Case: Nilesh Dinkar Paradkar Vs. State Of Maharashtra

The accused Nos. 1, 2, 3 and5 are active members of the organized crime syndicate of Chhota Rajan. Accused No. 4 has aided, abetted and conspired with accused Nos. 1, 2, 3 and 5 in commission of various offences punishable under the MCOC Act. It had come to the notice of the police that there was a conspiracy to eliminate a prominent businessman of Mumbai, namely Bharat Shah. The plan was to kill him at the pan shop near `Mehta Bhuvan. The office of Bharat Shah is situated at `Mehta Bhuvan, Charni Road, Mumbai. In order to successfully carry out the assassination, movements of Bharat Shah were kept under close watch. His office timings were communicated to these accused through telephone no. 0060133402008 by Bharat Nepali. The information about the conspiracy was received on or before 14th October, 2004 by D.C.P. (Detection), Mr. Dhananjay Dattatraya Kamlakar, PW-42 from his sources. He was informed that gangster Chhota Rajan, his gang members, and Bharat Nepali were communicating with the associates and other members of their syndicate on the aforesaid telephone number. According to the information of PW-42, the telephone number was of Malaysian origin. Although, the aforesaid telephone number was under surveillance of P.S.I. Vijay Dalvi (PW-17) since 1st October, 2004, on receipt of the definite information with regard to the conspiracy, a request was put up to the Additional Chief Secretary (Home) seeking permission to intercept the aforesaid telephone number. The request was made on 14th October, 2004 and it was approved on 20th October, 2004.4. Although the tapping of the aforesaid telephone had been officially approved since 20th October, 2004, P.S.I. Dalvi (PW-17) did not hear any worthwhile conversation till 28th October, 2004. On that day, he intercepted and recorded a conversation on the aforesaid telephone number. According to the prosecution, this was a conversation between the absconding accused Bharat Nepali on one hand and the accused Nos. 1, 2 and 5 on the other hand. The duration of the conversation recorded was of 9.16 minutes. The recorded conversation revealed a conspiracy to spread terror in the Dawood group in Mumbai. The conversation was also about the nature of the weapons to be used; the manner in which the assassination was to be carried out; behaviour of the assassin in the completion of the alleged crime; use of the weapons, i.e., one being .45 revolver and the other three being .38 bore revolver. The conversation on the telephone having been recorded, PW-17 noted the date and time of the cassette. He took the cassette to the senior officer, D.C.P. Kamlakar, PW-42. On receipt of cassette, D.C.P. Kamlakar played the cassette and heard the details about the conspiracy.5. It is further the case of the prosecution that five accused and Bharat Nepali have contacted each other on their respective cell phones. The entire conspiracy was hatched on the cell phones. The police had, therefore, obtained printouts of the cell phones of the accused from the concerned telephone companies.The numbers of those cell phones of the accused were as follows:-Accused No.19819861417Accused No.2981924029738096524Accused No.39890299354Accused No.438950501Accused No.59892849523989236759698922964969892295687Bharat Nepali (absconding accused)00601334020086. It appears that Amit Dalvi, accused No. 4 had rented a flat on Leave and Licence basis, on the first floor of a building known as `Ambika Niwas, Girgaum (Mumbai). The room had been taken in the name of Sachin Patil. The Leave and Licence agreement was signed on 17th October, 2004. All the accused were regularly using the aforesaid premises.7. On 7th November, 2004, P.I. Nagesh Lohar received some reliable information at about 5.00 p.m. that members of Chhota Rajan gang were staying in Girgaum area. He was also informed that they had planned to kill a prominent businessman in the locality (Bharat Shah) on the directions of Bharat Nepali, who was the henchman of Chhota Rajan. The Police Inspector Lohar communicated this information to his staff and asked them to assemble at 5.30 a.m. on the next day morning as the informant had told him that he was working on the information and will confirm the same only next morning. On 8th November, 2004, the informant again arrived at the office of P.I. Lohar at about 5.00 a.m. and supplied further information. He stated that about five members of the Chhota Rajan gang were residing in Girgaum and they were in possession of lethal weapons. Name of one of the members was Mr. Bapu, accused No. 1.8. Police Inspector, 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 the Constable Gaikwad, to go and bring two respectable Panchas. Consequently, PW-1, Hiro Khatri was joined as a Panch witness. He was introduced to the police party as well as the informant. He was told the purpose of raid and why the police party has assembled. On 8th November, 2004, raid was duly conducted at the rented premises. They reached first floor and found the door of the flat was half open. Standing next to the door, P.S.I. Jadhav listened to the conversation within the flat. He had heard one male voice saying the followingthe game was not hot, Nana and Bharat Nepali were frustrated. That man is going to the office. Nilesh Paradkar (A5) had called us to the spot at 10.00 a.m. He was going to come along with Ajay. So we must finish him today." 