{"id":220284,"date":"2009-08-06T00:00:00","date_gmt":"2009-08-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohd-farooq-a-g-chipa-rangari-vs-state-of-maharashtra-on-6-august-2009"},"modified":"2017-01-01T09:59:58","modified_gmt":"2017-01-01T04:29:58","slug":"mohd-farooq-a-g-chipa-rangari-vs-state-of-maharashtra-on-6-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohd-farooq-a-g-chipa-rangari-vs-state-of-maharashtra-on-6-august-2009","title":{"rendered":"Mohd.Farooq A.G.Chipa Rangari & … vs State Of Maharashtra on 6 August, 2009"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohd.Farooq A.G.Chipa Rangari & … vs State Of Maharashtra on 6 August, 2009<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Mukundakam Sharma<\/div>\n
                  MOHD. FAROOQ ABDUL GAFUR AND ANOTHER\n                            v.\n               STATE OF MAHARASHTRA\n           (Criminal Appeal Nos. 85-86 of 2006)\n                         AUGUST 6, 2009\n          [S.B. Sinha and Dr. Mukundakam Sharma, JJ.]\n\n                        2009 (12) SCR 1093\n   The Judgment of the Court was delivered by\n\n   DR. MUKUNDAKAM SHARMA J. 1. These appeals are filed\nagainst a common judgment and order dated 17th December,\n2003 passed by a Division Bench of the High Court of Judicature\nat Bombay in Confirmation Case No. 01 of 2001 and Criminal\nAppeal Nos. 661 of 2000; 679 of 2000; 753 of 2000 and 758 of\n2000 and are being disposed of by this common judgment.\n\n   2. The prosecution case in brief is as follows: -\n\n   One Milind Vaidya is the ex-Mayor of Mumbai. He belongs to\nthe Shiv Sena, a political party, active in Maharashtra. On 4th\nMarch, 1999 at about 9.45 p.m. he alongwith 7-8 workers were\nsitting in an open shed by the side of Mori Road. He was guarded\nby his two body guards, namely, Constable Dinanath Pawar (PW-\n2) and Constable Sandeep Eaghmare (PW-3). They were armed\nwith a 9 mm pistol and 9 mm carbine with 90 rounds respectively.\nThe said shed house is an office of Shiv Sena `Shakha'. At about 5\nminutes past 10.00 p.m. a white Maruti car with a number plate\nMH-03-H-1749 came from the side of Mahim Railway Station.\nWhen it reached near the said open shed three persons started\nfiring at Milind Vaidya and others who were sitting in the shed. One\nof the assailants was sitting alongside the driver on the front seat\nand the other two were sitting at the back seat. . In the aforesaid\nincident three persons died while seven to eight persons, including\nShri Milind Vaidya, injured.\n\n    3. The said Maruti car was being driven allegedly by Abdul\nHasan (Accused No.8) and Azzizuddin (Accused No.7) was sitting\nby his side being armed with a AK-56 rifle. Mohd. Zuber (Accused\nNo.5) and Fazal Mohd. (Accused No.6) were sitting on the rear\nside of the said car and were armed with 9 mm pistol. All the\naforementioned three persons were said to have fired at Milind\nVaidya and his associates indiscriminately, who were sitting in the\nshed.\n\n    4. Body guard Dinanath Pawar, who examined himself as PW-\n2, is said to have fired three rounds from his pistol on the Maruti\nCar. Other body guard namely Sandeep Waghmare (PW-3), is\nsaid to have chased the car upto some distance but did not fire\nany shot, although armed with a carbine. The incident of firing\nlasted for a few seconds whereafter the Maruti car sped away.\nMilind Vaidya sustained bullet injuries. Besides six others, namely\n- Nishchal Krishna Chaudhari; Vinay Narayan Akare; Babu\nKashinath Mangela; Niteen Narayan Mehar; Murugan V Tewar;\nand Vijay Kashinath Akare also sustained bullet injuries. Three of\nhis associates, namely - Milind Gunaji Chaudhari, Vilas Gopinath\nAkare and Deepak Sitaram Akare succumbed to their injuries.\n\n    5. All the aforesaid victims were immediately rushed to Hinduja\nHospital, Mumbai where they were admitted for examination and\ntreatment. Post mortem examinations of the three deceased were\ncarried out on the next day. They were found to have sustained\nbullet injuries on different parts of their body and lead pieces were\nrecovered therefrom.\n   6. It is worthwhile to mention here that a similar attempt on the\nlife of Milind Vaidya had also been made by unknown persons\nthree months prior to the incident in question. At that time he had\nescaped with some injuries. He earlier used to have a body guard\nfor his personal safety. However, after the said incident he was\nprovided with three body guards during day time and two during\nnight time. One of the guards was provided with a carbine weapon\nwhile the other two were provided with 9 mm pistols. Milind Vaidya\nused to sit alongwith his workers at night time in the shed adjoining\nthe foot-path of Mori Road, Mahim for the purpose of hearing the\ngrievances of the people. At that time he used to be escorted by\nhis body-guards.\n\n   7. First Information Report was lodged on 4th March, 1999 at\nMahim Police Station. The investigation of the case was taken up\nby PI Yashwant Puntambekar (PW-36). However, having regard to\nthe gravity of the offence the Commissioner of Police, Mumbai,\ndirected the Senior Police Inspector, CID - Unit IV, to take over\nfurther investigation of the case, pursuant whereof Senior P.I.\nBagul took over the investigation. Thereafter PI Bharat Tambe\n(PW-59) took over the investigation on 06.03.1999. A Maruti car\nwas located on 8th March, 1999 in an abandoned condition having\nbeen found parked in Jain Derasar Lane at Wadala. On inspection\nof the car one empty shell of AK-56 rifle; 2 empties of 9 mm caliber\npistols and two empties of mouser pistols etc. were found. It was\nsuspected that the said car was used in the commission of the\naforesaid crime.\n\n   8. After appellant No.1 (Mohd. Farooq) was arrested on 13th\nMarch, 1999, the Joint Commissioner of Police (Crime) granted\npermission to apply the provisions of Maharashtra Control of\nOrganised Crime Ordinance, 1999 to the present case pursuant\nwhereto the investigation was taken over by an Assistant\nCommissioner of Police namely, Pradeep Sawant (PW-61) from PI\nBharat Tambe on 26th March, 1999. He was said to have been\nsupervising the investigation of the case in his capacity as ACP\n(Detection-I) and for effective and extensive investigation of the\npresent case, he formed a team of 13 police officers.\n\n   9. In all there were eight accused persons namely, Mohammed\nFarooq Abdul Gafur Chipa Rangari (Accused No. 1), Aslam\nMohammed Kutti (Accused No. 2), Abdul Kadar Abdul Gafoor\nRizvi (Accused No. 3), Mansoor Hasan Haji Iqbal Pankar (Accused\nNo. 4), Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu\n(Accused No. 5), Fazal Mohd. Shaikh alias Manni Argamutu\nShetiyar (Accused No. 6), Azzizuddin Zahiruddin Shaikh alias\nAbdul Sattar (Accused No. 7) and Abdul Hasan Bande Hasan\nMistri (Accused No. 8) involved in the case.\n\n   10. Accused No.1 (Appellant No.1 herein) was arrested on\n13th March, 1999 whereas Accused No.4 (Appellant No.2 herein)\nwas arrested on 21st June, 1999 along with Accused Nos. 2 and 3.\nAccused Nos. 5 and 6 were arrested on 18th June, 1999 by the\nSpecial Cell of Delhi Police. Accused No. 7 was arrested on 15th\nJune, 1999 with AK-56 rifle by Hazariganj Police Station, Lucknow,\nU.P. and Accused No. 8 was arrested on 21st July, 1999.\n\n   11. On 4th April, 1999 the Appellant No.1 took police and\npanchas to certain places and STD booths on Mohd. Ali Road,\nMasjid Road, near J. J. Marg Police Station at Dongri wherefrom\nhe used to contact Faheem. Appellant No.1 made a confessional\nstatement on 10th April, 1999 regarding his involvement in the\nincident. It was recorded by DCP Parambir Singh (PW-51).\n\n   12. On 25th June, 1999, Mansur Hasan (Accused No. 4) took\npolice party to the garage of one Chaggan Vithal where he is said\nto have given the Maruti car used in the commission of the crime\nfor repairs. He also showed to the police on 6th July, 1999 an STD\nbooth at Dongri wherefrom he had contacted Faheem and\nobtained mobile phones as well as a duplicate motor driving\nlicence. At the instance of Mohd. Zuber (Accused No. 5) on 18th\nJuly, 1999, discovery of 9 mm China made pistol, which was found\nkept in a cup-board in a hut behind Mahim Bus Depot was made.\nHis confessional statement was recorded on 30.07.1999 by\nRavindra Kadam, DCP (Zone IV) who examined himself as PW-\n39 which was however subsequently retracted.\n\n   13. Confessional statement of appellant No.2 was recorded on\n30th July, 1999 by DCP Kadam who examined himself as PW-39.\nHowever, appellant No.2 retracted his confession when he was\nproduced before the Chief Judicial Magistrate.\n\n   14. On 9th August, 1999 Accused No. 5 led the police party to\na telephone booth at Mahim wherefrom he had contacted Faheem\nand Chhota Shakeel in Karachi, Pakistan. Discovery of AK 56 rifle\ntogether with 5 cartridges which was found kept in a rexine bag on\nthe loft of a hut behind Mahim Bus Depot was made on 17th July,\n1999 at the instance of Azzizuddin (Accused No.7). A finger print\nexpert, who was called, found one chance finger print on the said\nrifle. Discovery of two plates from room No.15 on the ground floor\nof building No.1 in Kidvai Nagar, Wadala , was made at the\ninstance of Abdul Hasan (Accused No.8).\n   15. Confession of the aforementioned six persons was\nrecorded by three DCPs namely, Mr. Kadam (PW-39), Mr.\nParamvir Singh (PW-51) and Mr. Shindre (PW-60). Test\nIdentification Parade of accused Nos. 4 to 8 was conducted on\n10th August, 1999 by the Special Executive Officer who examined\nhimself as PW-32.\n\n   16. Upon completion of the investigation, a voluminous charge\nsheet was filed before the Designated Court on 8th September,\n1999. The charges were framed against all the aforesaid accused\npersons under various provisions of the Indian Penal Code, 1860\n(for short `the IPC') and the Arms Act. Considering the gravity of\nthe crime and the fact that all the eight accused persons being\nmembers of organized crime syndicate of Chhota Shakeel, the\nprovisions of Maharashtra Control of Organised Crime Act, 1999\n(hereinafter referred to as `MCOCA') were also invoked. All the\naforesaid accused persons were charged for conspiring, abetting\nand facilitating commission of the aforesaid crime as members of\nthe said organized crime syndicate.\n\n   17. In the charge sheet Chhota Shakeel and Mohd. Faheem\nhave been shown as the absconding accused. The prosecution\ncase proceeded on the premise that all the accused had hatched a\nconspiracy to eliminate Milind Vaidya and with that common object\nin mind they aided each other for causing his murder. They were\nsaid to be in constant touch with Mohd. Faheem for the purpose of\ntaking instructions from him on telephone. They had been provided\nwith arms and ammunitions and money by the absconding\naccused persons namely, Chhota Shakeel and Mohd. Faheem.\n   18. Appellants herein are said to be belonging to the gang of\nfugitive criminal namely Chhota Shakeel who allegedly operates\nhis organised crime activities from Karachi, Pakistan. He is also\naided by another ganglord namely, Mohd. Faheem. Both of them\nare said to belong to the gang of underworld don Dawood Ibrahim.\n\n   19. All the eight accused persons allegedly being members of\norganized crime syndicate of Chhota Shakeel were charged under\nSections 3(1) r\/w 2(e) of MCOCA. They were further charged of\nconspiring, abetting and facilitating commission of aforesaid crime\nas members of the said organized crime syndicate under Sections\n3(2) of MCOCA read with Section 120B of IPC. For their\nagreement to do the abovesaid illegal act they were also charged\nunder Section 120-B IPC.\n\n   20. Mohammed Farooq Abdul Gafur Chipa Rangari (Accused\nNo.1) was separately charged under Sections 302, 307 read with\nSection 120B\/34 and 109 IPC on the ground that he, in pursuance\nof the said conspiracy, was in constant contact on mobile with\nFaheem, collected money and also three mobile phones from\nGuddu and delivered the same to Accused Nos. 5 and 6, provided\ndriver i.e. Accused No. 8 with the car facilitating commission of the\ncrime and thus had the common intention to commit the crime. He\nwas also charged under Sections 201, 34 IPC for assisting\naccused Nos. 5, 6 and 7 to cause disappearance of AK-56 rifle\nwith intent to screen the offenders from legal punishment.\n\n   21. Aslam Mohammed Kutti (Accused No. 2) was separately\ncharged under Sections 302, 307, 120B r\/w 34, r\/w 109 of IPC\nbeing in contact with Mohd. Faheem, who was in Karachi, Accused\nNos. 2 and 3 collected weapons from Neeta from Mazgaon and\nhanded it over to Accused Nos. 4 and 7 for using the same in the\naforesaid offence. Further, Accused No. 2 purchased three mobile\nphones and handed over the same to Accused No. 4 thus,\nfacilitated commission of crime as a member of conspiracy in\nfurtherance of common intention. He was further charged under\nSections 25(1A) and 25(1B) of the Arms Act for possessing jointly\nwith Accused No. 3 a rexin bag containing two 9 mm pistols and\nAK-56 rifle in contravention of Section 3 & 7 of the Arms Act.\n\n   22. Abdul Kadar Abdul Gafoor Rizvi (Accused No. 3) was\ncharged under Sections 25 r\/w 3 & 7 of the Arms Act for collecting\njointly with Accused No.2 a rexin bag from Neeta containing two\npistols, one rifle for use in the aforesaid offence and handed over\nthe same to accused Nos. 4 & 7 and thus committed offence of\npossession of unlicensed and prohibited arms in contraventions of\nSections 3 & 7 of the Arms Act. He was also charged under\nSections 302, 307 of IPC r\/w 120B, 34 & 109 of IPC for delivering\nweapons to accused Nos. 4 and 7 which were later used in the\ncommission of the aforesaid offence thus, facilitated commission of\noffence as a member of conspiracy and in furtherance of common\nintention. He was further charged under Sections 302, 307 r\/w 34,\n120B, and 109 of IPC for purchasing three mobile phones along\nwith Accused No. 2 from Hira Panna Market to facilitate the\naforesaid crime.\n\n   23. Mansoor Hasan Haji Iqbal Pankar (Accused No.4) was\ncharged under Sections 411 r\/w 34 and 120-B of IPC for\nconspiring, as per the directions of Faheem, in collecting white\ncoloured Maruti 800 Car from Phila House, Mumbai and the\naforesaid stolen car was used by accused Nos. 4 and 7 and thus\nwas a member of conspiracy and committed offence of dishonestly\nreceiving stolen property. He was further charged under Sections\n302, 307 r\/w 34, 120-B and 109 of IPC for handing over the stolen\ncar to Accused No. 8 which was actually used in the aforesaid\noffence. He was further charged under Section 201 r\/w 34 and\n120-B of IPC for taking over charge of two mobile phones from\naccused Nos. 5 and 7 after the aforesaid offence and for\nconcealing the same in his house.\n\n    24. Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu, Fazal\nMohd. Shaikh alias Manni Argamutu Shetiyar, Azzizuddin\nZahiruddin Shaikh alias Abdul Sattar and Abdul Hasan Bande\nHasan Mistri (Accused Nos. 5 to 8) respectively were charged\nunder Sections 25 r\/w 3 & 7 of the Arms Act for traveling in the\nstolen Maruti Car, carrying unlicensed pistols and prohibited\nfirearms i.e. A-56 rifle in furtherance of conspiracy and common\nintention with accused Nos. 5 to 7. They were further charged\nunder Sections 25 (1A), 25(1B) r\/w 3, 7 and 35 of the Arms Act for\nhaving joint possession\/control of the said vehicle i.e. the stolen\nMaruti car which was used in the aforesaid crime and were aware\nof existence of fire arms in the vehicle.\n\n    25. Accused Nos. 5 to 7 were charged under Sections 3 (1) (i)\nof MCOCA read with Sections 302 & 120B of IPC for committing\nthe offence of organized crime on behalf of the syndicate with the\nobject   of   gaining   advantage    of     syndicate   and   promoting\ninsurgency. They were also charged under Sections 3 (1) (ii) of\nMCOCA read with Sections 307 & 120B of IPC for firing with\nweapons, causing injuries and endangering the life of 7 persons.