1 cr-apeal-339-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 339 OF 2010 The State of Maharashtra ..Appellant Vs. Guddu @ Raju (1) Upendranath Satyanarayan Singh and others ..Respondents .... Mrs. M.M.Deshmukh A.P.P. for the State Mr. Satish Mishra i/b A.M.Saraogi for Respondent Nos. 1, 2, and 7 Shri. Khan Abdul Wahab for Respondent nos.3 and 4. .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. DATE : FEBRUARY 14, 2011 ORAL JUDGMENT [PER B.H.MARLAPALLE, J.]: 1 This appeal filed under Section 12 of the Maharashtra Control of Organized Crimes Act, 1999 (M.C.O.C. Act for short) is directed against the order of acquittal passed by the learned Additional Special Judge, Greater Mumbai on 10.7.2009. Initially in M.C.O.C. (Special) Case No. 16 of 2001 in all 8 accused were on trial but subsequently, the said case was split up into three more cases i.e. M.C.O.C. Special Case No. 16-A/2001, 2 cr-apeal-339-10 M.C.O.C.Special Case No. 16-B/2001 and M.C.O.C. Special Case No. 16-C/2001 and all these cases have been decided by the impugned common order of acquittal. With the consent of the parties, the appeal has been finally heard at the admission stage and record and proceedings has been perused by us. 2 As per the prosecution case, on 30.6.2001, Shri. Ajit Diwani who was connected with the film industry, was shot dead in his Chamber/ office situated in the R.T.O. Lane, 4 Bungalow Road, Andheri (W), Mumbai, at about 2.30 p.m. by three persons and in the presence of his Secretary Rupali (P.W. 27). Deepa was another person in the office of the deceased and perhaps she was a Receptionist. The third lady- Carolyne was selected and she was being briefed by the deceased in his chamber about her job responsibilities but before an appointment order was issued in her favour. All of a sudden, three persons entered the office and wanted to meet the deceased. However, Deepa insisted upon them to give their names and they disclosed that the purpose of their visit was to fix curtains in the office. When Deepa continued to insist on them to give their names, they fished out their revolvers and one of them put a revolver at her head and asked her to keep quite. Two of the accused took Deepa in the office of the deceased and one of them, after entering the office chamber, shot at the deceased and all the three, thereafter, fled 3 cr-apeal-339-10 away bolting the door of the office from outside. After sometime, the watchman of the building opened the office door in response to the call given by Deepa and subsequently, Rupali, Deepa and Carolyne came down the stairs and met Shri. Suresh Patil (P.W. 22) in the court yard of the building. It is alleged that accused no.1 Upendra and accused no.5 Saheblal Giri were present in the court yard on their Honda motorcycle. The three assailants fled away in an auto rickshaw and accused no.1 and accused no.5 went on their motorbikes. C.R. No. 39 of 2001 came to be registered on the basis of the complaint lodged by P.W. 32 Dilip Mane Police Inspector (Exh.74). P.W. 32 Dilip and P.W. 37 Abhay P.S.I. visited the building, met the watchman Badri Singh who took them to the office of the deceased and they saw the dead body in a pool of blood with the bullet injuries on head. In the search that was carried out at the spot of the incident, one empty and one lid was found. Pradip Diwani (P.W.1) the brother of the deceased arrived at the scene and inquest panchnama at Exh. 15 and spot panchnama at Exh. 17 were drawn. P.W. 37 Abhay took charge of the cell phones of the deceased, an empty lid and diaries from the scene of offence. P.W. 32 Dilip took over the investigation and recorded the statements of P.W. 27 Rupali, Shri. Suresh Patil (P.W. 22) and other acquaintances. On 7.7.2001 the investigation came to be transferred to Unit VII of the Crime Branch and P.W. 39 Pramod took over the investigation on the next day. P.W. 31 Sachin Vaze was attached to 4 cr-apeal-339-10 the Anti Extortion Cell as Assistant Police Inspector and parallel investigation of the crime in question was made by the said Cell. In the tip off, it was learnt that the crime was committed by the men of the gangster Abu Salem and some of the suspects were accused no.1 Upendranath, accused no.2 Nizammuddin, accused no.3 Akhilesh and Punit (wanted accused) and they were expected to arrive at Bandra Railway Station and thereafter a trap was laid and they came to be arrested on 8.7.2001. In the personal search of these three accused, an amount of Rs.50,000/- was found with accused no.1 and Tata Safari Car in which