Sagar Sahani Murder Case Pune MCOCA Court Judgement

1 MCOCA Spl. Case No. 1/06.

Received on : 22/2/2006. Registered on : 22/2/2006.

Decided on : 7/12/2012. Duration : 6Yrs. 9Ms. 15Ds.

Exh.

IN THE SESSION COURT, PUNE, At : PUNE.(Before Shri. S.P.Tavade, Additional Sessions Judge, Special Court designated under Maharashtra Control of Organised

Crime Act, 1999, (MCOCA), Pune.)

MCOCA Special Case No. 1/2006.

State of Maharashtra, (Through Pimpri police station.) ..Complainant.

-Vs-

1] Mohammed Ali Abbas Ali, age 29 yrs., occu. Nil , R/o Sitaram Building, Block No. 4, Mumbai,

Originally from Kasargoud, Kerala,

2] Prasad Jagannath Shetty, Age 30 yrs., occu. Labour, R/o Samta Baroda, originally from Karnataka,

3] Jagmalsing Bhuraram Choudhary, age 34 yrs., occu – labour, R/o Near Gotri police station,

Gujrath, Originally from Rajasthan,

4] Chhotu @ Arvind Vitthalbhai Choudhary @ Patel,Age 34 yrs., occu. Driver,

R/o Samta Subhandpura,Baroda,

5] Bhikubhai Dayaram Thanki,Age 44 yrs., occu. business,

R/o Panchvati Society, Porbandar,Gujrath,


6] Jitendra Shantilal Modha,Age 37 yrs., occu. Hotel,

R/o 11/2, Vishal Chaitanya Society,Kasarwadi, Pune,Originally from Porbandar, Gujrat,

7] Samantbhai Boga Gadhvi @ Kariya,Age 40 yrs., occu. Driver,R/o Virabhai chawl, Porbandar,Gujrat,

8] Ajay Parvat Gadhvi,Age 33 yrs., occu. Labour,

R/o Moftiyapura, Behind Rajaram Petrol pump,Rajkot, Gujrat,

9] Dinesh Kasanbhai Tukadia,Age 32 yrs., occu. Rickshaw driver,

R/o Kamgar chowk, Porbandar,Gujrat,

10] Chhotu Ghisaiwala @ Ravitsing SavindersingBhadoriya @ Rajput,Age adult, occu. Labour,

R/o Umraithga, Dist. Agra,Uttar Pradesh,

11] Nitin Shantilal Modha, Age adult, occu. Nil,

R/o Kasarwadi, Pune. .. Accused.

Offence under Sections 120-B, 164-A, 344, 302,201, 392, 404 r/w 120-B of IPC and in the alternatively r/w S. 34 of IPC and under section 3(1)(i), 3(2) and 3(4) of Maharashtra Control of Organised Crime Act, 1999 (MCOCA).

Appearance :

Shri. V.M. Shah Spl. APP, for the State. Shri. D.K.Pawar, Advocate for accused No.1. Shri. V.B.Koshe, Advocate for accused Nos. 2,5,6,10 and 11. Shri. P.B. Birajdar, Advocate for accused No. 3.


Shri. Vipul Dushing, Advocate for accused No. 4. Shri. S.S. Bhagwat, Advocate for accused Nos. 7,8. Shri. R.L.Mate, Advocate for accused No. 9.

-J U D G M E N T- (Decided on December 7, 2012.)

1] The accused in dock, are facing trial for having committed

offences punishable under sections 120-B, 164-A, 344, 302,201, 392,

404 r/w 120-B of IPC and in the alternatively r/w S. 34 of IPC and

under section 3(1)(i), 3(2) and 3(4) of Maharashtra Control of Organised

Crime Act, 1999 (MCOCA).

2] The facts giving rise to the prosecution case, can be

summarized as under :

The complainant Satinder Sahani is resident of Pune. Since the

year 2000, he runs business of car décor, in the name and style as, 'A-

1 Motors and Car Decors' at Nasik approach road on old Pune-Mumbai

highway. Prior to that, he was engaged in sale of lotteries since

1992. The said business was carried in partnership with his cousin

Sudhir Sahani. The shop of Car Decors is situated two shops after

Hotel Prachi. The said Hotel was owned by deceased accused

Shantilal Modha. Shantilal Modha and his son Jitendra Modha (A-6)

were running the said hotel. The accused Nitin Modha (A-11) used to

visit said hotel. The brother-in-law of accused Jitendra Modha and

Nitin Modha, namely, Bhikubhai Thanki, (A-5), also used to visit hotel

Prachi.

3] Complainant Satinder Sahani was having two sons, including

deceased Sagar and a daughter. In the year 2005, they were taking

education. Deceased Sagar was assisting Complainant in his business


of car-decor. The Nephew of Complainant, viz. Sachin Anand also

used to help him in his business.

4] On 14/8/05, the Complainant had been to Mumbai for his

business and shop was opened by Sagar at 10 am. On that day, in

the evening Complainant returned back to Pune.. At about 8.30 pm,

Complainant called Sagar on his cell phone and told him to bring

food from Hotel Kundan, Pimpri, run by his relative. Complainant was

waiting for Sagar till 10 pm. He called Sagar on his cell phone, but it

was switched off. Thereafter he gave call to Hotel Kundan, where Amit

was present who disclosed him that Sagar had been to his hotel and

after collecting food packet left his hotel at about 9.15 pm. The

Complainant also inquired Amit about Hitesh Chaddha and came to

know that he was out of hotel. The Complainant requested him to ask

Hitesh to call him, after he returns. Thereafter within 10-15 minutes,

Complainant received call from Hitesh and on inquiring him about

Sagar, he told him that Sagar had collected food parcel and went away

about half an hour. The Complainant was waiting for Sagar till 11 pm.

As Sagar did not return home, the Complainant went to hotel Kundan

and made inquiry with Hitesh. The Complainant also came to know

that after collecting food packet, Sagar was to meet his friend. Hence,

Complainant made inquiry with friends of Sagar, viz. Jabbal, Rishi

Sahni, Sourabh, etc. on phone and came to know that Sagar did not

meet them. Then Complainant went to Bhel chowk, Nigdi,

Pradhikaran, where Sagar always used to chitchat with his friends, but

Sagar was not found. Thereafter he asked Sagar's friends and his

relatives to search for Santro car bearing No. MH-16/E-2104 of Sagar.

He also told them to make inquiry whether Sagar met with an

accident and to search him in hospitals in nearby area. But in spite of

his efforts, Sagar was not traced. Hence, he approached police and

informed about missing of Sagar.


5] At about 2.30-2.45 am on 15/8/05, Complainant received call

on his cell phone No. 9823055301. Caller was talking with him in Hindi

language, who told him that, “lfranj rsjk yMdk esjs ikl gS- nks djksMdk bartke

dy rd dj ys] vxj iksyhldks crkusdh dksf'k'k dh] rks rsjs yMdsdk gkr dkVds iklZy

cukds Hkst nwWaxk-” The Complainant asked his name, but he told that he

was calling from Karachi. The Complainant told him that he is not

millionaire, he has meager income. But, caller told him that “rw ns[k] dy

dk VkbZe rsjs ikl gS-” Thereafter call was disconnected. The Complainant

checked the incoming call number as 008821621364636.

6] In the morning at about 6 am, Complainant again called his

relatives and friends and formed their three groups to trace out Sagar

and sent them to search the car of Sagar at Katraj bypass highway,

Nasik highway and old Mumbai-Pune highway. At about 7 am, his

nephew Dhiraj informed him that Santro car of Sagar was found near

Somatane approach road on old Mumbai-Pune road. Accordingly, it was

informed to police. The Complainant realized that his son was

abducted for ransom and there would be danger to his life, hence

Complainant did not give complaint to police till 19/8/05. The

Complainant was receiving calls from abductor. The Complainant was

insisting the caller to have his conversation with his son Sagar, but he

was not allowed do so. Ultimately, on 19/8/05, complaint came to be

lodged. On the basis of of complaint, C.R. No. 562/05 came to be

registered and investigation of the crime was given to PI Rajendra

Joshi.

7] On 20/8/05, Complainant received call from abductor informing

that he had recorded conversation of Sagar and said Audio Cassette

was kept below the Eucalyptus tree inside Khandoba temple, Akurdi.


The Complainant asked his cousins Sudhir and Suresh to visit said

place. Said information was also given to police. Police took Sudhir

and Suresh to Khandoba temple. Sudhir went inside temple and found

cassette as per information and it was brought to police station. The

conversation was heard by Complainant and police. The Complainant

and his cousin Sudhir identified the voice of Sagar recorded in the

cassette. At that time, nephew of Complainant, Sachin told him that

Sagar was having two mobile phones viz. 9822796036 and

9822796147. It was also informed to him by Sachin that Sagar had

given his mobile number 9822796147 to his friend Taniya and she was

using the same. The said information was also given to police.

8] On 21/8/05, the Complainant had discussion with his family

members. As six days had passed, hence Complainant decided to

settle the matter with abductors by paying some amount to them.

Accordingly, Complainant told police and requested them not to

interfere in it for the sake of life of his son. Accordingly, his statement

was recorded. On 23/8/05, Complainant received call of abductor and

he negotiated with him and reduced ransom amount from two crores to

eighty lacs and then came down to fifty lacs and ultimately it was

settled to fifteen lacs. The abductor told Complainant that the amount

of Rs. 15 lacs should be paid at Karachi, through Havala. The

Complainant was not knowing as to how to pay the amount at

Karachi.

9] On 24/8/05 the abductor again called Complainant and told him

that he should contact Kadarbhai at Mumbai. Theabductor also gave

him cell phone number of Kadarbhai as 9819733195. Accordingly,

Complainant called Kadarbhai on the said number. The Complainant

received address of Kadarbhai as “Third floor, Sitaram building,

Crofferd Market, Mumbai.” On the same day, at about 2.30 pm,


Complainant along with Sudhir Sahani proceeded to Mumbai in car. At

about 5.30 pm, he reached third floor of Sitaram building. At the

entrance of the building, they inquired with one boy about Kadarbhai

and he was then asked to visit cabin situated on third floor.

Accordingly, they went inside the cabin where one person aged about

35 years was present. He asked Complainant the purpose of his visit.

The Complainant told him that he wanted to send Rs. 15 lacs to

Karachi. The Complainant also told said person that he had come

from Pune. The said person asked code number, but Complainant was

not knowing the code number. The Complainant told him that he was

to send money to Karachi, urgently. Said person asked the name to

whom money was to be sent. The Complainant disclosed that he

wanted to send money to Kadarbhai. The Complainant came to know

the name of said person as Shamsuddin, who was brother of

Kadarbhai. Thereafter Shamsuddin gave 4-5 calls to Kadarbhai.

Thereafter Complainant had a talk with Kadarbhai and he was asked

to pay amount to Shamsuddin. Accordingly, Complainant paid Rs. 15

lacs to Shamsuddin. It contains 18 bundles of currency notes of Rs.

500/- and 6 bundles of currency notes of Rs 1,000/-. Said

Shamsuddin called the boy who was sitting outside the cabin and said

boy and Shamsuddin counted the notes and accepted the same.

10] The Complainant demanded receipt of said amount from

Shamsuddin who gave him one chit wherein it was written as

“Syam”, 15/= O.K. 24.08. Thereafter Complainant and his cousin

returned to Pune. On the way, Complainant received call from

abductor who told him that he would get money on next day, so, Sagar

would be released on 25/8/05. The Complainant protested said act of

abductor. In the evening of 25/8/05,abductor again called Complainant

and told that he would get amount at Dubaii within half an hour and

thereafter Sagar would be released within three hours. However, even


after payment of ransom amount, Sagar did not return till 28/8/05.

11] On 26/8/05, at 5.30 pm, one Bhimjubhai Radiya, resident of

Mandava, Tal. Kaprala, Dist. Balsad, noticed one dead body near a

place called as Chondicha Chatta. It was in forest area. On seeing the

dead body he went to Dy. Sarpanch Kisan Konti, of village Mandvi and

informed him about it. Thereafter Dy. Sarpanch took him to house of

Sarpanch Bistubhai Ghotiya, but he was not present in house. Hence on

next day on 27/8/05 Bhimjubhai, Kisan and Bistubhai went to Kaprala

police station and informed police about dead body. Thereafter all of

them rushed to the spot along with police. After preparing inquest

panchanama of dead body, it was sent to the Hospital for postmortem

examination. Thereafter Bistubhai lodged FIR, on the basis of which,

CR No. 56/05 was registered at Kaprala police station. A wireless

message was sent to all police stations, about the said crime and

finding of dead body. Accordingly, Crime Branch, Pune, received

information about finding of dead body at Kaprala.

12] On 28/8/05, cousin of Complainant, Sudhir Sahani received

telephonic call from Crime Branch informing him that one dead body

was located in Gujrat. The description of said dead body was matching

with Sagar, hence, Sudhir decided to visit Gujrat. Accordingly, he went

there along with police. Sudhir went to one hospital at Valsad, where

one dead body was shown to him in mortuary. He identified it as of

Sagar. Sudhir brought dead body to Pune on 29/8/05. The Complainant

identified the said dead body as of Sagar and then his funeral had

taken place.

13] On 29/8/05, PSI Deore of Crime Branch, Pune, went to Mumbai

and took search of office of Shamsuddin and Mohammad Abbas and

seized some documents and arrested them.


14] The Kaprala police station dispatched seized clothes found on

the dead body as well as other articles found on the spot to Crime

Branch, Pune. The said clothes and articles were identified by

complainant and relative of deceased Sudhir Sahani. The seized clothes

and other articles of deceased were sent to C.A at Pune, for

examination. On 5/9/05, investigating officer of Baroda, received

secret information that one Sumo was used in the crime and it was

parked in front of house of Ajit Kahar. Hence, with the help of Gujrat

police, investigating officer rushed there. Mobile forensic lab and

finger-print experts were also informed by investigating officer. They

took samples of mud, blood etc. and articles found in the jeep were

also seized under panchanama. On 8/9/05, accused No. 2, Approver

Narayan Jameria and accused Nos. 3 and 4 came to be arrested with

the help of ATS, Ahmedabad.

15] Investigating officer also collected information of Prachi Hotel. He

also realized about involvement of accused No.1 in the crime. On

10/6/05 deceased accused Shantilal Modha and Jitendra Modha came

to be arrested.

16] On 11/9/05, investigating officer obtained specimen handwriting

of accused Shamsuddin Kunni under panchanama. He also collected

the sample of blood, saliva and hair of accused Nos. 2 to 5 and

Approver. During investigation, investigating officer also revealed that

number of seized Sumo car, bearing No. GJ-14/E-4992 was false and its

correct number was GJ-11/E-4992. Accordingly, investigating officer

called information from District Transport Office, Junagadh. It was

revealed that said Sumo jeep was owned by Bhikubhai Thanki (A 5).

The articles seized in the jeep were sent to C.A for examination. The

investigating officer also obtained blood samples of accused No. 2 and


Approver for DNA test. The investigating officer also found two toll

receipts in the Sumo jeep. He wrote a letter to Narmada Infrastructure

Constructions Enterprises and national highway authorities and sought

information about the same and also received it.

17] On 15/9/05, accused No. 2 Prasad Shetty made voluntary

statement which was recorded under panchanama. In pursuance of

the said statement he produced knife from the house of Raja Pilley

which was seized under panchanama.

18] Investigating officer wrote letter to UAE Exchange and Financial

Services Ltd., Baroda, Gujrat, and obtained information regarding

transfer of amount to accused No. 11 by absconding accused

Mohammad Ali. He received the doc Pooja ument produced by

accused No. 2 and 11 from UAE, which was seized under panchanama.

Investigating officer also seized the extract of register of hotels

Siddharth, Pooja, Deepmala, Divya Palace. Investigating officer also

recorded statements of employees of said hotels and other witnesses.

The investigating officer also obtained specimen handwriting and

signatures of accused Nos. 2 and 5 and Approver under panchanama

and sent it to Handwriting Expert along with disputed handwriting

seized from the hotels. Investigating officer also sought information

regarding call details made by Accused No. 4 to accused No. 11 while

returning from Pune and Baroda. On 26/9/05, accused No. 1 came to be

arrested. On the same day, investigating officer requested Tahsildar,

Haveli, Pune, to hold Test Identification Parade in respect of accused

Nos.2 to 6 and Approver. Investigating officer also received

investigation papers from ASI Kale, who carried out investigation at

Porbandar. He also seized Ciena car from Purushottam buva, who

was brother-in-law of accused No. 9.


19] On 30/9/05, investigating officer sent seized knife and clothes of

accused and other articles to C.A for examination. Thereafter from

time to time, investigating officer recorded statements of witnesses. On

6/10/05, he again wrote a letter to Tahsildar, Haveli, to hold Test

Identification Parade for rest of the accused persons. Investigating

officer also collected blood samples of Complainant and his wife for

DNA test of deceased Sagar.

20] During the course of investigation, investigating officer revealed

that absconding accused Sayyad Abed Husein Alibhai and Vickey @

Aftab Alam Mohammad Ayub, resident of Azamgad, were involved in

the crime. Both of them were having criminal record, hence, he

submitted proposal to Competent Authority for invoking the provisions

of MCOC Act. The Competent Authority granted permission to invoke

provisions of MCOC Act, and the investigation of the same was given

to ACP Sanjay Jadhav.

21] On 22/11/05, ACP Sanjay Jadhav received investigation of CR No.

267/05. He sought extension of time for carrying out investigation. He

sent letter to Addl. Commissioner, Pune, for recording confessional

statements of Approver and accused No. 3 and accordingly, said

statements were recorded by DCP Ghurye and Vitthal Jadhav,

respectively. He referred accused No. 4 to Addl. Commissioner of

Police for recording his confessional statement. Accordingly, it was

recorded by DCP Shri. A.D. Shinde. The voice samples of accused were

also taken and sent to Forensic Lab at Chandigad. He recorded

statement of PI Agashe, Ovhal, API Pilley and PSI Gadhve. He directed

PI Ovhal to investigate in respect of offence registered against

absconding accused Sayyad Abed Husein Alibhai and Vickey @ Aftab

Alam Mohammad Ayub, resident of Azamgad. Accordingly, PI Ovhal

submitted his report to PI Joshi. He submitted proposal seeking


sanction to prosecute accused under MCOCA. Accordingly, Competent

Authority accorded sanction to prosecute under MCOCA. On 24/2/06,

he referred accused No. 10 Ravit sing to Competent Authority for

recording his confessional statement, accordingly, DCP recorded his

confessional statement. He also requested Tahsildar to conduct Test

Identification Parade of accused No.10. After his arrest, he sought

permission to prosecute him under MCOCA, accordingly, he received

sanction. On 8/8/06 he requested Competent Authority to record

confessional statement of accused No. 11 and accordingly, it was

recorded by Competent Authority. He also requested Tahsildar to hold

Test Identification Parade in respect of accused No. 2 and accordingly, it

was held and report was submitted. Investigating officer also sought

sanction to prosecute accused No. 11 under MCOCA and it was

accorded. After receiving sanction for prosecution of accused under

MCOCA, he filed charge-sheet against accused before this Court.

22] As the offences under MCOC Act, are exclusively triable by the

Special Court under Maharashtra Control of Organised Crime Act,

1999, (MCOCA), Pune, hence, the case is committed to this Court, u/s

209 of Cr.P.C. During the course offending tempo trial, original

accused No.1 Shamsuddin was released on bail and he subsequently

absconded. Similarly, original accused No.4 Shantilal Modha passed

away. Accused Alibhai was arrested by Hyderabad police, hence, his

case is separated. Original accused No. 4 Narayan Jameria applied for

pardon. Accordingly, he was granted pardon u/s 301 of Cr.P.C.

23] On the appearance of accused, my learned predecessor has

framed charge against accused at Exh. 188. The accused pleaded

not guilty and claimed to be tried. The defence of accused is of total

denial. They also claimed that, deceased was indebted and he used to

receive threat calls prior to the incident. It is also their case that,


deceased might have killed by his creditors.

24] In order to prove the charge against accused, prosecution has

relied on the evidence of as many as 55 witnesses. In support of

their defence accused led evidence of 8 witnesses.

25] Upon recording the statement of accused, u/s 313 of Cr.P.C., I

heard learned Special APP Shri. Shah, on behalf of State and learned

advocate Shri. D.K.Pawar, Shri. Vidyadhar Koshe, Shri. Birajdar, Shri.

Dushing, Shri. Bhagwat and Shri. Mate, Advocate for accused,

respectively.

26] Having considered the evidence on record, and the defence of

accused, following points arise for my determination and I record my

findings thereon as under, for the reasons discussed below :

Points Findings.

1] Whether prosecution prove that death of deceased Sagar was homicidal ?

Yes.

2] Does prosecution prove that accused No. 2, 4, 5, 6, 10 and 11 along with deceased accused Shantilal Modha, Approver Narayan Jameria, and absconding accused Alibhai alias Sayyed Abed Husein, Aftab Alam Mohammad, Ayub Alkam alias Vickey alias Laddhan alias Gufran, agreed to do or caused to be done an illegal act to wit to abduct Sagar Satinder Sahani for ransom and to commit his murder ?

Yes.


3] Does prosecution prove on 14/8/2005 at about 8 pm, at Ambedkar chowk, Pimpri, accused No. 2, 4, 5, 6, 10 and 11 along with deceased accused Shantilal Modha, Approver Narayan Jameria, and absconding accused Alibhai alias Sayyed Abed Husein, Aftab Alam Mohammad, Ayub Alkam alias Vickey alias Laddhan alias Gufran, in pursuance of criminal conspiracy, abducted Sagar Satindar Sahani and kept him in detention, after such abduction threatened him to cause his death and by said conduct gave rise to reasonable apprehension of death and demanded Rs. Two crores from the complainant and after negotiations accepted Rs. 15 lacs from him ?

Yes.

4] In the alternatively, does prosecution further prove that on the aforesaid day, time and place, accused Nos. 2,4,5, 6, 10,11, along with deceased accused Shantilal Modha, and absconding accused, in furtherance of their common intention,abducted Sagar Satindar Sahani and kept him in detention, after such abduction threatened him to cause his death and by said conduct gave rise to reasonable apprehension of death and demanded Rs. Two crores from the complainant and after negotiations accepted Rs. 15 lacs from him ?

Does not survive.


5] Does prosecution further prove that accused Nos. 2 to 11 along with deceased accused and Approver, during 14/8/05 to 24/8/05 at various places in Gujrat State, and during the course of same transaction, abetted offence of wrongful confinement of abducted person Sagar Sahani ?

Partly yes against accused Nos. 2,3,5,6,10 and 11.

6] Does prosecution prove that, on 25/8/05 at about 7 pm, or thereabout, in the forest near Wapi, Gujrat, accused Nos. 2,10,11, in pursuance of criminal conspiracy, hatched between them, committed murder by intentionally and knowingly causing death of Sagar Sahani ?

Yes.

7] In alternatively, does prosecution prove that, on 25/8/05 at about 7 pm, or thereabout, in the forest near Wapi, Gujrat, accused Nos. 2,10,11, in furtherance of their common intention, committed murder by intentionally and knowingly causing death of Sagar Sahani ?

Does not survive.

8] Does prosecution prove that, on 25/8/05 at about 7 pm, or thereabout, in the forest near Wapi, Gujrat, accused Nos. 2,10,11, in pursuance of criminal conspiracy, accused knowing or having reasons to believe that, an offence of murder of Sagar Sahani, has been committed by them, caused disappearance of certain evidence namely, threw dead body of Sagar Sahani, in the forest, between Nasik-Wapi highway, with intention to screen themselves from the legal punishment ?

Yes.


9] In the alternatively whether prosecution proves that, on 25/8/05 at about 7 pm, or thereabout, accused Nos. 2,10,11 in furtherance of their common intention, they knowing or having reasons to believe that, an offence of murder of Sagar Sahani, has been committed by them, caused disappearance of certain evidence namely, threw dead body of Sagar Sahani, in the forest, between Nasik-Wapi highway, with intention to screen themselves from the legal punishment ? ?

Does not survive.

10] Does prosecution prove that accused No. 11, during the period of abduction of Sagar Sahani, committed robbery of cash amount of Rs. 24,000/- from the person of Sagar Sahani ?

Yes.

11] Does prosecution prove that on 25/8/2005, in forest on Wapi, Nasik highway, accused No. 11, dishonestly misappropriated immovable property, viz. Gold bracelet and gold chain from the dead body of deceased Sagar Sahani , who was in possession of said property, at the time of his death ?

Yes.


12] Does prosecution further proves that , accused Nos. 2,4,5,6, 9 to 11, along with deceased Shantilal, Approver Narayan and absconding accused, during the aforesaid period and places, and during the course of same transaction, being members, of organized crime syndicate, acted singally or jointly, either as a member or of a organized crime syndicate or on behalf of such syndicate, with use of violence, intimidation, or other unlawful means, committed abducting for ransom and murdered Sagar Sahani by his wrongful confinement for their pecuniary gain ?

No.

13] Does prosecution further proves that , accused Nos. 1 to 11, along with deceased Shantilal, Approver Narayan and absconding accused, during the aforesaid period and places, and during the course of same transaction, accused being members, of organized crime syndicate, acted singal-ly or jointly, either as a member or of a organized crime syndicate or on behalf of such syndicate, conspired and attempted to commit and advocated, abetted, and knowingly facilitated, commission of organized crime and an act preparatory to organized crime by abducting and committing murder of Sagar Sahani for ransom ?

Partly Yes, against accused Nos. 2,4,5,6,10 and 11.


14] Does prosecution further proves that , accused Nos. 1 to 11, along with deceased Shantilal, Approver Narayan and absconding accused, during the aforesaid period and places, and during the course of same transaction, in pursuance of criminal conspiracy, formed a group acting either singal-ly or collectively, as a syndicate or gang, indulging in activity of organized crime syndicate ?

Yes.

15] What order ? As per final order.

-REASONS-

27] It is the basic case of prosecution that deceased Sagar was

abducted in the night of 14/8/05 and then he was taken to different

places at Gujrat. An amount of Rs. 2 crores was demanded as ransom

from the complainant for release of Sagar. It is also the case of

prosecution that complainant paid Rs. 15 lacs towards ransom, but

Sagar was not released. Ultimately, he was killed in the night of

25/8/05 at village Kaprala, Gujrat. In view of the above story, it is

incumbent upon the prosecution to prove abducting of deceased Sagar

in the night of 14/8/05. To the prove the abducting, prosecution has

heavily relied on the evidence of complainant Satinder Sahani (PW 2),

his cousin Sudhir Sahani (PW 3) and Suresh Rupesha (PW 4), and

investigating officer Rajendra Joshi (PW 54).

28] The complainant Satindar Sahani deposes that he had two sons

and a daughter. In the year 2005, they were taking education. Sagar

was his elder son who was studying in Wadia College and he was also

assisting him in the business of car décor, which was run in the name


and style as 'A-1 Motors and Car Decors' at Nasik approach road on old

Pune-Mumbai highway. Prior to that, he was engaged in lottery

business. He was running the said business along with his cousin

Sudhir Sahani, in the name and style as “Sahani Lotteries”. He further

deposes that, deceased accused Shantilal Modha and his son Jitendra

Modha (A-6) were running Hotel in the name style as Prachi Hotel,

nearby his shop. The accused Nitin Modha (A-11) also used to visit

said hotel. Similarly, the brother-in-law of accused Jitendra Modha and

Nitin Modha, namely, Bhikubhai Thanki, (A-5), also used to visit hotel

Prachi. The defence has not denied that complainant was running

business of car décor in the name and style as 'A-1 Motors and Car

Decors'. It is also not denied that deceased accused Shantilal and

accused No. 6 Jitendra Modha were running Prachi hotel near the

complainant's shop of car decor.

29] The complainant further deposes that, on 14/8/05 he had been to

Mumbai for his business work. He had asked Sagar to open the shop.

On the same day, 7.30 pm, complainant returned home from

Mumbai. At 7.30 pm he called Sagar on his cell phone and told him to

bring food from Hotel Kundan, Pimpri. He further deposes that, till

10 pm he waited for Sagar, but he did not come. Hence, he gave call

to Hotel Kundan, and talked with Amit Anand, who disclosed him that

Sagar had been to his hotel and after collecting food packet left his

hotel at about 9.15 pm. Thereafter, he had talk with the owner of

Kundal hotel namely Hitesh Chaddha, who also told him that Sagar

had collected food parcel and went away about half an hour. He

further deposes that, he waited for Sagar till 11 pm, but Sagar did

not return home. Hence, he went to hotel Kundan and made inquiry

with Hitesh and came to know that after collecting food packet, Sagar

was to meet his friend. Hence, complainant made inquiry with friends

of Sagar on phone and came to know that Sagar did not meet them


in the said evening. On inquiry with friends of Sagar, he could not

trace him. He further deposes that, Sagar was having Santro car

bearing No. MH-16/E-2104. This part of evidence is simply denied by

accused, but nothing worth has come on record, to disbelieve the

theory of complainant.

30] Complainant further deposes that, in the early morning of

15/8/05, at 2.30 to 2.45 am. He received call on his mobile. Caller

told him that he was calling from Karachi. He told him that, Sagar was

in his custody and directed him to make arrangement of Rs. 2 crores.

The complainant told him that he is not having that much amount

with him, on which caller told him that it was none of his business and

he gave him time till next day. The said call had come from mobile

number 008821621364636. The complainant further deposes that, in

the morning of 15/8/05, he called friends of Sagar and his cousin

Sudhir Sahani and formed their three groups to trace out Sagar. One

group was sent to search Sagar at Katraj bypass highway, other

group was sent to Nasik highway and third group was sent to old

Mumbai-Pune highway. At about 7 am, his nephew Dhiraj Sahani

informed him that Santro car of Sagar was found in abandoned

condition near Somatane approach road on old Mumbai-Pune road. He

further deposes that, on the basis of said information, he went to

police station and lodged missing report of Sagar (Exh. 249).

31] On going through the missing report (Exh.249), it appears that,

complainant had alleged that in the night of 14/8/05, Sagar did not

return home. Thereafter he received telephonic call and abductor

demanded Rs. 2 crores. He also threatened him that if he would lodge

the complaint with police, he would cut the hands of Sagar. Hence, it

appears that, the complainant, for the security of his son Sagar, did not

lodge complaint, but he gave information of missing of Sagar to


police. Therefore, it can be said that complainant had fear in his mind

that if police takes action, then there would be danger to the life of his

son Sagar, therefore, he gave information to police that they should

be slow in action.

32] The complainant further deposes that, on 16/8/05, 17/8/05 and

18/8/05, he received threat calls from the same person from same

mobile number. But, caller was demanding amount of ransom. Hence,

he requested him to have conversation with Sagar on telephone. He

further deposes that, on 19/8/05, he lodged complaint against the

culprits(Exh. 250). He further deposes that, on 20/8/05 he received

call from abductor informing that he had recorded conversation of

Sagar and said Audio Cassette was kept below the Eucalyptus tree

inside Khandoba temple, Akurdi. The complainant asked his cousin

Sudhir Sahani and nephew Suresh Rupesha to visit said place. Said

information was also given to police. Accordingly, police took Sudhir

and Suresh Rupesha to Khandoba temple. Sudhir went inside temple

and found one box sealed with red tape. The said box was opened, it

was containing cassette, which was played in the police station. He

further deposes that, he and Sudhir Sahani identified the voice of

Sagar, recorded in the cassette. On this point, Sudhir Sahani also

deposes that, on 20/8/05, he had been to Crime Branch office along

with complainant and Suresh Rupesha, at that time, complainant

received telephonic call fromabductor. It was informed to complainant

that audio cassette containing conversation of deceased Sagar was

kept at Khandoba temple, Akurdi. Hence, he along with police and

Suresh Rupesha went there and found one packet wrapped in red tape

below the tree. He collecled the packet and showed it to police.

Thereafter they returned back to the office of Crime Branch and

packet was opened which was containing audio cassette. It was

played in the police station. He and complainant identified the voice of


Sagar.

33] In the cross-examination, witness has admitted that his

statement was recorded on 30/8/05. There is no mention of incident

alleged to have been occurred on 20/8/05 Ghurye. He also admits that,

incident of approaching Khandoba temple, bringing parcel to Crime

Branch office, and that audio cassette was being played and he

identified the voice of deceased occurred on 20/8/05, but it is not

mentioned in his statement. The omission is in respect of date of said

incident. It is mentioned in his statement that he had been to Crime

Branch office, at that time complainant received telephonic call from

abductor who gave information about cassette, accordingly he went to

Khandoba temple , received parcel , brought it to police station and

played it in the police station. therefore, it can be said that omission

is in respect of date. The complainant had specifically stated in his

ocular evidence that he received call ofabductor on 20/8/05, wherein

information regarding cassette was given to him. The said cassette

was brought to police station by Suresh Rupesha and Sudhir Sahani.

So, omission is in respect of the date of said incident which was

occurred on 19/8/2005 and not on 20/8/05.

34] On this count, evidence of Suresh Rupeja is also important. He

deposes that, on 20/8/05 he accompanied complainant to Crime

Branch office. At that time, complainant received call on his mobile

fromabductor, in his presence, complainant disclosed police that audio

cassette containing conversation of deceased was kept at Khandoba

temple, hence he went there along with Sudhir Sahani and police to

collect the cassette. Accordingly, on reaching the temple, he saw box

with red tape. It was picked up by him and handed over to police.

Police played the cassette wherein voice of Sagar was identified by

complainant. The said evidence of is simply denied by accused.


35] To support the evidence of complainant, Suresh Rupesha and

Sudhir Sahani, prosecution has also relied on the evidence of

investigating officer Rajendra Joshi (PW 54), who deposes that, on

19/8/05, complainant came to the police station and lodged complaint

(Exh. 250),on the basis of which CR No. 562/05 came to the registered

and he received investigation of the same. He further deposes that,

on the same day, he received information from complainant that,

audio cassette containing voice of Sagar was kept Khandoba temple

at Akurdi. Hence, he along with Sudhir Sahani and Suresh Rupesha

went there where Sudhir Sahani found cassette in the temple, which

he handed over to him. He seized said cassette under panchanama

(Exh. 483). The said cassette was played in the office of Crime Branch .

On hearing the same, complainant and Sudhir Sahani identified the

voice of Sagar recorded in the cassette. The contents of cassette were

recorded in the body of panchanama. The cassette was also played in

the Court. The conversation recorded therein is reproduced in the

panchanama.

36] There is discrepancy in the date of receiving cassette. According

to complainant , he received telephonic call of abductor on 20/8/05 in

the Crime Branch, accordingly cassette was seized under panchanama

on the same day. Similar version is given by Sudhir Sahani and

Suresh Rupesha, but investigating officer Rajendra Joshi, has

categorically deposed that, on 19/8/05 complainant had come to Crime

Branch for lodging complaint and after lodging complaint, complainant

received telephonic call from abductor who gave him information

regarding keeping of audio cassette in Khandoba temple, accordingly,

he went there and found the cassette which was seized under

panchanama. The date of panchanama is 19/8/05. It appears that, the

complainant, Sudhir Sahani and Suresh Rupesha have given incorrect


date of seizure of cassette. It appears from seizure panchanama that

cassette was seized on 19/8/05. The discrepancy in respect of the date

of seizure is not material. What is material, is receiving of cassette

containing the voice of Sagar. The complainant and Sudhir Sahani

categorically deposed that, they identified voice of Sagar recorded in

the cassette. On hearing the conversation, it appears that, Sagar was

under fear of death. He had requested complainant to pay the amount

to abductor for his release. He has also expressed his fear that if the

amount is not paid, the abductor may commit any wrong with him.

From the said conversation, it appears that, abductor had given

indication of his plan to extract money and in default, he may kill victim

Sagar. Therefore, it is established that in the night of 14/8/05,

deceased Sagar was abducted from Pimpri area along with his Santro

car which was found at Somatane phata. The said car was also seized

by police under panchanama (Exh. 483). The said fact is also not

denied by the defence. Therefore, it is proved that Sagar was abducted.

37] It is further come in the evidence of complainant that on 21/8/05

he had a discussion with his family members and they decided to

settle the matter with abductor by paying some amount towards

ransom. Accordingly, he told police and requested them not to

interfere in to the matter for the sake of life of his son. Accordingly,

his statement was recorded by police. He further deposes that, on

23/8/05, he had negotiations with abductor on mobile. The abductors

reduced the ransom from Rs. two crores to eighty lacs and then came

down to fifty lacs and ultimately it was settled to fifteen lacs. The said

fact is confirmed by accused in cross-examination in para 15 wherein

complainant admits that in audio cassette Sagar stated that the

amount of ransom was not paid, there was danger to his life. Therefore,

on 21/8/05 he took decision to rescue Sagar by paying amount to

abductor.


38] Complainant further deposes that, the abductor told him that he

wants the amount of Rs. 15 lacs at Karachi through Havala. The

complainant again told him that, he does not know how the amount

should be sent through Hawala, upon which, abductor told him that

he should send the amount through Hawala agent. He further deposes

that, on 24/8/05, he received call of abductor. The abductor repeated

that amount should be sent through Hawala agent. Complainant told

him that he is not aware about agent, upon it, abductor told him that

he would inform him about Hawala agent within short time and he

disconnected the phone. He further deposes that, within an hour

thereafter he again received call of abductor directing him to contact

one Kadarbhai at Mumbai. The abductor also gave him cell phone

number of Kadarbhai as 9819733195. Accordingly, he called Kadarbhai

on the said number. He received address of Kadarbhai as “Third floor,

Sitaram building, Crofferd Market, Mumbai.” On the same day, at

about 2.30 pm, complainant along with Suresh Rupesha proceeded to

Mumbai in car. At about 5.30 pm, they reached third floor of Sitaram

building. At the entrance of the building, they inquired with one boy

about Kadarbhai, who directed them to visit cabin situated on third

floor. Then he sat in the cabin. Thereafter, one person aged about 30-

35 years came there and asked the purpose of his visit. He told him

that he wanted to send Rs. 15 lacs to Karachi. He also told said

person that he had come from Pune. The said person asked code

number, but he was not knowing the code number. He told him that

he was to send money to Karachi, urgently. Said person asked the

name to whom money was to be sent. He told that person that he

wanted to send money to Kadarbhai. He came to know the name of

said person as Shamsuddin, who was brother of Kadarbhai. He told

him to arrange for the meeting with Kadarbhai, but Shamsuddin

disclosed him that Kadarbhai was sleeping and would awake within


one hour or so. Thereafter Shamsuddin gave 4-5 calls to Kadarbhai.

Thereafter Shamsuddin had a talk with Kadarbhai, but he did not

understand it as it was in some unknown language. Then Shamsuddin

went outside, at that time he received call of abductor who asked him

whether he had given the cash to Hawala agent. He told him that he

was sitting in the office of Hawala agent for about an hour and he was

not accepting the amount. Then after five minutes, Shamsuddin came

and asked to pay amount to him. Accordingly, he paid Rs. 15 lacs to

Shamsuddin, which were containing 18 bundles of currency notes of

Rs. 500/- and 6 bundles of currency notes of Rs 1,000/- respectively.

Thereafter Shamsuddin called the boy who was sitting outside the

cabin and said boy ( A1) and Shamsuddin counted the notes. He

further deposes that, while counting the notes, he received call of

abductor on his mobile and complainant informed abductor that

amount was paid to Shamsuddin. Then Shamsuddin talked with

abductor. Then he again talked with abductor who asked him to

return back and assured that Sagar would be released within 3-4

hours. He further deposes that, he asked Shamsuddin about the receipt

of money. Initially Shamsuddin refused to give receipt, but upon his

resistance Shamsuddin issued one chit wherein it was written as

Syam”, 15/= O.K. 24.08. Thereafter he along with his cousin returned

to Pune. On the way, he received call from abductor who told him that

he would get money on next day, so, Sagar would be released on

25/8/05. He protested said act of abductor. Abductor told him that he

would call him in the night of 24/8/05, but he did not call him.

39] Complainant further deposes that, on 25/8/05, abductor again

called him and told that he would get amount in Dubai within half an

hour and thereafter Sagar would be released within three hours. He

further deposes that, thereafter neither he received call from abductor

nor Sagar returned home.


40] The evidence of Suresh Rupesha is also corroborative to the

evidence of complainant on the point of payment of ransom to

Shamsuddin. According to him, on 24/8/05, he had been to the house

of complainant and in his presence at about 1.30 to 2 pm,

complainant received call from abductor on his mobile and an amount

of Rs. 15 lacs were finally settled as ransom between complainant and

abductor. He further deposes that, complainant requested him to

accompany him to Mumbai to give amount of ransom. Accordingly, he

along with complainant and traveled to Mumbai. He reached to Sitaram

building at about 5.30 to 6 pm. When he reached that place, one

person was sitting outside the cabin, who informed complainant in

respect of Kadarbhai. He further deposes that, the said person went

inside the cabin and then asked him to go inside the cabin. After some

time, one person came inside the cabin who asked the purpose of

their visit. The complainant informed him that he wanted to pay Rs.

15 lacs. The said person stated that Kadarbhai was sleeping and he

would accept the money as and when Kadarbhai wakes up. He further

deposes that, initially said person introduced himself as Kadarbhai

and subsequently he told his name as Shamsuddin. Thereafter,

Shamsuddin went outside the cabin and returned within five minutes

and informed complainant that he received phone on his mobile and

accordingly complainant paid Rs. 15 lacs to Shamsuddin. Then

Shamsuddin called a person who was outside the cabin namely

accused No.1 Mohammed Ali Abbas Ali, and both of them counted the

amount. Thereafter Shamsuddin issued receipt of payment wherein it

was written as ' Syam, 15/= O.K.' He further deposes that, while

proceeding to Pune, complainant received call from abductor on his

mobile. The complainant pleaded the abductor to release Sagar on

that day, as he paid entire amount. The complainant was weeping at

that time. The abductor told complainant that he would release Sagar


on next day, after receipt of amount from the agent.

41] Witness Suresh Rupesha also deposes that pm 28/8/05 he

received call from Crime Branch and he was told that Sudhir Sahani

was proceeding to Gujrat along with police as dead body resembling

with that of Sagar was discovered. Police directed him to come on

next day morning and take the police to the place where they had paid

the amount of ransom. He further deposes that, on next day at 6.30

am, he went to Crime Branch. He along with Deore and other police

officers went to Mumbai. He took police to third floor Sitaram Building,

near Crofferd market, Mumbai and showed Shamsuddin @ Kadarabhai

and person who was standing outside the cabin and thereafter his

statement was recorded. In cross-examination taken on behalf of

accused No.1, witness admitted that at the time of discussion, he

along with complainant and Shamsuddin were present in the cabin.

So, it is admitted that Shamsuddin was present in the cabin and he

received the amount of ransom from complainant.

42] In the cross-examination Suresh Rupesha also admits that, he did

not visit Mumbai along with PI Pawar and others on 28/8/05. He also

admits that, he did not tell police that on 28/8/05 at 6 pm, he went

to Crime Branch office and then went to Mumbai along with police and

showed the place where complainant paid the ransom amount. The

omission is in respect of date only. In the statement, it is mentioned

that witness went to Mumbai along with police on 28/8/05. In fact, he

had been to Mumbai on 29/8/05 and said fact is revealed from the

panchanama of the spot (Exh. 455). The said panchanama is admitted

by defence. So, discrepancy in the date is not material to discard his

evidence.

43] The payment of ransom amount was denied by accused Nos. 2 to


11. But on behalf of accused No.1 it is suggested to complainant that

he simply counted the amount given by him. It is the case of

prosecution that accused No.1 Mohammed Ali Abbas Ali, who was

present outside the cabin of Shamsuddin, was called by Shamsuddin

for counting the amount of ransom. From the said suggestion, it is

aptly clear that at the time of payment of ransom, accused No.1 was

not present there, who simply counted the amount at the instance of

absconding accused Shamsuddin. Therefore, it is established that

complainant had paid the amount of ransom to Shamsuddin and

accused No.1 Mohammed Ali Abbas Ali, helped him in counting the

same.

44] Complainant further deposes that, on 28/8/05 Sudhir Sahani

received call from police and he was informed that one dead body was

located at Gujrat, description of which was matching with Sagar.

Accordingly, Sudhir Sahani went to Gujrat along with police in the

night of 28/8/05. He further deposes that, Sudhir Sahani identified

dead body as that of Sagar. He brought dead body Pune on 29/8/05.

In the cross-examination complainant has admitted that dead body was

brought to his house. He had seen it. Sudhir Sahani has categorically

deposed that, he went to Valsad along with police, where he was

shown dead body in mortuary. He identified the dead body as that

of Sagar and then he brought it to Pune and ultimately the last rites

were performed on the dead body of Sagar on 29/8/05. So, it can be

said that dead body of Sagar was found at Gujrat which was rightly

identified by complainant and Sudhir Sahani.

45] Dead body of deceased Sagar was found in the forest at Kaprala,

which was removed to hospital for postmortem examination. To prove

the recovery of dead body from forest of Kaprala, prosecution has

examined Bhimjubahi Radiya,(PW 36). According to him, he is resident


of Mandava, Tal. Kaprala, Dist. Balsad. He deposes that, he owns

cattle. He took cattle for grazing to nearby forest area known as

Chondi. About six years prior to his deposition, when he was grazing

cattle in nearby jungle, he noticed one dead body near a place called

as Chondicha Chatta. It was forest area. On seeing the dead body he

went to Dy. Sarpanch Kisanbhai Konti (PW 37), of village Mandvi and

informed him about it. Thereafter Dy. Sarpanch took him to house of

Sarpanch Bistubhai Ghotiya, but he was not present in house. Hence on

next day on 27/8/05 he along with Kisanbhai and Bistubhai went to

Kaprala police station and informed about dead body, thereafter he

returned home.

46] In the cross-examination, he admits that, he saw dead body at

the distance of 15-20' from the road. When he saw dead body, it was

raining since morning. He admits that he did not notice maggot near

the dead body. Dead body was having T-shirt and jeans. He did not

see the face of deceased. He also admits that, he did not go near the

dead body. He further admits that, he showed dead body to sarpanch

of his village. So, from the evidence of Bhimjubai, it is established that

he was the first person who saw the dead body lying in the forest

area.

47] To support the evidence of Bhimjubhai, Dy.Sarpanch Kisanbhai

Konti (PW 37) deposes that, on 26/8/05 at about 5.20 pm, Bimjubhai

approached him and disclosed that one dead body was lying besides

road near Chondicha Chatta. He went to the spot and saw the dead

body. Thereafter he along with Bhimjubhai went to the house of

sarpanch, but he was not present in the house. He further deposes

that, in the early morning of next day, he went to the house of

sarpanch and informed him about the dead body. Sarpanch then

approached police and then he came to the spot along with police and


saw that the throat of dead body was cut. He saw mobile phone and

two currency notes of denomination of Rs. 500/- in the clothes of

deceased. He saw that there was jeans and reddish colour T-shirt on

the person of dead body. He admits in the cross-examination that on

26/8/05, he did not see dead body by going near to it. He had seen

the dead body from some distance. He did not inform police on

26/8/05 regarding the dead body. He also admits that, on 27/8/05 also

he did not inform police about it. He admits that he had showed dead

body to sarpanch Bistubhai Ghotiya. Dead body was about 15' away

from the road. He had seen maggots near the dead body. The face

was stained with blood and could not be recognized. He was on the

spot for about 15-20 minutes. He was not called by police at police

station. From the evidence of Kisanbhai it is established that he got

the information from Bhimjubhai regarding dead body lying at

Chondicha Chatta, in forest area.

48] The prosecution also examined sarpanch Bistubhai Ghotiya (PW

34) who deposes that, on 26/8/05 he had been to out of station. He

reached home at about 10 pm. Kisanbhai Konti (PW 37) was present in

his house. He disclosed him that one dead body was lying at

Chondicha Chatta. He asked him to show the place where dead body

was lying. Accordingly, he along with Kisanbhai Konti went to the spot.

It was forest area. There was no street light, hence he could not see the

dead body, hence he returned. In the morning, they rushed to Kaprala

police station and informed police about the dead body. He further

deposes that, then police rushed to the spot and saw dead body lying

in the forest area. The dead body was lying aside. He turned dead

body and saw marks of injury on throat of the dead body. The dead

body was having shirt and pant on its person. Thereafter he lodged FIR

with Kaprala police station (Exh. 361).


49] In the cross-examination, he admits that when he saw dead body

there was pungent smell and maggots were seen. He did not notice

any animal bite on dead body. The dead body had not become hard.

The dead body was turned faint blackish. Police had taken

photographs and also conducted video-shooting. Police called van. Dog

squad was also called, but it was not reached the spot, till body was

removed to the hospital. He also admits that panchanama was not

carried in his presence. The evidence of this witness is also not denied.

Therefore, it is established that he got the information of deceased

from Kisanbhai Konti and Bhimjubhai Radiya, thereafter he lodged

complaint, on the basis of which, CR No. 56/05 was registered with

Kaprala police station. So, the evidence of police officer, who carried

out the investigation of said crime is also important.

