9911796707
TMI Blog2009 (8) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 working for Chotta Shakeel and Faheem. It has been arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 spirit of Article 14. Article 14 applies to judicial process includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 sentencing hearing, comparative review of cases and similarly aggravating and mitigating circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory 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 life from the gallows and at the same time putting the guilty accused behind the bars for life. In my opinion, it would be a sound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the extreme penalty ultimately. 19. One of the accused in the instant case was acquitted in December 2003 by the High Court. It has been more than 8 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 differed on the question of imposition of death penalty. FACTS AND SITUATIONS OF THE PRESENT CASE 24. In the facts and circumstances of the case, and having regard to the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 role in the said incident as Accused 5, M Zuber Kasam Shaikh and Accused 6 Fazal Mohd. Shaikh. All the three accused stand on an equal footing and therefore the sentences to be imposed upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 three deceased were carried out on the next day. They were found to have sustained bullet injuries on different parts of their body and lead pieces were recovered therefrom. 39. It is worthwhile to mention here tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 10th April, 1999 regarding his involvement in the incident. It was recorded by DCP Parambir Singh (PW-51). 45. On 25th June, 1999, Mansur Hasan (Accused No. 4) took police party to the garage of one Chaggan Vithal where he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, 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 underworld don Dawood Ibrahim. 52. All the eight accused persons allegedly being members of organized crime syndicate of Chhota Shakeel were charged under Sections 3(1) r/w 2(e) of MCOCA. They were further charged of conspiring, abetting and fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged 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. Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu, Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar, Azzizuddin Zahiruddin Shaikh alias Abdul Sattar and Abdul Hasan Bande Hasan Mistri (Accused Nos. 5 to 8) respectively were charged under Sections 25 r/w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 had brought one white car bearing No. BLD 1949 for certain repairs and servicing. He did not take back the car immediately, although he was informed that the repairing and servicing had been completed. He visited the petrol pump later on. A card was prepared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 7 of The Arms Act 1959 and is hereby sentenced to death. He shall be hanged by neck till he dies. (ii) The Accused No. 5 is also found guilty and convicted of an offence punishable under Section 25(1A) read with Section 7 of the Arms Act and is sentenced to R.I. for ten years and payment of fine of Rs. 5000/-. In default of payment of fine h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using 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. (c) Convicted for an offence punishable under Section 307 I.P.C. read with Section 3(1)(ii) of the M.C.O.C. Act 99 read further 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 sentenced to R.I. for life and shall pay fine in the sum of Rs. 5 lakhs and in default of payment of fine to undergo further R.I. for three years. (d) Convicted for an offence punishable under Section 3(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri 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 payment of fine in the sum of Rs. 5 lakhs and in default of payment of fine to undergo further R.I. for two years. (e) Convicted for an offence punishable under Section 324 I.P.C. read with Section 3(1)(ii) of M.C.O.C. Act read further with Section 34 and 120B I.P.C. for causing fire arms injuries to persons namely, (i) Shri Babu Kashinath Mangela, Aged 40 years (ii) Shri Niteen Narayan Akre, aged 43 years (iii) Shri Murguan V. Tewar, aged 26 years and is hereby sentenced to R.I. for five years and shall pay fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo R.I. for one year. (f) Convicted of an offence punishable under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 compensation payable under Section 357 Cr. P.C. to each of the of the injured, Viz. i) Shri Milind Dataram Vaidya ii) Shri Nischal Krishna Choudhari iii) Shri Vinay Naryan Akre in equal shares. This is without prejudice to their right to recover compensation at civil law. Fifty percent of the amount of total fine if recovered appropriate by State of Maharashtra towards defrayal of costs/expenses of the prosecution properly incurred. 63. Feeling aggrieved by the aforesaid judgment and order dated 05.09.2000 passed by the Special Court, Mumbai Accused No. 7 filed Criminal Appeal No. 661 of 2000; Accused Nos. 1, 5 and 6 preferred a common appeal which was registered as Criminal Appeal No. 679 of 2000; Accused No. 8 filed Criminal Appeal No. 753 of 2000; and Accused No. 4 filed Criminal Appeal No. 758 of 2000 in the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 jumped the bail and are absconding. 