ejaz ladkawala gang extortion case mcoca special court judgement

Judgment 1 MCOC Pl. Case No.2/12.

IN THE COURT OF SPECIAL JUDGE DESIGNATED UNDER MCOC ACTAT GR. MUMBAI.

MCOC SPECIAL CASE NO. 2 OF 2012

The State at the instance of DCB CIDMumbai C.R.No.86/11(J.J.Marg PoliceStn.C.R.No.138/11) ... Complainant

V/s.1. Riyaz Ahmad Hussain Shaikh @ BhaijiAge : 47 years.R/o : A1 Tower Hill Park, Flat No.1204, Agrawal Estate, Jogeshwari,(W)Mumbai.

2. Nilesh William Jatanna @ AnnuAge : 28 years.R/o: Dahisar Cheknaka, Raikar Wadi,Room No.66. Dist. Thane.

3. Prashant Prasad Rao @ SunnyAge: 37 years.R/o: Mira Gaon, Munish Compound,Behind Dr. Khan's Clinic, Opp.AmishPark, Kashmira, DistThane.

4. Mohammad Jafar Esak Madhwala @ ChachaAge: 61 years.R/o: Rizwan Apartment, A20, Ground Floor,Room no.1, Amrut Nagar, Jogeshwari (W),Mumbai102.

5. Zakariya Bashir Khan @ Jiko @ SalimAge: 44 years.R/o: Zopada no.5, Mahim Darga Mohalla,Backside of Akram Terrace building,Mahim, Mumbai16. ....Accused

...2/


Mr. D.M. Shah Learned Special P.P. for the State/Complainant.Mr. Sejpal Learned Advocate for accused no.1.Mr. Manerkar Learned Advocate for accused no.2 and 4.Mr. Taraq Sayyed Learned Advocate for accused no.3Mr. Ware Learned Advocate for accused no.5.

Offences: U/sec. 307, 120(B) r/w 387 of IPC, 506 PartII r/w sec. 387, 34 of IPC, 3 r/w 25 of the Arms Act, 37/135 of the B.P. Act, 3(1)(ii), 3(2),3(4) of MCOC Act, 1999.

CORAM: HIS HONOUR THE SPECIAL JUDGE SHRI P.R. Deshmukh.

JUDGMENT (DELIVERED ON 17 th November, 2014)

1. Unfolded case of prosecution is as follows.

2. Nirbhan Construction Company dealing in construction business is

situated at Kamruddin Street, Nagpada Mumbai. Akram Nirbhan is

proprietor of the Company. One Sohel Khan was working as real Estate

Agent at Nirbhan Construction. On 1/10/2011, at about 12.30 p.m., Sohel

Khan reached to Nirbhan Construction Company and was at reception

office with father of Akram Nirbhan. When they were discussing, Sohel

noticed his client Sagir Ahmed passing from Road. He was stopped by

Sohel and were discussing on account of cheque due from him towards

Nirbhan Construction. When their discussion was going on, Sohel noticed

two persons coming towards him on red coloured motorbike from Moulana

...3/


Shoukat Ali Road. Both were staring at him. All of sudden person who was

pillion rider took out fire arm pistol and by pointing out towards him fired

three rounds of bullet. He avoided two rounds but one bullet hit at his leg

thereby causing bleeding injury. He immediately raised voice by saying

“Pakado Pakado Goli Mara”. By hearing such shout of Sohel after firing,

they both by pointing out fire arms towards public ran away from

Dimtimkar Road.

3. Employee of Nirbhan Construction namely Nabeel took injured

Sohel to J.J. Hospital where he was treated and operated. Ultimately on

the basis of statement of injured Sohel, FIR as per C.R.No.138/2011 for

offences under section 307, r/w 34 of IPC and 3/25, 27 of Arms Act came

to be registered at J.J. Marg Police Station against two unknown persons.

4. As per story of prosecution, second incident took place on

14/10/2011 when investigation of aforesaid C.R.No.138/2011 was going

on. Crime Branch UnitIII received information that accused were in the

way to reach in Nagpada area with some fire arms. Senior Police Inspector

Prashant Marde deputed a team of UnitIII for arranging trap as per secret

information. ASI Chalke, API Tawade and PI Dhanawade alongwith other

police staff arranged trap near BMC Beat Chowki at Nagpada area. Police

team noticed three persons passing from BMC Beat Chowki. They were

intercepted by police team. Personal search of those three persons was

taken in presence of panch witnesses. Police found four fire arms namely

pistols and nine live cartridges in possession of those three persons. In

...4/


interrogation, they told their names as accused no.1,2 and 3. After seizure

of weapons and articles on spot, accused and articles were taken to

Nagpada Police Station and LAC No.2220/2011 for offence under section

3/25 of Arms Act was registered and as per C.R.No.35/2011 by Criminal

Detection Branch further investigation was handed over to Crime Branch

UnitIII. Meantime C.R.No.138/2011 of J.J. Marg Police Station was also

handed over to Crime Branch UnitIII as per order of A.C.P. (Crime) dated

19/10/2011. During interrogation with arrested accused nos. 1 to 3 other

accused nos. 4 and 5 came to be arrested on 10/11/2011 and 13/11/2011

respectively having seen their involvement in commission of crime.

5. During interrogation with accused Prashant Rao, he gave

memorandum statement about discovery of Nokia Mobile from his house

Miragaon. As per his memorandum statement in presence of panch

witnesses, Mobile hand set of Nokia company came to be seized under

panchanama. Similarly as per memorandum and seizure panchanama,

two mobile hand sets of Micromax and L.G. companies came to be seized

at the instance of accused Zakariya Bashir Khan @ Jiko. Blood stained

shirt and jeans pant came to be seized from injured Sohel as per seizure

panchanama. Blood stained soil, two empty cartridges, one live cartridge

came to be seized from spot of firing incident in presence of pancha

witnesses. Photographs(5) of spot of firing incident were taken with the

help of photographer Ahmed Kaji on 1/10/2011. During the course of

investigation medical examination report of injured Sohel who had

received bullet injury in the incident came to be collected.

...5/


6. During further course of investigation and interrogation with

proprietor of Nirbhan Construction namely Akram, it was revealed to

police that on 9/9/2011, there was threat of extortion to him from Ejaj

Lakadawala from Abroad on his mobile phone demanding extortion money

Rs. Three Crores. It is allegation against accused nos. 1 to 3 that on the

say of said Ejaj Lakadawala who is leader of Organized Crime Syndicate

initially they inspected site of Nirbhan Construction and as Mohd. Akram

did not fulfill demand of ransom amount, ultimately accused Nilesh and

Prashant Rao on 29/9/2011 had been to Nirbhan Construction site for

firing and creating terror in the mind of Mohd. Akram, but did not succeed

on account of lot of persons present at the site on that day. However,

ultimately on 1/10/2011, accused Nilesh and Prashant Rao succeeded in

the firing incident in which Sohel received bullet injury at the hands of

accused Prashant Rao who was pillion rider with Nilesh on motorbike

which was driven by accused Nilesh.

7. As per further story of prosecution on next day of firing incident i.e.

on 2/10/2011, Mohd. Akram Nirbhan received four SMS of threatening

call on his mobile from Ejaj Lakadawala threatening him of death if his

demand is not fulfilled. On third day of incident, Ejaj Lakadawala by

giving phone call to Mohd. Akram Nirbhan reduced his demand from Rs.

three Crores to Rs. one and half Crores. However, by saying that his

business is newly started, he is not in position to pay said huge amount,

refused to pay the ransom to Ejaj Lakadawala.

...6/


8. On the basis of aforesaid information supplied by Mohd. Akram

Nirbhan on whose site incident of firing dated 1/10/2011 was taken place

in which his Estate agent Sohel was injured, further investigation

connecting role of Ejaj Lakadawala in the firing incident on the basis of

SIM cards used by arrested accused nos. 1 to 3 prior, during and after the

incident collected call details, CDR and print out from Airtel, Aircel,

Vodafone, Idea, Reliance, Uninor, and Loop Companies and subscribers in

whose name seized mobiles were registered in the aforesaid companies.

9. During further investigation with the help of Executive Magistrate

(Tahasildar), Test Identification Parade(T.I. Parade) about identification of

accused no. 1 to 3 was conducted in which they were identified by injured

witness namely Sohel Khan who had injured in firing incident and eye

witness Sohel. And also four witnesses in whose presence fire arms and

articles were seized on 14/10/2011. During interrogation with accused

no.2 and 3, they showed willingness to give confession before DCP as per

section 18 of MCOC Act. Their confessional statements came to be

recorded and statement under uection 164 of Cr.P.C. of witness Mohd.

Akram Nirbhan and Jignesh Pandya also came to be recorded by producing

them before Metropolitan Magistrate.

10. After collecting material in respect of both incident and on the basis

of information given by Mohd. Akram Nirbhan and documentary evidence

collected from Nodal officer as stated above, police came to be conclusion

that accused nos. 1 to 5 are active members of Organized Crime Syndicate

...7/


headed by Ejaj Lakadawala and as per his say and direction, they were

continuing unlawful activities like threatening and demanding ransom

amount from builders. And on the say of their leader of Syndicate Ejaj

Lakadawala accused nos. 2 and 3 committed incident of firing dated

1/10/2011. Accused nos.1 to 3 were found with firm arms and live

cartridges as per trap dated 14/10/2011. And all such activities committed

by accused nos. 1 to 5 are under head of Ejaj Lakadawala who had

threaten Mohd. Akram Nirbhan by putting him in fear of death to extort

money from him. Police while completing next part of investigation

collected copies of chargesheet in which Ejaj Lakadawala being leader of

Crime Syndicate was involved in similar nature of offences prior to present

incident and he alongwith others are facing two criminal cases filed

against him and others at A.C.M.M. Court No. 37 Killa Court, Mumbai and

before designated MCOC Court for offences under section 387, r/w 34 @

offences, under Arms and MCOC Act.

11. In due course all investigation papers were submitted to Joint

Commissioner of Police initially for grant of approval for invoking

provision of MCOC Act as per section 23(1)(a) MCOC Act in C.R.No.

86/2011 and having given approval and completing investigation under

MCOC Act sanction under section 23(2) of the Act to prosecute arrested

accused nos.1 to 5 was obtained from Commissioner of Police Mumbai.

Ultimately on the basis of material collected in investigation viz.

confessional statement of accused nos. 2 and 3, seized fire arms and

articles from accused nos.1 to 3, call details obtained from Nodal officers,

...8/


statement of two witnesses recorded under uection 164 of Cr.P.C. and after

getting sanction from Commissioner of Police, accused nos. 1 to 5

alongwith absconding accused no.1 to 3 came to be chargesheeted before

this Court for trial.

12. In due course of trial, my Learned Predecessor framed charge Ex.31

against accused nos. 1 to 5 on 30/11/2013 for above mentioned offences

under IPC, Arms Act, Bombay Police Act and MCOC Act. As per plea

recorded at Ex.32 to 36, accused pleaded not guilty and claimed to be

tried. Defence of accused is that of total denial and false implication.

13. To prove allegations levelled against accused in respect of two

incident dated 1/10/2011 and 14/10/2011 together with conspiracy for

commission of offence, prosecution examined in all 36 witnesses. To have

proper discussion of evidence and marshaling of evidence, it is divided into

VI different groups as per details in reasoning.

14. Incriminating material came on record in the evidence of 36

prosecution witnesses explained to accused while recording their

statements under section 313 of Cr.P.C. vide Ex.32 to 36. They replied to

all questions put to them as per their defence of false implication. None of

the accused examined himself nor lead any defence evidence.

15. As such on above stated facts, following points arise for my

determination and I have given my findings to each of them for below

...9/


mentioned reasons.

POINTS FINDINGS

1. Does prosecution prove that accused nos. 1 to 5 alongwith wanted accused nos. 1 to 3 before 1st of October, 2011 at Brihan Mumbai agreed to do illegal acts to wit to commit extortion of Rupees Three Crores by extending threats to kill Mohammad Akram Nirbhan a builder by profession and in pursuance of the aforesaid agreement on or about 1/10/2011 at about 14.45 hrs. at the construction site office of Nirbhan Construction Company, situated at Shaikh Burhan Qamruddin Street (Teli Mohhala), Nagpada, Mumbai 400 008, and accused no.2 drove red coloured motorcycle bearing registration No.MH04EN4263 and accused no.3 opened fire with a pistol towards Sohail @ Soney Abdul Majid Khan, working as a commission agent of Mohammad Akram Nirbhan and thereby committed an offence punishable under section 120(B) r/w 387 of Indian Penal Code.

Proved against A1, A2 & A3 u/sec. 120(B)

r/w 387 of IPC.

2. Does the prosecution further prove that accused nos. 1 to 5 and wanted accused nos. 1 to 3 in furtherance of their common intention and pursuant to the criminal conspiracy committed criminal intimidation by threatening to kill Mohammad Akram Nirbha, a builder in order to commit extortion of Rupees Three Crores and thereby committed the offence punishable under section 506 PartII r/w sec. 387, 34 of Indian Penal Code.

Proved against A3

u/sec. 506(II)r/w 387,34 of

IPC.

...10/


3. Does the prosecution further prove that accused nos. 2 and 3 in pursuance to the aforesaid criminal conspiracy and in furtherance of their common intention with all accused nos. 1 to 5 and wanted accused nos. 1 to 3 on 1st of October, 2011 at about 14.45 hrs. and accused no.3 opened fire towards Sohail @ Sony Abdul Majid Khan, commission agent of Mohammad Akram Nirbhan, with such an intention and knowledge and under such circumstances that if by that act you had caused and death of aforesaid Sohail @ Sony Abdul Majid Khan, you would have been guilty of murder and in that you accused caused hurt to the aforesaid Sohail @ Sony Abdul Majid Khan and thereby committed an offence punishable under section 307 r/w 120(B) or in the alternative r/w.34 of Indian Penal Code.

Proved against A2 & A3

u/sec. 307 r/w 120(B) of IPC.

4. Does the prosecution prove that accused no.3 on the same date, time and place in pursuance of the aforesaid criminal conspiracy and in furtherance of his common intention with rest of the accused and the wanted accused did possess a fire arm and ammunition to wit a countrymade pistol and cartridges without licence as required under the Arms Act and the rules made there under and thereby committed an offence punishable under section 3 r/w 25 of the Arms Act, r/w 120(B) of Indian Penal Code. Proved

...11/


5. Does the prosecution prove that on the same time and place you accused no.2 and 3 did posses the aforesaid countrymade pistol and ammunitions and thereby contravened Order No.CP/XI(6)/JVP/L, W/702(9)2011 dated 19/9/2011 issued by the Dy. Commissioner of Police (Operations) Mumbai in exercise office power u/s.37 of the Bombay Police Act and thereby committed an offence punishable under section 135 of the Bombay Police Act. Proved

6. Does the prosecution prove that accused nos. 1 to 5 alongwith wanted accused nos. 1 to 3 sometime before 1st October, 2011 at Greater Mumbai, being the member of an organized crime syndicate headed by wanted accused no.1 Ejaj Lakadawala @ Ajju conspired to continue unlawful activities and to commit organized crime to wit to threaten Mohammad Akram Nirbhan a builder by profession that he would be killed if a demand of extortion of Rupees Three Crores is not fulfilled and made an attempt on the life of Sohail Khan working as his commission agent with an object of gaining pecuniary advantage or to get undue economic benefit and thereby committed an offence punishable under section 3(1)(ii) of the Maharashtra Control of Organised Crime Act, 1999.

7. Does the prosecution prove that accused nos. 1 to 5 alongwith wanted accused nos. 1 to 3 conspired and/or attempted to commit and/or abetted an organized crime to wit

Proved against A1, A2 & A3

...12/


extended threats to kill Mohammad Akram Nirban for extortion of Rupees Three Crores and thereby committed an offence punishable under section 3(2) of the Maharashtra Control of Organised Crime Act, 1999.


8. Does the prosecution proves that accused nos. 1 to 5 and wanted accused nos. 1 to 3 are members of an organized crime syndicate of which wanted accused no.1 Ejaj Lakadawala @ Ajju is the head and thereby committed an offence punishable under section 3(4) of the Maharashtra Control of Organised Crime Act,1999.


REASONS

Group I

Incident dated 1/10/2011

To prove incident dated 1/10/2011 prosecution examined in all

eight witnesses

PW1 (Name hidden) on seizure of clothes of injured Panchanama Ex.44

PW2 Sohel Abdul Majid Khan,injured and on FIR Ex.46.

PW14 Abdul Majid on spot cum seizure panchanama Ex.129.

PW21 Ahmed Ansari on seizure of motorbike and key Ex.162.

PW23 Dr. Vatsala Katke on medical certificate Ex.167 & 168.

PW24 Ahmad Kazi, Photographer, of spot of (Article 30).

PW27 Sohel Dalvi, eyewitness to the incident.

PW34 ASI, Kailas Bondre, on FIR Ex.46 and 46A.

...13/


Group II

Incident dated 14/10/2011.

To prove incident prosecution Examined 3 witnesses

PW11 Sameer Qureshi, Panch witness to panchanama Ex.112,

PW28 API Vinod Tawade member of team leading to trap of A1 to 3.

PW35 PI Dhanawade, incharge of leading team of trap.

Group – III

Test Identification Parade

To prove T.I. Parade Ex.153 prosecution examined 3 witnesses

PW2 Sohel Khan, Complainant.

PW27 Sohel Dalvi, eyewitness.

PW19 Bhagwan Arjun, Nayab Tahsildar.

Group IV

On confession of A 2 Ex.184 & 186, prosecution examined following three

witness

PW28 API Vinod Tawade

PW29 DCP, Keshav Patil.

PW32 PSI Anant Jadhav.

On confession of A3 Ex.137 and 138, prosecution examined following

three witnesses

PW16 DCP Kishor Jadhav,

PW25 PSI Subhana Naik. attached to Crime Branch UnitIII.

PW26 PI Nitin Potdar attached to A.T.S.

