Bombay High Court
Rajesh Dhanaji Dhondi vs The State Of Maharashtra on 6 May, 2016
Bench: V.K. Tahilramani
Apeal 393 -09.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 393 OF 2009
Majhar Nashir Shaikh
Age 25 years, Indian Inhabitant
Occ: Service,
Permanent resident of
Kanchan Nagar,
Beside Gujrat Primary School,
Room No.3, At and Post Vapi
Tal Pardi, District Balsad,
Gujrat
(presently lodged at Taloja
Central prison as an under trial
prisoner in the above matter ..Appellant
(Org.Accused No.4)
v/s.
The State of Maharashtra
at the instance of DCB. CID.
Mumbai, vide their
C.R.No.32/2004 ..Respondents
WITH
CRIMINAL APPEAL NO. 414 OF 2009
Sartajkhan Mumtajkhan Pathan
Age 32 years, Occ: Driver,
Res. at Post Ajitapurta, Mantargarh,
Abdullapur, Jalan,
Uttar Pradesh, Janjulbhai Chawl,
Near Railway Tower,
Near Bhillad Railway Stn.,
Bhillad, Balsad.
(presently in custody) ..Appellant
(Org.Accused No.3)
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v/s.
The State of Maharashtra ..Respondents
WITH
CRIMINAL APPEAL NO. 440 OF 2009
Rajesh Dhanaji Dhondi
Age 31 years,
Res. at & Post Aklas,
Dadripada, Tal: Umbargaon,
District Valsad,
(at present in Nasik Central Prison) ..Appellant
(Org.Accused No.1)
v/s.
The State of Maharashtra
at the instance of Airport Police Station
C.R.No.32/2004 & DCB CID Unit VIII
C.R.No.141 of 2004 ..Respondents
WITH
CRIMINAL APPEAL NO. 968 OF 2009
Ramesh Shankar Kharwa
Age 32 years,
Res. at & Post Nagwas,
Tal: Umbergaon, District Balsad,
(at present lodged in Nasik Central Prison) ..Appellant
(Org.Accused No.2)
v/s.
The State of Maharashtra
at the instance of Airport Police Station
C.R.No.32/2004 & DCB CID Unit VIII
C.R.No.141 of 2004 ..Respondents
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Mr. Khan Abdul Wahab a/w. Naima Shaikh for the Appellant in
Apeal 393 of 2009.
Mr.Aniket Vagal for the appellants in Cri. Appeal No. 414 of 2009,
440 of 2009 and 968 of 2009.
Smt. V.R.Bhosale, APP for the Respondent/State.
CORAM : SMT. V.K.TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ.
RESERVED ON : MARCH 14, 2016.
JUDMENT DATED : MAY 06, 2016.
JUDGMENT (PER SMT. ANUJA PRABHUDESSAI, J).
1. The appellants- Original accused nos.4, 3, 1 and 2 (herein after
referred to accused Accused no.4, Accused No.3, Accused No.1 and
Accused No.2 respectively) were tried for the offences under Section
364A, 365, 397 of IPC and under Section 3(1)(ii), 3(2), 3(3), 3(4) of
the Maharashtra Control of Organized Crime Act, 1999, (in short
MCOC Act) in MCOC Case No.15 of 2005. By judgment and order
dated 17.2.2009 the Spl. Judge convicted the accused and
sentenced them to life imprisonment and to pay fine of Rs.25,000/- in
default rigorous imprisonment for three years in respect of the
offence under Section 364A. The accused are sentenced to undergo
rigorous imprisonment for 7 years and fine Rs.10,000/- in default to
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undergo rigorous imprisonment for one year for each of the offences
under Section 365 and 397 of IPC. The accused nos. 1 to 3 are also
convicted for the offence under Section 3(1)(ii) whereas the accused
no.4 is convicted for offence under Section 3(4) of MCOC Act and
have been sentenced to undergo rigorous imprisonment for five
years and fine of Rs.5 lakhs each and in default to undergo rigorous
imprisonment for three years. The appellants-accused by these
appeals have assailed the legality and validity of their conviction and
sentence.
2. Briefly stated the prosecution case as unfolded before the trial
court is as under:
PW2 Pradip Solanki, the brother-in-law of the first informant
PW1 Manoj Rana, was a model and acted in TV serials. He came
across one advertisement of Omkar Telefilms, Mumbai, published in
Times of India dated 29th September, 2004 calling for the portfolio of
young and dynamic boys and girls between the age group of 16 to
25 years for audition of mega tele serials. PW2 Pradip sent his
biodata as required in the said advertisement. PW2 received a
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phone call from one Aryan Shah informing him that he was selected.
