TaxTMI 
TaxTMI 
2009 (8) TMI 1305
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....efore us by the State of Maharashtra that the case at hand falls within the category of the 'rarest of rare'. It was submitted that in the facts and circumstances of the case only a death sentence would meet the requirements of justice. Contention of the State that what brought this case within the special category of the 'rarest of rare cases' was the fact that the incident in question was not a stray crime of murder but was in fact an extremely sophisticated and organised crime whose strings had been attached to outside the country. Accordingly the incident which resulted in the death of three persons and caused grievous injury to seven, was an assault on civilised society. 4. The State of Maharashtra has further relied on the long criminal history of all the three accused namely, Accused 5, M Zuber Kasam Shaikh, Accused 6, Fazal Mohd. Shaikh and Accused 7, Azzizuddin Zahiruddin Shaikh to show that they were hardened and seasoned criminals. It is emphasized that Accused 7, Azzizuddin Zahiruddin Shaikh had received training from the ISI in Pakistan, likewise both Accused 5, M Zuber Kasam Shaikh and Accused 6, Fazal Mohd. Shaikh were contract killers who were wor....
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.... be noted that administration of Death Penalty is carried out in the intensive gaze of Article 14 and Article 21 requirements. Bariyar (supra) aptly captures the sentiment in this regard: We are also governed by the Constitution of India. Article 14 and 21 are constitutional safeguards and define the framework for state in its functions, including penal functions. They introduce values of institutional propriety, in terms of fairness, reasonableness and equal treatment challenge with respect to procedure to be invoked by the state in its dealings with people in various capacities, including as a convict. The position is, if the state is precariously placed to administer a policy within the confines of Article 21 and 14, it should be applied most sparingly. This view flows from Bachan Singh (supra) and it this light, we are afraid that Constitution does not permit us to take a re-look on the capital punishment policy and meet society's cry for justice through this instrument. 7. It is universally acknowledged that judicial discretion is subjective in nature and left to itself has potential to become erratic and personality based which makes it antithetical to the spi....
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....but as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of 'rarest of rare' cases. 10. Objective fairness standards as engrained under Bachan Singh (supra) will include opportunity of review of capital sentence, timely trial, and comparative review. In Bariyar (supra), this Court held: The aggravating and mitigating circumstances have to be separately identified under a rigorous measure. Bachan Singh (supra), when mandates principled precedent based, sentencing, compels careful scrutiny of mitigating circumstances and aggravating circumstances and then factoring in a process by which aggravating and mitigating circumstances appearing from the pool of comparable cases can be compared. The weight which is accorded by the court to particular aggravating and mitigating circumstances may vary from case to case in the name of individualized sentencing, but at the same time reasons for apportionment of weights shall be forthcoming. Such a comparison may point out excessiveness as also will help repel arbitrariness objections in future. A sen....
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....n under the weight of disparate interpretations. 13. This is only a rule of prudence and as such there is no statutory provision to this effect. Minority opinion of Justice Thomas in Suthendraraja alias Suthenthira Raja alias Santhan and Ors. v. State AIR 1999 SC 3700 very aptly capture this point of view: 17. The Constitution Bench in Bachan Singh v. State of Punjab has narrowed down the scope for awarding death sentence to the extremely restricted radius of "rarest of rare cases" in which the alternative lesser sentence of imprisonment for life is unquestionably foreclosed. In the main judgment in the present case one of the three Judges found that sentence of imprisonment for life would be sufficient to meet the ends of justice as far A-1 Nalini. 18. In a case where a Bench of three Judges delivered judgment in which the opinion of at least one Judge is in favour of preferring imprisonment for life to death penalty as for any particular accused, I think it would be a proper premise for the Bench to review the order of sentence of death in respect of that accused. Such an approach is consistent with Article 21 of the Constitution as it helps saving a human li....
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.... N.C.T. of Delhi and Anr. (with Krishna Mochi) AIR 2003 SC 886 and State of U.P. v. Satish AIR 2005 SC 1000. 17. It is only apt to mention here that the Law Commission in its 187th Report has recommended that in cases where the Supreme Court Bench hearing a particular case finds that an acquittal by a High Court should be overturned and the accused be sentenced to death, or where it finds that the punishment should be enhanced from life imprisonment to death, such cases should be transferred by the Chief Justice to a Bench of at least five judges. "SWINGING FORTUNES" 18. Swinging fortunes of the accused on the issue of determination of guilt and sentence at the hand of criminal justice system is something which is perplexing for us when we speak of fair trial. The situation is accentuated due to the inherent imperfections of the system in terms of delays, mounting cost of litigation in High Courts and apex court, legal aid and access to courts and inarticulate information on socio-economic and criminological context of crimes. In such a context, some of the leading commentators on death penalty hold the view that it is invariably the marginalized and destitute who suffer t....
