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MCOC SPL.C.NO.16 OF 2013 Registered on : 22.11.2013. Received on : 22.11.2013. Decided on : 16.03 .2021. Duration : 07 03 22 Years Months Days
MCOC SPL.C.NO.06 OF 2014 Registered on : 07.07.2014. Received on : 07.07.2014. Decided on : 16.03 .2021. Duration : 06 08 09 Years Months Days
MCOC SPL.C.NO.19 OF 2014 Registered on : 02.12.2014. Received on : 03.12.2014. Decided on : 16.03 .2021. Duration : 06 03 14 Years Months Days
MCOC SPL.C.NO.05 OF 2018 Registered on : 19.03.2018. Received on : 20.03.2018. Decided on : 16.03 .2021. Duration : 02 11 25 Years Months Days
Exh-898 IN THE COURT OF MCOCA SPECIAL JUDGE AT GREATER BOMBAY (Exclusive Special Court constituted for the cases under MCOCA/TADA/POTA AND OTHER SESSIONS CASES against the accused-Rajendra Sadashiv Nikalje @ Chhota Rajan)
MCOC SPECIAL CASE NO.16 OF 2013 (CNR NO. MHCC02-012823-2013) ALONGWITH MCOC SPECIAL CASE NO.06 OF 2014 (CNR NO. MHCC02-010626-2014) ... 2 ...
ALONGWITH MCOC SPECIAL CASE NO.19 OF 2014 (CNR NO. MHCC02-018290-2014) ALONGWITH MCOC SPECIAL CASE NO.05 OF 2018 (CNR NO. MHCC02-003758-2018)
The Central Bureau of Investigation, New Delhi (RC.6(S)-2016/SCU.V/SC-II/CBI/NEW DELHI) & The State of Maharashtra (at the instance of DCBCID, C.R. no.84/13, Bangur Nagar Police Station, C.R. no.206/13) .... Prosecution.
Versus.
(1) Kaushik Baldev Rajgour, (on Bail), age : 35 years, Occupation : Security Guard Company, R/o. C/603, 604, Sanskruti Apartment, Anand Nagar, Opp. Shardashram Society, Dahisar (East), Mumbai. Native place : Village : Rajula, Taluka : Amreli, Dist. : Amreli, Thane : Rajkumar, State : Gujarat.
(2) Arvind @ Arvya Pandurang Shinde, (on Bail), age : 30 years, Occupation : Driving, R/o.Loknath Singh Chawl, Room No.7, Hanuman Tekdi, Kajupada, Borivali (East), Mumbai-400 066. Native Place : Bhavani Dadka, Tal.: Udgir, Dist.: Latur, Maharashtra.
(3) Rajendra Singh @ Bhaisaheb @ Tiwari Case of the accused no.3 is Haricharan Singh Yadav already separated.
(4) Rohit @ Rotu Prabhudayal Vishvakarma, Abated on 21.01.2018 as per order on Exh.395
(5) Sunil Kumar @ Piyush Gaurishankar Tiwari, (on Bail), age : 36 years, Occupation : Driver, R/o.: Ambewadi, Behind Shri ... 3 ...
Ganesh Computer Classes, Jai Tulaja Bhavani Nagar, Wagle Estate, Thane (West), Maharashtra Native place : Gaon : Gaighat (Ragadganj), Post : Derava, Tal.: Gola, Dist.: Gorakhpur, State : Uttar Pradesh.
(6) Vilas Jitendra Bharti, (presently lodged at Mumbai Central Prison), age : 34 years, Occupation : Building material supplier, R/o. Devicha Pada, Room No.411/1, Behind Primary School, Tal.: Panvel, Dist.:Thane. At Post : Ganeshwadi, Tal.Dist.: Latur, State : Maharashtra.
(7) Amit Kishor Sinha, Approver/PW.1 (presently lodged at Thane Central Jail)
(8) Prakash @ Pakya @ Bhau Ashok Nikam, (presently lodged at Mumbai Central Prison), age : 39 years, Occupation : Service in courier, R/o. At post : Washind, Taluka Shaharpur, Dist. Thane.
(9) Rohit Tangappan Joseph @ Satish Kalya, (presently lodged at Mumbai Central Prison), age : 45 years, Occupation : Driving, R/o. Ganesh Society, Jawahar Nagar, Golibar Road, Khar (East), Mumbai.
(10) Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir, (Presently lodged at Tihar Jail, Jail No.2, New Delhi), age: 62 years, occupation: Farsan Centre business, r/o. 6/192 & 6/120, Tilak Nagar Colony, Chembur, Mumbai-400 089. .... Accused. ... 4 ...
CORAM : HIS HONOUR THE SPECIAL JUDGE, MCOCA/ POTA/NIA/TADA AND ADDL. SESSIONS JUDGE SHRI A.T. WANKHEDE. C.R.NO. : 57. . DATE : 16.03.2021. ------SPP Mr. P.D. Gharat for CBI/prosecution. Adv. Mr. Sudeep Pasbola with Adv. Mr. Tushar Khandare for accused nos.1 and 10. Adv. Mr. Samir Pradhan for accused nos.2 and 5. Adv. Mr. Ganesh Shelar for accused no.6. Adv. Mr. Prakash Shetty for accused no.8. Adv. Mr. Santosh Deshpande for accused no.9. ------JUDGMENT (DICTATED IN OPEN COURT) 1. The accused are prosecuted for the offences punishable under Sections 307, 120-B of the Indian Penal Act (hereinafter referred to as 'IPC') r/w. Sections 3,5, 25,27 of Indian Arms Act and Section 3(1)(ii), 3(2), 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as 'MCOC Act') in connection with Crime no.206/2013 originally registered with Bangur Nagar Police Station, then, re-registered as Crime no.84/2013 with DCB-CID, D-1 North, Mumbai and further registered as Crime no.RC.6(S)-2016/SCU.V/SC- II/CBI/NEW DELHI with the Central Bureau of Investigation, New Delhi.
2. Brief story of the prosecution case is as under :- On 28.08.2013, one Ajay Himmatlal Gosaliya along with his private bodyguard Arshad Abdul Gafar Shaikh had been to Infinity Mall, Link Road, Malad (West) Mumbai at about 03.00 pm. In the evening, at about 4.00 pm, he came out of the Mall for picking up auto rickshaw near the footpath gate. At that time, three unknown persons having ... 5 ... firearms in their hand aimed towards Ajay Gosaliya and fired. The bodyguard of Ajay Gosaliya tried to intervene, so, one of the assailant also fired at him, but, he warded off the bullet. Ajay Gosaliya sustained injury and tried to flee away. At some distance, he fell down and again, the assailants made firing on him. He was grievously injured. The assailants ran away to the other side of the road by crossing the road divider. The injured was taken to Zenith Hospital. He sustained injuries on his neck, shoulder, near stomach and to the palm of his hand. It is alleged that the assailants made firing on the injured Ajay Gosaliya with intend to kill him. There was conspiracy to commit his murder by the organized crime syndicate headed by the accused-Rajendra Sadashiv Nikalaje @ Chhota Rajan.
FIR AND INVESTIGATION 3. On the same day, at about 05.45 pm, the private bodyguard of injured Ajay Gosaliya namely Arshad Abdul Gafar Shaikh lodged report to the Bangur Nagar Police Station of the incident, upon which, the offence vide Crime no.206/2013 under Sections 307, 120-B of the IPC r/w. Sections 3,25 of the Indian Arms Act came to be registered against three unknown persons. The informant also gave description of the unknown assailants. The FIR was registered by API Deepak Pandurang Kirkire. He visited the spot of the incident and prepared spot panchanama in presence of panchas. On the spot, he found four empty cartridges and one misfired bullet. He seized the same and also seized the blood mixed earth and simple earth from the spot. He went to the Zenith Hospital and seized the shirt, jeans pant, belt, pair of socks, one white handkerchief and underwear of the injured and prepared panchnama of it. He also recorded the statement of one Smt.Aleyamma John (PW.14) and Jay Patil (PW.9). ... 6 ...
4. Thereafter investigation of the said crime was handed over to PI Dhananjay Tukaram Ligade. As per his directions, API Murkute recovered one Tavera Jeep and seized the same. He recorded the statement of the injured Ajay Gosaliya at Zenith Hospital and also recorded the statement of one Vijay Morya and Sharma.
5. Then, as per order of Additional Commissioner (Crimes), Mumbai, the investigation of the said crime was handed over to DCB- CID, Unit-11, where the offence was re-registered as Crime no.84/2013 under Sections 307, 120-B of the IPC r/w. Sections 3,25, 27 of the Indian Arms Act. On 30.08.2013 further investigation of the crime was entrusted to API Chimaji Jagganath Adhav of DCB-CID, Unit-IX. He made enquiry with one Chetan Desai @ Savla. He also made enquiry with one Kanhopatra Tulashiram Gaikwad about the vehicle involved in the crime. On 30.08.2013, he arrested accused-Kaushik Rajgour and accused-Arvind Shinde and prepared arrest panchanama. At the time of arrest, three mobile phones having one SIM card each seized from accused-Kaushik Rajgour and two mobile phones with one SIM card each seized from accused-Arvind Shinde. He recorded statement of Chetan Desai and other witnesses. He found involvement of accused- Piyush Tiwari @ Sunil Kumar Tiwari, Amit Sinha, Prakash Nikam and Rajendra Singh Tiwari in the offence. On getting information, he sent a team to Indore to detain accused-Rajendra Singh Tiwari. Thereafter, he arrested accused-Rajendra Singh Tiwari on 03.09.2013 and prepared arrest panchanama. During personal search of accused-Rajendra Singh Tiwari, two mobile phones having one SIM card each came to be seized. On 05.09.2013, he sent a team to Lalitapur, Uttar Pradesh to detain accused-Rohit Vishwakarma. He arrested him and prepared arrest panchanama. While in custody, accused-Rajendra Singh Tiwari gave ... 7 ... memorandum statement to show the place where they made practice firing. Accordingly, as per directions of accused-Rajendra Singh Tiwari, they went to village Shelgar at a farm house. Near stone mine, they found three empty cartridges and prepared recovery panchanama of it.
6. On 06.09.2013, he obtained blood samples of injured from Bhaghwati Hospital, Borivali and forwarded the same along with other seized muddemal for Chemical Analysis at FSL, Kalina. On 08.09.2013, he obtained the CCTV footage of Infinity Mall in two hard-discs and prepared panchanama of it (Exh.269). On 11.09.2013, he also obtained the CCTV footage dated 25.08.2013 of Thakur Mall in a CD and prepared panchanama of it (Exh.321). On 10.09.2013, he sent the sealed three empty cartridges to FSL, Kalina. He recorded statements of many witnesses and found involvement of accused-Piyush @ Sunil Kumar Tiwari, Amit Sinha, Vilas Bharati, Prakash Nikam, Satish Tangappan Joseph @ Satish Kalya and Chhota Rajan in the offence. It transpired to him that the offence was committed by the Organized Crime Syndicate. He got confirmed that more than one offence were registered against the accused-Chhota Rajan in which punishment is provided for more than three years and Court has taken cognizance of it. He obtained the copies of charge-sheet of those offences. He forwarded proposal to Joint CP Crime for addition of Sections in the offence under the provision of the MCOC Act.
7. On 20.09.2013, he detained accused-Piyush @ Sunil Kumar Tiwari at Wagle Estate, Thane. He took personal search of the accused- Piyush @ Sunil Kumar Tiwari in presence of panchas and found a wallet containing two currency notes of Rs.10/- and driving license in his name. He prepared the arrest and seizure panchanama (Exh.663). On ... 8 ...
23.09.2013, accused-Piyush @ Sunil Kumar Tiwari gave voluntary statement to produce the mobile phone. Accordingly, memorandum statement of accused came to be recorded in presence of panchas and subsequently, there is recovery of mobile phone from the house of the accused at Wagale Estate, Thane.
8. With the permission of the Court, the Test Identification Parade of accused-Rajendra Tiwari and Rohit Vishwakarma was performed at Taloja Jail by Tahisaldar, Borivali on 10.10.2013. On 26.09.2013, Joint CP, Crime accorded permission to add offences under the MCOC Act in the crime. Accordingly, offence under Section 3(1)(ii), 3(2), 3(4) of the MCOC Act came to be added in the offence. Thereafter, investigation of the crime was handed over to ACP Arvind Mahabadi (PW.54). He was also one of the member of the team formed by ACP Mahabadi. On 26.10.2013, accused-Vilas Bharati gave memorandum statement to produce mobile phone and two SIM cards. Accordingly, he prepared the memorandum panchanama and recovered the Macromax Company Mobile phone and two SIM Cards of Idea Company and Vodaphone Company from his house. ACP Mahabadi arrested accused-Amit Sinha in his presence. At his instance, one Hero Honda motorcycle was came to be seized. On 02.11.2013, search was made of the place Ghodbandar Road in front of Hotel Krishna in the forest where two mobile phones and SIM cards were thrown, but nothing was found.
9. On 07.04.2014, the accused-Prakash Nikam was trapped at Diva and taken in custody. During his search, some articles were seized. On 13.04.2014, accused-Prakash Nikam gave memorandum statement to produce the weapon. Accordingly, he recorded the memorandum statement of the accused and proceeded towards Diva (East), Thane. ... 9 ...
Consequently, there is recovery of one pistol of silver colour having black colour grip and magazine. On 25.4.2004, as per directions of IO he carried the Muddemal and deposited the same to FSL for analysis. For conducting the Test Identification Parade of accused-Prakash Nikam he issued summons to the witnesses. The Test Identification parade of accused-Prakash Nikam was held on 31.05.2014 at Arthur Road Jail.
10. On 06.09.2013, as per directions of IO, he handed over the custody of accused-Piyush @ Sunil Kumar Tiwari to DCP, Zone-XII Mr.Praveen Kumar Patil for recording confessional statement. On 08.09.2013, he again took custody of accused-Sunil Kumar Tiwari from PSI of Dahisar Police Station at CMM, Esplanade Court, Mumbai.
11. During investigation, he received mobile numbers of accused- Kaushik Rajgaur, Arvind Shinde, Rajendra Singh Tiwari, Piyush @ Sunil Kumar Tiwari, Vilas Bharati, Amit Sinha, Satish Kalya, Prakash Nikam and some of the witnesses mainly Chetan Desai, Sanjay Thakkar, Ravi Davande, Sukesh Shinde and Dinesh Thakur. He obtained CDRs of the mobile numbers of the accused and the said witnesses through his superior officers. He gave oral report about the CDRs to IO.
12. ACP Arvind Mahabadi received the investigation of the said crime on 26.09.2013. At that time, five accused were arrested including Kaushik Rajgaur, Arvind Shinde, Rajendra Singh Tiwari, Rohit Vishwakumar and Piyush @ Sunil Kumar Tiwari. He verified the investigation papers. On 27.09.2013, he informed the Special Court about invoking the provisions of the MCOC Act in the offence. He obtained PCR of accused-Piyush @ Sunil Kumar Tiwari, Kaushik Rajgaur, Arvind Shinde, Rajendra Singh Tiwari and Rohit Vishwakarma. ... 10 ...
On 01.10.2013, the wife of accused-Kaushik Rajgaur produced the Innova car bearing registration No.MH-04 EQ 5392 through driver Dinanath Pandey. He seized the car and prepared panchanama (Exh.287). On 03.10.2013, accused-Piyush @ Sunil Kumar Tiwari showed his willingness to confess before ACP Praful Bhosale. His confessional statement got recorded by DCP Zone-XII. On 08.10.2013, DCP Zone-XII handed over custody of accused-Piyush @ Sunil Kumar Tiwari to him through PSI Shingade. He recorded the statement of PSI Shingade.
13. On 10.10.2013, with the prior permission of the Court Test Identification Parade of accused-Rajendra Singh Tiwari and Rohit Vishwakarma was performed by Naib Tahasildar Sindhu Khade at Thane Central Prison. He wrote letter to DCP, Zone-XII for the copy of confessional statement of accused-Piyush @ Sunil Kumar Tiwari and received the same on 16.10.2013. On 24.10.2013, they apprehended the accused-Vilas Bharati at Kamothe Village, Kalamboli, Navi Mumbai and prepared the arrest panchanama. Personal search of accused-Vilas Bharati was performed and found one mobile phone with SIM card, PAN card and Aadhar Card. Said articles were seized. On 26.10.2013, while in custody, accused-Vilas Bharati gave memorandum statement to produce mobile and SIM card. Accordingly, one mobile phone and two SIM cards recovered from accused-Vilas Bharati. On 30.10.2013, wanted accused-Amit Sinha came to be apprehended at Fountain Hotel, Mira Road. He arrested him and prepared panchanama (Exh.727). On 01.11.2013, Amit Sinha gave memorandum statement to produce motorcycle. Accordingly, Hero Honda motorcycle having registration no. MH-04-EJ-4466 came to be recovered. ... 11 ...
14. During investigation, the mobile companies Airtel, Loop mobile, Vodafone and Idea submitted the CDR details of the mobile numbers of the accused. He obtained the certified copies of previous three charge- sheets filed against the accused from the concerned Court in which cognizance of offence was taken. He recorded the statement of the Investigating Officers of the said offences. He also recorded the statements of the Nodal Officers of the mobile companies.
15. On 14.11.2013, he made proposal to Commissioner of Police for sanction to file charge-sheet against the arrested and wanted accused. He got the sanction on 20.11.2013. Thereafter, he filed the charge-sheet before the Special Court against the arrested accused nos.1 to 7 and wanted accused.
16. On 07.04.2014, Senior PI Sawant and API Adhav detained accused-Prakash Nikam at Diva and produced before him. He arrested accused-Prakash Nikam. During his personal search, one black colour mobile was found. He prepared the arrest-cum-search panchanama (Exh.728) of accused-Prakash Nikam. On 13.04.2014, as per his directions API Adhav seized one country made pistol and five live rounds from accused-Prakash Nikam. He sent the seized pistol and rounds for examination to FSL, Kalina. By taking permission of the Court, Test Identification Parade of the accused-Prakash Nikam was conducted by Naib Tahasildar Smt.Khade in Arthur Road Jail on 21.05.2014. Thereafter he was transferred to Borivali Division and further investigation was handed over to ACP Sunil Deshmukh.
17. ACP Sunil Laxman Deshmukh (PW.48) received investigation of the Crime from ACP Mahabadi. He made proposal for sanction of ... 12 ... prosecution under the MCOC Act to Commissioner of Police, Mumbai in respect of accused-Prakash Nikam. He received sanction for prosecution against accused-Prakash Nikam on 03.07.2014. On 04.07.2014, he submitted the charge-sheet against accused-Prakash Nikam in the Special Court. During his investigation, two accused namely Satish Kalya @ Satish Tangappan Joseph and accused-Chhota Rajan @ Rajendra Nikalje were wanted. He obtained production warrant of accused-Satish Kalya and arrested him on 02.09.2014. He recorded statements of witnesses. He filed proposal for sanction of prosecution to Commissioner of Police in respect of accused-Satish Kalya and received the sanction on 20.11.2014. On 27.11.2014, he filed charge-sheet against accused-Satish Kalya before the Special Court. Thereafter, DYSP of CBI took the investigation of the said crime and he handed over the documents of investigation to him.
18. During pendency of the trial, the wanted/absconding accused- Rajendra Sadashiv Nikalje @ Chotta Rajan deported to India from Indonesia and came to be arrested by CBI on 06.11.2015 in R.C. no.7(A)/2015/SCU-V/SC.II/CBI/New Delhi (Passport Case). As per notification no.228/56/2015-AVD-II dated 21.11.2015 issued by Government of India with the consent of State Government of Maharashtra, Home Department vide notification no.TER-1115-CR- 363/SPL-I B dated 13.11.2015 ordered for transfer of investigation to CBI. FIR with CBI registered by Shri S.S. Kishor, SP CBI, SC-II, New Delhi on 07.04.2016.
19. In the meanwhile, accused no.10 moved application (Exh.119) to surrender before this Court and by order dated 21.04.2016, he was taken in judicial custody. Thereafter, I.O. Jagrup Singh (PW.55) of CBI, ... 13 ...
Dy. Supdt. of Police, CBI/SC-II/New Delhi took over investigation of the crime. He collected the record from ACP Deshmukh from DCB CID, Mumbai. He recorded the statement of the witnesses and collected relevant record. He obtained mobile phones of the accused from the Court and one from ACP Deshmukh and sent it for analysis to FSL, Kalina, Mumbai. He obtained arms and ammunitions from the Court and sent it for analysis to the FSL, Kalina, Mumbai. He collected the certificate under Section 65-B of the Evidence Act and statement of accounts, specimen signature part of the witness from Union Bank of India. He collected the certified copies of the supplementary charge- sheet of CBI in Special MCOC Case no.19 of 2011 and another charge- sheet of DCB CID. After completion of investigation, he filed charge- sheet against the accused.
CHARGE 20. The learned Predecessor of this Court took cognizance of the offence against the accused and framed charge vide Exh.151 under Sections 120(B) r/w. 307,34 of IPC r/w. Sections 3,25,27 of the Indian Arms Act and Sections 3(1)(ii), 3(2) and 3(4) of the MCOC Act. The accused pleaded not guilty and claimed for the trial. Separate pleas of the accused recorded vide Exh.152 to 159.
PROCEEDING ABATED AGAINST ACCUSED NO.4-ROHIT 21. During pendency of the trial, the accused no.4-Rohit @ Rotu Prabhudayal Vishvakarma reported to be dead on 16.01.2018 at Mumbai Central Prison, Mumbai. Superintendent of Jail submitted report Exh.394 on dated 17.01.2018. Accordingly, proceedings against the accused no.4-Rohit @ Rotu Prabhudayal Vishvakarma stands abated by the order dated 22.01.2018. ... 14 ...
ABSCONDING OF ACCUSED NO.3-RAJENDRA 22. It appears from the record that consequent to the request letter issued by the learned Special Judge, M.P.D.A.V.P.K., Datiya, Madhya Pradesh for handing over the custody of the accused-Rajendra Haricharan Yadav for investigation in C.R. No.171/2013 under Sections 302, 201, 392, 404 of IPC and 11/13 of M.P.D.A.V.P.K. Adhiniyam in Special Case no.33/2013, this Court allows the production vide order below Exh.23 on 12.02.2014 and directed the Superintendent of Central Prison, Thane to hand over the custody of accused-Rajendra Haricharan Yadav to PSI Mr.J.P. Ahriwar of Police Station, Bhander, District Datiya, Madhya Pradesh. Accordingly, Superintendent of Thane Central Prison handed over the custody of the accused to PSI Mr.J.P. Ahriwar of Police Station, Bhander, District Datiya, Madhya Pradesh on 13.02.2014, specifically mentioning that after investigation accused be sent back to their prison and should not hand over to another Police Station or released him directly. Thereafter, he was lodged at Datiya Jail, Madhya Pradesh. However, the Superintendent of Thane Central Prison informed vide letter Exh.127 that the concerned Datiya Jail released the accused and not informed to them. In fact, the accused must not have been admitted to the Datiya Jail and should have been sent back to Thane Jail itself. Apparently, there are lapses on the part of the Police Officer who took the accused to be produced before the learned Special Judge, M.P.D.A.V.P.K., Datiya, Madhya Pradesh and also, the Superintendent of Datiya Jail. An enquiry needs to be made in this regard. This aspect be further considered during the concluding part of this judgment. ... 15 ...
APPROVER 23. In the meanwhile, one of the accused-Amit Kishor Sinha made request to the Court vide Exh.86 to turn himself as an Approver. Accordingly, by way of order dated 15.06.2015, then Presiding Officer of this Court accepted to tender pardon to the accused on certain conditions. The accused-Amit Kishor Sinha accepted the pardon, so tender on conditions (Exh.86-B). Thereafter, as per Section 306(4) of Cr.P.C. and Section 9(3) of the MCOC Act, the approver was examined vide Exh.89. Further, Approver also filed his written statement on 10.07.2015 vide Exh.93.
24. In support of the charges levelled against the accused including the evidence of Approver (PW.1), the prosecution examined in all 55 witnesses and closed their evidence by filing pursis Exh.772.
STATEMENT OF ACCUSED UNDER SECTION 313 OF CR.P.C. 25. After completion of evidence of prosecution, all the incriminating piece of evidence explained and made over to the accused. The statement of the accused nos.1,2,5,6,8 and 9 under Section 313 of the Cr.P.C., recorded vide Exh.780 and statement of accused no.10 recorded vide Exh.782. The defence of the accused is of total denial, innocence and false implication. It is the Special Defence of the accused no.6 that he is having enmical terms with witness Ashok Gharat, who implicated him in this offence with the help of police. During their statements, accused no.1,2,5,6 & 8 stated to examine the defence witnesses namely Mr.Dinesh Thakur, Ashok Gharat, Colonel Mr.Ramesh Upadhyay and one person from U.P. Whereas, accused no.9 stated to examine defence witness only to Colonel Mr.Ramesh Upadhyay. However, failed to adduce evidence of any such witnesses. The other accused choose not to ... 16 ... examine any witnesses in their defence, nor testified themselves in the witness box.
ARGUMENTS 26. Heard the learned SPP Mr. P.D. Gharat for CBI/prosecution and the learned Adv. Mr. Sudeep Pasbola for accused nos.1 and 10, learned Adv. Mr. Samir Pradhan for accused nos.2 and 5, learned Adv. Mr. Ganesh Shelar for accused no.6, learned Adv. Mr. Prakash Shetty for accused no.8 and learned Adv. Mr. Santosh Deshpande for accused no.9 at considerable length. Also perused the written notes of arguments submitted by accused no.6 (Exh.880), accused no.9 (Exh.890) and accused no.10 (Exh.858). They also relied on several citations.
27. Perused the entire record and proceeding and the arguments advanced by the rival parties alongwith citations. Following points arise for consideration of this Court and findings to them are given for the reasons stated as under :-
Sr. no. Points Findings
1 Whether the prosecution proved that the accused nos.1,2,4 to 6 and 8 to 10 along with absconding accused no.3, between the period 13.06.2013 to 28.08.2013 generally within the limits of Mumbai, in furtherance of common intention of all, agreed to do or caused to be done illegal acts namely, to commit murder by gun shots by the accused nos.4 and 8 and the absconding accused no.3 at the instance of the accused no.10 and with all the necessary help of the accused nos.1, 2, 5, 6 and 9 and in furtherance of their above said common object in order to meet the object as afore stated, the accused nos.1, 2, 4 to 6 and 8 on the ... 17 ...
28.08.2013 between 16.00 hrs to 16.15 hrs. came on different vehicles opposite Infinity Mall on Link Road, Malad (West), Mumbai and the accused nos. 4 and 8 opened fire from firearms at the injured-Ajay Himmatlal Gosaliya, with such an intention and under such circumstances that if by that act they had caused the death of injured-Ajay Himmatlal Gosaliya, they would have been guilty of murder and during the firing, four bullets hit in the body of the injured-Ajay Himmatlal Gosaliya causing grievous injuries to him and thereby the accused nos.1, 2, 4 to 6 and 8 to 10 have committed an offence punishable u/s Proved except 120(B) r/w Sections 307 of the Indian Penal Sections 3, 25 & 27 Code r/w Sections 3, 25, 27 of the Arms Act r/ of the Arms Act. w Sections 3(1) (ii), 3 (2), 3(4) of the M. C. O. C. Act, 1999 ?
2 Whether the prosecution proved that on or about, 28.08.2013 between 16.00 hrs to 16.15 hrs. the accused nos.1, 2, 4 to 6 and 8 to 10 along with absconding accused no.3, pursuant to the above said conspiracy, during the course of same transaction, at the instance of the accused no. 10 and with all the necessary help of accused nos. 1, 2, 5, 6 and 9, in furtherance of their above said common intention in order to meet the object as afore stated, the accused nos. 1, 2, 4 to 6 and 8 alongwith absconding accused no.3 came on different vehicles opposite Infinity Mall on Link Road, Malad (West), Mumbai and the accused nos.4 and 8 alongwith absconding accused no.3 opened fire from firearms at the injured-Ajay Himmatlal Gosaliya, with such an intention and under such circumstances that if by that act they had caused the death of injured-Ajay Himmatlal Gosaliya, they would have been guilty of murder and they thereby caused hurt to the injured-Ajay Himmatlal Gosaliya and during the firing, four bullets hit in the body ... 18 ...
of the injured-Ajay Himmatlal Gosaliya causing grievous injuries to him and that the accused nos.1, 2, 4 to 6 and 8 to 10 have thereby committed an offence punishable under Section 307 r/w Section 120(b), alternatively under Section 307 r/w Section 34 I. P. C. ? Proved.
3 Whether the prosecution proved that the accused nos.4 and 8 along with absconding accused no.3 on or about 28.08.2013 between 16.00 hrs to 16.15 hrs. in furtherance of common intention of all accused, and pursuant to the above said conspiracy, during the course of same transaction, opposite Infinity Mall on Link Road, Malad (West), Mumbai had in their possession and carried the firearms and ammunition without holding a license issued in accordance with the provisions of the Arms Act which the accused used in contravention of Section 5 and thereby committed an offence punishable under Section 25(a) r/w Section 3 of the Arms Act ? Not proved.
4 Whether the prosecution proved that the accused nos. 4 and 8 alongwith absconding accused no.3 on or about 28.08.2013 between 16.00 hrs to 16.15 hrs. in furtherance of common intention of all accused, and pursuant to the above said conspiracy, during the course of same transaction, opposite Infinity Mall on Link Road, Malad (West), Mumbai used the firearms and ammunition without holding a license issued in accordance with the provisions of the Arms Act which the accused used in contravention of Section 5 and thereby committed an offence punishable under Section 27 of the Arms Act ? Not proved.
5 Whether the prosecution proved that the accused nos. 1, 2, 4 to 6 and 8 to 10 along ... 19 ...
with the absconding accused no.3 during the period 13.06.2013 to 28.08.2013 generally within the limits of Mumbai, in furtherance of common intention of all accused, and pursuant to the above said conspiracy, during the course of same transaction were the members and co-conspirators of the organized crime syndicate headed by the accused no.10- Rajendra Sadashiv Nikalje, and as such, were parties to the continuing and carrying on unlawful activity undertaken jointly as the members of the organized crime syndicate or on behalf of such syndicate viz. headed by the accused No.10 which was an activity prohibited by law for the time being in force and which is a cognizable offence punishable with imprisonment for three years and more and undertaken jointly as the members of an organized crime syndicate in respect of which more than one charge-sheets have already been filed with an object of gaining illegal and undue pecuniary benefits as well as economic advantage, gain and benefit from the business community, particularly, the builder community for all accused by committing the criminal offence which is the offence punishable under chapters XVI of the Indian Penal Code and by their above described illegal activities, all the accused have committed the offence punishable u/s 3(1)(ii) and 3(2) of the M. C. O. C. Act, 1999 ? Proved.
6 Whether the prosecution proved that the accused nos. 1, 2, 4 to 6 and 8 to 10 during the period 13.06.2013 to 28.08.2013 generally within the limits of Mumbai, in furtherance of common intention of all accused, and pursuant to the above said conspiracy, during the course of same transaction, conspired to commit an organized crime namely, to approach the injured-Ajay Himmatlal Gosaliya and commit his murder by gun shots by the ... 20 ...
accused nos. 4 and 8 alongwith the absconding accused no.3 at the instance of the accused no. 10 and with all the necessary help of the accused nos. 1, 2, 5, 6, 7 and 9 and by their above described illegal activities, all the accused have committed the offence punishable u/s 3(2) of the M. C. O. C. Act, 1999 ? Proved.
7 Whether the prosecution proved that the accused nos. 1, 2, 4 to 6 and 8 to 10 along with the absconding accused no.3 during the period 13.06.2013 to 28.08.2013 generally within the limits of Mumbai, in furtherance of common intention of all the accused and pursuant to the above said conspiracy, during the course of same transaction, were the members of the Organized Crime Syndicate and thereby they have committed an offence punishable under Section 3(4) of the M. C.O. C. Act, 1999 ? Proved.
8 What order ? As per final order.
REASONS
AS TO POINT NOS.1 TO 7 28. All these points are taken for discussion in common caption, as the evidence laid by the prosecution is common to all, which will avoid unnecessary repetition. Besides the fact that the accused are charged for attempt to commit murder of PW.33-Ajay Gosaliya, serious allegations are levelled by the prosecution that the said act was committed by the organized crime syndicate headed by accused-Rajendra Sadashiv Nikalje @ Chhota Rajan. During pendency of the trial the matter has got a twist, as one of the accused namely Amit Kishor Sinha made request to the Court to tender pardon and termed him as an 'Approver'. Accordingly, the learned Predecessor of this Court tendered pardon to ... 21 ... the Approver PW.1-Amit Kihor Sinha on conditions by way of order dated 15.06.2015 below Exh.86 on the condition that he should disclose the true and correct information to the Court. Needless to mention here that a conviction can solely be based on the evidence of an Approver, if his evidence is reliable and worthy of credit. At this stage, before adverting to the aspect of reliability of the Approver Amit Kishor Sinha, it is preferred to first of all discuss on the incident, report, spot of incident, injury sustained by the injured etc. For that, it is required to be dealt with the evidence of following witnesses :-
PW.33 Ajay Himmatlal Gosaliya Injured PW.49 Arshad Abdul Gafar Shaikh Bodyguard of PW.33 and also informant. PW.09 Jai Ramakant Patil Security Guard, Infinity Mall PW.10 Sambhaji Chandrakant Kale Security Guard, Infinity Mall PW.11 Chetan Lakshman Khambhla Friend of PW.33 PW.15 Santon Gabrial Fernandes Working in Food Court of Infinity Mall PW.46 PI Dhananjay Tukaram Ligade Attached to Bangur Nagar Police Station. PW.50 API Deepak Pandurang Kirkire Attached to Bangur Nagar Police Station.
29. Besides the evidence of these witnesses, the prosecution also examined PW.2-Shankar Limbaji Dedhe, the pancha witness on the spot panchanama, PW.4-Atul Vijay Kapase and PW.14-Smt. Aleyamma John, the pancha witness on seizure of clothes of injured. As regards the injury sustained by the injured, the prosecution examined PW.34- Dr.Amitanand Ramchandra Ajgaonkar. Further to prove the FIR, lodging of the report, the prosecution relied on the evidence of PW.49-Arshad ... 22 ...
Abdul Gafar Shaikh, the informant and PW.50-API Deepak Kirkire, who accept the report and registered the offence.
