Bombay High Court
Abdul Rauf Dawood Merchant vs The State Of Maharashtra on 1 July, 2021
Bench: S.S. Jadhav, N. R. Borkar
apeal878.1006.02.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 878 OF 2002
Abdul Rauf Dawood Merchant.
Indian, Aged 31 years,
R/o. Wafa Complex, "B" Wing,
Amrutnagar, Mumbra, Dist.Thane.
(Presently lodged at Pune central prison.) ... Appellant.
V/s.
State of Maharashtra.
(D.N. Nagar Police Station C.R. NO.
572/1998) ... Respondent.
Mr. Satish Maneshinde a/w. Ms. Deepali Thakkar, advocate for appellant in
Cr. Appeal No. 878 of 2002.
Ms. Madhavi H. Mhatre a/w. Ms. P.P. Shinde, APP for the State.
ALONGWITH
CRIMINAL APPEAL NO. 1006 OF 2002
The State of Maharashtra. ... Appellant.
v/s.
1. Ramesh Sadhuram Taurani
Age 41 years, 1st floor,
Mukta Bldg. 10th Road,
Khar (West), Mumbai
2. Abdul Rashid Dawood Merchant.
Age 28 years, Wafna Complex,
"D" Wing, Ground Floor,
R. No. 1, Mumbra,
... Respondents.
District Thane.
-------------------
Ms. Madhavi H. Mhatre a/w. Ms. P.P. Shinde, APP for the Appellant-
State.
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Mr. Apoorv Singh, advocate for Respondent No. 1 in Appeal No.
1006/2002.
Mr. Satish Maneshinde a/w. Ms. Deepali Thakkar, advocate for
Respondent No. 2
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : MARCH 3, 2021.
PRONOUNCED ON : JULY 1, 2021.
JUDGMENT :(PER SMT. SADHANA S. JADHAV,J)
CRIMINAL APPEAL NO. 878 OF 2002
1 This appeal impugns the Judgment and Order dated 29 th April,
2002 passed by the Additional Sessions Judge, Gr. Mumbai in Sessions Case
Nos. 15/1998 a/w. 448/1998 a/w. 1473/1998 a/w. 18/2000 a/w. 365/2001,
thereby convicting and sentencing the Accused No.19-appellant Mohd. Rauf
Dawood Merchant as under :
(i) For the offence punishable under section 302 of Indian Penal
Code to suffer imprisonment for life and to pay a fine of Rs. 5,000/-
I.d. to suffer S.I. for 3 months;
(ii) For the offence punishable under section 307 of the Indian Penal
Code to suffer imprisonment for life;
(iii) For the offence punishable under section 392 of the Indian Penal
Code to suffer R.I. for a period of 7 years and to pay a fine of Rs.
1,000/- I.d. to suffer S.I. for one month.
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(iv) For the offence punishable under section 397 of the Indian Penal
Code to suffer R.I. for a period of 7 years and to pay fine of Rs. 1,000/-
I.d. to suffer S.I. for one month.
(v) For the offence punishable under section 27 of the Arms Act and
is sentenced to suffer R.I. for 3 years and to pay fine of Rs. 1,000/- I.d.
to suffer S.I. for one month.
2 This appeal pertains to the murder of Gulshan Kumar Dua, the
Managing Director of Super Cassette Industries, who was in the business of
purchase of rights of audio cassettes of Hindi movies and private albums. He
was the founder of T-Series Company and producer of several movies. He
was shot dead in broad daylight. On 12 th August, 1997 the deity SHIVA
received the last offerings from his pious disciple Gulshan Kumar Dua, the
deceased. On that day at 10 a.m., he visited Shiv Mandir, situated at Jeet
Nagar, Andheri(W) as part of his daily routine. He had sponsored the
renovation of the said temple in the year 1976. Ever since then, he was
visiting the temple twice a day - in the morning at about 10 a.m. and in the
evening at about 6 p.m. On that day, as usual his driver Rooplal(P.W.7) had
driven him to the temple in his Red Opel Car. Ramchandra Lavangare
(P.W.1) the President of the Shiv Temple Management Association had also
attended him as usual. He offered prayers for about 15 minutes, made the
offerings and was returning home. He was proceeding towards his car,
which was parked facing towards Navkiran Road at a distance of just 6 to 7
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feet across the temple. He was followed by his driver P.W. 7 and P.W. 1 as
usual. When they reached the car, the driver had crossed the other side of the
car to take the driver's seat and therefore, P.W. 1 was walking a few steps
behind Gulshan Kumar. When Gulshan Kumar was opening the door of the
car, suddenly a person waiting in ambush, touched his back with a pistol
and fired a battery of bullets in a fraction of a second. Taken by surprise,
Gulshan Kumar turned back only to receive more bullets on his chest. At that
juncture, when he was about to collapse, another assailant rushed towards
him and rained bullets on him. He still struggled to rescue himself and
walked a few paces upto the Gate of Raundal's bungalow and was again
showered with bullets by the third assailant. When his driver tried to help
him to rise, he was also shot on his right thigh. P.W. 1 had laid him on the
rear seat of the car and immediately asked Rajesh Johari (P.W.3) to drive
the car to Cooper Hospital. P.W.1 followed the car in an auto rickshaw. By
the time, the injured reached Cooper Hospital, some person from Jeet Nagar
had given telephonic information to D.N. Nagar Police Station, which
information was received by PSI Rashmi Jadhav(P.W. 10) at 10.35 a.m.
After making station diary entry at Sr. No. 23/97, she rushed to Cooper
hospital with P.I. Rane (P.W.11), PSI Shinde (P.W.13) and a police
constable. There she saw one severely injured man on stretcher, a crowd of
people and P.W. 1 Laxman Lavangare, the only person who could tell her
what exactly happened. P.W. 10 then recorded his statement which is at Exh.
54. As per the directions of PI Rane, she returned to D.N. Nagar Police
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Station and registered Crime No. 572 of 1997 for offences punishable under
section 302, 307 read with section 34 of the Indian Penal Code and section 25
of the Indian Arms Act. The investigation was set in motion.
3 The prosecution examined 45 witnesses to bring home the guilt
of 17 Accused persons. Accused No. 6 and Accused No. 15 were discharged
in April, 2001. To evaluate the evidence adduced by the prosecution, the
witnesses need to be classified in five categories.
i) P.W.1 Ramchandra Lavangare, P.W. 2 Shankar Fukhe, P.W. 3
Rajesh Johari, P.W. 4 Labh Shankar Sharma and P.W. 7 Rooplal Saroj are
eyewitnesses to the incident of shooting as well as the subsequent conduct of
the assailants.
ii) The officers who have conducted the Test Identification Parade
are P.W. 20 Shrikant Kauthankar, P.W. 21 Vinod Ghedia and P.W. 36 Sitaram
Jadhav.
iii) The panchas to the recovery of incriminating articles at the
behest of the Accused persons i.e. P.W. 24 Ashok Shah, P.W. 22 Kishor Goyal
for recovery of passport, P.W. 38 Sanjay Desai, P.W. 6 Arun More for scene
of offence panchanama, P.W. 8 Dhanaji Kadam Panch for recovery of Taxi of
P.W. 4 which was abandoned at Kapaswadi Exh. 73.
iv) Witnesses to the conspiracy to kill Gulshan Kumar are Kishan
Kumar Dua P.W. 32 who happens to be the younger brother of the deceased
and P.W. 37 Arif Lakdawala.
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v) The local police who investigated on 12th and 13th of August,
1997 i.e. P.W. 10 Rashmi Jadhav, P.W. 17 Subhash Salvi and P.W. 45 Arjun
Bagdi of DCB CID Unit.
4 P.W. 1 Ramchandra Lavangare has deposed all these facts
before the Court and has proved the contents of the FIR which was lodged by
him in Cooper Hospital. P.W. 1 has then given a narrative description of the
event to the Court as to how the incident had occurred and the assailants who
had murdered Gulshan Kumar.
5 According to P.W.1 Ramchandra Lavangare, he was well
acquainted with the deceased and his driver P.W.7, Rooplal as the deceased
used to visit the Shiv temple twice every day since 1976. P.W.1 used to make
it a point to remain present at the temple whenever the deceased arrived. On
the unfortunate day also, he was present at the temple, when Gulshan Kumar
visited the temple. After Gulshan Kumar completed his daily rituals, and
offered prayers, the driver of the deceased took the articles from the hands of
the deceased and followed him towards the car. P.W.1 followed them up to
the car, as usual. As soon as the deceased reached the car, the driver had
crossed over to take the driver's seat and therefore, P.W.1 was walking a few
paces behind the deceased. Suddenly an unknown person rushed towards
Gulshan Kumar, placed pistol on his back and fired a volley of bullets in the
body of the victim. P.W.1 has stated that the said assailant had come from the
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eastern side. When the deceased looked back aghast, the bullets were fired in
his chest. P.W.1 had seen the injured trying to go towards Raundal's house,
when the other Accused came from the side of the stall and again fired at the
deceased. P.W.1 was scared and rushed towards the coconut tree, on the
opposite side and saw a third person firing at the deceased. When the driver
intervened to pick up the injured, he was also shot on his leg.
6 P.W.1 Lavangare had requested P.W.3 Rajesh Johari to drive the
car of the deceased and take them to the hospital. He followed the car in an
auto rickshaw. At Cooper Hospital, he saw the deceased on a stretcher. He
saw P.W.10 PI Rashmi Jadhav. Upon inquiry, he informed P.W.10 that the
person on the stretcher was Gulshan Kumar. He further informed her that he
had witnessed the whole incident. He narrated the entire incident to P.W.10
and informed her that he would be able to identify the assailants if shown to
him. His statement was recorded in the proforma under section 154 of Code
of Criminal Procedure and is marked at Exhibit 54. P.W.1 has proved the
contents of FIR. On the same day in the afternoon the police had reached the
scene of offence. The scene of offence panchnama was drawn by P.W.11. It
was P.W.1 who had shown the scene of offence to P.W.11 and P.W.6 Arun
More, had acted as a panch for the scene of offence. The said panchnama is at
Exhibit 62.
