Bombay High Court
Shakir Nasir Pathan @ Motha Pathan vs State Of Maharashtra on 14 August, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:33311
Gokhale 1 of 37 1-apeal-111-22+ (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 111 OF 2022
Shakir Nasir Pathan @ Motha Pathan ..Appellant
Versus
State of Maharashtra ..Respondent
WITH
INTERIM APPLICATION NO. 783 OF 2023
IN
CRIMINAL APPEAL NO. 111 OF 2022
.........
WITH
CRIMINAL APPEAL NO. 119 OF 2022
Ganesh Suresh Wagh @ Ganya Kavlya ..Appellant
Versus
State of Maharashtra ..Respondent
WITH
CRIMINAL APPEAL NO. 917 OF 2021
Mukesh Dalpatsingh Rajput ..Appellant
Versus
State of Maharashtra ..Respondent
__________
Mr. Tuushar Sonawane for Appellant in Appeal No.111/2022.
Mr. Ganesh Gole a/w. Ateet Shirodkar a/w. Kunjan Makwana a/w.
Bhavin Jain a/w. Viraj Shelatkar for Appellant in Appeal
No.917/2021.
Mr. Aniket Nikam i/b. Vivek N. Arote for Appellant in Appeal
Digitally
No.119 of 2022.
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2024.08.20
17:07:52
+0530
::: Uploaded on - 20/08/2024 ::: Downloaded on - 23/08/2024 12:36:48 :::
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Smt. M. R. Tidke, APP for State/Respondent.
Mr. J. B. Shirsath, P.I. (I.O.) Ambad police station, Nashik city.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 14 AUGUST 2024
ORAL JUDGMENT:
1. All these Appeals are decided by this common Judgment
because they arise out of the same impugned Judgment and order
of conviction and sentence. The impugned Judgment and order is
passed by the Special Judge under MCOCA, Nashik, in Special
Case No.5 of 2016. The Appellant Ganesh Suresh Wagh @ Ganya
Kavlya in Criminal Appeal No.119 of 2022 was the original
accused No.1. The Appellant Mukesh Dalpatsingh Rajput in
Criminal Appeal No.917 of 2021 was the original Accused No.4
and the Appellant Shakir Nasir Pathan @ Motha Pathan in
Criminal Appeal No.111 of 2022 was the original Accused No.5.
For the sake of convenience, the Appellants are referred to by their
names, in the following discussion. There were in all six accused.
The Appellants were convicted and sentenced as follows:
i) The Appellants Ganesh and Shakir were
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convicted for commission of offence punishable
under section 307 r/w. 34 of the I.P.C. and were
sentenced to suffer R.I. for 10 years and to pay a
fine of Rs.3,000/- each and in default to suffer
R.I. for six months.
ii) The Appellants Ganesh and Shakir were
convicted for commission of offence punishable
under section 387 r/w. 34 of the I.P.C. and were
sentenced to suffer R.I. for 5 years and to pay a
fine of Rs.2,000/- each and in default to suffer
R.I. for two months.
iii) The Appellants Ganesh and Shakir were further
convicted for commission of offence punishable
under section 506(II) r/w. 34 of the I.P.C. and
were sentenced to suffer R.I. for 6 months and to
pay a fine of Rs.500/- each and in default to
suffer S.I. for one month.
iv) The Appellants Ganesh and Shakir were further
convicted for commission of offence punishable
under section 426 r/w. 34 of the I.P.C. and were
sentenced to suffer R.I. for 1 month.
v) The Appellants Ganesh and Shakir were further
convicted for commission of offence punishable
under section 397 of the I.P.C. and were
sentenced to suffer R.I. for 8 years and to pay a
fine of Rs.3000/- each and in default to suffer
R.I. for six months.
vi) The Appellants Ganesh and Shakir were further
convicted for commission of offence punishable
under section 3(1)(ii) of the Maharashtra Control
of Organised Crime Act, 1999 and were
sentenced to suffer R.I. for 10 years and to pay a
fine of Rs.5 lakhs each and in default to suffer
R.I. for two years.
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vii) The Appellants Ganesh, Mukesh and Shakir were
further convicted for commission of offence
punishable under section 3(4) of the Maharashtra
Control of Organised Crime Act, 1999 and were
sentenced to suffer R.I. for 8 years and to pay a
fine of Rs.5 lakhs each and in default to suffer
R.I. for two years.
They were acquitted from all the other charges. They
were granted set off U/s.428 of the Cr.p.c. All the sentenced were
directed to run concurrently. All the other accused were acquitted
of all the charges.
2. Heard Mr. Tuushar Sonawane, learned counsel for the
Appellant in Appeal No.111 of 2022, Mr. Ganesh Gole, learned
counsel for the Appellant in Criminal Appeal No.917 of 2021, Mr.
