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JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 1
IN THE COURT OF SPECIAL JUDGE DESIGNATED UNDER MCOC ACT
AT GR. MUMBAI.MCOC SPECIAL CASE NO. 7 OF 2008
ALONG WITHSPECIAL CASE NO.16 OF 2008
ALONG WITHSPECIAL CASE NO.3 OF 2009.
ALONG WITHSESSIONS CASE NO.529 OF 2007.
The State of Maharashtra. ... Complainant V/s.
1. Arun Gulab Gawali. )Age: 58 years. )R/o. Geetai Coop. Hsg. Society, )3rd floor, Bapurao Jagtap Marg, )Byculla, Mumbai 400 011. )
)2. Vijaykumar Harihar Giri. )Age: 30 years. )R/o. Sonu Bhoir Chawl, Shivdevi Sadan, )Kokanipada, Dahisar (E), Mumbai. )
)3. Ashokkumar Shivkant Jaiswar. )Age: 23 years. )R/o. Munshi Mahal, Shankar Sheth Chawl, )Room No. 2, Pratap Nagar Road, )Bhandup (W), Mumbai 400 078. )
)4. Narendra @ Kandi @ Guddu Lalmani Giri. )Age: 23 years. )R/o. Pande Compound, Hanuman Tekdi, )Near Yadav Tabela, Kajupada, )Dahisar (E), Mumbai. )
)5. Anil Sherbahadur Giri. )Age: 26 years. )
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 2
R/o. Room No. 401, )Ashtavinayak Society, Sangharsh Nagar, )Chandivali, Andheri (E), )Mumbai 400 072. )
)6. Sahebrao Kaluram Bhintade. )Age: 61 years. )R/o. A/204, Dhanlaxmi Coop. Hsg. Soc., )Mohili Villa, AndheriGhatkopar Link Road, )Sakinaka, Mumbai 400 072. )
)7. Sadashiv Dhondu Surve @ Bala Surve. )(Case is abated as died on 17.7.2012). )
)8. Surendra @ Suresh Vasudev Panchal. )Age: 52 years. )R/o. At & Post Rajapur, Taluka Rajapur, )District Ratnagiri. )
)9. Sandeep @ Sandy Baliram Gangan. )Age: 40 years. )R/o. 714/E, Dagdi Chawl, Room No. 28, )Bapurao Jagtap Marg, Byculla (West), )Mumbai 400 011. )
)10.Shrikrishna @ Babu Tukaram Gurav. )Age: 34 years. )R/o. Shriprasad Building, Room No. 2, )Ground floor, B.R. Nagar, Diva (E), )Thane. )
)11. Dinesh @ Dinya Laxman Narkar. )Age: 35 years. )R/o. Room No. 56, Fourth floor, )Sanjivani Prasad, Khed Galli, )Prabhadevi, Mumbai 400 025. )
)
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 3
12. Pratap Tukaram Godse. )Age: 28 years. )R/o. 2/21, Laxmi Niwas Chawl, )Laxminarayan Mandir Marg, )Mohili Village, Sakinaka, )Mumbai 400 072. )
)13. Ajit Chandrakant Rane. )Age: 34 years. )R/o. B/501, Shivam Apartment, )Near Chandivali Studio, Sakinaka, )Mumbai 400 072. )
)14. Prakash @ Pappu Hirji Sawla. ) Discharged.
)15. Suresh Raghunath Patil. )Age: 30 years. )R/o. 714/1, Dagdi Chawl, Room No. 24, )1st floor, Bapurao Jagtap Road, )Byculla (W), Mumbai 400 011. )
)16. Subhash @ Subhashchandra )Avadhnarayan Upadhyay. ) Discharged.
)17. Pankaj Kothari. ) Discharged.
)18. Mohammed Saif Mohiddin Faruqui )alias Bobby. ) Discharged.
)19. Badrealam Badruddin Faruqui. ) Discharged.
)20. Sunil Sadashiv Ghate. )Age: 52 years. )R/o. 714/F, Dagdi Chawl, Room No. 20 & 21, )1st floor, Bapurao Jagtap Marg, )Byculla (W), Mumbai 400 011. )
)
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 4
21. Ganesh Krishna Salvi. )Age: 42 years. )R/o. Patel Chawl, Room no. 7, )Subhash Nagar, Asalpha Village, )Ghatkopar, Mumbai 400 084. )... Accused. Mr. Raja Thakare, learned Special P.P. for the StateComplainant.
Mr. Sudeep Pasbola, learned advocate for Accused nos. 1 to 3 and 7,11,14 & 16.
Mr. Nitin Sejpal, learned advocate for Accused nos. 4, 5 and 10.
Mr. Girish Kulkarni, learned advocate for Accused no.6.
Mr. Avinash Rasal, learned advocate for Accused nos. 8,12,13, & 16.
Mr. H.E. Moomen, learned advocate for Accused no.9.
CORAM: HIS HONOUR THE SPECIAL JUDGE SHRI P.K. CHAVAN.
DATED: 31ST AUGUST, 2012.
JUDGMENT (DELIVERED ON 31ST AUGUST, 2012)
1. A sitting Corporator namely Kamlakar Jamsandekar was
shot dead in a broad day light at his home by some unidentified persons
who were hired by the henchmen of Arun Gawali, who was then a
sitting MLA of 'Akhil Bhartiya Sena', a kingpin of an organized crime
syndicate.
2. The prosecution case, in short, as emerged from the record
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 5
filed by DCB,CID, Unit III can be stated as follows:
3. The accused, hereinabove stand charged by DCB,CID,
Mumbai alleging that the accused nos. 1, 9, 10, 12, 13, 15 and 20 were
members of an organized crime syndicated headed by A1 Arun Gawali
who is a MLA of his party viz. Akhil Bhartiya Sena. Accused nos. 1 to 7
and accused nos. 10, 12 and 13 hatched a conspiracy to kill the
deceased Kamlakar Jamsandekar, a sitting Corporator of a political
party known as 'Shivsena'. As such, the deceased Kamlakar
Jamsandekar was shot dead on 2nd March 2007 by A2 Vijaykumar Giri
with a country made handgun when the deceased was at his home. It
is also the case of prosecution that accused nos. 2 to 4 committed the
offence at the behest of organized crime syndicate headed by A1 Arun
Gawali, who, by accepting Rs.30 lakhs from accused nos. 6 and 7
through A12 Pratap and A13 Rane accepted a 'supari' (a contract to
kill) to eliminate Kamlakar Jamsandekar due to political rivalry. It is
alleged that in the said meeting,A1 Arun Gawali alleged to have
assured A6 Sahebrao Bhintade and A7 Sadashiv Surve by saying not to
worry and the work of Jamsandekar will be done.
4. It is the case of prosecution that deceased Kamlakar
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 6
Jamsandekar was contesting an election of Corporator which was held
on 1.2.2007. One of the contestant was A13 Ajit Rane, a nominee of
Akhil Bhartiya Sena. Jamsandekar was declared elected in the said
election. In this background, on 4.2.2007, A12 Pratap Godse, A13 Ajit
Rane, A21 Ganesh Salvi and Pravin Marathe started discussing about
the reason as to why A13 Ajit Rane could not secure expected number
of votes. They believed that some mischief had been played in the
election i.e. in the electronic voting machine. A13 Ajit Rane suggested
that Kamlakar Jamsandekar should, therefore, be killed. A12 Pratap
Godse also alleged to have stated that he was also willing to participate
in the killing of Jamsandekar.
5. Deceased Kamlakar Jamsandekar was residing at Rumani
Manzil, Chawl No. 1, Room No. 7, Asalfa Village, Mohili Pipe Line,
Ghatkopar, Mumbai 400 084, along with his family. He was residing
with his wife, daughter, son and niece Ms. Manali Keshav Hire, the
complainant.
6. On the fateful day of 2nd March, 2007, at about 16.45 hours,
complainant (P.W. 7) Manali Keshav Hire was washing utensils in the
kitchen. Kamlakar was watching T.V. in the adjacent room. The wife of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 7
deceased Kamlakar viz. Komal (P.W. 1) had already left the house at
about 4.00 p.m. for 'Samta Vidya Mandir' where she was invited to greet
the students appearing for examination. Complainant's cousin Saili was
packing her school bag near her father Kamlakar. At that time, the
complainant heard a big fire cracker like sound from the adjacent room
and when she immediately turned back, she noticed two unknown
persons fleeing away from the said room. She rushed towards her uncle
and found him lying in the chair with blood oozing from the left side of
his head. P.W. 7 Manali Hire came out of the house by screaming
“Kakana Wachwa Ho”, which means 'save my uncle'. She also noticed
the assailants running away towards left side of their house. She
realized that those two unknown persons had fired a shot at her uncle
by their fire arm and fled away. Some one contacted the police and
they arrived at the scene.
7. The police arrived on the spot immediately. They removed
Kamlakar to Rajawadi hospital where he was declared dead before
admission by the doctor.
8. A further investigation revealed that A7 Sadashiv Surve and
deceased Kamlakar Jamsandekar were on cross terms over some land
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 8
property. He, therefore, hatched a conspiracy with A6 Sahebrao
Bhintade who used to be the political 'guru' of deceased Kamlakar
Jamsandekar and who later on turned to be his enemy.
9. It is alleged that A6 Sahabrao Bhintade and A7 Sadashiv
Dhondu Surve alias Bala Surve approached A12 Pratap Tukaram Godse
and A13 Ajit Rane who are the members of organized crime syndicate
of A1 Arun Gawali in order to give a contract to eliminate Kamlakar
Jamsandekar. A12 Pratap Tukaram Godse assured A6 and A7 about a
meeting to be fixed with A1 Arun Gawali. Accordingly, A12 Pratap
Tukaram Godse had arranged a meeting of A6 Sahabrao Bhintade with
A1 Arun Gawali. A12 Pratap Tukaram Godse and A13 Ajit Rane then
took A6 Sahebrao Bhintade and A7 Sadashiv Dhondu Surve alias
Bala Surve to the Office of Akhil Bhartiya Sena, a political party of
which A1 Arun Gawali was a sitting MLA at the relevant time on the
ground floor of Geetai Cooperative Housing Society Limited, Dagdi
Chawl, Byculla, Mumbai. They met A9 Sandip alias Sandy Baliram
Gangan who is also a henchman of A1 Arun Gawali. They informed
A9 Sandip alias Sandy Baliram Gangan that they had brought the
contract money upon which A9 Sandip alias Sandy called A15 Suresh
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 9
Patil on his mobile phone from the mobile phone of A12 Pratap
Tukaram Godse. A15 Suresh Patil and A9 Sandip alias Sandy Baliram
Gangan took A6 Sahebrao Bhintade, A7 Sadashiv Dhondu Surve alias
Bala Surve, A12 Pratap Tukaram Godse and A13 Ajit Rane to the office
of A1 Arun Gawali on second floor. A6 Sahebrao Bhintade, A7
Sadashiv Dhondu Surve alias Bala Surve handed over Rs.30 lakhs to A1
Arun Gawali as a contract money to kill Kamalakar Jamsandekar. A1
Arun Gawali instructed A12 Pratap Godse and A13 Ajit Rane to hire
fresh unknown killers in order to avoid his gangs involvement. A12
Pratap Godse, therefore, asked one Pradip Shinde whether he would
eliminate Jamsandekar. However, Pradip Shinde refused.
10. A12 Pratap Godse then asked A10 Shrikrishna @ Babu
Tukaram Gurav to find out new shooters to kill Kamlakar Jamsandekar,
upon which, A10 Shrikrishna @ Babu Tukaram Gurav contacted A2
Vijaykumar Giri and A4 Narendra alias Kandi alias Guddu Lalmani Giri
and told them about the contract. A2 Vijaykumar Giri and A4
Narendra alias Kandi alias Guddu Lalmani Giri accepted the contract
put forth by A10 Shrikrishna @ Babu Tukaram Gurav at the behest of
A12 Pratap Godse. A10 Shrikrishna @ Babu Tukaram Gurav then
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 10
took them to A12 Pratap Godse and A13 Ajit Rane. They offered them
Rs.2.5 lakhs for the murder. A1 Arun Gawali asked A15 Suresh Patil to
pay Rs.60,000/ to A12 Pratap Godse for paying the same to the hired
killers. Accordingly, A15 Suresh Patil gave Rs.60,000/ to A9 Sandip
alias Sandy to hand it over to A12 Pratap Godse and A13 Ajit Rane.
A12 Pratap Godse and A13 Ajit Rane paid Rs.20,000/ as an advance
to A2 Vijaykumar Giri and A4 Narendra alias Kandi Giri. A12 Pratap
Godse and A13 Ajit Rane had also provided them with a .12 bore
country made handgun which they had already purchased from A8
Surendra Panchal who has a licence of repairing arms and ammunitions.
11. According to the prosecution, A12 Pratap Godse asked P.W.
4 Abdul Rehaman Asifali Khan to point out Kamlakar Jamsandekar to
the hired killers. P.W. 4 Abdul Rehaman alias Asifali Khan was working
as a servant of A12 Pratap Godse. Accordingly, P.W. 4 Abdul Rehaman
pointed out Kamlakar Jamsandekar to A2 Vijaykumar Giri, A3 Jaiswar,
A4 Narendra alias Kandi Giri and A5 Anil Giri. The killers thereafter
started keeping a watch on the house of Kamlakar Jamsandekar for
about 15 days, but could not get a chance to eliminate him. It is alleged
that at the relevant time, A12 Pratap Godse used to get irritated as the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 11
work of elimination of Kamlakar Jamsandekar could not be materialized
and, therefore, he used to abuse A2 Vijaykumar Giri, A3 Jaiswar, A4
Narendra alias Kandi Giri and A5 Anil Giri and was insisting for
completing the “game”, otherwise he had also engaged another group
for the said work.
12. Ultimately, on 2nd March 2007, at about 15.30 hours or so,
A12 Pratap Godse informed A2 Vijaykumar Giri on the mobile phone
that Kamlakar Jamsandekar was sitting alone in his house and the door
is opened and that they should kill him immediately. Thus, A2
Vijaykumar Giri, A4 Narendra alias Kandi Giri barged into the house of
deceased Kamlakar Jamsandekar. A2 Vijaykumar Giri fired at deceased
Kamlakar Jamsandekar from his country made handgun from point
blank range killing him instantaneously. They immediately fled away.
Some of the balance amount of contract money of Rs.30,000/ was paid
to the killers by A12 Pratap Godse when he came out on bail.
13. An FIR Exh. 177 was lodged by P.W. 7 Manali Hire, the
complainant and eye witness of the incident with Sakinaka police
station, pursuant to which C.R. No. 82/2007 came to be registered
against unidentified accused persons under Sections 120B, 452, 302,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 12
34 of IPC r/w 3, 25 and 27 of Arms Act and u/s. 37(1) and 135 of
Bombay Police Act. During investigation, the Sakinaka police station
officers visited the scene of occurrence and drew a panchanama Exh.
165. The photographs of the scene of occurrence were snapped which
are proved at Exh. 163 (colly), and have been admitted by the defence
under Sec. 294 of Cr.P.C. P.W. 21 P.I. Kasar conducted the preliminary
investigation in this crime. The investigating agency found a scarbutt
(Art. 1) lying near the deceased, which was found to be detached from
the weapon alleged to have been used by the assailants. The I.O.
arrested A12 Pratap Godse, A13 Ajit Rane along with some other
accused viz. A14 Prakash Sawla, A16 Subhash Upadhyay, A17 Pankaj,
A18 Mohd. Faruqui and A19 Badre Alam Faruqui who were discharged
subsequently by this Court. The postmortem report Exh. 281 and the
ballistic report Exh. 196 are filed on record which reveal that a 'wad' of
the fired ammunitions was found embedded in the brain matter of the
deceased as well as the 'pellets' were recovered from the head of the
deceased (Art. 7 colly.), indicating that the weapon used was a 12 bore
country made handgun Exh. 196. PSI Nalawade recorded the statement
of P.W. 7 Manali Hire at the hospital. PSI Kirtawde P.W. 32 drew the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 13
inquest panchanama Exh. 162. He collected the blood and bullets
retrieved from the body of the deceased as stated above.
14. During the course of investigation, a test identification
parade was conducted on 31.5.2007 and 1.6.2007 Exhs. 470 and 471
(colly.). It was attended by two witnesses viz. Ms. Nita Shah and
Mayuresh Tandel, which was conducted by Special Executive Officer
Mr.Dattaram Kambli. On completion of investigation, a chargesheet
was filed by Sakinaka police station against seven accused in the Court
of Metropolitan Magistrate, Mumbai, which was ultimately committed
to the Court of Sessions bearing Sessions Case No. 529/2007.
15. Meanwhile, secret information was received by P.I. Sandbhor
pursuant to which a raid was conducted at Hotel Govindnam Lachiram
at Kalbadevi wherein A2 Vijaykumar Giri, A3 Ashokkumar Jaiswar, A4
Narendra alias Kandi alias Guddu Giri and A5 Anil Giri came to be
arrested on 26.4.2008. An information was received that some persons
are likely to commit dacoity in a jewellery shop at Kalbadevi.
Accordingly, PI Sandbhor along with P.W. 27 API Ajay Joshi laid a trap
near Hotel Govindnam Lachiram at about 3.15 p.m. They noticed three
persons near the hotel. After some time, two more persons joined them
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 14
who came on a motorbike on the opposite of the road. All the five
persons entered Hotel Govindnam Lachiram.
16. Head Constable Ramesh Shankar Bhokare P.W. 31 followed
them inside the hotel. P.W. 31 Bhokare informed that they were
planning to enter into a jewellery shop known as 'Prakash Gold Palace.
They came out of the hotel, but suspecting the movements of the police
personnel tried to scatter, however, they were overpowered and nabbed
on the spot. During their personal search, in the presence of the panch
witnesses, A2 Vijaykumar Giri was found in possession of a country
made handgun without a scar butt along with one live cartridge with
inscription KF 12 besides a Nokia Mobile phone, some currency, driving
licence. A3 Ashokkumar Jaiswar was found in possession of a 12 inch
knife and some currency. A4 Narendra alias Kandi Giri was also found
in possession of 12 a inch knife and some currency. A5 Anil Giri was
found in possession of an 11 inch knife, one mobile and some currency
as well as a small pouch containing chilly powder and some string
('Sutal'). They all were arrested under a panchanama Exh. 311. The
motorbike bearing registration No. MH03AL 8044 was seized. The
officers of CIU i.e. Criminal Intelligence Unit effected arrest of A2
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 15
Vijaykumar Giri, A3 Ashokkumar Jaiswar, A4 Narendra Giri and A5
Anil Giri and brought them to their office along with seized weapons
where statements of P.W. 31 HC Bhokare came to be recorded by P.W. 27
API Ajay Joshi o n the basis of which, offence vide C.R. No. 118/2008
was registered at L.T. Marg police station under Sections 399, 402 of
IPC, Sections 3, 25 and 27 of Arms Act r/w 22 and 51 of Bombay Police
Act. Simultaneously, the investigation of the case was transferred and
taken over by DCB,CID, CIU vide their C.R. No. 66/2008.
17. P.W. 33 P.I. Divakar Shelke on 28.7.2008, was informed by PI
Sandbhor about the arrest of A2 Vijaykumar Giri, A3 Ashokkumar
Jaiswar, A4 Narendra Giri and A5 Anil Giri by DCB,CID, CIU who were
also found to be involved in C.R. No. 82/2007 registered with Sakinaka
police station.
18. The DCB,CID had also arrested A11 Dinesh alias Dinya
Narkar in the said crime along with A10 Shrikrishna Gurav. A10
Shrikrishna Gurav and A11 Dinesh alias Dinya Narkar were also
arraigned as accused in committing the murder of Kamlakar
Jamsandekar vide DCB,CID C.R. No. 69/2008.
19. It revealed during interrogation of A2 Vijaykumar Giri, A3
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 16
Ashokkumar Jaiswar, A4 Narendra Giri and A5 Anil Giri that the
weapon i.e. the country made handgun seized from them had been used
for committing the murder of Kamlakar Jamsandekar and that the scar
butt recovered by Sakinaka police station on the spot is in fact detached
from the said handgun at the time of committing the murder.
20. The Joint Commissioner of Police, Crimes was apprised with
the facts of the aforesaid interrogation in DCB,CID C.R. No. 52/2008
and C.R. No. 66/2008. The Joint Commissioner ordered Sr. P.I. DCB,
CID to take over further investigation of C.R. No. 82/2007 of Sakinaka
police station. Accordingly, case papers were taken over from Sakinaka
police station for further investigation vide DCB,CID C.R. No. 69/2008
u/s. 120B, 452, 302, 34 of IPC r/w 3, 25 and 27 of Arms Act r/w 37(1)
and 135 of Bombay Police Act.
21. It is the case of the prosecution that during further
investigation, A2 Vijaykumar Harihar Giri, A3 Ashokkumar Shivakant
Jaiswar, A4 Narendra alias Kandi alias Guddu Lalmani Giri, A5 Anil
Sherbahadur Giri, A7 Sadashiv Dhondu Surve alias Bala Surve and A6
Sahebrao Kaluram Bhintade were arrested in DCB, CID C.R. No.
69/2008 on 29.4.2008. A8 Surendra Vasudeo Panchal was arrested on
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 17
5.5.2008 and A9 Sandip alias Sandy Baliram Gangan was arrested on
15.5.2008. A10 Shrikrishna @ Babu Tukaram Gurav and A11 Dinesh
@ Dinya Laxman Narkar were arrested in DCB, CID C.R. No. 52/2008
and were taken in custody from jail as per the orders of this Court and
were arrested on 16th May 2008 in DCB,CID C.R. No. 69/2008.
22. On 19.5.2008, P.W. 33 Divakar Shelke demanded articles
seized from A2 Vijaykumar Harihar Giri, A3 Ashokkumar Shivakant
Jaiswar, A4 Narendra alias Kandi alias Guddu Lalmani Giri, A5 Anil
Sherbahadur Giri from officers of DCB,CID vide Exh. 420.
23. P.W. 33 Divakar Shelke prepared a proposal for obtaining
prior approval under Section 23(1)(a) of the MCOC Act and on
20.5.2008, the Joint Commissioner of Police Mr. Rakesh Maria granted
prior approval to record the offence under the MCOC ACt. Prior
approval is at Exh. 421. After grant of prior approval, investigation was
handed over to P.W. 37 ACP Durafe. He immediately arrested A1 Arun
Gawali, A6 Sahebrao Kaluram Bhintade and A7 Sadashiv Dhondu
Surve alias Bala Surve under the provisions of MCOC Act. During
investigation, A3 Ashokkumar Jaiswar, A4Narendra Giri, A5 Anil Giri,
A9 Sandip Gangan, A10 Shrikrishna Gurav and A11 Dinesh Narkar
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 18
expressed their desire to make confessions and accordingly, P.W. 37 ACP
Durafe reported the said fact to the Joint Commissioner of Police, Mr.
Rakesh Maria to depute the officer of the rank of Deputy Commissioner
of Police to record the confessions. Accordingly, confessional statements
of A3 Ashokkumar Jaiswar, A4Narendra Giri, A5 Anil Giri, A9
Sandip Gangan, A10 Shrikrishna alias Babu, A11 Dinesh Narkar and
A15 Suresh Patil came to be recorded by P.W. 17 DCP Vinaykumar
Chaube, P.W. 15 DCP Rajendra Dabhade, P.W. 23 DCB Vijay Singh N.
Jadhav, P.W. 29 DCP Brijesh Singh and P.W. 18 DCP Dilip Sawant
respectively. The copies of confessional statements were collected by
ACP Durafe P.W. 37. He also recorded statements of certain witnesses.
The seized muddemal articles were sent to the Forensic Science
Laboratory, Kalina for analysis.
24. P.W. 37 ACP Durafe had also arranged a T.I. parade with the
help of P.W. 33 Divakar Shelke and Special Executive Officer Mr.
Dattaram Kambli on 20.6.2008 at Mumbai Central Prison. The
memorandum to that effect is at Exh. 301. P.W. 7 Manali Hire and P.W.
12 Motilal Chaudhari were the two identifying witnesses.
25. P.W. 37 ACP Durafe had also collected Call Detail Reports of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 19
mobile phones of some of the accused and the printouts were obtained
from the concerned mobile companies. P.W. 30 Charls Daniels is the
Nodal Officer of Vodafone who produced the original customer's
application form of Mobile No. 9819251750 in the name A10
Shrikrishna Gurav (Exh. 408 colly.).
26. P.W. 34 Prashant Vasantrao Gawde, a witness from Tata Tele
services who produced the call detail record (CDR) Exh. 426 and 427
(colly.), reflecting communication between A2 Vijaykumar Harihar Giri,
A5 Anil Giri, A8 Surendra Vasudeo Panchal, A10 Shrikrishna Gurav,
A12 Pratap Godse and A13 Ajit Rane as well as their call tower
locations.
27. P.W. 35 Shekhar Vinayak Palande is the Nodal Officer of Tata
Services who proved the contents of CDR Exh. 436 and other aspects,
Exhs. 432, 433 and 434.
28. Thereafter P.W. 37 ACP Durafe submitted a proposal for
obtaining sanction and accordingly, the then Commissioner of Police Mr.
Hasan Gafoor P.W. 36 granted sanction on 25.7.2008 u/s. 23(2) of
MCOC Act to prosecute the accused Exh. 439. After the investigation
and as a result of investigation, P.W. 37 ACP Durafe laid a chargesheet
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 20
in this Court. In fact, the original chargesheet is MCOC Special Case
No. 07 of 2008 and thereafter, supplementary chargesheets bearing No.
16/08 and 03/2009 came to be filed.
29. In view of the directions given by the Hon'ble Division Bench
of Bombay High Court, Mr. Bilal Nazki and Mr. A.R. Joshi, JJ in Criminal
Writ Petition No. 2361/2008 on 23rd March, 2009, Sessions Case No.
529/2007 visavis MCOC Special Cases are tried simultaneously.
30. A1 Arun Gawali, A2 Vijaykumar Harihar Giri, A3
Ashokkumar Shivakant Jaiswar, A4 Narendra alias Kandi alias Guddu
Lalmani Giri and A5 Anil Sherbahadur Giri, A6 Sahabrao Bhintade and
A7 Sadashiv Dhondu Surve alias Bala Surve A8 Surendra Vasudeo
Panchal, A9 Sandip alias Sandy Baliram Gangan, A10 Shrikrishna
Gurav, A11 Dinesh alias Dinya Narkar, A12 Pratap Tukaram Godse and
A13 Ajit Rane, A15 Suresh Patil, A20 Sunil Ghate and A21Ganesh
Salvi appeared before my predecessor Mr. R.G. Avachat on 7th October
2008, who framed a charge below Exh. 133 against them under
Sections 3(1)(i), 3(1)(ii), 3(2) and 3(4) of MCOC Act and u/s. 120B,
452, 302 r/w 34 of IPC r/w Section 3 r/w 25 and 27 of Arms Act under
different heads.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 21
31. The charge was read over and explained to the aforesaid
accused to which each of them pleaded not guilty and claimed a trial.
32. The pleas are recorded at Exh. 134 to 149. The prosecution
has furnished list of witnesses Exh. 150. The list of documents Exh. 151
and list of Articles 152.
33. The defence of all the accused is that of denial of the
commission of offences alleged.
34. The A1 Arun Gawali in his statement under Section 313 of
Cr.P.C. has stated that he has been falsely implicated due to a political
rivalry. He was neither the head of any organized crime syndicate nor
accepted the contract i.e. 'supari' to kill Jamsandekar. He further states
that he is a political leader as well as a MLA and Chief of Akhil Bhartiya
Sena. He contested elections of Lok Sabha and Legislative Council
wherein he secured 92,000 votes. In order to defeat him and his party
and to stall his progress in the political field, he has been falsely
implicated in this case. Cases are filed against him in order to keep him
away from elections. It is, however, surprising that A1 Arun Gawali has
not named any particular party who is said to have implicated him in
this case.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 22
35. A2 Vijaykumar Giri vide application Exh. 504A furnished
photostat copies of applications addressed by him to the Hon'ble the
Chief Justice of the Bombay High Court and the Registrar General dated
17.10.2008 in which he mainly put forth his grievance as to how he was
physically tortured by the police when he was arrested in the midnight
of 24.4.2008 from his house. He alleged that he was kept in the lockup
of DCB,CID, Unit No. III. He had requested to conduct an inquiry in the
said matter.
36. A3 Ashokkumar Jaiswar has filed an application Exh. 505A
along with photostat copy of an application by him stating therein that
he had not made any confessional statement and that he was forced to
file the same. He had been physically tortured to sign some papers or
purported to be his confessional statement.
37. A5 Anil Giri has also filed a photostat copy of his
confessional statement that he did not make any such statement and
that the signature was obtained on a paper which was already written.
He does not know anything about the murder of Kamlakar
Jamsandekar.
38. A6 Sahebrao Bhintade in his application Exh.508A has
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 23
stated that when he was arrested in MCOC Special Case No. 7/2008 by
the Crime Branch, he had stated before the officers namely Mr. Ninad
Sawant, Mr. Dinesh Kadam, Mr. Shelke and Mr. Yogesh Chavan that he
is ready to undergo brain mapping or any other test, but they refused by
saying that they knew about his noninvolvement in the offence, but
due to the pressure from superiors, they arrested him. He has been
falsely implicated in this case by the President of Nationalist Congress
Party of Mumbai namely Mr. Sachin Ahir because he was Vice President
at that time in NCP, but subsequently, he joined Shiv Sena and,
therefore, some leaders of NCP along with Sachin Ahir falsely
implicated him in this case due to political rivalry.
39. A7 Sadashiv Dhondu Surve has stated in his statement
under Section 313 of Cr.P.C. that he and deceased were thick friends.
He was shocked by his murder. However, he continued cordial relations
with his widow and family and also attended his funeral and helped his
wife in byeelections. He had further stated that widow of the deceased
had attended his daughter's marriage. The police and some mischief
mongers in the locality were jealous of his success and, therefore, had
falsely implicated in this case. Those persons polluted the mind of P.W.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 24
1 and P.W. 2 so as to make them believe that he was responsible for the
murder of deceased Kamlakar Jamsandekar. He had further stated that
he had nothing to do with the murder of the deceased to whom he had
already indebted for naming the garden on the plot donated by him in
the name of his late mother.
40. A9 Sandip Baliram Gangan in his application at Exh. 510A
has stated as to how he was physically tortured and subjected to electric
shock and assault by belt by the police officers. He alleged that his
signatures were obtained on some blank and written papers. He has
tremendous fear in his mind due to the terror of the police. He further
stated that he was warned not to complain about the illtreatement to
the court. Before producing before the Magistrate, he was subjected to
electric current and physical assault. He was warned to answer in
affirmative, but should not say anything about the police.
41. A12 Pratap Godse in his application at Exh. 513A & B has
stated that the officers of Crime Branch, Unit III did not allow him to
express his desire to address the court and to tell the fact of his
innocence. He was arrested by the Crime Branch officer without giving
any idea and had rearrested him though he was released on bail in C.R.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 25
No. 82/2007. In his additional statement at Exh. 513B, A12 Godse
had stated that A9 Sandip Gangan has stated in his confessional
statement that he read in the newspaper after twenty days of
Mahanagar Telephone Nigam Ltd. elections, about the news of murder
of Kamlakar Jamsandekar. In fact, the murder was committed on 2nd
March, 2007, then how could A9 Sandip Gangan read the newspaper
about the said murder which in fact occurred before one and half
month. This shows that his confession has been falsely recorded only to
implicate this accused in Crime No.69/2008 by the Crime Branch
officer. He claims to be totally innocent and nothing to do with the
case.
42. A13 Ajit Rane states that he had contested election for
Corporator on behalf of Akhil Bhartiya Sena of A1 Arun Gawali and,
therefore, he has been falsely implicated in this case.
43. A15 Suresh Patil in his statement at Exh. 515A stated that
he had never absconded, but had been to Krishna Hospital and Research
Centre at Karad where his aunt and nephew were admitted due to
accidental injuries on 13th June 2008. In support of the same, he has
filed a certificate issued by the Department of Neurology of Krishna
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 26
Hospital, Karad and a certificate issued by the Assistant Police Inspector,
Kasegaon police station indicating the accident in which the aunt and
nephew of this accused were injured along with the panchanama. He
has further stated that he is not at all concerned with the present crime
nor he is a member of Akhil Bhartiya Sena of A1 Arun Gawali or the
organized crime syndicate. He had not given any confession voluntarily
though he admits that he is a resident of Dagdi Chawl. He has further
stated that during police custody, he was subjected to electric shock to
his ears and private part by the police who directed him to simply sign
the papers which would be placed before him. Due to the fear of
tremendous physical torture meted out to him, he put signatures on
some blank papers. He was produced in veil before the Sr. Officer to
whom he tried to narrate his plight, but it was not heard. When he was
produced in the Court and there were no police officers, he informed
the court about the fact and that his unwillingness to give any
confessional statement. He is innocent and, therefore, prayed for his
acquittal.
44. It is urged by the defence that prosecution has failed to
establish any motive behind the murder of Kamlakar Jamsandekar.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 27
Secondly, there are two contradictory theories put forth by Investigating
Officer of Sakinaka police station who filed the earlier chargesheet
bearing in Sessions case bearing No. 529/2007 and another theory by
the Crime Branch which are inconsistent.
45. No defence evidence has been adduced on behalf of any of
the accused.
46. The learned SPP Mr. Raja Thakare has submitted his
memorandum of arguments.
47. The learned counsel Mr. Pasbola for Accused nos. 1, 2, 3, 7,
9, 10, 11, 15 and 20 has also submitted his memorandum of arguments
which is at Exh. 533.
48. The learned counsel Mr. Rasal for Accused nos. 8, 12, 13
and 21 has submitted the notes of arguments at Exh. 534.
49. The learned counsel Mr. Kulkarni argued orally on behalf of
Accused no. 6. While learned counsel Mr. Sejpal argued on behalf of
Accused nos. 4, 5 and 10.
50. In the light of rival submissions at bar, following points arise
for my determination. I record my findings with reasons therefor as
stated hereinbelow:
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 28
P O I N T S F I N D I N G S
1. Whether it is proved by the prosecution that deceased Kamlakar Jamsandekar died a homicidal death on 2.3.2007?
In affirmative
2. Whether it is proved by the prosecution that such death of deceased Kamlakar Jamsandekar had been caused by or in consequence of the act of A2 Vijay Giri, A3 Ashokkumar Jaiswar, A4 Narendra Giri and A5 Anil Giri, in furtherance of their common intention pursuant to a criminal conspiracy hatched to that effect by A6 Sahebrao Bhintande, A7 Sadashiv @ Bala Surve, A10 Shrikrishna @ Babu Gurav, A12 Pratap Godse, A13 Ajit Rane and A15 Suresh Patil?
In affirmative
3. Whether it is proved by the prosecution that A2 Vijay Giri, A3 Ashokkumar Jaiswar & A4 Narendra Giri in furtherance of their common intention trespassed into the house of the deceased Kamlakar Jamsandekar situated at Rumani Manzil, Chawl No. 1, Room No. 7, Asalfa Village, Mohili Pipe Line, Ghatkopar, Mumbai 400 084?
In affirmative
4. Whether it is proved by the prosecution that A2 Vijay Giri used a country made firearm i.e.
In affirmative
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 29
handgun to commit murder of deceased Kamlakar in contravention of the provisions of Arms Act?
5. Whether it is proved by the prosecution that A1 Arun Gawali, A6 Sahebrao Bhintade, A7 Sadashiv @ Bala Surve,A9 Sandip @ Sandy Gangan, A10 Shrikrishna @ Babu Gurav, A12 Pratap Godse, A13 Ajit Rane and A15 Suresh Patil, being the members of organized crime syndicate, abetted the murder of Kamlakar Jamsandekar ?
In affirmative
6. Whether it is proved by the prosecution that A1 Arun Gawali, A6 Sahebrao Bhintade, A7 Sadashiv @ Bala Surve,A9 Sandip @ Sandy Gangan, A10 Shrikrishna @ Babu Gurav, A12 Pratap Godse, A13 Ajit Rane and A15 Suresh Patil, being the members of organized crime syndicate, conspired and/or to commit the organized crime to wit to commit the murder of Kamlakar Jamsandekar for gaining pecuniary benefit or undue economic advantage?
In affirmative
7. Whether it is proved that A1 Gawali, A9 Sandip @ Sandy Gangan, A10 Shrikrishna @ Babu Gurav, A12 Pratap Godse, A13 Ajit Rane, A15 Suresh Patil and A20 Sunil Ghate being the members of organized crime
In affirmative
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 30
syndicate headed by A1 Arun Gawali indulged in criminal unlawful activities from the year 20042008 in an organized manner to gain undue economic advantage or monetary benefits by extorting builders, cable operator after extending threats and A20 Sunil Ghate used to look after the affairs of the organized crime syndicate during the detention of A1 Arun Gawali in jail?
8. Whether it is proved by the prosecution that A8 Surendra Panchal, A10 Shrikrishna Gurav, A11 Dinesh Narkar and A12 Pratap Godse have committed an offence in contravention of the provisions of the Arms Act?
In negative
9. Whether it is proved by the prosecution that A8 Surendra, A11 Dinesh and A21 Ganesh Salvi are the members of an organized crime syndicate and that they have committed any offence in view of Section 3(1)(i), 3(2) and 3(4) of MCOC Act?
In negative.
8. What offences have been proved against the accused?
As above
9. what order? As per final order.
R E A S O N S
51. POINT NO.1: The evidence of P.W. 21 Motiram Nivrutti
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 31
Kasar Exh.272 who was attached to Sakinaka police station as a police
inspector, received a message at about 4.58 p.m. that Municipal
Corporator Kamlakar Jamsandekar of Shiv Sena Party was shot dead at
his residence. The message was passed to him by P.W. 32 P.I. Kirtawde
and Sr. Inspector Khandagale, pursuant to which they rushed to the
scene of occurrence in different vehicles. On their way, the witness took
a photographer from a photo studio. When he reached on the spot, he
noticed deceased Kamlakar Jamsandekar lying in a plastic chair with his
back towards the entrance door and head leaned towards left. He also
noticed a bleeding injury on the left temporal region and a pool of
blood on the floor. Without disturbing the situation, he got the
photographs snapped through the photographer and thereafter,
immediately rushed Kamlakar Jamsandekar to the hospital in a mobile
van no.1.
52. P.W. 22 Dr. Eknathrao Bansude Exh. 279, was attached to
Grant Medical College, J.J. Hospital at the relevant time in the
Department of Forensic Medicines. His evidence reveals that he
conducted autopsy on the corpse of deceased Kamlakar Jamsandekar on
2.3.2007, along with Dr. A.S. Gawde, Medical Officer, Police Hospital,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 32
Mumbai. Police constable bearing No. 28860 and Mortuary attendant
on duty identified the dead body. The body was received at 8.45 p.m.
and postmortem commenced at 9.30 p.m. He testified that it was a
firearm injury. Rigor mortis was present in lower limb. No signs of
decomposition seen, postmortem lividity was present but not fixed.
There was a evidence of oozing of blood from both ears. He also
noticed the following surface injuries:
Firearm wound of entry of size 3 X 2.5cm present on left side
temporal region in front of left tragus of ear, 4 cm lateral to lateral
angel of left eye and 8cm upward from lateral angle of the mouth.
Blackish discoloration around the wound, within 3cms from the
margin inverted (Reddish).
I) Internal injuries :
1. Contusion of size 6 cm on frontal region round shaped red colour
under the scalp.
2. Contusion of size 16 X 10 cm on left temporal parieta ociptal
region red colour,
3. Evidence of haematoma under the temporalis muscle seen.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 33
II) Fracture of skulls:
a) A fissured fracture of 25 cm going from left temporal bone to left
middle cranial fossa to right middle cranial fossa to right temporal bone.
b) Communicated fracture of base of skull.
c) A fissured fracture 8 cm long going from left parietal protuberance
to left middle cranial fossa.
4) A fissured fracture on right parietal protuberance going to right
middle cranial fossa.
5) Two fissured fractures present on frontal bone 6 cm each.
Brain :
Multiple pellet were found in right temporal lobe of brain
abundantly.
Few pellets were found in occipital lobe of brain.
Few pellets were found in frontal lobe of brain.
Few pellets were found underneath the mouth cavity and nasal
cavity.
A sand clock shaped wad of size 4 cm X 2 cm found in brain
matter.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 34
Gray matter and white matter of brain were crushed due to
traversing of pellets in brain.
Multiple hemorrhages seen at places along the tract of pellets in
the brain.
80cc blood was seen in the cavity.
Viscera was preserved for chemical analysis. Blood preserved for
CA and grouping. Head wash preserved for CA. Skin peace and wad
and pellets were preserved for Ballistic examination.
53. The medical expert has proved the PM notes which are in
his handwriting and in handwriting of Dr. Gawde which bears their
signatures and it marked Exh. 281. The photographs snapped at the
time of conducting postmortem are at Exh. 282 (colly.). As such, there
is no dispute that deceased Kamlakar Jamsandekar died a homicidal
death on 2.3.2007.
54. The learned counsel Mr. Pasbola has extensively cross
examined this witness on various aspects such as about the injury marks
caused due to firearm. He has confronted the witness with page nos.
716, 721 and 722 of the Mody's 23rd Edition of Medical Jurisprudence.
The witness in his crossexamination admits that he had conducted
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 35
about 2025 postmortem of firearm injuries. Thereafter, he was
mainly questioned about the procedure being followed at the time of
conducting postmortem, preparation of postmortem notes, obtaining
photographs and xrays which are not much relevant in so far as the
cause of death is concerned. Certain questions were asked on the
aspect of tattooing and blackening in case of firearm injuries which
were appropriately answered by the witness by saying that he is aware
of the fact that blackening is caused by smoke and tattooing is caused
by unburnt grains of gun powder. It is nobody's case that the death of
Kamlakar Jamsandekar was either accidental or suicidal and, therefore,
it is needless to go into other aspects which are brought in by the
defence counsel. This can be considered at the time of evaluating the
evidence of ballistic expert. Suffice it to say at this stage that deceased
Kamlakar Jamsandekar died a homicidal death due to a firearm injury.
The point is, therefore, answered in the affirmative.
55. In order to prove the charges against the accused persons,
prosecution has examined as many as 37 witnesses. Before analysing
the evidence adduced by the prosecution, it would be convenient to
have a broad look to the nature of evidence adduced by the prosecution
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 36
to substantiate the guilt. The following chart would make it convenient
to understand the details of witnesses and the nature of their evidence:
PW
No. Name of the
witness
Nature of evidence
1 Komal Jamsandekar P.W.1 Komal Jamsandekar,
Widow of the deceased deoised
regarding motive/role of A6
Sahebrao Bhintade and A7
Sadashiv Bala Surve.2 Nilkantha Bane Secretary of the deceased
Kamalakar Jamsandekar spoke in
tune with P.W. 1 Komal
Jamsandekar.3 Ramesh Balu Patil Pancha Witness to the
Panchanama to the Scene of
Offence (Exh. 165 colly). 4 Abdul Raheman @
Addu
He talks about A12 Pratap
Godse, in presence of A13 Ajit
Rane asking him to show
deceased Kamalakar
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 37
Jamsandekar and his house to
those assailants viz. A4
Narendra Giri and A5 Anil Giri. 5 Pradeep Shinde This witness was offered Rs. Two
Lakhs and a revolver by A12
Pratap Godse for eliminating
Kamalakar Jamsandekar,
however in consultation with
A11 Dinesh Narkar he spun the
offer for want of adequate
consideration 6 Arun Kumar Singh A Cable Operator and a victim of
extortion by members of the
Organized Crime syndicate
headed by A1 Arun Gawali @
Daddy operating from Dagadi
Chawl, Bhyculla. 7 Manali
Chavan/Hire
Complainant and eye witness
who identified the assailants viz.,
A2 Vijay Giri and A4 Narendra
Giri in the TI Parade held by PW
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 38
24 SEO Dattaram Kambli as well
as identified the both in the
Court.8 Narendra Panchal Brother of A8 Surendra Panchal,
who talks about A8 Surendra
Panchal repairing and dealing in
arms.9 Amrut Patil Panch of recovery of the diaries
containing the account details or
Organized Crime syndicate of
Arun Gawali recovered U/Sec.
27 of the Evidence Act at the
instance of A15 Suresh Patil
from the house of PW 10 Ankush
Gharkar. 10 Ankush Gharkar A resident of Dagadi Chawl from
whose house the diaries of the
accounts of Organized Crime
syndicate were recovered at the
instance of A15 Suresh Patil this
witness is declared hostile by the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 39
Prosecution.11 Ramchandra @
Dhaktya Gurav
A relative of A10 Shrikrushna @
Babu Gurav who arrange for the
weapon used in the crime
(Article 5) from A8 Surendra
Panchal at Rajapur at the
instance of A12 Pratap Godse
and identifies A12 Pratap
Godse, A13 Ajit Rane, A8
Surendra Panchal, A10 Babu
Gurav and A11 Dinesh Narkar in
the Court.12 Motilal Chaudhary Owner of Kamla Aahar Gruh at
Asalfa Village, near the vicinity
of deceased Kamalakar
Jamsandekar who identifies A2
Vijay Kumar Giri, A3 Ashok
Kumar Jaiswar, A4 Narendra
Giri and A5 Anil Giri as the
persons who used to come to his
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 40
hotel Kamla Aahar Gruh during
the period of February 2007 till
murder of Kamalakar
Jamsandekar on 2nd March 2007. 13 Shridhar Munj
(Ballistic Expert)
Who proved CA report regarding
weapon used in the commission
of murder as also Scarbutt
(Article 1) to be part of
Handgun (Article 5) The wad
and pellets recovered from the
head of the deceased and
reported about close range firing
from a 12 bore country made
Handgun. 14 Anjali Badade
(Expert)
She has examined and opined
that the Scarbutt (Article 1)
matches and fit with the
Handgun (Article 5).15 Rajendra Dabhade DCP who recorded voluntary
confession statement of Accused
No. 4 Narendra Giri (Exh.214)
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 41
16 PI Sadanand Rasam He had filed the previous two
Chargesheets against Accused
No. 1 Arun Gulab Gawali in the
year 2004 (Exh. 218 & 219)
which are considered as previous
Chargesheets for invocation of
MCOCA to the case.17 Vinoy Kumar
Choubey
DCP who recorded voluntary
confessional statement of A3
Ashok Jaiswar (Exh. 227)18 Dilip Sawant DCP who recorded voluntary
confessional statement of A15
Suresh Patil (Exh. 241)19 Dyaneshwar
Phadtare
DCP who recorded voluntary
confessional statement of
Accused No. 10 Babu Gurab
(Exh. 251) (ADMITTED
BEFORE CMM)20 Yadav Dhum DCP who recorded voluntary
confessional statement of A11
Dinesh Narkar (Exh. 264)21 PI Motiram Kasar The Investigating Officer of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 42
Sakinaka Police Station and
drawn the Panchanama of scene
of offence (Exh. 165) recovering
Scarbutt (Article 1) and obtained
the Photographs (Exh. 163
colly.) of the Scene of Offence
and subsequently, filed the initial
Chargesheet against seven
accused persons.22 Dr. Bansude
(Expert)
The Medical Officer/Doctor who
performed the postmortem on
the dead body of Kamalkar
Jamsandekar and simultaneously,
took the Photographs (Exh. 282
Colly) 23 Vijay Singh Jadhav DCP who recorded voluntary
confessional statement of A5
Anil Giri (Exh. 289) and also
accorded sanction under the
Arms Act (Exh. 297)24 Dattaram Kambli SEO who conducted TI Parade
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 43
(Exh. 301) in which witness PW
7 Manali Hire identified A2 Vijay
Giri and A4 Narendra GIri and
PW 12 Motilal Chaudhary who
identified A2 Vijay Kumar Giri,
A3 Ashok Kumar Jaiswar, A4
Narendra Giri and A5 Anil Giri.25 Vishwanath Hinge A resident of Dagadi Chawl who
used to write the account books
recovered under Panchnama
(Exh. 183) from the house of
PW 10 Ankush Gharkar at the
instance of A15 Suresh Patil.
This witness is declared hostile. 26 Ashish Shukla A Panch witness to the recovery
of Handgun without Scarbutt
(Article 5) and other articles
from the possession of A2 Vijay
Kumar Giri, A3 Ashok Kumar
Jaiswar, A4 Narendra Giri and
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 44
A5 Anil Giri under Panchanama
(Exh. 311).27 API Ajay Joshi The Officer who arrested A2
Vijay Kumar Giri, A3 Ashok
Kumar Jaiswar, A4 Narendra
Giri and A5 Anil Giri and drew
the Panchanama (Exh. 311) in
which Handgun without Scarbutt
(Article 5) was recovered from
the possession of A2 Vijay Giri.28 Mahesh Shah Owner of Hetal Photo Studio
who used to pay ransom amount
to the members of Organized
Crime syndicate headed by A1
Arun Gawali operating from
Dagadi Chawl, Byculla.29 Brijesh Singh DCP who recorded voluntary
confessional statement of A9
Sandip Gangan (Exh. 324)
(ADMITTED BEFORE CMM)30 Charls Daniel The Nodal Officer of Vodafone
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 45
who produced the original
Customer Application Forms of
mobile no. 9819251750 in the
name of A10 Shrikrushna Gurav
(Exh. 408 Colly)31 Ramesh Bhokare The Constable who was the
member of raiding party
arresting A2 Vijay Kumar Giri,
A3 Ashok Kumar Jaiswar, A4
Narendra Giri and A5 Anil Giri,
in which Handgun without
Scarbutt (Article 5) was
recovered from the person of A2
Vijaykumar Giri. He gave his FIR
(Exh. 314) and made Station
Diary Entry (Exh. 316 colly).32 Arun Kirtawade The Officer attached to Sakinaka
Police Station at relevant time
who recorded FIR of PW 7
Manali Hire (Exh. 177)33 PI Diwakar Shelke He is initial Investigating Officer
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 46
of Crime Branch before applying
MCOCA and he sent a proposal
and obtained Prior Approval
(Exh. 421)34 Prashant Gorde Witness from Tata Teleservices
(Maharashtra) Ltd. who
produced Call Detail Records
(CDRs) (Exh. 426 & Exh. 427
colly) which reflect
communication between A2
Ashok Jaiswar, A5 Anil Giri, A8
Surendra Panchal, A10 Babu
Gurav, A12 Pratap Godase and
A13 Ajit Rane as also their Call
Tower Location at relevant time. 35 Shekhar Palande Nodal Officer of Tata Teleservices
who produced Compact Disk
(CD) containing Electronic Data
of Cell Site ID Address of
respective Cell ID Numbers
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 47
(Mobile Tower Locations) of Tata
Teleservices's Customers (Exh.
436) and Original Customer
Application Forms of A12 Pratap
Godase, A3 Ashok Jaiswar and
in respect of mobile no.
9224770420 which was being
used by A8 Surendra Panchal
(Exh. 432, Exh. 433 & Exh. 434
colly) 36 Hasan Gaffur Then Commissioner of Police
Who has accorded Sanctions
U/Sec. 23(2) of MCOCA (Exh.
439, Exh. 440 & Exh. 441) 37 Ashok Duraphe Main Investigating Officer.
56. POINT NO.2: Once the prosecution has established that
deceased Kamlakar Jamsandekar died a homicidal death due to a gun
shot injury, the next important question would be as to who was the
author of the injury and whether his identification has been duly
established by the prosecution visavis the weapon of offence used in
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 48
the crime? The ocular testimony of P.W. 7 Mrs. Manali Mahesh Chavan
Exh. 176 indicates that she got married on 15.5.2010. Before her
marriage, she used to reside with Kamlakar Jamsandekar's family as P.W.
1 Komal Jamsandekar is her maternal aunt.
57. At the relevant time, she was a student of Jhunjhunwala
College, studying in second year of B.Com. On 2nd March, 2007, she
returned from college by 1.30 p.m. Her aunt P.W. 1 Komal, herself and
the daughter of the deceased Saili were at home. At about 4 p.m.,
Komal left the house for Samta Vidya Mandir. Deceased was watching
T.V., sitting in a chair near the door of the room. His daughter Saili was
also present near her father. This witness was in the kitchen when she
suddenly heard a bursting of cracker like sound. She turned around
and noticed two unknown persons present near the chair of Kamlakar
Jamsandekar. She also noticed that Kamlakar's neck was leaned on one
side and blood was oozing from above the left ear. She rushed to her
uncle by shouting “Kakana Wachva, Wachva”. Thereafter, she saw those
unknown persons running away towards left side of the house. On
hearing her shouts, the neighbours gathered. Someone from them
informed the police who arrived on the spot and took Kamlakar
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 49
Jamsandekar to Rajawadi hospital. The police recorded the statement
of P.W. 7 Manali. P.W. 7 Manali realized that her uncle had passed away
on the spot itself. She further testified that one of the two unknown
persons was of the height of 5.2” with a round face, straight nose, Savla
complexion and lanky. According to the witness, he must have been in
the age group of 25 years. She described the other person of the same
complexion, medium built and height about 5.4”, within the age group
of 2530 years. The first information report came to be lodged by P.W. 7
Manali which is proved at Exh. 177. Her statement was also recorded
at Rajawadi hospital, by the police officer of Sakinaka police station.
58. Her evidence further indicates that on 20th June, 2008, she
was summoned to the Office of Crime Branch, Unit III where P.W. 33 API
Shelke of DCB,CID, Unit III was present. The Special Executive
Magistrate P.W. 24 Mr. Dattaram Kambli was also present over there.
Mr. Shelke introduced P.W. 7 Manali to P.W. 24. Two more persons were
present who were supposed to act as panch witnesses. From the office
of DCB, CID, all of them went to Arthur Road Jail. P.W. 7 Manali was
asked to remain in a room along with P.W. 12 Motilal Chaudhari. They
were informed that somebody would come to fetch them one by one.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 50
After some time, one of the panch came to call her. He took her to
another room meant for holding T.I. parade. There were 14 persons
standing in a row. P.W. 24 Kambli called upon P.W. 7 Manali to identify
the suspect from amongst those persons pursuant to which, P.W. 7
testified that she had identified a person who had fired at her uncle
Kamlakar Jamsandekar, who was armed with a firearm. She identified
by touching him. The said person, on being asked, stated his name as
Vijay Giri A2. Thereafter, she left the room and was kept in some other
room. After some time, the same panch again called her in the T.I.
parade room. There was a row of 14 persons. On being asked to
identify the suspect by P.W. 24 Kambli, she identified the one who was in
the company of the earlier accused and to whom she had noticed
running away with the first one. The said accused gave his name as
Narendra Giri. P.W. 7 Manali has also during the course of her evidence
rightly identified the said two accused in the court. This is what is the
oral evidence of P.W. 7 Manali, the only eye witness of the incident.
59. This witness has been extensively crossexamined by Mr.
Pasbola, the learned counsel appearing for Accused nos. 1 to 3 and
7,11,14 & 16. It is pertinent to note that the defence has not disputed
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 51
the presence of P.W. 7 Manali on the spot, at the time of the incident.
The defence has also not disputed the death of the deceased Kamlakar
due to firearm injury. It reveals from her crossexamination that large
number of persons, relatives and neighbours from the ward gathered
over there and also in the hospital who were talking about the incident.
The witness volunteered that while the last journey of her uncle
commenced, the people were whispering that it might be the work of
uncle Bhintande and Surve, referring to A6 and A7. She admits that
for the first time, she has deposed about this fact in the court.
According to P.W. 7 Manali, as she was mentally disturbed due to the
incident, she could not speak about it to anyone else. It was asked to
her by the defence counsel as to whether she can name the persons who
were whispering about A6 Bhintade and A7 Surve to which she
expressed her inability. It is not the suggestion of the defence that none
in the crowd were whispering about A6 Bhintade and A7 Surve.
Further crossexamination mainly pertains to the minute details about
carrying Jamsandekar to the hospital by the police as well as regarding
her statement etc. She testified that after some days, she realized that
she missed to state in her statement, certain matters to the police, but
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 52
she could not brief relatives about the same. The crossexamination
further reveals that at the time of incident, Saili, the daughter of the
deceased was present in the house along with her. She did not go close
to her uncle to stop the bleeding and to see the injuries. She denies of
saying “Kakana Wachva”, while coming out of the house. As a matter of
fact, if an incident of such gruesome murder occurs in presence of a girl,
in a broad day light in a house, it is quite obvious that in such a
situation, what would be the mental condition of a person. It can
hardly be expected from a person to give all the minute details about
her or his behaviour or the reaction after having noticed such an act.
P.W. 7 Manali further deposed that after some time, P.W. 1 Komal
returned home and thereafter she accompanied her to the hospital.
Thereafter, certain questions were asked to P.W. 7 about the topography
of the room wherein she had explained that on either side and infront
of their room, there are other rooms. To the right side of the room,
there is a pipeline road, whereas to the left side, there is link road.
There are about six rooms between her room and the pipeline road.
There are eight rooms infront of these rooms. Towards left side, there
is a narrow lane through which one or two persons could pass at a time.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 53
60. Certain important aspects have been surfaced during her
crossexamination especially in paragraphs 10, 12 and 14 from which it
appears that at the time of incident, P.W. 7 Manali was cleaning utensils
in kitchen when she heard a sound like atom bomb and when she
turned immediately, she noticed the two persons running away from the
door of the room. It is argued by Mr. Pasbola, the learned counsel for
accused that she had no occasion to see the faces of assailants as she
could see only their back. It is nowhere deposed by P.W. 7 Manali that
when she witnessed those two assailants running away from the spot,
she could see only their back. She deposed that she noticed them
running away from the door. It is specifically brought out in her
evidence during cross that after cleaning the utensils when she was
engaged in placing them at their respective places, she heard the sound.
It is pertinent to note that even the first information report Exh. 177
indicates that two unknown assailants who fired a shot on the person of
Kamlakar Jamsandekar and escaped from the spot, were seen by her. A
minor omission was brought on record to the effect that there is no
mention in the FIR that she noticed those two unknown persons,
present by the side of her uncle. It is true that P.W. 7 Manali could not
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 54
describe the clothes on their person. Even if she described the unknown
assailants in the FIR, as already stated, in the natural course of events,
even a very courageous and brave hearted person would find it difficult
to describe persons in such a situation. It is pertinent to note that the
FIR is prompt which appears to have been registered at 16.56 hours i.e.
just after the incident in question which occurred around 16.45 hours.
There is hardly any question of embellishment or after thought.
