:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1040 OF 2006 1. Vinod Sitaram Yadav, @ Bapu @ Vinod Bhaiya @ Mama Gawade, aged 40 years, residing at Sagar Chawl, Room No.10, Tagore Nagar, Group No.4, Vikhroli (E), Mumbai-400 083. 2. Jagdish Bhaskar Shetty @ Raghu @ Navin Shetty @ Reddy, Age 31 years, residinjg at Khindipada Kalawati, R.No.12, House of Shri.Dange in front of Ganpati Temple, Chiplun city, District Ratnagiri. ...Appellants. Vs. The State of Maharashtra. ...Respondent. Mr. Sudeep Pasbola with Mr.Rahul Arote for the Appellant. Mrs.M.H. Mhatre, APP. for the State. WITH CRIMINAL APPEAL NO.1044 OF 2006 3. Nilesh Dinkar Paradkar, Aged about 34 years, residing at Room No.302, 3rd floor, Swastik Sindhu Society, Navi Mumbai. ...Appellant. Vs. The State of Maharashtra, (at the instance of Asstt.Commissioner of Police, D-1 (Central East), Vide D.C.B., C.I.D. CR No.134/2004) ...Respondent. Mr. Nitin Sejpal with Ms. Pooja Bhojane for the Appellant. Mrs.M.H. Mhatre, APP. for the State. WITH :2: CRIMINAL APPEAL NO.1048 OF 2006 4 Amit Suryakant Dalvi, Age-26, residing at 2nd floor, Room No.F/10, Dnyasadhana Society, Sector-21, Kharghar, Belapur Gain, Navi Mumbai. ...Appellant. Vs. The State of Maharashtra. ...Respondent. Mr.S.R.Chitnis,Sr.Counsel with Mr.Rajendra Shirodkar for the Appellant. Mrs.M.H. Mhatre, APP. for the State. WITH CRIMINAL APPEAL NO.1049 OF 2006 5. Vishwanath Atmaram Jadhav @ Visha @ Budha Tatya @ Esha, Age 45 years, resident of Sitaram Sadan, Chawl No.1, R.No.1, Umeshnagar, Dombivli (West),Dist. Thane. ...Appellant. Vs. The State of Maharashtra, At the instance of Inspector of Police, D.C.B. C.I.D. Unit VI, Mumbai. ...Respondent. Mr. Prakash Shetty with Mr. J.P. Vithalani for the Appellant. Mrs.M.H. Mhatre, APP. for the State. CORAM: R.S. MOHITE, J. DATE : 21st August, 2008 ORAL JUDGMENT : 1. The aforesaid appeals impugne a judgment and order passed by the Special Judge under The Maharashtra Control of Organised Crime Act,1999. (hereinafter referred to as ("MCOC Act") passed in M.C.O.C. Special :3: Case No.3 of 2005. The operative part of the impugned judgment and order is as under. 1) Charge head firstly is not considered as it is repetition in charge heads secondly, thirdly and fifthly. 2) Accused Nos. 1 to 5 are held guilty for the offence punishable under Section 3(1)(ii) r/w Sec.3(2) of the MCOC Act, 1999 and are sentenced to suffer RI for 5 (five) years and to pay a fine of Rs.5,00,000/- ( Five lacs), each, in default, to suffer further RI for 1(One) year. 3) Accused Nos. 1,2,3 and 5 are held guilty for the offence punishable under Section 3(4) of the MCOC Act,1999 and are sentenced to suffer RI for 7(seven) years and to pay a fine of Rs.5,00,000/- (five lacs). each, in default, to suffer further RI for 1(one) year. Accused No.4 is not held guilty U/Sec.3(4) of the MCOC Act and is acquitted from the said charge. 4) Accused Nos. 4 and 5 are held guilty for the offence punishable under Section 3(5) of the MCOC Act, 1999 and are sentenced to suffer RI for 3(three) years and to pay a fine of Rs.2,00,000/- (two lacs), each, in default, to :4: suffer further RI for 6(six) months. Accused Nos. 1,2 and 3 are not held guilty U/sec.3(5) of the MCOC Act, 1999 and are acquitted from the said charge. 5) Accused Nos. 1,2,3,4 and 5 are held guilty for the offence punishable under Section 120-B r/w Sec.302 r/w Sec.115 of IPC are sentenced to suffer RI for 3 (three) years and to pay a fine of Rs.10,000/- (ten thousand), each,. in default, to suffer further RI for 6 (six) months. 6) Accused Nos. 4 and 5 are held guilty for the offence punishable under Section 419 r/w Sec.120-B of IPC and are sentenced to suffer RI for 1 (one) year. Accused Nos. 1,2 and 3 are not held guilty U/Sec.419 r/w Sec.120B of IPC and are acquitted from the said charge. 7) Accused Nos. 1,2 and 3 are held guilty for the offence punishable under Sec.3 r/w Sec.25 of the Indian Arms Act, 1959 and are sentenced to suffer RI for 3(three) years and to pay fine of Rs.5000/- (five thousand) each, in default, to suffer further RI for 6(six) months. Accused No..4 is not held guilty U/sec. 3 r/w 25 of the Indian Arms Act and is acquitted from the said :5: charge. 8) Accused No.5 is not held guilty for the offence punishable under Sec.3 r/w Sec.25 of the Indian Arms Act,1959 and is acquitted from the said charge. 9) Accused No.4 is held guilty for the offence punishable under Sec.36 r/w Sec.30 of the Indian Arms Act, 1959 and is sentenced to suffer R.I. for 6(six) months. 10) All the substantive sentences to run concurrently. 11) Accused are entitled to set off for the period already undergone in custody. 