Mohd.Farooq A.G.Chipa Rangari & ANR. Vs. State of Maharashtra [2009] INSC 1403 (6 August 2009)
2009 Latest Caselaw 649 SC

Mohd.Farooq A.G.Chipa Rangari & ANR. Vs. State of Maharashtra [2009] INSC 1403 (6 August 2009)

Judgment

STATE OF MAHARASHTRA (Criminal Appeal Nos. 85-86 of 2006) AUGUST 6, 2009 [S.B. Sinha and Dr. Mukundakam Sharma, JJ.] 2009 (12) SCR 1093 The Judgment of the Court was delivered by DR. MUKUNDAKAM SHARMA J.

1.     These appeals are filed against a common judgment and order dated 17th December, 2003 passed by a Division Bench of the High Court of Judicature at Bombay in Confirmation Case No. 01 of 2001 and Criminal Appeal Nos. 661 of 2000; 679 of 2000; 753 of 2000 and 758 of 2000 and are being disposed of by this common judgment.

2.     The prosecution case in brief is as follows: - One Milind Vaidya is the ex-Mayor of Mumbai. He belongs to the Shiv Sena, a political party, active in Maharashtra. On 4th March, 1999 at about 9.45 p.m. he alongwith 7-8 workers were sitting in an open shed by the side of Mori Road. He was guarded by his two body guards, namely, Constable Dinanath Pawar (PW- 2) and Constable Sandeep Eaghmare (PW-3). They were armed with a 9 mm pistol and 9 mm carbine with 90 rounds respectively.

The said shed house is an office of Shiv Sena `Shakha'. At about 5 minutes past 10.00 p.m. a white Maruti car with a number plate MH-03-H-1749 came from the side of Mahim Railway Station.

When it reached near the said open shed three persons started firing at Milind Vaidya and others who were sitting in the shed. One of the assailants was sitting alongside the driver on the front seat and the other two were sitting at the back seat. . In the aforesaid incident three persons died while seven to eight persons, including Shri Milind Vaidya, injured.

3.     The said Maruti car was being driven allegedly by Abdul Hasan (Accused No.8) and Azzizuddin (Accused No.7) was sitting by his side being armed with a AK-56 rifle. Mohd. Zuber (Accused No.5) and Fazal Mohd. (Accused No.6) were sitting on the rear side of the said car and were armed with 9 mm pistol. All the aforementioned three persons were said to have fired at Milind Vaidya and his associates indiscriminately, who were sitting in the shed.

4.     Body guard Dinanath Pawar, who examined himself as PW- 2, is said to have fired three rounds from his pistol on the Maruti Car. Other body guard namely Sandeep Waghmare (PW-3), is said to have chased the car upto some distance but did not fire any shot, although armed with a carbine. The incident of firing lasted for a few seconds whereafter the Maruti car sped away.

Milind Vaidya sustained bullet injuries. Besides six others, namely - Nishchal Krishna Chaudhari; Vinay Narayan Akare; Babu Kashinath Mangela; Niteen Narayan Mehar; Murugan V Tewar; and Vijay Kashinath Akare also sustained bullet injuries. Three of his associates, namely - Milind Gunaji Chaudhari, Vilas Gopinath Akare and Deepak Sitaram Akare succumbed to their injuries.

5.     All the aforesaid victims were immediately rushed to Hinduja Hospital, Mumbai where they were admitted for examination and treatment. Post mortem examinations of the three deceased were carried out on the next day. They were found to have sustained bullet injuries on different parts of their body and lead pieces were recovered therefrom.

6.     It is worthwhile to mention here that a similar attempt on the life of Milind Vaidya had also been made by unknown persons three months prior to the incident in question. At that time he had escaped with some injuries. He earlier used to have a body guard for his personal safety. However, after the said incident he was provided with three body guards during day time and two during night time. One of the guards was provided with a carbine weapon while the other two were provided with 9 mm pistols. Milind Vaidya used to sit alongwith his workers at night time in the shed adjoining the foot-path of Mori Road, Mahim for the purpose of hearing the grievances of the people. At that time he used to be escorted by his body-guards.

7.     First Information Report was lodged on 4th March, 1999 at Mahim Police Station. The investigation of the case was taken up by PI Yashwant Puntambekar (PW-36). However, having regard to the gravity of the offence the Commissioner of Police, Mumbai, directed the Senior Police Inspector, CID - Unit IV, to take over further investigation of the case, pursuant whereof Senior P.I. Bagul took over the investigation. Thereafter PI Bharat Tambe (PW-59) took over the investigation on 06.03.1999. A Maruti car was located on 8th March, 1999 in an abandoned condition having been found parked in Jain Derasar Lane at Wadala. On inspection of the car one empty shell of AK-56 rifle; 2 empties of 9 mm caliber pistols and two empties of mouser pistols etc. were found. It was suspected that the said car was used in the commission of the aforesaid crime.

8.     After appellant No.1 (Mohd. Farooq) was arrested on 13th March, 1999, the Joint Commissioner of Police (Crime) granted permission to apply the provisions of Maharashtra Control of Organised Crime Ordinance, 1999 to the present case pursuant whereto the investigation was taken over by an Assistant Commissioner of Police namely, Pradeep Sawant (PW-61) from PI Bharat Tambe on 26th March, 1999. He was said to have been supervising the investigation of the case in his capacity as ACP (Detection-I) and for effective and extensive investigation of the present case, he formed a team of 13 police officers.