Aniket Nikam, learned counsel for the Appellant in Criminal
Appeal No.119 of 2022 and Smt. M. R. Tidke, learned APP for the
State/Respondent.
3. The prosecution case is that, all the accused were
members of an organised crime syndicate led by the Appellant
Ganesh. The incident, leading to this prosecution, had occurred on
31.05.2016 at about 3:30p.m. outside a wine shop. The Appellants
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and others approached the victim Shubham Bhavsar outside that
wine shop. The Appellant Shakir showed him a pistol. He put it on
the left side of the victim Shubham's head and threatened him.
The other Appellants Ganesh and Mukesh assaulted him with iron
rods. The other accused Saidya Shaikh assaulted him with a
sword. He sustained injuries. They removed Rs.7300/- from him.
They threatened him. It is alleged that the accused were knowing
that, Shubham's father had sold his property and therefore, some
money was available with Shubham. The accused demanded that
money. The people gathered at the spot, therefore, the accused
left. The victim Shubham went to the hospital, took treatment and
then lodged his F.I.R. The investigation was carried out. During
investigation it was revealed that the said offence was committed
as a continuing unlawful activity by an organised crime syndicate.
Therefore, prior approval U/s.23(1) of the Maharashtra Control of
Organised Crime Act, 1999 (hereinafter referred to as 'MCOCA')
for investigating the crime under the provisions of the MCOCA was
obtained. The designated officer carried out the investigation and
filed the charge-sheet against the accused. There were more than
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20 offences against the crime syndicate. All of them were
punishable with three years or more punishment. Cognizance of
those offences was taken by the competent Courts, and therefore,
the provisions of the MCOCA were applied. The charge-sheet was
filed, the sanction U/s.23(2) of the MCOCA was obtained and all
the accused faced the trial before the Special Court.
4. During the trial, the prosecution examined 24 witnesses
including the victim, the two eye witnesses i.e. the shop owner of
the wine shop and his employee, the other victims in some other
incidents, the panchas, the investigating officer, the authority
granting approval U/s.23(1) of the MCOCA, the sanctioning
authority granting sanction U/s.23(2) of the MCOCA and the
Medical Officer. At the conclusion of the trial, the learned Special
Judge recorded the order of conviction and sentence, as mentioned
earlier.
THE VICTIM AND THE EYE WITNESSES
5. The prosecution case was revealed through the evidence
of PW-11 Shubham Bhavsar, who was the victim in this case. He
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has deposed that, at the relevant time in the year 2016, he was
residing at Nashik. His father was running a grocery shop. He
himself was in the business of selling fruits. On 31.05.2016, he
was passing from near Raja Babu wine shop. The Appellant Shakir
called him. He was accompanied by the Appellant Ganesh and
accused Kiran Penmahale, Saidya Shaikh and Devdatta Ghatole.
Shakir demanded Rs.5 lakhs from him. He threatened that, if Rs.5
lakhs were not given in the evening, he would kill Shubham and
his parents. Ganesh told him that, since his house was sold, he had
money. Shakir put a pistol on the left side of Shubham's head and
threatened him. After that, Ganesh and Mukesh assaulted him with
iron rods. Saidya Shaikh assaulted him with a sword. He sustained
injuries and his shirt was torn. The owner of Raja Babu wine shop
separated the quarrel. The accused took Rs.7300/- from his pant
pocket and they left. During the examination in chief, he identified
the appellants Shakir and Ganesh. However, when he pointed out
to an accused as the appellant Mukesh, he turned out to be
another accused Hemant. Then again, he tried to identify Mukesh
by pointing out to another accused, but he turned out to be
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Devdatta Ghatole. At the third time, he pointed out to Mukesh and
then identified him. He further deposed that, after the incident, he
went to Civil Hospital. He was treated there. He returned home
and told about the incident to his father. After that, they
approached Ambad police station and lodged their F.I.R. which was
registered vide the C.R.No.132 of 2016. A copy of the F.I.R. is
produced on record at Exhibit-158. He knew the accused as they
were residing in his area. On the next day of lodging of the F.I.R.,
he showed the spot to the police. The F.I.R. was lodged on
01.06.2016 at about 2:00a.m. On 02.06.2016, at about 6:00p.m.,
two to three unknown persons came to his house and threatened
him to withdraw the complaint lodged by him against the present
appellants. PW-11 then lodged his N.C. which is produced on
record at Exhibit-159. On 16.06.2016 also he was threatened by
some unknown persons. He produced his clothes before the police,
which he had worn at the time of the incident. He identified those
clothes in the court.
In the cross-examination, he deposed that, he did not
have detailed information about the transaction regarding selling
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of house by his father. The distance between his house and Raja
Babu wine shop was about 1Km. The civil hospital was at a
distance of 3 and half kilometers. Before going to the hospital, he
did not contact his family members. He did not inform about the
incident to the police chowky situated at Civil hospital. He did not
tell the Doctor as to how he received the injuries. In the cross-
examination, certain questions were put to him regarding his
earlier transactions with the Appellant Shakir. He deposed that,
Shakir had forced him to execute a writing regarding some loan
advanced by Shakir to him. He did not give details of that
transaction. On 18.05.2015, he had purchased a stamp paper of
Rs.100/- regarding purchase of a vehicle. That was in connection
with the Appellant Shakir. But again he stated that, it was under
threats. He denied the suggestion that, he did not want to return
the money given by Shakir and, therefore, he lodged this false
case. He admitted that, he did not know the full name of Mukesh
and, therefore, did not give his full name and his description in the
F.I.R. He also deposed that a particular phone number was used by
him, but subsequently Shakir used that phone number by giving
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threats to him.
6. PW-9 Karbhari Pawar was an employee of Raja Babu
wine shop. He has deposed that, Shakir, Ganesh and his friends
used to come to their wine shop. They used to take beer, but they
never used to pay. He identified Shakir and Ganesh in the Court.
On the date of the incident, Shakir, Ganesh and one Chavan were
standing outside their shop and Shubham was proceeding from
there. Shakir called him and asked for money. He demanded Rs.5
lakhs from Shubham. When Shubham refused, Ganesh told him
that, Shubham had sold his house and therefore, had money. After
that, Shakir, Ganesh and others assaulted Shubham with iron rods.
Thereafter, Rajabhau Deshmukh, owner of the wine shop came
there and separated the quarrel.
In the cross-examination, he deposed that, there were
flats above the wine shop and there was a shed on both sides of
the wine shop. On that day itself, the police made enquiries with
his owner and he himself.
7. PW-14 Raosaheb Deshmukh was the wine shop owner. In
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the initial part of his deposition, he described as to how the
appellants Shakir, Ganesh, Mukesh and accused Sonu Pawar used
to come to his shop and used to take beer without making
payment. On 31.05.2016, at the time of the incident, Shubham
came there. Shakir called him. There was exchange of hot words.
Shakir slapped Shubham. There was a quarrel between Shakir and
Shubham. This witness has named two more accused Ajinkya
Chavan and Dahashat. Shakir was demanding Rs.5 lakhs. PW-14
tried to pacify them, but the quarrel escalated. Shubham was
assaulted by iron rods. There was bleeding from his ear. This
witness identified the appellants Shakir, Mukesh and Ganesh.
However, he has not mentioned about the presence of Mukesh and
Ganesh at the time of incident of assault on Shubham on
31.05.2016. He deposed that, his statement was recorded and the
police had seen the CCTV footage. They seized his register
showing outstanding dues from the accused who had taken beer,
but had not made the payment in the past.
In the cross-examination, he deposed that, there were
residential houses above his shop. There were CCTV cameras
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installed inside and outside his shop. The police had seen the
CCTV footage in his presence. It was seized by the police. He did
not inform about the incident on his own to Ambad police station
on 31.05.2016. The police came to him on the next day and then
took the footage. According to him, the police recorded his
statement on the next day of the incident.
There were some improvements from his police
statement regarding some incident from the year 2015, but that
incident is not relevant to the present subject matter as it was not
involving the victim Shubham as he was assaulted on 31.05.2016.
He was further cross-examined in respect of his dues which the
accused had not paid after taking beer.
WITNESSES REGARDING SOME PAST INCIDENTS
8. The prosecution has examined few witnesses who are
not really relevant in respect of the incident dated 31.05.2016, but
they have deposed about some prior incidents where the members
of this gang had committed some offences in respect of those
witnesses. Those witnesses are not really material witnesses
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because the prosecution cannot establish that the accused were the
members of an organised crime syndicate through their evidence.
This fact could only be established by proving that there were
more than one charge-sheets against the accused and that those
offences were punishable for three years or more, and that the
competent Courts had taken cognizance of those offences.
However, since the prosecution has examined them, their evidence
is just noted herein below.
9. PW-12 Aniket Zite has deposed about the incident dated
29.02.2016 when his driver was abducted and the money was
demanded by the Appellant Ganesh and others. However, his
evidence does not show that any F.I.R. was lodged in respect of
that incident and that any investigation was carried out. This
particular incident is not a part of the charge in this case and,
therefore, this incident cannot be used to establish that the
appellants had committed the offence on 31.05.2016 against
PW-11 Shubham as part of their continuing unlawful activity.
10. PW-15 Vijay Sanap has deposed about the incident that
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had taken place in October 2015, in which, he was abducted and
was taken to Ghoti. The abductors were demanding Rs.20 lakhs.
According to him, the amount was demanded telephonically by
one Shakir Pathan. He did not fully support the prosecution and,
therefore, he was cross-examined by the learned APP. Again, this
incident has nothing to do with the incident of assault and
extortion committed against the victim Shubham.
11. PW-16 Ganesh Wani was a rickshaw driver. He has
deposed that, there was one gang by the name Tipper gang in
CIDCO area. He knew that, Shakir, Ganesh and Mukesh were the
members of that gang. He identified Shakir and Mukesh in the
Court. But his evidence is vague and it does not take the
prosecution case any further.
12. PW-17 Yogesh Gaikwad has deposed about the incident
dated 28.12.2015, in which, the Appellant Shakir had abducted
him and he was helped by the accused Mukesh. Again here, no
F.I.R. was lodged and there is nothing to show that any
investigation was carried out.
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13. PW-18 Ravindra Nikam was a rickshaw driver. He did
not support the prosecution case and he was declared hostile.
14. PW-19 Rahul Gangurde was another rickshaw driver. He
also did not support the prosecution case and he was declared
hostile. His evidence was about some unrelated incidents.
OTHER RELEVANT WITNESSES
15. PW-10 Vijay Bhavsar was the father of the victim
Shubham. He has deposed that, in 2016 he sold his house for
about Rs.16 lakhs. On 31.05.2016, at about 2:00p.m. Shakir came
to his house and asked for Shubham. He threatened to kill
Shubham. At about 5:00p.m. Shubham returned home. He had
sustained injuries on his chest. His shirt and baniyan were torn.
Shubham told him about the incident. Shubham lodged the F.I.R.
This witness identified Shakir and Ganesh.
In the cross-examination, he was asked about his
earning capacity. He deposed that, Ambad police station was at a
distance of 10 minutes from his house. He and his son approached
Ambad police station at about 5:30p.m. on that day. After that,
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they went to hospital. Then they went back to the police station on
02.06.2016.
16. PW-13 Dr. Chittaranjan Thakare is an important witness.
He had medically examined the victim Shubham at about 4:30p.m.
on 31.05.2016 at Nashik Civil Hospital. He had found that the
victim had suffered blunt trauma over the chest and an abrasion
over the chest of the size 6cm x 1cm. He was shown a sword
having blunt and sharp sides. According to him, that injury was
possible by that sword. There was no other injury on Shubham.
PANCHA WITNESSES
17. PW-1 Gopal Patil was the pancha for spot panchanama.
He has deposed that, Shubham showed the spot on 01.06.2016.
The spot panchanama was produced on record at Exhibit-119.
In the cross-examination, he deposed that, there was a
CCTV camera installed at the shutter of the beer shop.
18. PW-2 Deepak Aher was the pancha in whose presence
the victim had produced his clothes on 02.06.2016.
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In the cross-examination, he admitted that, before he
reached the police station, the clothes were already before the
police and he did not know from where they were brought.
19. PW-3 Sunil Khare was another pancha in whose presence
the Appellant Shakir gave his memorandum statement that he
would produce the money, the weapon i.e. the country made
firearm and also the rods. Shakir led the pancha and the police to
his house and produced Rs.1500/-, the firearm and two iron rods.
In the cross-examination, he admitted that Shakir had
not told the place from where he would produce those articles and
that the panchanama was dictated in the police station.
20. PW-4 Ganesh Shelar was a pancha in whose presence
one Swift Dzire car was seized. However, there is no connecting
evidence about that car with the present subject matter.
21. PW-5 Nilesh Khalkar was another pancha. He was
declared hostile. He was in respect of seizure of one TVS
motorcycle and one sword produced by the accused Kalim Shaikh.
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22. PW-6 Vaibhav Mahajan was a pancha for the house
search of the Appellant Ganesh. In his presence, one packet was
seized from Ganesh's mother which contained one bullet and one
cartridge. This recovery was not at the instance of the appellant
Ganesh but was effected during house search, from the mother of
the appellant Ganesh.
23. PW-8 Vinod Chavan was a pancha in whose presence one
Toyota Etios car was seized. Again, there was no connection of this
particular car with the present subject matter.
POLICE OFFICERS
24. PW-23 PSI Vishal More was attached to Ambad police
station. He recorded the F.I.R. given by Shubham and registered
the offence vide the C.R.No.132 of 2016. On 15.06.2016, ACP Atul
Zende handed over sword, seized in the offence to him. He
collected the injury certificate. He conducted house search of
Ganesh and seized those bullets. Nothing much came out from his
cross-examination.
25. PW-22 API Ravindra Sahare was another investigating
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officer. He had conducted the spot panchanama, arrested the
appellants and the other accused and effected recovery at the
instance of the Appellant Shakir. He found that, there were 22
offences registered against Shakir and 10 offences registered
against Mukesh. Therefore, he prepared the proposal for applying
MCOCA to this investigation and forwarded it to the Commissioner
of Police through the Senior P.I. Dinesh Bardekar. The proposal is
produced on record at Exhibit-225. There were 21 serious offences
registered against the Appellant Ganesh. He was described as the
gang leader. Those offences were within 10 years of the date of the
offence i.e. 31.05.2016.
26. PW-20 S. Jagannathan was the Commissioner of Nashik
from April 2015 to August 2016. He accorded the approval
U/s.23(1) of the MCOCA to apply the provisions of the MCOCA to
the investigation in C.R.No.132 of 2016 of Ambad police station.
According to him, all the necessary ingredients for application of
MCOCA were present in the proposal.
27. PW-21 Sharda Prasad Yadav was the Additional Director
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General of Police (Law and Order) from 02.09.2015 to
01.02.2017. He accorded the sanction U/s.23(2) of the MCOCA to
prosecute these accused under the provisions of the MCOCA.
It may be noted here that, there is no dispute about the
validity of either the approval U/s.23(1) of the MCOCA or the
sanction U/s.23(2) of the MCOCA accorded in this case, by the
defence.
28. PW-24 ACP Atul Zende had conducted the investigation
after application of the MCOCA provisions. He was the ACP,
Nashik, Division-3. He has deposed about the investigation which
is referred to herein above. He also caused the statements of the
witnesses to be recorded U/s.164 of the Cr.p.c., particularly, of the
victims in respect of the other incidents. He collected the records
in respect of the appellants and other members of the organised
crime syndicate. Those records contain charge-sheets and the
orders of cognizance taken by the competent courts. This
important record is produced on record from Exhibit-243 to
Exhibit-275. From this record, it is clear that, more than one
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charge-sheets involving the offences punishable for three years or
more were pending against the various members of the organised
crime syndicate; of which, cognizance was taken by the competent
courts.
This, in short, is the evidence led by the prosecution.
29. The Appellant Shakir examined his wife as the only
defence witness to show that the Appellant was not in Nashik on
31.05.2016 and had gone to Ajmer. She was examined as the
defence witness No.1. She has produced the train tickets and some
photographs.
DEFENCE ARGUMENTS
30. Mr. Tuushar Sonawane, learned counsel appearing for
the Appellant Shakir, made the following submissions:
The victim Shubham himself and the beer shop owner
had their independent grudge against the appellant Shakir. The
cross-examination of Shubham showed that, there was previous
transaction involving loan of the four wheeler and because of that
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dispute Shubham had grudge against the appellant. There are
allegations that the appellant Shakir and others used to take beer
in large quantity from the beer shop of Raosaheb Deshmukh
without making any payment. Therefore, PW-14 Raosaheb
Deshmukh and PW-9 Karbhari Pawar working in the shop had their
own grudge against the appellant Shakir. Therefore, he was falsely
implicated. There was delay in lodging the F.I.R. He submitted
that, Section 307 of the I.P.C. is not made out, therefore,
conviction U/s.307 of the I.P.C. is required to be set aside. The
injury suffered by Shubham was quite minor. The police had,
admittedly, seen the CCTV footage, but it was not produced and
there is no further reference to that CCTV. Therefore, adverse
inference needs to be drawn. Learned counsel relied on the train
tickets and the photographs produced on record by the defence
witness. He submitted that the evidence of the defence witness
shows that the appellant Shakir has provided his alibi .
31. Mr. Aniket Nikam, learned counsel for the Appellant
Ganesh adopted these submissions and added that the evidence
shows that the incident had taken place in a crowded locality and
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no other independent witness was examined. PW-14 wine shop
owner Raosaheb Deshmukh does not name the Appellant Ganesh
in respect of the incident dated 31.05.2016. Their statements are
recorded belatedly on 03.06.2016.
32. Mr. Ganesh Gole, learned counsel appearing for the
Appellant Mukesh submitted that, PW-9 and PW-14 have not
named the appellant Mukesh at all in respect of the incident dated
31.05.2016. As far as, PW-11 Shubham is concerned, he has not
properly identified the appellant Mukesh in the Court. His
evidence shows that, on two occasions, he identified some other
accused as the appellant Mukesh and only on the third occasion he
could identify the appellant Mukesh. This shows that, PW-11 was
never sure about the identity of the appellant Mukesh and,
therefore, he is falsely implicated. He further submitted that the
learned trial Judge himself has observed in paragraph-198 of the
impugned judgment that his involvement in the offence committed
under IPC sections was not established by the prosecution.
