the said
“target”. Immediately after firing a shot, all the three came out and
escaped on the motorcycle, which was driven by A4 Narendra. They
reached Ghatkopar Narayan Nagar in a lane. They left the motorcycle
over there and immediately thereafter A2 by using the mobile of A3
Ashokkumar informed A12 Pratap that they had accomplished the
'work' and the motorcycle was left near a mosque near Narayan Nagar.
They went to a toilet. A2 Vijay kept one round in the said bag and so
also A3 Ashokkumar and A4 Narendra kept their knives in it. A2
Vijay handed over the said bag to A3 Ashokkumar and asked him to go
back to his house. Accordingly, A3 Ashokkumar returned to his house
with the bag. A3 states that on the next day, they came to know after
reading the newspaper that the person who was killed by them was a
Corporator of Shiv Sena viz. Kamlakar Jamsandekar. He further states
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that two days thereafter, A2 Vijay called A3 Ashokkumar on telephone
and asked him to reach Borivali National Park. Accordingly, A3
reached Borivali along with the bag containing the weapon and gave it
to A2 Vijay. A2 Vijay gave him Rs.4000/ by saying that he would pay
the balance afterwards. A3 Ashokkumar further states that in the
month of December 2007, when A12 Pratap and A13 Rane came out,
A2 Vijay and A4 Narendra approached them demanding the balance
amount as they (A12 Pratap & A13 Rane) were demanding the bag
containing the weapons. However, A2 Vijay stated that they would not
return the bag unless the balance amount is paid. Further, A3
Ashokkumar states that on 26th April 2008, the police arrested A2 Vijay,
A4 Narendra and himself at Girgaon, Mjumbai.
CONFESSIONAL STATEMENT OF A4 NARENDRA GIRI
250. P.W. 15 Rajendra Ganpatf Dabhade Exh. 209, was working
as a DCP, Zone XII at the relevant time. He deposed that he recorded
the confessional statement of A4 Narendra Giri for which he had
received a communication from Joint C.P. Mr. Rakesh Maria on 3rd June
2008 Exh. 210. Pursuant to which, he made a correspondence with the
I.O. of the case as well as the Sr. PI of Gamdevi police station. He
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directed the IO P.W. 37 ACP Durafe to produce A4 Narendra before him
on 4th June 2008. At about 11 a.m., PSI Ninad Sawant along with a
letter Exh. 212 produced A4 before P.W. 15 DCP Dabhade. After the
instructions of P.W. 15 DCP Mr. Dabhade, all the police personnel left his
chamber except his typist Mr. Surve. P.W. 15 DCP Mr. Dabhade had
directed his orderly Mr.Ovhal to ensure that no third person should
enter his office without his permission. Thereafter, he put questions to
the A4 as regards the willingness of the accused to make a confessional
statement. A4 Narendra volunteered to make a confessional statement.
P.W. 15 DCP Mr. Dhabade informed him that he was no longer in the
custody of IO and that he was not in any way connected with the
investigation. He also enquired with the accused no.4 whether he has
been compelled, induced, promised or threatened to make a confession
which he answered in the negative. He also informed A4 Narendra
that he would be given 24 hours time for reflection. Accordingly, he
recorded Part I. He also informed the A4 Narendra that if he makes
confessional statement, it will be used as evidence against him. He also
asked him whether he would like to have presence of his advocate
during the course of confessional statement which the accused denied.
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Part I was typed by Mr. Surve simultaneously and its printout was taken
out and was signed by P.W. 15 DCP Mr. Dabhade and A4 Narendra.
Thereafter, P.W. 15 DCP Dabhade summoned PSI Subhalkar, attached to
Gamdevi police station. A4 Narendra was placed in his custody with a
direction to keep him in a seaprate lockup to ensure that no officer
related to the investigation or any other police officer would meet A4
in the lockup. The letter to that effect is at Exh. 213.
251. On the following day, PSI Waghmare produced A4
Narendra before P.W. 15 DCP Mr. Dabhade at 3 p.m. P.W. 15 DCP Mr.
Dabhade asked PSI Waghmare and staff to leave the office and
thereafter, he ensured that A4 Narendra, typist Mr. Surve and himself
present in the office. He again enquired with the A4 Narendra about
his willingness and voluntariness to give a confessional statement. the
A4 expressed his willingness to give a confession. He also ensured
from A4 Narendra whether anybody from investigation agency met him
in the lockup to influence, which he replied in the negative. A4
Narendra declined to have presence of his advocate during his
statement. When P.W. 15 DCP Mr. Dabhade was satisfied about the
voluntariness of the confessional statement to be made by A4
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Narendra, he recorded his statement in Hindi. He obtained the
printout. He obtained the signature of A4 Narendra. It was read over
and explained to A4 Narendra. The accused affirmed the same. The
statement was also signed by P.W. 15 DCP Mr. Dabhade. The said
statement is Part II and is marked at Exh. 214. P.W. 15 DCP Mr.
Dabhade appended a certificate stating the fact that he was satisfied
about the voluntariness of the confessional statement made by the A4
Narendra. The certificate is the part of Exh. 214. The recording was
concluded by 3.45 p.m. The learned SPP asked as to why P.W. 15 DCP
Mr. Dabhade did not append the statement at the bottom of the
statement upon which he answered that he was under the impression
that such a certificate ought to have been on a separate page.
Thereafter, P.W. 15 DCP Mr. Dabhade sealed the entire confessional
statement and placed in the custody of PSI Waghmare and directed him
to produce A4 Narendra before the CMM along with the confessional
statement. He also instructed him to place the A3 in the custody of the
IO after the purpose before the CMM was over.
252. In crossexamination by Mr. Ponda for A1, P.W. 15 DCP Mr.
Dabhade has stated that he had no occasion to record the confessional
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statement before the one in question. He was not aware that most of
the accused later on retract their confessional statement. He was asked
to go through Sec. 18 of the MCOC Act, wherein, there is no reference
of promise, threat and allurement. He further states that in order to
ascertain the voluntariness, he had put the questions regarding promise,
threat or allurement. He admits that he is aware about the confessional
statement which may be recorded by mechanical devices like cassettes,
tapes, sound tracks etc. However, he is not aware about the object
behind making such provision. The witness was not aware since when
A4 Narendra was in police custody. He further admits that on
5.6.2008, soon after recording of confessional statement, he drafted a
letter to CMM immediately. He further states that he had instructed PSI
Waghmare to personally produce A4 Narendra before the CMM.
253. In the crossexamination by learned counsel Mr. Pasbola,
P.W. 15 DCP Dabhade admits that he was not aware about the subjective
satisfaction to be recorded before commencement of recording
confessional statement. He also admits that there is an ample space in
Exh. 214 (Part II) on which he could have recorded the certificate. The
reason which the witness gives is that, on the bottom of the last page of
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Exh. 214, the certificate was not recorded as printout of the statement
was already taken out for obtaining signature of the A4 Narendra. The
reason appears to be justified. He further testified that then he thought
that the same page could not be placed in machine for recording his
certificate thereon, but further admits that the certificate could have
been recorded before the taking out the printout on the same page. His
attention was drawn by the learned counsel to Rule 3(6) of MCOC Act,
which provides that the certificate has to be in the form given therein.
There was no crossexamination by advocates Mr. Moomen and Mr.
Sejpal.
254. Now, switching over to the Part II of the confessional
statement which is identical to that of A3 Ashokkumar and, therefore,
need not be reiterated.
255. Now, the last confessional statement is of A5 Anil Giri,
which was recorded by P.W. 23, DCP Vijaysingh Jadhav Exh. 284. P.W.
23 has been working as DCP Headquarter No. I, Mumbai. He recorded
confessional statement of A5 Anil Giri in this crime pursuant to a
communication by Joint C.P. Mr. Rakesh Maria through a letter Exh.
285. Accordingly, he wrote a letter to the I.O. to produce A5 Anil
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before him on 4.6.2008 at 10.30 hours. The office copy of the letter is
at Exh. 286. PSI Chavan attached to DCB,CID acknowledged receipt of
the said letter. P.W. 23 DCP Jadhav sent a letter to Sr. PI, LT Marg police
station for making arrangements of escort party on 4th June 2008. The
letter is marked at Exh. 287.
256. Accordingly, on 4.6.2008, PSI Chavan produced A5 Anil in
veil before P.W. 23 DCP Mr. Jadhav along with a letter Exh. 288. In his
chamber, P.W. 23 DCP Mr. Jadhav asked PSI Chavan and his party to
leave his office. He ensured that except A5 Anil and lady constable Ms.
Sunita Patil who would operate the computer, none was there. He
asked constable Borse to close the door of his chamber and not to allow
anyone in his chamber without his permission.
257. P.W. 23 DCP Mr. Jadhav put preliminary questions to A5
Anil and was found him comfortable after the discussion. A5 Anil
could understand Hindi language well. He put him some questions in
Hindi. A5 Anil wanted to make a confession in connection with the
murder of Kamlakar Jamsandekar. The witness introduced himself and
informed the accused that he is in no way connected with the
investigation of the crime. He assured the accused that he is in his
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custody. The witness also asked A5 Anil whether he had any complaint
against the officer connected with the investigation which he replied in
the negative. After ascertaining his name, age etc., he examined the
person of the accused and found him normal. The witness also
informed the accused that he is not bound to make a confession and if
he makes so, that can be used as evidence against him. He also ensured
from A5 whether he was threatened or promised to make a confession
which A5 answered in the negative. He also informed A5 Anil that if
he retracts his confession, he would not be sent back to the
investigating agency. He also enquired with the accused whether he
requires presence of his friends, relative or advocate during recording of
his confession. A5 declined the offer. He was again asked whether he
wanted to make a confession voluntarily which he answered in the
affirmative. The witness had given 24 hours' time for retraction and
informed him that he would be in his custody and kept in the lockup at
L.T. Marg police station.
258. The entire facts have been recorded in the computer
simultaneously and thereafter, its printout was taken. P.W. 23 DCP Mr.
Jadhav read over it to A5 Anil who affirmed about its contents and
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thereafter, signed each page of the proceeding. P.W. 23 DCP Mr. Jadhav
had also signed on each page of Part I.
259. Thereafter, custody of the A5 Anil was handed over to PSI
Machhindra of L.T. Marg police station with a direction to keep A5 Anil
in a separate lockup. It was also directed that nobody should meet the
accused from the investigating agency. The Part I is at Exh. 289. P.W.
23 DCP Mr. Jadhav had also directed the PI of LT Marg police station to
get the accused medically examined and directed to produce him on
5.6.2008 at 17 hours. The said letter is at Exh. 290. P.W. 23 DCP Mr.
Jadhav further testified that at late in the night, he contacted LT Marg
police station to ensure that the accused was medically examined and
that his instructions were followed. He obtained certified copies of the
station diary of the police station which are collectively marked at Exh.
291. The DCP and Additional C.P. of that region appoint some officers
to have surprise visit of the lockup during night hours. The station
diary entry at Sr. No. 67 speaks of the said exercise.
260. He further deposed that on 5th June, 2008 at 17.15 hours,
PSI Machhindra produced A5 Anil before him. They left the office.
The lady constable Ms. Sunita Patil was called for recording the
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proceedings. P.W. 23 DCP Mr. Jadhav asked constable Borse to close the
door of the chamber and ensured that nobody would enter. P.W. 23 DCP
Mr. Jadhav realized from the appearance of A5 Anil that he was not
under pressure and asked whether 24 hours' time was sufficient for
reflection to which A5 answered in the affirmative. He also enquired
with A5 whether any police officer connected with the investigation
met him in the lockup. He replied in the negative. He informed A5
that he was not bound to make a confession and that if he makes a
confessional statement, it might be used as evidence against him. A5
said that he was aware of it. A5 Anil also refused to have presence of
his relatives, friends or lawyer during the recording of statement. On
being asked, A5 told that he wants to make a confession about
whatever he knew about the offence and wanted to tell the truth. P.W.
23 DCP Mr. Jadhav recorded the confession as it progressed further
simultaneously. The witness realized that A4 Narendra was giving his
statement voluntarily. It was completed by 19.30 hours. A printout was
taken out. It was read over to the accused. The A4 Narendra told the
witness that it was recorded as per his say and was correct. The A4
Narendra signed each page of his statement Part II. P.W. 23 DCP Mr.
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Jadhav also signed each page thereof. It is at Exh. 289A. The
certificate is at Exh. 289B. It bears signature of P.W. 23 DCP Mr. Jadhav,
which is in his handwriting. P.W. 23 DCP Mr. Jadhav sealed Part I and
Part II along with certificate in an envelope and gave it to PSI
Machhindra along with the A4 Narendra with a direction to produce
him before the CMM on 6.6.2008 at 10.30 a.m. He also wrote a letter
to the Sr. PI in that regard. The office copy is at Exh. 292. He wrote a
letter to the Sr. PI instructing him to keep the accused in a separate
lockup and also get him medically examined and nobody should be
allowed to meet him. The office copy of the said letter is at Exh. 293.
P.W. 23 DCP Mr. Jadhav ensured that the accused was medically
examined on 6.6.2008, on the same day, he wrote a letter to the CMM
Exh. 294. Thereafter, P.W. 23 DCP Mr. Jadhav wrote a letter to the IO
asking him to take the custody of A5 Anil after the production before
the CMM was over. Accordingly, PSI Chavan took the custody of the
accused no.5. The letter to that effect is at Exh. 295. The report of the
CMM is at Exh. 296.
261. The confidential letter of CMM addressed to this court dated
6.6.2008 reveals that when the contents of the confessional statement
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of Part II were read over to the A5 Anil, he stated that his signatures
were obtained on a paper in which, something was written in Hindi.
The A5 Anil had stated before the CMM that he had not given any
confessional statement before the DCP. A2 Vijay is his uncle. He
resides in Goregaon right from the childhood and had studied up to 10th
standard in Mumbai. He does not know about the murder of Shiv Sena
Corporator Kamlakar Jamsandekar. Nobody had paid him Rs.1000/,
especially A2 Vijay. A2 Vijay resides at Dahisar. He works as an
Assistant Cameraman with Balaji Telefilms. The signature was
obtained on a paper which was already written. He does not know
anything about this crime. He had not committed any offence. He had
not given any confessional statement.
262. P.W. 23 DCP Mr. Jadhav has also accorded sanction under
the Arms Act. He testified that he had perused the seizure panchanama
of the firearm and the ballistic expert's report and after applying his
mind, he satisfied that there was enough material against A2 Vijay for
his prosecution under Arms Act. He, therefore, accorded sanction,
which is proved at Exh. 297.
263. During his crossexamination by learned counsel Mr. Ponda
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for A1, usual questions were asked about formulating of questions for
being put to the accused, about receipt of letters Exh. 285, its timing
and about other documents Exhs. 289 and 289A. He denied that he
obtained readymade questionnaire in advance from the IO and that he
simply combined some of the questions and split some of it and put to
the accused on both days. He testified that he recorded the confessional
statement of A5 Anil as narrated by him except on one or two
occasions where he had been intervened, as the accused had changed
the sequence of events during the narrative part. The attention of the
witness has been drawn to some portion underlined with red ink on the
5th line of third paragraph of narrative part, which reads that “at that
time, A2 Vijay told this accused about the name of A10 Shrikrishna
alias Babu”. The witness did not ask the accused whether he knew
Babu. The purpose for asking this question is not clear as it is a
confessional statement of the accused even in a narrative form and
recorded as per his say. The witness admits that after going through
Exh. 285, he realized that it was a case of conspiracy and murder. He
did not question the accused who were the party of the conspiracy and
did not question him what role he played in the conspiracy. The witness
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denied that Exh. 285, 286 and 288 are fabricated documents. He also
denied that documents at Exhs. 287 and 290 to 294 are also fabricated
documents. He denied that the accused did not make any confessional
statements. P.W. 23 DCP Jadhav testified that he was aware that a
confessional statement could have been recorded on any mechanical
devices. He is also aware that at any point of time, the accused can
retract their statements. He was also aware that after recording a
confession, the accused should be immediately produced before the
CMM. As he was preoccupied with the meeting, he did not give
instructions to produce the accused before him before 5.00 p.m. He
admits that it was his decision to keep accused in the lockup, but denied
that he had deliberately kept A5 Anil in the lockup of LT Marg police
station as he was aware that C.R. No. 118/2008 had registered against
him with L.T. Marg police station. He also denied that accused was
conveniently produced before him at 5.00 p.m. so that he can be kept in
a lockup overnight and was tortured with a view that he would not
retract the confessional statement on production before the CMM. The
entire crossexamination is intended to show as to how the officer had
flouted the procedural aspects of the recording the confessional
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statement in which the defence could not succeed for the reason that all
the suggestions have been denied and the witness has clarified certain
delays or minor errors which occurred during recording of a confession.
It should not be lost sight of the fact that all the DCPs are the high rank
IPS officers. However, in view of the ratio laiddown by the Hon'ble
Supreme Court cited supra, in the case of Mohd. Farooq Abdul Gafur
and anr. vs. State of Maharashtra, reported in 2010 (3) AIR Bom R
(S.C.) 551, such minor things cannot be looked into to find some fault
if in substance, the confessions are found to be reliable and acceptable.
It is, more particularly, in view of the fact that the other evidence in the
form of CDR and other witnesses exists to which this confessional
statement corroborates in material particulars.
264. There is no material on record to show that the IO had
asked P.W. 23 DCP Mr. Jadhav to accord sanction for prosecution of
concerned accused persons for transport and manufacture of firearm. It
is, therefore, obvious that A4 Narendra, A5 Anil, A8 Surendra, A11
Narkar, A12 Pratap and A13 Rane cannot be held liable for violation of
any of the provisions of Arms Act except A2 Vijay Giri.
