Judgment - 1 - MCOC Pl. Case No.2/12. IN THE COURT OF SPECIAL JUDGE DESIGNATED UNDER MCOC ACT AT GR. MUMBAI. MCOC SPECIAL CASE NO. 2 OF 2012 The State at the instance of DCB CID Mumbai C.R.No.86/11(J.J.Marg Police Stn.C.R.No.138/11) ... Complainant V/s. 1. Riyaz Ahmad Hussain Shaikh @ Bhaiji Age : 47 years. R/o : A-1 Tower Hill Park, Flat No.1204, Agrawal Estate, Jogeshwari,(W) Mumbai. 2. Nilesh William Jatanna @ Annu Age : 28 years. R/o: Dahisar Cheknaka, Raikar Wadi, Room No.66. Dist. Thane. 3. Prashant Prasad Rao @ Sunny Age: 37 years. R/o: Mira Gaon, Munish Compound, Behind Dr. Khan's Clinic, Opp.Amish Park, Kashmira, Dist-Thane. 4. Mohammad Jafar Esak Madhwala @ Chacha Age: 61 years. R/o: Rizwan Apartment, A-20, Ground Floor, Room no.1, Amrut Nagar, Jogeshwari (W), Mumbai-102. 5. Zakariya Bashir Khan @ Jiko @ Salim Age: 44 years. R/o: Zopada no.5, Mahim Darga Mohalla, Backside of Akram Terrace building, Mahim, Mumbai-16. ....Accused ...2/-
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Ejaz Ladkawala Gang Extortion Case MCOCA Special Court Judgement
A special MCOCA court had convicted three members of the Ejaz Lakdawala gang and acquitted two others in connection with a 2011 extortion case against a builder. The court convicted three persons and sentenced them to ten years of imprisonment and imposed a fine of Rs 15 lakh on each.
According to the crime branch of Mumbai Police, in October 2011, two persons came near the builder's office and fired three rounds at one of his staff members, out of which one bullet hit his leg.
The police later arrested five persons - Riyaz Sheikh, Nilesh Jatanna, Prashant Rao, Mohammed Madhwala and Zakaria Khan - of the Lakdawala gang. The prosecution's case was that Nilesh and Prashant had fired at the staff at the instance of Riyaz. During the recording of the statement, the builder told police that he had received calls from Lakdawala demanding Rs 50 lakh protection money from him, which he had refused to give.
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Judgment 1 MCOC Pl. Case No.2/12.
IN THE COURT OF SPECIAL JUDGE DESIGNATED UNDER MCOC ACTAT GR. MUMBAI.
MCOC SPECIAL CASE NO. 2 OF 2012
The State at the instance of DCB CIDMumbai C.R.No.86/11(J.J.Marg PoliceStn.C.R.No.138/11) ... Complainant
V/s.1. Riyaz Ahmad Hussain Shaikh @ BhaijiAge : 47 years.R/o : A1 Tower Hill Park, Flat No.1204, Agrawal Estate, Jogeshwari,(W)Mumbai.
Mr. D.M. Shah Learned Special P.P. for the State/Complainant.Mr. Sejpal Learned Advocate for accused no.1.Mr. Manerkar Learned Advocate for accused no.2 and 4.Mr. Taraq Sayyed Learned Advocate for accused no.3Mr. Ware Learned Advocate for accused no.5.
Offences: U/sec. 307, 120(B) r/w 387 of IPC, 506 PartII r/w sec. 387, 34 of IPC, 3 r/w 25 of the Arms Act, 37/135 of the B.P. Act, 3(1)(ii), 3(2),3(4) of MCOC Act, 1999.
CORAM: HIS HONOUR THE SPECIAL JUDGE SHRI P.R. Deshmukh.
JUDGMENT (DELIVERED ON 17 th November, 2014)
1. Unfolded case of prosecution is as follows.
2. Nirbhan Construction Company dealing in construction business is
situated at Kamruddin Street, Nagpada Mumbai. Akram Nirbhan is
proprietor of the Company. One Sohel Khan was working as real Estate
Agent at Nirbhan Construction. On 1/10/2011, at about 12.30 p.m., Sohel
Khan reached to Nirbhan Construction Company and was at reception
office with father of Akram Nirbhan. When they were discussing, Sohel
noticed his client Sagir Ahmed passing from Road. He was stopped by
Sohel and were discussing on account of cheque due from him towards
Nirbhan Construction. When their discussion was going on, Sohel noticed
two persons coming towards him on red coloured motorbike from Moulana
...3/
Judgment 3 MCOC Pl. Case No.2/12.
Shoukat Ali Road. Both were staring at him. All of sudden person who was
pillion rider took out fire arm pistol and by pointing out towards him fired
three rounds of bullet. He avoided two rounds but one bullet hit at his leg
thereby causing bleeding injury. He immediately raised voice by saying
“Pakado Pakado Goli Mara”. By hearing such shout of Sohel after firing,
they both by pointing out fire arms towards public ran away from
Dimtimkar Road.
3. Employee of Nirbhan Construction namely Nabeel took injured
Sohel to J.J. Hospital where he was treated and operated. Ultimately on
the basis of statement of injured Sohel, FIR as per C.R.No.138/2011 for
offences under section 307, r/w 34 of IPC and 3/25, 27 of Arms Act came
to be registered at J.J. Marg Police Station against two unknown persons.
