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 The Judgment of the Court was delivered by

DR. MUKUNDAKAM SHARMA J. 1. These appeals are filed  against  a  common  judgment  and  order  dated  17th  December,  

2003 passed by a Division Bench of the High Court of Judicature  

at  Bombay  in  Confirmation  Case  No.  01  of  2001  and  Criminal  

Appeal Nos. 661 of 2000; 679 of 2000; 753 of 2000 and 758 of  

2000 and are being disposed of by this common judgment.  

2. The prosecution case in brief is as follows: -

One Milind Vaidya is the ex-Mayor of Mumbai. He belongs to  

the  Shiv  Sena,  a  political  party,  active  in  Maharashtra.  On  4th  

March,  1999 at about  9.45 p.m. he alongwith 7-8 workers were  

sitting in an open shed by the side of Mori Road. He was guarded  

by his two body guards, namely, Constable Dinanath Pawar (PW-

2) and Constable Sandeep Eaghmare (PW-3). They were armed  

with a 9 mm pistol and 9 mm carbine with 90 rounds respectively.  

The said shed house is an office of Shiv Sena ‘Shakha’. At about 5  

minutes past 10.00 p.m. a white Maruti  car with a number plate  

MH-03-H-1749  came  from  the  side  of  Mahim  Railway  Station.  

When it reached near the said open shed three persons started  

firing at Milind Vaidya and others who were sitting in the shed. One  

of the assailants was sitting alongside the driver on the front seat  

and the other two were sitting at the back seat. . In the aforesaid

incident three persons died while seven to eight persons, including  

Shri Milind Vaidya, injured.

3.  The said Maruti  car  was being driven allegedly by Abdul  

Hasan (Accused No.8) and Azzizuddin (Accused No.7) was sitting  

by his side being armed with a AK-56 rifle. Mohd. Zuber (Accused  

No.5) and Fazal Mohd. (Accused No.6) were sitting on the rear  

side of  the  said  car  and were armed with  9  mm pistol.  All  the  

aforementioned three persons were said to  have fired at  Milind  

Vaidya and his associates indiscriminately, who were sitting in the  

shed.  

4. Body guard Dinanath Pawar, who examined himself as PW-

2, is said to have fired three rounds from his pistol on the Maruti  

Car.  Other  body  guard  namely  Sandeep  Waghmare  (PW-3),  is  

said to have chased the car upto some distance but did not fire  

any shot,  although armed with  a  carbine.  The incident  of  firing  

lasted for  a  few seconds whereafter  the Maruti  car  sped away.  

Milind Vaidya sustained bullet injuries. Besides six others, namely  

–  Nishchal  Krishna  Chaudhari;  Vinay  Narayan  Akare;  Babu  

Kashinath  Mangela;  Niteen  Narayan Mehar;  Murugan  V Tewar;  

and Vijay Kashinath Akare also sustained bullet injuries. Three of  

his associates, namely – Milind Gunaji Chaudhari, Vilas Gopinath  

Akare and Deepak Sitaram Akare succumbed to their injuries.  

5. All the aforesaid victims were immediately rushed to Hinduja  

Hospital, Mumbai where they were admitted for examination and  

treatment. Post mortem examinations of the three deceased were  

carried out on the next day. They were found to have sustained  

bullet injuries on different parts of their body and lead pieces were  

recovered therefrom.

6. It is worthwhile to mention here that a similar attempt on the  

life  of  Milind  Vaidya  had also been made by unknown persons  

three months prior to the incident in question. At that time he had  

escaped with some injuries. He earlier used to have a body guard  

for his personal safety.  However, after  the said incident he was  

provided with three body guards during day time and two during  

night time. One of the guards was provided with a carbine weapon  

while the other two were provided with 9 mm pistols. Milind Vaidya  

used to sit alongwith his workers at night time in the shed adjoining  

the foot-path of Mori Road, Mahim for the purpose of hearing the  

grievances of the people. At that time he used to be escorted by  

his body-guards.  

7. First Information Report was lodged on 4th March, 1999 at  

Mahim Police Station. The investigation of the case was taken up  

by PI Yashwant Puntambekar (PW-36). However, having regard to  

the gravity of  the offence the Commissioner  of  Police,  Mumbai,  

directed the Senior Police Inspector, CID – Unit IV, to take over  

further  investigation  of  the  case,  pursuant  whereof  Senior  P.I.  

Bagul  took  over  the  investigation.  Thereafter  PI  Bharat  Tambe  

(PW-59) took over the investigation on 06.03.1999. A Maruti car  

was located on 8th March, 1999 in an abandoned condition having  

been found parked in Jain Derasar Lane at Wadala. On inspection  

of the car one empty shell of AK-56 rifle; 2 empties of 9 mm caliber  

pistols and two empties of mouser pistols etc. were found. It was  

suspected that the said car was used in the commission of  the  

aforesaid crime.  

8. After appellant No.1 (Mohd. Farooq) was arrested on 13th  

March,  1999,  the Joint  Commissioner  of  Police (Crime)  granted

permission  to  apply  the  provisions  of  Maharashtra  Control  of  

Organised Crime Ordinance, 1999 to the present case pursuant  

whereto  the  investigation  was  taken  over  by  an  Assistant  

Commissioner of Police namely, Pradeep Sawant (PW-61) from PI  

Bharat Tambe on 26th March, 1999. He was said to have been  

supervising the investigation of the case in his capacity as ACP  

(Detection-I)  and for  effective and extensive investigation of  the  

present case, he formed a team of 13 police officers.

9. In all there were eight accused persons namely, Mohammed  

Farooq  Abdul  Gafur  Chipa  Rangari  (Accused  No.  1),  Aslam  

Mohammed  Kutti  (Accused  No.  2),  Abdul  Kadar  Abdul  Gafoor  

Rizvi (Accused No. 3), Mansoor Hasan Haji Iqbal Pankar (Accused  

No.  4),  Mohd.  Juber  Kasam  Shaikh  alias  Tabrej  alias  Jugnu  

(Accused  No.  5),  Fazal  Mohd.  Shaikh  alias  Manni  Argamutu  

Shetiyar  (Accused  No.  6),  Azzizuddin  Zahiruddin  Shaikh  alias  

Abdul  Sattar  (Accused  No.  7)  and  Abdul  Hasan  Bande  Hasan  

Mistri (Accused No. 8) involved in the case.

10.  Accused  No.1  (Appellant  No.1  herein)  was  arrested  on  

13th March, 1999 whereas Accused No.4 (Appellant No.2 herein)  

was arrested on 21st June, 1999 along with Accused Nos. 2 and 3.  

Accused Nos. 5 and 6 were arrested on 18th June, 1999 by the  

Special Cell of Delhi Police. Accused No. 7 was arrested on 15th  

June, 1999 with AK-56 rifle by Hazariganj Police Station, Lucknow,  

U.P. and Accused No. 8 was arrested on 21st July, 1999.

11.  On  4th  April,  1999  the  Appellant  No.1  took  police  and  

panchas to certain places and STD booths on Mohd.  Ali  Road,  

Masjid Road, near J. J. Marg Police Station at Dongri wherefrom  

he used to contact Faheem. Appellant No.1 made a confessional

statement  on  10th  April,  1999  regarding  his  involvement  in  the  

incident. It was recorded by DCP Parambir Singh (PW-51).  

12. On 25th June, 1999, Mansur Hasan (Accused No. 4) took  

police party to the garage of one Chaggan Vithal where he is said  

to have given the Maruti car used in the commission of the crime  

for repairs. He also showed to the police on 6th July, 1999 an STD  

booth  at  Dongri  wherefrom  he  had  contacted  Faheem  and  

obtained  mobile  phones  as  well  as  a  duplicate  motor  driving  

licence. At the instance of Mohd. Zuber (Accused No. 5) on 18th  

July, 1999, discovery of 9 mm China made pistol, which was found  

kept in a cup-board in a hut behind Mahim Bus Depot was made.  

His  confessional  statement  was  recorded  on  30.07.1999  by  

Ravindra Kadam, DCP (Zone IV) who examined himself as PW-  

39 which was however subsequently retracted.

13. Confessional statement of appellant No.2 was recorded on  

30th July, 1999 by DCP Kadam who examined himself as PW-39.  

However,  appellant  No.2 retracted his  confession when he was  

produced before the Chief Judicial Magistrate.  

14. On 9th August, 1999 Accused No. 5 led the police party to  

a telephone booth at Mahim wherefrom he had contacted Faheem  

and Chhota Shakeel in Karachi, Pakistan. Discovery of AK 56 rifle  

together with 5 cartridges which was found kept in a rexine bag on  

the loft of a hut behind Mahim Bus Depot was made on 17th July,  

1999 at the instance of Azzizuddin (Accused No.7). A finger print  

expert, who was called, found one chance finger print on the said  

rifle. Discovery of two plates from room No.15 on the ground floor  

of  building  No.1  in  Kidvai  Nagar,  Wadala  ,  was  made  at  the  

instance of Abdul Hasan (Accused No.8).

15.  Confession  of  the  aforementioned  six  persons  was  

recorded  by  three  DCPs  namely,  Mr.  Kadam  (PW-39),  Mr.  

Paramvir  Singh  (PW-51)  and  Mr.  Shindre  (PW-60).  Test  

Identification Parade of  accused Nos.  4 to 8 was conducted on  

10th August, 1999 by the Special Executive Officer who examined  

himself as PW-32.  

16. Upon completion of the investigation, a voluminous charge  

sheet was filed before the Designated Court  on 8th September,  

1999. The charges were framed against all the aforesaid accused  

persons under various provisions of the Indian Penal Code, 1860  

(for short ‘the IPC’) and the Arms Act. Considering the gravity of  

the crime and the fact  that all  the eight accused persons being  

members  of  organized  crime  syndicate  of  Chhota  Shakeel,  the  

provisions of Maharashtra Control of Organised Crime Act, 1999  

(hereinafter  referred to  as ‘MCOCA’)  were also invoked.  All  the  

aforesaid accused persons were charged for conspiring, abetting  

and facilitating commission of the aforesaid crime as members of  

the said organized crime syndicate.

17. In the charge sheet Chhota Shakeel and Mohd. Faheem  

have been shown as the absconding accused.  The prosecution  

case proceeded on the premise that all the accused had hatched a  

conspiracy to eliminate Milind Vaidya and with that common object  

in mind they aided each other for causing his murder. They were  

said to be in constant touch with Mohd. Faheem for the purpose of  

taking instructions from him on telephone. They had been provided  

with  arms  and  ammunitions  and  money  by  the  absconding  

accused persons namely, Chhota Shakeel and Mohd. Faheem.

18. Appellants herein are said to be belonging to the gang of  

fugitive criminal  namely Chhota Shakeel who allegedly operates  

his organised crime activities from Karachi, Pakistan. He is also  

aided by another ganglord namely, Mohd. Faheem. Both of them  

are said to belong to the gang of underworld don Dawood Ibrahim.  

19. All the eight accused persons allegedly being members of  

organized crime syndicate of Chhota Shakeel were charged under  

Sections 3(1) r/w 2(e) of MCOCA. They were further charged of  

conspiring, abetting and facilitating commission of aforesaid crime  

as members of the said organized crime syndicate under Sections  

3(2)  of  MCOCA  read  with  Section  120B  of  IPC.  For  their  

agreement to do the abovesaid illegal act they were also charged  

under Section 120-B IPC.  

20. Mohammed Farooq Abdul Gafur Chipa Rangari (Accused  

No.1) was separately charged under Sections 302, 307 read with  

Section 120B/34 and 109 IPC on the ground that he, in pursuance  

of  the  said  conspiracy,  was in  constant  contact  on  mobile  with  

Faheem,  collected  money  and  also  three  mobile  phones  from  

Guddu and delivered the same to Accused Nos. 5 and 6, provided  

driver i.e. Accused No. 8 with the car facilitating commission of the  

crime and thus had the common intention to commit the crime. He  

was  also  charged  under  Sections  201,  34  IPC  for  assisting  

accused Nos. 5, 6 and 7 to cause disappearance of AK-56 rifle  

with intent to screen the offenders from legal punishment.  

21. Aslam Mohammed Kutti  (Accused No. 2) was separately  

charged under Sections 302,  307,  120B r/w 34,  r/w 109 of IPC  

being in contact with Mohd. Faheem, who was in Karachi, Accused  

Nos. 2 and 3 collected weapons from Neeta from Mazgaon and

handed it over to Accused Nos. 4 and 7 for using the same in the  

aforesaid offence. Further, Accused No. 2 purchased three mobile  

phones  and  handed  over  the  same  to  Accused  No.  4  thus,  

facilitated  commission  of  crime  as  a  member  of  conspiracy  in  

furtherance of common intention.  He was further charged under  

Sections 25(1A) and 25(1B) of the Arms Act for possessing jointly  

with Accused No. 3 a rexin bag containing two 9 mm pistols and  

AK-56 rifle in contravention of Section 3 & 7 of the Arms Act.  

22.  Abdul  Kadar  Abdul  Gafoor  Rizvi  (Accused  No.  3)  was  

charged under Sections 25 r/w 3 & 7 of the Arms Act for collecting  

jointly with Accused No.2 a rexin bag from Neeta containing two  

pistols, one rifle for use in the aforesaid offence and handed over  

the same to accused Nos. 4 & 7 and thus committed offence of  

possession of unlicensed and prohibited arms in contraventions of  

Sections  3  &  7  of  the  Arms  Act.  He  was  also  charged  under  

Sections 302, 307 of IPC r/w 120B, 34 & 109 of IPC for delivering  

weapons to accused Nos. 4 and 7 which were later used in the  

commission of the aforesaid offence thus, facilitated commission of  

offence as a member of conspiracy and in furtherance of common  

intention. He was further charged under Sections 302, 307 r/w 34,  

120B, and 109 of IPC for purchasing three mobile phones along  

with  Accused  No.  2  from  Hira  Panna  Market  to  facilitate  the  

aforesaid crime.

23.  Mansoor  Hasan  Haji  Iqbal  Pankar  (Accused  No.4)  was  

charged  under  Sections  411  r/w  34  and  120-B  of  IPC  for  

conspiring,  as  per  the  directions of  Faheem,  in  collecting  white  

coloured  Maruti  800  Car  from  Phila  House,  Mumbai  and  the  

aforesaid stolen car was used by accused Nos. 4 and 7 and thus

was a member of conspiracy and committed offence of dishonestly  

receiving stolen property. He was further charged under Sections  

302, 307 r/w 34, 120-B and 109 of IPC for handing over the stolen  

car to Accused No. 8 which was actually used in the aforesaid  

offence.  He was further  charged under Section 201 r/w 34 and  

120-B of IPC for taking over charge of two mobile phones from  

accused  Nos.  5  and  7  after  the  aforesaid  offence  and  for  

concealing the same in his house.  

24. Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu, Fazal  

Mohd.  Shaikh  alias  Manni  Argamutu  Shetiyar,  Azzizuddin  

Zahiruddin  Shaikh  alias  Abdul  Sattar  and  Abdul  Hasan  Bande  

Hasan  Mistri  (Accused  Nos.  5  to  8)  respectively  were  charged  

under Sections 25 r/w 3 & 7 of the Arms Act for traveling in the  

stolen  Maruti  Car,  carrying  unlicensed  pistols  and  prohibited  

firearms i.e. A-56 rifle in furtherance of conspiracy and common  

intention  with  accused  Nos.  5  to  7.  They were  further  charged  

under Sections 25 (1A), 25(1B) r/w 3, 7 and 35 of the Arms Act for  

having joint possession/control of the said vehicle i.e. the stolen  

Maruti car which was used in the aforesaid crime and were aware  

of existence of fire arms in the vehicle.

25. Accused Nos. 5 to 7 were charged under Sections 3 (1) (i)  

of MCOCA read with Sections 302 & 120B of IPC for committing  

the offence of organized crime on behalf of the syndicate with the  

object  of  gaining  advantage  of  syndicate  and  promoting  

insurgency. They were also charged under Sections 3 (1) (ii)  of  

MCOCA read  with  Sections  307  &  120B  of  IPC  for  firing  with  

weapons, causing injuries and endangering the life of 7 persons.  

They were further charged under Sections 302, 307 r/w 34 and

120-B of IPC for being taken in a stolen Maruti Car by Accused  

No. 8 at the spot and for firing with their pistols and rifles on the  

victims.  They were charged under  Sections 25(1A),  25(1B)  and  

27(3) of the Arms Act for possessing fire arms in contravention of  

Section 3 & 7 of  the Arms Act.  They were also charged under  

Section 201 r/w 34 and 120-B of IPC for hiding their respective fire  

arms knowing that they were used in commission of offence thus,  

attempted disappearance with an intention to screen the offender.  