9.     In all there were eight accused persons namely, Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No. 1), Aslam Mohammed Kutti (Accused No. 2), Abdul Kadar Abdul Gafoor Rizvi (Accused No. 3), Mansoor Hasan Haji Iqbal Pankar (Accused No. 4), Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu (Accused No. 5), Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar (Accused No. 6), Azzizuddin Zahiruddin Shaikh alias Abdul Sattar (Accused No. 7) and Abdul Hasan Bande Hasan Mistri (Accused No. 8) involved in the case.

10.  Accused No.1 (Appellant No.1 herein) was arrested on 13th March, 1999 whereas Accused No.4 (Appellant No.2 herein) was arrested on 21st June, 1999 along with Accused Nos. 2 and 3.

Accused Nos. 5 and 6 were arrested on 18th June, 1999 by the Special Cell of Delhi Police. Accused No. 7 was arrested on 15th June, 1999 with AK-56 rifle by Hazariganj Police Station, Lucknow, U.P. and Accused No. 8 was arrested on 21st July, 1999.

11.  On 4th April, 1999 the Appellant No.1 took police and panchas to certain places and STD booths on Mohd. Ali Road, Masjid Road, near J. J. Marg Police Station at Dongri wherefrom he used to contact Faheem. Appellant No.1 made a confessional statement on 10th April, 1999 regarding his involvement in the incident. It was recorded by DCP Parambir Singh (PW-51).

12.  On 25th June, 1999, Mansur Hasan (Accused No. 4) took police party to the garage of one Chaggan Vithal where he is said to have given the Maruti car used in the commission of the crime for repairs. He also showed to the police on 6th July, 1999 an STD booth at Dongri wherefrom he had contacted Faheem and obtained mobile phones as well as a duplicate motor driving licence. At the instance of Mohd. Zuber (Accused No. 5) on 18th July, 1999, discovery of 9 mm China made pistol, which was found kept in a cup-board in a hut behind Mahim Bus Depot was made.

His confessional statement was recorded on 30.07.1999 by Ravindra Kadam, DCP (Zone IV) who examined himself as PW- 39 which was however subsequently retracted.

13.  Confessional statement of appellant No.2 was recorded on 30th July, 1999 by DCP Kadam who examined himself as PW-39.

However, appellant No.2 retracted his confession when he was produced before the Chief Judicial Magistrate.

14.  On 9th August, 1999 Accused No. 5 led the police party to a telephone booth at Mahim wherefrom he had contacted Faheem and Chhota Shakeel in Karachi, Pakistan. Discovery of AK 56 rifle together with 5 cartridges which was found kept in a rexine bag on the loft of a hut behind Mahim Bus Depot was made on 17th July, 1999 at the instance of Azzizuddin (Accused No.7). A finger print expert, who was called, found one chance finger print on the said rifle. Discovery of two plates from room No.15 on the ground floor of building No.1 in Kidvai Nagar, Wadala , was made at the instance of Abdul Hasan (Accused No.8).

15.  Confession of the aforementioned six persons was recorded by three DCPs namely, Mr. Kadam (PW-39), Mr. Paramvir Singh (PW-51) and Mr. Shindre (PW-60). Test Identification Parade of accused Nos. 4 to 8 was conducted on 10th August, 1999 by the Special Executive Officer who examined himself as PW-32.

16.  Upon completion of the investigation, a voluminous charge sheet was filed before the Designated Court on 8th September, 1999. The charges were framed against all the aforesaid accused persons under various provisions of the Indian Penal Code, 1860 (for short `the IPC') and the Arms Act. Considering the gravity of the crime and the fact that all the eight accused persons being members of organized crime syndicate of Chhota Shakeel, the provisions of Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as `MCOCA') were also invoked. All the aforesaid accused persons were charged for conspiring, abetting and facilitating commission of the aforesaid crime as members of the said organized crime syndicate.

17.  In the charge sheet Chhota Shakeel and Mohd. Faheem have been shown as the absconding accused. The prosecution case proceeded on the premise that all the accused had hatched a conspiracy to eliminate Milind Vaidya and with that common object in mind they aided each other for causing his murder. They were said to be in constant touch with Mohd. Faheem for the purpose of taking instructions from him on telephone. They had been provided with arms and ammunitions and money by the absconding accused persons namely, Chhota Shakeel and Mohd. Faheem.

18.  Appellants herein are said to be belonging to the gang of fugitive criminal namely Chhota Shakeel who allegedly operates his organised crime activities from Karachi, Pakistan. He is also aided by another ganglord namely, Mohd. Faheem. Both of them are said to belong to the gang of underworld don Dawood Ibrahim.

19.  All the eight accused persons allegedly being members of organized crime syndicate of Chhota Shakeel were charged under Sections 3(1) r/w 2(e) of MCOCA. They were further charged of conspiring, abetting and facilitating commission of aforesaid crime as members of the said organized crime syndicate under Sections 3(2) of MCOCA read with Section 120B of IPC . For their agreement to do the abovesaid illegal act they were also charged under Section 120-B IPC.

20.  Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No.1) was separately charged under Sections 302, 307 read with Section 120B/34 and 109 IPC (Indian Penal code, 1860) on the ground that he, in pursuance of the said conspiracy, was in constant contact on mobile with Faheem, collected money and also three mobile phones from Guddu and delivered the same to Accused Nos. 5 and 6, provided driver i.e. Accused No. 8 with the car facilitating commission of the crime and thus had the common intention to commit the crime. He was also charged under Sections 201, 34 IPC for assisting accused Nos. 5, 6 and 7 to cause disappearance of AK-56 rifle with intent to screen the offenders from legal punishment.