68. Having dealt with the facts leading to the initiation of the criminal proceedings and having given a detailed account of the trial held against all the accused persons, we have set out the nature of the orders of convictions and sentences passed by the trial court as also the orders passed by the High Court on the appeals filed before it by the accused persons. Accused Nos. 1, 4 and 8 as well as the State of Maharashtra filed cross appeal in this Court. All the aforesaid appeals were listed before us for final hearing upon which we heard the learned Counsel appearing for the respective parties extensively. Some of the submissions of the learned Counsel appearing for the parties were overlapping and, therefore, we are going to set out the said submissions of the learned Counsel broadly. We, however, deal with the appeals filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted 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 incident admittedly happened during the night time and it was a case of sudden happening as alleged by the prosecution itself and, therefore, none of the accused could have been identified in such a short span of about few seconds. Since the identity of the accused persons could not be established and there are a number of vital contradictions in the evidence of the prosecution witnesses, the accused persons are liable to be acquitted. 73. The next contention was that the recovery of weapon alleged to have been used by Accused No. 7 was made from an open space i.e. the hutment roof of a house in a slum hutment, which was accessible to all for which Accused No. 7 could not have been held responsible as the weapon was not in his exclusive possession. It was submitted that there cannot be any conviction and sentence under the provisions of Arms Act in as much as the sanction order w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and injury caused to the deceased and the injured tally substantially with the medical report and, therefore, the accused persons should have been convicted and sentenced to the maximum punishment provided in law. He further submitted that the order of acquittal passed by the High Court in respect of Accused Nos. 5 and 6 namely Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu and Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar is liable to be set aside for which the State has filed an appeal against the order of acquittal which should be allowed and the said accused-appellants should be convicted and sentenced to the maximum punishment. 77. In the light of the aforesaid submissions of the counsel appearing for the parties we have scrutinized the entire records and the relevant provisions of law applicable to the case at hand. Section 2(1)(e) of the MCOCA defines " organized crime" as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 (1) of Section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that Sub-section. (3) Nothing contained in Sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice. (4) The Provisions of Sub-section (2) to (6) (both inclusive) of Section 21 shall apply in relation any deposit of firearms under the proviso to Sub-section (2) as they apply in relation to the deposit of any arms or ammunition under Sub-section (1) of that section.] Section 7 of the Arms Act, 1959 reads as follows: Section 7 - Prohibition of acquisition or possession, or of manufacture or sale of prohibited arms or prohibited ammunition No person shall- (a) acquire, have in his possession or carry; or (b) [use, manufacture,] sell, transfer, convert, repair, test or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept; shall be punishable with imprisonment for a term which shall not be less than 5 [one year] but which may extend to three years and shall also be liable to fine; Provided that the Court may for any adequate and special reason to be recorded in the judgment impose a sentence of imprisonment for a term of less than 6 [one year] Section 35 of the Arms Act, 1959 reads as follows: Section 35 - Criminal responsibility of persons in occupation of premises in certain cases Where any arms or ammunition in respect of which any offence under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons, each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish the fact that Accused No. 1 is also responsible for arranging a driver i.e. Accused No. 8 who drove the car which was used in the shootout. The other material which is placed against Accused No. 1 is his own confessional statement recorded under Section 18 of MCOCA. The legality of the aforesaid confessional statement is, however, challenged by Accused No. 1 on the ground that the same does not bear a certificate in the identical terms as specified under Rule 3(6) of the MCOC Rules and that the same was recorded by Parambir Singh (PW-51) who was an officer associated with or interest in the investigation of the same. 83. A perusal of Section 29 of MCOCA shows that it confers a rule making power on the State. The State of Maharashtra in exercise of the said power under Sub-section (1) of Section 29 of the Act framed rules known as ' Maharashtra Control of Organised Crime Rules, 1999'. Rule 3 provides for the procedure to be followed for recording of confession under Section 18 of MCOCA. Section 18 of the MCOCA reads as follows: Section 18 - Certain confessions made to police officer to be taken into consideration (1) Notwithstanding anything in the Code or in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eon. Further, Rule 3(6) of the Rules reads as follows: 3. Procedure for recording of confession under Section 18 of the Act. xxx (6) The confession recorded under Sub-rule (5) shall, if it is in writing, be signed by the person who has made such confession and by the Police Officer, who has recorded the said confession. Such Police Officer shall, under his own hand, also make a memorandum at the end of the confession to the following