265. No doubt, there are certain minor discrepancies in the
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sanction order Exh. 297 which does not indicate the date on which P.W.
23 DCP Mr. Jadhav received the proposal and the documents submitted
by the IO. Surprisingly, P.W. 23 DCP Mr. Jadhav admits that on going
through all the papers, he did not find material to accord sanction for
transporting and manufacturing firearm. This admission is quite
strange which indicates that either this witness had not gone through
all the papers of prosecution or perhaps unable to understand the legal
provisions under the Arms Act. Be that as it may. He admits that the
sanction was accorded in respect of possession of firearm on 26th April
2008. As already held that it was A2 Vijay who shot the fire resulting
into death of Kamlakar Jamsandekar by using the same weapon and,
therefore, merely because the sanction was accorded to prosecute him
in respect of the firearm on 26.4.2008 would not absolve him from
possessing the firearm on the date of commission of the offence. A
perusal of Exh. 297 reveals that P.W. 23 DCP Mr. Jadhav had after going
through the record and after application of mind accorded sanction to
prosecute A2 Vijay for contravention of the provisions of Sec. 3
punishable u/s. 25(1B)(a) of the Arms Act. I, therefore, do not see
that the sanction is badinlaw. Section 3 of the Arms Act reads thus:
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“Licence for acquisition and possession of firearms and ammunition. (1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder”.
25(1B)(a): “Whoever, acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3”.
266. It is clear that no prosecution can be instituted against any
person in respect of any offnece u/s. 3 which applies to this case also,
without the previous sanction of the District Magistrate. Therefore, this
mandate of law cannot be taken as a mere formality, being of sinequo
non before institution of any prosecution. P.W. 23 DCP Mr. Jadhav
appears to have accorded sanction in view of Section 39 of the Arms
Act, 1959, after taking into consideration the record of the accused and
the attending circumstances thereof.
267. Mr. Pasbola while crossexamining P.W. 23 DCP Mr. Jadhav
tried to bring on record certain minor technical flaws which do not go
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to the root of the matter. The crossexamination of this witness on the
point of confessional statement of A5 Anil is in similar lines to that of
other DCPs.
268. The learned counsel Mr. Pasbola and Mr. Sejpal have placed
reliance on several rulings. The said rulings are as under:
(1) Veera Ibrahim vs. State of Maharashtra, (1976) SCC Cr 278.
(2) Pakhala Narayan Swami vs. Emperor reported in AIR 1939 Privy Council 47.
(3) Palvindar Kaur vs. The State of Punjab reported in AIR 1952 Supreme Court 354.
(4) Omprakash vs. State of UP reported in 1960, SC 409.
(5) Dagdu vs. State of Maharashtra reported in (1977) 3, SCC 68.
(6) Thimma and Thimma Raju vs. State of Mysore reported in (1970) SCC Cri 320.
269. The ratio laiddown in the aforesaid rulings is that
confession must pass the twin test of voluntariness and truthfulness.
The court may refuse to act upon a confession even if it is permissible
in evidence if the facts and circumstances surrounding the making of
confession appear to cast a doubt on the veracity or voluntariness of
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confession. The court must also see that surrounding circumstances do
not indicate that a confession is inspired by some improper and co
lateral circumstances to suggest it may not be true.
(7) Arup Bhuyan vs. State of Assam reported in (2011) 1 SCC (Cri) 855.
270. It is held by the Hon'ble Supreme Court that confession
made to a police officer u/s. 15 of the TADA Act in the absence of
corroboration can sustain a conviction on its sole basis, however, it
being a weak kind of evidence and considering widespread and rampant
practice of police to use thirddegree methods for extracting confessions
from accused, courts should be cautious while accepting the evidence.
In the instant case, dehors confessions, other evidence has substantiated
the commission of the offence which is fully corroborated by the
confessional statements. There is nothing to show that a third degree
method was used for extracting the confession and, therefore, this
authority would be of no help to the defence.
(8) Pacho vs. State of Haryana reported in (2011) 10 Supreme Court Cases 165.
(9) Goma Rama and others v. Emperor reported in AIR (32) 1945 Bombay 152.
(10) Parmanand Pegu vs. State of Assam
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reported in (2004) 7 Supreme Court Cases 779.
This authority is on Sec. 24 of the Evidence. The relevant paragraph of
this citation can be reproduced as under:
“Before acting on a confession made before a Judicial Magistrate in terms of Section 164, the court must be satisfied first that the procedural requirements laid down in subsections (2) to (4) are complied with. These are salutary safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. After this first requirement of acting on a confession is satisfied, the court, called upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. The endeavour of the court should be to apply its mind to the question whether the accused was free from threat, duress or inducement at the time of making the confession. In doing so, the court should bear in mind, that under Section 24 of the Evidence Act, a stringent rule of proof as to the existence of threat, duress or inducement should not be applied and a prima facie opinion based on evidence and circumstances may be adopted as the standard laiddown. Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded as presumptive evidence of its truth. Still, there may be
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circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value. In order to be assured of the truth of confession, the rule of prudence is that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. The expression “corroboration of material particulars” does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true”.
271. It can be seen that the authorities relied upon by the defence
are mostly in respect of the offence of IPC and the nature of offence in
the present case is of organized crime which is a continuing unlawful
activities and, therefore, law will have to be appreciated in the light of
the nature of the offence and more particularly in view of Section 18 of
the MCOC Act, 1999.
272. The prosecution has placed reliance on the following
authorities:
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(1) State of Maharashtra vs. Bharat Chaganlal Raghani & others reported in (2001) 9 Supreme Court Cases 1.The relevant paragraph from the said ruling can be quoted for advantage as under:As per Section 15 of the TADA Act, while discussing retracted confession, it is held that: “if confession is found to have been made voluntarily and in accordance with law, it is held to be a good confession. Requirement of corroboration in such a case is not a rule of law, but a rule of prudence. Sufficiency of corroboration depends upon facts and circumstances of the case, a general corroboration of confession statement is sufficient of corroboration on confessional statement”. As such, this ratio is clearly applicable to the present case.
273. As already stated above, the judgment directly under the
provisions of MCOC Act, delivered by the Hon'ble Supreme Court is
reported in 2010(3) AIR BOM R(SC) 551 (S.B. Sinha, Dr.
Mukundakam Sharma, JJ), Mohd. Farooq and anr. v. State of
Maharashtra wherein, almost all the aspects have been considered
including the evidentiary value of TI Parade, its delay, the statement of
accused u/s. 313 of Cr.P.C., confessional statement, applicability of the
provisions of Cr.P.C. and Evidence Act etc. The relevant para can be
reproduced for advantage:
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“Para 76: “The contention of the learned counsel appearing for accused persons that there was inordinate delay in conducting the TIP cannot be accepted in view of the fact that both the accused persons were taken into custody on 25.6.1999 whereas the TIP was held on 10.8.1999. Therefore, the TIP was conducted only after a period of 45 days which is not such a long period to cast any doubt over the evidentiary value of the TIP. Even otherwise, a TIP does not constitute substantive evidence but can only be used for corroboration of the statement in court. It is primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation is proceeding on the right lines. The substantive evidence is the evidence of identification in court, which in the present case has been done by P.W. 18”. This court in the case of Amitsingh Bhikamsingh Thakar v. State of Maharashtra, (2007) 2 SCC 310, at page 315, has succinctly observed as follows:“As was observed by this court in Matru v. State of U.P. 1 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain2). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is
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that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime”.
274. On similar points, the prosecution has also placed reliance
on a ruling in the case of (2) Prakash Kumar alias Prakash Bhutto vs.
State of Gujarat reported in (2005) 2 Supreme Court Cases 409
with Abdulwahab Abdulmajid Shaikh and others vs. State of
Gujarat with Musa Khan alias Baba Khan vs. State of Gujarat. The
Hon'ble Supreme Court in the said ruling has also held about the
applicability of Section 12 and 15 of the TADA Act. It is further held in
paragraph 20 about interpretation of statute which can be reproduced
as under :
Para 20: “Before we proceed to consider the rigours of Sections 15 and 12 we may at this stage point out that it is a trite law that the jurisdiction of the court to interpret a statute can be invoked only in case of ambiguity. The court cannot enlarge the scope of legislation or intention when the language of the statute
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is plain and unambiguous. Narrow and pedantic construction may not always be given effect to. Courts should avoid a construction which would reduce the legislation to futility. It is also well settled that every statute is to be interpreted without any violence to its language. It is also trite that when an expression is capable of more than one meaning, the court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having regard to the consequences of the alternative constructions”.
It is also apposite to reproduce Para 14 which reads thus:Para 14: “The more stringent the law, the less is the discretion of the court. Stringent laws are made for the purpose of achieving its objectives. This being the intendment of the legislature the duty of the court is to see that the intention of the legislature is not frustrated. If there is any doubt or ambiguity in the statutes, the rule of of purposive construction should be taken recourse to, to achieve the objectives. (See Swedish Match AB v. Securities & Exchange Board of India, Scale para 84 at p. 176)”.
(3) The learned SPP has placed reliance on the authority
in the case of Krishna Mochi and ors. vs. State of Bihar reported in
AIR 2002 SC 1965.probably to demonstrate as to how in a Criminal
Appeal, the prosecutor has to face somany odds and how to appreciate
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the evidence of a witness in a given case. Paragraph 76 and 77 has
been highlighted by the learned prosecutor, which can be reproduced
for advantage:
Para 76: “It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or highups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of crossexamination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other all urence or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such
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instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune form decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time”.
Para 77: “Thus, in criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbled, court should tread upon, it, but if the same are boulders, court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and society is so much more. Now the maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is, in practice, changing world over and courts have been
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compelled to accept that “society suffers by wrong convictions and it equally suffers by wrong acquittals”. I find this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh and Anr. v. MANU/SC/0093/1978 : state (Delhi Administration) 1978CriLJ766, Krishna Iyer, J. laid down that “proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes”. In the case of State of U.P. v. MANU/SC/0503/1988 : Anil Singh 1989CriLJ88, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. In the case of State of West Bengal v. MANU/SC/0321/1994 : Orilal Jaiswal and Anr. 1994CriLJ2104, it was held that justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Singh and Anr. v. MANU/SC/0035/1999 : State of M.P. 1999CriLJ1334, it was held that the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective Iayer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case
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the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused”.
275. Lastly, again on the point of confession, prosecution has
relied upon the ruling in the case of (4) (2007) 4 Supreme Court
Cases 257 in the case of Abdulvahab Abdulmajid Shaikh and others
vs. State of Gujarat with Cr. Appeal No. 129 of 2005 in the case of
State of Gujarat vs. Abdulvahab Abdulmajid Shaikh and others and
with Cr. Appeal No. 130/2005 in the case of State of Gujarat vs.
Yasin Ganibhai Haveliwala and others. In this authority, it is held by
Hon'ble Supreme Court as to how to determine the voluntary nature of
a confessional statement which is retracted at a later stage. It is held
that merely because the confession was retracted later, that does not
mean that the confession is not voluntary in nature. Whether the
accused was willing to give confession voluntarily or not is to be
determined from his mental state at the time when he gave the
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confession. In the given case, the DCPs took all the precautions to see
that the confessions are voluntary and complied with all the formalities
which have been incorporated in the confessional statement, which is
corroborated by other record and documents and, therefore, ratio is
applicable to the present set of facts.
276. To summaries, after considering the confessional statements,
the prosecution has established the following facts, independent of
other evidence in the form of CDR and witnesses:
(a)A1 Arun Gulab Gawali also known as 'Daddy' is the head of the
Organised Crime Syndicate operating from Gitai Building, Dagali
Chawl Compound, Byculla, Mumbai.
(b)He is also at helm of the Political Wing of the Organized Crime
syndicate namely Akhil Bhartiya Sena.
(c)The members of the Organized Crime syndicate would bring
information about the builders, cable operators and other
businessman in the respective areas who would be called under
threats to Dagadi Chawl in the ground floor room belonging to
A20 Sunil Ghate and under the threat of dire consequences huge
amount was extorted from such builder, businessman regularly.
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(d)Any member of the Organized Crime syndicate who would not
account for the extorted money would be dealt seriously by A1
Arun Gawali by bringing him to Dagali Chawl.
(e)A20 Sunil Ghate would lead the Organization in the absence of
A1 Arun Gawali.
(f)A15 Suresh Patil and PW 25 Vishwnath Hinge would keep the
record of the account in small diaries.
(g)A9 Sandip Gangan was regularly working with the Organization
headed by A1 Arun Gawali, knowing and having reasons to
believe that A1 Arun Gawali is involved in commission of
284. The second chart depicts the tower locations indicating
presence of A12 Pratap when he had been to Dagdi chawl, Byculla to
give contract killing i.e. 'supari' along with A6 Bhintade, A7 Surve and
A13 Rane, which corroborates the confessional statements of A9
Sandip Exh. 324 when he had stated that in the midst of December
2006, the members of Akhil Bhartiya Sena viz. A12 Pratap and A13
Rane along with two aged persons i.e. A6 Bhintade and A7 Surve had
been to Dagdi chawl with a brown coloured bag containing Rs.30 lakhs
as a contract money to kill Kamlakar Jamsandekar. It further finds full
corroboration to the confessional statement of A15 Patil Exh. 241
which I have already disucssed. A15 Patil as per the directions of A1
Arun Gawali, kept the bag containing Rs.30 lakhs in the cupboard. As
such, from this chart, it can be seen the presence of A12 Pratap in the
area of Byculla near Sant Savta Marg, opposite Gloria Church. He made
not only one or two calls, but six calls from the said spot of which two
calls were on the mobile of A13 Rane at 13:57:04: and second at
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14:16:27.
285. The third chart depicts 12 calls on 8th January, 2007 by A12
Pratap to A13 Rane, A10 Shrikrishna and viceversa. First three calls
are from Byculla area and the call numbers 4 and 5 were from Saat
Rasta area when A12 Pratap called A10 Shrikrishna alias Babu. These
calls also corroborates the presence of A12 Pratap at Byculla Dagdi
Chawl from the confessional statements of A9 Sandip and A15 Patil
when an amount of Rs.60,000/ was paid to A12 Pratap by A9 Sandip.
286. The fourth chart depicts tower locations indicating presence
of A3 Ashokkumar in the vicinity of Asalfa village and communication
with other accused persons involved in the murder of Kamlakar
Jamsandekar. The said chart is self explanatory which need no further
clarification about dates which commenced from 15th February 2007 to
1st March 2007, comprising 50 calls.
287. The next chart indicates calls and tower locations of A3
Ashokkumar and A2 Pratap as well as the other accused involved in the
conspiracy on the day of murder of Kamlakar Jamsandekar, which is
most important. This chart indicates that there were as many as 16
calls on 2nd March 2007 between these accused. Call at Sr. Nos. 11 and
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14 are significant in the sense that the first call at 16:48:17, from
mobile No. 9224676768 was made from the mobile of A3 Ashokkumar
to A12 Pratap i.e. No. 9223202133 for about 74 seconds. The tower
locations of the shooters i.e. A2 Vijay Giri, A3 Ashokkumar and A4
Narendra indicates that they were on Tilak Road, Ghatkopar East. It
has come in the confession that after the incident, they ran away from
the spot from Narayan Galli, Ghatkopar which clearly suggests that
incoming call of A12 Pratap was made from that area when A12
Pratap was at Shanti Park, Mira Road East, when he received the same.
It is the matter of record that Kamlakar was murdered at about 16.45
hours and within three minutes, the first call was made by A2 Vijay to
A12 Pratap. Immediately thereafter, at 16:50:08, A12 Pratap
intimated about it to A13 Rane and at 17:06:08 also talked to A5 Anil.
Immediately at 17:14:49, A12 Pratap called A3 Ashokkumar who by
that time reached Navapada Lane, Kurla West. Thereafter, A12 Pratap
called A10 Shrikrishna at 18:12:58 and then A10 Shrikrishna called
A12 Pratap at 22:52:20. What else is required to establish the well
connected accused after they succeeded in the conspiracy which they
had hatched to eliminate Kamlakar Jamsandekar?
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288. The next chart indicates the calls and tower locations during
the relevant period after the murder i.e. 3rd March 2007 between A3
Ashokkumar and A5 Anil from Vikhroli to Borivali East. At that
relevant time, the money was collected by A2 Vijay from A10
Shrikrishna. A3 Ashokkumar and A5 Anil were with A2 Vijay at the
Borivali National Park where they received the amount.
Tower Locations showing presence of A3 Ashok Jaiswar in the vicinity of Aslafa village and communication with other accused persons involved in conspiracy prior to murder of Kamalakar
Jamsandekar
NOTE
(1) 'A' stands for EXHBIT No. 426 Colly (2) 'B' stands for EXHBIT No. 427 Colly. (3)Calls in Bold and Italic having corresponding entries in CDRs
of both the accused.