INCIDENT 30. The witness PW.33-Ajay Himmatlal Gosaliya is a star witness of the prosecution and his evidence is of crucial nature, which requires to be dealt with scrupulously. It has come in the evidence of PW.33-Ajay Himmatlal Gosaliya that on 28.08.2013 at around 3.00 pm, he had been to the Infinity Mall. He was continuously receiving phone calls from Chetan Desai, as he wanted to meet him. When he went to Infinity Mall, Chetan Desai was waiting for him outside the Infinity Mall. Thereafter, they went to the Food Court of the Mall on third floor. When they were taking food, Chetan Desai received a phone call, he left the table and went to one side for attending the phone call and returned after some time. Chetan Desai told him that there was one property at Antop Hill. He told him that it was a slum area and that he would get it vacated. Ajay Gosaliya told him that he would talk to Jayesh Shah about that. After they had talk and took the food. Chetan Desai left that place at around 03:45 p.m. After Chetan Desai had left, he was there in the Infinity Mall for about 10-15 minutes. He had telephoned his friend Sanjay Vyas who was also his business partner. After he had reached the Infinity Mall, he had sent back the i20 car of Firoz Shaikh. Sanjay Vyas told him that he was at the check naka. Sanjay Vyas told him that he would come to the Inorbit Mall from highway. He told Sanjay Vyas that he would come to the Inorbit Mall from the Infinity Mall by rickshaw.
31. He further deposed that when he was at the gate of the Infinity Mall, he saw that three persons were standing there. One person abused him. He looked back to see who that person was. All the three persons ... 23 ... had a gun with them. When he turned around to look at them, they fired at him. He tried to save himself. It was drizzling at that time and therefore his leg slipped. He fell down. Those persons again fired at him. He ran inside the Infinity Mall. He told the guard about the incident. The guard closed the gate. Those three persons followed him till the gate but as the guard had closed the gate they ran away. He was bleeding profusely. An ambulance was called and he was taken to the Zenith Hospital. Dr. Amit Ajgaonkar who was present in the hospital immediately referred him to the operation theater. He was admitted in the Zenith hospital for five days. After discharge he went to his house. He had received four bullet injuries. One bullet hit him on the chain which he was wearing in his neck. After hitting the chain, said bullet brushed his throat vertically upwards. The second bullet hit him near the thumb of his right palm. That bullet also brushed his right palm. The 3rd bullet hit the left side of his waist and exited from near that place. The 4th bullet had hit him on the right side of chest above the nipple.
32. In view of the evidence of PW.33 Ajay Gosaliya, the incident took place on 28.08.2013, when he was moving out of the Infinity Mall. His evidence was very consistent that after Chetan Desai left the Mall, he was there for about 10 to 15 minutes. For taking auto rickshaw, he went towards the footpath gate of the Infinity Mall, whereat, he was fired by three unknown persons. He received four bullet injuries out of which one hit to his chain and brushed his throat vertically upwards. Another bullet hit to the thumb of his right palm, left side of waist and right side of chest above the nipple. ... 24 ...
33. To substantiate the fact of incident, the prosecution examined PW.49-Arshad Abdul Gafar Shaikh, the bodyguard of PW.33-Ajay Himmatlal Gosaliya. He deposed that in August 2013, he was bodyguard of PW.33 and was on duty on 28.08.2013. At about 3.00 pm, they went to Infinity Mall. At the Food Court of the said mall, the meeting of PW.33 Ajay Gosaliya was going on. He further deposed that they came out of the Mall near gate and about to cross the road. He heard sound like bursting of crackers. He deposed that one person tied white scarp on his face and wearing cap was having pistol in his hand of long barrel. He asked him what he is doing, on which, he fired towards him. He avoided the gun shot. He further deposed that 2 to 3 persons came from behind the rickshaw who also tied scrap on face. They made firing towards Ajay Gosaliya, he tried to ran away and fell down. Due to shouts of the public the person who were firing ran away to the opposite side of the mall. Ajay Gosaliya got up and went into the mall. He sustained injury on his front side of neck and right hand palm. Blood was oozing from said injury. He called the security of the Mall and asked them to call the Ambulance. Ambulance came after five minutes, he took Ajay Gosaliya to Zenith Hospital. He was admitted in the Hospital. After arrival of Police, he narrated the incident to them. His statement was recorded and on the basis of the same, the offence was registered.
34. The evidence of PW.49-Arshad Abdul Gafar Shaikh is very specific about happening of incident on 28.08.2013 and that he along with PW.33 Ajay Gosaliya had been to Infinity Mall at around 3.00 pm and when they were returning from the Mall, three persons made firing on Ajay Gosaliya and one of them also fired at him. In this manner, the ... 25 ... evidence of PW.49-Arshad Abdul Gafar Shaikh is consistent and corroborates PW.33-Ajay Gosaliya that the incident took place at Infinity Mall on 28.08.2013 and three persons fired on Ajay Gosaliya.
35. Further, the prosecution examined PW.9-Jai Ramakant Patil, who in the year 2013, was working as Security Guard at Infinity Mall. He deposed that his duty hours were from 7.00 am to 4.00 pm. His brother- in-law Sambhaji Kale was also working as Security Guard at Infinity Mall. On 28.08.2013, he was on duty at third floor of the Infinity Mall in the Game Zone. He was on duty till 3.15 pm. Thereafter, he had gone for day briefing and went outside the mall with Sambhaji Kale. They went on the motorcycle. Near the traffic signal of the Solitaire 1 and 2 building, Sambhaji dropped him and went ahead. At that time, he heard a cracker-like sound and tried to find out, from where the sound came. He found that the sound came from near the Main Gate of the Mall and public had started to gather at that place. He called Sambhaji, who parked his motorcycle at the road side and came near him. He saw that three persons were crossing the road and coming towards them. They were crossing the road which was in front of the Mall. They crossed the road divider. The divider was having some height, one person out of them, failed down while crossing the road divider. That person again got up and started going on the road towards Goregaon. Those persons were coming towards them. They were at a distance of 20 to 25 feet from them. He saw pistols in the hands of two persons. Those persons went towards the traffic signal where a vehicle was standing. The vehicle was like Tavera or Innova Car of white colour. The registration number of said vehicle was MH-04-ES-4792. ... 26 ...
36. The prosecution further examined PW.10-Sambhaji Chandrakant Kale, the Security Guard of Infinity Mall. He deposed that in 2013, he was working as Security Guard at Infinity Mall. PW.09-Jai Patil is his brother-in-law. On 28.08.2013, he was on duty at Food Court on third floor. He joined duty at around 6.40 am. He was on duty till 3.20 pm. After duty hours, he and Jai Patil came outside of the Mall at 4.00 pm. After coming out of the Mall, they stopped at Signal as they heard the sound. He stopped near the Solitaire Building. He saw 2 to 3 persons running towards their directions. They had guns in their hands. One vehicle was standing there. Those persons sat in that vehicle and went away. It was a Tavera vehicle of white colour.
37. Both the witnesses PW.09-Jai Patil and PW.10-Sambhaji Kale categorically stated that the incident took place on 28.08.2013, at about 4.00 pm. These witnesses are having no concerned with either PW.33- Ajay Gosaliya or PW.49-Arshad. Rather nothing is brought in their cross- examination to co-relate them with PW.33-Ajay Gosaliya and PW.49- Arshad. Their evidence coupled with the evidence of PW.49-Arshad clearly substantiate that the incident took place on 28.08.2013 at about 4.00 pm, near the gate of the Infinity Mall. In fact, there cannot be any dispute regarding the happening of such incident.
38. Again on the point of happening of incident, prosecution examined PW.15-Santon Gabrial Fernandes, who was the Security Supervisor at the Infinity Mall. He deposed that on 28.08.2013, he was on duty in Food Court from 1.30 pm to 11.30 pm. When he came down, he saw that public running here and there. Therefore, he went towards main gate, to see what happened. He saw that the main gate was closed ... 27 ... and one person was standing and bleeding. He tied a handkerchief on the neck of said person. There was bleeding to his hand as well. From his duty cell phone, he called ambulance and after arrival of the ambulance, he placed the injured in that ambulance.
39. Evidence of this witness also established the fact that on 28.08.2013, the incident was taken place in front of Infinity Mall and one person got injured. He was cross-examined on the situation of the Infinity Mall. Though, he admit that the injured was placed in the ambulance between 3.30 pm to 4.00 pm, but, he stated that he cannot give the exact time. He also admitted in his cross-examination that the spot panchanama was prepared at about 4.15 pm to 4.30 pm. May be this question was put to the witness to show the difference in time, but, this indicates that he was aware about the incident. The evidence of this witness also strengthened the case of the prosecution that the incident took place on 28.08.2013 after about 4.00 pm and one person got injured having injury on his neck and hand. Though this witness has not stated the name of the injured, but that would not discard the fact of his meeting with injured, tying his handkerchief on the neck and boarding him in the ambulance. Further the handkerchief stained with blood came to be seized by the police from the Zenith Hospital.
40. The prosecution further examined PW.11-Chetan Lakshman Khambhla, but, he has not supported the prosecution. However, he deposed that he know PW.33-Ajay Gosaliya since last 8 to 9 years. After 2009, he had good relations with PW.33-Ajay Gosaliya. On 28.08.2013, he went to meet PW.33-Ajay Gosaliya regarding documents of Kandivali property. He met with him at around 3.30 pm in the Infinity Mall. He went to the entrance gate. After 15 to 20 minutes, PW.33-Ajay Gosaliya ... 28 ... also came there. Then, they went to Food Court. From the evidence of this witness also, it is made clear that on 28.08.2013, PW.33-Ajay Gosaliya had gone to Infinity Mall. He along with PW.33-Ajay Gosaliya went to Food Court and he was with PW.33-Ajay Gosaliya in the Mall for 20 to 25 minutes. This had left no point of dispute that on 28.08.2013, PW.33-Ajay Gosaliya had been to Infinity Mall. No doubt, this witness has not supported the prosecution in material particulars, but, his evidence is consistent with regard to the date, time and place of visiting PW.33-Ajay Gosaliya at Infinity Mall. It is settled that the evidence of the Hostile witness cannot be discarded in toto and the Court can separate the chaps from grain. Further, the evidence of PW.33-Ajay Gosaliya and PW.49-Arshad is sufficient to come to the conclusion that on 28.08.2013, at about 4.00 pm to 4.15 pm, the incident of firing took place and three unknown persons fired at him.
REPORT 41. It is specific evidence of PW.49-Arshad Abdul Gafar Shaikh that after the incident, ambulance was called and PW.33-Ajay Gosaliya was taken to the Zenith Hospital, wherein, he was admitted. Thereafter, his statement was recorded by Police and on the basis of the same, Police registered the crime. Through his evidence, prosecution proved the statement which is treated as report. This witness identified the contents of the same to be true and correct, so also his signature. On the basis of said statement PW.50-API Kirkire registered the offence. The statement and FIR (Exh.616 colly.) clearly shows that the same was recorded on 28.08.2013 itself. The contents of the report clearly depicts and corroborates the fact that the incident took place on 28.08.2013 between 4.00 pm to 4.15 pm outside the gate of Infinity Mall and three unknown persons fired on PW.33-Ajay Gosaliya. ... 29 ...
42. To substantiate the evidence of PW.49-Arshad, the prosecution also examined PW.50-API Deepak Pandurang Kirkire who deposed that on 28.08.2013, he was attached to Bangur Nagar Police Station as API. At about 4.30 pm, they received information that firing took place in front of Infinity Mall, Malad (West). They also came to know that the injured was taken to the Zenith Hospital and under treatment. They went to Zenith Hospital, whereat came to know that PW.49-Arshad was with the injured. So, he took him to the Police Station, recorded his statement and on that basis, registered FIR (Exh.616 colly.) vide crime No.206 of 2013 under Sections 307, 120(b) of IPC r/w. Sections 3 and 25 of the Arms Act. He also identified the contents of the statement of the Informant Arshad and FIR to be true and correct. The FIR (Exh.616) shows that the information was received to the Police Station at 16.30 hours. This indicates that the report was lodged promptly, which eliminates the chances of embellishment of prosecution case and false implication.
43. The learned Advocate for the accused submitted that the report is managed, anti-timed and anti-dated. Attention is drawn towards the cross-examination of PW.49-Arshad, wherein, he admits that his first statement was recorded at Bangur Nagar Police Chowki at 8.00 pm. Police took him from Zenith Hospital on 7.00 pm. They reached to Zenith Hospital at 4.30 pm to 5.00 pm and police came there, after 5.30 pm. It is argued that if at all Police came to the Zenith Hospital at 5.30 pm, then, as per he contents of the FIR, how the information was received to the Police station at 16.30 hours. It is also argued that when as per evidence of PW.49-Arshad, his statement was recorded at Bangur Nagar Police Chowki at 8.00 pm, then how the FIR came to be ... 30 ... registered at 4.30 pm. It is argued that this shows that the report was manipulated. Certainly, there may be discrepancy about the time mentioned in the FIR, but that itself is not sufficient to discard the evidence of PW.49-Arshad and PW.50-API Deepak Kirkire. Even though, it is assumed that the information received to the Police Station at 7.00 pm, still the delay of 1 hour to 2 hours is negligible. In fact, nothing is brought in the cross-examination about the reason behind manipulation of the report, when the same was lodged against the unknown assailants. As such, there is no substance in this ground raised by the defence.
44. The learned Advocate Mr.Pasbola and learned Advocate Mr.Deshpande pointed out that the statement of the witness PW.49- Arshad cannot be treated as First Information. The learned Advocate brought attention of the court to the cross-examination of PW.50-API Deepak Pandurang Kirkire, wherein he admit that the information of firing was received twice to their police station. He admit that as it was confirmed, he did not affirm that the information was of cognizable offence. Therefore, it is argued that the information of firing itself suggestive of happening of cognizable offence and the same should be the First Information. Assuming for the sake of moment that PW.50-API Mr.Kirkire received the information about firing suggesting happening of a cognizable offence, still, such cryptic information cannot be termed as a First Information Report. It is settled that telephonic information which is cryptic cannot be regarded as first information. As such, this ground raised by the defence do not holds any substance.
NATURE OF INJURY AND BY WHICH WEAPON 45. The evidence of PW.33-Ajay Gosaliya is very specific that when he ... 31 ... came out of the gate of the Infinity Mall, three persons were standing there and all of them, had guns with them and made firing on him. This fact is also corroborated by PW.49-Arshad. It may be the fact that PW.33-Ajay Gosaliya has not made any whisper about the incident of firing made on PW.49-Arshad by one of the assailants, however, he is not expected to witness for the reason that the assault was made on him first and he was trying to save himself. Nowhere in the cross- examination of either PW.33-Ajay Gosaliya or PW.49-Arshad, it is denied that PW.49-Arshad was not the bodyguard of PW.33-Ajay Gosaliya and on the date of the incident, he was not accompanied with PW.33-Ajay Gosaliya. The evidence of PW.33-Ajay Gosaliya is very specific that he sustained injuries on his throat, right hand palm, left side of waist and right side of chest above the nipple. Even, PW.49-Arshad also stated that PW.33-Ajay Gosaliya received injuries on the front side of neck and right hand palm. Although, PW.49-Arshad had not stated about injuries sustained by PW.33-Ajay Gosaliya on his left side of waist and right side of chest, but, at that time, he may not have noticed these injuries.
46. The learned Advocate Mr.Deshpande for accused no.9 argued that the injuries stated by PW.33-Ajay Gosaliya is an omission to his statement dated 10.09.2013. It may be so, but, the nature of injuries cannot be changed. Merely non stating the injuries during statement is not sufficient to discard the fact of injuries sustained by the injured PW.33-Ajay Gosaliya nor even, sufficient to create doubt in his testimony.
SEIZURE OF CLOTHS OF INJURED 47. It is not in dispute that after the incident, the injured PW.33-Ajay Gosaliya was admitted to the Zenith Hospital. His clothes i.e. blue ... 32 ... colour shirt, chocolate colour trouser, one belt etc. came to be seized vide Seizure Panchanama Exh.272 at the Zenith Hospital. In order to prove the seizure of clothes of injured, the prosecution examined PW.4- Atul Vijay Kapse, the pancha witness. He deposed that on 28.08.2013, he was working in the Zenith Hospital as Supervisor. Ajay Gosaliya was brought to their hospital and taken to emergency ward. The clothes which he was wearing were removed and given the clothes of hospital to wear. He specifically deposed that the clothes of the injured Ajay Gosaliya were seized by the Police in the hospital in his presence. He specifically gave the description of the clothes, due to which, the shirt, pant and belt are marked as Article-34 colly. and the underwear, socks and handkerchief are marked as Article 42 colly. Only because in the cross-examination, he was unable to state the exact time when the injured-Ajay Gosaliya was brought to the hospital, will not discard the fact of admitting the injured Ajay Gosaliya to Zenith Hospital. There may be some discrepancy about the time brought in the cross- examination of this witness, but, fact remains that the injured was admitted to Zenith hospital and his clothes came to be seized. There is no reason for PW.4 Atul to depose false or have any grudge against the assailants.
48. Though the prosecution proved the seizure panchanama (Exh.272) through the evidence of PW.4 Atul, for the reason best known to them again examined PW.14-Smt. Aleyamma John about the seizure of the clothes, but, she has not supported the prosecution. However, her evidence was specific that on 28.08.2013, one patient was brought to the ICU of the hospital and after initial treatment was given, he was taken to the operation theater. The evidence of PW.4-Atul may be contrary to the contents of panchanama Exh.272 as regards the ... 33 ... production of the clothes of the injured by one Sandeep, in place of PW.14-Smt. Aleyamma John, but that is not sufficient to discard the fact of seizure of clothes of injured.
49. Ongoing through the contents of seizure panchanama (Exh.272), it shows that there were blood stains on the shirt & pant (Article-34 colly.), handkerchief & socks (Article-42 colly.). There is also specific mention about one hole each on the left side and at the right arm side of the shirt. Even, the said holes are also presently visible. On perusal of the same, no other conclusion can be drawn than that the said holes are caused due to firing of bullet can be drawn.
INJURIES 50. Now in order to prove the injuries sustained to the injured PW.33- Ajay Gosaliya, the prosecution examined PW.34-Dr.Amitanand Ramchandra Ajgaonkar. He deposed that on 28.08.2013, he was present in the hospital. On that day, one patient was brought to the hospital in the afternoon. His name was Ajay Gosaliya. The injured was brought to the hospital as he had suffered gun shot injuries. They have taken the X- ray and the patient was taken to the ICU and operated. The injured had following injuries- i) Lacerated wound over the anterior aspect of the throat, 6 cm x 3 cm x larynx deep with blackening of the skin and gunshot petechial marks over the lower part of the face. ii) The second injury was on the right anterolateral aspect of the chest wall entry wound 1 cm x 1 cm with right arm lateral aspect exit wound 3 cm x 1 cm bone deep. iii) The third injury was on the right hand palmer aspect thenar eminence, entry wound was 2 cm with severe muscle crush and exit wound over the same place 4 ... 34 ...
cm lateral having size of 4 cm x 1 cm with tendon of the abductor pollicis and thenar muscles which were torn and damaged. iv) The fourth injury was in the left thoraco abdominal region exit wound 3 cm x 1 cm and entry wound 3 cm lateral 3 cm x 1 cm.
51. Accordingly, he issued the injury certificate (Exh.457) on 28.08.2013 itself. He deposed that the injured was discharged from their hospital on 03.09.2013. The Discharge Summary is at Exh.458. Again, on 07.09.2013, he issued the Discharge Certificate to the IO vide Exh.459.
52. The evidence of PW.34-Dr.Amitanand Ramchandra Ajgaonkar makes it clear that the injured Ajay Gosaliya was brought to their hospital on 28.08.2013, having gun shot wounds over neck, right arm, right hand and left side of the abdomen. Even, the injury certificate Exh.457 clearly depicts that the gunshot wounds were caused to the injured PW.33-Ajay Gosaliya. This has left no room of doubt that on 28.08.2013, firing was made on PW.33-Ajay Gosaliya and he sustained the gunshot wounds.
53. This witness is cross-examined at length. He admit that he has not mentioned the entry and exit wound of the first injury in the certificate, but, in the next breath, he volunteers that the injury was lacerated. He fairly admit that he cannot say which was entry wound and which was exit wound in injury no.1. He further admit that from the entry and exit wound, one can ascertain the track of bullet. In fact, once the medical officer stated that the injury was lacerated, there can not be the entry and exit wound. He also admit that he has not mentioned the signs of firearm injuries of the Injury nos.2,3 and 4. He further admit that ... 35 ... petechial marks can be caused due to pellets. He further admit that if the bullets pierced into the skin, the skin become everted. In fact, this is not the situation in this matter, as none of the bullets pierced into the body of the injured nor there is any entry or exit wound. As per evidence of PW.33-Ajay Gosaliya when the firing was made on him he made an attempt to ran away and due to drizzling, his left leg slept and he fell down. Again, he stand up and went to the Infinity Mall. The fact that there was drizzling on 28.08.2013 is not disputed, as the same was brought in the cross-examination of PW.33-Ajay Gosaliya as well. May be due to such situation, none of the bullets pierced into the body of the injured PW.33-Ajay Gosaliya. Ultimately, there is no question of pointing out any entry or exit wound. There is nothing wrong on the part of the PW.34-Dr.Amitanand Ajgaonkar when he is not able to state from how much distance the bullets might have been fired. He denied that the injury no.1 can be caused only if something pierced into body. He further denied that the injury on left side of abdomen can be caused if something hit over that portion. He rightly stated that no bullet found in the body of the injured, except one bullet which was found in the liver of the injured, which was old injury. The evidence of PW.34- Dr.Amitanand Ramchandra Ajgaonkar is worthy of credit and reliable about the injury sustained to the injured PW.33-Ajay Gosaliya. Moreover, his evidence coupled with the injury certificate (Exh.457) and discharge summary (Exh.458) materially corroborates the evidence of PW.33-Ajay Gosaliya that he sustained gunshot injuries on 28.08.2013.
54. The defence has raised some controversy about the recording of the statement of the informant-Ajay Gosaliya on 28.08.2013 and 29.08.2013. On this aspect, the evidence of PW.46-PI Dhananjay ... 36 ...
Tukaram Ligade is very specific that he recorded the statement of PW.33-Ajay Gosaliya on 29.08.2013 at Zenith Hospital. This fact is also supported by PW.34-Dr.Amitanand Ajgaonkar, that the Police has recorded the statement of the injured on 29.08.2013. He further stated that on the day of the incident the statement could not be recorded as the patient was not in a position to give statement. In this regard, PW.34-Dr.Amitanand Ajgaonkar also issued certificate Exh.457 on 28.08.2013. This has made clear that the statement of the injured was recorded by PW.46-PI Dhananjay Ligade on 29.08.2013. Now, it is argued that though the injured was admitted to the hospital, no certificate was issued by the medical officer that he was fit to give statement. Even, this fact is admitted by PW.46-PI Dhananjay Ligade that he had not obtained endorsement of the attending doctor before recording statement. It may be so, but, PW.34-Dr.Amitanand Ajgaonkar stated in the cross-examination itself that the patient was fit to give statement on 29.08.2013. This has left this controversy at rest.
SPOT PANCHANAMA 55. About happening of the incident on 28.08.2013 in front of Infinity Mall, another part of evidence laid by the prosecution is the preparation of spot panchanama and seizure of articles from the place of occurrence. In this regard, the prosecution relied on the evidence of PW.50-API Deepak Pandurang Kirkire and PW.2-Shankar Limbaji Dedhe. It will not be out of place to mention here that from the evidence of PW.33-Ajay Himmatlal Gosaliya, PW.49-Arshad Abdul Gaffar Shaikh, so also, PW.15-Santon Gabrial Fernandes, the prosecution proved beyond reasonable doubt that the incident took place on 28.08.2013, at about 4.00 pm to 4.15 pm, in front of gate of Infinity Mall. To further the same, PW.50-API Deepak Pandurang Kirkire stated that he visited the ... 37 ... spot of incident situated at Infinity mall and prepared spot panchanama (Exh.255) in presence of panchas and one Jai Ramakant Patil i.e. PW.9. He further deposed that on the spot of incident, he found four empty cartridges (Article-12 colly. and Article-30) and one misfired bullet (Article-26). He collected the blood mixed earth and simple earth (Art.74,75) from the spot and accordingly, prepared the spot panchanama. Needless to say that the evidence of PW.50-API Kirkire visiting the spot of occurrence and preparing spot panchanma is substantive evidence. In order to corroborate PW.50-API Deepak Kirkire, prosecution also examined PW.2-Shankar Limbaji Dedhe as pancha witness who was the security guard of the Infinity Mall. He deposed that the Police Officer of Bangur Nagar Police Station called him before gate nos.5 and 6 of the Infinity Mall. One Sanjay Jadhav was also with him and two persons from their staff were also present. Police took measurement of that place. There were three empty cartridges lying at the spot. Police encircled that place and seized those empty cartridges and kept in plastic bags. He further deposed that one piece of copper which was round in shape was lying near the gate of size of above 0.25 inches like a pipe and it's one side was closed. Police kept that copper piece in one packet. The third bag was containing a single empty cartridge and it was found first by the police. Accordingly police prepared spot panchanama (Exh.255) and obtained his signature over the same. Though, initially PW.2-Shankar Limbaji Dedhe stated that only three cartridges were found, but thereafter made it clear that there was a third bag containing single empty cartridge which was found first by the Police. Therefore, the evidence of PW.2 Shankar about the seizure of empty cartridges from the spot and one piece of copper round in shape, is in consonance with the contents of the spot panchanama (Exh.255). The contents of the spot panchanama speaks in volume that ... 38 ... incident of firing took place on injured Ajay Gosaliya in front of Infinity mall in between gate no.5 and 6.on 28.08.2013.
56. Much has been argued pointing out to the cross-examination of this witness that the police officer has not produced on record any documents to show that the PW.2-Shankar Limbaji Dedhe or either PW.9-Jai Ramakant Patil, PW.10-Sambhaji Chandrakant Kale, PW.15- Santon Gabrial Fernandes were on duty at the Infinity Mall as Security Guards. Certainly, no such document is placed on record by the prosecution. Still, the question did arise why these witnesses will depose false. In fact there is no reason for these witnesses to depose false against anybody or specifically against the accused. The spot panchanama (Exh.255) prepared immediately after the incident and there is no reason to dispute the same.
57. It is argued by the learned Advocate Mr.Deshpande that though it is mentioned in the spot panchanama and deposed by PW.50-API Deepak Kirkire that PW.9-Jai Ramakant Patil was present at the time of preparation of the spot panchanama, but, PW.9 Jai is silent about his presence on the spot. Attention is drawn towards cross-examination of PW.10-Sambhaji Chandrakant Kale, wherein, he stated that he did not go near the gate no.5 to find out what had happened and went to his house. Therefore, it is argued that if they did not go to the gate no.5, then how PW.9-Jai Ramakant Patil was present on the spot, which has created doubt about the preparation of spot panchanama. In fact, this is not the evidence of PW.9-Jai Ramakant Patil, rather, his statement came to be recorded on 28.08.2013, itself indicates his presence at Infinity Mall. ... 39 ...
58. The learned Advocate for the accused argued that though as per prosecution, PW.49-Arshad witnessed the incident and on the basis of his statement, the offence came to be registered, but, surprisingly, he has not shown the place of occurrence. This fact is also admitted by PW.50-API Deepak Kirkire in his cross-examination that PW.49-Arshad was not present on the spot. Merely, the absence of informant PW.49- Arshad on the spot will not sufficient to create doubt about the preparation of the spot panchanama.
SEIZURE OF TAVERA VEHICLE 59. It is significant to note here that looking to the gravity of the offence the DCB CID, Unit-11, Kandivali was parallelly conducting investigation of the said crime. This fact is stated by the IO of DCB CID, PW.52-API Chimaji Adhav. He stated that they were making the investigation of the said crime no.206 of 2013 registered with Police Station, Bangur Nagar. Thereafter, the said crime was transferred to their Unit on 30.08.2013 which was just re-numbered as C.R. no.84 of 2013. It has come in the evidence of PW.52-API Chimaji Adhav that during investigation, one of the witness stated about the vehicle number in which the assailants fled away. Rather, PW.9-Jai Patil and PW.10- Sambhaji Kale specifically stated that they had seen a Tavera or Innova vehicle of white colour having registration no.MH-04-ES-4792. Taking clue from the same, PW.52-API Chimaji Adhav made enquiry about the said vehicle involved in the crime and got information that the said vehicle was belonged to one Kanhopatra Tulsiram Gaikwad. The prosecution examined said PW.6-Smt.Kanhopatra Tulshiram Gaikwad. She deposed that the Tavera vehicle No.4792 belongs to her and on 28.08.2013, PW.17-Ravi Mahadeo Davande had come to her house and ... 40 ... told that there was customer for the vehicle which was to be taken to the Airport. He also told her that the rent was fixed of Rs.1,800/-. One Piyush was with Ravi Daund. She gave the keys of the vehicle to Ravi Daud. In the evening, Ravi Daud returned the vehicle at 5.30 pm to 6.00 pm. Though the prosecution examined PW.17-Ravi Mahadeo Davande, but, he has not supported the prosecution. Rather, he only stated that Miss Shila Gaikwad is the owner of Tavera vehicle. He also identified the accused-Sunil Kumar @ Piyush Tiwari in the Court. No doubt, this witness has resiled from his earlier statement, but, establish his nexus with accused-Sunil Kumar Tiwari. The evidence of PW.6- Smt.Kanhopatra Gaikwad appears to be natural and there is no reason to disbelieve her.
60. On 29.08.2013 itself, through API Murkute of Goregaon Police Station, Mumbai, the Tavera vehicle of Chevrolet Company bearing registered No.MH-04-ES-4792 came to be seized. The prosecution examined PW.5-Manoj Shankar Uppal, who acted as panch witness on the seizure panchanama of Tavera vehicle Exh.282. He specifically deposed that on 29.08.2013, Police seized the Tavera vehicle and prepared seizure panchanama of it i.e. Exh.282. In the glove box 5 to 6 xerox papers, two receipts of toll were found. The receipts are at Article-43 colly. Even, the evidence of PW.6-Smt.Kanhopatra Tulsiram Gaikwad is very specific that the Police seized her Tavera vehicle. She also identified the accused-Piyush Tiwari and stated that he had come along with Ravi Daund to her house. In cross-examination she admit that after she had seen Piyush on 28.08.2013, she had no occasion to see him till today. The learned Advocate Mr.Deshpande for accused no.9 argued that there is variance about the time of seizure of the Tavera vehicle, which create doubt on the seizure of vehicle itself. Attention is ... 41 ... drawn towards cross-examination of PW.6-Smt.Kanhopatra Gaikwad, wherein, she stated that the Police came at 11.00 am to 12.00 noon. Whereas, the spot panchnama Exh.282 shows that the same was started at 16.30 hours and ended at 17.30 hours. However, the evidence of PW.5-Manoj Shankar Uppal is very specific that on 29.08.2013 at about 4.00 pm to 4.30 pm he had been to the Sathe Nagar whereat Police requested him to act as pancha. The time of panchanama stated by PW.5-Manoj Uppal is in consonance with the contents of the seizure panchanama Exh.282. Therefore, not much weight can be given to the admission of PW.6-Smt.Kanhopatra Gaikwad. Though PW.5-Manoj Uppal and PW.6-Smt.Kanhopatra Gaikwad has to face the searching cross-examination, but, they stick up to their version. Ultimately, the prosecution has proved that the vehicle Tavera came to be seized on 29.08.2013 vide seizure panchanama Exh.282. This is an additional circumstance which co-relates with the happening of the incident and also, attached credibility to the evidence of PW.9-Jai Ramakant Patil and PW.10-Sambhaji Kale.
ARREST AND PERSONAL SEARCH OF ACCUSED NOS.1 AND 2 61. In view of the evidence of PW.52-API Chimaji Adhav, during investigation, he found that lastly one Chetan Desai @ Chetan Savla was with the injured Ajay Gosaliya. Accordingly, he obtained his mobile number and called him. At that time, he was at Inorbit Mall, Malad West. Chetan Desai told him that he was with Ajay Gosaliya till 4.00 pm on 28.08.2013 and one Kaushik Rajgour was continuously following them. Even from PW.17-Ravi Davande, he got the mobile number, the last digit of which were 168. He found connection of this mobile number with accused-Arvind Shinde, who was the driver of accused- Kaushik Rajgaur. Accordingly, 30.08.2018 at 22.00 hours, he arrested ... 42 ... accused-Kaushik Rajgour and Arvind Shinde and prepared arrest panchanama Exh.294. At the time of arrest, three mobile phones (two of Nokia Company (Article-47 and 48)and one of Samsung Company (Artcile-46)) having one SIM card each (Article-X-19 to Article-X-21) were found with accused-Kaushik Rajgour. From the search of accused- Arvind Shinde two mobile phones of Micromax and Nokia Company (Article-51 and 52) with one SIM card each (Article-X-22 and X-23) came to be seized.
62. In addition to the evidence of PW.52-API Chimaji Adhav, the prosecution examined the panch witness PW.8-Santosh Bhaskar Pednekar. He specifically deposed that on 30.08.2013 at 10.00 pm, Police called him at office of Crime Branch. In his presence, personal search of accused-Kaushik Rajgour and Arvind Shinde was taken. The articles such as mobile phones, SIM cards were found with them. Accordingly, police prepared panchanama (Exh.294). The learned Advocate Mr.Pradhan for accused nos.2 and 5 argued that PW.8-Santosh Pednekar is the stock panch witness of the Police. Attention is drawn to his cross-examination, wherein, he admits that he used to be called to act as panch witness. Police did not inform him from where the accused arrested. He do not know whether the mobiles were in working condition or not. It may be the fact that this witness admitted that he used to be called as panch witness, but, no specific details were taken from him. He cannot have any grudge against the accused. Rather there is no reason to disbelieve this witness. The fact cannot be disputed that the accused-Kaushik Rajgaur and Arvind Shinde are arrested in this offence. ... 43 ...
63. Ongoing through the contents of the arrest panchanama Exh.294, the following are the details of mobile numbers of the mobile phones seized from the accused-Kaushik Rajgour and Arvind Shinde.
Accused-Kaushik Rajgour : Samsung Mobile phone Article-46 8879388959 Nokia Mobile phone Article-47 9833933340 Nokia Mobile phone Article-48 9594888804 Accused-Arvind Shinde : Micromax Mobile phone Article-51 8693084405 Nokia Mobile phone Article-52 9821639570
ARREST OF OTHER ACCUSED 64. During investigation, PW.52-API Chimaji Adhav found involvement of the accused-Piyush Tiwari @ Sunil Kumar Tiwari, Amit Sinha, Prakash Nikam and Rajendra Tiwari in the offence. On getting information, he had sent a team to Indore to bring accused-Rajendra Singh Tiwari. Accordingly, he was brought to Mumbai on 03.09.2013 and arrested. His personal search was taken, in which, two mobile phones seized from him with one SIM card each. Accordingly, the arrest panchanama Exh.655 was prepared. The accused-Rajendra Tiwari jumped on bail and now absconding. As per contents of arrest panchanama Exh.655, the following two mobile phones are seized from him :
Accused-Rajendra Tiwari : Samsung Company GTE Article-25 7748978338 Mobile phone Vell-com Mobile phone Article-26 8878222490
65. Thereafter, PW.52-API Chimaji Adhav sent a team to bring accused-Rohit Vishwakarma to Lalitpur Uttar Pradesh and brought him on 05.09.2013. He arrested in presence of panchas and prepared the arrest panchanama Exh.292. ... 44 ...
