1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 216 OF 2003 1) Sunil Vishwanath Gaikwad 2) Sachin Manohar Khambe ... Appellants. vs. The State of Maharashtra. ... Respondents. Mr. S.R. Pasbola for the appellants. Mr. S.R. Borulkar, PP for the State. Coram: Coram: Coram: J.N. PATEL &, J.N. PATEL &, J.N. PATEL &, R.S. R.S. R.S. MOHITE, JJ. MOHITE, JJ. MOHITE, JJ. Date: Date: Date: 25th January, 2007. 25th January, 2007. 25th January, 2007. ORAL JUDGEMENT : (Per J.N. Patel, J.) . In M.C.O.C. Special Case No. 13/2000 along with Sessions Case No. 1028/2000 the appellants came to be tried by the Special Judge under the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the (MCOC Act, 1999) for Greater Bombay on a charge of conspiracy to commit murder of the deceased Ziauddin Naimul Haque Shaikh Usmani along with others, viz., wanted accused Subhashsingh Thakur, Shyam Kumar Girikapatti and other unknown persons and in furtherance of the aforesaid conspiracy they along with 2 their unknown accomplices on 20.1.2000 at about 7.30 a.m. to 7.35 a.m. in front of Maharashtra Bakery, Road No. 1, Park Site, Vikroli, committed murder of Ziauddin Naimul Haque Shaikh Usmani and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and Section 120-B of the Indian Penal Code. They were also charged and tried for having committed offence punishable under Section (1B), clause (a) of Section 25 of the Arms Act, 1959 for being in possession of pistol and revolver of which they had no licence and that the said fire arms were used in the commission of the offence and they were charged and tried for having committed offence under section 27 of the Arms Act, 199. 2. The two appellants were also charged for having committed offence under sub-section (4) of Section 3 of MCOC Act, 1999 for being members of the Organised Crime Syndicate and that the murder of deceased Ziauddin Naimul Haque Shaikh Usmani is also an offence committed by Organised Crime Syndicate as defined in clause (e) of sub-section (1) of Section 2 of the MCOC Act, 1999 and thereby committed an offence punishable under clause (i) of sub-section (1) of Section 3 of the said MCOC Act, 1999 and also under sub-section (2) of Section 3 of the said Act. An additional charge came to be framed against the appellant original accused no. 1 under the Arms Act. The Special Court found them guilty of having committed offence punishable under 3 Section 302 read with Section 34 along with Section 120-B of the Indian Penal Code and sentenced them to imprisonment for life and also a fine of Rs. 10,000/- each, in default to suffer RI for 10 months. Special Court also convicted them for offences punishable under Section 25(1B) of the Arms Act and sentenced them to suffer RI for three years and fine of Rs. 1000/- each and in default to suffer RI for one month and for the offence punishable under Section 27 (1) of the Arms Act, they were sentenced to suffer RI for seven years and also to pay a fine of Rs. 2000/- each and in default RI for two months. The appellants were acquitted of the charge of offences punishable under Section 3 (1) and 3 (2) of the MCOC Act, 1999. The Court did not impose separate sentence for the offence punishable under Section 120-B IPC and ordered that the substantive sentences for the offences punishable under the Arms Act to run concurrently and also granted set off as provided under Section 428 of the Cr. P.C. It is this conviction and sentence which is the subject matter of challenge in this appeal. 3. In nut-shell, the prosecution case is that the appellants are the members of the organized crime syndicate led by Subhashsingh Thakur and others who conspired to commit murder of Ziyauddin Naimul Haque Shaikh Usmani as he has expressed his hostility towards Subhashsingh Thakur. It would be pertinent to note here that subsequently Subhashsingh Thakur and his 4 associates, who were wanted in the case, came to be arrested and charge sheeted in the said case and were discharged (MCOC Case No. 13/00 and 18/00). The deceased Ziyauddin Naimul Haque Shaikh Usmani, the resident of Bandra was in construction business which he was running in the name and style of Abhijeet Enterprises. He was residing separately from his family members who were owning a restaurant by name Bilal Restaurant situated at Agra Road at Ghatkopar and were residing at Vikroli, Park Side, Road No. 1, Lower Depot Pada, Room No. 384, Mumbai 400 079. The deceased Ziyauddin Naimul Haque Shaikh Usmani had a Maruti Zen and used to come and reside with his other family members on holidays and week ends. 4. According to the prosecution, in the evening of 