Date Time Call Duratio
n
Calling No Calling No Cell
ID address
Called No Called No Cell ID address
Page No
1 2 3 4 5 6 7 8
15/02/2007 225419 157 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump)
9323709336 (Anil Giri)
- A-47
17/02/2007 091107 65 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar
A-13
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 312
RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
17/02/2007 184508 53 9224676768 (Ashok Jaiswar)
19825 (GOREGAON - P.L.Lokhande marg, Buddha nagar, Govandi)
9323709336 (Anil Giri)
- A-47
17/02/2007 190342 35 9224676768 (Ashok Jaiswar)
19825 ( GOREGAON -P.L.Lokhande marg, Buddha nagar, Govandi)
9323709336 (Anil Giri)
- A-47
17/02/2007 224744 23 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
898 (Plot No. 52, Jai Hind Society, Vile Parle West, Mumbai 400 057)
A-13
18/02/2007 091906 36 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
A-13
18/02/2007 112154 14 9224676768 (Ashok Jaiswar)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- A-47
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 313
18/02/2007 192931 18 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
A-13
19/02/2007 081221 95 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump)
A-13
19/02/2007 091353 51 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village, Mumbai-84)
A-13
19/02/2007 091816 11 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
A-13
19/02/2007 100739 52 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mu
A-13
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 314
mbai-84)
19/02/2007 101301 62 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
A-13
19/02/2007 102607 40 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
9323709336 (Anil Giri)
- A-47
19/02/2007 104000 34 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
9323709336 (Anil Giri)
- A-47
19/02/2007 114334 27 9224676768 (Ashok Jaiswar)
19443 (Junction of Andheri Ghatkopar RD and Jangalesh
9323709336 (Anil Giri)
- A-47
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 315
war Mahadeo Mandir RD,Asalpha village,Mumbai-84)
19/02/2007 122156 23 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
20354 (Bhandup,Near Mangatram Petrol Pump)
A-13
19/02/2007 130255 23 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump.) (Bhandup,Near Mangatram Petrol Pump)
9323709336 (Anil Giri)
- A-47
19/02/2007 130719 27 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump.) (Bhandup,Near Mangatram Petrol Pump)
9323709336 (Anil Giri)
- A-47
20/02/2007 102710 28 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
A-13
20/02/2007 110150 22 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri
A-13
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 316
Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
20/02/2007 202033 1 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
21746 (Goregaon H/w)
A-5
20/02/2007 202104 14 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
21746 (Goregaon H/w)
A-5
22/02/2007 140527 112 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
7586 (S.N.Dubey road, Rawalpada, Dahisar(east))
A-5
22/02/2007 212344 7 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
21697 (KEDARAM ROAD MALAD E)
A-5
23/02/2007 215437 96 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- B-41
23/02/2007 220453 81 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- B-41
23/02/2007 220845 65 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandival
9819251750 (Babu Gurav)
- B-41
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 317
i, Andheri east)
23/02/2007 225345 156 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- B-41
23/02/2007 234219 33 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9819251750 (Babu Gurav)
- B-41
24/02/2007 202050 52 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump)
A-15
24/02/2007 203402 21 9223202133 (Pratap Godase)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- B-43
24/02/2007 211407 14 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
A-15
25/02/2007 113529 33 9323709336 (Anil Giri)
- 9223202133 (Pratap Godase)
4930 (Junction of M V Road and Baji Pisalkar Marg,Sakinaka Junction,Sakinaka,And
B-127
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 318
heri -East,Mumbai-59)
25/02/2007 114000 49 9223202133 (Pratap Godase)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
9819251750 (Babu Gurav)
- B-43
25/02/2007 114118 134 9223202133 (Pratap Godase)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
12 31618 Model Residency,Satrasta,Byculla,Mumbai 400 011.
13 31619 Model Residency, Satrasta, Byculla, Mumbai 400 011.
14 28402 Not available because cell Id is from out of Mumbai.
The witness testified that he had obtained the data of the cell ID from
Mumbai only. However, data of Cell ID No. 28402 is out of Mumbai
and, therefore, address is not available with P.W. 35 Palande. According
to him, range of each tower surrounds five kilometers approximately. If
any tower is busy, then another tower can catch the frequency.
297. During crossexamination, the learned counsel Mr. Pasbola
failed to shake his testimony or make any dent. Obviously, it being an
unimpeachable documentary evidence in the form of electronic record
about the call details, there is hardly any scope to show that these are
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 334
all fabricated documents. Section 65(B)(1) of the Evidence Act reads
thus:
“Admissibility of electronic records.(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible”.
All the conditions required in the said section are complied with and,
therefore, it is an admissible evidence without further proof or
production of the original as evidence of any contents of the original or
of any fact stated therein of which direct evidence would be admissible.
There is reason for this witness to fabricate the false documents to help
the prosecution as he is an independent witness who has no grudge or
axe to grind against the accused. Most of the questions are in the form
of seeking clarification about the abbreviations and other technical
aspects which the witness has aptly answered.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 335
298. P.W. 30 Charles Daniels Exh. 329 is working as a Nodal
Officer with Vodafone since 2006. He testified that the name and
address of the other details of the subscribers are stored as per the
documents submitted. CDR are also stored in the data. As a nodal
officer, he has to interact with law enforcement agencies and supply
them necessary information as asked for, which is stored in their system.
299. In view of the requisition from ACP, D1, South dated
3.1.2009 (Exh. 330), calling for certain details of five Sim numbers, the
details were submitted, with a forwarding letter Exh. 331. The data
was retrieved which is in the form of electronic record and furnished to
the police. The witness has produced the original record i.e. subscribers
form. The application forms were with respect to Mobile No.
9920698927 for the period 7.5.2007 to 4.9.2007. The documents to
that effect are proved at Exh. 406. Second application was with respect
to Mobile No. 9919251756 wherein the name of the applicant is
Shrikrishna A10, for the period from 22.7.2005 to 25.10.2006. A
driving licence in support of the same was produced. The documents
are proved at Exh. 408. The application form clearly depicts
photograph of A10 with his name. P.W. 30 Daniels testified that again
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 336
the same number was allotted to A10, however, card was changed from
prepaid to postpaid. The entire documentary evidence to that effect is
proved at Exh. 409 which comprises seven papers. It also comprises
driving licence of A10 Shrikrishna.
300. The witness has been crossexamined on similar lines to that
of earlier witness by Mr. Pasbola who failed to make any dent in his
evidence which is unimpeachable and cogent and inspires full
confidence from the documents on record. On the contrary, it has been
reiterated that the applications are preserved in the warehouse and that
the department has provided this witness with all the documents. The
subscriber's details are maintained and operated by the customer service
department. The witness clarifies that on the basis of a password, he
can access the information stored by the customer service department.
On that basis, he can get name, address and activation date of the
applicant.
301. By reexamining, the SPP clarified that there is no seal on
Exh. 409 because it is an application for postpaid Sim card which has
been sold by the direct sales agent which bears a code of a particular
sales agency.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 337
302. It can be seen from the evidence of the aforesaid witnesses
visavis the documentary evidence produced by them that mobile no.
9223202133 is in the name of A12 Pratap Godse. The original
customer application form and documents of proof i.e. passport copy of
A12 Pratap bearing his photograph is proved at Exh. 432.
303. Mobile No. 9224770420 stands in the name of P.W. 8
Narendra Panchal, who is real brother of A8 Surendra Panchal. The
original customer application form along with Pan card and ration card
Exh. 433 proves that this phone belongs to P.W. 8 Narendra Panchal. It
was used by A8 Surendra. As it has come in the confession of A10
Shrikrishna Exh. 251 about the use of said number by A8 Surendra
and he used to contact A12 Pratap. Mobile No. 9224676768 stands in
the name of A3 Ashokkumar Jaiswar. The original customer's
application with the documentary proof i.e. ration card is proved at
Exh. 434.
304. Mobile No. 9819251750 stands in the name of A10
Shrikrishna @ Babu Gurav. The original customer's application form
along with documents of proof in the form of driving licence of an auto
rikshaw bearing his photograph and the ration card are proved at Exhs.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 338
408 and 409. From the confessions of A10 Shrikrishna and A5 Anil
Giri, it transpires that following mobile numbers were being used by the
following accused:
A5 Anil Giri : 9323709336
A13 Ajit Rane : 9869148966
The witness P.W. 30 Daniels, P.W.34 Gawde and P.W. 35 Palande have
categorically explained the different columns of the call detail record,
such as calling party, duration, calling number, call number, cell site ID,
ESN number etc.
305. If the call detail record (CDRs) are analysed, it furnishes
unimpeachable evidence about the connection of the accused inter se at
the relevant time as well as the tower locations from which the mobile
calls were transmitted or received.
306. It is the case of the prosecution that from last week of July
2006 to August 2006, A12 Pratap was residing in Chandivali, Powai
area in Mumbai, was contacting A8 Surendra who was in Rajapur, in
connection with the procurement of the country made handgun. The
location of mobile number of A8 Surendra can be seen to be at Rajapur
as majority of the calls received by him from landline number, the STD
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 339
code number of Rajapur which is 02353 depicted in Exh.427 (colly). at
page nos. 157 to 185.
307. In view of confession of A10 Shrikrishna Exh. 251, A11
Narkar Exh. 264 and 268 as well as from the evidence of P.W. 11
Ramchandra, the handgun was ready in the month of August 2006 and
A10 Shrikrishna and A11 Narkar had been to the said village to fetch
the weapon a day before “Gokulashtami” i.e. Janmashtami. The CDR
indicates that on 27.7.2006, A12 Pratap contacted on mobile phone of
A8 Surendra. On 7.8.2006, A8 Surendra had called A12 Pratap who
was in Mumbai and till procurement of the handgun, Art. 5, there were
couple of calls between two of them and the last call being dated 15th
August 2006 at 16.13 hours, on which day, the weapon was delivered
by A8 Surendra to A10 Shrikrishna and A11 Narkar. It happened to
be the previous day of 'Gokulashtami'. This fact exactly matched with
the contents of the confession and interestingly there were no calls
between these two accused thereafter (Depicted in Judgment at Pg. nos.
143 to 145).
308. The prosecution case is that A12 Pratap and A13 Rane had
gone with A6 Bhintade and A7 Surve to Dagdi chawl, Byculla to give
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 340
'supari' for eliminating Kamlakar Jamsandekar to A1 Arun Gawali
somewhere in midst of December 2006. The tower location of mobile
phone number of A12 Pratap dated 15.12.2006 in the afternoon can be
seen in the locality of Byculla i.e. Dagdi chawl (Depicted in Judgment at
Pg. nos. 303 to 305).
309. In the first week of January 2007, in the afternoon, A12
Pratap had again been to Dagdi chawl, Byculla when A15 Patil paid
him Rs.60,000/ through A9 Sandip as per the instructions of A1 Arun
Gawali. The tower location of mobile of A12 Pratap dated 8.1.2007 in
the afternoon is depicted in the locality of Byculla (Depicted in
Judgment at Pg.nos. 305 to 308).
310. It is the case of the prosecution that A12 Pratap and A13
Rane with the help of A10 Shrikrishna communicated with A2 Vijay,
A3 Ashokkumar, A4 Narendra and A5 Anil for eliminating Kamlakar
Jamsandekar and for about 15 days prior to the murder, A2 Vijay, A3
Ashokkumar, A4 Narendra and A5 Anil were keeping watch at
Kamlakar Jamsandekar, who was residing at Asalfa village.
The CDR and tower location of mobile number of A12
Pratap and A13 Rane shows that A3 Ashokkumar was in the locality of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 341
Asalfa village and Chandivali while A12 Pratap was in the locality of
Chandivali and they were in contact with each other as well as with
A13 Rane, A10 Shrikrishna and A5 Anil from 15.2.2007 to 2.3.2007.
Thereafter, the mobile phone of A3 Ashokkumar does not show this
location at all. (Depicted in Judgment at Pgs. 311 to 324).
311. It is the case of prosecution that Kamlakar Jamsandekar was
assassinated on 2.3.2007 at 16.45 hours. After committing the murder,
the shooters A2 Vijay, A3 Ashokkumar and A4 Narendra escaped from
the spot and contacted A12 Pratap from Narayan Galli, Ghatkopar. The
said contact was made by A2 Vijay from the mobile phone of A3
Ashokkumar.
The CDR and tower location shows that A12 Pratap
received an incoming call from the mobile number of A3 Ashokkumar
exactly at 16.48 hours through the tower location at Tilak Nagar,
Ghatkopar (Depicted in Judgment at Pg. no.323).
312. The learned counsel Mr. Pasbola argued at the bar that the
two calls on 2nd March 2007 between A3 Ashokkumar and A12 Pratap
do not match. The argument does not stand to reason for, one call is
not a corresponding call of the other. The call at 16.48 hours had been
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 342
made from the mobile of A3 Ashokkumar (Depicted in Judgment at Pg.
no. 324) whereas call which is made at 17.14 hours was received by
A12 Pratap (Depicted in Judgment at Pg. no. 324) and the
corresponding entries are reflected in incoming and outgoing calls of
A12 Pratap. The chart speaks for itself.
313. It is alleged by the prosecution that after the murder of
Kamlakar Jamsandekar, A10 Shrikrishna paid some contract amount to
A2 Vijay at Borivali. A2 Vijay had, in turn called A3 Ashokkumar and
A5 Anil at Borivali National Park, Borivali East for collecting the money.
Accordingly, both of them went to National Park, Borivali to receive the
money.
The CDR and the tower locations of A3 Ashokkumar shows
that he was continuously in contact with A5 Anil from 18.47 hours to
23.14 hours and the last call location was at the Borivali East (Depicted
in Judgment at Pg. nos. 324 & 325). Significantly there are no calls at
all on both these numbers, however, on 11.3.2007, at about 12.09
hours, the date on which A12 Pratap and A13 Rane came to be
arrested by Sakinaka police station in case of Kamlakar Jamsandekar's
murder, there was a direct contact. (Depicted in Judgment at Pg. nos.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 343
326 & 327).
314. Thus, the aforesaid evidence completely substantiates the
prosecution case regarding the contents of confessional statement visa
vis the connection and association of the accused persons through
mobiles with actual knowledge of being engaged in assisting and
conspiring with each other and with the members of the organized
crime syndicate.
315. The prosecution has succeeded in unearthing the
perpetrators of crime as well as the role of kingpin of the organized
crime syndicate, A1 Arun Gawali.
316. The prosecution has examined P.W. 9 Amrut Patil Exh. 182
on the point of recovery of diaries containing the accounts/details of the
organized crime syndicate of A1 Arun Gawali u/s. 27 of the Evidence
Act, at the instance of A15 Patil from the house of P.W. 10 Ankush
Gharkar. P.W. 9 Amrut was called by the Crime Branch in the month of
June 2008 in its office. He consented to act as a panch witness. A15
Patil was present at the Office of Crime Branch. A15 Patil made a
statement in his presence that a bag containing documents/books of
accounts of Gavali's gang had been kept by him with his friend.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 344
Accordingly, statement of A15 Patil was recorded, which was signed by
him and P.W. 9 Amrut as well as by another panch. The contents were
narrated by A15 Patil. The said memorandum is proved at Exh. 183.
The evidence of P.W. 9 Amrut further reveals that thereafter, the police
party started going towards the direction being given by A15 Patil in a
police vehicle. First they went to Byculla and then to Saat Rasta. They
entered a big gate. A15 Patil took them on the first floor. A person
came out of the said room to whom A15 Patil asked to hand him over
the bag which had given to him. He was P.W. 10 Ankush Gharkar. P.W.
10 Ankush gave a bag to A15 Patil which contained some documents
pertaining to the accounts which A15 Patil used to maintain. There
were 1012 diaries and some loose sheets of paper containing account.
There were two cell phones. The police officer marked the diaries with
Sr. nos. 1 onwards. The pages were counted in each diary. P.W. 9 Amrut
and copanch signed each of the diaries. The loose sheets also
numbered which were signed by the panchas. The police officer
examined the cell phones. The bag was of blakishash colour. The cell
phones were of Nokia company. After preparing the panchanama, it
was signed by both the panchas as well as by P.W. 10 Ankush. The
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 345
witness has duly identified all the articles shown to him. The seizure
panchanama is thus proved at Exh. 183A. P.W. 9 Amrut has also
identified A15 Patil in the court. The three sealed packets which were
shown to the witness bears his signature. The cell phones are marked
at Art. 2 (colly.) and the wrappers at Art. “A”. There were 11 small
diaries, one register, an account book, nine documents in the nature of
affidavits, sale deed, agreement of development rights etc. There was
also a telephone diary. All these documents and diaries are collectively
marked at Art. 3. The witness has identified his signatures on each of
the diaries as well as the signature of copanch. The bag is marked at
Art. 4. The witness has also testified that A15 Patil took the police
party along with him to Gitai Building, Room no. 11. He is an
independent witness who had testified the manner in which he acted as
a panch witness on the point of the discovery of the aforesaid articles at
the behest of A15 Patil.
317. His cross reveals that he is a tailor by profession since last
14 years. He had no other source of income and had not acted as panch
in any of the police cases. Interestingly, it has been substantiated in the
cross that at Gitai building, he had put about 5060 signatures which
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 346
confirmed that he indeed visited Gitai building along with the police as
per the directions of A15 Patil. Not only that, it has further been
fortified that he put all the signatures in one stroke after writing of the
panchanama was completed. The panchanama was read over to him.
The cross further indicates that as per his say only, two articles were
placed under seal in his presence, which were cell phones. He was at
Gitai building for about two and half hours. He does not remember
whether the bag was locked when it was delivered by P.W. 10 Ankush
which confirmed that the bag was delivered by P.W. 10 Ankush. The
cross further reveals that 89 persons proceeded towards Gitai building
and that during the period of two and half hour, no other person
entered the room nor anyone left the said room ruling out any
possibility of planting any of such articles in the said room by the police.