However, there was material regarding his previous offences and,
therefore, he was convicted U/s.3(4) of the MCOCA. Learned
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counsel submitted that, this approach of the learned Trial Judge is
wrong and if the appellant Mukesh was acquitted from the IPC
offences, he could not have been convicted U/s.3(4) of the
MCOCA.
ARGUMENTS OF THE LEARNED A.P.P.
33. Learned APP Mrs. Tidke relied on the evidence of PW-9,
PW-11 and PW-14 to contend that the prosecution has proved its
case. There was an attempt to commit murder but only because
people gathered at the spot, PW-11 was saved. PW-11 Shubham's
evidence is supported by the medical evidence. The incidents
involving other witnesses show that all the accused have
committed the offence of continuing unlawful activity as members
of an organised crime syndicate. She supported the reasons given
by the learned Trial Judge.
DISCUSSION BY THE LEARNED TRIAL JUDGE
34. The learned Trial Judge has considered all these
submissions in his Judgment. He has discussed the alibi given by
the appellant Shakir and had observed that the photographs were
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not properly proved as the certificate U/s.65B of the Evidence Act
was not given as the photographs were taken by a mobile phone.
There was nothing to show that the appellant Shakir had travelled
on the same train tickets. He has observed that, there was hardly
any delay in lodging the F.I.R. He, however, acquitted the
appellants from the allegations of commission of offence under the
Arms Act, in the absence of requisite sanctions. He further
observed that, the past incident of taking beer without making
payment was not properly proved by the prosecution. However, he
believed the eye witnesses in respect of the main incident dated
31.05.2016 and convicted and sentenced the appellants.
REASONS AND CONCLUSION
35. From the above discussion, it is clear that, as far as, the
main incident of assault on and extortion from PW-11 is
concerned, there are three witnesses including the victim himself.
PW-11 Shubham had named Shakir, Ganesh and Mukesh and had
attributed specific roles to them. However, as rightly submitted by
the learned counsel for the appellant Mukesh, he had made serious
26 of 37 1-apeal-111-22+ (J)
mistakes in identifying the appellant Mukesh, for which, even the
Trial Court has given the benefit of doubt to the appellant Mukesh.
I see no reason to take a different view. Therefore, it must be held
that the victim Shubham has not properly identified the appellant
Mukesh. The other two eye witnesses have not named him in
respect of the incident dated 31.05.2016. Therefore, it will have to
be held that the Appellant Mukesh had no concern and was not
involved in the incident dated 31.05.2016, wherein, Shubham was
assaulted and his money was extracted from him.
36. However, the case against Shakir and Ganesh is proved
through the evidence of PW-11 Shubham, PW-9 Karbhari Pawar
and PW-14 Raosaheb Deshmukh. Though, PW-14 has not named
the Appellant Ganesh in respect of the incident dated 31.05.2016,
PW-9 and PW-11 have consistently deposed about his presence
and role. There is consistent evidence and, in particular, there is
evidence of the victim himself regarding the role played by
Ganesh and Shakir. The ocular evidence is supported by the
medical evidence showing injuries suffered by Shubham on
31.05.2016. There is hardly any delay in lodging the F.I.R. The
27 of 37 1-apeal-111-22+ (J)
victim had immediately gone to the hospital.
37. The evidence of the defence witness regarding the alibi
does not inspire confidence. There is nothing to show that Shakir
had travelled on those tickets. The photographs are not proved in
accordance with law; as rightly held by the learned Trial Judge.
38. Therefore, it can safely be held that the prosecution has
proved that both these Appellants Ganesh and Shakir had taken
part in the incident dated 31.05.2016, wherein, victim Shubham
was assaulted. His amount of Rs.7300/- was robbed from him.
39. The question is, which IPC offence is committed. The
description of the incident shows that the ingredients of Section
387 of the IPC, as well as, Section 397 of the IPC are made out.
However, from the evidence and in particular from the medical
evidence, it cannot be said that ingredients of Section 307 are
made out. The description shows that the accused were more in
numbers. They had weapons like iron rods and, in fact, appellant
Shakir had a firearm with him and yet only one simple injury and
one blunt trauma was caused to the victim Shubham. The accused
28 of 37 1-apeal-111-22+ (J)
had sufficient opportunity and had weapons to commit murder if
they had intention to do so. From the evidence, the prosecution
has not proved that the accused including the appellants Ganesh
and Shakir had any intention to commit the offence U/s.307 of the
I.P.C. Therefore, the conviction recorded for commission for the
offence U/s.307 of the IPC will have to be set aside. On the other
hand, since the ingredients of Sections 387, 397, 506(II) and 426
of the I.P.C. are sufficiently proved, the conviction recorded under
these sections will have to be upheld. The victim was threatened,
he was assaulted, his money was taken away and some further
amount was demanded from him. All these factors satisfy the
requirement of Section 387, 397, 426 and 506(II) of the I.P.C. The
deadly weapons like iron rods were used. The firearm was not
fired, but the victim was assaulted with the iron rods causing
hurt.