\nThey were further charged under Sections 302, 307 r\/w 34 and\n120-B of IPC for being taken in a stolen Maruti Car by Accused\nNo. 8 at the spot and for firing with their pistols and rifles on the\nvictims. They were charged under Sections 25(1A), 25(1B) and\n27(3) of the Arms Act for possessing fire arms in contravention of\nSection 3 & 7 of the Arms Act. They were also charged under\nSection 201 r\/w 34 and 120-B of IPC for hiding their respective fire\narms knowing that they were used in commission of offence thus,\nattempted disappearance with an intention to screen the offender.\n\n   26. Abdul Hasan Bande Hasan Mistri (Accused No. 8) was\nseparately charged under Sections 302, 307 r\/w 34 and 120-B of\nIPC for taking Accused Nos. 5 to 7 in Maruti car in furtherance of\nconspiracy and common intention thereby facilitating the crime of\nmurder and fatal injuries. He was also charged under Sections\n424, 414 r\/w 34 and 120-B of IPC for dishonestly receiving the\nstolen Maruti Car and changing the number plate and thus\nassisting in concealment of stolen property in furtherance of\nconspiracy and common intention. He was further charged under\nSection 212 of IPC for harbouring Accused Nos. 5 to 7 in stolen\nMaruti Car immediately after the aforesaid offence with the\nintention of screening them.\n\n   27. In support of its case the prosecution examined 64\nwitnesses out of them 5 were eye witnesses including the injured\npersons. Six STD\/ISD booth owners were also examined to prove\nthat some of the accused had made telephone calls from their\nbooths to Karachi, Pakistan. 4 witnesses were examined to\ndepose about subsidiary circumstances. 14 witnesses were panch\nwitnesses. 4 medical officers were examined to prove the post-\nmortem reports as well as the certificates of injuries. 25 Police\nOfficers including two investigating officers were also examined. 5\nother witnesses were examined on different points. A large number\nof documents were produced by the prosecution.\n\n   28. Sabiul Hasan (PW-15) was the owner of the Maruti car\nbearing registration No. MH-03-H-1759 which was stolen. He had\nlodged a complaint to that effect on 30th January, 1999. The\nevidence of PW-20, who is a panch witness, established recovery\nof the car on 25th June, 1999. Accused No. 4 led police to a\ngarage situated opposite to Chhagan Mitha Petrol Pump where the\ncar was given for repair. Manager of petrol pump PW-17 stated\nthat on 5th February, 1999 Accused No. 4 had brought one white\ncar bearing No. BLD 1949 for certain repairs and servicing. He did\nnot take back the car immediately, although he was informed that\nthe repairing and servicing had been completed. He visited the\npetrol pump later on. A card was prepared by him making certain\nnoting regarding the number of the car, the repairs done to it, the\nname of the customer and his telephone number etc. A note was\nalso made in the card stating \"Do not take again for servicing\". He,\nhowever, did not know Accused No. 4 earlier. He saw and\nidentified Accused No.4 for the first time in the court on 31st\nMarch, 2000. However, the identification of Accused No. 4 was\nfound to be doubtful.\n\n   29. The Special Court, Mumbai by its judgment and order\ndated 05.09.2000 acquitted Accused Nos. 2 and 3 and recorded\njudgment and order of conviction and sentence against the other\nsix accused which are as under:-\n\n   \"I (a) The Accused No. 1 Mohammed Farooq Chipa Rangari is\n   found guilty and convicted of an offence punishable under\nSection 3(2) of the Maharashtra Control of Organised Crime\nAct, 1999 (hereinafter referred as \"M.C.O.C. Act, 99\") read with\nsection   120-B   I.P.C.   and   is   sentenced    to   Rigorous\nImprisonment for ten years and to pay fine in the sum of Rs.5\nlakhs. In default of payment of fine he shall undergo R.I. for\nthree years.\n\n    (b) The Accused No.1 is also found guilty and convicted of\nan offence punishable under section 3(4) of M.C.O.C. Act 99\nread with section 120-B I.P.C. and is sentenced to R.I. for ten\nyears and shall also pay fine in the sum of Rs.5 lakhs. In\ndefault of payment he shall under go R.I. for three years.\n\n    (c) The Accused No.1 is further held guilty and convicted\nfor an offence punishable under Section 212 read with section\n52-A read with section 120-B I.P.C. and is sentenced to\nRigorous Imprisonment for five years and shall also pay a fine\nin sum of Rs.5000\/-. In default of payment of fine he shall\nundergo R.I. for six months.\n\nIV. (a) The Accused No. 4 Mansur Hasan Haji Iqbal Pankar is\nfound guilty and convicted of an offence punishable under\nSection 3(2) of M.C.O.C. Act 99 read with Section 120-B I.P.C.\nand is sentenced to R.I. for ten years and to pay fine in the\nsum of Rs.5 lakhs. In the default of payment of fine he shall\nundergo R.I. for three years.\n\n    (b) The Accused No.4 is further held guilty and convicted\nof an offence punishable under Section 3(4) of M.C.O.C. Act\n99 read with Section 120-B I.P.C. and is sentenced to R.I. for\nten years and shall pay fine in sum of Rs.5 lakhs. In default of\npayment of which he shall undergo R.I. for three years.\n        (c) The Accused No.4 is also found guilty and convicted of\nan offence punishable under Section 411 read with Section\n120-B I.P.C. and is sentenced to suffer R.I. for two years and\nshall pay a fine in sum of Rs.5000\/-. In default of payment of\nfine he shall undergo R.I. for six months.\n\nV. (a)                      The Accused No. 5 Mohd. Zuber\nKasam Shaikh is found guilty and convicted for an offence\npunishable under Section 302 I.P.C. read with Section 3(1)(i)\nof M.C.O.C. Act 99 read further with Section 120-B further read\nwith Section 34 I.P.C. for causing murder of:-\n\n (i)     Shri Milind Gunaji Chaudhary, aged 34 years.\n\n (ii)    Shri Vilas Gopinath Akre, aged 28 years\n\n (iii) Shri Deepak Sitaram Akre, aged 30 years\n\n         And is hereby sentenced to death. He shall be hanged\n         by neck till he dies.\n\n        (b) (i) The Accused No. 5 is also found guilty and is\nconvicted for an offence punishable under Section 27(3) read\nwith Section 7 of the The Arms Act 1959 and is hereby\nsentenced to death. He shall be hanged by neck till he dies.\n\n        (ii) The Accused No. 5 is also found guilty and convicted\nof an offence punishable under Section 25(1-A) read with\nSection 7 of the Arms Act and is sentenced to R.I. for ten years\nand payment of fine of Rs.5000\/-. In default of payment of fine\nhe shall undergo R.I. for one year.\n\n        (c) The Accused No.5 is also found guilty and convicted\nfor an offence punishable under Section 307 I.P.C. read with\nSection 3(i) (ii) of the M.C.O.C. Act 99 read further with Section\n34 and Section 120-B I.P.C. for attempted murder of Ex mayor\nand sitting corporator of Bombay municipal corporation Shri\nMilind Dattaram Vaidye, aged 35 years and is sentenced to\nR.I. for life and payment of fine of Rs.5 lakhs. In default of\npayment of fine he shall undergo R.I. for three years.\n\n        (d) The Accused No. 5 is also found guilty and convicted\nfor an offence punishable under Section 326 read with section\n120-B I.P.C. read with Section 34 I.P.C. and further read with\nSection 3(i) (ii) M.C.O.C. Act 99 for causing grievous hurt to-\n\n (i)    Shri Nischal Krishan Choudhari aged 27 years\n\n (ii)   Shri Vinay Narayan Akre\n\nand is hereby sentenced to R.I. for ten years and payment of\nfine in the sum of Rs. 5 lakhs. In default of payment of fine he\nshall undergo R.I. for three years.\n\n        (e) The Accused No. 5 is also convicted for an offence\npunishable under section 324 I.P.C. read with section 34 and\n120-B I.P.C. read further with section 3(1)(ii) of M.C.O.C. Act\n99 and is sentenced to suffer R.I. for five years and shall pay\nfine in the sum of Rs.5 lakhs for causing fire arm injuries by\ndangerous weapons with pistols and AK-56 rifle to-\n\n (i)    Shri Babu Kashinath Mangela, aged 40 years.\n\n (ii)   Shri Niteen Narayan, aged 43 years.\n\n (iii) Shri Murguan V. Tewar, aged 26 years\n\nIn default of payment of fine he shall undergo R.I. for one year.\n\n        (f) The Accused No.5 is also convicted of an offence\npunishable under section 3(2) M.C.O.C. Act 99 read with\nSection 120-B I.P.C. and is sentenced to suffer R.I. for life and\nto pay fine in the sum of Rs.5 lakhs. In default of payment of\nfine he shall undergo R.I. for three years.\n\n     (g) The Accused No.5 is also convicted of an offence\npunishable under section 3(4) M.C.O.C. Act 99 read with\nsection 120-B I.P.C. and is sentenced to suffer R.I. for life and\nalso pay fine in the sum of Rs.5 lakhs. In default of payment of\nfine he shall undergo R.I. for three years.\n\nVI. The Accused No.6 Fazal Mohd. Shaikh @ Manni Argamutu\nShetiyar is found guilty and-\n\n      (a) Convicted for an offence punishable under Section\n      302 I.P.C. read with section 3(1)(i) of M.C.O.C. Act 99\n      read with Section 34 and section 120-B I.P.C. for causing\n      murder of-\n\n      (i) Shri Milind Gunaji Chaudhari, aged 34 years\n\n      (ii) Shri Vilas Gopinath Akre, aged 28 years\n\n      (iii) Shri Deepak Sitaram Akre, aged 30 years.\n\n      And is hereby sentenced to death. He shall be hanged\n      by neck till he dies.\n\n(b) (i) Convicted for an offence punishable under section 27(3)\nread with section 7 of the The Arms Act 1959 read with section\n120-B I.P.C. and is hereby sentenced to death. He shall be\nhanged by neck till he dies.\n\n      (iii) also convicted for an offence punishable under\n      section 25(1-A) of the The Arms Act and is sentenced to\n      R.I. for ten years and payment of fine in the sum of\n      Rs.5000\/-, and in default of payment of fine to undergo\n      further R.I. for one year.\n        (c) Convicted for an offence punishable under Section 307\nI.P.C. read with Section 3(1)(ii) of the M.C.O.C. Act 99 read\nfurther with Section 34 and 120-B I.P.C. for attempted murder\nof Ex-Mayor and sitting Corporator of Bombay Municipal\nCorporation Shri Milind Dattaram Vaidya aged 35 years and\nsentenced to R.I. for life and shall pay fine in the sum of Rs.5\nlakhs and in default of payment of fine to undergo further R.I.\nfor three years.\n\n(d) Convicted for an offence punishable under Section 3(2) of\nthe M.C.O.C. Act 99 read with section 120-B I.P.C. for\nfacilitating the organized crime and is sentenced to suffer R.I.\nfor life and to pay fine in the sum of Rs.5 lakhs and in default of\npayment of fine to undergo further R.I. for three years.\n\n(e) Convicted for an offence punishable under Section 326\nread with section 34 and section 120-B I.P.C. further read with\nSection 3(i)(ii) of the M.C.O.C. Act 99 for causing grievous hurt\nto-\n\n (i)    Shri Nischal Krishna Choudhari aged 27 years\n\n (ii)   Shri Vinay Narayan Akre, aged 31 years.\n\nand is sentenced to undergo R.I. for ten years and payment of\nfine in the sum of Rs.5 lakhs and in default of payment of fine\nto undergo R.I. for two years.\n\n(f) also convicted for an offence punishable under Section 324\nI.P.C. read with Section 3(1)(ii) of M.C.O.C. Act 99 read further\nwith Section 34 and 120-B I.P.C. for causing fire arm injuries to\npersons namely-\n\n        (i) Shri Babu Kashinath Mangela, Aged 40 years.\n      (ii) Shri Niteen Narayan, aged 43 years\n\n      (iii) Shri Murguan V. Tewar, aged 26 years.\n\nand is hereby sentenced to R.I. for five years and shall pay fine\nin the sum of Rs.5 lakhs and in default of payment of fine to\nundergo R.I. for one year.\n\nVII. The Accused No. 7 Azizuddin Zahiruddin Shaikh @ Abdul\nSattar is found guilty and-\n\n     (a) Convicted for an offence punishable under Section\n302 read with section 3(1)(i) of the M.C.O.C. Act 99 read\nfurther with section 34 and 120-B I.P.C. for causing murder of-\n\n      (i) Shri Milind Gunaji Chaudhari, aged 34 years.\n\n      (ii) Shri Vilas Gopinath Akre, aged 28 years\n\n      (iii) Shri Deepak Sitaram Akre, aged 30 years.\n\nand is hereby sentenced to death. Accused No. 7 shall be\nhanged by neck till he dies.\n\n(b) (i) Convicted for an offence punishable under section 27(3)\nread with Section 7 of the The Arms Act, 1959 and is hereby\nsentenced to death. He shall be hanged by neck till he dies.\n\n     (ii) Also convicted under section 25(1-A) of the The Arms\nAct for possession of AK-56 rifle prohibited arms and is\nsentenced to suffer R.I. for ten years and payment of fine in\nthe sum of Rs.5,000\/- and in default of payment of fine to\nundergo R.I. for one year.\n\n     (c) Convicted of an offence punishable under Section 307\nI.P.C. read with section 3(i) (ii) of M.C.O.C. Act 99 further read\nwith section 34 and 120-B I.P.C. for attempted murder of Ex-\nMayor and sitting Corporator of Bombay Municipal Corporation\nShri Milind Dattaram Vaidya, aged 35 years and is sentenced\nto undergo R.I. for life and payment of fine in the sum of Rs.5\nlakhs and in default of payment of fine to undergo R.I. for three\nyears.\n\n     (d) Convicted for an offence punishable under Section\n326 read with section 120-B I.P.C. further read with Section\n3(i) (ii) of M.C.O.C. Act 99 for causing grievous hurt to--\n\n      (i) Shri Nischal Krishan Choudhari, aged 27 years\n\n      (ii) Shri Vinay Narayan Akre, aged 31 years.\n\nand is sentenced to suffer R.I. for ten years and payment of\nfine in the sum of Rs.5 lakhs and in default of payment of fine\nto undergo further R.I. for two years.\n\n     (e) Convicted for an offence punishable under section 324\nI.P.C. read with section 3(1)(ii) of M.C.O.C. Act read further\nwith section 34 and 120-B I.P.C. for causing fire arms injuries\nto persons namely,\n\n      (i) Shri Babu Kashinath Mangela, Aged 40 years\n\n      (ii) Shri Niteen Narayan Akre, aged 43 years\n\n      (iii) Shri Murguan V. Tewar, aged 26 years\n\n      and is hereby sentenced to R.I. for five years and shall\n      pay fine in the sum of Rs.5 lakhs. In default of payment\n      of fine he shall undergo R.I. for one year.\n\n(f) Convicted of an offence punishable under Section 3(4) of\nthe M.C.O.C. Act read with Section 120-B I.P.C. and is\nsentenced to R.I. for life and fine in the sum of Rs.5 lakh and in\ndefault of payment of fine to further undergo R.I. for three\nyears.\n\nVIII. The Accused No. 8 Abul Bande Hansan Mistry is found\nguilt and --\n\n(a) Convicted of an offence punishable under Section 302 read\nwith section 34 I.P.C. read with Section 3(1)(i) of M.C.O.C. Act\n99 read further with section 109 read with section 120-B I.P.C.\nand is sentenced to undergo R.I. for life and shall pay fine in\nthe sum of Rs.1 lakh and in default of payment of fine to\nundergo R.I. for three years.\n\n(b) Convicted of an offence punishable under Section 307\nI.P.C. read with section 3(1)(ii) of M.C.O.C. Act 99 read with\nSection 34, 109 and 120-B I.P.C. for attempted murder of Shri\nMilind Dattaram Vaidya, aged 35 years and is sentenced to\nR.I. for life and shall pay fine in the sum of Rs.5 lakhs and in\ndefault of payment of fine to undergo further R.I. for three\nyears.\n\n     (c) Convicted under section 326 I.P.C. read with section\n3(1)(ii) of M.C.O.C. Act 99 read with section 34 I.P.C. for\ncausing grievous hurt to -\n\n(i) Shri Nischal Krishna Choudhari, aged 27 years.\n\n(ii) Shri Vinay Narayan, aged 31 years\n\n      and is sentenced to undergo R.I. for ten years and\n      payment of fine in the sum of Rs.5 lakhs and in default of\n      payment of fine to undergo further R.I. for two years.\n\n     (d) Convicted also for an offence punishable under\nSection 324 read with (34, 109) and 120-B I.P.C. read with\nsection 3(1)(ii) of M.C.O.C. Act 99 for causing fire arm injuries\ncaused to--\n\n      (i) Shri Babu Kashinath Mangela, Aged 40 years,\n\n      (ii) Shri Niteen Narayan, aged 43 years\n\n      (iii) Shri Murguan V. Tewar, aged 26 years.\n\nand is sentenced to R.I. for five years and fine in the sum of\nRs.5 lakhs and in default of payment of fine to suffer R.I. for six\nmonths.\n\n     (e) Convicted for an offence punishable under section 201\nI.P.C. read with section 120-B I.P.C. and is sentenced to R.I.