P.W.32 Arun Kirtawde (Exh.404) was attached to Sakinaka Police
station in the month of March, 2007. On the day of murder of Jam
Sandekar he was on duty when he got a message at about 16.58 hrs.
that the deceased was fired. He informed about it to Sr.P.I.Khandagle
and duty officer Shri.Kasar. They proceed to the spot after making an
entry in the station diary which is proved at Exh.276. The contents are
in his handwriting. By the time he reached at the spot the deceased
was already taken to the hospital. When this witness went to the
hospital, as per direction of PI Khandagale he recorded the statement of
P.W.7 Manali. He called the prescribed form of the FIR from the police
station and thereafter PSI Nalawade reduced it into the writing. The
FIR is already marked as Exh.177. He testified that P.W.7 Manali has
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 55
categorically described the incident. P.W.32 then prepared inquest
panchanama which is proved at Exh.162. He collected the blood
sample and the bullet etc. given by the doctor which he deposed at the
police station and made entry accordingly in the station diary which is
proved at Exh.277.
During cross examination by the defence he testified that the
information about the attack was received from wireless set. The
wireless operator gave him the information which was insufficient and
therefore he did not take cognizance of it. It was also not known at that
time as to who gave the information to the
wireless control room. According to him the information that three
unknown persons assaulted Kamlakar Jam Sandekar was not sufficient
to lodge a report. Thereafter, he testified that the FIR is in the
handwriting of PSI Nalawade. Certain questions were asked to the
witness about making entries in the station diary when he returned to
the police station and about the entry in the station diary of the name of
the person who brought the form of FIR. No such entries have been
made. However, the contents of Exh.277 are in the handwriting of this
witness which has been substantiated during cross examination. It
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 56
further reveals from cross that while recording the report of P.W.7
Manali she was in a sound condition. He further admits that he took
the clothes of the deceased in his custody at Rajawadi Hospital after the
inquest panchanama. The witness was confronted with photographs
Exh.163 which does indicate the images of PI Khandagle and PSI
Bansode. Thus, it can be seen that the defence has made an
unsuccessful attempt to shake the testimony of this witness on the point
of FIR. There is nothing in his evidence which would indicate that he
had committed some gross illegality. The FIR is prompt. There is no
after thought. The witness has clarified as to how it was the first
information relating to the commission of a cognizable offence received
by him. Since there were no sufficient details received through wireless
message and therefore Exh.177 can be said to be FIR in terms of
Section 154 of the Code of Cr.P. The telephonic information given to the
police station without its nature being known to the police authorities,
cannot be said to be the first information report. This ratio has been laid
down by the Hon'ble Supreme Court in case of T.T.Anthony vs. State of
Kerala 2001 Cr.LJ page 3329 (S.C.) and AIR 2001 S.C. 2637.
60A. The learned counsel Mr. Pasbola suggested that first Saili
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 57
raised cries by saying “Mazya Wadilana Wachva” (save my father) and
then she came out of the room which the witness has denied. She also
denied the suggestion that they came out of the room and then raised
shouts “Kakana Wachva”. One thing is crystal clear that P.W. 7 Manali
was verymuch present on the spot at the time of incident. She had
witnessed the assailants running away from the scene of occurrence
within a fraction of second just firing a shot on the deceased Kamlakar
Jamsandekar who probably died on the spot itself. Now, so far as
identification of the assailants is concerned, P.W. 7 Manali has rightly
identified the two assailants in a T.I. parade, conducted by P.W. 24
Dattaram Kambli.
61. Even on the point of T.I. parade, P.W. 7 Manali has been
subjected to a searching crossexamination by Mr. Pasbola. According to
Mr. Pasbola, the learned defence counsel, P.W. 7 Manali was never called
by Sakinaka police station for T.I. parade. She was never asked to
attend any T.I. Parade by Sakinaka police station. As such, it is the
contention of the learned counsel Mr. Pasbola that the evidence of P.W. 7
Manali as an eye witness is neither credible nor reliable as she failed to
identify the two unknown persons.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 58
62. It is further argued that Sakinaka police station had
examined two alleged witnesses viz. Ms. Nita Shah and Mr. Mayuresh
Tandel. The said police station had prepared a sketch of the suspects on
the basis of information given by Ms. Shah which was also shown to Mr.
Mayuresh Tandel. Both these witnesses attended T.I. parade held on
31.5.2007 and 1.7.2006 Exhs. 470 and 471. Witness Ms. Nita Shah
had identified A16 Subhash Upadhyay and wanted accused Santosh
while witness Mayuresh Tandel had identified A16 Subhash Upadhyay,
A19 Badrealam Faruqui and A18 Mohd. Faruqui and wanted accused
Santosh Singh. In the light of the same, the evidence of the sole eye
witness P.W. 7 Manali cannot be said to be reliable.
63. On the other hand, Mr. Thakare, the learned SPP submitted
that after the investigation, Sakinaka police station had filed the charge
sheet on 11.6.2007 against the seven accused persons which include
A12 Pratap Godse and A13 Ajit Rane. However, no weapon was
recovered during their investigation. The only aspect which was brought
to fore was that the death of the deceased was caused due to a 12 bore
cartridge fired from a country made 12 bore weapon. It is further
argued by Mr. Thakare that although the investigation of Sakinaka
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 59
police station reveals that four accused were identified by witnesses Ms.
Nita Shah and Mr. Mayuresh Tandel (not examined) who were seen
running away from near the scene of occurrence, it was not the specific
case of the Sakinaka police station that either of them were actual
assailants. Moreover, once out of those four, three accused have already
been discharged by this court and the remaining one is still absconding,
there was no propriety in examining the connected witnesses. As unless
the executive officer and two witnesses on that T.I. parade are
examined, no evidentiary value can be attached to Exhs. 470 and 471.
He further argued that at the time of investigation by Sakinaka police
station, the widow of the deceased P.W. 1 Komal Jamsandekar did not
permit to send P.W. 7 Manali or for that matter, daughter Saili for
identification, probably due to the agony with which the family was
suffering, therefore, no blemish can be cast on the case of the
prosecution. He argued that this has also been testified by P.W. 21 P.I.
Kasar of Sakinaka police station at his evidence at Exh. 272. I am in
full agreement with the argument of learned SPP Mr. Thakare for, he
has rightly justified non examination of Nita Shah and Mayuresh
Tandel. There was no propriety in examining them.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 60
64. Now, coming back to the T.I. parade, during her cross, P.W. 7
Manali admits that she did not state in the statement recorded after T.I.
parade that the suspect whom she identified i.e. A2 Vijaykumar Giri
had fired at deceased Kamlakar Jamsandekar. According to her, she had
only stated that the said suspect was armed with a firearm. The next
part of the crossexamination is nothing but the repetition of what has
been stated by her in her examinationinchief as to how she visited the
Crime Branch Office and thereafter, went to the Arthur Road jail for the
purpose of T.I. parade. Interestingly, the learned counsel Mr. Pasbola for
the accused during crossexamination has brought in details from the
mouth of P.W. 7 Manali as to how she was taken to the room where T.I.
parade was conducted by P.W. 24 Dattaram Kambli. It is also brought
in crossexamination about the detail questions put to her by P.W. 24
and how she was asked to identify the suspect. The cross also reveals
the precautions taken by P.W. 24 Mr. Kambli as per the guidelines given
in Criminal Manual Chapter I, paragraph 61 (1). Even the detailed
description of the room where the T.I. parade was conducted has been
brought out with all minute details. It is deposed by P.W. 7 Manali that
there were curtains from all the four sides at the place of T.I. parade.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 61
The room in which the T.I. parade was held had only one door but she
had to go through two doors to enter the said room. She denied the
suggestion that T.I. parade had a wall of 3 feet height from all its sides
and there was grill over the walls. She denied that behind the curtains,
there was a cavity. The basic aspect while conducting the T.I. parade is
that there should be no occasion for the identifying witness to see the
suspects before conducting T.I. parade nor there should be any hint or
suggestion given to the identifying witnesses which have been duly
followed in the T.I. parade by P.W. 24 Mr. Kambli. She has also denied
the suggestion that the description of all the 14 persons in a row as
regards their height, complexion, built was different from each other.
She specifically deposed that seven of the fourteen persons did have
interse similarity about their height, complexion and built and
remaining seven had interse similarity about their height, complexion,
built. She also deposed that the distance between the room in which
she was placed before commencement of the T.I. parade and the room
in which she was kept after the first round of T.I. parade was about
1015 feet. She was in the second room for about half an hour and that
during that time, no person came to the said room. She also testified
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 62
that during the second round of T.I. parade, she realized that the group
of seven persons were different from the earlier group of seven persons.
65. Interestingly, in paragraph 16 of her crossexamination, it
has been reiterated by the defence that the first suspect which she
identified in T.I. parade was the one to whom she has described first in
the complaint. She deposed that the shorter suspect was of a slim
built . She has also duly identified those suspects in the court as A2
Vijaykumar Giri and A4 Narendra @ Kandi @ Guddu Lalmani Giri. She
admits that A4 Narendra Giri is taller than A2 Vijay Giri. This
particular aspect buttressed the prosecution case that at the relevant
time, it was A2 Vijay Giri who fired a shot from the .12 bore country
made handgun Art. 5 on the person of deceased resulting into his
death. The witness is asked whether she could be in a position to tell
that A2 Vijay Giri is appearing to be of 5.6” in height to which she
answered, “she is unable to state about height”. Such questions are not
of vital importance as an ordinary prudent man would not be in a
position to give the exact height of any person with a bare look.
Surprisingly, the further crossexamination reveals that the witness is
suggested that she was not at home at the time of incident and,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 63
therefore, she is unable to describe those two persons which she had
denied. Once it has been brought out in the evidence by the defence
about the presence of witness at the time of incident, suggesting the
witness about her absence in further crossexamination, is of no
consequence. She also denied the suggestion that the description
which she had given in the FIR is on the basis of information given by
neighbours and others. She also denied the suggestion that since she
had not seen the two assailants, she did not go to the Sakinaka police
station for the identification of the arrested suspects. A very strong
circumstance appearing in the FIR in her last two lines is that she would
identify those two unknown persons if they are again shown to her.
This speaks volume. She also denied the suggestion that A2 Vijay Giri
and A4 Narendra Giri were shown to her at the office of Crime Branch,
Unit III before conducting T.I. parade which has also been denied by her.
66. During her crossexamination by learned counsel Mr. Sejpal,
appearing for Accused nos. 4, 5 and 10 she admits she cannot state who
had accompanied deceased Kamlakar to the hospital. It might be one of
the two panchas viz. Sudhir Anjlekar. She denied that the panchas
Sudhir Anjlekar and Sanjay Govind Nachanekar are her relatives.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 64
During cross by learned counsel Mr. Rasal for Accused nos. 8, 12 and 13
she denied the suggestion that Kamlakar passed away at the hospital
while under treatment. She deposed that the police officers who had
been to their residence might have taken Kamlakar to the hospital. She
admits that she did not have a talk with those officers who took
Kamlakar to the hospital. She also admits that she did not ascertain
whether deceased was alive at home. This question appears to be
strange, for, in such a situation, how can a girl shocked and terrorized
with such an incident would ascertain whether her uncle was alive or
not. She denied that she was not present on the spot. Rest of the
defence counsel have declined crossexamination.
67. It is argued by Mr. Pasbola that there is a delay of about two
months in conducting the T.I. parade for which no reasonable
explanation has been given by the prosecution and, therefore, on this
ground also the identification of A2 Vijay Giri and A4 Narendra Giri by
P.W. 7 Manali requires to be discarded. I am afraid, I cannot buy the
argument of Mr. Pasbola for the reasons that the Crime Branch, Unit III
took investigation of the crime on 28.4.2008. Accused nos. 2, 3, 4 and
5 were arrested pursuant to a trap laiddown by the Criminal
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 65
Intelligence Unit, Crime Branch on 26.4.2008 near Govind Lachhiram
Snack and Tea Restaurant where they were preparing to commit a
dacoity. The accused were remanded to judicial custody on 6.6.2008.
The T.I. parade was conducted on 20.6.2008 i.e. just within 14 days
which cannot be termed to be a delay at all in the given circumstances.
68. P.W. 12 Motilal Chaudhari Exh. 190 is another important
witness on the point of identification of accused nos. 2 to 5 though he
had not actually witnessed the incident in question. P.W. 12 Motilal is a
hotelier by profession who was running a hotel viz. Kamla Aahar Gruha
on Andheri Ghatkopar Link Road at Asalfa Village. His hotel timings
were from 5.30 a.m. to 11.30 p.m. He used to serve eatables and meals
to the customers. He deposed that Komal Jamsandekar P.W. 1 is a
sitting corporator from the ward in which his hotel is located. Before
her election as a Corporator, her husband deceased Kamlakar
Jamsandekar was the Corporator from the same ward. The distance
between his hotel and residence of deceased Kamlakar was about 57
minutes by walk. He testified that in the month of June 2008, some
police personnel had been to his hotel who were enquiring in the
neighbourhood about the murder of deceased Kamlakar Jamsandekar.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 66
He went to his counter and recalled from the memory that some four
unknown persons used to visit his hotel during those days who were not
the regular customers as he knew that almost all were from the same
area and some of them were rikshaw drivers and some were working in
the nearby industry. Those four persons used to have breakfast and go
near Bus Stop of bus no.340. Even on the day of murder of deceased
Kamlakar, three of those four had been to his hotel to take breakfast.
Those four persons would visit his hotel and take lunch during those 20
days. However, on the day of the murder of Kamlakar, none of them
visited his hotel for lunch. They stopped visiting his hotel from the next
day of the murder of Kamlakar Jamsandekar. He noticed one of them
used to have a plastic bag. P.W. 12 Motilal, therefore, informed about
the same to the police. At the Office of Crime Branch at Lower Parel on
the next day, he was asked to meet officer Mr. Shelke P.W. 37. He
reiterated what he had noticed and gave description of those for
persons. Four days after his statement was recorded, he was again
summoned to the Office of Crime Branch where he was introduced with
P.W. 24 Dattaram Kambli. P.W. 7 Manali and P.W. 1 Komal Jamsandekar
who were also present. They were introduced to each other.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 67
Thereafter, P.W. 33 Mr. Shelke introduced P.W. 24 Dattaram Kambli with
P.W. 12 Motilal and others. All of them were taken to Arthur Road Jail.
At the gate of the jail, all of them got down from the vehicle. API Mr.
Shelke placed some documents in the custody of P.W. 24 Kambli and left
the place. All of them entered the Arthur Road jail. In the jail, the girl
i.e. P.W. 7 Manali and this witness were asked to be in one room. After
ten minutes, one of the two panchas took P.W. 7 Manali to another
room. After 15 minutes, the same panchas took P.W. 12 Motilal to one
large room. He locked the door. Another panch opened the door. P.W.
12 Motilal and the first panch entered the room. P.W. 24 Kambli, the
SEO was present there. There was a row of 14 persons. P.W. 24 Kambli
called upon P.W. 12 Motilal to identify the four who used to come to his
hotel from amongst the 14 in the row. P.W. 12 Motilal deposed that he
identified two persons in the row who used to come to his hotel to take
breakfast and lunch. The two told their names to P.W. 24 Kambli as
'Giris' P.W. 24 Kambli made some writing and then the same panch took
him to back to the room where he was kept. He testified that P.W. 7
Manali was not in the room. After half and hour again the same panch
took P.W. 12 Motilal to the same room. P.W. 24 Kambli was present.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 68
There was a row of 14 persons different from the earlier 14 persons.
P.W. 24 Kambli again called upon P.W. 12 to identify remaining two
suspects who used to visit his hotel. P.W. 12 Motilal thereupon
identified two more persons. One of them was of height of 5.10” with
wheatish complexion. The other was short one and some what of dark
complexion. On being asked by P.W. 24, they told their names as Giri
and Jaiswar respectively. The panch took P.W. 12 Motilal to the gate of
the jail and was asked to go back. At the gate, he returned the token to
the gateman. Outside the gate, P.W. 33 Officer Shelke was present
along with girl i.e. P.W. 7 Manali. Thereafter, they were taken to the
Office of Crime Branch. Thereafter, statement P.W. 12 was recorded.
This witness has identified A2 Vijay Giri, A5 Anil Giri, A3 Ashokkumar
Jaiswar and A4 Narendra Giri from amongst the four in the dock. He
deposed that these four persons used to come to his hotel to take
breakfast and lunch and that they stopped visiting his hotel from the
very next day of the murder of Kamlakar Jamsandekar.
69. This witness was also subjected to searching cross
examination by the learned counsel Mr. Pasbola. The questions on the
point of T.I. parade are similar to that of put to P.W. 7 Manali which
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 69
mainly pertained about the manner in which T.I. parade was conducted
by P.W. 24 Kambli and about the topography of the room where the
parade was conducted. During his crossexamination, P.W. 12 Motilal
deposed that in 2008, he had closed the hotel Kamla Aahar Gruha as it
was taken by him on rent. Deceased Kamlakar Jamsandekar had never
been to his hotel in connection with his election. He deposed that shops
and hotels of the ward were closed on the day of assassination of
Kamlakar. He did not visit the house of the deceased to offer
condolence nor did he attend funeral. He admits that there was heavy
Bandobast of police in the ward at the relevant time. There were 78
employees in his hotel out of which three of them were waiters. He
candidly admits that even on the day of incident, he did not suspect
those four persons. There is a police chowky at about 150 feet away
from his hotel. He further deposed that from the movements of those
four persons, he did not suspect them nor had there been any suspicion
when they stopped visiting the hotel. This witness being a hotelier, it
would hardly come to his mind that those four persons were conspiring
or planning to kill the Corporator of his ward. The crossexamination
further reveals that an officer of Crime Branch had been to his hotel in
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 70
the month of June 2008. When the police were enquiring in the
neighbourhood of his hotel then he realized about those four unknown
persons visiting his hotel. He admits that till that day, the police did not
visit the area surrounding his hotel for enquiring about the incident. He
was not aware about the arrest of some persons in connection with the
murder of Kamlakar. The learned counsel Mr. Pasbola again brought
from his mouth what has been testified by him in his chief about the
visits of those four persons for 20 days for taking breakfast and then
going at the bus stop of Bus no. 340. According to the learned counsel
Mr. Pasbola, this is an omission and, therefore, his evidence on that
point cannot be relied upon. It is of common knowledge that no
prosecution witness can reproduce each and every word from his
statement recorded by the police u/s. 161 of Cr.P.C. as it is a settled
position that a very limited use of such statement for the purpose of
contradiction and omission can be made. In his statement before the
police, P.W. 12 Motilal had briefly stated that by the end of February
2007, before the murder of Kamlakar Jamsandekar, four unknown
persons used to visit his hotel for breakfast, tea etc. and they used to
loiter around the hotel in that area. After the murder of Kamlakar
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 71
Jamsandekar, he had never seen them again. In view of the said
statement, what has been reiterated during cross by the defence cannot
be said to be a material omission. There is no reason to disbelieve this
witness so far as his evidence on oath is concerned about the visit of
four persons i.e. Accused nos. 2 to 5 to his hotel as he has no axe to
grind against them. He is a natural witness who has even supported and
corroborated the testimony of P.W. 7 Manali in material particulars in so
far as identification of these accused are concerned. The defence has
also tried to bring on record certain other omissions with respect to his
supplementary statement recorded on 20.2.2008. In the said
supplementary statement, P.W. 12 Motilal had briefly stated about the
identification of the accused from the row of 14 persons which were at
Sr. Nos. 5 and 11 who stated their names as Anil Giri and Vijay Giri and
thereafter, in second round of T.I. parade, he identified Narendra Giri
A4 and Ashokkumar Jaiswar A3. All minor omissions are immaterial.
The omissions can only be considered if they are material as material
omissions amounts to contradiction. The fact that he visited the Arthur
Road Jail to identify the suspects and in the T.I. parade conducted by
P.W. 24 Mr. Kambli has not been denied by the defence as it has been
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 72
elicited from this witness that pursuant to a letter received from the
ACP, D1 South he attended the T.I. parade. He also reiterated that
during identification of the four accused, he did disclose to P.W. 24
Kambli that those four used to visit his hotel for breakfast and lunch. It
is further elicited from this witness that he identified those four who
might have been visiting his hotel as there was a lapse of about a year.
Finally, he denied to have adduced false evidence at the behest of the
police.
70. The learned counsel Mr. Sejpal has adopted the cross
examination conducted by learned counsel Mr. Pasbola
71. P.W. 24 Dattaram Kambli Exh. 298 testified that he received
a letter on 18.6.2008, written by ACP Mr. Durafe P.W. 37. He was
requested to hold a T.I. parade on 20.6.2008. He acknowledged receipt
of the said letter which is proved at Exh. 299. His evidence further
reveals that on 20.6.2008, at about 10 a.m., he went to the Office of
Crime Branch and met API Shelke P.W. 33 who briefed him about the
facts of C.R. No. 69/2008 and requested him to hold T.I. parade at
Arthur Road jail. P.W. 24 Kambli accordingly decided to hold T.I. parade
at Arthur Road jail as the suspects were lodged therein. He required
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 73
two persons to act as panch witnesses. Accordingly, he selected
Subhash Anjarlekar and Sanjay Nachanekar, after having ascertained
their antecedents. By that time, complainant and the witness arrived at
the Office of DCB, CID. They were introduced by P.W. 33 Mr. Shelke.
P.W. 24 Kambli thereafter enquired about the names, addresses etc. of
the witnesses and told them about the T.I. parade to be held at Arthur
Road Jail. He also made them aware of the rules pertaining to T.I.
parade. He ascertained from the complainant and witnesses as to
whether the police have shown them the suspects before, to which, they
answered in negative. His evidence further indicates that thereafter, all
of them went to Arthur Road jail in a police vehicle. Except P.W. 33 API
Shelke, they entered the Arthur Road Jail. They met Deputy Jail
Superintendent Mr. Khedkar. He made him aware about the T.I. parade
of four suspects. He gave him the Court's order and the letter of Sr. P.I.
in that regard. The said letter is proved as Exh. 300. Mr. Khedkar
asked his subordinate to make arrangement to T.I. parade. P.W. 24
Kambli asked Mr. Khedkar to make arrangement for separate stay of
both the witnesses. Accordingly, Mr. Khedkar met his chamber available
for the witnesses. Thereafter, P.W. 24 Kambli went to the room meant
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 74
for holding T.I. parade. After some time, Mr. Rao came with the four
suspects. P.W. 24 Kambli enquired with them about their names and
addresses etc. He also ensured as to whether the police had ever shown
them to the witnesses to which they denied to have shown to the
witnesses. Thereafter, he asked the Jailor Mr. Rao to make arrangement
of some thirty persons. Accordingly, Mr. Rao produced thirty persons
before P.W. 24 Kambli. He selected 24 out of them who had looks
similar to the four suspects. He asked remaining six to go back.
72. P.W. 24 Kambli further deposed that he decided to conduct
the T.I. parade in two phases. He selected two from the four suspects
and 12 from the 24 dummies for first round. He recorded the names
and other details of the 12 dummies and asked them to stand in a row.
He asked remaining two suspects and the dummies to go to the T.I.
parade room. He again enquired with the two suspects their names and
addresses who stated their names as Vijay Harihar Giri A2, age 28 years
and Anil Sherbahadur Giri, age 24 years. Thereafter, P.W. 24 asked
panch Mr. Nachanekar to fetch the witnesses. When Mr. Nachanekar
left the room, he asked the other panch to bolt the entrance door of the
T.I. parade room. He asked accused Vijay Giri to stand at any place in
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 75
the row. Accused Vijay Giri preferred to stand between dummy nos. 4
and 5. Accordingly, accused Anil Giri preferred to stand between
dummy nos. 9 and 10. P.W. 24 Kambli also asked the suspects as to
whether they wanted to change their clothes to which they refused.
There was a knock on the door as panch no.2 had brought the
complainant. Panch no.1 opened the door. P.W. 24 Kambli asked the
girl her name and address etc. She gave her name as Manali Keshav
Hire P.W. 7. Thereafter, P.W. 24 Kambli asked her to observe all the 14
persons in the row. After having observed them, P.W. 7 Manali pulled
out a person standing between dummy nos. 4 and 5. She narrated
some matter which had been recorded by P.W. 24 Kambli in the
memorandum of T.I. parade. On being asked, the suspect told his name
as Vijaykumar Harihar Giri. Thereafter, panch no.2 took P.W. 7 Manali
outside the T.I. parade room and kept her away from the other witness.
P.W. 24 Kambli asked the panch to bring another witness. The door was
closed. P.W. 24 again asked the suspect the position and the clothes on
their person, if they desired. Both the suspects refused. Thereafter,
another panch knocked the door. After opening the door by the co
panch, the said panch entered with the second witness who told his
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 76
name as Motilal Chaudhari. P.W. 24 asked him to identify the suspect
from amongst the 14 in the row. After having observed, P.W. 12 Motilal
pointed out the suspects standing between dummy nos. 4 and 5 and 9
and 10. P.W. 12 Motilal informed P.W. 24 Kambli that those two persons
used to visit his hotel along with two more persons. It was put in
writing in the memorandum by P.W. 24 Kambli. On being asked, those
two suspects stated their names and addressed. Thereafter, he asked
panch no.2 to call the Jailor. As per the instructions of P.W. 24, the
Jailor took back the two suspects and the 12 dummies.
73. P.W. 24 Kambli further testified that then he asked panch no.
1 to call the remaining two suspects and 12 dummies and they came.
He recorded their names. He enquired with the suspects their names
and addresses upon which they stated their names as Narendra @ Kandi
@ Guddu Lalmani Giri, age 21 years and Ashokkumar Jaiswar, age 21
years. They were asked to take their positions in the row of dummies.
Accordingly, Ashokkumar Jaiswar stood between dummy nos. 3 and 4
while Narendra Giri took position between dummy nos. 8 and 9. P.W.
24 Kambli asked them whether they want to change their clothes which
they refused. Thereafter, panch no.2 came with P.W. 7 Manali. Manali
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 77
pointed out the suspect who was standing between dummy nos. 3 and
4. Her version was recorded in the memorandum by P.W. 24 Kambli.
The said suspect stated his name as Narendra Lalmani Giri. Thereafter,
the panch witness escorted Manali out of the T.I. parade room. P.W. 24
Kambli asked the other copanch to fetch Motilal. Before arrival of P.W.
12 Motilal, P.W. 24 Kambli asked the suspect whether they wanted to
change their clothes on their person. They declined. Panch no.2 came
with the witness. He was asked to identify the suspects. The witness
identified both the suspects. P.W. 24 had accordingly recorded about it
in the memorandum of T.I. parade whatever stated by the witness.
Thereafter, he called the Jailor and handed over the custody of dummies
and both the suspects to him. Thereafter, P.W. 24 Kambli completed the
memorandum of T.I. parade in the presence of both the panch
witnesses. He read over the memorandum to both the panch witnesses.
The recording of the memorandum was made as the T.I. parade
progressed, simultaneously. The T.I. parade was conluded by 13.40
hours. He obtained signatures of both the panchas on the
memorandum. He signed the same and put rubber impression of his
office. The memorandum is proved at Exh. 301. Thereafter, he came
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 78
out of the Arthur Road Jail and gave the memorandum of T.I. parade to
P.W. 33 API Shelke.
74. During his crossexamination by Mr. Pasbola, the witness
testified that he had conducted about 250 T.I. parades. He denied of
having conducted most of the T.I. parades of Crime Branch. However,
he admits that he had conducted 35 T.I. parade for the different units of
Crime Branch. His crossexamination reveals that he maintains a
register of T.I. parades which he had conducted. He had produced the
register for the year 2008. He deposed that there is a separate place for
T.I. parade in Arthur Road Jail. His attention was drawn to Exh. 301,
which is silent about the detail description of the place where the T.I.
parade has been held. He admits that he did not make any note in the
register about the antecedents of the panch witnesses. Further cross
examination pertains to the visit of API Shelke, panch witness,
identifying witnesses proceeding towards Arthur Road Jail and about
the directions given by the Jailor Mr. Rao to the Superintendent Mr.
Khedkar to make available 30 prisoners to act as dummies etc. The
witness admits that there is no mention in the memorandum about the
place where the remaining 12 dummies and two suspects were kept
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 79
during the first round of T.I. parade. There is also no mention in the
memorandum that no police officer or their official was present in the
T.I. parade room during the parade. However, the witness referred to
the certificate appended to the T.I. parade memorandum. P.W. 24
Kambli has further deposed during cross that P.W. 7 Manali took 45
minutes to identify the suspects. Similarly, she took that much time
during the next round. The other witness also took about 45 minutes
during both the rounds. Though the memorandum is silent to that
effect, nevertheless, the defence itself has elicited from this witness as to
the signature taken of both the witnesses to identify all the four suspects
which is in corroboration to the evidence of P.W. 7 Manali and P.W. 12
Motilal Chaudhari who testified about the identification of the suspects
during the T.I. parade. The witness further admits that there is no
mention in the memorandum that all precautions were taken to see that
the suspects are not seen by the witnesses while bringing them in the
T.I. parade room. There is also no mention in the memorandum about
the place where Panch no.2 took the first witness Manali after her
participation in both the rounds. The witness is shown the sketch of the
T.I. parade room which is marked as X61. His attention was drawn to
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 80
view 5 in X61 wherein the witness admits that the view 5 is correct
except there is no tarpaulin sheet. He admits that if there is no
tarpaulin sheet, then T.I. parade room is visible from outside. P.W. 24
Kambli admits that he is aware of the guidelines given by the Hon'ble
High Court and that the certificate is appended as per the guidelines.
He also admits that there is no mention of time at which he commenced
recording memorandum and concluded the same. However, he denied
that he did not take any precaution as has been mentioned in the
certificate. A perusal of Exh. 301 the memorandum shows that the T.I.
parade has been conducted by P.W. 24 D. Kambli in a flawless manner as
per the guidelines given in Chapter I paragraph 16 of the Criminal
Manual. These are the guidelines. The basic purpose is that the parade
should be arranged in a room or place which is such that the identifying
witnesses, as well as the persons connected with the police, should not
be able to look into it. It is not the requirement of the law that there
should or should not be any door or windows or that it should be a very
tightly closed rooms from all sides. The purpose and object for which
the T.I. parades are to be conducted has been duly observed by this
witness and, therefore, I do not see any reason to disbelieve the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 81
unrebutted testimony of P.W. 24 Kambli. His evidence has not been
rebutted during cross and and has inspired confidence. The certificate
annexed to Exh. 301 clearly indicates that he took all precaution to see
that no concerned police officer was present at the time of T.I. parade
and that he also took precautions to see that the witnesses do not see
the suspects in any manner. It also depicts the time at which it started
and the time at which it concluded. The signatures of the panch
witnesses are also taken.
75. The defence has pressed into service several rulings on the
point of test identification parade. I shall refer the said authorities as
shown hereinbelow:
(i) 2008 Cr.L.J. page 3036 (Supreme Court) in the case of Mahabir v. State of Delhi. The broad principles laiddown by the Hon'ble Supreme Court are as under:
(A) Evidence Act, Section 9 – T.I. parade – Do not constitute substantive evidence – Identification can only be used as corroborative of statement in Court.
(B) Necessity for holding parade can arise only when accused persons are not previously known to witnesses.
(C) Main object, during investigation stage, is to test memory of witnesses based upon
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first impression and also to enable prosecution to decide whether all or any of them could be cited as eye witnesses of crime.
(D) It should be conducted as soon as possible after arrest of accused. This becomes necessary to eliminate possibility of accused being shown to witnesses prior to parade.
(E) The purpose is to test and strengthen trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of sworn testimony of witnesses in Court.
(F) There is no provision in Cr.P.C. which obliges investigating agency to hold or confers a right upon accused to claim test identification parade.
(G) It is essentially governed by Sect. 162 of Cr. P. C. Failure to hold same would not make inadmissible evidence of identification in Court.
(H) In appropriate cases, Courts may accept evidence of identification even without insisting on corroboration.
Similar ratios have been laiddown in the following authorities
cited by the defence:
(i)2004 Supreme Cort Cases (Cri) Supp 489 in the case of Lalsingh and others
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 83
versus State of U.P.
(ii) 2010 SAR (Criminal) 227 Supreme Court in the case of Musheer Khan @ Badshah Khan & anr. versus State of M.P.
(iii) AIR 1993 Supreme Court 2618 in the case of Girja Shankar Misra v. State of U.P.
(iv) 1979 Supreme Court Cases (Cri) 147 (1979) 1 SCC 79 in the case of Antar Singh vs. State of M.P.
In this case there was delay of about 12 months, whereas in
the instant case, the delay is only of 14 days.
(v) 1931 Supreme Court Cases (Cri) 634 in the case of Wakil Singh and others vs. State of Bihar.
(vi) 1993 Crimes 466 in the case of State of Maharashtra vs. Subhaiya Kanak Maniah & Ors.
(vii) 1998 ALL MR (Cri) 471 in the case of The State of Maharashtra Vs. Rajesh alias Kaka Madanlal Soni & others.
76. On the other hand, SPP Mr. Thakare has placed useful
reliance on the authorities of the Hon'ble Supreme Court reported in
2010 (3) AIR Bombay R (S.C.) 551 (S.B. Sinha, Dr. Mukundakam
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 84
Sharma, JJ), Mohd. Farooq and anr. v. State of Maharashtra. It is
held by the Hon'ble Supreme Court in paragraph 76 which reads thus:
“The contention of the learned counsel appearing for accused persons that there was inordinate delay in conducting the TIP cannot be accepted in view of the fact that both the accused persons were taken into custody on 25.06.1999 whereas the TIP was held on 10.,8.1999. Therefore, the TIP was conducted only after a period of 45 days which is not such a long period to cast any doubt over the evidentiary value of the TIP. Even otherwise, a TIP does not constitute substantive evidence but can only be used for corroboration of the statement court. It is primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation is proceeding on the right lines. The substantive evidence is the evidence of identification in court, which in the present case has been done by P.W. 18. This Court in the case of Amitsingh Bhikamsingh Thakur v. State of Maharashtra, (2007) 2 SCC 310, at page 315, has succinctly observed as follows:
As was observed by this Court in Matru v. State of U.P. 1 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the statement in Court. (See Santokh Singh v. Izhar Hussain2). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 85
to have seen the cluprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime”.
This judgment of the Hon'ble Supreme Court is under the provisions of
MCOC Act. In the said case, the T.I. parade was conducted after a
period of 45 days which according to the Hon'ble Supreme Court is not
such a long period to cast any doubt over the evidentiary value of the
T.I. parade. It is observed that even otherwise the T.I. parade falsified
substantial evidence, but can only be used for corroboration of the
statement in Court. It is practically important for the purpose of
helping the investigating agency with an assurance that their progress
with the investigation is proceeding with the right line. The substantive
evidence is the evidence of identification in Court which is in the
present case has been done by P.W. 18. The ratio is clearly applicable to
the instant case as there is only a delay of 14 days and that not P.W. 7
Manali whose unimpeachable and trustworthy evidence established the
complicity of A2 Vijaykumar Giri and A4 Narendra Giri and more
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 86
particularly the role played by A2 Vijaykumar Giri in assassinating the
deceased, but it is also corroborated by the natural evidence of P.W. 12
Motilal Exh. 190 and also supported by the evidence of P.W. 4 Abdul
Rehaman Exh. 167, which I shall discuss at the appropriate stage.
77. The prosecution has thus, proved beyond doubt that the A2
Vijaykumar Giri and A4 Narendra Giri had trespassed into the house of
the complainant on 2nd March 2007, armed with a country made
handgun and opened fire upon Kamlakar Jamsandekar. The kind of
weapon used and the vital part of the body chosen by the shooter
clearly manifest their intention and knowledge as well as mensrea to
eliminate the deceased. They also knew that a single shot at point blank
range would, in all probability cause death of deceased who was
unarmed and defenceless. There is no room for doubt in so far as the
identification of A2 Vijaykumar Giri and A4 Narendra Giri in the light
of the testimony of P.W. 7 Manali is concerned and about the other two
accused i.e. A3 Ashokkumar Jaiswar and A5 Anil Giri who used to
roam around the house of the deceased and visiting the hotel of P.W. 12
Motilal Chaudhari. How and why these accused in furtherance of their
common intention committed the murder of Kamlakar Jamsandekar
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would also be discussed at the appropriate stage.
78. Now, the next important question would be as to whether
the weapon Art. 5 seized by the investigating agency is the one used by
the assailants to eliminate Kamlakar Jamsandekar and how the said
weapon was procured?
79. P.W. 13 Shyamsundar Shridhar Munj Exh. 192 was an
Assistant Chemical Analyser in the Ballistic Department of CFSL, Kalina.
He is B.Sc. in Physics and Chemistry. He has undergone departmental
training in ballistic and has experience of ten years. He examined
firearms and ammunitions as well as examined empty cartridge and
bullet retrieved from the body. The first two paras of his evidence on
oath gives the nature of his work, how the articles are received in a
sealed condition and how the examinations and analysis are conducted
in the laboratory.
80. He testified that on 7.3.2007, his officer received four sealed
parcels and one sealed bottle along with forwarding letter by ACP
Sakinaka Division pertaining to C.R. No. 82/2007, along with a
messenger. It was duly acknowledged, which is proved at Exh. 193.
The original forwarding letter is proved at Exh. 194. Following articles
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were found in the parcel:
1. Exh. 1 one wooden forearm with metal at one end in a polythene
bag wrapped in paper marked Exh. A1 (in Marathi v&1).
2. Exh. 2 sandow baniyan (cut) wrapped in paper marked as Exh.
c&1.
3. Half pant (Bermuda) wrapped in paper marked as Exh. c&2 .
4. Jangya wrapped in paper marked as Exh. c&3 .
5. Reddish liquid in bottle marked as Exh. v&2 .
81. The witness testified that after doing physical and chemical
examination of Exhibits 1 to 4, he sent Exh. 5 to the Biological
Department. The result of analysis was as follows:
“Exh. 1 is crudely prepared gripping piece (forearm) of a gun. It is also known as scarbutt. Shot holes were not observed on the baniyan, half pant and the jangya (Exhs. 2 to 4 respectively)”.
The report given by this witness is proved at Exh. 195. The scar butt
i.e. the grip has been examined by him bearing No. BL215/07 and BL
456/2008. A wrapper is shown to the witness which pertains to the
same article which was again received by the office. The report is
marked as Art. 1B. This article was received twice by the office and,
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therefore, there were two labels. The witness thereafter, referred to the
BL 216/07, which according to him was brought by police constable
bearing Buckle No. 4064 of Sakinaka police station who deposited a
sealed plastic container along with a forwarding letter signed by the
officer of J.J. P.M. Centre, Byculla, Mumbai. The sealed was perfect. It
was accepted along with a forwarding letter. The parcel was opened by
the witness on the same day. It contained Exh. 1 deformed lead pellets
(No. 71), Exh. 1A deformed Air cushion plastic wad, Exh. 1 and 1A
together put in a plastic container labelled ASG/21/27 dated 2.3.2007
with name of the deceased and ADR No.23/2007, Sakinaka police
station. The witness conducted physical and chemical examinations of
pellets and wad. He gave his report. He found the pellets which have
been were of shot size no.1. Those are generally used in a shot gun.
Exhibit 1 is a fired 12 bore plastic air cushion wad. The deformed lead
pellets in Exhibit 1 and air cushion wad in Exhibit 1 are consistent with
12 bore shotgun, cartridges of shot size no.1. The report duly proved at
Exh. 196.
82. He also noticed large number of pellets in the air cushion
wad recovered from the body of the deceased indicating that it was a
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close range firing. The original forwarding letter from J.J. Hospital isi
proved at Exh. 197.
83. He deposed that on 7.3.2007 P.C. No. 4064 of Sakinaka
police station deposited two sealed bottles in the ballistic department of
CFSL along with forwarding letter of Medical Officer of J.J. Post
Mortem Centre. It was given a number as BL 217. The parcel
contained a turbid liquid in the bottle labelled right hand wash. Exh. 2
Turbid liquid in a bottle labelled left hand wash. It also labelled the
name of the deceased.
84. The witness testified that after physical and chemical
examinations, he prepared his report. He found the gunshot residues
(such as lead, nitrate, antimony, barium) in a liquid in Exhibits 1 and 2
are inconclusive. The said report is at Exh. 198. The forwarding letter
is marked at Exh. 199. On the same day, he also received articles in a
sealed plastic bottle which contained skin piece in a bottle, labelled
“ASG/21/07” dated 2.3.2007 of Kamlakar Bhaskar Jamsandekar. After
examination, he detected metallic lead around the periphery of shot
hole of Exhibit 1 is consistent with the passage and wipe of lead
shots/lead pellets. The said report is proved at Exh. 200 and the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 91
forwarding letter at Exh. 201.
85. He further testified that on 3rd June 2008, police constable
Lakhan Lamba bearing No. 31941 from CID D1, South Mumbai
submitted a sealed plastic parcel of one sealed parcel in ballistic
department along with forwarding letter of ACP, CID, D1. The case
was given number as BL 456/2008. After opening the parcel, he
noticed following description of the said parcel:
Exh.1A is one single long barrel breech loading country made
handgun without forearm (gripping piece).
Exh.1B one intact 12 bore shotgun cartridge.
Exh. 1A and 1B together wrapped in plastic and labelled,
“Vijaykumar Giri Exh. A and A1.
Exh. 2 one wooden forearm with metal at one end put in a
polythene bag and wrapped in paper, labelled, “Sakinaka police station,
Mumbai, C.R. No. 82/2008, BL215/07 and having a seal FORESNSIC
LABORATORY BOMBAY, BL. Exh. 1.
86. After conducting physical and chemical examinations, he
framed his report. Exh. 1A is a single long barrel breech loading
country made handgun without forearm. Exh. 2 is a wooden forearm
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 92
(gripping piece). The country made handgun Exh. 1A and wooden
forearm in Exh. 2 was properly assembled to form a single long barrel
breech loading country made handgun and now it was in working order.
He testified that residue of fired ammunitions nitrate was detected in
the barrel washing of country made handgun assembled by Exhibit 1A
and Exhibit 2, showing that assembled handgun was used for firing.
87. According to this witness, 12 bore shotgun cartridge from
laboratory stock was successfully test fired through the country made
handgun assembled by Exhibit 1A and Exhibit 2. Fired pellets
completely penetrated through soft wooden plank of thickness 3.4” kept
at a distance of 2' away from muzzle end. Thus, according to this
witness, assembled country made handgun is effective for causing
casualty from close range.
88. The 12 bore shotgun cartridge in Exhibit 1B was dismantled
in the laboratory for examination and cap of this cartridge was found to
be live on test firing through the country made handgun assembled by
Exhibit 1A and Exhibit 2.
89. The report, accordingly was prepared by him and proved at
Exh. 202. The forwarding letter is proved at Exh. 203 and the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 93
acknowledgment of the receipt is proved at Exh. 204.
90. He deposed that since there was a query regarding matching
fit of single barrel country made handgun and the grip i.e. forearm in
Exhibit 2, the said articles were sent for examination to the Physics
Division of the Laboratory on 4.7.2008. The witness has identified the
shotgun marked as Art. 5 and testified that it is the same article which
he had examined. He has also referred the wrapper bearing office seal
marked as Art. 5A. A packet containing empty cartridge of 12 bore
which was dismantled in the laboratory containing pellets collectively
marked as Art. no.9.
91. On 1.8.2008, along with P.C. No. 27602 who came to the
Office with a letter delivered all the muddemal along with the reports
Nos. K241/2008 and BL 456/2008. He obtained the acknowledgment
of the concerned constable Exh. 205. He testified that after firing a
shot from this kind of gun, the empty cartridge would remain in a gun
itself.
92. Mr. Pasbola, the learned counsel devoted first four
paragraphs of crossexamination mainly about asking the questions to
the witness as regards the qualification and working about his
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 94
laboratory function, the manner in which the articles are received,
opened, sealed and so on. This part is immaterial. What is material is
that what the expert actually did since the witness has already testified
that his experience and the manner of working in the laboratory. It is
needless to reiterate the same thing again. He denied the suggestion
that he was not supposed to examine about any particles or metallic
discharged on the clothes. He testified that even if no shot hole is
noticed by naked eye, microscopic examination is still made. Two
queries were made by the police which were about the wooden scar
butt (grip) which are: (1) what kind of article it was and (2) of what
kind of bore firearm it was related to? The witness answered that from
the scar butt itself, it could not be determined to what kind of bore
forearm it was related. He denied that the said scar butt can fit in with
any kind of bore firearm. He further deposed that it was difficult to
state in the absence of weapon that what kind of bore forearm that fit
in. It is pertinent to note that Sakinaka police station only could
recover this scar butt at the scene of occurrence which is evident from
the photographs of the scene of occurrence and subsequently the
DCB,CID could detect the handgun Art. 5 from A2 Vijay Giri during the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 95
raid conducted when the A2 Vijay Giri, A3 Ashokkumar Jaiswar, A4
Narendra Giri and A5 Anil Giri were preparing to commit a dacoity.
93. Admittedly, the report of ballistic expert does not indicate
the distance of firing as no such query was made either by Sakinaka
police station or by Crime Branch. However, he admits that the distance
of firing can be ascertained on the basis of examination of clothes on
the person of the victim and his body. He also admits that a detection
of metallic lead on the periphery of shot holes on the skin piece would
not determine the firing distance. He also admits that in case of country
made handgun, the pellets come in contact with a small portion of the
barrel and, therefore, the markings are insufficient to connect such
pellet to a particular firearm. It is reiterated that he only did one test
fire. Thereafter, the attention of the witness has been drawn to page
nos. 226, 229, 230, 231, 240 of Book on firearm in Criminal
Investigation and Trial by Dr. B.R. Sharma. Obviously, the witness
would agree with the propositions made by the author in the said book
which relate to the bullets. The witness has rightly answered that those
propositions relate to bullets and not pellets. His attention was also
drawn to page no.240 of the book which relates to walkers test which is
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 96
also conducted in the laboratory. Further, the witness testified that
some times, cushion wads are used in place of firearm linkage. It is
very rarely useful because air cushion wads do not get any marking
inside from the barrel which is a characteristic of that weapon. He
testified that theoretically it is only possible and not practically. It is
pertinent to note that the witness has categorically deposed in cross that
even without the forearm, firing was possible. However, there is
possibility of bursting of barrel. As such, nothing could be elicited from
this witness which would render his testimony unworthy of credence
and I do not see any reason to disbelieve the opinion of the expert who
had examined the firearm Art. 5 and gave his candid opinion that it was
the same weapon used by the culprits at the time of incident. All other
possibilities and hypothesis have been ruled out. The bullets retrieved
from the dead body of deceased Kamlakar Jamsandekar, plastic wad,
examination of skin piece in a bottle and other aspects clearly shows
that Art. no. 5 i.e. country made handgun was used in eliminating the
deceased. This witness was not crossexamined by any of the remaining
defence counsel.
94. The evidence of another expert P.W. 14 Mrs. Anjali Badade is
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on the point of examination of the scar butt i.e. the forearm. Her
evidence is at Exh. 206. She testified that she has been working as an
Assistant Chemical Analyser since 2005. Her qualification is M.Sc. in
Organic Chemistry.
95. On 5th July 2008, some papers were received from Ballistic
Division with a note to analyse Exhibits 1A and 2. Exhibit 1 contained
one single barrel breech loading handgun without forearm wrapped in a
plastic and again wrapped in a paper, marked Exhibit ABL456/08/Ex.
1A. Exhibit 2 contained one forearm put in a polythene bag wrapped in
plastic and wrapped in paper labelled BL456/08/Exh.2. The witness
testified that when she tried to fix Exhibit 1A with Exhibit 2, the same
exactly fixed with Exhibit 1A. She has duly identified the articles in the
court and opined that scar butt like part could give away soon after a
firing of a shot. She proved her report which is at Exh. 207.
96 In cross, she testified that she had undergone departmental
training of six months. She had undergone training in soil analysis,
paint analysis, glass analysis, matching fit etc. She had given opinion
about 50 cases in a field of matching fit articles such as bangles, roap,
wooden logs etc. However, she has not undergone training as regards
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 98
identification of wood. She admits that her report Exh. 207 is silent on
the point that the scar butt could give away soon after firing of shot.
That itself does not falsify her evidence because what has been testified
by her is an expert in matching fit is quite inspiring and trustworthy as
it cannot be said that the said scar butt detached from the weapon
would fit with any other weapon since it was a country made handgun.
Even, it is not necessary that the wood of the handgun and that of the
scar butt should be the same. There is no effective crossexamination of
this witness also. Her testimony has not been shaken by the defence. It
has rightly been deposed by her that if two articles are fixed together
and if they appeared to be one, then they are stated to be natural. She
had handed over both the articles back to the Ballistic expert on
1.8.2008. This witness was not crossexamined by any of the other
defence counsel.
97. The following points would, therefore, substantially
establish the connection with the recovered handgun Art. 5 and the
offence of the murder of Kamlakar Jamsandekar:
(a) Art. 5 is a single barrel breech loading
country made handgun (Exh. 202).
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 99
(b) The scar butt/forearm is missing (Exh.
202).
(c) The barrel washing shows the handgun
(Art. 5) was used for firing prior to its receipt
in the laboratory.
(d) The wooden firearm (Art. 1) is easily and
properly assembled with the country made
handgun (Art. 5) for usage of ballistic
examination (Exh. 202).
(e) 12 bore cartridges could successfully be
test fired through the country made handgun
(Art. 5).
(f) The scar butt/forearm (Art. 1) shows
characteristic matching fit with the
corresponding handgun (Art. 5) (Exh.207).
98. The oral evidence of P.W. 22 Dr. Bansude Mahadev
Eknathrao Exh. 279, post mortem report Exh. 281, the report of
Forensic Science Laboratory Exh. 198, Exh. 195, Exh. 196, Exh. 202,
Exh. 207 visavis the evidence of Dr. Munj and P.W. 14 Mrs. Anjali
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 100
Badade if viewed together, clearly established that it was the handgun
(Art. 5) used as a weapon in commission of the murder of Kamlakar
Jamsandekar.
99. The 16 coloured photographs collectively marked at Exh.
163 clearly indicates the position of the victim in his room and the scar
butt lying near his foot on the floor as well as the enlarged photographs
of the said scar butt, that it unfixed and fell down at the time of
opening fire by A2 Vijaykumar Giri on the deceased. There is
absolutely no room for any doubt that this gruesome murder was
committed with daring by the A2 Vijay and A4 Narendra with A3
Ashokkumar, in a broad day light by trespassing into the house of the
deceased. The photographs of the scar butt/wooden forearm also
clearly depicts its metallic part embedded in the wood which got
detached/unfixed from the handgun. As a matter of fact, no expertise is
required to show that it match fixed with the handgun which even an
ordinary man of prudence can say with certainty.
100. Now, the next important question would be as to how the
DCB, CID could lay its hand on the country made handgun Art. 5. As
already stated in the preceding paragraphs, Criminal Intelligence Unit
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 101
(CIU), a unit of Crime Branch, Mumbai upon certain information, on
26.4.2008, laid a trap near Govind Lachhiram Vegetarian Snacks and
Thali Restaurant, Kalbadevi Road, Mumbai, within the jurisdiction of
L.T. Marg police station and arrested A2 Vijay Giri, A3 Ashokkumar
Jaiswar, A4 Narendra Giri and A5 Anil Giri while they were preparing
to commit dacoity. In that regard, the evidence of P.W. 26 Ashish
Krishnarayan Shukla, a panch witness and P.W. 27 API Ajay Joshi Exh.
313 and P.W. 31 H.C. Ramesh Bhokare Exh. 399,would be relevant.
Evidence of these witnesses find full corroboration from the documents
viz. panchanama and FIR lodged by P.W. 31 Exh. 314 and Station diary
entries Exh. 316 (colly.).
101. The evidence of P.W. 31 Ramesh Bhokare indicates that
pursuant to an information on 26.4.2008 when he was attached to
DCB,CID, CIU, Mumbai about a dacoity to be committed near
Govindram Lachhiram Hotel, he informed about the same to P.I.
Sandbhor of the DCB,CID, CIU, Mumbai. Accordingly, a squad
comprising PSI Ajay Joshi, HC Kharat, Rane and PN Pawar was formed.
P.W. 31 Bhokare shared the information and accordingly they proceeded
towards the said Govindram Lachhiram Hotel in two different vehicles
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bearing registration No. MH01BA 843 and MH 01 BA 939. They
reached near Kalbadevi Road at about 2 p.m. They laid a trap under
the directions of PI Sandbhor. This witness and PI Sandbhor with police
naik Pawar stood near the Govindram Lachhiram hotel while PSI Joshi,
HC Rane and HC Kharat stood near Ram Mandir, Ramwadi. At 3.15
p.m., three persons came over there and after 15 minutes, the other two
persons came over there on a motor bike. All of them thereafter
entered into Govindram Lachhiram Hotel. This witness also followed
them and occupied the back seat in the hotel where the accused were
discussing that “Pintu Tu tera saman leke Prakash Gold Palace me chale
jana, tere baad mai, Kandi aur Ashok apna apna saman leke pahunch
jayenge aur kam hote hi, mai tera saman leke motorcycle ke pass pahunch
jaunga, phir apun lok Dahisar me milenge” P.W. 31 Bhokare immediately
came out of the hotel and gave the said information to PI Sandbhor.
Upon it, PI Sandbhor alerted everybody. One of the five accused came
out of the hotel and proceeded towards Prakash Gold Palace. Another
four also came out of the hotel, but some how they got the hint about
the presence of police personnel and, therefore, they tried to get
separated from each other. Suddenly, PI Sandbhor made a signal to nab
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them and accordingly four of them were arrested on the spot while P.W.
31 who was following one of them towards Prakash Gold Palace could
not catch hold of him. Thereafter, the accused were asked as to
whether they wanted to effect search of the panch witnesses to which
they refused and on being asked, the accused gave their names and
addresses. They were Vijaykumar Harihar Giri, resident of Kokani Pada,
Dashisar, Mumbai, Ashokkumar Shivkant Jaiswar, resident of Pratap
Nagar, Bhandup, Mumbai, Narendra @ Kandi @ Lalmani, resident of
Hanuman Tekadi, Dahisar, Mumbai and Anil Sherbahadur Giri, resident
of Chandiwali, Andheri, Mumbai. While effecting the search of A2
Vijay Giri, the raiding party found a handgun with a wooden handle
concealed near the left waist. The handgun was loaded with a live red
coloured cartridge over which “Special 65 MM Agnisham Factory
Khadki” was scribed. It has a metal cap over which “KF 12” was
embossed. A driving licence and a badge was found in the pocket of the
shirt along with a mobile handset of Nokia company. Cash of Rs.70/ in
the denomination of Rs. 50 x 1 and Rs.10 x 2 was also found on the
person of A2 Vijay Giri.
102. Thereafter, the police officer found a 12 inches knife with 7
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inch blade with a compass on its handle and cash of Rs.40/ on the
person of A3 Ashokkumar Jaiswar.
103. A 12 inch knife having 3 inches metal strip at the end of its
handle, a yellow colour wallet, a PAN card bearing name as
Satyendraalal B. Srivastav, a telephone diary, a pink coloured
attendance card and cash of Rs.30/ was found on the person of A4
Narendra Giri.
104. Lastly, A5 Anil Giri, during his search, was found to have
been in possession of 11 inches long knife, a black coloured rexin purse,
an identity card of Film Studio Mazdoor Union, some visiting cards,
cash of Rs.50// a key of motor bike, a Nokia mobile handset, Sim card
of Hutch company bearing Mobile No. 9920596508. The police also
found 50 grams of chilly powder in a packet and some string (Sutal).
The police officer also took into possession a motorbike bearing No. MH
03 AL 8044, which was found to be in working condition. Its key was
found with A4 Narendra Giri. Those articles were duly sealed in
separate packets by drawing a panchanama. The A2 Vijay Giri did not
possess licence under the Arms Act to possess the handgun. Thereafter,
statement of P.W. 31 HC Bhokare was recorded at the police station in
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S.C. No. 482/2008. P.W. 31 has identified all the four accused sitting in
the dock. He especially identified A2 Vijay Giri. He has also identified
all the articles including handgun Art. 5, seized from the accused during
the course of evidence.
105. In his expatiate crossexamination, the learned counsel Mr.
Pasbola for Accused nos. 1, 2, 3, 7, 11, 14 and 16 tried his best to show
as to how a fabricated panchanama was prepared by falsely implicating
these accused, alleged to be found in possession of country made
handgun Art. 5 along with other articles. In his crossexamination,
several aspects have been elicited which would rather supported the
prosecution story in minute details which have not been testified by this
witness during his examination in chief. It has been elicited that the
person who gave secret information to P.W. 31 HC Bhokare had also
given such information on somany occasions. On the basis of his such
information, the police machinery succeeded in nabbing the accused.
The informer had also intimated the time and place of the gathering of
the accused/dacoits to this witness. P.W. 31 HC Bhokare thereafter,
briefed his senior PI Sandbhor about the same and accordingly the team
proceeded to the spot. Within five minutes, they reached the spot,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 106
however, there was no discussion about the calling for panch witnesses.
PI Sandbhor asked the police personnel to carry sealing material, inter
alia directing an entry to be effected in Station diary Exh. 316 i.e. Entry
at Sr. No. 3 dated 26th April 2008 in the handwriting of police Naik
Buckle No. 26097 Mr. Pawar.
106. The crossexamination further reveals that around 2.15 p.m.
they took positions around the said hotel. Instructions were given by
P.I. Sandbhor as regards giving signal after identifying the culprit. The
secret informer was already present over there. The police personnel
were instructed to hear the talks between the dacoits. They were also
instructed to follow those persons and get information. These activities
are to be carried out by P. W. 31 Bhokare. Sr. P.I. Sandbhor asked HC
24990 to bring the panchas. The cross further reveals that three of the
accused were standing on the opposite side of the road. The remaining
two had parked their bike where the other police party was present. The
informer was 30 feet away from them i.e. near hotel Govindram
Lachhiram. The informer was not introduced to the other member of
the team. Not only that, when PI Sandbhor and PSI Joshi asked P.W. 31
about the informer, he did not disclose them about him. When P.W. 31
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Bhokare confirmed that those were the same persons who were
preparing to commit dacoity, he informed about it to PI Sandbhor by
pointing out towards those persons. When the accused persons entered
hotel Govindram Lachhiram, they were followed by P.W. 31 Bhokare and
within five minutes, he came out and told PI Sandbhor what he over
heard from them, to PI Sandbhor. Thereafter, certain suggestions were
given to this witness about distance between hotel Govindram
Lachhiram and Prakash Gold Palace, about the positions taken by the
members of the team on opposite side of the road, not giving any signal
by PI Sandbhor to catch the culprits etc. which have been denied by this
witness. P.W. 31 Bhokare admits that though he did not over power any
of the four accused, he helped them in apprehending. The fifth accused
could not be nabbed, but it appears that his name was Pintoo. In
paragraph 23 of the crossexamination, P.W. 31 Bhokare admits that the
secret informer was verymuch present on the spot and confirmed
identity of those five persons which was the important aspect to be
mentioned in the FIR,but it was not disclosed in it. Since he did not
disclose about it to PSI Joshi as FIR is not an encyclopaedia. Its
purpose is only to set the criminal law into motion and, therefore, it is
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 108
not of that importance when the defence categorically confirmed not
only the same information by informer, but also nabbing of the four
accused near hotel Govindram Lachhiram, especially A2 Vijay Giri with
a country made handgun without a scar butt. The cross also reveals
that all of them were present near hotel Govindram Lachhiram till 5.45
p.m. The information was not given to L.T. Marg though the spot was
situated within the jurisdiction of L.T. Marg police station. P.I. Sandbhor
and PSI Joshi had dictated the panchanama and also effected the search
of the accused. In paragraph 28 of the crossexamination, the defence
has again elicited from P.W. 31 Bhokare that three persons entered in
the hotel to whom he saw for the first time when they were at a
distance of 100 meters. In the hotel, he was sitting at the back side of
the table where the accused were sitting. He could hear their
conversation, but there is no detail report about it by him. This is all
about the evidence of P.W. 31 HC Bhokare which according to me
remained unrebutted by the defence.