7 P.W.1 Lavangare has further testified that he had attended the
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test identification parade which was conducted by P.W.20 Shreekant
Kauthankar at Central Prison Thane on 21st October 1999. PW1 has identified
Accused No.16 at the test identification parade as the assailant i.e the person
who came from the side of auto rickshaw and fired at the deceased. On 2 nd
February 2001 he identified Accused No.19 as the assailant who came from
the side of the stall and fired at the deceased in front of Raundal's house in
the test identification parade conducted by P.W.20. He has also identified
Accused No. 19 on 3rd February 2001 in the test identification parade held by
P.W.21 in Arthur Road prison. The test identification parade conducted by
P.W.36 is challenged on the ground that he was not officiating as a Special
Executive Officer on 2nd February 2001, however the test identification
parade conducted by P.W.21 on 3rd February 2001 cannot be ignored. P.W.1
has further clarified that Accused No. 1 Javed Kaliya is not present before the
Court.
8 P.W.1 was cross-examined at length. P.W.1 was cross-examined
at length about the topography of the place where the incident had occurred,
being oblivious of the fact that he was residing in that area for more than 3
decades and was visiting the temple daily, at least twice a day and would not
have confounded for a moment. As far as he being an eye witness to actual
incident of assault is concerned, his testimony could not be shattered, instead
the facts reiterated and clarified in the cross-examination are as follows :
(a) I could see the first assailant at 3 stages- (i) when he arrived on
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the scene, (ii) when he started firing on the deceased and (iii) when he was
running away from the spot.
(b) The assailants were on left side of the coconut tree when I was
hiding myself behind the tree. I cannot say whether I saw the second and
third assailants from the left side of the tree or from right side. Not correct
to say that I saw them when they were running.
(c) It will be correct to say that the assailant Nos. 2 and 3 fired
shots when the deceased was lying in front of Raundal's house.
(d) It is not correct to say that I had rushed to the same direction
where the shots were being fired by assailant Nos. 2 and 3.
(e) I had identified the Accused Nos. 16 and 19 by their faces and
features.
(f) My hands were stained with blood when I lifted the deceased to
put him in the car.
(g) I followed Opel car.
(h) The deceased was lying on stretcher in casualty department
when I reached hospital. My statement was recorded at about 11.30 to 11.45
p.m.
9 All these contentions of P.W. 1 in the cross-examination would
establish that P.W.1 is an eyewitness to the incident and that his sterling
testimony could not be dislodged in the course of cross-examination. It is
believed that cross-examination is conducted to shatter or discredit the
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testimony of a witness. But, in the present case, the case of the prosecution is
reaffirmed in cross-examination.
10 On 12th August 1997 itself, at about 4.30 pm, when P.W.11
visited the scene of offence, P.W.2 Shankar Fukhe had voluntarily
approached the police and informed them that he is a resident of Jeet Nagar.
On that day, upon hearing the sound of firing, he rushed in the said direction
and saw the deceased lying in a pool of blood in front of Raundal's house and
witnessed two persons shooting at the deceased, although he was injured. He,
therefore raised shouts and saw the two assailants running towards Bharat
Nagar, he had even chased them. He saw the assailants looking backwards,
probably to verify as to whether they were being chased. At that time, their
facial features were clearly noticed, and were imprinted on his mind. On 21 st
October 1999 he identified Accused No. 16 and on 2 nd February 2001, he
identified Accused No 19. The suggestions accepted in his cross-examination
are as follows :
(a) It is correct to say that the assailants had run away towards
Bharat Nagar.
(b) It is correct to say that the assailants were looking behind
occasionally while running away from the spot.
(c) I could identify the Accused because I had seen them.
(d) Accused No. 16 and Accused No. 19 continued to fire shots at
the deceased even after his collapse.
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It is pertinent to note that it has been elicited in the cross-examination as
follows :
(e) "I had stated before the police that I had seen the said person
loitering in the area before 12th August, 1997.
The suggestion at item No."(e)" would establish that the Accused had marked
the said spot for killing the deceased.
11 P.W.3 Rajesh Johari, was a rickshaw driver, holding the licence
for driving light motor vehicle and heavy motor vehicle. He is also a resident
of four Bungalows area in Bharat Nagar area. That on 12 th August 1997, upon
hearing the noise like bursting of crackers, he rushed towards Jeet Nagar and
saw people running helter skelter as they were scared. He saw one person
brandishing his black pistol and trying to flee. The said person was at a
distance of 10 feet away from him. He started chasing the said person, but
when the said person realised that he was being chased, he threatened P.W. 3
with his pistol thereby restraining him from chasing. He had even picked up
something that he had dropped and then both the miscreants escaped towards
Versova link road and then he saw them leaving in a taxi.
12 P.W.4 Labh Shankar Sharma is not an eyewitness to the incident
of shooting, but for the subsequent conduct of the assailants. He happens to
be a taxi driver, plying Taxi bearing No MHO-891 from 9 a.m to 10 p.m. On
12th August 1997, the passenger who hired him, halted before the Dominic
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Garage at Versova Link Road. At that juncture, two persons holding pistol
had pulled him out of his taxi by holding his hair. The lady passenger got
scared and alighted from the taxi. The said two persons terrorised him by
pointing the pistol towards him and fled towards Juhu with his Taxi.
According to him, he could identify Accused No. 19 as the person who pulled
him out of the taxi. The facial features of Accused No. 19 were imprinted in
his mind and therefore, he identified Accused No. 19 in the test identification
parade on 2nd February, 2001.
13 When P.W.4 called the police on 100 number from a shop
nearby, he was directed to come to D. N. Nagar Police Station. While he was
narrating the incident to the police, the police received telephonic
information that a taxi was abandoned near Kapaswadi, which is half a
kilometer from D. N. Nagar police station. PW4 accompanied the police and
identified the Taxi, which was seen at Kapaswadi. P.W. 4 had given the
description of the person who had hijacked the Taxi.
14 The last eyewitness to the whole episode is P.W.7 Rooplal
Saroj, who happens to be the driver of the deceased since 1983. He
used to accompany the deceased whenever he visited Shiv Mandir at
Jeet Nagar. The temple was about 10 minutes drive from the residence
of the deceased. Since he was visiting everyday, he was well-
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acquainted with P.W. 1, who used to remain present at the temple
whenever the deceased visited the said temple. P.W. 7 is an injured
witness. The cell phone of the deceased was with P.W. 7 as the
deceased never used to carry the same inside the temple. He had
parked the car near Dhoopchav Society. When the deceased came out
of the temple after offering prayers, P.W.7 had taken the articles from
the deceased. The articles included fruits, 'Bel Leaves' and the canister.
He followed the deceased towards the car and P.W. 1 followed him.
He has further narrated the incident by stating that when the deceased
was about to reach the car, he was suddenly accosted by an unknown
person who came from behind, placed the pistol on his back and fired
shots and as soon as the deceased turned around, the said assailant
again shot him on his chest. Thereafter, the deceased tried to rescue
himself by proceeding ahead. Soon thereafter, another person came
from the side of the stall, rushed towards the deceased and fired on
him, only to be followed by one more assailant, who came by the side
of the auto-rickshaw and who also fired at the deceased. When the
deceased collapsed in front of Raundal's house, P.W. 7 rushed towards
him to pull him away from the spot, but he was also shot at. P.W.7
received a bullet injury on his right thigh and saw two of the assailants
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running towards Shiv Temple. He has further stated that P.W. 1 called
a person to drive the car, to take them to the hospital. His statement
was recorded while he was in the ICU. Before the Court, he had
identified the Accused No. 19 as the person who had shot at him,
which would establish that Accused No. 19 was the last person, who
had shot at the deceased and P.W. 7.
15 It is stated in cross-examination by P.W.7 that he could
clearly see the face of the assailants when they were shooting the
deceased. According to him, the assailants were firing from a distance
of about three to four feet. It is further clarified that when he was
pulling away the deceased from the spot, only Accused No. 19 was in
front of him and he had shot at him. He had seen the Accused from a
very close distance and identified Accused No. 19 at the test
identification parade on 3rd March 2001. The said identification
parade was conducted by P.W. 21 Vinod Ghedia, who was acting as a
Special Executive Officer at Arthur Road Prison. P.W.21 was appointed
as Special Executive Officer in 1996. He has proved the panchnama of
the Test Identification Parade which is marked at Exh. 26.
16 Accused No. 4 Imtiaz Daud Merchant happens to be
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the brother of Accused No. 16 and 19. Accused No. 4 was arrested on
31/8/1997. Accused No. 4, Accused No. 16 and Accused No. 19 are
the sons of Accused No. 17 from whom two imported pistols were
recovered. Accused No. 16 was arrested on 27th September 1999.
PW45 Mr. Bagdi the investigating officer has admitted in the cross-
examination that Accused No. 16 was in the custody of Barabanki
Police Station, UP when he was arrested in this case. On 6th October
1999, a passport was recovered at the behest of Accused No. 16. The
said passport was forged and fabricated in the name of Shabbir. The
recovery was caused from the house of Shehenaz, who happens to be
the sister of Accused No. 16. She was residing at Wippo complex. The
statement of Shehenaz is not recorded although her three brothers and
mother were Accused in this case. P.W.20 Mr. Goyal has acted as a
panch for the said recovery and has testified to that effect. The
panchnama is at Exh. 28. On 21st October 1999 Accused No. 16 was
identified by P.W.1 and others. The recovery of the pistol and live
cartridges at the instance of Accused No.16 from the house of
Lakshmibai situated at Devipada, on 11th October 1999, is proved by
P.W. 24 Ashok Shah who has acted as a panch. Lakshmibai happens to
be the maternal aunt of Accused Nos. 4, 16 and 19 and the sister of
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Accused No. 17.