4. As per story of prosecution, second incident took place on
14/10/2011 when investigation of aforesaid C.R.No.138/2011 was going
on. Crime Branch UnitIII received information that accused were in the
way to reach in Nagpada area with some fire arms. Senior Police Inspector
Prashant Marde deputed a team of UnitIII for arranging trap as per secret
information. ASI Chalke, API Tawade and PI Dhanawade alongwith other
police staff arranged trap near BMC Beat Chowki at Nagpada area. Police
team noticed three persons passing from BMC Beat Chowki. They were
intercepted by police team. Personal search of those three persons was
taken in presence of panch witnesses. Police found four fire arms namely
pistols and nine live cartridges in possession of those three persons. In
...4/
Judgment 4 MCOC Pl. Case No.2/12.
interrogation, they told their names as accused no.1,2 and 3. After seizure
of weapons and articles on spot, accused and articles were taken to
Nagpada Police Station and LAC No.2220/2011 for offence under section
3/25 of Arms Act was registered and as per C.R.No.35/2011 by Criminal
Detection Branch further investigation was handed over to Crime Branch
UnitIII. Meantime C.R.No.138/2011 of J.J. Marg Police Station was also
handed over to Crime Branch UnitIII as per order of A.C.P. (Crime) dated
19/10/2011. During interrogation with arrested accused nos. 1 to 3 other
accused nos. 4 and 5 came to be arrested on 10/11/2011 and 13/11/2011
respectively having seen their involvement in commission of crime.
5. During interrogation with accused Prashant Rao, he gave
memorandum statement about discovery of Nokia Mobile from his house
Miragaon. As per his memorandum statement in presence of panch
witnesses, Mobile hand set of Nokia company came to be seized under
panchanama. Similarly as per memorandum and seizure panchanama,
two mobile hand sets of Micromax and L.G. companies came to be seized
at the instance of accused Zakariya Bashir Khan @ Jiko. Blood stained
shirt and jeans pant came to be seized from injured Sohel as per seizure
panchanama. Blood stained soil, two empty cartridges, one live cartridge
came to be seized from spot of firing incident in presence of pancha
witnesses. Photographs(5) of spot of firing incident were taken with the
help of photographer Ahmed Kaji on 1/10/2011. During the course of
investigation medical examination report of injured Sohel who had
received bullet injury in the incident came to be collected.
...5/
Judgment 5 MCOC Pl. Case No.2/12.
6. During further course of investigation and interrogation with
proprietor of Nirbhan Construction namely Akram, it was revealed to
police that on 9/9/2011, there was threat of extortion to him from Ejaj
Lakadawala from Abroad on his mobile phone demanding extortion money
Rs. Three Crores. It is allegation against accused nos. 1 to 3 that on the
say of said Ejaj Lakadawala who is leader of Organized Crime Syndicate
initially they inspected site of Nirbhan Construction and as Mohd. Akram
did not fulfill demand of ransom amount, ultimately accused Nilesh and
Prashant Rao on 29/9/2011 had been to Nirbhan Construction site for
firing and creating terror in the mind of Mohd. Akram, but did not succeed
on account of lot of persons present at the site on that day. However,
ultimately on 1/10/2011, accused Nilesh and Prashant Rao succeeded in
the firing incident in which Sohel received bullet injury at the hands of
accused Prashant Rao who was pillion rider with Nilesh on motorbike
which was driven by accused Nilesh.
7. As per further story of prosecution on next day of firing incident i.e.
on 2/10/2011, Mohd. Akram Nirbhan received four SMS of threatening
call on his mobile from Ejaj Lakadawala threatening him of death if his
demand is not fulfilled. On third day of incident, Ejaj Lakadawala by
giving phone call to Mohd. Akram Nirbhan reduced his demand from Rs.
three Crores to Rs. one and half Crores. However, by saying that his
business is newly started, he is not in position to pay said huge amount,
refused to pay the ransom to Ejaj Lakadawala.
...6/
Judgment 6 MCOC Pl. Case No.2/12.
8. On the basis of aforesaid information supplied by Mohd. Akram
Nirbhan on whose site incident of firing dated 1/10/2011 was taken place
in which his Estate agent Sohel was injured, further investigation
connecting role of Ejaj Lakadawala in the firing incident on the basis of
SIM cards used by arrested accused nos. 1 to 3 prior, during and after the
incident collected call details, CDR and print out from Airtel, Aircel,
Vodafone, Idea, Reliance, Uninor, and Loop Companies and subscribers in
whose name seized mobiles were registered in the aforesaid companies.
9. During further investigation with the help of Executive Magistrate
(Tahasildar), Test Identification Parade(T.I. Parade) about identification of
accused no. 1 to 3 was conducted in which they were identified by injured
witness namely Sohel Khan who had injured in firing incident and eye
witness Sohel. And also four witnesses in whose presence fire arms and
articles were seized on 14/10/2011. During interrogation with accused
no.2 and 3, they showed willingness to give confession before DCP as per
section 18 of MCOC Act. Their confessional statements came to be
recorded and statement under uection 164 of Cr.P.C. of witness Mohd.
Akram Nirbhan and Jignesh Pandya also came to be recorded by producing
them before Metropolitan Magistrate.
10. After collecting material in respect of both incident and on the basis
of information given by Mohd. Akram Nirbhan and documentary evidence
collected from Nodal officer as stated above, police came to be conclusion
that accused nos. 1 to 5 are active members of Organized Crime Syndicate
...7/
Judgment 7 MCOC Pl. Case No.2/12.
headed by Ejaj Lakadawala and as per his say and direction, they were
continuing unlawful activities like threatening and demanding ransom
amount from builders. And on the say of their leader of Syndicate Ejaj
Lakadawala accused nos. 2 and 3 committed incident of firing dated
1/10/2011. Accused nos.1 to 3 were found with firm arms and live
cartridges as per trap dated 14/10/2011. And all such activities committed
by accused nos. 1 to 5 are under head of Ejaj Lakadawala who had
threaten Mohd. Akram Nirbhan by putting him in fear of death to extort
money from him. Police while completing next part of investigation
collected copies of chargesheet in which Ejaj Lakadawala being leader of
Crime Syndicate was involved in similar nature of offences prior to present
incident and he alongwith others are facing two criminal cases filed
against him and others at A.C.M.M. Court No. 37 Killa Court, Mumbai and
before designated MCOC Court for offences under section 387, r/w 34 @
offences, under Arms and MCOC Act.
11. In due course all investigation papers were submitted to Joint
Commissioner of Police initially for grant of approval for invoking
provision of MCOC Act as per section 23(1)(a) MCOC Act in C.R.No.