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 shots in his head.In the mean time, P.I. Lohar also reached the first floor and on signal being given, they entered the room. All the four accused persons were sitting on the mat. They were immediately apprehended. P.I., Lohar disclosed his identity and asked for explanation about their presence in the room. They could not give any satisfactory explanation. Each of the four persons were then searched.10. Accused No.1 was searched by A.P.I. Pasalwar, PW-38. The search of accused No.1 revealed that he was in possession of one pistol of .45 bore of Colt make which was 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 also recovered from the shirt pocket of A1. On being asked, he disclosed his telephone number as 9819862417. A.P.I. Pasalwar opened the cell phone and removed the sim card. On further search of this accused, 13 live cartridges with inscription of .45 were found from the trouser pocket of this accused. The pocket also contained a chit with some mobile phone numbers. The accused was also having two colour photocopies of the photographs of an individual. On the reverse side of the photocopies, some numbers and words BMW Neela (blue), Lexus 25, 123 Kala (black) were written. Search was also conducted of A2, which led to the recovery of .38 bore revolver of Smith and Wesson Company. It had six chambers of the pistol loaded with six live cartridges. One blue colour cell phone of Nokia company model 2100 was recovered from the shirt pocket. His leather wallet also contained a chit with mobile numbers. He was also carrying color photocopies of photograph of same person. In this photocopy, face of the person was encircled. On the reverse side of the said photographs, words were written in Devnagari script "Charni road station javal, Mehta Bhuvan". He also disclosed his cell phone number as 9819240297. Similar search of accused No.3 produced .38 bore revolver kept into left side of his pant waist. The revolver was of Smith and Wesson make. It had five chambers loaded with five live cartridges. He was also carrying a silver colour cell phone of Nokia company. This accused disclosed his mobile number as 9890299354. This accused was also carrying a chit with names and phone numbers of Bharat Nepali, Balu Dhokare, Visha and Bapu. He was also carrying photocopies of the colour photograph of the same person as the one found with accused Nos. 1 and 2. Under the photocopy car No. BMW MH01 T125 was written. It also carried the same words `Mehta Bhuvan, Opera House. The search of accused No.4 similarly produced a cell phone and photograph and the chit. Number of other articles were also recovered lying in the rented room. The four accused were arrested and brought to the police station.11. Thereafter formalities of registration of crime under DCB CID were completed. CR No. 258 of 2004 was registered with V.P. Road Police Station, Mumbai for offences punishable under Sections 302, 115, 120 (B) of IPC and under Section 3, 7, and 25 of the Arms Act. Thereafter, approval was also granted on 20th November, 2004 to apply the provisions of MCOC Act.12. On 25th November, 2004, accused No.2, Vishwanath Jadhav and accused No.4, Amit Dalvi voluntarily made statements before the I.O. Valishetty indicating their willingness to make confession statements. It appears that first part of the confession of accused No.4 was recorded on 29th November, 2004 and the second part on 1st December, 2004. Similarly, the confessional statement of accused No. 2, Vishwanath Jadhav was recorded on 30th November, 2004 and on 1st December, 2004. On 7th December, 2004 the identification parade was held in so far as the accused Nos. 1, 2, 3 and 4 were concerned, PW-2 and PW-12 identified accused No. 4 as the person, who had been seen by them during the time of grant of lease and licence in respect of the rented room in `Ambika Niwas belonging to mother of PW-2. Both the confession statements were denied by A2 and A4 on 17th December, 2004 on the ground that it had been obtained under duress and threats that their family members would be falsely involved as accused in the crime.13. On verification of the sim cards of the accused, it was found that only the sim cards of accused No. 4 stood in his own name. The sim cards allegedly belonging to accused No.2 Vishwanath stood in the name of one Sandeep Mhatre and Ayub Bakar. The names of sim card holders in the cell phones recovered from accused Nos. 3 and 5 were not brought on record. The record also indicates that the print out in respect of telephone No. 9892367596 allegedly used by the appellant, i.e., accused No.5 was received by the police on or about 14th January, 2005. The print out indicates that at about 5.55 p.m., there was a call of about 9.16 minutes on the telephone. The number was allegedly used by absconding accused Bharat Nepali. The print out of