17 Dr. Y. A. Chaudhary P.W. 14 examined the deceased and
found that 18 bullets were shot on various parts of his body. The
medico legal certificate is at Exh. 102. The autopsy on the dead body
of the deceased was performed by Dr. Umesh Patil P.W.25. The post-
mortem notes are at Exh.138. P.W.7 was also examined by P.W. 14 and
his medico legal certificate is at Exh. 161. The certificate would show
that P.W. 7 had sustained a bullet injury at the beginning of right thigh
and a contused lacerated wound on right upper gluteal region.
18 It is pertinent to note that the evidence of P.W.14 would
show that he had also examined one Madhukar Govankar at about
11.05 a.m on that day and had found one bullet injury on left mid
scrotum with blood clots. The identity of Madhukar Gavankar was not
established by the prosecution. His medical certificate is at Exh 162. It
is seen from the evidence of PW17 Subhash Salvi, the Assistant
Commissioner of Police, CID that, on 12thAugust 1997 he was informed
by API Desai that besides Gulshan Kumar, three to four other persons
have also been injured in the said incident. Unfortunately, there
appears to be no further investigation in regard to the said
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information.
19 The scene of offence panchnama was conducted on 12th
August 1997 by PI Rane P.W.11. P.W.6 Arun More has acted as a panch
for the scene of offence panchnama, which is at Exh 62. The recitals of
Exh. 62 would show that there are blood spots, a pair of blood stained
chappal and 12 empty cartridges in front of the Gate of Dhoopchau
Society. A piece of lead was found in the house of D'Souza, which is 11
to 12 feet from the place where the car was parked. There was a hole
to the outer wall of the said house and the adjoining house of Mr.
Raundal. Raundal's house is situated just opposite the three stalls
adjoining the compound wall of Simple Apartment. Blood stains and a
lead piece were found in the sewer (Mori) which is outside the house
of Raundal. Four empty cartridges were also found outside Raundal's
house. Two empty cartridges were seized from the front of Simple
Apartment and two magzines were found. A piece of lead was also
found at a close distance near Shiv Temple.
20 On 22nd February 2001 the map of the scene of offence
was drawn by P.W.5 Ramesh Mahimkar, who had retired as a draftsman
from the Public Work Department. The scene of offence was shown by
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P.W.5 Ramesh Mahimkar and P.W. 45 Mr. Bagdi and the same is
exhibited at Exh. 5. The map is in consonance with the scene of
offence panchanama and corroborates the narration of eyewitnesses.
21 After attempting to establish the identity of the assailants,
the investigating agency carried out further investigation to determine
the motive on the part of the Accused to eliminate the deceased. In
the said process, it transpired that there was a larger conspiracy to
eliminate deceased Gulshan Kumar and that the assailants were hired
killers. The investigation revealed that there was a conspiracy and to
establish the same, the prosecution examined the following witnesses.
22 P.W.32 Kishan Kumar Dua is the younger brother of the
deceased. According to him on 12 th August 1997 at about 10.30 a.m.
Bhushan Kumar, the son of the deceased rushed to his house and
informed him that he had learnt from Rooplal(P.W.7) that his father has
been shot by some persons and that they had taken him to Cooper
Hospital. P.W. 32 rushed to the Cooper Hospital and saw Rooplal
crying and was informed that his brother Gulshan Kumar was dead. He
was informed by P.W.3 that he has seen three assailants while shooting
the deceased and that he had brought the deceased to the hospital. On
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hearing this, P.W. 32 had become unconscious.
23 P.W. 32 was one of the directors of Super Cassettes
Industries. He was acquainted with music director Nadeem Saifee as
he used to visit their office in his presence. That in the year 1996
Nadeem had produced an Audio Album by name "Hi Ajnabi" and was
insisting the deceased to purchase the audio rights, however, the
deceased was reluctant to oblige. Towards the end of the year 1996,
Nadeem had visited the office of the deceased several time in the
presence of P.W.32. However, the deceased was not interested. The
deceased had informed P.W.32 that since Nadeem was not a good
singer, he had turned down the proposal to purchase the audio rights.
However, later, for reasons unknown to P.W. 32, the deceased had
purchased the audio rights and picturised a song for the promotion of
the said Album. The Album was released in the month of March 1997
but was a big failure. Being annoyed by the failure of the sale of Album
in the market, Nadeem had confronted the deceased, blamed him for
the failure, as he was of the opinion that the deceased had not given
due publicity to his album, and had threatened him with dire
consequences. On 5th August 1997 P.W. 32 saw his brother in a
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frightened condition and upon inquiry, had disclosed that he had
received threatening call from Abu Salem. The deceased refused to
inform the police as Abu Salem was a dangerous man and would not
take police intervention lightly. On 9th August 1997 in the presence of
P.W.32 the deceased had received a call on his cell phone. He addressed
the caller as Salim Bhai and explained that he could not be blamed for
the failure of "Hi Ajnabi" in the market since he had given due
publicity. He had also clarified that the voice of Nadeem was not good.
He was speaking to the caller in a frightened voice, but candidly asked
him as to why his life should be endangered at the hands of the caller
for the sake of Nadeem. Thereafter, he was informed by the deceased
that it was a clear threat to kill. The deceased had also told the caller
that he would leave his destiny to Lord Shiva. The cell phone number
of deceased was 9820048896. P.W. 7 has disclosed that the cell phone
of the deceased was with him at the time of incident.
24 Another important witness on the point of conspiracy is
P.W. 37 Arif Lakdawala, who was acquainted with Abu Salem since
1991 and had met him in Dubai in 1996. He was also acquainted with
Accused Keki Balsara who had expired before trial had commenced, in
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the toilet of the office of Commissioner of Police. P.W.37 had
accompanied Keki to Juhu to collect Rs. Twenty-Five Lakhs from
Nadeem and Accused Ramesh Taurani on the instruction of Abu Salem.
Ramesh Taurani was introduced to P.W. 37 as the owner of Tips
Industries. P.W.-37 had also received a box from Nadeem and had
placed the same in the rear seat of the car. Nadeem had made a phone
call to a person and told him that the money was already handed over
and Gulshan should be dealt with immediately. In the words of P.W.37,
"Paisa to de diya hai Gulshanka kaam jaldi niptaa do". P.W.37 claims to
have conversed with the caller and he identified the voice of the caller,
to be that of Abu Salem. Accused No. 11 Ramesh Taurani (Acquitted
accused) is identified by P.W. 37 before the Court, as the person, who
had accompanied Nadeem, and that he was talking on the cell phone.
25 P.W.37 has also given the telephone number of Abu Salem
as 6260786. P.W.37 had actually seen Keki Balsara talking to three
persons in K. D. Compound. On the instructions of Keki Balsara, two
boxes kept in the rear seat of the car were taken by two persons before
they left K.D. Compound. P.W. 37 has identified Accused Nos. 7,8, and
9 as the persons who had met them in K.D. compound.
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26 The cross-examination of P.W.37 would show that he had
clarified that, he was a witness to transfer of the money from Nadeem
and Taurani to the deceased Keki Balsara and further transferred to
three persons at Nagpada. His admission that he had spoken to Abu
Salem on his Cell phone would show that he was aware of the
involvement of Abu Salem, Nadeem, Keki Balsara and Taurani in the
alleged Murder of Gulshan Kumar.
27 After recording of the evidence of P.W.37 was completed, an
application was filed on behalf of Accused Nos. 8, 9 and 10 under
section 319 of Criminal Procedure Code to arraign P.W.37 as an
Accused in the present case. The said application was filed on 25 th
September 2001. The said application is at Exh.186. The said
application was rejected on 26th September 2001 on the ground that
the evidence given by P.W.37 is protected by proviso to Section 132 of
the Indian Evidence Act.
28 P.W.40 Sunil Mehta working as Associate Vice President of
Hutchison Max Telcom was examined by the prosecution. He has
identified the signature of Rajit Barthakur and Seema Dubey, who were
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working in the company in the year 1997, but had subsequently settled
abroad. P.W. 40 was called upon to prove the signature of Seema Dubey
and Bharthakur on Exhibit 201. The contents of Exh. 201 are as
follows 'As desired by you in the pursuit of your inquiry we here by
confirm that cell phone No. 9820045423 is in the name of Mr. Ramesh
Taurani, Tips Industry Pvt. Ltd. was used on 27 th June 1997 at 16.04
hours at cell Id 10031803 which covers the Juhu area. The caller made
an international call to 971506260786.' The same contention is further
corroborated by P.W.41 Debojeet Datta, the Chief General Manager of
Videsh Sanchar Nigam. He had given thirteen printouts in response to
the letter which is at Exhibit 203 which corroborates that international
calls were received and made from cell phone No. 971506260786.
Videsh Sanchar Nigam has also confirmed that the phone call was
made from Juhu and the printouts given would further corroborate the
same. P.W.43 Mr. P. K. Rahul has also substantiated the same.
29 P.W.45 Arjun Bagadi was attached to Unit VII of DCB CID
on 13th August, 1997. The investigation of Crime No. 572 of 1997 was
entrusted to him. The papers were handed over to him by D.N. Nagar
Police station. He had recorded the statement of P.W. 31 the approver.
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The statement is at Exh. 156A. There was recovery of one imported
pistol, five live cartridges and a Magazine from P.W. 31. Pursuant to the
statement made by the approver, the Accused Nos. 1 and 4 were
arrested on 31/8/1997. The Accused Nos. 16 and 19 were arrested by
P.W.45. Accused No. 17 was also arrested along with Accused No. 16
on 31/8/1999. Two revolvers were recovered at the behest of Accused
No. 17, who stands acquitted.