86/2011 and having given approval and completing investigation under
MCOC Act sanction under section 23(2) of the Act to prosecute arrested
accused nos.1 to 5 was obtained from Commissioner of Police Mumbai.
Ultimately on the basis of material collected in investigation viz.
confessional statement of accused nos. 2 and 3, seized fire arms and
articles from accused nos.1 to 3, call details obtained from Nodal officers,
...8/
Judgment 8 MCOC Pl. Case No.2/12.
statement of two witnesses recorded under uection 164 of Cr.P.C. and after
getting sanction from Commissioner of Police, accused nos. 1 to 5
alongwith absconding accused no.1 to 3 came to be chargesheeted before
this Court for trial.
12. In due course of trial, my Learned Predecessor framed charge Ex.31
against accused nos. 1 to 5 on 30/11/2013 for above mentioned offences
under IPC, Arms Act, Bombay Police Act and MCOC Act. As per plea
recorded at Ex.32 to 36, accused pleaded not guilty and claimed to be
tried. Defence of accused is that of total denial and false implication.
13. To prove allegations levelled against accused in respect of two
incident dated 1/10/2011 and 14/10/2011 together with conspiracy for
commission of offence, prosecution examined in all 36 witnesses. To have
proper discussion of evidence and marshaling of evidence, it is divided into
VI different groups as per details in reasoning.
14. Incriminating material came on record in the evidence of 36
prosecution witnesses explained to accused while recording their
statements under section 313 of Cr.P.C. vide Ex.32 to 36. They replied to
all questions put to them as per their defence of false implication. None of
the accused examined himself nor lead any defence evidence.
15. As such on above stated facts, following points arise for my
determination and I have given my findings to each of them for below
...9/
Judgment 9 MCOC Pl. Case No.2/12.
mentioned reasons.
POINTS FINDINGS
1. Does prosecution prove that accused nos. 1 to 5 alongwith wanted accused nos. 1 to 3 before 1st of October, 2011 at Brihan Mumbai agreed to do illegal acts to wit to commit extortion of Rupees Three Crores by extending threats to kill Mohammad Akram Nirbhan a builder by profession and in pursuance of the aforesaid agreement on or about 1/10/2011 at about 14.45 hrs. at the construction site office of Nirbhan Construction Company, situated at Shaikh Burhan Qamruddin Street (Teli Mohhala), Nagpada, Mumbai 400 008, and accused no.2 drove red coloured motorcycle bearing registration No.MH04EN4263 and accused no.3 opened fire with a pistol towards Sohail @ Soney Abdul Majid Khan, working as a commission agent of Mohammad Akram Nirbhan and thereby committed an offence punishable under section 120(B) r/w 387 of Indian Penal Code.
Proved against A1, A2 & A3 u/sec. 120(B)
r/w 387 of IPC.
2. Does the prosecution further prove that accused nos. 1 to 5 and wanted accused nos. 1 to 3 in furtherance of their common intention and pursuant to the criminal conspiracy committed criminal intimidation by threatening to kill Mohammad Akram Nirbha, a builder in order to commit extortion of Rupees Three Crores and thereby committed the offence punishable under section 506 PartII r/w sec. 387, 34 of Indian Penal Code.
Proved against A3
u/sec. 506(II)r/w 387,34 of
IPC.
...10/
Judgment 10 MCOC Pl. Case No.2/12.
3. Does the prosecution further prove that accused nos. 2 and 3 in pursuance to the aforesaid criminal conspiracy and in furtherance of their common intention with all accused nos. 1 to 5 and wanted accused nos. 1 to 3 on 1st of October, 2011 at about 14.45 hrs. and accused no.3 opened fire towards Sohail @ Sony Abdul Majid Khan, commission agent of Mohammad Akram Nirbhan, with such an intention and knowledge and under such circumstances that if by that act you had caused and death of aforesaid Sohail @ Sony Abdul Majid Khan, you would have been guilty of murder and in that you accused caused hurt to the aforesaid Sohail @ Sony Abdul Majid Khan and thereby committed an offence punishable under section 307 r/w 120(B) or in the alternative r/w.34 of Indian Penal Code.
Proved against A2 & A3
u/sec. 307 r/w 120(B) of IPC.
4. Does the prosecution prove that accused no.3 on the same date, time and place in pursuance of the aforesaid criminal conspiracy and in furtherance of his common intention with rest of the accused and the wanted accused did possess a fire arm and ammunition to wit a countrymade pistol and cartridges without licence as required under the Arms Act and the rules made there under and thereby committed an offence punishable under section 3 r/w 25 of the Arms Act, r/w 120(B) of Indian Penal Code. Proved
...11/
Judgment 11 MCOC Pl. Case No.2/12.
5. Does the prosecution prove that on the same time and place you accused no.2 and 3 did posses the aforesaid countrymade pistol and ammunitions and thereby contravened Order No.CP/XI(6)/JVP/L, W/702(9)2011 dated 19/9/2011 issued by the Dy. Commissioner of Police (Operations) Mumbai in exercise office power u/s.37 of the Bombay Police Act and thereby committed an offence punishable under section 135 of the Bombay Police Act. Proved
6. Does the prosecution prove that accused nos. 1 to 5 alongwith wanted accused nos. 1 to 3 sometime before 1st October, 2011 at Greater Mumbai, being the member of an organized crime syndicate headed by wanted accused no.1 Ejaj Lakadawala @ Ajju conspired to continue unlawful activities and to commit organized crime to wit to threaten Mohammad Akram Nirbhan a builder by profession that he would be killed if a demand of extortion of Rupees Three Crores is not fulfilled and made an attempt on the life of Sohail Khan working as his commission agent with an object of gaining pecuniary advantage or to get undue economic benefit and thereby committed an offence punishable under section 3(1)(ii) of the Maharashtra Control of Organised Crime Act, 1999.
7. Does the prosecution prove that accused nos. 1 to 5 alongwith wanted accused nos. 1 to 3 conspired and/or attempted to commit and/or abetted an organized crime to wit
Proved against A1, A2 & A3
...12/
Judgment 12 MCOC Pl. Case No.2/12.
extended threats to kill Mohammad Akram Nirban for extortion of Rupees Three Crores and thereby committed an offence punishable under section 3(2) of the Maharashtra Control of Organised Crime Act, 1999.