21.  Aslam Mohammed Kutti (Accused No. 2) was separately charged under Sections 302, 307, 120B r/w 34, r/w 109 of IPC being in contact with Mohd. Faheem, who was in Karachi, Accused Nos. 2 and 3 collected weapons from Neeta from Mazgaon and handed it over to Accused Nos. 4 and 7 for using the same in the aforesaid offence. Further, Accused No. 2 purchased three mobile phones and handed over the same to Accused No. 4 thus, facilitated commission of crime as a member of conspiracy in furtherance of common intention. He was further charged under Sections 25(1A) and 25(1B) of the Arms Act for possessing jointly with Accused No. 3 a rexin bag containing two 9 mm pistols and AK-56 rifle in contravention of Section 3 & 7 of the Arms Act.

22.  Abdul Kadar Abdul Gafoor Rizvi (Accused No. 3) was charged under Sections 25 r/w 3 & 7 of the Arms Act for collecting jointly with Accused No.2 a rexin bag from Neeta containing two pistols, one rifle for use in the aforesaid offence and handed over the same to accused Nos. 4 & 7 and thus committed offence of possession of unlicensed and prohibited arms in contraventions of Sections 3 & 7 of the Arms Act. He was also charged under Sections 302, 307 of IPC r/w 120B, 34 & 109 of IPC for delivering weapons to accused Nos. 4 and 7 which were later used in the commission of the aforesaid offence thus, facilitated commission of offence as a member of conspiracy and in furtherance of common intention. He was further charged under Sections 302, 307 r/w 34, 120B, and 109 of IPC for purchasing three mobile phones along with Accused No. 2 from Hira Panna Market to facilitate the aforesaid crime.

23.  Mansoor Hasan Haji Iqbal Pankar (Accused No.4) was charged under Sections 411 r/w 34 and 120-B of IPC for conspiring, as per the directions of Faheem, in collecting white coloured Maruti 800 Car from Phila House, Mumbai and the aforesaid stolen car was used by accused Nos. 4 and 7 and thus was a member of conspiracy and committed offence of dishonestly receiving stolen property. He was further charged under Sections 302, 307 r/w 34, 120-B and 109 of IPC for handing over the stolen car to Accused No. 8 which was actually used in the aforesaid offence. He was further charged under Section 201 r/w 34 and 120-B of IPC for taking over charge of two mobile phones from accused Nos. 5 and 7 after the aforesaid offence and for concealing the same in his house.

24.  Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu, Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar, Azzizuddin Zahiruddin Shaikh alias Abdul Sattar and Abdul Hasan Bande Hasan Mistri (Accused Nos. 5 to 8) respectively were charged under Sections 25 r/w 3 & 7 of the Arms Act for traveling in the stolen Maruti Car, carrying unlicensed pistols and prohibited firearms i.e. A-56 rifle in furtherance of conspiracy and common intention with accused Nos. 5 to 7. They were further charged under Sections 25 (1A), 25(1B) r/w 3, 7 and 35 of the Arms Act for having joint possession/control of the said vehicle i.e. the stolen Maruti car which was used in the aforesaid crime and were aware of existence of fire arms in the vehicle.

25.  Accused Nos. 5 to 7 were charged under Sections 3 (1) (i) of MCOCA read with Sections 302 & 120B of IPC for committing the offence of organized crime on behalf of the syndicate with the object of gaining advantage of syndicate and promoting insurgency. They were also charged under Sections 3 (1) (ii) of MCOCA read with Sections 307 & 120B of IPC for firing with weapons, causing injuries and endangering the life of 7 persons.

They were further charged under Sections 302, 307 r/w 34 and 120-B of IPC for being taken in a stolen Maruti Car by Accused No. 8 at the spot and for firing with their pistols and rifles on the victims. They were charged under Sections 25(1A), 25(1B) and 27(3) of the Arms Act for possessing fire arms in contravention of Section 3 & 7 of the Arms Act. They were also charged under Section 201 r/w 34 and 120-B of IPC for hiding their respective fire arms knowing that they were used in commission of offence thus, attempted disappearance with an intention to screen the offender.

26.  Abdul Hasan Bande Hasan Mistri (Accused No. 8) was separately charged under Sections 302, 307 r/w 34 and 120-B of IPC for taking Accused Nos. 5 to 7 in Maruti car in furtherance of conspiracy and common intention thereby facilitating the crime of murder and fatal injuries. He was also charged under Sections 424, 414 r/w 34 and 120-B of IPC for dishonestly receiving the stolen Maruti Car and changing the number plate and thus assisting in concealment of stolen property in furtherance of conspiracy and common intention. He was further charged under Section 212 of IPC for harbouring Accused Nos. 5 to 7 in stolen Maruti Car immediately after the aforesaid offence with the intention of screening them.

27.  In support of its case the prosecution examined 64 witnesses out of them 5 were eye witnesses including the injured persons. Six STD/ISD booth owners were also examined to prove that some of the accused had made telephone calls from their booths to Karachi, Pakistan. 4 witnesses were examined to depose about subsidiary circumstances. 14 witnesses were panch witnesses. 4 medical officers were examined to prove the post- mortem reports as well as the certificates of injuries. 25 Police Officers including two investigating officers were also examined. 5 other witnesses were examined on different points. A large number of documents were produced by the prosecution.