...14/


PW12 Jignesh Pandya is also on point of eyewitness of mobile

number of accused no.1 who has also given statement u/sec. 164of Cr.P.C.

Ex.125 before Magistrate. PW15 (Name hidden) on phone call and threat

byhead of CrimeSyndicate Ejaj Lakadawala. He has also given statement

u/sec.164 of Cr.P.C. before Magistrate.

Group – V

Evidence about Mobile & CDR print out

PW4 (Name hidden) on memorandum and seizure given by A3, Ex.52.

PW11 Sameer Qureshi, on seizure of mobile from A1& A3 on the date

of incident dated 14/10/2011.

Nodal Officers examined from PW5 to PW10 and 31of companies

namely India Cellular, Aircel Ltd, Loop, Vodafone, Reliance, Bharti

Airtel Ltd. and Uninor.

Group – VI

Evidence of investigating officers

PW20 DCP Ms.Sharada Raul, on sanctioned order of A3 Ex.158 of fire

arms.

PW30 Arup Patnaik, Commissioner of Police on sanctioned order Ex.193.

PW35 PI Dhanawade (I.O. Ist)

PW36 ACP Vatkar. (I.O. IInd)

...15/


GroupI

Incident dated 1/10/2011.

16. To prove the incident, there is oral evidence of PW2 injured Sohel

Khan and independent witness PW27 Sohel Dalvi. Injured Sohel Khan in

his testimony in chief examination gave evidence before the Court that he

was working as Estate agent with proprietor of Nirbhan Construction

(PW15 Akram Nirbhan) and on the day of incident had been to site of

Nirbhan Construction which is at Shaikh Burhan Kamruddin Street at

about 12.30 p.m.. Initially there was talk between him and father of

Akram Nirbhan in the passage of office. At about 2.30 p.m. by seeing their

client Sagir Ahmed he came out of the office and at the relevant time was

discussing about cheque due from said Sagir to Nirbhan Construction. He

within a 23 minutes of start of their discussion noticed two persons on red

colour motorbike coming towards him from Moulana Shoukat Ali Road.

Both were staring at him. Pillion rider whipped out a firearm (Pistol) and

fired three rounds towards him. He saved from two rounds. However, one

bullet hit as his left leg causing bleeding injury. He immediately raised

shout calling public but by that time both persons by pointing out weapon

towards public ran away from spot. While adducing evidence, he

identified accused Prashant Rao(A3) who was pillion rider on motorbike

and fired three bullet rounds towards him and accused Nilesh (A2) who

was ridding bike at the time of incident.

17. Aforesaid oral evidence adduced by injured Sohel Khan is mostly

challenged by A3. He admitted in cross examination that going out of the

...16/


office to meet Sagir was spontaneous action on his part. There was no

fixed time to go for work every day and he had no idea as to whom he was

going to meet on that day at the office of Nirbhan Construction. It is his

version that he noticed motorbike in the midst of his conversation with

Sagir and at that time he was near side across the road. According to him,

entire incident took place within ten seconds and first bullet was fired

upon him within a two second of his noticing accused. He also admitted

that assailants were at his right hand side when first bullet was fired and

bike passed in front of him when it was at the distance of ten feet. He

also admitted that assailant was pointing his weapon towards his chest

while firing three shots.

18. On the basis of aforesaid testimony of injured, it is say of Learned

Spl. P.P. that so far as testimony of injured Sohel Khan is concerned, it is

supported to the prosecution to prove his FIR Ex.46 which is within a

period of one hour as FIR is registered at 15.15 p.m. According to him,

whatsoever material brought on record by defence in his cross examination

is nothing but elaborated piece of fact of incident of firing i.e. coming out

of the office by noticing Sagir. As per his submission such admission in

cross examination is spontaneous and most natural one. According to

prosecution, defence also brought on record one more admission from his

testimony that in amidst of conversation with Sagir injured noticed

motorbike. Learned Advocate for A3 on the basis of certain elaborated

answer brought on record about actual incident in cross examination

submitted that ankle injury is absolutely not possible. To appreciate such

...17/


point of argument about testimony of injured, it is also necessary to see

what is evidence of eyewitness PW27.

19. According to PW27 Sohel Dalvi, on the day of incident, he was

standing in front of Doctor's clinic where he was working at that time and

time was about 2.30. p.m. He saw one motorbike of red colour having one

pillion rider. Nirbhan Construction office is just in front of his clinic.

Injured Sohel Khan resides at adjacent galli of said dispensary. Therefore

he knows him and also that he was working with Nirbhan Builder. As per

his version in chief examination, said motorbike just stopped by side where

he was standing and person who was pillion rider took out pistol and fired

it at Sohel Khan who received one bullet on his left leg feet. His testimony

is challenged by A3 by giving suggestion that entire incident took place

within 23 minutes and he has seen injury sustained to Sohel Khan which

was on toe of left leg. It is also his version that assailant was in front of

injured. To the specific suggestion as to whether assailant was trying to kill

the injured, his answer was that there was no intention of assailant to kill

him. In rest of cross examination, defence has brought on record situation

of office of Nirbhan Construction which according to him just exact

opposite to clinic and he has seen the incident which occurred just in front

of Nirbhan Construction site office which is at 15 feet distance from his

clinic.

20. As both A2 and A3 alleged author of incident dated 1/10/2011

were unknown to PW27. As per his statement U/sec. 161 of Cr.P.C.,

...18/


prosecution led evidence about description of both A2 and A3 for purpose

of identification and whatsoever description stated by him in statement

U/sec. 161 of Cr.P.C. is deposed by him in chief examination. So far as

other part of identification of A2 and A3 by him on the basis of T.I.

Parade held in Aurther Road Jail and before Court he identified both A2

and A3 as bike driver and pillion rider and specific role of A3 in firing

incident. As he has identified motorbike article28 used in incident by A2

and A3, he was cross examined by defence specifically A3 by bringing on

record omission i.e. not stating description of motorbike and it's number in

statement U/sec. 161 of Cr.P.C. There is also substantial cross examination

about necessity of keeping vehicle number involved in such type of

incident in the mind and memory and supplying it to police immediately

and omission on his part by not giving number of motorbike while

statement U/sec. 161 of Cr.P.C. and giving it to police in supplementary

statement dated 14/12/2011. When evidence of eyewitness was silent

about number of motorbike, defence in cross examination brought on

record material to the effect that when he gave statement to the police, he

was knowing that said motorbike was seen by him on the day of incident.

Not only that by giving specific suggestion, defence has brought on record

motorbike number MH04EN4263 used in incident and stated by him in

cross examination. This material evidence of injured Sohel Khan and

eyewitness Sohel Dalvi needs to be appreciated with other part of their

evidence which is in nature of seizure of clothes of injured, evidence about

injuries sustained to Sohel Khan and corresponding medical evidence

available on record.

...19/


21. It is say of injured Sohel Khan in cross examination that assailant

was on right hand side when first bullet was fired. When first bullet was

fired he immediately took action to save himself. Entire incident took

place within ten seconds. He did not go to duck walk position after first

shot. It is also his version that he was standing there on spot facing

towards office of Nirbhan Construction and motorbike did not stop, but

was moving in very slow speed when firing incident took place. It is also

his version in cross examination that when motorbike passed in front of

him, there was distance of about ten feet in between him and motorbike.

He admitted suggestion of defence that assailants by point outing weapon

towards his chest fired three shots and he received one bullet on his left

leg.

22. PW27 eyewitness Sohel Dalvi deposed that he was standing on the

spot facing towards Nirbhan Construction and firing took place two times

from motorbike which came on spot from his left side having two persons

on it and in said firing, injured Sohel Khan received bullet at his left leg

feet. Defence cross examined him on situation of spot i.e. site of Nirbhan

Construction and its office from his dispensary in front of which he was

standing. According to him, incident took place at distance of five feet

from site of office of Nirbhan Construction and his dispensary is at distance

of fifteen feet from site office of Nirbhan Construction. In his further

evidence in cross examination, it is his version that entire incident took

place within 23 minutes and he had seen injury sustained to injured.

When it was a simple version of injured PW2 and this eyewitness PW27

...20/


that bullet injury was received on left leg feet of PW2, in para no.13 of

cross examination of this PW27, defence has brought on record knowledge

of this witness about understanding of thigh, leg feet and toe. It is because

in his statement U/sec. 161 of Cr.P.C. before Police, he had stated that

injured has received bullet injury above feet of left leg by naming said part

of leg as toe. He was also cross examined by defence about his knowledge

in respect of pistol and revolver, to the same he sated that he has never

hold revolver or pistol and can not tell how pistol looks like. However, it is

his say that he can identify weapon like revolver or pistol as per his

knowledge from Movie and New paper.

23. Aforesaid evidence brought on record in testimony of injured and

eyewitness Sohel Dalvi is tried to be contradicted by defence on the basis

of medical evidence which has come on record from mouth of Dr.

Ms.Vatsala Katke(PW23). As per her testimony before Court on the basis

of medical certificate Ex.168 which is issued on the basis of MLC registered

Ex.167, injury sustained to PW2 was bullet injury on left ankle near

medial malleolus. During the course of argument, Learned Advocate for

A3 on the basis of above circumstances of spot brought on record in the

evidence of PW2 and 27 and specifically that injured and assailants were

facing each other assailants were on motorbike and injured was standing

and assailants were aiming towards chest of injured coming from his right

side, possibility of causing injury at left leg toe is not possible. It is also

because PW23 in cross examination admitted that injury mentioned in

certificate Ex.168 is not possible, if assailant is facing towards injured. It

...21/


is true that Doctor who is expert for giving possibility of sustaining injury

on particular part of injured from specific direction of the side of assailants

but that being mere opinion of expert same needs to be appreciated with

other material evidence and in the present case, evidence of injured and

eyewitness PW27 Sohel Dalvi. Oral evidence of injured and eyewitness in

respect of incident can not be brushed aside on the basis of possibility of

sustaining injury or merely on count of surmise and on basis of certain

admission given by the witnesses. It is also because other corroborative

evidence also needs to be appreciated having connection with the incident

in question. And therefore evidence available on record in respect of

seizure of clothes of injured, bullet and cartridges seized from spot of

incident and corresponding evidence of FSL and opinion about seized

articles given by Analyst expert needs to be appreciated.

24. As per evidence of panch of seizure panchanama of shirt and jeans

pant wore by injured (PW1) Ex.44 in his presence articleA & B are seized.

Jeans pant was of black colour and left part of leg of jeans pant having two

hole with blood stains. His testimony is not challenged by any of the

accused. Jeans pant article1B as per evidence of PW34 was produced

before him by PC – 28207 Nilesh Salunke and those clothes were seized as

per panchanama Ex.44 by him i.e. PW1. Muddemal register entry is taken

as per no.112/11 vide Ex.203 (extract of muddemal register). Though

PW34 was cross examined on other aspect of his evidence, so far as

seizure of clothes as per panchanama Ex.44 by him and corresponding

entry in muddemal register vide Ex.203 giving corroboration to evidence

...22/


of PW1 went unchallenged.

25. During course of argument, Learned Advocate for A3 by drawing

my attention towards folded lower portion of jeans pant article1B and

hole of bullet to articleB vehemently argued about nonpossibility of such

nature of injury and hole to the folded portion of jeans pant and so also

blood stain of inner part of jeans pant of left leg and also right leg of jeans

pant. While appreciating submission made by Learned Advocate for A3

about hole sustained to the jeans pant and blood stains on both legs,

material came on record in para no.11 of cross examination needs to be

appreciated rather than going on hypothetical and surmise. It is version to

PW2 in para no.11 that he is not in habit of wearing torn clothes so also

wearing a pant folding it. He admitted that article1B was not torn when

it was taken away by police, as it seems now. When his attention was

brought to torn position of jeans pant article1B, he gave specific answer

that it was not so folded when it was given to police. Ahead he deposed

that he himself had folded bottom of jeans pant without removing it and

thereafter surgical operation was performed in the Hospital. It was folded

in the Hospital before the operation. It is also his say that he had folded

said portion in order to avoid it from getting spoiled with blood stain. By

giving suggestion to him by showing blood stains on both right and left

portion of article1B, it has brought on record by defence that blood stains

are visible after second fold and blood stains are also seen inside the jeans

pant on right leg portion.

...23/


26. On the basis of such material brought on record from mouth of

injured Sohel, it is say of Learned Advocate for A3 that when bullet injury

was sustained only on the ankle of left leg and when article1B was

seized, it was not folded one and when it was produced before the Court, it

is folded one having blood stains on both legs of jeans pant, possibility of

tampering can not be ruled out. While appreciating above stated material

came on record in cross examination of PW2 in the context in which

argument is advanced by Learned Advocate for A3, one important thing

can not be forgotten that as per panchanama Ex.44, Jeans pant was

seized. It was seized and forwarded to FSL for examining blood stains as

well as hole sustained to article1B as to whether it was due to bullet

firing, together with bullet and pistols seized from A1,A2 and A3. And

therefore I am of view that further connecting evidence while appreciating

submissions of Learned Advocate of A3 also needs to be considered and it

is in the nature of report of Chemical Analysis (FSL) which is on record as

per Ex.231 through forwarding letter Ex.225 which are produced on

record by prosecution through evidence of PW36.

27. Before going to discuss documentary evidence in respect of Scientific

Expert namely FSL connecting evidence in the nature of spot panchanama

also needs to be looked into. From the mouth of PW14 prosecution placed

on record circumstances of spot vide Ex.129. As per testimony of PW14,

while adducing spot panchanama (of incident dated 1/10/2011) police

seized one live cartridge (bullet) and 2 empty cartridges marked as

article3,4 and 5. It is also his version that blood stained soil was collected

...24/


and all articles were seized and sealed on the spot including left foot

chappal. Spot panchanama Ex.129 is also having sketch showing actual

place where all four articles were lying on spot. Panchanama shows that

photographs of spot were also taken and to place on record. Prosecution

examined photographer PW24 who has drawn five photographs as per

article30. As per testimony of photographer, those were drawn through

digital camera. He identified photographs article30 which were handed

over to PSI Jagdale. There is no material challenge to oral evidence of spot

pancha PW14 and photographer PW24. On perusal of five photographs

article30 in reference to sketch which is attached with Ex.129, it is seen

that on spot left foot chappal is seen alongwith three cartridges and one

photograph of blood stain on ground. When there is no material challenge

to oral testimony of PW1, seizure of clothes of injured, PW14 panch of

spot panchanama in whose presence aforesaid live cartridge and two

empty cartridges together with chappal and blood stain soil were seized

and photographs drawn by photographer including evidence of

photographer to prove circumstances on spot, I am of view that direct

evidence is supported by circumstances on spot and in nature of

panchanama and articles seized gives corroboration to oral and direct

evidence of injured PW2, eyewitness PW27 and to some extent Dr. PW23,

so far as proof of incident dated 1/10/2011 is concerned.

28. Now to connect live and empty cartridges seized from spot of

incident through blood stain jeans pant article1B to the injured,

according to prosecution, there is seizure of fire arm from accused nos.1 to

...25/


3 as per trap of second incident dated 14/10/2011. So even before going

to scientific expert report (FSL) Ex.231, it is necessary to see evidence of

PW11 from whom panchanama Ex.112 is proved by prosecution. Baring

evidence of panch witness PW11 so far as second incident dated

14/10/2011, there is evidence of PW28 and first I.O. PW35 who were

heading the trap which was arranged on 14/10/2011. While making

discussion about incident dated 1/10/2011 limited evidence adduced by

PW11 needs to be considered which directly touches to seizure of fire

arms seized from A2 and A3. On perusal of testimony of PW11 which is

in consonance with contents of Ex.112 personal search of all three accused

in presence of PW11, it is sufficient to say that as per panchanama Ex.112

and oral testimony of PW11 before Court from A2 Nilesh, baring other

articles Pistol article 7 and two cartridges came to be seized while as from

A3 Prashant Rao Pistol article9 and three cartridges were seized. So far

as seizure of aforesaid articles from A2 and A3, his testimony is

challenged by accused by giving suggestion that suspects were standing in

one line and officer informed him that their search was to be effected. So

also that cartridges which are present before the Court for purpose of

identification were having same condition when they were seized at the

time of panchanama. He admitted that no receipt was given to accused

when articles were seized from them.

29. On behalf of both accused nos. 2 and 3, certain suggestions were

given to him about condition of articles when those were shown to him

before the Court and condition of those articles when those were seized as

...26/


there was time gap in between two on account of sending articles for

Chemical Analysis. Defence also tried to bring on record material like

polythene in which articles are produced before the Court as at the time of

seizure those were kept in cardboard before sealing it. Admittedly, as per

story of prosecution informant had given secret information to police about

passing of accused from spot where they were trapped, but said informant

is not examined. However, as per argument advanced by Spl. P.P. in

support of independent witness PW11, there is testimony of PW28 who

was accompanied with head of trap namely first IO PW35 Mr. Dhanawade.

So after going through corresponding oral evidence adduced by both

PW28 and 35 in reference to testimony of pancha witness PW11 so far as

seizure of fire arm and cartridges there is sufficient material placed on

record by prosecution to have some basis to connect said seizure to

incident dated 1/10/2011, of course with the evidence of Scientific Expert

in the nature of FSL report Ex.231.

30. Though Learned Advocate for A1 to A3 during the course of

argument submitted that prosecution simply placed on record FSL report

Ex.231 but failed to establish link right from forwarding seized articles

from Police Station to FSL and viceversa. However, such is not correct

position. As per material available on record, PW35 who is first IO gave

evidence about arranging trap on accused dated 14/10/2011, seizure of

fire arm and ammunition shown in panchanama Ex.112 and registration of

LAC No.2220/2011 at Nagpada Police Station which is subsequently

transferred to DCB CID as LAC no.35/11 regarding seizure of all articles at

...27/


the time of trap. There is specific evidence of PW35 which is corroborated

by PW11 independent panch witness. As per evidence of PW36, aforesaid

seized fire arm and ammunition were forwarded to FSL under his

signature as per forwarding letter Ex.225 and in due course, they received

FSL report which is filed on record with chargesheet from page 103 to 117

which is at Ex.231. So on the basis of aforesaid evidence brought on

record by prosecution right from seizure of fire arm and ammunition from

accused nos. 1 to 3 as per panchanama Ex.112 to prove said seizure and

forwarding articles to FSL till receiving FSL report Ex.231, there is oral

evidence to PW11, PW35 and PW36. And such sort of oral and

documentary evidence in view of provision of section 293 of Cr.P.C. (FSL

report Ex.231) may be used as evidence in the present case without asking

further proof from prosecution.