40. The next question is regarding applicability of the
MCOCA. The prosecution has brought on record the entire history
of offences against the appellants. As mentioned earlier, there is no
dispute about the validity of the approval and the sanction under
29 of 37 1-apeal-111-22+ (J)
the MCOCA. There were more than one charge-sheets against the
organised crime syndicate led by the appellant Ganesh. The
offences were punishable for three years or more imprisonment
and the cognizance was taken by the competent courts. Therefore,
the offences under MCOCA, as far as, Appellant Ganesh and Shakir
are concerned, are proved because the incident dated 31.05.2016
was part of the continuing unlawful activity, which was committed
by the members of an organised crime syndicate. This all satisfies
the requirements of Section 3(1)(ii) and Section 3(4) of the
MCOCA.
41. As far as, the Appellant Mukesh is concerned, since the
main offence under the IPC is not proved and it is not proved by
the prosecution that he was even present on 31.05.2016 at the
time of commission of that particular offence, he cannot be
convicted under sections 3(4) of the MCOCA.
Learned counsel for the appellant Mukesh relied on the
two Judgments to support his contentions. The first is State of
Maharashtra Versus Shiva Alias Shivaji Ramaji Sonawane and
30 of 37 1-apeal-111-22+ (J)
others1 and other is the Judgment dated 03.08.2021 passed in
Criminal Appeal No.901 of 2018 by a single Judge bench of this
Court at Aurangabad bench. In both these judgments, the issue
involved was slightly different. In this particular case, though
all the accused are not acquitted, in fact, I am holding that the
accused Nos.1 and 5 have committed the offence on 31.05.2016
as a part of continuing unlawful activity of an organised crime
syndicate. The question remains whether in such case the
appellant Mukesh can be convicted only U/s.3(4) of the
MCOCA.
Section 3(4) of the MCOCA reads thus:
"3. Punishment for organised crime: (1) Whoever
commits an offence of organised crime shall -
(i).......
(ii).......
(2) .......
(3) .......
(4) Any person who is a member of an organised crime
syndicate shall be punishable with imprisonment for a
term which shall not be less than five years but which
may extend to imprisonment for life and shall also be
1 (2015) 14 Supreme Court Cases 272
31 of 37 1-apeal-111-22+ (J)
liable to a fine, subject to a minimum fine of rupees
five lacs."
42. Therefore, the question is, whether he can be termed as
'a member of an organised crime syndicate' in the absence of his
part in the incident dated 31.05.2016. The definition of 'organised
crime syndicate' is provided U/s.2(f) which reads thus:
"2. Definitions: (1) In this Act, unless the context
otherwise requires:-
xxxxx
xxxxx
(d) "continuing unlawful activity" means an activity
prohibited by law for the 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 proceeding period of ten years and
that Court has taken cognizance of such offence;
(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 any other person or
promoting insurgency;
(f) "organised crime syndicate" means a group of two
32 of 37 1-apeal-111-22+ (J)
or more persons who, acting either singly or
collectively, as a syndicate or gang indulge in activities
of organised crime;"
All these definitions under sections 2(1)(d), (e)
and (f) are interconnected.
43. To convict a person as a member of an organised crime
syndicate, the prosecution has to prove that, he was a member of
such organised crime syndicate with reference to the activities of
an organised crime syndicate and, in particular, to show that the
activity which is the subject matter of the trial was a continuing
unlawful activity. In the present trial, the prosecution has proved
that the incident dated 31.05.2016 was a part of continuing
unlawful activity committed on behalf of the organised crime
syndicate. But the prosecution has failed to prove that Mukesh had
any connection with the incident dated 31.05.2016. As far as, the
past activities of Mukesh are concerned, the occasion to prove that
those activities were actually committed by Mukesh and were part
of the activities of an organised crime syndicate; did not arise
because truthfulness of the allegations regarding those activities
33 of 37 1-apeal-111-22+ (J)
was not the subject matter of the present trial. Therefore, the
prosecution cannot be said to have proved that, he has committed
an offence U/s.3(4) of the MCOCA. With the result, the appellant
Mukesh will have to be acquitted from all the charges.
44. As far as, the other two appellants Shakir and Ganesh
are concerned, their conviction U/s.307 of the I.P.C. will have to be
set aside. Learned counsel for the appellants submitted that, both
these appellants Ganesh and Shakir are in custody since June
2016. More than 8 years have already passed. They have already
completed their substantive sentence, as far as, the other offences
than the offences U/s.307 of the IPC and Section 3(1)(ii) of the
MCOCA are concerned. Therefore, some leniency be shown to
them.
