B.P.DHARMADHIKARI, J. - (1.) These Appeals assail the common Judgment and Order dated 31st August 2012 delivered by the Special Judge, MCOC Act, Gr. Mumbai in COC Special Case No.7 of 2008 and other connected matters, whereby the said Court convicted - (a) Arun Gulab Gawali (A-1), Sandip @ Sandy Baliram Gangan (A-9), Shrikrishna @ Babu Tukaram Gurav (A-10), Pratap Tukaram Godse (A-12), Ajit Chandrakant Rane (A-13), Suresh Raghunath Patil (A-15) and Sunil Sadashiv Ghate (A-20) for the offences punishable under Section 3(4) of the MCOC Act, 1999 and sentenced each of them to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5.00 Lac. each, and in default of fine, sentenced them to suffer rigorous imprisonment for three years. (b) Arun Gawali (A-1), Sandip Gangan (A-9), Shrikrishna Gurav (A-10), Pratap Godse (A-12), Ajit Rane (A-13), Suresh Patil (A-15) and Sunil Ghate (A-20) for the offences punishable under Section 3(1)(ii) of the MCOC Act, 1999 and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5.00 Lacs each, and in default thereof, to suffer rigorous imprisonment for three years. (c) Vijay Giri (A-2), Ashokkumar Shivakant Jaiswar (A-3), Narendra @ Kandi @ Lalmani Giri (A-4) and Anil Sherbahadur Giri (A-5) for the offences punishable under Section 3(2) of MCOC Act, 1999 sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.5.00 Lacs each, and in default thereof, to suffer rigorous imprisonment for three years. (d) Vijay Giri (A-2), Ashokkumar Jaiswar (A-3) and Narendra Giri (A-4) for the offence punishable under Section 452 read with Section 34 of Indian Penal Code and sentenced each to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5000/- each, and in default to suffer rigorous imprisonment for one year. (e) Vijay Giri (A-2), Ashokkumar Jaiswar (A-3), Narendra Giri (A-4) and Anil Giri (A-5) for the offence under Section 302 read with Section 34 read with Section 120-B of the Indian Penal Code and Section 3(1)(i) of the MCOC Act, 1999 and sentencing each to suffer rigorous imprisonment for life and to pay a fine of Rs.1.00 Lac each, and in default to suffer rigorous imprisonment for three years. (f) Arun Gawali (A-1), Sahebrao Bhintade (A-6), Sandeep Gangan (A-9), Shrikrishna Gurav (A-10), Pratap Godse (A-12), Ajit Rane (A-13) and Suresh Patil (A-15) for the offence punishable under Section 3(2) of the MCOC Act, 1999 and sentencing to suffer rigorous imprisonment for life and to pay a fine of Rs.7.00 Lacs each, in default to suffer rigorous imprisonment for three years. (g) Arun Gawali (A-1), Sahebrao Bhintade (A-6), Sandeep Gangan (A-9), Shrikrishna Gurav (A-10), Pratap Godse (A-12), Ajit Rane (A-13) and Suresh Patil (A-15) for the offence punishable under Section 3(1) (i) of the MCOC Act, 1999 and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.1.00 Lac each, and in default thereof, to suffer rigorous imprisonment for three years. (h) Vijay Giri (A-2) for the offence punishable under Section 3 read with 25(1-B) of the Arms Act, 1959 and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs.5000/-, and in default, to suffer rigorous imprisonment for six months. There were total 21 accused before it and accused nos. 14,16,17 to 19 were discharged while accused 8,11 and 21 have been acquitted. It is not in dispute that accused no. 7 Bala Surve died during pendency of trial on 17.7.2012.
(2.) Case of prosecution in brief is - (a) The sitting Corporator namely Kamlakar Jamsandekar was shot dead in his house by two unidentified persons on 2nd March 2007 at about 16.45 hours who were hired by associates of Arun Gawali who was the then sitting MLA of Akhil Bhartiya Sena (ABS hereafter) and head of an organized crime syndicate ie ABS. It is the specific case of the prosecution that Accused Nos. 1, 9, 10, 12, 13, 15 and 20 were members of organized crime syndicate headed by Arun Gawali (A-1). Accused Nos. 1 to 7 and 10, 12 and 13 hatched a conspiracy to kill Kamlakar Jamsandekar who was sitting Corporator of Shivsena party. Kamlakar Jamsandekar was shot dead by Vijaykumar Giri (A-2) with a country made hand gun. Accused Nos. 2 to 4 accepted an amount of Rs.30.00 Lakh from Accused Nos. 6 and 7 through