PW2 was called for audition at Mumbai on 21 st October, 2004. PW2
was told that he would be received by their person at the airport.
3. PW3 Prashant Rana, brother of the first informant decided to
accompany Pradip. On 21st October, 2004 PW2 and PW3 proceeded
to Mumbai by Deccan Airways. They reached Mumbai at 11.00 a.m.
The absconding accused Raju and the Rajesh (A1), Sartaj (A3), and
Majhar (A4), received them at the airport. They took PW2 Pradip
and PW3 Prashant towards Gujrat by a grey coloured Maruti Esteem
Car bearing No. GJ 15 C 2962. PW3 was told that he could not
accompany PW2 and he was dropped at Hotel Gulfam.
4. PW2 Pradip was told that he was being taken for audition. The
accused no.2 also joined them. PW2 was taken to a house which
was owned by the mother of Ramesh(A2). The accused were armed
with weapons. One of the accused pointed a revolver at PW2. They
took PW2 inside the house, tied his hands and legs, and detained
him in one of the rooms of the said house. Later in the evening, the
accused brought PW3 to the said room. He too was tied and
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detained in the said room in the same manner.
5. According to the prosecution on the same night at about 11.30
p.m. PW1 received a phone call from the absconding accused Raju
who told him that PW2 and PW3 were abducted. He demanded
ransom of Rs.1 crore for their release and told PW1 that the details
of the payment as well as of the place of payment would be given on
the next day. On 22.10.2004 PW1 Manoj as well as PW5 Pawan,
brother of PW2 Pradip received several such ransom calls for
release of PW2 and PW3. On 23.10.2004 PW1 Manoj came to
Mumbai and lodged a FIR Ex.18 at Airport Police Station, Mumbai.
Pursuant to the said FIR PW13 PI Hareshwar Pimple registered
Crime No.32 of 2004 for offences under Section 406, 363, 368, 387
r/w.34 IPC.
6. The accused were also involved in Crime No.64 of 2004 under
Section 365, 384, 342 and Section 302 of IPC registered at
Umargaon Police Station, Gujrat. Acting on a tip off, on 25.10.2004
at about 3 am PW21 Arun Bagwe and other police personnel of
Umargaon Police Station raided the house and rescued the victims.
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The accused were nabbed on the spot and were arrested. The fire
arms, weapons and other incriminating material found in the said
house was seized. One of the accused Sanjay Chaudhary was
subsequently killed in an encounter.
7. PW13 Hareshwar Pimple, PI Airport Police Station, Mumbai,
who was investigating the crime No.32 of 2004 took custody of the
accused from Gujrat Police Station under transfer warrant. The
investigation revealed that the accused were involved in several
crimes of similar nature committed by or on behalf of an organised
crime syndicate headed by the absconding accused Aryan Shah @
Bunty Pandey. PW22 therefore submitted a report to the
Commissioner of Police for application of provisions of MCOC Act.
Prior approval was received vide Exh.64 and further investigation
was conducted by PW23 Vinayak Kadam, the Assistant
Commissioner of Police. Upon obtaining sanction Exh.65 from the
Commissioner of Police, Brihan Mumbai, charge sheet was filed
before the Special Court, Mumbai under sections 3(1)(ii), 3(2), 3(3),
3(4) of MCOC Act against Rajesh Dodi, Ajgar Mumtaj Khan @ Raju,
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Ramesh Shankar Kharwa, Sartajkhan Mumtajkhan Pathan and
Mazhar Nasir Shaikh @ Mohsin.
8. The prosecution, in support of it case examined 23 witnesses.
The statements of the accused were recorded under Section 313
Cr.P.C. The defence of the accused was of total denial. The
learned Special Judge held the accused guilty and convicted and
sentenced the accused as stated above, relying mainly on the
testimony of the victims- PW2 and PW3, the family members who
had received the calls- PW1, PW5 and PW6 and the police officers-
PW21, PW22 and PW23. Being aggrieved by the said conviction
and sentence, the accused have preferred these appeals.
9. Shri Khan, the learned counsel for the accused has submitted
that no identification parade was held and that the witnesses had
identified the accused for the first time after a period of about four
years from the date of the incident. He therefore claims that the
prosecution has not established the identity of the accused.
10. The main thrust of the argument of learned counsel for the
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accused is that in the absence of any evidence to show that there
was threat to the life or body of the kidnapped person in the event of
ransom money not being paid, Section 364-A IPC would not be
attracted.