effect: I have explained to (name of the confessor) that he is not bound to make a confession and that, if he does so, any confession that he makes, may be used as evidence against him and I am satisfied that this confession has been made voluntarily. It has been made before me and in my hearing and has been recorded by me in the language in which it is made and as narrated by, the confessor. I have read it over to the confessor and he has admitted it to be verbatim and correct, and containing also full and true account of the confession/statement made by him. 84. We have perused the aforesaid confessional statement which substantially complies with the requirements of Section 18 of MCOCA read with the aforesaid rule. 85. It was a categorica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused No. 5 called Accused No. 1 who informed him that he (Accused No. 1) has spoken to Chhota Shakeel over the phone and informed him about the incident on the previous day. Accused No. 5 has also stated in his confessional statement that Accused No. 1 informed him that Chhota Shakeel had asked Accused No. 1 to pay Accused No. 5 some money. Thereupon, Accused No. 1 paid Rs. 20,000/- to Accused No. 5 at Vakola and Accused Nos. 5 and 6 together informed Accused No. 1 that they were going to Kolkata. 88. Besides aforesaid evidence on record there is also evidence of other witnesses namely PW-21, owner of an STD booth which was functioning under the name and style of J. J. Brothers Communication Centre. He stated in his statement that on 01.03.1999, Accused No. 1 made a phone call to a specific number in Karachi (Pakistan). PW-35, who is the owner of phone booth named Data Link, stated that he personally knew Accused No. 1. He deposed that Accused No. 1 would come to his booth regularly to make phone calls to Pakistan. PW-37, who was another witness and the owner of Azari Communication Action Centre, stated in his evidence that Accused No. 1 had made calls on specified numbers in Pak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the relevant paras: 415. When Section 15 TADA says that confession of an accused is admissible against a co-accused as well, it would be substantive evidence against the co-accused. It is a different matter as to what value is to be attached to the confession with regard to the co-accused as that would fall in the realm of appreciation of evidence. 416. The term "admissible" under Section 15 has to be given a meaning. When it says that confession is admissible against a co-accused it can only mean that it is substantive evidence against him as well as against the maker of the confession. 417. Mr. Natarajan said that the confession may be substantive evidence against the accused who made it but not against his co-accused. He reasoned that the confession was not that of the co-accused and it was not the evidence; it is the confessor who owned his guilt and not the co-accused; it is not evidence under Section 3 of the Evidence Act; it is not tested by cross-examination; and lastly, after all it is the statement of an accomplice. According to him it can have only corroborative value and that is a well-established principle of the evidence even though Section 3 and Section 30 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Law has to respond to the reality of the situation. What is admissible is the evidence. Confession of the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative. When the legislature enacts that the Evidence Act would not apply, it would mean all the provisions of the Evidence Act including Section 30. By judicial interpretation or judicial rigmarole, as we may put it, the court cannot again bring into operation Section 30 of the Evidence Act and any such attempt would not appear to be quite warranted. Reference was made to a few decisions on the question of interpretation of Sections 3 and 30 of the Evidence Act, foremost being that of the Privy Council in Bhuboni Sahu v. R. 8 and though we note this decision, it would not be applicable because of the view which we have taken on the exclusion of Section 30 of the Evidence Act. In Bhuboni Sahu case8 the Board opined as under: Section 30 seems to be based on the view that an admission by an accused person o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence which is produced before the court, it is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the court, it is the duty of the court to consider that evidence. What weight should be attached to such evidence is a matter in the discretion of the court. But a court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the court in dealing with a confession, because Section 30 merely enables the court to take the confession into account. 424. In view of the above discussions, we hold the confessions of the accused in the present case to be voluntarily and validly made and under Section 15 of TADA confession of an accused is admissible against a co-accused as a substantive evidence. Substantive evidence, however, does not necessarily mean substantial evidence. It is the quality of evidence that matters. As to what value is to be attached to a confession will fall within the domain of appreciation of evidence. As a matter of prudence, the court may look for some corroboration if confession is to be used against a co-accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement was recorded under duress or was not recorded truly by the officer concerned in whom faith is reposed. It is true that there may be some cases where the power is misused by the authority concerned. But such contention can be raised in almost all cases and it would be for the court to decide to what extent the said statement