66. On 20.09.2013, the accused-Piyush @ Sunil Kumar Tiwari came to be arrested. During his personal search, a wallet containing two currency notes of Rs.10/- and driving license in his name came to be seized. The arrest and seizure panchanama is at (Exh.663).
67. On 24.10.2013, they apprehended the accused-Vilas Bharati at Kamothe Village, Kalamboli, Navi Mumbai and prepared the arrest panchanama. Personal search of accused-Vilas Bharati was performed and found one mobile phone with SIM card, PAN card and Aadhar Card. Said articles were seized.
68. On 07.04.2014, the accused-Prakash Nikam was trapped at Diva and taken in custody. During his personal search, some articles were seized including a Black color Max Company Mobile No.7715816556.
CCTV FOOTAGE 69. As per evidence of PW.52-API Chimaji Adhav, he obtained the CCTV footage from the cameras of the Infinity Mall, Malad (West). The selected CCTV footage from total 32 cameras of dated 28.08.2013 from 14.00 hours to 18.00 hours, was provided by PW.28-Vinod Dattaram Rewale, the Assistant Vigilance Officer of Infinity Mall. He produced the CCTV footage in hard-disc. The prosecution examined PW.28-Vinod Dattaram Rewale. He deposed that in the year 2013, the officer from Crime Branch met him with reference to the shoot out taken place at the entry gate of Infinity Mall. They wanted CCTV footage of the incident. He gave them the required CCTV footage in a hard-disc. He had given two hard-discs of 1.60 GB memory each. Police sealed one hard-disc and took other with them as it is. He provided the CCTV ... 45 ... footage of the day of the shoot out. He copied the CCTV footage from the DVR in two hard-discs. The record of CCTV footage provided by him was taken from 9 to 10 DVRs. He also issued certificate (Exh.403) under Section 65-B(2) of the Indian Evidence Act. When the hard-disc (Article-41) played he identified that all the 32 files were furnished by him.
70. To corroborate the fact of seizure of the hard-disc (Article-41) of the CCTV footage, the prosecution examined PW.3-Mahesh Balkrishna Panchal. He deposed that Police called him to act as a pancha in the CCTV Control room of the Infinity Mall. Police told him that the operator had downloaded the CCTV footage of the incident in a hard- disc. The CCTV operator sealed the two hard-discs and handed over to Police. The hard-discs were kept in a cover and then sealed. Police prepared panchanama (Exh.269) of it, affixed the lable on the envelope which is at Exh.270. He also identified the hard-disc (Article-41).
71. Ongoing through the contents of the panchanama Exh.269, it reveals that the same was prepared on 08.09.2013 and there is mention that the back up of CCTV footage from the 32 cameras of the Infinity Mall was taken in the hard-disc. The specification of the hard-disc also mentioned in the panchanama. The back up of the CCTV footage was taken in two hard-discs, out of which one was sealed and other kept by the Police for the investigation. The contents of the panchanama Exh.269 corroborates the evidence of PW.3-Mahesh Balkrishna Panchal and PW.28-Vinod Dattaram Rewale. These witnesses are stand still on their say that the CCTV footage was taken by the Police in the hard-disc on 08.09.2013 of the Infinity Mall. Needless to say here that the CCTV footage is the best electronic evidence and the investigation officer had ... 46 ... made an attempt to obtain the same. The PW.28-Vinod Dattaram Rewale also produced the certificate (Exh.403) under Section 65-B of the Evidence Act.
72. It is argued by the learned Advocate Mr.Pasbola that the certificate is not in accordance with the provisions of Section 65-B of the Evidence Act and the same has been obtained by the investigation officer on 27.09.2016 i.e. after three years of taking back up of the CCTV footage in the hard-disc. Attention is also drawn towards cross- examination of PW.28-Vinod Dattaram Rewale that he did not give any certificate under Section 65-B of the Indian Evidence Act at the time of handing over the hard-disc. He admit that he came to know for the first time in 2016 that certificate under Section 65-B is required to be issued. Apparently, the Certificate Exh.403 seems to be issued on 27.09.2016 i.e. after 3 years of the incident. No doubt, it is settled that ignorance of law is no excuse, but the said defect cannot be said as incurable. Even, during the pendency of the trial also, the prosecution can be produced the certificate from the concerned under Section 65-B of the Indian Evidence Act. Merely because the certificate was produced after a span of three years could not dis-entitle the fact of taking the back up of the CCTV footage from the DVRs of the Infinity Mall. Be that as it may, recently the Hon'ble Supreme Court in the matter of Union of India Vs. CDR, Ravindra Vs. Desai reported in (2018) 16 SCC 273, held that, “non production of a certificate under Section 65-B of Evidence Act on an earlier occasion is a curable defect.” Ultimately, though PW.28-Vinod submitted the certificate to the IO of CBI after three years, the same will not affect the admissibility of the electronic record as it is curable defect and that has been cured by the Prosecution. ... 47 ...
73. The learned Advocate Mr.Pasbola argued that PW.28-Vinod Revale do not know about the contents of the certificate issued under Section 65-B of the Indian Evidence Act. Therefore, the certificate itself is defective. Attention is invited to his cross-examination, wherein, he admit that he prepared the certificate with the help of his senior. He do not know anything about Section 65-B of the Indian Evidence Act. He further admit that the contents of the certificate may have been obtained by his senior from police and he do not have personal knowledge about the contents of certificate. Therefore, it is argued by the learned Advocate Mr.Pasbola that the certificate Exh.403 is of no help to the prosecution and therefore, the contents of the hard-disc (Article-41) cannot be said to be proved, rather, cannot be read as evidence. Here it is necessary to opt to rely on the judgment of the Hon'ble Apex Court in the matter of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and ors. in Civil Appeal Nos.20825-20826 of 2017 decided on 14.07.2020, held that “if the electronic evidence is authentic and relevant, the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65-B(4).”
74. Apparently, when it comes to admissibility of evidence of information contained in electronic record, a written certificate under Section 65-B(4) is a sine quo non for admissibility of such evidence. Moreover, the person issuing the certificate needs only to state in the certificate that the same is to the best of his knowledge and belief. It is not seriously disputed that at the relevant time PW.28-Vinod Dattaram Revale was the Supervisor of the Infinity Mall. His evidence coupled ... 48 ... with the evidence of PW.3-Mahesh Balkrishna Pancal inspires confidence that on 08.09.2013 the back up of the CCTV footage of 32 cameras of Infinity Mall were taken by him in two hard-discs and handed over to the Police. It may be the fact that he may not know about the provisions of Section 65(B) of the Indian Evidence Act and even, how to issue the certificate, but, his evidence is very specific that the contents of certificate (Exh.403) are true to the best of his knowledge and belief. Consequently, the certificate (Exh.403) cannot be said as defective. Ultimately the electronic record in hard-disc (Art.41) is admissible.
75. The learned Advocate Mr.Deshpande for accused no.9 argued that the entire proceedings of taking back up of the CCTV footage in the hard-disc itself is doubtful. Further it is argued that the DCM number and the DCX number of the hard-disc mentioned in the panchanama (Exh.269) and the DCM number, DCX number, R/N number and WWN number mentioned on the hard-disc (Article-41) are different. In the cross-examination PW.3-Mahesh Panchal was unable to assign any reason for the same. He admit that the word 'green power hard-drives by WD' appearing on the hard-disc (Article-41) are not mentioned in the panchanama (Exh.269). He was unable to assign any reason as to why the model number of hard-disc mentioned in the panchanama and the actual model number of the hard-discs are different. Therefore, it is argued by the learned Advocate Mr.Deshpande that back up of the CCTV footage which was allegedly given by PW.28-Vinod Dattaram Rewale is not the same which has been produced by the prosecution through the hard-disc (Article-41). Certainly, on comparison of the details of the hard-disc mentioned in the panchanama Exh.269 and that of the lable over Article-41, there is difference about the DCM, DCX, R/ N and WWN number, however, the make of the hard-disc and it's S/N. ... 49 ... and MDL number are the same. Surprisingly, nothing has been asked by the defence to PW.28-Vinod Dattaram Rewale about this who actually took back up of the CCTV footage and produced the hard-disc (Article- 41) to the Police. In fact, he is the best person who can throw light and comment upon it. Material to point out here that the hard-disc (Article- 41) was produced in the Court in the sealed condition and the same was opened during the evidence of PW.1-Approver. It means and suggest that after it being seized and sealed on 08.09.2013 during panchanama (Exh.269), the same was opened before the Court on 10.02.2017 itself. The sealed envelope (Article 35) in which it was kept was opened on 10.02.2017 itself. The seal was intact. The label over Article-35 is marked as Exh.272. It bears the signature of the panchas and Asstt. Police Inspector. This leaves no room of doubt that the hard- disc containing the back up of the CCTV footage given by PW.28-Vinod Dattaram Rewale to Police Officer is the same.
76. During investigation, the CCTV footage of Thakur Mall dated 25.08.2013 brought on record by the Prosecution, through the evidence of PW.41-Mandar Sanjay Dhulap who was the 'Desktop Support Engineer' of Star Bazar Dahisar. However, at this stage, the evidence pertaining to the contents of the CCTV footage of both Infinity Mall and Thakur Mall and it's relevancy is reserved to be considered after the appreciation of evidence of PW.1-Approver. Let us now turned to the evidence of the Approver.
EVIDENCE OF APPROVER 77. As already stated during the pendency of the trial, the case of the prosecution has taken a twist, when the accused-Amit Kishor Sinha moved an application (Exh.86) on 01.06.2015 before this Court to turn himself as an Approver, mentioning that he wished to unveil true facts ... 50 ... of case and thereby helping the investigating agency and the Court. On this application, the IO filed reply (Exh.86-A) giving no objection to tender pardon to accused-Amit Kishor Sinha, if he supports the prosecution. By way of order dated 15.06.2015, the then predecessor of this Court accepted the pardon tendered by the accused-Amit Kishor Sinha on conditions. Accordingly, vide Exh.86-B plea of the accused- Amit Kishor Sinha came to be recorded and he accepted the tender of pardon on condition to make full and true disclosure of the facts related to the offence to his personal knowledge. Thereafter, as per Section 306(4) of the Cr.P.C. and Section 9(3) of the MCOC Act, the deposition of witness-Amit Kishor Sinha came to be recorded vide Exh.89 on 15.06.2015 itself. Consequently, prosecution examined the Approver Amit Sinha as PW.1.
78. Apparently, PW.1-Approver Amit Kishor Sinha was one of the accused in the crime. As per Section 133 of the Indian Evidence Act the accomplice is a competent witness. Once he turned as an Approver, his evidence carries vital importance, as the conviction can be based on his evidence. As regards the credibility of the evidence of the Approver, the learned Advocate Mr.Pasbola relied on the judgment of Bhiva Doulu Patil Vs. State of Maharashtra reported in AIR 1963 Supreme Court 599, wherein, it is held that, “the combined effect of section 133 and 114, illustration (b) may be stated as follows :-According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. ... 51 ...
79. The learned Advocate Mr. Pasbola further relied on the judgment of the Hon'ble Bombay High Court in the matter of Bhikubhai Dayaram Thanki and anr. Vs. State of Maharashtra reported in 2018 SCC OnLine Bom 2636, wherein, regarding the principles of appreciation of evidence of an Approver reference is made on the judgment of the Hon'ble Supreme Court in Chandraprakash Vs. State of Rajasthan as follows :- 23. The case of Chandra Prakash Vs. State of Rajasthan, reported in (2014) 8 SCC 340 is one such case where the Hon'ble Supreme Court has discussed the principles regarding appreciation of evidence of an Approver. After referring to section 133 of the Evidence Act, which reads thus; “133. Accomplice- An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.” and the illustration (b) of Section 114 of the Evidence Act which reads thus; (b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars.
24. The Hon'ble Supreme Court in paragraph No.40 has observed thus; 40. Having stated the legal position with regard to the statutory provisions, presently we shall proceed to consider the requisite tests to be applied to accept the credibility of the testimony of the Approver. At this juncture, we may sit in a time machine and quote a passage from Sarwan Singh Rattan Singh v. State of Punjab reported in AIR 1957 SC 637 wherein it has been held as follows: 7. ...An accomplice is undoubtedly a competent witness under the Evidence Act, 1872. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent ... 52 ... corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the Approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the Approver is a reliable witness. If the answer to this question is against the Approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an Approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the Approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the Approver. 8....Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an Approver all the more before the question of corroboration of his evidence is considered by criminal courts.
25. In paragraph No.41 of the same judgment the Hon'ble Supreme Court has referred to an earlier judgment in the case of Ravinder Singh Vs. State of Haryana, reported in (1975) 3 SCC 742 and has reproduced the observations therein as under; “12. An Approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. ... Secondly, once that hurdle is crossed, the story given by an Approver so far as the ... 53 ... accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt.
26. These principles laid down in the case of Chandra Prakash Vs. State of Rajasthan (supra) were reiterated in the case of Khokan Giri alias Madhab Vs. State of West Bengal, as reported in 2017 (12) SCC 767. In paragraph No.16 of the said judgment it is observed thus; 15. It was, however, argued by learned Counsel appearing for the Appellant that the High Court went wrong in giving undue importance to the testimony of Raju Rao and basing the conviction of the appellant thereupon in the absence of independent corroborative evidence in material particulars. He submitted that law in this respect is well trenched in series of judgments. He referred to the judgment of this Court in Chandra Prakash v. State of Rajasthan, reported in 2014 (8) SCC 340, wherein this Court had occasion to revisit the entire case law on the subject and the principle has been succinctly and lucidly stated therein. It is stated by the learned Counsel for the appellant that Section 114 Illustration (b) has to be read along with Section 133 of the Act, which deals with the statement of accomplice. It was his submission that, no doubt, as per the said provisions, an accomplice can be a competent witness against an accused person and the conviction also would not be treated as illegal merely because it proceeds upon the incorroborative testimony of the accomplice. However, at the same time, Section 114 Illustration (b) also lays down that an accomplice is unworthy of credit unless he is corroborated in material particulars. It is for this reason, the Court restated the principle to the effect that though the accomplice would be competent to give evidence, it is a rule of practice that it would almost always be unsafe to convict upon his testimony alone. What is required is that, as a matter of practice, the evidence of the accomplice should not be accepted without corroboration in material particulars. Further, such corroboration must connect the accused with crime and also that this corroboration must be from an independent source, meaning thereby, one accomplice cannot corroborate another.
27. Thus, the principles laid down by the Hon'ble Supreme ... 54 ...
Court guide us to test the evidence of the Approver in this case. As the aforementioned judgments have laid down, the prosecution has to first establish that the Approver is a reliable witness and then secondly his evidence should receive sufficient corroboration in material particulars. In addition, Khokan Giri's case has also laid down that such corroboration must come from an independent source, meaning thereby one accomplice cannot corroborate another. These principles are important in the instant case because the prosecution is also relying on the confessions of some of the accused recorded u/s 18 of the MCOCA.
80. In the above judgment, the entire aspect of appreciation of the evidence of the approver is discussed and furnished guidelines, which will be very profitable in dealing with evidence of Approver.
81. Further, it is useful to refer to the judgment of the Hon'ble Apex Court relied on by the learned Adv. Mr. Sudeep Pasbola for accused nos.1 and 10, in the matter of Sarwan Singh Rattan Singh Vs. State of Punjab reported in (S)AIR 1957 S.C.637, wherein, it is held that “The appreciation of an Approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the Approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the Approver”
82. In view of the above pronouncement, to attach credibility to the evidence of Approver, the prosecution has to satisfy double test i.e. (i) the prosecution has to first establish that the Approver is a reliable witness and then, (ii) his evidence should receive sufficient corroboration in material particulars. Moreover, such corroboration must come from an independent ... 55 ...
source, meaning thereby one accomplice cannot corroborate another.
83. Keeping in mind the above principles laid down by the Hon'ble Supreme Court regarding the appreciation of the evidence of the Approver, now it is necessary to dealt with the evidence of Approver to ascertain whether he is reliable witness and then secondly, whether his evidence receives sufficient corroboration in material particulars.
84. It has come in the evidence of Approver PW.1-Amit Kishor Sinha that in the year 2005, till Ganpati Festival he was residing at the same address which is given by him. His family including his father was also staying there with him at that time. During Ganpati festival, the volunteers used to collect contribution from society members and spend the money in beer bar. As his father objected, some of the volunteers entered his house and assaulted him and his father. A case was registered against them. He received stitches in the assault and he was admitted to the hospital. After this incident, he went to Dadar for residing there. He know Shailesh Nalla who was his friend. He was living at Dadar. He know Jagdish Shetty who was also residing at Dadar at that time. He came in contact with Jagdish Shetty through Shailesh Nalla. Jagdish Shetty was a gangster. He wanted to take revenge of the assault on him and his father. He used to stay in contact with Jagdish Shetty. Through him, he came in contact with Ravi Mallesh Bora @ D.K. Rao who was the right hand man of Chhota Rajan. In the year 2008, he was arrested with Jagdish Shetty in a case of extortion, Arms Act and theft. As he used to come to the Court on the dates of his matter, he came in contact with D.K. Rao. He was lodged in Arthur Road Jail and there he came in contact with Rohit Tanagappan Joseph @ Satish Kalya. ... 56 ...
While he was in custody in that case, he was handed over to Crime Branch, Pavane, New Mumbai in another case. In the year 2010, he was arrested in a firing case which had occurred in their society. He was released on bail in that case. He was an accused in that case. He was lodged in the Thane Central Prison in connection with that case. From there he was shifted to Taloja Central Prison as there was an incident of assault between himself and members of Guru Satam gang. D.K. Rao helped him to arrange for bail in that case. He was in contact with D.K. Rao. He knew Kaushik Rajgour. He came in contact with him through D.K. Rao in the jail during interview time. D.K. Rao had told him that Kaushik Rajgour belonged to his company i.e. Chhota Rajan company. He told D.K. Rao that after he would be released on bail he should give him a job. D.K. Rao told him that he would get him a job as a body guard of the builder at a construction site. He got bail with the help of D.K. Rao. D.K. Rao helped him by giving Rs.10,000/-.
85. After he was released on bail, he contacted Kaushik Rajgour on his phone. Kaushik Rajgour told him that all the sites were full and that he would contact him. Kaushik Rajgour also told him that D.K. Rao had told him to give money to him if required. During that period, his mother was diagnosed with blood cancer. She was to be given chemotherapy for which the cost was about Rs.20,000/- per week. He used to get money from D.K. Rao. At that time, he was also working with a courier company. The doctor had told him that Rs.5,00,000/- would be required for the treatment of his mother. He asked for help from D.K. Rao but he did not help. Therefore, he contacted Kaushik Rajgour for help. Kaushik Rajgour also told him that he did not have money. Kaushik Rajgour told him that Satish Kalya was 'in form' and that he could help him. He asked Kaushik as to how he could meet ... 57 ...
Satish Kalya. After about 3-4 days, Kaushik Rajgour gave him the date of a case in the Killa Court. Kaushik Rajgour told him to meet Satish Kalya in that case at Killa Court. He went to the Killa Court and met Satish Kalya. He told his problem to Satish Kalya. Satish Kalya told him that he will get money if he do some work of Chhota Rajan. He had told him to commit a murder. He told Satish Kalya that his mother was hospitalized and he cannot do such work. Then, Satish Kalya told him to arrange for 2-3 persons and weapons from Uttar Pradesh. He agreed for that. He agreed to arrange for people and weapon for committing murder. Satish Kalya then told him to come to Arthur Road Jail gate. Thereafter, Satish Kalya was taken to the Arthur road jail and he went away. On the same day, he went to the Arthur road jail. He met Satish Kalya there. Satish Kalya introduced him to Prakash Nikam. At that time, Kaushik Rajgour and Arvind Shinde were also present there. Satish Kalya told him that Prakash Nikam was handling the work of firing, Kaushik Rajgour would give the financial help and the information about Ajay Gosaliya and he was to be murdered. Satish Kalya said that if Ajay Gosaliya dies, the Chhota Rajan gang will be benefited. He also said that Ajay Gosaliya was old enemy of Chhota Rajan and earlier attempt to kill him had failed as the police had arrested the persons who had come to kill Ajay Gosaliya. Satish Kalya told him to purchase 4-5 mobile phones and SIM cards in the name of other persons. Satish Kalya told him that he would contact him from jail and give the details. They had exchanged their mobile numbers which they had at that time with each other. Satish Kalya told him to call Kaushik Rajgour and Prakash Nikam daily in the morning since he had started work for the company. Thereafter, Satish Kalya told him everything about Chhota Rajan. Satish Kalya brainwashed him. Satish Kalya told him that Chhota Rajan would bear all the expenses of his ... 58 ... mother and that his company was number one in Mumbai. Satish Kalya told him that Ajay Gosaliya was the right hand man of encounter specialist of Pradeep Sharma. Satish Kalya told him that if Ajay Gosaliya is murdered, Chhota Rajan would be very happy. He, therefore, agreed for that and they left the place. On the next day, he telephoned Kaushik Rajgour. Kaushik Rajgour called him near his house. Kaushik Rajgour gave him Rs.5,000/- for purchasing a mobile phone and a SIM card. Kaushik Rajgour told him to give the mobile number to him so that he would give it to Satish Kalya. After about 5-6 days, he purchased a new cell phone and a SIM card in another person's name from his friend Sunil Varma. After making all the arrangement, he met Kaushik near his house. He had gone outside Maharashtra for bringing the weapon.
86. He had gone to Indore for purchasing 7.65 pistol and bullets. Satish Kalya had telephonically told him to arrange for the pistol and 20 cartridges. He contacted his friend Ashok Shrivastav who lives at Guna, Madhya Pradesh for getting the pistol. Ashok Shrivastav introduced him with one Rajendra Yadav @ Tiwari who was a supplier of pistol. He told him to give one 7.65 pistol. Rajendra Yadav told him that cost was Rs.12,000/- per pistol and one bullet would cost Rs.100/-. On the say of Satish Kalya, he told him to give two pistols and 20 cartridges. He contacted Kaushik Rajgour who told him to come near his house and when he went there, Kaushik gave him Rs.40,000/-. Thereafter, he went to Indore for purchasing the weapon. He took his friend Dinesh Thakur with him. He had met Rajendra Yadav @ Tiwari there. They were staying in a lodge at Indore. Rajendra Yadav @ Tiwari showed him two pistols and bullets. He gave the money to him and brought the two pistols and bullets. During that period, he developed friendship Rajendra Yadav @ Tiwari. Rajendra Yadav told him that there was some ... 59 ... land belonging to his father which was mortgaged and was to be released. He was in need of money. Therefore, he told him that one murder was to be committed for the Chhota Rajan gang. He agreed for that. Rajendra Yadav told him that there was one more person with him and he was also in need of money for the marriage of his sister. Rajendra Yadav told him this because he had asked him if some more persons were available for the work. He told him that if he committed murder for Chhota Rajan, money could be arranged for him. He told him to be ready and that he would contact him. Thereafter, he, his friend Rajendra Tiwari and Dinesh went to the temple of Mahakaleshwar. From there, he went to the lodge. He kept the weapon etc. in a bag in the lodge. He and Dinesh returned to Mumbai. The bag was with him when he returned to Mumbai.
87. He first went to his house with the weapon. Then he telephoned Kaushik Rajgour who called him to his office with weapon. He went there and gave the weapon etc. to him. After about 2-3 days, he received a phone call from Satish Kalya from Arthur Road Jail from the number which had 424 as its last digits. At that time, he had several mobile phones and 9-10 SIM cards. He did not remember the numbers but one mobile phone number was ending with '85', the other was ending with the digits '724'. He did not remember the other mobile phone numbers. Satish Kalya told him to come to J.J. Hospital. Accordingly, he went to the J.J. Hospital to meet him. Satish Kalya met him in the J.J. Hospital. He had come to the J.J. Hospital for discussing about the murder. At that time, Kaushik Rajgour and Arvind Shinde were also present there. Kaushik Rajgour gave the information about Ajay Gosaliya to Satish Kalya. Satish Kalya told him to bring two more weapons as Kaushik Rajgour had told him that Ajay Gosaliya had ... 60 ... bodyguards with him. Satish Kalya told him to arrange for one more person. He had stated that he had already arranged two persons. Satish Kalya told him to take money from Kaushik Rajgour for purchasing the weapon. This time, he was told to bring another weapon. It was '315 Katta' and '7.65 pistol' and 10 bullets of Katta and 10 bullets for 7.65 pistol. Satish Kalya told him to take the money from Kaushik Rajgour for purchasing the same. Satish Kalya also told Kaushik Rajgour to give money to him. On the next day, he called Kaushik Rajgour on phone and told him to give the money for bringing the weapons. After about 2- 3 days, Kaushik Rajgour called him to his office to take the money. He had gone to his office. Kaushik Rajgour gave him Rs.35,000/-. During that time, he also telephoned to Rajendra Tiwari and told him to arrange for the weapons and the bullets. He agreed to arrange for the same. On the same day, he received phone call from Satish Kalya, who told him to keep the persons ready and to call them whenever he says. He took Dinesh Thakur with him and went to Indore (Proper Indore). He booked a room in a lodge. Rajendra Yadav @ Tiwari came there with the weapons and the bullets. Rajendra Yadav @ Tiwari had two weapons and 20 bullets with him. He kept the weapons and bullets in the bag. Again, he returned to Mumbai. Rajendra Yadav @ Tiwari went to Guna. He also told Rajendra Yadav to be ready for the work. On the next day, he telephoned Kaushik Rajgour and gave the weapons to him. After about 3-4 days, Kaushik Rajgour told him that he had received a phone call from Satish Kalya that the shooters should be called for committing the murder. Before that, he had contacted Vilas Bharti and had told him that a murder was to be committed for the Chhota Rajan gang. Thereafter, he arranged for talk between Satish Kalya and Vilas Bharti. Vilas Bharti also agreed to commit the murder. On the instructions of Kaushik Rajgour, he told the persons from Madhya ... 61 ...
Pradesh to come to Mumbai. They told him that they did not have any money and that he should give some money to them first. He told this fact to Kaushik Rajgour. After about 2-3 days, Kaushik Rajgour deposited Rs.10,000/- in their account through Arvind Shinde. Kaushik Rajgour told him to call the people from Madhya Pradesh by 25th as on that day Ajay Gosaliya was going to visit a massage parlour. On the same day, he received a phone call from Prakash Nikam and Satish Kalya. They told him to test the weapons to find out whether they were in working condition or not. Thereafter, on the same day i.e. on 24 th he, Vilas Bharti and Prakash Nikam went to Urve, Navi Mumbai for firing practice. On the same day, he told the people from Madhya Pradesh to come to Mumbai by 25th. On 25th in the morning the people from Madhya Pradesh telephonically informed him that they have reached Mumbai. He telephoned Arvind Shinde and informed him to make arrangement for the shooters coming from Madhya Pradesh. Arvind Shinde took a car from Kaushik Rajgour and came to Fountain Hotel, Ghodbandar at 06.00 a.m. He also reached there on his motorcycle at around same time. He was having Hero Hunk Motorcycle bearing registration number 4466. He was in touch continuously with Rajendra Yadav @ Tiwari. Kaushik Rajgour was also in touch with Arvind Shinde. Thereafter, he and Arvind Shinde went to S.T. Stand, Thane for picking up the persons coming from Madhya Pradesh. At about 07.00 a.m., those persons got down from the bus. They were Rajendra Yadav @ Tiwari and Rohit Vishwakarma. They took them to the Fountain Hotel. When they were at Fountain Hotel, Kashik Rajgour also came there. Then, they discussed about the murder. At that time, Rajendra Yadav @ Tiwari and Rohit Vishwakarma demanded advance amount. At that time, Satish Kalya had also telephoned him and he informed Satish Kalya about the demand of Rajendra Yadav @ Tiwari and Rohit ... 62 ...
Vishwakarma. he made them to talk with Satish Kalya on phone. Satish Kalya assured them that Chhota Rajan will give money to all and they should not worry about it. Satish Kalya also brainwashed them. Thereafter, they agreed for the job. Kaushik Rajgour made lodging arrangement of shooters at Mira road in the house of his friend Sunil Bhanushali. He telephoned everybody and told them that on 25th Ajay Gosaliya was going to come to the massage parlor. Accordingly, on 25th at about 09.00 a.m., all of them reached the Fountain Hotel. Prakash Nikam and Vilas Bharti came there on a bike. He also went there on his bike. From there, all the three of them went to Thakur Mall, Dahisar. At that time, only three of them were present. Kaushik Rajgour called him and told him to come near his house. Since the morning, they were continuously in touch with each other on phone. Kaushik Rajgour told that Ajay Gosaliya was going to come at massage parlor at Lokhandwala, Andheri. Kaushik Rajgour told him that he was going ahead to keep a watch on Ajay Gosaliya. Kaushik Rajgour went to the spot in his Innova car. Kaushik Rajgour had arranged an Alto car for them. As per his instructions, they started for Lokhandwala, Andheri in the car. They first went near Thakur Mall, Dahisar. Kaushik Rajgour had given Rs.5,000/- to him. When they reached near Thakur Mall, Arvind Shinde telephoned Sunil Bhanushali and told him to drop the shooters who were in his house to Thakur Mall, Dahisar. Accordingly, the shooters came there in an auto. At that time, Arvind Shinde received a phone call from Kaushik Rajgour and then Arvind Shinde also left for Lokhandwala, Andheri. Since they had only two motorcycles, they left Rohit Vishwakarma in Thakur Mall and he, Prakash Nikam, Vilas Bharti and Rajendra Yadav went on the two motorcycles to Lokhandwala, Andheri. Kaushik Rajgour had told Arvind Shinde to collect the bag containing weapons during that period. Accordingly, Arvind Shinde ... 63 ... reached Lokhandwala with the bag containing the weapon. All the four of them also reached near the massage parlour at Lokhandwala. As per the instructions of Kaushik Rajgour, Prakash Nikam, Vilas Bharti and Rajendra Yadav @ Tiwari went inside the car and got themselves armed with the weapons. They were having two pistols and one Katta. During that time, Kaushik Rajgour was continuously getting some information about Ajay Gosaliya on phone and he was passing the information to Arvind Shinde. Arvind Shinde told him to stand near the massage parlour as Ajay Gosaliya was knowing him. Arvind Shinde told him that as soon as Ajay Gosaliya would come out of the massage parlour he would give the signal to him and then he should give the signal to the shooters namely Prakash Nikam, Rajendra Yadav and Vilas Bharti. They waited there till about 05.00 p.m. to 05.30 p.m. but Ajay Gosaliya did not come there. During that time, vehicle of police was patrolling in that area. Therefore, they dropped the plan. Thereafter, as per the instructions of Kaushik Rajgour, they met at a hotel in Andheri. At that time, he received a phone call from Satish Kalya from Arthur Road Jail. He had called him from a different number. Satish Kalya told him not to telephone him on his number 424 as he was in touch with Chhota Rajan continuously from that number. Satish Kalya informed that there was a message from Chhota Rajan that the job should be done expeditiously. Kaushik Rajgour told him to take the others for lunch at Thakur Mall and that he would join them after some time. Kaushik Rajguar also told Arvind Shinde to keep the weapon. Accordingly, he went to the Thakur Mall alongwith Prakash Nikam, Rajendra Yadav @ Tiwari and Vilas Bharti. From there, they contacted Rohit Vishwakarma. They had lunch there. On the same day, between 08.00 p.m. to 08.15 p.m. he received a phone call from Satish Kalya on his mobile phone number having last digits as 85. Satish Kalya had called him from a number which had last ... 64 ... digits as 20. Satish Kalya told him that he had a talk with Chhota Rajan and that Chhota Rajan had told him that the work should be done 100%. He said that Chhota Rajan had told that they would get so much money which were they can never dream of. He said that Chhota Rajan had told that his mother would be treated at Lilavati Hospital. Kaushik Rajgour came to the Thakur Mall at about 08.30 p.m. Kaushik Rajgour said that he would get the information about the Ajay Gosaliya next time. Kaushik also gave him Rs.5,000/- towards expenses. He gave that amount to Rajendra Yadav and Rohit Vishwakarma. Thereafter, Rajendra Yadav and Rohit Vishwakrma went to the house of Sunil Bhanushali in a car. On 26th, he made a phone call to Kaushik Rajgour. Kaushik Rajgour told him to shift Rajendra Yadav @ Tiwari and Rohit Vishwakarma to some other place as police was visiting the house of Sunil Bhanushali. Accordingly, he telephoned his friend Dinesh Thakur for making lodging arrangement of Rajendra Yadav @ Tiwari and Rohit Vishwakarma and shifted them to the farm house of Ashok Gharat at Navi Mumbai. At that time, the weapons were kept with Kaushik Rajgour.
88. On 26th between 03.00 p.m. to 04.00 p.m., Kaushik Rajaur sent a Innova vehicle. Arvind Shinde was driving it. The vehicle was sent for dropping the shooters at Navi Mumbai. Accordingly, the shooters were dropped in the farm house of Ashok Gharat at Navi Mumbai. Dinesh Thakur was told to make arrangement for their food, etc. On 27th, Prakash Nikam telephoned him and told him to get the weapons checked. Kaushik Rajgour was informed that they were going to practice firing. Kaushik Rajgour sent his Innova vehicle and the bag containing weapons through Arvind Shinde. Thereafter, he, Prakash Nikam, Arvind Shinde and Vilas Bharti went to Ulve, Navi Mumbai for ... 65 ... practicing firing. They practiced there near a mine. Thereafter, the weapons were kept with Rajendra Yadav @ Tiwari for oiling. At that time, Prakash Nikam told him to arrange for a four wheeler vehicle as the number of two wheeler was less and men were more. His friend Sukesh Shinde was a driver. He contacted him and told him about the murder which was to be committed for Chhota Rajan gang. At that time, Sukesh Shinde told him that Sunil Tiwari @ Piyush was his friend and that he would tell him to arrange for a vehicle as he was not in a position to come. Thereafter, all of them went to their respective house. On 27th at about 07.30 p.m., he received a phone call from Kaushik Rajgour. He informed him that Ajay Gosaliya was going to attend the meeting on the next day. Kaushik Rajgour told him to make all the arrangements. Accordingly, he telephoned all of them in the night. On the same day, he received a phone call from Satish Kalya from a different mobile number. Satish Kalya told him that the job should not fail and it was confirmed that Ajay Gosaliya was going to come for the meeting on the next day. Satish Kalya also told him that he was in touch with Chhota Rajan continuously on the mobile number having last digits as 424. In the night, he received a phone call from Sukesh Shinde who informed him that a four wheeler vehicle was arranged and Sunil Tiwari @ Piyush had joined the job to drive the vehicle.