Proved against A1, A2 & A3
8. Does the prosecution proves that accused nos. 1 to 5 and wanted accused nos. 1 to 3 are members of an organized crime syndicate of which wanted accused no.1 Ejaj Lakadawala @ Ajju is the head and thereby committed an offence punishable under section 3(4) of the Maharashtra Control of Organised Crime Act,1999.
Proved against A1, A2 & A3
REASONS
Group I
Incident dated 1/10/2011
To prove incident dated 1/10/2011 prosecution examined in all
eight witnesses
PW1 (Name hidden) on seizure of clothes of injured Panchanama Ex.44
PW2 Sohel Abdul Majid Khan,injured and on FIR Ex.46.
PW14 Abdul Majid on spot cum seizure panchanama Ex.129.
PW21 Ahmed Ansari on seizure of motorbike and key Ex.162.
PW23 Dr. Vatsala Katke on medical certificate Ex.167 & 168.
PW24 Ahmad Kazi, Photographer, of spot of (Article 30).
PW27 Sohel Dalvi, eyewitness to the incident.
PW34 ASI, Kailas Bondre, on FIR Ex.46 and 46A.
...13/
Judgment 13 MCOC Pl. Case No.2/12.
Group II
Incident dated 14/10/2011.
To prove incident prosecution Examined 3 witnesses
PW11 Sameer Qureshi, Panch witness to panchanama Ex.112,
PW28 API Vinod Tawade member of team leading to trap of A1 to 3.
PW35 PI Dhanawade, incharge of leading team of trap.
Group – III
Test Identification Parade
To prove T.I. Parade Ex.153 prosecution examined 3 witnesses
PW2 Sohel Khan, Complainant.
PW27 Sohel Dalvi, eyewitness.
PW19 Bhagwan Arjun, Nayab Tahsildar.
Group IV
On confession of A 2 Ex.184 & 186, prosecution examined following three
witness
PW28 API Vinod Tawade
PW29 DCP, Keshav Patil.
PW32 PSI Anant Jadhav.
On confession of A3 Ex.137 and 138, prosecution examined following
three witnesses
PW16 DCP Kishor Jadhav,
PW25 PSI Subhana Naik. attached to Crime Branch UnitIII.
PW26 PI Nitin Potdar attached to A.T.S.
...14/
Judgment 14 MCOC Pl. Case No.2/12.
PW12 Jignesh Pandya is also on point of eyewitness of mobile
number of accused no.1 who has also given statement u/sec. 164of Cr.P.C.
Ex.125 before Magistrate. PW15 (Name hidden) on phone call and threat
byhead of CrimeSyndicate Ejaj Lakadawala. He has also given statement
u/sec.164 of Cr.P.C. before Magistrate.
Group – V
Evidence about Mobile & CDR print out
PW4 (Name hidden) on memorandum and seizure given by A3, Ex.52.
PW11 Sameer Qureshi, on seizure of mobile from A1& A3 on the date
of incident dated 14/10/2011.
Nodal Officers examined from PW5 to PW10 and 31of companies
namely India Cellular, Aircel Ltd, Loop, Vodafone, Reliance, Bharti
Airtel Ltd. and Uninor.
Group – VI
Evidence of investigating officers
PW20 DCP Ms.Sharada Raul, on sanctioned order of A3 Ex.158 of fire
arms.
PW30 Arup Patnaik, Commissioner of Police on sanctioned order Ex.193.
PW35 PI Dhanawade (I.O. Ist)
PW36 ACP Vatkar. (I.O. IInd)
...15/
Judgment 15 MCOC Pl. Case No.2/12.
GroupI
Incident dated 1/10/2011.
16. To prove the incident, there is oral evidence of PW2 injured Sohel
Khan and independent witness PW27 Sohel Dalvi. Injured Sohel Khan in
his testimony in chief examination gave evidence before the Court that he
was working as Estate agent with proprietor of Nirbhan Construction
(PW15 Akram Nirbhan) and on the day of incident had been to site of
Nirbhan Construction which is at Shaikh Burhan Kamruddin Street at
about 12.30 p.m.. Initially there was talk between him and father of
Akram Nirbhan in the passage of office. At about 2.30 p.m. by seeing their
client Sagir Ahmed he came out of the office and at the relevant time was
discussing about cheque due from said Sagir to Nirbhan Construction. He
within a 23 minutes of start of their discussion noticed two persons on red
colour motorbike coming towards him from Moulana Shoukat Ali Road.
Both were staring at him. Pillion rider whipped out a firearm (Pistol) and
fired three rounds towards him. He saved from two rounds. However, one
bullet hit as his left leg causing bleeding injury. He immediately raised
shout calling public but by that time both persons by pointing out weapon
towards public ran away from spot. While adducing evidence, he
identified accused Prashant Rao(A3) who was pillion rider on motorbike
and fired three bullet rounds towards him and accused Nilesh (A2) who
was ridding bike at the time of incident.
17. Aforesaid oral evidence adduced by injured Sohel Khan is mostly
challenged by A3. He admitted in cross examination that going out of the
...16/
Judgment 16 MCOC Pl. Case No.2/12.
office to meet Sagir was spontaneous action on his part. There was no
fixed time to go for work every day and he had no idea as to whom he was
going to meet on that day at the office of Nirbhan Construction. It is his
version that he noticed motorbike in the midst of his conversation with
Sagir and at that time he was near side across the road. According to him,
entire incident took place within ten seconds and first bullet was fired
upon him within a two second of his noticing accused. He also admitted
that assailants were at his right hand side when first bullet was fired and
bike passed in front of him when it was at the distance of ten feet. He
also admitted that assailant was pointing his weapon towards his chest
while firing three shots.