19.1.2000 deceased Ziyauddin along with his family members came to reside with his brother Mohd. Jakaullha Namul Haque Usman (PW-4) and other members of the family and his mother. On the next day in the morning he came out of the house. As he did not come back for some time, his wife got anxious and expressed it to her brother-in-law i.e. Mohd. Jakaullha Namul Haque Usman (PW-4). Mohd. Jakaullha came out of the house in search of his brother to see what has happened, somebody informed him that Ziyauddin has been shot. So he rushed towards the place where Ziya’s car was parked i.e. in front of Maharashtra Bakery. But he noticed that the front door of the driver’s side was 5 open. Ziya was sitting on the driver’s seat and was bleeding. On seeing this, he took his brother Ziya in a rickshaw to Rajawadi Hospital. There on examination, Ziya was declared to be dead. 5. Thereafter the police came to the hospital and after dead body of Ziya was identified by his brother, statement was recorded which was treated as FIR. The police then carried further investigation like drawing of inquest panchanama, seizure of the articles like clothes and contents from the person of the dead body. Scene of offence panchanama came to be prepared and while examining the maruti car, the police got two lead pieces of bullets in the maruti car, a tooth which had been lying there and also blood samples from the car was taken charge of. The same was packed and sealed in the presence of panchas. The dead body was sent for post mortem examination and, thereafter it was handed over to relatives of the deceased. W.P.S.I. Nilam Samant (PW-18) was at the relevant time on duty at the Park Side Police Station. In the course of investigation statements of witness came to be recorded. 6. It is the case of the prosecution that on 21.1.2000 at about 4.00 to 4.30 p.m. one rickshawala by name Prakash Harishchandra Pidankar (PW-11) came to the police station and gave certain information and his statement came to be recorded by W.P.S.I. Nilam Sawant 6 (PW-18). It so happened that the appellant accused no. 1 Sunil Vishwanath Gaikwad came to be arrested by the team of officers led by PSI Prinam Namdev Parab (PW-6) and PSI Ganesh Kashinath Lahane (PW-7) of Unit-VI of DCB CID on 3.2.2000 near New Welcome Hotel at Ghatkopar on the basis of certain information received by the police. Therefore, as soon as he was apprehended panchas were requisitioned. In the presence of panchas accused was searched and police found Bulgarian made pistol containing live cartridges on the person of the appellant-accused and four more live cartridges in the right side pant pocket of the said accused. As he was not having licence to possess the pistol and cartriges, a FIR Exhibit-26 came to be lodged under the Arms Act against the accused. 7. On interrogation of this appellant-accused it was found that he was concerned with the offence registered vide Crime No. 10/02 by Park Side Police Station. Similarly, the appellant-accused no. 2 came to be arrested by team of officers led by Sohel Mohd. Siddiq Buddha (PW-10) and Vilas Vishnu Joshi (PW-13) of Santacruz Police Station at about 15.20 hrs. along with two others near Ambedkar College. On their search in the presence of panchas, the police found a loaded revolver on the person of appellant-accused Mr. Sachin Manohar Khambe and other articles like mobile phone, sim card, etc., which came to be packed and sealed in the presence of the panchas and FIR also came to be 7 lodged for possession of arms and ammunition without licence. During further investigation he was also found to be connected with murder of Ziyauddin and, therefore, his custody was taken in the investigation of that case. Fire arms and ammunition seized from both the accused had been subsequently forwarded to Ballistic expert and Forensic Science Laboratory. 8. Thereafter the investigation was handed over to the Senior PI Shri Dani. 9. In the course of investigation, the police found that the deceased Ziyauddin has been murdered by an organized crime syndicate and, therefore, the investigating officer made a proposal for seeking approval of the Additional Commissioner of Police - North-West Div. Mumbai for registering the information of organised crime as required under section 3(1), (2), (3) and (4) of the MCOC Act, 1999 which came to be accorded on 12.6.2000 against the appellants accused along with their associates and the investigation was taken over by Nanasaheb Hiramal Chavan (PW-21) who was then the Assistant Commissioner of Police, Ghatkopar Division. The further investigation in the case was thereafter conducted by the team lead by ACP Chavan. 