11. He has further submitted that the prosecution has not
examined material witnesses, particularly the police officer from
Gujrat who had allegedly recovered the weapons, arrested the
accused and rescued the victims. The Learned Counsel urges that
there are glaring discrepancies in the case of the prosecution and
the evidence casts serious doubt on the credibility of the witnesses.
The learned Counsel for the accused further submitted that the
learned trial Judge has wrongly held the accused guilty and the
provisions of MCOC Act have been wrongly invoked. The learned
Counsel for the accused therefore contends that the accused are
entitled for acquittal.
12. Smt. Bhosale, the learned APP has submitted that the order of
conviction and sentence recorded by the learned Special Judge
needs no interference. Refuting the contention that the identity of
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the accused has not been established, the Learned APP has
submitted that PW2 and PW3 have identified the accused. The
learned APP has further submitted that the unimpeachable testimony
of PW2 and PW3, which is duly corroborated by PW1, PW5 and
PW6 amply proves that the accused herein were involved in
abducting them for ransom. She contends that the testimony of
PW2 and PW3 proves that the accused were armed with weapons
and had detained and threatened them. She therefore contends that
the prosecution has proved the involvement of the accused beyond
reasonable doubt.
13. Section 364-A IPC, which is an aggravated form of kidnapping
and abduction, was inserted through the Amending Act 42 of 1993
and the same reads as under:
364A. Kidnapping for ransom, etc.--Whoever
kidnaps or abducts any person or keeps a person in
detention after such kidnapping or abduction and
threatens to cause death or hurt to such person, or by
his conduct gives rise to a reasonable apprehension
that such person may be put to death or hurt, or causes
hurt or death to such person in order to compel the
Government or 2[any foreign State or international
inter-governmental organisation or any other person] to
do or abstain from doing any act or to pay a ransom,
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shall be punishable with death, or imprisonment for life,
and shall also be liable to fine.
14. A plain reading of this section indicates that to establish
offence under section 364A IPC the prosecution has to establish
the following essential ingredients of section 364 A IPC:
(i) That the accused kidnapped or abducted a person;
(2) kept him in detention after such kidnapping or ab-
duction;
(3) The kidnapping or abduction was for ransom.
(4) The accused threatened to cause death or hurt to a
kidnapped or abducted person, or
(5) The conduct of the accused was sufficient to raise a
reasonable apprehension in the mind of the kidnapped
or abducted person that death or hurt may be caused
to such person.
15. In the instant case, the evidence of PW2 reveals that he is
a resident of Delhi. He was a model and had acted in TV serials.
He had come across an advertisement published by Omkar
Telefilms, Mumbai, in "Times of India" calling for bio-data of those
working as models and in TV serials for audition of mega tele
serials. PW2 sent his bio-data by e-mail as well as by courier.
Some days later he received a phone call from one lady, who
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identified herself as Lily. She confirmed receipt of his biodata
and informed him that he was selected for audition. Some days
later, he once again received a phone call from one person, who
identified himself as Aryan Shah. He told him to come to Mumbai
by flight. PW2 was told that his person at the Mumbai Airport
would receive him.
16. On 21.10.2004 PW2 Pradip and PW3 Prashant, brother of
his sister's husband came to Mumbai by Deccan flight. PW2 has
deposed that he had sent his flight details to Aryan Shah. They
were received at the airport by one person who identified himself
as Raju. PW2 has deposed that the accused no.4 had called
Aryan Shah and upon taking telephonic instructions from him, the
accused no.4 had told him that PW3 Prashant could not accompa-
ny him for audition and they suggested that Prashant should stay
in a hotel. Thereafter the accused took them towards Gujrat by an
Esteem Car. He has deposed that the said vehicle was driven by
the accused no.3 Sartaj. The deceased accused Sanjay was
seated besides the drivers' seat and the absconding accused Raju
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and the accused no. 4 Majhar sat along with them on the rear
seat.
17. PW2 has deposed that PW3 Prashant was dropped at
Gulfam Hotel while he was taken to some other location under the
pretext of being taken for audition. PW2 has deposed that after
traveling for some while, the driver took the vehicle towards a
forest area. When they got down from the car he noticed that the
accused were armed with weapons. One of the accused pointed a
gun at him. They took him inside the said house, tied his hands
and legs and detained him in one of the rooms of the said house.
About four hours later, PW3 Prashant was also brought in the
same room and he too was tied and detained in the said room.
They were told that they were abducted. PW2 has deposed that
the accused had recorded a message in his voice as "Baba meri
baat maan jao, yeh jo mangte hai inhe de do, varna yeh log mujhe
maar dalenge" and thus asked his father to meet their demands.
18. PW2 has deposed that accused no.2 Ramesh was also
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present in the said room along with the other accused. He has
further stated that all the four accused were armed with weapons.