Pratap (A-12) and Ajit Rane (A-13) who accepted a supari i.e. a contract to eliminate Kamlakar Jamsandekar due to political rivalry. Accused No.1 assured Accused No.6 and Accused No.7 to get the work done. (b) Said Kamlakar Jamsandekar was declared as elected Corporator and Ajit Rane (A-13) who contested that election held on 1st February,2007 was the nominee of Akhil Bhartiya Sena (ABS) lost it. Ajit Rane (A-13) with a grudge in mind, gave a contract of killing Kamlakar Jamsandekar to Accused Nos. 6 Sahebrao Bhintade and 7 Bala Surve. The prosecution claims that, Accused Nos.6 and 7 went to Arun Gawali (A-1) and gave him 'supari'. Accused Nos.2 to 5 were then engaged as assailants by Accused Nos.12 and 13 through accused 10 Babu @ Shrikrishana. Accused Nos.12 and 13 along with Accused No.6 arranged gun and cartridges from the native place of Surendra Panchal (A-8), and used for killing Kamlakar Jamsandekar. The said gun was recovered from Accused Nos.2 to 5 from Kalbadevi area while attempting to commit dacoity on 26.4.2008 in the jurisdiction of LT Marg Police Station. (c) Deceased Kamlakar Jamsandekar resided at Rumani Manzil, Chawl No.1, Room No.7, Asalfa Village, Mohili Pipe Line, Ghatkopar, Mumbai with his wife Komal, daughter, son and niece Manali Keshav Hire (Complainant). On 2nd March 2007, at about 16.45 hours, the complainant PW-7 Manali was in the kitchen. Kamlakar Jamsandekar was watching TV in the adjacent room. The wife of deceased Kamlakar Jamsandekar namely Komal (PW-1) had already left the house at about 4.00 p.m. The complainant's cousin Sayali was packing her school bag near her father Kamlakar. PW-7 Manali heard noise like that of fire crackers from the adjacent room. She rushed to that room and noticed two unknown persons leaving the said room. Kamlakar Jamsandekar was in the pool of blood and had received the head injury. Manali (PW-7) rushed outside screening to save her uncle. Somebody contacted the police who arrived at the place of incident immediately. Kamlakar Jamsandekar was admitted to Rajawadi Hospital where he was declared dead. (d) The complainant Manali Hire (PW-7) lodged complaint vide Exh.177. Saki Naka Police registered the offence on the basis of the said complaint vide Crime No. 82/2007 under Sections 120-B, 452, 302 read with 34 of the Indian Penal Code read with Sections 3, 25 and 27 of the Arms Act and under Sections 37(1) and 135 of Bombay Police Act. The police from Saki Naka police station visited the spot and recorded the spot panchanama (Exh.165). The photographs of the place of incident were snapped vide Exh.163 collectively. PW-21 P. I. Motiram Kasar conducted the investigation and found a scarbutt (Article-1) lying near the body of the deceased which was detached from the gun used by the assailants. Police arrested Pratap Godse (A-12) and Ajit Rane (A-13) along with Prakash @ Pappu Sawla (A-14), Subhash Upadhyay (A-16), Pankaj Kothari (A-17), Mohd. Saif Mohiddin Faruqui (A-18) and Badrealam Badruddin Faruqhi (A-19). (e) The dead body of deceased Kamlakar was sent for autopsy. Postmortem report was produced at Exh.281 and Ballistic report at Exh.196. The said report reveals that wad of the fired ammunition was found embedded in the brain matter of the deceased as well as the pellets (Article-7 colly.) were recovered from the head of the deceased Kamlakar Jamsandekar indicating that weapon used was 12 bore country made handgun. (f) During the course of investigation statements of witnesses were recorded. Test Identification Parade was arranged on 31st May, 2007 and 1st June, 2007 with help of witnesses Ms. Nita Shah and Mayuresh Tandel vide Exhibits - 470 and 471 collectively. After completion of investigation chargesheet was filed by Sakinaka Police Station against seven accused persons in the Court of Metropolitan Magistrate, Mumbai. Then the case was committed to the Court of Sessions. (g) On 26th April, 2008 the secret information was received by Police Inspector Sandbhor to the effect that some persons were likely to commit dacoity in a jewelry shop at Kalbadevi. The trap was laid and Vijaykumar (A-2), Ashokkumar (A-3), Narendra (A-4) and Anil Giri (A-5) came to be arrested on 26th April, 2008 near Hotel Govindram at about 3.15 p.m. During their personal search, a country made handgun without a scarbutt along with one live cartridge was found in possession of Vijaykumar Giri (A-2) along with Nokia Mobile phone, some currency and driving license. Ashokkumar (A-3) was found in possession of 12 inch knife and some currency, Narendra Giri (A-4) was found in possession of 12 inch knife and some currency and Anil Giri (A-5) was also found in possession of one knife of 11 inch, one mobile and some currency as well as small pouch containing chilly powder. They were arrested under panchanama Exh.311. (h) The statements of some witnesses were recorded. Offence was registered vide Crime No.118 of 2018 at L.T. Marg Police Station under Sections 399 and 402 of the Indian Penal Code and Sections 3, 25, 27 of the Arms Act read with Sections 22 and 51 of Bombay Police Act. Investigation of that case was taken over by DCB CID CIU vide CR No.66 of 2008. (i) Accused Nos. 2 to 5 were also found to be involved in Crime No. 82 of 2007 registered with Sakinaka Police Station. Dinesh Narkar (A-11) along with Shrikrishna Gurav (A- 10) were also arraigned as accused by DCB CID vide Crime No. 69 of 2008. During the course of interrogation of Accused Nos. 2 to 5 it revealed that the country made handgun which was seized from them was used for committing murder of Kamlakar Jamsandekar and thus scarbutt recovered by Sakinaka Police Station on the spot had got detached from the said handgun at that time. Investigation was taken over from Sakinaka Police Station by DCB, CID vide Crime No. 69 of 2008. Thus, Accused Nos.1 to 4, 5, 6 and 7 were arrested by DCB CID on 29th April 2008 in connection with Crime No. 69 of 2008. Accused No.8 was arrested on 5th May 2008 and Sahebrao Bhintade (A-6) was arrested on 15th May 2008. Shrikrishna Gurav (A-10) and Dinesh Narkar (A-11) arrested by DCB, CID in Crime No. 52 of 2008 and were in custody; as per the orders of Special Court, were arrested on 16th May 2008 in connection with Crime No. 69 of 2008. (j) PW-33 Divakar Shelke sent a proposal to the Joint Commissioner of Police for obtaining prior approval (Exh.421) under Section 23(1)(a) of MCOC Act and the said approval was granted on 20th May 2008, to register the offence under MCOC Act. Further investigation was carried out by PW-37 ACP Duraphe. He arrested Arun Gawli (A-1), Sahebrao Bhintade (A- 6) and Sadashiv Surve (A-7) under the provisions of MCOC Act. (k) During the course of investigation, Ashokkumar Jaiswar (A-3), Narendra Giri (A-4), Anil Giri (A-5), Sandeep Gangan (A-9), Shrikrishna Gurav (A-10) and Dinesh Narkar (A- 11) expressed their desire to make confessions and accordingly, their confessional statements were recorded by PW-17 DCP Vinaykumar Chaube, PW-15 Rajendra Dabhade, PW-23 DCB Vijay Singh N. Jadhav, PW-29 DCP Brijesh Singh and PW-18 DCP Dilip Sawant respectively. The statements of witnesses also came to be recorded. Muddemal articles were sent to Forensic Science Laboratory, Kalina for analysis. Test Identification (T.I.) parade was arranged by PW-37 ACP Duraphe with the help of PW-33 Divakar Shelke and Special Executive Officer Mr. Dattaram Kambli (PW-24) on 20th June 2008 at Mumbai Central Prison. T. I. Parade memorandum was accordingly produced vide Exh.301. PW-7 Manali Hire and PW- 12 Motilal Chaudhary are two material witnesses who identified the accused actually giving effect to the crime. (l) The Call Detail Records were collected by PW-37 ACP Duraphe in respect of mobile phones of some of the accused. Similarly PW-34 Prashant Gawde also produced Call Detail Records vide Exhs. 426 and 427 (colly.), refecting communication between Accused Nos. 2, 5, 8, 10, 12 and 13. PW-35 Shekhar Palande, who is a Nodal Officer of Tata Services explained the contents of CDR (Exh.436). (m) Thereafter, proposal for obtaining sanction was submitted by PW-37 ACP Duraphe with PW-36 Mr. Hasan Gafoor, the Commissioner of Police, who granted sanction on 27th July 2008 under section 23(2) of MCOC Act to prosecute the Accused, vide Exh. 439. (n) After completion of the investigation, PW-37 ACP Duraphe filed a chargesheet in the Court of Special Judge under MCOC Act, bearing Special Case No.7 of 2008. Supplementary chargesheets bearing Nos. 16 of 2008 and 3 of 2009 were also filed in the said Court. All these cases were tried simultaneously as per the directions of the Special Court. (o) During the course of investigation, it was revealed that deceased Kamlakar and Sadashiv Surve (A-7) were not in good terms over some landed property. Sadashiv Surve (A-7) hatched conspiracy with Sahebrao Bhintade (A-6). Accused Nos. 6 and 7 approached Pratap Godse (A-12) and Ajit Rane (A- 13), who in turn gave contract to Arun Gawali (A-1) to eliminate Kamlakar Jamsandekar. A meeting was fixed by Pratap Godse (A-12) particularly Sahebrao Bhintade (A-6) with Arun Gawali (A-1). Pratap Godse (A-12) and Ajit Rane (A-13) took Sahebrao Bhintade (A-6) and Sadahiv Surve (A-7) to the office of Akhil Bhartiya Sena, a political party of which Arun Gawali (A-1) was sitting MLA on the ground floor of Geetai Co-op. Hsg. Society Ltd., Dagadi Chawl, Byculla, Mumbai. (p) They met Sandeep @ Sandy (A-9) who is also associate of Arun Gawali (A-1). They informed Sandeep (A-9) about bringing contract money, on which Sandeep (A-9) called Suresh Patil (A-15) on his mobile phone by using the mobile phone of Pratap Godse (A-12). Suresh Patil (A-15) and Sandeep (A-9) took Sahebrao Bhintade (A-6), Sadashiv Surve (A-7), Pratap Godse (A-12) and Ajit Rane (A-13) to the office of Arun Gawali (A-1) on second floor of the building. Sahebrao Bhintade (A-6), Sadashiv Surve (A-7) handed over the amount of Rs.30.00 Lacs to Arun Gawali (A-1) as a contract money to kill Kamlakar Jamsandekar. Arun Gawali (A-1) instructed Pratap Godse (A-12) and Ajit Rane (A-13) to hire new killers in order to avoid involvement of his gang. Pratap (A-12) therefore asked Shrikrishana Gurav (A-10) to find out new shooters to kill Kamlakar Jamsandekar upon which Shrikrishna (A-10) contacted Vijaykumar Giri (A-2) and Narendra Giri (A-4) and discussed with them about the said contract. They both accepted the said contract. (q) Shrikrishana (A-10) then took them i.e. Accused Nos. 2 and 4 to Accused Nos. 12 and 13. They offered them Rs.2.5 Lacs for committing murder of Kamlakar Jamsandekar. Arun Gawali (A-1) asked Suresh Patil (A-15) to pay Rs. 60,000/- to Pratap Godse (A-12) for paying the said amount to the hired killers. Accordingly, Suresh Patil (A-15) gave amount of Rs.60,000/- to Sandeep (A-9) to hand over the same to Pratap (A-12) and Ajit Rane (A-13). Pratap Godse (A-12) and Ajit Rane (A-13) paid Rs.20,000/- as advance amount to Vijaykumar Giri (A-2) and Narendra Giri (A-4). Pratap Godse (A-12) and Ajit Rane (A-13) also handed over 12 bore country made handgun to them which they had purchased from Surendra Panchal (A-8), who had a license for repairing arms and ammunition. (r) As per the case of prosecution, PW-4 Abdul Rehman @ Addu pointed out Kamlakar Jamsandekar to Vijaykumar Giri (A-2), Ashokkumar Jaiswar (A-3), Narendra Giri (A-4) and Anil Giri (A-5). On 2nd March, 2007, at about 15.30 hours or so, Pratap Godse (A-12) informed to Vijaykumar Giri (A-2) telephonically that Kamlakar Jamsandekar was alone in his house, accordingly Vijaykumar (A-2) and Narendra (A-4) entered into the house of Kamlakar. Vijaykumar Giri (A-2) fired at deceased Kamlakar from his country made handgun. Resultantly Kamlakar Jamsandekar died on the spot. The accused persons then filed away. Pratap (A-12) then paid Rs. 30,000/ out of contract money to the killers. The Special Judge framed charges vide Exh.133. Defence of the Accused is of total denial. The learned Special Judge after trial convicted the Accused as detailed supra.
(3.) Shri Gupte, learned senior advocate appearing for accused No.1 contended that no confessions are recorded as against accused No.1. The Trial Court has based conviction only upon confessions of accused Nos.9, 10 and 15. Since there is no evidence of any organized crime against accused Nos.1 or then against accused Nos.9, 10 and 15 and murder of Kamlakar Jamsandekar cannot be viewed as organized crime in which they have participated, their confessions need to be disregarded.;