18. On the basis of aforesaid testimony of injured, it is say of Learned
Spl. P.P. that so far as testimony of injured Sohel Khan is concerned, it is
supported to the prosecution to prove his FIR Ex.46 which is within a
period of one hour as FIR is registered at 15.15 p.m. According to him,
whatsoever material brought on record by defence in his cross examination
is nothing but elaborated piece of fact of incident of firing i.e. coming out
of the office by noticing Sagir. As per his submission such admission in
cross examination is spontaneous and most natural one. According to
prosecution, defence also brought on record one more admission from his
testimony that in amidst of conversation with Sagir injured noticed
motorbike. Learned Advocate for A3 on the basis of certain elaborated
answer brought on record about actual incident in cross examination
submitted that ankle injury is absolutely not possible. To appreciate such
...17/
Judgment 17 MCOC Pl. Case No.2/12.
point of argument about testimony of injured, it is also necessary to see
what is evidence of eyewitness PW27.
19. According to PW27 Sohel Dalvi, on the day of incident, he was
standing in front of Doctor's clinic where he was working at that time and
time was about 2.30. p.m. He saw one motorbike of red colour having one
pillion rider. Nirbhan Construction office is just in front of his clinic.
Injured Sohel Khan resides at adjacent galli of said dispensary. Therefore
he knows him and also that he was working with Nirbhan Builder. As per
his version in chief examination, said motorbike just stopped by side where
he was standing and person who was pillion rider took out pistol and fired
it at Sohel Khan who received one bullet on his left leg feet. His testimony
is challenged by A3 by giving suggestion that entire incident took place
within 23 minutes and he has seen injury sustained to Sohel Khan which
was on toe of left leg. It is also his version that assailant was in front of
injured. To the specific suggestion as to whether assailant was trying to kill
the injured, his answer was that there was no intention of assailant to kill
him. In rest of cross examination, defence has brought on record situation
of office of Nirbhan Construction which according to him just exact
opposite to clinic and he has seen the incident which occurred just in front
of Nirbhan Construction site office which is at 15 feet distance from his
clinic.
20. As both A2 and A3 alleged author of incident dated 1/10/2011
were unknown to PW27. As per his statement U/sec. 161 of Cr.P.C.,
...18/
Judgment 18 MCOC Pl. Case No.2/12.
prosecution led evidence about description of both A2 and A3 for purpose
of identification and whatsoever description stated by him in statement
U/sec. 161 of Cr.P.C. is deposed by him in chief examination. So far as
other part of identification of A2 and A3 by him on the basis of T.I.
Parade held in Aurther Road Jail and before Court he identified both A2
and A3 as bike driver and pillion rider and specific role of A3 in firing
incident. As he has identified motorbike article28 used in incident by A2
and A3, he was cross examined by defence specifically A3 by bringing on
record omission i.e. not stating description of motorbike and it's number in
statement U/sec. 161 of Cr.P.C. There is also substantial cross examination
about necessity of keeping vehicle number involved in such type of
incident in the mind and memory and supplying it to police immediately
and omission on his part by not giving number of motorbike while
statement U/sec. 161 of Cr.P.C. and giving it to police in supplementary
statement dated 14/12/2011. When evidence of eyewitness was silent
about number of motorbike, defence in cross examination brought on
record material to the effect that when he gave statement to the police, he
was knowing that said motorbike was seen by him on the day of incident.
Not only that by giving specific suggestion, defence has brought on record
motorbike number MH04EN4263 used in incident and stated by him in
cross examination. This material evidence of injured Sohel Khan and
eyewitness Sohel Dalvi needs to be appreciated with other part of their
evidence which is in nature of seizure of clothes of injured, evidence about
injuries sustained to Sohel Khan and corresponding medical evidence
available on record.
...19/
Judgment 19 MCOC Pl. Case No.2/12.
21. It is say of injured Sohel Khan in cross examination that assailant
was on right hand side when first bullet was fired. When first bullet was
fired he immediately took action to save himself. Entire incident took
place within ten seconds. He did not go to duck walk position after first
shot. It is also his version that he was standing there on spot facing
towards office of Nirbhan Construction and motorbike did not stop, but
was moving in very slow speed when firing incident took place. It is also
his version in cross examination that when motorbike passed in front of
him, there was distance of about ten feet in between him and motorbike.
He admitted suggestion of defence that assailants by point outing weapon
towards his chest fired three shots and he received one bullet on his left
leg.
22. PW27 eyewitness Sohel Dalvi deposed that he was standing on the
spot facing towards Nirbhan Construction and firing took place two times
from motorbike which came on spot from his left side having two persons
on it and in said firing, injured Sohel Khan received bullet at his left leg
feet. Defence cross examined him on situation of spot i.e. site of Nirbhan
Construction and its office from his dispensary in front of which he was
standing. According to him, incident took place at distance of five feet
from site of office of Nirbhan Construction and his dispensary is at distance
of fifteen feet from site office of Nirbhan Construction. In his further
evidence in cross examination, it is his version that entire incident took
place within 23 minutes and he had seen injury sustained to injured.
When it was a simple version of injured PW2 and this eyewitness PW27
...20/
Judgment 20 MCOC Pl. Case No.2/12.
that bullet injury was received on left leg feet of PW2, in para no.13 of
cross examination of this PW27, defence has brought on record knowledge
of this witness about understanding of thigh, leg feet and toe. It is because
in his statement U/sec. 161 of Cr.P.C. before Police, he had stated that
injured has received bullet injury above feet of left leg by naming said part
of leg as toe. He was also cross examined by defence about his knowledge
in respect of pistol and revolver, to the same he sated that he has never
hold revolver or pistol and can not tell how pistol looks like. However, it is
his say that he can identify weapon like revolver or pistol as per his
knowledge from Movie and New paper.
23. Aforesaid evidence brought on record in testimony of injured and
eyewitness Sohel Dalvi is tried to be contradicted by defence on the basis
of medical evidence which has come on record from mouth of Dr.