28.  Sabiul Hasan (PW-15) was the owner of the Maruti car bearing registration No. MH-03-H-1759 which was stolen. He had lodged a complaint to that effect on 30th January, 1999. The evidence of PW-20, who is a panch witness, established recovery of the car on 25th June, 1999. Accused No. 4 led police to a garage situated opposite to Chhagan Mitha Petrol Pump where the car was given for repair. Manager of petrol pump PW-17 stated that on 5th February, 1999 Accused No. 4 had brought one white car bearing No. BLD 1949 for certain repairs and servicing. He did not take back the car immediately, although he was informed that the repairing and servicing had been completed. He visited the petrol pump later on. A card was prepared by him making certain noting regarding the number of the car, the repairs done to it, the name of the customer and his telephone number etc. A note was also made in the card stating "Do not take again for servicing". He, however, did not know Accused No. 4 earlier. He saw and identified Accused No.4 for the first time in the court on 31st March, 2000. However, the identification of Accused No. 4 was found to be doubtful.

29.  The Special Court, Mumbai by its judgment and order dated 05.09.2000 acquitted Accused Nos. 2 and 3 and recorded judgment and order of conviction and sentence against the other six accused which are as under:- "I (a) The Accused No. 1 Mohammed Farooq Chipa Rangari is found guilty and convicted of an offence punishable under Section 3(2) of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred as "M.C.O.C. Act, 99") read with section 120-B I.P.C. and is sentenced to Rigorous Imprisonment for ten years and to pay fine in the sum of Rs.5 lakhs. In default of payment of fine he shall undergo R.I. for three years.

(b) The Accused No.1 is also found guilty and convicted of an offence punishable under section 3(4) of M.C.O.C. Act 99 read with section 120-B I.P.C. and is sentenced to R.I. for ten years and shall also pay fine in the sum of Rs.5 lakhs. In default of payment he shall under go R.I. for three years.

(c) The Accused No.1 is further held guilty and convicted for an offence punishable under Section 212 read with section 52-A read with section 120-B I.P.C. and is sentenced to Rigorous Imprisonment for five years and shall also pay a fine in sum of Rs.5000/-. In default of payment of fine he shall undergo R.I. for six months.

(a) The Accused No. 4 Mansur Hasan Haji Iqbal Pankar is found guilty and convicted of an offence punishable under Section 3(2) of M.C.O.C. Act 99 read with Section 120-B I.P.C. and is sentenced to R.I. for ten years and to pay fine in the sum of Rs.5 lakhs. In the default of payment of fine he shall undergo R.I. for three years.

(b) The Accused No.4 is further held guilty and convicted of an offence punishable under Section 3(4) of M.C.O.C. Act 99 read with Section 120-B I.P.C. and is sentenced to R.I. for ten years and shall pay fine in sum of Rs.5 lakhs. In default of payment of which he shall undergo R.I. for three years.

(c) The Accused No.4 is also found guilty and convicted of an offence punishable under Section 411 read with Section 120-B I.P.C. and is sentenced to suffer R.I. for two years and shall pay a fine in sum of Rs.5000/-. In default of payment of fine he shall undergo R.I. for six months. V. (a) The Accused No. 5 Mohd. Zuber Kasam Shaikh is found guilty and convicted for an offence punishable under Section 302 I.P.C. read with Section 3(1)(i) of M.C.O.C. Act 99 read further with Section 120-B further read with Section 34 I.P.C. for causing murder of:-

(i) Shri Milind Gunaji Chaudhary, aged 34 years.

(ii) Shri Vilas Gopinath Akre, aged 28 years (iii) Shri Deepak Sitaram Akre, aged 30 years And is hereby sentenced to death. He shall be hanged by neck till he dies.

(b) (i) The Accused No. 5 is also found guilty and is convicted for an offence punishable under Section 27(3) read with Section 7 of the Arms Act 1959 and is hereby sentenced to death. He shall be hanged by neck till he dies.

(ii) The Accused No. 5 is also found guilty and convicted of an offence punishable under Section 25(1-A) read with Section 7 of the Arms Act and is sentenced to R.I. for ten years and payment of fine of Rs.5000/-. In default of payment of fine he shall undergo R.I. for one year.

(c) The Accused No.5 is also found guilty and convicted for an offence punishable under Section 307 I.P.C. read with Section 3(i) (ii) of the M.C.O.C. Act 99 read further with Section 34 and Section 120-B I.P.C. for attempted murder of Ex mayor and sitting corporator of Bombay municipal corporation Shri Milind Dattaram Vaidye, aged 35 years and is sentenced to R.I. for life and payment of fine of Rs.5 lakhs. In default of payment of fine he shall undergo R.I. for three years.

(d) The Accused No. 5 is also found guilty and convicted for an offence punishable under Section 326 read with section 120-B I.P.C. read with Section 34 I.P.C. and further read with Section 3(i) (ii) M.C.O.C. Act 99 for causing grievous hurt to- (i) Shri Nischal Krishan Choudhari aged 27 years (ii) Shri Vinay Narayan Akre and is hereby sentenced to R.I. for ten years and payment of fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo R.I. for three years.

(e) The Accused No. 5 is also convicted for an offence punishable under section 324 I.P.C. read with section 34 and 120-B I.P.C. read further with section 3(1)(ii) of M.C.O.C. Act 99 and is sentenced to suffer R.I. for five years and shall pay fine in the sum of Rs.5 lakhs for causing fire arm injuries by dangerous weapons with pistols and AK-56 rifle to- (i) Shri Babu Kashinath Mangela, aged 40 years.

