Ejaz Ladkawala Gang Extortion Case MCOCA Special Court Judgement
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Transcript of Ejaz Ladkawala Gang Extortion Case MCOCA Special Court Judgement
Judgment 1 MCOC Pl. Case No.2/12.
IN THE COURT OF SPECIAL JUDGE DESIGNATED UNDER MCOC ACTAT GR. MUMBAI.
MCOC SPECIAL CASE NO. 2 OF 2012
The State at the instance of DCB CIDMumbai C.R.No.86/11(J.J.Marg PoliceStn.C.R.No.138/11) ... Complainant
V/s.1. Riyaz Ahmad Hussain Shaikh @ BhaijiAge : 47 years.R/o : A1 Tower Hill Park, Flat No.1204, Agrawal Estate, Jogeshwari,(W)Mumbai.
2. Nilesh William Jatanna @ AnnuAge : 28 years.R/o: Dahisar Cheknaka, Raikar Wadi,Room No.66. Dist. Thane.
3. Prashant Prasad Rao @ SunnyAge: 37 years.R/o: Mira Gaon, Munish Compound,Behind Dr. Khan's Clinic, Opp.AmishPark, Kashmira, DistThane.
4. Mohammad Jafar Esak Madhwala @ ChachaAge: 61 years.R/o: Rizwan Apartment, A20, Ground Floor,Room no.1, Amrut Nagar, Jogeshwari (W),Mumbai102.
5. Zakariya Bashir Khan @ Jiko @ SalimAge: 44 years.R/o: Zopada no.5, Mahim Darga Mohalla,Backside of Akram Terrace building,Mahim, Mumbai16. ....Accused
...2/
Judgment 2 MCOC Pl. Case No.2/12.
Mr. D.M. Shah Learned Special P.P. for the State/Complainant.Mr. Sejpal Learned Advocate for accused no.1.Mr. Manerkar Learned Advocate for accused no.2 and 4.Mr. Taraq Sayyed Learned Advocate for accused no.3Mr. Ware Learned Advocate for accused no.5.
Offences: U/sec. 307, 120(B) r/w 387 of IPC, 506 PartII r/w sec. 387, 34 of IPC, 3 r/w 25 of the Arms Act, 37/135 of the B.P. Act, 3(1)(ii), 3(2),3(4) of MCOC Act, 1999.
CORAM: HIS HONOUR THE SPECIAL JUDGE SHRI P.R. Deshmukh.
JUDGMENT (DELIVERED ON 17 th November, 2014)
1. Unfolded case of prosecution is as follows.
2. Nirbhan Construction Company dealing in construction business is
situated at Kamruddin Street, Nagpada Mumbai. Akram Nirbhan is
proprietor of the Company. One Sohel Khan was working as real Estate
Agent at Nirbhan Construction. On 1/10/2011, at about 12.30 p.m., Sohel
Khan reached to Nirbhan Construction Company and was at reception
office with father of Akram Nirbhan. When they were discussing, Sohel
noticed his client Sagir Ahmed passing from Road. He was stopped by
Sohel and were discussing on account of cheque due from him towards
Nirbhan Construction. When their discussion was going on, Sohel noticed
two persons coming towards him on red coloured motorbike from Moulana
...3/
Judgment 3 MCOC Pl. Case No.2/12.
Shoukat Ali Road. Both were staring at him. All of sudden person who was
pillion rider took out fire arm pistol and by pointing out towards him fired
three rounds of bullet. He avoided two rounds but one bullet hit at his leg
thereby causing bleeding injury. He immediately raised voice by saying
“Pakado Pakado Goli Mara”. By hearing such shout of Sohel after firing,
they both by pointing out fire arms towards public ran away from
Dimtimkar Road.
3. Employee of Nirbhan Construction namely Nabeel took injured
Sohel to J.J. Hospital where he was treated and operated. Ultimately on
the basis of statement of injured Sohel, FIR as per C.R.No.138/2011 for
offences under section 307, r/w 34 of IPC and 3/25, 27 of Arms Act came
to be registered at J.J. Marg Police Station against two unknown persons.
4. As per story of prosecution, second incident took place on
14/10/2011 when investigation of aforesaid C.R.No.138/2011 was going
on. Crime Branch UnitIII received information that accused were in the
way to reach in Nagpada area with some fire arms. Senior Police Inspector
Prashant Marde deputed a team of UnitIII for arranging trap as per secret
information. ASI Chalke, API Tawade and PI Dhanawade alongwith other
police staff arranged trap near BMC Beat Chowki at Nagpada area. Police
team noticed three persons passing from BMC Beat Chowki. They were
intercepted by police team. Personal search of those three persons was
taken in presence of panch witnesses. Police found four fire arms namely
pistols and nine live cartridges in possession of those three persons. In
...4/
Judgment 4 MCOC Pl. Case No.2/12.
interrogation, they told their names as accused no.1,2 and 3. After seizure
of weapons and articles on spot, accused and articles were taken to
Nagpada Police Station and LAC No.2220/2011 for offence under section
3/25 of Arms Act was registered and as per C.R.No.35/2011 by Criminal
Detection Branch further investigation was handed over to Crime Branch
UnitIII. Meantime C.R.No.138/2011 of J.J. Marg Police Station was also
handed over to Crime Branch UnitIII as per order of A.C.P. (Crime) dated
19/10/2011. During interrogation with arrested accused nos. 1 to 3 other
accused nos. 4 and 5 came to be arrested on 10/11/2011 and 13/11/2011
respectively having seen their involvement in commission of crime.
5. During interrogation with accused Prashant Rao, he gave
memorandum statement about discovery of Nokia Mobile from his house
Miragaon. As per his memorandum statement in presence of panch
witnesses, Mobile hand set of Nokia company came to be seized under
panchanama. Similarly as per memorandum and seizure panchanama,
two mobile hand sets of Micromax and L.G. companies came to be seized
at the instance of accused Zakariya Bashir Khan @ Jiko. Blood stained
shirt and jeans pant came to be seized from injured Sohel as per seizure
panchanama. Blood stained soil, two empty cartridges, one live cartridge
came to be seized from spot of firing incident in presence of pancha
witnesses. Photographs(5) of spot of firing incident were taken with the
help of photographer Ahmed Kaji on 1/10/2011. During the course of
investigation medical examination report of injured Sohel who had
received bullet injury in the incident came to be collected.
...5/
Judgment 5 MCOC Pl. Case No.2/12.
6. During further course of investigation and interrogation with
proprietor of Nirbhan Construction namely Akram, it was revealed to
police that on 9/9/2011, there was threat of extortion to him from Ejaj
Lakadawala from Abroad on his mobile phone demanding extortion money
Rs. Three Crores. It is allegation against accused nos. 1 to 3 that on the
say of said Ejaj Lakadawala who is leader of Organized Crime Syndicate
initially they inspected site of Nirbhan Construction and as Mohd. Akram
did not fulfill demand of ransom amount, ultimately accused Nilesh and
Prashant Rao on 29/9/2011 had been to Nirbhan Construction site for
firing and creating terror in the mind of Mohd. Akram, but did not succeed
on account of lot of persons present at the site on that day. However,
ultimately on 1/10/2011, accused Nilesh and Prashant Rao succeeded in
the firing incident in which Sohel received bullet injury at the hands of
accused Prashant Rao who was pillion rider with Nilesh on motorbike
which was driven by accused Nilesh.
7. As per further story of prosecution on next day of firing incident i.e.
on 2/10/2011, Mohd. Akram Nirbhan received four SMS of threatening
call on his mobile from Ejaj Lakadawala threatening him of death if his
demand is not fulfilled. On third day of incident, Ejaj Lakadawala by
giving phone call to Mohd. Akram Nirbhan reduced his demand from Rs.
three Crores to Rs. one and half Crores. However, by saying that his
business is newly started, he is not in position to pay said huge amount,
refused to pay the ransom to Ejaj Lakadawala.
...6/
Judgment 6 MCOC Pl. Case No.2/12.
8. On the basis of aforesaid information supplied by Mohd. Akram
Nirbhan on whose site incident of firing dated 1/10/2011 was taken place
in which his Estate agent Sohel was injured, further investigation
connecting role of Ejaj Lakadawala in the firing incident on the basis of
SIM cards used by arrested accused nos. 1 to 3 prior, during and after the
incident collected call details, CDR and print out from Airtel, Aircel,
Vodafone, Idea, Reliance, Uninor, and Loop Companies and subscribers in
whose name seized mobiles were registered in the aforesaid companies.
9. During further investigation with the help of Executive Magistrate
(Tahasildar), Test Identification Parade(T.I. Parade) about identification of
accused no. 1 to 3 was conducted in which they were identified by injured
witness namely Sohel Khan who had injured in firing incident and eye
witness Sohel. And also four witnesses in whose presence fire arms and
articles were seized on 14/10/2011. During interrogation with accused
no.2 and 3, they showed willingness to give confession before DCP as per
section 18 of MCOC Act. Their confessional statements came to be
recorded and statement under uection 164 of Cr.P.C. of witness Mohd.
Akram Nirbhan and Jignesh Pandya also came to be recorded by producing
them before Metropolitan Magistrate.
10. After collecting material in respect of both incident and on the basis
of information given by Mohd. Akram Nirbhan and documentary evidence
collected from Nodal officer as stated above, police came to be conclusion
that accused nos. 1 to 5 are active members of Organized Crime Syndicate
...7/
Judgment 7 MCOC Pl. Case No.2/12.
headed by Ejaj Lakadawala and as per his say and direction, they were
continuing unlawful activities like threatening and demanding ransom
amount from builders. And on the say of their leader of Syndicate Ejaj
Lakadawala accused nos. 2 and 3 committed incident of firing dated
1/10/2011. Accused nos.1 to 3 were found with firm arms and live
cartridges as per trap dated 14/10/2011. And all such activities committed
by accused nos. 1 to 5 are under head of Ejaj Lakadawala who had
threaten Mohd. Akram Nirbhan by putting him in fear of death to extort
money from him. Police while completing next part of investigation
collected copies of chargesheet in which Ejaj Lakadawala being leader of
Crime Syndicate was involved in similar nature of offences prior to present
incident and he alongwith others are facing two criminal cases filed
against him and others at A.C.M.M. Court No. 37 Killa Court, Mumbai and
before designated MCOC Court for offences under section 387, r/w 34 @
offences, under Arms and MCOC Act.
11. In due course all investigation papers were submitted to Joint
Commissioner of Police initially for grant of approval for invoking
provision of MCOC Act as per section 23(1)(a) MCOC Act in C.R.No.
86/2011 and having given approval and completing investigation under
MCOC Act sanction under section 23(2) of the Act to prosecute arrested
accused nos.1 to 5 was obtained from Commissioner of Police Mumbai.
Ultimately on the basis of material collected in investigation viz.
confessional statement of accused nos. 2 and 3, seized fire arms and
articles from accused nos.1 to 3, call details obtained from Nodal officers,
...8/
Judgment 8 MCOC Pl. Case No.2/12.
statement of two witnesses recorded under uection 164 of Cr.P.C. and after
getting sanction from Commissioner of Police, accused nos. 1 to 5
alongwith absconding accused no.1 to 3 came to be chargesheeted before
this Court for trial.
12. In due course of trial, my Learned Predecessor framed charge Ex.31
against accused nos. 1 to 5 on 30/11/2013 for above mentioned offences
under IPC, Arms Act, Bombay Police Act and MCOC Act. As per plea
recorded at Ex.32 to 36, accused pleaded not guilty and claimed to be
tried. Defence of accused is that of total denial and false implication.
13. To prove allegations levelled against accused in respect of two
incident dated 1/10/2011 and 14/10/2011 together with conspiracy for
commission of offence, prosecution examined in all 36 witnesses. To have
proper discussion of evidence and marshaling of evidence, it is divided into
VI different groups as per details in reasoning.
14. Incriminating material came on record in the evidence of 36
prosecution witnesses explained to accused while recording their
statements under section 313 of Cr.P.C. vide Ex.32 to 36. They replied to
all questions put to them as per their defence of false implication. None of
the accused examined himself nor lead any defence evidence.
15. As such on above stated facts, following points arise for my
determination and I have given my findings to each of them for below
...9/
Judgment 9 MCOC Pl. Case No.2/12.
mentioned reasons.
POINTS FINDINGS
1. Does prosecution prove that accused nos. 1 to 5 alongwith wanted accused nos. 1 to 3 before 1st of October, 2011 at Brihan Mumbai agreed to do illegal acts to wit to commit extortion of Rupees Three Crores by extending threats to kill Mohammad Akram Nirbhan a builder by profession and in pursuance of the aforesaid agreement on or about 1/10/2011 at about 14.45 hrs. at the construction site office of Nirbhan Construction Company, situated at Shaikh Burhan Qamruddin Street (Teli Mohhala), Nagpada, Mumbai 400 008, and accused no.2 drove red coloured motorcycle bearing registration No.MH04EN4263 and accused no.3 opened fire with a pistol towards Sohail @ Soney Abdul Majid Khan, working as a commission agent of Mohammad Akram Nirbhan and thereby committed an offence punishable under section 120(B) r/w 387 of Indian Penal Code.
Proved against A1, A2 & A3 u/sec. 120(B)
r/w 387 of IPC.
2. Does the prosecution further prove that accused nos. 1 to 5 and wanted accused nos. 1 to 3 in furtherance of their common intention and pursuant to the criminal conspiracy committed criminal intimidation by threatening to kill Mohammad Akram Nirbha, a builder in order to commit extortion of Rupees Three Crores and thereby committed the offence punishable under section 506 PartII r/w sec. 387, 34 of Indian Penal Code.
Proved against A3
u/sec. 506(II)r/w 387,34 of
IPC.
...10/
Judgment 10 MCOC Pl. Case No.2/12.
3. Does the prosecution further prove that accused nos. 2 and 3 in pursuance to the aforesaid criminal conspiracy and in furtherance of their common intention with all accused nos. 1 to 5 and wanted accused nos. 1 to 3 on 1st of October, 2011 at about 14.45 hrs. and accused no.3 opened fire towards Sohail @ Sony Abdul Majid Khan, commission agent of Mohammad Akram Nirbhan, with such an intention and knowledge and under such circumstances that if by that act you had caused and death of aforesaid Sohail @ Sony Abdul Majid Khan, you would have been guilty of murder and in that you accused caused hurt to the aforesaid Sohail @ Sony Abdul Majid Khan and thereby committed an offence punishable under section 307 r/w 120(B) or in the alternative r/w.34 of Indian Penal Code.
Proved against A2 & A3
u/sec. 307 r/w 120(B) of IPC.
4. Does the prosecution prove that accused no.3 on the same date, time and place in pursuance of the aforesaid criminal conspiracy and in furtherance of his common intention with rest of the accused and the wanted accused did possess a fire arm and ammunition to wit a countrymade pistol and cartridges without licence as required under the Arms Act and the rules made there under and thereby committed an offence punishable under section 3 r/w 25 of the Arms Act, r/w 120(B) of Indian Penal Code. Proved
...11/
Judgment 11 MCOC Pl. Case No.2/12.
5. Does the prosecution prove that on the same time and place you accused no.2 and 3 did posses the aforesaid countrymade pistol and ammunitions and thereby contravened Order No.CP/XI(6)/JVP/L, W/702(9)2011 dated 19/9/2011 issued by the Dy. Commissioner of Police (Operations) Mumbai in exercise office power u/s.37 of the Bombay Police Act and thereby committed an offence punishable under section 135 of the Bombay Police Act. Proved
6. Does the prosecution prove that accused nos. 1 to 5 alongwith wanted accused nos. 1 to 3 sometime before 1st October, 2011 at Greater Mumbai, being the member of an organized crime syndicate headed by wanted accused no.1 Ejaj Lakadawala @ Ajju conspired to continue unlawful activities and to commit organized crime to wit to threaten Mohammad Akram Nirbhan a builder by profession that he would be killed if a demand of extortion of Rupees Three Crores is not fulfilled and made an attempt on the life of Sohail Khan working as his commission agent with an object of gaining pecuniary advantage or to get undue economic benefit and thereby committed an offence punishable under section 3(1)(ii) of the Maharashtra Control of Organised Crime Act, 1999.
7. Does the prosecution prove that accused nos. 1 to 5 alongwith wanted accused nos. 1 to 3 conspired and/or attempted to commit and/or abetted an organized crime to wit
Proved against A1, A2 & A3
...12/
Judgment 12 MCOC Pl. Case No.2/12.
extended threats to kill Mohammad Akram Nirban for extortion of Rupees Three Crores and thereby committed an offence punishable under section 3(2) of the Maharashtra Control of Organised Crime Act, 1999.
Proved against A1, A2 & A3
8. Does the prosecution proves that accused nos. 1 to 5 and wanted accused nos. 1 to 3 are members of an organized crime syndicate of which wanted accused no.1 Ejaj Lakadawala @ Ajju is the head and thereby committed an offence punishable under section 3(4) of the Maharashtra Control of Organised Crime Act,1999.
Proved against A1, A2 & A3
REASONS
Group I
Incident dated 1/10/2011
To prove incident dated 1/10/2011 prosecution examined in all
eight witnesses
PW1 (Name hidden) on seizure of clothes of injured Panchanama Ex.44
PW2 Sohel Abdul Majid Khan,injured and on FIR Ex.46.
PW14 Abdul Majid on spot cum seizure panchanama Ex.129.
PW21 Ahmed Ansari on seizure of motorbike and key Ex.162.
PW23 Dr. Vatsala Katke on medical certificate Ex.167 & 168.
PW24 Ahmad Kazi, Photographer, of spot of (Article 30).
PW27 Sohel Dalvi, eyewitness to the incident.
PW34 ASI, Kailas Bondre, on FIR Ex.46 and 46A.
...13/
Judgment 13 MCOC Pl. Case No.2/12.
Group II
Incident dated 14/10/2011.
To prove incident prosecution Examined 3 witnesses
PW11 Sameer Qureshi, Panch witness to panchanama Ex.112,
PW28 API Vinod Tawade member of team leading to trap of A1 to 3.
PW35 PI Dhanawade, incharge of leading team of trap.
Group – III
Test Identification Parade
To prove T.I. Parade Ex.153 prosecution examined 3 witnesses
PW2 Sohel Khan, Complainant.
PW27 Sohel Dalvi, eyewitness.
PW19 Bhagwan Arjun, Nayab Tahsildar.
Group IV
On confession of A 2 Ex.184 & 186, prosecution examined following three
witness
PW28 API Vinod Tawade
PW29 DCP, Keshav Patil.
PW32 PSI Anant Jadhav.
On confession of A3 Ex.137 and 138, prosecution examined following
three witnesses
PW16 DCP Kishor Jadhav,
PW25 PSI Subhana Naik. attached to Crime Branch UnitIII.