Ms.Vatsala Katke(PW23). As per her testimony before Court on the basis
of medical certificate Ex.168 which is issued on the basis of MLC registered
Ex.167, injury sustained to PW2 was bullet injury on left ankle near
medial malleolus. During the course of argument, Learned Advocate for
A3 on the basis of above circumstances of spot brought on record in the
evidence of PW2 and 27 and specifically that injured and assailants were
facing each other assailants were on motorbike and injured was standing
and assailants were aiming towards chest of injured coming from his right
side, possibility of causing injury at left leg toe is not possible. It is also
because PW23 in cross examination admitted that injury mentioned in
certificate Ex.168 is not possible, if assailant is facing towards injured. It
...21/
Judgment 21 MCOC Pl. Case No.2/12.
is true that Doctor who is expert for giving possibility of sustaining injury
on particular part of injured from specific direction of the side of assailants
but that being mere opinion of expert same needs to be appreciated with
other material evidence and in the present case, evidence of injured and
eyewitness PW27 Sohel Dalvi. Oral evidence of injured and eyewitness in
respect of incident can not be brushed aside on the basis of possibility of
sustaining injury or merely on count of surmise and on basis of certain
admission given by the witnesses. It is also because other corroborative
evidence also needs to be appreciated having connection with the incident
in question. And therefore evidence available on record in respect of
seizure of clothes of injured, bullet and cartridges seized from spot of
incident and corresponding evidence of FSL and opinion about seized
articles given by Analyst expert needs to be appreciated.
24. As per evidence of panch of seizure panchanama of shirt and jeans
pant wore by injured (PW1) Ex.44 in his presence articleA & B are seized.
Jeans pant was of black colour and left part of leg of jeans pant having two
hole with blood stains. His testimony is not challenged by any of the
accused. Jeans pant article1B as per evidence of PW34 was produced
before him by PC – 28207 Nilesh Salunke and those clothes were seized as
per panchanama Ex.44 by him i.e. PW1. Muddemal register entry is taken
as per no.112/11 vide Ex.203 (extract of muddemal register). Though
PW34 was cross examined on other aspect of his evidence, so far as
seizure of clothes as per panchanama Ex.44 by him and corresponding
entry in muddemal register vide Ex.203 giving corroboration to evidence
...22/
Judgment 22 MCOC Pl. Case No.2/12.
of PW1 went unchallenged.
25. During course of argument, Learned Advocate for A3 by drawing
my attention towards folded lower portion of jeans pant article1B and
hole of bullet to articleB vehemently argued about nonpossibility of such
nature of injury and hole to the folded portion of jeans pant and so also
blood stain of inner part of jeans pant of left leg and also right leg of jeans
pant. While appreciating submission made by Learned Advocate for A3
about hole sustained to the jeans pant and blood stains on both legs,
material came on record in para no.11 of cross examination needs to be
appreciated rather than going on hypothetical and surmise. It is version to
PW2 in para no.11 that he is not in habit of wearing torn clothes so also
wearing a pant folding it. He admitted that article1B was not torn when
it was taken away by police, as it seems now. When his attention was
brought to torn position of jeans pant article1B, he gave specific answer
that it was not so folded when it was given to police. Ahead he deposed
that he himself had folded bottom of jeans pant without removing it and
thereafter surgical operation was performed in the Hospital. It was folded
in the Hospital before the operation. It is also his say that he had folded
said portion in order to avoid it from getting spoiled with blood stain. By
giving suggestion to him by showing blood stains on both right and left
portion of article1B, it has brought on record by defence that blood stains
are visible after second fold and blood stains are also seen inside the jeans
pant on right leg portion.
...23/
Judgment 23 MCOC Pl. Case No.2/12.
26. On the basis of such material brought on record from mouth of
injured Sohel, it is say of Learned Advocate for A3 that when bullet injury
was sustained only on the ankle of left leg and when article1B was
seized, it was not folded one and when it was produced before the Court, it
is folded one having blood stains on both legs of jeans pant, possibility of
tampering can not be ruled out. While appreciating above stated material
came on record in cross examination of PW2 in the context in which
argument is advanced by Learned Advocate for A3, one important thing
can not be forgotten that as per panchanama Ex.44, Jeans pant was
seized. It was seized and forwarded to FSL for examining blood stains as
well as hole sustained to article1B as to whether it was due to bullet
firing, together with bullet and pistols seized from A1,A2 and A3. And
therefore I am of view that further connecting evidence while appreciating
submissions of Learned Advocate of A3 also needs to be considered and it
is in the nature of report of Chemical Analysis (FSL) which is on record as
per Ex.231 through forwarding letter Ex.225 which are produced on
record by prosecution through evidence of PW36.
27. Before going to discuss documentary evidence in respect of Scientific
Expert namely FSL connecting evidence in the nature of spot panchanama
also needs to be looked into. From the mouth of PW14 prosecution placed
on record circumstances of spot vide Ex.129. As per testimony of PW14,
while adducing spot panchanama (of incident dated 1/10/2011) police
seized one live cartridge (bullet) and 2 empty cartridges marked as
article3,4 and 5. It is also his version that blood stained soil was collected
...24/
Judgment 24 MCOC Pl. Case No.2/12.
and all articles were seized and sealed on the spot including left foot
chappal. Spot panchanama Ex.129 is also having sketch showing actual
place where all four articles were lying on spot. Panchanama shows that
photographs of spot were also taken and to place on record. Prosecution
examined photographer PW24 who has drawn five photographs as per
article30. As per testimony of photographer, those were drawn through
digital camera. He identified photographs article30 which were handed
over to PSI Jagdale. There is no material challenge to oral evidence of spot
pancha PW14 and photographer PW24. On perusal of five photographs
article30 in reference to sketch which is attached with Ex.129, it is seen
that on spot left foot chappal is seen alongwith three cartridges and one
photograph of blood stain on ground. When there is no material challenge
to oral testimony of PW1, seizure of clothes of injured, PW14 panch of
spot panchanama in whose presence aforesaid live cartridge and two
empty cartridges together with chappal and blood stain soil were seized
and photographs drawn by photographer including evidence of
photographer to prove circumstances on spot, I am of view that direct
evidence is supported by circumstances on spot and in nature of
panchanama and articles seized gives corroboration to oral and direct
evidence of injured PW2, eyewitness PW27 and to some extent Dr. PW23,
so far as proof of incident dated 1/10/2011 is concerned.