2. Criminal Appeal No.1040 of 2006 has been filed by the original accused No.1 Vinod Yadav and the original accused No.3 Jagdish Shetty @ Raghu. Criminal Appeal No.1044 of 2006 has been filed by the original accused No.5 Sripat @ Nilesh Paradkar, Criminal Appeal No.1048 of 2006 has been filed by the original accused No.4 Amit Suryakant Dalvi and Appeal No.1049 of 2006 has been filed by the original accused No.2 Vishwanath Yadav. The accused are hereinafter referred to as :6: "Accused Nos.1,2,3,4 and 5") as and where context requires. 3. This is a case where the prosecution refers to events which occur evidence occurred on certain dates. On behalf of the accused persons also defence evidence has been led. But there are certain dates in the defence case which are not part and parcel of the prosecution case. In the circumstances, I intend to give a time line of events in both the prosecution as well as defence case so that the clear picture can be arrived at. 4. From the facts as brought on record, the events, which allegedly occurred and which are relevant for a decision of this case were as follows. a) According to P.W.No.17-P.S.I. Vijay Dalvi, from 1.10.2004 onwards, during his duty hours, he started listening for conversations on telephone No.0060133402008. During his observations, till 27.10.2004, he did not come across any incoming or outgoing calls from the said telephone. b) It is the prosecution case that one Anjani Anand Shinde-mother of P.W.No.2 Prashant Shinde was the owner of two rooms bearing room Nos. 1 and 2 on the first floor of the building known as Ambika Niwas situated at :7: JSS Road, Girgaon. They were in search of tenants to occupy the said rooms and contacted several agents including one Mr.Suhas Pednekar. On 13.10.2004, at about 3.00p.m. the said Pednekar met P.W.No.2 Prashant and told him that tenant would have to pay a deposit of Rs.50,000/- and in addition pay rent of Rs.13,000/- per month. On the same day, he received a call from Pednekar that some students had accepted his proposal. A meeting to finalise the deal was fixed at Chembur on 15.10.2004 and accordingly at the appointed time he came alongwith one Sachin Patil and Sachin’s friend, later examined as P.W.No.13-Paresh Koli. Mr. Suhas Pednekar had come with a stamp paper of Rs.50/- and the Leave and Licence agreement was reduced into writing by Prashant. On the same day, Mr. Sachin Patil gave Rs.50,000/- and two passport photographs to Prashant. On the reverse, he had written the names of Akash Shirke and Paresh Thakkar. Out of Rs.50,000/-, Rs.10,000/-was paid by Prashant as commission to Suhas Pednekar. On 15.4.2004, the boy introduced as Sachin Patil telephonically asked for copy of the agreement and Prashant allegedly told him that the agreement was a katcha agreement and they would execute a new valid agreement. He asked Sachin Patil to come on 17.10.2004. On 17.10.2004, Sachin Patil again visited the house of Prashant Shinde. Prashant Shinde and his mother were present. They decided to go to a typist and to get the agreement typed. They went to the typist Anita and then a newly :8: typed agreement was signed by Anjanabai as Licensor and Sachin Patil as licensee. Prashant and Paresh signed the said agreement as witnesses and the earlier katcha agreement was then destroyed. Sachin Patil then went to reside in the premises. According to the police, Sachin Patil was none other than then accused No.4 Amit Dalvi and he had taken the rooms on rent for housing the other accused during their attempt to commit the offence of murder of Bharat Shah. c) That on or before 14.10.2004 P.W.No.42-D.C.P. (Detection) Mr. Dhananjay Dattatraya Kamlakar received information from his sources that the gangster Chota Rajan and his gang members, one Bharat Nepali were communicating with the associates and members of their syndicate for committing unlawful activities in Mumbai. He received information that the telephone number being used by Bharat Nepali was 0060133402008. The said number belonged to Malaysia. On receiving this information on 14.10.2004, this witness put up a note to the Additional Chief Secretary ( Home) for permission to intercept the aforesaid telephone number, which approval came to be ultimately granted by the Additional Secretary (Home) on 20.10.2004. d) After receipt of the approval on 20.10.2004, on 28.10.2004, P.W.No.17 P.S.I. Dalvi intercepted and recorded a conversation on the aforesaid telephone :9: No.0060133402008. According to the prosecution, this was a conversation between the absconding accused Bharat Nepali on the one hand and the accused numbers 1,2 and 