PW26 PI Nitin Potdar attached to A.T.S.
...14/
Judgment 14 MCOC Pl. Case No.2/12.
PW12 Jignesh Pandya is also on point of eyewitness of mobile
number of accused no.1 who has also given statement u/sec. 164of Cr.P.C.
Ex.125 before Magistrate. PW15 (Name hidden) on phone call and threat
byhead of CrimeSyndicate Ejaj Lakadawala. He has also given statement
u/sec.164 of Cr.P.C. before Magistrate.
Group – V
Evidence about Mobile & CDR print out
PW4 (Name hidden) on memorandum and seizure given by A3, Ex.52.
PW11 Sameer Qureshi, on seizure of mobile from A1& A3 on the date
of incident dated 14/10/2011.
Nodal Officers examined from PW5 to PW10 and 31of companies
namely India Cellular, Aircel Ltd, Loop, Vodafone, Reliance, Bharti
Airtel Ltd. and Uninor.
Group – VI
Evidence of investigating officers
PW20 DCP Ms.Sharada Raul, on sanctioned order of A3 Ex.158 of fire
arms.
PW30 Arup Patnaik, Commissioner of Police on sanctioned order Ex.193.
PW35 PI Dhanawade (I.O. Ist)
PW36 ACP Vatkar. (I.O. IInd)
...15/
Judgment 15 MCOC Pl. Case No.2/12.
GroupI
Incident dated 1/10/2011.
16. To prove the incident, there is oral evidence of PW2 injured Sohel
Khan and independent witness PW27 Sohel Dalvi. Injured Sohel Khan in
his testimony in chief examination gave evidence before the Court that he
was working as Estate agent with proprietor of Nirbhan Construction
(PW15 Akram Nirbhan) and on the day of incident had been to site of
Nirbhan Construction which is at Shaikh Burhan Kamruddin Street at
about 12.30 p.m.. Initially there was talk between him and father of
Akram Nirbhan in the passage of office. At about 2.30 p.m. by seeing their
client Sagir Ahmed he came out of the office and at the relevant time was
discussing about cheque due from said Sagir to Nirbhan Construction. He
within a 23 minutes of start of their discussion noticed two persons on red
colour motorbike coming towards him from Moulana Shoukat Ali Road.
Both were staring at him. Pillion rider whipped out a firearm (Pistol) and
fired three rounds towards him. He saved from two rounds. However, one
bullet hit as his left leg causing bleeding injury. He immediately raised
shout calling public but by that time both persons by pointing out weapon
towards public ran away from spot. While adducing evidence, he
identified accused Prashant Rao(A3) who was pillion rider on motorbike
and fired three bullet rounds towards him and accused Nilesh (A2) who
was ridding bike at the time of incident.
17. Aforesaid oral evidence adduced by injured Sohel Khan is mostly
challenged by A3. He admitted in cross examination that going out of the
...16/
Judgment 16 MCOC Pl. Case No.2/12.
office to meet Sagir was spontaneous action on his part. There was no
fixed time to go for work every day and he had no idea as to whom he was
going to meet on that day at the office of Nirbhan Construction. It is his
version that he noticed motorbike in the midst of his conversation with
Sagir and at that time he was near side across the road. According to him,
entire incident took place within ten seconds and first bullet was fired
upon him within a two second of his noticing accused. He also admitted
that assailants were at his right hand side when first bullet was fired and
bike passed in front of him when it was at the distance of ten feet. He
also admitted that assailant was pointing his weapon towards his chest
while firing three shots.
18. On the basis of aforesaid testimony of injured, it is say of Learned
Spl. P.P. that so far as testimony of injured Sohel Khan is concerned, it is
supported to the prosecution to prove his FIR Ex.46 which is within a
period of one hour as FIR is registered at 15.15 p.m. According to him,
whatsoever material brought on record by defence in his cross examination
is nothing but elaborated piece of fact of incident of firing i.e. coming out
of the office by noticing Sagir. As per his submission such admission in
cross examination is spontaneous and most natural one. According to
prosecution, defence also brought on record one more admission from his
testimony that in amidst of conversation with Sagir injured noticed
motorbike. Learned Advocate for A3 on the basis of certain elaborated
answer brought on record about actual incident in cross examination
submitted that ankle injury is absolutely not possible. To appreciate such
...17/
Judgment 17 MCOC Pl. Case No.2/12.
point of argument about testimony of injured, it is also necessary to see
what is evidence of eyewitness PW27.
19. According to PW27 Sohel Dalvi, on the day of incident, he was
standing in front of Doctor's clinic where he was working at that time and
time was about 2.30. p.m. He saw one motorbike of red colour having one
pillion rider. Nirbhan Construction office is just in front of his clinic.
Injured Sohel Khan resides at adjacent galli of said dispensary. Therefore
he knows him and also that he was working with Nirbhan Builder. As per
his version in chief examination, said motorbike just stopped by side where
he was standing and person who was pillion rider took out pistol and fired
it at Sohel Khan who received one bullet on his left leg feet. His testimony
is challenged by A3 by giving suggestion that entire incident took place
within 23 minutes and he has seen injury sustained to Sohel Khan which
was on toe of left leg. It is also his version that assailant was in front of
injured. To the specific suggestion as to whether assailant was trying to kill
the injured, his answer was that there was no intention of assailant to kill
him. In rest of cross examination, defence has brought on record situation
of office of Nirbhan Construction which according to him just exact
opposite to clinic and he has seen the incident which occurred just in front
of Nirbhan Construction site office which is at 15 feet distance from his
clinic.
20. As both A2 and A3 alleged author of incident dated 1/10/2011
were unknown to PW27. As per his statement U/sec. 161 of Cr.P.C.,
...18/
Judgment 18 MCOC Pl. Case No.2/12.
prosecution led evidence about description of both A2 and A3 for purpose
of identification and whatsoever description stated by him in statement
U/sec. 161 of Cr.P.C. is deposed by him in chief examination. So far as
other part of identification of A2 and A3 by him on the basis of T.I.
Parade held in Aurther Road Jail and before Court he identified both A2
and A3 as bike driver and pillion rider and specific role of A3 in firing
incident. As he has identified motorbike article28 used in incident by A2
and A3, he was cross examined by defence specifically A3 by bringing on
record omission i.e. not stating description of motorbike and it's number in
statement U/sec. 161 of Cr.P.C. There is also substantial cross examination
about necessity of keeping vehicle number involved in such type of
incident in the mind and memory and supplying it to police immediately
and omission on his part by not giving number of motorbike while
statement U/sec. 161 of Cr.P.C. and giving it to police in supplementary
statement dated 14/12/2011. When evidence of eyewitness was silent
about number of motorbike, defence in cross examination brought on
record material to the effect that when he gave statement to the police, he
was knowing that said motorbike was seen by him on the day of incident.
Not only that by giving specific suggestion, defence has brought on record
motorbike number MH04EN4263 used in incident and stated by him in
cross examination. This material evidence of injured Sohel Khan and
eyewitness Sohel Dalvi needs to be appreciated with other part of their
evidence which is in nature of seizure of clothes of injured, evidence about
injuries sustained to Sohel Khan and corresponding medical evidence
available on record.
...19/
Judgment 19 MCOC Pl. Case No.2/12.
21. It is say of injured Sohel Khan in cross examination that assailant
was on right hand side when first bullet was fired. When first bullet was
fired he immediately took action to save himself. Entire incident took
place within ten seconds. He did not go to duck walk position after first
shot. It is also his version that he was standing there on spot facing
towards office of Nirbhan Construction and motorbike did not stop, but
was moving in very slow speed when firing incident took place. It is also
his version in cross examination that when motorbike passed in front of
him, there was distance of about ten feet in between him and motorbike.
He admitted suggestion of defence that assailants by point outing weapon
towards his chest fired three shots and he received one bullet on his left
leg.
22. PW27 eyewitness Sohel Dalvi deposed that he was standing on the
spot facing towards Nirbhan Construction and firing took place two times
from motorbike which came on spot from his left side having two persons
on it and in said firing, injured Sohel Khan received bullet at his left leg
feet. Defence cross examined him on situation of spot i.e. site of Nirbhan
Construction and its office from his dispensary in front of which he was
standing. According to him, incident took place at distance of five feet
from site of office of Nirbhan Construction and his dispensary is at distance
of fifteen feet from site office of Nirbhan Construction. In his further
evidence in cross examination, it is his version that entire incident took
place within 23 minutes and he had seen injury sustained to injured.
When it was a simple version of injured PW2 and this eyewitness PW27
...20/
Judgment 20 MCOC Pl. Case No.2/12.
that bullet injury was received on left leg feet of PW2, in para no.13 of
cross examination of this PW27, defence has brought on record knowledge
of this witness about understanding of thigh, leg feet and toe. It is because
in his statement U/sec. 161 of Cr.P.C. before Police, he had stated that
injured has received bullet injury above feet of left leg by naming said part
of leg as toe. He was also cross examined by defence about his knowledge
in respect of pistol and revolver, to the same he sated that he has never
hold revolver or pistol and can not tell how pistol looks like. However, it is
his say that he can identify weapon like revolver or pistol as per his
knowledge from Movie and New paper.
23. Aforesaid evidence brought on record in testimony of injured and
eyewitness Sohel Dalvi is tried to be contradicted by defence on the basis
of medical evidence which has come on record from mouth of Dr.
Ms.Vatsala Katke(PW23). As per her testimony before Court on the basis
of medical certificate Ex.168 which is issued on the basis of MLC registered
Ex.167, injury sustained to PW2 was bullet injury on left ankle near
medial malleolus. During the course of argument, Learned Advocate for
A3 on the basis of above circumstances of spot brought on record in the
evidence of PW2 and 27 and specifically that injured and assailants were
facing each other assailants were on motorbike and injured was standing
and assailants were aiming towards chest of injured coming from his right
side, possibility of causing injury at left leg toe is not possible. It is also
because PW23 in cross examination admitted that injury mentioned in
certificate Ex.168 is not possible, if assailant is facing towards injured. It
...21/
Judgment 21 MCOC Pl. Case No.2/12.
is true that Doctor who is expert for giving possibility of sustaining injury
on particular part of injured from specific direction of the side of assailants
but that being mere opinion of expert same needs to be appreciated with
other material evidence and in the present case, evidence of injured and
eyewitness PW27 Sohel Dalvi. Oral evidence of injured and eyewitness in
respect of incident can not be brushed aside on the basis of possibility of
sustaining injury or merely on count of surmise and on basis of certain
admission given by the witnesses. It is also because other corroborative
evidence also needs to be appreciated having connection with the incident
in question. And therefore evidence available on record in respect of
seizure of clothes of injured, bullet and cartridges seized from spot of
incident and corresponding evidence of FSL and opinion about seized
articles given by Analyst expert needs to be appreciated.
24. As per evidence of panch of seizure panchanama of shirt and jeans
pant wore by injured (PW1) Ex.44 in his presence articleA & B are seized.
Jeans pant was of black colour and left part of leg of jeans pant having two
hole with blood stains. His testimony is not challenged by any of the
accused. Jeans pant article1B as per evidence of PW34 was produced
before him by PC – 28207 Nilesh Salunke and those clothes were seized as
per panchanama Ex.44 by him i.e. PW1. Muddemal register entry is taken
as per no.112/11 vide Ex.203 (extract of muddemal register). Though
PW34 was cross examined on other aspect of his evidence, so far as
seizure of clothes as per panchanama Ex.44 by him and corresponding
entry in muddemal register vide Ex.203 giving corroboration to evidence
...22/
Judgment 22 MCOC Pl. Case No.2/12.
of PW1 went unchallenged.
25. During course of argument, Learned Advocate for A3 by drawing
my attention towards folded lower portion of jeans pant article1B and
hole of bullet to articleB vehemently argued about nonpossibility of such
nature of injury and hole to the folded portion of jeans pant and so also
blood stain of inner part of jeans pant of left leg and also right leg of jeans
pant. While appreciating submission made by Learned Advocate for A3
about hole sustained to the jeans pant and blood stains on both legs,
material came on record in para no.11 of cross examination needs to be
appreciated rather than going on hypothetical and surmise. It is version to
PW2 in para no.11 that he is not in habit of wearing torn clothes so also
wearing a pant folding it. He admitted that article1B was not torn when
it was taken away by police, as it seems now. When his attention was
brought to torn position of jeans pant article1B, he gave specific answer
that it was not so folded when it was given to police. Ahead he deposed
that he himself had folded bottom of jeans pant without removing it and
thereafter surgical operation was performed in the Hospital. It was folded
in the Hospital before the operation. It is also his say that he had folded
said portion in order to avoid it from getting spoiled with blood stain. By
giving suggestion to him by showing blood stains on both right and left
portion of article1B, it has brought on record by defence that blood stains
are visible after second fold and blood stains are also seen inside the jeans
pant on right leg portion.
...23/
Judgment 23 MCOC Pl. Case No.2/12.
26. On the basis of such material brought on record from mouth of
injured Sohel, it is say of Learned Advocate for A3 that when bullet injury
was sustained only on the ankle of left leg and when article1B was
seized, it was not folded one and when it was produced before the Court, it
is folded one having blood stains on both legs of jeans pant, possibility of
tampering can not be ruled out. While appreciating above stated material
came on record in cross examination of PW2 in the context in which
argument is advanced by Learned Advocate for A3, one important thing
can not be forgotten that as per panchanama Ex.44, Jeans pant was
seized. It was seized and forwarded to FSL for examining blood stains as
well as hole sustained to article1B as to whether it was due to bullet
firing, together with bullet and pistols seized from A1,A2 and A3. And
therefore I am of view that further connecting evidence while appreciating
submissions of Learned Advocate of A3 also needs to be considered and it
is in the nature of report of Chemical Analysis (FSL) which is on record as
per Ex.231 through forwarding letter Ex.225 which are produced on
record by prosecution through evidence of PW36.
27. Before going to discuss documentary evidence in respect of Scientific
Expert namely FSL connecting evidence in the nature of spot panchanama
also needs to be looked into. From the mouth of PW14 prosecution placed
on record circumstances of spot vide Ex.129. As per testimony of PW14,
while adducing spot panchanama (of incident dated 1/10/2011) police
seized one live cartridge (bullet) and 2 empty cartridges marked as
article3,4 and 5. It is also his version that blood stained soil was collected
...24/
Judgment 24 MCOC Pl. Case No.2/12.
and all articles were seized and sealed on the spot including left foot
chappal. Spot panchanama Ex.129 is also having sketch showing actual
place where all four articles were lying on spot. Panchanama shows that
photographs of spot were also taken and to place on record. Prosecution
examined photographer PW24 who has drawn five photographs as per
article30. As per testimony of photographer, those were drawn through
digital camera. He identified photographs article30 which were handed
over to PSI Jagdale. There is no material challenge to oral evidence of spot
pancha PW14 and photographer PW24. On perusal of five photographs
article30 in reference to sketch which is attached with Ex.129, it is seen
that on spot left foot chappal is seen alongwith three cartridges and one
photograph of blood stain on ground. When there is no material challenge
to oral testimony of PW1, seizure of clothes of injured, PW14 panch of
spot panchanama in whose presence aforesaid live cartridge and two
empty cartridges together with chappal and blood stain soil were seized
and photographs drawn by photographer including evidence of
photographer to prove circumstances on spot, I am of view that direct
evidence is supported by circumstances on spot and in nature of
panchanama and articles seized gives corroboration to oral and direct
evidence of injured PW2, eyewitness PW27 and to some extent Dr. PW23,
so far as proof of incident dated 1/10/2011 is concerned.
28. Now to connect live and empty cartridges seized from spot of
incident through blood stain jeans pant article1B to the injured,
according to prosecution, there is seizure of fire arm from accused nos.1 to
...25/
Judgment 25 MCOC Pl. Case No.2/12.
3 as per trap of second incident dated 14/10/2011. So even before going
to scientific expert report (FSL) Ex.231, it is necessary to see evidence of
PW11 from whom panchanama Ex.112 is proved by prosecution. Baring
evidence of panch witness PW11 so far as second incident dated
14/10/2011, there is evidence of PW28 and first I.O. PW35 who were
heading the trap which was arranged on 14/10/2011. While making
discussion about incident dated 1/10/2011 limited evidence adduced by
PW11 needs to be considered which directly touches to seizure of fire
arms seized from A2 and A3. On perusal of testimony of PW11 which is
in consonance with contents of Ex.112 personal search of all three accused
in presence of PW11, it is sufficient to say that as per panchanama Ex.112
and oral testimony of PW11 before Court from A2 Nilesh, baring other
articles Pistol article 7 and two cartridges came to be seized while as from
A3 Prashant Rao Pistol article9 and three cartridges were seized. So far
as seizure of aforesaid articles from A2 and A3, his testimony is
challenged by accused by giving suggestion that suspects were standing in
one line and officer informed him that their search was to be effected. So
also that cartridges which are present before the Court for purpose of
identification were having same condition when they were seized at the
time of panchanama. He admitted that no receipt was given to accused
when articles were seized from them.
29. On behalf of both accused nos. 2 and 3, certain suggestions were
given to him about condition of articles when those were shown to him
before the Court and condition of those articles when those were seized as
...26/
Judgment 26 MCOC Pl. Case No.2/12.
there was time gap in between two on account of sending articles for
Chemical Analysis. Defence also tried to bring on record material like
polythene in which articles are produced before the Court as at the time of
seizure those were kept in cardboard before sealing it. Admittedly, as per
story of prosecution informant had given secret information to police about
passing of accused from spot where they were trapped, but said informant
is not examined. However, as per argument advanced by Spl. P.P. in
support of independent witness PW11, there is testimony of PW28 who
was accompanied with head of trap namely first IO PW35 Mr. Dhanawade.
So after going through corresponding oral evidence adduced by both
PW28 and 35 in reference to testimony of pancha witness PW11 so far as
seizure of fire arm and cartridges there is sufficient material placed on
record by prosecution to have some basis to connect said seizure to
incident dated 1/10/2011, of course with the evidence of Scientific Expert
in the nature of FSL report Ex.231.
30. Though Learned Advocate for A1 to A3 during the course of
argument submitted that prosecution simply placed on record FSL report
Ex.231 but failed to establish link right from forwarding seized articles
from Police Station to FSL and viceversa. However, such is not correct
position. As per material available on record, PW35 who is first IO gave
evidence about arranging trap on accused dated 14/10/2011, seizure of
fire arm and ammunition shown in panchanama Ex.112 and registration of
LAC No.2220/2011 at Nagpada Police Station which is subsequently
transferred to DCB CID as LAC no.35/11 regarding seizure of all articles at
...27/
Judgment 27 MCOC Pl. Case No.2/12.
the time of trap. There is specific evidence of PW35 which is corroborated
by PW11 independent panch witness. As per evidence of PW36, aforesaid
seized fire arm and ammunition were forwarded to FSL under his
signature as per forwarding letter Ex.225 and in due course, they received
FSL report which is filed on record with chargesheet from page 103 to 117
which is at Ex.231. So on the basis of aforesaid evidence brought on
record by prosecution right from seizure of fire arm and ammunition from
accused nos. 1 to 3 as per panchanama Ex.112 to prove said seizure and
forwarding articles to FSL till receiving FSL report Ex.231, there is oral
evidence to PW11, PW35 and PW36. And such sort of oral and
documentary evidence in view of provision of section 293 of Cr.P.C. (FSL
report Ex.231) may be used as evidence in the present case without asking
further proof from prosecution.