28. Now to connect live and empty cartridges seized from spot of
incident through blood stain jeans pant article1B to the injured,
according to prosecution, there is seizure of fire arm from accused nos.1 to
...25/
Judgment 25 MCOC Pl. Case No.2/12.
3 as per trap of second incident dated 14/10/2011. So even before going
to scientific expert report (FSL) Ex.231, it is necessary to see evidence of
PW11 from whom panchanama Ex.112 is proved by prosecution. Baring
evidence of panch witness PW11 so far as second incident dated
14/10/2011, there is evidence of PW28 and first I.O. PW35 who were
heading the trap which was arranged on 14/10/2011. While making
discussion about incident dated 1/10/2011 limited evidence adduced by
PW11 needs to be considered which directly touches to seizure of fire
arms seized from A2 and A3. On perusal of testimony of PW11 which is
in consonance with contents of Ex.112 personal search of all three accused
in presence of PW11, it is sufficient to say that as per panchanama Ex.112
and oral testimony of PW11 before Court from A2 Nilesh, baring other
articles Pistol article 7 and two cartridges came to be seized while as from
A3 Prashant Rao Pistol article9 and three cartridges were seized. So far
as seizure of aforesaid articles from A2 and A3, his testimony is
challenged by accused by giving suggestion that suspects were standing in
one line and officer informed him that their search was to be effected. So
also that cartridges which are present before the Court for purpose of
identification were having same condition when they were seized at the
time of panchanama. He admitted that no receipt was given to accused
when articles were seized from them.
29. On behalf of both accused nos. 2 and 3, certain suggestions were
given to him about condition of articles when those were shown to him
before the Court and condition of those articles when those were seized as
...26/
Judgment 26 MCOC Pl. Case No.2/12.
there was time gap in between two on account of sending articles for
Chemical Analysis. Defence also tried to bring on record material like
polythene in which articles are produced before the Court as at the time of
seizure those were kept in cardboard before sealing it. Admittedly, as per
story of prosecution informant had given secret information to police about
passing of accused from spot where they were trapped, but said informant
is not examined. However, as per argument advanced by Spl. P.P. in
support of independent witness PW11, there is testimony of PW28 who
was accompanied with head of trap namely first IO PW35 Mr. Dhanawade.
So after going through corresponding oral evidence adduced by both
PW28 and 35 in reference to testimony of pancha witness PW11 so far as
seizure of fire arm and cartridges there is sufficient material placed on
record by prosecution to have some basis to connect said seizure to
incident dated 1/10/2011, of course with the evidence of Scientific Expert
in the nature of FSL report Ex.231.
30. Though Learned Advocate for A1 to A3 during the course of
argument submitted that prosecution simply placed on record FSL report
Ex.231 but failed to establish link right from forwarding seized articles
from Police Station to FSL and viceversa. However, such is not correct
position. As per material available on record, PW35 who is first IO gave
evidence about arranging trap on accused dated 14/10/2011, seizure of
fire arm and ammunition shown in panchanama Ex.112 and registration of
LAC No.2220/2011 at Nagpada Police Station which is subsequently
transferred to DCB CID as LAC no.35/11 regarding seizure of all articles at
...27/
Judgment 27 MCOC Pl. Case No.2/12.
the time of trap. There is specific evidence of PW35 which is corroborated
by PW11 independent panch witness. As per evidence of PW36, aforesaid
seized fire arm and ammunition were forwarded to FSL under his
signature as per forwarding letter Ex.225 and in due course, they received
FSL report which is filed on record with chargesheet from page 103 to 117
which is at Ex.231. So on the basis of aforesaid evidence brought on
record by prosecution right from seizure of fire arm and ammunition from
accused nos. 1 to 3 as per panchanama Ex.112 to prove said seizure and
forwarding articles to FSL till receiving FSL report Ex.231, there is oral
evidence to PW11, PW35 and PW36. And such sort of oral and
documentary evidence in view of provision of section 293 of Cr.P.C. (FSL
report Ex.231) may be used as evidence in the present case without asking
further proof from prosecution.
31. As per Ex.225 forwarding letter to FSL dated 15/10/2011 seized
articles as per panchanama Ex.44 were submitted to Forensic Lab and as
per Ex.232 dated 18/10/2011, arms and ammunition which are seized as
per panchanama Ex.112 were forwarded to Scientific Expert for
examination. Ex.231 is the report of FSL about articles of both incident
forwarded to the Forensic Lab for examination. It is collectively as per
pages 103 to 117 of Ex.231. Result of Analysis of jeans pant article 4A
shows that it is stained with blood on back side of human origin having
blood group inconclusive (Page 107). As per Page 117, on examination of
Ex.1, one copper jacketed bullet having brushing marks (of injured Sohel)
is fired from 7.65 mm pistol Ex.4 which is article9 as per panchanama Ex.
...28/
Judgment 28 MCOC Pl. Case No.2/12.
112 (Seized from A3). So far as incident dated 1/10/2011, this much
result of Analysis of corresponding Pistol seized from A3, bullet which was
taken out from left leg ankle of injured Sohel is sufficient to prove
connecting link of incident right from firing till FSL report, so far as
incident dated 1/10/2011 baring other findings of analysis which is having
connection with second incident dated 14/10/2011.
32. Then comes next piece of evidence that is motorbike used by A2
and A3 during commission of firing incident. Admittedly, when injured
PW2 was examined by prosecution, motorbike article28 was not
produced before Court. It is first time produced during evidence of PW21.
As per evidence of PW21 panch of memorandum U/sec. 27 of evidence
Act and seizure of motorbike thereafter as per panchanama Ex.162, A2
Nilesh as per memorandum statement took him and police to Miraroad
and discovered red colour Pulsar Company bike which was concealed
under the building of Miraroad and it was seized under seizure
panchanama Ex.162. As per his testimony, after discovery of motorbike,
A2 Nilesh went to adjacent house and gave call to his brother who
thereafter came to Police and as per direction of A2 Nilesh, gave key of
motorbike (article27). Both article27 & 28 were identified by PW21
before Court.