PW2 has deposed that the accused had threatened them by
firearms and other weapons. He has deposed that the accused
used to guard them in turns. PW2 has denied the suggestion that
he had not come to Mumbai and that the accused had not taken
him to Gujrat and detained him in a room. PW2 has deposed that
about 2-3 days after the detention, during late night hours, the
police entered the room and rescued them and took the accused
to the police station.
19. The testimony of PW2 is corroborated by PW3 in all material
aspects. He has deposed that on 21.10.2004 he had accompanied
PW2 to Mumbai. Raju, Majhar, Sartaj, and Sanjay received them
at Mumbai Airport. They took them to the parking area wherein
one grey colour Esteem car was parked. The accused took them
to Gujrat. PW3 has deposed that he was told that he could not
accompany PW2 for auditioning. The accused dropped him at
Hotel Gulfam and they proceeded further. He has deposed that
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he had tried to call Pradip but was unable to contact him as his
phone was switched off. At around 8 to 8.30 p.m the accused
Sartaj and Sanjay came to the hotel. They told him that Pradip
was busy in audition and asked him to accompany them. He has
stated that he traveled along with them by the same car and after
traveling some distance for about 3-4 hours when they reached
towards a forest area, he was made to get down and was taken to
one room. They tied his hands and legs and brought him in the
same room where Pradip was also tied. They blindfolded them
and recorded a message in their voice as "Hame bachalo, yeh jo
mangte hai, inhe de do". He has deposed that accused Sartaj
and Sanjay were constantly visiting the said room and Raju and
Ramesh were keeping watch on them and they had guns and
other weapons with them. He has deposed that they were
confined in the said room till they were rescued by the police in the
early morning hours on 25.10.2004. He has stated that the police
apprehended all the five accused from the said house.
20. PW1 Manoj, is the brother-in-law of PW2 Pradip. This
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witness has deposed that PW2 had submitted his biodata in
response to the advertisement published by Omkar Telefilms. He
has further stated that PW2 was called for audition and that his
brother Prashant had accompanied PW2 to Mumbai on
21.10.2004. On the same date at around 10 p.m. he had called
PW2 Pradip on his cell phone. PW2 Pradip had told him that
PW3 Prashant was not allowed to join him for audition and he was
dropped in a hotel. He has stated that later he received a phone
call from Prashant informing him that Pradip had not returned.
Prashant once again called him at 7 p.m. and told him that the
absconding accused Raju who had received them at the airport
had come to the hotel to take him to the place of audition.
Thereafter he did not receive any call either from PW2 or PW3.
PW1 has deposed that at about 11.30 p.m. he received a call from
one person who identified himself as Raju. He told him that PW2
and PW3 were abducted and demanded Rs.1 crore for their
release. The said caller told him to keep the money ready. On
22.10.2004, the said person phoned again questioning him
whether he had arranged the money. PW1 told him that he could
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not arrange such a huge amount in such a short time and
requested him to give some more time. He requested the caller
to allow him to talk to PW2 and PW3.
21. PW1 has stated that on the same date during the afternoon
hours Pawan, brother of PW2 had received phone call on his
landline. Pawan had spoken to Pradip and Prashant and they
had informed him that they were beaten up. PW2 and PW3
requested to release them by paying the ransom money. PW2
has deposed that he booked the tickets on the same night and he
came to Mumbai. On arriving at Mumbai Airport he lodged the FIR
(Exh,18) with the Airport Police Station, Mumbai. He has deposed
that thereafter he was informed by one lady ACP that Pradip and
Prashant were traced at Surat. He along with his friend and the
police personnel went to Surat. He has deposed that by the time
they reached Surat, Pradip and Prashant were already rescued
and were present at Umargaon Police Station, Surat. He has
stated that after completing all the formalities, the police at
Umargaon Police Station handed over the custody of Pradip and
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Prashant to him.
22. PW5 Pawan is the brother of PW2 Pradeep. This witness
had also deposed that pursuant to the advertisement of Omkar
Telefilms published in Times of India, Pradip had given his biodata.
He has deposed that Pradip and Prashant had gone from Delhi to
Mumbai on 21.10.2004 . PW5 has deposed that on the same day
at about 11 p.m. he received a phone call and that the caller had
identified himself as Raju. He was told that his children were in his
custody and he asked him to arrange for money. The said person
called him again on the next morning and asked him whether he
had made the arrangement and had further told him that he would
allow him to talk to his children only after arranging the money.