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....tencing reiterated the law with respect to the imposition of a death penalty, observing: 17. The above discussed legal principles have been followed consistently in numerous judgments of this Court. Whether the case is one of the rarest of the 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 the 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, cold-blooded, heinous and atrocious; where innocent and unarmed persons are attacked and murdered without any provocation. 22. 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. 23. We may also place on record that in Rameshbhai Chandubhai Rathod v. State of Gujarat 2009 (6) SCALE 469, two of the Hon'ble Judges of this Court ....
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....s. While imposing the sentence of life on the accused the Court must have the judgment of acquittal of the High Court in the back of its mind. In our considered opinion if at least one of the courts below had acquitted the accused person in respect of the crimes for which they are to be sentenced, the burden on the prosecution would be even more heavier, which the State in our opinion has not been able to discharge. 30. If a person is sentenced to imprisonment, even if it be for life, and subsequently it is found that he was innocent and was wrongly convicted, he can be set free. Of course, the imprisonment that he has suffered till then cannot be undone and the time he has spent in the prison cannot be given back. Such a reversal is not possible where a person has been wrongly convicted and sentenced to death. The execution of the sentence of death in such cases makes miscarriage of justice irrevocable. It is a finality which cannot be corrected. 31. And once Accused 5, M Zuber Kasam Shaikh and Accused 6 Fazat Mohd. Shaikh have been sentenced to life there remains no question of awarding a death sentence to Accused 7, Azzizuddin Zahiruddin Shaikh who had played no greater a ....
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....ber (Accused No. 5) and Fazal Mohd. (Accused No. 6) were sitting on the rear side of the said car and were armed with 9 mm pistol. All the aforementioned three persons were said to have fired at Milind Vaidya and his associates indiscriminately, who were sitting in the shed. 37. Body guard Dinanath Pawar, who examined himself as PW-2, is said to have fired three rounds from his pistol on the Maruti Car. Other body guard namely Sandeep Waghmare (PW-3), is said to have chased the car upto some distance but did not fire any shot, although armed with a carbine. The incident of firing lasted for a few seconds whereafter the Maruti car sped away. Milind Vaidya sustained bullet injuries. Besides six others, namely - Nishchal Krisrpa Chaiidhari; Vinay Narayan Akare; Babu Kashinath Mangela; Niteen Narayan Mehar; Murugan V Tewar; and Vijay Kashinath Akare also sustained bullet injuries. Three of his associates, namely - Milind Gunaji Chaudhari, Vilas Gopinath Akare and Deepak Sitaram Akare succumbed to their injuries. 38. All the aforesaid victims were immediately rushed to Hinduja Hospital, Mumbai where they were admitted for examination and treatment. Post mortem examinations of the ....
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....were eight accused persons namely, Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No. 1), Aslam Mohammed Kutti (Accused No. 2), Abdul Kadar Abdul Gafoor Rizvi (Accused No. 3), Mansoor Hasan Haji Iqbal Pankar (Accused No. 4), Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu (Accused No. 5), Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar (Accused No. 6), Azzizuddin Zahiruddin Shaikh alias Abdul Sattar (Accused No. 7) and Abdul Hasan Bande Hasan Mistri (Accused No. 8) involved in the case. 43. Accused No. 1 (Appellant No. 1 herein) was arrested on 13th March, 1999 whereas Accused No. 4 (Appellant No. 2 herein) was arrested on 21st June, 1999 along with Accused Nos. 2 and 3. Accused Nos. 5 and 6 were arrested on 18th June, 1999 by the Special Cell of Delhi Police. Accused No. 7 was arrested on 15th June, 1999 with AK-56 rifle by Hazariganj Police Station, Lucknow, U.P. and Accused No. 8 was arrested on 21st July, 1999. 44. On 4th April, 1999 the Appellant No. 1 took police and panchas to certain places and STD booths on Mohd. Ali Road, Masjid Road, near J. J. Marg Police Station at Dongri wherefrom he used to contact Faheem. Appellant No. 1 made a confessional statement on....