30 According to P.W.45, a pistol and live cartridges and one
Maxine were seized at the behest of Accused No. 16. P.W.45 had also
filed an application seeking grant of sanction to prosecute the Accused
for the offence punishable under section 25(1B) (a) read with section
3 of the Arms Act. Sanction was granted by the Deputy Commissioner
of Police to prosecute the Accused under the Arms Act and the said
sanction order is at Exh. 199. After completion of investigation, P.W.
45 had filed the charge-sheet.
31 It is admitted that he had not conducted any investigation
in respect of the telephone number on which calls were made to Dubai
except recording the statement of Arif Lakadawala, although he was
aware that detection of the telephone number of Abu Salem was an
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important fact for the purpose of investigation in this case. It is
admitted that it had transpired in the course of investigation that
international calls were made from a PCO at Bandra. That there was
material to show that the PCO belonged to one Faiyaz as per the
papers of investigation. He had taken printouts of the cell phone
numbers of Keki Balsara, but had made no attempts to collect the
evidence about the identity of the subscriber of the telephone No.
6260786. That he had not subjected Accused No. 11 for test
identification parade from P.W. 37.
32 The learned counsel for the Appellant has submitted that it
was not possible for P.W. 1 to have seen the incident since he had
rescued himself when he saw the incident of shooting and had stood
behind a coconut tree. According to the learned Counsel, therefore,
the process of identification was of no avail and his evidence cannot be
relied upon since he could not have seen anything from behind the
coconut tree. He has submitted vehemently that P.W. 1 has identified
Accused No. 16 almost after 2 years i.e. in the year 1999 whereas he
identified Accused No. 19 after 4 years of the incident. And therefore,
no implicit reliance can be placed upon the identification of both the
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Accused at the time of test identification parade. According to him,
after four years the memory must have faded. As far as P.W. 7 is
concerned, it is stated that since he was shot, when he was trying to lift
the deceased, he could not have seen the Accused while they were
shooting. It is further submitted that the Accused No. 19 has been
falsely implicated and hence, he deserves to be acquitted.
33 The evidence of P.W. 2 has also been challenged on the
ground that since he was chasing the accused, he could not have seen
their faces. As far as P.W. 3 is concerned, according to the learned
Counsel, he appears to be a got-up witness. Similarly, the evidence of
the other eyewitnesses is challenged on the ground that they are all got
up witnesses and even according to the prosecution, the Accused No.
16 was transferred from an offence registered at Barabanki Police
station, U.P., whereas Accused No. 19 was arrested on suspicion.
Hence, it is submitted that the Accused No. 16 has been rightly
acquitted and that Accused No. 19 deserves to be acquitted in the
present case. Learned APP has submitted that there is an appeal
challenging the acquittal of Accused No. 16, and that the prosecution
has established the case against the Accused No. 19 beyond reasonable
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doubt.
34 Upon evaluation of the evidence of the eyewitnesses such
as P.W. 1, 2, 3, 4 and 7, the Special Executive Officers i.e. P.W. 20 and
21, it is well established that the evidence of the eyewitnesses is a
sterling testimony which could not be shattered despite lengthy cross-
examination. The statement of P.W. 1 was recorded by P.W. 10 within
half an hour of the alleged incident and P.W. 1 had disclosed to P.W.10
immediately the entire episode of how the deceased was shot dead
right in front of his eyes by 3 persons. P.W. 10 Rashmi Jadhav was the
first police personnel to reach Cooper Hospital. P.W.1 has reiterated
repeatedly and consistently that he had actually seen Accused Nos. 16
and 19 firing at the deceased as well as Rooplal at the spot and also
when they were fleeing from the spot. There is no delay in disclosing
the incident. In fact, the FIR is registered on the basis of the statement
of P.W. 1. The first assailant had fled soon after shooting the deceased
in his back and chest. Thereafter, when the deceased proceeded
towards Raundal's house, at that time, he was shot by 2 persons.
35 P.W.2 Sahebrao Fukhe had chased the Accused when they
were running towards Bharat Nagar. He saw them looking backwards
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and therefore, he could clearly notice their facial features which were
imprinted in his mind forever. At this stage, it is pertinent to note that
the Bharat Nagar Gate is adjacent to the compound wall of Shiv
Temple, which was last visited by the deceased. Moreover, there is a
clear assertion by PW.2 that he had stated before the police that he had
seen the said person loitering in the area before 12 th August 1997. The
said contention has not only gone unchallenged by the defence, but is
elicited in the cross-examination.
36 P.W. 3 Rajesh Johari had also chased the Accused and had
identified Accused No. 19 as the person who had brandished pistol
towards him, while he was chasing to deter him from escaping any
further. Hence, he returned to the temple where he was requested by
P.W. 1 to drive the car of the deceased and take the injured to Cooper
Hospital.
37 P.W. 4 Labhshankar Sharma, the taxi driver is not an
eyewitness to the incident, but he was forced out of his taxi by the
Accused by terrorising him with a pistol. According to him, it was
none other than the Accused No. 19 who had pulled him out of the
taxi. And therefore, he could identify the Accused No. 19 on 2 nd
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February, 2001. In any case, he had given the description of the person
who had hijacked his taxi.
38 P.W. 7 Rooplal is the driver of the deceased. He had
accompanied the deceased to the temple. He had identified the
Accused No. 19 as the person who had shot at him. He had seen the
assailants firing at the deceased from a distance of 4 to 5 feet. He had
seen the Accused from a very close distance and therefore, could
identify him in the test identification parade on 3rd March, 2001. The
presence of all the prosecution witnesses on the spot at the time of
incident was natural. They were residents of the said area. The
challenge to the test identification parade is mainly on the ground of
delay in conducting the same.
39 The Supreme Court in the case of Brij Mohan and ors.
v/s. State of Rajasthan1 has held as follows :
"So far, the present case is concerned, as the appellants were put
on test identification within 24 hours of their arrest in connection
with the present case, the identification made by the witnesses
cannot be rejected merely on the ground that it was not possible
for them to identify after lapse of a period of three months. This
1 AIR 1994 SC 759
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was not ordinary case of dacoity; for commission therefore, four
persons were killed, one of them being a lady. The gruesome and
callous manner, in which the dacoity was committed by the
culprits must have left a deep impression on the mind of the
witnesses, who had occasion to see such culprits in the electric
light during the course of commission of assault, firing and
removal of the articles from the house in question. This deep
impression will also include the facial impression of the culprits,
which in normal course must not have been erased only within a
period of three months."
40 In the present case, the incident had occurred in broad
daylight in the presence of P.W. 1 and PW. 7 and they could not have
forgotten such a horrendous incident which had occurred right in front
of them. The entire incident was permanently imprinted in their mind
and therefore, this cannot be said to be a case of mistaken identity.
Said witnesses had no reason to falsely implicate the Accused in the
present case. In any case there is material to indicate that the Accused
had absconded and could be arrested only after they were arrested in
another State in another crime.
41 The act of the Accused is further corroborated by recovery
of pistol and live cartridges at the instance of the Accused No. 16. This
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is not a case of a sole eyewitness. There were five eyewitnesses. Each
one had emphasised the role of Accused Nos. 16 and 19 at different
stages. The attack mounted upon the deceased was so graphically
explained that unless they had seen the incident, they could not have
been consistent in the cross-examination also. In the factual discussion
of the case, this Court has emphasised on the cross-examination. The
simple reason being that the credibility of a witness must be examined,
and his evidence must be appreciated by referring to his evidence
individually and ascertaining as to how he has fared in the cross-
examination and what impression is created by his substantive
evidence taken in the context of the case and not upon surmises and
conjecture. The evidence of P.W. 1 is consistent with the evidence of
P.W. 7 as well as P.W. 3 who had driven the Opel car of the deceased to
Cooper Hospital, at the request of P.W. 1.
42 That PW.11 the Investigating Officer has specifically stated
that P.W. 2 had voluntarily informed him at about 3 p.m. on the spot
that he had seen 3 persons shooting at the deceased. P.W. 2 has also
identified both the Accused in the test identification parade. The fact
that 18 bullets were retrieved from the body of the deceased, coupled
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with the fact that the empty cartridges were found on the scene of
offence, would clearly establish that there was more than one person
who had shot at the deceased and that they had arrived at the scene of
offence from 3 different directions.
43 At this stage, the evidence of the eyewitnesses needs to be
appreciated in view of the local inspection notes drawn by the Sessions
Judge himself. The Sessions Judge had visited the scene of offence on
5th November 2001 along with the special prosecutor and the defence
lawyer. The local inspection notes by Session Judge are at Exh. 210.
The recitals of Exh. 210 would show that the distance between
compound of the temple and the corridor of the houses in front of the
temple is about 16 ft. There is a coconut tree near Avishkar Kreeda
Mandal near the compound wall of Simple Apartment and there are
four stalls near the compound wall. Dhoopchhav Society is situated
opposite Simple Apartment. The width of road goes on increasing and
it is about 40 ft. in between Dhoopchav and Simple Apartment.
Raundal's house is situated at about 50 ft. away from coconut tree and
is on the opposite side of the tree. It further shows that the house of
Raundal is visible from the coconut tree. The stalls and coconut tree
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are in the same row and they are in front of Raundal house. The
complete compound wall of Dhoopchhav Housing Society is visible
from Kamgar Nagar Gate. Bharat Nagar Gate is adjoining compound
of the Shiv temple. Kamgar Nagar Gate is on north side whereas
Bharat Nagar Gate is on south side. Dhoopchhav Society is on east
side and Simple Apartment is on the west side.
44 The challenge of the learned counsel for the appellant that
the act of shooting could not have been noticed by P.W. 1 from behind
the coconut tree is dislodged by the local inspection notes at Exh. 210
and supported by ocular evidence on record.
45 The Accused No. 19 had criminal antecedents. The Court
cannot be oblivious of the fact that the evidence of the doctor who had
examined the injury on the deceased as well as the injuries of P.W. 7 is
in conformity with the evidence of the eyewitnesses and would clearly
establish that the bullets were first shot on the back and when the
deceased turned towards the assailants, he was shot on his chest. The
battery of bullets was then shot on the deceased from two different
directions and all the injuries are mentioned in the autopsy notes.