31. As per Ex.225 forwarding letter to FSL dated 15/10/2011 seized

articles as per panchanama Ex.44 were submitted to Forensic Lab and as

per Ex.232 dated 18/10/2011, arms and ammunition which are seized as

per panchanama Ex.112 were forwarded to Scientific Expert for

examination. Ex.231 is the report of FSL about articles of both incident

forwarded to the Forensic Lab for examination. It is collectively as per

pages 103 to 117 of Ex.231. Result of Analysis of jeans pant article 4A

shows that it is stained with blood on back side of human origin having

blood group inconclusive (Page 107). As per Page 117, on examination of

Ex.1, one copper jacketed bullet having brushing marks (of injured Sohel)

is fired from 7.65 mm pistol Ex.4 which is article9 as per panchanama Ex.

...28/


112 (Seized from A3). So far as incident dated 1/10/2011, this much

result of Analysis of corresponding Pistol seized from A3, bullet which was

taken out from left leg ankle of injured Sohel is sufficient to prove

connecting link of incident right from firing till FSL report, so far as

incident dated 1/10/2011 baring other findings of analysis which is having

connection with second incident dated 14/10/2011.

32. Then comes next piece of evidence that is motorbike used by A2

and A3 during commission of firing incident. Admittedly, when injured

PW2 was examined by prosecution, motorbike article28 was not

produced before Court. It is first time produced during evidence of PW21.

As per evidence of PW21 panch of memorandum U/sec. 27 of evidence

Act and seizure of motorbike thereafter as per panchanama Ex.162, A2

Nilesh as per memorandum statement took him and police to Miraroad

and discovered red colour Pulsar Company bike which was concealed

under the building of Miraroad and it was seized under seizure

panchanama Ex.162. As per his testimony, after discovery of motorbike,

A2 Nilesh went to adjacent house and gave call to his brother who

thereafter came to Police and as per direction of A2 Nilesh, gave key of

motorbike (article27). Both article27 & 28 were identified by PW21

before Court.

33. Defence in his cross examination brought material to the effect that

he was not knowing the building where accused took them. Accused gave

name of said building. So far as memorandum statement given by

...29/


accused Ex.161, in cross examination he stated that A2 gave confession in

his presence to police which was reduced by police and thereafter he

signed before proceeding to Miraroad. So far as colour of motorbike

article28, he admitted that it is having red colour as well as black colour

and it is not only of red or black colour but combination of both, however

according to him motorbike seized is same. So far as seizure of key which

was produced by his brother, in cross examination he stated that person

from whom key was brought from ground floor having some office like

room and accused who led to said person did not talk with that person

from whom key was seized. In cross examination, it is his specific version

that there is no identification mark on the key like his signature or label on

it. But he says that key article27 is the same key which was seized when

motorbike was discovered as per panchanama. It may be noted that

motorbike was produced before the Court after evidence of eyewitness

PW2. Neither prosecution nor defence recalled PW2 for purpose of

identification of motorbike article 28. However, PW27 who is eyewitness

identified motorbike article28, during his chief examination by saying that

it is the same motorbike which was used by A2 on that day. About

identification of motorbike, the same suggestion were given to him by

defence that motorbike before Court is of red colour and it can also be

called as red and black colour. In cross examination, defence himself

brought on record certain identification mark of motorbike that at backside

of motorbike there was identification like “07” written at mudguard of

backside.

...30/


34. He was substantially cross examined on behalf of A3 about number

of motorbike seen by him on the day of incident and according to him,

when he gave statement to the police that he had given number of

motorbike as MH 04 EN 4263. He was confronted with number of

motorbike mentioned in his supplementary statement which is KH 01 EN

4263. So far as production of motorbike (during evidence of PW21) at

belated stage, it is evidence of first IO PW35 that motorbike was kept in

dumping yard and as per letter issued by Sr.P.I. UnitIII dated 16/05/2012

filed on record with extract of station diary entry alongwith production of

motorbike before Court as per letter dated 17/07/2014 (Ex.216). PW35

was cross examined by defence about the variation of make of motorbike

which is mentioned in FIR i.e. Unicorn motorbike.

35. During the course of argument, Learned Advocate for A2 and A3

vehemently argued about description of motorbike given in FIR Ex.46 and

46A about make of motorbike having red colour only and contents of

seizure panchanama Ex.162 wherein description of motorbike is given that

red colour Bajaj Pulser having no.MH 04 EN 4263. In reference to above

discussed direct oral evidence of witnesses including delay of production of

motorbike before the Court again while appreciating this piece of evidence

i.e. motorbike and key seized by police during investigation and produced

before the Court through above referred prosecution witnesses, I am of the

view that this one piece of evidence can not be considered isolation. Of

course, to prove incident dated 1/10/2011, all above discussed evidence

which is in the nature of oral evidence and seizure of articles on account of

...31/


injured witness and eyewitness having corroboration through Scientific

evidence needs to be appreciated conjointly to give finding as to whether

prosecution proved incident dated 1/10/2011.

36. Even before appreciating above discussed different part of evidence,

again there remains evidence as to identification of A2 and A3 with their

specific role while committing incident dated 1/10/2011. There is direct

evidence of injured Sohel as well as eyewitness Sohel so far as role of both

in incident (PW2 and 27 respectively). They both in there direct evidence

while adducing before the Court identified A2 as driving motorbike at the

time of incident and A3 firing three bullets from Pistol. So far as presence

of injured Sohel on spot it is his testimony that he was working as Estate

Agent with Nirbhan Builder and on the day of incident by noticing Sagir,

he came out of the office and his coming out of the office is spontaneous

action on his part, his visit to the office was not for any specific purpose

and there was also no fixed time to attend the office every day. He had

also not informed anybody about his visit to said office on that day. On the

basis of such material came on record in cross examination, it is argued by

Learned Advocate for A3 that accused were not knowing about PW2's

presence in the office. He had no enmity with either accused or Ejaj

Lakadawala and therefore, there was absolutely no reason for accused to

fire PW2. It is also say of defence that when there was demand of

extortion amount from Akram Nirbhan (PW15) by Ejaj Lakadawala and

when his father was present on the site, firing would have been made by

targeting father of PW15.

...32/


37. While appreciating such submissions of defence, fact can not be over

looked that even as per material brought on record by defence in the

evidence of PW27 that there was no intention of killing of PW2, as bullet

was not fired on chest as both injured and assailants were facing each

other therefore from such material brought on record on behalf of defence

in the evidence of PW2 and PW27, one thing which is clearly seen that

while committing act of firing neither accused was aiming to any particular

person like Akram or his father as argued by defence. So in my view,

presence of PW2 injured on spot is very natural one and coming out of the

office by seeing Sagir is spontaneous and very natural.

38. On perusal of memorandum panchanama of T.I. Parade Ex.153, it is

seen that out of five witnesses except witness Salauddin who is not

identified by A2, all others have identified A2 and A3 during their

parade amongst five witnesses. As stated above, PW2 and PW27 are

examined by prosecution who identified both A2 and A3 with their

specific role in incident dated 1/10/2011. To corroborate evidence of PW2

and PW27 ,there is evidence of PW19 SEO who conducted T.I. Parade and

who is author of memorandum of panchanama Ex.153. Procedure

conducted by PW19 while performing T.I. Parade is challenged by A2 and

A3 on some material grounds. First amongst them is some portion

language written in Ex.153 viz “Amhi Panch ani Nayab Tahsildar” (Page 31

of memorandum) “Nayab Tahsildar Sahebani Suraksha Rakshkas

Sangitale” Page32, “Sahebani Firyadi yas Swatakade bolaun ghetle” Page

41. Having mention such writing in Ex.153 according to defence when

...33/


PW19 was author of it such things should not have been mention and

therefore doubt was created on holding T.I. Parade by defence. Secondly

on account of admission of PW19 that while conducting T.I. Parade, rough

note was prepared but not filed on record according to defence goes

against prosecution. He did not receive FIR, panchanama and other

investigating papers before proceeding to Jail except letter given by

Collector is another lapse on part of SEO. So also that there was no other

documents with him when he proceeded to Jail. There is also substantial

cross examination about body features including body built of dummy

persons and their facial description with accused.

39. After going through such and other material came on record in cross

examination of PW19 question is whether holding of T.I. Parade can be

doubted. Though there are certain latches in holding T.I. Parade of PW19

so far as identification of A2 and A3 as author of incident dated

1/10/2011, I am of view that there is direct evidence before the Court that

of both Sohels that they saw both A2 and A3 on the spot, including their

specific role. So in such a case their identification in T.I. Parade becomes

secondary. At the same time when there is positive evidence about

identification of A2 and A3 by PW2 and PW27 before Court having

corroboration from PW19 SEO, merely on the basis of some lacuna/lapses

on the part of SEO PW19 about holding T.I. Parade of both A2 and A3

evidence of all three PWs can not be discarded so far as incident dated

1/10/11 is concerned.

...34/


40. Then comes a last piece of evidence which is in the nature of

confession of A2 Ex.184 and 186 recorded by PW29 DCP Keshav Patil

(ZoneIV) and that of confession of A3 Ex.137 and 138 recorded by PW16

DCP Kishor Jadhav(ZoneIII). To prove confession of both A2 and A3,

there is evidence of PW28 and PW32 in support of Ex.184 and 186 and

that of witness PW25 and PW26 to give corroboration to PW16. It is true

that A2 on the same day when his confession was recorded by PW29 gave

statement before C.M.M. retracting his confession vide Ex.190 and A3 by

forwarding letter Ex.3 to this Court dated 27/06/2012 by stating therein

that confession was extracted by threat and pressure to release him on

bail. Prosecution opposed Ex.3. A3 submitted by their reply Ex.3 on the

ground of delay and that of ulterior motive. Evidence of above stated

witnesses produced on record in proof of confession including above stated

part of retraction on part of accused will have to be considered while

appreciating it to prove whole case of prosecution as per charge. However,

so far as incident dated 1/10/2011 is concerned, both accused gave

admission on commission of incident dated 1/10/2011 with their specific

role as alleged by prosecution. So by taking only that much material from

confession of both accused without going into much merit and demerit of

confession of both accused at this relevant stage, it is suffice to say that

part of confession relating to incident dated 1/10/2011 supported the

prosecution to prove chain of evidence.

41. So while giving finding to prove the incident dated 1/10/2011 on

basis of above discussed evidence by way of summary, it can be said that

...35/


by examining total 8 witnesses, prosecution tried to establish involvement

of A2 and A3 in the incident dated 1/10/11. Injured Sohel Khan and

eyewitness Sohel Dalvi gave direct evidence about firing incident against

both of them including specific role of each accused in the incident stated

above. They both identified A2 and A3 before the Court to support

prosecution on the basis of their identification through T.I. Parade which is

conducted by PW19. Seizure of clothes of injured, bullet recovered from

body of injured, empty cartridges and other articles seized from spot and

supportive evidence of Doctor is also there to support prosecution. Such

piece of evidence can not be discarded merely on account of some

admission given by either injured or eyewitness or even by Doctor as

discussed in relevant para of judgment.

42. Next piece of evidence is FSL report which connects bullet recovered

from left leg of injured to the pistol seized from A3 who did firing as per

case of prosecution. Above discussed evidence produced by prosecution in

respect of motorbike and key recovered at the instance of A2 can not be

discarded on reason of contradiction in make of motorbike or its colour as

black and red or only red as per memorandum panchanama and evidence

before Court. Evidence in nature of confessional given by both A2 and A3

is additional piece of evidence so far as incident dated 1/10/11 is

concerned. Photographs article30 which are produced by prosecution

through evidence of photographer PW24 also supports prosecution to

prove the circumstances of spot and articles seized from spot as per Ex.

129. Therefore I am of view that when there is direct evidence from

...36/


mouth of injured Sohel Khan and Sohel Dalvi, their direct evidence can not

be doubted on the basis of certain admission given by them to the

hypothetical suggestion by defence that too when their oral evidence is

having support from weapon seized from A2 and A3, Doctor evidence,

FSL report and its opinion, motorbike used in incident, identification of

both A2 and A3 before the Court which is corroborated by SEO of

T.I.parade and lastly their own confession. Ultimately on the basis of all

above discussed material on record, I hold that prosecution proved

incident dated 1/10/11 as alleged in chargesheet against A2 and A3.

GroupII

Incident dated 14/10/2011

43. As per testimony of PW28 and PW35 (API Tawade and PI

Dhanawade) on 14/10/11 at about 12.30 pm. when they were in UnitIII

Crime Branch Office, Sr. P.I. Marde called them in chamber where one

informant (Khabari) was present and he gave information that gangster

Ejaj Lakadawala's sharp shooter namely Prashant Rao and his associates

are expected to come near BMC beat chowki with fire arms and therefore,

as per direction of Sr.P.I., one team was formed to arrange the trap under

the head of PW35. It is their corroborative version they both alongwith

other policemen reached on spot alongwith informant and they saw three

persons coming towards BMC beat chowki in suspicious condition.

Informant told them that those are three persons as per his information

and one amongst them is Prashant Rao (A3). It is version of PW28 that

PW35 Dhanawade gave signal to the staff members of the team and took

...37/


all three in custody. PI Dhanawade asked police constable Kadam to call

two witness. Those were called and in their presence personal search of all

three persons was taken and as per the panchanama Ex.112 two pistols

and four cartridges were seized from accused no.1 Riyaz Ahamed Hussain.,

one pistol each from accused Nilesh and Prashant Rao alongwith two and

three cartridges respectively seized from them with other articles as shown

in panchanama. Pistols and cartridges seized from all three accused are

identified by both PW28 and PW35 in their respective evidence.

44. So far as material brought on record in their cross examination by

defence, it is say of PW28 that informant was with them on the spot from

police station. They did not feel necessary to verify secret information in

presence of some independent persons. Trap was arranged by the side of

road on footpath. They had reached on spot by their police scorpio jeep

within 10 minutes. Police constable Kadam was asked to bring two pancha

witnesses. Station diary entry is taken before proceeding from Crime

Branch Office to spot. Copy of panchanama Ex.112 is not given to

accused. When pistol article9 was shown to PW28 he admitted that lakh

seal is not there on body of pistol. He volunteers that it might have

happened when property was sent to CA. In cross examination it is

specific version of PW28 that he himself made station diary entry. It is his

admission that he alongwith other officers had proceeded to spot

alongwith their service revolvers. None of the accused resisted to the

personal search. He also admitted that police did not give their personal

search to panch witnesses. Muddemal seized from all three accused is

...38/


deposited to C.P. Office on the same day from N.M. Joshi Marg Police

Station. It is also admission of PW28 that no receipt was given to accused

about seizure of articles from them.

45. So far as material brought on record from mouth of PW35, in cross

examination after seizure of articles those were given in possession of

PW28 API Tawade. Sealing material was taken from UnitIII itself and he

himself had gone to Nagpada police station for registration of LAC no.

2220/11 and complaint of said incident dated 14/10/11 was registered at

Nagpada police station by ASI Chalke. It is also evidence of PW35

Dhanawade that after seizure of weapons and articles from accused and

registration of LAC no.2220/11 at Nagpada police station, all accused

alongwith seized fire arms were taken in custody of DCB CID by registering

LAC no.35/11 as per direction of Addition C.P. Crime. So far as seizure of

weapons and articles PW35 supported the version of PW28. In his cross

examination defence has brought on record the fact that two police jeeps

and some bikes were used by them to reach the spot. He deposed about

number of police jeep as MH 01 ZA 934. He admitted that he was not

knowing about involvement of accused in C.R.No.138/11 till 19/10/11 as

he personally did not interrogate accused from 14/10/11 to 19/10/11. It

is his version that description was given by informant before proceeding to

trap. In cross examination made by A3 details about how they arranged

trap is brought on record. It is his version that accused were not taken to

Nagpada police station when CR was registered at Nagpada police station.

It is his say in cross examination that they interrogated with accused about

...39/


their involvement in any other crime in between aforesaid period. PW36

has little role about happening of both incidents as he was ACP having role

after invoking provisions of MCOC Act as per CR No.86/11 i.e. after

1/11/11. So far as weapons and other articles seized from accused it is his

version in cross examination that he has not verified property which was

seized by earlier IO. He had not been to the beat chowki or office of Unit

III of DCB CID. So far as possession of fire arms by accused nos. 1,2 and 3,

it is his version that separate chargesheet before 37th A.C.M.M. Court is

filed against them.

46. Apart from above discussed testimony of PW28 and PW35 and to

some extent that of PW36 there is evidence of independent panch witness

of panchanama Ex.112 i.e PW11. He gave evidence before the Court that

on 14/10/11 when he was passing from Peerkhan street in Nagpada, he

was stopped by police personnel and told that they caught member of

gangster Ejaj Lakadawala namely Prashant Rao and asked his willingness

to act as panch witness. According to him he agreed to act as panch

witness and therefore he was taken near Mustafa manzil BMC beat

building where three persons were there in custody of police. In his

detailed evidence, he deposed before the Court that from accused Riyaz

Ahmed Shaikh 2 pistols and two cartridges alongwith other articles were

seized, from accused Nilesh one pistol and two cartridges and from

accused Prashant Rao one pistol and three cartridges alongwith other

articles were seized and panchanama was prepared about seizure of

articles from accused. During his evidence he identified all 4 pistols seized

...40/


from accused persons alongwith cartridges and other articles right from

article 4 to 11 as shown in panchanama Ex.112. While adducing evidence

he identified all three accused present before the Court from whom articles

were seized as per panchanama Ex.112.