is to be used. Ideal goal may be: confessional statement is made by the accused as repentance for his crime but for achieving such ideal goal, there must be altogether different atmosphere in the society. Hence, unless a foolproof method is evolved by the society or such atmosphere is created, there is no alternative, but to implement the law as it is. (emphasis supplied in original) 94. In the case of Jameel Ahmed v. State of Rajasthan (2003) 9 SCC 673, at page 689, this Court summarized the aforesaid legal position as follows: 35. To sum up our findings in regard to the legal arguments addressed in these appeals, we find: (i) If the confessional statement is properly recorded, satisfying the mandatory provision of Section 15 of the TADA Act and the Rules made thereunder, and if the same is found by the court as having been made voluntarily and tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Accused No. 4) who was also represented by the same counsel who appeared for Accused No. 1. He was arrested on 21.06.1999 along with Accused Nos. 2 and 3. Mr. Zafar Sadique, learned Counsel appearing for Accused No. 4, who is also appearing for Accused No. 1, submitted before us that the prosecution failed to show that the confession statement made by him was voluntary or truthful as there is no corroboration of the said confessional statement. It was also submitted that the confessional statement made by Accused No. 4 having been retracted and the same having not been corroborated by the prosecution witnesses, the impugned judgment cannot be sustained. It was further submitted that since the aforesaid confessional statement was inadmissible against a co-accused and the same not being a part of Section 313 CrPC, the sentence passed against the said accused is liable to be set aside and quashed. The learned Counsel next submitted that Accused No. 4 had not played an active role in the shootout and had no knowledge of the conspiracy. 97. The aforesaid submissions when examined in the light of the records cannot be accepted. Though it is proved and established from the records tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the organized crime syndicate by providing phones, sim-cards and arranging the car which was used in the shootout gets support from the fact that Accused No. 4 himself admitted in his confessional statement that he was in constant touch with Mohd. Faheem on the phone, bought secondhand mobile phones and sim cards for gang members, stole the Maruti car, brought it to the petrol pump for repairs and subsequently handed over the same to Accused No. 7. 101. The aforesaid confessional statement is supported by the deposition of Deepak Narayan Shinde (PW-53), PSI, Crime Branch, Unit IV who deposed that Accused No. 4 led the police to Asia Communication Centre from where he had bought six or seven mobile phones. The aforesaid confessional statement is also supported by the evidence of the Manager of Chhagan Mitha Petrol Pump, who corroborated the fact that the aforesaid Maruti car was brought by Accused No. 4 to his petrol pump for repairs and servicing. Further, the evidence of PW-20, a pancha witness, whose name was kept secret establishes and proves that Accused No. 4 led the police to the said petrol pump on 25.06.1999. Accused No. 4 also led the police to Lucky Motor Training Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... active role in the shootout and he had no knowledge of the conspiracy is found to be baseless. 105. We now take up the case of Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu (Accused No. 5) and Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar (Accused No. 6) who were brought to Mumbai on 26.06.1999, pursuant to wireless message received from Delhi Police regarding their arrest by the Special Cell of Delhi Police. 106. Learned Counsel appearing for Accused Nos. 5 and 6 vehemently argued that the present appeal being an appeal against acquittal, in a situation wherein two views are manifestly possible, this Court must not interfere with the decision of the High Court. It submitted that the judgment of the High Court is a perfectly valid based on the basis of true appreciation of the material on record and the same does not call for any interference. 107. On the other hand, learned Counsel appearing for the State refuted the aforesaid submissions. He submitted that evidence of PW-18, a 12th standard student, who was the eye-witness of the incident and identification by him in the court has been found to be extremely credible by both the courts below. He submitted that PW-18 saw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld on 10.08.1999. 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 PW-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: 13. 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 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 iden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn.3, Vaikuntam Chandrappa v. State of A.P.4, Budhsen v. State of U.P.5 and Rameshwar Singh v. State of J&K6.). 