89. On 28th August on the instructions of Satish Kalya, he activated one SIM card which was purchased in the name of Vilas Bharti. That mobile number was having last digits as 168. At about 09.00 a.m., he made a phone call to Kaushik Rajgour but he called him from another number and not from the number which had last digits as 168. Kaushik Rajguar had told him to keep everybody ready as the meeting was confirmed. Thereafter, he contacted Prakash Nikam, Vilas Bharti, ... 66 ...
Rajendrasingh Yadav @ Tiwari. He had called Rajendrasingh Yadav @ Tiwari on the number of Dinesh Thakur as the cellphone of Rajendrasingh Yadav was not in working condition. He also telephoned Sukesh Shinde for the vehicle. Sukesh Shinde told him that Sunil Tiwari @ Piyush would come with the vehicle by 10.00 a.m. at Thane. He called Prakash Nikam, Rajendrasingh Yadav @ Tiwari and Rohit Vishwakarma to Thane. Thereafter, he telephoned Kaushik Rajgour. Kaushik Rajgour called him near his house at Dahisar. He reached there at about 11.30 a.m. When he went there, Kaushik Rajgour told him that Ajay Gosaliya was going to have a meeting with Chetan Savala @ Desai who was the friend of Kaushik Rajgour. In his presence, Kaushik Rajgour telephoned Chetan Savala @ Desai and he was taking information about Ajay Gosaliya. Before that, he had given the car registration number to Prakash Nikam. It was a Tavera vehicle bearing registration number MH-04-ES-4792. He introduced Prakash Nikam and Sunil Tiwari @ Piyush so that they could proceed towards the spot. At that time, Sukesh Shinde was present with Sunil Tiwari @ Piyush. At the time when he had made a phone call to Dinesh Thakur to bring the shooters, the shooters Rajendrasingh Yadav @ Tiwari and Rohit Vishwakarma did not have any money. Therefore, he told Kaushik Rajgour to arrange for some money. Kaushik Rajgour deposited Rs.9,000/- in the account of Dinesh Thakur. The amount was deposited as there was no money in the account of shooters. He talked to Rajendrasingh Yadav @ Tiwari on the mobile phone of Dinesh Thakur and told him to bring the bag containing the weapon. Then, Dinesh Thakur brought Rajendrasingh Yadav @ Tiwari, Rohit Vishwakarma from the farm house at Urve, New Mumbai to Kalva as he had instructed Sunil Tiwari @ Piyush to pick them up from Kalva. Accordingly, they reached there in the car. Dinesh Thakur also came ... 67 ... there alongwith the two shooters and the bag containing the weapons. At that place, Dinesh Thakur withdrew Rs.9,000/- from his account from an ATM. Then he told Dinesh Thakur to give the money to Prakash Nikam. Thereafter, they shared the money among themselves. Dinesh Thakur kept Rs.1,000/- with him. Rs.8,000/- was given to Prakash Nikam and they shared the money amongst themselves. Kaushik Rajgour told him to call the shooters at Inorbit Mall, Goregaon. As he did not know the route properly Kaushik Rajgaru had told his friend Rakesh Bijam to lead them to the Inorbit Mall, Goregaon. He had his Hero Honda Hunk motorcycle with him. Rajkesh Bijam was his pillion rider. Kaushik Rajgour and Arvind Shinde went ahead in the Innova vehicle for taking the information about Ajay Gosaliya. He also instructed the others to reach at Inorbit Mall. At that time, he switched on his mobile number which was having last digits as 168. Thereafter, they all were in contact with each other through cellphones. The mobile phone of Prakash Nikam started with the digits as 950. After about one hour Prakash Nikam, Sunilkumar Tiwari @ Piyush, Rajendra Yadav @ Tiwari, Rohit Vishwakarma also reached in the Inorbit Mall in the Tavera vehicle. Vilas Bharti had also telephoned him and he told him to come to the Inorbit Mall. He told the Prakash Nikam to be ready as he was handling the work of firing. Prakash Nikam, Rajendra Yadav @ Tiwari and Rohit Vishwakarma armed themselves with weapons and tucked the loaded weapons at their waist. Prakash Nikam told Sunil Tiwari that after the firing he should drive the vehicle away from the spot with them. After sometime, Kaushik Rajgour telephoned Rakesh Bijam and called him near the 'Sabkuch Market'. At that time, one bodyguard of Kaushik Rajgour by name Vinod also came there. After some time, Kaushik Rajgour telephoned him from the number of Arvind Shinde which was having last digits as 70. He told him to come with the ... 68 ... others near 'Sabkuch Market'. As soon as he went there, Arvind Shinde hired a Rickshaw and told him to come with him. On his instructions, he told the driver of the Tavera vehicle to follow them. At that time, Vilas Bharti also telephoned him. Each of them had multiple mobile phones at that day except Rajendra Yadav @ Tiwari and Rohit Vishwakarma. He called Vilas Bharti near the Infinity Mall. He was driving his motorcycle. Only Arvind Shinde was in the Rickshaw. While going, in between they lost the sight of the Rickshaw. Therefore, Arvind Shinde telephoned him on his number ending with the digits as 168. Arvind Shinde told him to come near the Infinity Mall. He went there. The Tavera vehicle also came there. At that time, Vilas Bharti had telephoned him and he told him to come near Infinity Mall. Thereafter, Arvind Shinde told him that Ajay Gosaliya was inside the Mall. Arvind Shinde told him that Ajay Gosaliya was with Chetan Desai inside the mall. He told him that Chetan Desai was wearing a yellow colored T- Shirt. Arvind Shinde also told him that Ajay Gosaliya was wearing a Blue colored half shirt, Khaki jeans and that he was wearing lot of gold on his body. Arvind Shinde also told him that Ajay Gosaliya was having vermilion mark (tika) on his forehead. Thereafter, he went inside the Infinity Mall. Prakash Nikam and others took their positions. He searched for Ajay Gosaliya on the ground floor on the Infinity Mall but he could not find him. Therefore, he telephoned Arvind Shinde. Arvind Shinde told him to wait and that he would ask Kaushik Rajgour about it. Kaushik Rajgour was in touch with Chetan Desai and was taking information about Ajay Gosaliya and giving it to Arvind Shinde. Arvind Shinde was passing on the information to him. Arvind Shinde telephoned him and told him to go to the food court which was on the third floor of the mall. When he went there, he saw two persons matching the descriptions given to him. From there, he telephoned ... 69 ...
Arvind Shinde and gave him the description of the two persons whom he had seen. Arvind Shinde told him that the person wearing blue colored half shirt and having gold on his body and vermilion mark (tika) was Ajay Gosaliya and the person who was wearing yellow T- Shirt was Chetan Savala @ Desai who was the friend of Kaushik Rajgour. After getting the confirmation, he telephoned Prakash Nikam and gave him the entire description of Ajay Gosaliya. Chetan Savala @ Desai left the mall first. Thereafter, he followed Ajay Gosaliya. When Ajay Gosaliya was leaving the mall, he informed Prakash Nikam that Ajay Gosaliya was leaving the mall. He stayed in the mall for sometime. When he went outside the mall, saw the public running here and there and shouting 'firing ho gaya, firing ho gaya'. The firing was done by Prakash Nikam, Rajendra Yadav and Rohit Vishwakarma. After firing, Prakash Nikam, Rajendra Yadav and Rohit Vishwakarma fled away in the Tavera vehicle. Vilas Bharti missed the target as he could not get there on time. He hired an auto from the other gate of the mall. Arvind Shinde and Rakesh Bijam went on his motorcycle. He went to Malad station by hiring autorickshaw. From there, he went to Dahisar. From there, he telephoned Kaushik Rajgour from a PCO. Kaushik Rajgour told him that job had failed and that Ajay Gosaliya had survived. It had taken him about 45 minutes to reach Dahisar. He had telephoned Kaushik Rajgour after reaching Dahisar. He also told him that he would get the news confirmed. From there, he telephoned his friend Nitin Qureshi. He told him to watch the news about Ajay Gosaliya and to tell if he was dead or alive. Nitin Qureshi told him that he will see the news. Thereafter, he telephoned Kaushik Rajgour. At that time, Kaushik Rajgour gave him Rs.10,000/- through Arvind Shinde and told him to give it to Rajendra Yadav @ Tiwari and Rohit Vishwakarma. Kaushik Rajgour also told him not to make any call on the phone of Arvind ... 70 ...
Shinde as the phone of Arvind Shinde was with him. He told him to wait near a temple at Dahisar and that Arvind Shinde would come there with the money. After sometime, Arvind Shinde came there and he gave him Rs.10,000/-. Arvind Shinde also told him that Rakesh Bijam would return his motorcycle after sometime.
90. He received a phone call from Satish Kalya from jail in the evening. He told him that the firing had taken place. Satish Kalya asked him whether Ajay Gosaliya had died. He told him that he was not sure and that he had told his friend to see the news. At that time, Satish Kalya told him that he had messaged Chhota Rajan and after talking to him their money will be given. Thereafter, he telephoned Dinesh Thakur and asked him whether Rajendra Yadav @ Tiwari had come there. Dinesh Thakur told him that Rajendra Yadav @ Tiwari did not come there. From there, he went to his house. After going to his house, he narrated the incident to his wife. He saw the news on TV. There was one news about firing on Ajay Gosaliya. On the next day, he again received a phone call from Satish Kalya who told him that Chhota Rajan was very angry as the job had failed. Satish Kalya told him that he would convince to Chhota Rajan. On the same day in the morning he telephoned Dinesh Thakur and told him to take Rs.3,000/- from Ashok Gharat and to give it to Rajendra Yadav @ Tiwari and Rohit Vishwakarma and to send them to their village. On the next day, heI went to the house of his friend Nitin Qureshi at Thane. At that time, he had purchased a newspaper in which there was a news item about Ajay Gosaliya. He had taken some money from his friend Nitin Qureshi. From there, he contacted the brother of Prakash Nikam. Thereafter, he met Prakash Nikam at Mumbra railway station. Prakash Nikam was having his motorcycle with him at that time. Prakash Nikam told him ... 71 ... that Chhota Rajan was very angry and that the job ought to have been completed. He then told him about how they committed the act of firing. Prakash Nikam told him that the persons Rajendra Yadav @ Tiwari and Rohit Vishwakarma from Uttar Pradesh did not do their work properly and because of that, Ajay Gosaliya survived. Praksh Nikam told him that as soon as Ajay Gosaliya came out of Infinity mall, he (Prakash Nikam) abused him by calling him by his name. Prakash Nikam told him by the time, Ajay Gosaliya turned back, he had started the firing. He told him that after he had done the firing, Rajendra Yadav @ Tiwari and Rohit Vishwakarma fired. He told him that the bag containing the weapons was with him. From there, both of them went to the house of Dinesh Thakur at Dombivali. Thereafter, all the three of them went to a Bar. At that time, he had spoken to Rajendra Yadav @ Tiwari on phone. He also narrated the incident to him. Rajendra Yadav asked him about the payment of money. He told him that Chhota Rajan was angry as the job had failed and that Satish Kalya was going to convince Chhota Rajan and to arrange for the payment. At that time, Prakash Nikam had told him that Kaushik Rajgour and Arvind Shinde were arrested. From there, he went with Prakash Nikam to the farm house of Ashok Gharat at Urve, New Mumbai. They stayed there overnight. On the next day in the morning, they went to a Dhaba for having breakfast. While returning, they saw that the police was bringing Kaushik Rajgour and Arvind Shinde to the farm house. On seeing them, they sped away from that place on his motorcycle. From there, went to Vashim which was an area in which Prakash Nikam was residing. As they did not have money, Prakash Nikam told his friend Ajay Thorat whether he had a customer to purchase the weapon. Prakash Nikam gave two pistols and bullets to Ajay Thorat for selling. The pistols were used in the firing of Ajay Gosaliya. Ajay Thorat took the bag containing ... 72 ... the pistols. The customer was an informer of police which fact Ajay Thorat was not knowing. The informer got Ajay Thorat arrested through the police Unit No.8 alongwith the weapons. Prakash Nikam told him about the arrest of Ajay Thorat and about the seizure of weapons by the police DCB CID Unit No.8 at Andheri. Thereafter, Prakash Nikam took Rs.10,000/- from his friend. From there, they went to Bhimashankar for darshan. At that place, Prakash Nikam received a phone call from Satish Kalya. Satish Kalya told Prakash Nikam that he would arrange for a talk between him and Chhota Rajan and that he should separate from him and go away. Accordingly, Prakash Nikam left him there. He went to Goa and started working there in a hotel at Madgaon. The hotel belonged to his friend Sudesh Raikar. He destroyed all his mobile phones and SIM cards in Goa due to fear of police. After some days, when returned to his house to meet his wife, he was arrested by the police.
91. He stated that he also used to talk to Chhota Rajan when he was in Arthur Road Jail. He stated that he had talked to Chhota Rajan through Satish Kalya. He stated that Chhota Rajan had abused him heavily as the job was not successful. He identified Kaushik Rajgour, Arvind Shinde. He states that Rajendrasingh Yadav @ Tiwari is not present in the Court. The witness has identified Rohit Vishwakarma, Sunilkumar @ Piyush Tiwari, Vilas Jitendra Bharti, Prakash Nikam, Rohit Joseph @ Satish Kalya.
92. Beside the above said facts narrated by him during his evidence, he also identified the Article i.e. Pistol, Cartridges, clothes of the injured etc. So also, during his evidence the CCTV footage in Article-41 played in the Court and he identified himself, the injured and other accused in ... 73 ... the CCTV footage. Even, he identified himself and the other accused in the CCTV footage in the Thakur Mall. Now, the first question arose about the reliability of the PW.1. Apparently, he was one of the accused in this crime. During his evidence, he specifically narrated each and every minutes as to how he engulfed into the criminal activities. His evidence is very specific that he came in contact with the gangster Jagdish Shetty through his friend Shailesh Nalla, then, with Ravi Mallesh Bora @ D.K. Rao and when he was lodged in Arthur Road Jail, came in contact with Rohit Tangappan Joseph @ Satish Kalya. He deposed that for the treatment of his mother, who was suffering from blood cancer, he was in need of money. As and when, D.K. Rao helped him by giving money for the treatment of his mother the Doctor has suggested him the expenses of Rs.5,00,000/-. D.K. Rao unable to provide him that much help and asked him to contact with accused No.1-Kaushik Rajgour, who suggested him to contact with accused no.9- Satish Kalya, who was in form at that time. Accused no.1-Kaushik Rajgour also informed the date when accused no.9-Satish Kalya was to be produced in Kila Court. Accordingly, he went there and met with Satish Kalya. From the evidence of PW.1-Approver, this is the beginning of the conspiracy, as accused no.9-Satish Kalya told him that he will get money if he did some work of Chhota Rajan, to commit a murder. Accused no.9-Satish Kalya also told him to arrange for 2 to 3 persons and weapons from Uttar Pradesh. PW.1-Approver agreed to arrange for the people and weapon for committing murder. Again, accused no.9- Satish Kalya told him to come Arthur Road Jail Gate. When he went there, he met with accused-Satish Kalya who also introduced him with accused-Prakash Nikam. At that time, accused no.1-Kaushik Rajgour and accused no.2-Arvind Shinde were also present. Accused no.9-Satish Kalya told him that accused no.8-Prakash Nikam will handle the work ... 74 ... of firing and accused-Kaushik Rajgour would give the financial help and Ajay Gosaliyaya was to be murdered. Accused no.9 Satish Kalya told him that if Ajay Gosaliya dies, the Chhota Rajan Gang will be benefited. He also told that Ajay Gosaliya was old enemy of Chhota Rajan and earlier, attempt to kill him had failed. As the police had arrested the persons who had come to kill Ajay Gosaliya. This much part of the evidence of the Approver suggest that the conspiracy was hatched out of the gate of the Arthur Road Jail for doing the illegal act of committing the murder of Ajay Gosaliya and there was meeting of mind of accused- Satish Kalya, Prakash Nikam, Kaushik Rajgour, Arvind Shinde including PW.1-Approver. His evidence also does and did suggest that the conspiracy was hatched at the instance of accused-Chhota Rajan for the benefit of his gang.
93. Towards the fulfillment of the illegal act, the accused-Satish Kalya told PW.1-Approver to purchase 4 to 5 mobile phones and SIM card in the name of other persons. Accused-Satish Kalya also told him that he would contact him from jail and give the details. They had exchanged their mobiles. He was also told that Chhota Rajan would bear all the expenses of the treatment of his mother. Thereafter, PW.1-Approver categorically stated about the incident as to how accused no.1-Kaushik Rajgour paid money to him for the purpose of purchasing the weapons. Then, he went to Indore, came into contact with accused-Rajendra Yadav @ Tiwari and Rohit Vishwakarma. They also agreed to take part in the commission of the offence. He brought the weapon pistol and cartidges to Mumbai and joined accused-Vias Bharati in the conspiracy. On the basis of information given by accused-Kaushik Rajgour, once they planned to attack on Ajay Gosaliya at the massage parlor. They made practice firing at the farm house of Ashok Gharat at Ulve, New ... 75 ...
Mumbai and then stated in detail about the incident dated 28.08.2013 in firing on injured PW.33-Ajay Gosaliya at the Gate of the Infinity Mall. His evidence is specific that the mind behind the commission of the offence is of accused-Chhota Rajan and Satish Kalya, the accused- Kaushik Rajour financially helped them and gave information about the injured-Ajay Gosaliya. Accused-Arvind Shinde assisted them for the commission of the offence. The accused-Prakash Nikam, Vilas Bharati, Rajendra Singh Yadav @ Tiwari, Rohit Vishwakarma took the task to execute the firing. The accused-Sunil Tiwari drives the vehicle to carry the assailant to the spot of the incident to make the way of their escape. Though, accused-Vilas Bharati was part of the conspiracy, but, he missed the target, as he could not reach in time to the spot.
94. From the evidence of the PW.1-Approver, there is reason to believe that he has actually taken part in the commission of the offence. He knows and stated the minutes in detail towards the commission of offence and kept no stone unaltered.
95. It is argued by the learned Advocate Mr. Pasbola that the person who himself is an accused cannot be believed. It is argued that PW.1- Amit Sinha is having criminal background. Attention is drawn towards his cross-examination, wherein, he admit that the case number 138 of 2010 was registered against him at Wagle Estate Police Station for committing theft of motor cycle. He also admit that case no.138 of 2010 was registered against him at Navhgar Police Station under sections 307 of the IPC and Section 3,25 of the Arms Act. Case no.25 of 2008, registered against him at Crime Branch, Unit-4, under sections 387, 452 of IPC and section 3,25 of the Arms Act. A case no.308 of 2010 registered against him at Nerul Police Station under section 394, 34 of ... 76 ... the IPC. Case no.29 of 2008 registered against him under sections 143, 147, 148, 149, 387, 506(2) of IPC. Case no.48 of 2008 was also registered against him at Crime Branch, Unit-4. Such admissions about involvement of PW.1-Amit Sinha in the other offences also taken in the cross-examination of Advocate Mr.Shetty and Advocate Mr.Anshuman Sinha. Buttressing on these admissions, it is argued by the learned Advocate Mr.Pasbola and Adv. Mr. Shetty that the said witness is not reliable and unworthy of credit. It is not in dispute that the accused is having criminal past. This fact is also admitted by him. Only because he is one of the accused in the offence and agreed to make full and true disclosure of the whole of the circumstances within his knowledge relating to the offence, pardon was tendered to him. Being an accomplice, he is the competent witness. No doubt, he is having criminal past, but, it is required to see whether he has narrated the full and true facts relating to the offence within his knowledge and not suppress anything. The fact that he was having criminal past and so many criminal offences are registered against him will not discard his testimony and will not sufficient to challenge his reliability, more particularly, when he has made full and true disclosure relating to the offence. Therefore, this ground raised by the defence do not holds any substance.
REPENTANCE AND DELAY 96. The learned Advocate for the defence strenuously argued that nowhere PW.1-Approver stated about the reason for his repentance either in his statement (Exh.86), deposition (Exh.89) or the written statement (Exh.93) nor, during his evidence. Certainly, during his entire evidence the Approver PW.1-Amit Sinha has not stated the reason for his repentance. However, in the cross-examination he admit that he was ... 77 ... repenting for what he did. He admit that after the incident, he had quarreled with his wife, then he started repenting for what he had done. He told about his repentance to his family, but, not discussed about his repentance with any of the inmates in jail. It is argued by the learned Advocate Mr.Pasbola that if the accused felt repenting after the incident, then why he made application (Exh.86) on 01.06.2015 i.e. after two years of his arrest, to turn himself as an Approver. It is argued that this delay has raised serious doubt about the reliability of the Approver. It is argued that the PW.1-Amit Sinha become Approver only with a view to avoid punishment and to release from custody.
97. The learned Advocate for the accused draw attention towards the cross-examination of PW.52-API Chimaji Adhav and PW.54-ACP Arvind Mahabadi, who admit that during their interrogation, the accused-Amit Sinha nowhere expressed his desire to confess. It is argued that if that be so then there was no reason for PW.1-Amit Sinha to become Approver and this has substantiated the defence that in order to escape from the liability/punishment, PW.1-Amit Sinha turned himself as an Approver. It is pointed out that the Approver-PW.1 stated that after the incident, he went to Goa and started working there in a hotel at Madgaon. He also stated that he destroyed all his mobile phones and SIM card in Goa due to fear of Police. Therefore, it is argued that if at all Approver PW.1-Amit Kishor Sinha was repenting for his act then he must not have gone to Goa, suppressed his identity and destroyed the mobile phones and SIM cards. This has tends to show that Approver- PW.1 is lying.
98. It may be the fact that the PW.1-Approver admitted in his cross- examination that nowhere in the applications, Exh.85, 86, Exh.89, 93 ... 78 ... he stated about the reason for his repentance, but, he admitted in his cross-examination that during his 19 months custody, he was repenting and he wanted to tell everything to the Court and the Police. He specifically admit that he took the decision of filing application (Exh.65) i.e. transfer from Taloja Jail) after completing the reading of seven puranas. Further, he admit that he was reading the puranas as he was repenting. He also admit that he did not feel like repenting till reading puranas. He volunteered that he wanted to follow the path of truth. It is necessary to point out here that the Approver-PW.1 cross-examined by Advocate Mr.Anshuman Sinha on Puranas and other Hindu 'holy granthas' in detail. PW.1-Approver stated that there are 18 puranas and he read Bhagwat Purana, Gurada Purana, Shiv Purana, Kurma Purana, Varsha Purana, Vaman Purana and Narsimha Purana. He also partly read the Agni Purana and was reading the Skand Purana. During cross- examination, he mostly answered the questions put to him to testify his knowledge about the Puranas. The facts stated by Approver-PW.1 in reply to his cross-examination, did inspire confidence that in the jail, PW.1-Approver was reading the Puranas as he was felt repenting.
99. In the cross-examination, Approver-PW.1 admit that he was aware that if he become an Approver, he will not be punished. Therefore, it is argued that the Approver was well aware about the provision of granting pardon and to get benefit of the same deposing lie against the other accused. If it is believed that the Approver was well aware about the provision of the Cr.P.C. and Evidence Act about grant of pardon to the Approver then it is also required to believe that he was aware that till the conclusion of the trial, he may not be released from jail. In such situation, if the trial is not concluded, there is no possibility of him to be released from jail. Consequently, this defence of the accused is not ... 79 ... probable. No doubt, there is delay in tendering the pardon, but, the Approver has properly explained the delay. Thus, for the reason of delay his testimony cannot be disbelieved. When he was asked whether to turn as an Approver is his own decision ?, he answered that he only wanted to tell the truth to the Court. He further admit that it did occur to him that he should confess and undergo punishment. This is appealing to mind to believe that the Approver PW.1-Amit Sinha was really repenting for his misdeeds.
WHY NOT CONFESS IN OTHER OFFENCES ? 100. The learned Advocate Mr.Pasbola and Mr.Shetty strenuously argued that there are so many offences registered and cases pending against the accused, but except this offence, he has not confessed in any other offence. Attention is drawn to his cross-examination, wherein, he admit that in all other cases, he had neither given any confession nor had turned an Approver nor prayed for being an Approver. Therefore, it is argued that only with a view to avoid punishment and to release himself from jail, the Approver is deposing false against the accused. Apparently, the Approver-PW.1 admitted that he did not give any such statement/confession in any other offence. He volunteers that he was falsely implicated in other cases. Further, he stated in the cross- examination itself that according to him, he had committed only one offence and therefore, there was no question of pleading guilty or acting as an Approver in other cases. This assertion of the Approver sounds quite reasonable and probable. It is also argued that in other cases, the Approver was on bail, which he also admit and therefore, in order to get himself release from jail he took the decision malafidely to become an Approver. It may be so, but, the fact remains that the other offences are registered against him and the sword is always hanging of being tried ... 80 ... and convicted in those offences, still he did not confess in those offences. Therefore, it is inappropriate to say that the Approver in order to get himself released from jail, extended wish to tender pardon.
OMISSIONS AND CONTRADICTIONS. 101. The learned Advocate for the accused vehemently argued that the evidence of the PW.1-Approver is full of omissions and contradictions. It is argued that the PW.1-Approver has exaggerated his version, as such, he cannot be said as a reliable witness and it is not safe to rely on his evidence. Attention is brought towards the omissions and contradictions brought during the cross-examination of Advocate Mr.Pasbola and Adv.Mr.Deshpande. The omissions are brought on record in respect of the statement recorded by the Police of the Approver, the statement/deposition of the Approver recorded in Court (Exh.89) and the written statement (Exh.93) submitted by the Approver after he tendered pardon. The learned Advocate Mr.Pasbola brought the omissions in the statement recorded before the Court in para-85 to 98, 100 & 102, whereas, learned Advocate Mr.Deshpande brought the omissions in the statement to the Court from para-103 to 141.
102. The learned Advocate Mr.Deshpande also brought the omissions in the statement recorded by Police of the Approver during interrogation on 03.11.2013. It is argued by Adv. Mr.Deshpande that these omissions are material and fatal to the core of prosecution case. On this, the learned SPP Mr.Gharat argued that Section 161 of the Cr.P.C. provides for recording statement of witnesses and said statement only can be used for omissions and contradictions. It is argued that the statement dated 03.11.2013 of Approver PW.1-Amit Sinha is recorded in the capacity of accused by the Investigating Officer and in order to ... 81 ... further the investigation. It is argued that though it is a previous statement, but, not of a witness as per Section 161 of the Cr.P.C. and therefore, the same is not made available for contradiction under Section 162 of the Cr.P.C. and even as per Section 145 of the Indian Evidence Act. Per contra, the learned Advocate Mr.Pasbola argued that as per Section 145 of the Indian Evidence Act, the witness can be cross- examined as to his previous statement made by him and as per Section 155(3) of the Indian Evidence Act, the credibility of the witness can be impeached by proof of former statement inconsistent with any part of his evidence which is liable to be contradicted. Therefore, by putting the omissions in the statement recorded by police of the Approver, the accused are within their right to use the previous statement recorded by police to impeach the credibility of the witness. The learned Advocate Mr.Pasbola relied on the judgment of the Hon'ble the Privy Council in the matter of Pakala Naryana Vs. King-Emperor reported in 43 C.W.N. Page 473 wherein, it is held that, “The bar to the admissibility of a statement made to a police officer, contained in Section 162 of the Code of Criminal Procedure, applies even when it is a statement made by a person who, at the time it is tendered in evidence, is an accused person.”
In fact, the above observation is made in answering to a question whether a statement made by the accused to the Police before his arrest was protected by Section 162 of the Code of Criminal Procedure. It implies that the accused can be confronted with his statement which was recorded by the Police before his arrest. This is not the situation in this case. Here the Approver was an accused when his statement was recorded by police.
103. The learned Adv. Mr. Sudeep Pasbola for accused nos.1 and 10 ... 82 ... further relied on the judgment of Hon'ble Apex Court in the matter of Rameshwar s/o. Kalyan Singh Vs. the State of Rajasthan reported in AIR (39) 1952 Supreme Court 54, wherein, it is held that “Section 157 states that--- "In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved." The section makes no exceptions, therefore, provided the condition prescribed, that is to say, "at or about the time etc.," are fulfilled there can be no doubt that such a statement is legally admissible in India as corroboration. The weight to be attached to it is, of course, another matter and it may be that in some cases the evidentiary value of two statements emanating from the same tainted source may not be high, but in view of section 118 its legal admissibility as corroboration cannot be questioned. To state this is, however, no more than to emphasis that there is no rule of thumb in these cases. When corroborative evidence is produced it also has to be weighed and in a given case, as with other evidence, even though it is legally admissible for the purpose on hand its weight may be nil. On the other hand, seeing that corroboration is not essential to a conviction, conduct of this kind may be more than enough in itself to justify acceptance of the complainant's story. It all depends on the facts of the case. ”
104. The learned Advocate Mr.Pasbola further relied on the unreported judgment of the Hon'ble Bombay High Court in Criminal Writ Petition no.3817 of 2013 decided on 16.07.2014 in the matter of Jafar Ismail Shaikh Vs. State of Maharashtra and another, wherein, the order of the Sessions Court permitting to confront the witness in regard to the statement recorded in another proceeding, in which he was an accused. The Hon'ble High Court only made observation in para no.4 that “needless to mention that in Sessions Case no.635 of 2010, PW.10 was ... 83 ... cited as a witness and not as an accused and, therefore, it would be a statement under Section 161 of Cr.P.C. and she was rightly confronted with the said statement.”
105. Certainly, the statement dated 03.11.2013 recorded by the Police of the Approver, when he was an accused in this crime. The Approver came to be arrested in the offence on 30.10.2013 and thereafter, his statement was recorded by the Police. Apparently, this is not the statement recorded by the Police of a witness under Section 161 of the Cr.P.C. In view of Section 161 of the Cr.P.C., any Police Officer making an investigation may examine orally any person supposed to be acquainted with the facts and circumstances of the case. On this aspect, it is necessary to opt to rely on the judgment of Hon'ble Supreme Court in the matter of Narayan Chetanram Chaudhary Vs. State of Maharashtra reported in AIR 2000 Supreme Court 3352 wherein, while discussing on the alleged improvements and contradictions in the statement of the Approver recorded by Police on 15.10.1994 during investigation, it is held that, “It may be kept in mind that what was stated by him on 15.10.1994 was not the statement of PW.2 in terms of Section 161 of the Cr.P.C. but was only the substance of the interrogation recorded by the investigating officer. The aforesaid statement cannot, in any way, be termed to be a statement recorded under Section 161 which could be used for the purpose of contradiction of the witness under Section 162 of the Cr.P.C.”
Thus, in view of the above ratio laid down by Hon'ble Supreme Court, the previous statement of the Approver recorded being an accused during the course of investigation cannot be said as a statement recorded under Section 161 nor being recorded under Section 162 ... 84 ...
Cr.P.C. Therefore, the same cannot be used for the purpose of contradiction of the Approver under Section 162 Cr.P.C. This case law is perfectly applicable to the facts and circumstances of the present case. In this view, the omissions brought on the record by the defence during the evidence of the PW.1-Approver in the statement recorded by police, cannot be of any help or used to make his testimony unreliable.
106. In the aforecited judgment of Narayan Chetanram Chaudhary (cited supra), the Hon'ble Apex Court while discussing about the importance of omissions and contradictions also held that “Para 40 : Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statement, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW.2. Even if there is contradiction of statement of a witness on material point, that is no ground to reject the whole of the testimony of such witness.”
In the light of above pronouncement, even if there are some contradictions and omissions in the statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness and it would not render the testimony of such witness unreliable.
107. The learned Advocate of the accused strenuously argued that not ... 85 ... only there are omissions/contradictions in the statement recorded by the Police, but, there are material omissions/improvements in the statement recorded by the Court (Exh.89). Attention is drawn towards the cross-examination from para 85 to 102 and para 103 to 141 of the PW.1-Approver. There are also contradictions brought in the statement (Exh.89) vide portion marked A to D. The portion A is pertaining to destroying the mobile number and SIM card after he contacted his wife and came to know that police visited his house. In fact, during his evidence, he stated that he went to Goa and started working there in Hotel at Madgaon, thereafter, he destroyed all his mobile phones and SIM cards in Goa due to fear of Police. At the most, the contradiction is after going to Goa, he destroyed the mobile phones and SIM cards, but, fact remains that he destroyed his mobile phones and SIM cards due to fear of Police. This may somehow contradict the version of PW.1, but, no due weightage can be attached to it, as it will not change the fact of destroying of mobile phone and SIM cards. Similarly, the portion marked 'B' is regarding the pistol and bullets showed by accused- Rajendra Tiwari in the lodge and Approver handed over the amount to Rajendra Tiwari and brought the pistol and bullets. The portion marked 'C' is pertaining to the visit at Guna, Indore and stayed in the very same lodge. In fact, PW.1-Approver himself made clear in the cross- examination itself that he never went to Guna, Madhya Pradesh and he stayed at the lodge at Indore. Whatever transaction of giving money and taking pistol and bullets from accused-Rajendra Tiwari was taken place at Indore. This contradiction could not shake or bring into doubt the testimony of the Approver about his visit to Indore and purchase the pistol and bullets from accused-Rajendra Tiwari. The portion marked 'D' is pertaining to the contact made by the accused-Kaushik Rajgour with the Approver and then asking him to get the weapons checked and to ... 86 ... see whether those are workable or not. Attention is drawn towards of evidence of PW.1-Approver, wherein, he stated that Prakash Nikam and Satish Kalya asked to test the weapon to find out whether those were in working condition or not. As such, the contradiction is pertaining to the person who told to make the test firing. Certainly, there is contradiction regarding the name of Kaushik Rajgour or Satish Kalya and Prakash Nikam, however, there is no contradiction regarding the fact that they went to Ulve, Navi Mumbai for firing practice. Thus, these contradictions are not material and sufficient to disturb the core of the prosecution case.
