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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 111 OF 2022
Shakir Nasir Pathan @ Motha Pathan ..Appellant
State of Maharashtra ..Respondent
IN
CRIMINAL APPEAL NO. 111 OF 2022
……...
Ganesh Suresh Wagh @ Ganya Kavlya ..Appellant
Mukesh Dalpatsingh Rajput ..Appellant
Mr. Ganesh Gole a/w. Ateet Shirodkar a/w. Kunjan Makwana a/w.
Bhavin Jain a/w. Viraj Shelatkar for Appellant in Appeal
No.917/2021.
Mr. Aniket Nikam i/b. Vivek N. Arote for Appellant in Appeal
No.119 of 2022.
2 of 37 1-apeal-111-22+ (J)
Smt. M. R. Tidke, APP for State/Respondent.
Mr. J. B. Shirsath, P.I. (I.O.) Ambad police station, Nashik city.
ORAL JUDGMENT
1. All these Appeals are decided by this common Judgment because they arise out of the same impugned Judgment and order of conviction and sentence. The impugned Judgment and order is passed by the Special Judge under MCOCA, Nashik, in Special Case No.5 of 2016. The Appellant Ganesh Suresh Wagh @ Ganya Kavlya in Criminal Appeal No.119 of 2022 was the original accused No.1. The Appellant Mukesh Dalpatsingh Rajput in Criminal Appeal No.917 of 2021 was the original Accused No.4 and the Appellant Shakir Nasir Pathan @ Motha Pathan in Criminal Appeal No.111 of 2022 was the original Accused No.5. For the sake of convenience, the Appellants are referred to by their names, in the following discussion. There were in all six accused. The Appellants were convicted and sentenced as follows: i) The Appellants Ganesh and Shakir were 3 of 37 1-apeal-111-22+ (J) convicted for commission of offence punishable under section 307 r/w. 34 of the I.P.C. and were sentenced to suffer R.I. for 10 years and to pay a fine of Rs.3,000/- each and in default to suffer R.I. for six months. ii) The Appellants Ganesh and Shakir were under section 387 r/w. 34 of the I.P.C. and were sentenced to suffer R.I. for 5 years and to pay a fine of Rs.2,000/- each and in default to suffer R.I. for two months. iii) The Appellants Ganesh and Shakir were further under section 506(II) r/w. 34 of the I.P.C. and were sentenced to suffer R.I. for 6 months and to pay a fine of Rs.500/- each and in default to suffer S.I. for one month. iv) The Appellants Ganesh and Shakir were further under section 426 r/w. 34 of the I.P.C. and were sentenced to suffer R.I. for 1 month. v) The Appellants Ganesh and Shakir were further under section 397 of the I.P.C. and were sentenced to suffer R.I. for 8 years and to pay a fine of Rs.3000/- each and in default to suffer R.I. for six months. vi) The Appellants Ganesh and Shakir were further under section 3(1)(ii) of the Maharashtra Control of Organised Crime Act, 1999 and were sentenced to suffer R.I. for 10 years and to pay a fine of Rs.[5] lakhs each and in default to suffer R.I. for two years. 4 of 37 1-apeal-111-22+ (J) vii) The Appellants Ganesh, Mukesh and Shakir were further convicted for commission of offence punishable under section 3(4) of the Maharashtra Control of Organised Crime Act, 1999 and were sentenced to suffer R.I. for 8 years and to pay a fine of Rs.[5] lakhs each and in default to suffer R.I. for two years. They were acquitted from all the other charges. They were granted set off U/s.428 of the Cr.p.c. All the sentenced were directed to run concurrently. All the other accused were acquitted of all the charges.
2. Heard Mr. Tuushar Sonawane, learned counsel for the Appellant in Appeal No.111 of 2022, Mr. Ganesh Gole, learned counsel for the Appellant in Criminal Appeal No.917 of 2021, Mr. Aniket Nikam, learned counsel for the Appellant in Criminal Appeal No.119 of 2022 and Smt. M. R. Tidke, learned APP for the State/Respondent.