33. Defence in his cross examination brought material to the effect that
he was not knowing the building where accused took them. Accused gave
name of said building. So far as memorandum statement given by
...29/
Judgment 29 MCOC Pl. Case No.2/12.
accused Ex.161, in cross examination he stated that A2 gave confession in
his presence to police which was reduced by police and thereafter he
signed before proceeding to Miraroad. So far as colour of motorbike
article28, he admitted that it is having red colour as well as black colour
and it is not only of red or black colour but combination of both, however
according to him motorbike seized is same. So far as seizure of key which
was produced by his brother, in cross examination he stated that person
from whom key was brought from ground floor having some office like
room and accused who led to said person did not talk with that person
from whom key was seized. In cross examination, it is his specific version
that there is no identification mark on the key like his signature or label on
it. But he says that key article27 is the same key which was seized when
motorbike was discovered as per panchanama. It may be noted that
motorbike was produced before the Court after evidence of eyewitness
PW2. Neither prosecution nor defence recalled PW2 for purpose of
identification of motorbike article 28. However, PW27 who is eyewitness
identified motorbike article28, during his chief examination by saying that
it is the same motorbike which was used by A2 on that day. About
identification of motorbike, the same suggestion were given to him by
defence that motorbike before Court is of red colour and it can also be
called as red and black colour. In cross examination, defence himself
brought on record certain identification mark of motorbike that at backside
of motorbike there was identification like “07” written at mudguard of
backside.
...30/
Judgment 30 MCOC Pl. Case No.2/12.
34. He was substantially cross examined on behalf of A3 about number
of motorbike seen by him on the day of incident and according to him,
when he gave statement to the police that he had given number of
motorbike as MH 04 EN 4263. He was confronted with number of
motorbike mentioned in his supplementary statement which is KH 01 EN
4263. So far as production of motorbike (during evidence of PW21) at
belated stage, it is evidence of first IO PW35 that motorbike was kept in
dumping yard and as per letter issued by Sr.P.I. UnitIII dated 16/05/2012
filed on record with extract of station diary entry alongwith production of
motorbike before Court as per letter dated 17/07/2014 (Ex.216). PW35
was cross examined by defence about the variation of make of motorbike
which is mentioned in FIR i.e. Unicorn motorbike.
35. During the course of argument, Learned Advocate for A2 and A3
vehemently argued about description of motorbike given in FIR Ex.46 and
46A about make of motorbike having red colour only and contents of
seizure panchanama Ex.162 wherein description of motorbike is given that
red colour Bajaj Pulser having no.MH 04 EN 4263. In reference to above
discussed direct oral evidence of witnesses including delay of production of
motorbike before the Court again while appreciating this piece of evidence
i.e. motorbike and key seized by police during investigation and produced
before the Court through above referred prosecution witnesses, I am of the
view that this one piece of evidence can not be considered isolation. Of
course, to prove incident dated 1/10/2011, all above discussed evidence
which is in the nature of oral evidence and seizure of articles on account of
...31/
Judgment 31 MCOC Pl. Case No.2/12.
injured witness and eyewitness having corroboration through Scientific
evidence needs to be appreciated conjointly to give finding as to whether
prosecution proved incident dated 1/10/2011.
36. Even before appreciating above discussed different part of evidence,
again there remains evidence as to identification of A2 and A3 with their
specific role while committing incident dated 1/10/2011. There is direct
evidence of injured Sohel as well as eyewitness Sohel so far as role of both
in incident (PW2 and 27 respectively). They both in there direct evidence
while adducing before the Court identified A2 as driving motorbike at the
time of incident and A3 firing three bullets from Pistol. So far as presence
of injured Sohel on spot it is his testimony that he was working as Estate
Agent with Nirbhan Builder and on the day of incident by noticing Sagir,
he came out of the office and his coming out of the office is spontaneous
action on his part, his visit to the office was not for any specific purpose
and there was also no fixed time to attend the office every day. He had
also not informed anybody about his visit to said office on that day. On the
basis of such material came on record in cross examination, it is argued by
Learned Advocate for A3 that accused were not knowing about PW2's
presence in the office. He had no enmity with either accused or Ejaj
Lakadawala and therefore, there was absolutely no reason for accused to
fire PW2. It is also say of defence that when there was demand of
extortion amount from Akram Nirbhan (PW15) by Ejaj Lakadawala and
when his father was present on the site, firing would have been made by
targeting father of PW15.
...32/
Judgment 32 MCOC Pl. Case No.2/12.
37. While appreciating such submissions of defence, fact can not be over
looked that even as per material brought on record by defence in the
evidence of PW27 that there was no intention of killing of PW2, as bullet
was not fired on chest as both injured and assailants were facing each
other therefore from such material brought on record on behalf of defence
in the evidence of PW2 and PW27, one thing which is clearly seen that
while committing act of firing neither accused was aiming to any particular
person like Akram or his father as argued by defence. So in my view,
presence of PW2 injured on spot is very natural one and coming out of the
office by seeing Sagir is spontaneous and very natural.
38. On perusal of memorandum panchanama of T.I. Parade Ex.153, it is
seen that out of five witnesses except witness Salauddin who is not
identified by A2, all others have identified A2 and A3 during their
parade amongst five witnesses. As stated above, PW2 and PW27 are
examined by prosecution who identified both A2 and A3 with their
specific role in incident dated 1/10/2011. To corroborate evidence of PW2
and PW27 ,there is evidence of PW19 SEO who conducted T.I. Parade and
who is author of memorandum of panchanama Ex.153. Procedure
conducted by PW19 while performing T.I. Parade is challenged by A2 and
A3 on some material grounds. First amongst them is some portion
language written in Ex.153 viz “Amhi Panch ani Nayab Tahsildar” (Page 31
of memorandum) “Nayab Tahsildar Sahebani Suraksha Rakshkas