Criminal Appeal No. 684 of 2018 · The High Court
Case Details
2024:BHC-AUG:11561-DB Cri.Appeal No.684/2018 withconnected appeals:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.684 OF 2018Farid Khan s/o Feroj KhanAge 30 years, Occ. Business,R/o Beed By Pass, Aurangabad(Presently at Yerwada Jail)… APPELLANTVERSUSThe State of Maharashtra (Copy to be served upon the Public Prosecutor at the Hon’ble High Court of Bombay,Bench at Aurangabad) … RESPONDENT.......Shri Satej S. Jadhav, Advocate holding for Shri Chaitanya C. Deshpande, Advocate for appellant Shri S.D. Ghayal, Addl. P.P. with Shri B.B. Bhise, Addl. P.P. for respondent, assisted byShri P.D. Bachate, Advocate with S/Shri A.D. Khot & Azeem Qureshi, Advocates for complainant. ....…WITHCRIMINAL APPEAL NO.685 OF 2018Numan Khan s/o Abdul Kayyum KhanAge 28 years, Occ. Business,R/o Asefiya Colony, Aurangabad(Presently inJail)… APPELLANTVERSUSThe State of Maharashtra (Copy to be served upon the Cri.Appeal No.684/2018 withconnected appeals:: 2 ::Public Prosecutor at the Hon’ble High Court of Bombay,Bench at Aurangabad) … RESPONDENT.......Shri Satej S. Jadhav, Advocate holding for Shri Zia-ul-Mustafa, Advocate for appellant Shri S.D. Ghayal, Addl. P.P. with Shri B.B. Bhise, Addl. P.P. for respondent, assisted byShri P.D. Bachate, Advocate with S/Shri A.D. Khot & Azeem Qureshi, Advocates for complainant. ....…WITHCRIMINAL APPEAL NO.893 OF 2018Juber Khan s/o Shabbir KhanAge 27 years, Occ. Business,R/o Islampura, Chalisgaon,Tq. Chalisgaon, Dist. Jalgaon… APPELLANTVERSUSThe State of Maharashtra through Police Station Officer,Begumpura Police Station, Aurangabad, Dist. Aurangabad(Copy to be served on AdditionalPublic Prosecutor, High Court of Bombay, Bench at Aurangabad) … RESPONDENT.......Shri Satej S. Jadhav, Advocate holding for Shri Sanket N. Suryawanshi, Advocate for appellant Shri S.D. Ghayal, Addl. P.P. with Shri B.B. Bhise, Addl. P.P. for respondent, assisted byShri P.D. Bachate, Advocate with S/Shri A.D. Khot & Azeem Qureshi, Advocates for complainant. ....…WITH Cri.Appeal No.684/2018 withconnected appeals:: 3 ::CRIMINAL APPEAL NO.894 OF 2018Habib Khaled s/o Habib MohammadAge 28 years, Occ. Business,R/o Yunus Colony, Katkat Gate, Aurangabad… APPELLANTVERSUSThe State of Maharashtra (Copy to be served on the Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad) … RESPONDENT.......Shri Satej S. Jadhav, Advocate holding for Shri S.D. Nagode, Advocate for appellant Shri S.D. Ghayal, Addl. P.P. with Shri B.B. Bhise, Addl. P.P. for respondent, assisted byShri P.D. Bachate, Advocate with S/Shri A.D. Khot & Azeem Qureshi, Advocates for complainant. ....…WITHCRIMINAL APPEAL NO.1011 OF 2022Syed Najer Ali s/o Sayed Naser AliAge 40 years, Occ. Convict,Through P.S.O., Begumpura,Aurangabad… APPELLANTVERSUSThe State of Maharashtra Through P.S.O., Begumpura,Aurangabad(Copy to be served upon the Public Prosecutor, High Court of Bombay, Bench at Aurangabad) … RESPONDENT Cri.Appeal No.684/2018 withconnected appeals:: 4 ::.......Shri R.A. Jaiswal, Advocate for appellant Shri S.D. Ghayal, Addl. P.P. with Shri B.B. Bhise, Addl. P.P. for respondent, assisted byShri P.D. Bachate, Advocate with S/Shri A.D. Khot & Azeem Qureshi, Advocates for complainant. ....…WITHCRIMINAL APPEAL NO.319 OF 2019Syed Jahir @ Shera s/o Bakhar Qureshi,Age 33 years, Occ. Business,R/o Near Toteki Masjid, Chelipura,Tq. & Dist. Aurangabad… APPELLANTVERSUSThe State of Maharashtra At the instance of Begumpura Police, Aurangabad … RESPONDENT.......Shri A.K. Bhosale, Advocate for appellant Shri S.D. Ghayal, Addl. P.P. with Shri B.B. Bhise, Addl. P.P. for respondent, assisted byShri P.D. Bachate, Advocate with S/Shri A.D. Khot & Azeem Qureshi, Advocates for complainant. ....…WITHCRIMINAL APPEAL NO.588 OF 2023Imran Mehandi @ Dilawar s/oShaikh Nasir, Age 48 years, Occu. Servicing Centre, Asefiya Colony, Aurangabad … APPELLANT Cri.Appeal No.684/2018 withconnected appeals:: 5 ::VERSUSThe State of Maharashtra Through the Police Inspector,Begumpura Police Station,Aurangabad… RESPONDENT.......Shri Satej S. Jadhav, Advocate holding for Shri Chaitanya C. Deshpande, Advocate for appellant (appointed)Shri S.D. Ghayal, Addl. P.P. with Shri B.B. Bhise, Addl. P.P. for respondent, assisted byShri P.D. Bachate, Advocate with S/Shri A.D. Khot & Azeem Qureshi, Advocates for complainant. ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 9th MAY, 2024Date of pronouncing judgment : 11th JUNE, 2024.JUDGMENT (PER R.G. AVACHAT, J.) : The challenge in this group of 7 Criminal Appeals isto a judgment and order of conviction and consequentialsentence, dated 27/8/2018, passed by a Court constituted fortrial of offences under the Maharashtra Control of OrganisedCrimes, 1999 (learned Special Judge (MCOC), Aurangabad)(Trial Court) in Special Case No.17/2012 (MCOC). Elevenaccused were tried for offences punishable under Sections 302,365, 120-B r/w 34 of the Indian Penal Code read with Sections3(1)(ii) [ought to have been 3(1)(i)], 3(2) and 3(4) of the Cri.Appeal No.684/2018 withconnected appeals:: 6 ::Maharashtra Control of Organised Crime Act, 1999 (MCOCA forshort) read with Sections 3, 4 r/w 25 and 27 of the Arms Act andSection 135 of the Maharashtra Police Act. Eight of them(accused Nos.1 to 7 and 9) have been convicted. The rest havebeen acquitted. Eight out of nine convicts have preferred thepresent appeals. For better appreciation, the order of convictionand consequential sentence, impugned in these appeals, isreproduced below:1) The accused Nos.[1] Imran Mehandi @ Dilawar s/oShaikh Nasir, [2] Syed Najer Ali s/o Syed Naser Ali, [3]Shaikh Imran @ Sultan s/o Shaikh Saifoddin, [4] SyedJahir @ Shera s/o Bakhar Qureshi, [5] Numan Khan s/oAbdul Kayyum Khan, [6] Juber Khan s/o Shabbir Khan,[7] Habib Khaled s/o Habib Mohammad and [9] FaridKhan s/o Feroj Khan are convicted, under Section235(2) of The Code of Criminal Procedure, of theoffence punishable under Section 302 read with 34 ofThe Indian Penal Code and are sentenced to sufferrigorous imprisonment for life and to pay a fine ofRs.5,000/- [Rupees Five Thousand] each in default tosuffer rigorous imprisonment for six months.2) The accused Nos.[1] Imran Mehandi @ Dilawar s/oShaikh Nasir, [2] Syed Najer Ali s/o Syed Naser Ali, [3]Shaikh Imran @ Sultan s/o Shaikh Saifoddin, [4] SyedJahir @ Shera s/o Bakhar Qureshi, [5] Numan Khan s/oAbdul Kayyum Khan, [6] Juber Khan s/o Shabbir Khan, Cri.Appeal No.684/2018 withconnected appeals:: 7 ::[7] Habib Khaled s/o Habib Mohammad and [9] FaridKhan s/o Feroj Khan are convicted, under Section235(2) of The Code of Criminal Procedure, of theoffence punishable under Section 364 read with 34 ofThe Indian Penal Code and are sentenced to sufferrigorous imprisonment for life each and to pay a fine ofRs.5,000/- [Rupees Five Thousand] each, in default tosuffer rigorous imprisonment for six months.3) The accused Nos.[1] Imran Mehandi @ Dilawar s/oShaikh Nasir, [2] Syed Najer Ali s/o Syed Naser Ali, [3]Shaikh Imran @ Sultan s/o Shaikh Saifoddin, [4] SyedJahir @ Shera s/o Bakhar Qureshi, [5] Numan Khan s/oAbdul Kayyum Khan, [6] Juber Khan s/o Shabbir Khan,[7] Habib Khaled s/o Habib Mohammad and [9] FaridKhan s/o Feroj Khan are convicted, under Section235(2) of The Code of Criminal Procedure, of theoffence punishable under Section 201 read with 34 ofThe Indian Penal Code and are sentenced to sufferrigorous imprisonment for one year and to pay a fine ofRs.1,000/- [Rupees One Thousand] each in default tosuffer rigorous imprisonment for six months.4) The accused Nos.[1] Imran Mehandi @ Dilawar s/oShaikh Nasir, [2] Syed Najer Ali s/o Syed Naser Ali, [3]Shaikh Imran @ Sultan s/o Shaikh Saifoddin, [4] SyedJahir @ Shera s/o Bakhar Qureshi, [5] Numan Khan s/oAbdul Kayyum Khan, [6] Juber Khan s/o Shabbir Khan,[7] Habib Khaled s/o Habib Mohammad and [9] FaridKhan s/o Feroj Khan are convicted, under Section235(2) of The Code of Criminal Procedure, of theoffence punishable under Section 3(1)(ii) of The Cri.Appeal No.684/2018 withconnected appeals:: 8 ::Maharashtra Control of Organised Crime Act and aresentenced to suffer rigorous imprisonment for life eachand to pay a fine of Rs.5,00,000/- [Rupees Five Lacs]each, in default to suffer rigorous imprisonment forthree years.5) The accused Nos.