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....f organized crime syndicate of Chhota Shakeel, the provisions of Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as 'MCOCA') were also invoked. All the aforesaid accused persons were charged for conspiring, abetting and facilitating commission of the aforesaid crime as members of the said organized crime syndicate. 50. In the charge sheet Chhota Shakeel and Mohd. Faheem have been shown as the absconding accused. The prosecution case proceeded on the premise that all the accused had hatched a conspiracy to eliminate Milind Vaidya and with that common object in mind they aided each other for causing his murder. They were said to be in constant touch with Mohd. Faheem for the purpose of taking instructions from him on telephone. They had been provided with arms and ammunitions and money by the absconding accused persons namely, Chhota Shakeel and Mohd. Faheem. 51. Appellants herein are said to be belonging to the gang of fugitive criminal namely Chhota Shakeel who allegedly operates his organised crime activities from Karachi, Pakistan. He is also aided by another ganglord namely, Mohd. Faheem. Both of them are said to belong to the gang of unde....
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.... 109 of IPC for delivering weapons to accused Nos. 4 and 7 which were later used in the commission of the aforesaid offence thus, facilitated commission of offence as a member of conspiracy and in furtherance of common intention. He was further charged under Sections 302, 307 r/w 34, 120B, and 109 of IPC for purchasing three mobile phones along with Accused No. 2 from Hira Panna Market to facilitate the aforesaid crime. 56. Mansoor Hasan Haji Iqbal Pankar (Accused No. 4) was charged under Sections 411 r/w 34 and 120B of IPC for conspiring, as per the directions of Faheem, in collecting white coloured Maruti 800 Car from Phila House, Mumbai and the aforesaid stolen car was used by accused Nos. 4 and 7 and thus was a member of conspiracy and committed offence of dishonestly receiving stolen property. He was further charged under Sections 302, 307 r/w 34, 120B, and 109 of IPC for handing over the stolen car to Accused No. 8 which was actually used in the aforesaid offence. He was further charged under Section 201 r/w 34 and 120B of IPC for taking over charge of two mobile phones from accused Nos. 5 and 7 after the aforesaid offence and for concealing the same in his house. 57. M....
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.... offence with the intention of screening them. 60. In support of its case the prosecution examined 64 witnesses out of them 5 were eye witnesses including the injured persons. Six STD/ISD booth owners were also examined to prove that some of the accused had made telephone calls from their booths to Karachi, Pakistan. 4 witnesses were examined to depose about subsidiary circumstances. 14 witnesses were panch witnesses. 4 medical officers were examined to prove the post-mortem reports as well as the certificates of injuries. 25 Police Officers including two investigating officers were also examined. 5 other witnesses were examined on different points. A large number of documents were produced by the prosecution. 61. Sabiul Hasan (PW-15) was the owner of the Maruti car bearing registration No. MH-03-H-1759 which was stolen. He had lodged a complaint to that effect on 30th January, 1999. The evidence of PW-20, who is a panch witness, established recovery of the car on 25th June, 1999. Accused No. 4 led police to a garage situated opposite to Chhagan Mitha Petrol Pump where the car was given for repair. Manager of. petrol pump PW-17 stated that on 5th February, 1999 Accused No. 4 ....
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....an offence punishable under Section 3(4) of M.C.O.C. Act 99 read with Section 120B I.P.C. and is sentenced to R.I. for ten years and shall pay fine in sum of Rs. 5 lakhs. In default of payment of which he shall undergo R.I. for three years. (c) The Accused No. 4 is also found guilty and convicted of an offence punishable under Section 411 read with Section 120B I.P.C. and is sentenced to suffer R.I. for two years and shall pay a fine in sum of Rs. 5000/-. In default of payment of fine he shall undergo R.I. for six months. V. (a) The Accused No. 5 Mohd. Zuber Kasam Shaikh is found guilty and convicted for an offence punishable under Section 302 I.P.C. read with Section 3(1)(i) of M.C.O.C. Act 99 read further with Section 120B further read with Section 34 I.P.C. for causing murder of: (i) Shri Milind Gunaji Chaudhary, aged 34 years. (ii) Shri Vilas Gopinath Akre, aged 28 years (iii) Shri Deepak Sitaram Akre, aged 30 years And is hereby sentenced to death. He shall be hanged by neck till he dies. (b) (i) The Accused No. 5 is also found guilty and is convicted for an offence punishable under Section 27(3) read with Section ....