they were travelling, was taken in custody along with two number plates of motor vehicle. Pramod P.W. 39 Investigating Officer took charge of these three arrested accused and on 11.7.2001 Ayub Patel accused no.4 and on 27.7.2001 Saheblal Giri accused no.5 came to be arrested at Hotel Bostan at Jogeshwari (W) and Goregaon respectively. The Hero Honda motorcycle came to be taken charge of and test identification parade was held at the Arthur Road Jail in which P.W. 22 Suresh Patil identified accused no.1. The printouts of telephone calls between accused nos. 1 to 5 and Abu Salem also came to be obtained. On obtaining prior approval (Exh. 89-A), the M.C.O.C. Act was invoked and the Joint Commissioner of Police directed P.W. 38 Shri. Pote, Assistant Commissioner of Police to take up the investigation. The investigation papers were subsequently placed before P.W. 40 Shri. Paraskar, Deputy 5 cr-apeal-339-10 Commissioner of Police and sanction was obtained. On conclusion of the investigation, a charge sheet came to be filed against the accused nos. 1 to 5. Meanwhile, accused no.6 Dipu Singh was arrested in Uttar Pradesh by Kotwali Police Station and a revolver was found in his possession. His custody was obtained on 13.4.2002 and during the test identification parade, P.W. 27 Rupali identified him. His confessional statement was recorded at Exhs. 126 and 126-A and he was proceeded against by filing a separate charge sheet in M.C.O.C. Special Case No. 16-A of 2001. 3 In the year 2005, the wanted accused Abu Salem a Gangster was extradited to Mumbai and the Commissioner of Police appointed Shri. Pramod Rane (P.W.11) as the Investigating Officer. The involvement of the accused Shah Alam i.e. accused no.7 surfaced during the investigation and he was arrested on 1.2.2006. P.W.1 Santosh recorded the confessional statement of accused no.7 on 14.2.2006. On conclusion of the investigation, a charge sheet came to be filed against both Abu Salem and Shah Alam which was numbered as M.C.O.C. Special Case No. 16-B of 2001. 4 The involvement of accused Mohammed Mushir as a member of the organized crime syndicate headed by Abu Salem also surfaced during the investigation and he was arrested in Azamgarh in Uttar 6 cr-apeal-339-10 Pradesh by the Uttar Pradesh Police on 4.9.2006. On transfer of his custody and during the investigation, he was found to be an active member of the organized crimes syndicate and a separate charge sheet came to be filed against him in M.C.O.C. Special Case No. 16-C of 2001 in the Special Court. 5 Pending the trial, accused no.5 Dipu Singh was sent to Uttar Pradesh under police escort in connection with the criminal case against him and he reportedly fled from the police custody. Therefore, the trial was separated and M.C.O.C. Special Case No. 16-A of 2001 continued against five accused. He was subsequently killed in a police encounter in Uttar Pradesh. In the meanwhile, the prosecution came to be withdrawn against accused Abu Salem on account of the terms of extradition treaty. Thus, M.C.O.C. Special Case No.16-B of 2001 continued only against accused no.7 Shah Alam, whereas, M.C.O.C. Special Case No.16-A of 2001 continued against accused no.5 and M.C.O.C. Special Case No. 16- C of 2001 continued against accused no.8 Mohd. Mushir Ashraf Iraqi. All the accused pleaded not guilty to the charge framed against them and accused nos.1 to 3 claimed that they were apprehended on 4.7.2001 and not on 8.7.2001 as claimed by the prosecution. 6 In support of this charge, the prosecution examined in all 41 7 cr-apeal-339-10 witnesses in M.C.O.C. Special Case No. 16 of 2001 and M.C.O.C. Special Case No. 16-A of 2001 whereas 11 witnesses came to be examined in M.C.O.C. Special Case No. 16-B of 2001 and 16-C of 2001. Prosecution also sought to rely on the confessional statements of Dipu Singh and Shah Alam. 7 The trial Court assessed the evidence of the prosecution and considered the requirements so as to proceed against the accused for the offences punishable under the M.C.O.C. Act. It noted that at Exh. 93 were the three charge sheets filed against the discharged accused Abu Salem and the first charge sheet was in Sessions Case No. 18 of 2000 Gulshan Kumar murder case and the second charge sheet was of 1993 of Bomb Blast case. The other charge sheeted accused in the said case, was Daud Ibrahim who was said to be a kingpin. However, there was no evidence to indicate that there have been at least two charge sheets filed against any of the accused remained for the trial and for the requisite offences and