[1] Imran Mehandi @ Dilawar s/oShaikh Nasir, [2] Syed Najer Ali s/o Syed Naser Ali, [3]Shaikh Imran @ Sultan s/o Shaikh Saifoddin, [4] SyedJahir @ Shera s/o Bakhar Qureshi, [5] Numan Khan s/oAbdul Kayyum Khan, [6] Juber Khan s/o Shabbir Khan,[7] Habib Khaled s/o Habib Mohammad and [9] FaridKhan s/o Feroj Khan are convicted, under Section235(2) of The Code of Criminal Procedure, of theoffence punishable under Section 3(2) of TheMaharashtra Control of Organised Crime Act and aresentenced to suffer rigorous imprisonment for life eachand to pay a fine of Rs.5,00,000/- [Rupees Five Lacs]each, in default to suffer rigorous imprisonment forthree years.6) The accused Nos.[1] Imran Mehandi @ Dilawar s/oShaikh Nasir, [2] Syed Najer Ali s/o Syed Naser Ali, [3]Shaikh Imran @ Sultan s/o Shaikh Saifoddin, [4] SyedJahir @ Shera s/o Bakhar Qureshi, [5] Numan Khan s/oAbdul Kayyum Khan, [6] Juber Khan s/o Shabbir Khan,[7] Habib Khaled s/o Habib Mohammad and [9] FaridKhan s/o Feroj Khan are convicted, under Section235(2) of The Code of Criminal Procedure, of theoffence punishable under Section 3(4) of TheMaharashtra Control of Organised Crime Act and aresentenced to suffer rigorous imprisonment for five years Cri.Appeal No.684/2018 withconnected appeals:: 9 ::and to pay a fine of Rs.5,00,000/- [Rupees Five Lacs]each, in default to suffer rigorous imprisonment forthree years.. . . . . . . . . . . . . . . .15) All the sentences shall run concurrently.2.The facts in brief, giving rise to the present appealsare as follows : P.W.34 Halim (informant) was the brother of SalimQureshi (deceased). Both Halim and Salim were twins. Theyhad one more brother Hamid. Salim (deceased) was financiallybetter than his two other brothers. He was owner of “RoxyTheatre”, Aurangabad. He was a politician as well. He was Ex-Corporator from Asefiya Colony Ward, of Aurangabad MunicipalCorporation. Deceased Salim had two wives. His secondmarriage was interfaith. His second wife was Hindu by religion.Since the Municipal Corporation Ward of Asefiya Colony wasreserved for Women, his second wife (Jyoti Khillare – Salma)was elected as a representative of the said Ward for a term of 5years commencing from 2010.3.It is also the case of the prosecution that, deceased Cri.Appeal No.684/2018 withconnected appeals:: 10 ::Salim was a money lender. There was a dispute between himand erstwhile owner of Roxy Theatre. He would operate hisbusiness from the theatre premises. He used to be there untillate night everyday. P.W.28 Arshad, nephew of deceased Salimwould look after accounts of the business of deceased Salim.He used to be at the office until 11.00 p.m.4.It was 4 March 2012, the informant was with Salim inhis (Salim’s) office. Bismilla and Fahim (P.W.22) joined them by11.00 p.m. Deceased Salim had asked for meals from hisresidence. Arshad (P.W.28) brought the same to the office.Salim, Halim, Bismilla and Fahim (P.W.22) took the meals. Littlepast 12.00 midnight, Salim Qureshi, Bismilla and Fahim left theoffice in Salim’s car. Bismilla and Fahim alighted at Town Hall.Salim proceeded for his house in Asefiya Colony in his Wagon-RCar No.MH-20/BC-6365. Halim then closed the office and wenthis home.5.Halim (informant) received a phone call of Arshad(P.W.28) by 3.00 a.m. He told Halim that Salim did not returnhome. Halim (informant) and Arhsad, therefore, went to TownHall. Jaker (P.W.24), Bismilla and Fahim (P.W.22) met themthere. They told Halim (informant) that, after having dropped
Facts