108. The learned Advocate of the accused also pointed out that there are material omissions in the statement (Exh.89) recorded by the Court which makes the testimony of PW.1-Approver unreliable. Certainly, there are omissions rather exaggerations made by PW.1-Approver. However, said exaggerations are made in continuation with the facts of the incident narrated by him. The so called improvement are in fact the details of the narration extracted by the Public Prosecutor during his examination-in-chief rather the PW.1-Approver expressed in detail during his evidence. There is no material improvements much less contradiction in the deposition made by him after being granted pardon. Whatever deposed by PW.1-Approver is in consonance with his earlier statement (Exh.89) recorded by the Court. Moreover, the PW.1- Approver himself stated in his cross-examination that the contents of the written statement (Exh.93) are written or given by him to the Court in addition to his evidence or statement made earlier. No doubt, the witness can be confronted on the written statement (Exh.93), but, as per the version of PW.1-Approver, it is in addition to his evidence. Fact remains that, by way of written statement (Exh.93), the PW.1-Approver ... 87 ... made an attempt to make a full and true disclosure of the facts related to the offence. In such circumstances, his evidence cannot be disbelieved, rather, inspires confidence and found to be reliable and trustworthy.
ROLE OF EACH ACCUSED DISCLOSED BY PW.1-APPROVER AND CORROBORATIVE EVIDENCE. ROLE OF ACCUSED-SATISH KALYA 109. It has come in the evidence of Approver-PW.1 that when he was lodged in Arthur Road Jail, he came in contact with Rohit Tangappan Joseph @ Satish Kalya. Thereafter, when his mother was become ill, he asked for help to D.K. Rao, but, he did not help and rather suggested him to contact with Satish Kalya. Accordingly, he met accused-Satish Kalya at Kila Court and told his problem. Accused-Satish Kalya told him that he would get money if he do some work of Chhota Rajan and to commit a murder. He specifically deposed that Satish Kalya told him to arrange for 2 to 3 persons and weapons from Uttar Pradesh. Satish Kalya also told him to come to Arthur Road Jail Gate. He went to meet him at Arthur Road Jail where Satish Kalya introduced him to Prakash Nikam. At that time, Kaushik Rajgour and Arvind Shinde were also present there. Satish Kalya told him that Ajay Gosaliya was to be murdered and if he dies, Chhota Rajan Gang would be benefited. Satish Kalya told him that Prakash Nikam was handling the work of firing, Kaushik Rajgour would give the financial help and information about Ajay Gosaliya. Satish Kalya also told him to purchase 4 to 5 mobile phones and SIM cards. Accordingly, they exchanged their mobile phones. He specifically deposed that Satish Kalya told everything about Chhota Rajan, brainwashed him and told that Chhota Rajan would bear all the expenses of his mother. ... 88 ...
110. The aforesaid evidence of PW.1-Approver indicates the hatching of conspiracy of committing murder of Ajay Gosaliya at the behest of accused-Satish Kalya and the man behind curtain was Chhota Rajan. It is necessary to point out here that there are absolutely no contradictions and omissions in the aforesaid evidence adduced by PW.1-Approver. The PW.1-Approver was cross-examined in detail about the procedure to be adopted while visiting the prisoners in the jail. PW.1-Approver admitted that only blood relatives and the person having identify proof can be permitted to visit the inmates of the prison. There is no dispute about that however, the evidence of PW.1-Approver is very specific that he met with accused-Satish Kalya at Kila Court and then the meeting was held outside the gate of Arthur Road Jail where there was agreement took place to commit murder of Ajay Gosaliya and there was meeting of mind between Satish Kalya, he himself, Prakash Nikam, Kaushik Rajgour and Arvind Shinde. The ld. Adv. Mr. Deshpande argued that the prosecution has not examined any witness of the escort party nor the IO made any investigation in this regard. There may be some lapses on the part of the investigation agency, but such discussions or talk could not have been made loudly, so also it is not expected that the escort party should know the visiting persons.
111. The fact that PW.1-Approver was lodged at Arthur Road Jail for a particular time also not disputed by the defence. In fact, the defence itself brought on record about the previous cases instituted against the PW.1-Approver and the period of his lodging in jail. As such, the fact that he came in contact with accused-Satish Kalya in the Arthur Road Jail cannot be disbelieved. ... 89 ...
112. An attempt is being made during the cross-examination of PW.1- Approver that he was not at all in need of money for the treatment of his mother. It is also brought in his cross-examination that his father was doing the photography business, deriving income from it and was able to make expenses for the treatment of his mother. The reason for putting such questions to PW.1-Approver was to show that there was no need for him to approach to D.K. Rao and even, Satish Kalya for monitory help for the treatment of his mother. However, PW.1-Approver denied the same. The evidence of PW.1-Approver did inspire confidence that he approached to the D.K. Rao and accused-Satish Kalya for the expenses of the treatment of his mother and to fulfill the same, he agreed to join the conspiracy and arrange for the weapon and people for the act of firing and committing murder of Ajay Gosaliya.
113. Further, PW.1-Approver specifically deposed that on the say of Satish Kalya, he told that Rajendra Yadav @ Tiwari to supply 2 pistols and 20 cartridges. He had also meet accused-Satish Kalya at Sir J.J. Hospital where Satish Kalya told him to bring two more weapons and to arrange one more person as Ajay Gosaliya had bodyguards with him. He stated about the phone calls received from the accused-Satish Kalya who told him to keep the person ready. He also deposed that he arranged talk between accused-Vilas Bharati with accused-Satish Kalya. On making demand of money by accused-Rajendra Yadav @ Tiwari and accused-Rohit Vishwakarma, he made them to talk with the accused- Satish Kalya on phone, who assured them that Chhota Rajan will give money to all and they should not get worry about it. Accused-Satish Kalya also told PW.1-Approver on mobile phone that he had talk with Chhota Rajan and that Rajan had told him that the work should be done 100%. Satish Kalya again called him and told that the job should not ... 90 ... fail and it was confirmed that Ajay Gosaliya was coming for the meeting on the next date. He specifically deposed that on 28th August on the instructions of Satish Kalya he activated one SIM card which was purchased in the name of Vilas Bharati. Even after the incident, Satish Kalya made a phone call to him and asked whether Ajay Gosaliya had died. He also told that he had messaged Chhota Rajan and after talking to him their money will be given. On the next day, again he received a phone call of Satish Kalya who told him that Chhota Rajan was very angry as the job had failed. Lastly, in his presence, Prakash Nikam received phone call of Satish Kalya who told him that he would arrange for a talk between him and Chhota Rajan and that Prakash Nikam should separate from him and go away.
114. This evidence of PW.1-Approver clearly point out the involvement of the accused-Satish Kalya in the offence. His evidence is very specific that act of committing murder of Ajay Gosaliya was arranged by accused-Satish Kalya at the behest of accused-Chhota Rajan. It is the defence of the accused that PW.1-Approver himself is the main brain behind this offence. He is the only person who wants to create terror of his name in the underworld and for that purpose, he himself executed the act and falsely involved the accused in the offence. This suggestion itself indicates that the incident was happened, but, the accused are taking defence that they are not involved in the offence. On the other hand, suggestions are given to PW.1-Approver that he is deposing false at the behest of the Informant-Ajay Gosaliya as he is providing money to the family of the PW.1-Approver. This defence is altogether contrary to the earlier defence raised by the accused. A suggestion was also given to PW.1-Approver that due to enmity with accused-Satish Kalya he is deposing false. However, to make this defence probable, nothing is ... 91 ... brought in the cross-examination that there was any enmity between accused-Satish Kalya and PW.1-Approver. Thus, there is no foundation to this defence.
ROLE OF ACCUSED-KAUSHIK BALDEV RAJGOUR AND ACCUSED- ARVIND @ ARVYA PANDURANG SHINDE 115. It has come in the evidence of PW.1-Approver that he came in contact with Kaushik Rajgour through D.K. Rao in the Jail during interview time. D.K. Rao told him that Kaushik Rajgour belong to his company i.e. Chhota Rajan Company. PW.1-Approver told Kaushik Rajgour that after his release on bail, he should give a job to him on which, Kaushik Rajgour told him to give job of bodyguard of the builder at a Construction site. Then after releasing from jail, he made contact with accused-Kaushik Rajgour for job and even, contacted for help for the treatment of his mother. It is accused-Kaushik Rajgour who told the PW.1-Approver to contact with accused-Satish Kalya. He also told him that he is going to meet Satish Kalya in the Kila Court and also told PW.1-Approver to meet Satish Kalya at Kila Court. At Kila Court the meeting was held between PW.1-Approver, Satish Kalya, Prakash Nikam, Kaushik Rajgour and Arvind Shinde. He specifically deposed that it was decided that accused-Kaushik Rajgour would give the financial help. Thereafter, PW.1-Approver specifically deposed about the money paid to him for purchase of weapon and bullets by accused-Kaushik Rajgour. His evidence is specific that at J.J. Hospital during meeting with Satish Kalya, accused-Kaushik Rajgour and accused-Arvind Shinde was present. Even, the accused-Kaushik Rajgour gave information about Ajay Gosaliya and also informed that he had bodyguard with him. Then, PW.1-Approver categorically deposed about the role of accused-Kaushik Rajgour for providing financial help for purchase of weapons, making ... 92 ... arrangements of vehicle, stay of the accused-Rajendra Yadav @ Tiwari and Rohit Vishwakarma, moreover, providing information about injured Ajay Gosaliya. The evidence of PW.1-Approver is specific that the accused-Kaushik Rajgour only provided the information that Ajay Gosaliya was coming to a massage parlor and then to Infinity Mall on 28.08.2013. From the evidence of PW.1-Approver, the role of accused- Kaushik Rajgour providing financial help and giving information about injured Ajay Gosaliya is very crucial. Whereas the role of the accused- Arvind Shinde is also material as he all the while the part of the conspiracy and assist accused-Kaushik Rajgour. He was fully aware about the conspiracy hatched for committing murder of injured Ajay Gosaliya. Knowingly, he took part in each and every plan hatched for the completion of commission of murder of injured Ajay Gosaliya. The evidence of PW.1-Approver entangled and clearly depicts the involvement of the accused-Arvind Shinde in the offence. It may be fact that neither accused-Kaushik Rajgour nor Arvind Shinde took actual part in firing and may not be present at the Infinity Mall at the time of the incident, but, the evidence of PW.1-Approver is very specific that they have provided the information about the injured. PW.1-Approver admitted in his cross-examination that before the incident, he was not at all knowing the injured Ajay Gosaliya, neither Chetan Savla @ Desai. It is the accused-Kaushik Rajgour and Arvind Shinde who have given the description of the injured and Chetan Savla @ Desai to the Approver, who then communicated the description of the injured to the assailants and other. As such, the role of the accused-Kaushik Rajgour and Arvind Shinde in the offence is vital.
ROLE OF ACCUSED-PRAKASH @ PAKYA @ BHAU ASHOK NIKAM 116. The evidence of PW.1-Approver is very specific that during ... 93 ... meeting with accsued Satish Kalya out of the gate of the Arthur Road Jail, he introduced him with the accused-Prakash Nikam. Moreover, accused-Satish Kalya told him that accused-Prakash Nikam would handle the job of firing. From that moment itself, accused-Prakash Nikam become the part of the conspiracy hatched about committing murder of Ajay Gosaliya. The evidence of PW.1-Approver is very specific that on 24th and 27th, accused-Prakash Nikam was part of the practice firing took place at Ulve, Navi Mumbai. Then, he also accompanied the others at the Massage Parlor and Thakur Mall. As per the evidence of PW.1-Approver the accused-Prakash Nikam has taken the important task of firing on the injured Ajay Gosaliya which was occurred on 28.08.2013. Even, he was ready for the job on 25.08.2013. The evidence of PW.1-Approver is specific that accused-Prakash Nikam, Rajendra Yadav and Rohit Vishwakarma made firing on Ajay Gosaliya. After incident, accused-Prakash Nikam handed over the weapons to be sold to his friend Ajay Thorat. The evidence of PW.1-Approver is candid and inspires confidence about the involvement of accused-Prakash Nikam in the offence.
ROLE OF ACCUSED-ROHIT @ ROTU PRABHUDAYAL VISHVAKARMA AND RAJENDRA SINGH @ BHAISAHEB @ TIWARI HARICHARAN SINGH YADAV 117. At the outset it is to point out here that during pendency of trial, the accused-Rohit Vishwakarma reported to be dead, as such, the proceeding against him stands abated by way of order dated 22.01.2018. Whereas, the accused-Rajendra Yadav @ Tiwari jumped on his bail and therefore, his trial is separated. The evidence of PW.1- Approver depicts that Rajendra Yadav @ Tiwari deals with the business of selling weapon. His evidence is very specific that he went to Indore for purchasing the pistol and bullet. He made contact with accused- ... 94 ...
Rajendra Yadav @ Tiwari who sold two pistols and bullets to him. Again, he purchased 315 Katta, 7.65 pistol, 10 bullets of Katta and 10 bullets of 7.65 pistol. He developed friendship with Rajendra Yadav @ Tiwari. He was also in need of money. PW.1-Approver told him that one murder was to be committed for Chhota Rajan Gang. He agreed for the same, ultimately, joined the conspiracy. Accused-Rajendra Yadav @ Tiwari also involved accused-Rohit Vishwakarma in the offence. PW.1- Approver further deposed that the accused-Rajendra Yadav @ Tiwari and Rohit Vishwakarma had been to Mumbai, stayed at Mumbai, made practice firing at Ulve, Navi Mumbai. They are with him at Thakur Mall. They demanded money which was paid by Kaushik Rajgour through Arvind Shinde. They also took part in the firing made on injured Ajay Gosaliya on 28th August. It is pertinent to note here that these two accused are totally unknown to others. It is only PW.1-Approver who knows them. The evidence of PW.1-Approver clearly proves the involvement of the accused-Rajendra Yadav @ Tiwari and Rohit Vishwakarma in the offence. Nothing is brought in the cross- examination of PW.1-Approver to remotely suggest why he falsely implicated the accused-Rajendra Yadav @ Tiwari and Rohit Vishwakarma in the offence. As such, there is no reason to disbelieve PW.1-Approver.
ROLE OF ACCUSED-SUNIL KUMAR @ PIYUSH GAURISHANKAR TIWARI 118. The role of the accused-Sunil Kumar @ Piyush Gaurishankar Tiwari is limited to the extent of carrying the accused to the Infinity Mall in the Tavera vehicle bearing registration no.MH-04-ES-4792. Accordingly, the accused-Sunil Tiwari took the accused to the Infinity Mall and parked the vehicle in front of the Infinity Mall. After the ... 95 ... incident, he helped to fled away the assailant from the spot of incident. During investigation, the confessional statement of the accused-Sunil @ Piyush Tiwari also came to be recorded under Section 18 of the MCOC Act which is to be discussed in the later of part of the judgment. From the evidence of PW.1-Approver, there is reason to believe that the accused-Sunil @ Piyush Tiwari took part in the conspiracy and carried the assailant to the Infinity Mall for the purpose of committing murder of injured Ajay Gosaliya and then to escape them.
ROLE OF ACCUSED-RAJENDRA SADASHIV NIKALJE @ CHHOTA RAJAN 119. When during the evidence of PW.1-Approver the learned SPP asked him to identify the accused, at that time, he volunteers that he also used to talk to Chhota Rajan when he was in Arthur Road Jail through Satish Kalya. He also stated that Chhota Rajan had abused him heavily as the job was not successful. These statements are the omissions to his earlier statement recorded by the Court (Exh.89). Apparently, this is an exaggeration/improvement to his earlier statement, however, he explained the said fact after being asked or when the details were extracted from him by the learned SPP during his examination-in-chief. Besides this, he has not stated that he actually had any talk on or before 28.08.2013 with accused-Chhota Rajan. His evidence depicts that whatever talks had been made are through accused-Satish Kalya. All the while the accused-Satish Kalya made reference about accused-Chhota Rajan and insisted that this is the work to be done for and on behalf of accused-Chhota Rajan. From the evidence of PW.1-Approver, there is reason to believe that the conspiracy to commit murder of accused-Ajay Gosaliya was hatched at the behest and insistence of accused-Chhota Rajan. Further, the ... 96 ... evidence of PW.1-Approver shows that he came with contact with Ravi Mallesh Bora @ D.K. Rao, who was the right hand man of Chhota Rajan. Even, D.K. Rao introduced him with accused-Kaushik Rajgour and stated that he is belonged to his company i.e. of 'Chhota Rajan'. Further, with the help of the D.K. Rao and Kaushik Rajgour, PW.1- Approver came in contact with accused-Satish Kalya. These are the additional circumstances which connects and forms a link of connection of accused-Chhota Rajan with accused-Kaushik Rajgour and accused- Satish Kalya.
ROLE OF ACCUSED-VILAS BHARATI 120. It has come in the evidence of PW.1 Approver that he contacted to Vilas Bharati and told him that a murder was to be committed for the Chhota Rajan Gang. Thereafter, he arranged for talk between Satish Kalya and Vilas Bharati. Vilas Bharati also agreed to commit the murder. This evidence of PW.1 Approver indicates that the accused Vilas Bharati joined the conspiracy to eliminate the injured-Ajay Gosaliya. PW.1 further deposed that Vilas Bharati had been with him and Prakash Nikam on 24th to Ulve, Navi Mumbai for firing practice. Thereafter, on 25th at about 9.00 am, all of them reached to Fountain Hotel, whereat, Prakash Nikam and Vilas Bharati came there on bike. They went to Thakur Mall, Dahisar and from there, went near the massage parlor at Lokhandwala. He specifically deposed that as per the instructions of Kaushik Rajgour, the accused-Prakash Nikam, Vilas Bharati and Rajendra Yadav @ Tiwari went inside the car and got themselves armed with the weapons. They were having two pistols and one katta. It suggest that the accused-Vilas Bharati took the task to fire on the injured-Ajay Gosaliya. PW.1-Approver specifically used the word 'shooters' to the accused-Prakash Nikam, Rajendra Yadav and Vilas ... 97 ...
Bharati. They waited for Ajay Gosaliya till about 5.00 pm to 5.30 pm and thereafter, dropped the plan. Then, they went to Thakur Mall for taking lunch. Again, on 27th, PW.1 Apprvoer along with Prakash Nikam, Arvind Shinde and Vilas Bharati went to Ulve, Navi Mumbai for practice firing. PW.1 Approver further deposed that on 28th, Vilas Bharati has also telephoned him and he told him to come to Inorbit Mall. He called accused-Vilas Bharati near the Infinity Mall as he was driving his motor cycle, however, Vilas Bharati missed the target. Fact remains that as per evidence of PW.1 Approver, accused-Vilas Bharati joined the conspiracy to eliminate injured-Ajay Gosaliya and in furtherance of the same, took part in practice firing and also went to massage parlor, Lokhandwala for firing on Ajay Gosaliya. No doubt, he missed the target on 28.08.2013, but, for the reason that he could not reach well in time, though, he proceeded on his motorcycle to Infinity Mall. The evidence of PW.1 Approver clearly depicts the involvement of the accused-Vilas Bharati in the offence.
CORROBORATION 121. Learned Advocate Mr.Pasbola and Mr.Shetty argued that the evidence of the Approver must be looked with some amount of suspicion as it is a tainted evidence. If at all the prosecution is able to prove that the Approver is a reliable witness, still, the prosecution must have to prove that there is sufficient corroboration in material particular from the independent witnesses qua each accused. The learned Advocate Mr.Pasbola relied on the judgment of the Hon'ble Supreme Court in the matter of Rameshwar s/o. Kalyan Singh Vs. the State of Rajashtan reported in AIR (39) 1952 Supreme Court 54, held that “It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which ... 98 ...
should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear. Firstly, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it. Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness's story that the accused was the one, or among those, who committed the offence. Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime.”
122. In view of the above pronouncements, when it is said that the evidence of the Approver must received sufficient corroboration in ... 99 ... material particulars, it is also made clear that there must be some additional evidence rendering it probable that the story of the accomplice is true and it is reasonably safe to act upon it.
123. Further, the learned Adv. Mr. Sudeep Pasbola for accused nos.1 and 10 relied on the judgment of Hon'ble Apex Court in the matter of Jnanendra Nath Ghose Vs. the State of West Bengal reported in AIR 1959 Supreme Court 1199 (V 46 C 163), wherein, it is held that, “The moment there is corroborative evidence which connects or tends to connect an accused with the crime such corroborative evidence relates to the identity of the accused in connection with that crime. It is the Approver's evidence which is the direct evidence of the crime. There should be corroboration in material particulars not only concerning the crime but corroboration of the Approver's story by evidence which connects or tends to connect an accused with the crime. It is this corroborative evidence which determines the mind of the Court or a jury that the Approver's evidence that the accused committed the crime is true.”
124. The learned Adv. Mr. Sudeep Pasbola for accused nos.1 and 10 further relied on the judgment of Hon'ble Apex Court in the matter of K. Hashim Vs. State of T.N. reported in (2005) 1 Supreme Court Cases 237, wherein, it is held that, “Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on an uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this Section has to be read along with Section 114, illustration (b). The latter section empowers the Court to presume the existence of certain facts and the illustration elucidates what the Court may presume and makes clear by means of examples as to what facts the Court shall have regard in considering ... 100 ...
whether or not maxims illustrated apply to a given case. Illustration (b) in express terms says that accomplice is unworthy of credit unless he is corroborated in material particulars. The Statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) to Section 114 of the Evidence Act strikes a note of warning cautioning the Court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the Judge.”
125. The Hon'ble Apex Court while discussing the meaning and scope of 'Corroboration in material particulars' held that there should be some additional/independent evidence... (i) rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it, (ii) which identifies the accused as one of those and among those, who committed that offence, (iii) which need not be direct evidence that the accused committed the crime, such circumstantial evidence of his connection with the crime will be enough and, (iv) ordinarily, the testimony of one accomplice would not be sufficient to corroborate from another.
126. Thus, in view of the above pronouncement, if the evidence of the accomplice is found credible and cogent, the Court can record a conviction even on the uncorroborated testimony of an accomplice. In the light of the above guiding principles, let us now ascertained whether there is any independent corroboration to the evidence of the Approver brought by the prosecution on record. ... 101 ...
127. The first hand evidence of the prosecution about the happening of the incident is of the injured PW.33-Ajay Gosaliya. In his evidence, he specifically deposed about the happening of the incident on 28.08.2013 in front of the gate of the Infinity Mall in between 4.00 pm to 4.15 pm. The date and time of the incident stated by PW.33-Ajay Gosaliya is inconsonance with the evidence of the PW.1-Approver. PW.33-Ajay Gosaliya further deposed that three persons were the assailants who made firing on him. This is also inconsonance with the evidence of the Approver, as he stated that the job of firing was done by accused- Prakash Nikam, Rajendra Yadav @ Tiwari and Rohit Vishwakarma. The fact that the firing was made on injured PW.33-Ajay Gosaliya itself corroborates the evidence of PW.1-Approver that a conspiracy was hatched to commit murder of PW.33-Ajay Gosaliya.
128. PW.33-Ajay Gosaliya specifically deposed that he had been to the Infinity Mall on 28.08.2013 at around 3.00 pm and with Chetan Desai, he went to the Food Court of the Mall situated on the third floor, thereafter, Chetan Desai left that place at 3.45 pm, then, he stayed in Infinity Mall for about 10 to 15 minutes and then left, also corroborates the evidence of PW.1-Approver.
129. Similar is the evidence of PW.49-Arshad, who stated about the incident, more particularly, the date and time and that the assailants fired on PW.33-Ajay Gosaliya out of the gate of the Infinity Mall. He specifically deposed that PW.33-Ajay Gosaliya had meeting with Chetan Desai at the Food Court of the Infinity Mall and on third floor. He further deposed that Chetan Desai first left the Mall and after 15 minutes they have left the Mall. Thus, his evidence also corroborates the evidence of PW.1-Approver about the date and time of the incident and ... 102 ... the fact of firing made on PW.33-Ajay Gosaliya by the Assailants.
130. The witness PW.9-Jai Ramakant Patil and PW.10-Sambhaji Chandrakant Kale were the security guards of the Infinity Mall and at the particular point of time i.e. on 28.08.2013, they heard the cracker like sound and found that three persons were running towards the vehicle Tavera bearing No. MH-04-ES-4792. They specifically gave the description of the vehicle which is in consonance of PW.1-Approver. The evidence of these witnesses corroborates the evidence of PW.1-Approver in regard to the date, place and time of incident, use of the vehicle Tavera in the offence and about the three assailants. The evidence of these witnesses also inspires confidence, when they stated that the assailants were muffled their faces and they saw one of the assailant when his face cover was slept. If at all they were not the natural witnesses, they must not have deposed that the assailants were seen covering their faces. In fact, during test identification parade, held on 10.10.2013 at Arthur Road Jail, conducted by Naib Tahasildar PW.38- Sindhu Umesh Khade, PW.9-Jai Ramakant Patil and PW.10-Sambhaji Chandrakant Kale identified the accused-Rajendra Yadav @ Tiwari and Rohit Vishwakarma. However, PW.9-Jai Patil could not identify any accused during his evidence, whereas, PW.10-Sambhaji Chandrakant Kale identify accused-Rohit Vishwakarma in the Court. Needless to mention here that the test identification parade is meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeded on right directions. It is settled that the test identification parade is not a substantive evidence. The identification of the assailant by the injured before the court is relevant and material. Here, PW.10-Sambhaji Kale specifically identified the accused-Rohit Vishwakarma before the Court, ... 103 ... so also, PW.33-Ajay Gosaliya identified accused-Prakash Nikam before the Court. He may not be able to identify other two assailants for the reason that one of the accused-Rajendra Yadav @ Tiwari was absconding and the accused-Rohit Vishwakarma was no more. This has also given corroboration to the evidence of PW.1-Approver.
131. The learned Advocate for the accused strenuously argued that the incident of firing occurred within 3 minutes, moreover, it is also matter of fact that the assailants had covered their faces. Attention is drawn towards cross-examination of PW.33-Ajay Gosaliya, wherein he admits that the incident occurred within few seconds, therefore, it is argued that when the assailants have covered their faces and the incident occurred within three seconds, so there may not have been any occasion for the injured PW.33 to identify the assailants. However, in the cross- examination itself, PW.33-Ajay Gosaliya stated that he saw one of the assailants as his handkerchief has sleeped down from his face. Though, he admit that he was unable to give the description of the assailant during his first statement, but, he gave the description of the assailant in his subsequent statement. In fact, in the report/FIR (Exh.616 colly.), which is lodged immediately after the incident, specific description of the unknown assailants were given. This description of the assailant clearly matches with the physical status of the accused-Prakash Nikam, Rajendra Yadav @ Tiwari and Rohit Vishwakarma and gives material corroboration to the evidence of PW.1-Approver.
FIR 132. After getting telephonic information of the occurrence of the offence, PW.50-API Deepak Kirkire of Bangur Nagar Police Station had been to the Zenith Hospital, whereat, he came to know that the injured ... 104 ... is PW.33-Ajay Himmatlal Gosaliya. He also came to know that PW.49- Arshad accompanied the injured at Infinity Mall and he is the witness to the incident. Accordingly, he recorded the statement of PW.49-Arshad and on the basis of the same, registered offence vide Crime No.206 of 2013 with their Police Station. The FIR and the statement of the injured is at Exh.616. The evidence of PW.49-Arshad is candid about the happening of the incident of firing on PW.33-Ajay Gosaliya in front of the gate of the Infinity Mall and that he sustained injury on his neck and right hand palm. His evidence is also specific about recording his statement by PW.50-API Kirkire and registration of the offence against the unknown assailants. The lodging of the report immediately after the incident rules out the possibility of any deliberation and concoction. The evidence of these witnesses coupled with the contents of the FIR (Exh.616 colly.) materially corroborates the evidence of PW.1-Approver.
SPOT OF INCIDENT 133. It has come in the evidence of PW.50-API Kirkire that he visited the spot of incident and prepared spot panchanama (Exh.255). From the spot, he seized four empties and one misfired bullet. He also collected the blood mixed earth and simple earth from the spot. The evidence of PW.50-API Kirkire get assurance from the evidence of the pancha witness PW.2-Shankar Limbaji Dedhe, who also deposed in consonance with PW.50-API Kirkire about the seizure of empty cartridges and the piece of copper from the spot of incident. This has give material corroboration to the evidence of PW.1-Approver.
134. Here, it is necessary to point out here that as per evidence of PW.1-Approver, as they did not have money, Prakash Nikam gave two pistols and bullets to his friend Ajay Thorat for selling, which were used ... 105 ... in firing on Ajay Gosaliya. Said Ajay Thorat took the bag containing the pistols. The customer to whom those pistols and bullets were to be sold was informer of Police and therefore, Ajay Thorat got arrested by the Police of Unit no.8 alongwith weapons. Accordingly, said Ajay Thorat was tried before the Addl. C.M.M., 37th Court, Mumbai and then acquitted. The muddemal such as two pistols and bullets seized in those offences were brought on record before this Court vide Exh.242. Thereafter, the seized articles from the spot and those two pistols and bullets, sent for chemical analysis to Forensic Science Laboratory. The report of the FSL in regard to the analysis of the pistols, empties and cartridges is placed on record vide Exh.393, wherein, it is opined that the country-made pistol (Article-1 and 2) are in working condition and they are capable of chambering and firing 7.65 mm pistol cartridges. In this regard, the evidence of PW.1-Approver is very specific that he purchased 7.65 pistol and bullets from accused-Rajendra Yadav @ Tiwari. It is also opined that the residues of fire ammunition nitrite was detected in the barrel washings of Exh.1 and 2 showing that Exh.1 and 2 (country-made pistol) were used for the firing to their receipt in the laboratory. It is also opined that the two 7.65 mm cartridges were successfully testfired through the country-made pistol in Exh.1 and 2 separately. It is also opined that the characteristic features of firing pin impression on the empties tally between themselves. Moreover, the deform fired soft nose copper jacketed 8 mm rifle bullet having brushing mark. This has strengthened the case of the prosecution that the empties are fired from 7.65 mm pistol and corroborates the evidence of PW.1-Approver.
135. Even during his evidence PW.1-Approver identifies, the three empty cartridges (Article-12 Colly.) and long empty cartridge (Article- ... 106 ...
26), which he purchased from accused-Rajendra Yadav @ Tiwari. These three empty cartridges and the long empty cartridge were found by PW.50-API Kirkire on the spot of incident. He and PW.2-Shankar Dedhe identified the same before the Court and stated that those were lying on the spot. The learned Advocate Mr.Deshpande argued that as per story of prosecution and the evidence of PW.33, the three assailants made incessant firing on him. If that be so, then there must be more than four empties found at the spot. It is also pointed out that as per evidence of PW.33-Ajay Gosaliya twice firing was made on him. Therefore, it is argued that finding of only four empties on the spot of incident is doubtful. The learned Advocate Mr.Deshpande posed a question that though none of the bullets pierced into the body of PW.33-Ajay Gosaliya, still no bullets found on the spot. Apparently, there is no investigation regarding the fired bullets except the empties found on the spot. It can be lapses on the part of the Investigating Officer, but, the fact of finding three empties and long empty cartridge on the spot cannot be overlooked. It is significant to note here that after the incident, the accused-Prakash Nikam and PW.1-Approver had a talk about the incident, in which, accused-Prakash Nikam told him that the persons Rajendra Yadav @ Tiwari and Rohit Vishwakarma from Uttar Pradesh did not do their work properly and because of that, Ajay Gosaliya survived. It means that either those two accused could not fire from the weapon they are having, or missed the target. Resultantly, there might be only four cartridges found lying on the spot. Fact remains that this has corroborated the evidence of PW.1-Approver about the firing made on PW.33-Ajay Gosaliya and that the accused-Prakash Nikam, Rajendra Yadav @ Tiwari and Rohit Vishwakarma, completed the task of firing on the injured. ... 107 ...
136. It has come in the evidence of IO PW.51-Chimaji Jagannath Adhav that he arrested the accused-Rajendra Singh @ Bhaisaheb @ Tiwari Haricharan Singh Yadav on 03.09.2013. On 07.09.2013, while in custody, he gave memorandum statement in presence of panchas to show the place where they made firing practice situated at Village : Shelgar, near Uran, Dist. Raigarh. Accordingly, he recorded memorandum statement of the accused. Then, as per directions of accused, he, his team, panchas and accused by Government vehicle proceeded towards Village Shelgar. At village Shelgar, the accused showed a farm house and asked to stop the vehicle. From there, they went about 400 to 500 feet by walking. The accused showed the place of stone mine. They inspected the placed and found three empty cartridges at that spot. They seized the said cartridges and sealed them. They also taken the 12 photographs (Article-X-70) of the said place and cartridges lying on the ground. Thereafter, he prepared the recovery panchanama (Exh.658). The learned Advocate for the accused strongly argued that the prosecution has not examined any independent pancha witness on the memorandum and recovery panchanama, which itself make it doubtful. Certainly, the prosecution could have examined the pancha witness on the said memorandum and recovery panchanama (Exh.658). Therefore, much reliance cannot be placed on it. Still, the place where the practice firing was made is the same which has been deposed by PW.1-Approver.
137. In order to corroborate the evidence of PW.1-Approver as regards depositing money by the accused-Kaushik Rajgour of Rs.9,000/- in the account of Dinesh Thakur, the prosecution examined PW.45-Dalip Antwal, the Chief Manager of Union Bank of India, Dahisar Branch. He has given the procedure for depositing the cash in the bank. He deposed ... 108 ... that he had handed over one original cash receipt to IO of CBI, Mr.Jagrup Singh who made production memo of it vide Exh.577. He deposed that he had given the original cash receipt dated 28.08.2013 showing the deposit of Rs.9,000/- in the account no.472402010072510 to IO Jagrup Singh. Though, he admit in his cross-examination that at the time of transaction he was not attached to the concerned branch of the bank but fact remains that he was the custodian of the said document and the same was taken from his custody. Further, the CBI sent the said document for forensic examination to CFSL, Navi Mumbai. Accordingly, the Forensic document examination report issued by CFSL on 30.05.2018 vide Exh.494. Said document is directly exhibited in view of section 293 of the Cr.P.C. While examining the handwriting on the original cash receipt (Article-57), specimen handwriting of accused- Kaushik Baldev Rajgour, Arvind Shinde and the wife of accused-Kaushik Rajgour, namely, Gauri were taken. In view of the report of the CFSL (Exh.494) the handwriting on the cash receipt (Article-X-57) matches with the handwriting of accused-Arvind Shinde. This has also give corroboration to the evidence of PW.1-Approver about depositing of Rs.9,000/- in the account of Dinesh Thakur and involvement of accused-Kaushik Rajgour and accused-Arvind Shinde.
CCTV FOOTAGE-THAKUR MALL 138. In order to corroborate the fact that on 25.08.2013, PW.1- Approver along with Prakash Nikam, Rajendra Yadav @ Tiwari and Vilas Bharati went to Thakur Mall, the prosecution brought on record the CCTV footage of the Thakur Mall through the evidence of PW.41- Mandar Sanjay Dhulap who was the 'Desktop Support Engineer' of Star Bazar Dahisar. He specifically deposed that he showed the CCTV footage to API Adhav on 10.09.2013 and on the next date, he produced the ... 109 ...