\nfor five years and shall pay fine in the sum of Rs.5,000\/- and in\ndefault of payment of fine to undergo further R.I. for six\nmonths.\n\n     (f) Convicted for an offence punishable under Section 424\nIPC and is sentenced to R.I. for two years.\n\n     (g) Convicted for an offence punishable under section 414\nI.P.C. and is sentenced to suffer R.I. for three years.\"\n\nAs regards fine, the Special Judge directed :-\n\n\"Thirty percent of the amount of total fine if recovered shall be\npaid towards compensation payable under section 357 Cr.\nP.C. to family members of three victims in 1\/3 share for each\nvictim who were died. This is without prejudice to their rights to\nrecover compensation independently at Civil Law.\n\n     Twenty percent of the amount of total fine if recovered be\npaid as compensation payable under section 357 Cr. P.C. to\neach of the of the injured, Viz.\n    (i)    Shri Milind Dataram Vaidya\n\n    (ii)   Shri Nischal Krishna Choudhari\n\n    (iii) Shri Vinay Naryan Akre\n\n   in equal shares. This is without prejudice to their right to\n   recover compensation at Civil law.\n\n           Fifty percent of the amount of total fine if recovered\n   appropriate by State of Maharahstra towards defrayal of\n   costs\/expenses of the prosecution properly incurred.\"\n\n   30. Feeling aggrieved by the aforesaid judgment and order\ndated 05.09.2000 passed by the Special Court, Mumbai Accused\nNo. 7 filed Criminal Appeal No. 661 of 2000; Accused Nos. 1, 5\nand 6 preferred a common appeal which was registered as\nCriminal Appeal No.679 of 2000; Accused No. 8 filed Criminal\nAppeal No. 753 of 2000; and Accused No. 4 filed Criminal Appeal\nNo. 758 of 2000 in the High Court of Bombay. The State of\nMaharashtra did not prefer any appeal against the aforesaid\njudgment and order of acquittal of Accused Nos. 2 and 3. So far as\nthe death sentence imposed by the Special Judge against\nAccused Nos. 5, 6 and 7 is concerned, the matter was referred to\nthe High Court for confirmation which was registered as\nConfirmation Case No. 1 of 2001.\n\n   31. The Division Bench of the High Court by its impugned\njudgment and order dated 17.12.2003 confirmed the conviction of\nAccused No. 1 under Section 3(2) of MCOCA read with Section\n120-B IPC and under Section 3(4) of MCOCA read with Section\n120-B IPC and acquitted him of the charges under Section 212\nread with Section 52A and Section 120-B IPC. The appeal filed by\nAccused No. 4 was dismissed and his conviction and sentence on\nall counts were confirmed. So far as Accused Nos. 5 and 6 are\nconcerned, they have been acquitted of all the charges by the High\nCourt. Though conviction of Accused No. 7 was confirmed under\nSections 302 read with Section 34, 120-B of IPC read with Section\n3(1)(i) of MCOCA, his death sentence was substituted by rigorous\nimprisonment for life plus a fine of Rs.24,000\/- and in default\nthereof, simple imprisonment of one year was imposed. His\nconviction under Sections 304 read with Section 34, 120B IPC\nread with Section 3 (1) (ii) MCOCA; 326 read with Section 120B\nIPC read with 3 (1) (ii) MCOCA; 324 read with Section 34, 120B\nIPC read with Section 3 (1) (ii) MCOCA and Section 3(4) of\nMCOCA read with Section 120B IPC was maintained. Conviction\nand sentence of Accused No. 8 was also maintained.\n\n   32. Aggrieved by the aforesaid judgment and order dated\n17.12.2003<\/pre>\n
 passed by the High Court of Bombay Mohammed
\nFarooq Abdul Gafur Chipa Rangari (Accused No.1), Mansoor
\nHasan Haji Iqbal Pankar (Accused No. 4) and Abdul Hasan Bande
\nHasan Mistri (Accused No. 8) have filed Criminal Appeal No. 85 of
\n2006, Criminal Appeal No. 86 of 2006 and Criminal Appeal No. 87
\nof 2006 respectively. Azzizuddin Zahiruddin Shaikh alias Abdul
\nSattar (Accused No.7) had preferred a special leave petition being
\nSLP (Crl.) No. 1469 of 2004 which stood dismissed on 8th April,
\n2004.\n<\/p>\n
   33. The State of Maharashtra has also filed Criminal Appeal
\nNos. 91-94 of 2006 against the acquittal of Accused No.1 of the
\ncharges under Section 212 read with Section 52 (A) and Section
\n120-B IPC; acquittal of accused Nos. 5 and 6 of all the offences
\nand substitution of sentence from death to life of Accused No. 7 by
\nthe High Court.\n<\/p>\n
   34. Accused Nos. 5 and 6 were not being represented before
\nus. We, therefore, requested Dr. Rajeev B. Masodkar, Advocate,
\nto represent them as amicus curiae. It is necessary to place on
\nrecord that two of the aforesaid accused have jumped the bail and
\nare absconding.\n<\/p>\n
   35. Having dealt with the facts leading to the initiation of the
\ncriminal proceedings and having given a detailed account of the
\ntrial held against all the accused persons, we have set out the
\nnature of the orders of convictions and sentences passed by the
\ntrial court as also the orders passed by the High Court on the
\nappeals filed before it by the accused persons. Accused Nos. 1, 4
\nand 8 as well as the State of Maharashtra filed cross appeal in this
\nCourt. All the aforesaid appeals were listed before us for final
\nhearing upon which we heard the learned counsel appearing for
\nthe respective parties extensively. Some of the submissions of the
\nlearned counsel appearing for the parties were overlapping and,
\ntherefore, we are going to set out the said submissions of the
\nlearned counsel broadly. We, however, deal with the appeals filed
\nby the accused persons in respect of each of the accused and the
\nState separately for the purpose of convenience.\n<\/p>\n
   36. The broad submissions of the counsel appearing for the
\naccused    persons   mainly   center   around      the   confessional
\nstatements of Accused Nos. 8 and 4 having been retracted
\nsubsequently, the same are inadmissible not only against the co-
\naccused but also against the accused who allegedly have made
\nsome confessional statements particularly with regard to the
\nmaking of such confessional statements which fact was not put in
\ntheir examination under Section 313 of Criminal Procedure Code,
\n1973 (for short `CrPC’).\n<\/p>\n
    37. It was submitted that no credence should have been
\nplaced on the Test Identification Parade (for short `TIP’) held in
\nrespect of Accused Nos. 4, 5, 6, 7 and Accused No. 8 particularly
\nwhen they were arrested on different dates i.e. Accused No. 4 was
\narrested on 21.06.1999, Accused Nos. 5 and 6 were arrested on
\n18.06.1999, Accused No. 7 was arrested on 15.06.1999 and
\nAccused No. 8 was arrested on 21.07.1999. TIP was held on
\n10.08.1999 after inordinate delay in as much as in case of
\nAccused No. 4 it was held after 50 days, in case of Accused Nos.
\n5 and 6 it was held after 53 days, in case of Accused No. 7 it was
\nheld after 55 days and in case of Accused No. 8 it was held after
\n19 days. Therefore, in that view of the matter the said TIP has
\nbeen rendered inadmissible in evidence and should not and
\ncannot be relied upon for the purpose of convicting the accused
\npersons.\n<\/p>\n
    38. Another submission which was very forcefully placed
\nbefore us was that the confessional statements cannot be the
\nbasis of conviction in the present cases as the said confessional
\nstatements which were proved in the instant case did not contain
\nthe mandatory certificate as mentioned under Rule 15 of
\nMaharashtra Control of Organized Crime Rules, 1999 (for short
\n`the MCOC Rules’). Rule 15 of the MCOC Rules requires a
\ncertificate to be attached with the confessional statement but the
\nsame apparently is not a part of the record in the instant case
\nthereby rendering the confessional statement as invalid. The
\nmandatory certificate contained the warning which are admittedly
\nnot proved in the trial and the same having been not proved, all the
\nconfessional statements lost its sanctity and, therefore, could not
\nhave been the basis of any conviction.\n<\/p>\n
    39. It was submitted that the basic ingredients for a conviction
\nunder MCOCA were not made out in any of the cases. It was
\nfurther submitted that there are a number of major and vital
\ncontradictions in the evidence of the witnesses produced on behalf
\nof the prosecution in support of its case. It was pointed out that the
\nincident admittedly happened during the night time and it was a
\ncase of sudden happening as alleged by the prosecution itself and,
\ntherefore, none of the accused could have been identified in such
\na short span of about few seconds. Since the identity of the
\naccused persons could not be established and there are a number
\nof vital contradictions in the evidence of the prosecution witnesses,
\nthe accused persons are liable to be acquitted.\n<\/p>\n
    40. The next contention was that the recovery of weapon
\nalleged to have been used by Accused No. 7 was made from an
\nopen space i.e. the hutment roof of a house in a slum hutment,
\nwhich was accessible to all for which Accused No. 7 could not
\nhave been held responsible as the weapon was not in his
\nexclusive possession. It was submitted that there cannot be any
\nconviction and sentence under the provisions of Arms Act in as
\nmuch as the sanction order which was issued was illegal and
\nvitiated and the recovery of the weapons allegedly at the instance
\nof the accused persons are also not in accordance with law rather
\nin violation of the same.\n<\/p>\n
   41. The learned counsel appearing for the State of
\nMaharashta, however, refuted all the aforesaid contentions and
\nsubmissions and submitted that all the ingredients of the offences
\nalleged against each of the accused were fully established in the
\npresent case and, therefore, the only punishment which should
\nhave been given to the accused persons is the capital punishment
\nfor carrying out the daredevil attack and for killing innocent
\npersons. It was submitted that there are substantive and clinching
\nevidence available on record against all the accused persons and,
\ntherefore, the High Court was not justified in converting the capital
\npunishment awarded to the accused-appellants i.e., Azzizuddin
\nZahiruddin Shaikh alias Abdul Sattar (Accused No. 7) to that of life
\nimprisonment, acquitting Mohammed Farooq Abdul Gafur Chipa
\nRangari (Accused No. 1) of the charges under Section 212 read
\nwith Section 52(A) and Section 120-B IPC and acquitting Accused
\nNos. 5 and 6.\n<\/p>\n
   42. It was submitted by the learned counsel appearing for the
\nState that necessary warnings were given to the accused persons
\nbefore recording their confessional statements but part one of the
\nsaid statements which contained warning was misplaced and,
\ntherefore, the same could not be brought on record. The said
\nconfessional statements were recorded in accordance with the
\nrequired formalities and after giving proper warning to the accused
\nperson which fact is proved by the police officer recording such
\nstatements and also by the stenographers who recorded the said
\nstatements. It was further submitted that there could be some
\nminor irregularities while recording the aforesaid statements but
\nthe same would not in any manner vitiate the trial. Besides,
\nreference was made by the counsel appearing for the Government
\nof Maharashtra to Section 15 of MCOCA and placing reliance on
\nthe same he submitted that the said section contained a non-
\nobstante clause and, therefore, it cannot be held that the
\nconfessional statements were not recorded in accordance with
\nlaw.\n<\/p>\n
    43. Learned counsel appearing for the State pointed out that
\nthe submissions of the learned counsel appearing for the
\nappellants that the sanction order is vitiated is not borne out from
\nthe record as the sanction order passed by the competent
\nauthority was a detailed order and not a mechanical order as
\nsought to be suggested by the accused persons. He submitted that
\nthe weapons used by the various accused is proved and
\nestablished by the prosecution witnesses and injury caused to the
\ndeceased and the injured tally substantially with the medical report
\nand, therefore, the accused persons should have been convicted
\nand sentenced to the maximum punishment provided in law. He
\nfurther submitted that the order of acquittal passed by the High
\nCourt in respect of Accused Nos. 5 and 6 namely Mohd. Juber
\nKasam Shaikh alias Tabrej alias Jugnu and Fazal Mohd. Shaikh
\nalias Manni Argamutu Shetiyar is liable to be set aside for which
\nthe State has filed an appeal against the order of acquittal which
\nshould be allowed and the said accused-appellants should be
\nconvicted and sentenced to the maximum punishment.\n<\/p>\n
    44. In the light of the aforesaid submissions of the counsel
\nappearing for the parties we have scrutinized the entire records
\nand the relevant provisions of law applicable to the case at hand.\n<\/p>\n
    Section 2 (1) (e) of the MCOCA defines “organsied crime” as
\nfollows: –\n<\/p>\n
“(e) “organised crime” means any continuing unlawful activity
\nby an individual, singly or jointly, either as a member of an
\norganised crime syndicate or on behalf of such syndicate, by
\nuse of violence or threat of violence or intimidation or coercion,
\nor other unlawful means, with the objective of gaining
\npecuniary benefits, or gaining undue economic or other
\nadvantage for himself or any other person or promoting
\ninsurgency;”\n<\/p>\n
Section 3 of the MCOCA reads as follows: –\n<\/p>\n
“Section 3 – Punishment for organised crime<\/p>\n
(1) Whoever commits an offence of organised crime shall.-\n<\/p>\n
(i) if such offence has resulted in the death of any person, be
\npunishable with death or imprisonment for life and shall also be
\nliable to a fine, subject to a minimum fine of rupees one lac;\n<\/p>\n
(ii) in any other case, be punishable with imprisonment for a
\nterm which shall not be less than five years but which may
\nextend to imprisonment for life and shall also be liable to a fine,
\nsubject to a minimum fine of rupees five lacs.\n<\/p>\n
(2) Whoever conspires or attempts to commit or advocates,
\nabets or knowingly facilitates the commission of an organised
\ncrime or any act preparatory to organised crime, shall be
\npunishable with imprisonment for a term which shall be not
\nless than five years but which may extend to imprisonment for
\nlife and shall also be liable to a fine, subject to a minimum fine
\nof rupees five lacs.\n<\/p>\n
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”\n<\/p>\n
Section 3 of the Arms Act, 1959 reads as follows:
\n“Section 3 – Licence for acquisition and possession of firearms
\nand ammunition<\/p>\n
[(1)] No person shall acquire, have in his possession, or carry
\nany firearm or ammunition unless he holds in this behalf a
\nlicence issued in accordance with the provisions of this Act and
\nthe rules made thereunder:\n<\/p>\n
Provided that a person may, without himself holding a licence,
\ncarry any firearms or ammunition in the presence, or under the
\nwritten authority, of the holder of the licence for repair or for
\nrenewal of the licence or for use by such holder.\n<\/p>\n
[(2) Notwithstanding anything contained in sub-section (1), no
\nperson, other than a person referred to in sub-section (3), shall
\nacquire, have in his possession or carry at any time, more than
\nthree firearms:\n<\/p>\n
Provided that a person who has in his possession more
\nfirearms than three at the commencement of the Arms
\n(Amendment) Act, 1983, may retain with him any three of such
\nfirearms and shall deposit, within ninety days from such
\ncommencement, the remaining firearms with the officer in
\ncharge of the nearest police station, or subject to the
\nconditions prescribed for the purposes of sub-section (1) of
\nsection 21, with a licensed dealer or, where such person is a
\nmember of the armed forces of the Union, in a unit armoury
\nreferred to in that sub-section.\n<\/p>\n
(3) Nothing contained in sub-section (2) shall apply to any
\ndealer in firearms or to any member of a rifle club or rifle
\nassociation licensed or recognised by the Central Government
\nusing a point 22 bore rifle or an air rifle for target practice.