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46 There is no delay in recording the statement of the
eyewitnesses and the disclosures were voluntarily made by the
witnesses. The incident was also of such a nature that the face of the
assailants could not have effaced from the memory of the
eyewitnesses, particularly, P.W. 1, who was acquainted with the
deceased for 20 years.
47 The learned Counsel has further demonstrated lacunas in
the investigation to show that there is no evidence to show that
Accused No. 19 was a part of any conspiracy to eliminate the deceased.
The evidence of PW 37, Arif Lakadawala needs to be appreciated at
this stage. It is the specific case of P.W. 37 that Nadeem and Keki
Balsara had hired people to eliminate Gulshan Kumar. He was a
witness to the dialogue between Nadeem, acquitted Accused Taurani
and Abu Salem. It is his specific case that when he spoke to "Caller"
of Taurani he had identified it to be that of Abu Salem with whom he
was acquainted since 1991, and he had met him in Dubai in 1996.
Therefore, it would not be necessary to delve into the issue as to
whether the Accused had any personal animosity against the deceased
or whether they were on inimical terms with the deceased.
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48 The fact that Accused No. 19 could be one of the hired
persons for eliminating the deceased also needs to be examined by
appreciating his conduct before the incident, at the time of incident,
soon after the incident and thereafter. There is evidence to show that
Accused No. 19 had travelled to Dubai six months prior to the incident.
A forged passport was recovered at the instance of his brother Accused
No. 16 from the house of his sister Shehenaz. That P.W 4 Labhshankar
Sharma had identified him as the person who had brandished a pistol
at him, terrorised him, dragged him out of the taxi and hijacked his
taxi, which was later found abandoned at Juhu Link Road. The fact
that his evidence is consistent with P.W. 2 and 4 would show that he is
one of the assailants of the deceased Gulshan Kumar. It also needs to
be taken into consideration that soon after the incident he was
absconding. There were serious offences registered against him at
Calcutta as well as Thane and transferred in Crime No. 157 of 1997
only after four years. He had criminal antecedents. On 15/4/2009
the Accused No. 19 was released on furlough leave. He absconded and
overstayed for 2750. He was arrested on 9/11/2016 and brought back
to the jail. Therefore, offence vide C.R. No. 254 of 2013 under section
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224 of the Indian Penal Code was registered at Mumbra Police Station,
Dist. Thane against him.
49 According to the learned Counsel for the Appellant, P.W. 33
the ballistic expert examined the pistol at Article 74, which was
recovered at the instance of the absconding Accused No. 1. He has
also examined Article 35 and Article 37B, 37A and Article 26A. He has
deposed that he had failed to record the number of similarities and
dissimilarities in respect of striations found on the land grooved
impression, the similarities and dissimilarities in firing pin impressions
and breach face marks and therefore, his evidence cannot be relied
upon. However, the said material needs no discussion as one pistol
was recovered at the instance of Accused No. 16, one was recovered
from P.W. 31 and two pistols were recovered from Accused No. 17 i.e.
the mother of Accused Nos. 16 and 19.
50 Implicit reliance can be placed on Dhanaj Singh @ Shera &
ors. vs. State of Punjab2, wherein it has been observed that :
"5. In the case of a defective investigation the Court has to be
circumspect in evaluating the evidence. But it would not be right
in acquitting an accused person solely on account of the defect;
2 2004(2) SCR 938
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to do so would tantamount to playing into the hands of the
investigating officer if the investigation is designedly defective."
"The contaminated conduct of officials should not stand on the
way of evaluating the evidence by the courts; otherwise the
designed mischief would be perpetuated and justice would be
denied to the complainant party."
51 The learned Counsel for the Appellant has placed reliance
upon several judgments of the Supreme Court to emphasize that the
prosecution has not proved the case beyond reasonable doubt which
are as under :
1. Somasundram @ Somu Vs. State represented by the
Deputy Commissioner of Police, (2020) 7 SCC 722.
2. Suresh Chandra Bahri vs. State of Bihar, 1995 SCC (Cri.)
60.
3. Rampal Pithwa Rahidas & ors. vs. State of Maharashtra
1994 SCC (Cri.) 851.
4. Sarwan Singh vs. State of Punjab, AIR 1957 SC 637.
5. Ghurey Lal vs. State of Uttar Pradesh, (2008) 10 SCC 450.
6. Anwar Ali & Anr. vs. State of Himachal Pradesh, Criminal
Appeal No. 1121 of 2016.
However, the facts in the said cases are not relevant in the present
case.
In the case of Rampal Pitwa Rahidas(Cited supra) refers to
the evidence of an approver. As far as test identification parade is
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concerned, in the said case it was the specific case of the prosecution
that the Accused persons were wearing mask at the time of incident
and therefore, there was only identification in the Court.
In the case of Somsundram @ Soma(cited supra), the
victim was abducted, kept in illegal confinement and then his murder
was reported. The Supreme Court had held that where abduction is
followed by illegal confinement and still later by death, the inference
becomes overwhelming that the victim died at the hands of those who
abducted/confined him. As far as the conspiracy is concerned, the
Supreme Court had held that there need not be meeting of minds
between all the persons involved in a conspiracy and it is sufficient if a
person is engaged in the conspiracy following which the offence is
committed. This means that it is not even necessary that the persons
who are engaged in the conspiracy, to even know the identity, leave
alone physically meet the other players. And in the said case, the
evidence of the accomplice was under consideration.
52 In the present case, when the accomplice was declared
hostile, an application was filed by the prosecution to discharge P.W.
31. The said application was rejected by the Sessions Court. Said
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order was challenged before the High Court by filing Criminal
Application No. 4140 of 2001 and was allowed to be withdrawn at the
admission stage on 13/1/2003. The trial Court had given a final
verdict in this case on 29th April, 2002 and probably, therefore,
Criminal Application was withdrawn.
53 The learned Counsel for the Appellant has highlighted the
lacunas in the investigation and the delay in conducting test
identification parade. As far as the test identification parade is
concerned it was conducted within one month. The investigating
agency could reach the Accused No. 19 on the basis of the
interrogation of Accused Nos. 16 and 17 as well as accused No. 4. In
fact, there is material to indicate that the Accused No. 19 was present
in Dubai, when the conspiracy was hatched. He had also executed the
conspiracy in action with the help of Accused Nos. 1 and 16.
54 At this stage, It would be appropriate to refer to the
Judgment of the Supreme Court in the case of Chandraprakash v/s.
State of Rajasthan3. The Apex Court has observed thus :
"31 The next issue, to which we should advert to, pertains to
3 2014 Cr. L.J. 2884
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the delay in holding the test identification parade. The
submission of Mr. Balaji Srinivasan, learned counsel appearing
for accused Abdul Hamid and Raies Beg, is that there has been
enormous delay in conducting the test identification parade in
respect of accused Abdul Hamid and Raies Beg. There is no
dispute that both of them were arrested on 8.6.1997 and the test
identification parade was held on 25.6.1997. Thus, it is evident
that they were arrested long after the occurrence but the test
identification parade was held within a period of three weeks
from the date of arrest. As the analysis of the trial court shows,
they could not have been arrested as the materials could not be
collected against them and things got changed at a later stage. In
this regard, we may refer with profit to the decision in
Ramanand Ramnath v. State of M.P.[4], wherein identification
parade was held within a period of one month from the date of
arrest. This Court observed that there was no unusual delay in
holding the test identification parade.
34. In view of the aforesaid, the submission that there has been
delay in holding the test identification parade does not really
affect the case of the prosecution. It is also noteworthy that the
witnesses had identified the accused persons in court and
nothing has been elicited in the cross-examination even to create
a doubt. Thus, we discard the submission advanced by the
learned counsel for accused Abdul Hamid and Raies Beg."
55 In fact, the eyewitnesses could not have faulted about the
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identity of the persons who had killed the deceased in broad daylight.
It was indeed a cold blooded murder. It also needs to be appreciated
that the eyewitnesses have categorically stated that the Accused No. 1
who had shot in the first instance was not present in the Court. They
had not mistaken any other person to be Accused No. 1. This by itself
would show that they were sure that it could be none other than the
Accused Nos. 16 and 19 who had committed the ghastly act on 12 th
August, 1997 and killed Gulshan Kumar. It is a case of direct evidence.
In the present case, we need to appreciate the conduct of the
eyewitnesses who had not just claimed that they are witnesses but
without showing any apathy had promptly helped the deceased and
the driver by taking them to the hospital, reporting the matter to the
police and did not hesitate to stand true to the test of scrutiny. In fact,
P.W. 2 and 3 had actually tried to accost the miscreants immediately.
There was no delay in recording their statement and in fact, the
statements of all eyewitnesses were recorded by D.N. Nagar Police
Station on 12/8/1997 and 13/8/1997 itself.
56 We have no doubt whatsoever that the prosecution has
proved that the appellant has caused homicidal death of deceased
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Gulshan Kumar by firing and causing bullet injuries to P.W. 7, beyond
reasonable doubt. Having regard to the sterling testimony of the
eyewitnesses, coupled with the corroborating circumstances that have
come on record, we are convinced that the Accused has committed an
offence punishable under section 302, 307 read with Section 34 of the
Indian Penal Code read with 27 of the Indian Arms Act. Accordingly,
the Judgment of the Sessions Court insofar as conviction of Accused
No. 19 under section 302, 307 read with section 34 of the Indian
Penal Code read with section 27 of the Indian Arms Act is justifiable
and warrants no interference.
57 The Appellant-Accused No. 19 had no personal animosity
or grudge against the deceased Gulshan Kumar. He had committed the
ghastly act as he was hired by Nadeem Saifee and Abu Salem who
wanted to satisfy their personal vendetta against the deceased.