47. His testimony in cross examination shows that prior to this

panchanama he never acted as panch witness and there is no police case

against him. According to him all three accused were standing by the side

of road when he reached on spot. So far as suggestion about position of

cartridges when shown to him, it is his say that cartridges were in same

condition when it were seized at the time of panchanama and he did not

know as to how wax was affixed over the butt. He admitted that there is

no seal on the polythene bag. He admitted that no receipt was given to

accused by police about seizure of articles from them. He admitted that

white cardboard in which articles were kept at the time of panchanama is

not before the Court. It is also his version in cross examination that

panchanama was being drawn as per articles shown to him and he did not

handle the articles which were seized at that time.

48. On the basis of above discussed evidence came on record specifically

in cross examination of PW28 and PW35, it is say of defence that when

incident of firing took place on 1/10/11 and there is gap of about 14 days

of second incident, so called recovery from accused that of fire arm and

other articles can not be used against accused. And evidence of PW28 is

silent about muddemal register after seizure till forwarding it to FSL. It is

...41/


also say of defence that there is discrepancy in the evidence of both police

officers about seizure made from accused, taking accused to Nagpada

police station and handing over accused as well as seized property to DCB

CID by transferring LAC no.2220/11 to LAC no.35/11 of DCB CID. It is

also say of defence that in absence of evidence of Sr.PI Marde and non

examination of informant who gave secret information to police, one can

not believe testimony of both police officers (PW28 and PW35) to prove

seizure of firing arms and articles as shown in panchanama Ex.112.

According to defence non production of documents pertaining to the

vehicle used for trap is a glaring infirmity in the case of prosecution which

can not be overcome even by evidence of PW11 panch of Ex.112. It is also

argued on behalf of accused that seizure of firm arms and articles from

accused as per panchanama Ex.112 is at the most case under Arms act

against the accused and as per the admission given by PW36 said case is

pending before 37th A.C.M.M. Court Mumbai. And therefore prosecuting

accused under Arms act in the present case is nothing is doubleJeopardy

U/sec. 300 of Cr.P.C..

49. All above stated points argued on behalf of defence and material

came on record in the evidence of three police officers and one

independent panch witness needs to be appreciated in the context with

story of prosecution which starts from incident of firing dated 1/10/11.

According to prosecution it connects accused nos. 2 and 3 from first

incident to next incident that of recovery of weapons used and possessed

by accused nos. 2 and 3 right from first incident till its recovery by way of

...42/


second incident. Same needs to be seen with other material in their

evidence.

50. As per evidence of PW28 after trap and seizure of fire arms and

other articles from accused nos.1 to 3, they all came to Nagpada police

station alongwith accused and on behalf of state, ASI Chalke lodged FIR.

His testimony is corroborated by PW35 Dhanawade who told to the Court

that ASI Chalke was complainant of said FIR which is registered at

Nagpada police station vide LAC No.2220/11 against accused nos.1 to 3

which is subsequently transferred alongwith seized articles and accused to

DCB CID in LAC no.35/11. To give corroboration to the testimony of

PW28 and PW35 prosecution by examining PW33 PSI Bhosale who was

duty officer of Nagpada police station on 14/10/11 placed on record

station diary entry of LAC no.2220/11 in proof of printed FIR about

incident dated 14/10/11 which is registered U/sec. 3/25, 27 of Arms Act.

It is evidence of PW33 that as per information given by ASI Chalke who

was accompanied with Mr. Chavan and others of Crime Branch UnitIII,

they caught accused nos. 1 to 3 with firm arms and other articles. He

recorded statement of ASI Chalke and also filled up proforma of FIR in

respect of crime. While adducing evidence about printed FIR of LAC no.

2220/11 it is his say that true copy of FIR is having seal and signature of

Sr.PI. It is recorded by him as per narration of Mr. Chalke. It also bears his

signature and signature of Mr. Chalke and true copy of FIR filed on record

is having signature of Sr.PI of DCB CID, UnitIII. By such evidence

prosecution while proving FIR of LAC no.2220/11 produced on record

...43/


station diary entry of LAC no.2220/11 Ex.201. In cross examination it is

his say that they have not taken entry of muddemal in register at Nagpada

police station as it is not required to be entered in muddemal register as

without making entry in their register it was handed over by him to Crime

Branch UnitIII.

51. So on the basis of above discussed evidence of PW28, PW35 and

PW33 it has to say that these three police officers amongst whose earlier

two were head and member of trap, placed on record sufficient material to

prove seizure of fire arms, cartridges and other articles from accused nos. 1

to 3 as per seizure panchanama Ex.112. In addition to oral evidence of

PW28 and PW35, evidence of PW33 who registered FIR of LAC no.

2220/11 at Nagpada police station as per station diary entry Ex.201 about

registration of LAC no.2220/11 under Arms Act against three persons is

proved by prosecution. Their corroborated testimony which supports

prosecution in proving seizure and trap dated 14/10/2011 can not be

discarded and thrown away as per argument of Learned Advocate for

accused that separate chargesheet before C.M.M. 37th Court is filed against

accused under Arms Act which kept in abeyance by this Court till decision

of this case. Point which is argued by defence about applicability principle

of doubleJeopardy will have to be considered while appreciating all above

stated evidence available on record about incident dated 14/10/11 and as

to whether this incident is having connection with earlier incident dated

1/10/11 and what is material produced on record by prosecution to

connect seized articles from accused to the incident dated 1/10/11. At this

...44/


stage it is suffice to say that so far issue of deciding both incidents principle

of doubleJeopardy will not come in the way as case before Magistrate by

order of this Court is kept in abeyance. So also that while deciding this

case there is no question of trial of either accused for same offences for

which they are convicted or acquitted previously for such offences as per

requirement of section 300 of Cr.P.C.

52. In next piece of evidence PW36 deposed about sending of seized

articles i.e. fire arms and cartridges (as per panchanama Ex.112) to FSL for

examination as per Ex.225 which also includes other articles seized from

accused during panchanama. FSL report Ex.231 is placed on record by

prosecution during evidence of PW36 from page 103 to 117. Finding and

report given by FSL about fire arms, cartridges, clothes of injured, bullet

seized from injured and empty cartridges seized from spot of firing

incident is given by scientific expert as per report Ex.231. It is already

discussed in relevant para of judgment while deciding incident dated

1/10/11. By keeping issue as to whether prosecution proved possession of

fire arms with accused nos.1 to 3 as per section 3/5 of Arms Act or

whether their possession of fire arms and cartridges is to be considered as

per charge under MCOC Act reserves to be discussed at relevant stage,

while giving finding about II incident, it is suffix to say at this stage that on

account of seizure of all those articles from accused nos. 1 to 3, case of

possession as per seizure panchanama Ex.112 is proved by prosecution.

Ultimately it has to hold that prosecution proved incident dated 14/10/11.

...45/


GroupIII

Test Identification Parade

53. So far as identification of A2 and A3 is concerned, their role in

incident dated 1/10/11 and identification by injured and eyewitness to

A2, evidence of PW21 panch of seizure panchanama of motorbike and

Key alongwith evidence of PW28 and PW35, it has to say that there is

sufficient material on record about their identification by prosecution

witnesses stated above about both incident dated 1/10/11 and 14/10/11.

While discussing evidence on record in respect of incident dated 1/10/11

in relevant para of the judgment discussion is already made about

testimony of PW2 and PW27 alongwith SEO PW19 who conducted T.I.

parade(Memo Ex.153). So far as T.I.parade and memo Ex.153 is concerned

it is fact that none of the panch witness is examined by prosecution.

However, there is oral evidence of SEO PW19 to prove memo of T.I.

parade Ex.153. Both injured Sohel Khan and eyewitness Sohel Dalvi as per

memo Ex.153 identified A2 and A3 including their role in 1st incident

dated 1/10/11. On account of evidence of PW2 and PW27 about

identification of A2 and A3 including testimony of PW19 discussion of

which is made in relevant paras of the judgment and reasons given while

appreciating evidence as to the identification of A2 and A3, I am of view

that so far as identification of A2 and A3 is concerned there is no

difficulty to accept evidence of prosecution discussed above.

54. So far as fire arm pistols and cartridges seized from accused nos. 1

...46/


to 3 is concerned, evidence adduced by PW11 about panchanama Ex.112

and corresponding evidence including analysis of scientific expert from FSL

vide Ex.225 and 231 is already discussed in para nos.28 to 32 of judgment.

To avoid repetition of discussion of evidence on point of connecting pistols

and cartridges used by A2 and A3 in incident dated 1/10/11 and seizure

of dated 14/10/11 that of arms and ammunition from A2 and A3, in view

of discussion made in above para in judgment at this point of time it is

suffice to say that prosecution has produced on record sufficient evidence

to say that fire arms pistols and cartridges used and possessed by A2 and

A3 at the time of 1st incident are recovered by police during seizure dated

14/10/11.

55. So far as role of accused no.1 is concerned admittedly he has no role

in incident of firing and there is only evidence about seizure of 2 pistols

and 4 cartridges alongwith other articles from him as per panchanama Ex.

112. And to prove seizure of articles from him as stated in above para of

the judgment, there is evidence of PW11,PW33, PW35 and PW36, and

again evidence in the nature of report of FSL right from forwarding articles

seized from all accused vide Ex.225 and FSL Report Ex.231. So far as

identification of accused no.1 is concerned considering his role from day of

seizure i.e. 14/10/11 there is limited evidence of aforesaid witnesses. And

in my view so far as seized articles from A1 is concerned, his identification

is not in much dispute like A2 and A3. It is also because his connection

lies more in confession given by A2 and A3, barring his identification

about incident dated 14/10/11. Therefore next point of determination is

...47/


confession given by A2 and A3 which is in preceding para of judgment.

GroupIV

Confession of A2 and A3.

56. On confession of A2 there is evidence of PW28 & PW32 whose role

is that of taking accused before DCP ZoneIV on 8/11/11. As per oral

testimony of PW28 on 8/11/11 as per direction of ACP Vatkar (PW36)

and as per letter issued by Shri Vatkar (Ex.176) he took custody of Nilesh

and produced him before DCP ZoneIV i.e. PW29 Keshav Patil. As per his

cross examination no other instructions were given by ACP Vatkar to him

other than production of A2 before DCP and when he took custody of

accused for his production before DCP accused was in lockup of Crime

Branch. He admitted that accused was in custody from date of trap i.e.

14/10/11 till 8/11/11 and he had no occasion to interrogate accused

during that period. It is also his version that he helped ACP Vatkar in

investigation and when accused Nilesh was produced before DCP, he

received acknowledgment of production of accused. So far as documentary

proof about taking custody of A2 from Crime Branch and production

before DCP is concerned, it is his say that station diary entry is taken to

that effect. PW32 in his evidence stated that he was deputed by Sr.PI

alongwith PW28 for production of accused Nilesh before DCB Zone IV

and while taking accused from custody of Crime Branch and producing

him before DCP, station diary entry was taken and accused was produced

on 8/11/11. It is his further version that after production of A2 before

...48/


DCP and after completing work in his chamber, accused was again given in

their custody with direction of medical checkup and to keep accused in

separate cell in Matunga lockup by taking care that nobody from Crime

Branch (I.O.) will come in his contact. According to him by following

directions given by DCP accused was taken back and reproduced on again

9/11/11 at about 1.30 p.m. before DCP ZoneIV i.e. PW29 and station

diary entry was also taken of 9/11/11. According to him when accused

was inside the chamber of DCP, he alongwith PW28 and other police

officers were outside the chamber and at 17.50p.m. DCP called him in

chamber and handed over two sealed envelopes and directed them to take

accused before C.M.M. alongwith two envelopes. Accordingly they took

accused and sealed envelopes and produced accused as well envelopes

before C.M.M. and after completing work in the office of C.M.M., he took

accused in the office of ACP DI and gave all details to ACP Shri Vatkar. As

per his further testimony after completing work of 9/11/11, accused was

given in custody of DCB CID UnitIII and by returning to Matunga police

station, he took station diary entry. By his evidence prosecution produced

station diary entry of both 8/11/11/ and 9/11/11 Ex.199, in support of

oral testimony of both PWs28 and 32. There is no material admission

given by PW32 in his cross examination except position of Matunga police

station, compound having two police station i.e. Sion and Matunga and

also having ACP Sion and Matunga DCP office in the same building. He

admitted that accused was kept in lockup which is situated in same

campus of Matunga Division.

...49/


57. PW29 DCP Keshav Patil who recorded confessional statement of A2

partI vide Ex.184 and confessional statement PartII vide Ex.186, while

adducing his evidence stated on oath that while working as DCPI, he was

aware about provisions of MCOC about recording confession of accused

and as per order issued by C.P. Crime Himanshu Roy Ex.180, he wrote

letter as per Ex.181 to PI Matunga for deputing one officer and other staff

for production of accused Nilesh on 8/11/11. Accordingly, accused Nilesh

was produced before him in veil. He asked PW28 and 32 to go out of the

chamber and with the help of Computer operator Mrs. More, he recorded

answer given by accused as per confessional statement partI in Marathi

language which was known to accused. It is his specific version that while

recording confessional statement partI in question and answer form, he

satisfied about readiness and willingness of accused to give confession

which was voluntarily given by accused without pressure or promise from

any police officer. It is also his version that he explained to accused that if

confession is given by him, it can be used against him in the Court and he

may be punished on the basis of confession. According to him with full

understanding of questions accused gave answers and as he was satisfied

that accused was ready and willing to give confession and it was

voluntarily, he gave 24 hours time to accused to rethink by directing PW28

and his team to produce accused again on next day i.e. 9/11/11 at 1.30

p.m.

58. It is his version that he had directed PW28 and other officers to

keep accused in Matunga Division in separate cell by taking care that

...50/


other accused shall come in his contact. It is his further evidence that

accused was again produced by same police officer at 1.30 p.m. on

9/11/11. Again by putting different questions in confessional statement

partII, he satisfied that there was no inducement, threat or promise to the

accused for giving confession and he is ready and willing to give confession

voluntarily. On enquiry with accused, he satisfied that accused is ready

and willing to give confession and therefore, he recorded confessional

statement partII and ultimately actual confessional statement was given

by accused in his own language i.e. Marathi as per Ex.186. According to

him, separate certificate is given through confessional certificate vide Ex.

187. He identified his signature and signature of accused no.2 Nilesh from

confessional certificate as well as confessional statement part – I & II stated

above. It is his further evidence that confessional statement part I & II

which were separately sealed alongwith his letter sent to C.M.M. vide Ex.

188. According to him as per letter Ex.189, PW32 was directed to hand

over custody of aforesaid accused to ACP D1 i.e. Yashwant Vatkar of Crime

Branch after verification by C.M.M.

59. In cross examination he admitted that C.M.M. is also empowered to

record confession of accused. He did not inform to accused about the

same. According to him his hand writing portion Ex.187 certificate is not

part of confession and therefore, it is hand written. It is also his say in

cross examination that direction given by Joint C.P. for recording

confession is mandatory on him. About retraction of confession by accused

before C.M.M. on 9/11/11 as per Ex.190 it is his say that he do not know

...51/


about retracting of confession by accused at the time of verification by

C.M.M. PW28 and his team were directed to return the accused by

keeping him in Matunga lockup and a sealed envelope used to be in

possession of C.M.M. for forwarding it to the Spl. Court. In further cross

examination, it has come on record that he did not make any enquiry with

lockup official that accused was kept in lockup and during that period

conduct and behaviour of accused during rethinking period of 24 hours.

60. So far as confession given by accused no.3, PW25 and PW26 are

police officers who took him from lockup to DCP ZoneIII that is PW16

for recording of confession. As per evidence of PW25 on 8/11/11 as per

direction of Sr.P.I. Marde, he alongwith other staff took accused Prashant

Rao (A3) to DCPZoneIII as per letter Ex.136 which is having

acknowledgment of production of accused before DCP. In cross

examination, it is his say that they used to maintain station diary entry

about transferring accused from one Unit to other and it is taken by him in

Crime Branch Office ZoneIII as there is no station diary maintained in

DCP ZoneI. PW26 Nitin Potdar is other officer who was deputed to take

accused no.3 for recording confessional statement before DCPZoneIII

alongwith PW25. In his detailed evidence he deposed that on 8/11/11 at

about 12.00 p.m., by police jeep they proceeded A3 to DCBZoneIII and

at about 2.45 p.m. DCP called him in chamber. He produced accused in the

chamber of DCP. At that time steno Mrs. Bhosale was present in the cabin

and he was told to wait outside. After completing work of accused by DCP

again custody was given to him with all necessary instruction, stated by

...52/


him in his evidence, with direction to produce accused on 9/11/11. They

kept accused after medical checkup at Saat Rasta Police lockup by taking

entry in station diary at Nagpada Police station.

61. On 9/11/11, after production of accused before DCP ZoneIII, they

were waiting outside and at about 10.40 p.m. again DCP called him in

chamber and gave custody of A3 alongwith two envelopes and covering

letter to hand over to C.M.M. They took sealed envelopes and accused

before C.M.M. and waited outside C.M.M. Hall. After completing work in

the office of C.M.M., accused was given in his custody. The team again

returned to DCP ZoneIII and handed over letter given to DCP and ACP.

Accused was lodged in custody of Crime Branch. Again station diary entry

is taken in Nagpada police station. According to him log book entry about

taking accused on both dates is taken. By his evidence prosecution

produced on record station diary entry of 8/11/11 and 9/11/11 vide Ex.

173. In cross examination, he admitted that there is no logbook in

Nagpada police station and therefore, accused was kept in Sat Rasta police

lockup. They were told that accused was kept in Nagpada police lockup by

DCP. It is his version in cross examination that there is entry about keeping

the accused in separate room in Saat Rasta lockup and separate room was

supervised by Nagpada police station.

62. So far as testimony of PW16 DCP who recorded confession of

accused no.3 as per order of Joint CP Crime dated 5/11/11 he was

directed to record confession statement of A3 as per letter Ex.134.

