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Sunil & Others v/s State of Maharashtra


Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

    Criminal Application Nos. 1525 of 2018, 1455 of 2018, 1792 of 2018 in Criminal Appeal Nos. 378 of 2018, 375 of 2018, 389 of 2018

    Decided On, 10 April 2019

    At, In the High Court of Bombay at Aurangabad

    By, THE HONOURABLE MR. JUSTICE T.V. NALAWADE & THE HONOURABLE MR. JUSTICE MANGESH S. PATIL

    For the Applicants: N.R. Shaikh, S.S. Thombre, S.V. Natu, Advocates. For the Respondent: M.M. Nerlikar, APP.



Judgment Text

T.V. Nalawade, J.

1. All the applicants are convicted in Special (MCOCA) Case No. 1/2011 which was pending in the Court from Nashik. In all 22 accused were tried for offences punishable under sections 120-B, 149, 342, 364, 384, 302, 201, 212, 216 etc. of Indian Penal Code (hereinafter referred to as 'IPC' for short) and sections 3(1)(i), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as 'the Act' for short). One accused was absconding during trial. Applicant of Criminal Application No. 1455/2018 Gani Mehboob Sayyad was accused No. 7 in aforesaid special case and he has filed Criminal Appeal No. 375/2018. Applicant of Criminal Application No. 1525/2018 Sunil s/o. Dnyandeo Lahare was accused No. 4 and he has filed Criminal Appeal No. 378/2018. Applicant Nilesh Cikse of Criminal Application No. 1792/2018 was accused No. 13 and he has filed Criminal Appeal No. 389/2018. The Trial Court has convicted accused Nos. 1 to 10, 13 and 16 for offences punishable under sections 364 r/w. 120-B, 384 r/w. 120-B, 302 r/w. 120-B (for two murders), 201 r/w. 120-B of IPC and all the aforesaid provisions of the Act. Each accused is sentenced to pay fine of more than Rs. fifteen lakh and direction is given to give compensation of Rs. ten lakh to each legal heirs of the two deceased. Maximum sentence of imprisonment for life is given. Both the sides are heard.

2. Deceased Pravin Gondkar and deceased Ruchit Patni were friends and they were residents of Shirdi. All the accused persons are residents of Shirdi. The relations between the first informant Vilas Gondkar, who is father of Pravin and accused No. 1 Pappya Shaikh were strained. Vilas had given report against Pappya for attempt of his murder. Mother of Pappya had given report against Vilas and Pravin that they had set fire to the house of Pappya.

3. On 4.6.2011 at 10.00 p.m. deceased Pravin informed to Vilas that Ruchit had called him on phone and Ruchit had informed that Pappya wanted to settle the dispute on condition of payment of Rs. One lakh. Pappya had asked Ruchit to convey this message to Pravin and so, Ruchit had conveyed that message to Pravin. They were asked to come to a particular place and Ruchit had informed to Pravin that the accused like Sunil, Gani, Chingya, present applicants and others had already arrived to the spot. When Pravin informed about the message of Ruchit to his father Vilas, Vilas advised Pravin not to go to Pappya. Pappya said that Ruchit had already reached there and so, it was necessary for him to go there and by saying so, he left home. On that night, Vilas tried to contact Pravin on mobile phone, but Pravin could not be contacted.

4. On the next day i.e. on 15.6.2011 at about 6.00 a.m. one Dilip Gondkar informed Vilas on phone that Pravin and Ruchit were lying in nude condition near Pushpanjali hotel and they were in injured condition and they were unconscious. Vilas rushed to the spot and with the help of some persons, both Pravin and Ruchit were shifted to Sai Baba Hospital. Doctors of the hospital declared that Pravin and Ruchit were already dead. On 15.6.2011 itself Vilas gave report against Pappya and present applicants and some other accused on the basis of information which was supplied to him by Pravin. Vilas expressed suspicion against these accused for murder of Pravin and Ruchit. Thus, the F.I.R. was given immediately against the present applicants and Pappya and motive for the offence was also informed to the police.

5. It is not disputed that on 15.6.2011 two dead bodies were found in nude condition at aforesaid place and both Pravin and Ruchit died homicidal death. On the body of Ruchit, 13 injuries were found and he died due to injuries caused to vital organs. Pravin died due to injuries sustained to head, brain and there were 17 injuries found on his dead body. The evidence on the record shows that the dead bodies were noticed at aforesaid spot after 5.30 a.m. of 15.6.2011 by PW 35. Thus, as per the case of prosecution, both Pravin and Ruchit were murdered after 10.00 p.m. of 14.6.2011 and before 5.30 a.m. of 15.6.2011.