CCTV footage in a CD to API Adhav at the office at Kandivali. The CD was checked and then sealed. This witness has not supported to the prosecution in material particulars, therefore the learned SPP put the questions to him in the form of cross-examination. Then, he stated that he issued the certificate under Section 65-B of the Evidence Act vide Exh.528. He further stated that CCTV footage was of 25.08.2013 of the entrance of Star Bazar. He gave CCTV footage in one DVD of 'Moserbaer' company and the Police prepared panchanama of it vide Exh.321. The prosecution also examined pancha witness PW.13-Vaibhav Dattatraya Ghosalkar who deposed that the CD was produced by Mandar Dhulap in his presence, which was examined by API Adhav and it was played before him. There was a CCTV footage of 25.08.2013 and the accused were seen in the CCTV footage. Accordingly, police prepared panchanama Exh.321 and the CD is Article-58. Said CD Article-58 also played in the Court during the evidence of PW.1-Approver. The CD (Article-58) is labled as “CCTV footage at Thakur Mall 25.08.2013”. When it was played before PW.1-Approver, he states that the CCTV footage is of Thakur Mall, Dahisar. When the video is paused at the timing 01:23 seconds, he stated that the persons shown in the picture are he himself, Prakash Nikam by his side, Vilas Bharti behind him, by his side Rajendra Yadav @ Tiwari and behind him Rohit Vishwakarma at some distance. The identification of the contents of the CCTV footage and the other accused in it by PW.1 carries vital importance. It is argued by the ld.Adv. Mr. Shetty that there is difference of time shown in the CCTV footage and the time stated by PW.1-Approver. Attention is invited to his cross-examination, wherein he admitted that they had gone inside the Thakur mall in between 06:30 pm to 07:00 pm and returned at about 08:30 pm. However CCTV shows timing as 01:23 seconds. It is argued that the duration of the CCTV footage and its timing is not ... 110 ... mentioned in the panchanama, which creates doubt about tampering of the same. There may be difference of timing due to some technical fault, but it is the same CD (Art.58) which was produced by PW.41- Mandar and seized by police in presence of PW.13-Vaibhav Ghosalkar. The sealed CD was opened before the Court and played. It shows the presence of accused at the Thakur mall on 25.08.2013. There is no possibility of planting the accused in the CCTV footage. Except denial there is no explanation of the accused about showing their presence in the mall. Thus, the contents of the CCTV footage in CD (Article-58) gives independent and material corroboration to the evidence of PW.1- Approver.
CCTV FOOTAGE-INFINITY MALL 139. As discussed herein before, the IO PW.52-API Chimaji Adhav stated that he obtained the CCTV footage of Infinity Mall of 32 cameras in the hard-disc (Article-41). At the request of the learned SPP, amongst the other files, the following files were shown to the witnesses. For the sake of convenience the name of the file, it's starting point is given as follows :-
Sr. Name of the File Starting point Nos. time 1 Terrace_gate_CH11_1330 16:18:00 2 '20130828\CH_01_20130828_1400.exp' 19:30:04 3 'G drive\20130828\LG North_CH01_1400.exp' 14:00:00 4 'G drive\20130828\UG South_CH02_1400.exp' 14:00:06 5 'G drive\20130828\First floor_CH06_1400.exp' 14:00:03 6 'G drive\20130828\2nd South_CH01_1400.exp' 14:00:02 7 'G drive\20130828\3rd floor 1_CH01_1400.exp' 14:00:02 8 'G drive\20130828\3rd floor 3_CH01_1400.exp' 14:00:03 ... 111 ...
9 'G drive\20130828\LG North CH01_1400.exp' 14:00:02 10 'G drive\20130828\CH_02_20130828_1400.exp' 19:30:02
140. During the evidence of PW.1-Approver the hard-disc(Article 41) was played in the court. On showing the file 'terrace_gate_CH11_1330' and when it was paused at 16:28:20, he says that the person shown on the screen wearing blue full shirt and blue jeans and goggle is Prakash Nikam. Again when the video paused at 16:28:23, 16:28:24 he says that the person shown on the screen wearing blue full shirt and blue jeans pant is Prakash Nikam. The video is played again and paused at 16:28:34, he states that the person wearing red cap, blue jeans pant and checks shirt is Rajendra Yadav @ Tiwari. The video is played again and paused at 16:30:01, he states that the two persons appearing next to a lady who is dressed in red and black are Prakash Nikam and Rajendra Yadav @ Tiwari. The video is played again and paused at 16:31:22, he states that the person shown in the video wearing T-shirt is Chetan Savala @ Desai and he is wearing yellow colored T-shirt. The video is played again and paused at 16:36:59, he states that the picture shows that people are running here and there. The video is played again and paused at 16:37:09, he states that the two persons are seen running on the other side of the road. Only their legs are seen. He states that the person in the front is Prakash Nikam and the person behind him is Rajendra Yadav @ Tiwari.
141. This video file is out of the gate of the Infinity Mall, more particularly of the gate near the Taxi stand. It shows the presence of the accused-Prakash Nikam and Rajendra Yadav @ Tiwari from 16:28:20 hours to 16:30:01 hours and again on 16:37:09 hours while running. PW.1-Approver specifically identified accused-Prakash Nikam and ... 112 ...
Rajendra Yadav @ Tiwari in the CCTV footage. He also identified Chetan Savala @ Desai. At 16:36:59, the peoples are seen running here and there, which indicates that after hearing the sound of firing, they must be frightened and started running.
142. It is argued by the learned Advocate for the accused that in the CCTV footage at 16:37:09 hours, the legs of the persons running across the road only seen and on the basis of the same, it cannot be said that he was the accused-Praksh Nikam. In fact, from 16:28:20 hours to 16:30:01 hours, the accused-Pakash Nikam can be very well seen present in the CCTV footage and his dressing matches with the CCTV footage of 16:37:09 hours. Moreover, PW.1-Approver specifically identified the accused-Prakash Nikam and Rajendra Singh Tiwari. Thus, the CCTV footage of 'terrace_gate_CH11_1330' corroborates the evidence of PW.1-Approver that the accused-Prakash Nikam, accused- Rajendra Yadav @ Tiwari had been to the Infinity Mall on 28.08.2013 from 16:28:20 hours to 16:37:09 hours. The accused-Prakash Nikam and others do not offer any explanation to contradict their presence shown in the CCTV footage except denial.
143. Thereafter, PW.1-Approver was shown the file '20130828\ CH_01_20130828_ 1400.exp' the video is paused at 21:29:53, he states that the white Tavera vehicle which is stationary and in front of the tanker shown in the video is the same which was brought for the purpose of escaping after the incident. At the timing 21:30:46, the Tavera vehicle is seen to be moving forward.
144. The PW.1-Approver was cross-examined on the CCTV footage in ... 113 ... order to contradict him that CCTV footage is not clear about the presence of Tavera vehicle. Apparently, the vehicle Number could not be displayed in the CCTV footage. The Tavera vehicle was seen moving and standing in front of a tanker. In the cross-examination, PW.1-Approver again stated the registration number of the Tavera vehicle as MH-04-ES- 4792 and state that the Tavera vehicle which was seen parked in front of the tanker is the same vehicle. This CCTV footage is taken from the camera which was at the security gate of the Infinity Mall and the white coloured vehicle was moving and then parked on the other side of the road, therefore, the registration number of the said vehicle is not visible. However, the description given by PW.1-Approver, so also, PW.9- Jai Ramakant Patil and PW.10-Sambhaji Kale clearly matches and corroborates from the CCTV footage.
145. It is argued by the learned Advocate Mr.Shetty and Mr.Deshpande that as per the evidence of PW.1-Approver, the vehicle was arranged by his friend Sukesh Shinde, however, the prosecution examined one PW.17-Ravi Davande, who nowhere referred the name of Sukesh Shinde nor PW.1-Approver referred the name of Ravi Davande. Fact remains that the evidence of PW.1-Approver is specific that it is the same Tavera vehicle which was used for carrying and escaping the shooters. There may be some discrepancy about arranging the vehicle by Sukesh Shinde or Ravi Davande, but, the involvement of the vehicle No.MH-04-ES- 4792 is clearly established by the prosecution.
146. The video is played again and paused at 21:34:15, he states that the person near check post is Ajay Gosaliya who was running. The public is also seen running. The video is played again and paused at ... 114 ...
21:34:36, he states that the person near the red colored barricade wearing blue shirt with design and whose back is facing the camera is Ajay Gosaliya. The video is played again and paused at 21:34:50. It is seen that thereafter Ajay Gosaliya went back, towards left side and out of the camera. The video is played again and paused at 21:37:03, he states that Ajay Gosaliya is seen sitting on a chair. The video is played again and paused at 21:37:33, he states that Ajay Gosaliya is seen standing alongwith the security guards. The video is played again and paused at 21:38:13, he states that three-four persons are taking Ajay Gosaliya towards some place.
147. The contents of the said CCTV footage clearly shows that the injured Ajay Gosiliya entered into the security gate of the Infinity Mall and then the gate was closed by the security. Injured Ajay Gosaliya come into the Infinity Mall and sit there. The security personnel after the incident also seen to be running inside the Infinity Mall. It shows that after the incident, even the security personnel also frightened and started running. This has again proved the happening of the incident of firing on Ajay Gosaliya and corroborates the evidence of PW.1-Approver.
148. It is argued by the learned Advocate for the accused that the videos in the CCTV footage are not clear and blurred. In fact, PW.1- Approver denied the same. It is to point out here that whenever the CCTV footage is paused at a particular time, the picture at that moment becomes somewhat blurred. However, in running video one can easily identify the outer or inner portion of the Infinity Mall and the persons present there. PW.1-Approver specifically stated that at the time of incident, the injured Ajay Gosaliya was wearing blue colored half shirt ... 115 ... and khaki colored jeans pant. He also identified this clothes (Article-34 colly.) of injured during his evidence. Same is the description of the clothes stated by PW.33-Ajay Gosaliya in his evidence. It gives further corroboration to the evidence of PW.1-Approver.
149. It is strenuously argued by the learned Advocate for the accused that as per the evidence of PW.33-Ajay Gosaliya and PW.1-Approver, the incident took place in between 4.00 pm to 4.30 pm, whereas, the CCTV footage of the file '20130828\ CH_01_20130828_ 1400.exp' show the starting point as 19:30:04. In fact, as per the evidence of PW.33-Ajay Gosaliya, PW.49-Arshad, PW.15-Santon Gabrial Fernandes. Immediately, after the incident the ambulance was called and injured was taken to the J.J. Hospital. Attention is drawn towards the CCTV footage which was paused at 21:34:15, the injured was shown near the security check post of the gate of the Infinity Mall. Therefore, it is argued that the CCTV footage is tampered and manipulated. Attentioin is also drawn towards the cross-examination of the PW.28-Vinod Dattaram Revale that after 28.08.2013, Police visited many times, different officers used to come and asked different CCTV footage. He used to give them the CCTV footage in Pen Drive or CD. Relying on the said admission, it is argued that the Police Officials manipulated the CCTV footage. Certainly, in the CCTV footage of the file '20130828\CH_01_20130828_1400.exp', the starting point time is 19:30:04 and the injured seen to enter from the gate of the Infinity Mall at about 21:34:15. In fact, the incident occurred there before in between 4.00 pm to 4.30 pm. There must be some technical default occurred in displaying the time of the incident. This defect about timing appears in the file 'G drive\20130828\ CH_02_20130828_1400.exp' as well. The other files show the correct ... 116 ... time of the incident. This may be due to some technical problem. Even otherwise, if the injured is shown entering the gate at 21:34:15 hours, then, there must be dark seen in the CCTV footage. Whereas, the CCTV footage shows that there is sunlight and no lights including street lights were switched on.
150. In fact, PW.28-Vinod Dattaram Revale could have throw light on this discrepancy, but, neither prosecution nor defence sought any explanation from him. Fact remains that the CCTV footage which was stored in hard-disc (Article-41) was sealed on 08.09.2013 itself and the same was opened only during the evidence of PW.1-Approver. As such, there is no question of tampering or manipulating the same after its seizure. In comparison to the timing of other files, the discrepancy in timing in these two files needs to be ignored as a technical defect. Keeping this aspect aside, as regards the identification of the accused- Prakash Nikam, Rajendra Yadav @ Tiwari, Rohit Vishwakarma, injured, Chetan Savla and he himself in the CCTV footage, the evidence of PW.1- Approver is candid and reliable.
151. Then the file 'G drive\20130828\LG North_CH01_1400.exp' is shown to the witness. The video is played and paused at 15:34:16, he states that the person shown in the frame is himself. Then the file 'G drive\20130828\UG South_CH02_1400.exp' shown to him. The video is played and paused at 15:40:56, he states that the person shown in the frame is himself. Then he was shown the file 'G drive\ 20130828\2nd South_CH01_1400.exp'. The video is played and paused at 15:42:33, he states that the person shown in the frame is himself. This has sufficient to show the presence of PW.1-Approver at the ... 117 ... relevant time of incident at Infinity Mall.
152. Then the file 'G drive\20130828\3rd floor 1_CH01_1400.exp' shown to him. The video is played and paused at 15:43:16, he states that the person shown in the frame wearing blue shirt is Ajay Gosaliya and the person shown in the frame wearing yellow T-shirt who is alongwith Ajay Gosaliya is Chetan Savala @ Desai. According to him, they are sitting in food Court (the backside of the person shown in the frame wearing a blue shirt is seen). The video is played again and paused at 15:45:12, he states that the person (passerby) shown in the frame and talking on the mobile phone is himself. Then the file 'G drive\20130828\3rd floor 3_CH01_1400.exp' shown to him. The video is played and paused at 15:55:05, he states that the person shown in the frame talking on the mobile phone is himself.
153. Then he was shown the file 'G drive\20130828\LG North CH01_1400.exp'. The video is played and paused at 16:04:54, he states that the person shown in the frame wearing blue shirt with some design and whose back is seen is Ajay Gosaliya and the person shown in the frame behind him whose backside is seen is his bodyguard. The video is played again and paused at 16:06:56, he states that the person shown in the frame wearing checks shirt and near the shop and going outside and whose backside is seen is himself. Then he was shown the file 'G drive\20130828\ CH_ 02_ 20130828_1400.exp'. The video is played and paused at 21:35:41, he states that the person shown in the frame near the gate and going outside is himself.
154. In this CCTV footages also, the PW.1-Approver identified himself, Ajay Gosaliya and Chetan Savla @ Desai. In the cross-examination also, ... 118 ... he stated that Chetan Savla was fair in complexion and height of 5 ft. 7 inches to 8 inches having strong built. As regards Ajay Gosaliya also, he stated that he had a fair complexion, strong built and height of 5 feet 8 inch to 9 inch. The height of Chetan might be little less than Ajay Gosaliya. This description matches with the personality of injured Ajay Gosaliya and Chetan Savla @ Desai. No doubt, in the CCTV footage of the food court injured Ajay Gosaliya and Chetan Savla @ Desai could not be seen properly, but, one can certainly ascertain the person sitting in the food court wearing blue shirt, which is as per the evidence of PW.1-Approver is Ajay Gosaliya. PW.1-Approver is cross-examined as regard the situation of the food court, he gives each and every minute details. He specifically stated that he was on the third floor for about 8 to 10 minutes. When he himself witnessed the situation of the food court, his evidence of the presence of injured Ajay Gosaliya and Chetan Savla @ Desai in the food court is required to be believed. The CCTV footage of the food court is in the file 'G drive\20130828\3rd floor 1_CH01_1400.exp' of which the starting point is 14:00:02 and the injured Ajay Gosaliya and Chetan Savla @ Desai were present in the food court at 15:43:16, corelates the evidence of PW.1-Approver that he had been to the Food court of the Infinity Mall at about 3.30 pm to 4.00 pm. He was seen present at the food court at 15:45:12. Thus, the CCTV footage of the food court corroborates the evidence of Approver in material particulars.
155. During evidence of PW.33-Ajay Gosaliya, the CCTV footage of the file 'Terrace_gate_CH11_1330' shown to him, in which he identifies that the person seen in the frame is Chetan Desai. Further, the file '20130828\CH_01_20130828_1400.exp' shown to him wherein he identified that the person in the frame wearing blue shirt and running ... 119 ... inside is he himself, the security guards were also present there. On showing the file 'G drive\20130828\3rd floor 1_CH01_1400.exp', he identified that the footage is of the food court of the Infinity Mall where he himself and Chetan Desai was present. Further, he identified himself in the file 'G drive\20130828\LG North_CH01_1400.exp' and stated that the person in the blue shirt is he himself and at that time, he was exiting the Infinity Mall. This evidence of PW.33 coupled with CCTV footage of the Infinity Mall significantly corroborates the evidence of PW.1-Approver in material particulars.
SEIZURE OF INNOVA VEHICLE 156. It is in the evidence of PW.1-Approver that the accused-Kaushik Rajgour used his Innova vehicle in the offence while going to the spot at Massage Parlor, at Lokhandwala Andheri, then on 26th between 3.00 pm to 4.00 pm, Kaushik Rajgour sent Innova vehicle for dropping the shooters at Navi Mumbai and Arvind Shinde was driving it. Further, Kaushik Rajgour sent his Innova vehicle and bag containing weapons to Arvind Shinde. No doubt, some of these statements are omissions to his statements (Exh.89) recorded before the Court, but, there is specific mention about the involvement of vehicle Innova in the offence. During investigation, this vehicle white colored Innova car no.5392 was produced by PW.18-Dinanath Ramsurat Pandey at the office of Crime Branch Kandivali. This witness is not cross-examined by the defence which suggests that the production of vehicle Innova no.5392 by PW.18- Dinanath is not disputed by the defence. The IO seized the said vehicle vide panchanama Exh.318. The prosecution also examined the panch witness PW.12-Anil Raghunath Nate who deposed that the white colored innova vehicle no.MH-04-EQ-5392 was produced by one Ramsaran Pandey and the same was seized by the Police. As the identity ... 120 ... of the vehicle is not disputed the same is marked as Article-55. The search of the said vehicle was taken in presence of PW.7-Kastat Micheal Fernandes and the panchanama of it was prepared vide Exh.287. The seizure of the vehicle Innova number MH-04-EQ-5392 corroborates the evidence of PW.1-Approver about the involvement of the same in the offence.
157. In order to corroborate the evidence of PW.1-Approver that the offence of attempt to commit murder of PW.33-Ajay Gosaliya was committed at the instance of accused-Rajendra Sadashiv Nikalje @ Chhota Rajan, the prosecution examined PW.37-Indukumar Shashi Amin, PW.39-Dharamraj Singh S/o Ram Narayan, PW.42-Pradeep Rameshwar Sharma and PW.44-Ravi Mallesh Bora. However, PW.44- Ravi Mallesh Bora did not support the prosecution and therefore, his evidence is of no help to the prosecution, nor sufficient to corroborate the testimony of PW.1-Approver.
158. In his evidence, PW.37-Indukumar Amin stated that accused- Chhota Rajan was in contact with Vinay Kumar Singh and after his encounter he used to call Ramesh Shetty. On one occasion, Chhota Rajan called him through one Mr. Raju, who know whether he was interested in re-development of a property at Mulund. The call was having a '+' sign and three – four digits in the number. He know Ajay Gosaliya. Chhota Rajan had abused him by using bad words. Chhota Rajan said “whether you have become a driver of Ajay Gosaliya ?”, he further said “vHkh VkbZe [kjkc py jgk gS rks rqe yksx b/kj m/kj …...”. He states that Chhota Rajan asked him whether he had changed party ? (ikVhZ cnyh fd;k). He told him “vjs rq cp x;k”. Chhota Rajan told him that he was roaming as a driver of Ajay Gosaliya. He had received that call in the ... 121 ... year 2007-2008. From the evidence of this witness, it reveals that Chhota Rajan has abused him for giving company to Ajay Gosaliya. The learned Advocate Mr.Pasbola argued that the evidence of this witness is of no relevance to show any grudge of accused-Chhota Rajan with injured Ajay Gosaliya. Attention is drawn towards his cross-examination wherein he stated that he cannot say with certainty whether the call was made by Chhota Rajan. It is argued that there is no voice identification of the voice of accused-Chhota Rajan made from this witness, as such, his evidence is not credible and trustworthy. It is also pointed out that the statement of this witness is recorded by the CBI after recording of the evidence of PW.1-Approver, therefore, he is a crop up witness. PW.37 denied all these suggestions given by the defence that he is deposing false at the instance of Police. No specific suggestion was given to this witness as to why he is deposing false against accused- Rajendra Sadashiv Nikalje @ Chhota Rajan. No doubt, the witness admitted that he had made no complaint of the same to the Police Station, but, there is no reason for him to depose false against the accused-Rajendra Sadashiv Nikalje @ Chhota Rajan.
159. Further, the prosecution examined PW.39-Dharamraj Singh S/o Ram Narayan, who deposed that he had seen on the Star News that Chhota Rajan had made a statement that he would kill Ajay Gosaliya, himself, Pradeep Sharma and others. He further stated that Chhota Rajan wanted to kill him as he was friend and having good relations with Pradeep Sharma. He admitted in his cross-examination that he had not personally seen the news about the threat given to him, Ajay Gosaliya and Pradeep Sharma. Therefore, his evidence regarding threats given by accused-Chhota Rajan on Star News channel is of hearsay nature. Though, he stated that the Chhota Rajan wanted to kill him as ... 122 ... he was friend of Pradeep Sharma, but, this is an omission to his statement. Apparently, the prosecution did not examine anyone from the Start News channel who had interviewed the accused-Chhota Rajan, nor the said clip of the interview brought on record. Moreover, the information of PW.39-Dharamraj Singh about the news is of hearsay nature. Therefore, the evidence of PW.39-Dharamraj Singh is not worthy of credit.
160. The prosecution further examined PW.42-Pradeep Rameshwar Sharma, the Senior P.I. of Thane Crime Branch of Thane. He deposed that he know Ajay Gosaliya @ Ajay Ganda, he used to give information regarding the gang of Chhota Rajan to him. He know Dharamraj Singh @ Bacchi Singh, who also used to give him information about the crime syndicates of Chhota Rajan and Dawood Ibrahim. He deposed that around 10 to 12 years back, Chhota Rajan gave interview on Star TV threatening to eliminate him, Ajay Gosaliya, Dharamraj Singh and Pappu Savla in order to create panic in the business community to extort money. In the cross-examination, he was unable to give the exact date, month and year of the interview of the Chhota Rajan to the Star TV. He further stated that he do not recall what were the exact words which were used by him. Surprisingly, during his evidence, it was asked whether the CD containing the interview given by Chhota Rajan to Star TV was played before him, to which, he answered in negative. It means that there must be a CD containing the interview given by Chhota Rajan to Start TV, however, the same is not produced before the Court. For want of the same, merely the verbal evidence of PW.39-Dharamraj Singh and PW.42-Pradeep Sharma cannot be believed. The prosecution has not produced the best possible evidence of recording of interview of Chhota Rajan to the Start News Channel. However, There is reason to ... 123 ... believe from the evidence of this witness that the injured Ajay Gosaliya and PW.39-Dharamraj Singh were providing information to him about the crime syndicates of Chhota Rajan and Dawood Ibrahim. To some extent, this fact corroborates the evidence of PW.1-Approver as to the object of attempt to commit murder of injured Ajay Gosaliya.
CDR 161. Another part of evidence brought on record by the prosecution in the form of CDRs in respect of the mobile numbers of the accused, including PW.1 Approver and the witnesses Chetan Desai and Rakesh Bijan, so also, of Dinesh Thakur, Sukesh Shinde and Nadeem Qureshi. As per the story of the prosecution, the following mobile numbers were used by the accused and others :-
SR. NAME OF THE USER AND HIS STATUS THE MOBILE NO. NUMBERS USED BY HIM 1 Amit Sinha (PW.1 Approver) 8080167774 9892677758 8652154235 7738189085 8286347205 9167470168 8151032188 8097649273 8879076724 2 Vilas Bharati (Accused no.6) 9167469734 7208886553 9833265341 9167145574 8655328203 9820232198 9322458023 9702546103 9833684341 8425845660 ... 124 ...
8425845661 8108665341 3 Kaushik Rajgour (Accused no.1) 9833933340 9594888804 8879388959 4 Arvind Shinde (Accused no.2) 9821639570 8693084405 5 Satish Tangappan Joseph (Accused no.9) 8976351424 9004927608 9967170042 6 Prakash Nikam (Accused no.8) 8108847777 9503841240 7 Rajendra Tiwari (Accused no.3) 8224040169 7748978338 8 Piyush @ Sunil Tiwari (Accused no.5) 8693086985 9 Chetan Desai (PW.11) 9769612354 10 Rakesh Bijam (PW.16) 9167455956 11 Dinesh Thakur 8976021904 12 Sukesh Shinde 9867567959 13 Nadim Qureshi 9833475130
162. In order to prove the CDRs of the mobile numbers of the accused and the witnesses the prosecution examined the Nodal Officer and proved the CDRs of the aforesaid mobile numbers. The details of the same is given in the following chart :-
PW NAME OF NAME OF MOBILE NO. CDR PERIOD NAME OF NODAL MOBILE (EXH.) ACCUSED OFFICER COMPANY 21 R.K. Loop 9821639570 350 01.08.13 A-2 Arvind Prajapati Mobile to 30.08.13 27 Vijay E. IDEA 9594888804 367 01.08.13 A-1 Kaushik Shinde Cellular to Ltd. 8224040169 368 30.08.13 A-3 ... 125 ...
Rajendra 9702546103 371 A-6 Vilas 8693086985 376 A-5 Sunil 8693084405 375 -- 8108847777 369 A-8 Prakash 8425845660 374 A-6 Vilas 8652154235 370 PW.1 8108665341 372 A-6 Vilas 8425845661 373 A-6 Vilas 36 Vikas N. Vodafone 9833933340 474 01.08.13 A-1 Kaushik Phulkar 9167469731 475 to -- 30.08.13 9820232198 476 A-6 Vilas 8879388959 477 A-1 Kaushik 9833265341 478 A-6 Vilas 9833684341 479 A-6 Vilas 9167470168 480 PW.1 9167145574 481 A-6 Vilas 43 Milind D. Bharati 9892677758 546 01.05.13 PW.1 Kolwadkar Airtel to 30.08.13 9004927608 548 01.05.13 A-9 Satish to 30.08.13 7738189085 547 01.05.13 PW.1 to 30.08.13 9967170042 549 01.05.13 A-9 Satish to 30.08.13 9503841240 545 01.08.13 A-8 Prakash to 30.08.13 8976351424 545 01.05.13 A-9 Satish ... 126 ...
to 30.08.13
163. Apparently, the mobile No.9821639570 came to be seized from the accused Arvind Shinde vide panchanama (Exh.294). The CDRs (Exh.350) of the said mobile number produced on record through the evidence of Nodal Officer PW.21-Rakesh Prajapati. On going through the CDRs (Exh.350) it reveals that on 27.08.2013, he has contacted with the mobile number 9167455956, which was of PW.16-Rakesh Bijam thrice in between 21:17:12 hrs. to 21:35:40 hrs. Even, on 28.08.2013, calls were made from said mobile to the mobile number 9167470168 of PW.1 at 15:02:40 hrs., 15:07:06 hrs., 15:09:33 hrs. Thereafter, for about eight times calls were made from these numbers to one another till 15:37:48 hrs. At 15:07:08 hrs. the locations of the said mobile was shown at Inorbit Mall. This clearly substantiate the evidence of PW.1-Approver that when he was in Infinity Mall, accused Arvind Shinde made phone calls to him.
164. The mobile no. 9503841240 is of accused-Prakash Nikam. It reveals from the CDRs of the said mobile that from 13.08.2013 to 28.08.2013, the calls were made from these numbers to the number 8097649273, 8652154235, 7738189085, 8879076724, 9167470168 of PW.1-Approver and also on the mobile number 9833265341 of accused Vilas Bharati. It reveals from the CDR that on 28.08.2013, from 13:29:04 hrs. till 16:03:25 hrs., 21 times calls were made from the mobile number 9167470168 to the said number. Similarly, the CDR (Exh.480) of the mobile number 9167470168 shows that the calls were made to the mobile number 9503841240 within the same period. It shows that the PW.1-Approver was in continuously contact with accused ... 127 ...
Prakash Nikam. Moreover, the mobile locations are of the same place.
165. The CDRs of mobile no. 9892677758 (Exh.546), CDR of mobile No. 7738189085 (Exh.547) of PW.1 Approver shows that the calls were made from these numbers to the numbers 9833265341 (A-6 Vilas), 9503841240 (A-8 Prakash), 9594888804 (A-1 Kaushik Rajgour), 9821639570 (A-2 Arvind) and 8224040169 (A-3 Rajendra). Apparently, the mobile no.9594888804 came to be seized from accused vide arrest panchanama (Exh.294). The prosecution through the evidence of PW.27-Vijay Shinde produced the CDRs (Exh.367) of the said mobile number. Ongoing through the CDRs, it reveals that on 27.08.2013, calls were made/received on mobile number 8879076724 of PW.1-Approver. On 28.08.2013, from 14:00:08 hrs. to 16:03:23 hrs, eleven calls were made/received on this number from 8879076724 of PW.1-Approver. On 28.08.2013, last call was made/received on this number at 20:20:44 hrs., so also, from this number, several calls were made on mobile number 9821639570 of accused no.2-Arvind Shinde. This is sufficient to corroborate the evidence of PW.1-Approver that he was in contact with Accused no.1 Kaushik on 28.08.2013 and even therebefore. On 28.08.2013, several calls were made from this number to mobile no.9769612354 of Chetan Desai from 12:17:38 hrs. till 16:03:27 hrs, which indicates that accused no.1-Kaushik was in contact with Chetan Desai and further corelates the evidence of PW.1-Approver.
166. Another CDR (Exh.474) of the mobile number 9833933340 of the Accused no.1-Kaushik is placed on record. The learned SPP submitted that the calls made or received from this number to mobile number 8879076724(PW.1), 9821639570(A-2), 8652154235 (PW.1), 7738189085 (PW.1), 9769612354 (Chetan Desai) and the location of ... 128 ... said mobile on 28.08.2013 after 01:00 pm was at Dahisar, Western Express Highway and at 15:15 hours, it was at Inorbit Mall. It may be so, but, the CDRs (Exh.474) available on record are upto the date 22.08.2013 only.
167. Further, the CDR (Exh.478) of mobile No.9833265341 belongs to accused no.6-Vilas Bharti shows that on 24.08.2013, it was in contact with mobile number 7738189085 of PW.1-Approver from 07:54:09 to 12:05:48 hrs. Then, on 25.08.2013, calls were made on 07:48:22 hrs, and 09:44:16 hrs.. Thereafter, from this mobile on 28.08.2013, contacts was made to mobile number 9167470168 of PW.1-Approver at 19:12:06 hrs. On 24.08.2013, the location of this mobile was at Kopara, Panvel which is at or near the place of firing. This has substantiated the evidence of PW.1-Approver that the accused-Vilas Bharati was also particep criminis.
168. The prosecution also produced the CDR (Exh.368) of mobile no.822404016 belongs to the absconding accsued-Rajendra Yadav @ Tiwari from the evidence of PW.27-Vijay Shinde. Ongoing through the same, it reveals that on 24.08.2013 and 25.08.2013, several calls were made/received on mobile no.7738189085 of PW.1-Approver. On 28.08.2013, at 08:40:01 hrs. and 19:48:39 hrs, calls were made to mobile no.9167470168 of PW.1-Approver. So also, calls were made to mobile no.8976021906 of Dinesh Thakur. On 24.08.2013, the location as per cell ID address (Exh.385) was at Indore. On 25.08.2013, the location of this mobile was in Mumbai. This has left no room of doubt that on 25.08.2013, said mobile number was used in Mumbai. It substantially corroborates the evidence of PW.1-Aprpover. ... 129 ...
169. It is significant to note here that there are many mobile numbers in the name of accused Vilas Bharati. No explanation is given as to why he was using that much mobile numbers. The Customer Application Form filed on record by PW.36-Vilas Naryan Fulkar, PW.27-Vijay Shinde substantiate the fact that the mobile numbers are purchased in the name of Vilas Bharati. Not even that, some of the mobile numbers though in the name of Vilas Bharati were used by PW.1-Approver. This fact is specifically stated by PW.1-Approver. Not only that, the prosecution has recorded the evidence of PW.20-Vilas Damodar Mengal, PW.22-Rahul Hindurao Kamble, PW.24-Mrs.Rubina Selvin Danial and PW.25-Ganesh Bhagwan Didule, in whose names and in the name of Ravindra Gurao the mobiles were purchased, but they do not know about the mobile numbers 9503841240, 9665345263, 8082056879, 9004927608, 9920819482 and 9967170042 belongs to whom. It appears that by obtaining the copy of the document such identify proof etc. of these witnesses, the SIM cards were purchased in their names. The accused Prakash Nikam and others offered no explanation for the possession of said SIM cards number with them.
170. The learned Advocate Mr.Deshpande for accused Rohit Tangappan Joseph strongly argued that during the alleged incident the accused Rohit Tangappan Joseph @ Satish Kalya was lodged in Arthur Road Jail and therefore, he cannot possessed or used any mobile phone. This is true, but, the evidence of PW.1-Approver is very specific that the accused Satish Kalya called him from the mobile number having last digit '424'. As per evidence of PW.43-Milind Digambar Kolwadkar, said mobile number is in the name of Shambhu Singh Sugna Singh Tawar vide CAF Exh.550. The mobile no.9004927608, is though in the name of PW.22 Rahul Hindurao Kamble, but, he deposed that he do not know ... 130 ... about this number. Same is the situation about mobile no.9967170042, which is though in the name of PW.25 Ganesh Bhagwan Didule, bu,t he do not know about this. It shows the modus operandi to purchase the SIM cards by using the identity proof of the others in order to hide their identity.
171. The overall scrutiny of the evidence of PW.1-Approver, inspires confidence that he has narrated the true facts before the Court and made full and complete disclosure of the facts relating to the offence within his personal knowledge. The evidence of PW.1-Approver satisfies the double tests i.e. of reliability and sufficient corroboration from the independent evidence in material particulars. The evidence of PW.1- Approver and the corroborative material clearly demonstrate the involvement of the accused-Prakash Nikam, Rajendra Yadav @ Tiwari, Rohit Vishwakarma, Vilas Bharati, Sunil Kumar Tiwari, Rohit Tangappan Joseph and accused-Rajendra Sadashiv Nikalje @ Chhota Rajan in the offence including his participation. It is reasonably safe to rely upon the evidence of PW.1 Approver. The defence raised by the accused that the PW.1-Approver in order to save himself from punishment and release from jail is deposing false, is not probable. So also, the defence of the accused that PW.1-Approver is the main person behind this crime and he had done the firing to create terror and to get the name and fame in the underworld, do not sounds probable and acceptable.