110. Next contention of the learned Counsel appearing for the accused persons that the photograph of Accused No. 5 was published in an Urdu daily thereby making the identity of Accused No. 5 publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya were eye-witnesses of the incident. PW-2 stated in his deposition that he fired three rounds from his pistol at the Maruti car. PW-3 stated in his deposition that he chased the car up to some distance but did not fire any shot, although armed with a carbine. Their statements are corroborated by the evidence of PW-30 who 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. Statements of both the eye-witnesses i.e. PW-2 and PW-3 are also supported by the evidence of another eye-witness PW-13, a student who was a by-stander who deposed that he saw the bodyguard of Milind Vaidya chase the car with a rifle. Both of them were the persons who actually witnessed the shootout and were present at the site of the shootout. Furthermore, both of them have given a description of the physical features of the assailants including Accused Nos. 5 and 6. therefore, in our considered opinion, the High Court ought to have relied upon the evidence of PW-2 and PW-3 in the light of the circumstantial evidence brought on record. Thus, the trial court rightly found the evidence of PW-2 and 3 trustworthy and reliable as both of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused were sufficiently warned in advance about the consequences of their confessions. In our considered opinion, the High Court altogether failed to take into account the evidence of PW-64, the typist. The trial court has rightly held that all the requirements under Section 18(3) of MCOCA were fully complied with while recording the confessional statements. Moreover, Accused Nos. 7 and 8 also described the involvement of Accused Nos. 5 and 6 in the shootout in their respective confessional statements. We find that the confessional statements of Accused Nos. 7 and 8 are consistent with the confessional statements of Accused Nos. 5 and 6. Reliance in this regard may be made to the decision of this Court in the case of Jaywant Dattatray v. State of Maharashtra: (2001) 10 SCC 109, wherein it was held that irregularities here and there would not make the confessional statement inadmissible. 118. The reasoning of the High Court that the confessional statements of the co-accused are not admissible in evidence because Section 313 of CrPC had not been complied with is not tenable as there is a non-obstante clause in Section 18(3) which precludes the application of CrPC and, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be sustained although a 9 mm pistol was recovered at the instance of Accused No. 5 and it is proved that Accused No. 5 had used the pistol. Further, the report of the ballistic expert establishes and proves that the weapon and the bullets tally each other. The ballistic expert also opined in the report that one of the victims of the shootout was killed due to a bullet from a 9 mm pistol. Apart from the report of ballistic expert there is medical evidence available on the record which show that the death of the three deceased persons was caused by the injuries sustained due to fire arms during the shootout and, therefore, it can be inferred that the weapon was used in the shootout. It is pertinent to note that Accused No. 6 had also used the pistols and fired during the shootout. Moreover, though in case of Accused No. 7 the High Court held that the evidence does not disclose that the bullets fired from AK-56 had resulted in the death of any person, it convicted him under Section 27(2) of the Arms Act. 122. The finding of the High Court that the sanction order under Section 39 of the Arms Act suffered from non-application of mind is not sustainable in view of the material ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement was recorded in contravention of Section 18 of MCOCA and Rules and the said confessional statement was not corroborated by any cogent evidence to establish the guilt of the accused. It was further contended that the identification of Accused No. 8 by PW 22 in TIP does not inspire confidence and the same should not have been taken into consideration by the Court. 126. Learned Counsel appearing for the State, submitted that Accused No. 8 was the person who drove the car on the day of incident. He made Accused No. 1 drive the Maruti car in which Accused Nos. 5, 6 and 7 reached the place of incident and from the said car they fired at the victims. Furthermore, he was paid for the job by Accused No. 1. 127. On a meticulous perusal of the materials placed on record we find that the confessional statement of Accused No. 8 was recorded under Section 18 of MCOCA by DCP Ravindra Kadam (PW-39) on 16.08.1999 in which Accused No. 8 disclosed that he knew Accused No. 1 and has seen Accused No. 5 visiting Accused No. 1, that Accused No. 1 promised to pay Rs. 10,000/- to him for acting as a driver for the purpose of committing the crime and the amount was actually paid to him by Accused No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the aforesaid evidence on record we find that even though Accused No. 8 has not fired any shot and he was not carrying any arms with him but he played an active role in the crime and his participation in the crime was significant. He was the person who took the assailants to the place of incident by driving the stolen Maruti car and he received the money for driving the car which fact was admitted by him in his confessional statement. It is also clear from the records that he was an active member of the gang of Chhota Shakeel and was involved in the criminal activities of the organized crime syndicate run by the gang leaders. therefore, we uphold the order of conviction and sentence passed by the High Court against him. 132. In nutshell, order of conviction and sentence passed by the High Court in respect of Accused Nos. 1, 4 and 8 are to be maintained. Since no appeal against the acquittal of Accused Nos. 2 and 3 filed in the High Court against their acquittal by the trial court, the said acquittal is not the subject matter of appeal before us. Order of acquittal passed by the High Court in respect of Accused Nos. 5 and 6 is set aside in the appeal filed by the State and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