50] The prosecution has examined said police officer Rambhai Zala

(PW 44), who deposes that, from 2004 to November 2005 he was PSI

at Kaprala police station. On 27/8/05, Bistubhai Ghotiya, sarpanch of

village Mandava informed him in respect of dead body lying near

Chondicha Chatta. Accordingly, he recorded FIR of Bistubhai Ghotiya

(Exh. 361). On the basis of of complaint he registered CR No. 56/05

and information was sent to D.S.P and S.P. Thereafter he went to the

spot where dead body was lying. He called 2 panch witnesses and

prepared inquest panchanama of dead body. (Exh. 363). He called

expert from Forensic Science Laboratory from Balsad. He also called

dog squad. Thereafter he carried out spot panchanama and seized the

articles found on the spot. He further deposes that, dog squad came

there and took the smell and returned back. The expert of FSL

collected samples of plain soil, bloodstained soil from the spot.

Thereafter body was sent to postmortem examination and then to

mortuary of Kasturba hospital. He also sent police constable Naik to

Walsad to carry out postmortem of dead body. He recorded


statements of drivers plying vehicles on Nasik-Walsad highway. The

posters in respect of deceased Sagar Sahani were affixed in Wapi. He

also took photograph of dead body and circulated the same.

Meanwhile, DSP at Wapi had been to Kaprala and seen dead body.

After returning to Wapi, DSP came to know that the posters affixed in

Wapi of deceased Sagar Sahani, matches with the dead body found at

Kaprala. Then investigation team of Pune came to Wapi and then to

Kaprala. Then on 29/8/05, PI Rajendra Joshi, from Pune came to

Nanaponda outpost of Kaprala police station, along with uncle of

deceased viz. Sudhir Sahani. He took them to Kasturba Hospital and

showed the dead body of Sagar in presence of two panch witnesses.

Sudhir Sahani identified it to be that of Sagar. Accordingly, he

prepared panchanama to that effect (Exh. 399). Thereafter he

handed over dead body to Sudhir Sahani and obtained receipt. On

this point, learned advocate Shri. Koshe submits that, Sudhir Sahani

had not whispered anything about the preparation of panchanama and

issuance of receipt. It is true that, Sudhir Sahani has admitted that

after seeing he dead body, he was frightened, hence he does not know

what procedures were adopted thereafter. He also admits that, he is

diabetic patient and insulin dependent. Therefore, it is possible that,

Sudhir Sahani does not remember, what procedure was followed by

police while handing over the dead body to him. But, he categorically

deposed that he identified dead body as that of Sagar and claimed it.

So, there is no ambiguity in the evidence of Sudhir Sahani.

51] Investigating officer Rambhai Zala (PW 44) further deposes that,

on the request of PI Rajendra Joshi, he handed over investigation

papers of CR No. 56/05 to him. Accordingly, he also handed over the

seized articles to Rajendra Joshi and obtained his acknowledgement.

He further deposes that, he came to know the name of deceased as

Sagar Satindar Sahani. Accordingly, he sent his report to Medical


Officer (Exh. 396). In the cross-examination, he admits that, he

recorded FIR of Bistubhai Ghotiya, at 6 am, on 27/8/05. At about 8

am, he gave information of finding of unknown dead body to all

police stations on wireless. He had received report of dog squad on the

spot. The prosecution has not produced the report of dog squad.

Hence, it is submitted by learned advocate Shri. Koshe, that, it is

against the prosecution and no clue was found to dog squad. Witness

also deposes that, dog squad had been to the road and then it

returned back. So, it appears that, investigating officer did not receive

any clue from the dog squad, hence it is not produced.

52] Investigating officer Rambhai Zala (PW 44) further deposes that,

he had called finger print expert, but he did not come. He did not call

Medical Officer on the spot. He had called Tahsildar, but he also did not

turn up there. From the said evidence it appears that, investigating

officer has taken care to call the expert witnesses, to collect the

material from the spot. But, they did not come. It appears that, the

dead body was having maggots, hence, it was immediately taken to

hospital for postmortem examination.

53] Investigating officer Rambhai Zala (PW 44) further admits that,

when he first saw dead body, its head was towards south side and

legs were in northern direction. When he went to the spot, it was

raining, however, dead body was not stained with mud. He had seen

maggots on the injury of throat of deceased. He had taken

photographs at the spot. He had personally handed over dead body to

Nanaponda Community Health Center and he deposed that, except

those 30-45 minutes, he was all the while present on the spot for

entire day. He also admits that, Medical Officer did not give him

postmortem report on the same day. He had maintained case diary in

respect of CR No. 56/05, but it is not produced in the Court. He further


admits that, he had shown photograph of dead body to Sudhir Sahani,

who identified the same as that of Sagar Sahani. So, from the evidence

of PSI Rambhai Zala, it is established that he got information of dead

body from Sarpanch Bistubhai Ghotiya, accordingly, he recorded his

FIR and thereafter rushed to the spot and prepared inquest

panchanama (Exh. 363). He called experts on the spot and thereafter

sent dead body for postmortem examination. He had also shown dead

body to Sudhir Sahani, who identified the same as that of Sagar Sahani.

54] The prosecution has also examined panch witness Jamubhai

Ghotiya (PW 35), for seizure of clothes of deceased. According to him,

he was called to witness inquest panchanama. The dead body was

lying on the side of the road. The deceased was wearing T-shirt and

jeans with waist belt. He saw mobile phone and currency note of Rs.

500/- on the person of dead body. The throat of dead body was silted.

There was no other injury on the dead body than the cut of throat. Key

of vehicle was also found with the dead body. Police seized said

articles and conducted panchanama in his presence. Thereafter he

signed the same (Exh. 353). He identified mobile phone, belt, jacket, T-

shirt, jeans pant ( articles 14,15,10,12 and 9 respectively). In the cross-

examination, he admits that he was called by police at 10 am. After

obtaining his signature, he was asked to leave. Within about half an

hour he left for home. He also admits that, he attends the police

station as and when called by them. In the year 2005, he was called

by police only once. On the basis of said admissions. learned

advocate Shri. Koshe, has vehemently submitted that, the said

witness is stock witness of Kaprala police, therefore, his evidence

should not be believed. It appears that, the witness visits police station

as and when called, but there is no specific suggestion that he has

acted as panch witness in several cases of Kaprala police station.

Similarly, his evidence is on the point of inquest panchanama. there


is evidence of sarpanch Bistubhai Ghotiya, deputy sarpanch Kisanbhai

Konti and Bhimjubhai Radiya who saw the dead body first, at forest

area, therefore, it is sufficiently established that Bhimjubhai Radiya

had seen the dead body, who gave information of the same to deputy

sarpanch and sarpanch of their village, and thereafter investigating

officer Rambhai Zala of Kaprala police station sent the dead body to

Hospital for postmortem examination and made further investigation.

The panch witness Jamubhai Ghotiya has established that police had

prepared inquest panchanama and seized the articles found on the

dead body. So, prosecution has established beyond shadow of

reasonable doubt that dead body of Sagar Sahani was found in the

forest of Kaprala police station, which was sent to Community Hall

Center of Nandakonda , Tal. Kaprala.

55] To prove the postmortem examination as well as cause of death,

prosecution has relied on the evidence of Dr. Harjeet Singh (PW 43).

According to him, he is attached to Community Health Center,

Nanaponda as Medical Officer, since April 2000. On 27/8/05, dead

body of unknown person was sent to him along with inquest

panchanama by police. He performed postmortem on the said dead

body on the same day at about 12 pm, along with his colleague Dr.

Subhash Patel. He further deposes that, the dead body was of a male

of 22 years, having height of 5'8”. He found following internal injuries

on the dead body :

1. Incised wound extending from 2” below the right femur to

left side 1” below the angle of mandible, having size of 5”

long and 2” deep in center and 1” in the side,

2. Carotid artejsered jugular was cut. Infrahyoid muscle torn,

thyroidal membrane and ligaments are torn,

3. Whole of the wound was covered with maggots. Maggot was

also present inside the trachea,


4. Bruise, yellow in colour, having size of 2 x 1 cm, on right

knee, small abrasion right side of forehead.

On internal examination, he found that heart was empty and there

was undigested food material in the stomach containing grains of rice

and dal. There was undigested food material present in the stomach

leading to the conclusion that death had occurred 3-4 hours after the

meal. He opined that cause of death as “ Hemorrhagic shock due to

chop wound over neck”. Accordingly, he prepared postmortem report

(Exh. 394) which bears his signature and signature of Dr. Patel. He

further deposes that, in ordinary course of nature, the above injuries

are sufficient to cause death. Witness was shown seized knife/chopper

(Article 143). On the basis of same, He deposes that, injury sustained

to deceased can be caused by said weapon. He further deposes that,

on 27/8/05, he had obtained blood sample of deceased and handed it

over to police along with letter. On 29/8/05, police officer Rambhai Zala

forwarded him letter wherein name of deceased was given as Sagar

Satinder Sahani. Accordingly, he mentioned the name of deceased in

postmortem report (Exh. 396).

56] In the cross-examination Medical Officer admits that, he did not

see any foreign particles in the injury except maggots. Considering the

formation of maggots, he opined that the decomposition of the body

had started recently at that time. Considering the nature of injury, it

appeared that there was profuse loss of blood. He deposes that, on

account of profuse blood loss, a person may suffer hemorrhagic

shock. He also admits that there can be possibility of survival, if said

person gets immediate medical help. He deposes that, putrefaction of

body starts within 48 hours. 36-48 hours time is required for formation

of maggots. The maggots were fully developed. Maggots can get fully

developed within 48 hours. It takes about 7-8 hours for digestion of

food material like rice and dal. The injury mentioned in column No. 17


was clean cut. He also admits that, no weapon was shown to him at

the time of conducting postmortem examination or anytime thereafter.

It was suggested to him that, considering the length, edge and

sharpness of the weapon, it is not possible to cause injury mentioned in

column No. 17 of postmortem report, by seized weapon, but he flatly

refused it. He admits that he did not prepare the postmortem report

on 27/8/05, but he admits that he gave cause of death certificate on

27/8/05. He also admits that, in cause of death name of deceased was

not mentioned. He admits that he did not take photograph of

postmortem examination. On the basis of said evidence, it is

established that the deceased died due to “Hemorrhagic shock due to

chop wound over neck”. The said aspect is not denied by the defence.

57] Medical Officer Dr. Harjeet Singh has admitted that putrefaction

of body starts within 48 hours and formation of maggots starts from

36-48 hours. Admittedly, postmortem had taken place on 27/8/05 at

about 12 noon. So, death must have been caused after 12 noon of

25/8/05. It is the case of prosecution that death of deceased caused

around 8 pm on 25/8/05. Therefore, the opinion of Medical Officer

regarding the time of death supports the case of prosecution, that,

death must have been caused within 48 hours is correct. Similarly,

Dr. Harjeeet Singh opined that death of deceased must have occurred

3-4 hours after the meal, because he found undigested food material

namely, grains of rice and dal. It takes around 7-8 hours for digestion

of food like rice and dal. So, death must have been caused after 3-4

hours of the meal. Therefore, it is proved that death of deceased was

homicidal and it was caused due to profuse bleeding from the injury on

neck.

58] Having proved the abduction and murder of Sagar Sahani, the

prosecution is required to prove the author of the offence. The entire


case is based on circumstantial evidence . Hence, the prosecution is

heavily relying on the evidence of Approver Narayan Jameria. Who is

examined in this case as prosecution witness. According to

prosecution, Approver Narayan Jameria had submitted two

applications for tender of pardon. The first application is dated 22/1/08

(Exh. 92-1). On the said application, then presiding Judge directed him

to produce before CJM for recording his statement. But, record shows

that Approver was never produced before CJM for recording his

statement. So, no order of pardon was passed on the said application.

Thereafter on 25/10/10, Approver submitted another application (Exh.

161) and requested this Court to grant him pardon. In pursuance of the

said application, Approver was produced before this Court on 9/12/10.

His statement was recorded by then Presiding Judge, and order came

to be passed whereby direction was given to CJM to record statement

of Approver u/s 164 Cr.P.C. . Accordingly, then CJM recorded statement

of Approver u/s 164 of Cr.P.C., and forwarded it to this Court.

Thereafter Approver was produced before this Court on 18/1/11. on

the basis of statement of Approver dated 9/12/10, recorded by this

Court and statement recorded by CJM, this Court granted tender of

pardon to original Accused No. 4 Narayan Jameria u/s 307 of Cr.P.C.

59] In view of the above facts, learned advocate Shri. Koshe has

vehemently submitted that, the grant of pardon is not proper, in fact, it

is illegal. Provisions of section 306 and 307 of Cr.P.C. were not

followed. He also submits that, CJM did not comply with the

provisions of Criminal Manual, while recording statement of Approver

u/s 164 of Cr.P.C. He also submits that, the statement of accused u/s

164 of Cr.P.C., is confession, so, it has to be recorded as per the

provisions of Criminal Manual. To Substantiate the point, he has relied

on the ratio laid down in the case of Babubhai Udesinh Parmar

Vs. State of Gujarat, reported in AIR 2007, S.C. 420, wherein it


was held that :

“While recording judicial confession, section 164 provides for

safeguards for accused. The provisions contained therein are

required to be strictly complied with. But, it does not envisage

compliance of the statutory provision in a routine or mechanical

manner.”

It was further held that :

“ It is not proper to administer oath to accused wile recording

confession.”

In the present case, Court directed CJM to record statement of

Approver u/s 164 of Cr.P.C. CJM had granted time for reflexion but

the mandatory provisions of Criminal Manual are not followed. Perhaps

the reason was that, the CJM was directed to record statement u/s

164. Therefore, on 9/12/10 and 18/12/10 this Court had verified the

voluntariness of Approver to become witness for prosecution.

Therefore, the authority relied on by the learned advocate is not

applicable to the facts of the present case.

60] Learned advocate Shri. Koshe also has relied on the ratio laid

down in the case of Shivappa Vs. State of Karnataka, reported

in AIR 195 S.C, 980, wherein it was held that :

“ Confession of accused u/s 164 of Cr.P.C. , cannot be acted upon

unless Court satisfies that it is voluntary in nature.”

In the present case, it appears that, this Court has recorded statement

of Approver and not the confession of Approver. The voluntariness of

Approver to become witness for prosecution is vouched and verified

by this Court and it is reflected from the order passed on 9/12/10 and

18/12/10. The Approver had given two applications for becoming


witness to the prosecution. He prayed for tender of pardon which was

granted by this court. Therefore, it appears that, the Approver had

voluntarily was read and willing to become the witness. It includes his

voluntariness to give evidence against himself as well as co-accused.

Therefore, the ratio relied upon by the learned advocate is also not

applicable to the facts of the present case.

61] On the other hand, learned Spl. P.P. Shri. Shah submits that, the

Approver was granted tender of pardon by this Court u/s 307 of Cr.P.C.,

therefore, there was no need for this Court to refer the Approver

before CJM for recording his statement. He also submits that, this

court has verified the truthfulness of application dated 25/10/10 and

recorded statement of Approver on 9/12/10 and come to the

conclusion that Narayan Jameria was directly concerned with the

offence or privy to the offence alleged against him. Hence, he was

granted pardon. Therefore, there is no illegality committed by this

Court while granting him pardon. He also submits that, while recording

statement u/s 164 of Cr.P.C. , the time of reflection was granted to

Approver. The Approver was produced before learned Magistrate,

immediately as per the direction of this Court and then his statement

was recorded on 22/12/10, 23,12/10 and 24/12/10. So, there is

compliance of Criminal Manual and Civil Manual.

62] On the basis of statement of Approver, recorded on 9/12/10, the

Approver was granted time for reflection and then he was again

produced on 18/12/10 before the Court. This Court perused the

application dated 25/10/10 and thereafter on perusal of allegations

levelled against the Approver, granted pardon to him. So, the order of

pardon is u/s 307 of Cr.P.C., because there was no question of resorting

to the provisions of section 306 of Cr.P.C.. But it appears that,

Approver was referred to CJM for recording his statement, in fact that


attempt was futile, there was no need for recording statement of

Approver by CJM. Even if there is lapse on the part of CJM, while

recording statement of accused, the order of tender cannot be

vitiated, similarly it cannot be called as illegal order.

63] Learned Spl. APP Shri. Shah has relied on the ratio laid down in

the case of Santosh Kumar Satishbhushan Bariyar Vs. State of

Maharashtra, reported in 2009 (6) SCC 498. In the said case,

tender of pardon was granted to one of the accused by Sessions Court

on the basis of statement recorded by learned Magistrate The said

order was challenged before Hon'ble High Court as well as Hon'ble

Apex Court. The Hon'ble Apex Court has specifically framed the issue

namely :

'Whether the learned Sessions Judge acted illegally in granting pardon to Kumar Gaurav'.

While deciding the said issue, Hon'ble Apex Court held that :

“Section 306, thus, empowers the Chief Judicial Magistrate or a

Metropolitan Magistrate or a Magistrate of the First Class,

inquiring into or trying the offence to tender a pardon to such

person on condition of his making a full and true disclosure of the

whole of the circumstances within his knowledge relating to the

offence and to every other person concerned, whether as

principal or abettor, in the commission thereof. The said provision

indisputably applies to the cases triable exclusively by a Court of

Sessions.

The Magistrate tendering pardon is required to record his

reasons for so doing and to further record whether the tender

was or was not accepted by the person to whom it was made.

Sub-section (4) of section 306 of the Code of Criminal Procedure

mandates that such a person accepting tender of pardon must be

examined as a witness in the trial. Sub-section (5) of section 306


of the Code of Criminal Procedure provides that where a person

has accepted tender of pardon made under sub-section (1) and

has been examined under sub- section (4), the Magistrate taking

cognizance of the offence shall commit it for trial, without making

any further inquiry in the case.

Sub-section (4) of section 306 is procedural in nature. It is

necessary to be followed only by a Magistrate as he would not

have any jurisdiction to try the case himself. The leaned Sessions

Judge before whom the case is committed for trial must be

informed as to on what basis pardon had been tendered.

Section 307 does not contain any such condition. The power

of the learned Sessions Judge is independent of the provisions

contained in section 306 thereof. The condition mentioned in

section 307 refers to the condition laid down in sub-section (1) of

section 306, namely, that the person in whose favour the pardon

has been tendered, will make a full and true disclosure of the

whole of the circumstances within his knowledge. The power of a

Sessions Court is not hedged with any other condition.”

In the said case, Sessions Judge had perused application of Approver.

Thereafter he was examined by putting relevant questions to him and

then pardon was granted.

In the said case, it was held that :

“Sessions Judge, applied his mind on the application for grant of

pardon filed by accused. Similarly, he was examined by Court by

putting relevant questions to him.”


“Sessions Judge did not pass order only on the basis of

purported confessional statement made by Approver. It was not

done mechanically. If in law it was not necessary for learned


Magistrate to forward copy of confession made by Approver u/s

164 of Cr.P.C. or to record a separate statement of the said

witness for the purpose of complying with the provisions of

section 306 of Cr.P.C. , the question as to whether he had

retracted from his confession or not, would not be of much

relevance as regards exercise of power of sessions Judge u/s 307

of Cr.P.C.”


“There was no legal obligation on the trial court or a right in

favour of the accused to insist for the compliance with the

requirement of section 306(4) of the Cr.P.C. Section 307

provides a complete procedure for recording the statement of an

accomplice subject only to compliance of conditions specified in

sub-section (1) of section 306. The law mandates the satisfaction

of the Court granting pardon, that the accused would make a full

and true disclosure of the circumstances within his knowledge

relative to the offence and to every other person concerned,

whether as principal or abettor, in the commission thereof.”

64] In the present case, the Approver submitted application on

25/10/10, he was produced before the Court on 9/12/10, his detail

statement was recorded, to know whether he was under pressure or

influence of some other person to become a witness. Thereafter, time

of reflexion was granted. He was again produced on 18/12/10. On the

same day, this Court granted tender of pardon to him and thereafter

learned CJM was directed to record his statement u/s 164 of Cr.P.C.

While recording statement of Approver by CJM, there are some flaws,

as the provisions of Criminal Manual were not followed in strict sense.

Still, the defect in recording statement of Approver by CJM, will not

affect the order granting tender of pardon to Approver, because it

was within the province of this Court to grant pardon u/s 307 of


Cr.P.C. There was no necessity to refer Approver for recording his

statement before CJM. This Court could have recorded the statement

of Approver. Therefore, in view of ratio laid down in the case cited

supra, it cannot be said that the order of granting pardon is illegal.

65] Learned APP Shri. Shah also relied on the ratio laid down in the

case of Narayan Chetaram Chaudhary Vs. State of Maharashtra,

reported in 2000 SAR (criminal) 844. In the said case, one of the

accused was granted pardon by trial court without referring him to the

learned Magistrate for recording his statement. Hence, it was

contended that the trial court has committed illegality while tendering

pardon to one of the accused. In the said case, it was held that :

“ In order to appreciate the submissions of the learned counsel, a reference to sections 306 and 307 Cr.P.C. is necessary. Section 306 provides :

“Tender of pardon to accomplice (1) with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the CJM or a Metropolitan magistrate at any stage of the investigation or, inquiry into, or the tiral of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relative to the offence and to any other person concerned, whether as principal or abettor, in the commission thereof.

(2) This section applies to :

(a) any offence triable exclusively by the Court of session or by the Court of a special judge appointed under the Criminal Law Amendment Act, 1952;(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3) Every magistrate who tenders a pardon under sub-section (1) shall record :

(a) his reasons for so doing ; (b) whether the tender was or was not accepted by the


person to whom it was made;and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardonmade under sub-section (1) --

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the magistrate taking cognizance of the offence shall, without making any further inquiry in the case, --(a) commit it for trial--(i) to the Court of session, if the offence is triable

exclusively by that Court or if the magistrate taking cognizance is the CJM :

(ii)to a Court of special Judge appointed under the Criminal Law Amendment Act, 1952, if the offence is triable exclusively by that Court;

(b) in any other case, make over the case to the CJM who shall try the case himself.”

Section 307 provides :

“Power to direct tender of pardon : At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.”

A perusal of both the sections clearly indicates that section 306 is

applicable in a case where the order of commitment has not been

passed and section 307 would be applicable after commitment of

the case but before the judgment is pronounced. The provisions of

sub-section (4)(a) of section 306 would be attracted only at a

stage when the case is not committed to the Court of Sessions.

After the commitment , the pardon is to be granted by the trial

court subject to the conditions specified in sub-section (1) of


section 306, i.e., Approver making a full and true disclosure of

the whole of the circumstances within his knowledge relative to

the offence and to every other person concerned, whether as

principal or abettor, in the commission thereof. It may be noticed

that under the old Code, only the District Magistrate had the

power to tender pardon, at any stage of the investigation, inquiry

of trial even though he himself might not be holding such inquiry

or trial. Pardon could be granted by the District Magistrate even

during the pendency of the trial in the Sessions Court. By Criminal

Law Amendment Act, 1952, old sections 337 to 339 were

substituted by sections 306 to 308 of the Cr.P.C., conferring the

power to tender pardon only to Judicial Magistrates and the trial

court. Section 307 in its present form does not contemplate the

recording of the statement of the Approver twice as argued.

Accepting the submissions made on behalf of the appellant

would amount to legislate something in section 307 which the

legislature appears to have intentionally omitted.”

As I have already observed that in the present case, this Court has

referred Approver to CJM for recording his statement u/s 164 of Cr.P.C.

In fact, it was not necessary. Therefore, the said statement is required

to be ignored. So, any discrepancy committed while recording

statement of Approver by CJM, has no impact on granting tender of

pardon. Therefore, I do not find any merit in the submission of learned

advocate Shri. Koshe, that grant of pardon to Approver is illegal and

bad in law.

66] Now I appreciate the evidence Approver Narayan Jameria (PW

1). While discussing the evidence of Approver, I would like to discuss

the evidence of other witnesses in the form of corroboration to the

testimony of Approver so that the evidence may be properly assessed.


67] The Approver deposes that since 1983 he was working as a

driver on heavy vehicles like truck. But, he had simply stated in his

previous statement that he was truck driver by his profession. The

truck is included as heavy vehicle, therefore, the omission that he

was driver on heavy vehicles is not material omission. Witness further

deposes that, in the year 2000, he was working as driver on Jay-

Sagar petrol pump at Porbandar. He also deposes that, accused no. 5

Bhikubhai Thanki was working in the said petrol pump as accountant.

In fact, the said thing is denied by the defence, but in the cross-

examination, it is specifically suggested to Approver that he used

to sell diesel unauthorisedly and complaint to that effect was made by

Bhikubhai Thanki (A 5) to the petrol pump owner, hence he lost his

job. This suggestion shows that Bhikubhai Thanki was also working

with petrol pump along with Approver.

68] It is come in the evidence of Approver that in the year 2003,

Bhikubhai Thanki left the job of Jay-Sagar petrol pump and started his

own travel company by name Shubh Travel at Kamala Nehru Park,

Porbandar. The said fact was also denied by way of suggestion. It is

also suggested to Approver in his cross-examination para 31 that he

joined Shubh Travel in 2004. There were about five drivers and three

other staff members. It is also suggested that he worked with Shubh

Travels for five months. The said suggestions are accepted by the

Approver. Therefore, it is established that after leaving the job of Jay

petrol pump Approver joined Shubh Travels which was owned by

accused Bhikubhai Thanki. Similarly, it was also suggested to Approver

that when father of Bhikubhai Thanki died, all drivers working in Shubh

Travels, visited his house for condolence. The said suggestion is also

accepted by Approver, therefore, it is aptly proved that Bhikubhai

Thanki had started his own travel company in the name and style as


Shubh Travels and Approver was working in the said travel company

in the year 2004.

69] Approver further deposes that, Bhikubhai Thanki had purchased

two Sumo jeeps, one Qualis and one Indica car on finance for travel

business. He had purchased said vehicles in 2004. Bhikubhai Thanki

had also purchased 41 seater A.C bus and he was driving the said bus.

He worked for a period of two months as a driver on the said bus. The

said bus was old and was requiring maintenance. Therefore, it was

sent to Ahmednagar for repairs. He dropped bus at Ahmedabad for

repairs. He further deposes that, he was not paid wages for two

months. Witness admits that he did not stated in his previous

statement that his salary for two months was due from Bhikubhai

Thanki. In fact, Approver has stated in his previous statement that he

was not paid salary for a period of five months. It appears from the

evidence of Approver that, he drove bus of Bhikubhai Thanki for two

months and that payment was in arrears. In fact he has stated that he

worked with Bhikubhai Thanki for about five months and he was not

paid salary. Therefore, the omission regarding arrears of two months is

not material.

70] Approver further deposes that, Bhikubhai Thanki had told him

that his brother-in-law Nilesh Modha (accused No.11) was staying in

Dubai and he was going to send money from Dubai, after receipt of

which he promised him to pay his dues. The said facts were not

narrated by Approver before C.J.M. Therefore, the said evidence is

required to be ignored.

71] Approver further deposes that, he waited for three months for

his payment, but Bhikubhai Thanki was incurring losses continuously.

The said fact is also brought on record as omission, hence it is required


to be ignored. He further deposes that, except Sumo, all his vehicles

were seized by financiers, Sumo was also to be seized by financier,

hence Bhikubhai Thanki sent it to Pune, so it would not be seize. The

said fact was not stated by Approver before CJM, therefore, it is

required to be ignored.

72] Witness further deposes that, after leaving the job of Bhikubhai

Thanki, he started doing work on daily wages. At that time, Bhikubhai

Thanki engaged another driver Accused Samantbhai Gadhvi ( A7),

who used to meet him. He made inquiry with him and he told him that

brother-in-law of Bhikubhai Thanki, if comes from Dubai he would

intimate him, for recovery of his dues.

73] Approver further deposes that, in the month of June-July 2005,

he was at his village Bhot. He had mobile connection bearing No.

9426933206. He received call on his mobile from Reliance mobile

bearing No. 9327804346. The witness has admitted that he did not

tell before CJM that he received call on his said mobile number from

Reliance mobile bearing No. 9327804346. The omission is in respect of

Reliance mobile number. But, Approver has stated before CJM that

he had received telephonic call on his mobile from Reliance mobile,

therefore, the said omission is not material. He further deposes that,

said call was of Samantbhai Gadhvi, asking about his whereabouts. He

told him that he was at his village Bhot. Samantbhai Gadhvi told him

that Nitin Modha (A 11) had come from Dubai. Samantbhai Gadhvi

also told him that he was near Rajkot and approaching his village

Bhot. He was also directed to come to Bhot approach road at highway.

Samantbhai Gadhvi also told him that they were coming in Cielo car.

Approver further deposes that, he went to Bhot approach road on

highway. After some time, Cielo car came and stopped near him. It

was driven by Samantbhai Gadhvi. On the front seat in the left of


Samantbhai Gadhvi, a person of fair complexion was sitting, who was

having french cut beard. He was bald and having gold chains on his

person. Samantbhai Gadhvi told him that he was Nitin Modha.

Witness admits that he did not state before CJM that person sitting

besides Samantbhai Gadhvi was the same person, who was having

french cut beard, he was bald and having gold chains on his person.

The said description is brought on record as omission. In order to

describe accused No. 11, Approver has described him in his evidence.

In fact, the said thing was not stated by him before CJM. However,

Approver has identified accused No. 11 in the Court. Therefore, there

is no ambiguity regarding identify of accused No. 11 Nitin Modha.

Approver further deposes that, Samantbhai Gadhvi introduced him

with accused No. 11, so, description of accused No. 11, given by

Approver does not have any importance, because he was introduced

with Nitin Modha (A 11) by Samantbhai Gadhvi when car was

stopped on Bhot approach road.

74] Witness further deposes that, Nitin Modha (A 11) inquired with

him about STD/PCO center. He took him to STD/PCO center which was

situated at some distance from Bhot approach road at hotel Randal.

After reaching there, Nitin Modha (A 11) alighted from the vehicle. He

was carrying two mobiles with him. He went to PCO center. The said

evidence is simply denied by defence. Prosecution has not obtained

call details from the said STD/PCO center. But, the said discrepancy is

not material. Witness further deposes that, while Nitin Modha was in

STD center, Samantbhai Gadhvi told him that he had inveseted Rs.

One lac with Bhikubhai Thanki in his business. Witness has stated that

he did not state said fact before CJM, but in fact in his previous

statement, it is mentioned that Samantbhai Gadhvi was owing Rs.

One lac from Bhikubhai Thanki. So, it can be said that, Samantbhai

Gadhvi was having some transaction with Bhikubhai Thanki, therefore,


the said omission is also not material.

75] Witness further deposes that, after returning from STD center,

Nitin Modha asked him whether he can work as a driver on All India

Tourist basis. Accused No. 11 also told him that he along with his

family wanted to go on a trip to Kanyakumari from Pune. He further

deposes that, then they came to village Bhot, he took his luggage and

by telling his mother and children, left home. At that time,

Samantbhai Gadhvi was driving the vehicle. Nitin Modha (A 11) was

sitting on front of seat besides the driver. He was sitting in the rear

seat. He further deposes that, they reached Rajkot where accused

Samantbhai Gadhvi took his cousin Ajay Gadhvi (A8), Then they

proceeded to Pune. He further deposes that, they reached outskirts of

Mumbai in Kishimira and one room was booked at Divya palace. The

said hotel was known to Nitin Modha. They spent night in the said

hotel and on next day at 10 am, they left Pune.

76] Witness admits that he did not state before CJM that they

reached outskirts of Mumbai in the midnight and stayed near

Kashimira, book one room in Divya Palace and owner of which was

known to Nitin Modha. They spent night in the said hotel. This entire

part of evidence is brought on record as omission. But it is proved

that Approver along with accused Samantbhai Gadhvi, Ajay Gadhvi

and Nitin Modha proceeded towards Pune. He further deposes that,

on reaching Pune, he went to Ashapura dinning hall. Nitin Modha told

him that said hotel was given to Bhikubhai Thanki by him, he alighted

from the vehicle and went inside hotel. He asked person on the

counter in respect of Bhikubhai Thanki (A 5) and came to know that

Bhikubhai Thanki left Porbandar as he lost his father. The said part of

evidence is simply denied.


77] He further deposes that, thereafter he came to hotel Prachi. He

saw an old man sitting on the counter. Nitin Modha introduced him to

the said person as his father viz. Shantilal Modha ( deceased

accused ). The said part of evidence is simply denied by way of

suggestion. He further deposes that, Samantbhai Gadhvi and Nitin

Modha left in car to meet mother of Nitin Modha. Both of them

returned to hotel Prachi in the evening. They had a dinner at Hotel

Prachi. Then they went to Ashapura Dinning Hall at Nigdi for stay. He

admits that, he did not state before CJM that they had dinner at Hotel

Prachi. But, the said omission is also not so material.

78] Approver further deposes that, on the next day, at about 9 am,

Jitu Modha (A6) came there and told Nitin Modha that since his visa

was expiring, he had to rush Dubai. Then they returned to hotel Prachi.

Witness, Jitu Modha and Ajay Gadhvi got down and Samantbhai

Gadhvi and Nitin Modha left for house of Nitin Modha to collect

passport. He further deposes that, thereafter Nitin Modha returned

back to hotel Prachi and asked his father for some amount to purchase

tickets. He also called agent in Mumbai for ticket. Witness admits that

he did not stated before CJM that Nitin Modha called agent for ticket.

The said omission is also required to be ignored, as it is minor in

nature.

79] Approver further deposes that, when he had been to Prachi

hotel, Samantbhai Gadhvi and Nitin Modha went to the house of Nitin

Modha to collect passport. At that time, a young man of fair

complexion came near the Cielo car. He was looking in to the interiors

of the car. Nitin Modha told him that the car was owned by him. The

name of said person was Sagar. Said Sagar told accused No. 11, that

when he would return from Dubai,he would arrange for the deck and

other interior items for the said car. He was the owner of a shop viz. A-


1. The said shop was situated after 2-3 shops, adjacent to Prachi

hotel. Witness admits that he did not state it before CJM that Sagar told

Nitin that he would arrange for deck and other interior items for the

said car. But the said fact is not material. The crucial fact was that

Approver had seen Sagar near Prachi hotel while he was observing the

interior of the car and he came to know that Sagar was owner of A-1

car décor.

80] Witness further deposes that, Shantilal Modha and Jitu Modha

gave Rs. 10,000/- to Nitin Modha. He admits that he did not state

said fact before CJM. But he had stated before CJM that Jitu Modha

gave him Rs. 10,000/- for passport. The name of Shantilal Modha is

brought on record as omission. But, the fact remains on record that,

Jitu Modha paid him Rs. 10,000 for expenses. Witness further deposes

that, he along with Nitin Modha , Samantbhai Gadhvi and Ajay Gadhvi

then proceeded to Mumbai. They reached Mumbai in the wee hours of

night. In the morning Nitin Modha called his agent for ticket, they spent

night at Divya Palace at Kishimira. The witness admits that he did not

state above facts to CJM, therefore, the said facts are required to be

ignored. He further deposes that, in the morning all of them went to

agent in Kashimira, Nitin Modha paid some amount to agent. Agent told

that flight was in the night and he would get ticket in the afternoon.

Thereafter they returned Divya Palace hotel. The said facts are also

brought on record as omission. Hence, those are required to be

ignored. Witness further deposes that, Samantbhai Gadhvi received

call on his mobile that his mother was seriously ill and was called at

Porbandar. Samantbhai Gadhvi told Nitin Modha that he wanted to

return Porbandar. At that time, Approver asked Nitin Modha about his

amount, Nitin Modha told him that he would pay amount to him when

he would return back from Dubai. The said fact is simply denied by

the defence. Witness further deposes that, Nitin Modha told him that he


had to recover some amount from the party at Pune. He asked about

the name of party, but Nitin Modha told him that he would tell the

name of party after he returns from Dubai. Said part of evidence is

simply denied. Witness further deposes that, Nitin Modha gave some

amount to Samantbhai Gadhvi for the purpose of his return journey

and told him that he would return back within 10-15 days, thereafter

he along with Ajay Gadhvi and Samantbhai Gadhvi returned to Rajkot.

He dropped Ajay Gadhvi at Rajkot, thereafter he along with

Samantbhai Gadhvi came to Porbandar. Samantbhai Gadhvi gave him

Rs. 200/- and then he returned to his village Bhot and Samantbhai

Gadhvi went to his house. The said evidence of Approver is not

denied on behalf of accused Nos. 7 and 8. In fact, it is suggested by

learned advocate Shri. Bhagwat on behalf of accused Nos. 7 and 8

that, accused Samantbhai Gadhvi and Ajay Gadhvi ( A 8) had simply

accompanied accused Nitin Modha to Pune. Both of them were taken

to Pune as drivers as they were not knowing the roads. The said

suggestions were accepted by the Approver. Therefore, it can be said

that accused Samantbhai Gadhvi and Ajay Gadhvi did not deny their

trip to Pune along with accused Nitin Modha and Approver.

81] As far as second trip is concerned, the witness further deposes

that, about 15 days after reaching village Bhot, he received call from

accused Nitin Modha, who told him that he had come to Baroda and he

was called there. Accordingly, he picked up his bag and reached Bhot

approach road on highway at about 4 pm. Bus proceeding from

Porbandar to Wapi came there. Co-incidentally the driver of said bus

happened to be of his acquaintance. He told him that he wanted to

go to Baroda. He offered him a lift by saying that he might assist him

as a driver. Accordingly, he drove the bus in the night. At about 3 am,

they reached Baroda. He woke up the driver, but as he was not feeling

well, he requested him to drive the bus up to Surat. He further deposes


that, at Surat he went to the house of his brother Ramesh and took

rest. On the next day at about 12.00 noon, he received call from

accused Nitin Modha who asked him his whereabouts. He told him

that he was at Surat. Nitin Modha asked him to wait at Surat as he was

coming along with his friends to Surat. Nitin Modha also told him that

after reaching Surat they would proceed to Pune. This part of evidence

is simply denied by defence.

82] He further deposes that, three days thereafter at about 11 pm

he received call from Nitin Modha who told him that he was reaching

Surat within an hour. Nitin Modha called him at Hirabaug Circle, Varasa

road. Accordingly, he reached there at about 12 noon. After some time,

one Indica car bearing No. GJ-07/3315 came there. Nitin Modha told

him to come in the car and directed him to take car at hotel for night

stay. He told him that he wanted to take another car on rent, as he

had plan to go Goa from Pune. Accordingly he reached the hotel. In

the room of hotel, Nitin Modha told him that vehicle was owned by

Jagmal Choudhary (A 3). He was also introduced to Chhotu Ghisaiwala

( A 10), Prasad Shetty (A 2) and Chhotu Choudhary (A 4). He further

deposes that, Chhotu Choudhary was driver of said Indica. He further

deposes that, in the morning they all came to Hirabag circle. Nitin

Modha had asked them for some agent for vehicle on rent. At that

time, Dinesh Tukadia (A 9) acquaintance of Nitin, came there. He

asked him for car on rent. Dinesh told that his brother-in-law had Ciena

car. Then Dinesh went to fetch the car. At about 9 pm, they proceeded

to Pune in Indica and Ciena car. He further deposes that, they were

about six persons and in the night they halted at Hotel Divya Palace at

Kashimira, in Mumbai. Said persons were Jagmal Choudhary, (A 3)

Chhotu Ghisaiwala ( A 10), Prasad Shetty (A 2), Chhotu Choudhary (A

4) Dinesh Tukadia (A 9), Nitin Modha ( A 11) and he himself.


83] In the cross-examination he admits that the did not state before

CJM that, they were about six persons namely Prasad Shetty (A 2),

Jagmal Choudhary, (A 3), Chhotu Choudhary (A 4) Dinesh Tukadia (A

9), Chhotu Ghisaiwala ( A 10), Nitin Modha ( A 11) and he himself.

The omission is in respect of six persons and their names. In statement

before CJM, he had stated that all of them reached hotel Divya Palace.

So, the omission is not so material, because it is simply in respect of

number and names of accused.

84] He further deposes that, on next day at about 12 pm, they all

left for Pune and reached Pune at about 4 pm. They stayed in hotel

Kohinoor. In the hotel register, they were required to write their names

and addresses. He was also known by name Narayan Thakkar and

accordingly, he made entry in the hotel register as Narayan Thakkar.

This part of evidence is denied. On this point, the evidence of Raju

Shetty (PW 6) is very crucial. He is manager of hotel Kohinoor. He

deposes that, since last 30 years he is working as manager in said

hotel. Ravindra Sawant was also working as manager in the said hotel

along with him, during night shift. He further deposes that, hotel

Kohinoor is located at Chinchwad, it consists of 20 rooms. He further

deposes that, four persons were employed as room boys. They

maintain register of customers. The entries in the register were

sometimes written by the customers. He further deposes that, police

inquired with him whether six persons from Gujrat had stayed in his

Lodge. He had shown register of customer to police. He further

deposes that, on 30/7/05, while he was on duty at about 6.50 pm, six

customers came to the Lodge. One of them requested for rooms in the

Lodge. He talked with them in Hindi language. The person who

approached him for the room initially, came with one chit containing

the names of occupants written in Gujrathi. As he was knowing

Gujrathi, he told him to read the names. Then he read the names and


accordingly he entered it in the register in English and told them to pay

advance and sign the register. He , however, left, hence he sent room

boy along with register and directed him to obtain the signatures on

the register. One of them signed the register. They sent advance of

Rs. 700/-. They were possessing with them red coloured Inida car and

Ciena car. He further deposes that, on the next day when he joined

his duty the said persons were in the room. At that time, one person

approached hotel along with one girl aged about five years and

inquired about the persons from Gujrat. He told that they were residing

in room No. 19. Accordingly he went there. He further deposes that,

on 1/8/05 when he joined duty the occupants of the room No. 19 and

their cars were not there. On the same day they all checked out. They

paid necessary charges and left. He further deposes that, 15-20 days

thereafter police came there. He showed register to police. He

identified entry bearing No. 798 made in the register, in respect of

accused. He deposes that, names were written therein as told by the

customers. He identified his handwriting of the said entry (Exh. 134).

He also deposes that, the date of checking in the hotel was mentioned

as 30/7/05 and date of check out was shown as 1/8//05 at about 7.30

pm. The payment of Rs. 700/- was also made. He further deposes

that, on 6/10/05 he was called at Yerawada Jail for Test Identification

Parade wherein he identified accused Nos. 2 and 5. He also identified

accused No. 11 in the court.

85] Witness Raju Shetty admits that, identification proof of customers

is required to be taken. But, it was not taken by him. He also admits

that, on 30/6/05, room number 19 was given to six persons, but he

does not remember as to who was occupying room No. 10 on that day.

He also admits that, he does not maintain visitors register. Duty

register is maintained for room-boys. He also admits that, out of 4

room boys, 2 were in day shift and remaining 2 were on night shift.


No specific rooms were allotted to them. He also admits that, he

maintained details of vehicles of customers in the register. He admits

that, presently watchman maintains details of vehicles. Entries in the

register can be taken by any of the staff of the Lodge. His statement

was recorded on the same day when register was seized. i.e. 15-20

after the aforesaid room-mates vacated the room. The attention of

witness was drawn to the copy of register ( Article 132). There was

entry in the name of Nazir Khan in the register on 30/7/05 at serial No.

799 for room No.9 and the time was 6.30 pm. On perusal of said

entry, witness admits that he cannot tell the place from where

customer had come, without referring the register. It was suggested to

witness that, on 30/7/05 only a person by name Narayan Thakkar had

checked-in the hotel, he stayed alone and he made entry in his

name. But, the said suggestion is flatly refuted. It is also suggested to

him that the persons identified by him in the court were not seen by

him ever, but said suggestion is also denied by him. On perusal of

article 132, it appears that, in all 6 persons had checked-in on

30/7/05 and room number 19 was allotted to them and they had

checked-out on 1/8/05 at about 7.30 pm. Witness Raju Shetty is

independent witness who is working as manager at Kohinoor hotel

since last 30 years. He produced extract of register and proved it. He

had no animus against the accused. Therefore, his evidence cannot

be brushed aside, which corroborates the theory of Approver that,

when he had come to Pune second time, he had occupied room No. 19

at Kohinoor Lodge.

86] Coming back to the evidence of Approver, he deposes that, on

that day at about 2.00 pm, Jitu Modha (A 6) came along with his minor

daughter. He admits that, he did not state before CJM that, at about 8

pm, accused No. 6 had come to hotel along with his minor daughter.

The said fact is substantiated by witness Raju Shetty. He had


categorically stated that, one accused along with minor girl had come

to hotel and met the persons stayed in the room No. 19. So, it is

rightly established that when accused Nos. 2, 3, 4, 10 and 11 were

staying in Kohinoor hotel, accused No. 6 had come along with his minor

daughter to see accused Nitin Modha (A 11).

87] Approver further deposes that, Jitu Modha and Nitin Modha had a

discussing in respect of outing. It was raining at that time. Hence,

Jitu told Nitin not to come out of hotel, so that his coming to Pune

should not be known to anybody. Prasad Shetty (A 2) and Chhotu

Choudhari (A 4) used to go out by Indica and rest through Indica. All

these facts are brought on record as an omission, hence the said

facts are required to be ignored.

88] Approver further deposes that, he stayed in the said hotel for

about 3 days and said fact is substantiated by witness Raju Shetty,

who specifically stated that on 30/7/05 in the evening six customers

came to his Lodge and they checked-out on 1/8/05. He further

deposes that, after vacating the hotel, they shifted to hotel White-

house where they stayed for 3 days. There also, Jitu used to meet Nitin

at about 8 pm. Witness admits that he did not tell before CJM that,

accused No. 6 used to meet Nitin Modha at 8 pm. The omission is in

respect of time. Witness has categorically deposed that, accused

Jitu used to meet Nitin in the hotel during his stay in the hotel White-

house. To substantiate said fact, prosecution has relied on the

evidence of manager of White-house, Samal Mitra (PW 7). He stated

that, since last 20 years he is working as manager in White-house

lodge. In addition to him, there was one manager namely Shrikant

Gaikwad. His duty hours were 7 am to 8 pm. He further deposes that,

on 15/9/05 police had approached him and made inquiry whether

persons from Gujrat had stayed there. He showed the customers


register to police and told them that on 1/8/05, six persons from Gujrat

had been to his hotel and stayed there for 5 days. They checked-out

on 4/8/05 at about 9 pm. Thereafter they again came after an hour and

requested for a room. Accordingly room was allotted to them.

During the aforesaid stay at hotel, they were allotted room No. 117.

He further deposes that, on 1/8/05 these persons came to hotel at 9

pm, when Gaikwad was on duty. On 2/8/05 when he came for duty,

Gaikwad handed over him charge and told that six persons from Gujrat

have checked in room No. 117. He was told that they had 2 cars.

One was red and other was ash colour. He further deposes that, he

had seen some of the persons who came to attend the telephonic

calls. The original customer register was seized by police authority. He

was shown original register maintained by his hotel (Exh.131). He

further deposes that, entry dated 1/8/05 is in the name Narayan

Joshi r/o Surat. An amount of Rs. 650/- was paid. The date of check

out is mentioned as 4/8/05 at 9 pm. He was also shown entry No.

18344 it was in the name of Narayan Joshi. Check-in timing was

shown 10-30 pm on 4/8/05 and check out time was shown as 9.15 pm

on 5/8/05. He further deposes that, on 6/10/05 he was called at

Yerawada Jail wherein Test Identification Parade was conducted

wherein he identified accused Nos. 4,5,6. Similarly, he also identified

accused No. 11 in the court. In the cross-examination, he admits that

there were in all 46 rooms in his hotel. In the year 2005, six employees

were working in the hotel. He also admits that, the customers

register used to remain in custody of duty manager. He also admits

that, they did not maintain visitor's register. There is parking place and

customers used to park their vehicles. He admits that he cannot tell as

to how many customers by name Narayan Joshi were present in his

hotel, but he stated that, there was one customer in room No.117 by

name Narayan Joshi on that day. He was also shown entry No.18266. It

is in the name of Naran Joshi, aged 35 years, resident of Surat Camp,


room No.208. There were two persons in the said room. He was

shown entry No. 18264 in the name of Naraj Joshi, aged 34 years. He

was also shown entry No. 18344 which was in the name of Narayan

Joshi. His address was given in the said entry is not legible. On this

point, the evidence of Approver is also crucial. He has categorically

stated that, he made entry in the hotel register as Narayan Joshi,

resident of Varasa. Similar entry was made in the register , but there

were two other customers in the name of Narayan Joshi and Narayan

Jameria resident of Gujrat. It appears that, the said entries were also

made by Approver. It appears that, the Approver and other accused

persons had occupied White-house hotel in the evening of 1/8/05.

They checked-out the said hotel in the evening of 4/8/05 and again

occupied the said hotel in the night of 4/8/05 and left in the 5/8/05.

So, there are at least two entries of ingress and egress made by

Approver. Both the entries are proved by said witness Samal Mitra.

Though the evidence of Samal is denied by defence, but the document

produced by him coupled with the evidence of Approver establishes

that Approver along with other accused Nos. 2,4,9,10 and 11 had

stayed in the hotel during 1/8/05 and 4/8/05. The evidence of Mitra

substantiates the evidence of Approver on the point that he along

with other accused had stayed in the hotel White-house after leaving

Kohinoor hotel in the night of 1/8/05.

89] The Approver further deposes that, on third day at White-house

hotel, accused Nitin Modha had gone out. He had forgotten his mobile

at hotel. Between 6-7 pm, there was call on cell of Nitin Mothda. He

saw it. When he saw phone number starting from 0097, he attended

said call and told caller that Nitin Modha had gone out. The caller told

him that he should inform Nitin that Bhai had called him. After some

time, he received call on his phone from brother-in-law of Dinesh

Tukadia (A 9 ), who informed him that he requires Ciena car and


directed him to come to Surat. Witness admitted that he has stated

before CJM that on third day Nitin Modha forgotten his mobile in hotel

when he went out between 6-7 pm. The omission is in respect of

time. In the statement before CJM, witness has stated said fact, but

the exact time of departure of accused No. 11 was not mentioned

therein. Therefore, the said omission is minor in nature and does not

affect the prosecution case.

90] Approver further deposes that, at about 8 pm, Nitin Modha

came to hotel. He told him that he received call from Bhai of Dubai.

Nitin Modha got angry, he told him to leave the hotel immediately and

proceed towards Mumbai. Accordingly, they vacated the hotel.

Witness has admitted that, he did not state before CJM that accused

No. 11 got angry and told him to vacate the hotel and accordingly they

vacated hotel. Witness Samal has stated that accused left hotel in the

evening of 1/8/05. The cause of leaving the hotel is come on record as

an omission. Therefore, it can be ignored. But, the fact remains on

record that, in the night of 4/8/05 accused along with Approver left

the hotel White-house.

91] He further deposes that, he sat on the driver seat of Ciena.

Nitin Modha had occupied seat besides him. Chhotu Ghisaiwala (A 10)

and Prasad Shetty (A 2) occupied the rear seat. He further deposes

that, Nitin Modha told him that in a short time, one Santro would

come which was to be followed. Accordingly, Santro came in fast

speed, he followed said car up to Nigdi bridge, but he lost the track of

Santro after Nigdi bridge. He further deposes that, as they could not

trace Santro, they came below Nigdi bridge where Indica was

stationary wherein Chhotu Choudhary (A 4) and Dinesh Tukadia ( A 9 )

were present. Thereafter accused Jitu Modha came there. Then both

the vehicles proceeded towards Ashapura Dinning Hall. Thereafter


there was quarrel between Jitu Modha and Nitin Modha. Jitu Modha

told Nitin Modha to move Gujrat and wait for his signal. The reason

for quarrel was on account of not giving proper information about

Sagar. In the cross-examination, witness admits that he did not state

before CJM that, both the vehicles proceeded towards Ashapura

Dinning Hall where there was quarrel between Jitu Modha and Nitin

Modha on account of not giving proper information about Sagar. The

witness Samal had also referred the quarrel between Jitu Modha and

Nitin Modha in the hotel. The cause of quarrel is not stated by witness

Samal, but Approver has given cause of quarrel. But, this part of

quarrel is omission, therefore, it is required to be ignored. But, the fact

remains on record that, as per direction of Nitin Modha, Approver

chased Santro car up to Nigdi bridge, but thereafter said car

disappeared, thereafter Approver met accused Nos. 4 and 9 in Ciena

car, similarly accused no. 6 was present there. So, it can be said that

there was some plan to follow the car of Sagar in order to abduct him.

92] Approver further stated that since it was raining, Jitu Modha

told that he was unable to take Sagar for outing. Thereafter at about

11 pm, he along with other accused left for Gujrat. In the cross-

examination, he admits that, he did not state before police that Jitu

Modha told Nitin Modha that as it was raining, he was unable to take

Sagar for outing. But it appears that, accused Nitin Modha had

information that Sagar would pass from Nigdi bridge, therefore, they

followed him. So, it can be said that, accused Jitu Modha and Nitin

Modha had knowledge about the passing of Sagar from Nigdi-Pimpri

road, therefore, they followed it. So, the omission is in respect of

cause of non-availability of Sagar is not crucial.

93] He further deposes that, on the next day, he reached Surat. Nitin

Modha had no money left with him. The fare of both vehicles was to


be paid. Nitin Modha asked him about availability of goldsmith as he

wanted to pledge his ornaments. Dinesh Tukadiya told him that said

arrangement can be made. Then both the vehicles came to Hirabag.

He along with Dinesh Tukadia and Nitin Modha approached one

jeweler. Nitin Modha gave two chains to him who gave them Rs.

12,500/-, out of which Nitin Modha gave Rs. 5,000/- to Dinesh Tukadia

as vehicle fare. Actual fare was Rs. 10,500/-. Thereafter Dinesh

Tukadia went away. Nitin Modha promised him to pay rest the amount

after returning to India. Nitin Modha gave some amount to Chhotu

Choudhary (A 4). Nitin Modha also told Chhotu that he would settle his

account after sometime. He further deposes that, he then sent

Prasad Shetty, Chhotu Ghisawala to Baroda and directed them to

bring Rs.1500/- and mobile from Dinesh Lariwala. Thus, he and Nitin

Modha then left. Nitin Modha asked him to take one room in hotel.

He took room in Ashirwad Hotel at Varasa road, Surat.

94] Nitin Modha told him to stay in Surat. Nitin Modha told him that

after Prasad Shetty, Chhotu Ghisawala would return, he would

proceed to Pune again, where Sumo was sent, thereafter they would

go for outing. Nitin Modha gave him Rs. 200/-. Thereafter he came to

the house of his cousin Ramesh. Witness admits that he did not tell

before police that he and Nitin Modha only left therefrom. Thereafter,

Nitin Modha told him to take room on rent. Accordingly, he took room

in Ashirvad Lodge at Varasa road. The said omission is in the form of

description regarding stay of Nitin Modha at Surat. The said evidence

is simply denied by way of suggestion.

95] To support the evidence of Approver regarding mortgage of

ornaments, prosecution has relied on evidence of Jayesh Jogani (PW

14). According to him, he owns jewellery shop in the name of Jayesh

Jogani, Choxi. He deals in pledging of gold and silver ornaments. He


also advances loan on gold and silver ornaments. He possesses

money lending licence. Working hours of his shop are 10 am to 7.30

pm. He further deposes that, whenever customers come to his

shop, he checks purity of metal and weight and then advances money

to the extent of Rs. 60,000/- to 70,000/- on the value of metal. He

also states that at the time of pledging, he issues receipt to the

customer. Similarly, at the time of releasing the property, he obtains

receipts from the customer. According to him, police had been to his

shop in September 2005, along with Narayan Jameria. He deposes

that, Narayan Jameria along with Nitin Modha had been to his

shop, for the purpose of getting loan on gold. Nitin Modha took out

gold chains for the purpose of pledge. He checked its purity and

advanced amount of Rs. 12,500/-. He further deposes that, amount

was handed over to Narayan and the receipt was prepared in the

name of Nitin Modha. He admits that, he mentioned name of Narayan

Jameria in the receipt. About 15-20 days thereafter, Narayan had been

to his shop, he repaid Rs. 12,500/- along with interest, thereafter he

returned two gold chains to him. Accordingly, his statement was

recorded by police. He has produced on record office copy of bill issued

by him in the name of Nitin Modha and Narayanbhai (Exh.282).

Similarly, he has also proved receipt issued by Narayan in his favour

after receiving the gold ornaments from him (Exh. 283).

96] In the cross-examination, he admits that he started his business

in the year 1998-99. He was not having staff at the relevant time. He

admits that, he was aware that necessary record needs to be

maintained for the purpose of money lending business. There is no

practice of audit of money lending business separately. For the

purpose of Income-tax necessary audit is done through C.A. At the

time of renewal of licence the earlier licence needs to be shown to the

authorities. He also admits that, he maintains register containing


entries of purity , amount advanced towards loan weight of metal etc.

There is no column of signature of borrower. He also admits that, at

the time of returning metal, the entry is taken in the register. The

receipt book, bill book is maintained in duplicate, one original and one

is office copy. The signature of borrower is obtained on the bill

book. He also admits that he does not remember the exact number of

persons to whom he advanced loan against gold. Prior to this

transaction, Narayan had been to his shop on two occasions. He had

paid loan amount and received gold ornament. Narayan was a tall

person having height of 5.8 ft. He also admits that, the police had

been to his shop, they had shown photograph of Nitin Modha and

asked him whether he was accompanying Narayanbhai at the time of

pledging gold. Police did not seize register, nor he gave it to police.

From the evidence of Jayesh it is aptly established that Approver and

accused Nitin Modha had been to his shop. Nitin Modha had pledged

his two chains with jeweler and took loan of Rs. 12,500/-. The

witness has categorically stated that, he received amount of Rs.

12,500/- towards repayment of gold loan and Rs. 143/- towards

interest and accordingly, he received Rs. 12,643/-. The said receipts are

properly proved by prosecution, therefore, the story narrated by

Approver regarding pledging of gold ornaments by Nitin Modha is

established. Witness Jayesh (PW 14) has substantiated the evidence

of Approver. So, it appears from the evidence of Approver that after

leaving hotel White -house, he along with accused came to Surat

where accused Nitin Modha pledged his gold ornaments and received

Rs. 12,500/- , out of which he paid Rs. 5,000/- to Dinesh Tukadia (A 9),

Rs. 1500/- to accused Prasad Shetty and, Chhotu Ghisaiwala (A 10)

and also paid Rs. 200/- to Approver and then they dispersed to meet

again for proceeding towards Pune.

97] As far as third trip from is concerned, Approver deposes


that, three days after arrival from Pune, he received call of accused

Nitin Modha. He told him that he would reach Surat in the morning at

about 11 am, from Pune. On the same day at about 11 am, Nitin

Modha gave him call and directed him to visit Hirabaug Circle.

Accordingly, he went there he saw white coloured Sumo. Nitin Modha

told him that he has to drive Sumo. He asked him about the

documents of vehicle. Nitin Modha told that he does not possess the

documents, but he would arrange for the same from agent. He further

deposes that, Nitin Modha called his friend Khanna @ Paras of Surat,

on his mobile. He came there who took him to agent who promised

him to provide documents by paying Rs. 40,000/-, but Nitin Modha

dropped the said idea.

98] Approver further deposes that, Sumo was the same vehicle

which was owned by Bhikubhai Thanki (A 5) on which there was lien of

finance and the documents of the same were with the financier. The

said vehicle was taken by Bhikubhai Thanki to Pune. The above

evidence is simply denied by defence. He further deposes that, the

Sumo was parked in front of the house of Khanna @ Paras. He took

him and accused Nitin Modha to hotel Deepmala near Railway station

in his Ambassador car. On next day morning Nitin Modha called Paras

in hotel then they went to the place where Sumo was parked. Then

Nitin Modha broke both the number plates of vehicle and directed

Paras to take the vehicle to some painter. While they were proceeding,

he ( Approver ) received call on his mobile bearing No. 0097, the caller

told him that he had sent an amount of Rs. 20,000/- in UAE bank in his

name as suggested by Nitin Modha . Then they reached a shop of

painter. He told Nitin Modha in respect of receipt of telephone call.

Nitin Modha told him to go to UAE bank and collect the amount. He

and Chhotu Ghisaiwala (A 10) reached said bank, however at that time

working hours of the bank were over, then they returned to the painter.


The above portion is brought on record as an omission.

99] Witness further deposes that, the number plates were painted

with white paint. The painter called them in the morning as the paint

was wet. Then they dropped Paras to his house and then came to

Deepmala hotel. At about 9 am, Nitin Modha told him to come with

him to UAE Bank to withdraw the amount. Then Approver and Nitin

Modha went to said bank in Sumo. In the bank, bank officer

demanded identity proof of Approver. Approver was having identity

card of Shivsena Porbandar, he furnished its photocopy to the bank

and then Rs. 19,500/- were paid to him. Approver gave said amount

to Nitin Modha, then Nitin Modha called Paras to get the number plates

painted. He told that his brother Khaddu would take them to painter.

Then they went to the house of Paras. Nitin Modha wanted the vehicle

to be serviced. Therefore, Khaddu took the vehicle to service station.

Then Prasad Shetty (A 2) called Nitin Modha and told that his brother

Bhima and Dinesh Tukadia (A 9) had come to the hotel Deepmala.

Nitin Modha then directed them to come to service station.

Accordingly, Prasad Shetty (A 2), Chhotu Ghisaiwala (A 10) , Dinesh

Tukadia (A 9) and his brother ( Approver) Bhima came there. After

servicing the vehicle, they went to another painter and as per

direction of Nitin Modha number of Sumo was changed from GJ-11/E-

4992 to GJ-14/E-4992 was painted on the number plates of Sumo. He

further deposes that, Nitin Modha paid Rs. 5,000/- to Dinesh Tukadia

(A 9) and assured him to pay remaining amount after some time. The

said part of the evidence is also come on record as an omission.

100] On the basis of above evidence learned advocate Shri.

Koshe has vehemently submitted that, the collection of amount from

UAE Bank and change of number of Sumo is brought on record as an

omission, therefore, that evidence is required to be ignored. It is true


that, Approver did not state the above facts before CJM while

recording his statement u/s 164 of Cr.P.C. But, the fact remains on

record that, the number of Sumo was changed from GJ-11/E-4992 to

GJ-14/E-4992. On that count prosecution has produced on record the

letter issued by Regional Transport Office, Porbandar (Exh. 520),

through investigating officer Rajendra Joshi. According to Rajendra

Joshi, to verify the owner and real number of Sumo, he wrote said

letter to RTO Porbandar, in reply to it, RTO has given the original

number of Sumo used in the crime was number of Sumo was changed

from GJ-11/E-4992 and it was owned by Rubicon Industries. The said

vehicle was transferred in the name of Bhikubhai Thanki (A5) on

16/4/02. Investigating officer Rajendra Joshi (PW 54) had also sought

information from Asstt. Superintendent Ambareli, regarding vehicle No.

GJ-14/E-4992. The said RTO replied that vehicle number of Sumo GJ-

14/E-4992 was not assigned to any vehicle, hence no information was

supplied by them. So, it can be said that GJ-14/E-4992 was not

issued to any vehicle by the RTO Ambareli. When the Sumo was

seized, it was bearing number GJ-14/E-4992. Therefore, it is

established from the documents on record that Sumo was owned by

Bhikubhai Thanki (A 5) and its original number was GJ-11/E-4992 and

it was changed to GJ-14/E-4992. The document supports the case of

prosecution that Sumo owned by Bhikubhai Thanki (A 5) was bearing

No. GJ-11/E-4992 and it was changed to GJ-14/E-4992 at the instance

of accused Nitin Modha.

101] Approver further deposes that, on 13/8/05 while he was on

driving seat, Nitin Modha (A 11), was besides him and Prasad Shetty (A

2) , Chhotu Ghisaiwala (A 10) were on the rear side of the vehicle and

Dinesh Tukadia (A 9) was standing outside. Nitin Modha brought

liquor in the vehicle and except Approver everybody consumed the

liquor. At that time, Nitin Modha received some call on his cell phone,


he suddenly became angry, threw three idols of God in the front

dashboard of the vehicle. The said fact is also brought on record as

omission. But these facts are also not material, as far as allegations

are concerned. He further deposes that, Nitin Modha told him to take

vehicle immediately to Pune. Accordingly, at about 9 pm, he along with

Nitin Modha, Chhotu Ghisaiwala (A 10) and Prasad Shetty (A 2)

proceeded to Pune. It was raining heavily. The said fact is simply

denied by the defence. He further deposes that, when they reached

near Vasai approach road, alternator of the vehicle was broken at

about 3 am. All the garages were closed, hence, they waited for 3-4

hours and in the morning got repaired alternator at 4 pm, and then

they proceeded to Pune. The said facts is also brought on record as an

omission.

102] He further deposes that, at Dehuroad, diesel was filled in the

vehicle. Nitin Modha received call at about 7.30 pm, on his cell phone

and then he told him that they would reach city of Pune at 8 pm. He

further deposes that, at about 8 pm, they started towards Pune. They

passed Nigdi bridge. Nitin Modha directed him to turn the vehicle

towards Mumbai side. Thereafter he directed him to take vehicle by the

side of road. Accordingly, vehicle was taken to the side of road. Nitin

Modha, Chhotu Ghisaiwala (A 10) and Prasad Shetty (A 2) got down and

stopped at some distance from Sumo. He was told that, they would

stop one Santro in which they would take lift. Once they sit in the

Santro, he was directed to follow the Santro by Sumo. After about

10-15 minutes a Santro car came there. Nitin Modha stopped it. He

talked with the driver of Santro car for 2-3 minutes and thereafter all of

them boarded Santro car. Santro car lowered its speed at Nigdi

bridge, hence, he overtook Santro and stopped Sumo in front of Santro.

He saw that Prasad Shetty (A 2) was sitting besides the driver. In the

rear seat, Nitin Modha anad Chhotu Ghisaiwala (A 10) were sitting.


When Santro stopped near Sumo, Nitin Modha asked him as to why

he stopped Sumo. He told that since he did not know where to go,

he was stopped. Thereafter, both the vehicles proceeded further. At

some distance, Santro was stopped. Prasad Shetty (A 2) got down

from Santro and came to the right side of car and talked to the driver

of car. Thereafter he sat on the driver seat and Santro started. He

followed the Santro. This part of evidence is simply denied.

103] Approver further deposes that, due to the screen of the rear

side of windshield, of Santro he could not see anything in the car.

The said fact is brought on record as an omission, but it is not material,

because he had already stated that Nitin Modha, Prasad Shetty (A 2)

and Chhotu Ghisaiwala (A 10) had boarded Santro car. He further

deposes that, Santro stopped at some distance, he also stopped

Sumo. Nitin Modha alighted from the Santro, followed by Sagar and

Chhotu Ghisaiwala (A 10). They came towards Sumo. Chhotu

Ghisaiwala (A 10) sat in the Sumo. Sagar was also made to sit in the

Sumo Thereafter Nitin Modha sat in the Sumo. Nitin Modha then

directed him to follow the Santro driven by Prasad Shetty (A 2). At that

time, Sagar asked Nitin Modha as to where he was taken. He told

Nitin Modha that his aged mother was waiting at home. His father was

not at home. He had brought the food for his mother which was in the

Santro car. Upon this, Nitin Modha told him that the moment he gets

ransom from his father, he would be released, till that time, they would

be having outing at Khandala. Over this, Sagar asked him as to how

much amount he wanted. He also said Nitin Modha that they were

friends and such thing was not expected from Nitin Modha. Upon this

Nitin Modha stopped talking with Sagar. Santro was stopped near

Dehugaon on old highway. Nitin Modha directed him to turn the

vehicle and take it in front of Sumo. Accordingly, he followed him and

stopped the vehicle in front of Santro. Prasad Shetty (A 2) got down


along with parcel in polythene bag. He tried to lock the vehicle, but

could not lock it. Upon this, Nitin Modha asked Sagar to lock it.

Accordingly, Sagar locked the vehicle. This part of evidence is simply

denied.

104] It is the case of prosecution that Santro was found in

abandoned condition at Somatane approach road. I have already

observed that complainant Satinder Shah had stated that he formed

three groups to search Sagar. Accordingly, he sent his cousin Dhiraj

Sahani to trace Santro, who went towards old Mumbai Pune highway

and noticed Santro car at Somatane approach road. Accordingly, said

vehicle was seized by police. Therefore, the evidence of Approver is

corroborated to the case of prosecution that Santro was left in

abandoned condition on old Mumbai highway and it was seized on

15/8/05.

105] Approver further deposes that, Nitin Modha directed him to

take vehicle to Khandala via Express way. After passing toll and

Khandala, Sagar asked Nitin Modha where they were proceeding. Upon

this Nitin Modha told him that they were proceeding to Gujrat. At that

time, Nitin Modha received call on his cell phone and he talked with

somebody at Dubai. He admitted that he did not state in his

statement before CJM that, Nitin Modha was talking with somebody of

Dubai on phone. But it is mentioned in the statement that Nitin Modha

called Bhai at Dubai. So there is oral evidence that Nitin Modha had

given call to Bhai.

106] He further deposes that, at 3 am, they entered Gujrat. At

that time, Nitin Modha called Paras on mobile and asked him about

availability of his vehicle, as Sumo had no valid documents. Paras told

him that condition of his vehicle was not good. Meanwhile they passed


Surat and he started feeling dizzy. Therefore, Prasad Shetty (A 2) sat

on the steering wheel. He further deposes that, at about 8 am, they

reached Baroda on 15/8/05. Witness admitted that he did not state

before CJM that he reached Baroda at 8 am, on 15/8/05. The omission is

in respect of date. He stated in his statement that they reached

Baroda at 8 am. He categorically stated that, they started from Pune

on 14/8/05. therefore, his evidence is cognate in respect of reaching at

Baroda at 8 am on 15/8/05. He further deposes that, Prasad Shetty (A

2) stopped vehicle in some area of Baroda. Nitin Modha then called

somebody from his mobile. At that time, Chhotu Choudhari (A 4) came

there. Above facts are not stated by witness before CJM. He further

deposes that, he started driving the vehicle. He took vehicle at

village Karzan, which is at the distance of 25-30 KM from Baroda. He

requested some of his relative to provide accommodation. They were

provided rooms in a two storied building. After getting fresh and

having lunch, they left. At about 6 pm, Chhotu Choudhari (A 4) took

them to some place in Baroda. The rooms were like servants quarters.

In the evening, Chhotu Choudhari (A 4) brought food for them.

Jagmalsing Choudhary (A 3) and Chhotu Choudhari (A 4) then left. The

above portion is simply denied by defence.

107] To support the story of Approver, prosecution has relied on

he evidence of Jayantibhai Patel (PW 15) He deposes that, in the year

2005 he was running a Bidi and Tobacco shop and owned a flour mill.

He knew Arvind alias Chhotu Choudhari (A 4). he identified accused No.

4 in the Court. He further deposes that, accused No. 4 is son of his

maternal aunt. He had stayed with him for 1½ years. He was looking

after his flour mill. Thereafter he left for Baroda. The said evidence is

simply denied by the defence. He further deposes that, on 15/8/05

Chhotu Choudhari (A 4) had been to his residence. He came in a white

Tata Sumo along with some others. Along with him, two persons


came in his house. Chhotu Choudhari (A 4) told him that he along with

others came from Pune. There was some problem in the vehicle.

Therefore, they wanted to say in his home. However, he expressed his

inability as his house was small and he had some guests in his house.

He told him that 5-6 persons cannot sleep in his house. Therefore, he

approached his neighbour namely Arvindbhai. But, he was not present

in house, hence he requested his wife Manjuben to accommodate these

persons. Accordingly, Manjuben provided room on second floor of her

house. He (Witness) made arrangement of bedding for them. He

asked accused No. 4 about arrangement of food, over that accused

No. 4 told that he would bring food parcel from Karzan. Then accused

No.4 took his motor-cycle and went to Karzan and brought food parcel.

Witness gave plates. Then all the persons along with Chhotu Choudhari

(A 4) went on second floor in the house of Arvindbhai, who was

member of Swadhyay parivar. Then at about 4 pm, red coloured Indica

came there. At about 5 pm, Chhotu Choudhari (A 4) came to him and

told that they were leaving. Five minutes prior to arrival of Indica,

Sumo also left therefrom. In the cross-examination, he admits that he

alone looks after the flour mill. He runs flour mill from 2 pm to 6 pm.

At the relevant time he was staying at Kambola along with his wife.

Jayendrabhai Patel, his cousin, his wife and two children had been to

his house on 15/8/05, who are resident of Baroda.

108] Witness Jayantibhai Patel categorically stated that, on

15/8/05, he had guests in his house, therefore, he showed his inability

to accommodate accused No. 4 and his friends in his house. Witness

further admits that he had not introduced accused No. 4 to Manjuben.

Police had not come to his house. Police had come to the house of

Manjuben. Witness also admits that he along with Manjuben were not

called by police at Satkar Hotel. He was not aware about friend circle

of accused No. 4. The said evidence simply shows that police made


inquiry with Manjuben. He further admits that, police brought accused

No. 4 by covering his face with veil. On the said day, his statement

was recorded. He also admits that, after 15/8/05, accused No. 4 did

not come to his house. From the above evidence it is simply

established that witness Jayantibhai Patel is relative of accused No. 4,

who knows him (accused No. 4) as son of his maternal aunt. Therefore,

he had no animus against accused No. 4 to speak falsely. It appears

from his evidence that he gave truthful version that accused No. 4

visited his house, similarly, he described how he helped accused N o. 4

and his friends by providing them accommodation in the house of

Manjuben. The prosecution has not examined Manjuben, but evidence

of Jayantibhai Patel is sufficient to establish that accused No. 4 had

contacted him on 15/8/05 for accommodation and accordingly, he

made arrangement of accused No. 4 in the house of Manjuben.

109] Witness further deposes that, on 14/9/05, police came to

him and inquired with him regarding accused No. 4 and persons

accompanied him. Police showed him photograph of one boy namely

Sagar. He told police that said boy had come to his house along with

accused No. 4 on 15/8/05. The said evidence is simply denied by

defence. He further deposes that, on 5/10/05, he was called by police

at Yerawada Jail for Test Identification Parade wherein he identified 2-3

persons. He identified accused Nos. 2,3, and 11. In the cross-

examination by accused No. 4, he admits that Arvindbhai and

Manjuben told him that on account of his request to accommodate

guests they were required to face police inquiry. He also admits that,

he also faced inconvenience on account of police inquiry. The said

suggestions are accepted by witness Jayantibhai, which suggests that

witness had convinced Manjuben to accommodate accused No. 4,

therefore, they required to face police inquiry and caused

inconvenience. So, by the said suggestion, it is established that


witness Jayantibhai Patel had requested Manjuben to accommodate

accused No. 4 and his friends in the night of 15/8/05.

110] Approver further deposes that, in the morning of 16/8/05,

Nitin Modha left early in the morning. At about 8-9 am, he called him

on cell phone and directed him to give the mobile of Prasad Shetty (A

2). Thereafter they proceeded in Sumo near one shop at

Swaminarayan temple. Chhotu Choudhari (A 4) arranged room on 4th

floor. They went there. They had lunch with Jagmalsing Choudhary ( A

3). Food was brought by Chhotu Choudhari (A 4). He further deposes

that, Chhotu Choudhari (A 4) also brought some essential

commodities like bedding, buckets etc. They stayed there for 3 days.

Food was arranged by Jagmalsing Choudhary ( A 3) and Chhotu

Choudhari (A 4). He further deposes that, Nitin Modha used to go out

at 10 am and used to return in the evening. To support his evidence,

prosecution has relied on the evidence of Vinubhai Patel (PW 24).

According to Vinubhai, he was residing at Akota. Thereafter he shifted

to Baroda. He further deposes that, he knew Jayaben Patel, who was

his neighbour at Akota. The said fact is brought on record as omission.

He knows her brother Chhotu Choudhari (A 4). He further deposes

that, in the year 2002 he shifted to Keshavnagar, Atladarda, Baroda.

One day in the month of August 2005, accused No. 4 came to his house

in the evening. He wanted house on rent. A house on 4th floor in front

of his house was available on rent. The said house was owned by one

Rana. He told accused No. 4 that rent would be Rs. 500/-, advance of

Rs. 500/- and he would be required to pay it and his commission Rs.

300/-. On next day accused No. 4 gave him Rs. 1300/- to landlord.

Approver admits that he did not state before police that accused No. 4

paid Rs. 1300/- to Rana and he gave key of the premises to him. But it

is proved by witness that rent of the premises was fixed at Rs. 500/-

plus advance of Rs. 500/- and commission of Rs. 300/-. The payment of


rent to landlord Rana is brought on record as an omission.

111] Witness Vinubhai (PW 24) further deposes that, he

accompanied accused No. 4 and thereafter landlord rented out the

premises to accused No. 4. He further deposes that, accused No. 4

along with 4-5 persons then resided there. He had seen persons who

stayed with accused No. 4 in the said premises. They had come

along with white coloured four wheeler trax. They were also

accompanied a boy about 22-21 years old. They stayed in the said

premises for about 8-10 days. Witness Vinubhai Patel admits that he

did not state before police that accused No. 4 accompanied 4-5

persons including one boy aged about 20-21 years. But, he admits

that accused had come to his house probably on or about 15/8/05. He

also admits that he does not remember on which date Chhotu

Choudhari left the premises. He also admitted that no receipt was

issued to him. No document was executed in this respect. He also

admits that, he did not state before police that accused No. 4 came

to him and he gave him Rs. 1300/-. In fact, witness has stated that

accused No. 4 paid Rs. 1300/- to landlord. Therefore, there is no

question of any payment to witness Vinubhai.

112] Vinubhai further admits that, on 15/9/05, police from Pune

approached him. They recorded his statement. Thereafter on 5/10/05

he was called at Yerawada Jail for Test Identification Parade. In the Test

Identification Parade he identified 2 persons namely accused No. 4 and

11. In fact, on 5/10/05, accused No. 11 was not arrested, therefore,

the evidence of this witness is not correct that he identified accused

No. 11 during Test Identification Parade on 5/10/05. Witness further

deposes that, on 30/6/05, he was again called for Test Identification

Parade, wherein he identified accused No. 4 and 11. Witness has

identified accused No. 4 in the Court. Similarly, he also identified


accused No. 11 in the Court. Therefore, there is no ambiguity in the

evidence of Vinubhai. In fact, Vinubhai is independent witness, he

knew accused No. 4 much prior to the incident. He had explained how

he was knowing him. He had given correct date of visit of accused No.

4 to his house. No doubt, witness has stated that accused No. 4 along

with 4-5 persons stayed in the house of Rana for 8-10 days. It appears

from story of prosecution that accused stayed there for about 8 days,

therefore, the said omission is not material, because Vinubhai has

substantially established that accused No. 4 along with other 4-5

persons including accused No. 11 stayed in the house of Rana from

15/8/05 for 8-10 days.

113] In the cross-examination, Approver admitted that the

house at Karzan belongs to Chhotu Choudhari (A 4) who was driver of

accused No. 3. Chhotu Choudhari (A 4) joined them at Baroda.

Nobody met them at Karzan. The premises at Baroda was rented by

Chhotu Choudhari (A 4). Chhotu Choudhari (A 4) then took them to the

premises near Saminarayan temple and they stayed there from

16/8/05 to 22/8/05. The said admission speaks about the role of

accused No. 4 who made arrangement of Approver, Nitin Modha,

Prasad Shetty (A 2) , Chhotu Ghisaiwala (A 10) and Sagar at Baroda as

well as near Swaminarayan temple. The said suggestion also

corroborates the evidence of Jayantibhai Patel (PW 15) and Vinubhai

Patel, who have categorically stated that, accused No. 4 had brought

his 4-5 friends to their house and they had made arrangement for

them in the house of Manjuben and in the house of Rana.

114] Approver further deposes that, 3-4 days thereafter Nitin

Modha brought one tape-recorder along with micro cassette. Nitin

Modha told Sagar that his conversation was required to be recorded

for sending it to his father, so that he would pay the amount of ransom.


He further deposes that, Sagar told that his conversation should not

be recorded in presence of others. At that time, Prasad Shetty (A 2)

was sleeping in the room. Nitin Modha directed him and Chhotu

Choudhari (A 4) to go on terrace of the building. Accordingly, he along

with Chhotu Choudhari (A 4) went on the terrace of the building for an

hour. Thereafter Nitin Modha left along with cassette and tape-recorder.

He ( Approver ) admits that he did not state before police that Nitin

Modha told Sagar that as conversation was needed to be recorded for

sending it to his father, so that his father would pay the amount of

ransom. At that time, Sagar told Nitin Modha that he should not record

his conversation in presence of others, at that time, Prasad Shetty (A

2) was sleeping. But, Approver has stated that Nitin Modha asked him

and Chhotu Choudhari (A 4) to go on terrace and the voice of Sagar

was recorded on cassette. In cross-examination, witness admits that

he does the remember the date when Chhotu Choudhari (A 4) returned

from Pune. He admits that he came to know from Chhotu Choudhari

(A 4) that he was sent to Pune for keeping cassette in Khandoba

temple at Akurdi. To substantiate the same, the evidence of

complainant Satinder Sahani (PW 2), Sudhir Sahani (PW 3) and Suresh

Rupesha (PW 4) and investigating officer Rajendra Joshi (PW 54) is

very crucial.

115] According to complainant Satinder Sahani, on 20/8/05 at 8 am,

he received telephonic call from abductor who told him that cassette

containing voice of Sagar was kept below eucalyptus tree in Khandoba

temple, Akurdi. In fact, the said phone was received by complainant

on 19/8/05, when he was in the police station. he had wrongly given

the date of phone as 20/8/05. He further deposes that, he informed

said fact to police, accordingly, police along with Sudhir Sahani and

Suresh Rupesha went to Khandoba temple. Suresh Rupesha went in

the temple and found one box sealed wit red tape, which was handed


over to police. It was containing small audio cassette, which was

played in the police station and he identified the voice recorded in it

as of Sagar. Similar evidence is given by Sudhir Sahani (PW 3) who

deposes that on 20/8/05 complainant received telephonic call from

abductor who gave information about the cassette kept in Khandoba

temple, Akurdi. Hence, he along with Suresh Rupesha went to temple

along with police and found packet wrapped in red sticking tape,

which he picked up and gave to police. The said packet was

containing micro cassette which was played in the police station

wherein he identified voice of Sagar recorded in it. Similar evidence is

also given by Suresh Rupesha that on 20/8/05 he accompanied

complainant to Crime Branch office, at that time complainant received

call from abductor and informed him about keeping of cassette in

Khandoba temple. Accordingly, he along with Sudhir Sahani and police

went there and found cassette kept in the temple, which was played in

the police station wherein he identified the voice of Sagar. There is

discrepancy in the date of finding of cassette. Complainant, Sudhir

Sahani and Suresh Rupesha deposed that cassette was found on

20/8/05, in fact it was found on 19/8/05 and accordingly, panchanama

was prepared (Exh. 483). So, the evidence of Approver on the point of

recording of voice of Sagar by Nitin Modha and sending said cassette

to Pune, was substantiated by the evidence of complainant, Sudhir

Sahani and Suresh Rupesha. Similarly, investigating officer Rajendra

Joshi (PW 54) has also prepared transcription panchanama of

cassette. Therefore, the evidence of Approver is substantiated on the

point of recording of voice of Sagar by Nitin Modha in cassette.

116] Approver further deposes that, meantime there was

festival of Rakshabandhan. Accused Prasad Shetty (A 2), Chhotu

Choudhari (A 4) and Chhotu Ghisaiwala (A 10) went outside. He was

alone with Sagar. Sagar used to call him as uncle. He asked Sagar


whether he had any sister, he answered in affirmative. He told Sagar

that if he would have money, he would drop him Pune by Sumo. Sagar

told him that he had Rs. 5000/-, but Nitin Modha snatched it. There

was no balance in his mobile as all time was exhausted by Nitin Modha.

He further deposes that, in the evening Sagar told Nitin Modha that he

( Approver) was ready to drop him at Pune, upon which Nitin Modha

scolded him. Nitin Modha also threatened him with dire consequences.

He threatened him that by telling Bhai at Dubai he could eliminate

him and his family. The above evidence is brought on record as

omission. Therefore, it can be ignored.

117] Approver further deposes that, on next day, accused Nitin

Modha went to Baroda along with Prasad Shetty (A 2) and brought

mobile of Reliance company, for Prasad Shetty (A 2). Nitin Modha

asked him whether he need anything, but he replied in negative. The

said evidence is brought on record as an omission. Witness further

deposes that, seven days had passed. Chhotu Choudhari (A 4)

brought food and liquor. They all had food together. Nitin Modha

stayed in some other hotel in the night. He consumed liquor and woke

up at 5 am. AT 9 am, Nitin Modha came there. The said incident had

occurred on 22/8/05. This evidence is also brought on record as an

omission, because Approver admits that he did not state said facts

before CJM while recording his statement. He further deposes that, on

22/8/05 Prasad Shetty (A 2) was driving vehicle. All of them had

breakfast at hotel at Tarapur. Then they proceeded towards Anand

road. Nitin Modha then called father of Sagar from his cell phone. He

directed Sagar to talk with his father and told him that in case, amount

of ransom was not paid, he would be killed. Accordingly, Sagar told his

father that in case amount of ransom was not satisfied, he would be

killed by abductors. At that time, Prasad Shetty (A 2) snatched mobile

from Sagar and told father of Sagar that he was giving 8 hours to him


to fulfill the demand, else cut head of Sagar would be sent to him.

118] Approver admitted that he did not state in his statement

before CJM that, Sagar told his father that in case amount of ransom

was not satisfied, he would be killed by abductors. The omission is in

respect of words “killed by abductors”. He had simply stated that

Sagar told his father that if amount of ransom would not be satisfied,

he would be killed. So, the omission is not material. He further admits

that, he did not tell before CJM that Prasad Shetty (A 2) snatched

mobile from Sagar and told father of Sagar that he was giving 8 hours

to him to fulfill the demand, else cut head of Sagar would be sent to

his house. The omission is in respect of 'time of 8 hours' and 'cutting

of head'. It appears that, Approver had stated that Prasad Shetty (A 2)

snatched mobile and told father of Sagar that he was giving some

time to him to fulfill the demand, otherwise cut head of Sagar would be

sent to his home. So, the omission brought on record is also not

material, because, the sum and substance of evidence of Approver is

that, Sagar had talk with his father, mean time, Prasad Shetty (A 2)

took mobile from Sagar and had a talk with father of Sagar, whereby he

gave him short time for fulfillment of demand.

119] Approver further deposes that, Nitin Modha asked him to

take vehicle to village Chotila, where there was temple of Samunda.

When they reached near Chotila, Nitin Modha called his brother-in-law

Bhikubhai Thanki (A 5) and asked his whereabouts. Bhikubhai told

him that he was proceeding to Chotila in a tourist bus. Upon it, he

directed him to get down and book some hotel. When he reached

Chotila Bhikubhai Thanki (A 5) had booked rooms in Shrinagina hotel.

Nitin Modha, Sagar, Prasad Shetty, Chhotu Ghisaiwala (A 10) stayed in

one room whereas he along with Bhikubhai Thanki (A 5) stayed in

another room. Meanwhile Sagar was persistently asking Nitin Modha


as to when he would be freed. Nitin Modha used to tell that as and

when his father would pay the amount of ransom and call to that

effect would be received from Bhai of Dubai, he would be sent to Pune.

The said evidence is simply denied by the defence. So, according to

Approver, he had stayed at Chotila and arrangement was made by

Bhikubhai Thanki (A 5).

120] To substantiate said evidence, prosecution has examined

Yogesh Jaiswal (PW 13). According to him, he owns guest-house viz.

Shri Nagina Guest-house. There are 19 rooms in all. In the year 2005,

he had employed two persons namely Bharat and Naresh. He further

deposes that, he used to enter names of customers in the register as

told by them. Similarly, he used to obtain signatures of customers on

the register. The amount of advance paid by customers is also used

to be mentioned in the register. He further deposes that, on 15/9/05

Maharashtra police had been to his guest-house along with two veiled

persons. By removing veil of one of the persons, he was asked by

police whether the said person had been to his guest-house. He took

out register. The veiled person whose veil was removed, had shown

entry from the register, in respect of visit at guest-house on 22/8/05. At

that time, accused told his name as Bhikubhai Thanki. According to

him, he made entry in the register and obtained his signature. He had

given room no. 14 to the customer. He further deposes that, Tanki

demanded another room by telling that his other guests were coming

to hotel. His guests arrived in the hotel at 9.30 to 10 pm. They came in

Sumo. He deposes that, he used to record number of vehicle of

customers, who come to his hotel. While parking Sumo, driver had

dashed the iron railing, hence he told him to park vehicle carefully.

There were 4-5 persons who came in Sumo. In respect of these person,

the entry in the name of Vikas bhai was made. He made entry. It was

signed by person who gave his name as Vikasbhai. Police seized 2


registers from his guest-house ( Exh. 161, 162). He further deposes

that, number of Sumo was mentioned in the register as GJ-14/E-4992.

The entry was made by the person who came in Sumo. One of the

persons who came in Sumo was having gold quoted tooth, but he

showed his inability to identify other person. He further deposes that,

he was called at Pune for Test Identification Parade, wherein he

identified some accused. But, he does not remember as to how many

accused he had identified in Test Identification Parade. Witness has

identified Bhikubhai Thanki (A 5) in the Court.

121] In the cross-examination, he admits that, he was not

possessing licence for his guest-house. He had applied for the same.

Police used to visit his hotel once in a while to check the register. he

was not prosecuted for not possessing licence. He used to maintain

the registers as per the rules. He was aware that printed register is

required to be maintained at Hotel . He also admits that at the relevant

time he was not maintaining printed register. He had maintained bill

book. At the relevant time he was not maintaining muster register and

duty register. he had engaged manager for his guest-house, by name

Sanjay bhai. He further deposes that, at the time of evidence he had

employed 4 managers in his hotel for different shifts. He also admits

that, rooms were not fully occupied every time. It is difficult to

remember the description of guests who stayed in hotel on given date.

Witness also admitted that in register (Article 161) vehicle number is

not mentioned. The number of occupant is mentioned as “3”. He

also admits that, in the register (Article 161) there is column in

respect of number of vehicle. He admits that, there is no entry in

respect of checkout hours. Witness volunteers that these columns are

mentioned in register ( Article 161). In the register (Article 161) the

entry was in the name of Bhikubhai Dayaram. There is no entry in the

name of Bhikubhai Thanki. In fact, the name of Bhikubhai Tanki is


Bhikubhai Dayaram Thanki. So, his surname is not mentioned in the

Register ( Article. 161). But, the name of accused and his father's

name is correctly mentioned. So, there is no ambiguity in the said

entry. Witness further admits that, room number 113 was changed to

114 in the said register. In the register ( Article 161), checking out

time and vehicle number is not mentioned. He admits that in register (

Article 162) , check out time is not mentioned. So, from the said

admission, it appears that, entries in registers (Articles 161, 162) were

made at the instance of Bhikubhai Thanki and somebody else who gave

his name as Vikasbhai. But witness has categorically stated that,

guests of Bhikubnai stayed in two different rooms. The Approver has

categorically stated that, he along with Bhikubhai Thanki (A 5) and rest

of accused stayed in different rooms. So, evidence of Yogesh has

substantiated the evidence of Approver on the point of his stay along

with other accused at Shri Nagina guest-house.

122] Witness further admits that, in register ( articles 161, 162),

the last entries were made dated 4/9/05. He admits that, there are no

signatures of himself and panchas on the page wherein entries of

22/8/05 were made. It was suggested to him that on 4/9/05 police

came in the hotel and seized register, therefore, there are no entries in

the said register after 4/9/05. Witness admits that he started new

register on 5/9/05. On the basis of said admission, learned advocate

Shri. Koshe has vehemently submitted that, the register was seized

prior to 5/9/05, but it was shown to have been seized on 15/9/05. it

appears that, ATS Gujrat apprehended some accused including

Approver on 5/9/05, therefore, there is possibility that register of guest-

house might have collected by police on 5/9/05, therefore, witness

Yogesh was required to start new register on 5/9/05. It appears from

the evidence of Yogesh Jaiswal that police had come to his guest-

house along with two persons and ATS Gujrat had seized extract of


register ( Articles 161, 162). Witness has categorically stated that, one

of the guests who came in Sumo has gold quoted tooth. The said fact

is not specifically denied. Witness has categorically described the said

person with specific identification mark. The Approver had gold

quoted tooth. Therefore, it can be said that witness has identified

accused No. 5 and Approver, as his guests, on 22/8/05.

123] Approver further deposes that, they left Chotila at about 4

pm. On the way, Prasad Shetty (A 2) used to threaten Jagmalsing

Choudhary ( A 3) . He deposes that, Chhotu Choudhari (A 4) told him

that he was sent to Pune by Nitin Modha for dropping cassette at some

Khandoba temple. He further deposes that, Chhotu Choudhari (A 4)

narrated the incident of dropping cassette to Pune to Jagmalsing

Choudhary ( A 3). He was told by accused No. 10 that Jagmalsing

Choudhary ( A 3) had plans to disclose about the abducting to police.

Accused No. 2 was, therefore, threatening Jagmalsing Choudhary on

mobile. The said evidence is denied by defence. In the cross-

examination, Approver admits that he does not remember the date

when Chhotu Choudhari (A 4) returned from Pune. During the stay of 7

days, he had consumed liquor for 2-3 times. It was suggested to him

that on the occasion of consuming liquor, he alone was with Sagar, but

said suggestion is refuted. By the said suggestion, it is impliedly

admitted that Approver had consumed liquor for 2-3 times and he was

in the room along with deceased Sagar. So, it can be said that

Approver used to stay along with deceased Sagar when they used to

stay in hotels or guest-house.

124] It is further deposed by Approver that, in the night of

23/8/05 they stopped at a place called Sarkhas near Ahmedabad in

some hotel. Two rooms were booked in hotel. Nitin Modha, Chhotu

Ghisaiwala (A 10) and Sagar stayed in one room and he and Prasad


Shetty stayed in another room. Next day they left at 3 pm. At that

time, Nitin Modha told Sagar that on that day he would be released

after receiving phone call from Dubai. He further deposes that, they

proceeded Pavagad, however Chhotu Ghisaiwala (A 10) told that police

security near Pavagad is strong and they were not possessing

documents of vehicle. Hence, they turned back and proceeded

towards Anand. In the cross-examination, witness admits that he does

not remember the name of hotel where they stayed at Sarkhas.

Theabducted boy did not stay with him for the night. He did not know

about the conversation of Sagar took place in the said night. He

further deposes that, on 25/8/05 at 3 am, they left hotel at Sarkhas.

He was driving the Sumo. So, the visit of Approver to hotel at Sarkhas

is impliedly admitted by suggestion to witness that he does not

remember the name of hotel where they stayed at Sarkhas. Similarly,

it is specifically suggested that they left Sarkhas at 3 pm on 25/8/05

and Approver had admitted it.

125] Approver further deposes that, they went to Chikodrachokadi.

There was hotel of his friend Pravinbhai Patel. They took food there. He

had a word with the owner of hotel for arranging a room. At that time,

Nitin Modha noticed 5-6 police in the garden of hotel. He doubted that

they were from Pune. Therefore, he told them to pack up and leave

immediately. The said evidence is denied by the defence. In the cross-

examination of approver, on page No. 45, he admits that on 24/8/05 he

came to know that police of Pune were searching them. Witness

volunteers that the said fact was told to him by Nitin Modha. It was

also suggested to witness that when he came to know that police were

searching them, he did not decide to part from the company of other

accused. Said suggestion is also refuted. It was further suggested to

him that he had taken the vehicle to hotel of Parvinbhai Patel near

Sikodra chowky and then at 12 in the night to 1 am, they left for


Pune. At that time, he had no documents of Sumo. These

suggestions impliedly prove that after having doubt about police

personnel, Approver and other accused decided to leave hotel at

Chikodrachokadi and they proceeded towards Pune. So, the suggestion

also substantiates the evidence of Approver.

126] Approver further deposes that, at 3 am, on 25/8/05, they

stopped at hotel Bhagyodaya which was on the way to Wapi to Balsad.

At about 10 am, suddenly Gujrat police entered in to hotel and checked

his baggage. At that time, Nitin Modha told police that they were

tourist and proceeding to Bhavnagar. He further deposes that, they

left at about 4 pm and reached Wapi. In the cross-examination,

Approver admits that they stayed Bhagydaya hotel on highway No. 8

for about 12 hours. He reached hotel at 4 pm on 25/8/05 and

proceeded on highway No. 8 and reached hotel Wapi at about 5 pm.

The said admissions re-iterates that Approver and co-accused had

been to Bhagyodaya hotel on 25/8/05, they stayed there for 8 hours

and then they proceeded to Nasik road. It was also suggested that

they had stopped at hotel after place called Kaprala at Nasik road at

about 7 pm and they stayed there for about half an hour.

127] On this point, prosecution has relied on the evidence of

Shantilal Wasava (PW 21), who was working as police constable at

Wapi, GIDC police station. He deposes that, in the year 2005, he was

attached to Wapi, he was on general duty. On 25/8/05 while he was at

home, he received call from driver Rajubhai who was driver on highway

Patrolling Mobile Van. He informed him that a dacoity occurred at

village Udwada within jurisdiction of Pardi police station. He was also

informed that ASI was murdered in the said dacoity. He was

immediately called on duty, therefore, he rushed to Dharampur police

chowky. Driver Rajubhai came there, then they proceeded to village


Udwada. Mobile Van was parked there at Khadaki area. They

received message on wireless to reach Pardi police station, accordingly

they went there. PI Mr. Erada, Local Crime Branch was present there.

He directed him to proceed with PSI Kalsawaa for patrolling duty on

highway to search residents of Godhra, Jambuwa who usually wear

lungi and banian and indulge in crime of dacoity. They reached NH No.

8. At a distance of about one KM, there was Bhagyodaya guest-house.

He went there. PSI Kalasawa parked jeep in front of said guest-house

and directed them to go inside and check. Accordingly, he went to the

hotel along with Ishwar Chimanbhai and Rajubhai.He directed manager

to show the register of hotel, who accordingly showed it to them and

told that some persons had stayed in room Nos. 104 and 106. They

went to room No. 104. Two persons were inside the room. On inquiry

with them, they told that they were businessmen from Ahmedabad.

Then they went to room No. 106, the person who opened the door was

driver of Sumo and the persons in room were from Pune and they were

proceeding to Ahmedabad. Since they were tired in the journey, they

halted there. One of them had a tooth with golden cap and one of

them had French cut beard. Another person was short in height. A

boy of fair complexion approx. aged about 20-21 age was also

accompanied with them. There were two tall persons in the room. They

said that they were students. He checked luggage, but did not come

across any suspicious articles. Accordingly it was told to PSI, who

directed them to again check the persons . Then they again went to

room Nos. 104 and 106 and told PSI that the Sumo parked in front of

guest-house was of the persons staying in room No. 106. Thereafter

they proceeded for patrolling.