CONSPIRACY 172. At this stage it would be appropriate to deal with the aspect of conspiracy. Section 120-B of Cr.P.C. provides for punishment for criminal conspiracy. Definition of 'criminal conspiracy' given in section 120-A which reads as follows : ... 131 ...
“Section 120-A- When two or more persons agree to do, cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated as criminal conspiracy; Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some acts besides the agreement is done by one or more parties to such agreement in pursuance thereof.”
Thus the essential ingredients of the offence of conspiracy are : (i) an agreement between two or more persons: (ii) the agreement must relate to doing or causing to be done either (a) an illegal act, or (b) an act which is not illegal in itself but is done by illegal means.
173. It is therefore plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. The Hon'ble Apex Court in the matter of State Vs. Nalini reported in 1999 SCC (Cri) 691 held that, “the agreement amongst the conspirator can be inferred by necessary implication. The agreement may be expressed or implied or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made and the offence continues to be committed so long as the combination persists that is until the conspirational agreement terminated by completion of its performance or by abandonment or frustration or however, it may be. It is also settled that conspiracies are secretly planned and direct evidence is therefore, difficult to produce.”
174. Certainly, the conspirators invariably deliberately, plan and act in secret. However, the evidence of PW.1-Approver is an exceptional to this as he is himself was a party to the conspiracy. He specifically deposed ... 132 ... that during the meeting with accused Satish Kalya, Prakash Nikam, Kaushik Rajgour and Arvind Shinde, they conspired to eliminate Ajay Gosaliya, in order to get benefit to the gang of accused-Chhota Rajan. Thus, the aspect of conspiracy is proved by the prosecution through the evidence of PW.1-Approver. In fact, while discussing about the corroboration to the evidence of PW.1 Approver, the role of each of the accused joining the conspiracy is discussed and substantiated. No doubt, the accused Vilas Bharati was not present at the time of executing the task of committing murder of Ajay Gosaliya on 28.08.2013 in front of Infinity Mall, but, the evidence brought on record shows that he just missed the target. He has not back up from the conspiracy. In fact, he could not reach to the place of occurrence, in time.
175. It is settled that for the conspirators, it is not necessary that each of them must have actively participated in the commission of the offence or was involved in it from start to finish. What is important is that they were involved in the conspiracy or in other words, there is combination by agreement, which may be express or implied or in part implied. The Hon'ble Supreme Court in the matter of K. Hasim (cited supra) while dealing with aspect of conspiracy held that, “The elements of criminal conspiracy have been stated to be (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish the persons wherby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute requires it, an overt act. Offence of criminal conspiracy not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such design rests in the intention only, it is not indictable. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is ... 133 ...
framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and the object of the combination need not be accomplished in order to constitute an indictable offence. When two agree to carry it into effect, the very plot is an act in itsef, and an act of each of the parties, promise against promise, actus contra capable of being enforced if lawful, punishable it for a criminal object or for use of criminal means. Encouragement and support which co- conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. For an offence punishable under section 120-B the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done an illegal act; the agreement may be proved by necessary implication.”
176. In view of the above ratio, though, the accused Vilas Bharati has missed the target, but, the other accused acted in furtherance of the conspiracy/common design. Therefore, the role of the accused Vilas Bharati in the offence could not be swiped out or minimize. Similar is the situation in respect of the accused Sunil Kumar Tiwari @ Piyush. His act does and did indicate that he joined the conspiracy and become part of it. Moreover, his confessional statement also came to be recorded under Section 18 of the MCOC Act which is to be discussed in detail in further part of the judgment. In this situation, the prosecution has substantially proved that the accused conspired together along with PW.1-Approver to commit the murder of Ajay Gosaliya.
OFFENCE UNDER MCOC ACT 177. It has come in the evidence of PW.52-IO API Chimaji Adhav that ... 134 ... during investigation, it transpired to him that the offence was committed by the Organized Crime Syndicate. He got confirmed that more than one offence were registered against the accused-Chhota Rajan in which punishment is provided for more than 3 years and court has taken cognizance of the same. He obtained certified copies of the charge-sheet (Exh.407) and (Exh.409). It reveals from the certified copies that those are received on 24.09.2013 and 18.10.2013 respectively. He also obtained the certified copy of the charge-sheet in C.R. No.57/2011 (Exh.662) on 16.09.2013. Accordingly, he forwarded the proposal to the Joint C.P. (Crime) for addition of the sections under the provisions of MCOC Act in the crime. He further deposed that on 26.09.2013, the Joint C.P. (Crime) accorded permission to add offence under MCOC Act in the crime. Accordingly, the sections 3(1)(ii), 3(2), 3(4) of the MCOC Act came to be added in the offence and further investigation was transferred to ACP Arvind Mahabadi, D-1 North Division, as per order of Joint C.P. (Crime). It is pertinent to note here that the prosecution placed on record copy of the prior approval (Article-X-58), but, the same cannot be exhibited, as the signatory i.e. then Joint Commissioner of Police (Crime), Mumbai Mr.Himanshu Roy is no more. In fact, the prosecution could have proved the same through the evidence of PW.40-Dr.Satyapal Singh. However, the fact cannot be disputed that after granting prior approval on 26.09.2013 itself, the Sections under the provisions of MCOC Act came to be inserted in the offence. Further, after completion of investigation by PW.54-ACP Arvind Mahabadi and PW.48-ACP Sunil Laxman Deshmukh, the charge-sheets came to be filed in the special court after granting sanction (Exh.522) under Section 23(2) of the MCOC Act by then Commissioner of Police Mumbai, Dr.Satya Pal Singh on 14.01.2013. It is necessary to point out here that initially the charge-sheet (Exh.1) came to be filed against ... 135 ... accused-Kaushik Baldev Rajgour, Arvind @ Arvya Pandurang Shinde, Rajendra Singh @ Bhaisaheb @ Tiwari Haricharan Singh Yadav, Rohit @ Rotu Prabhudayal Vishvakarma, Sunil Kumar @ Piyush Gaurishankar Tiwari, Vilas Jitendra Bharti, Amit Kishor Sinha and the accused- Prakash @ Pakya @ Bhau Ashok Nikam, Rohit Tangappan Joseph @ Satish Kalya and Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir were shown as absconding. Thereafter, PW.48-ACP Sunil Deshmukh filed supplementary charge-sheet (Exh.606) against accused- Rohit Tangappan Joseph and accused-Prakash Nikam vide Exh.604. After the arrest of the accused-Rajendra Sadashiv Nikalje @ Chhota Rajan, CBI took over the investigation of this crime and then, filed supplementary charge-sheet against previous accused and accused- Rajendra Sadashiv Nikalje @ Chhota Rajan vide Exh.760.
178. In order to constitute the offence under Section 3(1)(ii), 3(2) and 3(4) of the MCOC Act, the prosecution must have to prove that the offence was committed by the organized crime syndicate headed by accused-Rajendra Sadashiv Nikalje @ Chhota Rajan. Therefore, at the first instance, it is necessary to understood what is organised crime and organised crime syndicate, which are defined in section 2(e) and 2(f) of the MCOC Act :- (e) "organised crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency;
(f) "organised crime syndicate" means a group of two or ... 136 ...
more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime.
179. Needless to say that, to attract any of the provision under section 3 of the MCOC Act, prosecution is required to establish the existence of the organised crime syndicate and that, such syndicate or gang is indulged in activities of the organised crime. It is necessary for the prosecution to show that there exist such gang that is a group of two or more persons acting either singly or collectively as a syndicate and are indulged in activities of organised crime. More so, the activity must be continuing unlawful activity which is defined as :- (d) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence.
180. The definition of unlawful activity requires that prior charge- sheets should be in respect of : (i) an activity prohibited by law for the time being in force, (ii) activity which is a cognizable offence. (iii) it should be punishable with imprisonment of three years or more. (iv) that competent court has taken cognizance of such offence, (v) such activity should have been undertaken either singly or jointly as a member of an organised crime or of such syndicate, and all this should be within the span of preceding 10 years. ... 137 ...
181. In the evidence of PW.52-API Chimaji Adhav, the prosecution brought on record the copies of charge-sheet (Exh.662) in Crime No.57/2011 registered with Powai Police Station against accused-Rohit Tangappan Joseph @ Satish Kalya, in which, the accused-Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir also shown as one of the accused. Besides this, the prosecution also examined PW.29- ACP Subhash Balasaheb Jadhav, then PI of Nirmal Nagar Police Station and PW.30-Avdhoot Shivaji Chavan, then PI of D.N. Nagar Police Station and brought on record the following charge-sheets (Exh.407 and Exh.409 respectively).
Sr. Police Crime Date of Offence Against accused Nos. Station No. FIR under Sections 1 Nirmal 35/2005 17.02.2005 387 of Rohit Tangappan Nagar Police IPC Joseph @ Satish Station Kalya 2 D.N. Nagar 545/2006 14.12.2006 120(B), Jafar Khan @ Police 302, 115 Malik @ Abbas Station of IPC Rafique and and others in which Sections Rajendra Sadashiv 3,7,10,25 Nikalje @ Chhota of the Rajan @ Nana @ Arms Act. Seth shown as wanted accused.
182. PW.29-PI Subhash Jadhav and PW.30-ACP Avdhoot Chavan specifically deposed that the Court has taken cognizance of the offence against the accused. Apparently, the offences are committed in the years 2005 and 2006. The punishment provided for the said offences are more than 3 years and the Court has taken cognizance of the same. More so, this activity is prohibited by law. Filling of the two charge- ... 138 ... sheets on record, satisfied the ingredients of organized crime, organised crime syndicate and continuing unlawful activity.
183. The learned Advocate Mr.Deshpande argued that the charge-sheet (Exh.407) is filed only against the accused-Rohit Tangappan Joseph, which is his individual act and cannot be said as an offence committed by him being the member of an organized crime syndicate. It is argued that the requirement of the filing of two charge-sheets must be against the head of the gang. Apparently, the charge-sheet Exh.407 is filed against the accused-Rohit Tangappan Joseph @ Satish Kalya only. The definition Section 2(d) of continuing unlawful activity and 2(e) of organized crime defined that an activity prohibited by law must be undertaken either singly or jointly. It is nowhere the requirement of both these sections that the charge-sheets must have been filed against the head of the organized crime syndicate alone or jointly. Even otherwise, ongoing through the contents of the FIR annexed with the charge-sheet (Exh.407), especially, in the column of particulars of the accused, there is specific mention of the name of accused-Satish Kalya (related to Chhota Rajan Gang). It suggests that the alleged act was committed by accused-Satish Kalya in concern with the Chhota Rajan gang. Moreover, PW.52-API Adhav during his evidence also filed the certified copy of charge-sheet Exh.662 on record of the crime No.57/2011 registered with Powai Police Station, in which, there is specific mention of the accused-Rohit Tangappan Joseph @ Rohi @ Satish Kalya @ Sir with wanted accused-Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir. This is sufficient to establish that more than one charge-sheet have been filed before the Competent Court within the preceding period of 10 years against the accused, which amounts to continuing unlawful activity. ... 139 ...
184. It seems that relying on the same charge-sheets then Joint C.P. (Crime) granted prior approval under Section 23(1) of the MCOC Act for invoking the provisions of section of MCOC Act in the offence on 26.09.2013. In view of Section 23(1)(b) of MCOC Act, the investigation of the offence shall not be carried out by an officer below the rank of Deputy Superintendent of Police. Accordingly, the investigation of the said crime was entrusted to PW.54-ACP Arvind Mahabadi who is an officer not below the rank of Deputy Superintendent of Police. After completion of investigation and satisfied about the continuing unlawful activity of the organized crime syndicate headed by accused-Chhota Rajan, the then Commissioner of Police of Brihan Mumbai, PW.40- Dr.Satya Pal Singh accorded sanction under Section 23(2) of the MCOC Act. He deposed that he found enough evidence collected against the accused persons for the offences under the provisions of Section MCOC Act. Accordingly, he issued the sanction order (Exh.521) dated 20.11.2013 under section 23(2) of the MCOC Act.
185. It is argued by the learned Advocate Mr.Pasbola and Advocate Mr.Shetty that PW.40-Dr.Satya Pal Singh accorded the sanction mechanically. Attention is invited towards his cross-examination, wherein, he admit that he cannot give the details of statement of witnesses, panchanama, TIP panchanama, recovery panchanama, CDRs and confessional statements which were placed before him at that time. Certainly, the evidence of this witness is recorded on 27.08.2018 i.e. after five years of according sanction. Therefore, it is not excepted that he should know these details in minute.
186. The learned Advocate Mr. Pasbola further argued that even the ... 140 ... sanctioning authority do not know how many charge-sheets were placed before him at that time. However, PW.40 volunteers that more than one charge-sheet was placed before him. He admits that the sanction order Exh.521 does not show whether the previous charge- sheets were filed within 10 years, whether the offences were punishable with imprisonment of three years or more and against whom the charge-sheets were filed. Apparently, this can be revealed from the sanction order itself, however, that does not mean that there was no application of mind for according sanction.
187. The learned Advocate Mr.Pasbola strenuously argued that the prosecution must have proved that the organized crime syndicate has committed the crime with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency. It is argued that the prosecution has absolutely failed to prove all these objectives behind commission of the crime by the organized crime syndicate. It is argued that there was no demand of extortion from PW.33-Ajay Gosaliya. Attention is drawn towards cross-examination of PW.40-Dr.Satya Pal Singh, wherein, he was unable to recall what was the pecuniary benefit or other undue financial benefit involved in the offence. He do not recall what documents were placed before him regarding the other pecuniary benefits or other undue financial benefits involved in this offence. He admit that the sanction order (Exh.521) does not show what was the pecuniary benefit or other financial benefit involved in this case. On this, PW.40-Dr.Satyapal Singh replied to these questions very casually. It is not excepted from such high rank official to reply in such fashion, when the aspect of object of any pecuniary benefit or other financial benefit is important to establish the offence under MCOC Act. In this ... 141 ... regard, the evidence of PW.42-Senior PI Pradeep Sharma is crucial, wherein, he deposed that Chhota Rajan gave interview on Star TV to eliminate him, Ajay Gosaliya, Dharmaraj Singh and Pappu Savala in order to create panic in the business community to extort money. This indicates that if the injured Ajay Gosaliya have been murdered in the incident then that has caused panic in the business community which might have helped the gang of Chhota Rajan to create terror and to extort money. This objective of the organized crime syndicate cannot be overlooked. Here, it is necessary to opt to rely on the Full Bench judgment of Hon'ble Bombay High Court in the matter of State of Maharashtra Vs. Jagan Gagansingh Nepali @ Jaggya and another reported in 2011(5) Mh.L.J.386, in which it is held that, " Para 33 – It is pertinent to note that in both Statements of Objects and Reason and the Preface, though certain activities have been mentioned the same are followed by the term 'etc'. It is thus, clear that the activities mentioned in the Statement of Objects and Reasons and the Preface are only illustrative in nature and not exhaustive. It is thus clear that the legislative intent is not only to curb only the activities mentioned in the Statement of Objects and Reasons and the Preface but to curb various other activities of the organised crime syndicate so that unlawful element spreading terrorism in the society can be controlled to a great extent, with an intention that the feeling of fear spread in the society is minimized.
Para 34 – It can, thus, clearly be seen that the purpose behind enacting the MCOC Act was to curb the activities of the organised crime syndicate or gangs. The perusal of the Preamble and the Statement of Objects and Reasons and Preface, in our considered view, does not lead to any narrower meaning that MCOCA has been enacted only for the purpose of curbing activities which involve pecuniary gains or undue economic advantages. The mischief which is sought to be cured by enactment of MCOCA is to curb and control the menace of organised crime. The law has been enacted with the hope that the elements spread by the ... 142 ...
organised crime in the society can be controlled to a great extent and for minimizing the fear spread in the society. If a narrower meaning as sought to be placed is accepted, it will frustrate the object rather than curing the mischief for which the act has been enacted.”
188. This view is also reiterated by the Hon'ble Bombay High Court in the matter of Narendra Singh @ Dallu Sardar Vs. State of Maharashtra reported in 2015 All MR (Cri) 54.
189. It is significant to note here that in the aforecited judgment of Jagan Nepali @ Jaggya, the judgment of Hon'ble Supreme Court in the matter of Ranjeetsingh (cited supra) and that of Hon'ble Bombay High Court in the matter of Sherbahadur (cited supra) were relied upon. It is held in clear terms that the scope of the word 'other advantage for himself or any other person' and 'etc' cannot be narrowed down.
190. In the backdrop of the above pronouncements, a wider meaning is to be given to the term 'other advantages'. In this regard, the evidence of PW.1-Approver is crucial, wherein, he deposed that accused-Satish Kalya told him that if Ajay Gosaliya dies, the Chhota Rajan Gang would be benefited. This benefit must necessarily means to create terror/panic in the business world and then to take benefit of the same to extract money. Certainly, such act is covered under the term 'other advantage', which was the objective behind the attempt to commit murder of Ajay Gosaliya. As such, there is no substance in this ground raised by the defence that the prosecution has failed to prove the objective of gaining pecuniary benefits, or gaining undue economic or other advantage.
191. The learned Advocate Mr.Deshpande argued that except the ... 143 ... sanction order issued by PW.40-Dr. Satya Pal Singh for filing charge- sheet against the arrested accused, no other sanction order in respect of accused-Prakash Nikam, Rohit Tangappan Joseph @ Satish Kalya and accused-Rajendra Sadashiv Nikalje @ Chhota Rajan proved by the prosecution. The learned Advocate Mr.Deshpande pointed out that PW.48-ACP Sunil Deshmukh stated that prior to filing of charge-sheet against accused-Prakash Nikam he received a sanction of prosecution on 30.07.2014, so also, on 20.11.2014 before filing charge-sheet against accused-Satish Kalya. It is argued that both the sanction orders though placed on record are not proved by the prosecution by examining the concerned sanctioning authority. As such, unless the sanction order is proved the accused-Prakash Nikam, Rohit Tangappan Joseph and Chhota Rajan cannot be prosecuted for the offence under the MCOC Act. No doubt, though as per evidence of PW.48-ACP Sunil Deshmukh, he has separately obtained the sanction for filing charge-sheet against accused-Prakash Nikam, Rohit Tangappan Joseph and Chhota Rajan, but, that is not the requirement of law. PW.40-Dr.Satya Pal Singh already accorded sanction (Exh.521) under Section 23(2) of the MCOC Act for prosecution against all the arrested and wanted accused. It is settled that the cognizance of mainly of the offence is required to be taken and not the offender. Therefore, though the prosecution has failed to examine the remaining two sanctioning authority, the sanction accorded by PW.40-Satya Pal Singh vide Exh.521 cannot be said as defective. As such, there is no substance in this ground raised by the accused.
192. In the sequel of the above discussions and consequent to the evidence of PW.1-Approver, the prosecution has sufficiently proved that the offence has been committed by the accused being the members of ... 144 ... the organized crime syndicate headed by accused-Chhota Rajan. More so, the offence has been committed for the benefit of the organized crime syndicate.
CONFESSION OF THE ACCUSED NO.5 193. The prosecution heavily relied on the confessional statement recorded of the accused-Sunil Tiwari. The confessional statement of this accused came to be recorded as per section 18 of the MCOC Act and rules framed thereunder. For the sake convenience the provisions of section 18 of the MCOC Act and Rule 3 of Maharashtra Control of Organised Crime Rules 1999 are reproduced as follows :- 18. Certain confessions made to police officer to be taken into consideration.
(1) Notwithstanding anything in the Code or in the Indian Evidence Act 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator:
Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
(2) The confession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.
(3) The Police Officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon ... 145 ...
questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same.
(4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special Court which may take cognizance of the offence.
(5) The person whom a confession has been recorded under sub- section (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (4) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay.
(6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon.
The Maharashtra Control of Organised Crime Rules, 1999.
3. Procedure for recording of confession under section 18 of the Act-
(1) The Police Officer recording a confession under section 18 of the Act shall record it as provided in sub-rules (2) to (7) of this rule.
(2) When the person whose confession is to be recorded is produced before such Police Officer, no Police Officer who has taken part in the investigation of the offence in connection with which the confession is being recorded, shall be allowed to remain present at the time of recording of the confession. ... 146 ...
(3) the Police Officer recording the confession shall explain to the person making the confession that he is not bound to make such confession and that if he does so, such confession may be used as evidence against him.
(4) After having been so explained and warned, if such person adheres to his intention and insists on making a confession, the concerned Police Officer, who is to record the confession shall give, not less than 24 hours time to the person making the confession for reconsideration of his decision to make confession.
(5) After elapsing of the time given under sub-rule(4), when such person is again brought before such Police Officer, he shall once again ascertain from the person intending to make the confession whether he is still willing to make a confession. Upon such person reiterating his desire to make a confession, the concerned Police Officer shall record in writing the confession of such person in the same language and as narrated by the confessor.
(6) The confession recorded under sub-rule (5) shall, if it is in writing, be signed by the person who has made such confession and by Police Officer, who has recorded the said confession. Such Police Officer shall, under his own hand, also make a memorandum at the end of the confession to the following effect :-
"I have explained to (name of the confessor) that he is not bound to make a confession and that, if he does so, any confession that he makes, may be used as evidence against him and I am satisfied that this confession has been made voluntarily. It has been made before me and in my hearing and has been recorded by me in the language in which it is made and as narrated by, the confessor. I have read it over to the confessor and he has admitted it to be verbatim and correct, and containing also full and true account of the confession/statement made by him".
(7) Where the confession has been recorded on any mechanical device, the memorandum referred to in sub-rule (6) above, in so far as it is applicable, shall be incorporated in the form ... 147 ...
of a declaration made by the Police Officer recording the confession, by recording such declaration on the mechanical device at the end of the confession to the effect that the confession recorded on the mechanical device has been correctly recorded in his presence and hearing and that the recorded statement/confession has been played back to the confessor and after hearing it, it has been admitted by him to be full, correct and without any technical faults in recording.
(8) The Police Officer recording the confession shall, after forwarding the certified copy of the confession made or retraction, if any, thereof, to the Chief Magistrate or the Chief Judicial Magistrate as provided in sub-section (4) of section 18 of the Act and after ascertaining that the Chief Magistrate or the Chief Judicial Magistrate has, as provided in sub-section (6) of the said section 18, forwarded the confession to the Special Court for taking cognizance of the offence, supply a copy of the confession recorded by him to the Investigating Officer, who is concluding investigation into the offence in connection with which, or relating to which, such confession has been made, for the purpose of investigation.
194. The principle behind acceptability of confessions is found in latin maxim “habemus optimum testem, confitentem reum”, means that confessions of an accused is the best evidence against him. The rational behind this principle is that an ordinary, normal and sane person would not make the statement which would incriminate him unless urged by the promptings of truth and conscience.
195. The Hon'ble Supreme Court in the matter of State (NCT of Delhi) V/s. Navjot Sandhu @ Afsan Guru reported in 2005 Supreme Court Cases (Cri) 1715 held that, “Before acting upon a confession the Court must be satisfied that it was freely and voluntarily made. Section ... 148 ...
24 of the Evidence Act lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a Criminal Proceeding. The expression “appears” connotes that the Court need not go to the extent of holding that the threat, etc. has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the Court will refrain from acting on such confession, even if, it be a confession made to a Magistrate or a person other than a Police Officer. Further, the confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the Court should eschew the confession from consideration. Recognizing the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in Police Custody the Evidence Act has excluded the admissibility of a confession made to the Police Officer.
Para-36 : The twin tests to be applied to evaluate the confession are: (1) whether the confession was perfectly voluntary, and (2) if so, whether it is true and trustworthy. If the first test is not satisfied the question of applying the second test does not arise. One broad method by which a confession can be evaluated is that the Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances it may be taken to have satisfied the second test.
196. In view of the above pronouncement, before accepting any statement of the accused as confession, it has to pass following tests :- (i) Whether the statement to have been made by the accused is confession ? and whether such confession is voluntarily ? ... 149 ...
(ii) Whether the confession is truthful ?
(iii) What is the value of the confession as against the maker and the co-accused ?
197. The Section 18 of the MCOC Act provides that the confessions made before Police Officers are admissible in the trial of such person or co-accused or abettor or conspirator. It is settled position of law that the confession of the accused can be fully acted upon on the facts and circumstances of each case. Therefore, it is now necessary to ascertain whether in the facts and circumstances of the present case, the confession of accused could be acted upon or not.
198. Further as per Section 18 of the MCOC Act, a confession made by a person before a Police Officer must not below the rank of the Superintendent of Police. In the present case, the confessional statement of the accused-Sunil Kumar @ Piyush Gaurishankar Tiwari is recorded by PW.51-Pravinkumar Chudaman Patil, who is the police officer of the rank of Deputy Commissioner of Police. Therefore, the basic condition of recording of confessional statement by the Police Officer not below the rank of Superintendent of Police is complied with.
199. It has come in the evidence of PW.54-Arvind Mahabadi that on 03.10.2013, the accused-Sunil Kumar Tiwari expressed his wish to confess to ACP Praful Bhosale. On 03.10.2013 itself, ACP Praful Bhosale made proposal to record confessional statement of accused-Sunil Kumar Tiwari. The prosecution examined PW.51-Pravinkumar Chudaman Patil who was the Deputy Commissioner of Police, Zone-12, Mumbai in October 2013. He deposed that on 05.10.2013, he received letter from ... 150 ...
Joint CP Crime Mumbai for recording confessional statement of accused-Sunil Kumar @ Piyush Gaurishankar Tiwari in the offence registered with DCB CID Crime No.84/2013 and ACP, D-1 North was the IO of that crime. He was nominated as per section 18 of the MCOC Act to record confessional statement of the accused. Accordingly, he issued request letter (Exh.637) to ACP, D-1 North to produce accused-Sunil Tiwari before him on 06.10.2013 at 15.00 hrs. He also issued letter (Exh.639) to Senior PI, Dahisar Police Station to keep one police team present at his office on 06.10.2013 at 2.30 pm.
200. PW.51-Pravinkumar Chodaman Patil further deposed that on 06.10.2013, team of Dahisar Police Station headed by PSI Shingade reported to his office at around 2.30 pm. He told them to stay outside. At around 03:00 pm, API Adhav of DCB CID produced the accused-Sunil Kumar along with letter (Article-X-69) of ACP, D-1. He obtained the brief information about the offence from API Adhav and ascertained that the offence was committed within the jurisdiction of Brihanmumbai Police Commissioner. He gave letter (Exh.640) to API Adhav about taking custody of accused-Sunil Kumar. After they went from his office, at about 16:05 hrs., accused-Sunil Kumar was called before him. At that time, he himself and the accused were only in his Chamber.
201. He further deposed that he talked with the accused and asked his name, age, address and occupation. He also asked him when he was arrested in the offence and whether he was threatened, assaulted or allured by anybody. He also asked him why he was giving confessional statement. He was made aware that now he was not in custody of Investigating Officer and he was having no concern with the said offence and now he was in his custody. He also made him aware that if ... 151 ... he gave confessional statement, it can be used against him and his associates. He asked him still whether he was ready to give confessional statement. On which, the accused replied in the affirmative. He asked him about his health and when his medical examination was performed. The accused told him that he was in good state of health and his medical examination was performed in the morning. He told him that he was not bound to give confessional statement. As the accused was able to understand in Hindi language properly, he put these questions to him in Hindi. He told the accused to think over again and he would give more than 24 hours to think. On that, the accused assented and stated to give statement after thoughtful consideration. He told and gave him time upto 11:00 am of 08.10.2013. Then, he started writing all the questions and answers given by the accused on a paper in his own handwriting. He also noted down the nature of offence etc. He read over the contents of it. The notings which he took in English also made understand to the accused in vernacular. The portion which was written in Hindi gave to the accused to read. The accused affirmed it and put his signature over it. Thereafter, he endorsed and put his signature over it. The confessional statement Part-I is at Exh.641. He took out one xerox of Exh.641. The original and xerox was put in separate envelope. He sealed the original confession part I and kept both in his personal custody.
202. On going through the confessional statement part 1, it is of dated 06.10.2013 and the time mentioned in it is 16.05 hours. Initially, the introductory part is written by PW.51-Pravinkumar Patil in English in his own handwriting. Then from part of Para no.5, the questions were put to the accused in Hindi. The questions and answers are written in the handwriting of PW.51 itself in Hindi language. Thereafter, the signature ... 152 ... of accused obtained below it and at the bottom, PW.51 issued Certificate and took his signature over it. The portion which was written in Hindi in question-answer form was made to know to the accused and also to make him aware that PW.51 is a Deputy Commissioner of Police. He was also given understanding that he was not bound to give the confessional statement and if it is given then it can be used against him and the co- accused. The accused is also been asked why he want to confess, on which he told that he want to repent on his mistake.
203. Then, PW.51-Pravinkumar handed over the accused in the custody of PSI Shingade. He gave instructions to PSI Shingade and even write letter (Exh.643) to Senior PI that the accused should be kept in separate custody, he should be guarded properly, his medical examination to be performed and he should not be allowed to meet or talk with anybody. He also directed PSI Shingade to produce the accused before him on 08.10.2013 at 11:00 am after his medical examination. On 08.10.2013, at 11:00 am, PSI Shingade and his team produced accused-Sunil Kumar after performing his medical examination before him. The accused came in his chamber at 11:30 am. He verified the medical examination report of accused-Sunil Kumar produced by PSI Shingade. Then he asked PSI Shingade to go out of his chamber. He confirmed that nobody was standing or watching inside his chamber. That time, accused and he himself were only in the chamber. He was in Civil dress. He told the accused-Sunil Kumar that he was not in police custody and no police officers of concerned Police Station were present. He talked to him. He asked him as to how was his health. He asked him whether the period given to think was sufficient or he want more time. He asked him whether he was ready to give statement. He asked him whether he was under any pressure, threat or allurement. He ... 153 ... again told him that he was not bound to give statement and if he gives statement it will be used against him and his associates. The accused told him that he was ready to give statement. He told him that whatever was stated uptill then and to be stated further would be written. Then, he assured that the accused was willing to give confessional statement voluntarily.
204. Then, he started writing the Part-II of the confessional statement. He asked the questions to the accused in Hindi and written the same. Introductory part, he wrote in English and thereafter, he recorded the confession of the accused in Hindi language. The accused told him his name as 'Sunil Kumar @ Piyush Gaurishankar Tiwari' with other particulars of his education, occupation and residence, which he recorded in confession Part-II. The accused told him that, “In 2008, he took the driving license and since then, he was doing the work of driving. In July-2013, he left the work of driving for some reason. That time he was jobless and was wondering for the search of work. He acquainted with one Amitbhai of Thane. He told that said Amitbhai was having terror in that area. Amitbhai told him that if he joined his company he would have a luxurious life. On 27.08.2013, he received phone call from Amit and he demanded a vehicle to go to Sakinaka on 28.08.2013. He hired a vehicle Tavera MH04AE4792 from Ravi Davande. Accordingly, he informed to Amit. Amit told him to go and stay near the S.T. stand of Thane Railway Station on 28.08.2013 at around 11:00 am. Accordingly, when he was standing near S.T. stand one person boarded his car and sit by the side of his seat. Said person told him that he was sent by Amit and they have to go to Kalwa. Thereafter, when they went to Kalwa again two persons boarded the vehicle and sit on the backside of the driver seat. The person who sit at Thane during discussion told his name as 'Prakash Nikam' and asked him to take the vehicle to Sakinaka. While moving in the vehicle Prakash Nikam told him that they have to go to Goregaon and not to Sakinaka. He took the vehicle towards Goregaon and the ... 154 ... person who were sitting behind the driver seat told their names as 'Rajendra Singh' and 'Rohit'. At 2:30 pm, they reached near Inorbit Mall Goregaon West. Amit and one person came there on motorcycle and met him. Amit said them to follow him. Amit was riding the motorcycle and they went behind him. In front of Inorbit Mall, Amit told them to go and have some drink. When he came back after drinking water, he saw that the bag which Prakash was holding was empty which was initially filled up. He noticed that initially those persons have not in their shirts and then, he saw them while in their shirt. Thereafter, Amit was driving the motor cycle and they were following him. At around 03:30 pm, they reached near Infinity Mall, Link Road, Malad (West). Amit gave the motorcycle to the pillion rider and he went by walking inside the Infinity Mall. After 15 minutes, Prakash Nikam received phone call of Amit on his mobile. Prakash told to the other persons to keep ready. They load their pistols. Prakash told them “Rajanbhai ka kaam hai koi galati mat karo nahi to lavade lag jayenge.” Those three persons got down from the vehicle and Prakash told him to park his car in front of signal near Infinity Mall and keep the car in start condition. Accordingly, he took his vehicle ahead and by taking U turn parked his vehicle at signal in front of Infinity Mall. At around 04:00 pm, he heard shouts of firing towards Infinity Mall. When he saw in that direction, he saw that Prakash and others were firing by pistol. The person on whom they made fire rushed inside the Mall and they three persons came towards the vehicle by running with firearms in their hand. They boarded the vehicle. By watching this incident, he was frightened and forgot to drive the vehicle. At that time, Rohit slapped him on back and Prakash pointed his firearm towards him and told “Madarchod, gadi nikal dekhta kya ?”. He took the vehicle towards Inorbit Mall, he took left turn towards S.V.Road. The weapons firearms were put in one bag. They gave him threat not to disclose about the incident or he will face consequences. They gave him Rs.2000/- towards fare of vehicle. Those three persons dropped down at S.V. Road along with their bag and went away. Thereafter, via Ghodbandar, he went to Thane. He gave Rs.2000/- to Ravi Davande and returned his vehicle. Then, he consumed liquor and go to sleep. On the next day, while watching T.V., he came to know that the three persons fired on person name ... 155 ...
Ajay Ganda. As he was frightened, he went to Nashik and then to U.P. After around 20 days, he came back to his house at Thane. Police arrested him on 20.09.2013.”
205. Further PW.51-Praveenkumar Chudaman Patil deposed that he was writing the confessional statement in his handwriting while accused was narrating to him. After recording confession statement, he read over the contents of it and also given for reading to accused. The accused found it correct and put his signature over it. He and accused Sunil Kumar signed on each and every page of the confession statement Part II. He put his endorsement and signature at the last. He prepared the memorandum/certificate in his own handwriting and put his signature. The confessional statement Part II is at Exh.644. He took out a xerox copy of confessional statement (Exh.644). The original confessional statement put it in sealed envelope. He prepared a letter (Exh.647) to Chief Metropolitan Magistrate, Mumbai indicating recording of confessional statement of accused Sunil Kumar under Section 18 of the MCOC Act and about forwarding the accused with confessional statement Part-I and II. He gave letter (Exh.648) to PSI Shingade to produce the accused before Chief Metropolitan Magistrate. Thereafter, PSI Shingade informed him that he produced the accused before C.M.M. Mumbai and then gave custody of the accused to IO ACP, D-1. PSI Shingade also submitted the letter given by him to ACP, D-1 about handing over custody of accused-Sunil Kumar.