Therefore, Appellant/the Accused No. 19 also deserves to be convicted
for the offence punishable under section 120B of the Indian Penal
Code. It is pertinent to note that in the present case, Nadeem Saifee
and Abu Salem as well as one Kayyum @ Chacha have been shown as
an absconding accused. Hence, the trial could not proceed against
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them.
58 The appellant is also convicted for the offence punishable
under section 392 and 397 of the Indian Penal Code. Due to lack of
material on record to prove the charge under section 392 and 397 of
the Indian Penal Code, the appellant deserves to be acquitted of the
charge under section 392 and 397 of the Indian Penal Code.
59 It is a matter of record that the appellant had
absconded soon after the incident i.e. 12th August, 1997 and could be
arrested only in 2001. The appellant was enlarged on furlough on
15/4/2009 and he had not surrendered within the stipulated time. He
was arrested on 9/11/2016. The appellant has criminal antecedents,
and he continued in the similar criminal activities thereafter also.
Hence, in the interest of justice and society at large the appellant does
not deserve any leniency. Hence, the appellant shall not be entitled to
any remissions whatsoever.
60 In view of evidence discussed hereinabove, the appeal
deserves to be partly allowed.
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61 Hence following order is passed :
ORDER
(i) The Criminal Appeal No. 878 of 2002 is partly allowed.
(ii) The conviction and sentence passed against the Appellant-
Mohd. Rauf Dawood Merchant under section 302, 307 read with
section 34 of the Indian Penal Code read with section 27 of the Indian
Arms Act vide Judgment and Order dated 29 th April, 2002 by the
Additional Sessions Judge, Gr. Mumbai in Sessions Case Nos. 15/1998
a/w. 448/1998 a/w. 1473/1998 a/w. 18/2000 a/w. 365/2001 is
hereby upheld. The Appellant is also convicted for the offence
punishable under 120B of the Indian Penal Code. No separate
sentence is required for the same.
(iii) The conviction and sentence passed against the Appellant-
Mohd. Rauf Dawood Merchant under section 392 and 397 of the
Indian Penal Code vide Judgment and Order dated 29th April, 2002 by
the Additional Sessions Judge, Gr. Mumbai in Sessions Case Nos.
15/1998 a/w. 448/1998 a/w. 1473/1998 a/w. 18/2000 a/w.
365/2001 is hereby quashed and set aside. The Appellant is acquitted
of the said charge.
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(iv) The Appellant shall not be entitled to remissions, if any.
(v) The Criminal Appeal is disposed of accordingly.
(N.R. BORKAR, J) (SMT. SADHANA S. JADHAV, J)
--------------
CRIMINAL APPEAL NO. 1006 OF 2002
1 The State of Maharashtra being aggrieved by the acquittal
of the Respondent Nos. 1 and 2 vide Judgment and Order dated 29th
April, 2002 passed by the Additional Sessions Judge, Gr. Mumbai in
Sessions Case Nos. 15/1998 a/w. 448/1998 a/w. 1473/1998 a/w.
18/2000 a/w. 365/2001 has preferred this appeal.
2 The facts of the case are the same as considered in
Criminal Appeal No. 878 of 2002. The evidence of the witnesses has
also been discussed in Criminal Appeal No. 878 of 2002. What falls for
determination in the present Appeal is as to whether the acquittal of
the original Accused No. 11 Ramesh Sadhuram Taurani and Accused
No. 16 Abdul Rashid Dawood Merchant is justified.
3 The case of the prosecution as against Respondent No. 1
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Ramesh Sadhuram Taurani is that the Respondent No. 1 had hatched
conspiracy with Nadeem Saifee and Abu Salem for killing Gulshan
Kumar. The only witness who has demonstrated the involvement of
the Respondent No. 1 is P.W. 37 Arif Lakadawala. According to P.W. 37,
he was acquainted with Abu Salem who had fled from India after his
name had surfaced in 1993 serial bomb blast case.
4 According to the prosecution, on 27/6/1997 P.W. 37 Arif
Lakadawala had accompanied Keki Balsara to meet music director
Nadeem Saifee at Juhu. Keki Balsara has died in the toilet of the
office of the Commissioner of Police, Mumbai, before commencement
of the trial. P.W. 37 has deposed that on 27/6/1997 he had seen
Nadeem Saifee handing over two boxes from his car to Keki Balsara
when they met at Juhu. Nadeem had then called one person from his
cell phone and informed him that an amount of Rs. 25 Lakhs was
handed over to Keki Balsara and P.W. 37. He had further asked the
caller to deal with Gulshan Kumar (in the words of P.W. 37 "Gulshan ka
kam kardo"). Nadeem had handed over the phone to Respondent No.
1 who had thereafter, told the caller that money is paid and Gulshan
should be eliminated as soon as possible (in the words of P.W. 37,
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"paisa to de diya hai Gulshan ka kam jaldi nipta do"). That Accused
No. 11 i.e. Respondent No. 1 has been identified by P.W. 37 before the
Court as the same person who had accompanied Nadeem Saifee on
27/6/1997 for delivering the money and had conversation with
absconding Accused Abu Salem who was lodged in Dubai at that time.
5 P.W.45 Arjun Bagdi has categorically admitted that he had
not conducted any investigation in order to trace the identity of the
person to whom the call was made by Keki Balsara to Dubai, except
recording of the statement of Arif Lakdawala. In fact, he was aware
that the detection of telephone number of Abu Salem was an
important factor for establishing conspiracy in the present case. P.W.
45 has also admitted that he had made no attempts to collect evidence
about identity of the subscriber of the telephone No. 951506260786.
It is further pertinent to note that P.W. 37 had not met Accused No. 11
Ramesh Taurani before 27/6/1997 and that was the only occasion
when he had seen the Accused No. 11. However, the Respondent No. 1
Ramesh Taurani has not been subjected to test identification parade.
P.W. 37 has identified him for the first time before the Court. The
evidence of P.W.37 is discussed in detail in the connected judgment.
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6 It is therefore, clear that there is no cogent and convincing
evidence to establish that the Respondent No. 1 Ramesh Taurani had
conspired with Music Director Nadeem Saifee or Abu Salem and
hence, the acquittal of the Respondent No. 1 Ramesh Taurani does not
call for any intervention.
7 As far as Accused No. 16 Abdul Rashid Dawood Merchant
is concerned, the material on record which corroborates substantive
evidence of eye witnesses alongwith corroborative circumstances needs
to be discussed.
8 The first eyewitness is P.W. 1 Ramchandra Lavangare.
According to P.W. 1, the deceased had sustained bullet injuries on his
back and chest at the hands of one unknown person who fled from the
spot immediately after shooting. P.W. 1 has given a graphic narration
before the Court as to the manner in which the incident had occurred.
P.W. 1 has also deposed about the identity of the assailants whom he
had identified in the test identification parade by ascribing specific role
to each one of them.
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9 P.W. 1 has categorically stated that after sustaining injuries
on the back and chest, Gulshan Kumar was trying to go towards
Raundal's House and at that juncture, one person came from the side
of the stall and fired at the deceased, whereas another person came
from behind an auto-rickshaw and shot at the deceased. The third
person had then shot at P.W. 7 Rooplal, driver of the deceased when he
was trying to help his employer i.e. Gulshan Kumar. He has identified
Accused No. 19 as the person who shot at Rooplal. P.W. 1 has further
stated that when he saw a person coming from the side of the stall
and firing at the deceased, he rushed towards the coconut tree, just in
front of Raundal's House. Then, the third person came from behind an
auto-rickshaw and fired at the deceased.
10 P.W. 1 has stated that the Accused No. 16 is the same
person who had come from behind an auto-rickshaw and shot at the
deceased. P.W.1 has voluntarily stated that the assailant who first shot
Gulshan Kumar on his back and chest is not present in the Court.
Abdul Rauf Dawood Merchant, Accused No. 19 is identified as the
same person who had come from the side of the stall.
11 The evidence of P.W.1 has been discussed in detail in
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preceding paragraphs. The evidence of P.W. 1 Lavangare finds support
from the local inspection notes of the learned Sessions Judge which
clearly establishes that the house of Raundal is clearly visible from
behind the coconut tree, which is just in front of Raundal's house. The
spot panchanama drawn on 12/8/1997 corroborates the same.
12 The reasons assigned for the acquittal of the Accused No.
16 i.e. Respondent No. 2 by the Sessions Court is that P.W. 1 has
stated in the cross-examination that he had seen the first assailant on 3
occasions i.e. when he arrived on the scene of offence, shot the
deceased on his back and chest and when he fled. The trial Court has
relied upon this admission to discard the testimony as far as Accused
No. 16 is concerned, on the ground that P.W. 1 must not have seen the
Accused No. 16. In fact, the appreciation ought to have been
otherwise. It is categorically stated by P.W. 1 that after first assailant
fled from the spot, he had seen the other two assailants shooting at the
deceased. P.W.1 has actually given the location from where they arrived
on the scene of offence and shot the deceased. The bullets were not
only retrieved from the back and the chest but from other parts of the
body as well, which would show involvement of two other persons.
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Secondly, it is misconstrued that P.W. 1 had proceeded towards the
coconut tree soon after the arrival of the first assailant. In fact, the
said suggestion is denied. Emphasis is placed upon the fact that P.W. 1
had seen the first assailant running away and therefore, the evidence
regarding involvement of Accused No. 16 has been ruled out. It is
further misconstrued that P.W. 1 had seen Accused No. 1 and 19
running away from the scene of offence.
13 The recitals of Exh.62 i.e. the scene of offence panchanama
is discussed in the preceding paragraphs. The evidence of an
eyewitness cannot be partly relied upon, especially when his testimony
is consistent with the cross-examination. A stray admission in the
cross-examination of P.W. 1 to the effect that he had seen Accused No.1
while fleeing cannot be given undue importance.