128] Shantilal Wasava (PW 21) further deposes that, on 20/9/05

officials of Pune Crime Branch came to Wapi GIDC police station and

showed him a photograph of a person. He told them that it was the


photograph of a boy to whom he had seen on 25/8/05 at Bhagyodaya

guest-house along with other persons. The police officers told him

that the name of said boy was Sagar Sahani who was abducted on

14/8/05 and murdered even after receipt of ransom of Rs. 15 lacs. He

further deposes that, on 6/10/05 he was called at Yerawada Jail for

Test Identification Parade, wherein he identified two persons out of 14

persons. I also identified one person from amongst 7 persons in

another round of Test Identification Parade. Witness has identified

accused Nos. 2 and 8 in the Court as the persons whom he had seen in

hotel Bhagyodaya. Similarly, witness has also identified accused No.

11 as a person to whom he had seen in the said hotel.

129] In the cross-examination, witness Shantilal admits that,

there were no written order issued to him by his superiors to inspect

the guest-house on 25/8/05. While proceeding for patrolling duty,

they did not make make any entry in the station diary. The entries

were made by driver in the log book of the vehicle. He does not recall

the number of Mobile Van used by him. On this point, it is pertinent to

note that, witness has specifically stated that on 25/8/05 he was at

home, he was called for patrolling as there was incident of dacoity

wherein ASI was murdered. He had visited Udwada police station and

thereafter he was specifically directed by PI Mr. Erada of Local Crime

Branch, to proceed on patrolling duty on highway, so there is no

written order to witness to attend patrolling duty on highway. He

further admits that, he had inspected hotels and guest houses such as

Bhagyodaya, Sarvodaya, Aram and Kathewadiya etc. He also admits

that, he had been to Sarvodaya hotel at 11 to 11.30 am. He

categorically stated that, he cannot tell the name of persons whom he

met there. By the said suggestion, it appears that, witness has visited

hotels Bhagyodaya, Sarvodaya, Aram and Kathewadiya etc., on 25/8/05

and took search. He could not give names of persons whom he met


there. He further admits that, he cannot tell the number of rooms he

checked in the said hotels. He also admits that he cannot tell from

where the persons in the rooms of hotel Sarvodaya had come from. He

also admits that, he cannot give the description of occupants of that

hotel. He further admits that, he cannot give the description of

occupants of that hotel. He admits that he had been to hotel Aram at

about 12 noon to 12.15 pm. He cannot tell the numbers of rooms in

that hotel. The witness had deposed in the Court on 10/11/11, whereas

he had taken search of hotel in the month of August 2005. Therefore, it

was not expected from him to disclose the number of rooms he visited

and number of persons he met and made inquiry. However, witness

has categorically stated that, he had visited Bhagyodaya, Sarvodaya,

Aram and Kathewadiya etc. hotels on that day and took search.

Similarly, witness has stated that person he identified has different

features, namely, french cut beard and gold cap tooth. Therefore, he

could remember said person.

130] Shantilal Wasava (PW 21) further admits that, in

Bhagyodaya hotel, he met manager, but he cannot tell his name. He

checked the entries in respect of room Nos. 104 and 106. He also

admits that, he cannot tell the number of persons occupied in the

rooms, but he volunteers that manager told him that only room Nos.

104 and 106 were occupied by the customers. It is also stated by

witness in his examination-in-chief that on inquiry, manager told him

that the guests were in room Nos. 104 and 106, accordingly he had

been to those rooms. So, it is established that on 25/8/05, there were

customers in the Hotel in room Nos. 104 and 106. He further admits

that, guest-house was having 10 rooms on first floor. The guest-house

consists of ground plus one floor. He doesn't remember the name of

owner and he did not check each and every room. He was in the hotel

for about 20-25 minutes. He did not give any written report on 25/8/05


to police station about the patrolling. The said part of evidence is aptly

proves that witness had been to hotel Bhagydaya. He categorically

admitted that he was there for 20-25 minutes. The details of visit

disclosed by witness show that he had been to there for 20-25

minutes to inquire with the customers in the hotel.

131] Shantilal Wasava also admits that he does not remember

whether he had told police that person who opened door told him that

he along with other persons come from Pune and they were proceeding

to Ahmednagar and they stayed in the hotel as they were tired in the

journey. The said portion of evidence is brought on record as an

omission and it is not material.

132] Witness further admits that he cannot tell the exact number

of hotels and guest-houses inspected by him on that day. He further

admits that he inquired with 50-60 persons on that day. At the time of

patrolling and inspection, three persons accompanied with PSI

Kalasawa on some occasions. He also admits that, entry was not

made in Duty Register in respect of his proceeding on patrolling duty.

On account of incident of murder of ASI, they suddenly proceeded on

patrolling. As I have already observed that the witness was called

urgently by his superior, as there was murder of ASI at Kudwada police

out post. Therefore, it appears that, entry was not made in the station

diary about his patrolling duty.

133] Witness Shantilal Wasava further admits that, he had made

noting about incident occurred on 25/8/05 in his diary. The said diary

was required to be deposited in the police station. He admits that, he

does not recall whether he had deposited his diary in police station.

In 2006, he was posted at GIDC police station, Wapi, hence he cannot

say whether said diary was traceable or not. He also admits that,


he does not recall the names of PI Crime Branch who visited GIDC

police station Wapi. The said admissions are not crucial, therefore,

those are required to be ignored.

134] Witness Shantilal Wasava also admits that, he did not tell

before police that the persons in room No. 104 told him that they were

businessmen from Ahmedabad The said omission is not material. But,

the fact remains on record that, due to inquiry made with the

customers, witness was satisfied that they were not connected with the

alleged dacoity committed at village Udwada. Therefore, he did not

made much inquiry with the inmates of the room.

135] Shantilal Wasava (PW 21) also admits that, he does not

remember whether he had told police that after checking the rooms on

second occasion, he told PSI Kalaswa that Sumo parked in front of

hotel belongs to the customers. The said omission is also not so

material, because witness had been to the hotel for making inquiry

about the inmates of hotel. Therefore, he must have made some

inquiry with them in order to satisfy that they were not connected

with the dacoity and accordingly, he formed his opinion on the basis of

information given by them that they were not concerned with the

offence of dacoity.

136] It was suggested to him that at GIDC police station Wapi

police had shown him several photographs, but he denied the said

suggestion. But he volunteers that police had shown him photograph of

one boy aged about 20-21 years whom he had seen at Bhagyodaya

hotel. He described said boy as of fair complexion. He further deposes

that, on 6/10/05, he had been to Pune along with officers of Crime

Branch and stayed in some hotel for one day. He had been to

Yerawada Jail with police. On the basis of said evidence learned


advocate Shri. Koshe submits that, witness was taken by police to jail

for Test Identification Parade, therefore, the Test Identification Parade is

under cloud. But, I am not inclined to accept the said submission

because, witness was resident of Gujrat , he had no idea about the

location of Yerawada Jail, therefore, he must have been taken to

Yerawada Jail by police. Similarly, Test Identification Parade was made

in the Yerawada Jail. Witness was allowed to enter in the jail with the

help of police, but the officials of investigation team, were not allowed

to enter in Yerawada Jail. Therefore, merely because witness was taken

to Yerawada Jail by police for Test Identification Parade, his evidence

regarding identification of accused does not affect any way.

137] It was also suggested to the witness that police gave him

information in respect of persons to be identified in Test Identification

Parade and showed him their photographs. Said suggestion is strongly

refuted. The evidence of witness is denied by defence, but on going

through the evidence of witness Shantilal Wasava, it appears that, he

was asked to join patrolling duty on 25/8/05 as there was incident of

dacoity wherein ASI was murdered. He was chance witness of

prosecution. It appears that, he had been to hotel Bhagyodaya where

he had seen accused along with abducted boy as of fair complexion

aged 20-21 years and he had given his description and description of

two persons as one having gold quoted tooth and other person having

French cut beard. Therefore, it can be said that this witness has

supported the story of Approver on the point of visit of police at

Bhagyodaya hotel and making inquiry by them with accused persons.

138] Approver further deposes that, they left hotel Bhagyodaya at

3-4 pm and reached Wapi. Accused Nitin Modha asked him to take

vehicle to Nasik. On the way vehicle was stopped. Accused Prasad

Shetty (A 2) and Chhotu Ghisaiwala (A 10) went to hotel, but he


stayed along with Sagar in Sumo. Accused Nos. 2, 10 and 11 had

snacks in the hotel and they sent cold drink for him and Sagar in the

vehicle. On inquiry by Sagar, he told him that they would reach Pune in

5 hours. He did not take food in the said hotel. Thereafter they reached

Gujrat border. He was driving vehicle at that time, Nitin Modha directed

him to turn the vehicle as there was risk on the check-post of the said

raod. Nitin Modha told him that they should go to Pune via Express

highway. This part of evidence is simply denied. But, in the cross-

examination, it was suggested to him that after leaving hotel

Bhagyodaya, he and other accused persons proceeded further on

highway and said suggestion was refuted by witness. Similarly, witness

admits that after proceeding towards Nasik road, they had stopped at

hotel near Kaprala on Nasik road. The evidence of Approver on that

count is substantiated by the suggestions by defence.

139] Approver further deposes that, they passed the hotel where

they had already stopped. He had noticed that vehicle was passing

through dense forest. He was driving said vehicle. Nitin Modha was

sitting besides him on front seat and he noticed that Prasad Shetty (A

2) was sitting in the middle seat, shifted to rear seat of vehicle. Nitin

Modha then took out knife from below the seat and handed over to

Prasad Shetty (A 2) . He asked Nitin Modha as to why he took out knife.

Nitin Modha told him that in case police comes, Prasad Shetty (A 2)

can throw the knife out of the vehicle. He further deposes that, Prasad

Shetty (A 2) kept the knife on the throat of Sagar and at that time,

Sagar told that “Nitin please do not kill me. If the amount paid by his

father is less, he can arrange for more amount”. The said part of

evidence is simply denied. Witness further deposes that, he then

stopped the vehicle. The lights inside the vehicle was on. He turned

behind and saw that Prasad Shetty (A 2) cutting the throat of Sagar.

Witness admits that he did not tell before CJM that light inside the


vehicle was on and he turned his head behind and saw Prasad Shetty

(A 2) cutting the throat of Sagar. In fact omission is in respect of he

'turning' his head behind. The witness has categorically stated that, he

saw Prasad Shetty (A 2) cutting throat of Sagar in the jeep. Witness

further deposes that, Chhotu Ghisaiwala (A 10) had caught hands and

legs of Sagar and Nitin Modha was sitting besides him on front side,

turned around to hold Sagar. The Approver has specifically stated

that there was pool of blood in the car which reached to his leg. On

this point, opinion of Dr. Harjit (PW 43) is crucial. He has categorically

deposed that, there was profuse loss of blood, due to which

deceased suffered hemorrhagic shock. The evidence of Doctor has

substantiated the evidence of Approver on the point that there was

profuse bleeding from the wound of Sagar and there was pool of blood

in the car and blood reached to his leg. It shows that there was much

loss of blood from the body of deceased Sagar, which was one of the

causes of death.

140] Approver further deposes that, Nitin Modha then directed

him to take vehicle ahead. After some distance, Nitin Modha directed

him to take vehicle by the side of road. Nitin Modha then got down

from the left side of the front seat, he opened rear door of the vehicle.

At that time, Chhotu Ghisaiwala (A 10) gave head portion of Sagar in

the hands of Nitin Modha, Prasad Shetty had held legs of Sagar. Nitin

Modha and Prasad Shetty then threw dead body of Sagar in the forest.

He further deposes that, accused No. 10 was standing near the

vehicle and he was holding bloodstained clothes in his hand. He was

cleaning the same. After throwing dead body in the forest, Nitin Modha

and Prasad Shetty (A 2) returned to vehicle. Nitin Modha then sat

besides him on front seat. Prasad Shetty (A 2) and Chhotu Ghisaiwala

(A 10) sat in the middle seat. Then Nitin Modha asked him to drive

vehicle. The clothes of Nitin Modha were stained with blood. He took


out clothes on his person near the place called Kaprala and also threw

clothes of Sagar from the vehicle. In the cross-examination he admits

that he did not state before CJM that Chhotu Ghisaiwala (A 10) was

standing near vehicle and he was holding bloodstained clothes in his

hand. He was cleaning the same. He also admits that, he did not

state before CJM that Nitin Modha then directed him to take vehicle

towards Baroda. In fact, witness stated that Nitin Modha told him to

take vehicle ahead. The said evidence is simply denied by the defence.

Witness further deposes that, Chhotu Ghisaiwala (A 10) asked Nitin

Modha whether he had taken gold chain and gold bracelet from the

person of Sagar. At that time, Nitin Modha showed him chain and

bracelet of Sagar. Nitin Modha asked Prasad Shetty (A 2) whether he

had finished Sagar. Over it Prasad Shetty (A 2) told that his attempt

to kill is never futile. “izlkndk okj dHkh [kkyh ugh tkrk”. He further

deposes that, he took vehicle towards Baroda. Nitin Modha threatened

him that in case he discloses the incident to anybody, he would make

the same fate like Sagar. He further deposes that, they came to Surat,

he was directed to stop the vehicle near petrol pump. Prasad Shetty (A

2) and Chhotu Ghisaiwala (A 10) washed vehicle with hose-pipe. They

threw matting of the vehicle and also shoes of Sagar. Thereafter diesel

was filled in the vehicle and they proceeded further.

141] Witness further deposes that, at about 3 am, they reached

some hotel on highway near Karzan. All had food in the said hotel. He

had only taken water Thereafter Prasad Shetty (A 2) sat on driving

wheel and stopped vehicle at garage at Balsad. On next day at 7

am, they left for Baroda. Nitin Modha directed him to take Sumo to

some hotel. Nitin Modha also told that they wanted to go to collect

the money sent by Bhai from Dubai. They accordingly proceeded along

with accused No.10. He further deposes that, Prasad Shetty (A 2)


took vehicle to Siddharth Hotel where he took room on rent. In the

room, he washed his bloodstained clothes. At about 12 noon, Nitin

Modha also came there.

142] In the cross-examination, he admits that, he did not tell

before CJM that on next day at 7 am, they left Baroda. Nitin Modha

directed him and Prasad Shetty (A 2) to take Sumo to some hotel. He

also admits that, he did not tell before CJM that Prasad Shetty (A 2)

took vehicle to Siddharth hotel where he took room. Though the said

facts are brought on record as omissions, but the prosecution has led

evidence of Ashish Pande (PW 10) who was manager of hotel

Siddharth, specifically deposed that in the year 2005, he was working

as manager at Siddharth hotel. There were 4 managers. Two of them

were working in day shift and remaining two in night shift. At the

relevant time he was working in night shift. There were 24 rooms in

the hotel. He deposes that, they maintained register of customers in

which entries are to be made by customers. The entries such as

ingress and egress, room number and amount of advance were made

by hotel staff. They also used to record number of vehicle of the

customers. He further deposes that, on 15/9/05, PI Rajendra Joshi

(PW 54) had been to their hotel and inquired in respect of stay of

accused in the hotel. He had shown the customer register to him.

He had brought original register along with him. He was shown entry

dated 26/8/05. The entry No. 257 was in the name of Pradeep Pille and

Narayan Joshi. The date of arrival was mentioned as 26/8/05 and time

was 8.30 am. He further deposes that, at the relevant time he was on

duty. In the register he made entry in respect of advance of Rs. 400/-,

room No. 203 and vehicle No. GJ-14/E-4992. He further deposes that,

customers left hotel at about 10.45 am on 26/8/05. PI Rajendra Joshi

(PW 54) took original of registers page Nos. 32,33 and inserted

photocopies thereof in original. He had also taken photocopies of


entire register with him. Witness has identified entry No. 272 which

was in the name of Pradip Pille and Narayan Joshi.

143] In the cross-examination, he admits that Hotel Siddharth is

owned by Shyam Agarwal. He did not hand over copy of appointment

letter to police. He also admits that, original register remains in the

custody of hotel. He does not recall the exact number of staff working

in hotel in 2005. He also cannot say as to who was manager in day

shift at the relevant time. The above evidence is on the point of

management of hotel. The witness was serving in hotel is not denied.

He gave evidence in the month of September 2011 and the alleged

incident has taken place in 2005. Therefore, it was difficult for him to

recall the names of other members who were present at the relevant

time. Therefore, the said admissions are not significant.

144] He also admits that, the entry in respect of number of

vehicle is recorded in pencil. At entry No. 257 there are entries in

pencil at name, address and signature column. These are not in his

handwriting. On the basis of same, learned advocate Shri. Koshe has

vehemently submitted that, there is manipulation in entry No. 257.

Some extraneous material was added in the said entry by pencil. The

witness has not admitted the writing is of himself. It appears that,

vehicle number is in pencil. There is marking as F-157 (4A) (4) (5) in

pencil. It appears that, the said marking was done by investigating

officer for referring the entry to Handwriting Expert. Except vehicle

number, other contents of entry No. 257, are in ink. Therefore, it cannot

be said that entry No. 257 is false, bogus and manipulated.

145] Witness further admits that, entry No. 257 was prepared by

manager who was on duty at the relevant time. He is still there. He

had given copy of bill to police. He does not remember whether


copy of licence was given to police. Police did not give any

acknowledgement to him. The said evidence is also not material

because prosecution had produced on record the original entry of

customer made at serial No. 257, which shows that it was in the name

of Pradip Pille and Narayan Joshi. Witness has admitted that there was

no attestation by police at Exh. 257. Entry in that respect is at last

page of the register. Police did not seize any register. The said

admission is also not material because concerned page of the register

was seized in presence of Sunil Rajput (PW 11), who has categorically

stated that, on 16/9/05 he was called at Siddharth hotel along with his

co-employee Philips Fernandes. He was requested to witness

panchanama. Some veiled persons were with police. A veiled person

was taken to reception counter, his veil was removed. He was shown

register. He identified his signature in respect of entry in the register .

Police removed the relevant pages in respect of the said entry and

replaced photocopies thereof. The said pages were seized in presence

of panch witnesses. Witness has identified the said pages (Exh.272).

He further deposes that, It bears his signature at serial No. 2 on page

33. police conducted panchanama in his presence (Exh. 274). His

evidence is denied. He admits that police requested him to sign

panchanama, accordingly, he signed it. But the said admission does not

mean that he simply signed the panchanama to oblige police. He

admits that he does not know what was written by police in Marathi. He

admits that, it did not happen that, police prepared a set after taking

the original papers from the register, seized it and sealed the same.

He also admits that, police did not keep the original papers taken from

the original register and kept it in the envelope and sealed the same.

But witness Pande has identified the page of register (Exh. 272.

therefore, the admission given by panch Rajput has no legal

significance. His evidence is on the point that police came to hotel

Siddharth and seized page of register in his presence which was


shown by accused. Therefore, on going through the evidence of Ashish

Pande coupled with the evidence of Sunil Rajput, it is established that

on 26/8/05, room No. 203 was occupied by Pradeep Pille and Narayan

Joshi, who arrived in the hotel at about 8.30 am and they left hotel at

10.45 am, which substantiates the evidence of Approver on the point

of stay of accused in hotel Siddharth in the morning of 26/8/05.

146] Witness further deposes that, Nitin Modha told him to

collect money sent by Bhai from Dubai. Accordingly he proceeded

along with accused No.10. Witness admits that he did not tell before

CJM that accused Nitin Modha proceeded with accused No. 10 for

collecting money. The omission is in respect of word 'Chhotu

Ghisaiwala'. It means, Approver had stated before police that Nitin

Modha left hotel to collect money. Therefore, the said omission is not

significant. Approver further deposes that, at about 12 noon, Nitin

Modha and accused No.10 came in the hotel. Nitin Modha threw three

bundles of currency notes containing Rs. 50,000/- each on the bed. He

told them that Rs. 50,000/- each were for him, Prasad Shetty (A 2)

and Chhotu Ghisaiwala (A 10) respectively. Accordingly, Prasad Shetty

(A 2) , Chhotu Ghisaiwala (A 10) and he received Rs. 50,000/- each.

Then they left the hotel. He further deposes that, Nitin Modha asked

him to take Sumo which he refused. He told him that he wanted to go

to Surat. Prasad Shetty (A 2) and accused No. 10 told him that they

wanted to stay in Baroda. Thereafter he and Nitin Modha walked

towards bus stand at that time Nitin Modha told him that he wanted to

go to Porbandar. Nitin Modha also told him that since Bhai from Dubai

had sent less amount, he needed Rs. 30,000/-. Accordingly, he gave

him Rs. 30,000/- out of Rs. 50,000/-. He admits that he did not state

before CJM that, Nitin Modha told that Bhai had sent less amount,

hence he needed Rs. 30,000/-, hence, out of Rs. 50,000/- he paid Rs.

30,000/- to him. The said omissions are material. But witness has


categorically stated that, he paid Rs. 30,000/- to Nitin Modha as per his

demand. Therefore, it can be said that, there was distribution of

money. Thus, the said transaction is very crucial. So, it is important to

know whether Nitin Modha had really received the amount which he

alleged to have been distributed amongst himself, Approver, Prasad

Shetty (A 2) and Chhotu Ghisaiwala (A 10).

147] To prove the receipt of amount to Nitin Modha, prosecution

has heavily relied on the evidence of Vishnubhai Patel (PW 30).

According to him, he is working as manager with Vishnubhai Kantibhai

Angdia at Sultanpura, Baroda. His firm is having about 40 branches

throughout Gujrat, Mumbai and Delhi. The Firm deals with transfer of

money, sending couriers, parcels etc. Whenever customer wants to

transfer money, his money is deposited at one of their branch offices

and then dispatched to desired destination as per requirement of

customers. At the time of handing over amount, they ask for the

name and identity proof of the person in whose favour the amount is

transferred and then hand over the cash to him. In cross-examination

witness admits that, since 1999 he is working with said Firm. He

possess identity card issued by the Firm. He also admits that, in his

identity proof, his designation is wrongly mentioned as Delivery man.

However, he does not possess any document to show that he worked

as Manager. On the basis of said admissions, learned advocate Shri.

Koshe, has vehemently submitted that, witness is got up witness. He is

not concerned with the courier services. But, I am not inclined to

accept the said submission because, he has produced on record

receipt. (Exh. 347). Similarly, he gave detail description of business

carried out by his Firm and the said aspect is not denied. Therefore,

merely because there is mention of Delivery man, in the identity card,

the evidence of witness cannot be brushed aside.


148] Witness Vishnubhai Patel further deposes that, police had

been to him on 17/2/06 and inquired about Nitin Modha. He was also

asked whether any amount was received by his Firm in the name of

Nitin Modha. Police checked the register. An amount of Rs. 2,75,000/-

was received in the name of Nitin Modha on 26/8/05, to his office. The

amount was deposited at their branch at Mumbai. Their staff who

brought the consignment with him had also brought memo in respect

of the transaction. The amount of Rs. 2,75,000/- was dispatched by

Pruthvi Enterprises in the name of Nitin Modha. Said memo includes

the amount of Rs. 550/- as commission. He handed over the receipt to

police (Exh. 347). He further deposes that, person by name Nitin S.

Modha came to their branch office at Baroda, showed memo of UAE

Exchange and Financial Services Ltd, and his identity proof. They

obtained the photocopies of the same from him and on verifying his

identity, they paid him Rs. 2,75,000/-. Witness has identified the

proof of UAE Exchange and Financial Services Ltd. In the cross-

examination, he admits that, entry of delivery memo is made in the

register. He did not hand over the register to police. He also admits

that, he does not possess licence for money transfer. He does not

know anything about the firm Puthvi Enterprises. The signature of the

receiver of the consignment is only obtained on receipt and not in any

register. He cannot tell the number of customers visiting their office

in a day, month and number of consignments. He also cannot give the

details of the various consignments received on 25/8/05 and 26/8/05.

he cannot tell the details of the persons who had visited on these two

dates. On the basis of said evidence, learned advocate Shri. Koshe has

vehemently submitted that, the amount was received by Firm of

witness on 26/8/05 but no entry of the same was made in the register.

but witness has categorically stated that, it is not their procedure to

make entry in the register. similarly, he had not handed over any

register to police. He simply produced receipt Exh. 247 which shows


that the amount of Rs. 2,75,000/- was sent by Pruthvi Enterprises in the

name of N.S. Modha and said Nitin Modha had collected said amount

on 26/8/05 on production of his identity card and memo of UAE

Exchange and Financial Services Ltd.

149] The said document (Exh.516) was obtained by investigating

officer Rajendra Joshi (PW 54) during investigation. Rajendra Joshi

(PW 54) categorically stated that, he had issued letter to UAE

Exchange and Financial Services Ltd. and sought information

regarding the amounts received by him and sent by them to N.S.

Modha. Accordingly, UAE Exchange and Financial Services Ltd., issued

letter in the name of investigating officer (Exh. 516) and handed over

two receipts and its duplicate copies. (Exhs. 516/A,B,C,D) and copy of

identity card of Nitin Modha. Similarly, UAE Exchange and Financial

Services Ltd., has also given details of money transfer made by them

in the name of Prasad Shetty (A 2) on behalf of Pappu @ Syed Khalid

Hussain, Dubai, along with said letter, UAE Exchange and Financial

Services Ltd., also gave the duplicate copy of receipt and copy of

identity card of Prasad Shetty (A 2) and receipt issued by Prasad

Shetty (A 2) in favour of UAE Exchange and Financial Services Ltd.,

(Exh. 517,A,B,C and D). These documents are not denied by defence.

Similarly, prosecution has obtained said documents from UAE Exchange

and Financial Services Ltd. The said documents supports the version of

Approver that Nitin Modha had received amount of Rs. 2,75,000/- from

UAE Exchange and Financial Services Ltd., through Vishnubhai

Kantibhai Angdia Firm at Baroda. The Approver has also deposes that

after receiving the amount, Nitin Modha paid Rs. 50,000/- each to him,

Prasad Shetty (A 2) and Chhotu Ghisaiwala (A 10) in hotel Siddharth.

The said fact is also substantiated from the documents obtained in

this case at Exhs. 516. Therefore, the evidence of Vishnubhai Patel has

supported the evidence of Approver that Nitin Modha had received


amount of Rs. 2,75,000/- on 26/8/05.

150] Approver further deposes that, Nitin Modha also directed

him to pay Rs. 12,500/- to goldsmith and take back the gold ornaments

and also stated him to pay Rs. 1,000/- to Paras and told him that he

would settle his account when he would come along with Bhikubhai

Thanki (A 5) . Then her went to the house of his brother at Surat and

stayed there for 1-2 days. He celebrated the Janmashtami festival at

residence of his brother. Then he paid Rs. 12,500/- to goldsmith and got

back the gold ornaments of Nitin Modha. He also paid Rs. 1,000/- to

Paras. On this point, evidence of Jayesh Jogani (PW 14) is crucial, who

deposes that on 29/8/05 and in the month of September 2005, police

along with Approver had been to his shop. Narayanbhai along with

Nitinbhai had been to his shop for purpose of getting loan on gold.

Accordingly he paid Rs. 12,500/- to Narayan. The receipt was prepared

in the name of Nitinbhai. Name of Narayan was also mentioned in the

receipt. He deposes that, about 15-18 days thereafter Narayanbhai

had been to his shop. He repaid amount of Rs.12,500/- along with

interest, therefore, he returned him two gold chains. He produced on

record copy of receipt of pledging (Exh. 282) and original receipt of

loan amount (Exh. 283). He admits that, at the relevant time the police

officers did not inspect the record maintained by him. He also admits

that he had maintained register containing the entries of borrower, the

amount advanced towards loan, the weight of the metal, date etc.

There is no column of signature of borrower. He also admits that, at

the time of returning metal, the entry is taken in register. The

signature of borrower is obtained on the receipt. The receipt (Exh.

283) does not bear signature of borrower because original receipt is

given to him regarding receipt of gold articles. The original register is

not seized by police but the receipt aptly proved that there was

transaction of pledging of gold ornaments with witness Jayesh Jogani


by accused Nitin Modha and Approver. Thereafter Approver paid

amount of Rs. 12,500/- to him. Approver deposes that he paid Rs.

12,500/-, but in fact he paid Rs. 12,643/- which includes interest of Rs.

143/- which was not deposed by Approver, but the documents

produced on record shows that amount of loan was repaid along with

interest. Therefore, the evidence of Approver is cogent and cognate on

the point of pledging of gold ornaments as well as its release from

Jayesh Jogani. Therefore, the said evidence of Jayesh Jogani

substantiates the evidence of Approver on the point that accused Nitin

Modha told him to redeem the loan of Jayesh Jogani and take back gold

ornaments and accordingly, Approver had done it.

151] Approver further deposes that, accused Nitin Modha called

him on mobile and directed him to visit Hirabag along with gold

ornaments. Accordingly Approver reached there met Nitin Modha and

handed over gold ornaments to him. Nitin Modha was accompanied

with Bhikubhai Thanki (A 5) and a well built person, whom he does

not know. At that time, Nitin Modha asked him in respect of balance

amount with him. He had Rs. 6,000/- with him. Nitin Modha directed

Approver to give him Rs. 6,000/- by promising to settle his account as

and when he gets amount from Bhai at Dubai. Witness admits that he

did not state before CJM that Rs. 6,000/- remained with him and

accused Nitin Modha demanded said amount on promising him to settle

his account as and when he receive the amount from Bhai at Dubai.

The said fact is omission, which is material. Therefore, it is required to

be ignored.

152] Approver further deposes that, Nitin Modha called Paras on

mobile and directed him to bring two bottles of liquor at Hirabaug.

Accordingly, paras came there along with two bottles of liquor. They all

then consumed liquor in the car of Paras. Then they took food at hotel.


Thereafter Nitin Modha told him to come with him in hotel. However,

he refused by saying that he would stay in the house of his brother,

because he was afraid of unknown body-builder accompanied Nitin

Modha and had a fear in his mind that he might be murdered by

them. The said fact is brought on record as an omission. But

prosecution has examined Rameshbhai Patel (PW 12) to prove that,

accused Nitin Modha and Bhikubhai Thanki (A 5) stayed at hotel Pooja

at Baroda. According to Rameshbhai in his presence police seized the

customer register of Hotel Pooja. According to him, he was called by

police in the said hotel. Two accused were along with the police. One

Solanki was present at the reception counter of the hotel. He handed

over register of customer to police. In the said register, there was

entry in the name of Nitin Modha and Bhikubhai Thanki (A 5) at serial

No. 161. The original pages of said register were seized by police.

Witness has identified relevant pages at Exh. 278. In the cross-

examination, witness admits that, no police from Gujrat were present.

One Arvindbhai Thorat introduced him as a police officer from

Maharashtra. He admits that, police did not obtain sample of

handwriting of Solanki. It is suggested to him that only one person in

veil was brought in the hotel and he was shown only one accused

person who was in veil. He admits that, in panchanama it is mentioned

that two veiled persons were brought to hotel. Therefore, it is

established that, police had brought two accused persons, who had

shown the hotel and thereafter extracts of customer register were

seized. On going through the entry No. 161, it appears that, it is in the

name of Nitin Modha and Bhikubhai Thanki (A 5). It also appears that

they entered in to the hotel on 30/8/2005 at about 8.30 am, and

checked out the said hotel at about 6.30 pm, on the same day. The

Approver has not given the name of hotel where Nitin Modha and

Bhikubhai Thanki (A 5) had stayed, but, said part was proved by

Rameshbhai Patel by proving the customer extract of hotel Pooja.


153] Witness further deposes that, on next day morning he tried

to call Nitin Modha and Bhikubhai Thanki (A 5) on their mobiles

continuously for about 20-25 minutes. However, they did not attend

his call. He then contacted Paras on his mobile. He told him that Nitin

Modha and Bhikubhai Thanki (A 5) left in the night itself by hiring a

taxi from Railway station and Nitin Modha was proceeding to Dubai by

night flight. The said evidence is brought on record as an omission, as

it was not stated by him before CJM. He further deposes that, on the

next day, he started receiving calls on his mobile from Prasad Shetty

(A 2). He was threatening him that in case he discloses the incident to

anybody or police, he would finish him and his family members. He

remained silent and did not tell anybody. Then he removed SIM card

from his mobile to avoid threatening calls. Then he went to Bhot via

Surat. On 5/9/05, he came to Surat. While he was at the house of his

brother, Bhikubhai Thanki (A 5) called him on the mobile of his brother.

His brother handed over him call, Bhikubhai Thanki (A 5) directed him

to come to Hirabaug as he and his friends wanted to go on tour. When

he came to Hirabaug, police arrested him. He further deposes that,

occurrence of incident and his part therein, filled him with the guilt and

in order to repent with the same he had decided to speak the truth

before Court. Hence he applied for tender of pardon.

154] The evidence of Approver is criticized by defence on several

grounds. The first and foremost ground is that there was inordinate

delay to become Approver. It is vehemently submitted that, by learned

advocate Shri. Koshe that Approver was apprehended in the year 2005

and he was granted tender of pardon in the year 2010. No satisfactory

explanation is given by prosecution for the same. It is true that,

Approver was apprehended by Gujrat police on 5/9/05. Thereafter he

was formally arrested by Crime Branch, Pune on 8/9/05. It is also


admitted fact that he was granted tender of pardon in 2010. On

going through the evidence of Approver, it appears that, he had

submitted application (Exh.92) to become Approver in the year 2008.

The said application does not bear the date, but it has an endorsement

of jail authorities, which shows that it was forwarded to Court on

24/1/2008. So, it can be said that Approver submitted his first

application prior to 24/1/08. It was considered by this Court and he

was referred to CJM, but on one pretext or the other, his statement

was not recorded by CJM. Similarly, this Court has also not taken

cognizance of the same. Thereafter on 25/10/10, Approver submitted

second application (Exh. 161). On the basis of same, he was

examined by this Court and thereafter he was referred to CJM for

recording his statement and then he was granted tender of pardon by

this Court u/s 307 of Cr.P.C. . If the provision of Section 307 is perused,

it can be said that, the trial court can grant tender of pardon to any

accused before pronouncement of judgment. Therefore, there is no

necessity to give any explanation for delay. In fact, delay does not

affect the testimony of Approver. On this point, the prosecution has

relied on the ratio laid down in the case of Narayan Chetanram

Chaudhary Vs. State of Maharashtra reported in 2000 SAR

(Criminal) 844, wherein it was held that :

“No time limit is provided for recording the statement of Approver : Delay by itself is no ground to reject the testimony of the accomplice. Delay may be one of the circumstances to be kept in mind as a measure of caution for appreciating the evidence of the accomplice. Human mind cannot be expected to be reacting in a similar manner under different situations. Any person accused of an offence, may, at any time before the judgment is pronounced, repent for his action and volunteer to disclose the truth in the Court. Repentance is a condition of mind differing from person to person and from situation to situation..”

In the present case, Approver had submitted first application (Exh.92)

in the year 2008, but it did not yield any fruit. Therefore, he submitted


second application which was processed by this Court and acted upon

and he was granted tender of pardon. I must mention here that

confessional statement of Approver is also recorded by Competent

Authority under MCOCA at the early stage of investigation. So, it can

be said that Approver was eager to confess his guilt and in the

process, he opted to become witness for the prosecution and his

prayer was accepted by this Court. On going through the evidence of

Approver, it appears that, he was present in all three trips , which were

made by co-accused at Pune. He was working as driver for accused

No. 11, therefore, he had first hand information regarding the alleged

offence. In his application Exh.92 as well as Exh. 161, he has shown

his repentance for the alleged brutal act committed by him and co-

accused. So, delay in tendering pardon is no ground to discard the

evidence of Approver.

155] Learned advocate Shri. Koshe invited my attention to the

statement of Approver before CJM, wherein the Approver stated that

he has not committed any offence. In fact, in his ocular evidence he

has categorically stated that, occurrence of incident and his part in it

filled him with guilt and in order to repent with same, he decided to tell

truth before the court. My learned predecessor has recorded the

demeanor of witness. He has tears in his eyes while deposing in the

Court. Therefore, it cannot be said that Approver had nothing to do

with the alleged offence and he deposed falsely.

156] The evidence of Approver was also challenged on the

ground that he has not personally submitted application for becoming

Approver. It is true that, both the applications Exhs. 92 and 161 are in

Hindi and in the handwriting of somebody else than Approver. He

also admits that, he submitted the said applications to Court, but in

fact, said applications were submitted to jail authority and in turn, jail


authority has forwarded the said applications to this Court. On both the

occasions, this Court has taken cognizance of the same, but first

application was not persuaded in logical end. But the said error was

corrected while processing the second application Exh. 161. Therefore,

it cannot be said that somebody else made applications on behalf of

Approver without his consent or his volition.

157] Learned advocate Shri. Koshe submits that, Approver was

induced to become Approver as he was in financial crises. It is

admitted by Approver in his cross-examination that his financial

condition was poor. He was driver by occupation. He is having 4

brothers, one of them is Bhimabai, who was to be operated. There was

no earning member in his family. He sent several letters to his brother.

His brother used to send money to him through Money-order. His

brother Ramesh had met him thrice in the hospital. Bhima had some

ailment of leg. He also admits that his financial condition was poor. On

the basis of said admissions, learned advocate Shri. Koshe submits

that, due to inducement of financial gain, Approver was made witness

for the prosecution. But, said argument has no base, because there

are many accused persons who are poor. The Approver was driver by

occupation. There was no other person in his family to support his

family. That does not mean that police had helped him financially. No

doubt, the defence had examined Balu Tupe (D.W. 4), who was in jail

along with Approver. He deposes that, he had friendly relations with

Jameria. Approver used to disclose his worries and problems to him.

The financial condition of Approver was poor. Approver used to quarrel

with with co-accused Jagmalsing Choudhary ( A 3) , Chhotu Choudhari

(A 4) and others. They used to quarrel in Gujrathi language. Then he

used to inquire him about the quarrel. Jameria used to demand money

from Jagmalsing Choudhary ( A 3) , Chhotu Choudhari (A 4) and others

and used to threaten them that if they failed to pay amount, he would


become witness for prosecution.

158] Witness further deposes that, Approver used to tell him

that police officers from Crime Branch, Pune, used to meet him and

insist him to become witness for prosecution. Crime Branch told him

that they paid Rs. 3 lacs to his family members to become witness for

prosecution. Approver had no silent sleep, he was sleepless for long

period. The said evidence is denied by the prosecution. In the cross-

examination witness Balu admits that, he is facing 8 crimes. All are

serious in nature. He was arrested by various police stations. He also

admits that he had no personal knowledge regarding financial condition

of Approver. Witness was in jail from 2005 to 2008 and thereafter

again he was arrested and lodged in jail from 24/1/2012. So, the

witness was on bail from 2008 till 2012, but he did not disclose

alleged pressure brought on Approver by the Crime Branch to anybody.

The evidence of Balu is general in nature. Specific suggestions were

put to Approver that he was allured by prosecution by giving him

financial aid, for becoming witness of prosecution, but said

suggestion was refuted by Approver. There is no material on record to

establish that Approver was given monetary aid by Crime Branch, to

become Approver. In fact, since 2008 Approver was making effort

to become witness for the prosecution, he had also given confessional

statement before investigating officer. Therefore, it cannot be said that

there was pressure, influence or inducement on Approver to become

witness for prosecution. Therefore, the evidence of Balu is not worth

reliable.

159] The evidence of Approver is challenged on the ground that

Crime Branch officers used to meet him in the jail and used to take

him out of jail to force him to become Approver. To substantiate that,

defence has relied on the evidence of Rajendra Dhamne (DW3), who


was superintendent in Yerawada Jail from March 2005 to June 2009.

He has produced on record movements of Approver ( D-1 : 1 to 17

pages ), similarly, jail warrants ( D-2/1 to 4). Witness has given

procedure of detention of accused in the jail. He deposes that, if

notice is received for service on detainee, they hand over it to senior

officer of Judicial section who calls the detainee in judicial section and

serve them and their judicial section keeps record regarding receipt

of notice, name of detainee, date of service and who served it etc. He

further deposes that, during the course of regular round by

Superintendent in Circle, detainee may submit application to be

forwarded to either Court or police station. He further deposes that,

for the security of prisoner, he can be kept in (Unda) speical cell.

Some time security of prisoner or security of other prisoners, prisoner

can abe kept in secluded ( special ) cell. He admits that, Approver

was kept in Unda cell. He deposes that, during his post as

Superintendent, there was prisoners by name Narayan Jameria,

Shailesh Jadhav, Mayur Patel and Ravi Pardeshi, but he shown his

ignorance in respect of Balu Tupe was prisoner in the jail during his

tenure.

160] On perusal of jail warrant, it appears that, witness was called

before JMFC, Pimpri, on 29/11/05 and 27/7/06. The jail warrant shows

that from time to time Approver was produced before the court. It was

the case of defence that the Approver was taken to Court besides

regular date of hearing. But except the suggestions, nothing is brought

on record to establish that Approver was taken to Court besides regular

dates of hearing, to suggest that Approver was pressurized by Crime

Branch to become witness for prosecution. Rajendra Dhamne (D.W 3) is

also examined. His evidence is not helpful to defence to establish that

Approver was taken out of jail besides the Court hearing dates,

therefore, the defence of accused that Approver was allured or


induced by Crime Branch to become witness of prosecution, is not

established.

161] The evidence of Approver is also criticized on the ground

that he has not given truthful version of alleged incident. He has

concealed many facts, namely Approver has concealed that he had

made voluntary statement on 13/9/05 and in pursuance of the same,

he produced articles before police. The said event is part of

investigation. The purpose of pardon of is specified in sub section 1

of section 306 namely :

“Tender of pardon to accomplice : (1) with a view to obtaining

the evidence of any person supposed to have been directly or

indirectly concerned in or privy to an offence to which this

section applies, the CJM or a Metropolitan magistrate at any stage

of the investigation or, inquiry in to or the trial of the offence,

and the Magistrate of the first class inquiring in to or trying the

offence , at any stage of the inquiry or trial, may tender a pardon

to such person on condition of his making a full and true

disclosure of whole of the circumstances within his knowledge

relative to the offence and to every other person concerned,

whether as principal or abettor, in the commission thereof .”

In the present case, the Approver has narrated complete story of the

alleged incident. He has also narrated his role as well as role of co-

accused in the alleged crime. Therefore, non-disclosure of the events

occurred, during the investigation will not affect the evidence of

Approver.

162] Learned advocate Shri. Koshe has vehemently submitted

that, the Approver has referred Prasad Shetty (A 2) as Prashant

Shetty, in his statement before CJM. Therefore, there is ambiguity in


his evidence regarding identity of accused No.2. On the other hand,

learned Spl. APP submits that, the Approver has specifically identified

accused No. 2 in the Court as Prashant Shetty. So, there is no

ambiguity regarding the identity of accused No. 2. It appears from the

statement of Approver before CMJ that he referred accused No. 2 as

Prashant Shetty, but in the evidence before the Court, he rightly

referred accused No. 2 as Prasad Shetty. Therefore, there is no

ambiguity in the evidence of Approver regarding identity of Prasad

Shetty (A 2).

163] Learned advocate Shri. Koshe has taken me through the

omissions brought on record through the evidence of Approver. The

said omissions are in paragraph Nos. 45 to 53 in his evidence. On the

basis of omissions, appeared in the evidence of Approver, learned

advocate Shri. Koshe, submits that, Approver has improved the theory

of prosecution, similarly, he has introduced new theory, which is

inconsistent to the story of prosecution, hence, the evidence of

Approver is not worth reliable, and it should be discarded. On the other

hand, learned Spl. APP submits that, submissions brought on record

are not touching to the crucial story of prosecution. Therefore, those

should be simply ignored. However, the said omissions are considered

by me while appreciating the evidence of Approver. Most of the

omissions are in respect of the first two visits of Approver and accused

to Pune. The entire case revolves around the evidence of Approver, he

described his visits to Pune along with accused. It appears that, the

Approver had come to Pune in the month of July-August, 2005 and he

deposed in this Court in the year 2011. He is driver by occupation.

Hence, omissions appeared in his evidence are just natural. The said

omissions do not affect the main story of prosecution. Therefore, his

evidence cannot be brushed aside simply because he proved the

prosecution version. On this point, I would like to rely on the ratio


laid down in the case of State of UP Vs. Krishna master, reported in AIR

2010 S.C. 3071, wherein the Hon'ble Apex Court expressed that, minor

discrepancies which are not touching to the core case, cannot be a

ground for rejecting of evidence in entirety. In the present case also,

there are no material omissions which are touching to the core case of

prosecution. Therefore, the evidence of Approver cannot be overboard

on that count.

164] The evidence of Approver is also criticized by learned

advocate Shri. Koshe that he has not given any date of incident alleged

to have been occurred prior to 13/8/05. It is true that, Approver has

given description of his two trips to Pune, along with co-accused, he

has not given specific dates of the said trips. But the dates of said

trips are confirmed from the evidence of hotel managers, which is

already discussed above. The incident had taken place in the year

2005 and Approver was examined in the year 2011. Since the date of

his arrest, he is in jail. Therefore, it was not expected from lay man to

describe each and every date of the events occurred in his life. The

Approver has narrated the incident occurred during three trips made by

him to Pune. Therefore, the dates of earlier two trips are not

categorically given by him and it was also not expected from him.

Therefore, the said aspect cannot brush aside the ocular evidence of

accomplice which is substantiated by other witnesses.

165] The learned advocate Shri. Koshe submits that, evidence of

Approver cannot be relied on without corroboration. It is true that,

evidence of accomplice must be shown to be reliable.

166] Learned advocate Shri. Koshe, has also relied on the ratio

laid down in the case of Balwant Kaur Vs. Union Territory of

Chandigarh, reported in AIR 1988 S.C. 139, wherein it was held


that :

“ Approver's evidence in regard to complicity of accused in

conspiracy lacking corroboration on certain material particulars

necessary to connect accused : accused would be entitled to

benefit of doubt.”

In the said judgment Hon'ble Apex Court has relied on the ratio laid

down in the case of Rameshwar Kalyan Singh Vs. State of Rajasthan

(AIR 1952 SC 54), wherein it was held that :

“An accomplice, by long legal tradition, is a notoriously infamous

witness, one who being particeps criminis, purchases his

immunity by accepting to accuse others. Section 114 thus : (b) of

the Evidence Act, envisages the presumptive uncredit worthiness

of an accomplice. But then, S. 133 provides that a conviction

is not illegal merely because it rests upon an accomplice's

uncorroborated testimony.

In indictments, particularly of serious crimes, the counsel of

caution and the rule of prudence enjoin that it is unsafe to rest a

conviction on the evidence of a guilty partner in a crime without

independent corroboration on the material particulars. Judicial

experience was, thus, elevated to a rule of law. “It is a practice” It

is said “which deserves all the reverence of law”.

The nature and extent of the corroboration must

necessarily vary with the nature and circumstances of each case.

Enunciation of any general rule, valid for all occasions is, at once,

unwise and unpractical. The aspect as to the extent and content

of independent corroboration is again an interesting area of study.

One view was that independent evidence tending to verify any

part of the testimony of the accomplice should suffice. The other

view required that the corroborative evidence should not only


show that part of the accomplice testimony is true; but should go

further and implicate the other accused. In R V. Baskerville (1916

(2) KB 658) the Court of Criminal Appeal in England favoured and

adopted the second view.

Thirty-five years ago, Bose J., referring with approval to the

principles in Baskerville said that this branch of the law in India is

the same as in England and that the lucid exposition of it given

by Lord Reading, cannot be bettered.

The felicitous formulation of the law on the matter by that

great master of phrase, Bose J.. which has now become classical,

may be recalled :

“......... But to this extent the rules are clear :

First, it is not necessary that there should be independent

confirmation of every material circumstance in the sense that the

independent evidence in the case, apart from the testimony of

the complainant of the accomplice, should in itself be sufficient to

sustain conviction.

Secondly, the the independent evidence must not only

make it safe to believe that the crime was committed but must in

some way reasonably connect or tend to connect the accused

with it by confirming in some material particular the testimony of

the accomplice or complainant that the accused committed the

crime. This does not mean that the corroboration as to identity

must extend to all the circumstances necessary to identify the

accused with the offence.

Thirdly, the corroboration must come from independent

source and thus ordinarily the testimony of one accomplice would

not be sufficient to corroborate that of another...

Fourthly, the corroboration need not be direct evidence that

the accused committed the crime. It is sufficient if it is merely

circumstantial evidence of his connection with the crime....”


167] Learned advocate Shri. Koshe has also relied on the ratio

laid down in the case of Sarwan Singh Rattan Singh Vs. State of

Punjab, reported in AIR 1957 S.C. 637(1), wherein the Hon'ble

Apex Court held that:

“An Approver is undoubtedly a competent witness under the

Evidence Act. But, the appreciation of his evidence has to satisfy

a double test. His evidence must show that he is a reliable

witness and that is a test which is common to all witnesses. If this

test is satisfied the second test which still remains tobe applied is

that the Approver's evidence must receive sufficient

corroboration. This testis special to the cases of week or tainted

evidence like that of the Approver.

Every person who is a competent witness is not a reliable

witness and the test of reliability has to be satisfied by an

Approver all the more before the question of corroboration of his

evidence is considered by criminal Courts.

It is found that the Approver's acquaint against one of the

accused persons is wholly discrepant, this findings itself should

inevitably lead the Court to scrutinize his evidence in respect of

the other accused persons with greater caution.