206. Thereafter, on 14.10.2013, IO ACP, D-1 issued letter to him to have the copy of confessional statement of accused-Sunil Kumar. Accordingly, he issued the copy of confessional statement to ACP, D-1 with covering letter (Exh.649). ... 156 ...
207. In order to corroborate the evidence of PW.51-Praveenkumar that for the reflection period, the accused was kept in the lock up of Dahisar Police Station, the prosecution examined PW.35-Vijay Rakhama Shingade. He deposed that on 06.10.2013, at about 11.00 am to 11.30 am, he went to the office of DCP, Zone-12, as per directions of Senior PI for taking custody of an accused-Sunil Tiwari along with 3 guards. After going there, he first met the DCP. He was directed to stand outside his chamber. Thereafter, the staff of the Crime Branch, Unit No.11 brought the accused. They took the custody of the accused from them and produced the accused before the DCP. The officers of Crime Branch, Unit no.11 who had brought the accused left that place after handing over the custody of the accused to them. After he produced the accused before the DCP, the DCP recorded his statement and after some time the custody of the accused was again handed over to them. When the statement of the accused was being recorded by the DCP, they were standing outside his chamber. When he went inside alongwith the accused, only the DCP and the accused were there in his chamber. After the statement of the accused was recorded, the custody of the accused was again handed over to them alongwith a letter issued by the DCP. After taking the custody of the accused from the DCP, they lodged him in on the 1st floor of the Borivali General Lock-Up. A guard was appointed for the room in which the accused was kept. The accused was kept under their vigilance. The DCP had directed that proper security should be provided to the accused, that nobody should be permitted to meet him and, that nobody should try to pressurize him. They were also directed to produce the accused before DCP, Zone-12 on 08.10.2013. On 06.10.2013, before the accused was taken in custody from the staff of Crime Branch, Unit no.11, the medical examination of the accused was ... 157 ... already conducted through the staff of Crime Branch, Unit no.11. Between 06.10.2013 and 08.10.2013, the accused was kept under security. On 08.10.2013, the accused was produced before the DCP. The DCP then recorded his statement. After the statement of the accused was recorded, his custody was again handed over to them by the DCP. They were also given two sealed envelopes and one letter issued by the DCP. The two sealed envelopes were addressed to the Esplanade Court. He was given the instructions in writing. After taking the custody of the accused, they first got him medically examined and produced him before the Esplanade Court. He handed over the letter to the Court- Clerk. Thereafter, he produced the accused before the Ld. Chief Metropolitan Magistrate. Thereafter, he went outside the Court room. After the statement of the accused was recorded by the Court, the custody of the accused was again handed over by the Court to him. After taking the custody of the accused, he handed over the accused to the staff of Crime Branch, Unit no.11 which had come to the Court alongwith the letter which was addressed by him to the ACP.
208. The evidence of PW.35-PSI Vijay Shingade is in consonance with PW.51-DCP Praveen Chodamal Patil about handing over custody of the accused to him for the reflection period. His evidence is also specific that at the time of recording statement of accused by PW.51- Praveenkumar Patil, no one was present in the chamber except the accused and PW.51-Praveenkumar. He specifically stated that the team of Unit 11 of the crime branch left that place after handing over the custody of the accused to him. He specfically deposed that PW.51- Praveenkumar gave him instructions to keep the accused in separate custody etc. The letter (Exh.643) given by PW.51-Praveenkumar Patil to Sr.PI Dahisar Police Station is self explanatory about the instructions ... 158 ... given in respect of keeping the accused in custody. The fact that the accused given in custody of PW.35-PSI Shingade on 06..10.2013 and then directed to be produced on 08.10.2013, indicates that sufficient time for reflection was given to the accused.
209. It is pertinent to note here that in view of Rule 2 of the Maharashtra Control of Organized Crime Rules, 1999, no police officers who has taken part in the investigation of the offence in connection with which the confession is being recorded, shall be allowed to remain present at the time of recording of the confession. PW.51-Praveenkumar Patil specifically stated that the accused was produced before him on 06.10.2013 by API Adhav. He took brief information about the offence from API Adhav. After they went away, he called the accused-Sunil Kumar Tiwari in his chamber at about 16.05 hrs. He specifically stated that except himself and accused no other person was present in his chamber. Thereafter, he handed over the custody of the accused to PSI Shingade of Dahisar Police Station, who was not at all concerned with the investigation of the said crime. Even, after recording of confession part II on 08.10.2013, the custody of the accused was given to PSI Shingade of Dahisar Police Station to produce the accused before the Chief Metropolitan Magistrate, Mumbai. Therefore, during entire recording of confessional statement Part 1 on 06.10.2013 and part 2 on 08.10.2013 none of the person in connection with the investigation of the offence was present. This is sufficient compliance of Rule 3(2) of the MCOC Rules, 1999.
210. In view of section 18 (3) of the MCOC Act and Rule 3 of the ... 159 ...
MCOC Rules, the Police officer recording the confession shall give mandatory warning in the form to explain to the person making the confession that he is not bound to make confession and that if he does so, such confession may be used as evidence against him. On perusal of the confessional statement part-1, on page 5, there is specific mention that rqEgs dcqyh tckc nsus dh dksbZ tcjnLrh ugh gS vkSj rqEgkjk dcqyh tckc rqEgkjs vkSj rqEgkjs lkFkh;ksads f[kykQ U;k;ky;esa lcqrds RkkSjij bLrseky fd;k tk ldrk gS A ;g ckr rqEgs ekyqe gS D;kA In the confessional statement part-2 also similar question is repeated on page no.3, however, there is no mention about the word that you are not bound.
211. The learned Advocate Mr.Pasbola streneously argued that the provisions of the MCOC Act needs to be strictly construed. The learned Advocate Mr.Pasbola relied on the judgment of Hon'ble Supreme court in the matter of State of Maharashtra vs Siraj Ahmed Nisar Ahmed & Ors reported in (2007) 5 SCC 161, wherein, it is held that, “Para 50 – Under the TADA Act, considerable amount of confidence has been reposed from the Senior Police Officials for recording the confessional statement. A confessional statement to Police is not admissible under the general law connected with administration of criminal justice, which is made admissible under the TADA Act and, therefore, strict compliance with the procedure prescribed under Section 15 of the TADA Act r/w. Rule 15 of the TADA Rules is expected to be followed. Any confession made in defiance of the safeguard provided therein would not be relied upon by a Court.”
212. Relying on the afore cited judgment it is argued by the learned Advocate Mr.Pasbola that strict compliance of Section 18 (3) of the MCOC Act and Rule 3(2) of the MCOC Rules is required to be made, however, PW.51-Praveenkumar Patil nowhere explained to the accused ... 160 ... that he is not bound to make such confession either in confessional statement part-1 nor in confessional statement part-2. Before dealing with this aspect, it is necessary to make reference to the judgment of the Hon'ble Supreme court in the matter of S.N. Dube Vs. N.B. Bhoir & Ors. reported in 2000 Supreme Court Cases (Cri) 343, wherein, it is held that “Para-30-If in order to be assured that the person concerned makes the confession willingly and voluntarily, the recording officer gives him some time to think over and for that reason records the confessional statement in two parts, then they cannot be regarded as two independent and separate statements. The second part being in continuation of the first part, both the parts have to be treated as one confessional statement.”
213. In view of the above ratio laid down by the Hon'ble Supreme Court though PW.51-Praveenkumar Patil recorded confession in two parts, the same to be treated as one confessional statement. As already stated in confessional statement (Exh.641), the accused was explained that he is not bound to make such confession and that if he does so such confession may be used as evidence against him. The only thing seems to be adversed is use of the word ßtcjnLrhÞ, which is not most synonymous meaning of the word 'bound' in Hindi. Even while recording the confessional statement part-2, the sentence 'you are not bound to make' is absent. However, PW.51-Praveenkumar Patil in his cross-examination stated that he put the question to the accused that he is not bound to make confessional statement and it is reflected in the first question of page no.5 of Exh.641 and page no.3 of Exh.644. It means and suggest that the accused has been given mandatory warning, by explaining him that he is not bound to make the statement. As such, this ground raised by the learned Advocate for the accused do not holds ... 161 ... any substance.
214. The learned Advocate Mr.Pasbola submitted that nowhere in confessional statement part 1 nor in part 2 there is mention about when the accused first volunteers to confess. It is argued that even PW.51- Praveenkumar Chudaman Patil has not taken any pains to know when the accused first volunteers to confess. In fact, PW.51-Praveenkumar Chudaman Patil stated that from the letter of Joint CP he came to know that the accused volunteers to confess. Certainly, the contents of Exh.636 made it clear that the accused volunteers to give his confessional statement before the Police. As such, not asking any question about the same to the accused will not discard the fact that the accused was not willing to give statement. On perusal of both the confessional statement Part 1 (Exh.641) and the confessional statement Part 2 (Exh.644), it reveals that PW51 Praveenkumar Patil on both the occasion ascertained from the accused whether he really intending to make confession and whether he is still willing to make confession. The contents of the confessional statements Part 1 and Part 2 does and did indicate that the accused has made the confession voluntarily and the same was free from any threat, coercion and allurement. After recording of the confessional statement, PW.51-Praveenkumar Patil also certify and make a memorandum at the end of the confession in view of the requirement of Section 18 (4) of the MCOC Act and Rule 3(6) of the MCOC Rules. In the certificate below Exh.644, the recording officer gave his satisfaction that the confession has been made voluntarily. This is sufficient compliance of the provisions of the MCOC Act and Rules. ... 162 ...
215. It is argued by the learned Advocate Mr.Pasbola that as per Section 18(1) of the MCOC Act, the confessional statement can be recorded on mechanical devices like cassettes tapes or sound tracks from which sounds or images can be reproduced. It is argued that the recording of the confession on these mechanical devices would give more authenticity. It is argued that such mechanical devices can be easily available, but, in place of that the confessional statement recorded by PW.51-Praveenkumar in writing, which is doubtful and inadmissible. In fact, as per Section 18(1) of the MCOC Act, the confessional statement is to be recorded either in writing or on any 'mechanical devices' enumerated therein. Therefore, merely because the confessional statement was recorded in writing will not make its authenticity doubtful. In fact, as per the provision the confessional statement is to be recorded by the officer not below the rank of Superintendent of Police. Therefore, much confidence is reposed on the police officer who is of the rank of Superintendent of Police. Moreover, a due care was taken that he should not be concerned with the investigation of the offence. Not only that, after recording of the confession by such officer, procedure was also laid down to refer the accused to the Chief Judicial Magistrate for affirmation and to scrupulously record the statement of the accused to ascertain his signature and any complaint about torture. This exercise was also done in this case by producing the accused before the Chief Judicial Magistrate, Esplanade Court, Mumbai, wherein, the statement of the accused came to be recorded on 08.10.2013 itself and the accused stated that the statement Part 1 and part 2 were recorded by Police as per his narration and he gave the statement voluntarily. He also stated that the Police officer has not shown any inducement while recording his statement. There has been no force or coercion. Thus, the statement ... 163 ... of the accused recorded by Chief Judicial Magistrate gives more assurance/confirmation of the fact that the confessional statement recorded by PW.51-Praveenkumar Chudamal Patil is free from any inducement, force and coercion and the same was made by accused voluntarily.
216. It is settled that the confession of the co-accused is a substantive piece of evidence and can be used against the other accused also, if otherwise held to be admissible, voluntary and believable. In the light above discussion, certainly, the confessional statement of the accused- Sunil Kumar Tiwari is admissible as per Section 18 of the MCOC Act. Moreover, the same is voluntary and believable. The accused specifically stated that as he was jobless and search of work, he came in contact with Amitbhai i.e. PW.1-Approver, who told him that if he joined his company, he would have a luxurious life. On 27.08.2013, he received phone call from Amit and demanded a vehicle to go to Sakinaka on 28.08.2013. Accordingly, he had a vehicle Tavera MH-04-AE-4792 from Ravi Davande and informed to Amit. On this aspect, the learned Advocate Mr.Deshpande argued that it is nowhere the evidence of PW.1- Approver that he made a call to the accused-Sunil Kumar Tiwari to arrange for vehicle. On the contrary, PW.1-Approver made reference of one Sukesh Shinde which was not at found place in the confessional statement. Therefore, it is argued that the confessional statement is manipulated and no such confession was made by accused-Sunil Kumar Tiwari. In fact, PW.1-Approver during his evidence specifically stated about the registration number of the Tavera vehicle and also named the accused-Sunil Kumar Tiwari as the driver of the said vehicle. There may be some discrepancy about asking one Sukesh Shinde to arrange for the vehicle, but, fact remains that at the time of the incident, the vehicle ... 164 ... was driven by accused-Sunil Kumar Tiwari, which he also assented. Further, the confessional statement of the accused-Sunil Kumar Tiwari shows that he took Prakash Nikam, Rajendrasingh and Rohit to Inorbit Mall Goregaon West and from there, Amit Sinha directed them to come to Infinity Mall. It is specifically mentioned that after loading their pistol Prakash Nikam told them that “Rajanbhai ka kaam hai koi galati mat karo nahi to lavade lag jayenge.” Further, he specifically stated that he saw that Prakash and others were firing by pistol. The person on whom they made firing rushed inside the mall and they come towards the vehicle by running with firearms in their hands. Then he took them towards S.V. Road.
217. The confessional statement of the accused-Sunil Kumar Tiwari about the involvement of Tavera vehicle in the offence receives corroboration from the CCTV footage of the Infinity Mall in the hard- disc Article-41, more particularly, in the file '20130828\ CH_01_20130828_ 1400.exp', wherein, the Tavera vehicle is seen as stationary and in front of the tanker at 21:29:53 hrs., and at the timing 21:30:46 hrs., the Tavera vehicle is seen to be moving forward. Moreover, in the CCTV footage, in the hard-disc (Article 41), particularly, in the file of 'terrace_gate_CH11_1330', the accused- Prakash Nikam, Rajendra Singh Yadav @ Tiwari were seen. This has also a sufficient corroboration to the confessional statement (Exh.644) of accused.
RETRACTED CONFESSION 218. It is argued by learned Advocate Mr.Sameer Pradhan for accused no.5 that immediately the accused-Sunil Kumar Tiwari retracted the confession by forwarding the application through Jail on 14.10.2013. It ... 165 ... is significant to note here that after recording the confession of the accused by PW.51-Praveenkumar Patil he was referred to the CMM, Esplanade Court, Mumbai, wherein, the statement of the accused came to be recorded. Had he been really wanted to retract confession, he was having the best opportunity to retract before the CMM Court. However, before the learned CMM, he specifically stated that he voluntarily made statement and the same was free from inducement, force or coercion. There is no reason to disbelieve the same.
219. It is necessary to point out here that, in case of retracted confession, it is prudent to look for corroboration in material particulars. Moreover, the rule of prudence mainly requiring corroboration does not mean that each and every circumstance mentioned in the confession with regard to the participation of the accused in the crime must be separately and independently corroborated. It is sufficient if there is corroboration of the important incidents. The CCTV footage is the best evidence which is brought on record by the prosecution. As already discussed in the CCTV footage, the vehicle Tavera is spotted, so also, accused-Prakash Nikam and Rajendra Singh Yadav @ Tiwari. This is sufficient corroboration of the important incident of firing and presence of Tavera vehicle in front of Infinity Mall. Therefore, though it can be said that the accused has retracted the confession, still, the same is worthy of credibility as having sufficient corroboration.
TAINTED EVIDENCE 220. The learned Advocate Mr.Pasbola vehemently argued that the confessional statement of accused-Sunil Kumar Tiwari and even, the Approver-PW.1 are tainted evidence and one tainted evidence cannot be ... 166 ... used for corroboration to the other. On this context, the learned Adv. Mr. Sudeep Pasbola relied on the judgment of Hon'ble Apex Court in the matter of Chonampara Chellappan Vs. State of Kerala reported in (1979) 4 Supreme Court Cases 312, wherein, it is held that, “The law is well settled that the Court looks with some amount of suspicion on the evidence of an accomplice witness which is a tainted evidence and even Section 133 of the Evidence Act clearly provides that the evidence of an accomplice witness should not be accepted unless corroborated. At the same time, it must be remembered that corroboration must be in respect to material particulars and not with respect of each and every item however minor or insignificant it may be. Actually the requirement of corroboration is a rule of prudence which the courts have followed for satisfying the test of the reliability of an Approver and has now been crystallized into a rule of law. It is equally well settled that one tainted evidence cannot corroborate another tainted evidence because if this is allowed to be done then the very necessity of corroboration is frustrated.”
221. Certainly, in view of the above judgment, one tainted evidence cannot corroborate the another tainted evidence. However, there is sufficient material brought by prosecution on record as discussed earlier to corroborate the evidence of PW.1-Approver and that of the confessional statement of accused-Sunil Kumar Tiwari. The confessional statement of the accused-Sunil Kumar Tiwari further strengthened the case of the prosecution about the involvement of vehicle Tavera in the offence and accused-Prakash Nikam, Rajendra Singh Yadav @ Tiwari and Rohit Vishwakarma.
222. The learned Advocate for the accused strenuously argued that the investigation is defective. It is pointed out that on one hand, it is the case of the prosecution that Chetan Desai @ Savla gave information ... 167 ... about the injured to accused no.1 Kaushik Rajgour, he has been examined as witness. Moreover, the evidence of PW.1 Approver shows that the firing practice was made at the farmhouse of Ashok Gharat but, no action is taken against him. Same is the case with one Dinesh Thakur, Sunil Bhanushali, Rakesh Bijam and Nadeem Qureshi. Therefore, it is argued that leaving the main culprit behind, the accused are made scapegoat in this offence. Certainly, the evidence of PW.1 Approver shows that PW.11-Chetan Desai @ Savla gave information about the injured to accused Kaushik Rajgour, PW.19-Sunil Bhanushali allows the assailants to stay in his house, one Dinesh Thakur accompanied PW.1 Approver to Indore for purchasing weapon and then, the amount of Rs.9,000/- was deposited in his account, so also, there is involvement of Rakesh Bijam and Nadeem Qureshi, however, no action was taken against them and rather some of them are made as witnesses, still they do not supported to the prosecution. This is apparently lapses on the part of the investigation agency. It may be so, but, it is settled that the defective investigation unless affect the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the Court. Therefore, though to some extent the investigation is defective, but that could not affect the very root of the prosecution case.
223. The learned Advocate Mr. Pasbola argued that the confessional statement of accused-Sunil Kumar Tiwari is exculpatory and not inculpatory and therefore, could not be termed as confessional statement. In fact, from the confessional statement it can be very well gathered that the accused-Sunil Kumar Tiwari was knowing that PW.1- Approver was having terror in his area and despite of the knowledge of the same, he agreed to drive the Tavera vehicle for carrying the ... 168 ... shooters. Not only that, in place of going to Sakinaka he accept to chose to act upon the directions of the accused-Prakash Nikam and others to go to Inorbit Mall and then to Infinity Mall. He was knowing that the accused were having pistol with them and even they loaded the pistol in his presence. He was knowing that the accused-Prakash Nikam and others made firing, still he allowed to boarded them into Tavera vehicle and escaped them upto a particular spot. This is nothing but to show that he was one of the participant in the crime. As such, it cannot be said that his confessional statement is exculpatory. Even, this fact is denied by PW.51-Praveenkumar Patil. Resultantly, the confessional statement of accused-Sunil Kumar Tiwari recorded by PW.51-DCP Praveenkumar Patil is within the four corners and in compliance of Section-18 of the MCOC Act and the rules. The same is reliable and trustworthy.
224. The learned Advocate for the accused argued that PW.33 Ajay Gosaliya himself raised suspicion that one Bablu Singh might have done the act of firing on him. It is pointed out that the PW.33 admitted in his cross-examination that he had lodged a complaint with Crime Branch Unit 11 prior to 6 to 8 months of this incident against Bablu Singh with the police, once after he had left the job. The complaint was regarding the threat given by Bablu Singh. He further admit that he removed Bablu Singh from service as he was threatening and extorting money from others and he was bullying others. In this regard, the portion marked “D' and 'E' also brought in his statement. He further admit that because of this he felt that there was danger to his life. Relying on these admissions, it is argued that the PW.33 Ajay Gosaliya himself is not sure rather he suspects more about Bablu Singh. It may be so, but, after recording the statement of PW.33 and before that, investigating officer ... 169 ... investigated the crime, in which, the role of the accused transpired. Now the evidence is adduced and therefore, the mere suspicion raised on the said Bablu Singh will not discredit the version of the witnesses in this case.
225. It is argued by the learned Advocate for the accused that PW.33 Ajay Gosaliya is having criminal background. He admit that he was arrested by the Crime Branch as his name was involved in the case of Cricket Bookie. He also admit that he was the accused in a pending case in the Sessions Court at Mumbai, wherein, the provisions of MCOC Act were invoked. Even, one Raju Mishra also lodged a complaint of extortion against him. Therefore, it is argued that testimony of such a witness having criminal background cannot be believed. Previously, there may be some criminal cases registered against the accused, but, that is not sufficient to discard his testimony and the fact of happening of the incident of an attempt to commit his murder. Consequently, these defences raised by the accused are not sufficient to create dent in the story of the prosecution.
THE ARMS ACT 226. This Court has already come to the conclusion that in order to satisfy the object of criminal conspiracy, the accused has arranged for the weapon pistol and there is use of the same for firing on the injured PW.33-Ajay Gosaliya. Thus, the accused has contravened the provisions of Section 3 for acquisition and possession of firearm and ammunition without license. So also, PW.1-Approver stated that the pistols and cartridges were purchased by him from accused-Rajendra Yadav @ Tiwari. No such license for manufacture, sale etc. of arms and ammunition is brought on record. The accused-Rajendra Yadav @ ... 170 ...
Tiwari is absconding. In view of Section 39 of the Arms Act, previous sanction of the District Magistrate is necessary in certain cases and for want of the same, no prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the District Magistrate. No such previous sanction is brought on record by the Prosecution. Even though, the prosecution has proved that there is use of the weapon pistol in the offence, but, without sanction, the accused cannot be convicted for the offence punishable under Sections 3,25,27 of the Arms Act. This is legal flaw. Even otherwise, it reveals from the record that the accused-Prakash Nikam is already prosecuted along with one Ajay Thorat and others for the offences under Arms Act before the 37th Court, Esplanade, Mumbai. However, no further details are brought on record either by Prosecution or by defence. Hence, I answer point nos.3 and 4 in the negative.
227. In sequel of the above discussion, the prosecution has proved beyond reasonable doubt that the accused conspired together and committed the offence of attempt to commit murder of PW.33 Ajay Gosaliya. The prosecution also indubitably proved that the accused committed the act being the member of organized crime syndicate headed by accused-Rajendra Sadashiv Nikalje @ Chhota Rajan. Hence, I answer point nos.1,2 and 5 to 7 in the affirmative and point nos.3 and 4 in the negative.
228. In view of the above findings, the accused are held guilty for the offence punishable under Sections 120(B) r/w Sections 307 of the Indian Penal Code and Sections 3(1) (ii), 3 (2), 3(4) of the MCOC Act, 1999. However, the prosecution has failed to prove the offences punishable under Sections 3,5 r/w. 25 and 27 of the Indian Arms Act. ... 171 ...
As this court has come to the conclusion that the accused are guilty of the said offences, it is now necessary to hear the prosecution and the accused on the point of sentence. Hence, I took a pause to hear the prosecution and the accused.
(A.T. WANKHEDE) SPECIAL JUDGE Date : 16.03.2021 Exclusive Special Court constituted for the cases under MCOCA/TADA/POTA AND OTHER SESSIONS CASES Place : Mumbai against the accused-Rajendra Sadashiv Nikalje @ Chhota Rajan
HEARING ON THE POINT OF SENTENCE
229. Heard the accused no.1-Kaushik Baldev Rajgour, accused no.2- Arvind @ Arvya Pandurang Shinde and accused no.5-Sunil Kumar @ Piyush Gaurishankar Tiwari. They prayed for leniency. Further, they submitted that they are married and their families are dependent on them. They were already behind the bar for about two and half years.
230. Heard the accused no.6-Vilas Jitendra Bharti, he stated that he has no concerned with the offence and he is in custody since last seven years.
231. Heard the accused no.8-Prakash @ Pakya @ Bhau Ashok Nikam, he stated that his family is dependent on him. He is poor. Since last seven years, he is behind the bar.
232. Heard the accused no.9-Rohit Tangappan Joseph @ Satish Kalya, he stated that leniency be shown. He is already in custody since last seven years. ... 172 ...
233. Heard the accused no.10-Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir. He stated that he has no cocerned with the offence and prayed for leniency.
234. Also heard the learned Advocates for the accused. The learned Advocate for the accused combinedly requested that the period already undergone by them in jail may be awarded as punishment and leniency be shown.
235. Learned SPP Mr. P.D. Gharat for CBI/prosecution submitted that maximum punishment may kindly be awarded.
236. I gave thoughtful consideration to the submissions made by the accused, their advocates and the learned SPP. This Court is aware about the nature and gravity of the offence proved against the accused, so also, the principle of proportionality of the sentence. The offence is of serious nature. There is involvement of Organized Crime Syndciate headed by accused-Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir. The act was committed in the broad day light and that too in front of Infinity Mall which is a crowded and public place. The act was committed with every intention and knowledge to commit murder of the injured PW.33-Ajay Gosaliya and also to create terror in the public. The Organized Crime Syndicate are causing menance to the society at large. The object and the foundation of MCOC Act is to control the organized crime. The purpose of imposition of sentence is not only to cause deterrence to the accused, but also to the potential accused who are likely to indulge in such activities. A message must have been given to the society and such offenders about the fate of committing such crime. The grounds raised by the accused are of ... 173 ... general and common nature. Keeping in mind, the objects of the MCOC Act and the punishment provided, no leniency can be shown to the accused and following sentence would meet the ends of justice.
237. Before parting with the judgment, it is necessary to point out here that one of the accused no.3-Rajendra Singh @ Bhaisaheb @ Tiwari Haricharan Singh Yadav is wanted and therefore, the muddemal property cannot be disposed off. However, the vehicle Hero Honda motorcycle No.MH-04-EJ-4466 which is in custody of DCB-CID, Unit-11 is not claimed by anybody. There is no propriety to keep the vehicle in idle condition lying at the concerned Police Station. Therefore, the vehicle Hero Honda motorcycle having registration no. MH-04-EJ-4466 be put to auction as per procedure and the sale proceeds of it be deposited to the Government of Maharashtra. Prior to disposal of the said vehicle colour photograph of the same be taken and true copy of registration documents certified by the concerned Police Station be kept or placed on record of this Court.
238. The vehicle Tavera Car of white colour bearing registration No. MH-04-ES-4792 is already given on Supratnama by way of order dated 10.12.2013 in Misc Application no.132 of 2013 to PW.6-Smt. Kanhopatra @ Sheela Tulshiram Gaikwad. The custody of the same be retained to her. She has to follow the conditions imposed while granting the Supratnama till the appeal period is over and thereafter, if any, appeal prefer by either of the parties.
239. The vehicle Innova car bearing registration No.MH-04-EQ-5392 is already given on Supratnama by way of order below Exh.46 dated 11.07.2014 to Shakir Hanif Memon. The custody of the same be ... 174 ... retained to him. He has to follow the conditions imposed while granting the Supratnama till the appeal period is over and thereafter, if any, appeal prefer by either of the parties.
240. This Court has already granted tender of pardon to PW.1- Approver by way of order dated 15.06.2015. Even, he has made full and true disclosure of the facts relating to the offence within his personal knowledge. Therefore, PW.1-Approver be forthwith released from jail, if not required in any other offence. Needless to say that the State is bound to provide adequate security to PW.1-Approver, if he desires.
241. In the aforementioned paras, this Court has already observed that the officer of the concerned Police Station, Bhander, District Datiya and Jail Authority has committed defiance of the order of this Court. Therefore, the Superintendent of Police of the Police Station, Bhander and the Superior Authority of Superintendent of Datiya Jail to commit necessary enquiry and submit report to this Court within six months. Hence, I proceed to pass the following order :- ORDER 1) The accused no.1-Kaushik Baldev Rajgour, accused no.2-Arvind @ Arvya Pandurang Shinde, accused no.5-Sunil Kumar @ Piyush Gaurishankar Tiwari, accused no.6-Vilas Jitendra Bharti, accused no.8- Prakash @ Pakya @ Bhau Ashok Nikam, accused no.9-Rohit Tangappan Joseph @ Satish Kalya and accused no.10-Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are convicted as per Section 235(2) of Cr.P.C.,1973, for the offence punishable under Sections 120(B) r/w Sections 307 of the Indian Penal Code and Sections 3(1) (ii), 3 (2), 3(4) of the M. C. O. C. Act, 1999. ... 175 ...
2) The accused no.1-Kaushik Baldev Rajgour, accused no.2-Arvind @ Arvya Pandurang Shinde, accused no.5-Sunil Kumar @ Piyush Gaurishankar Tiwari, accused no.6-Vilas Jitendra Bharti, accused no.8- Prakash @ Pakya @ Bhau Ashok Nikam, accused no.9-Rohit Tangappan Joseph @ Satish Kalya and accused no.10-Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are sentenced to suffer rigorous imprisonment for a period of 10 (ten) years each with fine of Rs.2,000/- (Rupees Two Thousand Only) each, in default, to suffer rigorous imprisonment for 2 months each for the offences punishable under Sections 307, 120(b) of IPC.
3) The accused no.1-Kaushik Baldev Rajgour, accused no.2-Arvind @ Arvya Pandurang Shinde, accused no.5-Sunil Kumar @ Piyush Gaurishankar Tiwari, accused no.6-Vilas Jitendra Bharti, accused no.8- Prakash @ Pakya @ Bhau Ashok Nikam, accused no.9-Rohit Tangappan Joseph @ Satish Kalya and accused no.10-Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are sentenced to suffer rigorous imprisonment for a period of 10 (ten) years each with fine of Rs.5,00,000/- (Rupees Five Lakhs Only) each, in default, to suffer rigorous imprisonment for 6 months each for the offences punishable under Sections 3(1) (ii) of the M. C. O. C. Act, 1999.
4) The accused no.1-Kaushik Baldev Rajgour, accused no.2-Arvind @ Arvya Pandurang Shinde, accused no.5-Sunil Kumar @ Piyush Gaurishankar Tiwari, accused no.6-Vilas Jitendra Bharti, accused no.8- Prakash @ Pakya @ Bhau Ashok Nikam, accused no.9-Rohit Tangappan Joseph @ Satish Kalya and accused no.10-Rajendra Sadashiv Nikalje @ Chhota Rajan @ Nana @ Seth @ Sir are acquitted as per Section 235(1) ... 176 ... of Cr.P.C.,1973 for the offences punishable under Sections 3,5 r/w. 25 and 27 of the Indian Arms Act.
5) As the sentence is imposed on the accused for the offences punishable under Section 3(1)(ii) of MCOC Act, no separate sentence awarded to the accused for the offences punishable under Sections 3(2), 3(4) of the MCOC Act, 1999.
6) The accused no.1-Kaushik Baldev Rajgour, accused no.2-Arvind @ Arvya Pandurang Shinde, accused no.5-Sunil Kumar @ Piyush Gaurishankar Tiwari, accused no.6-Vilas Jitendra Bharti, accused no.8- Prakash @ Pakya @ Bhau Ashok Nikam, accused no.9-Rohit Tangappan Joseph @ Satish Kalya and accused no.10-Rajendra 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.
7) All the substantive sentences shall run concurrently.
8) The accused no.1-Kaushik Baldev Rajgour, accused no.2-Arvind @ Arvya Pandurang Shinde and accused no.5-Sunil Kumar @ Piyush Gaurishankar Tiwari to surrender their bail bonds. They be taken in custody.
9) The muddemal property, so also, R and P be preserved as the accused no.3-Rajendra Singh @ Bhaisaheb @ Tiwari Haricharan Singh Yadav is wanted/absconding. Special precautions be taken to preserve the electronic record i.e. hard-disc (Article-41) and CD (Article-58). ... 177 ...
10) The muddemal property i.e. Tavera Car bearing registration No.MH-04-ES-4792 and Innova car bearing registration No.MH-04-EQ- 5392 be retained with PW.6-Smt. Kanhopatra @ Sheela Tulshiram Gaikwad and Shakir Hanif Memon respectively. They have to follow the conditions imposed while granting the Supratnama till the appeal period is over and thereafter, if any, appeal prefer by either of the parties.
11) The muddemal property i.e. the vehicle Hero Honda motorcycle having registration no.MH-04-EJ-4466 (in custody of DCB-CID, Unit-11) be put to auction as per procedure and the sale proceeds of it be deposited to the Government of Maharashtra.
12) The Approver PW.1-Amit Kishor Sinha be released forthwith from Thane Central Prison, if not required in any other offence. The State to provide proper security to PW.1-Approver, if required.
13) Apparently, there are lapses on the part of the Police Officer, Police Station, Bhander, District Datiya, Madhya Pradesh who took the accused-Rajendra Haricharan Yadav to be produced before the learned Special Judge, M.P.D.A.V.P.K., Datiya, Madhya Pradesh and also, the Superintendent of Datiya Jail, in releasing him without sending back to the Thane Central Prison, despite of the order of this Court. Therefore, the Superintendent of Police of the Police Station, Bhander and the Superior Authority of Superintendent of Datiya Jail to conduct an enquiry in this regard and submit report to this Court within 3 (three) months. ... 178 ...
14) The copy of the judgment be furnished to all the accused persons free of cost.
(A.T. WANKHEDE) SPECIAL JUDGE Date : 16.03.2021 Exclusive Special Court constituted for the cases under MCOCA/TADA/POTA AND OTHER SESSIONS CASES Place : Mumbai against the accused-Rajendra Sadashiv Nikalje @ Chhota Rajan
Dictated and typed on : From 25.02.2021 to till today. Signed on : 19.03.2021.
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER"
DATE : 22.03.2021, AT 11.15 A.M. MAHESH KESHAV SAKHARKAR STENOGRAPHER GRADE-I UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court no.) : SHRI A.T.WANKHEDE. C.R.NO.57. Date of pronouncement of judgment/order : 16.03.2021. Judgment/order signed by the P.O. on : 19.03.2021. Judgment/order uploaded on : 22.03.2021, AT 11.15 A.M.