The said person had called him several times to enquire whether
he had arranged the ransom amount, and when he requested the
said caller to permit him to talk to his brother, he could hear the
recorded message in Pradip's voice repeatedly saying that they
have been caught and to meet their demands or else they would
kill them. He has stated that he received several calls during this
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period asking him to arrange for the ransom amount. He was told
that in the event anything goes wrong while collecting the money,
the children would be killed. He has stated that on the next date
Pradip and Prashant returned home.
23. PW6 Rachana Solanki is the wife of PW5 Pawan Solanki.
She has deposed that her brother-in-law had accompanied Pradip
to Mumbai on 21.10.2004. She has stated that she had phoned
Pradip just to verify whether he had reached Mumbai. Pradip had
told her that some persons had came to the airport to receive
them. She had once again called him at about 5.30 p.m. and he
had told her that he was traveling and had told her that he would
call her back. Thereafter she did not receive any call from Pradip.
She has stated that on 22.10.2004, after she had learnt about
abduction, she had received a call from the abductor. She had
identified herself as the mother of Prashant. The abductor had
told her that Prashant was in his custody and that she should pay
them Rs.1 crore as ransom amount. She told the abductor that
she was poor and was unable to arrange the money. She has
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further deposed that she had told him that she would like to talk to
her son and thereafter the abductor had given the phone to
Prashant. She has deposed that Prashant had told her to meet
the demands of the abductor. She has further deposed that the
abductor had told her that her son would not be released unless
the money was paid, she was further told not to report the matter
to the police. She has stated that subsequently the police had
rescued Pradip and Prashant.
24. The prosecution has also examined PW14 Anand Laxman,
the Security Manager at Santa Cruz Airport, he has produced the
passenger list of flight no. DN-603 on Delhi Mumbai Sector
dt.21.10.2004, as well as the tickets of Air Deccan, dated
21.10.2004 from Delhi to Mumbai, issued in the name of Pradip
Solanki and Prashant Rana at Exh.37 colly.
25. PW21 Arun Bagle, PI attached to Umargaon Police Station,
Gujrat, has deposed that he was investigating Crime No.64 of
2004 under Section 302, 384, 342 of IPC. He has deposed that
the accused in the said crime had abducted one person and
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thereafter committed his murder and thrown the body in a dam. He
has stated that in the course of investigation of the said case he
had arrested the accused Majhar Shaikh and others. He has
stated that one of the accused had died in an encounter.
26. The Investigating Officer, PW22 Ajit Surve has deposed that
Umargaon Police while investigating crime no.66 of 2004 arrested
the accused. Some arms and ammunition were seized from their
possession. One of the accused person Sanjay Chaudhary was
killed in an encounter. He has deposed that the four accused
who were involved in crime No.32 of 2004 were brought to
Mumbai by the Airport Police under transfer warrant. PW22 has
deposed that he had gone to Umargaon Police Station at Gujrat.
He had learnt that the belongings of the victims were recovered
from the deceased accused Sanjay Chaudhary and Sartaj. He
had learnt that the accused were also involved in several other
crimes registered at Mazalpur Police Station, Surat Police Station
etc. He has further deposed that the accused Majhar and the
deceased accused Sanjay Chaudhary were also involved in Crime
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No.315 of 2004 relating to counterfeit currency notes and the said
accused Majhar was arrested. PW22 has deposed that the
vehicle used for abducting the victims as well as some belongings
of the victims were recovered by Umargaon Police.
27. The sequence of events as brought on record through the
evidence of the aforementioned witnesses clearly indicates that an
advertisement was published in Times of India by "Omkar
Telefilms" calling for the resume of the aspirant models to act in a
TV serial. PW2 being a model sent his biodata. He was
telephonically informed that he was selected and he was called to
Mumbai under the pretext of auditioning. The testimony of PW2
and PW3 as well as the documents at Exh. 37 colly amply prove
that PW2 and PW3 had traveled from Delhi to Mumbai by Air
Deccan, which had departed Delhi at 8.55 am and reached
Mumbai at about 11 am. They were received at the airport by the
accused nos. 1, 3 and 4 and the absconding accused Raju. The
testimony of PW2 and PW3 further reveals that these four
accused had taken them to Gujrat by Esteem car. PW3 was
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dropped at Gulfam hotel whereas PW2 was taken to a house in a
forest area. The accused had tied his hands and legs and had
detained him in the said house. Subsequently, PW3 was also
brought to the said house and he too was detained in the said
house in the similar manner. It is therefore apparent that PW2
was called to Mumbai with an intention of abducting him for
ransom and upon reaching Mumbai, the accused had abducted
PW2 as well as PW3 and detained them in a room located in
forest area. It is thus evident that the intention from inception was
to abduct PW2 for ransom.