5 on the other hand. The duration of the conversion which was recorded was for 9.16 minutes and the conversation revealed a conspiracy to gun down some influential person in Mumbai city. The conversion alluded to nature of the weapons to be used , the manner in which the assassination was to be carried out, who was to use which weapon, one being 0.45 revolver and other three being 0.38 revolvers and also referred to manner in which assassins should behave and make good their escape. e) When the call was over, P.W.No.17 P.S.I. Dalvi noted down the date and time of the said cassette and thereafter on the same day i.e. on 28.10.2004 took the cassette to P.W.No.42, his Sr. officer D.C.P. Kamlakar. On receipt of this cassette, P.W.No.42 D.C.P. Kamlakar played the said cassette and realized that 3 to 4 persons were talking and directions were being given in respect of a conspiracy relating to the commission of serious offence of murder by means of using fire arms. He also learnt from the tape recording that the target was some important person, the death of whom would take the Bombay Police to task. He directed P.S.I. Dalvi to seal the cassette. It was accordingly sealed in his presence and taken into his custody by D.C.P. Kamlakar. :10: f) According to the defence, on 3.11.2004 at about 3.00a.m., accused No.4 Amit Dalvi called his father D.W.No.4 Suryakant Dalvi on his land line. He told that there was continuous knocking on his door and the persons out side were stating that they were police. He requested his father to come to his house immediately. At the relevant time, accused No.4 Amit Dalvi was residing in rented house at Kharghar. The landlord of the said house was D.W.No.6- Pravin Shinde. On receiving the call, D.W.No.4 Suryakant Dalvi who was residing at Belapur immediately left for his son’s house at Khargar accompanied by his wife. They went by a car and reached there within 10-minutres. On reaching Khargar, he found that the house of his son was broken open and articles in the house were ransacked. He saw some police officers and on enquiry he was told that they were from the Crime Branch Unit No.6. One of the Police Officer i.e. P.W.No.32 P.I. Lohar told him that there was some complaint against his son and therefore, police were required to take him. According to him, he immediately contacted P.W.No.41 A.C.P. Kadam as the said officer hailed from his native place and was known to him. According to him, A.C.P. Kadam asked him to give his mobile to P.I. Lohar and the two officers had a conversation for about 2 to 3 minutes. That, thereafter P.I. Lohar took his diary, cell phone and election identity card from him. P.I. Lohar also took :11: away accused No.4 Amit. He deposed that the cell phone of A.C.P. Kadam was 9819050349. That, thereafter two constables were placed at the place, in order to confine this witness to the house of accused No.4. That at about 9.30 a.m. they left his wife home but took him to the Crime Branch. He was kept in the Crime Branch till 11.30p.m. and told to come on the next day morning. His son was not allowed to go. He again attended the office of the Crime Branch and he was asked to sit there till 8.00p.m. That, thereafter, every day till 7.11.2004 police used to call him and used to make him wait till 8.00 to 9.00 p.m.. His brother Rajendra and Dilip used to come to meet A.C.P. - Kadam at Ghatkopar. They met A.C.P. Kadam 3 to 4 times. On 8.11.2004 in the morning when he went to the Crime Branch, they told him that they have arrested Amit and they directed him to come to the Esplanade Court. He stated that he phoned to A.C.P. Kadam from the cell phone belonging to his driver and its number was 3252848. g) According to the defence, on 3.11.2004 at about 7.30a.m., the mother of the accused No.2 Vishwanath Yadav called up her elder son who stays in chawl No.4, Star Colony, Manpada Road, Dombivli alongwith Vishwanath and told him that police of Chembur Crime Branch, Unit No.6 had taken away Vishwanath. Chandrakant then went to the Crime Branch to enquire about his brother Vishwanath. There he met P.W.No.36 A.P.I.