31. As per Ex.225 forwarding letter to FSL dated 15/10/2011 seized
articles as per panchanama Ex.44 were submitted to Forensic Lab and as
per Ex.232 dated 18/10/2011, arms and ammunition which are seized as
per panchanama Ex.112 were forwarded to Scientific Expert for
examination. Ex.231 is the report of FSL about articles of both incident
forwarded to the Forensic Lab for examination. It is collectively as per
pages 103 to 117 of Ex.231. Result of Analysis of jeans pant article 4A
shows that it is stained with blood on back side of human origin having
blood group inconclusive (Page 107). As per Page 117, on examination of
Ex.1, one copper jacketed bullet having brushing marks (of injured Sohel)
is fired from 7.65 mm pistol Ex.4 which is article9 as per panchanama Ex.
...28/
Judgment 28 MCOC Pl. Case No.2/12.
112 (Seized from A3). So far as incident dated 1/10/2011, this much
result of Analysis of corresponding Pistol seized from A3, bullet which was
taken out from left leg ankle of injured Sohel is sufficient to prove
connecting link of incident right from firing till FSL report, so far as
incident dated 1/10/2011 baring other findings of analysis which is having
connection with second incident dated 14/10/2011.
32. Then comes next piece of evidence that is motorbike used by A2
and A3 during commission of firing incident. Admittedly, when injured
PW2 was examined by prosecution, motorbike article28 was not
produced before Court. It is first time produced during evidence of PW21.
As per evidence of PW21 panch of memorandum U/sec. 27 of evidence
Act and seizure of motorbike thereafter as per panchanama Ex.162, A2
Nilesh as per memorandum statement took him and police to Miraroad
and discovered red colour Pulsar Company bike which was concealed
under the building of Miraroad and it was seized under seizure
panchanama Ex.162. As per his testimony, after discovery of motorbike,
A2 Nilesh went to adjacent house and gave call to his brother who
thereafter came to Police and as per direction of A2 Nilesh, gave key of
motorbike (article27). Both article27 & 28 were identified by PW21
before Court.
33. Defence in his cross examination brought material to the effect that
he was not knowing the building where accused took them. Accused gave
name of said building. So far as memorandum statement given by
...29/
Judgment 29 MCOC Pl. Case No.2/12.
accused Ex.161, in cross examination he stated that A2 gave confession in
his presence to police which was reduced by police and thereafter he
signed before proceeding to Miraroad. So far as colour of motorbike
article28, he admitted that it is having red colour as well as black colour
and it is not only of red or black colour but combination of both, however
according to him motorbike seized is same. So far as seizure of key which
was produced by his brother, in cross examination he stated that person
from whom key was brought from ground floor having some office like
room and accused who led to said person did not talk with that person
from whom key was seized. In cross examination, it is his specific version
that there is no identification mark on the key like his signature or label on
it. But he says that key article27 is the same key which was seized when
motorbike was discovered as per panchanama. It may be noted that
motorbike was produced before the Court after evidence of eyewitness
PW2. Neither prosecution nor defence recalled PW2 for purpose of
identification of motorbike article 28. However, PW27 who is eyewitness
identified motorbike article28, during his chief examination by saying that
it is the same motorbike which was used by A2 on that day. About
identification of motorbike, the same suggestion were given to him by
defence that motorbike before Court is of red colour and it can also be
called as red and black colour. In cross examination, defence himself
brought on record certain identification mark of motorbike that at backside
of motorbike there was identification like “07” written at mudguard of
backside.
...30/
Judgment 30 MCOC Pl. Case No.2/12.
34. He was substantially cross examined on behalf of A3 about number
of motorbike seen by him on the day of incident and according to him,
when he gave statement to the police that he had given number of
motorbike as MH 04 EN 4263. He was confronted with number of
motorbike mentioned in his supplementary statement which is KH 01 EN
4263. So far as production of motorbike (during evidence of PW21) at
belated stage, it is evidence of first IO PW35 that motorbike was kept in
dumping yard and as per letter issued by Sr.P.I. UnitIII dated 16/05/2012
filed on record with extract of station diary entry alongwith production of
motorbike before Court as per letter dated 17/07/2014 (Ex.216). PW35
was cross examined by defence about the variation of make of motorbike
which is mentioned in FIR i.e. Unicorn motorbike.
35. During the course of argument, Learned Advocate for A2 and A3
vehemently argued about description of motorbike given in FIR Ex.46 and
46A about make of motorbike having red colour only and contents of
seizure panchanama Ex.162 wherein description of motorbike is given that
red colour Bajaj Pulser having no.MH 04 EN 4263. In reference to above
discussed direct oral evidence of witnesses including delay of production of
motorbike before the Court again while appreciating this piece of evidence
i.e. motorbike and key seized by police during investigation and produced
before the Court through above referred prosecution witnesses, I am of the
view that this one piece of evidence can not be considered isolation. Of
course, to prove incident dated 1/10/2011, all above discussed evidence
which is in the nature of oral evidence and seizure of articles on account of
...31/
Judgment 31 MCOC Pl. Case No.2/12.
injured witness and eyewitness having corroboration through Scientific
evidence needs to be appreciated conjointly to give finding as to whether
prosecution proved incident dated 1/10/2011.
36. Even before appreciating above discussed different part of evidence,
again there remains evidence as to identification of A2 and A3 with their
specific role while committing incident dated 1/10/2011. There is direct
evidence of injured Sohel as well as eyewitness Sohel so far as role of both
in incident (PW2 and 27 respectively). They both in there direct evidence
while adducing before the Court identified A2 as driving motorbike at the
time of incident and A3 firing three bullets from Pistol. So far as presence
of injured Sohel on spot it is his testimony that he was working as Estate
Agent with Nirbhan Builder and on the day of incident by noticing Sagir,
he came out of the office and his coming out of the office is spontaneous
action on his part, his visit to the office was not for any specific purpose
and there was also no fixed time to attend the office every day. He had
also not informed anybody about his visit to said office on that day. On the
basis of such material came on record in cross examination, it is argued by
Learned Advocate for A3 that accused were not knowing about PW2's
presence in the office. He had no enmity with either accused or Ejaj
Lakadawala and therefore, there was absolutely no reason for accused to
fire PW2. It is also say of defence that when there was demand of
extortion amount from Akram Nirbhan (PW15) by Ejaj Lakadawala and
when his father was present on the site, firing would have been made by
targeting father of PW15.
...32/
Judgment 32 MCOC Pl. Case No.2/12.
37. While appreciating such submissions of defence, fact can not be over
looked that even as per material brought on record by defence in the
evidence of PW27 that there was no intention of killing of PW2, as bullet
was not fired on chest as both injured and assailants were facing each
other therefore from such material brought on record on behalf of defence
in the evidence of PW2 and PW27, one thing which is clearly seen that
while committing act of firing neither accused was aiming to any particular
person like Akram or his father as argued by defence. So in my view,
presence of PW2 injured on spot is very natural one and coming out of the
office by seeing Sagir is spontaneous and very natural.
38. On perusal of memorandum panchanama of T.I. Parade Ex.153, it is
seen that out of five witnesses except witness Salauddin who is not
identified by A2, all others have identified A2 and A3 during their
parade amongst five witnesses. As stated above, PW2 and PW27 are
examined by prosecution who identified both A2 and A3 with their
specific role in incident dated 1/10/2011. To corroborate evidence of PW2
and PW27 ,there is evidence of PW19 SEO who conducted T.I. Parade and
who is author of memorandum of panchanama Ex.153. Procedure
conducted by PW19 while performing T.I. Parade is challenged by A2 and
A3 on some material grounds. First amongst them is some portion
language written in Ex.153 viz “Amhi Panch ani Nayab Tahsildar” (Page 31
of memorandum) “Nayab Tahsildar Sahebani Suraksha Rakshkas
Sangitale” Page32, “Sahebani Firyadi yas Swatakade bolaun ghetle” Page
41. Having mention such writing in Ex.153 according to defence when
...33/
Judgment 33 MCOC Pl. Case No.2/12.
PW19 was author of it such things should not have been mention and
therefore doubt was created on holding T.I. Parade by defence. Secondly
on account of admission of PW19 that while conducting T.I. Parade, rough
note was prepared but not filed on record according to defence goes
against prosecution. He did not receive FIR, panchanama and other
investigating papers before proceeding to Jail except letter given by
Collector is another lapse on part of SEO. So also that there was no other
documents with him when he proceeded to Jail. There is also substantial
cross examination about body features including body built of dummy
persons and their facial description with accused.
39. After going through such and other material came on record in cross
examination of PW19 question is whether holding of T.I. Parade can be
doubted. Though there are certain latches in holding T.I. Parade of PW19
so far as identification of A2 and A3 as author of incident dated
1/10/2011, I am of view that there is direct evidence before the Court that
of both Sohels that they saw both A2 and A3 on the spot, including their
specific role. So in such a case their identification in T.I. Parade becomes
secondary. At the same time when there is positive evidence about
identification of A2 and A3 by PW2 and PW27 before Court having
corroboration from PW19 SEO, merely on the basis of some lacuna/lapses
on the part of SEO PW19 about holding T.I. Parade of both A2 and A3
evidence of all three PWs can not be discarded so far as incident dated
1/10/11 is concerned.
...34/
Judgment 34 MCOC Pl. Case No.2/12.
40. Then comes a last piece of evidence which is in the nature of
confession of A2 Ex.184 and 186 recorded by PW29 DCP Keshav Patil
(ZoneIV) and that of confession of A3 Ex.137 and 138 recorded by PW16
DCP Kishor Jadhav(ZoneIII). To prove confession of both A2 and A3,
there is evidence of PW28 and PW32 in support of Ex.184 and 186 and
that of witness PW25 and PW26 to give corroboration to PW16. It is true
that A2 on the same day when his confession was recorded by PW29 gave
statement before C.M.M. retracting his confession vide Ex.190 and A3 by
forwarding letter Ex.3 to this Court dated 27/06/2012 by stating therein
that confession was extracted by threat and pressure to release him on
bail. Prosecution opposed Ex.3. A3 submitted by their reply Ex.3 on the
ground of delay and that of ulterior motive. Evidence of above stated
witnesses produced on record in proof of confession including above stated
part of retraction on part of accused will have to be considered while
appreciating it to prove whole case of prosecution as per charge. However,
so far as incident dated 1/10/2011 is concerned, both accused gave
admission on commission of incident dated 1/10/2011 with their specific
role as alleged by prosecution. So by taking only that much material from
confession of both accused without going into much merit and demerit of
confession of both accused at this relevant stage, it is suffice to say that
part of confession relating to incident dated 1/10/2011 supported the
prosecution to prove chain of evidence.
41. So while giving finding to prove the incident dated 1/10/2011 on
basis of above discussed evidence by way of summary, it can be said that
...35/
Judgment 35 MCOC Pl. Case No.2/12.
by examining total 8 witnesses, prosecution tried to establish involvement
of A2 and A3 in the incident dated 1/10/11. Injured Sohel Khan and
eyewitness Sohel Dalvi gave direct evidence about firing incident against
both of them including specific role of each accused in the incident stated
above. They both identified A2 and A3 before the Court to support
prosecution on the basis of their identification through T.I. Parade which is
conducted by PW19. Seizure of clothes of injured, bullet recovered from
body of injured, empty cartridges and other articles seized from spot and
supportive evidence of Doctor is also there to support prosecution. Such
piece of evidence can not be discarded merely on account of some
admission given by either injured or eyewitness or even by Doctor as
discussed in relevant para of judgment.
42. Next piece of evidence is FSL report which connects bullet recovered
from left leg of injured to the pistol seized from A3 who did firing as per
case of prosecution. Above discussed evidence produced by prosecution in
respect of motorbike and key recovered at the instance of A2 can not be
discarded on reason of contradiction in make of motorbike or its colour as
black and red or only red as per memorandum panchanama and evidence
before Court. Evidence in nature of confessional given by both A2 and A3
is additional piece of evidence so far as incident dated 1/10/11 is
concerned. Photographs article30 which are produced by prosecution
through evidence of photographer PW24 also supports prosecution to
prove the circumstances of spot and articles seized from spot as per Ex.
129. Therefore I am of view that when there is direct evidence from
...36/
Judgment 36 MCOC Pl. Case No.2/12.
mouth of injured Sohel Khan and Sohel Dalvi, their direct evidence can not
be doubted on the basis of certain admission given by them to the
hypothetical suggestion by defence that too when their oral evidence is
having support from weapon seized from A2 and A3, Doctor evidence,
FSL report and its opinion, motorbike used in incident, identification of
both A2 and A3 before the Court which is corroborated by SEO of
T.I.parade and lastly their own confession. Ultimately on the basis of all
above discussed material on record, I hold that prosecution proved
incident dated 1/10/11 as alleged in chargesheet against A2 and A3.
GroupII
Incident dated 14/10/2011
43. As per testimony of PW28 and PW35 (API Tawade and PI
Dhanawade) on 14/10/11 at about 12.30 pm. when they were in UnitIII
Crime Branch Office, Sr. P.I. Marde called them in chamber where one
informant (Khabari) was present and he gave information that gangster
Ejaj Lakadawala's sharp shooter namely Prashant Rao and his associates
are expected to come near BMC beat chowki with fire arms and therefore,
as per direction of Sr.P.I., one team was formed to arrange the trap under
the head of PW35. It is their corroborative version they both alongwith
other policemen reached on spot alongwith informant and they saw three
persons coming towards BMC beat chowki in suspicious condition.
Informant told them that those are three persons as per his information
and one amongst them is Prashant Rao (A3). It is version of PW28 that
PW35 Dhanawade gave signal to the staff members of the team and took
...37/
Judgment 37 MCOC Pl. Case No.2/12.
all three in custody. PI Dhanawade asked police constable Kadam to call
two witness. Those were called and in their presence personal search of all
three persons was taken and as per the panchanama Ex.112 two pistols
and four cartridges were seized from accused no.1 Riyaz Ahamed Hussain.,
one pistol each from accused Nilesh and Prashant Rao alongwith two and
three cartridges respectively seized from them with other articles as shown
in panchanama. Pistols and cartridges seized from all three accused are
identified by both PW28 and PW35 in their respective evidence.
44. So far as material brought on record in their cross examination by
defence, it is say of PW28 that informant was with them on the spot from
police station. They did not feel necessary to verify secret information in
presence of some independent persons. Trap was arranged by the side of
road on footpath. They had reached on spot by their police scorpio jeep
within 10 minutes. Police constable Kadam was asked to bring two pancha
witnesses. Station diary entry is taken before proceeding from Crime
Branch Office to spot. Copy of panchanama Ex.112 is not given to
accused. When pistol article9 was shown to PW28 he admitted that lakh
seal is not there on body of pistol. He volunteers that it might have
happened when property was sent to CA. In cross examination it is
specific version of PW28 that he himself made station diary entry. It is his
admission that he alongwith other officers had proceeded to spot
alongwith their service revolvers. None of the accused resisted to the
personal search. He also admitted that police did not give their personal
search to panch witnesses. Muddemal seized from all three accused is
...38/
Judgment 38 MCOC Pl. Case No.2/12.
deposited to C.P. Office on the same day from N.M. Joshi Marg Police
Station. It is also admission of PW28 that no receipt was given to accused
about seizure of articles from them.
45. So far as material brought on record from mouth of PW35, in cross
examination after seizure of articles those were given in possession of
PW28 API Tawade. Sealing material was taken from UnitIII itself and he
himself had gone to Nagpada police station for registration of LAC no.
2220/11 and complaint of said incident dated 14/10/11 was registered at
Nagpada police station by ASI Chalke. It is also evidence of PW35
Dhanawade that after seizure of weapons and articles from accused and
registration of LAC no.2220/11 at Nagpada police station, all accused
alongwith seized fire arms were taken in custody of DCB CID by registering
LAC no.35/11 as per direction of Addition C.P. Crime. So far as seizure of
weapons and articles PW35 supported the version of PW28. In his cross
examination defence has brought on record the fact that two police jeeps
and some bikes were used by them to reach the spot. He deposed about
number of police jeep as MH 01 ZA 934. He admitted that he was not
knowing about involvement of accused in C.R.No.138/11 till 19/10/11 as
he personally did not interrogate accused from 14/10/11 to 19/10/11. It
is his version that description was given by informant before proceeding to
trap. In cross examination made by A3 details about how they arranged
trap is brought on record. It is his version that accused were not taken to
Nagpada police station when CR was registered at Nagpada police station.
It is his say in cross examination that they interrogated with accused about
...39/
Judgment 39 MCOC Pl. Case No.2/12.
their involvement in any other crime in between aforesaid period. PW36
has little role about happening of both incidents as he was ACP having role
after invoking provisions of MCOC Act as per CR No.86/11 i.e. after
1/11/11. So far as weapons and other articles seized from accused it is his
version in cross examination that he has not verified property which was
seized by earlier IO. He had not been to the beat chowki or office of Unit
III of DCB CID. So far as possession of fire arms by accused nos. 1,2 and 3,
it is his version that separate chargesheet before 37th A.C.M.M. Court is
filed against them.
46. Apart from above discussed testimony of PW28 and PW35 and to
some extent that of PW36 there is evidence of independent panch witness
of panchanama Ex.112 i.e PW11. He gave evidence before the Court that
on 14/10/11 when he was passing from Peerkhan street in Nagpada, he
was stopped by police personnel and told that they caught member of
gangster Ejaj Lakadawala namely Prashant Rao and asked his willingness
to act as panch witness. According to him he agreed to act as panch
witness and therefore he was taken near Mustafa manzil BMC beat
building where three persons were there in custody of police. In his
detailed evidence, he deposed before the Court that from accused Riyaz
Ahmed Shaikh 2 pistols and two cartridges alongwith other articles were
seized, from accused Nilesh one pistol and two cartridges and from
accused Prashant Rao one pistol and three cartridges alongwith other
articles were seized and panchanama was prepared about seizure of
articles from accused. During his evidence he identified all 4 pistols seized
...40/
Judgment 40 MCOC Pl. Case No.2/12.
from accused persons alongwith cartridges and other articles right from
article 4 to 11 as shown in panchanama Ex.112. While adducing evidence
he identified all three accused present before the Court from whom articles
were seized as per panchanama Ex.112.