\n(4) The Provisions of sub-section (2) to (6) (both inclusive) of
\nsection 21 shall apply in relation any deposit of firearms under
\nthe proviso to sub-section (2) as they apply in relation to the
\ndeposit of any arms or ammunition under sub-section (1) of
\nthat section.]”\n<\/p>\n
Section 7 of the Arms Act, 1959 reads as follows:\n<\/p>\n
“Section 7 – Prohibition of acquisition or possession, or of
\nmanufacture or sale of prohibited arms or prohibited
\nammunition<\/p>\n
No person shall–\n<\/p>\n
(a) acquire, have in his possession or carry; or<\/p>\n
(b) [use, manufacture,] sell, transfer, convert, repair, test or
\nprove; or<\/p>\n
(c) expose or offer for sale or transfer or have in his
\npossession for sale, transfer, conversion, repair, test or proof;\n<\/p>\n
any prohibited arms or prohibited ammunition unless he has
\nbeen specially authorised by the Central Government in this
\nbehalf.”\n<\/p>\n
Section 25 – Punishment for certain offences<\/p>\n
“Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<\/p>\n
[(1A)Whoever acquires, has in his possession or carries any
\nprohibited arms or prohibited ammunition in contravention of
\nsection 7 shall be punishable with imprisonment for a term
\nwhich shall not be less than five years, but which may extend
\nto ten years and shall also be liable to fine.\n<\/p>\n
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
\n(1B) Whoever–\n<\/p>\n
(a) acquires, has in his possession or carries any firearm or
\nammunition in contravention of section 3;or<\/p>\n
(b) acquires, has in his possession of carries in any place
\nspecified by notification under section 4 any arms of such class
\nor description as has been specified in that notification in
\ncontravention of that section; or<\/p>\n
(c) sells or transfers any firearm which does not bear the name
\nof the maker, manufacturer’s number or other identification
\nmark stamped or otherwise shown thereon as required by sub-
\nsection (2) of section 8 or does any act in contravention of sub-
\nsection (1) of that section; or<\/p>\n
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of
\nclause (a) of sub-section (iii) of clause (a) of sub-section (1) of
\nsection 9 applies,acquires, has in his possession or carries any
\nfirearm or ammunition in contravention of that section;\n<\/p>\n
(e) sells or transfers, or converts, repairs, tests or proves any
\nfirearm or ammunition in contravention of clause (b) of sub-
\nsection (1) of section 9; or<\/p>\n
(f) brings into, or take out of, India, any arm or ammunition in
\ncontravention of section 10; or<\/p>\n
(g) transports any arms or ammunition in contravention of
\nsection 12; or<\/p>\n
(h) fails to deposit arms or ammunition as required by sub-
\nsection (2) of section3, or sub-section (1) of section 21;\n<\/p>\n
(i)being a manufacturer of, or dealer in, arms or ammunition,
\nfails, on being required to do so by rules made under section
\n44, to maintain a record or account or to make therein all such
\nentries as are required by such rules or intentionally makes a
\nfalse entry therein or prevents or obstructs the inspection of
\nsuch record or account of the making of copies of entries
\ntherefrom or prevents or obstructs the entry into any premises
\nor other place where arms or ammunition are or is
\nmanufactured or kept or intentionally fails to exhibit or conceals
\nsuch arms or ammunition or refuses to point out where the
\nsame are or is manufactured or kept;\n<\/p>\n
shall be punishable with imprisonment for a term which shall
\nnot be less than 5 [one year] but which may extend to three
\nyears and shall also be liable to fine;\n<\/p>\n
Provided that the Court may for any adequate and special
\nreason to be recorded in the judgment impose a sentence of
\nimprisonment for a term of less than 6 [one year]”\n<\/p>\n
Section 35 of the Arms Act, 1959 reads as follows:\n<\/p>\n
“Section 35 – Criminal responsibility of persons in occupation
\nof premises in certain cases<\/p>\n
Where any arms or ammunition in respect of which any
\noffence under this Act has been or is being committed are or is
\nfound in any premises, vehicle or other place in the joint
\noccupation or under the joint control of several persons, each
\nof such persons in respect of whom there is reason to believe
\nthat he was aware of the existence of the arms or ammunition
\nin the premises, vehicle or other place shall, unless the
\ncontrary is proved, be liable for that offence in the same
\nmanner as if it has been or is being committed by him alone.”\n<\/p>\n
   45. Now we propose to deal with the various aspects of the
\ncontentions raised in respect of each of the accused persons
\nseparately.\n<\/p>\n
   46. We first proceed to deal with the case of Mohammed
\nFarooq Abdul Gafur Chipa Rangari (Accused No. 1) who was
\narrested on 13.03.1999. Mr. Zafar Sadique, learned counsel
\nappearing for Accused No. 1 very forcefully submitted before us
\nthat Accused No. 1 was convicted only on the basis of the
\nconfessional statement but there is no corroboration of the said
\nconfessional statement. It was also submitted that even no
\nallegation regarding making of any confessional statement was put
\nto the accused when he was examined under Section 313 CrPC. It
\nwas further submitted that since the aforesaid confessional
\nstatement was inadmissible against a co-accused and the same
\nnot being a part of Section 313 CrPC, the sentence passed against
\nthe said accused is liable to be set aside and quashed.\n<\/p>\n
   47. The aforesaid submission when examined in the light of
\nthe records does not find favour. Though it is proved and
\nestablished from the records that Accused No. 1 did not himself
\nparticipate in the actual shootout, it is alleged against him that he
\nwas a part of the gang of Chhota Shakeel, that he was in touch
\nwith the gang leaders in Karachi (Pakistan) and he also acted on
\nbehalf of the said gang so much so that he had effected payment
\nof money arranged by the leaders of the gang to Accused Nos. 5,
\n6, and 8 for causing the shootout. It was submitted by the Public
\nProsecutor appearing for the State of Maharashtra that Accused
\nNo. 1 paid Rs. 25,000\/- to Mohd. Juber Kasam Shaikh alias Tabrej
\nalias Jugnu (Accused No. 5) on 06.03.1999 and Rs. 10,000\/- to
\nAbdul Hasan Bande Hasan Mistri (Accused No. 8). He pointed out
\nthat the allegation is that Accused No. 1 had paid a similar amount
\neven to Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar
\n(Accused No. 6).\n<\/p>\n
    48. The evidence that is placed before us clearly establishes
\nthat Accused No. 1 was responsible for procuring a pistol and
\nhanding over the same to Accused No. 5 which was used in the
\nshootout. The said fact is also established and proved by the
\nconfessional statement of Accused No. 5. Whether or not the said
\nconfessional statement could be used against a co-accused is a
\ndifferent matter which we will discuss at an appropriate stage.\n<\/p>\n
    49. Evidence is also available to prove and establish the fact
\nthat Accused No. 1 is also responsible for arranging a driver i.e.
\nAccused No. 8 who drove the car which was used in the shootout.
\nThe other material which is placed against Accused No. 1 is his
\nown confessional statement recorded under Section 18 of
\nMCOCA. The legality of the aforesaid confessional statement is,
\nhowever, challenged by Accused No.1 on the ground that the
\nsame does not bear a certificate in the identical terms as specified
\nunder Rule 3(6) of the MCOC Rules and that the same was
\nrecorded by Parambir Singh (PW-51) who was an officer
\nassociated with or interest in the investigation of the same.\n<\/p>\n
    50. A perusal of Section 29 of MCOCA shows that it confers a
\nrule making power on the State. The State of Maharshtra in
\nexercise of the said power under sub-section (1) of Section 29 of
\nthe Act framed rules known as `Maharahstra Control of Organised
\nCrime Rules, 1999′. Rule 3 provides for the procedure to be
\nfollowed for recording of confession under Section 18 of MCOCA.
\nSection 18 of the MCOCA reads as follows:\n<\/p>\n
   “Section 18 – Certain confessions made to police officer to be
\n   taken into consideration<\/p>\n
   (1) Notwithstanding anything in the Code or in the Indian
\n   Evidence Act, 1872 (I of 1872), but subject to the provisions of
\n   this section, a confession made by a person before a police
\n   officer not below the rank of the Superintendent of Police ad
\n   recorded by such police officer either in writing or on any
\n   mechanical devices like cassettes, tapes or sound tracks from
\n   which sounds or images can be reproduced, shall be
\n   admissible in the trial of such person or co-accused, abettor or
\n   conspirator:\n<\/p>\n
   Provided that, the co-accused, abettor or conspirator is
\n   charged and tried in the same case together with the accused.\n<\/p>\n
   (2) The confession shall be recorded in a free atmosphere in
\n   the same language in which the person is examined and as
\n   narrated by him.\n<\/p>\n
   (3) The police officer shall, before recording any confession
\n   under sub-section (1), explain to the person making it that he is
\n   not bound to make a confession and that, if he does so, it may
\n   be used as evidence against him and such police officer shall
\n   not record any such confession unless upon questioning the
\n   person making it, he is satisfied that it is being made
\n   voluntarily. The concerned police officer shall, after recording
\n   such voluntary confession, certify in writing below the
\n   confession about his personal satisfaction of the voluntary
\ncharacter of such confession, putting the date and time of the
\nsame.\n<\/p>\n
(4) Every confession recorded under sub-section (1) shall be
\nsent forthwith to the Chief Metropolitan Magistrate or the Chief
\nJudicial Magistrate having jurisdiction over the area in which
\nsuch confession has been recorded and such Magistrate shall
\nforward the recorded confession so received to the Special
\ncourt which may take cognizance of the offence.\n<\/p>\n
(5) The person whom a confession had been recorded under
\nsub-section (1) shall also be produced before the Chief
\nMetropolitan Magistrate or the Chief Judicial Magistrate to
\nwhom the confession is required to be sent under sub-section
\n(4) alongwith the original statement of confession, written or
\nrecorded on mechanical device without unreasonable delay.\n<\/p>\n
(6) The Chief Metropolitan Magistrate or the Chief Judicial
\nMagistrate shall scrupulously record the statement, if any,
\nmade by the accused so produced and get his signature and in
\ncase of any complaint of torture, the person shall be directed to
\nbe produced for medical examination before a Medical Officer
\nnot lower in rank than of an Assistant Civil Surgeon.”\n<\/p>\n
Further, Rule 3(6) of the Rules reads as follows:-\n<\/p>\n
“3. Procedure for recording of confession under Sector 18 of
\nthe Act.\n<\/p>\n
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
\nXXXXXX<\/p>\n
(6) The confession recorded under sub-rule (5) shall, if it is in
\nwriting, be signed by the person who has made such
\n   confession and by the Police Officer, who has recorded the
\n   said confession. Such Police Officer shall, under his own hand,
\n   also make a memorandum at the end of the confession to the
\n   following effect:-\n<\/p>\n
         “I have explained to (name of the confessor) that he is not
\n   bound to make a confession and that, if he does so, any
\n   confession that he makes, may be used as evidence against
\n   him and I am satisfied that this confession has been made
\n   voluntarily. It has been made before me and in my hearing and
\n   has been recorded by me in the language in which it is made
\n   and as narrated by, the confessor. I have read it over to the
\n   confessor and he has admitted it to be verbatim and correct,
\n   and    containing    also   full   and   true   account   of   the
\n   confession\/statement made by him.”\n<\/p>\n
   51. We have perused the aforesaid confessional statement
\nwhich substantially complies with the requirements of Section 18 of
\nMCOCA read with the aforesaid rule.\n<\/p>\n
   52. It was a categorical case of the prosecution that Parambir
\nSingh (PW-51) who recorded the said confessional statement was
\nnever involved with the investigation of the case. The prosecution
\nhas also brought on record that PI Yashwant Puntambekar (PW-\n<\/p>\n
36) of Mahim Police Station was handling the investigation from
\n04.03.1999, then PI Bharat Tambe (PW-59) took over investigation
\non 06.03.1999 and thereafter, ACP Pradeep Sawant (PW-61) took
\ncharge of the investigation from Police Inspector Bharat Tambe on
\n26.03.1999. On going through all the material available on record
\nthe High Court came to the categorical finding that the aforesaid
\nconfessional statement was made voluntarily and while recording
\nthe same post confessional formalities were followed. It was held
\nby the High Court that although the confessional statement does
\nnot bear any certificate in the identical terms as specified under
\nRule 3(6) of the MCOC Rules, 1999, it nevertheless complies with
\nthe requirements of Section 18. Apart from that, there is also
\nevidence on record indicating that Accused No. 1 made several
\nphone calls to gang leaders in Pakistan from various phone
\nbooths. The said fact is also accepted by the trial court as well as
\nby the High Court. We find no plausible reason as to why this
\nCourt should take a different view than what is taken by the trial
\ncourt and the High Court on proper appreciation of the evidence on
\nrecord.\n<\/p>\n
   53. The confessional statement of Accused No. 8 was held to
\nbe admissible by both the courts below in which he had
\ncategorically stated that he knew Accused No. 1 from childhood
\nand that Accused No. 1 had brought him to act as a driver in the
\nsaid shootout and also paid him Rs. 10,000\/- for the job. Accused
\nNo. 8 in his confessional statement had also stated that Accused
\nNo. 5 visited Accused No. 1.\n<\/p>\n
   54. The confessional statements of Accused Nos. 5 and 6 are
\nalso relevant to prove and establish the involvement of Accused
\nNo. 1 with the incident. In the said confessional statement,
\nAccused No. 5 had stated that on 02.03.1999, Faheem informed
\nAccused No. 5 on the phone that he would be sending two pistols
\nwith Accused No. 1. In fact, Accused No. 1 came to the house of
\nAccused No. 5 to deliver the said pistols. It has also come out in
\nthe said confessional statement that out of the two pistols one was
\nnot in order and so the same was returned to Accused No. 1 and
\nthat on 05.03.1999 Accused No. 5 called Accused No. 1 who
\ninformed him that he (Accused No. 1) has spoken to Chhota
\nShakeel over the phone and informed him about the incident on
\nthe previous day. Accused No. 5 has also stated in his
\nconfessional statement that Accused No. 1 informed him that
\nChhota Shakeel had asked Accused No. 1 to pay Accused No. 5
\nsome money. Thereupon, Accused No. 1 paid Rs. 20,000\/- to
\nAccused No. 5 at Vakola and Accused Nos. 5 and 6 together
\ninformed Accused No. 1 that they were going to Kolkata.\n<\/p>\n
   55. Besides aforesaid evidence on record there is also
\nevidence of other witnesses namely PW-21, owner of an STD
\nbooth which was functioning under the name and style of J. J.
\nBrothers Communication Centre. He stated in his statement that
\non 01.03.1999, Accused No. 1 made a phone call to a specific
\nnumber in Karachi (Pakistan). PW-35, who is the owner of phone
\nbooth named Data Link, stated that he personally knew Accused
\nNo. 1. He deposed that Accused No. 1 would come to his booth
\nregularly to make phone calls to Pakistan. PW-37, who was
\nanother witness and the owner of Azari Communication Action
\nCentre, stated in his evidence that Accused No. 1 had made calls
\non specified numbers in Pakistan on 01.03.1999 and 09.03.1999.
\nThis evidence of PW-37 is also found to be corroborated by the
\nevidence of PW-54. Similar is the evidence of PW-43 who
\ndeposed that calls were made by Accused No. 1 to Pakistan.\n<\/p>\n
   56. The High Court disbelieved the aforesaid confessional
\nstatements of Accused Nos. 5 and 6 on the ground that the said
\nconfessional statements were inadmissible in evidence thereby it
\nreversed the findings of the trial court. The High Court came to the
\naforesaid conclusion on the basis that there is no evidence to
\nshow that any preliminary warning was given prior to the recording
\nof the confessional statement and that in absence of proof of the
\nfact that a warning was given prior to the recording of the
\nconfessional statement, the same was inadmissible in evidence.\n<\/p>\n
   57. In our considered opinion the High Court ignored the fact
\nthat there is evidence of PW-64, the typist who had deposed that
\nthe preliminary warning was in fact given which was so recorded
\non 23.07.1999. Considering the facts and circumstances of the
\ncase we find no reason not to accept the said statement of PW-64,
\nthe typist. We also hold that the aforesaid confessional statement
\nof the co-accused could be the basis of conviction under the
\nprovisions of MCOCA.\n<\/p>\n
   58. We, therefore, hold Accused No. 1 guilty of all the charges
\nwhich were already found to be proved and established by the trial
\ncourt and affirmed by the High Court. So far the sentence is
\nconcerned we, however, uphold and confirm the sentence passed
\nby the High Court and also restore the punishment awarded by the
\ntrial court under Section 212 read with Section 52(A) read with
\nSection 120-B IPC.\n<\/p>\n
   59. So far as conviction under MCOCA is concerned, it is quite
\nclear that conviction could be based solely on the basis of the
\nconfessional statement itself and such conviction is also
\npermissible on the basis of the confessional statement of the co-
\naccused which could be used and relied upon for the purpose of
\nconviction. In the case of State v. Nalini, (1999) 5 SCC 253, it was
\nheld by this Court in the context of Section 15 of the Terrorist and
\nDisruptive Activities (Prevention) Act, 1987 (now repealed), which
\nis pari materia with Section 18 of the MCOCA that the evidence of
\na co-accused is admissible as a piece of substantive evidence and
\nin view of the non obstante clause, the CrPC will not apply. The
\nCourt observed as follows in the relevant paras:\n<\/p>\n
   “415. When Section 15 TADA says that confession of an
\n   accused is admissible against a co-accused as well, it would
\n   be substantive evidence against the co-accused. It is a
\n   different matter as to what value is to be attached to the
\n   confession with regard to the co-accused as that would fall in
\n   the realm of appreciation of evidence.\n<\/p>\n
   416. The term “admissible” under Section 15 has to be given a
\n   meaning. When it says that confession is admissible against a
\n   co-accused it can only mean that it is substantive evidence
\n   against him as well as against the maker of the confession.\n<\/p>\n
   417. Mr Natarajan said that the confession may be substantive
\n   evidence against the accused who made it but not against his
\n   co-accused. He reasoned that the confession was not that of
\n   the co-accused and it was not the evidence; it is the confessor
\n   who owned his guilt and not the co-accused; it is not evidence
\n   under Section 3 of the Evidence Act; it is not tested by cross-
\n   examination; and lastly, after all it is the statement of an
\n   accomplice. According to him it can have only corroborative
\n   value and that is a well-established principle of the evidence
\n   even though Section 3 and Section 30 of the Evidence Act be
\n   ignored. But then Section 15 TADA starts with non obstante
\n   clause. It says that neither the Evidence Act nor the Code of
\n   Criminal Procedure will apply. This is certainly a departure
\n   from the ordinary law. But then it was also the submission of
\nMr Natarajan that the bar which is removed under Section 15
\nis qua Sections 24, 25 and 26 of the Evidence Act and not that
\nall the provisions of the Evidence Act have been barred from
\nits application. He, therefore, said that the view taken by this
\nCourt in Kalpnath Rai case7 that Section 30 of the Evidence
\nAct was in any case applicable, was correct. We think,
\nhowever, that the view expressed in that case needs
\nreconsideration.\n<\/p>\n
418. If we analyse Section 15, the words which have been
\nadded by the amending Act, 1993 have to be given proper
\nmeaning and if we accept the argument of Mr Natarajan these
\nwords will be superfluous which would be against the
\nelementary principles of interpretation of statute. For the
\nconfession of an accused to be admissible against a co-
\naccused, proviso to Section 15 says that they should be tried
\ntogether. That is also Section 30 of the Evidence Act. Clauses\n<\/p>\n
(c) and (d) of Section 21 were deleted which raised a
\npresumption of guilt against the co-accused. According to Mr
\nNatarajan, that provision made the confession of a co-accused
\na substantive evidence and Parliament did not think it proper
\nthat it should be so. But then why add the words in Section 15?\n<\/p>\n
419. “Admissible” according to Black’s Law Dictionary means:\n<\/p>\n
“Pertinent and proper to be considered in reaching a decision.
