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In the High Court of Judicature at Bombay Criminal Appellate Jurisdiction

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In the High Court of Judicature at Bombay Criminal Appellate Jurisdiction apeal878.1006.02.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 878 OF 2002 Abdul Rauf Dawood Merchant. Indian, Aged 31 years, R/o. Wafa Complex, “B” Wing, Amrutnagar, Mumbra, Dist.Thane. (Presently lodged at Pune central prison.) ... Appellant. V/s. State of Maharashtra. (D.N. Nagar Police Station C.R. NO. 572/1998) … Respondent. Mr. Satish Maneshinde a/w. Ms. Deepali Thakkar, advocate for appellant in Cr. Appeal No. 878 of 2002. Ms. Madhavi H. Mhatre a/w. Ms. P.P. Shinde, APP for the State. ALONGWITH CRIMINAL APPEAL NO. 1006 OF 2002 The State of Maharashtra. ... Appellant. v/s. 1. Ramesh Sadhuram Ta!ran# A$e 41 years, 1st floor' M!)ta B( $. 10th Roa ' +har (West-' M!mbai 2. A. !( Rashi Dawoo Mer1hant. A$e 28 years, Waf"a Comp(e4' 5/6 W#"$, Gro!" F(oor, R. No. 1, M!mbra, … Respondents. /#str#1t Tha"e. ------------------- Ms. Madhav# H. Mhatre a/0. Ms. P.P. Shi" e' APP for the A33e((ant9 State. Ta(0a()ar 1 of 69 ::: Uploaded on - 01/07/2021 ::: Downloaded on - 01/07/2021 16:17:11 ::: apeal878.1006.02.doc Mr. A3oor7 Si"$h, ad7o1ate for Respo" e"t No. 1 #" A33eal No. 1006/2002. Mr. Sat#sh Maneshi" e a/0. Ms. Dee3al# Thak)ar' ad7o1ate for Respo" e"t No. 2 CORAM : SMT. SADHANA S. JADHAV & N.R. BORKAR, JJ. RESER:ED ON ; MARCH 3, 2021. PRONO=NCED ON ; >=LY 1, 2021. JUDGMENT :(PER SMT. SADHANA S. JADHAV,J) CRIMINAL APPEAL NO. 878 OF 2002 1 This appeal impugns the Judgment and Order dated 29th April, 2002 passed by the Additional Sessions Judge, Gr. Mumbai in Sessions Case Nos. 15/1998 a/w. 448/1998 a/w. 1473/1998 a/w. 18/2000 a/w. 365/2001, thereby convicting and sentencing the Accused No.19-appellant Mohd. Rauf Dawood Merchant as under : (i) For the offence punishable under section 302 of Indian Penal Code to suffer imprisonment for life and to pay a fine of Rs. 5,000/- I.d. to suffer S.I. for 3 months; (ii) For the offence punishable under section 307 of the Indian Penal Code to suffer imprisonment for life; (iii) For the offence punishable under section 392 of the Indian Penal Code to suffer R.I. for a period of 7 years and to pay a fine of Rs. 1,000/- I.d. to suffer S.I. for one month. Ta(0a()ar 2 of 69 ::: Uploaded on - 01/07/2021 ::: Downloaded on - 01/07/2021 16:17:11 ::: apeal878.1006.02.doc (iv) For the offence punishable under section 397 of the Indian Penal Code to suffer R.I. for a period of 7 years and to pay fine of Rs. 1,000/- I.d. to suffer S.I. for one month. (v) For the offence punishable under section 27 of the Arms Act and is sentenced to suffer R.I. for 3 years and to pay fine of Rs. 1,000/- I.d. to suffer S.I. for one month. 2 This appeal pertains to the murder of Gulshan Kumar Dua, the Managing Director of Super Cassette Industries, who was in the business of purchase of rights of audio cassettes of Hindi movies and private albums. He was the founder of T-Series Company and producer of several movies. He was shot dead in broad daylight. On 12th August, 1997 the deity SHIVA received the last offerings from his pious disciple Gulshan Kumar Dua, the deceased. On that day at 10 a.m., he visited Shiv Mandir, situated at Jeet Nagar, Andheri(W) as part of his daily routine. He had sponsored the renovation of the said temple in the year 1976. Ever since then, he was visiting the temple twice a day – in the morning at about 10 a.m. and in the evening at about 6 p.m. On that day, as usual his driver Rooplal(P.W.7) had driven him to the temple in his Red Opel Car. Ramchandra Lavangare (P.W.1) the President of the Shiv Temple Management Association had also attended him as usual. He offered prayers for about 15 minutes, made the offerings and was returning home. He was proceeding towards his car, which was parked facing towards Navkiran Road at a distance of just 6 to 7 Ta(0a()ar 3 of 69 ::: Uploaded on - 01/07/2021 ::: Downloaded on - 01/07/2021 16:17:11 ::: apeal878.1006.02.doc feet across the temple. He was followed by his driver P.W. 7 and P.W. 1 as usual. When they reached the car, the driver had crossed the other side of the car to take the driver’s seat and therefore, P.W. 1 was walking a few