47. His testimony in cross examination shows that prior to this
panchanama he never acted as panch witness and there is no police case
against him. According to him all three accused were standing by the side
of road when he reached on spot. So far as suggestion about position of
cartridges when shown to him, it is his say that cartridges were in same
condition when it were seized at the time of panchanama and he did not
know as to how wax was affixed over the butt. He admitted that there is
no seal on the polythene bag. He admitted that no receipt was given to
accused by police about seizure of articles from them. He admitted that
white cardboard in which articles were kept at the time of panchanama is
not before the Court. It is also his version in cross examination that
panchanama was being drawn as per articles shown to him and he did not
handle the articles which were seized at that time.
48. On the basis of above discussed evidence came on record specifically
in cross examination of PW28 and PW35, it is say of defence that when
incident of firing took place on 1/10/11 and there is gap of about 14 days
of second incident, so called recovery from accused that of fire arm and
other articles can not be used against accused. And evidence of PW28 is
silent about muddemal register after seizure till forwarding it to FSL. It is
...41/
Judgment 41 MCOC Pl. Case No.2/12.
also say of defence that there is discrepancy in the evidence of both police
officers about seizure made from accused, taking accused to Nagpada
police station and handing over accused as well as seized property to DCB
CID by transferring LAC no.2220/11 to LAC no.35/11 of DCB CID. It is
also say of defence that in absence of evidence of Sr.PI Marde and non
examination of informant who gave secret information to police, one can
not believe testimony of both police officers (PW28 and PW35) to prove
seizure of firing arms and articles as shown in panchanama Ex.112.
According to defence non production of documents pertaining to the
vehicle used for trap is a glaring infirmity in the case of prosecution which
can not be overcome even by evidence of PW11 panch of Ex.112. It is also
argued on behalf of accused that seizure of firm arms and articles from
accused as per panchanama Ex.112 is at the most case under Arms act
against the accused and as per the admission given by PW36 said case is
pending before 37th A.C.M.M. Court Mumbai. And therefore prosecuting
accused under Arms act in the present case is nothing is doubleJeopardy
U/sec. 300 of Cr.P.C..
49. All above stated points argued on behalf of defence and material
came on record in the evidence of three police officers and one
independent panch witness needs to be appreciated in the context with
story of prosecution which starts from incident of firing dated 1/10/11.
According to prosecution it connects accused nos. 2 and 3 from first
incident to next incident that of recovery of weapons used and possessed
by accused nos. 2 and 3 right from first incident till its recovery by way of
...42/
Judgment 42 MCOC Pl. Case No.2/12.
second incident. Same needs to be seen with other material in their
evidence.
50. As per evidence of PW28 after trap and seizure of fire arms and
other articles from accused nos.1 to 3, they all came to Nagpada police
station alongwith accused and on behalf of state, ASI Chalke lodged FIR.
His testimony is corroborated by PW35 Dhanawade who told to the Court
that ASI Chalke was complainant of said FIR which is registered at
Nagpada police station vide LAC No.2220/11 against accused nos.1 to 3
which is subsequently transferred alongwith seized articles and accused to
DCB CID in LAC no.35/11. To give corroboration to the testimony of
PW28 and PW35 prosecution by examining PW33 PSI Bhosale who was
duty officer of Nagpada police station on 14/10/11 placed on record
station diary entry of LAC no.2220/11 in proof of printed FIR about
incident dated 14/10/11 which is registered U/sec. 3/25, 27 of Arms Act.
It is evidence of PW33 that as per information given by ASI Chalke who
was accompanied with Mr. Chavan and others of Crime Branch UnitIII,
they caught accused nos. 1 to 3 with firm arms and other articles. He
recorded statement of ASI Chalke and also filled up proforma of FIR in
respect of crime. While adducing evidence about printed FIR of LAC no.
2220/11 it is his say that true copy of FIR is having seal and signature of
Sr.PI. It is recorded by him as per narration of Mr. Chalke. It also bears his
signature and signature of Mr. Chalke and true copy of FIR filed on record
is having signature of Sr.PI of DCB CID, UnitIII. By such evidence
prosecution while proving FIR of LAC no.2220/11 produced on record
...43/
Judgment 43 MCOC Pl. Case No.2/12.
station diary entry of LAC no.2220/11 Ex.201. In cross examination it is
his say that they have not taken entry of muddemal in register at Nagpada
police station as it is not required to be entered in muddemal register as
without making entry in their register it was handed over by him to Crime
Branch UnitIII.
51. So on the basis of above discussed evidence of PW28, PW35 and
PW33 it has to say that these three police officers amongst whose earlier
two were head and member of trap, placed on record sufficient material to
prove seizure of fire arms, cartridges and other articles from accused nos. 1
to 3 as per seizure panchanama Ex.112. In addition to oral evidence of
PW28 and PW35, evidence of PW33 who registered FIR of LAC no.
2220/11 at Nagpada police station as per station diary entry Ex.201 about
registration of LAC no.2220/11 under Arms Act against three persons is
proved by prosecution. Their corroborated testimony which supports
prosecution in proving seizure and trap dated 14/10/2011 can not be
discarded and thrown away as per argument of Learned Advocate for
accused that separate chargesheet before C.M.M. 37th Court is filed against
accused under Arms Act which kept in abeyance by this Court till decision
of this case. Point which is argued by defence about applicability principle
of doubleJeopardy will have to be considered while appreciating all above
stated evidence available on record about incident dated 14/10/11 and as
to whether this incident is having connection with earlier incident dated
1/10/11 and what is material produced on record by prosecution to
connect seized articles from accused to the incident dated 1/10/11. At this
...44/
Judgment 44 MCOC Pl. Case No.2/12.
stage it is suffice to say that so far issue of deciding both incidents principle
of doubleJeopardy will not come in the way as case before Magistrate by
order of this Court is kept in abeyance. So also that while deciding this
case there is no question of trial of either accused for same offences for
which they are convicted or acquitted previously for such offences as per
requirement of section 300 of Cr.P.C.
52. In next piece of evidence PW36 deposed about sending of seized
articles i.e. fire arms and cartridges (as per panchanama Ex.112) to FSL for
examination as per Ex.225 which also includes other articles seized from
accused during panchanama. FSL report Ex.231 is placed on record by
prosecution during evidence of PW36 from page 103 to 117. Finding and
report given by FSL about fire arms, cartridges, clothes of injured, bullet
seized from injured and empty cartridges seized from spot of firing
incident is given by scientific expert as per report Ex.231. It is already
discussed in relevant para of judgment while deciding incident dated
1/10/11. By keeping issue as to whether prosecution proved possession of
fire arms with accused nos.1 to 3 as per section 3/5 of Arms Act or
whether their possession of fire arms and cartridges is to be considered as
per charge under MCOC Act reserves to be discussed at relevant stage,
while giving finding about II incident, it is suffix to say at this stage that on
account of seizure of all those articles from accused nos. 1 to 3, case of
possession as per seizure panchanama Ex.112 is proved by prosecution.
Ultimately it has to hold that prosecution proved incident dated 14/10/11.
...45/
Judgment 45 MCOC Pl. Case No.2/12.
GroupIII
Test Identification Parade
53. So far as identification of A2 and A3 is concerned, their role in
incident dated 1/10/11 and identification by injured and eyewitness to
A2, evidence of PW21 panch of seizure panchanama of motorbike and
Key alongwith evidence of PW28 and PW35, it has to say that there is
sufficient material on record about their identification by prosecution
witnesses stated above about both incident dated 1/10/11 and 14/10/11.
While discussing evidence on record in respect of incident dated 1/10/11
in relevant para of the judgment discussion is already made about
testimony of PW2 and PW27 alongwith SEO PW19 who conducted T.I.
parade(Memo Ex.153). So far as T.I.parade and memo Ex.153 is concerned
it is fact that none of the panch witness is examined by prosecution.
However, there is oral evidence of SEO PW19 to prove memo of T.I.
parade Ex.153. Both injured Sohel Khan and eyewitness Sohel Dalvi as per
memo Ex.153 identified A2 and A3 including their role in 1st incident
dated 1/10/11. On account of evidence of PW2 and PW27 about
identification of A2 and A3 including testimony of PW19 discussion of
which is made in relevant paras of the judgment and reasons given while
appreciating evidence as to the identification of A2 and A3, I am of view
that so far as identification of A2 and A3 is concerned there is no
difficulty to accept evidence of prosecution discussed above.
54. So far as fire arm pistols and cartridges seized from accused nos. 1
...46/
Judgment 46 MCOC Pl. Case No.2/12.
to 3 is concerned, evidence adduced by PW11 about panchanama Ex.112
and corresponding evidence including analysis of scientific expert from FSL
vide Ex.225 and 231 is already discussed in para nos.28 to 32 of judgment.
To avoid repetition of discussion of evidence on point of connecting pistols
and cartridges used by A2 and A3 in incident dated 1/10/11 and seizure
of dated 14/10/11 that of arms and ammunition from A2 and A3, in view
of discussion made in above para in judgment at this point of time it is
suffice to say that prosecution has produced on record sufficient evidence
to say that fire arms pistols and cartridges used and possessed by A2 and
A3 at the time of 1st incident are recovered by police during seizure dated
14/10/11.
55. So far as role of accused no.1 is concerned admittedly he has no role
in incident of firing and there is only evidence about seizure of 2 pistols
and 4 cartridges alongwith other articles from him as per panchanama Ex.
112. And to prove seizure of articles from him as stated in above para of
the judgment, there is evidence of PW11,PW33, PW35 and PW36, and
again evidence in the nature of report of FSL right from forwarding articles
seized from all accused vide Ex.225 and FSL Report Ex.231. So far as
identification of accused no.1 is concerned considering his role from day of
seizure i.e. 14/10/11 there is limited evidence of aforesaid witnesses. And
in my view so far as seized articles from A1 is concerned, his identification
is not in much dispute like A2 and A3. It is also because his connection
lies more in confession given by A2 and A3, barring his identification
about incident dated 14/10/11. Therefore next point of determination is
...47/
Judgment 47 MCOC Pl. Case No.2/12.
confession given by A2 and A3 which is in preceding para of judgment.
GroupIV
Confession of A2 and A3.
56. On confession of A2 there is evidence of PW28 & PW32 whose role
is that of taking accused before DCP ZoneIV on 8/11/11. As per oral
testimony of PW28 on 8/11/11 as per direction of ACP Vatkar (PW36)
and as per letter issued by Shri Vatkar (Ex.176) he took custody of Nilesh
and produced him before DCP ZoneIV i.e. PW29 Keshav Patil. As per his
cross examination no other instructions were given by ACP Vatkar to him
other than production of A2 before DCP and when he took custody of
accused for his production before DCP accused was in lockup of Crime
Branch. He admitted that accused was in custody from date of trap i.e.
14/10/11 till 8/11/11 and he had no occasion to interrogate accused
during that period. It is also his version that he helped ACP Vatkar in
investigation and when accused Nilesh was produced before DCP, he
received acknowledgment of production of accused. So far as documentary
proof about taking custody of A2 from Crime Branch and production
before DCP is concerned, it is his say that station diary entry is taken to
that effect. PW32 in his evidence stated that he was deputed by Sr.PI
alongwith PW28 for production of accused Nilesh before DCB Zone IV
and while taking accused from custody of Crime Branch and producing
him before DCP, station diary entry was taken and accused was produced
on 8/11/11. It is his further version that after production of A2 before
...48/
Judgment 48 MCOC Pl. Case No.2/12.
DCP and after completing work in his chamber, accused was again given in
their custody with direction of medical checkup and to keep accused in
separate cell in Matunga lockup by taking care that nobody from Crime
Branch (I.O.) will come in his contact. According to him by following
directions given by DCP accused was taken back and reproduced on again
9/11/11 at about 1.30 p.m. before DCP ZoneIV i.e. PW29 and station
diary entry was also taken of 9/11/11. According to him when accused
was inside the chamber of DCP, he alongwith PW28 and other police
officers were outside the chamber and at 17.50p.m. DCP called him in
chamber and handed over two sealed envelopes and directed them to take
accused before C.M.M. alongwith two envelopes. Accordingly they took
accused and sealed envelopes and produced accused as well envelopes
before C.M.M. and after completing work in the office of C.M.M., he took
accused in the office of ACP DI and gave all details to ACP Shri Vatkar. As
per his further testimony after completing work of 9/11/11, accused was
given in custody of DCB CID UnitIII and by returning to Matunga police
station, he took station diary entry. By his evidence prosecution produced
station diary entry of both 8/11/11/ and 9/11/11 Ex.199, in support of
oral testimony of both PWs28 and 32. There is no material admission
given by PW32 in his cross examination except position of Matunga police
station, compound having two police station i.e. Sion and Matunga and
also having ACP Sion and Matunga DCP office in the same building. He
admitted that accused was kept in lockup which is situated in same
campus of Matunga Division.
...49/
Judgment 49 MCOC Pl. Case No.2/12.
57. PW29 DCP Keshav Patil who recorded confessional statement of A2
partI vide Ex.184 and confessional statement PartII vide Ex.186, while
adducing his evidence stated on oath that while working as DCPI, he was
aware about provisions of MCOC about recording confession of accused
and as per order issued by C.P. Crime Himanshu Roy Ex.180, he wrote
letter as per Ex.181 to PI Matunga for deputing one officer and other staff
for production of accused Nilesh on 8/11/11. Accordingly, accused Nilesh
was produced before him in veil. He asked PW28 and 32 to go out of the
chamber and with the help of Computer operator Mrs. More, he recorded
answer given by accused as per confessional statement partI in Marathi
language which was known to accused. It is his specific version that while
recording confessional statement partI in question and answer form, he
satisfied about readiness and willingness of accused to give confession
which was voluntarily given by accused without pressure or promise from
any police officer. It is also his version that he explained to accused that if
confession is given by him, it can be used against him in the Court and he
may be punished on the basis of confession. According to him with full
understanding of questions accused gave answers and as he was satisfied
that accused was ready and willing to give confession and it was
voluntarily, he gave 24 hours time to accused to rethink by directing PW28
and his team to produce accused again on next day i.e. 9/11/11 at 1.30
p.m.
58. It is his version that he had directed PW28 and other officers to
keep accused in Matunga Division in separate cell by taking care that
...50/
Judgment 50 MCOC Pl. Case No.2/12.
other accused shall come in his contact. It is his further evidence that
accused was again produced by same police officer at 1.30 p.m. on
9/11/11. Again by putting different questions in confessional statement
partII, he satisfied that there was no inducement, threat or promise to the
accused for giving confession and he is ready and willing to give confession
voluntarily. On enquiry with accused, he satisfied that accused is ready
and willing to give confession and therefore, he recorded confessional
statement partII and ultimately actual confessional statement was given
by accused in his own language i.e. Marathi as per Ex.186. According to
him, separate certificate is given through confessional certificate vide Ex.
187. He identified his signature and signature of accused no.2 Nilesh from
confessional certificate as well as confessional statement part – I & II stated
above. It is his further evidence that confessional statement part I & II
which were separately sealed alongwith his letter sent to C.M.M. vide Ex.
188. According to him as per letter Ex.189, PW32 was directed to hand
over custody of aforesaid accused to ACP D1 i.e. Yashwant Vatkar of Crime
Branch after verification by C.M.M.
59. In cross examination he admitted that C.M.M. is also empowered to
record confession of accused. He did not inform to accused about the
same. According to him his hand writing portion Ex.187 certificate is not
part of confession and therefore, it is hand written. It is also his say in
cross examination that direction given by Joint C.P. for recording
confession is mandatory on him. About retraction of confession by accused
before C.M.M. on 9/11/11 as per Ex.190 it is his say that he do not know
...51/
Judgment 51 MCOC Pl. Case No.2/12.
about retracting of confession by accused at the time of verification by
C.M.M. PW28 and his team were directed to return the accused by
keeping him in Matunga lockup and a sealed envelope used to be in
possession of C.M.M. for forwarding it to the Spl. Court. In further cross
examination, it has come on record that he did not make any enquiry with
lockup official that accused was kept in lockup and during that period
conduct and behaviour of accused during rethinking period of 24 hours.
60. So far as confession given by accused no.3, PW25 and PW26 are
police officers who took him from lockup to DCP ZoneIII that is PW16
for recording of confession. As per evidence of PW25 on 8/11/11 as per
direction of Sr.P.I. Marde, he alongwith other staff took accused Prashant
Rao (A3) to DCPZoneIII as per letter Ex.136 which is having
acknowledgment of production of accused before DCP. In cross
examination, it is his say that they used to maintain station diary entry
about transferring accused from one Unit to other and it is taken by him in
Crime Branch Office ZoneIII as there is no station diary maintained in
DCP ZoneI. PW26 Nitin Potdar is other officer who was deputed to take
accused no.3 for recording confessional statement before DCPZoneIII
alongwith PW25. In his detailed evidence he deposed that on 8/11/11 at
about 12.00 p.m., by police jeep they proceeded A3 to DCBZoneIII and
at about 2.45 p.m. DCP called him in chamber. He produced accused in the
chamber of DCP. At that time steno Mrs. Bhosale was present in the cabin
and he was told to wait outside. After completing work of accused by DCP
again custody was given to him with all necessary instruction, stated by
...52/
Judgment 52 MCOC Pl. Case No.2/12.
him in his evidence, with direction to produce accused on 9/11/11. They
kept accused after medical checkup at Saat Rasta Police lockup by taking
entry in station diary at Nagpada Police station.
61. On 9/11/11, after production of accused before DCP ZoneIII, they
were waiting outside and at about 10.40 p.m. again DCP called him in
chamber and gave custody of A3 alongwith two envelopes and covering
letter to hand over to C.M.M. They took sealed envelopes and accused
before C.M.M. and waited outside C.M.M. Hall. After completing work in
the office of C.M.M., accused was given in his custody. The team again
returned to DCP ZoneIII and handed over letter given to DCP and ACP.
Accused was lodged in custody of Crime Branch. Again station diary entry
is taken in Nagpada police station. According to him log book entry about
taking accused on both dates is taken. By his evidence prosecution
produced on record station diary entry of 8/11/11 and 9/11/11 vide Ex.
173. In cross examination, he admitted that there is no logbook in
Nagpada police station and therefore, accused was kept in Sat Rasta police
lockup. They were told that accused was kept in Nagpada police lockup by
DCP. It is his version in cross examination that there is entry about keeping
the accused in separate room in Saat Rasta lockup and separate room was
supervised by Nagpada police station.
62. So far as testimony of PW16 DCP who recorded confession of
accused no.3 as per order of Joint CP Crime dated 5/11/11 he was
directed to record confession statement of A3 as per letter Ex.134.
...53/
Judgment 53 MCOC Pl. Case No.2/12.