3. The prosecution case is that, all the accused were members of an organised crime syndicate led by the Appellant Ganesh. The incident, leading to this prosecution, had occurred on 31.05.2016 at about 3:30p.m. outside a wine shop. The Appellants 5 of 37 1-apeal-111-22+ (J) and others approached the victim Shubham Bhavsar outside that wine shop. The Appellant Shakir showed him a pistol. He put it on the left side of the victim Shubham’s head and threatened him. The other Appellants Ganesh and Mukesh assaulted him with iron rods. The other accused Saidya Shaikh assaulted him with a sword. He sustained injuries. They removed Rs.7300/- from him. They threatened him. It is alleged that the accused were knowing that, Shubham’s father had sold his property and therefore, some money was available with Shubham. The accused demanded that money. The people gathered at the spot, therefore, the accused left. The victim Shubham went to the hospital, took treatment and then lodged his F.I.R. The investigation was carried out. During investigation it was revealed that the said offence was committed as a continuing unlawful activity by an organised crime syndicate. Therefore, prior approval U/s.23(1) of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as ‘MCOCA’) for investigating the crime under the provisions of the MCOCA was obtained. The designated officer carried out the investigation and filed the charge-sheet against the accused. There were more than 6 of 37 1-apeal-111-22+ (J) 20 offences against the crime syndicate. All of them were punishable with three years or more punishment. Cognizance of those offences was taken by the competent Courts, and therefore, the provisions of the MCOCA were applied. The charge-sheet was filed, the sanction U/s.23(2) of the MCOCA was obtained and all the accused faced the trial before the Special Court.
4. During the trial, the prosecution examined 24 witnesses including the victim, the two eye witnesses i.e. the shop owner of the wine shop and his employee, the other victims in some other incidents, the panchas, the investigating officer, the authority granting approval U/s.23(1) of the MCOCA, the sanctioning authority granting sanction U/s.23(2) of the MCOCA and the Medical Officer. At the conclusion of the trial, the learned Special Judge recorded the order of conviction and sentence, as mentioned earlier.
THE VICTIM AND THE EYE WITNESSES
5. The prosecution case was revealed through the evidence of PW-11 Shubham Bhavsar, who was the victim in this case. He 7 of 37 1-apeal-111-22+ (J) has deposed that, at the relevant time in the year 2016, he was residing at Nashik. His father was running a grocery shop. He himself was in the business of selling fruits. On 31.05.2016, he was passing from near Raja Babu wine shop. The Appellant Shakir called him. He was accompanied by the Appellant Ganesh and accused Kiran Penmahale, Saidya Shaikh and Devdatta Ghatole. Shakir demanded Rs.[5] lakhs from him. He threatened that, if Rs.[5] lakhs were not given in the evening, he would kill Shubham and his parents. Ganesh told him that, since his house was sold, he had money. Shakir put a pistol on the left side of Shubham’s head and threatened him. After that, Ganesh and Mukesh assaulted him with iron rods. Saidya Shaikh assaulted him with a sword. He sustained injuries and his shirt was torn. The owner of Raja Babu wine shop separated the quarrel. The accused took Rs.7300/- from his pant pocket and they left. During the examination in chief, he identified the appellants Shakir and Ganesh. However, when he pointed out to an accused as the appellant Mukesh, he turned out to be another accused Hemant. Then again, he tried to identify Mukesh by pointing out to another accused, but he turned out to be 8 of 37 1-apeal-111-22+ (J) Devdatta Ghatole. At the third time, he pointed out to Mukesh and then identified him. He further deposed that, after the incident, he went to Civil Hospital. He was treated there. He returned home and told about the incident to his father. After that, they approached Ambad police station and lodged their F.I.R. which was registered vide the C.R.No.132 of 2016. A copy of the F.I.R. is produced on record at Exhibit-158. He knew the accused as they were residing in his area. On the next day of lodging of the F.I.R., he showed the spot to the police. The F.I.R. was lodged on 01.06.2016 at about 2:00a.m. On 02.06.2016, at about 6:00p.m., two to three unknown persons came to his house and threatened him to withdraw the complaint lodged by him against the present appellants. PW-11 then lodged his N.C. which is produced on record at Exhibit-159. On 16.06.2016 also he was threatened by some unknown persons. He produced his clothes before the police, which he had worn at the time of the incident. He identified those clothes in the court. In the cross-examination, he deposed that, he did not have detailed information about the transaction regarding selling 9 of 37 1-apeal-111-22+ (J) of house by his father. The distance between his house and Raja Babu wine shop was about 1Km. The civil hospital was at a distance of 3 and half kilometers. Before going to the hospital, he did not contact his family members. He did not inform about the incident to the police chowky situated at Civil hospital. He did not tell the Doctor as to how he received the injuries. In the crossexamination, certain questions were put to him regarding his earlier transactions with the Appellant Shakir. He deposed that, Shakir had forced him to execute a writing regarding some loan advanced by Shakir to him. He did not give details of that transaction. On 18.05.2015, he had purchased a stamp paper of Rs.100/- regarding purchase of a vehicle. That was in connection with the Appellant Shakir. But again he stated that, it was under threats. He denied the suggestion that, he did not want to return the money given by Shakir and, therefore, he lodged this false case. He admitted that, he did not know the full name of Mukesh and, therefore, did not give his full name and his description in the F.I.R. He also deposed that a particular phone number was used by him, but subsequently Shakir used that phone number by giving 10 of 37 1-apeal-111-22+ (J) threats to him.