26.  Abdul  Hasan Bande Hasan Mistri  (Accused No.  8)  was  

separately charged under Sections 302, 307 r/w 34 and 120-B of  

IPC for taking Accused Nos. 5 to 7 in Maruti car in furtherance of  

conspiracy and common intention thereby facilitating the crime of  

murder  and fatal  injuries.  He was also  charged under  Sections  

424, 414 r/w 34 and 120-B of IPC for  dishonestly receiving the  

stolen  Maruti  Car  and  changing  the  number  plate  and  thus  

assisting  in  concealment  of  stolen  property  in  furtherance  of  

conspiracy and common intention. He was further charged under  

Section 212 of IPC for harbouring Accused Nos. 5 to 7 in stolen  

Maruti  Car  immediately  after  the  aforesaid  offence  with  the  

intention of screening them.  

27.  In  support  of  its  case  the  prosecution  examined  64  

witnesses out of them 5 were eye witnesses including the injured  

persons. Six STD/ISD booth owners were also examined to prove  

that  some of  the  accused had made telephone calls  from their  

booths  to  Karachi,  Pakistan.  4  witnesses  were  examined  to  

depose about subsidiary circumstances. 14 witnesses were panch  

witnesses.  4 medical  officers were examined to prove the post-

mortem reports  as well  as the certificates  of  injuries.  25 Police

Officers including two investigating officers were also examined. 5  

other witnesses were examined on different points. A large number  

of documents were produced by the prosecution.  

28.  Sabiul  Hasan (PW-15) was the owner of  the Maruti  car  

bearing registration No. MH-03-H-1759 which was stolen. He had  

lodged  a  complaint  to  that  effect  on  30th  January,  1999.  The  

evidence of PW-20, who is a panch witness, established recovery  

of  the  car  on 25th  June,  1999.  Accused No.  4  led  police  to  a  

garage situated opposite to Chhagan Mitha Petrol Pump where the  

car was given for repair.  Manager of petrol pump PW-17 stated  

that on 5th February, 1999 Accused No. 4 had brought one white  

car bearing No. BLD 1949 for certain repairs and servicing. He did  

not take back the car immediately, although he was informed that  

the repairing and servicing had been completed.  He visited the  

petrol pump later on. A card was prepared by him making certain  

noting regarding the number of the car, the repairs done to it, the  

name of the customer and his telephone number etc. A note was  

also made in the card stating “Do not take again for servicing”. He,  

however,  did  not  know  Accused  No.  4  earlier.  He  saw  and  

identified  Accused  No.4  for  the  first  time  in  the  court  on  31st  

March,  2000.  However,  the identification of  Accused No.  4 was  

found to be doubtful.  

29.  The  Special  Court,  Mumbai  by  its  judgment  and  order  

dated 05.09.2000 acquitted Accused Nos. 2 and 3 and recorded  

judgment and order of conviction and sentence against the other  

six accused which are as under:-  

“I (a) The Accused No. 1 Mohammed Farooq Chipa Rangari is  

found  guilty  and  convicted  of  an  offence  punishable  under

Section 3(2) of the Maharashtra Control of Organised Crime  

Act, 1999 (hereinafter referred as “M.C.O.C. Act, 99”) read with  

section  120-B  I.P.C.  and  is  sentenced  to  Rigorous  

Imprisonment for ten years and to pay fine in the sum of Rs.5  

lakhs. In default of payment of fine he shall undergo R.I. for  

three years.  

(b) The Accused No.1 is also found guilty and convicted of  

an offence punishable under section 3(4) of M.C.O.C. Act 99  

read with section 120-B I.P.C. and is sentenced to R.I. for ten  

years  and  shall  also  pay  fine  in  the  sum of  Rs.5  lakhs.  In  

default of payment he shall under go R.I. for three years.

(c) The Accused No.1 is further held guilty and convicted  

for an offence punishable under Section 212 read with section  

52-A  read  with  section  120-B  I.P.C.  and  is  sentenced  to  

Rigorous Imprisonment for five years and shall also pay a fine  

in  sum of  Rs.5000/-.  In  default  of  payment  of  fine  he shall  

undergo R.I. for six months.

IV. (a) The Accused No. 4 Mansur Hasan Haji Iqbal Pankar is  

found  guilty  and  convicted  of  an  offence  punishable  under  

Section 3(2) of M.C.O.C. Act 99 read with Section 120-B I.P.C.  

and is sentenced to R.I. for ten years and to pay fine in the  

sum of Rs.5 lakhs. In the default of payment of fine he shall  

undergo R.I. for three years.  

(b) The Accused No.4 is further held guilty and convicted  

of an offence punishable under Section 3(4) of M.C.O.C. Act  

99 read with Section 120-B I.P.C. and is sentenced to R.I. for  

ten years and shall pay fine in sum of Rs.5 lakhs. In default of  

payment of which he shall undergo R.I. for three years.

(c) The Accused No.4 is also found guilty and convicted of  

an offence punishable under  Section 411 read with  Section  

120-B I.P.C. and is sentenced to suffer R.I. for two years and  

shall pay a fine in sum of Rs.5000/-. In default of payment of  

fine he shall undergo R.I. for six months.

V. (a) The  Accused  No.  5  Mohd.  Zuber  

Kasam Shaikh  is  found  guilty  and  convicted  for  an  offence  

punishable under Section 302 I.P.C. read with Section 3(1)(i)  

of M.C.O.C. Act 99 read further with Section 120-B further read  

with Section 34 I.P.C. for causing murder of:-

(i) Shri Milind Gunaji Chaudhary, aged 34 years.

(ii) Shri Vilas Gopinath Akre, aged 28 years

(iii) Shri Deepak Sitaram Akre, aged 30 years

And is hereby sentenced to death. He shall be hanged  

by neck till he dies.

(b)  (i)  The  Accused  No.  5  is  also  found  guilty  and  is  

convicted for an offence punishable under Section 27(3) read  

with  Section  7  of  the  The  Arms  Act  1959  and  is  hereby  

sentenced to death. He shall be hanged by neck till he dies.

(ii) The Accused No. 5 is also found guilty and convicted  

of  an  offence  punishable  under  Section  25(1-A)  read  with  

Section 7 of the Arms Act and is sentenced to R.I. for ten years  

and payment of fine of Rs.5000/-. In default of payment of fine  

he shall undergo R.I. for one year.

(c) The Accused No.5 is also found guilty and convicted  

for an offence punishable under Section 307 I.P.C. read with  

Section 3(i) (ii) of the M.C.O.C. Act 99 read further with Section

34 and Section 120-B I.P.C. for attempted murder of Ex mayor  

and sitting  corporator  of  Bombay municipal  corporation  Shri  

Milind Dattaram Vaidye,  aged 35 years  and is sentenced to  

R.I.  for  life  and payment of  fine of  Rs.5 lakhs.  In  default  of  

payment of fine he shall undergo R.I. for three years.  

(d) The Accused No. 5 is also found guilty and convicted  

for an offence punishable under Section 326 read with section  

120-B I.P.C. read with Section 34 I.P.C. and further read with  

Section 3(i) (ii) M.C.O.C. Act 99 for causing grievous hurt to-

(i) Shri Nischal Krishan Choudhari aged 27 years

(ii) Shri Vinay Narayan Akre

and is hereby sentenced to R.I. for ten years and payment of  

fine in the sum of Rs. 5 lakhs. In default of payment of fine he  

shall undergo R.I. for three years.  

(e) The Accused No. 5 is also convicted for an offence  

punishable under section 324 I.P.C. read with section 34 and  

120-B I.P.C. read further with section 3(1)(ii) of M.C.O.C. Act  

99 and is sentenced to suffer R.I. for five years and shall pay  

fine in the sum of Rs.5 lakhs for causing fire arm injuries by  

dangerous weapons with pistols and AK-56 rifle to-

(i) Shri Babu Kashinath Mangela, aged 40 years.

(ii) Shri Niteen Narayan, aged 43 years.

(iii) Shri Murguan V. Tewar, aged 26 years

In default of payment of fine he shall undergo R.I. for one year.  

(f)  The  Accused  No.5  is  also  convicted  of  an  offence  

punishable  under  section  3(2)  M.C.O.C.  Act  99  read  with  

Section 120-B I.P.C. and is sentenced to suffer R.I. for life and

to pay fine in the sum of Rs.5 lakhs. In default of payment of  

fine he shall undergo R.I. for three years.  

(g)  The  Accused  No.5  is  also  convicted  of  an  offence  

punishable  under  section  3(4)  M.C.O.C.  Act  99  read  with  

section 120-B I.P.C. and is sentenced to suffer R.I. for life and  

also pay fine in the sum of Rs.5 lakhs. In default of payment of  

fine he shall undergo R.I. for three years.  

VI. The Accused No.6 Fazal Mohd. Shaikh @ Manni Argamutu  

Shetiyar is found guilty and-

(a)  Convicted for  an offence punishable under  Section  

302 I.P.C. read with section 3(1)(i) of M.C.O.C. Act 99  

read with Section 34 and section 120-B I.P.C. for causing  

murder of-

(i) Shri Milind Gunaji Chaudhari, aged 34 years

(ii) Shri Vilas Gopinath Akre, aged 28 years

(iii) Shri Deepak Sitaram Akre, aged 30 years.

And is hereby sentenced to death. He shall be hanged  

by neck till he dies.  

(b) (i) Convicted for an offence punishable under section 27(3)  

read with section 7 of the The Arms Act 1959 read with section  

120-B I.P.C. and is hereby sentenced to death.  He shall  be  

hanged by neck till he dies.

(iii)  also  convicted  for  an  offence  punishable  under  

section 25(1-A) of the The Arms Act and is sentenced to  

R.I.  for  ten  years  and  payment  of  fine  in  the  sum of  

Rs.5000/-, and in default of payment of fine to undergo  

further R.I. for one year.

(c) Convicted for an offence punishable under Section 307  

I.P.C. read with Section 3(1)(ii)  of the M.C.O.C. Act 99 read  

further with Section 34 and 120-B I.P.C. for attempted murder  

of  Ex-Mayor  and  sitting  Corporator  of  Bombay  Municipal  

Corporation Shri  Milind Dattaram Vaidya aged 35 years and  

sentenced to R.I. for life and shall pay fine in the sum of Rs.5  

lakhs and in default of payment of fine to undergo further R.I.  

for three years.  

(d) Convicted for an offence punishable under Section 3(2) of  

the  M.C.O.C.  Act  99  read  with  section  120-B  I.P.C.  for  

facilitating the organized crime and is sentenced to suffer R.I.  

for life and to pay fine in the sum of Rs.5 lakhs and in default of  

payment of fine to undergo further R.I. for three years.  

(e)  Convicted  for  an  offence  punishable  under  Section  326  

read with section 34 and section 120-B I.P.C. further read with  

Section 3(i)(ii) of the M.C.O.C. Act 99 for causing grievous hurt  

to-

(i) Shri Nischal Krishna Choudhari aged 27 years

(ii) Shri Vinay Narayan Akre, aged 31 years.  

and is sentenced to undergo R.I. for ten years and payment of  

fine in the sum of Rs.5 lakhs and in default of payment of fine  

to undergo R.I. for two years.  

(f) also convicted for an offence punishable under Section 324  

I.P.C. read with Section 3(1)(ii) of M.C.O.C. Act 99 read further  

with Section 34 and 120-B I.P.C. for causing fire arm injuries to  

persons namely-

(i) Shri Babu Kashinath Mangela, Aged 40 years.

(ii) Shri Niteen Narayan, aged 43 years

(iii) Shri Murguan V. Tewar, aged 26 years.

and is hereby sentenced to R.I. for five years and shall pay fine  

in the sum of Rs.5 lakhs and in default of payment of fine to  

undergo R.I. for one year.  

VII. The Accused No. 7 Azizuddin Zahiruddin Shaikh @ Abdul  

Sattar is found guilty and-  

(a)  Convicted  for  an  offence  punishable  under  Section  

302  read  with  section  3(1)(i)  of  the  M.C.O.C.  Act  99  read  

further with section 34 and 120-B I.P.C. for causing murder of-

(i) Shri Milind Gunaji Chaudhari, aged 34 years.  

(ii) Shri Vilas Gopinath Akre, aged 28 years

(iii) Shri Deepak Sitaram Akre, aged 30 years.

and is  hereby  sentenced to  death.  Accused No.  7  shall  be  

hanged by neck till he dies.

(b) (i) Convicted for an offence punishable under section 27(3)  

read with Section 7 of the The Arms Act, 1959 and is hereby  

sentenced to death. He shall be hanged by neck till he dies.  

(ii) Also convicted under section 25(1-A) of the The Arms  

Act  for  possession  of  AK-56  rifle  prohibited  arms  and  is  

sentenced to suffer R.I. for ten years and payment of fine in  

the  sum of  Rs.5,000/-  and  in  default  of  payment  of  fine  to  

undergo R.I. for one year.  

(c) Convicted of an offence punishable under Section 307  

I.P.C. read with section 3(i) (ii) of M.C.O.C. Act 99 further read  

with section 34 and 120-B I.P.C. for attempted murder of Ex-

Mayor and sitting Corporator of Bombay Municipal Corporation  

Shri Milind Dattaram Vaidya, aged 35 years and is sentenced  

to undergo R.I. for life and payment of fine in the sum of Rs.5  

lakhs and in default of payment of fine to undergo R.I. for three  

years.  

(d)  Convicted  for  an  offence  punishable  under  Section  

326 read with section 120-B I.P.C. further read with Section  

3(i) (ii) of M.C.O.C. Act 99 for causing grievous hurt to--

(i) Shri Nischal Krishan Choudhari, aged 27 years

(ii) Shri Vinay Narayan Akre, aged 31 years.

and is sentenced to suffer R.I. for ten years and payment of  

fine in the sum of Rs.5 lakhs and in default of payment of fine  

to undergo further R.I. for two years.  

(e) Convicted for an offence punishable under section 324  

I.P.C.  read with  section 3(1)(ii)  of  M.C.O.C. Act read further  

with section 34 and 120-B I.P.C. for causing fire arms injuries  

to persons namely,

(i) Shri Babu Kashinath Mangela, Aged 40 years

(ii) Shri Niteen Narayan Akre, aged 43 years

(iii) Shri Murguan V. Tewar, aged 26 years

and is hereby sentenced to R.I. for five years and shall  

pay fine in the sum of Rs.5 lakhs. In default of payment  

of fine he shall undergo R.I. for one year.

(f) Convicted of an offence punishable under Section 3(4) of  

the  M.C.O.C.  Act  read  with  Section  120-B  I.P.C.  and  is  

sentenced to R.I. for life and fine in the sum of Rs.5 lakh and in

default  of  payment  of  fine  to  further  undergo  R.I.  for  three  

years.  

VIII. The Accused No. 8 Abul Bande Hansan Mistry is found  

guilt and --

(a) Convicted of an offence punishable under Section 302 read  

with section 34 I.P.C. read with Section 3(1)(i) of M.C.O.C. Act  

99 read further with section 109 read with section 120-B I.P.C.  

and is sentenced to undergo R.I. for life and shall pay fine in  

the  sum of  Rs.1  lakh  and  in  default  of  payment  of  fine  to  

undergo R.I. for three years.

(b)  Convicted  of  an  offence  punishable  under  Section  307  

I.P.C. read with section 3(1)(ii) of M.C.O.C. Act 99 read with  

Section 34, 109 and 120-B I.P.C. for attempted murder of Shri  

Milind Dattaram Vaidya,  aged 35 years  and is sentenced to  

R.I. for life and shall pay fine in the sum of Rs.5 lakhs and in  

default  of  payment  of  fine  to  undergo  further  R.I.  for  three  

years.  

(c) Convicted under section 326 I.P.C. read with section  

3(1)(ii)  of  M.C.O.C.  Act  99  read  with  section  34  I.P.C.  for  

causing grievous hurt to -  

(i) Shri Nischal Krishna Choudhari, aged 27 years.

(ii) Shri Vinay Narayan, aged 31 years  

and  is  sentenced  to  undergo  R.I.  for  ten  years  and  

payment of fine in the sum of Rs.5 lakhs and in default of  

payment of fine to undergo further R.I. for two years.  

(d)  Convicted  also  for  an  offence  punishable  under  

Section 324 read with  (34,  109) and 120-B I.P.C.  read with

section 3(1)(ii) of M.C.O.C. Act 99 for causing fire arm injuries  

caused to--

(i) Shri Babu Kashinath Mangela, Aged 40 years,

(ii) Shri Niteen Narayan, aged 43 years

(iii) Shri Murguan V. Tewar, aged 26 years.

and is sentenced to R.I. for five years and fine in the sum of  

Rs.5 lakhs and in default of payment of fine to suffer R.I. for six  

months.

(e) Convicted for an offence punishable under section 201  

I.P.C. read with section 120-B I.P.C. and is sentenced to R.I.  

for five years and shall pay fine in the sum of Rs.5,000/- and in  

default  of  payment  of  fine  to  undergo  further  R.I.  for  six  

months.

(f) Convicted for an offence punishable under Section 424  

IPC and is sentenced to R.I. for two years.  

(g) Convicted for an offence punishable under section 414  

I.P.C. and is sentenced to suffer R.I. for three years.”

As regards fine, the Special Judge directed :-

“Thirty percent of the amount of total fine if recovered shall be  

paid  towards  compensation  payable  under  section  357  Cr.  