10. According to the prosecution, the appellant accused Sunil Vishwanath Gaikwad and Sachin Manohar Khambe volunteered to make a confession which came to 8 be recorded by DCP Padavi. Further, in the course of investigation, identification parade came to be held on 2.5.2000 where the suspect original accused no. 1 Sunil Vishwnath Gaikwad came to be identified by Prakash Harishchandra Pidankar (PW-11) and Rahil Rafiq Shaikh (PW-15). On 23.5.2000 the test identification parade was held in respect of identification of original accused no. 2 Sachin Manohar Khambe and these two witnesses identified them. On completion of the investigation, charge sheet came to be filed against the accused persons in the Court of Special Judge. 11. In reply to the charge the accused persons pleaded not guilty and claimed to be tried. On conclusion of the trial Special Court found that the prosecution has proved that Ziyauddin died a homicidal death due to fire arm injuries caused by the accused persons and held them guilty of having committed offences under Section 302 read with 34 and/or 120-B of the IPC and so also for having committed offences under Section 25(1B) and Section 27(1) of the Arms Act. 12. Mr. Pasbola, the learned counsel appearing for the appellants submitted that the appellants-accused have been falsely implicated in the case by foisting the fire arms and cartridges on them and their case is dependent on evidence of PW-15 Rahil Rafiq Shaikh who claims to be the sole eye witness and the auto rickshaw driver in whose auto rickshaw the appellant accused 9 escaped the scene of occurrence i.e Prakash Harishchandra Pidankar (PW-11). It is submitted that both these witnesses are got up witnesses and, therefore, it would be most unsafe to rely on their evidence to hold the appellants accused guilty. It is submitted that in so far as PW-11 Prakash Harishchandra Pidankar is concerned, he had no occasion to see the persons who boarded his auto rickshaw and that is why he could not identify them in the court and it has come in his evidence that he has also not seen them in the test identification parade. Mr. Pasbola, the learned counsel for the appellants, submitted that Rahil Rafiq Shaikh (PW-15) who is the sole eye witness examined by the prosecution, his evidence is not corroborated by the evidence of the complainant, brother of the deceased, Mohd. Jakaullha Namul Haque (PW-4). As it is the case of the prosecution that this witness went to the house of Jakaullha and informed them that the deceased Ziyaudden was lying in injured condition in his Maruti car. Further, for two days this witness did not disclose the incident to the family members of the deceased or to the police who had already reached the spot and in so far as the identification of the suspects in the test identification parade is concerned, has no evidentiary value for the reason that the test identification parade was conducted after much delay and the suspects were shown by the police to these witnesses. 10 13. Mr. Pasbola submitted that the other set of evidence is in the form of arrest and recovery of weapons from the accused persons. It is the contention of the accused that they were taken in custody by the police much before the date of arrest shown in the charge sheet and in support of that the appellant accused no. 1 has examined his aunt Smt. Illabai Maruti Kharat (DW-1) who has deposed to the effect that the appellant accused was picked up on 1.2.2000 which shows that the case of the prosecution that he was arrested on 3.2.2000 is totally false and in his confessional statement also the accused has given the date of arrest as 1.2.2000. This has been corroborated by the evidence of Illabai. 14. Mr. Pasbola has mainly attacked the confessions of the two accused recorded by DCP Swaroopsingh K. Padavi (PW-16) on the ground that the confessional statements are recorded belatedly i.e. after the accused had been in the custody of the police. The confessions are recorded in contradiction of rule 3 (4) of the MCOC Act, 1999 and the confessional statements of the two accused were recorded at different times is in the nature of carbon copy. It is further submitted that the DCP has failed to comply with the requirements of Section 18 (4) and (5) of the MCOC Act and contrary to the rules which provides for safeguards while recording such confessions and the time for revision given to the 11 accused persons was only 18 hours whereas it is mandatory to give at least 24 hours time when accused got retracted and he wants to make a confession. Further those confessions were forwarded along with the accused persons to the Chief Metropolitan Magistrate. The Chief Metropolitan Magistrate has failed to verify the same as required under Section 18 (6) of the MCOC Act of 1999. It is submitted that both the accused have retracted their confession and even otherwise also the confessional statement of the accused is a weak type of evidence and cannot form the basis for conviction. 