6. PW-9 Karbhari Pawar was an employee of Raja Babu wine shop. He has deposed that, Shakir, Ganesh and his friends used to come to their wine shop. They used to take beer, but they never used to pay. He identified Shakir and Ganesh in the Court. On the date of the incident, Shakir, Ganesh and one Chavan were standing outside their shop and Shubham was proceeding from there. Shakir called him and asked for money. He demanded Rs.[5] lakhs from Shubham. When Shubham refused, Ganesh told him that, Shubham had sold his house and therefore, had money. After that, Shakir, Ganesh and others assaulted Shubham with iron rods. Thereafter, Rajabhau Deshmukh, owner of the wine shop came there and separated the quarrel. In the cross-examination, he deposed that, there were flats above the wine shop and there was a shed on both sides of the wine shop. On that day itself, the police made enquiries with his owner and he himself.
7. PW-14 Raosaheb Deshmukh was the wine shop owner. In 11 of 37 1-apeal-111-22+ (J) the initial part of his deposition, he described as to how the appellants Shakir, Ganesh, Mukesh and accused Sonu Pawar used to come to his shop and used to take beer without making payment. On 31.05.2016, at the time of the incident, Shubham came there. Shakir called him. There was exchange of hot words. Shakir slapped Shubham. There was a quarrel between Shakir and Shubham. This witness has named two more accused Ajinkya Chavan and Dahashat. Shakir was demanding Rs.[5] lakhs. PW-14 tried to pacify them, but the quarrel escalated. Shubham was assaulted by iron rods. There was bleeding from his ear. This witness identified the appellants Shakir, Mukesh and Ganesh. However, he has not mentioned about the presence of Mukesh and Ganesh at the time of incident of assault on Shubham on 31.05.2016. He deposed that, his statement was recorded and the police had seen the CCTV footage. They seized his register showing outstanding dues from the accused who had taken beer, but had not made the payment in the past. In the cross-examination, he deposed that, there were residential houses above his shop. There were CCTV cameras 12 of 37 1-apeal-111-22+ (J) installed inside and outside his shop. The police had seen the CCTV footage in his presence. It was seized by the police. He did not inform about the incident on his own to Ambad police station on 31.05.2016. The police came to him on the next day and then took the footage. According to him, the police recorded his statement on the next day of the incident. There were some improvements from his police statement regarding some incident from the year 2015, but that incident is not relevant to the present subject matter as it was not involving the victim Shubham as he was assaulted on 31.05.2016. He was further cross-examined in respect of his dues which the accused had not paid after taking beer.
WITNESSES REGARDING SOME PAST INCIDENTS
8. The prosecution has examined few witnesses who are not really relevant in respect of the incident dated 31.05.2016, but they have deposed about some prior incidents where the members of this gang had committed some offences in respect of those witnesses. Those witnesses are not really material witnesses 13 of 37 1-apeal-111-22+ (J) because the prosecution cannot establish that the accused were the members of an organised crime syndicate through their evidence. This fact could only be established by proving that there were more than one charge-sheets against the accused and that those offences were punishable for three years or more, and that the competent Courts had taken cognizance of those offences. However, since the prosecution has examined them, their evidence is just noted herein below.
9. PW-12 Aniket Zite has deposed about the incident dated 29.02.2016 when his driver was abducted and the money was demanded by the Appellant Ganesh and others. However, his evidence does not show that any F.I.R. was lodged in respect of that incident and that any investigation was carried out. This particular incident is not a part of the charge in this case and, therefore, this incident cannot be used to establish that the appellants had committed the offence on 31.05.2016 against PW-11 Shubham as part of their continuing unlawful activity.
10. PW-15 Vijay Sanap has deposed about the incident that 14 of 37 1-apeal-111-22+ (J) had taken place in October 2015, in which, he was abducted and was taken to Ghoti. The abductors were demanding Rs.20 lakhs. According to him, the amount was demanded telephonically by one Shakir Pathan. He did not fully support the prosecution and, therefore, he was cross-examined by the learned APP. Again, this incident has nothing to do with the incident of assault and extortion committed against the victim Shubham.