Where the statements made by the Approver on

subsequent occasions merely add details which were not

included in the first statement, it may perhaps be a different

matter. It is true that omissions have not always the same

significance as contradictions. But, where it is patent that the two

sets of statements are wholly inconsistent and irreconcilable, that

obviously leads to a very serious infirmity in the character of thew

witness.”


168] On the other hand, Spl. APP Shri. Shah, submits that,

section 133 provides that accomplice is a competent witness against

accused persons and conviction is not illegal merely because it

proceeds on uncorroborated testimony of accomplice. To substantiate

his point, he again relied on the ratio laid down in the case of

Narayan Chetanram Chaudhary Vs. State of Maharashtra

reported in 2000 SAR (Criminal) 844, wherein the Hon'ble Apex

Court has taken stock of several judgments of Hon'ble Apex Court as

well as Privy Council and laid down that :

“ For corroborative evidence the Court must look at the broad

spectrum of the Approver's version and then find out whether

there is other evidence to corroborate and lend assurance to

that version. The nature and extent of such corroboration may

depend upon the facts of different cases. Corroboration need not

be in the form of ocular testimony of witnesses and may be even

in the form of circumstantial evidence. Corroborative evidence

must be independent and not vague or unreliable. Relying upon

its earlier judgment in Suresh Chanddra Bahri's case, this Court

in Niranjan Singh Vs. State of Punjab ( JT 1996 (5) SC 582) held

that once the evidence of the Approver is held to be trustworthy,

it must be shown that the story given by Approver so far as an

accused is concerned, must implicate him in such a manner as

to give rise to a conclusion of guilt beyond reasonable doubt.

Insistence upon corroboration is based on the rule of caution and

not merely a rule of law.”

169] In view of the ratio laid down in the case of Sawaransing

Ratansing and Narayan Chetanram Choudhary, cited supra, it is

to be seen whether the evidence of Approver is substantiated on

material particulars by other evidence on record. The Approver has

elaborately narrated his association with co-accused. He also gave


details of his visits to Pune along with co-accused, thrice. In the first

trip, there was no reference of any act towards abduction of Sagar,

but while describing second trip, Approver has disclosed that Nitin

Modha had a plan to abduct Sagar to some other place for ransom. He

gave description of attempt made by Nitin Modha ( A 11) and Jitu

Modha (A 6) to abduct Sagar, but it was failed. In the third trip, he

described the actual incident of abduction of Sagar from Nigdi to

Gujrart. He described places visited by them. There is corroboration

to his version from independent witnesses which is already discussed

above. Though there are some omissions in the evidence of Approver,

but if his evidence is read along with confessional statement, then it

can be said that, he has substantiated the case of prosecution. So, the

story narrated by Approver regarding abduction and murder of Sagar

was substantially corroborated by the independent witnesses.

Therefore, the evidence of Approver is reliable and it can be safely

accepted to prove the involvement of accused in the crime.

170] Besides the evidence of Approver, the prosecution has

also relied on the circumstantial evidence against the accused . The

prosecution has relied on the following circumstances :

1. Criminal conspiracy,

2. Seizure of articles at the instance of Prasad Shetty (A 2).

3. Seizure of articles at the instance of Chhotu Ghisaiwala (A

10),

4. Seizure of Sumo jeep,

5. Receipt of Rs. 2,75,000/- by Nitin Modha ( A 11),

6. Test Identification Parade.



9. Specimen signatures and handwriting,


10. Seizure of mobile phones.

Criminal Conspiracy :

171] The offence of criminal conspiracy can be proved largely

from the inference drawn from illegal acts or illegal omissions

committed by conspirators in pursuance of common design. Presence

of every person involved in conspiracy is not necessary. The

conspiracy is a continuing offence and continues to subsist so long its

performance continues till the plan conspired is executed. A crime is

complete as soon as the agreement is made, the presence of every

accused person involved in conspiracy is not necessary nor his overt-

act at the time of incident. It is held int the case of Shrinarayan

Laxminarayan Joshi Vs. State of Maharashtra, reported in AIR

1980 S.C. 439 that,

“A conspiracy is always hatched in secrecy and it is impossible to

adduce direct evidence of the same. The offence can only be

proved largely from the inferences drawn from acts or illegal

omissions committed by conspirators in pursuance of common

design.”

In the case of State (NCT of Delhi) Vs. Navjot Shandhu, reported

in 2005 11 SCC, wherein the Hon'ble Apex Court held that :

“Conspiracy : elements of offence : various aspects necessary to

constitute the offence, discussed :

1. need for illegal agreement,

2. no need for overt-act,

3. nature of agreement necessary- express or implied,

4. extent of comity/agreement/intention on part of conspirators

necessary,

5. extent of involvement of each conspirator necessary in


respect of various parts/intended offences of conspiracy,

6. extent of temporal involvement of each conspirator

necessary; and

7. period for which conspiracy exists.”

172] In the light of above observation of Hon'ble Apex Court, in

respect of criminal conspiracy, I am required to assess the evidence

of present case. It is the case of prosecution that Approver and co-

accused had been to Pune thrice. In the first trip, Samantbhai Boga

Gadhvi @ Kariya ( A 7) and Ajay Gadhvi (A 8) had accompanied

Approver and Nitin Modha (A 11). It is come in the evidence of

Approver that in the month of June-July 2005, he received call on his

mobile from Samantbhai Gadhvi and he told him that Nitin Modha

had come from Dubai and he would approach village Bhot along with

Nitin Modha. Accordingly, Approver went to village Bhot approach road

on highway. Samantbhai Gadhvi, and Nitin Modha came in Ciello car.

Samantbhai Gadhvi (A 7) introduced Nitin Modha to him. Thereafter

Nitin Modha asked Approver to accompany him as his driver for the

tour. It is also come in the evidence of Approver that Nitin Modha

offered him job of driver for a trip to Kanyakumari from Pune and

accordingly, Approver accompanied him. Samantbhai Gadhvi took

his cousin Ajay Gadhvi along with them and they proceeded to Pune.

They stayed in Ashapura Dinning Hall at Chinchwad. Approver,

accused : Ajay Gadhvi, Samantbhai Gadhvi and Nitin Modha met his

brother Jitu Modha (A 6) at Ashapura Dinning Hall, Chinchwad, where

Approver came to know that Bhikubhai Thanki (A 5) had been to

Porbandar, as he had lost his father. It is also come in the evidence of

Approver that Nitin Modha introduced him to his father Shantilal

Modha and brother Jitu Modha (A 6). They stayed in Pune for a couple

of days and then Nitin Modha came to know that his visa was expiring,

therefore, he decided to rush Dubai. Hence, they came back to


Mumbai. It is also come in evidence that, Jitu Modha (A 6) gave him

Rs. 10,000/- for his expenses for Visa and ticket to Dubai. Then they

reached Mumbai. Nitin Modha went to agent and got his Visa and

ticket for Dubai and thereafter Approver came to his village. Similarly,

Samantbhai Gadhvi and Ajay Gadhvi went to Porbandar. From the

above proved facts, it appears that, Samantbhai Gadhvi (A 7) and Ajay

Gadhvi ( A 8) were taken by Nitin Modha as drivers on the car. No

act or overt act is attributed to Samantbhai Gadhvi and Ajay Gadhvi.

Similarly, it is not brought on record that Nitin Modha had informed

Approver and Ajay Gadhvi ( A 8) and Samantbhai Gadhvi (A 7) that

they wanted to recover money or abduct any person from Pune. It

appears from the evidence that, Samantbhai Gadhvi (A 7) had been to

Pune to recover his amount from Bhikubhai Thanki (A 5), but, Bhikubhai

Thanki (A 5) was not available, as he had lost his father. Ajay Gadhvi

( A 8) simply accompanied his brother Samantbhai Gadhvi (A 7) as

spare driver. Therefore, he had also no knowledge about the purpose

of visit of Nitin Modha to Pune. Therefore, there is no material against

accused Samantbhai Gadhvi (A 7) and Ajay Gadhvi ( A 8) that they

had any knowledge of the participation in criminal conspiracy to

abduct Sagar for ransom.

173] It is proved on record from the evidence of Approver that

while parting with Nitin Modha, Approver demanded his money. Over

this, Nitin Modha told him that he would pay him the amount when he

would return from Dubai. It is also come on record that Nitin Modha

disclosed Approver that he had to recover some amount from a party

from Pune. Approver had asked Nitin Modha the name of party, but

Nitin Modha told him that he would tell him the name, when he would

return from Dubai. This part of the evidence is a clue of further

course of action taken by Nitin Modha on second trip as well as in third

trip to Pune.


174] As far as the second trip is concerned, it is proved on

record that the second trip started about 15 days after the first trip. It

is brought on record through the evidence of Approver that Nitin

Modha gave call to Approver and called him at Baroda. Accordingly,

Approver reached Baroda and then to Surat and was waiting for the

call of Nitin Modha. It appears from the evidence of Approver that he

stayed in the house of his brother at Surat. Three days after reaching

Surat, Approver received call of Nitin Modha who told him to visit

Haribaug Circle, Varasa road, Surat. Accordingly, Approver went there

at 12.00 midnight. He saw Indica car bearing No. GJ-07/3315 wherein 4

persons were present. He was asked to get in to car. Accordingly, he

accompanied Nitin Modha to hotel for night stay. Nitin Modha

explained him that he wanted to take another car on rent, as he had

plan to go to Goa from Pune. At that time, Nitin Modha was

accompanied Chhotu Ghisaiwala (A 10), Prasad Shetty (A 2) and

Chhotu Choudhari (A 4). Chhotu Choudhari (A 4) was driver on Indica

car. It is also come in the evidence of Approver that on next day

morning, all of them came to Hirabaug circle and made inquiry with

some agent for car on rent. Approver called Dinesh Tukadia (A 9) who

provided Ciena car of his brother-in-law to Nitin Modha and then at

about 9 pm, Nitin Modha ( 11), Approver, Chhotu Ghisaiwala (A 10)

Prasad Shetty (A 2) Chhotu Choudhari (A 4) and Dinesh Tukadia (A 9)

proceeded to Pune.

175] It is also proved on record that all of them came to Pune.

They went to hotel Kohinoor in Chinchwad. The stay of said 6 accused

persons is proved through the manager of Kohinoor hotel Raju Shetty

( PW 6). It is also come on record that they stayed there for 3 days and

then changed hotel and shifted in White-house. They stayed there for

4 days and said fact is also proved through the evidence of manager


of hotel Samal Mitra (PW 7). It is also proved on record that while

staying at hotel White-house, accused Nitin Modha had received call on

his cell phone from the cell phone starting from 0097. The said call

was attended by Approver. Caller told Approver that he was calling

from Dubai. Accordingly, the said message was conveyed by Approver

to Nitin Modha. Thereafter Nitin Modha decided to vacate the hotel and

proceed towards Mumbai. It is also proved through the evidence of

Approver that while leaving to Mumbai, Nitin Modha asked him to

follow Santro car. Accordingly, Approver followed that Santro car

which passed in speed, he tried to follow the Santro up to Nigdi bridge,

but he lost the track of Santro. Thereafter he came below the Nigdi

bridge, where Indica car was stationary, wherein Chhotu Choudhari (A

4) and Dinesh Tukadia (A 9) were present. Similarly, Jitu Modha (A 6)

also came there. Thereafter both the vehicles i.e. Ciena and Indica cars

proceeded towards Ashapaura Dinning Hall, Chinchwad, where there

was quarrel between Jitu Modha (A 6) and Nitin Modha. From the said

evidence, it appears that, Nitin Modha had received information about

Sagar passing from Nigdi bridge, hence he waited for Santro car. It is

also proved on record that Sagar was having Santro car and he used

to travel by said car. The Approver has categorically stated that, he

chased Santro car for some distance but, he lost track of it and

thereafter there was quarrel between Jitu Modha (A 6) and Nitin

Modha. It is proved on record that when Approver went to Nigdi bridge,

he saw Jitu Modha (A 6) waiting for them. It is also proved on record

that Nitin Modha had talk with somebody on cell phone and thereafter

he decided to leave Pune. On the way, he asked Approver to chase

Santro car. From the said evidence it appears that, Nitin Modha had

definite information about Sagar. Hence, he followed his car, but

Approver could not intercept it. So, the inference can be drawn that

Nitin Modha had information of Sagar from Jitu Modha (A 6), because,

Jitu Modha (A 6) was running hotel Prachi, which is situated nearby


the shop of Sagar. He knew the regular schedule of Sagar. Similarly, he

was present below Nigdi bridge, when Santro was chased by Approver.

Therefore, it is clear that, there was plan of Nitin Modha and Jitu Modha

(A 6) to chase the car of Sagar. It is proved from the cross-

examination on behalf of Accused No. 4 that Accused No. 4 was

introduced to Nitin Modha as a driver by accused No.3. It is also

established from the cross-examination that when Santro was followed,

Jitu Modha (A 6) was not present in the car of Approver. So, it can be

said that in the second trip, Accused No. 4 was taken as a driver. So,

the said suggestion establishes that Santro was followed by Nitin

Modha as per the information given by Jitu Modha (A 6).

176] As far as Dinesh Tukadia (A 9) is concerned, it is suggested

that Dinesh Tukadia (A 9) had no knowledge about the tour to

Mahabaleshwar, Mumbai or Goa. He had no knowledge about roads

of the said places. As per the request of Nitin Modha, Dinesh Tukadia

(A 9) provided vehicle for travel to Mahabaleshwar, Mumbai and Goa.

It appears that, the car of Dinesh Tukadia (A 9) was hired for travel to

Pune. Therefore, he had no idea about the proposed plan of Nitin

Modha to abduct Sagar. Similarly, he was not in the car when Santro

was followed by Approver. But, it appears that, he was waiting for

Approver and Nitin Modha below the bridge for proceeding towards

Mumbai. The above suggestions are accepted by Approver, which

proves the second trip and chase of Santro car by Nitin Modha. It

appears that, Dinesh Tukadia (A 9) had no knowledge about the plan of

Nitin Modha to abduct Sagar.

177] It is also proved on record that after returning from Pune,

Nitin Modha reached Surat, where Nitin Modha pledged his gold

ornaments with goldsmith Jayesh Jogani (PW 14) and received Rs.

12,500/-, out of which he paid Rs. 5,000/- to Dinesh Tukadia (A 9) as a


rent of car. The said transaction is also proved on record through the

evidence of Approver and goldsmith. Thereafter they decided to part

with and to meet again for their trip to Pune.

178] As far as third trip is concerned, which is very crucial. It

appears from the evidence of Approver that, 3 days after reaching

Surat, Approver received telephonic call of Nitin Modha who directed

him to meet at Hirabaug Circle. Accordingly he went there and

informed that he had left Pune and would reach Surat in the

morning. He was called at Hirabaug circle at 11 am. Accordingly,

Approver went there and saw white colour Sumo bearing No. GJ-11/E-

4992. Approver was asked to drive the Sumo. Thereafter Nitin Modha

tried to purchase documents of Sumo, but the said proposal was not

materialized, hence, Nitin Modha decided to change the number-plate

of Sumo. He broke both the number plates of Sumo and asked one

Paras to change the number plates. Accordingly, number plates were

changed at the instance of Nitin Modha and number of Sumo was

changed from GJ-11/E-4992 to GJ-14/E-4992.

179] It is further proved on record that on 13/8/05, Approver,

Nitin Modha Prasad Shetty (A 2), Chhotu Ghisaiwala (A 10), proceeded

to Pune in Sumo. It is also proved on record that Sumo was owned by

Bhikubhai Thanki (A 5). When Sumo reached near Dehuroad, they

halted at Petrol pump. It is proved on record that Nitin Modha told

Approver that they would enter City of Pune at 8 pm. Accordingly,

exactly at 8 pm, Approver proceeded towards Pune from Dehuroad.

The jeep reached near Nigdi, Nitin Modha asked Approver to take

vehicle towards Mumbai and directed to take the vehicle by the side of

road. After halting jeep, Nitin Modha, Chhotu Ghisaiwala (A 10), and

Prasad Shetty (A 2) alighted from the jeep and told Approver that

they would stop one Santro and they would take lift from the said car


and once they sit in the Santro, he has to follow the Santro car by

Sumo jeep. Accordingly, within 10-15 minutes, one Santro car came

there, which was stopped by Nitin Modha. He had discussion with

driver of Santro for 2-3 minutes and thereafter all of them sat in Santro.

Thereafter, Approver overtook Santro and stopped in front of Santro.

Over this Nitin Modha asked him as to why he stopped Sumo in front

of Santro. Then Approver told that he was not knowing the way.

Thereafter Santro proceeded ahead. It was stopped after some

distance. Then Nitin Modha alighted from Santro along with Sagar

and Chhotu Ghisaiwala (A 10) and boarded Sumo. Thereafter Prasad

Shetty (A 2) proceeded in Santro which was followed by Approver.

Thereafter, Santro was stopped at some distance. Prasad Shetty (A 2)

stopped Santro near Dehugaon on old highway and tried to lock the

same, but he could not lock, hence, Sagar alighted from the jeep and

locked Santro. Prasad Shetty (A 2) took parcel of food from the Santro

which was purchased by Sagar. There was some conversation between

Sagar and Nitin Modha wherein Nitin Modha told him that at the

moment he receives ransom from father of Sagar, he would release

him and till that time, they would go for outing. It is also come in

evidence that before reaching Nigdi bridge, Nitin Modha was

continuously talking with somebody on his cell phone.

180] From the above evidence, it appears that, before reaching

Pune, Nitin Modha had some information regarding Sagar, hence, he

asked Approver to wait at petrol pump at Dehuroad and then they

started at 8.00 pm. From the said evidence it appears that, accused

No. 11 had knowledge about the travel programme of Sagar. Before

reaching Pune, accused No.11 asked Approver to return back to

Mumbai from Nigdi bridge. Therefore, it is legally inferred that travel

route of Sagar was informed to Nitin Modha by Jitu Modha (A 6), on his

cell phone. As I have already pointed out that hotel of Jitu Modha (A 6)


was near the shop of Sagar. Therefore, it can be inferred that the

information regarding Sagar was received by Nitin Modha from Jitu

Modha (A 6) and none else. Nitin Modha had told Approver that he

wanted to go to Pune for recovery of amount from somebody and then

he came to Pune. But, before reaching Pune, he started his return

journey along with Sagar by abducting him. Therefore, it can be easily

inferred that before leaving Pune, Nitin had a plan to abduct Sagar

with the help of Prasad Shetty (A 2) and Chhotu Ghisaiwala (A 10). The

Santro car of Sagar was abandoned near Dehuraod, which was found

by complainant on next day. Similarly, the key of car was found in the

articles found from the person of deceased Sagar, whose dead body

was found at Kaprala. So, it is inferred that in pursuance of the plan

of abduction of Sagar, Nitin Modha came to Pune, along with Prasad

Shetty (A 2), and Chhotu Ghisaiwala (A 10). The Approver was taken as

a driver, who was given idea that Nitin Modha was to recover some

amount from a person from Pune and hence he accompanied him.

Therefore, Approver had also knowledge about the plan of Nitin Modha

regarding abduction.

181] It is further proved on record that Nitin Modha brought

Sagar at Baroda where Nitin Modha called Chhotu Choudhari (A 4),

who came there and made arrangement of accommodation of accused

Nitin Modha , Prasad Shetty (A 2), Chhotu Ghisaiwala (A 10) and

Approver. The said fact is proved through the evidence of Jayantibhai

Patel (PW 15) and Vinubhai Patel (PW 24). It is also proved on record

that Jagmalsing Choudhary ( A 3) had also accompanied Chhotu

Choudhari (A 4) and made arrangement of food of accused Nitin

Modha and others along with Sagar. It is also proved that Chhotu

Choudhari (A 4) made arranged of Nitin Modha, Sagar and others in the

house of one Manjuben and then Rana and they stayed there for about

7 days. During that time, Jagmalsing Choudhary ( A 3) used to make


arrangement of food of said persons. It appears from evidence of

Approver that, once Jagmalsing Choudhary ( A 3) had accompanied

Accused No. 4, to make arrangement of food. The arrangement of

accommodation was made by Accused No. 4 independently.

Jagmalsing Choudhary ( A 3) was no way concerned with the

arrangement of accommodation. Similarly, he had not accompanied

accused No. 11 to anywhere to facilitate him to hide Sagar. Therefore, it

cannot be inferred that Jagmalsing Choudhary ( A 3) had taken part in

criminal conspiracy to abduct Sagar or to help other accused persons

in concealment of Sagar at Baroda or any other place. Therefore, it can

be inferred that Chhotu Choudhari (A 4) had knowledge of plan of

Nitin Modha and he contributed by providing them accommodation

as well as making food arrangement of Nitin Modha and others for

about 7-8 days. Similarly, he had carried audio cassette of Sagar to

Pune.

182] It is also proved on record that during the stay in the

premises of Rana, Nitin Modha brought tape-recorder and small

cassette and voice of Sagar was recorded on tape for sending it to

father of Sagar for ransom. It is also proved that conversation of Sagar

recorded on cassette was sent to Pune. The said cassette was kept

below the eucalyptus tree in Khandoba temple, which was seized by

police in presence of Sudhir Sahani and Suresh Rupesha which was

played in police station, wherein the voice of Sagar was identified by

complainant. The transcription of the said conversation was made

under panchanama, on going through the same, it appears that,

Sagar was under threat of Nitin Modha and others, for ransom. It is

also brought on record that the said cassette was brought to Pune by

Chhotu Choudhari (A 4) and then he returned back to Baroda and gave

information of the same to Jagmalsing Choudhary ( A 3) as well as Nitin

Modha. Therefore, it is proved that Chhotu Choudhari (A 4) had also


taken part in conspiracy to abduct Sagar.

183] It is also proved on record that Bhikubhai Thanki (A 5) met

Nitin Modha and others at village Chotila and made arrangement of

their stay in the hotel Shri. Nagina. Similarly, he provided his sumo

to accused for carrying Sagar to Baroda from Pune. Therefore, he

had knowledge about the abduction of Sagar. Similarly, he took

active part in the conspiracy by providing his Sumo to accused as

well as made arrangement for their stay in Shri Nagina hotel. The

owner of hotel Shri. Nagina viz. Yogesh Jaiswal (PW 13) proved the

stay of Sagar, Nitin Modha and others in the said hotel. It is also

proved on record that on 23/8/05 Approver, Nitin Modha, Sagar had

stayed in hotel near Sarkhes, Ahmedabad. It is also brought on record

that in the early morning of 25/8/05, Nitin Modha, Approver, Sagar

and others stayed in the hotel Bhagyoday which was raided by police

of Gujrat. On this point, evidence of police constable Shantilal Wasava

(PW 21) is material, who had given detail description of his visit to

Hotel Bhagyodaya in search of dacoits, who committed murder of

ASI of Udwada Outpost. It is also brought on record that during the

stay at Sarkhes and Bhagyodaya Lodge, Nitin Modha was receiving

telephonic calls and he used to change his programme. Ultimately he

left Bhgyodaya Lodge and proceeded towards Nasik and then he

changed his plan and proceeded towards Wapi and in the way in the

forest of Kaprala, Prasad Shetty (A 2) cut the throat of Sagar in the

jeep and then thrown the dead body of Sagar in the forest. It is also

come on record that Sumo was halted at petrol pump and Sumo and

articles therein were washed. Similarly, Prasad Shetty (A 2) Chhotu

Ghisaiwala (A 10) and Nitin Modha washed their clothes. It is also

brought on record that Nitin Modha snatched ornaments of Sagar

while throwing his body in the forest. It is also proved on record that

after throwing the body in the forest, they came back to Karzan and


stayed in Siddharth Hotel, where Prasad Shetty (A 2) washed his

bloodstained clothes. Thereafter Nitin Modha and Chhotu Ghisaiwala (A

10) went out of hotel and Nitin Modha paid Rs. 50,000/- each to

Approver, Chhotu Ghisaiwala (A 10) and Prasad Shetty (A 2) and told

that he received less amount from Bhai at Dubai. Thereafter, Approver

had redeemed the gold ornaments of Nitin Modha and returned back

Rs. 6,000/- to Nitin Modha and thereafter they all departed and

Approver returned back to his village.

184] From the above evidence, it is proved that accused

Bhikubhai Thanki (A 5), joined accused Nitin Modha at village Chotila

and made arrangement of stay of Nitin Modha, Sagar and others.

Thereafter Sagar was taken to different places namely, Sarkhes and on

the way to Nasik he was killed in the Sumo. Therefore, from the said

evidence, it can be inferred that Nitin Modha had decided to abduct

Sagar for ransom. It is also established from the evidence of

complainant and Sudhir Sahani that complainant paid Rs. 15 lacs to

absconding accused Shamsuddin and Kadarbhai at Mumbai on

24/8/05. Thereafter on next day, Sagar was killed. Accused Nitin

Modha received Rs. 2,75,000/- through UAE Exchange on 26/8/2005

and documents to that effect are produced on record which are

proved through manager of Patel Visihnubhai Kantilal company,

Mukeshbhai Patel (PW 40) who are engaged in courier business.

Accused Nitin Modha submitted receipt of UAE Exchange, wherein there

is reference of Alibhai, who used to call him many times, which were

received by him. The said documents are at Exhs. 516/A,B,C,D. So,

from the oral evidence of Approver coupled with the documentary

evidence, and evidence of other witnesses, Mukeshbhai Patel (PW 40)

and Vishnubhai Patel (PW 30), it is proved that Nitin Modha received

amount of Rs. 2,75,000/- on 26/8/05, which was distributed by him

between Prasad Shetty (A 2), Chhotu Ghisaiwala (A 10), and Approver.


Therefore, it can be said that Nitin Modha hatched criminal conspiracy

along with Prasad Shetty (A 2), Chhotu Choudhari (A 4), Chhotu

Ghisaiwala (A 10) and Approver. So, there is complete chain of

circumstances to prove the conspiracy.

185] Besides the said evidence, prosecution has heavily relied on

the evidence of Dilip Joshi (PW 16). He deposes that, in 2005 he was

residing at Baroda. He was engaged in the business of Shri. Kismat

Kathewadiya Paratha House on handcart. His brother Rajesh was

assisting him in his business. He also employed a person namely

Jayanti for the same. He further deposes that, accused Bhikubhai

Thanki (A 5) who was cousin of his mother used to visit his stall.

Similarly, he used to supply food to Bhikubhai Thanki (A 5) wherever he

used to stay in hotel Sanman. He further deposes that, Bhikubhai

Thanki (A 5) introduced him to Nitin Modha. He came to know from

Bhikubhai Thanki (A 5) that, Nitin Modha was residing at Dubai and

working in jewellery shop. He further deposes that, he knows one

Anthony who used to visit his handcart. He was engaged in the

business of sale and purchase of landed properties. The person Prasad

Shetty (A 2) also used to come along with Anthony to his hand cart.

Anthony introduced him to Prasad Shetty (A 2). Along with Prasad

Shetty (A 2) Jagmalsing Choudhary ( A 3) also used to visit his stall.

Prasad Shetty (A 2) introduced him to Jagmalsing Choudhary ( A 3).

Jagmal was engaged in the business of marble. From the said

evidence, it appears that, accused Bhikubhai Thanki (A 5) , Prasad

Shetty (A 2) Nitin Modha and Jagmalsing Choudhary ( A 3) were

knowing each other and used to meet and they were known to witness

Dilip Joshi.

186] Witness Dilip Joshi further deposes that, on next day,

accused no. 11 came to his stall and had a tea. At that time, Nitin


Modha told him that he had to recover some amount from one person

and sought his assistance, but witness refused. Over this Nitin Modha

told him that he was coward and could not earn good money. In the

evening accused No. 2 and accused No. 11 told him that they were

proceeding to Surat in Indica car of accused No.3. Thereafter they left.

Then he had no contact with Nitin Modha, Prasad Shetty (A 2) and

Bhikubhai Thanki (A 5) for 7-8 days. In the month of August 2005,

accused No. 2 came to his house and told him to talk to accused No. 11

on phone. Accordingly he talked with accused Nol. 11. Accused No. 11

directed him to hand over his bag lying in his home and mobile to

accused No. 2. Accordingly, witness handed over bag and mobile of

accused No. 1 to accused No. 2. This evidence is supported by

Approver while describing his second trip to Pune. Witness further

deposes that, on 14/8/05 accused No. 3 came to his stall in the night

and told that accused No. 11 was going to call on his mobile.

Accordingly, there was call on the mobile of accused No.3. He told

him (witness) that he along with others had left from Surat and they

wanted to stay in his house. However, he refused by saying that he had

already guests at his home. Then they left. This evidence is very

crucial, which supports the evidence of Approver that, in the night of

14/8/05 they proceeded towards Baroda and on the way they halted at

Surat. They wanted to halt at Baroda, but no arrangement was made,

hence they went to the house of Manjuben and stayed there. The said

evidence is not clinching to prove the nexus between accused No.3

and Nitin Modha. At the most, it can be said that, accused No.3 had

given message of accused No. 11 to prosecution witness Dilip Joshi.

187] It is further deposed by witness Dilip Joshi that, two days

thereafter accused No. 11 came to his stall and directed him to

prepare food parcel for 5-6 persons. Accordingly, he made inquiry

about the persons accompanied him. Nitin Modha told him that said


persons had been to Baroda for some work, one of them was from

Pune and others were from Baroda. Nitin Modha had taken food

parcels from his stall for 2-3 days. It is also come in his evidence that

Approver and Nitin Modha used to bring parcel from him when they

were staying in the premises of Rana. So the evidence of Dilip Joshi is

also substantiated by the evidence of Approver on the point of

bringing food parcel from witness during their stay at Baroda.

188] From the evidence of Dilipbhai, it is aptly proved that he

was conversant with Nitin Modha, Prasad Shetty (A 2), Chhotu

Ghisaiwala (A 10) Jagmalsing Choudhary ( A 3), Bhikubhai Thanki (A 5).

All these accused used to visit his stall for meal. Similarly, he also used

to meet them frequently. Therefore, witness Dilip Joshi was having

close relation with Nitin Modha who disclosed him that he wanted to

recover some amount from a person at Pune and sought his help,

which he refused. The said incident had taken place in the last week

of July 2005 and thereafter the plan of abduction was executed by

Nitin Modha. Therefore, the evidence of Dilip is also helpful to prove the

design of abduction in the mind of accused Nitin Modha which was

expressed to Dilip Joshi. The accused Nitin Modha used to visit the

shop of Dilip along with accused no. 2. Nitin Modha (A 11) had sought

help of witness for recovery of money. Therefore, it can be said that

accused Nos. 2 and 11 had planned to recover the money from person

at Pune. In the said plan/design, accused No. 11 took help of Accused

No. 4, accused No. 5, accused No. 6, accused No. 11 and Approver.

Accused No. 6 provided information of Sagar to accused No. 11.

Accused No. 4 knew abduction of Sagar, still he made arrangement of

food and accomodation of accused no. 11 and also carried cassette to

Pune. Accused No. 5 provided his Sumo and also made arrangement of

accused No. 11 and others at Chotila. So, it is established that, accused

No. 11 had hatched conspiracy of abduction of Sagar for ransom.


Thereafter wrongfully confined Sagar at various places with the help of

other conspirators and ultimately, he killed Sagar with the accused No.

2 and 10.

Seizure of articles at the instance of Prasad Shetty (A 2) :

189] The first of it is seizure of weapon at the hands of Prasad

Shetty (A 2). It is the prosecution case that on 15/9/05 accused No.2

while in custody made a voluntary statement in presence of panch

witnesses and produced knife used in the crime. To prove the said

statement, prosecution has heavily relied on the evidence of panch

Dipak Zanje (PW 28). According to him, on 15/9/05 he was called in

some hotel at Baroda. He reached there at about 11.15 am. Police

authority from Pune and local police were present there. Other panch,

viz. Jadhav was also present. Accused gave statement in his presence

that he was ready to discover the clothes and knife, from the house of

Raja Pilley. The said statement was recorded by police in his presence.

It was read over to him he signed the same. He identified his signature

at serial No. 2 (Exh. 338). He further deposes that, accused took them

to the house of Raja Pilley. They all proceeded in TATA Sumo vehicle. It

was stopped near complex. Then they followed accused by foot. He led

them to the house of Raja Pilley. PI Rajendra Joshi (PW 54) talked with

the inmates of house and obtained their consent for the purpose of

discovery. He further deposes that, all of them went inside the house

of Raja Pilley. There was one cupboard. Accused took out bundle

from the cupboard and opened it. It contained T-shirt, pant and knife.

The knife was in a cover. Finger print expert and Forensic experts

were also present. They examined the articles. Thereafter panchanama

was drawn and he signed on each and every page of the panchanama,

( Exh. 339). The witness was also shown seized T-shirt, trouser and

knife with cover. He identified the said articles. He has also described


that T-shirt was black in colour in inscription “Polo”, on the pant there

was label of “Trouser” and on the knife it was scribed as “Brazil”.

The said articles are at Articles 41 to 44. Witness has also identified

Prasad Shetty (A 2) as the same person who made voluntary statement

before him.

190] In the cross-examination, he admits that, in the year

2005,, he was taking education in Unnati Vidyalaya, Baroda. At that

time, he was residing at Akota. He used to go school by walking. It

would take one hour to reach his school. At the relevant time he was

studying in 12th Std. His house was in the jurisdiction of J.P. Police

station . His school was in the jurisdiction of Sayajiganj police station.

He had no acquaintance with Police Authorities. Witness had

categorically stated that, on 15/9/05 he was called by police at some

hotel in Baroda. It is not his case that he was called at any police

station. similarly, he also admits that he had no acquaintance with

police. Therefore, it appears that, he was independent witness, who

was called by police to witness voluntary statement of accused. He

further admits that, he cannot tell the name of police who called him

on that day. He also admits that, Police Authorities were not in

uniform on that day. When he reached there, he did not have any idea

about the persons were Police Authorities. There were about 8-10

persons. He does not verify the identity of the persons present there

personally.. He had only talked with person Rajendra Joshi (PW 54)

present there, who told his name to him. It was suggested to witness

that accused was handcuffed, but the said suggestion is refuted by

him, but he subsequently admits that accused was in veil and his

hands were tied with rope. On the basis of said admission, learned

advocate Shri. Koshe has vehemently submitted that, the

voluntariness of alleged statement goes away, because hands of

accused were tied with rope. To substantiate his point he relied on the


ratio laid down in the case of Shankar Raju Banglorkar Vs. State

of Goa, reported in 1992 Cri.L.J. 3034 and Deoraj Deju Suvarna

Vs. State of Maharashtra reported in 1994 Cri.L.J. 3602. In both

the cases the alleged disclosure by accused were made in police

station while they were handcuffed. On this point, it was held that :

“It could not be said beyond reasonable doubt that the recovery was voluntary and not a result of duress, threat or pressure by police authorities.”

Hence, it was also held that :

“Disclosure, made under duress, pressure or threats given by police, is not admissible in view of Article 20 of Constitution.”

On the basis of above ruling, it is to be seen whether the evidence on

record is cogent, cognate on the point of discovery of articles.

191] Witness Deepak Zanje (PW 28) further admits that, room

was on ground floor, wherein neither the room boy or manager of

hotel were present at the time of memorandum panchanama. He

further deposes that, at about 11.15 am, they left the room. He does

not know whether Sumo was private or government vehicle. They

reached within 15 minutes. The house of Pilley was in a society. He

does not remember the name of society and house number of Pilley.

The house comprises of two rooms and a kitchen. There were four

persons in the house. Police inspected the entire house. He does not

remember whether the statement of Pilley was recorded or not.

Nobody from the police party went outside the house. Investigation

car was not called at the house of Pilley. The photographs were taken.

The police authorities recorded the events in the chronology as they

occurred. Witness cannot assign any reason as to why it is not

mentioned in panchanama regarding photographs. He admits that, it

is not mentioned in seizure panchanama that the bundle was taken


out of almari. The omission is in respect of almari. It is mentioned in

the panchanama that accused took out the bundle from backside of

folded cot. The said bundle was not in open space. It appears that, it

was concealed behind the folded cot, so that attention should not be

attracted towards it. Therefore, the said omission is not material. What

is required tobe seen is that, whether the articles were concealed and

only the accused had knowledge about the same. It appears from

evidence of panch witness Deepak Zanje that, it was concealed in the

house and accused had produced the same. Therefore, from the

evidence of panch witness, voluntary statement as well as discovery

of article, at the instance of Prasad Shetty (A 2) is proved.

192] On this point, learned Spl. APP Shri. Shah has relied on the

ratio laid down in the case of Putalabai Bhimashankar Pattan Vs.

State of Maharashtra, reported in 2010 ALL MR (Cri) 2084,

wherein it was held that :

“There can be no doubt that when accused is handcuffed he may not be free from fear of the police or duress or pressure. But, that itself cannot be a reason to discard the recovery of weapon if it was otherwise found to be supported by evidence of the panch witnesses and the investigating officer handcuffing of a person by itself cannot be a reason to generalise the hypothesis that such a discovery cannot be reliable case will have to be examined in its own peculiar circumstances.”

In the said ratio, cases relied on by learned advocate Shri. Koshe, are

referred. In the present case, from the evidence of Dipak Zanje it

appears that, police of Pune had been to Hotel at Baroda and

investigation was carried from the said hotel, therefore, it appears that,

for the purpose of safety accused might have been tied with rope. The

witness has categorically stated that, accused gave statement in his

presence that he was ready to discover weapon and clothes used in

the crime, from the house of Raja Pille, so description given by him

was specific i.e in respect of clothes , knife and place also. Similarly, it


appears that, accused led police party to the house of Raja Pille and

produced bundle containing his clothes and knife. The witness had

described the clothes as well as knife which were shown to him and he

identified it in the Court. Therefore, the evidence of Zanje was cogent

and cognate in respect of the recovery.

193] Similarly, the evidence of investigating officer in whose

presence accused Prasad Shetty (A 2) allegedly made voluntary

statement is also crucial. Investigating officer Rajendra Joshi (PW 54)

has categorically stated that, on 15/9/05 Prasad Shetty (A 2) gave

memorandum statement in presence of panch witnesses to discover

knife used in commission of offence. Accordingly, it was recorded (Exh.

338). He further deposes that, in pursuance of the said statement,

accused, panch witnesses and impugned order proceeded as per

direction of accused. Accused took them to the house of his friend Raja

Pilley. The accused discovered steel knife along with cover, pant and

T-shirt under panchanama. Therefore, the said evidence is also

substantiated by the panch witnesses. Therefore, even though the

accused was tied with rope, the evidence of panch witness and

investigating officer Rajendra Joshi (PW 54) is cogent and cognate.

Hence, their evidence cannot be brushed aside merely because

accused was tied by rope at the time of memorandum panchanama

and recovery panchanama. Therefore, I am not relying on the

submission of learned advocate Shri. Koshe and I inclined to rely on

the ratio laid don the case of Putalabai Bhimashankar Pattan Vs.

State of Maharashtra , reported in 2010 ALL MR (Cri) 2084,

supra , by Spl. APP.

194] Learned advocate Shri. Koshe submits that, investigating

officer ought to have recorded statement of Raja Pilley and his family

members But, no statement was recorded. Therefore, adverse


inference can be drawn against prosecution. On the other hand, Spl.

APP Shri. Shah submits that, there was no reason to record the

statement of inmates of the house because investigating officer has

specific information that articles were concealed in the house of Raja

Pilley. Accused led police party to the house of Raja Pilley and

produced the articles. Therefore, recording of statements of inmates

of the house of Pilley, was immaterial. I find considerable force in the

submission of learned Spl. APP Shri. Shah because, accused had given

specific information to investigating officer in presence of panchas

and in pursuance of the same, he produced the articles concealed in

the house of Raja Pilley. Therefore, it was not incumbent upon the

investigating officer to record the statement of Raja Pilley and his

family members.

195] Learned advocate Shri. Koshe submits that, photographs

were taken at the time of seizure panchanama, but those were not

produced. Panch Deepak Zanje admitted that photographs were taken,

but there is no material on record to establish that photographer was

present at the spot and he had taken photographs when accused had

produced articles, which were seized under panchanama. therefore,

there was no need to produce the photographs. The non-production of

photographs is also not fatal to the prosecution.

196] Learned advocate Shri. Koshe, also submits that, finger-

print expert and Scientific Expert were also present at the time of

seizure, but no report is produced of the same. Witness Deepak Zanje

(PW 28) stated that Scientific Expert as well as Handwriting Expert

were present at the time of panchanam and they have inspected the

articles, but report of Scientific Expert and Handwriting Expert is not

produced on record. He also submits that, the weapon and clothes

were referred to C.A, but the report of same is inconclusive. It is true


that, report of C.A in respect of knife is at Exh. 564, wherein it is

specifically mentioned that, the blade of knife ( dagger) was stained

with blood. He also opined that the said blood was of human origin, but

grouping of the same could not be done. Hence, C.A report is

inconclusive. But, the fact remains on record that, the blade of knife

was having human blood and the said circumstance goes against the

accused. Therefore, the discovery of knife at the instance of accused

No. 10 is incriminating circumstance against him.

197] According to prosecution, cell phone, currency notes, wrist

watch, visitng cards and diary etc. were seized from the possession of

Prasad Shetty (A 2) at the time of arrest on 8/9/05. The investigating

officer Balkrishna Agase (PW 51) has stated that he arrested accused

No. 2 on 8/9/2005 under panchanama Exh. 306. To prove the said

panchanama, prosecution has examined Bhavansing Darbar (PW 23).

According to him, on 8/9/05, at about 8.30 am, he was called in the

office of ATS, Ahmedabad. One police officer Agashe from Pune, was

present there. Similarly, Prasad Shetty (A 2) was also present there. He

was told that, police wanted to prepare arrest panchanama. He gave

his consent. In his presence Samsung mobile, 14 government currency

notes of 100 denominations, Titan watch, diary, railway ticket from

Baroda to Mumbai and several visiting cards were seized from the

possession of accused No. 2. Police sealed and seized said Article Nos.

74 to 80, 83 and 84 under panchanama. He identified said articles in

the Court. He also deposes that accused Chhotu Choudhari (A 4) was

also searched in his presence but nothing was seized from him.

198] In cross-examination, witness Darbar admits that, accused

were handcuffed. The said fact has no legal significance because

nothing was seized in pursuance of the of voluntary statement of

accused.The articles were seized in the personal search of the accused.


Witness admits that he was not using mobile phoen at the relevant

time, therefore, he was not knowing the working of mobile phone. His

signatures were not obtained on the diary. He did not see the date in

wrist watch. He did not talk the accused. The said admissions are not

crucial to discard the evidence of witness Darbar. In fact, the

prosecution had not proved the nexus of the seized articles with the

crime. Therefore, investigating officer has just completed formality of

the seizure of articles, at the time of arrest of the accused.

Seizure of articles at the instance of Chhotu Ghisaiwala (A 10) :

199] The prosecution has also relied on the evidence of

Pramodkukmar Sharma (PW 42), who attended and attested the house

search of accused No. 10. According to him, on 6/9/05 he was called

by police authorities for the purpose of search of house. One Ram

Murti was also called for the same purpose in the house of Ravitsingh

Bhadoriya (A 10). The police started taking search of the house. The

house was locked. The police broke open the lock. They entered in the

house. There were two rooms. There were locks to the inner rooms

also. Those locks were broken by police. There was almira inside the

room. Police also broken its lock. A blue coloured polythene bag was

found inside the almira. In that bag there were some visiting cards

including that of A-1 Motors. There were about 17-18 articles. Another

box was also found in the room. It was also searched. But, nothing was

found in it. The articles were seized by police authorities under

panchanama (Exh. 390). The seized articles were :

9 visiting cards of A-1 Motor and Car-Decor, 2 visiting cards

of Sahil Shaikh, 1 visiting card of Gopal Khatri, visiting cards

of K.K.tours and Travels, 1 visiting card of Bajaj Allianze, 1


visiting card of Vivek Lohani, 1 visiting card of Tanya Mitra,

1 visiting card of Vipul Gandhi, one visiting card of Watlock

Control, 13 lottery tickets, receipt of Nes-Wadia college of

Commerce, Pune, in the name of Sagar Sahani, a receipt

issued by M/s Sagar Mat in the name of Sagar Agencies, a

receipt of Central park Hotel, Pune, receipt issued by CMS

Security, 4 HSBC Bank Credit receipts and cash memo of

Alfa Auto.

Witness deposes that, his signatures were taken on each and

every article. He further deposes that, he knows Ravitsingh and he

identified him as accused No. 10. He was also knowing Chhotu

Ghisaiwala (A 10) as he is his neighbour and his nick name is Chhotu.

He is also known as Surendrasingh. In the cross-examination, he

admits that, he is residing at Umredha. It was suggested to him that

there two groups in the village of Sharmas and Rajputs. But, the said

suggestion is refuted by him. He admits that, since 2005, he was

engaged in agricultural activities. Police authorities do not know him

by name. He was called by police while he was proceeding on the

road. He was near the house of Rampreet Sharma, around 12.30 to 1

noon. They went by foot. On the left side of house, where search was

taken, there was the house of Mr. Talle. On right side of that house,

there was open plot and wall followed by house of Pinkisingh

Bhadoriya. Police did not show him search warrant. He does not

know as to when police from Maharashtra came to Umredha. The house

was owned by Savindersingh. The owner was not called at house. The

police tried to find out persons from neighbouring houses, but they

could not get anyone. Photographs were not taken. Since no male

member was present in neighbourhood, police could not make inquiry

in respect of keys of house. Police had implements for breaking lock.

He does not know about the belongings of police. After breaking the

lock, police first entered the house. Police authorities from Maharashtra


and U.P entered in the house. He also went inside the house along with

them. He further deposes that, other than almira and box, there was

no other article. Police broken the locks of main door and other

rooms along with lock of almira and box. He was in the said house for

about 1 to 1 ½ hours. In view of above evidence it is crystal clear that

witness Pramod is resident of Umeredha, he knows accused, similarly,

he knew that house which was searched, was belonging to accused No.

10. He had categorically stated that, in all 17-18 articles were found

in the bag in the said house. It is also come in his evidence that the

articles were seized and sealed with wax. Police put new lock to the

house and entrusted the key to Balgarsingh. Therefore, it can be said

that witness Pramodkumar Sharma has proved the search of house of

accused No. 10 and panchanama prepared in pursuance thereof. The

seized articles consists of visiting cards of A-1 Motor and Car-Decor,

2 visiting cards of Sahil Shaikh, 1 visiting card of Gopal Khatri, visiting

cards of K.K.tours and Travels, 1 visiting card of Bajaj Allianze, 1

visiting card of Vivek Lohani, 1 visiting card of Tanya Mitra, 1 visiting

card of Vipul Gandhi, one visiting card of Watlock Control, 13 lottery

tickets, receipt of Nes-Wadia college of Commerce, Pune, in the name

of Sagar Sahani, a receipt issued by M/s Sagar Mat in the name of

Sagar Agencies, a receipt of Central park Hotel, Pune, receipt issued by

CMS Security, 4 HSBC Bank Credit receipts and cash memo of Alfa

Auto. The said articles belong to deceased Sagar. No explanation of

whatsoever is given by accused no. 10. He simply denied the

panchanama. The seizure of articles proves the nexus between Chhotu

Ghisaiwala (A 10) and deceased Sagar.

200] In cross-examination witness admits that, he reached Pune

on 9/1/12. His friend Deepu, resident of his village stays in Pune, had

come to railway station to receive him. He had received Court

summons about 25 days ago . He did not meet police authorities after


coming to Pune. He reached Court at 9.45 am, A person viz. Gunga

Jagtap from Crime Branch has informed him on mobile that warrant

was issued by the Court. 15 minutes before reaching to the Court, he

met some person of Crime Branch. But, he did not have any discussion

with him in respect of the evidence to be given in Court. So, by the

said cross-examination, it was tried to show that he gave evidence at

the instance of police. But, from the said admission, it appears that,

witness had come to Pune a day before his evidence. He stayed with

his friend. Me met police officers just before his examination, but he

has categorically stated that, he had no discussion with police in

respect of evidence to be given in the Court. Therefore, it cannot be

said that witness was tutored to implicate the accused.

201] The prosecution has also relied on the panchanama of

personal search of accused No. 10. To prove the said panchanama,

prosecution has relied on the evidence of Ghansham Yadav (PW 39).

According to him, in the year 2006, he was posted at inter-State Crime

Branch, Chanakyapuri, New Delhi, as police constable. On 2/2/06, API

Gaikwad of Maharashtra police had approached him for assistance to

arrest accused Ravising Bhadoria (A 10) . Accordingly, he along with PSI

Naresh, accompanied team of API Gaikwad. He further deposes that,

API Gaikwad arrested Ravising ( A 10) under arrest memo (Exh. 374).

He further deposes that, in his presence personal search of accused

was taken and panchanama was prepared. Thereafter accused led

police party to the house of his brother Sudhir Bhadoria who was

residng at lane No. 3, Ira Nagar, near patoudi chowk, Gudgaon,

Hariyana. After entering in to the house, accused took out mobile

phone of Sony Ericson company, from almira in the wall. The said cell

phone was seized under panchanama (Exh.377). Witness has identified

seized mobile (article No.176) as well as accused in the Court. He

admits that, no written direction was given to him to assist API


Gaikwad. He does not remember whether entry was made in the

station diary while accompanying API Gaikwad. He used to maintain

daily diary, but it was not produced. On the basis of said admission,

learned advocate Shri. Koshe submits that, there is no material to

show that witness had accompanied API Gaikwad. But, on going

through the panchanama, it appears that, witness had signed the

arrest memo, seizure memo. Similarly, the brother of accused had also

signed the arrest memo. Therefore, it is aptly proved that, accused

was arrested and thereafter house of his brother was searched. Witnes

admits that, house was owned by Nandlal and it was taken on rent by

Sudhir Bhadoriya. The said Nandlal had also signed the arrest memo.