107. Now, the another important witness is P.W. 26 Ashish Shukla
who in his oral evidence testified that, while passing along Kalbadevi
Road at the relevant time, during the last week of April 2008, he was
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called by the police to a place opposite Vitthalwadi Mandir on Kalbadevi
Road where 56 policemen were present in civil dress. They had
apprehended 34 persons. This witness was asked as to whether he
would act as a panch witness upon which he agreed. He testified that
during search of those persons whatever found was recorded
simultaneously. He testified that one of those persons had a gun with
him while others have chilly powder, knife, cell phone, cash etc. He
specifically testified about the gun with a barrel having length of about
one feet. Accordingly, a panchanama was drawn in his presence by the
police officer which was signed by him as well as another person who
was a bit aged. The police officer also signed the panchanama. He
testified that the handgun was taken out from the waist of the
overpowered person i.e. A2 Vijay Giri. He could not recollect the name
of the person from whom the gun was recovered which is obvious that
after such a long time, it cannot be expected of a normal man to
remember the name etc. He also testified that one of the police officer
had opened the gun in their presence wherein they found one bullet.
All the articles were wrapped and thereafter duly sealed. The witness
could not recollect the sequencewise search of the accused and testified
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 110
that he would identify the articles which were seized in his presence.
When the articles were shown to him, he has identified the gun and
three knives. The knives are given Art. no.10 (colly.). The witness has
identified his signature over the paper slip. He testified in detail as to
how the seizure was effected by wrapping the gun in a plastic paper and
by affixing paper slip thereon. The gun is already marked as Art. 5.
The witness has also identified cell phone and wrapper Arts. 12, 12A,
13, 13A, the currency notes Art. 14 and wrapper Art. 14A, currency
notes, driving licence and badge are marked as Art. 15 (colly.) and
wrapper Art. 15A, the bag and wrapper marked Art. 16, Art. 16A
respectively, wallet Art. 17 (colly.) and key is marked Art. 18 and
wrapper 18A, seized from the different accused. The string marked Art.
19, the wrapper containing chilly powder is marked at Art. 20. The
brown colour wallet containing cash is marked as Art. 21(colly.) and
wrapper Art. 21A. Thus, the entire panchanama has been duly proved
with the signature of this witness at Exh. 311. This witness could not
identify the person from whom the gun was seized. Even in the Court,
it seems that he expressed his inability to identify those four accused
due to lapse of time. The witness was called upon to go through the
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panchanama to refresh his memory, but he was unable to state the
name of the accused from whom the gun was seized. He was not under
pressure or threat. It can be said to be a very natural conduct of this
witness. Had he been a got up witness of the police, he would have
identified A2 Vijay Giri by name as the person from whom the handgun
was seized.
108. This witness was also extensively crossexamined by Mr.
Pasbola, the learned counsel for the accused. Here also certain aspects
have been unearthed which would rather helpful to the prosecution
than the defence. He admits that he can read Marathi. He also admits
that he could identify the articles on the basis of wrappers and paper
slips containing his signatures. His attention was drawn to Arts. 12,
12A, 13, 13A, 14, 15, 18, 19 and 20 whereupon he said that he did not
recollect whether it happened that the gun and the three knives were
first placed in the cardboard and then wrapped and the rest of the
articles were wrapped in a polythene bag. One thing is atleast clear
that the gun and knives were wrapped in his presence by the police at
the time of drawing the panchanama and were duly sealed. The cross
also reveals that one officer took search of all the four accused whose
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 112
name he did not recollect. The cross also reveals that when he saw
those four, they were on the footpath and he was on his motorcycle.
There was a chaos and, therefore, he stopped after noticing the crowd.
He volunteered to act as panch witness and one person came forward
from the crowd to act as a panch. The police officer had disclosed his
identity by showing his identity card. Before commencement of the
search, a policeman asked this witness and other panch their names and
other details. This witness was asked whether he had any police case
against him. The cross reveals that during the entire period of
preparing panchanama, neither he nor another panch or the police
official and the four accused left the place. It is elicited that he did visit
the Crime Branch Office in connection with some personal or official
work and had also visited L.T. Marg police station. This witness worked
with some Bank. The argument of Mr. Pasbola that he is not an
independent witness cannot be accepted for the reason that simply
because he had an occasion to visit the Office of Crime Branch or L.T.
Marg police station does not ipsofacto render his evidence doubtful or
inadmissible. There is no such law. Evidentiary value of a witness or a
trustworthiness can be tested during crossexamination. He withstood
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the cross. The defence has miserably failed to shake the testimony of
this witness and, therefore, there is no reason to disbelieve his evidence.
As such, the witness has duly proved the panchanama Exh. 311.
109. At this stage, the relevant evidence is with regard to the
seizure of country made handgun from the person of A2 Vijay Giri,
which the DCB,CID, CIU, Mumbai could get pursuant to the secret
information received by P.W. 31 Bhokare and during the raid conducted
near hotel Govindram Lachhiram. A perusal of the Station diary entry
Exh. 316 indicates that the information was received on 26.4.2008 and,
therefore, under the leadership of Sr. P.I. Sandbhor, rest of the police
personnel including PSI Joshi and others proceeded towards Govindram
Lachhiram Hotel at Kalbadevi Road. This entry is made at 13.45 hours.
Subsequent entries are after the completion of raid and return of
raiding party to the police station and thereafter, lodging of FIR by PW.
31 Bhokare. The evidence of P.W. 31 HC Bhokare and P.W. 26 Ajay
Shukla corroborates each other along with documents FIR Exh. 314,
panchanama Exh. 314 and station diary entry Exh. 316 and, therefore,
there is no reason to disbelieve their evidence in so far as due seizure of
the handgun Art. 5 from A2 Vijay Giri on 26.4.2008.
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110. P.W. 27 API Ajay Joshi was in the team of PI Sandbhor on
26.4.2008 while conducting the raid. PI Sandbhor informed API Joshi
about preparation for committing dacoity by the accused who were
going to gather near Govindram Lachhiram Hotel at Kalbadevi Road,
Mumbai. His evidence is in consonance with the evidence of P.W. 31
HC Bhokare. P.W. 27 API Joshi was also attached to CIU at the relevant
time. He testified that after having observed the movements of those
persons near Hotel Govindram Lachhiram and after they came out of
the hotel where they were heard conversing by P.W.31 HC Ramesh
Bhokare, they were immediately detained as per the instructions of PI
Sandbhor when they tried to scatter. He also testified about the search
of all the accused by them, production of two panch witnesses by H.C.
Kharat as per the instructions of PI Sandbhor. He also testified that PI
Sandbhor asked those four persons as to whether they desired to have
search of police officials which they declined. On being asked, the
accused gave their names. The first one was Vijay Giri. During his
search, a red colourd handgun having wooden grip was found tucked at
his left waist inside the trouser. On examination, it was found with a
live cartridge “Special 65 MM 30 Gram Amunition Factory Khadki. The
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gun was without scar butt. The length of the barrel of was 8 inch.
Likewise, he has, in detailed described the articles seized from all the
remaining accused which include cash amount, knives, mobile handsets,
chilly powder etc. This witness had dictated the panchanama to H.C.
Rane. He has duly identified the gun Art. 5. He also identified his
signature over the panchanama Exh. 311. This witness has also
identified all the four accused viz. A2 Vijay Giri, A3 Ashokkumar
Jaiswar, A4 Narendra Giri and A5 Anil Giri. He identified the
signature of Ramesh Bhokare on the FIR Exh. 314. On returning to the
office, he renumbered the C.R. as DCB, CID C.R. No. 66/2008.
111. P.W. 27 API Ajay Joshi deposed that he did not see the
informant on the spot obviously for the reason that P.W. 31 HC Bhokare
did not introduce the informer to the officer. The cross further reveals
that the first three persons came over there while the other two arrived
on a motorbike after ten minutes. He corroborated the testimony of
P.W. 31 Ramesh Bhokare in material particulars so far as the entry of
P.W. 31 Ramesh Bhokare in the hotel following the accused and
thereafter, proceeding one of them towards Prakash Jewellers and
arresting of the other accused when they came out of the said hotel. He
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testified that Prakash Gold Palace shop is about 100 meters from the
hotel Govindram Lachhiram. It has been specifically brought out in
paragraph 25 of his crossexamination that he apprehended one of
those four accused and P.I. Sandbhor along with PC Rane, Pawar and
HC Kharat overpowered the remaining three. He specifically deposed
that he apprehended A5 Anil Giri. His evidence further is in
consonance with the evidence of P.W. 31 HC Bhokare as regards calling
the panchas, inquiring about their antecedents, effecting personal
search of all the accused and drawing the panchanama accordingly. No
doubt, there is no detailed mention in the panchanama Exh. 311 as to
who specifically apprehended which particular accused and about
specific search, but that itself would not falsify the evidence of these
three witnesses which is otherwise quite cogent, trustworthy and
believable. As a matter of fact, some detailed aspects have been
unearth during cross by the defence and thereafter, questions were
asked as to why these facts have not been incorporated in the
panchanama or in the FIR. However, in substance, it can be seen that
the investigation in the said crime has been faithfully conducted by the
officer and there is no reason to concoct a story to falsely implicate A2
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Vijay Giri, A3 Ashokkumar Jaiswar, A4 Narendra Giri and A5 Anil Giri
in the said case. It is, therefore, rightly testified by P.W. 27 API Joshi
that he had faithfully recorded all the events in the panchanama as per
the order in which the proceedings were conducted at relevant time. It
has also been substantiated in cross that all the cell phones (Art. 12 to
15 colly., 18, 19 and 21 (colly.) were wrapped with cardboards though
there is no specific mention about it in the panchanama. The cross also
reveals the registration numbers of vehicles i.e. 939 and 843 in which
the raiding party had been to the spot. He testified that at the time of
registration of crime, there were only two documents viz. the statement
of P.W. 31 HC Ramesh Bhokare and the seizure panchanama. Certain
facts have not been mentioned in the station diary and the panchanama
such as the presence of fifth person over there and that the accused
were making preparation to commit dacoity.
112. It appears that P.W. 27 API Joshi inadvertently admitted that
the seizure panchanama does not disclose that the key of the
motorcycle was sealed on the spot to a question, to a question asked by
the defence counsel. However, a perusal of the panchanama Exh. 311
at page 20 in the bottom, specifically shows that the key of the
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motorcycle in a ring over which on a rubber tag the word “Honda” was
inscribed, was seized from the spot. He has denied the suggestion that
all the four accused were in his custody from 24.2.2008 onwards and a
false case has been registered against them.
113. It is pertinent to note that Sakinaka police station had
already chargesheeted seven accused persons in the case of murder of
Kamlakar Jamsandekar and, therefore, it cannot be said that it was an
undetected case. Consequently, there was no reason for the CIU which
is one of the unit of Crime Branch to fabricate evidence of the recovery
of country made handgun and gun Art. 5. It is worthwhile to mention
that when Art. 5 was recovered, it was without scar butt. So it was a
continuation of investigation conducted earlier by Sakinaka police
station and subsequently by the DCB,CID, Unit No. III, which could lay
their hands on the weapon accidentally while conducting a raid
pursuant to a secret information of preparation of dacoity by these four
accused. This particular unit of investigation had no reason to go in
conflict with investigation conducted by Sakinaka police station.
114. P.W. 3 Ramesh Balu Patil Exh. 164 is a panch witness to the
panchanama to the scene of occurrence Exh. 165 (colly.). He testified
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that on 2.3.2007, at 6.45 p.m., he acted as a panch witness along with
one Hande, a copanch, in Room No. 7 where Kamlakar Jamsandekar
was assassinated. On the request of the police, he agreed to act as a
panch witness. He gave a detailed description of the room where the
incident took place. The room has a plank door of about 6 and ½ feet
in height. To the right side of the room, there was a sliding window
admeasuring 4' x 3 and ½' At the right side of the room, there was a
staircase going upward. Below the staircase, there was a cupboard
attached to a wall. Abutting to the staircase, there was one white
plastic chair which was smeared with blood, facing towards the other
side of the room i.e. opposite the front door. Blood was spilled on the
floor. Left arm of the chair was also stained with blood and some part
of the blood had dried. There was one stool over which there was a
newspaper and a telephone was found. On the paper, a matter
addressed to Mr. Uddhav Thakare and some figure was noticed. He
categorically testified that about a distance of 2 feet from the left leg,
there was one wooden piece with handle bearing one metal piece (scar
butt). The room admeasured by 18 x 10 ft. Rest of the evidence is
about the detail description of internal room and other things such as a
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showcase for television set. He testified that from the main hall where
the deceased was assassinated, the kitchen room was visible. He also
testified that the police officers were noting down the scenario in the
room. They had collected the blood into two small bottles which were
sealed and the signatures were obtained along with copanch on paper
slips which were affixed on both the bottles. The dog squad also
arrived which left after job was over. He further testified that the police
took charge of wooden piece and placed it in a plastic bag. The plastic
bag was closed and a seal was applied. Signatures of both panchas
were obtaiend on a paper that was found on the stool. By 8.20 p.m.,
the panchanama was over. Thus, the scar butt along with other articles
were duly proved by this witness who has signed the panchanama at
Exh. 165.
115. In his crossexamination, the defence has failed to make any
dent in his natural evidence. The aspect that he was closely acquainted
with the deceased and some times used to drive his vehicle would not
ipsofact make his evidence unworthy of credence. The fact of seizure
of wooden piece, collection of blood samples as well as other articles
from the spot and sealing them by the police officer has been reiterated
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by the defence. Certain insignificant questions have been put such as
he did not go through the panchanama after it was completed and that
it was not read over to him etc. The defence has also reiterated the fact
of the photographs Exh. 153 (colly.). by putting specifically to this
witness that those were not snapped in his presence which the witness
does admit. That itself does not falsify his evidence as regards the
panchanama because the photographs were already snapped before the
body of the deceased Kamlakar was taken to the hospital by the police.
In paragraph 10 of the crossexamination, the witness fortified that he
can state where the wooden piece was lying. According to him, it was
found at a distance of two feet away ahead of the left leg of the chair.
Section 58 of the Evidence Act contemplates that facts admitted need
not be proved. The witness was again confronted with the photographs
Exh. 153 (colly.) wherein wooden article is seen at the place which was
deposed to by this witness. Since the defence has admitted the
photographs u/s. 294 of Cr.P.C., it is needless to go through the cross
examination on that point. In paragraph 15 of crossexamination, he
again reiterated that the article appearing in photograph at Sr. No. 4
which is a wooden piece with a metal about which he was informed by
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the police that it was a scar butt. He further testified that the wooden
piece had some small blood stains. He did not touch the said article nor
the police officer who wrote the panchanama. He further made it clear
that in the panchanama, none present over there touched the article.
116. Mr. Rasal, the learned counsel for Accused nols. 8, 12, 13
and 21 asked the witness about the dog squad which had arrived on the
spot. He testified that the dog squad comprised a dog and his master.
The squad was in the room for about ten minutes. Thereafter, it left the
room. Rest of the defence counsel did not crossexamine this witness.
Thus, it is quite explicit that Art. 5 which was seized by the DCB,CID,
CIU and the scar butt seized by Sakinaka police station during
panchanama, as stated above, if taken together along with the
photographs as well as the evidence of Ballistic expert, would
unerringly points out that it was the same weapon used by the A2
Vijay Giri for assassinating Kamlakar Jamsandekar. There is absolutely
no room for doubt which connects the A2 Vijay Giri, A3 Ashokkumar
Jaiswar, A4 Narendra Giri and A5 Anil Giri, the Art. 5 i.e. the handgun
and scar butt, which was used in commission of the murder. Therefore,
there is no question of fabricating or planting of scar butt by the police.
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117. It is also pertinent to note that A1 Arun Gawali alias Daddy
was already arrested on 21.4.2008 in DCB,CID C.R. No. 52/2008, who
was already in the custody of Crime Branch and a proposal for
application under the provisions of MCOC Act has been moved on
24.4.2008. Therefore, it cannot be said that the recovery of handgun
Art. 5 on 26.4.2008 by CIU was doctored only in order to falsely
implicate A1 Arun Gawali in the murder of Kamlakar Jamsandekar.
The learned SPP Mr. Thakare in his memorandum of argument has
submitted that the prosecution has only alleged that the procurement of
weapon was being an illegal act which is reflected in confession of A10
Shrikrishna alias Babu Gurav Exh. 251. Therefore, it is irrelevant
whether there is evidence to show that in fact it was used for such
purpose. In any event, possession of the said weapon itself constitutes
an offence.
118. Secondly, it is argued by Mr. Thakare that the defence has
misinterpreted that the weapon Art. 5 was incapable of firing without
scar butt Art. 1. The evidence of P.W. 13, a Ballistic expert reveals that
only one shot can be fired at a time. Even without forearm, firing was
possible, but there is possibility of bursting of barrel. The next limb of
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argument of Mr. Thakare was that concealing the weapon underneath
the clothes would depend of the type of clothes the person wearing and
unless such unlicenced arm is capable of being carried clandestinely, no
person would take risk of possessing it and such gun would not have
been procured by anyone from A8 Surendra Panchal.
119. As regards the contention of the defence about the presence
of the fifth person who ran away from the place where accused nos. 2 to
5 were arrested for the offence u/s. 399 of IPC. It is submitted that the
such topic in fact is not an issue in this case. What is relevant is to
consider as to whether the evidence of arrest, search and recovery from
the arrested accused persons is acceptable and believable. The presence
of 5th person who allegedly ran away would be germane to the trial of
offence u/s. 399 of IPC.
120. It is further argued on the point of delay in sending FIR Exh.
314. The incident took place on 26.4.2008, the FIR was registered on
the same day at 19.44 hours and relevant entry in the diary was made
at CIU, DCB, CID at 19.30 hours. The next day was a Sunday and,
therefore, copy of the FIR was sent to the Court immediately on the
next working day i.e. 28.4.2008 and, therefore, there was no delay in
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sending FIR to the Court.
121. A useful reliance has been placed by Mr. Thakare in case of
State of Maharashtra V. Siraj Ahmed Nisar Ahmed and others
reported in (2007) 2 Supreme Court Cases (Cri) 472. The Hon'ble
Supreme Court held that at the time of appreciation of evidence what
should be the duty and approach of the Court. It is held that the court
to first see whether evidence of witness read as a whole appears to have
a ring of truth. Once the said impression is formed, Court must
scrutinise the evidence, more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in the evidence, as a
whole, and evaluate them to find out whether it is against the general
tenor of the evidence given by the witnesses and whether the earlier
evaluation of the evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matter not touching the core of matter in
issue, hyper technical approach by taking sentence out of context here
or there from the evidence, attaching importance to some technical
error committed by the investigating officer not going to the root of the
matter, would not permit rejection of the evidence as a whole. On facts,
the discrepancies in statements of the two witnesses were not
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infirmities”.
122. In this case, almost all the prosecution witnesses have been
crossexamined by the defence pointing minor discrepancies of trivial
matter which are not touching the core of matter in issue, by adopting
hyper technical approach and by taking sentence out of contest here or
there from the evidence. Much weight has been attached to technical
errors committed by the I.O. which are not going to the root of the
matter. As such, the ratio laiddown by the Hon'ble Supreme Court is
clearly applicable to the present set of facts. The evidence so far as
discussed, definitely appears to have a ring of truth. The cumulative
effect of the testimony of P.W. 26 Ashish Shukla, P.W. 27 API Ajay Joshi
and P.W. 31 HC Ramesh Bhokare visavis the FIR, panchanama and
station diary entry would show that these accused have been arrested
by the police while preparing to commit dacoity and during that
process, the handgun Art. 5 could be seized. Their evidence inspire full
confidence.
123. The next important aspect would be as to how the weapon
came into existence. According to the learned SPP Mr. Thakare,
handgun Art. 5 was got prepared from A8 Surendra Panchal who is the
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brother of P.W. 8 Narendra Vasudeo Panchal Exh. 180. In that context,
it would be relevant to scan the evidence of P.W. 8 Narendra Panchal
and P.W. 11 Ramchandra alias Dhaktya Gurav. It is argued by the
learned SPP that P.W. 8 Narendra Panchal has deposed that his brother
A8 Surendra Panchal repairs guns etc. at his native place near Rajapur
who got his father's licence transferred in his name for repairing arms.
P.W. 11 Ramchandra Gurav alias Dhaktya is related to A10 Shrikrishna
alias Babu Gurav. It is argued that A10 Shrikrishna Gurav has
described in his confessional statement as to how A12 Pratap Godse in
presence of A13 Ajit Rane asked A10 Shrikrishna Gurav about the
availability of a weapon. Subsequently, the weapon was manufactured
by A8 Surendra Panchal who intimated about it to A12 Pratap Godse
telephonically upon which, A12 Pratap Godse, A13 Ajit Rane, A11
Dinesh Narkar and A10 Shrikrishna Gurav had gone to Rajapur for
ordering and fetching the weapon in question i.e. handgun Art. 5. It is
further argued that the evidence of P.W. 11 Ramchandra Gurav is
completely corroborated by the confession of A10 Shrikrishna Gurav
and A11 Dinya Narkar. Apart from that, it is further corroborated and
substantiated by unimpeachable evidence in the nature of mobile phone
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call details Exh. 426 (colly.) and Exh. 427 (colly.). As regards
confession of some of the accused and the admissibility of the same, will
be discussed at the appropriate stage.
124. The argument of the defence is that the evidence of P.W. 8
Panchal is formal as it does not disclose anything beyond the fact that
A8 Surendra Panchal has a gun repairers licence. This circumstance is
not a conclusive circumstance that A8 Surendra Panchal has procured
or manufactured any gun on the say of A12 Pratap Godse and A13 Ajit
Rane. At the best, it can be led to some kind of corroboration to the
evidence of P.W. 11 Ramchandra Gurav. The evidence of P.W. 11
Ramchandra Gurav is totally unreliable who ought to have been
arraigned as an accused rather than a witness. It is argued by Mr.
Pasbola that the evidence of P.W. 11 Ramchandra is to be taken with a
pinch of salt, for, at the instance of A10 Shrikrishna Gurav, he had
contacted A8 Surendra Panchal and thereafter, introduced A12 Pratap
Godse and A13 Ajit Rane to him. As such, since this witness had
played an active role in procuring the gun which was used in the
murder of Kamlakar Jamsandekar and, therefore, ought to have been
arraigned as an accused and not as a witness. It is further argued that
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the evidence of this witness is impeached by his own conduct as
according to him, ten days prior to his evidence, wife of A10
Shrikrishna Gurav approached him and gave him Rs.25,000/ by
threatening not to identify A10 Shrikrishna Gurav or A1 Arun Gawali.
It is argued that P.W. 11 Ramchandra had never came in contact with
A1 Arun Gawali and nobody had spoken to him of A1 Arun Gawali at
any time and, therefore, there is no question of giving the alleged
threats not to identify A1 Arun Gawali.
125. Now, the evidence of P.W. 8 Narendra Panchal and P.W. 11
Ramchandra Gurav will have to be read in the light of the arguments of
the respective counsel.
126. P.W. 8 Narendra Panchal Exh. 180 testified that A8
Surendra Panchal is his brother. Their father died in the year 1985 who
had a licence of repairing firearm. After the demise of his father, the
said licence came to be transferred in the name of A8 Surendra
Panchal. He further testified that after the arrest of A8 Surendra
Panchal, he was summoned by the police on 12.5.2008 and a statement
was recorded. He had produced a xerox copy of licence and the receipt
indicating that application for renewal of licence was submitted to the
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Competent Authority. The application bearing signature of A8
Surendra Panchal is proved at Exh. 181.
127. He was crossexamined only by the learned counsel Mr.
Rasal for Accused nos. 8, 12, 13 and 21. He admits that Exh. 181 was
not signed in his presence, but the signature over it might have been
made by his brother A9 Surendra Panchal. A perusal of Exh. 181
reveals that it is an application addressed to the District Magistrate,
Ratnagiri for renewal of the arm repairing licence along with a copy of
'Chalan' by which A8 Surendra Panchal had deposited Rs.300/ for the
renewal of the licence on 18.12.2007. This evidence restricts only to
the extent that the accused A8 Surendra is permitted to repair firearms
and not manufacture of unauhthorsed firearms.
128. P.W. 11 Ramchandra J. Gurav alias Dkaktya Exh. 186 has
deposed that he is an agriculturist by profession. He has a wife and
three children. After the marriage, he was doing the business of
firearms at village Kharepatan and Rajapur. A10 Shrikrishna Gurav is
his cousin who drives an auto rikshaw for his livelihood in Sakinaka
area. P.W. 11 Ramchandra Gurav intermittently visited Mumbai and
used to stay with A10 Shrikrishna Gurav. A10 Shrikrishna is an active
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member of Akhil Bhartiya Sena of which A1 Arun Gawali is the head.
In the year 2003 and 2004, A10 Shrikrishna alias Babu Gurav was
serving at Powai where he had also secured a job for P.W. 11
Ramchandra. During those days, P.W. 11 Ramchandra was staying at the
house of his anunt Draupadi i.e. the mother of A10 Shrikrishna Guarav.
He left the job and went back to his village, however, he continued
visiting Mumbai on and often and used to stay at his aunt's house. He
further testified that in the month of May, 2006, when he had been to
Mumbai, A10 Shrikrishna Gurav alias Babu took him to his friend's
travel office viz. Amit Travels at Kandivli and introduced to A12 Pratap
Godse and A13 Ajit Rane. There was one lady, but P.W. 11 Ramchandra
does not remember her name. P.W. 11 Ramchandra identified A10
Shrikrishna alias Babu Gurav and A13 Ajit Rane from amongst the
other accused sitting in the dock. At that time, A12 Pratap Godse was
not brought from the jail. He testified that A12 Pratap Godse enquired
with him whether a gun could be available at his village, upon which,
P.W. 11 Ramchandra informed him that he will go to the village and
enquire about the same. This conversation took place in the presence of
A13 Ajit Rane and A10 Shrikrishna Gurav. A12 Pratap Godse gave his
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phone number as well as the phone of A10 Shrikrishna on a piece of
paper and asked him to contact as soon as the gun will be made
available. P.W. 11 Ramchandra left for his village. After enquiry, he
came to know that a gun would be available at village Vilaye. P.W. 11
Ramchandra went to the said village where he had some acquaintance.
One of them had asked him to approach A8 Surendra Panchal who is in
profession of repairing guns. P.W. 11 Ramchandra went to his home and
enquired as to whether he could provide a gun. P.W. 11 Ramchandra
has also identified A8 Surendra in the Court. A8 Surendra agreed to
provide a gun and, therefore, P.W. 11 Ramchandra contacted A10
Shrikrishna on phone from Kharepatan and informed him about the
same. A10 Shrikrishna replied that he would come to the village
within 45 days.
129. The evidence further reveals that after 45 days, A10
Shrikrishna Gurav, A11 Dinesh Narkar, A12 Pratap Godse and A13
Ajit Rane came to his village in a private vehicle. They first came to
hotel Madhuban at Kharepatan. A10 Shrikrishna alone came to the
house of P.W. 11 Ramchandra and took him to hotel Madhuban where
A12 Pratap, A11 Dinesh Narkar, A13 Ajit Rane were present. All of
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them thereafter, proceeded to village Vilaye in the said vehicle. They
met A8 Surendra. P.W. 11 Ramchandra introduced all of them to A8
Surendra. The evidence further reveals that A8 enquired with them as
to what kind of gun they were asking for, upon which, A12 Pratap gave
a sketch of a gun to A8 Surendra. A8 Surendra told them that the gun
would cost Rs.6000/. Thereafter, A12 Pratap told A8 Surendra that
they would come on the next day. All of them came back to
Kharepatan. On the next day, at about 10 a.m., all of them came to
Hotel Madhuban from where they went to the house of A8 Surendra at
Vilaye. Since A8 Surendra was not at home, A12 Pratap contacted
him on a phone number which was given by his family member. A8
Surendra asked them to go to hotel Madhuban at 5 p.m. Accordingly,
all of them went to hotel Madhuban where A12 Pratap paid Rs.3000/
as an advance to A8 Surendra. The balance was agreed to be paid
after the receipt of the gun. A8 Surendra told A12 Pratap that it
would take some time to fetch the gun and asked them to come after
two months. It was agreed that P.W. 11 Ramchandra would remain in
touch with A8 Surendra on phone to ascertain whether the gun was
ready. P.W. 11 Ramchandra thereafter, informed A10 Shrikrishna and
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A12 Pratap about the same. After 23 months, the gun was ready and,
therefore, P.W. 11 Ramchandra informed about it to A10 Shrikrishna.
A10 Shrikrishna informed P.W. 11 Ramchandra that they would come
after 45 days.
130. P.W. 11 Ramchandra has further deposed that accordingly,
A10 Shrikrishna Gurav and A11 Dinesh Narkar came to the village on
the day of 'Gokulashtami'. They reached village Vilaye of A8 Surendra
in an auto rikshaw. A10 Shrikrishna paid the balance of Rs.3000/ to
A8 Surendra. A8 Surendra delivered the gun to A10 Shrikrishna.
A10 Shrikrishna asked A8 Surendra to test the fire. As the cartridgs
were not available with the A8 Surendra at his home, they came to
Kharepatan where A8 Surendra arranged for some cartridges which
were of red colour. A8 Surendra gave those cartridges to A10
Shrikrishna who in turn paid A8 Surendra Rs.300/. Since A11 Narkar
wanted to test the cartridges, all of them went to nearby jungle where
A8 test fired the cartridges. A11 Narkar thereafter, approved the gun.
A8 Surendra left for his village while A11 Narkar and A10 Shrikrishna
left the village after wrapping the gun Art. 5 in a leaves of elephant's ear
(Aloo). P.W. 11Ramchandra has also described the gun which
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according to him, was one and half feet in length. He has identified the
gun Art. 5 in the court. He specifically testified that one wooden part
below the barrel of the gun is missing. When the wooden piece Art. 1
was shown to him, it was identified, which was the very piece and
which was part of the gun. He has also identified A11 Narkar and A12
Godse in the Court.
131. P.W. 11 Ramchandra is also known as “Dhaktya” which
means youngest. He admits that he was enquired with by the Crime
Branch police officer at his village and also asked him whether he had
secured a gun for some one else before. He denied the suggestion that
procuring a gun for someone is a crime and further made it clear that
he never procured a gun for anybody.
132. P.W. 11 Ramchandra during the course of his cross
examination by the learned counsel Mr. Pasbola, volunteered that ten
days before his evidence, wife of A10 Shrikrishna had been to his
residence with some unknown persons who paid him Rs.25,000/ for
not supporting the prosecution. Those three persons including the wife
of A10 Shrikrishna threatened him of dire consequences if he identifies
A10 Shrikrishna and A1 Arun Gawali in the court. He testified that
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 136
the police officer who had been to serve the summons of this Court had
accompanied him to Kankavali where P.W. 11 Ramchandra had lodged a
complaint at the said police station. He had also deposited the amount
of Rs.25,000/ paid to him by the wife of A10 Shrikrishna. Because of
the said incident, he was frightened and, therefore, asked the police
officer to accompany him to Mumbai.
133. His crossexamination indicates that since his complaint was
not recorded at the police station of Kharepatan where he resides, he
lodged it at Kankavali which is 35 kilometers from village Kharepatan.
He deposed that there was a gap of about 810 days between the visit of
wife of A10 Shrikrishna and the visit of the police for service of
summons. He further testified that A10 Shrikrishna's wife alone had
been to his house. She took him to the hotel Madhuban where those
unknown persons were present who had thrusted the amount in his
pocket. However, in the next breath, P.W. 11 Ramchandra admits that
he did not visit the police chowky of his village to lodge complaint
about the visit of A10 Shrikrishna's wife. He candidly admits that he
had never been to the police chowky to lodge complaint against
anybody. He does not remember as to when he had been to the police
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 137
chowky with other persons as according to him, he accompanied the
others to lodge a complaint at the police chowky of his village. He had
not informed about the said incident to his brother, wife though all of
them reside jointly.
134. According to P.W. 11 Ramchandra, on 12.11.2010, police
had been to his residence at about 11 a.m. They reached police station
Kankavali at about 12 noon. P.W. 11 Ramchandra, at the time of
evidence, tendered a copy of complaint lodged by him Exh. 188. This
is a very important document brought in by the witness during his
crossexamination itself which does indicate that an attempt was made
by A1 Arun Gawali and A10 Shrikrisha to influence him before
adducing evidence. This is a relevant fact in view of Sec. 8 of the
Evidence Act. The said complaint dated 12.11.2010, in short, indicates
that he is a witness in case of the murder of Shivsena Corporator
Kamlakar Jamsandekar, as weapon used in the commission of offence
was manufactured by A8 Surendra to whom this witness had first
approached through A10 Shrikrishna and his friend. The complaint
further reveals that 15 days before his evidence, wife of A10 Babu
Gurav had been to his house at Kankavali and took him out of the house
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 138
under the pretext of some important talk. His son Yogesh accompanied
him. They reached near hotel Madhuban where a red coloured Tata
Sumo was parked. There were three persons, aged about 55, 45 and 46
years old, having typical accent of Mumbai. Wife of A10 Shrikrishna
asked P.W. 11 Ramchandra to depose false in the Court by not
identifying her husband A10 Shrikrishna. Thereafter, the three
unknown persons threatened him of dire consequences if he identifies
A1 Arun Gawali and A10 Shrikrishna in Court and thrusted the bundle
of Rs.25,000/ in the denomination of Rs.500/ notes each, in his
pocket. After extending threats, all of them left for Mumbai. A crime
bearing No. 467/2010 u/s. 214, 506 of IPC was registered on the same
day. The police officer of police station Kankavali had also seized the
amount of Rs.25,000/ produced by this witness which gives details of
all the currency notes of Rs.500/ denomination. This is a relevant fact
in the given circumstances as even the learned counsel for the accused
Mr. Pasbola substantiated the important aspect during further cross
examination of P.W. 11 Ramchandra. Attention of this witness is drawn
to the portion marked 'A' in his complaint Exh. 188 wherein he has
stated that 15 days prior to his evidence, wife of A10 Shrikrishna
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 139
approached him. This is not a material contradiction, for, the fact
remained that wife of A10 and some persons had approached this
witness to influence him. The crossexamination further indicates that
the contents of Exh. 188 had been recorded as per his say. The amount
of Rs.25,000/ had been kept by him in a bag without disclosing the
same,in such a way that noone get any idea thereof. Looking to the
background of the accused and the role of this witness, it is quite
obvious in a normal circumstance that he had not disclosed the same to
any of the family members probably he did not want to scare them. He
also testified that he did not note down the Tata Sumo's registration
number. He also deposed that his son who is 18 years old was with him
when wife of A10 Shrikrishna had been to his home. He also testified
that after 5.5.2008, neither A10 Shrikrishna nor his family members
had been to him. The crossexamination further reveals that when
those three persons asked P.W. 11 Ramchandra not to identify A1 Arun
Gawali before the Court, he told them that he had never seen A1 Arun
Gawali. On 3.5.2008, when the police had been to his house, he came
to know that the murder had been committed by the said weapon. He
also testified that he had enquired with the other accused as to why
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 140
they required the gun. He would not have helped them had he been
aware that the gun was asked for committing an offence. He admits
that one cannot procure a country made gun even with a licence. He
further deposed that in the office of Amit Travels, when there was a
discussion on the subject of gun, he was surprised. However, when he
was asked, he immediately replied that he would see in his village
whether the gun can be made available.
135. Certain minor omissions are brought on record which are
not at all material. It is elicited in crossexamination by the learned
counsel Mr. Pasbola that this witness contacted A10 Shrikrishna alias
Babu Gurav on his cell phone on 45 occasions. The chit bearing phone
number which was given to him at Amit Travel's Office, has been
destroyed by this witness after he gave those numbers to the police and
when he learnt that those people were involved in the offence of
murder. He deposed that the police did not ask him about the said chit,
however, for giving those phone numbers to the police, he referred the
chit. He did not mention anything to that effect. It is specifically
brought out that those two numbers were in the handwriting of A12
Pratap Godse and A10 Shrkrishna Gurav. Thus, the fact has been
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 141
substantiated even during crossexamination that in order to procure
the weapon, A12 Pratap and A10 Shrikrishna had given these numbers
so that they could be contacted. There is no mention of the chit in his
statement u/s. 161 of Cr.P.C. , but statement does indicate that A12
Pratap and A10 Shrikrishna gave their mobile nos. 9223202133 which
is of A12 and 9819257750 which is of A10 Shrikrishna. He also
deposed that he used to contact A8 Surendra on his telephone from
other telephone booth. He could not give the registration number of
the vehicle in which accused A8 Surendra and A10 Shrikrishna had
been to his village for obtaining the gun. It is pertinent to note that P.W.
11 Ramchandra has categorically testified in paragraph 6 of his
evidence that A10 Shrikrishna and A11 Narkar had been to the village
on the day of 'Gokulashtami'. This fact has been substantiated by the
prosecution which drew my attention to the calender for the month of
August 2006 which shows on 16th August 2006 (Wednesday) it was the
day of 'Gokulashtami' i.e. 'Janamashtami'. This fact further gets
corroborated from the mobile call record between A12 Pratap and A8
Surendra. On 15th August 2006 at about 16:13:47, A12 Pratap from
cell No. 9223202133 had called A8 Surendra on his cell no.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 142
9224770420. The calling number, cell I.D. address is shown as 19441
Junction of AndheriGhatkopar Road and Jamuneshwar Mahadeo
Mandir Road, Asalfa village, whereas the caller number, cell I.D. address
i.e. the mobile of A8 Surendra is shown to be not in Mumbai circle
which means he was at his village. This aspect has been substantiated
by P.W. 35 Shekhar Palande Exh. 431 who is working with Tata
Telecommunication Services Maharashtra Ltd. as a Assistant Manager at
Turbhe and had produced the forms of three mobile numbers i.e. the
first no. 9223202133 which is registered in the name of A12 Pratap
Tukaram Godse, which also gives ESN number which means equipment
serial number of the handset as 3D60BD9D. This handset, according to
P.W. 35 has an inbuilt sim card. This has been duly proved by him
through the document Exh. 432. He also testified that second
application is in the name of Ravindra Panchal who is the real brother
of A8 Surendra, having Cell No. 9224770420. The application form is
annexed with copy of PAN card of Ravindra who is the real brother of
A8 Surendra Vasudeo Panchal which is a relevant fact in the given
circumstances and establishes that this cell number was being used by
A8 Surendra from his village. The said document is proved at Exh. 433
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 143
(colly.). P.W. 35 Shekhar Palande is an independent witness from whose
oral as well as documentary evidence, it has been conclusively proved
that the persons holding those two mobile numbers were in contact
with each other about nine occasions and that the cell site ID No. 28402
was not available because the cell ID was from out of Mumbai. The
following chart would make the picture clear about the time, date and
duration of the conversation between A12 Pratap and A8 Surendra:
Calls during the period of ordering and fetching the weapon (Article 5)
NOTE : 'B' stands for EXHBIT No. 427 Colly.
Date Time Call Duration
Calling No Calling No Cell
ID address
Called No Called No Cell ID address
Page No
1 2 3 4 5 6 7 8
27/07/2006 115114 28 9223202133 (Pratap Godase) ( ESNNO - 3d60bd9d )
1922 (Saki Vihar Road, Near L & T, Powai, Andheri East, Mumbai 400 072)
9224770420 (Surendra Panchal)
28402(Not in Mumbai Circle)
B-163
07/08/2006 125103 3 9224770420 (Surendra Panchal)
28402(Not in Mumbai Circle)
9223202133 (Pratap Godase)( ESNNO - 4074989 )Subscriber changed mobile
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,
B-143
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 144
equipment. Asalpha village, Mumbai-84)
07/08/2006 125606 26 9224770420 (Surendra Panchal)
28402(Not in Mumbai Circle)
9223202133 (Pratap Godase)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD, Asalpha village, Mumbai-84)
B-143
07/08/2006 125717 67 9223202133 (Pratap Godase)
1922 (Saki Vihar Road, Near L & T, Powai, Andheri East, Mumbai 400 072)
9224770420 (Surendra Panchal)
28402(Not in Mumbai Circle)
B-165
14/08/2006 145632 48 9223202133 (Pratap Godase)
4929 (Junction of M V Road and Baji Pisalkar Marg,Sakinaka Junction,Sakinaka,Andheri -East,Mumbai-59)
9224770420 (Surendra Panchal)
28402(Not in Mumbai Circle)
B-167
14/08/2006 153203 51 9223202133 (Pratap Godase)
1938 (A-Wing situated at Sir M. V. Road, Andheri East,
9224770420 (Surendra Panchal)
28402(Not in Mumbai Circle)
B-167
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 145
Mumbai 400 069 )
14/08/2006 211353 59 9223202133 (Pratap Godase)
16914 (77 A & B, Nehru Road, Vile Parle East, Mumbai 400 057)
9224770420 (Surendra Panchal)
28402(Not in Mumbai Circle)
B-167
15/08/2006 131316 165 9223202133 (Pratap Godase)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
9224770420 (Surendra Panchal)
28402(Not in Mumbai Circle)
B-167B-169
15/08/2006 161347 42 9223202133 (Pratap Godase)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
9224770420 (Surendra Panchal)
28402(Not in Mumbai Circle)
B-169
136. The aforesaid chart shows the connections between A12
Pratap and A8 Surendra on 27.7.2006, 7.8.2006, 7.8.2006, 14.8.2006,
14.8.2006, 15.8.2006 and 15.8.2006. Those were the calls when the
handgun Art. 5 was fetched from A8 Surendra. The respective mobile
number as well as cell ID locations of the calling person and the caller
person has been established corroborating the confessional statements.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 146
This has already been discussed by me in the preceding paragraphs.
137 P.W. 35 Palande has duly proved the call detail record Exh.
426 (colly.) P.W. 35 Palande has further testified that in Column No. 8
of Exh. 426 (Colly.), some of the places are blank which occurs if there
is network of other than Tata. If the caller and receiver both mobile
handsets are of Tata, then the record reflect all the entries in the call
detail record (CDR). In such cases, location of both caller and receiver
are reflected in CDR. His employer, Tata Company stored ID which
locates the area of caller and receiver. The witness has duly proved a
certificate at Exh. 435 which is prepared by him, indicating that he
being the Manager and Vigilance Officer of Tata Teleservices, certified
that the CDMA cell ID listed along with cell site addresses in respect of
his company for Mumbai Circle is enclosed herewith on a CD. All these
records are lawfully maintained by the company in the normal course of
its business. The data of the cell site contained in the CD was existing
in the year 2003.
138. The CDR is drawn by this witness from the master computer.
I shall discuss the evidence of P.W. 35 in detail while dealing with
confessional statements of the accused.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 147
139. Coming back to the evidence of P.W. 11 Ramchandra,
particularly in paragraph 21 of his crossexamination, it has come that
on his first visit, A8 Surendra did not enquire with him as to why the
gun was required. It appears from the entire evidence that A8
Surendra was not at all aware as to why A12 Pratap, A13 Ajit or A10
Shrikrishna required the weapon Art. 5. He being a repairer of arms
ought to have enquired as to why the weapon was required by them.
The licence was not given to him by the District Magistrate for the
purpose of manufacturing unauthorised and illegal arms. Nevertheless,
the fact remains that he was not aware as to why the said weapon got
manufactured from him. The cross further reveals that A8 Surendra
even did not enquire with P.W. 11 Ramchandra whether he had a licence
to possess a gun. He did not inform A8 Surendra as to why the gun
was required. Even on the second visit, A8 Surendra was not made
aware by P.W. 11 Ramchandra or by the A12 Pratap, A11 Narkar or
A10 Shrikrishna as to why the weapon was required. The statement of
P.W. 11 Ramchandra u/s. 161 of Cr.P.C. does not indicate the description
of the weapon, but it does indicate that the said handgun was procured
by them from the A8 Surendra. This is also not a material omission as
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 148
brought out by the defence in paragraph 22 of the crossexamination.
However, in the same paragraph, it has been substantiated that the gun
was shown to P.W. 11 Ramchandra by the police at the police station
when he noticed that scar butt Art. 1 was missing from the gun, which
was a wooden piece below the barrel. Rest of the crossexamination is
in the form of what the police did or did not do while recording the
statement of this witness, which according to me, is not at all material.
140. He denied the suggestion that complaint Exh. 188 was
already prepared by the police over which his signature was obtained at
Kankavali police station. He also denied that the sum of Rs.25,000/
had been provided by the investigating agency or being delivered by
him at the Kankavali police station. This suggestion merits to be
laughed at and wept over at one and the same time, for, no police
officer investigating such a sensitive matter would dare to do such an
act which might jeopardize ones career. It is not specifically suggested
by the defence as to which officer of the Crime Branch was instrumental
in providing the sum of Rs.25,000/ to P.W. 11 Ramchandra for delivery
it at the Kankavali police station.
141. Learned counsel Mr. Rasal for Accused nos. 8,12,13 and 21
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 149
asked P.W. 11 Ramchandra about the exact dimensions of the office of
Amit Travels which he could not give. It is not even expected of a
witness to give exact dimensions as in the normal course, noone would
measure dimensions by using a tape. The cross further reveals that as
to when he was taken to the office of Amit Travels by the police to
which he answered, in the month of May, 2006, he was taken there at
about 6.30 p.m. He deposed that he visited the office of Amit Travels
along with A10 Shrikrishna on 2nd June 2006. Since he was not
informed that for what purpose the gun was required, he did not flatly
refused to assist them in procuring the gun.
142. The evidence of P.W. 11 Ramchandra, P.W. 35 Palande
further finds support from the confession of A10 Shrikrishna Exh. 251
and A11 Narkar Exh. 264. A10 Shrikrishna has not retracted his
confession immediately before the Chief Metropolitan Magistrate where
he was produced. A11 Narkar, however, has retracted his confession
before the CMM. As already stated in the preceding paragraphs, I shall
discuss about the confessional statements of the accused in the
subsequent paragrpahs.
143. Suffice it to say at this juncture that in his confessional
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 150
statement recorded by P.W. 19 Dnyaneshwar Phadtare, DCP by following
due procedure in the second part, A10 Shrikrishna had stated that in
the month of May 2006, when A12 Pratap and A13 Rane informed
him that they need a gun for threatening the builders to collect
extortion money, A10 Shrikrishna took his cousin P.W. 11 Ramchandra
who is a resident of Kharepatan, District Sindhudurg to the office of
A12 Pratap and A13 Rane where he promised to arrange for a gun.
A10 Shrikrishna, A12 Pratap had given their respective mobile
numbers to P.W. 11 Ramchandra alias Dhaktya Gurav, which are
9819251750 and 9223202133. After 45 days, P.W.11 Ramchandra
informed on phone that they would get a gun. Accordingly, A10
Shrikrishna, A8 Surendra, A11 Narkar and A12 Pratap along with
driver Raja had been to village Vilaye at Rajapur Taluka in a Tata Sumo
jeep. All of them were introduced by P.W. 11 Ramchandra to A8
Surendra. A12 Pratap drew a sketch of the gun and showed it to A8
Surendra who agreed to manufacture a gun as per the said sketch in Rs.
6000/. On the next day, when they again approached A8 Surendra, he
was not at his home and, therefore, A12 Pratap contacted A8 Surendra
on mobile No. 9224770420 which was registered in his brother's name,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 151
as discussed hereinabove. At that time, A12 Pratap had paid an
advance of Rs.3000/ to A8 Surendra. The gun was ready in the month
of August 2006. This information was given by P.W. 11 Ramchandra to
A10 Shrikrishna who in turn informed about it to A12 Pratap and A13
Rane. On the same day, A10 Shrikrishna, A11 Narkar along with P.W.
11 Ramchandra approached A8 Surendra at his village in an auto
rikshaw and paid him a balance of Rs.3000/. They came to village
Kharepatan along with A8 Surendra. A8 Surendra purchased five red
coloured cartridges for which A10 Shrikrishna paid Rs.300/ and
thereafter, in a jungle, one cartridge was test fired by A8 Surendra in
order to show that the weapon was in a working condition. On the very
next day, it being 'Janamahtami', A10 Shrikrishna, A11 Narkar along
with the said gun and four cartridges came to Mumbai by a bus.
144. A11 Narkar, in his confessional statement Exh. 264 which
has been duly recorded by P.W. 20 DCP by following a due procedure,
had stated in second part that in the month of May, 2006, he along with
A12 Pratap, A10 Shrikrishna and A13 Rane had been to Kharepatan
in a Tata Sumo jeep and from there, along with relative of A10
Shrikrishna, they went to village Vilaye and met A8 Surendra. A12
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 152
Pratap paid Rs.3000/ as an advance for manufacturing of a gun. In the
month of August, 2006, at the behest of A12 Pratap, he again visited
village Vilaye along with A10 Shrikrishna and met A8 Surendra. The
gun was taken into custody and they came to Kharepatan. A8
Surendra accompanied them. Since it was the day of 'Janamashtami',
on the next day, they came back to Mumbai along with the gun which
was wrapped in the leaves of elephant's ear. The said gun and
cartridges were given by A10 Shrikrishna and A12 Pratap.
145. The unrebutted testimony of P.W. 11 Ramchandra which has
been corroborated in material particulars by the confessional statement
of A10 Shrikrishna Gurav which further finds full support from the
unimpeached evidence of P.W. 35 Palande who by the call detail records
has established the continuous connection between A12 Pratap and A8
Surendra, coupled with the confession of A11 Narkar, there is hardly
any room for doubt that the weapon was procured by the A12 Pratap
and A13 Rane from A8 Surendra with the active assistance of A10
Shrikrishna who contacted his cousin brother P.W. 11 Ramchandra at
village Kharepatan. Point no.2 is, therefore, answered in the affirmative.
146. POINT NOS. 3 TO 8: Since all these points are interlinked,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 153
it would be convenient to discuss the said points simultaneously.
147. Mr. Sejpal, the learned counsel for Accused nos. 4, 5 and 10
admitted that the deceased Kamlakar Jamsandekar died a homicidal
death, but according to him, the accused nos. 2 to 5 are not responsible
for the same. His arguments are mainly in tune with the arguments
advanced by learned counsel Mr. Pasbola, on all the aspects. So far as
P.W. 4 Abdul Rehaman alias Addu Exh. 151 is concerned, it is the
argument of respective learned counsel that he ought to have been
made as an accomplice as he knew the conspiracy. It is submitted at the
bar that statement of P.W. 4 Addu was recorded for the first time on
7.6.2008. His evidence is completely artificial as his conduct is quite
suspicious because the moment he learnt about the murder of Kamlakar
Jamsandekar, while watching the news on television, he escaped to
Vashi. The learned counsel Mr. Pasbola has candidly admitted that
accused nos. 2 to 5 are closely related to each other which has further
been confirmed by the accused themselves. It is submitted that
deceased Kamlakar was a Municipal Corporator of the area and,
therefore, there was no need for P.W. 4 Addu to point out his house to
A4 Narendra Giri and A5 Anil Giri. It is also argued that for 14
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 154
months, P.W. 4 Addu remained silent about the incident and did not
narrate it to police which according to the defence, creates doubt on the
credibility of the evidence of this witness. This witness is only propped
to show connection of A12 Pratap and A13 Rane against Accused nos.
2 to 5 so as to bolster the prosecution case and, therefore, evidence of
P.W. 4 Addu is required to be discarded. It is further argued that P.W. 4
Addu was trying to save his own skin as he had apprehended his arrest
by the police. He is equally guilty as that of other accused though he
pleaded ignorance. The defence has branded him as a coconspirator. It
is argued by the learned counsel Mr. Pasbola that the law regarding the
conspiracy is well settled. People join conspiracy and get out of a
conspiracy has different stages. Each conspirator does not know the
role of the other conspirator and yet a person would be liable for
conspiracy once he agrees to do an illegal act or an legal act by illegal
means. If the prosecution case has to be believed, then according to the
learned counsel Mr. Pasbola, P.W. 4 Addu ought to have been arraigned
as an accused and not as a witness.
148. Per contra, learned SPP Mr. Raja Thakare in his
memorandum of arguments stated that P.W. 4 Addu has not only
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 155
established the togetherness of accused nos. 2 to 5, but also deposed as
to how he had shown them the deceased Kamlakar Jamsandekar and
his house, at the instance of A12 Pratap and A13 Rane with whom he
was working as a office boy. P.W. 4 Addu used to wash the cars of the
Travel agency of A12 Pratap and had also worked as a helper in the
election of A13 Rane. According to SPP Mr. Thakare, P.W. 4 Addu is a
gullible, illiterate, young boy, was given some work by his master which
he did as was duty bound without expecting any benefit from them and
without aware of the well planned conspiracy of A12 Pratap and A13
Rane of elimination of deceased Kamlakar Jamsandekar. The nature of
work assigned to him in normal course would not create any suspicion
or malafide. There was no reason for A4 Addu to suspect as to why he
was asked to point out the house of the deceased to accused nos. 2 to 4.
He also rightly argued that the subsequent conduct of A4 Addu not
residing in the house and going away to Vashi is a natural conduct of an
innocent person when he came to know that some wrong has been
committed by him inadvertently though in fact, he is not at all
concerned with or part of the conspiracy. His conduct was natural. It is
also quite improbable that he on his own should have approached the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 156
police to apprise them with the facts.
149. Now, the evidence of P.W. 4 Abdul Rehaman alias Addu
indicates that he is 18 years of age and studied up to 5th standard. A12
Pratp is the friend of his brother Shafiq who used to visit his house. P.W.
4 Addu has identified A12 Pratap. His evidence further indicates that
A12 Pratap is in travel business in the name and style as “Amit Travels”
at Chandivali Studio where he works as a cleaner of vehicles. A13
Rane is the partner in the said business. P.W. 4 Addu has identified A13
Rane in the court. He used to fetch tea for A13 Rane. Kamlakar
Jamsandekar was the Corporator of that area who belonged to Shiv
Sena. A13 Rane had contested the elections of Municipal Corporation
in the year 2007 against deceased Kamlakar. A13 Ajit Rane was a
candidate of Akhil Bhartiya Sena who lost the election. P.W. 4 Addu got
acquainted with A10 Shrikrishna during the election campaign. A10
Shrikrishna used to attend the office of A13 rane during the elections
of Municipal Corporation. P.W. 4 Addu has further testified that after
the election of 2007, A12 Pratap asked him to do some work for him.
On being asked about the nature of work, A12 Pratap told A4 Addu
that he should point out Kamlakar Jamsandekar and his residence to his
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 157
men. This conversation took place in the presence of A13 Rane. It
appears that the question was objected to by the defences on the
ground, it being a leading question. However, it was permitted to ask
since it was not a leading question as the witness was asked whether
anybody else was present during the said talk. P.W. 4 Addu agreed and
accordingly on the next day, P.W. 4 Addu went to the office of A12
Pratap and there he noticed four Hindi speaking persons. One of them
was known as 'Kandi' A4. A10 Shrikrishna Gurav gave a key of
motorcycle to one of those four persons. Thereafter, A4 Narendra Giri
alias Kandi, P.W. 4 Addu and one more person went to Asalfa village on
the said motorcycle. They stopped near a Pan stall on Link Road.
Thereafter, they walked towards the chawl where Kamlakar
Jamsandekar used to reside. It was noticed that Kamlakar was not at
home. After some time, P.W. 4 Addu noticed Kamlakar Jamsandekar
alighting from an autorikshaw. He pointed out Kamlakar to A4 Kandi
and the other accused. P.W. 4 Addu informed them that Kamlakar sports
Lal Tikka on his forehead. Thereafter, they came back to the office of
Amit Travels where he informed A12 Pratap to have shown Kamlakar
and his residence to A4 Narendra alias Kandi Giri and the other
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accused. He further testified that 1015 days thereafter, when he was at
the house of his friend Bilal, there was a news on television that
Kamlakar had been murdered.
150. Before his crossexamination, P.W. 4 Addu identified A4
Kandi and A5 Anil as the one to whom the key of bike was handed
over. He also identified A10 Shrikrishna Gurav. He could not identify
the remaining two accused.
151. In the cross by the learned counsel Mr. Pasbola he testified
that he got frightened and thought that the police might arrest him. He
left for Vapi in Gujarat by falsely informing his mother that he got a job
and fetch a salary of Rs.7000/ per month, over there. He went to Vapi
and stayed with his brother Shafiq for a week. His cross further reveals
that he came to know from his mother about the arrest of A12 Pratap
and A13 Rane by Sakinaka police station. It did not come to his mind
that after the arrest of A12 Pratap and A13 Rane that he should
approach the police and inform them that A12 Pratap had asked him to
keep watch on deceased Kamlakar. He volunteered that he did not
approach the police as he was frightened. Despite searching cross
examination, the defence could not rebut the testimony of this witness.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 159
152. Certain questions were asked as regards his interrogation by
the police attached to the Crime Branch, Unit III. It reveals from the
crossexamination that he was taken to some court by the police for
recording his statement. He testified that no police officer attached to
the Crime Branch enquired with him whether he was willing to make
any statement before the Magistrate. He denied the suggestion that he
was being taken to the Magistrate's Court for recording his confessional
statement. However, he admits that the Magistrate questioned him as
to why he wants to make a confession upon which, he replied he
wanted to state the truth only. The witness, perhaps, looking to his
education and background, was not aware what does a confession
means. He wanted to state the truth. He denied that he was keeping
watch on the movements of Kamlakar Jamsandekar. In paragraph 10 of
his crossexamination, the defence has elicited from P.W.4 Addu that a
day before he pointed out the deceased to A4 Kandi and other persons,
he was asked to point out the deceased, but he did not enquire with
A12 Pratap as to why he should point out the deceased to A4 Kandi
and others. Even after showing the residence of deceased Kamlakar, he
had been visiting the office of A12 Pratap till he watched the news of
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murder on television. P.W. 4 Addu had seen all the accused viz. accused
nos. 2 to 4 together for the first time at the office of A12 Pratap and
thereafter, identified all of them for the first time in the court. It is
brought out in cross that earlier P.W. 4 Addu was prosecuted for an
offence of rape, but he testified that it was a false charge and therefore,
he was in jail for 35 days. That itself will not falsify his evidence which
remained unrebutted. There is no reason for this witness to depose
falsely against A2 Vijay Giri, A3 Ashok Jaiswar, A4 Narendra alias
Kandi Giri and A5 Anil Giri, at the behest of the Crime Branch. His
evidence appears to be natural, believable and trustworthy. The
arguments of learned counsel Mr. Sejpal and Mr. Pasbola are
unacceptable for the reasons given hereinabove. I say so because the
defence had also substantiated certain aspects during cross
examination. The cross further indicates that he was the only person to
whom the work of showing the house of Kamlakar Jamsandekar was
assigned by A12 Pratap. In paragraph 13 of the crossexamination, the
fact that at about 12 noon or 1 p.m., he had accompanied with A4
Kandi and other accused to show Kamlakar Jamsandekar and his
residence at the relevant time has been reiterated. None of the accused
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went to the house of Kamlakar at that time. He also did not visit the
house of Kamlakar to find out as to whether he was at home. It is
testified by him that whenever Kamlakar used to be at his residence, the
door of his house used to remain open. This is because of his
acquaintance of the area for 45 years.