11. PW-16 Ganesh Wani was a rickshaw driver. He has deposed that, there was one gang by the name Tipper gang in CIDCO area. He knew that, Shakir, Ganesh and Mukesh were the members of that gang. He identified Shakir and Mukesh in the Court. But his evidence is vague and it does not take the prosecution case any further.
12. PW-17 Yogesh Gaikwad has deposed about the incident dated 28.12.2015, in which, the Appellant Shakir had abducted him and he was helped by the accused Mukesh. Again here, no F.I.R. was lodged and there is nothing to show that any investigation was carried out. 15 of 37 1-apeal-111-22+ (J)
13. PW-18 Ravindra Nikam was a rickshaw driver. He did not support the prosecution case and he was declared hostile.
14. PW-19 Rahul Gangurde was another rickshaw driver. He also did not support the prosecution case and he was declared hostile. His evidence was about some unrelated incidents.
OTHER RELEVANT WITNESSES
15. PW-10 Vijay Bhavsar was the father of the victim Shubham. He has deposed that, in 2016 he sold his house for about Rs.16 lakhs. On 31.05.2016, at about 2:00p.m. Shakir came to his house and asked for Shubham. He threatened to kill Shubham. At about 5:00p.m. Shubham returned home. He had sustained injuries on his chest. His shirt and baniyan were torn. Shubham told him about the incident. Shubham lodged the F.I.R. This witness identified Shakir and Ganesh. In the cross-examination, he was asked about his earning capacity. He deposed that, Ambad police station was at a distance of 10 minutes from his house. He and his son approached Ambad police station at about 5:30p.m. on that day. After that, 16 of 37 1-apeal-111-22+ (J) they went to hospital. Then they went back to the police station on 02.06.2016.
16. PW-13 Dr. Chittaranjan Thakare is an important witness. He had medically examined the victim Shubham at about 4:30p.m. on 31.05.2016 at Nashik Civil Hospital. He had found that the victim had suffered blunt trauma over the chest and an abrasion over the chest of the size 6cm x 1cm. He was shown a sword having blunt and sharp sides. According to him, that injury was possible by that sword. There was no other injury on Shubham.
PANCHA WITNESSES
17. PW-1 Gopal Patil was the pancha for spot panchanama. He has deposed that, Shubham showed the spot on 01.06.2016. The spot panchanama was produced on record at Exhibit-119. In the cross-examination, he deposed that, there was a CCTV camera installed at the shutter of the beer shop.
18. PW-2 Deepak Aher was the pancha in whose presence the victim had produced his clothes on 02.06.2016. 17 of 37 1-apeal-111-22+ (J) In the cross-examination, he admitted that, before he reached the police station, the clothes were already before the police and he did not know from where they were brought.
19. PW-3 Sunil Khare was another pancha in whose presence the Appellant Shakir gave his memorandum statement that he would produce the money, the weapon i.e. the country made firearm and also the rods. Shakir led the pancha and the police to his house and produced Rs.1500/-, the firearm and two iron rods. In the cross-examination, he admitted that Shakir had not told the place from where he would produce those articles and that the panchanama was dictated in the police station.
20. PW-4 Ganesh Shelar was a pancha in whose presence one Swift Dzire car was seized. However, there is no connecting evidence about that car with the present subject matter.
21. PW-5 Nilesh Khalkar was another pancha. He was declared hostile. He was in respect of seizure of one TVS motorcycle and one sword produced by the accused Kalim Shaikh. 18 of 37 1-apeal-111-22+ (J)
22. PW-6 Vaibhav Mahajan was a pancha for the house search of the Appellant Ganesh. In his presence, one packet was seized from Ganesh’s mother which contained one bullet and one cartridge. This recovery was not at the instance of the appellant Ganesh but was effected during house search, from the mother of the appellant Ganesh.
23. PW-8 Vinod Chavan was a pancha in whose presence one Toyota Etios car was seized. Again, there was no connection of this particular car with the present subject matter.
POLICE OFFICERS
24. PW-23 PSI Vishal More was attached to Ambad police station. He recorded the F.I.R. given by Shubham and registered the offence vide the C.R.No.132 of 2016. On 15.06.2016, ACP Atul Zende handed over sword, seized in the offence to him. He collected the injury certificate. He conducted house search of Ganesh and seized those bullets. Nothing much came out from his cross-examination.
25. PW-22 API Ravindra Sahare was another investigating 19 of 37 1-apeal-111-22+ (J) officer. He had conducted the spot panchanama, arrested the appellants and the other accused and effected recovery at the instance of the Appellant Shakir. He found that, there were 22 offences registered against Shakir and 10 offences registered against Mukesh. Therefore, he prepared the proposal for applying MCOCA to this investigation and forwarded it to the Commissioner of Police through the Senior P.I. Dinesh Bardekar. The proposal is produced on record at Exhibit-225. There were 21 serious offences registered against the Appellant Ganesh. He was described as the gang leader. Those offences were within 10 years of the date of the offence i.e. 31.05.2016.
26. PW-20 S. Jagannathan was the Commissioner of Nashik from April 2015 to August 2016. He accorded the approval U/s.23(1) of the MCOCA to apply the provisions of the MCOCA to the investigation in C.R.No.132 of 2016 of Ambad police station. According to him, all the necessary ingredients for application of MCOCA were present in the proposal.
27. PW-21 Sharda Prasad Yadav was the Additional Director 20 of 37 1-apeal-111-22+ (J) General of Police (Law and Order) from 02.09.2015 to 01.02.2017. He accorded the sanction U/s.23(2) of the MCOCA to prosecute these accused under the provisions of the MCOCA. It may be noted here that, there is no dispute about the validity of either the approval U/s.23(1) of the MCOCA or the sanction U/s.23(2) of the MCOCA accorded in this case, by the defence.
28. PW-24 ACP Atul Zende had conducted the investigation after application of the MCOCA provisions. He was the ACP, Nashik, Division-3. He has deposed about the investigation which is referred to herein above. He also caused the statements of the witnesses to be recorded U/s.164 of the Cr.p.c., particularly, of the victims in respect of the other incidents. He collected the records in respect of the appellants and other members of the organised crime syndicate. Those records contain charge-sheets and the orders of cognizance taken by the competent courts. This important record is produced on record from Exhibit-243 to Exhibit-275. From this record, it is clear that, more than one 21 of 37 1-apeal-111-22+ (J) charge-sheets involving the offences punishable for three years or more were pending against the various members of the organised crime syndicate; of which, cognizance was taken by the competent courts. This, in short, is the evidence led by the prosecution.
29. The Appellant Shakir examined his wife as the only defence witness to show that the Appellant was not in Nashik on 31.05.2016 and had gone to Ajmer. She was examined as the defence witness No.1. She has produced the train tickets and some photographs.
DEFENCE ARGUMENTS
30. Mr. Tuushar Sonawane, learned counsel appearing for the Appellant Shakir, made the following submissions: The victim Shubham himself and the beer shop owner had their independent grudge against the appellant Shakir. The cross-examination of Shubham showed that, there was previous transaction involving loan of the four wheeler and because of that 22 of 37 1-apeal-111-22+ (J) dispute Shubham had grudge against the appellant. There are allegations that the appellant Shakir and others used to take beer in large quantity from the beer shop of Raosaheb Deshmukh without making any payment. Therefore, PW-14 Raosaheb Deshmukh and PW-9 Karbhari Pawar working in the shop had their own grudge against the appellant Shakir. Therefore, he was falsely implicated. There was delay in lodging the F.I.R. He submitted that, Section 307 of the I.P.C. is not made out, therefore, conviction U/s.307 of the I.P.C. is required to be set aside. The injury suffered by Shubham was quite minor. The police had, admittedly, seen the CCTV footage, but it was not produced and there is no further reference to that CCTV. Therefore, adverse inference needs to be drawn. Learned counsel relied on the train tickets and the photographs produced on record by the defence witness. He submitted that the evidence of the defence witness shows that the appellant Shakir has provided his alibi.
31. Mr. Aniket Nikam, learned counsel for the Appellant Ganesh adopted these submissions and added that the evidence shows that the incident had taken place in a crowded locality and 23 of 37 1-apeal-111-22+ (J) no other independent witness was examined. PW-14 wine shop owner Raosaheb Deshmukh does not name the Appellant Ganesh in respect of the incident dated 31.05.2016. Their statements are recorded belatedly on 03.06.2016.
32. Mr. Ganesh Gole, learned counsel appearing for the Appellant Mukesh submitted that, PW-9 and PW-14 have not named the appellant Mukesh at all in respect of the incident dated 31.05.2016. As far as, PW-11 Shubham is concerned, he has not properly identified the appellant Mukesh in the Court. His evidence shows that, on two occasions, he identified some other accused as the appellant Mukesh and only on the third occasion he could identify the appellant Mukesh. This shows that, PW-11 was never sure about the identity of the appellant Mukesh and, therefore, he is falsely implicated. He further submitted that the learned trial Judge himself has observed in paragraph-198 of the impugned judgment that his involvement in the offence committed under IPC sections was not established by the prosecution. However, there was material regarding his previous offences and, therefore, he was convicted U/s.3(4) of the MCOCA. Learned 24 of 37 1-apeal-111-22+ (J) counsel submitted that, this approach of the learned Trial Judge is wrong and if the appellant Mukesh was acquitted from the IPC offences, he could not have been convicted U/s.3(4) of the MCOCA.
ARGUMENTS OF THE LEARNED A.P.P.
33. Learned APP Mrs. Tidke relied on the evidence of PW-9, PW-11 and PW-14 to contend that the prosecution has proved its case. There was an attempt to commit murder but only because people gathered at the spot, PW-11 was saved. PW-11 Shubham’s evidence is supported by the medical evidence. The incidents involving other witnesses show that all the accused have committed the offence of continuing unlawful activity as members of an organised crime syndicate. She supported the reasons given by the learned Trial Judge.
DISCUSSION BY THE LEARNED TRIAL JUDGE
34. The learned Trial Judge has considered all these submissions in his Judgment. He has discussed the alibi given by the appellant Shakir and had observed that the photographs were 25 of 37 1-apeal-111-22+ (J) not properly proved as the certificate U/s.65B of the Evidence Act was not given as the photographs were taken by a mobile phone. There was nothing to show that the appellant Shakir had travelled on the same train tickets. He has observed that, there was hardly any delay in lodging the F.I.R. He, however, acquitted the appellants from the allegations of commission of offence under the Arms Act, in the absence of requisite sanctions. He further observed that, the past incident of taking beer without making payment was not properly proved by the prosecution. However, he believed the eye witnesses in respect of the main incident dated 31.05.2016 and convicted and sentenced the appellants.
REASONS AND CONCLUSION
35. From the above discussion, it is clear that, as far as, the main incident of assault on and extortion from PW-11 is concerned, there are three witnesses including the victim himself. PW-11 Shubham had named Shakir, Ganesh and Mukesh and had attributed specific roles to them. However, as rightly submitted by the learned counsel for the appellant Mukesh, he had made serious 26 of 37 1-apeal-111-22+ (J) mistakes in identifying the appellant Mukesh, for which, even the Trial Court has given the benefit of doubt to the appellant Mukesh. I see no reason to take a different view. Therefore, it must be held that the victim Shubham has not properly identified the appellant Mukesh. The other two eye witnesses have not named him in respect of the incident dated 31.05.2016. Therefore, it will have to be held that the Appellant Mukesh had no concern and was not involved in the incident dated 31.05.2016, wherein, Shubham was assaulted and his money was extracted from him.
36. However, the case against Shakir and Ganesh is proved through the evidence of PW-11 Shubham, PW-9 Karbhari Pawar and PW-14 Raosaheb Deshmukh. Though, PW-14 has not named the Appellant Ganesh in respect of the incident dated 31.05.2016, PW-9 and PW-11 have consistently deposed about his presence and role. There is consistent evidence and, in particular, there is evidence of the victim himself regarding the role played by Ganesh and Shakir. The ocular evidence is supported by the medical evidence showing injuries suffered by Shubham on 31.05.2016. There is hardly any delay in lodging the F.I.R. The 27 of 37 1-apeal-111-22+ (J) victim had immediately gone to the hospital.
37. The evidence of the defence witness regarding the alibi does not inspire confidence. There is nothing to show that Shakir had travelled on those tickets. The photographs are not proved in accordance with law; as rightly held by the learned Trial Judge.
38. Therefore, it can safely be held that the prosecution has proved that both these Appellants Ganesh and Shakir had taken part in the incident dated 31.05.2016, wherein, victim Shubham was assaulted. His amount of Rs.7300/- was robbed from him.
39. The question is, which IPC offence is committed. The description of the incident shows that the ingredients of Section 387 of the IPC, as well as, Section 397 of the IPC are made out. However, from the evidence and in particular from the medical evidence, it cannot be said that ingredients of Section 307 are made out. The description shows that the accused were more in numbers. They had weapons like iron rods and, in fact, appellant Shakir had a firearm with him and yet only one simple injury and one blunt trauma was caused to the victim Shubham. The accused 28 of 37 1-apeal-111-22+ (J) had sufficient opportunity and had weapons to commit murder if they had intention to do so. From the evidence, the prosecution has not proved that the accused including the appellants Ganesh and Shakir had any intention to commit the offence U/s.307 of the I.P.C. Therefore, the conviction recorded for commission for the offence U/s.307 of the IPC will have to be set aside. On the other hand, since the ingredients of Sections 387, 397, 506(II) and 426 of the I.P.C. are sufficiently proved, the conviction recorded under these sections will have to be upheld. The victim was threatened, he was assaulted, his money was taken away and some further amount was demanded from him. All these factors satisfy the requirement of Section 387, 397, 426 and 506(II) of the I.P.C. The deadly weapons like iron rods were used. The firearm was not fired, but the victim was assaulted with the iron rods causing hurt.
40. The next question is regarding applicability of the MCOCA. The prosecution has brought on record the entire history of offences against the appellants. As mentioned earlier, there is no dispute about the validity of the approval and the sanction under 29 of 37 1-apeal-111-22+ (J) the MCOCA. There were more than one charge-sheets against the organised crime syndicate led by the appellant Ganesh. The offences were punishable for three years or more imprisonment and the cognizance was taken by the competent courts. Therefore, the offences under MCOCA, as far as, Appellant Ganesh and Shakir are concerned, are proved because the incident dated 31.05.2016 was part of the continuing unlawful activity, which was committed by the members of an organised crime syndicate. This all satisfies the requirements of Section 3(1)(ii) and Section 3(4) of the MCOCA.
41. As far as, the Appellant Mukesh is concerned, since the main offence under the IPC is not proved and it is not proved by the prosecution that he was even present on 31.05.2016 at the time of commission of that particular offence, he cannot be convicted under sections 3(4) of the MCOCA. Learned counsel for the appellant Mukesh relied on the two Judgments to support his contentions. The first is State of Maharashtra Versus Shiva Alias Shivaji Ramaji Sonawane and 30 of 37 1-apeal-111-22+ (J) others[1] and other is the Judgment dated 03.08.2021 passed in Criminal Appeal No.901 of 2018 by a single Judge bench of this Court at Aurangabad bench. In both these judgments, the issue involved was slightly different. In this particular case, though all the accused are not acquitted, in fact, I am holding that the accused Nos.[1] and 5 have committed the offence on 31.05.2016 as a part of continuing unlawful activity of an organised crime syndicate. The question remains whether in such case the appellant Mukesh can be convicted only U/s.3(4) of the MCOCA. Section 3(4) of the MCOCA reads thus:
42. Therefore, the question is, whether he can be termed as ‘a member of an organised crime syndicate’ in the absence of his part in the incident dated 31.05.2016. The definition of ‘organised crime syndicate’ is provided U/s.2(f) which reads thus: “2. Definitions: (1) In this Act, unless the context otherwise requires:xxxxx xxxxx (d) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the proceeding period of ten years and that Court has taken cognizance of such offence; (e) “organised crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency; (f) “organised crime syndicate” means a group of two 32 of 37 1-apeal-111-22+ (J) or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime;” All these definitions under sections 2(1)(d), (e) and (f) are interconnected.
43. To convict a person as a member of an organised crime syndicate, the prosecution has to prove that, he was a member of such organised crime syndicate with reference to the activities of an organised crime syndicate and, in particular, to show that the activity which is the subject matter of the trial was a continuing unlawful activity. In the present trial, the prosecution has proved that the incident dated 31.05.2016 was a part of continuing unlawful activity committed on behalf of the organised crime syndicate. But the prosecution has failed to prove that Mukesh had any connection with the incident dated 31.05.2016. As far as, the past activities of Mukesh are concerned, the occasion to prove that those activities were actually committed by Mukesh and were part of the activities of an organised crime syndicate; did not arise because truthfulness of the allegations regarding those activities 33 of 37 1-apeal-111-22+ (J) was not the subject matter of the present trial. Therefore, the prosecution cannot be said to have proved that, he has committed an offence U/s.3(4) of the MCOCA. With the result, the appellant Mukesh will have to be acquitted from all the charges.
44. As far as, the other two appellants Shakir and Ganesh are concerned, their conviction U/s.307 of the I.P.C. will have to be set aside. Learned counsel for the appellants submitted that, both these appellants Ganesh and Shakir are in custody since June
2016. More than 8 years have already passed. They have already completed their substantive sentence, as far as, the other offences than the offences U/s.307 of the IPC and Section 3(1)(ii) of the MCOCA are concerned. Therefore, some leniency be shown to them.
45. Learned APP opposed these submissions considering the seriousness of the antecedents against them.
46. I have considered these submissions. The appellants Ganesh and Shakir are in custody since June 2016. The appellant Shakir was never released. The Appellant Ganesh was released for 34 of 37 1-apeal-111-22+ (J) some period. They have already completed their substantive sentence and thereafter their appeals have reached for final hearing stage. Therefore, I am inclined to show some leniency, as far as, the sentencing part is concerned. In this background, ends of the justice will be served if their substantive sentences for the offence punishable U/s.397 of the I.P.C. and for the offences U/s.3(4) and 3(1)(ii) of the MCOCA are reduced, and if their ‘in default’ sentences for non payment of fine under the MCOCA are reduced. Considering the over all circumstances and the above submissions, I am inclined to impose major sentence of 7 years of R.I. which would be minimum sentence for the offence U/s.397 of the I.P.C.
47. The Investigating Officers have taken efforts in carrying out the investigation and I record my appreciation for the manner in which the investigation was conducted.
48. Hence, the following order: O R D E R i) The Criminal Appeal No.917 of 2021 is allowed. 35 of 37 1-apeal-111-22+ (J) ii) The Appellant Mukesh Dalpatsingh Rajput is acquitted from all the charges. iii) The fine, if paid, shall be refunded to Mukesh Rajput. iv) The Appellant Mukesh Rajput, however, shall execute P. R. bond in the sum of Rs.30,000/within four weeks from today, in case the Appeal against the acquittal is preferred, to ensure his availability. v) The Criminal Appeal No.119 of 2022 and the Criminal Appeal No.111 of 2022 are partly allowed. vi) The Appellant Ganesh Suresh Wagh @ Ganya Kavlya and the Appellant Shakir Nasir Pathan @ Motha Pathan (Accused Nos.[1] and 5) are acquitted from the offence punishable U/s.307 of the I.P.C. The corresponding sentence for the offence U/s.307 of the I.P.C. is set aside. vii) The conviction of these accused Ganesh Suresh Wagh @ Ganya Kavlya and Shakir Nasir Pathan @ Motha Pathan under section 3(1)(ii) of the MCOCA is maintained. However, instead of sentence of 10 years of R.I., they are sentenced to suffer R.I. for 7 years and to pay a fine of Rs.[5] lakhs each and in default to suffer R.I. for six 36 of 37 1-apeal-111-22+ (J) months each. viii) The conviction of these accused Ganesh Suresh @ Motha Pathan under section 3(4) of the MCOCA is maintained. However, instead of sentence of 8 years of R.I., they are sentenced to suffer R.I. for 7 years and to pay a fine of Rs.[5] lakhs each and in default to suffer R.I. for six months each. ix) The conviction of these accused Ganesh Suresh @ Motha Pathan under section 387 r/w. 34 of the I.P.C. is maintained and they are sentenced to suffer R.I. for 5 years and to pay a fine of Rs.2000/- each and in default to suffer R.I. for two months each. x) The conviction of these accused Ganesh Suresh @ Motha Pathan under section 506(II) r/w. 34 of the I.P.C. is maintained and they are sentenced to suffer R.I. for 6 months and to pay a fine of Rs.500/- each and in default to suffer R.I. for one month each. xi) The conviction of these accused Ganesh Suresh 37 of 37 1-apeal-111-22+ (J) @ Motha Pathan under section 426 r/w. 34 of the I.P.C. is maintained and they are sentenced to suffer R.I. for 1 month each. xii) The conviction of these accused Ganesh Suresh @ Motha Pathan under section 397 r/w. 34 of the I.P.C. is maintained. However, instead of sentence of 8 years of R.I., they are sentenced to suffer R.I. for 7 years and to pay a fine of Rs.3000/- each and in default to suffer R.I. for six months each. xiii) All the substantive sentences are directed to run concurrently. xiv) The appellants Ganesh Suresh Wagh @ Ganya Kavlya and Shakir Nasir Pathan @ Motha Pathan shall be given benefit of set off U/s.428 of the Cr.p.c. xv) All the Appeals are disposed of. xvi) With disposal of all the Appeals, the interim application is also disposed of. (SARANG V. KOTWAL, J.)