28. The evidence of PW1, PW4 and PW6 reveals that they had
received phone calls demanding one crore as ransom money for
release of the victims. The evidence of these witnesses prove that
the caller had played the recorded audio message of PW2 and
PW3 requesting them to meet the demands of the abductors and
further informing that they would be killed in the event the
demands were not met. It may be mentioned that the audio
cassettes containing record of conversation in which demand for
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ransom was raised as well as prerecorded requests for release
were seized by the police. The learned judge has not relied upon
this evidence. Having examined the law and legal position in Ram
Singh & ors. Col. Ram Singh AIR 1986 SC 3, we are of considered
view that the pre-conditions essential for tape recordings to be
admissible as evidence, have not been satisfied. Hence, the tape
recordings of the conversations cannot be relied upon. However,
this does not disturb or affect the statement made by PW-1 PW5
and PW6 regarding the ransom calls, which were received.
Furthermore the evidence of the victims- PW2 and PW3 reveals
that the accused had recorded their voice messages requesting to
meet the demands of the abductors failing which they would be
killed. The evidence of PW1 and PW4 indicates that when they
had asked the caller/abductor to allow them to talk to the victims,
the caller had played the pre-recorded request. This fact
establishes beyond reasonable doubt that the demand calls were
made by the accused. The facts on record therefore prove that the
victims were abducted for ransom.
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29. The evidence of PW2 and PW3 further proves that the accused
were armed with guns and other weapons. The testimony of the
victims also proves that the accused had threatened them at the
point of gun and other weapons. The evidence of PW2 and PW3
reveals that the accused were continuously keeping a guard over
them. The aforesaid conduct, in our view was sufficient to raise a
reasonable apprehension in the minds of the victim that the
accused would cause them hurt in the event the ransom amount
was not paid. The fact that PW3 had told PW6 that the abductors
were not good to them and had asked her to meet their demands
is a clear indication of the fact both the victims in fact
apprehended that the accused would cause them hurt in the event
their demands were not met.
30. As regards identification of an accused, the legal position has
been summarized by the Hon'ble Supreme Court in Dana Yadav
@ Dahu and ors V/S State of Bihar, (2002) 7 SCC 295 inter alia
as under:
"37...(c) Evidence of identification of an accused in
court by a witness is substantive evidence whereas
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that of identification in test identification parade is,
though a primary evidence but not substantive one,
and the same can be used only to corroborate
identification of accused by a witness in court.
(d) xx xx xx xx xx xx xx xx xx xx
(e) Failure to hold test identification parade does not
make the evidence of identification in court
inadmissible rather the same is very much admissible
in law, but ordinarily identification of an accused by a
witness for the first time in court should not form basis
of conviction, the same being from its very nature
inherently of a weak character unless it is corroborated
by his previous identification in the test identification
parade or any other evidence. The previous
identification in the test identification parade is a check
value to the evidence of identification in court of an
accused by a witness and the same is a rule of
prudence and not law.
(f) In exceptional circumstances only, as discussed
above, evidence of identification for the first time in
court, without the same being corroborated by
previous identification in the test identification parade
or any other evidence, can form the basis of
conviction.
(g) Ordinarily, if an accused is not named in the first
information report, his identification by witnesses in
court, should not be relied upon, especially when they
did not disclose name of the accused before the
police, but to this general rule there may be exceptions
as enumerated above."
31. In the instant case, it is not in dispute that no
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identification parade was held in the course of investigation and
that the victims - PW2 and PW3 had identified the accused in the
court. However this by itself cannot be a ground to doubt the
testimony of the victims as regards the identity of the accused. It
has to be borne in mind that the victims had traveled with the
accused nos.1, 3 and 4 from Mumbai to Gujrat. The evidence of
the victims further reveals that the accused no.2 and the other
accused were guarding them in turns while they were detained in
the said room. The victims thus had sufficient time and opportunity
to see these accused while they traveled from Mumbai to Gujrat as
well as while they were confined in the room at Gujrat. Hence they
would not have difficulty in identifying them at a later date.
32. It is also pertinent to note that the evidence of PW17
Kanubhai Gaikwad, the then Sarpanch of Village Nagwas Gujrat,
reveals that the house wherein the victims were detained belonged
to the mother of the accused no.2. The evidence of PW21 Arun
Bagle and the victims also reveals that in the course of
investigation in crime number 64 of 2004, the said house was
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raided and the accused were apprehended from the said house
wherein the victims were held captive. These facts sufficiently
prove the complicity of the accused in the said crime. In the light of
the aforementioned fact situation, holding or non-holding of a Test
Identification Parade loses its significance.