Cell No. 0060133402008 was forwarded to the police by the BSNL by letter dated 18th January, 2005(Ex.71). This print out also confirms that there was a telephone conversation at 5.55 p.m. on 28th January, 2004 of about 9.15 minutes. The number mentioned there was that of the appellant.14. We may now briefly notice the further facts as brought on record by the prosecution. On 15th January, 2005, PW-41, A.C.P. Vinayak Kadam asked PW-42, D.C.P. (Detection), Mr. Kamlakar as to whether he had intercepted any communication on telephone number 0060133402008. On 17th January, 2005, Mr. Kamlakar, D.C.P. (Detection), PW-42 asked P.S.I. Dalvi, PW-17 to handover the sealed cassette to A.C.P. Kadam on 18th January, 2005. The sealed cassettes were duly handed over to A.C.P. Kadam on 18th January, 2005. A.C.P Kadam was aware that A.C.P. Tejasingh Chavan, PW-18 had arrested absconding accused Bharat Nepali on 11th February, 1997. He was also aware that Jagdish Kulkarni, PW-19 had earlier arrested the appellant on 2nd March, 2002. The Cassette was, therefore, duly played in the presence of Panchas and the aforesaid police officers. In this manner, the voice test identification was stated to have been conducted. The voice was also said to have been identified as belonging to the appellant and to absconding accused Bharat Nepali by PW-18, ACP Tejasingh Chavan and PW-19, Jagdish Kulkarni. It is also the case of the prosecution that A.P.I. Raut, who was Investigating Officer, identified the voice of A2, Vishwanath Jadhav. A.P.I. Pasalwar, PW-38, is stated to have identified the voice of accused Vinod (A1). The Panchnama was duly prepared.Transcript of the conversation incorporated in the Panchnama (Ex.45) was proved through Panch Anil Shukla, PW-11.15. It is further the case of the prosecution that the appellant was arrested on 30th March, 2005 in connection with another case registered at Nerul Police Station. His custody was duly transferred to the present case on 12th April, 2005. After obtaining the custody, a further identification parade was held on 16th April, 2005 in respect of the appellant. It is a matter of record that Vithal Saliyan, PW-7 was the only witness, who was put up as an identification witness. This witness duly identified the appellant as the person who used to visit `Zunka Bhakar Stall, situated near the office of the victim, Mr. Bharat Shah. It is however, noteworthy that this witness could not identify the appellant in Court.16. It is further the case of the prosecution that on 13th May, 2005, the appellant made a voluntary statement to the effect that he had concealed the revolver in Sawantwadi Town in District Sindhudurga. According to the prosecution, the appellant led the police to the house where his cousin sister Afroza was staying. Behind the south side of the house, he dug out a weapon which was kept in a plastic bag and buried in the soil. The revolver so discovered was a .38 bore revolver. It was seized and wrapped in a plastic cover sealed by the police. On completion of the investigation, the Commissioner of Police granted sanction for prosecution of appellant on 6th July, 2005. On receipt of the sanction, additional charge sheet was filed against the appellant on 7th July, 2005.17. In due course, charges were framed against all the accused on 8th December, 2005 under relevant provisions of MCOC Act, IPC, and Arms Act. Since all the accused had pleaded not guilty, they were all put on trial.18. The Trial Court convicted all the five accused asCharge 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)(iii) 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 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.120-B 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.5,000/- (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 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 RI 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.From the above, it is evident that the trial court acquitted the appellant, herein of charges under Section 3 read with Section 25 of the Indian Arms Act.20. The aforesaid judgment and order of conviction and sentence was challenged by the accused Nos. 1 and 3 in Criminal Appeal No. 1040 of 2006, by accused No.5 (appellant herein) in Criminal Appeal No. 1044 of 2006, by accused No.4 in Criminal Appeal No. 1048 of 2006 and by accused No.2 in Criminal Appeal No. 1049 of 2006.21. All the appeals were heard together and disposed off by a common judgment dated 21st August, 2008. The High Court was pleased to allow the appeals of original accused Nos. 1, 2, 3 and 4. They were acquitted of all the charges leveled against them. However, the appeal filed by the appellant was dismissed by confirming the conviction and sentence awarded by the Special Court. It may also be noteworthy here that the acquittal of appellant under Section 3 read with Section 25 of the Arms Act was not challenged by the prosecution/State. Therefore, the findings and acquittal regarding the same have become final and binding.22. Aggrieved by the judgment of the High Court in Criminal Appeal No. 1044 of 2006, the appellant has filed the present special leave petition.