The cross further reveals that when they left the Crime Branch office,
they did not know that they were heading towards Gitai building. It also
confirms the fact that the police party was led by none other than A15
Patil as it was exclusively within his knowledge as to where he had
concealed the articles. Not only that, it is brought out from his mouth
that A15 did not give in his statement the name of his friend with
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 347
whom he had kept the bag nor he gave the address of the room. On the
day of the panchanama, P.W. 9 Amrut did not have any personal work at
the Crime Branch or at N.M. Joshi Marg police station. A constable
namely Adam enquired with this witness whether he would assist the
police by acting as a panch witness. He further deposed that police
officer Shelke prepared the statement made by the accused no.15 Patil.
The writing of the statement commenced simultaneously with the
statement made by A15 Patil. His entire statement was recorded.
Thus, from the evidence of this witness, it is crystal clear that the I.O.
has perfectly followed the procedure enunciated in Section 27 of the
Evidence Act while discovering the fact deposed to by A15 Patil i.e.
diaries, mobile phones, account books etc. at the behest of A15 Patil
from the house of A10 Ankush Gharkar. There is absolutely no reason
to disbelieve the convincing evidence of P.W. 9 Amrut which inspires full
confidence.
318. P.W. 10 Ankush Gharkar, however, turned hostile. He admits
that he is residing at Gitai Cooperative Housing Society i.e. Dagdi
chawl in Room No. 11 on the first floor since last eight years and
serving as a security guard for over 18 years. One can see as to how the
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witness has lied on somany material aspects. Though he has been
working as a security guard at the Dagdi chawl, he says that he does not
know anybody residing in his neighbourhood. Though he knew A1
Arun Gawali, ExM.L.A., but says that his relations are neither friendly
nor like neighbours. However, he meets A1 Arun Gawali whenever he
has some personal work i.e. admission in school for his children etc.
During elections, he says that he used to canvass for A1 Arun Gawali,
but never assisted him in his domestic work. He even refused to
identify A15 Patil, but identifies A20 Sunil Ghate. According to this
witness, A20 Sunil Ghate is an excorporator who is unemployed. He
had never worked for A20 Ghate. He does not know as to who is
looking after the Arun Gawali's work whenever he remains in jail.
According to P.W.10, Ankush after the arrest of A1 Arun Gawali, he was
enquired with by the police officer along with other inhabitants of the
building. The police officer asked him to sign a bunch of papers.
319. After declaring him hostile, the learned SPP crossexamined
the witness at length. However, the witness has denied all the
suggestions given by SPP Mr. Thakare. He states that he did not make
any statement before the police. He did not state before the police that
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A1 Arun Gawali used to assist him financially, in case of need and that
A15 Patil used to look after the financial affairs of A1 Arun Gawali
gang. The witness is confronted with portion marked “A” in his
statement which he denied to have made before the police. He was
unable to give any reason as to why it was so recorded. Accordingly, his
attention was drawn to portion marked “B”, which refers to A15 Patil
who, in the month of April 2008, approached this witness and asked
him to conceal the said bag and, therefore, this witness concealed the
said bag in a sofa in his house. Rest of the crossexamination relates to
the discovery of the diaries and articles made at the instance of A15
Patil in the presence of A9 Sandip, which has been denied by P.W. 10
Ankush. However, he admits his signature over the panchanama Exh.
183A. According to him, when he refused to sign the panchanama
without reading over to him, the police officer threatened him, and,
therefore, he signed the same. However, in the next breath, he admits
that his signature over Exh. 183A is his normal signature. If he was
threatened and forced to sign, the signature could not have been
normal. Be that as it may. It would be difficult to place full reliance on
this witness, however, in view of the evidence of P.W. 9 Amrut, it can be
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safely inferred that the aforesaid articles have been duly discovered by
A15 Patil from the house of P.W. 10 Ankush. Obviously, during his cross
by Mr. Pasbola, he supported the defence by stating that after obtaining
his signature on a written paper, the police gave him threats not to
make it public. For that reason, he did not disclose the said fact to
anybody. From the further crossexamination, it is apparent that though
he is a resident of Dagdi chawl for last 18 years, working as a security
guard, campaigning for A1 Arun Gawali in his election, he would
definitely deny the fact that A15 Patil had deposited the articles in his
house.
320. Even if the prosecution has proved the discovery u/s. 27 of
the Evidence Act, it is pertinent to note that merely because there are
certain names written in the diary and certain figures mentioned
therein, it is apparent from its perusal that it could not be said that the
persons named in those diaries had in fact were paying some amount to
A1 Arun Gawali or he was extorting the amount. The prosecution has
not proved that the handwriting in the said diary was of A15 Patil or
other accused or any other member of the organized crime syndicate of
A1 Arun Gawali. In the absence of proof of handwriting, as no
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handwriting expert has been examined, it would be difficult to place
complete reliance on the contents thereof as well as on the two mobile
handsets alleged to have been used by the members of the organized
crime syndicate. The evidence in the form of these articles is
insufficient to establish any link with A15 Patil in preparing these
documents. It is argued by Mr. Pasbola that the Hon'ble Supreme Court
has held that diaries are very weak piece of evidence and unless it is
cogently established as to the identity of the persons mentioned in the
diary, the same are insufficient and unreliable.
321. Even P.W. 25 Vishwanath Sawalaram Hinge who also is a
resident of Dagdi chawl, Room No. 4 and like P.W. 10 Ankush, he also
used to campaign for the election of A1 Arun Gawali has turned hostile
and denied the handwriting in the 12 diaries Article 3 (colly.), shown to
him by the prosecution. During the course of his evidence, he
volunteered that after the arrest of Dady which is the nick name of A1
Arun Gawali, he was continuously thrashed for three months by the
police, at the police station. He was taken to he Magistrate's Court for
recording his statement u/s. 164. He testified that the police
threatened him to give the statement before the Magistrate. He,
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therefore, gave a statement before the Magistrate as per the dictate of
the police officer. He testified that the court did not administer oath
before recording his statement. After declaring him hostile, the learned
SPP Mr. Thakare tried to impeach credit of the witness in his cross
examination. The witness identifies his statement marked as Exh. 308,
which was recorded by the Metropolitan Magistrate on 21.7.2008. He
further admits that he was again produced before the Magistrate on
22.7.2008 and answered the questions put to him by the said
Magistrate. The Magistrate had asked him whether he had any fear or
pressure upon which he answered that he had no grievance of any kind.
However, P.W. 25 volunteered that since the police officers were present
just outside and that they had told him that they would definitely come
to know about his statement and, therefore, he did not make any
complaint to the Magistrate. This appears to be probable in the given
circumstances. Though he admits that the statement was recorded on
the typewriter by the Magistrate as per his say, it cannot be lost sight of
the fact from the evidence that he was in the gaze of the police. He
admits that he did not make any complaint against the police since
22.7.2008. When he was confronted with paragraphs marked “A” to “D”
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in his statement dated 12.7.2007, he denied to have stated before the
police about A15 maintaining accounts of A1 Arun Gawali's income
and assisting him in writing his diaries containing the accounts. He
denied that the handwriting in the diaries Art. 3 are of A15 Patil and
himself. He denied that A1 Arun Gawali is a dreaded gangster and that
people have a fear about him and that he also has a fear and, therefore,
he could not give evidence against him. He denied that the entires in
the diary Art. 3 pertain to the entries/accounts of illgotten money
which are in his handwriting and in the handwriting of A15 Patil. It
can be safely said that this witness, like P.W. 10 Ankush, would support
the cause of A1 Arun Gawali being his henchman, yet, in the absence of
proof of the handwriting and the proof of authenticity of the contents of
the diary and entries, it would be difficult to place complete reliance on
it. The evidence of the prosecution on that point is insufficient and,
therefore, it cannot be accepted that the diaries and account books Art.
3 are the accounts of the illgotten money of the organized crime
syndicate of A1 Arun Gawali.
322. P.W. 28 Mahesh Nanji Shah Exh. 318 is a witness examined
by the prosecution who is said to be a owner of “Hetal Photo Studio”
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who used to pay extortion to the members of the organized crime
syndicate headed by A1 Arun Gawali, operating from Dagdi Chawl,
Byculla. He testified that since last 27 years, he is running the aforesaid
photo studio at Byculla. One Chandrakant Shah is the Secretary of All
India Photographic Trade and Industries Association. This witness has
been purchasing goods/material of his business from him. He has,
therefore, good relations with the said Chandrakant Shah. Chandrakant
Shah runs his business in the name and style as “Angel Photo”. This
witness also knows one Mahendra Shah who is a relative of
Chandrakant Shah since last many years. Mahendra Shah was
sometimes stays in America. This witness has also good relations with
Mahendra Shah.
323. According to this witness, in 2005, Chandrakant had
informed him that Mahendra had been receiving extortion calls in the
name of A1 Arun Gawali. Chandrakant had also informed him that in
Surat, Mahendra Shah had been shot at. Chandrakant had also
informed this witness that due to such calls, Mahendrabhai wanted to
pay Rs.2 lakhs per month to A1 Arun Gawali. It was a case of 2005.
Chandrakant alleged to have told this witness that he would keep Rs. 2
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lakhs at his studio for being paid to A1 Arun Gawali on behalf of
Mahendrabhai because the studio of this witness was in the area of
Byculla and it would be convenient to hand over the money. P.W. 28
Mahesh further deposed that for about three years, a man of
Chandrakant would keep Rs.2 lakhs at his studio every month and a
man of A1 Arun Gawali used to collect the said amount each month.
The payment of money to the man of Arun Gawli used to be made on
4th or 5th day of each month. One person by name of Prabhakar used to
collect money from this witness or sometimes, from his employee. He
also testified that Prabhakar would say that the entry of receipt of the
amount is made in their diary and that they should not worry. When
the witness was summoned by the Crime Branch in the month of July
2008 and enquired with him, he learnt that the amount was being
shown as received from “Hetal”. His testimony has been shattered
during crossexamination by Mr. Pasbola, as rightly so that this witness
can be said to be a got up witness of the prosecution for the following
reasons :
324. It is surprising that even though since last three years, the
extortion money was being paid to a man of Arun Gawali by this
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witness on behalf of the Mahendra, he did not disclose it to anybody.
There is no evidence about the alleged threats received by the socalled
Mahendra who is not examined by the prosecution nor his whereabouts
are brought to fore. Interestingly, P.W. 28 Mahesh admits that the
incident of extortion of money from Mahendra occurred in Surat 15
years ago. This is something quite strange as it is not the contention of
the prosecution that the extortion was made by or on behalf of A1 Arun
Gawali at Surat 15 years ago or that Mahendrabhai was shot at on
behalf of A1 Arun or by his henchmen. The fact that Chandrakant
informed this witness is also an omission. The reference of
Chandrakant in the evidence of this witness is an omission. However, in
the absence of the evidence of either Chandrakant or Mahendra, the
evidence of this witness is of hearsay nature and, therefore,
inadmissible, in the absence of any other corroborative evidence. It is
difficult to believe that a man (Mahendra) who is now staying in
America has been regularly paying a ransom of Rs.2 lakhs through
Chandrakant. The fact that the socalled Prabhakar who used to collect
the ransom from this witness informed him that the amount which was
being received is shown to have been received from “Hetal”, is also an
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omission. The witness too admits that he did not tell the police about
the said fact. The witness is unable to give description of the socalled
Prabhakar. Interestingly, this witness had no direct interaction with
Mahendrabhai but only with Chandrakant, as according to him,
Mahendrabhai and his children have been settled in America. The
witness has denied that he has cooked up a story in the name of
Chandrakant and Mahendrabhai just to save him. As such, the evidence
of this witness is required to be discarded in toto.
325. In order to show the organized crime syndicate of A1 Arun
Gawali, apart from the evidence of other witnesses i.e. P.W. 9 Amrut
Patil, P.W. 10 Ankush Dharkar and P.W. 25 Vishwanath Hinge, the
prosecution has also examined P.W. 6 Arunkumar Indrajit Singh, a cable
network distributor Exh. 169. I have already discussed the evidence of
P.W. 9 Amrut Patil on the point of seizure of diaries at the instance of
A15 Patil from P.W. 10 Ankush. P.W. 10 Ankush turned hostile and so
also P.W. 25 Hinge. However, this witness has supported the
prosecution case. He testified that he operates his business of cable
network in the name of “Ashish Vision Cable”, situated at C.B. Road,
Mazgaon. He is in the said business since 1989. He is in the business of
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distribution of cable network for “Hathway” Company since 1997.
326. According to this witness, in the month of June, 1998, he
received several threatening calls from a person claimed to be one
“Swami” who used to ask this witness to come to Dagdi chawl and meet
'Daddy' alias Arun Gawali. Initially, this witness did not care,but when
the said “Swami” started extending threats to his life that if he did not
go to Dagdi chawl to meet 'Daddy', the consequences will be serious
and, therefore, he was left with no option but to go to Dagdi chawl. He
went to Dagdi chawl in May, 1998 on the ground floor. Within five
minutes, a person came and took him to a room on the ground floor of
the Gitai building. He did not disclose his name. He introduced him to
one Sunil Ghate A20. The said Sunil Ghate A20 made a demand of
Rs.5 lakhs per month as an extortion money as this witness was doing
business in his area. The said Sunil Ghate A20 had also told P.W. 6
Singh that since 'Daddy' had asked him to make such demand, he was
asking for the same. Sunil Ghate A20 also threatened the witness of
dire consequences if the demand is not fulfilled. P.W. 6 Singh expressed
his inability to fulfill the demand, however, after negotiation, it was
reduced to Rs.1.5 lakh per month. He had to agree to pay Rs.1.5 p.m.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 359
to the extortionist. Accordingly, on 20th of each month, P.W. 6 Singh
would pay Rs.1.5 lakh to A20 Sunil Ghate. He had paid the amount
every month till May 2008. One Babu Dighe used to collect the amount
every month from him from the year 2006 to May 2008. Before that,
A20 Sunil Ghate used to collect the amount from P.W. 6 Singh. The
witness further deposed that sometimes, there used to be some delay in
payment, whereupon, A20 Sunil Ghate used to make him threatening
calls. The witness has identified A20 Sunil Ghate in the dock.
327. In cross by Mr. Pasbola, P.W. 6 Singh admits that before
12.7.2008, he did not give any complaint to the police against A20
Sunil or Babu and that for the first time, on 12.7.2008, he disclosed
about the calls and also about the fact that he was making payments
pursuant to the threats. He also admits that police did not call upon
him to give any documentary proof to show that he was paying Rs.1.5
lakh every month. Obviously, it cannot be expected that a person would
keep an account of such illlegitimate transaction. In his deposition, it
has come that the witness had 6000 recorded cable connections and a
staff of 1415 members. At that time, he would charge Rs.100/ per
connection.
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328. Now, again the cross reiterates that the first call of “Swami”
was received in the month of April 1998. The witness did not receive
any such call on his cell phone. He testified that he ignored the calls
received in the month of April and May 1998. During the calls in the
month of April and May 1998, he was asked to visit Dagdi chawl by the
caller who did not give any reason as to why he was called to Dagdi
chawl. “Swami” did not ask this witness to meet a particular person at
Dagdi chawl. The defence has brought out certain omissions with
respect of the statement of P.W. 6 Singh recorded before the Magistrate
which mainly pertains to asking him to meet A1 Arun Gawali at Dagdi
chawl by the said “Swami”. There is also an omission with respect to
the threats to his life given by the caller if he did not visit the Dagdi
chawl. The fact that A20 Sunil Ghate told him that 'Daddy' had asked
him to make such demand is also proved to be an omission and the fact
that whenever there used to be delay in making payment, A20 Sunil
Ghate used to give threats is also proved to be an omission. However,
the evidentiary value of this witness is required to be seen in view of his
statement given to the police u/s. 161 of Cr.P.C. The defence itself had
reiterated in his further crossexamination that P.W. 6 Singh did not
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meet “Swami” after June 1998 nor did he receive any call thereafter.
He further deposed that he had no occasion to visit Dagdi chawl after
his visit in June 1998 which obviously means he did visit the Dagdi
chawl in the month of June 1998. Further crossexamination in
paragraph 7 of P.W. 6 Singh confirms the fact that A20 Sunil Ghate
would visit his office to collect the amount. It was December 2006,
when A20 Sunil Ghate had been to his office. He had never made any
phone call to A20 Sunil Ghate or anybody in the Dagdi chawl, asking
for time tomake payment. The calls made by A20 were received by
him and sometimes by his staff. This portion of evidence substantiates
the fact that an amount of Rs.1.5 lakh was being extorted from him by
the organized crime syndicate through its member A20 Sunil Ghate
continuously from June 1998 till May 2008.
329. Further crossexamination of this witness mostly relates to
the nature of his business, asking the witness to tender documentary
evidence to show about the same and also asking for his income tax
return papers, which he had aptly answered and also tendered
documentary evidence in support of his business. The witness denied a
suggestion that at the Crime Branch, the police officer told him that he
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was going to be arrested on the ground of financially assisting A1 Arun
Gawali's gang, which would mean that there was some exchange of
money which can be safely inferred in regard to extortion by the
organized crime syndicate of A1 Arun Gawali. So far as the omissions
with respect to his previous statement to the police are concerned, they
are of minor nature and, therefore, would not make his testimony
unbelievable. The omissions are only with respect to the witness doing
business in their area and that A1 Arun Gawali is known as “Daddy”.