14 P.W. 2 Sahebrao Fukhe has clearly stated that Accused Nos.
16 and 19 continued to fire shots at deceased even after he collapsed
in front of Raudal's House. He has stated before the Court that on 21 st
October, 1999, he had identified the Accused Nos. 16 and 19 in the test
identification parade. It is reaffirmed by P.W. 2 in the cross-
examination that he has seen the said persons loitering in the said area
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prior to 12th August, 1997.
15 The evidence of P.W. 2 has been discarded on the ground
that the assailants were running towards Bharat Nagar, whereas, the
witness was coming from Kamgar Nagar Gate and therefore, the trial
Court has expressed a doubt as to whether P.W. 2 was in a position to
see the faces of the assailants properly while firing shots at the
deceased. It needs to be appreciated that the Gate of Bharat Nagar is
adjoining the Shiva Temple and Kamgar Nagar Gate is in front of the
Gate of Bharat Nagar.
16 The trial Court has further observed that in the normal
course, P.W. 2 should have seen P.W. 7 trying to pull away the deceased
from the spot of the incidence to save his employer from further
assault at the hands of assailants. The trial Court has therefore arrived
at a conclusion that P.W. 2 has not witnessed the firing at the hands of
Accused No. 16. The identification of Accused No. 16 by P.W. 2 has
been discarded.
17 The evidence of P.W. 3 Rajesh Johari is believed to the
extent that he had identified Accused No. 19 as the person who had
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threatened him with a pistol to restrain him from chasing. However,
his evidence to the extent that he had seen Accused No. 16 as well has
been discarded.
18 While appreciating the evidence of P.W. 7 Rooplal, the
driver of the deceased, it is held that P.W. 7 could not identify the
Accused No. 16 since he had seen the Accused No. 19 and the first
assailant i.e. the absconding Accused while fleeing from the spot.
According to the trial Court, this would eliminate any active
participation of Accused No. 16 on the spot.
19 According to the trial Court, there is a possibility that 3
assailants were present at the time of incidence, but all three must not
have shot at the deceased. It is further held that the third person must
have only given cover to the other two assailants. The possibility that
he must have used his weapon to shoot Gulshan Kumar has been ruled
out. We are in disagreement with the said finding of the trial Court.
20 It is settled principle of criminal jurisprudence that if an act
committed is a result of pre-meditation and execution, by several
persons, the person who had shared the common intention is to be
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held liable for the said offence. Section 34 of the Indian Penal Code
reads thus:
34. Acts done by several persons in furtherance of common
intention.--When a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons
is liable for that act in the same manner as if it were done by him
alone.]
Whether the death was the result of an act or series of acts of one out
of the several accused, the act is necessarily held to be done by them
within the meaning of Section 34. If death followed the different acts
of different Accused at the same time and place, then again Section 34
would undoubtedly apply.
21 The trial Court has arrived at a conclusion that only two
weapons were used for shooting, one is Article 74 and the other is
Article 35. It is also observed that the bullets or the empty cartridges
did not tally either with Article 74 or Article 35. At the same time, it is
recorded as follows:
"It is abundantly clear that Accused No. 19 had fired shots at the
deceased and P.W. 7. There were in all 12 entry wounds and 10
exit wounds on the dead body. Two bullets were retrieved from
the dead body. The same have been produced in the Article 65A
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and 67A. In addition to this, some guttering wounds were also
found on the dead body. Police had recovered 18 empties and 6
bullets from the spot. Out of the said 6 bullets two bullets were
tallying with Article No. 35. It is thus clear that both the
weapons were used for firing shots at the deceased. The shots
were fired by Accused No. 19 and absconding accused."
This observation has to be read in consonance with the fact that Article
35 is recovered at the instance of Accused No. 16. The investigating
officer has recovered nine bullets. Five of them tally with Article 74
and remaining four tally with Article No. 35. The trial Court has
agreed that Article 35 was recovered at the instance of Accused No. 16,
but has held as follows :
"However, alleged role of Accused No. 16 is found to be doubtful,
since there is no evidence as to which of the two weapons was
used by Accused No. 19."
The trial Court has given undue importance to that part of the
testimony of P.W. 33 that he had failed to record the number of
similarities and dissimilarities in respect of striations found on the land
grooved impression, the similarities and dissimilarities in firing pin
impressions and breach face marks on the empties and therefore, his
evidence cannot be relied upon.
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22 The injuries shown in column No.17 of the post mortem
notes at Exh. 138 would show that the deceased had not only
sustained bullet injuries on his back and chest but also on -
(i) lower lateral side of left leg above ankle;
(ii) entry wound on right leg;
(iii) a shot wound on right thumb;
(iv) an entry wound on lateral aspect of right gluteal region;
(v) an exit wound below left angle of mandible and on right side of
forehead;
(vi) iliac crest and iliac spine and also on right lateral aspect of
buttocks.
All these injuries coupled with the fact that bullets and empties were
found in front of the house of Raundal clearly substantiates the
evidence of P.W.1.
23 In paragraph-211, it is observed as follows :
"The cumulative effect of careful reading of evidence of P.W.
1, 2, 3, 4 and 7 leads me to the conclusion that P.W. 1 had
not seen Accused No. 16. He had seen Accused No. 19
and the first assailant running towards Bharat Nagar area."
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The trial Court has discarded the testimony of P.W. 1 that he had not
seen the Accused No. 1 fleeing from the spot. In fact, the said
contention is reaffirmed in the cross-examination. The evidence of P.W.
1 has been compared and tested with the testimony of the other
eyewitnesses to discard the testimony of P.W. 1 indicating the
involvement of Accused No. 16.
24 The Apex Court in the case of Inder Singh Vs. State of
Rajasthan4, has held as follows :-
"On going through the entire evidence of material witnesses,
other materials and judgment of the courts below, we find that
since the number of accused persons was quite large and they
were bold and strong enough to cause four deaths in the open
field in presence of large number of persons, it cannot be difficult
to understand and appreciate as to why independent witnesses
from the village who might have seen the occurrence, did not
prefer to come out to support the prosecution. But that will not
take away from the worth of deposition of six eye witnesses
when they have given a consistent account of the occurrence
which was disclosed in a nutshell soon after the occurrence in the
FIR lodged by P.W.15 who was seriously and critically injured in
the same occurrence and whose presence cannot be doubted. If,
per chance, he would have been the sole witness, even then it
4 (2015) 2 SCC 743.
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may have been possible for the courts below to convict the
accused persons on his testimony after testing its veracity in the
light of his earlier statement contained in the FIR. In such a
factual scenario, we find no reason to doubt the prosecution case
if the I.O. failed to recover pellets from the open field which was
the place of occurrence or if he could not obtain ballistic report.
The eye version account of the occurrence and the medical
evidence showing large number of injuries including firearm
injuries support each other."
25 Section 153 of the Indian Evidence Act reads thus :
"153. Exclusion of evidence to contradict answers to questions
testing veracity. - When a witness has been asked and has
answered any question which is relevant to the inquiry only in so
far as it tends to shake his credit by injuring his character, no
evidence shall be given to contradict him; but if he answers
falsely, he may afterwards be charged with giving false evidence."
26 It would be unfair to use the evidence of one witness to
contradict the evidence of other witnesses. In fact, there are bound to
be some variations in the testimony of two witnesses. In the present
case, all the three eyewitnesses had seen the assailants from different
locations and at different stages in the series of events. It would be
appropriate to place implicit reliance upon the Judgment of the
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Supreme Court in the case of Leela Ram (D) through Duli Chand v/s.
State of Haryana5. The Supreme Court has observed as follows :
"the High Court is within its jurisdiction being the first appellate
court to re-appraise the evidence, but the discrepancies found in
the ocular account of two witnesses unless they are so vital,
cannot affect the credibility of the evidence of the witnesses.
There is bound to be some discrepancies between the narrations
of different witnesses when they speak on details, and unless the
contradictions are of a material dimension, the same should not
be used to jettison the evidence in its entirety. Incidentally,
corroboration of evidence with mathematical niceties cannot be
expected in criminal cases. Minor embellishment, there may be,
but variations by reason therefor should not render the evidence
of eyewitnesses unbelievable. Trivial discrepancies ought not to
obliterate an otherwise acceptable evidence."
The Supreme Court has further observed as follows :
"The court shall have to bear in mind that different witnesses
react differently under different situations : whereas some
become speechless, some start wailing some others run away
from the scene and yet there are some who may come forward
with courage, conviction and belief that the wrong should be
remedied. As a matter of fact it depends upon individuals and
individuals. There cannot be any set pattern or uniform rule of
human reaction and to discard a piece of evidence on the ground
5 AIR 1999 SC 3717.
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of his reaction not falling within a set pattern is unproductive
and a pedantic exercise."
27 We would not hesitate to observe that the evidence of P.W.
1 by itself would be sufficient to convict the Accused No. 16 as well.
The Supreme Court in the case of State of Karnataka v/s. Yarappa
Reddy6, in which the Judgment of acquittal passed by High Court was
set aside and the conviction and sentence passed by the trial Court was
upheld. The Supreme Court has observed thus :
"The general rule of evidence is that no witness shall be cited to
contradict another witness if the evidence is intended only to
shake the credit of another witness.
The Supreme Court has further observed as follows :
"The basic requirement for adducing such contradictory evidence
is that the witness, whose impartiality is sought to be
contradicted with the help of such evidence, should have been
asked about it and he should have denied it. Without adopting
such a preliminary recourse it would be meaningless, if not
unfair, to bring in a new witness to speak something fresh about
a witness already examined. In Vijayan v. State, [1999] 4 SCC 36,
this Court has held that "the rule limiting the right to call
evidence to contradict a witness on collateral issues excludes all
evidence of facts which are incapable of affording any reasonable
6 (1999) 8 SCC 715.
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presumption or inference as to the principal matter in dispute.""