in all such charge sheets, the Court concerned, had taken cognizance and sentence in these offences was three years or more. The trial Court, therefore, held that the offences in question could not be termed to be an organized crime as defined under M.C.O.C. Act. It then considered the aspect of the crime having been committed for the pecuniary benefits or any other like gain and held that there was nothing 8 cr-apeal-339-10 to indicate on record that the murder of Ajit Diwani took place for such pecuniary benefits. It considered the evidence of Shri. Vasant P.W. 10. The evidence of P.W. 10 Vasant indicated that there was one occasion, some days before the murder of Ajit Diwani, when Abu Salem had made a phone call to Ajit Diwani in the presence of P.W. 10 and he further stated that Abu Salem had abused Ajit Diwani on phone and gave threats to his life if his demand was not met. The witness further stated that no sooner Abu Salem realized his presence around, he asked him to leave. Based on one sentence that Abu Salem gave threats to life of Ajit Diwani that if his demand was not met, the prosecution claimed that Ajit Diwani was killed for pecuniary gains. However, it was not clear from the evidence of P.W. 10 whether the so called demand of Abu Salem was for pecuniary benefits or anything else. The trial Court considered that his brother had received extortion calls from abroad and this was only a hearsay evidence as he personally did not receive any call nor did he attribute such a call to Abu Salem. The trial Court, therefore, held that the requirements for the offence i.e. being the members of the organized crimes syndicate could not be established and therefore, it held that the charge under the M.C.O.C. Act would not be made out. We do not find any error in this regard, on the part of the trial Court. It rightly proceeded to frame and answer the following points; 9 cr-apeal-339-10 Sr.No Points Findings 1 Does the prosecution prove that on 30.6.2001 the deceased Ajit Diwani met with homicidal death? Yes 2 Does the prosecution prove that on or before 30.6.2001, the accused persons, the discharged accused and the wanted accused conspired to commit murder of Ajit Diwani? No 3 Does the prosecution prove that pursuant to the criminal conspiracy or in furtherance of their common intention, the accused persons committed murder of Ajit Diwani? No 4 Does the prosecution prove that accused nos.1, 2 and 3 and accused Shah Alam in furtherance of their common intention forged number plate of a motor vehicle with an intention to use the same for cheating? No 5 Does the prosecution further prove that on or before 9.7.2001 the accused nos.1 to 3 and accused Shah Alam used forged number plate of the motor vehicle knowing or having reason to believe that the number plate was forged? No 6 Does the prosecution prove that from 2.7.2001 to 8.7.2001 the accused Shah Alam harboured accused Upendranath who was involved in the offence of murder of Ajit Diwani, with an intention of screening him from legal punishment? No 10 cr-apeal-339-10 7 Does the prosecution prove that on 8.7.2001 and 9.7.2001 the accused no.1 Upendra had in his possession fire arm in contravention of the provisions of Sections 3 of the Arms Act? No 8 Does the prosecution prove that prior to June, 2001 accused Mushir had in possession fire arm and ammunition in contravention of Section 3 of the Arms Act ? No 9 Does the prosecution further prove that before June, 2001, accused Mushir had in his possession, for sale or transfer in Mumbai, fire arms and ammunition in contravention of the provisions of Section 25(1-B) of the Arms Act, 1959? No 10 Does the prosecution further prove that the offence of murder of Ajit Diwani is the offence of organized crime punishable under Section 3(1)(i) of the M.C.C.O. Act? No 11 Does the prosecution further prove that the accused persons abetted each other and conspired together to commit the organized crime punishable under Section 3(2) of the M.C.O.C.Act ? No 12 Does the prosecution further prove that the accused persons were the members of organized crime syndicate and thereby guilty of offence punishable under Section 3(4) of the M.C.O.C. Act ? No 13 What offence, if any, is proved against the accused ? No 14 What order ? As per final order. 