(ii) Shri Niteen Narayan, aged 43 years.

(iii) Shri Murguan V. Tewar, aged 26 years In default of payment of fine he shall undergo R.I. for one year.

(f) The Accused No.5 is also convicted of an offence punishable under section 3(2) M.C.O.C. Act 99 read with Section 120-B I.P.C. and is sentenced to suffer R.I. for life and to pay fine in the sum of Rs.5 lakhs. In default of payment of fine he shall undergo R.I. for three years.

(g) The Accused No.5 is also convicted of an offence punishable under section 3(4) M.C.O.C. Act 99 read with section 120-B I.P.C. and is sentenced to suffer R.I. for life and also pay fine in the sum of Rs.5 lakhs. In default of payment of fine he shall undergo R.I. for three years.

VI. The Accused No.6 Fazal Mohd. Shaikh @ Manni Argamutu Shetiyar is found guilty and- (a) Convicted for an offence punishable under Section 302 I.P.C. read with section 3(1)(i) of M.C.O.C. Act 99 read with Section 34 and section 120-B I.P.C. for causing murder of- (i) Shri Milind Gunaji Chaudhari, aged 34 years (ii) Shri Vilas Gopinath Akre, aged 28 years (iii) Shri Deepak Sitaram Akre, aged 30 years.

And is hereby sentenced to death. He shall be hanged by neck till he dies.

(b) (i) Convicted for an offence punishable under section 27(3) read with section 7 of the The Arms Act 1959 read with section 120-B I.P.C. and is hereby sentenced to death. He shall be hanged by neck till he dies.

(iii) also convicted for an offence punishable under section 25(1-A) of the Arms Act and is sentenced to R.I. for ten years and payment of fine in the sum of Rs.5000/-, and in default of payment of fine to undergo further R.I. for one year.

(c) Convicted for an offence punishable under Section 307 I.P.C. read with Section 3(1)(ii) of the M.C.O.C. Act 99 read further with Section 34 and 120-B I.P.C. for attempted murder of Ex-Mayor and sitting Corporator of Bombay Municipal Corporation Shri Milind Dattaram Vaidya aged 35 years and sentenced to R.I. for life and shall pay fine in the sum of Rs.5 lakhs and in default of payment of fine to undergo further R.I.

for three years.

(d) Convicted for an offence punishable under Section 3(2) of the M.C.O.C. Act 99 read with section 120-B I.P.C. for facilitating the organized crime and is sentenced to suffer R.I.

for life and to pay fine in the sum of Rs.5 lakhs and in default of payment of fine to undergo further R.I. for three years.

(e) Convicted for an offence punishable under Section 326 read with section 34 and section 120-B I.P.C. further read with Section 3(i)(ii) of the M.C.O.C. Act 99 for causing grievous hurt to- (i) Shri Nischal Krishna Choudhari aged 27 years (ii) Shri Vinay Narayan Akre, aged 31 years. and is sentenced to undergo R.I. for ten years and payment of fine in the sum of Rs.5 lakhs and in default of payment of fine to undergo R.I. for two years.

(f) also convicted for an offence punishable under Section 324 I.P.C. read with Section 3(1)(ii) of M.C.O.C. Act 99 read further with Section 34 and 120-B I.P.C. for causing fire arm injuries to persons namely- (i) Shri Babu Kashinath Mangela, Aged 40 years.

(ii) Shri Niteen Narayan, aged 43 years (iii) Shri Murguan V. Tewar, aged 26 years.

and is hereby sentenced to R.I. for five years and shall pay fine in the sum of Rs.5 lakhs and in default of payment of fine to undergo R.I. for one year.

VII. The Accused No. 7 Azizuddin Zahiruddin Shaikh @ Abdul Sattar is found guilty and- (a) Convicted for an offence punishable under Section 302 read with section 3(1)(i) of the M.C.O.C. Act 99 read further with section 34 and 120-B I.P.C. for causing murder of- (i) Shri Milind Gunaji Chaudhari, aged 34 years.

(ii) Shri Vilas Gopinath Akre, aged 28 years (iii) Shri Deepak Sitaram Akre, aged 30 years. and is hereby sentenced to death. Accused No. 7 shall be hanged by neck till he dies.

(b) (i) Convicted for an offence punishable under section 27(3) read with Section 7 of the Arms Act, 1959 and is hereby sentenced to death. He shall be hanged by neck till he dies.

(ii) Also convicted under section 25(1-A) of the Arms Act for possession of AK-56 rifle prohibited arms and is sentenced to suffer R.I. for ten years and payment of fine in the sum of Rs.5,000/- and in default of payment of fine to undergo R.I. for one year.

(c) Convicted of an offence punishable under Section 307 I.P.C. read with section 3(i) (ii) of M.C.O.C. Act 99 further read with section 34 and 120-B I.P.C. for attempted murder of Ex- Mayor and sitting Corporator of Bombay Municipal Corporation Shri Milind Dattaram Vaidya, aged 35 years and is sentenced to undergo R.I. for life and payment of fine in the sum of Rs.5 lakhs and in default of payment of fine to undergo R.I. for three years.