Therefore he issued letter to ACP Crime D1 for production of accused
before him vide Ex.135. On 8/11/11 at about 12.00 p.m. as per letter Ex.
136 of ACP D1 accused was produced before him. He by putting required
questions to verify his willingness and voluntariness of confession,
recorded confessional statement of partI. Accused knows Marathi
language. According to him questions and answers of PartI of confession
was typed on computer by his stenographer. In his detailed evidence he
gave iota of all questions put to accused which are mentioned in PartI of
confession statement Ex.137. According to him accused was given in
custody of API Potdar i.e. PW26 by directing him to take accused in veil
and reproduce him on 9/11/11. Again accused was produced before him.
He verified from accused about voluntariness by putting different
questions which are recorded in confessional statement partII. According
to him after recording answers from accused to his questions in partII of
confessional statement he was satisfied that there was no pressure or
threat to accused about giving confession and as he was satisfied that
accused is ready and willing to give confessional statement, he recorded
actual confession of accused in Marathi language. After recording second
part of confession statement Ex.138, as per his further evidence both partI
& II were kept in two different envelopes and sealed envelopes were
forwarded to C.M.M. for verification by asking PW26 to produce accused
in veil before C.M.M.
63. So far as his cross examination is concerned reason for writing letter
Ex.139 to Sr.PI Nagpada police station was immediately hand over
...54/
Judgment 54 MCOC Pl. Case No.2/12.
custody of accused to Nagpada police station after recording partI, he
admitted that he did not ascertain since how long accused was in his
custody. According to him he did not ask about medical examination of
accused while recording of confession statement partII. It is also his
version that he did not inform to accused that his confession can also be
recorded by Magistrate. He is confronted with bracketed portion of
confession partI (Ex.137) which is hand written to which he stated that, it
is in the handwriting of accused including thumb impression below
confession partI. He admitted that there is no mention below thumb
impression that of left hand thumb impression of accused. However he
admitted that below the handwriting of accused which is marked at
portion mark A there is signature of accused. PW36 while in cross
examination by A3 stated that if person is accused of firing he would be
interrogated. He admitted that after receipt of letter on 6/11/11 he
decided to record confession statement of PartI on 8/11/11. According to
him it was his decision to keep custody of accused in Nagpada police
station. PW16 gave specific evidence to the suggestion of accused that it
is incumbent on the part of an officer to ensure that the confession should
be voluntary. However he can not say about its truthfulness. He admitted
that he did ascertain truthfulness of what he has recorded i.e. about actual
confession of accused.
64. While appreciating above discussed evidence of two different police
officers who took respective accused from Crime Branch and Nagpada
police lockup before DCP ZoneIII & IV for recording confessional
...55/
Judgment 55 MCOC Pl. Case No.2/12.
statement alongwith testimony of DCP PW16 and PW 29 one important
aspect to be considered here is retraction of confession by accused no.2. As
per his statement recorded by C.M.M. on same date i.e. 9/11/11 which is
forwarded with letter Ex.190(by which sealed envelopes of confession was
forwarded to Spl. Court by C.M.M.) he stated before C.M.M. that police
threaten him and recorded his statement and obtained his signature. It is
not voluntarily stated and he is no way concerned with crime. Such type of
retraction of confession given by accused no.2 needs to be kept in mind
while appreciating testimony of PW28,PW29 and PW32 so far as Ex.184
and 186 is concerned. Similarly accused no.3 after filing of the
chargesheet on 27/6/2012 from jail forwarded one letter Ex.3 to this Court
stating therein that his signatures were obtained on confessional statement
by threat and considering his contentions in application Ex.3 and for other
reasons mentioned in application, he be released on bail. As per said
application though it is in the nature of bail, as there some contentions
about retraction of confession while appreciating oral evidence of PW16,
PW25 and P26 in reference to confession of accused no.3 i.e. Ex.137 and
138 said retraction in the form of bail application needs to be kept in mind
while appreciating evidence in the nature of confession given by A3.
65. While considering aforesaid Ex.3 bail application forwarded by A3
from jail wherein he has made allegations of threat by police for giving
confession which is dated 27/6/2012 is after about 67 month of his
recording confession by DCP. So while considering such delayed retraction
that too while praying bail, the important fact that when he was produced
...56/
Judgment 56 MCOC Pl. Case No.2/12.
before C.M.M. for verification of confession as per mandatory provisions of
section 18 of MCOC Act, his statement is recorded by C.M.M. which is
attached with forwarding letter dated 9/10th November, 2011 which speaks
that before C.M.M. he has made no complaint about threat, inducement or
pressure by police officer for giving confession. On the contrary his
statement recorded by C.M.M. supports prosecution about his
voluntariness in giving confession.
66. During the course of argument Learned Advocate for accused nos.
1,2 and 3 in their respective arguments vehemently argued about
voluntariness and truthfulness of the confession. They also harpen about
non compliance of procedure of recording of confession by both DCP's.
Learned Advocate for A1 relied on judgment and order passed by Hon'ble
High Court in The State of Maharashtra V. Sachin G. Shetye and ors.
(Bombay High Court in Criminal Appeal no.191/2010 with Criminal
Appeal no.890/2009 with Criminal Application no.752/2013 in
Criminal Appeal no.890/2009 dated 25/4/2014); wherein Their
Lordships while dealing with part of evidence in respect of confession in
said case observed that confessional statements have been recorded
mechanically and not within spirit of section 18 of MCOC Act. It is also
observed that none of the DCPs who recorded confession statement have
made any genuine efforts to ascertain voluntariness of accused to make
the confession statement. It is also observed that there is no corroborative
evidence by prosecution to guarantee truthfulness of confession. There
were other lacunae in recording confession as observed by Their Lordship
...57/
Judgment 57 MCOC Pl. Case No.2/12.
by not following some clauses out of 6 of section 18 of MCOC Act.
While placing most of the reliance of the prosecution case on
confession of A2 and A3, Learned Spl. P.P. while rebutting argument of
defence that by asking similar 18 questions to both accused by different
DCPs according to him will not minimize probative value of confession. He
relied on Manjit Singh @ Mange V. CBI, through its S.P. (AIR 2011
Supreme Court 806), wherein it is held that merely because confessional
statement of both accused is more or less similar, it can not be said that
they are neither normal nor unnatural, which would vitiate probative value
of such confessional statement. He also relied on State of Maharashtra V.
Damu Gopinath Shinde ( AIR 2000 Supreme Court 1691) on the point
of delay in recording confession statement which can be no ground to
doubt voluntary confession. Aforesaid case is also relied by prosecution on
the point that if there is no explanation given by investigating officer that
how he knew that accused was willing to make confession to him is of no
consequences. Meaning thereby it is argument of prosecution that if
procedural aspect of recording confession is proved by the evidence of DCP
and prosecution is having other piece of evidence by way of corroboration
to evidence of DCP even if no explanation is given by DCP in his evidence
as to how he knew that accused was willing to make confession voluntarily,
does not affect evidential value of confession.
67. On perusal of confession statement partI of A3 Ex.137, it is seen
that DCP (PW16) ascertained voluntariness of A3 for giving confession by
...58/
Judgment 58 MCOC Pl. Case No.2/12.
putting 18 questions to find out as to whether there was pressure, threat or
promise if any from police officer. On perusal of all those questions, it is
seen that in his chamber free atmosphere was created for recording
confession statement and questions and answers were typed on computer
for compliance of clause(1) of section 18. There is mention about
signature and thumb impression of accused and certificate of his
satisfaction is given under his signature after explaining pros and cons of
giving confession to accused. Certificate also shows that sufficient care is
taken by DCP about not coming accused in contact with IO or other police
officer to create pressure, inducement or threat and care for keeping him
in separate cell is taken as mentioned in certificate. Both part I & II are
recorded in language of accused i.e. Marathi in which he was comfortable
in compliance of clause(2) of section 18. So far as confession statement
partII Ex.138 is concerned, again similar exercise of ascertaining
voluntariness by putting 11 questions to A3 is done by DCP and to the last
question his confirmation was taken by DCP while recording his actual
confession on computer. Actual confession partII which is about 8 pages
shows that it was written/typed on say of accused and as per information
given by him including his own endorsement that confession statement
was read over to him and found correct and is given by him under his
thumb impression. Again certificate which is required as per clause(3) of
section 18 is given by DCP to the actual confession which is recorded vide
Ex.138. Both confession statement part I & II sealed and envelopes were
forwarded to C.M.M. as per letter Ex.140 on same date i.e. 9/11/11 and
on next day as per above letter C.M.M. forwarded both sealed envelopes
...59/
Judgment 59 MCOC Pl. Case No.2/12.
alongwith statement of accused no.3 who had sticked up with his
confession to Spl. Judge under MCOC Act. Meaning thereby there is full
compliance of clause(4) & (5) so far as forwarding confession of accused
from DCP to C.M.M. is concerned.
68. After going through confessional statement part I & II of A2 Ex.
184 and 186, certificate given at the time of both confession, oral evidence
adduced by PW29 in proof of both confession statement partI & II
including actual confession recorded by DCP that of accused Nilesh dated
9/11/11 shows that like DCP (PW16) second DCP (PW29) followed
procedure of recording confession which is given in section 18 of MCOC
Act. A2 was also explained by DCP (PW29) about pros and cons of giving
confession including that it may be used against him and he may be
punished if confession is given. It is true that as per Ex.19 forwarding
letter of C.M.M. to Spl. judge MCOC Court statement of accused Nilesh
recorded by C.M.M. about his forcibly obtaining signature on statement
and that he has not given confession voluntarily is forwarded to this Court.
However such retraction of A2 is to be considered in reference to other
substantive and corroborative piece of evidence available on record. It is
also because on point of retracted confession Learned Advocate for A3
during the course of argument placed reliance on Parmanand Pegu V.
State of Assam, (2004 Supreme Court Case (Cri)2081), wherein it is
held that confession which was retracted by accused received no
corroboration from any other evidence and also contradicted medical
evidence as regarding to death of deceased which was an important aspect
...60/
Judgment 60 MCOC Pl. Case No.2/12.
of confession, in such case it would be unsafe to convict accused solely on
the basis of retracted confession. It is observed by Hon'ble Supreme Court
in supra Case that Court should also have regard to corroboration from
other evidence so as to assure of truth of confession. In my view argument
advanced by learned Advocate for A3 on the basis of such observation
made by Hon'ble Supreme Court case in case of retracted confession which
is also in our case, as there is firm confession of A2 which is verified by
C.M.M. discussed above, while appreciating retraction of confession of A2
and aforesaid confession of A2 and other corroborative and substantial
piece of evidence in our case in respect of both incident dated 1/10/11 and
14/10/11 needs to be considered as it is not only corroborative piece of
evidence but direct and substantive piece of evidence.
On the same point, Learned Advocate for A3 also relied on
Kashmira Singh V. State of Madhya Pradesh (1952MADLJ1754,
1952AIR(SC)0159), wherein it is held that proper way to approach a
case of this kind of confession is first to marshall the evidence against
accused excluding the confession altogether from consideration and see
whether, if it is believed, a conviction could safely be based on it. It is also
observed by Their Lordship in supra case that if there is evidence against
coaccused sufficient if believed to support his conviction, then the kind of
confession may be thrown into the scale as an additional reason for
believing that evidence. Learned Advocate for A1 also relied on State of
Rajasthan V. Ajit Singh and others [(2008) 1 Supreme Court Cases
(Cri)287], wherein it is observed that we can not stretch the language of
...61/
Judgment 61 MCOC Pl. Case No.2/12.
section so as to bring the confession of the coaccused within the fold of
admissibility. Such stretching of the language of law is not at all warranted
especially in the case of law which visits a person with serious penal
consequences. It is observed by Their Lordship while deciding supra case
that confession of coaccused can only be used as corroborative piece of
evidence that too against maker only.
There can be no two way thinking about observation and
finding given by Hon'ble Supreme Court and Hon'ble High Court in supra
cases about use of confession against coaccused. However section 18 of
MCOC Act clearly speaks that certain confession made to police officer
shall be admissible in the evidence of trial of such person or coaccused
abettor or conspirator, provided that coaccused, abettor/conspirator is
charged and tried in the same case together with the accused. Meaning
thereby provisions contend in section 18 makes the confession made by
one accused admissible during trial against coaccused if such coaccused is
charged and tried in same case. Of course other parameters like
voluntariness and truthfulness in confession of accused are always there.
While rebutting above stated argument in reply argument
Learned Spl.P.P. on point of retracted confession relied on Pyare Lal
Bhargava V. The State of Rajasthan (AIR 1963 Supreme Court 1094 (V
50 C 164)), wherein it is observed that if corroboration is there and
original statement is found voluntarily, retraction can be ignored as
retraction do not wipe out its evidential value. On same point prosecution
...62/
Judgment 62 MCOC Pl. Case No.2/12.
also relied on Periyasami S/o Duraisami Novanagar V. State (2004 AIR
SCW 2223), on the point of taking precaution by DCP to ascertain that
confession was voluntarily. Prosecution also relied on Abdulvahab
Abdulmajid Shaikh & Ors. V. State of Gujrat ( (2007) 4 Supreme Court
Cases 257) and submitted that if there is evidence before Court from DCP
stating therein that confession is recorded after complying with all
procedural formalities and this fact is incorporated in confessional
statement and before Magistrate accused has not stated about pressure and
third decree method used against him to extract confession, in such case
confession needs to be held voluntary, truthful and admissible in evidence.
If ratio laid down in aforesaid 3 cases on point of retracted confession is to
be appreciated to the confession of A2, though he has retracted confession
before CMM on same day, original statement that of confession before DCP
having seen proved by prosecution by complying all procedural formalities
as observed in supra case by Hon'ble Supreme Court and as there is
support to the case of prosecution by way of corroboration from confession
of A3 and other material evidence discussed in above para of the
judgment, so far as present case is concerned, I am of view that subsequent
retraction by A2 will not be fatal to the case of prosecution.
69. To ascertain voluntary nature of confession of both A2 & A3 on the
basis of above stated material on record both oral and documentary
evidence, I am of view that some submission made by Learned Advocate
for A1 and A3 so far as not following the procedure established for
recording confession is not as per actual position and exhibited documents
...63/
Judgment 63 MCOC Pl. Case No.2/12.
on record. Because nature of confessional statement part I & II of both
A2 & A3 referred in above paras in my opinion demonstrates voluntary
nature of confession given by A2 & A3. As A2 has retracted his
confession on the same day so there is little space to create doubt about his
voluntariness. However the retraction of confession again needs to be
appreciated on the basis of substantive and corroborative piece of evidence
available on record and proof of both incidents discussed in relevant para
of the judgment. It is also because A2 and A3 are main accused in
commission of first incident of firing and so far as second incident that of
recovery of fire arms and ammunition is concerned there is again role of
both A2 and A3 and in addition that of A1.
70. So to find out truthfulness in the confession given by accused it is
necessary to see what they have stated in their actual confession recorded
in partII so as to connect it with story of prosecution not only about both
incidents referred above but that of conspiracy which is alleged against
accused nos. 1 to 3. The gist of actual confession of A3 recorded at Ex.138
shows that one Akhil Lakadawala is known to him and in the month of
January, 2011 he received call of said Akhil Lakadawala on his mobile and
when he did not pickup said call, second time said Akhil by calling him
told that his brother Ejaj Lakadawala is ready to help him if required and
as A3 was in need of money agreed to work with Ejaj Lakadawala. His
further statement shows that thereafter many times he came in contact
with Ejaj Lakadawala who resides in abroad in respect of his work. There
is also reference in his statement that on say of Ejaj Lakadawala twice
...64/
Judgment 64 MCOC Pl. Case No.2/12.
pistols were provided to him for giving threat to some persons on account
of extortion money. In his statement he also stated role of A1 who
provided him SIM cards of different companies for purpose of using it. So
far as incident dated 1/10/11 he has given specific role of A1 who was
knowing site of firing which was shown to him and A2, and also provided
two pistols and cartridges for firing incident dated 1/10/11. His further
statement also shows that after firing incident A3 collected pistol which
was with A2 and handed over the same to A1 and for the purpose of
completing incident of firing A1 paid Rs.20,000/ to A2.
71. So far as actual confession statement of A2 is concerned he has
corroborated to confession statement of A3 regarding incident dated
1/10/11 including motorbike used in incident of his brother Mangesh and
accompanying with A3 to the spot of firing by driving motorbike and
aiding A3 in committing firing incident and thereafter amount of Rs.
20,000/ was paid to him by A1 through his friend Jignesh. While
ascertaining truth of confession given by both A2 and A3 substantive
piece of evidence from the mouth of injured Sohel Khan and eyewitness
Sohel Dalvi about incident shows that there is truthfulness in confession
given by both accused which corroborates to the case of prosecution. There
is also other corroborative piece of evidence which is discussed in relevant
paras of the judgment while deciding incident dated 1/10/11 and
14/10/11. So far as other corroboration about truthfulness in the
confession of A2 is concerned there is evidence of PW12 Jignesh Pandya
who deposed on oath that Riyazbhai (A1) had given him one envelope
...65/
Judgment 65 MCOC Pl. Case No.2/12.
containing Rs.20,000/ to hand over it to Annu (A2) near Hotel Ramdev
at Borivali. It may be noted that this PW12 Jignesh Pandy has also given
his statement U/sec. 164 of Cr.P.C. before C.M.M. which also speaks about
above stated fact. Oral evidence given by PW12 which supports the case
of prosecution in view of his statement U/s 164 of Cr.P.C. (Ex.125) gives
corroboration to confession and its truthfulness about payment of Rs.
20,000/ made by A1 to A2 as stated above.
72. In addition to all above discussed evidence there is one more piece
of evidence adduced by prosecution who is PW15 whose statement is also
recorded U/sex. 164 of Cr.P.C. before Magistrate. PW15 Mohd. Akram
Nirbhan is proprietor of Nirbhan Construction site of development at
Kamruddin street where firing incident dated 1/10/11 took place in which
Sohel Khan son of his tenant Majid Khan received bullet injury. Barring
information received by him about firing incident and his statement
recorded in J.J. Marg police station by calling him on 2/10/11 he also
stated before the Court that on 22/12/2011 he has given statement U/sec.
164 of Cr.P.C. before the M.M. which is filed on record by prosecution.
Apart from information received about incident dated 1/10/11 from one
Nabeel his employee of company on telephone, it is his version before the
Court that on next day of firing incident i.e. 2/10/11 he received call on
his mobile no.9819859787 from mobile no.9022362450 giving threat that
inspite of firing incident why he is not receiving his phone call and having
known firing incident on his construction site dated 1/10/11. It is his
specific version that said threat and message was mentioning sender name
...66/
Judgment 66 MCOC Pl. Case No.2/12.
as Ejaj Lakadawala and number 0015856414447. According to him
thereafter again from other mobile, caller Ejaj Lakadawala many times
repeatedly called him and demanded Rs.3 crores on account of his
construction business. Again on 3/10/2011 same demand is repeated by
caller Ejaj Lakadawala from him. It is his specific version that prior to
2025 days of firing incident he had received one call from unknown
number having beginning with +910000000000.