-Dilip Raut. :12: He saw Vishwanath sitting on the ground. He asked him why Vishwanath has been brought. He told him that he was required in an enquiry. Mr. Raut warned him not to tell about the taking of Vishwanath in custody and not to come again to the Crime Branch. Chandrakant then went to his place of work and narrated the incident to some of his friends. They advised him to consult an Advocate. One of his friend Pradip told him that he knew one Advocate Mr. R.K.Singh from Bandra Court and advised him to consult the said advocate. Chandrakant then went to Bandra Court alongwith his friend Pradip and met Mr. R.K.Singh. Since the Advocate was busy, he asked them to come at 5.00p.m. The witness then met Mr.R.K.Singh, Advocate at 5.00p.m. in Bandra Court. At that time, another Advocate D.W.No.2 Ashok Sangle was present there. Chandrakant informed the two advocates about the events of the day and also about his meeting with A.P.I. Raut. He requested them to come with him to Crime Branch Chembur, Unit No.6. Mr.R.K.Singh quoted a fee of Rs.3000/- and this amount was handed over by Mr. Chandrakant to Advocate R.K.Singh. Thereafter, they went to the office of Crime Branch at Chembur and reached there at about 5.00p.m. There Chandrakant waited outside and the two advocates Mr. R.K.Singh and Sangle entered the Crime Branch premises. They emerged 20 to 25 minutes later and told Chandrakant that they had met P.I. Lohar and API Raut. Those officers had not given any response. They informed him that :13: Vishwanath was inside the Crime Branch but no case has been registered against him.They told Chandrakant that alongwith Vishwanath there were two other persons present in the Crime Branch. Chandrakant told them that anything could happen to his brother. Both the Advocates agreed with the said apprehension of Chandrakant and advised him to communicate with the High Court and Commissioner of Police. Chandrakant requested them to do the needful. He also saw two unknown persons standing outside in the Crime Branch. These two persons also talked to R.K.Singh Advocate and informed him that two of their relatives had also been brought to the Crime Branch for enquiry. They were accused No.1 Vinod Yadav and accused No.4 Raghu Shetty. Then, Chandrakant requested his Advocates Mr. R.K.Singh and Advocate Sangle to sent a telegram to the High Court as he apprehended danger to the life of his brother. Both the Advocates asked him not to worry and assured him that they would take necessary steps. h) According to the defence thereafter Advocate R.K.Singh and P.W.No.2 Advocate Sangle came to Dadar Telegram Office and sent a telegram to the Chief Justice of Bombay High Court, the Commissioner of Police, Human Rights Commissioner and Home Minister of State of Maharashtra. These telegrams were sent on 3.10.2004 at about 9.30p.m. The telegram which was sent to the Chief Justice of Bombay and which was undisputedly received :14: and proved through the evidence of D.W.No.1 Anant Shankar Devlekar a Section Officer of the Court which read as under. "Subject: Apprehension of fake encounter or false implication in pending CR Sir, We are concern from my clients 1. Mr. Raghu Shetty 2. Vinod Singh and P.W.No.3 Vishwanath Jadhav picked up by Crime Branch Officers from Mumbai today at about 7.00p.m. My clients apprehend danger for their lives in pretext of fake encounter and further they may be detained illegally and implicated in false and concocted or pending CR. Hence, I am informing on behalf of my clients to your good self and request to look into the matter and protect the lives and liberty of my clients. Thanking you, Yours truly. Advocate R.K.Singh and A,.T.Sangle Advocates, 2nd floor Bhaskar Bhavan, A.K. Marg, Bandra (E), Mumbai -51". :15: i) According to the defence, on 6.11.2004, worried that his brother Vishwanath had still not yet released, D.W.No.2 Chandrakant met Advocate Mr.R.K.Singh and Mr. Sangle again on 6.11.2004 at about 5.p.m. He was told by Advocate R.K.Singh that telegrams had been despatched on 3.11.2004 at 9.15.a.m. He requested Advocate Mr. R.K.Singh to again visit the Crime Branch and make fresh enquiry about his brother. Accordingly at about 7.00p.m., Advocate R.K.Singh again accompanied by Advocate Sangle went to Chembur Crime Branch and met Sr.P.I. Lohar and A.P.I. Raut and they told them that the investigation is going on and nobody has been arrested. They were asked to call on the telephone number of Unit No.6 on the next day. On the next day i.e. on 7.11.2004 Chandrakant met Advocate R.K.Singh and was told that his brother was not involved in any case so far. Then Advocates again contacted Mr. Lohar on 8.11.2004 and were told that the accused persons have been arrested and would be produced before the Esplanade Court. The said two advocates therefore, appeared for three accused on 8.11.2004 at 9.00 to 9.30 p.m. The accused were granted police custody. j) It is the prosecution case that on 7.11.2004 when P.I. Nagesh Lohar was on duty at around 5.p.m., a reliable informant came to the unit of Crime Branch and informed P.I. Lohar that some associates of a gangster :16: Chhota Rajan (absconding