45. Learned APP opposed these submissions considering the
seriousness of the antecedents against them.
46. I have considered these submissions. The appellants
Ganesh and Shakir are in custody since June 2016. The appellant
Shakir was never released. The Appellant Ganesh was released for
34 of 37 1-apeal-111-22+ (J)
some period. They have already completed their substantive
sentence and thereafter their appeals have reached for final
hearing stage. Therefore, I am inclined to show some leniency, as
far as, the sentencing part is concerned. In this background, ends
of the justice will be served if their substantive sentences for the
offence punishable U/s.397 of the I.P.C. and for the offences
U/s.3(4) and 3(1)(ii) of the MCOCA are reduced, and if their 'in
default' sentences for non payment of fine under the MCOCA are
reduced. Considering the over all circumstances and the above
submissions, I am inclined to impose major sentence of 7 years of
R.I. which would be minimum sentence for the offence U/s.397 of
the I.P.C.
47. The Investigating Officers have taken efforts in carrying
out the investigation and I record my appreciation for the manner
in which the investigation was conducted.
48. Hence, the following order:
ORDER
i) The Criminal Appeal No.917 of 2021 is allowed.
35 of 37 1-apeal-111-22+ (J)
ii) The Appellant Mukesh Dalpatsingh Rajput is
acquitted from all the charges.
iii) The fine, if paid, shall be refunded to Mukesh
Rajput.
iv) The Appellant Mukesh Rajput, however, shall
execute P. R. bond in the sum of Rs.30,000/-
within four weeks from today, in case the Appeal
against the acquittal is preferred, to ensure his
availability.
v) The Criminal Appeal No.119 of 2022 and the
Criminal Appeal No.111 of 2022 are partly
allowed.
vi) The Appellant Ganesh Suresh Wagh @ Ganya
Kavlya and the Appellant Shakir Nasir Pathan @
Motha Pathan (Accused Nos.1 and 5) are
acquitted from the offence punishable U/s.307 of
the I.P.C. The corresponding sentence for the
offence U/s.307 of the I.P.C. is set aside.
vii) The conviction of these accused Ganesh Suresh
Wagh @ Ganya Kavlya and Shakir Nasir Pathan
@ Motha Pathan under section 3(1)(ii) of the
MCOCA is maintained. However, instead of
sentence of 10 years of R.I., they are sentenced to
suffer R.I. for 7 years and to pay a fine of Rs.5
lakhs each and in default to suffer R.I. for six
36 of 37 1-apeal-111-22+ (J)
months each.
viii) The conviction of these accused Ganesh Suresh
Wagh @ Ganya Kavlya and Shakir Nasir Pathan
@ Motha Pathan under section 3(4) of the
MCOCA is maintained. However, instead of
sentence of 8 years of R.I., they are sentenced to
suffer R.I. for 7 years and to pay a fine of Rs.5
lakhs each and in default to suffer R.I. for six
months each.
ix) The conviction of these accused Ganesh Suresh
Wagh @ Ganya Kavlya and Shakir Nasir Pathan
@ Motha Pathan under section 387 r/w. 34 of the
I.P.C. is maintained and they are sentenced to
suffer R.I. for 5 years and to pay a fine of
Rs.2000/- each and in default to suffer R.I. for
two months each.
x) The conviction of these accused Ganesh Suresh
Wagh @ Ganya Kavlya and Shakir Nasir Pathan
@ Motha Pathan under section 506(II) r/w. 34 of
the I.P.C. is maintained and they are sentenced to
suffer R.I. for 6 months and to pay a fine of
Rs.500/- each and in default to suffer R.I. for one
month each.
xi) The conviction of these accused Ganesh Suresh
37 of 37 1-apeal-111-22+ (J)
Wagh @ Ganya Kavlya and Shakir Nasir Pathan
@ Motha Pathan under section 426 r/w. 34 of the
I.P.C. is maintained and they are sentenced to
suffer R.I. for 1 month each.
xii) The conviction of these accused Ganesh Suresh
Wagh @ Ganya Kavlya and Shakir Nasir Pathan
@ Motha Pathan under section 397 r/w. 34 of the
I.P.C. is maintained. However, instead of sentence
of 8 years of R.I., they are sentenced to suffer R.I.
for 7 years and to pay a fine of Rs.3000/- each
and in default to suffer R.I. for six months each.
xiii) All the substantive sentences are directed to run
concurrently.
xiv) The appellants Ganesh Suresh Wagh @ Ganya
Kavlya and Shakir Nasir Pathan @ Motha Pathan
shall be given benefit of set off U/s.428 of the
Cr.p.c.
xv) All the Appeals are disposed of.
xvi) With disposal of all the Appeals, the interim
application is also disposed of.
(SARANG V. KOTWAL, J.)