In paragraph 12 of the crossexamination of P.W. 6 Singh, several
questions were asked about the proprietorship of “Ashish Vision Cable”
by suggesting that one Reshmibai was its owner. According to the
witness, she was operator for “Ashish Vision Cable”. Thereafter, some
questions were asked about payment of entertainment tax to the
government and how to collect revenue etc., which are not relevant in
the matter. The witness had tendered all the documents asked for by
the defence such as the receipt of entertainment tax etc. are in the file,
for the period from 19931998. The documents are proved at Exh. 170
(colly.). It can be safely inferred that this witness is a businessman,
conducting his business faithfully by paying all the dues to the
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government including income tax. The documents are in his file with
respect to his income tax returns for the assessment year 20032004
and 20052008 are proved at Exh. 171 (colly.). Not only that, it is
brought in his crossexamination that the account of “Ashish Vision
Cable” is opened with Development Credit Bank, Hasnabad in 2003.
The registration certificate of “Ashish Vision Cable” for the period 2003
to 2010 is also produced along with other relevant documents at Exh.
172.
330. This witness also does the cable network business on the
N.M. Joshi Marg which is proved at Exh. 173 and the other documents
which are at Exh. 174 (colly.). He categorically admits that he had not
given any cable connection at Dagdi Chawl. His deposition further
reveals that when he had been to the said building, there were
occupants and since name “Gitai Building” found displayed over it, he
realized that it was Gitai building. He did not visit the said building
after June 2008. He had no occasion to interact with A1 Arun Gawali,
obviously, for the reason, when his henchman was extorting the money,
it was needless for the kingpin to directly threaten the witness. It was
asked whether the witness knows one Amar Yadav @ Nate to which the
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witness answered that the said person is his accountant for the last so
many years. Rest of the defence counsel declined to crossexamine the
witness.
331. Thus, having considered the evidence of P.W. 6 Singh visa
vis the confessional statement of A9 Sandip alias Sandy Exh. 324, A10
Shrikrishna Exh. 251 and A15 Patil Exh. 241 and other evidence on
record, the prosecution has established that A1 Arun Gawali with the
aid and assistance of A20 Sunil Ghate as well as A12 Pratap, A13
Rane and A15 Patil was running an organized crime syndicate. The
evidence of P.W. 6 inspires confidence and, therefore, I do not see any
reason to disbelieve the prosecution story as regards the organized
crime syndicate of A1 Arun Gawali.
332. It is pertinent to note that A10 Shrikrishna alias Babu
Gurav had stated in his confessional statement that during the
ceremony of 'Navratri', A12 Pratap and A13 Rane had extorted money
from builders and merchants out of which, some amount was retained
by him and rest of the amount was sent to A1 Arun Gawali through A9
Sandip.
333. Whereas, A9 Sandip in his confessional statement had
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stated that on 10th January 2007, there was an election of the union of
Mumbai Mahanagar Telephone Ltd. In each pocket of Mumbai, the
members of Akhil Bhartiya Sena were contesting the election. At that
time, as per the directions of A1 Arun Gawali, A15 Patil had sent A12
Pratap and A13 Rane to the Trombay Telephone Exchange and asked
them to create ruckus by forcibly making bogus voting during the
election. Accordingly, A12 Pratap and A13 Rane created terror at
Tromaby Telephone Exchange by inducing some of their henchman as
bogus voters. When they were produced before the court on the next
day, A1 Arun Gawali, through A15 Patil managed to take them out on
bail by paying the entire expenses of surety and the fees of advocate.
A15 Patil in his confessional statement has stated that he had been
looking after the financial matters of A1 Arun Gawali from 2001 and
that A1 used to pay him Rs.15,000/ per month plus some additional
amount. He was also known as “Big Bank” in the coterie of A1. These
aspects have been discussed again in order to substantiate the charge
u/s. 3(2), 3(4) of the MCOC Act, 1998.
334. P.W. 16 Sadanand Laxman Rasam Exh. 217 has testified on
the aspect of two previous chargesheets against A1 Arun Gawali in the
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year 2004 (Exh. 218 and 219), which are considered as previous
chargesheets for invocation of offence under Sec. 2(1)(d) of the MCOC
Act.
335. He testified that he was attached to Agripada Police Station
during August 2003 to 2005 as a police inspector. He had investigated
C.R. No. 77/2004. One Shaikh was a complainant in that case. A1
Arun Gawali along with one Hussein Shaikh, Arun Gulabrao Gawali,
Asha Gawali and some others were the accused, against whom, offences
u/s. 465, 467, 471, 420, 380, 506(II) r/w 34 of IPC were registered.
After investigation, a chargesheet was filed in the Court of
Metropolitan Magistrate (46th Court). The certified copy of the said
chargesheet is tendered in evidence and proved at Exh. 218. It is
testified that the case is pending in the Court.
336. He further deposed that on 31.10.2004, PI Uttamrao Jadhav
lodged an FIR bearing No. 189/2004 u/s. 341, 506(II), 323 of IPC
against A1 Arun Gawali, A20 Sunil Ghate and others. PI Jadhav
conducted investigation of the said crime, however, P.W. 16 Rasam has
filed the chargesheet since PI U. Jadhav had retired from service. The
trial is pending in the court. The certified copy of the chargesheet is
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proved at Exh. 219.
337. There is no effective cross of this witness by the defence.
There is only an admission that so far as the chargesheet at Exh. 219 is
concerned, A1 Arun Gawali has been acquitted of all the charges. The
conviction or acquittal of the accused is not the criteria while
interpreting Section 2(1)(d) of MCOC Act which reads thus:
“2(1)(d): “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one chargesheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence”.
Thus, the requirement has been fulfilled as there was an activity which
was prohibited by law. A cognizance of the offence has been taken by
the competent court. The offences are cognizable with imprisonment of
three years or more undertaken by A1 Gawali and his members of
organized crime syndicate and the offences were committed within the
preceding period of ten years.
338. P.W. 33 Divakar Bhaskar Shelke Exh. 414 was attached to
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DCB,CID, Unit III in the year 2007. He testified that on 28.4.2008, Sr.
PI Mr. Sandbhor sent one letter and informed him that he had arrested
four accused in the offence of dacoity (A2 to A4), who have had
committed the offence in C.R. No. 82/2007 of Sakinaka police station.
It was also informed by PI Mr. Sandbhor to this witness that the weapon
used in the said crime was also used in C.R. No. 82/2007 of Sakinaka
Police station. Sr. PI Mr. Sandbhor had also informed this witness that
A10 Shrikrishna alias Babu Gurav who belongs to A1 Arun Gawali's
gang was arrested in C.R. No. 52/2008 of DCB, CID, Unit III. The said
letter is proved at Exh. 415. P.W. 33 Shelke testified that during
interrogation of A10 Shrikrishna, while in police custody, it revealed
that he paid the amount. It seems that the amount was paid by A10
Shrikrishna to four accused i.e. A2 Vijay, A3 Ashokkumar and A4
Narendra, after executing Kamlakar Jamsandekar. PSI Sawant was sent
to fetch A6 Bhintade and A7 Surve who were suspects in the crime
registered at Sakinaka police station. This witness got an order from
Joint C.P. Mr. Deven Bharti that he shall investigate the said crime. This
letter is proved at Exh. 416. Thereafter, P.W. 33 Shelke directed PN Naik
to hand over the papers of C.R. No. 82/2007, which were in the custody
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 369
of Unit III to the Sakinaka Police station and made a station diary entry
for getting those papers from Sakinaka police station. He interrogated
A6 Bhintade and A7 Surve. He registered a crime vide C.R. No.
69/2008 (DCB,CID, Unit III) and arrested A6 Bhintade and A7 Surve.
He also arrested A2 Vijay, A3 Ashokkumar and A4 Narendra from the
custody of CIU Unit. An entry was made in the station diary at Sr. No.
21 on 29.4.2008 which is marked at Exh. 417. The xerox copy of the
said entry is marked at Exh. 417A.
339. P.W. 33 Shelke further testified that he produced A2 Vijay,
A3 Ashokkumar, A4 Narendra, A5 Anil, A6 Bhintade and A7 Surve
before 37th ACMM, Mumbai. He interrogated them during which it
revealed that the weapon used in the crime was prepared by A8
Surendra Panchal. His further investigation revealed as to how he
arrested rest of the accused, recorded statements of the witnesses,
obtained the scarbutt seized by Sakinaka police station by letters Exh.
418 and 419. He arrested A9 Sandip on 15.5.2008, A11 Dinesh
Narkar on 16.5.2008, who were already arrested in C.R. No. 52/2008.
He also obtained the gun and the other muddemal seized by CIU. The
letter to that effect is proved at Exh. 420.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 370
340. According to P.W. 33 Shelke, during investigation, it revealed
that A1 Arun Gawali was also involved in the said crime being a gang
leader. There were four offences registered against A1 Gawali
regarding pecuniary benefit. He, therefore, prepared a proposal to
prosecute A1 Gawali under the provisions of MCOC Act and sent it to
the Joint C.P., Crime, Mumbai through his senior for prior approval.
Accordingly, the prior approval was given by Joint C.P. Mr. Rakesh Maria
which is proved at Exh. 421. He handed over the case to ACP Durafe
P.W. 37. Thereafter, he deposed that on 28th June, 2008, A15 Patil gave
a memorandum statement and discovered certain diaries, mobile
handsets etc. of which I had already made a discussion in preceding
paragraphs. The said panchanama is already marked at Exh. 183.
341. The crossexamination reveals that P.W. 33 Shelke had
received the papers of Sakinaka police station on 23.4.2008 from PI
Daund and pursuant to the receipt of those papers, he was directed to
make further investigation. This is again clear that it was not a re
investigation, but further investigation in the matter after filing the
chargesheet by Sakinaka police station. However, he admits that he
had not informed the court about the further investigation u/s. 173(8)
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 371
of Cr.P.C. I have already made an elaborate discussion on this point in
the preceding paragraphs.
342. The cross reveals that this witness pointed out to his senior
that the investigation was incomplete. He clarified that incomplete
investigation means, in the said case, handgun was not recovered and
seized. Certain questions were asked to this witness as regards the
investigation conducted by him more particularly, while interrogating
the accused persons on 28.4.2008 and 29.4.2008. In paragraph 25, the
witness testified that on 15.5.2008, he came to the conclusion that
MCOC Act is applicable to this case. He arrested A9 Sandip and A11
Narkar after interrogating A10 Shrikrishna. He had discussed with his
senior PI and P.W. 37 ACP Durafe before preparing a proposal under the
MCOC Act. The witness further admits that except A6 Bhintade and
A7 Surve, he did not enquire with anybody about the previous enmity
between the deceased and these two accused. Except these two accused,
he did not enquire about the reason of giving 'supari' to anyone else.
Rest of the crossexamination of this witness is insignificant for, except
bringing the minor errors, nothing has been surfaced in the further
searching cross. The law is well settled that the defence cannot take
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 372
advantage of defective investigation, if the evidence of the prosecution
is otherwise relevant, cogent and reliable. It is not the rule of law that
each and every aspect is to be noted in the station diary or there should
be a written communication. The witness has testified that most of the
directions in regard to the investigation after 20.5.2008, were orally
given to him by ACP Mr. Durafe. For this reason, no flaw can be found
in the investigating process which appears to have been conducted
properly and as per law by this witness.
343. Minor omissions in so far as P.W. 4 Addu and P.W. 11
Ramchandra are proved, however, those are insignificant. The attention
of the witness was drawn to Exhs. 415, 416 and 418. Exh. 415 is the
letter addressed by the Sr. PI of DCB, CID, addressed to the Sr. PI of
Unit III of CIU, indicating the arrest of A2 Vijay, A3 Ashokkumar, A4
Narendra and A5 Anil interalia, seizure of the handgun from them and
their involvement in the instant crime. Exh. 416 is an office order by
ACP Mr. Deven Bharti which depicts that as per the order of Joint C.P.
(Crime), the investigation of C.R. No. 82/2007 of Sakinaka police
station had been handed over to the DCB,CID, directing the Sr. PI of
DCB,CID to collect all the relevant papers of the investigation from the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 373
Sr. PI, Sakinaka police station and to further prepare a plan of
investigation. Exh. 418 is a letter addressed to the Sr. PI, Sakinaka
police station by the Sr. PI, DCB, CID, requesting him to hand over the
scarbutt for forwarding the same to the FSL, Kalina, Mumbai. There is
no endorsement of receipt of these letters by the addressee. That does
not mean that those letters were not received by the addressee in the
normal course of business as these are public documents and unless
contrary is shown, there cannot be any automatic presumption. The
witness has categorically denied the suggestion that Exh. 415 to Exh.
419 are concocted documents and that they have been prepared only to
implicate A1 Arun Gawali with a conspiracy by the police officers.
344. During cross by advocate Mr. Moomen for A9, P.W. 33
Shelke admits that nothing was found on the person of A9 Sandip
when he was arrested. He also admits that he had not taken the search
of house of A9 Sandip. He also admits that when he produced A9
Sandip, he did not express his willingness to make the confessional
statement. He denied the suggestion that A9 Sandip has been falsely
arrested in this case. The remaining counsel adopted the cross
examination of the earlier counsel. Thus, the sum and substance of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 374
evidence of P.W. 33 Shelke is that he has properly conducted the
investigation as per the directions of P.W. 37 ACP Durafe.
345. P.W. 36 Hasan Gafoor Exh. 438 was the Commissioner of
Police, Mumbai, then, who had accorded sanction u/s. 23(2) of MCOC
Act Exh. 439, 440 and 441. According to this witness, he was working
as a Commissioner of Police, Mumbai from February 2008 to June 2009.
He was in the rank of an Additional D.G. One of his functions was to
accord sanction as per the MCOC Act for prosecution. He testified that
he had to accord sanction on the basis of evidence and as per the
provisions of MCOC Act. His evidence reveals that he had an occasion
to accord sanction in C.R. No. 69/2008 in DCB,CID which was a C.R. of
Sakinaka police station bearing C.R. No. 82/2007. He received the
proposal for application of MCOC Act with relevant papers. He had
gone through the papers and had a detailed discussion with the I.O.
about the said crime. He thereafter, arrived at a conclusion that
sanction under the provisions of MCOC Act is necessary. He disclosed
that the offence under MCOC Act had been committed by 19 accused
out of which, four were wanted accused and two were absconding. He
accorded the sanction on 17.7.2008 which is proved by him at Exh.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 375
439. Similarly, by following the same criteria, he accorded sanction in
respect of A20 Sunil Ghade on 20.11.2008, which is proved at Exh.
440 and A21 Ganesh Krishna Salvi on 28.1.2009 which is proved at
Exh. 441.
346. While crossexamining by Mr. Pasbola, P.W. 36 Hasan Gafoor
has admitted that he had considered the same four chargesheets while
according the aforesaid sanction. He testified that he required
approximately one week to accord sanction after receiving the papers,
which means that he did take considerable time for application of mind
before according sanction. According to him, after his subjective
satisfaction, he accorded the sanction. He denied the suggestion that
on the basis of notings which he had put, the sanction was accorded.
Since the witness has been retired on the date of his evidence, he could
not bring the original file which according to him, was available with
his office. In paragraph 7 of his cross, he admits that while according
sanction, which is at Exh. 439, what was available with him was the
reports of the officers and the papers of investigation. What else is
required for the sanctioning authority? This also fortifies the fact that
he did apply his mind. No doubt, his order does not disclose that he
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 376
had a discussion with the IO or any other officer in connection with the
said case, however, it is not the requirement of law. The witness was
aware about the investigation conducted by Sakinaka police station in
C.R. No. 82/2007 and the filing of chargesheet. The reference to that
effect can be noticed in Exh. 439. He further deposed that he had gone
through the prior approval granted by Joint Commissioner of Police Mr.
Rakesh Maria.
347. The attention of the witness was drawn to Exh. 439 which
indicates that except A1 Gawali, there is no reference of other accused
in the four chargesheets, which were referred while according sanction.
The fact that the competent court had taken cognizance of the offence is
apparent from the certified copies of the chargesheets. A question was
asked whether it is correct that three out of four chargesheets do not
disclose cognizance taken by the competent court. The witness
answered that he was satisfied that those cases were filed in the Court.
As a matter of fact, this question should not have been asked to the
witness as he is not competent to answer, for the reason that once
chargesheet is filed in the court of Magistrate and the case is
registered, it means that the Magistrate has taken cognizance of the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 377
offences.
348. The learned counsel for the accused has, therefore, drawn
attention of the witness to Section 2(1)(d) and (e) of MCOC Act.
Though the witness has testified that private and personal disputes are
out of the way of Section 2(1)(d) and (e) of MCOC Act as it is the duty
of the court to interpret the provisions of law and to see whether
provisions of law have been properly made applicable or not. This
question was irrelevant so far as P.W. 36 is concerned. It is the question
of interpretation of law which is to be argued by the lawyers. Of
course, the sanctioning authority being one of the highest police officer
in the rank of the Additional Director General of Police is expected to
know the basic provisions of MCOC Act, yet so far as interpretation and
applicability is concerned, it is the domain of prosecution, defence and
the Court.
349. Rest of the learned counsel adopted the crossexamination
conducted by Mr. Pasbola.
350. Thus, it can be seen that nothing has been elicited in cross
which would render his testimony unacceptable in so far as the sanction
u/s. 23(2) of MCOC Act is concerned.
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352. The last witness of the prosecution is the main investigating
officer P.W. 37 Ashok Tukaram Durafe, Exh. 446, who was posted as
ACP, D1, Mumbai on 22.4.2007. He testified that Unit III of the
DCB,CID had registered C.R. No. 69/2008. On 20.5.2008, Joint C.P.
gave approval to apply MCOC Act in C.R. No. 69/2008. On the same
day, API Shelke P.W. 33 handed over further investigation of the said
crime to him. He consulted with API Shelke P.W. 33 and gone through
the papers. He applied the provisions of MCOC Act. He interrogated
the accused persons who were arrested in this case. His evidence
further reveals as to how earlier it was a case registered at Sakinaka
police station vide C.R. No. 82/2007 u/s. 452, 302 r/w 34 of IPC and 3,
25 of Arms Act and submission of chargesheet by the said police
station. This aspect has already been clarified in the earlier part of the
judgment.