153. Certain minor omissions have been brought on record which
do not affect the credibility of this witness and that the said omissions
are not at all material in the light of the fact that the defence has not
disputed that he was working as a office boy of A12 Pratap and the fact
that he accompanied A4 Kandi and other accused to point out the
deceased and his residence. If the statement of P.W. 4 Addu u/s. 161 of
Cr.P.C. visavis his evidence on oath is considered, the said omissions
can verywell said to be minor omissions.
154. During crossexamination by learned counsel Mr. Rasal for
Accused nos. 8, 12, 13 and 21, P.W. 4 Addu admits that during any
function of Shiv Sena, hoardings bearing photographs of Corporator are
displayed. The hoardings were also displayed during elections of 2007
with the photographs of deceased Kamlakar Jamsandekar. The said
suggestion has been given in order to point out that it was needless to
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 162
show the house of the deceased to the assailants. However, it cannot be
lost sight of the fact that the assailants were not from the said area and,
therefore, there is no reason for them to know the deceased. Some
questions were asked about the nature of business of A12 Pratap and
whether his vehicles were engaged by Jet Airways which the witness
replied that he had no knowledge. P.W. 4 Addu admits that there was
no documentary evidence to show that he was working in the Travel's
office of A12 Pratap. He further deposed that he did not remember
whether the neighbours or the pedestrians were present over there
when he pointed out the residence of Kamlakar to those two accused.
155. Learned counsel Mr. Sejpal for Accused nos. 4, 5 and 8 made
an attempt to shatter the evidence of this witness, but in vain.
Whatever suggestions have been given by the learned counsel had all
been denied by him. There is no effective cross by learned counsel Mr.
Sejpal.
156. As such, the prosecution has sufficiently established that A2
Vijay Giri, A3 Ashokkumar Jaiswar, A4 Narendra alias Kandi Giri and
A5 Anil Giri had been to the office of A12 Pratap from where P.W. 4
Addu was assigned the job of showing the deceased and his residence to
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the assailants who are admittedly close relatives of each other. the
common intention which they had shared is implicit from the totality of
the evidence. Their prior meeting of minds is also clear. The existence
of common intention can also be inferred from the attending
circumstances of the case and the conduct of the parties. As a matter of
fact, no direct evidence of common intention is necessary. The
participation in the commission of the offence even need not be proved
for the purpose of common intention in all the cases. Here in the case,
from the discussion made hereinabove, it can verywell be said that A2
Vijay Giri, A3 Ashokkumar Jaiswar, A4 Narendra @ Kandi Giri and A5
Anil Giri definitely shared the common intention to eliminate the
deceased. The prosecution has also proved that all of them were also
the part of the larger conspiracy hatched in this case. The aspect of
conspiracy and motive will be discussed in the subsequent paragraphs
with the aid of the call detail record of mobile phones.
157. Now, a few lines on the point of reinvestigation and further
investigation. The learned counsel Mr. Pasbola in his elaborated
arguments tried to impress upon me that there is one murder, but two
investigations with two motives attributed which are contradictory,
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having different eye witnesses. He argued that Section 173 (8) of
Cr.P.C. permits further investigation and not reinvestigation. The
concept of reinvestigation is foreign to the criminal jurisprudence. The
DCB,CID had no right to conduct reinvestigation. He further argued
that even if it is presumed that it is a further investigation, no prior
permission or intimation was obtained. He drew my attention to the
crossexamination of P.W. 3 PI Shelke. Though, it is presumed to be a
further investigation carried out by DCB,CID, in fact it is a re
investigation by them. In support of his contention, Mr. Pasbola has
pressed into service following authorities:
(1) (1998) SCC CRI page 1307 in case of K.
Chandrashekhar vs. State of Kerala. The
relevant portion in paragraphs 23 and 24 of
the judgment of Hon'ble Supreme Court has
been quoted as under:
“Mere a plain reading of the above section, it is
evident that even after submission of the police
report under subSection (2), on completion of
investigation, the police has a right of “further
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 165
investigation under subSection (8) not “fresh
investigation” or reinvestigation”.
(2) Rama Chaudhari vs. State of Bihar
reported in (2009) 2 SCC (Cri) 1059.
(3) Mithabhai Pashabhai Patel & Others vs.
State of Gujarat reported in (2009) 2 SCC
(Cri) 1047.
(4) Virendra Pratap Singh vs. Rajesh
Bharadwaj reported in (2010) 3 SCC (Cri)
1169.
158. On the other hand, learned SPP strenuously argued that this
is not a case of reinvestigation, but further investigation if the
chronology of the events are taken into consideration which occurred
naturally in such a manner that it was a continuous investigation. The
accused were immediately arrested by the Sakinaka police station
whose remand was sought from the competent court and also after the
arrest of other accused, the intimation of their remand has been given
to the Court about the further investigation by the DCB,CID, which is
evident from the remand reports, which are exhibited at Exhs. 467,
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468 and 472. Looking to the gravity and magnitude of the offence,
only because the fact of further investigation has not been duly
intimated to the court where Sakinaka police station had filed the
earlier chargesheet, would not vitiate the entire investigation, more
particularly, the investigation of this case which was conducted under
the provisions of MCOC Act where there is an inbuilt safeguard of
obtaining prior approval u/s. 23(1) of the MCOC Act and sanction u/s.
23(2) of the said Act for filing chargesheet. It is also pertinent to note
that the Crime Branch had not abandoned the investigation conducted
by police station Sakinaka and in fact both cases have been merged in
this present trial and it is only on the basis of the totality of the
evidence and in view of the direction of the Hon'ble High Court, these
matters are being conducted together. The learned SPP Mr. Thakare
has, therefore, placed useful reliance on an authority reported in
(2008) 2 SCC, paged 383 in case of State of Andhra Pradesh vs. A.S.
Peter. The ratio laiddown by the Hon'ble Supreme Court is similar to
that of the ratio laiddown by the same Court in the ruling pressed into
service by the defence. It is held and I quote following paragraphs:
Para 9: “Indisputably, the law does not mandate taking of prior permission from the
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Magistrate for further investigation. Carrying out of a further investigation even after filing of the chargesheet is a statutory right of the police. A distinction also exists between further investigation and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not”. Para 14: “In Ram Lal Narang this Court was concerned with a case where two conspiracies were alleged; one being part of a larger conspiracy. Two investigations were carried out. This Court, while opining that further investigation is permissible in law, held that the Magistrate has a discretion in the matter to direct further investigation, even if he had taken cognizance of the offence, stating: (SCC pp. 33738, para 20).“20. ... The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 168
inform the court and seek formal permission to make further investigation when fresh facts come to light”.
Para 16: “Even in regard to an independent investigation undertaken by the police authorities, it was observed: (Narang case, SCC p. 338, para 21).“21.... In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation”.
Para 18: “Reliance placed by the High Court as also by Mr. Rai on K. Chandrasekhar is misplaced. Therein investigation had been carried out by the Central Bureau of Investigation with the consent of the State. However, the State withdrew the same. The question which arose for consideration therein was as to whether it was permissible for the State to do so. The said issue was answered in the negative stating that the investigating officer must be directed to complete the investigation”.
159. Thus, by no stretch of imagination, it is said to be a re
investigation and, therefore, the arguments of the learned counsel Mr.
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Pasbola and Mr. Sejpal do not hold water.
160. In order to understand the motive and conspiracy behind
the murder of Corporator Kamlakar Jamsandekar, prosecution has
adduced not only the oral evidence of P.W. 1 Komal Jamsandekar Exh.
156, the widow of the deceased and P.W. 2 Nilkanth Bane Exh. 159, the
Personal Assistant of the deceased, but also heavily relied upon
confessional statements of seven accused, more particularly, the
confessional statement of A9 Sandip Gangan Exh. 324 and A10
Shrikrishna Gurav alias Babu Exh. 251, A15 Suresh Patil Exh. 239,
coupled with the scientific evidence of the CDR of the mobile phones.
161. The argument of the defence is that the prosecution has put
forth two theories, one is of Sakinaka police station and another is of
DCB,CID which are contradictory and inconsistent. As per Sakinaka
police station, A12 Pratap, A13 Rane and A12 Ganesh Salvi entered
into a criminal conspiracy after the defeat of A13 Rane in the
Municipal Elections of the year 2007, to commit the murder of
Kamlakar Jamsandekar. The Crime Branch has not given up the story of
aforesaid conspiracy put forth by the Sakinaka police station during
further investigation under the provisions of MCOC Act. It is submitted
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by Mr. Pasbola as well as Mr. Sejpal, the learned counsel for accused
that it is alleged by the prosecution that A6 Sahebrao Bhintade was on
cross terms with deceased Kamlakar Jamsandekar who was earlier his
protege has upstaged him in politics. In fact, A6 Bhintade had lost the
election of Municipal Corporation against the deceased in January
2007. It is further alleged that A7 Surve (who died on 17.7.2012) was
earlier the beneficiary of the deceased and was subsequently enraged as
Kamlakar has taken initiative of getting demolished unauthorised
construction allegedly belonging to him and his nephew. It is also
alleged that A6 Bhintade and A7 Surve paid Rs.30/ lakhs to A1 Arun
Gawali at Dagdi Chawl some time in December 2006, by A12 Pratap
and A13 Rane to carry out the murder of Kamlakar Jamsandekar.
Thus, it is the contention of the defence that the prosecution story so far
as investigation by DCB,CID under MCOC Act is at cross road with the
investigation carried out by the Sakinaka police station and, therefore,
there cannot be any fixed motive shown by the prosecution for the
alleged crime. It is further submitted that P.W. 33 API Shelke and P.W.
37 ACP Durafe did not say a word regarding alleged motive. There is
no evidence led by the prosecution to show any unauthorised
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constructions raised by A7 Surve. The silence of P.W. 1 Komal
Jamsandekar in not naming A6 Bhintade and A7 Surve also speaks
that they had no intention or motive behind the conspiracy. The
evidence of P.W. 2 Bane, is also, according to the defence, required to be
discarded as whatever he had testified about his conversation with
deceased Kamlakar as regards the threats given by A6 Bhintade has not
been substantiated by cogent evidence.
161. Learned counsel Mr. Kulkarni for A6 submitted that the
prosecution case is just a figment of imagination, for there is no
admissible evidence to show the involvement of A6 Bhintade in the
murder of deceased Kamlakar Jamsandekar. There could not have been
conspiracy to kill the deceased in 2008 when the deceased was
assassinated in the month of March 2007 itself. He submits that A6
Bhintade did not contest the elections of 2007. The evidence of P.W. 1
Komal Jamsandekar and P.W. 2 Nilkanth Bane is unbelievable for, the
investigating officer had disbelieved P.W.2 Nilkanth Bane which is clear
from the evidence of P.W. 37 ACP Durafe. Thus, the learned counsel has
prayed for giving benefit of doubt to A6 Bhintade.
162. On the other hand, the learned SPP Mr. Thakare submitted
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that motive is not a necessary ingredient of an offence and especially if
there is other strong and convincing evidence regarding commission of
an offence by the accused persons, however, in a case based on
circumstantial evidence, it can be an added circumstance. Therefore,
keeping aside the motive part for the sake of arguments, the evidence of
prosecution does not get annulled and, therefore, inspires confidence.
He submits that evidence of P.W. 1 Komal and P.W. 2 Nilkanth indicates
their apprehension regarding A6 Bhintade and A7 Surve. Motive is
something which is in the heart of the persons which cannot be
fathomed. He submits that on the basis of evidence on record, the
motive was not to kill the person Kamlakar Jamsandekar, but the
Corporator in him and looked from this angle, the story of Sakinaka
police station or DCB,CID cannot be said to be conflicting or
contradictory. It is further submitted by Mr. Thakare that the
subsequent conduct of A6 Bhintade and A7 Surve is also to be noted
when after the murder of sitting corporator of Shiv Sena Kamlakar
Jamsandekar, A6 Bhintade suddenly joined Shiv Sena. However, as the
sympathy goes with the relatives of the deceased, ticket for election was
issued by the Shiv Sena party to the widow of the deceased P.W. 1
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 173
Komal. It is also noted that before the byeelection held in October
2007, the chargesheet was submitted by Sakinaka police station which
is sufficient to satisfy A6 Bhintade and A7 Surve as they were given a
clean chit by the Sakinaka police station in the murder of Kamlakar
Jamsandekar. In this background, the subsequent conduct of A6
Bhintade and A7 Surve was to accept the situation as it is to achieve
their goal which was not acceptable to the deceased Kamlakar during
his life time.
163. In the light of the aforesaid arguments of the respective
sides, the evidence of P.W. 1 Komal and P.W. 2 Nilkanth is required to be
scrutinised.
164. Before adverting to their evidence, it is to be noted that
deceased Kamlakar was elected thrice as a Corporator of the Municipal
Corporation of Mumbai. He was a Corporator for the years 1997, 2002
and then lastly in 2007. He was a popular Corporator who was doing
social service and was instrumental in removing illegal constructions
and encroachments. A6 Bhintade was a Corporator of Shiv Sena in the
year 1992.
165. In the year 1997, Kamlakar Jamsandekar was an
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independent candidate who was supported by Akhil Bhartiya Sena in
which one Ashok Bedekar of Shiv Sena was defeated. In the year 2002,
deceased Kamlakar was elected as a candidate of Shiv Sena by
defeating A6 Bhintade who had contested the said election as a
Nationalist Congress Party candidate. Again in 2007, the deceased was
elected as a candidate of Shiv Sena from the said Ward. Now, in this
context, the evidence of P.W. 1 Komal and P.W. 2 Nilkanth is required to
be scrutinised.
166. P.W. 1 Komal Jamsandekar testified that she was married to
the deceased Kamlakar on 6.3.1992. When A6 Sahebrao Bhintade was
defeated in the Municipal Corporation elections in the year 2002 and
again in the election of 2007 where her husband was elected, the
relations between her husband and A6 Bhintade turned unfriendly. As
already stated that it was A6 Bhintade who had brought the deceased
into politics and obviously if he suffered two defeats at the hands of
deceased Kamlakar Jamsandekar, then obviously the relations were
bound to be bitter and unfriendly. P.W. 1 Komal's evidence further
reveals that her husband used to extend all kind of assistance and was
looking after the development of the ward and was also against the
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unauthorised construction and encroachments. He was instrumental in
removing the encroachments from the ward which came up due to the
blessings of A7 Surve. Initially, the relations between A7 Surve and
her husband were good, but later, relations turned sour because of
removal of unauthorised huts. She made it clear that her husband used
to narrate her about the conduct of A6 Bhintade and A7 Surve by
saying that they were angry with him. Her evidence further indicates
that in the year 2007, A13 Rane had also contested the Municipal
elections against her husband which he lost and, therefore, had a
grudge against her husband.
167. During her searching crossexamination, the learned counsel
Mr. Pasbola could not make any dent or rebut the testimony of this
witness. She admits that she used to attend her husband for social
functions and also used to campaign for all the elections. She was very
well aware as to who were the supporters and who were not the
supporters of her husband right from the elections of 1997. She admits
that A6 Bhintade was not one of the candidates of elections of 2007. It
is brought in her crossexamination that there is a Jangaleshwar
Maharaj Mandir in the ward of which A7 Surve was the trustee. A7
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 176
Surve used to felicitate the deceased on the day of 'Shivratri' as the
deceased was a sitting Corporator from the Ward. She also used to
accompany her husband in the said temple on the occasion of
'Shivratri'. She admits that in the month of March 2008, she had
attended the marriage ceremony of daughter of A7 Surve at Ghatkopar
and that in the month of April 2008, she had been to Ganpatipule along
with one Bhau Korgaonkar and stayed in a hotel which belonged to A7
Surve. This admission of P.W. 1 Komal would not ipsofacto indicate
that A6 Bhintade or A7 Surve had no motive as has been rightly
argued by SPP Mr. Thakare that when these two accused realized that
they have not been arraigned as accused by Sakinaka police station,
they thought it would be better to keep the relations good in view of
their further designs. It seems from the evidence that P.W. 1 Komal,
while stating her pathetic plight had lost her composure when the cross
was required to be deferred on 12.10.2010. One has to take into
consideration the discomposure of a widow who had lost her husband
at a young age and that it would be very difficult for her to express in
somany words as to what the deceased used to narrate her when he
had an apprehension in his mind about the illintentions of A6
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Bhintade and A7 Surve. The crossexamination indicates that she had
no personal knowledge about the nature of complaints made by her
husband concerning the unauthorised constructions made by A7 Surve.
After the death of her husband, the police attached to Sakinaka police
station had been to her for enquiry. As she was not in a fit mental
frame, she could not make any statement. The police again had been to
her, but they did not record her statement. She further testified that she
had discussion with the friends and followers of her late husband as
regards the incident with a view to ascertain as to what could have been
the reason for the incident, however, she did not express her doubts to
anybody about the involvement of anybody in the murder of her
husband. Her statement was recorded at the Office of Crime Branch,
Crawford Market by ACP Durafe. In paragraph 15 of her cross, she has
categorically deposed that her late husband did not inform her the
names of any other persons except A6 Bhintade, A7 Surve and A13
Rane as the persons who turned unfriendly with him. However, she
does not know whether her husband had taken steps to remove all the
unauthorised constructions in his ward. She also states that it did not
come to her mind that she should go to the police and express her
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doubts about A6 Bhintade and A7 Surve. According to her, she did
entertain the said thought, but did not want to go to the police as A6
Bhintade and A7 Surve were like fatherinlaw to her. One can read
between the lines and can realize the intense feelings of the gullible
widow who did have the full idea about the role of these two accused,
but looking to the earlier relations, she restrained herself from
approaching the police. The psychological aspect is vital as there
cannot be a straight jacket formula for any individual to react in a
particular way. It is pertinent to note that A6 Bhintade had even
participated in byeelections of 2007 which was contested by P.W. 1
Komal. She testified that it was a decision made by the leaders of the
party at the high level and, therefore, she did not have any objection to
allow A6 Bhintade to canvass for her. It is very important to note that
according to her, she had kept everything close to her heart.
168. Mr. Rasal, the learned counsel for Accused nos. 8, 12, 13
and 21 crossexamined the witness mainly on the topography of the
room where the deceased was assassinated and about interest of
deceased in hunting, which she admits. Further, she deposed that she
was not aware as to howmany votes were secured by A13 Rane in the
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elections of 2007. She was not crossexamined on behalf of rest of the
accused.
169. P.W. 2 Nilkanth Chandrakant Bane who has identified both
A6 Bhintade and A13 Rane has supported the evidence of P.W. 1 Komal
in so far as the elections in the said ward and the defeat of A6 Bhintade
in the elections of 2002 and also about the defeat of A13 Rane in the
elections of 2007. On the point of motive, he testified that till 1997,
relations between Kamlakar and A6 Bhintade were good and thereafter,
they became unfriendly because A6 used to collect money from the
people under the guise of funds and would encourage unauthorised
structures in the ward. P.W. 2 being a trusted person of deceased
Kamlakar and as the relations were like brother, Kamlakar would
disclose everything to him. Deceased Kamlakar disliked the
unauthorised structures and encroachments in the ward. P.W. 2
Nilkanth Bane used to accompany the deceased to the Office of
Corporation and also used to enter into correspondence with the
Corporation. He further testified that the relations between Kamlakar
Jamsandekar and A7 Surve were initially very good, but subsequently,
due to the unauthorised structures in the reserved land and plot around
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 180
Jangaleshwar Mandir by A7 Surve, there were several complaints made
to the deceased. He testified that surrounding the Jangaleshwar
Mandir, there was a reserved piece of land of Bombay Municipal
Corporation where due to the efforts of the deceased Kamlakar, a
garden was developed. At the request of A7 Surve, it was named as
“Anandibai Surve Garden”. However, the subsequent activities of
unauthorised construction, people started complaining against A7
Surve to the Corporation for removal of the said unauthorised structure
which mostly belonged to nephew of A7 Surve. For this reason, the
relations between them turned inimical.
170. P.W. 2 Nilkanth Bane has further deposed that one day, he
was accompanying the deceased Kamlakar to the BMC Office when
suddenly, the blood pressure of the deceased shot up. When P.W. 2
Nilkanth enquired with him about the reason, he expressed that he had
perceived threats to his life at the hands of A6 Bhintade and A7 Surve.
He also perceived threats to his life at the hands of members of Akhil
Bhartiya Sena of A1 Arun Gawali and one Prakash More. A12 Pratap
and A13 Rane and one madam Surve were the members of Akhil
Bhartiya Sena from their ward. The witness has identified A13 Rane
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 181
and A12 Pratap in the Court. He testified that thereafter, on 2nd March
2007, Kamlakar was shot dead at his residence.
171. The learned counsel for A6 Mr. Kulkarni made all efforts
during crossexamination to shatter the testimony of this witness, but in
vain. The crossexamination reveals that this witness is well aware of
the political career of A6 Bhintade. He had been working as an
assistance of the deceased Kamlakar from 1997 till his death.
According to him, A6 Bhintade had developed difference with the Shiv
Sena office bearers and, therefore, had separated from that party.
Deceased Kamlakar was not desirous of making a political career.
However, he was the only person to give tough fight to the candidate of
Shiv Sena and, therefore, A6 Bhintade pursued him to contest the said
election by financing him. It appears that A6 Bhintade tried to utilise
deceased Kamlakar as a scapegoat in making a political career.
However, the political differences increased after the election of 2002.
When A6 Bhintade realized that deceased Kamlakar upstaged him,
obviously, he nurtured a grudge and so also A13 Rane who was
defeated in the election of 2007, by the deceased. It does not stand to
reason that only because A13 Rane secured lowest votes in the said
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 182
election and, therefore, there can be no reason for him to have any
enmity or grudge against the deceased Kamlakar. Interestingly, the
crossexamination further reveals that A6 Bhintade was raising funds
for making ambulance services available. However, he never purchased
any ambulance. This witness was not aware as to what happened as
regards the funds collected by A6 Bhintade in 2007. He admits that it
did not come to his mind that he should go to the police and complain
about the funds raised by A6 Bhintade, as according to him, there was
a terror of A6 Bhintade.
172. The cross also reveals that 25 days before the death of the
deceased Kamlakar, his blood pressure shot up when both were on the
way to BMC Office when deceased informed him that he perceived
threats to his life from A6 Bhintade and A7 Surve. He further deposed
that thereafter on one day, when deceased Kamlakar and this witness
were on the way to Bhavna hospital, suddenly A6 Bhintade came
across when the deceased bowed before him. A6 Bhintade asked him
not to bow down. The witness testified that the said gesture of A6
Bhintade was an implied threat to the life of the deceased Kamlakar.
The witness felt both the incidents to be very much important and
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 183
relevant to the cause of the death of the deceased Kamlakar. A specific
question was asked to the witness whether he thought of informing
both these incidents to the police, he answered, that he did prepare a
written complaint about both the incidents, addressed to the Sakinaka
police station, but the deceased Kamlakar did not allow him to file the
said complaints with the Sakinaka police station. He further deposed
that after the murder of the deceased Kamalakar, when he tried to
narrate the incident to the police, they laughed at him, especially the
Crime Branch official P.W. 37 asked him to narrate the said episode
before the court and, therefore, did not record these incidents in his
statement. This witness had also been to Chandivali police station to
state about those two incidents, but the police officials of the said police
station also laughed at him. He, however, did not complain to the
higher officer. It appears that he had been to the Crime Branch Office
on several occasions as and when they used to summon him. Only
because he had not narrated about those two incidents to P.W. 1 Komal
would not mean that the said conduct is doubtful or that his evidence is
unbelievable, more particularly, when these aspects have been
unearthed during cross by the defence itself with minute details,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 184
substantiating what has been testified by him in his examinationin
chief.
173. During his crossexamination by learned counsel Mr. Rasal
for Accused nos. 8, 12, 13 and 21, it is elicited that while at Chandivali
police station during enquiry, he had named A6 Bhintade, A7 Surve
and A13 Rane. In the crossexamination, the learned counsel has
repeated two episodes as regards increasing blood pressure of the
deceased and about his expression of threats to this witness and the
conduct of A6 Bhintade and A7 Surve. This witness is verywell
acquainted with A13 Rane and A12 Pratap.
174. Mr. Pasbola, the learned counsel for Accused in paragraph
18 of crossexamination of P.W.2, again put the questions about the
increase of blood pressure of the deceased Kamlakar when P.W. 2
Nilkanth had accompanied him to the BMC office and about the
incident of A6 Bhintade. In that context, the witness testified that he
cannot state after how many days of the two incidents, he prepared a
written complaint for being submitted to the police. The said complaint
was given to one of the activist for handing over to the police station,
however, it was not handed over because deceased Kamlakar did not
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 185
want to lodge a complaint. One month after the death of deceased
Kamlakar, P.W. 2 realized that the said complaint would be material for
investigation of the murder and, therefore, he asked the said activist to
hand it over to him, but he did not. The witness could not answer as
regards the details of complaint of unauthorised structures received by
the deceased Kamlakar as he did not inspect any such files. He denied
the suggestion that the unauthorised structures came up at the blessings
of Corporators of respective wards which impliedly suggest that there
were unauthorised structures which were constructed on the blessings
of the A7 Surve, which has been admitted by this witness. He
categorically made it clear that in the year 198485, when unauthorised
structures of nephew of A7 Surve had come up, which were then
removed and hence, relations between deceased Kamlakar and A7 Bala
Surve turned unfriendly. He further made it clear that the similar thing
had happened after 2002 onwards.
175. A very important aspect has been brought in cross in
paragraph 20 that despite soured relations, deceased Kamlakar used to
visit A7 Surve which can be said to be the goodness of the deceased as
a Corporator and a social worker. It also reveals that there used to be a
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 186
talk over the fact that A6 Bhintade and A7 Surve were at large when
the police had chargesheeted some others.
176. If the evidence of these two witnesses visavis the other
circumstances and the confessional statements of some of the accused
are taken into consideration, it would precisely attract Sections 8 and
Section 10 of the Law of Evidence. Adequacy of motive is of little
important as atrocious crimes are committed for very slight motive.
Motive is not an ingredient of an offence. But when it is proved, it
helps the court to come to a correct conclusion when there is not direct
evidence. Motive is provable as a relevant fact in the case,but the same
can be proved by positive evidence and not by the hearsay evidence. In
proving the motive u/s. 8 of the Evidence Act, the prosecution has
relied upon the testimony of these two witnesses which, if juxtaposed
with the confessional statements and other circumstances would
definitely indicate that there was a motive behind the murder of
deceased Kamlakar, in so far as A6 Bhintade, A7 Surve and A13 Rane
are concerned. The prosecution has fully established by the
incriminating circumstances on record the motive behind the
commission of the offence.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 187
177. As such, A2 Vijay Giri, A4 Narendra Giri are proved to be
directly connected with the murder of Kamlakar Jamsandekar and in
the light of evidence of P.W. 4 Addu, the complicity of A12 Pratap,A13
Rane and A10 Shrikrishna Gurav is established which shows the
mensrea in commission of the offence and which also shows that these
are the persons along with A6 Bhintade and A7 Surve who hatched a
wellplanned conspiracy with a definite motive to eliminate the
deceased Kamlakar Jamsandekar. The prosecution has established these
basic facts independently without the aid of confession.
178. Now, the most important aspect of the prosecution case is
the confessional statements of seven accused u/s.s18(2) of the MCOC
Act, 1999. A bare look at the chart hereinbelow would give an idea
about the details as to the recording of confessional statements, by
whom the statements were recorded, whether they were retracted or
otherwise and names of the accused persons reflected in the respective
confessional statement of the confessors.
CHART SHOWING THE DETAILS OF CONFESSIONAL STATEMENTS OF ACCUSED RECORDED U/S. 18(2) OF MCOC ACT, 1999.
Name of the Date of Name & If retracted Name of the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 188
Accused confession Part II
Designation of Police officer who recorded confession
when and before whom
Accused persons reflected in the confession statement
Ashok Jaiswar A3
28/05/2008 Exh.227
Mr. Vinay Chaube, DCP Zone IX
Retracted before CMM
Pratap Godse, Ajit Rane, Shrikrishna @ Babu Gurav, Vijay Giri, Narendra Giri & Anil Giri
Narendra Giri A4
04/06/2008 Exh.214
Mr. Rajendra Dabhade, DCP LA 2 Tardeo
Retracted before CMM
Pratap Godse, Ajit Rane, Shrikrishna @ Babu Gurav, Vijay Giri, Ashok Jaiswar, and Anil Giri
Anil Giri A5 04/06/2008Exh. 289
Mr. Vijaysingh Jadhav, DCP HQ 1
Retracted before CMM
Pratap Godse, Ajit Rane, Shrikrishna @ Babu Gurav, Vijay Giri, Narendra Giri & Ashok Jaikswar.
Sandip 27/05/2008 Mr. Brijesh Not retracted Arun Gawali,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 189
Gangan A9 Exh. 324 Singh, DCP Zone I
Pratap Godse, Ajit Rane, Bala Surve, Sahbebrao Bhintade & Suresh Patil
Babu Gurav A10
28/05/2008Exh. 251
Mr. D. Phyadtare, DCP Zone V
Not retracted Arun Gawali, Pratap Godse, Ajit Rane, Vijay Giri, Narendra Giri, Ashok Jaiswar, Anil Giri, Dinesh Narkar, Bala Surve, Sahbebrao Bhintade & Surendra Panchal.
Dinesh Narkar A11
04/06/2008Exh. 264 & Exh. 268
Mr. Y.P. Dhoom, DCP Port Zone
Retracted before CMM
Ajit Rane, Pratap Godse, Shrikrishna @ Babu Gurav and Surendra Panchal.
Suresh Patil A15
13/07/2008Exh. 241
Mr. Dilip Sawant, DCP Zone VI
Retracted before CMM
Arun Gawali, Ajit Rane, Pratap Godse,Bala Surve, Sahebrao Bhintade,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 190
Sandip Gangan and Sunil Ghate,
179. At the outset, it is argued by the learned counsel Mr. Pasbola
that the whole case is based on confessional statements. If they are
accepted, prosecution succeeds, if not, prosecution fails. He submits
that the confessional statements of A9 Sandip alias Sandy Gangan,
A10 Shrikrishna alias Babu Gurav, A11 Dinesh alias Dinya Narkar and
A15 Suresh Patil are exculpatory and, therefore, required to be
discarded. No confession is voluntary. He further submits that A12
Pratap Godse and A13 Ajit Rane could have themselves executed the
plan and there was no need to go to A1 Arun Gawali for such a small
sum and that too by the use of country made gun when A1 Arun
Gawali was tried for possessing arms like AK47 etc. This argument of
the defence speaks volume in the light of the fact that the prosecution
alleges about an organized crime syndicate run by A1 Arun Gawali who
also is a political head of his party viz. Akhil Bhartiya Sena of which he
was a sitting MLA at the relevant time. It is further submitted that A3
Ashokkumar Jaiswar, A4 Narendra alias Kandi Lalmani Giri, A11
Dinesh Narkar and A15 Suresh Patil have retracted their confessions
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 191
before the Chief Metropolitan Magistrate whereas, A9 Sandip Gangan
and A10 Shrikrishna have retracted their confessions before this Court.
If the confession is real, it would not evaporate within hours, a person
unburdens himself by a confession. He submits that the accused were
through out in the custody of the DCPs and even then the confessions
were retracted before the Court, which means that those were not
voluntary. It is also submitted that the confessions were retracted
immediately after the influence of the police was over. Retraction
should also be voluntary, if not, it diminishes its value. He further
submits that confessions are exact copies of one another including the
mistakes indicating that they are stereo type and mechanical. There is
noncompliance of Section 18 subsection 2 of the Act read with Rule 6
of the Act. According to Mr. Pasbola, the confessional statements of A9
Sandip, A15 Suresh Patil and A10 Shrikrishna Gurav contradicted each
other. The DCPs. before whom the alleged confessions were made had
not put important and material questions. The letter and other
documents were concocted. The process of recording confessional
statements show that they are made later on to bolster the prosecution
case. This is what is the gist of the entire argument of the defence.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 192
180. On the other hand, learned SPP Mr. Thakare argued at the
bar that the defence does not dispute the confessional statements of A3
Ashok Jaiswar, A4 Narendra Giri and A5 Anil Giri as the confessions in
real sense. He submits that these confessions including the confessions
of the other accused are to be looked into in view of Section 3(1) (2)
and in view of Section 2(1)(a) of the MCOC Act, 1999 (for short
“MCOC Act”). According to Mr. Thakare, the authorities relied upon by
the defence are outdated and old which do not cover or consider the
provisions of MCOC Act as the Act was not in existence at the relevant
time. The prosecution has mainly relied upon confessional statements
of A9 Sandip Gangan Exh. 324, A10 Shrikrishna alias Babu Gurav
Exh. 251 and A15 Suresh Patil Exh. 241. It is submitted by Mr.
Thakare that it can be seen from the chart that both A9 Sandip and
A10 Shrikrishna did not even retract their confessions before the Chief
Metropolitan Magistrate, on the contrary admitted the voluntariness
thereof and, therefore, these confessions can be relied upon and
accepted as truthful and voluntary without going to the evidence of the
concerned DCPs., who recorded their confessional statements though
the prosecution has examined all the DCPs. in this case along with
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 193
contemporaneous record in the nature of the diary entries made at the
various police stations which is the precaution taken by the respective
DCPs. while following the procedure for recording confessions. He
further submits that confession of A15 Suresh Patil although retracted
before the CMM, it is significant to note that he has not made any
allegation of illtreatment or torture at the hands of the police. In fact,
the accused had earlier made an application before this court
contending interalia, that he did not want to make any confession and
this fact has been stated by him before the DCP mentioning interalia,
that because of terror of A1 Arun Gawali and on the legal advice, he
had made such application to the court. In this background, his
retraction before the CMM again can be attributed to the same cause.
However, since the voluntariness itself is not challenged, in spite of such
retraction the confession will have to be given due probative weight
after considering the evidence of PW18 Dilip Sawant, who has in his
evidence meticulously described the precautions taken by him while
recording the confessions in free and fair atmosphere.
181. It is further argued by Mr. Thakare that it is significant to
note that A15 Suresh Patil is also a coaccused along with the main
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 194
accused i.e. A1 Arun Gawali in case of extortion Exh. 465 (colly.)
being one of the previous cases relied upon by the investigating agency
on the basis of which provisions of MCOC Act have been invoked and
also the fact that he is a member of Akhil Bhartiya Sena which is a
political wing of Organized Crime syndicate, headed by A1 Arun Gawali
and even at the time of his arrest, the identity card and relevant papers
showing his relations with Akhil Bhartiya Sena have been recovered
under panchanama Exh. 443, which has been admitted u/s. 294 of the
Cr.P.C.
CONFESSIONAL STATEMENT OF A10 SHRIKRISHNA @ BABU TUKARAM GURAV.
182. P.W. 19 Dnyaneshwar Mansingrao Phadtare Exh. 246, was
working as DCP, Zone V, Mumbai which is a post equivalent to the post
of Superintendent of Police and is empowered to record confessional
statement under the provisions of MCOC Act. He testified that pursuant
to the letter of Joint Commissioner of Police Crime Exh. 247, Mr.
Rakesh Maria, he was directed to record the confessional statement of
A10 Shrikrishna in DCB,CID C.R. No. 69 of 2008. Pursuant to this
letter, P.W. 19 Phadtare wrote a letter to the I.O. of this case to produce
the accused before him on 27.5.2008 at 15.00 hours. The said letter is
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 195
proved at Exh. 248. Accordingly, A10 Shrikrishna was produced before
him on 27.5.2008 at 17.10 hours. The letter which was signed by the
main I.O. Mr. Durafe P.W. 37 is proved at Exh. 249 along with the said
letter, there was one more letter indicating medical examination report
of the accused which is proved at X58. P.W. 19 Mr. Phadtare took A10
Shrikrishna in his custody who was produced by PSI Naik before him.
The letter to that effect is proved at Exh. 250. Thereafter, P.W. 19 Mr.
Phadtare asked PSI Naik and his staff to leave his chamber. He asked his
peon Mr. Chabukswar to close the door and not to allow anyone to enter
his chamber without prior permission. Thereafter, P.W. 19 Mr. Phadtare
talked with A10 Shrikrishna in Marathi language and realized that he
was comfortable. He made him aware about his post and power to
record the confessional statement and also informed him that he is in no
way connected with the investigation of the crime. A10 Shrikrishna
understood the same. Thereafter, P.W. 19 Mr. Phadtare informed him
that he is no longer in the custody of the investigating authorities. He
also ascertained from A10 Shrikrishna as to whether the officers of the
investigating agency misbehaved with him or promised to make a
confession which is replied in negative by A10 Shrikrishna. Thereafter,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 196
P.W. 19 Mr. Phadtare asked him his name, age, educational qualification,
address and family background etc. A10 Shrikrishna told him that he
had studied upto 10th standard in Marathi medium and he would be
comfortable in conversing in Marathi language. A10 Shrikrishna was
aware as to why he was produced before P.W. 19 Mr. Phadtare. He
voluntarily expressed his desire to make a confession. On being asked
by P.W. 19 Mr. Phadtare, he stated that he wants to confess with respect
to the murder of Shiv Sena Corporator Kamlakar Jamsandekar. On
being asked by P.W. 19 DCP Phadtare, he stated that none of the
investigating officer threatened him for making the confession. He had
also stated that he was not lured to make a confession nor there was
any pressure. P.W. 19 DCP Mr. Phadtare asked A10 Shrikrishna whether
he had been promised to make him an approver which he replied in
negative. P.W. 19 DCP Phadtare made A10 Shrikrishna aware that he is
not bound to make the confessional statement and if he makes such
confessional statement, that can be used as evidence against him and he
may be convicted. A10 Shrikrishna replied that he was aware of that.
He was also made aware by P.W. 19 DCP Phadtare that if he did not
make a confession, he would not be sent back to the custody of the I.O.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 197
It was also made clear that he was not bound to make confession before
this witness. P.W. 19 DCP Mr. Phadtare ascertained that A10
Shrikrishna understood each and everything and even then he found
that A10 Shrikrishna still desired to make a confession. P.W. 19 DCP
Mr. Phadtare also enquired with A10 Shrikrishna whether he required
presence of any of his relatives or lawyer during confession to which he
replied in negative. As P.W. 19 DCP Mr. Phadtare was satisfied that A10
Shrikrishna really wants to give a confessional statement voluntarily, he
gave him 24 hours' time for reflection in order to think over his decision
to make a confession. P.W. 19 DCP Mr. Phadtare informed A10
Shrikrishna that he would be kept in the lockup of Mahim police station
under his jurisdiction. He recorded the questions put to A10
Shrikrishna and he wrote answers thereto in his own handwriting
simultaneously. Thereafter, P.W. 19 DCP Mr. Phadtare obtained the
signatures of A10 Shrkrishna. Before obtaining his signatures, he read
all the contents to A10 Shrikrishna and thereafter, made an
endorsement in that regard. P.W. 19 DCP Mr. Phadtare also put his
signature and seal of the office thereon, which is Part I of the
confessional statement. It was put in a cover and sealed. The said Part
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 198
I is proved at Exh. 251.
183. The evidence of P.W. 19 DCP Mr. Phadtare further indicates
that he informed Sr. PI of Mahim police station to depute someone of
staff members to take custody of A10 Shrikrishna for being kept in the
lockup. PSI Pawar accompanied by some staff of Mahim police station
had come to get the custody of A10 Shrikrishna alias Babu. The letter
to that effect which bears the signature of PSI Pawar is proved at Exh.
252. By the same letter, P.W. 19 DCP Mr. Phadtare had instructed the
officer to take precaution that none would meet A10 Shrikrishna in the
lockup, interalia, directing the officer to produce A10 Shrikrishna
before him on 28.5.2008 at 7.30 p.m.
184. Accordingly, A10 Shrikrishna was produced before P.W. 19
DCP Phadtare on 28.5.2008 at 7.30 p.m. along with a certified copy of a
station diary entry made in that regard about keeping the A10
Shrikrishna in a separate lockup. The said entry is proved at Exh. 253.
Thereafter, P.W. 19 DCP Phadtare asked the police party to leave his
chamber. As such, now there were only two persons i.e. P.W. 19 DCP
Phadtare himself and A10 Shrikrishna in his chamber. He ensured that
the interaction between both of them could not be heard or overheard
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 199
by anyone. P.W. 19 DCP Phadtare further testified that he got himself
satisfied that the accused was not under pressure of anyone to make a
confession. He enquired whether 24 hours' time for reflection was
sufficient for him to which A10 Shrikrishna answered in the
affirmative. A10 Shrikrishna did not want more time for reflection. He
again ensured from A10 Shrikrishna and found that A10 Shrikrishna
still wanted to make a confession. He also ascertained whether any
officer connected with the investigation met in the lockup which he
replied in the negative. He was again made aware that it was not
legally obligatory on his part to make a confession to which he replied
that he was aware thereof. P.W. 19 DCP Mr. Phadtare enquired whether
he was subjected to any torture or threats or promised by any police
officer to make a confession which was also replied by A10 in the
negative. After getting himself satisfied, P.W. 19 DCP Mr. Phadtare
asked him whether any officer connected with the investigation had
asked him to make an approver or informed that he would be acquitted
if he makes a confession. A10 Shrikrishna replied in the negative. He
also made him aware that the confessional statement which would be
recorded might be used as evidence against him and on its strength, he
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 200
might be convicted. A10 Shrikrishna informed that he was aware
about it. He again informed him whether he wanted to have presence
of any of his relatives or advocate during confession to which he replied
in negative. When P.W. 19 DCP Mr. Phadtare asked A10 Shrikrishna as
to why he wants to make a confession, he replied that out of
repentance, he wanted to make a confession. From all these questions,
P.W. 19 DCP Mr. Phadtare was fully satisfied that A10 wanted to make a
confession voluntarily. He informed the accused that whatever he
would narrate would be recorded by him. Then he started recording
the answers to the questions put by him to A10. He gave the record of
Part II of the confessional statement to A10 Shrikrishna who perused
the same and affirmed it. A10 Shrikrishna signed below the statement
and each page of Part II. P.W. 19 DCP Mr. Phadtare has duly proved Part
II at Exh. 251A.
185. Thereafter, P.W. 19 DCP Mr. Phadtare wrote a certificate with
his signature and seal. Certificate is also in his own handwriting and is
proved at Exh. 251B. He thereafter sealed Part II of the statement
along with the certificate. He called PSI Pawar and his party to get the
accused back for being kept in the lockup of Mahim police station. P.W.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 201
19 DCP Mr. Phadtare gave instructions to the concerned police to keep
A10 Shrikrishna in a separate lockup. The letter to that effect is proved
at Exh. 254. P.W. 19 DCP Mr. Phadtare had also prepared a letter
addressed to the Chief Metropolitan Magistrate which is placed in a
cover and was duly sealed. It was delivered to PSI Pawar for being
delivered to the CMM and produce A10 Shrikrishna before the CMM.
The office copy of the said letter is proved at Exh. 255. On the next
day i.e. on 29.5.2008, PSI Pawar gave P.W. 19 DCP Mr. Phadtare, a copy
of his letter to CMM bearing acknowledgment receipt and signed by the
staff member of the court of CMM which is proved at Exh. 256. After
the purpose of production of A10 Shrikrishna before CMM was over, he
was again brought before P.W. 19 DCP Mr. Phadtare who then wrote a
letter to the I.O. to get back the custody of A10 Shrikrishna. The office
copy of said letter bearing signature of PSI Naik acknowledging to have
received custody of A10 Shrikrishna is proved at Exh. 257. P.W. 19
DCP Mr. Phadtare deposed that he obtained the certified copy of the
station diary entries made at Mahim police station whichs are proved at
Exh. 258 (colly.). The report of the CMM and the statement of the
accused recorded by him are proved at Exh. 259. P.W. 19 DCP Mr.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 202
Phadtare has identified A10 Shrikrishna from amongst the other
accused in the dock.
186. A confidential letter of the CMM Mr. M.H. Belose dated
29.5.2008 reveals that A10 Shrikrishna alias Babu Gurav was produced
before him by PSI Pawar of Mahim police station at 4.00 p.m. He called
the stenographer in the chamber and ascertained from the accused
about the contents of his statement in Part I and Part II, recorded by
Deputy Commissioner of Police Mr. Phadtare P.W. 19 and confirmed that
it was made voluntarily before him. The entire Part I and Part II was
again read over to A10 Shrikrishna by CMM. The accused submitted
that the said statement was recorded as per his say by the DCP which
was explained to him in Marathi and were voluntarily given by him
before the DCP. There is also an endorsement in the handwriting of
A10 Shrikrishna himself which indicates that : “eh e k>k tckc i w . k Z
fopkj k a r h fny syk vkg s o t s eyk ekghr gk s r s R;k i ze k. k s eh Jh - QMrj s
lkg sc k a P; k i w < s lk ax hry sy s vkg s - eh l ai w . k Z i. k s e kg hrh fny syh vkg s -
dk s V k Zle k s j eyk tkLr dkgh lk a x k;p s u kgh - eh f jD{ k k M ª k;Ogj Eg. k w u dke
djrk s - ek> s yXu >ky sy s vkg s - eyk n k s u e qy s vkg s r- r s e kÖ;k cj k scj
fnO;kyk j kgrkr- eyk >ky s Y;k x k s ” V hp k iÜpkrki >ky syk vkg s - Eg. k w u
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 203
iki kr q u eyk ek sdG a Og ko;kp s vkg s ] Eg. k w u g s lo Z lk axr vkg s -”
187. During expatiate crossexamination by learned counsel Mr.
Ponda for A1, nothing could be elicited from his mouth which would
render confessional statement of A10 Shrikrishna either doubtful or
involuntary. On the contrary, it reveals from the cross that P.W. 19 DCP
Mr. Phadtare had taken all precautions and steps which are required to
be taken care of while recording confessional statement u/s. 18(3) of
the MCOC Act, 1999. P.W. 19 DCP Mr. Phadtare had explained A10
Shrikrishna that he was not bound to make confession and that if he
does so, it can be used as evidence against him and then after getting
himself satisfied upon the questions put by him that the confession was
being made voluntarily he recorded the same. It was duly certified
below the confession about the personal satisfaction of P.W. 19 DCP
Phadtare and about the correctness of such voluntary statement by
putting the date and time. Not only that, it was forthwith sent to the
CMM along with A10 Shrikrishna who also satisfied about the
voluntariness of the same. There is absolutely nothing on record from
which one can say that there is some illegality or flaw in the
confessional statement recorded by P.W. 19 DCP Mr. Phadtare. The
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 204
learned counsel for the accused tried to bring on record certain minor
technicalities which do not go to the crux of the matter. On the
contrary, it has been substantiated that all the steps and the procedure
have been meticulously followed by P.W. 19 DCP Mr. Phadtare. P.W. 19
admits in cross that he did not enquire with PSI Naik as to when the
accused was arrested and when he expressed his desire to make a
confession. P.W. 19 DCP Mr. Phadtare further testified that he did not
feel it necessary to enquire with the accused when he was arrested and
when he expressed his desire to make a confession and, therefore, did
not question him in that regard. In this regard, it is to be seen that it is
solely the wish of the accused as to when and how he would express his
desire to make a confessional statement. The only thing is that accused
should be produced immediately after he expresses his desire to make a
confession. The witness also admits that his mother tongue is also
Marathi and so also of A10 Shrikrishna. In paragraph 30 of cross at
page 30, P.W. 19 DCP Mr. Phadtare admits that whatever questions he
put to the accused on 28.5.2008, have all been recorded in Part II and
so also answers of the accused given to the questions have been
recorded therein in verbatim. Similar is the case of Part I of his
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 205
confessional statement. He further admits that accused took little over
two hours to give the narration of his statement. In paragraph 36 of the
crossexamination, P.W. 19 DCP Phadtare admits that he was aware that
accused wanted to make a confessional statement in relation to the
murder of Shiv Sena Corporator Kamlakar Jamsandekar. He further
admits that participation of the accused in conspiracy to commit the
offence is also a material fact.
188. Now, let me scrutinise Part II and the relevant portion of the
confessional statement of A10 Shrikrishna alias Babu Gurav Exh. 251.
In his confessional statement, A10 Shrikrishna had stated that he drives
an autorikshaw. He came in contact with A13 Rane who is Vice
President of Akhil Bhartiya Sena, Kurla taluka, having his office at
Sakinaka Pipeline, Periera Wadi and he is residing at Shiv Om
Apartment, 5th floor, “B” Wing, Room No. 501,Chandivali Farm Road,
Chandivali, Mumbai. A13 Rane is a handicapped person as his left leg
has been amputated due to an accident. Some times he uses artificial
leg or some times uses crutches. A10 Shrikrishna frequently used to
attend the office of A13 Rane where he was closely associated with
A12 Pratap, A5 Anil Giri, A11 Dinesh Narkar, Pradip Shinde and
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 206
Mohammed Sharif alias Guddu. During July 2005 to October 2005,
they had threatened some builders and developers viz. Sagar Tech
Builders, Sadguru Developers, Ghatkopar (West), Silver Group and
Runwal Group Builders by forcibly entering into their offices and
threatening them that they had come from Dagdi Chawl which is the
famous name of residential area of A1 Arun Gawali and used to extort
money which they used to send it to A1 Arun Gawali through A12
Pratap Godse, A13 Ajit Rane, A15 Suresh Patil and A9 Sandip
Gangan. His confessional statement further indicates that around May
2006, since A12 Pratap and A13 Rane were in need of a gun for
threatening the builders to extort money, A10 Shrikrishna contacted his
cousin P.W. 11 Ramchandra alias Dhaktya Gurav. He took P.W. 11
Ramchandra to the office of A12 Pratap and A13 Rane where P.W. 11
Ramchandra assured them that he would procure a gun for them and
accordingly, A10 Shrikrishna and A12 Pratap gave their mobile
numbers 9819251750 and 9223202133 to P.W. 11 Ramchandra. After
45 days, P.W. 11 Ramchandra gave a phone call by saying that they
would get a gun and, therefore, A10 Shrikrishna along with A11
Dinesh Narkar, A12 Pratap along with a driver Raja went to Vilaye
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 207
village in a Tata Sumo from where they had procured a country made
handgun Art. 5 from A8 Surendra Panchal who gave his mobile number
as 9224770420. I had already discussed this aspect in the preceding
paragraphs while referring to the procurement of weapon. The
confessional statement further indicates that on the eve of 'Navratri',
A12 Pratap and A13 Rane used to threaten the builders and extort
money from them which they used to send to A1 Arun Gawali through
A9 Sandip Gangan and A15 Suresh Patil, after retaining some amount
with them. This is how, it appears that the organized crime syndicate of
A1 Arun Gawali was involved in continuing unlawful activities and
were committing organized crime for gaining undue economic benefits
by extorting builders, cable operators etc. The confession further
reveals that after few days, A12 Pratap and A13 Rane in their office
informed him that after firing two rounds from the said gun, only two
rounds were remaining. At the relevant time, the work of Akhil
Bhartiya Sena was being conducted from the said office situated at
Milan Complex, Building No. B/5, ground floor, Mulund. At that time,
A13 Rane had two mobile bearing numbers 9869148966 and
9833473756.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 208
189. He also confessed that in the month of OctoberNovember
2006, they laid a trap in the Sessions Court at Sewri, Mumbai to
eliminate one Solanki who had attacked A12 Pratap, but they could not
as the said Solanki did not attend the court on 23 dates. At that time,
A11 Narkar, Pradip Shinde, Mohammed Sharif and A10 Shrikrishna
were also present.
190. The confession further reveals that A13 Rane was quite
nervous because he lost the election of Corporation held in the month
on 1st February 2007 as he could only secure 379 votes. Kamlakar
Jamsandekar was elected in the said election as a member of Shiv Sena
from Ward No. 152. A13 Rane had contested the said election as a
member of Akhil Bhrtiya Sena of A1 Arun Gawali. Along with A10
Shrikrishna, A11 Narkar, A12 Pratap and others had canvassed for
A13 Rane.
191. In the second week of February 2007, when A10
Shrikrishna had been to the Travel's office of A13 Rane, A12 Pratap, in
the presence of A13 Rane asked A10 Shrikrishna as to whether he
would get two boys as a person is to be eliminated. A12 Pratap said
that he would pay Rs.2.5 lakhs for the said work. Upon which, A10
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 209
Shrikrishna agreed and on the very day, contacted A2 Vijay Giri with
whom he was acquainted, on telephone. On the following day, in the
morning, A2 Vijay Giri was called at Sakinaka junction near H.P. Petrol
Pump. Accordingly, A2 Vijay Giri on the next day at 10.00 a.m., met
A10 Shrikrishna along with A4 Narendra Giri. After some time, A3
Ashokkumar Jaiswar also came over there. A10 Shrikrishna called
A12 Pratap on mobile. After some time, A12 Pratap and A13 Rane
reached there on a motorcycle. A10 Shrikrishna introduced A2 Vijay
Giri to A12 Pratap. It was decided between A12 Pratap and A2 Vijay
that A12 Pratap would provide him a gun and knife along with Rs.2.5
lakhs and A2 Vijay along with his companion would commit the
murder of a person who would be shown by A12 Pratap. A12 Pratap
asked A10 Shrikrishna to show A2 Vijay, A3 Ashokkumar, A4
Narendra the office of Amit Travels. A12 Pratap and A3 Rane are the
partners in the travels business in the name and style as Amit Travels.
Accordingly, A10 Shrikrishna showed the office of Amit Travels to A2
Vijay, A3 Ashokkumar and A4 Narendra and asked them to come on
the next morning. On the next morning, all of them came to the office
of Amit Travels along with one more person i.e. A5 Anil Giril. As per
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 210
the instructions of A12 Pratap, A10 Shrikrishna took out a bag from
the drawer of the table in the office from which he took out the gun and
two cartridges which were brought from Rajapur, along with three
knives and gave it to A2 Vijay and A4 Narendra. At that time, A12
Pratap informed A2 Vijay and A4 Narendra that three rounds had
already been fired from the said gun Art. 5. The said article/weapons
were also seen by A3 Ashok and A5 Anil. Thereafter, A12 Pratap gave
Rs.10,000/ to A10 Shrikrishna for giving it to A2 Vijay and
accordingly, A10 Shrikrishna gave Rs.10,000/ to A2 Vijay. They were
asked to receive the bag containing the weapons on the next day. It is
further stated by A10 Shrikrishna in his confessional statement that at
that time, A2 Vijay had given his mobile No. 9224676768 and
9323709336.
192. At the relevant time, A10 Shrikrishna came to know for the
first time from A12 Pratap that the murder of Shiv Sena Corporator
Kamlakar Jamsandekar was to be committed and for that a “Supari”
from Dagdi Chawl which has been given by A6 Bhintade and A7 Surve
had been received by him.
193. On the next day, at about 9.30 a.m., A2 Vijay called A10
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 211
Shrikrishna on phone. He went to the office of Amit Travels. Since it
was closed, he brought a key of the office from the office of A13 Rane
and opened the office. As per the instructions of A12 Pratap, the bag
containing the weapons and Rs.10,000/ were given to A2 Vijay. A2
Vijay asked to take the motorcycle in the evening. However, on the
same evening, A4 Narendra took away 'Discover' motorcycle of A10
Shrikrishna. As per the instructions of A12 Pratap, A10 Shrikrishna
had again called A2 Vijay and his companion in the office on the next
day, who accordingly came to the office. After some time, A12 Pratap
and A13 Rane also came to the office. P.W. 4 Addu was also called by
A12 Pratap. At that time, A12 Pratap informed A2 Vijay, A3 Ashok,
A4 Narendra and A5 Anil that P.W.4 Addu would show the house and
the person who was to be eliminated. Accordingly, A4 Narendra, A5
Anil and P.W. 4 Addu left the office on the said motorcycle. A12 Pratap
asked A2 Vijay that he should carry the bag containing the weapons
everyday in the morning and bring it back and deposit it in the office till
the work is completed. Accordingly, A10 Shrikrishna used to open the
office of A13 Rane everyday. A2 Vijay used to receive the bag
containing the weapons and used to deposit it in the evening. This
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continued for about 15 days. However, they could not get an
opportunity to assassinate Kamlakar Jamsandekar. A2 Vijay, A4
Narendra and A3 Ashok had been continuously going to the area where
the deceased was residing. A12 Pratap got furious and started abusing
A10 Shrikrishna as the work could not be materialized even after so
many days and was ready to hire another group for assassinating
Kamlakar Jamsandekar.
194. Confessional statement further reveals that on 2.3.2007, at
about 5.00 p.m., A2 Vijay informed A10 Shrikrishna on mobile that he
had assassinated Kamlakar Jamsandekar and the motorcycle was kept
at Ghatkopar Narayan Nagar near a mosque. A10 Shrikrishna
immediately contacted A12 Pratap and informed him about the murder
of Kamlakar Jamsandekar, upon which, A12 Pratap asked A10
Shrikrishna not to take the motorcycle for some days.