11 cr-apeal-339-10 8 On issue no.1 it recorded a finding in the affirmative inasmuch as it upheld that Ajit Diwani met a homicidal death on 30.6.2001 in his office and during broad-day light. However, on all the other issues, the Special Court recorded findings in the negative and therefore, acquitted all the accused. It considered almost every circumstance that was pleaded by the prosecution. We are therefore, required to consider whether the findings so recorded are supported by the evidence adduced by the prosecution. It is well settled that unless there are substantial and compelling circumstances, the order of acquittal is not required to be reversed in appeal. The findings recorded on issue nos. 10 to 12 require no interference as we have already recorded our concurrence on the same. The Special Court has rightly considered the legal position and answered all these three issues in the negative. We, therefore, proceed to examine the findings only on issue nos. 1 to 9 above. 9 Regarding issue no.1, the evidence of P.W. 22 Suresh Patil and P.W.1 Lalit (brother of the deceased) has been considered by the trial Court. It was claimed by the prosecution that accused nos.1 to 5 hatched a conspiracy and though accused nos. 2 to 4 were not present along with the actual assailants at or around scene of the offence, accused nos.1 and 5 were seen in the compound of Hemangi Maheshwari building in 12 cr-apeal-339-10 which the the office of the deceased was located and therefore, as per the prosecution case accused nos.1 and 5 were guilty of offences under Section 302 and 120-B read with Section 34 of the I.P.C. So far as accused nos.1 and 5 are concerned, it was claimed by P.W.22 Suresh Patil that he was a freelancer reporter reporting for some of the Marathi newspapers like Samna, Mumbai Tarun Bharat, Ratnagiri Times and Sagar Dainik etc. He claimed that he was a friend of the deceased. P.W. 22 claimed that he had seen accused nos.1 and 5 standing in the compound of Hemangi Maheshwari building on the fateful day when he was entering the said building so as to go and meet the deceased. As per him, both of them talking amongst themselves and he had noticed one parked motorcycle near them. One of them had turned himself to look at the building and at that time, P.W. 22 had seen him. P.W. 22 also claimed that at that time moment of time when he was entering the building, he had seen three persons coming from the building and running away and those three persons had made gestures to leave to these two persons waiting and on such signaling, accused nos.1 and 5 had left on the Hero Honda motorcycle and the remaining three persons who had come from the building, had left in one auto rickshaw. He also claimed that he went upstairs and met Deepa and one more girl and was told by Deepa that three assailants shot Ajit Diwani dead. Both the girls were frightened. He along with those two girls left the place rather than going 13 cr-apeal-339-10 upstairs and straight went to his house at Worli Koliwada. He did not share experience or knowledge with anybody and on the next day when he read the news about the murder of Ajit Diwani, he went to the Oshiwara Police Station and reported what he had experienced/seen. P.W.22 claimed to have identified accused nos.1 and 5 before the Court as those who had left on the motorcycle in the Court as well as in the test identification parade held in Arthur Road Jail and conducted by P.W. 26. This witness has been disbelieved by the trial Court as his conduct was not natural and did not inspire confidence. If he was a friend of the deceased, on getting the news that his friend was shot dead, he would have gone to the office, seen the friend and called the police more so, when he was known to be a journalist. He did not do anything till next day and even after he got the news from Deepa, he straight way went to his house. In our opinion, the trial Court was justified in discarding this witness as unnatural and unreliable. Even before the Court, when he was called upon to identify the accused no.1, he had claimed accused no.3 as accused no.1 and then he corrected himself. At the same time, it was also brought to the notice of the Court by accused nos. 2 and 3 that P.W. 22 had assaulted them while they were in the custody of the Crime Branch. It had also come in the evidence of P.W. 26 that the test identification parade was conducted after one and half months of the arrest of accused nos.1 and 5. The fact also reveals that neither P.W. 14 cr-apeal-339-10 22 nor P.W. 27 could identify accused nos. 2 to 4 as the assailants. The prosecution itself claimed that accused nos.2 to 4 were not present along with accused nos.1 and 5 or the actual assailants at the scene of offence or in the compound of the Hemangi Maheshwari building when the incident had taken place. P.W. 27 had seen the assailants entering the office of the deceased but she could not identify these actual assailants. 