15. Mr. Pasbola submitted that so far as seizure of the weapons is concerned, the seizure panchanama and the panchas to the seizure do not support the prosecution case that the seized articles were wrapped, sealed and signed by the panchas at the time of the seizure on the accused being arrested. Further, there was delay in forwarding the fire arms and cartridges seized from the accused persons to the forensic laboratory and, therefore, the unexplained delay in forwarding these articles to the ballistic expert itself makes the prosecution case doubtful and the possibility of planting the fire arms and the two lead pieces - projectiles found on the spot to connect the appellant accused, cannot be ruled out. It is submitted that in so far as the evidence of forensic report is concerned, particularly that of the ballistic 12 expert, it is highly unsafe to rely on the said report as the prosecution has not led any evidence to show that the articles seized from the spot are the same which were sent to the ballistic expert and, therefore, the prosecution having failed to proved its case beyond reasonable doubt, the accused persons deserve to be acquitted. 16. Mr. Pasbola, the learned counsel for the appellants, submitted that the investigating agency in order to get advantage of the provisions of the MCOC Act, 1999 falsely implicated the accused persons under the said Act and they have no evidence against them to connect them with the murder of Ziyauddin and the whole exercise was undertaken merely to bring the accused persons within the purview of the said Act so that they could conveniently record their confessional statements. Therefore, the original accused deserves to be acquitted. 17. Mrs. Kejeriwal, learned APP, submitted that the prosecution was justified in invoking the provisions of the MCOC Act, 1999 taking into consideration that Ziyauddin was shot dead by the appellants-accused who were members of the organized crime syndicate. At the stage of investigation when it was revealed, the approval was sought from the competent authority and, therefore, it cannot be said that they were falsely implicated in the said case by 13 applying MCOC Act, 1999. It is submitted that as the investigating agency could not collect sufficient evidence to prove the case, the appellants accused as well as other suspects got advantage and were acquitted from the provisions of the MCOC Act, 1999 otherwise the prosecution has clearly established the fact that it is the appellants accused who have committed murder of Ziyauddin by using the fire arms. 18. Mrs. Kejriwal, the learned APP, submitted that both the accused persons came to be arrested on the basis of certain information received by the police and by different agencies and not by Park Side Police Station and it is in the course of their interrogation that they were found to be involved in the commission of murder of Ziyauddin and that is how their custody was taken in the present case. In the course of investigation the prosecution has been able to prove the ammunition / fire arms which came to be seized from them at the time of their arrest were used by them in committing murder of Ziyauddin which has been duly established by forensic evidence brought on record. It is submitted that the contention of the learned counsel for the appellant accused that the fire arms and cartridges were foisted on the accused persons is totally unfounded as the projectiles which came to be seized from the motor car of Ziyauddin in which he was shot by the assailants were independently seized, sealed and forwarded to the ballistic expert and it 14 tallied with the fire arms and ammunition seized from the accused persons for which there has been no explanation coming forward from the accused persons. It is submitted that the appellants accused have not disputed that they were found in possession of fire arms and ammunition and this corroborates confessional statement recorded by DCP Padavi. It is submitted that the retraction of the confession made before the DCP by the appellants accused is an afterthought and was only taken into consideration against the appellants accused as there is independent evidence and material placed in the trial to connect the appellants accused with the crime. 