195. On 3rd March, 2007, one Anita to whom A13 Rane was
treating like sister and who also used to sit in the office of Amit Travels,
called A10 Shrikrishna at her house and informed him that A2 Vijay
and A4 Narendra were continuously demanding the amount and,
therefore, she gave some amount to A10 Shrikrishna in a plastic bag
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 213
which he did not count. When A10 Shrikrishna contacted A2 Vijay, he
asked him to come to the gate of Borivali National Park. Accordingly,
A10 Shrikrishna delivered the amount to A2 Vijay at the gate of
Borivali National Park. This fact is corroborated from C.D.R. He further
confessed that thereafter, A2 Vijay and A4 Narendra intermittently
used to demand the balance amount of 'supari' from him, but he could
not because A12 Pratap and A13 Rane were behind the bars. In the
month of October, 2007 and thereafter, in the month of November
2007, A13 Rane and A12 Pratap were released on bail in the case of
murder of Kamlakar Jamsandekar. At that time, they used to sit in
Room No. 4, Crystal Court, Ram Baug, Powai which is the office of Amit
Travels. At that time, A12 Pratap told A10 Shrikrishna that he had
given Rs.10,000/ to A2 Vijay Giri. The certificate which I have already
discussed, has been duly prepared by P.W. 19 DCP Mr. Phadtare below
the confessional statement of A10 Shrikrishna. It is crystal clear that
there is an involvement of the organized crime syndicate headed by A1
Arun Gawali which commits organized crime from Dagdi Chawl. The
confession also reflects the involvement of A2 Vijay Giri, A3
Ashokkumar Jaiswar, A4 Narendra Giri and A5 Anil Giri A6 Sahebrao
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 214
Bhintade, A7 Sadashiv @ Bala Surve, A12 Pratap Godse, A13 Ajit
Rane, as well as A11 Dinesh Narkar and A8 Surendra Panchal. A role
played by each of these persons is reflected from confessional statement
of A10 Shrikrishna, which is a substantive evidence.
CONFESSIONAL STATEMENT OF A9 SANDIP @ SANDY GANGAN
196. The confessional statement of A9 Sandip Exh. 324 has been
recorded by P.W. 29 Brijesh Singh Exh. 320, who was working as a DCP,
Zone I at the relevant time. A9 Sandip had also not retracted his
confession before the CMM like A10 Shrikrishna. P.W. 29 DCP Mr.
Singh has testified that he was authorised to record the confessional
statement under the said Act. On 26.5.2008, he received a letter from
Joint C.P. (Crime) Mr. Rakesh Maria, nominating him to record
confession of A9 Sandip. The letter to that effect signed by Joint CP
Mr. Maria proved at Exh. 321. He, therefore, wrote a letter to the I.O.
P.W. 37 ACP Durafe, asking him to produce A9 Sandip before him on
27.5.2008. The said letter is at Exh. 322. Accordingly, A9 Sandip was
produced before P.W. 29 DCP Mr. Singh by PSI Dhamankar. The letter of
P.W. 37 ACP Mr. Durafe is proved at Exh. 323. P.W. 29 DCP Mr. Singh
asked the staff members to leave his chamber. He assured that there
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 215
was no police officer present in the chamber or around except his steno
who takes the dictation. He put some general questions to A9 Sandip
and ascertained that he was comfortable. P.W. 29 DCP Mr. Singh
introduced himself and informed A9 Sandip about the purpose of his
presence in the office. A9 Sandip stated that he wanted to make a
confessional statement voluntarily. P.W. 29 DCP Mr. Singh informed A9
Sandip that he was not bound to make a confessional statement and if
he makes a confessional statement, the same would be used as evidence
against him. P.W. 29 DCP Mr. Singh further asked A9 Sandip whether
anybody had offered him any inducement, promise or was there any
pressure for making a confession which has been answered in negative
by A9 Sandip. P.W. 29 DCP Mr. Singh also asked whether A9 Sandip
was subjected to any kind of illtreatment by investigating officer to
which he replied in the negative. P.W. 29 DCP Mr. Singh had also made
him aware that he was not in the custody of I.O. and if he did not want
to make a confession, he would not be sent back to the custody of
investigating agency. Thereafter, the witness put some questions to A9
Sandip to ascertain his educational background, age, languages known
etc. and was simultaneously recording the same. When P.W. 29 DCP Mr.
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Singh got assured that A9 wants to make a confession voluntarily, he
asked him whether he requires some time for reflection and he gave
time for 24 hours and told that he would be in his custody and none
from the investigating agency would meet him. He also offered A9
Sandip to have presence of his friends, relatives or advocate during
recording of his confession. A9 Sandip refused. P.W. 29 DCP Mr. Singh
had also told A9 Sandip that he can change his mind during the period
of reflection and it would not be obligatory on his part to make
confession. The said aspects have been recorded as Part I which was
read over to the accused who affirmed the same. He then signed each
page of Part I. P.W. 29 DCP Mr. Singh also signed each page thereof.
Part I is duly proved at Exh. 324.
197. P.W. 29 DCP Mr. Singh wrote a letter to the police station
Colaba, asking them to make separate arrangement of the lockup for
A9 Sandip. He asked Sr. P.I., Colaba police station to have medical
checkup of the A9 Sandip. The station diary entries in that regard
were made. The Colaba police station officer was asked to produce A9
Sandip again on 28.5.2008 at 2.30 p.m. Since P.W. 29 DCP Mr. Singh
was busy with other official work, A9 Sandip was produced before him
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 217
at 5.00 p.m. on 28.5.2008, pursuant to his oral instructions.
198. P.W. 29 DCP Mr. Singh asked the police party to leave his
chamber. He repeated all the questions which have been put to the A9
Sandip in Part I to ensure whether he wanted to make a confession
voluntarily. He asked A9 Sandip whether he still wanted to make a
confession and whether the time given for reflection was sufficient. A9
Sandip answered that it was sufficient time. He also asked him whether
he was subjected to any kind of illtreatment during the period of
reflection or anybody connected with the investigation met him which
he replied in the negative. P.W. 29 DCP Mr. Singh asked A9 Sandip
whether he was subjected to any inducement or threat or promise to
make a confession which he replied in negative. He again informed A9
Sandip that it was not binding upon him to make a confession and if he
makes it, it can be used as evidence against him. He also made him
aware that if he did not wish to make a confession, he would not be
sent back to the custody of the investigating agency. P.W. 29 DCP Mr.
Singh testified that he generally ascertained the state of well begin from
the appearance and body language of A9 Sandip. From the answers of
A9 Sandip to all his questions, the witness was satisfied that the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 218
accused wanted to make a confession voluntarily. Thereafter, P.W. 29
DCP Mr. Singh asked A9 Sandip as to which offence he wanted to make
confession of upon which A9 Sandip answered that he wanted to make
a confession in connection with the murder of Kamlakar Jamsandekar
and the activities of A1 Arun Gawali's gang. Accordingly, P.W. 29 DCP
Mr. Singh put questions to the accused and the answers given thereto
came to be recorded simultaneously in response to each question.
199. P.W. 29 DCP Mr. Singh further testified that he recorded the
statement of A9 Sandip in verbatim in his own language and thereafter,
it was read over to him and found to have been correctly recorded.
Then he signed each page of his statement. It was signed by P.W. 29
DCP Mr. Singh also which is recorded as Part II of the statement. It is
proved at Exh. 324A. After having been satisfied himself as to the
accused to have made confession voluntarily, P.W. 29 testified that he
appended his certificate in that regard. It bears his signature. It is
proved at Exh. 324B. The recording of statement was concluded late in
the evening. P.W. 29 DCP Mr. Singh sealed both the parts of the
confessional statement along with his certificate and prepared a letter to
the Chief Metropolitan Magistrate. Since it was late in the evening, he
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 219
sent back the accused to the lockup of Colaba police station. He also
directed the Colaba police station to follow his instructions given to
them before A9 Sandip was given them for being kept in the lockup for
reflection. P.W. 29 DCP Mr. Singh had also directed the officer of Colaba
police station to produce A9 before the CMM at 11 a.m. on the next
day. On the next day, the Colaba police station official came to his
office with A9 Sandip. They collected the cover containing
confessional statement and left for producing the accused before the
CMM. The CMM handed over A9 Sandip back to the custody of the
I.O. It is further in the evidence of P.W. 29 DCP Mr. Singh that the
report of the CMM along with the statement of the accused is marked at
Exh. 325. The witness refers to his letter to the I.O. asking him to get
back A9 to his custody after the purpose of production of the accused.
The said letter is at Exh. 326.
200. A perusal of Exh. 325, which is a confidential letter, addressed
by Mr. M.H. Belose, CMM, Mumbai to this Court dated 29.5.2008,
indicates that due to inadvertence or the clerical mistake, the name of
A10 Shrikrishna is reflected instead of A9 Sandip Gangan. However,
the subject of the letter does indicate that A9 Sandip was produced
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 220
before the learned CMM. The learned CMM perhaps, due to the heavy
workload, could not ascertain the contents of the letter which he
signed, this cannot be said to be an illegality, but just a clerical mistake,
for the statement of A9 Sandip annexed with the letter does indicate
that : “ek>k tckc eyk okp w u n k[ k foyk o rk s e k÷;k lk ax.;ki ze k. k s vkg s - eh
12 oh i; Z a r f' kdyk s vkg s - ej kBh e k>h e kr ` H k k ” k k vkg s - oj hy tckck
O;frfjDr eyk tkLr dkgh lk a x ko;kp s u kg h -” The confessional statement
was recorded as per his say and he does not want to say anything else.
Thus, the confession of both A9 and A10 Shrikrishna Babu Gurav were
accepted before the CMM and were not retracted.
201. Now, turning to the crossexamination of P.W. 29 DCP Mr.
Singh by the learned counsel Mr. Pasbola, the crossexamination is
mainly on a trivial technical aspects which does not shake the testimony
of this witness, which is quite natural, believable and inspires
confidence. For that matter, normally the police officer of such a high
rank would not indulge in acts which are detrimental to an individual
or which are against the established principles of law. P.W. 29 DCP Mr.
Singh in his crossexamination admits that earlier, he had recorded
confessional statements. He had studied the provisions of MCOC Act
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 221
visavis Cr.P.C., at that time. He admits that he questioned A9 Sandip
in verbatim on both days and also put some sundry questions though
those have not been recorded in Part I and II. He categorically admits
that he adhered to the rules of confession. He also states that as it was
not mandatory to ascertain the date of arrest of the accused he did not
put any questions to A9 Sandip to that effect. He also testified that it
was not necessary to ascertain as to when the accused first expressed
his desire to make confession and before whom he so expressed. He
denied the suggestion that he does not put any such questions in that
regard. It is again brought in the crossexamination that on both days,
he told the accused that if he did not make any confession, he would
not be sent back to the investigating agency. Though Part I and II are
silent in this regard, the admission brought in crossexamination by the
defence itself establishes that he did inform the accused that if he did
not make a confession, he would not be sent to the custody of I.O. As
regards the satisfaction of P.W. 29 DCP Mr. Singh, after noticing the
appearance and body language of the accused, he found that the
accused wanted to make a confessional statement voluntarily and he
mentioned the said fact in the certificate. He clarified that year 2007
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has been wrongly mentioned in the top of both Part I and II. He also
admits that it has wrongly been shown a date as 27.5.2007 in Part II,
which according to the witness is a typographical error which he did not
realize at that time. Thereafter, certain questions were asked about the
procedure when the letter is received in the office and about putting
inward number or outgoing correspondence etc. He admits that as per
Section 18(3) of the MCOC Act, the certificate of Part II does not
indicate time and date of recording of confessional statement.
However, he testified that there is record in the nature of station diary
entry of Colaba police station. He admits that he did not write the
certificate of Part II of the confession on the last page since it was a
page long, a page break was inserted. He did not feel that there was
enough space in Part II for certificate. The witness also admits that the
certificate is not in his own handwriting. He did not call upon the
accused to write down his confessional statement as he was not sure
whether the accused would properly write down the confessional
statement. He also admits that the last page of Part II indicate that the
accused himself read the confessional statement, but it is silent to state
that the confessional statement was read over to the accused. The fact
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remains that the accused himself read his confessional statement and,
therefore, even if there is no mention in the certificate, it would not be
hazardous in any manner. He also admits that when he wrote the
certificate, the accused was well before him, but he did not obtain his
signature below the certificate. He denied the suggestion that he
obtained the signature of the accused on his confessional statement
before the certificate was prepared. A9 Sandip had stated before P.W.
29 DCP Mr. Singh about the date on which he was arrested by the
Crime Branch, which is mentioned in the last paragraph of Part II of his
confessional statement. P.W. 29 DCP Mr. Singh also admits that there is
no mention in Part II that he asked the Colaba police station officer to
produce the A9 Sandip before the CMM at 11.00 a.m. on 29.5.2008
and to come back to his office thereafter i.e. on 29.5.2008, itself along
with the accused. Though there is no record to indicate that it was late
in the evening on 28.5.2008, there is nothing to disbelieve the
testimony of this witness on oath. The witness further admits that there
is no specific question put to the accused whether he was subjected to
illtreatment by the investigating agency, but the witness referred to
Question nos. 9 and 15 of Part I, which indicates that he was asked
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whether he had any complaint against the investigating agency or
against the person who arrested him, which he answered in the
negative and while answering Question no.15 that whether there was
any pressure or threat or undue influence or any allurement is given to
him which also has been denied by him. P.W. 29 DCP Mr. Singh has
denied that the accused did not make any confession on both occasions
i.e. either Part I or Part II and that the certificate was allegedly
furnished to him by the investigating officer which he simply signed.
He denied the suggestion that accused was physically assaulted during
the police custody and, therefore, he did not examine him in person.
202. During crossexamination, by the learned counsel Mr. Ponda,
a question was asked whether the witness has studied the relevant
provisions of the Evidence Act. The witness admits and says that he is
aware of the difference between admission and confession. He was
aware that under MCOC Act, he was empowered to record only
confessional statement and not any other statement. He recorded
confessional statement in the crime covering offences relating to murder
of Kamlakar Jamsandekar. Attention of P.W. 29 DCP Mr. Singh was
drawn and was asked to point out the matter from the narrative of Exh.
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324, indicating the role which he had played in commission of the
murder of Kamlakar Jamsandekar. P.W. 29 DCP Mr. Singh pointed out
some portion which is marked 'A' for convenience. He denied that this
marked portion 'A' does not amount to confession.
203. A perusal of the portion marked 'A' in the confessional
statement of A9 Sandip Exh. 324A indicates that in the beginning of
January 2007, at about 4 p.m., A15 Patil called him on the second floor
of Gitai Building of A1 Arun Gawali and gave him Rs.60,000/. He
asked him to give that amount to A12 Pratap who was waiting near a
Tea Kiosk. A9 Sandip, therefore, gave Rs.60,000/ to A12 Pratap. At
that time, A12 Pratap said that he was going to receive Rs.10 lakhs
from A6 Bhintade for the “work” of Kamlakar Jamsandekar (Murder).
It is pertinent to note that A9 Sandip resides in Dagdi chawl, right from
his birth. Even in his statement u/s. 313 of Cr.P.C., while answering
Question no.6, in his additional statement, he admits that he knows that
A1 Arun Gawali's office is situated on the ground floor of Gitai building
and further states that prior to his production before the Magistrate, he
was threatened by the police not to disclose anything before the court.
He also states that the Magistrate did not ask him anything about the
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confession. Before producing him in the court, the police were looking
at him angrily. It can be said that the said A9 Sandip is not speaking
the truth, for Chief Metropolitan Magistrate, cannot be disbelieved who
had affirmed that the accused had voluntarily given his confession. He
also states in his statement u/s. 313 of Cr.P.C. that he was brutally
beaten by the police. An electric shock was given and was threatened
not to disclose about it to the doctor. Nevertheless, it cannot be lost
sight of the fact that he had voluntarily given the confessional
statement before P.W.29 DCP Mr. Singh, wherein he had categorically
stated his role as well as the role of A1 Arun Gawali, A6 Bhintade, A7
Surve, A12 Pratap, A13 Rane and A15 Patil. It is also clear from the
confessional statement that in the year 1997, one Jitendra Dabholkar
and A1 Arun Gawali formed a political party known as 'Akhil Bhartiya
Sena'. He was appointed as a peon in the office and thereafter he was
working as a computer operator and was receiving salary of Rs.2500/
per month. Not only that, he had stated phone numbers of the office as
23015868 and 23091771.
204. It has been rightly argued by SPP Mr. Thakare that the
contention of the defence that the statement recorded by the DCPs are
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not confessions as they do not admit the guilt as regards commission of
murder of Kamlakar Jamsandekar is absurd. Indeed, the offences in the
case in which the accused have given confessions pertains to an
organized crime syndicate which is indulged in organised crime and in
view of the definition of the word “abet” given in Section 2(1)(a) of the
MCOC Act, 1999 with its grammatical variations and cognate
expressions includes the communication or association with any person
with the actual knowledge or having reason to believe that such person
is engaged in assisting 'in any manner' an organized crime syndicate
which if read with Sec. 3(2) leaves no scope to allege that the
statements given by the concerned accused are not confessions. As
such, the judgments relied upon by the defence in the case of Pakhala
Narayan Swamy vs. Emperor and others can be distinguished.
205. Going back to the confessional statement of A9, he had
stated before P.W.29 DCP Mr. Singh that the office bearers of Akhil
Bhartiya Sena and its workers used to supply information about the
construction of new structures and other matters to A1 Arun Gawali
which includes the names of the builders. Thereafter, the builders were
summoned in the ground floor of Gitai building where there is a special
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room known as “Bhajnachi Kholi”, which means room for chanting
“Bhajan” and there, A1 Arun Gawali along with his henchmen used to
extort moneys from them. He further stated that one 'Matka King'
Pappu Savla used to pay Rs.5 lakhs per month to A1 Arun Gawali.
They also used to collect money from the builders and merchants under
the pretext of 'Navratri Utsav' and other festivals through A15 Suresh
Patil and others to send it to A1 Arun Gawali. If anyone fails to give
money to A1 Arun Gawali, then he would be called in the room of
“Bhajan” where such persons used to be assaulted by sticks and belt.
206. A9 Sandip had further confessed that in the first week of
December, 2006, the office bearers of Akhil Bhartiya Sena, A12 Pratap
and A13 Rane had been to the office of Akhil Bhartiya Sena with two
aged persons, at about 2.45 p.m. A12 Pratap had a brown coloured
bag, admeasuring 1 x 1.1/2 feet with him. A12 Pratap and A13 Rane,
in the presence of A9 Sandip called A15 Patil down stairs by giving a
call on mobile. After some time, A15 Patil came down. A13 Rane
remained in the office probably because he is handicapped. A9 Sandip,
A15 Patil along with A12 Pratap along with those two aged persons
went to the second floor of Gitai building in the office of A1 Arun
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Gawali. A15 Patil had closed the doors from inside. At that time, A12
Pratap gave the said bag to A1 Arun Gawali by informing that it
contained 30 lakhs rupees. As per the direction of A1 Arun Gawali,
A15 Patil took the bag. A1 Arun Gawali, at the relevant time, in the
presence of A9 Sandip addressed those two aged persons by saying
“Jamsandekar Yanche Kaam Houn Jail, Tumhi Kalji Karu Naka”, means
the work of Jamsandekar will be done and they need not worry. After
getting such assurance, A9 Sandip along with those two persons and
A12 Pratap came to the ground floor in the office. Those two persons
were waiting at the gate when A12 Pratap informed A9 Sandip that
those two persons were A6 Bhintade and A7 Surve. Thereafter, A6
Bhintade and A7 Surve and A12 Pratap and A13 Rane left the said
place together.
207. Again, at the cost of repetition, A9 Sandip had stated that
in the month of January 2007, at about 4.00 p.m., at the instance of
A15 Patil, who called him at the second floor of Gitai building, paid Rs.
60,000/ to A12 Pratap who was standing outside a gate near a tea
kiosk. At that time, A12 Pratap informed A9 Sandip that he would get
Rs.10 lakhs from A6 Bhintade for the “work” of Kamlakar
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Jamsandekar.
208. If the confessions of A9 Sandip and A10 Shrikrishna are
juxtaposed visavis the other evidence of the witness discussed herein
before, it has been sufficiently established by the prosecution that an
amount of Rs.30 lakhs was given for the contract killing of Kamlakar
Jamsandekar meaning thereby a 'supari' by A6 Bhintade and A7 Surve
to A1 Arun Gawali through A12 Pratap and A13 Rane, who in turn
hired the shooters by taking aid and assistance of A10 Shrikrishna. No
doubt, all the accused depicted in the chart hereinabove, have
retracted their confessions before this court, but now the law is very
much settled in case of Mohd. Farooq Abdul Gafur and anr. vs. State
of Maharashtra reported in 2010 (3) AIR BOM R (S.C.) 551. In
paragraph 59, it has been observed and I quote thus:
Para 59: So far as conviction under MCOC is concerned, it is quite clear that conviction could be based solely on the basis of confessional statement itself and such conviction is also permissible on the basis of the confessional statement of the coaccused which could be used and relied upon for the purpose of conviction”.
Not only that, the Hon'ble Supreme Court in the said ruling
in paragraph 85, had observed and I quote thus :
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“The reasoning of the Hon'ble High Court that the confessional statement of the coaccused are not admissible in evidence because Section 313 Cr.P.C. had not been complied with is not tenable as there is nonobstante clause in Section 18(3) which precludes the application of Cr.P.C. and, therefore, the evidence of a coaccused is admissible as the piece substantive evidence”.
It is not the case that there is no compliance of Section 313 of Cr.P.C.
209. Keeping in mind the ratio laiddown by the Hon'ble
Supreme Court in the ruling cited supra while interpreting Section
18(3), it can verywell be said that not only by the confessional
statements of A9 Sandip and A10 Shrikrishna, even the confessional
statement of A15 Patil along with the confessional statements of A3
Ashokkumar Jaiswar, A4 Narendra Giri and A5 Anil Giri, which
corroborates each other in material particulars and which are quite
cogent and convincing, one can safely say that the organized crime
syndicate headed by A1 Arun Gawali hatched a wellplanned
conspiracy with full intention and knowledge to murder Kamlakar
Jamsandekar. It is crystal clear that A9 Sandip and A10 Shrikrishna
did not retract their confessions before the CMM and, therefore, there
is no room for doubt that those confessions were voluntary. Even the
confession of A15 Patil which I shall discuss hereinafter, corroborates
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the confession of A9 Sandip and A10 Shrikrishna.
CONFESSIONAL STATEMENT OF A15 SURESH PATIL:
210. P.W. 18 Dilip Sawant was DCP Zone II. He recorded the
confessional statement of A15 Patil. His evidence indicates that
pursuant to the letter of Joint Commissioner (Crime) dated 11.7.2008,
nominating him to record the statement of A15 Patil in DCB,CID C.R.
No. 69/2008. He recorded the confessional statement. The said letter
of Joint C.P. is proved at Exh. 233. P.W. 18 , DCP Mr. Sawant wrote a
letter to the I.O. of the case on 12.7.2008, directing him to produce the
accused on 13.7.2008. The said letter is proved at Exh. 234. He also
wrote a letter to Sr. P.I. police station Chembur, asking him to provide
guards, which is proved at Exh. 235. Accordingly, A15 Patil was
produced before him by PSI Dhamankar along with a letter Exh. 236.
Before his production, he was got medically examined. The certificate
of which is marked as X52 dated 13.7.2008. P.W. 18 DCP Mr. Sawant
ascertained from PSI Dhamankar about the arrest of the accused which
was made on 26.6.2008 and he was in police custody till 17.7.2008.
211. P.W. 18 DCP Mr. Sawant thereafter asked all the police staff
to leave his office and called his orderly Mr. Hemale to ensure that
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nobody would enter his chamber without his permission. During the
talk with the accused, he realized that he can converse with the accused
in Marathi and Hindu languages. On being asked, the accused denied
that there was any influence to give a confessional statement. He
ascertained that it was being given voluntarily, after putting him certain
questions. P.W. 18 DCP Mr. Sawant introduced himself and thereafter,
asked about the details of the accused such as his name, age etc. The
accused gave his name as Suresh Raghunath Patil alias 'Mothi Bank' (Big
bank), resident of Dagdi chawl, Byculla East. He is 10th standard failed.
He volunteered that he wanted to give a confession with respect to the
murder of deceased Kamlakar Jamsandekar and the activities of A1
Arun Gawali gang. P.W. 18 DCP Mr. Sawant warned him that he is not
bound to give the confession as the same would be used as evidence
against him. After ascertaining the voluntariness by putting some
questions, he realised that the A15 Patil really wants to give a
voluntary confession. A15 Patil has also declined to take legal advice
or presence of his friends or relatives etc. Thereafter, A15 Patil was
given 24 hours' time for reflection. The Part I was accordingly prepared
which was signed by both A15 Patil and P.W. 18 DCP Mr. Sawant.
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212. P.W. 18 DCP Mr. Sawant thereafter, placed the accused in the
custody of Sr. P.I. of Chembur police station viz. Mr. Pathade with a strict
instructions not to allow anyone to meet the accused in the lockup of
police station Chembur. The said letter is at Exh. 238. He directed the
PI Pathade to get the accused medically examined. The medical report
accordingly was tendered and marked as X53. The copy of the written
instructions is at Exh. 239. P.W. 18 DCP Mr. Sawant also instructed the
Sr. PI to remove all other accused from the lockup of the Chembur
police station and to detain them at Ghatkopar police station. The
instructions were followed. The true copy of the lockup register dated
13.7.2008 is marked as X54. Another medical report is at X55 and the
station diary entry regarding medical examination report is marked at
X56.
213. A15 Patil was produced before P.W. 18 DCP Mr. Sawant on
15.7.2008 at 12.30 p.m. by PI of Chembur police station with a letter
which is marked as Exh. 240. P.W. 18 DCP Mr. Sawant again ensured
that except him and his orderly, nobody was present near his chamber
or nobody would enter the chamber. On being asked, A15 Patil again
reiterated that he wanted to give the confession voluntarily, even after
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 235
giving sufficient time for reflection. A15 Patil affirmed that neither he
was pressurized nor induced to give a confessional statement. He was
again informed that if he confesses, that would be used as evidence
against him. A15 Patil affirmed that he knew the consequences of
making confession. He made it clear that he wanted to give a
confessional statement as he was repenting . He refused to take
assistance of his relatives or legal advice during his confession. After
getting satisfied, P.W. 18 DCP Mr. Sawant recorded the confession of
A15 Patil, who according to this witness, confessed his role of
collecting money on behalf of the gang and also confessed to the
murder of Kamlakar Jamsandekar. The confessional statement was read
over to him. A15 Patil himself read his confessional statement which
he found to be correct. Thereafter, he put his signature on each page
and so also by P.W. 18 DCP Mr. Sawant. The said confessional statement
is proved at Exh. 241.
214. P.W. 18 DCP Mr. Sawant prepared a certificate about his
satisfaction which is in his own handwriting with signature and is
marked as Exh. 241A, which is appended to the confessional statement.
He testified that he placed confessional statement in a cover and sealed
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 236
it. He addressed a letter to the CMM, which is at Exh. 242. Thereafter,
he handed over the custody of A15 Patil along with the sealed cover for
production before the CMM. He instructed PI Pathade to take the
accused in veil while producing before the CMM. The letter to that
effect is at Exh. 243. P.W. 18 DCP Mr. Sawant informed the I.O. in
writing about the completing the procedure of recording confessional
statement and handing over the accused to PI Dhamankar. The office
copy of the said letter is marked at Exh. 244. The station diary entry of
Chembur police station is marked X57. The report of CMM is marked
at Exh. 245.
215. The confidential letter of CMM dated 15.7.2008 Exh. 245
reveals that the accused has retracted his confession by stating that his
signatures were obtained on written papers and that though he has
been residing in Dagdi chawl with his parents right from his childhood,
he is absolutely not concerned with the A1 Arun Gawali's gang or his
“Akhil Bhartiya Sena” and its members nor he knew anything about the
murder of Kamlakar Jamsandekar.
216. P.W. 18 DCP Mr. Sawant was extensively crossexamined by
Mr. Ponda, learned counsel for A1. P.W. 18 DCP Mr. Sawant has
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admitted that he did not ask police inspector as to when A15 Patil first
expressed his desire to make confession. He admits that he had
knowledge about the arrest of the accused on 26.6.2008. He also
admits that I.O. did not tell him that the accused had made an
application on 26.6.2008, informing that he did not want to make
confession. Thereafter, certain questions were asked about the manner
in which the letters are received in the office, how they are
acknowledged, who put the signature and date etc., which are not very
material. However, the witness admits that after receipt of a letter, his
office puts a rubber impression only on the document received and not
on the copy thereof on which his staff signs acknowledging the receipt
of the said letter. He also admits that the endorsement on Exh. 237 and
other endorsements on Exh. 237A are quite different with each other.
However, he denied that the letters at Exh. 234 and 234A have been
fabricated. Thereafter, the learned counsel put certain questions as
regards the provisions of MCOC Act, TADA and Cr.P.C. as well as the
Law of Evidence. He also admits that the matter on page nos. 1 and 2
before recording of Part I commenced, has been noted down by him on
his own after making the accused comfortable by putting him some
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formal questions such as his name and as to whether he has been
pressurized etc. Merely because there is no record kept by the witness
about the preliminary questioning, does not ipsofacto render the
retraction of confessional statement of A15 Patil, inadmissible, for even
retraction should be voluntary. He also denied the suggestion that
before recording the confessional statement, A15 Patil had been
supplied with a draft of questions in advance which were the copies of
the questions put to A10 Shrikrishna and A11 Narkar which he has
denied. He denied both these parts have been copied down on the
readymade parts supplied to him by the I.O. His evidence further
reveals that when he came to know that accused had retracted his
confessional statement before the CMM, he got surprised. He denied
that he had obtained the signatures of A15 on readymade Part I and
Part II and, therefore, A15 Patil had so stated before the CMM.
217. While crossexamining him on behalf of accused nos. 1, 2, 6,
7, 11, 15 and 20, learned counsel Mr. Pasbola has also put certain
technical questions e.g. the question does not reflect the exact time
given to the accused for reflection, which the witness admits. He also
admits that in fact, he wanted to give more than 24 hours for reflection
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 239
to A15 Patil. P.W. 18 DCP Sawant further admits that page no. 1 of Part
I does not bear signature of the accused on either side and so also on
page nos. 2 to 4 of Part I, front side and on page nos. 1 to 5 on front
side of Part II. He further admits that at the end of narrative of his
confessional statement, A15 Patil told him that he had initially refused
to make a confessional statement, but the witness did not question him
in that regard. At this stage, again it would be apposite to place
reliance of the judgment in the case of Mohd. Farooq Abdul Gafur
and anr. vs. State of Maharashtra reported in 2010 (3) AIR BOM R
(S.C.) 551. In paragraph 56, it is held by the Hon'ble Supreme Court
which reads thus:
Para 56: “The High Court disbelieved the aforesaid confessional statements of accused nos. 5 & 6 on the ground that the said confessional statements were inadmissible in evidence thereby it reversed the findings of the trial court. The High Court came to the aforesaid conclusion on the basis that there is no evidence to show that any preliminary warning was given prior to the recording of warning was given prior to the recording of the confessional statement, the same was inadmissible in evidence”.
Para 59: “So far as conviction under MCOCA is concerned, it is quite clear that conviction could be based solely on the basis of the confessional
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 240
statement itself and such conviction is also permissible on the basis of the confessional statement of the coaccused which could be used and relied upon for the purpose of conviction. In the case of State v. Nalini, (1999) 5 SCC 253, it was held by this court in the context of Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (now repealed), which is pari materia with Section 18 of the MCOCA that the evidence of a coaccused is admissible as a piece of substantive evidence and in view of the nonobstante clause, the Cr.P.C. will not apply”.
218. Thus, the law is quite clear as in the case in hand since there
is nothing on record to say that the confessional statement of A9
Sandip and A10 Shrikrishna are not voluntary, they can be made
admissible and conviction can be based on the confessional statement of
the accused and also against the coaccused in view of the ratio laid
down by the said ruling. Even minor technicalities about the form of
certificate, absence of signatures on the some part of the statement
would not affect otherwise cogent confessional statement.
219. A perusal of Part I of the confessional statement of A15
reveals that P.W. 18 DCP Mr. Sawant has duly followed the procedure
enunciated in Section 18 of the MCOC Act.
220. Now, coming to the second part which reveals that A15
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Patil was also known as 'Mothi Bank' is connected with A1 Arun Gawali
since 1997 as he was working as a gateman/watchman at the Dagdi
chawl and used to permit the visitors to enter the Dagdi chawl. He
states that one Sada Pavle and Vishwanath Hinge appointed him as a
Mathadi labour where he used to get salary without work. In lieu of
that, he used to do private work of Sada Pavle. Subsequently, he started
working for the gang of A1 Arun Gawali since 2001 and was looking
after the financial affairs of the gang. A1 Arun Gawali used to pay him
Rs.15,000/ and some extra pocket money and, therefore, he was also
known as 'Mothi Bank' (Big bank). He specifically states that A1 Arun
Gawali and the members of his gang used to extort money from
builders and cable operators. Those who used to refuse, were called in
the ground floor room known as “Bhajnachi Kholi” and were
threatened. Motorcycles and some other vehicles as well as
automobiles were purchased in different names for the use of members
of the gang. The members of the gang of A1 Arun Gawali as well as
the office bearers of Akhil Bhartiya Sena used to collect information
which they used to supply to the leader and thereafter, gangster
Motiram Mahadik, resident of Mandar Niketan Chawl, Byculla used to
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collect extortion money and deposit it with A15 Patil. A20 Sunil Ghate
and one Babu Dighe used to collect money from the cable operators of
Mazgaon area and used to deposit with A15 Patil. He further states
that the Matka operator Pappu Savla and his partner Pankaj Shah,
Vinod Bhagat and one Jaya Bhagat who operate Kalyan Matka, used to
pay money. Pappu Savla used to pay Rs.5 lakhs per month and Jaya
Bhagat used to pay Rs.1.50 lakh to A1 Arun Gawali gang. One
Prabhakar Raut of Arun Gawali gang and one Suhas Roge used to
collect money from Pappu Savla and Jaya Bhagat. A15 Patil used to
keep the record in diaries about the receipt of extorted amount along
with one Vishwanath Hinge, P.W. 25. P.W. 25 Hinge though has turned
hostile, who is admittedly a resident of Dagdi chawl, admitted that he
signed the panchanama Exh. 183 in a normal state. I shall discuss his
evidence later on. A15 Patil further states that the amount collected
by extortion used to be utilised for the family members of the gang after
the death of a member. The salary of the security guard and other
office bearers of Akhil Bhartiya Sena was also paid out of the said
amount. All the entries were made in the register which were checked
by A1 Arun Gawali intermittently. He states that whenever A1 Arun
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Gawali used to be in Jail, A20 Sunil Ghate used to take his position.
221. He further states that in the beginning of December 2006,
A1 Arun Gawali informed him that A12 Pratap and A13 Rane were
going to visit Dagdi chawl along with A6 Bhintade and A7 Surve, for
A6 Bhintade and A7 Surve had given a 'supari' to kill Kamlakar
Jamsandekar, a Corporator of Shiv Sena. Accordingly, in the second or
third week of December 2006, around noon, A12 Pratap and A13
Rane along with A6 Bhintade and A7 Surve came to the office of Akhil
Bhartiya Sena at Gitai building. At that time, A9 Sandip was present
who is a computer operator. Except A13 Rane, all of them went to the
fifth floor. A12 Pratap had a brown coloured bag. A15 Patil closed the
door of the office. A12 Pratap gave the said bag to A1 Arun Gawali by
stating that it contained Rs.30 lakhs. A1 Arun Gawali asked A15 Patil
to accept the bag and at the same time, A1 Arun Gawali assured A6
Bhintade and A7 Surve that the 'work' of Jamsandekar would be done
and further said that they should not worry. (“Jaamsandekar Yanche
Kaam Honun Jayeel, Tumhi Kalji Karun Naka”). Thereafter, A6
Bhintade, A7 Surve, A9 Sandip and A12 Pratap left the Dagdi chawl
and A15 Patil kept the said bag in a cupboard. At that time, A1 Arun
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Gawali instructed A15 Patil that if A12 Pratap or A13 Rane demand
some amount, he should pay them. Accordingly, in the month of
January, 2007, in the first week, as per the instructions of A1 Arun
Gawali, A15 Patil had paid Rs.60,000/ to A12 Pratap through A9
Sandip. He further states that in the month of March, 2007, A12
Pratap and A13 Rane were arrested in case of the murder of Kamlakar
Jamsandekar. At that time, as per the instructions of A1 Arun Gawali,
A15 Patil had paid Rs.20,000/ to the mother of A12 Pratap. After the
arrest of A1 Arun Gawali in April 2008, A15 Patil states that all of
them started leaving Dagdi chawl. As per the instructions of A20 Sunil
Ghate, all the diaries containing the details of accounts and other
papers, muster roll as well as two mobiles of A1 Arun Gawali were kept
in a bag and it was given to P.W. 10 Ankush Gharkar, resident of Gitai
building, 1st floor, Dagdi Chawl which he concealed. Thereafter, A15
Patil left Mumbai and went to Pune and thereafter to Aurangabad.
Later on he was arrested at Sangli. He further states that due to the
terror of A1 Arun Gawali and as per the instructions of advocate, he
had initially stated in the court that he was not ready to give a
confessional statement, but he is now repenting for his earlier statement
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 245
made before the court and, therefore, voluntarily giving the statement.
He signed the same along with P.W. 18 DCP Mr. Sawant.
CONFESSIONAL STATEMENT OF A11 DINESH @ DINYA LAXMAN NARKAR
222. P.W. 20 DCP, Yadav Pandu Dhoom, Exh. 260, recorded
confessional statement of A11 Narkar. P.W. 20 Mr. Dhoom was DCP,
Fort Zone. He testified on oath that he received a letter of Joint
Commissioner of Police Mr. Rakesh Maria Exh. 261 to record the
confessional statement of A11 Narkar. He wrote a letter to P.W. 37 ACP
Durafe Exh. 262. On the next day, A11 Narkar was produced before
him by the I.O. along with letter Exh. 263 which bears the signature of
ACP Mr. Durafe. He contacted Sr. P.I. of Yellow Gate police station on
phone and asked them to send escort party to his office. PSI
Dhamankar produced the A11 Narkar in his chamber. After
ascertaining that there is nobody except his computer operator, he
talked about the background of A11 Narkar and put him certain
questions. P.W. 20 DCP Mr. Dhoom also introduced himself and asked
him that whether he wants to make a confessional statement
voluntarily. He also told A11 Narkar about his rank and found the
accused was comfortable conversing in Marathi language. He also
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made him aware that he was not concerned with investigation. He also
ascertained that the accused was not under pressure, inducement or
promise by anyone. He also informed the A11 Narkar that he is not
bound to make confession and if he makes so, it can be used as the
evidence against him and he might be convicted. A11 Narkar siad that
he was aware about the same, but due to repentance, he wants to make
a confessional statement. P.W. 20 DCP Mr. Dhoom put 14 questions to
A11 Narkar which were answered by the A11 Narkar. A11 Narkar
stated before P.W. 20 DCP Mr. Dhoom that he wants to make a
confession in respect of the murder of a Corporator Kamlakar
Jamsandekar. the accused declined the offer of presence of his
relatives, friends or advocate during the course of recording the
confession. The accused was also made aware that he would be given
24 hours' time for reflection and to think over his decision to make a
confession. The print out of the said recording was taken out. It was
read by the accused and thereafter, each page of the same was signed.
P.W. 20 DCB Mr. Dhoom had also put his signature accordingly. The Part
I is marked as Exh. 264.
223. P.W. 20 DCP Mr. Dhoom gave a written order to the officer of
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Yellow Gate police station to keep the accused in separate lockup and to
ensure that noone would meet him without his permission. The
endorsement to that effect is at Exh. 264A. Thereafter, the custody of
the A11 Narkar was handed over to API Kamble of Yellow Gate police
station and a letter was addressed to Sr. PI of the police station to
ensure that no person would meet A11 Narkar in the lockup without
his permission. The acknowledgment of the said letter is at Exh. 265.
P.W. 20 DCP Mr. Dhoom had obtained the certified copy of the station
diary entry of 5.6.2008, indicating compliance of his directions by the
Yellow Gate police station. It is marked at Exh. 267.
224. A11 Narkar was produced before him on 5.6.2008 at 2.00
p.m. by PSI Thorat and the staff attached to Yellow Gate police station.
all of them asked to leave his chamber. Thereafter, P.W. 20 DCP Mr.
Dhoom along with A11 Narkar were present in his chamber and the
computer operator. P.W. 20 DCP Mr. Dhoom asked whether the time of
24 hours given to him was sufficient for reflection which he answered in
the affirmative. P.W. 20DCP Dhoom enquired with A11 Narkar
whether the police officers had pressurized him to make a confession,
A11 Narkar stated that still he wanted to make a confessional
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 248
statement and denied to have pressurized or promised by anybody to
make a confessional statement. He again made him aware that it was
not obligatory on his part to make a confession. It was informed that
the confessional statement can be used as evidence against him and he
might be convicted. The accused refused to take assistance of his
relatives or advocate during his confession. The accused again stated
that since he is repenting, he wants to confess. Accordingly, all this has
been recorded simultaneously in the form of question answer and
thereafter, the confessional statement of A11 Narkar was recorded. Its
print out was taken out which was read by the A11 Narkar and
thereafter, put his signature on each page and so also by P.W. 20 DCP
Mr. Dhoom. The said Part II is marked as Exh. 268.
225. The learned counsel Mr. Ponda for A1 objected exhibiting
the said statement on the ground that it is not a confession and at the
most, information relating to the murder of Kamlakar Jamsandekar. To
some extent, it is true that the tenor of language of confessional
statement of A11 Narkar is more or so is an information about the
murder of Kamlakar Jamsandekar. The prosecution has not succeeded
in bringing on record sufficiently through the evidence of any of the
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witnesses that A11 Narkar was in any way connected with the murder
of Kamlakar Jamsandekar.
226. P.W. 20 DCP Mr. Dhoom thereafter, testified that he sealed
both Part I and Part II and drafted a letter to the CMM Exh. 269. The
custody of the A11 Narkar is given to PSI Thorat with instructions to
produce A11 Narkar before the CMM. The office copy of the letter is at
Exh. 270. Report of the CMM is at Exh. 271.
227. The confidential letter Exh. 271 by the CMM, addressed to
this Court indicates that A11 Narkar has retracted his confession by
stating that his signatures were obtained on handwritten papers in
Hindi.
228. During cross, the witness admits that he got surprised when
he learnt that A11 Narkar had retracted his confessional statement
before the CMM by stating that he did not make any confessional
statement before P.W. 20 DCP Mr. Dhoom. He states that he enquired
with the A11 whether he could make his confessional statement in his
own handwriting upon which, A11 Narkar stated that his handwriting
was not good. He admits that he did not record this fact in Part I or
Part II or anywhere else. He also admits that he did not make any
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efforts to secure mechanical device to record the confessional
statement. Thereafter, certain questions were put about the office
procedure in receiving the letter, putting the rubber impression, making
initials etc. Thereafter, the witness was confronted with document
marked as Exhs. 263, 263A, 265, 266, 267 and 270 by suggesting that
those documents are fabricated later on which he denied. He admits
that he did not make any record of questions which he wanted to put on
the production of A11 Narkar before him on 4.6.2008. He put those
questions as occurred to him in verbatim. The witness in paragraph 20
admits that he was empowered to record statement only if it amounts to
a confession and not otherwise. As already stated, this accused has not
participated in the conspiracy of murder of Kamlakar Jamsandekar in
any manner and, therefore, his confession to that effect cannot be said
to be a confession in view of Section 18 of the MCOC Act, 1999. I,
therefore, sincerely feel that confession of A11 Narkar cannot be
accepted as his confession. However, from the other evidence discussed
hereinbefore, his confessional statement can be considered to the
extent for procurement of the handgun Art. 5 from village Vilaye which
was given by A8 Surendra.
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229. The prosecution has also examined P.W. 5 Pradip Shinde
Exh. 168, who worked with a security agency viz. “Captain Security”.
He is a friend of A11 Narkar. A11 introduced him with A12 Pratap,
A13 Rane and A10 Shrikrishna. He has identified all of them sitting in
the dock. The relations of this witness with these three accused are
friendly. Occasionally, A11 Narkar used to take him to Sakinaka to
meet A12 Pratap, A13 Rane and A10 Shrikrishna. On 34 occasions,
A10 Shrikrishna, A12 Pratap and A13 Rane had been to Sewri Court.
According to this witness, one Solanki was A12's foe who used to
attend the Sewri Court. A12 Pratap had planned to eliminate Solanki
and, therefore, these four accused used to go to Sewri Court. However,
their plan could not be materialized as on all those dates, the said
Solanki did not attend Sewri Court.
230. P.W. 5 Shinde testified that during the Corporation elections
of 2007, he had supplied 78 boys for A13 Rane's campaigning. At that
time, A12 Pratap paid him Rs.2500/, upon which, he told A12 Pratap
that the amount was inadequate. P.W. 12 Pratap thereupon gave him an
offer of Rs.2 lakhs and a revolver for eliminating Kamlakar
Jamsandekar who was elected as a Corporator from the same ward in
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2007. P.W. 5 Shinde told A12 Pratap that he would let him know
about the offer later on. On the same day, P.W. 5 Shinde met A11
Narkar. He apprised A11 Narkar about the offer given by A12 Pratap
upon which, A11 Narkar asked him to turn down the offer as the
amount offered was not adequate. A11 Narkar also told this witness,
he too had turned down the offer.
231. The learned counsel Mr. Rasal for Accused nos. 8, 12, 13
and 21 substantiated the evidence of this witness by eliciting from his
mouth that when this witness learnt from the newspaper about the
murder of Kamlakar Jamsandekar, they realized that this was the very
person for whom A12 Pratap has given an offer. The witness deposed
that it did not come to his mind that he should approach the police and
report about the offer given by P.W. 12 Pratap. This is ridiculous for no
person who had refused the offer for committing murder would
approach the police and to land himself in trouble. Similarly, questions
asked asked to some of the prosecution witnesses by the defence as to
why they did not approach the police. It is of common knowledge that
in our country, even a bona fide complainant aggrieved with something
does not easily approach the police for experience of common man is
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not very satisfactory. The crossexamination further reveals that the
offer to kill Jamsandekar for a consideration of Rs.2 lakhs is an
omission though the defence has tried to bring it in the form of
omission on record. It further reveals that while A12 Pratap gave him
an offer to kill Jamsandekar, he did not enquire with him for the reason
behind it. The crossexamination further reveals that this witness does
not remember the exact date on which four of them had been to Sewri
Court to kill Solanki. However, it can be verywell inferred that they
had been to Sewri Court to kill one Solanki. So long as is friendly
relations with A13 Rane are concerned, it proved to be an omission.
However, interestingly, it has been again admitted by this witness in
cross that the offer to kill Kamlakar Jamsandekar came from A12
Pratap, was one or one and half month prior to his murder. It fortifies
the fact that A12 Pratap had first gave an offer to A11 Narkar and then
to this witness which is also corroborated from the confessional
statement of A11 Narkar Exh. 268 wherein he had stated before DCP
that in the month of January 2007, A12 Pratap and A13 Rane asked
him whether he was accepted the offer of killing Kamlakar Jamsandekar
upon which he refused and thereafter, P.W. 5 Shinde informed him
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about the said offer was given by A12 Pratap which this witness
refused.
232. During his cross by Mr. Pasbola, he admits that he was
arrested and prosecuted in an offence for stabbing in which he has been
acquitted. He was a prisoner in Yeravda Jail for 89 months. He denied
that he belongs to Bala Surve's gang. The defence has succeeded in
bringing on record that antecedents of this witness from which, it is
apparent that he is a criminal indulged in various activities in the past.
The witness denied the suggestion that when A12 Pratap gave him Rs.
2500/ at that time itself, he offered Rs.2 lakhs to the witness and a
revolver to kill Kamlakar Jamsandekar. Certain minor omissions are
brought on record with respect to the payment of Rs.2500/ by A12
Pratap for supplying the boys during the election campaign of A13
Rane. At the end of Part II of his cross, the fact that A12 Pratap gave
him an offer of Rs.2 lakhs for eliminating Kamlakar Jamsandekar and
also he had paid him Rs.2500/, has been fortified. The fact that A11
Narkar had turned down the offer on the ground of inadequacy of the
consideration and this witness had also turned down the said offer for
the same reason, is proved to be an omission only with respect to
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inadequacy of consideration and not otherwise. The fact remains that
A12 Pratap did offer Rs.2 lakhs for eliminating Kamlakar Jamsandekar.
233. During reexamination by the learned SPP Mr. Thakare, it is
elicited from this witnesss that A12 Pratap had paid him Rs.2500/
after the Corporation election was over and further he has been
acquitted in all the criminal matters. During further cross by Mr.
Pasbola, the learned counsel, the witness denied the suggestion that
whatever he has stated in the examinationinchief in relation to the
questions put to him in reexamination, was untrue.
CONFESSIONAL STATEMENT OF A3 ASHOKKUMAR JAISWAR:
234. P.W. 17 Vinaykumar Chaube Exh. 220, was working as a
Regional Passport Officer, Mumbai at the time of his evidence, which is
in the rank of DIG. In 2008, he was DCP, Zone IV, which is equivalent to
the SP. He too received a letter of Joint C.P. of Crime for recording the
confessional statement of A3 Ashokkumar Jaiswar which is at Exh. 221.
By letter Exh. 222, he directed the I.O. to produce A3 Ashokkumar
before him on 28.5.2008. He also wrote a letter to PI Bandra to keep
the escort ready on 28.5.2008. The copy of the letter is at Exh. 223.
235. A3 Ashokkumar was produced before him on 28.5.2008
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 256
along with a letter Exh. 224. He testified that he took the accused in
custody and then asked the officer Rodrigues who had brought the
accused to go back to his office. A letter was written to the IO in that
regard which is marked at Exh. 225. As has been done by the earlier
DCPs., same procedure was followed by P.W. 17 by asking the A3
Ashokkumar as to which language he would be comfortable, whether he
wanted to make confession voluntarily and whether he was pressurized
or offered any promise to make a confession and that nobody was there
except this witness. He assured him that now he is not in the custody of
the IO. A3 Ashokkumar was comfortable with Hindi language. He also
asked preliminary questions and realized that A3 wanted to make a
voluntary confession. He was also warned that he is not bound to make
it and if he does so, it can be used as evidence against him. The print
out was taken which is the Part I of the statement. It was read over to
the A3, which was affirmed by him and thereafter, signed on each page
of Part I. Similarly, P.W 17 Vinaykumar had signed all the pages.
Thereafter, he was given 24 hours time for reflection, interalia, taking
his medical examination and to keep him in a separate lockup at police
station Bandra. These directions were given to officer Mr. Patil. He was
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also directed to ensure that no police officers of DCB,CID meets A3
Ashokkumar in the lockup.
236. As such, he was again produced on 29.5.2008 at 2.30 p.m.
Office copy of the said letter with signature of officer Mr. Nitin Patil is
marked at Exh. 226. Again, after ensuring that except stenographer
and this witness, there was nobody else, P.W. 17 Mr. Vinaykumar again
put the questions to ascertain whether the confessional statement was
made voluntarily to which accused answered in the affirmative. The
accused denied to have been threatened or promised by anybody. The
24 hours' time was sufficient. the accused knew that the confession can
be used as evidence against him. The A3 Ashokkumar refused to have
assistance of his friends or legal advice during his statement. On being
asked, A3 said that due to repentance, he wanted to make a
confessional statement. Thereafter, A3 Ashokkumar narrated the
incident. P.W. 17 Mr. Vinaykumar testified that during recording of his
confessional statement, whenever required, he would take clarification
from him. A3 Ashokkumar gave all the details since beginning as to
how he was contacted for the purpose of committing the murder of
Corporator. After the statement was recorded, it was read over to him
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 258
and was called upon to state whether it was as per his narration. A3
Ashokkumar answered in the affirmative. A printout was taken and the
signature of A3 was obtained on each page. It was also signed by P.W.
17 Mr. Vinaykumar. P.W. 17 Mr. Vinaykumar further deposed that A3
Ashokkumar had read his confessional statement. It is marked as Exh.
227 (colly.).
237. Thereafter, P.W. 17 Mr. Vinaykumar prepared a
memorandum as per MCOC Rules and a certificate which is marked as
Exh. 227A. The witness was asked a question by SPP as to why did he
not put his certificate on the last page margin of Exh. 227 and why he
did type the certificate instead of making it in his own handwriting in
which, P.W. 17 Mr. Vinaykumar replied that the confessional statement
was taken out for being read over to the witness (it should have been
'accused' instead of 'witness'). He further said that moreover, the space
on last page was less to accommodate and, therefore, he made a
certificate on a separate sheet. Since the entire record of confessional
statement was type written on computer, he preferred to have the
certificate type written.
238. P.W.17 Mr. Vinaykumar then prepared a letter addressed to
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 259
the CMM which was sealed in a cover and was given to Nitin Patil, who
was directed to produce the A3 Ashokkumar along with the sealed
envelope before the CMM for confirmation of the statement. The copy
of the said letter is at Exh. 228 and the copy of the letter addressed to
Nitin Patil is at Exh. 229. A3 Ashokkumar was produced before the
CMM on the next day, because recording of the statement was over by
7.30 p.m. and some more time was required for other compliance. He
instructed the IO to get back the custody of A3 Ashokkumar to him
after the purpose of the production of the accused was over. The office
copy of said letter is at Exh. 230.
239. His evidence indicate that the questions were formulated by
him on his own. Mother tongue of P.W. 17 Vinaykumar is Hindi. He
testified that he put the questions to A3 Ashokkumar which he found to
be important. The questions not forming Part I were less important
and, therefore, they are not found therein. In second part, the witness
had asked about 11 questions to A3. He denied the suggestion that on
the next day, he was supplied with the questions and answers thereto
and then he had recorded the same. He also denied that he was
supplied with the draft of the socalled confessional statement of A3
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Ashokkumar and then he prepared the statement based on that. The
witness admits that as a police officer, he knew that at times, the
accused retract their confessions. He is also aware that the object of the
provisions of producing the accused before the CMM is to ascertain as
to whether accused voluntarily made a confessional statement and
whether in fact he made such a statement. When he realized that the
accused had stated before the CMM that he had not made any such
confessional statement, he was surprised. He also denied the
suggestion that he and other officer compelled A3 Ashokkumar to put
the signature on readymade papers.
240. The learned counsel Mr. Pasbola crossexamined P.W. 17 Mr.
Vinaykumar wherein he admits that Part I and II did not indicate that he
questioned the accused about the date of his arrest. Further, cross
examination mainly relates to the correspondence between Joint C.P.
and P.W. 17 Mr. Vinaykumar and about various instructions he had given
to police officer Mr. Patil while handing over the custody of A3 and also
about the directions to be taken while he is in custody at Bandra police
station and about the other instructions given to the Sr. PI of police
station Bandra. He admits that he did not personally feel that he should
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 261
examine the body of the accused when he was produced before him on
both the days. According to P.W. 17 Mr. Vinaykumar since A3 was
already medically examined and, therefore, he did not feel it necessary
to examine him again. He admits that he had not paid visit to the
lockup during the stay of A3 over there. He further admits in cross
examination that he took 1520 minutes to record the questions put to
A3 Ashokkumar on second day i.e. on 29.5.2008 and had took 5 and ½
hours to record the entire Part II. Around ten times, he sought
clarification from A3 Ashokkumar during recording of the main
confessional statement. These questions suggest that there was no draft
questionnaire given to the witness as suggested by the learned counsel
Mr. Ponda for A1, for it would not have taken five hours or more to
record the answers of the readymade questionnaire.
241. The witness was asked about distinction of the meaning of
the word 'voluntarily and willingly'. The witness testified that he knew
that he should record confessional statement if the same is made
voluntarily. He knew that he had to record his satisfaction as to the
voluntariness of the confessional statement of A3 Ashokkumar.
Further, the witness testified that A3 was before him while he made the
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certificate. A3 Ashokkumar had already signed his confessional
statement before the witness took out printout of this certificate. There
was hardly any time gap between A3 signing his confessional statement
and taking of the printout by the witness. It also suggests that the
questions were typed on a computer. Its printout was taken out. As
such, the defence could not rebut the cogent testimony of P.W. 17 Mr.
Vinaykumar.
242. It is needless to reiterate Part I of the confessional statement
of A3 Ashokkumar Exh. 227 as it has been recorded in due compliance
of the procedure. I will switch over to the second part which is quite
important and has been duly recorded as per the procedure laiddown.
243. In his confessional statement, A3 Ashokkumar Jaiswar had
stated that his age is 21 years and is residing at Munshi Mahal, Shankar
Sheth Chawl, Room No.2, Pratapnagar Road, Bhandup (W), Mumbai,
along with his parents and three brothers. He got acquainted with A4
Narendra while studying in Municipal School, Powai, Mumbai. The
cousin of Narendra i.e. A5 Anil Giri also became a friend of A3
Ashokkumar. Both of them used to visit the house of A3. He was also
introduced with the maternal uncle of A5 Anil i.e. A2 Vijay Giri. A5
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was working in film industry while A4 Narendra and A2 Vijay were
autorikshaw drivers. Earlier, A2 Vijay and A4 Narendra used to reside
at Sakinaka where they used to drive autorikshaw.
244. In the month of February 2007, A2 Vijay called A3
Ashokkumar on his mobile No. 9224676768 from a PCO of Dahisar and
called him at Mangatram Petrol Pump, Bhandup. Accordingly, at about
6.30 p.m., on the same day, A3 Ashokkumar met A2 Vijay. At that
time, A2 Vijay said that “Ek Ko Marne Ka Hai. Apne Ko Adhai Lakh
Rupaya Milega, Aise Batakar, Yaha Kaam Babune (A10), Diya Hai Aise
Bataya”, which means, A2 Vijay told A3 Ashokkumar that they would
get Rs.2.50 lakhs to kill a person and that the “work” is assigned by
A10 Shrikrishna alias Babu Gurav. A3 Ashokkumar was called to
Sakinaka junction on the next day at 10.00 a.m. Accordingly, he
reached there. He met A2 Vijay and A4 Narendra. A2 Vijay and A4
Narendra introduced him to A10 Shrikrishna @ Babu. A10 Babu
called somebody on phone and said that he had reached there. After
some time, two persons came on a motorcycle who were introduced by
A12 Pratap and A13 Rane. A10 Shrikrishna took A2 Vijay aside and
they had some conversation. A2 Pratap and A13 Rane left the place.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 264
A10 Shrikrishna took A3 Ashokkumar, A4 Narendra and A2 Vijay to
Chandivali where he had shown office of 'Amit Travels' and then called
them at 10.00 a.m. on the next morning. On the next day, A3
Ashokkumar reached near Ram Baug police station as per the
instructions of A2 Vijay. A2 Vijay, A4 Narendra and A5 Anil were
already present over there. A2 Vijay called A10 Babu on his mobile
phone. Thereafter, all of them went to the office of 'Amit Travels'. The
office was closed. After some time, A10 Babu came over there on a
motorcycle and then called A12 Pratap on mobile. After some time,
A10 Babu brought the key of the office and opened it. All of them
entered into the office. After some time, A5 Anil and A3 Ashokkumar
also entered into the office. Few minutes thereafter, A2 Pratap came to
the office.
245. After some time, A2 Vijay and A4 Narendra went out of the
office. In the office, a bag was kept on the table. There was a handgun,
two rounds and three knives which were taken out by A2 Vijay and had
shown to them and told them that he has already seen the weapon.
After some time, A10 Babu came out and gave Rs.10,000/ to A2 Vijay.