\nUsed with reference to the issues to be decided in any judicial
\nproceeding.”\n<\/p>\n
420. It defines “admissible evidence” as:\n<\/p>\n
“As applied to evidence, the term means that the evidence
\nintroduced is of such a character that the court or judge is
\nbound to receive it; that is, allow it to be introduced at trial. To
\nbe `admissible’ evidence must be relevant, and, inter alia, to be
\n`relevant’ it must tend to establish material proposition….”\n<\/p>\n
If we again refer to Black’s Law Dictionary “substantive
\nevidence” means:\n<\/p>\n
“That adduced for the purpose of proving a fact in issue, as
\nopposed to evidence given for the purpose of discrediting a
\nwitness (i.e. showing that he is unworthy of belief), or of
\ncorroborating his testimony.”\n<\/p>\n
421. TADA was enacted to meet extraordinary situation
\nexisting in the country. Its departure from the law relating to
\nconfession as contained in the Evidence Act is deliberate. Law
\nhas to respond to the reality of the situation. What is
\nadmissible is the evidence. Confession of the accused is
\nadmissible with the same force in its application to the co-
\naccused who is tried in the same case. It is primary evidence
\nand not corroborative. When the legislature enacts that the
\nEvidence Act would not apply, it would mean all the provisions
\nof the Evidence Act including Section 30. By judicial
\ninterpretation or judicial rigmarole, as we may put it, the court
\ncannot again bring into operation Section 30 of the Evidence
\nAct and any such attempt would not appear to be quite
\nwarranted. Reference was made to a few decisions on the
\nquestion of interpretation of Sections 3 and 30 of the Evidence
\nAct, foremost being that of the Privy Council in Bhuboni Sahu
\nv. R.8 and though we note this decision, it would not be
\napplicable because of the view which we have taken on the
\nexclusion of Section 30 of the Evidence Act. In Bhuboni Sahu
\ncase8 the Board opined as under:\n<\/p>\n
“Section 30 seems to be based on the view that an admission
\nby an accused person of his own guilt affords some sort of
\nsanction in support of the truth of his confession against others
\nas well as himself. But a confession of a co-accused is
\nobviously evidence of a very weak type. It does not indeed
\ncome within the definition of `evidence’ contained in Section 3,
\nEvidence Act. It is not required to be given on oath, nor in the
\npresence of the accused, and it cannot be tested by cross-
\nexamination. It is a much weaker type of evidence than the
\nevidence of an approver which is not subject to any of those
\ninfirmities. Section 30, however, provides that the court may
\ntake the confession into consideration and thereby, no doubt,
\nmakes it evidence on which the court may act; but the section
\ndoes not say that the confession is to amount to proof. Clearly
\nthere must be other evidence. The confession is only one
\nelement in the consideration of all the facts proved in the case;
\nit can be put into the scale and weighed with the other
\nevidence. Their Lordships think that the view which has
\nprevailed in most of the High Courts in India, namely that the
\nconfession of a co-accused can be used only in support of
\nother evidence and cannot be made the foundation of a
\nconviction, is correct.”\n<\/p>\n
422. In Kashmira Singh v. State of M.P.9 one of the questions
\nwas how far and in what way the confession of an accused
\nperson can be used against a co-accused. The Court relied on
\nthe observations made by the Privy Council in Bhuboni Sahu
\ncase8 and said that testimony of an accomplice can in law be
\nused to corroborate another though it ought not to be used
\nsave in exceptional circumstances and for reasons disclosed.\n<\/p>\n
423. In Haricharan Kurmi v. State of Bihar10 this Court again
\nrelied on its earlier decision in Kashmira Singh case9 and on
\nthe decision of the Privy Council in Bhuboni Sahu case8. It
\nsaid that technically construed, definition of evidence as
\ncontained in Section 3 of the Evidence Act will not apply to
\nconfession. Even so, Section 30 provides that a confession
\nmay be taken into consideration not only against its maker, but
\nalso against a co-accused person; that is to say, though such a
\nconfession may not be evidence as strictly defined by Section
\n3 of the Act, it is an element which may be taken into
\nconsideration by the criminal court and in that sense, it may be
\ndescribed as evidence in a non-technical way. But it is
\nsignificant that like other evidence which is produced before
\nthe court, it is not obligatory on the court to take the confession
\ninto account. When evidence as defined by the Act is produced
\nbefore the court, it is the duty of the court to consider that
\nevidence. What weight should be attached to such evidence is
\na matter in the discretion of the court. But a court cannot say in
\nrespect of such evidence that it will just not take that evidence
\ninto account. Such an approach can, however, be adopted by
\nthe court in dealing with a confession, because Section 30
\nmerely enables the court to take the confession into account.\n<\/p>\n
424. In view of the above discussions, we hold the confessions
\nof the accused in the present case to be voluntarily and validly
\nmade and under Section 15 of TADA confession of an accused
\n   is admissible against a co-accused as a substantive evidence.
\n   Substantive evidence, however, does not necessarily mean
\n   substantial evidence. It is the quality of evidence that matters.
\n   As to what value is to be attached to a confession will fall
\n   within the domain of appreciation of evidence. As a matter of
\n   prudence, the court may look for some corroboration if
\n   confession is to be used against a co-accused though that will
\n   again be within the sphere of appraisal of evidence.”\n<\/p>\n
   60. Reiterating the aforesaid position of law, this Court in
\nDevender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234,
\nat page 261 observed as follows:\n<\/p>\n
   “33. As was noted in Gurdeep Singh case2 whenever an
\n   accused challenges that his confessional statement is not
\n   voluntary, the initial burden is on the prosecution for it has to
\n   prove that all requirements under Section 15 of TADA and
\n   Rule 15 of the Terrorist and Disruptive Activities (Prevention)
\n   Rules, 1987 (hereinafter referred to as “the Rules”) have been
\n   complied with. Once this is done the prosecution discharges its
\n   burden and then it is for the accused to show and satisfy the
\n   court that the confessional statement was not made voluntarily.
\n   The confessional statement of the accused can be relied upon
\n   for the purpose of conviction, and no further corroboration is
\n   necessary if it relates to the accused himself. It has to be noted
\n   that in Nalini case7 by majority it was held that as a matter of
\n   prudence the court may look for some corroboration if
\n   confession is to be used against a co-accused though that will
\n   be again within the sphere of appraisal of evidence. It is
\n   relevant to note that in Nalini case7 the Court was considering
\nthe permissibility of conviction of a co-accused on the
\nconfessional statement made by another accused. In this case,
\nwe are concerned with the question as to whether the accused
\nmaking the confessional statement can be convicted on the
\nbasis of that alone without any corroboration. The following
\nobservations in Jayawant Dattatray case6 are relevant: (SCC
\np. 146, para 60)<\/p>\n
“60. 2. Confessional statement before the police officer under
\nSection 15 of the TADA is substantive evidence and it can be
\nrelied upon in the trial of such person or co-accused, abettor or
\nconspirator for an offence punishable under the Act or the
\nRules. The police officer before recording the confession has
\nto observe the requirement of sub-section (2) of Section 15.
\nIrregularities here and there would not make such confessional
\nstatement inadmissible in evidence. If the legislature in its
\nwisdom has provided after considering the situation prevailing
\nin the society that such confessional statement can be used as
\nevidence, it would not be just, reasonable and prudent to water
\ndown the scheme of the Act on the assumption that the said
\nstatement was recorded under duress or was not recorded
\ntruly by the officer concerned in whom faith is reposed. It is
\ntrue that there may be some cases where the power is
\nmisused by the authority concerned. But such contention can
\nbe raised in almost all cases and it would be for the court to
\ndecide to what extent the said statement is to be used. Ideal
\ngoal may be: confessional statement is made by the accused
\nas repentance for his crime but for achieving such ideal goal,
\nthere must be altogether different atmosphere in the society.
\nHence, unless a foolproof method is evolved by the society or
\n    such atmosphere is created, there is no alternative, but to
\n    implement the law as it is.”\n<\/p>\n
                                      (emphasis supplied in original)<\/p>\n
    61. In the case of Jameel Ahmed v. State of Rajasthan, (2003)
\n9 SCC 673, at page 689, this Court summarized the aforesaid
\nlegal position as follows:\n<\/p>\n
    “35. To sum up our findings in regard to the legal arguments
\n    addressed in these appeals, we find:\n<\/p><\/blockquote>\n
    (i) If the confessional statement is properly recorded, satisfying
\n    the mandatory provision of Section 15 of the TADA Act and the
\n    Rules made thereunder, and if the same is found by the court
\n    as having been made voluntarily and truthfully then the said
\n    confession is sufficient to base a conviction on the maker of
\n    the confession.\n<\/p><\/blockquote>\n
    (ii) Whether such confession requires corroboration or not, is a
\n    matter for the court considering such confession on facts of
\n    each case.\n<\/p><\/blockquote>\n
    (iii) In regard to the use of such confession as against a co-
\n    accused, it has to be held that as a matter of caution, a general
\n    corroboration should be sought for but in cases where the
\n    court is satisfied that the probative value of such confession is
\n    such that it does not require corroboration then it may base a
\n    conviction on the basis of such confession of the co-accused
\n    without corroboration. But this is an exception to the general
\n    rule of requiring corroboration when such confession is to be
\n    used against a co-accused.\n<\/p><\/blockquote>\n
    (iv) The nature of corroboration required both in regard to the
\n    use of confession against the maker as also in regard to the
\n    use of the same against a co-accused is of a general nature,
\n    unless the court comes to the conclusion that such
\n    corroboration should be on material facts also because of the
\n    facts of a particular case. The degree of corroboration so
\n    required is that which is necessary for a prudent man to
\n    believe in the existence of facts mentioned in the confessional
\n    statement.\n<\/p>\n
    (v) The requirement of sub-rule (5) of Rule 15 of the TADA
\n    Rules which contemplates a confessional statement being sent
\n    to the Chief Metropolitan Magistrate or the Chief Judicial
\n    Magistrate who, in turn, will have to send the same to the
\n    Designated Court is not mandatory and is only directory.
\n    However, the court considering the case of direct transmission
\n    of the confessional statement to the Designated Court should
\n    satisfy itself on facts of each case whether such direct
\n    transmission of the confessional statement in the facts of the
\n    case creates any doubt as to the genuineness of the said
\n    confessional statement.”\n<\/p>\n
    62. Reverting back to the factual position of the present case,
\nso far as Aslam Mohammed Kutti (Accused No. 2) and Abdul
\nKadar Abdul Gafoor Rizvi (Accused No. 3) are concerned, they
\nhave been acquitted by the trial court as against which no appeal
\nwas filed in the High Court, therefore, the said acquittal is not the
\nsubject matter of appeal before us and we are not called upon to
\nlook into the aforesaid order of acquittal passed by the trial court.\n<\/p>\n
   63. We now come to the case of Mansoor Hasan Haji Iqbal
\nPankar (Accused No. 4) who was also represented by the same
\ncounsel who appeared for Accused No. 1. He was arrested on
\n21.06.1999 along with Accused Nos. 2 and 3. Mr. Zafar Sadique,
\nlearned counsel appearing for Accused No. 4, who is also
\nappearing for Accused No. 1, submitted before us that the
\nprosecution failed to show that the confession statement made by
\nhim was voluntary or truthful as there is no corroboration of the
\nsaid confessional statement. It was also submitted that the
\nconfessional statement made by Accused No. 4 having been
\nretracted and the same having not been corroborated by the
\nprosecution witnesses, the impugned judgment cannot be
\nsustained. It was further submitted that since the aforesaid
\nconfessional statement was inadmissible against a co-accused
\nand the same not being a part of Section 313 CrPC, the sentence
\npassed against the said accused is liable to be set aside and
\nquashed. The learned counsel next submitted that Accused No. 4
\nhad not played an active role in the shootout and had no
\nknowledge of the conspiracy.\n<\/p>\n
   64. The aforesaid submissions when examined in the light of
\nthe records cannot be accepted. Though it is proved and
\nestablished from the records that Accused No. 4 did not himself
\nparticipate in the actual shootout, it is alleged against him that he
\nwas a part of the gang of Chhota Shakeel, that he was in constant
\ntouch with Mohd. Faheem and also he acted on behalf of the said
\ngang so much so that he purchased mobile phones and sim cards
\nand he also arranged the Maruti Car on the instructions of Mohd.
\nFaheem which was used for the shootout and received payment
\nfor the same, that he was present during the handing over of AK-
\n56 and pistol to Accused No. 7 on the morning of the incident and
\nhe was privy to the conversations between Chhota Shakeel, Mohd.
\nFaheem and Accused No. 7 on the day of the shootout.\n<\/p>\n
   65. Accused No. 4 himself has admitted that he was in regular
\ncontact over phone with Mohd. Faheem, the associate of Chhota
\nShakeel, that he purchased mobile phone and sim cards on the
\ninstructions of Mohd. Faheem and received payment for the same,
\nthat he arranged the Maruti car which was used for the shootout
\non the instructions of Mohd. Faheem, that he was present during
\nthe handing over of AK-56 and pistol to Accused No. 7 on the
\nmorning of the incident and he was privy to the conversations
\nbetween Chhota Shakeel, Mohd. Faheem and Accused No. 7 on
\nthe day of the shootout and that he was an active member of the
\ngang of Chhota Shakeel who actively participated in the activities
\nof the organized crime syndicate which fact is corroborated by his
\nconfessional statement.\n<\/p>\n
   66. So far as confessional statement of Accused No. 4 is
\nconcerned, we find the same to be trustworthy and reliable. It is
\nevidently clear from the records that the confessional statement of
\nAccused No. 4 was recorded on 30.07.1999 by Ravindra Kadam
\n(PW-39) who was DCP (Zone-IV) which was produced before
\nCMM in a sealed envelop. The aforesaid confessional statement
\nwas found to be in substantial compliance with the requirements of
\nSection 18 of MCOCA. The High Court came to the categorical
\nfinding that post confessional formalities have been followed and
\nalthough the confessional statement does not bear a certificate in
\nthe identical terms as specified under Rule 3(6) of the MCOC
\nRules, there is nevertheless compliance of Section 18 of MCOCA.
\nWe find no plausible ground to discard the view taken by the High
\nCourt in this regard.\n<\/p>\n
    67. The submission of the learned counsel appearing for the
\nState that Accused No. 4 has rendered assistance to the
\norganized crime syndicate by providing phones, sim-cards and
\narranging the car which was used in the shootout gets support
\nfrom the fact that Accused No. 4 himself admitted in his
\nconfessional statement that he was in constant touch with Mohd.
\nFaheem on the phone, bought secondhand mobile phones and
\nsim cards for gang members, stole the Maruti car, brought it to the
\npetrol pump for repairs and subsequently handed over the same to
\nAccused No. 7.\n<\/p>\n
    68. The aforesaid confessional statement is supported by the
\ndeposition of Deepak Narayan Shinde (PW-53), PSI, Crime
\nBranch, Unit IV who deposed that Accused No. 4 led the police to
\nAsia Communication Centre from where he had bought six or
\nseven mobile phones. The aforesaid confessional statement is
\nalso supported by the evidence of the Manager of Chhagan Mitha
\nPetrol Pump, who corroborated the fact that the aforesaid Maruti
\ncar was brought by Accused No. 4 to his petrol pump for repairs
\nand servicing. Further, the evidence of PW-20, a pancha witness,
\nwhose name was kept secret establishes and proves that Accused
\nNo. 4 led the police to the said petrol pump on 25.06.1999.
