Nilesh Dinkar Paradkar vs State Of Maharashtra

3. According to the prosecution, accused Nos. 1, 2, 3 and 5 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 2 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 3 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 4 .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:-

6. 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 6 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.

Number of other articles were also recovered lying in the rented room. The four accused were arrested and brought to the police station.

12. On 25th November, 2004, accused No.2, Vishwanath Jadhav and accused No.4, Amit Dalvi voluntarily made statements before the I.O. Valishetty 11 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.

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 14 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.

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 16 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.

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/-

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.

direct or circumstantial.

Similarly, appellant was in the custody of Jagdish Kulkarni, PW-19 for a substantial period of time.

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.

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:-

43. 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.

Consequently, the appeal is allowed. The appellant is acquitted of all the charges levelled against him.

The conviction and sentence imposed by the trial court and confirmed by the High Court are quashed and set aside. The appellant shall be set at liberty forthwith unless wanted in any other case.

March 9, 2011.