Therefore, it appears that, Nandlal and Sudhir were present at the time

of seizure of articles. In fact, the prosecution had not proved the

nexus of the seized articles with the crime. Therefore, investigating

officer has just completed formality of the seizure of articles, at the

time of arrest of the accused.

Seizure of Sumo. :

202] According to prosecution, Sumo bearing No. GJ-14/E-4992

was seized on 5/9/2010 which was parked in front of the house of Ajit

Kahar (PW 8). According to investigating officer Rajendra Joshi (PW

54) , on 5/9/05, he received information that Sumo used in the crime

was parked in front of house of Ajit Kahar. He immediately reached the

said place and seized Sumo. It was checked by Forensic Expert as well

as Finger-print expert. The necessary articles from the vehicle were

removed and seized under panchanama (Exh. 269). Similarly, articles

22 to 67 were seized under panchanama which includes the articles

found in the vehicle as well as spare parts of the jeep.


203] To support the said evidence, prosecution has relied on the

evidence of Ajit Kahar (PW 8) as well as panch Chandrasing Solanki,

(PW 9). According to Ajit Kahar, he had 7 brothers and 3 sisters. He

knew Dilip Joshi (PW 16). His brother Bipin let out hand-cart to

Dilipbhai. Dilipbhai used the said handcart for the stall of Kathewadi

eatables. He also used to have his food at the said stall and Dilipbhai

did not charge him for the same, as he used to assist him in purchasing

grocery for his business. He further deposes that, in August-September

2005, he was unemployed, hence he used to help Dilip in his stall, he

had requested Dilip to find out a job for him. Then after 2-3 days he

told him that he had arranged job for him. Accordingly, he introduced

him to Nitin Modha and told that he was in need of driver on his

vehicle. Nitin Modha also told him that his vehicle was on tour, as and

when it comes, he will employ him as a driver. Witness identified

accused No. 11. According to him, on 31/8/05 Nitin Modha along with

his brother-in-law and witness went to purchase Sumo from old vehicle

market at Surat. Dilip introduced him to brother-in-law of accused No.

11. Witness also identified Bhikubhai Thanki (A 5) as brother-in-law of

accused No.11. They went to Surat by bus and stayed in hotel. Next

day at 12 pm, they proceeded to purchase Sumo. However accused No.

11 did not like the vehicles there. Hence they returned. Accused No. 11

told him to come at Mumbai, however he refused it. At railway station

accused No. 11 hired Indica car and accused No. 11 and his brother-in-

law left in India towards Mumbai. At that time, accused No. 11

handed over him spare key of Sumo and told that the Sumo was parked

near the house of Dilipbhai and he directed him to take Sumo to his

residence. Accordingly, witness reached Baroda in night went to the

house of Dilipbhai and took the Sumo and kept in front of his

residence. After 2 days he received telephonic call of accused No. 11

and he told Nitin Modha (A 11) that he parked Sumo in front of his

house. Nitin Modha told him to cover the vehicle. Accordingly, he


covered the vehicle. He further deposes that, after 5 days police

authorities came to his house and demanded key of vehicle. Police

removed the cover and opened the vehicle, and took samples from it.

Police also removed the steering, knob of gear, seats etc. of Sumo.

204] In the cross-examination, Ajit Kahar he admits that since

1995 he was working as driver. Initially he drove Sumo and thereafter

he was driver on Luxury bus. He worked as driver at different places,

but he cannot tell its period and places. From the said evidence it

appears that, witness was driver by occupation. He worked as a driver

for about 4-5 years, during which he met many persons for driving

their vehicles.

205] Further, in the cross-examination, witness Kahar admits that

Dilipbhai came to Baroda a year before the incident. In the year 2005,

he worked with Mahesh Indore and Yogesh Patel. Witness admits that

he possesses driving licence of Heavy and Light Motor-vehicles. The

said part of evidence shows that witness had worked with several

persons as a driver. He admits that he did not work in Surat, hence he

was not knowing the roads in Surat. He further admits that he was

unemployed since July to September 2005, at that time he was helping

Dilipbhai in his food business. At that time, he used to meet Dilipbhai

everyday. Dilipbhai did not introduce him a person by name

Narayanbhai. In July 2005, Dilipbhai introduced him to accused No. 11

and his brother-in-law . In July 2005, he stayed in Surat for a night, but

he cannot tell the name of place where he stayed in Surat. This part of

evidence proves that Dilipbhai introduced witness to accused No. 5

and 11 in the month of July 2005

206] He also admits that, he cannot tell the number of Indica

car by which accused Nos. 5 and 11 left, but it was of white colour. He


also admits that, after returning from Surat, he did not meet Dilipbhai,

neither called or he talked with him. He does not recall the mobile

number on which he received call after two days. From the said cross-

examination, it is tried to impress that after returning from Surat,

witness did not meet Dilipbhai and he did not receive any call from

anybody. But, it is not case of accused that after returning from Surat

witness did not receive call and he had conversation with anybody.

Therefore, the said cross-examination is immaterial to discard his

evidence. Witness further admits that he does not notice any idols in

the vehicle. He also cannot recall the colour of interior of the vehicle.

There were 3-4 keys along with the key of Sumo. There was no key-

chain and remote in it. There were no special marks on the vehicle.

The police party which came to his residence included PI Rajendra

Joshi (PW 54). Police did not issue him any receipt when they had

taken the key and seized the vehicle. His statement was not recorded

at the time of seizure of vehicle. He further deposes that, after taking

out the steering, gearbox nob, seats from Sumo, police replaced it by

other parts. Sumo was taken to police station. thereafter 2-3 hours

he went to police station where his statement was recorded. He also

admits that, he signed the statement. But, in fact, said admission is

exaggeration. The statement does not bear his signature. He further

admits that, he signed as per request of police authorities. Thereafter

he went to police station on 15/5/05. He further admits that, he was

called at Siddharth Hotel once. His statement was recorded at Gorwa

police station. His statement was recorded in Hindi. He had seen the

statement . It was written in Marathi, which he could not understand.

Therefore, it can be said that witness was called at Gorwa police

station as well as at Siddharth Hotel and he was not shown any of the

accused persons. He did not state before police the place where he

stayed in Surat. He did not state police that steering wheel,gear knob

and seats were taken by police authorities from the said vehicle. In


fact, the said admissions are not material, because in the statement

witness Ajhit Khar he described the articles which were removed from

the jeep and those are mentioned in panchanama (Exh. 269). Similarly,

witness also specifically stated that police seized vehicles and also took

out some parts of the jeep which were inspected by Forensic expert. He

also admits that, he does not know as to where police took the jeep.

He also admits that, he did not tell police that Bipin had let out the

handcart to Dilipbhai 6-7 years prior to the incident. In fact, witness

has stated that about a year prior to incident, cart was let out. The

omission is in respect of the period of letting out the cart. But, he has

specifically deposed that his brother had let out hand cart to Dilipbhai,

where he was carrying his business of selling food. Therefore, the said

omission is also not material. He admits that, he did not know the

name of brother-in-law of accused No. 11. But, in fact, in the statement

the name of brother-in-law of accused No. 11 is mentioned, for which

no explanation is given. The said contradiction is also not material

because it is specifically established by prosecution that the name of

brother-in-law of accused No. 11 was Bhikubhai Thanki (A 5). Witness

has categorically identified accused No. 5 as brother-in-law of accused

No. 11, in the Court. Therefore, there is no dispute regarding the

identity of accused No. 5. Thus, the said contradiction is not material.

From the evidence of Ajit Kahar, it is established by prosecution that

accused No.11 had handed over keys of Sumo to him, while returning

from Surat. He was asked to take vehicle to his house from the house

of Dilipbhai. Accordingly, he had taken vehicle to his house and parked

it. Similarly, as per instruction of accused No. 11, he covered the

Sumo. Thereafter police came there and seized the Sumo.

207] On this point, the evidence of Dilip Joshi (PW 16) is also

crucial. According to him, 2-3 days after 26/8/05, he received call on

his land-line phone at Porbandar from Riyaz, who was working on


Luxury bus plying from Baroda to Porbandar. He told him that a Sumo

with cover was parked behind his house at Baroda. He asked him

about registration number of the vehicle, he told him that number

plate of Sumo was covered with mud and only number GJ-14 was seen.

Two days thereafter, he received call on his land-line from Ajit Kahar,

who told him that accused No. 11 had directed him, by giving the keys

of Sumo, to park it at ST colony. Then he tried to contact accused No.

11, however, his mobile was not reachable. The said evidence

supports the evidence of Ajit Kahar. It appears that, Ajit Kahar had

simply informed Dilip Joshi, that he was taking Sumo parked near his

house, as per direction of Nitin Modha (A 11).

208] To substantiate the evidence of Ajit Kahar, prosecution has

also relied on the evidence of Chandrasing Solanki (PW 9), who was

panch witness to the seizure panchanama of Sumo. According to him,

on 5/9/05, he was called at ST colony, Baroda, for panchanama.

Kamleshbhai Rajput was other panch. At that time, police authorities

from Pune, local police and Forensic Experts were also present. The

vehicle was in front of house of one Ajit Kahar. Police authorities

obtained key of the vehicle from Ajit in his presence. Sumo was

covered with blue cover. Police inspected the vehicle from all sides,

opened the door of vehicle and took samples of the red colour stains

seen in the vehicle. The stains were found on the door, seats, flooring.

Soil and hair were also found on the flooring. The samples of soil were

collected from vehicle. There were two key-chains of Ganapati and

pendent of heart. The steering wheel of the vehicle was taken out by

Forensic expert. The knob of gear shaft was also taken away by

experts. Packet of Balaji wafers was also found in vehicle. Police also

found packet of incense stick, jack, spanners, mirror, car tape, cassette,

comb, washing powder in the vehicle. Police seized those articles

under panchanama. Panchanama was prepared at ST colony. After


conclusion of panchanama, he signed it.

209] In cross-examination, witness admits that he does not

know the name of police officers. There were 5-6 police personnel

from Pune. None of them was present in the Court. So, it cannot be

said that he was pressurized by police officers to depose in the Court.

Witness further admits that, distance between his house and ST colony

is about 3 KM. No police officer came to his house on 5/9/05.

Witness further admits that his tailoring shop is at a distance of about

50 meters. from ST colony. This admission again shows the presence

of witness at ST colony was not co-incident, but he is having shop near

ST colony, therefore, he found there. Witness categorically admits

that, timing of his shop was from 8 am to 8.30 pm. He also admits

that, he reached ST colony i.e to the spot, at about 11 am. When he

reached there, police staff was present there. There were police

vehicles. He does not know as to what happened prior to his reaching

to the spot. The spot was situated in the society. The Sumo was

parked in front of the house of Ajit. This again confirms the evidence

of Ajit, who categorically stated that, he had parked the jeep in front of

the house as per say of Nitin Modha. Witness confirms that, Ajit stays

on the second floor of the building. There was no watchman. He met

police at Gorwa police station when he reached there. It shows that

after panchanama, he had been to the police station and thereafter he

met the police officers. He knows Ajit Kahar. But, he has no close

acquaintance with him. He admits that, he used to meet Ajit once in a

day. Ajit did not own Sumo. He does not know the type of key chain of

the key of Sumo. The said facts confirm the presence of witness on

the spot. He admits that he does not remember how many signatures

were put by him. But, he volunteers that he signed number of

documents as told by police. He also admits that, police seized about

45-50 articles. The articles were sealed separately by wrapping them


in brown paper. The said admission again confirms the seizure of

articles from the Sumo.

210] Witness further admits that, he did not meet person by

name Rathod and a lady namely, Dave, or a person namely Waghila,

that day. The said persons are not referred in the panchanama. It is

not revealed as to why the said questions were put to the witness. He

further admits that, video shooting was carried out. Photographs were

also taken. He did not notice that the police were having any steering

wheel, knob of the gear and the seats with them. Police did not bring

these articles from outside. After removing said articles, no new parts

were fitted. The said evidence is inconsistent with the evidence of Ajit

Kahar who stated that, police replaced steering, gear and seat and

original parts were taken for analysis. But, the fact remains on record

that, police had taken out steering wheel, knob of car and seat for

analysis. Therefore, non-fitting of the said parts does not affect the

evidence of witness.

211] Learned advocate Shri. Koshe has vehemently submitted

that, video-shooting was taken, but the said evidence is not produced

on record. Therefore, the adverse inference must be drawn. It appears

that, witness deposed about the video-shooting and photographs.

Panchanama is produced on record, which describes the events

occurred during panchanama. Similarly, the description of seizure of

each and every article is mentioned in the panchanama. There is no

whisper in the panchanama that, video-shooting and photographs were

taken during the panchanama. So, the evidence of panch witness on

that count, is exaggeration. Therefore, there is no question of

production of cassette of video-shooting and photographs on record.

Non-production of the same, does not affect the prosecution case,

because the act of seizure of Sumo by police is sufficiently established


from the evidence of witness Ajit Kahar and Chandrasing Solanki.

212] Witness Chandrasing further admits that it did not happen

that, police took folding seats in the rear part of the vehicle, it also did

not happen that police cut the piece of the leather foam on ceiling of

the vehicle and that of adjoining the doors of the vehicle. In fact, the

said seats and its leather were seized under panchanama. There are

number of articles seized. Therefore, the witness has not specifically

spoken about the said articles. But, he has specifically stated that

police seized one traveller's bag from the vehicle, which was probably

blue or black in colour. He also admits that, one person with white

beard was showing the articles inside the vehicle. Witness had no

knowledge of said person. It was suggested to him that police were

referring him as Narayan. But, it is denied. Witness has also deposed

that the tape was of Mitsubishi company. The battery of the vehicle

was taken out and seized. He also admits that, police seized number

plate. This part of evidence again confirms that he was present at the

time of panchanama and in his presence number of articles were

seized from the jeep, including steering wheel, knob of the gear, the

seats, tape recorder etc. On going through the evidence of Chandrasing

Solanki, prosecution has established the seizure of Sumo and its parts

under panchanama (Exh. 269). The evidence of Chanddrasing Solanki

substantiates the evidence of Ajit Kahar. So, if the evidence of Ajit

Kahar and Chandrasing Solanki along with evidence of investigating

officer Rajendra Joshi (PW 54) is read together, it is established that, at

the instance of Ajit Kahar, jeep was seized which was handed over to

him by accused Nitin Modha. There is sufficient evidence on record to

establish that said vehicle was used by accused for travelling from

Pune to Surat, Baroda and other places. Similarly, it was also used for

carrying abducted boy Sagar, at different places. Therefore, the

seizure of Sumo has much bearing on the case and it is major


circumstances against the accused.

213] I must mention here that, the articles seized from the Sumo

were sent to C.A for examination by letter Exh. 507. There were in all

32 items referred to C.A. Accordingly, C.A has submitted report at Exh.

322, wherein it was opined that, the samples at serial Nos. 1 to 6,

15,16,27, 28 taken from Sumo, were having blood of human origin

and its grouping was B. Similarly, the article at serial Nos. 13, 23 to 26

were having human blood, but its grouping could not be done.

Therefore, it can be said that the C.A. Report supports the prosecution

case that, Sagar was murdered in Sumo. Hence, there were bloodstains

in the Sumo jeep. The three rubber mats of Sumo, were also referred to

C.A., and accordingly C. A has submitted its report (Exh. 564), wherein

it is mentioned that rubber-mats were stained with blood. The said

blood was of human origin, but report of grouping is inconclusive.

Though Sumo was washed immediately after the incident by accused,

still, the articles were having human blood of B group.

214] On this point, the evidence of Jamsubhai Patara (PW 38) is

also crucial. In his presence police seized the clothes and articles of

deceased Sagar under panchanama (Exh. 371). According to him, on

27/8/05, police seized the jeans pant, T-shirt with stripes, holy string

and belt under panchanama. in cross-examination he admits that he

knows Kaprala police. He was called on several occasion by police. On

many occasions, he signed at the request of police. From the said

admission, it appears that, witness was stock witness of Kaprala police

station. But, it appears that, in his presence number of articles were

produced before police, which were seized under panchanama. The

said articles were sent to C.A. for examination. Accordingly, C.A has

submitted its report (Exh. 323), wherein it is mentioned that the

clothes, belt, remote of car and other articles found on the scene of


offence along with the dead body of Sagar were having human blood of

'B' group. So, it can be said that, blood group of deceased Sagar was

'B'. The articles found in the Sumo car were also having human blood

of 'B' group. So, seizure of articles from Sumo is also incriminating

circumstance against the accused.

Receipt of Rs. 2,75,000/- by Nitin Modha ( A 11).

215] It is the case of prosecution that Nitin Modha received

amount of Rs. 2,75,000/- on 22/8/05 through courier. Accused No. 11

and Chhotu Ghisaiwala (A 10) had been to said courier shop and

received the amount. To prove the said transaction, prosecution has

relied on the voluntary statement of accused No. 10 made in presence

of panch witnesses. The prosecution has examined Santosh Mane

(PW 25). He deposes that, on 16/2/06 he was called at police station

at 5.45 pm. It was told to him that accused present in the police

station intended to make some statement which was to be recorded.

He deposed that he does not recall the name of said accused, but he

identified the accused No. 10 before the court. In his presence accused

No. 10 made statement that he wanted to show the office of courier

and accordingly, his statement was recorded under panchanama (Exh.

329). He further deposes that, accused guided police authorities and

panch witnesses followed him. Accused took them to the area

Mandavi and showed one courier shop. Accused told that money was

sent from Mumbai to said courier. Police made inquiries from the shop

owner who told that an amount of Rs. 2,75,000/- was received by him

from Mumbai. Thereafter police conducted panchanama. (Exh. 330).

The owner of shop produced receipt which was seized by police.

Witness identified receipt Exh. 331. The owner also produced

photocopy of receipt of UAE Exchange and Financial Services Ltd.,

Baroda branch, dated 22/8/05( Exh. 332). In the cross-examination,


witness admits that he works in jeweller shop at Madvi, Baroda. On

16/2/06 he was proceeding to his shop, at that time he was called by

police. Mr. Agashe from Pune police called him. He was at police

station for about one hour. About 7-8 persons were present in the

police station when he reached there. He admits that some accused

were handcuffed at that time. Police told him that handcuffed person

wanted to make a statement. He further admits that, nobody from

outside came to police station while he was present. Police obtained

his signature. He does not remember the name of courier shop. But

he volunteered that it was Vishnubhai Kantilal Angdia. He admits

that whatever he deposed was within his knowledge and memory. He

also admits that, he does not remember whether signature of owner of

courier shop was obtained by police. Receipt Exh. 332 was issued by

courier shop, on the basis of identification paper produced by accused

No.11. On the basis of said admission, learned advocate Shri. Koshe

submits that, accused was handcuffed at the time of memorandum

statement, therefore, it cannot be considered as voluntary statement.

Hence, it should be ignored. But, in view of the ratio laid down in the

case of Putalabai Bhimashankar Pattan Vs. State of

Maharashtra, reported in 2010 ALL MR (Cri) 2084, the evidence

of panch witness and investigating officer is required tobe cosnidered.

Merely because accused was handcuffed, it does not mean that, his

statement was involuntary. Witness Santosh Mane has rightly

identified accused in the Court. He has categorically stated that,

accused made statement and led them to courier shop and the owner

of courier shop produced receipt and identification submitted by Nitin

Modha, were seized under panchanama. Therefore, the prosecution

has rightly proved voluntary statement and seizure of documents in

pursuance thereof.

216] The evidence of Santosh Mane is corroborated by


Mukeshbhai Patel (PW 40) who was working as manager with Patel

Vishnubhai Kantilal company who was engaged in the business of

courier. He deposes that, on 25/8/05 a person approached their

Mumbai office and told that he wanted to send amount of Rs.

2,75,000/- to Baroda. On the receipt, said person mentioned name of

Pruthvi Enterprises, Mumbai, as the name of sender and it was to be

delivered to a person Nitin S. Modha. Accordingly, receipt in respect of

receipt of amount of Rs. 2,75,000/214]- was issued to him. Thereafter

he sent said amount to Baroda branch along with delivery-man. Said

person delivered the cash at their Mumbai office (Exh.331). He also

deposes that deposit memo was issued in respect of the said

transaction, which he identified at Exh. 347. The said documents were

seized from the office of courier at Baroda in presence of Santosh

Mane, at the instance of accused No. 10.

217] In the cross-examination witness admits that he cannot tell

the name of a person whose handwriting appears on Exh. 331 and

347. The receipt issued to customer is in duplicate. He did not bring

with him receipt dated 25/8/05. He admits that, Exh. 331 and 347

bears his signature. He also admits that, he cannot tell who had

attended the customer on 25/8/05. The incident had taken place in the

month August 2005. Looking to the business of witness, it was difficult

for him to tell the name of scribe of receipt, after six years. But, he

admits that, in receipts Exh. 331, 347, the name of consignee is

written as Nitin Modha. He also admits that, he cannot tell which

branch office at Baroda, collected the amount. He also admits that,

there is no mention of denomination of currency notes. He admits

that, he did not handover the record of Mumbai branch to police. The

evidence of Mukeshbhai Patel ( PW 40) is crystal clear that Nitin

Modha had come to his shop on 26/8/05 and received the amount by

handing over his identification document, namely Exh. 332 and


accordingly, he issued receipt Exh. 347. The said receipt is in the

handwriting of witness Vishnu, therefore, from the evidence of Santosh

Mane, Vishnubhai Patel (PW 30) and Mukeshbhai Patel (PW 40), it is

established that Vishnubhai Kantibhai Angadia company had received

Rs. 2,75,000/- in their Bombay branch for handing it over to Nitin

Modha at Baroda. Accordingly, money was transferred by courier

company to its office at Baroda and on receipt of proper identification,

the said amount was paid to Nitin Modha on 26/8/05. Therefore, it is

established that accused Nitin Modha received Rs. 2,75,000/- on

26/8/05. Learned advocate Shri. Koshe, submits that, the alleged

amount was sent by Pruthvi Enterprises and not by Alibhai. It is true

that, in the receipt (Exh. 347), the name of sender is mentioned as

Pruthvi Enterprises. But, in the evidence of Approver, it is established

that the said money was sent by Bhai from Dubai. It was incumbent

upon accused No. 11 to explain that, the said transaction. But, no

explanation is given by him regarding receipt of Rs. 2,75,000/-. As I

have already observed that, the prosecution has established that

accused no. 11 has received Rs. 2,75,000/- on 26/8/05. Therefore, the

circumstance of accepting Rs. 2,75,000/- is incriminating circumstance

against accused No.11 involving him in the offence.

Test Identification Parade.

218] To prove the identity of accused, prosecution has relied on

the evidence of Vitthal Joshi (PW 41 and Sandesh Shirke (PW 45).

Vitthal Joshi deposes that, on 26/9/05 his office received letter from PI

Rajendra Joshi (PW 54) for conducting Test Identification Parade

(Ex.382). Accordingly he wrote a letter to Yerawada Jail and informed

them about holding of Test Identification Parade on 5/10/05.

Accordingly,on 5/10/05 at about 11/45 pm, he went to Yerawada Jail

along with two witnesses . He directed jail authorities to bring accused


before him. He informed them the procedure for conducting Test

Identification Parade. He ascertained the identity of accused. Then he

sent all the accused in different rooms. Thereafter he called accused

Prasad Shetty (A 2) and Arvindbhai Patel (A 4), Then he selected six

persons for each of the aforesaid accused having resemblance with

the age, height and physical features etc. from amongst the jail

inmates arranged by the jail authorities and made 12 dummies to

stand in a row. Then he also informed both the accused that they may

stand at any place as per their choice and may change their clothes,

after every round. At that time, the witnesses were directed to be

kept in a room near the entrance of the jail. Then he directed staff of

jail to bring one witness. The hall where the Test Identification Parade

was conducted was at the distance of 500-600 mtrs. from the the

room at the entrance of jail. Then he sent panch to bring the witness,

where Test Identification Parade was conducted. Accordingly,

witnesses Yogesh Jaiswal, Jayantibhai Patel, Govardhan Gupta, Suketu

Patel, Rajesh Raj, Ravi Shetty, Harish Shetty, Vinubhai Patel Arif Khatri,

Smt. Naina Mahida, Smt. Ushaben Patel were called one after other.

During the Test Identification Parade, Yogesh Jaiswal, Govardhan

Gupta, Rajesh Raj, Ravi Shetty, Harish Shetty, Arif Khatri and Smt.

Ushaben Patel did not identify any accused. However, Jayantibhai

Patel, Suketu Patel, Vinubhai Patel and Smt. Naina Mahida, identified

Accused No. 4.

219] Thereafter he called accused Jagmalsing Choudhary ( A 3)

and Bhikubhai Thanki (A 5) for Test Identification Parade. In the said

Test Identification Parade, Yogesh Jaiswal, did not identify any of the

accused. However, Jayantibhai Patel, Rajesh Raj, Vinubhai Patel Arif

Khatri, Smt. Naina Mahida and Smt. Ushaben identified accused No. .

3 and Govardhan Gupta, Ravi Shetty and Harish Shetty identified

accused No. 5.


220] Thereafter he called Jitu Modha (A 6) in the hall for Test

Identification Parade. But, none of the witnesses identified Jitu Modha

(A 6) in Test Identification Parade. Thereafter Approver Narayan

Jameria was called for Test Identification Parade, however, he was

identified by only witness Yogesh Jaiswal. Accordingly, he reduced in

to writing the events occurred in the Test Identification Parade under

panchanama Exh. 383.

221] Vitthal Joshi could not complete further Test

Identification Parade,on that day, as official time was over. Hence on

6/10/05 he conducted Test Identification Parade. He called accused nos.

2 and 4 in the hall. Accordingly, witnesses Shamal Mitra, Dattatraya

Kale, Dashrath Suryavanshi, Chimanbhai Patel, Anand Pandri, Sopan

Nimonkar, Jignesh Panwala, Jignesh Panwala, Parvinbhai Patel, Raju

Shetty, Deepak Sunariya, Kamlesh Modi, Ishwarbhai Patel, Shantilal

Vasava were called one after other. During the said Test Identification

Parade, Deepak Sunariya did not identify any accused. However,

Chimanbhai Patel, Jignesh Panwala, Jignesh Panwala,Parvinbhai Patel,

Raju Shetty, Ishwarbhai Patel,Shantilal Vasava identified Accused No. 2

and witness Shamal Mitra, Anand Pandri, Kamlesh Modi, identified

accused No. 4 and witness Sopan Nimonkar identified both the

accused persons.

222] Thereafter he called accused Jagmalsing Choudhary ( A 3)

and Bhikubhai Thanki (A 5) for Test Identification Parade. In the said

Test Identification Parade, Ninama Jalmani, Chimanbhai Patel, Anand

Pandri, Sopan Nimonkar, Jignesh Panwala, parvinbhai Patel, Raju

Shetty, Deepak Sunaliya, ishwarbhai Patel and Shantilal Vasava did not

identify any of the accused. However, witness Kamlesh Modi identified

accused No. 2 and Shamal Mitra, Dattatraya Kale, identified accused


No. 5 and Dasharath Suryavanshi identified both the accused.

Thereafter both the accused were entrusted to jail authorities.

223] Thereafter accused Jitu Modha (A 6) was called in the hall.

Witness Shamal Mitra, Dattatraya Kaled, Dashrath Suryavahsi, Ninama

Jalmani, Chimanbhai patel and Raju Shetty identified accused No.6.

However, Anand Pandri, Sopan Nimonkar, Jignesh Panwala, Parvinbhai

Paatel, Deepak Sunaliya, KamleshModi, Ishwarbhai Patel, and Shantilal

Vasava did not identify accused. Thereafter accused and dummies

were entrusted to jail authorities.

224] Then he called Narayan Jameria for Test Identification

Parade and he was identified by witnesses Ninama Jalmani Chimanbhai

Patel, Jignesh Panwala, Parvinbhai Patel, Ishwarbhai Paatel and

Shantilal Vasava. hen Vitthal Joshi prepared memorandum

panchanama (Exh. 385) and sent to PI Crime Branch.

225] In the cross-examination, witness admitted that he had not

issued letter to witnesses. He inspected the place where Test

Identification Parade was to be conducted. Witnesses were kept

present by Crime Branch. He does not know the names of the person

who issued letter to witnesses. He had intimated Crime Branch to

keep the witnesses present on 5/10/05. on the basis of said

admissions, learned advocate Shri. Koshe submits that, witnesses

should have been called by Ex. Magistrate, but he did not issue any

letter to them. In fact, the witnesses are from Gujrat, therefore, it was

difficult for Ex. Magistrate to secure their presence. Therefore, it

appears that, investigating officer and Crime Branch had taken

efforts to keep them present on given date. The evidence of Ex.

Magistrate is very clear that he had made arrangement of keeping

witnesses away from the hall where Test Identification Parade was


conducted. Witnesses were brought to hall by panch and the

employee of jail. Therefore, it appears that, the procedure is followed

by Ex. Magistrate. Witness further admits that he did not ascertain

the identity of accused as well as witnesses. He prepared list of

witnesses before starting Test Identification Parade but did not obtain

signatures of witnesses. The Test Identification Parade was held in the

hall. He wrote letter to jail authorities to keep witnesses present.

Therefore, there was no question of identity of the accused. As far

as identity of the witnesses is concerned, they were kept present by

Crime Branch, their names were recorded by Ex. Magistrate. Some of

the witnesses were examined in the case, they have specifically

deposed that they were called for Test Identification Parade at

Yerawada Jail wherein they identified some of the accused persons.

Therefore, there was no necessity for Ex. Magistrate to confirm the

identity of witnesses.

226] The witnesses examined in the Court have categorically

admitted in the cross-examination that, there was not resemblance

between accused and dummy accused. It appears that, the dummies

who were made available were used by him for Test Identification

Parade. Though Ex. Magistrate has stated that dummies were having

resemblance with the accused persons, but the said evidence bellied

by witnesses who were present at the time of Test Identification Parade.

Therefore, the evidence of Ex. Magistrate has relevance to the extent

that he was directed to hold Test Identification Parade, accordingly he

held Test Identification Parade in Yerawada Jail. There is major flaw in

the Test Identification Parade regarding selection of dummy accused

persons, because accused No.3 had injury on his head at the time of

Test Identification Parade. So, the person having similar injury or

bandage was not selected while Test Identification Parade. Therefore,

the Test Identification Parade to the extent of accused No.3 is doubtful.


227] The prosecution has also relied on the evidence of Sandesh

Shirke (PW 45). He deposes that, on 15/6/06 his office received

letter from Additional Commissioner of Police Crime-1 for conducting

Test Identification Parade (Ex.404). Accordingly he wrote a letter

(Exh.405) to Yerawada Jail and informed them about holding of Test

Identification Parade on 30/6/06. Accordingly,on 30/6/06 , he went to

Yerawada Jail along with two witnesses . He directed jail authorities to

bring accused before him. He informed them the procedure for

conducting Test Identification Parade. He ascertained the identity of

accused. Then he sent all the accused in different rooms. Thereafter

he called accused Chhotu Ghisaiwala (A 10). Then he selected six

persons having resemblance with the age, height and physical

features etc. of the accused, from amongst the jail inmates arranged by

the jail authorities and made them to stand in a row. Then he also

informed the accused that he may stand at any place as per his

choice and may change clothes, after every round. At that time, the

witnesses were directed to be kept in a room near the entrance of the

jail. Then he directed staff of jail to bring one witness. He sent panch

to bring the witness, where Test Identification Parade was conducted.

Accordingly, witnesses Dinubhai Patel, Ishwarbhai Patel, identified the

accused. In second round of Test Identification Parade, he sent panch

to bring the witnesses, where Test Identification Parade was conducted.

Accordingly, witnesses Paras Dodiya identified the accused. Thereafter

in next round, witness Parvinbhai Patel, he identified the accused. In

next round, witness Jayantibhai Patel was called, but he did not

identify the accused. Thereafter, witness Dilip Joshi and Ushaben Patel,

also identified the accused. Then accused and dummies were

entrusted to the jail authorities.

228] In the cross-examination, witness Sandesh Shirke admitted


that, he does not inquire in respect of period of police custody of the

accused, the places where he was taken an whether his photographs

were taken. He also does not verify about the belongings of accused.

There was a little bit of variance in the ages of dummies. He did not

record the full postal addresses of the dummies. He denied that

dummies were different in heights, hair styles etc. He does not

inquire the witnesses whether they had participated in earlier Test

Identification Parade. He does not mention in panchanama the serial

number starting from right to left side. But he volunteers that the

numbers are normally counted from the left side. The accused did not

go outside the hall. The witnesses were kept in a room adjoining the

entrance of the prison. It is brought on record that the distance

between the entrance of jail and the hall where Test Identification

Parade was held is 500 mtrs., therefore, there was sufficient distance

between the two places. Witnesses examined in the Court, namely

Jayantibhai Patel and Dilip Joshi, admitted that there was not

resemblance between accused and dummy accused. Therefore, it

appears that, the dummies who were made available were used by

him for Test Identification Parade. Though Ex. Magistrate has stated

that dummies were having resemblance with the accused persons,

but the said evidence is falsified by witnesses who were present at the

time of Test Identification Parade. Therefore, it appears that, he has not

taken proper care to select dummy accused.

229] Witness further deposes that on 27/10/06 he received

letter from Additional Commissioner of Police Crimes for holding Test

Identification Parade of Nitin Modha. Accordingly, he informed jail

authorities. On10/11/06 he went to Yerawada Jail along with panch

witnesses. Namely, Kailas Katke and Sanjay Shende. He called accused

No. 11 and informed him about the procedure of Test Identification

Parade. He selected six dummies. He ascertained the identity of


accused. Then he also informed the accused that he may stand at

any place as per his choice and may change clothes, after every

round. At the relevant time accused was wearing a cap. Accused was

informed to remove the cap, but he did not listen. Then he sent panch

to bring the witness, where Test Identification Parade was conducted.

Accordingly, witnesses Ishwarbhai Patel was brought, who identified

accused. Thereafter, witnesses Shantilal Vasava, Dilip Joshi,

jayantibhai Patel, Ushaben Patel, Vishnubhai Patel, Yogesh Jaiswal and

Dashrath Suryavanshi identified the accused No. 11. However,

witnesses Shamal Mitra and Soman Nimonkar did not identify the

accused. Thereafter accused was handed over to jail authorities.

230] In cross-examination, witness admits that dummies had not

worn cap. On the basis of said admission, learned advocate submits

that, there was difference between dummy persons and accused

hence, accused No. 11 was easily identifiable as he had worn cap. Ex.

Magistrate should have asked the dummies to wear cap, but no such

effort was made. Similarly, the accused No. 11 had special

identification mark namely, he is bald, similarly he is of fair

complexion. Therefore, the Ex. Magistrate should have selected such

dummies, but it appears that, he did not take any care and caution to

that effect.

231] The accused have also examined two witnesses namely

Baba Gaikwad (D.W. 1) and Atul Pawar ( D.W. 2) to demolish the

veracity of Ex. Magistrate. Baba Gaikwad deposes that since 2005 he

is in Yerawada Jail. On 5/10/05 and 6/10/05, he was not called by V.B.

Joshi. Similarly, he was never called in connection with the case of

accused. On the said dates he was not called in the Court hall of

Yerawada Jail for any purpose. In cross-examination he admits that, he

is convicted u/s 302 of IPC. He does not maintain his daily diary,


therefore, he is not recollecting each and every event occurred during

his stay in jail. Witness Atul Pawar has also deposes that, on 5/10/05

and 6/10/05 he was never called in connection with the case of

accused by jail authorities. He denied his presence at the time of Test

Identification Parade. On going through the Test Identification

memorandum, it appears that, Baba Gaikwad as well as Atul Pawar

were shown presetn as dummy accused. Ex. Magistrate V. V. Joshi has

categorically deposed that, he has called jail inmates as dummy

accused persons. The memorandum is proved by him, therefore, the

evidence of defence witnesses is not cogent and cognate. Both of

them don't maintain personal diary. They are in jail since prior to 2005.

Therefore, it is not possible for them to give every event occurred in

their life in the jail. The record prepared by Ex. Magistrate, appears to

be true. Therefore, defence witnesses did not make any complaint

that they were falsely shown present, at the time of Test Identification

Parade. The Ex. Magistrate had no animus against witnesses for

showing their false presence at the time of Test Identification Parade.

Therefore, I am not inclined to rely on the evidence of Baba Gaikwad

(D.W. 1) and Atul Pawar ( D.W. 2).

232] On the basis of evidence of Ex. Magistrates, Vitthal

Joshi (PW 41) and Sandesh Shirke (PW 45), learned Spl. APP Shri. Shah

submits that, the Test Identification Parade helped investigating

officer to confirm the identity of the accused. The accused are

identified by witnesses in the Court, therefore, though there is some

flaws in the Test Identification Parades, evidence of Ex. Magistrates,

cannot be disbelieved. To support his contentions, he has relied on the

ratio laid down in the case of Heera Vs. State of Rajasthan,

reported in AIR 2007 S.C. 2425, wherein it was held that :

“The purpose of Test Identification Parade is to check the memory


of eye-witness and also for prosecution to decide as to who can be cited as eye-witness. Parade to be held as early as possible after arrest of accused.”


“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 right lines.”

233] On going through the evidence of Ex. Magistrates, it

appears that, both of them had conducted Test Identification Parades,

wherein PW 6 identified accused Nos. 4,5,6; PW 7 identified accused

Nos. 4,5,6; PW 13 identified accused No. 4; PW 14 identified accused

No. 11 ; PW 15 identified accused Nos. 3,4 ; PW 16 identified accused

Nos. 2,3,5,6,10;, PW 21 identified accused Nos. 2,8 ; PW 24 identified

accused Nos. 4, 10, 11, and PW 33 identified accused Nos. 3 in Test

Identification Parades and all these witnesses identified accused No.

11 in Court also. So, it can be said that, most of the witnesses

examined in the Court have identified accused in court. Though there

is discrepancy in holding Test Identification Parade by Ex. Magistrates,

ocular evidence of witnesses cannot be brushed aside. The witnesses

have identified accused in Court. Therefore, prosecution has

sufficiently established the identity of accused Nos. 2, 4,5,6,10 and 11.

Seizure of articles at the instance of Chhotu Choudhari (A 4).

234] The investigating officer Shri. Agashe deposes that, on

16/9/05, he took search of the house of Accused No. 4 and seized SIM

cards, visiting cards and other papers under panchanama (Exh. 344).

To prove the said panchanama, prosecution has relied on the evidence

of Maganbhai Hansoti (PW 29). According to him, on 16/9/05, he was

passing in front of Vaikunth flat at Baroda. Police called him. Police


wanted to search the house. Hence, they requested him to act as a

panch witness and consented for the same. He further deposes that,

police took search of room No. 352, block No. 30 in Vaikunth Flat. The

said flat was owned by one Parmar, but Arvindbhai Vitthalbhai Patel

( Accused No. 4 ) was residng there. At the time search Accused No. 4

was present there. The house was situated on ground floor. The first

room was adm. 10 x 10' . There was kitchen, toilet and bathroom in

the said flat. Arvindbhai produced one diary from the cupboard. He also

proudced 5-6 visiting cards, SIM card and 2-32 other papers. The

police officers retrieved the numbers from the data of SIM card and

prepared its list. He also found Pulsar motor-cycle bering No. GJ-1/DM-

4000, which was also seized by police under panchanama. The diary,

SIM cards were sealed and seized under panchanama. In cross-

examination, witness admits that, SIM cardwas inserted in the mobile

of police officer and then data was retrieved. But, he does not know the

name of police officer as well as make and IMER number of said phone.

The list of telephone number is at Exh. 345. It consists telephone

numbers of Nayan Shetty, Nitinbhai, N.Bhai, Sheety bhai etc. But, the

investigating officer has not shown any nexus between seized articles

and crime. From the evidence of witness Hansoti, it is simply

established that investigating officer Agashe took search of accused

Arvindbhai ( Accused No. 4) and seized certain articles.

Seizure of articles at the instance of Bhikubhai Thanki (A 5).

235] According to prosecution, two mobile phones, two gold

chains, currency notes, ATM cards, railway tickets etc. were seized

during personal search by investigating officer R.V.Phuge. To prove the

same, prosecution has examined Ashokbhai Makwana (PW 31). He

deposes that, on 9/9/05, he along with Sonji Thakur were called at ATS

office Ahmedabad. In his presence police took search of Bhikubhai


Thanki (A 5) and found two mobile phones, one was of Nokia and other

of Reliance company, gold chain, 3 government currency notes of 500

denomination, driving licence, 2 ATM cards, railway ticket from Mumbai

to Ahmedabad, receipt of Air ticket, bus ticket etc. under panchanama

(Exh. 150). Witness has identified seized Article No. 100 to 110 and

Bhikubhai Thanki (A 5).

236] In cross-examination, he admits that one police officer

Nagraj was present and he put his 7-8 signatures as directed by

Nagraj. He also admits that, the 4 persons were handcuffed. It

appears that, personal search of Bhikubhai Thanki (A 5) was taken.

The articles were not seized in pursuance of the voluntary statement .

Therefore, it does not matter whether accused was handcuffed or not.

It appears that, data of phone was retrieved and and its list was

prepared. But, there is no evidence on record to show that, the said

data was retrieved by following the procedure by expert persons.

Similarly, the said data was also not used by prosecution to connect

the accused to the present crime. It is simply established that number

of articles were seized from the possession of accused when he was

arrested. From the evidence of witness it is simply established that

investigating officer R.V. Phuge, took search of accused Arvindbhai (

Accused No. 5) and seized certain articles.

Specimen signatures and handwriting of accused.

237] The prosecution has obtained specimen handwriting

signatures of accused Nos. 2,4,5 and Approver in presence of panch

witnesses, under different panchanamas, for obtaining of opinion of

handwriting expert. To prove the said fact, prosecution has relied on

the evidence of Kishor Pagare (PW 17), Rajendra Kulkarni (PW 18),

Uttam Awale (PW 19), Pandurang Dixit (PW 20) and Shakil Khan (PW


32). According to Kishor Pagare, he was called in the office of Crime

Branch on 21/9/05. He was informed that police wanted to take

specimen signatures and handwriting from some accused. He

consented to it. When he reached police station, accused Prasad

Shetty (A 2) was present in the police station. He was told by police

that accused made entries in the register of hotel Siddharth and

Deepmala in false names and therefore, specimen signatures and

handwriting of accused No. 2 were necessary for obtaining the opinion

of expert. He further deposes that, police authorities obtained 6

samples of handwriting, each, alike the contents in the register of

hotel Siddharth and Deepmala from accused No. 2. Police authorities

also obtained his six specimen of signatures. The signatures of panch

witnesses were taken on each page containing sample. Accordingly,

panchanama was drawn and he signed the same. (Exh. 289). In the

cross-examination, he admits that he is employee of railway. Prior to

that, he was working with travel agency. He admits that he had

contacts with police authorities of Crime Branch. Prior to panchanama,

he had never been to the office of Commissioner, Pune. The office of

Crime Branch is situated within the premisses of office of Commissioner

of Police, Pune, which is near the Railway Station. He also admits that,

he cannot tell the name of the police officer who called him at Crime

Branch. But, he admits that he met PI Rajendra Joshi (PW 54) at Crime

Branch. Other than himself, PI Joshi, accused and other panch were

present there at the time of panchanama. He also admits that,

accused was not asked whether he wanted to make someone present,

at the time of taking his specimen signatures and handwriting. Said

admission speaks that witness was present when specimen signatures

and handwriting of accused were obtained.

238] Prosecution has also relied on the evidence of Rajendra

Kulkarni (PW 18), in whose presence, specimen signatures and


handwriting of accused No. 2 were taken. He admits that, on 21/9/05

at about 5.45 pm, he was called at Crime Branch, Pune. He was told

that he was called to witness panchanama in respect of obtaining

specimen signatures and handwriting of two accused. According to

him, specimen signatures and handwriting of both the accused were

taken on six pages each, in his presence. Thereafter on those pages,

the signatures of panch witnesses were taken. Accordingly,

panchanama (Exh. 291) was prepared. He was present in the police

station for 1 to 1½ hours. However, witness has not identified the

accused whose handwriting was taken by police. In cross-examination

he admits that he had his fruit stall at Swargate. But, he does not

possess licence. Corporation has given him identity card as a vendor.

He admits that police authorities used to call him for some work. He

assists police authorities when called. However, he cannot tell as to

on how many occasions he was called by police authorities. He admits

that, he signed on the pages as per instruction of PI Rajendra Joshi

(PW 54). After affixing the signatures, he left. On the basis of said

evidence, learned advocate Shri. Koshe submits that, witness is stock

witness of police. He used to oblige police. It appears that, witness has

admitted that police authorities used to call him and he used to assist

police as and when called by them. But, he has categorically stated

that, in his presence specimen signatures and handwriting of two

persons were taken, but he has not identified those accused.

Therefore, his evidence is not helpful to prosecution to establish that

investigating officer has obtained specimen signatures and

handwriting of Prasad Shetty (A 2) and Bhikubhai Thanki (A 5).

239] Prosecution has also relied on the evidence of Uttam Awale

(PW 19) in whose specimen signatures and handwriting of accused

Chhotu Choudhari (A 4) were obtained. According to him, on 22/9/05,

while he was passing in the rickshaw in front of Commissioners office,


he was called by police authorities for panchanama. When he reached

to the police station, Chhotu Choudhari (A 4) was present. Police

authorities had taken out register of Divya lodge at Thane. He further

deposes that, according to police, in the said register, there were

some entries made by accused No. 4, samples alike the entries were

obtained by police authorities on 5-6 papers from accused No. 4. The

driver of rickshaw was also present as panch. Signatures of both the

panch witnesses were obtained on the papers on which the specimen

signatures and handwriting of accused were taken. Thereafter

panchanama was drawn (Exh. 293). In the cross-examination, witness

admits that he put 6 signatures on 6 papers. The papers on which

his signatures were obtained, were not shown to him in the Court. It

was suggested to him that, he was simply asked to sign on papers on

which specimen signatures and handwriting were already taken by

police. But, the said suggestion is denied. Therefore, from the

evidence of Uttam Awale, it can be said that police obtained specimen

signatures and handwriting of accused No. 4 in his presence under

panchanama.

240] The prosecution has also relied on the evidence of

Pandurang Dixit (PW 20), in whose presence specimen signatures and

handwriting of Approver Narayan Jameria were taken. Police wanted to

take specimen signatures and handwriting of Approver, as in the

register he mentioned his name as Narayan Thakkar. The registers

were in respect of Kohinoor Lodge and Lovely Guest House. For each

register six samples were taken on six different papers. Accordingly

panchanama was prepared (Exh. 297). The evidence of witness is not

denied by the defence.

241] According to Shakil Khan (PW 32), in whose presence

investigating officer has obtained specimen signatures and handwriting


of Bhikubhai Thanki (A 5), Police Authorities handed over six blank

papers to accused Bhikubhai Thanki (A 5) and he was directed to write

some material from visitors register of some hotel. Thereafter the

signatures of witness and other panch were taken on those papers,

under panchanama (Exh. 252). Witness identified Bhikubhai Thanki (A

5) in the Court. In the cross-examination, he admits that, in the year

2005, he was working with Raju Karanjawane as a labour, for

centering. In September 2005, the site was at Sadhu Waswani sqare.

The working hours were from 9 am to 5.30 to 6 pm. Police did not

come to the site in September 2005. He does not know Rajendra Joshi

(PW 54). When he had been to Crime Branch, he met PI Rajendra

Joshi (PW 54). He was called by constable. He met PI Rajendra Joshi

(PW 54) at about 6 pm on that day. In the office PI Joshi, two constables

and Bhikubhai Thanki (A 5) were present. At the time of panchanama,

he saw accused for the first time. At that time, accused was not

handcuffed. Nobody was veiled in the office of Crime Branch. Accused

was not tied with ropes. It was suggested to him, that his signatures

were obtained on 10 blank papers, but it is refuted by the witness.

There were no signatures of accused below the samples. Blank papers

were given to accused for obtaining samples. The title on the top of

documents Exhs. 354/1 to 354/6 were written by some police. On

perusal of the same, it appears that, the accused had written the

name as Narayan and he himself also put his signature. Therefore, it

appears from the evidence of Shakil Khan that in his presence police

obtained specimen signatures and handwriting of Bhikubhai Thanki (A

5) and conducted panchanama (Exh. 353).

242] It appears that, the specimen signatures and handwriting of

above accused persons were referred to Handwriting Expert.

Accordingly, Handwriting Expert has submitted his report along with

letter Exh. 565. The said report was not denied by defence.


Handwriting Expert opines that, he had examined documents, but it

was not possible for him to express any definite opinion on red

encircled writings and signatures written on disputed documents

namely Q-3, Q-3(a) Q-6, Q-7, Q-8, Q-9, Q-12, Q-13, Q-14, Q-15, Q-16,

Q-17, Q-19, and Q-21 respectively, in comparison with the specimen

signatures and handwriting, for want of sufficient identifying

characteristics. Handwriting Expert also opined that, the red-encircles

signatures marked Exhs. Q-2 and Q-18 show some similarities with

specimen signatures, however, it was not possible to express any

definite opinion on their common authorship on the basis of

comparison material. It is also opined that the person who wrote the

encircles writing on Exhs. S-1 to S-6 also wrote the red-encircled

writings marked Exh. Q-1; the person who wrote the encircles writing

on Exhs. S-7,12,13, 18 also wrote the red-encircled writings marked

Exh. Q-4,5 and the person who wrote the encircled writing on Exs. S-

19, 24, 25, 30 wrote the red-encircled writings marked Exh. Q-10,11.

243] It appears from the evidence of Approver that they had

stayed in different hotels at different times with bogus names. In the

hotel registers he had made entries and sometimes, accused Nos. 2,4,5

had signed the registers. On going through the specimen signatures

and handwriting, it appears that, accused persons had put their

signatures resembling to their signatures. It was expected from them

to put their signatures resembling to the signatures put by them on

the hotel registers. But, it appears that, it did not happen so.

Therefore, the opinion of Handwriting Expert is not in favour of

prosecution. Therefore, the effort of investigating officer to obtain

specimen signatures and handwriting for tallying with disputed

handwriting is went in vain. Therefore, said evidence is not helpful to

prosecution to substantiate the evidence of accused persons.


Seizure of mobile phones :

244] It is the case of prosecution that accused Nitin Modha ( A 11)

and Prasad Shetty (A 2) used mobile phones in order to contact the

complainant for demand of ransom. According to prosecution 6

mobile phones were seized from 2 persons Arif and Imran. For the

same, prosecution has relied on the evidence of Amjad Shah (PW 22)

who deposes that on 6/9/05 he was called at the office of ATS,

Ahmedabad for panchanama. Another panch Gaus was also

accompanied him. Two persons viz. Arif and Imran produced 6 mobile

phones which were seized under panchanama by police authorities. It

was told that the said mobiles were concerned in respect of some

abducting. Witness also deposes that the mobiles were of Nokia

company, they were red, blue, orange and black in colour. Police kept

those mobiles in envelopes, sealed and affixed labels. Then panch

witnesses signed the same (Articles 68 to 73). He has identified his

signature on panchanama Exh. 304. In cross-examination, he admits

that he cannot tell the name of person who called him for

panchanama. At the relevant time he was working as Medical

Representative. While he was passing in front of the office of ATS, he

was called. Police officer Shri. Pandya told him that mobiles were

seized from Arif and Imran. Mobiles were kept on the table. The sum

and substance of the evidence of Amjad Shah is that in his presence

Arif (PW 33) and Imran produced 6 mobile phones under panchanama.

245] To substantiate the evidence of Amjad Shah, the

prosecution has also relied on the evidence of Arif Khatri (PW 33). He

deposes that, he was employed with M/s Neema Telecom, Vadodara,

for repairs of mobile. Rajesh Jaswantsing Raj also works there. On

20/8/05 a person of fair complexion with French-cut beard along with

a person having black complexion visited his shop. He inquired in


respect of purchase of mobiles. The person with fair complexion

purchased second-hand mobile of Nokia make, model No. 3610. He

purchased it for Rs. 1300/-. A SIM card of Idea Cellular company was

also arranged and furnished to him. At the time of issuing SIM card, he

demanded documents of identity proof, however, the said person

replied that he would furnish it within two days and he insisted for

issuing SIM card, on saying that he knew the owner of the shop. At

that time, he also recharged his Reliance mobile phone at his shop.

246] Witness Arif Khatri further deposes that, again on 22/8/05

said persons returned to him as the phone sold to them was not

working. He further deposes that, he kept the said cell with him and

called him on 24/8/05. On that day he gave him mobile of Nokia make,

model No. 3350. On 25/8/05, said persons again returned and sold

mobile, Nokia make 3350 for Rs. 4,000/- to him and left. On 6/9/05,

police authorities approached the shop and made inquiries with him.

Accordingly his statement was recorded. He further deposes that,

mobile phone ( 3350) returned to by fair person, was sold by him to

person viz. Nerendra. He further deposes that, he was called at

Yerawada Jail for Test Identification Parade, wherein he identified

Jagmalsing Choudhary ( A 3). Similarly, he also identified Nitin Modha (

A 11). However, it appears that, witness has wrongly identified

Jagmalsing Choudhary ( A 3). According to prosecution, Prasad Shetty

(A 2) had been to mobile shop along with Nitin Modha.

247] In the cross-examination, witness Arif Khatri admits that

presently he is working at Anand. Imran Shaikh was the owner of M/s

Neema Telecom. He does not possess any document in respect of his

employment with M/s Neema Telecom. There were two employees at

M/s Neema Telecom in 2005 including him. About 30-40 customers

used to visit his shop. They were selling new as well as old mobiles.


While selling mobile, receipts were issued, which contains name of

purchaser, mobile number and cost. The bill was issued in duplicate.

Original was to be given to customer and office copy remains with

them. He admits that, he cannot tell as to how many mobiles were

sold by him on 20/8/05. He also admits that, he cannot tell the

number of second -hand mobiles available with him, on that day. He

also admits that, M/s Neema Telecom had no franchise of any mobile

company. It appears from the above cross-examination that, witness

was working in M/s Neema Telecom along with one another person,

similarly, they used to sale new as well as old mobile phones, though

he had no franchise from any company. He admits that, he was called

by ATS, Ahmedabad by Mr. Rajkumar Pandiyan and inquired for two

days. He was detained for two days. During the said period, his

signatures were not taken by the police authorities. None from the

mobile service providers were called. On the basis of said admissions,

learned advocate Shri. Koshe submits that, witness was suspected

accused, hence he was arrested. But, I am not inclined to accept the

said submission because, witness has himself admitted that he was

detained by ATS, Ahmedabad and similar evidence was given by

Rajkumar Pandiyan ( D.W.8). He deposes that he had detained some

persons from M/s Neema Communication. He admits that, he had

interrogated some local persons and information was supplied to Pune

police. He admits that he had interrogated official of telephone center

and some accused persons. He had interrogated Imran and Arif Shaikh

from Baroda. Therefore, it can be said that witness was detained for

inquiry and he was not arrested in any case.

248] Witness Arif Khatri further admits that, he had been to

Pune. He came to Pune on his own. He did not recall as to which ATS

officer he met at that time. He was at Pune for a day. Police did not

take him anywhere. He was inquired at the jail. At that time, he did


not receive any written intimation. He reached Yerawada Jail at about

10.30 to 11 am. He does not recall the time when he went inside the

jail and came out of it. He also admits that, his signatures were

obtained on some documents. He cannot tell the exact number of

persons present in the jail. He admits that nobody had showed him

any accused. He admits that, he was inside the jail for about 45

minutes to one hour. From the said evidence, it appears that, witness

was called at Pune for Test Identification Parade. He had been to

Yerawada Jail and he had identified Jagmalsing Choudhary ( A 3), Nitin

Modha in Test Identification Parade. As I have already observed that

identification of Jagmalsing Choudhary ( A 3) is incorrect and he

wrongly identified him instead of Prasad Shetty (A 2).

249] In the cross-examination by accused No. 3, witness admits

that price of mobile was paid by the person with French-cut. At the

relevant time accused No. 11 was having French-cut and he was

identified by the witness for the said reason. Similarly, witness has

admitted that he sold mobile to accused No.11, as he told that he

was knowing owner of shop namely Vickey @ Imran and showed his

visiting card. By the said suggestion, it is confirmed that accused No.

11 had been to the shop of M/s Neema Telecom and purchased cell

phone having model number 3350. Accused Nitin Modha returned

mobile phone to the witness as it was not working, thereafter he was

given mobile, model No. 3350 on 22/8/05 and he sold it to witness Arif

Khatri on 25/8/05 for Rs. 4,000/-.

250] To substantiate the evidence of Arif Khatri, prosecution has

relied on the evidence Naresh Navani (PW 26), who deposes that, he is

working as manager, with Krishna Enterprises since 2003, which was

engaged in sale and repairs of mobile phones. He knows Rajesh Raj

and Arif Khatri since December 2003. The said persons used to visit


his shop for the purpose of sale and purchase and repair of mobile

phones. In the year 2005, he purchased white coloured mobile of

Nokia make, model No. 3650, from Arif Khatri for Rs. 4,500/- and kept

with it. It had camera and colour display screen. On 15/9/05, police

authorities of Crime Branch came and told him that phone purchased

by him was used in crime by some accused persons. Therefore, it

was seized from him in presence of two panch witnesses. Thereafter

police recorded his statement. The said cell phone was kept in

envelope and sealed with wax. It was coloured mobile of Nokia

company of model No. 3650. Arif has given model number of mobile

which he sold to witness. But, on perusal of Article No. 134, it

appears that, it is having model No. 3650 and not 3350. Therefore,

the evidence of Arif is substantiated by Naresh Navani on material

particulars. In the cross-examination, Naresh Navani admits that he

does not know the manufacturing date of seized mobile. He admits

that, new model 3650 was costing around Rs. 8,500/-. He possessed

said mobile for 20 days, but he did not use it. It is suggested to him

that police authorities seized said mobile from him and he gave false

evidence at the instance of police, but it is refuted.

251] To prove the seizure of Nokia mobile model No. 3650,

prosecution has relied on Prashant Panchal (PW 27). According to him,

on 15/10/05 he was called at shop Krishna Enterprises by police

authorities. When he reached the shop, he was told that mobile needs

to be seized under panchanama from the said shop. Naresh Navani

produced mobile, in his presence, before police authorities and it was

seized under panchanama (Exh.336). He identified his signature on

panchanama and also identified mobile, which was of Nokia company

model No. 3650. Witness admits that he was working in a private

Insurance Company. His place of work was at 2 KM distance from the

shop of Naresh Navani. His residence was at a walking distance of 10


minutes from shop of Naresh Navani. He was called at the shop at 7.30

pm, by police. He was at the shop till 9 pm. Maharashtra police were

present there, they were accompanied with Gujrat police. He could not

give the names of said police. He also admits that, one Firoz was

another panch. He was in mobile business. From the said cross-

examination, it is confirmed that police seized mobile of Nokia

company, model No. 3650, from the shop of Naresh Navani in presence

of Prashant Panchal under panchanama (Exh 336). Naresh as well as

Prashant identified seized mobile (Article No.134).

252] From the evidence of witness Arif Khatri, Naresh Navani

and Prashant Panchal, prosecution has proved that accused No. 11 had

purchased mobile phone from Arif and thereafter he sold it to him

which was purchased by Naresh Navani and substantially it was seized

by police. No call details were obtained by investigating officer to

connect the seized mobile with the crime. Similarly, the evidence of

Approver is lacking on the point of use of seized mobile by accused

No.11. The investigating officer should have collected call details of

mobile phone alleged to have been used in the crime. But, no call

details of accused No. 11 were produced on record. Therefore, seizure

of mobile phones, is not useful to prosecution.

253] Learned advocate Shri. Koshe, submits that, the ATS Gujrat

had arrested some other accused persons in the crime, but the said

accused were subsequently let off, and present accused persons were

falsly implicated in the crime. To substantiate his point, he relied on the

news article published in daily Akila and Sandesh. To establish the

said facts, accused relied on the evidence of Dahyaji Vanjara (D.W. 7) ,

Rajkumar Pandiyan (D.W. 8), Ketan Khatri (D.W. 5) and Shena Vaidya

(D.W.6).


254] According to D.G. Vanajara, he was DIG, but he never

contacted Kaprala police station in connection with CR No. 58/05. He

deposes that, he was contacted by Crime Branch, Pune, in connection

with the CR No. 267/05 registered with Pimpri police station. He also

deposes that in the month of August, 2005, police officers Agashe, Joshi

and Jadhav of Crime Branch , Pune had met him. But, he denied that,

he had arrested some persons in connection with CR No. 267/05. He

also denied that he had supervised investigation carried out by Crime

Branch, Pune. But, he deposes that, S.P. Rajkumar Pandiyan (D.W. 8)

had assisted Crime Branch, Pune. He deposes that, there is lockup in

ATS office and now it is regarded as police station. He deposes that,

he might have granted permission to intercept calls of suspects. From

his evidence, it is not established that, ATS had arrested any person in

CR No. 267/05 of Pimpri police station.

255] The evidence of Rajkumar Pandiyan (D.W. 8) is also crucial.

He deposes that, on 28th or 29/8/05, Pune police had contacted him and

he had provided assistance to them for about a week. He also

deposes that, ATS officers had collected details of second hand mobile

handsets from M/s Neema Communication Center. He had interrogated

some local persons in connection with CR No. 267/05 and supplied

information to Pune police. He also deposes that he had interrogated

officials of M/s Neema Communication and some accused persons. He

had also interrogated Imran and Arif Shaikh from Baroda. He also

deposes that, said persons were kept in ATS office and not in ATS lock-

up. He has specifically denied that he had arrested any local person in

CR No. 267/05. Therefore, the evidence of Rajkumar Pandiyan (D.W. 8)

is also not helpful to defence to establish that, local accused were

arrested by ATS Gujrat in connection with present crime.

256] As far as news articles published in newspaper Akila is


concerned, the defence has examined Ketan Khatri (D.W.5), who

deposes that, he is working in daily evening newspaper Akila which

publishes from Rajkot. His journalists receive crime information from

reliable sources as well as from Press note from police. He was shown

news article appeared in his newspaper on 1/9/05. The said news

article is encircled and marked as Exh. 609. Its English translation is

also produced on record.

257] In cross-examination, he admits that, the head line of news

article ( Exh. 609) is having question mark. Therefore, the said

information may be true or false. His paper had contacted ATS

Ahmedabad for confirmation of news, but his reporter could not contact

ATS Ahmedabad for the same. The news article (Exh. 609) was not

published as per the Press note of ATS Ahmedabad. On going through

the news article, it appears that, one Shaikh was arrested in

kidnapping case of Sagar Sahani. But, it was guess work and therer was

no confirmation from police. Therefore, the said article is not helpful to

defence that some accused persons were arrested by Gujrat police.

258] To prove the news article published in daily newspaper

Sandesh, defence has relied on the evidence of Neha Vaidya (D.W.6),

who deposes that, she is working as Dy.Manager in the office of daily

Sandesh. On 3/9/05, news article was published in Sandesh, regarding

Sagar Sahani. The said news article is encircled and marked as Exh.

613. Its Englisih translation is also produced on record. In cross-

examination, she admits that, news article ( Exh. 613) was not based

on official information. In the newspaper it was mentioned that, gang

of Vickey operated his network from Dubai through satellite phone.

Sagar was abducted by the said gang. The members of said gang were

Muslim youth and were provided mobile phones with prepared SIM

cards. But, there is no reference in the news item that some local


persons were arrested by ATS Gujrat. Therefore, the evidence of Sneha

is also not helpful to defence to prove that some suspects were

arrested by Gujrat police and thereafter they were let out for the

reasons known to them and present accused falsely came to be

arrested.

259] From the evidence on record, it is established that, Nitin

Modha accused (A 11) had hatched criminal conspiracy with

absconding accused to abduct Sagar for ransom and accordingly, in

fact, he abducted Sagar with the help of accused Nos. Prasad Shetty (A

2), Chhotu Choudhari (A 4), Bhikubhai Thanki (A 5), Jitu Modha (A 6),

Chhotu Ghaisaiwala (A 10) and Approver. Sagar was taken to various

places in Sumo jeep of accused No. 5. Accused No. 4 made elaborate

arrangement of the accommodation as well as food of these accused

and Sagar. Therefore, it is proved that the accused Nos. 2,4,5,6,10

and 11 committed criminal conspiracy to abduct Sagar for ransom.

Hence, offence u/s 120-B of IPC is proved against accused Nos.

2,4,5,6,10 and 11.

260] It is established on record that, in pursuance of criminal

conspiracy between, accused Nitin Modha (A 11), Prasad Shetty (A 2),

Chhotu Choudhari (A 4), Bhikubhai Thanki (A 5), Jitu Modha (A 6),

Chhotu Ghisaiwala (A 10) and Approver abducted Sagar from Pune to

various places at Gujrat. Accused No. 11 demanded ransom from the

complainant. Accordingly, complainant paid Rs. 15 lacs to absconding

accused Shamsuddin Kunni, out of which accused No.11 received Rs.

2,75,000/- which he distributed amongst, himself, Prasad Shetty (A 2) ,

Chhotu Ghaisaiwala (A 10) and Approver. So, offence u/s 364(A) r/w

120-B of IPC is proved against accused Nos. 2,4,5,6,10 and 11.

261] It is also established on record that, accused Nos. 2,4,5,6,


10, 11 and Approver aided and abetted each other to abduct Sagar in

the evening of 14/8/05 and he was confined at various places at

Gujrat till the evening of 25/8/05. So, it is established the said accused

confined Sagar for more than ten days. Hence offence u/s 344 r/w 109

of IPC is proved against accused Nos. 2,4,5,6,10 and 11.

262] It is also proved on record that in pursuance of the criminal

conspiracy, Prasad Shetty (A 2) at the instance of Nitin Modha (A 11)

killed Sagar by cutting his throat by knife. Chhotu Ghisaiwala (A 10)

caught hold the hands and legs of Sagar while cutting his throat and

accused No. 11 helped to Prasad Shetty (A 2) by catching Sagar,

while killing Sagar. Therefore, the offence u/s 302 r/w 120-B of IPC is

also proved against Prasad Shetty (A 2), Chhotu Ghisaiwala (A 10) and

Nitin Modha (A 11).

263] It is come in the evidence of Approver that accused Nos.

2,10,11 threw dead body of Sagar in the forest area of Kaprala in the

night of 25/8/05. The said fact is established from the evidence of

Bistubhai Ghotiya, Kisanbhai Konti, Bhimjubhai Radiya and Rambhai

Zala. So, it is proved that said accused Nos. 2,10 and 11 committed

murder of Sagar and caused the evidence to disappear by throwing

dead body of Sagar in the forest area with intention of screening

themselves from legal punishment. Hence offence u/s 201 r/w 120-B

of IPC is proved against accused Nos. 2,10 and 11.

264] It is also proved on record that when Sagar was kidnapped,

Nitin Modha snatched Rs. 5,000/- from his person. It is also proved

that Sagar had concealed Rs. 24,000/- in his socks, which were also

snatched by Nitin Modha. Therefore, I hold that Nitin Modha (A 11) has

robbed Sagar for Rs. 29,000/-. Hence, offence u/s 392 of IPC is proved

against accused No. 11.


265] It is also proved on record that, Sagar was having gold

chain and bracelet. It is proved on record that while throwing dead

body of Sagar in the forest, Nitin Modha snatched the gold chain and

bracelet of Sagar. Therefore, offence u/s 404 of IPC is proved against

accused No. 11.

266] It is proved on record that, accused No.1 was present in

the office of absconding accused Shamsuddin when complainant and

Sudhir Sahani had been there to pay ransom of Rs. 15 lacs. It is

proved that accused No.1 was working with Shamsuddin as office-

boy. He used to stay out of cabin. He was simply called by accused

Shansuddin for counting the notes, therefore, it cannot be said that

accused No.1 had any criminal intention to provide help and aid to

Shamsuddin while committing the crime of receiving ransom. Except

the evidence of complainant and Sudhir Sahani there is no evidence

on record to establish that accused No.1 had any criminal intention to

count the money in order to help absconding accused Shamsuddin.

Therefore, the evidence on record is not sufficient to prove any charge

against accused No. 1 beyond reasonable doubt.

267] It is proved on record that Jagmalsing Choudhary ( A 3) did

not accompany accused No. 11 to Pune at any point of time. It is come

on record that, accused No. 3 had provided food articles to accused

Nitin Modha and others when they had come to Baroda. Except the

said evidence, there is no material on record to establish that he had

played any role in criminal conspiracy to abduct Sagar. Therefore, the

charge levelled against accused No. 3 is not proved beyond the shadow

of reasonable doubt.

268] It is proved on record that, accused Samantbhai Gadhvi (A


7) and Ajay Gadhvi ( A 8) had accompanied Approver and Nitin Modha

to Pune during first trip. There was no attempt made by Nitin Modha

for abduction of Sagar. Approver has admitted that Samantbhai

Gadhvi (A 7) was taken as driver of car and he had asked his cousin

Ajay Gadhvi ( A 8) to accompany him as spare driver. Therefore, it

can be said that no intentional aid was provided by them to Nitin

Modha to commit offence of abduction. It is proved on record that,

Samantbhai Gadhvi (A 7) and Ajay Gadhvi ( A 8) did not take part in

criminal conspiracy hatched by accused No. 11 to abduct Sagar for

ransom. It is also brought on record that Samantbhai Gadhvi (A 7)

had invested Rs. 1 lac with Bhikubhai Thanki (A 5), who had started

hotel at Pune. Therefore, Samantbhai Gadhvi (A 7) visited Pune to

recover his amount. The said fact is proved through the evidence of

Approver. Hence, it is proved that Samantbhai Gadhvi (A 7) had

independent cause to visit to Pune and he had taken his cousin Ajay

Gadhvi ( A 8) as spare driver. Therefore, the evidence on record is not

sufficient to hold them guilty in any way for the offence levelled against

them.

269] As far as accused Dinesh Tukadia (A 9) is concerned, he had

accompanied Approver and Nitin Modha in the second trip in July-

August 2005. It is proved that, there was attempt to abduct Sagar in

second trip. It is also proved that Nitin Modha had asked Approver to

chase car of Sagar at that time Dinesh was not present in the car, he

was waiting for Approver and Nitin Modha below Nigdi bridge. He had

no idea about the proposed plan of Nitin Modha. Similarly, it is also

proved on record that Dinesh had come to Pune, as driver on Ciena car

owned by his brother-in-law. The said car was taken on hire by Nitin

Modha. Therefore, there is no material on record to establish that

Dinesh Tukadia (A 9) is any way aided Nitin Modha in committing

crime u/s 344 r/w 109 of IPC.


270] Now it is to be seen whether provisions of MCOC Act are

applicable against the accused. As far as offences under Maharashtra

Control of Organised Crime Act, 1999 (MCOCA) are concerned, the

accused are facing offence u/s 3(1)(i), 3(2) and 3(4) of MCOCA. In order

to prove the offence under MCOC Act, the prosecution is required to

prove approval and sanction to the prosecution.

271] The investigation of offence under IPC was carried by PI

Rajendra Joshi (PW 54). He was supported by PI Balkrishna Agashe

(PW 51), Ovhal and Gaikwad. Rajendra Joshi (PW 54) deposes that, on

15/9/05 he gave letter to UAE Exchange and Financial Services, for

providing details of money transfer (Exh. 515). In view of letter,

branch head Manojkumar of UAE Exchange and Financial Services,

branch Baroda, produced two original documents in respect of money

transfer along with other document (Exh.516). He also produced two

receipts and two duplicate copies of receipts and one copy of identity

card of Nitin Modha (Exhs. 516-A to E). Similarly, he also produced on

record letter containing details of amount paid to Prasad Shetty (A 2)

(Exh. 517). He also produced on record the office copy of receipt

issued to Prasad Shetty (A 2). He also produced on record office copy

of identity card of Prasad Shetty (A 2) and receipt issued to him dated

25/7/05 for payment of Rs. 9,070.49. The receipt Exh. 516-A and B,

shows that money was transferred by one Mohammad Alibhai from

Dubai to Nitin Modha ( A 11). Similarly, from the receipt issued to

Prasad Shetty (A 2) it appears that, the money was sent by Pappu @

Sayyed Khalid from Dubai. He also deposes that the investigation

revealed that accused Sayyed Abed Hussain Alibhai and Vickey @ Aftab

Alam Mohammad Ayub, r/o Azamgadh, were involved in the crime.

Accordingly, he submitted his report to Pimpri police station (Exh.541).

He obtained previous charge-sheet of absconding accused and sent


proposal to Additional Commissioner of police, Pune, to invoke

provisions of MCOC Act, on 8/11/05 (Exh. 542). On the basis of said

proposal, the Additional Commissioner of police, Crimes, accorded

approval to invoke provisions of MCOCA vide order dated 22/11/05

(Ex. 474).

272] In the cross-examination, PI Rajendra Joshi (PW 54) admits

that, he did not get any information regarding period of stay of

absconding accused Alibhai and Vickey in India. The information of

Alibhai was received 15 days prior to his arrest after issuance of red

corner notice. He was arrested by Hyderabad police and he got him

transferred. He also admits that, Alibhai was arrested by Hyderabad

police u/s 364-A of IPC. He admits that at the time of submitting

proposal, no previous crime was registered against arrested accused.

He sent 3 certified copies of charge-sheets with proposal. So, it is

crystal clear that absconding accused Alibhai was facing more than

one charge-sheets and cognizance of the same was taken by

Competent Court. So, it is established that, accused Alibhai was

indulged in continuing unlawful activities along with accused Vickey

and others within preceding period of ten years. In this backdrop, the

evidence of Competent Authority who approved proposal, is very

crucial.

273] The proposal was approved by then Additional

Commissioner of Police Ashok Dhivare (PW 52). He deposes that, he

received proposal from P.I Crime Unit III, namely Rajendra Joshi, in

respect of C.R. No. 267/05, registered with Pimpri police station, Pune,

for invoking the provisions of MCOC Act against accused. Upon

considering the documents, he came to the conclusion that more than

one charge-sheet was registered against two accused out of 16

accused and competent Court had taken cognizance thereof. He also


formed his opinion that two accused had indulged in to commission of

organized crime for pecuniary gain by establishing the organized

crime syndicate. Hence, he granted approval (Exh. 473). Ashok

Dhivare (PW 52) directed ACP Sanjay Jadhav to carry out investigation

of offence. He also deposes that he directed ACP Unit II, to record the

confessional statement of Chhotu Choudhari (A 4) (Exh. 433). He

further deposes that, on 16/1/06, he addressed communication to

Additional Superintendent of Police, Central Bureau of investigation,

new Delhi for issuance of red-corner notice in respect of absconding

accused Sayyed Abed Hussain Alibhai and Vickey @ Aftab Alam

Mohammad Ayub. ( Exh. 476).

274] In the cross-examination, Ashok Dhivare (PW 52) admits

that, he received copies of FIR and certified copies of previous

charge-sheets along with proposal. He did not come across any

previous offence wherein all 16 accused were prosecuted. There was

no necessity to have offences registered against all the accused. There

was no material to show that any action was taken against the

accused in the Criminal law. Admittedly present accused were not

facing previous offences for pecuniary gain. He also admits that, he

did not prepare any notes before granting approval. In the proposal

there was no mention of previous offences committed in the State of

Maharashtra. He also admits that, in respect of absconding accused

Sayyed Abed Hussain Alibhai and Vickey @ Aftab Alam Mohammad

Ayub, no information was placed before him about their particular

residence for a particular period in India. He noticed that other than

the aforesaid two absconding accused, the charge-sheets produced

before him had no relevance with the other accused. He also admits

that, he was unable to tell whether the statements of neighbours of

accused were produced before him at the relevant time. He admits

that he was also unable to tell whether the information in respect of


family history and economical background was placed before him.

There was no necessity to obtain family history and economical

background of accused. What is required to be seen is criminal

antecedents. He admits that he had issued directions for recording

confessional statements of Narayan Jameria ( Approver ) and

Jagmalsing Choudhary ( A 3) on 6/12/05 and Chhotu Choudhari (A 4)

on 18/12/05. He also admits that he did not receive the information

regarding red corner notice issued by CBI. So, it can be said that

Ashok Dhivare (PW 52) perused the documents and record and

granted approval to invoke the provisions of MCOC Act against the

accused.

275] Now, it is to be seen whether absconding accused Sayyed

Abed Hussain Alibhai and Vickey @ Aftab Alam Mohammad Ayub, were

having previous crimes and Court had taken cognizance of the same,

during last 10 years. The prosecution has produced on record certified

copies of charge-sheets against absconding accused as well as

accused Ajay Gadhvi ( A 8) as under :

Police station

CR No. Offence u/s C.C. No. Name of accused

1 Bhakti nagar, Rajkot.

313/2000 302, 120-B, 188 of IPC and 25 of Arms Act.

39/04 Vickey @ Aftab Alam Mohammad Ayub, etc.

2 Jethpur, Rajkot.

320/2000 302, 120-B of IOPC and 25 of Arms Act.

117/02. Vickey @ Aftab Alam Mohammad Ayub.

3 Jubilee Hills, Hyderabad.

76/01 365, 34 IPC 10/04 Sayyed Abed Hussain Alibhai and Vickey @ Aftab Alam Mohammad


Ayub, etc.

4 Mumbai R.A.K.marg.

232/03 120-B, 364A, 302, 384, 34

of IPC

569/04 Vickey @ Aftab Alam Mohammad Ayub, etc.

5 Langar-house, Hyderabad.

42/04 364A, 506, 341, 120-B of

IPC ; 25 of Arms Act and C-3 of MCOC

Act.

3/04 Sayyed Abed Hussain Alibhai and Vickey @ Aftab Alam Mohammad Ayub, etc.

6 AECD CBCID, Mumbai.

111/04

(276/04

Mahim )

387, 34 IPC 463/04 Vickey @ Aftab Alam Mohammad Ayub, etc.

7 Umara Surat.

132/04 307, 120-B of IPC and 25 of

Arms Act.

960/04 Vickey @ Aftab Alam Mohammad Ayub.

8 Malakpeth, Hyderabad.

45/05 399, 468, 473 IPC and

25,27 of Arms Act.

12/04 Sayyed Abed Hussain Alibhai, etc.

Police station

CR No. Offence u/s C.C. No. Name of accused

1 Chatushrugi 263/04 454, 457, 380, 34 of

IPC

127/05 Ajay Parvat Gadhvi etc.

2 Swargate 648/04 454, 457, 380, 34 of

IPC


3 Deccan. 750/04 454, 457, 380, 34 of

IPC



276] As far as accused Ajay Gadhvi ( A 8) is concerned,

offences under IPC are not proved against him on record. Therefore,

the certified copies of charge-sheets produced by prosecution against

him, as above, may not help prosecution to prove the offence of

organized crime under MCOC Act against him.

277] On going through the above chart it appears that, the

charge-sheets at serial Nos. 3,4,5,6 are against absconding accused

Sayyed Abed Hussain Alibhai and Vickey @ Aftab Alam Mohammad

Ayub. Looking to the offence alleged against them, it can be said

that,the said offences were committed for ransom. Hence, it can be

said that, those were alleged to have been committed for pecuniary

gain. The said offences were committed by gang of Alibhai and Vickey

collectively. Thus, it can be said that, Alibhai had crime syndicate or

gang and they were indulging in activities of organized crime.

278] In the present case, it can be said that there was material

available for investigating officer to invoke the provisions of MCOC Act

and accordingly, the said proposal was approved by then Additional

Commissioner of Police Ashok Dhivare (PW 52). After application of

MCOC Act, the investigation was handed over to Sanjay Jadhav (PW

55). According to him, he received investigation of CR No. 267/05 on

22/11/05. He perused investigation papers. He moved application for

extension of time for investigation. It was accordingly extended till

6/12/05. He wrote a letter to Additional Commissioner of Police, Pune,

to record confessional statements of Approver and Jagmalsing

Choudhary ( A 3). Accordingly, Competent Authority appointed DCP

Ghurye to record confessional statement of Jagmalsing Choudhary ( A

3) and DCP Vitthal Jadhaav to record confessional statement of

Approver. Accordingly their confessional statements were recorded and

he received the same. On 12/12/05 he obtained police custody of


absconding accused Shamsuddin Kunni, accused Nos. 4 and 6

respectively. On 17/12/05 he referred report to Additional

Commissioner of Police for nominating competent officer to record

confessional statement of Accused No. 4. Accordingly, DCP Zone II,

Shri. A.D. Shinde recorded confessional statement of Accused No. 4.

He dispatched voice samples to Forensic Lab on 20/12/05 (Exh. 551).

He directed PI Ovhal to investigate in respect of the offences

registered at Hyderabad against absconding accused Alibhai and

Vickey. Accordingly, PI Ovhal submitted his report (Exh. 553).

279] On 5/2/05 API Milind Gaikwad submitted report in respect of

accused No. 10 (Exh.554). He received report from PI Joshi in respect of

investigation carried by him at Gujrat (Exh.555). On the basis of said

investigation carried by him, he submitted proposal for seeking

sanction to prosecute accused u/s MCOCA (Exh. 556). On 21/2/06

Competent Authority accorded sanction u/s 23(2) of MCOCA, hence he

filed charge-sheet against accused (Exh. 479). He further deposes

that, on 24/2/06 he forwarded report to Additional Commissioner of

Police for recording confessional statement of accused No.10 and

accordingly, DCP Solanki recorded the same. On 6/3/05, he referred

letter to Tahsildar for conducting Test Identification Parade in respect

of accused No. 10. On 30/6/06 Test Identification Parade of accused No.

10 was conducted. On 10/7/06 he sought permission u/s 23(2) of

MCOCA in respect of accused No 10 from Competent Authority (Exh.

561). On 15/7/06, he received information that accused No. 11 came

to be arrested at Delhi Airport while travelling, with the help of forged

passport. Accordingly, he sent team and arrested accused no. 11. On

24/7/06, sanction was accorded to prosecute accused No. 10 and then

on 26/7/06 he filed charge-sheet against accused No. 10. Thereafter

on 8/8/06 he made request to Competent Authority for appointment of

Competent Authority for recording confessional statement of accused


No. 11.

280] In the cross-examination, witness Sanjay Jadhav admits

that, he had received communication in respect of intercepting

international and national mobile numbers. He did not call

interception reports. Till filing of charge-sheet he did not receive such

reports. He did not record statement of Nodal officers in respect of

mobiles which were kept under surveillance. On the basis of same,

learned advocate Shri. Koshe submits that, no efforts were made by PI

to that effect. It is true that, the complainant had specifically stated

that he used to receive threat calls for payment of ransom. He had

given mobile number of caller. The order in respect of interception of

the same was passed, but unfortunately, investigating officer has not

tried its level best to obtain the report of service providers regarding

interception of telephonic calls. There is possibility that in spite of

direction, the calls were not intercepted.

281] In the cross-examination, he admits that, no accused sent

him a letter while they were in judicial custody. Similarly, no accused

sent letter in respect of his desire to give confessional statement

statement to him. He did not depute any officer to meet the

accused. He did not take any entry in station diary in respect of

willingness showed by the accused for confessional statement . On the

basis of said evidence, learned advocate Shri. Koshe submits that,

there was no written request made by accused persons for

expressing their desire to give confessional statement. It is specifically

stated by investigating officer that he had interrogated accused

persons and during that interrogation, they expressed desire to make

confessional statement and accordingly, Competent Authority were

appointed and statements of accused persons were recorded.

Similarly, none of the accused persons had retracted his confessional


statement. So, merely there were no written applications from accused

for recording their confessional statements, their confessional

statements cannot be vitiated. He also admits that, he did not receive

video cassette from Gujrat police. It is come in the evidence of

witnesses that police had taken video-shooting while preparing

panchanama of dead body of Sagar. The said cassette was not

handed over to investigating officer. The documents to that effect, in

the form of panchanamas are produced on record. Therefore, it cannot

be said that, there was major flaw in the investigation.

282] Witness Sanjay Jadhav further admits that arrested

accused have no concern with the absconding accused. It is true that,

present accused are not having any previous offences along with

absconding accused. The certified copies of charge-sheets filed on

record, shows that absconding accused Alilbhai and Vickey were

having crimes of such a nature, which can be called as organized

crime.

283] As far as sanction is concerned, witness Sanjay Jadhav

admitted that no sanction was received against accused No. 10.

Thereafter proposal was sent to Competent Authority and it was

granted. It was suggested to him that accused No. 10 was juvenile in

conflict with law, therefore, sanction was not accorded. But, said

suggestion is flatly denied. On going through the evidence of Sanjay

Jadhav, it appears that, he deputed police officers for recording

confessional statements of Approver, accused Nos. 3,4,10 and 11.

Accordingly, their statements were recorded by Competent Authority.

So, his evidence is formal in nature.

284] As far as the sanction to prosecution is concerned, it was

accorded by then Commissioner of Police D.N. Jadhav (PW 53).


According to him, on 9/2/06, he received report from Additional

Commissioner of Police Crime-1, Pune, seeking sanction to prosecute

the accused under provisions of MCOC Act. Upon perusal of the report

and documents appended thereto, he find it fit to grant sanction to

prosecute the accused under the provisions of MCOC Act. Accordingly,

he granted sanction vide order dated 21/2/06 (Exh. 479). Thereafter

he received the report dated 10/7/06 from investigating officer. On

perusal of report and documents, he accorded sanction to prosecute

accused Chhotu Ghisaiwala (A 10) on 24/7/06. Similarly, he received

report and documents seeking sanction to prosecute accused Nitin

Modha, accordingly he granted sanction (Exh. 481). In the cross-

examination, he admits that, he received the papers of investigation

and the documents in respect of criminal antecedents of absconding

accused Alibhai and Vickey. He mentioned about the said documents

in opening para of sanction letter. He does not mention about the

previous charge-sheets in respect of accused Alibhai and Vickey. It was

suggested to witness that no previous charge-sheet existed against

any of the accused as mentioned in sanction order (Exh. 479). But,

said suggestion is flatly refuted by the witness. The certified copies of

charge-sheet against Alibhai and Vickey are produced. Hence, said

suggestion has no legal significance. He also admits that, sanction

order does not mention about registration of any previous crime

against accused in State of Maharashtra. He admits that, while

passing order Exh. 479, sanction was not granted in respect of Chhotu

Ghisaiwala (A 10). In respect of accused No. 11, he had accorded

sanction and issued second sanction order (Exh. 479) against accused

No. 11. He also admits that, there is no need to re-issue sanction

against accused No. 11. He also admits that, two sanctions were

granted against accused no. 11. It appears that, second sanction was

granted against accused No. 11, due to oversight. None of the

sanctions vitiates the trial. Therefore, grant of sanction twice, will not


affect the prosecution case. In the said order it is specifically

mentioned that original accused Nos. 14,15,16 were having organized

crime syndicate and said syndicate had committed offences and

obtained illegal pecuniary benefit. The documents produced on record

(Exhs. 516-A to d , 517A to D) shows that accused Nitin Modha had

received amount from Mohd. Ali and Prasad Shetty (A 2) had received

amount from Pappu Alias Saeed Khalil from Dubai. Therefore, it can be

said that there was nexus between accused No.11 and these persons,

who were having more than one charge-sheets for offences

punishable for more than three years imprisonment. The cognizance

of the same was taken by Competent Court and cases are pending.

The certified copies of the same are produced on record. On going

through the said charge-sheets, it appears that, the said offences were

committed for obtaining pecuniary gain by absconding accused

Alibhai and Vickey. The absconding accused Alibhai and Vickey were

having criminal cases of the nature whereby it can be said that those

were committed for pecuniary gain, which proves the continuing

unlawful activities of said accused persons.

285] As I have already observed that accused Nitin Modha was

in contact with accused Alibhai, he received monetary benefit from

Alibhai from UAE, similarly, accused No. 2 had also such monetary

benefit from accused Pappu. The document to that effect is produced

and proved on record. Therefore, the prosecution has proved the

nexus between the absconding accused Alibhai and accused Nos. 2

for commission of offence of organized crime.

286] According to prosecution, accused No. 11 expressed his

desire to prove voluntary statement, hence, investigating officer

referred him to Competent Authority for recording his statement.

Accordingly, then Additional Commissioner of Police Rajendrasing


appointed Chhagan Wakde (PW 48), then DCP Zone I, Pune, to record

confessional statement of accused No. 11. According to him, on 9/8/06,

PI Rajendra Joshi (PW 54) produced accused no. 11 before him. He

then directed to leave Rajendra Joshi (PW 54). Accordingly accused

No. 11 was produced in his office. At that time, he along with his

computer operator constable Shri. Yadav and accused Nitin Modha

were present. He made inquiry with accused Nitin Modha in Hindi.

Accused Nitin Modha told that he was conversant with Hindi and

Gujrathi languages. On inquiry in Hindi, accused Nitin Modha gave his

name as Nitin Shantilal Modha, aged 26 years. On further inquiry, he

told that he was native of village Mokar, Tal. Ranabav, Dist. Porbandar

and at the relevant time he was residing at Sharaja, UAE. Upon inquiry

he further deposes that, he was studied up to 10th Std. witness

informed him his name and designation. Upon inquiry, he stated that

he was aware of the fact that he was produced in his office for

recording his confessional statement under the provisions of MCOC

Act. It was also informed to accused that it was not obligatory on his

part to give confessional statement or answer his questions and he

understood the same. Nitin Modha stated that he was aware that his

confessional statement could have been used against him in the

proceedings in the Court of Law. Nitin Modha also told that he was

neither pressurized nor promised anything for giving confessional

statement. He also told that he was neither physically assaulted nor

threatened during police custody. Witness ascertained the said fact by

removing clothes on person of Nitin Modha . Witness asked him as to

what confession he wanted to give. Over this, Nitin Modha told that he

wanted to tell in respect of abducting and murder of Sagar Sahani.

Thereafter he made Nitin Modha aware that he was given time to

rethink about his decision of giving confessional statement and would

be produced in his office on 10/8/06 at about 2.30 pm. It was also

informed to accused that it was not obligatory on his part to give


confessional statement when he would be produced on that day.

Witness recorded the same in question and answer form (Exh. 424).

287] Thereafter on 10/8/06, accused No. 11 was brought before

him by PSI Narote at about 2.45 pm. He directed PSI Narote to leave

his office. At that time, in his office, only constable Yadav and

accused were present. He inquired the accused in Hindi whether the

time given to him for cooling off was sufficient, which was answered

by accused in affirmative. On inquiry, he told that he was neither

physically tortured nor threatened or promised anything while in

police custody. Again, he intimated accused that it was not mandatory

for him to give confessional statement as it could be used against him

in the Court of law. At that time, accused told that he wanted to give

confessional statement on his own accord. He told that he wanted to

make statement in respect of abduction and murder of Sagar Sahani.

He recorded it in question and answer form. Upon it, he came to

conclusion that accused was willing to give voluntary confessional

statement in respect of abducton and murder of Sagar Sahani.

Accordingly, he made noting in English and started recording

confessional statement of accused No. 11 in Hindi as narrated by him.

After conclusion of confessional statement he read over its contents to

accused, in Hindi. He found the same to be correct. Thereafter the

accused and witness signed on each and every page of the

confessional statement. The confessional statement was followed by a

certificate in English language which he signed. (Exh. 425). He

further deposes that, thereafter he referred accused with PSI Narote to

the Chief Judicial Magistrate, Pune, along with covering letter coupled

with confessional statement in sealed envelope (Exh. 427).

Accordingly accused was produced before CJM on 11/8/06.

288] In the cross-examination, witness stated that, he did not


receive any documents along with communication dated 8/8/06. He

did not have any discussion with the investigating officer. On 8/8/06 he

issued letter to PI Shinde. PI Joshi introduced accused to him. He did

not verify the identity of accused. He also did not verify the sanction

under the provisions of MCOC Act against accused. He did not inquire

PI Joshi the period for which accused was in his custody. He admits

that, many persons were visiting Faraskhana police station. He did not

inquire in respect of the places where accused was taken during

investigation. The said inquiry was not material because what was

material, was whether accused gave his confessional statement

voluntarily and that too without any pressure, threat or inducement

of police. It appears from record produced by witness that Chhagan

Wakde (PW 48) had followed provisions of Criminal Manual as well as

he had taken care to verify whether accused was giving the statement

voluntarily and without any threat. He had given him sufficient time

for reflection of mind of accused. Even thereafter he took utmost care

to confirm whether accused was giving confessional statement

voluntarily. On second day, accused was produced before him and

thereafter statement was recorded. So, it can be said that the

statement of accused No. 11 was correctly recorded as per the

procedure. After recording of the confessional statement accused was

produced before then CJM Shri. Y.G. Chaware on 11/8/06. He verified

whether accused was tortured or harassed by police officers for

obtaining confessional statement. The statement of Nitin Modha (A 11)

was also recorded by CJM wherein Nitin Modha stated that he gave his

statement and he does not wish to state anything more than the

statement. He also stated that he was not harassed or tortured in any

way. Therefore, the evidence of Wakde is confirmed by CJM and

verified the voluntariness of accused to give the confessional

statement and recorded it. Therefore, statement recorded of accused

is voluntary. In the statement Nitin Modha has given minute details of


the incident right from the beginning, which substantiates the

evidence of Approver.

289] As far as applicability of provisions of MCOC Act are

concerned, the statement of Nitin Modha is very crucial because he

has specifically stated in his statement that, he was working at

Sharja, UAE. He lost his job. During that, he came in contact with

Alibhai and Vickey at Hyderabad. He agreed to work for them to earn

money. The said persons told him that he should abduct a person of

very rich family and then contact him so that they would extract

money from the parents of abducted person and then they would pay

him his share. It is further stated in confessional statement by

accused No.11 that he came to India, he went to Pune where he saw

Sagar. He came to know from his brother Jitu, that Sagar hails from rich

family, therefore, he decided to abduct Sagar, for which he took help

of his brother-in-law Bhikubhai Thanki (A 5), Prasad Shetty (A 2),

Chhotu Choudhari (A 4), Chhotu Ghisaiwala (A 10) and Approver. He

had given description of trips to Pune. Similarly, he gave telephone

numbers of Asif and Samant as 009715049909773 and

00971503024449. He also stated that after abduction of Sagar, he

was brought at Gujrat and then he stayed in various places along with

Prasad Shetty (A 2), Jagmalsing Choudhary ( A 3), Chhotu Choudhari (A

4), Bhikubhai Thanki (A 5), Chhotu Ghisaiwala (A 10) and Approver. He

had used three SIM numbers as 9824558278, 9824558298,

9898721068. He stated that he had recorded voice of Sagar on tape-

recorder which was sent to complainant through Chhotu Choudhari (A

4). The said cassette was received by complainant and then he decided

to pay the amount. He came to know from Asif that complainant paid

Rs. 15 lacs and he assured that he would get his share. He further

stated that, then he took Sagar in Sumo and in the night of 25/8/05.

Thereafter he asked Prasad Shetty (A 2) to kill Sagar, accordingly


Prasad Shetty (A 2) cut the neck of Sagar in the Sumo and Chhotu

Ghisaiwala (A 10) had held Sagar and then dead body was thrown in

the forest. Thereafter jeep was also taken to petrol pump and then it

was washed. He further stated that he received phone call from

Asif that he sent money and he is required to collect that amount and

accordingly, number was given to him. Thereafter he called person

on the said telephone number, who called him to his office.

Accordingly, he went there and received Rs. 2,75,000/-. Thereafter he

came back to Lodge and paid Rs. 70,000/- each, to Prasad Shetty (A

2), Chhotu Ghisaiwala (A 10) and Approver and then he took ticket for

Sharja and left on 2/9/05 and stayed there for about 4 months. The

said statement speaks that he had nexus with absconding accused

Alibhai and Vickey, who committed the offence.

290] Similarly, it is the case of prosecution that, Mahesh Ghurye

(PW 46) recorded the confessional statement of Jagmalsing Choudhary

( A 3). According to him, on 6/12/05 he received communication from

Additional Commissioner of Police, Pune, in respect of recording

confessional statement of accused Jagmalsing Choudhary ( A 3). He

sent letter to Additional Commissioner of Police, Crimes-1, Pune, to

produce accused before him. Accordingly, on 7/12/05 at about 5 pm,

he was produced by PI Rajendra Joshi (PW 54). He asked Rajendra

Joshi (PW 54) to leave his office. He ascertained that no police officers

was present in the vicinity of his office. At that time, he along with

his computer operator constable Shri. Yadav and accused were

present. He made inquiry with accused in Hindi. Accused told that

he was conversant with Hindi language. On inquiry in Hindi, accused

Jagmal Choudhary gave his name as Jagmal Bhuralal Choudhary, aged

about 28 years. On further inquiry, he told that he was native of

Rajasthan State and at the relevant time he was residing at Baroda,

Gujrat. Upon inquiry he further deposes that, he was studied up to


10th Std. He informed him his name and designation. Upon inquiry, he

stated that he was aware of the fact that he was produced in his office

for recording his confessional statement under the provisions of

MCOC Act. It was also informed to accused that it was not obligatory

on his part to give confessional statement or answer his questions and

he understood the same. Jagmal Choudhary stated that he was aware

that his confessional statement could be used against him in the

proceedings in the Court of Law. Jagmal Choudhary also told that he

was neither pressurized nor promised anything for giving confessional

statement. He also told that he was neither physically assaulted nor

threatened during police custody. He ascertained the said fact by

removing clothes on his person. He asked him as to what confession

he wanted to give. Over this, accused Jagmal Choudhary told that he

wanted to tell in respect of abduction and murder of Sagar Sahani.

Thereafter witness made him aware that he was given time to rethink

about his decision of giving confessional statement and would be

produced in his office on 9/12/05 at about 8.00 am. It was also

informed to accused that it was not obligatory on his part to give

confessional statement when he would be produced on that day.

Witness recorded the same in question and answer form (Exh. 412).

291] Thereafter on 9/12/05 accused No. 3 was brought before him

by PSI Pagare at about 8.15 am. He directed PSI Pagare to leave his

office. At that time, in his office, only constable Yadav and accused

were present. He inquired with the accused in Hindi whether the time

given to him for rethinking over his decision to give confession was

sufficient, which was answered by accused in affirmative. On inquiry,

he told that he was neither physically tortured nor threatened or

coerced during the said period. Again, witness intimated accused that

it was not mandatory for him to give confessional statement as it could

be used against him in the Court of law. At that time, accused told


that he still wanted to make statement in respect of abduction of

Sagar Sahani. Witness recorded it in question and answer form. Upon

it, he came to conclusion that accused was willing to give voluntary

confessional statement in respect ofabducting of Sagar Sahani.

Accordingly, witness recorded his satisfaction in respect of voluntary

nature of confession and commenced recording his confession. After

conclusion of confessional statement he read over its contents to

accused. He found the same to be correct. Thereafter the accused and

witness signed on each and every page of the confessional statement.

The confessional statement was followed by a certificate in English

language which he signed. (Exh. 413). He further deposes that,

thereafter the confessional statement was forwarded to Chief Judicial

Magistrate, Pune, along with his communication dated 9/12/05 (Exh.

414). He also referred accused to CJM, Pune.

292] In the statement, accused has given his personal

information regarding his family background and occupation. According

to him, in the year 2005, he was doing business of marble fitting. He

was having 2-3 labours. In December 2004 he was one labour namely

Chhotu Ghisaiwala (A 10). He was having mobile. He purchased red

colour Indica car bearing No. GJ-7/R-3315, in 2005, on loan. Chhotu

alias Arvindbhai Patel was driver on said car. On 28/7/05 Chhotu

Ghisaiwala (A 10) met him and they consumed liquor. Then they went

to cart of Dilipbhai and had food. Mean time, Prasad Shetty came

there. They had a talk with him, they told him to bring Indica car and

decided to go for consuming liquor. Then he was going to bring his

Indica car, mean time on the way, his bicycle slipped and he sustained

injury, therefore, he was admitted in the hospital. There, Prasad

Shetty (A 2) and Chhotu Ghisaiwala (A 10) came to meet him and

demanded his car to be used in the crime. But, he was not knowing

what sort of offence, accused wanted to commit. He had given his car


on hire along with driver. He stated that, after three days they have

telephoned him and disclosed him that due to rain, person who was

to be abducted was not found, hence they would come back within a

couple of days. Here again, he has not explained who had given call to

him. Therefore, the said statement is also ambiguous.

293] It is mentioned in the confessional statement of accused

No. 3 that, on 15/8/05, Prasad Shetty (A 2) called him and sought his

help for accommodation for 3-4 days. Thereafter he asked Chhotu

Choudhari (A 4) to make arrangement of stay of Prasad Shetty (A 2)

and others. Accordingly, Chhotu Choudhari (A 4) made arrangement of

their residence in the house of his sister. Then he made arrangement

of accommodation of Prasad Shetty (A 2) at Ataldara area and

obtained one house on rent. He further confessed that, when he went

to the room along with Prasad Shetty (A 2) and Chhotu Choudhari (A 4)

he introduced his friend Nitin Modha and told that he had big hotel at

Pune and also informed that abducted boy is son of friend of Nitin

Modha and he was abducted as his father owes some money to Nitin

Modha and Nitin Modha wanted to recover it. Then on 18/8/05 he was

called on the stall of Dilipbhai and thereafter again he was called by

Nitin at Ataldara, thereafter Nitin Modha asked Chhotu driver to take

cassette wherein voice of Sagar was tape-recorded. Accordingly, Nitin

Modha paid Rs. 2,500/- to Chhotu Choudhari (A 4) and then Chhotu

Choudhari went to Pune. The accused gave entire description of his

meeting with accused Prasad Shetty, Chhotu Ghisaiwala and Nitin

Modha from 16/8/05 to 22/8/05. Even if the said confession is read, at

the most, it can be said that, he had some idea that,boy was abducted

from Pune. But, he was not concerned with the said abduction as well

as demand of ransom. Similarly, he did not provide any help or

assistance to abductors.


294] The confessional statement of Chhotu Choudhari (A 4) was

recorded by Anant Shinde (PW 49). He stated that, on 18/12/05 he

received communication (Exh. 433) from Additional Commissioner of

Police ( Crimes) Pune, to record confessional statement of accused

Chhotu Choudhari (A 4). On the same day, he issued directions for

production of said accused before him on 19/12/05 at 9.30 am.

(Exh.434). Accordingly, on 9/12/05 at about 9.30 am, he was produced

by API Gaikwad and constable Katke. He inquired accused whether he

was willing to give confessional statement, he answered in affirmative.

Witness ascertained that no police officers was present in the vicinity

of his office. On inquiry he told that he was neither pressurized,

threatened nor promised anything to give confessional statement and

he wanted to give statement on his own volition . Upon inquiry, he

stated that he was aware of the fact that he was produced in his office

for recording his confessional statement under the provisions of

MCOC Act. It was also informed to accused that it was not obligatory

on his part to give confessional statement statement or answer his

questions and he understood the same. Chhotu Choudhari (A 4) stated

that he was aware that his confessional statement could be used

against him in the proceedings in the Court of Law. He also told that

he was neither pressurized nor promised anything for giving

confessional statement. He also told that he was neither physically

assaulted nor threatened during police custody. Witness asked him as

to what confession he wanted to give. Over this, accused told that he

wanted to tell in respect of abducting of Sagar Sahani. Thereafter

witness made him aware that he was given time to rethink about his

decision of giving confessional statement and would be produced in

his office on 20/12/05. It was also informed to accused that it was not

obligatory on his part to give confessional statement when he would be

produced on that day. Accordingly preliminary statement of accused

was recorded and his signature was obtained on it (Exh. 412).


295] Thereafter on 20/12/05 accused No. 4 was brought before

him by API Gaikwad at about 4.20 pm. He directed API Gaikwad to

leave his office. At that time, in his office, only his steno Dhanaji

Kamble and accused were present. He inquired with the accused in

Marathi whether the time given to him for rethinking over his decision

to give confession was sufficient, which was answered by accused in

affirmative. On inquiry, he told that he was neither physically tortured

nor threatened or coerced during the said period. Again witness

intimated accused that it was not mandatory for him to give

confessional statement as it could be used against him in the Court of

law. At that time, accused told that he wanted to give confessional

statement on his own accord. He told that he still wanted to make

statement. Upon it, he came to conclusion that accused was willing

to give voluntary confessional statement in respect of abduction of

Sagar Sahani. Accordingly, he recorded his satisfaction in respect of

voluntary nature of confession and commenced recording his

confession. After conclusion of confessional statement he read over

its contents to accused. He found the same to be correct. Thereafter

the accused and witness signed on each and every page of the

confessional statement (Exh. 436). He further deposes that,

thereafter the confessional statement was forwarded to Chief Judicial

Magistrate, Pune, along with his communication dated 21/12/05

(Exh. 437). He also referred accused to CJM, Pune. CJM had verified

the voluntariness of accused and made endorsement.

296] In the statement Chhotu Choudhari (A 4) has given

description of his role in the offence. Similarly, he also explained how

he came in the contact with Prasad Shetty (A 2) , Chhotu Ghisaiwala (A

10) , Nitin Modha and Approver. He also described his trip to Pune,

similarly he described about his help to accused after abduction of


Sagar. He provided food articles to accused thereafter he had carried

cassette to Pune and kept it in Khandoba temple at the instance of

accused. So, it can be said that this accused had knowledge about

the abduction of Sagar for ransom. So, he can be said that he had

taken part in criminal conspiracy for abduction of Sagar.

297] The prosecution has also relied on the confessional

statement of Chhotu Ghisaiwala (A 10). To prove the said statement,

prosecution has examined Shahaji Solanke ( PW 50). He deposes

that, on 25/2/06, he received communication (Exh. 444) from Additional

Commissioner of Police (Crimes) Pune, to record confessional

statement of accused Chhotu Ghisaiwala (A 10). On the same day, he

issued letter for production of said accused before him on 26/2/06 at

11.30 am. (Exh.445). Accordingly, on 26/2/06 at about 11.30 am, he

was produced by PI Rajendra Joshi (PW 54). He inquired accused

whether he was willing to give confessional statement, he answered in

affirmative. Witness ascertained that no police officers was present

in the vicinity of his office. On inquiry accused No. 10 told him that he

is conversant with Gujrathi and Hindi languages. He told his name as

Chotu @ Ravitsingh Savindersing Bhadodria @ Rajput, aged 21 years.

He also told that he was native of village Umredha, Tal. Bah, Dist. Agra,

U.P. He told that he was studied up to 7th Std. On inquiry he told that

he can read and write in Hindi and speak Gujrati. Then witness

informed him his name and designation. On inquiry he told that he

was neither pressurized, threatened nor promised anything to give

confessional statement and he wanted to give statement on his own.

Upon inquiry, he stated that he was aware of the fact that he was

produced in his office for recording his confessional statement under

the provisions of MCOC Act. It was also informed to accused that it

was not obligatory on his part to give confessional statement

statement or answer his questions and he understood the same.


Accused stated that he was aware that his confessional statement

could be used against him in the proceedings in the Court of Law. He

also told that he was neither pressurized nor promised anything for

giving confessional statement. He also told that he was neither

physically assaulted nor threatened during police custody. Witness

also verified by removing clothes of accused No. 10 that there were no

marks of injuries on his body. He asked him as to what confession he

wanted to give. Over this, accused told that he wanted to tell in

respect of abduction of Sagar Sahani. Thereafter he made him aware

that he was given time to rethink about his decision of giving

confessional statement and would be produced in his office on 27/2/06.

It was also informed to accused that it was not obligatory on his part to

give confessional statement when he would be produced on that day. It

was recorded in Question and Answer form. Accordingly preliminary

statement of accused was recorded and his signature was obtained

on it (Exh. 448).

298] Thereafter on 27/12/05 accused No. 10 was brought before

him by PSI Pawar at about 4.00 pm. He directed PSI Pawar to leave

his office. Accordingly, he l ft. At that time, in his office, only his

computer operator Shri. Kedari and accused were present. He

ascertained that nobody was present in the vicinity of the said

premises. Thereafter he asked questions to accused No.10 in Hindi

language. Upon inquiry, accused No. 10 told him that reflection time

given to him was sufficient for rethinking over his decision to give

confessional statement. On inquiry, he told that he was neither

tortured nor threatened or physically assaulted during the said period.

Again he intimated accused that it was not mandatory for him to give



statement at freewill on his own accord. He told that he was not


under any pressure for giving the statement. Upon it, he came to

conclusion that accused was willing to give voluntary confessional

statement. Accused informed him that he along with others abducted

Sagar Sahani from Pune and in spite of receipt of amount of ransom, he

was murdered. Accused therefore, told him that he wanted to tell all

the facts in respect of the same including his misdeeds by giving a

voluntary confession with his freewill on his own accord. Accordingly,

he recorded his satisfaction in respect of voluntary nature of confession

and commenced recording his confession. After conclusion of

confessional statement he read over its contents to accused. He found

the same to be correct. Thereafter the accused and witness signed on

each and every page of the confessional statement (Exh. 450). He

further deposes that, thereafter the confessional statement was

forwarded to Chief Judicial Magistrate, Pune, along with his covering

letter dated 27/2/2006 (Exh. 437). He also referred accused to CJM,

Pune. CJM had verified the voluntariness of accused and made

endorsement to that effect.

299] In the confessional statement of Chhotu Ghisaiwala

(Exh.450) has given description of his role in the offence. He stated

that, he was working with Jagmalsing Choudhary (A 3) for polishing

tiles. On 27/7/05, he met Nitin Modha at the stall of Dilipbhai. There he

also met Prasad Shetty (A 2). They all decided to visit Pune.

Accordingly, on 29/7/05 he proceeded to Pune along with Prasad Shetty

(A 2), Nitin Modha ( A 11), Dinesh Tukadia (A 9). He was told that at

Pune, one boy is to be abducted for extracting money from his father.

He went to Hirabag, Surat, along with Nitin Modha. There he met

Approver and Dinesh Tukadia and then all left to Pune in Indica car as

well as Ciena car and on 30/7/05 reached Pune where they stayed in

Kohinoor lodge and then in White-house hotel. On 5/8/05 they

returned to Baroda. At Pune, brother of Nitin used to meet Nitin in


hotel. He further stated that, Nitin Modha, Naran ( Approver ) had

followed the Santro of Sagar in his car but, they could not intercept it

hence returned to Baroda. Thereafter he has given details of events

occurred on 6/8/05 to 11/8/05 and 13/8/05. He stated that on 14/8/05

they proceeded to Pune. On reaching Express Highway, they halted

at petrol pump from where Nitin Modha called his brother Jitu and

asked whereabouts of Sagar. Jitu told that Sagar would leave at about

9 pm. They waited at petrol pump till 7.30 pm and then proceeded

towards Pune. On the way Nitin Modha asked Approver to stop the

car. Then he along with Nitin Modha, Prasad Shetty (A 2) alighted from

Sumo and stopped Santro. They all boarded Santro driven by Sagar.

Approver followed Santro. Then Santro was left at Somtane. Accused

Chhotu Ghisaiwala (A 10) gave description how Sagar was brought in

Sumo and their stay at various places. He also gave description of

events occurred till 24/8/05. He also described how Prasad Shetty (A

2) killed Sagar in Sumo at the instance of Nitin Modha. He stated that,

then Nitin Modha received money and he gave Rs. 50,000/- each to

Approver, Prasad Shetty (A 2) and himself. Then they went to Mathura

and then to Agra. He also visited his native place and stayed there. He

gave Rs. 20,000/- to his mother. He also spent Rs. 5,000/- for

purchasing clothes and for rent and then he went to Delhi, were he

was arrested by police. The statement of Chhotu Ghisaiwala (A 10)

also supports the version given by Approver, Chhotu Choudhari (A 4)

and Nitin Modha (A 11). So, it can be said that this accused had

knowledge about the abduction of Sagar for ransom and also took

active part in the murder of Sagar by holding his legs while Prasad

Shetty (A 2) was cutting his throat.

300] The prosecution has also relied on the confessional

statement of Approver which was recorded by Vitthal Jadhav (PW 47).

He deposes that, on 6/12/05, he received communication from


Additional Commissioner of Police (Crimes) Pune, to record confessional

statement of Approver. On the same day, he issued letter to A.C.P.

Sanjay Jadhav for production of said accused before him on 7/12/05 at

11.00 am. (Exh.417). Accordingly, on 7/12/05 at about 11.30 am,

Approver was produced by PI Rajendra Joshi. He then directed

Rajendra Joshi (PW 54) to leave his office, and he left. He also

ascertained that no other police officer was present near his office. At

that time, only his compute operator Ms. Nartaranan was present in

his office. He inquired accused about the languages he knowing,

Narayan Jameria he knew Gujrathi and Hindi languages. On inquiry

with Narayan Jameria, he told his name as Narayan Govindbhai

Jameria, aged 43 years. He also told that he was native of village

Bhod, Tal. Ranabav, Dist. Porbandar and at the relevant time he was

residing at Narayannagar, Poonagaon, Surat. He told that he was

studied up to 9th Std. Then he informed accused his name and

designation. On inquiry he told that he was neither pressurized,

threatened nor promised anything to give confessional statement and

he wanted to give statement on his own. Upon inquiry, he stated that

he was aware of the fact that he was produced in his office for

recording his confessional statement under the provisions of MCOC

Act. It was also informed to accused that it was not obligatory on his

part to give confessional statement statement or answer his questions

and he understood the same. Approver stated that he was aware

that his confessional statement could be used against him in the

proceedings in the Court of Law. He also told that he was neither

pressurized nor promised anything for giving confessional statement.

He also told that he was neither physically assaulted nor threatened

during police custody. Witness also verified by removing clothes of

Narayan Jameria that there were no marks of injuries on his body.

Witness asked him as to what confession he wanted to give. Over this,

accused told that he wanted to tell in respect of abducting and murder


of Sagar Sahani. Thereafter he made Approver aware that he was

given time to rethink about his decision of giving confessional

statement and would be produced in his office on 8/12/05 at 3.00 pm.

It was also informed to accused that it was not obligatory on his part to

give confessional statement when he would be produced on that day. It

was recorded in Question and Answer form. Accordingly preliminary

statement of accused was recorded and his signature was obtained

on it (Exh. 228).

301] Thereafter on 8/12/05 Narayan Jameria was brought before

him by PSI Pawar at about 4.10 pm. He directed PSI Pawar to leave

his office. Accordingly, he left. At that time, in his office, only his

computer operator Ms. Natarajan and accused were present. He

ascertained that nobody was present in the vicinity of the said

premises. Thereafter he asked questions to Narayan Jameria in Hidni

language. Upon inquiry, Narayan Jameria told him that reflection time

given to him was sufficient for rethinking over his decision to give

confessional statement. On inquiry, he told that he was neither

tortured nor threatened or physically assaulted during the said period.

Again he intimated accused that it was not mandatory for him to give



statement on his own volition. He told that he was not under any

pressure for giving the statement. Upon it, he came to conclusion

that accused was willing to give voluntary confessional statement.

Approver informed him that he was ready to disclose everything in

respect of abduction and murder of Sagar Sahani. Accordingly,

witness recorded his satisfaction in respect of voluntary nature of

confession and commenced recording his confession. After conclusion

of confessional statement he read over its contents to accused. He

found the same to be correct. Thereafter the accused and witness


signed on each and every page of the confessional statement

(Exh.229). He further deposes that, thereafter the confessional

statement was forwarded to Chief Judicial Magistrate, Pune, along with

his covering letter dated 8/12/05 (Exh. 418). He also referred accused

to CJM, Pune. CJM had verified the voluntariness of accused and made

endorsement to that effect.

302] The Approver by his oral evidence substantiated his

confessional statement on material particulars. He has described how

he came in contact with accused Nitin Modha, who took him to Pune,

thrice, thereafter how Sagar was tried to abduct and then ultimately he

was abducted and brought to Gujrat at various places and during the

stay, Nitin Modha had contact with many persons on his cell phones.

He has also substantiated that he had talk with Alibhai at Dubai, who

gave him message of payment made by him to Nitin Modha,

accordingly, Nitin Modha received the amount. The documents to that

effect are also produced on record. Thereafter he has given details of

events occurred during incident. He further stated that on 14/8/05

they proceeded to Pune. On reaching Express Highway, they halted

at petrol pump from where Nitin Modha was talking with somebody on

phone. Thereafter we waited at petrol pump till 7.30 pm and then

proceeded towards Pune. On the way Nitin Modha asked him to stop

the car and also stated that one Santro would come, and he would ask

for lift in it. Then he along with Nitin Modha, Prasad Shetty (A 2)

alighted from Sumo and stopped Santro. At that time, Prasad Shetty

(A 2) took out knife from the bag of Nitin Modha and concealed it in his

shirt. Then they all boarded Santro. Then Approver followed that

Santro. Thereafter they left Santro at Somatane. Sagar was asking as

to where they were taking him, over this, Nitin Modha told him that he

has to recover some amount from his father and when he receives

money from his father, he would be released. Thereafter Approver gave


the events in detail as to how Sagar was brought in Sumo and about

their stay at various places. He also described how Prasad Shetty (A

2) cut the throat of Sagar in Sumo on the say of Nitin Modha. He

stated that, then Nitin Modha received money from Bhai at Dubai and

he gave Rs. 50,000/- each to him, Prasad Shetty (A 2) and Chhotu

Ghisaiwala (A 10). Thereafter Nitin Modha demanded Rs. 30,000/-

from Approver, for his expenses at Porbandar and told that after Bhai

from Dubai send him money, he will give that amount to him. Then

Nitin Modha also told him to get back the ornaments pledged with

jeweller by giving amount to him. Then Approver received said

ornaments by paying Rs. 12,500/- to the jeweler. He also gave Rs.

1,000/- to paras towards taxi fare. Then on 30/8/05 Nitin Modha came

to Surat and called him there and took back his ornaments and also

told him to give him Rs. 6,000/- and assured that he would settle his

account after he receives the amount from Bhai at Dubai. Then they

consumed liquor and then Nitin left. Thereafter Approver went to his

village. During that period, Prasad Shetty was threatening him with

dire consequences if he discloses the incident to anybody. Thereafter

on 8/9/05 Approver received phone call of Bhikubhai Thanki (A 5) on

the mobile of his brother and called him at Hirabaug, when Approver

went there, he was arrested by police.

303] The confessional statements of Jagmalsing Choudhary ( A

3), Chhotu Choudhari (A 4), Chhotu Ghisaiwala (A 10) and Nitin Modha

( A 11) have substantiated the evidence of Approver on material

points. It is also established that accused Nitin Modha was constantly in

touch with absconding accused Alibhai at Dubai and he was acting as

per the instructions given by Alibhai for abduction of Sagar as well as

for recovery of ransom amount. Hence, the conclusion can be drawn

that, Nitin Modha (A 11) had hatched criminal conspiracy to abduct

Sagar from Pune and demand of ransom was made from his father.


Ultimately, he succeeded in extracting the money from complainant

Satinder Sahani, but Sagar was killed even after receiving the amount

of ransom. Therefore, the said activities were done for pecuniary gains.

304] Learned advocate Shri. Koshe submits that, provisions of

MCOC Act are not applicable, because no nexus is proved between

absconding accused Alibhai, Vickey and Nitin Modha (A 11). But, I am

not inclined to accept the said submission because, there is ample

evidence on record by way of documentary evidence as well as ocular

evidence of Approver which establishes the nexus between Nitin

Modha and absconding accused Alibhai, who is admittedly, facing

more than one charge-sheets of cognizable in nature, wherein there

are allegations of extortion, demand of ransom as well as murder for

ransom. Therefore, it can be said that absconding accused Alibhai and

Vickey alleged to have been committed offence for his pecuniary gain.

305] The MCOC Act defines continuing unlawful activity, as

organized crime and organized crime syndicate in section 2(d),(e),(f)

respectively, which can be read as under :

“Section 2(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 organized crime

syndicate or on behalf of such syndicate in respect of which more

than one charge-sheets have been filed before Hon'ble Apex Court a

within the preceding period of ten years and that Court has taken

cognizance of such offence;

(e) “Organised crime” means any continuing unlawful activity by

an individual, singly or jointly, either as a member of an organized

crime syndicate or on behalf of such syndicate, by use of violence or


threat of violence or intimidation or coercion, or other unlawful means,

with the objective of gaining pecuniary benefits, or gaining undue

economic or other advantage for himself or any other person or

promoting insurgency;

(f) “ organized crime syndicate “ means a group of two or more

persons, who acting either singly or collectively, as a syndicate or

gang indulge in activities of organised crime.”

306] Learned advocate Shri. Koshe has relied on the ratio laid

down in the case of Madan s/o Ramkisan Gangwani Vs. State of

Maharashtra, reported in 2009 ALL MR (cri) 1447, wherein the

Hon'ble High Court has given guidelines as to what is required to be

proved by prosecution, as under :

i. an activity,

ii. which is prohibited by law,

iii. which is a cognizable offence punishable with imprisonment

for three years or more,

iv. undertaken either singly or jointly,

v. as a member of organised crime syndicate i.e acting as a

syndicate or a gang, or on behalf of such syndicate,

vi. (a) in respect of similar activities (in the past) more than

one charge-sheets have been filed in competent Court

within the preceding period of ten years,

(b) and the Court has taken cognizance of such offence,

vii. the activity is undertaken by :

(a) violence, or

(b) threat of violence, or intimidation or

(c) coercion or

(d) other unlawful means,

vii. (a) with the object of gaining pecuniary benefits or


gaining undue or other advantage or himself or any other

person, or

(b) with the object of promoting insurgency.

In view of the said provisions, the aim and object of reason for which

MCOC Act is enacted, is as under:

“Organized crime has for quite some years now come up as a

very serious threat to our society. It knows no national

boundaries and is fueled by illegal wealth generated by contract

killings, extortion, smuggling in contrabands, illegal trade in

narcotics, abductings for ransom, collection of protection money

and money laundering, etc. the illegal wealth and black money

generated by the organised crime is very huge and has serious

adverse effect on our economy. It is seen that the organized

crime syndicate make a common cause with terrorist gangs and

foster narco terrorism which extend beyond the national

boundaries. There is a reason to believe that organized crime

gangs are operating in the State and thus, there is immediate

need to curb their activities.

It is also noticed that the organized criminals make

extensive use of wire and oral communications in their criminal

activities. The interception of such communications to obtain

evidence of the commission of crimes or to prevent their

commission is an indispensable aid to law enforcement and the

administration of justice.

The existing legal frame i.e the penal and procedural laws

and the adjudicatory system are found to be rather inadequate to

curb or control the menace of organised crime. Government has,

therefore, decided to enact a special law with stringent and

deterrent provisions including in certain circumstances power to


intercept wire, electronic or oral communication to control the

menace of the organised crime.”

307] In view of the definition of continuing unlawful activity,

organized crime and crime syndicate, it is to be seen whether accused

had committed organized crime because it is punishable under MCOC

Act. To prove continuing unlawful activities, prosecution has produced

on record, 8 previous charge-sheets filed against absconding accused

Vickey and Alibhai. The offences alleged therein, are punishable with

imprisonment of 3 years or more and cognizance of the same is

already taken by the Court for the said offences. Therefore, prosecution

has proved continuing unlawful activity of Alibhai and Vickey.

308] it appears from the previous charge-sheets filed against

Alibhai and Vickey that, they were committing continuing unlawful

activity jointly, as well as member of organized crime syndicate. It can

also be said that, they were indulging in continuing unlawful activity,

on behalf of crime syndicate by use of violence or threat of violence of

intimidation or coercion with object of gaining pecuniary benefit for

themselves and their associates. It is also proved on record that,

accused Alibhai and Vickey were acting either singly or collectively as a

syndicate or gang and indulging activities of organized crime.

309] I have already observed that the offences levelled against

absconding accused Alibhai and Vickey are in respect of pecuniary

gain. It is proved that Nitin Modha had constant contact with Alibhai

during the course of offence, he received financial aid from Alibhai by

way of money transfer. Therefore, it can be said that Alibhai was having

organized crime syndicate along with his associates. He was acting

along with his associates as a crime syndicate and was indulging in

activities of organized crime. The continuing unlawful activities of


Alibhai and Vickey and others are proved by filing copies of charge-

sheets. The organized crime syndicate of Alibhai and Vickey

committed offences, by use of violence, threat of violence,

intimidation, coercion and other unlawful means, with the objective of

gaining pecuniary benefits or gaining undue economic or other

advantage for himself and others. The said criminal activity was

prohibited by law, which was cognizable offence punishable with more

than three years or more and that had undertaken by jointly, or singly

or as a member of organized crime syndicate and more than one

charge-sheets have been filed before competent Court withing a

period of preceding 10 years. It is established that accused Nitin

Modha was in contact with Alibhai and he acted as per the instructions

of Alibhai for abduction of Sagar as well as demand of ransom from

complainant. Therefore, it can be said that, he conspired with Alibhai to

commit organized crime. Similarly, accused Nos. 2,4,5,6,10 conspired

with accused No.11 to commit abduction of Sagar for ransom. There

was no previous offence pending against these accused persons.

Therefore, it cannot be said that they were indulging in continuing

unlawful activity. But, as I have already observed that 2,4,5,6,10 and

11 conspired with Alibhai and Vickey to commit organized crime.

Hence, offence u/s 3(1)(2) of MCOC Act is proved against them.

210] It is also proved on record that accused Alibhai and Vickey

had organized crime syndicate. They were indulging in continuing

unlawful activity and they were indulging in organized crime. It is

established on record that accused Nos. 2, 4,5,6,10 and 11 were

having criminal conspiracy with Alibhai and Vickey and they were

acting collectively as a syndicate or gang indulging in activities of

organized crime along with absconding accused. Hence, offence u/s

3(4) of MCOC Act is also proved against these accused.


311] Before closing this judgment, I would like to put few words in

this judgment about Approver Narayan Jameria. He was also a party to

the plan engineered for collecting the amount of ransom. But, after

some days, he started repenting and he gave confessional statement

to the Magistrate. Later on he asked for pardon. Approver Narayan

Jameria initially or in the beginning gave nonchalant reaction to the

most heinous act. But, later on gradually crept into arena of timidity. It

is here things like repentance of an acute degree came in to picture,

because Approver was an unperturbed as a sage, even then humanity

sank in shame before him and a young boy Sagar Sahani was brutally

murdered before him. However, later on, time transforms even

mountains, and needless to say that, Approver Narayan Jameria is

only the human being of flesh and blood.

312] The prosecution story appears to be true and the evidence

of the witnesses examined appears to be reliable because there is no

animosity between family of complainant Satinder Sahani and accused.

The accused persons have their hearts of steel and have the audacity

to kill Sagar Sahani who was known to Jitu Modha (A 6) and Nitin

Modha (A 11) and even snatching gold chain and bracelet from the

dead body.

313] So far as the evidence of disappearance of evidence of

offence of murder and disposal of the dead body of Sagar is

concerned, I would like to observe here that even the very young age

of Sagar did not create any compassion with the accused. The hands

of Prasad Shetty (A 2) did not tremble while cutting the throat of

Sagar, thrice.

314] I appreciate the attitude of Approver Narayan Jameria, who

exhibited his repentance. I believe, repentance is indeed a virtue, when


you stand before the Almighty, swear by him and try to ease your

heavy heart, which was not the way God created humans. Our

mythology talks of washing sins and believes it is possible. In my

opinion, repentance is the best form to cleanse your soul which

Approver Narayan Jameria has done.

315] With this discussion, I hold that in this case the prosecution

has proved the offence u/s 120-B, of IPC against accused Nos.

2,4,5,6,10 and 11. The prosecution has also proved offence u/s 364-A

r/w 120-B of IPC against accused Nos. 2,4,5,6,10 and 11. The

prosecution has also proved offence u/s 344 r/w 109 of IPC against

accused Nos. 2,4,5,6,10 and 11.

316] Prosecution has proved offence u/s 302, 201 r/w 120-B,

against accused nos. 2,10 and 11.

317] Prosecution has proved offence u/s 392 and 404 of IPC

against accused No. 11.

318] The prosecution has also proved offence u/s 3(2) and 3(4)

of MCOC Act against accused Nos. 2,4,5,6,10 and 11.

319] . I accordingly hold accused Nos. 2,4,5,6,10 and 11 guilty

for the aforesaid offences and answer the points for determination,

accordingly.

320] Approver Narayan Jameria, however, is entitled to be

discharged because he was tendered pardon.


321] At this stage, I stop my dictation here, to hear the accused

on the point of sentence.

(S.P. Tavade.) Pune. Special Judge under MCOCA, Date : 4/12/2012. Pune.

322] The Accused along with their advocates are present before

the Court. I explained them that offence u/s 120-B; 364-A r/w 120-B

and 344 r/w 109 of IPC are proved against accused Nos. 2,4,5,6,10

and 11. I also explained them that offence u/s 302, 201 r/w 120-B

are proved against accused nos. 2,10 and 11 and offences u/s 392

and 404 of IPC against accused No. 11. It is also explained them that

offence u/s 3(2) and 3(4) of MCOC Act against accused Nos.

2,4,5,6,10 and 11.

323] After passing the order of holding the accused persons

guilty, I adjourned the trial for two days, to hear the accused persons

and the learned Special Public Prosecutor for the State, on the point of

sentence.

324] All accused submitted that they are innocent and they were

noway concerned with the crime. Accused No. 4 submits that, his wife,

child and aged mother is dependent on him and he is only bread earner

of his family. Accused no. 5 submits that, wife, 3 children and aged

parents are dependent on him. Accused No. 6 Jitu Modha submits that,

his wife, four children and aged mother is dependent on him. Accused

No. 11 also submits that, his wife, children and aged mother are

dependent on him. Accused Nos. 6 and 11 submitted that there is no

earning member in their family. They have closed their business at


Pune as well as at Porbandar. All accused submitted their written say,

wherein they gave their brief history and claimed innocence.

325] Heard learned advocates for both the parties at length.

Learned advocate Shri. Koshe submits that, on the basis of ratio laid

down in the case of Santoshkumar Satishbhushan Bariyar Vs.

State of Maharashtra, reported in AIR 2010 S.C. ( Supp.) 612,

present case cannot fall in the category of 'rarest of rare' case. In the

said authority, Hon'ble Apex Court has taken stock of all cases wherein

capital punishment was awarded as well as the cases wherein death

sentence was commuted to life imprisonment. He submits that, the

victim was aged about 22 years. The alleged act of accused cannot be

called as brutal or gruesome. There was only one injury on the person

of deceased. So, it cannot be said that his death was barbaric.

326] On the other hand, learned APP Shri. Shah submits that, the

offence was committed with the help of organized crime syndicate. In

spite of receipt of ransom, the victim was killed. The manner and

method of kidnapping, murder and disposal of dead body was most

abhorrent foul and despicable. Hence, the case falls in the category of

'rarest of rare'.

327] Whether case falls within the category of 'rarest of rare'

case or not has to be examined with reference to the facts and

circumstances of each case and on finding the case to be 'rarest of

rare', the Court is justified in awarding death penalty which is on the

Statute Book. As back in the year 1974, the Hon'ble Apex Court in the

matter of Ediga Anamma Vs. State of A.P., reported in AIR 1974

S.C. 799, has observed thus:

“deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime”.


It is further observed that :

“Horrendous features of the crime and the hapless and helpless

state of the victim steel the heart of law for the sterner scheme”.

328] What is the 'rarest of rare' case is a concept difficult to

define and no straight jacket formula can be applied for enumeration of

'rarest of rare' case. However, the Hon'ble Apex Court in the matter of

Bachan Singh Vs. State of Punjab, reported in AIR 1980 S.C.

898, has laid down the guidelines on this aspect which can be

summarized thus :

(a) The extreme penalty of death may be inflicted in gravest cases of extreme culpability;

(b) While imposing death sentence the circumstances of the offender are also require to be taken in to consideration along with the circumstances of the crime;

(c) Death sentence be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime; and

(d) Extreme penalty can be imposed after striking the balance between aggravating and mitigating circumstances found in the case.

Aggravating circumstances include :

(a) If the murder has been committed after previous planning and involves extreme brutality; or

(b) If the murder involves exceptional depravity.


Mitigating circumstances include :

(a) That the offence was committed under the influence of extreme mental or emotional disturbance,

(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death,

(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society,

(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c)and (d) above,

(e) That in the facts and circumstances of the case the accused believed that he was more justified in committing the offence,

(f) That the accused acted under the duress or domination of another person, and

(g) 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.

329] These guidelines were followed in Macchi Singh Vs. State

of Punjab, reported in 1983 S.C. 957 by holding that death

sentence could be imposed only in 'rarest of rare' case when the

collective conscience of the community is so shocked that it would

expect the holders of judicial power to inflict the death penalty

irrespective of their personal opinion as regards the desirability or

otherwise of retaining death penalty as a sentencing option. The

following are the circumstances given by the Hon'ble Apex Court in

the matter of Macchi Singh in which the case can be treated as

'rarest of rare' for imposing capital punishment by entertaining such


sentiment of the community :

(1) When the murder is committed in extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of Scheduled Caste or minority community etc., is committed not for personal reason but in circumstances which arouse social wrath; or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance, when multiple murders, say of all or almost all the members of a family or large number of persons of a particular caste, community, or locality, are committed.

(5) When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the326] As against this, learned Special Public Prosecutor Shri. V.M. community.

330] Hon'ble Apex Court has, however, cautioned that full

weightage must be accorded to the mitigating circumstances in a case

and a just balance had to be struck between aggravating and

mitigating circumstances.


331] Ratio of the rulings in the matters of Devender personal

and living expenses Singh Vs. State of N.T.C of Delhi, reported

in AIR 2002 S.C. 1661 and Atbir Vs. Govt of NCT of Delhi,

reported in AIR 2010 S.C. 3477=JT 2010 (8) S.C. 372, shows that

death sentence may be warranted when the murder is committed in an

extreme brutal manner or for a motive which evinces total depravity

and meanness. The Hon'ble Apex Court has also held that death

sentence can also be justified when the crime is enormous in

proportion or when the victim of murder is an innocent child or a

helpless woman or old or infirm person or a person whom the

murderer is in a dominating position, or a public figure generally loved

and respected by the community. Thus, the Court is required to follow

the rule of proportionality considering the circumstances of the case

in providing punishment according to the culpability of each kind of

criminal conduct keeping in mind the effect of inadequate punishment

on the society. In the matter of Aqueel Ahmed Vs. State of U.P,

reported in AIR 2009 S.C. 1272. Hon'ble High Court has ruled out

that even in the case of single victim death sentence can be awarded

taking in to consideration the circumstances of the case.

332] At this juncture, it is apt to quote observations of the Hon'ble

Apex Court in Shivaji @ Dadya Alhat Vs. State of Maharashtra ,

reported in AIR 2009 S.C. 56, wherein it is held thus in para 25,

26,30 and 31 :

25: The law regulates social interests, arbitrates conflicting claims

and demands. Security of persons and property of the people is an

essential function of the State. It could be achieved through

instrumentality of criminal law. Undoubtedly, there is a cross-cultural

conflict where living law must find answer to the new challenges and

the courts are required to mould the sentencing system to meet the

challenges. The contagion of lawlessness would undermine social order


and lay it in ruins. Protection of society and stamping out criminal

proclivity must be the object of law which must be achieved by

imposing appropriate sentence. Therefore, law as a corner-stone of the

edifice of 'order' should meet the challenges confronting the society.

Fridman in his 'Law in changing society' stated that “State of criminal

law continues to be – as it should be – a decisive reflection of social

consciousness of society”. Therefore, in operating the sentencing

system, law should adopt the corrective machinery or the deterrence

based on factual matrix. By deft modulation sentencing process be

stern where it should be, and tampered with mercy where it warrants

to be. The facts and given circumstances in each case, the nature of

the crime, the manner in which it was planned and committed, the

motive for commission of the crime, the conduct of the accused, the

nature of weapons used and all other attending circumstances are

relevant facts which would enter in to the area of consideration. For

instance, a murder committed due to deep-seated mutual and personal

rivalry may not call for penalty of death. But, an organised crime or

mass murders of innocent people would cal for imposition of death

sentence as deterrence. In Mahesh Vs. State of M.P. Reported in

(1987) 2 SCR 710, this Court while refusing to reduce the death

sentence observed, thus :

“It will be a mockery of justice to permit the accused to escape

the extreme penalty of law when faced with such evidence and such

cruel acts. To give the lesser punishment for the accused would be to

render the justicing system of the country suspect. The common man

will lose faith in courts. In such cases, he understands and appreciates

the language of deterrence more than the reformative jargon”.

26. Therefore, undue sympathy to impose inadequate sentence

would do more harm to the justice system to undermine the public


confidence in the efficacy of law and society would not long endure

under such serious threats. It is, therefore, the duty of every Court to

award proper sentence having regard to the nature of the offence and

the manner in which it was executed or committed etc. This position

was illuminatingly stated by this Court in Sevaka Perumal Vs. State of

Tamil Nadu (AIR 1991S.C. 1463).

30. In Jatshubha Bharatsinh Gohil Vs. State of Gujarat

(1994 (4) SCC 353), it has been held by this Court that in

the matter of death sentence, the courts are required to

answer new challenges and mould the sentencing system

to meet these challenges. The object should be to protect

the society and to deter the criminal in achieving the

avowed object of law by imposing appropriate sentence. It is

expected that the courts would operate the sentencing

system so as to impose such sentence which reflects the

conscience of the society and the sentencing process has

to be stern where it should be. Even though the principles

were indicated in the background of death sentence and life

sentence, the logic applies to all cases where appropriate

sentence is the issue.

31. Imposition of sentence without considering its effect on the

social order in many cases may be in reality a futile

exercise. The social impact of the crime, e.g where it relates

to offences against women, dacoity, kidnapping,

misappropriation of public money, treason and other

offences involving moral turpitude or moral delinquency

which have great impact on social order, and public interest,

cannot be lost sight of and per se require exemplary

treatment. Any liberal attitude by imposing meager

sentences or taking too sympathetic view merely on account


of lapse of time in respect of such offences will be result-

wise counter- productive in the long run and against social

interest which needs to be cared for and strengthened by

string of deterrence inbuilt in the sentencing system.”

333] It is, thus, clear that duty is cast upon the Court to respect

to the society's cry for justice against the criminals by imposing

punishment befitting the crime so that, the courts reflect public

abhorrence of the crime.

334] Now, let us examine whether the case in hand falls under

the category of 'rarest of rare' case and if the answer is in affirmative,

what are the special reasons for awarding death sentence.

335] On going through the evidence on record and submissions

of both the sides, the aggravating circumstances are as under :

1. The abduction and murder of Sagar has been committed

with pre-plan and even after receiving amount of ransom,

Sagar was killed,

2. Accused are members of organized crime syndicate,

3. Deceased Sagar was young boy of 22 years. He did not

provoke the crime and he was helpless victim,

4. Anti-social nature of crime and magnitude of crime on

society,

5. There was no spark of any kindness and compassion in the

mind of accused,

6. Entire incident certainly shocked the collective conscience of

the community.

As against this, the mitigating circumstance brought on record are as

under :

1. Accused nos. 2,4, 6,10 and 11 are young persons,


2. Accused had no criminal background,

3. Accused are illiterate. Accused Nos. 2,4,10 were

unemployed, accused Nos. 5,6,11 were businessmen,

4. There is probability that accused would not commit criminal

acts of violence as would constitute a continuing threat to

society,

5. The accused acted under the domination of another person

who was operating the plan from outside India.

336] On balancing the aggravating and mitigating circumstance,

it appears that, the accused are young persons. They are from middle

and lower strata of society. They abducted young boy Sagar, from rich

family to earn money. No doubt, accused No.11 took help of gangster

from abroad to extract money. But the incident of death of deceased

cannot be called as barbaric or brutal.

337] Learned Special Public Prosecutor Shri. V.M. Shah, for the

State, submitted before me that, these accused persons caused the

death of helpless Sagar Sahani, mercilessly. Therefore, in the case at

hand, he further added that the murder of Sagar is gruesome and it

did cause the death of a young boy to satisfy the greed of money. The

learned Special Public Prosecutor Shri. V.M. Shah, for the State,

therefore, submitted before me that there exists special reasons to call

the present trial as 'rarest of rare' case. He, therefore, strenuously

urged for capital sentence.

338] Whether the case is of 'rarest of rare' i.e., an exceptional

case has to be decided now. How this category has to be searched

has been clearly spelt out in Bachan Singh Vs. State of Punjab,

reported in AIR 1980, Supreme Court, 902 and Machi Singh Vs.

State of Punjab, reported in AIR 1983 Supreme Court, 957. As


per the observations in these decisions of the Hon'ble Apex Court it is

mandatory for the courts to prepare a comparative table of aggravating

and extenuating factors of crime as well as the criminals and then

pass a sentence looking into carefully as to which factor outweighies

the other. If aggravating factors far outweigh the extenuating factors

then only is a sentence of death called for.

339] Every murder is heinous and brutal because it ends in death.

Sagar Sahani was a young boy of 22 years, killed at the hands of

accused by cutting his throat for greed of ransom. He was confined for

12 days at various places in Gujrat. His dead body was thrown in

forest. The dead body was having only one injury. Therefore, it can be

inferred that murder was not committed in extremely brutal, grotesque,

diabolical, revolting or dastardly manner so as to arouse intense and

extreme indignation of the community. Similarly the motive of the

crime was to earn money. These circumstances alone in my view are

not sufficient to brand the present case as 'rarest of rare' case or an

exceptional case to impose death sentence.

340] Present case is of single murder, where boy was abducted

for ransom and was killed by cutting his neck. The prosecution did not

bring on record any evidence to show that either of these accused

persons have any criminal tendency. There are no convictions recorded

against these accused persons by the competent courts.

341] To repeat again, there is no history that these accused

persons are hardened criminals and are not convicted in the past. It

is, therefore, rightly submitted before me that when Valya may

become Valmiki, why no chance of rehabilitation and improvement be

given to the accused persons by awarding minimum punishment for

the charge of murder. Therefore, I pass the following order.


-O R D E R-

1] The accused No. 2 Prasad Shetty, No. 4 Chhotu Choudhari, No. 5

Bhikubai Thanki, No. 6 Jitendra Modha, No. 10 Chhotu Ghaisaiwala and

accused No. 11 Nitin Modha are hereby convicted u/s 235(2) of

Cr.P.C., of the offence punishable under section 120-B of IPC and

sentenced to suffer imprisonment for life and to pay a fine of Rs.

2,000/- each. In default of payment of fine, they are directed to

undergo further R.I for six months.

2] The accused No. 2 Prasad Shetty, No. 4 Chhotu Choudhari, No.

5, Bhikubai Thanki, No. 6 Jitendra Modha, No. 10 Chhotu Ghaisaiwala

and accused No. 11 Nitin Modha are also convicted u/s 235(2) of

Cr.P.C., of the offence punishable under section 364-A r/w 120-B of

IPC and sentenced to suffer imprisonment for life and to pay a fine

of Rs. 2,000/- each. In default of payment of fine, they are directed to



5 Bhikubai Thanki, No. 6 Jitendra Modha, No. 10 Chhotu Ghaisaiwala


Cr.P.C., of the offence punishable under section 344 r/w 109 of IPC

and sentenced to suffer R.I. for two years and to pay a fine of Rs.


undergo further R.I for three months.

4] The accused No. 2 Prasad Shetty, No. 10 Chhotu Ghaisaiwala


Cr.P.C., of the offence punishable under section 302 of IPC and

sentenced to suffer R.I. for life and to pay a fine of Rs. 2,000/- each.


In default of payment of fine, they are directed to undergo further R.I

for six months.

5] The accused No. 2 Prasad Shetty, No. 10 Chhotu Ghaisaiwala


Cr.P.C., of the offence punishable under section 201 r/w 120-B of IPC

and sentenced to suffer R.I. for 5 years and to pay a fine of Rs.



6] The accused No. 11 Nitin Modha is also convicted u/s 235(2)

of Cr.P.C., of the offence punishable under section 392 of IPC and

sentenced to suffer R.I. for 3 years and to pay a fine of Rs.2,000/-.


for six months.

7] The accused No. 11 Nitin Modha is also convicted u/s 235(2)

of Cr.P.C., of the offence punishable under section 404 of IPC and

sentenced to suffer R.I. for 3 years and to pay a fine of Rs. 2,000/-.


for six months.



and accused No. 11 Nitin Modha are convicted u/s 235(2) of Cr.P.C.,

of the offence punishable under section 3(2) of Maharashtra Control of

Organized Crime Act, 1999, and sentenced to suffer R.I. for 7 years

and to pay a fine of Rs. 5 lacs, each. In default of payment of fine, they

are directed to undergo further R.I for two years.




and accused No. 11 Nitin Modha are convicted u/s 235(2) of Cr.P.C.,

of the offence punishable under section 3(4) of Maharashtra Control of

Organized Crime Act, 1999, and sentenced to suffer R.I. for 7 years

and to pay a fine of Rs. 5 lacs, each. In default of payment of fine, they

are directed to undergo further R.I for two years.

10] All the sentences shall run concurrently.

11] The accused Nos. 2 to 11 are in jail since their arrest till the date.

Accused No. 2 is in jail since 8/9/2005, Accused No. 4 is in jail since

8/9/2005, Accused No. 5 is in jail since 9/9/2005, Accused No. 6 is in

jail since 10/9/2006, Accused No. 10 is in jail since 2/2/2009 and

Accused No. 11 is in jail since 21/7/2006 till the date. Subject to the

provisions of section 433-A of Cr.P.C., they shall be entitled to set off,

as provided u/s 428 of Cr.P.C.

12] The Accused No. 1 is hereby acquitted under Section 235(1) of

Cr. P. C. of the offence punishable under section 3(2) and 3(4) of

Maharashtra Control of Organized Crime Act, 1999.

13] The Accused No. 3 Jagmalsing Choudhary, No. 7 Samantbhai

Gadhvi, No. 8 Ajay Gadhvi and No. 9 Dinesh Tukddia are hereby

acquitted under Section 235(1) of Cr. P. C. of the offences punishable

under sections 344 r/w 109 of IPC and u/s 3(2) and 3(4) of


14] The Accused No. 9 is also hereby acquitted under Section 235(1)

of Cr. P. C. of the offence punishable under section 3(1)(i) of



15] The bail bond of accused No.1 stands cancelled and he is set at

liberty.

16] The accused No. 4 Chhotu Choudhari, Nol. 5 -Bhikubai Thanki and

accused No. 6 Jitendra Modha are hereby acquitted under Section

235(1) of Cr. P. C. of the offence punishable u/s 302, 201 r/w 120-B of

IPC.

17] Approver Narayan Jameria, however, is discharged because he

was tendered pardon.

18] The muddemal property be preserved for the trial of absconding

accused.

19] Certified copy of this judgment be given free-of-costs to accused,

forthwith.

(S.P. Tavade.) Pune. Special Judge under MCOCA, Date : 7/12/2012. Pune.


I affirm that the contents of this P.D.F. file Judgment are same word for word as per original judgment.

Name of steno : Sou. Madhuri Godse, P.A.

Name of court : Shri. S.P. Tavade, Spl. Judge, under MCOC Act, Pune. Date : 7/12/2012.Judgment signed by Presiding Officer on : 7/12/2012.Judgment uploaded on : 7/12/2012.


326] As against this, learned Special Public Prosecutor Shri. V.M.


Sagar Sahani Murder Case Pune MCOCA Court Judgement

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