73. He was cross examined by defence on above stated threatening call
on his mobile by mentioning sender as Ejaj Lakadawala and demanding Rs.
3 crores and also on his statement recorded by police on 2/10/11 as he
had received threat before 2025 days of firing incident. He was cross
examined by defence by giving suggestion that after receiving threat on
such earlier dates why he did not lodge report to police station, to which
he replied that he did not feel necessary. He admitted that he heard name
of Ejaj Lakadawala as Bhai from electronic media. He also admitted that
even prior to 9/9/11 he used to receive such threatening call. It is also his
version that when he received first call of threat in the name of Ejaj
Lakadawala, he did not feel that it was threat of extortion. To the question
why he did not approach to police station immediately after firing incident,
he replied that he was scared at that time and also because he had scared
due to threatening SMS and was in state of shock. He denied suggestion
of defence that he extended threat of implicating some complainant on
account of property dispute in MCOC case and therefore, those threats
were from such complainant and not from unknown persons by name Ejaj
...67/
Judgment 67 MCOC Pl. Case No.2/12.
Lakadawala.
74. While appreciating above stated evidence of PW15 adduced before
the Court if one perused his statement U/sec. 164 of Cr.P.C. recorded
before Magistrate, it is seen that whatever stated by him before police in
his statement U/s 161 of Cr.P.C. and deposed before Court so far as
information received about firing incident, threatening calls prior to firing
incident and after incident under the name of Ejaj Lakadawala even by
mentioning number below the SMS, if read in reference to statement U/s
164 of Cr.P.C., it is seen that he gave corroboration to prosecution evidence
adduced in respect of firing incident from mouth of PW2 and PW27.
Similarly if we appreciate testimony of PW15 which is in consonance with
his statement U/s 164 of Cr.P.C. and with confession statement of A2 and
A3, it is seen that PW15 supports to the prosecution about theory of
threat of extortion from Ejaj Lakadawala. So far as finding corroboration
by PW15 to the confession of A2 and A3 about threat of extortion from
Ejaj Lakadawala and to find out truthfulness in confession of A2 and A3,
it can be said that evidence adduced by PW15 is additional piece of
corroboration for truthfulness of confession given by A2 and A3. Now
having seen above discussed evidence produced on record on behalf of
prosecution in the nature of confession of A2 and A3 and witness
examined in proof of same together with evidence of PW12 and 15
discussed above, to prove further link of prosecution evidence it has to say
that prosecution brought on record sufficient evidence about voluntariness
of confession of A3 so also that of A2 though his retraction is immediate
...68/
Judgment 68 MCOC Pl. Case No.2/12.
before C.M.M.. Now it is further necessary to make scrutiny of evidence
available on record in respect of electronic record in the nature of CDR and
Computer print out. Prosecution adduced oral as well as documentary
evidence in this regard and same is being discussed separately in next
group of evidence.
Group V
Evidence about Mobile & CDR print out.
75. While discussing evidence about incident dated 14/10/2011(in
group II) reference about evidence adduced by PW11, so far as seizure of
fire arms and ammunition is already made in the relevant para of the
judgment. So far as this group is concerned seizure of mobile having SIM
of Aircel Company having no.8898341106 from accused no.1 Riyaz and
from A3 about two mobiles having SIM of Aircel company having mobile
no. 8286582406 and 8286242768 needs to be discussed in connection
with oral evidence of Nodal officers PW5 to PW10 and PW31. It is
already held in relevant paras of the judgment that seizure of aforesaid
three mobiles from A1 and A3 is proved by prosecution vide Ex.112.
Barring aforesaid three mobiles and details of there seizure as discussed in
groupIV regarding confession of A2 and A3, so far as this group of
evidence is concerned in confession of A2 there is reference of mobile no.
9768784412 and in confession of A3 there is reference of in all five
mobile numbers. Those are 9987328649 ( in the name of father in law)
mobile no.9125170495 (Uninor company seized from Mira Road), third
...69/
Judgment 69 MCOC Pl. Case No.2/12.
SIM cards of Reliance company no.8080863533, 7666293682,
9022462350. Barring having reference all above stated five SIM cards time
to time used by A3, as per his confession there is also reference of mobile
number of Ejaj Lakadawala from abroad on which there are out going and
incoming calls as per confession of A3. Those numbers are 16503604678,
16467367532 and 1585641447. Further link up evidence is through
mobile no.9819859787 that of PW15 Akram Nirbhan to whom there were
threatening calls from both A3 and Ejaj Lakadawala. As per PW15's
statement U/sec.164 of Cr.P.C. and evidence before this Court on his
mobile there are in coming and out going calls from different numbers and
those are 910000000000, 34340000000000, 0015856414447 and
34444256845. In addition to above stated mobile to prove connection
amongst A1,A3, PW15 and Ejaj Lakadawala there is evidence of PW12
who has also given statement U/sec. 164 of Cr.P.C. (Ex.125) before
Magistrate by mentioning his mobile no.9324030307 and mobile number
of A1 Riyaz as 9898341106.
76. To prove link and contact in between above stated mobiles mostly in
between A3 and Ejaj Lakadawala at one hand and Akram Nirbhan(PW15)
on other hand about threat of extortion at other side, there is evidence of
above stated Nodal Officers of different companies namely Airtel, Aircel,
Vodafone, Idea, Reliance, Uninor, and Loop Companies. Nodal Officers in
their respective evidence by giving oral testimony placed material on
record about name of persons in whose name above referred SIM cards are
registered in their companies. They also produced on record customer
...70/
Judgment 70 MCOC Pl. Case No.2/12.
application forms having photographs of the customers to whom respective
SIM cards were sold either by their dealer or subdealer. All those
documentary proof is placed on record by prosecution right from Ex.64 to
108 including print out of call details of incoming and out going calls from
above referred mobiles. Admittedly except mobile no.9819859787 and its
print out (Ex.90) as per evidence of PW8 in the name of PW15 Akram
Nirbhan, most of the mobiles are in the name of other persons and not in
the name of either accused.
77. It has come on record in their respective evidence that as per request
and application submitted by ACP Vatkar, their companies have issued
relevant CDR for the period from 1/1/2011 to 30/11/11 and contents of
computer print out are taken out from their system which is maintained as
per rules and accordingly certificates are issued by them while supplying
said information including documents about original subscribers
application forms etc. By examining aforesaid Nodal officers prosecution
not only produced on record CDR and computer print out, but also original
customer application forms of most of those mobile holders and documents
such as address and residential proof on the basis of which company issued
SIM cards to them. Nodal officers while adducing their evidence gave
specific evidence about certificate issued to police officer ACP Vatkar
(PW36) as per requirement of section 65(B) of Evidence Act. Certificate
under Evidence Act issued by all Nodal officers got proved by prosecution
by giving respective exhibits in their evidence which are included in
exhibits right from Ex.64 to 109.
...71/
Judgment 71 MCOC Pl. Case No.2/12.
78. So far as part of cross examination is concerned defence has brought
on record some material to say that they were asked by police about
location of calls and location of numbers like 000 +401,501 +500 which
can be traced out. They denied suggestion that calls made from Internet
can not be located in their system. Most of them denied most of the
suggestions of the defence. So far as copies of customer application forms,
it is evidence of Nodal officers that those are scanned and copies are
submitted under their certificate. Some had brought original customer
application forms while adducing evidence to prove such certified copies
issued by them.
79. During the course of argument Learned Advocate for A1 to A3
submitted that CDR's no where demonstrate fact that phones calls were
made by Ejaj Lakadawala before incident and CDR produced on record
through Nodal officer even though proved and exhibited is not useful to
prove conspiracy. It is also argument of defence that both IOs have not
deposed above conspiracy or CDR. It is also their argument that none of
the mobile is in the name of accused. No interception is proved by
prosecution. It is also argument on behalf of the defence that there is no
investigation by police about incoming and out going calls from mobiles
seized. So far as computer print out and CDR are concerned it is their say
that such nature of documentary evidence will not help prosecution to
prove conspiracy.
80. Learned Advocate for A1 vehemently argued about non production
...72/
Judgment 72 MCOC Pl. Case No.2/12.
of certificate by Nodal Officers in proving contents of CDR, computer print
out as per requirement of section 65(B) of Evidence Act. Learned Advocate
for A1 on same point also relied on P.V. Anvar V. Basheer & others (CDJ
2014 SC 790), wherein it is held that in absence of certificate in terms of
section 65(B), such computer print out can not be admitted in evidence as
it is secondary evidence pertaining to electronic record. While appreciating
such submission on behalf of defence, if one peruse computer print out of
above referred mobiles, it can be said that not only customer application
forms but CDR and computer print out is proved by prosecution by
adducing oral evidence of PW5 to PW10 and PW31 but mobile numbers
given by A1 and A3 in their confession and PW12 and PW15 in their
statement U/sec. 164 of Cr.P.C. So far as argument advanced by Learned
Advocate for accused that IO has not deposed about such electronic record
though produced on record though Nodal Officers. However such is not
fact. So far as PW35 is concerned, in his evidence he specifically deposed
not only about mobile seized but also about companies of SIM cards and
statement of Nodal officers recorded during the course of investigation
including certificates issued by Nodal officers as per section 65(B) of
Evidence Act, (reference to para 7 of PW35). Not only that IInd IO PW36
in his evidence at para no.6 specifically deposed that on 15/12/2011 as
per his instruction PW35 recorded statement of some Nodal Officers.
Similarly in para no.9 he has specifically given evidence about information
given by Nodal Officers by providing CDR about location of the mobile of
Akram Nirbhan (PW15) and Ejaj Lakadawala and that of A3 Prashant
Rao. In para no.16, PW36 specifically denied suggestion of defence that
...73/
Judgment 73 MCOC Pl. Case No.2/12.
CDR of mobile and SIM cards has no concern with accused.
81. By above referred oral evidence of Nodal officers as it is
accompanied by certificate U/sec. 65(B) of the Evidence Act mentioning
specific contents that electronic record and print out i.e. CDR and CAF of
mobile have been retrieved from computer which was in possession of
each Nodal officer, it has to say that there is direct oral evidence before the
Court in proof of CDR and CAF which is produced on record by
prosecution in two volumes i.e. partI and partII. By their respective
evidence prosecution exhibited computer print out of each mobile about
incoming and out going calls in between PW15 Akram Nirbhan Ejaj
Lakadawala and A1, A3. And therefore computer print outs which are in
the nature of secondary evidence which are proved as per certificate issued
by each Nodal Officers by their oral evidence will have to be read in the
evidence.
82. On careful scrutiny of computer print out Ex.196 it is seen that on
2/10/11 at about 12.16 pm. there was call from mobile of A3 having no.
9125170495 to Ejaj Lakadawala on his number 0015856414447(Page 81).
It may be noted that this call is of second day of firing incident i.e.
1/10/11. Another call at page 85 is of dated 8/10/11. As per Ex.109 from
another number of A3 i.e. 9987328649 there are two calls on mobile of
Ejaj Lakadawala having number 16503604678 on 19/7/11, second call
was on 20/7/11 and third on 26/7/11. Next three calls were on 27/7/11.
On 2/8/11 there are again two calls and on 10/8/11 again 2 calls. As per
...74/
Judgment 74 MCOC Pl. Case No.2/12.
Ex.90 on 9th September 2011, there was one call from Ejaj Lakadawala
having number 0000000000 and mobile number is 9819859787 of PW15
Akram Nirbhan. From same mobile there was another call on same mobile
of PW15 Akram Nirbhan on 15th September, 2011. As per page 85 of Ex.90
there was call from Ejaj Lakadawala from his mobile number
34440000000000 on aforesaid mobile of PW15 Akram Nirbhan on
2/10/11 at 13.66 p.m.. And from PW15 Akram Nirbhan from his aforesaid
mobile number 9819815787 there was call to Ejaj Lakadawala at 21.32
p.m. on 2/10/11 on his mobile number 0015856414447. There is another
call on 3/10/11 from Akram Nirbhan (PW15) from his aforesaid mobile
number on same mobile of Ejaj Lakadawala at 23.05 p.m. Ex.97
(Page113) shows that on 1/10/11 at 19.43 p.m., there was phone call
from 7666293682 on mobile of Ejaj Lakadawala 15467367532 and
location of said call is (as per last column) was Mira Desai Road, Andheri.
On same date 1/10/11 at about 20.26 p.m. there was another call from
A3 Prashant Rao from his mobile number 7666293682 on above referred
mobile of Ejaj Lakadawala 16467367532. As far as computer print out Ex.
101 is concerned A3 Prashant Rao from his mobile number 9819815787
made a phone call to PW15 Akram Nirbhan on his above referred mobile
number 9819815787. EMEI number of his mobile was 358251042534900.
On same date 3 calls were made by A3 Prashant Rao on aforesaid mobile
of PW15 Akram Nirbha around 12 p.m. from Mira Road location. It may
be noted that as per memorandum and seizure panchanama Ex.52 and 53
mobile having above referred EMI is seized from wife of accused A3 from
his house having location Mira Road. Again as per Ex.97 as per entry dated
...75/
Judgment 75 MCOC Pl. Case No.2/12.
24/9/11 at 17.56 p.m. location of mobile of A3 7666293682 and that of
A1 Riyaz of mobile number 8898341106 was near J.J. Hospital fly over
from which site they made call to each other, date prior to incident date of
firing.
83. Having gone through the above discussed relevant entries from
computer print outs which are exhibited documents in respect of which
there is also direct evidence from mouth of Nodal Officers and two
investigating officers, it has to say that prior to firing incident there were
phone calls to PW15 Akram Nirbhan from different Internet mobile calls
and also prior to and after incident as per above referred incoming and out
going calls. There was also talk in between A3 and Ejaj Lakadawala
during aforesaid period as per computer print out. After going through the
relevant dates and time of incoming and outgoing calls from mobiles of
PW15, A3 and Ejaj Lakadawala, it is seen that prior to incident of firing
which is dated 1/10/11 and after date of firing i.e. 2/10/11 and 3/10/11,
there was constant communication in between A3 and Ejaj Lakadawala.
So far as oral evidence given by PW15 specifically about threatening calls
received by him on 2/10/11 and before 1520 days of firing incident from
A3 is concerned, there is evidence in the nature of call details, from
location of mobiles and phone calls on behalf of A3 from his Mira Road
residence to PW15 Akram Nirbhan on 2/10/11 goes to show that
conspiracy was hatched in between A3 and Ejaj Lakadawala by giving
threatening calls to PW15 both prior to firing incident and after incident.
Ex.197 which is having location of J.J. Fly over area dated 24/9/11 shows
...76/
Judgment 76 MCOC Pl. Case No.2/12.
that as per confession given by A3, reki of spot of incident of firing was
done by A1 and A3 which is much prior to date of incident i.e. 1/10/11.
Five mobile numbers which are given by A3 in his confession and 3
mobile numbers of Ejaj Lakadawala given by him connects through above
discussed CDR and computer print outs on relevant dates discussed above.
There is additional piece of evidence by way of oral evidence of PW15
which is also in consonance with statement U/sec. 164 of Cr.P.C. so far as
mobile number of Ejaj Lakadawala from whom he received threatening
calls that of demand of extortion amount and in reply phone calls given by
him to Ejaj Lakadawala on 2/10/11 second day of incident as per CDR
and computer print out discussed in above para in the judgment.
84. So on the basis of above stated oral and documentary evidence
about print out and CDR, it has to say that prosecution proved the fact that
A1 to A3 were in constant touch with each other prior to incident dated
1/10/11 and after incident till their arrest in trap dated 14/10/11. There
were calls between A3 and Ejaj Lakadawala at one hand and PW15
Akram Nirbhan on other hand and during aforesaid period there was
demand of extortion and threat from A3 and Ejaj Lakadawala to PW15.
Above discussed evidence of call details, if appreciated in the context with
other corroborative evidence available on record, it has to say that so far as
hatching of conspiracy for commission of incident dated 1/10/11 in
between leader of gang Ejaj Lakadawala and his sharp shooter A3 at one
hand and PW15 Akram Nirbhan at another hand including role of aiding
and abetting by of A1 and A2, evidence available on record in respect of
...77/
Judgment 77 MCOC Pl. Case No.2/12.
incident dated 14/10/11 and called details as per CDR and print outs
supports the prosecution case to prove conspiracy.
85. On point of conspiracy Learned Spl.P.P. by relaying on State
Through Superintendent of Police, CBI/SIT V. Nalini & Ors ((1999) 5
Supreme Court Cases 253) submitted that in case of conspiracy, there
may be kind of umbrellaspoke enrolment, where a single person at the
centre does the enrolling and all the other members are unknown to each
other, though they know that there are to be other members. These are
theories and in the practice, it may be difficult to tell which conspiracy in a
particular case calls into which category. It may however, even overlap.
But then there has to be present mutual interest. Persons may be members
of single conspiracy even though each is ignorant of the identity of many
others who may have diverse roles to play. It is not a part of the crime of
conspiracy that all the conspirators need to agree to play the same or an
active role. From above observation regarding conspiracy from supra case,
it is say of prosecution that though A1 and A2 have not played active role
in firing of incident, by their act of abetting and aiding to accused no.3 and
ultimately to leader of gangster Ejaj Lakadawala conspiracy towards
commission of the offence in the present case is proved by prosecution.
While rebutting on aforesaid argument of prosecution, Learned
Advocate for A1 by relaying on Dipti Prakash Banerjee V. Satyendra
Nath Bose National Centre for Bais Sciences, Calcutta & Ors. ((1999) 3
Supreme Court Cases 60) submitted that in case of criminal conspiracy
...78/
Judgment 78 MCOC Pl. Case No.2/12.
U/sec. 120(B) of I.P.C., prosecution must establish a connection between
alleged crime and act done pursuant to the same conspiracy. It is observed
by Hon'ble Supreme Court, in this case that it is no doubt true that it is
difficult to establish conspiracy by direct evidence and therefore, from
established fact an inference could be drawn but there must be some
material from which it would be reasonable to establish a connection
between the alleged conspiracy and the act done pursuant to the said
conspiracy. While applying such observation and finding of Hon'ble
Supreme Court to the fact of our case, it may be stated that in the present
case, there is direct evidence so far as firing incident is concerned.
Pursuant to the firing incident, there is recovery of weapons, fire arms and
bullet from injury of injured. Together with these two important facts,
there is evidence in the form of confessional statement. So on the basis of
such established fact, it has to say that with connecting evidence between
alleged conspiracy (which is proved by prosecution with the help of CDR),
act done pursuant to the said conspiracy is proved in the present case. By
going one step ahead so far as case in hand is concerned it can be said that
conspiracy is established by prosecution with the help of direct evidence
discussed above.