(d) Convicted for an offence punishable under Section 326 read with section 120-B I.P.C. further read with Section 3(i) (ii) of M.C.O.C. Act 99 for causing grievous hurt to-- (i) Shri Nischal Krishan Choudhari, aged 27 years (ii) Shri Vinay Narayan Akre, aged 31 years.

and is sentenced to suffer R.I. for ten years and payment of fine in the sum of Rs.5 lakhs and in default of payment of fine to undergo further R.I. for two years.

(e) Convicted for an offence punishable under section 324 I.P.C. read with section 3(1)(ii) of M.C.O.C. Act read further with section 34 and 120-B I.P.C. for causing fire arms injuries to persons namely, (i) Shri Babu Kashinath Mangela, Aged 40 years (ii) Shri Niteen Narayan Akre, aged 43 years (iii) Shri Murguan V. Tewar, aged 26 years and is hereby sentenced to R.I. for five years and shall pay fine in the sum of Rs.5 lakhs. In default of payment of fine he shall undergo R.I. for one year.

(f) Convicted of an offence punishable under Section 3(4) of the M.C.O.C. Act read with Section 120-B I.P.C. and is sentenced to R.I. for life and fine in the sum of Rs.5 lakh and in default of payment of fine to further undergo R.I. for three years.

VIII. The Accused No. 8 Abul Bande Hansan Mistry is found guilty and -- (a) Convicted of an offence punishable under Section 302 read with section 34 I.P.C. read with Section 3(1)(i) of M.C.O.C. Act 99 read further with section 109 read with section 120-B I.P.C.

and is sentenced to undergo R.I. for life and shall pay fine in the sum of Rs.1 lakh and in default of payment of fine to undergo R.I. for three years.

(b) Convicted of an offence punishable under Section 307 I.P.C. read with section 3(1)(ii) of M.C.O.C. Act 99 read with Section 34, 109 and 120-B I.P.C. for attempted murder of Shri Milind Dattaram Vaidya, aged 35 years and is sentenced to R.I. for life and shall pay fine in the sum of Rs.5 lakhs and in default of payment of fine to undergo further R.I. for three years.

(c) Convicted under section 326 I.P.C. read with section 3(1)(ii) of M.C.O.C. Act 99 read with section 34 I.P.C. for causing grievous hurt to - (i) Shri Nischal Krishna Choudhari, aged 27 years.

(ii) Shri Vinay Narayan, aged 31 years and is sentenced to undergo R.I. for ten years and payment of fine in the sum of Rs.5 lakhs and in default of payment of fine to undergo further R.I. for two years.

(d) Convicted also for an offence punishable under Section 324 read with (34, 109) and 120-B I.P.C. read with section 3(1)(ii) of M.C.O.C. Act 99 for causing fire arm injuries caused to-- (i) Shri Babu Kashinath Mangela, Aged 40 years, (ii) Shri Niteen Narayan, aged 43 years (iii) Shri Murguan V. Tewar, aged 26 years.

and is sentenced to R.I. for five years and fine in the sum of Rs.5 lakhs and in default of payment of fine to suffer R.I. for six months.

(e) Convicted for an offence punishable under section 201 I.P.C. read with section 120-B I.P.C. and is sentenced to R.I.

for five years and shall pay fine in the sum of Rs.5,000/- and in default of payment of fine to undergo further R.I. for six months.

(f) Convicted for an offence punishable under Section 424 IPC and is sentenced to R.I. for two years.

(g) Convicted for an offence punishable under section 414 I.P.C. and is sentenced to suffer R.I. for three years."

As regards fine, the Special Judge directed :- "Thirty percent of the amount of total fine if recovered shall be paid towards compensation payable under section 357 Cr.

P.C. to family members of three victims in 1/3 share for each victim who were died. This is without prejudice to their rights to recover compensation independently at Civil Law.

Twenty percent of the amount of total fine if recovered be paid as compensation payable under section 357 Cr. P.C. to each of the of the injured, Viz.

(i) Shri Milind Dataram Vaidya (ii) Shri Nischal Krishna Choudhari (iii) Shri Vinay Naryan Akre in equal shares. This is without prejudice to their right to recover compensation at Civil law.

Fifty percent of the amount of total fine if recovered appropriate by State of Maharahstra towards defrayal of costs/expenses of the prosecution properly incurred."

30.  Feeling aggrieved by the aforesaid judgment and order dated 05.09.2000 passed by the Special Court, Mumbai Accused No. 7 filed Criminal Appeal No. 661 of 2000; Accused Nos. 1, 5 and 6 preferred a common appeal which was registered as Criminal Appeal No.679 of 2000; Accused No. 8 filed Criminal Appeal No. 753 of 2000; and Accused No. 4 filed Criminal Appeal No. 758 of 2000 in the High Court of Bombay. The State of Maharashtra did not prefer any appeal against the aforesaid judgment and order of acquittal of Accused Nos. 2 and 3. So far as the death sentence imposed by the Special Judge against Accused Nos. 5, 6 and 7 is concerned, the matter was referred to the High Court for confirmation which was registered as Confirmation Case No. 1 of 2001.

31.  The Division Bench of the High Court by its impugned judgment and order dated 17.12.2003 confirmed the conviction of Accused No. 1 under Section 3(2) of MCOCA read with Section 120-B IPC and under Section 3(4) of MCOCA read with Section 120-B IPC and acquitted him of the charges under Section 212 read with Section 52A and Section 120-B IPC. The appeal filed by Accused No. 4 was dismissed and his conviction and sentence on all counts were confirmed. So far as Accused Nos. 5 and 6 are concerned, they have been acquitted of all the charges by the High Court. Though conviction of Accused No. 7 was confirmed under Sections 302 read with Section 34, 120-B of IPC read with Section 3(1)(i) of MCOCA, his death sentence was substituted by rigorous imprisonment for life plus a fine of Rs.24,000/- and in default thereof, simple imprisonment of one year was imposed. His conviction under Sections 304 read with Section 34, 120B IPC read with Section 3 (1) (ii) MCOCA; 326 read with Section 120B IPC read with 3 (1) (ii) MCOCA; 324 read with Section 34, 120B IPC read with Section 3 (1) (ii) MCOCA and Section 3(4) of MCOCA read with Section 120B IPC was maintained. Conviction and sentence of Accused No. 8 was also maintained.

32.  Aggrieved by the aforesaid judgment and order dated 17.12.2003 passed by the High Court of Bombay Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No.1), Mansoor Hasan Haji Iqbal Pankar (Accused No. 4) and Abdul Hasan Bande Hasan Mistri (Accused No. 8) have filed Criminal Appeal No. 85 of 2006, Criminal Appeal No. 86 of 2006 and Criminal Appeal No. 87 of 2006 respectively. Azzizuddin Zahiruddin Shaikh alias Abdul Sattar (Accused No.7) had preferred a special leave petition being SLP (Crl.) No. 1469 of 2004 which stood dismissed on 8th April, 2004.

33.  The State of Maharashtra has also filed Criminal Appeal Nos. 91-94 of 2006 against the acquittal of Accused No.1 of the charges under Section 212 read with Section 52 (A) and Section 120-B IPC; acquittal of accused Nos. 5 and 6 of all the offences and substitution of sentence from death to life of Accused No. 7 by the High Court.

34.  Accused Nos. 5 and 6 were not being represented before us. We, therefore, requested Dr. Rajeev B. Masodkar, Advocate, to represent them as amicus curiae. It is necessary to place on record that two of the aforesaid accused have jumped the bail and are absconding.

35.  Having dealt with the facts leading to the initiation of the criminal proceedings and having given a detailed account of the trial held against all the accused persons, we have set out the nature of the orders of convictions and sentences passed by the trial court as also the orders passed by the High Court on the appeals filed before it by the accused persons. Accused Nos. 1, 4 and 8 as well as the State of Maharashtra filed cross appeal in this Court. All the aforesaid appeals were listed before us for final hearing upon which we heard the learned counsel appearing for the respective parties extensively. Some of the submissions of the learned counsel appearing for the parties were overlapping and, therefore, we are going to set out the said submissions of the learned counsel broadly. We, however, deal with the appeals filed by the accused persons in respect of each of the accused and the State separately for the purpose of convenience.

36.  The broad submissions of the counsel appearing for the accused persons mainly center around the confessional statements of Accused Nos. 8 and 4 having been retracted subsequently, the same are inadmissible not only against the co- accused but also against the accused who allegedly have made some confessional statements particularly with regard to the making of such confessional statements which fact was not put in their examination under Section 313 of Criminal Procedure Code, 1973 (for short `CrPC').

37.  It was submitted that no credence should have been placed on the Test Identification Parade (for short `TIP') held in respect of Accused Nos. 4, 5, 6, 7 and Accused No. 8 particularly when they were arrested on different dates i.e. Accused No. 4 was arrested on 21.06.1999, Accused Nos. 5 and 6 were arrested on 18.06.1999, Accused No. 7 was arrested on 15.06.1999 and Accused No. 8 was arrested on 21.07.1999. TIP was held on 10.08.1999 after inordinate delay in as much as in case of Accused No. 4 it was held after 50 days, in case of Accused Nos. 5 and 6 it was held after 53 days, in case of Accused No. 7 it was held after 55 days and in case of Accused No. 8 it was held after 19 days. Therefore, in that view of the matter the said TIP has been rendered inadmissible in evidence and should not and cannot be relied upon for the purpose of convicting the accused persons.

38.  Another submission which was very forcefully placed before us was that the confessional statements cannot be the basis of conviction in the present cases as the said confessional statements which were proved in the instant case did not contain the mandatory certificate as mentioned under Rule 15 of Maharashtra Control of Organized Crime Rules, 1999 (for short `the MCOC Rules'). Rule 15 of the MCOC Rules requires a certificate to be attached with the confessional statement but the same apparently is not a part of the record in the instant case thereby rendering the confessional statement as invalid. The mandatory certificate contained the warning which are admittedly not proved in the trial and the same having been not proved, all the confessional statements lost its sanctity and, therefore, could not have been the basis of any conviction.

39.  It was submitted that the basic ingredients for a conviction under MCOCA were not made out in any of the cases. It was further submitted that there are a number of major and vital contradictions in the evidence of the witnesses produced on behalf of the prosecution in support of its case. It was pointed out that the incident admittedly happened during the night time and it was a case of sudden happening as alleged by the prosecution itself and, therefore, none of the accused could have been identified in such a short span of about few seconds. Since the identity of the accused persons could not be established and there are a number of vital contradictions in the evidence of the prosecution witnesses, the accused persons are liable to be acquitted.

40.  The next contention was that the recovery of weapon alleged to have been used by Accused No. 7 was made from an open space i.e. the hutment roof of a house in a slum hutment, which was accessible to all for which Accused No. 7 could not have been held responsible as the weapon was not in his exclusive possession. It was submitted that there cannot be any conviction and sentence under the provisions of Arms Act in as much as the sanction order which was issued was illegal and vitiated and the recovery of the weapons allegedly at the instance of the accused persons are also not in accordance with law rather in violation of the same.

41.  The learned counsel appearing for the State of Maharashta, however, refuted all the aforesaid contentions and submissions and submitted that all the ingredients of the offences alleged against each of the accused were fully established in the present case and, therefore, the only punishment which should have been given to the accused persons is the capital punishment for carrying out the daredevil attack and for killing innocent persons. It was submitted that there are substantive and clinching evidence available on record against all the accused persons and, therefore, the High Court was not justified in converting the capital punishment awarded to the accused-appellants i.e., Azzizuddin Zahiruddin Shaikh alias Abdul Sattar (Accused No. 7) to that of life imprisonment, acquitting Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No. 1) of the charges under Section 212 read with Section 52(A) and Section 120-B IPC and acquitting Accused Nos. 5 and 6.

42.  It was submitted by the learned counsel appearing for the State that necessary warnings were given to the accused persons before recording their confessional statements but part one of the said statements which contained warning was misplaced and, therefore, the same could not be brought on record. The said confessional statements were recorded in accordance with the required formalities and after giving proper warning to the accused person which fact is proved by the police officer recording such statements and also by the stenographers who recorded the said statements. It was further submitted that there could be some minor irregularities while recording the aforesaid statements but the same would not in any manner vitiate the trial. Besides, reference was made by the counsel appearing for the Government of Maharashtra to Section 15 of MCOCA and placing reliance on the same he submitted that the said section contained a non- obstante clause and, therefore, it cannot be held that the confessional statements were not recorded in accordance with law.

43.  Learned counsel appearing for the State pointed out that the submissions of the learned counsel appearing for the appellants that the sanction order is vitiated is not borne out from the record as the sanction order passed by the competent authority was a detailed order and not a mechanical order as sought to be suggested by the accused persons. He submitted that the weapons used by the various accused is proved and established by the prosecution witnesses and injury caused to the deceased and the injured tally substantially with the medical report and, therefore, the accused persons should have been convicted and sentenced to the maximum punishment provided in law. He further submitted that the order of acquittal passed by the High Court in respect of Accused Nos. 5 and 6 namely Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu and Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar is liable to be set aside for which the State has filed an appeal against the order of acquittal which should be allowed and the said accused-appellants should be convicted and sentenced to the maximum punishment.

44.  In the light of the aforesaid submissions of the counsel appearing for the parties we have scrutinized the entire records and the relevant provisions of law applicable to the case at hand.

Section 2 (1) (e) of the MCOCA defines "organsied crime" as follows: - "(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;"

Section 3 of the MCOCA reads as follows: - "Section 3 - Punishment for organised crime (1) Whoever commits an offence of organised crime shall.- (i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac;

(ii) in any other case, 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 liable to a fine, subject to a minimum fine of rupees five lacs.

(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx"

Section 3 of the Arms Act, 1959 reads as follows:

"Section 3 - Licence for acquisition and possession of firearms and ammunition [(1)] No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:

Provided that a person may, without himself holding a licence, carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.

[(2) Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry at any time, more than three firearms:

Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station, or subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section.

(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.

(4) The Provisions of sub-section (2) to (6) (both inclusive) of section 21 shall apply in relation any deposit of firearms under the proviso to sub-section (2) as they apply in relation to the deposit of any arms or ammunition under sub-section (1) of that section.]"

Section 7 of the Arms Act, 1959 reads as follows:

"Section 7 - Prohibition of acquisition or possession, or of manufacture or sale of prohibited arms or prohibited ammunition No person shall-- (a) acquire, have in his possession or carry; or (b) [use, manufacture,] sell, transfer, convert, repair, test or prove; or (c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof;

any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf."

Section 25 - Punishment for certain offences "Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx [(1A)Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (1B) Whoever-- (a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3;or (b) acquires, has in his possession of carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or (c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub- section (2) of section 8 or does any act in contravention of sub- section (1) of that section; or (d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub-section (iii) of clause (a) of sub-section (1) of section 9 applies,acquires, has in his possession or carries any firearm or ammunition in contravention of that section;

(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub- section (1) of section 9; or (f) brings into, or take out of, India, any arm or ammunition in contravention of section 10; or (g) transports any arms or ammunition in contravention of section 12; or (h) fails to deposit arms or ammunition as required by sub- section (2) of section3, or sub-section (1) of section 21;

(i)being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account of the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept;

shall be punishable with imprisonment for a term which shall not be less than 5 [one year] but which may extend to three years and shall also be liable to fine;

Provided that the Court may for any adequate and special reason to be recorded in the judgment impose a sentence of imprisonment for a term of less than 6 [one year]"

Section 35 of the Arms Act, 1959 reads as follows:

"Section 35 - Criminal responsibility of persons in occupation of premises in certain cases Where any arms or ammunition in respect of which any offence under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons, each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being committed by him alone."

45.  Now we propose to deal with the various aspects of the contentions raised in respect of each of the accused persons separately.

46.  We first proceed to deal with the case of Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No. 1) who was arrested on 13.03.1999. Mr. Zafar Sadique, learned counsel appearing for Accused No. 1 very forcefully submitted before us that Accused No. 1 was convicted only on the basis of the confessional statement but there is no corroboration of the said confessional statement. It was also submitted that even no allegation regarding making of any confessional statement was put to the accused when he was examin