\nAccused No. 4 also led the police to Lucky Motor Training School
\nwherefrom he obtained a duplicate driving license in the name in
\nhis brother. The evidence of Shabibul Hasan Munir Hasan Sayyed
\n(PW-15), real owner of the Maruti Car, proves that the car bearing
\nNo. BLD 1949 was stolen and that he had lodged a complaint to
\nthat effect on 30.01.1999. The evidence of another witness Abdul
\nNabi Bagwan(PW-42), PSI, RA Kidwai Marg, Police Station who
\ndeposed about the seizure of the aforesaid Maruti car at Jain
\nDerasar Lane clearly throws light on the fact that Accused No. 4
\nwas using the stolen car.\n<\/p>\n
   69. Confessional statement of Accused No. 7, which was
\nfound to be admissible in evidence by the trial court as well as the
\nHigh Court, also corroborates and supports the facts admitted by
\nAccused No. 4 in his confessional statement with regard to his
\n(Accused No. 4’s) role in arranging the Maruti Car which was used
\nin the shootout, his presence during the handing over of the deadly
\nweapons by Accused No. 3 to Accused No. 7 and that he was
\npresent when Accused No. 7 was talking to Chhota Shakeel on
\n04.03.1999. Therefore, it is clear that Accused No. 4 had heard the
\nconversation prior to the shootout and thus had the knowledge
\nabout the conspiracy.\n<\/p>\n
   70. PW-18, cousin of Milind Vaidya, who was an eye-witness
\nto the incident described in detail what he saw on the day of the
\nincident. He deposed that he had seen Accused No. 4 along with
\nAccused Nos. 5, 6 and 7. Later he identified him during TIP. Apart
\nfrom him, Accused No. 4 was also identified by PW-2, PW-3, PW-
\n12, PW-13, PW-22 and PW-30 in the TIP.\n<\/p>\n
   71. In view of the aforesaid submissions made by the learned
\ncounsel appearing for the State and the materials placed on
\nrecord, we do not find any reason to interfere with the findings
\nrecorded by the High Court so far as involvement of Accused No. 4
\nin the incident is concerned. There are cogent and convincing
\nevidence available against him to prove and establish his
\ninvolvement in the entire incident which justifies his convictions
\nand sentences on each count. Therefore, in our considered
\nopinion, the High Court rightly held that Accused No. 4 had played
\nan active and important role in the conspiracy even though he did
\nnot participate in the actual shoot out and that he had the
\nknowledge of the conspiracy. In that view of the matter the
\ncontention of the learned counsel appearing for Accused No. 4 that
\nhe had not played any active role in the shootout and he had no
\nknowledge of the conspiracy is found to be baseless.\n<\/p>\n
    72. We now take up the case of Mohd. Juber Kasam Shaikh
\nalias Tabrej alias Jugnu (Accused No. 5) and Fazal Mohd. Shaikh
\nalias Manni Argamutu Shetiyar (Accused No. 6) who were brought
\nto Mumbai on 26.06.1999, pursuant to wireless message received
\nfrom Delhi Police regarding their arrest by the Special Cell of Delhi
\nPolice.\n<\/p>\n
    73. Learned counsel appearing for Accused Nos. 5 and 6
\nvehemently argued that the present appeal being an appeal
\nagainst acquittal, in a situation wherein two views are manifestly
\npossible, this Court must not interfere with the decision of the High
\nCourt. It submitted that the judgment of the High Court is a
\nperfectly valid based on the basis of true appreciation of the
\nmaterial on record and the same does not call for any interference.\n<\/p>\n
    74. On the other hand, learned counsel appearing for the State
\nrefuted the aforesaid submissions. He submitted that evidence of
\nPW-18, a 12th standard student, who was the eye-witness of the
\nincident and identification by him in the court has been found to be
\nextremely credible by both the courts below. He submitted that
\nPW-18 saw the car from which the assailants alighted shortly prior
\nto the incident and observed them quite carefully and he saw the
\ncar again with the assailants shortly after the incident as well and
\nhas given a detailed description of assailants i.e. Accused Nos. 5,
\n6 and 7. He also described Accused No. 4 and identified all these
\npersons i.e. Accused Nos. 4 to 7 in court. He identified Accused
\nNo. 7 as the person who had fired shots in the air. Counsel further
\nsubmitted that in addition to the evidence of PW-18 there are
\nevidence of certain eye-witnesses namely, PW-2, PW-3, PW-12,
\nPW-13 and PW-30 also which prove the guilt of accused persons.
\nHe next submitted that confessional statement made under
\nSection 18 of MCOCA as well as confessional statements of the
\nco-accused namely, Accused Nos. 1, 7 and 8 are strong evidence
\nagainst Accused Nos. 5 and 6. Moreover, the confessional
\nstatements of co-accused have been found to be admissible by
\nboth the courts below. He further submitted that discovery of 9 mm
\npistol which was used in the firing at the instance of Accused No. 5
\nproves and establishes the guilt of Accused No. 5.\n<\/p>\n
   75. On a careful perusal of the material on record and in the
\nlight of the submissions made by the learned counsel for the
\nparties we find that the evidence of PW-18 who was an eye-
\nwitness of the incident is credible and trustworthy as he described
\nthe incident as well as the assailants in detail. Furthermore, he
\nidentified the accused persons i.e. Accused Nos. 4 to 7 in the court
\nas well as during the TIP. His evidence has been found to be
\ntrustworthy and reliable by both the courts below. The High Court
\nheld that TIP with respect to Accused Nos. 5 and 6 was vitiated
\nbecause Accused No. 5 had a squint in the right eye and the
\ndummies used in the TIP did not have the similar squint in the right
\neye. But, the High Court did not make it clear as to why the
\nidentification of Accused No. 6 was also vitiated. Accused Nos. 5
\nand 6 were also identified by ten witnesses. Therefore, we find the
\nTIP as a reliable piece of evidence as the same proves the identity
\nof accused persons beyond reasonable doubt.\n<\/p>\n
    76. The contention of the learned counsel appearing for
\naccused persons that there was inordinate delay in conducting the
\nTIP cannot be accepted in view of the fact that both the accused
\npersons were taken into custody on 25.06.1999 whereas the TIP
\nwas held on 10.08.1999. Therefore, the TIP was conducted only
\nafter a period of 45 days which is not such a long period to cast
\nany doubt over the evidentiary value of the TIP. Even otherwise, a
\nTIP does not constitute substantive evidence but can only be used
\nfor corroboration of the statement in court. It is primarily meant for
\nthe purpose of helping the investigating agency with an assurance
\nthat their progress with the investigation is proceeding on the right
\nlines. The substantive evidence is the evidence of identification in
\ncourt, which in the present case has been done by PW-18. This
\nCourt in the case of Amitsingh Bhikamsingh Thakur v. State of
\nMaharashtra,(2007) 2 SCC 310, at page 315, has succinctly
\nobserved as follows :\n<\/p>\n
    “13. As was observed by this Court in Matru v. State of U.P.1
\n    identification tests do not constitute substantive evidence.<\/p><\/blockquote>\n
    They are primarily meant for the purpose of helping the
\n    investigating agency with an assurance that their progress with
\n    the investigation into the offence is proceeding on the right
\n    lines. The identification can only be used as corroborative of
\n    the statement in court. (See Santokh Singh v. Izhar Hussain2.)
\n    The<\/a> necessity for holding an identification parade can arise
\nonly when the accused are not previously known to the
\nwitnesses. The whole idea of a test identification parade is that
\nwitnesses who claim to have seen the culprits at the time of
\noccurrence are to identify them from the midst of other persons
\nwithout any aid or any other source. The test is done to check
\nupon their veracity. In other words, the main object of holding
\nan identification parade, during the investigation stage, is to
\ntest the memory of the witnesses based upon first impression
\nand also to enable the prosecution to decide whether all or any
\nof them could be cited as eyewitnesses of the crime. The
\nidentification proceedings are in the nature of tests and
\nsignificantly, therefore, there is no provision for it in the Code
\nof Criminal Procedure, 1973 (in short “the Code”) and the
\nEvidence Act, 1872 (in short “the Evidence Act”). It is desirable
\nthat a test identification parade should be conducted as soon
\nas after the arrest of the accused. This becomes necessary to
\neliminate the possibility of the accused being shown to the
\nwitnesses prior to the test identification parade. This is a very
\ncommon plea of the accused and, therefore, the prosecution
\nhas to be cautious to ensure that there is no scope for making
\nsuch allegation. If, however, circumstances are beyond control
\nand there is some delay, it cannot be said to be fatal to the
\nprosecution.\n<\/p>\n
14. “7. It is trite to say that the substantive evidence is the
\nevidence of identification in court. Apart from the clear
\nprovisions of Section 9 of the Evidence Act, the position in law
\nis well settled by a catena of decisions of this Court. The facts,
\nwhich establish the identity of the accused persons, are
\nrelevant under Section 9 of the Evidence Act. As a general
\n   rule, the substantive evidence of a witness is the statement
\n   made in court. The evidence of mere identification of the
\n   accused person at the trial for the first time is from its very
\n   nature inherently of a weak character. The purpose of a prior
\n   test identification, therefore, is to test and strengthen the
\n   trustworthiness of that evidence. It is accordingly considered a
\n   safe rule of prudence to generally look for corroboration of the
\n   sworn testimony of witnesses in court as to the identity of the
\n   accused who are strangers to them, in the form of earlier
\n   identification proceedings. This rule of prudence, however, is
\n   subject to exceptions, when, for example, the court is
\n   impressed by a particular witness on whose testimony it can
\n   safely   rely,   without   such    or   other   corroboration.   The
\n   identification parades belong to the stage of investigation, and
\n   there is no provision in the Code of Criminal Procedure which
\n   obliges the investigating agency to hold, or confers a right
\n   upon the accused to claim a test identification parade. They do
\n   not constitute substantive evidence and these parades are
\n   essentially governed by Section 162 of the Code of Criminal
\n   Procedure. Failure to hold a test identification parade would
\n   not make inadmissible the evidence of identification in court.
\n   The weight to be attached to such identification should be a
\n   matter for the courts of fact. In appropriate cases it may accept
\n   the evidence of identification even without insisting on
\n   corroboration.    (See     Kanta   Prashad      v.   Delhi   Admn.3,
\n   Vaikuntam Chandrappa<\/a> v. State of A.P.4, Budhsen v. State of
\n   U.P.5 and Rameshwar Singh<\/a> v. State of J&K6.).”\n<\/p>\n
   77. Next contention of the learned counsel appearing for the
\naccused persons that the photograph of Accused No. 5 was
\npublished in an Urdu daily thereby making the identity of Accused
\nNo. 5 public also does not find favour in view of the fact that the
\nwitnesses are Maharashtrians and, therefore, there is no likelihood
\nof their reading the paper and seeing the photograph of Accused
\nNo. 5.\n<\/p>\n
    78. The evidence of another eye-witness PW-13, a student
\nwho was a by-stander, was not believed by the High Court on the
\npremise that he did not disclose the incident to anybody for four
\ndays. In our view, the evidence of PW-13 ought to have been
\nrelied upon by the High Court as he clearly stated in his evidence
\nthat though he did not see the faces of the assailants, he saw the
\nface of the driver-Accused No. 8 whom he described. He stated
\nthat he saw the bodyguard of Milind Vaidya chase the car with a
\nrifle. He also noted the number of the car as MH 01 N 7514. His
\nstatement gets support from the evidence of PW-3, the body-guard
\nof Milind Vaidya who was an eye-witness of the incident and who
\ndeposed that he chased the car up to some distance but did not
\nfire any shot, although armed with a carbine. The statement of
\nPW-13 also gets corroboration from the evidence of PW-30, who
\nwas an injured witness of the incident and who deposed that he
\nsaw both the bodyguards of Milind Vaidya chase the car and one
\nof them fired at it. Therefore, it would not be proper and justified to
\ndiscard his evidence only because he did not state about the
\nincident to anyone for four days. Since his evidence is
\ncorroborated and supported by other material evidence on record
\nthe same cannot be discarded only because of the aforesaid
\nreason.\n<\/p>\n
   79. The evidence of PW-12 and PW30, who were injured
\nwitnesses, was disbelieved by the High Court though these
\nwitnesses have given a reasonable description of the assailants.
\nMoreover, their evidence was not shaken in the cross-examination.
\nPW-30 deposed that he saw all the 3 assailants and saw both the
\nbodyguards of Milind Vaidya chase the car and one of them fired
\nat it. He also described the assailants. In our opinion, the injured
\nwitnesses as well as the other eye-witnesses have no reason to
\nfalsely depose against the accused persons as it was not shown
\nthat they had either any prior enmity with the accused persons or
\nthey are interested parties. In fact, they are the victims of the
\nhorrendous and ghastly attack made by the perpetrators.\n<\/p>\n
   80. Dinanath Pawar PW-2 and Sandeep Waghmare PW-3,
\nwho were the bodyguards of the intended target, Milind Vaidya
\nwere eye-witnesses of the incident. PW-2 stated in his deposition
\nthat he fired three rounds from his pistol at the Maruti car. PW-3
\nstated in his deposition that he chased the car up to some distance
\nbut did not fire any shot, although armed with a carbine. Their
\nstatements are corroborated by the evidence of PW-30 who
\ndeposed that he saw all the 3 assailants and saw both the
\nbodyguards of Milind Vaidya chase the car and one of them fired
\nat it. Statements of both the eye-witnesses i.e. PW-2 and PW-3
\nare also supported by the evidence of another eye-witness PW-13,
\na student who was a by-stander who deposed that he saw the
\nbodyguard of Milind Vaidya chase the car with a rifle. Both of them
\nwere the persons who actually witnessed the shootout and were
\npresent at the site of the shootout. Furthermore, both of them have
\ngiven a description of the physical features of the assailants
\nincluding Accused Nos. 5 and 6. Therefore, in our considered
\nopinion, the High Court ought to have relied upon the evidence of
\nPW-2 and PW-3 in the light of the circumstantial evidence brought
\non record. Thus, the trial court rightly found the evidence of PW-2
\nand 3 trustworthy and reliable as both of them have the best
\navailable opportunity to see the assailants.\n<\/p>\n
    81. Confessional statements of Accused Nos. 5 and 6 were
\nrecorded before DCP Shinde on 26.07.1999. Accused No. 5 stated
\nin his confessional statement that he had joined the Chhota
\nShakeel gang and was constantly in touch with Chhota Shakeel.
\nHe also stated that he had been receiving funds from Chhota
\nShakeel and had been arrested on three different occasions. On
\nan analysis of the confessional statement of Accused No. 5 we find
\nthat he has made a detailed statement of the instructions he
\nreceived from Mohd. Faheem and Chhota Shakeel in Karachi,
\nPakistan to kill Milind Vaidya and has stated the involvement of
\nAccused Nos. 1, 6, 7 and 8 in the shootout. After the shootout he
\nwas advised by Mohd. Faheem to leave Mumbai and so he fled to
\nKolkata and subsequently to Nepal wherefrom he was finally
\narrested on or about 09.06.1999.\n<\/p>\n
    82. Accused No. 6 stated about his earlier involvement in
\nmurder cases in his confessional statement. He also stated as to
\nhow he met Accused No. 5 in Aurther Road Jail and that Accused
\nNo. 5 introduced him to the Chhota Shakeel gang. Confessional
\nstatement of Accused No. 6 is found to be almost identical to the
\nconfessional statement of Accused No. 5.\n<\/p>\n
    83. Both the aforesaid confessional statements of Accused
\nNos. 5 and 6 were held to be vitiated and inadmissible by the High
\nCourt on the ground that the requirements under Section 18 (3) of
\nMCOCA were not fully complied with. The High Court came to this
\nconclusion on the basis that the record of the preliminary inquiry in
\nrespect of Accused Nos. 5 and 6 recorded on 23.07.1999 could
\nnot be traced. The High Court also held that there was no
\ncompliance of the mandatory provisions of Rule 15 of the MCOC
\nRules which requires a certificate to be attached with the
\nconfessional statement.\n<\/p>\n
   84. When we analyze the material on record and the aforesaid
\nconfessional statements of Accused Nos. 5 and 6 we find that
\nalthough the fact that the pre-confessional statements were
\nrecorded on 23.07.1999 is not traceable, the fact that they were
\nactually recorded is corroborated by the evidence of PW-64, the
\ntypist who had deposed that the preliminary statements were
\nrecorded on 23.07.1999. Thereafter, they were given a period of
\nreflection for 48 hours which is corroborated by PW-60, PW-63
\nand PW-64. Therefore, there can be no doubt that the accused
\nwere sufficiently warned in advance about the consequences of
\ntheir confessions. In our considered opinion, the High Court
\naltogether failed to take into account the evidence of PW-64, the
\ntypist. The trial court has rightly held that all the requirements
\nunder Section 18 (3) of MCOCA were fully complied with while
\nrecording the confessional statements. Moreover, Accused Nos. 7
\nand 8 also described the involvement of Accused Nos. 5 and 6 in
\nthe shootout in their respective confessional statements. We find
\nthat the confessional statements of Accused Nos. 7 and 8 are
\nconsistent with the confessional statements of Accused Nos. 5 and\n<\/p>\n
6. Reliance in this regard may be made to the decision of this
\nCourt in the case of Jaywant Dattatray v. State of Maharashtra,
\n(2001) 10 SCC 109, wherein it was held that irregularities here and
\nthere would not make the confessional statement inadmissible.\n<\/p>\n
    85. The reasoning of the High Court that the confessional
\nstatements of the co-accused are not admissible in evidence
\nbecause Section 313 of CrPC had not been complied with is not
\ntenable as there is a non-obstante clause in Section 18 (3) which
\nprecludes the application of CrPC and, therefore, the evidence of a
\nco-accused is admissible as a piece of substantive evidence. [See
\nNalini case (supra)]<\/p>\n
    86. When we examine the report of the ballistic expert and the
\nsubmission of learned counsel appearing for the State with respect
\nto the discovery of 9 mm pistol at the instance of Accused No. 5
\nwhich was used in the firing, we find that the report of the ballistic
\nexpert shows that the weapon and bullets tally with each other
\nand, therefore, we come to a clear conclusion that the weapon was
\nused in firing during the shootout. Moreover, there is a clear finding
\nof fact by both the courts below that the 9 mm pistol was recovered
\non 18.07.1999 at the instance of Accused No. 5 from his hut in
\nMahim. Therefore, in our considered opinion, this recovery of
\nweapon clearly proves and establishes the guilt of Accused No. 5.\n<\/p>\n
    87. It is clear from the material on record that Accused No. 5
\nmade certain telephone calls to gang leaders in Karachi, Pakistan.