Reasoning:
25. We are of the considered opinion that there is much merit in the submissions made by Mr. Naphade. While acquitting accused Nos. 1 to 4, the High Court recorded that the defence had succeeded in creating a grave doubt about the veracity of search and seizure alleged to have taken place on 8th November, 2004. This conclusion has been reached by the High Court on appreciation of the evidence on the record. The High Court disbelieved the prosecution version with regard to the entire sequence of events leading to the raid.In our opinion, these conclusions recorded by the High Court have destroyed the entire substratum of the prosecution case. Having disbelieved the entire prosecution version, the High Court proceeds to distinguish the case of the appellant. The only additional circumstance relied upon by the High Court against the appellant is that his voice was identified by the officer Jagdish Kulkarni, PW-19, who had taken him in custody. The voice of Bharat Nepali was also identified by PW-18, A.C.P. Tejasingh Chavan.28. We are of the considered opinion that the approach adopted by the High Court was wholly erroneous. Having disbelieved the voice identification in the case of accused Nos. 1 and 2, there was no reason to adopt a different yardstick in the case of the appellant herein. The High Court discarded the evidence of PW-36, A.P.I. Dilip Raut and PW-38, A.P.I. Pasalkar mainly on the ground that they were accompanying the raiding party on 8th November, 2004 and had not heard the voice of accused Nos. 1 and 2 prior thereto. Another reason given by the High Court is that these officers being members of the investigating team were interested in successful completion of the investigation. But the same yardstick was not applied to the voice identification of absconding accused Bharat Nepali by Tejasingh Chavan, PW-18. He was also attached to DCP CID when the present offence was registered. He would, therefore, also be equally interested in successful completion of the investigation.In our opinion, the High Court has failed to take into consideration any of the precautions indicated above in accepting the evidence of Tejasingh Chavan, PW-18 and Jagdish Kulkarni, PW-19 with regard to the identification of Bharat Nepali and the appellant. The High Court, in our opinion, has given a wholly erroneous justification by holding that the voice of both the accused are distinctive, clear and identifiable. It is further observed that the conversation between the two accused is not a short conversation as in the case of accused Nos. 1 and 2. The High Court was also influenced by the fact that accused Bharat Nepali was in the custody of Tejasingh Chavan, PW-18 for a period of two weeks. Similarly, appellant was in the custody of Jagdish Kulkarni, PW-19 for a substantial period of time. Therefore, their voice identification was held to be reliable. This reasoning of the High Court is a mere repetition of the reasons given by the trial court.34. We are of the considered opinion that there is hardly any distinction in the evidence with regard to the voice identification of accused Nos. 1 and 2 on the one hand and Bharat Nepali and the appellant on the other hand.35. In our opinion, the voice test identification by PW-19, Jagdish Kulkarni is even otherwise unreliable. The voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It is a matter of fact that PW-19, Jagdish Kulkarni was informed in advance that he had to identify the voice of the appellant. Similarly, PW-18 was informed that he had to identify the voice of Bharat Nepali. No attempt was made even to mix the voices of Bharat Nepali and the appellant with some other unidentified voices. In such circumstances, the voice identification evidence would have little value. It appears that the exercise was performed only for the record.36. This apart, there is no evidence on record to indicate that the mobile No. 0060133402008 was that of the absconding accused Bharat Nepali. There is also no evidence to indicate that he was using said number except voice identification by Tejasingh Chavan, PW-18. There is no other material on the record to connect the absconding accused Bharat Nepali with the number allegedly used by him. Similarly, there is nothing on the record to indicate that the appellant was having or using any of the following mobile number:- 9892849523, 9892367596, 9892296496 and 9892295687.This apart, the High Court erroneously overlooked the infirmities in the evidence with regard to the authenticity of the tape recording produced in Court. The conversation between the appellant and Bharat Nepali was said to have been recorded on 28th October, 2004 by PW-17, P.S.I. Vijay Dalvi. According to him, although, he had been monitoring the Malaysian number of Bharat Nepali from 1st October, 2004 till 27th October, 2004, he had heard no incoming or outgoing calls. The incriminating conversation was said to have been recorded on 28th October, 2004. This conversation was relayed to a police telephone and recorded. He put a slip on the recorded cassette indicating the date and time of the conversation as recorded. He then handed the tape over to the D.C.P., Dhananjay Kamlakar. He heard the tape on the same day. Even though the conversation revealed a conspiracy for commission of a serious offence, like murder of an influential personality in Mumbai city, he took no further action. He just sealed the tape and kept it in his personal custody.In our opinion, the veracity of the voice identification would not improve merely because a recording has been made after receiving official approval. The crucial identification was of the voice of the person talking on the tape. We are of the considered opinion that the High Court has committed a grave error in confirming the conviction of the appellant as recorded by the trial court only on the evidence of voice identification.In view of the above, we are of the considered opinion that the appellant was entitled to the benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt.