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TMI Blog2011 (3) TMI 1749X X X X Extracts X X X X X X X X Extracts X X X X ..... to the prosecution, accused Nos. 1, 2, 3 and 5 are active members of the organized crime syndicate of Chhota Rajan. Accused No. 4 has aided, abetted and conspired with accused Nos. 1, 2, 3 and 5 in commission of various offences punishable under the MCOC Act. It had come to the notice of the police that there was a conspiracy to eliminate a prominent businessman of Mumbai, namely Bharat Shah. The plan was to kill him at the pan shop near `Mehta Bhuvan'. The office of Bharat Shah is situated at `Mehta Bhuvan', Charni Road, Mumbai. In order to successfully carry out the assassination, movements of Bharat Shah were kept under close watch. His office timings were communicated to these accused through telephone no. 0060133402008 by Bharat Nepali. The information about the conspiracy was received on or before 14th October, 2004 by D.C.P. (Detection), Mr. Dhananjay Dattatraya Kamlakar, PW-42 from his sources. He was informed that gangster Chhota Rajan, his gang members, and Bharat Nepali were communicating with the associates and other members of their syndicate on the aforesaid telephone number. According to the information of PW-42, the telephone number was of Malaysian origin. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding accused) 6. It appears that Amit Dalvi, accused No. 4 had rented a flat on Leave and Licence basis, on the first floor of a building known as `Ambika Niwas', Girgaum (Mumbai). The room had been taken in the name of Sachin Patil. The Leave and Licence agreement was signed on 17th October, 2004. All the accused were regularly using the aforesaid premises. 7. On 7th November, 2004, P.I. Nagesh Lohar received some reliable information at about 5.00 p.m. that members of Chhota Rajan gang were staying in Girgaum area. He was also informed that they had planned to kill a prominent businessman in the locality (Bharat Shah) on the directions of Bharat Nepali, who was the henchman of Chhota Rajan. The Police Inspector Lohar communicated this information to his staff and asked them to assemble at 5.30 a.m. on the next day morning as the informant had told him that he was working on the information and will confirm the same only next morning. On 8th November, 2004, the informant again arrived at the office of P.I. Lohar at about 5.00 a.m. and supplied further information. He stated that about five members of the Chhota Rajan gang were residing in Girgaum an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reverse side of the photocopies, some numbers and words BMW Neela (blue), Lexus 25, 123 Kala (black) were written. Search was also conducted of A2, which led to the recovery of .38 bore revolver of Smith and Wesson Company. It had six chambers of the pistol loaded with six live cartridges. One blue colour cell phone of Nokia company model 2100 was recovered from the shirt pocket. His leather wallet also contained a chit with mobile numbers. He was also carrying color photocopies of photograph of same person. In this photocopy, face of the person was encircled. On the reverse side of the said photographs, words were written in Devnagari script Charni road station javal, Mehta Bhuvan . He also disclosed his cell phone number as 9819240297. Similar search of accused No.3 produced .38 bore revolver kept into left side of his pant waist. The revolver was of Smith and Wesson make. It had five chambers loaded with five live cartridges. He was also carrying a silver colour cell phone of Nokia company. This accused disclosed his mobile number as 9890299354. This accused was also carrying a chit with names and phone numbers of Bharat Nepali, Balu Dhokare, Visha and Bapu. He was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary, 2005. The print out indicates that at about 5.55 p.m., there was a call of about 9.16 minutes on the telephone. The number was allegedly used by absconding accused Bharat Nepali. The print out of Cell No. 0060133402008 was forwarded to the police by the BSNL by letter dated 18th January, 2005(Ex.71). This print out also confirms that there was a telephone conversation at 5.55 p.m. on 28th January, 2004 of about 9.15 minutes. The number mentioned there was that of the appellant. 14. We may now briefly notice the further facts as brought on record by the prosecution. On 15th January, 2005, PW-41, A.C.P. Vinayak Kadam asked PW-42, D.C.P. (Detection), Mr. Kamlakar as to whether he had intercepted any communication on telephone number 0060133402008. On 17th January, 2005, Mr. Kamlakar, D.C.P. (Detection), PW-42 asked P.S.I. Dalvi, PW-17 to handover the sealed cassette to A.C.P. Kadam on 18th January, 2005. The sealed cassettes were duly handed over to A.C.P. Kadam on 18th January, 2005. A.C.P Kadam was aware that A.C.P. Tejasingh Chavan, PW-18 had arrested absconding accused Bharat Nepali on 11th February, 1997. He was also aware that Jagdish Kulkarni, PW-19 had earlier arre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... COC Act, IPC, and Arms Act. Since all the accused had pleaded not guilty, they were all put on trial. 18. The Trial Court convicted all the five accused as under:- 1) Charge head firstly is not considered as it is repetition in charge heads secondly, thirdly and fifthly. 2). Accused Nos. 1 to 5 are held guilty for the offence punishable under Section 3(1)(iii) r/w Sec. 3(2) of the MCOC Act, 1999 and are sentenced to suffer RI for 5 (five) years and to pay a fine of ₹ 5,00,000/- (Five lacs), each, in default, to suffer further RI for 1 (One) year. 3) Accused Nos. 1, 2, 3 and 5 are held guilty for the offence punishable under Section 3(4) of the MCOC Act, 1999 and are sentenced to suffer RI for 7 (seven) years and to pay a fine of ₹ 5,00,000/- (Five lacs), each, in default, to suffer further RI for 1 (one) year . Accused No.4 is not held guilty U/Sec.3(4) of the MCOC Act and is acquitted from the said charge. 4) Accused Nos. 4 and 5 are held guilty for the offence punishable under Section 3(5) of the MCOC Act, 1999 and are sentenced to suffer RI for 3(three) years and to pay a fine of ₹ 2,00,000/-(two lacs), each in default, to suffer further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sentence awarded by the Special Court. It may also be noteworthy here that the acquittal of appellant under Section 3 read with Section 25 of the Arms Act was not challenged by the prosecution/State. Therefore, the findings and acquittal regarding the same have become final and binding. 22. Aggrieved by the judgment of the High Court in Criminal Appeal No. 1044 of 2006, the appellant has filed the present special leave petition. 23. We have heard the learned counsel for parties. 24. Mr. Shekhar Naphade submitted that the High Court disbelieved the prosecution version in so far as the accused A1 to A4 are concerned. Having disbelieved the prosecution version against A1 to A4, the High Court committed a grave error in upholding the conviction of the appellant. He submits that the evidence against A1 to A4 and the appellant is identical. The High Court has made a distinction in the case of appellant only on the basis of the voice identification evidence. Learned counsel further submitted that the High Court has committed a grave error in treating the voice identification evidence as substantive evidence. Such evidence could at best be used as corroboration of the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to differ with the aforesaid finding. The High Court even after personally hearing the conversation between the Bharat Nepali on the one hand and accused Nos. 1 and 2 on the other hand, disbelieved the voice identification. It was held to be not established beyond reasonable doubt. Similarly, with regard to the alleged confession made by accused Nos. 2 to 4, the High Court observes that Both these confessions make clear reference to the evidence of search and seizure which according to the prosecution took place on 8th November, 2004 and which does not appear to be true . Both the confessions were rejected as a whole. The High Court even disbelieved the story of the prosecution with regard to accused No.4 taking room at `Ambika Niwas' on Leave and Licence basis. As a consequence of the aforesaid facts, accused Nos. 1, 2, 3 and 4 were acquitted. 27. In our opinion, these conclusions recorded by the High Court have destroyed the entire substratum of the prosecution case. Having disbelieved the entire prosecution version, the High Court proceeds to distinguish the case of the appellant. The only additional circumstance relied upon by the High Court against the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court was quite right in holding that the tape-records of speeches were documents , as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions: (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. (c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act. (emphasis supplied) In the case of Ram Singh Ors. Vs. C ol. Ram Singh 1985 (Supp) SCC 611 , again this Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows:- (1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Archbold Criminal Pleading, Evidence and Practice8 discuss the law in England with regard to Evidence of Identification. Section 1 of this Chapter deals with Visual Identification and Section II relates to Voice Identification. Here again, it is emphasised that voice identification is more difficult than visual identification. Therefore, the precautions to be observed should be even more stringent than the precautions which ought to be taken in relation to visual identification. Speaking of lay listeners (including police officers), it enumerates the factors which would be relevant to judge the ability of such lay listener to correctly identify the voices. These factors include:- (a) the quality of the recording of the disputed voice, (b) the gap in time between the listener hearing the known voice and his attempt to recognize the disputed voice, (c) the ability of the individual to identify voices in general (research showing that this varies from person to person), 8 2010 edition at pg: 1590-91 (d) the nature and duration of the speech which is sought to be identified and (e) the familiarity of the listener with the known voice; and even a confident recognition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, it is observed as follows:- Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the tape-recorded conversation could be no proper evidence. 33. In our opinion, the High Court has failed to take into consideration any of the precautions indicated above in accepting the evidence of Tejasingh Chavan, PW-18 and Jagdish Kulkarni, PW-19 with regard to the identification of Bharat Nepali and the appellant. The High Court, in our opinion, has given a wholly erroneous justification by holding that the voice of both the accused are distinctive, clear and identifiable. It is further observed that the conversation between the two accused is not a short conversation as in the case of accused Nos. 1 and 2. The High Court was also influenced by the fact that accused Bharat Nepali was in the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s . 38. This apart, the High Court erroneously overlooked the infirmities in the evidence with regard to the authenticity of the tape recording produced in Court. The conversation between the appellant and Bharat Nepali was said to have been recorded on 28th October, 2004 by PW-17, P.S.I. Vijay Dalvi. According to him, although, he had been monitoring the Malaysian number of Bharat Nepali from 1st October, 2004 till 27th October, 2004, he had heard no incoming or outgoing calls. The incriminating conversation was said to have been recorded on 28th October, 2004. This conversation was relayed to a police telephone and recorded. He put a slip on the recorded cassette indicating the date and time of the conversation as recorded. He then handed the tape over to the D.C.P., Dhananjay Kamlakar. He heard the tape on the same day. Even though the conversation revealed a conspiracy for commission of a serious offence, like murder of an influential personality in Mumbai city, he took no further action. He just sealed the tape and kept it in his personal custody. 39. Even when the accused A1 to A4 were arrested on 8th November, 2004 the cassette was not produced before the Investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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