accused) were staying in Girgaon area and that they had planned to kill one businessman in that locality. P.I. Lohar decided to communicate this information to his staff and asked them to assemble at 5.30a.m. on the next day morning as the informant had further told him that he was working on the information and would confirm the information on the early morning of the next day. That on 8.11.2004, at about 5.00a.m., the informant again arrived at the office of P.I. Lohar and supplied further information that about five members of Chota Rajan Gang were residing in Girgaon and were possessing lethal weapons and the name of one of the member was Mr.Bapu. P.I. Lohar called the officers and staff who were present in the office and told them that they would have to act upon the information. He told one of his constables, Gaikwad, to go and bring two respectable panchas. According to P.W.No.1- Hiro Khatri, on 8.11.2004 at about 5.15 a.m. he had gone to visit Shankar temple at Chembur. When he emerged from the temple at about 5.30a.m. one constable approached him and told him that he was required to act as a panch and he agreed to act as a panch and therefore, he was taken to the office of Crime Branch at Chembur. There he was introduced by the constable to P.I. Lohar who in turn introduced him to other police officers namely P.W.No.36 API Raut, P.W.No.35 PSI Jadhav, PSI Gade and others. He was also introduced to an informant. He was told that 4 to 5 :17: goondas of Chhota Rajan"s gang were residing in Girgaon and that a raid was to be conducted. Another panch had also come there. That, thereafter, the police party, informant and the two panchas comprising of about 22 persons started from Chembur in two vehicles, one of which was a Gypsy and the other was a private Sumo. They first went to Kandewadi Police Chowki. From there, a smaller party consisting of P.I. Lohar, Panch Hiro , PSI Sunil Jadhav, went ahead and were led by the informant to a building named Ambika Niwas which was situated at a short distance from Khandewadi Police chowki. The informant pointed out a road facing room on the first floor and thereafter immediately left the place. P.I. Lohar asked P.W.No.1 Hiro Khatri and PSI to wait there and went back to Kandewadi Police Chowki to bring the other police staff. k) As the P.I. Lohar and others were returning back towards Ambika Niwas, P.W.No.35 Sunil Jadhav and Panch Hiro went ahead. They climbed the stair case and reached the first floor and found that the door of the flat was half open. They were listening to the conversation within, which was in Marathi. P.S.I. Jadhav heard one male voice saying the following words " As the Game was not hot Nana and Bharat Nepali were frustrated. That man is going to the office. Nilesh Paradkar had called us to the spot at 10.00a.m. He was going to come along with Ajay. So we must finish him :18: today". l) He heard another male voice saying that "we will finish him today. You cause him to fall down by firing four bullets in his chest and he will fire four five shorts in his head". By this time, P.I. Lohar had reached there at the first floor. He gave a signal to other police staff and they entered the room . They saw four persons sitting on the mat. They immediately apprehended all the four persons in the room. P.I. Lohar disclosed his identity and asked their explanation about their presence in the room. They could not give any satisfactory explanation. Each of the four persons were then searched one after another. The Accused No.1 was searched by P.W.No.38 A.P.I. Pasalwar. During the search of accused No.1 Vinod Sitaram Yadav, he found one pistol of 0.45 of Colt make tucked on the right side waist portion of his pant. On opening its magazine the pistol was found to contain seven live cartridges. A cell phone was found in the shirt pocket of accused No.4 Vinod Yadav. A.P.I. Pasalwar asked accused No.1 to give its telephone no. and therefore, accused No.1 disclosed his number as 9819862417. A.P.I. Pasalwar opened the cell phone and removed the sim card. In the pant pocket of accused No.4-Vinod, 13 live cartridges having inscription of 0.45 were found. In the same pocket, he found a chit with some mobile phone numbers. He also found two colour photocopies of the photographs :19: of one person and on the reverse side of the said photo copy some numbers and words BMW Neela (blue), Lexus 25, 123 Kala (black)". Thereafter P.W.No.39 P.I. Lohar conducted the search of accused No.2 Vishwanath. On the right side of his waist of pant he found a .38 bore revolver of Smith and Wesson company. On opening the revolver, he found that six