19. Mrs. Kejeriwal, the learned APP, submitted that the plea of the appellants accused particularly, appellant accused no. 1 that he was arrested on 1.2.2000 instead of 3.2.2000 merely because he has stated so in his confessional statement and examined his aunt cannot be accepted for the very reason that the appellant accused has been arrested on specific information on 3.2.2000. It is submitted that if the evidence of DW-1 Smt. Illabai, the aunt of the appellant accused is seen, she being the highly interested witness has only tried to come to the rescue of her nephew. Otherwise her evidence is totally unreliable. It is submitted that for the sake of argument even if it is accepted that the appellant accused was arrested earlier, still it would not make 15 any difference and, therefore, this plea by itself goes to show the complicity of the accused. 20. The learned APP submitted that the trial Court has examined each and every aspect of the case and rightly come to the conclusion that the appellants -accused are the persons who have committed murder of Ziyauddin. Though the trial Court has found part of the evidence led by the prosecution as unreliable as the witness did not support the prosecution but even in absence of direct evidence the circumstantial evidence produced by the prosecution squarely covers the involvement of appellants-accused in the crime. 21. It is submitted that the ballistic report, which is independent piece of evidence, goes to establish the prosecution case that Ziyauddin was shot dead by using these fire arms as the projectiles found from the scene of occurrence i.e. the bullet / head part of the ammunition clearly tallied with the bullets fired from the pistol and .45 revolver along with the ammunition and, therefore, the appeal deserves to be dismissed. 22. The key issue which arise for our determination is whether the appellants-accused have committed murder of Ziauddin Naimul Haque Shaikh Usmani by using fire arms. 16 23. In so far as the prosecution case is concerned that the deceased Ziauddin’s death was homicidal and caused by fire arm injuries, the same is not much disputed. It is a fact that on the fateful day Ziauddin @ Ziya as known to his family had come to Vikroli Park Side, Road No. 1, Lower Depot Pada, Room NO. 384 where his mother along with his brothers and their family members were residing. The deceased Ziya had come to stay with them on 19.1.2000 along with his family in his own car which was Maruti Zen. It was on 20.1.2000 at about 7.30 a.m. that he has gone out. Therefore, his brother Mohd. Jakaullha Namul Haque Usman (PW-4) on being requested by wife of Ziya came out to see why Ziya has not returned and he went towards the place where Ziya has parked his car i.e. in front of Maharashtra Bakery. It is at that time somebody called him and told that someone fired shot at Ziya. So he rushed towards the place where Ziya’s car has been parked and noticed that in front of the driver’s side he noticed Ziya sitting on the driver’s seat and his right side leg had come out from that door; with his hand kept on the back of his head and eyes closed and he was bleeding. He noticed marks of injuries on his neck just near the chin. Therefore, Mohd. Jakaullha Namul Haque Usman called one Abral and with the help of Abral he put Ziya in an auto rickshaw and took him to Rajawadi Hospital where Ziya was examined and declared dead. Thereafter police came there and after dead body of Ziya was identified by 17 him, his statement came to be recorded which was treated as FIR (Exhibit-18). After inquest panchanama was prepared, the dead body of Ziya was sent to J.J. Hospital by WPSI Samant from the Park Site Police Station along with ADR No 10/00 and inquest panchanama. According to Dr. Vijay Tasgaonkar (PW-5), he performed the post mortem examination on the dead body and found the following injuries:- "(4) I found, the following external injuries :- (i) A fire arm injury on the Rt. side of the face. The bullet had perforated the facial bone and had gone out from the Lt. side of the face. I noted the dimensions of the injuries. I mentioned them in the P/M report. (ii) External Injury No.4 - bullet enters the Rt. side of the Neck, it includes Rt. external jugular vein, Rt. side of larynx and chin and comes out to the external injury No. 3. (iii) The bullet had brushed over Rt. side of the neck. (iv) Ext. Inj. No. 8, fracture 8th rib on 18 the Rt. side perforated Rt. & Lt. Lung and heart. (v) Ext. Inj. No. 9 bullet perporte liver periteneum and Rt. Lung. Bullet comes out through Ext. Inj. No. 6.