steps behind Gulshan Kumar. When Gulshan Kumar was opening the door of the car, suddenly a person waiting in ambush, touched his back with a pistol and fired a battery of bullets in a fraction of a second. Taken by surprise, Gulshan Kumar turned back only to receive more bullets on his chest. At that juncture, when he was about to collapse, another assailant rushed towards him and rained bullets on him. He still struggled to rescue himself and walked a few paces upto the Gate of Raundal’s bungalow and was again showered with bullets by the third assailant. When his driver tried to help him to rise, he was also shot on his right thigh. P.W. 1 had laid him on the rear seat of the car and immediately asked Rajesh Johari (P.W.3) to drive the car to Cooper Hospital. P.W.1 followed the car in an auto rickshaw. By the time, the injured reached Cooper Hospital, some person from Jeet Nagar had given telephonic information to D.N. Nagar Police Station, which information was received by PSI Rashmi Jadhav(P.W. 10) at 10.35 a.m. After making station diary entry at Sr. No. 23/97, she rushed to Cooper hospital with P.I. Rane (P.W.11), PSI Shinde (P.W.13) and a police constable. There she saw one severely injured man on stretcher, a crowd of people and P.W. 1 Laxman Lavangare, the only person who could tell her what exactly happened. P.W. 10 then recorded his statement which is at Exh. 54. As per the directions of PI Rane, she returned to D.N. Nagar Police Ta(0a()ar 4 of 69 ::: Uploaded on - 01/07/2021 ::: Downloaded on - 01/07/2021 16:17:11 ::: apeal878.1006.02.doc Station and registered Crime No. 572 of 1997 for offences punishable under section 302, 307 read with section 34 of the Indian Penal Code and section 25 of the Indian Arms Act. The investigation was set in motion. 3 The prosecution examined 45 witnesses to bring home the guilt of 17 Accused persons. Accused No. 6 and Accused No. 15 were discharged in April, 2001. To evaluate the evidence adduced by the prosecution, the witnesses need to be classified in five categories. i) P.W.1 Ramchandra Lavangare, P.W. 2 Shankar Fukhe, P.W. 3 Rajesh Johari, P.W. 4 Labh Shankar Sharma and P.W. 7 Rooplal Saroj are eyewitnesses to the incident of shooting as well as the subsequent conduct of the assailants. ii) The officers who have conducted the Test Identification Parade are P.W. 20 Shrikant Kauthankar, P.W. 21 Vinod Ghedia and P.W. 36 Sitaram Jadhav. iii) The panchas to the recovery of incriminating articles at the behest of the Accused persons i.e. P.W. 24 Ashok Shah, P.W. 22 Kishor Goyal for recovery of passport, P.W. 38 Sanjay Desai, P.W. 6 Arun More for scene of offence panchanama, P.W. 8 Dhanaji Kadam Panch for recovery of Taxi of P.W. 4 which was abandoned at Kapaswadi Exh. 73. iv) Witnesses to the conspiracy to kill Gulshan Kumar are Kishan Kumar Dua P.W. 32 who happens to be the younger brother of the deceased and P.W. 37 Arif Lakdawala. Ta(0a()ar 5 of 69 ::: Uploaded on - 01/07/2021 ::: Downloaded on - 01/07/2021 16:17:11 ::: apeal878.1006.02.doc v) The local police who investigated on 12th and 13th of August, 1997 i.e. P.W. 10 Rashmi Jadhav, P.W. 17 Subhash Salvi and P.W. 45 Arjun Bagdi of DCB CID Unit. 4 P.W. 1 Ramchandra Lavangare has deposed all these facts before the Court and has proved the contents of the FIR which was lodged by him in Cooper Hospital. P.W. 1 has then given a narrative description of the event to the Court as to how the incident had occurred and the assailants who had murdered Gulshan Kumar. 5 According to P.W.1 Ramchandra Lavangare, he was well acquainted with the deceased and his driver P.W.7, Rooplal as the deceased used to visit the Shiv temple twice every day since 1976. P.W.1 used to make it a point to remain present at the temple whenever the deceased arrived. On the unfortunate day also, he was present at the temple, when Gulshan Kumar visited the temple. After Gulshan Kumar completed his daily rituals, and offered prayers, the driver of the deceased took the articles from the hands of the deceased and followed him towards the car. P.W.1 followed them up to the car, as usual. As soon as the deceased reached the car, the driver had crossed over to take the driver’s seat and therefore, P.W.1 was walking a few paces behind the deceased.
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