...53/


Therefore he issued letter to ACP Crime D1 for production of accused

before him vide Ex.135. On 8/11/11 at about 12.00 p.m. as per letter Ex.

136 of ACP D1 accused was produced before him. He by putting required

questions to verify his willingness and voluntariness of confession,

recorded confessional statement of partI. Accused knows Marathi

language. According to him questions and answers of PartI of confession

was typed on computer by his stenographer. In his detailed evidence he

gave iota of all questions put to accused which are mentioned in PartI of

confession statement Ex.137. According to him accused was given in

custody of API Potdar i.e. PW26 by directing him to take accused in veil

and reproduce him on 9/11/11. Again accused was produced before him.

He verified from accused about voluntariness by putting different

questions which are recorded in confessional statement partII. According

to him after recording answers from accused to his questions in partII of

confessional statement he was satisfied that there was no pressure or

threat to accused about giving confession and as he was satisfied that

accused is ready and willing to give confessional statement, he recorded

actual confession of accused in Marathi language. After recording second

part of confession statement Ex.138, as per his further evidence both partI

& II were kept in two different envelopes and sealed envelopes were

forwarded to C.M.M. for verification by asking PW26 to produce accused

in veil before C.M.M.

63. So far as his cross examination is concerned reason for writing letter

Ex.139 to Sr.PI Nagpada police station was immediately hand over

...54/


custody of accused to Nagpada police station after recording partI, he

admitted that he did not ascertain since how long accused was in his

custody. According to him he did not ask about medical examination of

accused while recording of confession statement partII. It is also his

version that he did not inform to accused that his confession can also be

recorded by Magistrate. He is confronted with bracketed portion of

confession partI (Ex.137) which is hand written to which he stated that, it

is in the handwriting of accused including thumb impression below

confession partI. He admitted that there is no mention below thumb

impression that of left hand thumb impression of accused. However he

admitted that below the handwriting of accused which is marked at

portion mark A there is signature of accused. PW36 while in cross

examination by A3 stated that if person is accused of firing he would be

interrogated. He admitted that after receipt of letter on 6/11/11 he

decided to record confession statement of PartI on 8/11/11. According to

him it was his decision to keep custody of accused in Nagpada police

station. PW16 gave specific evidence to the suggestion of accused that it

is incumbent on the part of an officer to ensure that the confession should

be voluntary. However he can not say about its truthfulness. He admitted

that he did ascertain truthfulness of what he has recorded i.e. about actual

confession of accused.

64. While appreciating above discussed evidence of two different police

officers who took respective accused from Crime Branch and Nagpada

police lockup before DCP ZoneIII & IV for recording confessional

...55/


statement alongwith testimony of DCP PW16 and PW 29 one important

aspect to be considered here is retraction of confession by accused no.2. As

per his statement recorded by C.M.M. on same date i.e. 9/11/11 which is

forwarded with letter Ex.190(by which sealed envelopes of confession was

forwarded to Spl. Court by C.M.M.) he stated before C.M.M. that police

threaten him and recorded his statement and obtained his signature. It is

not voluntarily stated and he is no way concerned with crime. Such type of

retraction of confession given by accused no.2 needs to be kept in mind

while appreciating testimony of PW28,PW29 and PW32 so far as Ex.184

and 186 is concerned. Similarly accused no.3 after filing of the

chargesheet on 27/6/2012 from jail forwarded one letter Ex.3 to this Court

stating therein that his signatures were obtained on confessional statement

by threat and considering his contentions in application Ex.3 and for other

reasons mentioned in application, he be released on bail. As per said

application though it is in the nature of bail, as there some contentions

about retraction of confession while appreciating oral evidence of PW16,

PW25 and P26 in reference to confession of accused no.3 i.e. Ex.137 and

138 said retraction in the form of bail application needs to be kept in mind

while appreciating evidence in the nature of confession given by A3.

65. While considering aforesaid Ex.3 bail application forwarded by A3

from jail wherein he has made allegations of threat by police for giving

confession which is dated 27/6/2012 is after about 67 month of his

recording confession by DCP. So while considering such delayed retraction

that too while praying bail, the important fact that when he was produced

...56/


before C.M.M. for verification of confession as per mandatory provisions of

section 18 of MCOC Act, his statement is recorded by C.M.M. which is

attached with forwarding letter dated 9/10th November, 2011 which speaks

that before C.M.M. he has made no complaint about threat, inducement or

pressure by police officer for giving confession. On the contrary his

statement recorded by C.M.M. supports prosecution about his

voluntariness in giving confession.

66. During the course of argument Learned Advocate for accused nos.

1,2 and 3 in their respective arguments vehemently argued about

voluntariness and truthfulness of the confession. They also harpen about

non compliance of procedure of recording of confession by both DCP's.

Learned Advocate for A1 relied on judgment and order passed by Hon'ble

High Court in The State of Maharashtra V. Sachin G. Shetye and ors.

(Bombay High Court in Criminal Appeal no.191/2010 with Criminal

Appeal no.890/2009 with Criminal Application no.752/2013 in

Criminal Appeal no.890/2009 dated 25/4/2014); wherein Their

Lordships while dealing with part of evidence in respect of confession in

said case observed that confessional statements have been recorded

mechanically and not within spirit of section 18 of MCOC Act. It is also

observed that none of the DCPs who recorded confession statement have

made any genuine efforts to ascertain voluntariness of accused to make

the confession statement. It is also observed that there is no corroborative

evidence by prosecution to guarantee truthfulness of confession. There

were other lacunae in recording confession as observed by Their Lordship

...57/


by not following some clauses out of 6 of section 18 of MCOC Act.

While placing most of the reliance of the prosecution case on

confession of A2 and A3, Learned Spl. P.P. while rebutting argument of

defence that by asking similar 18 questions to both accused by different

DCPs according to him will not minimize probative value of confession. He

relied on Manjit Singh @ Mange V. CBI, through its S.P. (AIR 2011

Supreme Court 806), wherein it is held that merely because confessional

statement of both accused is more or less similar, it can not be said that

they are neither normal nor unnatural, which would vitiate probative value

of such confessional statement. He also relied on State of Maharashtra V.

Damu Gopinath Shinde ( AIR 2000 Supreme Court 1691) on the point

of delay in recording confession statement which can be no ground to

doubt voluntary confession. Aforesaid case is also relied by prosecution on

the point that if there is no explanation given by investigating officer that

how he knew that accused was willing to make confession to him is of no

consequences. Meaning thereby it is argument of prosecution that if

procedural aspect of recording confession is proved by the evidence of DCP

and prosecution is having other piece of evidence by way of corroboration

to evidence of DCP even if no explanation is given by DCP in his evidence

as to how he knew that accused was willing to make confession voluntarily,

does not affect evidential value of confession.

67. On perusal of confession statement partI of A3 Ex.137, it is seen

that DCP (PW16) ascertained voluntariness of A3 for giving confession by

...58/


putting 18 questions to find out as to whether there was pressure, threat or

promise if any from police officer. On perusal of all those questions, it is

seen that in his chamber free atmosphere was created for recording

confession statement and questions and answers were typed on computer

for compliance of clause(1) of section 18. There is mention about

signature and thumb impression of accused and certificate of his

satisfaction is given under his signature after explaining pros and cons of

giving confession to accused. Certificate also shows that sufficient care is

taken by DCP about not coming accused in contact with IO or other police

officer to create pressure, inducement or threat and care for keeping him

in separate cell is taken as mentioned in certificate. Both part I & II are

recorded in language of accused i.e. Marathi in which he was comfortable

in compliance of clause(2) of section 18. So far as confession statement

partII Ex.138 is concerned, again similar exercise of ascertaining

voluntariness by putting 11 questions to A3 is done by DCP and to the last

question his confirmation was taken by DCP while recording his actual

confession on computer. Actual confession partII which is about 8 pages

shows that it was written/typed on say of accused and as per information

given by him including his own endorsement that confession statement

was read over to him and found correct and is given by him under his

thumb impression. Again certificate which is required as per clause(3) of

section 18 is given by DCP to the actual confession which is recorded vide

Ex.138. Both confession statement part I & II sealed and envelopes were

forwarded to C.M.M. as per letter Ex.140 on same date i.e. 9/11/11 and

on next day as per above letter C.M.M. forwarded both sealed envelopes

...59/


alongwith statement of accused no.3 who had sticked up with his

confession to Spl. Judge under MCOC Act. Meaning thereby there is full

compliance of clause(4) & (5) so far as forwarding confession of accused

from DCP to C.M.M. is concerned.

68. After going through confessional statement part I & II of A2 Ex.

184 and 186, certificate given at the time of both confession, oral evidence

adduced by PW29 in proof of both confession statement partI & II

including actual confession recorded by DCP that of accused Nilesh dated

9/11/11 shows that like DCP (PW16) second DCP (PW29) followed

procedure of recording confession which is given in section 18 of MCOC

Act. A2 was also explained by DCP (PW29) about pros and cons of giving

confession including that it may be used against him and he may be

punished if confession is given. It is true that as per Ex.19 forwarding

letter of C.M.M. to Spl. judge MCOC Court statement of accused Nilesh

recorded by C.M.M. about his forcibly obtaining signature on statement

and that he has not given confession voluntarily is forwarded to this Court.

However such retraction of A2 is to be considered in reference to other

substantive and corroborative piece of evidence available on record. It is

also because on point of retracted confession Learned Advocate for A3

during the course of argument placed reliance on Parmanand Pegu V.

State of Assam, (2004 Supreme Court Case (Cri)2081), wherein it is

held that confession which was retracted by accused received no

corroboration from any other evidence and also contradicted medical

evidence as regarding to death of deceased which was an important aspect

...60/


of confession, in such case it would be unsafe to convict accused solely on

the basis of retracted confession. It is observed by Hon'ble Supreme Court

in supra Case that Court should also have regard to corroboration from

other evidence so as to assure of truth of confession. In my view argument

advanced by learned Advocate for A3 on the basis of such observation

made by Hon'ble Supreme Court case in case of retracted confession which

is also in our case, as there is firm confession of A2 which is verified by

C.M.M. discussed above, while appreciating retraction of confession of A2

and aforesaid confession of A2 and other corroborative and substantial

piece of evidence in our case in respect of both incident dated 1/10/11 and

14/10/11 needs to be considered as it is not only corroborative piece of

evidence but direct and substantive piece of evidence.

On the same point, Learned Advocate for A3 also relied on

Kashmira Singh V. State of Madhya Pradesh (1952MADLJ1754,

1952AIR(SC)0159), wherein it is held that proper way to approach a

case of this kind of confession is first to marshall the evidence against

accused excluding the confession altogether from consideration and see

whether, if it is believed, a conviction could safely be based on it. It is also

observed by Their Lordship in supra case that if there is evidence against

coaccused sufficient if believed to support his conviction, then the kind of

confession may be thrown into the scale as an additional reason for

believing that evidence. Learned Advocate for A1 also relied on State of

Rajasthan V. Ajit Singh and others [(2008) 1 Supreme Court Cases

(Cri)287], wherein it is observed that we can not stretch the language of

...61/


section so as to bring the confession of the coaccused within the fold of

admissibility. Such stretching of the language of law is not at all warranted

especially in the case of law which visits a person with serious penal

consequences. It is observed by Their Lordship while deciding supra case

that confession of coaccused can only be used as corroborative piece of

evidence that too against maker only.

There can be no two way thinking about observation and

finding given by Hon'ble Supreme Court and Hon'ble High Court in supra

cases about use of confession against coaccused. However section 18 of

MCOC Act clearly speaks that certain confession made to police officer

shall be admissible in the evidence of trial of such person or coaccused

abettor or conspirator, provided that coaccused, abettor/conspirator is

charged and tried in the same case together with the accused. Meaning

thereby provisions contend in section 18 makes the confession made by

one accused admissible during trial against coaccused if such coaccused is

charged and tried in same case. Of course other parameters like

voluntariness and truthfulness in confession of accused are always there.

While rebutting above stated argument in reply argument

Learned Spl.P.P. on point of retracted confession relied on Pyare Lal

Bhargava V. The State of Rajasthan (AIR 1963 Supreme Court 1094 (V

50 C 164)), wherein it is observed that if corroboration is there and

original statement is found voluntarily, retraction can be ignored as

retraction do not wipe out its evidential value. On same point prosecution

...62/


also relied on Periyasami S/o Duraisami Novanagar V. State (2004 AIR

SCW 2223), on the point of taking precaution by DCP to ascertain that

confession was voluntarily. Prosecution also relied on Abdulvahab

Abdulmajid Shaikh & Ors. V. State of Gujrat ( (2007) 4 Supreme Court

Cases 257) and submitted that if there is evidence before Court from DCP

stating therein that confession is recorded after complying with all

procedural formalities and this fact is incorporated in confessional

statement and before Magistrate accused has not stated about pressure and

third decree method used against him to extract confession, in such case

confession needs to be held voluntary, truthful and admissible in evidence.

If ratio laid down in aforesaid 3 cases on point of retracted confession is to

be appreciated to the confession of A2, though he has retracted confession

before CMM on same day, original statement that of confession before DCP

having seen proved by prosecution by complying all procedural formalities

as observed in supra case by Hon'ble Supreme Court and as there is

support to the case of prosecution by way of corroboration from confession

of A3 and other material evidence discussed in above para of the

judgment, so far as present case is concerned, I am of view that subsequent

retraction by A2 will not be fatal to the case of prosecution.

69. To ascertain voluntary nature of confession of both A2 & A3 on the

basis of above stated material on record both oral and documentary

evidence, I am of view that some submission made by Learned Advocate

for A1 and A3 so far as not following the procedure established for

recording confession is not as per actual position and exhibited documents

...63/


on record. Because nature of confessional statement part I & II of both

A2 & A3 referred in above paras in my opinion demonstrates voluntary

nature of confession given by A2 & A3. As A2 has retracted his

confession on the same day so there is little space to create doubt about his

voluntariness. However the retraction of confession again needs to be

appreciated on the basis of substantive and corroborative piece of evidence

available on record and proof of both incidents discussed in relevant para

of the judgment. It is also because A2 and A3 are main accused in

commission of first incident of firing and so far as second incident that of

recovery of fire arms and ammunition is concerned there is again role of

both A2 and A3 and in addition that of A1.

70. So to find out truthfulness in the confession given by accused it is

necessary to see what they have stated in their actual confession recorded

in partII so as to connect it with story of prosecution not only about both

incidents referred above but that of conspiracy which is alleged against

accused nos. 1 to 3. The gist of actual confession of A3 recorded at Ex.138

shows that one Akhil Lakadawala is known to him and in the month of

January, 2011 he received call of said Akhil Lakadawala on his mobile and

when he did not pickup said call, second time said Akhil by calling him

told that his brother Ejaj Lakadawala is ready to help him if required and

as A3 was in need of money agreed to work with Ejaj Lakadawala. His

further statement shows that thereafter many times he came in contact

with Ejaj Lakadawala who resides in abroad in respect of his work. There

is also reference in his statement that on say of Ejaj Lakadawala twice

...64/


pistols were provided to him for giving threat to some persons on account

of extortion money. In his statement he also stated role of A1 who

provided him SIM cards of different companies for purpose of using it. So

far as incident dated 1/10/11 he has given specific role of A1 who was

knowing site of firing which was shown to him and A2, and also provided

two pistols and cartridges for firing incident dated 1/10/11. His further

statement also shows that after firing incident A3 collected pistol which

was with A2 and handed over the same to A1 and for the purpose of

completing incident of firing A1 paid Rs.20,000/ to A2.

71. So far as actual confession statement of A2 is concerned he has

corroborated to confession statement of A3 regarding incident dated

1/10/11 including motorbike used in incident of his brother Mangesh and

accompanying with A3 to the spot of firing by driving motorbike and

aiding A3 in committing firing incident and thereafter amount of Rs.

20,000/ was paid to him by A1 through his friend Jignesh. While

ascertaining truth of confession given by both A2 and A3 substantive

piece of evidence from the mouth of injured Sohel Khan and eyewitness

Sohel Dalvi about incident shows that there is truthfulness in confession

given by both accused which corroborates to the case of prosecution. There

is also other corroborative piece of evidence which is discussed in relevant

paras of the judgment while deciding incident dated 1/10/11 and

14/10/11. So far as other corroboration about truthfulness in the

confession of A2 is concerned there is evidence of PW12 Jignesh Pandya

who deposed on oath that Riyazbhai (A1) had given him one envelope

...65/


containing Rs.20,000/ to hand over it to Annu (A2) near Hotel Ramdev

at Borivali. It may be noted that this PW12 Jignesh Pandy has also given

his statement U/sec. 164 of Cr.P.C. before C.M.M. which also speaks about

above stated fact. Oral evidence given by PW12 which supports the case

of prosecution in view of his statement U/s 164 of Cr.P.C. (Ex.125) gives

corroboration to confession and its truthfulness about payment of Rs.

20,000/ made by A1 to A2 as stated above.

72. In addition to all above discussed evidence there is one more piece

of evidence adduced by prosecution who is PW15 whose statement is also

recorded U/sex. 164 of Cr.P.C. before Magistrate. PW15 Mohd. Akram

Nirbhan is proprietor of Nirbhan Construction site of development at

Kamruddin street where firing incident dated 1/10/11 took place in which

Sohel Khan son of his tenant Majid Khan received bullet injury. Barring

information received by him about firing incident and his statement

recorded in J.J. Marg police station by calling him on 2/10/11 he also

stated before the Court that on 22/12/2011 he has given statement U/sec.

164 of Cr.P.C. before the M.M. which is filed on record by prosecution.

Apart from information received about incident dated 1/10/11 from one

Nabeel his employee of company on telephone, it is his version before the

Court that on next day of firing incident i.e. 2/10/11 he received call on

his mobile no.9819859787 from mobile no.9022362450 giving threat that

inspite of firing incident why he is not receiving his phone call and having

known firing incident on his construction site dated 1/10/11. It is his

specific version that said threat and message was mentioning sender name

...66/


as Ejaj Lakadawala and number 0015856414447. According to him

thereafter again from other mobile, caller Ejaj Lakadawala many times

repeatedly called him and demanded Rs.3 crores on account of his

construction business. Again on 3/10/2011 same demand is repeated by

caller Ejaj Lakadawala from him. It is his specific version that prior to

2025 days of firing incident he had received one call from unknown

number having beginning with +910000000000.

73. He was cross examined by defence on above stated threatening call

on his mobile by mentioning sender as Ejaj Lakadawala and demanding Rs.

3 crores and also on his statement recorded by police on 2/10/11 as he

had received threat before 2025 days of firing incident. He was cross

examined by defence by giving suggestion that after receiving threat on

such earlier dates why he did not lodge report to police station, to which

he replied that he did not feel necessary. He admitted that he heard name

of Ejaj Lakadawala as Bhai from electronic media. He also admitted that

even prior to 9/9/11 he used to receive such threatening call. It is also his

version that when he received first call of threat in the name of Ejaj

Lakadawala, he did not feel that it was threat of extortion. To the question

why he did not approach to police station immediately after firing incident,

he replied that he was scared at that time and also because he had scared

due to threatening SMS and was in state of shock. He denied suggestion

of defence that he extended threat of implicating some complainant on

account of property dispute in MCOC case and therefore, those threats

were from such complainant and not from unknown persons by name Ejaj

...67/


Lakadawala.

74. While appreciating above stated evidence of PW15 adduced before

the Court if one perused his statement U/sec. 164 of Cr.P.C. recorded

before Magistrate, it is seen that whatever stated by him before police in

his statement U/s 161 of Cr.P.C. and deposed before Court so far as

information received about firing incident, threatening calls prior to firing

incident and after incident under the name of Ejaj Lakadawala even by

mentioning number below the SMS, if read in reference to statement U/s

164 of Cr.P.C., it is seen that he gave corroboration to prosecution evidence

adduced in respect of firing incident from mouth of PW2 and PW27.

Similarly if we appreciate testimony of PW15 which is in consonance with

his statement U/s 164 of Cr.P.C. and with confession statement of A2 and

A3, it is seen that PW15 supports to the prosecution about theory of

threat of extortion from Ejaj Lakadawala. So far as finding corroboration

by PW15 to the confession of A2 and A3 about threat of extortion from

Ejaj Lakadawala and to find out truthfulness in confession of A2 and A3,

it can be said that evidence adduced by PW15 is additional piece of

corroboration for truthfulness of confession given by A2 and A3. Now

having seen above discussed evidence produced on record on behalf of

prosecution in the nature of confession of A2 and A3 and witness

examined in proof of same together with evidence of PW12 and 15

discussed above, to prove further link of prosecution evidence it has to say

that prosecution brought on record sufficient evidence about voluntariness

of confession of A3 so also that of A2 though his retraction is immediate

...68/


before C.M.M.. Now it is further necessary to make scrutiny of evidence

available on record in respect of electronic record in the nature of CDR and

Computer print out. Prosecution adduced oral as well as documentary

evidence in this regard and same is being discussed separately in next

group of evidence.

Group V

Evidence about Mobile & CDR print out.

75. While discussing evidence about incident dated 14/10/2011(in

group II) reference about evidence adduced by PW11, so far as seizure of

fire arms and ammunition is already made in the relevant para of the

judgment. So far as this group is concerned seizure of mobile having SIM

of Aircel Company having no.8898341106 from accused no.1 Riyaz and

from A3 about two mobiles having SIM of Aircel company having mobile

no. 8286582406 and 8286242768 needs to be discussed in connection

with oral evidence of Nodal officers PW5 to PW10 and PW31. It is

already held in relevant paras of the judgment that seizure of aforesaid

three mobiles from A1 and A3 is proved by prosecution vide Ex.112.

Barring aforesaid three mobiles and details of there seizure as discussed in

groupIV regarding confession of A2 and A3, so far as this group of

evidence is concerned in confession of A2 there is reference of mobile no.

9768784412 and in confession of A3 there is reference of in all five

mobile numbers. Those are 9987328649 ( in the name of father in law)

mobile no.9125170495 (Uninor company seized from Mira Road), third

...69/


SIM cards of Reliance company no.8080863533, 7666293682,

9022462350. Barring having reference all above stated five SIM cards time

to time used by A3, as per his confession there is also reference of mobile

number of Ejaj Lakadawala from abroad on which there are out going and

incoming calls as per confession of A3. Those numbers are 16503604678,

16467367532 and 1585641447. Further link up evidence is through

mobile no.9819859787 that of PW15 Akram Nirbhan to whom there were

threatening calls from both A3 and Ejaj Lakadawala. As per PW15's

statement U/sec.164 of Cr.P.C. and evidence before this Court on his

mobile there are in coming and out going calls from different numbers and

those are 910000000000, 34340000000000, 0015856414447 and

34444256845. In addition to above stated mobile to prove connection

amongst A1,A3, PW15 and Ejaj Lakadawala there is evidence of PW12

who has also given statement U/sec. 164 of Cr.P.C. (Ex.125) before

Magistrate by mentioning his mobile no.9324030307 and mobile number

of A1 Riyaz as 9898341106.

76. To prove link and contact in between above stated mobiles mostly in

between A3 and Ejaj Lakadawala at one hand and Akram Nirbhan(PW15)

on other hand about threat of extortion at other side, there is evidence of

above stated Nodal Officers of different companies namely Airtel, Aircel,

Vodafone, Idea, Reliance, Uninor, and Loop Companies. Nodal Officers in

their respective evidence by giving oral testimony placed material on

record about name of persons in whose name above referred SIM cards are

registered in their companies. They also produced on record customer

...70/


application forms having photographs of the customers to whom respective

SIM cards were sold either by their dealer or subdealer. All those

documentary proof is placed on record by prosecution right from Ex.64 to

108 including print out of call details of incoming and out going calls from

above referred mobiles. Admittedly except mobile no.9819859787 and its

print out (Ex.90) as per evidence of PW8 in the name of PW15 Akram

Nirbhan, most of the mobiles are in the name of other persons and not in

the name of either accused.

77. It has come on record in their respective evidence that as per request

and application submitted by ACP Vatkar, their companies have issued

relevant CDR for the period from 1/1/2011 to 30/11/11 and contents of

computer print out are taken out from their system which is maintained as

per rules and accordingly certificates are issued by them while supplying

said information including documents about original subscribers

application forms etc. By examining aforesaid Nodal officers prosecution

not only produced on record CDR and computer print out, but also original

customer application forms of most of those mobile holders and documents

such as address and residential proof on the basis of which company issued

SIM cards to them. Nodal officers while adducing their evidence gave

specific evidence about certificate issued to police officer ACP Vatkar

(PW36) as per requirement of section 65(B) of Evidence Act. Certificate

under Evidence Act issued by all Nodal officers got proved by prosecution

by giving respective exhibits in their evidence which are included in

exhibits right from Ex.64 to 109.

...71/


78. So far as part of cross examination is concerned defence has brought

on record some material to say that they were asked by police about

location of calls and location of numbers like 000 +401,501 +500 which

can be traced out. They denied suggestion that calls made from Internet

can not be located in their system. Most of them denied most of the

suggestions of the defence. So far as copies of customer application forms,

it is evidence of Nodal officers that those are scanned and copies are

submitted under their certificate. Some had brought original customer

application forms while adducing evidence to prove such certified copies

issued by them.

79. During the course of argument Learned Advocate for A1 to A3

submitted that CDR's no where demonstrate fact that phones calls were

made by Ejaj Lakadawala before incident and CDR produced on record

through Nodal officer even though proved and exhibited is not useful to

prove conspiracy. It is also argument of defence that both IOs have not

deposed above conspiracy or CDR. It is also their argument that none of

the mobile is in the name of accused. No interception is proved by

prosecution. It is also argument on behalf of the defence that there is no

investigation by police about incoming and out going calls from mobiles

seized. So far as computer print out and CDR are concerned it is their say

that such nature of documentary evidence will not help prosecution to

prove conspiracy.

80. Learned Advocate for A1 vehemently argued about non production

...72/


of certificate by Nodal Officers in proving contents of CDR, computer print

out as per requirement of section 65(B) of Evidence Act. Learned Advocate

for A1 on same point also relied on P.V. Anvar V. Basheer & others (CDJ

2014 SC 790), wherein it is held that in absence of certificate in terms of

section 65(B), such computer print out can not be admitted in evidence as

it is secondary evidence pertaining to electronic record. While appreciating

such submission on behalf of defence, if one peruse computer print out of

above referred mobiles, it can be said that not only customer application

forms but CDR and computer print out is proved by prosecution by

adducing oral evidence of PW5 to PW10 and PW31 but mobile numbers

given by A1 and A3 in their confession and PW12 and PW15 in their

statement U/sec. 164 of Cr.P.C. So far as argument advanced by Learned

Advocate for accused that IO has not deposed about such electronic record

though produced on record though Nodal Officers. However such is not

fact. So far as PW35 is concerned, in his evidence he specifically deposed

not only about mobile seized but also about companies of SIM cards and

statement of Nodal officers recorded during the course of investigation

including certificates issued by Nodal officers as per section 65(B) of

Evidence Act, (reference to para 7 of PW35). Not only that IInd IO PW36

in his evidence at para no.6 specifically deposed that on 15/12/2011 as

per his instruction PW35 recorded statement of some Nodal Officers.

Similarly in para no.9 he has specifically given evidence about information

given by Nodal Officers by providing CDR about location of the mobile of

Akram Nirbhan (PW15) and Ejaj Lakadawala and that of A3 Prashant

Rao. In para no.16, PW36 specifically denied suggestion of defence that

...73/


CDR of mobile and SIM cards has no concern with accused.

81. By above referred oral evidence of Nodal officers as it is

accompanied by certificate U/sec. 65(B) of the Evidence Act mentioning

specific contents that electronic record and print out i.e. CDR and CAF of

mobile have been retrieved from computer which was in possession of

each Nodal officer, it has to say that there is direct oral evidence before the

Court in proof of CDR and CAF which is produced on record by

prosecution in two volumes i.e. partI and partII. By their respective

evidence prosecution exhibited computer print out of each mobile about

incoming and out going calls in between PW15 Akram Nirbhan Ejaj

Lakadawala and A1, A3. And therefore computer print outs which are in

the nature of secondary evidence which are proved as per certificate issued

by each Nodal Officers by their oral evidence will have to be read in the

evidence.

82. On careful scrutiny of computer print out Ex.196 it is seen that on

2/10/11 at about 12.16 pm. there was call from mobile of A3 having no.

9125170495 to Ejaj Lakadawala on his number 0015856414447(Page 81).

It may be noted that this call is of second day of firing incident i.e.

1/10/11. Another call at page 85 is of dated 8/10/11. As per Ex.109 from

another number of A3 i.e. 9987328649 there are two calls on mobile of

Ejaj Lakadawala having number 16503604678 on 19/7/11, second call

was on 20/7/11 and third on 26/7/11. Next three calls were on 27/7/11.

On 2/8/11 there are again two calls and on 10/8/11 again 2 calls. As per

...74/


Ex.90 on 9th September 2011, there was one call from Ejaj Lakadawala

having number 0000000000 and mobile number is 9819859787 of PW15

Akram Nirbhan. From same mobile there was another call on same mobile

of PW15 Akram Nirbhan on 15th September, 2011. As per page 85 of Ex.90

there was call from Ejaj Lakadawala from his mobile number

34440000000000 on aforesaid mobile of PW15 Akram Nirbhan on

2/10/11 at 13.66 p.m.. And from PW15 Akram Nirbhan from his aforesaid

mobile number 9819815787 there was call to Ejaj Lakadawala at 21.32

p.m. on 2/10/11 on his mobile number 0015856414447. There is another

call on 3/10/11 from Akram Nirbhan (PW15) from his aforesaid mobile

number on same mobile of Ejaj Lakadawala at 23.05 p.m. Ex.97

(Page113) shows that on 1/10/11 at 19.43 p.m., there was phone call

from 7666293682 on mobile of Ejaj Lakadawala 15467367532 and

location of said call is (as per last column) was Mira Desai Road, Andheri.

On same date 1/10/11 at about 20.26 p.m. there was another call from

A3 Prashant Rao from his mobile number 7666293682 on above referred

mobile of Ejaj Lakadawala 16467367532. As far as computer print out Ex.

101 is concerned A3 Prashant Rao from his mobile number 9819815787

made a phone call to PW15 Akram Nirbhan on his above referred mobile

number 9819815787. EMEI number of his mobile was 358251042534900.

On same date 3 calls were made by A3 Prashant Rao on aforesaid mobile

of PW15 Akram Nirbha around 12 p.m. from Mira Road location. It may

be noted that as per memorandum and seizure panchanama Ex.52 and 53

mobile having above referred EMI is seized from wife of accused A3 from

his house having location Mira Road. Again as per Ex.97 as per entry dated

...75/


24/9/11 at 17.56 p.m. location of mobile of A3 7666293682 and that of

A1 Riyaz of mobile number 8898341106 was near J.J. Hospital fly over

from which site they made call to each other, date prior to incident date of

firing.

83. Having gone through the above discussed relevant entries from

computer print outs which are exhibited documents in respect of which

there is also direct evidence from mouth of Nodal Officers and two

investigating officers, it has to say that prior to firing incident there were

phone calls to PW15 Akram Nirbhan from different Internet mobile calls

and also prior to and after incident as per above referred incoming and out

going calls. There was also talk in between A3 and Ejaj Lakadawala

during aforesaid period as per computer print out. After going through the

relevant dates and time of incoming and outgoing calls from mobiles of

PW15, A3 and Ejaj Lakadawala, it is seen that prior to incident of firing

which is dated 1/10/11 and after date of firing i.e. 2/10/11 and 3/10/11,

there was constant communication in between A3 and Ejaj Lakadawala.

So far as oral evidence given by PW15 specifically about threatening calls

received by him on 2/10/11 and before 1520 days of firing incident from

A3 is concerned, there is evidence in the nature of call details, from

location of mobiles and phone calls on behalf of A3 from his Mira Road

residence to PW15 Akram Nirbhan on 2/10/11 goes to show that

conspiracy was hatched in between A3 and Ejaj Lakadawala by giving

threatening calls to PW15 both prior to firing incident and after incident.

Ex.197 which is having location of J.J. Fly over area dated 24/9/11 shows

...76/


that as per confession given by A3, reki of spot of incident of firing was

done by A1 and A3 which is much prior to date of incident i.e. 1/10/11.

Five mobile numbers which are given by A3 in his confession and 3

mobile numbers of Ejaj Lakadawala given by him connects through above

discussed CDR and computer print outs on relevant dates discussed above.

There is additional piece of evidence by way of oral evidence of PW15

which is also in consonance with statement U/sec. 164 of Cr.P.C. so far as

mobile number of Ejaj Lakadawala from whom he received threatening

calls that of demand of extortion amount and in reply phone calls given by

him to Ejaj Lakadawala on 2/10/11 second day of incident as per CDR

and computer print out discussed in above para in the judgment.

84. So on the basis of above stated oral and documentary evidence

about print out and CDR, it has to say that prosecution proved the fact that

A1 to A3 were in constant touch with each other prior to incident dated

1/10/11 and after incident till their arrest in trap dated 14/10/11. There

were calls between A3 and Ejaj Lakadawala at one hand and PW15

Akram Nirbhan on other hand and during aforesaid period there was

demand of extortion and threat from A3 and Ejaj Lakadawala to PW15.

Above discussed evidence of call details, if appreciated in the context with

other corroborative evidence available on record, it has to say that so far as

hatching of conspiracy for commission of incident dated 1/10/11 in

between leader of gang Ejaj Lakadawala and his sharp shooter A3 at one

hand and PW15 Akram Nirbhan at another hand including role of aiding

and abetting by of A1 and A2, evidence available on record in respect of

...77/


incident dated 14/10/11 and called details as per CDR and print outs

supports the prosecution case to prove conspiracy.

85. On point of conspiracy Learned Spl.P.P. by relaying on State

Through Superintendent of Police, CBI/SIT V. Nalini & Ors ((1999) 5

Supreme Court Cases 253) submitted that in case of conspiracy, there

may be kind of umbrellaspoke enrolment, where a single person at the

centre does the enrolling and all the other members are unknown to each

other, though they know that there are to be other members. These are

theories and in the practice, it may be difficult to tell which conspiracy in a

particular case calls into which category. It may however, even overlap.

But then there has to be present mutual interest. Persons may be members

of single conspiracy even though each is ignorant of the identity of many

others who may have diverse roles to play. It is not a part of the crime of

conspiracy that all the conspirators need to agree to play the same or an

active role. From above observation regarding conspiracy from supra case,

it is say of prosecution that though A1 and A2 have not played active role

in firing of incident, by their act of abetting and aiding to accused no.3 and

ultimately to leader of gangster Ejaj Lakadawala conspiracy towards

commission of the offence in the present case is proved by prosecution.

While rebutting on aforesaid argument of prosecution, Learned

Advocate for A1 by relaying on Dipti Prakash Banerjee V. Satyendra

Nath Bose National Centre for Bais Sciences, Calcutta & Ors. ((1999) 3

Supreme Court Cases 60) submitted that in case of criminal conspiracy

...78/


U/sec. 120(B) of I.P.C., prosecution must establish a connection between

alleged crime and act done pursuant to the same conspiracy. It is observed

by Hon'ble Supreme Court, in this case that it is no doubt true that it is

difficult to establish conspiracy by direct evidence and therefore, from

established fact an inference could be drawn but there must be some

material from which it would be reasonable to establish a connection

between the alleged conspiracy and the act done pursuant to the said

conspiracy. While applying such observation and finding of Hon'ble

Supreme Court to the fact of our case, it may be stated that in the present

case, there is direct evidence so far as firing incident is concerned.