\nThis fact gets corroboration from the discovery of 3 telephone
\nbooths in Bandra and Mahim at the instance of Accused No. 5
\nwherefrom telephone calls were made by him to the gang leaders
\nin Karachi, Pakistan. This evidence gets further corroboration from
\nthe evidence of the owners of the telephone booths who deposed
\nthat calls were actually made to certain specific numbers in
\nKarachi, Pakistan by Accused No. 5. In our opinion the High Court
\nwas not justified in holding that it was not established with certainty
\nthat those telephone calls even though made indeed from the
\nbooths identified by Accused No. 5 and on the numbers disclosed
\nby him, were actually made by Accused No. 5 because the
\nprosecution has examined six STD\/ISD booth owners to prove that
\nsome of the accused had made telephone calls from their booths
\nto Karachi, Pakistan and their evidence was found to be cogent
\nand trustworthy by both the trial court as well as by the High Court
\nitself. Therefore, the view taken by the High Court with respect to
\nAccused No. 5 is not a plausible view as the same is in
\ncontradistinction of the view taken by the High Court with regard to
\nother accused persons and it is proved from the material on record
\nthat Accused No. 5 has made certain telephone calls to gang
\nleaders at specific numbers in Karachi, Pakistan.\n<\/p>\n
    88. The High Court erroneously held that conviction under
\nSection 27 (3) read with Section 7 of the Arms Act could not be
\nsustained although a 9 mm pistol was recovered at the instance of
\nAccused No. 5 and it is proved that Accused No. 5 had used the
\npistol. Further, the report of the ballistic expert establishes and
\nproves that the weapon and the bullets tally each other. The
\nballistic expert also opined in the report that one of the victims of
\nthe shootout was killed due to a bullet from a 9 mm pistol. Apart
\nfrom the report of ballistic expert there is medical evidence
\navailable on the record which show that the death of the three
\ndeceased persons was caused by the injuries sustained due to fire
\narms during the shootout and, therefore, it can be inferred that the
\nweapon was used in the shootout. It is pertinent to note that
\nAccused No. 6 had also used the pistols and fired during the
\nshootout. Moreover, though in case of Accused No. 7 the High
\nCourt held that the evidence does not disclose that the bullets fired
\nfrom AK-56 had resulted in the death of any person, it convicted
\nhim under Section 27 (2) of the Arms Act.\n<\/p>\n
    89. The finding of the High Court that the sanction order under
\nSection 39 of the Arms Act suffered from non-application of mind is
\nnot sustainable in view of the material available on record as we
\nfind that the sanction order in the present case is a detailed one
\nand displays proper application of mind. Reference in this regard
\nmay be made to the decision of this Court in Gunvantlal v. State of
\nM. P., (1972) 2 SCC 194, wherein it was held that under the Arms
\nAct all that is required for sanction for prosecution under Section
\n39, is that the person to be prosecuted was found to be in
\npossession of the firearm, the date or dates on which he was so
\nfound in possession and the possession of the firearm was without
\na valid licence.\n<\/p>\n
    90. In view of the above, the order of acquittal passed by the
\nHigh Court in respect of Accused Nos. 5 and 6 is hereby set aside
\nin the appeal filed by the State of Maharashtra. Both the accused
\npersons are convicted for the charges as alleged against them and
\nsentenced to undergo rigorous imprisonment for life.\n<\/p>\n
    91. So far as Azzizuddin Zahiruddin Shaikh alias Abdul Sattar
\n(Accused No. 7) is concerned, he was sentenced to capital
\npunishment by the trial court. The High Court, however, on appeal
\nwhile maintaining the order of conviction altered the sentence from
\ncapital punishment to that of imprisonment for life. Being aggrieved
\nby the aforesaid order of conviction passed by the High Court,
\nAccused No.7 preferred a special leave petition being SLP (Crl.)
\nNo. 1469 of 2004 which was dismissed by an order dated 8th April,
\n2004. Therefore, the order of conviction passed against Accused
\nNo. 7 sentencing him to undergo imprisonment for life stood
\nupheld. So far as the State appeal as far as Accused No. 7 is
\nconcerned, it is filed only for the purpose of enhancement of his
\nsentence in as much as the State by filing the present appeal has
\nquestioned the order of the High Court altering the sentence of
\ncapital punishment to that of imprisonment for life. However,
\nconsidering the entire facts and circumstances of the case and the
\nevidence placed on record against him, we find that capital
\npunishment in the instant case would not be justified and,
\ntherefore, the appeal of the State so far the issue with regard to
\nalteration of the sentence of imprisonment of life to that of capital
\npunishment is dismissed.\n<\/p>\n
   92. Lastly, we take up the case of Abdul Hasan Bande Hasan
\nMistri (Accused No. 8) who was arrested on 21.07.1999. The
\nlearned counsel appearing for Accused No. 8 vehemently
\ncontended that the confessional statement was recorded in
\ncontravention of Section 18 of MCOCA and Rules and the said
\nconfessional statement was not corroborated by any cogent
\nevidence to establish the guilt of the accused. It was further
\ncontended that the identification of Accused No. 8 by PW 22 in TIP
\ndoes not inspire confidence and the same should not have been
\ntaken into consideration by the Court.\n<\/p>\n
   93. Learned counsel appearing for the State, submitted that
\nAccused No. 8 was the person who drove the car on the day of
\nincident. He made Accused No. 1 drive the Maruti car in which
\nAccused Nos. 5, 6 and 7 reached the place of incident and from
\nthe said car they fired at the victims. Furthermore, he was paid for
\nthe job by Accused No. 1.\n<\/p>\n
    94. On a meticulous perusal of the materials placed on record
\nwe find that the confessional statement of Accused No. 8 was
\nrecorded under Section 18 of MCOCA by DCP Ravindra Kadam
\n(PW-39) on 16.08.1999 in which Accused No. 8 disclosed that he
\nknew Accused No. 1 and has seen Accused No. 5 visiting Accused
\nNo. 1, that Accused No. 1 promised to pay Rs. 10,000\/- to him for
\nacting as a driver for the purpose of committing the crime and the
\namount was actually paid to him by Accused No. 1 on 06.03.1999,
\nthat he met Accused No. 5 at the instance of Accused No. 1 and
\nboth of them then contacted Chhota Shakeel, that he was driving
\nthe car and Accused No. 7 sat by his side while Accused Nos. 5
\nand 6 sat at the back seat.\n<\/p>\n
    95. The aforesaid confessional statement of Accused No. 8 is
\nfound to be admissible in evidence and relied upon by both the
\ncourts below having been found to be recorded in compliance with
\nSection 18 of MCOCA. When we examine the aforesaid
\nconfessional statement we find that Accused No. 8 has given a
\ndetailed account of the incident and the modus operandi of the
\naccused persons. He has given complete description of the role
\nplayed by Accused Nos. 5, 6 and 7 in the shootout. Therefore, in
\nour considered opinion, the High Court rightly came to the
\nconclusion that Accused No. 8 conspired with the other accused
\npersons and also rendered assistance in the commission of
\norganized crime even though he did not fire any shot or carry arms
\nwith him. His participation in the crime was significant.\n<\/p>\n
    96. On an analysis we find that the aforesaid confessional
\nstatement of Accused No. 8 is supported by the confessional
\nstatements of the co-accused namely, Accused Nos. 5, 6 and 7.
\nThe confessional statement of Accused No. 7 which is found to be
\nadmissible in evidence and relied upon by both the courts below
\nclearly establishes the role played by Accused No. 8. The role
\nplayed by Accused No. 8 is also proved and established from the
\nevidence of PW-22, a boy from Vadala (Jain Darsan Lane), who
\nhas given a sufficiently detailed account of what he saw on the day
\nwhen the car was abandoned. He deposed that he had seen
\nAccused No. 8 on 07.03.1999 while he was abandoning the car
\nwhich was used in the shootout. He identified Accused No. 8 in the
\nTIP. Accused No. 8 was also identified by PW-13, an eye-witness
\nto the crime. The High Court found the testimony of PW-22 as
\ntruthful and trustworthy.\n<\/p>\n
    97. Evidence of Shrirang Balwanrao Shinde (PW-54), PSI,
\nCrime Branch, Unit-IV and PW-31, pancha witness proves that
\nAccused No. 8 led the police to Room No. 15, 3rd Floor, Building
\nNo. 1, Kidwai Nagar, Vadala on 29.07.1999 where his parents
\nwere also present and he took out two number plates of the car
\nfrom the place which was used in the shootout wrapped in a paper
\nunderneath a wooden bench. Both the number plates bore No. MH
\n01 N 7514.\n<\/p>\n
    98. In the light of the aforesaid evidence on record we find that
\neven though Accused No. 8 has not fired any shot and he was not
\ncarrying any arms with him but he played an active role in the
\ncrime and his participation in the crime was significant. He was the
\nperson who took the assailants to the place of incident by driving
\nthe stolen Maruti car and he received the money for driving the car
\nwhich fact was admitted by him in his confessional statement. It is
\nalso clear from the records that he was an active member of the
\ngang of Chhota Shakeel and was involved in the criminal activities
\nof the organized crime syndicate run by the gang leaders.
\nTherefore, we uphold the order of conviction and sentence passed
\nby the High Court against him.\n<\/p>\n
    99. In nutshell, order of conviction and sentence passed by the
\nHigh Court in respect of Accused Nos. 1, 4 and 8 are to be
\nmaintained. Since no appeal against the acquittal of Accused Nos.
\n2 and 3 filed in the High Court against their acquittal by the trial
\ncourt, the said acquittal is not the subject matter of appeal before
\nus. Order of acquittal passed by the High Court in respect of
\nAccused Nos. 5 and 6 is set aside in the appeal filed by the State
\nand they are directed to undergo rigorous imprisonment for life.
\nAccused No. 7 has been sentenced to capital punishment by the
\ntrial court which was altered to the rigorous imprisonment for life by
\nthe High Court against which an SLP was filed in this Court which
\nwas dismissed. Since in one of the appeals relating to a co-
\naccused, life sentence awarded was upheld by this Court without
\nissuing any notice for enhancement of sentence, we find no reason
\nto take a different view in cases of the other accused herein,
\nparticularly when in respect of Accused Nos. 5 and 6 there was an
\norder of acquittal by one Court. Lastly, the order of conviction and
\nsentence passed by the High Court against Accused No. 8 is
\nupheld and the sentence of imprisonment of life is maintained on
\nthe same ground. Before parting with the records, we would like to
\nplace on record our deep appreciation for the valuable assistance
\nprovided by Dr. Rajeev B. Masodkar, Advocate as amicus curiae
\nof Accused Nos. 5 and 6.\n<\/p>\n
    S.B. SINHA, J.\n<\/p>\n
INTRODUCTION<\/p>\n
    1. I have had the opportunity of going through the draft
\ncirculated by my brother judge Mukundakam Sharma, J. and I am
\nin complete agreement with the views expressed by him therein.\n<\/p>\n
    2. However, I may add a few words on the appeals by the
\nState of Maharashtra against the impugned judgment as regards
\nimposition of capital sentence on three Accused herein namely,
\nAccused 5, M Zuber Kasam Shaikh, Accused 6, Fazal Mohd
\nShaikh and Accused 7, Azzizuddin Zahiruddin Shaikh.\n<\/p>\n
CONTENTIONS OF THE STATE<\/p>\n
    3. It was argued before us by the State of Maharashtra that the
\ncase at hand falls within the category of the `rarest of rare’. It was
\nsubmitted that in the facts and circumstances of the case only a
\ndeath sentence would meet the requirements of justice. Contention
\nof the State that what brought this case within the special category
\nof the `rarest of rare cases’ was the fact that the incident in
\nquestion was not a stray crime of murder but was in fact an
\nextremely sophisticated and organised crime whose strings had
\nbeen attached to outside the country. Accordingly the incident
\nwhich resulted in the death of three persons and caused grievous
\ninjury to seven, was an assault on civilised society.\n<\/p>\n
    4. The State of Maharashtra has further relied on the long
\ncriminal history of all the three accused namely, Accused 5, M
\nZuber Kasam Shaikh , Accused 6, Fazal Mohd Shaikh and
\nAccused 7, Azzizuddin Zahiruddin Shaikh to show that they were
\nhardened and seasoned criminals. It is emphasized that Accused
\n7, Azzizuddin Zahiruddin Shaikh had received training from the ISI
\nin Pakistan, likewise both Accused 5, M Zuber Kasam Shaikh and
\nAccused 6, Fazal Mohd Shaikh were contract killers who were
\nworking for Chotta Shakeel and Faheem. It has been argued that
\nthe imposition of a prison sentence on the accused would not be
\ndeterrent but would only serve as an opportunity for these
\ncriminals to further network on behalf of their gang. In fact it has
\nbeen argued that Accused 5, M Zuber Kasam Shaikh had come in
\ncontact with Accused 6, Fazal Mohd Shaikh while serving his
\nprison sentence and therefore the jail sentence would hardly prove
\na deterrent to such seasoned and hardened criminals. These
\nsubmissions of the State in our opinion deserve to be rejected in
\nthe strongest words.\n<\/p>\n
CAPITAL SENTENCING AND PROCEDURAL JUSTICE<\/p>\n
    5. Indian courts have a long experience in exercising wide
\ndiscretion to select penalty under section 302. A fair capital
\nsentencing system, which aims towards achieving a consistent and
\nprincipled approach and delineating articulate sentencing pegs has
\nlong been the concern of this court. Bachan Singh v. State of
\nPunjab [(1980 2 SCC 684] and thereafter numerous judgments
\nhave tried to clear the fog on this issue.\n<\/p>\n
    6. In this regard, it is pertinent to revisit the basic tenets of our
\nsentencing system. Any capital sentencing system, by virtue of the
\nnature of penalty it deals with, inheres a hierarchical review
\nmechanism. A tiered court system is at the heart of achieving a
\nsubstantial standard of review which essentially kicks in as soon
\nas death punishment is awarded. The review courts are supposed
\nto assess the findings emerging from the pre-sentencing hearing at
\nthe trial stage as also other available material and then arrive at
\nconclusion of its own on the propriety of sentence. In this context,
\napex court as the final reviewing authority has a far more serious
\nand intensive duty to discharge. The court not only has to ensure
\nthat award of death penalty does not become a perfunctory
\nexercise of discretion under section 302 after an ostensible
\nconsideration of Rarest of Rare doctrine, but also that the decision
\nmaking process survives the special rigors of procedural justice
\napplicable in this regard. Procedural justice threshold not only
\nemphasizes the substantive compliance of Bachan Singh dicta,
\n[for a comprehensive treatment of Bachan Singh (supra) see
\nSantosh Kumar Satishbhushan Bariyar v. State of Maharashtra<\/a>
\n[2009 (7) SCALE 341] in relation to selection of penalty, but also
\ncompliance of other due process requirements. It must be noted
\nthat administration of Death Penalty is carried out in the intensive
\ngaze of Article 14 and Article 21 requirements. Bariyar (supra)
\naptly captures the sentiment in this regard:\n<\/p>\n
    “We are also governed by the Constitution of India. Article 14
\n    and 21 are constitutional safeguards and define the framework
\n    for state in its functions, including penal functions. They
\n    introduce values of institutional propriety, in terms of fairness,
\n    reasonableness and equal treatment challenge with respect to
\n    procedure to be invoked by the state in its dealings with people
\n    in various capacities, including as a convict. The position is, if
\n    the state is precariously placed to administer a policy within the
\n    confines of Article 21 and 14, it should be applied most
\n    sparingly. This view flows from Bachan Singh (supra) and it
\n    this light, we are afraid that Constitution does not permit us to
\n    take a re-look on the capital punishment policy and meet
\n    society’s cry for justice through this instrument.”<\/p><\/blockquote>\n
    7. It is universally acknowledged that judicial discretion is
\nsubjective in nature and left to itself has potential to become erratic
\nand personality based which makes it antithetical to the spirit of
\nArticle 14. Article 14 applies to judicial process including exercise
\nof judicial discretion as it applies to the executive process. Of
\ncourse, the nature of Article 14 application in this case will be on a
\ndifferent plane altogether and an objective analysis on that count
\nwould have to meet the Ceteris paribus (with other things the
\nsame) requirement. The disparity in capital sentencing has been
\nunequivocally asserted not only in Bariyar (supra) but also in Aloke
\nNath Dutt and ors. v. State of West Bengal,<\/a> [2006 (13) SCALE
\n467] and in Swamy Shraddananda @ Murli Manohar Mishra v.
\nState of Karnataka [2008 (10) SCALE 669].\n<\/p>\n
    8. In such a scenario, rule based judging norms and sound
\nrules of prudence are the only guarantee to fair and equitable
\nsentencing. This emerges from the constitutional context to the
\nadministration of capital sentencing problem as also a closer
\nreading of rarest of rare test. The Bachan Singh court invoked the
\nsuperlative standard safeguarded the judicial space to award
\ndeath penalty. We should bear in mind that the test will be fulfilled
\nnot merely by employing the “personal predilection” of a judge [see
\nSwamy Shraddananda (supra)] and deciding the rarest of rare
\ninstance on the facts of the case, but only after due consideration
\nof the intangibles relating to the case. The assessment of “rarest of
\nthe rare case” is incomplete without coming to the conclusion that
\nthe “the lesser alternative is unquestionably foreclosed”. And
\nprocedural fairness and justice concerns form part of the latter
\ncondition.\n<\/p>\n
    9. What are the other due process requirements such that the
\nlesser alternative can be said to be unquestionably foreclosed? It
\nis to be noted that the selection of Life Imprisonment as a lesser
\nalternative can not be deemed to be “unquestionably foreclosed”
\ntill the time objective fairness standards as to the sentencing
\nprocess are attained with regard to capital sentence. We may
\ncome across instances where the case may belong to the rarest of
\nrare category, but in court’s view the objective fairness standards
\nnecessary to be met before death penalty can be awarded have
\nnot been complied with diligently. In State of Maharashtra v.