Cri.Appeal No.684/2018 withconnected appeals:: 11 ::Bismilla and Fahim (P.W.22) at Town Hall, Salim went to hishome in Asefiya Colony. Halim (informant), therefore, made acall to his nephew Salman (P.W.32), son of second wife ofdeceased Salim. Salman (P.W.32) told Halim (informant) hisfather to have not come home. Halim (informant) learnt that, onevehicle passed by Town Hall, fast. He also told them to haveheard some noise emanating from the car. Halim (informant),therefore, went to that place to find spectacle of deceased Salimlying on the road. The spectacle was in broken condition. Healso learnt that, one Omni Van had also passed fast therefrom.There were 3-4 persons in the Van. 6.Halim (informant) and others took search for Salim,but in vain. Halim, therefore, approached Begumpura PoliceStation and lodged First Information Report (F.I.R. - Exh.292),alleging his brother Salim to have been abducted. It wasreported to the police that, there was a dispute between Salimand one Shaikh Javed Shaikh Chand over Roxy Theatre. It wasa big deal. Shaikh Javed was resident of Hyderabad. He alongwith 2-3 persons had visited Aurangabad. It was furtherinformed to the police that bullocks of one Rakesh, resident ofSamta Nagar had gone missing. An F.I.R. was registered inrelation thereto against one Jamil, Azhar and Mujahid, residents
Legal Reasoning
Cri.Appeal No.684/2018 withconnected appeals:: 32 ::“152. A close analysis of the decision wouldshow that the following conditions must befulfilled before a case against an accused can besaid to be fully established :(1)the circumstances from which theconclusion of guilt is to be drawn should be fullyestablished.It may be noted here that this Court indicatedthat the circumstances concerned must or shouldand not ‘may be’ established. There is not only agrammatical but a legal distinction between ‘maybe proved’ and ‘must be or should be proved’ aswas held by this Court in (Shivaji SahebraoBobade v. State of Maharashtra, (1973) 2 SCC793, where the following observations weremade : “certainly, it is a primary principle that theaccused must be and not merely may beguilty before a Court can convict and themental distance between ‘may be’ and ‘mustbe’ is long and divides vague conjecturesfrom sure conclusions.”(2)the facts so established should beconsistent only with the hypothesis of the guilt ofthe accused, that is to say, they should not beexplainable on any other hypothesis except thatthe accused is guilty,(3)the circumstances should be of conclusivenature and tendency,(4)they should exclude every possiblehypothesis except the one to be proved, and(5)there must be a chain of evidence socomplete as not to leave any reasonable ground Cri.Appeal No.684/2018 withconnected appeals:: 33 ::for the conclusion consistent with the innocenceof the accused and must show that in all humanprobability the act must have been done by theaccused.”25.The F.I.R. (Exh.292) was lodged by P.W.34 Halim,the real brother of deceased Salim. It is in his evidence that, thedeceased would operate his business from the premises of RoxyTheatre. The deceased used to sit in his office late night.Arshad (P.W.28), nephew of the deceased would look afteraccounts of the business conducted by the deceased. It is in hisevidence that, on the given night i.e. on the intervening night of 4and 5 March 2012, he was in the company of the deceased athis office. Bismilla and Fahim (P.W.22) were also with them.The deceased made a phone call to Arshad (P.W.28) and askedhim to bring meal. He obeyed. They took meal and then left theoffice. 26.Although 61 witnesses were examined by theprosecution before the Trial Court, the evidence of certainrelevant witnesses has only been referred to and relied on beforeus. The following circumstances were sought to be establishedto bring home the charge. (1)Motive. Cri.Appeal No.684/2018 withconnected appeals:: 34 ::(2)Last seen.(3)Abduction.(4)Circumstances- Seizure of Wagon-R Car, seizure ofadhesive tapes, particles of soil on the car and C.A.reports in that regard.(5)Recovery of dead body of deceased Salim Qureshipursuant to disclosure statement made by Imran Mehandi(appellant in Criminal Appeal No.588/2023).