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....Act 99 read with Section 120B I.P.C. and is sentenced to suffer R.I. for life and also pay fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo R.I. for three years. VI. The Accused No. 6 Fazal Mohd. Shaikh @ Manni Argamutu Shetiyar is found guilty and- (a) Convicted for an offence punishable under Section 302 I.P.C. read with Section 3(1)(i) of M.C.O.C. Act 99 read with Section 34 and Section 120B I.P.C. for causing murder of- (i) Shri Milind Gunaji Chaudhari, aged 34 years (ii) Shri Vilas Gopinath Akre, aged 28 years (iii) Shri Deepak Sitaram Akre, aged 30 years. And is hereby sentenced to death. He shall be hanged by neck till he dies. (b) (i) Convicted for an offence punishable under Section 27(3) read with Section 7 of The Arms Act 1959 read with Section 120B I.P.C. and is hereby sentenced to death. He shall be hanged by neck till he dies. (iii) also convicted for an offence punishable under Section 25(1A) of The Arms Act and is sentenced to R.I. for ten years and payment of fine in the sum of Rs. 5000/-, and in default of payment of fine to undergo further R.I. for one year. ....
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.... read with Section 7 of The Arms Act, 1959 and is hereby sentenced to death. He shall be hanged by neck till he dies. (ii) Also convicted under Section 25(1A) of The Arms Act for possession of AK-56 rifle prohibited arms and is sentenced to suffer R.I. for ten years and payment of fine in the sum of Rs. 5,000/- and in default of payment of fine to undergo R.I. for one year. (c) Convicted of an offence punishable under Section 307 I.P.C. read with Section 3(i)(ii) of M.C.O.C. Act 99 further read with Section 34 and 120B I.P.C. for attempted murder of Ex-Mayor and sitting Corporator of Bombay Municipal Corporation Shri Milind Dattaram Vaidya, aged 35 years and is sentenced to undergo R.I. for life and payment of fine in the sum of Rs. 5 lakhs and in default of payment of fine to undergo R.I. for three years. (d) Convicted for an offence punishable under Section 326 read with Section 120B I.P.C. further read with Section 3(i)(ii) of M.C.O.C. Act 99 for causing grievous hurt to- (i) Shri Nischal Krishan Choudhari, aged 27 years (ii) Shri Vinay Narayan Akre, aged 31 years. and is sentenced to suffer R.I. for ten years and pa....
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...., Aged 40 years, (ii)Shri Niteen Narayan, aged 43 years (iii) Shri Murguan V. Tewar, aged 26 years. and is sentenced to R.I. for five years and fine in the sum of Rs. 5 lakhs and in default of payment of fine to suffer R.I. for six months (e) Convicted for an offence punishable under Section 201 I.P.C. read with Section 120B I.P.C. and is sentenced to R.I. for five years and shall pay fine in the sum of Rs. 5,000/- and in default of payment of fine to undergo further R.I. for six months. (f) Convicted for an offence punishable under Section 424 IPC and is sentenced to R.I. for two years. (g) Convicted for an offence punishable under Section 414 I.P.C. and is sentenced to suffer R.I. for three years. As regards fine, the Special Judge directed: Thirty percent of the amount of total fine if recovered shall be paid towards compensation payable under Section 357 Cr. P.C. to family members of three victims in 1/3 share for each victim who were died. This is without prejudice to their rights to recover compensation independently at civil Law. Twenty percent of the amount of total fine if recovered be paid as compe....
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..... Conviction and sentence of Accused No. 8 was also maintained. 65. Aggrieved by the aforesaid judgment and order dated 17.12.2003 passed by the High Court of Bombay Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No. 1), Mansoor Hasan Haji Iqbal Pankar (Accused No. 4) and Abdul Hasan Bande Hasan Mistri (Accused No. 8) have filed Criminal Appeal No. 85 of 2006, Criminal Appeal No. 86 of 2006 and Criminal Appeal No. 87 of 2006 respectively. Azzizuddin Zahiruddin Shaikh alias Abdul Sattar (Accused No. 7) had preferred a special leave petition being SLP (Crl.) No. 1469 of 2004 which stood dismissed on 8th April, 2004. 66. The State of Maharashtra has also filed Criminal Appeal Nos. 91-94 of 2006 against the acquittal of Accused No. 1 of the charges under Section 212 read with Section 52A and Section 120B IPC; acquittal of accused Nos. 5 and 6 of all the offences and substitution of sentence from death to life of Accused No. 7 by the High Court. 67. Accused Nos. 5 and 6 were not being represented before us. We, therefore, requested Dr. Rajeev B. Masodkar, Advocate, to represent them as amicus curiae. It is necessary to place on record that two of the aforesaid accused have ....
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.... persons. 71. Another submission which was very forcefully placed before us was that the confessional statements cannot be the basis of conviction in the present cases as the said confessional statements which were proved in the instant case did not contain the mandatory certificate as mentioned under Rule 15 of Maharashtra Control of Organized Crime Rules, 1999 (for short 'the MCOC Rules'). Rule 15 of the MCOC Rules requires a certificate to be attached with the confessional statement but the same apparently is not a part of the record in the instant case thereby rendering the confessional statement as invalid. The mandatory certificate contained the warning which are admittedly not proved in the trial and the same having been not proved, all the confessional statements lost its sanctity and, therefore, could not have been the basis of any conviction. 72. It was submitted that the basic ingredients for a conviction under MCOCA were not made out in any of the cases. It was further submitted that there are a number of major and vital contradictions in the evidence of the witnesses produced on behalf of the prosecution in support of its case. It was pointed out that the....
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....ere recorded in accordance with the required formalities and after giving proper warning to the accused person which fact is proved by the police officer recording such statements and also by the stenographers who recorded the said statements. It was further submitted that there could be some minor irregularities while recording the aforesaid statements but the same would not in any manner vitiate the trial. Besides, reference was made by the counsel appearing for the Government of Maharashtra to Section 15 of MCOCA and placing reliance on the same he submitted that the said section contained a non-obstante clause and, therefore, it cannot be held that the confessional statements were not recorded in accordance with law. 76. Learned Counsel appearing for the State pointed out that the submissions of the learned Counsel appearing for the appellants that the sanction order is vitiated is not borne out from the record as the sanction order passed by the competent authority was a detailed order and not a mechanical order as sought to be suggested by the accused persons. He submitted that the weapons used by the various accused is proved and established by the prosecution witnesses a....
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....59 reads as follows: Section 3 - 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 firearms 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. [(2) Notwithstanding anything contained in Sub-section (1), no person, other than a person referred to in Sub-section (3), shall acquire, have in his possession or carry at any time, more than three firearms: Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station, or subject to the conditions prescribed for the purposes of Sub-section....
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.... or Sub-clause (iii) of Clause (a) of Sub-section (iii) of Clause (a) of Sub-section (1) of Section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; (e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of Clause (b) of Sub-section (1) of Section 9; or (f) brings into, or take out of, India, any arm or ammunition in contravention of Section 10; or (g) transports any arms or ammunition in contravention of Section 12; or (h) fails to deposit arms or ammunition as required by Sub-section (2) of Section 3, or Sub-section (1) of Section 21; (i)being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under Section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account of the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured....
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....ta Shakeel, that he was in touch with the gang leaders in Karachi (Pakistan) and he also acted on behalf of the said gang so much so that he had effected payment of money arranged by the leaders of the gang to Accused Nos. 5, 6, and 8 for causing the shootout. It was submitted by the Public Prosecutor appearing for the State of Maharashtra that Accused No. 1 paid Rs. 25,000/- to Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu (Accused No. 5) on 06.03.1999 and Rs. 10,000/- to Abdul Hasan Bande Hasan Mistri (Accused No. 8). He pointed out that the allegation is that Accused No. 1 had paid a similar amount even to Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar (Accused No. 6). 81. The evidence that is placed before us clearly establishes that Accused No. 1 was responsible for procuring a pistol and handing over the same to Accused No. 5 which was used in the shootout. The said fact is also established and proved by the confessional statement of Accused No. 5. Whether or not the said confessional statement could be used against a co-accused is a different matter which we will discuss at an appropriate stage. 82. Evidence is also available to prove and establish the fact that ....
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....g below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same. (4) Every confession recorded under Sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special court which may take cognizance of the offence. (5) The person whom a confession had been recorded under Sub-section (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Sub-section (4) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay. (6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in ....
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....ooths. The said fact is also accepted by the trial court as well as by the High Court. We find no plausible reason as to why this Court should take a different view than what is taken by the trial court and the High Court on proper appreciation of the evidence on record. 86. The confessional statement of Accused No. 8 was held to be admissible by both the courts below in which he had categorically stated that he knew Accused No. 1 from childhood and that Accused No. 1 had brought him to act as a driver in the said shootout and also paid him Rs. 10,000/- for the job. Accused No. 8 in his confessional statement had also stated that Accused No. 5 visited Accused No. 1. 87. The confessional statements of Accused Nos. 5 and 6 are also relevant to prove and establish the involvement of Accused No. 1 with the incident. In the said confessional statement, Accused No. 5 had stated that on 02.03.1999, Faheem informed Accused No. 5 on the phone that he would be sending two pistols with Accused No. 1. In fact, Accused No. 1 came to the house of Accused No. 5 to deliver the said pistols. It has also come out in the said confessional statement that out of the two pistols one was not in ord....
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.... We also hold that the aforesaid confessional statement of the co-accused could be the basis of conviction under the provisions of MCOCA. 91. We, therefore, hold Accused No. 1 guilty of all the charges which were already found to be proved and established by the trial court and affirmed by the High Court. So far the sentence is concerned we, however, uphold and confirm the sentence passed by the High Court and also restore the punishment awarded by the trial court under Section 212 read with Section 52A read with Section 120B IPC. 92. So far as conviction under MCOCA is concerned, it is quite clear that conviction could be based solely on the basis of the confessional statement itself and such conviction is also permissible on the basis of the confessional statement of the co-accused 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 co-accused is admissible as a piece of substantive evidence and in view ....
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....hey should be tried together. That is also Section 30 of the Evidence Act. Clauses (c) and (d) of Section 21 were deleted which raised a presumption of guilt against the co-accused. According to Mr. Natarajan, that provision made the confession of a co-accused a substantive evidence and Parliament did not think it proper that it should be so. But then why add the words in Section 15? 419. "Admissible" according to Black's Law Dictionary means: Pertinent and proper to be considered in reaching a decision. Used with reference to the issues to be decided in any judicial proceeding. 420. It defines "admissible evidence" as: As applied to evidence, the term means that the evidence introduced is of such a character that the court or judge is bound to receive it; that is, allow it to be introduced at trial. To be 'admissible' evidence must be relevant, and, inter alia, to be 'relevant' it must tend to establish material proposition.... If we again refer to Black's Law Dictionary "substantive evidence", means: That adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of....
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....n most of the High Courts in India, namely that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct. 422. In Kashmira Singh v. State of M.P.9 one of the questions was how far and in what way the confession of an accused person can be used against a co-accused. The Court relied on the observations made by the Privy Council in Bhuboni Sahu case 8 and said that testimony of an accomplice can in law be used to corroborate another though it ought not to be used save in exceptional circumstances and for reasons disclosed. 423. In Haricharan Kurmi v. State of Bihar010 this Court again relied on its earlier decision in Kashmira Singh case9 and on the decision of the Privy Council in Bhuboni Sahu case8. It said that technically construed, definition of evidence as contained in Section 3 of the Evidence Act will not apply to confession. Even so, Section 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused person; that is to say, though such a confession may not be evidence as strictly defined by Section 3 of the Act, it is....
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....ty it was held that as a matter of prudence the court may look for some corroboration if confession is to be used against a co-accused though that will be again within the sphere of appraisal of evidence. It is relevant to note that in Nalini case7 the Court was considering the permissibility of conviction of a co-accused on the confessional statement made by another accused. In this case, we are concerned with the question as to whether the accused making the confessional statement can be convicted on the basis of that alone without any corroboration. The following observations in Jayawant Dattatray case6 are relevant: (SCC p. 146, para 60) 60. 2. Confessional statement before the police officer under Section 15 of the TADA is substantive evidence and it can be relied upon in the trial of such person or co-accused, abettor or conspirator for an offence punishable under the Act or the Rules. The police officer before recording the confession has to observe the requirement of Sub-section (2) of Section 15. Irregularities here and there would not make such confessional statement inadmissible in evidence. If the legislature in its wisdom has provided after considering the sit....
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.... nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts of a particular case. The degree of corroboration so required is that which is necessary for a prudent man to believe in the existence of facts mentioned in the confessional statement. (v) The requirement of Sub-rule (5) of Rule 15 of the TADA Rules which contemplates a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who, in turn, will have to send the same to the Designated Court is not mandatory and is only directory. However, the court considering the case of direct transmission of the confessional statement to the Designated Court should satisfy itself on facts of each case whether such direct transmission of the confessional statement in the facts of the case creates any doubt as to the genuineness of the said confessional statement. 95. Reverting back to the factual position of the present case, so far as Aslam Mohammed Kutti (Accused No. 2) and Abdul Kadar Abdul Gafoor Rizvi (Accused No. 3) are concerned, they have been acquitted by the trial court as against which no appeal was fil....
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....he Maruti car which was used for the shootout on the instructions of Mohd. Faheem, that he was present during the handing over of AK-56 and pistol to Accused No. 7 on the morning of the incident and he was privy to the conversations between Chhota Shakeel, Mohd. Faheem and Accused No. 7 on the day of the shootout and that he was an active member of the gang of Chhota Shakeel who actively participated in the activities of the organized crime syndicate which fact is corroborated by his confessional statement. 99. So far as confessional statement of Accused No. 4 is concerned, we find the same to be trustworthy and reliable. It is evidently clear from the records that the confessional statement of Accused No. 4 was recorded on 30.07.1999 by Ravindra Kadam (PW-39) who was DCP (Zone-IV) which was produced before CMM in a sealed envelop. The aforesaid confessional statement was found to be in substantial compliance with the requirements of Section 18 of MCOCA. The High Court came to the categorical finding that post confessional formalities have been followed and although the confessional statement does not bear a certificate in the identical terms as specified under Rule 3(6) of the ....
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....adly weapons by Accused No. 3 to Accused No. 7 and that he was present when Accused No. 7 was talking to Chhota Shakeel on 04.03.1999. therefore, it is clear that Accused No. 4 had heard the conversation prior to the shootout and thus had the knowledge about the conspiracy. 103. PW-18, cousin of Milind Vaidya, who was an eye-witness to the incident described in detail what he saw on the day of the incident. He deposed that he had seen Accused No. 4 along with Accused Nos. 5, 6 and 7. Later he identified him during TIP. Apart from him, Accused No. 4 was also identified by PW-2, PW-3, PW-12, PW-13, PW-22 and PW-30 in the TIP. 104. In view of the aforesaid submissions made by the learned Counsel appearing for the State and the materials placed on record, we do not find any reason to interfere with the findings recorded by the High Court so far as involvement of Accused No. 4 in the incident is concerned. There are cogent and convincing evidence available against him to prove and establish his involvement in the entire incident which justifies his convictions and sentences on each count. therefore, in our considered opinion, the High Court rightly held that Accused No. 4 had play....
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....n found to be admissible by both the courts below. He further submitted that discovery of 9 mm pistol which was used in the firing at the instance of Accused No. 5 proves and establishes the guilt of Accused No. 5. 108. On a careful perusal of the material on record and in the light of the submissions made by the learned Counsel for the parties we find that the evidence of PW-18 who was an eye-witness of the incident is credible and trustworthy as he described the incident as well as the assailants in detail. Furthermore, he identified the accused persons i.e. Accused Nos. 4 to 7 in the court as well as during the TIP. His evidence has been found to be trustworthy and reliable by both the courts below. The High Court held that TIP with respect to Accused Nos. 5 and 6 was vitiated because Accused No. 5 had a squint in the right eye and the dummies used in the TIP did not have the similar squint in the right eye. But, the High Court did not make it clear as to why the identification of Accused No. 6 was also vitiated. Accused Nos. 5 and 6 were also identified by ten witnesses. therefore, we find the TIP as a reliable piece of evidence as the same proves the identity of accused per....
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....t identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. 14. "7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthines....
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.... who deposed that he chased the car up to some distance but did not fire any shot, although armed with a carbine. The statement of PW-13 also gets corroboration from the evidence of PW-30, who was an injured witness of the incident and who deposed that he saw both the bodyguards of Milind Vaidya chase the car and one of them fired at it. therefore, it would not be proper and justified to discard his evidence only because he did not state about the incident to anyone for four days. Since his evidence is corroborated and supported by other material evidence on record the same cannot be discarded only because of the aforesaid reason. 112. The evidence of PW-12 and PW30, who were injured witnesses, was disbelieved by the High Court though these witnesses have given a reasonable description of the assailants. Moreover, their evidence was not shaken in the cross-examination. PW-30 deposed that he saw all the 3 assailants and saw both the bodyguards of Milind Vaidya chase the car and one of them fired at it. He also described the assailants. In our opinion, the injured witnesses as well as the other eye-witnesses have no reason to falsely depose against the accused persons as it was no....