P.C. to family members of three victims in 1/3 share for each  

victim who were died. This is without prejudice to their rights to  

recover compensation independently at Civil Law.  

Twenty percent of the amount of total fine if recovered be  

paid as compensation payable under section 357 Cr. P.C. to  

each of the of the injured, Viz.

(i) Shri Milind Dataram Vaidya

(ii) Shri Nischal Krishna Choudhari

(iii) Shri Vinay Naryan Akre

in  equal  shares.  This  is  without  prejudice  to  their  right  to  

recover compensation at Civil law.  

Fifty  percent  of  the  amount  of  total  fine  if  recovered  

appropriate  by  State  of  Maharahstra  towards  defrayal  of  

costs/expenses of the prosecution properly incurred.”  

30.  Feeling  aggrieved  by  the  aforesaid  judgment  and  order  

dated 05.09.2000 passed by the Special Court, Mumbai Accused  

No. 7 filed Criminal Appeal No. 661 of 2000; Accused Nos. 1, 5  

and  6  preferred  a  common  appeal  which  was  registered  as  

Criminal  Appeal  No.679  of  2000;  Accused  No.  8  filed  Criminal  

Appeal No. 753 of 2000; and Accused No. 4 filed Criminal Appeal  

No.  758  of  2000  in  the  High  Court  of  Bombay.  The  State  of  

Maharashtra  did  not  prefer  any  appeal  against  the  aforesaid  

judgment and order of acquittal of Accused Nos. 2 and 3. So far as  

the  death  sentence  imposed  by  the  Special  Judge  against  

Accused Nos. 5, 6 and 7 is concerned, the matter was referred to  

the  High  Court  for  confirmation  which  was  registered  as  

Confirmation Case No. 1 of 2001.  

31.  The  Division  Bench  of  the  High  Court  by  its  impugned  

judgment and order dated 17.12.2003 confirmed the conviction of  

Accused No. 1 under Section 3(2) of MCOCA read with Section  

120-B IPC and under Section 3(4) of MCOCA read with Section  

120-B IPC and acquitted him of the charges under Section 212  

read with Section 52A and Section 120-B IPC. The appeal filed by

Accused No. 4 was dismissed and his conviction and sentence on  

all  counts were confirmed. So far as Accused Nos. 5 and 6 are  

concerned, they have been acquitted of all the charges by the High  

Court. Though conviction of Accused No. 7 was confirmed under  

Sections 302 read with Section 34, 120-B of IPC read with Section  

3(1)(i) of MCOCA, his death sentence was substituted by rigorous  

imprisonment  for  life  plus  a  fine  of  Rs.24,000/-  and  in  default  

thereof,  simple  imprisonment  of  one  year  was  imposed.  His  

conviction  under  Sections  304 read with  Section  34,  120B IPC  

read with Section 3 (1) (ii) MCOCA; 326 read with Section 120B  

IPC read with 3 (1) (ii) MCOCA; 324 read with Section 34, 120B  

IPC  read  with  Section  3  (1)  (ii)  MCOCA  and  Section  3(4)  of  

MCOCA read with Section 120B IPC was maintained. Conviction  

and sentence of Accused No. 8 was also maintained.  

32.  Aggrieved  by  the  aforesaid  judgment  and  order  dated  

17.12.2003  passed  by  the  High  Court  of  Bombay  Mohammed  

Farooq  Abdul  Gafur  Chipa  Rangari  (Accused  No.1),  Mansoor  

Hasan Haji Iqbal Pankar (Accused No. 4) and Abdul Hasan Bande  

Hasan Mistri (Accused No. 8) have filed Criminal Appeal No. 85 of  

2006, Criminal Appeal No. 86 of 2006 and Criminal Appeal No. 87  

of  2006  respectively.  Azzizuddin  Zahiruddin  Shaikh  alias  Abdul  

Sattar (Accused No.7) had preferred a special leave petition being  

SLP (Crl.) No. 1469 of 2004 which stood dismissed on 8th April,  

2004.  

33. The State of Maharashtra has also filed Criminal Appeal  

Nos. 91-94 of 2006 against the acquittal of Accused No.1 of the  

charges under Section 212 read with Section 52 (A) and Section  

120-B IPC; acquittal of accused Nos. 5 and 6 of all the offences

and substitution of sentence from death to life of Accused No. 7 by  

the High Court.  

34. Accused Nos. 5 and 6 were not being represented before  

us. We, therefore, requested Dr. Rajeev B. Masodkar, Advocate,  

to represent them as amicus curiae. It  is necessary to place on  

record that two of the aforesaid accused have jumped the bail and  

are absconding.  

35. Having dealt with the facts leading to the initiation of the  

criminal proceedings and having given a detailed account of the  

trial  held against  all  the accused persons,  we have set  out  the  

nature of the orders of convictions and sentences passed by the  

trial  court  as also the orders  passed by the High Court  on the  

appeals filed before it by the accused persons. Accused Nos. 1, 4  

and 8 as well as the State of Maharashtra filed cross appeal in this  

Court.  All  the  aforesaid  appeals  were  listed  before  us  for  final  

hearing upon which we heard the learned counsel appearing for  

the respective parties extensively. Some of the submissions of the  

learned counsel appearing for the parties were overlapping and,  

therefore,  we are  going  to  set  out  the  said  submissions  of  the  

learned counsel broadly. We, however, deal with the appeals filed  

by the accused persons in respect of each of the accused and the  

State separately for the purpose of convenience.  

36. The broad submissions of the counsel appearing for the  

accused  persons  mainly  center  around  the  confessional  

statements  of  Accused  Nos.  8  and  4  having  been  retracted  

subsequently, the same are inadmissible not only against the co-

accused but also against the accused who allegedly have made  

some  confessional  statements  particularly  with  regard  to  the

making of such confessional statements which fact was not put in  

their examination under Section 313 of Criminal Procedure Code,  

1973 (for short ‘CrPC’).  

37.  It  was  submitted  that  no  credence  should  have  been  

placed on the Test Identification Parade (for short  ‘TIP’)  held in  

respect of Accused Nos. 4, 5, 6, 7 and Accused No. 8 particularly  

when they were arrested on different dates i.e. Accused No. 4 was  

arrested on 21.06.1999, Accused Nos. 5 and 6 were arrested on  

18.06.1999,  Accused  No.  7  was  arrested  on  15.06.1999  and  

Accused  No.  8  was  arrested  on  21.07.1999.  TIP  was  held  on  

10.08.1999  after  inordinate  delay  in  as  much  as  in  case  of  

Accused No. 4 it was held after 50 days, in case of Accused Nos.  

5 and 6 it was held after 53 days, in case of Accused No. 7 it was  

held after 55 days and in case of Accused No. 8 it was held after  

19 days.  Therefore,  in that  view of the matter the said TIP has  

been  rendered  inadmissible  in  evidence  and  should  not  and  

cannot be relied upon for the purpose of convicting the accused  

persons.  

38.  Another  submission  which  was  very  forcefully  placed  

before  us  was  that  the  confessional  statements  cannot  be  the  

basis of conviction in the present cases as the said confessional  

statements which were proved in the instant case did not contain  

the  mandatory  certificate  as  mentioned  under  Rule  15  of  

Maharashtra  Control  of  Organized Crime Rules,  1999 (for  short  

‘the  MCOC  Rules’).  Rule  15  of  the  MCOC  Rules  requires  a  

certificate to be attached with the confessional statement but the  

same apparently is  not  a  part  of  the record in  the instant  case  

thereby  rendering  the  confessional  statement  as  invalid.  The

mandatory certificate contained the warning which are admittedly  

not proved in the trial and the same having been not proved, all the  

confessional statements lost its sanctity and, therefore, could not  

have been the basis of any conviction.  

39. It was submitted that the basic ingredients for a conviction  

under  MCOCA were  not  made out  in  any of  the  cases.  It  was  

further  submitted  that  there  are  a  number  of  major  and  vital  

contradictions in the evidence of the witnesses produced on behalf  

of the prosecution in support of its case. It was pointed out that the  

incident admittedly happened during the night time and it was a  

case of sudden happening as alleged by the prosecution itself and,  

therefore, none of the accused could have been identified in such  

a  short  span  of  about  few  seconds.  Since  the  identity  of  the  

accused persons could not be established and there are a number  

of vital contradictions in the evidence of the prosecution witnesses,  

the accused persons are liable to be acquitted.  

40.  The  next  contention  was  that  the  recovery  of  weapon  

alleged to have been used by Accused No. 7 was made from an  

open space i.e. the hutment roof of a house in a slum hutment,  

which was accessible  to all  for  which Accused No. 7 could not  

have  been  held  responsible  as  the  weapon  was  not  in  his  

exclusive possession. It was submitted that there cannot be any  

conviction and sentence under the provisions of Arms Act in as  

much  as  the  sanction  order  which  was  issued  was  illegal  and  

vitiated and the recovery of the weapons allegedly at the instance  

of the accused persons are also not in accordance with law rather  

in violation of the same.

41.  The  learned  counsel  appearing  for  the  State  of  

Maharashta,  however,  refuted  all  the  aforesaid  contentions  and  

submissions and submitted that all the ingredients of the offences  

alleged against each of the accused were fully established in the  

present  case and,  therefore,  the  only  punishment  which  should  

have been given to the accused persons is the capital punishment  

for  carrying  out  the  daredevil  attack  and  for  killing  innocent  

persons. It was submitted that there are substantive and clinching  

evidence available on record against all the accused persons and,  

therefore, the High Court was not justified in converting the capital  

punishment  awarded  to  the  accused-appellants  i.e.,  Azzizuddin  

Zahiruddin Shaikh alias Abdul Sattar (Accused No. 7) to that of life  

imprisonment,  acquitting Mohammed Farooq Abdul  Gafur  Chipa  

Rangari (Accused No. 1) of the charges under Section 212 read  

with Section 52(A) and Section 120-B IPC and acquitting Accused  

Nos. 5 and 6.  

42. It was submitted by the learned counsel appearing for the  

State that necessary warnings were given to the accused persons  

before recording their confessional statements but part one of the  

said  statements  which  contained  warning  was  misplaced  and,  

therefore,  the  same  could  not  be  brought  on  record.  The  said  

confessional  statements  were  recorded  in  accordance  with  the  

required formalities and after giving proper warning to the accused  

person which fact is proved by the police officer recording such  

statements and also by the stenographers who recorded the said  

statements.  It  was  further  submitted  that  there  could  be  some  

minor  irregularities  while  recording the aforesaid statements but  

the  same  would  not  in  any  manner  vitiate  the  trial.  Besides,  

reference was made by the counsel appearing for the Government

of Maharashtra to Section 15 of MCOCA and placing reliance on  

the  same  he  submitted  that  the  said  section  contained  a  non-

obstante  clause  and,  therefore,  it  cannot  be  held  that  the  

confessional  statements  were  not  recorded  in  accordance  with  

law.  

43. Learned counsel appearing for the State pointed out that  

the  submissions  of  the  learned  counsel  appearing  for  the  

appellants that the sanction order is vitiated is not borne out from  

the  record  as  the  sanction  order  passed  by  the  competent  

authority  was  a  detailed  order  and  not  a  mechanical  order  as  

sought to be suggested by the accused persons. He submitted that  

the  weapons  used  by  the  various  accused  is  proved  and  

established by the prosecution witnesses and injury caused to the  

deceased and the injured tally substantially with the medical report  

and, therefore, the accused persons should have been convicted  

and sentenced to the maximum punishment provided in law. He  

further submitted that the order of  acquittal  passed by the High  

Court  in respect of Accused Nos. 5 and 6 namely Mohd. Juber  

Kasam Shaikh alias Tabrej alias Jugnu and Fazal Mohd. Shaikh  

alias Manni Argamutu Shetiyar is liable to be set aside for which  

the State has filed an appeal against the order of acquittal which  

should  be  allowed  and  the  said  accused-appellants  should  be  

convicted and sentenced to the maximum punishment.

44.  In  the  light  of  the aforesaid  submissions of  the counsel  

appearing for the parties we have scrutinized the entire records  

and the relevant provisions of law applicable to the case at hand.  

Section 2 (1) (e) of the MCOCA defines “organsied crime” as  

follows: -

“(e) "organised crime" means any continuing unlawful activity  

by an individual,  singly or  jointly,  either  as a member of  an  

organised crime syndicate or on behalf of such syndicate, by  

use of violence or threat of violence or intimidation or coercion,  

or  other  unlawful  means,  with  the  objective  of  gaining  

pecuniary  benefits,  or  gaining  undue  economic  or  other  

advantage  for  himself  or  any  other  person  or  promoting  

insurgency;”

Section 3 of the MCOCA reads as follows: -

“Section 3 - Punishment for organised crime  

(1) Whoever commits an offence of organised crime shall.-

(i) if such offence has resulted in the death of any person, be  

punishable with death or imprisonment for life and shall also be  

liable to a fine, subject to a minimum fine of rupees one lac;

(ii) in any other case, be punishable with imprisonment for a  

term which shall  not  be less than five years but  which may  

extend to imprisonment for life and shall also be liable to a fine,  

subject to a minimum fine of rupees five lacs.

(2)  Whoever  conspires or  attempts to  commit  or  advocates,  

abets or knowingly facilitates the commission of an organised  

crime  or  any  act  preparatory  to  organised  crime,  shall  be  

punishable  with  imprisonment  for  a  term which shall  be not  

less than five years but which may extend to imprisonment for  

life and shall also be liable to a fine, subject to a minimum fine  

of rupees five lacs.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”

Section 3 of the Arms Act, 1959 reads as follows:

“Section 3 - Licence for acquisition and possession of firearms  

and ammunition  

[(1)] No person shall acquire, have in his possession, or carry  

any firearm or  ammunition  unless  he  holds  in  this  behalf  a  

licence issued in accordance with the provisions of this Act and  

the rules made thereunder:  

Provided that a person may, without himself holding a licence,  

carry any firearms or ammunition in the presence, or under the  

written authority, of the holder of the licence for repair or for  

renewal of the licence or for use by such holder.

[(2) Notwithstanding anything contained in sub-section (1), no  

person, other than a person referred to in sub-section (3), shall  

acquire, have in his possession or carry at any time, more than  

three firearms:  

Provided  that  a  person  who  has  in  his  possession  more  

firearms  than  three  at  the  commencement  of  the  Arms  

(Amendment) Act, 1983, may retain with him any three of such  

firearms  and  shall  deposit,  within  ninety  days  from  such  

commencement,  the  remaining  firearms  with  the  officer  in  

charge  of  the  nearest  police  station,  or  subject  to  the  

conditions  prescribed for  the  purposes  of  sub-section  (1)  of  

section 21, with a licensed dealer or, where such person is a  

member of the armed forces of the Union, in a unit armoury  

referred to in that sub-section.  

(3)  Nothing  contained  in  sub-section  (2)  shall  apply  to  any  

dealer  in  firearms  or  to  any  member  of  a  rifle  club  or  rifle  

association licensed or recognised by the Central Government  

using a point 22 bore rifle or an air rifle for target practice.

(4) The Provisions of sub-section (2) to (6) (both inclusive) of  

section 21 shall apply in relation any deposit of firearms under  

the proviso to sub-section (2) as they apply in relation to the  

deposit  of  any arms or ammunition under sub-section (1) of  

that section.]”  

Section 7 of the Arms Act, 1959 reads as follows:

“Section  7  -  Prohibition  of  acquisition  or  possession,  or  of   

manufacture  or  sale  of  prohibited  arms  or  prohibited  

ammunition  

No person shall--  

(a) acquire, have in his possession or carry; or  

(b)  [use,  manufacture,]  sell,  transfer,  convert,  repair,  test  or  

prove; or  

(c)  expose  or  offer  for  sale  or  transfer  or  have  in  his  

possession for sale, transfer, conversion, repair, test or proof;  

any prohibited arms or prohibited ammunition unless he has  

been specially authorised by the Central  Government in this  

behalf.”  