A2 Vijay instructed A3 Ashokkumar and A4 Narendra to take
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possession of the said bag, containing the weapons, on the following
day. At that time, A3 Ashokkumar saved the mobile number of A10
Shrikrishna @ Babu. A2 Vijay gave the number of A3 Ashokkumar
and A5 Anil to A10 Babu. Thereafter, all of them left the office of Amit
Travels.
246. On the following day, at 9.30 a.m., A3 Ashokkumar and A4
Narendra reached Amit Travel's office which was closed. A3
Ashokkumar called A10 Babu. He opened the office and took out the
bag from the drawer of the table and gave it to A4 Narendra and also
gave Rs.10,000/ to A4 Narendra. A3 Ashokkumar further states that
thereafter, he left for his home. In the evening, A2 Vijay informed A3
Ashokkumar that A10 Babu had given him a motorcycle for the “work”.
247. On the next day, as per the instructions of A10 Babu, A3
Ashokkumar reached to the Office of Amit Travels where A2 Vijay, A4
Narendra and A5 Anil were already present. After some time, A12
Pratap also reached the office of 'Amit Travel's who was followed by a
boy, who was introduced by A12 Pratap as Addu (P.W.4) and said that
he would show the person who was to be killed, and his house.
Thereafter A4 Narendra and A5 Anil along with Addu left the office of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 266
Amit Travels on a 'Discover' motorcycle. They came back after one hour
when A4 Narendra and A5 Anil said that Addu had shown them the
'person' and his house, who was to be killed.
248. On the following day and thereafter between 10 a.m. to 1
p.m. for 1015 days, A2 Vijay, A3 Ashokkumar, A4 Narendra and A5
Anil used to go to Asalfa village, AndheriGhatkopar Link Road,
Ghatkopar in search of the person shown by Addu, however, they could
not see him. It was informed by Addu that the person he showed
always sports a red coloured 'Tikka' (Vermilion) on his forehead.
During the 'search operation' of 15 days, they used to park the
motorcycle beside a country liquor bar, near the bus stop of Asalfa
village. Everyday they used to take the bag containing weapons and
used to deposit it in the afternoon. A3 Ashokkumar further states that
during those days, they used to have lunch in hotel Kamal. A2 Vijay
used to apprise A12 Pratap about their efforts, everyday. He also used
to talk to A10 Babu.
249. On 2nd March 2007, as usual, all the four i.e. A2 Vijay, A3
Ashokkumar, A4 Narendra and A5 Anil reached the office of Amit
Travels. At that time, A5 Anil demanded money from A2 Vijay upon
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which, A2 Vijay refused. A5 Anil got angry and went away.
Thereafter, A2 Vijay, A3 Ashokkumar and A4 Narendra took the bag
and reached Asalfa village. As usual, they started searching for the said
person at different places, but could not find him. In the afternoon,
A12 Pratap called on the mobile of A3 Ashokkumar and talked with
A2. He informed A2 Vijay that the “target” would be going to the
graveyard. At that time, there was a funeral from the said area. These
three accused participated in it and reached the Bhat Wadi Graveyard,
but could not see the “target”. A2 Vijay immediately informed A12
Pratap on mobile who asked them to immediately come back to the
house of the “target”. At about 3.30 p.m., when they reached near the
house of target, they noticed, he was sitting with 34 persons. The
accused came out and waited for those persons to leave. A3
Ashokkumar further states that after one hour, he reached near the
house and found the said person siting alone in a chair. He immediately
came out and informed about it to A2 Vijay and A4 Narendra. A2
Vijay and A4 Narendra went in the lane and entered into a toilet on the
left side. A2 Vijay took the bag containing the weapons from A3
Ashokkumar, took out the gun and loaded one round in it. He kept
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another round in his pocket. A3 Ashokkumar and A4 Narendra kept
one knife each with them. A3 Ashokkumar concealed his knife in his
socks. They walked through the lane and reached near the house of
“target”. A3 Ashokkumar stopped near the window while A2 Vijay and
A4 Narendra stopped near the door. A4 Narendra stopped outside the
door when A2 Vijay took out his gun and fired a shot at the said
“target”. Immediately after firing a shot, all the three came out and
escaped on the motorcycle, which was driven by A4 Narendra. They
reached Ghatkopar Narayan Nagar in a lane. They left the motorcycle
over there and immediately thereafter A2 by using the mobile of A3
Ashokkumar informed A12 Pratap that they had accomplished the
'work' and the motorcycle was left near a mosque near Narayan Nagar.
They went to a toilet. A2 Vijay kept one round in the said bag and so
also A3 Ashokkumar and A4 Narendra kept their knives in it. A2
Vijay handed over the said bag to A3 Ashokkumar and asked him to go
back to his house. Accordingly, A3 Ashokkumar returned to his house
with the bag. A3 states that on the next day, they came to know after
reading the newspaper that the person who was killed by them was a
Corporator of Shiv Sena viz. Kamlakar Jamsandekar. He further states
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that two days thereafter, A2 Vijay called A3 Ashokkumar on telephone
and asked him to reach Borivali National Park. Accordingly, A3
reached Borivali along with the bag containing the weapon and gave it
to A2 Vijay. A2 Vijay gave him Rs.4000/ by saying that he would pay
the balance afterwards. A3 Ashokkumar further states that in the
month of December 2007, when A12 Pratap and A13 Rane came out,
A2 Vijay and A4 Narendra approached them demanding the balance
amount as they (A12 Pratap & A13 Rane) were demanding the bag
containing the weapons. However, A2 Vijay stated that they would not
return the bag unless the balance amount is paid. Further, A3
Ashokkumar states that on 26th April 2008, the police arrested A2 Vijay,
A4 Narendra and himself at Girgaon, Mjumbai.
CONFESSIONAL STATEMENT OF A4 NARENDRA GIRI
250. P.W. 15 Rajendra Ganpatf Dabhade Exh. 209, was working
as a DCP, Zone XII at the relevant time. He deposed that he recorded
the confessional statement of A4 Narendra Giri for which he had
received a communication from Joint C.P. Mr. Rakesh Maria on 3rd June
2008 Exh. 210. Pursuant to which, he made a correspondence with the
I.O. of the case as well as the Sr. PI of Gamdevi police station. He
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directed the IO P.W. 37 ACP Durafe to produce A4 Narendra before him
on 4th June 2008. At about 11 a.m., PSI Ninad Sawant along with a
letter Exh. 212 produced A4 before P.W. 15 DCP Dabhade. After the
instructions of P.W. 15 DCP Mr. Dabhade, all the police personnel left his
chamber except his typist Mr. Surve. P.W. 15 DCP Mr. Dabhade had
directed his orderly Mr.Ovhal to ensure that no third person should
enter his office without his permission. Thereafter, he put questions to
the A4 as regards the willingness of the accused to make a confessional
statement. A4 Narendra volunteered to make a confessional statement.
P.W. 15 DCP Mr. Dhabade informed him that he was no longer in the
custody of IO and that he was not in any way connected with the
investigation. He also enquired with the accused no.4 whether he has
been compelled, induced, promised or threatened to make a confession
which he answered in the negative. He also informed A4 Narendra
that he would be given 24 hours time for reflection. Accordingly, he
recorded Part I. He also informed the A4 Narendra that if he makes
confessional statement, it will be used as evidence against him. He also
asked him whether he would like to have presence of his advocate
during the course of confessional statement which the accused denied.
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Part I was typed by Mr. Surve simultaneously and its printout was taken
out and was signed by P.W. 15 DCP Mr. Dabhade and A4 Narendra.
Thereafter, P.W. 15 DCP Dabhade summoned PSI Subhalkar, attached to
Gamdevi police station. A4 Narendra was placed in his custody with a
direction to keep him in a seaprate lockup to ensure that no officer
related to the investigation or any other police officer would meet A4
in the lockup. The letter to that effect is at Exh. 213.
251. On the following day, PSI Waghmare produced A4
Narendra before P.W. 15 DCP Mr. Dabhade at 3 p.m. P.W. 15 DCP Mr.
Dabhade asked PSI Waghmare and staff to leave the office and
thereafter, he ensured that A4 Narendra, typist Mr. Surve and himself
present in the office. He again enquired with the A4 Narendra about
his willingness and voluntariness to give a confessional statement. the
A4 expressed his willingness to give a confession. He also ensured
from A4 Narendra whether anybody from investigation agency met him
in the lockup to influence, which he replied in the negative. A4
Narendra declined to have presence of his advocate during his
statement. When P.W. 15 DCP Mr. Dabhade was satisfied about the
voluntariness of the confessional statement to be made by A4
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Narendra, he recorded his statement in Hindi. He obtained the
printout. He obtained the signature of A4 Narendra. It was read over
and explained to A4 Narendra. The accused affirmed the same. The
statement was also signed by P.W. 15 DCP Mr. Dabhade. The said
statement is Part II and is marked at Exh. 214. P.W. 15 DCP Mr.
Dabhade appended a certificate stating the fact that he was satisfied
about the voluntariness of the confessional statement made by the A4
Narendra. The certificate is the part of Exh. 214. The recording was
concluded by 3.45 p.m. The learned SPP asked as to why P.W. 15 DCP
Mr. Dabhade did not append the statement at the bottom of the
statement upon which he answered that he was under the impression
that such a certificate ought to have been on a separate page.
Thereafter, P.W. 15 DCP Mr. Dabhade sealed the entire confessional
statement and placed in the custody of PSI Waghmare and directed him
to produce A4 Narendra before the CMM along with the confessional
statement. He also instructed him to place the A3 in the custody of the
IO after the purpose before the CMM was over.
252. In crossexamination by Mr. Ponda for A1, P.W. 15 DCP Mr.
Dabhade has stated that he had no occasion to record the confessional
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 273
statement before the one in question. He was not aware that most of
the accused later on retract their confessional statement. He was asked
to go through Sec. 18 of the MCOC Act, wherein, there is no reference
of promise, threat and allurement. He further states that in order to
ascertain the voluntariness, he had put the questions regarding promise,
threat or allurement. He admits that he is aware about the confessional
statement which may be recorded by mechanical devices like cassettes,
tapes, sound tracks etc. However, he is not aware about the object
behind making such provision. The witness was not aware since when
A4 Narendra was in police custody. He further admits that on
5.6.2008, soon after recording of confessional statement, he drafted a
letter to CMM immediately. He further states that he had instructed PSI
Waghmare to personally produce A4 Narendra before the CMM.
253. In the crossexamination by learned counsel Mr. Pasbola,
P.W. 15 DCP Dabhade admits that he was not aware about the subjective
satisfaction to be recorded before commencement of recording
confessional statement. He also admits that there is an ample space in
Exh. 214 (Part II) on which he could have recorded the certificate. The
reason which the witness gives is that, on the bottom of the last page of
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Exh. 214, the certificate was not recorded as printout of the statement
was already taken out for obtaining signature of the A4 Narendra. The
reason appears to be justified. He further testified that then he thought
that the same page could not be placed in machine for recording his
certificate thereon, but further admits that the certificate could have
been recorded before the taking out the printout on the same page. His
attention was drawn by the learned counsel to Rule 3(6) of MCOC Act,
which provides that the certificate has to be in the form given therein.
There was no crossexamination by advocates Mr. Moomen and Mr.
Sejpal.
254. Now, switching over to the Part II of the confessional
statement which is identical to that of A3 Ashokkumar and, therefore,
need not be reiterated.
255. Now, the last confessional statement is of A5 Anil Giri,
which was recorded by P.W. 23, DCP Vijaysingh Jadhav Exh. 284. P.W.
23 has been working as DCP Headquarter No. I, Mumbai. He recorded
confessional statement of A5 Anil Giri in this crime pursuant to a
communication by Joint C.P. Mr. Rakesh Maria through a letter Exh.
285. Accordingly, he wrote a letter to the I.O. to produce A5 Anil
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before him on 4.6.2008 at 10.30 hours. The office copy of the letter is
at Exh. 286. PSI Chavan attached to DCB,CID acknowledged receipt of
the said letter. P.W. 23 DCP Jadhav sent a letter to Sr. PI, LT Marg police
station for making arrangements of escort party on 4th June 2008. The
letter is marked at Exh. 287.
256. Accordingly, on 4.6.2008, PSI Chavan produced A5 Anil in
veil before P.W. 23 DCP Mr. Jadhav along with a letter Exh. 288. In his
chamber, P.W. 23 DCP Mr. Jadhav asked PSI Chavan and his party to
leave his office. He ensured that except A5 Anil and lady constable Ms.
Sunita Patil who would operate the computer, none was there. He
asked constable Borse to close the door of his chamber and not to allow
anyone in his chamber without his permission.
257. P.W. 23 DCP Mr. Jadhav put preliminary questions to A5
Anil and was found him comfortable after the discussion. A5 Anil
could understand Hindi language well. He put him some questions in
Hindi. A5 Anil wanted to make a confession in connection with the
murder of Kamlakar Jamsandekar. The witness introduced himself and
informed the accused that he is in no way connected with the
investigation of the crime. He assured the accused that he is in his
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 276
custody. The witness also asked A5 Anil whether he had any complaint
against the officer connected with the investigation which he replied in
the negative. After ascertaining his name, age etc., he examined the
person of the accused and found him normal. The witness also
informed the accused that he is not bound to make a confession and if
he makes so, that can be used as evidence against him. He also ensured
from A5 whether he was threatened or promised to make a confession
which A5 answered in the negative. He also informed A5 Anil that if
he retracts his confession, he would not be sent back to the
investigating agency. He also enquired with the accused whether he
requires presence of his friends, relative or advocate during recording of
his confession. A5 declined the offer. He was again asked whether he
wanted to make a confession voluntarily which he answered in the
affirmative. The witness had given 24 hours' time for retraction and
informed him that he would be in his custody and kept in the lockup at
L.T. Marg police station.
258. The entire facts have been recorded in the computer
simultaneously and thereafter, its printout was taken. P.W. 23 DCP Mr.
Jadhav read over it to A5 Anil who affirmed about its contents and
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 277
thereafter, signed each page of the proceeding. P.W. 23 DCP Mr. Jadhav
had also signed on each page of Part I.
259. Thereafter, custody of the A5 Anil was handed over to PSI
Machhindra of L.T. Marg police station with a direction to keep A5 Anil
in a separate lockup. It was also directed that nobody should meet the
accused from the investigating agency. The Part I is at Exh. 289. P.W.
23 DCP Mr. Jadhav had also directed the PI of LT Marg police station to
get the accused medically examined and directed to produce him on
5.6.2008 at 17 hours. The said letter is at Exh. 290. P.W. 23 DCP Mr.
Jadhav further testified that at late in the night, he contacted LT Marg
police station to ensure that the accused was medically examined and
that his instructions were followed. He obtained certified copies of the
station diary of the police station which are collectively marked at Exh.
291. The DCP and Additional C.P. of that region appoint some officers
to have surprise visit of the lockup during night hours. The station
diary entry at Sr. No. 67 speaks of the said exercise.
260. He further deposed that on 5th June, 2008 at 17.15 hours,
PSI Machhindra produced A5 Anil before him. They left the office.
The lady constable Ms. Sunita Patil was called for recording the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 278
proceedings. P.W. 23 DCP Mr. Jadhav asked constable Borse to close the
door of the chamber and ensured that nobody would enter. P.W. 23 DCP
Mr. Jadhav realized from the appearance of A5 Anil that he was not
under pressure and asked whether 24 hours' time was sufficient for
reflection to which A5 answered in the affirmative. He also enquired
with A5 whether any police officer connected with the investigation
met him in the lockup. He replied in the negative. He informed A5
that he was not bound to make a confession and that if he makes a
confessional statement, it might be used as evidence against him. A5
said that he was aware of it. A5 Anil also refused to have presence of
his relatives, friends or lawyer during the recording of statement. On
being asked, A5 told that he wants to make a confession about
whatever he knew about the offence and wanted to tell the truth. P.W.
23 DCP Mr. Jadhav recorded the confession as it progressed further
simultaneously. The witness realized that A4 Narendra was giving his
statement voluntarily. It was completed by 19.30 hours. A printout was
taken out. It was read over to the accused. The A4 Narendra told the
witness that it was recorded as per his say and was correct. The A4
Narendra signed each page of his statement Part II. P.W. 23 DCP Mr.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 279
Jadhav also signed each page thereof. It is at Exh. 289A. The
certificate is at Exh. 289B. It bears signature of P.W. 23 DCP Mr. Jadhav,
which is in his handwriting. P.W. 23 DCP Mr. Jadhav sealed Part I and
Part II along with certificate in an envelope and gave it to PSI
Machhindra along with the A4 Narendra with a direction to produce
him before the CMM on 6.6.2008 at 10.30 a.m. He also wrote a letter
to the Sr. PI in that regard. The office copy is at Exh. 292. He wrote a
letter to the Sr. PI instructing him to keep the accused in a separate
lockup and also get him medically examined and nobody should be
allowed to meet him. The office copy of the said letter is at Exh. 293.
P.W. 23 DCP Mr. Jadhav ensured that the accused was medically
examined on 6.6.2008, on the same day, he wrote a letter to the CMM
Exh. 294. Thereafter, P.W. 23 DCP Mr. Jadhav wrote a letter to the IO
asking him to take the custody of A5 Anil after the production before
the CMM was over. Accordingly, PSI Chavan took the custody of the
accused no.5. The letter to that effect is at Exh. 295. The report of the
CMM is at Exh. 296.
261. The confidential letter of CMM addressed to this court dated
6.6.2008 reveals that when the contents of the confessional statement
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 280
of Part II were read over to the A5 Anil, he stated that his signatures
were obtained on a paper in which, something was written in Hindi.
The A5 Anil had stated before the CMM that he had not given any
confessional statement before the DCP. A2 Vijay is his uncle. He
resides in Goregaon right from the childhood and had studied up to 10th
standard in Mumbai. He does not know about the murder of Shiv Sena
Corporator Kamlakar Jamsandekar. Nobody had paid him Rs.1000/,
especially A2 Vijay. A2 Vijay resides at Dahisar. He works as an
Assistant Cameraman with Balaji Telefilms. The signature was
obtained on a paper which was already written. He does not know
anything about this crime. He had not committed any offence. He had
not given any confessional statement.
262. P.W. 23 DCP Mr. Jadhav has also accorded sanction under
the Arms Act. He testified that he had perused the seizure panchanama
of the firearm and the ballistic expert's report and after applying his
mind, he satisfied that there was enough material against A2 Vijay for
his prosecution under Arms Act. He, therefore, accorded sanction,
which is proved at Exh. 297.
263. During his crossexamination by learned counsel Mr. Ponda
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 281
for A1, usual questions were asked about formulating of questions for
being put to the accused, about receipt of letters Exh. 285, its timing
and about other documents Exhs. 289 and 289A. He denied that he
obtained readymade questionnaire in advance from the IO and that he
simply combined some of the questions and split some of it and put to
the accused on both days. He testified that he recorded the confessional
statement of A5 Anil as narrated by him except on one or two
occasions where he had been intervened, as the accused had changed
the sequence of events during the narrative part. The attention of the
witness has been drawn to some portion underlined with red ink on the
5th line of third paragraph of narrative part, which reads that “at that
time, A2 Vijay told this accused about the name of A10 Shrikrishna
alias Babu”. The witness did not ask the accused whether he knew
Babu. The purpose for asking this question is not clear as it is a
confessional statement of the accused even in a narrative form and
recorded as per his say. The witness admits that after going through
Exh. 285, he realized that it was a case of conspiracy and murder. He
did not question the accused who were the party of the conspiracy and
did not question him what role he played in the conspiracy. The witness
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 282
denied that Exh. 285, 286 and 288 are fabricated documents. He also
denied that documents at Exhs. 287 and 290 to 294 are also fabricated
documents. He denied that the accused did not make any confessional
statements. P.W. 23 DCP Jadhav testified that he was aware that a
confessional statement could have been recorded on any mechanical
devices. He is also aware that at any point of time, the accused can
retract their statements. He was also aware that after recording a
confession, the accused should be immediately produced before the
CMM. As he was preoccupied with the meeting, he did not give
instructions to produce the accused before him before 5.00 p.m. He
admits that it was his decision to keep accused in the lockup, but denied
that he had deliberately kept A5 Anil in the lockup of LT Marg police
station as he was aware that C.R. No. 118/2008 had registered against
him with L.T. Marg police station. He also denied that accused was
conveniently produced before him at 5.00 p.m. so that he can be kept in
a lockup overnight and was tortured with a view that he would not
retract the confessional statement on production before the CMM. The
entire crossexamination is intended to show as to how the officer had
flouted the procedural aspects of the recording the confessional
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 283
statement in which the defence could not succeed for the reason that all
the suggestions have been denied and the witness has clarified certain
delays or minor errors which occurred during recording of a confession.
It should not be lost sight of the fact that all the DCPs are the high rank
IPS officers. However, in view of the ratio laiddown by the Hon'ble
Supreme Court cited supra, in the case of Mohd. Farooq Abdul Gafur
and anr. vs. State of Maharashtra, reported in 2010 (3) AIR Bom R
(S.C.) 551, such minor things cannot be looked into to find some fault
if in substance, the confessions are found to be reliable and acceptable.
It is, more particularly, in view of the fact that the other evidence in the
form of CDR and other witnesses exists to which this confessional
statement corroborates in material particulars.
264. There is no material on record to show that the IO had
asked P.W. 23 DCP Mr. Jadhav to accord sanction for prosecution of
concerned accused persons for transport and manufacture of firearm. It
is, therefore, obvious that A4 Narendra, A5 Anil, A8 Surendra, A11
Narkar, A12 Pratap and A13 Rane cannot be held liable for violation of
any of the provisions of Arms Act except A2 Vijay Giri.
265. No doubt, there are certain minor discrepancies in the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 284
sanction order Exh. 297 which does not indicate the date on which P.W.
23 DCP Mr. Jadhav received the proposal and the documents submitted
by the IO. Surprisingly, P.W. 23 DCP Mr. Jadhav admits that on going
through all the papers, he did not find material to accord sanction for
transporting and manufacturing firearm. This admission is quite
strange which indicates that either this witness had not gone through
all the papers of prosecution or perhaps unable to understand the legal
provisions under the Arms Act. Be that as it may. He admits that the
sanction was accorded in respect of possession of firearm on 26th April
2008. As already held that it was A2 Vijay who shot the fire resulting
into death of Kamlakar Jamsandekar by using the same weapon and,
therefore, merely because the sanction was accorded to prosecute him
in respect of the firearm on 26.4.2008 would not absolve him from
possessing the firearm on the date of commission of the offence. A
perusal of Exh. 297 reveals that P.W. 23 DCP Mr. Jadhav had after going
through the record and after application of mind accorded sanction to
prosecute A2 Vijay for contravention of the provisions of Sec. 3
punishable u/s. 25(1B)(a) of the Arms Act. I, therefore, do not see
that the sanction is badinlaw. Section 3 of the Arms Act reads thus:
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 285
“Licence for acquisition and possession of firearms and ammunition. (1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder”.
25(1B)(a): “Whoever, acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3”.
266. It is clear that no prosecution can be instituted against any
person in respect of any offnece u/s. 3 which applies to this case also,
without the previous sanction of the District Magistrate. Therefore, this
mandate of law cannot be taken as a mere formality, being of sinequo
non before institution of any prosecution. P.W. 23 DCP Mr. Jadhav
appears to have accorded sanction in view of Section 39 of the Arms
Act, 1959, after taking into consideration the record of the accused and
the attending circumstances thereof.
267. Mr. Pasbola while crossexamining P.W. 23 DCP Mr. Jadhav
tried to bring on record certain minor technical flaws which do not go
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to the root of the matter. The crossexamination of this witness on the
point of confessional statement of A5 Anil is in similar lines to that of
other DCPs.
268. The learned counsel Mr. Pasbola and Mr. Sejpal have placed
reliance on several rulings. The said rulings are as under:
(1) Veera Ibrahim vs. State of Maharashtra, (1976) SCC Cr 278.
(2) Pakhala Narayan Swami vs. Emperor reported in AIR 1939 Privy Council 47.
(3) Palvindar Kaur vs. The State of Punjab reported in AIR 1952 Supreme Court 354.
(4) Omprakash vs. State of UP reported in 1960, SC 409.
(5) Dagdu vs. State of Maharashtra reported in (1977) 3, SCC 68.
(6) Thimma and Thimma Raju vs. State of Mysore reported in (1970) SCC Cri 320.
269. The ratio laiddown in the aforesaid rulings is that
confession must pass the twin test of voluntariness and truthfulness.
The court may refuse to act upon a confession even if it is permissible
in evidence if the facts and circumstances surrounding the making of
confession appear to cast a doubt on the veracity or voluntariness of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 287
confession. The court must also see that surrounding circumstances do
not indicate that a confession is inspired by some improper and co
lateral circumstances to suggest it may not be true.
(7) Arup Bhuyan vs. State of Assam reported in (2011) 1 SCC (Cri) 855.
270. It is held by the Hon'ble Supreme Court that confession
made to a police officer u/s. 15 of the TADA Act in the absence of
corroboration can sustain a conviction on its sole basis, however, it
being a weak kind of evidence and considering widespread and rampant
practice of police to use thirddegree methods for extracting confessions
from accused, courts should be cautious while accepting the evidence.
In the instant case, dehors confessions, other evidence has substantiated
the commission of the offence which is fully corroborated by the
confessional statements. There is nothing to show that a third degree
method was used for extracting the confession and, therefore, this
authority would be of no help to the defence.
(8) Pacho vs. State of Haryana reported in (2011) 10 Supreme Court Cases 165.
(9) Goma Rama and others v. Emperor reported in AIR (32) 1945 Bombay 152.
(10) Parmanand Pegu vs. State of Assam
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 288
reported in (2004) 7 Supreme Court Cases 779.
This authority is on Sec. 24 of the Evidence. The relevant paragraph of
this citation can be reproduced as under:
“Before acting on a confession made before a Judicial Magistrate in terms of Section 164, the court must be satisfied first that the procedural requirements laid down in subsections (2) to (4) are complied with. These are salutary safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. After this first requirement of acting on a confession is satisfied, the court, called upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. The endeavour of the court should be to apply its mind to the question whether the accused was free from threat, duress or inducement at the time of making the confession. In doing so, the court should bear in mind, that under Section 24 of the Evidence Act, a stringent rule of proof as to the existence of threat, duress or inducement should not be applied and a prima facie opinion based on evidence and circumstances may be adopted as the standard laiddown. Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded as presumptive evidence of its truth. Still, there may be
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 289
circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value. In order to be assured of the truth of confession, the rule of prudence is that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. The expression “corroboration of material particulars” does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true”.
271. It can be seen that the authorities relied upon by the defence
are mostly in respect of the offence of IPC and the nature of offence in
the present case is of organized crime which is a continuing unlawful
activities and, therefore, law will have to be appreciated in the light of
the nature of the offence and more particularly in view of Section 18 of
the MCOC Act, 1999.
272. The prosecution has placed reliance on the following
authorities:
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 290
(1) State of Maharashtra vs. Bharat Chaganlal Raghani & others reported in (2001) 9 Supreme Court Cases 1.The relevant paragraph from the said ruling can be quoted for advantage as under:As per Section 15 of the TADA Act, while discussing retracted confession, it is held that: “if confession is found to have been made voluntarily and in accordance with law, it is held to be a good confession. Requirement of corroboration in such a case is not a rule of law, but a rule of prudence. Sufficiency of corroboration depends upon facts and circumstances of the case, a general corroboration of confession statement is sufficient of corroboration on confessional statement”. As such, this ratio is clearly applicable to the present case.
273. As already stated above, the judgment directly under the
provisions of MCOC Act, delivered by the Hon'ble Supreme Court is
reported in 2010(3) AIR BOM R(SC) 551 (S.B. Sinha, Dr.
Mukundakam Sharma, JJ), Mohd. Farooq and anr. v. State of
Maharashtra wherein, almost all the aspects have been considered
including the evidentiary value of TI Parade, its delay, the statement of
accused u/s. 313 of Cr.P.C., confessional statement, applicability of the
provisions of Cr.P.C. and Evidence Act etc. The relevant para can be
reproduced for advantage:
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 291
“Para 76: “The contention of the learned counsel appearing for accused persons that there was inordinate delay in conducting the TIP cannot be accepted in view of the fact that both the accused persons were taken into custody on 25.6.1999 whereas the TIP was held on 10.8.1999. Therefore, the TIP was conducted only after a period of 45 days which is not such a long period to cast any doubt over the evidentiary value of the TIP. Even otherwise, a TIP does not constitute substantive evidence but can only be used for corroboration of the statement in court. It is primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation is proceeding on the right lines. The substantive evidence is the evidence of identification in court, which in the present case has been done by P.W. 18”. This court in the case of Amitsingh Bhikamsingh Thakar v. State of Maharashtra, (2007) 2 SCC 310, at page 315, has succinctly observed as follows:“As was observed by this court in Matru v. State of U.P. 1 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain2). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 292
that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime”.
274. On similar points, the prosecution has also placed reliance
on a ruling in the case of (2) Prakash Kumar alias Prakash Bhutto vs.
State of Gujarat reported in (2005) 2 Supreme Court Cases 409
with Abdulwahab Abdulmajid Shaikh and others vs. State of
Gujarat with Musa Khan alias Baba Khan vs. State of Gujarat. The
Hon'ble Supreme Court in the said ruling has also held about the
applicability of Section 12 and 15 of the TADA Act. It is further held in
paragraph 20 about interpretation of statute which can be reproduced
as under :
Para 20: “Before we proceed to consider the rigours of Sections 15 and 12 we may at this stage point out that it is a trite law that the jurisdiction of the court to interpret a statute can be invoked only in case of ambiguity. The court cannot enlarge the scope of legislation or intention when the language of the statute
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 293
is plain and unambiguous. Narrow and pedantic construction may not always be given effect to. Courts should avoid a construction which would reduce the legislation to futility. It is also well settled that every statute is to be interpreted without any violence to its language. It is also trite that when an expression is capable of more than one meaning, the court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having regard to the consequences of the alternative constructions”.
It is also apposite to reproduce Para 14 which reads thus:Para 14: “The more stringent the law, the less is the discretion of the court. Stringent laws are made for the purpose of achieving its objectives. This being the intendment of the legislature the duty of the court is to see that the intention of the legislature is not frustrated. If there is any doubt or ambiguity in the statutes, the rule of of purposive construction should be taken recourse to, to achieve the objectives. (See Swedish Match AB v. Securities & Exchange Board of India, Scale para 84 at p. 176)”.
(3) The learned SPP has placed reliance on the authority
in the case of Krishna Mochi and ors. vs. State of Bihar reported in
AIR 2002 SC 1965.probably to demonstrate as to how in a Criminal
Appeal, the prosecutor has to face somany odds and how to appreciate
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 294
the evidence of a witness in a given case. Paragraph 76 and 77 has
been highlighted by the learned prosecutor, which can be reproduced
for advantage:
Para 76: “It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or highups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of crossexamination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other all urence or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 295
instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune form decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time”.
Para 77: “Thus, in criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbled, court should tread upon, it, but if the same are boulders, court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and society is so much more. Now the maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is, in practice, changing world over and courts have been
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 296
compelled to accept that “society suffers by wrong convictions and it equally suffers by wrong acquittals”. I find this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh and Anr. v. MANU/SC/0093/1978 : state (Delhi Administration) 1978CriLJ766, Krishna Iyer, J. laid down that “proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes”. In the case of State of U.P. v. MANU/SC/0503/1988 : Anil Singh 1989CriLJ88, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. In the case of State of West Bengal v. MANU/SC/0321/1994 : Orilal Jaiswal and Anr. 1994CriLJ2104, it was held that justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Singh and Anr. v. MANU/SC/0035/1999 : State of M.P. 1999CriLJ1334, it was held that the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective Iayer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 297
the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused”.
275. Lastly, again on the point of confession, prosecution has
relied upon the ruling in the case of (4) (2007) 4 Supreme Court
Cases 257 in the case of Abdulvahab Abdulmajid Shaikh and others
vs. State of Gujarat with Cr. Appeal No. 129 of 2005 in the case of
State of Gujarat vs. Abdulvahab Abdulmajid Shaikh and others and
with Cr. Appeal No. 130/2005 in the case of State of Gujarat vs.
Yasin Ganibhai Haveliwala and others. In this authority, it is held by
Hon'ble Supreme Court as to how to determine the voluntary nature of
a confessional statement which is retracted at a later stage. It is held
that merely because the confession was retracted later, that does not
mean that the confession is not voluntary in nature. Whether the
accused was willing to give confession voluntarily or not is to be
determined from his mental state at the time when he gave the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 298
confession. In the given case, the DCPs took all the precautions to see
that the confessions are voluntary and complied with all the formalities
which have been incorporated in the confessional statement, which is
corroborated by other record and documents and, therefore, ratio is
applicable to the present set of facts.
276. To summaries, after considering the confessional statements,
the prosecution has established the following facts, independent of
other evidence in the form of CDR and witnesses:
(a)A1 Arun Gulab Gawali also known as 'Daddy' is the head of the
Organised Crime Syndicate operating from Gitai Building, Dagali
Chawl Compound, Byculla, Mumbai.
(b)He is also at helm of the Political Wing of the Organized Crime
syndicate namely Akhil Bhartiya Sena.
(c)The members of the Organized Crime syndicate would bring
information about the builders, cable operators and other
businessman in the respective areas who would be called under
threats to Dagadi Chawl in the ground floor room belonging to
A20 Sunil Ghate and under the threat of dire consequences huge
amount was extorted from such builder, businessman regularly.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 299
(d)Any member of the Organized Crime syndicate who would not
account for the extorted money would be dealt seriously by A1
Arun Gawali by bringing him to Dagali Chawl.
(e)A20 Sunil Ghate would lead the Organization in the absence of
A1 Arun Gawali.
(f)A15 Suresh Patil and PW 25 Vishwnath Hinge would keep the
record of the account in small diaries.
(g)A9 Sandip Gangan was regularly working with the Organization
headed by A1 Arun Gawali, knowing and having reasons to
believe that A1 Arun Gawali is involved in commission of
Continuous Unlawful Activities.
(h)A12 Pratap Godse, A13 Ajit Rane, A10 Babu Gurav, A11 Dinesh
Narkar had gone to village Rajapur for procuring weapon which
they needed for threatening the businessmen, builders and others
for extorting money from them on behalf of Organized Crime
syndicate headed by A1 Arun Gawali.
(i) A6 Sahebrao Bhintade and A7 Sadashiv Sureve along with A12
Pratap Godse and A13 Ajit Rane had come to give Contract of
Killing Kamalakar Jamsandekar to A1 Arun Gawali at Mid of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 300
December 2006. They were taken to A1 Arun Gawali on Second
floor of Gitail Building, Dagali Chawl at his office by A9 Sandeep
Gangan where A12 Pratap Godse gave a bag containing Rs. 30
lacs to A1 Arun Gawali who in turn handed it over to A15
Suresh Patil and assured A6 Bhintade and A7 Sureve that the
work of Kamalakar Jamsandekar would be done, and in fact
Kamakar Jamsandekar was murdered on 2nd March, 2007.
(j) Some where in the beginning of January 200,A15 Suresh
Patil under the instructions of A1 Arun Gawali gave Rs. 60
thousand to A12 Pratap Godse through A9 Sandeep Gangan.
277. It is argued by SPP Mr. Thakare that the law as regards the
confession is well settled. There is no denial of the fact that judicial
confessions are usually retracted. Retracted confessions are good
confessions, if held to have been made voluntarily and in accordance
with the provisions of law. Corroboration of the confessional statement
is not a rule of law, but a rule of prudence. A confession recorded u/s.
18 of the MCOC Act, is a substantive piece of evidence which can be
used even against coaccused if held to be admissible, voluntary and
believable. He further argued that merely because the confession is
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 301
recorded after a prolonged custody, there cannot be a presumption that
confession is not voluntary. This is because it is not necessary to know
when and how the accused would express his desire to make a
confession.
278. As regards certificates, it is submitted that when the format
is given in the rule, then merely because there is similarity in the
certificate either in the same format or near thereto in another
language, it cannot be discarded. The Hon'ble Supreme Court has
accepted the confession and upheld conviction even when confession
was without certificates of DCPs. Consequently, the objection raised by
the defence regarding the similarity of the questions and copying the
certificate does not hold water thereby discrediting the prosecution
evidence. He, therefore, placed reliance on a recent judgment of the
Division Bench of Hon'ble Bombay High Court in the matter of
Confirmation Case No. 5/2009, Sayed Mohd. Hanif Abdul Rahim
and others vs. State of Maharashtra, decided by (Hon'ble Mr.
Khanvilkar and Mr. Kode JJ).
279. However, the learned SPP has not tendered the text of the
said judgment nor it could be made available.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 302
280. It is further submitted by the learned SPP that all DCPs. have
recorded the confessions which are voluntary in nature by following due
procedure and after producing relevant station diary entries. The
confessions inter se corroborated each other. It is further argued that as
regards the confessions of A3 Ashokkumar, A5 Anil, A9 Sandip and
A10 Shrikrishna were over after the court hours, consequently, they
could be produced in the court of CMM only on the next working day.
Moreover, once the accused is taken to the court of CMM, it is not in the
hands of the carrier as to when the Magistrate would call him for
presenting in view of the heavy judicial as well as administrative
workload, of the CMM. He further argued that significantly there is no
mention by the learned CMM about any delay in producing the accused
before him and, therefore, the allegations to that effect are false and
baseless.
281. Most of the arguments of the defence counsel are on the
realm of surmises and, therefore, I am not inclined to discredit the
confessional statements and the evidence of other witnesses.
282. Now, another important and vital aspect unearthed in order
to substantiate the prosecution case is the evidence in the form of call
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 303
detail records of the mobile phones. This evidence in the form of CDR
has opened a can of worms. Prosecution has, therefore, examined P.W.
30 Charles Daniels Exh. 329, P.W. 34 Prashant Vasantrao Gawde Exh.
425 and P.W. 35 Shekhar Palande Exh. 431.
283. Before scrutinising the oral and documentary evidence to
that effect, the prosecution has tendered the following charts depicting
the call detail records amongst the accused on different dates and at
different times, including the mobile numbers, the date, the duration of
time, the calling number cell, id address and the corresponding record
on the particular page number. The charts can be depicted as under:
Tower Locations showing presence of A-12 Pratap Godase at the relevant time of giving money for Contract Killing – 'SUPARI'
NOTE : 'B' stands for EXHBIT No. 427 Colly.
Date Time Call Duration
Calling No Calling No Cell
ID address
Called No Called No Cell ID address
Page No
1 2 3 4 5 6 7 8
15/12/2006 135151 60 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai
9223317263 - B-7
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 304
400 027)
15/12/2006 135323 196 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai 400 027)
2220551270 - B-7
15/12/2006 135704 167 9223202133 (Pratap Godase)
16465 (24, Motibai Street, Agripada, Mahalaxmi, Cyrus Avenue Road, Mumbai 400 008)
9833873756 (Ajit Rane)
- B-7
15/12/2006 140014 204 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai 400 027)
9867027359 - B-7
15/12/2006 141341 83 2220551270 - 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai 400 027)
B-59
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 305
15/12/2006 141657 69 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai 400 027)
9833873756 (Ajit Rane)
- B-7
15/12/2006 141840 730 9223202133 (Pratap Godase)
31618 (Saat Rasta)
9223317263 - B-7
15/12/2006 143229 12 9223202133 (Pratap Godase)
31618 (Saat Rasta)
9322869861 - B-7
15/12/2006 151826 56 9223202133 (Pratap Godase)
21539 (GTB Morni CHS)
9223317263 - B-7
Tower Locations showing presence of A12 Pratap Godase at the relevant time of receiving money for Contract Killing – 'SUPARI'
NOTE : 'B' stands for EXHBIT No. 427 Colly.
Date Time Call Duration
Calling No Calling No Cell
ID address
Called No Called No Cell ID address
Page No
1 2 3 4 5 6 7 8
08/01/2007 130255 375 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East,
9833873756 (Ajit Rane)
- B-13
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 306
Mumbai 400 027)
08/01/2007 131018 10 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai 400 027)
9833873756 (Ajit Rane)
- B-13
08/01/2007 131238 80 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai 400 027)
9869148966 (Ajit Rane)
- B-13
08/01/2007 141040 42 9223202133 (Pratap Godase)
31618 (Saat Rasta)
9819251750 (Babu Gurav)
- B-13
08/01/2007 141359 31 9223202133 (Pratap Godase)
31618 (Saat Rasta)
9819251750 (Babu Gurav)
- B-13
08/01/2007 172508 41 9322468462 - 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai 400 027)
B-73
08/01/2007 174844 41 9820901814 - 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite
B-73
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 307
Gloria Church, Byculla East, Mumbai 400 027)
08/01/2007 174945 227 2240058561 - 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai 400 027)
B-73
08/01/2007 175545 11 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai 400 027)
2224014587 - B-13
08/01/2007 175619 51 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church, Byculla East, Mumbai 400 027)
9322869861 - B-13
08/01/2007 180034 39 9322869861 - 9223202133 (Pratap Godase)
17475 (Sant Savta Marg, Opposite Gloria Church,
B-73
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 308
Byculla East, Mumbai 400 027)
08/01/2007 181024 8 9223202133 (Pratap Godase)
31618 (Saat Rasta)
9833873756 (Ajit Rane)
- B-13
284. The second chart depicts the tower locations indicating
presence of A12 Pratap when he had been to Dagdi chawl, Byculla to
give contract killing i.e. 'supari' along with A6 Bhintade, A7 Surve and
A13 Rane, which corroborates the confessional statements of A9
Sandip Exh. 324 when he had stated that in the midst of December
2006, the members of Akhil Bhartiya Sena viz. A12 Pratap and A13
Rane along with two aged persons i.e. A6 Bhintade and A7 Surve had
been to Dagdi chawl with a brown coloured bag containing Rs.30 lakhs
as a contract money to kill Kamlakar Jamsandekar. It further finds full
corroboration to the confessional statement of A15 Patil Exh. 241
which I have already disucssed. A15 Patil as per the directions of A1
Arun Gawali, kept the bag containing Rs.30 lakhs in the cupboard. As
such, from this chart, it can be seen the presence of A12 Pratap in the
area of Byculla near Sant Savta Marg, opposite Gloria Church. He made
not only one or two calls, but six calls from the said spot of which two
calls were on the mobile of A13 Rane at 13:57:04: and second at
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 309
14:16:27.
285. The third chart depicts 12 calls on 8th January, 2007 by A12
Pratap to A13 Rane, A10 Shrikrishna and viceversa. First three calls
are from Byculla area and the call numbers 4 and 5 were from Saat
Rasta area when A12 Pratap called A10 Shrikrishna alias Babu. These
calls also corroborates the presence of A12 Pratap at Byculla Dagdi
Chawl from the confessional statements of A9 Sandip and A15 Patil
when an amount of Rs.60,000/ was paid to A12 Pratap by A9 Sandip.
286. The fourth chart depicts tower locations indicating presence
of A3 Ashokkumar in the vicinity of Asalfa village and communication
with other accused persons involved in the murder of Kamlakar
Jamsandekar. The said chart is self explanatory which need no further
clarification about dates which commenced from 15th February 2007 to
1st March 2007, comprising 50 calls.
287. The next chart indicates calls and tower locations of A3
Ashokkumar and A2 Pratap as well as the other accused involved in the
conspiracy on the day of murder of Kamlakar Jamsandekar, which is
most important. This chart indicates that there were as many as 16
calls on 2nd March 2007 between these accused. Call at Sr. Nos. 11 and
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 310
14 are significant in the sense that the first call at 16:48:17, from
mobile No. 9224676768 was made from the mobile of A3 Ashokkumar
to A12 Pratap i.e. No. 9223202133 for about 74 seconds. The tower
locations of the shooters i.e. A2 Vijay Giri, A3 Ashokkumar and A4
Narendra indicates that they were on Tilak Road, Ghatkopar East. It
has come in the confession that after the incident, they ran away from
the spot from Narayan Galli, Ghatkopar which clearly suggests that
incoming call of A12 Pratap was made from that area when A12
Pratap was at Shanti Park, Mira Road East, when he received the same.
It is the matter of record that Kamlakar was murdered at about 16.45
hours and within three minutes, the first call was made by A2 Vijay to
A12 Pratap. Immediately thereafter, at 16:50:08, A12 Pratap
intimated about it to A13 Rane and at 17:06:08 also talked to A5 Anil.
Immediately at 17:14:49, A12 Pratap called A3 Ashokkumar who by
that time reached Navapada Lane, Kurla West. Thereafter, A12 Pratap
called A10 Shrikrishna at 18:12:58 and then A10 Shrikrishna called
A12 Pratap at 22:52:20. What else is required to establish the well
connected accused after they succeeded in the conspiracy which they
had hatched to eliminate Kamlakar Jamsandekar?
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 311
288. The next chart indicates the calls and tower locations during
the relevant period after the murder i.e. 3rd March 2007 between A3
Ashokkumar and A5 Anil from Vikhroli to Borivali East. At that
relevant time, the money was collected by A2 Vijay from A10
Shrikrishna. A3 Ashokkumar and A5 Anil were with A2 Vijay at the
Borivali National Park where they received the amount.
Tower Locations showing presence of A3 Ashok Jaiswar in the vicinity of Aslafa village and communication with other accused persons involved in conspiracy prior to murder of Kamalakar
Jamsandekar
NOTE
(1) 'A' stands for EXHBIT No. 426 Colly (2) 'B' stands for EXHBIT No. 427 Colly. (3)Calls in Bold and Italic having corresponding entries in CDRs
of both the accused.
Date Time Call Duratio
n
Calling No Calling No Cell
ID address
Called No Called No Cell ID address
Page No
1 2 3 4 5 6 7 8
15/02/2007 225419 157 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump)
9323709336 (Anil Giri)
- A-47
17/02/2007 091107 65 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar
A-13
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 312
RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
17/02/2007 184508 53 9224676768 (Ashok Jaiswar)
19825 (GOREGAON - P.L.Lokhande marg, Buddha nagar, Govandi)
9323709336 (Anil Giri)
- A-47
17/02/2007 190342 35 9224676768 (Ashok Jaiswar)
19825 ( GOREGAON -P.L.Lokhande marg, Buddha nagar, Govandi)
9323709336 (Anil Giri)
- A-47
17/02/2007 224744 23 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
898 (Plot No. 52, Jai Hind Society, Vile Parle West, Mumbai 400 057)
A-13
18/02/2007 091906 36 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
A-13
18/02/2007 112154 14 9224676768 (Ashok Jaiswar)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- A-47
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 313
18/02/2007 192931 18 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
A-13
19/02/2007 081221 95 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump)
A-13
19/02/2007 091353 51 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village, Mumbai-84)
A-13
19/02/2007 091816 11 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
A-13
19/02/2007 100739 52 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mu
A-13
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 314
mbai-84)
19/02/2007 101301 62 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
A-13
19/02/2007 102607 40 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
9323709336 (Anil Giri)
- A-47
19/02/2007 104000 34 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
9323709336 (Anil Giri)
- A-47
19/02/2007 114334 27 9224676768 (Ashok Jaiswar)
19443 (Junction of Andheri Ghatkopar RD and Jangalesh
9323709336 (Anil Giri)
- A-47
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 315
war Mahadeo Mandir RD,Asalpha village,Mumbai-84)
19/02/2007 122156 23 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
20354 (Bhandup,Near Mangatram Petrol Pump)
A-13
19/02/2007 130255 23 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump.) (Bhandup,Near Mangatram Petrol Pump)
9323709336 (Anil Giri)
- A-47
19/02/2007 130719 27 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump.) (Bhandup,Near Mangatram Petrol Pump)
9323709336 (Anil Giri)
- A-47
20/02/2007 102710 28 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
A-13
20/02/2007 110150 22 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri
A-13
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 316
Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
20/02/2007 202033 1 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
21746 (Goregaon H/w)
A-5
20/02/2007 202104 14 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
21746 (Goregaon H/w)
A-5
22/02/2007 140527 112 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
7586 (S.N.Dubey road, Rawalpada, Dahisar(east))
A-5
22/02/2007 212344 7 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
21697 (KEDARAM ROAD MALAD E)
A-5
23/02/2007 215437 96 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- B-41
23/02/2007 220453 81 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- B-41
23/02/2007 220845 65 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandival
9819251750 (Babu Gurav)
- B-41
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 317
i, Andheri east)
23/02/2007 225345 156 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- B-41
23/02/2007 234219 33 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9819251750 (Babu Gurav)
- B-41
24/02/2007 202050 52 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump)
A-15
24/02/2007 203402 21 9223202133 (Pratap Godase)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- B-43
24/02/2007 211407 14 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
A-15
25/02/2007 113529 33 9323709336 (Anil Giri)
- 9223202133 (Pratap Godase)
4930 (Junction of M V Road and Baji Pisalkar Marg,Sakinaka Junction,Sakinaka,And
B-127
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 318
heri -East,Mumbai-59)
25/02/2007 114000 49 9223202133 (Pratap Godase)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
9819251750 (Babu Gurav)
- B-43
25/02/2007 114118 134 9223202133 (Pratap Godase)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
9323709336 (Anil Giri)
- B-43
25/02/2007 120241 19 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9819251750 (Babu Gurav)
- B-43
25/02/2007 121302 68 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- B-43
25/02/2007 152642 12 9323709336 - 9224676768 19441 A-15
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 319
(Anil Giri) (Ashok Jaiswar)
(Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
25/02/2007 154914 23 9223202133 (Pratap Godase)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
9323709336 (Anil Giri)
- B-43
25/02/2007 173524 17 9223202133 (Pratap Godase)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
9323709336 (Anil Giri)
- B-43
25/02/2007 180256 22 9323709336 (Anil Giri)
- 9223202133 (Pratap Godase)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
B-127
25/02/2007 180638 48 9323709336 (Anil Giri)
- 9223202133 (Pratap Godase)
19441 (Junction of Andheri
B-127
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 320
Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
25/02/2007 185329 12 9223202133 (Pratap Godase)
3459(Near ICICI Bldg, Chandivali, Andheri east)
9224676768 (Ashok Jaiswar)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
B-43A-15
26/02/2007 110613 43 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
20307(LBS Marg, Ghatkopar(W), Mumbai-86)
A-15
26/02/2007 202911 34 9819251750 (Babu Gurav)
- 9223202133 (Pratap Godase)
6113(inorbit mall,malad link road)
B-129
26/02/2007 232612 28 9819251750 (Babu Gurav)
- 9223202133 (Pratap Godase)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
B-129
28/02/2007 123618 24 9819251750 (Babu Gurav)
- 9223202133 (Pratap Godase)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
B-131
28/02/2007 123913 25 9223202133 (Pratap Godase)
19441 (Junction of Andheri
9323709336 (Anil Giri)
- B-45
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 321
Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
01/03/2007 195805 30 9819251750 (Babu Gurav)
- 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
B-131
Calls and Tower Locations of A3 Ashok Jaiswar and A12 Pratap Godase and other accused involved in the conspiracy on the day of
murder of Kamalakar Jamsandekar
Date Time Call Duratio
n
Calling No Calling No Cell
ID address
Called No Called No Cell ID address
Page No
1 2 3 4 5 6 7 8
02/03/2007 114247 42 9223202133 (Pratap Godase)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
9819251750 (Babu Gurav)
- B-45
02/03/2007 124213 42 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mu
A-17
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 322
mbai-84)
02/03/2007 130311 50 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
19441 (Junction of Andheri Ghatkopar RD and Jangaleshwar Mahadeo Mandir RD,Asalpha village,Mumbai-84)
A-17
02/03/2007 130932 38 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
9833873756 (Ajit Rane)
- B-45
02/03/2007 133234 11 9223202133 (Pratap Godase)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
9869148966 (Ajit Rane)
- B-45
02/03/2007 141553 10 9223202133 (Pratap Godase)
1363 (Plot No. 275/C, Tilak Road, Ghatkopar East, Mumbai 400 077)
9833873756 (Ajit Rane)
- B-45
02/03/2007 142245 22 9833873756 (Ajit Rane)
- 9223202133 (Pratap Godase)
- B-133
02/03/2007 142341 13 9223202133 (Pratap Godase)
20307(LBS Marg, Ghatkopar(W), Mumbai-8
9833873756 (Ajit Rane)
- B-45
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 323
6)
02/03/2007 144051 18 9819251750 (Babu Gurav)
- 9224676768 (Ashok Jaiswar)
3458 (Near ICICI Bldg, Chandivali, Andheri east)
A-17
02/03/2007 150102 90 9223202133 (Pratap Godase)
1138(Dindoshi, Opp. Patel Aluminium, Malad East, Mumbai 400 097)
9819251750 (Babu Gurav)
- B-45
02/03/2007 164817 74 9224676768 (Ashok Jaiswar)
1363 (Plot No. 275/C, Tilak Road, Ghatkopar East, Mumbai 400 077)
9223202133 (Pratap Godase)
1857 (Shanti Park, Mira Road East, Dist. Thane 401 107)
B-131B-133A-47A-49
02/03/2007 165008 59 9223202133 (Pratap Godase)
1857 (Shanti Park, Mira Road East, Dist. Thane 401 107)
9869148966 (Ajit Rane)
- B-45
02/03/2007 170608 25 9223202133 (Pratap Godase)
20049 (Behind Shell Petrol Pump , Munshi compound , WE Highway , Thane-401104)
9323709336 (Anil Giri)
- B-45
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 324
02/03/2007 171449 74 9223202133 (Pratap Godase)
7587 (S.N.Dubey road,Rawalpada,Dahisar(east))
9224676768 (Ashok Jaiswar)
17907 (Navapada Lane, Kurla Kamani, Kurla West, Mumbai 400 070 )
B-45A-25
02/03/2007 172158 37 9223202133 (Pratap Godase)
1233 (Thakur Complex, Kandivali East, Mumbai 400 101)
9819251750 (Babu Gurav)
- B-45
02/03/2007 225220 113 9819251750 (Babu Gurav)
- 9223202133 (Pratap Godase)
3459 (Near ICICI Bldg, Chandivali, Andheri east)
B-133
Calls and Tower locations during the relevant period showing journey of A3 Ashok Jaiswar from Vikroli to Borivali East
Date Time Call Duration
Calling No Calling No Cell
ID address
Called No Called No Cell ID address
Page No
1 2 3 4 5 6 7 8
03/03/2007 184742 27 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
9891 (off.LBS ROAD, Opp. Vikroli Bus Depot, vIKROLI WEST.)
A-37
03/03/2007 214202 12 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
17409 (Opp. IIT, Powai, Mumbai 400 076)
A- 17
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 325
03/03/2007 220829 60 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
1009 (Vijay Nagar, Marol Maroshi Road, Mumbai 400 059)
A- 17
03/03/2007 221139 36 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
3538 (Seepz , Andheri(E), Mumbai)
A- 17
03/03/2007 222721 25 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
21745 (Goregaon H/w)
A- 5
03/03/2007 223246 54 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19827 (GOREGAON -P.L.Lokhande marg, Buddha nagar, Govandi)
A- 5
03/03/2007 224153 46 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
19809 (MALAD Nirlon Industries)
A- 5
03/03/2007 231428 44 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
2243 (Near Omkareshwar Mandir,W E Highway, Borivali East)
A- 5
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 326
Calls between A3 Ashok Jaiswar and A5 Anil Giri after a long period since 03/03/2008 on the day of arrest of A12 Pratap Godse
and A13 Ajit Rane and thereafter
Date Time Call Duration
Calling No Calling No Cell
ID address
Called No Called No Cell ID address
Page No
1 2 3 4 5 6 7 8
11/03/2007 120902 31 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump.) (Bhandup,Near Mangatram Petrol Pump)
9323709336 (Anil Giri)
- A-49
11/03/2007 172506 38 9224676768 (Ashok Jaiswar)
17427 (L.B.S. Marg, Opp. Badwaik Hospital, Bhandup West, Mumbai 400 078)
9323709336 (Anil Giri)
- A-49
12/03/2007 185655 87 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump)
A- 17
12/03/2007 210312 16 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump)
A- 17
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 327
16/03/2007 104031 12 9224676768 (Ashok Jaiswar)
20355 (Bhandup,Near Mangatram Petrol Pump)
9323709336 (Anil Giri)
- A-49
16/03/2007 123829 81 9224676768 (Ashok Jaiswar)
1730 (Gokhale Road, Opp. Hotel Alok, Naupada, Thane 400 602)
9323709336 (Anil Giri)
- A-49
17/03/2007 185839 30 9323709336 (Anil Giri)
- 9224676768 (Ashok Jaiswar)
17074 (Kalyani Complex, Panch Marg, Andheri West, Mumbai 400 061)
A- 5
23/03/2007 191842 72 9224676768 (Ashok Jaiswar)
20371 (Bhandup MD Keni roiad, Bhandup east, Mumbai)
9323709336 (Anil Giri)
- A-49
289. The evidence of P.W. 34 Prashant Gawde indicates that he
was working with TATA Teleservices Maharashtra Ltd., Sanpada as a
Assistant Manager, Vigilance from September 2007 to June 2010. Prior
to it, he was working as a Sr. Executive in the same company. He
testified that Central server of TATA Communications is situated at
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 328
Hyderabad. There is a link provided to extract the data of the phone
calls by which he can extract the details of the phone calls. They
provided data as per their demand. As per the request of ACP, D1
(South), DCB,CID, Mumbai, by letter bearing No. 5/09 dated 3.1.2009,
the call details of Mobile No. 9224676768 and 9224770420 were
demanded from 1.12.2006 to 31.3.2007. Accordingly, he extracted
those details from the central server through the link provided to his
office. Those bears seal of his office on each page. The certificate of
call details with his signature and was duly proved which comprises 84
pages and is collectively marked as Exh. 426.
290. The document X63 is referred by the witness as per the
demand of ACP D1 (South), DCB,CID, Mumbai by a letter No. 156/08
dated 27.4.2009. The details of mobile no. 9223202133 were
demanded from 1.12.2006 to 12.3.2007 and of mobile no. 9224770420
from 1.7.2006 to 30.9.2006. He extracted those details from the central
server and accordingly furnished a certificate about it which bears his
signature and seal comprising 92 pages. It is marked as Exh. 427.
291. He clarified that the first column of the call details indicates
that call date on which call was made. Second column indicates call
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 329
starts time. Third column indicates duration in terms of seconds.
Fourth column indicates calling number. Fifth column indicates called
number. Sixth column indicates cell site ID (location). Seventh column
indicates ESN number. Eighth column indicates MINIMSI number.
Ninth column indicates incoming route and directions and tenth column
indicates outgoing route and directions. Date column indicates first the
year then the month and then the day. Second column regarding time
first indicates hours, thereafter minutes and lastly seconds. At some
places, cell site ID i.e. location is not shown in the extracts of the details
of the call that may happen because of roaming. Capital IN indicates the
call is received and OUT indicates the call was made.