352. P.W. 37 has thereafter, with all details and particulars
testified about the correspondence made by him with Joint C.P. Mr.
Rakesh Maria by which the seven accused had expressed their
willingness to give their confessional statements and accordingly, the
recording of their confessional statements by P.W. 15 DCP Dabhade, P.W.
Raghunath Patil, Clerk and (7) Rajendra M. Sadvilkar, Assistant. These
persons were issued Pass No. 0044 to 0050 to enter into the office of
Legislative Council. What else is required to prove the association of
A15 Patil along with other accused, being the members of organized
crime syndicate of A1 Arun Gawali in the name of his political party
called Akhil Bhartiya Sena.
354. P.W. 37 ACP Mr. Durafe has thereafter testified about the
seizure of 12 diaries at the instance of A15 Patil from Room No. 11
The witness P.W. 10 Ankush Gharkar about which I had already made a
discussion in the preceding paragraphs. The final report in C.R. No.
164/2004 is at Exh. 454 and final report in C.R. No. 159/2005 is
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 382
proved at Exh. 455. These are the two chargesheets. A cognizance
has been taken by the competent court. His evidence further reveals
about the collection of ballistic report in respect of the scarbutt and the
handgun Art. 5. Thereafter, he testified about the correspondence with
the Nodal Officers of mobile phone companies which has already been
discussed by me. He also testified that during investigation, it revealed
that A15 Patil purchased a motorbike bearing No. MH01MA 3482.
Another motorcycle i.e. Bajaj Discover which was used for keeping
watch on deceased Kamlakar Jamsandekar, could not be traced out.
However, its number was fake.
355. During the crossexamination by Mr. Pasbola, the witness
reiterated that he also investigated C.R. No. 52/2008 (MCOC Special
Case No. 5/2008), which is pending in this court in which A1 Arun
Gawali, A10 Shrikrishna, A13 Rane, A11 Narkar are arraigned as
accused. This witness investigated the said crime after getting the prior
approval from the authority. He admits that, in the present case, prior
approval was accorded on 20.5.2008 for which the proposal was sent
one day before. He discussed the matter with IO. After putting his
remarks on the proposal, he had forwarded the same to his superior.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 383
He also admits that during the process, his senior officers i.e. Additional
C.P. and Joint C.P. had a discussion with him. This clearly indicates that
there was an application of mind by the concerned authority.
Thereafter, he also admits that about the previous investigation
conducted and completed by the Sakinaka police station and the
submission and final report as well as committal of the case. He also
admits that he had a discussion with the IO of C.R. No. 82/2007 as
regards the necessity of further investigation into the crime registered at
Sakinaka police station. Though it is viewed with doubt by the defence
that prior approval in C.R. No. 52/2008 was obtained on 29.4.2008 and
on the same day, this witness had received papers of investigation of
C.R. No. 82/2007, I do not feel anything unusual in the same as it can
be said to be just a coincidence. I do not find anything which can be
said to be illegal or against the provisions of the Code of Criminal
Procedure. The endeavour of Mr. Pasbola through out the cross
examination of this witness is to point out the minor technical errors
and mistakes which do not give any fatal blow to the crux of the matter
in the light of the discussion of evidence of prosecution witnesses as
well as the confessional statements of some of the accused. I have
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 384
already stated that there is nothing unusual to doubt the investigation.
356. P.W. 37 ACP Mr. Durafe has been further extensively cross
examined on a very minor and technical aspects about the arrest of each
accused who were referred for recording their confessional statements
to the concerned DCPs. and how and when these accused were
interrogated as well as their first expression indicating willingness to
give confessional statement. The cross also reveals that the defence has
tried to bring on record as to what advice he should have given to the
API Shelke which he did not and what advice he did not give which he
ought to have given. The crossexamination further reveals that P.W. 37
ACP Mr. Durafe did not ask PI Shelke as to why he did not call Saili
Jamsandekar i.e. daughter of the deceased Kamlakar, Neeta Shah and
Mayuresh Tandel for TIP. The reason has already been discussed in the
earlier paragraphs. However, P.W. 37 ACP Durafe has clarified that
because of her examination, Saili Jamsandekar refused to come.
357. The attention of this witness is drawn to Exhs. 470 and 471
which pertains to TIP in respect of A18 Mohd. Saif and A19
Badreaalam who have been discharged, in which Neeta Shah and
Mayuresh Tandel were the identifying witnesses. This aspect has also
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 385
been discussed by me that since the accused have already been
discharged and that the identifying witnesses had not actually seen the
assault nor the weapons in the hands of those accused, there is no
propriety to discuss on that aspect.
358. In paragraph 69, the witness was confronted with the
retracted confession of A9 Sandip which is dated 1.7.2008 and the
witness was asked whether he had filed any reply on it to which he
answered, he was not aware about the said fact. Similarly, his attention
was drawn to the retracted confession of A10 Shrikrishna on 17.6.2008
and by A15 Patil on 26.6.2008. This aspect has already been dealt with
by me and its effect in view of the latest pronouncement of the Hon'ble
Supreme Court in case of Mohd. Farooq Abdul Gafur and anr. vs.
State of Maharashtra reported in 2010 (3) AIR BOM R (S.C.) 551,
which is commonly known as “Milind Vaidya Case”.
359. In paragraph 89, the witness admits that A2 Vijay, A3
Ashokkumar, A4 Narendra and A5 Anil were not acquainted with A6
Bhintade and A7 Surve. It was not necessary that they should know
each other. In case of conspiracy u/s. 120B of IPC, it is not necessary
that all the conspirators and coconspirators should know each other,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 386
especially when in the given case, the link between A2 Vijay, A3
Ashokkumar, A4 Narendra and A5 Anil is established with A10
Shrikrishna, A12 Pratap and A13 Rane and, therefore, this is not
something which can affect the prosecution story.
360. In paragraph 94 of the crossexamination, P.W. 37 ACP Mr.
Durafe was asked by the defence whether he had recorded two
incidents while recording the statement of P.W. 2 Nilkanth Bane which
pertains to the touching of the feet of A6 Bhintade by deceased
Kamlakar and second one when blood pressure was shot up, P.W. 37
answered that he did not record those two incidents. He further
testified that while recording statement of P.W. 2 Nilkanth Bane, he did
not ask him to narrate those two incidents before the court. This
important admissions brought during crossexamination by the defence
are significant since it is not the suggestion of the defence that no such
statement was made by P.W. 2 Bane during his statement u/s. 161 of
Cr.P.C. What has been simply answered by this witness that he did not
ask this witness to narrate those facts before the court. It can be
presumed that P.W. 2 Bane was trying to give all the true facts to P.W. 37
ACP Mr. Durafe, however, this witness appears to have ignored the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 387
material aspects while recording the statement of the witness u/s.
161(3) of Cr.P.C. It appears that P.W. 2 Bane was acquainted with the
aforesaid material facts and circumstances, but P.W. 37 had turned a
nelson's eye. Thus, the aspect of 'motive' in the mind of A6 Bhintade is
apparent.
361. In paragraph 95 of the crossexamination, P.W. 37ACP Mr.
Durafe clearly deposed that he had told the witness to narrate the fact
of unauthorised structures of nephew of A7 Surve, only to avoid
repetition. Therefore, there is no clear mention of the fact of
unauthorised construction in his statement. Thus, it is explicit from this
part of evidence in cross that P.W. 2 Bane indeed had stated before this
witness about the unauthorised structures of the nephew of A7 Surve.
362. There is no reference of the word “Daddy” in the statement
of P.W. 6 Arun Singh, but that would not amount to a material omission
as regards the payment of extortion money to the organized crime
syndicate of A1 Arun Gawali. It is a matter of judicial notice that A1
Arun Gawali is also known as 'Daddy' in the underworld. I have already
discussed the evidence of P.W. 6 Arun Singh. The defence has also
reiterated that the witness was running the business in the name of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 388
“Ashish Vision Cable”. It is of common experience that when a
prosecution witness comes to a Court to depose, normal tendency of the
witness is to exaggerate certain facts which is a normal tendency of any
human being, however, it does not necessarily mean that the witness is
stating something false or is lie. Improvements and minor omissions
are bound to be there, for it cannot be expected of a witness to
reproduce each and every word from his statement before the police. If
a witness reproduces his statement, he can be branded as a tutored
witness. Likewise, what has been deposed by P.W.12 Motilal and other
witnesses is nothing but some exaggeration which does not discredit
their testimony which are otherwise believable, if tested, on the touch
stone of Law of Evidence. The testimony of this witness as well as the
testimony of P.W. 4 Addu and P.W. 7 Manali is found to be consistent
with one another as regards the time, place and manner of occurrence.
363. It is pertinent to note that crossexamination of the
prosecution witnesses by the defence has not been done in conformity
with Section 162 of Cr.P.C. Many a times the witnesses were directly
confronted with their statements recorded by the police u/s. 161 of
Cr.P.C.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 389
364. In paragraph 115 of the crossexamination, the witness was
confronted with a document which pertains to a complaint made by A2
Vijay to the Hon'ble High Court which is treated as Writ Petition No.
2361/2008 and by A4 Narendra dated 24.8.2008, which is filed in S.C.
No. 482/2008. The witness denied the alleged illegal arrest of A2
Vijay, A3 Ashokkumar, A4 Narendra and A5 Anil and their detention
at Kalbadevi Road near Govindram Lachhiram Hotel. The witness
denied the torture and illegal detention as well as extracting forced
confessional statements. Having considered the evidence on record vis
avis their statements u/s. 313, it can, prima facie, be said that the
accused have made false allegations. The witness has also denied that
due to the pressure of his superior, A1 Arun Gawali has been falsely
implicated who was a sitting MLA at the relevant time. Interestingly,
the defence has not adduced any evidence to substantiate the fact as
regards the false implication of A1 Gawali to jeopardize his political
career by the rival group. Even during cross, there is no suggestion
given to the witnesses specifically as to who was behind this entire
exercise to falsely implicate A1 Gawali. The defence therefore, appears
to be improbable, unacceptable and unbelievable. Even A1 Gawali
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could have examined himself, but he did not, which also speaks volume.
365. While crossexamination on behalf of A6, Mr. Kulkarni, the
learned counsel reiterated the fact of arrest of A2 Vijay, A3
Ashokkumar, A4 Narendra and A5 Anil on 26.4.2008 in C.R. No.
66/2008 u/s. 399 by DCB,CID and their rearrest in the present case on
29.4.2008 as well as the TIP on 20.6.2008. As regards the delay in
conducting TIP, I had already discussed that there was no delay. Even
the witness testified that as soon as the witnesses were traced out on
18th June 2008, he proceeded to arrange for the TIP. He also reiterated
that due to her problem informant P.W. 7 Manali, could not come.
366. In paragraph 118, it is specifically suggested to the witness
that he did not enquire about the complaints made by deceased
Kamlakar and P.W. 1 Komal Jamsandekar to the police about the threats
given by A6 Bhintade and A7 Surve. This also suggests that indeed
there were complaints by the deceased and his wife to the police about
the threats at the hands of A6 Bhintade and A7 Surve. Not only that,it
has also been admitted by this witness that he came to know about the
possible motive behind the commission of the murder of Kamlakar
while perusing the statement of Mr. Bailkar.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 391
367. Mr. Moomen, the learned counsel for A9 Sandip cross
examined P.W. 37 ACP Mr. Durafe in which the witness admits that A9
Sandip has not been prosecuted in any other case and is not the owner
of movable or immovable property.
368. As such, from the entire testimony of this witness, certain
important aspects of the prosecution case such as motive, membership
of A15 Patil, recording of confessional statements of seven accused by
following due procedure etc. have been fortified.
369. The argument of the defence that approval u/s. 23(1)(a) of
the MCOC Act as well as the sanction u/s. 23(1)(b) is without
application of mind. I have already discussed as regards the sanction
accorded by P.W. 36 Mr. Hasan Gaffur with due application of mind and
after following the procedure. It is crystal clear from the record as well
as the earlier discussion that between January 2007 and 2.3.2007, the
accused had hatched a criminal conspiracy along with others and have
aided and abetted each other in assassinating Kamlakar Jamsandekar.
The law is well settled that even if there is a lacuna in approval, it can
be filled in by the prosecution at the stage of leading evidence during
trial. This aspect has been substantiated by the Division Bench of the
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Hon'ble Bombay High Court in case of Anil Sadashiv Nanduskar vs.
State of Maharashtra in 2008 (3) MLJ (Crimes), 650. Paragraph 14
of the said judgment can be reproduced, which reads thus:
“14. Reverting to the facts of the case, if one peruses the approval dated 28th August 2004, undoubtedly it refers to the effect of consideration of all the materials which were placed before the authority and thereafter grant of approval for initiating proceedings under MCOC Act. Undoubtedly, while referring to the acts of the accused, all the ingredients of the definition of the “organized Crime” do not seem to have been incorporated in the order of approval. However, that itself cannot be a justification for interference in holding the approval to be invalid or bad in law, in view of the fact that the prosecution is entitled to establish the same by leading necessary evidence. Prima facie the competent authority appears to have taken into consideration all the materials which would reveal or disclose the commission of the offence of organized crime involving the appellant/accused. It is too premature to arrive at any conclusion to the contrary merely on reading of the order of approval”.
As such, in view of this clear position of law, the argument does not
hold water.
370. As regards the reference of four cases against A1 Arun
Gawali, it can be seen that two chargesheets u/s. 380 and 387 of IPC
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which involves a pecuniary gain. Thus, there is due compliance of
Section 2(1)(d) of MCOC Act.
371. So far as A6 Bhintade and A7 Surve are concerned, they
can be verywell said to be the persons who have aided and abetted the
organized crime syndicate in killing Kamlakar Jamsandekar. They have
played an active role in view of the discussion hereinabove by paying
Rs.30 lakhs to A1 Arun Gawali while accompanying with A12 Pratap
and A13 Rane. Their act can indeed be said to be an abetment in view
of Section 2(1)(a)(i)(iii) of MCOC Act. They were part and parcel of
the conspiracy. In case of Bharat Shah vs. State of Maharashtra
reported in 2003 BCR (Cri) 947, it has been held that the definition of
abetment under MCOC Act would inclusive and include the ingredients
of Section 107 of IPC. The said view has again been reenforced by the
Hon'ble Supreme Court in case of Ranjit Singh Sharma vs. State of
Maharashtra and another reported in (2005) 5 SCC 294. Two
conspiracies were hatched between A1 Arun Gawali, A6 Bhintade, A7
Surve and A12 Pratap and A13 Rane in the middle of December 2006
for purely monetary reasons as well as for the elimination of Corporator
Kamlakar Jamsandekar. Another conspiracy by the same persons had
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 394
been hatched in January 2007 for different reasons. A6 Bhintade and
A7 Surve were the common accused in both the chargesheets. Thus, it
is clear that these different accused have different motives at different
points of time with a one common agenda to kill the Corporator
Kamlakar Jamsandekar. The prosecution has brought on record that
A20 Sunil Ghate is actively associated with the organized crime
syndicate of A1 Arun Gawali. The evidence is weak in so far as
involvement in the conspiracy of assassination of Kamlakar
Jamsandekar is concerned. Nevertheless, A20 Sunil Ghate's indulgence
in various criminal unlawful activities and his involvement in organized
crime has been sufficiently established by the prosecution in view of the
confessional statements of A10 Shrikrishna, A15 Patil and A9 Sandip
as well as from the evidence of P.W. 6 Arunkumar Singh, which has been
sufficiently proved that he is an active member of the ortanized crime
syndicate of kingpin A1 Arun Gawali. Not only that, during the
absence of A1 Arun Gawali, he used to act as the head of the organized
crime syndicate which involved in extortion, collecting ransom from the
builders, cable operators etc.
372. Similarly, the prosecution has not adduced cogent and
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convincing evidence in so far as A11 Narkar and A21 Ganesh Salvi are
concerned or their direct involvement and role in the conspiracy and
murder of Kamlakar Jamsandekar. So far as A8 Surendra Panchal is
concerned, as already discussed, when the weapon Art. 5 was procured
from him, he was not aware that the accused were going to commit the
offence of murder of Kamlakar Jamsandekar. The prosecution has
failed to bring on record sufficient evidence against him for violation of
the provisions of Arms Act i.e. manufacturing a country made handgun.
The evidence as regards the breach of provisions of Arms Act is only
against A2 Vijay Giri. These three accused, according to me, are
required to be given a benefit of doubt after having considered the
entire circumstances and evidence on record. Thus, A8 Surendra
Panchal, A11 Dinesh Narkar and A12 Ganesh Salvi are acquitted of the
offences with which they are charged.
373. Much has been argued by the defence on the point of
Section 2(1)(d) of the MCOC Act by contending that except A1 Arun
Gawali, the prosecution has not relied upon any of the previous charge
sheets against any of the accused. The law is well settled on this aspect.