Group VI
Evidence of investigating officers.
86. So far as FIR of incident dated 1/10/11 Ex.46 & 46A is concerned,
there is evidence of PW34 ASI Bondre who was attached to J.J. Marg
...79/
Judgment 79 MCOC Pl. Case No.2/12.
police station and took FIR of injured Sohel Khan by registering CR.NO.
138/11 U/sec.307, r/w 34 of IPC and 3/25,27 of Arms Act. By his
evidence station diary entry of said FIR Ex.203 is also placed on record.
Admittedly Ex.46 was in the name of two unknown persons about firing
incident. Oral evidence of PW34 is corroborated by 1st IO PW35 PI
Dhanawade by deposing on oath that on 1/10/11 CR no.138/11 was
registered at J.J.Marg police station. As regard to FIR Ex.46 about firing
incident and its proof there is detailed discussion in relevant paras of the
judgment. As per evidence of PW33 Bhosale who was working as duty
officer at Nagpada police station on 14/10/11, Crime Branch UnitIII
officer Mr. Chavan and others had come to Nagpada police station and
gave information by ASI Chalke about seizure of fire arms from A1 to A3.
He registered FIR as per statement of ASI Chalke as LAC no.2220/11
U/sec. 3/25,27 of Arms act. As true copy of FIR was filed on record, by his
evidence prosecution produced on record station diary entry of LAC no.
2220/11 vide Ex.201 about registration of FIR and seizure of fire arms
from accused no.1 to 3 as per LAC no.2220/11. Oral testimony of PW33
is corroborated by PW35. So far as FIR lodged by ASI Chalke as per LAC
no.2220/11 stated above is concerned, it is evidence of PW35 that further
investigation of accused and seized arms as per directions of Additional
Commissioner was transferred from LAC no.2220/11 to LAC no.35/11 of
DCB CID and API Tawade of UnitIII filed chargesheet of LAC no.35/11
who was also investigating officer.
87. PW28 API Tawade by giving corroboration to PW33 and 35 in his
...80/
Judgment 80 MCOC Pl. Case No.2/12.
evidence in para no.8 deposed that after seizure and preparing
panchanama, accused no.1 to 3 were brought to Nagpada police station.
ASI Chalke lodged FIR and after registration of FIR, special LAC no.35/11
was registered at Crime Branch detection Branch. In cross examination, he
stated that he himself made station diary entry of special LAC no.35/11.
So far as registration of LAC no.2220/11 is concerned, it is version of
PW35 in cross examination that after panchanama Ex.112, he had gone to
Nagpada police station for registration of LAC no.2220/11. It is his further
version that parallel investigation in CR registered of J.J. Marg police
station and DCB CID UnitIII was going on after incident dated 14/10/11.
He also admitted that he was not knowing about involvement of accused in
CR No.138/11 till 19/10/11 from their arrest as matter was under parallel
investigation in both LACs.
88. After going through above stated evidence adduced by PW28,33,
34,35 and 36, so far as investigation part is concerned, they produced on
record oral as well as documentary evidence to say that LAC no.2220/11
registered at J.J. Marg police station was being conducted alongwith CR
no.138/11 which was initially registered at DCB CID at special LAC no.
35/11. It is admitted fact that after transfer of CR No.138/11 to DCB CID,
it was registered at CR no.86/11 after invoking Sec. 3(i)3(ii)3(iv) of
MCOC Act. So far as evidence available on record in proof of incident
dated 1/10/11 is concerned, already discussion is made in relevant paras
of the judgment including evidence of PW34 discussed above. So also as
regard to incident dated 14/10/11, discussion is also made in relevant
...81/
Judgment 81 MCOC Pl. Case No.2/12.
paras of the judgment about evidence of PW28 and also that of PW35. So
far as further evidence of PW35 is concerned, he gave evidence about
letter correspondence vide Ex.208 to 210 about transfer of investigation
papers from J.J. Marg police station to DCB CID and also about handing
over investigation of CR no.138/11 to him by Sr.PI. Marde. By adducing
evidence about interrogation made with A1 to A3 about seized fire arms,
he completed chain of evidence by giving corroboration to most of the
prosecution witnesses examined in proof of documentary evidence. He not
only gave evidence about memorandum and seizure panchanama vide Ex.
52 and 53 about mobile and SIM card seized from house of A3 from Mira
Gao but also gave corroboration about seizure, other mobiles and SIM card
from A1 as well as accused no.5. By his evidence, prosecution produced
on record print out and CDR which are proved by evidence of PW5 to 10
and 31. According to him, he recorded statement of all Nodal officers
including supplementary statement of some of them, as per evidence in
para no.7 to 10 of his evidence.
89. In his cross examination defence has brought on record some lapses
and lacunae on part of prosecution about spot of incident dated 14/10/11
and how suspect came on spot, about nature of seizure including packing
material used at the time of seizure and how they proceeded to effect trap.
He admitted that after seizure of fire arms from accused, those were given
in possession of API Tawade(PW28). He admitted that personal search of
panch witnesses were taken and so also their personal search was given to
panch witnesses and it is also mentioned in panchanama Ex.112. He
...82/
Judgment 82 MCOC Pl. Case No.2/12.
admitted that signature of either accused was not obtained in
panchanama Ex.112. He was also cross examined about log book entry and
vehicle used in incident dated 14/10/11.
90. So far as oral evidence of PW36 IInd IO Yashwant Vatkar is
concerned, according to him, on 1/11/11 investigation came to him as per
order of Joint Commissioner vide Ex.219 after invoking MCOC Act from
PW35 PI Dhanawade. His evidence is mostly on interrogation made with
accused no.2 and 3 and their desire and voluntariness in giving confession.
So far as confession given by A2 and A3 is concerned, by his evidence
prosecution placed on record correspondence made by him to DCP ZoneIII
and IV vide Ex.220,224 which also includes letter Ex.223 and 224
demanding copies of confession statement from both DCPs. According to
him, after going through confession of both accused, he revealed that
Prashant Rao was in constant touch with Ejaj Lakadawala head of Crime
Syndicate and by way of conspiracy committed incident dated 1/10/11.
Therefore, on the basis of interrogation with A3, involvement of accused
Zakariya Khan @ Jiki was revealed. He also gave evidence of letter
correspondence with SEO for T.I. Parade Ex.226. In his further evidence,
he produced on record certified copies of chargesheets which are pending
against Ejaj Lakadawala and accused Prashant Rao prior to both incident,
about approval given by Commissioner of Police and sanction to prosecute
accused under MCOC Act. In cross examination he admitted that there is
no chargesheet filed against accused in between and no documentary
evidence is collected in respect of mobile of international call. He also
...83/
Judgment 83 MCOC Pl. Case No.2/12.
admitted that there is no documents about point of telecommunication
alleged against accused Ejaj Lakadawala. In his further evidence, it is his
say that permission of Magistrate is not obtained for voluntarily recording
confession of accused and so far as possession of arms by accused nos. 1 to
3 in incident dated 14/10/11 he submitted chargesheet before M.M.37th
Court is filed. Furthermore, he admitted that proposal of prior approval
was not filed with chargesheet. He admitted that in both chargesheet Ex.
229 and 230 Ejaj Lakadawala is shown as wanted accused. If one perused
chief as well as cross examination of two main investigating officer PW35
and 36 together with PW28,33 & 34 alongwith documentary evidence
produced by them on record, it has to say that by their evidence
prosecution proved chain of evidence right from lodging for FIR Ex.46 and
LAC no.2220/11 (Ex.201) till prosecuting accused nos. 1 to 5 by way of
chargesheet before Special Court. Having seen all above discussed
evidence, then remains important aspect about nature of above discussed
evidence and proof required under MCOC Act, Arms Act and IPC to prove
charges levelled against accused nos. 1 to 5.
91. So far as confession of A2 and A3 Ex.184186 and Ex.137138 is
concerned, there is evidence of DCP (PW16) and DCP (PW29). As per
evidence of PW36, as per order of Joint Commissioner of Police, above
DCPs ZoneIII & IV were requested to record confession of both accused
and as per letter correspondence discussed in relevant para of the
judgment on 8 and 9/11/11 and aforesaid two DCPS recoded their
confession. It is evidence of PW36 that as per letter Ex.219, Joint C.P.
...84/
Judgment 84 MCOC Pl. Case No.2/12.
granted approval U/sec. 23(1)(a) of MCOC Act and as per said approval,
permission was granted to apply provisions to MCOC Act and to
investigate the case with further directions that PW36 shall obtain
sanction from Commissioner of Police to file chargesheet. It is also his
evidence that after completing investigation, he forwarded investigating
papers for obtaining sanction under MCOC alongwith two certified copies
of chargesheets filed against accused Ejaj Lakadawala as head of
Syndicate and other members vide Ex.229 and 230 and Magistrate has
taken cognizance of those chargesheets. According to him, after
completing investigation, he submitted proposal to Commissioner of Police
through Joint C.P. vide Ex.193. He made discussion with Commissioner of
Police by submitting all necessary documents and ultimately as per
sanction granted U/sec. 3(i)(ii),3(2),3(4) of MCOC Act, chargesheeet is
filed against in all eight accused including three wanted accused.
92. By aforesaid evidence of PW36 prosecution proved certified copies
of two chargesheets Ex.229 and 230 in which Ejaj Lakadawala is accused
in CR no.27/05 of Versova police station of offence U/sec. 387,307,120(B)
of IPC, 3/25,27 of Arms Act and 3(i)(ii),3(2),3(4)3(5) of MCOC Act. Ex.
230 certified copy of chargesheet filed before 37th ACMM Court of CR no.
205/04 of Juhu police station for the offences U/sex. 387 r/w 34 of IPC
against Ejaj Lakadawala and others including Mohd. Jafar one of the
accused of the present case. On the basis of previously instituted two
chargesheets Ex.229 and 230 filed on record in support of oral evidence of
PW36 and when cognizance was taken by Magistrate of 37th ACMM Court
...85/
Judgment 85 MCOC Pl. Case No.2/12.
and another case which is under MCOC Act of which cognizance is taken
by Special Court, it has to say that in compliance with Sec.2(d) of MCOC
Act, sufficient material is brought on record by prosecution so far as
continuing lawful activity by head of Organize Crime Syndicate or on his
behalf members prior to commission of present incident is concerned.
PW30 Anup Patnaik who had accorded sanction Ex.193 in his evidence at
Ex.192 deposed that ACP Yashwant Vatkar was investigating officer of CR
No.86/11 under MCOC Act. He tabled all investigation papers before him
for according sanction. On perusal of papers and discussion with him and
other Sr. officers, he was satisfied to accord sanction to prosecute arrested
as well as wanted accused and others (Ex.193). He admitted in cross
examination that confession given by A2 and A3 was not part of sanction
order and there is nowhere mention in order that he perused confession
statement of accused. To said suggestion, it is his say that he did not feel
necessary to make mention about confessional statement perused but his
sanctioned order is after perusal of confession statement of accused.
93. During the course of argument, Learned Advocate for A1 to A3
submitted that at the time of granting approval, copies of two chargesheets
were not before Commissioner of Police. To that effect, there is admission
given by PW36 in his cross examination that there is no reference about
details of chargesheet in approval Ex.219. He also admitted that prior to
approval, proposal was sent by Sr.PI. Marde through him which is not filed
with chargesheet. Learned Advocate for A1 and A3 during the course of
argument vehemently argued about evidence required to prove acts which
...86/
Judgment 86 MCOC Pl. Case No.2/12.
are mentioned in sec. 2(d) of MCOC Act i.e. continuing unlawful activity,
2(e) Organized Crime and 2(f) Organized Crime Syndicate. On the basis
definition of aforesaid three provisions and requirement of section 3(i)(ii),
3(2),3(4) of MCOC Act, it is argument on behalf of denfence that there
must be evidence in respect of gaining pecuniary benefit by Organized
Crime Syndicate, its head or on his behalf any member such Syndicate
which may be group of two or more acting either singular or collectively.
According to the defence, evidence which is required to be proved all such
acts as per section 3 of the Act is completely missing in the prosecution
case.
94. Such argument of defence is countered by Spl. P.P. by submitting the
argument that for the purpose of proving continuing Lawful activities by
head of Syndicate namely Ejaj Lakadawala before period of 10 years of
incident, chargesheet Ex.229 and 230 cognizance of which is already taken
by MCOC Court and 37th ACMM Court together with oral evidence of
PW30 and 36 is sufficient compliance of section 2(d) of the Act.
According to him as per confession of A2 and 3, evidence in the nature of
computer print out and CDR which are proved by Nodal officers together
with evidence of PW15 and subsequently commission of incident of firing
on PW2 goes to show that head of Organized Crime Syndicate Ejaj
Lakadawala of his own and through A3 gave threat of extortion to PW15
and on his failure to comply demand through member of his Syndicate A3
with aid of A2 did act of firing. It is also his submission that subsequent
recovery of fire arms and other related evidence which proved both
...87/
Judgment 87 MCOC Pl. Case No.2/12.
incident supports prosecution in proving requirement of 2(e) and 2(f)of
the Act. Learned Spl.P.P. by relaying on Mohd. Farooq Abdul Gafur & Anr.
V. State of Maharashtra (2010 AIR SCW 2574) submitted that conviction
can be based solely on the basis of confessional statement of main accused
itself. Similarly, conviction may be awarded on the basis of confessional
statement of coaccused which could be used and relied upon for purpose
of conviction. Going ahead on the basis of supra citation which is under
MCOC Act itself, it is his say that confessional statement of coaccused is
admissible as a piece of substantive evidence. Furthermore, according to
him, in present case, there is not only confession of accused no.3 but also
confession of coaccused A2 which supports case of prosecution in proving
initial ingredient of section 2(e) of the Act namely unlawful activity by
Crime Syndicate with object of gaining pecuniary benefit. According to
him, in confession of both accused, after completing incident of firing, Rs.
20,000/ was paid by accused no.1 to accused no.2 through his friend
Jignesh, so also Rs.50,000/paid by wanted accused Chacha to A3 as per
confession.
95. As per argument advanced by Spl.P.P. conspiracy amongst accused
no.1,2 and 3 for committing incident of firing is as per requirement of
section 120(B) of IPC, definition of which is given in sec. 120(A) of IPC. As
per observation made by Hon'ble Supreme Court in already cited case
State through superintendent of police,CBI/SIT V. Nalini and Ors., it is
not a part of crime of conspiracy that all the conspirators need to agree to
play the same or an active role. On the basis of such observation made by
...88/
Judgment 88 MCOC Pl. Case No.2/12.
Hon'ble Supreme Court regarding offence of criminal conspiracy, according
to him, in the present case act of criminal conspiracy amongst accused no.
1 to 3 is to be derived not only from confession of A2 and A3 but also
from other circumstances that of incident dated 1/10/11, 14/10/11 and
evidence produced by prosecution in proof of both needs to be taken into
consideration. Ultimately, it is his say that conspiracy which was done
amongst accused nos. 1 to 3 was for an behalf of head of Syndicate Ejaj
Lakadawala which ultimately culminated by over act of incident of firing
which is substantiated by way of recovery of fire arms as per second
incident dated 14/10/11.
Findings
96. From all above discussed submissions made in the argument on
behalf of Learned Advocate for A1 to A3 as well as Learned Spl P.P. and
after going through oral evidence of all relevant prosecution witnesses
coupled with the documentary evidence proved by prosecution in the
present case, I came to the conclusion that offences of conspiracy U/sec.
120(B) of IPC is proved by prosecution against accused nos.1,2 and 3.
Similarly as discussed in relevant paras of the judgment about both
incident dated 1/10/11 and 14/10/11, it has to hold that both incidents
are proved by prosecution with clinching evidence, most specifically
incident of firing dated 1/10/11 against accused no.2 and 3 and possession
of fire arms, cartridges and other articles recovered from A1 to A3 as per
panchanama Ex.112. Thereafter next question is which clauses of section
...89/
Judgment 89 MCOC Pl. Case No.2/12.
3 of MCOC Act can be said as proved by prosecution against which accused
and as per charge Ex.31. So also evidence available on record in proof of
charge under Arms act in reference to recovery of fire arms from accused
nos. 1 to 3 and its connection with incident of firing, of course within
meaning of criminal conspiracy.
97. As per evidence of PW20, she gave sanction order Ex.158. After
going through FIR, panchanama, FSL report and request letter issued by
ACP D1 South, Crime Branch and after applying mind, she found prima
facie case from material on record to accord sanction to prosecute accused
Prashant Rao, who was found in possession of country made pistol and
cartridges without requisite license. By her evidence, prosecution proved
sanction to prosecute A3 U/sec. 3/25,27 of Arms act. Next connecting
evidence brought on record by prosecution is regarding unauthorized
possession of Arms by A1 to A3 and contravention of section 37 of
Bombay Police Act. By the evidence of PW35 prosecution produced on
record station diary extract about promulgation of order passed by Deputy
Commissioner of Police dated 22/9/11 alongwith gazette notification
which is filed on record in the evidence of PW35 collectively marked as
Ex.214. Station diary entry shows that order passed by Deputy
Commissioner of Police about unauthorized possession of Arms U/sec. 37
of Bombay Police Act is promulgated in area of incident on 22/9/11. This
oral evidence of PW20 and PW35 is to be appreciated in reference to
above referred sanction order Ex.158 and station diary entry about
promulgation of order dated 22/9/11 U/sec. 37 of Bombay Police Act in
...90/
Judgment 90 MCOC Pl. Case No.2/12.
proof of both charges under Arms Act and Bombay Police Act.
98. During the course of argument, Learned Advocates for A1 and A3
on the basis of charge U/sec. 3 r/w 25 of Arms Act submitted that Ex.158
is in respect of sanction to prosecute against A3 only. According to them
sanction accorded U/sec. 39 of Arms Act speaks that no prosecution shall
be instituted against any person in respect of offences U/sec. 3 without
previous sanction of District Magistrate. Charge Ex.31 also shows that
only accused no.3 is charged U/sec. 3 r/w 25 of Arms Act. It is true that as
per story of prosecution accused no.2 and 3 were involved in firing
incident and found in possession of fire arms and cartridges. As per
subsequent incident dated 14/10/11 all three were found in possession of
fire arms and cartridges. It is also true that as per oral as well as
documentary evidence produced on record on behalf of prosecution
discussed in relevant paras of the judgment accused no.3 used fire arm
pistol in the incident of firing. Though charge framed under Arms Act
covers only accused no.3 as there is mention in the charge “that rest of the
accused and wanted accused did possess fire arms and ammunition like
pistol cartridges”, it is fact that as per section 39 previous sanction is only
against accused no.3 as per Ex.158. Learned Advocate for A3 has drawn
my attention towards initial ingredient of section 3 and 5 which are
punishable by way of section 25 of Arms Act. In absence of specific charge
framed against accused no.1 and 2 under the Arms Act, it has to say that
so far as accused no.1 and 2 is concerned though chargesheet is also filed
U/sec. 27 of Arms Act and though prosecution brought on record evidence
...91/
Judgment 91 MCOC Pl. Case No.2/12.
against them under Arms Act in absence of charge said evidence can not be
appreciated so far as role of A1 and A2 is concerned.