292. He was crossexamined by learned counsel Mr. Pasbola on
behalf of Accused nos. 1, 2, 3, 7, 11, 15 and 20. there is nothing in his
crossexamination by which it can be said that he has given false
evidence or has any reason to depose false. It is a technical evidence,
which remained unrebutted during cross. There is no violation of
Section 65(B) of the Evidence Act which is about admissibility of
electronic record.
293. P.W. 35 Shekhar Palande Exh. 431 is working with TATA
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 330
Telecommunication Maharashtra Ltd. since 2004 as a Assistant Manager
at Turbhe, Navi Mumbai. He had produced application forms of three
mobile numbers, they are: 9223202133, 9224770420 and 9224676768.
He deposed that application in the name of Pratap Tukaram Godse
(A12) is annexed with the xerox copy of electricity bill and identity
proof along with agreement with customer. It was an agreement
between TATA company and customer. It bears seal of the distributor
i.e. Asha Electronics Pvt. Ltd. It also bears the name of the retailer i.e.
Vijay Communication. It is in the name of Pratap Tukaram Godse
(A12) for mobile No. 9223202133. He further deposed that old phone
number was 55202133 which later on converted into ten digits i.e.
9223202133. Initially, digits 9223 are added and previous digits
remained as it is. Capital ESN number indicates equipment Sr. No. i.e.
handset number. 3D60BD9D is the ESN number of the said mobile No.
9223202133. This particular handset is not sim card based handset.
Because of that, other Sim card cannot be inserted in it. The distributor
has to get executed the agreement with the customer. Accordingly, it
was executed which is annexed with the form having signature of the
customer and employee of the distributor. The said agreement is in
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prescribed form. The application and the annexures (five pages) are
marked as Exh. 432.
294. Second application is in the name of Ravindra Panchal of
mobile no. 9224770420. Even in his statement u/s. 313 of Cr.P.C.,
Surendra Panchal A8 admits that Ravindra Panchal is his real brother
and the number is in his name. P.W. 35 Palande has testified that the
application bears retailer's seal i.e. S.K. Enterprises. It is a prepaid Sim
card. The said document is proved at Exh. 433 collectively.
295. Third application is in the name of A3 Ashok Jaiswar
having mobile no. 9224676768. It bears retailer's stamp Jeet
Electronics, accompanied by copy of Pan card and ration card. There are
total three pages which are proved at Exh. 434.
296. He further testified that the CDR i.e call detail record Exh.
426 bears ESN number in Column No. 7. ESN number changes when
caller makes call from TATA to TATA. He was shown Exh. 427, page no.
1. According to him, ESN changes if the handset was changed. ESN
number of incoming calls are the only changes in Page no. 1/426. The
witness clarified that in Column No. 8, some of the places are blank
which occurred if there is network of other than TATA. If the caller and
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receiver of the mobile handset are both of TATA, then it reflects the
entries in CDR. In such case, both caller and receiver are reflected in
CDR. TATA company stores cell ID which locates the area of the caller
and receiver. The witness had produced the data of location ID in the
form of CDR along with a certificate as required by the Evidence Act. It
was prepared by P.W. 35 and is proved at Exh. 435. He deposed that
CDR is drawn by him from master computer. The said CDR is marked
as Exh. 436. He further testified that the data on the cell ID bears the
tower number and address of the area where the calls are made and
received. From the basis of the TATA number, a cell ID number can be
ascertained. The address of the cell site ID number are as under:
Sr. No.
Cellsite ID no.
Address
1 1363 Kailash Mension, Block no.275/C, Tilak Road, Ghatkopar (E), Mumbai 77.
2 1922 Oxford Chamber, Saki Vihar Road, Near L & T, Andheri (E), Mumbai 72.
3 1938 Vikas CHS, 'A' Wing, Sir M. V. Road, Andheri (E), Mumbai.
4 3458 Shivom, near ICICI Building, Chandivali, Andheri (E), Mumbai.
5 3459 Shivom, near ICICI Building, Chandivali, Andheri (E), Mumbai.
6 4929 Neelkhanth, M. V. Road, Sakinaka Junction, Sakinaka, Andheri (E), Mumbai.
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7 16465 A1 Hashmi CHS, 24 Motibai Street, Sairus Avenue Road, Agripada, Mumbai 400 008.
8 16914 Hotel Athithi, 77 A & B, Nehru Road, Vile Parle (E), Mumbai 400 057.
9 17475 Hotel Heritage, Opp. Gloria Church, Sant Savata Mal, Byculla (E), Mumbai 400 027.
10 17907 Bhabha Apartment, Navava pada lane, Kurla Kamani, Kurla (W), Mumbai 400 070.
11 19441 Khanna Apartment, Jangleshwar Mahadev Mandir Road, Andheri Ghatkopar Road, Asalpha village, Mumbai 400 084.
12 31618 Model Residency,Satrasta,Byculla,Mumbai 400 011.
13 31619 Model Residency, Satrasta, Byculla, Mumbai 400 011.
14 28402 Not available because cell Id is from out of Mumbai.
The witness testified that he had obtained the data of the cell ID from
Mumbai only. However, data of Cell ID No. 28402 is out of Mumbai
and, therefore, address is not available with P.W. 35 Palande. According
to him, range of each tower surrounds five kilometers approximately. If
any tower is busy, then another tower can catch the frequency.
297. During crossexamination, the learned counsel Mr. Pasbola
failed to shake his testimony or make any dent. Obviously, it being an
unimpeachable documentary evidence in the form of electronic record
about the call details, there is hardly any scope to show that these are
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 334
all fabricated documents. Section 65(B)(1) of the Evidence Act reads
thus:
“Admissibility of electronic records.(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible”.
All the conditions required in the said section are complied with and,
therefore, it is an admissible evidence without further proof or
production of the original as evidence of any contents of the original or
of any fact stated therein of which direct evidence would be admissible.
There is reason for this witness to fabricate the false documents to help
the prosecution as he is an independent witness who has no grudge or
axe to grind against the accused. Most of the questions are in the form
of seeking clarification about the abbreviations and other technical
aspects which the witness has aptly answered.
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298. P.W. 30 Charles Daniels Exh. 329 is working as a Nodal
Officer with Vodafone since 2006. He testified that the name and
address of the other details of the subscribers are stored as per the
documents submitted. CDR are also stored in the data. As a nodal
officer, he has to interact with law enforcement agencies and supply
them necessary information as asked for, which is stored in their system.
299. In view of the requisition from ACP, D1, South dated
3.1.2009 (Exh. 330), calling for certain details of five Sim numbers, the
details were submitted, with a forwarding letter Exh. 331. The data
was retrieved which is in the form of electronic record and furnished to
the police. The witness has produced the original record i.e. subscribers
form. The application forms were with respect to Mobile No.
9920698927 for the period 7.5.2007 to 4.9.2007. The documents to
that effect are proved at Exh. 406. Second application was with respect
to Mobile No. 9919251756 wherein the name of the applicant is
Shrikrishna A10, for the period from 22.7.2005 to 25.10.2006. A
driving licence in support of the same was produced. The documents
are proved at Exh. 408. The application form clearly depicts
photograph of A10 with his name. P.W. 30 Daniels testified that again
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the same number was allotted to A10, however, card was changed from
prepaid to postpaid. The entire documentary evidence to that effect is
proved at Exh. 409 which comprises seven papers. It also comprises
driving licence of A10 Shrikrishna.
300. The witness has been crossexamined on similar lines to that
of earlier witness by Mr. Pasbola who failed to make any dent in his
evidence which is unimpeachable and cogent and inspires full
confidence from the documents on record. On the contrary, it has been
reiterated that the applications are preserved in the warehouse and that
the department has provided this witness with all the documents. The
subscriber's details are maintained and operated by the customer service
department. The witness clarifies that on the basis of a password, he
can access the information stored by the customer service department.
On that basis, he can get name, address and activation date of the
applicant.
301. By reexamining, the SPP clarified that there is no seal on
Exh. 409 because it is an application for postpaid Sim card which has
been sold by the direct sales agent which bears a code of a particular
sales agency.
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302. It can be seen from the evidence of the aforesaid witnesses
visavis the documentary evidence produced by them that mobile no.
9223202133 is in the name of A12 Pratap Godse. The original
customer application form and documents of proof i.e. passport copy of
A12 Pratap bearing his photograph is proved at Exh. 432.
303. Mobile No. 9224770420 stands in the name of P.W. 8
Narendra Panchal, who is real brother of A8 Surendra Panchal. The
original customer application form along with Pan card and ration card
Exh. 433 proves that this phone belongs to P.W. 8 Narendra Panchal. It
was used by A8 Surendra. As it has come in the confession of A10
Shrikrishna Exh. 251 about the use of said number by A8 Surendra
and he used to contact A12 Pratap. Mobile No. 9224676768 stands in
the name of A3 Ashokkumar Jaiswar. The original customer's
application with the documentary proof i.e. ration card is proved at
Exh. 434.
304. Mobile No. 9819251750 stands in the name of A10
Shrikrishna @ Babu Gurav. The original customer's application form
along with documents of proof in the form of driving licence of an auto
rikshaw bearing his photograph and the ration card are proved at Exhs.
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408 and 409. From the confessions of A10 Shrikrishna and A5 Anil
Giri, it transpires that following mobile numbers were being used by the
following accused:
A5 Anil Giri : 9323709336
A13 Ajit Rane : 9869148966
The witness P.W. 30 Daniels, P.W.34 Gawde and P.W. 35 Palande have
categorically explained the different columns of the call detail record,
such as calling party, duration, calling number, call number, cell site ID,
ESN number etc.
305. If the call detail record (CDRs) are analysed, it furnishes
unimpeachable evidence about the connection of the accused inter se at
the relevant time as well as the tower locations from which the mobile
calls were transmitted or received.
306. It is the case of the prosecution that from last week of July
2006 to August 2006, A12 Pratap was residing in Chandivali, Powai
area in Mumbai, was contacting A8 Surendra who was in Rajapur, in
connection with the procurement of the country made handgun. The
location of mobile number of A8 Surendra can be seen to be at Rajapur
as majority of the calls received by him from landline number, the STD
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code number of Rajapur which is 02353 depicted in Exh.427 (colly). at
page nos. 157 to 185.
307. In view of confession of A10 Shrikrishna Exh. 251, A11
Narkar Exh. 264 and 268 as well as from the evidence of P.W. 11
Ramchandra, the handgun was ready in the month of August 2006 and
A10 Shrikrishna and A11 Narkar had been to the said village to fetch
the weapon a day before “Gokulashtami” i.e. Janmashtami. The CDR
indicates that on 27.7.2006, A12 Pratap contacted on mobile phone of
A8 Surendra. On 7.8.2006, A8 Surendra had called A12 Pratap who
was in Mumbai and till procurement of the handgun, Art. 5, there were
couple of calls between two of them and the last call being dated 15th
August 2006 at 16.13 hours, on which day, the weapon was delivered
by A8 Surendra to A10 Shrikrishna and A11 Narkar. It happened to
be the previous day of 'Gokulashtami'. This fact exactly matched with
the contents of the confession and interestingly there were no calls
between these two accused thereafter (Depicted in Judgment at Pg. nos.
143 to 145).
308. The prosecution case is that A12 Pratap and A13 Rane had
gone with A6 Bhintade and A7 Surve to Dagdi chawl, Byculla to give
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'supari' for eliminating Kamlakar Jamsandekar to A1 Arun Gawali
somewhere in midst of December 2006. The tower location of mobile
phone number of A12 Pratap dated 15.12.2006 in the afternoon can be
seen in the locality of Byculla i.e. Dagdi chawl (Depicted in Judgment at
Pg. nos. 303 to 305).
309. In the first week of January 2007, in the afternoon, A12
Pratap had again been to Dagdi chawl, Byculla when A15 Patil paid
him Rs.60,000/ through A9 Sandip as per the instructions of A1 Arun
Gawali. The tower location of mobile of A12 Pratap dated 8.1.2007 in
the afternoon is depicted in the locality of Byculla (Depicted in
Judgment at Pg.nos. 305 to 308).
310. It is the case of the prosecution that A12 Pratap and A13
Rane with the help of A10 Shrikrishna communicated with A2 Vijay,
A3 Ashokkumar, A4 Narendra and A5 Anil for eliminating Kamlakar
Jamsandekar and for about 15 days prior to the murder, A2 Vijay, A3
Ashokkumar, A4 Narendra and A5 Anil were keeping watch at
Kamlakar Jamsandekar, who was residing at Asalfa village.
The CDR and tower location of mobile number of A12
Pratap and A13 Rane shows that A3 Ashokkumar was in the locality of
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Asalfa village and Chandivali while A12 Pratap was in the locality of
Chandivali and they were in contact with each other as well as with
A13 Rane, A10 Shrikrishna and A5 Anil from 15.2.2007 to 2.3.2007.
Thereafter, the mobile phone of A3 Ashokkumar does not show this
location at all. (Depicted in Judgment at Pgs. 311 to 324).
311. It is the case of prosecution that Kamlakar Jamsandekar was
assassinated on 2.3.2007 at 16.45 hours. After committing the murder,
the shooters A2 Vijay, A3 Ashokkumar and A4 Narendra escaped from
the spot and contacted A12 Pratap from Narayan Galli, Ghatkopar. The
said contact was made by A2 Vijay from the mobile phone of A3
Ashokkumar.
The CDR and tower location shows that A12 Pratap
received an incoming call from the mobile number of A3 Ashokkumar
exactly at 16.48 hours through the tower location at Tilak Nagar,
Ghatkopar (Depicted in Judgment at Pg. no.323).
312. The learned counsel Mr. Pasbola argued at the bar that the
two calls on 2nd March 2007 between A3 Ashokkumar and A12 Pratap
do not match. The argument does not stand to reason for, one call is
not a corresponding call of the other. The call at 16.48 hours had been
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 342
made from the mobile of A3 Ashokkumar (Depicted in Judgment at Pg.
no. 324) whereas call which is made at 17.14 hours was received by
A12 Pratap (Depicted in Judgment at Pg. no. 324) and the
corresponding entries are reflected in incoming and outgoing calls of
A12 Pratap. The chart speaks for itself.
313. It is alleged by the prosecution that after the murder of
Kamlakar Jamsandekar, A10 Shrikrishna paid some contract amount to
A2 Vijay at Borivali. A2 Vijay had, in turn called A3 Ashokkumar and
A5 Anil at Borivali National Park, Borivali East for collecting the money.
Accordingly, both of them went to National Park, Borivali to receive the
money.
The CDR and the tower locations of A3 Ashokkumar shows
that he was continuously in contact with A5 Anil from 18.47 hours to
23.14 hours and the last call location was at the Borivali East (Depicted
in Judgment at Pg. nos. 324 & 325). Significantly there are no calls at
all on both these numbers, however, on 11.3.2007, at about 12.09
hours, the date on which A12 Pratap and A13 Rane came to be
arrested by Sakinaka police station in case of Kamlakar Jamsandekar's
murder, there was a direct contact. (Depicted in Judgment at Pg. nos.
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326 & 327).
314. Thus, the aforesaid evidence completely substantiates the
prosecution case regarding the contents of confessional statement visa
vis the connection and association of the accused persons through
mobiles with actual knowledge of being engaged in assisting and
conspiring with each other and with the members of the organized
crime syndicate.
315. The prosecution has succeeded in unearthing the
perpetrators of crime as well as the role of kingpin of the organized
crime syndicate, A1 Arun Gawali.
316. The prosecution has examined P.W. 9 Amrut Patil Exh. 182
on the point of recovery of diaries containing the accounts/details of the
organized crime syndicate of A1 Arun Gawali u/s. 27 of the Evidence
Act, at the instance of A15 Patil from the house of P.W. 10 Ankush
Gharkar. P.W. 9 Amrut was called by the Crime Branch in the month of
June 2008 in its office. He consented to act as a panch witness. A15
Patil was present at the Office of Crime Branch. A15 Patil made a
statement in his presence that a bag containing documents/books of
accounts of Gavali's gang had been kept by him with his friend.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 344
Accordingly, statement of A15 Patil was recorded, which was signed by
him and P.W. 9 Amrut as well as by another panch. The contents were
narrated by A15 Patil. The said memorandum is proved at Exh. 183.
The evidence of P.W. 9 Amrut further reveals that thereafter, the police
party started going towards the direction being given by A15 Patil in a
police vehicle. First they went to Byculla and then to Saat Rasta. They
entered a big gate. A15 Patil took them on the first floor. A person
came out of the said room to whom A15 Patil asked to hand him over
the bag which had given to him. He was P.W. 10 Ankush Gharkar. P.W.
10 Ankush gave a bag to A15 Patil which contained some documents
pertaining to the accounts which A15 Patil used to maintain. There
were 1012 diaries and some loose sheets of paper containing account.
There were two cell phones. The police officer marked the diaries with
Sr. nos. 1 onwards. The pages were counted in each diary. P.W. 9 Amrut
and copanch signed each of the diaries. The loose sheets also
numbered which were signed by the panchas. The police officer
examined the cell phones. The bag was of blakishash colour. The cell
phones were of Nokia company. After preparing the panchanama, it
was signed by both the panchas as well as by P.W. 10 Ankush. The
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witness has duly identified all the articles shown to him. The seizure
panchanama is thus proved at Exh. 183A. P.W. 9 Amrut has also
identified A15 Patil in the court. The three sealed packets which were
shown to the witness bears his signature. The cell phones are marked
at Art. 2 (colly.) and the wrappers at Art. “A”. There were 11 small
diaries, one register, an account book, nine documents in the nature of
affidavits, sale deed, agreement of development rights etc. There was
also a telephone diary. All these documents and diaries are collectively
marked at Art. 3. The witness has identified his signatures on each of
the diaries as well as the signature of copanch. The bag is marked at
Art. 4. The witness has also testified that A15 Patil took the police
party along with him to Gitai Building, Room no. 11. He is an
independent witness who had testified the manner in which he acted as
a panch witness on the point of the discovery of the aforesaid articles at
the behest of A15 Patil.
317. His cross reveals that he is a tailor by profession since last
14 years. He had no other source of income and had not acted as panch
in any of the police cases. Interestingly, it has been substantiated in the
cross that at Gitai building, he had put about 5060 signatures which
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confirmed that he indeed visited Gitai building along with the police as
per the directions of A15 Patil. Not only that, it has further been
fortified that he put all the signatures in one stroke after writing of the
panchanama was completed. The panchanama was read over to him.
The cross further indicates that as per his say only, two articles were
placed under seal in his presence, which were cell phones. He was at
Gitai building for about two and half hours. He does not remember
whether the bag was locked when it was delivered by P.W. 10 Ankush
which confirmed that the bag was delivered by P.W. 10 Ankush. The
cross further reveals that 89 persons proceeded towards Gitai building
and that during the period of two and half hour, no other person
entered the room nor anyone left the said room ruling out any
possibility of planting any of such articles in the said room by the police.
The cross further reveals that when they left the Crime Branch office,
they did not know that they were heading towards Gitai building. It also
confirms the fact that the police party was led by none other than A15
Patil as it was exclusively within his knowledge as to where he had
concealed the articles. Not only that, it is brought out from his mouth
that A15 did not give in his statement the name of his friend with
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 347
whom he had kept the bag nor he gave the address of the room. On the
day of the panchanama, P.W. 9 Amrut did not have any personal work at
the Crime Branch or at N.M. Joshi Marg police station. A constable
namely Adam enquired with this witness whether he would assist the
police by acting as a panch witness. He further deposed that police
officer Shelke prepared the statement made by the accused no.15 Patil.
The writing of the statement commenced simultaneously with the
statement made by A15 Patil. His entire statement was recorded.
Thus, from the evidence of this witness, it is crystal clear that the I.O.
has perfectly followed the procedure enunciated in Section 27 of the
Evidence Act while discovering the fact deposed to by A15 Patil i.e.
diaries, mobile phones, account books etc. at the behest of A15 Patil
from the house of A10 Ankush Gharkar. There is absolutely no reason
to disbelieve the convincing evidence of P.W. 9 Amrut which inspires full
confidence.
318. P.W. 10 Ankush Gharkar, however, turned hostile. He admits
that he is residing at Gitai Cooperative Housing Society i.e. Dagdi
chawl in Room No. 11 on the first floor since last eight years and
serving as a security guard for over 18 years. One can see as to how the
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witness has lied on somany material aspects. Though he has been
working as a security guard at the Dagdi chawl, he says that he does not
know anybody residing in his neighbourhood. Though he knew A1
Arun Gawali, ExM.L.A., but says that his relations are neither friendly
nor like neighbours. However, he meets A1 Arun Gawali whenever he
has some personal work i.e. admission in school for his children etc.
During elections, he says that he used to canvass for A1 Arun Gawali,
but never assisted him in his domestic work. He even refused to
identify A15 Patil, but identifies A20 Sunil Ghate. According to this
witness, A20 Sunil Ghate is an excorporator who is unemployed. He
had never worked for A20 Ghate. He does not know as to who is
looking after the Arun Gawali's work whenever he remains in jail.
According to P.W.10, Ankush after the arrest of A1 Arun Gawali, he was
enquired with by the police officer along with other inhabitants of the
building. The police officer asked him to sign a bunch of papers.
319. After declaring him hostile, the learned SPP crossexamined
the witness at length. However, the witness has denied all the
suggestions given by SPP Mr. Thakare. He states that he did not make
any statement before the police. He did not state before the police that
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A1 Arun Gawali used to assist him financially, in case of need and that
A15 Patil used to look after the financial affairs of A1 Arun Gawali
gang. The witness is confronted with portion marked “A” in his
statement which he denied to have made before the police. He was
unable to give any reason as to why it was so recorded. Accordingly, his
attention was drawn to portion marked “B”, which refers to A15 Patil
who, in the month of April 2008, approached this witness and asked
him to conceal the said bag and, therefore, this witness concealed the
said bag in a sofa in his house. Rest of the crossexamination relates to
the discovery of the diaries and articles made at the instance of A15
Patil in the presence of A9 Sandip, which has been denied by P.W. 10
Ankush. However, he admits his signature over the panchanama Exh.
183A. According to him, when he refused to sign the panchanama
without reading over to him, the police officer threatened him, and,
therefore, he signed the same. However, in the next breath, he admits
that his signature over Exh. 183A is his normal signature. If he was
threatened and forced to sign, the signature could not have been
normal. Be that as it may. It would be difficult to place full reliance on
this witness, however, in view of the evidence of P.W. 9 Amrut, it can be
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safely inferred that the aforesaid articles have been duly discovered by
A15 Patil from the house of P.W. 10 Ankush. Obviously, during his cross
by Mr. Pasbola, he supported the defence by stating that after obtaining
his signature on a written paper, the police gave him threats not to
make it public. For that reason, he did not disclose the said fact to
anybody. From the further crossexamination, it is apparent that though
he is a resident of Dagdi chawl for last 18 years, working as a security
guard, campaigning for A1 Arun Gawali in his election, he would
definitely deny the fact that A15 Patil had deposited the articles in his
house.
320. Even if the prosecution has proved the discovery u/s. 27 of
the Evidence Act, it is pertinent to note that merely because there are
certain names written in the diary and certain figures mentioned
therein, it is apparent from its perusal that it could not be said that the
persons named in those diaries had in fact were paying some amount to
A1 Arun Gawali or he was extorting the amount. The prosecution has
not proved that the handwriting in the said diary was of A15 Patil or
other accused or any other member of the organized crime syndicate of
A1 Arun Gawali. In the absence of proof of handwriting, as no
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handwriting expert has been examined, it would be difficult to place
complete reliance on the contents thereof as well as on the two mobile
handsets alleged to have been used by the members of the organized
crime syndicate. The evidence in the form of these articles is
insufficient to establish any link with A15 Patil in preparing these
documents. It is argued by Mr. Pasbola that the Hon'ble Supreme Court
has held that diaries are very weak piece of evidence and unless it is
cogently established as to the identity of the persons mentioned in the
diary, the same are insufficient and unreliable.
321. Even P.W. 25 Vishwanath Sawalaram Hinge who also is a
resident of Dagdi chawl, Room No. 4 and like P.W. 10 Ankush, he also
used to campaign for the election of A1 Arun Gawali has turned hostile
and denied the handwriting in the 12 diaries Article 3 (colly.), shown to
him by the prosecution. During the course of his evidence, he
volunteered that after the arrest of Dady which is the nick name of A1
Arun Gawali, he was continuously thrashed for three months by the
police, at the police station. He was taken to he Magistrate's Court for
recording his statement u/s. 164. He testified that the police
threatened him to give the statement before the Magistrate. He,
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therefore, gave a statement before the Magistrate as per the dictate of
the police officer. He testified that the court did not administer oath
before recording his statement. After declaring him hostile, the learned
SPP Mr. Thakare tried to impeach credit of the witness in his cross
examination. The witness identifies his statement marked as Exh. 308,
which was recorded by the Metropolitan Magistrate on 21.7.2008. He
further admits that he was again produced before the Magistrate on
22.7.2008 and answered the questions put to him by the said
Magistrate. The Magistrate had asked him whether he had any fear or
pressure upon which he answered that he had no grievance of any kind.
However, P.W. 25 volunteered that since the police officers were present
just outside and that they had told him that they would definitely come
to know about his statement and, therefore, he did not make any
complaint to the Magistrate. This appears to be probable in the given
circumstances. Though he admits that the statement was recorded on
the typewriter by the Magistrate as per his say, it cannot be lost sight of
the fact from the evidence that he was in the gaze of the police. He
admits that he did not make any complaint against the police since
22.7.2008. When he was confronted with paragraphs marked “A” to “D”
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in his statement dated 12.7.2007, he denied to have stated before the
police about A15 maintaining accounts of A1 Arun Gawali's income
and assisting him in writing his diaries containing the accounts. He
denied that the handwriting in the diaries Art. 3 are of A15 Patil and
himself. He denied that A1 Arun Gawali is a dreaded gangster and that
people have a fear about him and that he also has a fear and, therefore,
he could not give evidence against him. He denied that the entires in
the diary Art. 3 pertain to the entries/accounts of illgotten money
which are in his handwriting and in the handwriting of A15 Patil. It
can be safely said that this witness, like P.W. 10 Ankush, would support
the cause of A1 Arun Gawali being his henchman, yet, in the absence of
proof of the handwriting and the proof of authenticity of the contents of
the diary and entries, it would be difficult to place complete reliance on
it. The evidence of the prosecution on that point is insufficient and,
therefore, it cannot be accepted that the diaries and account books Art.
3 are the accounts of the illgotten money of the organized crime
syndicate of A1 Arun Gawali.
322. P.W. 28 Mahesh Nanji Shah Exh. 318 is a witness examined
by the prosecution who is said to be a owner of “Hetal Photo Studio”
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who used to pay extortion to the members of the organized crime
syndicate headed by A1 Arun Gawali, operating from Dagdi Chawl,
Byculla. He testified that since last 27 years, he is running the aforesaid
photo studio at Byculla. One Chandrakant Shah is the Secretary of All
India Photographic Trade and Industries Association. This witness has
been purchasing goods/material of his business from him. He has,
therefore, good relations with the said Chandrakant Shah. Chandrakant
Shah runs his business in the name and style as “Angel Photo”. This
witness also knows one Mahendra Shah who is a relative of
Chandrakant Shah since last many years. Mahendra Shah was
sometimes stays in America. This witness has also good relations with
Mahendra Shah.
323. According to this witness, in 2005, Chandrakant had
informed him that Mahendra had been receiving extortion calls in the
name of A1 Arun Gawali. Chandrakant had also informed him that in
Surat, Mahendra Shah had been shot at. Chandrakant had also
informed this witness that due to such calls, Mahendrabhai wanted to
pay Rs.2 lakhs per month to A1 Arun Gawali. It was a case of 2005.
Chandrakant alleged to have told this witness that he would keep Rs. 2
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lakhs at his studio for being paid to A1 Arun Gawali on behalf of
Mahendrabhai because the studio of this witness was in the area of
Byculla and it would be convenient to hand over the money. P.W. 28
Mahesh further deposed that for about three years, a man of
Chandrakant would keep Rs.2 lakhs at his studio every month and a
man of A1 Arun Gawali used to collect the said amount each month.
The payment of money to the man of Arun Gawli used to be made on
4th or 5th day of each month. One person by name of Prabhakar used to
collect money from this witness or sometimes, from his employee. He
also testified that Prabhakar would say that the entry of receipt of the
amount is made in their diary and that they should not worry. When
the witness was summoned by the Crime Branch in the month of July
2008 and enquired with him, he learnt that the amount was being
shown as received from “Hetal”. His testimony has been shattered
during crossexamination by Mr. Pasbola, as rightly so that this witness
can be said to be a got up witness of the prosecution for the following
reasons :
324. It is surprising that even though since last three years, the
extortion money was being paid to a man of Arun Gawali by this
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witness on behalf of the Mahendra, he did not disclose it to anybody.
There is no evidence about the alleged threats received by the socalled
Mahendra who is not examined by the prosecution nor his whereabouts
are brought to fore. Interestingly, P.W. 28 Mahesh admits that the
incident of extortion of money from Mahendra occurred in Surat 15
years ago. This is something quite strange as it is not the contention of
the prosecution that the extortion was made by or on behalf of A1 Arun
Gawali at Surat 15 years ago or that Mahendrabhai was shot at on
behalf of A1 Arun or by his henchmen. The fact that Chandrakant
informed this witness is also an omission. The reference of
Chandrakant in the evidence of this witness is an omission. However, in
the absence of the evidence of either Chandrakant or Mahendra, the
evidence of this witness is of hearsay nature and, therefore,
inadmissible, in the absence of any other corroborative evidence. It is
difficult to believe that a man (Mahendra) who is now staying in
America has been regularly paying a ransom of Rs.2 lakhs through
Chandrakant. The fact that the socalled Prabhakar who used to collect
the ransom from this witness informed him that the amount which was
being received is shown to have been received from “Hetal”, is also an
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omission. The witness too admits that he did not tell the police about
the said fact. The witness is unable to give description of the socalled
Prabhakar. Interestingly, this witness had no direct interaction with
Mahendrabhai but only with Chandrakant, as according to him,
Mahendrabhai and his children have been settled in America. The
witness has denied that he has cooked up a story in the name of
Chandrakant and Mahendrabhai just to save him. As such, the evidence
of this witness is required to be discarded in toto.
325. In order to show the organized crime syndicate of A1 Arun
Gawali, apart from the evidence of other witnesses i.e. P.W. 9 Amrut
Patil, P.W. 10 Ankush Dharkar and P.W. 25 Vishwanath Hinge, the
prosecution has also examined P.W. 6 Arunkumar Indrajit Singh, a cable
network distributor Exh. 169. I have already discussed the evidence of
P.W. 9 Amrut Patil on the point of seizure of diaries at the instance of
A15 Patil from P.W. 10 Ankush. P.W. 10 Ankush turned hostile and so
also P.W. 25 Hinge. However, this witness has supported the
prosecution case. He testified that he operates his business of cable
network in the name of “Ashish Vision Cable”, situated at C.B. Road,
Mazgaon. He is in the said business since 1989. He is in the business of
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distribution of cable network for “Hathway” Company since 1997.
326. According to this witness, in the month of June, 1998, he
received several threatening calls from a person claimed to be one
“Swami” who used to ask this witness to come to Dagdi chawl and meet
'Daddy' alias Arun Gawali. Initially, this witness did not care,but when
the said “Swami” started extending threats to his life that if he did not
go to Dagdi chawl to meet 'Daddy', the consequences will be serious
and, therefore, he was left with no option but to go to Dagdi chawl. He
went to Dagdi chawl in May, 1998 on the ground floor. Within five
minutes, a person came and took him to a room on the ground floor of
the Gitai building. He did not disclose his name. He introduced him to
one Sunil Ghate A20. The said Sunil Ghate A20 made a demand of
Rs.5 lakhs per month as an extortion money as this witness was doing
business in his area. The said Sunil Ghate A20 had also told P.W. 6
Singh that since 'Daddy' had asked him to make such demand, he was
asking for the same. Sunil Ghate A20 also threatened the witness of
dire consequences if the demand is not fulfilled. P.W. 6 Singh expressed
his inability to fulfill the demand, however, after negotiation, it was
reduced to Rs.1.5 lakh per month. He had to agree to pay Rs.1.5 p.m.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 359
to the extortionist. Accordingly, on 20th of each month, P.W. 6 Singh
would pay Rs.1.5 lakh to A20 Sunil Ghate. He had paid the amount
every month till May 2008. One Babu Dighe used to collect the amount
every month from him from the year 2006 to May 2008. Before that,
A20 Sunil Ghate used to collect the amount from P.W. 6 Singh. The
witness further deposed that sometimes, there used to be some delay in
payment, whereupon, A20 Sunil Ghate used to make him threatening
calls. The witness has identified A20 Sunil Ghate in the dock.
327. In cross by Mr. Pasbola, P.W. 6 Singh admits that before
12.7.2008, he did not give any complaint to the police against A20
Sunil or Babu and that for the first time, on 12.7.2008, he disclosed
about the calls and also about the fact that he was making payments
pursuant to the threats. He also admits that police did not call upon
him to give any documentary proof to show that he was paying Rs.1.5
lakh every month. Obviously, it cannot be expected that a person would
keep an account of such illlegitimate transaction. In his deposition, it
has come that the witness had 6000 recorded cable connections and a
staff of 1415 members. At that time, he would charge Rs.100/ per
connection.
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328. Now, again the cross reiterates that the first call of “Swami”
was received in the month of April 1998. The witness did not receive
any such call on his cell phone. He testified that he ignored the calls
received in the month of April and May 1998. During the calls in the
month of April and May 1998, he was asked to visit Dagdi chawl by the
caller who did not give any reason as to why he was called to Dagdi
chawl. “Swami” did not ask this witness to meet a particular person at
Dagdi chawl. The defence has brought out certain omissions with
respect of the statement of P.W. 6 Singh recorded before the Magistrate
which mainly pertains to asking him to meet A1 Arun Gawali at Dagdi
chawl by the said “Swami”. There is also an omission with respect to
the threats to his life given by the caller if he did not visit the Dagdi
chawl. The fact that A20 Sunil Ghate told him that 'Daddy' had asked
him to make such demand is also proved to be an omission and the fact
that whenever there used to be delay in making payment, A20 Sunil
Ghate used to give threats is also proved to be an omission. However,
the evidentiary value of this witness is required to be seen in view of his
statement given to the police u/s. 161 of Cr.P.C. The defence itself had
reiterated in his further crossexamination that P.W. 6 Singh did not
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meet “Swami” after June 1998 nor did he receive any call thereafter.
He further deposed that he had no occasion to visit Dagdi chawl after
his visit in June 1998 which obviously means he did visit the Dagdi
chawl in the month of June 1998. Further crossexamination in
paragraph 7 of P.W. 6 Singh confirms the fact that A20 Sunil Ghate
would visit his office to collect the amount. It was December 2006,
when A20 Sunil Ghate had been to his office. He had never made any
phone call to A20 Sunil Ghate or anybody in the Dagdi chawl, asking
for time tomake payment. The calls made by A20 were received by
him and sometimes by his staff. This portion of evidence substantiates
the fact that an amount of Rs.1.5 lakh was being extorted from him by
the organized crime syndicate through its member A20 Sunil Ghate
continuously from June 1998 till May 2008.
329. Further crossexamination of this witness mostly relates to
the nature of his business, asking the witness to tender documentary
evidence to show about the same and also asking for his income tax
return papers, which he had aptly answered and also tendered
documentary evidence in support of his business. The witness denied a
suggestion that at the Crime Branch, the police officer told him that he
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was going to be arrested on the ground of financially assisting A1 Arun
Gawali's gang, which would mean that there was some exchange of
money which can be safely inferred in regard to extortion by the
organized crime syndicate of A1 Arun Gawali. So far as the omissions
with respect to his previous statement to the police are concerned, they
are of minor nature and, therefore, would not make his testimony
unbelievable. The omissions are only with respect to the witness doing
business in their area and that A1 Arun Gawali is known as “Daddy”.
In paragraph 12 of the crossexamination of P.W. 6 Singh, several
questions were asked about the proprietorship of “Ashish Vision Cable”
by suggesting that one Reshmibai was its owner. According to the
witness, she was operator for “Ashish Vision Cable”. Thereafter, some
questions were asked about payment of entertainment tax to the
government and how to collect revenue etc., which are not relevant in
the matter. The witness had tendered all the documents asked for by
the defence such as the receipt of entertainment tax etc. are in the file,
for the period from 19931998. The documents are proved at Exh. 170
(colly.). It can be safely inferred that this witness is a businessman,
conducting his business faithfully by paying all the dues to the
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government including income tax. The documents are in his file with
respect to his income tax returns for the assessment year 20032004
and 20052008 are proved at Exh. 171 (colly.). Not only that, it is
brought in his crossexamination that the account of “Ashish Vision
Cable” is opened with Development Credit Bank, Hasnabad in 2003.
The registration certificate of “Ashish Vision Cable” for the period 2003
to 2010 is also produced along with other relevant documents at Exh.
172.
330. This witness also does the cable network business on the
N.M. Joshi Marg which is proved at Exh. 173 and the other documents
which are at Exh. 174 (colly.). He categorically admits that he had not
given any cable connection at Dagdi Chawl. His deposition further
reveals that when he had been to the said building, there were
occupants and since name “Gitai Building” found displayed over it, he
realized that it was Gitai building. He did not visit the said building
after June 2008. He had no occasion to interact with A1 Arun Gawali,
obviously, for the reason, when his henchman was extorting the money,
it was needless for the kingpin to directly threaten the witness. It was
asked whether the witness knows one Amar Yadav @ Nate to which the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 364
witness answered that the said person is his accountant for the last so
many years. Rest of the defence counsel declined to crossexamine the
witness.
331. Thus, having considered the evidence of P.W. 6 Singh visa
vis the confessional statement of A9 Sandip alias Sandy Exh. 324, A10
Shrikrishna Exh. 251 and A15 Patil Exh. 241 and other evidence on
record, the prosecution has established that A1 Arun Gawali with the
aid and assistance of A20 Sunil Ghate as well as A12 Pratap, A13
Rane and A15 Patil was running an organized crime syndicate. The
evidence of P.W. 6 inspires confidence and, therefore, I do not see any
reason to disbelieve the prosecution story as regards the organized
crime syndicate of A1 Arun Gawali.
332. It is pertinent to note that A10 Shrikrishna alias Babu
Gurav had stated in his confessional statement that during the
ceremony of 'Navratri', A12 Pratap and A13 Rane had extorted money
from builders and merchants out of which, some amount was retained
by him and rest of the amount was sent to A1 Arun Gawali through A9
Sandip.
333. Whereas, A9 Sandip in his confessional statement had
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stated that on 10th January 2007, there was an election of the union of
Mumbai Mahanagar Telephone Ltd. In each pocket of Mumbai, the
members of Akhil Bhartiya Sena were contesting the election. At that
time, as per the directions of A1 Arun Gawali, A15 Patil had sent A12
Pratap and A13 Rane to the Trombay Telephone Exchange and asked
them to create ruckus by forcibly making bogus voting during the
election. Accordingly, A12 Pratap and A13 Rane created terror at
Tromaby Telephone Exchange by inducing some of their henchman as
bogus voters. When they were produced before the court on the next
day, A1 Arun Gawali, through A15 Patil managed to take them out on
bail by paying the entire expenses of surety and the fees of advocate.
A15 Patil in his confessional statement has stated that he had been
looking after the financial matters of A1 Arun Gawali from 2001 and
that A1 used to pay him Rs.15,000/ per month plus some additional
amount. He was also known as “Big Bank” in the coterie of A1. These
aspects have been discussed again in order to substantiate the charge
u/s. 3(2), 3(4) of the MCOC Act, 1998.
334. P.W. 16 Sadanand Laxman Rasam Exh. 217 has testified on
the aspect of two previous chargesheets against A1 Arun Gawali in the
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year 2004 (Exh. 218 and 219), which are considered as previous
chargesheets for invocation of offence under Sec. 2(1)(d) of the MCOC
Act.
335. He testified that he was attached to Agripada Police Station
during August 2003 to 2005 as a police inspector. He had investigated
C.R. No. 77/2004. One Shaikh was a complainant in that case. A1
Arun Gawali along with one Hussein Shaikh, Arun Gulabrao Gawali,
Asha Gawali and some others were the accused, against whom, offences
u/s. 465, 467, 471, 420, 380, 506(II) r/w 34 of IPC were registered.
After investigation, a chargesheet was filed in the Court of
Metropolitan Magistrate (46th Court). The certified copy of the said
chargesheet is tendered in evidence and proved at Exh. 218. It is
testified that the case is pending in the Court.
336. He further deposed that on 31.10.2004, PI Uttamrao Jadhav
lodged an FIR bearing No. 189/2004 u/s. 341, 506(II), 323 of IPC
against A1 Arun Gawali, A20 Sunil Ghate and others. PI Jadhav
conducted investigation of the said crime, however, P.W. 16 Rasam has
filed the chargesheet since PI U. Jadhav had retired from service. The
trial is pending in the court. The certified copy of the chargesheet is
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proved at Exh. 219.
337. There is no effective cross of this witness by the defence.
There is only an admission that so far as the chargesheet at Exh. 219 is
concerned, A1 Arun Gawali has been acquitted of all the charges. The
conviction or acquittal of the accused is not the criteria while
interpreting Section 2(1)(d) of MCOC Act which reads thus:
“2(1)(d): “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one chargesheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence”.
Thus, the requirement has been fulfilled as there was an activity which
was prohibited by law. A cognizance of the offence has been taken by
the competent court. The offences are cognizable with imprisonment of
three years or more undertaken by A1 Gawali and his members of
organized crime syndicate and the offences were committed within the
preceding period of ten years.
338. P.W. 33 Divakar Bhaskar Shelke Exh. 414 was attached to
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DCB,CID, Unit III in the year 2007. He testified that on 28.4.2008, Sr.
PI Mr. Sandbhor sent one letter and informed him that he had arrested
four accused in the offence of dacoity (A2 to A4), who have had
committed the offence in C.R. No. 82/2007 of Sakinaka police station.
It was also informed by PI Mr. Sandbhor to this witness that the weapon
used in the said crime was also used in C.R. No. 82/2007 of Sakinaka
Police station. Sr. PI Mr. Sandbhor had also informed this witness that
A10 Shrikrishna alias Babu Gurav who belongs to A1 Arun Gawali's
gang was arrested in C.R. No. 52/2008 of DCB, CID, Unit III. The said
letter is proved at Exh. 415. P.W. 33 Shelke testified that during
interrogation of A10 Shrikrishna, while in police custody, it revealed
that he paid the amount. It seems that the amount was paid by A10
Shrikrishna to four accused i.e. A2 Vijay, A3 Ashokkumar and A4
Narendra, after executing Kamlakar Jamsandekar. PSI Sawant was sent
to fetch A6 Bhintade and A7 Surve who were suspects in the crime
registered at Sakinaka police station. This witness got an order from
Joint C.P. Mr. Deven Bharti that he shall investigate the said crime. This
letter is proved at Exh. 416. Thereafter, P.W. 33 Shelke directed PN Naik
to hand over the papers of C.R. No. 82/2007, which were in the custody
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 369
of Unit III to the Sakinaka Police station and made a station diary entry
for getting those papers from Sakinaka police station. He interrogated
A6 Bhintade and A7 Surve. He registered a crime vide C.R. No.
69/2008 (DCB,CID, Unit III) and arrested A6 Bhintade and A7 Surve.
He also arrested A2 Vijay, A3 Ashokkumar and A4 Narendra from the
custody of CIU Unit. An entry was made in the station diary at Sr. No.
21 on 29.4.2008 which is marked at Exh. 417. The xerox copy of the
said entry is marked at Exh. 417A.
339. P.W. 33 Shelke further testified that he produced A2 Vijay,
A3 Ashokkumar, A4 Narendra, A5 Anil, A6 Bhintade and A7 Surve
before 37th ACMM, Mumbai. He interrogated them during which it
revealed that the weapon used in the crime was prepared by A8
Surendra Panchal. His further investigation revealed as to how he
arrested rest of the accused, recorded statements of the witnesses,
obtained the scarbutt seized by Sakinaka police station by letters Exh.
418 and 419. He arrested A9 Sandip on 15.5.2008, A11 Dinesh
Narkar on 16.5.2008, who were already arrested in C.R. No. 52/2008.
He also obtained the gun and the other muddemal seized by CIU. The
letter to that effect is proved at Exh. 420.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 370
340. According to P.W. 33 Shelke, during investigation, it revealed
that A1 Arun Gawali was also involved in the said crime being a gang
leader. There were four offences registered against A1 Gawali
regarding pecuniary benefit. He, therefore, prepared a proposal to
prosecute A1 Gawali under the provisions of MCOC Act and sent it to
the Joint C.P., Crime, Mumbai through his senior for prior approval.
Accordingly, the prior approval was given by Joint C.P. Mr. Rakesh Maria
which is proved at Exh. 421. He handed over the case to ACP Durafe
P.W. 37. Thereafter, he deposed that on 28th June, 2008, A15 Patil gave
a memorandum statement and discovered certain diaries, mobile
handsets etc. of which I had already made a discussion in preceding
paragraphs. The said panchanama is already marked at Exh. 183.
341. The crossexamination reveals that P.W. 33 Shelke had
received the papers of Sakinaka police station on 23.4.2008 from PI
Daund and pursuant to the receipt of those papers, he was directed to
make further investigation. This is again clear that it was not a re
investigation, but further investigation in the matter after filing the
chargesheet by Sakinaka police station. However, he admits that he
had not informed the court about the further investigation u/s. 173(8)
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of Cr.P.C. I have already made an elaborate discussion on this point in
the preceding paragraphs.
342. The cross reveals that this witness pointed out to his senior
that the investigation was incomplete. He clarified that incomplete
investigation means, in the said case, handgun was not recovered and
seized. Certain questions were asked to this witness as regards the
investigation conducted by him more particularly, while interrogating
the accused persons on 28.4.2008 and 29.4.2008. In paragraph 25, the
witness testified that on 15.5.2008, he came to the conclusion that
MCOC Act is applicable to this case. He arrested A9 Sandip and A11
Narkar after interrogating A10 Shrikrishna. He had discussed with his
senior PI and P.W. 37 ACP Durafe before preparing a proposal under the
MCOC Act. The witness further admits that except A6 Bhintade and
A7 Surve, he did not enquire with anybody about the previous enmity
between the deceased and these two accused. Except these two accused,
he did not enquire about the reason of giving 'supari' to anyone else.
Rest of the crossexamination of this witness is insignificant for, except
bringing the minor errors, nothing has been surfaced in the further
searching cross. The law is well settled that the defence cannot take
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advantage of defective investigation, if the evidence of the prosecution
is otherwise relevant, cogent and reliable. It is not the rule of law that
each and every aspect is to be noted in the station diary or there should
be a written communication. The witness has testified that most of the
directions in regard to the investigation after 20.5.2008, were orally
given to him by ACP Mr. Durafe. For this reason, no flaw can be found
in the investigating process which appears to have been conducted
properly and as per law by this witness.
343. Minor omissions in so far as P.W. 4 Addu and P.W. 11
Ramchandra are proved, however, those are insignificant. The attention
of the witness was drawn to Exhs. 415, 416 and 418. Exh. 415 is the
letter addressed by the Sr. PI of DCB, CID, addressed to the Sr. PI of
Unit III of CIU, indicating the arrest of A2 Vijay, A3 Ashokkumar, A4
Narendra and A5 Anil interalia, seizure of the handgun from them and
their involvement in the instant crime. Exh. 416 is an office order by
ACP Mr. Deven Bharti which depicts that as per the order of Joint C.P.
(Crime), the investigation of C.R. No. 82/2007 of Sakinaka police
station had been handed over to the DCB,CID, directing the Sr. PI of
DCB,CID to collect all the relevant papers of the investigation from the
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Sr. PI, Sakinaka police station and to further prepare a plan of
investigation. Exh. 418 is a letter addressed to the Sr. PI, Sakinaka
police station by the Sr. PI, DCB, CID, requesting him to hand over the
scarbutt for forwarding the same to the FSL, Kalina, Mumbai. There is
no endorsement of receipt of these letters by the addressee. That does
not mean that those letters were not received by the addressee in the
normal course of business as these are public documents and unless
contrary is shown, there cannot be any automatic presumption. The
witness has categorically denied the suggestion that Exh. 415 to Exh.
419 are concocted documents and that they have been prepared only to
implicate A1 Arun Gawali with a conspiracy by the police officers.
344. During cross by advocate Mr. Moomen for A9, P.W. 33
Shelke admits that nothing was found on the person of A9 Sandip
when he was arrested. He also admits that he had not taken the search
of house of A9 Sandip. He also admits that when he produced A9
Sandip, he did not express his willingness to make the confessional
statement. He denied the suggestion that A9 Sandip has been falsely
arrested in this case. The remaining counsel adopted the cross
examination of the earlier counsel. Thus, the sum and substance of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 374
evidence of P.W. 33 Shelke is that he has properly conducted the
investigation as per the directions of P.W. 37 ACP Durafe.
345. P.W. 36 Hasan Gafoor Exh. 438 was the Commissioner of
Police, Mumbai, then, who had accorded sanction u/s. 23(2) of MCOC
Act Exh. 439, 440 and 441. According to this witness, he was working
as a Commissioner of Police, Mumbai from February 2008 to June 2009.
He was in the rank of an Additional D.G. One of his functions was to
accord sanction as per the MCOC Act for prosecution. He testified that
he had to accord sanction on the basis of evidence and as per the
provisions of MCOC Act. His evidence reveals that he had an occasion
to accord sanction in C.R. No. 69/2008 in DCB,CID which was a C.R. of
Sakinaka police station bearing C.R. No. 82/2007. He received the
proposal for application of MCOC Act with relevant papers. He had
gone through the papers and had a detailed discussion with the I.O.
about the said crime. He thereafter, arrived at a conclusion that
sanction under the provisions of MCOC Act is necessary. He disclosed
that the offence under MCOC Act had been committed by 19 accused
out of which, four were wanted accused and two were absconding. He
accorded the sanction on 17.7.2008 which is proved by him at Exh.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 375
439. Similarly, by following the same criteria, he accorded sanction in
respect of A20 Sunil Ghade on 20.11.2008, which is proved at Exh.
440 and A21 Ganesh Krishna Salvi on 28.1.2009 which is proved at
Exh. 441.
346. While crossexamining by Mr. Pasbola, P.W. 36 Hasan Gafoor
has admitted that he had considered the same four chargesheets while
according the aforesaid sanction. He testified that he required
approximately one week to accord sanction after receiving the papers,
which means that he did take considerable time for application of mind
before according sanction. According to him, after his subjective
satisfaction, he accorded the sanction. He denied the suggestion that
on the basis of notings which he had put, the sanction was accorded.
Since the witness has been retired on the date of his evidence, he could
not bring the original file which according to him, was available with
his office. In paragraph 7 of his cross, he admits that while according
sanction, which is at Exh. 439, what was available with him was the
reports of the officers and the papers of investigation. What else is
required for the sanctioning authority? This also fortifies the fact that
he did apply his mind. No doubt, his order does not disclose that he
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 376
had a discussion with the IO or any other officer in connection with the
said case, however, it is not the requirement of law. The witness was
aware about the investigation conducted by Sakinaka police station in
C.R. No. 82/2007 and the filing of chargesheet. The reference to that
effect can be noticed in Exh. 439. He further deposed that he had gone
through the prior approval granted by Joint Commissioner of Police Mr.
Rakesh Maria.
347. The attention of the witness was drawn to Exh. 439 which
indicates that except A1 Gawali, there is no reference of other accused
in the four chargesheets, which were referred while according sanction.
The fact that the competent court had taken cognizance of the offence is
apparent from the certified copies of the chargesheets. A question was
asked whether it is correct that three out of four chargesheets do not
disclose cognizance taken by the competent court. The witness
answered that he was satisfied that those cases were filed in the Court.
As a matter of fact, this question should not have been asked to the
witness as he is not competent to answer, for the reason that once
chargesheet is filed in the court of Magistrate and the case is
registered, it means that the Magistrate has taken cognizance of the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 377
offences.
348. The learned counsel for the accused has, therefore, drawn
attention of the witness to Section 2(1)(d) and (e) of MCOC Act.
Though the witness has testified that private and personal disputes are
out of the way of Section 2(1)(d) and (e) of MCOC Act as it is the duty
of the court to interpret the provisions of law and to see whether
provisions of law have been properly made applicable or not. This
question was irrelevant so far as P.W. 36 is concerned. It is the question
of interpretation of law which is to be argued by the lawyers. Of
course, the sanctioning authority being one of the highest police officer
in the rank of the Additional Director General of Police is expected to
know the basic provisions of MCOC Act, yet so far as interpretation and
applicability is concerned, it is the domain of prosecution, defence and
the Court.
349. Rest of the learned counsel adopted the crossexamination
conducted by Mr. Pasbola.
350. Thus, it can be seen that nothing has been elicited in cross
which would render his testimony unacceptable in so far as the sanction
u/s. 23(2) of MCOC Act is concerned.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 378
352. The last witness of the prosecution is the main investigating
officer P.W. 37 Ashok Tukaram Durafe, Exh. 446, who was posted as
ACP, D1, Mumbai on 22.4.2007. He testified that Unit III of the
DCB,CID had registered C.R. No. 69/2008. On 20.5.2008, Joint C.P.
gave approval to apply MCOC Act in C.R. No. 69/2008. On the same
day, API Shelke P.W. 33 handed over further investigation of the said
crime to him. He consulted with API Shelke P.W. 33 and gone through
the papers. He applied the provisions of MCOC Act. He interrogated
the accused persons who were arrested in this case. His evidence
further reveals as to how earlier it was a case registered at Sakinaka
police station vide C.R. No. 82/2007 u/s. 452, 302 r/w 34 of IPC and 3,
25 of Arms Act and submission of chargesheet by the said police
station. This aspect has already been clarified in the earlier part of the
judgment.
352. P.W. 37 has thereafter, with all details and particulars
testified about the correspondence made by him with Joint C.P. Mr.
Rakesh Maria by which the seven accused had expressed their
willingness to give their confessional statements and accordingly, the
recording of their confessional statements by P.W. 15 DCP Dabhade, P.W.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 379
17 DCP Vinaykumar Chaube, P.W. 18 DCP Dilip Sawant, P.W. 19 DCP
Phadtare, P.W. 20 DCP Dhoom, P.W. 23 DCP Vijaysingh Jahdav. P.W. 29
Brijesh Singh. I had already discussed about the correspondence
between the aforesaid DCPs visavis the Joint C.P. Mr. Rakesh Maria
and P.W. 37 ACP Mr. Durafe. In paragraph 11, this witness has deposed
that while sending the aforesaid accused for recording their
confessional statements, all precautions were taken such as the accused
were sent in veil and even the entries in the respective case diaries have
been made at the respective police station where the accused were kept
after recording the first part. This aspect has already been discussed by
me and, therefore, needs no repetition. He testified about the sending
of muddemal articles to the CFSL, Kalina for analysis and recorded the
statement of concerned constable. He testified that since there were so
many crimes registered against A1 Arun Gawali and, therefore, he
recorded statements of PI Ramane and PI Rasam P.W. 16 of Agripada
police station who investigated C.R. No. 164/2004, 77/2004 and
189/2004 of Agripada police station. He also recorded statement of PI
Sawant of Kalachowki police station who had investigated C.R. No.
159/2005. He obtained certified copies of chargesheets of final report
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 380
in C.R. No. 164/2004, 77/2004, 189/2004 and 159/2005. Thereafter,
he testified about the recording of statement of other witnesses i.e. P.W.
12 Motilal Chaudhari, P.W. 7 Ms. Manali. Arrangement of TIP through
SEO Kambli P.W. 24.
353. The witness has produced and proved three identity cards of
A15 Patil Art. 22 (colly.). A perusal of these three identity cards of
A15 Patil show that these pertain in three different capacities. The first
identity card reveals that he is a worker of Maharashtra Rajya Mathadi
Transport and General Kamgar Union, depicting his photograph and the
seal of the said Union. The second identity card appears to have been
issued by the Chief Secretary of the Maharashtra State Legislative
Assembly, Vidhan Bhavan, Mumbai, Nagpur, which indicates that he is a
member of Akhil Bhartiya Sena of A1 Arun Gawali and the third
identity card reveals that he is also a member of Mumbai BhajiPala
Asanrakshit Kamgar Mandal. The panchanama has been admitted by
the defence which is proved at Exh. 443. P.W. 37 ACP Mr. Durafe has
testified that the letter sent by Additional Secretary of Legislative
Council of Maharashtra dated 20.2.2009, which was in reply to the
letter of A1 Arun Gawali clearly indicates that apart from A15 Patil,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 381
Exh. 461 which is an important document on the letter head of the
Legislative Council of Maharashtra, indicating the names of the
following persons who are recognized as the members of the political
party (Akhil Bhartiya Sena), who have been issued with identity cards
to enter into the Sachivalay and also in the Vidhan Bhavan. They are as
under: (1) Suhas Eknath Vilankar as an Assistant, (2) Vishwanath
Savleram Hinge, Clerk, (3) Nilesh Mahadev Ingavale, Typist, (4) Vasant
Jayram Raut, Typist, (5) Ankush Gajanan Gharkar,Peon,(6)Suresh
Raghunath Patil, Clerk and (7) Rajendra M. Sadvilkar, Assistant. These
persons were issued Pass No. 0044 to 0050 to enter into the office of
Legislative Council. What else is required to prove the association of
A15 Patil along with other accused, being the members of organized
crime syndicate of A1 Arun Gawali in the name of his political party
called Akhil Bhartiya Sena.
354. P.W. 37 ACP Mr. Durafe has thereafter testified about the
seizure of 12 diaries at the instance of A15 Patil from Room No. 11
The witness P.W. 10 Ankush Gharkar about which I had already made a
discussion in the preceding paragraphs. The final report in C.R. No.
164/2004 is at Exh. 454 and final report in C.R. No. 159/2005 is
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 382
proved at Exh. 455. These are the two chargesheets. A cognizance
has been taken by the competent court. His evidence further reveals
about the collection of ballistic report in respect of the scarbutt and the
handgun Art. 5. Thereafter, he testified about the correspondence with
the Nodal Officers of mobile phone companies which has already been
discussed by me. He also testified that during investigation, it revealed
that A15 Patil purchased a motorbike bearing No. MH01MA 3482.
Another motorcycle i.e. Bajaj Discover which was used for keeping
watch on deceased Kamlakar Jamsandekar, could not be traced out.
However, its number was fake.