33. The prosecution has thus established that the accused
had abducted PW2 and PW3 for ransom. They had detained PW2
and PW3 in a room. The accused were armed with weapons.
They had threatened PW2 and PW3 and had kept guard over them
till they were rescued by Gujrat Police. The accused had therefore
by their conduct caused a reasonable apprehension in the minds
of the victims that they would be put to death or hurt. Thus, the
prosecution has proved all the three ingredients of Section 364A of
IPC.
34. The accused are also held guilty of offence under section
397 IPC. The testimony of PW2 indicates that he had carried with
him cash of Rs.5000/- to 6000/- in addition to 450 to 500 US
dollars and 200-250 Canadian dollars. His testimony does not
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indicate that the accused had taken away the said cash in Indian
currency as well as US and Canadian dollars from his possession.
The evidence of PW3 also does not indicate that the accused had
committed theft of his belongings. The prosecution has also not
adduced any evidence to prove that the cash or any other
valuables were recovered from possession of the accused. As
stated earlier PW2 and PW3 were abducted and detained for
ransom. There is no evidence to indicate that the accused had
committed theft or that they had threatened or detained PW2 and
PW3 with an intention of committing theft. In the absence of such
evidence, conviction under Section 397 cannot be sustained.
35. It is the case of the prosecution that during the course of
investigation, it was revealed that the crime was committed by the
accused as members of or on behalf of organised crime syndicate
headed by the absconding accused Aryan Shah @ Bunty Pandey.
The investigating officer, PW22 therefore submitted a proposal
through the Assistant Commissioner of Police, for approval under
Section 23(1)(a) of MCOC Act. PW23 Vinayak Kadam, the then
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Assistant Commissioner of Police, being satisfied about the
applicability of the provisions under MCOC Act, forwarded the
proposal for approval. Upon receipt of the approval at Exh.64,
PW23 took over further investigation. The confessional statements
of the accused no.1 Rajesh, accused no.2 Ramesh and accused
no.3 Sartaj, at Exh. 50, 55 and 56 came to be recorded. PW23
made a proposal to the Commissioner of Police for grant of
sanction under Section 23(2) of MCOC Act. On receipt of the
sanction at Exh.65 he filed a charge sheet against the aforesaid
accused before the MCOC Court.
36. The learned judge has not relied upon the confessional
statements of the accused nos.1, 2 and 3 recorded by PW18, 19
and 20. Nonetheless, the learned trial Judge has relied upon the
testimony of PW21, PW22 and PW23 to hold the accused nos. 1, 2
and 3 guilty of an offence of 'organised crime', and the accused
no. 4 guilty of being a member of an 'organised crime syndicate'.
37. The Learned Counsel for the accused has contended
that there is no material on record to suggest that the accused are
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members of the organized crime syndicate of Aryan Shah as there
is no 'continuing unlawful activity' as contemplated under Section
2(d) of the MCOC Act connecting them with the said crime
syndicate.
38. The terms 'organised crime' and 'organised crime
syndicate' are defined under sections 2 (e) and 2 (f) of the MCOC
Act as under:
2(e) "Organised Crime " means any continuing
unlawful activity by an individual singly or jointly,
either as a member of an organised crime syndicate
or on behalf of such syndicate, by use of violence or
threat of violence or intimidation or coercion, or
other unlawful means, with the objective of gaining
pecuniary benefits, or gaining undue economic or
other advantage for himself or for any other person
or promoting insurgency;
2(f) "Organised Crime Syndicate" means a group of
two or more persons who, acting either singly or
collectively, as a syndicate or gang indulge in
activities of organised crime;
39. A plain reading of section 2 (e) would indicate that to
prove the offence of 'organised crime', among other requirements,
the prosecution is required to establish that the accused had
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indulged in continuing unlawful activity, which as defined under
section 2(d) of the MCOC Act reads as under:
2(d)."Continuing unlawful activity" means an
activity prohibited by law for time being in force,
which is a cognizable offence punishable with
imprisonment of three years or more, undertaken
either singly or jointly, as a member of an
organised crime syndicate or on behalf of such
syndicate in respect of which more than one
charge-sheets have been filed before a competent
Court within the preceding period of ten years and
that Court has taken cognizance of such offence.
40. A conjoint reading of these definitions clearly indicates
that in order to prove an offence of 'organised crime' or of being
member of 'organised crime syndicate', amongst other
requirements, the prosecution is required to prove that more than
one charge sheets have been filed in competent court within the
preceding period of ten years in respect of such offences, and that
the court has taken cognizance of such offence.