Pursuant to the firing incident, there is recovery of weapons, fire arms and

bullet from injury of injured. Together with these two important facts,

there is evidence in the form of confessional statement. So on the basis of

such established fact, it has to say that with connecting evidence between

alleged conspiracy (which is proved by prosecution with the help of CDR),

act done pursuant to the said conspiracy is proved in the present case. By

going one step ahead so far as case in hand is concerned it can be said that

conspiracy is established by prosecution with the help of direct evidence

discussed above.

Group VI

Evidence of investigating officers.

86. So far as FIR of incident dated 1/10/11 Ex.46 & 46A is concerned,

there is evidence of PW34 ASI Bondre who was attached to J.J. Marg

...79/


police station and took FIR of injured Sohel Khan by registering CR.NO.

138/11 U/sec.307, r/w 34 of IPC and 3/25,27 of Arms Act. By his

evidence station diary entry of said FIR Ex.203 is also placed on record.

Admittedly Ex.46 was in the name of two unknown persons about firing

incident. Oral evidence of PW34 is corroborated by 1st IO PW35 PI

Dhanawade by deposing on oath that on 1/10/11 CR no.138/11 was

registered at J.J.Marg police station. As regard to FIR Ex.46 about firing

incident and its proof there is detailed discussion in relevant paras of the

judgment. As per evidence of PW33 Bhosale who was working as duty

officer at Nagpada police station on 14/10/11, Crime Branch UnitIII

officer Mr. Chavan and others had come to Nagpada police station and

gave information by ASI Chalke about seizure of fire arms from A1 to A3.

He registered FIR as per statement of ASI Chalke as LAC no.2220/11

U/sec. 3/25,27 of Arms act. As true copy of FIR was filed on record, by his

evidence prosecution produced on record station diary entry of LAC no.

2220/11 vide Ex.201 about registration of FIR and seizure of fire arms

from accused no.1 to 3 as per LAC no.2220/11. Oral testimony of PW33

is corroborated by PW35. So far as FIR lodged by ASI Chalke as per LAC

no.2220/11 stated above is concerned, it is evidence of PW35 that further

investigation of accused and seized arms as per directions of Additional

Commissioner was transferred from LAC no.2220/11 to LAC no.35/11 of

DCB CID and API Tawade of UnitIII filed chargesheet of LAC no.35/11

who was also investigating officer.

87. PW28 API Tawade by giving corroboration to PW33 and 35 in his

...80/


evidence in para no.8 deposed that after seizure and preparing

panchanama, accused no.1 to 3 were brought to Nagpada police station.

ASI Chalke lodged FIR and after registration of FIR, special LAC no.35/11

was registered at Crime Branch detection Branch. In cross examination, he

stated that he himself made station diary entry of special LAC no.35/11.

So far as registration of LAC no.2220/11 is concerned, it is version of

PW35 in cross examination that after panchanama Ex.112, he had gone to

Nagpada police station for registration of LAC no.2220/11. It is his further

version that parallel investigation in CR registered of J.J. Marg police

station and DCB CID UnitIII was going on after incident dated 14/10/11.

He also admitted that he was not knowing about involvement of accused in

CR No.138/11 till 19/10/11 from their arrest as matter was under parallel

investigation in both LACs.

88. After going through above stated evidence adduced by PW28,33,

34,35 and 36, so far as investigation part is concerned, they produced on

record oral as well as documentary evidence to say that LAC no.2220/11

registered at J.J. Marg police station was being conducted alongwith CR

no.138/11 which was initially registered at DCB CID at special LAC no.

35/11. It is admitted fact that after transfer of CR No.138/11 to DCB CID,

it was registered at CR no.86/11 after invoking Sec. 3(i)3(ii)3(iv) of

MCOC Act. So far as evidence available on record in proof of incident

dated 1/10/11 is concerned, already discussion is made in relevant paras

of the judgment including evidence of PW34 discussed above. So also as

regard to incident dated 14/10/11, discussion is also made in relevant

...81/


paras of the judgment about evidence of PW28 and also that of PW35. So

far as further evidence of PW35 is concerned, he gave evidence about

letter correspondence vide Ex.208 to 210 about transfer of investigation

papers from J.J. Marg police station to DCB CID and also about handing

over investigation of CR no.138/11 to him by Sr.PI. Marde. By adducing

evidence about interrogation made with A1 to A3 about seized fire arms,

he completed chain of evidence by giving corroboration to most of the

prosecution witnesses examined in proof of documentary evidence. He not

only gave evidence about memorandum and seizure panchanama vide Ex.

52 and 53 about mobile and SIM card seized from house of A3 from Mira

Gao but also gave corroboration about seizure, other mobiles and SIM card

from A1 as well as accused no.5. By his evidence, prosecution produced

on record print out and CDR which are proved by evidence of PW5 to 10

and 31. According to him, he recorded statement of all Nodal officers

including supplementary statement of some of them, as per evidence in

para no.7 to 10 of his evidence.

89. In his cross examination defence has brought on record some lapses

and lacunae on part of prosecution about spot of incident dated 14/10/11

and how suspect came on spot, about nature of seizure including packing

material used at the time of seizure and how they proceeded to effect trap.

He admitted that after seizure of fire arms from accused, those were given

in possession of API Tawade(PW28). He admitted that personal search of

panch witnesses were taken and so also their personal search was given to

panch witnesses and it is also mentioned in panchanama Ex.112. He

...82/


admitted that signature of either accused was not obtained in

panchanama Ex.112. He was also cross examined about log book entry and

vehicle used in incident dated 14/10/11.

90. So far as oral evidence of PW36 IInd IO Yashwant Vatkar is

concerned, according to him, on 1/11/11 investigation came to him as per

order of Joint Commissioner vide Ex.219 after invoking MCOC Act from

PW35 PI Dhanawade. His evidence is mostly on interrogation made with

accused no.2 and 3 and their desire and voluntariness in giving confession.

So far as confession given by A2 and A3 is concerned, by his evidence

prosecution placed on record correspondence made by him to DCP ZoneIII

and IV vide Ex.220,224 which also includes letter Ex.223 and 224

demanding copies of confession statement from both DCPs. According to

him, after going through confession of both accused, he revealed that

Prashant Rao was in constant touch with Ejaj Lakadawala head of Crime

Syndicate and by way of conspiracy committed incident dated 1/10/11.

Therefore, on the basis of interrogation with A3, involvement of accused

Zakariya Khan @ Jiki was revealed. He also gave evidence of letter

correspondence with SEO for T.I. Parade Ex.226. In his further evidence,

he produced on record certified copies of chargesheets which are pending

against Ejaj Lakadawala and accused Prashant Rao prior to both incident,

about approval given by Commissioner of Police and sanction to prosecute

accused under MCOC Act. In cross examination he admitted that there is

no chargesheet filed against accused in between and no documentary

evidence is collected in respect of mobile of international call. He also

...83/


admitted that there is no documents about point of telecommunication

alleged against accused Ejaj Lakadawala. In his further evidence, it is his

say that permission of Magistrate is not obtained for voluntarily recording

confession of accused and so far as possession of arms by accused nos. 1 to

3 in incident dated 14/10/11 he submitted chargesheet before M.M.37th

Court is filed. Furthermore, he admitted that proposal of prior approval

was not filed with chargesheet. He admitted that in both chargesheet Ex.

229 and 230 Ejaj Lakadawala is shown as wanted accused. If one perused

chief as well as cross examination of two main investigating officer PW35

and 36 together with PW28,33 & 34 alongwith documentary evidence

produced by them on record, it has to say that by their evidence

prosecution proved chain of evidence right from lodging for FIR Ex.46 and

LAC no.2220/11 (Ex.201) till prosecuting accused nos. 1 to 5 by way of

chargesheet before Special Court. Having seen all above discussed

evidence, then remains important aspect about nature of above discussed

evidence and proof required under MCOC Act, Arms Act and IPC to prove

charges levelled against accused nos. 1 to 5.

91. So far as confession of A2 and A3 Ex.184186 and Ex.137138 is

concerned, there is evidence of DCP (PW16) and DCP (PW29). As per

evidence of PW36, as per order of Joint Commissioner of Police, above

DCPs ZoneIII & IV were requested to record confession of both accused

and as per letter correspondence discussed in relevant para of the

judgment on 8 and 9/11/11 and aforesaid two DCPS recoded their

confession. It is evidence of PW36 that as per letter Ex.219, Joint C.P.

...84/


granted approval U/sec. 23(1)(a) of MCOC Act and as per said approval,

permission was granted to apply provisions to MCOC Act and to

investigate the case with further directions that PW36 shall obtain

sanction from Commissioner of Police to file chargesheet. It is also his

evidence that after completing investigation, he forwarded investigating

papers for obtaining sanction under MCOC alongwith two certified copies

of chargesheets filed against accused Ejaj Lakadawala as head of

Syndicate and other members vide Ex.229 and 230 and Magistrate has

taken cognizance of those chargesheets. According to him, after

completing investigation, he submitted proposal to Commissioner of Police

through Joint C.P. vide Ex.193. He made discussion with Commissioner of

Police by submitting all necessary documents and ultimately as per

sanction granted U/sec. 3(i)(ii),3(2),3(4) of MCOC Act, chargesheeet is

filed against in all eight accused including three wanted accused.

92. By aforesaid evidence of PW36 prosecution proved certified copies

of two chargesheets Ex.229 and 230 in which Ejaj Lakadawala is accused

in CR no.27/05 of Versova police station of offence U/sec. 387,307,120(B)

of IPC, 3/25,27 of Arms Act and 3(i)(ii),3(2),3(4)3(5) of MCOC Act. Ex.

230 certified copy of chargesheet filed before 37th ACMM Court of CR no.

205/04 of Juhu police station for the offences U/sex. 387 r/w 34 of IPC

against Ejaj Lakadawala and others including Mohd. Jafar one of the

accused of the present case. On the basis of previously instituted two

chargesheets Ex.229 and 230 filed on record in support of oral evidence of

PW36 and when cognizance was taken by Magistrate of 37th ACMM Court

...85/


and another case which is under MCOC Act of which cognizance is taken

by Special Court, it has to say that in compliance with Sec.2(d) of MCOC

Act, sufficient material is brought on record by prosecution so far as

continuing lawful activity by head of Organize Crime Syndicate or on his

behalf members prior to commission of present incident is concerned.

PW30 Anup Patnaik who had accorded sanction Ex.193 in his evidence at

Ex.192 deposed that ACP Yashwant Vatkar was investigating officer of CR

No.86/11 under MCOC Act. He tabled all investigation papers before him

for according sanction. On perusal of papers and discussion with him and

other Sr. officers, he was satisfied to accord sanction to prosecute arrested

as well as wanted accused and others (Ex.193). He admitted in cross

examination that confession given by A2 and A3 was not part of sanction

order and there is nowhere mention in order that he perused confession

statement of accused. To said suggestion, it is his say that he did not feel

necessary to make mention about confessional statement perused but his

sanctioned order is after perusal of confession statement of accused.

93. During the course of argument, Learned Advocate for A1 to A3

submitted that at the time of granting approval, copies of two chargesheets

were not before Commissioner of Police. To that effect, there is admission

given by PW36 in his cross examination that there is no reference about

details of chargesheet in approval Ex.219. He also admitted that prior to

approval, proposal was sent by Sr.PI. Marde through him which is not filed

with chargesheet. Learned Advocate for A1 and A3 during the course of

argument vehemently argued about evidence required to prove acts which

...86/


are mentioned in sec. 2(d) of MCOC Act i.e. continuing unlawful activity,

2(e) Organized Crime and 2(f) Organized Crime Syndicate. On the basis

definition of aforesaid three provisions and requirement of section 3(i)(ii),

3(2),3(4) of MCOC Act, it is argument on behalf of denfence that there

must be evidence in respect of gaining pecuniary benefit by Organized

Crime Syndicate, its head or on his behalf any member such Syndicate

which may be group of two or more acting either singular or collectively.

According to the defence, evidence which is required to be proved all such

acts as per section 3 of the Act is completely missing in the prosecution

case.

94. Such argument of defence is countered by Spl. P.P. by submitting the

argument that for the purpose of proving continuing Lawful activities by

head of Syndicate namely Ejaj Lakadawala before period of 10 years of

incident, chargesheet Ex.229 and 230 cognizance of which is already taken

by MCOC Court and 37th ACMM Court together with oral evidence of

PW30 and 36 is sufficient compliance of section 2(d) of the Act.

According to him as per confession of A2 and 3, evidence in the nature of

computer print out and CDR which are proved by Nodal officers together

with evidence of PW15 and subsequently commission of incident of firing

on PW2 goes to show that head of Organized Crime Syndicate Ejaj

Lakadawala of his own and through A3 gave threat of extortion to PW15

and on his failure to comply demand through member of his Syndicate A3

with aid of A2 did act of firing. It is also his submission that subsequent

recovery of fire arms and other related evidence which proved both

...87/


incident supports prosecution in proving requirement of 2(e) and 2(f)of

the Act. Learned Spl.P.P. by relaying on Mohd. Farooq Abdul Gafur & Anr.

V. State of Maharashtra (2010 AIR SCW 2574) submitted that conviction

can be based solely on the basis of confessional statement of main accused

itself. Similarly, conviction may be awarded on the basis of confessional

statement of coaccused which could be used and relied upon for purpose

of conviction. Going ahead on the basis of supra citation which is under

MCOC Act itself, it is his say that confessional statement of coaccused is

admissible as a piece of substantive evidence. Furthermore, according to

him, in present case, there is not only confession of accused no.3 but also

confession of coaccused A2 which supports case of prosecution in proving

initial ingredient of section 2(e) of the Act namely unlawful activity by

Crime Syndicate with object of gaining pecuniary benefit. According to

him, in confession of both accused, after completing incident of firing, Rs.

20,000/ was paid by accused no.1 to accused no.2 through his friend

Jignesh, so also Rs.50,000/paid by wanted accused Chacha to A3 as per

confession.

95. As per argument advanced by Spl.P.P. conspiracy amongst accused

no.1,2 and 3 for committing incident of firing is as per requirement of

section 120(B) of IPC, definition of which is given in sec. 120(A) of IPC. As

per observation made by Hon'ble Supreme Court in already cited case

State through superintendent of police,CBI/SIT V. Nalini and Ors., it is

not a part of crime of conspiracy that all the conspirators need to agree to

play the same or an active role. On the basis of such observation made by

...88/


Hon'ble Supreme Court regarding offence of criminal conspiracy, according

to him, in the present case act of criminal conspiracy amongst accused no.

1 to 3 is to be derived not only from confession of A2 and A3 but also

from other circumstances that of incident dated 1/10/11, 14/10/11 and

evidence produced by prosecution in proof of both needs to be taken into

consideration. Ultimately, it is his say that conspiracy which was done

amongst accused nos. 1 to 3 was for an behalf of head of Syndicate Ejaj

Lakadawala which ultimately culminated by over act of incident of firing

which is substantiated by way of recovery of fire arms as per second

incident dated 14/10/11.

Findings

96. From all above discussed submissions made in the argument on

behalf of Learned Advocate for A1 to A3 as well as Learned Spl P.P. and

after going through oral evidence of all relevant prosecution witnesses

coupled with the documentary evidence proved by prosecution in the

present case, I came to the conclusion that offences of conspiracy U/sec.

120(B) of IPC is proved by prosecution against accused nos.1,2 and 3.

Similarly as discussed in relevant paras of the judgment about both

incident dated 1/10/11 and 14/10/11, it has to hold that both incidents

are proved by prosecution with clinching evidence, most specifically

incident of firing dated 1/10/11 against accused no.2 and 3 and possession

of fire arms, cartridges and other articles recovered from A1 to A3 as per

panchanama Ex.112. Thereafter next question is which clauses of section

...89/


3 of MCOC Act can be said as proved by prosecution against which accused

and as per charge Ex.31. So also evidence available on record in proof of

charge under Arms act in reference to recovery of fire arms from accused

nos. 1 to 3 and its connection with incident of firing, of course within

meaning of criminal conspiracy.

97. As per evidence of PW20, she gave sanction order Ex.158. After

going through FIR, panchanama, FSL report and request letter issued by

ACP D1 South, Crime Branch and after applying mind, she found prima

facie case from material on record to accord sanction to prosecute accused

Prashant Rao, who was found in possession of country made pistol and

cartridges without requisite license. By her evidence, prosecution proved

sanction to prosecute A3 U/sec. 3/25,27 of Arms act. Next connecting

evidence brought on record by prosecution is regarding unauthorized

possession of Arms by A1 to A3 and contravention of section 37 of

Bombay Police Act. By the evidence of PW35 prosecution produced on

record station diary extract about promulgation of order passed by Deputy

Commissioner of Police dated 22/9/11 alongwith gazette notification

which is filed on record in the evidence of PW35 collectively marked as

Ex.214. Station diary entry shows that order passed by Deputy

Commissioner of Police about unauthorized possession of Arms U/sec. 37

of Bombay Police Act is promulgated in area of incident on 22/9/11. This

oral evidence of PW20 and PW35 is to be appreciated in reference to

above referred sanction order Ex.158 and station diary entry about

promulgation of order dated 22/9/11 U/sec. 37 of Bombay Police Act in

...90/


proof of both charges under Arms Act and Bombay Police Act.

98. During the course of argument, Learned Advocates for A1 and A3

on the basis of charge U/sec. 3 r/w 25 of Arms Act submitted that Ex.158

is in respect of sanction to prosecute against A3 only. According to them

sanction accorded U/sec. 39 of Arms Act speaks that no prosecution shall

be instituted against any person in respect of offences U/sec. 3 without

previous sanction of District Magistrate. Charge Ex.31 also shows that

only accused no.3 is charged U/sec. 3 r/w 25 of Arms Act. It is true that as

per story of prosecution accused no.2 and 3 were involved in firing

incident and found in possession of fire arms and cartridges. As per

subsequent incident dated 14/10/11 all three were found in possession of

fire arms and cartridges. It is also true that as per oral as well as

documentary evidence produced on record on behalf of prosecution

discussed in relevant paras of the judgment accused no.3 used fire arm

pistol in the incident of firing. Though charge framed under Arms Act

covers only accused no.3 as there is mention in the charge “that rest of the

accused and wanted accused did possess fire arms and ammunition like

pistol cartridges”, it is fact that as per section 39 previous sanction is only

against accused no.3 as per Ex.158. Learned Advocate for A3 has drawn

my attention towards initial ingredient of section 3 and 5 which are

punishable by way of section 25 of Arms Act. In absence of specific charge

framed against accused no.1 and 2 under the Arms Act, it has to say that

so far as accused no.1 and 2 is concerned though chargesheet is also filed

U/sec. 27 of Arms Act and though prosecution brought on record evidence

...91/


against them under Arms Act in absence of charge said evidence can not be

appreciated so far as role of A1 and A2 is concerned.