355. During the crossexamination by Mr. Pasbola, the witness
reiterated that he also investigated C.R. No. 52/2008 (MCOC Special
Case No. 5/2008), which is pending in this court in which A1 Arun
Gawali, A10 Shrikrishna, A13 Rane, A11 Narkar are arraigned as
accused. This witness investigated the said crime after getting the prior
approval from the authority. He admits that, in the present case, prior
approval was accorded on 20.5.2008 for which the proposal was sent
one day before. He discussed the matter with IO. After putting his
remarks on the proposal, he had forwarded the same to his superior.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 383
He also admits that during the process, his senior officers i.e. Additional
C.P. and Joint C.P. had a discussion with him. This clearly indicates that
there was an application of mind by the concerned authority.
Thereafter, he also admits that about the previous investigation
conducted and completed by the Sakinaka police station and the
submission and final report as well as committal of the case. He also
admits that he had a discussion with the IO of C.R. No. 82/2007 as
regards the necessity of further investigation into the crime registered at
Sakinaka police station. Though it is viewed with doubt by the defence
that prior approval in C.R. No. 52/2008 was obtained on 29.4.2008 and
on the same day, this witness had received papers of investigation of
C.R. No. 82/2007, I do not feel anything unusual in the same as it can
be said to be just a coincidence. I do not find anything which can be
said to be illegal or against the provisions of the Code of Criminal
Procedure. The endeavour of Mr. Pasbola through out the cross
examination of this witness is to point out the minor technical errors
and mistakes which do not give any fatal blow to the crux of the matter
in the light of the discussion of evidence of prosecution witnesses as
well as the confessional statements of some of the accused. I have
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 384
already stated that there is nothing unusual to doubt the investigation.
356. P.W. 37 ACP Mr. Durafe has been further extensively cross
examined on a very minor and technical aspects about the arrest of each
accused who were referred for recording their confessional statements
to the concerned DCPs. and how and when these accused were
interrogated as well as their first expression indicating willingness to
give confessional statement. The cross also reveals that the defence has
tried to bring on record as to what advice he should have given to the
API Shelke which he did not and what advice he did not give which he
ought to have given. The crossexamination further reveals that P.W. 37
ACP Mr. Durafe did not ask PI Shelke as to why he did not call Saili
Jamsandekar i.e. daughter of the deceased Kamlakar, Neeta Shah and
Mayuresh Tandel for TIP. The reason has already been discussed in the
earlier paragraphs. However, P.W. 37 ACP Durafe has clarified that
because of her examination, Saili Jamsandekar refused to come.
357. The attention of this witness is drawn to Exhs. 470 and 471
which pertains to TIP in respect of A18 Mohd. Saif and A19
Badreaalam who have been discharged, in which Neeta Shah and
Mayuresh Tandel were the identifying witnesses. This aspect has also
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 385
been discussed by me that since the accused have already been
discharged and that the identifying witnesses had not actually seen the
assault nor the weapons in the hands of those accused, there is no
propriety to discuss on that aspect.
358. In paragraph 69, the witness was confronted with the
retracted confession of A9 Sandip which is dated 1.7.2008 and the
witness was asked whether he had filed any reply on it to which he
answered, he was not aware about the said fact. Similarly, his attention
was drawn to the retracted confession of A10 Shrikrishna on 17.6.2008
and by A15 Patil on 26.6.2008. This aspect has already been dealt with
by me and its effect in view of the latest pronouncement of the Hon'ble
Supreme Court in case of Mohd. Farooq Abdul Gafur and anr. vs.
State of Maharashtra reported in 2010 (3) AIR BOM R (S.C.) 551,
which is commonly known as “Milind Vaidya Case”.
359. In paragraph 89, the witness admits that A2 Vijay, A3
Ashokkumar, A4 Narendra and A5 Anil were not acquainted with A6
Bhintade and A7 Surve. It was not necessary that they should know
each other. In case of conspiracy u/s. 120B of IPC, it is not necessary
that all the conspirators and coconspirators should know each other,
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 386
especially when in the given case, the link between A2 Vijay, A3
Ashokkumar, A4 Narendra and A5 Anil is established with A10
Shrikrishna, A12 Pratap and A13 Rane and, therefore, this is not
something which can affect the prosecution story.
360. In paragraph 94 of the crossexamination, P.W. 37 ACP Mr.
Durafe was asked by the defence whether he had recorded two
incidents while recording the statement of P.W. 2 Nilkanth Bane which
pertains to the touching of the feet of A6 Bhintade by deceased
Kamlakar and second one when blood pressure was shot up, P.W. 37
answered that he did not record those two incidents. He further
testified that while recording statement of P.W. 2 Nilkanth Bane, he did
not ask him to narrate those two incidents before the court. This
important admissions brought during crossexamination by the defence
are significant since it is not the suggestion of the defence that no such
statement was made by P.W. 2 Bane during his statement u/s. 161 of
Cr.P.C. What has been simply answered by this witness that he did not
ask this witness to narrate those facts before the court. It can be
presumed that P.W. 2 Bane was trying to give all the true facts to P.W. 37
ACP Mr. Durafe, however, this witness appears to have ignored the
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 387
material aspects while recording the statement of the witness u/s.
161(3) of Cr.P.C. It appears that P.W. 2 Bane was acquainted with the
aforesaid material facts and circumstances, but P.W. 37 had turned a
nelson's eye. Thus, the aspect of 'motive' in the mind of A6 Bhintade is
apparent.
361. In paragraph 95 of the crossexamination, P.W. 37ACP Mr.
Durafe clearly deposed that he had told the witness to narrate the fact
of unauthorised structures of nephew of A7 Surve, only to avoid
repetition. Therefore, there is no clear mention of the fact of
unauthorised construction in his statement. Thus, it is explicit from this
part of evidence in cross that P.W. 2 Bane indeed had stated before this
witness about the unauthorised structures of the nephew of A7 Surve.
362. There is no reference of the word “Daddy” in the statement
of P.W. 6 Arun Singh, but that would not amount to a material omission
as regards the payment of extortion money to the organized crime
syndicate of A1 Arun Gawali. It is a matter of judicial notice that A1
Arun Gawali is also known as 'Daddy' in the underworld. I have already
discussed the evidence of P.W. 6 Arun Singh. The defence has also
reiterated that the witness was running the business in the name of
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 388
“Ashish Vision Cable”. It is of common experience that when a
prosecution witness comes to a Court to depose, normal tendency of the
witness is to exaggerate certain facts which is a normal tendency of any
human being, however, it does not necessarily mean that the witness is
stating something false or is lie. Improvements and minor omissions
are bound to be there, for it cannot be expected of a witness to
reproduce each and every word from his statement before the police. If
a witness reproduces his statement, he can be branded as a tutored
witness. Likewise, what has been deposed by P.W.12 Motilal and other
witnesses is nothing but some exaggeration which does not discredit
their testimony which are otherwise believable, if tested, on the touch
stone of Law of Evidence. The testimony of this witness as well as the
testimony of P.W. 4 Addu and P.W. 7 Manali is found to be consistent
with one another as regards the time, place and manner of occurrence.
363. It is pertinent to note that crossexamination of the
prosecution witnesses by the defence has not been done in conformity
with Section 162 of Cr.P.C. Many a times the witnesses were directly
confronted with their statements recorded by the police u/s. 161 of
Cr.P.C.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 389
364. In paragraph 115 of the crossexamination, the witness was
confronted with a document which pertains to a complaint made by A2
Vijay to the Hon'ble High Court which is treated as Writ Petition No.
2361/2008 and by A4 Narendra dated 24.8.2008, which is filed in S.C.
No. 482/2008. The witness denied the alleged illegal arrest of A2
Vijay, A3 Ashokkumar, A4 Narendra and A5 Anil and their detention
at Kalbadevi Road near Govindram Lachhiram Hotel. The witness
denied the torture and illegal detention as well as extracting forced
confessional statements. Having considered the evidence on record vis
avis their statements u/s. 313, it can, prima facie, be said that the
accused have made false allegations. The witness has also denied that
due to the pressure of his superior, A1 Arun Gawali has been falsely
implicated who was a sitting MLA at the relevant time. Interestingly,
the defence has not adduced any evidence to substantiate the fact as
regards the false implication of A1 Gawali to jeopardize his political
career by the rival group. Even during cross, there is no suggestion
given to the witnesses specifically as to who was behind this entire
exercise to falsely implicate A1 Gawali. The defence therefore, appears
to be improbable, unacceptable and unbelievable. Even A1 Gawali
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 390
could have examined himself, but he did not, which also speaks volume.
365. While crossexamination on behalf of A6, Mr. Kulkarni, the
learned counsel reiterated the fact of arrest of A2 Vijay, A3
Ashokkumar, A4 Narendra and A5 Anil on 26.4.2008 in C.R. No.
66/2008 u/s. 399 by DCB,CID and their rearrest in the present case on
29.4.2008 as well as the TIP on 20.6.2008. As regards the delay in
conducting TIP, I had already discussed that there was no delay. Even
the witness testified that as soon as the witnesses were traced out on
18th June 2008, he proceeded to arrange for the TIP. He also reiterated
that due to her problem informant P.W. 7 Manali, could not come.
366. In paragraph 118, it is specifically suggested to the witness
that he did not enquire about the complaints made by deceased
Kamlakar and P.W. 1 Komal Jamsandekar to the police about the threats
given by A6 Bhintade and A7 Surve. This also suggests that indeed
there were complaints by the deceased and his wife to the police about
the threats at the hands of A6 Bhintade and A7 Surve. Not only that,it
has also been admitted by this witness that he came to know about the
possible motive behind the commission of the murder of Kamlakar
while perusing the statement of Mr. Bailkar.
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 391
367. Mr. Moomen, the learned counsel for A9 Sandip cross
examined P.W. 37 ACP Mr. Durafe in which the witness admits that A9
Sandip has not been prosecuted in any other case and is not the owner
of movable or immovable property.
368. As such, from the entire testimony of this witness, certain
important aspects of the prosecution case such as motive, membership
of A15 Patil, recording of confessional statements of seven accused by
following due procedure etc. have been fortified.
369. The argument of the defence that approval u/s. 23(1)(a) of
the MCOC Act as well as the sanction u/s. 23(1)(b) is without
application of mind. I have already discussed as regards the sanction
accorded by P.W. 36 Mr. Hasan Gaffur with due application of mind and
after following the procedure. It is crystal clear from the record as well
as the earlier discussion that between January 2007 and 2.3.2007, the
accused had hatched a criminal conspiracy along with others and have
aided and abetted each other in assassinating Kamlakar Jamsandekar.
The law is well settled that even if there is a lacuna in approval, it can
be filled in by the prosecution at the stage of leading evidence during
trial. This aspect has been substantiated by the Division Bench of the
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Hon'ble Bombay High Court in case of Anil Sadashiv Nanduskar vs.
State of Maharashtra in 2008 (3) MLJ (Crimes), 650. Paragraph 14
of the said judgment can be reproduced, which reads thus:
“14. Reverting to the facts of the case, if one peruses the approval dated 28th August 2004, undoubtedly it refers to the effect of consideration of all the materials which were placed before the authority and thereafter grant of approval for initiating proceedings under MCOC Act. Undoubtedly, while referring to the acts of the accused, all the ingredients of the definition of the “organized Crime” do not seem to have been incorporated in the order of approval. However, that itself cannot be a justification for interference in holding the approval to be invalid or bad in law, in view of the fact that the prosecution is entitled to establish the same by leading necessary evidence. Prima facie the competent authority appears to have taken into consideration all the materials which would reveal or disclose the commission of the offence of organized crime involving the appellant/accused. It is too premature to arrive at any conclusion to the contrary merely on reading of the order of approval”.
As such, in view of this clear position of law, the argument does not
hold water.
370. As regards the reference of four cases against A1 Arun
Gawali, it can be seen that two chargesheets u/s. 380 and 387 of IPC
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 393
which involves a pecuniary gain. Thus, there is due compliance of
Section 2(1)(d) of MCOC Act.
371. So far as A6 Bhintade and A7 Surve are concerned, they
can be verywell said to be the persons who have aided and abetted the
organized crime syndicate in killing Kamlakar Jamsandekar. They have
played an active role in view of the discussion hereinabove by paying
Rs.30 lakhs to A1 Arun Gawali while accompanying with A12 Pratap
and A13 Rane. Their act can indeed be said to be an abetment in view
of Section 2(1)(a)(i)(iii) of MCOC Act. They were part and parcel of
the conspiracy. In case of Bharat Shah vs. State of Maharashtra
reported in 2003 BCR (Cri) 947, it has been held that the definition of
abetment under MCOC Act would inclusive and include the ingredients
of Section 107 of IPC. The said view has again been reenforced by the
Hon'ble Supreme Court in case of Ranjit Singh Sharma vs. State of
Maharashtra and another reported in (2005) 5 SCC 294. Two
conspiracies were hatched between A1 Arun Gawali, A6 Bhintade, A7
Surve and A12 Pratap and A13 Rane in the middle of December 2006
for purely monetary reasons as well as for the elimination of Corporator
Kamlakar Jamsandekar. Another conspiracy by the same persons had
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 394
been hatched in January 2007 for different reasons. A6 Bhintade and
A7 Surve were the common accused in both the chargesheets. Thus, it
is clear that these different accused have different motives at different
points of time with a one common agenda to kill the Corporator
Kamlakar Jamsandekar. The prosecution has brought on record that
A20 Sunil Ghate is actively associated with the organized crime
syndicate of A1 Arun Gawali. The evidence is weak in so far as
involvement in the conspiracy of assassination of Kamlakar
Jamsandekar is concerned. Nevertheless, A20 Sunil Ghate's indulgence
in various criminal unlawful activities and his involvement in organized
crime has been sufficiently established by the prosecution in view of the
confessional statements of A10 Shrikrishna, A15 Patil and A9 Sandip
as well as from the evidence of P.W. 6 Arunkumar Singh, which has been
sufficiently proved that he is an active member of the ortanized crime
syndicate of kingpin A1 Arun Gawali. Not only that, during the
absence of A1 Arun Gawali, he used to act as the head of the organized
crime syndicate which involved in extortion, collecting ransom from the
builders, cable operators etc.
372. Similarly, the prosecution has not adduced cogent and
JUDG.MCOC SPC.7/08@16/08@3/09@SC529/07 395
convincing evidence in so far as A11 Narkar and A21 Ganesh Salvi are
concerned or their direct involvement and role in the conspiracy and
murder of Kamlakar Jamsandekar. So far as A8 Surendra Panchal is
concerned, as already discussed, when the weapon Art. 5 was procured
from him, he was not aware that the accused were going to commit the
offence of murder of Kamlakar Jamsandekar. The prosecution has
failed to bring on record sufficient evidence against him for violation of
the provisions of Arms Act i.e. manufacturing a country made handgun.
The evidence as regards the breach of provisions of Arms Act is only
against A2 Vijay Giri. These three accused, according to me, are
required to be given a benefit of doubt after having considered the
entire circumstances and evidence on record. Thus, A8 Surendra
Panchal, A11 Dinesh Narkar and A12 Ganesh Salvi are acquitted of the
offences with which they are charged.
373. Much has been argued by the defence on the point of
Section 2(1)(d) of the MCOC Act by contending that except A1 Arun
Gawali, the prosecution has not relied upon any of the previous charge
sheets against any of the accused. The law is well settled on this aspect.
What is required to be seen is the nexus or the link of the person with
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organized crime syndicate. The link with organized crime syndicate is
the crux of the term “continuing unlawful activity”. The Division Bench
of the Hon'ble Bombay High Court, in case of Govind S. Ubhe vs State
of Maharashtra reported in 2009 ALL MR (Cri) 1903 (Smt. Ranjana
Desai & R.G. Ketkar, JJ.), held and I reproduce the relevant paragraphs
thus:
“35. It is now necessary to go to the definition of 'continuing unlawful activity'. Section 2(1)(d) defines 'continuing unlawful activity' to mean an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one chargesheet have been filed before a competent court within the preceding ten years and that court have taken cognizance of such offence. Thus, for an activity to be a 'continuing unlawful activity'.a) the activity must be prohibited by law;b) it must be a cognizable offence punishable with imprisonment of three years or more;c) it must be undertaken singly or jointly;d) it must be undertaken as a member of an organized crime syndicate or on behalf of such syndicate;e) in respect of which more than one chargesheet have been filed before a competent
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court”.
“36. The words 'in respect of which more than one chargesheet have been filed' cannot go with the words 'a member of a crime syndicate because in that case, these words would have read as 'in respect of whom more than one chargesheet have been filed'”.
“37. But even otherwise, if all provisions are read together we reach the same conclusion. Section 2(1)(d) which defines 'continuing unlawful activity' sets down a period of 10 years within which more than one chargesheet have to be filed. The members of the crime syndicate operate either singly or jointly in commission of organized crime. They operate in different modules. A person may be a part of the module which jointly undertakes an organized crime or he may singly as a member of the organized crime syndicate or on behalf of such syndicate undertake an organized crime. In both the situations, the MCOCA can be applied. It is the membership of organized crime syndicate which makes a person liable under the MCOCA. This is evident from section 3(4) of the MCOCA which states that any person who is a member of an organized crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum of fine of Rs.5 lakhs. The charge under the MCOCA ropes in a person who as a member of the organized crime syndicate commits organized crime
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i.e. acts of extortion by giving threats, etc. to gain economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate. Therefore, if within a period of preceding ten years, one chargesheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said chargesheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the 'organized crime syndicate' is the crux of the term 'continuing unlawful activity'. If this link is not established, that person cannot be roped in”.
“44. In the light of this, we are of the opinion that the words 'more than one chargesheet' contained in Section 2(1)(d) refer to unlawful activities of the organized crime syndicate. Requirement of more than one chargesheet is qua the unlawful activities of the organized crime syndicate and not qua individual member thereof”.
“45. Mr. Desai's submission that inasmuch as the appellant's name is not mentioned in the approval granted under Section 23(1)(d) of the MCOC Act, the prosecution qua the appellant is vitiated, must also be rejected. In its judgment in Vinod Asrani Vs. State of
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Maharashtra (Special Leave Petition (Cri) No. 6312 of 2006 dated 21.2.2007, the Supreme Court has considered the same submission and observed that non inclusion of the accused in the approval under Section 23(1)(d) of the MCOC Act is not fatal to the investigation qua that accused. The Supreme Court observed that Section 23(1)(a) provides a safeguard that no investigation into an offence under the MCOC Act should be commenced without the approval of the concerned authorities. Once such approval is obtained, an investigation is commenced. The Supreme Court further observed that those who are subsequently found to be involved in the commission of the organized crime can very well be proceeded against once sanction is obtained against them under Section 23(2) of the MCOC Act”.
374. In case of Dinesh Madhav Bhondve vs. State of Maharashtra
reported in 2007 (2) Mh.L.J. (Cri) 718 (A.M. Khanwilkar, J.). The said
position has been clarified. I quote the relevant paragraph as under:
“a) the sine qua non for institution of offence punishable under the present Act i.e. MCOCA, is concerned, is essentially in relation to an offence of organized crime. If organized crime committed has resulted in death of any person, that is punishable in terms of section 3(1)(i). IN all other cases, it is punishable under section 3(1)(ii). The ortanized crime as perceived by this Act is of continuing unlawful activities as contained in section 2(1)(d), which in turn provides
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that the activity is prohibited by law for the time being in force which is a cognizable offence punishable with imprisonment of 3 years or more, undertaken singly or jointly as member of the organized crime syndicate or on behalf of such syndicate. If however, the activity prohibited by law, though qualifies the abovesaid requirement of clause (d), is committed, but, if it is first of its kind, that will not become continuing unlawful activity. For that, repetition of such activity within the stipulated period would attract clause (d), as it postulates that, for such activity more than one charge sheet have been filed before a competent court within the preceding period of 10 years”.
As such, the requirement of more than one chargesheet is qua the
unlawful activities of the organized crime syndicate and not qua
individual member thereof.
375. Thus, after having considered the entire facts, circumstances
and evidence on record, I hold that the prosecution has proved its case
beyond all reasonable doubts against A1 Arun Gawali, A2 Vijay Giri,
A3 Ashokkumar Jaiswar, A4 Narendra Giri, A5 Anil Giri, A6
Sahebrao Bhintade, A9 Sandip alias Sandy Gangan, A10 Shrikrishna
alias Babu Gurav, A12 Pratap Godse, A13 Ajit Rane, A15 Suresh Patil
and A20 Sunil Ghate. The prosecution has proved a charge u/s. 3(1)
(ii) and 3(4) of the MCOC Act so far as A1 Arun Gawali, A9 Sandip
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Gangan, A10 Shrikrishna Gurav, A12 Pratap Godse, A13 Ajit Rane,
A15 Suresh Patil and A20 Sunil Ghate.
376. The prosecution has proved the charge against A2 Vijay
Giri, A3 Ashokkumar Jaiswar, A4 Narendra Giri and A5 Anil Giri u/s.
3(2) of the MCOC Act.
377. The prosecution has proved a charge against A2 Vijay Giri,
A3 Ashokkumar Jaiswar, A4 Narendra Giri u/s. 452 r/w Sec. 34 of the
IPC.
378. The prosecution has proved a charge against A2 Vijay Giri,
A3 Ashokkumar Jaiswar, A4 Narendra Giri and A5 Anil Giri u/s. 302
r/w 34 and 120B of the IPC r/w Sec. 3(1)(i) of the MCOC Act.
379. The prosecution has further proved a charge against A1
Arun Gawali, A6 Sahebrao Bhintade, A9 Sandip Gangan, A10
Shrikrishna Gurav, A12 Pratap Godse, A13 Ajit Rane & A15 Surersh
Patil, under Sec. 3(2) of the MCOC Act, for hatching conspiracy to
eliminate the deceased Kamlakar Jamsandekar.
380. The prosecution has proved a charge against A1 Arun
Gawali, A6 Sahebrao Bhintade, A9 Sandip Gangan, A10 Shrikrishna
Gurav, A12 Pratap Godse, A13 Ajit Rane and A15 Suresh Patil u/s.
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3(1)(i) of the MCOC Act. Ofcourse, the charge has also been proved
against the deceased accused A7 Sadashiv Surve who died after the
arguments were heard, u/s. 3(2) and 3(1)(i) of the MCOC Act.
However, the case stands abated with respect to deceased A7 Sadashiv
Surve.
381. The prosecution has proved a charge u/s. 3 r/w 25(1B) of
the Arms Act against A2 Vijay Giri.
382. The prosecution has failed to prove the charge u/s. 3 r/w 25
(1B) of Arms Act against A8 Surendra Panchal, A10 Shrikrishna
Gurav, A11 Dinesh Narkar and A12 Pratap Godse.
383. Lastly, the prosecution has failed to bring home the guilt of
A8 Surendra Panchal, A11 Dinesh Narkar and A21 Ganesh Salvi
under any of the charges with which they are charged.
384. There are absolutely no material omissions, or
contradictions on record. The defence raised by the accused appears to
be improbable, unacceptable and unbelievable. I, therefore, hold the
aforesaid accused guilty as above.
385. At this point of time, I take here a pause to hear the accused
on the point of sentence.
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24th August, 2012. (P. K. CHAVAN) Special Judge,
City Civil & Sessions Court, Greater Mumbai.
386. As regards the sentence to be awarded to each of the
accused, I have heard each of them independently.
387. A1 Arun Gawali has prayed for leniency on the ground that
he is aged about 60 years, having children and aged mother who are his
dependents. He urged that the period undergone by him during trial is
sufficient and he be released. I haven't found any repentance on his
face.
388. A9 Sandip Gangan has also urged for leniency on the
ground that there is nobody to look after his 80 years old father. A9
Sandip Gangan is a bachelor, aged about 41 years.
389. A10 Shrikrishna Gurav has urged for a minimum sentence
by saying that he is not at all concerned with this case.
390. A12 Pratap Godse has also prayed for minimum sentence
and a set off in view of the period undergone by him during trial. He
further urged for leniency as his mother is suffering from cancer. His
younger brother who is prosecuting studies in Engineering college is
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also depending upon him.
391. A13 Ajit Rane has also prayed for leniency being
handicapped. He is also a bachelor.
392. A15 Suresh Patil prayed for his acquittal by contending that
his parents are old. On being asked to submit on the point of sentence,
he prayed for leniency.
393. A20 Sunil Ghate submits that he is the only earning
member of the family and, therefore, prayed for leniency.
394. A2 Vijay Giri submits that he has not committed the
offence. He is a poor person and is a bachelor. On the point of
sentence, he did not say anything.
395. A3 Ashokkumar Jaiswar also prayed for leniency by
contending that he is the only earning member of the family, having a
mother and three younger brothers. He too is a bachelor.
396. A4 Narendra Giri urged for leniency on the ground that he
has to look after his parents, brothers, two kids. He is a rikshaw driver
by profession.
397. A5 Anil Giri has also urged for leniency on the ground that
he has two marriageable sisters and parents. He is a bachelor. He
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submits that he knew nothing about the crime. Since his mother is ill,
he prayed for a leniency.
398. Lastly, A6 Sahebrao Bhintade urged that he is innocent and
has been falsely implicated because he had helped the widow of the
deceased Kamlakar Jamsandekar. He is an agriculturist. The deceased
was like his son. On the question of sentence, he did not say anything.
399. Mr. Thakare, the learned SPP while arguing on the point of
sentence has strongly advocated the capital punishment in so far as A1
Arun Gawali, A2 Vijay Giri and A12 Pratap Godse are concerned. He
submits that A2 Vijay had executed the murder of the deceased by
using the handgun which was recovered from him and who was
identified by P.W. 7 (Manali). So far as A12 Pratap is concerned, it is
submitted that he is the first person who come up with an idea of
procuring a weapon for the use of the members of organized crime
syndicate for settling and extorting money from businessmen and
builders which is evident from the testimony of P.W.11 Ramchandra.
Secondly, he is the person who took A6 Bhintade and the deceased
Surve to A1 Arun Gawali at Dagdi chawl. Thirdly, he is the person who
paid Rs.30 lakhs to A1 Arun Gawali out of which, he got Rs.60,000/.
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Fourthly, he asked coaccused, A10 Shrikrishna whether some persons
would be available for killing. He is the person who asked P.W. 4 Addu
to show the house of the deceased Kamlakar to the shooters, especially
A2 Vijay, A3 Ashokkumar and A4 Narendra. Next, he is the person
who arranged for money and weapon. He is associated with Akhil
Bhartiya Sena, headed by A1 Arun Gawali which is the political front of
the organized crime syndicate and he was the first person to whom the
killing was reported by A2 Vijay.
400. In so far as A1 Arun Gawali is concerned, it is argued by Mr.
Thakare that he is at the helm of the organized crime syndicate who is
indulged in illegal activities of extortion and contract killings. This has
been surfaced from the oral evidence of P.W. 6 Arun Singh and P.W. 28
Mahesh Shah and from the confessions of A9 Sandip Gangan, A10
Shrikrishna Gurav and A15 Suresh Patil. Thus, according to Mr.
Thakare these three accused stand on different footings than the others
and, therefore, deserve a death penalty.
401. On the other hand, Mr. Pasbola, the learned counsel
appearing on behalf of Accused nos. 1 and 2, strongly objected the
award of death penalty to accused nos. 1 and 2 by contending that it
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would be violative of Article 21 of the Constitution. According to Mr.
Pasbola, Section 27(3) of the Arms Act and Section 31(A) of the NDPS
Act are the only sections which provides only death penalty. However,
Section 3(1)(i) of MCOC Act, provides death or imprisonment for life.
According to Mr. Pasbola, since the Legislator had provided both the
sentences and, therefore, the present case is to be viewed in view of the
ratios laiddown by the Hon'ble Supreme Court in various cases more
particularly in case of Santosh Kumar satishbhushan Bariya vs. State
of Maharashtra reported in (2009) 2 SCC (Cri) 1150.
402. It is the contention of Mr. Thakare that MCOC being a
special statute, the criteria of rarest of rare case need not be made
applicable in this case. He drew my attention to the statements of
objects and reasons. Mr. Thakare has, therefore, placed reliance on
certain authorities of the Hon'ble Supreme Court which I shall deal with
hereinafter. He argued that a sitting MLA hatches a conspiracy and for
monetary gain executes a sitting corporator who has a public figure is a
special reason, in view of Section 354(3) of Cr.P.C. for awarding a death
penalty. The act of A1 Arun Gawali is a culmination of his past history
and, therefore, it is more serious than Section 302 of the IPC. Mr.
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Thakare has, therefore, tendered certain documents in view of Section
17 of the MCOC Act. He drew my attention that A1 Arun Gawali is
already facing a trial under the provisions of MCOC Act in MCOC
Special Case No. 5/2008, which is a prior case, pending in this court
which itself is an aggravating circumstance against A1 Arun Gawali.
He also brought to my notice that in the past, A1 Arun was detained
under the Maharashtra Prevention of Dangerous Activities of Slumlords,
bootleggers, Drug Offenders and Dangerous Persons Act by order dated
18th September 1997, passed by the then Commissioner of Police,
Mumbai. The said order of preventive detention was challenged by A1
Arun Gawali by filing a Habeas Corpus Petition before the Hon'ble High
Court through his wife Asha Arun Gawali. However, the writ petition
was dismissed by the Hon'ble Bombay High Court and the said
judgment is reported in MANU/MH/0471/1999. As such, this also an
aggravating circumstance as per Section 17 (1)(b) of the MCOC Act.
403. I have gone through the judgment in Writ Petition No.
1118/1997, decided by the Hon'ble High Court on 31.8.1998 in case of
Smt. Asha Arun Gawali vs. State of Maharashtra and others. In the said
case, the Hon'ble High Court had given the detail history of A1 Arun
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Gawali and his indulgence in different criminal activities in the past as
well as registration of offences and the cases of extortion. The said
petition was dismissed.
404. There is no doubt about the indulgence of A1 Arun Gawal
in various crimes in the past. The question is whether the present case
falls in the rarest of rare category as enunciated by the Hon'ble Supreme
Court in case of Bachan Singh Vs. State of Punjab reported in (1980)
2 Supreme Court Cases 684, for the effective compliance of sentencing
procedure u/s. 354(3) and Section 235(2) of Cr.P.C.,wherein sufficient
discretion is a precondition. Strict channeling of discretion would also
go against the founding principles of sentencing as it will prevent the
sentencing court to identify and weigh various factors relating to the
crime and the criminal such as culpability, impact on the society, gravity
of offence, motive behind the crime etc. This has also been a ratio laid
down in the Bachan Singh's case. It appears that the prosecution has
emphasized on awarding capital punishment only to A1 Arun Gawali
for, the learned SPP Mr. Thakare has not much stressed on awarding
capital punishment to A2 Vijay Giri and A12 Pratap in comparison
with A1 Arun Gawali. The State has not submitted material so far as
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A2 Vijay is concerned about the past involvement in any of the criminal
activities other than the present one. He is a young man whose
occupation is a rikshaw driver. It is not the contention of the
prosecution that there is no chance of his reformation. Looking to the
economic background of A2, Vijay and his young age and the
circumstances in which he had committed the offence, I feel that he can
be given a chance of reformation and his case does not fall within the
ambit of rarest of rare case.
405. As regards A12 Pratap, it is argued by Mr. Rasal that he is a
member of the political party of A1 Arun Gawali viz. Akhil Bhartiya
Sena. He is not a criminal. He runs a business of travelling and looking
to his young age, Mr. Rasal has prayed for life imprisonment. No doubt,
A12 Pratap also is a young man and it is not the case of the prosecution
that there is no chance of his reformation. He, therefore, does not
deserve the capital punishment in view of the ratio laiddown by the
various decisions of the Hon'ble Supreme Court which shall be
discussed hereinbelow.
406. Mr. Pasbola while strenuously arguing for A1 Arun Gawali
submits that every murder is heinous, but only because it is a murder,
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death sentence cannot be given. Kamlakar Jamsandekar was not the
first elected representative who was shot dead in his house. This is not
the first case wherein the murder has been premeditated. He also
submits that despite death sentences, the crime rate has not gone down.
In the instant case, despite being reformed A1 Arun Gawali being
hauled up for his past crimes for which he was never convicted. It is
true that unless a person is proven guilty, he should be presumed
innocent. Nothing has been brought on record to show that even after
all these years that the criminal trials which are pending against A1
Arun Gawali had resulted in his conviction. Unless the same is shown
by the documents on record, he should be presumed innocent.
Presumption of innocence is an human right. This has been held by the
Hon'ble Supreme Court in case of Mohd. Farooq Abdul Gafur and
another vs. State of Maharashtra reported in (2010) 14 SCC 641.
407. Mr. Thakare on the other hand, has placed reliance on some
of the authorities which I quote hereinbelow:
(1) Mithu v. State of Punjab reported in
(1983) 2 Supreme Court Cases 277.
In this case, Section 303 of IPC was struck down being unconstitutional.
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It is held that imposition of mandatory sentence of death on commission
of murder while undergoing life imprisonment in jail or outside jail
when on parole, without giving any scope for application of judicial
discretion considering facts and circumstances; of each case held, harsh
oppressive and unjust. Deprivation of procedural safeguards of Sections
235(2) and 354(3), Cr.PC to such convicts, held, unjust and arbitrary.
(3) State of Maharashtra Vs. Bharat Chaganlal
Raghani & ors. reported in (2001) 9 Supreme
Court Cases 1.
This case is under the provisions of TADA in which weapon like AK 47,
revolver, pistol etc. were used and several bullets were fired. Mr.
Thakare, the learned SPP drew my attention to the first three
paragraphs of the judgment which are as under:
“Under the heaps of voluminous record in the form of various paperbooks spread over thousands of pages, lies the hidden story relating to the new “merchants of death and destruction”. Upon dissection, when peeped into, it reflects the woeful situation
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prevalent in the society where writs of the organized criminal gangs run which affect the peaceful and innocent citizens of the country. This world of gangsters, popularly known as the “underworld”, comprises various gangs headed by notorious dons for whom the only valuable thing in life is “wealth” and the useless thing, the “life” of others. Deaths are sold by these dons at their asking price and purchased by those who resort to have immediate results for their enrichment with the deflation of their otherwise inflated money bags. To this underworld, the unemployed, thoughtless and dejected youths are attracted and the bosses of the gangsters leave no stone unturned to utilize the services of such frustrated and misled youth for the commission of crimes, to further their evil designs. Contract killings by employing mercenary killers, after receipt of a consideration known as supari are the order of the day, particularly in commercial cities of the country where the race for getting enriched overnight is going on at jet speed”.
2. Mumbai (with its erstwhile name Bombay), known as the commercial capital of the country, is at the top where such crimes are committed every now and the. Piling of the cases in the courts of law without their disposal particularly with respect to disputes relating to property is reported to have created satellite centres of unusual trade where private courts are held by the gangsters and disputes are solved according to the will of those who can pay as per demand of the criminal dons. It is
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said that the unaccounted accumulation of black money in the hands of a few has encouraged the gangsters to widen the scope of their activities. Because of the money and muscle power, they are in a position of procuring highly sophisticated weapons. Such gangs collect money from various businessmen, land developers, persons carrying on illegal activities in gambling dens, drug traffickers etc. Such collected money is termed as “protection money” which in Marathi is referred to as khandani (Khandani is a Marathi word which relates to the long past history where the rulers used to collect Khandani from their subjects). A feeling is prevalent in the city that it is not the State alone which can protect the life and property of the rich and influential, but it is the criminals who render protection to such people for the consideration of the “protection money” received by them”.
3. Such ongoing activities of the underworld are problems faced not only in Mumbai and this country but all over the globe. Generally known abroad as “organised crime”, it has been found to be a subejct to fascination in popular culture and a major criminal justice concern in the western world. Such organised crimes pose various problems to the world community concerned to combat and fight it out”.
However,it can be seen that though gruesome murders were committed
by the accd. who were awarded with death penalty, the Hon'ble S.C.
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by taking into consideration all the attending circumstances converted it
into life. Paragraph 63 of the said judgment can be reproduced for
advantage as under:
63. “We, therefore, hold that the trial court committed a mistake of law in not relying upon the confessional statements of A5 and A6 to ascertain their involvement in the commission of the crime with which they were charged. Confessional statements having been proved to be voluntarily made and legally recorded, which generally stood corroborated, were sufficient to hold that the aforesaid persons were guilty of hatching the conspiracy with A7 to A13 for commission of offence with which they were charged. Setting aside the judgment of the trial court to that extent we convict A5 and A6 for the offences under Sections 302, 307 read with Sections 120B, 23, 114 of the Indian Penal Code, Section 3 read with Section 25(1B)(a), Section 5 r/w Sec. 27 of the Arms Act, Secs. 3, 2(i), 3(2)(ii), 3(3), 3(5), 5 and 6 of the terrorist and Disruptive Activities (Prevention) Act, 1987. We are, however, of the opinion that being misled youth they do not deserve the maximum penalty impossible under law and the case is not the rarest of the rate cases warranting death sentence. Subhash Bind (A5) and Sekhar Kadam (A6) are, therefore, sentenced to life imprisonment for the major offence of murder, punishable under Sec. 302 r/w Sec. 120B IPC. We do not award separate sentences to the aforesaid accused persons for the other offences
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committed by them”.
408. As a matter of fact, in case of Santosh Kumar Satisbhushan
Bariyar vs. State of Maharashtra reported in (2009) 2 SCC (Cri)
1150 and in case of Mohd. Farooq Abdul Gafur and anr. vs. State of
Maharashtra reported in (2010) 14 SCC 641, the Hon'ble Supreme
Court has in detail discussed about the sentencing policy. The relevant
paragraphs in Mohd. Farooq Abdul Gafur and anr. vs. State of
Maharashtra are as follows:
“136. So far as the State appeal as far as Accused 7 is concerned, it is filed only for the purpose of enhancement of his sentence inasmuch as the State by filing the present appeal has questioned the order of the High Court altering the sentence of capital punishment to that of imprisonment for life. However, considering the entire facts and circumstances of the case and the evidence placed on record against him, we find that capital punishment in the instant case would not be justified and, therefore, the appeal of the State so far as the issue with regard to alteration of the sentence of imprisonment of life to that of capital punishment is dismissed”.
“147. Since in one of the appeals relating to a coaccused, life sentence awarded was upheld by this Court without issuing any notice for enhancement of sentence, we find
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no reason to take a different view in the cases of the other accused herein, particularly when in respect of Accused 5 and 6 there was an order of acquittal by one Court. Lastly, the order of conviction and sentence passed by the High Court against Accused 8 is upheld and the sentence of imprisonment of life is maintained on the same ground”.
“170. One of the accused in the instant case was acquitted in December 2003 by the High Court. It has been more than 8 years since he was freed in relation to the matter at hand. At this juncture, this becomes a relevant factor”.
“171. In State of Maharashtra v. Manglya Dhavu Kongil even though the Supreme Court reversed the acquittal by the High Court and restored the original conviction of the trial court, it did not award the sentence of death observing that the death sentence had been awarded over four years previously and in the period in between, the accused had been freed from prison”.
“172. In State of U.P. v. Sughar Singh this Court awarded life imprisonment stating: (SCC p. 194, para 17)
“17. ... having regard to the considerable time that has elapsed since the date of the occurrence and having regard to the fact that the High Court's decision of acquittal in their favour is being set aside by us, the extreme penalty of death ought not to be imposed....”
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“173. Similar reasoning was offered by this Court in State of Haryana v. Sher Singh, State of U.P. v. Hakim Singh, Gurnam Kaur v. Bakshish Singh, State of U.P. v. Sahai and State of U.P. v. Suresh (for a rigorous and comprehensive review of death penalty jurisprudence on this issue and otherwise please see Amnesty International Report titled “Lethal Lottery: The Death Penalty in India___A study of Supreme Court judgments in death penalty cases 19502006”).
Recent decisions:“174. Recently the question as to the imposition of death penalty again came for consideration before this Court in State of Punjab v. Manjit Singh. Therein the two accused had been held responsible for the murder of four persons which included the husband and the son of the women both of them were having an illicit relationship with (sic). The deceased had objected to the said relationship and even physically abused the lady. This is what ultimately incited the accused to murder the deceased persons in cold blood. The trial court sentenced both the accused to a death sentence. The High Court in reference however commuted the sentence to one for life”.
“175. Brother Sharma, J. while deciding the question of sentencing in Manjit Singh case reiterated the law with respect to the imposition of a death penalty, observing: (SCC p. 37, para 20).
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“20. The above discussed legal principles have been followed consistently in numerous judgments of this Court. Whether the case is one of the rarest of rare cases is a question which has to be determined on the facts of each case. It needs to be reiterated that the choice of the death sentence has to be made only in the rarest of rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society and where the crime is committed in an organized manner and is gruesome, coldblooded, heinous and atrocious; where innocent and unarmed persons are attacked and murdered without any provocation”. The Court accordingly affirmed the judgment of the High Court on the ground that the accused had only acted out in the gruesome manner after coming to know of the ill treatment meted out by the deceased persons to the women they had feelings for.
“176. We may also place on the record that in Rameshbhai Chandubhai Rathod v. State of Gujarat two of the Hon'ble Judges of this Court differed on the question of imposition of death penalty”.
“177. In the facts and circumstances of the case, and having regard to the wellsettled principles of law that we have referred to hereinbefore, we are not persuaded, as has rightly been held by Brother Sharma, J., that it is not a case where the only sentence to which the accused persons herein were entitled to was that of death”.
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“178. In our opinion the trial court had wrongly rejected the fact that even though the accused had a criminal history, but there had been no criminal conviction against the said three accused. It had rejected the said argument on the ground that a conviction might not be possible in each and every criminal trial. In our opinion unless a person is proven guilty, he should be presumed innocent. Further, nothing has been brought on behalf of the State even after all these years, that the criminal trials that had been pending against the accused had resulted in their conviction. Unless the same is shown by the documents on records we would presume to the contrary. Presumption of innocence is a human right. The learned trial Judge should also have presumed the same against all the three accused. In our opinion the alleged criminal history of the accused had a major bearing on the imposition of the death sentence by the trial court on the three accused. That is why in our opinion he had erred in this respect”.
“179. It is also to be noted that the trial court has brought on record various irrelevant and invidious considerations with respect to sentencing. The trial court observes that death penalty must be awarded in this case so as to motivate the police not to indulge in encounter killings and catch the accused alive. Role of ISI Agency of Pakistan, black money racketeering in the organised crime syndicate has also been discussed at great length in the sentencing part of the
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judgment. These aspects are not only absolutely irrelevant to sentencing in the instant case but also bears an extremely subjective and loose articulation and delineation of factors relevant to sentencing in the instant case”.
409. In this case, after hearing the respective counsel and the
accused in person and after considering the background, history
particularly of A1 Arun Gawali, I feel that this is not a case falling
under the category of the rarest of rare case in view of the ratio laid
down by the various judgments of the Hon'ble Supreme Court.
Moreover, the offence against A1 Arun Gawali is proved by
circumstantial evidence which attracts the ratio of the Hon'ble Supreme
Court in case of Aloke Nath Dutta and others vs. State of West
Bengal reported in MANU/SC/8774/2006 paragraph 87 of the
judgment reads thus:
87. In the case of Roper v. Simmons 543 U.S. 551(2005) respondent planned and committed a capital murder. After he had turned 18, he was sentenced to death. His direct appeal and subsequent petitions for state and federal post conviction relief were rejected. The court held that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed”.
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410. In Santosh Kumar's case, the victim was tied with a rope
round his neck and pulled it from its both ends. The deceased tried
to struggle, but his movements stopped after some time. His dead
body was dragged to the toilet. A1 Santosh Kumar separated the
head of the deceased with a hacksaw blade and a sickle and kept
the head in a polythene bag. Thereafter, he separated both the
hands of the deceased. The hands too were kept in a polythene
bag. He then asked A2 Sanjeevkumar Roy to cut the legs of the
deceased which he did. Both the accused packed the legs in two
separate bags. They all spent about two hours for cutting the body
of the deceased. They disposed off those bags containing parts of
the body at different placed. In this case also, the Hon'ble Supreme
Court set aside the death penalty and award life sentence. I quote
the relevant paragraphs as follows:
“58. The rarest of rate dictum breathes life in “special reasons” under Section 354(3). In this context, Bachan Singh laid down a fundamental threshold in the following terms: (SCC p. 751, para 209)“209. ... A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality.
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That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed”. An analytical reading of this formulation would reveal it to be an authoritative negative percept. The “rarest of rare cases” is an exceptionally narrow opening provided in the domain of this negative percept. This opening is also qualified by another condition in the form of “when the alternative option is unquestionably foreclosed”.
“59. Thus, in essence, the rarest of rare dictum imposes a wideranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:
1. that the case belongs to the rarest of rare category.
2. and the alternative option of life imprisonment will just not suffice in the facts of the case.
“60. The rarest of rate dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of the interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rate dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum”.
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“61. The background analysis leading to the conclusion that the case belongs to the rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception. A conclusion as to the rarest of rate aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the criminal. It was in this context noted: (Bachan Singh case, SCC p. 738, para 161).“161. ... The expression 'special reasons' in the context of this provision, obviously means 'exceptional reasons' founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal”.
“64. Another aspect of the rarest of rare doctrine which needs serious consideration is interpretation of latter part of the dictum (SCC p. 751, para 209) “that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed (emphasis supplied)”. Bachan Singh suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment' will be futile and serves no purpose”.
“65. Death punishment, as well be discussed in detail a little later, qualitatively stands on a very different footing from other types of punishments. It is unique in its total irrevocability. Incarceration, life or
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otherwise, potentially serves more than one sentencing aims. Deterrence, incapacitation, rehabilitation and retribution – all ends are capable to be furthered in different degrees, by calibrating this punishment in light of the overarching penal policy. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore puts an end to anything to do with the life. This is the big difference between the two punishments. Before imposing death penalty, therefore, it is imperative to consider the same”.
“66. The rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal, along with other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh sets the bar very high by introduction
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of the rarest of rare docttine”.
“67. In Panchhi v. State of U.P. this Court also elucidates on “when the alternative option is foreclosed” benchmark in the following terms: (SCC p. 182, para 16).16. When the Constitution Bench of this Court, by a majority, upheld the constitutional validity of death sentence in Bachan Singh v. State of Punjab this Court took particular care to say that death sentence shall not normally be awarded for the offence of murder and that it must be confined to the rarest of rate cases when the alternative option is foreclosed. In other words, the Constitution Bench did not find death sentence valid in all cases except in the aforesaid freaks wherein the lesser sentence would be, by any account, wholly inadequate. In Machhi Singh v. State of Punjab a threeJudge Bench of this Court while following the ratio in Bachan Singh case laid down certain guidelines among which the following is relevant in the present case: (Machhi Singh case, SCC p. 489, para 38). '(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.'” (emphasis supplied)
“68. In Bachan Singh it was stated (SCC p. 750, paras 20607).“206. Dr. Chitale has suggested these
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mitigating factors:
'Mitigating circumstances. __ In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
(1)That the offence was committed under the influence of extreme mental or emotional disturbance.
(2)The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3)The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4)The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above.
(5)That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6)That the accused acted under the duress or domination of another person.
(7)That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
“80. It is also to be pointed out that public opinion is difficult to fit in the rarest of rare matrix. People's perception of crime is neither an objective circumstance relating to
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crime nor to the criminal. Perception of public is extraneous to conviction as also sentencing, at least in capital sentencing according to the mandate of Bachan Singh”.
“81. The rarest of rate policy and legislative policy on death punishment may not be essentially turned to public opinion. Even if we presume that the general populace favours a liberal death punishment policy, although there is no evidence to this effect, we cannot take note of it. We are governed by the dictum of Bachan Singh according to which life imprisonment is the rule and death punishment is an exception”.
“93. Bachan Singh elaborated on “wellrecognised principles” in the following terms: (SCC p. 748, para 197)
“197. In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on wellrecognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By 'wellrecognised principles' the Court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. (emphasis supplied). The legislative changes since Jagmohan as we have discussed already – do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme
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penalty can be inflicted only (emphasis in original) in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances, of the offence, due regard must be paid to the circumstances of the offender, also”.
“102. In Bishu Prasad Sinha v. State of Assam this Court commuted the death penalty of the accused on the ground that the prosecution case was entirely based on circumstantial evidence”.
“103. In State of Maharashtra v. Prakash Sakha Vasave the accused had brutally attacked with axes the husband of their sister, who was having an illicit relationship with another woman. The trial court had found two of the accused guilty and sentenced them to death. In appeal the High Court acquitted the accused because of lack of evidence. This Court in appeal set aside the judgment of acquittal passed by the High Court but noticed that the case before it did not fall in the rarest of rare category and deserved only life imprisonment”.
411. Since this is not a case falling under the rarest of rare
category, there is no necessity for giving special reasons and, therefore, I
am not agreed with the proposition put forth by the learned SPP that
the criteria of rarest of rare case need not be made applicable to the
special statute, for the reason that the Hon'ble Supreme Court has
considered the said aspect in case of Mohd. Farooq Abdul Gafur vs.
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State of Maharashtra. In the said case, there was a rampant use of
weapons like AK 56 rifle, 9 mm pistol etc. by the assailants which had
resulted in death of some of the victims. I humbly feel that this is not a
case where A1 Arun Gawali, A2 Vijay Giri and A12 Pratap Godse
deserve death penalty.
Now, to the order:
O R D E R
1. A1 Arun Gulab Gawali, A9 Sandip alias Sandy Baliram
Gangan, A10 Shrikrishna alias Babu Tukaram Gurav, A12 Pratap
Tukaram Godse, A13 Ajit Chandrakant Rane, A15 Suresh Raghunath
Patil and A20 Sunil Sadashiv Ghate are convicted u/s. 235(2) of the
Code of Criminal Procedure of the offence punishable u/s. 3(4) of the
MCOC Act, 1999.
Each of the accused is sentenced to undergo rigorous
imprisonment for ten years and shall pay a fine of Rs.5 lakhs each.
In default of payment of fine, each shall undergo rigorous
imprisonment for three years.
2. A1 Arun Gawali, A9 Sandip Gangan, A10 Shrikrishna
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Gurav, A12 Pratap Godse, A13 Ajit Rane, A15 Suresh Patil and A20
Sunil Ghate are convicted u/s. 235(2) of the Cr.P.C. of the offence
punishable u/s. 3(1)(ii) of the MCOC Act, 1999.
Each of the accused is sentenced to undergo RI for ten years
and shall pay a fine of Rs.5 lakhs each.
In default of payment of fine, each shall undergo rigorous
imprisonment for three years.
3. A2 Vijaykumar Harihar Giri, A3 Ashokkumar Shivakant
Jaiswar, A4 Narendra alias Kandi Lalmani Giri and A5 Anil
Shebahadur Giri are convicted u/s. 235(2) of the Cr.P.C. of the offence
punishable u/s. 3(2) of MCOC Act, 1999.
Each of the accused is sentenced to undergo RI for life and
shall pay a fine of Rs. 5 lakhs each.
In default of payment of fine, each shall undergo RI for
three years.
4. A2 Vijay Giri, A3 Ashokkumar Jaiswar and A4 Narendra
Giri are convicted u/s. 235(2) of the Cr.P.C. of the offence punishable
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u/s. 452 r/w 34 of IPC.
Each of the accused is sentenced to undergo RI for seven
years and shall pay a fine of Rs.5,000/ each.
In default of payment of fine, each shall undergo RI for one
year.
5. A2 Vijay Giri, A3 Ashokkumar Jaiswar, A4 Narendra Giri
and A5 Anil Giri are convicted u/s. 235(2) of Cr.P.C. of the offences
punishable u/s. 302 r/w 34 r/w 120B of the IPC r/w Sec. 3(1)(i) of the
MCOC Act, 1999.
Each of the accused is sentenced to undergo RI for life and
shall pay a fine of Rs.1 lakh each.
In default of payment of fine, each shall undergo RI for
three years.
6. A1 Arun Gawali, A6 Sahebrao Bhintade, A9 Sandip
Gangan, A10 Shrikrishna Gurav, A12 Pratap Godse, A13 Ajit Rane
and A15 Suresh Patil are convicted u/s. 235(2) of the Cr.P.C. of the
offence punishable u/s. 3(2) of the MCOC Act, 1999.
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Each of the accused is sentenced to undergo RI for life and
shall pay a fine of Rs.7 lakhs each.
In default of payment of fine, each shall undergo RI for
three years.
7. A1 Arun Gawali, A6 Sahebrao Bhintade, A9 Sandip
Gangan, A10 Shrikrishna Gurav, A12 Pratap Godse, A13 Ajit Rane
and A15 Suresh Patil are convicted u/s. 235(2) of the Cr.P.C. of the
offence punishable u/s. 3(1)(i) of the MCOC Act, 1999.
Each of the accused is sentenced to undergo RI for life and
shall pay a fine of Rs.1 lakh each.
In default of payment of fine, each shall undergo RI for
three years.
8. A2 Vijay Giri is convicted of the offence punishable u/s. 3
r/w 25(1B) of the Arms Act, 1959. He is sentenced to undergo RI for
three years and shall pay a fine of Rs.5,000/.
In default of payment of fine, he shall undergo RI for six
months.
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9. A8 Surendra Vasudeo Panchal, A10 Shrikrishna Gurav,
A11 Dinesh alias Dinya Laxman Narkar and A12 Pratap Godse are
acquitted of the offence punishable u/s. 3 r/w Sec. 25 (1B) of the Arms
Act.
10. A8 Surendra Panchal, A11 Dinesh Narkar and A21 Ganesh
Krishna Salvi are acquitted of the offences punishable u/s. 3(2), of the
MCOC Act, 1999 and u/s. 3 r/w 25(1B) of Arms Act and Sec. 120B of
IPC.
A11 Dinesh Narkar be set at liberty, if not required in any
other case.
11. A5 Anil Giri and A20 Sunil Ghate shall surrender to their
bail bonds.
12. The bail bonds of A8 Surendra Panchal and A21 Ganesh
Salvi shall stand cancelled. However, each of them and A11 Dinesh
Narkar shall furnish a fresh bail in the sum of Rs.25,000/ each with
one surety in the like amount in view of Sec. 437A of Cr.P.C., within a
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week from today.
13. 40% of the fine amount be paid to the widow of the
deceased Komal Jamsandekar from the total fine amount, if recovered
from the accused in view of Sec. 357(1)(b) of Cr.P.C., subject to the
decision of appeal.
14. The substantive sentences shall run concurrently.
15. A set off be given to A20 Sunil Ghate in view of Sec. 428 of
Cr.P.C. for the period of detention undergone by him during
investigation and trial.
16. A copy of findings and sentence be forwarded to the District
Magistrate in view of Sec. 365 of the Cr.P.C.
17. A copy of judgment be given to each of the convicted
accused.
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18. The muddemal property/articles be disposed off as follows:
The following muddemal which came to be seized in S.C. No. 482/2008
has been produced in the present case.
Art. no.1A wrapper of Art. no.1 wooden piece, Art. no.2A
(colly.) brown envelopes, Art. no.5 firearm (shot gun without scar butt),
Art. no.9 (colly.) one packet containing an empty cartridge of 12 bore
and its pellets (marked in SC No. 482/2008 as Art. no.6 & Art. no.7),
Art. no.10 (colly.) three knives (already marked in MCOC Spl. Case No.
7/08 @ 16/08 & 3/09), Art. no.11 red coloured empty (Part of Art. 9
colly.), Art. no.11A Plastic wrapper, Art. no.12, Mobile (marked as Art. 2
in SC No. 482/08), Art. no.12A wrapper (marked as Art. in SC No.
482/08), Art. no.13 cellphone (marked as Art. 4 in SC No. 482/08),Art.
no.13A wrapper, Art. no.14 two currency notes of Rs.20/ each, Art. no.
14A wrapper, Art. no.15(colly). motor driving licence, Rs.70/ (one
note of Rs.50 and two notes of Rs.20 each), Art. no.15A wrapper, Art.
no.16 Red colour bag (Art. no.12 colly. in S.C. No. 482/08), Art. no.16
A wrapper of red colour bag, Art. no.17 (colly.) wallet along with other
articles (already marked as Art. no.12 colly. in S.C. No. 482/08), Art.
no.18 the sealed wrapper of the key (returned to IO), Art. no.18A
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wrapper, Art. no.19 sutal, Art. no.20 chilly powder, Art. no.21 (colly.)
wallet along with Misc. papers, Rs.30 (Art. 11 colly. in SC No. 482/08)
and Art. 21A wrapper.
The aforesaid muddemal property be kept back in S.C. No.
482/2008 and shall not be disposed off for one year after the disposal
of the said case. If in the mean while, intimation of an appeal having
been filed in the Hon'ble High Court, in the present matter is received,
the said muddemal shall not be disposed off until a period of one year
expires from the date of the decision of appeal to the Hon'ble High
Court (Chapter VI paragraph 73 (1)(d) of Criminal Manual).
19. Muddemal property seized in MCOC Special Case No.
7/2008 @ 16/2008 @ 3/2009 @ S.C. No. 529/2007 be disposed off as
follows:
Art. no.1 wooden piece (Scar butt), being a part of a country
made handgun Art. no.5, Art. no. 7 (colly.) Air cushion and 71 pellets,
Art. no.8 container, be confiscated to the State in view of Sec. 32 of the
Arms Act subject to the decision of appeal. Art. no. 2 (colly.) two
mobile phones (Nokia company), Art. no. 3 (colly.) 11 small diaries, 1
register/account book, 9 documents in the nature of affidavits, 1
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telephone diary @ some pinned loose sheets, Art. no.4 bag suitcase
Vibsol and Art. no. 6 wrapper, Art. no. 22 (colly.) three identity cards
and one mobile phone of Nokia company be returned to the persons
from whom these articles have been seized.
20. The white Santro Car bearing registration No. MH01AM
3482 be delivered to A15 Suresh Patil on his executing a bond in the
sum of Rs.2 lakhs and shall restore the said property to the Court, if this
order is modified or set aside in appeal.
21. The effect of the order as regards the disposal of muddemal
property shall take place in view of Chapter VI Paragraph 73 (1)(d) of
the Criminal Manual.
22. The original station diaries as shown hereinbelow be
returned to the concerned police stations after retaining legible true
copies of the relevant exhibited portions in the case.
Exhibit No. Description
276,277 & 278 Original Station Diary of Sakinaka PS
449 Original Station Diary of Chembur PS
450 Original Station Diary of Gaodevi PS
451 Original Station Diary of LT Marg PS
452 Original Station Diary of Mahim PS
453 Original Station Diary of Yellowgate PS
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454 Original Station Diary of Colaba PS
455 Original Station Diary of Bandra PS
31st August, 2012. (PRITHVIRAJ K. CHAVAN) Special Judge.
Dictated on: 17.7.12,19.7.12,21.7.12,23.7.12,24.7.12,27.7.12,30.7.12,1.8.12,2.8.12,3.8.12,6.8.12,7.8.12,8.8.12,9.8.12,10.8.12,13.8.12,16.8.12,17.8.12,22.8.12,30.8.& 31.8.12.Transcription completed on: 01.09.2012.Signed on:C.C. issued on:
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