What is required to be seen is the nexus or the link of the person with
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organized crime syndicate. The link with organized crime syndicate is
the crux of the term “continuing unlawful activity”. The Division Bench
of the Hon'ble Bombay High Court, in case of Govind S. Ubhe vs State
of Maharashtra reported in 2009 ALL MR (Cri) 1903 (Smt. Ranjana
Desai & R.G. Ketkar, JJ.), held and I reproduce the relevant paragraphs
thus:
“35. It is now necessary to go to the definition of 'continuing unlawful activity'. Section 2(1)(d) defines 'continuing unlawful activity' to mean an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one chargesheet have been filed before a competent court within the preceding ten years and that court have taken cognizance of such offence. Thus, for an activity to be a 'continuing unlawful activity'.a) the activity must be prohibited by law;b) it must be a cognizable offence punishable with imprisonment of three years or more;c) it must be undertaken singly or jointly;d) it must be undertaken as a member of an organized crime syndicate or on behalf of such syndicate;e) in respect of which more than one chargesheet have been filed before a competent
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court”.
“36. The words 'in respect of which more than one chargesheet have been filed' cannot go with the words 'a member of a crime syndicate because in that case, these words would have read as 'in respect of whom more than one chargesheet have been filed'”.
“37. But even otherwise, if all provisions are read together we reach the same conclusion. Section 2(1)(d) which defines 'continuing unlawful activity' sets down a period of 10 years within which more than one chargesheet have to be filed. The members of the crime syndicate operate either singly or jointly in commission of organized crime. They operate in different modules. A person may be a part of the module which jointly undertakes an organized crime or he may singly as a member of the organized crime syndicate or on behalf of such syndicate undertake an organized crime. In both the situations, the MCOCA can be applied. It is the membership of organized crime syndicate which makes a person liable under the MCOCA. This is evident from section 3(4) of the MCOCA which states that any person who is a member of an organized crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum of fine of Rs.5 lakhs. The charge under the MCOCA ropes in a person who as a member of the organized crime syndicate commits organized crime
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i.e. acts of extortion by giving threats, etc. to gain economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate. Therefore, if within a period of preceding ten years, one chargesheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said chargesheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the 'organized crime syndicate' is the crux of the term 'continuing unlawful activity'. If this link is not established, that person cannot be roped in”.
“44. In the light of this, we are of the opinion that the words 'more than one chargesheet' contained in Section 2(1)(d) refer to unlawful activities of the organized crime syndicate. Requirement of more than one chargesheet is qua the unlawful activities of the organized crime syndicate and not qua individual member thereof”.
“45. Mr. Desai's submission that inasmuch as the appellant's name is not mentioned in the approval granted under Section 23(1)(d) of the MCOC Act, the prosecution qua the appellant is vitiated, must also be rejected. In its judgment in Vinod Asrani Vs. State of
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Maharashtra (Special Leave Petition (Cri) No. 6312 of 2006 dated 21.2.2007, the Supreme Court has considered the same submission and observed that non inclusion of the accused in the approval under Section 23(1)(d) of the MCOC Act is not fatal to the investigation qua that accused. The Supreme Court observed that Section 23(1)(a) provides a safeguard that no investigation into an offence under the MCOC Act should be commenced without the approval of the concerned authorities. Once such approval is obtained, an investigation is commenced. The Supreme Court further observed that those who are subsequently found to be involved in the commission of the organized crime can very well be proceeded against once sanction is obtained against them under Section 23(2) of the MCOC Act”.
374. In case of Dinesh Madhav Bhondve vs. State of Maharashtra
reported in 2007 (2) Mh.L.J. (Cri) 718 (A.M. Khanwilkar, J.). The said
position has been clarified. I quote the relevant paragraph as under:
“a) the sine qua non for institution of offence punishable under the present Act i.e. MCOCA, is concerned, is essentially in relation to an offence of organized crime. If organized crime committed has resulted in death of any person, that is punishable in terms of section 3(1)(i). IN all other cases, it is punishable under section 3(1)(ii). The ortanized crime as perceived by this Act is of continuing unlawful activities as contained in section 2(1)(d), which in turn provides
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that the activity is prohibited by law for the time being in force which is a cognizable offence punishable with imprisonment of 3 years or more, undertaken singly or jointly as member of the organized crime syndicate or on behalf of such syndicate. If however, the activity prohibited by law, though qualifies the abovesaid requirement of clause (d), is committed, but, if it is first of its kind, that will not become continuing unlawful activity. For that, repetition of such activity within the stipulated period would attract clause (d), as it postulates that, for such activity more than one charge sheet have been filed before a competent court within the preceding period of 10 years”.
As such, the requirement of more than one chargesheet is qua the
unlawful activities of the organized crime syndicate and not qua
individual member thereof.
375. Thus, after having considered the entire facts, circumstances
and evidence on record, I hold that the prosecution has proved its case
beyond all reasonable doubts against A1 Arun Gawali, A2 Vijay Giri,
Gurav, A12 Pratap Godse, A13 Ajit Rane and A15 Suresh Patil u/s.
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3(1)(i) of the MCOC Act. Ofcourse, the charge has also been proved
against the deceased accused A7 Sadashiv Surve who died after the
arguments were heard, u/s. 3(2) and 3(1)(i) of the MCOC Act.
However, the case stands abated with respect to deceased A7 Sadashiv
Surve.
381. The prosecution has proved a charge u/s. 3 r/w 25(1B) of
the Arms Act against A2 Vijay Giri.
382. The prosecution has failed to prove the charge u/s. 3 r/w 25
(1B) of Arms Act against A8 Surendra Panchal, A10 Shrikrishna
Gurav, A11 Dinesh Narkar and A12 Pratap Godse.
383. Lastly, the prosecution has failed to bring home the guilt of
A8 Surendra Panchal, A11 Dinesh Narkar and A21 Ganesh Salvi
under any of the charges with which they are charged.
384. There are absolutely no material omissions, or
contradictions on record. The defence raised by the accused appears to
be improbable, unacceptable and unbelievable. I, therefore, hold the
aforesaid accused guilty as above.
385. At this point of time, I take here a pause to hear the accused
on the point of sentence.
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24th August, 2012. (P. K. CHAVAN) Special Judge,
City Civil & Sessions Court, Greater Mumbai.
386. As regards the sentence to be awarded to each of the
accused, I have heard each of them independently.
387. A1 Arun Gawali has prayed for leniency on the ground that
he is aged about 60 years, having children and aged mother who are his
dependents. He urged that the period undergone by him during trial is
sufficient and he be released. I haven't found any repentance on his
face.
388. A9 Sandip Gangan has also urged for leniency on the
ground that there is nobody to look after his 80 years old father. A9
Sandip Gangan is a bachelor, aged about 41 years.
389. A10 Shrikrishna Gurav has urged for a minimum sentence
by saying that he is not at all concerned with this case.
390. A12 Pratap Godse has also prayed for minimum sentence
and a set off in view of the period undergone by him during trial. He
further urged for leniency as his mother is suffering from cancer. His
younger brother who is prosecuting studies in Engineering college is
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also depending upon him.
391. A13 Ajit Rane has also prayed for leniency being
handicapped. He is also a bachelor.
392. A15 Suresh Patil prayed for his acquittal by contending that
his parents are old. On being asked to submit on the point of sentence,
he prayed for leniency.
393. A20 Sunil Ghate submits that he is the only earning
member of the family and, therefore, prayed for leniency.
394. A2 Vijay Giri submits that he has not committed the
offence. He is a poor person and is a bachelor. On the point of
sentence, he did not say anything.
395. A3 Ashokkumar Jaiswar also prayed for leniency by
contending that he is the only earning member of the family, having a
mother and three younger brothers. He too is a bachelor.
396. A4 Narendra Giri urged for leniency on the ground that he
has to look after his parents, brothers, two kids. He is a rikshaw driver
by profession.
397. A5 Anil Giri has also urged for leniency on the ground that
he has two marriageable sisters and parents. He is a bachelor. He
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submits that he knew nothing about the crime. Since his mother is ill,
he prayed for a leniency.
398. Lastly, A6 Sahebrao Bhintade urged that he is innocent and
has been falsely implicated because he had helped the widow of the
deceased Kamlakar Jamsandekar. He is an agriculturist. The deceased
was like his son. On the question of sentence, he did not say anything.
399. Mr. Thakare, the learned SPP while arguing on the point of
sentence has strongly advocated the capital punishment in so far as A1
Arun Gawali, A2 Vijay Giri and A12 Pratap Godse are concerned. He
submits that A2 Vijay had executed the murder of the deceased by
using the handgun which was recovered from him and who was
identified by P.W. 7 (Manali). So far as A12 Pratap is concerned, it is
submitted that he is the first person who come up with an idea of
procuring a weapon for the use of the members of organized crime
syndicate for settling and extorting money from businessmen and
builders which is evident from the testimony of P.W.11 Ramchandra.
Secondly, he is the person who took A6 Bhintade and the deceased
Surve to A1 Arun Gawali at Dagdi chawl. Thirdly, he is the person who
paid Rs.30 lakhs to A1 Arun Gawali out of which, he got Rs.60,000/.
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Fourthly, he asked coaccused, A10 Shrikrishna whether some persons
would be available for killing. He is the person who asked P.W. 4 Addu
to show the house of the deceased Kamlakar to the shooters, especially
A2 Vijay, A3 Ashokkumar and A4 Narendra. Next, he is the person
who arranged for money and weapon. He is associated with Akhil
Bhartiya Sena, headed by A1 Arun Gawali which is the political front of
the organized crime syndicate and he was the first person to whom the
killing was reported by A2 Vijay.
400. In so far as A1 Arun Gawali is concerned, it is argued by Mr.
Thakare that he is at the helm of the organized crime syndicate who is
indulged in illegal activities of extortion and contract killings. This has
been surfaced from the oral evidence of P.W. 6 Arun Singh and P.W. 28
Mahesh Shah and from the confessions of A9 Sandip Gangan, A10
Shrikrishna Gurav and A15 Suresh Patil. Thus, according to Mr.
Thakare these three accused stand on different footings than the others
and, therefore, deserve a death penalty.
401. On the other hand, Mr. Pasbola, the learned counsel
appearing on behalf of Accused nos. 1 and 2, strongly objected the
award of death penalty to accused nos. 1 and 2 by contending that it
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would be violative of Article 21 of the Constitution. According to Mr.
Pasbola, Section 27(3) of the Arms Act and Section 31(A) of the NDPS
Act are the only sections which provides only death penalty. However,
Section 3(1)(i) of MCOC Act, provides death or imprisonment for life.
According to Mr. Pasbola, since the Legislator had provided both the
sentences and, therefore, the present case is to be viewed in view of the
ratios laiddown by the Hon'ble Supreme Court in various cases more
particularly in case of Santosh Kumar satishbhushan Bariya vs. State
of Maharashtra reported in (2009) 2 SCC (Cri) 1150.
402. It is the contention of Mr. Thakare that MCOC being a
special statute, the criteria of rarest of rare case need not be made
applicable in this case. He drew my attention to the statements of
objects and reasons. Mr. Thakare has, therefore, placed reliance on
certain authorities of the Hon'ble Supreme Court which I shall deal with
hereinafter. He argued that a sitting MLA hatches a conspiracy and for
monetary gain executes a sitting corporator who has a public figure is a
special reason, in view of Section 354(3) of Cr.P.C. for awarding a death
penalty. The act of A1 Arun Gawali is a culmination of his past history
and, therefore, it is more serious than Section 302 of the IPC. Mr.
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Thakare has, therefore, tendered certain documents in view of Section
17 of the MCOC Act. He drew my attention that A1 Arun Gawali is
already facing a trial under the provisions of MCOC Act in MCOC
Special Case No. 5/2008, which is a prior case, pending in this court
which itself is an aggravating circumstance against A1 Arun Gawali.
He also brought to my notice that in the past, A1 Arun was detained
under the Maharashtra Prevention of Dangerous Activities of Slumlords,
bootleggers, Drug Offenders and Dangerous Persons Act by order dated
18th September 1997, passed by the then Commissioner of Police,
Mumbai. The said order of preventive detention was challenged by A1
Arun Gawali by filing a Habeas Corpus Petition before the Hon'ble High
Court through his wife Asha Arun Gawali. However, the writ petition
was dismissed by the Hon'ble Bombay High Court and the said
judgment is reported in MANU/MH/0471/1999. As such, this also an
aggravating circumstance as per Section 17 (1)(b) of the MCOC Act.
403. I have gone through the judgment in Writ Petition No.
1118/1997, decided by the Hon'ble High Court on 31.8.1998 in case of
Smt. Asha Arun Gawali vs. State of Maharashtra and others. In the said
case, the Hon'ble High Court had given the detail history of A1 Arun
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Gawali and his indulgence in different criminal activities in the past as
well as registration of offences and the cases of extortion. The said
petition was dismissed.
404. There is no doubt about the indulgence of A1 Arun Gawal
in various crimes in the past. The question is whether the present case
falls in the rarest of rare category as enunciated by the Hon'ble Supreme
Court in case of Bachan Singh Vs. State of Punjab reported in (1980)
2 Supreme Court Cases 684, for the effective compliance of sentencing
procedure u/s. 354(3) and Section 235(2) of Cr.P.C.,wherein sufficient
discretion is a precondition. Strict channeling of discretion would also
go against the founding principles of sentencing as it will prevent the
sentencing court to identify and weigh various factors relating to the
crime and the criminal such as culpability, impact on the society, gravity
of offence, motive behind the crime etc. This has also been a ratio laid
down in the Bachan Singh's case. It appears that the prosecution has
emphasized on awarding capital punishment only to A1 Arun Gawali
for, the learned SPP Mr. Thakare has not much stressed on awarding
capital punishment to A2 Vijay Giri and A12 Pratap in comparison
with A1 Arun Gawali. The State has not submitted material so far as
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A2 Vijay is concerned about the past involvement in any of the criminal
activities other than the present one. He is a young man whose
occupation is a rikshaw driver. It is not the contention of the
prosecution that there is no chance of his reformation. Looking to the
economic background of A2, Vijay and his young age and the
circumstances in which he had committed the offence, I feel that he can
be given a chance of reformation and his case does not fall within the
ambit of rarest of rare case.
405. As regards A12 Pratap, it is argued by Mr. Rasal that he is a
member of the political party of A1 Arun Gawali viz. Akhil Bhartiya
Sena. He is not a criminal. He runs a business of travelling and looking
to his young age, Mr. Rasal has prayed for life imprisonment. No doubt,
A12 Pratap also is a young man and it is not the case of the prosecution
that there is no chance of his reformation. He, therefore, does not
deserve the capital punishment in view of the ratio laiddown by the
various decisions of the Hon'ble Supreme Court which shall be
discussed hereinbelow.
406. Mr. Pasbola while strenuously arguing for A1 Arun Gawali
submits that every murder is heinous, but only because it is a murder,
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death sentence cannot be given. Kamlakar Jamsandekar was not the
first elected representative who was shot dead in his house. This is not
the first case wherein the murder has been premeditated. He also
submits that despite death sentences, the crime rate has not gone down.
In the instant case, despite being reformed A1 Arun Gawali being
hauled up for his past crimes for which he was never convicted. It is
true that unless a person is proven guilty, he should be presumed
innocent. Nothing has been brought on record to show that even after
all these years that the criminal trials which are pending against A1
Arun Gawali had resulted in his conviction. Unless the same is shown
by the documents on record, he should be presumed innocent.
Presumption of innocence is an human right. This has been held by the
Hon'ble Supreme Court in case of Mohd. Farooq Abdul Gafur and
another vs. State of Maharashtra reported in (2010) 14 SCC 641.
407. Mr. Thakare on the other hand, has placed reliance on some
of the authorities which I quote hereinbelow:
(1) Mithu v. State of Punjab reported in
(1983) 2 Supreme Court Cases 277.
In this case, Section 303 of IPC was struck down being unconstitutional.
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It is held that imposition of mandatory sentence of death on commission
of murder while undergoing life imprisonment in jail or outside jail
when on parole, without giving any scope for application of judicial
discretion considering facts and circumstances; of each case held, harsh
oppressive and unjust. Deprivation of procedural safeguards of Sections
235(2) and 354(3), Cr.PC to such convicts, held, unjust and arbitrary.
(3) State of Maharashtra Vs. Bharat Chaganlal
Raghani & ors. reported in (2001) 9 Supreme
Court Cases 1.
This case is under the provisions of TADA in which weapon like AK 47,
revolver, pistol etc. were used and several bullets were fired. Mr.
Thakare, the learned SPP drew my attention to the first three
paragraphs of the judgment which are as under:
“Under the heaps of voluminous record in the form of various paperbooks spread over thousands of pages, lies the hidden story relating to the new “merchants of death and destruction”. Upon dissection, when peeped into, it reflects the woeful situation
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prevalent in the society where writs of the organized criminal gangs run which affect the peaceful and innocent citizens of the country. This world of gangsters, popularly known as the “underworld”, comprises various gangs headed by notorious dons for whom the only valuable thing in life is “wealth” and the useless thing, the “life” of others. Deaths are sold by these dons at their asking price and purchased by those who resort to have immediate results for their enrichment with the deflation of their otherwise inflated money bags. To this underworld, the unemployed, thoughtless and dejected youths are attracted and the bosses of the gangsters leave no stone unturned to utilize the services of such frustrated and misled youth for the commission of crimes, to further their evil designs. Contract killings by employing mercenary killers, after receipt of a consideration known as supari are the order of the day, particularly in commercial cities of the country where the race for getting enriched overnight is going on at jet speed”.