41. In the instant case, the evidence of PW21, reveals that
during the course of investigation of crime No.64 of 2004 under
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Section 302, 365, 384 and 342 of IPC, registered at Vapi Police
Station, Gujrat he had arrested the accused Majhar Shaikh while
the co-accused Sanjay Choudhari was killed in an encounter. He
had filed a charge sheet against Majhar and the other accused in
Crime No.64 of 2004. He has produced a copy of the chargesheet
at Exh.58. He has further deposed that the four other accused viz.
Chhotu Dhodi, Vinod Bhupendra Vora, Prakash Dubey and Bunty
Narayan Pandey were wanted in the said crime. He has stated
that the modus operandi of the accused was to kidnap persons for
ransom at the instance of Bunty Pandey and Vora.
42. The evidence of PW22 indicates that during the course
of investigation of the present crime, it was revealed that the
accused were involved in Crime No.I-315 of 2004 registered at
Umargaon police station relating to fake currency notes. He has
further deposed that the accused were also involved in Crime
No.64 of 2004 registered at Vapi police station and Crime No.66 of
2004 registered at Surat City Police Station. He has produced
certified copies of the charge-sheet in C.R. No.II-171/04 dt.
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25.10.2004 and chargesheet in respect of C.R.No. I-315/04
dt.8.11.2004 at Exh.62 colly.
43. PW22 has deposed that the absconding accused Bunty
Pandey was heading the organised crime syndicate and was
facing prosecution at Haldwani, Uttaranchal, Gujrat and at
Bombay. He has deposed that the investigations revealed that
these four accused along with the absconding accused Raju were
the active members of the said organized crime syndicate headed
by Aryan Shah @ Bunty Pandey.
44. It is pertinent to note that the prosecution has placed on
record only three chargsheets viz.(i) Chargesheet filed before
JMFC Pardi in respect of crime No.64/04 under Section 364A,
342, 384, 302, 201, 120B of IPC. (ii) Chargesheet filed before
JMFC, Umargaon in respect of crime no.II-171/04 for offences
under Sections 25(1B)(a) and 29 of Arms Act. and (iii)
Chargesheet filed before JMFC Umargaon, in respect of Crime
No.I-315/04 489A, 489B and 489C r/w. 120B of IPC.
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45. It is to be noted that the FIR in the present case was
registered on 23.10.2004, Though the FIR No. I-64/04 was
registered on 18.2.2004 i.e. prior to registration of the FIR in the
present case, the chargesheet in respect of the said crime was
filed on 10.02.2005 i.e. after registration of the present crime and
the cognizance of the same was also taken on the same date
i.e.10.02.2005.
46.
The FIR No.II-171/04 was registered on 25.10.2004. The
chargesheet in respect of the said crime was filed in the year 2005
and the cognizance of the offence was taken on 10.1.2005. The
FIR No.I-315/04 was registered on 08.11.2004. The chargsheet in
respect of the said crime was filed on 30.1.2005 and the
cognizance was taken on 1.2.2005. The said crime was registered
after registration of the present crime. It is also to be noted that
the said crime relates to the weapons, which were seized by the
Gujrat Police at the time of the arrest of the accused and the same
forms part of the same transaction.
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47. It may be mentioned that the definition of continuing
unlawful activity presupposes filing of more than one chargesheets
in the preceding 10 years and taking of cognizance of offence by
the court. In the instant case the FIR nos. II-171/04 and the FIR
no.I-315/04 were registered subsequent to the registration of the
FIR in the present case. Furthermore, all these chargesheets at
Exh.58 and 62 colly were filed subsequent to registration of the
crime in the present case. Though the witnesses have referred to
several other crimes allegedly registered against the accused, for
the reasons not known, the prosecution has not produced any
chargesheet filed against the accused and in respect of which
cognizance was taken by the competent court prior to registration
of the crime in the present case. The prosecution has therefore
failed to establish that atleast two chargesheets had been filed
against the accused before the competent court and that the court
had taken cognizance of such offence. The prosecution has
therefore failed to establish one of the essential requirements of
"continuing unlawful activity". Consequently, the prosecution has
failed to establish that the accused had indulged in continuing
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unlawful activity. This being the case, the accused cannot be held
guilty for offences under the provisions of MCOC Act.
48. Under the circumstances and in view of discussion supra
the appeals are partly allowed. The conviction and sentence
imposed on the appellants for offences under Sec 364A and 366 is
confirmed. The conviction and sentence under Section 397 IPC
and 3(1)(ii) and 3(4) of MCOC Act is hereby set aside and
quashed.
(ANUJA PRABHUDESSAI, J.) (SMT. V.K.TAHILRAMANI, J.)
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