\nSuresh,<\/a> [(2000) 1 SCC 471]), this court observed:\n<\/p>\n
    “regarding sentence we would have concurred with the
\n    Sessions Court’s view that the extreme penalty of death can be
\n    chosen for such a crime, but as the accused was once
\n    acquitted by the High Court we refrain from imposing that
\n    extreme penalty in spite of the fact that this case is perilously
\n    near the region of `rarest of rare’ cases.”<\/p><\/blockquote>\n
    10. Objective fairness standards as engrained under Bachan
\nSingh (supra) will include opportunity of review of capital sentence,
\ntimely trial, and comparative review. In Bariyar (supra), this court
\nheld:\n<\/p>\n
    “The aggravating and mitigating circumstances have to be
\n    separately identified under a rigorous measure. Bachan Singh
\n    (supra),   when     mandates     principled   precedent   based
\n    sentencing,    compels      careful    scrutiny   of   mitigating
\n    circumstances and aggravating circumstances and then
\n    factoring in a process by which aggravating and mitigating
\n    circumstances appearing from the pool of comparable cases
\n    can be compared.\n<\/p><\/blockquote>\n
    The weight which is accorded by the court to particular
\n    aggravating and mitigating circumstances may vary from case
\n    to case in the name of individualized sentencing, but at the
\n    same time reasons for apportionment of weights shall be
\n    forthcoming. Such a comparison may point out excessiveness
\n    as also will help repel arbitrariness objections in future.\n<\/p><\/blockquote>\n
    A sentencing hearing, comparative review of cases and
\n    similarly aggravating and mitigating circumstances analysis
\n    can only be given a go by if the sentencing court opts for a life
\n    imprisonment.\n<\/p><\/blockquote>\n
    ….\n<\/p><\/blockquote>\n
    To translate the principle (to translate the rarest of rare case)
\n    in sentencing terms, firstly, it may be necessary to establish
\n    general pool of rare capital cases. Once this general pool is
\n    established, a smaller pool of rare cases may have to
\n    established to compare and arrive at a finding of Rarest of rare
\n    case.”\n<\/p><\/blockquote>\n
PRIMACY TO RULES OF PRUDENCE<\/p>\n
    11. In an apparent conflict between a “fair and equitable”
\nsentencing system and an “efficient and deterrent” sentencing
\nphilosophy in the context of Death Penalty, the Bachan Singh
\nverdict, without a doubt, favours the former. It is not to suggest that
\ndeterrent as a theory of punishment is not relevant at all in section
\n302, but that there is more to this question. Capital Sentencing is
\nnot a normal penalty discharging the social function of punishment.
\nIn this particular punishment, there is heavy burden on court to
\nmeet the procedural justice requirements, both emerging from the
\nblack letter law as also conventions. In terms of rule of prudence
\nand from the point of view of principle, a court may choose to give
\nprimacy to life imprisonment over death penalty in cases which are
\nsolely based on circumstantial evidence or where high court has
\ngiven a life imprisonment or acquittal.\n<\/p>\n
    12. At this juncture, it will be pertinent to assess the nature of
\nrarest of rare expression. In light of serious objections to disparity
\nin sentencing by this court flowing out of varied interpretations to
\nthe Rarest of Rare expression, it is clear that the test has to be
\nmore than what a particular judge locates as rarest of rare in his
\npersonal consideration. There has to an objective value to the term
\nrarest of rare, otherwise it will fall foul of Article 14. In such a
\nscenario, a robust approach to arrive at rarest of rare situations will
\ngive primacy to what can be called the consensus approach to the
\ntest. In our tiered court system, an attempt towards deciphering a
\ncommon view as to what can be called to be the rarest of rare,
\nvertically across the trial court, high court and apex court and
\nhorizontally across a bench at any particular level, will introduce
\nsome objectivity to the precedent on death penalty which is
\ncrumbling down under the weight of disparate interpretations.\n<\/p>\n
    13. This is only a rule of prudence and as such there is no
\nstatutory provision to this effect. Minority opinion of Justice
\nThomas in Suthendraraja alias Suthenthira Raja alias Santhan
\nand Ors. v. State [AIR 1999 SC 3700] very aptly capture this point
\nof view:\n<\/p>\n
    “17. The Constitution Bench in Bachan Singh v. State of
\n    Punjab has narrowed down the scope for awarding death
\n    sentence to the extremely restricted radius of “rarest of rare
\n    cases”     in   which   the   alternative   lesser   sentence   of
\n    imprisonment for life is unquestionably foreclosed. In the main
\n    judgment in the present case one of the three Judges found
\n    that sentence of imprisonment for life would be sufficient to
\n    meet the ends of justice as far A-1 Nalini.\n<\/p><\/blockquote>\n
           18. In a case where a Bench of three Judges delivered
\n    judgment in which the opinion of at least one Judge is in favour
\n    of preferring imprisonment for life to death penalty as for any
\n    particular accused, I think it would be a proper premise for the
\n    Bench to review the order of sentence of death in respect of
\n    that accused. Such an approach is consistent with Article 21 of
\n    the Constitution as it helps saving a human life from the
\n    gallows and at the same time putting the guilty accused behind
\n    the bars for life. In my opinion, it would be a sound proposition
\n    to make a precedent that when one of the three Judges
\n    refrains from awarding death penalty to an accused on stated
\n    reasons in preference to the sentence of life imprisonment that
\n    fact can be regarded sufficient to treat the case as not falling
\n    within the narrowed ambit of “rarest of rare cases when the
\n    alternative option is unquestionably foreclosed”.\n<\/p><\/blockquote>\n
    …\n<\/p><\/blockquote>\n
           “I may add as an explanatory note that the reasoning is
\n    not to be understood as a suggestion that a minority opinion in
\n    the judgment can supersede the majority view therein. In the
\n    realm of making a choice between life imprisonment and death
\n    penalty the above consideration is germane when the scope
\n    for awarding death penalty has now shrunk to the narrowest
\n    circle and that too only when the alternative option is
\n    “unquestionably foreclosed”. In a special situation where one
\n    of the three deciding judges held the view that sentence of life
\n    imprisonment is sufficient to meet the ends of justice it is a
\n    very relevant consideration for the Court to finally pronounce
\n    that the prisoner can be saved from death as the lesser option
\n    is not “unquestionably foreclosed” in respect of that prisoner.”<\/p><\/blockquote>\n
    14. Justice Shah (in minority) in Devender Pal Singh v. State,
\nN.C.T. of Delhi and<\/a> anr. [(2002) 5 SCC 234] also heavily relied on
\nthe minority opinion in Suthendraraja (supra) for that matter.\n<\/p>\n
    15. In Licchamadevi v. State of Rajasthan, AIR 1988 SC 1785
\nthis court observed:\n<\/p>\n
    “Where there are two opinions as to the guilt of the accused,
\n    by the two courts, ordinarily the proper sentence would be not
\n    death but imprisonment for life.”<\/p><\/blockquote>\n
    16. The rule that it would not be proper to award the death
\nsentence where the two lower courts disagreed on conviction
\ndeveloped in Licchamadevi v. State of Rajasthan (supra) was
\nfollowed in State of Maharashtra v. Suresh<\/a> [(2000) 1 SCC 471]).
\nReliance has also been placed on the same principle in State of
\nU.P. v. Babu Ram<\/a> [(2000) 4 SCC 515], State of Maharashtra v.
\nDamu<\/a> s\/o Gopinath Shinde and ors. [(2000) 6 SCC 269] and State
\nof Maharashtra v. Bharat Fakira Dhiwar (AIR<\/a> 2002 SC 16). It will
\nalso be in the fitness of this discussion that we mention the
\ndeparture from this rule in State of Rajasthan v. Kheraj Ram<\/a>
\n[(2003) 8 SCC 224], Devender Pal Singh v. State, N.C.T. of Delhi
\nand<\/a> anr. (with Krishna Mochi) (AIR 2003 SC 886) and State of
\nU.P. v. Satish (AIR<\/a> 2005 SC 1000).\n<\/p>\n
    17. It is only apt to mention here that the Law Commission in
\nits 187th Report has recommended that in cases where the
\nSupreme Court Bench hearing a particular case finds that an
\nacquittal by a High Court should be overturned and the accused be
\nsentenced to death, or where it finds that the punishment should
\nbe enhanced from life imprisonment to death, such cases should
\nbe transferred by the Chief Justice to a Bench of at least five
\njudges.\n<\/p>\n
“SWINGING FORTUNES”\n<\/p>\n
    18. Swinging fortunes of the accused on the issue of
\ndetermination of guilt and sentence at the hand of criminal justice
\nsystem is something which is perplexing for us when we speak of
\nfair trial. The situation is accentuated due to the inherent
\nimperfections of the system in terms of delays, mounting cost of
\nlitigation in High Courts and apex court, legal aid and access to
\ncourts and inarticulate information on socio-economic and
\ncriminological context of crimes. In such a context, some of the
\nleading commentators on death penalty hold the view that it is
\ninvariably the marginalized and destitute who suffer the extreme
\npenalty ultimately.\n<\/p>\n
    19. One of the accused in the instant case was acquitted in
\nDecember 2003 by the High Court. It has been more than 8 years
\nsince he was freed in relation to the matter at hand. At this
\njuncture, this becomes a relevant factor. In State of Maharashtra v.
\nManglya Dhavu Kongil, AIR<\/a> 1972 SC 1797, even though the
\nSupreme Court reversed the acquittal by the High Court and
\nrestored the original conviction of the trial court, it did not award
\nthe sentence of death observing that the death sentence had been
\nawarded over four years previously and in the period in between,
\nthe accused had been freed from prison.\n<\/p>\n
   20. In State of Uttar Pradesh v. Sughar Singh and Ors, AIR<\/a>
\n1978 SC 191 this court awarded life imprisonment stating, “having
\nregard to the considerable time that has elapsed since the date of
\nthe occurrence and having regard to the fact that the High Court’s
\ndecision of acquittal in their favour is being set aside by us, the
\nextreme penalty of death ought not to be imposed…”. Similar
\nreasoning was offered by this court in State of Haryana v. Sher
\nSingh and Ors.,<\/a> [(1981) 2 SCC 300], State of U.P. v. Hakim Singh
\nand Ors. (AIR<\/a> 1980 SC 184), Gurnam Kaur v. Bakshish Singh and
\nOrs. (AIR<\/a> 1981 SC 631), State of Uttar Pradesh v. Sahai and Ors.<\/a>
\n[(1982) 1 SCC 352] and State of Uttar Pradesh v. Suresh<\/a> alias
\nChhavan and Ors. [(1981) 3 SCC 635]) (for a rigorous and
\ncomprehensive review of death penalty jurisprudence on this issue
\nand otherwise please see Amnesty International Report titled
\n“Lethal Lottery: The Death Penalty in India – A study of Supreme
\nCourt judgments in death penalty cases 1950-2006”)<\/p>\n
RECENT DECISIONS<\/p>\n
   21. Recently the question as to the imposition of death penalty
\nagain came for consideration before this court in State of Punjab v.
\nManjit Singh & Ors,<\/a> [2009 (8) SCALE 622]. Therein the two
\naccused had been held responsible for the murder of four persons
\nwhich included the husband and the son of the women both of
\nthem were having an illicit relationship with. The deceased had
\nobjected to the said relationship and even physically abused the
\nlady. This is what ultimately incited the accused to murder the
\ndeceased persons in cold blood. The trial court sentenced both the
\naccused to a death sentence. The High court in reference however
\ncommuted the sentence to one for life. Brother Sharma, J. while
\ndeciding the question of sentencing reiterated the law with respect
\nto the imposition of a death penalty, observing:\n<\/p>\n
   “17. The above discussed legal principles have been followed
\n   consistently in numerous judgments of this Court. Whether the
\n   case is one of the rarest of the rare cases is a question which
\n   has to be determined on the facts of each case. It needs to be
\n   reiterated that the choice of the death sentence has to be
\n   made only in the rarest of the rare cases and that where
\n   culpability of the accused has assumed depravity or where the
\n   accused is found to be an ardent criminal and menace to the
\n   society and; where the crime is committed in an organized
\n   manner     and   is   gruesome,    cold-blooded,   heinous   and
\n   atrocious; where innocent and unarmed persons are attacked
\n   and murdered without any provocation.”\n<\/p>\n
   22. The Court accordingly affirmed the judgment of the High
\nCourt on the ground that the accused had only acted out in the
\ngruesome manner after coming to know of the ill treatment meted
\nout by the deceased persons to the women they had feelings for.\n<\/p>\n
   23. We may also place on record that in Rameshbhai
\nChandubhai Rathod v. State of Gujarat<\/a> [2009 (6) SCALE 469], two
\nof the Hon’ble Judges of this Court differed on the question of
\nimposition of death penalty.\n<\/p>\n
FACTS AND SITUATIONS OF THE PRESENT CASE<\/p>\n
    24. In the facts and circumstances of the case, and having
\nregard to the well settled principles of law that we have referred to
\nhereinbefore, we are not persuaded, as has rightly been held by
\nBrother Sharma, that it is not a case where the only sentence to
\nwhich the accused persons herein were entitled to that of death.\n<\/p>\n
    25. In our opinion the trail court had wrongly rejected the fact
\nthat even though the accused had a criminal history, but there had
\nbeen no criminal conviction against the said three accused. It had
\nrejected the said argument on the ground that a conviction might
\nnot be possible in each and every criminal trial. In our opinion
\nunless a person is proven guilty, he should be presumed innocent.\n<\/p>\n
    26. Further nothing has been brought on behalf of the State
\neven after all these years, that the criminal trials that had been
\npending against the accused had resulted in their conviction.
\nUnless the same is shown by documents on records we would
\npresume to the contrary. Presumption of innocence is a human
\nright. The learned trail judge should also have presumed the same
\nagainst all the three accused.\n<\/p>\n
    27. In our opinion the alleged criminal history of the accused
\nhad a major bearing on the imposition of the death sentence by the
\ntrial court on the three accused. That is why in our opinion he had
\nerred in this respect.\n<\/p>\n
    28. It is also to be noted that the trail court has brought on
\nrecord various irrelevant and invidious considerations with respect
\nto sentencing. The trial court observes that death penalty must be
\nawarded in this case so as to motivate police not to indulge in
\nencounter killings and catch the accused alive. Role of ISI agency
\nof Pakistan, black money racketeering in the organized crime
\nsyndicate has also been discussed at great length in the
\nsentencing part of the judgment. These aspects are not only
\nabsolutely irrelevant to sentencing in the instant case but also
\nbears an extremely subjective and loose articulation and
\ndelineation of factors relevant to sentencing in the instant case.\n<\/p>\n
    29. It is worth mentioning that in the present case the High
\nCourt had acquitted both Accused 5, M Zuber Kasam Shaikh and
\nAccused 6, Fazal Mohd Shaikh. It is from that acquittal that
\nappeals for their conviction and sentencing come before us. While
\nimposing the sentence of life on the accussed the Court must have
\nthe judgment of acquittal of the High Court in the back of its mind.
\nIn our considered opinion if at least one of the courts below had
\nacquitted the accused person in respect of the crimes for which
\nthey are to be sentenced, the burden on the prosecution would be
\neven more heavier, which the State in our opinion has not been
\nable to discharge.\n<\/p>\n
    30. If a person is sentenced to imprisonment, even if it be for
\nlife, and subsequently it is found that he was innocent and was
\nwrongly convicted, he can be set free. Of course, the imprisonment
\nthat he has suffered till then cannot be undone and the time he has
\nspent in the prison cannot be given back. Such a reversal is not
\npossible where a person has been wrongly convicted and
\nsentenced to death. The execution of the sentence of death in
\nsuch cases makes miscarriage of justice irrevocable. It is a finality
\nwhich cannot be corrected.\n<\/p>\n
    31. And once Accused 5, M Zuber Kasam Shaikh and Accused
\n6 Fazal Mohd Shaikh have been sentenced to life there remains
\nno question of awarding a death sentence to Accused 7,
\nAzzizuddin Zahiruddin Shaikh who had played no greater a role in
\nthe said incident as Accused 5, M Zuber Kasam Shaikh and
\nAccused 6 Fazal Mohd Shaikh. All the three accused stand on an
\nequal footing and therefore the sentences to be imposed upon
\nthem must not differ. It is for the aforementioned reasons that the
\nappeals filed by the State as regard the imposition of a death
\nSentence deserves to be dismissed.\n<\/p>\n
    32. We must not lose sight of another fact. The High Court has
\nawarded life imprisonment. This Court, save and except in very
\nrare cases, should interfere therewith. One view has been
\nexpressed. Unless it can be objectively held that such a view is
\nillogical, a contrary view should not be taken for the purpose of
\nimposing death penalty.\n<\/p>\n
33. I respectfully agree with the opinion of Brother Sharma, J. that the
\nappeal of the State should be dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohd.Farooq A.G.Chipa Rangari & … vs State Of Maharashtra on 6 August, 2009 Author: S Sinha Bench: S.B. Sinha, Mukundakam Sharma MOHD. FAROOQ ABDUL GAFUR AND ANOTHER v. STATE OF MAHARASHTRA (Criminal Appeal Nos. 85-86 of 2006) AUGUST 6, 2009 [S.B. Sinha and Dr. Mukundakam Sharma, JJ.] 2009 (12) SCR 1093 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-220284","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohd.Farooq A.G.Chipa Rangari & ... vs State Of Maharashtra on 6 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohd-farooq-a-g-chipa-rangari-vs-state-of-maharashtra-on-6-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohd.Farooq A.G.Chipa Rangari & ... vs State Of Maharashtra on 6 August, 2009 - 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