99. On the basis of discussion of oral and documentary evidence made

in group I to VI in above paras of the judgment including argument

advanced by Learned Spl. P.P. and Learned Advocate for A1 to A5, while

giving finding to point nos. 1 to 8 it has to say that

confession given by A2 and A3 is proved by prosecution on

the basis of oral evidence of PW16,25,26 and PW28,29 and 30. Approval

to investigate Ex.219 and sanction to prosecute Ex.193 under MCOC Act

together with previously instituted two chargesheets against head of Crime

Syndicate or its member is proved by prosecution by filing two

chargesheets Ex.229 and Ex.230 in the evidence of PW30,35 and 36.

On the basis of confession of A3 and oral evidence of PW15

and PW12 there is sufficient evidence on record to say that act of firing

was done by A2 and A3 and it was nothing but unlawful activity by

member of Organized Crime Syndicate under the head of Ejaj Lakadawala

with object of gaining pecuniary benefit. While giving affirmative findings

in compliance of section 2(d),2(e) and 2(f) punishment of which is

provided in section 3 of MCOC Act, it has to say that prosecution proved

relevant charges framed against accused no.1 to 3 stated above.

To prove offences of conspiracy, there is corroboration to

...92/


aforesaid evidence through mobile numbers, CDR and computer print out

from Nodal officer PW5 to PW11 and 31. Overt act of firing incident as

per above discussed points can be said as ultimate culmination of

conspiracy by accused no.1,2 and 3. It is also supported by way of

recovery of fire arms and ammunition from A1 to A3 in proof of which

evidence is discussed in group II under the head “incident dated

14/10/11”. Of course to prove incident of firing there is detailed evidence

discussed in groupI under the head of incident dated 1/10/11.

100. So far as charge U/sec. 307, r/w 120(B) of IPC on the basis of

material evidence came on record in the evidence of injured Sohel Khan

and eyewitness Sohel Dalvi and medical officer PW23, during the course

of argument Learned Advocate for A1 to A3 raised doubt about case of

prosecution in firing incident as well as injury received by PW2. As per

material in cross examination of PW2 injured after first bullet he

immediately ducted and took action to save himself. However, he received

bullet at his leg. He also stated in his cross examination that assailant was

pointing weapon towards his chest while firing of all three shouts. When

such was material in cross examination of injured, evidence from mouth of

eyewitness PW27 brought on record speaks he witnessed that assailant

was in front of injured. To specific question whether he felt that assailant

was trying to kill injured, it was his say that there was no intention of

killing of assailant. On the basis of such material brought in cross

examination of injured and eyewitness, from mouth of Doctor PW23

defence has brought on record admission that if assailant was facing

...93/


towards injured, injury mentioned in certificate is not possible. Having all

such sort of material brought on record in evidence of three witnesses,

during the course of argument Learned Advocate for accused submitted

that possibility of receiving bullet injury at leg is not there and it creates

doubt in firing incident. It is true that in the evidence of both injured and

eyewitness, it has come on record that both PW2 and assailant (A3) who

was sitting on bike with A2 were facing towards each other and in front of

each other. However, while appreciating such position of assailant and

injured though there is aforesaid admission given by Doctor that injury

mentioned in certificate is not possible, if assailant was facing towards

injured, it may be noted that both A2 and A3 were at higher

position(level) than injured as they both were on bike and injured was

ducked. One important fact which was told by injured before the Court

stated above is that after first bullet he took action to save himself and he

immediately ducked. Having such version of injured on record, in my

opinion, whatsoever stated by eyewitness and Doctor about facing of

injured and assailant against each other can not be given more importance

as PW2 injured specifically deposed that he immediately ducked after first

bullet and received thereafter one amongst two bullet at his leg.

101. Identity of A1 to A3 is proved by prosecution on the basis of T.I.

parade Ex.153 which is held by PW19 in which PW2 and 27 identified

A2 and A3. And while proving panchanama Ex.112, there is identification

of A1 alongwith other two. Of course in addition to above stated oral

evidence of witnesses, there is corroboration to evidence of complainant

...94/


from PW34 and in proof of LAC no.2220/11, there is evidence of PW33.

So far as second incident dated 14/10/11 is concerned, both Ist and IInd IO

i.e. PW35 and PW36 ultimately completed chain of evidence right from

lodging FIR and LAC no.2220/11 in respect of both incident till producing

on record medical evidence, forensic expert i.e. FSL report, sanction to

prosecute under Arms Act, approval to investigate CR under MCOC Act

and ultimately sanction to prosecute accused U/sec. 23(2) of MCOC Act.

Conclusion.

102. In view of finding given in above para of the judgment so far as

point no.1 is concerned, I hold that prosecution proved the fact that

accused nos. 1,2 and 3 by way of conspiracy agreed to do illegal act of that

extortion by threatening PW15 on behalf of head of Crime Syndicate Ejaj

Lakadawala and accused no.2 and 3 by committing firing incident and

ultimately offences U/sec. 120(B) r/w 387 of IPC.

103. So far as point no.2, though prosecution proved the fact that

accused no.1 to 3 in furtherance of their common intention and pursuant

to act of criminal conspiracy committed Ist incident ; however so far as

offence of criminal intimidation that of threatening to PW15 Mohd. Akram

for extortion amount offence U/sec. 506II r/w 387 r/w 34 of IPC is

proved only against accused no.3

104. So far as essential ingredient to prove offence U/sec. 307 of IPC is

concerned, prosecution has to prove act done by assailant with such

intention or knowledge and under such circumstances that, if assailants by

...95/


that act caused death, he would be guilty for murder. If such circumstance

is proved by prosecution as per earlier part of section 307, punishment

may be to the extent of 10 years and subsequent ingredient of section

shows that if by such act and under such circumstances if hurt or injury is

caused, then offender shall be liable for imprisonment for life. Meaning

thereby if by such act of assailant, if injury is caused, there is severe

punishment for the offence of attempt to murder. And if injury/hurt is not

caused and assailant was having only intention or knowledge that under

such circumstances, if he by that act caused death, he would be held guilty

of murder, then as per earlier part of 307, punishment provided is some

what lesser. If one has to appreciate nature of firing incident coupled with

all related evidence brought on record by prosecution in proof of incident

dated 1/10/11 discussed in groupI of evidence, in my view aforesaid

material brought on record by defence will not affect the case of

prosecution to say incident of firing is got up and prepared by prosecution.

Ultimately I hold that prosecution proved the fact that accused nos. 2 and

3 are guilty for offences U/sec.307 r/w 120(B) of IPC.

105. In view of discussion made in relevant sub para of finding, it is

already held that there is only material on record to prove offences U/sec.

3 r/w 25 of Arms Act against accused no.3. Ultimately while giving finding

to point no.4, it has to hold that accused no.3 is guilty for the offences

U/sec. 3 r/w 25 of Arms Act. So far as offence U/sec. 37 r/w 135 of

Bombay Police Act is concerned, it is already held in relevant para of the

finding that accused nos. 2 and 3 were not only found in possession but

...96/


there is transfer of pistol and use of pistol by accused no.3 and it is

contravention of order passed by Deputy Commissioner of Police which is

published in Government Gazette of State of Maharashtra as filed on

record vide Ex.214. Hence, I hold that point no.5 is proved by prosecution

against accused no.2 and 3 only. At this stage, it may be noted that though

there is also material against accused no.1 so far as offences under

Bombay Police Act is concerned on account of non framing of charge

against him no finding can be given against accused no.1

106. So far as offences punishable U/sec. 3(i)(ii),3(2),3(4) of MCOC Act

is concerned, already detailed discussion about oral evidence and

documentary is made in relevant paras of evidence from groupI to group

IV including paragraphs of finding. On basis of all those observation and

finding ultimately, I hold that accused nos.1, 2 and 3 some time singly or

some time jointly worked for and on behalf of Ejaj Lakadawala head of

Crime Syndicate with object of gaining pecuniary benefit and by way of

firing incident conspiracy which was hatched with wanted accused Ejaj

Lakadawala and A3 was taken in action with the help of A1 and A2 who

aided and abetted in commission of organized crime. Firing arms and

ammunition recovered by from A1 to A3 is supporting evidence of

prosecution to prove act preparatory is organized crime in the present

case. Ultimately, I hold that accused nos. 1,2 and 3 are guilty for offences

U/sec. 3(i)(ii),3(2),3(4) of MCOC Act.

107. So far as role of accused no.4 and 5 is concerned, on scrutiny of

...97/


whole evidence discussed right from PW1 to PW36 including

documentary evidence available on record, it has to say that except mobile

seized at their instance that too in the name of third person and related

CDR, there is no material against them. There is also no evidence against

A4 and A5 to show that they were having any connection or contract with

either A1,A2 or A3. So having their connection with wanted accused

Ejaj Lakadawala is far away from case of prosecution. During the course of

argument, Learned Spl. P.P. plainly admitted that there is no evidence

against accused no.4 and 5. Learned Advocate for A5 in the course of

argument also submitted that as per Ex.49 only two mobiles and two SIM

cards from house search of A5 that too in the name of others are seized.

And except such seizure of mobiles, there is no connection of A5 with

either A1, A2 or A3 or wanted accused Ejaj Lakadawala. It is also his

say that there is no reference of name of either A4 and A5 in confession

of either accused. He is not part of any meeting or conspiracy and call

details also do not support prosecution to prove connecting link of A5

with A1 to A3 or wanted accused. Therefore, on the basis of such and

other material available on record, it has to hold that prosecution failed to

prove any of the charges against accused nos. 4 and 5.

108. From all above discussion and evidence available on record

including finding given to each point in relevant paras of the judgment,

ultimately I hold accused nos. 1 to 3 guilty for respective charges discussed

above. By giving finding to each point accordingly, I stop here to hear

accused nos. 1,2 and 3 on point of sentence.

...98/


Date : 17/11/2014 (P.R.DESHMUKH) Special Judge,

Under MCOC Act, Greater Mumbai.

109. Accused no.1 is explained that he is held guilty for offence

U/sec. 120(B) r/w 387 of IPC and for offence U/sec. 3(1)(ii),3(2) and

3(4) of MCOC Act. Accused no.2 is explained that he is held guilty for

offence U/sec. 120(B) r/w 387, 307 r/w 120(B) of IPC , U/sec. 37/135 of

Bombay Police Act and and for offence U/sec. 3(1)(ii),3(2) and 3(4) of

MCOC Act. Accused no.3 is also explained that he is held guilty for the

offence U/sec. 120(B) r/w 387, U/sec. 506II r/w 387, 307 r/w 120(B) of

IPC, and U/sec. 3/25 of Arm Act, r/w 120(B) of IPC and for offence U/sec.

3(1)(ii),3(2) and 3(4) of MCOC Act. Their Advocates are absent. They

are informed that their submission on point of sentence will be heard at

1.30 p.m.

110. Heard accused no.1 on point of sentence. He submitted that he is

having aged parents, young children and wife whose both hands are

handicap He prayed for leniency. Learned Advocate for accused no.1

submitted that there is no previous conviction and considering provisions

contend in the Act for each offences, minimum punishment be awarded.

111. Heard Accused no.2 on point of sentence. He submitted that he is

having young children and wife. There is no earning member for his

...99/


family. He prayed for leniency. Learned Advocate for accused no.2

submitted that there is no previous conviction or criminal record against

A2. Considering nature of offences minimum punishment be awarded.

112. Heard Accused no.3 on point of sentence. He submitted that he is

having two children and wife. He prayed for leniency. Learned Advocate

for accused no.3 submitted that there is no previous conviction or criminal

record against A3. Considering the same minimum punishment be

awarded.

113. Heard Spl. P.P. on point of sentence on behalf of prosecution he

submitted that by considering object of MCOC Act and nature of offence

committed by Accused nos. 1 to 3 maximum punishment be awarded to

them.

114. Upon hearing accused and their respective Advocates on point of

sentence as well as Spl. P.P. for State and having gone through punishment

provided for each offence in respective Acts, in my view following order

will meets the end of justice.

ORDER

1. Accused no.1 Riyaz Ahmad Hussain Shaikh @ Bhaiji, accused no.2

Nilesh William Jatanna @ Annu and accused no.3 Prashant Prasad Rao @

Sunny are hereby convicted as under;

1(a). Accused no.1 Riyaz Ahmad Hussain Shaikh @ Bhaiji is

...100/


hereby convicted for the offences punishable U/sec. 120B r/w 387 of IPC

and he is sentenced to suffer R.I. for 5 years and to pay fine of Rs.5000/.

In default of payment of fine he has to suffer more R.I. for 1 years.

1(b). He is also convicted for the offence punishable U/sec. 3(1)(ii)

of MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to

pay fine of Rs.5 lakh. In default of payment of fine he has to sufficer RI for

2 years.

1(c). He is also convicted for the offences punishable U/sec. 3(2) of

MCOC Act 1999 and he is sentenced to suffer R.I. for 10 years and to pay

fine of Rs.5 lakh. In default of payment of fine he has to sufficer RI for 2

years.

1(d). He is also convicted for the offence punishable U/sec. 3(4) of



years.

2. Accused no.2 Nilesh William Jatanna @ Annu is hereby convicted

for the offences punishable U/sec. 120B r/w 387 of IPC and he is

sentenced to suffer R.I. for 5 years and to pay fine of Rs.5000/. In default

of payment of fine he has to suffer more R.I. for 1 years.

2(a). He is also convicted for the offences punishable U/sec. 307

r/w 120B of IPC and he is sentenced to suffer R.I. for 10 years and to pay

fine of Rs.5000/. In default of payment of fine he has to suffer more R.I.

for 2 years.

2(b). He is also convicted for the offence punishable U/sec. 37/135

...101/


of Bombay Police Act, and he is sentenced to suffer R.I. for 6 months and

to pay fine of Rs.1000/. In default of payment of fine he has to suffer

more R.I. for 2 months.

2(c). He is also convicted for the offence punishable U/sec. 3(1)(ii)


pay fine of Rs.5 lakh. In default of payment of fine he has to sufficer RI for

2 years.

2(d). He is also convicted for the offences punishable U/sec. 3(2) of



years.

2(e). He is also convicted for the offence punishable U/sec. 3(4) of



years.

3. Accused no.3 Prashant Prasad Rao @ Sunny he is hereby convicted

for the offences punishable U/sec. 120B r/w 387 and he is sentenced to

suffer R.I. for 5 years and to pay fine of Rs.5000/. In default of payment

of fine he has to suffer more R.I. for 1 years.

3(a). He is also convicted for the offence punishable U/sec. 506II

r/w 387 of IPC and he is sentenced to suffer R.I. for 3 years and to pay fine

of Rs.1000/. In default of payment of fine he has to suffer more R.I. for 6

month.

3(b). He is also convicted for the offence punishable U/sec. 307

...102/


r/w 120B of IPC and he is sentenced to suffer R.I. for 10 years and to pay

fine of Rs.5000/. In default of payment of fine he has to suffer more R.I.

for 2 years.

3(c). He is also convicted for the offence punishable U/sec. 3 r/w

25 of Arms Act r/w 120(B) of IPC and he is sentenced to suffer R.I. for 3

years and to pay fine of Rs.1000/. In default of payment of fine he has to

suffer more R.I. for 6 month.

3(d). He is also convicted for the offence punishable U/sec. 37/135

of Bombay Police Act, and he is sentenced to suffer R.I. for 6 months and

to pay fine of Rs.1000/. In default of payment of fine he has to suffer

more R.I. for 2 months.

3(e). He is also convicted for the offences punishable U/sec. 3(1)(ii)


pay fine of Rs.5 lakh In default of payment of fine he has to sufficer RI for

2 years.

3(f). He is also convicted for the offences punishable U/sec. 3(2) of



years.

3(g). He is also convicted for the offences punishable U/sec. 3(4) of


fine of Rs. 5 lakh. In default of payment of fine he has to sufficer RI for 2

years.

4. All sentences awarded to accused nos.1,2 and 3 for offences in

...103/


respective Acts shall run concurrently.

4(a). Accused Nos.1,2 and 3 are in custody from 14/10/2011. They

are entitled for set off for undergone period.

5. Accused no.4 Mohammad Jafar Esak Madhwala @ Chacha and

accused no.5 Zakariya Bashir Khan @ Jiko @ Salim are hereby acquitted

from offences U/sec. 120B r/w 387 of IPC, 506(II) r/w 387 of IPC, 307

r/w 120(B) of IPC and offences U/sec. 3(1)(2),3(2),3(4) of MCOC Act.

6. Bail bonds of accused nos.4 and 5 stands discharged and they be set

at liberty forthwith, if not required in any other case.

7. Seized muddemal property article 1 to 30 as per list of article be

preserved for trial of wanted accused.

8. Issue standing NBW against wanted accused.

DCB CID is directed to filed separate chargesheet against wanted

accused after their arrest.

9. Certify copy of judgment be given to accused nos. 1,2 and 3 free of

cost .

10. Judgment pronounced in open Court today on 17/11/2014.

Date : 17/11/2014 (P.R.DESHMUKH) Special Judge,

Under MCOC Act, Greater Mumbai.

...104/


Dictated on : 1st, 5th, 10th,13th ,14th,17th November 2014.

Transcribed on : 3st, 6th, 11th ,14th,15th,17th November 2014.

Signed on :

.../

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