28 The learned Counsel for the Respondent No. 2 has
supported the judgment of the Sessions Court in so far as the acquittal
of Accused No. 16 is concerned and submits that the Accused No. 16
has been falsely implicated.
29 Per contra, the learned APP has drawn our attention to the
fact that the witnesses have reaffirmed in their cross-examination that
they could identify the assailants since their facial features were
imprinted in the minds of the witnesses. They had seen a ghastly
incident and the disclosure is made by the witnesses immediately after
the incident. It is submitted that the trial Court has compared the
evidence of two witnesses and has arrived at a conclusion that they are
consistent with each other and the discrepancies are minor
discrepancies, which cannot be taken into consideration, more
particularly, in view of the fact that all the witnesses have seen the
incident from different angles and in different situation. Undue
reliance is placed upon immaterial omissions in the cross-examination.
30 It would be relevant to refer to the Judgment of the
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Supreme Court in the case of Dhuleshwar v/s. State of Madhya
Pradesh(Now Chhattisgarh)7, wherein it is observed as follows :
"it is axiomatic that evidence is not to be counted but only
weighed and it is not the quantity of evidence but the quality
that matters. It is held that even the testimony of one single
witness, if wholly reliable, is sufficient to establish the
identification of an accused as a member of an unlawful
assembly."
"In other words, the comprehension of overall evidence on
record is requisite; and mere counting of heads or mere
recitation of names or omission of any name in the testimony of
any particular witness cannot be decisive of the matter. In such
facts and circumstances, even the relevance of the corroborating
facts and factors like that of recovery of weapons or any other
article co-related with the crime in question cannot be ignored
altogether."
31 In fact in the case of Dhuleshwar(cited supra), the Accused
were charged under section 147, 148, 302 read with section 149 of the
Indian Penal Code and 13 Accused were tried. The Supreme Court
was pleased to re-appreciate the evidence and dismissed the appeal as
against five Accused persons, whereas, Accused Nos. 8 and 13 have
been acquitted. The other Accused were acquitted by the trial Court
7 (2020) 11 SCC 440.
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and the High Court.
32 In the present case, there are serious lapses in the
investigation and there is no cogent and convincing evidence to hold
that Respondent No. 1 had spoken to Abu Salem in Dubai. There is no
investigation to verify as to whether that phone No. 951506260786
was used by Abu Salem at that time. Abu Salem was an absconding
Accused since 1993 serial bomb blast. The only witness who has
deposed about the involvement of Respondent No. 1 is P.W. 37 Arif
Lakadawala. The evidence of P.W. 37 would show that he was also
present when Respondent No. 1 had contacted Abu Salem when they
met at Juhu. The application seeking arraignment of P.W. 37 as an
Accused had been rejected with the aid of section 132 of the Indian
Evidence Act. The said order of rejection was not challenged and has
attained finality. In view of this, the acquittal of the Respondent No. 1
calls for no interference.
33 The learned Counsel for the Respondent No. 2 has
vehemently submitted that the acquittal of the Respondent No. 2
cannot be overturned in an appeal against acquittal since the trial
Court has taken a justifiable view to acquit the Accused No.
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16/Respondent No.2.
34 The High Court is the first appellate Court to reappraise
the evidence recorded before the trial Court. It is settled principle of
criminal jurisprudence that an acquittal recorded by the trial Court
need to be necessarily set aside wherever it is noticed that the acquittal
is recorded on the basis of erroneous appreciation of evidence adduced
by the prosecution. In the present case, there are compelling reasons to
set aside the acquittal of the Accused No. 16 and the same has been
discussed above in detail. In the landmark Judgment of Shivaji
Sahebrao Bobade & anr. vs. State of Maharashtra 8, the Supreme Court
has held that -
"In law there are no fetters on the plenary power of the
appellate court to review the whole evidence on which the
order of acquittal is founded and, indeed, it has a duty' to
scrutinise the probative material de novo informed, however, by
the weighty thought that the rebuttable innocence attributed to
the accused having been converted into an acquittal the
homage our jurisprudence owes to individual liberty constrains
the higher court not to upset the holding without very
convincing reasons and comprehensive consideration."
8 1973 AIR 2622.
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"The dangers of exaggerated devotion to the rule of benefit of
doubt at the expense of social defence and to the soothing
sentiment that all acquittals are always good regardless of justice
to the victim and the community, demand especial emphasis in
the contemporary context of escalating crime and escape. The
judicial instrument has a public accountability. The cherished
principles or golden thread of proof beyond reasonable doubt
which runs through the web of our law should not be stretched
morbidly to embrace every hunch, hesitancy and degree of
doubt. The excessive solicitude reflected in the attitude that a
thousand guilty men may go but one innocent martyr shall not
suffer is a false dilemma. Only reasonable doubts belong to the
accused. Otherwise any practical system of justice will then break
down and lose credibility with the community. The evil of
acquitting a guilty person lightheartedly as a learned author(1)
has sapiently observed, goes much beyond the simple fact that
just one guilty person has gone unpunished. ..... For all these
reasons it is true to say', with Viscount Simon, that "a miscarriage
of justice may arise from the acquittal of the ,guilty no less than
from the conviction of the innocent. .."-In short, our
jurisprudential enthusiasm for presumed innocence must be
moderated by the pragmatic need to make criminal justice potent
and realistic. A balance has to be struck between chasing
enhance possibilities as good enough to set the delinquent free
arid chopping the logic of preponderant probability to, punish
marginal innocents. We have adopted these cautious in analysing
the evidence and appraising the soundness of the contrary
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conclusions reached by the courts below. Certainly, in the last
analysis reasonable doubts must operate to the advantage of the
appellant. In India the law has been laid down on these lines
long ago. This Court had ever since its inception considered the
correct principle to be applied by the Court in an appeal against
an order of acquittal and held that the High Court has full power
to review at large I the evidence upon which the order of
acquittal was founded and to reach the conclusion that upon that
evidence the order of acquittal should be reversed."
35 The role of the Accused No. 16/Respondent No. 2 cannot
be segregated from the role of the Accused No. 19/the Appellant in
Criminal Appeal No. 878 of 2002 in any way, since both of them had
shot at the deceased in front of Raundal's House. To disassociate the
role of the Accused No. 16/Respondent No. 2 from the role of Accused
No. 19 would be unjustified in view of the testimony of the
eyewitnesses and the cogent and convincing evidence adduced by the
prosecution.
36 In the present case, at the cost of reiteration, we would
emphasis the observations of the Apex Court in the case of Shivaji
Bobade(supra) as follows :
"If unmerited acquittals become general, they tend to lead to a
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cynical disregard of the law, and this in turn leads to a public
demand for harsher legal presumptions against indicated
'persons' and more severe punishment of those who are found
guilty. Thus too frequent acquittals of the guilty may lead to a
ferocious penal law, eventually eroding the judicial protection of
the guiltless."
37 The assailants had no personal animosity or grudge against
the deceased Gulshan Kumar. They had committed the ghastly act as
they were hired by Nadeem Saifee and Abu Salem who wanted to
satisfy their personal vendetta against the deceased. Unwarranted
acquittals would not only give wrong signal to the society but would
pose a threat to law and order. Therefore, the Accused No.
16/Respondent No. 2 also deserves to be convicted for the offence
punishable under section 120B of the Indian Penal Code.
38 Hence, in view of the above discussion, the appeal against
acquittal of the Accused No. 16/Respondent No. 2 deserves to be partly
allowed.
39 In view of the above observations and discussions, the
following order is passed:
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ORDER
(i) Criminal Appeal No. 1006 is partly allowed;
(ii) The Appeal challenging the acquittal of the Respondent
No.1 - Ramesh Sadhuram Taurani vide Judgment and Order dated
29th April, 2002 by the Additional Sessions Judge, Gr. Mumbai in
Sessions Case Nos. 15/1998 a/w. 448/1998 a/w. 1473/1998 a/w.
18/2000 a/w. 365/2001 is hereby dismissed.
(iii) The Appeal challenging the acquittal of the Respondent
No.2 - Abdul Rashid Dawood Merchant vide Judgment and Order
dated 29th April, 2002 by the Additional Sessions Judge, Gr. Mumbai
in Sessions Case Nos. 15/1998 a/w. 448/1998 a/w. 1473/1998 a/w.
18/2000 a/w. 365/2001 is hereby partly allowed.
(iv) The Respondent No. 2 Abdul Rashid Dawood Merchant is
convicted for the offence punishable under section 302 read with
Section 34 and 120B of the Indian Penal Code and section 27 of the
Indian Arms Act.
(v) The Respondent No. 2 is sentenced to suffer imprisonment
for life and to pay fine of Rs. 5,000/- in default to suffer R.I. for 6
months for the offence punishable under section 302 read with section
34 and 120B of the Indian Penal Code. The Respondent No. 2 is
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sentenced to suffer R.I. for 3 years and to pay fine of Rs. 2,000/- in
default to suffer R.I. for 2 months for the offence punishable under
section 27 of the Indian Arms Act.
(vi) The Respondent No. 2 Abdul Rashid Dawood Merchant is
acquitted of the offence punishable under section 307, 392 and 397 of
the Indian Penal Code.
(vii) The Respondent No. 2 Abdul Rashid Dawood Merchant is
entitled to the set off for the period already undergone during the
pendency of the trial.
(viii) His bail bonds stand cancelled.
(ix) The Respondent No. 2 Abdul Rashid Dawood Merchant
shall surrender forthwith before the Sessions Court or before D.N.
Nagar Police Station. Upon surrendering, the Respondent No. 2 shall
surrender his passport to the police authorities. In the eventuality, he
does not surrender within a week, the Sessions Court shall issue Non-
bailable Warrant against the Respondent No. 2 and take him into
custody.
(x) The Criminal Appeal is disposed of accordingly.
(N.R. BORKAR, J ) (SMT. SADHANA S. JADHAV,J)
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