10 It was claimed by the prosecution that accused nos.1 to 3 were arrested on 8.7.2001 on a tip off received that the suspects in Ajit Diwani murder case were likely to come at Bandra Railway Station by 10.30 p.m. It was further claimed that raiding party was posted at Bandra Railway Station and at about 10.55 p.m. a vehicle (Tata Safari) which was named in the tip off, arrived at and the raiding party arrested accused nos.1 to 3 by P.W. 31. Prosecution also claimed that the pistol containing two live cartridges and bundle of Rs. 50,000/- currency notes, Nokia cell phone with the BPIL sim card of the number 9821179032 along with a diary containing the names of film personalities including that of the deceased were recovered. The search of the accused was taken and two number plates of the same number were found in the Car. The trial Court rightly falsified the claim of the prosecution that accused nos.1 to 3 were arrested on 8.7.2001 by analyzing the evidence of the prosecution itself. The trial Court rightly held that accused nos.1 to 3 were taken in custody 15 cr-apeal-339-10 on 4.7.2001 itself. P.W. 16 Shahabuddin brother of accused no.2 testified before the Court that accused no.2 was arrested on 4.7.2001 and his Tata Safari Car was taken into custody by the police. The said vehicle initially belonged to P.W. 9 and it was subsequently sold to accused no.2. The trial Court called the prosecution case that accused no.1 to 3 arrested on 8.7.2001 as a bluff. Even the number plates which were claimed to have been recovered from the vehicle, did not have any holes at its ends and the possibility of the police officers taking up the number plates of some other vehicles or getting them prepared, could not be ruled out. 11 The trial Court considered the evidence of P.W. 24, P.W. 25, P.W. 2 Vijay pancha witness, P.W. 39 Pramod, P.W. 3, P.W. 4, P.W. 5, P.W.6, P.W. 18, P.W. 12, P.W. 14, P.W. 19, P.W. 20, P.W. 38, P.W. 39, P.W. 24, P.W. 25, P.W. 20 and P.W. 34 and considered all the circumstances including the circumstance of telephone contacts. P.W. 34 Vikas was the Nodal Officer working with Vodafone Essar. P.W. 35 Arjun was a Deputy General Manager from Videsh Sanchar Nigam Ltd. P.W. 36 was the Officer from B.P.L. The computerized print outs at Exh. 81, Exh. 85 and Exh. 86 were proved through the evidence of these witnesses. The trial Court held that the Investigating Officer did not highlight the telephone numbers of any of the accused which were claimed to be in contact with the cell phone of the deceased. It also noted 16 cr-apeal-339-10 that the prosecution never claimed about any accused having been in touch with the deceased on cell phones. These printouts could not support the prosecution case regarding the complicity of any of the accused in causing the murder of Ajit Diwani. P.W. 10 Vasant Sharma had deposed about the cell phone conversation of Abu Salem, but none of these printouts indicated that there was any specific link between any such communication and the incident. None of the calls were intercepted at any time. 12 Regarding the accused no.4, P.W. 8, P.W. 10, P.W. 11, P.W. 15, P.W. 21 and P.W. 39 were the witnesses examined in relation to his arrest. He was arrested on 11.7.2001 at Bandra under the arrest panchnama Exh. 54. By examining P.W. 8 Kishor, the prosecution tried to bring on record that accused no.4 had a telephone contact with Abu Salem. The trial Court held that there was no evidence to indicate that accused no.4 had made a call from the telephone booth pointed out by P.W. 8 Kishor and therefore, the statement recorded of accused no.4 under Section 37 of the Evidence Act, had no relevance. On the other hand, P.W. 15 Gulam the owner of the Telephone booth clearly denied that accused no.4 had been to his booth to make any international call at any time prior to the date of the incident. Accused no.3 was the person who was simply picked up as he was found in the company of accused 17 cr-apeal-339-10 nos. 1 and 2 and this was the inference drawn from the evidence of P.W. 24 Kanhyaiyalal, P.W. 25 Krishna, P.W. 7 Virendra and P.W. 31 Sachin. 13 P.W. 6 Vallabbhai was the ex-employer of accused no.5 Saheblal. He stated before the trial Court that on 1.7.2001 Saheblal left his Here Honda motorcycle with him and left for his native place which was picked up by the police later on. From the evidence of P.W. 4 prosecution at the most, proved that