6. Doctor has given opinion that the injuries were caused by hard and blunt object and weapons like bamboo sticks, iron pipe, wooden log, fan belt were used. These weapons which were recovered during investigation of the present matter were confronted to the doctor and doctor has given evidence that such weapons can cause the injuries. Blood was found on most of the weapons and this is circumstantial evidence in addition to other circumstances.

7. The confessional statement of accused No. 8 Chingya was recorded under section 18 of the Act on 3.10.2011. PW 40 District Superintendent of Police has given evidence on this statement and that statement is proved as Exh. 474. The record shows that only during trial, by giving suggestion this statement was retracted. The record shows that on 4.10.2011 accused No. 8 was produced before Chief Judicial Magistrate (CJM) for verification of Exh. 474 and he had admitted before CJM that he had given such statement. Thus, from 2011 to 2017 the statement was not retracted even when he was continuously produced before the Court on the dates fixed for various purposes. In Exh. 474, the role played by each accused is described including the role played by the present applicants which was active role.

8. The place where the incident took place was shown by accused Sagar. From that place, some weapons like bamboo sticks, wooden log, iron pipe and rubber belt having blood stains were recovered. Some clothes of two deceased in burnt condition were recovered. The hook of the pant belt of one deceased was recovered and the recovery is made on 16.6.2011. Thus, even prior to the statement of accused No. 8, the spot where the murders were committed, was discovered and the recovery of incriminating articles was made. This record, statement of Sagar and discovery of the articles is proved in the evidence of panch witnesses and police officer. The hook of the pant belt is identified by father of the deceased. The underpant of deceased Ruchit which was recovered from this spot was also identified by the father of deceased Ruchit. Thus, the hook of the belt of Pravin is identified by Vilas and underpant of deceased Ruchit Patni is identified by father of Ruchit. This is circumstantial evidence and it is corroborating the retractive statement of accused No. 8.

9. On 16.6.2011 motorcycle of deceased Pravin came to be discovered on the basis of statement of accused Sagar. The statement of Sagar and the discovery of motorcycle is proved in the evidence of panch witness and that document is at Exh. 275.

10. There is evidence on arrest of four accused persons on 16.6.2011. They were intercepted after giving chase to them when they were proceeding in four wheeler. Already information was received against them and vehicle as other accused were arrested. It is already observed that the names of most of the accused were already given in the F.I.R. itself. After interception of the vehicle when four accused were taken in custody, human blood was found on their clothes. Their mobile handsets were recovered from the four wheeler. In one mobile handset, in photo gallery, photographs of major portion of the incident were found and they are retrieved and they were produced before the Court. The photographs show that the deceased were forced to do unnatural sexual act against each other and the photographs also indicate that some of the accused, whose faces are not appearing in the photographs, had compelled the two deceased to help the accused in doing some sexual acts. Pistol and cookery were also recovered from the vehicle. Accused like Salim, Vinod and Ramchandra were found in the four wheeler when the vehicle was intercepted.

11. PW 26 Naeem has given evidence that on the night between 14.6.2011 and 15.6.2011 two persons had hired his auto and they had shifted two nude persons from foot-path of road towards Pushpanjali hotel. Though he did not give evidence against particular accused, the evidence of aforesaid nature given by rickshaw driver is consistent with the other circumstances including the statement given under section 18 by one accused.

12. The evidence of Avinash (PW 27) that aforesaid four wheeler Scorpio vehicle was given on rent basis to accused No. 1 Pappya is there and this vehicle was intercepted by police on 16.6.2011. This is again incriminating circumstance and can be considered against Pappya and other accused by using statement given under section 18 of the Act.

13. The aforesaid discussion shows that the statement of accused No. 8 given under section 18 of the Act has corroboration of many circumstances mentioned above. The names of present applicants were mentioned in the F.I.R. and the role played by them is explained in the confessional statement.

14. The learned APP placed reliance on following cases in support of his submission that even retracted confessions can be used for basing conviction if there is evidence to corroborate them. They are as under:-

(i) AIR 1959 SC 1 (V 46 C 1) [Ram Prakash vs. The State of Punjab],

(ii) AIR 2010 SC (Supp) 884 [Mohd. Farooq Abdul Gafur & Anr. Vs. State of Maharashtra].

15. The learned counsel for present applicants, accused placed reliance on the case reported as AIR 2005 (SC) 2277 [Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra]. It was the case under the provisions of the Act. The learned counsel submitted that applicant Gani was involved in only one case and that is the present case with the main accused and so, the provisions of the Act cannot be used against him. On this point, the learned APP placed reliance on the observations made by this Court in Criminal Appeal Nos. 34/2019 [Suryakant Mule Vs. The State of Maharashtra and Anr.] and 222/2019 [Kishor Dandwate Vs. The State of Maharashtra] decided on 29.3.2019. In the case reported as 2009 ALL MR (Cri) 1903 [Govind Sakharam Ubhe Vs. State of Maharashtra], this Court had considered almost all cases. The case of Govind cited supra was also considered by this Court in Criminal Appeal No. 222/2019 and on this point, this Court had made following observations:-

“6. The learned counsel for appellants placed reliance on some observations made by the Apex Court in the cases reported as AIR 2005 (SC) 2277 [Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra], 2011 ALL MR (Cri) 2100 (Bombay High Court) [State of Maharashtra Vs. Rahul Ramchandra Taru], 2007 (1) W.L.N. 118 (S.C.) [State of Maharashtra Vs. Lalit Somdatta Nagpal & Anr.] and MANU/SC/0266/2014 [Mahipal Singh Vs. C.B.I. and Ors.]. The learned counsel took this Court through the definitions of the terms like 'continuing unlawful activity', 'organised crime' and organised crime syndicate' given in section 2 of the Act. He submitted that in view of the definition of 'continuing unlawful activity' given in section 2 (d), unless there are two chargesheets filed in respect of organised crime, the provisions of the Act cannot be used against him. On the other hand, the learned APP submitted that the definition of 'organised crime syndicate' given in section 2 (f) of the Act shows that it is not necessary that all the members of the crime syndicate need to get involved in all the crimes which is the activity of syndicate. He submitted that the members of the crime syndicate may act singly or collectively in different offences and what is required to be considered is whether there was organised crime syndicate and the person who is before the Court had acted as either singly or collectively as member of that syndicate. There is force in the submissions made by the learned APP. In the case reported as 2009 ALL MR (Cri) 1903 [Govind Sakharam Ubhe Vs. State of Maharashtra], this Court considered almost all the cases on which reliance was placed by the learned counsel for appellant and this Court has observed as follows :-

“39. The submission on behalf of the appellant is that even though all the four accused namely, A, B, C and D may be members of the organized crime syndicate since against each of the accused not more than one charge-sheet is filed, it cannot be held that they are engaged in continuing unlawful activity as contemplated under Section 2(1)(d) of the MCOCA. Apart from the reasons which we have given hereinabove as to why such a construction is not possible, having regard to the object with which the MCOCA was enacted, namely to make special provisions for prevention and control of organized crime syndicate and for coping with criminal activity by organized crime syndicate, in our opinion, Section 2 (1)(d) cannot be so construed. Such a construction will defeat the object of the MCOCA. What is contemplated under Section 2(1)(d) of the MCOCA is that activities prohibited by law for the time being in force which are punishable as described therein have been undertaken either singly or jointly as a member of organized crime syndicate and in respect of which more than one charge-sheets have been filed. Stress is on the unlawful activities committed by the organized crime syndicate. Requirement of one or more charge-sheet is qua the unlawful activities of the organized crime syndicate.”

In view of the aforesaid observations, this Court holds that it cannot be said that the provisions of the Act are not applicable as against accused Gani.

16. Reliance was placed by the learned counsel for applicants on some observations made by the Apex Court in the case reported as AIR 2013 SC 3817 [Sujit Biswas Vs. State of Assam]. This case is on circumstantial evidence. The facts and circumstances of each and every case are always different and so, the observations made in that matter are of no use in the present matter in view of the facts of the prese

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nt matter. 17. The applicants are convicted for aforesaid offences. When there is conviction, the presumption of innocence is not available to such accused. The provision of section 389 of Criminal Procedure Code providing for suspension of sentence and releasing the convict on bail shows that the reasons for granting bail need to be recorded by the Court if bail is granted by the Court in appeal. Thus, the Court cannot grant bail as of routein in appeal ad special case is required to be made out. Further, in the case like present one, when there is the provision like section 21(4) of the Act, the Court cannot act liberally. In section 21(4) of the Act, there are following conditions:- “(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act, shall if in custody, be released on bail or on his own bond, unless - (a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.” After conviction, such condition gets more force and due to such provision, it becomes very difficult for the Court to grant the bail. For all these reasons, this Court holds that it is not fit case to suspend the sentence and grant the bail. In the result, all the three applications stand rejected.
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