2. Mumbai (with its erstwhile name Bombay), known as the commercial capital of the country, is at the top where such crimes are committed every now and the. Piling of the cases in the courts of law without their disposal particularly with respect to disputes relating to property is reported to have created satellite centres of unusual trade where private courts are held by the gangsters and disputes are solved according to the will of those who can pay as per demand of the criminal dons. It is
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said that the unaccounted accumulation of black money in the hands of a few has encouraged the gangsters to widen the scope of their activities. Because of the money and muscle power, they are in a position of procuring highly sophisticated weapons. Such gangs collect money from various businessmen, land developers, persons carrying on illegal activities in gambling dens, drug traffickers etc. Such collected money is termed as “protection money” which in Marathi is referred to as khandani (Khandani is a Marathi word which relates to the long past history where the rulers used to collect Khandani from their subjects). A feeling is prevalent in the city that it is not the State alone which can protect the life and property of the rich and influential, but it is the criminals who render protection to such people for the consideration of the “protection money” received by them”.
3. Such ongoing activities of the underworld are problems faced not only in Mumbai and this country but all over the globe. Generally known abroad as “organised crime”, it has been found to be a subejct to fascination in popular culture and a major criminal justice concern in the western world. Such organised crimes pose various problems to the world community concerned to combat and fight it out”.
However,it can be seen that though gruesome murders were committed
by the accd. who were awarded with death penalty, the Hon'ble S.C.
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by taking into consideration all the attending circumstances converted it
into life. Paragraph 63 of the said judgment can be reproduced for
advantage as under:
63. “We, therefore, hold that the trial court committed a mistake of law in not relying upon the confessional statements of A5 and A6 to ascertain their involvement in the commission of the crime with which they were charged. Confessional statements having been proved to be voluntarily made and legally recorded, which generally stood corroborated, were sufficient to hold that the aforesaid persons were guilty of hatching the conspiracy with A7 to A13 for commission of offence with which they were charged. Setting aside the judgment of the trial court to that extent we convict A5 and A6 for the offences under Sections 302, 307 read with Sections 120B, 23, 114 of the Indian Penal Code, Section 3 read with Section 25(1B)(a), Section 5 r/w Sec. 27 of the Arms Act, Secs. 3, 2(i), 3(2)(ii), 3(3), 3(5), 5 and 6 of the terrorist and Disruptive Activities (Prevention) Act, 1987. We are, however, of the opinion that being misled youth they do not deserve the maximum penalty impossible under law and the case is not the rarest of the rate cases warranting death sentence. Subhash Bind (A5) and Sekhar Kadam (A6) are, therefore, sentenced to life imprisonment for the major offence of murder, punishable under Sec. 302 r/w Sec. 120B IPC. We do not award separate sentences to the aforesaid accused persons for the other offences
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committed by them”.
408. As a matter of fact, in case of Santosh Kumar Satisbhushan
Bariyar vs. State of Maharashtra reported in (2009) 2 SCC (Cri)
1150 and in case of Mohd. Farooq Abdul Gafur and anr. vs. State of
Maharashtra reported in (2010) 14 SCC 641, the Hon'ble Supreme
Court has in detail discussed about the sentencing policy. The relevant
paragraphs in Mohd. Farooq Abdul Gafur and anr. vs. State of
Maharashtra are as follows:
“136. So far as the State appeal as far as Accused 7 is concerned, it is filed only for the purpose of enhancement of his sentence inasmuch as the State by filing the present appeal has questioned the order of the High Court altering the sentence of capital punishment to that of imprisonment for life. However, considering the entire facts and circumstances of the case and the evidence placed on record against him, we find that capital punishment in the instant case would not be justified and, therefore, the appeal of the State so far as the issue with regard to alteration of the sentence of imprisonment of life to that of capital punishment is dismissed”.
“147. Since in one of the appeals relating to a coaccused, life sentence awarded was upheld by this Court without issuing any notice for enhancement of sentence, we find
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no reason to take a different view in the cases of the other accused herein, particularly when in respect of Accused 5 and 6 there was an order of acquittal by one Court. Lastly, the order of conviction and sentence passed by the High Court against Accused 8 is upheld and the sentence of imprisonment of life is maintained on the same ground”.
“170. One of the accused in the instant case was acquitted in December 2003 by the High Court. It has been more than 8 years since he was freed in relation to the matter at hand. At this juncture, this becomes a relevant factor”.
“171. In State of Maharashtra v. Manglya Dhavu Kongil even though the Supreme Court reversed the acquittal by the High Court and restored the original conviction of the trial court, it did not award the sentence of death observing that the death sentence had been awarded over four years previously and in the period in between, the accused had been freed from prison”.
“172. In State of U.P. v. Sughar Singh this Court awarded life imprisonment stating: (SCC p. 194, para 17)
“17. ... having regard to the considerable time that has elapsed since the date of the occurrence and having regard to the fact that the High Court's decision of acquittal in their favour is being set aside by us, the extreme penalty of death ought not to be imposed....”
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“173. Similar reasoning was offered by this Court in State of Haryana v. Sher Singh, State of U.P. v. Hakim Singh, Gurnam Kaur v. Bakshish Singh, State of U.P. v. Sahai and State of U.P. v. Suresh (for a rigorous and comprehensive review of death penalty jurisprudence on this issue and otherwise please see Amnesty International Report titled “Lethal Lottery: The Death Penalty in India___A study of Supreme Court judgments in death penalty cases 19502006”).
Recent decisions:“174. Recently the question as to the imposition of death penalty again came for consideration before this Court in State of Punjab v. Manjit Singh. Therein the two accused had been held responsible for the murder of four persons which included the husband and the son of the women both of them were having an illicit relationship with (sic). The deceased had objected to the said relationship and even physically abused the lady. This is what ultimately incited the accused to murder the deceased persons in cold blood. The trial court sentenced both the accused to a death sentence. The High Court in reference however commuted the sentence to one for life”.
“175. Brother Sharma, J. while deciding the question of sentencing in Manjit Singh case reiterated the law with respect to the imposition of a death penalty, observing: (SCC p. 37, para 20).
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“20. The above discussed legal principles have been followed consistently in numerous judgments of this Court. Whether the case is one of the rarest of rare cases is a question which has to be determined on the facts of each case. It needs to be reiterated that the choice of the death sentence has to be made only in the rarest of rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society and where the crime is committed in an organized manner and is gruesome, coldblooded, heinous and atrocious; where innocent and unarmed persons are attacked and murdered without any provocation”. The Court accordingly affirmed the judgment of the High Court on the ground that the accused had only acted out in the gruesome manner after coming to know of the ill treatment meted out by the deceased persons to the women they had feelings for.
“176. We may also place on the record that in Rameshbhai Chandubhai Rathod v. State of Gujarat two of the Hon'ble Judges of this Court differed on the question of imposition of death penalty”.
“177. In the facts and circumstances of the case, and having regard to the wellsettled principles of law that we have referred to hereinbefore, we are not persuaded, as has rightly been held by Brother Sharma, J., that it is not a case where the only sentence to which the accused persons herein were entitled to was that of death”.
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“178. In our opinion the trial court had wrongly rejected the fact that even though the accused had a criminal history, but there had been no criminal conviction against the said three accused. It had rejected the said argument on the ground that a conviction might not be possible in each and every criminal trial. In our opinion unless a person is proven guilty, he should be presumed innocent. Further, nothing has been brought on behalf of the State even after all these years, that the criminal trials that had been pending against the accused had resulted in their conviction. Unless the same is shown by the documents on records we would presume to the contrary. Presumption of innocence is a human right. The learned trial Judge should also have presumed the same against all the three accused. In our opinion the alleged criminal history of the accused had a major bearing on the imposition of the death sentence by the trial court on the three accused. That is why in our opinion he had erred in this respect”.
“179. It is also to be noted that the trial court has brought on record various irrelevant and invidious considerations with respect to sentencing. The trial court observes that death penalty must be awarded in this case so as to motivate the police not to indulge in encounter killings and catch the accused alive. Role of ISI Agency of Pakistan, black money racketeering in the organised crime syndicate has also been discussed at great length in the sentencing part of the
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judgment. These aspects are not only absolutely irrelevant to sentencing in the instant case but also bears an extremely subjective and loose articulation and delineation of factors relevant to sentencing in the instant case”.
409. In this case, after hearing the respective counsel and the
accused in person and after considering the background, history
particularly of A1 Arun Gawali, I feel that this is not a case falling
under the category of the rarest of rare case in view of the ratio laid
down by the various judgments of the Hon'ble Supreme Court.
Moreover, the offence against A1 Arun Gawali is proved by
circumstantial evidence which attracts the ratio of the Hon'ble Supreme
Court in case of Aloke Nath Dutta and others vs. State of West
Bengal reported in MANU/SC/8774/2006 paragraph 87 of the
judgment reads thus:
87. In the case of Roper v. Simmons 543 U.S. 551(2005) respondent planned and committed a capital murder. After he had turned 18, he was sentenced to death. His direct appeal and subsequent petitions for state and federal post conviction relief were rejected. The court held that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed”.
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410. In Santosh Kumar's case, the victim was tied with a rope
round his neck and pulled it from its both ends. The deceased tried
to struggle, but his movements stopped after some time. His dead
body was dragged to the toilet. A1 Santosh Kumar separated the
head of the deceased with a hacksaw blade and a sickle and kept
the head in a polythene bag. Thereafter, he separated both the
hands of the deceased. The hands too were kept in a polythene
bag. He then asked A2 Sanjeevkumar Roy to cut the legs of the
deceased which he did. Both the accused packed the legs in two
separate bags. They all spent about two hours for cutting the body
of the deceased. They disposed off those bags containing parts of
the body at different placed. In this case also, the Hon'ble Supreme
Court set aside the death penalty and award life sentence. I quote
the relevant paragraphs as follows:
“58. The rarest of rate dictum breathes life in “special reasons” under Section 354(3). In this context, Bachan Singh laid down a fundamental threshold in the following terms: (SCC p. 751, para 209)“209. ... A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality.
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That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed”. An analytical reading of this formulation would reveal it to be an authoritative negative percept. The “rarest of rare cases” is an exceptionally narrow opening provided in the domain of this negative percept. This opening is also qualified by another condition in the form of “when the alternative option is unquestionably foreclosed”.
“59. Thus, in essence, the rarest of rare dictum imposes a wideranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:
1. that the case belongs to the rarest of rare category.
2. and the alternative option of life imprisonment will just not suffice in the facts of the case.
“60. The rarest of rate dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of the interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rate dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum”.
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“61. The background analysis leading to the conclusion that the case belongs to the rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception. A conclusion as to the rarest of rate aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the criminal. It was in this context noted: (Bachan Singh case, SCC p. 738, para 161).“161. ... The expression 'special reasons' in the context of this provision, obviously means 'exceptional reasons' founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal”.
“64. Another aspect of the rarest of rare doctrine which needs serious consideration is interpretation of latter part of the dictum (SCC p. 751, para 209) “that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed (emphasis supplied)”. Bachan Singh suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment' will be futile and serves no purpose”.
“65. Death punishment, as well be discussed in detail a little later, qualitatively stands on a very different footing from other types of punishments. It is unique in its total irrevocability. Incarceration, life or
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otherwise, potentially serves more than one sentencing aims. Deterrence, incapacitation, rehabilitation and retribution – all ends are capable to be furthered in different degrees, by calibrating this punishment in light of the overarching penal policy. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore puts an end to anything to do with the life. This is the big difference between the two punishments. Before imposing death penalty, therefore, it is imperative to consider the same”.
“66. The rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal, along with other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh sets the bar very high by introduction
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of the rarest of rare docttine”.
“67. In Panchhi v. State of U.P. this Court also elucidates on “when the alternative option is foreclosed” benchmark in the following terms: (SCC p. 182, para 16).16. When the Constitution Bench of this Court, by a majority, upheld the constitutional validity of death sentence in Bachan Singh v. State of Punjab this Court took particular care to say that death sentence shall not normally be awarded for the offence of murder and that it must be confined to the rarest of rate cases when the alternative option is foreclosed. In other words, the Constitution Bench did not find death sentence valid in all cases except in the aforesaid freaks wherein the lesser sentence would be, by any account, wholly inadequate. In Machhi Singh v. State of Punjab a threeJudge Bench of this Court while following the ratio in Bachan Singh case laid down certain guidelines among which the following is relevant in the present case: (Machhi Singh case, SCC p. 489, para 38). '(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.'” (emphasis supplied)
“68. In Bachan Singh it was stated (SCC p. 750, paras 20607).“206. Dr. Chitale has suggested these
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mitigating factors:
'Mitigating circumstances. __ In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
(1)That the offence was committed under the influence of extreme mental or emotional disturbance.
(2)The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3)The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4)The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above.
(5)That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6)That the accused acted under the duress or domination of another person.
(7)That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
“80. It is also to be pointed out that public opinion is difficult to fit in the rarest of rare matrix. People's perception of crime is neither an objective circumstance relating to
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crime nor to the criminal. Perception of public is extraneous to conviction as also sentencing, at least in capital sentencing according to the mandate of Bachan Singh”.
“81. The rarest of rate policy and legislative policy on death punishment may not be essentially turned to public opinion. Even if we presume that the general populace favours a liberal death punishment policy, although there is no evidence to this effect, we cannot take note of it. We are governed by the dictum of Bachan Singh according to which life imprisonment is the rule and death punishment is an exception”.
“93. Bachan Singh elaborated on “wellrecognised principles” in the following terms: (SCC p. 748, para 197)
“197. In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on wellrecognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By 'wellrecognised principles' the Court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. (emphasis supplied). The legislative changes since Jagmohan as we have discussed already – do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme
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penalty can be inflicted only (emphasis in original) in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances, of the offence, due regard must be paid to the circumstances of the offender, also”.
“102. In Bishu Prasad Sinha v. State of Assam this Court commuted the death penalty of the accused on the ground that the prosecution case was entirely based on circumstantial evidence”.
“103. In State of Maharashtra v. Prakash Sakha Vasave the accused had brutally attacked with axes the husband of their sister, who was having an illicit relationship with another woman. The trial court had found two of the accused guilty and sentenced them to death. In appeal the High Court acquitted the accused because of lack of evidence. This Court in appeal set aside the judgment of acquittal passed by the High Court but noticed that the case before it did not fall in the rarest of rare category and deserved only life imprisonment”.
411. Since this is not a case falling under the rarest of rare
category, there is no necessity for giving special reasons and, therefore, I
am not agreed with the proposition put forth by the learned SPP that
the criteria of rarest of rare case need not be made applicable to the
special statute, for the reason that the Hon'ble Supreme Court has
considered the said aspect in case of Mohd. Farooq Abdul Gafur vs.
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State of Maharashtra. In the said case, there was a rampant use of
weapons like AK 56 rifle, 9 mm pistol etc. by the assailants which had
resulted in death of some of the victims. I humbly feel that this is not a
case where A1 Arun Gawali, A2 Vijay Giri and A12 Pratap Godse
deserve death penalty.
Now, to the order:
O R D E R
1. A1 Arun Gulab Gawali, A9 Sandip alias Sandy Baliram
Gangan, A10 Shrikrishna alias Babu Tukaram Gurav, A12 Pratap
wallet along with Misc. papers, Rs.30 (Art. 11 colly. in SC No. 482/08)
and Art. 21A wrapper.
The aforesaid muddemal property be kept back in S.C. No.
482/2008 and shall not be disposed off for one year after the disposal
of the said case. If in the mean while, intimation of an appeal having
been filed in the Hon'ble High Court, in the present matter is received,
the said muddemal shall not be disposed off until a period of one year
expires from the date of the decision of appeal to the Hon'ble High
Court (Chapter VI paragraph 73 (1)(d) of Criminal Manual).
19. Muddemal property seized in MCOC Special Case No.
7/2008 @ 16/2008 @ 3/2009 @ S.C. No. 529/2007 be disposed off as
follows:
Art. no.1 wooden piece (Scar butt), being a part of a country
made handgun Art. no.5, Art. no. 7 (colly.) Air cushion and 71 pellets,
Art. no.8 container, be confiscated to the State in view of Sec. 32 of the
Arms Act subject to the decision of appeal. Art. no. 2 (colly.) two
mobile phones (Nokia company), Art. no. 3 (colly.) 11 small diaries, 1
register/account book, 9 documents in the nature of affidavits, 1
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telephone diary @ some pinned loose sheets, Art. no.4 bag suitcase
Vibsol and Art. no. 6 wrapper, Art. no. 22 (colly.) three identity cards
and one mobile phone of Nokia company be returned to the persons
from whom these articles have been seized.
20. The white Santro Car bearing registration No. MH01AM
3482 be delivered to A15 Suresh Patil on his executing a bond in the
sum of Rs.2 lakhs and shall restore the said property to the Court, if this
order is modified or set aside in appeal.
21. The effect of the order as regards the disposal of muddemal
property shall take place in view of Chapter VI Paragraph 73 (1)(d) of
the Criminal Manual.
22. The original station diaries as shown hereinbelow be
returned to the concerned police stations after retaining legible true
copies of the relevant exhibited portions in the case.
Exhibit No. Description
276,277 & 278 Original Station Diary of Sakinaka PS
449 Original Station Diary of Chembur PS
450 Original Station Diary of Gaodevi PS
451 Original Station Diary of LT Marg PS
452 Original Station Diary of Mahim PS
453 Original Station Diary of Yellowgate PS
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454 Original Station Diary of Colaba PS
455 Original Station Diary of Bandra PS
31st August, 2012. (PRITHVIRAJ K. CHAVAN) Special Judge.
Dictated on: 17.7.12,19.7.12,21.7.12,23.7.12,24.7.12,27.7.12,30.7.12,1.8.12,2.8.12,3.8.12,6.8.12,7.8.12,8.8.12,9.8.12,10.8.12,13.8.12,16.8.12,17.8.12,22.8.12,30.8.& 31.8.12.Transcription completed on: 01.09.2012.Signed on:C.C. issued on: