1

{ Received on : 03/12/2011 { Registered on : 14/12/2011 MCOC SPECIAL CASE NO.19/2011 { { Decided on : 02/05/2018 { Duration : 6 5 0 { Years Months Days

{ Received on : 21/02/2012 { Registered on : 01/03/2012 MCOC SPECIAL CASE NO.07/2012 { { Decided on : 02/05/2018 { Duration : 6 2 11 { Years Months Days

{ Received on : 05/08/2016 { Registered on : 06/08/2016 MCOC SPECIAL CASE NO.15/2016 { { Decided on : 02/05/2018 { Duration : 1 8 27 { Years Months Days

IN THE COURT OF MCOC SPECIAL JUDGE AT GREATER BOMBAY (Exclusive Special Court constituted for the cases under MCOCA/TADA/POTA AND OTHER SESSIONS CASES against the accused­Rajendra Sadashiv Nikalje @ Chhota Rajan)

MCOC SPECIAL CASE NO.19 OF 2011 ALONG WITH MCOC SPECIAL CASE NO.07 OF 2012 ALONG WITH MCOC SPECIAL CASE NO.15 OF 2016 (CNR NO. MHCC02­010849­2011)

The Central Bureau of Investigation, New Delhi (RC1 (S)­2016/SCU.V /SC­II / CBI /New Delhi), [Earlier, the State of Maharashtra, at the instance of Inspector of Police, DCB CID, Mumbai, C.R.No.57/2011, Powai Police Station C.R. No.256/2011] .... Prosecution Versus Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir and 10 ors. .... Accused 2

I N D E X

SR.NO. TOPIC PAGE 1 Prosecution case. 10 2 Points for determination. 21 3 Details of the witnesses examined on behalf of 23 the prosecution. 4 Details of the important documents relied upon 41 by the prosecution. 5 Details of the documents relied upon by the 53 Defence. 6 Discussion regarding point no.1 (Homicidal 53 death). 6­A Objections regarding the recovery of the lead 67 (Article­247) from the body of J.Dey. 7 Discussion regarding point nos.2 & 3 (Conspiracy 72 & murder). 7­A Events which took place after the receipt of 73 information of the incident and objections raised by the defence about the registration of the FIR, spot of the incident and the finding of the lead near the spot of the incident, etc. 7­B Objections regarding the arrest of the accused 116 no.1­Rohee Tangappan Joseph @ Satish Kalya, accused no.2­Anil Waghmode & accused no.3­ Abhijit Shinde. 7­C Objections regarding the arrest of the accused 129 no.4­Nilesh Shedge. 7­D Objections regarding the arrest of the accused 131 no.5­Arun Dake, accused no.6­Mangesh Aagvane & accused no.7­Sachin Gaikwad. 7­E Objections regarding the arrest of the accused 137 no.9­Deepak Sisodiya. 7­F Objections regarding the arrest of the accused 138 no.10­Paulson Palitara. 3

7­G Objections regarding the arrest/taking into 141 custody of the accused no.11­Ms.Jigna Vora & accused no.12­Chhota Rajan. 8 Consideration and analysis of the evidence. 9 Law relating to criminal conspiracy. 142 10 Concept of reasonable doubt and benefit of 153 doubt. 11 Roles attributed to each of the accused person. 158 12 Antecedents of the accused persons. 162 13 Confession made by the accused no.5­Arun Dake. 13­A Gist of the confession made by the accused no.5­ 168 Arun Dake. 13­B Assessment of the statements made by the 173 accused no.5­Arun Dake. 13­C Evidence regarding voluntary nature & 176 truthfulness of the confession made by the accused no.5­Arun Dake. 13­D Analysis of the above evidence. 196 13­E Retraction of the confession made by the accused 237 no.5­Arun Dake. 14 Confession made by the accused no.9­Deepak Sisodiya. 14­A Gist of confession made by the accused no.9­ 241 Deepak Sisodiya. 14­B Assessment of the statements made by the 246 accused no.9­Deepak Sisodiya. 14­C Evidence regarding the voluntary nature and 247 truthfulness of the confession made by the accused no.9­Deepak Sisodiya. 14­D Analysis of the above evidence. 272 14­E Retraction of the confession made by the accused 289 no.9­Deepak Sisodiya. 15 Confession made by the accused no.10­ Paulson Palitara. 4

15­A Gist of confession made by the accused no.10­ 292 Paulson Palitara. 15­B Assessment of the statements made by the 295 accused no.10­Paulson Palitara. 16 Extra­judicial confessions made by the accused no.12­Chhota Rajan. 16­A Evidence regarding the various extra­judicial 298 confessions made by the accused no.12­Chhota Rajan. 16­B Analysis of the above evidence. 327 17 Evidence regarding recovery of various mobile 360 phones, SIM cards and other articles during the personal search of the accused persons and recovery of the revolver, cartridges, empties, motorcycles and the Qualis vehicle on the basis of the disclosure statements made by some of the accused persons. 17­A Evidence in the form of CA/Ballistic reports. 369 17­B Evidence in the form of Call Detail Records and 370 use of mobile numbers by the accused persons. 17­C Evidence in the form of CCTV footage. 382 17­D Evidence regarding interception of the phone call 384 made by the accused no.12­Chhota Rajan to PW.90­Manoj Shivdasani. 17­E Evidence regarding report of the voice analysis of 399 the voice sample of the accused no.12­Chhota Rajan. 17­F Evidence regarding visit of J.Dey to London and 401 Philippines. 17­G Evidence regarding visit of J.Dey to the Uma 406 Palace Bar and Restaurant on 07/06/2011. 17­H Evidence of witness who heard the sound of 411 firing. 18 Objections regarding seizure of articles from the person of the accused at the time of their arrest. 5

18­A Objections regarding seizure from the accused 412 no.1­Rohee Tangappan Joseph @ Satish Kalya. 18­B Objections regarding seizure from the accused 419 no.2­Anil Waghmode. 18­C Objections regarding seizure from the accused 420 no.4­Nilesh Shedge. 18­D Objections regarding seizure from the accused 421 nos.5,6 & 7. 18­E Objections regarding recovery of the I­Phones 429 and I­Pad from the accused no.12­Chhota Rajan and the data retrieved from the I­Phone (Article­ 291). 19 Objections regarding recoveries made from the accused persons in view of their disclosure statement. 19­A Objections regarding recovery of the revolver, 437 cartridges and empties from the accused no.1­ Rohee Tangappan Joseph @ Satish Kalya. 19­B Objections regarding recovery of the Qualis 472 vehicle (Article­236) at the instance of the accused no.2­Anil Waghmode. 19­C Objections regarding recovery of the motorcycle 479 (Article­261) and rain­coat (Article­254) at the instance of the accused no.4­Nilesh Shedge. 19­D Objections regarding recovery of the motorcycle 489 (Article­240) at the instance of the accused no.6­ Mangesh Aagvane. 19­E Objections regarding recovery of the motorcycle 498 (Article­233) at the instance of the accused no.7­ Sachin Gaikwad. 19­F Objections regarding recovery of the mobile 507 phone (article­228) and Global roaming SIM card (Article­229) at the instance of the accused no.10­Paulson Palitara. 20 Objections regarding interception of the phone 507 call made by the accused no.12­Chhota Rajan to PW.90­Manoj Shivdasani. 6

21 Objections regarding the CDRs and use of some 508 of the mobile numbers by the accused persons. 22 Analysis of the corroborative evidence. 22­A Analysis of the corroborative evidence with 525 respect to the confession made by the accused no.5­Arun Dake. 22­B Analysis of the corroborative evidence with 536 respect to the various extra­judicial confessions made by the accused no.12­Chhota Rajan. 22­C Analysis of the other corroborative evidence. 540 23 Other submissions made by the Defence. 542 24 Discussion regarding point nos.4 & 5 (Offences 554 under the Arms Act,1959). 25 Discussion regarding point no.6 (Offence under 558 the Bombay Police Act,1951). 26 Discussion regarding point nos.7 to 9 (Offences 561 under the MCOC Act,1999). 27 Discussion regarding point no.10 (Offence 588 u/s.201 of the IPC). 28 Hearing on the point of sentence. 589 29 Operative part of the judgment. 592

(S.S. ADKAR) Date : 02/05/2018 Exclusive Special Court constituted for the cases under MCOCA/TADA/POTA AND OTHER SESSIONS CASES Place : Mumbai against the accused­Rajendra Sadashiv Nikalje @ Chhota Rajan 7

Exh­1714 IN THE COURT OF MCOC SPECIAL JUDGE AT GREATER BOMBAY (Exclusive Special Court constituted for the cases under MCOCA/TADA/POTA AND OTHER SESSIONS CASES against the accused­Rajendra Sadashiv Nikalje @ Chhota Rajan)

MCOC SPECIAL CASE NO.19 OF 2011 ALONG WITH MCOC SPECIAL CASE NO.07 OF 2012 ALONG WITH MCOC SPECIAL CASE NO.15 OF 2016 (CNR NO. MHCC02­010849­2011)

The Central Bureau of Investigation, New Delhi (RC1 (S)­2016/SCU.V /SC­II / CBI /New Delhi), [Earlier, the State of Maharashtra, at the instance of Inspector of Police, DCB CID, Mumbai, C.R.No.57/2011, Powai Police Station C.R. No.256/2011] .... Prosecution

Versus

1) Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, age: 42 years, occupation: Painter, r/o. Nityanand Chawl, Jawahar Nagar, Golibar Road, Khar (E), Mumbai (presently lodged at Mumbai Central Prison).

2) Anil Bhanudas Waghmode, age: 44 years, occupation: Transport Business, r/o. Amboli Naka, Bhendivali Chawl, Chawl no.313, Andheri (West), Mumbai­400 058 (presently lodged at Mumbai Central Prison).

3) Abhijit Kashinath Shinde, age: 32 years, occupation: Nil, r/o. Sion Laxmibaug Kadarbhai Chawl, Room No.105, Mumbai (presently lodged at Mumbai Central Prison). 8

4) Nilesh Narayan Shedge @ Bablu, age: 40 years, occupation: Vegetable vendor and the property broker, r/o. Sion Laxmibaug, behind branch of Shivsena, Kadarbhai chawl, Room No.116, Mumbai­ 400 022 (presently lodged at Mumbai Central Prison).

5) Arun Janardan Dake, age: 35 years, occupation: Service, r/o. Subhashchandra Bose Nagar, Chembur, Lal Dongar, Mumbai­400 071 (presently lodged at Mumbai Central Prison).

6) Mangesh Damodar Aagvane @ Mangya, age: 31 years, occupation: Manager, Delight Galaxy Caterers. r/o. Gyan Ashram, Mahakali Gufa, Opp. Canosa High School, Andheri (East), Mumbai (presently lodged at Mumbai Central Prison).

7) Sachin Suresh Gaikwad, age: 33 years, occupation: Mathadi worker, r/o. Sindhi Society, Chembur, Navjavan Mitra Mandal, Chembur, Mumbai­71 (presently lodged at Mumbai Central Prison).

8) Vinod Gowardhandas Asrani @ Vinod Sindhi @ Vinod Chembur. (Now deceased) – abated.

9) Deepak Dalvirsingh Sisodiya, age: 45 years, occupation: Business, r/o. Jitpurnegi, Rampur Road, Haldvani, Village Jitpur, Dist.Nainital, State : Uttarakhand (presently on bail).

10) Paulson Joseph Palitara, age: 52 years, occupation: Business, r/o. Emma Towers, 101, 15th Road, Behind HDFC Bank, Chembur, Mumbai­400 071 (presently on bail). 9

11) Ms. Jigna Jitendra Vora, age: 42 years, occupation: Healing meditation, r/o. Block No.11, Savita Building, Shrimad Rajchandra Marg, Off Tilak Road, Ghatkopar (E), Mumbai (presently on bail).

12) Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir, age: 61 years, occupation: Business at Australia, r/o. 6/192 & 6/120, Tilak Nagar Colony, Chembur, Mumbai­400 089. (Presently lodged at Tihar Jail, Jail No.2, New Delhi). …. Accused

And

13) Nayansingh Pratapsingh Bista ....Wanted accused no.1

14) Ravi Ram Rattesar ....Wanted accused no.2

CORAM : HIS HONOUR THE SPECIAL JUDGE MCOCA/SUSCA/POTA/NIA/TADA SHRI S.S. ADKAR. (COURT ROOM NO.57)

DATED : 02/05/2018.

SPP Shri P.D. Gharat for CBI/prosecution Advocate Shri S.M. Deshpande for accused nos.1,6 and 7. Advocate Shri Avinash Rasal for accused no.2. Advocate Shri Prakash Shetty for accused nos.5 & 11. Advocate Shri Anshuman Sinha & Advocate Shri Hasnain Kazi for accused nos.3,4 & 12. Advocate Shri Rajendra Rathod for accused nos.9 & 10.

JUDGMENT

1. Before stating anything about the case, this Court deems it fit to first acknowledge the efforts made by the prosecution and the defence to 10 ensure that the trial of this case is completed smoothly and at the earliest. At times, there were situations in this case which had the potential of derailing the trial. But the learned Advocates from both the sides by using their experience and acumen ensured that the trial once started was never derailed and that all the road­blocks were successfully overcome. This Court received full co­operation from the prosecution and the defence. The work ethics and conduct of the learned SPP Shri P.D. Gharat, Advocate Shri Avinash Rasal, Advocate Shri Prakash Shetty, Advocate Shri Anshuman Sinha a/w. Advocate Shri Hasnain Kazi, Advocate Shri Santosh M. Deshpande and Advocate Shri Rajendra Rathod were exemplary.

PROSECUTION CASE 2. All the accused herein are charged of committing the offences punishable u/s.120­B, 302 of the Indian Penal Code (Hereinafter referred to as “IPC”) r/w. sections 3(1)(i), 3(2) & 3(4) of the Maharashtra Control Of Organized Crime Act,1999 (Hereinafter referred to as the “MCOC Act,1999”). Additionally, the accused no.1 is also charged for the offences u/s. 3, 25 & 27 of the Arms Act,1959 and u/s. 37(1­A) & 135 of the Bombay Police Act,1951 (Now known as the Maharashtra Police Act). Similarly, the accused nos.1 to 5, 9 & 10 are also charged for the offence u/s.201 of the IPC.

3. The case of the prosecution is that the accused no.12­Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir (Hereinafter referred to as “Chhota Rajan”) is the head of the Organized Crime Syndicate of which the other accused persons are members. Jyoti Nipendra Kumar Dey @ J.Dey (Hereinafter referred to as “J.Dey”) was a senior Journalist in the daily 'Mid­Day'. He used to report matters relating to the underworld. J.Dey had written several articles against the accused 11 no.12­Chhota Rajan. He had also written two books namely “Zero Dial” and “Khallas” making some negative references to the accused no.12­ Chhota Rajan. J.Dey was in process of getting two more books published, one of which was titled as “Chindi­Rags to Riches” and another book was relating to his arch rival Dawood Ibrahim. As per the prosecution, the book “Chindi­Rags to Riches” was the story of the rise of accused no.12­ Chhota Rajan in the underworld.

4. It is the case of the prosecution that the accused no.12­Chhota Rajan did not like the comments made by J.Dey in some of the articles written and posted by him relating to him. Also, the accused no.12­Chhota Rajan did not like the fact that in the articles written by J.Dey, he was not only shown in bad light but he was also shown to be in a weaker position than his arch rival Dawood Ibrahim. As per the prosecution, the word “chindi” means “to abuse and insult” and such term is used to refer to a person who is below par or of low standard. It is also the further case of the prosecution that in the book “Chindi­Rags to Riches” J.Dey was going to expose the fake patriotism of the accused no.12­Chhota Rajan and his desire to secure himself and amass wealth for his family. The book also proposed to disclose that the accused no.12­Chhota Rajan had no concern for those who gave their lives for his cause. The contents of the said book were somehow leaked and came to the knowledge of the accused no.12­ Chhota Rajan. He then tried to persuade J.Dey to desist from writing anything against him. But J.Dey did not succumb to the pressure exerted by the accused no.12­Chhota Rajan.

5. On 30/05/2011 and 02/06/2011, J.Dey wrote two news articles (Exh.752 colly) against the accused no.12­Chhota Rajan in the daily 'Mid­ Day'. These stories were titled as “DID RAJAN PLAN HIT ON KASKAR?” 12 and "FEARING D­GANG BACKLASH... RAJAN GANGSTERS OFF TO 'PILGRIMAGES'”. These articles infuriated the accused no.12­Chhota Rajan. As the accused no.12­Chhota Rajan feared that if he was portrayed in such a manner he would loose his hold and influence in the underworld and that the Society will stop fearing him thereby adversely affecting his illegal activities which would ultimately cause financial loss to him, a conspiracy was hatched at his instance to eliminate J.Dey.

6. In pursuance of the conspiracy, the accused no.12­Chhota Rajan contacted the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. Thereafter, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya roped in the accused nos.2 to 7 for completing the task. After that, on the instructions of the accused no.12­Chhota Rajan he went to Chembur and collected Rupees Two lacs and one global roaming SIM card from an unknown person. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya took the accused no.2­Anil Waghmode, the accused no.3­Abhijit Shinde and the accused no.4­Nilesh Shedge along with him to Nainital. From there, he obtained two revolvers and cartridges from the accused no.9­Deepak Sisodiya and the wanted accused no.1­Nayansingh Bista.

7. On the instructions of the accused no.12­Chhota Rajan, on 07/06/2011, the deceased accused no.8­Vinod Asrani called J.Dey and PW.73­Sanjay Prabhakar to the Uma Palace Bar and Restaurant, Mulund for the identification of J.Dey by the accused no.2­Anil Waghmode and the accused no.5­Arun Dake and accordingly, the identity of J.Dey was fixed. Thereafter, on 09/06/2011, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.2­Anil Waghmode kept a watch on J.Dey near his Office for confirmation of the target. On 10/06/2011, the accused nos.1 to 7 kept a watch on the house of the mother of J.Dey at Ghatkopar 13

(W) but they did not find J.Dey there. Therefore, they tried to find J.Dey near his Office. But J.Dey was not found there also.

8. On 11/06/2011, when the accused nos.1 to 7 were again keeping a watch on the house of the mother of J.Dey at Ghatkopar (W), they saw J.Dey there in the afternoon. When J.Dey went out on his motorcycle, they followed him on three motorcycles and one Qualis vehicle. At about 03:00 pm, when J.Dey was driving his motorcycle and when he was near the gate of Crisil House Building, Hiranandani Garden, Powai, Mumbai and when J.Dey reached near the D'Mart Shopping Mall at Powai, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya who was the pillion rider on the motorcycle which was being driven by the accused no.5­Arun Dake fired one round at J.Dey. When J.Dey stopped his motorcycle, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya fired four more rounds at J.Dey from his revolver. Thereafter, all of them fled from that spot on their respective vehicles. J.Dey was rushed to the Hiranandani Hospital, Powai where he was declared brought dead.

9. At about 03:00 pm to 03:30 pm, PW.1­Sandip Shikhre who was working an Assistant to PI (Law and Order), Police Station, Powai received a telephonic information about the incident and he intimated this fact to PW.2­PI Tivatane who was attached to the Police Station, Powai. PW.2­PI Tivatane made the station diary entry (Exh.294) about the receipt of the information and then proceeded towards the spot along with PW.137­PSI Rane. In the meantime, PW.3­Prakash Vaval and PW.85­HC Kashinath Jadhav, who were assigned the duty as Beat Marshals in that area, on receiving telephonic information about the incident from one Shri Kishor Bhosle who was working as an orderly of the Senior PI, Police Station, Powai went to the spot and ensured that the spot of the incident 14 was secured by keeping the general public away from the spot. When PW.2­PI Tivatane and PW.137­PSI Rane reached the spot, they came to know that J.Dey was taken to the Hiranandani Hospital, Powai with the help of security guards PW.23­Sanjay Singh and PW.24­Zakirullah Qureshi of the Hiranandani area. After instructing PW.3­Prakash Vaval not to permit the general public to come near the spot, both of them went to the Hiranandani Hospital, Powai where they were informed by the Doctor that J.Dey had expired (brought dead) before he could be admitted in the Hospital. On seeing the bullet marks on the body of J.Dey, PW.2­PI Tivatane, directed PW.137­PSI Rane to record the FIR. Accordingly, the FIR (Exh.290) bearing crime no.256/2011 was registered with the Police Station, Powai against unknown persons. On the directions of PW.2­PI Tivatane, the inquest panchanama (Exh.305) was drawn by PW.137­PSI Rane in presence of panch PW.5­Girish Mishra and Shri Prakash Wadkar who were called for. PW.8­Bhushan Kumar was called to the Hospital for taking the photographs (Exh.489 colly) of the dead body of J.Dey. PW.137­PSI Rane seized the clothes which J.Dey was wearing at the time of the incident and other articles found on his person vide seizure panchanama (Exh.306). Thereafter, PW.2­PI Tivatane and PW.137­PSI Rane returned to the spot along with one person by name Javed Ahmed Mohd. Ibrahim Ansari who showed the spot to them. The spot­cum­seizure panchanama (Exh.1377) was prepared, PW.137­PSI Rane seized the Pulsar motorcycle of J.Dey (Article­39), the lead (Article­215) which was found near the spot, the helmet of J.Dey (Article­36) etc.. After the proceedings on the spot were complete, PW.2­PI Tivatane and PW.137­PSI Rane returned to the Police Station, Powai and a station diary entry (Exh.295) was made regarding the above mentioned proceedings.

10. On the next day, i.e. on 12/06/2011, the investigation was 15 transferred to Crime Branch in view of the gravity of the offence and the case was re­numbered as crime no.57/2011 of Crime Branch, Mumbai. PW.141­PI Gosavi and PW.142­API Datir were the Investigating Officers and PW.133­API Gopale, PW.134­PI Pasalwar and PW.136­PI Shripad Kale assisted in the investigation.

11. During the course of the investigation, on 26/06/2011, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, the accused no.2­Anil Waghmode and the accused no.3­Abhijit Shinde were arrested by PW.136­ PI Kale. On the day same day, the accused no.4­Nilesh Shedge was arrested by PW.133­API Gopale and the accused no.5­Arun Dake, the accused no.6­Mangesh Aagvane & the accused no.7­Sachin Gaikwad were arrested by PW.134­PI Pasalwar. Various mobile phones and SIM cards were seized from the person of the accused nos.1,2,4 to 7. In view of the disclosure statement made by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya the revolver, 20 cartridges and 5 empties which were used in the crime were recovered. Similarly, in view of the disclosure statements made by the accused nos.2,4,6 and 7, the motorcycles and the Qualis vehicle used by the accused nos.1 to 7 at the time of the incident were also recovered. Also, the interrogation of the accused nos.1 to 7 revealed that the crime in question was an organized crime which was committed at the instance of the accused no.12­Chhota Rajan who was absconding at that time. During the course of the investigation, the deceased accused no.8­Vinod Asrani was arrested on 02/07/2011 by PW.133­API Gopale.

12. During the investigation, it was also revealed that the deceased accused no.8­Vinod Asrani had called J.Dey for dinner at Uma Palace Bar, Mulund on 07/06/2011 at about 08:30 pm to facilitate his identification 16 by the accused persons for the purpose of eliminating him. Similarly, the accused no.9­Deepak Sisodiya and the wanted accused no.1­Nayansigh Bista had provided the revolver and bullets to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya thereby facilitating the organized crime of committing murder of J.Dey. It was revealed that the accused no.10­ Paulson Palitara had provided global SIM cards and Rs.2 Lacs to the members of the Organized Crime Syndicate for facilitating their communication with each other and particularly with the accused no.12­ Chhota Rajan and for financing and facilitating the activities of the Organized Crime Syndicate. It was also revealed that the accused no.11­ Ms.Jigna Vora had provided important information about J.Dey such as his photograph, motorcycle number, addresses and timing etc., to the accused no.12­Chhota Rajan for facilitating his identification for the commission of his murder.

13. During the course of the investigation, the statement of witnesses including the witnesses to whom the accused no.12­Chhota Rajan had made extra­judicial confession were recorded, confessional statements of the accused nos.5,9 & 10 u/s.18 of the MCOC Act,1999 were recorded, the CDRs of the mobile numbers and the mobile phones used in committing the offence were collected and the Test Identification Parade was held. The revolver, cartridges and the empties recovered at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and other seized articles were sent for chemical/ballistic analysis.

14. As prima facie, it was a case of an organized crime committed by the Organized Crime Syndicate of the accused no.12­Chhota Rajan, the proposal for approval was forwarded to the Competent Authority (Joint Commissioner of Police, Brihan Mumbai) by PW.142­API Datir for 17 invoking the provisions of the MCOC Act,1999. Accordingly, on 07/07/2011, the approval u/s.23(1) of MCOC Act,1999 (Article­285) was granted by the Competent Authority (Joint Commissioner of Police, Brihan Mumbai) for the prosecution of the accused persons for the offences under the MCOC Act,1999 and on the same day, the investigation of the case was transferred to PW.143­ACP Duraphe. After PW.143­ACP Duraphe took over the investigation, the accused no.9­Deepak Sisodiya was brought to Mumbai from Nainital and after interrogation he was arrested on 22/07/2011. The accused no.10­Paulson Palitara was arrested on 05/09/2011 by PW.133­API Gopale and the accused no.11­Ms.Jigna Vora was arrested on 25/11/2011 by PW.143­ACP Duraphe. In view of the disclosure statement made by the accused no.10­Paulson Palitara, one mobile and one Global roaming SIM card was recovered. The sanction u/s.23(2) of the MCOC Act,1999 (Exh.250) was issued by PW.149­CP Patnaik on 13/10/2011. The necessary sanction (Exh.252) under the Arms Act,1959 was also granted by PW.154­DCP Smt.Sheela Sail. After the arrest of the accused no.11­Ms.Jigna Vora, fresh sanction u/s.23(2) of the MCOC Act,1999 (Exh.251) was issued by PW.149­CP Patnaik.

15. After the investigation was completed, the charge­sheet u/s.173(2) of the Cr.P.C.,1973 came to be filed against the accused nos.1 to 12. That case was registered as MCOC Special Case no.19/2011. Thereafter, the further investigation was carried out in so far as the accused no.11­ Ms.Jigna Vora was concerned and the supplementary charge­sheet was filed against her. That case was registered as MCOC Special Case no.07/2012.

16. It may be noted that the accused no.12­Chhota Rajan was arrested in October 2015 at Bali, Indonesia and then he was brought to India and 18 lodged at Tihar Jail, New Delhi in connection with Case No.RC.7(A)/2015/SCU.V/SC­II/CBI/New Delhi. On 06/01/2016, the Hon'ble Lt.Governor, New Delhi passed order u/s.268 Cr.P.C.,1973 by which the accused no.12­Chhota Rajan was directed not to be moved out of the Tihar Jail, New Delhi on the ground there was a threat to his life.

17. At this stage, it is necessary to state that prior to the arrest of the accused no.12­Chhota Rajan, this matter was being dealt with by the regular MCOC Court. The then learned Presiding Officer had framed charge against the accused nos.1 to 7 and 9 to 11 vide Exh.208. They had pleaded not guilty and claimed to be tried. As the accused no.8 had expired, the proceedings as against him stood abated. After framing the charge, six witnesses were examined by the prosecution. But thereafter, as the accused no.12­Chhota Rajan came to be arrested in October 2015, the trial could not proceed for some time. After the accused no.12­Chhota Rajan was brought to India from Bali, Indonesia the State of Maharashtra thought it proper to constitute a Special Court for dealing with all the cases in which the accused no.12­Chhota Rajan was allegedly involved as there were many cases registered against him. Also, the State of Maharashtra was of the view that all the matters involving the accused no.12­Chhota Rajan should be transferred to the CBI for further investigation. Accordingly, vide notification dated 29/01/2016 this Special Court was constituted for dealing with all the cases under MCOC/TADA/POTA/SESSIONS involving the accused no.12­Chhota Rajan. This Special Court started functioning from 01/02/2016. Similarly, all the cases under MCOC/TADA/POTA/SESSIONS registered against the accused no.12­Chhota Rajan were transferred to the CBI for further investigation. 19

18. The accused no.12­Chhota Rajan was taken in judicial custody in connection with this case on 07/01/2016 and thereafter, the further investigation was carried out u/s.173(8) of Cr.P.C.,1973. During the further investigation, one Ravi Ram Rattesar who was earlier identified as a prosecution witness by the DCB, CID was arrayed as the wanted accused no.2. After the further investigation was completed, the supplementary charge­sheet was filed against the accused no.12­Chhota Rajan. That case was registered as MCOC Special Case no.15/2016.

19. It may be noted that by the order dated 07/07/2017 a non­bailable warrant was issued against the wanted accused no.2­Ravi Ram Rattesar for securing his presence. But his presence could not be secured. Therefore, by the order dated 31/07/2017, a standing non­bailable warrant was issued against him. Thereafter, proclamation was issued against him on 10/10/2017. But the wanted accused no.2­Ravi Ram Rattesar failed to appear before this Court. As such, a red corner notice was issued against him. Thereafter, the location of the wanted accused no.2­Ravi Ram Rattesar was traced at UAE and the extradition proceedings were initiated against him. But till the time of this judgment he was not brought to India.

20. After the prosecution filed the supplementary charge­sheet against the accused no.12­Chhota Rajan on 05/08/2016, this Court framed the charge against him for the offences u/s. 120­B, 302 & 109 of the IPC r/w. 3(1)(i), 3(2) & 3(4) of the MCOC Act,1999 vide Exh.438. On explaining the charge in vernacular, the accused no.12­Chhota Rajan pleaded not guilty and claimed to be tried.

21. It may also be noted that after the charge was framed against the 20 accused no.12­Chhota Rajan an opportunity was granted to him and to all the other accused to cross­examine the witnesses who were examined earlier. Accordingly, some of the witnesses were recalled and cross­ examined.

22. The prosecution has examined 155 witnesses and relied upon various documents. The prosecution closed its evidence by filing pursis (Exh.1548). Thereafter, the statement of the accused nos.1 to 7, 9 to 12 u/s.313(b) of Cr.P.C.,1973 was recorded vide Exhs.1567 to 1571, Exh.1577, Exh.1578, Exh.1572, Exh.1573, Exh.1576 and Exh.1591 respectively. In addition, the accused persons were directed/permitted to file written statement u/s.313(5) of Cr.P.C.,1973 in order to ensure that complete opportunity is given to them to explain any circumstance appearing in evidence against them. But only the accused nos.1,2 and 3 filed their written statements (Exh.1567­A, Exh.1568­A and Exh.1573­A respectively). The remaining accused persons made a statement that they did not want to file any written statement. This fact has been recorded in the roznama dated 29/01/2018 & 31/01/2018.

23. Heard both sides. The learned SPP and the learned Advocates for the defence have orally advanced their arguments in detail. By filing written notes of arguments they have also raised certain other points. This Court has perused the written notes of arguments filed on behalf of the prosecution (Exh.1691) and on behalf of the accused nos.1,6 and 7 (Exh.1702), the accused nos.3 and 4 (Exh.1707 and 1708), the accused nos.5 and 11 (Exh.1677 and 1711) and the accused no.12 (Exh.1705). In view of the provisions of section 172(2) of Cr.P.C.,1973, this Court has also gone through the available Police diaries of this case. Both the sides have relied upon various case laws in support of their arguments. They are 21 being considered at appropriate places in the judgment.

24. In the light of the facts of the case and the submissions made on behalf of the parties, the following points arise for consideration and the findings thereon are recorded as under, for the reasons to follow:

SR.NO. POINTS FINDINGS

1 Whether it is proved that the death of J.Dey was Yes. homicidal?

2 Whether it is proved that the accused nos.1 to 7 Yes. and 9 to 12, the deceased accused no.8 along with Except as the wanted accused nos.1 & 2, agreed to commit against the an illegal act i.e. to commit or caused to be commit accused the murder of J.Dey on 11/06/2011 at about nos.10 & 11. 03:00 pm at Crisil House Building out gate, Hiranandani Garden, Powai and thereby the accused nos.1 to 7 and 9 to 12 have committed an offence u/s.120­B of the IPC?

3 Whether it is proved that the accused nos.1 to 7 Yes. and 9 to 12, the deceased accused no.8 along with Except as the wanted accused nos.1 & 2, in pursuance to the against the above mentioned criminal conspiracy, committed accused nos.9, or caused to be committed the murder of J.Dey on 10 & 11. 11/06/2011 at about 03:00 pm at Crisil House Building out gate, Hiranandani Garden, Powai and thereby the accused nos.1 to 7 and 9 to 12 have committed an offence u/s.302 r/w 120­B of the IPC?

4 Whether it is proved that in furtherance of the Yes. criminal conspiracy and during the course of same transaction the accused no.1 on 11/06/2011 did possess a firearm viz.. revolver without any valid license and thereby the accused no.1 has committed an offence u/s.3 punishable u/s.25 (1­B)(a) of the Arms Act,1959? 22

5 Whether it is proved that in furtherance of the Yes. criminal conspiracy and during the course of same transaction the accused no.1 on 11/06/2011 did use a firearm viz.. revolver without any valid license for committing the murder of J.Dey and thereby the accused no.1 has committed an offence u/s.5 punishable u/s. 27 of the Arms Act,1959?

6 Whether it is proved that in furtherance of the No. criminal conspiracy and during the course of same transaction the accused no.1 on 11/06/2011 did possess firearm viz.. revolver in contravention of the prohibitory order issued on 21/05/2011 by the Office of the Commissioner of Police, Mumbai and the accused no.1 has thereby committed an offence punishable u/s.37(1)(a) r/w. 135 of the Bombay (Maharashtra) Police Act,1951?

7 Whether it is proved that the accused no.12 along Yes. with the accused nos.1 to 7, the accused nos.9 to Except as 11, the deceased accused no.8 along with wanted against the accused nos.1 & 2 being the members of the accused nos.9, Organized Crime Syndicate as defined u/s.2(f) of 10 & 11. the MCOC Act, 1999 headed by the accused no.12 did conspire to continue unlawful activity and to commit organized crime as defined u/s.2(e) of the MCOC Act, 1999 i.e. on 11/06/2011 at about 03:00 pm at Crisil House Building out gate, Hiranandani Garden, Powai, committed murder of J.Dey by using firearm with the objective of gaining pecuniary benefits or gaining undue economic or other advantage and thereby the accused nos.1 to 7 and the accused nos.9 to 12 have committed an offence punishable u/s.3(1)(i) of the MCOC Act,1999?

8 Whether it is proved that the accused nos.1 to 7 Yes. and 9 to 12, the deceased accused no.8 along with Except as the wanted accused nos.1 & 2 conspired, abetted against the and/or facilitated the commission of the aforesaid accused nos. organized crime and/or acts preparatory to 10 & 11. organized crime and thereby the accused nos.1 to 23

7 and 9 to 12 have committed an offence punishable u/s.3(2) of the MCOC Act, 1999?

9 Whether it is proved that the accused nos.1 to 7, Yes. the accused nos.9 to 12, the deceased accused no.8 Except as and the wanted accused nos.1 & 2, during the against the period of 10 years preceding to 11/06/2011 accused nos. formed an Organized Crime Syndicate as defined 10 & 11. u/s.2(f) of MCOC Act, 1999 under leadership of the accused no.12 and the accused nos.1 to 7, accused nos.9 to 12 were members of said Organized Crime Syndicate and thereby the accused nos.1 to 7 and 9 to 12 have committed an offence punishable u/s.3(4) of the MCOC Act, 1999?

10 Whether it is proved that in furtherance of the No. criminal conspiracy and during the course of same transaction the accused nos.1 to 5, 9 and 10 destroyed the mobile phones and SIM card used in the crime with the intention of screening the offender from legal punishment and thereby the accused nos.1 to 5, 9 and 10 have committed an offence punishable u/s.201 of the IPC?

11 What order? As per final order.

REASONS 25. In order to prove its case, the prosecution has examined the following witnesses:

SR. PW NAME EXH. ROLE NO. NO. NO.

1 1 Sandip Rangnath Shikhre 288 Assistant to Police Inspector who received the information about 24

SR. PW NAME EXH. ROLE NO. NO. NO.

the incident on phone and forwarded the said information to the PI, Police Station, Powai. (PW.2)

2 2 Mahavir Neminayh 289 Police Inspector on whose Tivatane information the FIR was registered. (Informant)

3 3 Prakash Ramchandra 297 Day Beat Marshal in whose Vaval presence the lead found near the spot, motorcycle & helmet of J.Dey were seized.

4 4 Bapusaheb Dnyaneshwar 299 Police Officer who deposited the Pawar X­ray plates, 5 bottles & letters and the death certificate of J.Dey given by the Doctor in the Police Station, Powai.

5 5 Girish Ramdhari Mishra 304 Panch witness.

6 6 Suhas Purushottam Joshi 340 He prepared the sketch map of the spot of the incident.

7 7 Ms.Shubha Sharma 479 Wife of J.Dey.

8 8 Bhushan Kumar Singh 488 He took photographs of the dead body of J.Dey.

9 9 Malang Ismail Sheikh 492 Panch witness.

10 10 Habib Jamal Mansuri 503 Panch witness.

11 11 Vikram Gulabchand Jain 511 Panch witness.

12 12 Mohd. Ayub Mohd. Umar 518 Panch witness. Mogal 25

SR. PW NAME EXH. ROLE NO. NO. NO.

13 13 Manik Kapurchand Raja 525 Panch witness.

14 14 Arshad Ahmed Memon 537 His documents were used for obtaining the SIM card of mobile no.9987917765 by the accused no.2.

15 15 Banka Amarnath Gaud 538 His documents were used for obtaining the SIM card of mobile no.9892020185 by the accused no.1. 16 16 Sanjay Shivaji Kamble 544 His documents were used for obtaining the SIM card of mobile no.8652449019 by the accused no.5.

17 17 Siddarth Rajendra Kale 547 He had given the SIM of mobile no.9987017977 to his friend PW.19­Pramod who lost the SIM card and it was used by and seized from the accused no.5.

18 18 Mohd. Abbas Jilani 553 Panch witness.

19 19 Pramod Tukaram Tambe 555 He had taken the SIM of mobile no.9987017977 from his friend PW.17­Siddarth Kale which he then lost and it was used by and seized from the accused no.5.

20 20 Suresh Shivnath Avad 562 Police Officer who filed charge­ sheet in Crime no.3/2005. (previous charge­sheet)

21 21 Ramesh Manohar 570 Police Officer who filed charge­ Pargunde sheet in Crime nos.86/2005 and 87/2005.(previous charge­sheet)

22 22 Narsihn Shrinivas 572 Father­in­law of J.Dey. 26

SR. PW NAME EXH. ROLE NO. NO. NO.

Sharma

23 23 Sanjay Harinarayan 578 One of the security guards of Singh Hiranandani who lifted and placed J.Dey in a car for taking him to the Hospital.

24 24 Zakirullah Karimullah 579 One of the security guards of Qureshi Hiranandani who saw J.Dey being placed in the car.

25 25 Shiva Shukhranjan 583 Journalist who was associated Devnath with J.Dey in his Office.

26 26 Dinesh Pundlik Arekar 593 Officer of the RTO who had given the details of the motorcycle no.MH­02­AN­4648 which was used in the crime.

27 27 Yogesh Ganpat Shitap 594 Engineer from whom the Police had seized the CCTV footage in CDs and the hard disk in which the CCTV footage was recorded.

28 28 Dattatray Tanaji Chavan 599 Owner of the motorcycle no.MH­ 02­AN­4648 which was used in the crime.

29 29 Dnyandev Pandharinath 602 Officer of the RTO who had Sangle given the details of the Toyota Qualis vehicle no.MH­12­CD­ 7701 which was used in the crime.

30 30 Dattatray Raghunath 604 Owner of the motorcycle no.MH­ More 01­AF­8843 which was used in the crime.

31 31 Suresh Sadhu Waghmare 608 Owner of the motorcycle no.MH­ 27

SR. PW NAME EXH. ROLE NO. NO. NO.

06­AH­4891 which was used in the crime.

32 32 Pramod Ratnakar 612 He deposited the seized Chavanke muddemal with the FSL,Kalina for chemical analysis.

33 33 Murtuza Tayyab 615 Accused no.11 had given her Eranpurwala Samsung Galaxy Tab 16 GB model to him for use.

34 34 Chandrashekar Krushna 624 Friend of accused no.10. Awle

35 35 Jacob George 625 Friend of J.Dey.

36 36 Amritpal Gurmeet Singh 626 Friend of J.Dey. Sanotra

37 37 Shaikh Sajid Ibrahim 627 He purchased a Blackberry mobile phone from PW.39­Salih Haji who had purchased it from a lady.

38 38 Vikram Devender Ahuja 628 Friend of accused no.11. He had given the SIM card of mobile no. 9870011000 to her for use.

39 39 Salih Yusuf Haji 632 He purchased a Blackberry mobile phone from a lady which according to the prosecution was the accused no.11.

40 40 Sunil Kumar Mehrotra 637 Reporter to whom accused no.1 had made extra­judicial confession.

41 41 Akash Ashwin Shah 639 His company was approached by J.Dey for publishing a book on 28

SR. PW NAME EXH. ROLE NO. NO. NO.

Dawood Ibrahim.

42 42 Rajan Chandrakant Seth 641 Friend of J.Dey.

43 43 Vilas Ramchander 645 He was informed by the son of Samant the deceased accused no.8 that J.Dey was planning to kill accused no.12 through Dawood Ibrahim & Chhota Shakil.

44 44 Atul Vidyasagar Sharma 646 Friend of J.Dey.

45 45 V.R.Divakaran 647 Friend of J.Dey.

46 46 Ms.Poornima Shriram 650 Colleague of J.Dey who was Swaminathan working along with him on books relating to the accused no.12 and Dawood Ibrahim.

47 47 Ganesh Narayan Rai 655 He was examined to show that accused no.12 used to give threats to people to get his work done and that wanted accused no.2­Ravi Rattesar was his gang member.

48 48 Ravikumar Roopchand 656 He was examined to show that Arora accused no.12 used to give threats to people to get his work done and that wanted accused no.2­Ravi Rattesar was his gang member.

49 49 Prasad Gopal Kotian 657 He was examined to show that accused no.12 used to give threats to people to get his work done and that wanted accused no.2­Ravi Rattesar was his gang 29

SR. PW NAME EXH. ROLE NO. NO. NO.

member.

50 50 Indukumar Shashi Amin 658 Accused no.12 had phoned and abused him.

51 51 Nilesh Dinkar Paradkar 663 Ex­member of the gang of the accused no.12.

52 52 Prashant Laxman 664 Ex­member of the gang of the Deshmukh accused no.12.

53 53 Abbas Ismail Sheikh 670 Panch witness.

54 54 Ashok Rammrut Singh 676 He was working as the Manager of the Uma Palace Bar & Restaurant, Mulund and had seen J.Dey with the deceased accused no.8 in that Bar on 07/06/2011.

55 55 Rajiv Bhaskar Mane 681 He was the original owner of the motorcycle bearing registration no.MH­01­AF­8843 which was used in the crime.

56 56 Dr. Shivaji Vishnu 684 He had seen J.Dey along with Kachare the deceased accused no.8 on 07/06/2011 in the Uma Palace Bar and Restaurant, Mulund.

57 57 Paresh Nanji Rathod 696 Panch witness.

58 58 Pradeep Babubhai 709 Panch witness. Rathod

59 59 Mukesh Madanmohan 713 He was working with the Jet Gupta Airways at the relevant time. He gave the details of the travel of the deceased accused no.8 of 30

SR. PW NAME EXH. ROLE NO. NO. NO.

June 2011.

60 60 Mahesh Tahsildar Singh 717 Watchman of Uma Palace Bar & Restaurant, Mulund who had seen the deceased accused no.8 along with J.Dey in the Uma Palace Bar & Restaurant, Mulund on 07/06/2011.

61 61 Kiran Pandurang 719 He was the driver of the Khandagale deceased accused no.8.

62 62 Ms.Geetanjali Mangesh 721 She was working with the Shirsat Kingfisher Airlines at the relevant time. She gave the details of the travel of the deceased accused no.8 of June 2011.

63 63 Nasiruddin Mohd. Ali 725 Panch witness. Khan

64 64 Deepak Govind Patel 737 He was working with the deceased accused no.8 at the relevant time.

65 65 Abdul Sajid Mustaq 740 He purchased and then sold a Blackberry mobile phone which was allegedly used by the accused no.11.

66 66 Sahil Ramesh Joshi 741 Reporter to whom his colleague (PW.100) had told that the accused no.12 had made extra­ judicial confession to him on phone.

67 67 Pradip Parshuram Kadam 746 He was examined to show that while the deceased accused no.8 31

SR. PW NAME EXH. ROLE NO. NO. NO.

was on bail in another criminal case, he had jumped the conditions of bail and that this witness had filed the application before the concerned Court for the cancellation of his bail.

68 68 Sachin Ramesh Kalbag 751 He was working in the daily 'Mid­Day' at the relevant time. He was interviewed by the 'NDTV India' news channel regarding involvement of the accused no.12 in the present case.

69 69 Santosh Sakharam Desai 755 Police Naik in whose presence the DVD containing the interview of the accused no.12 given to the 'NDTV India' news channel was seized.

70 70 Sunny Jagmohansingh 757 Panch witness. Sidana

71 71 Arvind Vidyasagar 759 Accused no.10 had used his Upadhyaya documents to get the mobile no.9768630692 which was used in the crime.

72 72 Ramjatan Lalta Patel 766 Security guard who was present on the spot at the time of the incident. He had seen J.Dey fallen on the road and saw the assailants fleeing from the spot on their motorcycles.

73 73 Sanjay Prabhakar s/o 767 Press Reporter and friend of Jagdishprasad Mandal J.Dey who had gone along with him to the Uma Palace Bar and Restaurant, Mulund on 32

SR. PW NAME EXH. ROLE NO. NO. NO.

07/06/2011.

74 74 Pramod Bhau Sawant 773 API who intercepted telephonic conversation between the accused no.12 and PW.90­Manoj Shivdasani.

75 75 Jayesh Pundlik Mhatre 782 Technician from whom the Police had seized the CCTV footage of 11/06/2011 (Date of the incident)

76 76 Jitendra Ram Dixit 787 Correspondent to whom the accused no.12 had made extra­ judicial confession on phone.

77 77 Sanjeev Devasia 790 Principal Correspondent of the daily 'Mid­Day' who had published the “first person account” of PW.73­Sanjay Prabhakar regarding his meeting with J.Dey and the deceased accused no.8.

78 78 Sunilkumar 796 Correspondent to whom the Mangalprasad Singh accused no.12 had made extra­ judicial confession on phone.

79 79 Rajesh Sakharam Revale 798 Ward boy of the Hiranandani Hospital who removed the clothes from the dead body of J.Dey and handed over them to the Police.

80 80 Murtuza Yusuf Diwan 802 Friend of accused no.11 who had surrendered the mobile phones and memory card which were used by her to the Police. 33

SR. PW NAME EXH. ROLE NO. NO. NO.

81 81 Nilesh Ranjitbhai Desai 808 The accused no.11 had given a Blackberry mobile phone to his wife.

82 82 Amir Khan 809 Friend of the accused no.10 who was present in the meeting which took place the accused no.10 and the accused no.11 prior to the incident.

83 83 Nishit Harish Chauhatiya 810 Friend of the accused no.10 who arranged for a meeting between him and the accused no.11 prior to the incident.

84 84 Bhaskar Shankar Gode 812 Police Constable in whose presence the CDs containing the CCTV footage of Hiranandani Shopping center of 11/06/2011 (The date of the incident) were seized.

85 85 Kashinath Santu Jadhav 819 Head Constable in whose presence the panchanama regarding finding of an empty lead lying near the spot, motorcycle and the helmet of J.Dey was drawn.

86 86 Balkrushnan Ramaswami 821 He had purchased a second Govendar hand Samsung C5212 mobile phone from a vendor which originally belonged to the accused no.11 and was used by her.

87 87 Nikhil Subash Dixit 826 Journalist to whom the accused no.12 had made extra­judicial confession on phone. 34

SR. PW NAME EXH. ROLE NO. NO. NO.

88 88 Sunil Bhanudas 834 Brother of the accused no.2. He Waghmode was using the mobile phone of the accused no.2 which was used in the crime.

89 89 Girish Kisan Sargar 835 After the incident, he dropped some of the accused persons at a dabha at Mira road in his tempo.

90 90 Manoj Arjun Shivdasani 841 The accused no.12 had spoken with him on phone about the murder of J.Dey.

91 91 Bhaskar Ratan Patole 851 He deposited articles with FSL,Kalina for forensic analysis.

92 92 Ms.Rubina Isral Ansari 852 She gave a SIM card of mobile no.8652580503 to the wife of the accused no.5 and the said SIM card was used by him in the crime.

93 93 Ms.Lata Arun Dake 856 Wife of the accused no.5. She confirmed the fact that PW.92 had given a SIM card to her.

94 94 Suresh Nivrutti Ramraje 858 He deposited articles with FSL,Kalina for forensic analysis.

95 95 Kailas Bhalchandra 859 He deposited X­ray plates and Komlekar Post­mortem report of J.Dey with FSL,Kalina for forensic analysis.

96 96 Prasad Sharad Shah 860 Brother­in­law of the accused no.10 to whom he had given some money for giving it to the wanted accused no.2­Ravi 35

SR. PW NAME EXH. ROLE NO. NO. NO.

Rattesar.

97 97 Sudhakar Premanand 862 He deposited articles with Kokate FSL,Kalina for forensic analysis.

98 98 Sambhaji Shivaji Jagdale 863 Police Havaldar who executed the order promulgated under the Arms Act,1959 prohibiting carrying of weapons at the relevant time.

99 99 Vijay Lakshmikant 864 Brother­in­law of accused no.5. Chauhan He gave the SIM card of mobile number 8652449019 to him for use and the same was used by the accused no.5 in the crime.

100 100 Aariz Chandra 866 Journalist to whom the accused no.12 had made extra­judicial confession on phone.

101 101 Deepak Budhaji Kamble 871 Police Havaldar who along with PW.98 executed the order promulgated under the Arms Act,1959 prohibiting carrying of weapons at the relevant time.

102 102 Sunil Rajaram Raut 877 Friend of accused no.10. The accused no.10 had phoned him from the international mobile number +3444.

103 103 Tukaram Parshuram 879 Police Officer who had produced Dewoolkar the accused nos.5,9 and 10 before the concerned DCP as they wanted to make confession u/s.18 of the MCOC Act,1999.

104 104 Shaikh Shafiullah 880 J.Dey had toured Europe in 36

SR. PW NAME EXH. ROLE NO. NO. NO.

Fakrullah April, 2011 and this witness was the Tour Manager.

105 105 Suhas Bhalchandra Naik 888 PSI who took the accused no.5 to the Office of the DCP for recording his confession and thereafter produced him before the Court of the CMM, Esplanade Court and then before PW.143­ACP Duraphe.

106 106 Vijay Parvatrao Shinde 895 API who took the accused no.9 to the Office of the DCP for recording his confession and thereafter produced the accused before the Court of the CMM, Esplanade Court and then before PW.143­ACP Duraphe.

107 107 Roshan Mahadev Baikar 900 He had given the SIM card of mobile nos. 8652475214 & 9004328040 to the accused no.5 for use and the mobile phone of Samsung company (Art.159) to the accused no.7 for use and all the above articles were used in the crime.

108 108 Shekhar Vinayak Palande 906 Nodal Officer, TATA Tele­ services.

109 109 Rakeshchandra Rambhuj 917 Nodal Officer, Loop mobile Prajapati (India) Ltd.

110 110 Rajesh Sampatrao 935 Nodal Officer, Reliance Gaikwad Communication Ltd.

111 111 Vijay Eknath Shinde 947 Nodal Officer, Idea Cellular Ltd. 37

SR. PW NAME EXH. ROLE NO. NO. NO.

112 112 Amit Rajendra Chauhan 988 Manager of Hotel SV, Haldvani, Dist. Nainital in which some of the accused had stayed prior to the incident.

113 113 Sunil Subashchandra 989 Nodal Officer, Aircel Cellular Tiwari Ltd.

114 114 Anand Sadanand Pawar 1008 Constable who was deputed to find out the details of the subscribers of the mobile nos.9892504897, 9867464129 & 8652490277.

115 115 Laxmikant Narayanrao 1013 PSI who was deputed to bring Salunkhe accused no.10 to the L.T.Marg Police Station and keep him in custody there for giving him time to reconsider his decision to make confession and to produce him before PW.119­ DCP Dalvi on the next day for recording confession.

116 116 Rajesh Shridhar Kadam 1025 He was the superior Officer of the accused no.11 at the relevant time.

117 117 Vishal Kishor Parmar 1027 Panch witness.

118 118 Yogesh Shrikrishna 1031 Nodal Officer, Airtel Ltd. Rajapurkar

119 119 Manohar Uttamrao Dalvi 1061 DCP who recorded the confession of the accused no.10.

120 120 Mukund Gopal Pawar 1084 Police Officer from the cyber cell division who obtained the details of the e­mail IDs of the 38

SR. PW NAME EXH. ROLE NO. NO. NO.

accused no.11.

121 121 Vikas Narayan Phulkar 1091 Nodal Officer, Vodafone Essar Ltd.

122 122 Dr. Mahesh Patil 1159 DCP who had recorded the confession of the accused no.5.

123 123 Aslam Haji Adbul 1200 Panch witness. Rahman Mansuri

124 124 Dr. Cherring Dorje 1211 DCP who recorded the confession of the accused no.9.

125 125 Ganesh Pandharinath 1239 Friend of the accused no.3 and Kharat accused no.5 and the driver of the Qualis vehicle in which the accused nos.1 to 4 had gone to Haldvani, Nainital on 10/05/2011 (prior to the incident).

126 126 Pradeep Pandurang 1246 Panch witness. Shirodkar

127 127 Bhagwansingh Bagsingh 1253 Panch witness. Thakur

128 128 Dr. Sadanand Sangram 1262 Medical Officer who conducted Bhise the Post­mortem of the body of J.Dey.

129 129 Balu Pandit Panchange 1271 Panch witness.

130 130 Dr. Fakruddin Ali Shah 1278 Medical Officer of Hiranandani Hospital, Powai who was the first person to examine the body of J.Dey. 39

SR. PW NAME EXH. ROLE NO. NO. NO.

131 131 Meer Usman Ali 1284 Panch witness.

132 132 Dhananjay Rawat 1293 Panch witness.

133 133 Nandkumar Maruti 1312 API who was associated with the Gopale investigation.

134 134 Shailash Digambar 1320 PI who was associated with the Pasalwar investigation.

135 135 Amitosh Kumar Singh 1343 Sr. Scientific Officer, CFSL,New Delhi who collected the voice sample of the accused no.12­ Chhota Rajan.

136 136 Shripad Balkrishna Kale 1355 Sr. PI who was associated with the investigation.

137 137 Suresh Vasudev Rane 1375 Investigating Officer­PSI, Powai Police Station.

138 138 Dinkar Ganpatrao Bhosle 1385 PI who was associated with the investigation.

139 139 Smt.Nidhi Anil Nandwani 1389 Her voter ID card was used by PW.140 for purchasing the SIM card of mobile no.9690115644.

140 140 Sanjeev Kumar s/o. 1390 He purchased the SIM card of Kalyan Ram the mobile no.9690115644 by using the voter ID card of PW.139. The said mobile number was then used by the accused no.9.

141 141 Pradeep Nivrutti Gosavi 1392 Investigating Officer­PI, Crime Branch, Unit no.10.

142 142 Vilas Wamanrao Datir 1400 Investigating Officer­API Crime 40

SR. PW NAME EXH. ROLE NO. NO. NO.

Branch, Unit no.1.

143 143 Ashok Tukaram Duraphe 1420 Investigating Officer­ACP who conducted the investigation after the provisions of the MCOC Act,1999 were invoked.

144 144 Ms.Leena Pawar 1456 Alternate Nodal Officer, Aircel.

145 145 Chandrashekar Tiwari 1463 Nodal Officer, Airtel, Delhi circle.

146 146 Pradip Singh 1465 Alternate Nodal Officer, Vodafone, Delhi circle.

147 147 Rajeev Kumar Sinha 1469 Inspector, CBI who took the custody of the two I­Phones and one I­Pad of the accused no.12­ Chhota Rajan from another Officer.

148 148 Basil Kerketta 1475 Addnl SP, CBI who forwarded the mobile phones & I­Pad of the accused no.12­Chhota Rajan to FSL,Kalina.

149 149 Arup Mohan Patnaik 1484 Commissioner of Police and the sanctioning authority under the MCOC Act,1999.

150 150 S.S. Kishore 1485 Supdt. Police CBI who registered the FIR (CBI) after the case was transferred to CBI for further investigation. He also made correspondence with the CFSL,New Delhi.

151 151 Vishal Subash Koik 1512 CA, FSL,Kalina. 41

SR. PW NAME EXH. ROLE NO. NO. NO.

152 152 Natram Meena s/o. Late 1528 Investigating Officer, CBI. Mangalram

153 153 Dr. Edward Burns 1543 Forensic Expert, NASSCOM, USA.

154 154 Smt.Sheela Dinkar Sail 1553 DCP who was the Sanctioning Authority under the Arms Act,1959.

155 155 Dr.Rajinder Singh 1565 Director, CFSL,New Delhi who analyzed the voice sample of the accused no.12­Chhota Rajan.

26. The prosecution has relied upon the following important documents:

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE 1 Printed FIR. 290 Not Admitted. 2 Inquest panchanama. (It also shows the 305 Not Admitted. seizure of various articles found on the person of J.Dey) 3 Seizure panchanama of the clothes which 306 Not Admitted. J.Dey was wearing at the time of incident. 4 Spot map/sketch. 341 & Not Admitted. 342 5 Photographs of dead body J.Dey. 489 colly. Not Admitted. 6 Personal search & arrest panchanama of 493 Not Admitted. accused nos.1,2,3. 7 Personal search & arrest panchanama of 504 Not Admitted. accused nos.5,6,7. 8 Personal search & arrest panchanama of 512 Not Admitted. 42

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE accused no.4. 9 Seizure panchanama of hard disk of the 519 Not Admitted. CCTV which was installed near the spot of the incident. 10 Seizure panchanama of DVD regarding the 526 Not Admitted. news item reported on NDTV. 11 Seizure panchanama regarding seizure of 527 Admitted. laptop (Notebook) of J.Dey from PW.7. 12 Seizure panchanama of the passport of J.Dey. 528 Admitted. 13 Seizure panchanama of laptop (Acer 529 Admitted. company) of J.Dey and a hard­disk from PW.7. 14 Xerox copy of the driving license along with 545 Not Admitted. the photograph of PW.16. 15 Personal search & arrest panchanama of 554 Not Admitted. accused no.10­Paulson Palitara. 16 Charge­sheet in Crime no.3/2005. 563 Not Admitted. 17 Charge­sheet in Crime no.86/2005. 571 Not Admitted. 18 Seizure panchanama of the CD containing a 598 Admitted. news item which was aired on 'IBN LOKMAT' channel on 27/06/2011. 19 Form showing the details of the Toyota 603 Not Admitted. Qualis vehicle no. MH­12­CD­7701 received from the RTO, Andheri. 20 Registration card, insurance cover note, 605­A Not Admitted. Form­28, Form­29, Form­30, tax invoice of (colly.) the motorcycle no. MH­01­AF­8843. 21 Registration certificate of motorcycle no. MH­ 609 Not Admitted. 06­AH­4891 & original tax paid receipt. (colly.) 22 Forwarding letters to the FSL,Kalina. 270 to Not Admitted. 276 23 Letter issued by PW.38 to Sr. Inspector of 629 Not Admitted. Police, DCB CID, Crime Branch, Crawford Market. 24 Seizure panchanama of mobile phone of 671 Not Admitted. PW.107 which was given to him by the 43

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE accused no.5. 25 Report of Test Identification Parade of 228 Exh. as per accused nos.1,2,5. S.291­A of Cr.P.C. 26 CA/FSL reports. 230­248, Exh. as per S. 1305, 293 of Cr.P.C. 1306 27 Sanction orders u/s.23(2) of the MCOC 250, 251 Exh. in view of Act,1999 for prosecution. the judgment in AIR 2010 SC 1451. 28 Sanction order u/s.39 of the Arms Act,1959 252 Exh. in view of for prosecution. the judgment in AIR 2010 SC 1451. 29 Personal search & seizure panchanama of 694 Admitted. mobile phone seized from the accused no.11. 30 House search and seizure panchanama of 695 Admitted. Mac Book laptop from the accused no.11. 31 Seizure panchanama of the 3 mobile phones 701 Not Admitted. and a memory card which the accused no.11 had given to PW.80. 32 Seizure panchanama of the hard­disk 710 Not Admitted. recovered from the computer kept on the table of the accused no.11 in her Office. 33 Documents showing the travel details of the 713, 723 Not Admitted. deceased accused no.8. 34 Letter issued by PI­Shri Kadam to deceased 720 Not Admitted. accused no.8 stating that if he wished to leave the limits of Mumbai he should seek permission of the Court. 35 Personal search and seizure panchanama of 731 Not Admitted. the deceased accused no.8 regarding seizure of 4 mobile phones and cash amount. 36 Application for cancellation of bail of the 747 Not Admitted. deceased accused no.8 in MCOC case no.8/06 & 7/07. 44

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE 37 Letter issued by the deceased accused no.8 to 748 Admitted. the IO in MCOC case no.7/07 informing him about his proposed visit for pilgrimage. 38 Original newspaper reports published in the 752 Not Admitted. daily 'Mid­Day' dated 30/05/2011 & (colly.) 02/06/2011. 39 Panchanama regarding seizure of DVD 756 Not Admitted. regarding the interview given by the accused no.12 to 'NDTV India' news channel. 40 Spot panchanama of the place near the Uma 758 Not Admitted. Palace Bar & Restaurant, Mulund. 41 CD containing the record of conversation 777, 778 Not Admitted. between PW.90 and the accused no.12 along with the certificate u/s.65B of the Evidence Act,1872. 42 Transcript of conversation between accused 776 Not Admitted. no.12 and PW.90. 43 Letter dated 11/01/2012 issued by Addl.CP 774 Not Admitted. (Crime) to PW.143 regarding forwarding of the CDs containing recording of the intercepted call between the accused no.12 and PW.90. 44 Order dated 04/08/2011 issued by the 775 Not Admitted. Addnl. Chief Secretary (Home) u/s.5(2) of the Indian Telegraph Act, 1885 permitting interception of telephonic communication and SMS to and from the mobile no.9820048533. 45 Certificate u/s.65B of the Evidence Act,1872. 778 Not Admitted. 46 CD containing CCTV footage of Crisil House 784 Not Admitted. of 11/06/2011 between 02:30 pm to 03:00 pm. 47 Printout of the blog created by PW.76 in 788 Not Admitted. which he had written about the extra­judicial confession made by the accused no.12 to him on phone. 48 Article written by PW.77 and published in the 791 Not Admitted. 45

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE daily 'Mid­Day' dated 07/07/2011 on the basis of information given to him by PW.73 regarding his meeting with deceased accused no.8 and J.Dey. 49 CD containing the news aired on 'NDTV 797 Not Admitted. India' news channel about the extra­judicial confession made by the accused no.12 to PW.78. 50 Panchanama of the CDs containing the CCTV 813 Not Admitted. footage of Hiranandani Shopping center of the date of the incident i.e.11/06/2011. 51 Signature of PW.92 on the Consumer 853 Not Admitted. Application form for getting SIM card. 52 Signature of PW.92 on the xerox copy of 854 Not Admitted. Voter ID card (another copy is produced by the defence). 53 Station diary extracts. 872, 882, Not Admitted. 883, 891, 892 54 Covering letter with details of mobile 907, 910 Not Admitted. no.8655292230 & 8097959843 given by PW.108 to the Police. 55 Certificate dated 08/07/2011 u/s.65B of the 908, 911 Not Admitted. Evidence Act,1872 regarding CDR & Cell ID of mobile no.8655292230 & 8097959843. 56 CDR & Cell ID location of mobile 909, 912 Not Admitted. no.8655292230 & 8097959843. 57 Covering letter with details of mobile no. 918, 921, Not Admitted. 9773916609 & IMEI no. 354865047936636 924 & IMEI no. 358252041238002 given by PW.109 to the Police. 58 Certificate dated 02/07/2011 & 11/07/2011, 919, 922, Not Admitted. 04/10/2011 u/s.65B of the Evidence 925 Act,1872 regarding CDR & Cell ID of mobile no. 9773916609, 447924557108, & IMEI no. 358252041238002. 59 CDR & Cell ID location of mobile no. 920, 923, Not Admitted. 46

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE 9773916609 & IMEI no. 354865047936636 926 and mobile no. 447924557120. 60 Covering letter with details of mobile no. 929, 930 Not Admitted. 9870011000 & certificate dated 29/11/2011 u/s.65B of the Evidence Act,1872 given by PW.109 to the Police. 61 CDR of mobile no. 9870011000 given by 931 Not Admitted. PW.109 to the Police. 62 Covering letter with details of mobile no. 932, 933 Not Admitted. 9870488388 & certificate dated 12/12/2011 u/s.65B of the Evidence Act,1872 given by PW.109 to the Police. 63 CDR of the mobile no. 9870488388. 934 Not Admitted. 64 Covering letter with details of mobile nos. 936, 937 Not Admitted. 9323971133 & 9320816594 & certificate dated 30/07/2011 u/s.65B of the Evidence Act,1872 given by PW.110 to the Police. 65 CDR of mobile no. 9323971133 & 938, 939 Not Admitted. 9320816594. 66 Covering letter with details of mobile no. 940, 941 Not Admitted. 9324088888 & certificate dated 30/07/2011 u/s.65B of the Evidence Act,1872 given by PW.110 to the Police. 67 CDR of mobile no. 9324088888. 942 Not Admitted. 68 Covering letter with details (CDR) of mobile 943 Not Admitted. handset bearing IMEI no. 354865047936636 and mobile no. 447924557108 given by PW.110 to the Police. 69 Covering letter with details of mobile no. 948, Art­ Not Admitted. 9743193148 & certificate dated 30/06/2011 X­111 u/s.65B of the Evidence Act,1872 given by PW.111 to the Police. 70 CDR of mobile no. 9743193148. 949, Not Admitted. Art.X­122 71 Covering letter with details of mobile no. 950, 951 Not Admitted. 8108521329 & 8652475214 & certificate dated 20/07/2011 u/s.65B of the Evidence 47

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE Act,1872 given by PW.111 to the Police. 72 CDR of mobile nos. 8108521329 & 953, 955 Not Admitted. 8652475214. 73 Covering letter with details of mobile nos. 956, 964 Not Admitted. 8652580503, 8652449019, 8652490277 & certificate dated 01/08/2011 u/s.65B of the Evidence Act,1872 given by PW.111 to the Police. 74 CDR of mobile nos. 8652580503, 958, 961, Not Admitted. 8652449019, 8652490277. 963 75 Covering letter with details of mobile no. 965, 966 Not Admitted. 9702873102 & certificate dated 20/07/2011 u/s.65B of the Evidence Act,1872 given by PW.111 to the Police. 76 CDR of mobile no. 9702873102. 968 Not Admitted. 77 Covering letter with details of mobile no. 969, Art. Not Admitted. 9690115644 & certificate dated 26/07/2011 X­118 u/s.65B of the Evidence Act,1872 given by PW.111 to the Police. 78 CDR of mobile no. 9690115644. Art.X­119 Not Admitted. 79 Covering letter with details of mobile no. Art.X­120 Not Admitted. 9743193148 & certificate dated 04/07/2011 & Art.X­ u/s.65B of the Evidence Act,1872 given by 121 PW.111 to the Police. 80 Covering letter with details of mobile no. 970, 971 Not Admitted. +447924557108 and mobile handset bearing IMEI no. 354865047936630 & certificate dated 23/08/2011 u/s.65B of the Evidence Act,1872 given by PW.111 to the Police. 81 CDR of mobile no. +447924557108. 972 Not Admitted. 82 Covering letter with details of mobile no. 1423, Not Admitted. +447924557108 and mobile handset bearing Art.X­124 IMEI no. 354865047936636 & their CDR. 83 Covering letter with details of use of mobile 973 Not Admitted. no. +447924557108 in mobile handset bearing IMEI no. 354865047936630 given by PW.111 to the Police. 48

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE 84 Covering letter with details of mobile no. 974, 975 Not Admitted. 9594802961 & certificate dated 12/12/2011 u/s.65B of the Evidence Act,1872 given by PW.111 to the Police. 85 CDR of mobile no. 9594802961. 976 Not Admitted. 86 List of Cell IDs and their corresponding 986, 985 Not Admitted. physical addresses along with certificate dated 26/06/2011 u/s.65B of the Evidence Act,1872 filed by PW.111 in the Court. 87 Covering letter with details of mobile no. 990, Not Admitted. 9768114422, 9768408325, 8898590024, 1071 8898590018, 9768302009 given by PW.113 to the Police along with certificate u/s.65B of Evidence Act,1872. 88 Customer Application forms produced by 1070 Not Admitted. PW.113. 89 CDR of mobile no. 9768114422. 991 Not Admitted. 90 CDR of mobile no. 9768408325. 992 Not Admitted. 91 CDR of mobile no. 8898590024. 994 Not Admitted. 92 CDR of mobile no. 8898590018. 995 Not Admitted. 93 CDR of mobile no. 9768302009. 996 Not Admitted. 94 Covering letter with details of mobile handset 1424, Not Admitted. bearing IMEI no. 35825041238002 & 1425 certificate dated 13/10/2011 u/s.65B of the Evidence Act,1872, CDR given by PW.113 to the Police. 95 Covering letter with details of mobile no. 997, Not Admitted. 9768630692 given by PW.113 to the Police 1073 along with certificate u/s.65B of Evidence Act,1872. 96 CDR of mobile no. 9768630692. 998 Not Admitted. 97 List of Cell IDs and their corresponding 1074 Not Admitted. physical addresses. 98 Covering letter with details of mobile nos. 1032, Not Admitted. 9892020185, 9987017977, 7738622113, 1033 9967210526, 9004850894, 9967844960, 49

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE 9004328040, 9892504897, 9892044665 given by PW.118 to the Police and certificate u/s.65B of Evidence Act,1872. 99 CDR of mobile nos. 989020185, 1034, Not Admitted. 9987017977, 7738622113, 9967210526, 1035, 9004850894, 9967844960, 9004328040, 1036, 9892044665, 9892504897. 1037, 1038, 1039, 1040, 1041, 1042 100 Covering letter with details of mobile no. 1043, Not Admitted. 96118999645 given by PW.118 to the Police 1044 and certificate u/s.65B of Evidence Act,1872. 101 CDR of mobile no. 96118999645. 1045 Not Admitted. 102 Covering letter with details of mobile nos. 1046, Not Admitted. 9867464129, 9967016654, 9987917765 1047 given by PW.118 to the Police and certificate u/s.65B of Evidence Act,1872. 103 CDR of mobile nos. 9867464129, 1048, Not Admitted. 9967016654, 9987917765. 1049, 1050 104 Covering letter with details of mobile no. 1051, Not Admitted. 7709131255 given by PW.118 to the Police 1052 and certificate u/s.65B of Evidence Act,1872. 105 CDR of mobile no. 7709131255. 1053 Not Admitted. 106 Covering letter with details of mobile no. 1054, Not Admitted. 7738409480 given by PW.118 to the Police 1055, and certificate u/s.65B of Evidence Act,1872. 1057 to 1059 107 CDR of mobile no. 7738409480. 1056 Not Admitted. 108 Confession made by the accused no.10­ 1064, Not Admitted. Paulson Palitara along with the 1066, memorandum. 1067 109 Certificates u/s.65B of Evidence Act,1872 1092, Not Admitted. regarding the call details and sending of 1092­A 50

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE scanned copies of customer application forms of the mobile nos. 9769276691, 8879140112, 9920227609, 9833625491. 110 Customer Application form of the subscriber 1094, Not Admitted. of mobile nos. 9769276691, 9920227609, 1097, 98333625491. 1099 111 CDR of mobile nos. 9769276691, 1093, Not Admitted. 8879140112, 9920227609, 98333625491. 1095, 1098, 1100 112 Certificates u/s.65B of Evidence Act,1872 1102, Not Admitted. regarding the Call details and sending of 1102­A scanned copies of customer application forms of the mobile nos. 9820597404, 9920088888. 113 Customer Application form of the subscriber 1101, Not Admitted. of mobile nos. 9820597404 and 1104 9920088888. 114 CDR of mobile nos. 9820597404, 1103, Not Admitted. 9920088888. 1105 115 Certificates u/s.65B of Evidence Act,1872 1106 Not Admitted. regarding the call details and sending of (colly) scanned copies of customer application forms of the mobile no. 9833726717. 116 Customer Application form of the subscriber 1107 Not Admitted. of mobile no. 9833726717 (PW.89). 117 CDR of mobile no. 9833726717. 1108 Not Admitted. 118 Certificates u/s.65B of Evidence Act,1872 1109 Not Admitted. regarding the call details and sending of (colly) scanned copies of customer application forms of the mobile no. 9820047058. 119 CDR of mobile no. 9820047058. 1110 Not Admitted. 120 Certificates u/s.65B of Evidence Act,1872 1111 Not Admitted. regarding the call details of the mobile no. +447924557108 and IMEI no. 354865047936636. 121 CDR of mobile no. 7924557108. 1112 Not Admitted. 51

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE 122 Certificate u/s.65B of Evidence Act,1872 1125, Not Admitted. regarding the call details of the mobile no. 1126, 9819582444, Customer Application form & 1124 CDR. 123 Customer Application form of mobile no. 1127, Not Admitted. 9930900303, certificate u/s.65B of Evidence 1128, Act,1872 & CDR. 1129 124 Certificate u/s.65B of Evidence Act,1872 1133 Not Admitted. regarding the call details of mobile nos. 9820048533 & 9167272555. 125 Customer Application form and CDR of 1135, Not Admitted. mobile no. 9820048533. 1131 126 Customer Application form and CDR of 1136, Not Admitted. mobile no. 9167272555. 1132 127 Customer Application form, certificate 1139, Not Admitted. u/s.65B of Evidence Act,1872 and CDR of 1137, mobile no. 9619516963. 1140 128 Certificate u/s.65B of Evidence Act,1872 and 1141, Not Admitted. CDR of mobile no. 9819784449. 1145 129 Confession made by the accused no.5­Arun 1162­ Not Admitted. Dake along with the memorandum. A,B,C 130 Disclosure statement/ panchanama made by 1201, Not Admitted. the accused no.10. 1203 131 Disclosure statement/ panchanama made by 1204, Not Admitted. the accused no.7. 1205 132 Confession made by the accused no.9 along 1214, Not Admitted. with the memorandum. 1217 133 Disclosure statement/ panchanama made by 1247, Not Admitted. the accused no.2. 1248 134 Disclosure statement/ panchanama made by 1254, Not Admitted. the accused no.6. 1254­A 135 Forwarding letter issued by the Senior PI, 1263 Not Admitted. Police Station, Powai to the Head, Forensic Science Dept., J.J.Medical College for Post­ mortem of the body of J.Dey. 136 Sketch map indicating the places of injury on 1264 Not Admitted. 52

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE the body of J.Dey. 137 Post­mortem report of the body of J.Dey. 1265 Not Admitted. 138 Cause of death certificate of J.Dey. 1266 Not Admitted. 139 Disclosure statement/ panchanama made by 1272, Not Admitted. the accused no.1. 1272­A 140 Disclosure statement made by the accused 1285 Not Admitted. no.4. 141 Memorandum in connection with recording 1296 Not Admitted. of voice sample of accused no.12. 142 Report of voice analysis of accused no.12. 1304 Exh. in view of provisions of section 293 of Cr.P.C. 143 Seizure panchanama of mobile phone seized 1316 Not Admitted. from the accused no.2. 144 Spot panchanama. 1377 Not Admitted. 145 Seizure panchanama of the mobile phones 1406 Not Admitted. seized from PW.33. 146 Seizure panchanama of the mobile phone 1407 Not Admitted. seized from PW.86. 147 Certificate u/s.65B of Evidence Act,1872 and 1425 Not Admitted. CDR of handset having IMEI no. colly 358252041238002. 148 Customer application form of mobile no. 1464 Not Admitted. 9987700111 registered in the name of the wanted accused no.2­Ravi Ram Rattesar. 149 Customer application form of mobile no. 1503 Not Admitted. 9675778971 registered in the name of PW.139­Ms.Nidhi Nandwani. 150 Memorandum regarding taking custody of 1470 Not Admitted. the two I­Phones and one I­Pad of the accused no.12 after he was brought to India. 151 Report issued by PW.152­Dr.Edward Burns 1544 Not Admitted. from NASSCOM, USA regarding the matching of the motorcycles used in the incident with the relevant CCTV footage. 53

SR. DOCUMENT EXH. ADMITTED/ NO. NO. NOT ADMITTED BY DEFENCE 152 Statement of PW.90­Manoj Shivdasani 1601 Not Admitted. recorded u/s. 164 of Cr.P.C.,1973 153 Statement of the accused no.5,9 and 10 1617 Not Admitted. recorded by the learned CMM, Esplanade colly., Court after their confession was recorded. 1421, 9 colly.

STAND TAKEN BY THE DEFENCE 27. The stand taken by the defence is of false implication. The defence did not examine any witness in support of the stand taken by them but has relied upon the following documents:

SR. DOCUMENT EXH. NO. 1 Printouts (47 nos.) of the Articles which were written 584 (colly) by J.Dey. 2 E­mail sent by PW.46 to ShriSharma of Jaico publishing 651 house. 3 Xerox copy of Voter ID card of PW.92. 855 4 Extract of station diary entry. 889 5 Medical certificates, ECG report, requisition for ECG of 1220, 1221, the accused no.9. 1228, 1229 6 Carbon copy of the Post­mortem report of the body of 1265­A J.Dey. 7 Report issued by PW.130 indicating case history of the 1268 body of J.Dey and the sketch map indicating points of injury on the body. 8 Printout of blogs written by PW.76 1369 (colly)

AS TO POINT NO.1 [HOMICIDAL DEATH] 28. In order to prove that the death of J.Dey was homicidal, the 54 prosecution has relied upon the evidence of PW.130­Dr. Fakruddin Ali Shah who had examined the body of J.Dey when it was brought to the Hiranandani Hospital, Powai immediately after the incident and PW.128­ Dr. Sadanand Bhise of J.J. Hospital who conducted the Post­mortem of the body of J.Dey.

29. PW.130­Dr. Fakruddin Ali Shah was an M.B.B.S., EPDHA (Executive Program in Diploma in Hospital Administration). It has come in his evidence that he was practicing in medicine since the year 2004. He deposed that on 11/06/2011, at about 03:10 pm, two commandos of Hiranandani brought the body of J.Dey to the casualty ward of the Hiranandani Hospital. He deposed that body had multiple penetrative injuries on the left side. He deposed that he noticed injuries on the chest, arm and the back side of the body. He deposed that he found the following injuries on the body:

i) 1.5 X 0.4 cm penetrating injury below the left nipple.

ii) 0.5 X 0.5 cm penetrating injury on left upper arm near the anterior axillary fold.

iii) Two penetrating injuries of dimensions 0.5 X 0.5 cm near the left anterior posterio of upper arm.

iv) Three penetrating injuries of dimensions 0.5 X 0.5 cm around each other on the left posterior aspect of the arm on the upper 2/3rd portion of the arm.

v) 0.5 X 0.5 cm penetrating injury around the lateral chest wall below the axilla.

vi) 0.5 X 0.5 cm penetrating injury on the left side of the posterior aspect of the chest. 55

30. He deposed that the pulse and blood pressure were not felt, body temperature was afebrile (cold), there was no respiration, no peripheral pulse was felt, there was no sound of heart, the pupils were not reactive and were dilated, there was no sound of breath, there was no response to painful stimuli (CNS) and on the foot (Planter), there was no cardiac response. He deposed that accordingly he prepared the case history along with a sketch map (Exh.1268 colly.) indicating all the above facts and the location of the injuries. He deposed that the OPD & IPD form and the deposition form (Exh.1280 colly.) were also prepared by him.

31. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that the injury no.5 mentioned in the case history was on the lateral chest wall and the injury no.6 was in the back. He stated that there was one injury on the back. He stated that the injury no.1 which was below the left nipple was on the alvoli (below the brown portion around the nipple).

32. In cross­examination on behalf the accused nos.5 and 11, he stated that he had declared J.Dey dead at around 03:16 pm. He stated that J.Dey was declared dead on the basis of the ECG report (Exh.1279). He stated that all the injuries of the injury nos.3 and 4 were roughly of same size. He stated that he could not say whether the three injuries of injury no.4 were caused by one blow/impact or several blows/impacts. He stated that as he was not an expert he could not say by looking at the injuries whether they were caused by one weapon or several weapons.

33. PW.128­Dr. Sadanand Bhise was a M.D. (Forensic Medicine). It has come in his evidence that in the year 2011 he was having one and half years experience as an Assistant Professor. He deposed that on 11/06/2011, when he was on duty, at about 08:30 pm, PW.137­PSI Rane, 56

PSI Todkar and PN Number 9925 from Police Station, Powai brought the dead body of J.Dey for Post­mortem from the Dr.L.H.Hiranandani Hospital along with the forwarding letter (Exh.1263). He deposed that along with the forwarding letter (Exh.1263), he also received the inquest panchanama (Exh.305), accidental death report (ADR) and the declaration given by the Hiranandani Hospital regarding the death of J.Dey. He deposed that as per the inquest panchanama (Exh.305) and the ADR report the Police had given the history of alleged firearm injuries to J.Dey on 11/06/2011.

34. He deposed that before conducting the Post­mortem, four X­rays (Article 241­A, Article 241­B, Article 241­C and Article 241­D) were taken to find out the exact location of the bullets, if any, in the body. He deposed that the X­rays were handed over to PN 9925 of Police Station, Powai. He deposed that as per X­ray (Article 241­A) a bullet was found on the right side of chest. He deposed that after the X­rays were received, the Post­mortem was started at around 09:30 pm on 11/06/2011 and the same was completed at 12:30 am on 12/06/2011. He deposed that his senior Dr. G.D.Niturkar and his junior Dr. V.P.Meshram assisted him in conducting the Post­mortem.

35. He deposed that on seeing the body, he noticed the following:

i) Hypertrophic scar of size 12 X 1 cm over the chest centrally, it was raised transverse, whitish and glistering and the same had completely healed.

ii) Hypotrophic scar of size 3 X 1 cm over supramammary region on left side of chest, it was raised transverse, whitish and glistering and it was completely healed.

iii) One old healed scar of size 9 X 2.5 cm over right side of back 57

over scapular region which was flat, oblique, irregular in shape.

iv) The body was well built, well nourished and cold, rigor mortis was partly developed in both upper and lower limbs.

v) There were no signs of decomposition.

vi) Post­mortem lividity was present over back which was faint purple in color and not fixed which meant that the patient went into shock due to severe bleeding.

vii) The eyes of the body were closed, pupils were dilated and fixed, the mouth was partly open and tongue was inside the oral cavity, there was no oozing from the mouth, nostrils or ears.

viii) There was no injury to external genitals, there was no purging, the limbs were in anatomical position.

36. He deposed that he had drawn the body diagram/sketch (Exh.1264) to show the position of the injuries. He deposed that in the body diagram from the back side the injury nos.1 to 5 on the back side were the entry wounds from the back and the left arm. He deposed that the injury nos.6 to 9 were the exit wounds on the front side and they were on the chest and the left arm.

37. He deposed that on external examination of the body, he found the following injuries: i) firearm wound of entry over left side of back [injury no.(1)] over infrascapular region situated 25 cm below tip of left shoulder and 15 cm lateral to posterior to midline. He made the following observations:

a) It was circular in shape and 0.5 cm in diameter and surrounded by abrasion collar of 0.5 cm, the margin were inverted. 58

b) There was no evidence of blackening, burning, tattooing, singeing of hairs.

c) The bullet had passed through skin subcutaneous tissue, muscle over infrascapular region of left side of back, inter­ costal muscles of postero lateral aspect of 5th inter­costal space of left thoracic cage, lateral aspect of left plura, lateral aspect of lower lobe of left lung, hilum of left lung and through medial aspect of left plura, the bullet further passed through pericardium, left auricle, base of aorta on left side just above left coronary ostia, right side of arch of aorta (beginning), 2 cm above right coronary ostia, pericardium, intercostal muscle of 2nd intercostal of right side along the mid clavicular line with indisplaced fracture of costochondral junction of 2nd and 3rd rib of right side and right pectoralis major muscle.

d) The bullet was retrieved from antero lateral aspect of right pectoralis major muscle in the supramammary region along the anterior axillary line. The bullet was metallic and the blackish in color.

e) The whole track was hemorrhagic and lacerated. It was directed from left to right, posterior to anterior and below upwards.

f) Externally contusion was seen over the right axillary region of size of 5 X 3 cm, muscle deep, reddish black in color corresponding with the location from where the bullet was retrieved. ii) firearm wound of entry (injury no.2) over left side of the back over posterolateral aspect. He made the following observations:

a) It was situated 32 cm below the tip of left shoulder. It was 21 cm laterally from the posterior midline.

b) It was oval in shape and 0.5 cm in diameter and surrounded by an abrasion collar of 0.6 cm, the margins were inverted. 59

c) There was no evidence of blackening, burning, tattooing or singeing of hairs.

d) The bullet had passed through the skin, subcutaneous tissue, muscles over postero lateral aspect of left side of back, subcutaneous tissue over lateral aspect of left side of the chest, muscle over antero lateral and anterior aspect of left chest, subcutaneous tissue and skin.

e) The bullet had exited through the wound of exit (injury no.6) which was situated at inframammary region of left side of the chest, 12 cm lateral to anterior midline, 4 cm below the left nipple. The injury was elliptical in shape and 2 X 0.5 cm in size, the margins were everted.

f) There was no evidence of abrasion collar, blackening, burning, tattooing or singeing of hairs, the whole track was hemorrhagic and lacerated.

g) The injury was directed from left to right, posterior to anterior and below upwards. iii) firearm wound of entry (injury no.3) over posterior aspect of upper part of left arm. He made the following observations:

a) Injury was situated 15 cm below tip of left shoulder and 11.5 cm from apex of posterior axillary fold on left side, circular in shape and 0.5 cm in diameter, surrounded by abrasion collar of 0.5 cm, the margins were inverted.

b) There was no evidence of blackening, burning, tattooing, singeing of hairs.

c) The bullet had passed through skin, subcutaneous tissue, muscle without fracturing humerus bone.

d) The bullet had exited through muscles, subcutaneous tissue and skin over anterior aspect of left arm.

e) Wound of exit (injury no.7) was situated over anterior aspect of left arm 14 cm below tip of left shoulder and 2 cm lateral to anterior axillary fold, it was circular in shape and 60

1 cm in diameter, margins were everted.

f) There was no evidence of abrasion collar, blackening, burning, tattooing, or singeing of hairs. The whole track was hemorrhagic and lacerated. The injury was directed from posterior to anterior and from left to right. iv) firearm wound of entry (injury no.4) over postero lateral aspect of left arm. He made the following observations:

a) Injury was situated 22 cm below tip of left shoulder, 8 cm laterally from apex of left posterior axillary fold, it was circular, 0.5 cm in diameter, surrounded by abrasion collar of 0.5 cm.

b) There was no evidence of blackening, burning, tattooing or singeing of hairs.

c) The bullet had pierced through the skin, subcutaneous tissue, muscle, subcutaneous tissue and exited through skin over anterio lateral aspect of the left arm.

d) The wound of exit (injury no.9) was situated 24 cm below tip of left shoulder, 18 cm above left elbow.

e) The injury was elliptical in shape and 1.4 X 0.8 cm in size. The margins were everted.

f) There was no evidence of abrasion collar, blackening, burning, tattooing, or singeing of hairs.

g) The whole track was hemorrhagic and lacerated. The injury was directed from posterior to anterior. v) firearm wound of entry (injury no.5) over postero lateral aspect of left arm. He made the following observations:

a) It was situated 21 cm below from the tip of left shoulder and 10 cm laterally from apex of left posterior axillary fold, circular and 0.5 cm in diameter, surrounded by abrasion collar of 0.5 cm. 61

b) There was no evidence of burning, blackening, tattooing or singeing.

c) The bullet had pierced through skin, subcutaneous tissue, muscle subcutaneous tissue and exited through skin over anterio lateral aspect of left arm wound of exit (injury no.8) was situated 21 cm below left shoulder tip, 20 cm above left elbow, elliptical in shape and 1.2 x 0.8 cm in size. Margins were everted.

d) There was no evidence of abrasion collar, blackening, burning, tattooing or singeing of hairs.

e) The whole track was hemorrhagic and lacerated. The injury was directed from posterior to anterior.

38. He deposed that he did not find any injury on the head under the scalp or to the skull or brain. He deposed that he did not notice any fracture on the head and that the brain was intact, odematous and pale. He deposed that in the stomach there was 1.5 liters of yellowish white colored food material, rice was identified, no peculiar odour was perceived and the mucosa was pale. He deposed that the small and the large intestine were intact, partly distended with gases and feaces, mucosa was pale. He deposed that from the contents of the stomach it could be said that J.Dey might have consumed food within two hours prior to his death. He deposed that after the Post­mortem, he was of the opinion that the cause of death of J.Dey was “Hemorrhage and shock due to firearm injuries (unnatural).” He deposed that after the Post­mortem was conducted blood was preserved for grouping, the bullet was preserved for ballistic examination, the skin piece from site of entry wound at left side of back of infrascapular region was preserved for ballistic examination and skin piece from site of entry wound at postero lateral aspect of left arm was preserved for ballistic examination. 62

39. He deposed that he had also prepared the cause of death certificate (Exh.1266). He identified the bullet (Article­247) to be the same which was recovered from the body of J.Dey. He deposed that it was possible that all the injuries (entry wounds) might have been caused by one and the same weapon. He deposed that there was no evidence of blackening, burning, singeing, tattooing as it was a distance range firearm shot injury.

40. To a Court question, he stated that range varied according to the type of weapon and the type of bullet used. He stated that in case of pistols and revolver the close range was 30 cm, mid­range was from 30 cm to 90 cm and if the range was more than 90 cm it was considered as distance range firearm shot injury. He deposed that in the present case, the injuries might have been caused from a distance of more than 90 cm. When the revolver (Article­249) was shown to him, he deposed that the injuries found on the body of J.Dey were possible by the revolver (Article­ 249).

41. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that before conducting the Post­mortem he had gone through the inquest panchanama (Exh.305), accidental death report and the declaration given by the Hiranandani Hospital regarding the death of J.Dey. He stated that the report given by the Hiranandani Hospital showed the case history of J.Dey. He admitted that the injuries on the body of J.Dey were visible with naked eyes. He admitted that in all 9 injures were visible on the body of J.Dey and that this was specifically mentioned in the sketch (Exh.1264). He admitted that the dimensions of injury nos.2 & 3 of exit wound were different. He admitted that the injury no.4 was different from the size of injury nos.2, 3 & 5. He admitted that the size of injury no.5 was different from the size of injury nos.2, 3 & 4. 63

42. He admitted that the crime number was not mentioned in the Post­ mortem report (Exh.1265). He admitted that in the Post­mortem report (Exh.1265) it was not mentioned that a 'lead' was found inside the body. He stated that the lead (Article­247) was not black in color and that it was grayish in color. He stated that in the Post­mortem report (Exh.1265) the color of the lead (Article­247) was mentioned as 'metallic and blackish'. He admitted that in column no.17 in the Post­mortem report, he did not mention the length, breadth and the circumference of the foreign object found in the body or the positional direction of the bullet inside the body. He stated that the lead was retrieved from below the right side armpit.

43. He admitted that he came to know about the location of the bullet by looking at the X­rays (Article­241­A to 241­D) before starting the Post­ mortem. He denied that the X­rays were taken to find out as to how the bullet traveled through the body. He stated that from the X­ray one could find out the damage to the bone and the location of the bullet inside the body. He stated that for finding out whether there was any damage to soft tissue, muscle or organ one had to take the CT scan or MRI. He stated that he did not conduct any CT scan or MRI.

44. He admitted that with reference to injury no.1 mentioned in column no.17 it was not stated as to what was the area of damage caused while the lead traveled through the body. He stated that in so far as the injury nos.2 to 5 were concerned, the lead did not pass through any vital organ of the body. He stated that no major blood vessels were damaged in the injury nos.2 to 5. He stated that there was no fracture in the injury nos.2 to 5. 64

45. He denied that whenever an injury was caused by a lead it was always circular in shape. He stated that if the direction of bullet changes, the shape of the injury also changes. He stated that in about 400 to 500 cases, he had found that the firearm injury was circular in shape. He clarified that despite of this opinion he could say that the injury caused by lead was not always circular in shape.

46. He denied that the injuries found on the body were not sufficient to cause his death in the ordinary course. He stated that oval shape injury could be caused by any sharp object such as knife or pointed rods. He stated that the entry wound (injury no.2) was oval in shape. He denied that in the present case, oval shape injury was possible by using a knife or a pointed rod. He stated that he did not find any fragment of bones in the body.

47. He stated that if a person fall downs and has an abrasion it may be red in color and one could see it with naked eyes. He stated that in the present case, except abrasion collar, he did not find any other abrasion on any part of body. He stated that there were no abrasions or contusions due to fall. He stated that he did not do the video recording of Post­mortem of this case.

48. He stated that generally the blood sample was preserved in plastic bottle 2 inch in size. He admitted that in point no.21 of the Post­mortem report, he did not mention whether the blood was preserved in a plastic bottle or a glass bottle. He admitted that he had forwarded the bullet for ballistic examination in a bottle. He stated that he could not assign any reason as to why there was a plastic jar (Article­245) before the Court in which the lead (Article­247) was kept. 65

49. He stated that the articles mentioned in point no.21 of the Post­ mortem report were handed over to a Police Constable. He stated that no panchanama was prepared in that regard. He stated that though in point no.21 of the Post­mortem report (Exh.1265), the fact about labeling and sealing of the articles was not mentioned, it was mentioned in the chemical analysis form.

50. He denied that the lead which was found in the body was in deformed condition. He denied that every time a bullet was fired it would deform as it depended upon the thing at which the bullet was fired. He denied that if a bullet hits the rib bones it deformed. He stated that the bullet may be deformed if it hits femor of leg, tibia, humerus, skull and that it was dependent upon the velocity and the angle at which the bullet was fired.

51. He admitted that the lead (Article­247) and the bullet (Article­250) were different. He denied that he routinely marked foreign article recovered from the body for its identification. He stated that it was not their practice to give any identification mark on the lead which may be recovered from the body. He admitted that there was no identification mark on lead (Article­247). He denied that he could not identify the lead (Article­247) as there was no identification mark on it. He denied that no lead was recovered from the body of J.Dey.

52. In cross­examination on behalf of the accused nos.5 and 11, he stated that he did not prepare any rough notes while conducting Post­ mortem and that the report was prepared simultaneously. He stated that he himself and two members of staff (cutters) dissected the body. He 66 stated that the Post­mortem report (Exh.1265) was handed over to the Police on 13/06/2011. He stated that the cause of death certificate was given immediately after Post­mortem to the Police.

53. He admitted that the rain­coat and the T­shirt of J.Dey were shown to him for the first time in the Court and that those clothes were not sent to him at the time of Post­mortem or at any time thereafter. He admitted that except the cause of death he did not give any other opinion to the investigating machinery. He stated that he had retrieved a bullet from the body. He admitted that he was never shown the firearm. He admitted that no opinion was sought from him regarding the firearm or the bullet. He stated that the Police did not show him the ballistic report regarding the bullet which was retrieved from the body.

54. He stated that the rigor mortis starts developing after 2­3 hours after the death and it completes within 12 hours. He stated that in the present case, the rigor mortis was partly developed in both upper and lower limbs. He admitted that on the basis of rigor mortis one can come to the conclusion regarding the time of death.

55. It may be noted that the defence has not disputed that J.Dey died as a result of the bullet injuries sustained by him. Even on the independent analysis of the evidence of PW.128­Dr. Sadanand Bhise, PW.130­Dr. Fakruddin Ali Shah, the Post­mortem report (Exh.1265), the cause of death certificate (Exh.1266) and the inquest panchanama (Exh.305), it is quite clear that J.Dey expired on 11/06/2011 at about 03:00 pm to 03:10 pm and that his death was homicidal and too by bullet injuries.

56. The perusal of the evidence of PW.130­Dr. Fakruddin Ali Shah 67 shows that J.Dey was dead even before he could be admitted to the Hiranandani Hospital for treatment. PW.130­Dr. Fakruddin Ali Shah made a note of the injuries (Exh.1268) which he saw on the body of J.Dey and then referred the body to the J.J.Hospital for Post­mortem. On receipt of the forwarding letter (Exh.1263) from the Senior PI, Police Station, Powai, PW.128­Dr. Sadanand Bhise conducted the Post­mortem and opined that the cause of death was “Hemorrhage and shock due to firearm injuries (unnatural).” Five bullet injuries were found near the chest and shoulder area on the body of J.Dey. The injuries were ante mortem. One bullet was found in the chest area of the body. It has been brought on record during cross­examination of PW.128­Dr. Sadanand Bhise that the injuries found on the person of J.Dey were sufficient to cause his death in the ordinary course of nature.

OBJECTIONS REGARDING RECOVERY OF LEAD (ARTICLE­247) FROM THE BODY OF J.DEY. 57. The learned Advocate for the accused no.1 doubted the recovery of the lead (Article­247) from the body of J.Dey on the ground that the recovery of the same is not mentioned in the Post­mortem report (Exh.1265). It is not necessary to make such a note in the Post­mortem report as the said report is necessary for primarily finding out the cause of death. That apart, it has come in the evidence of PW.128­Dr. Sadanand Bhise that before conducting the Post­mortem, X­ray of the body was taken for finding out whether any bullet was inside the body. It has further come in his evidence that as per X­ray (Article 241­A) a bullet was found on the right side of chest and after it was removed from the body of J.Dey it was sent to the FSL,Kalina in sealed condition for analysis. Further, he has identified the bullet (Article­247) to be the same which was recovered from the body of J.Dey and sent to the FSL,Kalina for 68 analysis. Also, the learned Advocate for the accused no.1 could not show that the law requires that such fact must be mentioned in the Post­mortem report. Hence, the objection stands rejected.

58. The recovery of the lead (Article­247) from the body of J.Dey was also doubted on the ground that PW.128­Dr.Bhise did not mention the names of the vital organs of the body of J.Dey which were damaged due to the passage of the lead (Article­247) in the body. The said submission is also required to be rejected as PW.128­Dr.Bhise has very categorically stated that he did not find any damage to the vital organs of the body of J.Dey. Therefore, there was no question of making a note of it in the Post­ mortem report (Exh.1265).

59. The learned Advocate for the accused no.1 also disputed the identity of the lead (Article­247) which was recovered from the body of J.Dey on other grounds. He submitted that it has come in the evidence of PW.128­ Dr.Bhise that he had forwarded the lead recovered from the body of J.Dey in a 'bottle' to the Police Station, Powai but the lead which was before the Court was kept in plastic jar (Article­245). He also tried to impress upon the fact that as per CA report (Exh.233) the lead (Article­247) was sent to the FSL,Kalina on 11/06/2011 itself i.e. even before the Post­mortem of the body of J.Dey was conducted.

60. The above submissions have no force and are hyper­technical. In so far as the first submission is concerned, PW.128­Dr.Bhise has nowhere deposed that the lead (Article­247) was not the same lead which he had forwarded to the Police Station, Powai. He has categorically deposed that the lead (Article­247) was the same which was recovered from the body of J.Dey. There was no suggestion given to him that the lead (Article­247) 69 was planted though much was argued on this point. No explanation was sought from any of the Investigating Officers on this point. Further, PW.128­Dr.Bhise has clearly stated that they also used sent the articles in plastic jars such as the one which was before the Court. It appears that at the time of deposing before the Court he could not recollect the exact word and used the word 'jar' instead of 'bottle'. This can happen with anybody. The words beaker, bottle, decanter, jug, pot and vessel are synonymous with the word 'jar'. Therefore, just because PW.128­Dr.Bhise has used the word 'jar' instead of the word 'bottle' does not make the case of the prosecution suspicious. The important thing is that he has clearly stated that the recovered lead was immediately sealed and handed over to the Police Constable of Police Station, Powai. There is nothing on the record to suggest that thereafter the lead (Article­247) was not properly handled. As stated earlier, no direct questions were put to any of the Investigating Officers in this regard. That apart, as per CA report (Exh.233) the lead (Article­247) was received in the FSL,Kalina in sealed condition and that the seal was intact. This is sufficient to infer that it was the same lead which was recovered from the body of J.Dey. If there was any doubt then it was always open for the learned Advocate for the accused no.1 to call for and cross­examine the expert from the FSL,Kalina. In any case, from 11/06/2011 to 26/06/2011, the complicity of the accused persons with this case was not established. Therefore, there was no motive for PW.128­Dr.Bhise who was an independent witness or PW.137­PSI Rane or PW.141­PI Gosavi or PW.142­API Datir to tamper with the lead (Article­247). The situation would have been different had the involvement of the accused persons been known to the Investigating Officer on 11/06/2011 or 12/06/2011 or 13/06/2011.

61. In so far as the second submission is concerned, the learned 70

Advocate for the accused no.1 seems to have missed the fact that the date '11/06/11' mentioned in point no.1 of the CA report (Exh.233) is the date of the case under reference i.e. FM/308/11 which also finds place in the Post­mortem report (Exh.1265). The perusal of point no.5 of the CA report (Exh.233) clearly shows that the lead (Article­247) was received by the FSL,Kalina on 13/06/2011 in sealed condition. That the lead (Article­247) was forwarded to the FSL,Kalina on 13/06/2011 is clear from the evidence of PW.141­PI Gosavi who has clearly deposed that on 13/06/2011 he took the custody of the muddemal including the lead (Article­247) from the Police Station, Powai and on the same day he forwarded the lead (Article­247) along with other articles to FSL,Kalina through PW.94­Havaldar Ramraje along with the forwarding letter (Exh.263). The above evidence of PW.141­PI Gosavi is corroborated by the evidence of PW.94­Havaldar Ramraje and the forwarding letter (Exh.263) on material points. Hence, it is quite clear that the lead (Article­247) was sent and deposited in the FSL,Kalina on 13/06/2011 and not on 11/06/2011.

62. Another ground on which the identity of the lead (Article­247) was sought to be doubted is that PW.128­Dr.Bhise has deposed that the lead was grayish in color whereas in the Post­mortem report (Exh.1265) it was mentioned that the lead was metallic and blackish in color. This objection was raised ignoring of the fact that when the lead was removed from the body it was somewhat wet. Therefore, it may have looked a bit dark in color. Therefore, at that time PW.128­Dr.Bhise may have mentioned its color as metallic and blackish. Further, depending upon the perception of a person, for one the lead (Article­247) may be black in color, for another it may be gray in color and for still another it may be a lighter shade of black color. It is not as if though the witness has deposed that the lead was 71 black in color but the lead before the Court is white in color. Also, it cannot be forgotten that PW.128­Dr.Bhise came to depose before this Court after about 6 years of the incident. Naturally, during the period of 6 years the color of the lead must have faded a tinge and therefore it looked grayish in color.

63. The learned Advocate for the accused no.1 also contended that in view of the evidence of PW.128­Dr.Bhise that the lead (Article­247) which was recovered from the body of J.Dey and the live cartridge (one out of Article­250 which was recovered at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya) were different was also sufficient to hold that the lead (Article­247) was not the same lead which was found inside the body of J.Dey. Though the said submission deserves no comment but as it is raised it has to be dealt with. It may be stated that the lead (Article­247) and the live cartridge (one out of Article­250) are indeed different as the lead (Article­247) is a part of the bullet which was used whereas the live cartridge (one out of Article­250) was unused and all its parts were intact. Therefore, the lead (Article­247) was bound to be different from live cartridge (one out of Article­250).

64. It was next argued that the possibility of tampering with the lead (Article­247) which was recovered from the body of J.Dey could not be ruled out as in the Post­mortem report(Exh.1265), the fact about labeling and sealing of the articles is not mentioned. In this regard, if the evidence of PW.128­Dr.Sadanand Bhise is seen, it will be clear that he has categorically stated that the fact about the labeling and sealing of the articles was mentioned in the Chemical analysis form. The articles were handed over to the concerned Police Constable along with the Chemical analysis form. It is no doubt true that the prosecution has not proved the 72 said letter but there is nothing to disbelieve the evidence of PW.128­ Dr.Sadanand Bhise especially because at that time, the name of the accused persons was never in picture and he had no reason to make a false statement.

65. It was next argued that there is discrepancy in the size of injuries mentioned in the inquest panchanama (Exh.305) and the size of injuries mentioned in the Post­mortem report (Exh.1265). It needs to be noted that while mentioning the dimensions of the injuries in the inquest panchanama the size of the injury is not actually measured. The measurements are approximate. Even PW.137­PSI Rane who prepared the inquest panchanama has stated so. More accurate measurement can only be given by the Doctor who conduct the Post­mortem. In this case, the Doctor was PW.128­Dr.Sadanand Bhise. He examined the body of J.Dey very closely and then mentioned the dimensions of the injuries found on the body of J.Dey. Therefore, there is bound to be some difference in the dimensions mentioned in the inquest panchanama (Exh.305) and the Post­ mortem report (Exh.1265). Further, in case of any discrepancy between inquest panchanama and Post­mortem report, it is the latter which has to be relied upon.

66. From the above, it is clear that the prosecution has not only proved that the death of J.Dey was homicidal and it was caused due to firearm injuries but the prosecution has also proved that the lead (Article­247) was recovered from the body of J.Dey. Therefore, point no.1 is answered in the affirmative.

AS TO POINT NOS.2 AND 3 [CONSPIRACY AND MURDER] 67. As the evidence and the arguments on these points are interlinked 73 they are being considered together.

68. It may be noted that the defence has not disputed the identity of J.Dey. Except for the learned Advocate for the accused nos.1,6 and 7 none of the learned Advocates for the defence have disputed the spot of the incident. The learned Advocate for the accused nos.1,6 and 7 and the learned Advocate for the accused no.2 have also disputed the registration of the FIR (Exh.290) and the finding of the lead (Article­215) from the spot of the incident. Therefore, before taking up the discussion about the points for determination, it will be proper to make a note of the evidence led by the prosecution on the above aspects so as to dispel the imaginary doubts regarding the timing of the incident, registration of the FIR (Exh.290) and also the recovery of the lead (Article­215) from the spot of the incident.

EVENTS WHICH TOOK PLACE AFTER THE RECEIPT OF INFORMATION OF THE INCIDENT AND OBJECTIONS RAISED BY THE DEFENCE ABOUT THE REGISTRATION OF THE FIR, SPOT OF THE INCIDENT AND THE FINDING OF THE LEAD NEAR THE SPOT OF THE INCIDENT, ETC. 69. PW.1­Sandip Rangnath Shikhre was working as an Assistant to PI (Law and order) at the Police Station, Powai at the relevant time. He deposed that on 11/06/2011 at about 03:00 pm to 03:30 pm, he received telephonic information about some firing of bullet shots at D' Mart Circle, Hiranandani and accordingly, he informed about this fact to PW.2­PI Tivatane. It has come in his evidence that PW.2­PI Tivatane then went to the spot along with PW.137­PSI Rane.

70. In cross­examination on behalf of accused nos.1,2,6 and 7, he stated that he did not make any enquiry as to who had given the information 74 about the incident to him on telephone. He stated that he did not make any pocket diary entry or any other entry about the said phone call. He stated that though he was on duty on 11/06/2011 and 12/06/2011 his statement was not recorded on those dates. He stated that while giving his statement he did not give the phone number from which he had received the phone call about the incident. He denied that he did not receive any phone call informing him about the incident.

71. PW.2­PI Tivatane was attached to the Police Station, Powai at the relevant time. He deposed that on 11/06/2011 he was on day duty. He deposed that at about 03:00 pm PW.1­Sandip Shikhre informed him about a firing incident at D' Mart, Hiranandani and accordingly at about 03:05 pm, he left for the spot along with PW.137­PSI Rane. He deposed that he had made the necessary station diary entry to that effect. He deposed that they reached the D'Mart Shopping Mall within 15 minutes and when they reached there they saw that some crowd had gathered in front of the Crisil House. He deposed that two Beat Marshals were also present there. He deposed that one of the Beat Marshals informed him that one black colored Pulsar motorcycle bearing registration no.MH­03­AD­6918 (Article­39) was parked on the footpath and one helmet (Article­36) was kept on its seat. He deposed that on making enquiry he came to know that four persons riding on two motorcycles had done the firing. He deposed that he also came to know that the injured was taken to the Hiranandani Hospital. He deposed that he saw the lead (Article­215) lying on the spot and therefore he asked one of the Beat Marshals to make arrangement to guard the spot and then along with PW.137­PSI Rane he went to Dr.L.H. Hiranandani Hospital for making enquiry about the injured.

72. He deposed that the Doctor informed him that the injured was 75 brought dead to the Hospital. He deposed that he asked one ward boy to check the pockets of the clothes of the deceased to verify his identity. He deposed that one pouch (wallet) was found in the rear pocket of the trouser of the deceased. He deposed that when he checked the pouch he found the driving license in the name of J.Dey. He deposed that on seeing the bullet marks on the left side of the body he came to the conclusion that J.Dey was murdered by gun shots and accordingly he told PW.137 PSI Rane to record his FIR (Exh.290). He deposed that he also instructed PW.137­PSI Rane to obtain the crime number from the Police Station, Powai and to make the necessary station diary entry.

73. He deposed that on his directions PW.137­PSI Rane prepared the inquest panchanama (Exh.305) in presence of two panch witnesses who were called for. He deposed that one photographer (PW.8­Bhushan Kumar Singh) arrived there when the inquest panchanama was being drawn and he took the photographs of the dead body from various angles. He deposed that he had also informed PW.137­PSI Rane to draw the panchanama (Exh.306) regarding seizure of the clothes of J.Dey. He deposed that thereafter both of them returned to the spot of the incident. He deposed that the spot of the incident was shown to them by one person by name Javed Ansari. He deposed that the spot panchanama (Exh.1377) was prepared in his presence. He deposed that on his directions, PW.137­ PSI Rane seized the Pulsar motorcycle (Article­39) and the lead (Article­ 215) and the seizure of those articles was recorded in the spot panchanama (Exh.1377). He deposed that from there both of them returned to the Police Station, Powai and PW.137­PSI Rane made the necessary station diary entry about the above events.

74. In cross­examination on behalf of the accused no.1,6 and 7, he 76 stated that he was not aware that the Police informant should not take part in the investigation. He admitted that he had reached the Hiranandani garden after getting information of the offence. He admitted that he had seen the crowd and also the motorcycle of J.Dey at the said place. He clarified that Hiranandani garden was not a garden but it was a name of an area/locality. He stated that when he first visited the spot he was at the spot of the incident for about 10 minutes. He stated that during the period of 10 minutes himself and PW.137­PSI Rane were collecting information from people. He stated that the security guards of the Hiranandani were also present there along with two Beat Marshals. He stated that he did not ask PW.137­PSI Rane to note down the names of the security guards. He stated that he knew the names of the Beat Marshals. He stated that he did not give the names of the Beat Marshals in the FIR as he did not feel it necessary to do so.

75. He stated that at that time, he did not record the statement of any person as none of them was in position to make any firm statement that he had seen the incident. He stated that as no one came forward to lodge the FIR, he could not lodge the FIR on the basis of the statement made by any person who was present there. He denied that during the period 10 minutes he was asking the people who were present on the spot to lodge the FIR. He stated that there were buildings near the spot of the incident and that the security guards were also posted in those buildings. He stated that he did not remember whether he had asked the security guards of the surrounding buildings to lodge the FIR. He stated that he had seen the injuries on the person of the deceased prior to lodging of the FIR. He stated that he could not give any reason as to why he did not give the detailed description of the injuries in the FIR. He denied that he was not aware in relation to which crime number his statement was recorded. He 77 stated that while giving statement he did not mention about the presence of lead (Article­215) at the spot as he did not remember about the same at that time. He denied that he had stated about the presence of lead (Article­215) at the spot for the first time before the Court. He denied that the FIR was ante dated and ante timed. He denied that the FIR was written in the Police Station.

76. In cross­examination on behalf of the accused no.2, he admitted that whenever they used to leave the Police Station and return to the Police Station, they used to make an entry in the station diary. He admitted that the purpose of leaving the Police Station and the name of the associates was also mentioned in the station diary. He stated that he had left the Police Station to make enquiry about the information given by PW.1­Sandip Shikhre regarding the incident of firing. He admitted that there was two way traffic on the road in front of the Crisil House. He admitted that when he was in the Hospital along with PW.137­PSI Rane he did not record statement of any person. He stated that his involvement in this case was till the time they returned to the Police Station, Powai and till the necessary entries were made in the station diary. He stated that thereafter, the Investigating Officer of this case did not call him for enquiry. He stated that he was not even aware about the filing of the charge­sheet in this case. He stated that he had discussions with his superior Officers regarding this case when they had visited the Hiranandani Hospital. He denied that the FIR was lodged after discussions and consultation with the superior Officers.

77. PW.2­PI Shri Titavane was re­examined on the point of the production of the station diary entry regarding his leaving and returning to the Police Station 11/06/2011. On being asked by the learned SPP, he 78 produced the relevant station diary entry dated 11/06/2011. They were marked as Exhs.294 and 295 respectively. In further cross­examination on behalf of accused nos.1,6 and 7, it was suggested to him that the station diary entry was not in his handwriting and that except for the entry (Exh.294) there was no other entry in his handwriting on 11/06/2011. He denied those suggestions. He stated that the specific crime number was not mentioned in station diary entry (Exh.295) as a separate station diary entry to that effect was made. He admitted that there was no established procedure to make any signature on station diary entry. He stated that normally, initially the AD (Accidental Death) report was filed and after getting the details, the FIR was registered. He stated that in this case the AD report was not filed first. He denied that the panch witnesses were known to him. He stated that he had asked the people present on the spot to act as panch witness. He stated that in the inquest panchanama (Exh.305) there was no mention of any hole in the body of J.Dey. He stated that the lead (Article­215) was found in front of the Crisil House gate on the Central Avenue Road. He stated that he did not know whether security guards of Hiranandani had found any revolver. He denied that a revolver was found near the spot and the security guards brought it to the Police Station.

78. PW.23­Sanjay Harinarayan Singh was working as a security guard with the Front line Guard Security Service at the relevant time. At the time of the incident, he was posted in Hiranandani. He deposed that on 11/06/2011, he was on duty and his lunch time was between 02:00 pm to 03:00 pm. He deposed that after having lunch with his colleagues namely Zakirullah Qureshi (PW.24), Shafi Patel, Rajendra Patel, Sanjay Boogi and Chandrasen Singh all of them were standing outside and at that time, one person came there and informed them about some firing incident near the 79

Crisil House. He deposed that when they went there he saw that 7­8 persons were already present there and they were seeing something. He deposed that he saw that those persons had kept one person near the compound wall of the Crisil House. He deposed that his senior Chandrasen Singh told them to stop a vehicle as the person was in injured condition. He deposed that one Santro car was stopped and the injured was taken to the Hospital at Powai but the Doctor in that Hospital told them that there was no ICU facility in their Hospital and therefore, the injured was taken to the Hiranandani Hospital. He deposed that when they reached Hiranandani Hospital the Doctor told them that the injured was not moving. He deposed that thereafter the Police came there and then he rejoined his duty.

79. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that people used to continuously move around the Central Avenue Road. He stated that he did not ask the 7­8 persons who were present on the Central Avenue Road as to how the incident had occurred. He stated that he did not tell the Police as to how the incident had occurred. He stated that CCTV cameras were installed in the Hiranandani area. He stated that some CCTV cameras were installed on the gates of the societies which covered the road. He stated that CCTV cameras which were installed on the buildings also covered the road.

80. In cross­examination on behalf of the accused no.2, he stated that when he saw the injured he was not bleeding. He stated that the injured was not bleeding even when he was kept in the car. He stated that it was raining when the injured was being kept in the car. He stated that no blood was seen in the car also. 80

81. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that it was raining on that day since morning. He stated that they stopped the car as it was raining and it would have been difficult to carry the injured on a two wheeler vehicle. He stated that they did not check whether the injured was breathing at that time. He stated that when they reached the spot nobody told him as to how the incident had occurred. He stated that he came to know about the manner in which the incident took place on the next day.

82. In cross­examination on behalf of the accused nos.5 and 11, he stated that on that day it was continuously raining from 06:00 am to 04:00 pm. At the same time, he stated that he could not say whether it was raining heavily when he started to proceed towards the spot. He stated that while he was holding the body, there was no blood on his jacket or clothes. He stated that he did not know whether there was any blood on clothes of his colleagues.

83. PW.24­Zakirullah Karimullah Qureshi was also working as a security guard in the Hiranandani, Powai at the relevant time. On 11/06/2011 he was also on duty along with PW.23­Sanjay Singh. His examination­in­chief is on the same lines as that of PW.23­Sanjay Singh. Therefore, it is not being repeated.

84. In cross­examination on behalf of the accused nos.1,6 and 7, he did not see what articles were lying near the spot. He stated that he did not see any helmet lying on the spot. He voluntarily stated that the helmet was on the head of the injured. He stated that the Police were making some search around the spot of the incident. He stated that he did not know which articles were seized by the Police at that time. He stated that 81 he did not know whether the Police had seized any revolver from the spot on the Central Avenue Road.

85. In cross­examination on behalf of the accused no.2, he stated that at that time, it was raining heavily.

86. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that he did not know as to who had stopped the car. But he stated that somebody from the public had stopped the car. He stated that he did not know as to how the person had sustained injuries. He stated that nobody told him about the injuries when he was on the spot. He stated that he was informed about the injuries when he had gone to the Hospital.

87. In cross­examination on behalf of the accused nos.5 and 11, he stated that he had not witnessed the event of people lifting the Pulsar motorcycle on the road. But he stated that he had seen some people parking the motorcycle. He stated that many people had gathered there and they were having umbrellas with them. He stated that the Police did not come to the spot till the time he was there. He stated that he saw the Police for the first time in the Hospital. He stated that some of the commandos of his Company had taken the injured to the Hospital.

88. PW.72­Ramjatan Lalta Patel was also working as security guard along with PW.23­Sanjay Harinarayan Singh and PW.24­Zakirullah Karimullah Qureshi. He deposed that on 11/06/2011, he was on duty at the Spectra House. He deposed that at about 02:00 pm, when he was talking to one Shri Prafull Chandra (Property Manager of Spectra House), he heard some cracker like sound. He deposed that when he looked around he saw that one person had fallen on the road near the divider and 82 there was a motorcycle there. He deposed that there were two motorcycles and two persons were traveling on each motorcycles. He deposed that those persons ran away from that place. He deposed that he could not see the faces of those persons but they were wearing raincoats. He deposed that one person was wearing a green colored raincoat and one person was wearing a blue colored raincoat. He deposed that he did not remember the color of the raincoats which the other two persons were wearing. He stated that he could not identify the raincoats if shown to him.

89. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that while giving statement to the Police he did not give the timing of his duty hours. He stated that usually there was heavy traffic on the Central Avenue Road. He stated that due to rain many people were wearing wind­cheaters and were with umbrellas. He stated that during rainy season there used to be water logging around the circle which was on the Central Avenue Road. He stated that when he came outside many people had already gathered on the spot to see the person who had fallen on the road. He stated that the injured was lying on the road divider. He stated that he did not come forward to help that person. He stated that he did not call the Police. He stated that he could not read and write Marathi. He stated that he was not aware as to what enquiry was made by the Police with him and what was written in his statement. He admitted that the Police had told him that his help may be required with regard to the incident and he agreed for the same.

90. In cross­examination on behalf of the accused no.2, he stated that there was a slope on the Central Avenue Road and the footpath and the water used to flow down that road and footpath. He stated that there used to be heavy traffic on both the sides of the road. 83

91. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that on that day it was raining heavily. He stated that normally there used to be crowd on the road on which the incident had taken place. He stated that he did not know whether on that day also there was crowd due to rain. He stated that he did not remember whether at that time vehicles were running on the road on which the incident had taken place. He stated that it may be that other motorcycles were also running on that road. He stated that he first saw the person who had fallen on the spot. He stated that other persons were also wearing raincoats at that time.

92. In cross­examination on behalf of the accused nos.5 and 11, he stated that on 11/06/2011 he was with Shri Prafull Chandra for about 10 to 15 minutes and that he was standing and talking with him.

93. PW.3­Prakash Ramchandra Vaval was attached to the Police Station, Powai at the relevant time. He deposed that in June­2011, he was working as day Beat Marshal and he was assigned the duty of patrolling. He deposed that on 11/06/2011, he was on duty at the IIT outpost Powai accompanied by Hawaldar Jadhav. He deposed that on 11/06/2011 at about 03:00 pm, he received a phone call from Shri Kishor Bhosale who was working as the orderly of Senior PI and he informed him about a incident of firing near D' Mart, Hiranandani area. He deposed that he immediately went towards D' Mart. He deposed that it was raining at that time. He deposed that he found some crowd near the Crisil House and therefore he stopped his motorcycle near footpath and proceeded towards the crowd. He deposed that the commandos of the Hiranandani were already present there. He deposed that he made an enquiry with them. He deposed that he saw a motorcycle parked on the footpath and a white 84 colored helmet was kept on it. He deposed that he told the people who gathered there to stay away from that place. He deposed that after some time PW.2­PI Tivatane and PW.137­PSI Rane came there. He deposed that he saw the lead (Article­215) on the footpath in front of the compound of the Crisil House and that he pointed out the lead (Article­215) to PW.2­PI Tivatane. He deposed that thereafter PW.2­PI Tivatane instructed him not to allow the public to go near the spot and then PW.2­PI Tivatane went to the Hiranandani Hospital. He deposed that PW.2­PI Tivatane, PW.137­PSI Rane and one more person by name Ansari returned to the spot at about 07:30 pm. He deposed that thereafter PW.2­PI Tivatane and PW.137­PSI Rane prepared the spot panchanama (Exh.1377), the photographer who had arrived there took the photographs of the spot and PW.2­PI Tivatane took charge of the lead (Article­215), motorcycle (Article­39) & the helmet (Article­36) in his presence.

94. In cross­examination on behalf of the accused nos.1,6 and 7, he denied that he did not make any entry in his pocket diary about the events witnessed by him. He stated that he did not give his pocket diary to the Police nor did the Police ask him about the same. He stated that he had informed PW.2­PI Tivatane about the incident of firing. He admitted that the road opposite to Crisil House where the incident had occurred was known as the Central Avenue Road. He voluntarily stated that the Central Avenue Road was also known as “Go­Karting road”.

95. In cross­examination on behalf of the accused no.2, he denied that except PW.2­PI Tivatane and PW.137­PSI Rane no other Officer came to the spot during the period when he was on the spot. He stated that he did not know the exact time of the occurrence of the incident. He stated that he did not get any information regarding the number of bullets which 85 were fired in the incident.

96. In cross­examination on behalf of the accused nos.5 and 11, he stated that he had reached the spot at about 03:10 pm and PW.2­PI Tivatane reached the spot after about 5­10 minutes after he had reached the spot. He stated that on 11/06/2011, it was raining since morning and it stopped raining at about 04:30 pm. He admitted that it was raining heavily on that day and due to the heavy rain it was difficult to drive. He stated that when he reached the spot there were 15­20 people present there. He stated that he neither recorded their names and addresses nor made any enquiry with the general public. He stated that there were 2­3 commandos present there.

97. PW.5­Girish Ramdhari Mishra was the panch witness regarding the inquest panchanama (Exh.305) and the seizure of the clothes of J.Dey vide seizure panchanama (Exh.306). He deposed that he was working as a Security Officer in the Hiranandani Hospital, Powai. He deposed that on 11/06/2011, at about 05:00 pm the body of J.Dey was brought to Casualty ward and some Police were also present there. He deposed that on being asked by PW.137­PSI Rane he agreed to act as panch witness to the inquest panchanama. He deposed that the mouth of J.Dey was open and blood was oozing from the left nose. He deposed that there were no clothes on the person of J.Dey. He deposed that the body was seen from all the sides by turning it over. He deposed that at that time, PW.8­ Bhushan Kumar Singh (Photographer) came there. He deposed that the Police noted down the injuries which was found on the body of J.Dey. He stated that there were about 9­10 injuries on the body of the deceased. He stated that the proceedings of inquest panchanama continued upto 06:10 pm. He deposed that the inquest panchanama (Exh.305) was prepared in 86 his presence and its contents were correct.

98. PW.5­Girish Mishra deposed that after proceedings of inquest panchanama (Exh.305) were complete the Police seized the raincoat consisting of a cap i.e. top and lower and the clothes of J.Dey. He deposed that there were some cut markings on the top of the raincoat and markings were at the left chest, left arm and left side of the back. He deposed that there were about 9­10 such markings. He deposed that the cash amount of Rs.200/­ to Rs.300/­, one photo ID, one license etc. were found in the pocket of the trouser. He deposed that the wrist watch and mobile phone of J.Dey was also found. He deposed that all the above articles were seized, packed and sealed vide seizure panchanama (Exh.306) and his signatures were taken on the same. He identified all the articles which were seized at that time. He deposed that the proceedings of the seizure panchanama (Exh.306) concluded at about 07:00 pm.

99. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he did not keep any note of the patient admitted in the casualty ward of the Hospital. He clarified that the security guards of the Hospital did not maintain any such register. He stated that his statement was never recorded by the Police. He stated that he was not present when J.Dey was brought to the Hospital and that he came to know about this from the Police. He stated that he could not read and write Marathi. He denied that the contents of the inquest panchanama (Exh.305) and the seizure panchanama (Exh.306) were not read over to him. He voluntarily stated that the contents of the panchanamas were translated to him in Hindi. He admitted that the Police did not tell him the crime number and which sections were applied in this case. He admitted that he did not handle any article seized by the Police. He denied that the Police had 87 already prepared the seizure panchanama (Exh.306) and he only signed it and thereafter, the articles were sealed separately. He admitted that he was not aware as to who wrote the contents of the seizure panchanama (Exh.306) or the name of the Police Officer who signed the seizure panchanama (Exh.306).

100. PW.8­Bhushan Kumar Singh was the photographer who took the photograph of the body of J.Dey in the Hiranandani Hospital. It has come in his evidence that at the relevant time he was working as a photographer in the Navara Digital Lab situated at Galleria, Shop no.33, Hiranandani, Powai, Mumbai. He deposed that on 11/06/2011 at about 04:30 pm one Police Officer came to his shop and told his employer (Shri Rafiq Memon) that a murder had occurred and photographs were to be taken. Accordingly, his employer told him to take the photographs. It has come in his evidence that he then went with the photography equipments to the Hiranandani Hospital and took the photographs (Exh.489 colly.).

101. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he did not know whether the Police had prepared any seizure panchanama regarding the photographs given by him to the Police. He stated that no blood was seen on the front portion of the body. He stated that the Police did not tell him anything regarding the crime number in connection with which the photographs were taken. He denied that he was a regular photographer for the Police. He stated that he was not told by the Police to take photograph from specific angles.

102. In cross­examination on behalf of the accused no.2, he admitted that at the relevant time his shop was having modern equipments of photography. He admitted that editing facility was available in his shop. 88

He admitted that softwares were available in the market for editing photographs. He denied that he did not take any photographs.

103. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that the printouts of the photographs were taken through the computer which was in his shop. He stated that the computer was not available in his shop. (As on the date of recording of his evidence this witness was not working in the Navara digital lab). He denied that he had manipulated the photographs when the memory card was inserted in the computer for taking printouts.

104. In cross­examination on behalf of the accused nos.5 and 11, he stated that he did not remember whether while giving statement to the Police he had given the description of the memory card. He stated that his statement was not read over to him after it was recorded. He stated that he also did not read his statement. He stated that he did not remember the model number of the camera used by him for taking the photograph.

105. PW.79­Rajesh Sakharam Revale was working as a ward­boy in the Hiranandani Hospital at the relevant time. He deposed that on 11/06/2011, his regular duty hours were between 07:00 am to 04:00 pm but as his reliever had not joined he continued his duty in the second shift also. He deposed that on that day, Doctor Ali (PW.130) who was working in the Hospital called him to the casualty ward and told him to remove the clothes which were on the body of J.Dey. He deposed that he removed the clothes of J.Dey and handed over them to the Police who were present there. He deposed that there was one gray colored jacket one cap, one black colored T­shirt, one black colored trouser and one gray color underwear. He identified the clothes of J.Dey in the Court. 89

106. In cross­examination, on behalf of the accused nos.1,6 and 7, he stated that he had gone to the casualty ward at 04:30 pm and removed the clothes which were on the body of the deceased. He stated that he did not remember whether the Police had told him with reference to which case the clothes were being seized. When a specific question was put to him whether he had seen any shot hole on the T­shirt and jacket when he removed the clothes from the person of the deceased, he replied in the negative and stated that he had simply removed the clothes and handed over them to the Police.

107. PW.84­HC Bhaskar Gode was attached to the Police Station, Powai at the relevant time. He was examined by the prosecution to show that the on 12/06/2011, at about 12:00 in the noon the CCTV footage of 11/06/2011 of the Hiranandani D'Mart Shopping Mall, Sweta Building, Office of HSP was collected in his presence. (He was not the panch witness) He deposed that the CDs (Articles­149, 150, 151) containing the CCTV footage were sealed and labelled in his presence and the seizure panchanama (Exh.813) was prepared in that regard.

108. In cross­examination on behalf of the accused nos.1,6 and 7, certain facts not connected with the purpose for which he was examined were brought on the record with the intention to create a doubt about the spot of the incident. He stated that he was attached to the Police Station, Powai since the year 2005 and during that period he had done patrolling duty also. He stated that he knew the names of the roads in the Powai area. He stated that the D'Mart Shopping Mall was facing the Central Avenue Road and that there was only one entry and exit point in the D'Mart Shopping Mall and it was facing the Central Avenue Road. He stated that the only 90 front portion of the D'Mart Shopping Mall was facing the Central Avenue Road and not the back portion of the D'Mart Shopping Mall. He stated that the Spectra Building was adjacent to the D'Mart Shopping Mall. He stated that he had visited the spot on 11/06/2011. He stated that there was a gate of Crisil House on the Central Avenue Road. He stated that on 11/06/2011 he had gone to the gate of the Crisil House facing the Central Avenue Road where the incident had taken place. He stated that the news about the incident was received in the Police Station at about 03:00 pm. He stated that many Police Officers had come to the Central Avenue Road.

109. PW.85­Kashinath Santu Jadhav was working as Head Constable with the Police Station, Powai at the relevant time. He deposed that on 11/06/2011, he was given duty at the main gate, IIT, Powai along with PW.3­Constable Prakash Vaval. He deposed that at about 03:00 pm while he was on patrolling duty with PW.3­Constable Prakash Vaval, he (PW.3) received a phone call from one Shri Bhosale who was the Assistant to Senior PI who informed him that there was a firing near D'Mart Shopping Mall, Hiranandani. He deposed that thereafter both of them immediately went towards D'Mart Shopping Mall. He deposed that it was raining at that time. He deposed that many people had gathered near the Crisil House. He deposed that the commandos of Hiranandani were also present there and they told them that one person was shot dead when he was driving his motorcycle. He deposed that before they reached the spot, the injured was already taken to the Hospital and his motorcycle and helmet were kept on one side of the road. He deposed that one empty cartridge was also found on the spot. He deposed that in the meanwhile, PW.2­PI Tivatane and PW.137­PSI Rane also came there and they told them not to move from the spot. He deposed that thereafter PW.2­PI Tivatane and PW.137­PSI Rane went to the Hospital and both of them guarded the spot. 91

He deposed that PW.2­PI Tivatane and PW.137­PSI Rane returned to the spot at about 07:40 pm along with one person and prepared the spot­cum­ seizure panchanama (Exh.1377) of the empty cartridge, motorcycle and the helmet in presence of two panchas. He identified the helmet (Article­ 36) and the empty cartridge (Article­215)(lead).

110. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he was working in the Police department since the year 1985 and after his appointment, he was given training about arms. He stated that he had seen cartridges and he knew how a cartridge looked. He stated that he took him 10­15 minutes to reach the spot. He stated that at that time it was raining heavily. He denied that after the incident there was any traffic jam and that the traffic had come to a stand still. He stated that after he had gone to the spot he did not conduct any enquiry. He admitted that generally many vehicles and people used to move on the Central Avenue Road. He stated that he did not note down the name of any person who was present on the spot.

111. In cross­examination on behalf of the accused no.2, he stated that whenever he left the Police Station and whenever he returned to the Police Station he used to make the station diary entry. He stated that such registers were also maintained by the Police at the outpost. He stated that he was given a pocket diary for making entry regarding the duty allotted to him in which he used to mention the various places visited by him during the duty hours and the work done during duty hours. He stated that he did not make any entry in the station diary but he had made an entry in his pocket diary regarding the work done by him on 11/06/2011. He admitted that at the time of recording his statement he did not produce his pocket diary. 92

112. In cross­examination on behalf of the accused nos.5 and 11 he stated that the helmet (Article­36) was silver in color. He then stated that the helmet (Article­36) could be of ash color. He admitted that the helmet (Article­36) was not of white color.

113. PW.137­PSI Rane deposed that on 11/06/2011, he was on duty as the 1st alternative Station House Officer. He deposed that on that day at about 03:00 pm., he was the In­charge Station House Officer as the Station House Officer had gone out for lunch. He deposed that at that time, PW.2­PI Tivatane came there and informed him that a firing incident had taken place near D'Mart Shopping Mall, Hiranandani. He deposed that PW.2­PI Tivatane made the necessary station diary entry and then both of them went to the road which was outside the Crisil Building out gate, D'Mart Shopping Mall, Hiranandani. He deposed that some persons and two Beat Marshals of Powai were present there and on making enquiry with the people who were present there they came to know that four persons who had come on two motorcycles had injured one person who was also on a motorcycle by using firearm and that injured was taken to the Hiranandani Hospital by the commandos of Hiranandani. He deposed that they saw one motorcycle parked on the footpath and a white colored helmet was kept on it. He deposed that the Beat Marshals told them that the injured was driving that motorcycle. He deposed that after instructing the Beat Marshals to take care of the motorcycle and the helmet, himself and PW.2­PI Tivatane went to Hiranandani Hospital and on making enquiry with the Doctor they were informed that the injured had expired before he could be admitted in the Hospital. He deposed that from the licence which was found in the wallet of the deceased, they came to know that the name of the deceased was Jyoti Nipendra Dey. He deposed that 93 thereafter, on the directions of PW.2­PI Tivatane he recorded his statement (FIR) (Exh.290) on behalf of the State. He deposed that before recording the statement of PW.2­PI Tivatane he telephoned Police Station, Powai and requested for the crime number and the accidental death report number. He deposed that the duty Officer Shri. Londhe who spoke to him on the phone told him that the crime number be given as C.R.No. 256/2011, ADR number be given as ADR No.61/2011 and the case diary number as 44 at time 16:05 Hrs. He deposed that he also requested Shri Londhe to send for additional Police force to the spot of incident. He deposed that after the statement of PW.2­PI Tivatane was recorded in the Hospital, he prepared the inquest panchanama (Exh.305) in presence of two panch witnesses who were called for that purpose. He then gave the details of the injuries which were found on the person of J.Dey. He deposed that while the proceeding of the inquest panchanama were going on at about 05:45 pm the photographer (PW.8) came there. He deposed that the proceedings of the inquest panchanama were completed at about 06:10 pm.

114. He deposed that after the formalities of the inquest panchanama were completed, the seizure panchanama (Exh.306) of the clothes and other articles which were found on the person of J.Dey was prepared in presence of same panch witnesses as they were already present there. He deposed that the clothes of J.Dey were packed and sealed at that place in presence of the panch witnesses. He deposed that after the proceedings of inquest panchanama were complete the dead body was forwarded to the J.J. Hospital for Post­mortem. He deposed that thereafter, he went to the spot of the incident along with PW.2­PI Tivatane which was near the Crisil building. He deposed that when they went near the spot of the incident, one person by name Javed Ahmed Mohd. Ibrahim Ansari r/o. Kailas 94

Apartments, opposite S.M. Shetty School, Powai came to him and told him that he was a witness to the incident. He deposed that when he informed this fact to PW.2­PI Tivatane, he was told to take that witness along with them. He deposed that the said witness had shown the spot of the incident to them. He deposed that at about 07:40 pm, PW.2­PI Tivatane called for two panch witnesses from amongst the persons who had gathered near the spot namely Shri Baburao Sangappa Fulare and Shri Yakub Jafar Shaikh. He deposed that on being asked, both of them agreed to act as the panch witness for the spot panchanama.

115. He deposed that Javed Ahmed Mohd. Ibrahim Ansari showed the spot of the incident in presence of the panch witnesses. He deposed that the spot was on the road in front of Crisil building going from Hiranandani garden to the D' Mart Shopping Mall and near the road divider. He deposed that the road was in the East­West direction. He deposed that the road on the western side was going towards the D' Mart Shopping Mall and the road on the eastern side was going towards Go­karting. He deposed that the spot of the incident was on the road going from west to east near the divider. He deposed that the measurement of the spot was taken from various places. He then stated about the various measurements which were taken. He deposed that thereafter, the witness Javed Ahmed showed the spot where J.Dey was placed after the incident. He deposed that Bajaj Pulsar motorcycle of J.Dey bearing registration no. MH­03­AD­ 6918 and his helmet were seized in presence of panch witnesses. He deposed that thereafter they searched the place around the spot and during the search one black colored lead (Article­215) was found near the compound wall of Crisil building one feet away towards the southern side. He deposed that the lead (Article­215) was packed, sealed and labeled with the signatures of panch witnesses and himself. He deposed that the 95 proceedings of the spot panchanama (Exh.1377) were completed at around 08:50 pm. He deposed that from there, they returned to the Police Station, Powai and then first checked whether the station diary entry regarding this case was properly made by the Station House Officer or not and he found it to be correct.

116. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he had conducted the investigation as he was the Investigating Officer at that time till the case was transferred to the Crime Branch. He stated that PW.2­PI Tivatane was his superior Officer and that he was issuing directions to him from time to time. He stated that on the basis of the ID card which was found when he had gone to the Hiranandani Hospital he came to know that J.Dey was a Reporter. He stated that during the investigation conducted by him he did not try to find out in what manner the crime was committed as after the registration of the FIR, he did not conduct any investigation.

117. He stated that after he reached the spot he found some people present there but there was no crowd. He stated that there were 10 to 15 persons present there. He stated that the security guards of the building around the spot and the commandos of Hiranandani were not present there but two Beat Marshals of their department were present there. He stated that he did not record their statement. He stated that he did not note down the name and address of the person who told them that J.Dey was taken to the Hospital. He stated that he could not say whether the information which was given by the public was of a cognizable offence.

118. He stated that the Hiranandani Hospital was at a distance of less than 500 meters from the spot of incident. He stated that he did not know 96 the names of all the roads of that area. He stated that he did not know the names of the roads which were nearby to the spot of the incident. He stated that he did not know the name of the road which was in front of D'Mart Shopping Mall which was in front of the Spectra Building. He denied that the spot of the incident was on the road which was towards the entrance of Hiranandani. He stated that he could not give the name of the road on which the incident occurred as he was not knowing the name of the roads. He stated that at the time of preparing spot panchanama he did not try to find out the name of the road on which the incident had taken place as he was busy in his work there. He stated that the name of the road on which the incident took place was not mentioned in the spot panchanama. He admitted that while they were drawing the spot panchanama the street lights were on as it was evening time.

119. He stated that they reached the spot for preparing the spot panchanama after 06:30 pm. He stated that when they went there the surface was wet as it had rained on that day. He denied that the spot panchanama was not prepared on the spot. He stated that he could not say whether the Somerset was in front of the Crisil building. He stated that the D'Mart Shopping Mall was situated in the Spectra building. He stated that the spot of the incident was at a distance of about 8 to 9 meters from the main gate of D'Mart Shopping Mall. He denied that the spot was in the western direction. He stated that it was in the northern direction. He stated that he did not find the lead at a place between the spot of the incident and the place where the motorcycle of J.Dey was parked. He stated that he had inspected the place near the spot and he had found the lead (Article­215) there. He denied that the lead was found by the panch witnesses. He stated that he could not give the exact distance of the place where the lead was found and the main entrance gate of the Spectra 97 building. He stated that he did not mention the description of the lead in the spot panchanama. He denied that the lead (Article­215) was not black in color. He stated that at that time it was raining and as the lead was wet it seemed to be black in color. He stated that the lead was in the same condition when it was found at the spot as it was in the Court. He stated that the lead (Article­215) was pressed ¼ncysyh½ at the bottom. He admitted that no mark was made on the lead for its identification. He admitted that in the spot panchanama it was not mentioned that the lead which was found was in pressed ¼ncysyh½ condition. He stated that he could not say whether the lead was placed in the khaki wrapper (Article­ 214) and a label was affixed on it bearing the signatures of the panch witnesses and his signature. He stated that it was not mentioned in the panchanama that the lead was kept in an envelope (Exh.820).

120. At this stage, the attention of PW.137­PSI Rane was drawn to the labeled envelope (Exh.820) and he admitted that the label was bearing his signature and the signatures of the panch witnesses. Thereafter, he said that he could not say anything about the envelope (Exh.820). He stated that he could not say whether it was prepared later on and the lead was planted. He stated that he did not find any stains of mud or blood on the lead when it was found. He admitted that in the spot panchanama it was not mentioned that the lead was kept in a plastic bag. He stated that he did not know how the lead was kept in the plastic bag before the Court. He denied that he was already knowing the exact spot of the incident and no witness showed him the exact spot of the incident. He stated that till the time of spot panchanama he was not aware about the exact spot of the incident. He stated that PW.2­PI Tivatane had not brought the witness who had shown the spot. He stated that he had seen that witness for the first time when he had shown the spot of the incident. He stated that he 98 could not record the statement of that witness as he was involved in his work. He voluntarily stated that after returning to the Police Station he received information that API Smt. Korke had recorded the statement of that witness. He denied that the statement of the witness which was recorded by API Smt. Korke was treated as an FIR. He stated that he had read the statement of that witness after he reached the Police Station. He denied that the spot panchanama was not in his handwriting. He denied that the spot panchanama was an ante dated, ante timed and fabricated document prepared in the Police Station.

121. He stated that the inquest panchanama was in his handwriting. He admitted that the inquest panchanama was not prepared in the presence of the Doctor. He stated that the distance between the holes (of injuries) mentioned in the panchanama were approximate. He stated that the photographer from their department was not called as the distance between his Office at Crawford market and Powai was long and about one and half hours was required to reach Powai from Crawford market.

122. He stated that the printed FIR (Exh.290) was filled in by him. He admitted that in the printed FIR (Exh.290) it was not mentioned as to at which place the statement of PW.2­PI Tivatane was recorded. He clarified that it was recorded in the Hiranandani Hospital and that he might have missed to write it at that time as he was doing his work. He stated that the FIR was forwarded to the Magistrate on 13/06/2011 as 12/06/2011 was a Sunday and Court was closed. He stated that the Holiday Court was functioning on Sunday. He denied that the FIR (Exh.290) was an ante dated, ante timed and fabricated document. He stated that the entry regarding registration of the crime was always mentioned in the station diary. He stated that a crime register was also maintained in which the 99 crime numbers were serially mentioned.

123. In cross­examination on behalf of the accused no.2, he stated that PSI Shri Londhe was the Station House Officer on 11/06/2011 and as he had gone out for sometime, during that period he was the In­charge Station House Officer. He denied that on 11/06/2011, he did not meet him after he had gone out. He stated that he had made the station diary entry regarding the proceedings conducted by him after he returned to the Police Station. He stated that the investigation of this case was with him four about 7 to 8 hours and thereafter, the investigation was transferred to Crime Branch, Unit no.10.

124. He stated that on 11/06/2011, PSI Shri. Londhe had gone for lunch at about 02:45 pm. He stated no information about the incident was received prior to 03:00 pm. He stated that PW.1­Sandip Shikhre had informed PW.2­PI Tivatane about the incident at about 03:00 pm. He stated that PW.1­Sandip Shikhre got the information about the incident when he was in the Police Station. He stated that he did know who informed PW.1­Sandip Shikhre about the incident. He stated that they left the Police Station within 5 minutes of receiving the information about the incident. He stated that PW.2­PI Tivatane had told him that a firing incident taken place near D'Mart Shopping Mall, Hiranandani, Powai and that they should immediately go to the spot of the incident. He stated that at that time, PW.2­PI Tivatane did not tell him anything about the person who had done the firing, how many persons were there and whether any victims were there. He stated that they had left the Police Station assuming that a cognizable offence had taken place within the jurisdiction of Police Station, Powai. He stated that prior to leaving the Police Station, PW.2­PI Tivatane had made the necessary station diary entry. He stated 100 that he had recorded the statement of PW.2­PI Tivatane in the Hiranandani Hospital.

125. He stated that on 11/06/2011, it started raining between 12:00 noon to 01:00 pm. He stated that for sometime it was raining heavily but it was raining continuously. He stated that he could not say whether it was raining heavily when they were going to the spot. He stated that when they were going towards the spot the roads were wet. He stated that he did not examine the spot minutely when they first went there. He stated that when he was in the Hospital, he came to know that J.Dey was brought there by the commandos of Hiranandani. He stated that it took him about 40 minutes to record the statement of PW.2­PI Tivatane and that prior to that, he had called for the crime number and the ADR number from the Police Station, Powai.

ANALYSIS 126. While analyzing the evidence of PW.1­Sandip Shikhre, PW.2­PI Tivatane, PW.5­Girish Mishra, PW.8­Bhushan Kumar, PW.23­Sanjay Singh, PW.24­Zakirullah Qureshi, PW.84­HC Bhaskar Gode, PW.85­HC Kashinath Jadhav & PW.137­PSI Rane, it will be necessary to keep in mind that the FIR (Exh.290) was lodged against unknown persons. This means that at that time, the involvement of the accused persons who are before this Court was not revealed. It is only on 26/06/2011 i.e. after about 15 days of the incident that the names of the accused persons surfaced in this case. Therefore, till that time, none of the witnesses had the knowledge about the involvement of the accused persons in this case.

127. Now let's find out whether there is any doubt regarding the timing of the incident, the place of the incident, lodging of the FIR and the 101 recovery of the lead (Article­215) from the spot of the incident.

128. From the evidence of PW.1­Sandip Shikhre, PW.2­PI Tivatane, PW.3­Prakash Vaval, PW.23­Sanjay Singh, PW.24­Zakirullah Qureshi, PW.85­HC Kashinath Jadhav and PW.137­PSI Rane it is quite clear that the incident took place on 11/06/2011 between 02:30 pm to 03:00 pm and the news about the same was received at around 03:00 pm. In the present case, the exact time of the incident cannot be ascertained as the eye­witness was not available for examination. Having said this, there is nothing suspicious in the evidence of the above mentioned witnesses so as to create any doubt about the probable time at which the incident took place.

129. It was argued by the learned Advocate for the accused no.2 that J.Dey was very much alive when he was put in the car and had any enquiry been made with him, he could have given the description of the assailants. The argument is without any basis. There is absolutely no evidence to suggest that after being shot at J.Dey was in a position to speak. No such stand was taken during the cross­examination of the relevant witnesses. Therefore, the above argument needs to be rejected.

130. The learned Advocate for the accused no.2 also argued that the area in which the incident took place was thickly populated and it is difficult to believe that there were no eye­witnesses to the incident. It is necessary to state that as per the prosecution, there was one eye­witness to actual incident who had identified some of the accused during the Test Identification Parade which was conducted on 30/08/2011. By the order dated 14/09/2017 passed below application (Exh.1259) filed on behalf of the prosecution, the said eye­witness along with three other witnesses was 102 granted police protection. But, the said eye­witness failed to appear before the Court. Therefore, on 21/11/2017, the learned SPP filed application (Exh.1466) for issuance of non­bailable warrant against the witness on the ground that there was an apprehension that if bailable warrant was issued against him, he may run away. Considering the apprehension raised by the prosecution, on the same day, a non­bailable warrant was issued against the said witness. But the same could not be executed on him as the witness could not be traced out. Accordingly, the learned SPP filed pursis (Exh.1482) in that regard on 27/11/2017. The report dated 25/11/2017 was also annexed with the pursis in which the reasons for the non­execution of the non­bailable warrant on the witness were mentioned. The perusal of the said report shows that the non­bailable warrant could not be executed as the address of the witness was found to be incomplete. The report also states that the concerned Policeman who had gone to execute the warrant made enquiry with the general public living in that area but it was found that no such person was residing there. Under such circumstances, the eye­witness could not be examined on behalf of the prosecution. It is not necessary to discuss as to why in the cases like the present one, important witnesses either go missing or do not support the case of the prosecution. Necessary inference may be drawn.

131. In so far as the absence of any other eye­witness is concerned, it needs to be noted that it is the case of the defence itself that at the time of the incident it was raining heavily. Therefore, not many people would have ventured outside at that time. The Court can also take notice of the fact that ever since the flooding of Mumbai because of the heavy rains on and after 26/07/2005 most people of Mumbai avoid to go outside when it is raining heavily. This can be observed by any person who lives in Mumbai. Therefore, it is quite possible that at the time of the incident not 103 many people were walking on the road. That apart, the incident did not occur in such a manner so as to immediately catch the attention of the people who were passing by. It was not as if there was a huge explosion so as to attract the attention of the people who may have been present around that place or who were passing through that place. Also, it cannot be forgotten that after being shot at, J.Dey just fell down from his motorcycle. Some people may have thought that there was a minor accident and may have ignored the same. While some persons may have come forward to help J.Dey and on coming near to him they might have realized that he was shot at and accordingly the information must have been forwarded to the Police.

132. The judgments in the case of Ashraf Hussain Shah V. State of Maharashtra reported in 1996 CRI.L.J. 3147 and Habeeb Mohammad V. State of Hyderabad reported in AIR 1954 SC 51 were relied upon to contend that as the witness whose evidence was necessary for unfolding of the narrative was not examined, the case of the prosecution was vitiated. This Court has gone through the above judgments. The observations made by the Hon'ble Superior Courts in the said judgments were on the basis of the facts of those cases. The facts of those cases are quite different from the facts of the present case. Therefore, the above judgments are of no use to the defence. Having said this, the prosecution has given the reason as to why the eye­witness in this could not be examined. None of the Investigating Officers of this case was questioned on this aspect. Further, as will be seen in the later part of this judgment the defence has not been able to show any major omission, commission or illegality in the investigation of this case. Therefore, non­examination of the alleged material witness will not affect the case of the prosecution. 104

133. The learned Advocate for the accused nos.1,6 and 7 submitted that though the witnesses have deposed that they received the news at about 03:00 pm, the perusal of the FIR (Exh.290) shows that it is recorded therein that the incident took place at 02:30 pm. It may be noted that during the cross­examination of PW.2­PI Tivatane which was conducted in view of the order passed below application (Exh.448), it was brought on the record that he was informed about the time of the incident after making enquiry with the Police Constables, security guards and the public who were present on the spot. Also, PW.1­Sandip Shikhre who was the first person to receive the information was not asked about the time of the incident. In any case, the FIR would always contain the probable time of the incident unless the exact time of the incident is stated by someone. Therefore, the submission made by the learned Advocate for the accused nos.1,6 and 7 that the prosecution has failed to prove the time at which the incident took place on 11/06/2011 must fail.

134. In so far as the registration of the FIR (Exh.290) is concerned, from the evidence of PW.2­PI Tivatane it is clear that on reaching the Hiranandani Hospital and on seeing the bullet injuries on the body of J.Dey, he immediately directed PW.137­PSI Rane to record his FIR and accordingly the FIR (Exh.290) was registered. PW.2­PI Tivatane has explained the circumstances under which he was required to get the FIR (Exh.290) registered. It has come in his evidence that though some public was present on the spot no one from the public was coming forward to lodge the FIR and therefore, he decided to become the informant. It is not uncommon that whenever any incident of such a kind occurs, people gather to see what has happened but when they are asked to help the Police they back out. Under such circumstances, there is no reason to doubt the action taken by PW.2­PI Tivatane and in view of his evidence, it 105 can be said that he did the right thing by becoming the informant.

135. At this stage, it may be stated that an objection was raised by the learned Advocate for the accused no.2 that as the telephonic information about the incident clearly disclosed the commission of a cognizable offence, it was incumbent upon PW.2­PI Tivatane and PW.137­PSI Rane to have registered the FIR on the basis of the same and the failure on their part to register the FIR on the basis of the said information creates a suspicion about the case of the prosecution. The said submission has no basis. The message which was received was a cryptic message. PW.1­ Sandip Shikhre was only informed that some firing incident had taken place near the D'Mart Shopping Mall. He passed on the said information to PW.2­PI Tivatane. A cryptic message given on telephone cannot be treated as an FIR merely because that information was first in point of time. The object and purpose of a telephonic message is not to lodge a FIR but a request to the Officer in charge of the Police Station to reach the place of occurrence so as to enable him to find out the details of the offence. Further, the investigation does not start when the Police Officer leaves the Police Station for the scene of the offence to make inquiries, but it starts only when he reaches the scene of the offence. In the present case, the same course was followed by PW.2­PI Tivatane and PW.137­PSI Rane. Therefore, their actions cannot be faulted with. That apart, as stated earlier, at the time of the registration of the FIR (Exh.290), the accused persons were never in picture. The FIR was registered against unknown persons. Therefore, there was no motive for any one to falsely implicate them.

136. It was also argued by the learned Advocate for the accused no.2 that the fact that PW.2­PI Tivatane has admitted that the FIR (Exh.290) was 106 lodged after consultation with senior Police Officers also shows that the contents of the FIR (Exh.290) were manipulated. The said submission also has no basis. J.Dey was senior Journalist working with the daily 'Mid­Day'. The news about his murder had spread like wild fire. Therefore, it was but natural for the Senior Police Officers to visit the Hiranandani Hospital where J.Dey was taken after the incident and make enquiry with PW.2­PI Tivatane about what had happened. By any stretch of imagination, that does not mean that PW.2­PI Tivatane and the Senior Police Officers connived to register a false FIR. As stated earlier, at the time of the registration of the FIR (Exh.290), the accused persons were never in picture. Therefore, there was no motive for any one to register a false FIR to implicate them.

137. It was then argued by the learned Advocate for the accused nos.1,6 and 7 that PW.2­PI Tivatane did not give the details of the injuries found on the person of J.Dey in the FIR (Exh.290) which makes the case of the prosecution suspicious. It is well settled that an FIR is not an encyclopedia expected to contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case alone appear in it and the FIR need not contain each and every detail. Hence, the argument as advanced by the learned Advocate for the accused nos.1,6 and 7 cannot be accepted.

138. It is seen that there is delay of one day in sending the FIR (Exh.290) to the learned Magistrate. PW.137­PSI Rane has explained the reason for the delay. The incident took place on 11/06/2011 which was a Saturday. PW.137­PSI Rane has stated that the FIR (Exh.290) was forwarded to the learned Magistrate on 13/06/2011 as 12/06/2011 was a Sunday and Court was closed. Thus, the explanation given by him is satisfactory. In 107 any case, it is well settled that the delay or promptness of in lodging the FIR or its dispatch to Magistrate cannot alone be the yardstick to test of veracity or otherwise of an FIR as at times, a promptly lodged report may also be inaccurate or distorted and a delayed report may despite the delay remain a faithful version of what had actually happened. The Court has to consider the totality of circumstances. In the present case, as stated earlier, the explanation given by PW.137­PSI Rane regarding delay of one day in sending the FIR to the learned Magistrate has been satisfactorily explained and there is no reason to doubt him especially because at that time, the identity of the assailants was not known. Therefore, he had no motive to falsely implicate anybody in this case.

139. In so far as the proceedings of the inquest panchanama are concerned, it is clear from the evidence of PW.137­PSI Rane that the inquest panchanama (Exh.305) of the body of J.Dey was prepared in the Hospital in the presence of two panch witnesses. The evidence of panch PW.5­Girish Mishra also corroborates this fact. Also, during that process, PW.8­Bhushan Kumar Singh took the photographs (Exh.289 colly.) of the dead body of J.Dey.

140. It may be noted that PW.8­Bhushan Kumar Singh was a private photographer. During the cross­examination of PW.137­PSI Rane he was asked as to why a private photographer was called for taking the photographs of the dead body of J.Dey when the Police had its own photographer to which he has given a satisfactory reply that the photographer from their department was not called as the distance between his Office at Crawford market and at the Powai was long and it takes about one and half hours to reach Powai from Crawford market. Thus, it is seen that PW.137­PSI Rane did the right thing by immediately 108 summoning the said photographer. Also, had he waited for the photographer from their department it would have resulted in delay in taking the photographs of the dead body and then the defence would have argued that there was deliberate delay to manipulate things.

141. In so far as the spot of the incident is concerned, from the evidence of PW.137­PSI Rane who prepared the spot panchanama on the basis of the information given by one Javed Ahmed Mohd. Ibrahim Ansari r/o. Kailas Apartments, opposite S.M. Shetty School, Powai in presence of two panch witnesses namely Shri Baburao Sangappa Fulare and Shri Yakub Jafar Shaikh it is quite clear that the spot of the incident was on the road which was in front of Crisil building going from Hiranandani garden to the D' Mart Shopping Mall and near the road divider. In cross­examination, he has denied that he was already knowing the exact spot of the incident and no witness showed him the exact spot of the incident. It needs to be noted that no stand was taken/ suggestion was given by the defence that the spot of the incident as stated by PW.137­PSI Rane was incorrect or that the incident had taken place elsewhere. Under such circumstances, the non­examination of the panch witnesses to spot panchanama does not create any doubt about the spot of the incident more so for the reason that at that time, the identity of the assailants was not known and there was no motive for PW.137­PSI Rane to create a false or incorrect record of the spot panchanama. Further, the oral evidence of PW.137­PSI Rane is fully corroborated by the contents of the spot panchanama (Exh.1377). Also, the evidence of PW.1­Sandip Shikhre, PW.2­PI Tivatane, PW.3­Prakash Vaval, PW.23­Sanjay Singh, PW.24­Zakirullah Qureshi and PW.85­HC Kashinath Jadhav lends support to the fact that the incident took place on the road in front of Crisil building, Hiranandani. 109

142. The learned Advocate for the accused nos.1,6 and 7 submitted that the evidence of PW.137­PSI Rane that the incident took place on the road in front of Crisil building going from Hiranandani garden to the D' Mart Shopping Mall and near the road divider stands falsified by the evidence of PW.84­HC Bhaskar Gode who has stated that the spot of the incident was near the gate of the Crisil House facing the Central Avenue Road. The said argument is required to be rejected for the reason that PW.84­HC Bhaskar Gode was not connected in any manner with the proceedings of the spot panchanama which was drawn on 11/06/2011. He was examined by the prosecution to prove the seizure of the copies of CDs (Article­149, 150, 151) of the CCTV footage of 11/06/2011 of the Hiranandani D'Mart Shopping Mall, Sweta Building, Office of HSP. His evidence shows that on 11/06/2011 he had gone to the gate of the Crisil House facing the Central Avenue Road where the incident had taken place. However, when his entire evidence is read, it will be clear that he has no where stated that he had visited the spot of the incident at any time after the incident nor he has stated that he was present at the spot of the incident in any capacity when the spot panchanama was being drawn. In view of the above position, the evidence of PW.84­HC Bhaskar Gode cannot be accepted in the light of the evidence of PW.137­PSI Rane who had himself drawn the spot panchanama (Exh.1377) in presence of panch witnesses and the contents of the spot panchanama (Exh.1377). That apart, as stated earlier, as on 11/06/2011, the names of the accused persons was never in picture and there was no reason for PW.137­PSI Rane to create a false record of the spot panchanama.

143. The learned Advocate for the accused nos.1,6 and 7 also submitted that the video shooting of the entire proceedings of the spot panchanama ought to have been conducted and in absence of the same the case of the 110 prosecution becomes suspicious. The said submission is also required to be rejected as there is no such requirement in law. That apart, neither PW.2­ PI Tivatane nor PW.137­PSI Rane were cross­examined on this aspect. Therefore, the argument on this point cannot be entertained.

144. The learned Advocate for the accused nos.1,6 and 7 submitted that preparation of the spot panchanama is not an empty formality and that all the necessary details must be incorporated in the spot panchanama to enable the Court to ascertain whether the offence was committed by the accused persons or not. In this regard, reliance was placed upon the judgment in the case of Vijay Singh V. State of M.P. reported in 2005 CRI.L.J. 299. This Court has gone through the above mentioned judgment. The said judgment is not applicable to the facts of the present case as the facts of the present case are different from the facts of that case. That apart, though the above mentioned judgment is cited, the learned Advocate for the accused nos.1,6 and 7 did not point out what were the other necessary details which were required to be incorporated in the spot panchanama (Exh.1377). It may also be noted that the prosecution examined PW.6­Suhas Joshi who was an Architect and had prepared the sketch map (Exh.341) of the spot. It is not the stand of the learned Advocate for the accused nos.1,6 and 7 that there is any contradiction in the spot panchanama (Exh.1377) and the sketch map (Exh.341) with regard to the spot of the incident or the places which were around the spot of the incident. Therefore, it cannot be said that the spot panchanama (Exh.1377) is defective in any manner.

145. The learned Advocate for the accused no.1 submitted that the recovery of the lead (Article­215) from the spot of the incident is very much doubtful. It was submitted that though before the Court PW.2­PI 111

Tivatane stated that he found a lead near the spot of the incident he did not state this fact while giving his statement on the basis of which the FIR (Exh.290) was registered. It was thus urged that he has improved his version the before the Court. It is well settled that merely because a witness has not given all the details in his statement, his evidence in the Court cannot be rejected. The evidence of otherwise credit­worthy witness cannot be discarded merely because it was not available in his statement. In the present case, PW.2­PI Tivatane has explained that at the time of giving his statement he did not remember about finding of the lead. It is necessary to note that after PW.2­PI Tivatane reached the spot along with PW.137­PSI Rane he was there for hardly 10 minutes and during that period he made enquiry about the injured. He was informed that the injured was referred to the Hiranandani Hospital for treatment. He was also informed that a lead was found. The first priority of PW.2­PI Tivatane was to go to the Hiranandani Hospital and see whether he could get any information from the injured. Accordingly, he first went to the Hospital. Such action of PW.2­PI Tivatane was definitely in accordance with normal human conduct and psychology. He did the right thing by going to the Hospital first for verifying the condition of the injured. But as he was informed about the finding of a lead near the spot, before going to the Hospital he had issued directions to the Policemen present there to make arrangement to guard the spot so that the spot was not disturbed. This shows that he was very much alive to the situation. Thereafter, when he went to the Hospital and saw bullet injuries on the body of J.Dey, he directed PW.137­PSI Rane to immediately record his statement which was treated as FIR. All events might have happened fast and it is not unusual for a person to forget to tell some facts under such circumstances. That apart, the lead (Article­215) was seized on the same day thereafter. Further, the evidence of PW.2­PI Tivatane on this point is duly 112 corroborated by PW.3­Prakash Vaval, PW.85­HC Kashinath Jadhav, PW.137­PSI Rane, the spot panchanama (Exh.1377) and the station diary entry (Exh.295) in which it is clearly recorded that a lead was found near the spot of the incident. The situation would have been different had the lead (Article­215) been seized on the next day or thereafter. Also, there was no reason for PW.2­PI Tivatane to create a false record as the FIR was lodged against unknown persons. He did not have any reason to falsely implicate anybody in this case.

146. It was then argued that the case of the prosecution is that the 'lead' was found near the spot of the incident is suspicious because according to PW.85­HC Kashinath Jadhav he saw an 'empty cartridge' near the spot of the incident. It was submitted that an 'empty cartridge' was different from a 'lead'. The said submission has no merit. The words ammo, ammunition, cartridge, lead, dead bullet, pellet, projectile, round, shot etc. are synonyms of the word 'bullet'. People commonly use these words to describe a bullet/lead. Therefore, the fact that he described the article before the Court as 'empty cartridge' and as 'lead' is insignificant. What is important is that PW.85­HC Kashinath Jadhav has identified the lead (Article­215) before the Court to be the same which was found and seized from near the spot of the incident. As stated earlier, the fact that the lead (Article­215) was found on the spot of the incident is supported by PW.2­ PI Tivatane and PW.137­PSI Rane. It is also necessary to note here that when PW.2­PI Tivatane and PW.137­PSI Rane went to the spot on the first occasion and when the lead (Article­215) was seen on the spot, PW.85­HC Kashinath Jadhav was directed by them to guard the spot and accordingly, the spot was guarded. When PW.2­PI Tivatane and PW.137­PSI Rane returned from the Hiranandani Hospital after completing the formalities of the inquest panchanama, PW.137­PSI Rane seized and sealed the lead 113

(Article­215) along with the other articles. Further, in the cross­ examination of PW.85­HC Kashinath Jadhav no stand was taken that the lead (Article­215) was planted later on. In any case, there was no motive for any of the Officers to plant the lead (Article­215) on the spot as the identity of the assailants was not known at that point of time.

147. It was also argued that the fact that the description of the lead was not mentioned in the spot panchanama (Exh.1377), that the lead which was recovered was black in color but the lead (Article­215) was not black in color, that no mark was made on the lead for its identification, that there was delay in sending the lead to the FSL,Kalina and that PW.137­PSI Rane was not in a position to say whether the envelope (Exh.820) in which the lead (Article­215) was packed and sealed was prepared later on and the lead was planted and that no stains of mud or blood were found on the lead also makes the recovery of lead (Article­215) suspicious. It may be noted that there is no requirement of law that the description of the lead should be mentioned in the spot panchanama. In any case, the learned Advocate for the accused nos.1,6 and 7 could not explain as to what particular type of description of the lead was required for the identification of the lead. Similarly, in so far as the absence of marking on the lead for its identification is concerned, it needs to be noted that a lead is not as easily available in the open market like other articles. Therefore, it can be easily identified especially by a Police Officer who knows how a lead looks like. Regarding the submission that the lead which was recovered was black in color but the lead (Article­215) was not black in color is concerned it needs to be stated that after looking at the lead (Article­215) one person may say that it is black in color while another person may say that it is gray in color and still another may say that it is light black in color. It is a matter of perception and the Court cannot take 114 a hyper­technical approach on such issues.

148. Regarding delay in sending the lead (Article­215) to the FSL,Kalina for analysis, it may be noted that the lead (Article­215) was seized and sealed by PW.137­PSI Rane on 11/06/2011 in the evening. To be precise, the proceedings of the said panchanama concluded at around 08:50 pm. On the next day, the investigation of the case was taken over by the Crime Branch and PW.141­PI Gosavi was the Investigating Officer. After taking over the investigation, on 13/06/2011 he took the custody of the lead (Article­215) along with the other articles which were seized vide spot panchanama (Exh.1377) and forwarded the same to the FSL,Kalina on the same day for analysis through PW.94­Havaldar Suresh Ramraje. The CA report (Exh.230) shows that the articles were received in sealed condition by the FSL,Kalina. The reports of the FSL are directly admissible u/s.293 of Cr.P.C.,1973. In the present case, all the reports of the FSL were admitted in evidence when they were received by the Court. At that time or at the time of recording of the evidence, the defence did not challenge or object to the reports. If the defence had any doubt regarding the articles sent to the FSL,Kalina or the condition of the articles sent to FSL,Kalina for analysis then nothing prevented the defence from exercising their right to get the doubt which they had clarified. In fact, the learned Advocate for the accused no.1 had moved application (Exh.1546) for examining the Ballistic expert. But he withdrew the same. Thus, the available opportunity was not used. The prosecution has proved the seizure of the lead (Article­ 215) from the spot of the incident and that the same was sent to the FSL,Kalina in sealed condition. As stated earlier, the CA report (Exh.230) also indicates that the articles were received in sealed condition and the seal was intact. The report also shows that the analysis of the articles was done and the result of the analysis is mentioned in the report. Therefore, 115 in absence of any positive evidence it cannot be said that there was any tampering. As such, mere delay of a day or two sending the lead (Article­ 215) for analysis is of no consequence.

149. In so far as the statement made by PW.137­PSI Rane that he was not in a position to say whether the envelope (Exh.820) in which the lead (Article­215) was packed and sealed was prepared later on and the lead was planted, it does not help the defence in any manner. It may be noted that during cross­examination of PW.137­PSI Rane no stand was taken that the lead (Article­215) was not packed, sealed and labeled. The evidence of PW.137­PSI Rane that the lead was packed, sealed and labeled on the spot is cogent, reliable and trustworthy. That apart, it needs to be noted that whenever any article is sent to the FSL for analysis its original packing is opened by the Chemical Analyst and after the analysis, the article is returned in the packet of FSL. Therefore, the original packing is bound to change. This cannot be termed as tampering. In so far as the lead (Article­215) is concerned the same procedure was followed. As stated earlier, as per the CA report (Exh.230), the lead (Article­215) was received by the FSL,Kalina in sealed condition. After analysis, it was then deposited in the Court in sealed condition. There is nothing to suggest that during transit, there was any manipulation. It may also be once again stated that as on 11/06/2011 or 13/06/2011, the complicity of the accused persons with this case was not established. Therefore, there was no motive for PW.137­PSI Rane or anybody else to tamper with the lead (Article­215).

150. Regarding absence of stains of mud or blood on the lead (Article­ 215), it needs to be noted that it is the stand of the defence itself that it was raining heavily at the time of the incident. Therefore, it is quite possible that due to the rain, the lead (Article­215) became wet and the 116 stains of blood or mud were washed away. In fact, the CA report (Exh.231) also says that the blood stains on the lead (Article­215) were washed.

151. The learned Advocate for the accused no.2 argued that the road near which the incident occurred had a slope and considering the fact that it was raining heavily at the time of the incident it cannot be ruled out that the lead (Article­215) might have rolled down from the road to the place near the spot of the incident. Now, this argument is totally tangent to the earlier argument advanced by the learned Advocate for the accused no.1 that no lead was found near the spot of the incident and is liable to be rejected on this ground alone. That apart, no foundation was laid for such argument as during the cross­examination of PW.2­PI Tivatane or PW.3­ Prakash Vaval or PW.85­HC Kashinath Jadhav or PW.137­PSI Rane no such stand was taken. Hence, the said argument stands rejected.

152. From the above, it is clear that the objections raised by the defence about the time of the incident, spot of the incident, finding of the lead (Article­215) near the spot of the incident and the registration of the FIR (Exh.290) have no basis.

153. This is also the appropriate time to deal with the objections raised by the defence regarding the date and place of the arrest of the accused persons in connection with the present case.

OBJECTIONS REGARDING THE ARREST OF THE ACCUSED NOS.1 TO 7, 9 TO 12. OBJECTIONS REGARDING THE ARREST OF THE ACCUSED NO.1­ ROHEE TANGAPPAN JOSEPH @ SATISH KALYA, THE ACCUSED NO.2­ ANIL WAGHMODE AND THE ACCUSED NO.3­ABHIJIT SHINDE. 154. As per the prosecution, after the incident, in view of the secret information which was received, the location of the accused no.1­Rohee 117

Tangappan Joseph @ Satish Kalya, the accused no.2­Anil Waghmode and the accused no.3­Abhijit Shinde was traced to Rameshwaram, Tamil Nadu. On 25/06/2011, a team headed by PW.136­PI Kale consisting of PI Chavan, API Ajay Sawant and some others went to Rameshwaram and brought the above named three accused persons to Mumbai for their interrogation. During the interrogation, their complicity with the offence in question was established. Therefore, on 26/06/2011 they were arrested in connection with the present case in presence of panch PW.9­Malang Shaikh and Rashid Baig who were called for. The evidence of PW.136­PI Kale and the panch PW.9­Malang Shaikh is consistent on this point. PW.9­ Malang Shaikh has identified the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.3­Abhijit Shinde before the Court. He could not identify the accused no.2­Anil Waghmode. But that is not fatal to the case of the prosecution. After 26/06/2011, PW.9­Malang Shaikh had never seen any of the accused. He deposed before this Court after more than five years of the event. He was not expected to possess a photographic memory so as to identify the accused no.2­Anil Waghmode after so many years. In any case, PW.136­PI Kale has identified the accused no.2­Anil Waghmode to be the same person who was at Rameshwaram and who was brought to Mumbai along with the other accused persons and arrested by him.

155. The stand taken by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya in his statement u/s.313(b) Cr.P.C.,1973 is that he was called to the Office of Crime Branch Unit no.1 on 25/06/2011 and was made to sit there. His PAN card, driving licence and wallet were taken by PW.141­ PI Gosavi. He has stated that many persons used to meet him there and on 27/06/2011, he was directly produced in the Court. He has further stated that between 25/06/2011 to 27/06/2011, he was not taken anywhere. 118

The stand taken by the accused no.2­Anil Waghmode in his statement u/s.313(b) Cr.P.C.,1973 is that he was arrested on 24/06/2011 after he was called by PW.141­PI Gosavi to his Office of Unit no.1. The stand taken by the accused no.3­Abhijit Shinde in his statement u/s.313(b) Cr.P.C.,1973 is that he was arrested on 25/06/2011. Thus, it is seen that all the three accused persons have disputed that they were arrested on 26/06/2011.

156. The story about departure of PW.136­PI Kale and his team to Rameshwaram on 25/06/2011, their arrival at Rameshwaram and the finding of the accused nos.1,2 and 3 at that place was attacked on the ground that the prosecution did not produce the relevant station diary entries, the travel tickets, the statements of the team members of PW.136­ PI Kale were not recorded, the fact that they did not inform the local Police of Rameshwaram about the intention of their arrival there and that the articles which were found on the person of the accused nos.1,2 and 3 were not seized at Rameshwaram.

157. It is no doubt true that the prosecution has not placed on the record the travel tickets of PW.136­PI Kale and his team. This appears to be a lapse on the part of the prosecution. However, considering the fact that there is nothing in his evidence to suggest that he had any motive to falsely implicate the accused persons, this is a minor lapse. In any case, only for this reason, the fact that the accused nos.1,2 and 3 were found at Rameshwaram cannot be doubted. It has come in the evidence of PW.136­ PI Kale that after receiving the secret information he had orally informed his superior Officer about the fact that he was going to Rameshwaram. He had also made a station diary entry regarding going to Rameshwaram along with his team. He has specifically stated that in the station diary 119 entry he had written the names of the Officers who were to accompany him to Rameshwaram. He deposed that they had gone to Rameshwaram on 25/06/2011 in the morning by flight via Madurai. He stated that it took them four hours by taxi to reach Rameshwaram from Madurai. He stated that at Rameshwaram the accused persons were taken in custody at around 02:00 pm on 25/06/2011 from near the Rameshwaram temple. He stated that they returned to Mumbai via Chennai by Kingfisher Airlines at around 09:30 pm. He stated that the nearest airport from Rameshwaram was the Chennai Airport which was at at distance of about 190­200 kms from Rameshwaram. He stated that they had gone to the Chennai Airport from Rameshwaram in an Innova taxi. He stated that after returning to Mumbai the accused nos.1,2 and 3 were taken to the Office of the Crime Branch Unit no.6, Chembur and that he had given the intimation about his return to the Additional Commissioner of Police (Crime) and accordingly, the Additional Commissioner of Police (Crime) had visited the Office of the Unit no.6 after 11:00 pm and made enquiry with the accused nos.1,2 and 3 for about 20 minutes.

158. It may be noted that in view of the illustration (e) of section 114 of the Evidence Act,1872, there is a presumption that the official acts have been regularly performed. This presumption can be rebutted. In the present case, the fact that on the basis of a secret information PW.136­PI Kale went to Rameshwaram along with his team to catch hold of the accused nos.1,2 and 3 could have been easily rebutted by the defence by calling upon PW.136­PI Kale to produce the relevant station diary entry about the facts deposed by him. But the same were not called for. If there was any genuine doubt in the mind of the defence then nothing prevented the defence from calling for the relevant station diary entry. That apart, PW.136­PI Kale has given the details of the to and fro journey to 120

Rameshwaram. It is not the stand of the accused nos.1,2 and 3 that the route as mentioned by PW.136­PI Kale does not exist or that by that route it was impossible for PW.136­PI Kale and his team to go to Rameshwaram and return to Mumbai within 24 Hrs. Therefore, there is no reason to disbelieve the evidence of PW.136­PI Kale in that regard.

159. At this stage, it is necessary to note that on 27/06/2011, the accused nos.1,2 and 3 were produced before the learned Addl. Chief Metropolitan Magistrate for the purposes of their remand. At that time, no grievance was made by them that they were not brought from Rameshwaram or that they were picked up by the Officers of the Crime Branch from their house or any other place or that they were arrested prior to 26/06/2011. That was the first and the best opportunity for them to make their grievance regarding the date, time and the place of their arrest. But they did not do so. No reason has been given by them for not putting forward their grievance at the earliest point of time. Therefore, the stand taken by the accused nos.1,2 and 3 that they were arrested much prior to 26/06/2011 is a false stand.

160. Let's assume for a moment that PW.136­PI Kale did not make the necessary station diary entry at all before leaving for Rameshwaram. But in the facts of the present case even that will not be fatal to the case of the prosecution. It is the stand of the defence itself that the media was keeping a close watch on the investigation of this case as J.Dey belonged to their fraternity. Therefore, every Officer involved in the investigation of this case had to be a little more cautious. The Officers in this case were on a delicate mission and the steps taken by them in the investigation were required to be kept secret as there was fear of the facts leaking out which would have alerted not only the accused nos.1,2 and 3 but also the other 121 accused persons. At the same time, swift action was necessary. Under such circumstances, even if no station diary was made regarding going to Rameshwaram it would not have affected the case of the prosecution.

161. It also appears that after PW.136­PI Kale reached Rameshwaram along with his team, he did not inform the local Police about the reason for which they had come there. Section 48 of Cr.P.C.,1973 provides that a Police Officer may for the purpose of arresting without warrant any person whom he is authorized to arrest, pursue such person into any place in India. Section 48 of Cr.P.C.,1973 nowhere says that the Police Officers must inform the local Police if he is pursuing any person beyond his territorial jurisdiction. That apart, it is the case of the prosecution that the accused persons were constantly changing their locations. Also, as stated earlier, the media was keeping a close eye on the progress of the investigation of this case. Therefore, had PW.136­PI Kale told the local Police about their visit to Rameshwaram there was every possibility that the information could have leaked which would have alerted the accused persons and they would have ran away from that place. Therefore, the fact that PW.136­PI Kale did not inform the local Police about the purpose of his arrival to Rameshwaram is of no consequence.

162. In so far as the fact that the articles which were found on the person of the accused nos.1,2 and 3 were not seized then and there at Rameshwaram is concerned, it needs to be reiterated that though PW.136­ PI Kale and his team was authorized to arrest the accused nos.1,2 and 3 they did not do so and instead the accused nos.1,2 and 3 were brought to Mumbai. It is only after their thorough interrogation that their complicity with the crime was established and then it was decided to arrest them. Accordingly, at the time of their arrest the personal search was conducted 122 in presence of panch witnesses and the articles found on their person were seized. Therefore, there is nothing wrong in the approach of PW.136­PI Kale.

163. At this stage, another argument which was made regarding the place of arrest of the accused nos.1,2 and 3 needs to be addressed. It was argued that PW.136­PI Kale had gone to Rameshwaram with the intention to arrest the accused nos.1,2 & 3. They were then arrested at that place and without seeking the transit remand from the local Magistrate PW.136­ PI Kale brought them to Mumbai. The said argument is made without any basis. It may be noted that “Arrest” is a mode of formally taking a person in Police custody. But a person may be in custody of the Police in other ways also. What amounts to arrest is laid down in express terms in section 46 of Cr.P.C.,1973, whereas the words 'in custody' which are found in certain sections of the Evidence Act,1872 only denote surveillance or restriction on the movements of the person concerned which may be completed as for instance in the case of arrested persons or may be partial. The concept of being in custody cannot, therefore, be equated with the concept of formal arrest, as there is difference between the two. Also, though a Police Officer is empowered to arrest any person but such powers are to be exercised subject to the provisions of the law. When a Police Officer arrests any person, the arrest has the effect of curtailing the personal liberties of that person which are guaranteed to him under the Constitution of India. Therefore, such powers are required to be exercised with greater caution. No arrest can be made simply because it is lawful for a Police Officer to do so. The existence of power of arrest is one thing and the justification for the exercise of the same is another thing. It is always prudent on the part of the Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no 123 arrest is made without a reasonable satisfaction reached after some investigation is done as to the complicity of the person with the offence before arresting him. In the present case, as observed earlier it can be seen that on receiving a secret information, PW.136­PI Kale went to Rameshwaram along with his team and took custody of the accused nos.1,2 and 3. They were then brought to Mumbai and after their interrogation when their involvement in the murder of J.Dey was prima facie established they were arrested by PW.136­PI Kale. There is nothing wrong in the approach of PW.136­PI Kale. In fact, his approach shows that he was well aware about the requirements of the law. Therefore, as he did not arrest the accused nos.1,2 and 3 at Rameshwaram there was no need for him to produce them before the local Magistrate there and obtain transit remand.

164. It may be noted that some mobile phones and SIM cards were recovered during the personal search of the accused nos.1 and 2. A mobile phone or a SIM card is not an incriminating article by itself. Any person can have a mobile phone or a SIM card with him. It cannot be compared with a weapon which if found on the person must be taken care of. A mobile phone or a SIM card can be said to be incriminating only if after analyzing the data in it something is found to connect the accused with the crime. Therefore, there was no need for PW.136­PI Kale to seize the mobile phones and SIM cards at Rameshwaram itself.

165. As stated earlier, the stand taken by the accused nos.1 and 2 in their statement u/s.313(b) Cr.P.C.,1973 is that they were called to the Office of the Crime Branch Unit no.1 by PW.141­PI Gosavi. However, at the relevant time, PW.141­PI Gosavi was attached to the Office of the Crime Branch Unit no.10 at Chembur. Therefore, there was no reason for him to 124 call the accused nos.1 and 2 to the Office of the Crime Branch Unit no.1 which is at the Crawford market (Near CSTM). That apart, during cross­ examination of PW.141­PI Gosavi no suggestion was given to him that the accused nos.1 & 3 were arrested on 25/06/2011 and the accused no.2­ Anil Waghmode was arrested on 24/06/2011. The above facts further falsify the claim of the accused nos.1,2 and 3.

166. In so far as the stand taken by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya in his statement u/s.313(b) Cr.P.C.,1973 is concerned, it may be additionally stated that he had filed application (Exh.15) making some prayers before the Court. The prayers made in the application are not relevant for the present purposes. In that application, he had claimed that he was arrested on 20/06/2011. In so far as the accused no.2­Anil Waghmode is concerned, initially he had filed application (Exh.2) for return of the custody of the Qualis vehicle (Article­ 236) which was seized during investigation. He had also filed application (Exh.3) for grant of bail. Thereafter, he had filed another application (Exh.129) for bail. It may be stated that in all the three applications, he had specifically stated that he was arrested on 26/06/2011. It is not the case of the accused no.2­Anil Waghmode that the said date was written inadvertently. Thus, it is seen that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.2­Anil Waghmode have themselves changed their stand in the statement which was recorded u/s.313(b) of Cr.P.C.,1973 regarding the dates of their arrest which makes their stand even more unreliable. Also, if the case about illegal detention of the accused nos.1,2 and 3 was genuine then nothing prevented them from making a complaint about their illegal detention to the learned Addl. Chief Metropolitan Magistrate before whom they were produced on 27/06/2011 for the purposes of the remand. Further, they could have also 125 approached the Hon'ble High Court seeking a writ of habeas corpus and compensation for their illegal detention. But that was also not done. Therefore, it has to said that the stand taken by the accused nos.1,2 and 3 that they were arrested prior to 26/06/2011 is nothing but an afterthought.

167. In so far as the fact that the statements of PW.136­PI Kale and his team members were not recorded, section 161 of Cr.P.C.,1973 does not mandate that the statements each person associated with the case should be recorded. The power of the Investigating Officer u/s.161 of Cr.P.C.,1973 to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement is discretionary. Therefore, the said objection is rejected.

168. It was also argued that the prosecution has not explained as to when and how the secret information about the location of the accused nos.1,2 and 3 was received. In this regard, as per section 125 of the Evidence Act,1872 no Police Officer can be compelled to say whence i.e. from what place or source he got the information as to commission of any offence. Therefore, the submission that the prosecution has not explained as to when and how the secret information was received about the location of the accused nos.1,2 and 3 at Rameshwaram is required to be rejected.

169. It may also be noted that after the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was brought to Mumbai, PW.136­PI Kale informed this fact to his relatives on 25/06/2011. What PW.136­PI Kale did was correct. Had he not informed the relatives of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya they might have approached the Police 126 for lodging a missing report of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya or they could have lodged a complaint against PW.136­PI Kale for illegally detaining the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. The fact that after the arrest of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya neither he nor any of his family members came forward and claimed that he was illegally detained also shows that the accused nos.1­Rohee Tangappan Joseph @ Satish Kalya was arrested on 26/06/2011 and not prior to that.

170. The learned Advocate for the accused no.1 also contended that the trial is vitiated on the ground that after the accused nos.1 to 3 were brought to Mumbai from Rameshwaram they were not medically examined. In this regard, it may be noted that in paragraph no.36 of the deposition, PW.136­PI Kale has stated that “After the accused were brought to Mumbai their medical check up was not done”. It needs to be noted that the question put to PW.136­PI Kale was tricky. He was not directly asked whether after the accused persons were brought to Mumbai and after they were "arrested" they were taken for medical examination. Section 54 of Cr.P.C.,1973 provides for medical examination of the arrested person by Medical Officer. Section 54 of Cr.P.C.,1973 comes into play only after the accused are arrested and not before that. Therefore, there was no question of referring the accused persons for medical examination before they were arrested. Let's assume for a moment that even after the arrest, the accused persons were not referred for medical examination. It is not the stand of the accused nos.1 to 3 that they were assaulted and tortured at any point of time. No such grievance was raised by any of them when they were produced before the learned Addl. Chief Metropolitan Magistrate on 27/06/2011 for the purposes of the remand. Therefore, in the facts of the present case, the alleged non­compliance of 127 the provisions of section 54 of Cr.P.C.,1973 is of no consequence.

171. The steps taken by PW.136­PI Kale during the investigation were also sought to be doubted on the ground that after taking over the investigation he did not prepare a case diary of 'Unit no.6' and that he did not 'personally' make any entry in the case diary of the Unit no.6. The said submission has no basis. Just to recall, PW.136­PI Kale was not the Investigating Officer. He was only assisting PW.141­PI Gosavi who was the Investigating Officer at that time. As per section 172 of Cr.P.C.,1973 it is the Investigating Officer who has to maintain the case diary. Therefore, there was no question of PW.136­PI Kale maintaining any case diary or making any entry in it. Also, once the case diary is prepared then the same has to be continued even if the investigation is later on transferred to some other Officer or department. The law does not contemplate preparation of separate case diaries in case there is any change of the Investigating Officer or the department conducting the investigation.

172. It was next contended that panch PW.9­Malang Shaikh is a habitual panch. The said submission has no basis. It is no doubt true that he had acted as a panch witness earlier on one or two occasions. But that does not mean that he was habitual panch witness as there is nothing to show that he was dependent upon the Police or was under the thumb of the Police. Also, there is nothing in the evidence of PW.136­PI Kale to suggest that he had specifically called for panch PW.9­Malang Shaikh for acting as a witness.

173. The credit of PW.9­Malang Shaikh was also sought to be shaken by labeling him as a liar. It was contended that though prior to deposing before this Court he had deposed in another case in the Court room no.55 128 he denied having done so. The perusal of his cross­examination will show that he stated that he did not remember whether he had deposed in the Court in any matter within last one year. He was then shown the copy of his deposition which was recorded in MCOC Case no.10/2010 on 30/08/2010 but he denied that he had deposed in that case. On the basis of the above, it was argued that his evidence cannot be relied upon. It is quite possible that due to the fear of being branded as a regular panch witness PW.9­Malang Shaikh might have denied of having deposed in the MCOC Case no.10/2010. That apart, it needs to be noted that the memory of panch PW.9­Malang Shaikh was not refreshed about the facts of that case. What he was asked was whether he had deposed in the 'MCOC Case no.10/2010'. Now, only on the basis of the case number it will be very difficult for anybody to remember the facts of that case. Even an Advocate who has dealt with a lot of cases may not be able to narrate the facts of a particular case on the basis of its case number. Therefore, it would be too much to expect from panch PW.9­Malang Shaikh who was not much educated to recall the facts of the case only on the basis of the case number. Also, even if it is assumed that he was making a false statement on that point then the maxim "falsus in uno falsus in omnibus” is not applicable in India. Therefore, as his evidence on other points is reliable, it can be acted upon.

174. At this stage, it may be noted that the learned Advocate for the accused no.2 argued that before calling PW.9­Malanag Shaikh for acting as panch witness, PW.136­PI Kale should have at least made an attempt to search for independent witness and the failure on his part to do so is fatal to the case of the prosecution. This Court has already observed above that the evidence of panch PW.9­Malang Shaikh is reliable and he cannot be discredited only because he had acted as a panch on earlier occasion. It is 129 also necessary to note that considering the nature of the incident and considering the general image of the accused no.12­Chhota Rajan in the Society even if PW.136­PI Kale had requested somebody else to act as a panch witness, there was every possibility that no one would have come forward to help the Police due to the fear of the accused no.12­Chhota Rajan. Therefore, in the facts of the present case, just because PW.136­PI Kale did not make an attempt to search for a witness who had not acted as a panch earlier is not fatal to the case of the prosecution.

175. The learned Advocate for the accused no.1 relied upon the judgment in the case of D.K.Basu V. State of West Bengal reported in AIR 1997 SC 610 to contend that the Police did not follow the guidelines issued by the Hon'ble Supreme Court of India while arresting the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. It has already been observed above that the arrest of the accused nos.1 to 3 was made after following the due procedure as provided under Cr.P.C.,1973. Also, as stated earlier, if the guidelines issued by the Hon'ble Supreme Court of India or the provisions of Cr.P.C.,1973 were not adhered to by the Police at the time of arresting the accused persons, they could have raised appropriate grievance when they were produced before the learned Addl. Chief Metropolitan Magistrate for the purposes of their remand. But admittedly, no such grievance was raised. That apart, any alleged illegality committed while arresting the accused persons cannot have the effect of vitiating the trial.

OBJECTIONS REGARDING THE ARREST OF THE ACCUSED NO.4­NILESH SHEDGE. 176. During the course of oral arguments, the learned Advocate for the accused no.4 did not raise any dispute regarding the date or the place of the arrest of the accused no.4. However, in the statement u/s.313(b) of 130

Cr.P.C.,1973, the accused no.4­Nilesh Shedge has stated as follows regarding his arrest:

“Q.251: As per personal search and arrest panchanama (Exh.512) you accused was brought from Solapur and arrested on 26/06/2011 by the API, Crime Detection Branch, Unit no.6, Mumbai at that place. What do you have to say about it?

Ans.: I was taken from my house. A constable from Dharavi police station had come to my house. At that time, I had gone out for selling vegetables. Therefore, my wife came to call me. Then I went to my house alongwith her. I was told by the constable that officer Gosavi had called me and accordingly I went alongwith that constable. I was made to sit there and on 27th I was placed in veil and produced in the Court. I asked them why I was being produced in the Court. But I did not receive any reply. I was taken by the constable on 25th in the afternoon.

Q.322: It has come in the evidence of PW.133­API Gopale that at that time he arrested you accused­Nilesh Shedge in connection with this case. What do you have to say about it ?

Ans.: It is not correct. I was made to sit in the office of crime branch for two days.”

177. From the stand taken by the accused no.4­Nilesh Shedge, it can be seen that he has firstly claimed that on 26/06/2011 he was taken by the Police from his house. Then he changed his stand and stated that a Constable from Dharavi had come to his house but at that time he was not present in his house and therefore, his wife came to call him and when he went to his house along with her, the Constable told him that PW.141­PI Gosavi had called him. Therefore, he went with that Constable. According to him, he was made to sit there and on 27/06/2011 he was placed in veil and produced in the Court. He then again changed his stand and stated that he was taken by the Constable on 25/06/2011. That is not the end. 131

To another question he stated that he was made to sit in the Office of Crime Branch for two days. Thus, it is seen that the accused no.4­Nilesh Shedge has taken inconsistent stand and his statements cannot be relied upon. The falsity of the claim made by the accused no.4­Nilesh Shedge is further clear from the fact that in the written notes of arguments (Exh.1708) he has claimed that he was arrested at Solapur.

178. It may also be noted that the accused no.4­Nilesh Shedge had filed application (Exh.145) seeking permission to meet his relatives. In that application, he had stated that on 27/06/2011, the Officers from the DCB CID had visited his house and took him under the pretext of making enquiry and then implicated him in this case. This stand taken by the accused no.4­Nilesh Shedge further falsifies his claim of the accused no.4­ Nilesh Shedge regarding his date of arrest. On the other hand, in view of the evidence of PW.133­API Gopale it has to be said that the prosecution has proved that the accused no.4­Nlesh Shedge was arrested on 26/06/2011 in the office of DCB CID, Property Cell, Mumbai and the same is duly corroborated by the personal search and arrest panchanama (Exh.512).

OBJECTIONS REGARDING THE ARREST OF THE ACCUSED NO.5­ARUN DAKE, THE ACCUSED NO.6­MANGESH AAGVANE AND THE ACCUSED NO.7­SATISH GAIKWAD. 179. As per the prosecution, after the incident, on 26/6/2011, the accused no.5­Arun Dake, the accused no.6­Mangesh Aagvane and the accused no.7­Sachin Gaikwad were arrested on 26/06/2011 by PW.134­PI Pasalwar in presence of panch PW.10­Habib Mansuri and Abdul Matin Niyaz Ahmed Rangrez who were called for. The evidence of the panch PW.10­Habib Mansuri and PW.134­PI Pasalwar is consistent on this point 132 and is duly corroborated by the personal search and arrest panchanama (Exh.504).

180. The arrest of the accused nos.5,6 and 7 was challenged on various grounds. They are discussed below.

181. It was argued that the evidence of panch PW.10­Habib Mansuri cannot be relied upon as the time of the personal search and arrest panchanama (Exh.504) he was not shown the faces of the accused persons and that he has not identified the accused persons in the Court. The said argument deserves to be rejected as it is advanced without laying any foundation for the same in the cross­examination of this witness. It is no doubt true that at the relevant time, the accused nos.5,6 and 7 were produced before panch PW.10­Habib Mansuri in a veil. But he has stated that when their names were asked they gave their correct names. The defence did not challenge the fact that the three persons whose search was conducted were not the accused nos.5,6 and 7. Before this Court, the identity of the accused nos.5,6 and 7 was never disputed. No suggestion was given to panch PW.10­Habib Manusri that the persons whose personal search was conducted and who were arrested on 26/06/2011 in his presence were not the accused nos.5,6 and 7. It is also not the stand of the defence that some persons other than the accused nos.5,6 and 7 were produced before the panch PW.10­Habib Mansuri on that day. From the evidence of PW.134­PI Pasalwar it is quite clear that those three persons were none other than the accused nos.5,6 and 7. He was not questioned as to why the accused nos.5,6 and 7 were produced in a veil before the panch PW.10­Habib Mansuri. There is nothing in his evidence to doubt him. His evidence is further corroborated by the personal search and arrest panchanama (Exh.504). 133

182. It was then argued that the arrest of the accused nos.5,6 and 7 on 26/06/2011 as claimed by the prosecution is doubtful as the panch PW.10­Habib Mansuri was not informed by PW.134­PI Pasalwar as to from where and when the accused persons were arrested. The said submission has no basis as panch PW.10­Habib Mansuri and the other panch were specifically called to the Office of PW.134­PI Pasalwar as the accused nos.5,6 and 7 were to be arrested and their personal search was to be conducted in presence of the panch witnesses. Therefore, there was no question of informing the panch witnesses as to from where and when the accused nos.5,6 and 7 were arrested.

183. At this stage, it is necessary to note that in the statement of the accused no.5­Arun Dake which was recorded u/s.313(b) Cr.P.C.,1973, he has denied that he was arrested on 26/06/2011. He has taken a stand that he was called to the Office of Crime Branch Unit no.1 on 21/06/2011 and was made to sit there. He has stated that he was produced before the learned Chief Metropolitan Magistrate, Esplanade on 26/06/2011 and was implicated in this case. The stand taken by him is nothing but an afterthought. No foundation was laid for the same during the cross­ examination of the concerned witnesses. The stand taken by the accused no.6­Mangesh Aagvane in his statement which was recorded u/s.313(b) Cr.P.C.,1973 is that he was arrested on 25/06/2011. The stand taken by the accused no.6­Mangesh Aagvane is also an afterthought because no such stand was ever taken by him during the course of recording of the evidence of the concerned witness. The stand taken by the accused no.7­ Sachin Gaikwad in his statement which was recorded u/s.313(b) Cr.P.C.,1973 is that on 23/06/2011, he had gone to the Office of the Crime Branch Unit no.1 on being called by PW.141­PI Gosavi and when he 134 went there he was detained there. According to him he was then produced in the Court on 26/06/2011. This is also nothing but an afterthought. The answer given by the accused no.7­Sachin Gaikwad shows that like the accused nos.5 and 6, he is also a liar. Firstly, as observed earlier, PW.141­ PI Gosavi was attached to the Office of the Crime Branch Unit no.10, Chembur. Therefore, he had no reason to call the accused no.7­Sachin Gaikwad in the Office of the Crime Branch Unit no.1 which was at Crawford market (Near CSTM). That apart, the accused nos.5,6 and 7 were produced before the learned Addl. Chief Metropolitan Magistrate on 27/06/2011 for the purposes of the remand along with the other accused. No accused was produced before the learned Addl. Chief Metropolitan Magistrate on 26/06/2011. It may also be noted that the accused no.7­ Sachin Gaikwad had filed application (Exh.135) for grant of bail. In that application, he had taken a stand that he was in fact arrested on 26/06/2011. Similarly, the accused nos.6 and 7 had then filed a joint application (Exh.377) for grant of bail. In that application also, no stand was taken by them that they were arrested prior to 26/06/2011. All the above facts show the falsity of the claim made by the accused nos.6 and 7.

184. It is also necessary to note that on 27/06/2011 when the accused nos.5,6 and 7 were produced before the learned Addl. Chief Metropolitan Magistrate, Esplanade for the purposes of their remand no grievance was made that they were illegally detained or that they were not arrested on 26/06/2011 as shown in the remand papers. That was the first and the best opportunity for them to make the grievance if they were really arrested prior to 26/06/2011. This further falsifies the stand taken by the accused nos.5,6 and 7 that they were not arrested on 26/06/2011.

185. It was argued that at the time of the arrest of these accused persons 135

PW.138­PI Bhosle was also present there but PW.138­PI Bhosle has not uttered a word about the arrest of these accused persons and as such, it cannot be said that the accused nos.5,6 and 7 were arrested on 26/06/2011. It may be noted that these accused persons were arrested by PW.134­PI Pasalwar and not by PW.138­PI Bhosle. The role of PW.138­PI Bhosle was restricted to recording of the disclosure statement made by the accused no.6­Mangesh Aagvane and drawing the subsequent panchanama of the motorcycle recovered at his instance. Therefore, he had no business to make any statement on this point. That apart, it has come in his evidence that on 26/06/2011, three accused persons of this case were arrested by his Unit. Nothing more was expected from him at that time as PW.134­PI Pasalwar had already deposed about the personal search and arrest of the accused persons who were arrested.

186. As in the case of panch PW.9­Malang Shaikh the evidence of panch PW.10­Habib Mansuri was also sought to be doubted on the ground that he was a habitual panch witness and that he was not aware as to when the accused nos.5,6 and 7 were arrested. It is no doubt true that PW.10­Habib Mansuri had acted as a panch witness earlier on a few occasions. But that does not mean that he was habitual panch witness as there is nothing to show that he was dependent upon the Police or was under the control of the Police. There is nothing in the evidence of PW.134­PI Pasalwar to suggest that he had specifically called for PW.10­Habib Mansuri for acting a panch witness. In so far as the other submission is concerned, it needs to be noted that the very purpose for which PW.10­Habib Mansuri was called was that the accused nos.5,6 and 7 were to be arrested. He was informed about the same after he went to the Office of the Property Cell of the Crime Branch. As such, there was no question of informing him about the arrest of the accused nos.5,6 and 7 before they were arrested. 136

187. It was next contended that in the personal search and arrest panchanama (Exh.504) neither the name of the Police Officer who took the personal search of the accused nos.5,6 and 7 nor the name of the Officer who had caught hold of the accused persons was mentioned and as such the personal search and arrest panchanama was suspicious. There is no requirement of law that in the panchanama the name of the Officer who conducted the personal search of the accused or the name of the Officer who actually caught hold of the accused must always be mentioned. As stated earlier, the evidence PW.134­PI Pasalwar and panch PW.10­Habib Mansuri on the point of the arrest of the accused nos.5,6 and 7 is cogent, reliable and trustworthy. Hence, the said argument cannot be accepted.

188. It was also argued that in the personal search and arrest panchanama (Exh.504) the name of the place where the accused persons were arrested is not mentioned. But that place could not have been mentioned in the panchanama as the accused persons were brought to the Office of Property Cell of the Crime Branch and after their interrogation they were arrested at that place only. The panchanama in that regard was also prepared at that place only. Therefore, it was not necessary to make a special mention in the panchanama about that place.

189. It was next argued that the arrest of the accused nos.5,6 and 7 was illegal on the ground that PW.134­PI Pasalwar failed to produce the order by which he was posted in the Property Cell of the Crime Branch though he was called upon to produce the same. The said submission has no basis. There is nothing on the record to draw any adverse inference against PW.134­PI Pasalwar. PW.134­PI Pasalwar was assisting PW.141­PI Gosavi in the investigation at the relevant time. As per section 156(2) of 137

Cr.P.C.,1973 no proceeding of a Police Officer can at any stage be questioned on the ground that the case was one which he was not empowered to investigate. Therefore, in view of the above position, even if it assumed that PW.134­PI Pasalwar was not empowered to arrest the accused nos.5,6 and 7 his action of arresting them cannot be called in question. Hence, the objection raised on this point cannot be sustained.

190. It was next argued that the failure on the part of PW.134­PI Pasalwar to record reasons in the panchanama for arresting the accused nos.5,6 and 7 also makes the arrest of these accused persons illegal. It may be noted that in the personal search and arrest panchanama (Exh.504) it is specifically mentioned that the accused nos.5,6 and 7 were made known the reasons for their arrest in this case. Not only that, their relatives were also informed about it. That apart, as stated earlier, when the accused nos.5,6 and 7 were produced before the learned Addl. Chief Metropolitan Magistrate, Esplanade on 27/06/2011 for the purposes of the remand they did not make any grievance on this point. Nothing prevented them from making a grievance to the learned Addl. Chief Metropolitan Magistrate in that regard. Further, even if it is assumed that there was some illegality in the arrest of the accused nos.5,6 and 7, that will not vitiate the trial. Therefore, the argument made on this point cannot be accepted.

OBJECTIONS REGARDING THE ARREST OF THE ACCUSED NO.9­DEEPAK SISODIYA. 191. It was argued by the learned Advocate for the accused no.9­Deepak Sisodiya that the accused no.9­Deepak Sisodiya was illegally detained from 17/07/2011 till 22/07/2011 and for this reason the trial against the accused no.9­Deepak Sisodiya is vitiated. It was submitted that according to PW.143­ACP Duraphe the accused no.9­Deepak Sisodiya was arrested 138 on 22/07/011 whereas it has come in the evidence of PW.124­DCP Dr. Cherring Dorje that PW.103­API Dewoolkar had informed him that the accused no.9­Deepak Sisodiya was arrested on 17/07/2011. According to the learned Advocate for the accused no.9, the failure of the prosecution to examine the Officer who actually arrested the accused no.9­Deepak Sisodiya confirms the fact that the accused no.9­Deepak Sisodiya was illegally detained. The said submission has no basis. The perusal of the remand papers dated 20/07/2011 show that after the accused no.9­ Deepak Sisodiya was arrested at Nainital, the local Court had granted his transit remand till 25/07/2011. During that period he was brought to Mumbai on 22/07/2011 and produced before the MCOC Court for the purposes of remand in connection with the present case. At that time, the accused no.9­Deepak Sisodiya was represented by Advocate Shri Sejpal. But neither the accused no.9­Deepak Sisodiya nor his Advocate made any grievance about the alleged illegal detention. No grievance was raised even when the accused no.9­Deepak Sisodiya was produced before the MCOC Court for extension of his remand. Therefore, the grievance now made by the learned Advocate for the accused no.9 that he was illegally detained from 17/07/2011 till 22/07/2011 cannot be entertained and the same has to be rejected. In any case, as observed earlier, it is well settled that any illegality in the arrest of the accused does not vitiate the trial.

OBJECTIONS REGARDING THE ARREST OF THE ACCUSED NO.10­PAULSON PALITARA. 192. As per the prosecution, during the course of the investigation, on 01/09/2011, the complicity of the accused no.10­Paulson Palitara with respect to the offence in question was established and 05/09/2011, he was arrested by PW.133­API Gopale in presence of the panch witnesses namely Shri Sharad Laxman Shinde and PW.18­Mohd. Abbas Jilani who were called for. It may be noted that the evidence of the panch PW.18­ 139

Mohd. Abbas Jilani and PW.133­API Gopale is consistent on this point and is duly corroborated by the personal search and arrest panchanama (Exh.554).

193. The arrest of the accused no.10­Paulson Palitara was challenged on various grounds. They are discussed below.

194. It was firstly argued that the accused no.10­Paulson Palitara was already arrested even before the panch PW.18­Mohd. Abbas Jilani was called as he has admitted that when he went to the Property Cell of the Crime Branch, he saw the accused no.10­Paulson Palitara already sitting there along with the other Officers. The said submission has no basis. It is the case of the prosecution that the accused no.10­Paulson Palitara was brought to the Office of the Property Cell on 05/09/2011 for the purposes of interrogation. After the interrogation, when his complicity with the offence was established, PW.133­API Gopale called for the two panch witnesses and in their presence the accused no.10­Paulson Palitara was arrested. As the accused no.10­Paulson Palitara was brought there for interrogation, he was bound to be there when PW.18­Mohd. Abbas Jilani was called to that office.

195. The accused no.10­Paulson Palitara has taken the stand that he was picked up on 02/09/2011 itself and was illegally detained in the Property Cell of the Crime Branch till 06/09/2011. In this regard, the learned Advocate for the accused no.10 has relied upon the evidence of PW.82­ Amir Khan and PW.96­Prasad Shah. It needs to be noted that both these witnesses were not connected with the arrest of the accused no.10­Paulson Palitara. They were examined by the prosecution for other purposes. But both of them did not support the case of the prosecution apparently for 140 the reason that PW.82­Amir Khan was a close friend of the accused no.10­ Paulson Palitara and PW.96­Prasad Shah was the brother­in­law of the accused no.10­Paulson Palitara. Having said this, it has come in the cross­ examination of PW.96­Prasad Shah that he was informed by the wife of the accused no.10­Paulson Palitara on 02/09/2011 that the accused no.10­Paulson Palitara was arrested and she called him to her house. He has stated that he then went to the house of the accused no.10­Paulson Palitara and from there both of them went to the Property Cell of the Crime Branch along with PW.82­Amir Khan but they were not permitted to meet the accused no.10­Paulson Palitara. He has then stated that on the next day also neither he nor his sister met the accused no.10­Paulson Palitara in the jail. He has then stated that he was never permitted to meet the accused no.10­Paulson Palitara in the Property Cell and the accused no.10­Paulson Palitara was produced before the Court on 06/09/2011 for the first time. It is interesting to note that though PW.96­Prasad Shah has stated that on 02/09/2011, PW.82­Amir Khan accompanied him to the Office of Property Cell, Crime Branch PW.82­Amir Khan has not made any such statement. This shows the falsity of the claim made by the accused no.10­Paulson Palitara. Also, no suggestion was given to panch PW.18­ Mohd. Abbas Jilani that the accused no.10­Paulson Palitara was already arrested on 02/09/2011. Even PW.143­ACP Duraphe has denied that the accused no.10­Paulson Palitara was brought to his Office on 02/09/2011 in the mid­night. There is no reason to disbelieve his statement.

196. The learned Advocate for the accused no.10 argued that the statement made by PW.143­ACP Duraphe in paragraph no.109 of his evidence that “I was not aware that he (Paulson Palitara) was brought to the Office of the Property Cell on 02.09.2011 in the mid­night. My assisting Officer did not inform me that accused no.10­Paulson Palitara 141 was brought to the Property Cell on 02.09.2011 in the mid­night” would suggest that the accused no.10­Paulson Palitara was already in the custody on 02/09/2011. The said submission has no basis. Upon reading of the whole of the evidence of PW.143­ACP Duraphe it is quite clear that he has clearly stated that accused no.10­Paulson Palitara was arrested on 05/09/2011 and not on 02/09/2011. It may also be noted that if the accused no.10­Paulson Palitara was really illegal detained by the Officers of the Property Cell, Crime Branch then nothing prevented the accused no.10­Paulson Palitara or his wife from making grievance to the higher officials of the Police or to the Court as nothing prevented them from doing so. But that was never done. This shows that the claim of the accused no.10­Paulson Palitara that he was illegally detained since 02/09/2011 is false.

197. At this stage, it may be noted that during cross­examination of PW.133­API Gopale, when he was asked whether he had issued any summon to the accused no.10­Paulson Palitara for attending his Office, he replied in the negative. There was no question of issuing any summon to accused no.10­Paulson Palitara as he was a suspect in this case. Admittedly, he has a criminal background. Had any summon been issued to him there was every chance that he would have absconded. Therefore, PW.133­API Gopale did the right thing by directly taking the custody of the accused no.10­Paulson Palitara and bringing him to the Office of the Property Cell, Crime Branch for interrogation.

OBJECTIONS REGARDING THE ARREST OF THE ACCUSED NO.11­MS. JIGNA VORA AND THE ACCUSED NO.12­CHHOTA RAJAN. 198. There is no dispute regarding the date and place of arrest of the accused no.11­Ms.Jigna Vora and the accused no.12­Chhota Rajan. 142

CONSIDERATION AND ANALYSIS OF THE EVIDENCE. 199. In order to bring home the guilt of the accused persons, the prosecution has relied upon the following evidence:

(A) Confession made by the accused no.5­Arun Dake, the accused no.9­Deepak Sisodiya and the accused no.10­Paulson Palitara and recorded u/s.18 of the MCOC Act,1999;

(B) Extra­judicial confessions made by the accused no.12­Chhota Rajan;

(C) Recovery of various mobile phones and SIM cards used by the accused persons to remain in contact with each other for the purposes of the present crime;

(D) Recovery of the revolver, bullets, motorcycles and the Qualis vehicle used in the present crime in view of the disclosure statements made by some of the accused persons;

(E) CA/Ballistic reports;

(F) Call Detail Records;

(G) CCTV footage;

(H) Interception of conversation between the accused no.12­ Chhota Rajan and PW.90­Manoj Shivdasani and report of voice analysis of the accused no.12­Chhota Rajan;

(I) Oral evidence of the connected witnesses.

200. Since it is the case of the prosecution that the murder of J.Dey was committed in pursuance of a criminal conspiracy, in order to appreciate the evidence on the record from that angle, it will be proper to have a look at the law relating to conspiracy at this stage itself. It may be noted that though the learned SPP has relied upon various judgments on this point, it will be appropriate to refer to the judgment in the case of Yakub Abdul 143

Razak Memon & ors. V. State of Maharashtra reported in (2013) 13 SCC 1, where the Hon'ble Supreme Court of India has exhaustively dealt with the law relating to conspiracy. The relevant paragraphs of the said judgment are reproduced below for ready reference:

"60. Chapter V­A of IPC speaks about Criminal Conspiracy. Section 120­A defines criminal conspiracy which is as under:

"120­A. Definition of criminal conspiracy.­When two or more persons agree to do, or cause to be done,­

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.­It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."

Section 120­B speaks about punishment of criminal conspiracy which is as under:

"120­B. Punishment of criminal conspiracy.­(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both." 144

Theory of Agency and Conspiracy

62. An important facet of the Law of Conspiracy is that apart from it being a distinct offence, all conspirators are liable for the acts of each other of the crime or crimes which have been committed as a result of the conspiracy. This principle has been recognized right from the early judgment in Regina v. Murphy (1873) 173 ER 502. In the said judgment Coleridge J. while summing up for the Jury stated as follows:

"...I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by comroeff means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, Had they this common design, and did they pursue it by these common means ­ the design being unlawful? it is not necessary that it should be proved that these defendants met to concoct this scheme, nor is it necessary that they should have originated it. If a conspiracy be already formed, and a person joins it afterwards, he is equally guilty. You are to say whether, from the acts that have been proved, you are satisfied that these defendants were acting in concert in this matter. If you are satisfied that there was concert between them, I am bound to say that being convinced of the conspiracy, it is not necessary that you should find both Mr. Murphy and Mr. Douglas doing each particular act, as after the fact of conspiracy is already established in your minds, whatever is either said or done by either of the defendants in pursuance of the common design, is, both in law and in common sense, to be considered as the acts of both."

63. Each conspirator can be attributed each others actions in a conspiracy. Theory of agency applies and this rule existed even 145 prior to the amendment of the Penal Code in India. This is reflected in the rule of evidence u/s.10 of the Evidence Act. Conspiracy is punishable independent of its fruition. The principle of agency as a rule of liability and not merely a rule of evidence has been accepted both by the Privy Council as well as by this Court. The following judgments are relevant for this proposition:

(a) Babulal v. Emperor, AIR 1938 PC 130, where the Privy Council held that:

"if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it..."

(b) State of A.P. v. Kandimalla Subbaiah (1962) 1 SCR 194, where this Court opined that where a number of offences are committed by several persons in pursuance of a conspiracy it is usual to charge them with those offences as well as with the offence of conspiracy to commit those offences, if the alleged offences flow out of the conspiracy, the appropriate form of charge would be a specific charge in respect of each of those offences along with the charge of conspiracy.

(c) State of H.P. v. Krishan Lal Pardhan, (1987) 2 SCC 17 where it was held that the offence of criminal conspiracy consists of meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences.

(d) In Nalini (supra), this Court explained that conspiracy results in a joint responsibility and everything said written or done in furtherance of the common purpose is deemed to have been done by each of them. The Court held:

"583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a 146 summary cannot be exhaustive of the principles.

1. Under Section 120­A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.

2. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.

3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.

4. Conspirators may for example, be enrolled in a chain­ A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella­spoke enrollment, where a single person at the center does the enrolling and all the other members are unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is not a part of the crime of 147 conspiracy that all the conspirators need to agree to play the same or an active role.

5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.

6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.

7. A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".

8. As stated above, it is the unlawful agreement and not its 148 accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.

9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefore. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co­conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.

10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime." (emphasis supplied)

64. The offence under Section 120­B is a crime between the 149 parties to do a particular act. Association or relation to lead conspiracy is not enough to establish the intention to kill the deceased. To make it clear, to bring home the charge of conspiracy within the ambit of Section 120­B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is difficult to establish conspiracy by direct evidence.

65. Since conspiracy is hatched in secrecy, to bring home the charge of conspiracy, it is relevant to decide conclusively the object behind it from the charges leveled against the accused and the facts of the case. The object behind it is the ultimate aim of the conspiracy. Further, many means might have been adopted to achieve this ultimate object. The means may even constitute different offences by themselves, but as long as they are adopted to achieve the ultimate object of the conspiracy, they are also acts of conspiracy.

66. In Ajay Aggarwal v. Union of India, AIR 1993 SC 1637, this Court rejected the submission of the accused that as he was staying in Dubai and the conspiracy was initially hatched in Chandigarh and he did not play an active part in the commission of the acts which ultimately lead to the incident, thus, could not be liable for any offence, observing:

"8 ..Section 120­A of the IPC defines conspiracy to mean that when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated as "criminal conspiracy". No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof. Section 120­B of the IPC prescribes punishment for criminal conspiracy. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements:(1) agreement; (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of criminal 150 conspiracy was stated first by Lord Denman in Jones case (1832) that an indictment for conspiracy must "charge a conspiracy to do an unlawful act by unlawful means .."

The Court, thus, held that an agreement between two or more persons to do an illegal act or legal act by illegal means is criminal conspiracy. Conspiracy itself is a substantive offence and is distinct from the offence to be committed, for which the conspiracy was entered into. A conspiracy is a continuing offence and continues to subsist and is committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. (Vide: Sudhir Shantilal Mehta v. Central Bureau of Investigation, (2009) 8 SCC 1)

68. For an offence under Section 120­B IPC, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. It is not necessary that each member of the conspiracy must know all the details of the conspiracy. The offence can be proved largely from the inferences drawn from the acts or illegal omission committed by the conspirators in pursuance of a common design. Being a continuing offence, if any acts or omissions which constitute an offence are done in India or outside its territory, the conspirators continuing to be the parties to the conspiracy and since part of the acts were done in India, they would obviate the need to obtain the sanction of the Central Government. All of them need not be present in India nor continue to remain in India. The entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve. (Vide: R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821; Lennart Schussler & Anr. v. Director of Enforcement & Anr., (1970) 1 SCC 152; Shivanarayan Laxminarayan Joshi v. State of Maharashtra, (1980) 2 SCC 465 and Mohammad Usman Mohammad Hussain Maniyar and Another v. State of Maharashtra, AIR 1981 SC 151

1062)

72. In State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744, this Court held:

"to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended. The ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."

73. In State through Superintendent of Police, CBI/SIT v. Nalini & Ors., (1999) 5 SCC 253, this Court held:

"Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed. ...It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. There has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to 152 the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.

The agreement, sine qua non of conspiracy, may be proved either by direct evidence which is rarely available in such cases or it may be inferred from utterances, writings, acts, omissions and conduct of the parties to the conspiracy which is usually done. In view of Section 10 of the Evidence Act anything said, done or written by those who enlist their support to the object of conspiracy and those who join later or make their exit before completion of the object in furtherance of their common intention will be relevant facts to prove that each one of them can justifiably be treated as a conspirator." (See Also: Kehar Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883)

76. In Mohd. Khalid v. State of West Bengal, (2002) 7 SCC 334, this Court held:

"Where trustworthy evidence establishing all links of circumstantial evidence is available the confession of a co­ accused as to conspiracy even without corroborative evidence can be taken into consideration."

81. The law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. In order to achieve the ultimate object, parties may adopt many means. Such means may constitute different offences by themselves, but so long as they are adopted to achieve the ultimate object of the conspiracy, they are also acts of conspiracy. For an offence of conspiracy, it is not necessary for the prosecution to prove that conspirators expressly agreed to do an illegal act, the agreement may be proved by necessary implication. It is also not necessary that each member of the conspiracy should know all the details of the conspiracy. 153

Conspiracy is a continuing offence. Thus, if any act or omission which constitutes an offence is done in India or outside its territory, the conspirators continue to be the parties to the conspiracy. The conspiracy may be a general one and a smaller one which may develop in successive stages. It is an unlawful agreement and not its accomplishment, which is the gist/essence of the crime of conspiracy. In order to determine whether the conspiracy was hatched, the court is required to view the entire agreement and to find out as in fact what the conspirators intended to do."

201. The above position of law regarding criminal conspiracy has been reiterated by the Hon'ble Supreme Court of India in the recent case of Mukesh and anr. V. State of NCT of Delhi and ors. reported in (2017) 6 SCC 1 (Nirbhayas case).

202. Considering the nature of arguments which were advanced, it will also be proper to make a note regarding the concept of “reasonable doubt” and “benefit of doubt”.

203. In the case of State of Punjab V. Jagir Singh Baljit Singh reported in (1974) 3 SCC 277, the Hon'ble Supreme Court of India held as under:

“23. A criminal trial is not like a fairy tale wherein one is free to give flight to ones imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.” 154

204. In the case of Vijayee Singh V. State of Uttar Pradesh reported in AIR 1990 SC 1459, the Hon'ble Supreme Court of India has observed as under:

“28...... The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or non­existence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its non­existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by a prudent man.

29. There is a difference between a flimsy or fantastic plea which is to be rejected altogether. But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds. The doubt which the law contemplates is certainly not that of weak or unduly vacillating, capricious, indolent, drowsy or confused mind. It must be the doubt of the prudent man who is assumed to possess the capacity of "separate the chaff from the grain". It is the doubt of a reasonable, astute and alert mind arrived at after 155

due application of mind to every relevant circumstance of the case appearing from the evidence. It is not a doubt which occurs to a wavering mind.

30. Lord Denning, J. in Miller v. Minister of Pensions while examining the degree of proof required in criminal cases stated:

"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course, it is possible but not in the least probable," the case is proved beyond reasonable doubt...."

Regarding the concept of benefit of reasonable doubt Lord Du Paraq, J. in another context observed thus:

"All that the principle enjoins is a reasonable scepticism, not an obdurate persistence in disbelief. It does not demand from the judge a resolute and impenetrable incredulity. He is never required to close his mind to the truth."

205. In the case of State of Haryana V. Bhagirath reported in AIR 1999 SC 2005, the Hon'ble Supreme Court of India has observed as under:

“10. It is nearly impossible in any criminal trial to prove all elements with scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the judge.

11. Francis Wharton, a celebrated writer on Criminal Law in United States has quoted from judicial pronouncements in his book on "Whartons Criminal Evidence" as follows (at page 31, 156 volume 1 of the 12th Edition): "It is difficult to define the phrase "reasonable doubt." However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."

12. In the treatise on "The Law of Criminal Evidence" authored by HC Underhill it is stated (at page 34, Volume 1 of the Fifth Edition) thus:

"The doubt to be reasonable must be such a one as an honest, sensible and fair­minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."

13. In Shivaji Saheb Rao Bobade vs. State of Maharashtra (1974) 1 SCR 489 this court adopted the same approach to the principle of benefit of doubt and struck a note of caution that the dangers of exaggerated devotion to rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. This court further said:

"The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt." 157

14. These are reiterated by this court in Municipal Corporation of Delhi vs Ram Kishan Rohatgi, AIR 1983 SC 67.”

206. In the case of Krishnan V. State reported in AIR 2003 SC 2978, the Hon'ble Supreme Court of India has observed as under:

“24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.

25. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degree of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachalia.J (as His Lordship then was) in State of U.P. Krishna Gopal and Anr. (AIR 1988 SC 2154) .”

207. In the case of State of Punjab V. Karnail Singh reported in (2003) 11 SCC 271, the Hon'ble Supreme Court of India has observed as under:

“12. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an 158

innocent. Letting guilty escape is not doing justice according to law. (See: Gurbachan Singh vs. Satpal Singh and others (AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. vs. Ashok Kumar Srivastava (AIR 1992 SC 840). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and Anr. vs. State (Delhi Admn.) AIR 1978 SC 1091). Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland vs. Director of Public Prosecution (1944 Ac (PC) 315) quoted in State of U.P. vs. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. (See: Shivaji Sahebrao Bobade and Anr. vs. State of Maharashtra (1974 (1) SCR 489) , State of U.P. vs. Krishna Gopal and Anr. (AIR 1988 SC 2154), and Gangadhar Behera and others vs. State of Orissa (2002 (7) Supreme 276).”

208. Before going further, it is necessary to have a look at the roles attributed to each of the accused in this case. They are briefly stated below:

SR.NO. NAME OF THE ACCUSED ROLE 1 Rohee Tangappan Joseph ­He collected the firearms from the @ Satish Kalya accused no.9 and the wanted accused no.1 from Nainital.

­He actually fired five shots from his revolver on J.Dey and killed him. 159

SR.NO. NAME OF THE ACCUSED ROLE 2 Anil Bhanudas Waghmode ­He had gone in the Qualis vehicle belonging to him along with accused no.1 and others to Nainital for bringing the firearms from accused no.9.

­He along with the accused no.5 kept a watch on J.Dey near the Uma Palace Bar & Restaurant.

­He arranged for a motorcycle through accused no.6.

­He was actually present at the time of the incident along with the accused nos.1, 3, 4, 5, 6, 7.

­He was the pillion rider on the motorcycle driven by the accused no.6.

­ The accused no.7 has used his Qualis vehicle in the crime. 3 Abhijit Kashinath Shinde ­He was actually present at the time of the incident along with the accused nos.1, 2, 4, 5, 6, 7.

­He was driving the motorcycle on which the accused no.4 was the pillion rider.

4 Nilesh Narayan Shedge ­He was actually present at the time of the incident along with the accused nos.1, 2, 3, 5, 6, 7.

­He was the pillion rider on the motorcycle driven by the accused no.3.

5 Arun Janardan Dake ­He was actually present at the time 160

SR.NO. NAME OF THE ACCUSED ROLE of the incident and he was driving the motorcycle and accused no.1 was the pillion rider.

­He along with the accused no.2 kept a watch on J.Dey near the Uma Palace Bar & Restaurant.

6 Mangesh Damodar ­ He was actually present at the time Aagvane of the incident.

­He was driving a motorcycle with the accused no.2 as the pillion rider.

7 Sachin Suresh Gaikwad ­He went along with accused no.1 and some of the other accused to Nainital in the Qualis vehicle of the accused no.2 for bringing firearms.

­He was actually present at the time of the incident along with the accused nos.1, 2, 3, 4, 5 and 6.

­He was driving the Qualis vehicle while following J.Dey.

­He provided motorcycle to accused nos.1 and 5 at the time of the incident.

8 Vinod Gowardhandas ­He called J.Dey at the instance of Asrani @ Vinod Sindhi @ accused no.12 to Uma Palace Bar Vinod Chembur ­Abated and Restaurant so as to enable accused nos.2 and 5 to identify J.Dey.

9 Deepak Dalvirsingh ­He gave 25 bullets to the wanted Sisodiya accused no.1 at the instance of the accused no.12. 161

SR.NO. NAME OF THE ACCUSED ROLE ­The wanted accused no.1 handed over the revolver and the cartridges used in the crime to the accused no.1 in his presence.

10 Paulson Joseph Palitara ­He arranged for global SIM cards from Dubai at the instance of accused no.12 and gave it to accused no.1 and others.

­He gave Rs.2 lacs to accused no.1 after the incident.

­He introduced the accused no.11 to the accused no.12.

11 Ms.Jigna Jitendra Vora ­She was jealous of J.Dey as he was getting more news about crime world from one Farid Tanasha who was very closely associated with the accused no.12.

­She used to publish news contrary to the news published by J.Dey.

­She used to contact accused no.12 and instigate him to commit the murder of J.Dey.

­She gave the necessary information such as photos, address and details of movements of J.Dey to accused no.12 for his identification.

12 Rajendra Sadashiv Nikalje ­He was unhappy with J.Dey as he @ Chhota Rajan @ Nana was writing and publishing articles @ Seth @ Sir against him. The articles showed him in bad light and glorified his arch rival Dawood Ibrahim. 162

SR.NO. NAME OF THE ACCUSED ROLE ­J.Dey was murdered at his instance.

13 Wanted accused no.1­ ­He and accused no.9 gave the Nayansigh Pratapsingh firearms to accused no.1 at the Bista instance of the accused no.12.

14 Wanted accused no.2­Ravi ­He gave global roaming SIM cards Ram Rattesar to the accused no.10 who in turn sold them to the accused no.12.

209. This is also the proper stage to cursorily have a look at the antecedents of the accused persons before the Court. The perusal of the remand application no.79/2011 dated 11/07/2011 shows that prior to this case, the following offences were registered against some of the accused persons:

Accused no.1­Rohee Tangappan Joseph @ Satish Kalya

SR. POLICE CRIME NO. SECTIONS NO. STATION 1 Samata Nagar 502/96 379, 34 IPC 2 Khar 4/98 307, 34 IPC & 3,25 of Indian Arms Act. 3 Khar 79/98 302, 34 IPC & 3,25 of Indian Arms Act. 4 DCB, Unit no.9 16/04 384, 387, 397, 506(2), 511, 34 IPC & 3,25 of Indian Arms Act 5 DCB, Unit no.9 17/04 384, 387, 506(2), 34 IPC 6 DCB, Unit no.9 58/05 384, 387, 397, 342, 34 IPC, 3,25 of Indian Arms Act & MCOCA Act. 7 DCB, Crime LAC 3,25 of Indian Arms Act Unit (Secret no.41/05 Information) (Operations) 163

Accused no.2­Anil Bhanudas Waghmode @ Lambu

SR. POLICE CRIME NO. SECTIONS NO. STATION 1 Oshiwara 482/95 324, 323, 384, 506, 114 IPC 2 Oshiwara 558/03 393, 394 IPC 3 Oshiwara LAC 71/04 3,25 of Indian Arms Act 4 Khar 4/98 307, 34 IPC r/w. 3,25 of Indian Arms Act. 5 Khar 78/98 302, 34 IPC r/w. 3,25 of Indian Arms Act.

Accused no.3­Abhijeet Kashinath Shinde

No previous offence was registered.

Accused no.4­Nilesh Narayan Shedge @ Bablu

SR. POLICE CRIME NO. SECTIONS NO. STATION 1 Nagpada 179/09 379 IPC 2 Dharavi 264/02 323, 34 IPC 3 Nagpada 265/10 323, 34 IPC

Accused no.5­Arun Janardan Dake

SR. POLICE CRIME NO. SECTIONS NO. STATION 1 Chembur 340/07 323, 324, 34 IPC 2 Chembur 567/07 323, 324, 504, 506, 452, 34 IPC 3 Chembur LAC 73/08 37(A), 22, 51 Bombay Police Act 4 Chembur 280/10 385, 387, 504, 34 IPC 5 Chembur LAC 944/10 3,25 Indian Arms Act & 37(1),(A), 135 Bombay Police Act 164

6 Chembur 135/10 326, 34 IPC

Accused no.6­Mangesh Damodar Aagvane @ Mangya

No previous offence was registered.

Accused no.7­Sachin Suresh Gaikwad

SR. POLICE CRIME NO. SECTIONS NO. STATION 1 Chembur 149/10 323,324,504, 506(2), 34 IPC

Deceased accused no.8­Vinod Gowardhandas Asrani

SR. POLICE CRIME NO. SECTIONS NO. STATION 1 Chembur 487/90 332, 341, 427, 143 to 149 IPC 2 Chembur 256/03 323, 504, 506, 34 IPC r/w. 3,25 of Indian Arms Act 3 DCB, Unit 150/05 120­B, 115, 302, 419 IPC r/w. 3, 25, no.6 (Tilak (258/05) 30, 35, 36 of Indian Arms Act r/w. Nagar) MCOCA.

Accused no.9­Deepak Sisodiya (Details as mentioned in reply (Exh.9­A) to the bail application)

SR. POLICE CRIME NO. SECTIONS NO. STATION 1 Haldvani 845/94 365, 386, 387, 511, 346 IPC 2 Haldvani 816/98 307 IPC 3 Haldvani 465/01 60 Excise Act 4 Haldvani 3050/02 60 Excise Act 5 Bheemtal 1180/99 307 IPC 6 Bheemtal 1181/99 25 of Indian Arms Act. 165

Accused no.10­Paulson Joseph Palitara Crime no.56/2011 u/s.302, 201, 120­B, 34 of the IPC r/w. sections 3(1)(ii), 3(2), 3(4) of MCOC Act,1999.

Accused no.11­Ms.Jigna Vora

No previous offence was registered.

Accused no.12­Chhota Rajan The perusal of the remand application shows that about 64 cases relating to murder, attempt to murder, extortion etc. were registered against the accused no.12­Chhota Rajan during the period 1978 to 2011. These cases were registered under the IPC and the MCOC Act,1999. There are more than 40 cases before this Court in which he is shown as the accused. These cases relate to murder, attempt to commit murder, extortion etc.

210. At the outset, in so far as the accused no.11­Ms.Jigna Vora is concerned, though the role attributed to her is that she instigated the accused no.12­Chhota Rajan to commit the murder of J.Dey and that it was she was the one who gave the details such as photograph of J.Dey and the registration number of his motorcycle to the accused no.12­Chhota Rajan for the purposes of his identification by the other accused persons, there is no trustworthy evidence against her. In fact, the learned SPP did not address arguments against the accused no.11­Ms.Jigna Vora with much force. Perhaps he was also aware about the quality of the evidence against the accused no.11­Ms.Jigna Vora. This Court has also independently analyzed the evidence of PW.74­API Pramod Sawant, PW.87­Nikhil Dixit, PW.100­Aariz Chandra and PW.116­Rajesh Kadam 166 who are the relevant witnesses with respect to charges against the accused no.11­Ms.Jigna Vora. However, there is nothing in their evidence to suggest that the accused no.11­Ms.Jigna Vora had instigated the accused no.12­Chhota Rajan to commit the murder of J.Dey or that she had any other role in this offence. In fact, even in the various extra­judicial confessions made by the accused no.12­Chhota Rajan which are discussed in the later part of this judgment, he has nowhere stated that he got J.Dey murdered because of the instigation by the accused no.11­Ms.Jigna Vora or anybody else. Even the recovery of various mobile phones and the SIM cards of the accused no.11­Ms.Jigna Vora and the relevant CDRs fail to connect the accused no.11­Ms.Jigna Vora with the offence in question. Hence, the accused no.11­Ms.Jigna Vora has to be acquitted of all the charges against her.

211. Now let's consider and analyze the evidence on the record with reference to the other accused persons before this Court.

212. It may be stated that the case of the prosecution is that for the purposes of obtaining the firearms and ammunitions, the accused nos.1 to 4 had gone to Haldvani, Nainital in May 2011 i.e. a month prior to the incident. In this regard, the prosecution has relied upon the evidence of PW.125­Ganesh Kharat and PW.112­Amit Chauhan. PW.125­Ganesh Kharat was the driver of the Qualis vehicle bearing registration no.MH­12­ CD­7701 in which the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, the accused no.2­Anil Waghmode, the accused no.3­Abhijit Shinde and the accused no.4­Nilesh Shedge had gone to Haldvani, Nainital on 12/05/2011 and stayed there for three days. But he did not fully support the case of the prosecution. His evidence shows that though he has admitted to have gone to Nainital along with the accused no.3­Abhijit 167

Shinde and the accused no.4­Nilesh Shedge, he denied that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.2­Anil Waghmode had accompanied them to Haldvani, Nainital or that they had gone there by road. But during cross­examination by the learned SPP he admitted that he had stayed in “Hotel SV” from 12/05/2011 to 15/05/2011 along with five other persons.

213. PW.112­Amit Chauhan was working as a Manager in the “Hotel S.V.”, Nainital road, Dhotia Padav, Haldvani, District Nainital at the relevant time. He was examined by the prosecution to show that the accused nos.1 to 4 had gone to Haldvani. From his evidence, it is further clear that PW.125­Ganesh Kharat along with five others had stayed in the room no.101 of “Hotel S.V.”, Haldvani from 12/05/2011 to 15/05/2011. But it is not clear whether the five persons who were with him at that time included the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and accused no.2­Anil Waghmode also. However, as it will be seen in the later part of this judgment, through the confession made by the accused no.9­ Deepak Sisodiya, the prosecution has proved that on 14/05/2011 the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was present in Haldvani and he procured two revolvers and 25 live cartridges from the accused no.9­Deepak Sisodiya and the wanted accused no.1­Nayansingh Bista.

(A) CONFESSION MADE BY THE ACCUSED NO.5­ARUN DAKE, THE ACCUSED NO.9­DEEPAK SISODIYA AND THE ACCUSED NO.10­ PAULSON PALITARA AND RECORDED U/S.18 OF THE MCOC ACT,1999. 214. Before going further, it may be noted that a confession recorded u/s.18 of the MCOC Act,1999 is substantive evidence not only against the maker of the same but also against the other accused persons who are 168 tried along with the maker of the confession. Also, if there is a trial of any offence under MCOC Act,1999 together with any other offence under any other law, the admissibility of the confession recorded u/s.18 of the MCOC Act,1999 would continue to hold good even if the accused is acquitted of the offences under the MCOC Act,1999.

CONFESSION MADE BY THE ACCUSED NO.5­ARUN DAKE 215. As per the prosecution, the accused no.5­Arun Dake was arrested on 26/06/2011. On 15/07/2011 and 17/07/2011, he voluntarily made the confession before PW.122­DCP Dr. Mahesh Patil. The gist of the confession made by the accused no.5­Arun Dake is as follows:

He was residing at Subash chandra Bose Nagar Slum, near Saibaba Mandir, Lal Dongar, Chembur, Mumbai­71 since his birth. He was using the mobile nos.8652449019 and 8652490277. Another mobile no.9833042637 was in his house. The accused no.7­Sachin Gaikwad was living near his house. The accused no.7­Sachin Gaikawad was working as a watchman at a construction site. He also worked as a watchman at various construction sites. While working as a watchman he came in contact with one Pramod Thorat @ Pamya. In the year 2009, he had gone to Pune for campaigning for an election alongwith Pramod Thorat @ Pamya, the accused no.2­Anil Waghmode, accused no.4­Nilesh Shedge. They were there together for 13 days. He got acquainted with the accused no.2­Anil Waghmode and accused no.4­Nilesh Shedge @ Bablu at that place. At that time, he came to know that Pramod Thorat was a friend of D.K.Rao and that D.K.Rao was in Jail.

In the year 2010, his friend Muttu Potraj was doing business of liquor at Chembur. The Excise department raided his shop. Muttu Potraj assaulted him as he thought that the raid was conducted because of the tip given by him. An offence u/s.326 IPC was registered against him and he was externed by the Chembur Police. During the period of externment he was living with his sister in a building which was in front of Mukta College, Adharwadi, Kalyan. During that period he was in contact with the accused no.4­Nilesh Shedge on phone. 169

On 07/06/2011, at about 05:00 pm, when he alongwith the accused no.4­Nilesh Shedge and the accused no.2­Anil Waghmode was at a construction site at Bhandup, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya who was the friend of the accused no.2­Anil Waghmode phoned and told the accused no.2­Anil Waghmode to go to Uma Palace Bar situated at LBS Road, Mulund at 08:30 pm and to keep a watch on a tall man (J.Dey) who would be called by their man (deceased accused no.8­Vinod Asrani) who would come in a white coloured BMW car and who would be surrounded by 4 Sikh bodyguards (Sardars). Then he alongwith the accused no.2­Anil Waghmode went to Uma Palace Bar on the Pulsar motorcycle of the accused no.7­Sachin Gaikwad and stood on the footpath in front of Uma Palace Bar. At about 09:30 pm, a tall person wearing spectacles (J.Dey) and matching the description given by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya came there alongwith one person who was a little less in height and who was of dark complexion and both of them stood at the corner of the road near the Uma Palace Bar. After 15 minutes, one white BMW car came there and two persons (One of them was the deceased accused no.8­Vinod Asrani) got down from that car. There were four bodyguards (sardars) with them. One person (deceased accused no.8­Vinod Asrani) out of the two called J.Dey by his name and by waving his right hand. J.Dey responded by raising his hand. Then J.Dey and the person alongwith him went to meet the person (deceased accused no.8­ Vinod Asrani) who called them. At that time, the identity of J.Dey was confirmed. At 11:45 pm, J.Dey and the person alongwith him came out of the Bar, crossed the road and went away. Thereafter, he and the accused no.2­Anil Waghmode also left that place.

On 09/06/2011, the accused no.4­Nilesh Shedge told him to come to Sion early on the next day in the morning.

On 10/06/2011, at 06:00 am, he went by local train from Kalyan to Sion. The accused no.4­Nilesh Shedge and his friend i.e. the accused no.3­Abhijit Shinde met him there. At that time, the accused no.4­Nilesh Shedge told him that he had some work at Andheri & that he wanted a motorcycle. Therefore, he phoned 170 his friend i.e. the accused no.7­Sachin Gaikwad and told him to bring his motorcycle. Accordingly, the accused no.7­Sachin Gaikwad came there on a motorcycle. Thereafter, the accused no.4­Nilesh Shedge phoned the accused no.2­Anil Waghmode. Then he (the accused no.5­Arun Dake) sat on the motorcycle of the accused no.7­Sachin Gaikwad. The accused no.4­Nilesh Shedge sat on the motorcycle of the accused no.3­Abhijit Shinde. Thereafter, at 07:30 am, they all went near Andheri railway crossing where the accused no.2­Anil Waghmode met them. The accused no.2­Anil Waghmode had come there in a Qualis vehicle alongwith the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.6­Mangesh Aagvane had come there on a motorcycle. Thereafter, at 08:30 am, all of them went to the Bus depot at Amrut Nagar, Ghatkopar(West).

At that time, the accused no.4­Nilesh Shedge told him (the accused no.5­Arun Dake) to phone him as soon as he sees J.Dey who would be wearing a white coloured helmet and driving motorcycle bearing registration no.6981. Accordingly, he waited there for J.Dey till 12:30 in the afternoon but J.Dey did not come. Therefore, all of them left that place and went to Lower Parel, Peninsula Chamber. He sat in the Qualis vehicle alongwith the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, the accused no.2­Anil Waghmode and the accused no.4­ Nilesh Shedge. The accused no.3­Abhijit Shinde, the accused no.6­Mangesh Aagvane and the accused no.7­Sachin Gaikwad went there on motorcycles. But as J.Dey was not there they returned. The accused no.4­Nilesh Shedge told him to come to Sion on the next day at 05:00 am. Accordingly, he told the accused no.7­Sachin Gaikwad to come on the next day and then he went to the house of his sister at Kalyan. At that place, he had a quarrel with his sister. Therefore, he left her house and went to Kurla by local train. He slept on the platform there. When he woke up in the morning he found that his mobile phone having mobile nos.8652449019 & 8652490277 was stolen. Therefore, he went to the house of his cousin brother (PW.107­Roshan Baikar) and took his mobile phone having mobile no. 9987017977 of Airtel company for use.

On 11/06/2011, at 05:30 am, he went near the house of the accused no.4­Nilesh Shedge. From that place, he made a phone 171 call to the accused no.7­Sachin Gaikwad and told him to come with a motorcycle. After that, he went along with the accused no.4­Nilesh Shedge to the Andheri Railway crossing in a rickshaw. The accused no.3­Abhijit Shinde also came there on a motorcycle. The accused no.2­Anil Waghmode, the accused no.6­Mangesh Aagvane and the accused no.1­Rohee Tangappan Joseph @ Satish Kalya also met them there. From there, all of them went to the R­City Mall at Amrut Nagar. Himself, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.4­Nilesh Shedge went there in a Qualis vehicle. The accused no.6­Mangesh Aagvane and the accused no.3­Abhijit Shinde went there on their respective motorcycles. The accused no.7­Sachin Gaikwad directly came there on his motorcycle. The accused no.2­Anil Waghmode was telling something to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya by telephoning him intermittently. At 01:30 pm, he saw J.Dey going somewhere on his motorcycle. He followed J.Dey on motorcycle. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya was his pillion rider. The accused no.3­Abhijit Shinde was driving another motorcycle and the accused no.4­ Nilesh Shedge was his pillion rider. The accused no.6­Mangesh Aagvane was driving the third motorcycle and the accused no.2­ Anil Waghmode was his pillion rider. All of them followed J.Dey by keeping some distance. The accused no.7­Sachin Gaikwad was driving the Qualis vehicle and was following all of them. J.Dey stopped his motorcycle in front of Hiranandani Hospital and went ahead walking. After sometime, J.Dey again started driving his motorcycle. All of them again started following J.Dey by keeping some distance. In between, they lost sight of J.Dey. After going ahead, he (the accused no.5­Arun Dake) saw that the motorcycle of J.Dey was parked. He saw that J.Dey then immediately started leaving that place on his motorcycle. All of them again started following J.Dey by keeping some distance. When J.Dey reached near D' Mart, Hiranandani, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya took out his revolver and fired one bullet on the back of J.Dey. J.Dey immediately stopped his motorcycle. At that time, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya fired four more bullets continuously at J.Dey because of which J.Dey fell down alongwith his motorcycle. Thereafter, all of them fled that spot.

After going some distance, the accused no.1­Rohee Tangappan 172

Joseph @ Satish Kalya got down from the motorcycle of the accused no.5­Arun Dake and told him to come near the Goregaon Bus Depot. Accordingly, he went there but the accused no.1­Rohee Tangappan Joseph @ Satish Kalya did not come there. Therefore, he made a phone call to the accused no.4­Nilesh Shedge who told him to come to Sion. He then went to Sion near the house of the accused no.4­Nilesh Shedge. After some time, the accused no.4­Nilesh Shedge, the accused no.7­ Sachin Gaikwad and the accused no.3­Abhijit Shinde also came there. He then gave the keys of the motorcycle of the accused no.7­Sachin Gaikwad to him and told him to go to his house. As the accused no.3­Abhijit Shinde was living nearby, the accused no.4­Nilesh Shedge told him to go to his house and watch TV. Accordingly, the accused no.3­Abhijit Shinde went to his house. He returned after sometime and informed them that the news about the murder of J.Dey was being shown of the TV. Thereafter, the accused no.4­Nilesh Shedge told him to go to his house and to come to Sion on the next day in the morning. Accordingly, he went to Kalyan.

On 12/06/2011, at 06:00 am, he went to the house of the accused no.4­Nilesh Shedge at Sion. From there, he went to Andheri alongwith the accused no.4­Nilesh Shedge and the accused no.3­Abhijit Shinde. The accused no.2­Anil Waghmode met them there. At 11:00 am, all of them went to Dahisar in a tempo. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya had already come there in a Qualis vehicle. From there, all the five of them went in the Qualis vehicle to Pavagarh, Gujarat. They reached there in the night. At that place, the accused no.2­ Anil Waghmode booked a room in a hotel “Champaner”. They stayed in that hotel overnight. On the next day, they checked out of the hotel and went to a temple at Pavagarh. In the afternoon, they left for Shirdi and reached Shirdi in the night where the accused no.2­Anil Waghmode booked a room in hotel 'Sai Palace'.

On 14/06/2011, after visiting the Sai Mandir, they went to Shani Shingnapur. From there they went to Solapur. The accused no.4­Nilesh Shedge went to the house of his friend at Solapur. 173

On 15/06/2011, he alongwith the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, the accused no.2­Anil Waghmode and the accused no.3­Abhijit Shinde went to the Math of Swami at Akkalkot where the accused no.2­Anil Waghmode booked a room. They stayed there overnight.

On 16/06/2011, after leaving the room they went to Yadgir, Karnataka. They reached there at about 02:30 am in the night. At that place, the accused no.2­Anil Waghmode booked a room in the hotel 'Welcome'.

On 17/06/2011 at 10:00 am they went to a temple. From there, they returned to the hotel and at 03:00 pm they went to Vijapur (Bijapur) where he was dropped near the bus Depot. From there, when he phoned the accused no.7­Sachin Gaikwad he informed him that he (accused no.7­Sachin Gaikwad) had come to Vijapur (Bijapur) alongwith his wife. On that, he told the accused no.7­Sachin Gaikwad to come to the bus depot and accordingly, he came there. Thereafter, he left for Pune by bus.

On 18/06/2011, he went to Swargate, Pune to the house of Father Pastor Brother whom he was knowing and stayed with him for two days and then he returned to Mumbai.

On 26/06/2011, when he was at Sion alongwith the accused no.6­Mangesh Aagvane and the accused no.7­Sachin Gaikwad, the Police caught them.

ASSESSMENT OF THE STATEMENT MADE BY THE ACCUSED NO.5­ ARUN DAKE. 216. The expression “confession” has not been defined in the Evidence Act, 1872 or in the MCOC Act,1999. In the case of Kanda Padayachi V. State of Tamil Nadu reported in (1971) 2 SCC 641, the Hon'ble Supreme Court of India has held as follows:

“10. The expression 'confession' has not been defined in the 174

Evidence Act. But Stephen in his Digest of the Law of Evidence defined it as an admission made at any time by a person charged with crime stating or suggesting the inference that he committed a crime. Straight J., in R. vs. Jagrup I.L.R. 7 All. 646 and Chandawarkar, J., in R. vs. Santya Bandhu 4 Bom. L.R. 633, however, did not accept such a wide definition and gave a narrower meaning to the expression 'confession' holding that only a statement which was a direct acknowledgement of guilt would amount to confession and did not include merely inculpatory admission which falls short of being admission of guilt. The question as to the meaning of 'confession' was ultimately settled in 1939 by the Privy Council in Pakala Narayana Swami vs. The King Emperor 66 I.A. 66. Lord Atkin laid down that no statement containing self exculpatory matter could amount to confession if the exculpatory statement was of some fact which if true would negative the offence alleged to be confessed. He observed:

Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man's possession. Some confusion appears to have been caused by the definition of confession in Article 22 of Stephen's Digest of the Law of Evidence which defines a confession as an admission made at any time by a person changed with crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872; and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused "suggesting the inference that be committed "the crime.”

217. As stated earlier, under MCOC Act,1999 also, the expression 175

'confession' has not been defined. Therefore, under the MCOC Act,1999 also, 'confession' would mean an express acknowledgement of guilt of the offence charged or it must admit substantially all the facts which constitute the offence. The confession (Exhs.1162, 1162­A & 1162­B) made by the accused no.5­Arun Dake will have to be considered in the light of above.

218. From the perusal of the confession made by the accused no.5­Arun Dake it is seen that he had criminal antecedents. The accused nos.1 to 7 were knowing each other very well and were in contact with each other. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya had told the accused no.2­Anil Waghmode on 07/06/2011 in the evening, to go to the Uma Palace Bar and Restaurant, LBS road, Mulund for identification of the target i.e. J.Dey. Accordingly, the accused no.2­Anil Waghmode and the accused no.5­Arun Dake went there at about 08:30 pm and identified J.Dey. After the identity of the target was fixed, on 10/06/2011, the accused nos.1 to 7 searched for J.Dey at Amrut Nagar, Ghatkopar where the parents of J.Dey used to reside. But they could not get him there. They also visited the area of Lower Parel where the Office of J.Dey was situated. But on that day, they could not find him there also. On 11/06/2011, the accused nos.1 to 7 saw J.Dey in Amrut Nagar, Ghatkopar area at about 01:30 pm. and they started following him and waited for the right moment to act. That moment came when J.Dey was near D’Mart, Hiranandani, Powai. At that time, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya who was the pillion rider on the motorcycle of the accused no.5­Arun Dake fired one bullet from his revolver on the back of J.Dey. When J.Dey stopped his motorcycle to find out what had happened, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya fired four more bullets from his revolver and then all of them fled away. 176

219. If the statements made by the accused no.5­Arun Dake are considered in the light of the charges framed against him and the accused nos.1 to 4, 6 & 7, then it will be clear that it amounts to a confession under the law. He has not only admitted his guilt but he has also clearly specified the role of the accused nos.1 to 4, 6 & 7 in the incident. It is very much clear from the statements made by him that the murder of J.Dey was a well planned affair and was executed meticulously. Therefore, once the prosecution proves that the same was voluntary and truthful, the confession made by the accused no.5­Arun Dake can be used not only against him but it can also be used against the accused nos.1 to 4, 6 & 7.

EVIDENCE REGARDING VOLUNTARY NATURE & TRUTHFULNESS OF THE CONFESSION MADE BY THE ACCUSED NO.5­ARUN DAKE. 220. The next question which arises for consideration is whether the confession made by the accused no.5­Arun Dake was voluntary and truthful.

221. “Voluntary' means a statement made of the free will and accord of the accused, without coercion, whether from fear of any threat of harm, promise or inducement or any hope of reward. The crux of making a statement voluntarily, is what is intentional, intended, unimpelled by other influence, acting on one's own will, through his own conscience. 'Truthful' means honest and not containing or telling any lies.

222. In order to prove that the confession made by the accused no.5­ Arun Dake was voluntary and truthful, the prosecution has relied upon the evidence of PW.103­API Tukaram Dewoolkar, PW.105­PSI Suhas Naik and PW.122­DCP Dr. Mahesh Patil. 177

223. PW.103­API Tukaram Dewoolkar was attached to Office of the Crime Branch, Unit no.1 at the relevant time. He deposed that on 13/09/2011, PW.143­ACP Duraphe told him that the accused no.10­ Paulson Palitara wanted to make a confession. He deposed that in all three accused persons wanted to make confession. He deposed that on 15/07/2011, PW.143­ACP Duraphe told him that the accused no.9­ Deepak Sisodiya also wanted to give confession and he told him to produce the said accused before PW.124­DCP Chhering Dorje. He deposed that on 02/08/2011, PW.143­ACP Duraphe told him that another accused wanted to make confession and that he should be produced before PW.122­DCP Dr. Mahesh Patil. He deposed that at the time of deposing he did not remember the name of that accused. He deposed that two constables were deputed to assist him. He deposed that when he went to the Office of PW.122­DCP Dr. Mahesh Patil along with the deputed staff and the accused no.5­Arun Dake in Police vehicle he came to know that PW.122­DCP Dr. Mahesh Patil was held up in a conference. He deposed that they did not permit the accused no.5­Arun Dake to speak to anybody. He deposed that at about 08:00 pm the accused no.5­Arun Dake was produced before PW.122­DCP Dr. Mahesh Patil. He deposed that before taking the accused no.5­Arun Dake to the Office of PW.122­DCP Dr. Mahesh Patil the accused no.5­Arun Dake was medically examined. Before the Court, he could not identify the accused no.5­Arun Dake.

224. At this stage, as PW.103­API Dewoolkar did not support the case of the prosecution, he was cross­examined by the learned SPP. In cross­ examination, he admitted that on 15/07/2011, he had taken the accused no.5­Arun Dake to PW.122­DCP Dr. Mahesh Patil for recording his confession under the MCOC Act,1999. He identified the accused no.5­ 178

Arun Dake in the Court on being pointed out by the learned SPP. He admitted that on 15/07/2011 two Police Naiks by name Shri Hake and Shri Jagtap accompanied him to the Office of PW.122­DCP Dr. Mahesh Patil. He admitted that on 15/07/2011 he had taken the custody of the accused no.5­Arun Dake at 09:30 am and he reached the Office of PW.122­DCP Dr. Mahesh Patil at 11:00 am. He admitted that when they reached there PW.122­DCP Dr. Mahesh Patil was not present in the Office and therefore, they kept the accused no.5­Arun Dake in the Office of the Reader of PW.122­DCP Dr. Mahesh Patil. He admitted that PW.122­DCP Dr. Mahesh Patil came to his Office at about 08:00 pm after attending some proceedings in the Hon'ble High Court and in the Office of the Commissioner of Police. He admitted that he then narrated the facts to PW.122­DCP Dr. Mahesh Patil. He stated that he also gave the letter issued by PW.143­ACP Duraphe in the name of PW.122­DCP Dr. Mahesh Patil. He stated that he had produced the accused no.5­Arun Dake before PW.122­DCP Dr. Mahesh Patil in a veil. He stated that he had made an entry in the station diary regarding the above mentioned proceedings after he returned to the Police Station.

225. PW.103­API Dewoolkar admitted that on 02/08/2011, he was directed to produce the accused no.9­Deepak Sisodiya before PW.124­DCP Chhering Dorje. He admitted that accordingly, he took Police Naik Shri Juwatkar and Police Naik Shri Salim Mulla with him and produced the accused no.9­Deepak Sisodiya before PW.124­DCP Chhering Dorje. He admitted that he had taken the custody of the accused no.9­Deepak Sisodiya at 01:25 pm and produced him before PW.124­DCP Chhering Dorje at 02:00 pm. He admitted that he had taken the accused no.9­ Deepak Sisodiya in a Government vehicle and nobody was permitted to meet him. He stated that he had made the station diary entry regarding 179 taking the custody of accused no.9­Deepak Sisodiya and his production before PW.124­DCP Chhering Dorje. He stated that PW.143­ACP Duraphe had given him the letter dated 02/08/2011 in the name of PW.124­DCP Chhering Dorje.

226. PW.103­API Dewoolkar admitted that on 13/09/2011, the accused no.10­Paulson Palitara was produced before PW.119­DCP Manohar Dalvi and for that purpose, he had taken Police Naik Shri Jagtap and Police Constable Shri Madavi along with him. He admitted that on that day, he had taken the custody of the accused no.10­Paulson Palitara at 03:20 pm. He admitted that the accused no.10­Paulson Palitara was kept in a veil. He admitted that the accused no.10­Paulson Palitara was produced before PW.119­DCP Manohar Dalvi at 03:30 pm. He admitted that after taking custody of the accused no.10­Paulson Palitara, they went to the Office of PW.119­DCP Manohar Dalvi by walk. He admitted that they did not permit anybody to talk to the accused no.10­Paulson Palitara. He stated that he gave the letter dated 13/09/2011 issued by PW.143­ACP Duraphe to PW.119­DCP Manohar Dalvi. He stated that he had made an entry in the station diary regarding the taking of custody of accused no.10­Paulson Palitara and handing him over to PW.119­DCP Manohar Dalvi. To a specific question put to him by the learned SPP regarding the incorrect statement made by him in his examination­in­chief that on 15/07/2011 he had taken accused no.9­Deepak Sisodiya to PW.124­DCP Chhering Dorje and that on 02/08/2011, he had taken another accused to PW.122­DCP Dr. Mahesh Patil, he stated that he did not remember the exact facts as he had taken three different accused persons to three different Deputy Commissioners of Police. 180

227. In cross­examination on behalf of accused no.1,6 and 7, he admitted that the names of the Police staff who were to accompany him to the Office of the Deputy Commissioner of Police were not made known to him earlier. He stated that the accused persons who were taken for recording of confession were in Police custody. He denied that after the confession of the accused persons was recorded they were again taken to the Police Station. He stated that he was not aware when the accused persons were brought to his Office after their arrest. He denied that all the Officers of DCB, Unit no.1 were involved in the investigation of this case. He admitted that his superior Officers did not give him any details of this case.

228. In cross­examination on behalf of the accused nos.5 and 11, he stated that he had retired from service in July 2015. He stated that they had gone to the office of PW.122­DCP Dr.Mahesh Patil in the Qualis vehicle belonging to the Crime Branch. He stated that the driver of that vehicle had made the necessary entry in that regard in the log book which was maintained by the driver. He stated that from the Office of the Crime Branch they directly went to the Office of PW.122­DCP Dr. Mahesh Patil. He stated that they did not go anywhere else. He stated that he did not remember the exact name of the Reader who was present in the Office of PW.122­DCP Dr. Mahesh Patil. He stated that the Reader was holding the post of Police Inspector and his surname was Shri Rane or Shri Sawant. He stated that nobody else was present there. He stated that PW.122­DCP Dr. Mahesh Patil came to his Office at about 08:30 pm. He stated that on that day from 01:00 pm to 08:30 pm he was with the accused no.5­Arun Dake in the Office of PW.122­DCP Dr. Mahesh Patil and during that period, he did not go outside. He stated that he had his lunch and tea in that Office itself. He stated that he had called for lunch from outside as he did not 181 have his tiffin box with him. He stated that the accused no.5­Arun Dake was in a veil and for enabling him to have lunch his veil was removed. He stated that he immediately produced the accused no.5­Arun Dake before PW.122­DCP Dr. Mahesh Patil after he came to his Office at about 08:30 pm. He stated that he did not take part in the investigation of this case. He stated that PW.143­ACP Duraphe had told him about the facts of this case much before his statement was recorded. He stated that he had briefed PW.122­DCP Dr. Mahesh Patil about the facts of the case. He stated that he did not remember the crime number of this case.

229. PW.103­API Tukaram Dewoolkar stated that he came to know that he was required to take the accused no.5­Arun Dake to the Office of PW.122­DCP Dr. Mahesh Patil on 15/07/2011 when he resumed his duty in the morning. He stated that PW.122­DCP Dr. Mahesh Patil had asked the accused no.5­Arun Dake about his name in his presence. He stated that thereafter he was asked to leave. He stated that thereafter he directly went to his Office. He stated that he did not remember the exact time at which he returned to his Office. He denied that he did not take the accused no.5­Arun Dake to the Office of PW.122­DCP Dr. Mahesh Patil at 11:00 am and that he did not wait there along with him till 08:30 pm. He denied that during that period he assaulted and tortured the accused no.5­ Arun Dake so that he should give his confession. He denied that he did not take the accused no.5­Arun Dake for medical examination. But he admitted that he did not give the medical certificate of the accused no.5­ Arun Dake to PW.122­DCP Dr. Mahesh Patil. He stated that he was not told by PW.122­DCP Dr. Mahesh Patil to get the accused no.5­Arun Dake medically examined. He stated that the accused no.5­Arun Dake was not sent for medical examination by PW.122­DCP Dr. Mahesh Patil in his presence. 182

230. The accused nos.9 and 10 adopted the cross­examination which was conducted on behalf of accused nos.5 and 11 and accused nos.1,6 and 7.

231. PW.105­PSI Suhas Naik was attached to the Police Station, Borivali at the relevant time. He deposed that on 15/07/2011, when he was on duty, at about 09:25 pm the Senior PI of the Police Station directed him to report to PW.122­DCP Dr. Mahesh Patil as the accused no.5­Arun Dake wanted to make a confession. He deposed that accordingly, he along with one Police Hawaldar and two Police Constables reported to the Office of PW.122­DCP Dr. Mahesh Patil. He deposed that when they went to the Office of PW.122­DCP Dr. Mahesh Patil, the custody of the accused no.5­ Arun Dake who was in a veil was given to them. He deposed that he then took the accused no.5­Arun Dake to Bhagvati Hospital, Borivali in a Police vehicle and he was taken to the Borivali General lock­up and kept in a separate room. He deposed that the accused no.5­Arun Dake was kept under guard and the guards were told to ensure that other persons do not contact or meet him. He deposed that on 16/07/2011, the General lock­up in which the accused no.5­Arun Dake was checked (searched). He deposed that on 17/07/2011 at about 08:40 am, he along with the Police Hawaldar and two Police Constables (who were present with him on 15/07/2011 also) again took the custody of the accused no.5­Arun Dake and took him for his medical examination to the Bhagvati Hospital, Borivali in a Government vehicle. He deposed that from there they took the accused no.5­Arun Dake to the Office of PW.122­DCP Dr. Mahesh Patil. He deposed that the accused no.5­Arun Dake was produced in a veil. He deposed that PW.122­DCP Dr. Mahesh Patil directed them to stand outside his chamber. He deposed that after some time, PW.122­DCP Dr. Mahesh Patil again handed over the custody of the accused no.5­Arun 183

Dake to them and then he was taken to the Borivali, General lock­up and lodged there. He deposed that after lodging the accused no.5­Arun Dake in the Borivali General lock­up they returned to the Police Station, Borivali.

232. PW.105­PSI Suhas Naik deposed that on 18/07/2011, PW.122­DCP Dr. Mahesh Patil again called him to his Office and gave him two envelopes and directed him to hand over those envelopes to the Additional Chief Metropolitan Magistrate, Esplanade. He deposed that PW.122­DCP Dr. Mahesh Patil also directed him to return the accused no.5­Arun Dake to PW.143­ACP Duraphe. He deposed that he then took the custody of the accused no.5­Arun Dake from the Borivali General lock­up and took him to the Bhagvati Hospital for his medical examination. He deposed that thereafter he produced the accused no.5­Arun Dake before the Court of the Additional Chief Metropolitan Magistrate, Esplanade. He deposed that he also gave two envelopes to the learned Additional Chief Metropolitan Magistrate and the accused no.5­Arun Dake was also produced before him. He deposed that thereafter, the Additional Chief Metropolitan Magistrate told them to stand outside. He deposed that after some time, they were called inside and the custody of accused no.5­Arun Dake was returned to him. He deposed that he then handed over the custody of accused no.5­Arun Dake to PW.143­ACP Duraphe and took the acknowledgment in that regard. He then deposed about handing over the copies of the relevant station diary extract, log book register and the documents regarding handing over of the custody of accused no.5­Arun Dake and the acknowledgement issued by the Court of the Additional Chief Metropolitan Magistrate, regarding bringing the accused no.5­Arun Dake to the Court and then to PW.143­ACP Duraphe. 184

233. In cross­examination on behalf of accused nos.1,6 and 7, he admitted that the schedule of the meetings of PW.122­DCP Dr. Mahesh Patil was fixed and accordingly the appointments were given. He admitted that during day time he did not get any information that any accused was brought or was present in the premises of the Police Station. He denied that he had prepared false station diary entries. He admitted that he had taken the accused person of this case to the Bhagvati Hospital, Borivali for medical examination. He denied that the accused no.5­Arun Dake was lodged in the Borivali Police Station.

234. In cross­examination on behalf of accused nos.5 and 11, he stated that on 15/07/2011, he reached the Office of PW.122­DCP Dr. Mahesh Patil at 09:30 pm. He voluntarily stated that the Office of PW.122­DCP Dr. Mahesh Patil was situated above the Police Station, Borivali. He stated that the Borivali General lock­up was situated at a distance of 500 to 700 meters from the Police Station, Borivali. He stated that the accused no.5­ Arun Dake was not in his custody on 14/07/2011. He denied that the accused no.5­Arun Dake was in his custody on 14/07/2011. He admitted that the letter (Exh.890) (This document was proved and exhibited during cross­examination) which was addressed to the Medical Officer of the Bhagvati Hospital, Borivali regarding medical examination of accused no.5­Arun Dake did not bear any outward number. He stated that no document was produced by him before PW.143­ACP Duraphe at the time of recording of his statement regarding the work done by him on 16/07/2011 with reference to the accused no.5­Arun Dake. He stated that the accused persons of various Police Stations from the western suburban areas who were in Police custody were also lodged in Borivali General lock­up. He admitted that whenever any person accused of committing any offence was taken out of the lock­up and whenever he was brought 185 back the entry in that regard was made in the lock­up register.

235. He stated that PW.122­DCP Dr. Mahesh Patil did not issue any letter to him while handing over the custody of the accused no.5­Arun Dake about where and how he was to be detained. He stated that it was not mandatory for making an entry in the station diary about leaving the Police Station after the duty hours. He stated that on 17/07/2011, he was in the Office of PW.122­DCP Dr. Mahesh Patil for about 3­4 hours and during that period the accused no.5­Arun Dake was inside the chamber of PW.122­DCP Dr. Mahesh Patil. He stated that after he had produced the accused no.5­Arun Dake before the Court of the learned Additional Chief Metropolitan Magistrate, Esplanade he was required to wait outside for 15­20 minutes. He stated that he went inside the Court only after the Court Clerk called him. He admitted that the accused no.5­Arun Dake was kept in Borivali General lock­up. He denied that he neither took accused no.5­Arun Dake for medical examination nor produced him before PW.122­DCP Dr. Mahesh Patil or before the learned Additional Chief Metropolitan Magistrate, Esplanade at any time.

236. PW.122­DCP Dr. Mahesh Patil recorded the confession made by the accused no.5­Arun Dake. He deposed that vide letter dated 13/07/2011 issued by the Joint Commissioner of Police (Crime) he was directed to record the confession of accused no.5­Arun Dake as he was ready to make the same. He deposed that he received the said letter on 14/07/2011 and on the same day vide letter (Exh.1160) he directed PW.143­ACP Duraphe to produce the accused no.5­Arun Dake before him on 15/07/2011. He deposed that accordingly, on 15/07/2011, the accused no.5­Arun Dake was produced before him by PW.103­API Dewoolkar along with the letter dated 15/07/2011 (Exh.1161) issued by PW.143­ACP Duraphe deputing 186

PW.103­API Dewoolkar to produce the accused no.5­Arun Dake before him. He identified the accused no.5­Arun Dake in the Court.

237. PW.122­DCP Dr. Mahesh Patil deposed that after the accused no.5­ Arun Dake was produced before him he took his custody and told PW.103­ API Dewoolkar to go outside the premises. He deposed that thereafter only himself and the accused no.5­Arun Dake were in his cabin. He deposed that he then asked the accused no.5­Arun Dake whether he wanted to make the confession voluntarily. He deposed that he then called his stenographer Mrs.Bhanushali in his cabin. He deposed that he then introduced himself to the accused no.5­Arun Dake and told him about his authority to record confession under the provisions of section 18 of the MCOC Act, 1999. He deposed that the accused no.5­Arun Dake told him that PW.143­ACP Duraphe had told him about this. He deposed that when he asked accused no.5­Arun Dake as to which language he could read write and speak, he replied that he could speak and read Marathi but he could not write properly in Marathi.

238. PW.122­DCP Dr. Mahesh Patil deposed that he then informed the accused no.5­Arun Dake that he had no connection with this case. He deposed that on being asked by him, the accused no.5­Arun Dake stated that he was voluntarily making the confession as he was repenting.

239. He deposed that on being asked by him, the accused no.5­Arun Dake stated that he did not receive any assurance from the Investigating Officer or any other Officer connected with this case that he would be released if he made confession, that no offer was made to him that he could be made an approver if he made the confession, that he was not threatened by any Officer connected with this case, that he did not have 187 any complaint against the Investigating Officer of this case and that he did not want to take advice from his Advocate or any of his relative. He deposed that when he cautioned the accused no.5­Arun Dake that if he made confession it could go against him and he could be convicted, the accused no.5­Arun Dake told him that he was aware about that. He deposed that when he told the accused no.5­Arun Dake that if he did not want to make any confession he will not record the same, he replied that he wanted to make the confession as he wanted to tell the truth. He deposed that on being asked by him, the accused no.5­Arun Dake stated that he was firm on his decision to make the confession.

240. He deposed that from the answers given by the accused no.5­Arun Dake to the questions put by him he gathered that accused no.5­Arun Dake was firm on his decision to make the confession but he gave a period of 36 hours to the accused no.5­Arun Dake to reconsider his decision to make the confession. He deposed that he told the accused no.5­Arun Dake that during the period of 36 hours he would be in his custody and that the Officers connected with this case will not meet him. He deposed that he also told the accused no.5­Arun Dake that if he wanted to take the assistance of his Advocate or relatives he could do so. He deposed that the questions put by him and answers given by the accused no.5­Arun Dake were being simultaneously recorded and after taking the printout of the record (Exh.1162) the same was read over to accused no.5­Arun Dake and then his signature was taken.

241. He deposed that after the confession Part­1 (Exh.1162) was recorded, he took the certificate (Exh.1163) from his stenographer which was signed by her in his presence. He deposed that thereafter, he issued the letter (Exh.1164) addressed to the Senior PI, Borivali Police Station 188 requesting him to send one Officer and his team for taking the custody of accused no.5­Arun Dake from his Office. He deposed that by the said letter, he also directed that the accused no.5­Arun Dake should be medically examined, that he should be permitted to meet his Advocate or relatives, that he should be lodged in a separate lock­up, that no Officer connected with this case should be permitted to meet him, that a separate guard should be appointed for guarding the accused no.5­Arun Dake and that whenever the accused no.5­Arun Dake was taken out of the lock­up and brought inside the lock­up he should be in a veil. He deposed that accordingly, PW.105­PSI Suhas Naik and his staff came to his Office and while handing over the custody of accused no.5­Arun Dake to them he also handed over the letter (Exh.1165) which was in the name of Senior PI, Borivali Police Station containing the directions that the accused no.5­ Arun Dake should be kept in a separate lock­up and that no Officer from the Crime Branch should be permitted to meet him. He deposed that by the said letter, he had directed that the accused no.5­Arun Dake should be produced before him on 17/07/2011 in the morning.

242. He deposed that on 17/07/2011, the accused no.5­Arun Dake was produced before him by PW.105­PSI Suhas Naik. He deposed that thereafter, PW.105­PSI Suhas Naik and his staff was directed to go outside and only himself and the accused no.5­Arun Dake were present in his cabin. He deposed that he then called his stenographer for recording the confession of accused no.5­Arun Dake. He identified the record (Exh.1162­A) made by him in that regard.

243. PW.122­DCP Dr. Mahesh Patil deposed that before recording the confession, on being asked by him, the accused no.5­Arun Dake stated that the time given to him to reconsider his decision to make his confession 189 was sufficient. He deposed that on being asked by him, the accused no.5­ Arun Dake told him that no Officer connected with this case had met him in the lock­up and that he neither wanted to take any advice from his Advocate or relatives nor he wanted to get his confession recorded in their presence. He deposed that when he again reminded the accused no.5­Arun Dake that he was an Officer of DCP level and was authorized to record his confession u/s.18 of the MCOC Act, 1999, the accused no.5­Arun Dake told him that he was aware about that. He deposed that when he told the accused no.5­Arun Dake that there was no compulsion on him to make the confession the accused no.5­Arun Dake told him that he was ready to make the confession. He deposed that on being asked by him, the accused no.5­Arun Dake stated that he did not have any complaint against the Officers of the Crime Branch. He deposed that when he again reminded the accused no.5­Arun Dake that the confession which he was giving could be used against him in the Court and he could be convicted, the accused no.5­Arun Dake told him that he was ready to make the confession. He deposed that when he asked the accused no.5­Arun Dake whether he could write his confession in his own handwriting, the accused no.5­Arun Dake told him that it would consume a lot of time and that the confession should be recorded by him (PW.122). He deposed that the accused no.5­ Arun Dake made that statement in writing and signed the same. He deposed that from the above, he gathered that the accused no.5­Arun Dake wanted to voluntarily making the confession and that he was not under any threat, pressure, fear or stress. He deposed that as the accused no.5­Arun Dake was firm on his decision to make the confession, he started the recording of the same.

244. PW.122­DCP Dr. Mahesh Patil then deposed about what the accused no.5­Arun Dake told him and what was recorded by him (confession Part­ 190

2, Exh.1162­B). The gist of the statement (Exh.1162­B) made by the accused no.5­Arun Dake is already reproduced earlier. The same is not reproduced here to avoid repetition.

245. PW.122­Dr. Mahesh Patil deposed that after recording the confession he prepared the certificate (Exh.1162­C) in compliance of section 18 of the MCOC Act,1999, placed the confession Part­1 and Part­2 in separate envelopes, called PW.105­PSI Suhas Naik to his cabin and directed him to produce the accused no.5­Arun Dake in the Court of the learned Chief Metropolitan Magistrate on 18/07/2011 as 17/07/2011 was a Sunday. He deposed that he had issued the letter (Exh.1167) in the name of PW.105­PSI Suhas Naik in that regard. He deposed that vide letter (Exh.1169) he intimated the learned Chief Metropolitan Magistrate that he had recorded the confession of the accused no.5­Arun Dake by following the due procedure. He deposed that he also directed PW.105­PSI Suhas Naik to produce the accused no.5­Arun Dake before PW.143­ACP Duraphe after the work in the Court was over. He deposed that on 29/07/2011, he received the letter dated 28/07/2011 (Exh.1170) issued by PW.143­ACP Duraphe requesting him to furnish a copy of the statement made by the accused no.5­Arun Dake and accordingly he furnished the copy of the same in a sealed envelope to PW.143­ACP Duraphe.

246. In cross­examination on behalf of the accused no.1,6 and 7, he stated that he had not issued any directions that the accused no.5­Arun Dake should be produced in a veil before him on 15/07/2011. He admitted that in confession Part­1 it was not recorded that when the accused no.5­Arun Dake was produced before him he had come to make the confession voluntarily. He stated that while recording confession Part­ 191

1 though he had not asked the accused no.5­Arun Dake whether he was making the confession voluntarily he had asked the accused no.5­Arun Dake as to why he wanted to make the confession or whether he was under any pressure. He denied that he did not specifically note down in the confession Part­1 that period of 36 hours was being given to the accused no.5­Arun Dake for reconsidering his decision to make the confession. He admitted that in the confession Part­1 it was not specifically mentioned that he had put the questions to the accused no.5­ Arun Dake and he accordingly answered the same. He admitted that in confession Part­1 and 2, it was not mentioned that after they were recorded, the same were read over to the accused no.5­Arun Dake. He denied that the confession was a tampered document. He denied that the correspondence made by him or received by him with regard to the recording of confession was manipulated. He denied that the accused no.5­Arun Dake was falsely implicated in this case.

247. In cross­examination on behalf of the accused nos.5 and 11, he stated that he did not remember the date on which he had received the summon for deposing in this case but he might have received the summon prior to 15­20 days. He stated that he did not remember the exact date on which he was called to give evidence as per the summon. He stated that during his career as the DCP, he had recorded two confessions under the MCOC Act, 1999. He stated that on third occasion the concerned accused refused to make confession and therefore, he did not record it. He stated that as far as he could remember the confession recorded by him in this case was the first confession recorded by him. He stated that he did not remember the name of the accused who was produced before him and whose confession he had recorded in the other case. He stated that he did not remember the day, month and the year on which he had recorded the 192 confession in the other case. He stated that he could also not remember the name of the accused who had refused to make the confession in the third case. He stated that he did not remember with which Police Station that case was registered and who was the Investigating Officer of that case. He stated that in the present case, he had recorded the questions in the same format in which they were asked. He stated that he also recorded the exact answers which were given by the accused no.5­Arun Dake and that he did not make any change. He stated that he had recorded whatever the accused no.5­Arun Dake had said and no question remained to be recorded though asked by him. He stated that he did not omit any answers given by the accused no.5­Arun Dake or any questions put by him to the accused no.5­Arun Dake or any answers given by him.

248. He stated that on 14/07/2011, he had resumed his duty between 11:00 am to 12:00 in the afternoon and he was on duty till late in the night. He stated that on 15/07/2011 he had resumed his duty between 10:00 am to 11:00 am and he was in his Office till 10:00 pm to 10:30 pm. He stated that on 15/07/2011 the accused no.5­Arun Dake was produced before him at 08:15 pm. He stated that nobody informed him whether before producing the accused no.5­Arun Dake before him on that day he was taken anywhere or detained in his Office for long time. He stated that when he met PW.103­API Dewoolkar he did not ask him as to when the accused no.5­Arun Dake was taken out of lock­up, where he was taken, what he did and at what time he reached his Office (PW.122) along with the accused no.5­Arun Dake. He stated that PW.103­API Dewoolkar did not submit any report to him in that regard. He admitted that on 15/07/2011 the accused no.5­Arun Dake was in his custody from 08:15 pm to 09:40 pm. He stated that on 15/07/2011, he did not direct the Police Station, Borivali to depute any particular Officer for taking custody 193 of the accused no.5­Arun Dake.

249. He stated that on 17/07/2011, the accused no.5­Arun Dake was produced before him by PW.105­PSI Suhas Naik at about 11:00 am. He stated that the Police Station, Borivali was situated on the ground floor of the building in which his Office was situated and that his Office was situated on the second floor of that building. He stated that the Borivali General lock­up was situated at a distance of 400 to 500 meters of the Police Station, Borivali. He stated that at that time, there was a lock­up in the Police Station, Borivali but it was not operational as there were orders from the Office of the Commissioner for entire Mumbai that persons should be lodged in the Borivali General lock­up. He stated that from 15/07/2011 to 18/07/2011, he neither visited the Borivali General lock­ up nor called for the extract of the lock­up register and the lock­up movement diary of that period. He admitted that every Police Station had an Officer for night duty. He stated that he could not give the names of the Officers who were on night duty on 14/07/2011, 16/07/2011 and 17/07/2011. He admitted that a separate guard was assigned for lock­up duty and in the lock­up register the name of the accused, crime number, sections under which the accused was charged are recorded. He stated that he was not aware whether it was mandatory to issue memo for putting the accused in the lock­up or for removing from the lock­up. He stated that he did not personally issue any memo on 15/07/2011, 17/07/2011 and 18/07/2011 regarding putting the accused no.5­Arun Dake or removing him from the lock­up.

250. He stated that after the completion of recording of confession neither PW.143­ACP Duraphe nor his Office staff had met him. He stated that by the letter dated 28/07/2011 (Exh.1170) PW.143­ACP Duraphe 194 had requested him to furnish a copy of the confession of the accused no.5­ Arun Dake and vide letter (Exh.1171) he had furnished the copy of the same. He stated that the printout of the confession Part­1 was taken on 15/07/2011 and the printout of the confession Part­2 was taken on 17/07/2011. He stated that he had taken one printout of confession Part­1 and confession Part­2 and then he took the xerox of the same. He stated that he had kept the xerox copy of the same in packed condition with him in his cupboard. He stated that the xerox copy was taken by his stenographer from the machine which was in his Office. He stated that he had taken the xerox copy as he thought that the Investigating Officer may require the copy of the same. He stated that no direction or request was made to him for keeping a xerox copy of the confession with him and to send the same to the Investigating Officer on his request.

251. He stated that on 15/07/2011, the accused no.5­Arun Dake was in his custody from 08:15 pm/08:20 pm to 09:45 pm. He stated that he was not aware as to on which date the accused no.5­Arun Dake was arrested and that he did not ask the accused no.5­Arun Dake about it. He stated that he did not ask the Police Officers since when the accused no.5­Arun Dake was in Police custody nor the Police Officers gave him any information in that regard. He stated that on 17/07/2011, the accused no.5­Arun Dake told him that he was taken in custody by the Police on 26/06/2011 from Sion area. He stated that on 15/07/2011, he neither examined the body of the accused no.5­Arun Dake nor asked him whether he was medically examined. He stated that on 17/07/2011, he had asked the accused no.5­Arun Dake whether he was medically examined but he did not put any question in that regard while recording confession Part­2.

252. PW.122­DCP Dr. Mahesh Patil stated that on 15/07/2011 before 195 the accused no.5­Arun Dake was produced before him, he did not ask PW.143­ACP Duraphe as to when and to whom the accused no.5­Arun Dake for the first time showed his desire to make the confession. He stated that he neither asked such questions to the Police Officer who had produced the accused no.5­Arun Dake before him on 15/07/2011 nor did he ask the accused no.5­Arun Dake about it on 15/07/2011. He stated that the questions which were recorded in the confession Part­1 and Part­2 were put by him to the accused no.5­Arun Dake on his own. He stated that on 15/07/2011 and 17/07/2011 he did not ask the accused no.5­Arun Dake whether he had engaged any Advocate nor did he call for any information about that from the Police. He stated that he did not verify from the accused no.5­Arun Dake whether he was in a position to engage an Advocate on his own. He stated that he also did not make any arrangement of an Advocate for accused no.5­Arun Dake as he did not make any such request. He stated that all the statements were voluntarily made by the accused no.5­Arun Dake and that he did not feel like seeking any clarification or details from the accused no.5­Arun Dake. He stated that it took 2 hours to 2 hours and 15 minutes to complete the recording of the narration part of the confession Part­2 from page no.3 to page no.10. He stated that before taking the printouts of the confession Part­2 the contents of the same were read over the accused no.5­Arun Dake. He stated that he was reading all the contents and the accused no.5­Arun Dake was listening. He stated that certificate (Exh.1162­C) was prepared after the signatures of the accused no.5­Arun Dake were taken on the confession. He stated that the printout of the certificate (Exh.1162­C) was taken on a separate page as he felt that it would not fit in the space which was available at page no.10 of the statement. He denied that the space available at page no.10 of the confession Part­2 was sufficient to accommodate the certificate (Exh.1162­C). 196

253. He stated that on 17/07/2011, the accused no.5­Arun Dake was produced before him at 11:00 am. He stated that after the confession Part­ 1 and 2 were recorded and sealed in two packets, his stenographer who typed the said statement on the computer deleted the file. He stated that he had recorded whatever the accused no.5­Arun Dake had narrated and that he did not add anything on his own. He stated that after the accused no.5­Arun Dake was produced before the learned Chief Metropolitan Magistrate no report was submitted to him by the Officer. He denied that when the accused no.5­Arun Dake was produced before him on 15/07/2011 he had informed him that he was assaulted and ill­treated by the Police. He denied that the accused no.5­Arun Dake did not voluntarily make the confession before him.

ANALYSIS 254. At the outset, it may be stated that the learned Advocate for the accused no.5 argued that the Criminal Manual and Cr.P.C.,1973 provide for the various precautions which are required to be taken while recording the confession and as PW.122­DCP Dr. Mahesh Patil failed to take those precautions, the confession made by the accused no.5­Arun Dake is required to be discarded. According to him, PW.122­DCP Dr. Mahesh Patil has given a go by to almost all the important precautions which were required to be taken by him before recording the confession of the accused no.5­Arun Dake which creates a serious doubt about the voluntary nature of the confession made by the accused no.5­Arun Dake. In this regard, reliance was placed upon the judgments in the case of Rabindra Kumar Pal @ Dara Singh V. Republic of India reported in 2011 ALL MR (Cri) 673 (S.C.) and Bhagwan Singh and Ors. V. State of M.P. reported in AIR 2003 SC 1088. 197

255. The above submission made by the learned Advocate for the accused no.5­Arun Dake cannot be accepted. Whether the confession made by the accused no.5­Arun Dake was voluntary or not will have to be considered in the light of the provisions of section 18 of the MCOC Act,1999 and Rule 3 of the MCOC Rules,1999 and not in the light of the provisions of the Cr.P.C.,1973 or the guidelines provided in the Criminal Manual. This is so, because MCOC Act,1999 is a special Statute and its provisions will prevail over the general guidelines provided in Cr.P.C.,1973 and in the Criminal Manual regarding the procedure to be followed while recording confession. The view taken by this Court is in consonance with the view taken by the Hon'ble Supreme Court of India in the case of S.N.Dube V. N.B.Bhoir and others reported in (2000) 2 SCC 254. In that case, the Hon'ble Supreme Court of India has observed that the Police Officer recording a confession u/s.15 of the TADA Act,1987 is not bound to follow any other procedure. The Hon'ble Supreme Court of India has further observed that the Rules or the guidelines framed by the Hon'ble Bombay High Court for recording a confession by a Magistrate u/s.164 Cr.P.C.,1973 do not by themselves apply to recording of a confession u/s.15 of the TADA Act,1987 and merely because some of those guidelines were not followed while recording the confession it cannot for that reason be held that the said confession has lost its evidentiary value. The said judgment is squarely applicable to the present case as the provisions of section 18 of the MCOC Act,1999 and the provisions of Section 15 of TADA Act,1987 are pari materia. Therefore, the law settled under TADA Act,1987 will be applicable as binding precedent in a case under MCOC Act,1999. As such, this Court is only required to see whether while recording the confession made by the accused no.5­Arun Dake, the provisions of section 18 of the MCOC Act,1999 and the MCOC 198

Rule,1999 were followed or not. Therefore, the reliance placed upon the judgments in the case of Rabindra Kumar Pal @ Dara Singh (supra) and Bhagwan Singh (supra) is of no consequence.

256. While finding whether there was total compliance of section 18 of the MCOC Act,1999 and Rule 3 of the MCOC Rules,1999 at the time of recording the confession made by the accused no.5­Arun Dake, it will also be necessary to take into account, the provisions of section 80 and section 114 of the Evidence Act,1872. They are reproduced below for ready reference:

“80. Presumption as to documents produced as record of evidence.­Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume— that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.

114. Court may presume existence of certain facts. ­The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume— (a)­­ (b)­­ (c)­­ 199

(d)­­ (e) that a judicial and official acts have been regularly performed; (f)­­­”

The rule is, omnia praesumuntur legitime facta donec probetur in contrarium­ All things are presumed to be lawfully done, until proof be made to the contrary.

257. It is not in dispute that PW.122­DCP Dr. Mahesh Patil was competent to record the confession of accused no.5­Arun Dake. From his evidence, it is also clear that he was authorized by Joint Commissioner (Crime), Mumbai to record the confession of accused no.5­Arun Dake. Accordingly, vide letter (Exh.1160) he directed PW.143­ACP Duraphe to produce the accused no.5­Arun Dake before him on 15/07/2011. In view of the orders of PW.143­ACP Duraphe, on 15/07/2011, PW.103­API Dewoolkar left his office at 09:30 am for the Office of PW.122­DCP Dr. Mahesh Patil along with the accused no.5­Arun Dake after making the station diary entry (Exh.882) and he reached there at 11:00 am. PW.103­ API Dewoolkar also produced the letter (Exh.1161) issued by PW.143­ACP Duraphe authorizing him for producing the accused no.5­Arun Dake before PW.122­DCP Dr. Mahesh Patil. It may be noted that as at that time PW.122­DCP Dr. Mahesh Patil had gone out for some official work, PW.103­API Shri Dewoolkar was required to wait in the Office of PW.122­ DCP Dr. Mahesh Patil till about 08:00 pm to 08:30 pm and during that period, he ensured that nobody met the accused no.5­Arun Dake. Further, after PW.122­DCP Dr. Mahesh Patil returned to his office, PW.103­API Dewoolkar briefed him about the accused no.5­Arun Dake. Thereafter, PW.122­DCP Dr. Mahesh Patil took the custody of the accused no.5­Arun Dake and PW.103­API Dewoolkar was asked to leave. Accordingly, he 200 returned to his Office at about 10:00 pm and made the station diary entry (Exh.883) in that regard.

258. From the answers given to question nos.261 & 262 of the statement recorded u/s.313(b) of Cr.P.C.,1973, it is quite clear that the accused no.5­Arun Dake has admitted that on 15/07/2011, he was produced before PW.122­DCP Dr. Mahesh Patil by PW.103­API Dewoolkar but his case is that he was kept there for four days. However, there is no evidence in that regard. Further, no such stand was taken during the cross­ examination of the concerned witnesses.

259. It is also seen that before recording the confession Part­1 (Exh.1162) of the accused no.5­Arun Dake, PW.122­DCP Dr. Mahesh Patil had complied with the provisions of Rule 3(2), Rule 3(3) and Rule 3(4) of the MCOC Rules, 1999. There is nothing to suggest that PW.122­DCP Dr. Mahesh Patil was associated with the investigation of this case in any manner. After taking the accused no.5­Arun Dake in his custody he ensured that no Police Officer who had taken part in the investigation of this case was present at the time of recording of the confession. By putting general questions to the accused no.5­Arun Dake, he ensured that there was a free and comfortable atmosphere to enable the accused no.5­Arun Dake to express his feelings. He closed the door of his cabin to ensure that nobody could see him. Thereafter, PW.122­DCP Dr. Mahesh Patil also informed the accused no.5­Arun Dake that he was not associated with this case in any manner. On being asked by him, the accused no.5­Arun Dake told him that he was making the confession voluntarily as he was repenting. He also verified from the accused no.5­Arun Dake whether any assurance was given to him that he would be released if he made the confession or if he turned into an approver. On being asked by him, the 201 accused no.5­Arun Dake told him that he was not threatened by any Officer connected with this case nor he had any complaint against the Investigating Officer of this case. He also cautioned the accused no.5­Arun Dake in very clear terms that if he made the confession, the same could be used as evidence against him and he could be convicted. He had also put several other questions to the accused no.5­Arun Dake for satisfying himself that the accused no.5­Arun Dake was making the confession voluntarily. After being satisfied, he gave a period of 36 hours to the accused no.5­Arun Dake to reconsider his decision to make the confession. This was done in compliance of the provisions of Rule 3(4) of the MCOC Rules,1999. The object of giving such time to the accused no.5­Arun Dake was to ensure that he was completely free from Police influence. To ensure that the accused no.5­Arun Dake did not feel any pressure, PW.122­DCP Dr. Mahesh Patil clearly told him that during that period he would be in his custody and that the Officers connected with this case will not meet him. The evidence of PW.122­DCP Dr. Mahesh Patil on this point is consistent with the contents of the confession Part­1 (Exh.1162).

260. It is also seen that after the proceedings of the confession Part­1 (Exh.1162) were over, he had taken the certificate (Exh.1163) from his stenographer to the effect that all the contents of the confession Part­1 and the questions put to the accused no.5­Arun Dake by PW.122­DCP Dr. Mahesh Patil and the answers given by him were typed on the computer. Thereafter, PW.122­DCP Dr. Mahesh Patil issued the letter dated 15/07/2011 (Exh.1164) to the Senior PI, Police Station, Borivali for sending a team to take custody of the accused no.5­Arun Dake. By the said letter, he also directed the Senior PI, Police Station, Borivali to ensure that after taking the custody of the accused no.5­Arun Dake he should be first medically examined, that he should be kept in a separate room, that his 202 room should be guarded, that nobody should talk to to him and that if the accused no.5­Arun Dake desired he should be permitted to meet his Advocate or friends, relative. The contents of the letter (Exh.1164) corroborate the evidence of PW.122­DCP Dr. Mahesh Patil on this point. Further, the fact that he did not direct the Senior PI of the Police Station, Borivali to depute any particular Officer for taking the custody of the accused no.5­Arun Dake from his Office shows that he was doing his work impartially and without showing any favour to anybody.

261. In view of the letter (Exh.1164), PW.105­PSI Suhas Naik was deputed to take over the custody of the accused no.5­Arun Dake from PW.122­DCP Dr. Mahesh Patil. Accordingly, after the necessary station diary entry was made, he left for the Office of PW.122­DCP Dr. Mahesh Patil and after taking the custody of the accused no.5­Arun Dake he first got him medically examined in the Bhagvati Hospital, Borivali and then returned to the Police Station, Borivali. After returning to the Police Station, Borivali, he made the necessary station diary entry. Thereafter, as per the instructions contained in the letter (Exh.1164), the accused no.5­ Arun Dake was lodged in a separate lock­up in the Borivali General lock­ up, Borivali which was at a distance of about 500 to 700 meters from the Police Station, Borivali. Further, he also instructed the concerned Officer to keep the accused no.5­Arun Dake under guard. This fact has been re­ affirmed by him during his cross­examination. Thus, it can be seen that complete caution and care was exercised by PW.122­DCP Dr. Mahesh Patil and PW.105­PSI Suhash Naik.

262. It may be noted that from the answers given to question nos.265 & 266 of the statement recorded u/s.313(b) of Cr.P.C.,1973, it is clear that the accused no.5­Arun Dake has also admitted that his custody was taken 203 by PW.PSI Suhas Naik (though he does not remember the date) and that he was then taken to the Bhagvati Hospital for his medical examination. It may also be noted that from the answer given to question no.267 of the statement recorded u/s.313(b) of Cr.P.C.,1973, it is clear that the accused no.5­Arun Dake has admitted that he was lodged in the Borivali General lock­up, Borivali. But at the same time, he has stated that he was kept there along with 5­6 other persons. But there is no evidence to suggest that he was kept in the lock­up along with any other person(s).

263. It may also be noted that vide letter (Exh.1165) issued by PW.122­ Dr. Mahesh Patil to the Senior PI, Police Station, Borivali, some of the directions mentioned in the letter (Exh.1164) were reiterated and the accused no.5­Arun Dake was directed to be produced before him on 17/07/2011 at 09:30 am. From the evidence of PW.105­PSI Suhas Naik, it is clear that on 17/07/2011 at about 08:40 am, himself along with his team again took the custody of the accused no.5­Arun Dake, got him medically examined in the Bhagvati Hospital, Borivali and then produced the accused no.5­Arun Dake before PW.122­DCP Dr. Mahesh Patil. After the accused no.5­Arun Dake was produced before PW.122­DCP Dr. Mahesh Patil on 17/07/2011, he directed PW.105­PSI Suhas Naik and his team to go outside. Thereafter, only PW.122­DCP Dr. Mahesh Patil and the accused no.5­Arun Dake were in his chamber. PW.122­DCP Dr. Mahesh Patil then called his stenographer inside his chamber. The record (Exh.1162­A page no.1) which was prepared by PW.122­DCP Dr. Mahesh Patil at that time corroborates his oral evidence in this regard.

264. It may be noted that from the answers given to question nos.269 & 270 of the statement recorded u/s.313(b) of Cr.P.C.,1973, it is clear that the accused no.5­Arun Dake has also admitted that on 17/07/2011, he 204 was first taken to the Bhagvati Hospital, Borivali for his medical examination and from there he was taken to the Office of PW.122­DCP Dr. Mahesh Patil and was produced before him.

265. From the evidence of PW.122­DCP Dr. Mahesh Patil, it is also clear that on being asked by him, the accused no.5­Arun Dake told him that the time given to him for reconsidering his decision was sufficient and during that period no Officer connected with this case had met him. Thereafter, PW.122­DCP Dr. Mahesh Patil again asked him whether he wanted to take advice of his Advocate or any of his relative but the accused no.5­Arun Dake replied in the negative. He then cautioned the accused no.5­Arun Dake that there was no compulsion for him to make the confession but the accused no.5­Arun Dake told him that he was ready to make the confession. When he again cautioned the accused no.5­Arun Dake that the confession could be used against him and that he could be convicted, the accused no.5­Arun Dake again told him that he was ready to make the confession.

266. From the above, it can be clearly gathered that it was only after PW.122­DCP Dr. Mahesh Patil was fully satisfied that the accused no.5­ Arun Dake wanted to make the confession voluntarily he decided to record the same. The various steps taken by PW.122­DCP Dr. Mahesh Patil were in compliance with the provisions of Rule 4(5) of the MCOC Rules,1999. The oral evidence of PW.122­DCP Dr.Mahesh Patil is corroborated by the record (Exh.1162­B, pages 2 and 3).

267. It is also seen that immediately after the recording of the confession Part­2 (Exh.1162­B), PW.122­DCP Dr. Mahesh Patil prepared the memorandum (Exh.1162­C) as contemplated under Rule 3(6) of the 205

MCOC Rules,1999. After the process was over, the custody of accused no.5­Arun Dake was again handed over to PW.105­PSI Suhas Naik and his team who were called for. It is also seen that in compliance of section 18(5) of the MCOC Act,1999 PW.105­PSI Suhas Naik was directed to produce the accused no.5­Arun Dake before the learned Chief Metropolitan Magistrate, Esplanade on 18/07/2011 and in the meantime to lodge him in the Borivali General lock­up and on producing him before the said Court to furnish the certified copy of the confession made by accused no.5­Arun Dake to the Court. The oral evidence of PW.122­DCP Dr. Mahesh Patil in this regard is duly corroborated by the letters (Exh.1167, Exh.1168, Exh.1169). It may also be noted that from the answers given to question nos.272, 273, 275, 276, 278 and 279 of the statement recorded u/s.313(b) of Cr.P.C.,1973, it can also be said the accused no.5­Arun Dake has also admitted that after the proceedings of the confession Part­2 were completed, PW.122­DCP Dr. Mahesh Patil handed over the custody of the accused no.5­Arun Dake and then he was taken to the Borivali General lock­up and lodged there and on 18/07/2011 he was produced before the Court of the Chief Metropolitan Magistrate, Esplanade who recorded his statement (Exh.1617). Thereafter, his custody was handed over to PW.143­ACP Duraphe.

268. From the evidence of PW.122­DCP Dr. Mahesh Patil, it can be seen that while recording the confession Part­2 made by the accused no.5­Arun Dake, he did not questions him on any aspect relating to this case. In paragraph no.18 of his evidence, it has been brought on the record that the confessions Part­1 and Part­2 were the correct and faithful record about what had transpired between him and the accused no.5­Arun Dake on 15/07/2011 and 17/07/2011, that he had faithfully recorded whatever the questions which he had asked the accused no.5­Arun Dake and the 206 answers which were given by him, that he had recorded the questions in the same format in which they were asked, that he had recorded the exact answers which were given by the accused no.5­Arun Dake and that he did not make any change and that he recorded whatever the accused no.5­ Arun Dake had said. These facts show that PW.122­DCP Dr. Mahesh Patil was conscious about his role as a Competent Officer. He was aware that his duty was only to record whatever the accused no.5­Arun Dake wanted to say and not to interrogate him and thereby step into the shoes of the Investigating Officer. This shows that the confession Part­2 (Exh.1162­B) contains the statements which were voluntarily made by the accused no.5­ Arun Dake and he recorded the same by adhering to the provisions of the law and only after he was satisfied that the accused no.5­Arun Dake wanted to make the confession voluntarily. There is nothing to suggest that the accused no.5­Arun Dake was either pressurized or coerced to make the confession or he was under duress or undue influence.

269. The fact that after the proceedings were completed, PW.122­DCP Dr. Mahesh Patil deleted the file which was in the Office computer shows that he was impartial and uninfluenced by anybody as by immediately deleting the said file from the Office computer any chance of tampering with the contents of the confession made by the accused no.5­Arun Dake was ruled out. Thus, it has to be said that the confession made by the accused no.5­Arun Dake was voluntary.

270. In so far as the truthfulness of the confession made by the accused no.5­Arun Dake is concerned, it needs to be stated that the confession made by the accused no.5­Arun Dake discloses that many of the assertions made by him are of personal nature. PW.122­DCP Dr. Mahesh Patil would not have known them unless the same were disclosed to him by the 207 accused no.5­Arun Dake or somebody else. There is nothing to suggest that any person other than the accused no.5­Arun Dake could have given such details. It is not the stand of the accused no.5­Arun Dake that his personal information which is recorded in the confession Part­2 is incorrect or false. Hence, it has to be said the confession made by the accused no.5­Arun Dake is voluntary and truthful.

271. During the cross­examination of PW.143­ACP Duraphe, it was brought on the record that in the remand applications which were filed by the prosecution, it was not mentioned that the accused no.5­Arun Dake had shown his willingness to make the confession. There is no requirement in law that such facts should be mentioned in the remand application. The steps taken during the course of the investigation are always mentioned in the case diary. That apart, had this fact been mentioned in the remand application then there was every possibility that the accused no.5­Arun Dake could have been pressurized or coerced by the accused nos.1 to 4, 6 and 7 not to make the confession as in the confession the accused no.5­Arun Dake has implicated them also.

272. It was submitted that as the confession was recorded when the accused no.5­Arun Dake was in Police custody, the same is not admissible in view of section 25 of the Evidence Act,1872. The said submission has no basis. The MCOC Act,1999 being a special Statute, the conditions specified in section 18 of the MCOC Act,1999 and Rule 3 of the MCOC Rules,1999 will prevail over all the other general provisions of the law. There is nothing in the MCOC Act,1999 or the Rules framed thereunder which bars the recording of a confession when the accused is in Police custody. In fact, in the case of Lal Singh V. State of Gujarat reported in AIR 2001 SC 746, the Hon'ble Supreme Court of India has observed that the 208 confessional statement is not rendered inadmissible on the ground that accused was in Police custody. Also, in the case of State V. Nalini and others reported in (1999) 5 SCC 253, the Hon'ble Supreme Court of India has held that just because the confession was recorded a day or so before the Police remand was to expire would not make the confession involuntary.

273. The fact that the confession made by the accused no.5­Arun Dake was voluntarily is further clear from the general conduct of PW.122­DCP Dr. Mahesh Patil. In his cross­examination it was brought on the record that till the time of deposing in this case he had recorded confessions on two occasions including the one in the present case. He has clearly stated that on the third occasion also an accused of another case was brought before him for recording his confession but when that accused told him that he was not ready to make the confession PW.122­DCP Dr. Mahesh Patil sent back that accused. Thus, it can be seen that PW.122­DCP Dr. Mahesh Patil was not only conscious of his duties but he was also performing his duties honestly.

274. It was next submitted that as the Joint Commissioner of Police has not been examined in this case, it is not clear as to when and to whom the accused no.5­Arun Dake first expressed his desire to make the confession and therefore, the confession made by the accused no.5­Arun Dake is not free from suspicion. In this regard, if the evidence of PW.122­Dr. Mahesh Patil is seen then it will be clear that vide letter dated 13/07/2011 bearing outward no.204/2011 issued to him by Shri Himanshu Roy Joint Commissioner of Police (Crime) which was received by him on 14/07/2011, he was informed that the accused no.5­Arun Dake was desirous of making the confession and that he should record the same. 209

Having said this, in the case of State of Maharashtra V. Damu S/o Gopinath Shinde reported in AIR 2000 SC 1691, the Hon'ble Supreme Court of India has observed that the Investigating agency is not bound to disclose the circumstances showing that the accused was willing to make the confession. Similarly, in the case of Devender Pal Singh V. State (NCT) of Delhi reported in (2002) 5 SCC 234, the Hon'ble Supreme Court of India (Majority view) observed that prosecution is not required to show why the accused wanted to make the confessional statement. For ready reference, paragraph no.56 of the above judgment is reproduced below:

“56. It has been pleaded that prosecution has failed to place any material to show as to why accused would make a confessional statement immediately on return to India. Acceptance of such a plea would necessarily mean putting of an almost impossible burden on the prosecution to show something which is within exclusive knowledge of the accused. It can be equated with requiring the prosecution to show motive for a crime. One cannot normally see into the mind of another. What is the emotion which impels another to do a particular act is not expected to be known by another. It is quite possible that said impelling factors would remain undiscoverable. After all, the factors are psychological phenomenon. No proof can be expected in all cases as to how mind of the accused worked in a particular situation. Above being the position, learned trial judge has rightly held the appellant to be guilty.”

275. In the same judgment, while dealing with the question of presumption u/s.114 illustration (e) of the Evidence Act, 1872, the Hon'ble Supreme Court of India has observed as under:

“...... A mere statement that requisite procedures and safeguards were not observed or that statement was recorded under duress or coercion, is really of no consequence. Such a stand can be taken in every case by the accused after having 210

given the confessional statement. It could not be shown as to why the officials would falsely implicate the accused. There is a statutory presumption under section 114 of the Evidence Act that judicial and official acts have been regularly performed. The accepted meaning of section 114(e) is that when an official act is proved to have been done, it will be presumed to have been regularly done. The presumption that a person acts honestly applies as much in favour of a Police Officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude can do neither credit to the magistracy nor good to the public. It can only run down the prestige of Police administration. [See Aher Raja Khima v. State of Saurashtra [AIR 1956 SC217].”

276. It was then argued that the confession made by the accused no.5­ Arun Dake is not voluntary as PW.122­DCP Dr. Mahesh Patil never informed him that the confession made by him could be used against the co­accused of this case also and that the accused no.5­Arun Dake was not informed that if he did not wish to make a confession he would not be sent to Police custody. The above submissions are required to be rejected. There is no requirement under the MCOC Act,1999 or the MCOC Rules,1999 that the Officer recording the confession is required to inform the confessor that the confession can be used against the co­accused also. Similarly, there is no requirement under the MCOC Act,1999 or the MCOC Rules,1999 that the accused should be intimated that if he did not wish to make a confession he would not be sent to Police custody.

277. It was argued that the confession made by the accused no.5­Arun Dake was not free from suspicion because though PW.103­API Dewoolkar deposed that on 15/07/2011 when he reached the Office of PW.122­DCP Dr. Mahesh Patil at 11:00 am along with his team he found that he was not present in the Office and he returned to his Office at about 08:00 pm after attending some proceeding in the Hon'ble High Court and in the 211

Office of the Commissioner of Police, PW.122­DCP Dr. Mahesh Patil has denied that on that day he was out of his Office for a long period of time. It was urged that if PW.122­DCP Dr. Mahesh Patil was already pre­ occupied in the morning of 15/07/2011 he could have directed PW.143­ ACP Duraphe to produce the accused no.5­Arun Dake before him in the evening. On the basis of the above, it was suggested that though PW.122­ DCP Dr. Mahesh Patil was in his Office at around 11:00 am still the accused no.5­Arun Dake was not produced before him and instead he was tortured and assaulted by PW.103­API Dewoolkar during that time and then he was produced before PW.103­DCP Dr. Mahesh Patil at around 08:30 pm. The above submission has no basis. It is well settled that unless there is evidence that the witness being Police Officers are hostile to the accused, their evidence cannot be discarded. Public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants, they are interested in the success of their case. In the present case, there is nothing to suggest that either PW.103­API Dewoolkar or PW.122­DCP Dr. Mahesh Patil had any animosity against the accused no.5­Arun Dake. In fact, prior to 15/07/2011, PW.122­DCP Dr.Mahesh Patil did not even know who the accused no.5­Arun Dake was. From the evidence of PW.103­API Dewoolkar it can be seen that after taking the custody of the accused no.5­ Arun Dake on 15/07/2011 he directly went to the Office of PW.122­DCP Dr. Mahesh Patil. He did not go any where else. On finding that PW.122­ DCP Dr. Mahesh Patil was not in his Office he kept the accused no.5­Arun Dake in the Office of the reader of PW.122­DCP Dr. Mahesh Patil and during the period 11:00 am to 08:30 pm he was with the accused no.5­ Arun Dake in the Office of reader of PW.122­DCP Dr. Mahesh Patil. According to PW.103­API Dewoolkar the name of the reader of PW.122­ 212

DCP Dr. Mahesh Patil was Shri Rane or Shri Sawant. It is not the stand of the defence that no person by name Shri Rane or Shri Sawant worked in the Office of PW.122­DCP Dr.Mahesh Patil at that time. PW.103­API Dewoolkar has stated that during that period he did not go outside. He has clarified that he had called for his lunch and tea there itself. He also admitted that from 11:00 am to 08:30 pm the accused no.5­Arun Dake was kept in a veil. He has further stated that he had produced the accused no.5­Arun Dake before PW.122­DCP Dr. Mahesh Patil immediately after he came to his chamber at about 08:30 pm after being called by him. Thus, till the arrival of PW.122­DCP Dr. Mahesh Patil, he did not go anywhere.

278. It may be noted that there is nothing on the record to indicate that during the period from 11:00 am till around 08:30 pm when the accused no.5­Arun Dake was with PW.103­API Dewoolkar, he was assaulted or tortured by PW.103­API Dewoolkar or any other Police Officer. In any case, that was not possible even remotely as during that period there would have been many other Officers in the Office of PW.122­DCP Dr. Mahesh Patil. Had PW.103­API Dewoolkar tried to assault or torture the accused no.5­Arun Dake there then there was every possibility that somebody might see him. He could not have taken such a risk.

279. At this stage, it is necessary to have a look at the stand taken by the accused no.5­Arun Dake on this point in his statement recorded u/s.313(b) of Cr.P.C.,1973. The relevant questions and the answers given by the accused no.5­Arun Dake are reproduced below for reference:

“Q.261: It has come in the evidence of PW.103­Tukaram Dewoolkar that on 15/07/2011 he took you accused­Arun Janardhan Dake to the office of PW.122­DCP Dr.Mahesh Patil for recording your confession u/s. 18 of the MCOC Act. What do 213

you have to say about it ?

Ans.: It is true but I was tortured and assaulted. I was told that I would be jailed for two years. I was told to co­operate. I was also told that the Police would help my family.

Q.271: It has come in the evidence of PW.105­Suhas Naik that PW.122­DCP Dr.Mahesh Patil told him and other Police officers to stand outside the chamber. What do you have to say about it ?

Ans.: It is not correct. As I did not sign any paper I was assaulted. When I asked the documents for reading I was not given.”

280. From the answers given by the accused no.5­Arun Dake to the questions put to him, it is quite clear that he has admitted that on 15/07/2011, he was produced before PW.122­DCP Dr. Mahesh Patil by PW.103­API Dewoolkar. But what is important is that while giving answer to the question no.261, he has stated that he was assaulted before he was taken to the Office of PW.122­DCP Dr. Mahesh Patil. But while giving answer to question no.271, he changed his stand and stated that he was assaulted in the chamber of PW.122­DCP Dr. Mahesh Patil. Thus, the accused no.5­Arun Dake has taken contradictory stand with regard to when he was allegedly assaulted. He has not given any reason as to why he changed his stand. Therefore, in absence of any positive evidence to suggest that the accused no.5­Arun Dake was assaulted and in view of the inconsistent stand taken by him it has to be said that his story about assault is false.

281. It was next argued that the evidence of PW.103­API Dewoolkar that on 15/07/2011 when he took the accused no.5­Arun Dake to the Office of PW.122­DCP Dr. Mahesh Patil in the morning is suspicious for the reason 214 that though he has deposed that at time, he was accompanied by Police Naik Shri Hake and Shri Jagtap, the extract of the station diary entry (Exh.891, 892) shows that on 15/07/2011, Police Naik Shri Hake (Buckle no.5678) joined the duty at 09:45 am and at 10:00 am he went to the Hon'ble High Court. On the basis of this, it was argued that PW.103­API Dewoolkar has falsely deposed that Police Naik Shri Hake had accompanied him to the Office of PW.122­DCP Dr. Mahesh Patil and therefore, his evidence cannot be relied upon.

282. Let's assume for a moment that Police Naik Shri Hake did not accompany PW.103­API Dewoolkar to the Office of PW.122­DCP Dr. Mahesh Patil on 15/07/2011. But how does this fact affect the evidence of PW.103­API Dewoolkar that on 15/07/2011 in the morning he had produced the accused no.5­Arun Dake in the Office of PW.122­DCP Dr. Mahesh Patil? This Court is of the view that his evidence on this point is not affected in any manner. In cross­examination, the fact that on 15/07/2011 he had taken to the accused no.5­Arun Dake to the Office of PW.122­DCP Dr. Mahesh Patil in the morning itself was got re­confirmed and it is immaterial as to who was the person who had accompanied him to that office. Also, as stated earlier, in the statement of the accused no.5­ Arun Dake which was recorded u/s.313(b) of the Cr.P.C.,1973 even he has admitted that he was produced before PW.122­DCP Dr.Mahesh Patil on 15/07/2011. Therefore, the question as to who accompanied PW.103­ API Dewoolkar to the office of PW.122­DCP Dr.Mahesh Patil at that time becomes inconsequential.

283. In so far as the evidence of PW.122­DCP Dr. Mahesh Patil is concerned, he has stated that he could not remember whether on 15/07/2011 after going to his Office he had any occasion to go out of his 215 office. He has also stated that “It did not happen that on that day, I had gone out of my Office for a long period of time.” Now, what can be 'a long period of time' is subjective. For one person, a period of 5 hours may be a long period and for another even a period of half an hour may be a long period. PW.122­DCP Dr. Mahesh Patil was not specifically asked whether on 15/07/2011, he had gone to the Hon'ble High Court for attending a matter and to the Office of the Commissioner of Police. Nothing prevented the learned Advocate for the accused no.5 from putting a direct question to PW.122­DCP Dr. Mahesh Patil on that point. Had a direct question been asked, he would have given a direct answer. It is also interesting to note that though PW.105­PSI Suhas Naik was asked about the schedule of meetings of PW.122­DCP Dr. Mahesh Patil, no such question was put to PW.122­DCP Dr. Mahesh Patil. PW.105­PSI Suhas Naik was no one to make any statements as to how the meetings and appointments of PW.122­DCP Dr. Mahesh Patil were fixed as he was not working in his office.

284. It was argued that the confession made by the accused no.5­Arun Dake is bad in law as the memorandum as contemplated by Rule 3(6) of the MCOC Rules,1999 was not appended at the end of the confession Part­ 1 which was recorded on 15/07/2011. There is no substance in the said argument. Rule 3(6) of the MCOC Rules,1999 does not contemplate appending of any memorandum after the conclusion of the proceedings confession Part­1 which are undertaken in compliance of Rule 3(4) of the MCOC Rules,1999.

285. It was next argued that the confession cannot be read in evidence as in the memorandum (Exh.1163) it is not mentioned that the contents of the confession Part­1 are 'true and correct'. In this regard reliance was 216 placed upon the judgment in the case of State of Maharashtra V. Siraj Ahmed Nisar Ahmed and ors. reported in AIR 2007 SC 1859. Again, the said submission is without any basis. The perusal of Rule 3(6) of the MCOC Rules,1999 will show that the certificate/memorandum is required to be made after the confession is recorded under Rule 3(5) of the MCOC Rules,1999 i.e. after the confession Part­2 is recorded. In so far as the judgment in the case of Siraj Ahmed Nisar Ahmed (supra) is concerned, it was a case under the TADA Act,1987. In that case, the Hon'ble Supreme Court of India observed that the certificate issued by the Police Officer who recorded the confession of the accused therein was not in compliance of Rule 15(3) (b) of the TADA Rules as there was no certification that the statement was recorded in the presence and hearing of the Police Officer; nor the statement was admitted to be correct by the accused; and that the statement contained a full and true account of what was stated by the accused. Such is not the case here. The perusal of the memorandum (Exh.1163) which was prepared after the confession Part­2 was recorded shows that all the necessary compliances under the MCOC Act,1999 and the MCOC Rules,1999 were made by PW.122­DCP Dr. Mahesh Patil. Therefore, the judgment in the case of Siraj Ahmed Nisar Ahmed (supra) is of no use to the learned Advocate for the accused no.5.

286. It was then submitted that the failure on the part of PW.122­DCP Dr. Mahesh Patil to call for a detailed report regarding the place where the accused no.5­Arun Dake was lodged between 15/07/2011 to 17/07/2011, the fact that he did not visit the Borivali General lock­up between 15/07/2011 to 17/07/2011 and the fact that PW.122­DCP Dr. Mahesh Patil did not call for the extract of the lock­up register and the lock­up movement register during the period from 15/07/2011 to 17/07/2011 casts a serious doubt about the fact that the accused no.5­Arun Dake was 217 indeed lodged in a separate room in the Borivali General lock­up. On the basis of above, it was suggested that there was no free atmosphere for reconsidering the decision to make the confession. The said submission has no merit. Section 18 of the MCOC Act,1999 or Rule 3 of the MCOC Rules,1999 does not cast a duty upon the Officer entrusted with the duty of recording confession to call for any such report or to visit the place where the accused is lodged for the purpose of reconsideration of his decision to make the confession. The learned Advocate for the accused no.5 also could not point out any other provision of law which casts such duty upon the Officer who is entrusted with the duty of recording a confession.

287. At this stage, it is necessary to state that the role of PW.122­DCP Dr. Mahesh Patil in this case was limited. He was only assigned the duty to record the confession of the accused no.5­Arun Dake if he had any desire to give the same. After the accused no.5­Arun Dake was brought to him on 15/07/2011 he gave him a period of more than 24 hours for enabling him to reconsider his decision to make the confession. By issuing the necessary letters and direction to PW.105­API Suhas Shinde, the accused no.5­Arun Dake was directed to be lodged in a separate room in the General lock­up, Borivali and for producing the accused no.5­Arun Dake before him on 17/07/2011. A further direction was issued that nobody should be permitted to meet him during that period. Thus, he performed all the ancillary acts which were reasonably expected from him.

288. As far as the fact that PW.122­DCP Dr. Mahesh Patil did not call for the extract of the lock­up register and the lock­up movement register is concerned, there is no such requirement of the law. Also, if the accused no.5­Arun Dake had any grievance about the place where he was lodged between 15/07/2011 to 17/07/2011 then nothing prevented him from 218 informing PW.122­DCP Dr. Mahesh Patil about the same. Further, if the defence had any real doubts about the lodging of the accused no.5­Arun Dake in the Borivali General lock­up then it was always open for the defence to call for the lock­up register and the lock­up movement register. But that was not done.

289. It may also be stated that it has come in the evidence of PW.105­API Suhas Shinde that in view of the instructions of PW.122­DCP Dr. Mahesh Patil, on 15/07/2011 he had taken the accused no.5­Arun Dake to the General lock­up, Borivali and lodged him in a separate room, kept him under guard and the guards were told to ensure that no one should contact the accused no.5­Arun Dake. PW.105­API Suhas Shinde left the General lock­up, Borivali only after he was satisfied that all the necessary compliance was done. On 16/07/2011, he along with his team then checked the room in which the accused no.5­Arun Dake was lodged. He had made the necessary station diary entries (Article­X­98 colly) in that regard after returning to the Police Station, Borivali. The evidence of PW.105­API Shinde on this point is reliable. It is no doubt true that the prosecution has not proved those station diary entries. But simply because a station diary entry is not proved by prosecution or simply because the lock­up register or the lock­up movement diary is not produced by the prosecution, it does not mean that Court should draw inference that substantive evidence in Court is not correct. Also, in cross­examination it was brought on record that the memo regarding the removal and return of the accused no.5­Arun Dake from the lock­up on 15/07/01 and 17/07/2011 was given to the lock­up Officer. There is no reason to disbelieve the evidence of PW.105­API Suhas Shinde.

290. It was then argued that though from the evidence of PW.103­API 219

Dewoolkar and PW.105­API Suhas Naik it appears that the accused no.5­ Arun Dake was referred to the Hospital on various occasions between 15/07/2011 to 17/07/2011 for his medical examination, none of his medical reports were filed along with the charge­sheet. On the basis of the above, it was suggested that the medical reports were purposely not filed as that would have shown that the accused no.5­Arun Dake was tortured, assaulted and pressurized to make the confession. It was also argued that the station diary entries (Exh.889 colly) were manipulated to suit the case of the prosecution and the same were not chronologically numbered. The submissions made above have no basis. It needs to be stated that there is no requirement under the MCOC Act,1999 or the MCOC Rules,1999 to refer the accused for medical examination when he is in custody for the recording of his confession. Further, the oral evidence of PW.103­API Dewoolkar and PW.105­API Suhas Naik on the above points is reliable and trustworthy. The same is corroborated by the station dairy entry (Exh.889 colly). Also, no explanation was sought from PW.143­ACP Duraphe as to why he did not file the medical reports of the accused no.5­Arun Dake when the same were with him. Therefore, only because the medical reports of the accused no.5­Arun Dake were not filed along with the charge­sheet it cannot be automatically assumed that the accused no.5­ Arun Dake was subjected to torture, assault or pressure at any point of time. That apart, if the accused no.5­Arun Dake was really tortured & assaulted and further assuming that the medical reports supported the stand taken by the accused no.5­Arun Dake then nothing prevented the defence from calling upon the prosecution to produce the medical reports of the accused no.5­Arun Dake especially because such right was exercised by the defence wherever required. But that was not done.

291. In so far as the station diary entries (Exh.889 colly) are concerned, 220 the Court cannot start with the presumption that the Police records are untrustworthy. The station diary entries (Exh.889 colly) were marked as exhibit as the learned Advocate for the accused no.5­Arun Dake had sought some explanation from PW.105­API Suhas Shinde during his cross­ examination. But, PW.105­API Suhas Shinde clearly stated that the station diary entries dated 17/07/2011 at Sr.nos.38, 43 and 56 (Exh.889 colly) were not made by him. Therefore, he was not the person who could have answered as to why the entries were not chronologically numbered. If the learned Advocate for the accused no.5 wanted to make use of the above mentioned station diary entries he ought to have taken steps to bring on record the evidence to show that the above mentioned station diary entries were manipulated. But, that was not done. Hence, in absence of any positive evidence it cannot be said that those entries are manipulated.

292. At this stage, it may be stated that in the statement recorded u/s.313(b) of Cr.P.C.,1973, the accused no.5­Arun Dake has given the following answer to the questions put to him with regard to his medical examination.

“Q.266: It has come in the evidence of PW.105­Suhas Naik that thereafter, you accused­Arun Dake was taken to the Bhagvati Hospital for medical examination. What do you have to say about it ?

Ans.: It is true. At that time, he told the Doctor to give a favourable medical report but doctor declined and told him that they should their personal hospital. The doctor told him that he should be permitted to do his work and that the Police should stand outside.

Q.269: It has come in the evidence of PW.105­Suhas Naik that on 17/07/2011 he alongwith two Police Constables and Police Hawaldars took custody of you accused­Arun Dake and took you to the Bhagvati Hospital, Borivali for your medical 221

examination. What do you have to say about it ?

Ans.: I was taken to the Bhagvati Hospital for medical examination on 2­3 occasions.”

293. From the above, it is clear that the accused no.5­Arun Dake has himself admitted that he was taken to the Hospital for his medical examination. At the same time, he has also stated that when PW.105­API Suhas Shinde told the Doctor to give a favorable report, the Doctor told him that he should be permitted to do his work. Now, if the medical report was not tampered and if the case of the accused no.5­Arun Dake that he was assaulted and tortured is to be taken note of then this was all the more reason for the defence to exercise its right of calling upon the prosecution to produce the medical reports of the accused no.5­Arun Dake as that would have shattered the case of the prosecution about the voluntary nature of the confession made by the accused no.5­Arun Dake.

294. To further show the falsity of the claim made by the accused no.5­ Arun Dake that he was assaulted, it is necessary to have a look at the order dated 18/07/2011 passed below Remand application no.82/2011. It may be noted that on that day, the accused no.5­Arun Dake was produced before the MCOC Court after he was produced before the Court of the learned Chief Metropolitan Magistrate, Esplanade in compliance of section 18(5) of the MCOC Act, 1999. The order dated 18/07/2011 reads under:

“IN THE SPECIAL COURT NO.1 UNDER MCOC ACT AT GR.BOMBAY

REMAND APPLICATION NO.82 OF 2011 IN C.R.NO. 57 OF 2011 222

State of Maharashtra (at the instance of DCB CID) . ..Complainant

V/s.

1. Rohit Tangappan Joseph @ Satish Kalya @ Sir

2. Anil Bhanudas Waghmode

3. Abhijeet Kashinath Shinde

4. Nilesh Narayan Shedge @ Bablu

5. Arun Janardan Dake

6. Mangesh Damodar Agavane @ Mangya

7. Sachin Suresh Gaikwad

8. Vinod Govardhandas Asrani @ Vinod Chembur ...Accused

SPP D. M. Shah for the State. Advs. Sejpal for accused nos.1 to 7 and Mr. S. M.Raj h/f. Akhilesh Dubey for accused no.8.

CORAM : The Special Judge under MCOC Act SHRI Y.D.SHINDE DATE : 18th JULY, 2011 (C. R. No.57)

ORAL ORDER

1. The investigating officer prays for further police custody of accused no.3, 4, 6 and 7 and judicial custody of accused no. 1, 2, 5 and 8. All accused are produced in veil before me. Except accused no. 5, remaining accused have no complaint of ill­ treatment at the hands of police. The accused no.5 submits that he was tortured and his signature was taken forcibly. However, on inquiry, he states that there are no visible injuries and he sustained dumb injuries and was threatened that his family members will be tortured. He submits that he was medically examined on 15 and 17/7/2011 and he has stated the above 223 injuries to the doctor. Since, the accused no.5 submits that there are no visible injuries, it is not necessary to send him for medical examination. Similarly, the police are asking for his judicial custody.

2. Grounds for seeking further police custody are for investigating about the information given by the accused, to arrest the wanted accused, to inquire about the persons who had supplied weapons and money, to inquire deeply into the intention behind the murder of the reporter J. Dey, to search for independent witnesses who had seen the accused committing the offence, to inquire about the mobile and global card used by the arrested accused, to inquire about the contacts that the accused made outside the country. In the last reason it is mentioned that some confidential information is received and it has to be verified from the accused no. 3, 4, 6 and 7. For these reasons, the investigating officers prays for remanding them to police custody.

2. Heard learned SPP D. M. Shah and learned advocates Sejpal for the accused no.1 to 7. Perused case diary. It reveals that the confidential information mentioned in the last ground is received on 15/7/2011 and on subsequent days it is being verified with the accused no. 3, 4, 6 and 7 but without much success. In these circumstances, I am of the view that the police deserve an opportunity for further custodial interrogation insofar as the confidential information that is obtained by them about the intention behind the murder of the reporter J. Dey. Hence, I pass the following order:

ORDER Remand Application No.82 of 2011 is allowed and disposed off as follows :

A1­ Rohit Tangappan Joseph @ Satish Kalya @ Sir, A2 ­ Anil Bhanudas Waghmode, A5 ­ Arun Janardan Dake and A8 ­ Vinod Govardhandas Asrani @ Vinod Chembur are remanded to judicial custody upto 22/7/2011.

A3 ­ Abhijeet Kashinath Shinde, A4 ­ Nilesh Narayan Shedge @ Bablu, A6 ­ Mangesh Damodar Agavane @ Mangya and A7 ­ Sachin Suresh Gaikwad are remanded to further police custody upto 22/7/2011. 224

sd/­ (Y.D.SHINDE) Date : 18/07/2011 Special Judge under MCOC Act.”

(Reproduced as it is. Underlining by this Court.)

295. From the above, the following facts become very clear:

(a) The accused no.5­Arun Dake admitted that he was medically examined on 15/07/2011 and 17/07/2011;

(b) Though the accused no.5 made a grievance that he was tortured and his signature was taken forcibly, when the Court made enquiry with him, he stated that there were no visible injuries, that he sustained dumb injuries and that he was threatened that his family members will be tortured. In view of his statement he was not sent for medical examination by the Court.

(c) The accused no.5­Arun Dake was represented before the Court by an Advocate of his choice.

296. The only inference which can be drawn from the above is that the grievance that on 15/07/2011 and 17/07/2011 the accused no.5­Arun Dake was not medically examined is false. The further grievance that the accused no.5­Arun Dake was assaulted and tortured also appears to be false as he had himself stated before the Court that there were no visible injuries on his body and that he had sustained dumb injuries. Had any third degree force been used, then definitely there would have been marks of injury on the person of the accused no.5­Arun Dake. But, there was no 225 such mark. It is only because of the above statement made by the accused no.5­Arun Dake that the Court did not refer the accused no.5­Arun Dake for medical examination. Had the accused no.5­Arun Dake been really assaulted or manhandled then there was no reason for him not to request the Court to send him for the medical examination. Thus, he avoided to undergo medical examination. The fact that neither the accused no.5­Arun Dake nor his Advocate made any request to the Court for referring the accused no.5­Arun Dake for medical examination itself shows the falsity of the claim made by the accused no.5­Arun Dake. For this reason, the fact that the accused no.5­Arun Dake was not referred for medical examination by the learned Chief Metropolitan Magistrate, Esplanade in compliance of Section 18(6) of the MCOC Act, 1999 becomes insignificant.

297. It was next submitted that the case of the prosecution that the custody of the accused no.5­Arun Dake was handed over to PW.105­API Suhas Shinde on 15/07/2011 is suspicious as PW.105­API Suhas Shinde has admitted that the requisition (Exh.890) dated 14/07/2011 regarding medical examination of the accused no.5­Arun Dake was written by him. It was argued that the custody of the accused no.5­Arun Dake was already taken on 14/07/2011 and he was assaulted and forced to make the confession. It is a well settled rule of appreciation of evidence that the Court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the evidence as a whole. This Court has gone through the entire evidence of PW.105­API Suhas Shinde. There is nothing suspicious in his evidence. Also, as observed earlier, there is absolutely no evidence to suggest that the accused no.5­Arun Dake was assaulted or tortured at any time. It is no doubt true that the requisition (Exh.890) is dated 14/07/2011. But no explanation was sought from PW.105­API Suhas Shinde about the date on 226 the requisition (Exh.890). Had any explanation been sought from him, the this Court would have considered whether the explanation was reasonable or not. Also, it is not the stand of the accused no.5­Arun Dake that on 14/07/2011 he was in the custody of PW.105­API Suhas Shinde and he was the person who assaulted or tortured him. Otherwise, he would have definitely made a complaint in that regard to PW.122­DCP Dr. Mahesh Patil when he was produced before him on 15/07/2011. Further, it is quite possible that while writing the date on the requisition (Exh.890), PW.105­API Suhas Shinde may have inadvertently written the date as “14/07/2011” instead of “15/07/2011”. This can happen to anyone. Such errors are not unusual. Therefore, taking overall view of the evidence of PW.105­API Suhas Shinde this Court is not inclined to read much into the date of the requisition (Exh.890).

298. It was argued by the learned Advocate for the accused nos.1,6 and 7 that in order to avoid any suspicion, PW.122­DCP Dr. Mahesh Patil ought to have recorded the confession made by the accused no.5­Arun Dake on any mechanical device as provided under Rule 3(7) of the MCOC Rules,1999. The perusal of Rule 3(7) of the MCOC Rules,1999 will show that it is not mandatory to record all the confessions by using mechanical device. It is only optional. An Officer recording the confession may choose such mode for recording the confession with which he is most comfortable. Hence, just because PW.122­DCP Dr.Mahesh Patil has not recorded the confession made by the accused no.5­Arun Dake in the mode as desired by the learned Advocate for the accused nos.1,6 and 7 will not make the confession made by the accused no.5­Arun Dake involuntary.

299. It was next argued that the possibility of the confession Part­2 already being prepared prior to 17/07/2011 cannot be ruled out as from 227 the evidence of PW.122­DCP Dr. Mahesh Patil it appears that he was provided with the relevant extract of the MCOC Rules (Exh.1182) much prior to 17/07/2011. The above submission does not deserve any comment. But as a question is raised it has to be answered. PW.122­DCP Dr. Mahesh Patil has clearly deposed that the extract of the MCOC Rules,1999 (Exh.1182) which was annexed to the letter (Exh.1170) was sent to him by PW.143­ACP Duraphe along with the letter (Exh.1170). Now, the letter (Exh.1170) was issued by PW.143­ACP Duraphe on 28/07/2011 i.e. much after the confession of the accused no.5­Arun Dake was recorded. That letter was issued by him to PW.122­DCP Dr. Mahesh Patil requesting him to furnish a copy of the confession made by the accused no.5­Arun Dake for which he was entitled under Rule 3(8) of the MCOC Rules,1999. Further, PW.143­ACP Duraphe was not questioned on this point in cross­examination. Therefore, by any stretch of imagination it cannot be accepted that the extract (Exh.1182) was sent to PW.122­DCP Dr. Mahesh Patil even before 17/07/2011. Even if it assumed that the extract (Exh.1182) of the MCOC Rules, 1999 was sent to PW.122­DCP Dr.Mahesh Patil prior to 17/07/2011, the defence has not explained as to how it has affected the voluntary nature of the confession made by the accused no.5­Arun Dake.

300. It was next argued that the failure on the part of PW.122­DCP Dr. Mahesh Patil to make enquiry about the date and place of the arrest of the accused no.5­Arun Dake, about the time since when he was in Police custody, not examining his body or not asking him whether he was medically examined also casts a serious doubt about the voluntary nature of the confession made by the accused no.5­Arun Dake. The said submission has no basis. As stated earlier, the only role of PW.122­DCP Dr. Mahesh Patil in this case was to record the confession made by the 228 accused no.5­Arun Dake if he was willing to make it. He was required only to follow the provisions of section 18 of the MCOC Act,1999 and Rule 3 of the MCOC Rules,1999 while recording the confession of the accused no.5­ Arun Dake. The law does not cast such duty on the Officer before whom an accused is produced for recording confession. Therefore, the alleged failure on the part of PW.122­DCP Dr. Mahesh Patil to make enquiry as suggested by the defence does not affect the case of the prosecution especially because he was already briefed about the necessary facts when the accused no.5­Arun Dake was produced before him on 15/07/2011 by PW.103­API Dewoolkar.

301. It was also argued that many of the statements made by PW.122­ DCP Dr. Mahesh Patil in his examination­in­chief do not find place in the confession Part­2. It was argued that the fact that while on one hand PW.122­DCP Dr. Mahesh Patil has deposed that he recorded whatever the accused no.5­Arun Dake had told him, on the other hand he has admitted that some of the facts which were deposed by him in the Court did not find place in the confession Part­1 and 2. It was thus, submitted that in view of the omissions, the confession made by the accused no.5­Arun Dake cannot be relied upon. The above submission does not have any basis. The confession Part­2 is not the previous statement made by PW.122­DCP Dr. Mahesh Patil. It is the voluntary statement made by the accused no.5­Arun Dake to him. Therefore, it cannot be used to shake the evidence of PW.122­DCP Dr. Mahesh Patil in that sense. Further, it cannot be forgotten that there is bound to be substantial difference in the vocabulary and understanding of PW.122­DCP Dr.Mahesh Patil and the accused no.5­ Arun Dake. Such variations are there because there are always natural differences in the faculties of different individuals in the matter of observation, perception and memorization of the details. Therefore, just 229 because while deposing PW.122­DCP Dr.Mahesh Patil has stated a few words as per his understanding/perception, his evidence cannot be discarded especially when it is proved that PW.122­DCP Dr. Mahesh Patil had complied with the all the requirements of the law regarding the recording of the confession made by the accused no.5­Arun Dake. That apart, it is well settled that the Officer who has recorded he confession is not required to repeat the contents of the statements made by the accused. Through the evidence of PW.122­DCP Dr. Mahesh Patil the only thing which is required to be ascertained is whether there was compliance of the provisions of section 18 of the MCOC Act,1999 and Rule 3 of the MCOC Rules,1999. Once that is proved, the statements made in the confession can be used as substantive evidence. In the present case, as stated earlier, the prosecution has proved that while recording the confession made by the accused no.5­Arun Dake all the requirements under the MCOC Act,1999 and the MCOC Rules,1999 were complied with. Hence, the objection as raised cannot be sustained.

302. There is a small discrepancy as to whether after the confession Part­ 2 was recorded the contents of the same were read over to the accused no.5­Arun Dake or the accused no.5­Arun Dake read the same himself. But, what is important is whether the accused no.5­Arun Dake understood/was made to adequately understand the contents of the confession before he attested the same. It may be noted that no stand was taken during the cross­examination of PW.122­DCP Dr. Mahesh Patil that the signatures on the confession Part­1 & 2 were not of the accused no.5­ Arun Dake or that the accused no.5­Arun Dake signed the same without understanding its contents or that the accused no.5­Arun Dake was not made to understand the contents of the same and in absence of the same no value can be attached to the alleged discrepancy. 230

303. It was next argued that the memorandum (Exh.1162­C) which was prepared in compliance of Rule 3(6) of the MCOC Rules,1999 was invalid as it was prepared on a separate page and not 'at the end' of the confession and as such the confession cannot be read in evidence. There is no merit in the submission. It is no doubt true that the memorandum (Exh.1162­C) is printed on a separate page and it is not technically 'at the end' of the confession Part­2. But PW.122­DCP Dr. Mahesh Patil has explained this by stating that the printout of the memorandum (Exh.1162­ C) was taken on a separate page as he felt that it would not fit in the space which was available at page no.10 (last page) of the confession. It is no doubt true that one may say that the starting part of the memorandum (Exh.1162­C) could have been typed on the last page of the confession Part­2 and it the contents did not fit in that page then the remaining contents of the memorandum could have been typed on the next page. But in absence of any evidence to the contrary merely because the entire memorandum was typed on a separate page, it does not wash away the satisfaction which was arrived at by PW.122­DCP Dr. Mahesh Patil about the voluntary nature of the confession made by the accused no.5­Arun Dake more so for the reason that the prosecution has proved that PW.122­ DCP Dr. Mahesh Patil had followed the provisions of section 18 of the MCOC Act,1999 and Rule 3 of the MCOC Rules,1999 while recording the confession made by the accused no.5­Arun Dake.

304. Another aspect which shows the voluntary nature of the confession made by the accused no.5­Arun Dake are his signatures on the confession Part­1 & 2. If one sees his signatures, it will be clear that the style in which they are made are almost identical. Had somebody forged the signatures of the accused no.5­Arun Dake or had the accused no.5­Arun Dake been 231 under any kind of pressure or tension at that time, then definitely there would have been variation in the signatures as normally if a person is under any pressure or tension or is coerced to write or sign against his wishes, then it does affect his handwriting. But no such thing is seen in the case of the accused no.5­Arun Dake.

305. It may be noted that the accused no.5­Arun Dake was not produced before the learned Chief Metropolitan Magistrate, Esplanade on 17/07/2011 in compliance of the provisions of section 18(5) of the MCOC Act,1999. But he was produced before the said Court on the next day. It is no doubt true that as per section 18(5) of the MCOC Act,1999, the person whose confession is recorded is required to be produced before the learned Chief Metropolitan Magistrate without reasonable delay. In the present case, the proceedings of the confession Part­2 were completed at about 02:20 pm. But 17/07/2011 was Sunday and the regular Courts are closed on Sundays. Therefore, he could not have been produced before the learned Chief Metropolitan Magistrate on that day. It is true that the Holiday Courts are always working. But as stated earlier, the proceedings were completed at around 02:20 pm. The Office of PW.122­DCP Dr. Mahesh Patil was located at Borivali. It takes about one hour to reach the Court of learned Chief Metropolitan Magistrate, Esplanade from there. Therefore, by the time they would have reached the Holiday Court even the working hours of the Holiday Court would have been over. Then the only option would have been to produce the accused no.5­Arun Dake at the residence of the learned Chief Metropolitan Magistrate. But it may be noted that it is the case of the defence itself that the news about the murder of J.Dey was given wide publicity and the entire media was keeping an eagles eye over the developments of this case. Therefore, considering the huge publicity given to this case by the electronic and 232 print media, the production of the accused no.5­Arun Dake at the residence of the learned Chief Metropolitan Magistrate would have created a chaos. It has been brought on the record that after the murder of J.Dey, many morchas/processions were taken out by various groups. Under such circumstances, had the accused no.5­Arun Dake been produced before the learned Chief Metropolitan Magistrate at his residence then it would have not only endangered the safety and security of the accused no.5­Arun Dake but also the safety and security of other inmates of the building where the learned Chief Metropolitan Magistrate was residing. Therefore, the explanation given by PW.122­DCP Dr.Mahesh Patil on this point needs to be accepted.

306. It was then argued by the learned Advocate for the accused nos.1,6 and 7 that the defence was prejudiced as the copies of the some of the internal correspondence which had taken place between PW.122­DCP Dr. Mahesh Patil and the other Police Officers with regard to the confession made by the accused no.5­Arun Dake were not filed along with the charge­sheet and that some of the letters exchanged by them were produced by PW.122­DCP Dr. Mahesh Patil during the course of his evidence. The submission has no basis. The word 'prejudice' is often used loosely during the course of the arguments without understanding its actual meaning. In Black's Law Dictionary, Eight Edition, the word 'prejudice' is defined to mean damage or detriment to one's legal rights or claims. In so far as the present case is concerned, it is not the law that each and every document regarding the correspondence which was made by the Officers should be filed along with the charge­sheet. Further, the Investigating Officer is not obliged to anticipate all possible defence that may be taken and file all the correspondence which had taken place between the Officers. Also, though a claim of 'prejudice' was made no 233 argument was advanced on what damage was caused to the defence due to the non­filing of the copies of some correspondence which had taken place between the Officers. That apart, the letters (Article­X­200, Exh.1164, 1165, 1167 and 1171) were called for from PW.122­DCP Dr.Mahesh Patil by the learned SPP for better understanding of the events which had taken place at the time of recording of the confession made by the accused no.5­Arun Dake. The defence was given full opportunity to cross­examine PW.122­DCP Dr. Mahesh Patil and without any riders. Therefore, there was no question of any prejudice being caused to the defence. Also, if required, the above letter could have been called by this Court itself by exercising its power u/s.165 of the Evidence Act,1872 and had it been done so, then the right of the defence to cross­examine PW.122­DCP Dr. Mahesh Patil on those letters would have be subject to the leave of the Court. The Court may or may not have granted such leave. Hence, there is no question of any prejudice to the defence as unfettered right was conferred upon the defence to cross­examine PW.122­DCP Dr. Mahesh Patil on each and every point.

307. It was next argued that the accused no.5­Arun Dake wanted to give his 'statement' and not 'confessional statement' before PW.122­DCP Dr. Mahesh Patil. Interestingly, this argument was made by the learned Advocate for the accused nos.1,6 and 7 and not on behalf of the accused no.5­Arun Dake whose confession was recorded. One wonders how the learned Advocate for the accused nos.1,6 and 7 came to know about this as the said information could have been given by the accused no.5­Arun Dake to his Advocate only as it was a privileged communication. Anyway, the said argument has no basis. The prosecution has duly proved that the accused no.5­Arun Dake had made confessional statement before PW.122­ DCP Dr. Mahesh Patil. Under the MCOC Act,1999 PW.122­DCP Dr. 234

Mahesh Patil was empowered to record a confession and not a general statement of the accused. Further, when the accused no.5­Arun Dake was produced before PW.122­DCP Dr. Mahesh Patil he was cautioned on more than one occasion that if he makes the statement he could be punished on the basis of the same. It is not the stand of the accused no.5­Arun Dake that he was not in a position to understand what was being recorded. Also, as stated earlier, after the confession was recorded, he was produced before the Chief Metropolitan Magistrate, Esplanade on 18/07/2011 and then before the MCOC Court on the same day and on subsequent dates for the purposes of remand. But he never made any grievance on this point. That was also not a ground for retraction of the same. Therefore, the said argument needs to be rejected.

308. It was argued by the learned Advocate for the accused nos.1,6 and 7 that a ready made confession was prepared to specifically suit the case of the prosecution. It was contended that in the press conference which was held on 27/06/2011, the modus operandi of the crime was publicly declared by PW.149­CP Arup Patnaik & the Joint Commissioner of Police and the confessional statement of the accused no.5­Arun Dake was prepared accordingly to suit the case of the prosecution. The submission is too far fetched. Whenever allegations of such type are made, they must necessarily be supported by some kind of evidence. But, there is absolutely nothing on the record from which it can be even prima facie gathered that any such thing might have happened. PW.149­CP Arup Patnaik was cross­ examined by the defence on the point of press conference which was held on 27/06/2011. The relevant portion of his cross­examination is being reproduced below:

“16. It is true to say that I had stated that J.Dey was my friend. 235

I cannot say whether there any lead was received in the investigation as I was not conducting the investigation. I was briefed at the time of press conference. To the best of my knowledge, I did not declare the names of any accused of this case as the culprits. I do not remember whether the Jt. Commissioner of Police (Crime) had stated in my presence that the accused­Chhota Rajan was involved in this case. I do not remember whether the role of each accused was also disclosed by him in my presence. (At this stage, ld. Adv. Mr. Deshpande seeks permission to play a video clip which is downloaded and stored in his laptop. According to ld. Adv. Mr. Deshpande, in the said video clip the witness is shown to be briefing the media after some of the accused were arrested. Ld. SPP Mr. Gharat submits that the laptop be taken into the custody of the Court till the decision of the case as the video clip is downloaded and stored in the hard­disk of the laptop. Adv. Mr. Deshpande also submits that the custody of his laptop may be taken by the Court and it be returned after the trial is over. The request is accepted. The custody of the silver colored HP laptop bearing model no.HP Pavilion X 360 Convertible PC be taken and it be marked as Article­292.). At the request of ld. Adv. Mr. Deshpande, the video clip namely 'India today commissioner press conference' in the VLC media file format having duration of 09:53 (nine minutes and fifty three seconds) and size of 44.0 MB located in the sub­folder­ 'j.dey News report' in folder­'j.dey case folder' stored and saved in (Location C:\Users\Santosh Deshpande\Desktop) is played in the open Court. It is true to say that I had given the interview which is played now. It is true to say that the interview also contains the voice of the Jt. Commissioner of Police (Crime branch) Shri. Himanshu Roy. It is true to say that in a same press conference Shri. Himanshu Roy had briefed about the operation. Witness now states that he is admitting entire video clip. In view of the same, the video clip 'India today commissioner press conference' in the VLC media file format is marked as Exh.1494. It is not true to say that I have issued the sanction order mechanically. It is not true to say that there was no evidence to show that there was any conspiracy to commit the murder of J.Dey. It is not true to say that as J.Dey was my friend I had mechanically issued the sanction order. (The HP laptop (Article­292) be kept in a sealed condition.).” 236

309. From the above, it is clear that when PW.149­CP Arup Patnaik admitted the contents of his statements made in the press conference which was held on 27/06/2011, his cross­examination on that point was stopped. No question was put to him suggesting that the confession of the accused no.5­Arun Dake was prepared in accordance with the statements made by him and the Joint Commissioner of Police in the said press conference. This itself shows the falsity of the stand taken by the defence. That apart, the statements made in a press conference have little value and cannot be treated as substantive evidence. At the most they may be used to contradict a witness in the Court. But that was also not done in this case.

310. Let's assume for a moment that the argument made by the learned Advocate for the accused nos.1,6 and 7 is correct. Then the question which arises for consideration is as why the Investigating Agency would prepare the confession of the accused no.5­Arun Dake only. Admittedly, at the relevant time, not only the accused no.5­Arun Dake but also the accused nos.1 to 4,6 and 7 were in Police custody. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya was the person who actually fired five bullets at J.Dey. He had a history of being involved in other serious cases. Had there been any ill­intention, then nothing prevented the Investigating Agency from preparing a tailor made confession in the name of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and also include the name of the accused no.12­Chhota Rajan in it to make its case full­ proof. Also, the Investigating Agency had an opportunity to prepare a confession in the names of the accused nos.2 to 4,6 and 7 also to further strengthen its case. But that was not done. Thus, it cannot be said that the confession made by the accused no.5­Arun Dake is a product of collusion between Investigating Agency and PW.122­DCP Dr. Mahesh Patil. 237

311. It may also be noted that the perusal of the confession made by the accused no.5­Arun Dake will show that he had signed the same in Marathi. However, in the several Miscellaneous applications which were filed by him and Vakalatnamas [For example application Exhs. 79, 110, 142, 189, 459, 471, 483, 484, 485, 559 and Vakalatnamas Exhs.142, 277] which were filed on his behalf before this Court at the stage of remand and also during the course of the trial he had signed those applications/ Vakalatnamas in English. The only inference which can be drawn from the signatures made by him in English on the various applications filed by him and on the vakalatnamas which were filed on his behalf is that he was signing the same in English consciously to create as picture that he could not sign in Marathi. But unfortunately, he has failed in that attempt.

312. It may also be noted that when the accused no.5­Arun Dake was produced before the learned Chief Metropolitan Magistrate, Esplanade on 18/07/2011, while retracting the confession he made a statement that the confession Part­1 & 2 do not bear his signature. However, on the same day, when he was produced before the MCOC Court, he stated that he was forced to sign on the confession Part­1 & 2. Considering the self­ contradictory stand taken by the accused no.5­Arun Dake before two Court on the same day, it is quite clear that he was speaking lies and the only conclusion which can be drawn is that the confession Part­1 & 2 bear his signature and the same were made by him voluntarily.

RETRACTION OF CONFESSION BY THE ACCUSED NO.5­ARUN DAKE. 313. As per the defence, the confession made by the accused no.5­Arun Dake needs to be discarded as the accused no.5­Arun Dake had retracted the same immediately on being produced before the learned Chief 238

Metropolitan Magistrate, Esplanade on the ground that it was not recorded as per his narration, it was not read over to him, the confession did not bear his signatures, he did not know its contents and that the Police assaulted him and threatened him that they would ill­treat his family.

314. Confessions made are usually retracted. As a matter of practical knowledge it can be said that non­retracted confession is a rarity in criminal cases. To retract from confession is the right of the confessor. However, it does not mean that the confession so made should be discarded just because it is retracted later on. It is the duty of the Court to evaluate the evidence regarding the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to discard the confession and a retracted confession can form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. In this regard, the learned SPP has rightly relied upon the judgment in the case of State of Tamil Nadu V. Kutty @ Lakshmi Narsimhan reported in AIR 2011 SC 2778.

315. In so far as the present case is concerned, the prosecution has already proved that the confession (Exh.1162, 1162­A,1162­B) made by the accused no.5­Arun Dake was voluntary and truthful. Therefore, onus now shifts upon the accused no.5­Arun Dake to show that the confession (Exh.1162, 1162­A,1162­B) was not voluntary and truthful. In this regard, it is necessary to note that during the cross­examination of PW.105­PSI Suhas Naik a suggestion was given to him on behalf of the accused no.5­ 239

Arun Dake that he was never produced before the Court of the learned Chief Metropolitan Magistrate, Esplanade. This suggestion was denied. Now, if the case of the accused no.5­Arun Dake that he was not produced before the Court of the learned Chief Metropolitan Magistrate, Esplanade on 18/07/2011 is to be accepted then he has not explained as to how he made the retraction before the said Court on 18/07/2011.

316. The stand of the accused no.5­Arun Dake is that he was assaulted and tortured. But, the accused no.5­Arun Dake has not given the exact date on which he was assaulted and by whom he was assaulted. Similarly, he has not even stated which Police Officer had threatened to ill­treat his family and when exactly such threat was given. If the allegations were true, then the accused no.5­Arun Dake ought to have given the details about the same. Further, it has already been discussed in detail above as to how the stand taken by the accused no.5­Arun Dake that he was assaulted and tortured is nothing but an afterthought. It is not necessary to discuss the same again.

317. The hollowness of the retraction made by the accused no.5­Arun Dake is further apparent from the fact that when he was produced before the learned Chief Metropolitan Magistrate, Esplanade he claimed that the confession did not bear his signature. But, on the same day when he was produced before the MCOC Court, he claimed that his signatures were forcibly taken on the confession. The self­contradictory stand taken by the accused no.5­Arun Dake is sufficient to infer that the retraction is nothing but an afterthought.

318. Relying upon the judgment in the case of Aloke Nath Dutta and ors. V. State of West Bengal reported in (2007) 12 SCC 230, the 240 learned Advocate for the accused nos.3 and 4 contended that as the confession made by the accused no.5­Arun Dake was retracted, the same cannot be used unless the Court is satisfied that the confession was true, voluntary and corroborated on material points. This Court has gone through the above judgment. There can be no dispute regarding the proposition of law as stated in that judgment. However, in so far as the facts of the present case are concerned, it is very much clear that the confession made by the accused no.5­Arun Dake was voluntary and truthful. PW.122­DCP Dr. Mahesh Patil had taken all the precautions which are necessary under the MCOC Act, 1999 and the MCOC Rules, 1999 while recording the confessions made by the accused no.5­Arun Dake. In view of the provisions of section 18 of the MCOC Act,1999, the said confession is a substantive evidence even against the co­accused who are charged and tried together with the maker of the confession. In so far as the retraction of the confession made by the accused no.5­Arun Dake is concerned, as stated earlier, it is nothing but an afterthought. Hence, the confession made by the accused no.5­Arun Dake can be used against the co­accused even without corroboration and the judgment in the case of Aloke Nath Dutta (supra) will not help the accused nos.3 and 4.

319. The learned Advocate for accused no.5 relied upon the judgment in the case of Parmananda Pegu V. State of Assam reported in (2004) 7 SCC 779 and submitted that as the confession made by the accused no.5­ Arun Dake was retracted the same cannot be used unless it is proved by the prosecution that all the necessary statutory precautions were taken by PW.122­DCP Dr. Mahesh Patil before the confession was recorded. This Court has gone through the above mentioned judgment. The said judgment relates to a confession recorded u/s.164 of Cr.P.C.,1973 and not under the provisions of the MCOC Act, 1999. In view of the judgment in 241 the case of S.N. Dube (supra), PW.122­DCP Dr.Mahesh Patil was required to take the precautions contemplated under the MCOC Act, 1999 and the MCOC Rules, 1999. The prosecution has already proved that he had taken the necessary precautions. Therefore, the judgment in the case of Parmananda Pegu (supra) is of no use to the case of the accused no.5­ Arun Dake.

320. The learned Advocate for the accused nos.1,6 and 7 relied upon the judgment in the case of Arup Bhuyan V. State of Assam reported in AIR 2011 SC 957 to contend that a confession is a very weak kind of evidence and are usually obtained by the Police by use of third degree methods and that the Courts should be hesitant to act upon it without corroboration. The said judgment is not applicable to the present case. Under the MCOC Act,1999 a confession is a substantive piece of evidence not only against the maker of the same but also against the co­accused who is charged and tried together with the maker of the confession. Further, the prosecution has already proved that the confession made by the accused no.5­Arun Dake was voluntary and truthful and the same was recorded by PW.122­ DCP Dr.Mahesh Patil who was totally unconnected with the investigation of this case.

321. From the above, it is clear that the confession made by the accused no.5­Arun Dake was voluntary and truthful. At the same time, it is also clear that the retraction of the same was nothing but an afterthought. Therefore, the said retraction is required to be ignored.

CONFESSION MADE BY THE ACCUSED NO.9­DEEPAK SISODIYA. 322. As per the prosecution, the accused no.9­Deepak Sisodiya was arrested on 17/07/2011 and on 02/08/2011 and 03/08/2011, he made 242 the confession before PW.124­DCP Dr. Cherring Dorje. The gist of the confession made by the accused no.9­Deepak Sisodiya is as follows:

In July 1993, a case of kidnapping was registered against him at Haldvani and he used to attend the Court for that matter.

In the year 1999, he had an altercation with one Devendra Singh. During that incident, Devendra Singh had fired three bullets on his right leg from a firearm. To save himself he jumped from a height of 150 meters. After the incident he was admitted in a hospital. As he had received severe injury on his right leg, it was amputated. When he was in the Sobansigh Jina hospital, the Police came to arrest him as there was an allegation against him that he tried to commit murder of Devendra Singh by using firearm. He also lodged an FIR against Devendra Singh.

In the year 1999, some members of the gang of the accused no.12­Chhota Rajan had committed a murder and in that case, the Police had arrested one Raju Rawat, Shekhar Uprati, Sukhwinder Singh @ Sukha, Sheriram who was the brother of Danny Nepali, Premram who was the brother­in­law of Danny Nepali and they were the members of the gang of accused no.12­Chhota Rajan. They were also being produced in the Court at Haldvani. On the dates of their case, Danny Nepali, Nainsingh Bista (wanted accused no.1) and Bunty Pande used to come to the Court to meet them. Therefore, he also came in contact with them. Danny Nepali introduced him to Farid Tanasha who was residing at Mumbai. Farid Tanasha used to speak to him on mobile phone.

In the year 2001, Farid Tanasha contacted him and told him that the relations between the accused no.12­Chhota Rajan with Bunty Pandey (gang member) were not cordial. Farid Tanasha also made the accused no.9­Deepak Sisodiya listen a recorded conversation between Bunty Pandey and one Sanjay Jat. From the recorded conversation he gathered that Devendra Singh had given money to Bunty Pandey for committing his murder. 243

In the year 2002, Police arrested Devendra Singh in connection with the firing incident which had taken place in the year 1999. Devendra Singh was lodged in the jail for six months and after he was released, both of them settled their dispute.

In October 2002, the Police raided his house and seized ten thousand bottles of liquor. But before the Police entered his house, he escaped from the back door. In this connection, his father was arrested. He obtained anticipatory bail.

In October 2006, the State Government revoked the license of his father for running sand quarry. Therefore, he started that business on his own. At that time, the wanted accused no.1­ Nayansingh Bista worked as his bodyguard for about two months.

In February 2007, his sand quarry license was suspended by the District Collector as a result of which he closed down his business.

In April 2007, he came in contact with one Sahil through Danny Nepali. He was informed by Danny Nepali that Sahil was a special man (Khas aadmi) of the accused no.12­Chhota Rajan. In due course of time, the accused no.9­Deepak Sisodiya and Sahil became close friends. Sahil used to contact him on his mobile phone.

In the year 2009, Sahil stayed in the house of the accused no.9­ Deepak Sisodiya at Haldvani for four days. At that time, when he told Sahil that he had many enemies at Haldvani, Sahil told him that he will brief the accused no.12­Chhota Rajan about it.

In September 2010, he again got the license of sand quarry from the Government. During that period, the accused no.12­Chhota Rajan contacted him on his phone and at that time, he told the accused no.12­Chhota Rajan about the contract received by him. He also told the accused no.12­Chhota Rajan that he wanted a bodyguard and on that the accused no.12­Chhota Rajan 244 promised to send a daring bodyguard for him. After some days, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya came to his house and told him that the accused no.12­Chhota Rajan had sent him. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya told him that the accused no.12­Chhota Rajan had sent him for working as his bodyguard. At that time, the accused no.12­Chhota Rajan called him on his phone and asked him about the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. He told the accused no.12­Chhota Rajan that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was with him and then gave his phone to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya to enable him to talk to the accused no.12­Chhota Rajan.

The accused no.1­Rohee Tangappan Joseph @ Satish Kalya worked as his bodyguard for about three days. Thereafter, he did not continue the services of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya as the Government had banned the activity of sand mining. Accordingly, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya left the job but he used to be in contact with the accused no.9­Deepak Sisodiya on phone.

On 12/05/2011, at about 12:00 in the afternoon, the wanted accused no.1­Nayansingh Bista came to his house with a briefcase and asked him whether he had some talk with Sahil. When he told the wanted accused no.1­Nayansingh Bista that he did not have any talk with Sahil, the wanted accused no.1­ Nayansingh Bista made a phone call to Sahil from his mobile phone and told him to talk to him (accused no.9­Deepak Sisodiya). Sahil told him on phone of the wanted accused no.1­ Nayansingh Bista that one of his man wanted 25 cartridges of revolver and told the wanted accused no.1­Nayansingh Bista to arrange for the same.

He immediately contacted Shri Sanjay Singh Bansal who was the owner of Anurag Gun house at Bajpur and told him that he wanted 25 cartridges of revolver. Accordingly, he was told to come after two days. 245

After two days i.e. on 14/05/2011, at about 11:30 am he went to that shop alongwith the wanted accused no.1­Nayansingh Bista reached the said shop and he requested Shri Sanjaysingh Bansal to give 25 cartridges of revolver. When, Shri Sanjaysingh Bansal asked him whether there was any problem (Lafde wali baat), the accused no.9­Deepak Sisodiya told him that he wanted 25 cartridges. On that, Shri Sanjaysingh Bansal gave him a packet containing 25 cartridges.

After returning to his house at Haldvani, when he asked the wanted accused no.1­Nayansingh Bista as to for whom the cartridges were required, he told him one person known to Sahil was going to contact him on mobile phone and thereafter they would meet that person.

At about 08:00 pm, the wanted accused no.1­Nayansingh Bista received a phone call on his mobile phone and he promised the caller that he will meet him at the Katgodam Railway station at 09:30 pm.

At about 09:00 pm, he alongwith the wanted accused no.1­ Nayansingh Bista started for the Katgodam Railway Station in a Scorpio vehicle. At that time, the wanted accused no.1­ Nayansingh Bista took out one plastic carry bag from his briefcase and kept it with him. At that time, he (accused no.9­ Deepak Sisodiya) was driving the Scorpio vehicle.

As soon as both of them sat in the Scorpio vehicle, the wanted accused no.1­Nayansingh Bista kept the plastic carry bag under the seat of the vehicle. On being asked by him, the wanted accused no.1­Nayansingh Bista told him that there were two revolvers in the plastic carry bag.

At about 09:30 pm, they reached at a place outside the Katgodam Railway station and at that place, he saw that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was standing there. 246

The wanted accused no.1­Nayansingh Bista gave the plastic carry bag and the packet containing the 25 cartridges to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya.

Thereafter, he and the wanted accused no.1­Nayansingh Bista returned to his house at Haldvani at about 10:30 pm. At about 11:30 pm the wanted accused no.1­Nayansingh Bista told him that he was going to Nepal and accordingly he went away. The wanted accused no.1­Nayansingh Bista contacted him every day from 23/06/2011 to 26/06/2011.

On 27/06/2011, at about 02:30 pm in the afternoon, Sahil informed him on phone that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was arrested by Mumbai Crime Branch in a murder case and told him to switch off his mobile phone and that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya had used the 25 cartridges given to him for the murder.

He stated that he saw the news regarding the murder of J.Dey on TV and that seven persons belonging to the gang of the accused no.12­Chhota Rajan were arrested. When one of them removed the veil he identified that person to be the accused no.1­Rohee Tangappan Joseph @ Satish Kalya who had worked as his bodyguard and to whom wanted accused no.1­Nayansingh Bista had given two revolvers and 25 cartridges on 14/07/2011. On the same day, he went to Balaji, Ajmer Sharif, Haridwar and Meerut alongwith his friends in his Scorpio vehicle.

On 17/07/2011, at 02:00 pm, he was caught by the Police near the bypass bridge at Katgodam Square and was produced before the local Court on the next day. On the day thereafter, he was taken to Mumbai.

ASSESSMENT OF THE STATEMENT MADE BY THE ACCUSED NO.9­ DEEPAK SISODIYA. 323. The question which arises for consideration is whether the 247 statement made by the accused no.9­Deepak Sisodiya amounts to a confession or not. The statements made by the accused no.9­Deepak Sisodiya will have to be considered in the light of the charges framed against him. The statements made by him show that he was not actually connected with the offence of murder of J.Dey. But at the same time, it is revealed from his statements that he had criminal antecedents. He was knowing the accused no.12­Chhota Rajan rather well and since long. He was also knowing the accused no.1­Rohee Tangappan Joseph @ Satish Kalya who was also an associate of the accused no.12­Chhota Rajan. In his presence, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya had spoken to the accused no.12­Chhota Rajan on phone. He arranged for 25 cartridges and then along with the wanted accused no.1­Nayansingh Bista gave those cartridges and two revolvers which were arranged by the wanted accused no.1­Nayasingh Bista to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. The said cartridges and one of the revolvers was used for committing the murder of J.Dey. If the statements made by the accused no.9­Deepak Sisodiya are considered in the light of the charges framed against him then it can be said that he is liable for being punished u/s.120­B of the IPC, for the offence of abetment as defined u/s.2(1)(a) of the MCOC Act,1999 r/w section 107 and 108 of the IPC and for being member of the Organized Crime Syndicate provided it is proved that the confession made by him was voluntary and truthful.

EVIDENCE REGARDING THE VOLUNTARY NATURE AND TRUTHFULNESS OF THE CONFESSION MADE BY THE ACCUSED NO.9­ DEEPAK SISODIYA. 324. In order to prove that the confession made by the accused no.9­ Deepak Sisodiya was voluntary and truthful, the prosecution has relied upon the evidence of PW.103­API Dewoolkar, PW.106­API Vijay Shinde 248 and PW.124­DCP Chhering Dorje.

325. The evidence of PW.103­API Shri Dewoolkar is already discussed earlier while dealing with the confession made by the accused no.5­Arun Dake. Hence, it is not being reproduced again to avoid repetition.

326. PW.106­API Vijay Shinde was attached to the Police Station, Azad Maidan at the relevant time. He deposed that on 02/08/2011 when he was on duty, Senior PI Shri Mane told him to go to the Office of PW.124­ DCP Dr. Cherring Dorje for taking custody of accused no.9­Deepak Sisodiya and to get him medically examined. He deposed that he was also instructed to keep him in a separate room in the General lock­up of the Police Station, Azad Maidan. He deposed that two ammaldars from the same Police Station were also deputed along with him for the said work. He deposed that all the three of them went to the Office of PW.124­DCP Dr. Cherring Dorje where the custody of accused no.9­Deepak Sisodiya was given to him by PW.124­DCP Dr. Cherring Dorje and he was directed to produce him in his Office on the next day in a veil. He deposed that he was also instructed to keep the accused no.9­Deepak Sisodiya in a separate lock­up and that nobody should be permitted to meet him. He deposed that thereafter he took the accused no.9­Deepak Sisodiya to the J.J. Hospital for his medical examination and from there he took the accused no.9­Deepak Sisodiya to the Police Station, Azad Maidan and first reported to the Senior PI. He deposed that thereafter, he made an entry in the lock­up register and then lodged the accused no.9­Deepak Sisodiya in a separate room. He deposed that one Officer was deputed for guarding the accused no.9­Deepak Sisodiya and he was instructed not to permit anybody to meet the accused no.9­Deepak Sisodiya. 249

327. PW.106­API Vijay Shinde further deposed that on 03/08/2011, in the evening he took the accused no.9­Deepak Sisodiya to the Office of PW.124­DCP Dr. Cherring Dorje in a Government vehicle along with the two ammaldars who were deputed for the work and handed over the custody of the accused no.9­Deepak Sisodiya to him. He deposed that after some time accused no.9­Deepak Sisodiya was brought outside and his custody was again given to him. He deposed that he was also given two sealed envelopes. He deposed that from there all of them went to the G.T. Hospital where the accused no.9­Deepak Sisodiya was got medically examined and from there they returned to the Police Station, Azad Maidan along with accused no.9­Deepak Sisodiya. He deposed that after returning to the Police Station he kept the two sealed envelopes in the locker of the Police Station and the accused no.9­Deepak Sisodiya was again lodged in a separate room in the Police Station, Azad Maidan.

328. PW.106­API Vijay Shinde deposed that on 04/08/2011, he took the accused no.9­Deepak Sisodiya to the Court of the learned Chief Metropolitan Magistrate along with the two ammaldars who were deputed for the said work. He deposed that he produced the accused no.9­Deepak Sisodiya before the said Court and also gave the two sealed envelopes to the Court. He deposed that himself and the two ammaldars were then directed to go outside the Court room and accordingly, they went outside and waited there. He deposed that after some time, they were called inside the Court room and then the custody of accused no.9­Deepak Sisodiya was again given to him. He deposed that thereafter the accused no.9­Deepak Sisodiya was got medically examined in the J.J. Hospital and then from there all of them went to the Office of the Deputy Commissioner of Police (Detection) in a Government vehicle and he produced accused no.9­Deepak Sisodiya in that office. He deposed that he then handed over 250 the custody of accused no.9­Deepak Sisodiya to the Deputy Commissioner of Police (Detention) along with his medical papers and all other papers and thereafter, he returned to the Police Station, Azad Maidan along with the two ammaldars. He deposed that after returning to the Police Station the necessary entries were made in the police station diary about the events which had taken place. He identified the relevant station diary entries (Exh.896 colly., Exh.897 colly. and Exh.898 colly.) of the proceedings from 02/08/2011 to 04/08/2011.

329. In cross­examination on behalf of accused nos.1,6 and 7, he stated that the persons charged of committing crime of nearby Police Stations were also lodged in the Police Station, Azad Maidan. He stated that he did not know as to how many lock­ups were there in the Police Station, Azad Maidan. He stated that whenever an accused was taken out of the lock­up and whenever he was again lodged in the lock­up an entry to that effect was always made in the lock­up register. He stated that he did not mention the cell (room) number in which the accused no.9­Deepak Sisodiya was lodged on 02/08/2011, 03/08/2011 and 04/08/2011 as the cells (rooms) were not given any numbers. He stated that no person was lodged in that cell (room) prior to lodging of the accused no.9­Deepak Sisodiya. He admitted that one was required to make an entry in the register for going inside the cell (room). He admitted that there was no such entry in the station diary that he had visited the cell (room) or that he had seen the accused no.9­Deepak Sisodiya in the cell (room). He stated that there was no such practice. He stated that the lock­ups of Police Station, Azad Maidan were always packed. He stated that the accused no.9­Deepak Sisodiya was taken out of the General lock­up on 04/08/2011. He admitted that on 04/08/2011, after the proceedings were completed the custody of accused no.9­Deepak Sisodiya was given to the 251

Office of DCB CID, Unit no.1.

330. He admitted that on 03/08/2011 and 04/08/2011 also the accused no.9­Deepak Sisodiya was taken out of the General lock­up. He stated that he did not make any entry in his pocket diary regarding the work done by him between 02/08/2011 to 04/08/2011. He stated that he had produced the accused no.9­Deepak Sisodiya in the Court of the learned Chief Metropolitan Magistrate on 04/08/2011 between 10:00 am to 11:00 am. He stated that after producing the accused no.9­Deepak Sisodiya in the said Court he waited outside for about 3­4 hours and thereafter, the custody of accused no.9­Deepak Sisodiya was again handed over to him. He admitted that the Police Station, Azad Maidan was within the jurisdiction of that Court and he had taken the accused no.9­Deepak Sisodiya to that Court. He stated that he did not prepare the panchanama of the documents given by him to PW.143­ACP Duraphe. He denied that the custody of accused no.9­Deepak Sisodiya was never given to him. He denied that he had prepared a false record of station diary entries and medical papers. He stated that the accused no.9­Deepak Sisodiya was not handicapped in any manner.

331. PW.124­DCP Dr. Cherring Dorje had recorded the confession made by the accused no.9­Deepak Sisodiya. He deposed that vide letter dated 01/08/2011 (Article X­202) issued by the Joint Commissioner of Police (Crime) he was directed to record the confession of the accused no.9­ Deepak Sisodiya. He deposed that by the said letter he was also informed that the accused no.9­Deepak Sisodiya was arrested in connection with this case, that he had volunteered to make the confession, that the case was being investigated by PW.143­ACP Duraphe and that the Police custody of the accused no.9­Deepak Sisodiya was till 06/08/2011. He 252 deposed that on receipt of the letter dated 01/08/2011, he issued the letter (Exh.1212) to PW.143­ACP Duraphe on 02/08/2011 directing him to produce the accused no.9­Deepak Sisodiya before him on the same day (on 02/08/2011) by 02:00 pm for recording his confession and accordingly, the accused no.9­Deepak Sisodiya was produced before him in a veil by PW.103­API Dewoolkar along with the letter (Exh.1213) issued by PW.143­ACP Duraphe and his medical report. He deposed that after the accused no.9­Deepak Sisodiya was brought inside his chamber his veil was removed. He deposed that thereafter, PW.103­API Dewoolkar briefed him about the case and informed him that accused no.9­Deepak Sisodiya was arrested on 27/07/2011 and his Police custody was till 06/08/2011.

332. PW.124­DCP Dr. Cherring Dorje deposed that after the identification of the accused no.9­Deepak Sisodiya and after perusal of his medical report he took the accused no.9­Deepak Sisodiya in his custody and then directed PW.103­API Dewoolkar to go outside his chamber. He deposed that after ensuring that nobody else was there he had a brief conversation with the accused no.9­Deepak Sisodiya to ascertain in what language he was comfortable and whether he was sick or unwell. He deposed that thereafter, he called his stenographer inside his chamber. He deposed that he made sure that their conversation or the proceeding were not heard or seen by anyone. He deposed that on being asked by him, the accused no.9­ Deepak Sisodiya told him that he was comfortable in Hindi language as he had studied in Hindi medium. He deposed that he introduced himself to the accused no.9­Deepak Sisodiya and told him that he was not related in any manner with the Crime Branch and that he was now in his custody.

333. PW.124­DCP Dr. Cherring Dorje deposed that for making the 253 accused no.9­Deepak Sisodiya comfortable he again asked him about his name, address and educational qualifications. He deposed that the answers given by the accused no.9­Deepak Sisodiya were being recorded simultaneously by his stenographer on a computer. He deposed that on being asked by him, the accused no.9­Deepak Sisodiya told him that he was brought before him as he wanted to make a confession and that he was not intimidated or tortured nor did he have any complaint against the Officers of the Crime Branch. He deposed that he then informed the accused no.9­Deepak Sisodiya that he was not bound to make the statement and that if he did so it may be used as evidence against him. He deposed that thereafter, on being specifically asked by him, the accused no.9­Deepak Sisodiya stated that he was neither coerced nor intimidated nor induced nor pressurized nor any false assurance was given to him by any Officer of the Crime Branch. He deposed that thereafter, when he again informed the accused no.9­Deepak Sisodiya that he was not bound to make the statement and that if he did so it may be used as evidence against him, the accused no.9­Deepak Sisodiya told him that he was aware about that.

334. PW.124­DCP Dr. Cherring Dorje deposed that he then gave more than 24 hours time to the accused no.9­Deepak Sisodiya to think over his decision to make the confession and informed him that during that period he would be under his custody and that he would be lodged in the Police Station, Azad Maidan and not with the Crime Branch. He deposed that he then read over the questions put by him to the accused no.9­Deepak Sisodiya and the answers given by him. He deposed that after getting confirmation about the correctness of the same from the accused no.9­ Deepak Sisodiya, he took the printout of confession Part­1 (Exh.1214) and then after going through the same, the accused no.9­Deepak Sisodiya 254 signed it. He deposed that he also counter­signed the same. He deposed that he then took a xerox copy of confession Part­1 (Exh.1214), sealed the original record and kept the original and the xerox copy in his custody. He deposed that the proceedings of recording of confession Part­1 (Exh.1214) started at about 02:15 pm and ended at 03:30 pm. He deposed that after the proceedings were completed he orally informed the accused no.9­ Deepak Sisodiya that he would be produced before him on 03/08/2011 at 05:00 pm and then the custody of the accused no.9­Deepak Sisodiya was handed over to PW.106­API Shinde with a direction to lodge him in a separate room and to get him medically examined. He deposed that he also directed PW.106­API Shinde to ensure that nobody from the Crime Branch or any other Officer met the accused no.9­Deepak Sisodiya in the lock­up without his permission and to produce the accused no.9­Deepak Sisodiya before him on 03/08/2011 at 05:00 pm. He deposed that he also directed PW.106­API Shinde to take the accused no.9­Deepak Sisodiya to the Police Station,Azad Maidan in proper escort.

335. PW.124­DCP Dr. Cherring Dorje deposed that he then sent the letter (Article X­203) to Senior PI, Police Station, Azad Maidan through PW.106­ API Shinde informing him that the accused no.9­Deepak Sisodiya was being kept in the lock­up in Police Station, Azad Maidan, that nobody should be permitted to meet him without his permission, that he should be produced before him on 03/08/2011 at 05:30 pm in proper escort and in a veil. He deposed that after issuing the said letter and once PW.106­API Shinde had left with the accused no.9­Deepak Sisodiya to Police Station, Azad Maidan he repeated the same instructions by telephoning him. He deposed that on the same day, late in the evening he again phoned the Senior PI, Police Station, Azad Maidan for ascertaining whether the accused no.9­Deepak Sisodiya was kept in a separate lock­up and whether 255 his medical examination was conducted after he was taken by PW.106­API Shinde from his office. He deposed that he also reminded the Senior PI, Police Station, Azad Maidan about the instructions given by him earlier vide letter (Article­X­203).

336. PW.124­DCP Dr. Cherring Dorje deposed that on 03/08/2011, the accused no.9­Deepak Sisodiya was produced before him by PW.106­API Shinde at around 06:40 pm in a veil along with his two medical reports dated 02/08/2011 and 03/08/2011. He deposed that he perused the medical reports of the accused no.9­Deepak Sisodiya and then directed PW.106­API Shinde to leave his chamber. He deposed that he then called his stenographer to record the proceedings. He deposed that he asked the accused no.9­Deepak Sisodiya whether he faced any problem in the Police Station, Azad Maidan or whether he had any complaint, whether the time given to him was sufficient or whether he wanted more time to think over. He deposed that the accused no.9­Deepak Sisodiya told him that sufficient time was given to him and that he did not require any more time. He deposed that he again told the accused no.9­Deepak Sisodiya that he was not bound to make any statement and that if he did so it may be used as evidence against him in the Court. He deposed that on being asked by him, the accused no.9­Deepak Sisodiya told him that he was neither coerced nor intimidated nor pressurized nor any kind of allurement or false promise pertaining to this case to give confession was given to him. He deposed that when he specifically asked the accused no.9­Deepak Sisodiya as to why he wanted to make the confession, he replied that he was repenting for his deeds and he wanted to speak the truth. He deposed that when he again told the accused no.9­Deepak Sisodiya that he was not bound to make the statement and that if he did so it may be used as evidence against him, the accused no.9­Deepak Sisodiya replied that he 256 was aware about it.

337. PW.124­DCP Dr. Cherring Dorje deposed that once he was convinced that the accused no.9­Deepak Sisodiya wanted to make the confession voluntarily, he recorded his satisfaction in writing and then he started recording the confession Part­2 (Exh.1217). He then deposed about what the accused no.9­Deepak Sisodiya had stated before him. The gist of the same is already reproduced earlier. Hence, it is not being repeated.

338. He deposed that whatever was stated by the accused no.9­Deepak Sisodiya was read over to him from the computer and after the accused no.9­Deepak Sisodiya acknowledged its correctness, he prepared a memorandum as per the provisions of MCOC Act,1999. He deposed that the printout was taken, the same was placed before the accused no.9­ Deepak Sisodiya who signed it after going through the same and then he also counter­signed the same. He deposed that he then took a xerox copy of the same, kept the original statement in an envelope, sealed it and kept the xerox copy of the same in his personal custody. He deposed that the proceedings of confession Part­2 (Exh.1217) were started at about 06:45 pm and it ended at about 09:45 pm He deposed that as the Court of the learned Chief Metropolitan Magistrate was in the same building in which the Police Station, Azad Maidan was situated he got it confirmed from the Police Station, Azad Maidan whether the Court was open or not as it was late. He deposed that after coming to know that the Court was closed, he issued a letter to the Court of learned Chief Metropolitan Magistrate informing the said Court that the accused no.9­Deepak Sisodiya was produced before him for recording confession, that confession Part­1 was recorded on 02/08/2011, that he was given more than 24 hours time to 257 reflect and then confession Part­2 was recorded on 03/08/2011. He deposed that he also informed that as the Court time was over he could not be produced before the Court on the same day and that he would be produced before the Court on 04/08/2011 in the morning.

339. PW.124­DCP Dr. Cherring Dorje deposed that he also issued a letter to the Senior PI, Police Station, Azad Maidan directing him to lodge the accused no.9­Deepak Sisodiya in a separate cell in the Police Station, Azad Maidan and that no one from the Crime Branch or any other Officer or any other person should be permitted to meet him without his permission. He deposed that by the said letter, he also informed the Senior PI, Police Station, Azad Maidan that he was sending two sealed envelopes meant for the Court of the learned Chief Metropolitan Magistrate with PW.106­API Shinde and that those envelopes should be kept in a safe custody and that the accused no.9­Deepak Sisodiya should be produced before the said Court on 04/08/2011 at 10:30 am after his medical examination under proper escort and in a veil. He deposed that he had also issued a letter to PW.143­ACP Duraphe stating that the custody of the accused no.9­Deepak Sisodiya would be handed over to him on 04/08/2011 for the reasons stated earlier. He deposed that he had handed over the custody of the accused no.9­Deepak Sisodiya along with the three letters and two sealed envelopes to PW.106­API Shinde. He deposed that he also briefed PW.106­API Shinde to take the accused no.9­Deepak Sisodiya in proper escort and in a veil. He deposed that he had also directed that after all the formalities were completed the custody of the accused no.9­Deepak Sisodiya be handed over to PW.143­ACP Duraphe. He deposed that he then phoned the Senior PI Police Station, Azad Maidan and gave him the some instructions which are mentioned above. 258

340. PW.124­DCP Dr. Cherring Dorje deposed that on 09/08/2011 when he had received a letter from PW.143­ACP Duraphe requesting him to furnish a copy of the confession made by the accused no.9­Deepak Sisodiya he prepared a xerox copy from the xerox copy which he had prepared earlier and furnished the same to PW.143­ACP Duraphe.

341. In cross­examination on behalf of the accused nos.1,6 and 7, he denied that PW.143­ACP Duraphe did not collect any document from him relating to this case. At the same time, he stated that PW.143­ACP Duraphe did not issue any requisition to him regarding any document. He admitted that in the letter (Exh.1212) it was not mentioned that the accused no.9­Deepak Sisodiya should be produced before him in a veil. He stated that the accused no.9­Deepak Sisodiya was produced before him in view of orders issued by Joint Commissioner of Police. He denied that the letter (Exh.1212) was a ready­made letter and he was deposing accordingly about that letter.

342. He stated that he did not know whether the Office of Crime Branch, Unit no.1 and the Office of Crime Branch, D­1 (South) were separate Offices. He admitted that from the letter (Exh.1213) it could not be gathered at what time the accused no.9­Deepak Sisodiya was taken in his custody. He denied that the letter (Exh.1213) was a tampered and manipulated document.

343. He admitted that prior to taking the custody of the accused no.9­ Deepak Sisodiya, he did not know about his personal details except the details which were mentioned in the letter issued by the Joint Commissioner of Police. He denied that he came to know about the brief facts of the case even before PW.103­API Dewoolkar met him. He stated 259 that during the period from 22/07/2011 to 06/08/2011, he did not ask any Officer whether any article was seized from the accused no.9­Deepak Sisodiya, how many Police Officers had interrogated him and what was his medical condition.

344. He denied that at the relevant time, the Office of the Unit no.1 was under the jurisdiction of the DCP, Zone­1. He stated that though he was aware about the murder of J.Dey he was not aware about the date of the murder. He admitted that several agitations were taken out for arresting the culprits. He stated that he did not know whether a special investigating team was created under the Joint Commissioner of Police for investigating into this case. He stated that he did not know whether all the Deputy Commissioners of Police were a part of that team. He voluntarily stated that he was not a part of that team. He denied that being the Deputy Commissioner of Police, Zone­1 he was getting inputs about this case.

345. He denied that after recording the confession Part­1, only the questions were read over to the accused no.9­Deepak Sisodiya and not the answers given by him. He stated that he could not assign any reason as to why it was not mentioned in the confession Part­1 that even the answers were read over to the accused no.9­Deepak Sisodiya. He stated that no separate information was given to the accused no.9­Deepak Sisodiya in writing as the record of confession Part­1 was itself given to the accused no.9­Deepak Sisodiya for reading. He stated that in the confession Part­1 it was not specifically recorded by the accused no.9­Deepak Sisodiya that the contents of the same were true and correct.

346. He stated that he did not inform the Senior PI, Police Station, Azad 260

Maidan to send for escort for taking the custody of the accused no.9­ Deepak Sisodiya. He admitted that he had called PW.106­API Shinde and the staff of the Police Station, Azad Maidan for taking the custody of the accused no.9­Deepak Sisodiya. He clarified that he had called for PW.106­ API Shinde through Senior PI, Police Station, Azad Maidan and that he was not knowing as to which Officer was going to come for taking the custody of the accused no.9­Deepak Sisodiya. He stated that the sentence, 'I called API Vijay P. Shinde and staff of Azad maidan police station' (page no.4 of the confession Part­1) meant that he had called PW.106­API Shinde and the staff of Police Station, Azad Maidan when they were standing outside his chamber. He denied that he gave the explanation to fill­up the lacuna.

347. He stated that he did not know in which lock­up the accused no.9­ Deepak Sisodiya was lodged before he was produced in his Office. He categorically stated that the accused no.9­Deepak Sisodiya was not lodged in the lock­up of the Police Station, Azad Maidan. He stated that prior to recording of the confession Part­1 (Exh.1214) he did not write any letter to Senior PI, Police Station, Azad Maidan. He denied that he started the recording of the confession Part­1 (Exh.1214) after he had issued the letter to Senior PI, Police Station, Azad Maidan. He stated that he could not assign any reason as to why it was not mentioned in the confession Part­1 (Exh.1214) that he had called his stenographer in his chamber though that fact was recorded in confession Part­2 (Exh.1217). He stated that he did not prepare any separate record for showing that he had recorded the confession Part­1 (Exh.1214) on 02/08/2011. He stated that he did not take any certificate from his stenographer about the drafting of the confession Part­1 (Exh.1214). He stated that in the confession, it was not mentioned that the contents of the same were read over to the 261 accused no.9­Deepak Sisodiya from the screen of the computer.

348. He stated that he did not remember the exact date on which he had received the letter from PW.143­ACP Duraphe calling for a copy of the confession. He stated that prior to taking the xerox copy of the confession Part­1 (Exh.1214) he was not aware that he would be required to furnish a copy of the same to anybody.

349. He denied that while recording confession Part­2 (Exh.1217), the accused no.9­Deepak Sisodiya had told him that he only wanted to make a statement and not a confession. He stated that he had recorded whatever the accused no.9­Deepak Sisodiya had told him and that he did not add anything on his own. He stated that he did not ask the accused no.9­ Deepak Sisodiya whether he wanted to take assistance of his friend or Advocate or relative.

350. He stated that he did not remember whether during the proceedings of confession Part­2 (Exh.1217), he had informed the accused no.9­ Deepak Sisodiya that the confession made by him can be used against the co­accused also. He stated that while recording the confession Part­2, he did not specifically ask the accused no.9­Deepak Sisodiya whether he was assaulted. He stated that he did not personally see the injury of the accused no.9­Deepak Sisodiya and that the accused no.9­Deepak Sisodiya had told him about the injury on his right leg. He stated that he neither personally examined the injury on the leg of the accused no.9­Deepak Sisodiya nor did he feel like referring the accused no.9­Deepak Sisodiya for medical examination. He stated that he felt that the medical condition of the accused no.9­Deepak Sisodiya was proper. He admitted that the accused no.9­Deepak Sisodiya had told him that his right leg was 262 amputated and he did not personally see the right leg of the accused no.9­ Deepak Sisodiya. He stated that he did not ask the accused no.9­Deepak Sisodiya on which date his leg was amputated. He voluntarily stated that the accused no.9­Deepak Sisodiya had told him that his right leg was amputated long ago because of an accident. He stated that there was no specific reason for not recording the above facts in confession Part­1 and Part­2.

351. He stated that the accused no.9­Deepak Sisodiya had told him that he completed education upto 9th standard in Hindi medium. He stated that he did not ask the accused no.9­Deepak Sisodiya whether he was knowing English. He stated that the accused no.9­Deepak Sisodiya did not read the portion of the confession Part­2 which was recorded in English and that the accused no.9­Deepak Sisodiya was made to understand the same. He stated that there was no record in writing to show that he had taken the xerox copy of the confession Part­1 and Part­2. He stated that he had informed the accused no.9­Deepak Sisodiya on 2­3 occasions that he was not bound to make the confession and if he did so it could be used against him as he wanted to ensure that the accused no.9­Deepak Sisodiya understood it was not obligatory for him to make the confession. He stated that below the certificate, the date and time at which the confession was recorded was required to be mentioned and that he did not mention the time below his signature in the confession Part­1 and Part­2. He stated that the contents of confession Part­2 were continuous narration of what the accused no.9­Deepak Sisodiya had stated before him. He admitted that after the confession Part­2 was recorded he did not take any certificate from his stenographer.

352. He stated that neither PW.103­API Dewoolkar nor PW.106­API 263

Shinde produced any report before him regarding compliance of the instructions given by him. He stated that he did not call for the station diary entry and the lock­up register with regard to the lodging of the accused no.9­Deepak Sisodiya in the Police Station, Azad Maidan. He stated that he had made oral enquiry in that regard with Senior PI, Police Station, Azad Maidan. He admitted that this fact was not mentioned in confession Part­2. He denied that on the say of the Joint Commissioner of Police a ready­made copy of the confession was provided to him and therefore, he did not have any documentary record with him. He denied that the accused no.9­Deepak Sisodiya did not make any confession before him.

353. In cross­examination on behalf of the accused no.2, he stated that being a Deputy Commissioner of Police, he was required to maintain the law and order in the City. He stated that the meetings in that regard were periodically conducted in the Office of the Commissioner of Police and in those meetings, the various measures to be taken were discussed and the guidelines in that regard were issued. He stated that generally important cases were also discussed in such meetings and the measures to be taken were also discussed. He stated that the present case was one of the important cases for him also from the point of view of law and order. He stated that after the murder of J.Dey, there were agitations and protests from the media. He stated that in the meetings there was reference to this case. He stated that before deposing in this case he had gone through the hard copy of the confession which was with him. He stated that while recording the confession of the accused no.9­Deepak Sisodiya, he did not see the hard copy of the other confession which was recorded by him in the earlier case. He stated that he could not say whether the questions put by him to the accused no.9­Deepak Sisodiya while recording confession 264

Part­1 and Part­2 were identical to the questions put by him to the accused in Special Case no.10 of 2010 which was pending in Court room no.55.

354. He stated that he was not directed to record the confession of the accused no.9­Deepak Sisodiya before 06/08/2011. To a general question put to him, he stated that he was aware that after an accused is arrested the Investigating Officer records the statement of that accused. He stated that he did not ask the accused no.9­Deepak Sisodiya whether he had any opportunity to meet the Joint Commissioner of Police. He stated that he did not make any enquiry with PW.143­ACP Duraphe in that regard. He stated that when he started the recording of the confession Part­2, he was not aware for how long the proceedings would continue. He stated that he was aware that depending upon the case, it generally took about 2 hours or more for recording confession Part­2. He stated that he did not ask the accused no.9­Deepak Sisodiya as to what was the stage of investigation and whether he was interrogated by the Police and who were the Officers who interrogated him. He stated that he did not make any special request for producing the accused no.9­Deepak Sisodiya on the same day before the Court of learned Chief Metropolitan Magistrate. He stated that the Senior PI, Police Station, Azad Maidan had informed him that the Court working hours were already over and he relied upon his statement.

355. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that he had a degree in MBBS. He admitted that the accused no.9­ Deepak Sisodiya had told him that he used to feel pain intermittently in his right leg. He denied that the accused no.9­Deepak Sisodiya was not in a position to make the confession as his medical condition was not proper. He denied that as a pressurizing tactic, the accused no.9­Deepak Sisodiya was not given any medical treatment or food. He denied that the accused 265 no.9­Deepak Sisodiya was not in a proper state of mind when his statement was recorded.

356. In cross­examination on behalf of the accused no.9, he stated that before joining as DCP, Zone­1 Mumbai on 07/06/2010 he did not have any occasion to work in the Crime Branch or any Unit of the Crime Branch. He stated that there were no fixed duty hours for him. He voluntarily stated that over and above the fixed duty hours they were required to be on duty depending upon the situation and the requirement. He admitted that the Police Officers were assigned duty in the day shift and in the night shift. He stated that in case of an emergency the Police Officer whose period of duty was over was also required to join the duty again. He stated that as on 01/08/2011, the monsoon session of the Maharashtra Legislative Assembly was going on and as the Vidhan Bhawan was within his jurisdiction he was on duty continuously. He admitted that during the monsoon session of the Legislative Assembly he was required to supervise the bandobast regularly.

357. He stated that on 02/08/2011, he reached his Office at around 10:00 am and he was in his Office till evening. He stated that on that day, he was required to leave his Office and check the bandobast. He stated that he had gone to check the bandobast twice. He stated that his Office did not maintain any movement register to show when he left his Office and when he returned to his office.

358. He stated that in the year 2010, he had recorded one confession under the MCOC Act,1999 and in the year 2011, prior to recording the confession in this case he had recorded two confessions under MCOC Act,1999. He stated that he did not know which sections were applied in 266 those cases but they were under the MCOC Act,1999. He stated that the name of the accused whose confession he had recorded in the year 2010 was Mohd. Sakib Shah Nawaz Alam Khan. He stated that he did not recollect the name of the other accused but he said that their names may be Raju Lakshman Jadhav and Bahadur. He stated that during that time, his Superior or any Officer of the Crime Branch did not provide him with the guidelines for recording the confessions.

359. He stated that before coming to the Court he had prepared himself for deposing. He denied that he had met an Officer and the learned SPP for preparing himself for deposing in the Court. He stated that as he could not retrieve some documents from the Office of the Zone­1 he had met the Officer and the learned SPP.

360. He stated that on 02/08/2011, the accused no.9­Deepak Sidodiya was brought to his Office for the first time at 02:00 pm. He stated that his stenographer had told him that the accused no.9­Deepak Sisodiya was brought to his Office by the Officers of the Crime Branch. He deposed that thereafter, when he called PW.103­API Dewoolkar to his chamber PW.103­API Dewoolkar told him that the confession of the accused no.9­ Deepak Sisodiya was to be recorded. He stated that on being asked by him, PW.103­API Dewoolkar told him that the accused no.9­Deepak Sisodiya was arrested on 27/07/2011 and his Police custody was till 06/08/2011. He stated that he did not ask PW.103­API Dewoolkar about the status of health of the accused no.9­Deepak Sisodiya. He stated that PW.103­API Dewoolkar did not tell him that the accused no.9­Deepak Sisodiya was physically challenged or that he was unwell. He stated that he did not ask PW.103­API Dewoolkar as to on how many occasions the Police custody of the accused no.9­Deepak Sisodiya was sought or which 267

Police Officer had arrested him, from which place he was arrested, at what time he was taken out of the lock­up and whether before bringing the accused no.9­Deepak Sisodiya to his Office he was taken to any other place.

361. He stated that PW.103­API Dewoolkar had produced the accused no.9­Deepak Sisodiya before him along with his medical papers. He stated that he had checked the medical papers and found that the accused no.9­ Deepak Sisodiya was well. He stated that the accused no.9­Deepak Sisodiya had injury on his right leg and was also diabetic. He stated that he did not ask PW.103­API Dewoolkar as to what drugs the accused no.9­ Deepak Sisodiya was taking for his injury and diabetes. He stated that in the medical papers, the treatment which was being given to the accused no.9­Deepak Sisodiya was not mentioned. He stated that PW.103­API Dewoolkar did not tell him that the accused no.9­Deepak Sisodiya was required to take Fortwin (pain killer injection) every two hours for the pain which he was suffering in his leg. He stated that he had done M.B.B.S. He stated that Fortwin was a pain killer injection and a person felt dizzy after using it. He stated that he did not confirm the medical condition of the accused no.9­Deepak Sisodiya from PW.143­ACP Duraphe.

362. He stated that when the accused no.9­Deepak Sisodiya came to his chamber he saw that the accused no.9­Deepak Sisodiya was having difficulty in walking. He stated that on being asked by him, the accused no.9­Deepak Sisodiya told him that his foot was amputated. He stated that on being asked by him, the accused no.9­Deepak Sisodiya told him that he used to take medicines intermittently. He stated that though he had asked the accused no.9­Deepak Sisodiya whether he required any medicines or 268 whether he was suffering from any pain he did not record this fact. He clarified that he had asked this casually to the accused no.9­Deepak Sisodiya. He stated that all the conversation which took place between him and the accused no.9­Deepak Sisodiya did not form a part of confession Part­1 and Part­2.

363. He stated that the accused no.9­Deepak Sisodiya did not make any complaint to him that he was having pain in his leg. He stated that he did not physically examine the accused no.9­Deepak Sisodiya. He stated that after taking the custody of the accused no.9­Deepak Sisodiya he neither referred him for medical examination nor did he not ask him whether he had his lunch. He stated that he did not offer lunch to the accused no.9­ Deepak Sisodiya. He stated that he did not ask the accused no.9­Deepak Sisodiya whether at that time he had taken any tablet. He stated that neither PW.103­API Dewoolkar had not brought the medicines of the accused no.9­Deepak Sisodiya along with him nor did he ask PW.103­API Dewoolkar as to why he did not bring the medicines of the accused no.9­ Deepak Sisodiya with him. He stated that he did not ask PW.103­API Dewoolkar or the accused no.9­Deepak Sisodiya about the medical history of the accused no.9­Deepak Sisodiya for past three days prior to 02/08/2011.

364. He stated that he may not have put all the questions to the accused no.9­Deepak Sisodiya as required by section 18 of the MCOC Act,1999. He stated that he did not remember whether he had specifically asked the accused no.9­Deepak Sisodiya whether he wanted to make confession. He denied that the accused no.9­Deepak Sisodiya only wanted to make a 'statement' and not a 'confessional statement'. 269

365. He stated that he did not receive any written communication from Police Station, Azad Maidan regarding the appointment of any team for visiting his Office after the proceedings of confession Part­1 were complete. He stated that his staff had informed him that a team from Police Station, Azad Maidan had come to his office. He stated that the proceedings of confession Part­1 were completed at 03:15 pm and thereafter, the contents of confession Part­1 were read over to the accused no.9­Deepak Sisodiya and once he confirmed the same, the printout was taken and then an intimation was given to the Police Station, Azad Maidan. He admitted that till the printout was taken and the signature of the accused no.9­Deepak Sisodiya was taken on confession Part­1 he did not allow any of his staff members to enter inside his chamber.

366. He stated that while recording confession Part­1 he did not ask the accused no.9­Deepak Sisodiya whether he wanted to meet his relatives or friends or Advocate. He stated that after confession Part­1 was recorded he did not offer food to the accused no.9­Deepak Sisodiya. He stated that he had called PW.106­API Shinde in his cabin after 03:30 pm. He stated that when he had called PW.106­API Shinde, the accused no.9­Deepak Sisodiya was in his chamber. He stated that he did not issue any separate memo to PW.106­API Shinde for getting the accused no.9­Deepak Sisodiya medically examined.

367. He stated that there were 7 Police Stations within the jurisdiction of Office of DCP, Zone­1 out of which only Police Station, Azad Maidan had a general lock­up. He stated that the accused persons of all the 7 Police Stations used to be lodged in the general lock­up of the Police Station, Azad Maidan. He stated that the general lock­up of Police Station, Azad Maidan was on the ground floor of Esplanade Court and that all the 270 accused persons who were taken in judicial custody of that Court were kept in the same general lock­up till they were sent to the Jail. He stated that he had directed PW.106­API Shinde to lodge the accused no.9­Deepak Sisodiya in the general lock­up of the Police Station, Azad Maidan.

368. He stated that he did not ask PW.106­API Shinde about the measures taken by him for the security of the accused no.9­Deepak Sisodiya. He stated that he had made oral communication with PW.106­ API Shinde in that regard. He stated that he did not direct PW.106­API Shinde to get the accused no.9­Deepak Sisodiya medically examined and to produce his medical report on the same day. He stated that confession Part­1 was recorded in two languages. He stated that he had received the message about the arrival of PW.106­API Shinde at around 03:15 pm. He stated that he did not remember whether PW.106­API Shinde had left his Office along with the accused no.9­Deepak Sisodiya at around 05:30 pm on 02/08/2011. He denied that he had directed PW.106­API Shinde to produce the accused no.9­Deepak Sisodiya before him on 03/08/2011 at 05:00 pm. He clarified that though he had directed PW.106­API Shinde to produce the accused no.9­Deepak Sisodiya before him on 03/08/2011 at 05:00 pm but after recording confession Part­1 while writing letter to Senior PI, Police Station, Azad Maidan he had specifically mentioned that the accused no.9­Deepak Sisodiya be produced before him on 03/08/2011 at 05:30 pm as the monsoon session of the Legislative Assembly was going on and he wanted some breathing space in between.

369. He stated that on 03/08/2011, when PW.106­API Shinde came to his office, he did not make any enquiry with him about the medical condition of the accused no.9­Deepak Sisodiya. He stated that PW.106­API Shinde had shown him the medical certificate of the accused no.9­Deepak 271

Sisodiya. He stated that as per the medical certificate he did not find that the medical condition of the accused no.9­Deepak Sisodiya was not good. He denied that the accused no.9­Deepak Sisodiya was under tremendous pressure as he was not given the medicines and the pain killers after every two hours.

370. He stated that he did not call for any report from PW.106­API Shinde regarding lodging of the accused no.9­Deepak Sisodiya in the General lock­up of the Police Station, Azad Maidan between 02/08/2011 and 03/08/2011. He stated that on 02/08/2011 and 03/08/2011, he did not visit the Police Station, Azad Maidan. He stated that he did not call for the lock­up register of 02/08/2011 and 03/08/2011. He voluntarily stated that he had made an enquiry in that regard with Senior PI, Police Station, Azad Maidan. He stated that he did not make any enquiry with PW.106­ API Shinde whether the accused persons of other Police Stations were lodged in the General lock­up on 02/08/2011 and 03/08/2011. He voluntarily stated that on making enquiry with Senior PI, Police Station, Azad Maidan, he was informed that the accused no.9­Deepak Sisodiya was kept in a separate lock­up.

371. He stated that while recording confession Part­2, the accused no.9­ Deepak Sisodiya had given correct answers to the questions put to him. He denied that while recording confession Part­2 the accused no.9­Deepak Sisodiya did not state that he did not want to make the confession. He denied that the accused no.9­Deepak Sisodiya wanted to make only a statement and not a confession. He denied that the accused no.9­Deepak Sisodiya did not state anything before him and that he had received a ready­made statement from the Crime Branch. He denied that the accused no.9­Deepak Sisodiya was not given the medical treatment on 272

02/08/2011.

ANALYSIS 372. It is not in dispute that PW.124­DCP Dr. Cherring Dorje was competent to record the confession of accused no.9­Deepak Sisodiya. From his evidence, it is also clear that he was authorized by Joint Commissioner, Crime to record the confession of accused no.9­Deepak Sisodiya. Accordingly, vide letter (Exh.1212) he directed PW.143­ACP Duraphe to produce the accused no.9­Deepak Sisodiya before him on 02/08/2011 by 02:00 pm for recording his confession. In view of the same, the accused no.9­Deepak Sisodiya was produced before him by PW.103­API Dewoolkar after making the station diary entry (Exh.884) at about 02:00 pm. PW.103­API Dewoolkar also produced the letter (Exh.1213) issued by PW.143­ACP Duraphe authorizing him to produce the accused no.9­Deepak Sisodiya before PW.124­DCP Dr. Cherring Dorje. Thereafter, PW.103­API Dewoolkar briefed PW.124­DCP Dr. Cherring Dorje about the accused no.9­Deepak Sisodiya. PW.124­DCP Dr. Cherring Dorje then took the custody of the accused no.9­Deepak Sisodiya. After that, PW.103­API Dewoolkar was asked to leave his chamber. Accordingly, PW.103­API Dewoolkar returned to his Office and made the station diary entry (Exh.885) in that regard. PW.122­DCP Dr. Cherring Dorje then ensured that nobody was hearing his conversation with the accused no.9­ Depak Sisodiya. He had a brief conversation with the accused no.9­Deepak Sisodiya to make him comfortable. The above acts of PW.122­DCP Dr. Cherring Dorje are corroborated on material points by the notes made by him on the first page of the confession Part­1 (Exh.1214).

373. It is also seen that before recording the confession Part­1 (Exh.1214) of the accused no.9­Deepak Sisodiya, PW.124­DCP Dr. 273

Cherring Dorje had complied with the provisions of Rule 3(2), Rule 3(3) and Rule 3(4) of the MCOC Rules, 1999. After taking the accused no.9­ Deepak Sisodiya in his custody he also ensured that no Police Officer who had taken part in the investigation of this case was present at the time of recording of the confession. By putting some general questions to the accused no.9­Deepak Sisodiya he ensured that there was a free and comfortable atmosphere to enable the accused no.9­Deepak Sisodiya to express what was in his mind. He closed the door of his cabin to ensure that nobody could see them. Thereafter, PW.124­DCP Dr. Cherring Dorje not only informed the accused no.9­Deepak Sisodiya that he was not associated with this case in any manner but he also in very clear terms cautioned him more than once that he was not bound to make any confession and if he did so, the same could be used as evidence against him. His evidence also shows that he had also put several other questions to the accused no.9­Deepak Sisodiya for satisfying himself that the accused no.9­Deepak Sisodiya was making the confession voluntarily. He also verified from the accused no.9­Deepak Sisodiya whether he was intimidated or tortured for making the confession to which the accused no.9­Deepak Sisodiya replied in the negative. After being satisfied, PW.124­DCP Dr. Cherring Dorje gave the period of more than 24 hours (He was given 27 Hours and 40 minutes) to the accused no.9­Deepak Sisodiya to reconsider his decision to make the confession. This was done in compliance of the provisions of Rule 3(4) of the MCOC Rules,1999. The evidence of PW.124­Dr. Cherring Dorje is consistent with the statements which are recorded in the confession Part­1 (Exh.1214). The object of giving such time to the accused no.9­Deepak Sisodiya was to ensure that he was completely free from Police influence. To enable the accused no.9­ Deepak Sisodiya to reconsider his decision, he was lodged in a separate cell (room) in the General lock­up of the Police Station, Azad Maidan after 274 he was first got medically examined in the J.J. Hospital. PW.106­API Shinde made the necessary entry in that regard in the lock­up register. Also, as per the directions of PW.124­DCP Dr. Cherring Dorje, nobody was permitted to meet the accused no.9­Deepak Sisodiya. The station diary entry (Exh.896 at sr.no.44 and 52) corroborate the oral evidence of PW.106­API Shinde. It is also seen that PW.124­DCP Dr.Cherring Dorje had issued the letter to the Senior PI, Police Station, Azad Maidan in that regard containing all the necessary instructions which were to be followed by him and his staff. By the said letter, it was also directed that the accused no.9­Deepak Sisodiya should be produced before him on 03/08/2011 at 05:30 pm.

374. From the evidence of PW.106­API Shinde, it is clear that on 03/08/2011, in the evening, he again took the custody of the accused no.9­Deepak Sisodiya, got him medically examined in the G.T. Hospital and then produced him before PW.124­DCP Dr. Cherring Dorje. He had made the station diary entry (Exh.897 at sr.no.50) in that regard. After that, the accused no.9­Deepak Sisodiya was produced before PW.124­DCP Dr. Cherring Dorje on 03/08/2011 at about 06:40 pm, in a veil along with his medical reports. After perusing the medical reports, he directed PW.106­API Shinde to leave his chamber. Thereafter, only himself and the accused no.9­Deepak Sisodiya were in his chamber. Thereafter, PW.124­ Dr. Cherring Dorje called his stenographer to record the proceedings. He specifically asked the accused no.9­Deepak Sisodiya whether he faced any problem in the lock­up or whether he had any complaint against anybody and whether the time given to him to reconsider his decision was sufficient. The accused no.9­Deepak Sisodiya was again cautioned that he was not bound to make any statement and that if he made any statement it may be used as evidence against him in the Court. He specifically asked 275 the accused no.9­Deepak Sisodiya whether he was coerced, intimidated, pressurized or whether any kind of allurement or false promise was given to him to make the confession but the accused no.9­Deepak Sisodiya replied in the negative. When PW.124­DCP Dr. Cherring Dorje asked the accused no.9­Deepak Sisodiya as to why he wanted to make the confession, he replied that he was repenting for his deeds and that he wanted speak the truth. After that he was once again cautioned. It is only thereafter that PW.124­DCP Dr. Cherring Dorje decided to record the confession of the accused no.9­Deepak Sisodiya. Thus, there was total compliance of the provisions of Rule 4(5) of the MCOC Rules,1999. The record of the above acts was prepared by PW.124­DCP Dr. Cherring Dorje [page 1 of confession Part­2 (Exh.1217)] and the same corroborates the oral evidence of PW.124­DCP Dr. Cherring Dorje. Thereafter, PW.124­DCP Dr. Cherring Dorje recorded whatever the accused no.9­Deepak Sisodiya stated to him. PW.124­DCP Dr. Cherring Dorje has deposed about the facts which were narrated to him by the accused no.9­Deepak Sisodiya and the same are consistent with the contents of the confession Part­2 (Exh.1217) on material points. The fact that during cross­examination of PW.124­DCP Dr. Chering Dorje the correctness of the facts recorded in the confession Part­2 were not challenged further shows that the facts recorded in the confession Part­2 were true.

375. At this stage, it is necessary to note that from the evidence of PW.124­DCP Dr. Cherring Dorje, it can be seen that while recording the confession made by the accused no.9­Deepak Sisodiya, he did not put any questions to him. This fact shows that PW.124­DCP Dr. Cherring Dorje was conscious about his role as a Competent Officer. He was aware that his duty was only to record whatever the accused no.9­Deepak Sisodiya wanted to say and not to interrogate him and thereby step into the shoes 276 of the Investigating Officer. It is also seen that immediately after the recording of confession Part­2, the memorandum as contemplated under Rule 3(6) of the MCOC Rules,1999 was also issued by PW.124­DCP Dr. Cherring Dorje. After the process was completed, the custody of the accused no.9­Deepak Sisodiya was again handed over to PW.106­API Shinde. It is also seen that in compliance of Rule 3(8) of the MCOC Rules,1999 PW.106­API Shinde was directed to produce the accused no.9­ Deepak Sisodiya before the learned Chief Metropolitan Magistrate, Esplanade on 04/08/2011 as on 03/08/2011 the Court working hours were over by the time the proceedings of confession Part­2 (Exh.1217) were completed and in the meantime he was directed to lodge the accused no.9­Deepak Sisodiya in the General lock­up of the Police Station, Azad Maidan. Accordingly, PW.106­API Shinde took the custody of the accused no.9­Deepak Sisodiya and lodged him the General lock­up of the Police Station, Azad Maidan. He had made the station diary entry (Exh.897 at sr.no.68) in that regard. On the next day, he produced the accused no.9­ Deepak Sisodiya before the Court of the learned Chief Metropolitan Magistrate, Esplanade.

376. From the evidence on the record, it can be said that PW.103­API Dewoolkar and PW.106­API Shinde properly followed the instructions given to them by their superior Officers. The steps taken by PW.106­API Shinde were not challenged by the accused no.9­Deepak Sisodiya in as much as the learned Advocate for the accused no.9 did not choose to cross­examine PW.106­API Shinde at all. Also, the confession of the accused no.9­Deepak Sisodiya was recorded by PW.124­DCP Dr. Cherring Dorje by adhering to provisions of law and only after he was satisfied that the accused no.9­Deepak Sisodiya wanted to make the confession voluntarily. There is nothing suspicious in the evidence of PW.103­API 277

Dewoolkar, PW.106­API Shinde and PW.124­DCP Dr. Cherring Dorje.

377. It may be noted that there is absolutely nothing to suggest that the accused no.9­Deepak Sisodiya was either pressurized or coerced to make the confession or he was under duress or undue influence. Also, it has come in the evidence of PW.124­Dr. Cherring Dorje that he recorded only those statements which were stated by the accused no.9­Deepak Sisodiya and that he did not add anything on his own. This further reflects that the confession was voluntary. Additionally, it may be noted that from the date of his arrest till 03/08/2011, the accused no.9­Deepak Sisodiya was produced before the Court on the dates of remand. However, he never made any complaint of ill­treatment or torture or assault at the hands of Police. The fact that no such grievance was made at that time reinforces the fact that his act of making the confession was voluntary.

378. In so far as the truthfulness of the contents of the confession made by the accused no.9­Deepak Sisodiya is concerned, it may be noted that the confession made by the accused no.9­Deepak Sisodiya discloses that many of the assertions made by him of personal nature. PW.124­DCP Dr. Cherring Dorje would not have known them unless those details were told to him either by the accused no.9­Deepak Sisodiya or somebody else. There is nothing in the evidence of PW.124­Dr. Cherring Dorje to suggest that somebody other than the accused no.9­Deepak Sisodiya could have given those details to him. There is nothing to suggest that he was either associated with any of the Police Officers concerned with the investigation of this case or that he had any part to play in the investigation in this case.

379. It may be noted that in cross­examination on behalf of the accused no.2, it was brought on the record that at the relevant time, he was 278 required to maintain law and order in the City and during the meetings which were held in the Office of the Commissioner of Police in that regard there was a reference to this case. It can be seen that indirectly it was sought to be brought on the record that PW.124­Dr. Cherring Dorje was associated with this case. If the learned Advocate for the accused no.2 was so sure that PW.124­Dr. Cherring Dorje was associated with the investigation of this case at any point of time, then nothing prevented him from putting a straight forward question to PW.124­Dr. Cherring Dorje in that regard. The fact that this was not done further shows that PW.124­ DCP Dr. Cherring Dorje was not associated with the investigation of this case in any manner and it was none other than the accused no.9­Deepak Sisodiya who narrated the contents of the confession to him.

380. At this stage, it needs to be noted that it is the case of the defence itself that the news regarding the murder of J.Dey had received wide publicity in the media. Therefore, it was but natural that not only the general public but also the Police officials may have some knowledge about the news regarding the murder of J.Dey. But on this ground alone, it will be unjust to hold that PW.124­Dr. Cherring Dorje was aware about all the details of the investigation of this case.

381. According to the learned Advocate for the accused no.9, the right leg of the accused no.9­Deepak Sisodiya was amputated and as on 02/08/2011, he was required to take Fortwin injection every three hours to relieve the pain due to which he used to have a feeling of giddiness and in view of such condition, the accused no.9­Deepak Sisodiya could not have made the confession. The said argument is required to be rejected. Firstly, no such grievance was made by the accused no.9­Deepak Sisodiya when he was produced before the learned Chief Metropolitan Magistrate 279 on 18/07/2011 in compliance of section 18(4) of the MCOC Act,1999. Further, no such stand was taken by the accused no.9­Depak Sisodiya even in his statement which was recorded u/s.313(b) of Cr.P.C.,1973. Also, the perusal of the remand papers shows on 22/07/2011 while remanding the accused no.9­Deepak Sisodiya to Police custody, the MCOC Court passed the following order below Remand application no.85/2011:

“In view of the submissions by the learned advocate for the accused no.9, the investigating officer ACP Duraphe is directed to provide all the necessary medical aid to the accused no.9 Deepak Dalvirsing Sisodiya” (Reproduced as it is.)

From the above, it is not clear what submissions were made before the Court on behalf of the accused no.9­Deepak Sisodiya. It is also not clear what the accused no.9­Deepak Sisodiya was suffering from at that time. However, one fact which is very much clear is that there is no reference in the order regarding the alleged pain in the legs of the accused no.9­Deepak Sisodiya and the use of Fortwin injection by him. Further, on 06/08/2011, the accused no.9­Deepak Sisodiya had filed an application for medical treatment on the ground that he was suffering from various ailments and that he was paralytic. The application was as vague as it could have been. The details of the ailments which the accused no.9­ Deepak Sisodiya was suffering from were not mentioned. However, the MCOC Court was considerate enough and allowed the said application by passing the following order:

“Application Ext.2 is allowed and disposed off as follows: Supdt., MCP is directed to direct CMO,MCP to examine and treat the A9 Deepak Dalvirsingh Sisodiya and to send the report on or before 12/08/2011.” (Reproduced as it is.)

Thus, from the application and the order passed on it, it appears 280 that it was never the case of the accused no.9­Deepak Sisodiya that he was required to take “Fortwin” injection for the alleged pain which he was suffering in his legs. Otherwise, the submission made on behalf of the accused no.9­Deepak Sisodiya would have found place in the order.

382. From the perusal of the further roznama dated 06/08/2011, it appears that only after the application filed by the accused no.9­Deepak Sisodiya for medical treatment was disposed of, an oral submission was made by the learned Advocate for the accused no.9­Deepak Sisodiya that the accused no.9­Deepak Sisodiya was required to take Fortwin injection every three hours for relieving his pain and then the following order was passed: “In view of the submission by ld adv for A9 that he is required to take Fortwin injection every three hours for relieving his pain, which is also confirmed by the ld. SPP and API Datir, Supdt. and CMO, MCP are directed to allow the A9 Deepak Dalvirsingh Sisodiya to carry four boxes of Fortwin injections and syringes with him inside the prison and to allow him to take the injections, if the accused has the necessary prescription with him and subject to approval of CMO and if he finds it necessary.” (Reproduced as it is.)

383. In view of the above order, the accused no.9­Deepak Sisodiya was permitted to carry four boxes of Fortwin injections and syringes with him inside the prison subject to having prescription and subject to approval of the CMO and only if the CMO found it to be necessary. It may be noted that during the course of arguments, the learned for the accused no.9 did not point out any document to show that in view of the above order passed by the Court the CMO had found that it was necessary for the accused no.9­Deepak Sisodiya to take Fortwin injection. Thus, it appears that even after the above mentioned order was passed the accused no.9­ 281

Deepak Sisodiya never took the Fortwin injection.

384. Let's assume for a moment that the accused no.9­Deepak Sisodiya was indeed taking such injection every three hours. Still, there is no evidence on the record to show that after taking the said injection he used to feel giddiness or his condition was such that he was not in a position to understand anything or that it affected his mental faculties. As stated earlier, in the statement u/s.313(b) Cr.P.C.,1973 the accused no.9­Deepak Sisodiya has not taken the stand that as he was taking Fortwin injection he was not in a position to understand anything. The stand taken by him is that he was falsely implicated in this case by the Police from Haldvani. The relevant portion of the statement made by the accused no.9­Deepak Sisodiya u/s.313(b) of Cr.P.C.,1973 is reproduced below:

“Q. 367: Do you want to say anything about the case?

Ans.: On 25th June there was altercation between me and the police at my house. The whole village had gathered there. The police was insulted and therefore I was implicated. I was arrested on 17.07.2011. On 19.07.2011 I was produced in the Court at Haldwani. At that time, the police from Bombay was there. They did not have any document with them to show my involvement in any case. Thereafter, I was brought to Mumbai. I was being told that I would be released. As my health was very bad I did not understand what was happening. After 6 months when I read the charge­sheet I came to know that I was charged with supplying cartridges.”

385. The above stand taken by the accused no.9­Deepak Sisodiya shows the falsity of the claim made by him. If he was really taking Fortwin injection and if after taking such injection he used to really feel giddiness and and loose his sense of understanding then nothing prevented him from taking such a stand in his statement which was recorded u/s.313(b) 282

Cr.P.C.,1973. It is not the case of the accused no.9­Deepak Sisodiya that at the time of recording of his statement u/s. 313(b) of the Cr.P.C.,1973 also he had taken the said injection because of which he was unable to understand the questions which were put to him by the Court. It may be stated here that when an accused claims to be falsely implicated he has to lay down a factual foundation for the same and prove it by leading impeccable evidence. But, no evidence was led in that regard.

386. At this stage, it is necessary to note that on 08/03/2018, the learned Advocate for the accused no.9 argued the case on behalf of the accused no.9­Deepak Sisodiya. On that day, the accused no.9­Deepak Sisodiya was present in the Court throughout. During the course of hearing, when this Court specifically asked the learned Advocate for the accused no.9 whether the said accused was still taking Fortwin injection, the learned Advocate for the accused no.9 replied in the affirmative. But this Court found that during the whole of that day, the accused no.9­Deepak Sisodiya did not go outside the Court room for taking any such injection though he went outside the Court room for a minute or two. This further creates a doubt about the submission made by the learned Advocate for accused no.9 that the accused no.9­Deepak Sisodiya was taking Fortwin injection. In any case, no evidence was led on behalf of the accused no.9­Deepak Sisodiya to show that such injection caused any side effect(s).

387. It may also be noted that vide application (Exh.9) filed on 15/09/2011, the accused no.9­Deepak Sisodiya who was lodged in the Mumbai Central Prison at the relevant time prayed that he be transferred to the Byculla District Prison. It appears that his application was allowed and he was transferred to the Byculla District Prison. After the accused no.9­Deepak Sisodiya was admitted to the Byculla District Prison, he was 283 medically examined by the Medical Officer of the Byculla District Prison on 12/10/2011 and his medical report was forwarded to the Court as a part of compliance. The said medical report is at page 108 of the remand papers. The perusal of the same shows that while narrating the history to the Medical Officer, the accused no.9­Deepak Sisodiya never told him that he was required to take Fortwin injection every three hours for the pain which he was suffering. This omission on the part of the accused no.9­ Deepak Sisodiya further shows the falsity of his claim.

388. It may also noted that the accused no.9­Deepak Sisodiya has failed to explain as to why he did not disclose the fact that he was taking Fortwin injection either PW.103­API Dewoolkar or PW.106­API Shinde or PW.124­DCP Dr. Cherring Dorje. Had he told them about this, they would have taken proper precautions. It is also necessary to state here that during the evidence of PW.124­DCP Dr. Cherring Dorje it has come on the record that he had a degree in M.B.B.S.. It has come in the evidence of PW.124­DCP Dr. Cherring Dorje that after the accused no.9­Deepak Sisodiya was produced before him on 02/08/2011 and 03/08/2011, he found that his medical condition was normal. Considering the fact that PW.124­DCP Dr. Cherring Dorje was a Doctor also, the opinion formed by him cannot be simply brushed aside and in absence of any evidence to the contrary, his opinion that the general health of the accused no.9­Deepak Sisodiya was good at that time has to be accepted.

389. From the above, it is very much clear that the story of taking Fortwin injection by the accused no.9­Deepak Sisodiya is nothing but an afterthought and the same is weaved to create imaginary doubts about the voluntary nature of the confession made by him. 284

390. It was then argued that the accused no.9­Deepak Sisodiya was pressurized to make the confession as he was not permitted to meet his relatives or his Advocate when he was lodged in the lock­up. It may be noted that the MCOC Act,1999 being a special Statute, its provisions will prevail over the general provisions of law. The MCOC Act,1999 does not entitle an accused to meet his relatives or his Advocate. Therefore, the accused no.9­Deepak Sisodiya cannot claim such benefit. Having said this, let's assume that the accused no.9­Deepak Sisodiya was entitled to meet his relatives or his Advocate. But it is not his stand that when he was in the lock­up he expressed any desire to meet his relatives or his Advocate and the same was refused. It is also not the case of the accused no.9­ Deepak Sisodiya that though his relatives or his Advocate wanted to meet him, they were not permitted to do so. That apart, the accused no.9­ Deepak Sisodiya was being represented by his Advocate since day one after he was brought to Mumbai. But no grievance was made by his Advocate with regard to the above. Hence, the submission made on this point has to be rejected.

391. It was also argued that many of the statements made by PW.124­ DCP Dr. Cherring Dorje in his examination­in­chief do not find place in the confession Part­2. It was thus submitted that in view of the omissions, the confession made by the accused no.9­Deepak Sisodiya cannot be relied upon. The above submission does not have any basis. The failure on the part of PW.124­DCP Dr. Cherring Dorje to incorporate all the questions and answers which he had put to the accused no.9­Deepak Sisodiya is not of much importance when it is duly proved that PW.124­DCP Dr. Cherring Dorje had complied with all the requirements of the law regarding the recording of the confession made by the accused no.9­Deepak Sisodiya. Further, the fact that there is no challenge to the facts stated by the 285 accused no.9­Deepak Sisodiya in his confession makes the case of the prosecution even more strong. That apart, it cannot be forgotten that PW.124­DCP Dr. Cherring Dorje was totally unconnected with the investigation of this case. Though he was a Police Officer he did not have any motive to falsely implicate the accused no.9­Deepak Sisodiya.

392. It was next argued that the accused no.9­Deepak Sisodiya wanted to give his 'statement' and not 'confessional statement' before PW.124­DCP Dr. Cherring Dorje. The said argument has no basis. The prosecution has duly proved that the accused no.9­Deepak Sisodiya had made confessional statement before PW.124­DCP Dr. Cherring Dorje. Under the MCOC Act,1999 PW.124­DCP Dr. Cherring Dorje was empowered to record a confession and not a general statement of the accused. That apart, the stand taken by the accused no.9­Deepak Sisodiya is nothing but an afterthought. When the accused no.9­Deepak Sisodiya was produced before PW.124­DCP Dr. Cherring Dorje he was cautioned on more than one occasion that if he makes the statement he could be punished on the basis of the same. Also, as stated earlier, after the confession was recorded, he was produced before the learned Chief Metropolitan Magistrate, Esplanade on 04/08/2011 in compliance of section 18(4) of the MCOC Act,1999. At that time also, he did not make any such grievance. On the contrary, he admitted before the learned Chief Metropolitan Magistrate that the contents of the confession were correct and as per the narration given by him. Not only that, the accused no.9­ Deepak Sisodiya has clearly stated that there was no threat, pressure or influence by the Police when his statement was being recorded. In view of the above, nothing more is required to be stated further as it is very much clear that the accused no.9­Deepak Sisodiya was aware about what statement was given by him to PW.124­DCP Dr. Cherring Dorje and what 286 could be its effect.

393. It was then argued that the accused no.9­Deepak Sisodiya was lodged in the General lock­up of the Police Station, Azad Maidan where not only the suspects from the other Police Stations are lodged but also the Officers of the Crime Branch have access to the same. On the basis of the above, it was submitted that the possibility of the Officers from the Crime Branch approaching the accused no.9­Deepak Sisodiya for pressurizing or coercing him to make the confession cannot be ruled out. The said submission deserves to be rejected. There is no absolutely no evidence to suggest that what the learned Advocate for the accused no.9 has submitted might have happened. That apart, as stated earlier, when the accused no.9­Deepak Sisodiya was produced before the learned Chief Metropolitan Magistrate, Esplanade he had himself stated that the contents of his statement were correct and as per the narration given by him and that there was no threat, pressure or influence by the Police when his statement was being recorded. The Court record has to be believed and as such, it has to be said that the submission made on this point has no substance.

394. It was then argued that the confession made by the accused no.9­ Deepak Sisodiya was already prepared and produced before PW.124­DCP Dr. Cherring Dorje and the same cannot be taken into consideration for any purpose. It was submitted that PW.124­DCP Dr. Cherring Dorje has deposed that on 03/08/2011, the accused no.9­Deepak Sisodiya was produced before him by PW.106­API Vijay Shinde at about 06:40 pm and after completing the statutory formalities he recorded the confession Part­ 2. Thereafter, he handed over the custody of the accused no.9­Deepak Sisodiya to PW.106­API Vijay Shinde after completing the statutory 287 formalities along with three letters and two sealed envelopes (containing original of the confession Part­1 and 2). However, by pointing to the evidence of PW.106­API Vijay Shinde, the learned Advocate for the accused no.9 submitted that after the confession of the accused no.9­ Deepak Sisodiya was recorded, PW.124­DCP Dr. Cherring Dorje handed over the custody of the accused no.9­Deepak Sisodiya to him along with two sealed envelopes (containing original of the confession Part­1 and 2) and then himself, his team who had accompanied him and the accused no.9­Deepak Sisodiya went to the G.T. Hospital where the accused no.9­ Deepak Sisodiya was medically examined. Relying upon the medical report (Exh.1672) which shows that the medical examination of the accused no.9­Deepak Sisodiya was conducted at 06:15 pm on 03/08/2011 and the evidence of PW.106­API Vijay Shinde on this point, it was argued that PW.124­DCP Dr. Cherring Dorje could not have recorded the confession Part­2 at 06:40 pm when at 06:15 pm, PW.106­API Vijay Shinde was already having the original of the confession Part­1 and 2 in his hands.

395. The above submission has no merit. The statement made by PW.106­API Vijay Shinde that the accused no.9­Deepak Sisodiya was taken for medical examination after he took his custody from PW.124­DCP Dr. Cherring Dorje is nothing but an aberration and no importance can be attached to same. When the evidence of PW.106­API Vijay Shinde is considered as a whole and together with the evidence of PW.124­DCP Dr.Cherring Dorje it can be seen that what had actually happened was that on 03/08/2011, in the evening PW.106­API Vijay Shinde took the custody of the accused no.9­Deepak Sisodiya from the General lock­up of the Police Station, Azad Maidan and then took him for medical examination to the G.T.Hospital. Therefore, he produced the accused no.9­Deepak 288

Sisodiya before PW.124­DCP Dr. Cherring Dorje. Otherwise, there was no occasion for PW.124­DCP Dr. Cherring Dorje to go through the medical report dated 03/08/2011 of the accused no.9­Deepak Sisodiya. The fact that the accused no.9­Deepak Sisodiya was first taken for his medical examination to the G.T. Hospital and then produced the accused no.9­ Deepak Sisodiya before PW.124­DCP Dr. Cherring Dorje is very much clear from the station diary entry (Exh.897) which was made by PW.106­API Vijay Shinde at the relevant time. It is no doubt true that the oral evidence of PW.106­API Vijay Shinde is the substantive evidence but it cannot be forgotten that he was deposing after about six years after the incident and he might have missed the sequence of the events which had taken place at that time. The errors due to lapse of memory have to be given due allowance as a witness cannot be expected to possess a photographic memory and to recall the details. The aberration in the evidence of PW.106­API Shinde is not intentional/deliberate. On the other hand, the station diary entry (Exh.897) is a contemporaneous record and has to be given due weightage. Therefore, this Court is not inclined to attach any importance to the aberration in the evidence of PW.106­API Vijay Shinde.

396. It was next argued that the confession made by the accused no.9­ Deepak Sisodiya is not reliable also on the ground that in the confession he is alleged to have said that at the time of going to the Katgodam railway station for delivering the cartridges and the two revolvers to the accused no.1­Rohee Tangappan Joseph @ Staish Kalya he was driving the Scorpio vehicle. On the basis of the above, it was submitted that as admittedly, the right leg of the accused no.9­Deepak Sisodiya was amputated he could not have driven the Scorpio vehicle and a false statement was attributed to him. The said submission has no merit. Firstly, even though it is not disputed that the right leg of the accused no.9­ 289

Deepak Sisodiya was amputated the fact remains that he is using prosthetic foot (Jaipur foot). Whenever he appeared before this Court it was found that he was using prosthetic foot (Jaipur foot) and he was able to walk properly. Also, it is not that a person using prosthetic foot (Jaipur foot) cannot drive a vehicle. It was not shown that unless the vehicle is modified a person using prosthetic foot (Jaipur foot) cannot drive it. That apart, it needs to noted that when PW.124­DCP Dr. Cherring Dorje was in the witness box, he was never questioned about any of the facts stated by the accused no.9­Deepak Sisodiya in confession Part­1 and 2. Therefore, the above submission cannot be accepted.

RETRACTION OF THE CONFESSION BY THE ACCUSED NO.9­DEEPAK SISODIYA. 397. On 15/09/2011, when the accused no.9­Deepak Sisodiya was produced before the MCOC Court at the remand stage, he retracted the confession made by him before PW.124­DCP Dr. Cherring Dorje on 02/08/2011 and 03/08/2011. This Court is not inclined to read much into the retraction of confession made by the accused no.9­Deepak Sisodiya as it is very clear that the same was done by way of an afterthought.

398. The record show that the accused no.9­Deepak Sisodiya was caught at Nainital and brought to Mumbai where he was arrested. He was produced before the MCOC Court at Mumbai on 22/07/2011. On the same day, Advocate Shri Nitin Sejpal filed vakalatnama on behalf of the accused no.9­Deepak Sisodiya. After hearing both the sides, the accused no.9­Deepak Sisodiya was remanded to Police custody till 28/07/2011. Thereafter, his Police custody was extended till 06/08/2011 and after that, the accused no.9­Deepak Sisodiya was remanded to judicial custody. On the dates of remand, he was produced before the Court but neither he 290 nor his Advocate made any grievance of ill­treatment or torture at the hands of the Police. The confession of the accused no.9­Deepak Sisodiya was recorded on 02/08/2011 and 03/08/2011. There is nothing to show that Advocate Shri Nitin Sejpal who was representing the accused no.9­ Deepak Sisodiya raised any grievance that the confession made by the accused no.9­Deepak Sisodiya was not voluntary or that he never made a confession. Also, on 04/08/2011, the accused no.9­Deepak Sisodiya was produced before the Court of the learned Chief Metropolitan Magistrate, Esplanade in compliance of the provisions of section 18(4) of the MCOC Act,1999. But at that time also, neither the accused no.9­Deepak Sisodiya nor his Advocate raised any grievance that the confession was not voluntary or that no confession was made. The purpose of producing the accused before the Magistrate is to provide an early opportunity to him to give his say before an independent agency to ensure that the confession made by him is not outcome of any trap, track or importune. But the accused no.9­Deepak Sisodiya did not make use of the opportunity which he had. If the accused no.9­Deepak Sisodiya had not make any confession then he should have used that opportunity. But, it is only on 15/09/2011, after engaging the services of another learned Advocate, that the accused no.9­Deepak Sisodiya chose to move application for retraction (Exh.6). The accused no.9­Deepak Sisodiya has not explained as to why he waited for more than one month before making the application for retraction (Exh.6) when nothing prevented him from making the grievance in that regard earlier.

399. It may be noted that in the retraction application (Exh.6), it was contended that he was never produced before the learned Court of Metropolitan Magistrate, Esplanade on 04/08/2011. The same cannot be accepted as the record in that regard is available before this Court in the 291 form of the statement (Exh.1421) which was recorded by the learned Chief Metropolitan Magistrate, Esplanade. In the statement before the learned Chief Metropolitan Magistrate, Esplanade the accused no.9­ Deepak Sisodiya clearly stated that the confession Part­1 & 2 was recorded by PW.124­DCP Cherring Dorje, that the contents of the same were read over to him, that the contents were correct, that he was not threatened, pressurized or influenced by the any Police Officer that he had personally gone through the contents of the same and it was recorded as per the narration given by him, that it was his voluntary statement and that he had signed the same. The above statements which were made by the accused no.9­Deepak Sisodiya before the learned Chief Metropolitan Magistrate, Esplanade clearly show that his decision to retract from the confession made by him after more than one month was nothing but an afterthought and in view of the legal advice received by him.

400. It may also be noted that after the charge­sheet was filed, the accused no.9­Deepak Sisodiya made another application for retraction. Coincidently, that application also came to be marked as Exh.6. In that application, the accused no.9­Deepak Sisodiya changed his story and claimed that though he was produced before the learned Chief Metropolitan Magistrate on 04/08/2011 he was given an impression by the Police that he was produced in that Court for his discharge. Not only that he even stated that his signatures were taken on a ready­made statement under the garb of discharging him from this case. Thus, the accused no.9­Deepak Sisodiya has taken totally contradictory stands in the two retraction applications. He did not explain as to what prompted him to take such contradictory stands. This further shows that the retraction was made just for the sake of it. 292

401. From the above, it is clear that the confession made by the accused no.9­Deepak Sisodiya was voluntary and truthful. At the same time, it is clear that the retraction of the same was nothing but an afterthought. Therefore, the said retraction is required to be ignored.

CONFESSION MADE BY THE ACCUSED NO.10­PAULSON PALITARA. 402. As per the prosecution, the accused no.10­Paulson Palitara was arrested on 05/09/2011. On 13/09/2011 and on 14/09/2011, the accused no.10­Paulson Palitara voluntarily made the confession before PW.119­DCP Manohar Dalvi. The gist of the confession made by the accused no.10­Paulson Palitara is as follows:

In the year 2000, he started a canteen in the NPC Company at Chembur, Trombay Road. He then came in contact with one Anil Patankar who offered him the job of driver with Pradip Narayan Madgaonkar @ Bandya Mama who was a member of the gang of accused no.12­Chhota Rajan. Bandya Mama had a hold in Tilak Nagar, Chembur. Because of this, he accepted the said offer and worked as a driver with Bandya Mama till 2005. On many occasions he had seen Bandya Mama talking to accused no.12­ Chhota Rajan on mobile phone. Bandya Mama had given his (accused no.10­Paulson Palitara's) mobile number to the accused no.12­Chhota Rajan and sometimes the accused no.12­Chhota Rajan used to contact him on his mobile number.

In the year 2006, Bandya Mama was named as an accused in the murder of one Sanjay Gupta at Nerul and Bandya Mama was shown as wanted in that case. After some days, the accused no.12­Chhota Rajan contacted him on his mobile phone and asked him whether he was ready to work for his gang.

In the year 2007, he became the Secretary of the Bahujan Samaj Party, Mumbai branch. He was arrested by the Crime Branch on the basis of a complaint made by Santosh Samant against him in relation to a quarrel which had taken place between them. But he was released on bail on the next day. In the year 2009, he left 293 the Bahujan Samaj Party and joined the Nationalist Congress Party and he was appointed as the Secretary of that party.

He stated that in the year 2010, one Shri Sayyed r/o. Amar Mahal near Chembur had filed a complaint of extortion against him, the accused no.12­Chhota Rajan and Builder Jatin Shah with Police Station, Tilak Nagar and in connection with that case he was lodged in jail for two days. On 24/07/2010, he was externed for one year by the Chembur Police Station.

He stated that he knew the wanted accused no.2­Ravi Rattesar. In September 2010, the wanted accused no.2­Ravi Rattesar called him from the number “+401” which was a global roaming SIM card. When he asked the wanted accused no.2­Ravi Rattesar about the features of the global roaming SIM card, he said that such SIM card was not registered in the name of any person, that all the incoming calls while roaming in any part of the world were free and that if one uses such a SIM card the place from where the caller is calling is not disclosed. Wanted accused no.2­Ravi Rattesar also told him that such SIM cards were available in the shops at Dubai Airport. Therefore, he told the wanted accused no.2­Ravi Rattesar to bring 10 global roaming SIM cards for him. After one week, the wanted accused no.2­ Ravi Rattesar telephonically informed him that he had brought 10 global roaming SIM cards for him. After getting the SIM cards, he used one of them. After 3­4 days, the accused no.12­ Chhota Rajan contacted him on his phone. When he told the accused no.12­Chhota Rajan about the features of the global roaming SIM cards, the accused no.12­Chhota Rajan told him that if he wanted to talk to him, he should talk with the help of the global roaming SIM card only. The accused no.12­Chhota Rajan also told him to give the remaining 9 SIM cards to those persons whose name he would disclose and accordingly, he gave the remaining 9 global roaming SIM cards to those persons through his driver ­Ashok Kunder.

Again in March 2011, he told the wanted accused no.2­Ravi Rattesar to bring 10 more global roaming SIM cards from Dubai and accordingly, the wanted accused no.2­Ravi Rattesar brought 10 such SIM cards which were already recharged from Dubai. 294

The said SIM cards were received by him through his driver ­Ashok Kunder. On the same day, at about 04:00 pm, the accused no.12­Chhota Rajan called him on his global roaming SIM card number. At that time, he told the accused no.12­ Chhota Rajan that he had 10 more global roaming SIM cards. He also told the accused no.12­Chhota Rajan that he had given 20 global roaming SIM cards and recharge and that money was due. On that, the accused no.12­Chhota Rajan told him to go near the Mall at Vashi Railway Center­1, at 06:00 pm and that he would be given Rs.5 Lacs there. When he went there at 6:00 pm, one person aged between 25 to 30 years came near him and gave him a blue colored bag made of cloth. After about 4­5 days, the accused no.12­Chhota Rajan called him on his global roaming SIM card and told him to go near the gate of Diamond garden, Chembur and to give one global roaming SIM card and Rs.2 Lacs to a person by name Samir. Accordingly, he told his driver ­Ashok Kunder to go to that place with a global roaming SIM card and Rs.2 lacs. After about 3½ hours, the driver­Ashok Kunder telephonically informed him that he had delivered the global roaming SIM card and Rs. 2 Lacs.

After about 2 days, the accused no.12­Chhota Rajan again called him on his global roaming SIM card and told him to give one global roaming SIM card and Rs.30,000/­ to another person by name Samir. Accordingly, he told his driver­Ashok Kunder to go to the place stated by the accused no.12­Chhota Rajan for delivery the SIM card and Rs.30,000/­. After about 4 hours, the driver­Ashok Kunder telephonically informed him that he had made the delivery. He has stated that he gave the balance amount of Rs.2,70,000/­ out of Rs.5 Lacs given by the accused no.12­Chhota Rajan to his wife.

On 08/05/2011, at about 10:30 am, he told his wife to give the bag containing the money to his brother­in­law Prasad Shah who was present with him at that time. He told Prasad Shah to give the bag containing cash to the wanted accused no.2­Ravi Rattesar.

On 27/07/2011 he went to his house as his period of externment was over. On 05/09/2011, he was caught by the 295

Officers of the Crime Branch and was taken to the Head Office of the Crime Branch for enquiry. He disclosed to them whatever he was knowing. On 07/09/2011, he produced one global roaming SIM card which he was using for contacting the accused no.12­ Chhota Rajan which was seized by the Police by preparing panchanama in that regard.

ASSESSMENT OF THE STATEMENT MADE BY THE ACCUSED NO.10­ PAULSON PALITARA. 403. The question which arises for consideration is whether the statement made by the accused no.10­Paulson Palitara amounts to a confession or not. The statements made by the accused no.10­Paulson Palitara will have to be considered in the light of the charges framed against him. As in the case of the accused no.9­Deepak Sisodiya, his statement also shows that he was not actually connected with the murder of J.Dey. However, from the statements made by him it can be clearly gathered/ inferred that he was an active member of the gang of the accused no.12­Chhota Rajan.

404. The membership of an Organized Crime Syndicate is made punishable u/s.3(4) of the MCOC Act,1999. However, the question here is that assuming for a moment that the confession made by the accused no.10­Paulson Palitara was voluntary and truthful and further assuming for a moment that the offence in question was committed by the Organized Crime Syndicate of the accused no.12­Chhota Rajan, can the accused no.10­Paulson Palitara be convicted and sentenced for the offence punishable u/s.3(4) of the MCOC Act,1999 simplicitor when there is no evidence to show his involvement in the murder of J.Dey?. In the case of Mangesh Manik Kanchan and another V. State of Maharashtra reported in 2016 (1) Bom.C.R.(Cri.) 350, a similar question had arisen before the Hon'ble High Court. In paragraph nos.6 to 10 of the order, the 296

Hon'ble High Court observed as under:

“6. To be a member of an organized crime syndicate is an offence under section 3(4) of the Act, which reads as follows:

3. Punishment for organised crime­ (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 liable to a fine, subject to a minimum fine of rupees five lacs.

7. Before invoking section 3(4) of MCOC Act, it is necessary to consider 3(1) of the Act. Section 3 speaks about the Punishments for the organized crime and section 2 states the definitions of the terms under the MCOC Act. The continuing unlawful activity is supposed to be a core of the offences. The definition of continuing unlawful activity under section 2(d) reads as under:

"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 charge­sheets have been filed before a Competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;

8. Thus, "the activity" should be prohibited by law for the time being in force. That activity is a cognizable offence punishable with imprisonment of three years or more. Therefore, continuing unlawful activity necessarily contemplates commission of cognizable offence. A person can be a member of a particular gang but he may not participate at all in a commission of offence committed by a particular member of the gang. For each and every commission of the offence, all the gang members, who are from that gang, cannot be roped in. It will lead to a tyrant situation. These members may work under one leadership, however, they may commit offence independently which should fall under the definition of "continuing unlawful activity" as either singly or jointly as a member of an organized crime 297

syndicate. However, it is necessary for a member to either participate actively or passively in such crime, then only he can be charged for the offence punishable under the Indian Penal Code and then the member who has knowingly participated either actively or passively can also be prosecuted under section 3(4) of the MCOC Act......

9. Continuous unlawful activity contemplates commission of cognizable offence and therefore, if at all there is a commission of cognizable offence along with other ingredients, then it is a continuous unlawful activity may amount to organized crime and the person who is involved in such commission of offence and if at all he is a member of the organized crime syndicate, he can be punished under section 3(4) of the MCOC Act. These all definitions are circular and interlinking with each other and therefore, a prosecution simplictor under section 3(4) of the MCOC Act though is available in the Act, is practically not possible. A member of syndicate may commit cognizable offence jointly, then section 3(4) can be invoked for the offence and he can be charge­sheeted accordingly. However, if cognizable offence is not committed and though he is known as a member of organized crime syndicate, cannot be prosecuted and charge sheeted for being a member of organized crime alone. Though there is a penal provision yet due to circular definitions of the terms under sections 2(d) and 2(e) of the Act, a member of a gang practically cannot be prosecuted under section 3(4) of the Act simplicitor.

10. Life flows and a member may repent and he may withdraw himself from the gang. A person may not remain a member of the gang throughout his life and therefore, it is draconian to permanently keep him under a hanging sword that he can be prosecuted under section 3(4) of the MCOC Act for any crime committed by any member of the gang. Therefore, penal section 3(4) is necessarily controlled by defining sections 2(d ) and 2(e) of the Act...... ”

405. The observations made by the Hon'ble High Court in the case of Mangesh Manik Kanchan (supra) are squarely applicable in so far as the case against the accused no.10­Paulson Palitara is concerned. There is 298 absolutely no evidence to show that the accused no.10­Paulson Palitara was actively or passively involved in the murder of J.Dey. Therefore, in view of the observations made by the Hon'ble High Court in the case of Mangesh Manik Kanchan (supra) he cannot be convicted for the offence punishable u/s.3(4) of the MCOC Act,1999 simplicitor.

406. In view of the above position, it is not necessary to discuss the evidence of PW.103­API Dewoolkar, PW.115­PSI Laxmikant Salunkhe and PW.119­DCP Manohar Dalvi regarding the confession made by the accused no.10­Paulson Palitara and it needs to be stated that the accused no.10­Paulson Palitara is entitled to be acquitted of all the offences with which he is charged.

(B) E XTRA­JUDICIAL CONFESSIONS MADE BY THE ACCUSED NO.12­ CHHOTA RAJAN . 407. The prosecution has heavily relied upon the extra­judicial confessions made by the accused no.12­Chhota Rajan to PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra to connect him with the murder of J.Dey.

408. PW.76­Jitendra Dixit was working as a Senior Editor with ABP news in the year 2011. He deposed that in November 2011, he was called by an Officer of the rank of ACP from the Crime Department for giving statement in this case. He deposed that one day prior to that he received a phone call from the number +3444 on his mobile number 9820703347. He deposed that when he picked up the phone he realized that the phone call was from accused no.12­Chhota Rajan. He deposed that he identified the voice of accused no.12­Chhota Rajan as he had received phone calls from him on earlier occasions also. He deposed that he had also heard his 299 interviews which he had given to the news channels. He deposed that being a Crime Reporter, he was in contact with the Police and he had heard voice sample of accused no.12­Chhota Rajan.

409. He deposed that in the earlier phone call which was made by accused no.12­Chhota Rajan to him, the accused no.12­Chhota Rajan had told him that the firing upon two persons namely Chhote Miya, Aasif Dadhi and Aarif Sayyad was done at his instance.

410. He deposed that in the phone call which was made by accused no.12­Chhota Rajan one day prior to the recording of his statement, the accused no.12­Chhota Rajan told him that he regretted killing J.Dey. He deposed that the accused no.12­Chhota Rajan told him that he was mis­ informed about J.Dey. He deposed that the accused no.12­Chhota Rajan told him that “kisine mere kaan bhare the”. He deposed that accused no.12­Chhota Rajan told him that J.Dey wanted that he should meet him (J.Dey) in London but when he did not meet J.Dey in London J.Dey told him to meet him in Philippines as shortly he was going there. He deposed that the accused no.12­Chhota Rajan told him that he did not meet J.Dey in London as his informer in London had told him that J.Dey was meeting people related to the gang of Dawood Ibrahim in London. He deposed that the accused no.12­Chhota Rajan told him that he was suspecting that J.Dey was affiliated to the gang of Dawood Ibrahim. He deposed that the accused no.12­Chhota Rajan also told him that Journalists were free to write anything and that he should not have killed J.Dey. He deposed that during the conversation, the accused no.12­Chhota Rajan also told him that J.Dey was giving credit to Santosh Shetty and Bharat Nepali (they were earlier members of the gang of accused no.12­Chhota Rajan) for the work done by him which had made him feel that J.Dey was against him. 300

411. PW.76­Jitendra Dixit deposed that after the conversation, he posted the contents of the conversation on his personal blog “address to the Universe” on his website www.jitendradiary.blogspot.com. He identified the printout dated 17/11/2011 (Exh.788) of his personal blog.

412. In cross­examination on behalf of accused nos.1,6 and 7, he stated that in this case, his first statement was recorded by the Crime Branch and his second statement was recorded by the CBI but he did not remember the exact dates on which his statements were recorded. He stated that when he was called by the CBI for recording his statement, the CBI had made enquiry with him about the previous statement recorded by the Crime Branch. But he denied that at that time CBI had shown him his previous statement which was recorded by the Crime Branch. He stated that while giving statement to the CBI he did not give the exact date and time on which he had received the call from the accused no.12­Chhota Rajan. He voluntarily stated that he did not give the details as the CBI was already in possession of the copy of printout of his blog (Exh.788). He stated that he did not remember whether at the time of giving statement to the Police he had given the printout of the blog (Exh.788) to the Police. He admitted that this fact was not mentioned in his statement which was recorded by the Police. He stated that he was deposing about this fact for the first before the Court. He stated that the above facts were not mentioned in his statement recorded by CBI also.

413. PW.76­Jitendra Dixit stated that he had done reporting about this case also. He stated that being a Crime Reporter he had contacts with the Police. But he stated that his contacts were purely professional. He denied that he used to help the Police whenever required. He denied that he used 301 to report the news received from the Police without verifying its truth. He stated that whenever possible the news used to be first verified and then forwarded for broadcasting. He denied that the Police used to give him the confidential information. He stated that the Police did not record his statement regarding hearing of voice sample of the accused no.12­Chhota Rajan.

414. PW.76­Jitendra Dixit stated that he had not done any training or course of recognition of voice samples. He stated that he was not an expert in recognizing voice samples. He denied that the person who was calling 'claimed' that he was the accused no.12­Chhota Rajan. He stated that he was very sure that the person calling him was the accused no.12­ Chhota Rajan. He stated that he did not record the phone call which was made by the accused no.12­Chhota Rajan one day prior to the recording of his statement by the Police.

415. He stated that he had gone to the Police Station on 17/11/2011 after receipt u/s.91 Cr.P.C.,1973 He stated that prior to 17/11/2011 also he was following up this case with the Police. He denied that he did not give the details about the date and time of the earlier phone calls received by him from the accused no.12­Chhota Rajan. He stated that he did not remember how many times the accused no.12­Chhota Rajan had phoned him. He stated that he did not remember whether he had given the above details to the CBI also. He denied that whatever news he had with him was also available with the other Reporters. He stated that due to competition, the reports were kept secret. He stated that the news about interview with the accused no.12­Chhota Rajan was having tremendous news value. He stated that it was likely that number of viewers may be increased by broadcasting such news. 302

416. He stated that he had given the information about the phone call of the accused no.12­Chhota Rajan to his superior Officer. He stated that the news regarding the same was not aired on his channel. He denied that as he did not have any proof about the authenticity of the phone call the news was not aired on his news channel. He stated that in the year 2016 when his statement was recorded by the CBI he was not remembering exact words which were used in his conversation with the accused no.12­ Chhota Rajan. He stated that when the accused no.12­Chhota Rajan phoned him one day prior to recording of his statement he did not tell him that the firing on Arif Sayyad was also done at his instance. He clarified that the accused no.12­Chhota Rajan had told him about this when he had made a phone call on the earlier occasion. He stated that he did not remember when the accused no.12­Chhota Rajan had made the phone call in that regard. He denied that there was no conversation between himself and the accused no.12­Chhota Rajan. He denied that the person calling him on the phone was not the accused no.12­Chhota Rajan.

417. In cross­examination on behalf of the accused nos.5 and 11, he stated that it was his hobby to write blog. He admitted that in the blog he had mentioned about the conversation which had taken place between him and the accused no.12­Chhota Rajan. He stated that he did not record the conversation which had taken place between him and the accused no.12­Chhota Rajan. He stated that at that time he did not have the facility to record any conversation on his mobile phone. He admitted that this was not the first time he had received call from the accused no.12­ Chhota Rajan. He stated that he had personally seen the accused no.12­ Chhota Rajan in Bali when he was arrested in October 2015. He stated that at that time, he saw the accused no.12­Chhota Rajan personally for 303 the first time in his life. He stated that he did not have any one to one interview with the accused no.12­Chhota Rajan at that time. But he stated that there were many Journalists there and they had put questions to the accused no.12­Chhota Rajan. He stated that he had recorded that event but he did not produce that recording before the Police or CBI during the investigation.

418. He admitted that on earlier occasion also he had deposed before the Court regarding his blog and his conversation with the accused no.12­ Chhota Rajan. He stated that he had deposed about his blog in one case and this was the second case in which he was deposing about his blog. He stated that in the blog he had mentioned the date on which he had received the phone call from the accused no.12­Chhota Rajan. He stated that he had received the phone call in the afternoon but he did not remember the exact time at which he had received the phone call. He stated that he did not edit the blog before taking its printout (Exh.788). He stated that he did not mention his mobile number in the blog as the contents of the blog were in the public domain and he did not want to publicize his mobile phone number. He admitted that in the printout of the blog (Exh.788) the date on which he had received the phone call was not mentioned. He stated that he had posted the article on his blog on 16/11/2011 in the evening. He stated that he had received the phone call in the afternoon on that day. He stated that as soon as the article was posted on the blog, the time and date of its posting was automatically generated. He stated that the printout (Exh.788) was taken on 17/11/2011. He stated that he did not remember the exact time when the printout was taken but it was in the morning before he went to the Police Station. He stated that the blog was created on his computer. He admitted that when he received the phone call, he put the first question to the 304 accused no.12­Chhota Rajan. He admitted that thereafter the accused no.12­Chhota Rajan went on answering his questions. He stated that he did not find any ambiguity or confusion in whatever the accused no.12­ Chhota Rajan had told him. He stated that nobody else was present around him when the accused no.12­Chhota Rajan had phoned him and during the time he was talking to him. He admitted that the accused no.12­Chhota Rajan had phoned him as he was the Senior Editor of ABP News.

419. He stated that on 17/11/2011 he did not show his mobile phone to the Police. He stated that the Police also did not tell him to produce his mobile phone at any time. He stated that at that time, the call history of his mobile showed upto 20 received calls. He stated that when he received the phone call from the number +3444 the digits in front of it or after it were not reflected on the screen of his mobile phone.

420. In cross­examination on behalf of the accused no.2, he stated that he was aware about the stage of investigation when he was called by the Police for recording his statement. He stated that from the date of the incident till 17/11/2011, the Police did not make any enquiry with him regarding the incident.

421. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that the blog was his personal space on the Internet in which he used to write his experiences and views on various issues. He stated that the reason for creating a blog was to make people aware about his views and experiences. He stated that he was writing blogs since the year 2007. He stated that at that time, he used to write about 3­4 blogs per month. He stated that he used to get lot of comments from the public on his blog. 305

He stated that he knew PW.78­Sunilkumar Singh, PW.100­Aariz Chandra and PW.87­Nikhil Dixit. He stated that he knew PW.78­Sunilkumar Singh since the year 1996 as at that time, he was working with him in Hindi Daily “Dopeher Ka Samna”. He stated that he was knowing PW.100­Aariz Chandra since the year 2002­03 as he used to meet him whenever they used to come to the Court for covering news. He stated that he was knowing PW.87­Nikhil Dixit since the year 2002 as he was also reporting on crime related matters. He denied that as all of them belonged to the same field they used to regularly meet. He clarified that he used to meet them in relation to Court cases whenever required. He stated that he did not remember whether he had seen the news of PW.78­Sunilkumar Singh pertaining to the murder of J.Dey. He stated that he was aware that PW.78­Sunilkumar Singh had received a call about the murder of J.Dey. He stated that he did not remember the exact date on which he had received the call. He stated that the call may have been received by PW.78­Sunilkumar Singh during the period when he also received the call. He stated that he did not remember whether he had any discussion with PW.78­Sunil Singh about the phone call. He stated that he did not discuss anything with PW.78­Sunilkumar Singh about the phone call received by him (PW.76). He stated that he had met PW.78­Sunilkumar Singh many times after November 2011. He stated that he did not remember whether he had met PW.78­Sunilkumar Singh between July 2011 and November 2011.

422. He stated that he had informed the mother of J.Dey about his murder. He stated that he had firstly met the mother of J.Dey at the time of his funeral and thereafter he had met her once in 2012­2013 while following up the story regarding the murder of J.Dey and thereafter he had then again met her on one occasion when she was not keeping well. 306

He stated that he had met the mother of J.Dey lastly about 2­3 years ago. He stated that he had met PW.7­Ms.Shubha Sharma (wife of J.Dey) on two occasions. He stated that he had firstly met her at the time of funeral of J.Dey and on the second occasion, he had met her at the CSMT station where he was to catch a train. He stated that he did not tell about the phone call to the mother or to PW.7­Ms.Shubha Sharma. He denied that the accused no.12­Chhota Rajan did not make any phone call to him.

423. PW.78­Sunilkumar Singh was working as a Reporter since the year 1993. He deposed that in the year 2005, he joined the 'Channel 7' which later on was known as IBN7. He deposed that thereafter, he joined 'NDTV India' channel and in the year 2011 also he was working with the same news channel. He deposed that the mobile no.7738409480 belonged to him.

424. He deposed that on 01/07/2011 when he was in his Office and working on the story of Niraj Grover murder case, he received a phone call from the number +5032 at about 09:00 pm from the accused no.12­ Chhota Rajan who identified himself as 'Nana'. He deposed that the accused no.12­Chhota Rajan asked him whether he was going to record whatever he was going to say. He deposed that he told the accused no.12­ Chhota Rajan that he will be noting down whatever he says. He deposed that the accused no.12­Chhota Rajan told him that he wanted to tell him about the murder of J.Dey. He deposed that the accused no.12­Chhota Rajan told him that J.Dey had crossed the limits and that he was publishing incorrect news about him and maligning him. He deposed that the accused no.12­Chhota Rajan told him that J.Dey was writing good things about Dawood Ibrahim and bad things about him. He deposed that the accused no.12­Chhota Rajan told him that J.Dey had written that the 307 accused no.12­Chhota Rajan had become financially weak and whether J.Dey was his accountant. He deposed that the accused no.12­Chhota Rajan told him that J.Dey was trying to double cross him. He deposed that the accused no.12­Chhota Rajan also told him that J.Dey had called him to London when he had gone there but he did not go there as his informer from Dubai had told him that it was dangerous for him to go there. He deposed that the accused no.12­Chhota Rajan told him that after returning to India J.Dey had again phoned him on 25/05/2011 or 26/05/2011 and told him that he was going to Philippines and that the accused no.12­ Chhota Rajan should meet him there. He deposed that the accused no.12­ Chhota Rajan told him that he did not give any confirmation to J.Dey about his visit. He deposed that when he asked the accused no.12­Chhota Rajan as to why he targeted a Journalist as they were doing their duty, the accused no.12­Chhota Rajan told him that J.Dey had crossed the limits. He deposed that the accused no.12­Chhota Rajan told him that Journalists should also be within their limits while working. He deposed that the accused no.12­Chhota Rajan told him that if a Journalist crosses his boundary then he should be ready to face the consequences. He deposed that the accused no.12­Chhota Rajan told him as to how J.Dey was maligning his image. He deposed that the accused no.12­Chhota Rajan told him that in the articles written by J.Dey in the daily 'Mid­Day' on 30/05/2011 and 02/06/2011 he had written bad things about him and had created a picture as if he was an anti­national though it was he who had got Riyaz Bhatkal killed in Pakistan. He deposed that when he told the accused no.12­Chhota Rajan that no agency would confirm this fact, the accused no.12­Chhota Rajan told him that he had done his work. He deposed that his conversation with the accused no.12­Chhota Rajan went on for about 30 minutes. He deposed that the accused no.12­Chhota Rajan also talked generally about himself. He deposed that when he asked the 308 accused no.12­Chhota Rajan whether he had asked the accused persons of this case to surrender he replied in the negative and said that it was the work of the Police to arrest the accused persons. He deposed that when he asked the accused no.12­Chhota Rajan whether he had any guilty feeling for killing J.Dey he said that he did not have any such feeling. He deposed that the news about his above conversation with the accused no.12­ Chhota Rajan was aired on the 'NDTV India' news channel.

425. He deposed that after the news was aired, he had received a summon from Police for giving statement regarding the breaking news which was given by him on the 'NDTV India' channel about his conversation with the accused no.12­Chhota Rajan. He deposed that the Police had also asked him to bring a record of news which was aired on the 'NDTV India' news channel regarding his conversation with the accused no.12­Chhota Rajan in a CD and accordingly he had produced the CD (Exh.797) at the time of recording of his statement. When the CD (Exh.797) was played in open Court in presence of all, PW.78­Sunilkumar Singh stated that it was the same CD in which the news which was aired on the 'NDTV India' channel was recorded and which he had given to the Police and that its contents were correct.

426. In cross­examination on behalf of the accused nos.1,6 and 7, he denied that he had call recording facility in his mobile phone at that time. He denied that he did not make any note regarding the conversation which he had with the accused no.12­Chhota Rajan. He stated that he did not feel that the note was an important document. He stated that the Police or the CBI did not enquire with him about the note which he had prepared. He stated that he did not give the note to the Police on his own. He stated that he did not show that note to his superior Officer. He stated 309 that he did not remember whether the Police had conducted any press conference after the arrest of some of the accused persons in this case. He stated that he did not remember whether the other news channels had aired the said press conference. He admitted that he was aware that some of the accused persons of this case were arrested and produced in the Court and that at time he had gone to the Court where the Reporters from other news channels were also present. To a specific question put to him whether the person who phoned him introduced himself 'claiming' to be the accused no.12­Chhota Rajan and not as the accused no.12­Chhota Rajan he assertively answered that the 'NDTV India' news channel had said that a person claiming himself to be the accused no.12­Chhota Rajan had phoned him but he had said that the accused no.12­Chhota Rajan had phoned him.

427. He stated that the 'NDTV India' news channel was not sure whether the accused no.12­Chhota Rajan had phoned him and to avoid legal complications it was mentioned that person claiming to be accused no.12­ Chhota Rajan had phoned him. He admitted that the news that was aired was that a person claiming to be the accused no.12­Chhota Rajan had phoned him. He stated that he did not object for that. He stated that when he had received the phone call from the accused no.12­Chhota Rajan on 01/07/2011 he was in the Office and there were other employees also. He stated that he had not done any course in voice recognition. He denied that at the time of recording of his statement by the Police he did not remember the exact words used in the interview with the accused no.12­ Chhota Rajan and therefore Police did not record the same. He stated that the J.Dey murder case was a sensational news and the news in that regard could have increased the TRP rating of the channel. He denied that he had created a false story to help the Police. He denied that he did not have any 310 conversation with the accused no.12­Chhota Rajan.

428. In cross­examination on behalf of the accused nos.5 and 11, he stated that he did not know what were the digits prefixed or suffixed to the number +5032. He stated that the number was only having the digits +5032. He stated that his statement was recorded by the Police on 06/07/2011. He stated that he had received the summon from the Police in that regard on 04/07/2011. He stated that on 04/07/2011, he did not have the notes which were prepared by him regarding his conversation with the accused no.12­Chhota Rajan as it was already destroyed. He stated that he had spoken to 4­5 persons who were superior to him in his Office about his conversation with the accused no.12­Chhota Rajan. He stated that he could not give their names. He admitted that he was questioning the accused no.12­Chhota Rajan when he was talking about J.Dey. He stated that he had also sought clarification from the accused no.12­Chhota Rajan about the incident and cause of the incident. He stated that he did not remember whether during his conversation with the accused no.12­Chhota Rajan he had used the words “double cross”. He stated that the accused no.12­Chhota Rajan had told him during the conversation that J.Dey was trying to double cross him. He stated that while giving statement to the Police and CBI he did not state that the accused no.12­Chhota Rajan had told him that J.Dey was trying to double cross him.

429. In cross­examination on behalf of the accused nos.3,4, and 12, he stated that he done a Diploma in Journalism and degree course in B.A.. He stated that he was in the field of Journalism since the year 1993. He stated that he had started reporting on crime related matters since the very beginning of his career. He stated that for getting the news, he used to co­ 311 ordinate with the Police and also had his own sources.

430. He stated that he knew PW.100­Aariz Chandra, PW.76­Jitendra Dixit and PW.87­Nikhil Dixit. He stated that he had worked with PW.76­ Jitendra Dixit in the daily 'Dopehar ka Samna' and that he had contact with him since that time. He stated that both of them used to meet each other as and when required. He stated that he was knowing PW.100­Aariz Chandra since the year 2004­2005. He stated that he was in contact with PW.100­Aariz Chandra till the year 2016. He stated that he did not have any conversation with PW.100­Aariz Chandra regarding the 'Breaking news' pertaining to the accused no.12­Chhota Rajan which was aired on the 'NDTV India' news channel. He stated that came to know from the newspapers and from the general discussion amongst the Reporters that PW.100­Aariz Chandra and PW.76­Jitendra Dixit had also received phone calls from the accused no.12­Chhota Rajan. He stated that the “Breaking news” which was aired on the 'NDTV India' news channel first in time. He stated that he did not have information about their news. He stated that he did not have any conversation with PW.100­Aariz Chandra and PW.76­ Jitendra Dixit about the phone calls received by them.

431. He stated that during the conversation with the accused no.12­ Chhota Rajan, in which he had told him that he had killed J.Dey, the accused no.12­Chhota Rajan also told him that Riyaz Bhatkal (member of Indian Mujahdeen) was killed at his instance. He stated that he was not aware whether there was a news item in the daily 'Indian Express' that Riyaz Bhatkal was not killed by the accused no.12­Chhota Rajan and the photographs of the body of Riyaz Bhatkal were morphed. He stated that he did not prepare any news item on the subject of the accused no.12­ Chhota Rajan killing Riyaz Bhatkal. To a specific question as to why he 312 chose to run story on the murder of J.Dey and not Riyaz Bhatkal he answered that the news about the murder of J.Dey was confirmed and it was a big news. He stated that he was not aware that the accused no.12­ Chhota Rajan had given an interview to Deepak Sharma of 'Headlines Today' news channel in the year 2014 denying his involvement in the murder of J.Dey and denying that he had some kidney problem or he was on dialysis.

432. He stated that there were different slots of programs on TV channels such as morning slot, afternoon slot, evening slot and prime slot. He stated that his department was not concerned with the marketing department of his news channel. He stated that the main object of the channels was to earn profit. He stated that the “Breaking news” containing the details of his conversation with the accused no.12­Chhota Rajan was aired after 09:30 pm. He stated that the views of Shri Y.P. Singh (Retd. IPS), Shri Y.C. Pawar (Retd. IPS), PW.68­Sachin Kalbag were taken. He denied that a false “Breaking news” was aired only for generating revenue and increasing TRP of the channel. He denied that the 'NDTV India' news channel earned a lot of revenue because of the telecast of the false news. He denied that there was no conversation between himself and the accused no.12­Chhota Rajan and that he had given statement to the Police only because the “Breaking news” was aired on the channel.

433. He stated that from his channel, he was following this case and he was assisted by his team members. He stated that the Internet calling was done through VOIP. He stated that he had not heard of the number '+3444'. He stated that he did not remember whether he had heard the number +6744, +301 and +432. He stated that he was not aware whether these numbers were prefixes of Internet calling number and they 313 did not belong to any specific mobile number. He stated that he was not aware whether the number +5032 was an Internet calling number and it did not belong to any mobile phone. He denied that he did not receive any phone call from the accused no.12­Chhota Rajan.

434. PW.87­ Nikhil Dixit was working as a Journalist since the year 2000. Till the year 2005 he had worked in various publications such as the daily 'Mid­Day', 'Times of India', 'Aaj Tak' & 'Headlines Today'. In the year 2006, he was working with the news channel 'Times Now' and in August 2006, he joined the daily 'DNA' and worked there till 2016. He deposed that he knew J.Dey. He deposed that in the year 2002, when he was working with the daily 'Times of India' he had met J.Dey and during his early days, he used to seek guidance from J.Dey on how to do reporting in the field of Crime Journalism. He deposed that over a period of time he developed friendship with J.Dey and through him he came in contact with his mother, sister and wife.

435. He deposed that J.Dey was a crime Journalist and he used to cover reports of the underworld. He deposed that J.Dey was very discreet about the sources of his information. He deposed that J.Dey had told him about Farid Tanasha who was working with the accused no.12­Chhota Rajan. He deposed that J.Dey had told him that he used to meet Farid Tanasha at Chembur as he was writing a book on the underworld. He deposed that he also knew the accused no.11­Ms.Jigna Vora as she was also a Journalist. He deposed that he had met her in the year 2006­2007 and at that time, she was working as a Senior Journalist in the daily 'Asian Age'.

436. He deposed that J.Dey had showed him a text message on his phone and told him that the accused no.11­Ms.Jigna Vora had sent a message to 314 him saying “you think you are too smart or what?”. He deposed that J.Dey had told him that the accused no.11­Ms.Jigna Vora did not like the fact that he was in touch with Farid Tanasha who was also the informer of the accused no.11­Ms.Jigna Vora. He deposed that after J.Dey had written a story that after the killing of Osama Bin Laden, Dawood Ibrahim had left Pakistan and that the article was published in the daily 'Mid­Day'. He deposed that after a few days of the publication of the article the accused no.11­Ms.Jigna Vora also published a news report refuting the story published by J.Dey in the daily 'Mid­Day'. He deposed that in that story the accused no.12­Chhota Rajan was interviewed in which he had said that Dawood Ibrahim was very much in Pakistan and that he had not fled Pakistan. He deposed that J.Dey had written a news report about the killing of Arif Bhai who was the driver of Iqbal Kaskar who was the brother of Dawood Ibrahim. He deposed that in that article J.Dey had written that the killing was the handiwork of the gang of the accused no.12­Chhota Rajan and that the accused no.12­Chhota Rajan was aging. He deposed that thereafter also J.Dey had written some articles on the accused no.12­Chhota Rajan in which J.Dey had mentioned that most of the gang members of the accused no.12­Chhota Rajan had left him and they had gone on pilgrimage or somewhere. He deposed that J.Dey was a very private person and that he was not having many friends beyond his professional circle.

437. He deposed that on 18/08/2011 at about 04:00 pm he received a phone call on his mobile number 9930900303 from the number +3444. He deposed that when he picked up the phone call, the caller introduced himself as the accused no.12­Chhota Rajan and told him that he had killed J.Dey because J.Dey was planning to kill him and was also doing a lot of stories against him and his gang. He deposed that when asked him why he 315 was telling all this to him, the accused no.12­Chhota Rajan told him that he was telling all this to him as he was a close friend of J.Dey. He deposed that the accused no.12­Chhota Rajan then disconnected the phone call.

438. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he was annoyed and upset after hearing the news of murder of J.Dey. He denied that as he was annoyed and upset the Police had told him that his help would be required and accordingly he had given his statement. He stated that between 11/06/2011 to October 2011, he did not go to the Police Station on his own to give information about J.Dey which could be of help to the Police during investigation. He denied that J.Dey did not show him any text message from his mobile phone.

439. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that till the year 2011, he had experience of about 9 years of reporting news related to crime. He admitted that he was a close friend of J.Dey. He stated that he had performed the final rites of J.Dey. He stated that he did not tell PW.7­Ms.Subha Sharma (wife of J.Dey) that he had received the phone call from the accused no.12­Chhota Rajan. He stated that J.Dey did not tell him that he was writing any book on Dawood Ibrahim. He voluntarily stated that J.Dey had told him that he was writing a book on the underworld. He stated that the news about his conversation with the accused no.12­Chhota Rajan on phone was not published at any time. He stated that he came to know from news on TV about the involvement of the accused no.12­Chhota Rajan in the murder of J.Dey. He stated that he was not aware whether some persons were claiming that they had received phone call from a person 'claiming' to be the accused no.12­Chhota Rajan. He stated that when he was called for giving statement the Police did not tell him that some persons had claimed that 316 the accused no.12­Chhota Rajan had made a phone call to them claiming responsibility of murder. He stated that when he had informed about the phone call received by him to DCP Shri Deven Bharti he also did not tell him that some persons had also received a phone call from the accused no.12­Chhota Rajan claiming responsibility of the murder of J.Dey. He admitted that while giving statement to the Police he had stated that a person claiming to be the accused no.12­Chhota Rajan had phoned him. He stated that the Police did not seize his mobile phone on which he had received the phone call. He denied that he did not receive any phone call relating to the murder of J.Dey. He denied that as he was a close friend of J.Dey he was deposing falsely to support the case of the prosecution.

440. In cross­examination on behalf of the accused nos.5 and 11, he stated that he had never met the accused no.12­Chhota Rajan personally at any time till today. He stated that prior to 18/08/2011, he might have written some report about the accused no.12­Chhota Rajan and or his gang. He stated that after the year 2006 he did not do any reporting about the gang of the accused no.12­Chhota Rajan. He stated that he was using the mobile number 9930900303 since the year 2007 and it was of Vodafone company. He stated that he did not remember which mobile phone he was using in August 2011. He stated that he did not know whether the mobile phone which he was using at that time had the facility of recording phone calls.

441. He stated that he did not note down the date on which he had received the phone call from the accused no.12­Chhota Rajan. He stated that he did not note down the number from which he had received the said phone call. He voluntarily stated that the number from which he had received the phone call was displayed on his mobile phone in the list of 317 received calls. He stated that he knew many other Police Officers from the Crime Branch by their names. He stated that he had professional contacts with them. He stated that he had informed DCP Shri Deven Bharti on phone on the same day (on the day on which he had received the phone call) about the call received by him from the accused no.12­Chhota Rajan before he had gone to the Police Station for giving his statement. He stated that prior to 18/08/2011, he did not receive any phone call from any person claiming to be the accused no.12­Chhota Rajan. He stated that he did not try to call the accused no.12­Chhota Rajan prior to 18/08/2011. He stated that he did not note down or record the conversation which had taken place between him and the accused no.12­ Chhota Rajan. He stated that he did not ask the accused no.12­Chhota Rajan whether he knew him. He stated that he did not ask him as to who had given his mobile number to him. He admitted that except asking him why he was telling all this to him, he did not put any question to him. He stated that he knew PW.78­Sunilkumar Singh as he was his friend. He stated that he did not remember on which date the news about this case was aired on the 'NDTV India' news channel as presented by PW.78­ Sunilkumar Singh. At the same time, he stated that it was aired prior to 18/08/2011. He stated that he did not remember whether he had seen or heard any news aired by PW.78­Sunilkumar Singh in 'NDTV India' news channel.

442. He stated that he did not remember what was the mobile number of J.Dey in the year 2010. He stated that he was not in regular contact with the accused no.11­Ms.Jigna Vora. He stated that he did not know when J.Dey came in contact with Farid Tanasha for the first time. He stated that he did not remember the exact date on which J.Dey had shown him the text message which was received from the accused no.11­Ms.Jigna 318

Vora. He stated that he did not remember the date on which that text message was sent to J.Dey or received by J.Dey. He deposed that the message contained only the words which were stated by him during his examination­in­chief. He stated that he did not verify the mobile number of the person who had sent the text message or who had received the text message. He then stated that he did not see the text message and that J.Dey had only told him about it. He stated that he did not know the exact contents or the details of the said message. He stated that he did remember the exact date on which the accused no.11­Ms.Jigna Vora had published the news about Dawood Ibrahim leaving Pakistan. He stated that he did not remember whether in the report of the accused no.11­ Ms.Jigna Vora there was any reference of report of J.Dey. He admitted that as J.Dey was in contact with underworld he never used to give prior information his whereabouts and his movements to anybody and that very few Journalist knew about the residential address of J.Dey.

443. He stated that while giving statement to the Police he did not state that J.Dey was working on a book, that he had told him about Farid Tanasha who was working for the accused no.12­Chhota Rajan, that J.Dey told him that he was writing a book on the underworld, that he came to know about the relationship of J.Dey and the accused no.11­Ms.Jigna Vora when he was seeking guidance from J.Dey, that J.Dey had told him that the accused no.11­Ms.Jigna Vora had sent a message to him by saying “you think you are so smart or what?”, that J.Dey told him that the accused no.11­Ms.Jigna Vora did not like that he was in touch with Farid Tanasha who was also the source of the accused no.11­Ms.Jigna Vora.

444. PW.100­Aariz Chandra was working as a Reporter since the year 2001. He was also knowing J.Dey since the year 2001. He deposed that 319 both of them used to meet each other daily and exchange information. He deposed that his mobile number was 9819582444. He deposed that the accused no.12­Chhota Rajan had phoned him on 2­3 occasions in September 2011. He deposed that the accused no.12­Chhota Rajan told him that he had killed J.Dey as he had published an article against him and that he was defaming him. He deposed that when he asked the accused no.12­Chhota Rajan the reason for which he killed J.Dey he gave the same reason. He deposed that when he asked the accused no.12­Chhota Rajan whether he could take his interview, the accused no.12­Chhota Rajan disconnected his phone. He deposed that on the second occasion, accused no.12­Chhota Rajan phoned him on a Sunday at 06:00 pm from the number “+3444” and told him that he regretted that he had killed J.Dey and that he should not have killed J.Dey. He deposed that the accused no.12­Chhota Rajan told him that the accused no.11­Ms.Jigna Vora given him the registration number of the motorcycle of J.Dey. He then stated that he had passed on the RTO registration number of the motorcycle of J.Dey to her. He deposed that when he asked the accused no.12­Chhota Rajan whether he would like to give an interview to him he declined.

445. In cross­examination on behalf of accused nos.1,6 and 7, he stated that the year '2011' was not mentioned in his statement as the year in which he had received the phone calls from accused no.12­Chhota Rajan. He stated that he did not make a note of the conversation which he had with the accused no.12­Chhota Rajan. He stated that in the year 2016, when the CBI made a inquiry with him he did not remember many things due to lapse of time. He stated that no voice sample of accused no.12­ Chhota Rajan was played before him at that time. He stated that he had not done any course in voice analysis. He stated that a mimicry artist 320 could mimic voice of anybody. He denied that the Police had sought his help for implicating accused no.12­Chhota Rajan in this case.

446. In cross­examination on behalf of accused nos.3,4 and 12, he stated that he had not done any course in Journalism but he was working in the field of Journalism since last 19 years out of which he had worked in Mumbai as a Journalist for about 18 years. He deposed that presently he was working with the 'Aaj Tak' channel and Shri Deepak Sharma was the Special Editor of 'Aaj Tak' channel. He stated that he had attended the press conference which was held by the Commissioner of Police after the arrest of the accused persons of this case but he did not remember as to what had happened in that press conference. He stated that he did not know whether Shri Deepak Sharma had interviewed the accused no.12­ Chhota Rajan on 24/05/2014. He stated that he had no occasion to talk to Shri Deepak Sharma regarding that interview as he was his Superior Officer. He stated that the said interview may have been aired on the 'Aaj Tak' channel but he could not recall due to lapse of time. He stated that he was not aware whether in that interview the accused no.12­Chhota Rajan had stated that he had not committed the murder of J.Dey nor he gave any interview to any Journalist in that regard.

447. He stated that he did not know whether the number '+3444' was not a country code. He stated that it was VOIP (Voice Over Internet Protocol). He stated that applications like Skype and Cisco were also on VOIP and could be used for calling. He stated that he did not know whether phone calls could be made through VOIP by one person from Mumbai to another person in Mumbai through Internet. He stated that the VOIP/Internet calls were routed through the servers which were in the USA and in the UK. He stated that a news was aired on the 'Aaj Tak' 321 channel that accused no.12­Chhota Rajan was suffering from kidney failure and that he was undergoing dialysis. He stated that he had joined the 'Aaj Tak' channel as a Reporter in the year 2005 and in due course of time, he was promoted as the Senior Special Correspondent.

448. He stated that as per his information a senior Journalist had already talked with the accused no.12­Chhota Rajan about the murder of J.Dey and the news about that was already aired on that news channel. He stated that as far as he could remember the news of PW.78­Sunilkumar Singh was first aired, then the news of PW.76­Jitendra Dixit was aired and thereafter his news was aired. He admitted that the contents of all the three news items were almost similar. He stated that he knew PW.76­ Jitendra Dixit since the year 2003 and PW.78­Sunilkumar Singh since the year 2000. He stated that all the three of them used to regularly meet but he denied that there was any conversation between them regarding the phone calls received by him from accused no.12­Chhota Rajan. He stated that he had never personally met accused no.12­Chhota Rajan. He stated that prior to September 2011 he had no occasion to talk to accused no.12­ Chhota Rajan. He stated that he had heard the voice of accused no.12­ Chhota Rajan for the first time when he had phoned him in September 2011. He had denied that he came to know that the person who had phoned him was accused no.12­Chhota Rajan only because he claimed to be the accused no.12­Chhota Rajan. He stated that he was sure that the person calling him was accused no.12­Chhota Rajan as he could recognize his voice from the style of introducing himself as 'Nana' and from his voice. He stated that his statement was recorded in September 2011 by the Police and at that time he neither gave his mobile phone to the Police nor the Police asked his mobile phone from him. He denied that he did not receive any phone calls from accused no.12­Chhota Rajan. 322

449. In cross­examination on behalf of accused nos.5 and 11, he admitted that due to lapse of seven years, he did not remember on which date the Police had called him and on which day his statement was recorded by the Police. He admitted that his statement was recorded on 22/10/2011. He stated that the details of calls made, calls received and calls missed could be seen in his mobile phone. He stated that his mobile phone did not have the facility of recording phone calls. He admitted that as J.Dey was also a Reporter it was important for him to collect the news about his murder. He stated that the Reporters were maintaining secrecy about the information collected by them about the murder of J.Dey. He stated that the Reporters wanted to bring something new about the news which was being published. He stated that if the same news was published without any change it affected the TRP of the channels. He stated that he did not remember the exact day or date on which the report of PW.76­ Jitendra Dixit was aired but he had seen that news. He stated that though the said news was aired repeatedly on the channel he did not know exactly how many it was replayed. He stated that he had seen and watched the reports of all the Reporters who were covering this case on all the channels. He stated that he never made any phone call to accused no.12­Chhota Rajan on his own any time. He denied that a false news report was aired to increase the TRP of his channel and to show that something new was introduced in the case.

450. Before analyzing the evidence of PW.76­Jitendra Dixit, PW.78­ Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra, it will be appropriate to have a look at the evidence of PW.50­Indukumar Amin, PW.66­Sahil Joshi and PW.73­Sanjay Prabhakar as their evidence is relevant for the present purposes. 323

451. PW.50­Indukumar Amin was doing construction business at the relevant time. He deposed that on one day one person by name Raju came to him on behalf of accused no.12­Chhota Rajan and made an enquiry with him regarding a property at Mulund. He deposed that Raju gave him a phone number and told him call on that number. He deposed that he did not exactly remember the number but it was like 3444 something. He deposed that the accused no.12­Chhota Rajan called him on his phone number and abused him by saying that “Driver ban gaya kya, jidhar boja udhar so ja” and by saying “Madarchod mar dalta tha tere ko usake saath, mera time kharab chal raha hai chhod dega nahi”.

452. In cross­examination on behalf of accused nos.1,6 and 7, he stated that he did not know the real name of Raju. He stated that the Police did not make any enquiry with him. He denied that he was falsely stating that Raju had met him on behalf of the accused no.12­Chhota Rajan. He denied that he did not receive any phone call. He admitted that while giving statement to the CBI he did not state that the accused no.12­Chhota Rajan had abused him by saying “Madarchod mar dalta tha tere ko usake saath, mera time kharab chal raha hai chhod dega nahi”. He denied that he was deposing falsely due to fear of CBI.

453. In cross­examination on behalf of accused nos.3,4 and 12, he stated that he did not lodge any complaint with the Police regarding being abused by the accused no.12­Chhota Rajan. He stated that accused no.12­ Chhota Rajan abused him in the year 2006. He denied that he was deposing falsely.

454. PW.66­Sahil Joshi was working with 'Aaj Tak' news channel as a 324

Resident Editor at the relevant time. He deposed that he was attached to the 'Aaj Tak' news channel since the year 2001. He deposed that PW.100­ Aariz Chandra was also working as a Senior Special Correspondent with the same TV channel. He deposed that PW.100­Aariz Chandra used to cover news regarding Crime and Court.

455. PW.66­Sahil Joshi deposed that PW.100­Aariz Chandra had told him that he was covering this case and he had received a phone call from the accused no.12­Chhota Rajan. He deposed that PW.100­Aariz Chandra also told him that the accused no.12­Chhota Rajan wanted to talk to him regarding the murder of J.Dey. PW.66­Sahil Joshi further deposed that PW.100­Aariz Chandra also told him that the accused no.12­Chhota Rajan had told him that as he was fearing for his life, he had taken the step to kill J.Dey. He deposed that he (PW.66­Sahil Joshi) told PW.100­Aariz Chandra that the accused no.12­Chhota Rajan had never given any interview to him. He deposed that he asked PW.100­Aariz Chandra as to why the accused no.12­Chhota Rajan was suddenly calling him and telling him all this. He deposed that he told PW.100­Aariz Chandra that the accused no.12­Chhota Rajan had already spoken to a few TV channels and asked him what was the new information which he was going to give. He deposed that PW.100­Aariz Chandra told him that the accused no.12­ Chhota Rajan had told him that accused no.11­Ms.Jigna Vora had given some information about the whereabouts of J.Dey to him. He deposed that he then asked PW.100­Aariz Chandra whether the accused no.12­Chhota Rajan was ready to give any interview or whether he was just giving information. He deposed that thereafter, PW.100­Aariz Chandra again spoke to accused no.12­Chhota Rajan. He deposed that after a day or two PW.100­Aariz Chandra told him that accused no.12­Chhota Rajan was not ready to give any interview. 325

456. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that though there was a possibility that some persons may make a call in the name of the another person to their news channel but he stated that he did not receive any such call. He stated that he did not personally give the information received by him to the Police till his statement was recorded.

457. In cross­examination on behalf of accused nos.5 and 11, he stated that the murder of J.Dey was committed in June 2011 and his statement was recorded in November 2011. He stated that he did not remember the exact date on which the incident had occurred. He stated that at the time of the incident, he was not in India. He stated that the information received by him from PW.100­Aariz Chandra was never aired on TV as it was not authenticated. He voluntarily stated that his TV channel thought that just because accused no.12­Chhota Rajan had named some Journalist it did not mean that the TV channel should trust him without further proof. He stated that he never interacted with accused no.12­Chhota Rajan.

458. He stated that PW.100­Aariz Chandra was working with the 'Aaj Tak' news channel since the year 2004. He stated that he did not remember the exact date on which the PW.100­Aariz Chandra had contacted the accused no.12­Chhota Rajan but it was August 2011. He stated that he did not know whether PW.100­Aariz Chandra had made the phone call to accused no.12­Chhota Rajan or whether the accused no.12­ Chhota Rajan had made phone call to PW.100­Aariz Chandra (This is regarding the second phone call). He stated that he did not remember the exact date on which PW.100­Aariz Chandra had first spoken to the 326 accused no.12­Chhota Rajan. He stated that he did not make any note about the information given to him by PW.100­Aariz Chandra in August 2011. He deposed that he had spoken to PW.100­Aariz Chandra regarding this case on two occasions but he did not remember as to what was the time gap between the two conversations.

459. The learned Advocate for the accused nos.3,4 and 12, adopted the cross­examination which was conducted on behalf of accused nos.5 and 11 and the accused nos.1,6 and 7.

460. PW.73­Sanjay Prabhakar deposed that he was working as a Reporter since the year 1990. He was examined by the prosecution to show that on 07/06/2011, he was in the Uma Palace Bar and Restaurant, Mulund alongwith J.Dey on the invitation of the deceased accused no.8­Vinod Asrani and that he had contact with the accused no.12­Chhota Rajan. But, he did not support the case of the prosecution. In cross­examination by the learned SPP, he denied that in the year 2002­2003 he had requested J.Dey that he wanted to interview a foreign based gangster and he should make an arrangement for the same. He denied that J.Dey told him that deceased accused no.8­Vinod Asrani was in touch with accused no.12­Chhota Rajan and that he could arrange an interview with accused no.12­Chhota Rajan for him. He denied that after a few days, the deceased accused no.8­Vinod Asrani told him on phone told him that he should remain in his Office on a next day and that the accused no.12­Chhota Rajan would contact him on telephone number of his office. At the same time, he admitted that he had received a phone call from a person claiming to be accused no.12­Chhota Rajan and that he had recorded the said conversation and it was aired on the 'NDTV India' news channel. 327

461. In cross­examination on behalf of accused nos.1,6 and 7, he stated that the road in front of the Bar was having two­way traffic. He stated that he did not remember whether vehicles were parked on both the sides of the road. He stated that he did not remember whether the Police was noting down whatever he had said as he was in a state of shock. He stated that sometimes the deceased accused no.8­Vinod Asrani used to arrive ahead at the hotel and sometimes, he used to arrive at the hotel after them. He stated that the name of the Bar to which they had gone was similar to Uma Bar. He denied that he had never gone to Uma Bar with J.Dey.

462. In cross­examination on behalf of accused nos.5 and 11, he stated that he had gone to the Office of the Crime Branch on two occasions in connection with this case. He stated that due to lapse of time he could not remember when his first statement was recorded. He stated that he was pressurized by the Police to give statement and because of that he was under tension and not under proper state of mind.

ANALYSIS 463. It is well settled that a phone call made by an accused to media owning responsibility of the offence would amount to an extra­judicial confession. It is equally well settled that there is no inflexible rule that in no case the evidence of a witness who has identified the accused through his voice form foundation for conviction. The question whether such evidence is or is not sufficient to support the conviction will always depend upon the facts and circumstances of the case. In the present case, considering the fact that the accused no.12­Chhota Rajan had made the extra­judicial confessions on phone, it will have to be seen whether the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil 328

Dixit and PW.100­Aariz Chandra inspires confidence and whether their evidence is sufficient to hold that the phone calls claiming responsibility for the murder of J.Dey were indeed made by the accused no.12­Chhota Rajan. Having said this, it is also necessary to keep in mind that it is not the law that an extra­judicial confession should always be addressed to any particular person.

464. Before analyzing the evidence of PW.76­Jitendra Dixit, PW.78­ Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra, it will be appropriate to answer one question which should arise in the mind of every prudent person. The question is “Why criminals phone to the media and claim responsibility for the crime committed by them?”. The answer to this question is not that difficult. Most often such calls are made to gain attention. Most people like being seen as an authority and getting the attention that makes them feel important. Additionally, a criminal or an accused may want to give his side of a story if he feels that he is being misrepresented as he would not like it if he is put in a false light. It could also be because criminals have a desire to promote themselves. They may not be paid for the interview but they also do not have to pay to the Journalist either. It is an easy way of generating publicity. A criminal would be fairly confident that he will never be caught afterwards as he feels that he is untouchable. Some may not see themselves as criminals but as misunderstood, hard workers being oppressed by the system. The aim of some of others may be to induce mass fear and in turn gain attention and then highlight their motto. Others may want to spread a word of message and to warn the rivals, to attract new funding/sustain old funding, to attract new members/sustain old members and to put fear into those who disagree/dislike the goals of the gang. 329

465. At this stage, it will be appropriate to understand the significance of the numbers +3444, +5032, +301, +432 etc. They are the ILD (International Long Distance) gateways through which the Internet calls are routed. The Internet calls are also known as VOIP (Voice Over Internet Protocol). Whenever a VOIP call is made, the voice of the caller is converted into a digital signal that travels over the Internet. If the call is made on a regular phone number, the signal is converted to a regular telephone signal before it reaches the destination. Whenever an Internet call/VOIP based call is made, the number of the caller is reflected by digits such as +3444, +5032, +301, +432 etc. VOIP allows a person to make a call directly from a computer, a special VOIP phone or a traditional phone connected to a special adapter. Criminals are known to use such gateways as this helps in masking their location. Therefore, the identity of the caller is secret.

466. In so far as the present case is concerned, it has been brought on the record through the evidence of various Nodal Officers that the number +3444 is an international number. It can be from any country. Even the learned Advocate for the accused no.12 has admitted in the written notes of arguments that the number such as +3444 & +5032 are international numbers. More importantly, it is an admitted position on the record that after the year 1993, the accused no.12­Chhota Rajan was not in India.

467. Considering the nature of the objections which are raised challenging the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra, before analyzing the evidence of these witnesses, it will be appropriate to keep in mind certain settled principles of appreciation of evidence of a witness. In the case of Bharwada Bhoginbhai Hirjibhai V. State Of Gujarat reported in 330

AIR 1983 SC 753, the Hon'ble Supreme Court of India has held as under:

“(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross­examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub­conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological defence mechanism 331

activated on the spur of the moment.”

468. In the same case, it has been also held that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance. More so, when the all important "probabilities­factor" echoes in favour of the version narrated by the witnesses.

469. Now, let’s analyze the evidence of PW.76­Jitendra Dixit, PW.78­ Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra.

470. From the evidence of these witnesses, it can seen that PW.78­ Sunilkumar Singh was the first Journalist to whom the accused no.12­ Chhota Rajan had made the phone call and claimed responsibility for the murder of J.Dey. This phone call was received by him on his mobile no.7738409480 on 01/07/2011 at about 09:00 pm from the number +5032. PW.87­Nikhil Dixit was the second Journalist to receive the phone call from the accused no.12­Chhota Rajan in which he confessed to have got killed J.Dey. This phone call was received by him on his mobile no.9930900303 on 18/08/2011 at about 04:00 pm from the number +3444. PW.100­Aariz Chandra was the third Journalist to receive the phone call from the accused no.12­Chhota Rajan in which he confessed to have got killed J.Dey. He had received two phone calls on his mobile no. 9819582444 in August 2011. On both the occasions he received the call from the number +3444. PW.76­Jitendra Dixit was the fourth Journalist to have received the phone call from the accused no.12­Chhota Rajan in which he confessed to have got killed J.Dey. This phone call was received by him on his mobile no.9820703347 on 16/11/2011 at about 09:00 pm from the number +3444. 332

471. The analysis of the evidence of PW.78­Sunilkumar Singh shows that he was in the field of Journalism since the year 1993 and at the relevant time he was working with the 'NDTV India' news channel. This fact was not disputed by the defence in cross­examination. Thus, he was vastly experienced and senior in his field. His evidence that on 01/07/2011 at about 09:00 pm he received a phone call on his mobile number 7738409480 from the accused no.12­Chhota Rajan from the number +5032 and that the duration of the said call for almost 30 minutes in not shattered in any manner during his cross­examination. The fact that during the conversation, he was not only putting questions to the accused no.12­Chhota Rajan when he was talking about J.Dey and but also he was also seeking clarification about the incident and the cause of the incident points towards two things. Firstly, it shows that PW.78­Sunilkumar Singh sure that the caller was none other than the accused no.12­Chhota Rajan. Secondly, and more importantly what this also shows is that the accused no.12­Chhota Rajan was talking freely with him without any fear or pressure of any kind. It has come in the evidence of PW.78­Sunilkumar Singh that he identified the voice of the accused no.12­Chhota Rajan as the accused no.12­Chhota Rajan had called him on earlier occasions also and that he had also heard his voice on other channels. This evidence of his was not shattered in cross­examination. On the contrary, this part of his evidence was got confirmed in his cross­examination. The fact that the caller was none other than the accused no.12­Chhota Rajan was further confirmed by this witness when to a question put to him in cross­ examination to challenge this fact, he stated that the accused no.12­ Chhota Rajan had called him up and not any person 'claiming' to be the accused no.12­Chhota Rajan had called him up on his mobile phone. Thereafter, he again confirmed that on 01/07/2011, when he received the 333 phone call from the accused no.12­Chhota Rajan he was in his office.

472. The evidence of PW.78­Sunilkumar Singh clearly shows that the accused no.12­Chhota Rajan told him that J.Dey had crossed his limits and that while on one hand J.Dey was publishing incorrect news about him and was maligning his image, on the other hand he was writing good things about Dawood Ibrahim. It may also be stated here that from the conversation which had taken place between the accused no.12­Chhota Rajan and PW.78­Sunilkumar Singh it is clear that the accused no.12­ Chhota Rajan was aware about the news articles (Exh.752 colly) which were written by J.Dey and that he was infuriated because of what J.Dey had written about him in those articles.

473. At this stage, it may be noted that as soon as PW.78­Sunilkumar Singh received the phone call from the accused no.12­Chhota Rajan claiming responsibility of the murder of J.Dey, admittedly, the details of the said conversation were almost immediately aired on the 'NDTV India' news channel through the mouth of PW.78­Sunilkumar Singh himself. This conduct of PW.78­Sunilkumar Singh is relevant. Had there been no phone call from the accused no.12­Chhota Rajan claiming the responsibility for the murder of J.Dey, there was no need for the 'NDTV India' news channel to air such a news on their channel and run the risk of ruining their reputation by airing a false news.

474. It may also be noted that the news regarding the call received by PW.78­Sunilkumar Singh claiming responsibility for the murder of J.Dey was aired on the 'NDTV India' news channel on several occasions and for several days. It was seen and heard by the viewers all over the World. Had the said news been false or fake, the 'NDTV India' news channel would not 334 have dared to telecast it due to the fear of being held liable for defamation and damages. It is not the stand of the accused no.12­Chhota Rajan that after the news was aired nationwide on the 'NDTV India' news channel, he initiated any legal action against the said channel or against PW.78­ Sunilkumar Singh alleging that he was defamed. This conduct of the accused no.12­Chhota Rajan is relevant because in normal course if a person is charged of committing such a serious crime, it is expected that he would at least send a legal notice to the new channel. In the present case, nothing appears to have been done by the accused no.12­Chhota Rajan. That apart, there was no retraction of the extra­judicial confession.

475. PW.78­Sunilkumar Singh was sought to be labeled as an interested witness on the ground that it has come in his evidence that after the arrest of some of the accused persons of this case, he was in touch with the Police and that he was getting information about this case from the Police. But, that is not unusual considering the fact that he was reporting crime related matters and that the 'NDTV India' news channel for which he was working was covering this case.

476. During the cross­examination of PW.78­Sunilkumar Singh, a statement was brought on the record that J.Dey murder case was a sensational case and the news in that regard could have increased the TRP ratings of the 'NDTV India' news channel. However, the defence did not bring any evidence on the record to show that after PW.78­Sunilkumar Singh had received the phone call from the accused no.12­Chhota Rajan and after it was aired on the 'NDTV India' news channel the TRP ratings of the 'NDTV India' news channel had indeed increased.

477. The analysis of the evidence of PW.87­Nikhil Dixit shows that he 335 was working as a Journalist since the year 2000. Thus, like PW.78­ Sunilkumar Singh he was also very experienced in his field. His evidence that on 18/08/2011, at about 04:00 pm he received a phone call on his mobile number 9930900303 from the accused no.12­Chhota Rajan from the number +3444 claiming responsibility for the murder of J.Dey was also not shattered in cross­examination. He has clearly stated that the accused no.12­Chhota Rajan told him that he had killed J.Dey as J.Dey was planning to kill him and that he was also writing a lot of stories against his gang. His evidence of this point was also not dented in any manner in cross­examination. Interestingly, though during cross­ examination on behalf of the accused no.12­Chhota Rajan a suggestion was given to this witness that he did not receive any phone call relating the murder of J.Dey which of course the witness denied. No specific suggestion was given to him that the accused no.12­Chhota Rajan did not make a phone call to him 'owing responsibility for the murder of J.Dey'. At this stage, it may be noted that PW.87­Nikhil Dixit has rightly stated that he cannot prove that the phone call dated 18/08/2011 was made by the accused no.12­Chhota Rajan because this the job of the Investigating Agency.

478. According to the learned Advocate for the accused no.12, the conduct of PW.87­Nikhil Dixit is suspicious as though it has come in the cross­examination of PW.87­Nikhil Dixit that he was a close friend of J.Dey and he had performed the last rites of J.Dey that he did not tell the wife (PW.7) of J.Dey about the phone call received by him from the accused no.12­Chhota Rajan. However, no explanation was sought from him by the defence as to why he did not tell this fact to the wife (PW.7) of J.Dey. That apart, it cannot be forgotten that as on 18/08/2011, the news about the accused no.12­Chhota Rajan making phone call to PW.78­ 336

Sunilkumar Singh claiming responsibility for the murder of J.Dey was already in public domain. PW.7­Ms.Subha Sharma was a also a Reporter. Therefore, in all probability she was already aware that the accused no.12­ Chhota Rajan had already claimed responsibility for the murder of J.Dey. Therefore, it would not have mattered even if PW.87­Nikhil Dixit had told her about the phone call received by him from the accused no.12­Chhota Rajan claiming responsibility for the murder of J.Dey. Further, PW.7­ Ms.Shubha Sharma was never questioned on this aspect of the matter. Therefore, there is no reason to suspect the evidence of PW.87­Nikhil Dixit.

479. It has come in the evidence of PW.87­Nikhil Dixit that the news about the fact he had received a phone call from the accused no.12­ Chhota Rajan was never published. But the evidence of PW.87­Nikhil Dixit cannot be doubted on that ground. It must be noted that at the relevant time, he was an employee in the DNA newspaper. Therefore, he was no one to take the decision whether the news about the phone call from the accused no.12­Chhota Rajan should be published or not. That apart, no explanation was sought from him as to why the said news was not published. Also, merely because the news was not published anywhere does not mean that he did not receive any phone call from the accused no.12­Chhota Rajan claiming the responsibility for the murder of J.Dey. It may be noted that in the cross­examination of PW.87­Nikhil Dixit it was brought on the record that he had informed DCP Deven Bharti about the receipt of the phone call by him and it is only thereafter that he was called by the Police for enquiry and for recording his statement. This further shows that he was speaking the truth.

480. The analysis of the evidence of PW.100­Aariz Chandra shows that 337 he had received phone calls from the accused no.12­Chhota Rajan on his mobile no.9819582444 on 2­3 occasions and with regard to the murder of J.Dey he had received two phone calls from the accused no.12­Chhota Rajan. It has further come in his evidence that on the first occasion when the accused no.12­Chhota Rajan called him up, he told him that he killed J.Dey as J.Dey was defaming him. It has also come in his evidence that when he asked the accused no.12­Chhota Rajan as to why he killed J.Dey, he gave the same reason. It has further come in the evidence of PW.100­ Aariz Chandra that on the second occasion he received a phone from the accused no.12­Chhota Rajan at about 06:00 pm from the number +3444 and at that time the accused no.12­Chhota Rajan told him that he regretted the fact that he had killed J.Dey and that he should not have killed J.Dey. In cross­examination, he has again confirmed the fact that the person who had made the call was none other than the accused no.12­ Chhota Rajan as he could recognize the voice from the style of introducing himself as “Nana” and his voice. The statement made by PW.100­Aariz Chandra that while giving statement to the Police that during the second conversation, the accused no.12­Chhota Rajan told him that he regretted killing J.Dey and that he should not have killed J.Dey is tried to be brought out as an omission. It is well settled that merely because the witness has not given all the details in his statement u/s.161 or u/s.164 Cr.P.C,1973 is no ground to reject the evidence of such witness. Also, by and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. In so far as PW.100­Aariz Chandra is concerned, his evidence on material points cannot be said to be suspicious in view of the above alleged omissions. In any case, the maxim “falsus in uno falsus in omnibus” is not applicable in India. 338

481. It may also be noted here that in the examination­in­chief, PW.100­ Aariz Chandra has stated that he had received the two phone calls from the accused no.12­Chhota Rajan in September 2011 and the second phone call was received by him on a Sunday. However, during the course of his evidence, it has come on the record that he had received the phone calls in August 2011 and it is only after he had received the phone calls that he was summoned by the Police in August 2011. These are minor discrepancies which are bound to appear in statements of truthful witnesses as memory sometimes plays false. These discrepancies do not shatter the evidence of PW.100­Aariz Chandra regarding receipt of the two phone calls from the accused no.12­Chhota Rajan. The evidence of PW.100­Aariz Chandra on this point is duly corroborated by the oral evidence of PW.66­Sahil Joshi to whom PW.100­Aariz Chandra had immediately informed about the said phone calls. There is nothing to disbelieve the evidence of PW.66­Sahil Joshi in this regard.

482. At this stage, it may be noted that during the course of cross­ examination on behalf of the accused no.12­Chhota Rajan, this witness was asked whether he was aware that Shri Deepak Sharma (From 'Aaj Tak' news channel) had taken interview of the accused no.12­Chhota Rajan on 24/05/2014 in which the accused no.12­Chhota Rajan denied that he had any role to play in the murder of J.Dey. PW.100­Aariz Chandra denied having the knowledge about the said interview. From the above, it can be said that the stand taken by the accused no.12­Chhota Rajan was that he had retracted the extra­judicial confession during an interview given by him to Shri Deepak Sharma of 'Aaj Tak' channel. But the evidence in that regard was not produced. This evidence was very important from the point of view of the accused no.12­Chhota Rajan. The learned Advocate for the accused no.12 had taken efforts to place on 339 record various news articles written by J.Dey to show that J.Dey might have been murdered by someone else. Therefore, nothing prevented him from placing on record, the evidence regarding the alleged interview in which he denied having committed the murder of J.Dey. But, no efforts were made in that regard. Therefore, it has to be said that the stand taken by the accused no.12­Chhota Rajan is false.

483. It has also come in the evidence of PW.100­Aariz Chandra that he did not do any course in voice analysis. On the basis of the same, it was argued that PW.100­Aariz Chandra could not have identified the voice of the accused no.12­Chhota Rajan. The said submission has no basis. The defence has not brought on the record whether any such course is available in India. That apart, PW.100­Aariz Chandra was not examined to identify the voice of the accused no.12­Chhota Rajan. He was a witness to whom the accused no.12­Chhota Rajan had made phone calls and confessed that he had killed J.Dey. He identified the voice of the accused no.12­Chhota Rajan as the caller had introduced himself as the accused no.12­Chhota Rajan. He had received phone calls from the accused no.12­ Chhota Rajan not once but twice. Therefore, he was in a position to recognize the voice of the accused no.12­Chhota Rajan. There is nothing on the record to even prima facie suggest that somebody else might have called up PW.100­Aariz Chandra claiming to be the accused no.12­Chhota Rajan. Hence, the evidence of PW.100­Aariz Chandra cannot be suspected on this ground.

484. It has also come in the evidence of PW.100­Aariz Chandra that he never made any phone calls to the accused no.12­Chhota Rajan. But, the defence has not brought on the record any reason as to why PW.100­Aariz Chandra should have called the accused no.12­Chhota Rajan. 340

485. The analysis of the evidence of PW.76­Jitendra Dixit shows that at the relevant time, he was holding a senior position in the 'Star News' channel. This fact was not disputed by the defence in cross­examination. It has come in his evidence that wherever possible the information received by him from the Police used to be verified before it was aired. This shows that he was a responsible correspondent. His evidence that on 16/11/2011 he had received a phone call on his mobile number 9820703347 from the accused no.12­Chhota Rajan from the number +3444 and that the accused no.12­Chhota Rajan claimed the responsibility for the murder of J.Dey was not dented in any manner during the cross­examination. Further, on being asked by the defence, he has also stated that when he received the call from the number +3444 the digits in front of it or after it were not reflected on the screen of his mobile phone. These facts further confirm that PW.76­Jitendra Dixit had indeed received a phone call from the number +3444. He received the said phone call sometime in the afternoon and in the evening he wrote and posted the contents of his conversation on his blog “Address to the Universe” on his website “www.jitendradiary.blogspot.com”. When the Police came to know about his conversation with the accused no.12­Chhota Rajan, he was immediately summoned on the next day i.e. on 17/11/2011 for enquiry and after his enquiry, his statement was recorded. At that time, he gave the printout of the blog (Exh.788) to PW.143­ACP Duraphe. This fact is confirmed by PW.143­ACP Duraphe in his evidence. The evidence of PW.76­Jitendra Dixit also shows that he used to regularly write blogs on his website. In fact, he was writing blogs since the year 2007. Therefore, it cannot be said that he created his website and the blog only for the purposes of the present case to oblige the Police. On the contrary, in the cross­examination, it has been brought on the record that it was his hobby 341 to write blog. Not only this, the defence has relied upon his other blogs (Exh.1369 colly) in support of their stand.

486. The evidence of PW.76­Jitendra Dixit was sought to be doubted on the ground that he was very close to the Police and in collusion with the Police he has falsely implicated the accused no.12­Chhota Rajan. The said submission is required to be rejected. It was not unusual for him to be in touch with the Police considering the fact that he was a crime Reporter and they need to be in touch with the Police to get the information which they want. But that does not mean that PW.76­Jitendra Dixit was under the control of the Police. There is nothing to suggest that he was compelled to write the blog (Exh.788) on 16/11/2011 at the instance of the Police. In fact, during his cross­examination, a suggestion was given to him that he was deposing falsely at the instance of the Police. But the same was emphatically dismissed by him. The fact that he was called by the Police after he had written the blog (Exh.788) is the testimony of the fact that prior to 17/11/2011 he had no contact whatsoever with the Police with respect to this case. So also, there is nothing to suggest that just prior to writing the blog (Exh.788) he was in touch with the Investigating Officer of this case. As stated earlier, when an accused claims to be falsely implicated he has to lay down a factual foundation for the same and prove it by leading impeccable evidence. But, no evidence was led in that regard.

487. During the cross­examination of PW.76­Jitendra Dixit he has stated that he did not undergo any course in recognition of voice samples. A similar question was put to PW.100­Aariz Chandra in his cross­ examination. While analyzing the evidence of PW.100­Aariz Chandra this Court has already considered and rejected the submission. 342

488. As stated earlier, after the receipt of the phone call from the accused no.12­Chhota Rajan claiming responsibility of the murder of J.Dey, PW.76­Jitendra Dixit had posted the contents of his conversation in his blog “address to the Universe” on his website “www.jitendradiary.blogspot.com”. This immediate conduct of PW.76­ Jitendra Dixit in posting the contents of the conversation on his blog is relevant. The contents of the blog (Exh.788) corroborate the oral evidence of PW.76­Jitendra Dixit. It has come in his evidence that before taking the printout of the blog (Exh.788) he did not edit the contents of the blog. This shows that the contents of the blog were not tampered with.

489. It may be noted that the blog (Exh.788) does not bear the date on which it was written. But there is a reason for it. The blog was written on the same day on which the phone call was received. The starting two lines of the blog (Exh.788) itself shows that it was written on 16/11/2011. The contents of the blog were written in present tense. Further, it has come in his evidence that he had taken the printout of the blog (Exh.788) on the next day of the receipt of the phone call which also means that he had written the blog (Exh.788) on the same day on which he had received the phone call from the accused nos.12­Chhota Rajan. In any case, there is nothing suspicious in his evidence. Further, it is not the stand of the defence that the contents of the blog were imaginary and false. There is no evidence to even prima facie suggest that PW.76­Jitendra Dixit had any motive to create a false blog. He had no axe to grind against the accused no.12­Chhota Rajan. In fact, by posting such news he risked his career and possibly his life as had the contents of the blog (Exh.788) were false, the accused no.12­Chhota Rajan would not have spared him. 343

490. It may be noted that it has come in the evidence of PW.76­Jitendra Dixit that when the accused no.12­Chhota Rajan was arrested at Bali, Indonesia many Reporters including him had gone there. It has been brought out in his cross­examination that though at that time, he did not have any one to one interview with the accused no.12­Chhota Rajan many Reporters had put questions to the accused no.12­Chhota Rajan. Obviously, at that time, he must have heard the voice of the accused no.12­Chhota Rajan when he gave the answers to the questions which were put to him. Thus, he had another occasion to hear the voice of the accused no.12­Chhota Rajan as he was in front of him. It is not the stand of the case of the defence that the voice of the accused no.12­Chhota Rajan which was heard by PW.76­Jitendra Dixit at Bali, Indonesia was not the same voice which was heard by him when the phone call was made to him.

491. It may be noted that when the extra­judicial confessions were made admittedly, the accused no.12­Chhota Rajan was not in India. He was not under the control of any investigating/vigilance authority of India. He was a free man. His movements were not controlled by the Indian law enforcement agencies. As he was located hundreds of miles away from India and Mumbai he had no fear of the Indian law enforcement agencies. He was not in a position of weakness. As he did not feel threatened in any manner by the Indian law enforcement agencies or any other agency, he called PW.78­Sunilkumar Singh and other witnesses and told them the truth. In this background, if the news regarding the phone call made to these witnesses was really a fake news then nothing prevented him from immediately picking up his phone and calling the media denying his involvement in the murder of J.Dey. But he did not do so. 344

492. It is also necessary to note that the Indian law enforcement agencies well aware of the fact that the accused no.12­Chhota Rajan was not in India and not accessible to them. They were not in a position to catch hold of him. It is the case of the defence itself that this was a sensational case. Therefore, if the Police or the Crime Branch wanted to win accolades and awards, then to show instant result, they could have easily implicated any notorious gangster who was operating from Mumbai at that time. There was no need to falsely implicate the accused no.12­Chhota Rajan in this case when the authorities were aware that he could not be arrested at that time. Therefore, the possibility of false implication of the accused no.12­ Chhota Rajan is totally ruled out.

493. During the cross­examination of some of these witnesses, the defence has taken a stand that somebody must have mimicked the voice of the accused no.12­Chhota Rajan. But, there is no evidence in that regard. It is also necessary to note that there is nothing on the record to suggest that PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra were regularly receiving phone calls from a 'person claiming to be' the accused no.12­Chhota Rajan. There is also nothing on the record to suggest that they were receiving any bogus phone calls in other cases from other accused persons. Further, the defence could not point out any instance in any other case where the witnesses claimed that they had received any phone call from any particular person claiming responsibility of a particular act which later on turned out to be a false claim by those witnesses. Therefore, the stand taken by the defence cannot be accepted.

494. At this stage, it is required to be stated that during the evidence of PW.73­Sanjay Prabhakar also, it has come on the record that on one 345 occasion he had received a phone call from a person claiming to be the accused no.12­Chhota Rajan albeit in a different context. PW.73­Sanjay Prabhakar was a news Reporter and a friend of J.Dey. Through the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra, the prosecution has already proved that it was the accused no.12­Chhota Rajan who made the phone calls. The evidence of PW.73­Sanjay Prabhakar corroborates the fact that the accused no.12­Chhota Rajan had access to the people from the media. Therefore, it was not unusual for him to make the phone calls to persons from media and claim responsibility for the murder of J.Dey.

495. It may be noted that the phone calls were made by the accused no.12­Chhota Rajan to PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra independently. It has come on the record that these witnesses were knowing each other. This is not unusual as they all were working in the same field at the relevant time. What is important is that there is no material to even prima facie suggest that there was any previous concert between these witnesses to implicate the accused no.12­Chhota Rajan in this case. The CDRs of their mobile numbers of PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­ Aariz Chandra (Exh.1059, 1124 & 1128) are on the record. The defence has not been able to show from the CDRs that these witnesses were in contact inter se at any time just before the receipt of the phone call by any of them. As stated earlier, these witnesses were independent witnesses. The evidence of these witnesses shows that they never discussed official matters with each other. It is not unusual for Journalists/Reporters not to disclose the news on which they are working on. This is for the reason that every Journalist/Reporter and news channel wants to be one step ahead of his/its competitor and for that purpose they maintain 346 secrecy/confidentiality about the same. Also, there are always written/unwritten protocols which every employee has to follow to maintain secrecy/confidentiality about his work. Therefore, the fact that these witnesses did not talk with each other about the phone calls received from the accused no.12­Chhota Rajan claiming responsibility for the murder of J.Dey is insignificant. Further, there is absolutely no material on the record to suggest that they have any animus against the accused no.12­Chhota Rajan or they were personally interested in this case. There is nothing in their evidence to indicate that they may have a motive for attributing an untruthful statement to the accused no.12­Chhota Rajan.

496. It may also be noted that J.Dey was a reputed Journalist. Admittedly, he had written several articles against the accused no.12­ Chhota Rajan and his gang. His murder and subsequent phone calls made by the accused no.12­Chhota Rajan to PW.78­Sunilkumar Singh, PW.76­ Jitendra Dixit, PW.87­Nikhil Dixit and PW.100­Aariz Chandra who were also doing reporting work for different news channels was with an intention of warning the media to desist from writing and posting/airing any negative news against him in the media. The accused no.12­Chhota Rajan chose these witnesses to make the phone call as they were very experienced in their field. It is well known that Journalists who report about crime are always in contact with the criminals for getting the first hand information about the activities of the criminals. Similarly, it is not difficult for a person leave alone a criminal to get the telephone/mobile number of a Journalist. Therefore, the fact that the accused no.12­Chhota Rajan made phone calls to PW.78­Sunilkumar Singh, PW.76­Jitendra Dixit, PW.87­Nikhil Dixit and PW.100­Aariz Chandra claiming responsibility for the murder of J.Dey cannot be said to be unnatural. Also, the media was the easiest and the fastest mode for telling the whole world 347 about the strength of the gang of the accused no.12­Chhota Rajan and what could be the fate of Journalists and other persons who worked against his interests. Therefore, he first made a call to PW.78­Sunilkumar Singh and claimed responsibility for the murder of J.Dey. Being a news Reporter, PW.78­Sunilkumar Singh immediately reported the matter to his superiors and then the said news was aired on the 'NDTV India' news channel. It was aired on that channel many times and for many days. This news not only invited the attention of the public in India but also probably the public world over. This was the easiest way for the accused no.12­ Chhota Rajan to tell the world that he was supreme and still strong. Then, just to ensure that this news does not die easily he chose make phone calls to PW.76­Jitendra Dixit, PW.87­Nikhil Dixit and PW.100­Aariz Chandra claiming responsibility for the murder of J.Dey.

497. According to the learned Advocate for the accused nos.5 and 11, the evidence of PW.78­Sunilkumar Singh and PW.100­Aariz Chandra cannot be relied upon as after the phone call was received by him from the accused no.12­Chhota Rajan the Investigating Officer did not check their mobile phones to find out whether they had really received any phone call from the no.+5032 and +3444 respectively. The submission cannot be accepted. There is no requirement of law that the Investigating Officer should check the mobile phone to find out whether any phone call was received from any particular number. That apart, in the present case the oral evidence of PW.78­Sunilkumar Singh and PW.100­Aariz Chandra is duly corroborated by the CDRs of their mobile numbers which also shows that on 01/07/2011 at about 09:00 pm PW.78­Sunilkumar Singh had received a phone call from the no.+5032 and on 25/08/2011 and 27/08/2011, PW.100­Aariz Chandra had received phone calls from the no.+3444. 348

498. The fact that the accused no.12­Chhota Rajan was using the number 3444 is further clear from the evidence of PW.50­Indukumar Amin. It has come in his evidence that in the year 2011, one person by name Raju had come to him on behalf of accused no.12­Chhota Rajan and gave him a phone number like 3444 and told him to call on that number. It has further come in his evidence that the accused no.12­Chhota Rajan called him on his phone number and abused him. This evidence of PW.50­ Indukumar Amin was not challenged in his cross­examination. Thus, his evidence also shows that the accused no.12­Chhota Rajan was using the number 3444. PW.50­Indukumar Amin was an independent witness. He was not associated with PW.76­Jitendra Dixit, PW.87­Nikhil Dixit and PW.100­Aariz Chandra. Therefore, his evidence further strengthens the case of the prosecution that the accused no.12­Chhota Rajan was using that no.+3444.

499. According to the learned Advocate for the accused nos.5 and 11, the oral evidence of PW.87­Nikhil Dixit cannot be relied upon as he did not prepare any notes of conversation about the phone call received by him from the accused no.12­Chhota Rajan. There is no requirement of law that whenever any person receives a phone call he should make a note about it. That apart, it is not the case of defence that the memory of PW.87­Nikhil Dixit was so weak that he was required to make a note of whatever he heard or saw. Hence, the submission as made cannot be accepted.

500. It was next argued by the learned Advocate for the accused nos.5 and 11 that while giving statement to the Police, PW.100­Aariz Chandra did not tell the Police about the number from which he had received the 349 phone calls. The overall analysis of the evidence of PW.100­Aariz Chandra will show that he was a truthful witness. The fact that he had received phone call from the accused no.12­Chhota Rajan on two occasions has been proved by the prosecution. His oral evidence is further corroborated the oral evidence of PW.66­Sahil Joshi and by CDR of his mobile number which shows that he had received two calls from the no.+3444 on 25/08/2011 and 27/08/2011 respectively. PW.76­Jitendra Dixit and PW.87­Nikhil Dixit had also received the phone call from the accused no.12­Chhota Rajan from the same number. The perusal of the evidence of the above named witnesses will show that no specific suggestion was given during cross­examination that the accused no.12­Chhota Rajan was not using the no.+3444 or +5032. Under such circumstances merely because, while giving statement PW.100­Aariz Chandra forgot to give the number from which he has received the phone call does not affect his credibility.

501. According to the learned Advocate for the accused no.12, the oral evidence of PW.78­Sunilkumar Singh is not reliable as it has come in his evidence that though he had prepared the note regarding the conversation which he had with the accused no.12­Chhota Rajan, he destroyed that note and this creates serious doubt about the truthfulness of the evidence of PW.78­Sunilkumar Singh. As stated earlier, the law does not require that whenever a person receives a phone call he should prepare at note of the conversation. Further, no explanation was sought from PW.78­ Sunilkumar Singh as to why he had destroyed the handwritten note though he was questioned on other aspects related to the note prepared by him. It is quite possible that PW.78­Sunilkumar Singh destroyed the handwritten note as news about this conversation with the accused no.12­ Chhota Rajan was aired on the 'NDTV India' news channel. It is an 350 admitted position that the said news was aired on that channel for several days. Perhaps, because of that PW.78­Sunilkumar Singh may have thought that there was no use of the handwritten note. That apart, had the handwritten note been produced it would have only been a corroborative piece of evidence. In the present case, it has already been observed above that the evidence of PW.78­Sunilkumar Singh is reliable and trustworthy and there is no need to doubt the same. His evidence is further corroborated by the relevant entry in the CDR of his mobile number which shows that on 01/07/2011 at about 09:00 pm he had received a phone call from the number +5032.

502. It was also argued that none of the witnesses recorded the conversation which they had with the accused no.12­Chhota Rajan on their phone. The said submission cannot be accepted. Firstly, none of these witnesses were asked as to why they did not record the conversation which they were having with the accused no.12­Chhota Rajan on their mobile phone. Secondly, the incident in question took place in the year 2011. At that time, the mobile technology was not so advanced and most of the mobile phones did not have the facility of recording calls. Assuming for a moment that there was recording facility in the mobile phones of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra, it would have been too much expect from them to record the conversation which they were having with the accused no.12­ Chhota Rajan at that time as their concentration would have been focused on what the accused no.12­Chhota Rajan was telling them.

503. According to the learned Advocate for the accused no.12, the evidence of PW.76­Jitendra Dixit is also not reliable as from his evidence it appears that he was having a interest in the investigation and outcome of 351 this case. By placing reliance on the blogs (Exh.1369 colly.) the learned Advocate for the accused no.12 tried to show that PW.76­Jitendra Dixit was very close to J.Dey and that he was hurt by the sudden death of J.Dey. Therefore, in view of the press conference which was held by the Police on 27/06/2011, PW.76­Jitendra Dixit came to the conclusion that the murder of J.Dey was committed at the instance of accused no.12­Chhota Rajan. The said submission is without any basis. PW.76­Jitendra Dixit was an independent witness. Just because he happened to be a friend of J.Dey it will not mean that he was personally interested in this case. To draw such inference there must be some evidence. But, there is none. That apart, it cannot be forgotten that Journalists and especially those who are reporting crime related matters tend to give their own views on the cases which are known to them. But, they are not experts. Their views will never prevail over the material collected by the Investigating Officer during the course of investigation. As such, though a Journalist may give his opinion on a particular case, his opinion cannot be given any value.

504. According to the learned Advocate for the accused no.12, the oral evidence of PW.76­Jitendra Dixit is also not reliable as the prosecution has not clarified as to from where he had procured the voice sample of the accused no.12­Chhota Rajan. The said submission has no basis. If there was any dispute about this, the learned Advocate for the accused no.12 could have very well PW.76­Jitendra Dixit from where he got the voice samples of the accused no.12­Chhota Rajan. Further, it may be stated that the videos of the accused no.12­Chhota Rajan are freely available on the Internet and anybody can watch and listen to the voice of the accused no.12­Chhota Rajan. There is no need to read much into this.

505. According to the learned Advocate for the accused no.12, the oral 352 evidence of PW.87­Nikhil Dixit is also not reliable as he had received the phone call from the accused no.12­Chhota Rajan for the first time. It was contended that as no voice identification procedure was done at any stage and that he was not made to hear the voice of the accused no.12­Chhota Rajan to get the confirmation on the point of familiarity, tone, accent etc. the bare statement of PW.87­Nikhil Dixit cannot be relied upon. In this regard, it must be stated that it is an admitted position that from the year 1993 till October­2015, the accused no.12­Chhota Rajan was not in India. Therefore, no Indian Agency could have taken his voice sample for the purposes of investigation. Therefore, there was no question of confronting PW.87­Nikhil Dixit or for that matter PW.76­Jitendra Dixit, PW.78­ Sunilkumar Singh and PW.100­Aariz Chandra with the voice sample of the accused no.12­Chhota Rajan.

506. It may be noted that after the arrest of the accused no.12­Chhota Rajan and in view of the order passed by this Court, the voice sample of accused no.12­Chhota Rajan was collected on 22/02/2016. The said voice sample was collected for the purposes of comparing it with the record of conversation between PW.90­Manoj Shivdasani and the accused no.12­ Chhota Rajan which was intercepted in the year 2011. It may also be noted that during the course of evidence of PW.152­IO CBI no explanation was sought from him as to why during the further investigation which was conducted PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra were not confronted with the voice sample of the accused no.12­Chhota Rajan for confirming the fact that a person who had called them on phone and who had confessed to the murder of J.Dey was none other than the accused no.12­Chhota Rajan. Further, even if PW.152­IO CBI had taken this step, then it would have been argued that was only done to improve the case of the prosecution. 353

That apart, as stated earlier, there is nothing in the evidence of these witnesses to show that they had any reason to falsely implicate the accused no.12­Chhota Rajan in this case. Therefore, merely because the voice identification parade was not conducted is no reason to disbelieve the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­ Nikhil Dixit and PW.100­Aariz Chandra.

507. According to the learned Advocate for the accused no.12, the oral evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra with regard to the extra­judicial confessions made by the accused no.12­Chhota Rajan to them cannot be relied on the ground that the duration of the alleged conversation of the accused no.12­Chhota Rajan with these witnesses was long but in the examination­in­chief, these witnesses have not disclosed about their entire conversation with the accused no.12­Chhota Rajan. According to the learned Advocate for the accused no.12, the duration of conversation of the accused no.12­Chhota Rajan with PW.76­Jitendra Dixit was approximately 26 minutes, with PW.78­Sunilkumar Singh it was approximately 30 minutes, with PW.87­Nikhil Dixit it was approximately 17 minutes and with PW.100­Aariz Chandra it was approximately 18 minutes (first call) and 19 minutes (second call). On the basis of the above it was submitted that these witnesses have suppressed the other details of their conversation with the accused no.12­Chhota Rajan. Relying upon the judgment in the case of Heramba Brahma and another V. State of Assam reported in AIR 1982 SC 1595, it was also contended that the various extra­judicial confession are vague and ambiguous. The said submissions made above have no basis. Firstly, it cannot be forgotten that these witnesses deposed before the Court after about 6 years of the incident. Human mind is not a tape recorder which records what has been 354 spoken word by word. The witness is expected to say as nearly as possible the actual words spoken by the accused to rule out possibility of erroneous interpretation of any ambiguous statement. If word by word repetition of the statement is insisted upon, then in most cases the extra­judicial confession will have to be discarded. That cannot be a requirement in law. There can be some persons who may very good memory and they may be able to state the exact word and there may be persons who had normal memory and who can only say important aspects of the conversation. In so far as the present case is concerned, PW.76­Jitendra Dixit, PW.78­ Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra were not expected to give each and every details of their conversation which they had with the accused no.12­Chhota Rajan in the year 2011. The statements made by them regarding the extra­judicial confession made by the accused no.12­Chhota Rajan to them are consistent. Their evidence could not be shattered in cross­examination. Further, if at all, the learned Advocate for the accused no.12 was interested in knowing the other details of the conversation between the accused no.12­Chhota Rajan and the above mentioned four witnesses, then nothing prevented him from asking these witnesses about the same. But, that was not done though the witnesses were exhaustively cross­examined. In so far as the other aspect is concerned, the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra regarding the extra­ judicial confessions made by the accused no.12­Chhota Rajan to them is clear. There is no ambiguity in the same. Hence, the judgment in the case of Heramba Brahma (supra) is of no use to the defence.

508. On the same point, the learned Advocate for the accused no.12 also relied upon the judgment in the case of Aloke Nath Dutta (supra). This Court has gone through the said judgment. It may be stated that the facts 355 of that case are entirely different from the facts of the present case. Therefore, the said judgment is not applicable to the present case. However, in the said case, the Hon'ble Supreme Court of India while dealing with the law on extra­judicial confession has referred to several judgments which in fact further the case of the prosecution rather than the stand of the defence. The relevant paragraphs of the above judgment are reproduced below for ready reference:

“31. In State of Rajasthan v. Raja Ram [(2003) 8 SCC 180], it was held:

"19. An extra­judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra­judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra­judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.

It was further observed :

"20. If the evidence relating to extra­judicial confession is found 356 credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by the learned counsel for the respondent­accused, is a matter of prudence and not an invariable rule of law."

32. In the case of Gagan Kanojia and Anr. v. State of Punjab [Criminal Appeal Nos. 561­62 and 563 of 2005, decided on 24.11.2006, this Court opined:

"Extra­judicial confession, as is well­known, can form the basis of a conviction. By way of abundant caution, however, the court may look for some corroboration. Extra­judicial confession cannot ipso facto be termed to be tainted. An extra­judicial confession, if made voluntarily and proved can be relied upon by the courts."

33. In Nazir Khan & Others v. State of Delhi [(2003) 8 SCC 461], this Court held :

"A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilty."

[See also Ram Khilari v. State of Rajasthan (1999) 9 SCC 89; and Namala Subba Rao v. State of A.P. 2006 (10) SCALE 253].

It will also be relevant to consider State of Rajasthan v. Kashi Ram [2006 (11) SCALE 440], wherein this court observed:

"There was nothing to show that he had reasons to confide in them. The evidence appeared to be unnatural and unbelievable. The High Court observed that evidence of extra­judicial confession is a weak piece of evidence and though it is possible to base a conviction on the basis of an extra­ judicial confession, the confessional evidence must be proved like any other fact and the value thereof depended upon the veracity of the witnesses to whom it was made."

34. Recently, this Court held in the case of Kulwinder Singh v. State of Punjab [Criminal Appeal No. 675 of 2006], decided on 05.12.2006, this Court held :

357

"the evidentiary value of an extra­judicial confession must be judged in the fact situation obtaining in each case. It would depend not only on the nature of the circumstances but also the time when the confession had been made and the credibility of the witness who testifies thereto."”

The judgments which are referred in the case of Aloke Nath Dutta (supra) are squarely applicable to the facts of the present case. As observed earlier, the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra shows that they were unbiased, not even remotely inimical to the accused no.12­Chhota Rajan and in respect of them nothing was brought out which may tend to indicate that they may have a motive of attributing an untruthful statement to the accused no.12­Chhota Rajan. The words spoken by them were clear, unambiguous and unmistakably convey that J.Dey was murdered at the instance of the accused no.12­Chhota Rajan. Therefore, as the evidence relating the extra­judicial confession is credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction.

509. The learned Advocate for the accused no.12 also relied upon the judgments in the case of Roopsena Khatun V. State of West Bengal reported in AIR 2011 SC 2256 and Santosh Pujari V. State reported in MANU/MH/2233/2017 to contend that the accused no.12­Chhota Rajan cannot be convicted on the basis of the various extra­judicial confessions which are unreliable. This Court has gone through the above judgments. They are also not applicable to the present case as the facts in those cases are totally different from the facts of the present case. Further, the doubtful nature of the extra­judicial confession made by the accused therein was not the only reason for setting aside the judgment of conviction and sentence of the accused therein. Similarly, the judgment in 358 the case of Tejinder Singh @ Kaka V. State of Punjab reported in (2013) 12 SCC 50 is also not applicable to the present case as the facts in that case are totally different from the facts of the present case. In the present case, the prosecution has duly proved that the evidence of PW.76­ Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­ Aariz Chandra is reliable and trustworthy. There is nothing doubtful in their evidence.

510. In order to show that the identification of the accused no.12­Chhota Rajan on the basis of his voice is not reliable, the learned Advocate for the accused no.12 has relied upon the judgments in the case of Regina V. Kris Ronald Flynn and Joe Philip St John reported in (2008) EWCA Crim 970, Nilesh Dinkar Paradkar V. State of Maharashtra reported in (2011) 4 SCC 143, Regina V. Turnbull reported in 1976 LawSuit (UKCA) 173, Regina V. Cooper reported in 1968 LawSuit (UKCA) 171, Joseph V. State of Kerala reported in 1963 Cri.L.J. 493 and Donald Phipps V. Director of Public Prosecutions Attorney General of Jamaica reported in 2012 LawSuit (UKPC) 24. This Court has gone through the above mentioned judgments. It may be stated that none of the above judgment is applicable to the facts which have come on record through the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra. In the case of Nilesh Dinkar Paradkar (supra) reference was made to case of Kris Ronald Flynn (supra). The judgment in the case of Nilesh Dinkar Paradkar (supra) was concerned with the admissibility of the tape recorded statements. Such is not the case here. In the case of Turnbull (surpa) the defence that was taken by the accused therein was that of mistaken identity. Similarly, in the case of Donald Phipps (supra) also, one of the grounds taken by the accused was that of mistaken identity. Such is not the case here. In the present case, 359 the accused no.12­Chhota Rajan has flatly denied that he had made any phone calls to the above mentioned four witnesses confessing the guilt. On the other hand, the prosecution has proved the various extra­judicial confessions made by the accused no.12­Chhota Rajan through the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra. The evidence of these witnesses is direct evidence as the extra­judicial confessions were made by the accused no.12­Chhota Rajan to them. In so far as the judgments in the case of Cooper (supra) and Joseph (supra) are concerned, they are also on different facts. However, in the case of Joseph (supra) the Hon'ble Kerala High Court referred to the comments made by Shri M.K.A. Khan in his book on the Law of Identification (2nd Edition, page 16, chapter on identification by speech and voice) in which it was stated that it is never safe to rely on the identification of a person by his voice as one is always liable to make a mistake. But, such is not the case here. In the present case, as stated earlier, though PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra were thoroughly cross­examined on the point of receipt of phone calls by them from the accused no.12­Chhota Rajan they remained firm on their statements made in the examination­in­chief. Through the evidence of PW.50­Indukumar Amin, the prosecution has also independently proved that the accused no.12­Chhota Rajan used to contact people from the number 3444. Further, through the evidence PW.42­Rajan Seth (which is independently considered in later part of this judgment) the prosecution has also proved that J.Dey had told him that he was receiving phone calls from the accused no.12­Chhota Rajan and that he might have committed some mistakes. All these facts taken together are sufficient to dispel the doubts, if any, about the fact that it was none other than the accused no.12­ Chhota Rajan at whose instance J.Dey was murdered. The present case is 360 definitely not a case of mistaken identity.

511. The learned Advocate for the accused no.12 has also relied upon some international research papers and commentaries on the point of reliability of evidence of voice identification. These research papers and commentaries are the views expressed by the research person and the commentators. They do not have any statutory force. Hence, these research papers and commentaries cannot be considered.

512. From the above, it is clear that the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra regarding the phone calls made to them by the accused no.12­Chhota Rajan confessing his guilt is cogent, trustworthy and reliable. There is nothing suspicious about their evidence. These witnesses were senior and experienced Journalists. They were independent witnesses. There was no reason for them to depose falsely. There is no evidence to show that there was any previous concert between these witnesses to falsely implicate the accused no.12­Chhota Rajan in this case. The extra­judicial confessions made by the accused no.12­Chhota Rajan to them do not suffer from any inherent improbabilities. The words spoken to by these witnesses are clear, unambiguous and unmistakably convey that the accused no.12­ Chhota Rajan is responsible for the murder of J.Dey. The extra­judicial confessions have passed the test of credibility and can be accepted and can be the basis of a conviction.

(C) AND (D) RECOVERY OF VARIOUS MOBILE PHONES, SIM CARDS AND OTHER ARTICLES DURING THE PERSONAL SEARCH OF THE ACCUSED PERSONS AND RECOVERY OF THE REVOLVER, CARTRIDGES, EMPTIES, MOTORCYCLES AND THE QUALIS VEHICLE ON THE BASIS OF THE DISCLOSURE STATEMENTS MADE BY SOME 361

OF THE ACCUSED PERSONS. 513. Through the evidence of various witnesses, the prosecution has proved the recovery of various mobile phones and SIM cards from the person of some of the accused at the time of their arrest. As per the prosecution, the CDRs these mobile phones and the SIM cards not only show the location of some of the accused persons before the incident, at the time of the incident and after the incident but they also show that these accused persons were in contact with each other to ensure that the plan to commit the murder of J.Dey does not fail. Also, in view of the disclosure statements made by some of the accused persons, the prosecution has proved the recovery of the revolver, cartridges, empties, motorcycles and the Qualis vehicle which were used in committing the crime. As per the prosecution, the material objects recovered from some of the accused persons serve as links and corroborates its case.

514. Considering the fact that a number of recoveries were made, it will be appropriate to place the details of the various articles recovered from the accused persons in the form of a chart for better understanding of the said aspect. The evidence of the relevant witnesses will be considered while dealing with the objections raised by the defence with regard to the various recoveries.

SR. NAME OF DATE OF PLACE ARTICLES FOUND ARTICLES ORAL NO. ACCUSED ARREST OF IN PERSONAL RECOVERED IN EVIDENCE ARREST SEARCH VIEW OF DISCLOSURE STATEMENT 1 Rohee 26/06/11 DCB CID, Cash of Rs.11,600/­ Revolver (Article­ PW.136­PI Tangappan at 03:00 Unit no.6, (Article­71), 249), 20 live Kale, Joseph @ pm. Chembur. driving license cartridges (Article­ PW.9­ Satish (Article­68 & 70), 250 & 251), 5 Malang Kalya PAN card (Article­ empties (Article­ Sheikh, 69) which were 269 colly), a blue PW.129­ 362

SR. NAME OF DATE OF PLACE ARTICLES FOUND ARTICLES ORAL NO. ACCUSED ARREST OF IN PERSONAL RECOVERED IN EVIDENCE ARREST SEARCH VIEW OF DISCLOSURE STATEMENT found in the wallet colored rain­coat Balu (Article­67), one with hood Panchange, black colored (Article­248) PW.137­ Micromax mobile [Disclosure PSI Rane phone (Article­72) statement having IMEI no. (Exh.1272) & 910536702593486, panchanama 910536703130483 (Exh.1272­A)] with SIM card (Article­73) of TATA DOCOMO of mobile no. 8655292230, one reddish black colored Nokia mobile X3 phone (Article­75) having IMEI no. 354865047936636 with one white colored SIM card (Article­77) bearing sr.no.89234184500 00035108 of mobile no. +447924557108 [Arrest & Recovery panchanama (Exh.493)] 2 Anil 26/06/11 DCB CID, Cash of Rs.615/­ Golden color PW.9­ Waghmode at 03:00 Unit no.6, (Article­83), voter Toyota Qualis Malang pm. Chembur. ID card (Article­ vehicle (Article­ Sheikh, 81), PAN card 236) bearing RTO PW.136­PI (Article­80) found registration no. Kale, in wallet (Article­ MH­12­CD­7701 PW.126­ 79), one black having engine no. Pradeep colored Nokia 2L5451324 & Shirodkar, mobile phone chasis no. PW.29­ model 1280 LF501118783 Dyandev (Article­85) having [Disclosure Sangle 363

SR. NAME OF DATE OF PLACE ARTICLES FOUND ARTICLES ORAL NO. ACCUSED ARREST OF IN PERSONAL RECOVERED IN EVIDENCE ARREST SEARCH VIEW OF DISCLOSURE STATEMENT IMEI statement no.3573830441252 (Exh.1247) & 91 with SIM card panchanama (Article­86) of (Exh.1248)] AIRCEL of mobile no.8898590024, One China made Suncorp mobile phone (Article­89) having IMEI no. 359083033506646, 359083033506653 with one SIM card (Article­90) of AIRCEL of mobile no. 8890590018 [Arrest & Recovery panchanama (Exh.493)] 3 Abhijit 26/06/11 DCB CID, Cash of Rs.7,000/­ ­ PW.136­PI Shinde at 03:00 Unit no.6, (Article­100), ATM Kale, pm. Chembur. card of Bank of PW.9­ Baroda (Article­ Malang 95), railway pass ID Sheikh (Article­97), railway pass (Article­98), PAN card (Article­96) found in wallet (Article­94).[Arrest & Recovery panchanama (Exh.493)] 4 Nilesh 26/06/11 DCB CID, One Black colored Black color Honda PW.133­ Shedge at 02:45 Property mobile phone Unicorn API pm. Cell, (Article­142) of motorcycle Gopale, Mumbai. Karbon K­201, bearing RTO PW.11­ having IMEI no. registration no. Vikram 911119550032920, MH­01­AF­8843 Jain, 911119550032938 (Article­261) PW.131­ 364

SR. NAME OF DATE OF PLACE ARTICLES FOUND ARTICLES ORAL NO. ACCUSED ARREST OF IN PERSONAL RECOVERED IN EVIDENCE ARREST SEARCH VIEW OF DISCLOSURE STATEMENT with SIM card having engine no. Meer (Article­144) of KC09E­4072612 & Usman Ali, mobile chasis no. PW.30­ no.9743193148 ME4KC098B8806 Dattatray [Arrest & Recovery 9990 along with More, panchanama its papers (Article­ PW.55­ (Exh.512)] 260 colly), green Rajiv Mane (Mehandi) colored rain­coat (Article­ 254) [Disclosure statement (Exh.1285) & panchanama (Exh.1315)] 5 Arun Dake 26/06/11 DCB CID, One black colored ­ PW.134­ at 07:00 Property Nokia mobile API pm. Cell, phone (Article­102) Pasalwar, Mumbai. having IMEI no. PW.10­ 356264048565537 Habib without SIM card, Mansuri one gray colored Nokia mobile phone (Article­106) having IMEI no. 357421048060302 with SIM card (Article­108) of mobile no. 9987017977, black colored wallet (Article­110) containing two railway passes (Article­266 colly), cash of Rs.500/­ (Article­112), driving license (Article­264), Voter ID card (Article­ 265), memory card 365

SR. NAME OF DATE OF PLACE ARTICLES FOUND ARTICLES ORAL NO. ACCUSED ARREST OF IN PERSONAL RECOVERED IN EVIDENCE ARREST SEARCH VIEW OF DISCLOSURE STATEMENT adapter (Article­ 114), one SIM card of IDEA (Article­ 115) bearing sr.no. 899179900411897 4605­5 [Arrest & Recovery panchanama (Exh.504)] 6 Mangesh 26/06/11 DCB CID, One black colored Pulsar motorcycle PW.138­PI Aagvane at 07:00 Property Nokia mobile bearing RTO Bhosle, pm. Cell, model 1200 phone registration no. PW.127­ Mumbai. (Article­117) MH­02­AN­4648 Bhagwan having IMEI no. (Article­240) Singh 355737027054103 having engine no. Thakur, with SIM card DHGBM71409 & PW.26­ (Article­119) of chasis no. Dinesh mobile no. DHVBMG72829 Arekar, 9967844960, cash along with its keys PW.28­ of Rs.430/­(Article­ (Article­239 colly) Dattatray 121 colly), [Arrest and its papers Chavan & Recovery (Article­207 colly) panchanama [Disclosure (Exh.504)] statement (Exh.1254) & panchanama (Exh.1254­A)] 7 Sachin 26/06/11 DCB CID, A black colored Black colored PW.134­PI Gaikwad at 07:00 Property wallet (Article­123) Pulsar motorcycle Pasalwar, pm. Cell, containing cash of bearing RTO PW.123­ Mumbai. Rs.710/­(Article­ registration no. Aslam Haji 129), PAN card MH­06­AH­4891 Mansuri, (Article­126), (Article­233) PW.31­ driving license bearing engine Suresh (Article­124) ATM no.DHGBNB92508 Waghmare card of Syndicate & chasis no. Bank (Article­125), MDZDHDHZZNCB One black colored with its papers Reliance mobile (Article­267 colly) phone model no.RD and keys (Article­ 366

SR. NAME OF DATE OF PLACE ARTICLES FOUND ARTICLES ORAL NO. ACCUSED ARREST OF IN PERSONAL RECOVERED IN EVIDENCE ARREST SEARCH VIEW OF DISCLOSURE STATEMENT 3530 CDMA having 230) [Disclosure RSN no. RLGHS statement 1034346055 (Exh.1204) & (Article­131) with panchanama SIM card of mobile (Exh.1205)] no.9320816594 (Article­133), One Nokia mobile phone (Article­135) having IMEI no. 353938014315554 with SIM card (Article­137) of mobile no. 9768114422, One SIM card of mobile no. 9004328040 (Article­140) and 8652475214 (Article­139)[Arrest & Recovery panchanama (Exh.504)] 8 Vinod 02/07/11 DCB CID Cash of Rs.31,580/­ ­ PW.133­ Asrani at 11:15 Property (Article­207), One API ­Abated pm. Cell, red colored Nokia Gopale, Mumbai. mobile phone PW.63­ model E66 (Article­ Nasiruddin 191) having IMEI Mohd. Ali no.3515490495849 Khan 32 having SIM card bearing sr.no. 289120001180459 1219 of Vodafone (Article­193) of mobile no. 9820597404, one black & White Nokia mobile phone model 367

SR. NAME OF DATE OF PLACE ARTICLES FOUND ARTICLES ORAL NO. ACCUSED ARREST OF IN PERSONAL RECOVERED IN EVIDENCE ARREST SEARCH VIEW OF DISCLOSURE STATEMENT 1203(Article­203) having IMEI no. 358013038283744 having a SIM of Excel company (Article­205) bearing sr.no. 899154801443182 1936, one silver color Nokia CDMA mobile phone (Article­195) model 6275 having RSN no. 25013465688 with SIM card (Article­197) of mobile no. 9324088888, one white color Nokia mobile phone model E66 (Article­199) having IMEI no.3579603988691 6 having SIM card (Article­201) of mobile no. 9920088888 [Arrest & Recovery panchanama (Exh.731)] 9 Deepak 22/09/11 Office of ­ ­ PW.143­ Sisodiya ACP, D­1 ACP (South), Duraphe Crime Branch, Mumbai. 10 Paulson 05/09/11 DCB CID, No article was Black color Nokia PW.18­ Palitara at 04:45 property found on his mobile phone Mohd. pm. cell, person. [Arrest & (Article­228) Abbas 368

SR. NAME OF DATE OF PLACE ARTICLES FOUND ARTICLES ORAL NO. ACCUSED ARREST OF IN PERSONAL RECOVERED IN EVIDENCE ARREST SEARCH VIEW OF DISCLOSURE STATEMENT Mumbai. Recovery model no.1280 Jilani, panchanama bearing IMEI PW.142­ (Exh.554)] no.358252041238 API Datir, 002 having one PW.117­ white color SIM Vishal card (Article­229) Parmar, bearing sr.no. PW.123­ 89234184500000 Aslam Haji 35120 of mobile Mansuri no.+4479245571 20. [Disclosure statement (Exh.1201) & panchanama (Exh.1203)] 11 Ms.Jigna 25/11/11 DCB CID, A black colored ­ PW.143­ Vora at 01:15 Unit no.1, Samsung mobile ACP pm. Mumbai. phone model GT Duraphe 19100 (Article­165) along with having IMEI no. a lady 358848044109403 Police with SIM card Officer (Article­167) of mobile no.9167272555. (Exh.694)

12 Chhota After he ­ Golden color I­ ­ PW.147­ Rajan was Phone (Article­287) Rajeev brought containing SIM Kumar to India, card (Article­288), Sinha, he was Black color I­Phone PW.148­ taken in (Article­291), I­Pad Basil judicial (Article­171) Kerketta, custody in [Memorandum PW.151­ this case (Exh.1470)] Expert on vide FSL, order PW.152­IO dated CBI. 07/01/16. 369

(E) CA/BALLISTIC REPORTS 515. The prosecution has also relied upon various CA/Ballistic reports to connect the accused persons with the present offence. The relevant CA/Ballistic reports are at Exhs.230, 231 and 236. The conjoint reading of these CA/Ballistic reports shows that the lead (Article­215) which was found near the spot of the incident and the lead (Article­247) recovered from the body of J.Dey tallied among themselves in respect of their numbers and widths of land and grooves, directions and extent of twists of rifling and the characteristic striations observed on the land and grooves impression showing that the lead (Article­215) found on the spot and the lead (Article­247) recovered from the body of J.Dey were fired from one and the same .32” caliber revolver (Article­249) having eight lands and eight grooves with right handed twists of rifling. Also, from the CA report (Exh.230), it is clear that the lead bullets were fired from beyond the powder range of a weapon. As per the report (Exh.231), the lead (Article­ 215) which was found near the spot of the incident, the rain­coat of J.Dey (Article­248) and the Rexene full pant (of rain­coat) of J.Dey (Article­45) were stained with blood and appeared to have been washed. Similarly, the T­shirt of J.Dey (Article­52) was also found to be stained with blood mostly on the left, front and back portion.

516. As per CA report (Exh.236), the revolver (Article­249) was found to be in working condition and residue of fired ammunition­nitrate was detected in the barrel washing indicating that the revolver (Article­249) was used for firing prior to its receipt in the FSL. The report also shows that two .32” revolver cartridges (out of 20 cartridges of the revolver (Article­250 colly.) were found to be live on test firing from the revolver (Article­249), the five empties (Article­269 colly.) were fired from the 370

revolver (Article­249) the characteristic features of the firing pin impression on the empties (Article­269 colly.) tallied among themselves and with the cartridges which were test fired (Article­250 colly.) and that the live cartridges (Article­250 colly.) and five empties (Article­269 colly.) were fired from the same revolver (Article­249).

(F) CALL DETAIL RECORDS 517. It is the case of the prosecution that for the purposes of planning and executing the murder of J.Dey, the accused persons were in contact with each other through their mobile phones. Various Nodal Officers were examined on behalf of the prosecution to prove in whose names the relevant mobile numbers were registered, in which mobile phone those mobile numbers were used at the relevant time, the location of some of the accused persons prior to the incident, at the time of the incident and after the incident. The Nodal Officers had given the details of the relevant mobile numbers in view of the requisitions received by them from the Investigation Officers during the course of the investigation. It may be noted that these witnesses have mainly deposed on the basis of the record furnished by them to the Investigating Officers. Considering the nature of their evidence, for affording clarity, the CDRs proved through each of the Nodal Officer are shown in the form of charts. The objections raised by the defence about the value of CDRs will be considered independently.

CDR OF THE MOBILE NUMBERS (REGISTERED/ NOT REGISTERED) IN THE NAME OF THE ACCUSED BUT RECOVERED FROM THEM.

SR. PW NO. AND SERVICE MOBILE NO. CERTIFICATE CDR NO. NAME PROVIDER U/S. 65B OF EVIDENCE ACT,1872 1 108­Shekhar TATA Tele 8655292230 Exh.908 Exh.909 371

SR. PW NO. AND SERVICE MOBILE NO. CERTIFICATE CDR NO. NAME PROVIDER U/S. 65B OF EVIDENCE ACT,1872 Vinayak Palande Services (A­1) colly. 2 109­Rakeshchandra Loop +447924557108 Exh.922 Exh.923 Rambhuj Prajapati Mobile (A­1) (India) 447924557120 Exh.925 Exh.926 (A­10) 3 110­Rajesh Reliance 9320816594 Exh.937 Exh.939 Sampatrao Comm. (A­7) Gaikwad 9324088888 Exh.941 Exh.942 (A­8) 4 111­Vijay Eknath Idea 9743193148 Article­X­111 Exh.949, Shinde Cellular (A­4) Article­X­121 Article­X­ 122 (There are two different CDRs) 8652475214 Exh.951 Exh.955 (A­7) '+ 447924557108 Exh.971 Exh.972, (A­1) Article­X­ 124 (There are two different CDRs) 5 113­Sunil Aircel 9768114422 Exh.1071 Exh.991 Subhashchandra (A­7) Tiwari 8898590024 Exh.1071 Exh.994 (A­2) 8898590018 Exh.1071 Exh.995 (A­2) 447924557120 Exh.1425 Exh.1425 (A­10) colly colly 6 PW.118­Yogesh Bharti 9987017977 Exh.1033 Exh.1035 Shrikrishna Airtel (A­5) Rajapurkar 9967844960 Exh.1033 Exh.1039 372

SR. PW NO. AND SERVICE MOBILE NO. CERTIFICATE CDR NO. NAME PROVIDER U/S. 65B OF EVIDENCE ACT,1872 (A­6) 7 PW.121­Vikas Vodafone 9820597404 Exh.1102 Exh.1103 Narayan Phulkar (A­8) 9920088888 Exh.1102 Exh.1105 (A­8) '+447924557108 Exh.1111 Exh.1112 (A­1) 9167272555 Exh.1133 Exh.1132 (A­5)

CDR OF THE MOBILE NUMBERS (REGISTERED) IN THE NAME OF THE ACCUSED BUT NOT RECOVERED FROM THEM.

SR. PW NO. AND SERVICE MOBILE NO. CERTIFICATE CDR NO. NAME PROVIDER U/S. 65B OF EVIDENCE ACT,1872 1 109­ Loop Mobile 9870011000 Exh.930 Exh.931 Rakeshchandra (India) (A­11) Rambhuj Prajapati 2 9870488388 Exh.933 Exh.934 (A­11) 3 111­Vijay Eknath Idea 8652449019 Exh.964 Exh.961 Shinde Cellular (A­5) 4 PW.118­Yogesh Bharti Airtel 7709131255 Exh.1052 Exh.1053 Shrikrishna (A­5) Rajapurkar 5 PW.121­Vikas Vodafone 8879140112 Exh.1092 Exh.1095 Narayan Phulkar (A­4) 9833625491 Exh.1092 Exh.1100 (A­6) 373

CDR OF THE MOBILE NUMBERS (NOT REGISTERED) IN THE NAME OF THE ACCUSED AND NOT RECOVERED FROM THEM BUT USE ATTRIBUTED TO THE ACCUSED PERSONS.

SR. PW NO. AND SERVICE MOBILE NO. CERTIFICATE CDR NO. NAME PROVIDER U/S. 65B OF EVIDENCE ACT,1872 1 108­Shekhar TATA Tele 8097959843 Exh.911 Exh.912 Vinayak Palande Services (A­5) colly. 2 109­ Loop Mobile 9773916609 Exh.919 Exh.920 Rakeshchandra (India) (A­5) Rambhuj Prajapati 3 110­Rajesh Reliance 9323971133 Exh.937 Exh.938 Sampatrao Comm. Gaikwad 4 111­Vijay Eknath Idea 8108521329 Exh.951 Exh.953 Shinde Cellular (A­4) 8652580503 Exh.964 Exh.958 (A­5) 9702873102 Exh.966 Exh.968 (A­1) 9690115644 Article­X­118 Article­X­ 119 8652490277 Exh.964 Exh.963 (A­5) 5 113­Sunil Aircel 9768302009 Exh.1071 Exh.996 Subhashchandra (A­5) Tiwari 6 PW.118­Yogesh Bharti Airtel 9892020185 Exh.1033 Exh.1034 Shrikrishna (A­1) Rajapurkar 7738622113 Exh.1033 Exh.1036 (A­5) 9967210526 Exh.1033 Exh.1037 9004850894 Exh.1033 Exh.1038 9004328040 Exh.1033 Exh.1040 (A­5) 9892504897 Exh.1033 Exh.1041 9892044665 Exh.1033 Exh.1042 374

SR. PW NO. AND SERVICE MOBILE NO. CERTIFICATE CDR NO. NAME PROVIDER U/S. 65B OF EVIDENCE ACT,1872 (A­5) 9611899645 Exh.1044 Exh.1045 (A­5) 9867464129 Exh.1047 Exh.1048 (A­1) 9987917765 Exh.1047 Exh.1050 (A­2) 7 PW.121­Vikas Vodafone 9769276691 Exh.1092 Exh.1093 Narayan Phulkar (A­7) 9920227609 Exh.1092 Exh.1098 (A­5)

518. It may be noted that though the prosecution has proved the CDRs of over 40 mobile numbers, during the course of hearing the prosecution has placed reliance on the CDRs of 21 mobile numbers to connect the accused persons with this case. However, out of the CDRs of those 21 mobile numbers, this Court is considering only those CDRs which are duly proved by the prosecution and which are relevant.

519. The prosecution has also proved the CDRs of the mobile numbers of some of the prosecution witnesses and J.Dey. They are reproduced below in the form of a chart.

CDR OF MOBILE NUMBERS OF PROSECUTION WITNESSES

SR. PW NO. AND SERVICE MOBILE NO. CERTIFICATE CDR NO. NAME PROVIDER U/S. 65B OF EVIDENCE ACT,1872 1 111­Vijay Eknath Idea Cellular 9594802961 Exh.975 Exh.966 Shinde (PW.82) 375

SR. PW NO. AND SERVICE MOBILE NO. CERTIFICATE CDR NO. NAME PROVIDER U/S. 65B OF EVIDENCE ACT,1872 2 113­Sunil Aircel 9768630692 Exh.1073 Exh.998 Subhashchandra (PW.71) Tiwari 9768408325 Exh.1071 Exh.992 (PW.89) 3 PW.118­Yogesh Bharti Airtel 9967016654 Exh.1047 Exh.1049 Shrikrishna (PW.88) Rajapurkar 9987917765 Exh.1050 Exh.1047 7738409480 Exh.1058 Exh.1059 (PW.78) 4 PW.121­Vikas Vodafone 9833726717 Exh.1106 Exh.1108 Narayan Phulkar (PW.89) 9820047058 Exh.1109 Exh.1110 (PW.73) 9819582444 Exh.1125 Exh.1124 (PW.100) 9930900303 Exh.1129 Exh.1128 (PW.87) 9820048533 Exh.1133 Exh.1131 (PW.90) 9619516963 Exh.1137 Exh.1140 (PW.83) 9819784449 Exh.1141 Exh.1145 (J.Dey)

520. In addition, through the evidence of 144­Ms.Leena Pawar who was the Nodal Officer, Aircel, the prosecution has proved the CDR (Exh.1425 colly) of the handset having IMEI no.358252041238002 along with the certificate u/s.65B of the Evidence Act,1872 (Exh.1425 colly). Similarly, through the evidence of PW.145­Chandrashekar Tiwari, Nodal Officer, Bharti Airtel, Delhi circle, the prosecution has proved that the SIM card of the mobile no.9987700111 was registered in the name the wanted 376 accused no.2­Ravi Ram Rattesar vide customer application form (Exh.1464 colly).

521. At this stage, it will be appropriate to make a note and analyze the evidence led by the prosecution with regard to certain mobile numbers which were neither registered in the name of the accused persons nor were recovered from them. However, as per the prosecution the mobile numbers were used by the some of the accused persons during the time the incident occurred and they serve as an important link to connect the accused persons with the present offence.

EVIDENCE REGARDING USE OF THE MOBILE NUMBER 9867464129 BY THE ACCUSED NO.1­ROHEE TANGAPPAN JOSEPH @ SATISH KALYA. 522. In order to prove that the mobile no.9867464129 was being used by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya at the relevant time, the prosecution examined PW.89­Girish Sargar who was the relative of the accused no.2­Anil Waghmode and was also knowing the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. The mobile no. 9833726717 was registered in his name. It is the case of the prosecution that after the incident, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya had contacted him from the mobile no. 9867464129 for the purposes of escaping from Mumbai after the incident. But he did not support the case of the prosecution. When he was cross­examined by the learned SPP, he tried to disown the statement made by him before the Police. But while doing so, he stated as follows:

“6. …...... I do not know whether on 11.06.2011 at about 03:00 p.m. and thereafter Rohit Joseph @ Satish Kalya had telephoned me on my mobile no.9833726717 from his mobile phone no.9867464129 on three occasions. Witness states 377

that Rohit Joseph @ Satish Kalya may have called him for making enquiry regarding payment towards tempo. Now again the witness states that Rohit Joseph @ Satish Kalya did not telephone him for that purpose. It is not true to say that I am deposing falsely on oath that I do not know or remember that Rohit Joseph @ Satish Kalya had telephoned me on my mobile phone...... ”

523. It is an admitted position that during the investigation, the SIM card of the mobile no.9867464129 could not be recovered. But from the above statement of PW.89­Girish Sargar, it is quite clear that the accused no.1­ Rohee Tangappan Joseph @ Satish Kalya had called him on 11/06/2011 at about 03:00 pm from the mobile no.9867464129. This shows that at the relevant time, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was using the mobile no.9867464129. The fact that PW.89­Girish Sargar had received phone from the mobile no.9867464129 on 11/06/2011 on his mobile no.9833726717 is duly corroborated by the CDR (Exh.1108). It is interesting to note that though PW.89­Girish Sargar was cross­examined by the learned Advocate for the accused no.1 and all sorts of questions were put to him, he was never cross­examined on the point of receipt of the phone call from the accused no.1­Rohee Tangappan Joseph @ Satish Kalya on 11/06/2011 at about 03:00 pm from the mobile no.9867464129. Therefore, it can be safely said that at the time of the incident, the mobile no.9867464129 was being used by the accused no.1­ Rohee Tangappan Joseph @ Satish Kalya.

EVIDENCE REGARDING USE OF THE MOBILE NUMBER 9892020185 BY THE ACCUSED NO.1­ROHEE TANGAPPAN JOSEPH @ SATISH KALYA. 524. The SIM card of the mobile no.9892020185 was purchased by using the documents of PW.15­Banka Amarnath Gaud. The evidence of this witness shows that he neither purchased the SIM card of this mobile 378 number nor did he give his documents to anybody for purchasing the SIM card of that mobile number. He has deposed that in the year 2011, he had lost his wallet which contained one photograph, xerox copy of his licence and Rs.1,100/­ in cash in the wallet. Perhaps the person who found the wallet of PW.15­Banka Amarnath Gaud used the documents in it to purchase the SIM card of the mobile no.9892020185. According to PW.118­Nodal Officer Airtel, as per CDR (Exh.1034) on 11/06/2011, the mobile no.9892020185 was used in the handset having IMEI no.910528503374220. However, neither the SIM card nor the handset was recovered during the investigation. There is no evidence to show that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was using the SIM card of the mobile no.9892020185 at the time of the incident. The use of the same cannot be attributed to him on the basis of suspicion. Therefore, the prosecution cannot make use of the CDR (Exh.1034).

EVIDENCE REGARDING USE OF THE MOBILE NUMBER 9768408325 BY THE ACCUSED NO.2­ANIL WAGHMODE. 525. As per the prosecution, the mobile no.9768408325 belonged to the accused no.2­Anil Waghmode and he was using the same at the time of the incident. However, from the evidence of PW.113­Nodal Officer Airtel, it is seen that the said mobile number was registered in the name of PW.89­Girish Sargar. There is nothing in the evidence of PW.89­Girish Sargar to show that he had given the SIM card of the mobile no.9768408325 to the accused no.2­Anil Waghmode for use. The SIM card of the said mobile number and the handset in which the SIM was used were not recovered during the investigation. Therefore, in absence of any evidence to connect the accused no.2­Anil Waghmode with the use of the SIM card of mobile no.9768408325, the prosecution cannot make use of the CDR (Exh.992). 379

EVIDENCE REGARDING USE OF THE MOBILE NUMBER 9987917765 BY THE ACCUSED NO.2­ANIL WAGHMODE. 526 As per the prosecution, the mobile no.9987917765 was being used by the accused no.2­Anil Waghmode. As per the prosecution, the documents of PW.14­Arshad Igatpuriwala Memon were used to purchase the SIM card of the said mobile number. PW.14­Arshad Igatpuriwala Memon deposed that he did not purchase the SIM card of the said mobile number. The SIM card of the said mobile number and the handset in which the SIM was used were not recovered during the investigation. Therefore, in absence of any evidence to connect the accused no.2­Anil Waghmode with the use of the SIM card of mobile no.9987917765, the prosecution cannot make use of the CDR (Exh.1050).

EVIDENCE REGARDING USE OF THE MOBILE NUMBER 8108521329 BY THE ACCUSED NO.4­NILESH SHEDGE. 527. As per the prosecution, the mobile no.8108521329 was being used by the accused no.4­Nilesh Shedge. The documents of one Ms. Hansa Patwa were used to purchase the SIM card of the said mobile number. She was not examined as she had expired. The SIM card of the said mobile number and the handset in which the SIM was used were not recovered during the investigation. Therefore, in absence of any evidence to connect the accused no.4­Nilesh Shedge with the use of the SIM card of mobile no.8108521329, the prosecution cannot make use of the CDR (Exh.953).

EVIDENCE REGARDING USE OF THE MOBILE NUMBER 8652580503 BY THE ACCUSED NO.5­ARUN DAKE. 528. In order to prove that the mobile no.8652580503 was being used by the accused no.5­Arun Dake at the time of the incident, the prosecution has examined PW.93­Ms. Lata Dake who was the wife of the accused no.5­ Arun Dake and PW.107­Roshan Baikar who was the relative of the 380 accused no.5­Arun Dake. As per the prosecution, the accused no.5­Arun Dake had used the SIM card of the mobile no.8652580503 in the mobile phone (Article­159). Later on, when PW.107­Roshan Baikar was in need of a mobile phone, the accused no.5­Arun Dake gave him the mobile phone (Article­159) for use. During the course of investigation, PW.107­ Roshan Baikar produced the said mobile phone before the Investigating Officer which was then seized. However, PW.107­Roshan Baikar did not support the case of the prosecution. In so far as the evidence of PW.93­Ms. Lata Dake is concerned, the perusal of the same will show that she has admitted that the SIM card of the mobile no.8652580503 was given to her by PW.92­Ms.Rubina Isral Ansari. She stated that the SIM card of that mobile number was with her for about 15­20 days and thereafter, she lost the SIM card. She stated that she did not use that SIM card as she did not have any mobile phone with her at that time. She denied that the said SIM card was being used by the accused no.5­Arun Dake. As PW.93­Ms. Lata Dake did not support the case of the prosecution she was cross­examined by the learned SPP. But nothing fruitful could be achieved. However, when she was cross­examined on behalf of the accused nos.5 and 11, she stated that she did not give the SIM card of the mobile no.8652580503 to anybody. It may be noted that it has been brought out in the cross­ examination of PW.111­Nodal Officer Idea the SIM card of the mobile no. 8652580503 was purchased on 31/04/2011 and it was active.

529. It may be noted that the SIM card of the mobile no.8652580503 could not recovered during the investigation. The perusal of the evidence of PW.93­Ms.Lata Dake will show that she was desperate to save the accused no.5­Arun Dake who was her husband from punishment. In view of the evidence of PW.111­Nodal Officer Idea it is quite clear that the statement made by PW.93­Ms.Lata Dake that the SIM Card of the mobile 381 no.8652580503 was never used is not correct. The perusal of the evidence of PW.111­Nodal Officer Idea and the CDR (Exh.958) clearly shows that the said mobile number was active during the period 01/04/2011 till 10/06/2011 till 00:00:22 Hrs (mid­night) and the said SIM card was used in the handset having IMEI no.353678044077070 which was not recovered during the investigation. Man may lie but the circumstances do not is the cardinal principle of evaluation of evidence. In the present case, the circumstance i.e. CDR (Exh.958) clearly shows that the mobile no.8652580503 was very much active and was being used till one day prior to the incident. If PW.93­Ms.Lata Dake was not using it then in absence of any evidence to the contrary it has to be said that the mobile no.8652580503 was being used by the accused no.5­Arun Dake as it is not unusual for the husband to use the mobile phone of his wife. Therefore, the accused no.5­Arun Dake cannot escape his liability merely because the SIM and the mobile handset in which the SIM card of mobile no.8652580503 were used was not recovered.

EVIDENCE REGARDING USE OF THE MOBILE NUMBER 7738622113 BY THE ACCUSED NO.5­ARUN DAKE. 530. As per the prosecution, the mobile no.7738622113 was being used by the accused no.5­Arun Dake. It is the case of the prosecution that the said mobile number was being used by PW.107­Roshan Baikar and that later on, he had given it to the accused no.5­Arun Dake for use. But, he did not support the case of the prosecution. The SIM card of the said mobile number (Article­162) was seized from PW.107­Roshan Baikar after he had produced the same before the Investigating Officer. In absence of any evidence to connect the accused no.5­Arun Dake with the use of the SIM card of mobile no.7738622113, the prosecution cannot make use of the CDR (Exh.1036). 382

EVIDENCE REGARDING USE OF THE MOBILE NUMBER 8652490277 BY THE ACCUSED NO.5­ARUN DAKE. 531. As per the prosecution, the mobile no.8652490277 was being used by the accused no.5­Arun Dake. From the evidence of PW.111­Nodal Officer Idea, it is seen that the said mobile number was registered in the name of one Shri Arlappa Chinappa Shetty. He was not examined by the prosecution. As per the prosecution, the SIM card (Article­115) of this mobile number having sr.no.8991799004118974605­5 was found on the person of the accused no.5­Arun Dake at the time of his arrest and personal search. However, the perusal of the original customer application form (Exh.962) shows that the serial number of the SIM card of the mobile no.8652490277 is 89917990021182590379 which is different from the serial number mentioned found of the SIM card (Article­115). Therefore, it cannot be said that the SIM card of the mobile no.8652490277 was recovered from the person of the accused no.5­Arun Dake. As such, in absence of any evidence to connect the accused no.5­ Arun Dake with the use of the SIM card of mobile no.8652490277, the prosecution cannot make use of the CDR (Exh.963).

(G) CCTV FOOTAGE 532. The prosecution has also relied upon the CCTV footage of 11/06/2011 of the area near the spot of the incident to connect the accused persons with the present crime. In this regard, the prosecution has relied upon the evidence of PW.27­Yogesh Shitap who was working with the Aryan Pro Security Technology Pvt. Ltd. which had installed CCTV cameras in the Spectra building, Hiranandani, Powai and PW.75­Jayesh Mhatre who was working as a control room operator (Technician) with the Top Security company. In June 2011, he was working in the Crisil House ltd., Hiranandani, Powai. PW.27­Yogesh Shitap had provided the 383 recording of the CCTV footage of the Spectra Building in three CDs (Articles 149 to 151 colly) and the hard disk of the DVR. PW.12­Mohd. Ayub Mohd. Umar Mogal was the panch witness regarding the seizure of the hard­disk containing the CCTV footage of 11/06/2011 of the CCTV camera which were installed in the Spectra Building, Hiranandani, Powai. PW.75­Jayesh Mhatre had provided the CD (Exh.784) containing the recording of the CCTV footage of the front gate of the Crisil House of 11/06/2011. PW.84­Bhaskar Shankar Gode was the Head Constable, Powai Police Station in whose presence the CDs (Articles­149 to 151 colly) were seized from PW.27­Yogesh Shitap and sealed vide panchanama (Exh.813). It may be noted that he was not the panch witness in that regard. He was examined by the prosecution as the panch witnesses were not traceable and as the proceedings of the panchanama (Exh.813) were conducted in his presence. The perusal of the cross­examination of these witnesses will show that the defence has not disputed the seizure of the hard­disk (Article­146), CDs (Articles­149 to 151 colly.) and the CD (Article­784).

533. It may be noted that the CDs produced by the prosecution contain the CCTV footage which was copied on them. However, none of the above CDs were accompanied by a certificate u/s.65B of the Evidence Act,1872. The CD (Exh.784) was marked as exhibit subject to the proof in accordance with law. But the prosecution did not file the certificate u/s.65B of the Evidence Act,1872 to make the CDs admissible in evidence. Hence, the CDs cannot be considered. However, the hard­disk (Article­ 146) being the primary evidence will have to be considered. But, the CCTV footage of 11/06/2011 is of no use to the prosecution as the CCTV camera did not capture the actual incident. The CCTV footage shows that one motorcycle was followed by two other motorcycles. The identity of the 384 persons on those motorcycles cannot be established on the basis of the CCTV footage as neither the faces of those persons nor the registration number of the motorcycles is visible in the CCTV footage.

534. At this stage, it may be noted that as per the prosecution, the CCTV footage and the photographs of the motorcycles were referred to PW.153­ Dr. Edward Burns, Forensic Analyst, Minneapolis, USA for finding out whether the motorcycles which were seen in the CCTV footage of 11/06/2011 and the motorcycles which were seized during the investigation were one and the same. The prosecution has proved the forensic report (Exh.1544) through the evidence of PW.153­Dr. Edward Burns. However, the perusal of the said report shows that it is inconclusive. It is specifically stated in the report that there was not enough visual information in the videos to positively match the questioned motorcycles with the photographs of the motorcycles which were provided. That apart, from the report (Exh.1544), it is not clear as to which CCTV footage and photographs were sent to PW.153­Dr. Edward Burns for analysis. The prosecution did not lead any evidence in that regard. Therefore, the report (Exh.1544) is not helpful to the prosecution.

(H) INTERCEPTION OF CONVERSATION BETWEEN THE ACCUSED NO.12­CHHOTA RAJAN AND PW.90­MANOJ SHIVDASANI AND REPORT OF VOICE ANALYSIS (EXH.1304) OF THE ACCUSED NO.12­ CHHOTA RAJAN.

EVIDENCE REGARDING INTERCEPTION OF CONVERSATION BETWEEN THE ACCUSED NO.12­CHHOTA RAJAN AND PW.90­MANOJ SHIVDASANI. 535. As per the prosecution, the accused no.12­Chhota Rajan and the deceased accused no.8­Vinod Asrani were close to each other. As at the relevant time, as the health of the deceased accused no.8­Vinod Asrani was not good, the accused no.12­Chhota Rajan used to speak to PW.90­ 385

Manoj Shivdasani who was working with the deceased accused no.8­Vinod Asrani on phone for making enquiry regarding the health of the deceased accused no.8­Vinod Asrani and one such phone call was intercepted on 02/08/2011. As per the prosecution, during the said conversation, the accused no.12­Chhota Rajan told him the reason for getting rid of J.Dey.

536. In support of the above, the prosecution has basically relied on the evidence of PW.90­Manoj Shivdasani, PW.74­API Pramod Sawant, PW.136­PI Kale and PW.143­ACP Duraphe.

537. It has come in the evidence of PW.90­Manoj Shivdasani that he used to work with the deceased accused no.8­Vinod Asrani. He deposed that his mobile number was 9820048533. He deposed that the deceased accused no.8­Vinod Asrani was suffering from a liver ailment. He deposed that some of the friends of the deceased accused no.8­Vinod Asrani used to phone him and make enquiry with him about the health of the deceased accused no.8­Vinod Asrani. He deposed that he had heard the name of the accused no.12­Chhota Rajan and that the accused no.12­Chhota Rajan had phoned him long back and made enquiry regarding with regarding the health of the deceased accused no.8­Vinod Asrani. He deposed that in this case, his statement was recorded u/s.164 of Cr.P.C.,1973 by the learned Magistrate. He deposed that he could not read Marathi and that he had simply signed the statement. He deposed that he did not remember the contents of the statement. At the same time, he stated that he had stated the truth before the learned Magistrate. When the CD (Exh.777) containing the record of his conversation with accused no.12­Chhota Rajan was played on the computer of the Court in presence of all he identified his voice in the conversation. He deposed that in the conversation he was talking with the accused no.12­Chhota Rajan. He 386 deposed that the caller had introduced himself as Nana. He deposed that Nana was also known as Chhota Rajan. He deposed that the contents of the conversation were correct.

538. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he did not give any document to the Police to show that the mobile no.9820048533 belonged to him. He stated that in August 2011 he was mentally disturbed as he had some liver problem due to consumption of liquor. He stated that after seeing the medical condition of the deceased accused no.8­Vinod Asrani he stopped consuming liquor. He stated that at the time when the Police recorded his statement he used to consume liquor. He stated that at that time he was little bit scared and confused. He denied that at that time, his mental condition was not good. He stated that he was under pressure at that time but he denied that he was pressurized by the Police. He stated that the conversation recorded in CD (Exh.777) was never played by the Police before him during investigation. He stated that before he entered into the witness box he was told that the CD containing conversation between himself and the accused no.12­Chhota Rajan would be played in the Court. He stated that he was told to recognize the voice in the conversation. He denied that he did not receive any phone call from the accused no.12­Chhota Rajan.

539. In cross­examination on behalf of the accused nos.5 and 11, he stated that except the phone call in the year 2006 and the phone call in question he did not receive any other phone call from the accused no.12­ Chhota Rajan. He stated that he did not remember the exact date on which he had received both the phone calls. He stated that he did not remember the month in which he had received the phone call in the year 2006. But he stated that he had received that phone call with regard to the 387 health of the deceased accused no.8­Vinod Asrani. He stated that prior to that there was no connection between him and the accused no.12­Chhota Rajan. He stated that he did not remember the duration of conversation which had taken place between him and the accused no.12­Chhota Rajan in the phone call which was made to him in the year 2006. He stated that the deceased accused no.8­Vinod Asrani had given his name and mobile number to the accused no.12­Chhota Rajan in the year 2006 when he was not keeping well. He stated that the deceased accused no.8­Vinod Asrani had told him that he had given his mobile number to the accused no.12­ Chhota Rajan. He stated that the deceased accused no.8­Vinod Asrani had told him that the accused no.12­Chhota Rajan would be asking him (witness) about the health of the deceased accused no.8­Vinod Asrani and that he should give the information about the same to the accused no.12­ Chhota Rajan. He stated that prior to the year 2006 he had never heard the voice of the accused no.12­Chhota Rajan nor he had met him personally. He stated that from the year 2006 till the last phone call he had not heard the voice of the accused no.12­Chhota Rajan. He stated that he did not remember the exact contents of his conversation with regard to the last phone call received by him from the accused no.12­Chhota Rajan. He stated that thereafter he never received any phone call from the accused no.12­Chhota Rajan.

540. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that he had never personally seen the deceased accused no.8­Vinod Asrani talking to the accused no.12­Chhota Rajan. He stated that he had never met the accused no.12­Chhota Rajan. He stated that he had said that the phone call was made by the accused no.12­Chhota Rajan because the caller had told him that he was Nana @ Chhota Rajan. He stated that his mobile number was 9820048533. He stated that the Police did not 388 seize his mobile phone. He denied that when his statement was being recorded by the Magistrate the Policemen were around him. He voluntarily stated that the Policemen were sitting outside. He stated that he did not remember the exact date on which he had received the phone call from the accused no.12­Chhota Rajan. He admitted that he was remembering the conversation because he had heard it in the Court during the recording of his deposition. He denied that it was the only conversation which he had with the accused no.12­Chhota Rajan. He voluntarily stated that prior to that phone call he had one conversation with the accused no.12­Chhota Rajan in the year 2006. He stated that he was not aware that the calls of his mobile phone were being intercepted and recorded by the Police.

541. PW.136­PI Kale deposed that 01/08/2011, he received a confidential information that one person by name Raj whose mobile number was 9820048533 was talking to the accused no.12­Chhota Rajan from that mobile number. He deposed that on 02/08/2011 he prepared a proposal for intercepting the phone calls of that mobile number and forwarded the same to the Additional Commissioner of Police (Crime). He deposed that thereafter that mobile number was kept under surveillance under the 'X­Project'.

542. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that he had never seen PW.90­Manoj Shivdasani. He stated that he did not examine the call details of the mobile no.9820048533. He stated that he came to know that the said mobile number belonged to PW.90­ Manoj Shivdasani through the 'X­Project' after the proposal was forwarded. He stated that he had received information that 'Raj' was using the said mobile number for making extortion calls and for ordering 389 associates to commit murder. He stated that he did not register any offence against him as only an information was received.

543. In cross­examination on behalf of the accused nos.5 and 11, he stated that he did not know the full name of 'Raj'. He stated that he could not say when he had received the secret information about 'Raj' being in contact with the accused no.12­Chhota Rajan from the mobile no.9820048533. He stated that he did not check the antecedents of 'Raj' before forwarding the proposal. He stated that he did not submit any document to the Additional Commissioner of Police (Crime) along with the proposal. He stated that prior to 02/08/2011, he did not know since when and on how many occasions 'Raj' was in contact with the accused no.12­Chhota Rajan. He stated that he had received the secret information on 01/08/2011. He stated that he did not feel the necessity of collecting the call details of the mobile no.9820048533. He stated that he did not know the procedure for intercepting the phone calls. He stated that he did not know since when the mobile no.9820048533 was kept under surveillance.

544. PW.74­API Sawant was attached to the “X­Project” under the Additional Commissioner of Police, Crime Branch, Mumbai and it was his duty to prepare proposals regarding interception of phone numbers based on applications made by the concerned Unit In­charge. His evidence shows that after the receipt of the proposal for interception of phone calls of a particular mobile number, it was to be placed before the Additional Commissioner of Police for approval and then to forward the same to the Joint Commissioner of Police (Crime) and from him it used to be forwarded the Commissioner of Police, Mumbai and thereafter to the Additional Chief Secretary (Home) for the necessary permission. After 390 receiving the Order, it used to be sent to the concerned mobile company (service provider) for compliance. Accordingly, the mobile companies used to divert the calls to their server. He has deposed that they used to record the calls and hear the conversation.

545. He deposed that on 02/08/2011, during the course of his duty, PW.136­PI Kale of DCB CID Unit no.6 gave a requisition that the calls of mobile no.9820048533 of one Raj belonging to the gang of the accused no.12­Chhota Rajan were to be intercepted and kept under observation. Accordingly, he placed the requisition before the Additional Commissioner of Police (Crime). He deposed that treating the proposal as urgent, the Additional Commissioner of Police (Crime), on the same day directed that the said mobile number be kept under observation. He deposed that he then prepared a proper proposal and forwarded the same to the Additional Chief Secretary (Home) for sanction through the Joint Commissioner of Police (Crime) and the Commissioner of Police. He deposed that on 04/08/2011, the order (Exh.775) was received from Additional Chief Secretary (Home).

546. He deposed that the mobile no.9820048533 was under surveillance since 02/08/2011. He deposed that the first call was intercepted on 04/08/2011 at 02:20:10. He deposed that he had heard the conversation which was going on in that call. He deposed that the conversation was between one Manoj (PW.90) and the accused no.12­Chhota Rajan. He deposed that the mobile no.9820048533 belonged to Manoj (PW.90) and he was talking to the accused no.12­Chhota Rajan. He deposed that they were talking about the health of the deceased accused no.8­Vinod Asrani and about one unknown person. He deposed that the accused no.12­ Chhota Rajan was saying “woh bhi koi sav nahi tha, who bhi dawood se 391 juda hua tha, uske against me aur bhi journalist the”. He deposed that the accused no.12­Chhota Rajan also made a reference to the name of the accused no.11­Ms.Jigna Vora. He deposed that during the conversation, the accused no.12­Chhota Rajan also said that he was called to London and Philippines. He deposed that when he informed the Additional Commissioner of Police (Crime) about the interception, he was directed to save the record of the conversation in the server. He deposed that as per the directions of Additional Commissioner of Police the record of conversation was preserved in the server.

547. He deposed that he could identify the voice of the accused no.12­ Chhota Rajan as he used to refer to his name in the conversations which were intercepted from time to time. He deposed that after hearing the conversation he gathered that it was about the murder of J.Dey which was being investigated by PW.143­ACP Duraphe. He deposed that on the basis of the letter which was issued by PW.143­ACP Duraphe, the Additional Commissioner of Police directed him to prepare three CDs of the conversation.

548. He deposed that he was having access to the server and after logging in by using his user name and password he prepared three CDs of the conversation, heard the contents of the CDs one by one and prepared the transcript (Exh.776) of the conversation. He deposed that he then kept the three CDs (Exhs.777, 777­A, 777­B) in three different khaki colored envelopes and sealed the same. He deposed that he then gave the CDs along with the transcript (Exh.776) in sealed condition to PW.143­ACP Duraphe. When the CD (Exh.777) was played in the open Court in presence of all, he identified the voice of Manoj (PW.90) and the voice of the accused no.12­Chhota Rajan in the conversation. He deposed that the 392 original conversation was still preserved in the server. He deposed that on 13/07/2016, he issued the certificate u/s.65B (Exh.778) of the Evidence Act, 1872 to PW.152­IO CBI.

549. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he had not done any course in computers. He stated that he did not prepare any panchanama regarding the conversation. He denied that he had prepared transcript (Exh.776) after he heard the conversation for the first time. He stated that he had not undergone any training regarding voice identification. He stated that in the transcript (Exh.776) there was no statement that the person calling had said that he was accused no.12­ Chhota Rajan. He stated that in the letter (Exh.774) it was not mentioned that three CDs were forwarded in sealed condition to PW.143­ACP Duraphe. He stated that in the transcript (Exh.776) it was not mentioned that it related to the present case.

550. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that between 02/08/2011 and 28/09/2011 other calls made and received from the mobile no.9820048533 were also intercepted and recorded. He stated that he could not say whether there was any call regarding extortion. He stated that as per the procedure any requisition for interception used to come to him for processing. He stated that in the requisition, the details of complainant or the details about the date of extortion was not mentioned. He stated that the said mobile number was not registered in the name of Raj and it was being used by one person by name Manoj(PW.90).

551. He stated that he could not say whether during the period 02/08/2011 to 28/09/2011 any other call was also received in the name 393 of the accused no.12­Chhota Rajan. He stated that he had started the interception of the calls from 02/08/2011 and he had received the order (Exh.775) on 04/08/2011. He stated that there was no special reason for intercepting the phone call without permission from the competent authority. He denied that the certificate (Exh.778) u/s.65B of the Evidence Act, 1872 was not issued by following due procedure.

552. In cross­examination on behalf of the accused nos.5 and 11, he stated that the calls of the mobile no.9820048533 were intercepted by him from 02/08/2011 to 28/09/2011. He stated that as on the day on which his deposition was recorded, he could not say how many calls were received and intercepted between 02/08/2011 to 04/08/2011. He stated that he did not know Raj whose number was provided to him. He stated that he had verified in whose name the mobile no.9820048533 was registered by getting the subscriber details from the Vodafone company. He stated that he had taken the information on 02/08/2011. He stated that the proposal was prepared by an Officer by name Sunil Patil on 02/08/2011. He stated that he could not give the exact time at which it was prepared. He stated that he could not give the exact time on which PW.136­PI Kale provided the information to him. He stated that no timing was mentioned in the documents except in the transcript (Exh.776). He admitted that in the letter (Exh.774) and the order (Exh.775) neither the details of the subscriber of the mobile no.9820048533 were mentioned nor the name of the person using the said mobile number was mentioned. He stated that prior to 04/08/2011, he was not knowing any person by name Manoj (PW.90) and Raj.

553. He stated that the phone number of Police which was used for interception was 22604500. He stated that all the calls made or received 394 on the mobile number 9820048533 were recorded in the server of the “X­ Project”. He stated that the time at which the phone call was received and the time at which the phone was disconnected was also recorded in the server. He stated that the duration of the call was not recorded. He voluntarily stated that the Interception Related Information (IRI) was furnished by the service provider. He stated that whenever any phone number was kept under observation, the calls made from that number or received on that number were recorded in the server. He stated that the calls were recorded even if the Officer was absent. He admitted that the phone calls which were recorded in the server could not be manipulated in any manner. He stated that he could not give the details of any other calls except the phone call in question.

554. He stated that he had never met or talked to the accused no.12­ Chhota Rajan. He stated that he had deposed that one person in the conversation was the accused no.12­Chhota Rajan as this name was given to him by PW.136­PI Kale. He stated that he did not attend the phone call when it was actually made. He stated that some other staff might have attended the same. He stated that generally the calls were correctly recorded from the beginning till the end. He stated that any addition or deletion of words in the conversation was not possible. He stated that at the time of deposing he could not say on which date the transcript (Exh.776) was prepared. He stated that he had first heard the entire conversation and then he again heard each sentence and typed it and again verified it. He stated that the conversation was recorded automatically and without any human intervention. He stated that at the time of preparing the transcript (Exh.776) nobody else was present with him. He stated that the recorded conversation in the server was copied in the CD on 11/01/2012. He stated that he did not remember the time at 395 which it was copied. He stated that the phone number of the caller and the receiver was generated in the server. He stated that the time of receipt of call and the time at which the phone was disconnected could be seen in the server.

555. He stated that he had given the all the three CDs (Exhs.777, 777­A, 777­B) to PW.143­ACP Duraphe on 11/01/2012 and thereafter, he did not see the CDs till the date on which he deposed before the Court. He stated that the CDs were not played before him till the date on which his evidence was recorded. He stated that after preparing the CDs he had no occasion to verify and hear the recorded conversation till he deposed in the Court. He denied that no call was received and no call was recorded. He denied that the call, CDs and transcript (Exh.776) were manipulated at the instance of Crime Branch.

556. PW.143­ACP Duraphe deposed that during the investigation which was conducted by him PW.74­API Sawant produced a letter sent by PW.136­PI Kale for monitoring the mobile no.9820048533 which was received by his sources. He deposed that PW.74­API Sawant also produced the letter (Exh.774) of Addl. Commissioner of Police, the order of Addl. Chief Secretary (Exh.775) and the three CDs containing the transcript (Exh.776) of the telephonic conversation which were recorded during the period when the calls were being monitored.

557. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that he had made enquiry with PW.90­Manoj Shivdasani regarding his antecedents. He stated that during the investigation he had come across the name 'Raj'. He stated that the name 'Raj' was a nick name and that he did not record the statement of any person by name 'Raj'. He 396 stated that he had recorded the statement of PW.90­Manoj Shivdasani. He stated that the mobile number of PW.90­Manoj Shivdasani was put on surveillance as he had received information that a person by name 'Raj' was contacting the accused no.12­Chhota Rajan regarding the criminal activities and for curbing the activities the phone number was placed under surveillance from 02/08/2011. He denied that the mobile number was placed under surveillance from 03/08/2011. He stated that he did not remember the exact time at which the phone number was put on surveillance on 02/08/2011. He stated that the proposal was put up by PW.136­PI Kale on 02/08/2011. He stated that he did not know whether there was any other call made from or to that mobile number regarding any criminal activity.

558. In cross­examination on behalf of the accused nos.5 and 11, he stated that a phone number was kept under surveillance only after an order to that effect was passed. He voluntarily stated that in urgent cases a letter could be issued by the Addl. Commissioner of Police to the service provider to intercept the calls. He stated that the Addl. Chief Secretary was empowered to pass order for surveillance of phone calls and this case the order was passed on 04/08/2011. He stated that during the investigation he did not try to find out who was 'Raj' and where he was residing. He stated after the mobile number was placed under surveillance he tried to find out about 'Raj' from the police records but nothing was found. He stated that he did not remember whether at the time of recording his statement the CD containing the conversation of the mobile no.9820048533 was with was with him or not. He stated that PW.74­API Sawant had prepared the transcript of the conversation.

559. He stated that he had compared the conversation recorded in the 397

CD and the transcript and he found that the contents of the CD and the contents of the transcript were the same. He stated that some statements which were not audible were not a part of the transcript. He stated that the first charge­sheet in this case was submitted by him on 03/12/2011. After looking at the record, he stated that he had recorded the statement of PW.74­API Sawant on 18/01/2012. He stated that the statement of PW.74­API Sawant was neither annexed to the original charge­sheet nor the transcript was filed along with the original charge­sheet. He stated that he did not know the date on which the transcript was prepared. He admitted that the transcript was not filed along with the original charge­ sheet as the first charge­sheet was already submitted against the accused except accused­Ms.Jigna Vora. He stated that he was going to file supplementary charge­sheet and he thought that those documents could be filed along with the supplementary charge­sheet. He stated that it was not his practice to submit only material against the charge­sheeted accused and not against absconding accused who were subsequently charge­sheeted. He stated that generally along with the charge­sheet the material which was collected till that day was also filed. He stated that there was no specific reason for not recording the statement of PW.74­API Sawant prior to 18/01/2012. He denied that the CD, the transcript and connected material were forged and fabricated. He stated that PW.74­API Sawant had given three CDs to him. He stated that he did not remember whether he had asked PW.74­API Sawant to produce the certificate u/s 65B of the Evidence Act,1872. He denied that the record of the intercepted call was not available at the time of filing of the original charge­sheet and therefore it was not filed along with the original charge­ sheet.

560. From the evidence of PW.74­API Sawant, it is seen that he prepared 398 the transcript (Exh.776) from the CDs (Exh.777, 777­A and 777­B) in which the conversation between PW.90­Manoj Shivdasani and the accused no.12­Chhota Rajan was copied from the server of the X­Project where the original record of the conversation was preserved. He did not prepare the transcript (Exh.776) by hearing the original record of the conversation. Therefore, the transcript (Exh.776) is inadmissible in evidence and cannot be looked into. At the same time, the other evidence on this point can be considered.

561. It may be noted that during cross­examination of PW.90­Manoj Shivdasani it was brought on the record that before deposing in the Court he was told to recognize the voice in the conversation. This fact was brought on the record to show that PW.90­Manoj Shivdasani was a tutored witness. In this regard, firstly, it may be stated that no question was put to PW.90­Manoj Shivdasani as to who had told him to recognize the voice in the conversation. Further, it is not the case of the defence that before deposing in the Court PW.90­Manoj Shivdasani had met the learned SPP and his statement was read over to him. Assuming for a moment that PW.90­Manoj Shivdasani had met the learned SPP before deposing in the Court, that by itself will not mean that PW.90­Manoj Shivdasani was tutored. It is not tutoring if the witness is made aware of his Police statement and is told to narrate the incident properly in the Court. The case of the prosecution will be adversely affected only if it is shown in the cross­examination of the witness that the witness was told to give incorrect evidence. Such is not the case with the evidence of PW.90­ Manoj Shivdasani. Hence, it cannot be said that PW.90­Manoj Shivdasani was a tutored witness. 399

EVIDENCE REGARDING THE REPORT OF VOICE ANALYSIS (EXH.1304) OF THE ACCUSED NO.12­CHHOTA RAJAN. 562. PW.132­Dhananjay Rawat, Deputy Superintendent, Tihar Central Jail No.2, was the panch witness regarding the seizure of the voice sample of the accused no.12­Chhota Rajan for the purposes of spectrography. As the accused no.12­Chhota Rajan has admitted that his voice sample was indeed recorded in the premises of the Tihar Jail, New Delhi on 22/02/2016, it is not necessary to discuss the evidence of PW.132­ Dhananjay Rawat. For the same reason, it is also not necessary to discuss the evidence of PW.135­Amitosh Singh, Scientific Officer, Grade II, Physics, CSFL, New Delhi who recorded the voice sample of the accused no.12­Chhota Rajan on 22/06/2016.

563. PW.155­Dr. Rajender Singh was the expert who analyzed the voice sample of the accused no.12­Chhota Rajan and his voice in the conversation which he had with PW.90­Manoj Shivdasani and which was intercepted. The report (Exh.1304) submitted by him was directly marked as exhibit in view of section 293 of Cr.P.C.,1973.

564. In cross­examination on behalf of the accused no.12, he stated that the voice sample was received by him on 07/03/2016. He stated that he could not say whether the voice sample of accused no.12­Chhota Rajan was taken in Tihar Jail as he was not present at that time. He stated that he did not know what instrument was used for recording the voice sample of the accused no.12­Chhota Rajan. He stated that he did not create the five folders in the micro SD card (Article­257) and that they were already created. He stated that he did not know who created those five folders. He stated that he came to know about the empty folders when he examined the micro SD card (Article­257). He admitted that his report was with 400 regard to the voice sample of the accused no.12­Chhota Rajan which was taken. He denied that he had tampered with the voice sample of the accused no.12­Chhota Rajan. He denied that he had furnished a false report. He denied that he had compared voice sample of the accused no.12­Chhota Rajan with wrong CD which contained so called interception of conversation of accused no.12­Chhota Rajan. He denied that the CD received by him was tampered. He denied that the he had prepared the report (Exh.1304) to suit the case of the prosecution.

565. From the evidence of PW.155­Dr.Rajender Singh and the examination report (Exh.1304), it appears that he compared the voice sample of the accused no.12­Chhota Rajan which was recorded in the micro SD card (Article­257) with the CD containing the record of the conversation which had taken place between PW.90­Manoj Shivdasani and accused no.12­Chhota Rajan. The said CD was forwarded to CFSL,New Delhi by PW.150­S.S. Kishor who was S.P., CBI. Special Crime­ II, New Delhi. From the perusal of his evidence it appears that he simply called for a CD containing the copy of the conversation between PW.90­ Manoj Shivdasani and the accused no.12­Chhota Rajan. There is nothing on record to show how that CD was prepared. In any case, as can be seen from the examination report (Exh.1304), PW.155­Rajender Singh used the voice contained in the CD for comparing it with the voice sample of the accused no.12­Chhota Rajan which was recorded in the micro SD card (Article­257). He did not hear the record of the original conversation. There is nothing to suggest that CD containing the copy of the record of conversation between PW.90­Manoj Shivdasani and the accused no.12­ Chhota Rajan was compared with the original record which was preserved in the server. Hence, the examination report (Exh.1304) cannot be considered. 401

(I) ORAL EVIDENCE

ORAL EVIDENCE WITH REGARD TO THE VISIT OF J.DEY TO LONDON AND PHILLIPINES PRIOR TO THE INCIDENT. 566. PW.35­Jacob George was a friend of J.Dey. He deposed that in the year 2011 J.Dey had told him that he was going to London for interviewing someone regarding the incident of '26/11'. He deposed that after returning from London when he met J.Dey on 04/06/2011, J.Dey told him that he could not take the interview.

567. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that J.Dey did not tell him that when he had gone to London he had also visited Germany, France and Switzerland.

568. PW.42­Rajan Sheth was a friend of J.Dey. He deposed that both of them used meet twice or thrice in a week. He deposed that J.Dey had told him that he was receiving some calls from the accused no.12­Chhota Rajan. He deposed that he had told J.Dey to take care as he was receiving calls from the accused no.12­Chhota Rajan. He deposed that J.Dey told him that he was receiving the calls from accused no.12­Chhota Rajan as he might have committed a mistake. He deposed that on the day of his murder he had not met J.Dey but he had received a phone call from him. He deposed that he knew the deceased accused no.8­Vinod Asrani and that he had talked with J.Dey regarding him. He deposed that the deceased accused no.8­Vinod Asrani was a Bookie. He deposed that J.Dey was in regular touch with the deceased accused no.8­Vinod Asrani.

569. In cross­examination on behalf of accused nos.1,6 and 7, he stated that J.Dey and the deceased accused no.8­Vinod Asrani were in touch with 402 each other because of Cricket. He stated that he did not personally see J.Dey talking with the accused no.12­Chhota Rajan. He stated that the DCB CID had made enquiry with him with reference to the murder of J.Dey in the year 2011­2012 but his statement was not recorded. He stated that whatever he had deposed in examination in chief was never stated by him before the Mumbai Police.

570. In cross­examination on behalf of accused nos.3,4 and 12, he stated that he was the friend of J.Dey since the year 2003. He stated that sometimes J.Dey used to share his personal information with him. He stated that J.Dey did not discuss with him any of the articles written by him. He stated that he came to know about the murder of J.Dey from TV. He stated that thereafter he went to his work. He stated that on that day it was raining heavily. He stated that he did not attend the funeral of J.Dey. He voluntarily stated that he was a diabetic patient and was required to take three injections in a day and therefore, he could not attend the funeral. He stated that he did not meet the wife or mother or the sister or any other relative of J.Dey after his murder. He stated that J.Dey had told him that he had gone abroad. He stated that he did not remember where J.Dey had gone. He then stated that J.Dey might have gone to London. He stated that he did not know whether J.Dey had also gone to Germany, France and Switzerland. He stated that prior to 25/04/2016 he did not tell anybody that J.Dey had received calls from accused no.12­Chhota Rajan. He denied that he had cooked a false story while giving statement to the CBI. He stated that J.Dey was a very secretive person. He denied that he was deposing falsely under the pressure of CBI. (This suggestion was given to the witness twice).

571. PW.45­V.R. Divakaran was also a friend of J.Dey. He deposed that 403 he had met J.Dey 12­15 days prior to his death and at that time, J.Dey had told him that he was going to Philippines to meet the accused no.12­ Chhota Rajan.

572. In cross­examination on behalf of accused nos.3,4 and 12, he admitted that he had met J.Dey through PW.44­Atul Sharma. He stated that he did not know when J.Dey had visited London. He stated that J.Dey did not tell him anything about his foreign visits. He stated that he did not know whether J.Dey had visited Philippines.

573. PW.46­Ms.Poornima Swaminathan was working under J.Dey at the relevant time in the daily 'Mid­Day'. She deposed that J.Dey was supposed to go to Philippines in a junket organized by the Tourism Board of Philippines at the time of his murder. She deposed that J.Dey had once visited Europe and during that J.Dey had contacted her through a matrix mobile phone number but she did not remember that phone number. She has also deposed about various books written by J.Dey and the books which was planning to write and publish which related to the accused no.12­Chhota Rajan and Dawood Ibrahim. Since, that part of her evidence is not relevant for the present purpose, it is not being dealt with.

574. PW.68­Sachin Ramesh Kalbag was working in the daily 'Mid­Day' in the year 1994. At the time of the incident, i.e. on 11/06/2011, he was working with the India Today Group at the New Delhi. He stated that on 14/03/2011, he was appointed as the Executive Editor of the daily 'Mid­ Day'. He deposed that the Office of the daily 'Mid­Day' was situated at Peninsula Center, Parel (E), Near Income Tax office, Mumbai­400 013. He deposed that he knew J.Dey and that he was the Editor (Special Investigation and Crime) in the Office of daily 'Mid­Day'. He deposed that 404 he also knew PW.46­Ms.Poornima Swaminathan as she was also a Reporter working in the daily 'Mid­Day'. He deposed that it was his duty to verify the authenticity of the news items submitted by the Reporters. He deposed that J.Dey was a quiet and introvert person. He deposed that he could not remember whether J.Dey had any dispute with any of his colleagues.

575. He deposed that the murder of J.Dey was national news. He deposed that in July 2011 he was interviewed by the 'NDTV India' news channel. He deposed that the Reporter had told him that there was a program on the J.Dey murder case and that they wanted to ask him some questions. He deposed that he agreed to talk to them after sometime. He deposed that thereafter, they telephoned him and he was interviewed on the phone. He deposed that he did not remember the details of the questions put to him. He stated that there was an assertion from the 'NDTV India' news channel that they had information that the accused no.12­Chhota Rajan may be involved in the murder of J.Dey. He deposed that the person from the 'NDTV India' news channel also told him that one of the Reporters by surname Shri Singh (PW.78) had a conversation with accused no.12­Chhota Rajan. He deposed that when the persons from the 'NDTV India' news channel asked him what was his opinion regarding the conversation between that Reporter and the accused no.12­Chhota Rajan, he stated that he did not have any opinion as he was not a part of that conversation. He deposed that J.Dey had written news reports which was published in the daily 'Mid­Day' dated 30/05/2011 and 02/06/2011 (Exh.752 colly.) regarding the firing incident which had taken place at the Pakmodia Street.

576. In cross­examination on behalf of accused nos.1,6 and 7, he stated 405 that the Police did not prepare any panchanama in his presence regarding the news articles (Exh.752 colly). He stated that he did not find out about the identity of the person who claimed that he was calling from 'NDTV India' news channel. He stated that as per the news article dated 02/06/2011 (Exh.752 colly) the Police had given the information that many members of the gang of accused no.12­Chhota Rajan were missing from their hideouts and that there was possibility of backlash from the Dawood Gang. He admitted that J.Dey was murdered after the incident which was reported in the news article dated 02/06/2011 (Exh.752 colly). He stated that J.Dey was also publishing articles against the gang of Dawood. He stated that J.Dey might have been attacked at the instance of Dawood.

577. In cross­examination on behalf of accused nos.3,4 and 12, he stated that he was in the field of journalism since last 23 years. He stated that the rates for advertising in the newspaper were dependent upon the increase or decrease in the readership. He stated that the headline of a news item was the main factor for attracting the readers. He stated that the news which was to be published was dependent upon the sources from whom the news was received. He stated that J.Dey was a fearless writer and he used to write articles on criminals including oil mafia, sandalwood smugglers etc. He stated that J.Dey had discussed with him about the smuggling of sandalwood in Karnataka and he wanted to go there. He stated that J.Dey never discussed about his sources with him. He stated that J.Dey discussed with him about the oil mafia. He denied that the news desk was responsible for generation of revenue of the newspaper. He stated that when he was working with the daily 'Mid­Day', he had sent J.Dey to Philippines. He stated that he was not aware whether J.Dey had gone to Germany and Switzerland but he stated that J.Dey had gone to 406

London. He stated that he did not recall whether J.Dey was killed before going to Philippines. He then stated that he could not recall whether J.Dey had gone to Philippines. He stated that it was possible that the name such as Chhota Rajan, Dawood Ibrahim are included in the headlines to increase the sale of newspaper but he also stated that there was no proof in that regard.

578. In cross­examination on behalf of accused nos.5 and 11, he stated that he was knowing J.Dey since the year 1995. He admitted that J.Dey used to maintain secrecy about his work, about the news he collected and about what he had written. He stated that he was not much aware about the personal life of J.Dey.

579. PW.104­Shaikh Fakrullah was working as Manager of Raj Travels on Freelance basis. He deposed that in April­2011 J.Dey had toured Europe with his company between the period 28/04/2011 to 05/05/2011. He deposed that during the tour he found the behavior of J.Dey normal. He deposed that J.Dey used to sit on the back seat of the bus separately and used to talk on his phone continuously. He deposed that on one occasion when he had asked J.Dey why he was talking on his phone and why he was not listening when he was telling about the sites J.Dey told him that he was talking to his mother as she was not well and she was alone.

ORAL EVIDENCE WITH REGARD TO THE VISIT OF J.DEY TO THE UMA PALACE BAR AND RESTAURANT ON 07/06/2011. 580. PW.7­Ms.Shubha Sharma was the wife of J.Dey. It has come in her evidence that J.Dey never discussed with her about the articles which he was writing and that he used to keep his family away from his work. She has also stated that on 07/06/2011, J.Dey had gone to meet the deceased 407 accused­Vinod Asrani in a Bar and he returned after mid­night. She stated that J.Dey did not tell her with whom he had gone on 07/06/2011 to meet the deceased accused no.8­Vinod Asrani.

581. PW.54­Ashok Singh was working as the Manager of Uma Palace Bar and Restaurant, Mulund at the relevant time. He deposed that Shri Omprakash Singh was the Senior Hotel Manager and as he was not on duty on 07/06/2011 he was holding his charge also. He deposed that on that day at about 09:45 pm, the deceased accused no.8­Vinod Asrani came there in his BMW car. He deposed that he knew the deceased accused no.8­Vinod Asrani as he was coming to their hotel since last one to one and half year. He deposed that the deceased accused no.8­Vinod Asrani was standing in the parking lobby along with one person and at that time, two persons came there. He deposed that the deceased accused no.8­ Vinod Asrani told the watchman to let them in as the watchman had prevented them from going in. He deposed that thereafter all of them went inside the Bar and Restaurant. He deposed that he had seen the two persons who were stopped by the watchman. He deposed that after some days, he saw the news on TV about the murder and on from the news on TV he came to know that J.Dey was murdered and that he was the same person who was come to the bar and restaurant on 07/06/2011.

582. In cross­examination on behalf of accused nos.1,6 and 7, he stated that he had never seen J.Dey prior to 07/06/2011. He stated that many customers used to come to the Bar and Restaurant and he could not remember their description. He admitted that at the time of recording his statement the photograph or video of J.Dey was not shown to him. He stated that while giving statement he did not give the description of J.Dey. 408

583. PW.56­Dr.Kachare was knowing J.Dey and the deceased accused no.8­Vinod Asrani. He deposed that on 07/06/2011, at about 11:00 pm., he had gone to Uma Palace Bar and Restaurant, Mulund where he saw the deceased accused no.8­Vinod Asrani along with J.Dey and 3­4 persons.

584. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that on 07/06/2011, when he went to Uma Palace Bar, he sat in the special room of the Bar and not with those 3­4 persons who were along with the deceased accused no.8­Vinod Asrani. He stated that he did not have any occasion to speak to them. He stated that greetings were exchanged only between him and the deceased accused no.8­Vinod Asrani.

585. PW.60­Mahesh Singh was working as a watchman in the Uma Palace Bar & Restaurant, Mulund at the relevant time. His examination­in­ chief is on similar lines as that of PW.54­Ashok Singh. Hence, it is not being reproduced.

586. In cross­examination on behalf of the accused no.2, he stated that he was working as a watchman in the Uma Palace Bar and Restaurant since last five years from the date on which his statement was recorded. He stated that there was no special reason for him to remember anybody. He stated that he did not know how many customers had come and in which vehicles the customers had come to Uma Palace Bar and Restaurant between 07/06/2011 to 06/07/2011. He denied that he did not identify any person on 07/06/2011. He denied that on 11/06/2011 there was no news on TV about the murder of J.Dey.

587. PW.64­Deepak Patel was working with the deceased accused no.8­ 409

Vinod Asrani at the relevant time. His examination­in­chief is also on similar lines as that of PW.54­Ashok Singh. Hence, it is not being reproduced.

588. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he did see the description of the persons who were with the deceased accused no.8­Vinod Asrani. He stated that he had no occasion to remember any person who had gone there with the deceased accused no.8­Vinod Asrani. He stated that he did not see any news on TV regarding any murder. He admitted that he came to know about the murder from general talks in the Office. He stated that he was not aware as to who was murdered. He stated that he had not seen the photo of the person who was murdered on TV or in Newspaper. He then stated that he had never seen or met the person who was murdered.

589. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that before deposing in the Court he had read his statement. He admitted that the deceased accused no.8­Vinod Asrani used to visit the Uma Palace Bar and Restaurant twice or thrice in a week. He stated that he was not aware about the names of the 3­4 persons who were with the deceased accused no.8­Vinod Asrani in Uma Palace Bar and Restaurant on 07/06/2011.

590. PW.77­Sanjeev Devasia was the Principal correspondent of the daily 'Mid­Day'. He had written an article regarding the meeting of PW.73­ Sanjay Prabhakar with J.Dey and the deceased accused no.8­Vinod Asrani on 07/06/2011. He deposed that during the period April 2005 to July 2011 he was working as a Principal Correspondent in the daily 'Mid­Day' newspaper situated at Peninsula Center, Dr. S.S. Rao Rd., near Mahatma 410

Gandhi Rd., Parel, Mumbai. He deposed that thereafter, he worked in the daily 'Mumbai Mirror'. He deposed that on 06/07/2011 at about 09:00 pm. while he was on duty, his Editor came there along with PW.73­Sanjay Prabhakar and told him to take his interview. He deposed that PW.73­ Sanjay Prabhakar gave him the first person account of an incident about what had happened when he had accompanied J.Dey and met the deceased accused no.8­Vinod Asrani at the Uma Palace, Mulund. He deposed that he made the notes of what PW.73­Sanjay Prabhakar told him and fed it in the computer. He deposed that as after narrating the incident PW.73­Sanjay Prabhakar had left, he telephoned PW.73­Sanjay Prabhakar 2­3 times and cross­checked about what he had told him. He deposed that then he e­mailed the information given by PW.73­Sanjay Prabhakar to the Sub­Editor and on the next day i.e. on 07/07/2011, the interview was published in the daily 'Mid­Day' newspaper under the heading 'First Person Account' (Exh.791). He deposed that whatever was published under that heading was almost verbatim of what PW.73­Sanjay Prabhakar had said and therefore it was published under the heading 'First Person Account'.

591. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he was covering this case as J.Dey was his colleague. He denied that they used to publish news reports as per the wishes of the Police. He denied that the sequence of news events mentioned in the news article (Exh.791) was given by the Police. He denied that they had published a false news at the instance of the Police.

592. In cross­examination on behalf of the accused nos.5 and 11, he stated that he did not remember the exact date on which he was called by the Police. He stated that in the news article (Exh.791) neither the name of the writer and Reporter was mentioned nor the photograph of PW.73­ 411

Sanjay Prabhakar was published. He stated that prior to 07/07/2011 he had never met PW.73­Sanjay Prabhakar. He stated that in news article (Exh.791) the name of PW.73­Sanjay Prabhakar did not appear. He denied that at the instance of the Police had stated that the narration in the news article (Exh.791) was given by PW.73­Sanjay Prabhakar.

EVIDENCE OF WITNESS WHO HEARD THE SOUND OF FIRING. 593. PW.72­Ramjatan Patel was working as a Supervisor with the Front Line Securities at Hiranandani since the year 2007. He deposed that on 11/06/2011, he was on duty in the Spectra House from 02:00 pm.. He deposed that on that day after he joined his duty he took a round to see the security guards and when he was talking to the Property Manager Shri Prafull Chandra he heard some cracker like sound. He deposed that when he looked around he saw that one person had fallen on the road near the divider and there was a motorcycle there. He deposed that there were two other motorcycles and two persons were traveling on each motorcycle and they ran away from that place. He deposed that he could not see the faces of those persons but they were wearing rain­coats. He deposed that one person was wearing green colored rain­coat and one person was wearing blue colored rain­coat. He deposed that he did not recollect the color of the rain­coat which the remaining two persons were wearing.

594. It is not necessary to refer to his cross­examination as it is apparent from his examination­in­chief itself that he did not see the faces of the assailants. He also did not see the actual incident. He has stated that one of the assailant was wearing a green colored rain­coat whereas another assailant was wearing a blue colored rain­coat. He has also stated that he could not recollect what was the color of the rain­coats of the other two assailants. Therefore, his evidence is not of much use to the prosecution as 412 he has not identified any of the assailants. He was not even shown the rain­coats (Article­248 and 254) which were recovered at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.4­Nilesh Shedge respectively.

OBJECTIONS REGARDING SEIZURE AND RECOVERY OF ARTICLES FROM THE ACCUSED PERSONS.

595. At this stage, it will be appropriate to deal with the objections raised by the defence with respect to the evidence led by the prosecution regarding the recovery of various mobile phones and SIM cards, the revolver, bullets, motorcycles, CDRs and interception of conversation between the accused no.12­Chhota Rajan and PW.90­Manoj Shivdasani.

OBJECTIONS REGARDING SEIZURE FROM THE ACCUSED NO.1­ ROHEE TANGAPPAN JOSEPH @ SATISH KALYA. 596. It has come in the evidence of panch PW.9­Malang Shaikh that during the personal search of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya which was conducted on 26/06/2011, along with other articles one black colored Micromax mobile phone (Article­72) [having IMEI no.910536702593486, 910536703130483] with SIM card (Article­ 73) of TATA DOCOMO of mobile no.8655292230, one reddish black colored Nokia X3 mobile phone (Article­75) [having IMEI no.354865047936636] with one white colored SIM card (Article­77) [bearing sr.no.8923418450000035108 of mobile no.+447924557108] were found and seized vide personal search and arrest panchanama (Exh.493). His evidence on this point is corroborated by the evidence of PW.136­PI Kale and the contents of the panchanama (Exh.493). Also, the details of the above articles which are reflected in the panchanama (Exh.493) correspond with the articles which are before this Court. 413

597. It may be noted that in the statement u/s.313(b) of Cr.P.C.,1973, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya has taken the following stand with regard to the various articles which were seized at the time of his arrest:

“Q.252: It has come in the evidence of PW.9­Malang that during the personal search of accused which was conducted on 26/06/2011, currency of more than Rs.10,000/­ (Article­71), two mobile phones (Articles­72, 75), one PAN card (Article­69) and one driving license(Article­68,70) was recovered and seized. What do you have to say about it ?

Ans.: The driving licence, PAN card and the cash amount was recovered. The mobile phones did not belong to me.

Q.254: As per personal search and arrest panchanama (Exh.493) during the personal search of you accused which was conducted on 26/06/2011 in the office of Crime Detection Branch, Unit no.6, Chembur, one black colour micromax mobile Phone(Article­72) having IMEI nos.910536702593486, 910536703130483 was recovered and seized in which there was a SIM card of TATA Docomo company(Article­73) having mobile number 8655292230. What do you have to say about it ?

Ans.: The mobile phone as well as the SIM does not belong to me.

Q.255: As per personal search and arrest panchanama (Exh.493) during the personal search of you accused which was conducted on 26/06/2011 in the office of Crime Detection Branch, Unit no.6, Chembur, one reddish black colour Nokia mobile Phone, Model X3, having IMEI nos.3548650479366 (Article­73) was recovered and seized in which there was a white coloured SIM card bearing no.8923418450000035108 (Article­77) of mobile no.+447924557108. What do you have to say about it ?

Ans.: The mobile phone as well as the SIM card does not belong to me. 414

Q.294: It has come in the evidence of PW.136­PI Kale that during personal search of you accused­Rohit Tangappan Joseph @ Satish Kalya which was conducted in presence of two panch witnesses, one red coloured wallet was found containing cash of Rs.11,600/­(Article­71), one driving license(Article­68 and 70) and PAN card(Article­69) were found, one Micromax mobile phone(Article­72) containing SIM card(Article­73) of TATA Docomo company of mobile no.8655292230, one Nokia Mobile phone model X3 (Article­75) containing one white coloured SIM card (Article­77) were found which were seized, sealed and labelled with his signature and the signature of panch witnesses. What do you have to say about it ?

Ans.: No personal search was conducted. Driving license, PAN card and cash amount belong to me. The police had taken the above articles from me on 25.06.2011.”

598. Thus, it can be seen that though the accused no.1­Rohee Tangappan Joseph @ Satish Kalya has not disputed the recovery of the other articles which were found on his person he has very smartly disputed the fact that the mobile phones and SIM cards were also found on his person. At the same time, he has also stated that the Police had taken the articles except the mobile phones and the SIM cards from him on 25/06/2011. But there is nothing on the record to suggest that any such thing had happened on 25/06/2011. The prosecution has already proved that the accused no.1­ Rohee Tangappan Joseph @ Satish Kalya was arrested on 26/06/2011. Also, as stated earlier, on 27/06/2011, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was produced before the learned Addl. Chief Metropolitan Magistrate for the purposes of remand. But at that time he kept quiet. Had his stand been genuine then he would have certainly made a grievance before the learned Addl. Chief Metropolitan Magistrate at that time itself. Therefore, it is clear that the stand taken by him is false. 415

599. It was argued that the seizure of the articles from the person of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya on 26/06/2011 is vitiated on the ground that PW.141­PI Gosavi who was the Investigating Officer was not present. The said submission has no basis. As per section 41 of Cr.P.C.,1973 any Police Officer can arrest any person about whom the Police Officer has reason to believe that he has committed a cognizable offence. As per section 51 of Cr.P.C.,1973 whenever a person is arrested by a Police Officer, the Officer making such arrest may search such person and place in safe custody all articles, other than necessary wearing apparel found upon him. In the present case, as on 26/06/2011, PW.136­PI Kale was assisting PW.141­PI Gosavi in the investigation. It was PW.136­PI Kale who had brought the accused nos.1,2 and 3 from Rameshwaram to Mumbai and arrested them. In view of the provisions of section 51 of Cr.P.C.,1973 he had every power to take the personal search of those accused persons and seize the articles found on their person.

600. It was next argued that the mobile phones were planted on the person of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. As stated earlier, the prosecution has already proved the seizure of the mobile phones and the SIM cards from the person of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. There is no evidence to even prima facie suggest that the mobile phones and the SIM cards were planted on the person of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. No such stand was taken by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya while giving answers to the questions put to him u/s.313(b) of Cr.P.C.,1973. Also, if such was the case then nothing prevented him from raising any grievance before the learned Addl. Chief Metropolitan Magistrate when he was produced on 27/06/2011 for the purposes of the remand. But he did not raise any such grievance at that time. 416

601. It was next contended that in the personal search and arrest panchanama (Exh.493) neither the name of the Police Officer who took the personal search of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya is mentioned nor the name of the Officer who had caught hold of the accused is mentioned. There is no requirement of law that in the panchanama the name of the Officer who conducted the personal search of the accused should be mentioned. Further, no explanation was called for from PW.136­PI Kale on this point during his cross­examination though he was extensively cross­examined on all the other aspects. As stated earlier, the evidence of PW.136­PI Kale and panch PW.9­Malang Shaikh on the point of the arrest and seizure of the articles from the person of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya is cogent, reliable and trustworthy. Also, it is not the case of the prosecution that when the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was in the Office of the Crime Branch he tried to flee from there. Therefore, there was no question of catching hold of him. The events which did not take place could not have been mentioned in the panchanama.

602. The learned Advocates for the accused nos.1 and 2 have sought to contradict the evidence of PW.136­PI Kale about the arrest of the accused no.2­Anil Waghmode at Rameshwaram by placing reliance on a statement made by PW.141­PI Gosavi that the accused persons of this case were called and interrogated. It is well settled that while appreciating the evidence of a witness, the entire evidence of that witness must be considered. It is not permissible to pick up a sentence in isolation from the entire statement and ignoring its proper reference, use the same against or in favour of a party. Therefore, when the entire evidence of PW.141­PI Gosavi is considered then it will be clear that there is no contradiction 417 between his evidence and the evidence of PW.136­PI Kale. PW.141­PI Gosavi has deposed that on 26/06/2011, PW.136­PI Kale had arrested some of the accused persons of this case and only after their arrest he had called for them for their interrogation. Therefore, there was no question of calling accused person from anywhere else other than from custody.

603. According to the learned Advocate for the accused no.1, the contents of the personal search and arrest panchanama (Exh.493) are written in past tense meaning thereby that the accused persons were arrested even before 26/06/2011. The objection is based on the perception of the learned Advocate for the accused no.1. The objection is raised ignoring the fact that every person has his own way of expression of things. In any case, this Court has already observed above that there is nothing suspicious in the evidence of PW.136­PI Kale and the panch PW.9­ Malang Shaikh. Hence, the objection stands rejected.

604. It was next contended that the mobile phones and the SIM cards were not properly sealed as in the personal search and arrest panchanama (Exh.493) it was not mentioned that the articles were sealed with 'wax seal' and that the seal movement register was also not produced by the prosecution. The argument is hyper­technical. From the evidence of the panch PW.9­Malang Shaikh and PW.136­PI Kale it is clear that after the articles were seized they were sealed immediately. Their evidence is corroborated by the personal search and arrest panchanama (Exh.493). In so far as non­mentioning of the words 'wax seal' is concerned, it is not the requirement of the law that such words must be used in the panchanama. It is clearly mentioned in the panchanama that the articles were sealed and labelled. Let's assume that there was only papers sealing of the articles. That would still not affect the seizure and sealing of the articles 418 because there is no rule of law that sealing must be done by wax seal only and that paper sealing is not permissible.

605. In so far as the non­production of the seal movement register is concerned, PW.136­PI Kale has specifically deposed that his Office did not maintain any seal movement register. At the same time, he has also stated that the movements of the seal were recorded in the station diary. The learned Advocate for the accused no.1 could not point out any provision of law to show that any separate seal movement register is required to be maintained. He also did not call upon PW.136­PI Kale to produce the relevant station diary to get his doubt cleared. Therefore, the objection about improper sealing of the articles cannot be entertained. In any case, once the recovery is proved by the prosecution, the burden of proof on the defence to rebut the same is very strict, which cannot be discharged merely by pointing at procedural irregularities in making the recoveries.

606. The personal search and arrest panchanama (Exh.493) was then sought to be doubted on the ground that the presence of the batteries in the mobile phones which were recovered from the person of the accused is not mentioned in the said panchanama. The said objection is without any basis. A battery is a part of a mobile phone. A mobile phone always comes with a battery. Therefore, the presence of a battery in the mobile phone is not required to be separately mentioned in the panchanama.

607. Another ground on which the recovery of the mobile phones and SIM cards was doubted is that it is not mentioned in the personal search and arrest panchanama (Exh.493) as to who gave the mobile numbers of the SIM cards which were found in the mobile phones. In this regard, it needs to be stated that no question was put to PW.9­Malang Shaikh. That 419 apart, PW.136­PI Kale has clearly stated that the accused persons themselves gave the mobile numbers. Therefore, the said objection is required to be rejected.

OBJECTIONS REGARDING SEIZURE FROM THE ACCUSED NO.2­ANIL WAGHMODE. 608. It has come in the evidence of panch PW.9­Malang Shaikh that during the personal search of the accused no.2­Anil Waghmode which was conducted on 26/06/2011, along with other articles one black colored Nokia mobile phone model 1280 (Article­85) having IMEI no.357383044125291 with SIM card (Article­86) of AIRCEL of mobile no.8898590024, One China made Suncorp mobile phone (Article­89) having IMEI no.359083033506646, 359083033506653 with one SIM card (Article­90) of AIRCEL of mobile no. 8890590018 were found and seized vide personal search and arrest panchanama (Exh.493). His evidence on this point is corroborated by the evidence of PW.136­PI Kale and the contents of the personal search and arrest panchanama (Exh.493).

609. It may be noted that in the statement u/s.313(b) of Cr.P.C.,1973, the accused no.2­Anil Waghmode has taken the following stand with regard to the various articles which were seized at the time of his arrest:

“Q.291: It has come in the evidence of PW.136­PI Kale that during personal search of you accused­Anil Waghmode which was conducted in presence of two panch witnesses, one wallet (Article­79) was found containing cash of Rs.615/­(Article­83), one Voter ID Card (Article­81) and PAN card(Article­80) were found, one black coloured Nokia mobile phone model no.1280 (Article­85) containing SIM card of Aircel company (Article­86) of mobile no.8898590024, another China made mobile phone of Suncorp company(Article­89) containing SIM card (Article­90) of Aircel company of mobile no.8898590018 were found which were seized, sealed and labelled with his signature and the 420

signature of panch witnesses. What do you have to say about it ?

Ans.: I had only a wallet with me.”

610. Thus, it can be seen that though the accused no.2­Anil Waghmode has not disputed the recovery of his wallet from his person, as in the case of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya he has also very smartly disputed the fact that the mobile phones were also found on his person. The prosecution has already proved that the accused no.2­Anil Waghmode was arrested on 26/06/2011. Also, as in the case of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, on 27/06/2011, the accused no.2­Anil Waghmode was also produced before the learned Addl. Chief Metropolitan Magistrate for the purposes of remand. But at that time, he did not make any grievance that the mobile phones were planted on his person. Had the mobile phones been planted on his person then nothing prevented him from making a grievance in that regard before the learned Addl. Chief Metropolitan Magistrate at that time itself. But he did not do so. Hence, it has to be said that the stand taken by the accused no.2­Anil Waghmode is false.

OBJECTIONS REGARDING SEIZURE FROM THE ACCUSED NO.4­NILESH SHEDGE 611. As per the prosecution, during the personal search of the accused no.4­Nilesh Shedge the mobile phone (Article­142) having the SIM card (Article­144) of the mobile no.9743193148 and the said the mobile phone and the SIM card was seized vide recovery and arrest panchanama (Exh.512). It may be noted that during the course of arguments, the learned Advocate for the accused no.4 did not raise any dispute about the recovery of the above mentioned mobile phone and the SIM card. But, as 421 the prosecution did not prove the CDR of the said mobile number for want of certificate u/s 65B of the Evidence Act,1872 by the concerned Nodal Officer, the same cannot be used by the prosecution. Hence, the recovery of the said mobile phone and the SIM card is of no use to the case of the prosecution.

OBJECTIONS REGARDING SEIZURE FROM THE ACCUSED NOS.5,6 AND 7. 612. It has come in the evidence of panch PW.10­Habib Mansuri that during the personal search of the accused no.5­Arun Dake which was conducted on 26/06/2011, along with other articles one black colored Nokia mobile phone (Article­102) [having IMEI no.356264048565537] without SIM card, one gray colored Nokia mobile phone (Article­106) [having IMEI no.357421048060302] with SIM card (Article­108) of mobile no.9987017977, one memory card adapter (Article­114), one SIM card of IDEA (Article­115) [bearing sr.no.8991799004118974605­5] were found. Similarly, during the personal search of the accused no.6­Mangesh Aagvane along with other articles one black colored Nokia mobile phone (Article­117) [having IMEI no.355737027054103] with SIM card (Article­ 119) of mobile no.9967844960 was found. During the personal search of the accused no.7­Sachin Gaikwad along with other articles one black colored Reliance mobile phone (Article­131) [having RSN no.RLGHS 1034346055] with SIM card of mobile no.9320816594 (Article­133), one Nokia mobile phone (Article­135) [having IMEI no.353938014315554] with SIM card (Article­137) of mobile no.9768114422, one SIM card of mobile no.9004328040 (Article­140) and 8652475214 (Article­139) were found and all the above articles were seized vide personal search and arrest panchanama (Exh.504). His evidence is corroborated by the evidence of PW.134­PI Pasalwar and the contents of the panchanama 422

(Exh.504). Also, the details of the above articles which are reflected in the panchanama (Exh.504) correspond with the articles which are before this Court.

613. It may be noted that in the statement u/s.313 (b) of Cr.P.C.,1973, the accused no.5­Arun Dake has taken the following stand with regard to the various articles seized from his person at the time of his arrest :

“Q.251: It has come in the evidence of PW.10­Habib that on 26/06/2011, he was called to the office of Crime Branch for acting as a panch witness and during the personal search of you accused, two mobile phones of Nokia company(Articles­ 102,106) and one wallet(Article­110) containing a currency note of Rs.500/­(Article­112) were recovered and seized. What do you have to say about it ?

Ans.: No panchnama was prepared. On 20th in the night, I was in room no.301, Mangeshi Apartment, Adharwadi, Kalyan. At that time, two Hawaldars came to my house in civil dress and told me that I was called by officer Gosalkar in Crime Branch Unit no.1 next day in the morning for enquiry. Accordingly, I had gone there and I was made to sit there. I did not have any mobile phone with me. I had one SIM card with me. I had not used that SIM card. I also had a railway pass with me.

Q.253: As per personal search and arrest panchanama(Exh.504) during the personal search of you accused which was conducted on 26/06/2011 in the office of Crime Detection Branch, Property Cell, Mumbai, one black coloured Nokia mobile phone model no.2233 having IMEI nos.356264048565537(Article­102) was seized. What do you have to say about it ?

Ans.: I do not know.

Q.254: As per personal search and arrest panchanama(Exh.504) during the personal search of you accused which was conducted on 26/06/2011 in the office of Crime Detection Branch, Property Cell, Mumbai, one gray coloured Nokia mobile phone model no.1280 having IMEI nos.357421048060302(Article­106) 423

having SIM card of Airtel company bearing mobile no.9987017977(Article­108) was recovered and seized. What do you have to say about it ?

Ans.: It is not correct.

Q.255: As per personal search and arrest panchanama(Exh.504) during the personal search of you accused which was conducted on 26/06/2011 in the office of Crime Detection Branch, Property Cell, Mumbai, one SIM card of Idea company bearing no.8991799004118974605(Article­115) was recovered and seized from black coloured leather packet which was kept in the back side pocket of the pant which you were wearing. What do you have to say about it ?

Ans.: It is not correct. A SIM card of Airtel company was found.”

614. In the statement u/s.313(b) of Cr.P.C.,1973, the accused nos.6 and 7 have denied that any mobile phone or SIM card was seized from them during their personal search. At the same time, while giving answer to question no.315 in the statement which was recorded u/s.313(b) of Cr.P.C.,1973, the accused no.7­Sachin Gaikwad has stated that the black coloured wallet containing cash of Rs.710/­ (Article­129), one PAN card (Article­126), one driving license (Article­124) and one ATM card of Syndicate Bank (Article­125) were taken from him on 24/06/2011.

615. Thus, it can be seen that the accused nos.5,6 and 7 have disputed the fact that the above mentioned mobile phones and SIM cards were also found on their person. The prosecution has proved the recovery of the above articles through the evidence of panch PW.10­Habib Mansuri and PW.134­PI Pasalwar. Their evidence is duly corroborated by the panchanama (Exh.504). In so far as the stand taken by the accused no.5­ Arun Dake is concerned he has stated that he did not know that the Nokia mobile phone (Article­102) was seized from him. If no mobile phone was 424 seized from him, then nothing prevented him from giving a straight answer that the said mobile phone was not seized from him. At the same time, the accused no.5­Arun Dake has admitted that SIM card (Article­ 108) of Airtel company was seized from him. He has not explained as to why he was having that SIM card if he was not using any mobile phone. That apart, his statements further falsifies the stand of the defence that no personal search was conducted on 26/06/2011. The seizure of the mobile phones and the SIM cards further finds support from the fact that there is nothing on the record to suggest that PW.134­PI Pasalwar was already knowing the accused nos.5,6 and 7 so as to falsely implicate them. Also, on 27/06/2011, the accused nos.5,6 and 7 were produced before the learned Addl. Chief Metropolitan Magistrate for the purposes of remand. But at that time they did not make any grievance that the various mobile phones and the SIM cards which were shown to be seized from them were in fact never seized or that they were planted. Hence, it has to be said that the stand taken by the accused nos.5,6 and 7 is false.

616. It may also be noted that during the personal search of the accused no.5­Arun Dake his driving license (Article­264) and his voter ID card (Article­265) were found in his wallet (Article­110). So also, during the personal search of the accused no.7­Sachin Gaikwad his driving license (Article­124), ATM card (Article­125) were found in his wallet (Article­ 123). There is absolutely no evidence to suggest that they could be planted by the Police on their person.

617. It has been brought in cross­examination of the panch PW.10­Habib Mansuri that he did not personally touch (handle) the articles and that he saw them from a distance. Thus, it is sought to be contended that the personal search of the accused no.5­Arun Dake or for that matter the 425 personal search of the accused nos.6 and 7 also, was not conducted in presence of the panch witnesses. There is no requirement of the law that the panch witness should personally handle the articles which are seized from the person of the accused. In fact, had the panch witnesses done so the there would have been an argument that the same was done with the intention of tampering with the articles. Also, there is nothing in the evidence of the panch PW.10­Habib Mansuri to suggest that the personal search and the seizure of the articles from the person of the accused nos.5,6 and 7 was not effected in his presence or in the presence of the other panch witness. Hence, the objection raised on this count needs to be rejected.

618. It was next argued that the seizure of the mobile phones from the person of the accused nos.5,6 and 7 has no value as there is nothing to suggest that the mobile phones were in working condition. The said submission also does not have any merit. Whether the mobile phones which were seized from the accused nos.5,6 and 7 were working on 26/06/2011 is not important. What is important was that whether those mobile phones were working and were used during the period when the incident took place. That can be ascertained only from the CDRs of the mobile numbers and the IMEI number of the mobile handset which is imprinted on the mobile phones. The various CDRs show that the SIM card mobile numbers recovered from the accused nos.5,6 and 7 were active at the relevant time.

619. The seizure of the mobile phones and the SIM cards from the accused persons was also doubted on the ground that panch PW.10­Habib Mansuri did not remember whether there were SIM cards in the mobile phones, what was the model number of the mobile phones and their IMEI 426 number, whether any additional SIM card was recovered from the accused no.5­Arun Dake and what was the mobile number of the SIM cards. There is no merit in the said submission. It is impossible for person to remember such details. The witness has given the details of the articles which are sufficient for their identification. The witness has also identified the mobile phones and the SIM cards to be the same which were seized. As stated earlier, the details of these articles correspond with the details mentioned in the panchanama (Exh.504). That apart, had the panch PW.10­Habib Mansuri given the above details then defence would not have left any stone unturned to brand him as a tutored witness. Therefore, the submission made on this point cannot be accepted.

620. The personal search and arrest panchanama (Exh.504) was then sought to be doubted on the ground that the presence of the batteries of the mobile phones which were recovered from the person of the accused is not mentioned in the said panchanama. A battery is a part of a mobile phone. As observed earlier, a mobile phone always comes with a battery. Therefore, the presence of a battery in the mobile phone is not required to be separately mentioned in the panchanama.

621. The seizure of the mobile phone (Article­131) of LG company from the person of the accused no.7­Sachin Gaikwad was doubted on the ground that in the panchanama, it is not mentioned that the word 'Reliance' was embossed on the mobile phone (Article­131), but the mobile phone before the Court shows that the word 'Reliance' is embossed on it and therefore, the mobile phone (Article­131) is not the same mobile phone which was seized. It is a very minor discrepancy and the same needs to be ignored. The personal search & arrest panchanama (Exh.504) shows that a CDMA mobile phone of the LG company was seized from 427 the person of the accused no.7­Sachin Gaikwad. The mobile phone (Article­131) which is before the Court is of LG company. At the relevant time, the Reliance company used to provide the CDMA services to its customers. Therefore, the word 'Reliance' is embossed on the mobile phone (Article­131). It may also be noted that the identity of a mobile phone is fixed on the basis of its IMEI number if it is a GSM handset and on the basis of the RSN number if it is a CDMA handset. In the present case, the RSN number found on the mobile phone (Article­131) corresponds with the RSN number mentioned in the panchanama (Exh.504).

622. There is another small discrepancy with respect to the model number of the mobile phone (Article­102) which was seized from the person of the accused no.5­Arun Dake. In the panchanama (Exh.504) its model number is mentioned as '2233' whereas its model number is '5233'. It may be noted that the font size of model number which is printed on the mobile phone (Article­102) is quite small and one may find it difficult to read it properly. Therefore, it is quite possible that due to small font size, PW.134­PI Pasalwar might have read the model number as '2233' instead of '5233'. The error appears to be bonafide. This can happen with anybody. That apart, the IMEI number found on the mobile phone (Article­102) and the IMEI number mentioned in the panchanama (Exh.504) is one and the same. Therefore, much importance cannot be attached to the said error.

623. It was next contended that the personal search of the accused nos.5,6 and 7 was never conducted as the articles were directly shown to the panch witnesses and the panchanama was prepared. It was also argued that the part of the body from where the mobile phones were 428 found is also not mentioned in the panchanama. This submission is a result of the hair­splitting exercise carried out by the learned Advocate for the accused nos.1,6 and 7 forgetting the fact that while analyzing the evidence it has to be considered as a whole. In paragraph nos.17 and 18 of the evidence of PW.10­Habib Mansuri he has clearly stated that all the three accused persons were searched one by one by the same Police Officer and then the panchanama was drawn. The fact that PW.134­PI Pasalwar performed his duty honestly is clear from his statement that before the panch witnesses arrived he did not try to find out what articles were present on the person of the accused nos.5,6 and 7. Also, the mere fact that in the panchanama it is not mentioned as from which part of the body the mobile phones were found and seized is of no consequence. Considering the size of the mobile phones which were found on the person it cannot be said there is anything suspicious. It is not as if any of the mobile phones which was found on the person of the accused nos.5,6 and 7 could not have been so found owing to its size or dimension.

624. The personal search and panchanama (Exh.504) was also doubted on the ground that according to PW.134­PI Pasalwar after the proceedings of the panchanama were over the contents of the same were read over to the panch witnesses and thereafter the printout of the same was taken whereas in the panchanama it was recorded that the printout of the panchanama was first taken and then the panch witnesses were made to understand the same. The discrepancy is of minor nature and does not go to the root of the matter. However, it must be stated that the objection raised by the learned Advocate for the accused nos.1,6 and 7 is another example of the hyper­technical approach adopted.

625. It was next argued that the failure on the part of PW.141­PI Gosavi 429 to record the statement of the Officers who conducted the personal search of the accused nos.5,6 and 7 creates a doubt about the authenticity of the proceedings of personal search and arrest of those accused persons. It may be noted that section 161 of Cr.P.C.,1973 does not mandate that the statements of the Officers should be recorded or must be recorded. It is the discretion of the Investigating Officer. Therefore, in absence of any material to create any suspicion, the said objection needs to be rejected.

OBJECTIONS REGARDING RECOVERY OF I­PHONES (ARTICLE­287, 291) AND I­PAD (ARTICLE­171) FROM THE ACCUSED NO.12­CHHOTA RAJAN AND THE DATA RETRIEVED FROM THE I­PHONE (ARTICLE­291) 626. During the course of the arguments, the learned Advocate for the accused no.12 disputed the recovery of the two I­Phones (Article­287, 291) and the I­Pad (Article­171) from the accused no.12­Chhota Rajan at the time of his deportation from Bali, Indonesia. It was submitted that the above articles do not belong to the accused no.12­Chhota Rajan. Therefore, it is necessary to discuss the evidence led by the prosecution on this aspect.

627. PW.147­Rajeev Sinha was working as Inspector, CBI (Spl.­II), Crime Branch, New Delhi at the relevant time. He deposed that on 31/10/2015 the case no.RC 7­A/2015/SCU­V/SC­II/CBI/New Delhi was registered against the accused no.12­Chhota Rajan and unknown public servants and others on the allegation of procurement of fake passport in the name of one Mohan Kumar by the accused no.12­Chhota Rajan. He deposed that he was the Investigating Officer in that case. He deposed that he came to know that the accused no.12­Chhota Rajan was detained at Bali, Indonesia while traveling on the passport in the name of one Mohan Kumar. He deposed that a team of Interpol, India led by Shri Sonal Agnihotri, SP, CBI 430 was going to Bali, Indonesia for the purposes of deportation of the accused no.12­Chhota Rajan and a request was made to Interpol, India for handing over the custody of the accused no.12­Chhota Rajan to his Office for the purposes of investigation in the above mentioned case. He deposed that on 06/11/2015, a team of Interpol returned to India along with the accused no.12­Chhota Rajan and his belongings. He deposed that Shri Sonal Agnihotri, SP, CBI handed over the two I­Phones (Article­287 and 291) and the I­Pad (Article­171) to him and as they were in open condition he got the above mentioned articles sealed in separate packets and memorandum (Exh.1470) was prepared. He deposed that the sealing of the articles and memorandum (Exh.1470) was prepared in presence of PW.148­Basil Kerketta who was the Additional SP, CBI, SC­II, New Delhi.

628. PW.147­Rajeev Kumar Sinha deposed that on 04/02/2016, PW.152­ IO, CBI requested him to hand over the custody of the above mentioned two I­Phones and the I­Pad for investigation purposes with reference to the present case. He deposed that he handed over the above articles to PW.152­IO, CBI in presence of PW.148­Basil Kerketta on the same day and the memorandum (Exh.1471) was prepared in that regard.

629. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that he was not a member of the team which had gone to Bali Indonesia for bringing back the accused no.12­Chhota Rajan to India. He stated that the Police from Bali, Indonesia had handed over the articles belonging to the accused no.12­Chhota Rajan on 05/11/2015. He stated that he was aware that out of the three articles mentioned in the memorandum (Exh.1470) one article was added in handwriting in the list of articles which was prepared and given by the Authorities at Bali to the Interpol team. He stated that he did not mention the IMEI number of the 431 mobile phones in the memorandum (Exh.1470) as the articles were in switch off mode when they were handed over to him. He stated that he did not want to open those articles to avoid tampering. He admitted that all the three articles were handed over to him in open (unsealed) condition. He admitted that the seizure panchanama regarding the recovery of the other articles from the accused no.12­Chhota Rajan and the memorandum (Exh.1470) were prepared on the same day in the Office of the CBI. He stated that the articles were handed over by the Authorities of Indonesia to the Officers of the Interpol, India. He stated that in the memorandum (Exh.1470) it was not mentioned that the I­ Phone (Article­291) had back cover and that the I­Pad (Article­171) was in a cover. He denied that the black coloured I­Phone (Article­291) was not recovered from the accused no.12­Chhota Rajan and because of that it was inserted later on in the list of articles which were seized from the accused no.12­Chhota Rajan. He stated that the articles were noted in handwriting in the middle portion of the minutes of surrender. He admitted that no initials were made by the Indian Authorities regarding writing of the articles in hand in the said list. He denied that the initials were not made as the 'article' was added later on.

630. PW.148­Basil Kerketta deposed that on 06/11/2015, he had seized the two I­Phones (Article­287, 291) and the I­Pad (Article­171) and sealed them in separate envelopes for their safety and security as they were received in open condition. He deposed that the memorandum (Exh.1470) was prepared in that regard. He deposed that the articles were then kept in the Malkhana. He deposed that by the letter dated 11/03/2016 (Exh.1476) he had forwarded the above mentioned articles to the FSL for analysis. 432

631. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that he did not remember whether he had signed any document relating to mobile phone and the I­Pad after the accused no.12­Chhota Rajan was arrested and brought to India. He stated that he did not know how many articles were seized from the accused no.12­Chhota Rajan after he was brought to India.

632. PW.152­IO CBI deposed that during the further investigation conducted by him he came to know that two I­Phones and one I­Pad belonging to the accused no.12­Chhota Rajan were taken in custody for the purposes of investigation of the case no. RC 7­A/2015/SCU­V/SC­ II/CBI/New Delhi and therefore, he took the custody of those articles for the purposes of this case. He deposed that the receipt memorandum (Exh.1471) was prepared in that regard. He deposed that when he took the custody of those articles they were already in sealed condition. He deposed that after taking the custody of those articles, he forwarded the same to the FSL,Kalina for analysis.

633. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that the above articles were sent for analysis to FSL,Kalina and not to CFSL,New Delhi as at the relevant time, experts were not available in CFSL,New Delhi. He denied that the two I­Phone (Article­287, 291) and I­ Pad (Article­171) were intentionally sent to FSL,Kalina so that the same can be tampered for obtaining favourable report.

634. The perusal of the evidence of PW.147­Rajeev Sinha, PW.148­Basil Kerketta and PW.152­IO, CBI will show that it is not the specific case of the accused no.12­Chhota Rajan that the two I­Phones (Article­287, 291) and I­Pad (Article­171) did not belong to him. This fact is further clear 433 from the suggestion given by the learned Advocate for the accused no.12 to PW.147­Rajeev Kumar Sinha during cross­examination. There was a specific suggestion that only the black coloured I­Phone (Article­291) did not belong to the accused no.12­Chhota Rajan. No suggestion was given to this witness that the I­Phone (Article­287) and the I­Pad (Article­171) did not belong to the accused no.12­Chhota Rajan. This shows that the learned Advocate for the accused no.12 has denied the recovery of the I­ Phone (Article­291) only because it contained some incriminating material against the accused no.12­Chhota Rajan. The evidence of PW.147­Rajeev Kumar Sinha clearly shows that the two I­Phones and the I­Pad were recovered from the Police at Bali, Indonesia and were handed over to the Interpol team of India which had gone there for bringing back the accused no.12­Chhota Rajan to India. He then got the custody of the above articles from the Interpol team, India and as the articles were in open condition he ensured that the articles were immediately sealed to avoid any allegation of tampering. No fault can be found with the approach of PW.147­Rajeev Kumar Sinha. His evidence on this point is duly corroborated by the evidence of PW.148­Basil Kerketta. The fact that the articles were kept in sealed condition after they were recovered is further clear from the evidence of PW.152­IO, CBI. At this stage, it may be stated that it is not the stand of the accused no.12­Chhota Rajan that the data which was retrieved from the I­Phone (Article­291) was planted by the CBI.

635. In the cross­examination of PW.147­Rajeev Kumar Sinha, it was brought on record that after the accused no.12­Chhota Rajan was caught at Bali, Indonesia the local Police had prepared a list of articles which were found to be with him at that time and the two I­Phones and the I­Pad were added in the list later on by hand. It may be noted that answers on this point were sought from the witness without confronting him with the 434 alleged list of articles which was prepared at the Bali, Indonesia. The said list was not even placed on record by the learned Advocate for the accused no.12. As such, the said list was not before the Court. Therefore, in absence of the said list, it cannot be automatically said that the I­Phones and the I­Pad were planted. In any case, the evidence of PW.147­Rajeev Kumar Sinha and PW.148­Basil Kerketta on this point is reliable and duly corroborated by the memorandum (Exh.1470).

636. In so far as the data which was retrieved from the I­Phone (Article­ 291) is concerned, it may be noted that the said I­Phone alongwith the I­ Phone (Article­287) and the I­Pad (Article­171) was sent to the FSL,Kalina for analysis. After the analysis, the data which was extracted from the two I­Phones (Article­287 & 291) and the I­Pad (Article­171) was deposited in the Court in the form of DVD (Article­294) alongwith the report (Exh.1305).

637. It may be noted that the prosecution did not produce the certificate u/s.65B of the Evidence Act,1872 along with the DVD (Article­294) in which the data extracted from the I­Phones and the I­Pad of the accused no.12­Chhota Rajan was copied after it was retrieved by using forensic tools. Therefore, the question which arises for consideration is whether in absence of such certificate the data contained in the DVD (Article­294) can be read in evidence?. But a more important question which needs to be answered is whether such certificate is required to be furnished as the examination report (Exh.1305) is directly admissible u/s.293 Cr.P.C.,1973. It will be appropriate to answer this question first. However, before doing so, it needs to be stated that during the course of hearing, the learned Advocate for the accused no.12 was requested by the Court to address on this point. His only submission was that since the data in the 435

DVD (Article­294) was in the nature of secondary evidence and without a certificate u/s.65B of the Evidence Act, 1872 the same cannot be read in evidence.

638. Section 293 of Cr.P.C.,1973 is a special provision which makes admissible the reports of those Scientific Experts which have been enumerated expressly in section 293(4) of Cr.P.C.,1973. Obviously, the special provision u/s.293 of Cr.P.C.,1973 will prevail over the general provisions of the Evidence Act,1872. Therefore, the particular provisions regarding admissibility of the reports of Chemical Examiner or Assistant Chemical Examiner to Government provided u/s.293(4) of Cr.P.C.,1973 are plainly applicable and any document purporting to be a report of such expert can very well be used as evidence at the trial. Now, once such a report is made admissible by law, then it would be wholly hyper­technical to dissect it into different parts and hold that certain parts of such report are admissible and certain part are not admissible. Therefore, this Court is of the view that in so far as the data contained in the DVD (Article­294) is concerned, the same can be read in evidence as it is a part of the examination report (Exh.1305) which is directly admissible u/s.293 of Cr.P.C.,1973 and the certificate u/s.65B of the Evidence Act, 1872 is not required.

639. Let's assume for a moment that the certificate u/s.65B of the Evidence Act,1872 is required to enable the Court to read the contents of the DVD (Article­294) in evidence. Then it will have to be seen whether in the facts of the present case, such certificate can be insisted upon. In this regard, it is necessary to have a look at the relevant portion of the evidence of PW.151­Chemical Analyst. In paragraph no.7 of his evidence, he has deposed as follows: 436

“7. I have not brought the certificate u/s 65­B of the Evidence Act today. At present, I am not working with the FSL. Therefore, I cannot bring the certificate. The report (Exh.1305) is processed under section 65­B of the Evidence Act and the CD is the part of that report. The report (Exh.1305) is prepared on the basis of original digital evidence from the data of the two mobile phones and I­Pad (Articles­287, 291 and 171 accordingly.). The computer on which the data was processed was regularly used to process the information about the articles sent for analysis that is for data extraction. At that time, I was having the control of that computer. The computer was being properly operated during that period. I had myself fed the required information in the computer for the purposes for getting it copied on the DVD.”

640. From the evidence of PW.151­Chemical Analyst it can be seen that he has specifically stated that he cannot produce such certificate as he is no longer working with the FSL,Kalina. He did not have any access to the device which was used to retrieve the data. Recently, in the case of Shafhi Mohammad V. The State of Himachal Pradesh (SLP (CRL.) No.2302/2017, order dated 30/01/2018) the Hon'ble Supreme Court of India while dealing with the question of production of the certificate u/s.65B of the Evidence Act,1872 by a person who is not in possession of the device from which the document is produced has held that in such cases, he cannot be directed to produce such certificate and such condition can be relaxed by the Court in the interests of justice. For ready reference, paragraph no.12 of the said order is reproduced below:

“(12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65­B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.” 437

641. The observations made by the Hon'ble Supreme Court of India in the case of Shafhi Mohammad (supra) are squarely applicable to the present case. Therefore, in the facts of the present case, even if it assumed that the certificate u/s.65B of the Evidence Act,1872 is necessary for reading the contents of the DVD (Article­294) in evidence, the same cannot be insisted upon and this is a fit case where in view of the evidence of PW.151­Chemical Analyst requirement of certificate can certainly be relaxed in the interests of justice. As such, the contents of the DVD (Article­294) can be read in evidence.

OBJECTIONS REGARDING THE VARIOUS RECOVERIES MADE IN VIEW OF THE DISCLOSURE STATEMENT MADE BY SOME OF THE ACCUSED PERSONS.

OBJECTIONS REGARDING THE RECOVERY OF REVOLVER, CARTRIDGES ETC. AT THE INSTANCE OF THE ACCUSED NO.1­ROHEE TANGAPPAN JOSEPH @ SATISH KALYA AND CA/BALLISTIC REPORTS. 642. The learned Advocate for the accused no.1 has tried to show that the recovery of the revolver, cartridges and the empties at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya are doubtful. He has raised several grounds. They are discussed below.

643. It was submitted that the disclosure statement (Exh.1272) made by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya on 26/11/2011 is doubtful for the reason that he could not have remained present at two places i.e. in the Crime Branch Unit no.6, Chembur and in the Property Cell, Crawford market at one and the same time. The said submission has no merit. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya was arrested by PW.136­PI Kale on 26/6/2011 in the afternoon. PW.136­PI Kale was attached to Crime Branch Unit no.6, Chembur. It has come in his evidence that for arresting the accused no.1­Rohee Tangappan Joseph @ 438

Satish Kalya and for his personal search two panch witnesses namely Rashid Ibrahim Baig and PW.9­Malang Sheikh were called for at about 01:30 pm. The perusal of the evidence of panch PW.9­Malang Sheikh will show that on 26/06/2011, he was called by the DCB, CID Unit no.6 office, Chembur for the purposes of acting as panch witness and accordingly he had gone there at about 01:30 pm. and in his presence the personal search and arrest panchanama (Exh.493) was prepared after following the due procedure. The panch PW.9­Malang Sheikh identified the accused no.1­ Rohee Tangappan Joseph @ Satish Kalya before the Court. The evidence of panch PW.9­Malang Sheikh is corroborated by the personal search and arrest panchanama (Exh.493) and the oral evidence of PW.136­PI Kale on material points.

644. According to PW.136­PI Kale, on the same day during interrogation, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya expressed his desire to make a disclosure statement. Therefore, PW.136­PI Kale called for two panch witnesses namely PW.129­Balu Panchange and Devidas Vilas Shelar. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya disclosed in their presence that he was ready to show the place where the revolver, cartridges and the rain­coat were kept. Accordingly, the said disclosure statement (Exh.1272) was recorded and the signature of the panch witnesses were taken on it. Thereafter, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya led them to the house (room) of the accused no.2­Anil Waghmode at the Wahab Chawl, Andheri and produced one plastic bag containing a revolver, 20 cartridges, 5 empties and a rain­ coat which were then seized in presence of the panch witnesses vide panchanama (Exh.1272­A). It has come in his evidence that the proceedings of the panchanama were completed at about 07:00 pm. 439

645. The learned Advocate for the accused no.1 submitted that it has come in the evidence of PW.123­Aslam Haji Rehman that on 26/06/2011, on being called, when he went to the Office of Property Cell, Crawford market between 05:00 pm to 05:30 pm, he saw the accused no.1­Rohee Tangappan Joseph @ Satish Kalya present there along with the accused no.7­Satish Gaikwad. On the basis of this, it was argued that if on 26/06/2011, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was present in the Office of Property Cell, Crawford market it was impossible for him to be along with PW.136­PI Kale at Chembur at the same time. He also relied upon the evidence of PW.67­PC Pradip Kadam who was attached to the Crime Branch Unit no.6, Chembur to show that nobody connected with this case was neither interrogated in his presence nor was brought to the Office of the Crime Branch Unit no.6, Chembur in his presence.

646. Before considering the above submission, it is necessary to have a look at the evidence of PW.134­PI Pasalwar, panch PW.10­Habib Jamal Mansuri, and the evidence of panch PW.123­Aslam Haji Rehman. PW.134­ PI Pasalwar was attached to the Property Cell, Crime Branch, Crawford market at the relevant time. It has come in his evidence that on 26/06/2011, after he took the custody of the accused no.5­Arun Dake, the accused no.6­Mangesh Aagvane and the accused no.7­Sachin Gaikwad and he then arrested them in presence of panch witnesses namely Abdul Matin Niyaz Ahmed and PW.10­Habib Jamal Mansuri vide personal search and arrest panchanama (Exh.504) and for that purpose the panch witnesses were called for at about 04:00 pm to his office. It has further come in the evidence of PW.134­PI Pasalwar that on the same day at about 06:00 pm, as the accused no.7­Sachin Gaikwad expressed his desire to make a disclosure statement, he called for two panch witnesses namely PW.123­ 440

Aslam Haji Rehman and Siddiqui Imran Ahmed Niyaz Ahmed. PW.134­PI Pasalwar has further deposed that thereafter in presence of the panch witnesses the accused no.7­Sachin Gaikwad disclosed that he was ready to show the place where he had kept the motorcycle (Article­233). Accordingly, the disclosure statement (Exh.1204) was recorded in the presence of panch witnesses. Thereafter, the accused no.7­Sachin Gaikwad led them to Buddh Vihar, Subhashchandra Bose Nagar, Chembur and produced the motorcycle bearing registration no. MH­06­AH­4891 (Article­233) which was seized in presence of the panch witnesses vide panchanama (Exh.1205).

647. The perusal of the evidence of panch PW.123­Aslam Haji Rehman shows that he was called to the Property Cell, Crime Branch, Crawford market for acting as panch witness on two occasions. He was firstly called on 26/06/2011 and secondly on 07/09/2011. For the present, his evidence regarding the proceedings which were conducted on 26/06/2011 is relevant. In that regard, he deposed that on 26/06/2011, he was called by the Police in the afternoon and when he went there he saw 3­4 persons, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.7­Sachin Gaikwad. He deposed that the accused no.7­Sachin Gaikwad and the accused no.1­Rohee Tangappan Joseph @ Satish Kalya told that they would show them a spot. Thereafter, he stated only about the disclosure statement made by the accused no.7­Sachin Gaikwad. It is not relevant for the present purposes. But it needs to be stated that as he did not give proper answers to the questions put to him, he was required to be cross­examined on behalf of the prosecution. In the cross­ examination conducted by the learned SPP, he did not say a word about the presence of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya in the Property Cell on 26/06/2011. 441

648. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that on 26/06/2011, the Policeman had come to him between 03:30 pm to 04:00 pm and he had gone to the Property Cell of the DCB, CID. He then stated that the Policeman had come to him between 03:00 pm to 03:30 pm. He stated that when he went to the Property Cell he saw the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.7­Sachin Gaikwad there. He denied that both of them said that they would show the spot. He then stated that he had gone to the Property Cell at about 05:00 pm to 05:30 pm. He stated that when he went there PW.133­API Gopale was present there. He stated that he could not read, write or speak in Marathi. He stated that he did not have any conversation with PW.134­PI Pasalwar. He stated that he did not tell his name and address to PW.134­PI Pasalwar. He stated that no Police Officer asked him whether he had acted as panch witness on earlier occasion or whether any case was pending against him. He denied that the proceedings of the panchanama (Exh.1204) were completed at 06:30 pm. He stated that they had left the Property Cell by about 05:00 pm to 05:30 pm. He stated that till 05:30 pm the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.7­Sachin Gaikwad were in the Property Cell. He stated that the other panch was present with him in the Property Cell between 03:00 pm to 03:30 pm when he was called there and that he was present with him till the proceedings of panchanama (Exh.1204) were completed till 06:30 pm. He stated that during that time they were introduced to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.7­Sachin Gaikwad.

649. In view of the above position, the question which arises for consideration is whether the evidence led by the prosecution regarding the 442 disclosure statement (Exh.1272) made by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya on 26/06/2011 leading to the recovery of the revolver, cartridges, empties and the rain­coat and the seizure of the same vide panchanama (Exh.1272­A) is reliable?. The answer to this question has to be in the affirmative. The perusal of the evidence of panch PW.129­Balu Panchange and PW.136­PI Kale creates no doubt that on 26/06/2011, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was in the custody of PW.136­PI Kale in the Office of the Crime Branch Unit no.6, Chembur. This fact is fully corroborated by the contents of the disclosure statement (Exh.1272) and the panchanama (Exh.1272­A). On the other hand, the perusal of the evidence of panch PW.123­Aslam Haji Rehman shows that he was a very smart operator. No doubt he was a witness of the prosecution. But he was deposing with a purpose and the purpose was to sow the seeds of doubt in the mind of the Court and at the same time show that he was with the prosecution. His evidence shows that he was trying to sail in two boats at the same time. On some points he deposed in favour of the prosecution and on material points he tilted in favour of the defence. He was a witness who was neither wholly reliable nor wholly unreliable. Hence, for relying on his evidence, there must be some other evidence to support his evidence. But there is no material on the record to corroborate his statement that he saw the accused no.1­ Rohee Tangappan Joseph @ Satish Kalya along with the accused no.7­ Sachin Gaikwad in the Property Cell, Crawford market on 26/06/2011 and in absence of the same his evidence on that point cannot be relied upon as against the evidence of panch PW.129­Balu Panchange and PW.136­PI Kale which is reliable, trustworthy and free from suspicion and further supported by the necessary documentary evidence. There is nothing in their evidence to suggest that either of them was personally knowing the accused no.1­Rohee Tangappan Joseph @ Satish Kalya so as 443 to have any animosity or grudge against him. There was no reason for them to falsely implicate the accused no.1­Rohee Tangappan Joseph @ Satish Kalya in this case.

650. There is one more reason for not placing any reliance on the evidence of panch PW.123­Aslam Haji Mansuri on this point. He was called to the Property Cell on 26/06/2011 by PW.134­PI Pasalwar. If, at that time, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was really present there along with the accused no.7­Sachin Gaikwad, then nothing prevented the learned Advocate for the accused no.1 from putting a direct question in that regard to PW.134­PI Pasalwar or any other Investigating Officer of this case as a favourable answer would have not only shattered the case of the prosecution regarding the arrest of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya by PW.136­PI Kale on 26/06/2011 but it would have also created a strong suspicion about the recovery of the revolver and cartridges at his instance. But what was done was that a general suggestion was given to PW.136­PI Kale that “accused” were present in the Office of Crime Branch at Crawford market and that prior to arresting them they were kept in the Property Cell of the Crime Branch which was rightly denied by him. Similarly, in so far as the statements made by PW.67­HC Pradip Kadam are concerned, he was in no way concerned with the investigation of this case. He used to look after the Court work of Unit No.6 (Pairavi Adhikari). That means he must be out of the Office on most occasions during the day time. Therefore, he would not have known anything about the investigation of this case. In any case, PW.136­PI Kale was his superior Officer and he was not expected to divulge the details of the investigation to PW.67­HC Pradip Kadam. Also, just because no accused was brought or interrogated 'in his presence' in the Crime Branch Unit no.6, Chembur it does not mean that 444 no accused of this case was ever brought or interrogated in the Office of the Crime Branch, Unit no.6, Chembur.

651. The recovery of the articles was also sought to be doubted on the ground that PW.136­PI Kale had called the panch witnesses at 01:00 pm which suggests that PW.136­PI Kale was already aware that the disclosure statement of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was to be recorded. The said submission is made in ignorance of the facts which have come on the record through the evidence of PW.136­PI Kale. Firstly, it needs to be made clear that there is no legal requirement that the disclosure statement must be recorded in the presence of panch witnesses. That apart, the perusal of the cross­examination of PW.136­PI Kale will show that after he was cross­examined on a particular point an attempt was made to catch him off guard by putting tricky questions to him for eliciting favourable answers. To show how PW.136­PI Kale was sought to be tricked, paragraph no.30 of his cross­examination is reproduced below:

“30. I am knowing Balu Panchange and Dinkar Shelar (panch witnesses with regard to panchnama Exh.1272 and Exh.1272­A) since the year 2009. It is true to say that till 26.06.2011 both these persons had acted as panch witnesses on at least 6 occasions. It is true to say that in the year 2012, both these persons had acted as panch witnesses in at least three cases. It is not true to say that the crime branch Unit no.6 is also having its office at Diamond Garden, near the house of MP Shri. Gurudas Kamat, Chembur. It is true to say that the panchnama is not in my handwriting. I have only singed it. The panch witnesses were brought by the police constable. They had come one after another. They had come after a time gap of 5­7 minutes. At around 01:00 p.m. I had told my staff to bring the panch witnesses. The panch witnesses had come about 10 minutes prior to starting of the proceedings of the panchnama. It is true to say that I told the constable for what purpose the panch 445

witnesses were required. It is true to say that the panchnama was prepared in accordance with the purpose for calling the panch witnesses. It is true to say that the signature of the accused was not taken on the panchnama. The fact that both the panch witnesses were taken to the accused and the accused lifted the veil upto his forehead is mentioned in the panchnama. It is true to say that it is not specifically stated in the panchnama that the veil of the accused was lifted upto his forehead. I cannot assign any reason as to why the fact that both the panch witnesses were taken to the accused is not mentioned in the panchnama. The portion marked­C of the panchnama is correctly recorded. It is marked as Exh.1372. It is true to say that the name and the signature of the officer who scribed the panchnama is not mentioned in the panchnama. It is not tru e to say that I do not know the contents of the same.”

652. The perusal of the above cross­examination of PW.136­PI Kale will show that initially he was asked about the panch witnesses with respect to the disclosure statement made by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. Thereafter, he was suddenly asked about the location of the Office of the Crime Branch Unit no.6, Chembur. Then he was again asked about the “panchanama”. The words were used cleverly. PW.136­PI Kale was generally asked about when the panch witnesses were called for the panchanama and then he stated that the panch witnesses were brought by a Constable at around 01:00 pm. He was not specifically asked about panch witnesses with regard to the panchanama (Exh.1272­ A) made by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. This aspect is important because earlier on the same day, PW.136­PI Kale had arrested the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and two other accused persons in this case in his Office and for that purpose and for effecting the personal search of the accused persons, two panch witnesses were called for at about 01:30 pm. The proceedings in that regard were completed at around 03:00 pm and it is only thereafter that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya expressed 446 his desire to make the disclosure statement. Therefore, the panch witnesses namely PW.129­Balu Panchange and Devidas Shelar were called for. Thus, the submission that PW.136­PI Kale was already aware at 01:00 pm that the disclosure statement of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was to be recorded deserves to be rejected.

653. Now that it is clear that on 26/06/2011, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was present in the Office of PW.136­PI Kale at Chembur and that he made the disclosure statement (Exh.1272), it will have to be seen whether there is anything to suggest that it was not a voluntary statement. The perusal of the evidence of PW.136­PI Kale will show that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was arrested by him on 26/06/2011 and on the same day during interrogation he showed his willingness to make the disclosure statement. Accordingly, the same was recorded after calling the panch witnesses. There is nothing in the evidence of PW.136­PI Kale to suggest that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was pressurized or coerced or tortured to make the statement (Exh.1272). The accused no.1­Rohee Tangappan Joseph @ Satish Kalya made the disclosure statement (Exh.1272) on the same day on which he was arrested. It was not as if the statement was recorded after many days of his arrest so as to raise any suspicion. The oral evidence of PW.136­PI Kale is duly corroborated by the contents of the disclosure statement (Exh.1272) and the evidence of panch PW.129­ Balu Panchange.

654. It has further come in the evidence of PW.136­PI Kale that after the accused no.1­Rohee Tangappan Joseph @ Satish Kalya made the statement, the articles required for sealing and labeling were taken, that they all including the accused no.1­Rohee Tangappan Joseph @ Satish 447

Kalya sat in a Police vehicle and then the accused no.1­Rohee Tangappan Joseph @ Satish Kalya led them to the house (room) of the accused no.2­ Anil Waghmode at Wahab Chawl, Andheri. PW.136­PI Kale has also deposed that when they there Smt. Sakharabai Bhandudas Waghmode who was the mother of the accused no.2­Anil Waghmode was standing at the door. They disclosed their identity to her and offered themselves for their search but she declined the offer and permitted them to enter the room. Thereafter, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya first entered the room and produced one plastic bag from below a cupboard near a wall. When that plastic bag was opened it was seen that there was a revolver, 20 live cartridges, 5 empties and a rain­coat in it. These articles were separately packed, sealed and labeled with the signatures of the panch witnesses and the signature of PW.136­PI Kale. The evidence of PW.136­PI Kale and panch PW.129­Balu Panchange on this point is consistent, reliable and is corroborated by the contents of the panchanama (Exh.1272­A) on material points. The fact that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was the first person to enter the room and PW.136­PI Kale and others followed him in that room clearly shows that neither PW.136­PI Kale nor panch PW.129­Balu Panchange was aware about the place where the revolver, cartridges and empties were kept till the time they were shown to them by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. The learned Advocate for the accused no.1 could not point out any material defect in the evidence of PW.136­PI Kale or panch PW.129­Balu Panchange so as to create any doubt to show that the statement made by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was not voluntary. During cross­ examination, only a suggestion was given to PW.136­PI Kale and panch PW.129­Balu Panchange that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya neither made any disclosure statement nor any revolver 448 was recovered which was rightly denied by them.

655. It was argued by the learned Advocate for the accused no.1 that the proceedings regarding the panchanama (Exh.1272­A) are suspicious because in the panchanama the sitting position of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, Police officials and the panch winesses in the Police vehicle was not mentioned, that the time at which they reached the Wahab Chawl, Andheri is not recorded, that the Police did not make any enquiry with anybody after going to the Wahab Chawl, Andheri, that the panch witnesses did not personally handle the articles which were seized and that the log book entries about the distance traveled by them were not produced before the Court. It may be noted that though the above objections were raised by the learned Advocate for the accused no.1 with a lot of force, he could not point out any provision under the law which mandates that such acts are required to be performed. In fact, had PW.136­PI Kale noted down all the details then it would have been argued that the panchanama is artificial. Had the panch witnesses personally handled the articles then it would have been argued that the articles were tampered with. Had PW.136­PI Kale made an enquiry with he local persons after reaching the Wahab Chawl it would have been argued that enquiry was made as the statement made by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was not voluntary.

656. In so far as the non­production of the log book is concerned, it has come in the evidence of PW.136­PI Kale that he had seen the relevant entry in the log book. Now, if there was any doubt, the defence had an option to call for the log book for the purposes of satisfying itself. But that was not done. It may be added here that there is always a presumption in favour of the correctness of official acts. The said presumption can be 449 rebutted. But that has not been done in the present case. At this stage, it may also be noted that PW.136­PI Kale has narrated about the route as shown by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya which they followed which leaves no room for an doubt that they were led to that place by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. It is not the stand of the defence that the route as narrated by PW.136­PI Kale does not lead to the Wahab Chawl, Chembur. Further, if no such recovery was effected on 26/06/2011, then nothing prevented the defence from examining Mrs. Sakharabai Anil Waghmode who was present in the house on that day. It is not the stand of the defence that no such person exists or that she was not present in the house on 26/06/2011. Her name would not have been known to PW.136­PI Kale unless he was taken to that house by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya.

657. At this stage, it may be stated that during cross­examination of PW.88­Sunil Waghmode who was the real brother of the accused no.2­ Anil Waghmode it has been brought on the record that on 26/06/2011, the Police did not come to his house. By bring this fact on the record, an attempt was made to create a doubt about the recovery of the revolver, cartridges and the empties. It can be seen that as PW.88­Sunil Waghmode was the real brother of the accused no.2­Anil Waghmode. Therefore, in cross­examination, he was trying to help the accused no.2­Anil Waghmode by saying that on 26/06/2011, the Police did not visit his house. However, if his entire evidence is considered then it will be clear that he has nowhere stated that on 26/06/2011 he was in his house at any point of time. Also, as stated earlier, the fact that the defence did not examine Mrs. Sakharabai Anil Waghmode who was present in the house on 26/06/2011 itself shows that the stand taken is false. In any case, this Court is not 450 inclined to rely on the evidence of PW.88­Sunil Waghmode as the evidence of PW.136­PI Kale and panch PW.129­Balu Panchange is cogent, reliable and trustworthy.

658. It was further argued by the learned Advocate for the accused no.1 that proceedings regarding the panchanama (Exh.1272­A) are suspicious because the room from where the recovery was effected did not belong to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya but it belonged to the accused no.2­Anil Waghmode. It was submitted that at the most it can be said that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya may have had the knowledge that the revolver and cartridges were kept there. If such is the stand, then considering the fact that the prosecution has proved the recovery of the above articles at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, the burden was upon him to show who else other than him could have concealed those articles. There can be three possibilities when an accused points out the place where an incriminating material was concealed without stating that it was concealed by himself. One is that he himself had concealed it. Second is that he would have seen somebody else concealing it and the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the Court that his knowledge about the concealment was on account of one of the last two possibilities then the Court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the only presumption which can be drawn by the Court is that the concealment was made by himself. In the present case, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya has not discharged the 451 burden. There may be a reason for not discharging the burden. The revolver, cartridges and empties were recovered from the room of the accused no.2­Anil Waghmode. It is the case of the prosecution that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.2­Anil Waghmode were close friends and probably because of that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was shy of shifting the blame on the accused no.2­Anil Waghmode. Had he done so, then there was every possibility that the accused no.2­Anil Waghmode might have divulged the secrets of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya to the Police which could have resulted in more trouble for the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. In any case, it is not the stand that the revolver, cartridges and the empties were planted in the house of the accused no.2­Anil Waghmode. Further, if at all, PW.136­PI Kale wanted to plant them then he would have planted the articles in the house of the accused no.1­Rohee Tangapan Joseph @ Satish Kalya to avoid any suspicion and to make the case full proof. Therefore, the recovery of the above articles cannot be doubted.

659. The learned Advocate for the accused no.1 relied upon the judgment in the case of Akhilesh Hajam V. State of Bihar reported in (1995) Supp 3 SCC 357 to contend that recovery of the weapon of offence from an open and accessible place cannot be said to be a recovery on the basis of the disclosure statement. The said judgment is not applicable to the facts of the present case as in the present case the revolver (Article­249), cartridges (Article­250 colly) and the empties (Article­269 colly) were not recovered from a place which was open and accessible to one and all. The said articles were recovered from under the cupboard which was in the house of the accused no.2­Anil Waghmode who was a close friend of the accused no.1­Rohee Tangappan Joseph @ 452

Satish Kalya. It has already been held above that the oral evidence of the panch PW.129­Balu Panchange and PW.136­PI Kale in this regard is beyond suspicion. Therefore, the above judgment is of no use to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya.

660. Another ground on which the recovery proceedings were sought to be challenged is that according to the learned Advocate for the accused no.1, from the evidence of panch PW.129­Balu Panchange and PW.136­PI Kale it is not clear as to who had scribed the contents of the panchanama (Exh.1272­A). According to him, it has come in the evidence of panch PW.129­Balu Panchange that PW.136­PI Kale had scribed the contents of the same whereas according to PW.136­PI Kale he had only signed the same. One wonders how the above statements can affect the correctness of the contents of the panchanama (Exh.1272­A). No argument about the correctness of the contents of the panchanama (Exh.1272­A) were advanced and in absence of the same the doubt sought to be created regarding the proceedings of the panchanama (Exh.1272­A) cannot be entertained. In any case, considering the totality of the evidence of panch PW.129­Balu Panchange and PW.136­PI Kale this is a minor discrepancy which needs to be ignored.

661. It was next argued that the failure of panch PW.129­Balu Panchange to identify the five empties before the Court also casts a serious doubt about the case of the prosecution. It may be noted that the evidence of panch PW.129­Balu Panchange about the recovery and seizure of five empties along with the 20 live cartridges and revolver is consistent. Before going further it is necessary to state that during the course of the investigation, the revolver, 20 live cartridges and the five empties were sent to the FSL,Kalina for analysis. Out of the 20 live cartridges, two of 453 them were test fired for analysis. After the analysis, the 18 live cartridges, 2 empties (of test fired cartridges) and the 5 empties were returned to the DCB CID and the same were then deposited in the Court in sealed condition. It appears that during the course of the evidence, the transparent plastic bag (Article­10) containing the 18 live cartridges and the two empties (of test fired cartridges) were shown to him by the learned SPP and the same were identified by him. The five empties which were also recovered were not shown to him by the learned SPP. That was sheer inadvertence on the part of the learned SPP. This can happen to anybody. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna particularly considering the fact that the prosecution has duly proved the recovery of the revolver, cartridges and empties at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. In any case, panch PW.129­Balu Panchange was not confronted with the contents of the panchanama to prove any omission/contradiction. Having said this, even if the recovery of the empties is kept out of consideration, what is important for the purposes of the present case is that the lead (Article­ 215) found on the spot of the incident and the lead (Article­247) recovered from the body of J.Dey were fired from the revolver (Article­ 249) which was recovered at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya.

662. It was next argued that the possibility of tampering with the revolver (Article­249), cartridges (Article­250 colly.) and the empties (Article­269 colly.) cannot be ruled out as after these articles were seized and sealed on 26/06/2011, the seals appear to have been opened and the articles were shown to media in the press conference which was held on 454

27/06/2011. It is only thereafter that the articles were sent to the FSL,Kalina for analysis on 05/07/2011 i.e.. after 8 days.

663. In Blacks Law Dictionary Eighth Edition, the word 'tamper' is defined to mean 'to meddle so as to alter (a thing); esp., to make changes that are illegal, corrupting, or perverting.' In the present case, it will have to be seen whether there is any evidence of tampering of the revolver, cartridges and the empties which were recovered at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. Any defect in the outer packing alone will not ipso facto lead to the conclusion that there was any tampering of the revolver, cartridges and empties. In this regard, it is necessary to note that as on 26/06/2011, PW.141­PI Gosavi was investigating into this case. Surprisingly, no questions were put to him in cross­examination regarding the recovery of the revolver, cartridges and the empties at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the condition in which they were kept in the muddemal room.

664. It may also be noted that during the course of hearing the learned Advocate for the accused no.1 submitted that the case of the prosecution becomes doubtful as PW.141­PI Gosavi has not given the details of the property which was received by him from the earlier Investigating Officer and the entries about the same in the muddemal register. In the facts of the present case, the above submission has no substance. PW.141­PI Gosavi did not state all the details as he was not asked about the same by the learned SPP and there was a reason for that. All the necessary details regarding the recovery of the revolver, cartridges and the empties were already brought on the record by the prosecution through the evidence of PW.136­PI Kale who was assisting PW.141­PI Gosavi in the investigation. 455

Therefore, perhaps the learned SPP thought it proper not to burden the Court record by going into all the details as it would have have been nothing but the repetition of the evidence of PW.136­PI Kale. That apart, PW.136­PI Kale was thoroughly grilled by the defence and as observed earlier, there is nothing suspicious in his evidence. There is no contradiction in the evidence of PW.141­PI Gosavi and PW.136­PI Kale about the sequence of the events which had taken place. If the learned Advocate for the accused no.1 still had any doubt then nothing prevented him from seeking appropriate explanation from PW141­PI Gosavi. Therefore, the case of the prosecution cannot be doubted merely because PW.141­PI Gosavi has not given the minute details of the actions taken by him during the investigation conducted by him.

665. Now, let's turn back to the aspect of alleged tampering of the revolver, cartridges and empties. It may be noted that it has come in the evidence of PW.136­PI Kale that after the recovery of the revolver, cartridges and empties, they were immediately wrapped in separate polythene bags, sealed and labeled with the signatures of the panch witnesses and himself. Before the Court he identified the polythene bags in which the articles were packed and sealed. He has also identified his signature and the signatures of the panch witnesses on the labels. His evidence is trustworthy and reliable. There is nothing in the evidence of PW.136­PI Kale to show that he was personally interested in this case. He had no animus or grudge against the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. His evidence of this point is consistent with the evidence of panch PW.129­Balu Panchange and is corroborated by the panchanama (Exh.1272­A) on material points. The articles were forwarded to the FSL,Kalina for analysis on 05/07/2011 by PW.142­API Datir through PW.91­PN Bhaskar Patole. The evidence of PW.142­API 456

Datir on this point is duly corroborated by the evidence of PW.91­PC Bhaskar Patole and the forwarding letter (Exh.266). The CA report (Exh.236) also shows that the revolver, cartridges and empties were received in sealed condition and the seals were not only intact but also tallied with the specimen seals. The CA report (Exh.236) does not show that the revolver, cartridges and empties were tampered with in any manner. Therefore, it is clear that the doubt raised by the learned Advocate for the accused no.1 that there was tampering of the revolver, cartridges and the empties is without any basis.

666. The learned Advocate for the accused no.1 relied upon the judgment in the case of Tulshiram Bhanudas Kambale and others V. State of Maharashtra reported in 2000 CRI.L.J. 1566, in which it was observed that where the articles recovered were not immediately sealed, such recovery has no evidentiary value. The said judgment is not applicable to the present case as in the present case, through the evidence of PW.136­PI Kale and panch PW.129­Balu Panchange the prosecution has duly proved that the revolver, cartridges and empties were immediately packed, sealed and labeled at the spot itself.

667. At this stage, it may be noted that the reports of the FSL are directly admissible u/s.293 of Cr.P.C.,1973 because some sanctity is attached to those reports. In the present case, as stated earlier, all the reports of the FSL were admitted in evidence when they were received by the Court. At that time or at the time of recording of the evidence, the defence did not challenge or object to the reports. The contents of the report of FSL could have been rebutted by the defence by applying to the Court for examination of the ballistic expert. In fact, after the prosecution evidence was over, the learned Advocate for the accused no.1 had filed the 457 application (Exh.1546) for examining the ballistic expert. However, the said application was withdrawn later on in view of pursis (Exh.1557). No reason was assigned for the same. Perhaps the learned Advocate for the accused no.1 was aware that the report of the Ballistic Expert was correct. Thus, the available opportunity was not utilized.

668. The learned Advocate for the accused no.1 relied upon the judgment in the case of Vijay Singh (supra) to contend that the delay of 8 days in sending the revolver (Article­249), cartridges (Article­250 colly) and the empties (Article­269 colly) to the FSL,Kalina is fatal to the case of the prosecution and as such the recovery of the above articles is vitiated. This Court has gone through the above judgment. In the facts of the present case, the said judgment cannot come to the rescue of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. In the present case, the articles were forwarded to the FSL,Kalina for analysis on 05/07/2011 by PW.142­API Datir through PW.91­PN Bhaskar Patole. As stated earlier, the CA report (Exh.236) shows that the revolver, cartridges and empties were received by the FSL, Kalina in sealed condition and the seals were not only intact but also tallied with the specimen seals. The contents of the report of FSL could have been rebutted by the defence by applying to the Court for examination of the Ballistic expert. But as stated earlier, the available opportunity was not utilized. There is no positive evidence to suggest that there was any tampering of the revolver, cartridges and empties. Consequently, mere delay of a few days in sending the revolver, cartridges and empties for analysis is of no consequence.

669. It was also argued that the possibility of tampering with the revolver, cartridges and empties cannot be ruled because though the above articles were seized by PW.136­PI Kale who was attached to the 458

Crime Branch Unit no.6 at the relevant time, the CA report (Exh.236) shows that the articles were received from the Crime Branch Unit no.1 [bottom of page no.1 of CA report (Exh.236)]. The said argument has no basis. It needs to be noted that as on 26/06/2011, the investigation was being carried out by the Crime Branch Unit no.6. The original labels on the plastic packets in which the above articles were packed and sealed show the label of the Office of the Crime Branch Unit no.6 along with the signatures of the panch witnesses and PW.136­PI Kale. Thereafter, the investigation was transferred to the PW.142­API Datir of Crime Branch Unit no.1. It has come in his evidence that after he took over the investigation, he took the custody of all the articles which were recovered and seized till that time and on 05/07/2011 he forwarded the revolver, cartridges and empties to the FSL,Kalina in sealed condition through PW.91­PN Patole along with the forwarding letter (Exh.266). The contents of the forwarding letter (Exh.266) corroborates his oral evidence on this point. The perusal of the forwarding letter (Exh.266) shows that its outward number is tk-dz-1027¼1½@d{k&1@2011 and it is dated 11/07/2011. This is the same number which is seen at the bottom of the page no.1 of the CA report (Exh.236). Thus, it is clear that this is not a case of tampering. The CA report (Exh.236) merely reflects the outward number of the letter (Exh.266) and its date. The packing and label of the Crime Branch Unit no.1 was affixed over and above the original packing because had PW.136­PI Kale forwarded the above articles in the same packing to the FSL,Kalina then those articles might not have been accepted by the FSL,Kalina due to mis­match in the Unit number of the Office of the Crime Branch on the labels on the articles and the forwarding letter (Exh.266). In any case, there is nothing the evidence of PW.136­PI Kale to suggest that after he seized, packed and sealed the revolver, cartridges and empties he tried to open the packets. Similarly, there is nothing in the 459 evidence of PW.142­API Datir to suggest that after he received the custody of the above articles he tried to open the original packing of those articles. In fact, during cross­examination to a specific question put to him, he emphatically denied that he had opened the packet containing the revolver or that the articles were not kept in the muddemal room till they were sent to the FSL, Kalina.

670. The prosecution has also examined PW.91­PN Patole who carried the above articles to the FSL,Kalina on 05/07/2011. His evidence fully corroborates the evidence of PW.142­API Datir that the revolver, cartridges and the empties were forwarded to the FSL,Kalina in sealed condition through him along with the covering letter (Exh.266). His evidence was also not shaken in any manner in cross­examination. Therefore, there was no question of tampering with the above articles.

671. It was also argued that the sealing of the revolver, cartridges and empties is doubtful as it is not specifically mentioned in the panchanama (Exh.1272­A) that the articles were sealed with “wax”. It is no doubt true that in the panchanama it is only mentioned that the articles were sealed and it is not specifically mentioned that 'wax' seal was used for sealing. But that would not be fatal to the case of the prosecution as the fact that the articles were sealed is sufficient. In any case, there is no rule of law that the sealing must be wax seal. Even if it done so, still there is no requirement under the law that it should be specifically mentioned in the panchanama that the articles were sealed with 'wax seal'. A hyper­ technical approach cannot be adopted.

672. According to the learned Advocate for the accused no.1, the failure of the prosecution to produce the necessary station diary entry regarding 460 taking of the articles required for sealing and labeling purposes also makes the case of the prosecution suspicious. It may be noted that it has come in the evidence of PW.136­Kale that after the disclosure statement (Exh.1272) was recorded, they took the articles required for sealing and labeling with them and then himself, the panch witness, the accused no.1­ Rohee Tangappan Joseph @ Satish Kalya and the Police staff sat in a Government vehicle and moved ahead as per the instructions given by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. In several cases, the Hon'ble Supreme Court of India and the Hon'ble High Courts have observed that it is neither desirable nor feasible for the prosecution to produce the station diaries in all cases and it is always opened to the defence to move the Court for calling for such diaries if the defence wants to make use of the same. In the present case also, if the defence wanted to make use of any station diary entry then it could have called for the same. But that was not done.

673. The learned Advocate for the accused no.1 relied upon the judgment in the case of State of Maharashtra V. Prabhu Barku Gade reported in 1995 CRI.L.J. 1432 and Ashraf Hussain Shah V. State of Maharashtra reported in 1996 CRI.L.J. 3147, in which it was held that where there is no evidence to show that after recovery, the articles were kept in sealed condition till the time they were sent to the Chemical Analyst, such recovery has no value. The said judgment is not applicable to the present case. As stated earlier, the prosecution has duly proved through the evidence of PW.136­PI Kale and PW.142­API Datir that the revolver (Article­249), cartridges (Article­250 colly) and the empties (Article­269 colly) were in sealed condition till the receipt of the same by the FSL,Kalina. Further, the CA report (Exh.236) shows that the above articles were received by the FSL,Kalina in sealed condition and the seals 461 were intact. Thus, there was no possibility of tampering with the articles.

674. In so far as the doubt sought to be created about the recovery of the revolver, cartridges and empties on the ground that on the very next day of the recovery, these articles were shown to media in the press conference which was held by the Police is concerned, in this regard, it is necessary to have a look at the evidence of PW.149­CP Arup Patnaik. He was the Commissioner of Police, Mumbai and the Sanctioning Authority under the MCOC Act,1999. He was basically examined on behalf of the prosecution to prove the sanction order under the MCOC Act,1999. However, as he was one of the Officers who had addressed the media along with the Joint Commissioner of Police in the press conference which was held on 27/06/2011, the defence took full advantage and cross­ examined him thoroughly on the point showing of the revolver and cartridges to the media in the press conference. But the defence could not elicit anything in his cross­examination which can be said to be adverse to the case of the prosecution. If the evidence of PW.149­CP Arup Patnaik is seen then it will be clear that the defence was always shy to ask him important questions. He was not even asked whether before showing the firearms to the media the original plastic packing and seals were removed or not. In absence of any evidence, it cannot be presumed that for showing the revolver and cartridges to the media, the original packing and seals of the firearms were removed and after the press conference the articles were sealed afresh. It must be remembered that on 26/06/2011, the revolver, cartridges and the empties were placed in a plastic polythene bag and sealed. Those plastic polythene bags are before this Court. They are completely transparent. Therefore, one can see the contents of the polythene bags without opening the same and in absence of any positive evidence to the contrary it will have to be presumed that the revolver and 462 cartridges were shown to the media without opening the original packing and seals. As stated earlier, the CA report (Exh.236) also shows that the firearms were received in sealed condition by the FSL,Kalina and that the seals tallied with the specimen seals. Thus, there was no alteration in the original packing and the seals on the revolver, cartridges and the empties.

675. At this stage, it may be noted that the question whether the mere fact that the recovered revolver and cartridges shown to the media will make the recovery doubtful had arisen before the Hon'ble Supreme Court of India in the case of State of Maharashtra V. Bharat Chaganlal Raghani & ors. reported in AIR 2002 SC 409. In that case, the learned Trial Court had discarded the factum of recovery of weapons at the instance of the accused therein on the ground that the same were shown to the media. The Hon'ble Supreme Court of India while observing that the approach of the learned Trial Court was technical held that once recovery of the firearms was proved by the prosecution, the mere fact that the firearms were shown to the media later on in a press conference was no ground to doubt the recovery. For ready reference, the relevant observations of the Hon'ble Supreme Court of India are reproduced below:

“60. We are of the opinion that the trial court adopted a technical approach in appreciating the factum of recovery of weapons and wrongly held that, "the evidence relating to the seizure will have to be totally kept aside"...... The statement of A6 relating to the recovery of weapons from the house of A5 could not have been made a basis for holding that there existed contradiction which persuaded the court not to believe the recoveries as a piece of corroborative evidence. Much has been made out from the display of seized weapons at the Press Conference held by the police after the arrest of the accused. Such an information is based upon the press reports published in the newspapers. The Joint Commissioner of Police who held the press conference stated that if any good work is 463

done with a good detection relating to crime, occurrence of which had been earlier reported in the press or the accused of serious offence or the shooters in the case as may be arrested then to enhance the image of the police in the public, a wide publicity is usually given for which press conferences are held. He presided over the press conference on 3.7.1995 as he had got information from the DCP about the seizure of weapons. He stated that he directed those officers to produce one AK 56 assault rifle and smaller weapons which were to be displayed in the press conference. According to him such weapons were available with the Special Operation Squad Branch. According to him similar weapons like the weapons seized from the accused were displayed in the press conference. When a question was put to him as to whether there was any hitch in displaying the seized articles and showing the same to the press persons, he replied that normally there was no hitch and in that particular case because of the lack of time to the DCP he might not have been able to bring the seized weapons. The seized weapons were shown in the Office of CID Crime in the same building where the office of the Joint Commissioner of Police is also located. There was no cause or occasion for the court to disbelieve the testimony of the Joint Commissioner of Police. Holding that only seized weapons were shown to the press, the trial court committed a mistake and it has unnecessarily tried to make a mountain out of molehill on such a frivolous ground.”

676. In view of the above, it is clear that merely because the revolver, cartridges and empties were shown to the media in the press conference, it cannot be said that there was any kind of tampering with those articles.

677. It may also be stated here that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya had filed an application for discharge (Exh.149) on 19/06/2014. While that application was pending, the revolver, cartridges and empties were deposited in the Court in packed and sealed condition on 26/09/2014. The roznama dated 16/10/2014 shows that at the instance of the learned Advocate for the accused no.1 the packing of the revolver, cartridges and empties was opened and they were marked as 464

Articles for identification purposes. During the course of the arguments, the learned Advocate for the accused no.1 has very conveniently avoided to point this fact to the Court. At that time, all the above articles were opened in presence of the learned Advocate for the accused no.1. However, no grievance was raised by the learned Advocate for the accused no.1 at that time that the packing or the seals of those articles were no intact or broken. Had any such grievance been raised, the Court would have definitely noted the same for future reference. As stated earlier, the CA report (Exh.236) shows that the above articles were received by the FSL,Kalina in sealed condition and the seals were intact. Further, once the original seal and packing is opened by the FSL,Kalina, the articles cannot be packed and sealed again in the same manner. After the analysis the articles are returned to the concerned Authority in the packing of the FSL,Kalina. When such packets are opened in the Court and shown to any witness then he is bound to say that the condition of the wrappers or packets or labels is not the same as it was at the time of the seizure of the articles. Therefore, the defence cannot take advantage of this fact and claim that there was tampering with the revolver, cartridges and the empties.

678. It was then argued that as the name of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was not mentioned in the forwarding letter (Exh.266) which was regarding forwarding the revolver (Article­ 249), live cartridges (Article­250 colly.) and the empties (Article­269 colly) to the FSL,Kalina, it cannot be said that the above articles were recovered at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. The submission has no merit. There is no requirement of the law that in such forwarding letters the name of the accused at whose instance the articles are recovered is required to be mentioned. 465

679. It was next suggested that the recovery of the cartridges (Article­250 colly.) is doubtful as no serial number was given to them whereas the CA report (Article­236) shows that the cartridges were marked as articles. It may be noted that PW.136­PI Kale was not confronted with the CA report (Exh.236). No explanation was sought from him in that regard. Further, as stated earlier, the Ballistic Expert could have been examined on behalf of the accused no.1 for removal of all the doubts, if any. But that was not done. The prosecution has proved the recovery of the revolver, cartridges and empties at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and that the same was sent to the FSL,Kalina in sealed condition. During cross­examination of the witnesses no direct stand was taken that the cartridges which were recovered from the accused no.1­ Rohee Tangappan Joseph @ Satish Kalya were not the same cartridges which were forwarded to the FSL,Kalina for forensic analysis. Hence, the recovery of revolver, cartridges and empties cannot be doubted.

680. It was next argued that the CA report (Exh.236) is not reliable as the Ballistic Expert has not given the reasons for arriving at the conclusion that the lead (Article­215) which was found near the spot of the incident and the lead (Article­247) recovered from the body of J.Dey were fired from one and the same .32” caliber revolver (Article­249). In this regard, reliance was placed upon the judgments in the case of Gopal Singh Gorkha V. State of U.P. reported in 1991 CRI.L.J. 1235 and Haji Mohammad Ekramul Haq V. The State of West Bengal reported in AIR 1959 SC 488. The said argument has no merits. As stated earlier, the FSL reports are directly admissible u/s.293 of Cr.P.C.,1973 as some sanctity is attached to those reports. In the present case, the contents of the report of FSL could have been rebutted by the defence by applying to the Court for 466 examination of the Ballistic Expert. But that was not done. As stated earlier, though an application was filed by the learned Advocate for the accused no.1 for cross­examining the Ballistic Expert, it was withdrawn. Therefore, now it is not open for the defence to contend that no are reasons given in the CA report (Exh.236) for the findings arrived at by the Ballistic Expert. In so far as the judgment in the case of Gopal Singh Gorkha (supra) is concerned, it is not applicable to the facts of the present case. In that case, the concerned Ballistic Expert was examined in the Court on behalf of the prosecution and in Appeal the Hon'ble High Court found that the evidence of the said Ballistic Expert to be unsatisfactory. Such is not the case here. For the same reasons, the judgment in the case of Ramesh Chandra Agarwal (supra) will also not help the case of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya.

681. The learned Advocate for the accused no.1 also submitted that though witness before the Court has stated that the five empties (Article­ 269) which are before the Court had mark of hammer striking but in reality no such hammer striking mark was found on the empties. On the basis of the above, it was argued that the empties before the Court were different from the empties which were actually recovered. It may be noted that this point has been raised by the learned Advocate of the accused no.1 in the written notes of arguments filed by him. Though the perusal of the same shows that the learned Advocate for the accused no.1 has not specified which witness has made the above statement or which CA report he is relying for the above purpose, it appears that he was referring to the evidence of PW.136­PI Kale and the CA report (Exh.236). The perusal of the evidence of PW.136­PI Kale shows that he had made a statement that there was a mark of hammer striking on the empties. As per the CA report 467

(Exh.236) the characteristic features of firing pin impression were found on the empties and the same tallied among themselves and with two of the live cartridges which were test fired from the revolver (Article­249) which was seized at the instance of accused no.1­Rohee Tangappan Joseph @ Satish Kalya. Thus, there is no inconsistency between the oral evidence of PW.136­PI Kale and the contents of CA report (Exh.236). Just because the words "hammer striking" are not used in the CA report (Exh.236) and the meaning is expressed in some technical words by the Ballistic Expert it does not mean that the empties before the Court are different from the empties which were sent to the FSL, Kalina.

682. It was next argued that panch PW.129­Balu Panchange was a habitual panch witness and was always available to the Police. Therefore, the recovery of the articles at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya becomes doubtful. In this regard, reliance was placed upon the judgment in the case of Prem Chand V. Union of India reported in AIR 1981 SC 613.

683. It is no doubt true that panch PW.129­Balu Panchange has fairly admitted that he had acted as panch witness on earlier occasions also. But does that mean that he is a habitual panch witness?. The answer to this question is 'No'. It was not shown that he has been branded as such by any Court of law. It was also not shown that in the cases prior to this in which he had acted as panch witness his evidence was not believed by the Court on the ground that he was a stock/habitual panch. Every citizen of India must be presumed to be an independent person until it is proved that he was dependent on the Police or other officials for any purpose whatsoever or he has a poor moral fiber or bad antecedents and only because the Police in order to carry out official duties, have sought the help of any 468 other person he would not forfeit his independent character by giving help to Police action. The circumstance that a particular panch witness is a habitual panch witness would certainly weigh in the mind of the Court if it finds that the evidence of the Police witnesses is not free from doubt. But such is not the case here. There is nothing in the evidence of PW.136­PI Kale to create suspicion about his evidence. Further, there is nothing in the evidence of panch PW.129­Balu Panchange to suspect his integrity or that he was under the thumb of the Investigating Agency. There is nothing to show that he had any animus against the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. There is also nothing to show that he had any special affiliation with PW.136­PI Kale. Even if it is assumed that he was acquainted with the Police, the mere acquaintance with the Police by itself would not destroy a man's independent outlook. In so far as the judgment in the case of Prem Chand (supra) is concerned, it is not applicable to the facts of the present case as the observations made by the Hon'ble Supreme Court of India in the case were in a different context.

684. At this stage, it may be noted that in the case of Mahesh s/o. Janardhan Gonnade V. State of Maharashtra reported (2008) 13 SCC 271 the Hon'ble Supreme Court of India has held that just because a person has acted a panch witness in 5­6 cases for the Police it cannot be said that he is habitual panch witness. In the case of Narayan Maruti Waghmode & anr. V. State of Maharashtra & anr. reported in 2011 All.M.R.(Cri) 2263, the Hon'ble High Court while dealing with the evidence of a witness who had acted as a panch on 45 earlier occasions observed as under:

“15. The defence Counsel submitted that Jadhav (PW.3) is stock witness of police and so no reliance can be placed on his evidence. In view of the aforesaid material collected by the 469

police and the nature of evidence given by Jadhav (PW.3), it is not probable that Jadhav was not present on the spot. Nothing is brought on record to create probability that Jadhav did not accompany raiding party. It is admitted that he had acted as a panch witness for police in 45 cases but on the basis of this circumstance only, evidence of Jadhav cannot be discarded. His evidence is consistent with the aforesaid evidence and so we hold that Jadhav also needs to be believed. The aforesaid evidence and the material which is seized by police has ruled out possibility of implanting the material by police for falsely implicating accused No. 1.”

685. It was next argued that the failure of the prosecution to take the fingerprints from the revolver (Article­249) and compare he same with the fingerprints of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya is fatal to the case of the prosecution as in absence of the matching of the fingerprints the accused no.1­Rohee Tangappan Joseph @ Satish Kalya cannot be connected with the use of the revolver (Article­249). The said submission is also required to be rejected. It is not the mandate of law that in each and every case, the fingerprints should to be taken. That apart, the evidence of fingerprint expert is not a substantive piece of evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record. Therefore, merely because the fingerprints on the revolver (Article­249) were not taken for matching the same with the fingerprints of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya the recovery of the revolver (Article­249) at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya cannot be doubted especially when the evidence of panch PW.129­Balu Panchange and PW.136­PI Kale is trustworthy and reliable.

686. It may be noted that panch PW.129­Balu Panchange and PW.136­PI Kale have admitted, and rightly so, that they will not be able to identify 470 the revolver & cartridges recovered if mixed with similar such articles. No one can identify the articles recovered if they are mixed up with similar such articles. That apart, there is no rule of law that the seized articles should be mixed with several similar articles for enabling the witnesses to identify the relevant articles. The cross­examination of panch PW.129­Balu Panchange and PW.136­PI Kale does not show or even indicate that the articles recovered at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and articles shown to him in the Court were different. The description of the revolver (Article­249) mentioned in the panchanama (Exh.1277­A) tallies with the revolver (Article­249) which is before the Court.

687. The recovery of the revolver (Article­249) at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was also sought to be doubted on the ground that it has come in the evidence of panch PW.129­Balu Panchange that the Police had told him that the revolver was of Czech Company but the revolver (Article­249) was having the marking 'USA'. The said submission has no basis. The prosecution has duly proved the recovery of the revolver (Article­249) at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. Panch PW.129­Balu Panchange and PW.136­PI Kale have duly identified the revolver (Article­ 249) to be the same which was recovered at the instance of accused no.1­ Rohee Tangappan Joseph @ Satish Kalya. Panch PW.129­Balu Panchange was not asked when and where he was told that the revolver was Czech company. No suggestion was given to panch PW.129­Balu Panchange that two different revolvers were found. The same revolver was sent to the FSL,Kalina for analysis and after analysis, it was deposited in the Court. There is nothing to doubt that the revolver (Article­249) which is before the Court is the same revolver which was recovered at the instance of the 471 accused no.1­Rohee Tangappan Joseph @ Satish Kalya. Hence, the above objection is required to be rejected.

688. Let's assume for a moment that the revolver (Article­249) is not the same revolver which was used in the crime. Let's assume even a worse case that no revolver was recovered at all. Both the situations are not fatal to the case of the prosecution as it is well settled that mere non­recovery of the weapon of offence will not falsify the case of the prosecution when the other evidence is reliable and trustworthy. In the present case, as already held earlier, the confession made by the accused no.5­Arun Dake clearly shows that it was the accused no.1­Rohee Tangappan Joseph @ Satish Kalya who had fired five bullets on the person of J.Dey which resulted in his death.

689. At this stage, it may be stated that in cross­examination PW.136­PI Kale has stated that at the time of the seizure of the cartridges only the marking '.32 S & W LONG' was found on them and no other marking was found on the cartridges. But before the Court when he was shown the cartridges (Article­250) and empties (Article­269 colly.) more closely he stated that in addition to the marking '.32 S & W LONG' the marking 'S & B' were also seen at the cap of the cartridges and the empties. This Court is of the view that the above discrepancy brought on the record does not affect the case of the prosecution in any manner. The markings on the cartridges and the empties are so small that it is difficult to read all of them with naked eye. In any case, what is important is that PW.136­PI Rane and panch PW.129­Balu Panchange have identified the cartridges to be same which were recovered. It is not the case of the accused no.1 that the cartridges which were recovered were replaced with other cartridges. Hence, the objection raised on this point is required to be rejected. 472

690. Let's assume for a moment that there was some procedural illegality in conducting search and seizure. It is the settled law that the evidence collected thereby will not become inadmissible and the accused has show that he was seriously prejudiced because of the procedural illegality. In the present case, there is nothing to suggest that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was prejudiced in any manner due to the alleged procedural illegalities.

OBJECTIONS REGARDING THE RECOVERY OF THE QUALIS VEHICLE (ARTICLE­236) AT THE INSTANCE OF THE ACCUSED NO.2­ANIL WAGHMODE. 691. In order to prove the recovery of the Qualis vehicle bearing registration no.MH12­CD­7701 at the instance of the accused no.2­Anil Waghmode the prosecution has relied upon the evidence of panch PW.126­Pradip Shirodkar and PW.136­PI Kale.

692. The panch PW.126­Pradip Shirodkar deposed that on 26/06/2011 one Police Constable by name Mr Bade showed him his ID card and took him to the Office of the Crime branch Unit No.6. He deposed that when he went there he was introduced to PW.136­PI Kale and his team. He deposed that PW.136­PI Kale told him the reason for which he was called and on being asked, he agreed to act as a panch witness. He deposed that another panch by name Mr Sonu Kamble was also present there. He deposed that PW.136­PI Kale first made enquiry with both of them and then the accused no.2­Anil Waghmode was brought before them and his veil was removed. He identified the accused no.2­Anil Waghmode before the Court. He deposed that the accused no.2­Anil Waghmode disclosed to the Police that he would point out the vehicle bearing registration no. MH­ 12­CD­7701 which was concealed by him. He deposed that the disclosure 473 statement (Exh.1247) was accordingly recorded in his presence. He deposed that he along with the other panch witness and PW.136­PI Kale signed the same.

693. He deposed that after the above proceedings were completed, they sat in a Government vehicle and the accused no.2­Anil Waghmode led them to Suman Nagar, Chembur and from there he led them to the Sion­ Dharavi junction and from there to the Eastern Express Highway. He deposed that the accused no.2­Anil Waghmode then told the driver to take the vehicle to the Andheri overbridge. He deposed that the accused no.2­ Anil Waghmode then led them to the Amboli Fata through the service road. He deposed that thereafter, the accused no.2­Anil Waghmode told the driver to drive the vehicle in the direction of Jogeshwari. He deposed that while going towards Jogeshwari the accused no.2­Anil Waghmode instructed the driver to stop the vehicle near a petrol pump and accordingly, the vehicle was stopped there. He deposed that the accused no.2­Anil Waghmode then showed the place where he had parked the vehicle by pointing his finger. He deposed that as that place was at some distance from the petrol pump they went there by walk. He deposed that they saw a Qualis like vehicle bearing registration no.MH­12­CD­7701. He deposed that the accused no.2­Anil Waghmode then opened the rear door of that vehicle and produced the key of that vehicle from below the floor carpet of the vehicle. He deposed that the Police then opened the front door of that vehicle with the help of that key and examined the dashboard of the vehicle in their presence. He deposed that one registration book of the vehicle was found in the dashboard and the same was seized and sealed with the label containing signature of the panch witnesses. He deposed that the memorandum panchanama (Exh.1248) was prepared with regard to the above proceedings. 474

694. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that when the Police called him, he was near Jama Sweets, Sindhi camp area as he had gone there for purchasing sweets. He stated that on being asked by him, Constable Shri Bade told him that there was some work and that he would get the details after going to the Office of the Crime Branch. He stated that he could not say how many rooms were there in the Office of the Crime Branch Unit no.6. He admitted that the Police had asked him about his antecedents. He stated that he had told the Police that he had acted as panch witness earlier also. He denied that he also deposed in the Court whenever required. He stated that he had deposed in the other cases in the Sessions Court at Mulund and before this Court. He stated that the Officers were making enquiry with the accused no.2­Anil Waghmode in his presence. He denied that the accused no.2­ Anil Waghmode was handcuffed at that time.

695. Panch PW.126­Pradip Shirodkar admitted that the vehicle was present near the petrol pump. He admitted that the name of the petrol pump was not mentioned in the memorandum panchanama. He admitted that no panchanama was prepared regarding the exact spot at which the Qualis vehicle was standing. He stated that other vehicles were also standing there. He denied that all the doors of the vehicle were locked. He stated that one door of the vehicle was not locked. He denied that there were other Qualis vehicles also which were standing at that spot. He stated that the accused no.2­Anil Waghmode had pointed towards the Qualis vehicle when they were in the Government vehicle. He stated that after the proceedings of memorandum panchanama were completed he left the spot. He denied that the memorandum panchanama was already prepared and on the say of the Police he only signed it. He denied that he 475 did not go to the spot. He denied that he signed the memorandum panchanama in the Police Station. He denied that the accused no.2­Anil Waghmode neither made any disclosure statement nor he showed the spot to them. He denied that the accused no.2­Anil Waghmode was already shown to him before entering the Court room.

696. PW.136­PI Kale deposed that during the course of interrogation of the accused no.2­Anil Waghmode on 26/06/2011, the accused no.2­Anil Waghmode told him that he wanted to disclose something about the incident. He deposed that two panch witnesses namely PW.126­Pradeep Shirodkar and Sonu Ganpat Kamble were called for. He deposed that on making enquiry with them and on being asked, both of them agreed to act as panch witnesses. He deposed that both the panch witnesses were briefed about the case. He deposed that in the presence of the panch witnesses, the accused no.2­Anil Waghmode disclosed that he would show the place where the Qualis vehicle was parked. He deposed that the said statement (Exh.1247) was recorded in presence of the panch witnesses and their signatures were taken on the same. He deposed that he also signed the same.

697. He deposed that thereafter, they took the articles required for sealing & labeling and then himself, his team, both the panch witnesses and the accused no.2­Anil Waghmode sat in the Qualis vehicle of Police and went ahead as per the directions of the accused no.2­Anil Waghmode. He deposed that the accused no.2­Anil Waghmode led them to Suman Nagar, from there to Dharavi T junction, from there to the Western Express highway, after crossing the Andheri flyover he led them to the service road on the left side and near the railway crossing gate of Amboli. He deposed that they crossed the railway track and traveled on the 476

Andheri­Jogeshwari road. He deposed that after traveling some distance there was a petrol pump on the left side of the road and at a distance of about 50 ft from the petrol pump a Qualis vehicle was found. He deposed that they stopped their vehicle near the petrol pump and got down from it along with the accused no.2­Anil Waghmode. He deposed that the accused no.2­Anil Waghmode went towards that vehicle and opened the back side door on the right side of the vehicle and removed the key of the vehicle from below the carpet of the vehicle. He deposed that a duplicate registration book of the vehicle was found in the dashboard. He deposed that the details of the Qualis vehicle were noted down in the panchanama which was prepared. He deposed that the registration papers were seized, sealed and labeled with the signatures of the panch witnesses and himself. He deposed that a label was also affixed on the middle portion of the steering wheel of the vehicle. He deposed that the memorandum panchanama (Exh.1248) was prepared regarding the proceedings which had taken place at that spot. He deposed that both the panch witnesses and himself had signed the said panchanama.

698. In cross­examination on behalf of the accused no.2, he stated that the petrol pump was on the road going towards the Jogeshwari. He stated that he had an occasion to visit that area earlier on that day. He stated that the vehicle was stopped at a distance of about 1 km from the place where the vehicle was stopped when he had gone there earlier on that day. He stated that there were shops around the spot where the vehicle was parked. He stated that when the vehicle was taken in custody one of its door was in unlocked condition. He stated that people were moving on the road on which the vehicle was parked and there was traffic. He stated that there was a lane adjacent to the petrol pump nearby the place where the Qualis vehicle was parked. He stated that he did not record the 477 statement of any person who was present near the spot where the Qualis vehicle was parked. He denied that the Qualis vehicle was brought from the house of sister of accused no.2­Anil Waghmode at Sangli.

699. From the evidence of panch PW.126­Pradip Shirodkar and PW.136­ PI Kale it is clear that the disclosure statement made by the accused no.2­ Anil Waghmode was voluntary. There is nothing in the evidence of panch PW.126­Pardip Shirodkar and PW.136­PI Kale to suggest that the accused no.2­Anil Waghmode was either pressurized or coerced to make the disclosure statement. The accused no.2­Anil Waghmode made the disclosure statement (Exh.1247) on the same day on which he was arrested. It was not as if the statement was recorded after many days of his arrest so as to raise any suspicion. Also, the identity of the accused no.2­Anil Waghmode is duly established. The oral evidence of panch PW.126­Pradip Shirodkar is duly corroborated by the evidence of PW.136­ PI Kale and by the contents of the disclosure statement (Exh.1247). Similarly, with regard to the memorandum panchanama (Exh.1248) also, the evidence of PW.136­PI Kale is consistent, reliable and supports the evidence of panch PW.126­Pradip Shirodkar. The contents of the panchanama (Exh.1248) corroborate the oral evidence of panch PW.126­ Pradip Shirodkar and PW.136­PI Kale on material points. There is nothing to suggest that PW.136­PI Kale was aware about that place even before they were led to that place by the accused no.2­Anil Waghmode. These two witnesses were exhaustively cross­examined but nothing adverse could be elicited by the defence.

700. It may also be noted that the accused no.2­Anil Waghmode has admitted that the said vehicle belongs to him. But it is his stand that the Police had brought the said vehicle from the house of his sister at Sangli 478 and then it was shown to have been recovered at his instance. The defence taken by the accused no.2­Anil Waghomde is required to be rejected as there is no evidence to show that the Qualis vehicle was brought by the Police from Sangli. The sister of the accused no.2­Anil Waghmode could have been examined by the defence to prove this point. But that was not done. Also, it is not the case of the accused no.2­Anil Waghmode that he registered any complaint with the Police at Sangli regarding unauthorized removal of his vehicle from the house of his sister. Also, it is not digestible that while the accused no.2­Anil Waghmode was a resident of Mumbai he would keep his vehicle at Sangli which is a very far off place from Mumbai.

701. It was then argued that the recovery of the Qualis vehicle is doubtful on the ground that it was recovered from an open space and that one of its doors was found to be unlocked at the time of the recovery and it was quite possible that somebody else might be using it. The said submission has no basis. There is nothing in section 27 of the Evidence Act,1872 which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is an incorrect notion that when recovery of any incriminating article is made from a place which is open or accessible to others it would vitiate the evidence u/s.27 of the Evidence Act,1872. That apart, the accused no.2­Anil Waghmode has admitted that he is the owner of the Qualis vehicle. Therefore, the burden was on him to show who else other than him could have used that vehicle. But he failed discharge the burden.

702. It was then argued by the learned Advocate for the accused no.2 that though it has come in the evidence of PW.143­ACP Duraphe that 479 whenever any investigation is carried out the papers concerning the investigation are placed before the senior PI and the ACP within 24 hours, the important documents such as the various panchanama (Exh.493, Exh.504, Exh.1285, Exh.512, Exh.1272, Exh.1247, Exh.1204, Exh.1254, Exh.519, Exh.731, Exh.526, Exh.758, Exh.756, Exh.1315, Exh.554 and Exh.1201.) do not bear the signature and the stamp of the Senior Police Officer of having seen the same during the course of the investigation suggesting thereby that the above documents were created later on to suit the case of the prosecution. The said submission is without any basis. The learned Advocate for the accused no.2 could not point out any provision of the law which mandates that whenever any document is placed before an Officer for perusal, the said Officer must put his signature and seal as a mark of proof of having gone through the documents. That apart, the entries regarding the various documents including the panchanama which were drawn during the course of the investigation have been made in the case diary which is before the Court.

OBJECTIONS REGARDING THE RECOVERY OF THE MOTORCYCLE (ARTICLE­261) AND RAIN­COAT (ARTICLE­254) AT THE INSTANCE OF THE ACCUSED NO.4­NILESH SHEDGE. 703. To prove the recovery of the motorcycle bearing registration no. MH­01­AF­8843 (Article­261) and the rain­coat (Article­254) at the instance of the accused no.4­Nilesh Shedge, the prosecution has relied upon the evidence of the panch PW.131­Meer Usman Ali and PW.133­API Gopale.

704. It has come in the evidence of PW.131­Meer Usman Ali that on 26/06/2011, on being called by the Police he went to the Property Cell of the Crime Branch. He deposed that on being asked by PW.133­API Gopale, he agreed to act as a panch witness. He deposed that in his presence the 480 accused no.4­Nilesh Shedge stated that he could give the motorcycle. He deposed that the Police recorded the disclosure statement (Exh.1285) in his presence. He deposed that the accused no.4­Nilesh Shedge, himself and another person signed the statement. He deposed that thereafter all of them sat in a Police vehicle and went to the Janata Co­operative Society at the 90 feet road at Dharavi. He deposed that they went near a building by walk and the accused no.4­Nilesh Shedge showed them a black colored two wheeler vehicle there. He deposed that when the accused no.4­Nilesh Shedge was asked about the key of the vehicle he said that the key was with his friend namely Shri. More (PW.30). He deposed that when the name of Shri. More was called out, he came outside. He deposed that when the Police Officer asked PW.30­Dattatray More as to who was the owner of the vehicle, he replied that the vehicle belonged to his friend. He deposed that after PW.30­Dattatray More brought the key of the vehicle, PW.133­API Gopale opened the dicky of the vehicle. He deposed that the papers found in the dickey of the motorcycle were seized, sealed and labeled with their signatures.

705. He deposed that the accused no.4­Nilesh Shedge also said that he had kept a rain­coat in his house in a mori (washing place). He deposed that the accused no.4­Nilesh Shedge took them to his house where his wife was present. He deposed that the wife of the accused no.4­Nilesh Shedge brought a green (mehendi color) color rain­coat from inside which was then seized, sealed and labeled with their signatures. When the disclosure panchanama was shown to him he identified his signatures at two places as panch witness (Sr.no.1). He stated that his signatures were taken by PW.133­API Gopale at that time only. He then stated that his signatures were taken at the time of recording of statement of the accused no.4­Nilesh Shedge. He then stated that he was not aware about the 481 contents of the panchanama as they were written in Hindi and he could not read Hindi. To a Court question, he stated that he did not remember when his two signatures (Exh.1286) were taken. He identified the key (Article­252) and the rain­coat (Article­254). As PW.131­Meer Usman Ali did not support the prosecution in so far as the proceedings of the panchanama were concerned, he was cross­examined by the learned SPP. In cross­examination, he admitted that after the motorcycle and the rain­ coat were seized the panchanama in that regard was prepared in Marathi. He admitted that the panchanama was read over and explained to them in Hindi and after he said that it was correctly recorded, their signatures were taken. He admitted that his signatures (Exh.1286) was taken at that time. He admitted that the other panch also signed the panchanama at that time. He admitted that after the proceedings of seizure of motorcycle was complete they went to Kadarbhai chawl, Sion­Dharavi Road, Mumbai. He admitted that when they went there he saw that a rain­coat (Article­ 254) was hanging near mori on a hook.

706. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he did not personally know PW.133­API Gopale and that he had never seen him prior to the date of panchanama. He denied that prior to this case also he had acted as panch witness. He stated that after this case also he never acted as panch witness. He stated the Police did not ask him whether he had acted as a panch witness on earlier occasion and whether any case was registered against him. He stated that the Police did not ask him anything except his name, address and occupation. He stated that he had gone to the Crawford market for purchasing fruits and at that time the Police had met him. He stated that he could not read and write Marathi and Hindi but if the panchanama was read over to him in Marathi he might understand it except few words. He denied that he was not 482 aware in what language the contents of the disclosure statement were written. He denied that when he went to the Office of the Property Cell there were many accused present there in veil. He denied that he was made to understand the contents of the panchanama before deposing in the Court. He denied that they did not go to any place and that he signed the documents in the Police Station.

707. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that he was residing at Nagpada. He stated that now he did not remember the name of the Apartment where the motorcycle was parked. He stated that PW.30­Dattatray More was living in that building and that the key of the motorcycle was with him. He stated that the building was adjacent to the 90 feet road on the left side. He stated that he had met PW.133­API Gopale for the first time when he went to the Office of Crime Branch. He stated that the house from which the rain­coat was seized was near to the Apartment from which the motorcycle was seized. He stated that the length of the 90 feet road was approximately 1 km to 1.5 km and there were shops on both the sides of that road. He stated that the rain­ coat was recovered from the house number 116. He stated that PW.30­ Dattatray More brought the key from his house and gave it to PW.133­API Gopale. He stated that after giving the key PW.30­Dattatray More went away. He stated that there was only one room and a bathroom in the house from which the rain­coat was recovered. He stated that one was required to go to the bathroom through the room. He stated that he did not go inside that room and therefore he could not say what was the exact location of the bathroom.

708. In cross­examination on behalf of the accused nos.5 and 11, he stated that the other panch Shri. Ali was present in the Office of Crime 483

Branch before he had gone there. He stated that he came to know that the name of the other panch was Shri. Ali as some persons were talking about him and while he was giving his name and address. He stated that he did not know where Shri. Ali was residing. He stated that he was not given any information by the Police about the date of arrest of the accused no.4­ Nilesh Shedge.

709. It has come in the evidence of PW.133­API Gopale that on 26/06/2011 at about 03:45 pm, during interrogation after the arrest, the accused no.4­Nilesh Shedge stated that he wanted to disclose some information about the offence. He deposed that he then directed HC Madne to call for two panch witnesses and accordingly, at around 04:00 pm two panch witnesses namely PW.131­Meer Usman Ali and Abdul Latif Kadar Shaikh were called to his Office and in the presence of the panch witnesses the accused no.4­Nilesh Shedge disclosed that he could show the motorcycle, the rain­coat and the place where those articles were kept. He deposed that the disclosure statement (Exh.1285) of the accused no.4­ Nilesh Shedge was recorded in presence of the two panch witnesses.

710. PW.133­API Gopale then deposed that thereafter they took the articles required for sealing and labeling and all of them including the accused no.4­Nilesh Shedge and the panch witnesses sat in a Government vehicle and the accused no.4­Nilesh Shedge led them to the passage which was on the ground floor of the building Janta Nagar Co­operative Housing Society, Sion and showed them the Honda Unicorn motorcycle (Article­ 261) which was parked there. He deposed that when he asked the accused no.4­Nilesh Shedge about its keys, he said that the keys of the motorcycle was with PW.30­Dattatray More and thereafter the accused no.4­Nilesh Shedge called PW.30­Dattatray More. He deposed that after PW.30­ 484

Dattatray More came there he was briefed about the present case and then PW.30­Datatray More went to his house and brought the keys of the motorcycle (Article­261). He deposed that the papers (Article­260) of the motorcycle and the keys (Article­252) were seized. He deposed that from that place, the accused no.4­Nilesh Shedge led them to the room no.116, Kadarbhai Chawl at laxmibaug slums where his wife Ms.Sushma Nilesh Shedge was present. He deposed that thereafter all of them went inside and then the accused no.4­Nilesh Shedge produced the rain­coat (Article­ 254) which was hanging on a hook in the bathroom (mori). He deposed that he seized, packed, sealed and labeled the same after noting down its description in the panchanama (Exh.1315). He deposed that both the panch witnesses, himself and PW.30­Dattatray More signed the said panchanama in his presence.

711. From the evidence of PW.131­Meer Usman Ali and PW.133­API Gopale it is clear that the disclosure statement made by the accused no.4­ Nilesh Shedge was voluntary. There is nothing in the evidence of PW.131­ Meer Usman Ali and PW.133­API Gopale to suggest that the accused no.4­ Nilesh Shedge was either pressurized or coerced to make the disclosure statement. The accused no.4­Nilesh Shedge made the disclosure statement (Exh.1285) on the same day on which he was arrested. It was not as if the statement was recorded after many days of his arrest so as to raise any suspicion. The oral evidence of PW.131­Meer Usman Ali is duly corroborated by the evidence of PW.133­API Gopale and the contents of the disclosure statement (Exh.1285) on material points. He also identified the accused no.4­Nilesh Shedge in the Court.

712. The evidence of the panch PW.131­Meer Usman Ali, is also reliable in so far as the recovery of motorcycle (Article­261) at the instance of the 485 accused no.4­Nilesh Shedge is concerned. His evidence on this point is consistent with the evidence of PW.133­API Gopale and is corroborated by the contents of the panchanama (Exh.1315). However, he has faltered with regard to the recovery of the rain­coat at the instance of the accused no.4­Nilesh Shedge. He has firstly stated that the wife of the accused no.4­ Nilesh Shedge had brought the raincoat from inside the house. Thereafter, he stated that he did not go inside the room from which the accused no.4­ Nilesh Shedge brought the rain­coat. However, much weightage is not required to be given to the error committed by him. In the present case, it appears that though PW.131­Meer Usman Ali was a wholly truthful witness, he was overawed by the Court atmosphere since he was deposing before the Court for the first time and out of nervousness he mixed up facts and got confused. In any case, evidence of PW.133­API Gopale regarding the recovery of the rain­coat at the instance of the accused no.4­ Nilesh Shedge is cogent, trustworthy and reliable. The same can be accepted as there is nothing suspicious in his evidence. Having said this, even if the evidence regarding the recovery of the rain­coat at the instance of the accused no.4­Nilesh Shedge is discarded still it would not be fatal to the case of the prosecution.

713. In so far as the recovery of the motorcycle (Article­261) at the instance of the accused no.4­Nilesh Shedge is concerned, as stated earlier, the evidence of PW.131­Meer Usman Ali is consistent, reliable and is duly corroborated by the evidence of PW.133­API Gopale and the contents of the panchanama (Exh.1315) on material points. PW.131­Meer Usman Ali and PW.133­API Gopale were exhaustively cross­examined on this point but nothing adverse could be elicited by the defence. There is nothing to suggest that either PW.131­Meer Usman Ali or PW.133­API Gopale were aware about that place where the motorcycle (Article­261) was found 486 even before they were led to that place by the accused no.4­Nilesh Shedge.

714. The recovery of the motorcycle (Article­261) was sought to be doubted on the basis of the evidence of PW.30­Dattatray Mane who has deposed that the motorcycle was given by him to the Police on 26/06/2011. PW.30­Dattatray Mane was the owner of the motorcycle. He had purchased the said motorcycle from PW.55­Rajiv Bhaskar Mane in the year 2010 for Rs.35,000/­. He deposed that the accused no.4­Nilesh Shedge was his cousin brother. He deposed that the Police did not make any enquiry with him regarding the motorcycle. He deposed that on 26/06/2011, he had given the papers of the motorcycle to the Police. He deposed that he handed over the motorcycle along with its papers to the Police on being asked to do so.

715. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that he gave the motorcycle only because the Police asked him to do so. He admitted that he was called to Police Station for that purpose. He admitted that he handed over the motorcycle to the Police in the Police Station. He stated that the Police had taken his signature on a blank paper and had told him that they would call him after two days.

716. It may be noted that PW.30­Dattatray More was not declared hostile by the prosecution. But, that does not mean that his evidence must be blindly accepted. This Court can very well evaluate his evidence to find out whether he was speaking the truth. If the evidence of PW.30­Dattatray More is considered as a whole then it will be clear that he was not speaking the truth probably for the reason that the accused no.4­Nilesh Shedge was his cousin brother. Therefore, he was trying to help him. It has come in his evidence that he gave the motorcycle and its papers to the 487

Police on 26/06/2011. If that was so then in the normal course it was expected from him that he should have asked the Police as to why the motorcycle was required. After all, motorcycles are quite expensive and no one would hand it over to the Police or anybody else just like that. Not only that, the motorcycle (Article­261) is lying in the Court for the last seven years. The fact that PW.30­Dattatray More has still not come forward to claim the possession of the motorcycle also indicates that he was not the person who was actually using the motorcycle at the relevant time. Otherwise, nothing prevented him from approaching the Court for taking the custody of the motorcycle.

717. At this stage, it necessary to have a look at the stand taken by the accused no.4­Nilesh Shedge on this point in his statement recorded u/s.313(b) of Cr.P.C.,1973. He has stated as follows:

“Q.315: It has come in the evidence of PW.131­Meer Usman Ali that PW.30­Dattatraya More brought the key of the motorcycle. What do you have to say about it ?

Ans.: It is not correct. Dattatraya More was called to the crime branch on the next day and he was produced before me. He was asked whether he knew me. He identified me as his cousin brother and then he was told to go.”

718. From the answer given by the accused no.4­Nilesh Shedge to the question no.315, it is clear that he is also falsifying the evidence of PW.30­ Dattatray More. According to PW.30­Dattatray More, the Police had called him with the motorcycle on 26/06/2011 itself. But according to the accused no.4­Nilesh Shedge, PW.30­Dattatray More was called by the Police on the next day i.e. on 27/06/2011 and was produced before him. Thus, neither the evidence of PW.30­Dattatray More nor the stand taken by the accused no.4­Nilesh Shedge is reliable. 488

719. Let's assume for a moment that PW.30­Dattatray More voluntarily handed over the motorcycle to the Police. Then he must have been given some acknowledgment in writing by the concerned Officer about the receipt of the same by him. But PW.30­Dattatray More is silent about it. His conduct was unusual. That apart, no suggestion was given to panch PW.131­Meer Usman Ali that the motorcycle was not recovered but was brought to the Police Station by PW.30­Dattatray More on 26/06/2011. Therefore, his evidence cannot be relied upon in the light of the evidence of the PW.131­Meer Usman Ali and PW.133­API Gopale which is cogent, trustworthy and reliable and corroborated by the panchanama (Exh.1315).

720. According to the learned Advocate for the accused no.4, the recovery of the motorcycle (Article­261) at the instance of the accused no.4­Nilesh Shedge has no relevance as in the confession made by the accused no.5­Arun Dake, he has neither stated that on 11/06/2011 (date of the incident) the accused no.4­Nilesh Shedge had come on a motorcycle nor the accused no.5 has given registration number of the motorcycle which was used in the crime. The said submission has no basis. The confession made by the accused no.5­Arun Dake was his voluntary statement. PW.122­DCP Dr. Mahesh Patil recorded whatever the accused no.5­Arun Dake voluntarily told him. If, while making the confession the accused no.5­Arun Dake did not give the registration number of the motorcycle the use of which is attributed to the accused no.4­Nilesh Shedge, PW.122­DCP Dr. Mahesh Patil cannot be blamed. Further, from the confession made by the accused no.5­Arun Dake it appears that on the day of the incident the accused no.3­Abhijit Shinde had come on a motorcycle. When the accused persons saw J.Dey, the accused no.1­Rohee 489

Tangappan Joseph @ Satish Kalya sat on one motorcycle which was driven by the accused no.5­Arun Dake, the accused no.4­Nilesh Shedge sat on the motorcycle of the accused no.3­Abhijit Shinde as a pillion rider and the accused no.2­Anil Waghmode was the pillion rider on the motorcycle of the accused no.6­Mangesh Aagvane. The accused no.7­Sachin Gaikwad was entrusted with the duty of driving the Qualis vehicle. The prosecution has already proved the use of three motorcycles in the incident. The motorcycle (Article­261) was recovered at the instance of accused no.4­ Nilesh Shedge. Admittedly, he was not the owner of the said motorcycle. He has not explained as to how he came to know where the said motorcycle was parked after the incident. Some explanation was expected from him on this point but he chose to be in denial mode. Therefore, the learned Advocate for the accused no.4 cannot now contend that the motorcycle (Article­261) is not the same one motorcycle which was used in the crime.

OBJECTIONS REGARDING THE RECOVERY OF THE MOTORCYCLE (ARTICLE­240) AT THE INSTANCE OF THE ACCUSED NO.6­MANGESH AAGVANE. 721. To prove the recovery of the motorcycle bearing registration no. MH­02­AN­4648 (Article­240) at the instance of the accused no.6­ Mangesh Aagvane, the prosecution has relied upon the evidence of the panch PW.127­Bhagwansingh Thakur and PW.138­PI Bhosle.

722. Panch PW.127­Bhagwansingh Thakur deposed that on 26/06/2011, he was called to the Office of the Crime Branch near Crawford Market by a Constable at around 06:30 pm. He deposed that after he went there he was told that some panchanama was to be prepared. He deposed that one more person was also present there. He deposed that on being asked by the Police Officer both of them agreed to act as panch witnesses. He 490 deposed that the Officer asked him about his occupation and his address. He deposed that the Officer told him that one person was arrested and he was going to say something which he should hear and accordingly help in the proceedings of panchanama. He deposed that the accused no.6­ Mangesh Aagvane disclosed that he could show the place where the motorcycle (Article­240) was kept. He deposed that the Police recorded the disclosure statement (Exh.1254) in that regard. He deposed that both the panch witnesses and the Police Officer signed the same.

723. He deposed that thereafter, both the panch witnesses, the Police Officer, the staff and the accused no.6­Mangesh Aagvane went in a vehicle to the Amboli Fata at Andheri and that place the accused no.6­Mangesh Aagvane told the driver to stop the vehicle. He deposed that the directions were being shown by the accused no.6­Mangesh Aagvane. He deposed that after the vehicle was stopped, all of them got down from it and went by walk at some distance where there was a ladies hosiery shop by name M/s. Asha Creations. He deposed that the black colored Pulsar motorcycle (Article­240) was standing near the wall which was adjacent to the said shop. He deposed that the accused no.6­Mangesh Aagvane showed that motorcycle. He deposed that the accused no.6­Mangesh Aagvane said that the key of the motorcycle was kept with PW.28­Dattatray Chavan who was residing in the nearby chawl and that it could be collected from his house. He deposed that accordingly, one of the staff members brought the key and then the motorcycle was unlocked. He deposed that the cover of the seat was removed and some documents of the vehicle in the name of PW.28­Dattatraya Chavan were found which were then seized, sealed and labeled with the signatures of the panch witnesses. He deposed that the keys (Article­239 colly) and the motorcycle (Article­240) were also seized. He deposed that the panchanama (Exh.1254­A) was prepared in that 491 regard and their signatures were taken on it.

724. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he had gone to the Office of the Crime Branch at about 06:15 pm. He stated that he did not know how the motorcycle was taken to the Office of the Crime Branch. He denied that the chasis number and the engine number was noted down in the panchanama only on the basis of the entry in the registration papers. He stated that when he had gone to the Office of the Property Cell he had seen only one accused. He denied that he had acted as a panch witness in many cases prior to this case. He voluntarily stated that after the year 2011 he had acted as panch witness in one or two cases. He denied that whenever the Police required his help they used to telephone him.

725. In cross­examination on behalf of the accused nos.5 and 11, he stated that it took them about one hour to reach Amboli from the Office of the Crime Branch. He stated that they had gone to Amboli via Dadar, Mahim, Bandra, S.V. Road, Andheri. He stated that he did not remember from which route they went from V.T. to Mahim. He stated that he could not say whether they went to Dadar, from there to Sion, from Sion Hospital they took left, went to Dharavi and from there they went to Bandra. He stated that he could not give the details as he had forgotten due to lapse of time. He stated that they had left the Office of the Crime Branch, Crawford market at about 06:45 pm to 07:00 pm. He stated that it took approximately half an hour for them to reach Bandra. He stated that he did not know what was the approximate distance between the Office of the Crime Branch and Bandra. He stated that they had traveled from the road on the western side. He stated that he did not remember whether they first went to Bandra (E) and then to Bandra (W). He stated that he 492 did not know where Bandra (E) was located. He stated that he did not know what was the distance between Malad and Amboli. He stated that it took about half an hour for them to reach Amboli from Bandra on that day. He stated that they had gone on the S.V. Road but he was not sure about the name of the road where the vehicle was stopped. He stated that they were required to walk for about 5 minutes to reach M/s. Asha Creations after the vehicle was stopped. He stated that after the vehicle was stopped they went straight by walk on the same road. He stated that he did not know the name of the shop which was on the left side or on the right side of the shop M/s. Asha Creations. He stated that he had no occasion to meet the owner of shop M/s. Asha Creations. He stated that after the proceedings were completed he went to Worli to attend the marriage of his friend. He stated that after the panchanama was written in Marathi their signatures were taken and thereafter it was read out and explained to them in Hindi. He stated that the motorcycle was standing near the wall which was near the shop M/s.Asha Creations and then there were other shops. He denied that he had signed the panchanama in the Office of the Crime Branch at the request of the Police. He denied that on 26/06/2011 nobody produced the motorcycle nor it was seized by the Police.

726. It has come in the evidence of PW.138­PI Bhosle that on 26/06/2011, during interrogation after the arrest, the accused no.6­ Mangesh Aagvane stated that he wanted to disclose some information about the offence. He deposed that he then directed Havaldar Shri. Chougule to call for two panch witnesses and accordingly, at around 06:30 p.m. two panch witnesses namely PW.127­Bhagwansingh Thakur and another panch witness were present in his Office. He deposed that in the presence of the panch witnesses the accused no.6­Mangesh Aagvane 493 disclosed that he could produce the motorcycle from the place where it was kept. He deposed that the disclosure statement (Exh.1254) of the accused no.6­Mangesh Aagvane was recorded in presence of the two panch witnesses.

727. PW.138­PI Bhosle has then deposed that thereafter himself, the accused no.6­Mangesh Aagvane and the panch witnesses sat in a Government vehicle and the accused no.6­Mangesh Aagvane led them to Solanki Chawl where there was a shop by name M/s. Asha Creations and showed them the motorcycle (Article­240) which was parked near the wall of M/s. Asha Creations. He deposed that the said motorcycle was locked and when they asked the accused no.6­Mangesh Aagvane about its keys, he said that the keys of the motorcycle was with PW.28­Dattatray Chavan who was residing in the Ahir Chawl which was nearby. He deposed that the accused no.6­Mangesh Aagvane called for the keys from PW.28­ Dattatray Chavan and after the keys were brought the motorcycle was opened and checked, its engine number and chasis number was noted down. He deposed that the papers (Exh.186) of the motorcycle and the keys were packed separately, sealed and labeled with the signatures of the panch witnesses and himself. He deposed that the motorcycle (Article­ 240) was also seized and the panchanama (Exh.1254­A) was prepared in that regard. He deposed that both the panch witnesses and himself signed the same.

728. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that his role in the investigation was restricted to drawing the panchanama only. He denied that he had prepared the panchanama as per the directions of the Investigating Officer. He stated that he had made enquiry with the panch witnesses whether they had acted as panch earlier 494 also and that the panch no.2 had told him that he had acted as panch in 1­ 2 cases. He stated that the Office of the Property Cell had only one seal. He stated that he could not give the exact location where the vehicle was stopped at Amboli fatak. He stated that the distance traveled by them was not mentioned in the panchanama. But, he stated that the log book entry was made in that regard.

729. From the evidence of panch PW.127­Bhagwansingh Thakur and PW.138­PI Bhosle it is clear that the disclosure statement made by the accused no.6­Mangesh Aagvane was voluntary. There is nothing in the evidence of panch PW.127­Bhagwansingh Thakur and PW.138­PI Bhosle to suggest that the accused no.6­Mangesh Aagvane was either pressurized or coerced to make the disclosure statement. The accused no.6­Mangesh Aagvane made the disclosure statement (Exh.1254) on the same day on which he was arrested. It was not as if the statement was recorded after many days of his arrest so as to raise any suspicion. Also, the identity of the accused no.6­Mangesh Aagvane is duly established. The oral evidence of panch PW.127­Bhagwansingh Thakur is consistent with the evidence of PW.138­PI Bhosle and is duly corroborated by the contents of the disclosure statement (Exh.1254).

730. The evidence of PW.127­Bhagwansingh Thakur and PW.138­PI Bhosle regarding the recovery of the motorcycle at the instance of the accused no.6­Mangesh Aagvane is also consistent and is corroborated by the contents of the panchanama (Exh.1254­A) on material points. Both these witnesses were exhaustively cross­examined but nothing adverse could be elicited by the defence. There is nothing to suggest that PW.138­ PI Bhosle was aware about that place even before they were led to that place by the accused no.6­Mangesh Aagvane. 495

731. It was argued by the learned Advocate for the accused no.6 that the proceedings regarding the panchanama (Exh.1254­A) are suspicious because the log book entries about the distance traveled by them were not produced before the Court. Though the above objection was raised the learned Advocate for the accused no.6 with a lot of force, he could not point out any provision under the law which mandates that such act is required to be performed. In any case, it has come in the evidence of PW.138­PI Bhosle that the log book entry was made. It may be added here that there is always a presumption in favour of the correctness of official acts. The said presumption can be rebutted by the defence by adducing some evidence. The defence had an option to call for the log book for the purposes of satisfying itself. But that was not done.

732. At this stage, it may also be noted that PW.138­PI Bhosle has narrated about the route as shown by the accused no.6­Mangesh Aagvane which they followed which leaves no room for a doubt that they were led to that place by the accused no.6­Mangesh Aagvane. It is not the stand of the defence that the route as narrated by PW.138­PI Bhosle does not exist or that it does not lead to the place near the shop M/s. Asha creations at Solanki Chawl, Amboli fatak, Jogeshwari (W).

733. The other major ground on which recovery of the motorcycle (Article­240) was challenged is the evidence of PW.28­Dattatray Chavan who was the real owner of the said motorcycle. It was argued that PW.28­ Dattatray Chavan never gave his motorcycle to the accused no.6­Mangesh Aagvane and therefore, the alleged recovery of the motorcycle (Article­ 240) has no value. In this regard it will be appropriate to have a look at the evidence of PW.28­Dattatray Chavan. 496

734. PW.28­Dattatray Chavan has deposed that in the year 2011, the Police took away his motorcycle because the accused no.6­Mangesh Aagvane had taken it. He deposed that the Police took away his motorcycle on 25th (He did not remember the month.)

735. In cross­examination on behalf of the accused nos.1,6 and 7, he admitted that the Police had told him that the accused no.6­Mangesh Aagvane had taken the motorcycle and therefore they were taking it. He admitted that he did not give the keys of motorcycle and the motorcycle to the accused no.6­Mangesh Aagvane on his own. He stated that the Police had taken away the motorcycle on 25/06/2011. He stated that the Police had telephoned him on 25/06/2011. He stated that the Police had come to his area for taking the motorcycle. He admitted that on 25/06/2011, he realized that Police had caught the accused no.6­Mangesh Aagvane. He then stated that the Police had called him to the Office of the DCB CID Unit no.1 on 25/06/2011.

736. In cross­examination on behalf of the accused nos.3,4 and 12, he stated that the accused no.6­Mangesh Aagvane did not take the motorcycle from him in June 2011 and therefore, there was no question of him returning it. He then stated that he did not know anything about the motorcycle.

737. It may be noted that PW.28­Dattatray Chavan was not declared hostile by the prosecution. But, that does not mean that his evidence must be blindly accepted. This Court can very well evaluate his evidence to find out whether he was speaking the truth. If the evidence of PW.28­Dattatray Chavan is closely seen then it will be clear that he was knowing the 497 accused no.6­Mangesh Aagvane very well. Therefore, probably for this reason he was inclined to take his side. He has first stated that the Police had taken away his motorcycle on the ground that the accused no.6­ Mangesh Aagvane had take it for use. Now, if PW.28­Dattatray Chavan had not given the motorcycle to the accused no.6­Mangesh Aagvane then in the normal course it was expected from him that he should have protested the action of the Police in taking away his motorcycle. After all, motorcycles are quite expensive and no one would hand it over to the Police or anybody else just like that. Not only that, the motorcycle (Article­ 240) is lying in the Court for the last seven years. The fact that PW.28­ Dattatray Chavan has still not come forward to claim the possession of the motorcycle also indicates that he was not the person who was actually using the motorcycle at the relevant time. Otherwise, nothing prevented him from approaching the Court for taking the custody of the motorcycle (Article­240).

738. Let's assume for a moment that PW.28­Dattatray Chavan voluntarily handed over the motorcycle to the Police. Then he must have been given some acknowledgment in writing by the concerned Officer about the receipt of the same. But PW.28­Dattatray Chavan is silent about this. PW.28­Dattarray Chavan has then stated that the Police had telephoned him on 25/06/2011. Now, the question is how the Police came to know his telephone number. He has not stated anything about it. He then changed his version and said that the Police had come to his area. He then again changed his version and stated that the Police had called him to the Office of the DCB CID Unit no.1 on 25/06/2011. Now, if the Police was already in his area then why would the Police telephone and tell him to come to their office. He has then stated that the accused no.6­Mangesh Aagvane did not take the motorcycle from him in June 2011. This would 498 mean that till June 2011, the accused no.6­Mangesh Aagvane used to take his motorcycle. He then stated that he did not know anything about the motorcycle. He has also stated that he did not give the motorcycle and its keys 'on his own' to the accused no.6­Mangesh Aagvane. From the evidence of PW.28­Dattatray Chavan it is very much clear he was trying to help the accused no.6­Mangesh Aagvane probably for the reason that he was knowing him very well. Therefore, his evidence cannot be relied upon in the light of the evidence of PW.138­PI Bhosle and PW.127­ Bhagwansingh Thakur which is cogent, trustworthy and reliable and fully corroborated by the panchanama (Exh.1254­A).

OBJECTIONS REGARDING RECOVERY OF MOTORCYCLE (ARTICLE­ 233) AT THE INSTANCE OF THE ACCUSED NO.7­SACHIN GAIKWAD. 739. To prove the recovery of the motorcycle bearing registration no. MH­06­AH­4891 (Article­233) at the instance of the accused no.7­Sachin Gaikwad the prosecution has relied upon the evidence of the panch PW.123­Aslam Haji Mansuri and PW.134­PI Pasalwar.

740. Panch PW.123­Aslam Haji Mansuri did not support the case of the prosecution. Therefore, he was cross­examined by the learned SPP. In cross­examination, he stated that on 26/06/2011, the accused no.7­Sachin Gaikwad made the statement that he would point out the motorcycle and accordingly, the disclosure statement (Exh.1204) was recorded. He stated that he had signed the disclosure statement. He stated that thereafter the accused no.7­Sachin Gaikwad led the Police, the other panch and him to the place where the motorcycle was kept. He stated that the accused no.7­ Sachin Gaikwad took them to the lane of Chhagan Mitha Petrol Pump, Suman Nagar, Chembur and produced the motorcycle from a place in front of Buddha Vihar at Subhash Bose Nagar. He stated that the accused 499 no.7­Sachin Gaikwad called PW.31­Suresh Waghmare who was his cousin brother and took the key of the motorcycle from him and handed over the same to the Police. He stated that the Police packed, sealed and labeled the documents of the motorcycle with their signatures. He stated that himself and the other panch witness had signed the same. He stated that the panchanama (Exh.1205) was prepared in that regard. He stated that himself and the other panch witness also signed the same. He identified the motorcycle (Article­233), its key and the papers of the motorcycle.

741. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that on 26/06/2011, a Policeman had come to him between 03:30 pm to 04:00 pm but he did not remember the exact time. He then stated that the Policeman had come to him between 03:00 pm to 03:30 pm. He the stated that he had gone to the Office of the Property Cell at about 05:00 pm to 05:30 pm. He stated that they left the Office of the Property Cell by about 05:00 pm to 05:30 pm. He denied that because of that he could not identify the motorcycle. He denied that the motorcycle which was identified by him was not the same which was seized by the Police. He denied that PW.31­Suresh Waghmare had produced the motorcycle in the Police Station.

742. In cross­examination on behalf of the accused nos.9 and 10, he stated that he had studied upto 2nd standard. He stated that he could not read and write Marathi or English or Hindi. He stated that no case was registered against him. He stated that prior to this case he had acted as panch witness for the V.P. Road Police Station. He stated that he had also acted as panch witness for the J.J. Marg Police Station and for the Property Cell, Crime Branch. He stated that he had worked as a panch witness on 4 to 5 occasions. He stated that prior to 26/06/2011, he had 500 not visited the Office of the Property Cell, Crime Branch.

743. It has come in the evidence of PW.134­PI Pasalwar that on 26/06/2011, during interrogation after the arrest, the accused no.7­ Sachin Gaikwad expressed his willingness to disclose some information about the offence. He deposed that he then called for two panch witnesses namely PW.123­Aslam Haji Mansuri and Siddiqui Imran Niyaz Ahmed through PN Shri Ghosalkar and in the presence of the panch witnesses the accused no.7­Sachin Gaikwad disclosed that he was ready to show the place where the motorcycle was kept and also the motorcycle. He deposed that the disclosure statement (Exh.1204) of the accused no.7­Sachin Gaikwad was recorded in presence of the two panch witnesses.

744. PW.134­PI Pasalwar then deposed that thereafter himself, the accused no.7­Sachin Gaikwad and the panch witnesses sat in a Government vehicle and the accused no.7­Sachin Gaikwad led them to a lane in the Buddh Vihar at Subashchandra Nagar, Chembur and showed them the motorcycle (Article­233) which was parked there. He deposed that the accused no.7­Sachin Gaikwad told them that the motorcycle belonged to his cousin brother i.e. PW.31­Suresh Waghmare. He deposed that PW.31­Suresh Waghmare handed over the keys of the motorcycle to them. He deposed that thereafter the motorcycle was opened and checked and the papers (Article­267 colly) of the motorcycle were seized, packed, sealed and labeled with the signatures of the panch witnesses and himself. He deposed that the two keys (Article­230) of the motorcycle were also seized. He deposed that the panchanama (Exh.1205) was prepared in that regard. He deposed that both the panch witnesses and himself signed the same. 501

745. The perusal of the evidence of PW.134­PI Pasalwar will show that there is nothing to suggest that the accused no.7­Sachin Gaikwad was either pressurized or coerced to make the disclosure statement. The accused no.7­Sachin Gaikwad made the disclosure statement (Exh.1204) on the same day on which he was arrested. It was not as if the statement was recorded after many days of his arrest so as to raise any suspicion. His evidence on this point is corroborated by the contents of the disclosure statement (Exh.1204).

746. As stated earlier, PW.123­Aslam Haji Mansuri did not support the case of the prosecution in so far as the recovery of the motorcycle at the instance of the accused no.7­Sachin Gaikwad was concerned and therefore, he was required to cross­examined by the learned SPP. The effect of recovery not substantiated by panch witness was considered by the Hon'ble Supreme Court of India in several matters. In the case of Mohd. Aslam V. State of Maharashtra reported in (2001) 9 SCC 362, the Hon'ble Supreme Court of India has held that the evidence of an Police Officer effecting recovery u/s.27 of the Evidence Act, 1872 cannot be stated to be vitiated on the ground that the panch witness with regard to the said recovery turns hostile. The position of law on this aspect was summarized by the Hon'ble Supreme Court of India in the case of Rameshbhai Mohanbhai Koli V. State of Gujarat reported in 2010 ALL MR (Cri) 3868 (SC). The judgment in the case of Mohd. Aslam (supra) was also considered in that case. Paragraphs nos.23 to 25 of the said judgment are reproduced below for ready reference:

"23. An argument was advanced about reliance based on the evidence of investigating Officer. This Court in State of U.P. vs. Krishna Gopal and another, (1988) 4 SCC 302 has held that Courts of law have to judge the evidence before them by 502

applying the well recognized test of basic human probabilities. Prima facie, public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case [Vide State of Kerala vs. M.M. Mathew and anr., (1978) 4 SCC 65]

24. In Modan Singh vs.State of Rajasthan, (1978) 4 SCC 435, it was observed that where the evidence of the investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam vs. State of Maharashtra, (2001) 9 SCC 362. In Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657, it was further held that even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.

25. This Court has held in large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if he same is based on the testimony of the Investigating Officer alone. In the instance case, it is not the case of defence that the testimony of Investigating Officer suffer from any infirmity or doubt. [Vide Modan Singh's case (supra) Krishna Gopal's case (supra) and Anter Singh's case (supra)."

747. In view of the above, it is clear that the evidence as to recovery need not be rejected on the ground that panch witnesses did not support the prosecution version. Even evidence of the Investigating Officer can be considered for proving recovery as official acts are regularly done is a wise presumption of law recognized by the legislature as seen from the provisions of section 114 of the Evidence Act,1872.

748. In the light of the above, if the evidence of PW.134­PI Pasalwar is considered, then it can be said that it is consistent, reliable and is also duly 503 corroborated by the contents of the panchanama (Exh.1205) on material points. There is nothing to suggest that PW.134­PI Pasalwar was aware about that place even before he as led to that place by the accused no.7­ Sachin Gaikwad. There is also nothing to suggest that he had any grudge against the accused no.7­Sachin Gaikwad so as to falsely implicate him in this case though he was thoroughly cross­examined.

749. It was argued by the learned Advocate for the accused no.7 that proceedings regarding the panchanama (Exh.1205) are suspicious because according to PW.134­PI Pasalwar he was only a signatory to the said panchanama meaning thereby that he was not the Officer who prepared the panchanama. It is not necessary that the Police Officer should himself note down the contents of the panchanama as more often than not they are provided with the services of a writer and in other situations a Police Constable may also note down the contents of the panchanama under the supervision of the concerned Police Officer. In the present case, from the evidence of PW.134­PI Pasalwar it appears that the contents of the panchanama were noted down by PN Shri Ghosalkar under his dictation and then PW.134­PI Pasalwar signed the same. There is no illegality in the same. In any case, what is important are the contents of the panchanama the genuineness of which is not in doubt.

750. The other major ground on which recovery of the motorcycle (Article­233) was challenged is the evidence of PW.31­Suresh Waghmare who was a close relative of the accused no.7­Sachin Gaikwad. He claimed to be the real owner of the motorcycle (Article­233). As per the prosecution, as the accused no.7­Sachin Gaikwad was unable to purchase the motorcycle in his name for the want of certain papers, he purchased the same in the name of PW.31­Suresh Waghmare and he was the person 504 who was actually using the motorcycle (Article­233). As per the prosecution, even at the time of the incident, it was the accused no.7­ Sachin Gaikwad who was using the said motorcycle. But PW.31­Sachin Waghmare he did not support the case of the prosecution. Therefore, he was cross­examined on behalf of the prosecution and in paragraph no.2 of the cross­examination conducted by the learned SPP, he made the following statement:

“While giving statement I had told the police that as Sachin Gaikwad was not getting loan from the bank, he decided to purchase the motorcycle in my name. The motorcycle was purchased by me.”

751. In the cross­examination on behalf of the accused nos.1,6 and 7, he stated that on 11/06/2011, the motorcycle (Article­233) was with him and between 02:30 pm to 03:30 pm., (the time at which the incident took place) he had parked the motorcycle near Mankhurd Railway Station and he had gone to the Hospital along with his wife. He stated that the Police made enquiry with him on 24/06/2011 and at that time he came to know that the accused no.7­Sachin Gaikwad was arrested. He then made certain other statements in favour of the accused no.7­Sachin Gaikwad.

752. From the evidence of PW.31­Suresh Waghmare it is quite clear that he was trying to help the accused no.7­Sachin Gaikwad who was his very close relative. But while do so, he stated the truth by admitting the fact that as the accused no.7­Sachin Gaikwad was not getting loan from the Bank, he decided to purchase the motorcycle in his name and accordingly he purchased the motorcycle (Article­233). Thus, it is quite clear that though the motorcycle was purchased in the name of PW.31­Suresh Waghmare, it was the accused no.7­Sachin Gaikwad who was using the 505 same. It may also be added here that according to PW.31­Suresh Waghmare the cost of the motorcycle (Article­233) was Rs.86,000/­ which is quite a big amount. Considering the cost of the motorcycle, and assuming for a moment that he was only using the said motorcycle the natural conduct of PW.31­Suresh Waghmare would have been to apply to the Court for taking back the custody of the motorcycle. But he did not do so. The motorcycle (Article­233) is lying in the Court since the last seven years. This conduct of PW.31­Suresh Waghmare indicates that he was not actually using the said motorcycle at the relevant time. Therefore, it will have to be said that the recovery of the motorcycle (Article­233) at the instance of the accused no.7­Sachin Gaikwad is not doubtful in any manner.

753. According to the learned Advocate for the accused no.7, the recovery of the motorcycles at the instance of the accused no.4­Nilesh Shedge vide panchanama (Exh.1315), the accused no.6­Mangesh Aagvane vide panchanama (Exh.1254­A) and the accused no.7­Sachin Gaikwad vide panchanama (Exh.1205) is doubtful as though the same were prepared at different places but at about the same time. It was submitted that as the Office of the Property Cell was having only one Official seal, the one and the same seal could not have been used by three different Officers of the Property Cell at different places for sealing the articles which were recovered at the instance of the above named accused persons. It may be noted that the timing of the proceedings of the panchanama (Exh.1351) with regard to the motorcycle seized at the instance of accused no.4­ Nilesh Shedge is between 05:15 pm to 06:00 pm and it was drawn by PW.133­API Gopale. The timing of the proceedings of the panchanama (Exh.1254­A) with regard to the motorcycle seized at the instance of accused no.6­Mangesh Aagvane is between 07:00 pm to 08:30 pm and it 506 was drawn by PW.138­PI Bhosle. The timing of the proceedings of the panchanama (Exh.1205) with regard to the motorcycle seized at the instance of accused no.7­Sachin Gaikwad is between 07:05 pm to 07:45 pm and it was drawn by PW.134­PI Pasalwar. The papers of the motorcycle which was recovered at the instance of accused no.4­Nilesh Shedge were kept in the labeled envelope (Exh.1287) and were sealed. The papers of the motorcycle which was recovered at the instance of accused no.6­Mangesh Aagvane were kept in the labeled envelope (Exh.1256) and were sealed. Similarly, papers of the motorcycle which was recovered at the instance of accused no.7­Sachin Gaikwad were kept in the labeled envelope (Exh.1206) and were sealed. In so far as the argument which was made, it may be noted that no explanation was sought either from PW.133­API Gopale or PW.137­PI Pasalwar or PW.138­ PI Bhosle as to how they got the possession of the official seal at that time though they were questioned on the other aspects. Therefore, no adverse inference can be drawn automatically. That apart, from the evidence of PW.133­API Gopale, PW.137­PI Pasalwar and PW.138­PI Bhosle though it can be seen after the documents were seized they were placed in a packet and then sealed they have nowhere deposed that the packet in which the documents were kept was sealed on the spot. Therefore, it is quite possible that the packets containing the documents were brought to their Office and after perusing the same, the packets were sealed. Further, there is no evidence to show that the registration papers of the three motorcycles which were recovered at the instance of the three accused persons were tampered with. Also, the ownership of the three motorcycles is not disputed by anybody. As such, the objection raised by the learned Advocate for the accused nos.6 and 7 has no basis. 507

OBJECTIONS REGARDING THE RECOVERY OF THE MOBILE PHONE (ARTICLE­228) AND GLOBAL ROAMING SIM CARD (ARTICLE­229) AT THE INSTANCE OF THE ACCUSED NO.10­PAULSON PALITARA. 754. The learned Advocate for the accused no.10 has raised several objections with regard to the recovery of the mobile phone (Article­228) and Global Roaming SIM card (Article­229) at the instance of accused no.10­Paulson Palitara. However, as this Court has already held above that no offence is made out against the accused no.10­Paulson Palitara as there is no substantive evidence against him to show his involvement in the murder of J.Dey, it is not necessary to deal with the objections raised by the learned Advocate for the accused no.10 regarding the recovery of the mobile phone (Article­228) and the Global Roaming SIM card (Article­ 229) as in absence of any substantive evidence against the accused no.10­ Paulson Palitara the recovery of these articles is of no use to the prosecution.

OBJECTIONS REGARDING THE INTERCEPTION OF PHONE CALL MADE BY THE ACCUSED NO.12­CHHOTA RAJAN TO PW.90­MANOJ SHIVDASANI. 755. According to the learned Advocate for the accused no.12 the CD (Exh.777) in which the intercepted conversation between the accused no.12­Chhota Rajan and PW.90­Manoj Shivdasani was copied from the server of 'X­Project' was prepared after unexplained delay of about 5 months after the phone call was intercepted which makes the case of the prosecution suspicious. In this regard, it is necessary to have a look at the evidence of PW.74­API Sawant. The perusal of his evidence will show that the intercepted conversation was directly recorded in the server. He has further deposed that for logging on to the server he was required to use his user name and password. Thus, no unauthorized person could have access to the server. In the cross­examination, it was brought on record 508 that the calls were generally correctly recorded. It was further brought on record that the calls which were recorded in the server cannot be manipulated in any manner. Therefore, from the evidence of PW.74­API Sawant, it is very much clear that the record of the phone call in question could not be tampered with. That apart, no explanation was sought from PW.74­API Sawant as to why he did not immediately prepare the CD (Exh.777) after the conversation was intercepted. Therefore, the fact that the CD (Exh.777) containing the record of the conversation between the accused no.12­Chhota Rajan and PW.90­Manoj Shivdasani after about 5 months is inconsequential.

OBJECTIONS REGARDING THE CDRS AND MOBILE NUMBERS. 756. The evidence led by the prosecution with regard to validity of the various CDRs relied upon by it is generally and specifically was challenged by the defence on various grounds. They are discussed below.

757. It was firstly submitted that the various CDRs relied upon by the prosecution have no value as the prosecution has not verified the complicity of the persons who were in contact with the various mobile number, the use of which is attributed to the accused persons. The said submission has no basis. Through the evidence of various Investigating Officers, the prosecution has proved that during the course of investigation, the complicity of the accused persons who are before this Court and the other accused who are wanted in this case was established. Under such circumstances, the Investigating Officers very rightly probed the role of the accused persons in this case and it was not necessary for them to interrogate each and every person who had received any phone call from the mobile numbers, the use of which is attributed to the various accused persons. 509

758. It was argued that though the prosecution has relied upon various CDRs in support of its case, some of the requisitions (u/s.91 of Cr.P.C.,1973) issued by the Investigating Officers to the Nodal Officers of the various service providers were not proved and as such the CDRs cannot be used by the prosecution in support of its case. The said submission has no merit. It needs to be noted that most of the requisitions which were issued to the various Nodal Officers were filed along with the charge­sheet. Some of them were marked for identification purposes during the course of the evidence of the Nodal Officers. The Investigating Officers who had issued the requisitions were also examined. They deposed about sending the requisitions to the Nodal Officers. But in some cases, the learned SPP failed to show the requisitions to the concerned Investigating Officer. As a result of which those requisitions could not be exhibited. That was an error on the part of the learned SPP. But that does not mean that the evidence in the form of the CDRs should be discarded on that ground alone especially when the replies issued by the various Nodal Officers furnishing the necessary details of the mobile numbers is duly proved through them.

759. It was next argued that in the replies issued by the various Nodal Officers to the requisitions issued to them, the period/ duration of which the CDRs were provided and the Crime number in connection with which the CDRs were furnished is not mentioned and as such the CDRs are not reliable. It needs to be noted that the replies issued by the Nodal Officers to the requisitions issued to them were accompanied with the necessary subscriber details and the CDRs. The perusal of any of the CDR will show that the period for which the details were provided is mentioned at the top of the CDR. That apart, one wonders how mere non­mentioning of the 510 period for which the CDRs were being provided affects the authenticity of the same. In so far as the non­mentioning of the Crime number in connection with which the CDRs were being provided, it is not at all necessary to mention the same. The information about the CDRs is always confidential. The Nodal Officer is not supposed to know in connection with which crime the information is being called for. If such information is divulged, there is always a possibility of leaking of such information thereby adversely affecting the investigation.

760. It was next argued that the Nodal Officers retrieved the CDRs in '.csv' format from their server and there is every possibility of tampering with the CDRs to suit the case of the prosecution. The said submission has no basis. Almost each and every Nodal Officer who has been examined in this case has specifically stated that once the necessary information is fed in the server, the CDRs were automatically generated without any human intervention. They have specifically deposed that the entries in the CDRs cannot be edited. During the course of the evidence of the Nodal Officers, the defence could not point out a single entry in the various CDRs (In all there are about 56 CDRs on the record) from which it could be gathered that the CDR can be manipulated in any manner. That apart, the Nodal Officers who were examined on behalf of the prosecution were independent witnesses who had no interest in this case. They had no motive to manipulate any record of their Company.

761. It was then argued that the fact that the fields in the CDR containing information can be added or deleted itself shows that the CDRs can be manipulated. It was also argued that the fact that some of the Nodal Officers had also furnished the information (CDRs) on e­mail to the Investigating Officer also does not rule out the possibility of tampering 511 with the CDRs. The above submissions have no basis as they are based on conjectures and surmises. It must be stated that though the defence is entitled to argue that the case of the prosecution is doubtful, the doubts should not be fanciful as is seen in the present case. Doubt should be created on the basis of the material before the Court and not on the basis of what is in the mind of the cross­examiner. The perusal of the evidence of the various Nodal Officers will show that the defence was always shy to ask any direct question about the probability of manipulation of the data in the CDRs. In so far as the above objections are concerned none of the Nodal Officers was asked as to why they were sending the CDRs to the Investigating Officer on e­mail. Similarly, as stated earlier, almost all the Nodal Officers have deposed that the data in the CDRs cannot be edited. Therefore, there is no question of any manipulation.

762. In so far as the evidence of PW.110­Nodal Officer Reliance is concerned, the same was sought to be doubted by suggesting that he had furnished the necessary details to the Investigating Officer even before the requisition in that regard was issued to him. The said submission is based on incorrect reading of the evidence of PW.110­Nodal Officer Reliance. In paragraph no.9 of the deposition, PW.110­Nodal Officer Reliance has clearly stated that he had furnished the information on e­mail prior to receiving the requisition from PW.142­API Datir as a requisition was first received by him on e­mail of Commissioner's Office and accordingly the details were furnished. No fault can be found with the conduct of PW.110­ Nodal Officer Reliance.

763. In so far as the evidence of PW.113­Nodal Officer Aircel is concerned, it was argued that though the guidelines (Exh.1003) issued by the Department of Telecommunications provide that the requisite 512 information in the form of the CDRs should be furnished in the format as prescribed in the guidelines (Exh.1003) i.e. information should be furnished in 13 mandatory fields, PW.113­Nodal Officer Aircel has on his own given certain extra information which can be only done by editing the data. On the basis of the above, it was argued that the CDRs furnished by PW.113­Nodal Officer Aircel are prone to tampering. The said submission has no basis. PW.113­Nodal Officer Aircel was an independent witness. He had no reason to furnish any false record to the Investigating Officer. Also, the guidelines (Exh.1003) nowhere mandate that the required information should be furnished in 13 mandatory fields only. It only means that whenever such information is furnished it should always give the details with regard to the 13 fields which are mentioned in the guidelines though the other extra information may or may not be furnished by the service provider. The perusal of the CDRs (for eg. Exh.991) will show that it contains all the necessary information which the service provider is required to furnish as per the guidelines (Exh.1003). Just because PW.113­Nodal Officer Aircel has chosen to furnish some extra information does not by any stretch of imagination mean that the data is manipulated. The value of the CDRs could have been questioned had PW.113­Nodal Officer Aircel failed to furnish the information which was mandatory as per the guidelines (Exh.1003). Such is not the case either with Aircel or any other service provider. Similarly, the fact that PW.113­Nodal Officer Aircel has deposed that his Company is required to furnish the details of cell IDs to all security agencies every month is also no reason to suspect the case of the prosecution as it is a standard procedure followed by all service providers and the same is done in view of the guidelines (Exh.1103) issued by the Department of Telecommunications. The defence cannot object to the same. 513

764. It was then argued that the possibility of tampering with the list containing the physical addresses of the cell IDs which was filed on record by the Nodal Officers of the respective service providers cannot be ruled out as the same are manually prepared. Again, this objection appears to have been taken just for the sake of it. The list containing the physical addresses of the cell IDs is always prepared manually. During the course of the trial, when these lists were produced by the Nodal Officers of the respective service providers, a copy of the same was supplied to each of the defence Advocates. If they had any genuine doubt about the correctness of the physical addresses of the cell IDs mentioned in the list, they could have very well got the same verified. But that was not done. Now, the defence cannot turn around and cast a doubt about the genuineness of the physical addresses mentioned in the list.

765. In so far as the CDR (Exh.909) of the mobile no.8655292230 which is proved by the prosecution through the evidence of PW.108­Nodal Officer TATA is concerned, it was argued that the same cannot be used as the evidence of PW.108­Nodal Officer TATA shows that as per the system of their company though the details of all the calls were recorded and noted in a switch and were extracted as and when required, he has also admitted that the Senior Manager (Switch) used to operate the switch and he had nothing to do with the operation of the switch. The above submission has no basis. PW.108­Nodal Officer TATA has specifically deposed that as a Nodal Officer it was his duty to furnish the information about the call details of the required mobile numbers to the Law Enforcement Agencies. That part of his evidence was not shattered in his cross­examination. As per section 65B(4) of the Evidence Act,1872 a certificate can be issued by any person occupying a responsible position in relation to the operation of the relevant device or the management of the 514 relevant activities. PW.108­Nodal Officer TATA was a person holding responsible position in relation to the master computer though he may not have been the only person holding the responsible position in relation to the master computer. Hence, he had the authority to issue the certificate (Exh.908). Therefore, the CDR (Exh.909) can very well be read in evidence.

766. It was then argued that some of the Nodal Officer have produced the certificate u/s.65B of the Evidence Act,1872 during the course of recording their evidence in this case in the year 2017 though the CDRs were furnished by the Nodal Officers to the Investigating Officers in the year 2011 itself. In this regard, it needs to be stated that the present position of the law is that the certificate u/s.65B of the Evidence Act,1872 can always be produced at a later stage of the trial.

767. At this stage, it may be stated that it has come in the evidence of PW.113­Nodal Officer Aircel that the format of the certificate u/s.65B of the Evidence Act,1872 is fed and stored in their computer and whenever required they take a printout of the same after filling in the necessary details. There is nothing wrong in the above statement in as much as it is not the stand of the defence that what is fed is not correct or that the certificates are signed by PW.113­Nodal Officer Aircel without first verifying whether the contents of the certificate are in consonance with the requirements of the law or not. It is also not the stand of the defence that the certificates were issued without verifying the conditions which are mentioned in section 65B(2) of the Evidence Act,1872. Therefore, the validity of the certificates u/s.65B of the Evidence Act, 1872 cannot be doubted on this ground. 515

768. In so far as the evidence of PW.113­Nodal Officer Aircel is concerned there is one minor discrepancy in the sense that vide requisition (Exh.1072) dated 30/06/2011, PW.142­API Datir had directed PW.113­ Nodal Officer Aircel to furnish the subscriber details and the CDRs of the mobile numbers used by the accused nos.2 and 7. PW.113­Nodal Officer Aircel had furnished the necessary details to PW.142­API Datir vide reply (Exh.990) dated 24/08/2011. But inadvertently the date '27th July 2011” was typed in the reference of the reply instead of the date “30/06/2011” though the outward number and the other contents were correct. According to the learned Advocate for the accused nos.1,6 and 7 the discrepancy was major and fatal to the case of the prosecution. It may be noted that it has come in the evidence of PW.113­Nodal Officer Aircel that they used to receive many requisitions every day. He has explained that there may be a typographical error in writing the date which cannot be ruled out considering the fact that they used to receive numerous requisitions every day and while drafting reply such mistakes are not unusual. There is no need to read much into this discrepancy especially because the perusal of the reply (Exh.990) will show that it was issued in response to the requisition (Exh.1072) only.

769. The learned Advocate for the accused nos.1,6 and 7 submitted that as the date of activation of the mobile no.9768114422 is not mentioned in the customer application form (Exh.1070), it cannot be said that the said mobile number was active at any time prior to the incident or at the time of the incident or any time thereafter and therefore, it cannot be said that the accused no.7­Sachin Gaikwad was actually using the said mobile number. The submission has no basis. Firstly, there is no requirement of law that the date of activation of the mobile number must be mentioned in the customer application form. Further, PW.113­Nodal Officer Aircel has 516 clearly stated that as per the guidelines of the Department of Telecommunications, the date on which the Distributor authenticates the documents of the customer is the date of activation of the mobile number. In the present case case, the date of authentication was 11/11/2009. The fact that when PW.113­Nodal Officer Aircel offered to produce the relevant guidelines issued by the Department of Telecommunications the learned Advocate for the accused nos.1,6 and 7 did not ask him to produce the same further shows that the above statement made by him was correct. That apart, the perusal of the CDR (Exh.991) clearly shows that the said mobile number was very much active during the period 01/05/2011 to 23/06/2011. Further, as the SIM card (Article­140) of the said mobile number was recovered from the accused no.7­Sachin Gaikwad, the burden was upon him to show that the said SIM card was not active during the period mentioned above. But he failed to discharge the said burden.

770. The correctness of the various CDRs was also sought to doubted on the ground that the CDRs were not retrieved on the basis of the IMEI numbers of the mobile handsets and the CDRs do not show the exact place where the subscriber was found to be roaming. In so far as the objection regarding non­retrieval of the CDRs on the basis of IMEI numbers of the mobile handsets is concerned, the defence has not pointed out how the said fact has affected the correctness of the entries in the CDRs which are available on the record. That apart, none of the Investigating Officers was asked anything about it. It was also not shown how it has prejudiced the defence. Hence, the objection is not sustainable. In so far as the second aspect is concerned, it needs to be noted that on the basis of a CDR the exact location of a person cannot be found. A mobile tower covers an area of anything between 500 meters to 1 km or 517 may be more. Each mobile tower in a particular area is given a cell ID for its identification. If a particular mobile number is used in an area which is covered by a particular mobile tower then in the CDR the cell ID of that mobile tower will be reflected and on the basis of the same, the location of a particular customer can be gathered in that 'area'. The cell ID provides the probable location of the customer and after the same is found the Investigating Officer can find out the exact location of the customer after physically searching that area. Therefore, the submission made on this point is required to be rejected.

771. It was then argued that the CDR (Exh.991) cannot be relied upon as according to PW.113­Nodal Officer Aircel though the mobile no.9768114422 was a prepaid number the entry marked 'f' in the CDR (Exh.991) shows that the said mobile number was converted into a post paid number. It was submitted that as per the CDR (Exh.991) the customer was in roaming and in view of the evidence of PW.113­Nodal Officer Aircel that for converting a prepaid connection into a postpaid connection and vice versa the customer has to be in the home network, no value can be attached to the CDR (Exh.991). The said submission has no basis. PW.113­Nodal Officer Aircel has explained what might have happened. He has stated that as the customer was in roaming the call related information received from the other circle may have shown the customer to be a postpaid customer instead of a prepaid customer. PW.113­Nodal Officer Aircel was not confronted with any other material to show that the explanation furnished by him was not correct. Therefore, it cannot be said that the CDR (Exh.991) is not reliable. In any case, for the purposes of the present case, what is important is that whether the SIM card of the mobile no. 9768114422 was in use at the relevant time or not and not whether the connection was a prepaid or postpaid connection. 518

772. It was next argued that though PW.113­Nodal Officer has stated that the cell IDs are required to have minimum 5 digits, some of the cell IDs which are mentioned in the CDR (Exh.991) have only 4 digits. On the basis of this, it was submitted that the CDR (Exh.991) is a tampered document. The said submission has no basis. The cell IDs are numbered for the purposes of the convenience of the service provider as from the cell ID the physical address of the place where the mobile tower is located can be ascertained. The learned Advocate for the accused nos.1,6 and 7 could not point out as to how the fact that certain cell IDs have only 4 digits has affected the corresponding physical addresses of the cell IDs. That apart, there are no Rules which say that the Cell IDs must always contain minimum 5 digits.

773. The authenticity of the CDRs produced by the prosecution was also challenged on the ground that the CDRs do not show any entry regarding the messages regarding recharging of the prepaid mobile number, promotional SMS etc. In so far as message regarding recharge of the mobile number is concerned, the same will be received by the customer only when the customer recharges the mobile number and only then such SMS will be reflected in the CDR. It is not the case that any of the accused had recharged his mobile number at that time. Therefore, the messages in that regard were not reflected in the relevant CDRs. With regard to the receipt of promotional SMS also, they will be reflected in the CDR only if the service provider sends the same. No questions were asked to the Nodal Officers on this point. It also depends upon the fact whether the customer has activated the 'Do not disturb' service on his mobile phone. If the customer has activated such service then surely he will not receive any promotional SMS on his mobile number. 519

774. It was next argued that the various CDRs produced by the prosecution cannot be relied upon as there is difference in the last digit of the IMEI number found on the handsets which were seized from the accused persons and the last digit of the IMEI number which is recorded in the various CDRs which changes the identity of the mobile phones and as such the accused persons cannot be linked with the use of those mobile phones.

775. The International Mobile Equipment Identity number (IMEI) (14 digits plus a check digit) or IMEISV number (14 digits plus two software version digits) includes information on the origin, model and serial number of the device. The model and origin comprise initial 8 digit portion of the IMEI/SV known as the Type Allocation Code (TAC). The remainder of the IMEI is a manufacture code defined with a Luhn check digit at the end. In so far as the present case, is concerned, it has been brought on the record through the evidence of the various Nodal Officers that the system automatically generates the last digit of the IMEI as '0'. It has also come on the record that the identity of a mobile phone can be ascertained from the first 14 digits of the IMEI number. The above facts are sufficient to take care of the argument made by the learned Advocate for the accused nos.1,6 and 7 on this point. However, in order to understand this point better it will be proper to make a note of Luhn algorithm. The understanding of the Luhn algorithm will show that the identity of the mobile handset does not change if the last digit of the IMEI number is reflected in the CDR as '0'.

776. Luhn algorithm calculates digit sequence checksum (mod 10), calculates validation digit (the digit to be appended to the digit sequence 520 to make whole sequence checksum equal to zero). The Luhn algorithm was developed by German computer scientist Hans Peter Luhn in 1954. It calculates simple checksum formula used to validate identification number such as credit card numbers and IMEI numbers. The algorithm was designed to protect against accidental errors, such as a digit mistyping. It will detect any single­digit error, as well as almost all transpositions of adjacent digits. It will not, however, detect transposition of the two­digit sequence 09 to 90 (or vice versa). The calculator below gives Luhn checksum of the given digit sequence. The sequence is considered valid if the checksum mod 10 equals to zero. It also gives the next check digit to be appended at the end of source sequence to form valid number according to Luhn algorithm. The formula is quite simple: to calculate Luhn checksum one needs to sum all odd digits (calculating from right to left, so last digit is considered N1) plus sum of all even digits multiplied by 2, if the product of multiplication is greater than 9 one must subtract 9. If the last digit of the checksum is zero, the whole sequence is valid. To produce validation digit one can simply append "0" to source sequence and calculate Luhn checksum again. If last digit of the obtained checksum is zero then the validation digit is also zero, otherwise validation digit can be obtained by subtracting last checksum digit from 10.

How the last digit of any IMEI number is calculated.

777. The last number is also called a check digit and can be calculated by using the Luhn algorithm. One has to note down the first 14 digits of IMEI number from left side. One can get this displayed on the screen of the phone by typing *#06#. As a test case, let's consider the IMEI number 354865047936636 of the mobile phone (Article­75) which was recovered from the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. In the 521

CDR (Exh.972), the said IMEI number is reflected as 354865047936630. The last (15th) digit can be found out by calculation using first 14 digits.

Step 1 : Note down first 14 digits of IMEI number. Step 2 : Multiply alternate digits by 2 starting from right hand side. Step 3 : Add digits of each cell. Step 4 : Added result. Step 5 : Add digits of all cells.

Step 1 3 5 4 8 6 5 0 4 7 9 3 6 6 3 Step 2 3 10 4 16 6 10 0 8 7 18 3 12 6 6 Step 3 3 1+0 4 1+6 6 1+0 0 8 7 1+8 3 1+2 6 6 Step 4 3 1 4 7 6 1 0 8 7 9 3 3 6 6 Step 5 3+1+4+7+6+1+0+8+7+9+3+3+6+6

Total Sum =64 Next higher value of 64 in multiple of 10 is 70. So the desired last digit is 70­64= 6. It matches with the original IMEI number.

778. This is the reason why the last digit is always reflected as '0' in the CDRs. Thus, in view of the above, it is clear that the objection raised by the learned Advocate for the accused nos.1,6 and 7 about the authenticity of the CDRs is without any basis.

779. It was next argued that the CDRs are not reliable for the reason that though the call details were called by the Investigating Agency for a particular period, the call details of each date during that period are not reflected in the CDRs. The said submission has also no basis. When the details are called for, the record will show only dates on which the phone calls/ SMS were made or received. The dates on which there was no activity will not be reflected in the CDRs. In this regard, let's consider the 522 example of a pass book of Bank. Whenever the customer updates the entries in his pass book only the dates on which there is some activity in the account and the corresponding activity will be reflected in the pass book.

780. It was then argued that the CDRs cannot be read in evidence as in the certificates which were issued u/s.65B of the Evidence Act,1872 by the various Nodal Officers the date of which the printout of the CDR was taken, the crime number in relation to which the certificates were issued, the number of pages of the CDR and the period for which the information was being furnished was not mentioned. It was also submitted that the Nodal Officers have nowhere specifically stated in the certificates that the same were prepared by them and that their contents were correct. It may be noted that section 65B of the Evidence Act,1872 does not say that all the above details should be mentioned in the certificate u/s.65B of the Evidence Act,1872. The statements which are required to be mentioned in the certificate are provided in section 65B(4) of the Evidence Act,1872. The various certificates which are issued u/s.65B of the Evidence Act,1872 by the Nodal Officers fulfill the necessary requirements of the law. Hence, the submission stands rejected.

781. In so far as the CDR (Exh.1112) of the SIM card (Article­77) of the international no.+447924557108 is concerned, it was submitted that the same is suspicious as the printout of the same was taken on 28/07/2011 and the certificate (Exh.1111) u/s.65B of the Evidence Act,1872 was prepared on 27/07/2011 itself suggesting that the documents were already prepared to implicate the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. In this regard, if the evidence of PW.121­Nodal Officer Vodafone is seen then it will be clear that he has explained that the error 523 in stating the date had occurred inadvertently. The explanation is reasonable and needs to be believed. It has come in the evidence of PW.121­Nodal Officer Vodafone that on daily basis they received several requisitions from the Law Enforcement Agencies directing them to furnish the necessary information of certain mobile numbers. Therefore, it is quite possible that while signing the reply, inadvertently wrong date may have been mentioned. It can happen to anybody. In any case, this does not affect the correctness of the contents of the CDR (Exh.1112) which is for the period 01/01/2011 to 25/06/2011.

782. It was then argued that though the prosecution has claimed that the SIM card of the international no.+447924557108 was seized from the accused no.1­Rohee Tangappan Joseph @ Satish Kalya at the time of his arrest, the personal search and arrest panchanama (Exh.493) does not show that the SIM card of the no.+447924557108 was seized and therefore, the same cannot be used to connect the accused no.1­Rohee Tangappan Joseph @ Satish Kalya with the use of the same. It may be noted that in the personal search and the arrest panchanama (Exh.493) the serial number of the SIM card (Article­77) is mentioned as 8923418450000035108. During the cross­examination of PW.136­PI Kale it was brought on the record that the accused persons themselves had given the mobile numbers. It is also necessary to note that during cross­ examination of PW.136­PI Kale it was not suggested to him that the serial number which is mentioned on the SIM card (Article­77) does not correspond to the international mobile no.+447924557108. In view of the same, the argument advanced by the learned Advocate for the accused no.1 on this point cannot be accepted. That apart, softwares are available with the cybercell department and by feeding the serial number of the SIM card the mobile number can be generated. Further, during the 524 investigation, the said SIM card was sent to the FSL,Kalina for analysis and after the analysis the CA report (Exh.242) was issued. The said report shows that the SIM card (Article­77) bearing serial no.8923418450000035108 [which is mentioned in the panchanama (Exh.493)] corresponds to the international no.+447924557108.

783. The learned Advocate for the accused no.5 argued that the use of the mobile no.8652449019 cannot be attributed to the accused no.5­Arun Dake as there is no evidence to show that he was using the same. Reliance was placed on the evidence of PW.16­Sanjay Kamble who has stated that he had no connection with that mobile number and that he had given his document i.e. copy of driving license to PW.99­Vijay Chauhan who has also stated that he did not know anything about the mobile no.8652449019. It may be noted that PW.99­Vijay Chauhan did not support the case of the prosecution. However, it has come in the evidence of PW.16­Sanjay Kamble that he had given his documents to PW.99­Vijay Chauhan prior to 4­5 months from 03/09/2011 and by using the said document, PW.99­Vijay Chauhan had purchased the SIM card of mobile no.8652449019. There is no reason to disbelieve the statement made by PW.16­Sanjay Kamble. That apart, through the confession made by the accused no.5­Arun Dake which is a substantive piece of evidence under MCOC Act,1999 the prosecution has already proved that the mobile nos.8652449019 and 8652490277 were being used by the accused no.5­ Arun Dake till 10/06/2011. Hence, the objection raised by the learned Advocate for the accused no.5 cannot be sustained.

ANALYSIS 784. Before analyzing the evidence led by the prosecution in support of the substantive evidence, it may be stated that the rule of prudence 525 namely requiring corroboration of the substantive evidence does not mean that each and every circumstance should be separately and independently corroborated. It is sufficient if there is general corroboration of the important incidents, just like in the case of an approver's evidence and it is not necessary that the corroborative evidence itself should be sufficient for conviction.

ANALYSIS OF THE CORROBORATIVE EVIDENCE WITH RESEPCT TO THE CONFESSION MADE BY THE ACCUSED NO.5­ARUN DAKE. 785. The fact that on 07/06/2011, J.Dey had gone to the Uma Palace Bar and Restaurant, LBS road, Mulund along with one person in the evening time and that he was with the deceased accused no.8­Vinod Asrani at that place is duly corroborated by the evidence of PW.7­Ms.Subha Sharma, PW.56­Dr.Shivaji Kachare, PW.60­Mahesh Singh, PW.73­Sanjay Prabhakar and PW.77­Sanjeev Devasia. The conjoint reading of the evidence of all these witnesses clearly shows that on 07/06/2011, in the evening J.Dey had gone to the Uma Palace Bar and Restaurant, LBS road, Mulund where he met the deceased accused no.8­Vinod Asrani and had liquor with him. Their evidence corroborates the statement made by the accused no.5­Arun Dake in his confession on this point.

786. It has come in the confession made by accused no.5­Arun Dake that on 07/06/2011 between 08:30 pm to 11:45 pm he was near the Uma Palace Bar and Restaurant, LBS Road, Mulund along with the accused no.2­Anil Waghmode. The CDR (Exh.958) of the mobile no.8652580503 and the CDR (Exh.961) of mobile no.8652449019 which were being used by the accused no.5­Arun Dake at that time corroborates the fact that on 07/06/2011, at 08:20 pm to 11:06 pm he was near Deep Mandir off­Agra Road, next to Johnson & Johnson, Mulund (West) area (physical address as per cell ID list Exh.986) which is near to the Uma Palace Bar and 526

Restaurant, LBS Road, Mulund.

787. It has come in the confession made by the accused no.5­Arun Dake that on 10/06/2011, when he went to the Andheri railway crossing along with the accused no.3­Abhijit Shinde, the accused no.4­Nilesh Shedge and the accused no.7­Sachin Gaikwad at about 07:30 am, the accused no.2­ Anil Waghmode also came there in a Qualis vehicle along with the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. It has further come in the confession made by the accused no.5­Arun Dake that on 11/06/2011 also (date of the incident) the Qualis vehicle used at the time of the incident and the accused no.7­Sachin Gaikwad was driving the same. The fact that the Qualis vehicle (Article­236) was recovered at the instance of the accused no.2­Anil Waghmode after the incident and the fact that he has failed to give any satisfactory explanation about the location of the said Qualis vehicle (Article­236) on 10/06/2011 and 11/06/2011 though he has admitted the ownership of the said vehicle further supports the case of the prosecution that the Qualis vehicle (Article­236) was the same vehicle which was used in the incident.

788. It has come in the confession made by accused no.5­Arun Dake that on 10/06/2011 he along with the accused no.3­Abhijit Shinde, the accused no.4­Nilesh Shedge and the accused no.7­Sachin Gaikwad went near the railway crossing of Andheri at about 07:30 am where they met the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, the accused no.2­Anil Waghmode and the accused no.6­Mangesh Aagvane and from there all of them went to Amrut Nagar Bus depot, Ghatkopar (West) at about 08:30 am. It has further come in the confession made by the accused no.5­Arun Dake that they waited there for J.Dey till about 12:30 pm in the afternoon but as J.Dey did not come they all went to Peninsula 527

Chamber, Lower Parel (where the Office of J.Dey was situated). The CDRs of the mobile numbers used by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, the accused no.5­Arun Dake, the accused no.6­Mangesh Aagvane, the accused no.7­Sachin Gaikwad corroborate the above fact. The CDR (Exhs.923 and 1112) of mobile no.+447924557108 which was recovered from the accused no.1­Rohee Tangappan Joseph @ Satish Kalya not only shows that on 10/06/2011 he was in Amrut Nagar, Ghatkopar area and then in lower Parel area (It take about 2 minutes to reach Peninsula Chamber from Currey Road) (physical address as per cell ID list Exh.1096) but it also shows he was in continuous contact with the accused no.12­Chhota Rajan on phone on the number 3444 (CDR Exh.1112). Similarly, the perusal of the CDR (Exh.1048) of the mobile no.9867464129 which was also used by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya also shows that on that day he was in the Amrut Nagar, Ghatkopar area (physical address as per cell ID list Exh.1172) since morning from about 08:30 am till 12:16:55 pm. Thereafter, at around 01:14:39 pm he received a phone call from the number 3444 which was made by the accused no.12­Chhota Rajan and the duration of the call was 37 seconds. Further, at around 03:37 pm he was in the lower Parel area (physical address as per cell ID list Exh.1172). The perusal of the CDR (Exh.963) of the mobile number 8652490277 and the CDR (Exh.1035) of the mobile no.9987017977 which were used/ recovered by/from the accused no.5­Arun Dake shows that on 10/06/2011 at around 08:05 am he was at Andheri and between 08:22 am to 03:00 pm he was in the area of Amrut Nagar, Ghatkopar (physical address as per cell ID list Exh.986). Similarly, the perusal of the CDR (Exh.1039) of mobile no.9967844960 recovered from the accused no.6­ Mangesh Aagvane shows that on 10/06/2011, at around 12:23:50 pm to 03:42:34 pm he was also in the area of Golibar Road, Ghatkopar and then 528 he went to Lalbaug, Currey Road, Mumbai which is next to Lower Parel (physical address as per cell ID list Exh.1172). The perusal of the CDR (Exh.1100) of the mobile no.9833625491 which was registered in the name of the accused no.6­Mangesh Aagvane shows that on that day at around 03:14:01 pm he was in lower Parel area (physical address as per cell ID list Exh.1096). The CDR (Exh.991) of the mobile number 9768114422 which was recovered from the accused no.7­Sachin Gaikwad shows that on 10/06/2011 from 08:31:11 am till 12:18:08 pm he was in the Amrut Nagar area, Ghatkopar (West), Mumbai (physical address as per cell ID list Exh.1074).

789. It has come in the confession made by the accused no.5­Arun Dake that on 11/06/2011 in the morning he had called the accused no.7­Sachin Gaikwad with his motorcycle. Thereafter, he went along with accused no.4­Nilesh Shedge near the railway crossing of Andheri. At that place, the accused no.3­Abhijit Shinde also came there with his motorcycle. It has also come in the confession that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, the accused no.2­Anil Waghmode and the accused no.6­Mangesh Aagvane also came there and from there all of them went to the R­City Mall, Amrut Nagar at Ghatkopar where the accused no.7­ Sachin Gaikwad had directly come on his motorcycle. The above statements are duly corroborated by the relevant CDRs. The CDR (Exh.1048) of the mobile no.9867464129 which was used by the accused no.1­Rohee Tanagappan Joseph @ Satish Kalya shows that on 11/06/2011 from about 09:13 am to 01:57 pm he was in the Amrut Nagar area of Ghatkopar (physical address as per cell ID list Exh.1172). The CDR (Exh.1035) of the mobile no.9987017977 which was recovered from the accused no.5­Arun Dake shows that on 11/06/2011 from about 08:00 am to 02:00 pm he was also in Amrut Nagar area of Ghatkopar (physical 529 address as per cell ID list Exh.986). Similarly, the perusal of the CDR (Exh.1039) of mobile no.9967844960 recovered from the accused no.6­ Mangesh Aagvane shows that on 11/06/2011, at around 09:24:11 am to 01:40:47 pm he was also in the Amrut Nagar, Ghatkopar area (physical address as per cell ID list Exh.1172). The perusal of the CDR (Exh.991) of mobile no.9768114422 recovered from accused no.7­Sachin Gaikwad shows that on 11/06/2011 from 08:21:45 am to 02:09:37 pm he was also in Amrut Nagar, Ghatkopar (West) area (physical address as per cell ID list Exh.1074).

790. It has come in the confession of accused no.5­Arun Dake on the same day (11/06/2011) at around 01:30 pm, he saw J.Dey driving his motorcycle and then all of them started following J.Dey. It has further come in his confession that after driving for some time J.Dey entered the Hiranandani area and they all followed him and when J.Dey was near the D'Mart Shopping Mall the accused no.1­Rohee Tangappan Joseph @ Satish Kalya fired the first bullet on the back of J.Dey. The perusal of the CDR (Exh.1048) of the mobile no.9867844960 which was used by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya shows that on 11/06/2011 between 02:10:44 pm to 02:54:30 pm he was in Powai area (physical address as per cell ID list Exh.1172). The perusal of the CDR (Exh.991) of mobile no.9768114422 recovered from accused no.7­Sachin Gaikwad also shows that on 11/06/2011 at 02:26:54 pm he was in Powai area near the main gate of IIT, Powai. Thereafter, from 02:28:19 pm to 02:55:35 pm he was in the area which was close to the spot of the incident and at 02:58:47 pm he was at Central Avenue Road, Hiranandani Business Park, Powai (physical address as per cell ID list Exh.1074) which was just near the spot of the incident. Similarly, the perusal of the CDR (Exh.1039) of mobile no.9967844960 recovered from the accused no.6­ 530

Mangesh Aagvane also shows that on 11/06/2011, at 02:26:16 pm he was near Hiranandani Hospital, Powai (physical address as per cell ID list Exh.1172). It may be noted that the incident took place at around that time only. The perusal of the CDR (Exh.1035) of mobile no.9987017977 recovered from the accused no.5­Arun Dake also shows that on 11/06/2011 at around 02:12:03 pm he was near Hiranandani Hospital, Powai (physical address as per cell ID list Exh.986).

791. It has come in the confession made by the accused no.5­Arun Dake that on 11/06/2011 i.e. at the time of the incident, he was driving a motorcycle and the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was the pillion rider. Similarly, the accused no.3­Abhijit Shinde was driving another motorcycle and the accused no.4­Nilesh Shedge was the pillion rider. The accused no.6­Mangesh Aagvane was driving the third motorcycle and the accused no.2­Anil Waghmode was the pillion rider and the accused no.7­Sachin Gaikwad was driving a Qualis vehicle and following all of them. The prosecution has already proved the recovery of the Qualis vehicle at the instance of the accused no.2­Anil Waghmode. The prosecution has also proved the recovery of three motorcycles at the instance of the accused nos.4,6 and 7. The motorcycle bearing registration no.MH­01­AF­8843 (Article­261) was recovered at the instance of the accused no.4­Nilesh Shedge. This motorcycle was registered in the name of PW.30­Dattatray More who was the cousin brother of the accused no.4­ Nilesh Shedge. The accused no.4­Nilesh Shedge has not explained as to how he came into the possession of the said motorcycle at the time of the incident or how he came to know about the place where the said motorcycle was parked. The motorcycle bearing registration no.MH­02­ AN­4648 (Article­240) was recovered at the instance of the accused no.6­ Mangesh Aagvane. This motorcycle was registered in the name of PW.28­ 531

Dattatray Chavan. The accused no.6­Mangesh Aagvane has not explained as to how he came into the possession of that motorcycle at the time of the incident or how he came to know about the place where the said motorcycle was parked. The motorcycle bearing registration no.MH­06­ AH­4891 (Article­233) was recovered at the instance of the accused no.7­ Sachin Gaikwad. This motorcycle was registered in the name of PW.31­ Suresh Waghmare who was the brother­in­law of the accused no.7­Sachin Gaikwad. The accused no.7­Sachin Gaikwad has not explained as to how he came into possession of the said motorcycle at the time of the incident or how he came to know the place where the said motorcycle was parked. Therefore, the only inference which can be drawn is that the above mentioned vehicles were the same vehicles which were used by the accused nos.1 to 7 at the time of the incident.

792. At this stage, it may be reiterated that none of the owners of the three motorcycles have come forward for taking the custody of their motorcycles. From the make of the motorcycles, it can be said that each of the motorcycle costs anything between Rs.50,000/­ to Rs.80,000/­. The evidence of PW.30­Dattatray More, PW.28­Dattatray Chavan and PW.31­ Suresh Waghmare it is quite clear that they were not so affluent that they could have afforded to leave their motorcycles just like that. The fact that none of these witnesses has bothered to apply to the Court for return of the custody of their motorcycles is also indicative of the fact that these motorcycles were used in committing the murder of J.Dey.

793. As stated earlier, it has come in the confession made by the accused no.5­Arun Dake that it was the accused no.1­Rohee Tangappan Joseph @ Satish Kalya who had fired five bullets at J.Dey resulting in his death. It may be stated that through the confession made by the accused no.9­ 532

Deepak Sisodiya, the prosecution has already proved that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya had procured two revolvers and 25 cartridges from Haldvani, Nainital on 14/05/2011 i.e. 22 days prior to the incident. The recovery of one revolver i.e. revolver (Article­ 249) and 20 live cartridges (Article­250 colly.) at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya corroborates the statement made by the accused no.5­Arun Dake regarding the use of revolver by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya in committing the murder of J.Dey. Further, the conjoint reading of the CA/Ballistic reports (Exhs.230, 231 and 236) shows that the lead (Article­ 215) which was found near the spot of the incident and the lead (Article­ 247) recovered from the body of J.Dey were fired from one and the same .32” caliber revolver (Article­249). As per CA report (Exh.236) the revolver (Article­249) was found to be in working condition and residue of fired ammunition­nitrate was detected in the barrel washing indicating that the revolver (Article­249) was used for firing prior to its receipt in the FSL. This further confirms the fact that the revolver (Article­249) which was recovered at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was used for committing the murder of J.Dey. The accused no.1­Rohee Tangappan Joseph has failed to give any explanation about the same.

794. It has further come in the confession made by the accused no.5­ Arun Dake that after the incident the accused no.1­Rohee Tangappan Joseph @ Satish Kalya got down from the motorcycle of the accused no.5­ Arun Dake and told him to meet him near the Goregaon Railway Station Bus depot and accordingly, he went there. The CDR (Exh.1035) of the mobile no.9987017977 used by the accused no.5­Arun Dake at that time corroborates the above statement made by him. The perusal of the CDR 533

(Exh.1035) of mobile no.9987017977 shows that at 03:14:13 pm i.e. after about 15­20 minutes after the incident the location of the accused no.5­ Arun Dake was at Goregaon (physical address as per cell ID list Exh.986).

795. It has come in the confession made by the accused no.5­Arun Dake on the next day of the incident i.e. on 12/06/2011, the accused nos.2 to 5 went to Dahisar in the morning where the accused no.1­Rohee Tangappan Joseph @ Satish Kalya had come in the Qualis vehicle and from there all the five of them went to Pavagarh, Gujarat in the same Qualis vehicle. The CDR of the mobile number used by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and the accused no.4­Nilesh Shedge corroborates the above statement. The perusal of the CDR (Exh.909) of mobile no.8655292230 which was recovered from the accused no.1­Rohee Joseph @ Satish Kalya shows that on 12/06/2011, at around 10:13 am and 10:16 am he was at Charoti, Dahanu, at 02:13 pm he was at Kamrej MCN, Surat which is in Gujarat (physical address as per list annexed to CDR Exh.909). Similarly, the perusal of the CDR (Exh.1095) of the mobile no.8879140112 which was registered in the name of the accused no.4­ Nilesh Shedge shows that on 12/06/2011 and 13/06/2011 he was in the Gujarat circle of the Vodafone service operator (physical address as per cell ID list Exh.1096).

796. It has come in the confession made by accused no.5­Arun Dake that on the next day i.e. on 13/06/2011, they left Pavagarh and went to Shirdi. They reached Shirdi late in the night. On 14/06/2011, they went to Sai Mandir and from there they went to Shani Shingnapur. The perusal of the CDR (Exh.909) of mobile no.8655292230 which was recovered from the accused no.1­Rohee Joseph @ Satish Kalya shows that on 13/06/2011 at 10:02:32 pm he was at village Lakhanpur, Taluka Dhindori, Dist. Nashik. 534

Similarly, at 11:16:06 pm he was at village Shinde, Taluka and Dist. Nashik. On 14/06/2011 between 03:38:01 am to 08:32:27 am he was at Shirdi. Thereafter, at 01:21:06 pm he was still at Shirdi. Similarly, from 02:21:24 pm to 10:53:15 pm he was at Shirdi and then at Shani Shingnapur (physical address as per list annexed to CDR Exh.909). The perusal of the CDR (Exh.1095) of the mobile no. 8879140112 which was registered in the name of the accused no.4­Nilesh Shedge shows that on 14/06/2011 he again returned to Maharashtra (Home) circle of Vodafone service operator and he was in the Home circle till 16/06/2011.

797. It has come in the confession made by the accused no.5­Arun Dake that from Shani Shingnapur, on the same day i.e. on 14/06/2011, they went to Solapur and reached there in the night and on 15/06/2011, the accused nos.1,2,3 and 5 went to a 'math' in Akkalkot area and stayed there for one night. Further, on 16/06/2011 they went to Yadgir, Karnataka and reached there at around 02:30 am in the mid­night. The perusal of the CDR (Exh.909) of mobile no.8655292230 which was recovered from the accused no.1­Rohee Joseph @ Satish Kalya shows that from 16/06/2011 at 03:13:23 pm till 17/06/2011 he was at Solapur and then at Akkalkot which is in District Solapur. Similarly, on 17/06/2011 at 07:32:27 pm he was at village Sindagi area at Gulbarga which is in Karnataka. [NOTE: Yadgir (the place mentioned by the accused no.5­Arun Dake in his confession) was carved out from the erstwhile District Gulbarga on 10/04/2010]. Thereafter, on 17/06/2011, they went to Vijapur (officially known as Bijapur District), Karnataka after 03:00 pm (physical address as per list annexed to CDR Exh.909). Similarly, the perusal of the CDR (Exh.1095) of the mobile no.8879140112 which was registered in the name of the accused no.4­Nilesh Shedge shows that from 17/06/2011 at 10:09:11 pm to 23/06/2011 at 03:37:56 pm he was in the Karnataka 535 circle of the Vodafone service operator (physical address as per cell ID list Exh.1096).

798. It has come in the confession made by the accused no.5­Arun Dake that on 18/06/2011, he went to Swargate, Pune and stayed there for two days as the Father of the Church was known to him and thereafter he returned to Mumbai. As per CDR (Exh.1053) of mobile no.7709131255 which was registered in the name of accused no.5­Arun Dake, on 20/06/2011 at 08:34:54 pm till 21/06/2011 he was at Kondwa, Pune. So also, from 22/06/2011 at 10:54:46 am he was at transit camp, Dharavi (physical address as per cell ID list Exh.1172).

799. From the above, it can be seen that the locations of the above mentioned accused persons on the dates prior to the incident, on the date of the incident and after the incident which are reflected from the various CDRs correspond to the locations of the accused persons which are stated by the accused no.5­Arun Dake in his confession. It is important to note that the accused nos.1 to 7 were not residents of either Ghatkopar area or the Powai area. From the addresses given by them in their statement which was recorded u/s.313(b) of Cr.P.C.,1973, it can be seen that they were residents of places which were somewhat far away from Ghatkopar and Powai. The accused nos.1 to 7 have not explained as to what they were doing in the Ghatkopar and Powai area on 10/06/2011 and 11/06/2011. It cannot be a matter of co­incidence that on the above mentioned dates they were found in Ghatkopar and Powai area where J.Dey was found. Similarly, the concerned accused persons have not explained as to what they were doing in Gujarat or Shirdi or Akkalkot or Yadgir after the incident. All these facts further strengthen the case of the prosecution. 536

ANALYSIS OF THE CORROBORATIVE EVIDENCE WITH RESEPCT TO THE VARIOUS EXTRA­JUDICAL CONFESSIONS MADE BY THE ACCUSED NO.12­CHHOTA RAJAN. 800. Through the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra, the prosecution has proved the various extra­judicial confessions made by the accused no.12­ Chhota Rajan. The fact that on 01/07/2011, PW.78­Sunilkumar Singh had received the phone call on his mobile no. 7738409480 from the accused no.12­Chhota Rajan from the number +5032 after about 09:00 pm is corroborated by the CDR (Exh.1059). The entry dated 01/07/2011 at time 09:00:35 pm in the CDR (Exh.1059) shows that PW.78­Sunilkumar Singh had received a call from the number 005032 and its duration was 1720 seconds(28.66 minutes). This is further corroborated by the evidence of PW.68­Sachin Ramesh Kalbag. He was in the field of journalism since last 23 years and an independent witness. His evidence shows that after the news about the conversation of PW.78­Sunilkumar Singh with the accused no.12­Chhota Rajan was aired on the 'NDTV India' news channel, he was also interviewed by the 'NDTV India' news channel with reference to the phone call received by PW.78­Sunilkumar Singh and the involvement of the accused no.12­Chhota Rajan in the murder of J.Dey.

801. Similarly, the fact that on 18/08/2011, PW.87­Nikhil Dixit had received the phone call on his mobile no.9930900303 from the accused no.12­Chhota Rajan from the number +3444 at about 04:00 pm is corroborated by the CDR (Exh.1128). The entry dated 18/08/2011 at time 05:12:57 pm in the CDR (Exh.1128) does show that PW.87­Nikhil Dixit had received a call from the number 003444 and its duration was 661 seconds(11.01 minutes). There is a minor discrepancy regarding the time of the call as stated by PW.87­Nikhil Dixit. This appears to be due to lapse 537 of memory and needs to be ignored as PW.87­Nikhil Dixit was deposing in the Court after about six years of the incident. He cannot be expected to possess a photographic memory and recall the exact time at which he received the phone call from the accused no.12­Chhota Rajan.

802. The fact that in August 2011, PW.100­Aariz Chandra had received two phone calls on his mobile no.9819582444 from the accused no.12­ Chhota Rajan from the number +3444 and that he received the second phone call at about 06:00 pm is corroborated by the CDR (Exh.1124). The entry dated 25/08/2011 at time 03:05:47 pm and the entry dated 27/08/2011 at time 06:04:16 pm in the CDR (Exh.1124) does show that PW.100­Aariz Chandra had received calls from the number +3444 and its duration was 1699 seconds (28.31 minutes) and 1138 seconds (18.9 minutes) respectively.

803. Through the evidence of PW.76­Jitendra Dixit, the prosecution has already proved that the accused no.12­Chhota Rajan had confessed to him that J.Dey was murdered at his instance. It may be noted that along with the charge­sheet, the prosecution had filed the CDR of the mobile no. 9820703347 which belongs to PW.76­Jitendra Dixit along with the certificate u/s.65B of the Evidence Act,1872 which was furnished by PW.121­Nodal Officer, Vodafone to the Investigation Agency during the course of investigation. It appears that due to oversight of the learned SPP, the said CDR and the certificate u/s.65B of the Evidence Act,1872 were not proved by the prosecution through the concerned Nodal Officer. The said CDR shows that on 16/11/2011, he received the first call from the number +3444 at 01:50:16 pm and the duration of the call was 1 second. Immediately thereafter, i.e. at 01:51:16 pm he received the second call and the duration of the said call was 1590 seconds which was quite long. 538

However, as the prosecution has not proved the same, it is not being considered.

804. It has come in the evidence of PW.76­Jitendra Dixit and PW.78­ Sunilkumar Singh that the accused no.12­Chhota Rajan had told them that he was called by J.Dey to London but he did not go there, that J.Dey had told him that he could meet him in Philippines. Through the oral evidence of PW.35­Jacob George, PW.42­Rajan Seth, PW.45­V.R. Divakaran, PW.46­Ms.Poornima Swaminathan, PW.68­Sachin Kalbag and PW.104­ Shaikh Fakrullah the prosecution has proved in April­May, 2011 i.e. about one month prior to the incident, J.Dey had visited London and that he was also planning to visit Philippines. The evidence of the above witnesses further shows that there was some contact between J.Dey and the accused no.12­Chhota Rajan. Otherwise, there was no reason for the accused no.12­Chhota Rajan to know that J.Dey had gone to London and that he was also planning to go to Philippines.

805. At this stage, it is also necessary to make a note of the fact that through the evidence of PW.42­Rajan Seth, it has come on the record that J.Dey had told him that he was receiving phone calls from the accused no.12­Chhota Rajan because of which J.Dey had a feeling that he might have committed some mistake and that he had told J.Dey to take care. This part of his evidence has not been shattered in cross­examination. It is true that it has come in his evidence that his statement was not recorded by the DCB, CID. But the DCB, CID had made an enquiry with him when the case was being investigated by it. He has also stated that the facts which were deposed by him in his examination­in­chief were never stated by him before the Mumbai Police. During the cross­examination of PW.42­ Rajan Seth, he was not asked by the defence as to why he did not state 539 these facts at that time. Also, none of Investigating Officers from the Crime Branch were asked by the defence as to why they did not record the statement of PW.42­Rajan Seth. Further, it is also not the stand of the defence that PW.42­Rajan Seth was a planted witness. At least, no such suggestion was given to PW.152­IO CBI who had recorded his statement. Therefore, his evidence can also be taken into consideration to hold that J.Dey was killed at the instance of the accused no.12­Chhota Rajan.

806. The case of the prosecution regarding the involvement of the accused no.12­Chhota Rajan in the murder of J.Dey is further strengthened by the evidence of PW.90­Manoj Shivdasani. It has come in his evidence that on 04/08/2011, the accused no.12­Chhota Rajan had made a phone call to him for making enquiry about the health of the deceased accused no.8­Vinod Asrani. That phone call was intercepted. The CD (Exh.777) containing the record of the conversation between PW.90­ Manoj Shivdasani and the accused no.12­Chhota Rajan has been duly proved by the prosecution. If one hears the contents of the conversation it will be clear that during the conversation the accused no.12­Chhota Rajan was referring to none other than J.Dey. During the conversation, the accused no.12­Chhota Rajan told PW.90­Manoj Shivdasani that he was sure that J.Dey was working for Dawood and the ISI. He also said that he was writing wrong things about him. He further stated that J.Dey had called him to London and Philippines. The fact that J.Dey had gone to London earlier in the year and was intending to go to Philippines is already proved by the prosecution. As stated earlier, even in the various extra­judicial confessions made by the accused no.12­Chhota Rajan, it has come on record that J.Dey had requested the accused no.12­Chhota Rajan to meet him in London or Philippines. It is not disputed that Dawood Ibrahim is the arch rival of the accused no.12­Chhota Rajan. Through 540 independent evidence the prosecution has already proved that J.Dey had written various news articles against the accused no.12­Chhota Rajan. All the above facts taken together makes it further clear that J.Dey was killed at the instance of the accused no.12­Chhota Rajan.

807. The fact that on 04/08/2011, PW.90­Manoj Shivdasani had received a phone call on his mobile no.9820048533 from the accused no.12­Chhota Rajan is further corroborated by his statement (Exh.1601) which was recorded u/s.164 of Cr.P.C.,1973 and the CDR (Exh.1131) of his mobile number. The perusal of the CDR (Exh.1131) shows that on 04/08/2011 at 02:21:52 pm PW.90­Manoj Shivdasani had received a phone call on his mobile no.9820048533 from the number 03444 and the duration of the said call was 138 seconds (2.3 minutes). The above fact further corroborates the fact that the accused no.12­Chhota Rajan was using the number 03444 for making phone calls which in turn corroborates the evidence of PW.76­Jitendra Dixit, PW.87­Nikhil Dixit, PW.100­Aariz Chandra and PW.50­Indukumar Amin who had also received the phone call from the accused no.12­Chhota Rajan from the same number.

ANALYSIS OF THE OTHER COROBORATIVE EVIDENCE. 808. Through the confession made by the accused no.9­Deepak Sisodiya, the prosecution has proved that the relations between the accused no.9­ Deepak Sisodiya and the accused no.12­Chhota Rajan were good. They were rather strong. This is clear from the fact that even after the incident there was some contact between both of them. This fact has come on the record from the examination report (Exh.1305). This report is with respect to the data which was retrieved from the two I­Phones (Articles­289 & 291) and the I­Pad (Article­171) which were recovered from the accused no.12­Chhota Rajan. 541

809. The accused no.11­Deepak Sisodiya has admitted in his statement which was recorded u/s.313(b) Cr.P.C.,1973 that the mobile no.9675778971 belongs to him. The perusal of the relevant part of the report contained in DVD (Article­294) shows that on 11/02/2015, the accused no.12­Chhota Rajan had received a message (entry at Sr.no.1239) from the number 447700068837 at 07:40:52 hrs. and the contents of the said message showed the mobile number 9675778971 of the accused no.9­Deepak Sisodiya and his name. This clearly shows that there was some relation between the accused no.12­Chhota Rajan and the accused no.9­Deepak Sisodiya and even after the incident in question there was some contact between the two of them. However, neither of them has given any explanation in this regard. At this stage, it may be stated that while recording the statement u/s.313(b) of Cr.P.C.,1973 of the accused no.12­Chhota Rajan, a specific question was put to him in this regard. It is reproduced below for ready reference:

“Q. 467: It has come in the evidence of PW.151­Vishal Subash Koik that the entry at Sr.No.1239 was a message received from the no.447700068837 on 11/02/2015 at 07:40:52 Hrs. and the contents of the said message shows the number 9675778971 and the name 'Deepak Shisodia'. What do you have to say about it?

Ans.: It is not correct. I do not know. The mobile phone does not belong to me.”

810. From the above, it is clear that instead of explaining as to for what purpose the accused no.12­Chhota Rajan had received the mobile number and the name of the accused no.9­Deepak Sisodiya, he has simply chosen to be in denial mode. Some plausible explanation was expected from him. As no explanation is furnished, adverse inference needs to be drawn 542 against the accused no.12­Chhota Rajan.

OTHER SUBMISSIONS MADE BY THE DEFENCE. 811. As per the defence, the conspiracy to kill J.Dey was hatched after J.Dey wrote the articles dated 20/05/2011 and 02/06/2011 (Article­752 colly.) but as per the confession made by the accused no.9­Deepak Sisodiya, the revolver and cartridges were produced by accused no.1­ Rohee Tangappan Joseph @ Satish Kalya on 14/05/2011 which was much prior to the publication of the new article (Exh.752 colly.) and as such the case of the prosecution that there was a conspiracy to commit the murder of J.Dey cannot be accepted.

812. It is no doubt true that as per the confession made by the accused no.9­Deepak Sisodiya that the 25 cartridges and the revolvers were given to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya on 14/05/2011 which was much prior to 28/05/2011 and 02/06/2011. But, it cannot be forgotten that a conspiracy is hatched in private and it is rarely possible to establish a conspiracy by direct evidence. Also, it is well settled that it is always difficult to spell out the details as to what is the starting point of a conspiracy. In the case of Esher Singh V. State of A.P. reported in (2004) SCC 585 it was held that it is not always possible to give affirmative evidence about the date of the formation of a criminal conspiracy. Therefore, the existence and object of the same has to be inferred from the circumstances and the conduct of the accused.

813. In the present case, through the confession made by the accused no.9­Deepak Sisodiya, the prosecution has proved that the accused no.9­ Deepak Sisodiya and the accused no.12­Chhota Rajan were in contact with each other. The prosecution has also proved that through the accused no.12­Chhota Rajan the accused no.9­Deepak Sisodiya was knowing the 543 accused no.1­Rohee Tangappan Joseph @ Satish Kalya since long. The prosecution has also proved that on 14/05/2011, two of the revolvers and the cartridges which were supplied by the accused no.9­Deepak Sisodiya and the wanted accused no.1­Nayansingh Bista to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya at the instance of one person by name Sahil who was very close to the accused no.12­Chhota Rajan. One of the revolvers and the cartridges were used for committing the murder of the J.Dey. The revolver (Article­249) which was used for committing the murder of J.Dey was recovered at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. From the various extra­judicial confessions made by the accused no.12­Chhota Rajan, it is very much clear that the accused no.12­Chhota Rajan was not happy with what J.Dey was writing about him. He was sure that J.Dey was working for Dawood Ibrahim who was his arch rival. PW.42­Rajan Seth has also deposed that J.Dey had also told him that he had also received phone calls from the accused no.12­Chhota Rajan as he might have committed some mistake. Therefore, it is quite possible that the accused no.12­Chhota Rajan may have thought of getting rid of J.Dey and started planning for the same. Accordingly, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was instructed to get the firearm and cartridges from the accused no.9­ Deepak Sisodiya and the wanted accused no.1­Nayansingh Bista and after the news articles (Exh.752 colly.) were published and which were read by the accused no.12­Chhota Rajan he decided to draw the final straw. Even assuming for a moment that the accused no.1­Rohee Tanagappan Joseph @ Satish Kalya had procured the revolver and the cartridges for some other purpose, the fact remains that the revolver and the cartridges which were procured by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya from the accused no.9­Deepak Sisodiya and the wanted accused no.1­Nayansingh Bista were used for committing the murder of J.Dey. The 544 evidence and the circumstances taken together clearly show that there was an agreement between the accused no.12­Chhota Rajan and the accused no.1­Rohee Tangappan Joseph @ Satish Kalya and for accomplishing the task the accused nos.2 and 7 were roped in by accused no.1­Rohee Tanagappan Joseph @ Satish Kalya who were more than willing to help accused no.1­Rohee Tanagappan Joseph @ Satish Kalya in committing murder of J.Dey. Therefore, it cannot be said that there is an improbability in the case of the prosecution.

814. The learned Advocate for the accused nos.3,4 and 12 vehemently argued that though section 18 of the MCOC Act,1999 makes confessional statement of an accused admissible evidence against the other accused, still the same cannot be used by the Court against the co­accused without further corroboration on material facts to base a conviction. It was urged that the provisions of section 10 of the Evidence Act,1872 will come into play only when there is other substantive evidence against the accused nos.3 and 4. Similar argument was made on behalf of the accused no.12­ Chhota Rajan with regard to the various extra­judicial confessions made by him. In this regard, reliance was placed upon the judgments in the case of Sidharth etc. V. State of Bihar reported in AIR 2005 SC 4352, Mirza Akbar V. Emperor reported in (1941) 43 BOMLR 20, Emperor V. Abani Bhusan Chakrabutty reported in (1910) ILR 38 Cal 169, Jayendra Saraswati Swamigal V. State of Tamil Nadu reported in AIR 2005 SC 716, Sardul Singh Caveeshar V. The State of Bombay reported in 1958 SCR 161, Kadambini Dassi V. Kumudini Dassi reported in (1903) ILR 30 Cal 983, Natwarlal Shankarlal Mody V. Bombay reported in 1964 Mh.L.J. 1, Sk. Md. Omar V. The State reported in 1965 Cri. L.J. 443, CBI V/s. V.C. Shukla reported in AIR 1998 SC 1406, Ranjitsingh Brahmajeetsing Sharma V. State of 545

Maharashtra reported in AIR 2005 SC 2277, Kishor Bhagtani V. State of Rajasthan reported in 2009 Cri.L.J. 1172, State of Gujrat V. Mohammed Atik and ors. reported in AIR 1998 SC 1686 and Aghnoo Nagesia V. State of Bihar reported in AIR 1966 SC 119. The submission made on behalf of the accused nos.3,4 and 12 cannot be accepted. The accepted principle in law is that a confessional statement of an accused recorded u/s.18 of the MCOC Act,1999 is a substantive piece of evidence even against the co­accused provided the concerned accused are charged and tried together. Therefore, the confession made by the accused no.5­ Arun Dake which was recorded u/s.18 of the MCOC Act,1999 being a substantive evidence against the maker and the co­accused, abettor or conspirator the same can certainly be used against the accused nos.3 and 4. In so far as the judgments which are relied upon are concerned, they are not applicable to the facts of the present case. In the case of Sidharth (supra), Mirza Akbar (supra), Emperor (supra), Jayendra Saraswati Swamigal (supra), Sardul Singh Caveeshar (supra), Kadambini Dassi (supra), Sk. Md. Omar (supra) and V.C. Shukla (supra) the Hon'ble Higher Courts were basically considering the evidentiary value of a statement/ confession made under the General law. As stated earlier, a confession u/s.18 of the MCOC Act, 1999 is a substantive piece of evidence against the maker and the co­accused who are charged and tried together. In so far as the judgments in the case Natwarlal Shankarlal Mody (supra), Ranjitsingh Brahmajeetsing Sharma (supra), Kishor Bhagtani (supra), Mohammed Atik (supra) and Aghnoo Nagesia (supra) are concerned, they are not relevant in so far as the point which has been argued above.

815. In so far as the case of the accused no.12­Chhota Rajan is concerned, section 10 of the Evidence Act, 1872 has no application at all 546 as the statements made by him in the various extra­judicial confessions are restricted to him only. The extra­judicial confessions made by the accused no.12­Chhota Rajan have been considered independently and the prosecution has already proved that the various extra­judicial confessions which were made by the accused no.12­Chhota Rajan to PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra are cogent, trustworthy and reliable.

816. It was also argued that the provisions of section 30 of the Evidence Act,1872 cannot be invoked in the present case and the accused nos.3 and 4 cannot be roped in on the basis of the confession made by the accused no.5­Arun Dake. In this regard, reliance was placed on the judgments in the case of Kashmira Singh V. State of Madhya Pradesh reported in AIR 1952 SC 159, Hari Charan Kurmi and Jogia hajam V. State of Bihar reported in AIR 1964 SC 1184. This Court has gone through the above judgments. The above judgments are also not applicable to the facts of the present case. In the above judgments also, basically the evidentiary value of a confession made under the General law was under consideration. However, having said this, it needs to be noted that in the case of Jameel Ahmed V. State of Rajasthan reported in (2003) 9 SCC 673, the Hon'ble Supreme Court of India while dealing with a case under the TADA Act,1987 has held that section 30 of the Evidence Act,1872 has no role to play when the Court considers the confession of an accused made u/s.15 of the TADA Act,1987 either in regard to himself or in regard to the co­accused. As stated earlier, the provisions of section 18 of the MCOC Act,1999 and the provisions of Section 15 of TADA Act,1987 are pari materia and the law settled under TADA Act,1987 will be applicable as binding precedent in a case under MCOC Act,1999. But that does not affect the case of the prosecution in any manner in view of the provisions 547 of section 18 of the MCOC Act, 1999.

817. In so far as the accused no.9­Deepak Sisodiya is concerned, it quite clear from the confession made by him that he was not aware that the cartridges and the revolver were going to be used for committing the murder of J.Dey. But the fact remains that he was associated with the accused no.12­Chhota Rajan and the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. From his statement, it very much clear that on the say of his friend Sahil who was very close to the accused no.12­Chhota Rajan, he procured 25 cartridges of revolver from the Anurag Gun House. Thereafter, he along with the wanted accused no.1­Nayansingh Bista handed over those cartridges and two revolvers to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. There was conscious/active participation and active consent of the accused no.9­Deepak Sisodiya in the said transaction. Also, it is seen that though he was initially unaware about the fact that the cartridges and the revolvers were meant to be given to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya, he did not express any surprise on seeing him at the Katgodam Railway Station meaning thereby that he was aware about the activities of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. The accused no.9­Deepak Sisodiya has a criminal background. It is said that "the birds of the same feather flock together". Therefore, he did not express any surprise when the revolvers and cartridges were handed over to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. It is well settled that one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. 548

818. At this stage, it will be appropriate to make a note of the judgment of the Hon'ble Supreme Court of India in the case of State of Maharashtra V. Som Nath Thapa reported in AIR 1996 SC 1744. This judgment was relied upon by the prosecution as well as by the defence. In that case, one of the accused was charged for supplying RDX which was ultimately used in the Mumbai bomb blasts. The argument was that the said accused could not have been charged for conspiracy as he was unaware about the fact the RDX was to be used for causing bomb blasts in Mumbai. Negativing the said contention, the Hon'ble Supreme Court of India observed as under:

“17. The Additional Solicitor General has, according to us, stolen a march over the counsel for the accused because of what was stated in Lauria case, as he is undoubtedly right in submitting that RDX, or for that matter bombs, cannot be put to any legitimate use but only to illegitimate use; and it is RDX or bomb which was either handled or allowed to slip by the accused before us. So, this act by itself would establish the intent to use the goods for illegitimate purposes.

21. The Additional Solicitor General has thus a point when he contended that to establish the charge of conspiracy in the present case, it would not be necessary to establish that the accused knew that the RDX and/or bomb a was/were meant to be used for bomb blast at Bombay, so long as they knew that the material would be used for bomb blast in any part of the country.

22. As in the present case the bomb blast was a result of a chain of actions, it is contended on behalf of the prosecution, on the strength of this courts decision in Yash Pal Mittal v. State of Punjab which was noted in para 9 of Ajay Aggarwal case that of such a situation there may be division of performances by plurality of means sometimes even unknown to one another; and in achieving the goal several offences may be committed by the conspirators even unknown to the others. All that is relevant is that all means adopted and illegal acts done must be and 549

purported to be in furtherance of the object of the conspiracy, even though there may be sometimes misfire or overshooting by some of the conspirators.

24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use.”

819. The observations made by the Hon'ble Supreme Court of India in the case of Som Nath Thapa (supra) are squarely applicable to the case against the accused no.9­Deepak Sisodiya. Therefore, it will have to be said that the charge u/s.120­B of the IPC has been clearly brought home by the prosecution as against the accused no.9­Deepak Sisodiya.

820. It was argued that the accused no.9­Deepak Sisodiya cannot be connected with the offence in question as the cartridges which were recovered from the accused no.1­Rohee Tangappan Joseph @ Satish Kalya were never shown to the accused no.9­Deepak Sisodiya. However, there is no such requirement of law. Also, for that reason only the case of the prosecution cannot be doubted in the light of the fact that the prosecution has proved that the confession made by the accused no.9­Deepak Sisodiya was voluntary and truthful. 550

821. It was next argued that the case of the prosecution that the accused no.9­Deepak Sisodiya had procured 25 cartridges from the M/s.Anurag Gun House, Haldvani is suspicious as Shri Sanjaysingh Bansal who was the owner of the said shop had submitted a report that no cartridges were sold by him to the accused no.9­Deepak Sisodiya. It was further submitted that the fact that the Investigating Agency did not even bother to record the statement of Shri Sanjaysingh Bansal casts a serious doubt about the case of the prosecution.

822. With regard to the above submission, it is necessary to have a look at the evidence of PW.143­ACP Duraphe. It has come in his evidence that he did not record the statement of Shri Sanjaysingh Bansal though he had made correspondence with him. He stated that he had issued summon u/s.91 of Cr.P.C.,1973 dated 03/02/2012 calling upon Shri Sanjaysingh Bansal to produce the record maintained by him with respect to the sale and purchase of ammunition and also for recording his statement. He admitted that from the reports it was seen that the cartridges before the Court were not sold by Shri Sanjaysingh Bansal to the accused no.9­ Deepak Sisodiya.

823. From the evidence of PW.143­ACP Duraphe it is quite clear that the report given by Shri Sanjaysingh Bansal was not favorable to the prosecution. However, the fact that the said report does not support the case of the prosecution is not fatal to the case of the prosecution. The case of the prosecution is that the cartridges were given by Shri Sanjaysingh Bansal to the accused no.9­Deepak Sisodiya illegally. Therefore, it would be too much to expect that on being confronted, Shri Sanjaysingh Bansal would admit that he had given the cartridges to the accused no.9­Deepak Sisodiya illegally. Had he done so he would have invited criminal action 551 against himself. Therefore, he was bound to deny the fact that he had illegally given the cartridges to the accused no.9­Deepak Sisodiya. As such, the fact that during the investigation the statement of Shri Sanjaysingh Bansal was not recorded is insignificant.

DELAY IN RECORDING STATEMENTS OF WITNESSES. 824. The learned Advocate for the accused nos.1,6 and 7 relied upon the judgments in the case of Ashraf Hussain Shah V. State of Maharashtra reported in 1996 CRI.L.J. 3147 and Sunil s/o. Chokhoba Shambhakar and anr. V. State of Maharashtra reported in 2008 ALL MR (Cri) 360 to contend that the unexplained delay in recording the statements of witnesses by the Police during the course of the investigation of this case is fatal to the case of the prosecution. It may be noted that though the learned Advocate for the accused nos.1,6 and 7 has raised this point, the said aspect was argued generally. The learned Advocate for the accused nos.1,6 and 7 did not specifically point out the evidence of any particular witness which could be doubted on the ground that there was delay in recording his statement by the Investigating Officer. It is well settled that mere delay in examination of a witness does not render the case of the prosecution suspect. It depends upon the circumstances of the case and the nature of the offence under investigation. It would also depend upon the availability of information by which the Investigating Officer could reach the witness and examine him. It would also depend upon the explanation, if any, which the Investigating Officer may offer for the delay. Further, the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the Investigating Agency for the purpose of introducing a core of witness to falsely support the case of the prosecution. In the present case, no such circumstance was shown to exist. The evidence of 552

PW.141­PI Gosavi, PW.142­API Datir and PW.143­ACP Duraphe will show that they have explained the reasons for delay in recording the statement of witnesses about whom they were asked. Having said this, it needs to be noted that there is no material on the record from which it can be inferred that the statement of any particular witness was deliberately recorded late.

MOTIVE 825. According to the learned Advocate for the accused no.12, the case of the prosecution is doubtful as the prosecution has failed to prove the motive for the accused no.12­Chhota Rajan to commit the murder of J.Dey. The submission made by the learned Advocate for the accused no.12 cannot be accepted. Firstly, it needs to be noted that motive is not the ingredient of an offence u/s.300 of the IPC. It may also be stated that in each and every case it is not incumbent upon the prosecution to prove the motive for the crime. The proof of motive only adds to the weight and value of the evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will only be a corroborative piece of evidence. On the other hand, if the prosecution fails to prove its case on motive, its case cannot be thrown out only on that ground. The failure of the prosecution to prove the motive for the crime does not corrode the credibility of the witnesses. Having said this, it may be noted that the accused persons before this Court are also charged for the offences punishable under the provisions of the MCOC Act,1999. For the purposes of the MCOC Act,1999, it is incumbent upon the prosecution to prove the motive for the accused no.12­Chhota Rajan to get rid of J.Dey. Therefore, whether the accused no.12­Chhota Rajan had any motive to get rid of J.Dey will be discussed in detail while dealing with point nos.7 to 9 which relate the offences punishable under the MCOC Act,1999. However, at this 553 stage, it will be suffice to say that through the evidence of PW.76­Jitendra Dixit, PW.78­Sunilkumar Singh, PW.87­Nikhil Dixit and PW.100­Aariz Chandra, the prosecution has proved that the accused no.12­Chhota Rajan got J.Dey murdered as he was not happy with what J.Dey was writing against him and because J.Dey was working for ISI and Dawood. The murder of J.Dey was committed at the instance of the accused no.12­ Chhota Rajan as he was having doubt about the honesty of J.Dey.

ALIBI 826. It may be noted that in the statement of the accused no.5­Arun Dake which was recorded u/s.313(b) of Cr.P.C.,1973 he has taken a plea of alibi. The stand taken by the accused no.5­Arun Dake is quite surprising because during the course of recording of the evidence in this case no such stand was taken by him. Whenever an accused raises a plea of alibi, then the burden is upon him to prove that at the time of the incident he was neither present at the scene of the offence nor he participated in the crime. But, the accused no.5­Arun Dake has failed to show that at the time of the incident he was not present at the scene of the offence. The false plea of alibi is an additional circumstance in the chain of circumstances against the accused no.5­Arun Dake.

827. From the evidence on the record, it is clear that the prosecution has proved that the murder of J.Dey was committed in pursuance of a criminal conspiracy hatched by the accused no.12­Chhota Rajan. The evidence on the record clearly shows that the accused no.12­Chhota Rajan was not happy with J.Dey as he was writing articles against him which showed him in bad light and in a weaker position as compared to his arch rival Dawood Ibrahim. Not only that, the accused no.12­Chhota Rajan was convinced that J.Dey was working for Dawood Ibrahim and the ISI. 554

Therefore, on his instructions, the accused no.1­Rohee Tangappan Joseph @ Satish Kalya roped in the accused nos.2 to 7 for accomplishing the task. He also procured the revolver and cartridges through the accused no.9­ Deepak Sisodiya and the wanted accused no.1­Nayansingh Bista. The same revolver and cartridges were used for committing the murder of J.Dey. For accomplishing the task, the accused nos.1 to 7 kept a watch on the movements of the J.Dey. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya was in constant touch with the accused no.12­Chhota Rajan and ultimately, on 11/06/2011, in the afternoon, J.Dey was murdered.

828. In view of the above position, the accused nos.1 to 7 and the accused no.12­Chhota Rajan are liable for being convicted for the offence of criminal conspiracy and murder of J.Dey. In so far as the accused no.9­ Deepak Sisodiya is concerned, though he had no role to play in the murder of J.Dey but he was involved in criminal conspiracy which ultimately resulted in the murder of J.Dey. Therefore, is liable to be convicted for the offence of criminal conspiracy. In so far as the accused nos.10 & 11 are concerned, there is nothing to suggest that they were involved in the criminal conspiracy or the murder of J.Dey. Hence, they are required to be acquitted of all the charges against them. Hence, the point no.2 is answered in the affirmative as against the accused nos.1 to 7, 9 and 12 only, the point no.3 is answered in the affirmative as against the accused nos.1 to 7 and 12 only.

AS TO POINT NOS.4 AND 5 [OFFENCE UNDER THE ARMS ACT,1959] 829. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya is also charged of committing the offence punishable u/s.3 r/w. 25 and 27 of the Arms Act,1959. The prosecution has already proved the recovery of the 555 revolver (Article­249), cartridges (Article­250 colly) and the five empties (Article­269 colly) at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. The prosecution has also proved that the same revolver was used by the accused no.1­Rohee Tangappan Joseph @ Satish Kalya on 11/06/2011 to commit the murder of J.Dey. The accused no.1­ Rohee Tangappan Joseph @ Satish Kalya did not produce any evidence in his defence to show as to how he came into possession of the revolver (Article­249). Once it is proved that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was in possession of the revolver (Article­249) and cartridges (Article­250 colly), the onus was on him to show that he had the license to possess them. However, he failed to discharge the onus. Hence, it is proved that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was in possession of revolver (Article­249) and cartridges (Article­250 colly.) without any license. Therefore, the accused no.1­ Rohee Tangappan Joseph @ Satish Kalya has contravened the provisions of offence u/s.3(1) of the Arms Act,1959 which is punishable u/s.25(1­B) (a) of the Arms Act,1959 for which the sanction (Exh.252) was granted by PW.154­Sanctioning Authority. As the prosecution has also proved that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya had also used the said revolver for committing the murder of J.Dey, he has also contravened the provisions of section 5(1)(a) of the Arms Act,1959 which is punishable u/s.27 of the Arms Act,1959.

830. It may be noted that the sanction order under the Arms Act,1959 dated 16/09/2011 was marked as Exh.252 by the then learned Presiding Officer in view of the judgment of the Hon'ble Supreme Court of India in the case of State of M.P. V. Jiyalal reported in AIR 2010 SC 1451. In that case, the Hon'ble Supreme Court of India has held that examination of the Sanctioning Authority is not necessary to prove the sanction order 556 and that the defence can always test the contents of the sanction order by applying to the Court for cross­examination of the Sanctioning Authority. Accordingly, PW.154­Sanctioning Authority was cross­examined at length on behalf of the accused nos.1,6 and 7.

831. It was tried to be shown that PW.154­Sanctioning Authority had issued the sanction order with reference to the Crime no.57/2010 and not with reference to the Crime no.57/2011 i.e. the present case. The perusal of the sanction order (Exh.252) shows that there is a typographical error in writing the crime number in the sanction order (Exh.252). However, PW.154­Sanctioning Authority has clearly stated that she had issued the sanction order with reference to this case only. The perusal of the entire sanction order will also show that it refers to the present case only. The sanction order (Exh.252) is a detailed one and shows proper application of mind on the part of PW.154­Sanctioning Authority. In any case, under the Arms Act,1959, all that is required for sanction for prosecution u/s.39 of the said Act is that the person to be prosecuted was found to be in possession of the firearm, the date on which he was found to be in possession and the possession of the firearms was without a valid license. In this regard, reference may be made to the judgment in the case of Gunwantlal V. State of Madhya Pradesh reported in (1972) 2 SCC 194. In the said case, the Hon'ble Supreme Court of India has observed as under:

“6. …...... Under the Arms Act all that is required for sanction under Section 39 is, that the person to be prosecuted was found to be in possession of the firearm, the date or dates on which he was so found in possession and the possession of the firearm was without a valid licence. As all the elements are contained in the sanction in this case, it is not an illegal sanction nor can it be said that the charge travels beyond that sanction.” 557

832. The above judgment still holds the field and has been followed in the case of Mohd. Farooq Abdul Gafur & Anr. V. State of Maharashtra reported in (2010) 14 SCC 641.

833. It was then argued that the sanction order (Exh.252) was vitiated as all the details as mentioned in the ballistic reports are not recorded in the sanction order. The said submission cannot be accepted as there is no requirement under the law that the sanction order should contain all the details which are mentioned in the ballistic reports. Having said this, it needs to be noted that in the present case, all the necessary details are recorded in the sanction order (Exh.252).

834. It was next argued that the sanction order (Exh.252) was not valid as the revolver (Article­249) was not produced before PW.154­Sanctioning Authority at the time of issuing the sanction order (Exh.252). In this regard, reliance was placed upon the judgment in the case of Bapu V. State of Madhya Pradesh reported in 2004 (2) Crimes 609.

835. Section 39 of the Arms Act, 1959 deals with the grant of sanction. It reads as under:

"39. Previous sanction of the district magistrate necessary in certain cases.­ No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate."

836. From the above, it is clear that there is nothing in section 39 of the Arms Act,1959 which requires that at the time of grant of sanction, the weapon should also be produced before the District Magistrate for examination. It is the personal satisfaction of District Magistrate and it is 558 upto the District Magistrate to see as to what documents or objects are required for his/her personal satisfaction. No other provision of law was pointed out to this Court which mandates that the weapon must always be placed before the Sanctioning Authority. Therefore, mere non­production of weapon before PW.154­Sanctioning Authority is no ground to hold that she did not apply her mind to the facts of the case before granting the sanction.

837. In so far as the judgment in the case of Bapu (supra) is concerned, the non­production of the weapon before the Sanctioning Authority was not the sole ground on which the conviction and sentence of the accused therein was set aside. Further, in that case, the Sanctioning Authority was also not examined. Such is not the case here. In the present case, PW.154­ Sanctioning Authority was thoroughly cross­examined. Her evidence shows that she had issued the sanction order (Exh.252) after perusing the relevant papers and after applying her mind. Therefore, the said judgment is of no use to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya.

838. In view of the above, it is proved that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya has committed the offence punishable u/s.25(1­B)(a) and 27 of the of the Arms Act,1959. Hence, point nos.4 and 5 are answered in the affirmative.

AS TO POINT NO.6 [OFFENCE UNDER THE BOMBAY POLICE ACT,1951] 839. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya is also charged for committing the offence punishable u/s.37(1)(a) r/w. 135 of the Bombay Police Act,1951. As per the prosecution, on 11/06/2011, he was possessing the revolver (Article­249) in contravention of the prohibitory order issued on 21/05/2011 by the Office of the Commissioner 559 of Police, Mumbai. But the prosecution failed to prove the issuance of the prohibitory order. What was produced on the record was a printout of the order dated 21/05/2011. It did not bear the signature the Dy.Commissioner of Police (Operations), Brihan Mumbai or the seal of his office. Hence, it was marked as Article­X­92 for identification purposes. The prosecution failed to prove the prohibitory order in accordance with the law.

840. Let’s assume for a moment that the prosecution has proved the prohibitory order dated 21/05/2011. Then the next question which arises for consideration is whether it was executed in true letter and spirit i.e. whether it was advertised in such a manner so as to bring it to the notice of the general public. To prove the same, the prosecution examined PW.98­Sambhaji Jagdale and PW.101­Deepak Kamble who were attached to the Police Station, Powai at the relevant time.

841. PW.98­Sambhaji Shivaji Jagdale deposed that on 24/05/2009, he was on duty along with PW.101­Deepak Budhaji Kamble who was posted as the ASI (Mill Special). He deposed that the prohibitory order was executed by him and PW.101­Deepak Kamble. He deposed that the xerox copy of the said order was prepared and after making the necessary entry in the station diary, both of them went to various places within the jurisdiction of the Police Station, Powai and the Police Outposts and pasted the xerox copy of the order. He deposed that the general public was also informed about the order through megaphone. The evidence of PW.101­Deepak Kamble is also on the same lines.

842. The perusal of the evidence of PW.98­Sambhaji Jagdale and PW.101­Deepak Kamble shows that though both of them have deposed 560 that they executed the prohibitory order by pasting the xerox copy of the order at various places within the jurisdiction of the Police Station, Powai and the Police Outposts and that the general public was also informed about the order through megaphone, none of them was able to name even one public place where the said order was pasted. Even the station diary entry (Exh.872) which was made after the prohibitory order was executed is silent about the places where both of them had visited. Therefore, there is no material on the record to show that both of them had actually visited any place for informing the general public about the order.

843. In the case of Ramesh Mulchand Ramani V. State of Maharashtra reported in 1980 Bom.C.R. 822, the revision applicant therein was convicted and sentenced by the learned Trial Court for the offence u/s.135 read with section 37 of the Bombay (Maharashtra) Police Act, 1951. The appeal against the said judgment before the Session Court was partly allowed in the sense that the period of imprisonment and the amount of fine was reduced. The Hon'ble High Court allowed the revision application observing that there was no evidence to show that the prohibitory order was publicly promulgated as required u/s. 37 of the Bombay (Maharashtra) Police Act, 1951. The observations made by the Hon'ble High Court in the case of Ramesh Mulchand Ramani (supra) are squarely applicable to the facts of the present case in as much as in the present case also there is no evidence to show that the prohibitory order was publicly promulgated as required u/s.37 of the Bombay (Maharashtra) Police Act,1951. There is no evidence to show that this order was published in the Government Gazette. Hence, it has to be said that the prosecution has failed to prove that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya has committed the offence punishable u/s.37(1)(a) r/w. 135 of the Bombay (Maharashtra) Police Act,1951. 561

Therefore, point no.6 is answered in the negative.

AS TO POINT NOS.7 TO 9 [OFFENCES UNDER THE MCOC ACT,1999] 844. As per the prosecution the murder of J.Dey was as organized crime committed by the Organized Crime Syndicate headed by the accused no.12­Chhota Rajan and the other accused persons who are before this Court along with the wanted accused persons are the members of the said Organized Crime Syndicate.

845. From the evidence of PW.142­API Datir it has come on the record that on 01/07/2011, he had sent the proposal to the Joint Commissioner of Police, Mumbai for granting approval for invoking the provisions of the MCOC Act,1999 in the present case. Accordingly, the Joint Commissioner of Police, Mumbai granted the prior approval (Article­285) on 07/07/2011 and the provisions of the MCOC Act,1999 were invoked in this case. It may be noted that though the order granting prior approval which was issued by the Joint Commissioner of Police, Mumbai was marked as Article as he could not be examined due to his health issues the defence had cross­examined the other witnesses especially PW.149­CP Patnaik on this point. This shows that the defence did not dispute that the prior approval u/s.23(1)(a) of the MCOC Act,1999 was granted in this case. After the prior approval was granted, the investigation was handed over to PW.143­ACP Duraphe. PW.149­CP Patnaik issued the sanction order (Exh.250) on 13/10/2011 with reference to the first charge­sheet. He also issued the sanction order (Exh.251) against the accused no.11­ Ms.Jigna Vora on 18/02/2012 with reference to the first supplementary charge­sheet.

846. Before considering whether the murder of J.Dey was an organized 562 crime, it will be appropriate to have a look at certain definitions under the MCOC Act,1999 which are relevant for the purposes of the present case.

847. Section 2(1)(d) of the MCOC Act,1999 reads as under: “2(1)(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 charge­sheets have been field before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;

848. Section 2(1)(e) of the MCOC Act,1999 reads as under: “2(1)(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 person or promoting insurgency;

849. Section 2(1)(f) of the MCOC Act,1999 reads as under: “2(1)(f). "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate of gang indulge in activities of organised crime;”

850. From the joint reading of the above definitions, it can be said that in order to consider an offence as an organized crime, the following ingredients will have to be proved by the prosecution:

i) that there was a continuing unlawful activity; ii) that such a continuing unlawful activity was done by an individual, singly or jointly; iii) that such a continuing unlawful activity was either by a 563

member of an Organized Crime Syndicate or on behalf of such syndicate; iv) that there was use of violence or threat of violence or intimidation or coercion or other unlawful means; v) that such a continuing unlawful activity was done with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for the person who undertakes such an activity or any other person or promoting insurgency; vi) that such a continuing unlawful activity was prohibited by law for the time being in force; vii) that such a continuing unlawful activity was a cognizable offence punishable with imprisonment of three years or more; viii) that such a continuing unlawful activity was undertaken either singly or jointly, as a member of an Organized Crime Syndicate or on behalf of such syndicate; ix) that in respect of such a continuing unlawful activity more than one charge­sheet was filed before a competent Court; x) that the charge­sheet was filed within a preceding period of ten years; and xi) that the competent Courts had taken cognizance of such offences.

851. In the present case, the prosecution will have to show that the unlawful activity mentioned in the previous charge­sheets was undertaken by the person(s) as members of Organized Crime Syndicate or on behalf of such syndicate.

852. To prove that the unlawful activity was committed by the syndicate, the prosecution has relied upon two previous charge­sheets. The first charge­sheet (Exh.563) which was proved through the evidence of PW.20­ PSI Suresh Avad (He filed the said charge­sheet) arises out of C.R.No.07/2005 registered with Police Station, Bhandup for the offences 564 punishable u/s. 387, 342, 452, 427, 323, 147, 148, 149, 504, 506 (II) of the IPC and u/s.37(1), 135 of Mumbai (Maharashtra) Police Act,1951.The second charge­sheet (Exh.571) which was proved through the evidence of PW.21­Ramesh Pargunde (He filed the said charge­sheet) arises out of C.R. no.86/2005 registered with DCB CID for the offences punishable u/s.384, 385, 386, 387, 34 r/w 120­B r/w. 466, 467, 468, 471, 420 of the IPC, u/s.3(1)(ii), 3(2), 3(5) of MCOC Act,1999 and u/s. 12(1)(b) of the Passports Act, 1967.

853. It may be noted that though PW.20­PSI Suresh Avad was cross­ examined on behalf of the accused nos.2, 5 and 11 and though PW.21­ Ramesh Manohar Pargunde was cross­examined on behalf of the accused nos.1,6 and 7 surprisingly both these witnesses were not cross­examined on behalf of the accused no.12­Chhota Rajan who is alleged to the head of the Organized Crime Syndicate. That apart, both these witnesses were not cross­examined on the point of filing of the respective charge­sheets and taking cognizance of the offence by the Competent Court.

854. The perusal of the charge­sheet (Exh.563) shows that the provisions of the IPC and Arms Act,1959 were invoked whereas the perusal of the charge­sheet (Exh.571) shows that the provisions of the IPC and MCOC Act,1999 were invoked. It may be noted that in so far as the charge­sheet (Exh.563) is concerned, the sections under MCOC Act,1999 were not applied. But, it is not necessary that in the previous charge­sheet it should be specifically mentioned that the act was done by the accused as a member of an Organized Crime Syndicate or on behalf of such syndicate. Therefore, the said charge­sheet cannot be kept out of consideration as the perusal of the said charge­sheet will clearly show that the act was allegedly committed by the accused therein as members of Organized 565

Crime Syndicate or on behalf of such syndicate.

855. The charge­sheet (Exh.563) shows that in all there were sixteen accused persons in that case. Similarly, the charge­sheet (Exh.571) shows that in all there were seventeen accused persons in that case. From these two charge­sheets, it is clear that the offence therein was committed at the behest of the accused no.12­Chhota Rajan. In both the cases, the offences with which the accused persons were charged were punishable with imprisonment of 3 years or more. Both the charge­sheets were filed in the year 2005. The offence in the present case was committed on 11/06/2011. Thus, both the previous charge­sheets were filed within preceding period of ten years. In so far as the charge­sheet (Exh.563) is concerned, the last page of the charge­sheet itself show that the then learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai had taken cognizance of the offence on 10/05/2006. In so far as the second case is concerned, it was registered as MCOC Special Case no.25/2005. The certified copy of the charge­sheet (Exh.571) obtained from the copying branch of the Hon'ble High Court, Appellate Side, Bombay shows that Criminal Appeal no.517/2011 was filed by Vikrant Vishal Malhotra @ Viki Malhotra @ V.R. Chowhari, one of the accused in the charge­sheet (Exh.571). Hence, the MCOC Special Case no.25/2005 is decided and one of the accused therein has filed appeal against judgment of the Special Court. Therefore, it can be safely concluded that cognizance was taken by the MCOC Special Court as the judgment could be passed only after the cognizance of the offence was taken. As such, it is clear that in both the cases, the Competent Court had taken the cognizance of the offence mentioned therein.

856. At this stage, it may also be stated here that while giving answer to 566 question no.499 in his statement u/s.313(b) of Cr.P.C.,1973 the accused no.12­Chhota Rajan has admitted that till the year 1993 he was working with Dawood Ibrahim and after the Mumbai bomb blasts he separated from Dawood Ibrahim. This further reinforces the fact that he was indulging in unlawful activities even at that time.

857. In view of the above, it will have to be held that all the necessary ingredients to prove continuing unlawful activity as defined u/s.2(1)(d) of the MCOC Act,1999 are established in terms of the law.

858. It may be noted that in the previous charge­sheets (Exh.563 and 571) the accused no.12­Chhota Rajan is shown as wanted. On the basis of the above, the learned Advocate for the accused nos.1,6 and 7 submitted that there was no previous charge­sheet against the head of the syndicate and therefore, the provisions of MCOC Act,1999 cannot be invoked. As already discussed above, the offences mentioned in the previous charge­ sheets (Exh.563 and 571) were committed at the instance of the accused no.12­Chhota Rajan. All other ingredients of section 2(1)(d) of the MCOC Act,1999 are attracted. The cognizance of the offence was taken by the Competent Court. The accused no.12­Chhota Rajan was shown as wanted in the two previous charge­sheets as admittedly he was not in India at that time. Therefore, he could not be arrested and taken into custody. Hence, the objection cannot be sustained.

859. It may be noted that during cross­examination of the concerned witnesses it has been brought on record that in so far as the previous charge­sheets (Exh.563 & 571) are concerned, none of the present accused except the accused no.12­Chhota Rajan is arrayed as an accused in those cases. In the case of Govind Sakharam Ubhe V. State of Maharashtra 567 reported in 2009(3) Bom.C.R.(Cri) 144, the Hon'ble High Court has discussed in detail about unlawful activity referred to in MCOC Act,1999 and about the relevance of the previous charge­sheets to prove continuing unlawful activity. Paragraph nos.36,37,39 and 44 are reproduced below for ready reference :­

"36. The words 'in respect of which more than one charge­sheet have been filed' cannot go with the words 'a member of a crime syndicate' because in that case, these words would have read as 'in respect of whom more than one charge­sheet have been filed'.

37. But even otherwise, if all provisions are read together we reach the same conclusion. Section 2(1)(d) which defines 'con­ tinuing unlawful activity' sets down a period of 10 years within which more than one charge­sheet have to be filed. The mem­ bers of the crime syndicate operate either singly or jointly in commission of organized crime. They operate in different mod­ ules. A person may be a part of the module which jointly under­ takes an organized crime or he may singly as a member of the organized crime syndicate or on behalf of such syndicate under­ take an organized crime. In both the situations, the MCOCA can be applied. It is the membership of organized crime syndicate which makes a person liable under the MCOCA. This is evident from section 3(4) of the MCOCA which states that any person who is a member of an organized crime syndicate shall be pun­ ished 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 fine, subject to a minimum of fine of Rs.5 Lakhs.

The charge under the MCOCA ropes in a person who as a member of the organized crime syndicate commits organized crime i.e. acts of extortion by giving threats, etc. to gain eco­ nomic advantage or supremacy, as a member of the crime syndi­ cate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate. Therefore, if within a period of preceding ten years, one charge­sheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge­sheet can be taken against a member of the said crime syndicate for the purpose of applica­ tion of the MCOCA against him even if he is involved in one 568 case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndi­ cate. What is important is the nexus or the link of the person with 'organized crime syndicate.' The link with the 'organized crime syndicate' is the crux of the term 'continuing unlawful ac­ tivity.' If this link is not established, that person cannot be roped in.

39. The submission on behalf of the appellant is that even though all the four accused namely, A,B,C and D may be mem­ bers of the organized crime syndicate since against each of the accused not more than one charge­sheet is filed, it cannot be held that they are engaged in continuing unlawful activity as contemplated under Section 2(1)(d) of the MCOCA. Apart from the reasons which we have given hereinabove as to why such a construction is not possible, having regard to the object with which the MCOCA was enacted, namely to make special provi­ sions for prevention and control of organized crime syndicate and for coping with criminal activity by organized crime syndi­ cate, in our opinion, Section 2(1)(d) cannot be so construed. Such a construction will defeat the object of the MCOCA. What is contemplated under Section 2(1)(d) of the MCOCA is that ac­ tivities prohibited by law for the time being in force which are punishable as described therein have been undertaken either singly or jointly as a member of organized crime syndicate and in respect of which more than one charge­sheets have been filed. Stress is on the unlawful activities committed by the organized crime syndicate. Requirement of one or more charge­sheet is qua the unlawful activities of the organized crime syndicate.

44. Since in Asifkhan, the point which we are considering was squarely raised and answered, its ratio is attracted to the present case. In Deepak Bajaj V/s. State of Maharashtra and Anr. 2009(2) LJSOFT (SC) 36 ­­ 2008 AIR SCW 7788, which considering the precidential value of a judgment, the Supreme Court took a resume of several decisions rendered by it. The Supreme Court referred to its judgement in Ambica Quarry Works V/s. State of Gujarat and Ors. (1987) 1 SCC 213, where it has observed that the ratio of any decision must be understood in the background of the facts of that case and a case is only an authority for what is actually decides and not what logically follows from it. In the light of this, we are of the opinion that the words 'more than one charge­sheet' contained in Sec.2(1)(d) 569

refer to unlawful activities of the organized crime syndicate. Requirement of more than one charge­sheet is qua the unlawful activities of the organized crime syndicate and not qua individual member thereof."

860. In view of the above, it cannot be said that for invoking the provisions of the MCOC Act,1999 in the present case, all the accused in this case should be co­accused in previous charge­sheet. It may be noted that it is a common phenomenon that new members join existing Organized Crime Syndicate and commit offence. Under such circumstances, their involvement in previous charge­sheets will not be disclosed. However, section 3(4) of the MCOC Act,1999 provides for punishment to a person who is a member of an Organized Crime Syndicate. In that sense, merely because, accused nos.1 to 7 and 9 are not co­accused in previous charge­sheets, it cannot held that they are not the members of an Organized Crime Syndicate.

861. The learned Advocate for the accused nos.1,6 and 7 relied upon the judgments in the case of State of Maharashtra V. Shiva @ Shivaji Sonawane and others reported in (2016) 2 SCC 375 and in the case of Prafulla s/o. Uddhav Shende V. State of Maharashtra reported in 2009 ALL MR (Cri) 870 to contend that mere filing of the previous charge­ sheets was not sufficient to rope in the accused persons for the offences under the MCOC Act,1999 and that all the other requirements as contemplated by the definition of "continuing unlawful activity" must be fulfilled. This Court has gone through the above judgments. The said judgments are not applicable to the facts of the present case, as in the present case, the prosecution has proved the continuation of the 'continuing unlawful activity' by the Organized Crime Syndicate of the accused no.12­Chhota Rajan. 570

862. The next question which arises for consideration is whether the accused persons committed 'organised crime' as defined u/s.2(1)(e) of the MCOC Act,1999 and the same was committed by the 'Organised Crime Syndicate' as defined u/s.2(1)(f) of the MCOC Act,1999. It has already been held above that the prosecution has duly proved that the murder of J.Dey was committed in pursuance of a criminal conspiracy. The prosecution has also proved that the accused no.1­Rohee Tangappan Joseph @ Satish Kalya fired five bullets at J.Dey from his revolver at the instance of the accused no.12­Chhota Rajan. The prosecution has also proved that the accused nos.2 to 7 were consciously present with him at that time and they were actively assisted the accused no.1­Rohee Tangappan Joseph @ Satish Kalya in completing the task. The prosecution has also proved that the cartridges and the revolver used in the crime were supplied by the accused no.9­Deepak Sisodiya and the wanted accused no.1­Nayansingh Bista. The accused no.12­Chhota Rajan was the mastermind of this offence. Therefore, the continuance of the unlawful activity at the instance of the accused no.12­Chhota Rajan is proved. The accused no.12­Chhota Rajan is the head of the Organized Crime Syndicate and as such he is also a member of the syndicate along with the accused nos.1 to 7.

863. Evidently, the act of committing the murder of J.Dey was not done for any pecuniary gain or economic advantage. Therefore, the question is what was the advantage which the accused persons were seeking by committing the murder of J.Dey and whether it would be covered within the term “other advantage” as mentioned in section 2(1)(e) of the MCOC Act,1999?. 571

864. As stated earlier, the case of the prosecution is that J.Dey had written two articles (Exh.752 colly) which were published in the daily 'Mid­Day' dated 30/05/2011 and 02/06/2011 respectively which were against the interests of the accused no.12­Chhota Rajan. Also, J.Dey was in process of writing and publishing one book related to the accused no.12­Chhota Rajan and another book related to Dawood Ibrahim. As per the prosecution, these books were in the preliminary stages and portrayed the accused no.12­Chhota Rajan as a small time criminal and at the same time glorified Dawood Ibrahim which made the accused no.12­Chhota Rajan angry.

865. In so far as the writing and publication of the two books is concerned, the prosecution has relied upon the evidence of PW.41­Aakash Shah who was a Publisher and the evidence of PW.46­Ms.Poornima Swaminathan who was working with J.Dey at the relevant time. The prosecution has also relied upon e­mails (Exh.651 colly) which were exchanged between PW.46­Ms.Poornima Swaminathan and the publisher which contained a draft of some of the chapters of the books. The perusal of the contents of the e­mails shows that PW.46­Ms.Poornima Swaminathan had gathered information about the gangsters belonging to the gang of Dawood Ibrahim, his rivals from the gang of the accused no.12­Chhota Rajan, his childhood friends and several retired Police Officers regarding the rise of Dawood Ibrahim from a smuggler to a Don and then to a terrorist. The book was to focus on the qualities of Dawood Ibrahim. It was also to focus on the failed assassination plots of Dawood Ibrahim by the accused no.12­Chhota Rajan and his gang. PW.46­ Ms.Poornima Sawminathan has deposed that the proposed name of the book which was about the accused no.12­Chhota Rajan was “Chindi­rags to riches”. In cross­examination, it was brought on the record that the said 572 book was about the rise of small time offenders.

866. It is no doubt true that from the evidence of PW.46­Ms.Poornima Swaminathan it appears that while the book which was to be written about Dawood Ibrahim was to focus on his qualities, the book which was about the accused no.12­Chhota Rajan portrayed him as a small time offender. However, this Court is not inclined to rely upon the evidence of PW.46­Ms.Poornima Swaminathan for the reason that whatever she has deposed before this Court about the books and the exchange of e­mails with the publisher was in private domain. All the information about this was known either to her or the Publisher or J.Dey. There is nothing on the record to show that these e­mails were in public domain so as to enable the accused no.12­Chhota Rajan or any other person to access them. There is nothing on the record to show that the accused no.12­Chhota Rajan was aware that these books were going to be published or that he was aware about contents of these books. Hence, no value can be attached to the evidence of PW.41­Aakash Shah and PW.46­Ms.Poornima Swaminathan or to the e­mails (Exh.651 colly).

867. In so far as the newspaper articles (Exh.752 colly) are concerned, these news articles were in public domain and could be easily accessed by one and all. The accused no.12­Chhota Rajan was also aware about the news articles (Exh.752 colly.) The prosecution has proved this fact through the evidence of PW.78­Sunilkumar Singh to whom the accused no.12­Chhota Rajan had made the extra­judicial confession. Just to recall, during the phone call which the accused no.12­Chhota Rajan had made to him on 01/07/2011, while giving the reason for eliminating J.Dey, the accused no.12­Chhota Rajan had told PW.78­Sunilkumar Singh that J.Dey was tarnishing his image and in the articles dated 30/05/2011 and 573

02/06/2011 (Exh.752 colly.) J.Dey had written bad things about him and had created a picture as if he was an anti­national.

868. In view of the above position, it will be appropriate to independently consider the effect of the articles (Exh.752 colly.) which were proved by the prosecution through the evidence of PW.68­Sachin Kalbag who was the Executive Editor of the daily 'Mid­Day' at the relevant time. He was the person who had certified the news articles and furnished the same to the Police during the course of the investigation. The perusal of his evidence makes it clear that the defence has not challenged the fact that these articles were written by J.Dey and published in the daily 'Mid­ Day'. In fact, the learned Advocate for the accused no.12 has also relied upon these news articles along with the other news articles (Exh.584 colly at page 22, 69).

869. Before considering the news articles (Exh.752 colly), it needs to be clarified that this Court is not going into the genuineness of the contents of the news articles (Exh.752 colly.). But as the publication of these news articles is admitted by the learned Advocate for the accused no.12 and considering the fact that through the evidence of PW.78­Sunilkumar Singh, the prosecution has proved that the accused no.12­Chhota Rajan was aware about the publication of these two news articles, this Court is only trying to find out whether on their face value, these two news articles could have prompted the accused no.12­Chhota Rajan to draw the final straw and to get rid of J.Dey.

870. The perusal of the first news article dated 30/05/2011 titled “DID RAJAN PLAN HIT ON KASKAR?” will show that J.Dey had written this article with reference to the shootout which had taken place in the Bhendi 574

Bazar area. With reference to the accused no.12­Chhota Rajan following remarks were made in the news article:

(i) J.Dey had written that as per the sources ageing gangster accused no.12­Chhota Rajan may have plotted the shootout as a desperate attempt to seize a Lion's claim in the underworld pie.

(ii) Accused no.12­Chhota Rajan was making an effort to muscle his way back into Mumbai's underworld.

(iii) Accused no.12­Chhota Rajan did what very few gangster would attempt­take on the might of D company.

(iv) Accused no.12­Chhota Rajan was careful to spare the life of Dawood's sibling Iqbal, fearing a serious backlash.

(v) Quoting the accused no.12­Chhota Rajan it was stated that he did not have the power and clout of rival Dawood.

(vi) Quoting accused no.12­Chhota Rajan it was stated as follows :­ " I was provided with a chauffeur­driven car and a villa in Dubai. Mere bhi izzat thi. But I gave away every thing after the 1993 blast. I worked for the Indian Intelligence, but that was something of the past. Ab to dukh mein sukh mana rahe hain."

(vii) Accused no.12­Chhota Rajan was ageing and getting restive. He was burned with overseas expenses and there was very little protection money generated by his depleted gang members.

(viii) Accused no.12­Chhota Rajan was backing on his reserves in Kathmandu to relaunch himself in the upper echelon of Mumbai's underworld.

(ix) Quoting a source it was written that "But stirring the 575

Hornet's nest by opening fire at Iqbal's residence is a clear sign of desperation. It is like sending the message that I am still active."

(x) Other reasons for his desperation could be because most of the constructions work in North Mumbai and Navi Mumbai­his strongholds­were completed and he was now looking for greener pastures like SOBO and Borivali­Virar Belt and firing on Kaskar's residence was seeking mileage from the incident.

(xi) It was also stated that the accused no.12­Chhota Rajan was putting the Dawood siblings in Mumbai under continuous Police surveillance, something which most gangsters want to stay away from.

871. In the news article dated 02/06/2011 titled "FEARING D­GANG BACKLASH... RAJAN GANGSTERS OFF TO 'PILGRIMAGES'" J.Dey had made the following remarks with reference to the accused no.12­Chhota Rajan: (i) His gang members were missing from their hideouts in the city.

(ii) His gang members were going underground fearing back­ lash after the attack on Dawood Ibrahim's brother Iqbal Kaskar at Bhendi Bazar one month ago.

(iii) Members of his gang had shifted base to safer showers to avoid being targeted by shooters from the D­Company. Quoting the Joint Commissioner of Police (Crime), it was stated that "Glaring cases in point are a large number of Rajan Gangster operating from Dharavi and Tilaknagar, Chembur, who have gone on pilgrimages to avoid the D­Gang's warth".

(iv) Officers also believed that the point men of the accused no.12­Chhota Rajan in Mumbai, including Umed­ur Rehman and members of his faction were on the run and Police teams were trying to trap them.

872. From the point of view of a prudent mind the comments made by 576

J.Dey in the two news articles with reference to the accused no.12­Chhota Rajan may not have any value. A prudent mind may even ignore such comments. But for analyzing the effect of the above mentioned comments on a criminal mind, one will have to step out of the shoes of a prudent mind, enter into the shoes of a criminal mind and then analyze the effect of such comments. This is because a criminal mind acts differently than what a normal and prudent mind would do and rules of prudence sometimes fail while dealing with a scheming mind.

873. When the statements made by J.Dey through the newspaper articles (Exh.752 colly) are considered from the point of view of a criminal mind then certainly, these articles would anger a criminal mind. On reading such news, a criminal mind will feel that he was undervalued, demeaned and was shown to be very weak in comparison to his arch rival. Ego would have been hurt. In so far as the accused no.12­Chhota Rajan is concerned, it may be reiterated that prosecution has already proved that he was angry with J.Dey as J.Dey was giving credit to others for the work done by him and J.Dey was working for Dawood who was his arch rival. Prosecution has also proved that the accused no.12­Chhota Rajan suspected that J.Dey was working for Dawood Ibrahim. It cannot be forgotten that while in the Courts of law it is said that suspicion howsoever strong does not take place of proof, but in the underworld slightest of suspicion about one’s conduct can lead to his elimination. The articles written by J.Dey had the potential to affect the activities of the syndicate adversely as the accused no.12­ Chhota Rajan was shown to be not only in a very weak position but also desperate to show that he had a very strong hold in the underworld. Criminals and gangs thrive on the fear factor. In order to ensure their gang flourishes, they instill fear in the mind of others. The fear so created would further the cause of the syndicate. Therefore, if the accused no.12­ 577

Chhota Rajan was shown to be in a weak position, people would not have feared him. By committing murder of J.Dey who was a reputed Journalist a clear message was sent to the media and through the media to the general public & the rivals that the Organized Crime Syndicate of the accused no.12­Chhota Rajan was very much alive and kicking, that nobody should dare to say anything against him and if anybody dared to do so, then he would meet the same fate as J.Dey. Thus, the advantage which was sought to be taken was to establish fear in the minds of the people and to show that the Organized Crime Syndicate of the accused no.12­Chhota Rajan was still strong and active. This is one of the 'other advantage' which every Organized Crime Syndicate seeks so as to ensure that due to fear the public and the opponents are wary of the Organized Crime Syndicate. Therefore, in so far as the present case is concerned, it has to be said that the advantage which was sought to be achieved by the act of committing the murder of J.Dey is very much covered within the words “other advantage” as mentioned in section 2(1)(e) of the MCOC Act,1999.

874. At this stage, a reference may also be made to the newspaper articles (Exh.584 colly) which were written by J.Dey. It needs to be noted that these news articles were brought on the record on behalf of the accused no.12­Chhota Rajan through the evidence of PW.25­Shiva Devnath who was a Journalist in the daily 'Mid­Day' at the relevant time and was working under J.Dey. During the course of hearing, the learned Advocate for the accused no.12­Chhota Rajan relied upon these news articles to show that J.Dey was killed at the instance of Dawood Ibrahim or other bookies/ gangsters as he had written news articles against them. But no evidence was brought on the record to even prima facie show that J.Dey could have been murdered by somebody else. Additionally, it may 578 be stated that during the course of the evidence of PW.152­IO CBI, it has come on the record, that during the further investigation conducted by him, he had found that during the investigation conducted by the DCB CID, the involvement of the oil mafia, cable operators, bookies and punters was examined but nothing was found.

875. According to the learned Advocate for the accused no.2, as it is the case of the prosecution that the murder of J.Dey was committed at the instance of accused no.12­Chhota Rajan in order to show supremacy in underworld, the provisions of MCOC Act, 1999 are not attracted to the present case. In this regard, reliance was placed upon the judgment in the case of Niranjan Singh Karam Singh Punjabi, Advocate V. Jitendra Bhimraj Bijja and others reported in 1990 Cri.L.J. 1869. This Court has gone through the above mentioned judgment. The said judgment is not applicable to the facts of the present case. It is no doubt true that in the said judgment the allegation on the accused persons therein was that they had committed the murder of the deceased for gaining supremacy in the underworld. But in that case the accused persons therein were charged for committing offence u/s.3 of the TADA Act,1987 and not under the MCOC Act,1999. The TADA Act,1987 was enacted to make a special provision for the prevention of, and for coping with, terrorist and disruptive activities and for matter connected therewith or incidental thereto. On the other hand, the MCOC Act,1999 was enacted for prevention and control of and for coping with, criminal activity by Organized Crime Syndicate or gang and for matters connected therewith or incidental thereto. Thus, the object of the MCOC Act,1999 is different from the object of TADA Act,1987. Therefore, considering the object of the MCOC Act, 1999 the case of the prosecution is clearly covered under the provisions of the MCOC Act, 1999. 579

SANCTION FOR PROSECUTION UNDER THE MCOC ACT,1999. 876. As per section 23(2) of the MCOC Act,1999 no Special Court shall take cognizance of any offence under this Act without the previous sanction of the Police Officer not below the rank of Additional Director General of Police.

877. In the present case, the sanction orders (Exh.250 and 251) were marked as exhibits in view of the judgment of the Hon'ble Supreme Court of India in the case of Jiyalal (supra). However, the prosecution examined PW.149­CP Patnaik who was the Sanctioning Authority under the MCOC Act, 1999 in support of the sanction order.

878. PW.149­Sanctioning Authority deposed that for the purposes of passing the sanction order in the present matter he had received the papers of investigation from the Crime Branch which included the FIR, confessional statements, other statements, various panchanamas, seizure memorandums etc. He deposed that he went through all the papers and scrutinized them. He deposed that he also called the Investigating Officer and discussed the case and thereafter, as he was convinced that this was a fit case for granting sanction he issued the sanction order (Exh.250) dated 13/10/2011. He deposed that he also issued the sanction order (Exh.251) against one accused (Accused no.11­Ms.Jigna Vora) subsequently in the month of February 2012 and that time also, he had studied the proposal initiated by the Investigating Officer, scrutinized all the papers and the evidence.

879. In cross­examination on behalf of the accused nos.1,6 and 7, he stated that he did not put the date on the sanction order himself. He stated that the sanction order (Exh.250) did not bear the seal of his office. 580

He admitted that in the sanction order, the date of the incident or the date on which he had received the papers was not mentioned. He stated that the papers of investigation also did not bear the initials of the Jt. Commissioner of Police, the Addl. Commissioner of Police and the Dy. Commissioner of Police of having gone through them. He denied that the sanction orders were mechanically passed. He denied that there was no evidence to show that there was any conspiracy to commit the murder of J.Dey.

880. In cross­examination on behalf of the accused no.2, he stated that he was generally aware about the facts of the case before he had received the case papers for according sanction. He stated that he did not remember as to when for the first time he was appraised about the facts of this case. He stated that there may have been some discussion between him and the Jt. Commissioner of Police before he received the case papers. He stated that in the previous charge­sheets which were relied upon by him only the names of accused no.12­Chhota Rajan and accused no.1­ Rohee Tangapan Joseph @ Satish Kalya were shown and considered for the purposes of invoking the provisions of the MCOC Act,1999 in this case. He admitted that the other persons who were shown as the accused in this case were not concerned with those two charge­sheets. He stated that the accused no.12­Chhota Rajan was not charge­sheeted in the two cases (Exh.563 and Exh.571). He admitted that in the charge­sheets (Exh.563 and Exh.571) the name of accused no.1­Rohee Tangappan Joseph @ Satish Kalya was also not reflected as accused.

881. He stated that he did not come to any conclusion that the crime in the present case was committed to show supremacy in the underworld. He stated that it was his personal opinion that the crime was committed to 581 give a message to the rest of the world. He admitted that while holding the post of the Commissioner of Police he had issued the sanction orders under the MCOC Act,1999 in a number of cases. He admitted that before issuing the sanction order he used to always have discussion with the concerned Officer. He denied that the draft sanction order was provided to him along with the papers of investigation. He denied that the sanction which was accorded was not a proper sanction. He denied that he had relied upon a team of Officers and accorded the sanction orders or that he had accorded the sanctions blindly.

882. The learned Advocate for the accused nos.3,4 and 12 declined to cross­examination.

883. In cross­examination on behalf of the accused nos.5 and 11, he stated that before according sanction, he had gone through the case papers. He denied that he was occasionally inspecting the records of this case after the investigation was started. He stated that he did not remember the exact date on which the proposal for sanction was placed before him for the first time. He stated that before the papers were placed before him, the Dy. Commissioner of Police (Crime), Addl. Commissioner of Police (Crime) and the Jt. Commissioner of Police (Crime) had analyzed the case papers. He stated that the proposal contained all the documents on which he had relied. He stated that the papers were not sent to the legal department for opinion before he accorded the sanction. But he stated that he had orally consulted with the Law Officer prior to 13/10/2011. He stated that it was the usual practice of the department to consult the Law Officer to ensure that there was no legal infirmity in the process. He denied that the Law Officer had opined that the sanction was required to be granted in this case. 582

884. He stated that though he could not say as to what were the observations of the Commissioner of Police (Crime), Addl. Commissioner of Police (Crime) and Jt. Commissioner of Police (Crime) on the proposal they had all unanimously agreed that this was a fit case for according sanction. He admitted that the Jt. Commissioner of Police (Crime) had accorded the prior approval in this case. He stated that he had relied upon two prior cases of accused no.12­Chhota Rajan and two prior cases of accused no.1­Rohee Tangappan Joseph @ Satish Kalya for the purposes of granting sanction. He stated that in all he had relied upon four previous charge­sheets.

885. He stated that the details and the crime numbers of the previous charge­sheets were not mentioned in the sanction order. He denied that he did not recollect what was the material before him to show the complicity of accused no.11­Ms.Jigna Vora in this case. He stated that he had considered the conduct of accused no.11­Ms.Jigna Vora immediately prior to the incident i.e. she had gone on leave one or two days prior to the incident and had returned on the job after about 10 days of the incident, during that time she was not accessible, that she had written a news article suggesting that drug peddlers from U.K. could have been behind the murder of J.Dey. He denied that he passed both the sanction orders were issued mechanically. He denied that the sanction orders were already prepared and he only signed them.

886. Before deciding the validity of the sanction orders, it will be appropriate to have a look at the well settled principles which are required to be borne in mind while deciding the validity of a sanction order. The following are the principles in that regard: 583

(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the Sanctioning Authority after being satisfied that a case for sanction has been made out.

(b) The sanction order may expressly show that the Sanctioning Authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.

(c) The prosecution may prove by adducing the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at upon perusal of the material placed before him.

(d) Grant of sanction is only an administrative function and the Sanctioning Authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.

(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into by the Court as it does not sit in appeal over the sanction order.

(f) If the Sanctioning Authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.

(g) An order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.

887. Keeping in mind the aforesaid principles, it will have to be seen whether the sanction orders issued by PW.149­Sanctioning Authority withstand the scrutiny or not.

888. It is not necessary to analyze the sanction order (Exh.251) with respect to the accused no.11­Ms.Jigna Vora as the prosecution has failed to prove her involvement in this case. In so far as the sanction order 584

(Exh.250) is concerned, on careful reading of the evidence of PW.149­ Sanctioning Authority it is clear that after the prior approval u/s.23(1) of MCOC Act,1999 was granted by the Joint Commissioner of Police, Birhan Mumbai, the necessary papers for granting sanction under MCOC Act,1999 were placed before it. The sanction order (Exh.250) was issued by PW.149­Sanctioning Authority after going through the material which was placed before it and after verifying the facts from the concerned Officers. PW.149­Sanctioning Authority recorded its prima facie satisfaction about the commission of offence only after going through the record which was placed before it. It cannot be forgotten that material in the form of confessions of accused persons, statement of witnesses, previous charge­sheets etc. were before PW.149­Sanctioning Authority while granting such sanction. Section 114(e) of Evidence Act,1872 raises a presumption that the official acts have been regularly performed. The defence could not point out any material from which it can be gathered that the sanction order (Exh.250) was passed mechanically. Therefore, it has to be said that the sanction order (Exh.250) was valid.

889. According to the learned Advocate for the accused nos.1,6 and 7, the sanction order (Exh.250) is vitiated as it does not mention that any reliance was placed by PW.149­Sanctioning Authority on the previous charge­sheets. The said submission cannot be accepted as the perusal of the sanction order (Exh.250) clearly shows that on the basis of the material before it, PW.149­Sanctioning Authority was satisfied that more than one charge­sheet with respect to activities prohibited by law, punishable for imprisonment of three years or more were filed within the preceding 10 years against the accused no.12­Chhota Rajan and that the cognizance of those offences was taken by the competent Court. Further, it is not the requirement of the law that all the details of the previous 585 charge­sheets should be mentioned in the sanction order. In fact, it needs to be stated that though this point has been raised in the written notes of arguments, PW.149­Sanctioning Authority was not asked any questions on this point during his cross­examination by the learned Advocate for the accused nos.1,6 and 7. On the contrary, during cross­examination by the learned Advocate for the accused nos.5 and 11 it was brought on the record that while considering the proposal for grant of sanction he had relied upon four previous charge­sheets. As such, the argument made by the learned Advocate for the accused nos.1,6 and 7 cannot be accepted.

PRESUMPTIONS UNDER THE MCOC ACT,1999. 890. The prosecution has proved that the provisions of the MCOC Act,1999 were rightly invoked in the present case. Therefore, the presumptions u/s. 17 and 22 of the MCOC Act,1999 come into play. For ready reference, they are reproduced below:

“17. Special Rules of evidence. (1)......

(2) Where it is proved that any person involved in an organised crime or any person on his behalf is or has at any time been in possession of movable or immovable property which he cannot satisfactorily account for, the Special Court shall, unless contrary is proved, presume that such property or pecuniary resources have been acquired or derived by his illegal activities.

(3)......

22. Presumption as to offences under section 3.­(1) In a prosecution for an offence of organised crime punishable under section 3, if it is proved­

(a) that unlawful arms and other material including documents or papers were recovered from the possession of the accused and there is reason to believe that such unlawful arms and other materials including documents or papers were used in the 586

commission of such offence; or

(b) that by the evidence of an expert, the finger prints of the accused were found at the site of the offence or on anything including unlawful arms and other material including documents or papers and vehicle used in connection with the commission of such offence,

the Special court shall presume, unless the contrary is proved, that the accused had committed such offence.

(2) In a prosecution for an offence of organised crime punishable under sub­section (2) of section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence of organised crime, the Special Court shall presume, unless the contrary is proved, that such person has committed the offence under the said sub­section (2).”

891. In the present case, the prosecution has proved that the murder of J.Dey was an organized crime. The prosecution has also proved recovery of the revolvers and cartridges from the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. The prosecution has also proved the recovery of the Qualis vehicle, three motorcycles, various mobile phones and SIM cards from the accused nos.1,2,4 to 7 and 12. All these articles are certainly movable property. None of the motorcycles was registered in the name of any of the accused. Some of the mobile phones and SIM cards which were recovered from the accused persons were also not registered in their names. None of the accused persons has proved that they were in possession of the above articles legally. Therefore, the presumption u/s.17(2) of the MCOC Act,1999 that they obtained the possession of the same by their illegal activities for using them in committing the murder of J.Dey will apply in favour of the prosecution. The accused persons were entitled to rebut the said presumption by adducing the necessary evidence 587 but unfortunately instead of doing so, they chose to be in denial mode.

892. As stated earlier, the prosecution has proved that the revolver recovered at the instance of the accused no.1­Rohee Tangappan Joseph @ Satish Kalya was used in committing the murder of J.Dey. Therefore, the presumption u/s.22(1)(a) of the MCOC Act,1999 will operate in favour of the prosecution. The accused no.1­Rohee Tangappan Joseph @ Satish Kalya was entitled to rebut the said presumption by adducing the necessary evidence but unfortunately instead of doing so, he chose to be in denial mode. Hence, it has to be presumed that he was involved in committing the murder of J.Dey.

893. In view of the above, it is clear that the prosecution has proved that the provisions of the MCOC Act, 1999 were rightly applied in this case. Therefore, the confession made by the accused no.9­Deepak Sisodiya once again comes into picture. He has abetted the offence as defined u/s 2(1) (a) of the MCOC Act,1999 r/w section 107 and 108 of the IPC in as much as he had rendered assistance in the form of supplying cartridges to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya having the actual knowledge that he was engaged in assisting the Organized Crime Syndicate of the accused no.12­Chhota Rajan. He was also consciously present when the wanted accused no.1­Nayansingh Bista gave two revolvers to the accused no.1­Rohee Tangappan Joseph @ Satish Kalya. One of the revolver and the cartridges were used for the committing the murder of J.Dey. Therefore, he is liable to punished for the offence u/s 3(2) and 3(4) of the MCOC Act,1999 for abetting, knowingly facilitating the commission of the organized crime, for doing act preparatory to the organized crime and for being a member of the Organized Crime Syndicate. 588

894. In view of the above, it is clear that the prosecution has proved the involvement of the accused nos.1 to 7, 9 and 12 in the conspiracy. The prosecution has also proved the involvement of accused nos.1 to 7 and 12 in the conspiracy and murder of J.Dey beyond all reasonable doubts. The prosecution has also proved that the murder of J.Dey was an organized crime committed by the Organized Crime Syndicate of the accused no.12­ Chhota Rajan. The cross­examination of the witnesses was conducted in such a manner to suggest that a particular thing was “possible” whereas the defence was required to show that a particular thing was “probable”. The words “possible” and “probable” both contain 8 alphabets. But the similarity ends there. Under the Indian law, once the prosecution has led credible evidence in support of its case, the defence has to prove its defence on preponderance of “probabilities” and not on “possibilities” as anything is possible in this world. The defence has indulged in “Hit and run” kind of cross­examination which was of no use to the defence in any manner. Hence, point no.7 is answered in the affirmative as against the accused nos.1 to 7 & 12 only and point nos.8 and 9 are answered in the affirmative as against the accused nos.1 to 7, 9 and 12 only.

AS TO POINT NO.10 [OFFENCE U/S.201 IPC] 895. As per the prosecution, after the incident, the accused nos.1 to 5, 9 and 10 destroyed some of the SIM cards and mobile phones which were used for communicating with each other for the purposes of accomplishing the task of committing the murder of J.Dey. The claim of prosecution that these accused persons destroyed the SIM cards and mobile phones is only on the basis that the prosecution could not recover the said SIM cards and mobile phones. There is absolutely nothing on the record to show that the Investigating Officers of this case made any effort to find out whether said 589

SIM cards and mobile phones are still working. Merely because a particular SIM card or mobile phone is not recovered, it cannot be automatically said that they were destroyed. Efforts made by Investigating Officers to trace out such SIM cards and the mobile phones must be placed on the record before concluding that a particular article/evidence is destroyed. Hence, it has to said that the prosecution has failed to prove that the accused nos.1 to 5, 9 and 10 have committed an offence u/s.201 of the IPC. Therefore, point no.10 is answered in the negative.

896. The judgment is stopped here for hearing the accused persons on the point of sentence.

(S.S. ADKAR) Date : 02/05/2018 Exclusive Special Court constituted for the cases under MCOCA/TADA/POTA AND OTHER SESSIONS CASES Place : Mumbai against the accused­Rajendra Sadashiv Nikalje @ Chhota Rajan

HEARING ON THE POINT OF SENTENCE 897. The accused nos.1 to 7, 9 & 12 and their respective Advocates are heard on the point of sentence.

898. On behalf of the accused nos.1,6 and 7, it was submitted that they have a family to maintain and there is nobody to take care of their family. Hence, it was prayed that minimum sentence may be imposed on the accused nos.1,6 and 7.

899. On behalf of the accused no.2, it was submitted that there is no direct evidence against him, he belongs to a good family, he has no criminal background, that he is suffering from HIV, that his mother is handicapped and that there is nobody to take care of her. Hence, it was 590 prayed that minimum sentence may be imposed upon the accused no.2.

900. On behalf of the accused nos.3 and 4, it was submitted that they are the sole bread earners, they are of young age i.e. the accused no.3 is aged 33 years and the accused no.4 is aged 42 years, that the father of the accused no.4 is handicapped, his sister is also suffering from cancer and he has to take care of his family. Hence, it was prayed that minimum sentence may be imposed upon the accused nos.3 and 4.

901. On behalf of the accused no.5, it was submitted that he is only 35 years old, his son is 8 years old, he comes from a poor family, that his mother is old and he has to take care of her. It was prayed that as this is not a rarest of rare case, death penalty may not be imposed.

902. On behalf of the accused no.9, it was submitted that he is 46 years old, partially handicapped, his father is 75 years old, his child is 10 years old and he has to take care of them. It was also submitted that the accused no.9 was not involved in the murder of J.Dey. Hence, it was prayed that minimum sentence may be imposed.

903. On behalf of the accused no.12, it was submitted that he has three daughters and he has to take care of them. It was also submitted that he is suffering from various ailments and that he is victim of circumstances. Hence, it was prayed that minimum sentence may be imposed as this is not the rarest of rare case for imposing death penalty.

904. The learned SPP submitted that considering the manner in which the offence was committed the accused persons are required to be dealt with firmly. He submitted that the Press is the fourth pillar of democracy 591 and J.Dey was an eminent Journalist. He submitted that the murder of J.Dey was nothing but an attack on a fourth pillar of democracy and that death penalty should be imposed upon the accused persons. He also submitted that considering the object of the MCOC Act,1999 maximum fine may be imposed upon the accused persons and a substantial part of the same be awarded to the sister of J.Dey who is mentally retarded and who was solely dependent upon J.Dey for her survival.

905. This Court has considered the submissions made on behalf of the accused persons and on behalf of the prosecution.

906. For the offence punishable u/s. 302 r/w 120­B of the IPC and for the offence punishable u/s. 3(1)(i) of the MCOC Act,1999, the minimum sentence which can be imposed is imprisonment for life with fine. For the offence punishable u/s. 3(2) & 3(4) of the MCOC Act,1999, the minimum sentence which can be imposed is imprisonment for five years which can be extended to imprisonment for life with fine of minimum Rs.5,00,000/­. The accused no.1 is also convicted for the offence punishable u/s.25(1­B) of the Arms Act,1959. For the said offence, the minimum sentence which can be imposed is imprisonment for one year which can be extended to three years with fine. The accused accused no.1 is also convicted for the offence punishable u/s.27 of the Arms Act,1959. For the said offence, the minimum sentence which can be imposed is imprisonment for three years which can be extended to seven years with fine.

907. The prosecution has proved that the murder of J.Dey was committed in a well planned manner and in pursuance of criminal conspiracy. It was an organized crime committed by the Organized Crime Syndicate of the accused no.12­Chhota Rajan. Five bullets were fired at 592

J.Dey. The murder of J.Dey was a cold blooded act. The accused nos.1,2,4,6,7,9 and 12 have criminal antecedents. In so far as the accused no.2 is concerned, it was submitted that he was suffering from HIV. But, that is no ground to show leniency in view of the nature of the offence and the manner in which it was committed. In so far as the accused no.9 is concerned, it is no doubt true that he was not aware that the revolver and the cartridges which were procured through him were going to be used for committing the murder of J.Dey. But he was fully aware as to for what purposes such weapons are used. From the evidence on the record, it is also clear that he was having close connection with the accused no.12­ Chhota Rajan. He was in contact with him even after the incident. He was also knowing the accused no.1 quite well. The mere fact that he is using a prosthetic foot (Jaipur foot) in his right leg is no ground to show leniency. From the record, it is seen that no previous case was registered against the accused no.3. However, that by itself cannot be a ground for showing leniency considering the fact that he was actively involved in the conspiracy and murder. The offence committed by the accused nos.1 to 7, 9 and 12 is very serious though it does not fall in the category of the rarest of rare case so as to invite death penalty. At the same time, the reasons given by the accused nos.1 to 7,9 and 12 for showing leniency are common. The accused nos.1 to 7,9 and 12 ought to have thought about the consequences of their acts before attempting it. As stated earlier, this is not a case where death penalty needs to be imposed. However, considering the nature of the offence, the manner in which it was committed and the purpose for which it was committed, the following order is passed: ORDER 1) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, accused no.2­Anil Bhanudas Waghmode, accused no.3­Abhijit 593

Kashinath Shinde, accused no.4­Nilesh Narayan Shedge @ Bablu, accused no.5­Arun Janardan Dake, accused no.6­Mangesh Damodar Aagvane @ Mangya, accused no.7­Sachin Suresh Gaikwad, accused no.9­Deepak Dalvirsingh Sisodiya and accused no.12­Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are convicted as per the 235(2) of Cr.P.C.1973, for the offence punishable u/s.120­B of the IPC (criminal conspiracy to commit murder) and they are sentenced to suffer rigorous imprisonment for life with fine of Rs.1,00,000/­ (Rupees One Lakh only) each, in default, to suffer simple imprisonment for three years each.

2) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, accused no.2­Anil Bhanudas Waghmode, accused no.3­Abhijit Kashinath Shinde, accused no.4­Nilesh Narayan Shedge @ Bablu, accused no.5­Arun Janardan Dake, accused no.6­Mangesh Damodar Aagvane @ Mangya, accused no.7­Sachin Suresh Gaikwad and accused no.12­ Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are convicted as per section 235(2) of Cr.P.C.,1973 for the offence punishable u/s.302 r/w.120­B of the IPC and they are sentenced to suffer rigorous imprisonment for life with fine of Rs.1,00,000/­ (Rupees One Lakh only) each, in default, to suffer simple imprisonment for three years each.

3) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, accused no.2­Anil Bhanudas Waghmode, accused no.3­Abhijit Kashinath Shinde, accused no.4­Nilesh Narayan Shedge @ Bablu, accused no.5­Arun Janardan Dake, accused no.6­Mangesh Damodar Aagvane @ Mangya, accused no.7­Sachin Suresh Gaikwad and accused no.12­ Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are convicted as per section 235(2) of Cr.P.C.,1973 for the offence punishable u/s.3(1)(i) of the MCOC Act,1999 and they are sentenced to suffer 594 rigorous imprisonment for life with fine of Rs.10,00,000/­ (Rupees Ten Lakhs only) each, in default, to suffer simple imprisonment for five years each.

4) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, accused no.2­Anil Bhanudas Waghmode, accused no.3­Abhijit Kashinath Shinde, accused no.4­Nilesh Narayan Shedge @ Bablu, accused no.5­Arun Janardan Dake, accused no.6­Mangesh Damodar Aagvane @ Mangya, accused no.7­Sachin Suresh Gaikwad, accused no.9­Deepak Dalvirsingh Sisodiya and accused no.12­Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are convicted as per section 235(2) of Cr.P.C.,1973 for the offence punishable u/s. 3(2) of the MCOC Act, 1999 and they are sentenced to suffer rigorous imprisonment for life with fine of Rs.10,00,000/­ (Rupees Ten Lakhs Only) each, in default, to suffer simple imprisonment for five years each.

5) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, accused no.2­Anil Bhanudas Waghmode, accused no.3­Abhijit Kashinath Shinde, accused no.4­Nilesh Narayan Shedge @ Bablu, accused no.5­Arun Janardan Dake, accused no.6­Mangesh Damodar Aagvane @ Mangya, accused no.7­Sachin Suresh Gaikwad, accused no.9­Deepak Dalvirsingh Sisodiya and accused no.12­Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are convicted as per section 235(2) of Cr.P.C.,1973 for the offence punishable u/s. 3(4) of the MCOC Act, 1999 and they are sentenced to suffer rigorous imprisonment for life with fine of Rs.5,00,000/­ (Rupees Five Lakhs Only) each, in default, to suffer simple imprisonment for three years each.

6) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya 595

@ Sir is also convicted as per section 235(2) of Cr.P.C.,1973 for the offence u/s.3 punishable u/s.25 (1­B) of the Arms Act,1959 and he is sentenced to suffer rigorous imprisonment for three years with fine of Rs.15,000/­ (Rupees Fifteen Thousand only), in default, to suffer simple imprisonment for six months.

7) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir is also convicted as per section 235(2) of Cr.P.C.,1973 for the offence u/s.5 punishable u/s. 27 of the Arms Act,1959 and he is sentenced to suffer rigorous imprisonment for seven years with fine of Rs.20,000/­ (Rupees Twenty Thousand only), in default, to suffer simple imprisonment for one year.

8) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir is acquitted as per section 235(1) of Cr.P.C.,1973 for the offence punishable u/s.37(1)(a) r/w. 135 of the Bombay (Maharashtra) Police Act,1951.

9) The accused no.9­Deepak Sisodiya is acquitted as per the provision u/s.235(1) of Cr.P.C.,1973 for the offence punishable u/s.302 of the IPC and section 3(1)(i) of the MCOC Act,1999.

10) The accused no.10­Paulson Joseph Palitara and the accused no.11­ Ms. Jigna Jitendra Vora are acquitted as per the provision u/s.235(1) of Cr.P.C.,1973 for the offence punishable u/s. 120­B, 302 of the IPC r/w. 3(1)(i), 3(2), 3(4) of the MCOC Act, 1999.

11) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, accused no.2­Anil Bhanudas Waghmode, accused no.3­Abhijit 596

Kashinath Shinde, accused no.4­Nilesh Narayan Shedge @ Bablu, accused no.5­Arun Janardan Dake, accused no.9­Deepak Dalvirsingh Sisodiya and accused no.10­Paulson Joseph Palitara are acquitted as per the provision u/s.235(1) of Cr.P.C.,1973 for the offence punishable u/s.201 of the IPC.

12) The accused no.9­Deepak Dalvirsingh Sisodiya is on bail. His bail bond stands canceled and his surety stands discharged. He is taken into custody.

13) The accused no.10­Paulson Joseph Palitara and the accused no.11­ Ms. Jigna Jitendra Vora shall execute P.R. Bond of Rs.50,000/­ (Rupees Fifty Thousand only) each with one surety in the like amount as provided u/s.437­A of Cr.P.C.,1973 to appear before the Hon'ble High Court as and when such Court issues notice in respect of any appeal or petition that may be filed against the judgment of this Court. The bail bonds shall be in force for a period of six months.

14) The substantive sentences imposed on the accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, accused no.2­Anil Bhanudas Waghmode, accused no.3­Abhijit Kashinath Shinde, accused no.4­Nilesh Narayan Shedge @ Bablu, accused no.5­Arun Janardan Dake, accused no.6­Mangesh Damodar Aagvane @ Mangya, accused no.7­Sachin Suresh Gaikwad, accused no.9­Deepak Dalvirsingh Sisodiya and accused no.12­Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir shall run concurrently.

15) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, accused no.2­Anil Bhanudas Waghmode, accused no.3­Abhijit Kashinath Shinde, accused no.4­Nilesh Narayan Shedge @ Bablu, accused 597 no.5­Arun Janardan Dake, accused no.6­Mangesh Damodar Aagvane @ Mangya, accused no.7­Sachin Suresh Gaikwad, accused no.9­Deepak Dalvirsingh Sisodiya and accused no.12­Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir shall be entitled for set off u/s.428 of Cr.P.C, 1973 for the period of detention already undergone by them during the investigation/trial of this case, against the substantive sentence awarded.

16) An amount of Rs.5,00,000/­ (Rupees Five Lakhs Only) shall be paid to Ms.Leena d/o Nipendra Kumar Dey who is the real sister of deceased J.Dey, from the amount of fine towards compensation.

17) The muddemal Articles namely the Station diaries (Articles­X­57, Article­220,221,222 and 223) be returned to the concerned Police Station.

18) The laptop (Article­292) belonging to Advocate Shri S.M.Deshpande be returned to him. However, before returning the said laptop, the Shirestedar of this Court shall copy the the video clip namely 'India today commissioner press conference' (Exh.1494) having duration of 09:53 (Nine minutes and fifty three seconds) and size of 44.0 MB located in the sub­folder­ 'j.dey News report' in folder­'j.dey case folder' stored and saved in (Location C:\Users\Santosh Deshpande\Desktop) in the laptop (Article­ 292) in a pen drive and then seal the said pen drive. The pen drive shall be kept with the other muddemal of this case.

19) The currency notes (Articles­63 colly, 71, 83 colly, 121, 129 colly and 207) be confiscated and deposited in the Treasury of the Government of Maharashtra. 598

20) The other muddemal Articles be preserved for the trial against the wanted accused no.1­Nayansigh Bista and the wanted accused no.2­Ravi Ram Rattesar, on their arrest.

21) The copy of the judgment be furnished to all the accused persons free of cost. Considering the fact that the judgment is bulky and some time may be consumed in preparing the hard copies of the judgment, on the request of the learned Advocates for the defence the copy of this judgment be provided to them in PDF format today itself. Hard copies be given to the accused persons tomorrow.

22) The accused no.1­Rohee Tangappan Joseph @ Rohi @ Satish Kalya @ Sir, accused no.2­Anil Bhanudas Waghmode, accused no.3­Abhijit Kashinath Shinde, accused no.4­Nilesh Narayan Shedge @ Bablu, accused no.5­Arun Janardan Dake, accused no.6­Mangesh Damodar Aagvane @ Mangya, accused no.7­Sachin Suresh Gaikwad, accused no.9­Deepak Dalvirsingh Sisodiya and accused no.12­Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are made aware about their right to file appeal against this Judgment.

(S.S. ADKAR) Date : 02/05/2018 Exclusive Special Court constituted for the cases under MCOCA/TADA/POTA AND OTHER SESSIONS CASES Place : Mumbai against the accused­Rajendra Sadashiv Nikalje @ Chhota Rajan

Dictated on : 04/04/2018, 07/04/2018, 09/04/2018, 10/04/2018, 13/04/2018, 16/04/2018, 17/04/2018, 18/04/2018, 19/04/2018, 20/04/2018, 21/04/2018, 23/04/2018, 24/04/2018, 25/04/2018 & 26/04/2018.

Transcribed on : 04/04/2018, 07/04/2018, 09/04/2018, 10/04/2018, 13/04/2018, 16/04/2018, 17/04/2018, 18/04/2018, 19/04/2018, 20/04/2018, 21/04/2018, 23/04/2018, 24/04/2018, 25/04/2018 & 26/04/2018.

Signed on : 02/05/2018. 599

"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER"

DATE : 02/05/2018, AT 05:00 P.M. MAHESH KESHAV SAKHARKAR STENOGRAPHER (S.G.) UPLOAD DATE AND TIME NAME OF STENOGRAPHER

Name of the Judge (with Court no.) : Shri S.S. Adkar. Court no.57 Date of pronouncement of judgment/order : 02/05/2018. Judgment/order signed by the P.O. on : 02/05/2018. Judgment/order uploaded on : 02/05/2018, AT 05:00 P.M.