Section 25 - Punishment for certain offences

“Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

[(1A)Whoever acquires, has in his possession or carries any  

prohibited arms or prohibited ammunition in contravention of  

section  7  shall  be  punishable  with  imprisonment  for  a  term  

which shall not be less than five years, but which may extend  

to ten years and shall also be liable to fine.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(1B) Whoever--

(a) acquires, has in his possession or carries any firearm or  

ammunition in contravention of section 3;or

(b)  acquires,  has  in  his  possession  of  carries  in  any  place  

specified by notification under section 4 any arms of such class  

or  description  as  has  been  specified  in  that  notification  in  

contravention of that section; or

(c) sells or transfers any firearm which does not bear the name  

of  the  maker,  manufacturer's  number  or  other  identification  

mark stamped or otherwise shown thereon as required by sub-

section (2) of section 8 or does any act in contravention of sub-

section (1) of that section; or

(d) being a person to whom sub-clause (ii) or sub-clause (iii) of  

clause (a) of sub-section (iii) of clause (a) of sub-section (1) of  

section 9 applies,acquires, has in his possession or carries any  

firearm or ammunition in contravention of that section;

(e) sells or transfers, or converts, repairs, tests or proves any  

firearm or ammunition in contravention of clause (b)  of  sub-

section (1) of section 9; or

(f) brings into, or take out of, India, any arm or ammunition in  

contravention of section 10; or

(g)  transports  any  arms  or  ammunition  in  contravention  of  

section 12; or

(h)  fails  to deposit  arms or  ammunition as required by sub-

section (2) of section3, or sub-section (1) of section 21;

(i)being a manufacturer of, or dealer in, arms or ammunition,  

fails, on being required to do so by rules made under section

44, to maintain a record or account or to make therein all such  

entries as are required by such rules or intentionally makes a  

false entry therein or prevents or obstructs the inspection of  

such  record  or  account  of  the  making  of  copies  of  entries  

therefrom or prevents or obstructs the entry into any premises  

or  other  place  where  arms  or  ammunition  are  or  is  

manufactured or kept or intentionally fails to exhibit or conceals  

such arms or  ammunition or  refuses to point  out  where the  

same are or is manufactured or kept;

shall be punishable with imprisonment for a term which shall  

not be less than 5 [one year] but which may extend to three  

years and shall also be liable to fine;

Provided  that  the  Court  may  for  any  adequate  and  special  

reason to be recorded in the judgment impose a sentence of  

imprisonment for a term of less than 6 [one year]”

Section 35 of the Arms Act, 1959 reads as follows:

“Section 35 -  Criminal responsibility of persons in occupation  

of premises in certain cases  

Where  any  arms  or  ammunition  in  respect  of  which  any  

offence under this Act has been or is being committed are or is  

found  in  any  premises,  vehicle  or  other  place  in  the  joint  

occupation or under the joint control of several persons, each  

of such persons in respect of whom there is reason to believe  

that he was aware of the existence of the arms or ammunition  

in  the  premises,  vehicle  or  other  place  shall,  unless  the  

contrary  is  proved,  be  liable  for  that  offence  in  the  same  

manner as if it has been or is being committed by him alone.”

45. Now we propose to deal with the various aspects of the  

contentions  raised  in  respect  of  each  of  the  accused  persons  

separately.  

46.  We  first  proceed  to  deal  with  the  case  of  Mohammed  

Farooq  Abdul  Gafur  Chipa  Rangari  (Accused  No.  1)  who  was  

arrested  on  13.03.1999.  Mr.  Zafar  Sadique,  learned  counsel  

appearing for Accused No. 1 very forcefully submitted before us  

that  Accused  No.  1  was  convicted  only  on  the  basis  of  the  

confessional  statement but  there is no corroboration of  the said  

confessional  statement.  It  was  also  submitted  that  even  no  

allegation regarding making of any confessional statement was put  

to the accused when he was examined under Section 313 CrPC. It  

was  further  submitted  that  since  the  aforesaid  confessional  

statement was inadmissible against a co-accused and the same  

not being a part of Section 313 CrPC, the sentence passed against  

the said accused is liable to be set aside and quashed.  

47. The aforesaid submission when examined in the light of  

the  records  does  not  find  favour.  Though  it  is  proved  and  

established from the records that Accused No. 1 did not himself  

participate in the actual shootout, it is alleged against him that he  

was a part of the gang of Chhota Shakeel, that he was in touch  

with the gang leaders in Karachi (Pakistan) and he also acted on  

behalf of the said gang so much so that he had effected payment  

of money arranged by the leaders of the gang to Accused Nos. 5,  

6, and 8 for causing the shootout. It was submitted by the Public  

Prosecutor appearing for the State of Maharashtra that Accused  

No. 1 paid Rs. 25,000/- to Mohd. Juber Kasam Shaikh alias Tabrej  

alias Jugnu (Accused No. 5) on 06.03.1999 and Rs. 10,000/- to

Abdul Hasan Bande Hasan Mistri (Accused No. 8). He pointed out  

that the allegation is that Accused No. 1 had paid a similar amount  

even  to  Fazal  Mohd.  Shaikh  alias  Manni  Argamutu  Shetiyar  

(Accused No. 6).  

48. The evidence that is placed before us clearly establishes  

that  Accused No.  1  was  responsible  for  procuring  a  pistol  and  

handing over the same to Accused No. 5 which was used in the  

shootout.  The  said  fact  is  also  established  and  proved  by  the  

confessional statement of Accused No. 5. Whether or not the said  

confessional statement could be used against a co-accused is a  

different matter which we will discuss at an appropriate stage.  

49. Evidence is also available to prove and establish the fact  

that Accused No. 1 is also responsible for arranging a driver i.e.  

Accused No. 8 who drove the car which was used in the shootout.  

The other material which is placed against Accused No. 1 is his  

own  confessional  statement  recorded  under  Section  18  of  

MCOCA. The legality of the aforesaid confessional statement is,  

however,  challenged  by  Accused  No.1  on  the  ground  that  the  

same does not bear a certificate in the identical terms as specified  

under  Rule  3(6)  of  the  MCOC  Rules  and  that  the  same  was  

recorded  by  Parambir  Singh  (PW-51)  who  was  an  officer  

associated with or interest in the investigation of the same.  

50. A perusal of Section 29 of MCOCA shows that it confers a  

rule  making  power  on  the  State.  The  State  of  Maharshtra  in  

exercise of the said power under sub-section (1) of Section 29 of  

the Act framed rules known as ‘Maharahstra Control of Organised  

Crime  Rules,  1999’.  Rule  3  provides  for  the  procedure  to  be

followed for recording of confession under Section 18 of MCOCA.  

Section 18 of the MCOCA reads as follows:

“Section 18 - Certain confessions made to police officer to be  

taken into consideration

(1)  Notwithstanding  anything  in  the  Code  or  in  the  Indian  

Evidence Act, 1872 (I of 1872), but subject to the provisions of  

this section, a confession made by a person before a police  

officer not below the rank of the Superintendent of Police ad  

recorded  by  such  police  officer  either  in  writing  or  on  any  

mechanical devices like cassettes, tapes or sound tracks from  

which  sounds  or  images  can  be  reproduced,  shall  be  

admissible in the trial of such person or co-accused, abettor or  

conspirator:

Provided  that,  the  co-accused,  abettor  or  conspirator  is  

charged and tried in the same case together with the accused.

(2) The confession shall be recorded in a free atmosphere in  

the same language in which the person is examined and as  

narrated by him.

(3)  The police officer  shall,  before recording any confession  

under sub-section (1), explain to the person making it that he is  

not bound to make a confession and that, if he does so, it may  

be used as evidence against him and such police officer shall  

not record any such confession unless upon questioning the  

person  making  it,  he  is  satisfied  that  it  is  being  made  

voluntarily. The concerned police officer shall, after recording  

such  voluntary  confession,  certify  in  writing  below  the  

confession  about  his  personal  satisfaction  of  the  voluntary

character of such confession, putting the date and time of the  

same.

(4) Every confession recorded under sub-section (1) shall be  

sent forthwith to the Chief Metropolitan Magistrate or the Chief  

Judicial Magistrate having jurisdiction over the area in which  

such confession has been recorded and such Magistrate shall  

forward  the  recorded confession  so received to  the  Special  

court which may take cognizance of the offence.

(5) The person whom a confession had been recorded under  

sub-section  (1)  shall  also  be  produced  before  the  Chief  

Metropolitan  Magistrate  or  the  Chief  Judicial  Magistrate  to  

whom the confession is required to be sent under sub-section  

(4)  alongwith the original  statement of  confession,  written or  

recorded on mechanical device without unreasonable delay.

(6)  The  Chief  Metropolitan  Magistrate  or  the  Chief  Judicial  

Magistrate  shall  scrupulously  record  the  statement,  if  any,  

made by the accused so produced and get his signature and in  

case of any complaint of torture, the person shall be directed to  

be produced for medical examination before a Medical Officer  

not lower in rank than of an Assistant Civil Surgeon.”

Further, Rule 3(6) of the Rules reads as follows:-

“3. Procedure for recording of confession under Sector 18 of   

the Act.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXX

(6) The confession recorded under sub-rule (5) shall, if it is in  

writing,  be  signed  by  the  person  who  has  made  such

confession and by the Police Officer,  who has recorded the  

said confession. Such Police Officer shall, under his own hand,  

also make a memorandum at the end of the confession to the  

following effect:-

“I have explained to (name of the confessor) that he is not  

bound  to  make  a  confession  and  that,  if  he  does  so,  any  

confession that he makes, may be used as evidence against  

him and I  am satisfied that  this  confession  has been made  

voluntarily. It has been made before me and in my hearing and  

has been recorded by me in the language in which it is made  

and as narrated by, the confessor. I have read it over to the  

confessor and he has admitted it to be verbatim and correct,  

and  containing  also  full  and  true  account  of  the  

confession/statement made by him.”

51.  We  have  perused  the  aforesaid  confessional  statement  

which substantially complies with the requirements of Section 18 of  

MCOCA read with the aforesaid rule.  

52. It was a categorical case of the prosecution that Parambir  

Singh (PW-51) who recorded the said confessional statement was  

never involved with the investigation of the case. The prosecution  

has also brought on record that PI Yashwant Puntambekar (PW-

36) of Mahim Police Station was handling the investigation from  

04.03.1999, then PI Bharat Tambe (PW-59) took over investigation  

on 06.03.1999 and thereafter, ACP Pradeep Sawant (PW-61) took  

charge of the investigation from Police Inspector Bharat Tambe on  

26.03.1999. On going through all the material available on record  

the High Court came to the categorical finding that the aforesaid  

confessional statement was made voluntarily and while recording

the same post confessional formalities were followed. It was held  

by the High Court that although the confessional statement does  

not bear any certificate in the identical terms as specified under  

Rule 3(6) of the MCOC Rules, 1999, it nevertheless complies with  

the  requirements  of  Section  18.  Apart  from  that,  there  is  also  

evidence on record indicating that Accused No. 1 made several  

phone  calls  to  gang  leaders  in  Pakistan  from  various  phone  

booths. The said fact is also accepted by the trial court as well as  

by the High Court.  We find no plausible  reason as to  why this  

Court should take a different view than what is taken by the trial  

court and the High Court on proper appreciation of the evidence on  

record.  

53. The confessional statement of Accused No. 8 was held to  

be  admissible  by  both  the  courts  below  in  which  he  had  

categorically stated that he knew Accused No. 1 from childhood  

and that Accused No. 1 had brought him to act as a driver in the  

said shootout and also paid him Rs. 10,000/- for the job. Accused  

No. 8 in his confessional statement had also stated that Accused  

No. 5 visited Accused No. 1.  

54. The confessional statements of Accused Nos. 5 and 6 are  

also relevant to prove and establish the involvement of Accused  

No.  1  with  the  incident.  In  the  said  confessional  statement,  

Accused No. 5 had stated that on 02.03.1999, Faheem informed  

Accused No. 5 on the phone that he would be sending two pistols  

with Accused No. 1. In fact, Accused No. 1 came to the house of  

Accused No. 5 to deliver the said pistols. It has also come out in  

the said confessional statement that out of the two pistols one was  

not in order and so the same was returned to Accused No. 1 and

that  on  05.03.1999  Accused  No.  5  called  Accused  No.  1  who  

informed  him  that  he  (Accused  No.  1)  has  spoken  to  Chhota  

Shakeel over the phone and informed him about the incident on  

the  previous  day.  Accused  No.  5  has  also  stated  in  his  

confessional  statement  that  Accused  No.  1  informed  him  that  

Chhota Shakeel had asked Accused No. 1 to pay Accused No. 5  

some  money.  Thereupon,  Accused  No.  1  paid  Rs.  20,000/-  to  

Accused  No.  5  at  Vakola  and  Accused Nos.  5  and  6  together  

informed Accused No. 1 that they were going to Kolkata.

55.  Besides  aforesaid  evidence  on  record  there  is  also  

evidence  of  other  witnesses  namely  PW-21,  owner  of  an  STD  

booth which was functioning under  the name and style  of  J.  J.  

Brothers Communication Centre. He stated in his statement that  

on 01.03.1999, Accused No. 1 made a phone call  to a specific  

number in Karachi (Pakistan). PW-35, who is the owner of phone  

booth named Data Link, stated that he personally knew Accused  

No. 1. He deposed that Accused No. 1 would come to his booth  

regularly  to  make  phone  calls  to  Pakistan.  PW-37,  who  was  

another  witness  and  the  owner  of  Azari  Communication  Action  

Centre, stated in his evidence that Accused No. 1 had made calls  

on specified numbers in Pakistan on 01.03.1999 and 09.03.1999.  

This evidence of PW-37 is also found to be corroborated by the  

evidence  of  PW-54.  Similar  is  the  evidence  of  PW-43  who  

deposed that calls were made by Accused No. 1 to Pakistan.

56.  The  High  Court  disbelieved  the  aforesaid  confessional  

statements of Accused Nos. 5 and 6 on the ground that the said  

confessional statements were inadmissible in evidence thereby it  

reversed the findings of the trial court. The High Court came to the

aforesaid  conclusion  on  the  basis  that  there  is  no  evidence  to  

show that any preliminary warning was given prior to the recording  

of the confessional statement and that in absence of proof of the  

fact  that  a  warning  was  given  prior  to  the  recording  of  the  

confessional statement, the same was inadmissible in evidence.  

57. In our considered opinion the High Court ignored the fact  

that there is evidence of PW-64, the typist who had deposed that  

the preliminary warning was in fact given which was so recorded  

on 23.07.1999.  Considering  the  facts  and  circumstances  of  the  

case we find no reason not to accept the said statement of PW-64,  

the typist. We also hold that the aforesaid confessional statement  

of  the  co-accused  could  be  the  basis  of  conviction  under  the  

provisions of MCOCA.  

58. We, therefore, hold Accused No. 1 guilty of all the charges  

which were already found to be proved and established by the trial  

court  and  affirmed  by  the  High  Court.  So  far  the  sentence  is  

concerned we, however, uphold and confirm the sentence passed  

by the High Court and also restore the punishment awarded by the  

trial  court  under  Section 212 read with  Section 52(A)  read with  

Section 120-B IPC.

59. So far as conviction under MCOCA is concerned, it is quite  

clear  that  conviction  could  be based solely  on the basis  of  the  

confessional  statement  itself  and  such  conviction  is  also  

permissible on the basis of the confessional statement of the co-

accused which could be used and relied upon for the purpose of  

conviction. In the case of State v. Nalini, (1999) 5 SCC 253, it was  

held by this Court in the context of Section 15 of the Terrorist and  

Disruptive Activities (Prevention) Act, 1987 (now repealed), which

is pari materia with Section 18 of the MCOCA that the evidence of  

a co-accused is admissible as a piece of substantive evidence and  

in view of the non obstante clause, the CrPC will not apply. The  

Court observed as follows in the relevant paras:

“415. When  Section  15  TADA  says  that  confession  of  an  accused is admissible against a co-accused as well, it would  

be  substantive  evidence  against  the  co-accused.  It  is  a  

different  matter  as  to  what  value  is  to  be  attached  to  the  

confession with regard to the co-accused as that would fall in  

the realm of appreciation of evidence.

416. The term “admissible” under Section 15 has to be given a  meaning. When it says that confession is admissible against a  

co-accused it  can only mean that  it  is  substantive  evidence  

against him as well as against the maker of the confession.

417. Mr Natarajan said that the confession may be substantive  evidence against the accused who made it but not against his  

co-accused. He reasoned that the confession was not that of  

the co-accused and it was not the evidence; it is the confessor  

who owned his guilt and not the co-accused; it is not evidence  

under Section 3 of the Evidence Act; it is not tested by cross-

examination;  and  lastly,  after  all  it  is  the  statement  of  an  

accomplice.  According to him it  can have only corroborative  

value and that is a well-established principle of the evidence  

even though Section 3 and Section 30 of the Evidence Act be  

ignored. But then Section 15 TADA starts with non obstante  

clause. It says that neither the Evidence Act nor the Code of  

Criminal  Procedure  will  apply.  This  is  certainly  a  departure  

from the ordinary law. But then it was also the submission of

Mr Natarajan that the bar which is removed under Section 15  

is qua Sections 24, 25 and 26 of the Evidence Act and not that  

all the provisions of the Evidence Act have been barred from  

its application. He, therefore, said that the view taken by this  

Court in  Kalpnath Rai  case7 that Section 30 of the Evidence  

Act  was  in  any  case  applicable,  was  correct.  We  think,  

however,  that  the  view  expressed  in  that  case  needs  

reconsideration.

418.  If  we analyse  Section 15,  the words which have been  added by the amending Act,  1993 have to  be given proper  

meaning and if we accept the argument of Mr Natarajan these  

words  will  be  superfluous  which  would  be  against  the  

elementary  principles  of  interpretation  of  statute.  For  the  

confession  of  an  accused  to  be  admissible  against  a  co-

accused, proviso to Section 15 says that they should be tried  

together. That is also Section 30 of the Evidence Act. Clauses  

(c)  and  (d)  of  Section  21  were  deleted  which  raised  a  

presumption of guilt against the co-accused. According to Mr  

Natarajan, that provision made the confession of a co-accused  

a substantive evidence and Parliament did not think it proper  

that it should be so. But then why add the words in Section 15?

419. “Admissible” according to Black’s Law Dictionary means:  

“Pertinent and proper to be considered in reaching a decision.  

Used with reference to the issues to be decided in any judicial  

proceeding.”

420. It defines “admissible evidence” as:

“As  applied  to  evidence,  the  term means that  the  evidence  

introduced is  of  such a character  that  the court  or  judge is

bound to receive it; that is, allow it to be introduced at trial. To  

be ‘admissible’ evidence must be relevant, and, inter alia, to be  

‘relevant’ it must tend to establish material proposition....”

If  we  again  refer  to  Black’s  Law  Dictionary  “substantive  

evidence” means:

“That adduced for the purpose of proving a fact in issue, as  

opposed to evidence given for the purpose of  discrediting a  

witness  (i.e.  showing  that  he  is  unworthy  of  belief),  or  of  

corroborating his testimony.”

421.  TADA  was  enacted  to  meet  extraordinary  situation  existing in the country. Its departure from the law relating to  

confession as contained in the Evidence Act is deliberate. Law  

has  to  respond  to  the  reality  of  the  situation.  What  is  

admissible  is  the  evidence.  Confession  of  the  accused  is  

admissible  with  the  same force  in  its  application  to  the  co-

accused who is tried in the same case. It is primary evidence  

and  not  corroborative.  When the  legislature  enacts  that  the  

Evidence Act would not apply, it would mean all the provisions  

of  the  Evidence  Act  including  Section  30.  By  judicial  

interpretation or judicial rigmarole, as we may put it, the court  

cannot again bring into operation Section 30 of the Evidence  

Act  and  any  such  attempt  would  not  appear  to  be  quite  

warranted.  Reference  was  made  to  a  few decisions  on  the  

question of interpretation of Sections 3 and 30 of the Evidence  

Act, foremost being that of the Privy Council in Bhuboni Sahu  

v.  R.8  and  though  we  note  this  decision,  it  would  not  be  

applicable because of the view which we have taken on the

exclusion of Section 30 of the Evidence Act. In Bhuboni Sahu  

case8 the Board opined as under:

“Section 30 seems to be based on the view that an admission  

by an accused person of  his own guilt  affords some sort  of  

sanction in support of the truth of his confession against others  

as  well  as  himself.  But  a  confession  of  a  co-accused  is  

obviously  evidence of  a very weak type. It  does not  indeed  

come within the definition of ‘evidence’ contained in Section 3,  

Evidence Act. It is not required to be given on oath, nor in the  

presence of  the accused,  and it  cannot  be tested by cross-

examination.  It  is a much weaker type of evidence than the  

evidence of an approver which is not subject to any of those  

infirmities.  Section 30, however,  provides that the court  may  

take the confession into consideration and thereby, no doubt,  

makes it evidence on which the court may act; but the section  

does not say that the confession is to amount to proof. Clearly  

there  must  be  other  evidence.  The  confession  is  only  one  

element in the consideration of all the facts proved in the case;  

it  can  be  put  into  the  scale  and  weighed  with  the  other  

evidence.  Their  Lordships  think  that  the  view  which  has  

prevailed in most of the High Courts in India, namely that the  

confession of  a  co-accused can be used only  in  support  of  

other  evidence  and  cannot  be  made  the  foundation  of  a  

conviction, is correct.”

422. In Kashmira Singh v. State of M.P.9 one of the questions  was how far and in what way the confession of an accused  

person can be used against a co-accused. The Court relied on  

the observations made by the Privy Council in Bhuboni Sahu

case8 and said that testimony of an accomplice can in law be  

used to corroborate  another  though it  ought  not  to be used  

save in exceptional circumstances and for reasons disclosed.

423.  In  Haricharan Kurmi v. State of Bihar10 this Court again  relied on its earlier decision in Kashmira Singh case9 and on  

the decision of  the Privy Council  in Bhuboni  Sahu case8.  It  

said  that  technically  construed,  definition  of  evidence  as  

contained in Section 3 of the Evidence Act will  not apply to  

confession.  Even so,  Section  30 provides that  a  confession  

may be taken into consideration not only against its maker, but  

also against a co-accused person; that is to say, though such a  

confession may not be evidence as strictly defined by Section  

3  of  the  Act,  it  is  an  element  which  may  be  taken  into  

consideration by the criminal court and in that sense, it may be  

described  as  evidence  in  a  non-technical  way.  But  it  is  

significant that  like other evidence which is produced before  

the court, it is not obligatory on the court to take the confession  

into account. When evidence as defined by the Act is produced  

before  the court,  it  is  the  duty  of  the court  to  consider  that  

evidence. What weight should be attached to such evidence is  

a matter in the discretion of the court. But a court cannot say in  

respect of such evidence that it will just not take that evidence  

into account. Such an approach can, however, be adopted by  

the  court  in  dealing  with  a  confession,  because  Section  30  

merely enables the court to take the confession into account.

424. In view of the above discussions, we hold the confessions  of the accused in the present case to be voluntarily and validly  

made and under Section 15 of TADA confession of an accused

is admissible against a co-accused as a substantive evidence.  

Substantive  evidence,  however,  does  not  necessarily  mean  

substantial evidence. It is the quality of evidence that matters.  

As  to  what  value is  to  be attached to  a  confession will  fall  

within the domain of appreciation of evidence. As a matter of  

prudence,  the  court  may  look  for  some  corroboration  if  

confession is to be used against a co-accused though that will  

again be within the sphere of appraisal of evidence.”  

60.  Reiterating  the  aforesaid  position  of  law,  this  Court  in  

Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234,  

at page 261 observed as follows:  

“33.  As  was  noted  in  Gurdeep  Singh case2  whenever  an  

accused  challenges  that  his  confessional  statement  is  not  

voluntary, the initial burden is on the prosecution for it has to  

prove  that  all  requirements  under  Section  15  of  TADA and  

Rule 15 of the Terrorist and Disruptive Activities (Prevention)  

Rules, 1987 (hereinafter referred to as “the Rules”) have been  

complied with. Once this is done the prosecution discharges its  

burden and then it is for the accused to show and satisfy the  

court that the confessional statement was not made voluntarily.  

The confessional statement of the accused can be relied upon  

for the purpose of conviction, and no further corroboration is  

necessary if it relates to the accused himself. It has to be noted  

that in Nalini case7 by majority it was held that as a matter of  

prudence  the  court  may  look  for  some  corroboration  if  

confession is to be used against a co-accused though that will  

be  again  within  the  sphere  of  appraisal  of  evidence.  It  is  

relevant to note that in Nalini case7 the Court was considering

the  permissibility  of  conviction  of  a  co-accused  on  the  

confessional statement made by another accused. In this case,  

we are concerned with the question as to whether the accused  

making the confessional  statement  can be convicted on the  

basis  of  that  alone  without  any corroboration.  The following  

observations in  Jayawant Dattatray  case6 are relevant: (SCC  

p. 146, para 60)

“60.  2. Confessional statement before the police officer under  

Section 15 of the TADA is substantive evidence and it can be  

relied upon in the trial of such person or co-accused, abettor or  

conspirator  for  an  offence  punishable  under  the  Act  or  the  

Rules. The police officer before recording the confession has  

to observe the requirement of sub-section (2) of Section 15.  

Irregularities here and there would not make such confessional   

statement  inadmissible  in  evidence.  If  the  legislature  in  its  

wisdom has provided after considering the situation prevailing   

in the society that such confessional statement can be used as  

evidence, it would not be just, reasonable and prudent to water   

down the scheme of the Act on the assumption that the said  

statement  was  recorded  under  duress  or  was  not  recorded  

truly by the officer concerned in whom faith is reposed. It  is  

true  that  there  may  be  some  cases  where  the  power  is  

misused by the authority concerned. But such contention can  

be raised in almost all cases and it would be for the court to   

decide to what extent the said statement is to be used.  Ideal  

goal may be: confessional statement is made by the accused  

as repentance for his crime but for achieving such ideal goal,  

there must be altogether different atmosphere in the society.  

Hence, unless a foolproof method is evolved by the society or

such  atmosphere  is  created,  there  is  no  alternative,  but  to  

implement the law as it is.”

(emphasis supplied in original)

61. In the case of Jameel Ahmed v. State of Rajasthan, (2003)  

9  SCC 673,  at  page 689,  this  Court  summarized the aforesaid  

legal position as follows:  

“35. To sum up our findings in regard to the legal arguments  addressed in these appeals, we find:

(i) If the confessional statement is properly recorded, satisfying  

the mandatory provision of Section 15 of the TADA Act and the  

Rules made thereunder, and if the same is found by the court  

as having been made voluntarily and truthfully then the said  

confession is sufficient to base a conviction on the maker of  

the confession.

(ii) Whether such confession requires corroboration or not, is a  

matter for the court  considering such confession on facts of  

each case.

(iii) In regard to the use of such confession as against a co-

accused, it has to be held that as a matter of caution, a general  

corroboration  should  be  sought  for  but  in  cases  where  the  

court is satisfied that the probative value of such confession is  

such that it does not require corroboration then it may base a  

conviction on the basis of such confession of the co-accused  

without corroboration. But this is an exception to the general  

rule of requiring corroboration when such confession is to be  

used against a co-accused.

(iv) The nature of corroboration required both in regard to the  

use of confession against the maker as also in regard to the  

use of the same against a co-accused is of a general nature,  

unless  the  court  comes  to  the  conclusion  that  such  

corroboration should be on material facts also because of the  

facts  of  a  particular  case.  The  degree  of  corroboration  so  

required  is  that  which  is  necessary  for  a  prudent  man  to  

believe in the existence of facts mentioned in the confessional  

statement.

(v) The requirement of sub-rule (5) of Rule 15 of the TADA  

Rules which contemplates a confessional statement being sent  

to  the  Chief  Metropolitan  Magistrate  or  the  Chief  Judicial  

Magistrate  who,  in  turn,  will  have  to  send the  same to  the  

Designated  Court  is  not  mandatory  and  is  only  directory.  

However, the court considering the case of direct transmission  

of the confessional statement to the Designated Court should  

satisfy  itself  on  facts  of  each  case  whether  such  direct  

transmission of the confessional statement in the facts of the  

case  creates  any  doubt  as  to  the  genuineness  of  the  said  

confessional statement.”

62. Reverting back to the factual position of the present case,  

so  far  as  Aslam Mohammed  Kutti  (Accused  No.  2)  and  Abdul  

Kadar Abdul  Gafoor  Rizvi  (Accused No. 3)  are concerned,  they  

have been acquitted by the trial court as against which no appeal  

was filed in the High Court, therefore, the said acquittal is not the  

subject matter of appeal before us and we are not called upon to  

look into the aforesaid order of acquittal passed by the trial court.

63. We now come to the case of Mansoor Hasan Haji Iqbal  

Pankar (Accused No. 4) who was also represented by the same  

counsel  who appeared for  Accused No.  1.  He was arrested on  

21.06.1999 along with Accused Nos. 2 and 3. Mr. Zafar Sadique,  

learned  counsel  appearing  for  Accused  No.  4,  who  is  also  

appearing  for  Accused  No.  1,  submitted  before  us  that  the  

prosecution failed to show that the confession statement made by  

him was voluntary or truthful  as there is no corroboration of the  

said  confessional  statement.  It  was  also  submitted  that  the  

confessional  statement  made  by  Accused  No.  4  having  been  

retracted  and  the  same  having  not  been  corroborated  by  the  

prosecution  witnesses,  the  impugned  judgment  cannot  be  

sustained.  It  was  further  submitted  that  since  the  aforesaid  

confessional  statement  was  inadmissible  against  a  co-accused  

and the same not being a part of Section 313 CrPC, the sentence  

passed  against  the  said  accused  is  liable  to  be  set  aside  and  

quashed. The learned counsel next submitted that Accused No. 4  

had  not  played  an  active  role  in  the  shootout  and  had  no  

knowledge of the conspiracy.

64. The aforesaid submissions when examined in the light of  

the  records  cannot  be  accepted.  Though  it  is  proved  and  

established from the records that Accused No. 4 did not himself  

participate in the actual shootout, it is alleged against him that he  

was a part of the gang of Chhota Shakeel, that he was in constant  

touch with Mohd. Faheem and also he acted on behalf of the said  

gang so much so that he purchased mobile phones and sim cards  

and he also arranged the Maruti Car on the instructions of Mohd.  

Faheem which was used for the shootout and received payment  

for the same, that he was present during the handing over of AK-

56 and pistol to Accused No. 7 on the morning of the incident and  

he was privy to the conversations between Chhota Shakeel, Mohd.  

Faheem and Accused No. 7 on the day of the shootout.

65. Accused No. 4 himself has admitted that he was in regular  

contact over phone with Mohd. Faheem, the associate of Chhota  

Shakeel, that he purchased mobile phone and sim cards on the  

instructions of Mohd. Faheem and received payment for the same,  

that he arranged the Maruti car which was used for the shootout  

on the instructions of Mohd. Faheem, that he was present during  

the handing over  of  AK-56 and pistol  to Accused No. 7 on the  

morning  of  the  incident  and  he  was  privy  to  the  conversations  

between Chhota Shakeel, Mohd. Faheem and Accused No. 7 on  

the day of the shootout and that he was an active member of the  

gang of Chhota Shakeel who actively participated in the activities  

of the organized crime syndicate which fact is corroborated by his  

confessional statement.

66.  So  far  as  confessional  statement  of  Accused  No.  4  is  

concerned, we find the same to be trustworthy and reliable. It is  

evidently clear from the records that the confessional statement of  

Accused No. 4 was recorded on 30.07.1999 by Ravindra Kadam  

(PW-39)  who  was  DCP  (Zone-IV)  which  was  produced  before  

CMM in a sealed envelop. The aforesaid confessional statement  

was found to be in substantial compliance with the requirements of  

Section 18 of MCOCA. The High Court  came to the categorical  

finding that post confessional formalities have been followed and  

although the confessional statement does not bear a certificate in  

the  identical  terms  as  specified  under  Rule  3(6)  of  the  MCOC  

Rules, there is nevertheless compliance of Section 18 of MCOCA.

We find no plausible ground to discard the view taken by the High  

Court in this regard.

67. The submission of the learned counsel appearing for the  

State  that  Accused  No.  4  has  rendered  assistance  to  the  

organized  crime  syndicate  by  providing  phones,  sim-cards  and  

arranging the car  which was used in  the shootout  gets  support  

from  the  fact  that  Accused  No.  4  himself  admitted  in  his  

confessional statement that he was in constant touch with Mohd.  

Faheem on the phone,  bought  secondhand mobile  phones and  

sim cards for gang members, stole the Maruti car, brought it to the  

petrol pump for repairs and subsequently handed over the same to  

Accused No. 7.  

68. The aforesaid confessional statement is supported by the  

deposition  of  Deepak  Narayan  Shinde  (PW-53),  PSI,  Crime  

Branch, Unit IV who deposed that Accused No. 4 led the police to  

Asia  Communication  Centre  from  where  he  had  bought  six  or  

seven  mobile  phones.  The  aforesaid  confessional  statement  is  

also supported by the evidence of the Manager of Chhagan Mitha  

Petrol Pump, who corroborated the fact that the aforesaid Maruti  

car was brought by Accused No. 4 to his petrol pump for repairs  

and servicing. Further, the evidence of PW-20, a pancha witness,  

whose name was kept secret establishes and proves that Accused  

No.  4  led  the  police  to  the  said  petrol  pump  on  25.06.1999.  

Accused No. 4 also led the police to Lucky Motor Training School  

wherefrom he obtained a duplicate driving license in the name in  

his brother. The evidence of Shabibul Hasan Munir Hasan Sayyed  

(PW-15), real owner of the Maruti Car, proves that the car bearing  

No. BLD 1949 was stolen and that he had lodged a complaint to

that effect on 30.01.1999. The evidence of another witness Abdul  

Nabi Bagwan(PW-42), PSI, RA Kidwai Marg, Police Station who  

deposed  about  the  seizure  of  the  aforesaid  Maruti  car  at  Jain  

Derasar Lane clearly throws light on the fact that Accused No. 4  

was using the stolen car.

69.  Confessional  statement  of  Accused  No.  7,  which  was  

found to be admissible in evidence by the trial court as well as the  

High Court, also corroborates and supports the facts admitted by  

Accused No.  4 in  his  confessional  statement  with  regard to  his  

(Accused No. 4’s) role in arranging the Maruti Car which was used  

in the shootout, his presence during the handing over of the deadly  

weapons by Accused No. 3 to Accused No. 7 and that  he was  

present when Accused No. 7 was talking to Chhota Shakeel on  

04.03.1999. Therefore, it is clear that Accused No. 4 had heard the  

conversation prior  to  the shootout  and thus had the knowledge  

about the conspiracy.  

70. PW-18, cousin of Milind Vaidya, who was an eye-witness  

to the incident described in detail what he saw on the day of the  

incident. He deposed that he had seen Accused No. 4 along with  

Accused Nos. 5, 6 and 7. Later he identified him during TIP. Apart  

from him, Accused No. 4 was also identified by PW-2, PW-3, PW-

12, PW-13, PW-22 and PW-30 in the TIP.  

71. In view of the aforesaid submissions made by the learned  

counsel  appearing  for  the  State  and  the  materials  placed  on  

record,  we do not  find any reason to interfere with  the findings  

recorded by the High Court so far as involvement of Accused No. 4  

in  the  incident  is  concerned.  There  are  cogent  and  convincing  

evidence  available  against  him  to  prove  and  establish  his

involvement  in  the entire  incident  which  justifies  his  convictions  

and  sentences  on  each  count.  Therefore,  in  our  considered  

opinion, the High Court rightly held that Accused No. 4 had played  

an active and important role in the conspiracy even though he did  

not  participate  in  the  actual  shoot  out  and  that  he  had  the  

knowledge  of  the  conspiracy.  In  that  view  of  the  matter  the  

contention of the learned counsel appearing for Accused No. 4 that  

he had not played any active role in the shootout and he had no  

knowledge of the conspiracy is found to be baseless.  

72. We now take up the case of Mohd. Juber Kasam Shaikh  

alias Tabrej alias Jugnu (Accused No. 5) and Fazal Mohd. Shaikh  

alias Manni Argamutu Shetiyar (Accused No. 6) who were brought  

to Mumbai on 26.06.1999, pursuant to wireless message received  

from Delhi Police regarding their arrest by the Special Cell of Delhi  

Police.

73.  Learned  counsel  appearing  for  Accused  Nos.  5  and  6  

vehemently  argued  that  the  present  appeal  being  an  appeal  

against acquittal, in a situation wherein two views are manifestly  

possible, this Court must not interfere with the decision of the High  

Court.  It  submitted  that  the  judgment  of  the  High  Court  is  a  

perfectly  valid  based  on  the  basis  of  true  appreciation  of  the  

material on record and the same does not call for any interference.  

74. On the other hand, learned counsel appearing for the State  

refuted the aforesaid submissions. He submitted that evidence of  

PW-18, a 12th standard student, who was the eye-witness of the  

incident and identification by him in the court has been found to be  

extremely  credible  by both the courts  below.  He submitted that  

PW-18 saw the car from which the assailants alighted shortly prior

to the incident and observed them quite carefully and he saw the  

car again with the assailants shortly after the incident as well and  

has given a detailed description of assailants i.e. Accused Nos. 5,  

6 and 7. He also described Accused No. 4 and identified all these  

persons i.e. Accused Nos. 4 to 7 in court. He identified Accused  

No. 7 as the person who had fired shots in the air. Counsel further  

submitted  that  in  addition  to  the  evidence  of  PW-18  there  are  

evidence of certain eye-witnesses namely, PW-2, PW-3, PW-12,  

PW-13 and PW-30 also which prove the guilt of accused persons.  

He  next  submitted  that  confessional  statement  made  under  

Section 18 of MCOCA as well as confessional statements of the  

co-accused namely, Accused Nos. 1, 7 and 8 are strong evidence  

against  Accused  Nos.  5  and  6.  Moreover,  the  confessional  

statements of co-accused have been found to be admissible by  

both the courts below. He further submitted that discovery of 9 mm  

pistol which was used in the firing at the instance of Accused No. 5  

proves and establishes the guilt of Accused No. 5.  

75. On a careful perusal of the material on record and in the  

light  of  the  submissions  made  by  the  learned  counsel  for  the  

parties  we  find  that  the  evidence  of  PW-18  who  was  an  eye-

witness of the incident is credible and trustworthy as he described  

the incident  as well  as the assailants in detail.  Furthermore,  he  

identified the accused persons i.e. Accused Nos. 4 to 7 in the court  

as  well  as  during  the  TIP.  His  evidence has been found to  be  

trustworthy and reliable by both the courts below. The High Court  

held that TIP with respect to Accused Nos. 5 and 6 was vitiated  

because  Accused No.  5  had  a  squint  in  the  right  eye  and  the  

dummies used in the TIP did not have the similar squint in the right  

eye.  But,  the  High  Court  did  not  make  it  clear  as  to  why  the

identification of Accused No. 6 was also vitiated. Accused Nos. 5  

and 6 were also identified by ten witnesses. Therefore, we find the  

TIP as a reliable piece of evidence as the same proves the identity  

of accused persons beyond reasonable doubt.

76.  The  contention  of  the  learned  counsel  appearing  for  

accused persons that there was inordinate delay in conducting the  

TIP cannot be accepted in view of the fact that both the accused  

persons were taken into custody on 25.06.1999 whereas the TIP  

was held on 10.08.1999. Therefore, the TIP was conducted only  

after a period of 45 days which is not such a long period to cast  

any doubt over the evidentiary value of the TIP. Even otherwise, a  

TIP does not constitute substantive evidence but can only be used  

for corroboration of the statement in court. It is primarily meant for  

the purpose of helping the investigating agency with an assurance  

that their progress with the investigation is proceeding on the right  

lines. The substantive evidence is the evidence of identification in  

court, which in the present case has been done by PW-18. This  

Court  in the case of  Amitsingh Bhikamsingh Thakur v.  State of   

Maharashtra,(2007)  2  SCC  310,  at  page  315,  has  succinctly  

observed as follows :  

“13. As was observed by this Court in Matru v. State of U.P.1  

identification  tests  do  not  constitute  substantive  evidence.  

They  are  primarily  meant  for  the  purpose  of  helping  the  

investigating agency with an assurance that their progress with  

the  investigation into  the offence is  proceeding on the  right  

lines. The identification can only be used as corroborative of  

the statement in court. (See Santokh Singh v. Izhar Hussain2.)  

The necessity  for  holding  an identification  parade can  arise

only  when  the  accused  are  not  previously  known  to  the  

witnesses. The whole idea of a test identification parade is that  

witnesses who claim to have seen the culprits at the time of  

occurrence are to identify them from the midst of other persons  

without any aid or any other source. The test is done to check  

upon their veracity. In other words, the main object of holding  

an identification parade,  during the investigation stage,  is  to  

test the memory of the witnesses based upon first impression  

and also to enable the prosecution to decide whether all or any  

of  them  could  be  cited  as  eyewitnesses  of  the  crime.  The  

identification  proceedings  are  in  the  nature  of  tests  and  

significantly, therefore, there is no provision for it in the Code  

of  Criminal  Procedure,  1973  (in  short  “the  Code”)  and  the  

Evidence Act, 1872 (in short “the Evidence Act”). It is desirable  

that a test identification parade should be conducted as soon  

as after the arrest of the accused. This becomes necessary to  

eliminate  the  possibility  of  the  accused being  shown to  the  

witnesses prior to the test identification parade. This is a very  

common plea of the accused and, therefore, the prosecution  

has to be cautious to ensure that there is no scope for making  

such allegation. If, however, circumstances are beyond control  

and there is some delay, it cannot be said to be fatal to the  

prosecution.

14.  “7.  It  is  trite  to say that  the substantive evidence is the  

evidence  of  identification  in  court.  Apart  from  the  clear  

provisions of Section 9 of the Evidence Act, the position in law  

is well settled by a catena of decisions of this Court. The facts,  

which  establish  the  identity  of  the  accused  persons,  are  

relevant  under Section 9 of  the Evidence Act.  As a general

rule,  the substantive evidence of  a witness is the statement  

made  in  court.  The  evidence  of  mere  identification  of  the  

accused person at  the trial  for  the first  time is from its very  

nature inherently of a weak character. The purpose of a prior  

test  identification,  therefore,  is  to  test  and  strengthen  the  

trustworthiness of that evidence. It is accordingly considered a  

safe rule of prudence to generally look for corroboration of the  

sworn testimony of witnesses in court as to the identity of the  

accused  who  are  strangers  to  them,  in  the  form  of  earlier  

identification proceedings. This rule of prudence, however, is  

subject  to  exceptions,  when,  for  example,  the  court  is  

impressed by a particular witness on whose testimony it can  

safely  rely,  without  such  or  other  corroboration.  The  

identification parades belong to the stage of investigation, and  

there is no provision in the Code of Criminal Procedure which  

obliges  the  investigating  agency  to  hold,  or  confers  a  right  

upon the accused to claim a test identification parade. They do  

not  constitute  substantive  evidence  and  these  parades  are  

essentially governed by Section 162 of the Code of Criminal  

Procedure.  Failure to hold a test  identification parade would  

not make inadmissible the evidence of identification in court.  

The weight to be attached to such identification should be a  

matter for the courts of fact. In appropriate cases it may accept  

the  evidence  of  identification  even  without  insisting  on  

corroboration.  (See  Kanta  Prashad  v.  Delhi  Admn.3,  

Vaikuntam Chandrappa v. State of A.P.4, Budhsen v. State of   

U.P.5 and Rameshwar Singh v. State of J&K6.).”

77. Next contention of the learned counsel appearing for the  

accused  persons  that  the  photograph  of  Accused  No.  5  was

published in an Urdu daily thereby making the identity of Accused  

No. 5 public also does not find favour in view of the fact that the  

witnesses are Maharashtrians and, therefore, there is no likelihood  

of their reading the paper and seeing the photograph of Accused  

No. 5.

78.  The evidence  of  another  eye-witness  PW-13,  a  student  

who was a by-stander, was not believed by the High Court on the  

premise that he did not disclose the incident to anybody for four  

days.  In  our  view,  the  evidence of  PW-13  ought  to  have been  

relied upon by the High Court as he clearly stated in his evidence  

that though he did not see the faces of the assailants, he saw the  

face of the driver-Accused No. 8 whom he described. He stated  

that he saw the bodyguard of Milind Vaidya chase the car with a  

rifle. He also noted the number of the car as MH 01 N 7514. His  

statement gets support from the evidence of PW-3, the body-guard  

of Milind Vaidya who was an eye-witness of the incident and who  

deposed that he chased the car up to some distance but did not  

fire  any shot,  although armed with  a carbine.  The statement  of  

PW-13 also gets corroboration from the evidence of PW-30, who  

was an injured witness of the incident and who deposed that he  

saw both the bodyguards of Milind Vaidya chase the car and one  

of them fired at it. Therefore, it would not be proper and justified to  

discard  his  evidence  only  because  he  did  not  state  about  the  

incident  to  anyone  for  four  days.  Since  his  evidence  is  

corroborated and supported by other material evidence on record  

the  same  cannot  be  discarded  only  because  of  the  aforesaid  

reason.

79.  The  evidence  of  PW-12  and  PW30,  who  were  injured  

witnesses,  was  disbelieved  by  the  High  Court  though  these  

witnesses have given a reasonable description of the assailants.  

Moreover, their evidence was not shaken in the cross-examination.  

PW-30 deposed that he saw all the 3 assailants and saw both the  

bodyguards of Milind Vaidya chase the car and one of them fired  

at it. He also described the assailants. In our opinion, the injured  

witnesses as well as the other eye-witnesses have no reason to  

falsely depose against the accused persons as it was not shown  

that they had either any prior enmity with the accused persons or  

they  are  interested  parties.  In  fact,  they  are  the  victims  of  the  

horrendous and ghastly attack made by the perpetrators.  

80.  Dinanath  Pawar  PW-2  and  Sandeep  Waghmare  PW-3,  

who were  the bodyguards  of  the intended target,  Milind Vaidya  

were eye-witnesses of the incident. PW-2 stated in his deposition  

that he fired three rounds from his pistol at the Maruti car. PW-3  

stated in his deposition that he chased the car up to some distance  

but  did  not  fire  any shot,  although armed with  a carbine.  Their  

statements  are  corroborated  by  the  evidence  of  PW-30  who  

deposed  that  he  saw  all  the  3  assailants  and  saw  both  the  

bodyguards of Milind Vaidya chase the car and one of them fired  

at it.  Statements of both the eye-witnesses i.e. PW-2 and PW-3  

are also supported by the evidence of another eye-witness PW-13,  

a student  who was a by-stander who deposed that  he saw the  

bodyguard of Milind Vaidya chase the car with a rifle. Both of them  

were the persons who actually witnessed the shootout and were  

present at the site of the shootout. Furthermore, both of them have  

given  a  description  of  the  physical  features  of  the  assailants  

including  Accused  Nos.  5  and  6.  Therefore,  in  our  considered

opinion, the High Court ought to have relied upon the evidence of  

PW-2 and PW-3 in the light of the circumstantial evidence brought  

on record. Thus, the trial court rightly found the evidence of PW-2  

and  3  trustworthy  and  reliable  as  both  of  them  have  the  best  

available opportunity to see the assailants.

81. Confessional statements of Accused Nos. 5 and 6 were  

recorded before DCP Shinde on 26.07.1999. Accused No. 5 stated  

in  his  confessional  statement  that  he  had  joined  the  Chhota  

Shakeel gang and was constantly in touch with Chhota Shakeel.  

He  also  stated  that  he  had  been  receiving  funds  from  Chhota  

Shakeel and had been arrested on three different occasions. On  

an analysis of the confessional statement of Accused No. 5 we find  

that  he  has  made  a  detailed  statement  of  the  instructions  he  

received  from  Mohd.  Faheem  and  Chhota  Shakeel  in  Karachi,  

Pakistan to kill  Milind Vaidya and has stated the involvement of  

Accused Nos. 1, 6, 7 and 8 in the shootout. After the shootout he  

was advised by Mohd. Faheem to leave Mumbai and so he fled to  

Kolkata  and  subsequently  to  Nepal  wherefrom  he  was  finally  

arrested on or about 09.06.1999.  

82.  Accused  No.  6  stated  about  his  earlier  involvement  in  

murder cases in his confessional statement. He also stated as to  

how he met Accused No. 5 in Aurther Road Jail and that Accused  

No. 5 introduced him to the Chhota Shakeel gang. Confessional  

statement of Accused No. 6 is found to be almost identical to the  

confessional statement of Accused No. 5.

83.  Both  the  aforesaid  confessional  statements  of  Accused  

Nos. 5 and 6 were held to be vitiated and inadmissible by the High  

Court on the ground that the requirements under Section 18 (3) of

MCOCA were not fully complied with. The High Court came to this  

conclusion on the basis that the record of the preliminary inquiry in  

respect of Accused Nos. 5 and 6 recorded on 23.07.1999 could  

not  be  traced.  The  High  Court  also  held  that  there  was  no  

compliance of the mandatory provisions of Rule 15 of the MCOC  

Rules  which  requires  a  certificate  to  be  attached  with  the  

confessional statement.  

84. When we analyze the material on record and the aforesaid  

confessional  statements  of  Accused Nos.  5  and  6  we find  that  

although  the  fact  that  the  pre-confessional  statements  were  

recorded on 23.07.1999 is not traceable, the fact that they were  

actually recorded is corroborated by the evidence of PW-64, the  

typist  who  had  deposed  that  the  preliminary  statements  were  

recorded on 23.07.1999. Thereafter, they were given a period of  

reflection for  48 hours which is  corroborated by PW-60,  PW-63  

and PW-64. Therefore,  there can be no doubt that the accused  

were sufficiently warned in advance about the consequences of  

their  confessions.  In  our  considered  opinion,  the  High  Court  

altogether failed to take into account the evidence of PW-64, the  

typist.  The  trial  court  has  rightly  held  that  all  the  requirements  

under  Section 18 (3)  of  MCOCA were fully  complied with  while  

recording the confessional statements. Moreover, Accused Nos. 7  

and 8 also described the involvement of Accused Nos. 5 and 6 in  

the shootout in their respective confessional statements. We find  

that  the  confessional  statements  of  Accused Nos.  7  and  8  are  

consistent with the confessional statements of Accused Nos. 5 and  

6.  Reliance in  this  regard may be made to  the decision of  this  

Court in the case of  Jaywant Dattatray v. State of Maharashtra,  

(2001) 10 SCC 109, wherein it was held that irregularities here and  

there would not make the confessional statement inadmissible.

85.  The  reasoning  of  the  High  Court  that  the  confessional  

statements  of  the  co-accused  are  not  admissible  in  evidence  

because Section 313 of CrPC had not been complied with is not  

tenable as there is a non-obstante clause in Section 18 (3) which  

precludes the application of CrPC and, therefore, the evidence of a  

co-accused is admissible as a piece of substantive evidence. [See  

Nalini case (supra)]

86. When we examine the report of the ballistic expert and the  

submission of learned counsel appearing for the State with respect  

to the discovery of 9 mm pistol at the instance of Accused No. 5  

which was used in the firing, we find that the report of the ballistic  

expert  shows that  the weapon and bullets  tally  with  each other  

and, therefore, we come to a clear conclusion that the weapon was  

used in firing during the shootout. Moreover, there is a clear finding  

of fact by both the courts below that the 9 mm pistol was recovered  

on 18.07.1999 at the instance of Accused No. 5 from his hut in  

Mahim.  Therefore,  in  our  considered  opinion,  this  recovery  of  

weapon clearly proves and establishes the guilt of Accused No. 5.

87. It is clear from the material on record that Accused No. 5  

made certain telephone calls to gang leaders in Karachi, Pakistan.  

This  fact  gets  corroboration  from  the  discovery  of  3  telephone  

booths in Bandra and Mahim at  the instance of  Accused No. 5  

wherefrom telephone calls were made by him to the gang leaders  

in Karachi, Pakistan. This evidence gets further corroboration from  

the evidence of the owners of the telephone booths who deposed  

that  calls  were  actually  made  to  certain  specific  numbers  in

Karachi, Pakistan by Accused No. 5. In our opinion the High Court  

was not justified in holding that it was not established with certainty  

that  those  telephone  calls  even  though  made  indeed  from  the  

booths identified by Accused No. 5 and on the numbers disclosed  

by  him,  were  actually  made  by  Accused  No.  5  because  the  

prosecution has examined six STD/ISD booth owners to prove that  

some of the accused had made telephone calls from their booths  

to Karachi, Pakistan and their evidence was found to be cogent  

and trustworthy by both the trial court as well as by the High Court  

itself. Therefore, the view taken by the High Court with respect to  

Accused  No.  5  is  not  a  plausible  view  as  the  same  is  in  

contradistinction of the view taken by the High Court with regard to  

other accused persons and it is proved from the material on record  

that  Accused  No.  5  has  made  certain  telephone  calls  to  gang  

leaders at specific numbers in Karachi, Pakistan.

88.  The  High  Court  erroneously  held  that  conviction  under  

Section 27 (3) read with Section 7 of the Arms Act could not be  

sustained although a 9 mm pistol was recovered at the instance of  

Accused No. 5 and it is proved that Accused No. 5 had used the  

pistol.  Further,  the  report  of  the  ballistic  expert  establishes  and  

proves  that  the  weapon  and  the  bullets  tally  each  other.  The  

ballistic expert also opined in the report that one of the victims of  

the shootout was killed due to a bullet from a 9 mm pistol. Apart  

from  the  report  of  ballistic  expert  there  is  medical  evidence  

available on the record which show that  the death of  the three  

deceased persons was caused by the injuries sustained due to fire  

arms during the shootout and, therefore, it can be inferred that the  

weapon  was  used  in  the  shootout.  It  is  pertinent  to  note  that  

Accused  No.  6  had  also  used  the  pistols  and  fired  during  the

shootout.  Moreover,  though in case of  Accused No. 7 the High  

Court held that the evidence does not disclose that the bullets fired  

from AK-56 had resulted in the death of any person, it convicted  

him under Section 27 (2) of the Arms Act.

89. The finding of the High Court that the sanction order under  

Section 39 of the Arms Act suffered from non-application of mind is  

not sustainable in view of the material available on record as we  

find that the sanction order in the present case is a detailed one  

and displays proper application of mind. Reference in this regard  

may be made to the decision of this Court in Gunvantlal v. State of   

M. P., (1972) 2 SCC 194, wherein it was held that under the Arms  

Act all that is required for sanction for prosecution under Section  

39,  is  that  the  person  to  be  prosecuted  was  found  to  be  in  

possession of the firearm, the date or dates on which he was so  

found in possession and the possession of the firearm was without  

a valid licence.

90. In view of the above, the order of acquittal passed by the  

High Court in respect of Accused Nos. 5 and 6 is hereby set aside  

in the appeal filed by the State of Maharashtra. Both the accused  

persons are convicted for the charges as alleged against them and  

sentenced to undergo rigorous imprisonment for life.

91. So far as Azzizuddin Zahiruddin Shaikh alias Abdul Sattar  

(Accused  No.  7)  is  concerned,  he  was  sentenced  to  capital  

punishment by the trial court. The High Court, however, on appeal  

while maintaining the order of conviction altered the sentence from  

capital punishment to that of imprisonment for life. Being aggrieved  

by the  aforesaid  order  of  conviction  passed by the High Court,  

Accused No.7 preferred a special leave petition being SLP (Crl.)

No. 1469 of 2004 which was dismissed by an order dated 8th April,  

2004. Therefore, the order of conviction passed against Accused  

No.  7  sentencing  him  to  undergo  imprisonment  for  life  stood  

upheld.  So far  as the State appeal  as far  as Accused No. 7 is  

concerned, it is filed only for the purpose of enhancement of his  

sentence in as much as the State by filing the present appeal has  

questioned the order of  the High Court  altering the sentence of  

capital  punishment  to  that  of  imprisonment  for  life.  However,  

considering the entire facts and circumstances of the case and the  

evidence  placed  on  record  against  him,  we  find  that  capital  

punishment  in  the  instant  case  would  not  be  justified  and,  

therefore, the appeal of the State so far the issue with regard to  

alteration of the sentence of imprisonment of life to that of capital  

punishment is dismissed.  

92. Lastly, we take up the case of Abdul Hasan Bande Hasan  

Mistri  (Accused  No.  8)  who  was  arrested  on  21.07.1999.  The  

learned  counsel  appearing  for  Accused  No.  8  vehemently  

contended  that  the  confessional  statement  was  recorded  in  

contravention of  Section 18 of  MCOCA and Rules and the said  

confessional  statement  was  not  corroborated  by  any  cogent  

evidence  to  establish  the  guilt  of  the  accused.  It  was  further  

contended that the identification of Accused No. 8 by PW 22 in TIP  

does not inspire confidence and the same should not have been  

taken into consideration by the Court.

93.  Learned counsel  appearing for  the State,  submitted that  

Accused No. 8 was the person who drove the car on the day of  

incident.  He made Accused No. 1 drive the Maruti  car in which  

Accused Nos. 5, 6 and 7 reached the place of incident and from

the said car they fired at the victims. Furthermore, he was paid for  

the job by Accused No. 1.  

94. On a meticulous perusal of the materials placed on record  

we  find  that  the  confessional  statement  of  Accused No.  8  was  

recorded under Section 18 of MCOCA by DCP Ravindra Kadam  

(PW-39) on 16.08.1999 in which Accused No. 8 disclosed that he  

knew Accused No. 1 and has seen Accused No. 5 visiting Accused  

No. 1, that Accused No. 1 promised to pay Rs. 10,000/- to him for  

acting as a driver for the purpose of committing the crime and the  

amount was actually paid to him by Accused No. 1 on 06.03.1999,  

that he met Accused No. 5 at the instance of Accused No. 1 and  

both of them then contacted Chhota Shakeel, that he was driving  

the car and Accused No. 7 sat by his side while Accused Nos. 5  

and 6 sat at the back seat.

95. The aforesaid confessional statement of Accused No. 8 is  

found to be admissible in evidence and relied upon by both the  

courts below having been found to be recorded in compliance with  

Section  18  of  MCOCA.  When  we  examine  the  aforesaid  

confessional statement we find that Accused No. 8 has given a  

detailed account  of  the incident  and the modus operandi  of  the  

accused persons. He has given complete description of the role  

played by Accused Nos. 5, 6 and 7 in the shootout. Therefore, in  

our  considered  opinion,  the  High  Court  rightly  came  to  the  

conclusion that Accused No. 8 conspired with the other accused  

persons  and  also  rendered  assistance  in  the  commission  of  

organized crime even though he did not fire any shot or carry arms  

with him. His participation in the crime was significant.

96.  On  an  analysis  we  find  that  the  aforesaid  confessional  

statement  of  Accused  No.  8  is  supported  by  the  confessional  

statements of the co-accused namely, Accused Nos. 5, 6 and 7.  

The confessional statement of Accused No. 7 which is found to be  

admissible in evidence and relied upon by both the courts below  

clearly  establishes the role  played by Accused No.  8.  The role  

played by Accused No. 8 is also proved and established from the  

evidence of PW-22, a boy from Vadala (Jain Darsan Lane), who  

has given a sufficiently detailed account of what he saw on the day  

when  the  car  was  abandoned.  He  deposed  that  he  had  seen  

Accused No. 8 on 07.03.1999 while he was abandoning the car  

which was used in the shootout. He identified Accused No. 8 in the  

TIP. Accused No. 8 was also identified by PW-13, an eye-witness  

to  the crime.  The High Court  found the testimony of  PW-22 as  

truthful and trustworthy.  

97.  Evidence  of  Shrirang  Balwanrao  Shinde  (PW-54),  PSI,  

Crime Branch,  Unit-IV  and  PW-31,  pancha  witness  proves  that  

Accused No. 8 led the police to Room No. 15, 3rd Floor, Building  

No.  1,  Kidwai  Nagar,  Vadala  on  29.07.1999  where  his  parents  

were also present and he took out two number plates of the car  

from the place which was used in the shootout wrapped in a paper  

underneath a wooden bench. Both the number plates bore No. MH  

01 N 7514.  

98. In the light of the aforesaid evidence on record we find that  

even though Accused No. 8 has not fired any shot and he was not  

carrying  any arms with  him but  he played an active role in the  

crime and his participation in the crime was significant. He was the  

person who took the assailants to the place of incident by driving

the stolen Maruti car and he received the money for driving the car  

which fact was admitted by him in his confessional statement. It is  

also clear from the records that he was an active member of the  

gang of Chhota Shakeel and was involved in the criminal activities  

of  the  organized  crime  syndicate  run  by  the  gang  leaders.  

Therefore, we uphold the order of conviction and sentence passed  

by the High Court against him.  

99. In nutshell, order of conviction and sentence passed by the  

High  Court  in  respect  of  Accused  Nos.  1,  4  and  8  are  to  be  

maintained. Since no appeal against the acquittal of Accused Nos.  

2 and 3 filed in the High Court against their acquittal by the trial  

court, the said acquittal is not the subject matter of appeal before  

us.  Order  of  acquittal  passed  by  the  High  Court  in  respect  of  

Accused Nos. 5 and 6 is set aside in the appeal filed by the State  

and they are directed to undergo rigorous imprisonment for  life.  

Accused No. 7 has been sentenced to capital punishment by the  

trial court which was altered to the rigorous imprisonment for life by  

the High Court against which an SLP was filed in this Court which  

was  dismissed.  Since  in  one  of  the  appeals  relating  to  a  co-

accused, life sentence awarded was upheld by this Court without  

issuing any notice for enhancement of sentence, we find no reason  

to  take  a  different  view  in  cases  of  the  other  accused  herein,  

particularly when in respect of Accused Nos. 5 and 6 there was an  

order of acquittal by one Court. Lastly, the order of conviction and  

sentence  passed  by  the  High  Court  against  Accused  No.  8  is  

upheld and the sentence of imprisonment of life is maintained on  

the same ground. Before parting with the records, we would like to  

place on record our deep appreciation for the valuable assistance

provided by Dr. Rajeev B. Masodkar, Advocate as amicus curiae  

of Accused Nos. 5 and 6.

S.B. SINHA, J.

INTRODUCTION

1.  I  have  had  the  opportunity  of  going  through  the  draft  

circulated by my brother judge Mukundakam Sharma, J. and I am  

in complete agreement with the views expressed by him therein.

2.  However,  I  may add a few words on the appeals by the  

State of Maharashtra against the impugned judgment as regards  

imposition of  capital  sentence on three Accused herein namely,  

Accused  5,  M  Zuber  Kasam  Shaikh,  Accused  6,  Fazal  Mohd  

Shaikh and Accused 7, Azzizuddin Zahiruddin Shaikh.

CONTENTIONS OF THE STATE

3. It was argued before us by the State of Maharashtra that the  

case at hand falls within the category of the `rarest of rare'. It was  

submitted that in the facts and circumstances of the case only a  

death sentence would meet the requirements of justice. Contention  

of the State that what brought this case within the special category  

of  the  `rarest  of  rare  cases'  was  the  fact  that  the  incident  in  

question  was  not  a  stray  crime  of  murder  but  was  in  fact  an  

extremely  sophisticated and organised crime whose strings had  

been  attached  to  outside  the  country.  Accordingly  the  incident  

which resulted in the death of three persons and caused grievous  

injury to seven, was an assault on civilised society.

4.  The  State  of  Maharashtra  has  further  relied  on  the  long  

criminal  history of  all  the three  accused namely,  Accused 5,  M  

Zuber  Kasam  Shaikh  ,  Accused  6,  Fazal  Mohd  Shaikh  and

Accused 7, Azzizuddin Zahiruddin Shaikh to show that they were  

hardened and seasoned criminals. It is emphasized that Accused  

7, Azzizuddin Zahiruddin Shaikh had received training from the ISI  

in Pakistan, likewise both Accused 5, M Zuber Kasam Shaikh and  

Accused 6,  Fazal  Mohd Shaikh  were  contract  killers  who were  

working for Chotta Shakeel and Faheem. It has been argued that  

the imposition of a prison sentence on the accused would not be  

deterrent  but  would  only  serve  as  an  opportunity  for  these  

criminals to further network on behalf of their gang. In fact it has  

been argued that Accused 5, M Zuber Kasam Shaikh had come in  

contact  with  Accused  6,  Fazal  Mohd  Shaikh  while  serving  his  

prison sentence and therefore the jail sentence would hardly prove  

a  deterrent  to  such  seasoned  and  hardened  criminals.  These  

submissions of the State in our opinion deserve to be rejected in  

the strongest words.

CAPITAL SENTENCING AND PROCEDURAL JUSTICE

5.  Indian  courts  have  a  long  experience  in  exercising  wide  

discretion  to  select  penalty  under  section  302.  A  fair  capital  

sentencing system, which aims towards achieving a consistent and  

principled approach and delineating articulate sentencing pegs has  

long been the  concern  of  this  court.  Bachan Singh  v.  State  of   

Punjab  [(1980 2  SCC 684]  and thereafter  numerous  judgments  

have tried to clear the fog on this issue.

6. In this regard, it is pertinent to revisit the basic tenets of our  

sentencing system. Any capital sentencing system, by virtue of the  

nature  of  penalty  it  deals  with,  inheres  a  hierarchical  review  

mechanism. A tiered court system is at the heart of achieving a  

substantial standard of review which essentially kicks in as soon

as death punishment is awarded. The review courts are supposed  

to assess the findings emerging from the pre-sentencing hearing at  

the trial stage as also other available material and then arrive at  

conclusion of its own on the propriety of sentence. In this context,  

apex court as the final reviewing authority has a far more serious  

and intensive duty to discharge. The court not only has to ensure  

that  award  of  death  penalty  does  not  become  a  perfunctory  

exercise  of  discretion  under  section  302  after  an  ostensible  

consideration of Rarest of Rare doctrine, but also that the decision  

making process survives the special  rigors of  procedural  justice  

applicable  in  this  regard.  Procedural  justice  threshold  not  only  

emphasizes  the  substantive  compliance  of  Bachan  Singh  dicta,  

[for  a  comprehensive  treatment  of  Bachan  Singh  (supra)  see  

Santosh Kumar  Satishbhushan  Bariyar  v.  State  of  Maharashtra   

[2009 (7) SCALE 341] in relation to selection of penalty, but also  

compliance of other due process requirements. It must be noted  

that administration of Death Penalty is carried out in the intensive  

gaze  of  Article  14  and  Article  21  requirements.  Bariyar  (supra)  

aptly captures the sentiment in this regard:

“We are also governed by the Constitution of India. Article 14  

and 21 are constitutional safeguards and define the framework  

for  state  in  its  functions,  including  penal  functions.  They  

introduce values of institutional propriety, in terms of fairness,  

reasonableness and equal treatment challenge with respect to  

procedure to be invoked by the state in its dealings with people  

in various capacities, including as a convict. The position is, if  

the state is precariously placed to administer a policy within the  

confines  of  Article  21  and  14,  it  should  be  applied  most  

sparingly. This view flows from  Bachan Singh  (supra) and it

this light, we are afraid that Constitution does not permit us to  

take  a  re-look  on  the  capital  punishment  policy  and  meet  

society's cry for justice through this instrument."

7.  It  is  universally  acknowledged  that  judicial  discretion  is  

subjective in nature and left to itself has potential to become erratic  

and personality based which makes it  antithetical to the spirit of  

Article 14. Article 14 applies to judicial process including exercise  

of  judicial  discretion  as  it  applies  to  the  executive  process.  Of  

course, the nature of Article 14 application in this case will be on a  

different plane altogether and an objective analysis on that count  

would  have  to  meet  the  Ceteris  paribus  (with  other  things  the  

same) requirement. The disparity in capital sentencing has been  

unequivocally asserted not only in Bariyar (supra) but also in Aloke  

Nath Dutt  and ors.  v.  State of West Bengal, [2006 (13) SCALE  

467]  and in  Swamy Shraddananda @ Murli  Manohar Mishra v.  

State of Karnataka [2008 (10) SCALE 669].

8.  In such a scenario,  rule based judging norms and sound  

rules  of  prudence  are  the  only  guarantee  to  fair  and  equitable  

sentencing.  This  emerges  from the constitutional  context  to  the  

administration  of  capital  sentencing  problem  as  also  a  closer  

reading of rarest of rare test. The Bachan Singh court invoked the  

superlative  standard  safeguarded  the  judicial  space  to  award  

death penalty. We should bear in mind that the test will be fulfilled  

not merely by employing the "personal predilection" of a judge [see  

Swamy  Shraddananda  (supra)]  and  deciding  the  rarest  of  rare  

instance on the facts of the case, but only after due consideration  

of the intangibles relating to the case. The assessment of "rarest of  

the rare case" is incomplete without coming to the conclusion that

the  "the  lesser  alternative  is  unquestionably  foreclosed".  And  

procedural  fairness  and  justice  concerns  form part  of  the  latter  

condition.  

9. What are the other due process requirements such that the  

lesser alternative can be said to be unquestionably foreclosed? It  

is to be noted that the selection of Life Imprisonment as a lesser  

alternative can not be deemed to be "unquestionably foreclosed"  

till  the  time  objective  fairness  standards  as  to  the  sentencing  

process  are  attained  with  regard  to  capital  sentence.  We  may  

come across instances where the case may belong to the rarest of  

rare category, but in court's view the objective fairness standards  

necessary to be met before death penalty can be awarded have  

not  been  complied  with  diligently.  In  State  of  Maharashtra  v.  

Suresh, [(2000) 1 SCC 471]), this court observed:

"regarding  sentence  we  would  have  concurred  with  the  

Sessions Court's view that the extreme penalty of death can be  

chosen  for  such  a  crime,  but  as  the  accused  was  once  

acquitted  by  the  High  Court  we  refrain  from  imposing  that  

extreme penalty in spite of the fact that this case is perilously  

near the region of `rarest of rare' cases."

10. Objective fairness standards as engrained under  Bachan  

Singh (supra) will include opportunity of review of capital sentence,  

timely trial, and comparative review. In  Bariyar  (supra), this court  

held:

"The  aggravating  and  mitigating  circumstances  have  to  be  

separately identified under a rigorous measure. Bachan Singh  

(supra),  when  mandates  principled  precedent  based  

sentencing,  compels  careful  scrutiny  of  mitigating

circumstances  and  aggravating  circumstances  and  then  

factoring  in  a  process  by  which  aggravating  and  mitigating  

circumstances appearing from the pool of comparable cases  

can be compared.

The  weight  which  is  accorded  by  the  court  to  particular  

aggravating and mitigating circumstances may vary from case  

to case in the name of  individualized sentencing,  but  at  the  

same  time  reasons  for  apportionment  of  weights  shall  be  

forthcoming. Such a comparison may point out excessiveness  

as also will help repel arbitrariness objections in future.

A  sentencing  hearing,  comparative  review  of  cases  and  

similarly  aggravating  and  mitigating  circumstances  analysis  

can only be given a go by if the sentencing court opts for a life  

imprisonment.

....

To translate the principle (to translate the rarest of rare case)  

in sentencing terms, firstly, it  may be necessary to establish  

general pool of rare capital cases. Once this general pool is  

established,  a  smaller  pool  of  rare  cases  may  have  to  

established to compare and arrive at a finding of Rarest of rare  

case."

PRIMACY TO RULES OF PRUDENCE

11.  In  an  apparent  conflict  between  a  "fair  and  equitable"  

sentencing  system  and  an  "efficient  and  deterrent"  sentencing  

philosophy  in  the  context  of  Death  Penalty,  the  Bachan  Singh  

verdict, without a doubt, favours the former. It is not to suggest that  

deterrent as a theory of punishment is not relevant at all in section

302, but that there is more to this question. Capital Sentencing is  

not a normal penalty discharging the social function of punishment.  

In this particular  punishment,  there is heavy burden on court  to  

meet the procedural justice requirements, both emerging from the  

black letter law as also conventions. In terms of rule of prudence  

and from the point of view of principle, a court may choose to give  

primacy to life imprisonment over death penalty in cases which are  

solely based on circumstantial evidence or where high court has  

given a life imprisonment or acquittal.

12. At this juncture, it will be pertinent to assess the nature of  

rarest of rare expression. In light of serious objections to disparity  

in sentencing by this court flowing out of varied interpretations to  

the Rarest of Rare expression, it is clear that the test has to be  

more than what a particular judge locates as rarest of rare in his  

personal consideration. There has to an objective value to the term  

rarest  of  rare,  otherwise  it  will  fall  foul  of  Article  14.  In  such a  

scenario, a robust approach to arrive at rarest of rare situations will  

give primacy to what can be called the consensus approach to the  

test. In our tiered court system, an attempt towards deciphering a  

common view as to what can be called to be the rarest of rare,  

vertically  across  the  trial  court,  high  court  and  apex  court  and  

horizontally across a bench at any particular level, will  introduce  

some  objectivity  to  the  precedent  on  death  penalty  which  is  

crumbling down under the weight of disparate interpretations.

13. This is only a rule of prudence and as such there is no  

statutory  provision  to  this  effect.  Minority  opinion  of  Justice  

Thomas  in  Suthendraraja  alias  Suthenthira  Raja  alias  Santhan

and Ors. v. State [AIR 1999 SC 3700] very aptly capture this point  

of view:

"17.  The  Constitution  Bench  in  Bachan  Singh  v.  State  of   

Punjab  has  narrowed  down  the  scope  for  awarding  death  

sentence to the extremely restricted radius of "rarest of rare  

cases"  in  which  the  alternative  lesser  sentence  of  

imprisonment for life is unquestionably foreclosed. In the main  

judgment in the present case one of the three Judges found  

that  sentence of  imprisonment  for  life  would  be sufficient  to  

meet the ends of justice as far A-1 Nalini.

18. In a case where a Bench of three Judges delivered  

judgment in which the opinion of at least one Judge is in favour  

of preferring imprisonment for life to death penalty as for any  

particular accused, I think it would be a proper premise for the  

Bench to review the order of sentence of death in respect of  

that accused. Such an approach is consistent with Article 21 of  

the  Constitution  as  it  helps  saving  a  human  life  from  the  

gallows and at the same time putting the guilty accused behind  

the bars for life. In my opinion, it would be a sound proposition  

to  make  a  precedent  that  when  one  of  the  three  Judges  

refrains from awarding death penalty to an accused on stated  

reasons in preference to the sentence of life imprisonment that  

fact can be regarded sufficient to treat the case as not falling  

within the narrowed ambit  of  "rarest of  rare cases when the  

alternative option is unquestionably foreclosed".

...

“I may add as an explanatory note that the reasoning is  

not to be understood as a suggestion that a minority opinion in

the judgment can supersede the majority view therein. In the  

realm of making a choice between life imprisonment and death  

penalty the above consideration is germane when the scope  

for awarding death penalty has now shrunk to the narrowest  

circle  and  that  too  only  when  the  alternative  option  is  

"unquestionably foreclosed". In a special situation where one  

of the three deciding judges held the view that sentence of life  

imprisonment is sufficient  to meet the ends of  justice it  is  a  

very relevant consideration for the Court to finally pronounce  

that the prisoner can be saved from death as the lesser option  

is not "unquestionably foreclosed" in respect of that prisoner."

14. Justice Shah (in minority) in Devender Pal Singh v. State,   

N.C.T. of Delhi and anr. [(2002) 5 SCC 234] also heavily relied on  

the minority opinion in Suthendraraja (supra) for that matter.

15. In Licchamadevi v. State of Rajasthan, AIR 1988 SC 1785  

this court observed:

"Where there are two opinions as to the guilt of the accused,  

by the two courts, ordinarily the proper sentence would be not  

death but imprisonment for life."

16. The rule that it  would not be proper to award the death  

sentence  where  the  two  lower  courts  disagreed  on  conviction  

developed  in  Licchamadevi  v.  State  of  Rajasthan (supra)  was  

followed in  State of Maharashtra v. Suresh  [(2000) 1 SCC 471]).  

Reliance has also been placed on the same principle in  State of  

U.P. v. Babu Ram  [(2000) 4 SCC 515],  State of Maharashtra v.   

Damu s/o Gopinath Shinde and ors. [(2000) 6 SCC 269] and State  

of Maharashtra v. Bharat Fakira Dhiwar  (AIR 2002 SC 16). It will  

also  be  in  the  fitness  of  this  discussion  that  we  mention  the

departure  from  this  rule  in  State  of  Rajasthan  v.  Kheraj  Ram  

[(2003) 8 SCC 224], Devender Pal Singh v. State, N.C.T. of Delhi   

and anr. (with Krishna Mochi)  (AIR 2003 SC 886) and  State of  

U.P. v. Satish (AIR 2005 SC 1000).

17. It is only apt to mention here that the Law Commission in  

its  187th  Report  has  recommended  that  in  cases  where  the  

Supreme  Court  Bench  hearing  a  particular  case  finds  that  an  

acquittal by a High Court should be overturned and the accused be  

sentenced to death, or where it finds that the punishment should  

be enhanced from life imprisonment to death, such cases should  

be  transferred  by  the  Chief  Justice  to  a  Bench  of  at  least  five  

judges.

"SWINGING FORTUNES"

18.  Swinging  fortunes  of  the  accused  on  the  issue  of  

determination of guilt and sentence at the hand of criminal justice  

system is something which is perplexing for us when we speak of  

fair  trial.  The  situation  is  accentuated  due  to  the  inherent  

imperfections of the system in terms of delays, mounting cost of  

litigation in High Courts and apex court, legal aid and access to  

courts  and  inarticulate  information  on  socio-economic  and  

criminological  context of  crimes. In such a context,  some of the  

leading  commentators  on death  penalty  hold  the  view that  it  is  

invariably the marginalized and destitute who suffer the extreme  

penalty ultimately.

19. One of the accused in the instant case was acquitted in  

December 2003 by the High Court. It has been more than 8 years  

since  he  was  freed  in  relation  to  the  matter  at  hand.  At  this  

juncture, this becomes a relevant factor. In State of Maharashtra v.  

Manglya  Dhavu  Kongil, AIR  1972  SC  1797,  even  though  the  

Supreme  Court  reversed  the  acquittal  by  the  High  Court  and  

restored the original conviction of the trial court, it did not award  

the sentence of death observing that the death sentence had been  

awarded over four years previously and in the period in between,  

the accused had been freed from prison.

20. In  State of Uttar Pradesh v. Sughar Singh and Ors,  AIR  

1978 SC 191 this court awarded life imprisonment stating, "having  

regard to the considerable time that has elapsed since the date of  

the occurrence and having regard to the fact that the High Court's  

decision of acquittal in their favour is being set aside by us, the  

extreme  penalty  of  death  ought  not  to  be  imposed...".  Similar  

reasoning was offered by this court in  State of Haryana v. Sher  

Singh and Ors., [(1981) 2 SCC 300], State of U.P. v. Hakim Singh  

and Ors. (AIR 1980 SC 184), Gurnam Kaur v. Bakshish Singh and  

Ors. (AIR 1981 SC 631), State of Uttar Pradesh v. Sahai and Ors.  

[(1982) 1 SCC 352] and  State of Uttar Pradesh v. Suresh alias  

Chhavan  and  Ors. [(1981)  3  SCC  635])  (for  a  rigorous  and  

comprehensive review of death penalty jurisprudence on this issue  

and  otherwise  please  see  Amnesty  International  Report  titled  

"Lethal Lottery: The Death Penalty in India - A study of Supreme  

Court judgments in death penalty cases 1950-2006")

RECENT DECISIONS

21. Recently the question as to the imposition of death penalty  

again came for consideration before this court in State of Punjab v.   

Manjit  Singh  &  Ors, [2009  (8)  SCALE  622].  Therein  the  two  

accused had been held responsible for the murder of four persons  

which included the husband and the son of  the women both of

them were  having an illicit  relationship  with.  The deceased had  

objected to the said relationship and even physically abused the  

lady.  This  is  what  ultimately  incited  the  accused  to  murder  the  

deceased persons in cold blood. The trial court sentenced both the  

accused to a death sentence. The High court in reference however  

commuted the sentence to one for life. Brother Sharma, J. while  

deciding the question of sentencing reiterated the law with respect  

to the imposition of a death penalty, observing:

"17. The above discussed legal principles have been followed  

consistently in numerous judgments of this Court. Whether the  

case is one of the rarest of the rare cases is a question which  

has to be determined on the facts of each case. It needs to be  

reiterated  that  the  choice  of  the  death  sentence  has  to  be  

made  only  in  the  rarest  of  the  rare  cases  and  that  where  

culpability of the accused has assumed depravity or where the  

accused is found to be an ardent criminal and menace to the  

society  and;  where  the  crime  is  committed  in  an  organized  

manner  and  is  gruesome,  cold-blooded,  heinous  and  

atrocious; where innocent and unarmed persons are attacked  

and murdered without any provocation."

22. The Court accordingly affirmed the judgment of the High  

Court on the ground that the accused had only acted out in the  

gruesome manner after coming to know of the ill treatment meted  

out by the deceased persons to the women they had feelings for.

23.  We  may  also  place  on  record  that  in  Rameshbhai   

Chandubhai Rathod v. State of Gujarat [2009 (6) SCALE 469], two  

of  the  Hon'ble  Judges of  this  Court  differed on the question of  

imposition of death penalty.

FACTS AND SITUATIONS OF THE PRESENT CASE

24.  In  the facts  and circumstances of  the case,  and having  

regard to the well settled principles of law that we have referred to  

hereinbefore, we are not persuaded, as has rightly been held by  

Brother Sharma, that it is not a case where the only sentence to  

which the accused persons herein were entitled to that of death.

25. In our opinion the trail court had wrongly rejected the fact  

that even though the accused had a criminal history, but there had  

been no criminal conviction against the said three accused. It had  

rejected the said argument on the ground that a conviction might  

not  be possible  in  each and every  criminal  trial.  In  our  opinion  

unless a person is proven guilty, he should be presumed innocent.

26. Further nothing has been brought on behalf of the State  

even after all  these years,  that the criminal  trials that had been  

pending  against  the  accused  had  resulted  in  their  conviction.  

Unless the same is shown by documents on records we would  

presume to the contrary. Presumption of  innocence is a human  

right. The learned trail judge should also have presumed the same  

against all the three accused.

27. In our opinion the alleged criminal history of the accused  

had a major bearing on the imposition of the death sentence by the  

trial court on the three accused. That is why in our opinion he had  

erred in this respect.

28. It  is also to be noted that the trail  court  has brought on  

record various irrelevant and invidious considerations with respect  

to sentencing. The trial court observes that death penalty must be  

awarded in this case so as to  motivate police not  to  indulge in  

encounter killings and catch the accused alive. Role of ISI agency

of  Pakistan,  black  money  racketeering  in  the  organized  crime  

syndicate  has  also  been  discussed  at  great  length  in  the  

sentencing  part  of  the  judgment.  These  aspects  are  not  only  

absolutely  irrelevant  to  sentencing  in  the  instant  case  but  also  

bears  an  extremely  subjective  and  loose  articulation  and  

delineation of factors relevant to sentencing in the instant case.

29. It  is worth mentioning that  in the present case the High  

Court had acquitted both Accused 5, M Zuber Kasam Shaikh and  

Accused  6,  Fazal  Mohd  Shaikh.  It  is  from  that  acquittal  that  

appeals for their conviction and sentencing come before us. While  

imposing the sentence of life on the accussed the Court must have  

the judgment of acquittal of the High Court in the back of its mind.  

In our considered opinion if at least one of the courts below had  

acquitted the accused person in respect of the crimes for which  

they are to be sentenced, the burden on the prosecution would be  

even more heavier, which the State in our opinion has not been  

able to discharge.

30. If a person is sentenced to imprisonment, even if it be for  

life,  and subsequently it  is found that he was innocent and was  

wrongly convicted, he can be set free. Of course, the imprisonment  

that he has suffered till then cannot be undone and the time he has  

spent in the prison cannot be given back. Such a reversal is not  

possible  where  a  person  has  been  wrongly  convicted  and  

sentenced to  death.  The execution  of  the  sentence of  death in  

such cases makes miscarriage of justice irrevocable. It is a finality  

which cannot be corrected.

31. And once Accused 5, M Zuber Kasam Shaikh and Accused  

6 Fazal Mohd Shaikh have been sentenced to life there remains

no  question  of  awarding  a  death  sentence  to  Accused  7,  

Azzizuddin Zahiruddin Shaikh who had played no greater a role in  

the  said  incident  as  Accused  5,  M  Zuber  Kasam  Shaikh  and  

Accused 6 Fazal Mohd Shaikh. All the three accused stand on an  

equal  footing  and  therefore  the  sentences  to  be  imposed  upon  

them must not differ. It is for the aforementioned reasons that the  

appeals  filed  by  the  State  as  regard  the  imposition  of  a  death  

Sentence deserves to be dismissed.

32. We must not lose sight of another fact. The High Court has  

awarded life imprisonment.  This Court,  save and except  in very  

rare  cases,  should  interfere  therewith.  One  view  has  been  

expressed. Unless it can be objectively held that such a view is  

illogical,  a contrary view should not be taken for the purpose of  

imposing death penalty.  

33. I respectfully agree with the opinion of Brother Sharma, J. that the  

appeal of the State should be dismissed.