1 cr-apeal-972-10 Jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPEAL NO. 972 OF 2010 The State of Maharashtra ...Appellant Vs. Sameer Ashok Manik ..Respondent .... Mrs. A.S.Pai A.P.P. for appellant-State Mr. Pankaj Kavale Adv. for Respondent-accused. .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. DATE : JANUARY 14, 2011 P.C.: 1 We have heard Mrs. Pai, the learned A.P.P. 2 This appeal filed under Section 12 of the Maharashtra Control of Organized Crimes Act, 1999, (for short `M.C.O.C.Act ’) seeks to challenge the order of acquittal passed by the learned Additional Sessions Judge, Greater Mumbai in M.C.O.C. Special Case No. 22 of 2005 on 2 cr-apeal-972-10 16.12.2008. By the said order, the respondent-accused has been acquitted of the offences punishable under Sections 3(1)(i)(ii), 3(2), 3(4) of the M.C.O.C. Act, Sections 387, 449 and 302 read with Section 120-B of the I.P.C. and under Section 27(1) read with Sections 5 and 35 of the Arms Act. 3 As per the prosecution, one Mr. Jaya Shetty was shot dead in broad day light at about 1.10 p.m. on 4.5.2001 and he was eliminated by an organized crimes syndicate. One Ajay Mohite was caught red handed at the spot by the police, but subsequently, he was killed in a police encounter. Some other accused were also taken in custody and it was claimed by the prosecution that Mr. Jaya Shetty was eliminated by the Hemant Pujari gang. The respondent came to be arrested on 16.3.2005 i.e. after about four years, on the ground that he was a member of the Hemant Pujari gang or the Chota Rajan gang and it in this fashion, he was put on trial in M.C.O.C. Special Case No. 22 of 2005. It was also claimed that he was a part of the conspiracy hatched to eliminate Mr. Jaya Shetty and was a member of an organized crime syndicate. 4 Before the trial Court, the prosecution examined in all 19 witnesses and leaving the police officers, it relied upon the evidence of PWs 12, 13, 14 and 15, and PW 15 Mahesh was claimed to be a friend of 3 cr-apeal-972-10 the accused. The prosecution case was based only on the circumstantial evidence. The learned trial Judge framed issues in paragraph 11 and by taking into consideration the evidence placed before it, held that the prosecution could not prove its charge that the accused and the absconding accused entered into a criminal conspiracy on 4.5.2001 pursuant to the said conspiracy, Mr. Jaya Shetty was killed. It was further held that the prosecution could not prove the association or membership of the accused of any organized crimes syndicate headed by Chota Rajan or Hemant Pujari and that, he abetted and conspired to commit the murder as a part of the continuing activity of the organized crimes syndicate headed by Chota Rajan and Hemant Pujari. The charge of the possession of fire arms was also discarded. 5 So far as the accused being a member of an organized crimes syndicate is concerned, the trial Court referred to the judgment of the Supreme Court in the case of State of Maharashtra and others Vs. Lalit Somadatta Nagpal; 2007 ALL S.C.R. 1078 and noticed that the prosecution could not have alleged continuing unlawful activity unless at least two charge sheets were lodged, in relation to the offence punishable with three years imprisonment, within a period of 10 years and that the competent Court had taken cognizance of such offences. The prosecution had relied upon two chargesheets at Exh. 44 and Exh. 45. 4 cr-apeal-972-10 Exh. 44 was the charge sheet in Sessions Case No. 406 of 2005 and Exh. 45 was the charge sheet in Sessions Case No. 458 of 1999. The first charge sheet was filed against the accused alone for the offence of murder, whereas the second charge sheet was filed against Chota Rajan and others and the accused was not implicated in the said case. Hence, the trial Court concluded that there was no continuing unlawful activity of the accused on the basis of this evidence and that there was no evidence that the unlawful organized crime syndicate existed either headed by Chota Rajan or Hemant Pujari in which the accused was a member. For these reasons, the trial Court recorded a finding that the charge under the M.C.O.C. could not be established. We do not find any error in this finding. 6 Then the trial Court proceeded to examine the involvement of the accused in the charge of conspiracy and murder of Jaya Shetty. It noted that the accused was arrested on 15.3.2005 by the police officers attached to the Anti Terrorist Squad (ATS) and this was proved by the evidence of PW 16 Narayan. On 20.6.2005 the accused was taken into custody for the offence in question and Mrs. Sushila (A.C.P.) PW 19 was the Investigating Officer and during the course of investigation, the accused was alleged to have volunteered to make a confession. She, therefore, put a note to the Additional Commissioner of Police, who inturn, 5 cr-apeal-972-10 appointed Deputy Commissioner Zone-IV to record a confession of the accused. Accordingly, D.C.P. Smt. Anu Mund/Bhitre recorded his statement on 4.7.2005 at Exh. 23. In addition, this judgment in M.C.O.C. Case No. 13 of 2001 was also relied upon by the prosecution in support of its charge of conspiracy. The prosecution case against the accused was solely based on the purported confession. 7 The trial Court referred to the scheme of Section 18 of the M.C.O.C. Act, which deals with certain confessions made to the police officers and noted that Exh. 23 confession was recorded by following a due procedure by PW 10. It was recorded in two parts. The first part contained primary questionnaire made by PW 10 to ascertain from the accused as to whether he wanted to make a voluntary confessional statement and second part contained questions put to the accused to ascertain his voluntariness to give a confession and actual confession statement. When PW 10 Smt. Anu was examined before the Court, she tendered certain documents i.e. Exhs. 24 to 31 in support of the confessional statement. The letters at Exh. 24, 29 and 30 were taken on record by consent. While dealing with this issue, the trial Court further noted that the accused was in the lock-up of Yellow Gate Police Station before his statement was recorded by PW 10 and he continued to be in the police lock up even on the day his statement was recorded. He was 6 cr-apeal-972-10 produced before the learned Chief Metropolitan Magistrate on the following day i.e. after his confessional statement was recorded and again was brought back to the lock up of Gamdevi Police Station which is proved from the evidence of PW 11 Kundalik P.S.I. from Yellow Gate Police Station. This witness also proved that when the accused was produced before the learned Metropolitan Magistrate, a sealed envelop containing these confessions was handed over. PW 11 was present outside the office of PW 10 when the accused was produced. The Investigating Officer was armed with fire arm whilst he entered the chamber of PW 10 and she remained in the chamber of PW 10 till 7 p.m. i.e. soon before the accused was again taken for being kept in the lock- up of Yellow Gate Police Station. PW 10 Smt. Anu admitted to have briefed the accused about the facts of the case before he was produced before the learned Metropolitan Magistrate. It is for these cumulative reasons, the trial Court held that the confession could not be relied upon and it was discarded. It also noted that PW 10 Smt. Anu had not certified about her personal satisfaction of about voluntary character of such confession and this is an additional ground to make the confession unacceptable and hence unreliable. 8 Thus, examined on any count, in our considered view, the reasonings set out by the trial Court in acquitting the respondent, does not 7 cr-apeal-972-10 call for any reconsideration by this Court and hence, we do not find any merit in the challenge to the said order. Appeal must, therefore, fail at the threshold and the same is hereby dismissed. [ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.]