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....09.06.1999. 115. Accused No. 6 stated about his earlier involvement in murder cases in his confessional statement. He also stated as to how he met Accused No. 5 in Arthur Road Jail and that Accused No. 5 introduced him to the Chhota Shakeel gang. Confessional statement of Accused No. 6 is found to be almost identical to the confessional statement of Accused No. 5. 116. Both the aforesaid confessional statements of Accused Nos. 5 and 6 were held to be vitiated and inadmissible by the High Court on the ground that the requirements under Section 18(3) of MCOCA were not fully complied with. The High Court came to this conclusion on the basis that the record of the preliminary inquiry in respect of Accused Nos. 5 and 6 recorded on 23.07.1999 could not be traced. The High Court also held that there was no compliance of the mandatory provisions of Rule 15 of the MCOC Rules which requires a certificate to be attached with the confessional statement. 117. When we analyze the material on record and the aforesaid confessional statements of Accused Nos. 5 and 6 we find that although the fact that the pre-confessional statements were recorded on 23.07.1999 is not traceable, the fact th....
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....hat Accused No. 5 made certain telephone calls to gang leaders in Karachi, Pakistan. This fact gets corroboration from the discovery of 3 telephone booths in Bandra and Mahim at the instance of Accused No. 5 wherefrom telephone calls were made by him to the gang leaders in Karachi, Pakistan. This evidence gets further corroboration from the evidence of the owners of the telephone booths who deposed that calls were actually made to certain specific numbers in Karachi, Pakistan by Accused No. 5. In our opinion the High Court was not justified in holding that it was not established with certainty that those telephone calls even though made indeed from the booths identified by Accused No. 5 and on the numbers disclosed by him, were actually made by Accused No. 5 because the prosecution has examined six STD/ISD booth owners to prove that some of the accused had made telephone calls from their booths to Karachi, Pakistan and their evidence was found to be cogent and trustworthy by both the trial court as well as by the High Court itself. therefore, the view taken by the High Court with respect to Accused No. 5 is not a plausible view as the same is in contradistinction of the view taken ....
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.... life. 124. So far as Azzizuddin Zahiruddin Shaikh alias Abdul Sattar (Accused No. 7) is concerned, he was sentenced to capital punishment by the trial court. The High Court, however, on appeal while maintaining the order of conviction altered the sentence from capital punishment to that of imprisonment for life. Being aggrieved by the aforesaid order of conviction passed by the High Court, Accused No. 7 preferred a special leave petition being SLP (Crl.) No. 1469 of 2004 which was dismissed by an order dated 8th April, 2004. therefore, the order of conviction passed against Accused No. 7 sentencing him to undergo imprisonment for life stood upheld. So far as the State appeal as far as Accused No. 7 is concerned, it is filed only for the purpose of enhancement of his sentence in as much 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....
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....s and also rendered assistance in the commission of organized crime even though he did not fire any shot or carry arms with him. His participation in the crime was significant. 129. On an analysis we find that the aforesaid confessional statement of Accused No. 8 is supported by the confessional statements of the co-accused namely, Accused Nos. 5, 6 and 7. The confessional statement of Accused No. 7 which is found to be admissible in evidence and relied upon by both the courts below clearly establishes the role played by Accused No. 8. The role played by Accused No. 8 is also proved and established from the evidence of PW-22, a boy from Vadala (Jain Darsan Lane), who has given a sufficiently detailed account of what he saw on the day when the car was abandoned. He deposed that he had seen Accused No. 8 on 07.03.1999 while he was abandoning the car which was used in the shootout. He identified Accused No. 8 in the TIP. Accused No. 8 was also identified by PW-13, an eye-witness to the crime. The High Court found the testimony of PW-22 as truthful and trustworthy. 130. Evidence of Shrirang Balwanrao Shinde (PW-54), PSI, Crime Branch, Unit-IV and PW-31, pancha witness proves that....