99. On the basis of discussion of oral and documentary evidence made
in group I to VI in above paras of the judgment including argument
advanced by Learned Spl. P.P. and Learned Advocate for A1 to A5, while
giving finding to point nos. 1 to 8 it has to say that
confession given by A2 and A3 is proved by prosecution on
the basis of oral evidence of PW16,25,26 and PW28,29 and 30. Approval
to investigate Ex.219 and sanction to prosecute Ex.193 under MCOC Act
together with previously instituted two chargesheets against head of Crime
Syndicate or its member is proved by prosecution by filing two
chargesheets Ex.229 and Ex.230 in the evidence of PW30,35 and 36.
On the basis of confession of A3 and oral evidence of PW15
and PW12 there is sufficient evidence on record to say that act of firing
was done by A2 and A3 and it was nothing but unlawful activity by
member of Organized Crime Syndicate under the head of Ejaj Lakadawala
with object of gaining pecuniary benefit. While giving affirmative findings
in compliance of section 2(d),2(e) and 2(f) punishment of which is
provided in section 3 of MCOC Act, it has to say that prosecution proved
relevant charges framed against accused no.1 to 3 stated above.
To prove offences of conspiracy, there is corroboration to
...92/
Judgment 92 MCOC Pl. Case No.2/12.
aforesaid evidence through mobile numbers, CDR and computer print out
from Nodal officer PW5 to PW11 and 31. Overt act of firing incident as
per above discussed points can be said as ultimate culmination of
conspiracy by accused no.1,2 and 3. It is also supported by way of
recovery of fire arms and ammunition from A1 to A3 in proof of which
evidence is discussed in group II under the head “incident dated
14/10/11”. Of course to prove incident of firing there is detailed evidence
discussed in groupI under the head of incident dated 1/10/11.
100. So far as charge U/sec. 307, r/w 120(B) of IPC on the basis of
material evidence came on record in the evidence of injured Sohel Khan
and eyewitness Sohel Dalvi and medical officer PW23, during the course
of argument Learned Advocate for A1 to A3 raised doubt about case of
prosecution in firing incident as well as injury received by PW2. As per
material in cross examination of PW2 injured after first bullet he
immediately ducted and took action to save himself. However, he received
bullet at his leg. He also stated in his cross examination that assailant was
pointing weapon towards his chest while firing of all three shouts. When
such was material in cross examination of injured, evidence from mouth of
eyewitness PW27 brought on record speaks he witnessed that assailant
was in front of injured. To specific question whether he felt that assailant
was trying to kill injured, it was his say that there was no intention of
killing of assailant. On the basis of such material brought in cross
examination of injured and eyewitness, from mouth of Doctor PW23
defence has brought on record admission that if assailant was facing
...93/
Judgment 93 MCOC Pl. Case No.2/12.
towards injured, injury mentioned in certificate is not possible. Having all
such sort of material brought on record in evidence of three witnesses,
during the course of argument Learned Advocate for accused submitted
that possibility of receiving bullet injury at leg is not there and it creates
doubt in firing incident. It is true that in the evidence of both injured and
eyewitness, it has come on record that both PW2 and assailant (A3) who
was sitting on bike with A2 were facing towards each other and in front of
each other. However, while appreciating such position of assailant and
injured though there is aforesaid admission given by Doctor that injury
mentioned in certificate is not possible, if assailant was facing towards
injured, it may be noted that both A2 and A3 were at higher
position(level) than injured as they both were on bike and injured was
ducked. One important fact which was told by injured before the Court
stated above is that after first bullet he took action to save himself and he
immediately ducked. Having such version of injured on record, in my
opinion, whatsoever stated by eyewitness and Doctor about facing of
injured and assailant against each other can not be given more importance
as PW2 injured specifically deposed that he immediately ducked after first
bullet and received thereafter one amongst two bullet at his leg.
101. Identity of A1 to A3 is proved by prosecution on the basis of T.I.
parade Ex.153 which is held by PW19 in which PW2 and 27 identified
A2 and A3. And while proving panchanama Ex.112, there is identification
of A1 alongwith other two. Of course in addition to above stated oral
evidence of witnesses, there is corroboration to evidence of complainant
...94/
Judgment 94 MCOC Pl. Case No.2/12.
from PW34 and in proof of LAC no.2220/11, there is evidence of PW33.
So far as second incident dated 14/10/11 is concerned, both Ist and IInd IO
i.e. PW35 and PW36 ultimately completed chain of evidence right from
lodging FIR and LAC no.2220/11 in respect of both incident till producing
on record medical evidence, forensic expert i.e. FSL report, sanction to
prosecute under Arms Act, approval to investigate CR under MCOC Act
and ultimately sanction to prosecute accused U/sec. 23(2) of MCOC Act.
Conclusion.
102. In view of finding given in above para of the judgment so far as
point no.1 is concerned, I hold that prosecution proved the fact that
accused nos. 1,2 and 3 by way of conspiracy agreed to do illegal act of that
extortion by threatening PW15 on behalf of head of Crime Syndicate Ejaj
Lakadawala and accused no.2 and 3 by committing firing incident and
ultimately offences U/sec. 120(B) r/w 387 of IPC.
103. So far as point no.2, though prosecution proved the fact that
accused no.1 to 3 in furtherance of their common intention and pursuant
to act of criminal conspiracy committed Ist incident ; however so far as
offence of criminal intimidation that of threatening to PW15 Mohd. Akram
for extortion amount offence U/sec. 506II r/w 387 r/w 34 of IPC is
proved only against accused no.3
104. So far as essential ingredient to prove offence U/sec. 307 of IPC is
concerned, prosecution has to prove act done by assailant with such
intention or knowledge and under such circumstances that, if assailants by
...95/
Judgment 95 MCOC Pl. Case No.2/12.
that act caused death, he would be guilty for murder. If such circumstance
is proved by prosecution as per earlier part of section 307, punishment
may be to the extent of 10 years and subsequent ingredient of section
shows that if by such act and under such circumstances if hurt or injury is
caused, then offender shall be liable for imprisonment for life. Meaning
thereby if by such act of assailant, if injury is caused, there is severe
punishment for the offence of attempt to murder. And if injury/hurt is not
caused and assailant was having only intention or knowledge that under
such circumstances, if he by that act caused death, he would be held guilty
of murder, then as per earlier part of 307, punishment provided is some
what lesser. If one has to appreciate nature of firing incident coupled with
all related evidence brought on record by prosecution in proof of incident
dated 1/10/11 discussed in groupI of evidence, in my view aforesaid
material brought on record by defence will not affect the case of
prosecution to say incident of firing is got up and prepared by prosecution.
Ultimately I hold that prosecution proved the fact that accused nos. 2 and
3 are guilty for offences U/sec.307 r/w 120(B) of IPC.
105. In view of discussion made in relevant sub para of finding, it is
already held that there is only material on record to prove offences U/sec.
3 r/w 25 of Arms Act against accused no.3. Ultimately while giving finding
to point no.4, it has to hold that accused no.3 is guilty for the offences
U/sec. 3 r/w 25 of Arms Act. So far as offence U/sec. 37 r/w 135 of
Bombay Police Act is concerned, it is already held in relevant para of the
finding that accused nos. 2 and 3 were not only found in possession but
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Judgment 96 MCOC Pl. Case No.2/12.
there is transfer of pistol and use of pistol by accused no.3 and it is
contravention of order passed by Deputy Commissioner of Police which is
published in Government Gazette of State of Maharashtra as filed on
record vide Ex.214. Hence, I hold that point no.5 is proved by prosecution
against accused no.2 and 3 only. At this stage, it may be noted that though
there is also material against accused no.1 so far as offences under
Bombay Police Act is concerned on account of non framing of charge
against him no finding can be given against accused no.1
106. So far as offences punishable U/sec. 3(i)(ii),3(2),3(4) of MCOC Act
is concerned, already detailed discussion about oral evidence and
documentary is made in relevant paras of evidence from groupI to group
IV including paragraphs of finding. On basis of all those observation and
finding ultimately, I hold that accused nos.1, 2 and 3 some time singly or
some time jointly worked for and on behalf of Ejaj Lakadawala head of
Crime Syndicate with object of gaining pecuniary benefit and by way of
firing incident conspiracy which was hatched with wanted accused Ejaj
Lakadawala and A3 was taken in action with the help of A1 and A2 who
aided and abetted in commission of organized crime. Firing arms and
ammunition recovered by from A1 to A3 is supporting evidence of
prosecution to prove act preparatory is organized crime in the present
case. Ultimately, I hold that accused nos. 1,2 and 3 are guilty for offences
U/sec. 3(i)(ii),3(2),3(4) of MCOC Act.
107. So far as role of accused no.4 and 5 is concerned, on scrutiny of
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Judgment 97 MCOC Pl. Case No.2/12.
whole evidence discussed right from PW1 to PW36 including
documentary evidence available on record, it has to say that except mobile
seized at their instance that too in the name of third person and related
CDR, there is no material against them. There is also no evidence against
A4 and A5 to show that they were having any connection or contract with
either A1,A2 or A3. So having their connection with wanted accused
Ejaj Lakadawala is far away from case of prosecution. During the course of
argument, Learned Spl. P.P. plainly admitted that there is no evidence
against accused no.4 and 5. Learned Advocate for A5 in the course of
argument also submitted that as per Ex.49 only two mobiles and two SIM
cards from house search of A5 that too in the name of others are seized.
And except such seizure of mobiles, there is no connection of A5 with
either A1, A2 or A3 or wanted accused Ejaj Lakadawala. It is also his
say that there is no reference of name of either A4 and A5 in confession
of either accused. He is not part of any meeting or conspiracy and call
details also do not support prosecution to prove connecting link of A5
with A1 to A3 or wanted accused. Therefore, on the basis of such and
other material available on record, it has to hold that prosecution failed to
prove any of the charges against accused nos. 4 and 5.
108. From all above discussion and evidence available on record
including finding given to each point in relevant paras of the judgment,
ultimately I hold accused nos. 1 to 3 guilty for respective charges discussed
above. By giving finding to each point accordingly, I stop here to hear
accused nos. 1,2 and 3 on point of sentence.
...98/
Judgment 98 MCOC Pl. Case No.2/12.
Date : 17/11/2014 (P.R.DESHMUKH) Special Judge,
Under MCOC Act, Greater Mumbai.
109. Accused no.1 is explained that he is held guilty for offence
U/sec. 120(B) r/w 387 of IPC and for offence U/sec. 3(1)(ii),3(2) and
3(4) of MCOC Act. Accused no.2 is explained that he is held guilty for
offence U/sec. 120(B) r/w 387, 307 r/w 120(B) of IPC , U/sec. 37/135 of
Bombay Police Act and and for offence U/sec. 3(1)(ii),3(2) and 3(4) of
MCOC Act. Accused no.3 is also explained that he is held guilty for the
offence U/sec. 120(B) r/w 387, U/sec. 506II r/w 387, 307 r/w 120(B) of
IPC, and U/sec. 3/25 of Arm Act, r/w 120(B) of IPC and for offence U/sec.
3(1)(ii),3(2) and 3(4) of MCOC Act. Their Advocates are absent. They
are informed that their submission on point of sentence will be heard at
1.30 p.m.
110. Heard accused no.1 on point of sentence. He submitted that he is
having aged parents, young children and wife whose both hands are
handicap He prayed for leniency. Learned Advocate for accused no.1
submitted that there is no previous conviction and considering provisions
contend in the Act for each offences, minimum punishment be awarded.
111. Heard Accused no.2 on point of sentence. He submitted that he is
having young children and wife. There is no earning member for his
...99/
Judgment 99 MCOC Pl. Case No.2/12.
family. He prayed for leniency. Learned Advocate for accused no.2
submitted that there is no previous conviction or criminal record against
A2. Considering nature of offences minimum punishment be awarded.
112. Heard Accused no.3 on point of sentence. He submitted that he is
having two children and wife. He prayed for leniency. Learned Advocate
for accused no.3 submitted that there is no previous conviction or criminal
record against A3. Considering the same minimum punishment be
awarded.
113. Heard Spl. P.P. on point of sentence on behalf of prosecution he
submitted that by considering object of MCOC Act and nature of offence
committed by Accused nos. 1 to 3 maximum punishment be awarded to
them.
114. Upon hearing accused and their respective Advocates on point of
sentence as well as Spl. P.P. for State and having gone through punishment
provided for each offence in respective Acts, in my view following order
will meets the end of justice.
ORDER
1. Accused no.1 Riyaz Ahmad Hussain Shaikh @ Bhaiji, accused no.2
Nilesh William Jatanna @ Annu and accused no.3 Prashant Prasad Rao @
Sunny are hereby convicted as under;
1(a). Accused no.1 Riyaz Ahmad Hussain Shaikh @ Bhaiji is
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Judgment 100 MCOC Pl. Case No.2/12.
hereby convicted for the offences punishable U/sec. 120B r/w 387 of IPC
and he is sentenced to suffer R.I. for 5 years and to pay fine of Rs.5000/.
In default of payment of fine he has to suffer more R.I. for 1 years.
1(b). He is also convicted for the offence punishable U/sec. 3(1)(ii)
of MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to
pay fine of Rs.5 lakh. In default of payment of fine he has to sufficer RI for
2 years.
1(c). He is also convicted for the offences punishable U/sec. 3(2) of
MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to pay
fine of Rs.5 lakh. In default of payment of fine he has to sufficer RI for 2
years.
1(d). He is also convicted for the offence punishable U/sec. 3(4) of
MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to pay
fine of Rs.5 lakh. In default of payment of fine he has to sufficer RI for 2
years.
2. Accused no.2 Nilesh William Jatanna @ Annu is hereby convicted
for the offences punishable U/sec. 120B r/w 387 of IPC and he is
sentenced to suffer R.I. for 5 years and to pay fine of Rs.5000/. In default
of payment of fine he has to suffer more R.I. for 1 years.
2(a). He is also convicted for the offences punishable U/sec. 307
r/w 120B of IPC and he is sentenced to suffer R.I. for 10 years and to pay
fine of Rs.5000/. In default of payment of fine he has to suffer more R.I.
for 2 years.
2(b). He is also convicted for the offence punishable U/sec. 37/135
...101/
Judgment 101 MCOC Pl. Case No.2/12.
of Bombay Police Act, and he is sentenced to suffer R.I. for 6 months and
to pay fine of Rs.1000/. In default of payment of fine he has to suffer
more R.I. for 2 months.
2(c). He is also convicted for the offence punishable U/sec. 3(1)(ii)
of MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to
pay fine of Rs.5 lakh. In default of payment of fine he has to sufficer RI for
2 years.
2(d). He is also convicted for the offences punishable U/sec. 3(2) of
MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to pay
fine of Rs.5 lakh. In default of payment of fine he has to sufficer RI for 2
years.
2(e). He is also convicted for the offence punishable U/sec. 3(4) of
MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to pay
fine of Rs.5 lakh. In default of payment of fine he has to sufficer RI for 2
years.
3. Accused no.3 Prashant Prasad Rao @ Sunny he is hereby convicted
for the offences punishable U/sec. 120B r/w 387 and he is sentenced to
suffer R.I. for 5 years and to pay fine of Rs.5000/. In default of payment
of fine he has to suffer more R.I. for 1 years.
3(a). He is also convicted for the offence punishable U/sec. 506II
r/w 387 of IPC and he is sentenced to suffer R.I. for 3 years and to pay fine
of Rs.1000/. In default of payment of fine he has to suffer more R.I. for 6
month.
3(b). He is also convicted for the offence punishable U/sec. 307
...102/
Judgment 102 MCOC Pl. Case No.2/12.
r/w 120B of IPC and he is sentenced to suffer R.I. for 10 years and to pay
fine of Rs.5000/. In default of payment of fine he has to suffer more R.I.
for 2 years.
3(c). He is also convicted for the offence punishable U/sec. 3 r/w
25 of Arms Act r/w 120(B) of IPC and he is sentenced to suffer R.I. for 3
years and to pay fine of Rs.1000/. In default of payment of fine he has to
suffer more R.I. for 6 month.
3(d). He is also convicted for the offence punishable U/sec. 37/135
of Bombay Police Act, and he is sentenced to suffer R.I. for 6 months and
to pay fine of Rs.1000/. In default of payment of fine he has to suffer
more R.I. for 2 months.
3(e). He is also convicted for the offences punishable U/sec. 3(1)(ii)
of MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to
pay fine of Rs.5 lakh In default of payment of fine he has to sufficer RI for
2 years.
3(f). He is also convicted for the offences punishable U/sec. 3(2) of
MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to pay
fine of Rs.5 lakh. In default of payment of fine he has to sufficer RI for 2
years.
3(g). He is also convicted for the offences punishable U/sec. 3(4) of
MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to pay
fine of Rs. 5 lakh. In default of payment of fine he has to sufficer RI for 2
years.
4. All sentences awarded to accused nos.1,2 and 3 for offences in
...103/
Judgment 103 MCOC Pl. Case No.2/12.
respective Acts shall run concurrently.
4(a). Accused Nos.1,2 and 3 are in custody from 14/10/2011. They
are entitled for set off for undergone period.
5. Accused no.4 Mohammad Jafar Esak Madhwala @ Chacha and
accused no.5 Zakariya Bashir Khan @ Jiko @ Salim are hereby acquitted
from offences U/sec. 120B r/w 387 of IPC, 506(II) r/w 387 of IPC, 307
r/w 120(B) of IPC and offences U/sec. 3(1)(2),3(2),3(4) of MCOC Act.
6. Bail bonds of accused nos.4 and 5 stands discharged and they be set
at liberty forthwith, if not required in any other case.
7. Seized muddemal property article 1 to 30 as per list of article be
preserved for trial of wanted accused.
8. Issue standing NBW against wanted accused.
DCB CID is directed to filed separate chargesheet against wanted
accused after their arrest.
9. Certify copy of judgment be given to accused nos. 1,2 and 3 free of
cost .
10. Judgment pronounced in open Court today on 17/11/2014.
Date : 17/11/2014 (P.R.DESHMUKH) Special Judge,
Under MCOC Act, Greater Mumbai.
...104/
Judgment 104 MCOC Pl. Case No.2/12.
Dictated on : 1st, 5th, 10th,13th ,14th,17th November 2014.
Transcribed on : 3st, 6th, 11th ,14th,15th,17th November 2014.
Signed on :
.../