(6)Confessional Statements.27.Let us now advert to the evidence on record andappreciate the same to find whether the prosecution hassuccessfully brought home the charge against the appellants,and the judgment and order impugned herein needs nointerference.MOTIVE : 28.Admittedly, deceased Salim was a businessman andpolitician as well. P.W.24 Jakir admitted in his cross-examinationthat the deceased would do money lending and used to advancefinance to promoters and builders. Both, the appellants ImranMehandi and the deceased Salim were the residents of AsefiyaColony. True, deceased Salim had second home at Sillekhana Cri.Appeal No.684/2018 withconnected appeals:: 35 ::area. According to the prosecution, Salim was eliminated by theappellant Imran Mehandi and his associates (co-appellants) onlywith a view to have supremacy over Salim (deceased) in AsefiyaColony. It is also the case of the prosecution that, in theCorporation elections for the year 2010, the second wife ofdeceased Salim was in the frey. Hoardings and posters weredisplayed at various parts within the limits of the concerned Wardwith an appeal to the voters to not vote the one who indulged inmoney lending since it was against Islamic tenets. It was also thecase of the prosecution that, appellant Imran Mehandi wanted toextort Rs.50 Lakhs from the deceased with a threat of eliminatinghim. An evidence in that regard appearing in the confessionalstatement of two of the three appellants was relied on.29.Close reading of the evidence of the witnessesexamined in this regard indicates none of them testified that suchposters/ hoardings were displayed by appellant Imran Mehandi.The witness in that regard did not stand by the prosecution. Itwas also the case of the prosecution that the deceased wantedto collect contribution (Chanda) for a Masjid and misappropriatethe same. The same was disliked by the appellant ImranMehandi. A 72 year old Maulana (P.W.25 Abdul Sattar) wasexamined in that regard. He too did not stand by the Cri.Appeal No.684/2018 withconnected appeals:: 36 ::prosecution. Although he testified that the deceased hadcollected some contribution for Masjid, but he returned the sameto the donors immediately. 30.About display of hoardings/ posters, P.W.22 Sk.Fahim and P.W.24 Sk. Jakir were examined in that regard. Theydid not stand by the prosecution. Although the learned A.P.P.cross-examined them extensively, it has simply been brought onrecord through the cross-examination of these witnesses whatwas stated by them to the police in their statements, underSection 161 of the Cr.P.C. 31.So far as regards other motives are concerned, wefind no cogent and convincing evidence. Had the appellantImran Mehandi really wanted to extort sum of Rs.50 Lakhs fromdeceased Salim, he would have made a demand therefor. Thereis no evidence at all to indicate that the deceased was eliminatedfor having not been fulfilled with the alleged demand of Rs.50Lakhs. It is reiterated that, close reading of the entire evidenceon record, we do not find the prosecution to have made out aparticular motive for eliminating Salim Qureshi. True, in a casebased on circumstantial evidence, motive plays a very importantrole, the same needs to be proved. It is, however, not an Cri.Appeal No.684/2018 withconnected appeals:: 37 ::absolute proposition of law. Many a time a motive remainslocked in the mind of a culprit. If the evidence on record makesout an offence without there being proof of motive behindcommission of the crime, the culprit does not get benefit thereof. LAST SEEN :32.It is further in the evidence of P.W.34 Halim(informant) that, by 2.00 a.m., he received a phone call of Arshad(P.W.28). Arshad told him Salim to have not reached his home.Fahim (P.W.22) too had made a phone call to Arshad (P.W.28) toinform Salim to have not reached home. He (informant) andArshad, therefore, went on his motorcycle to Town Hall area.Fahim (P.W.22), Bismilla met them there. He learnt from themthat someone told them to have seen a Wagon-R car went fastfrom Town Hall area. He, therefore, went to the house of Salimand made enquiry with his son Salman (P.W. 32) to find Salim tohave not returned home. It is further in his evidence that, theylearnt that appellants Imran Mehandi and Najer Ali and someothers were in the vicinity of Town Hall area. They, therefore,went to the house of appellant Imran Mehandi to find him nothome. It is further in his evidence that, he found spectacle of thedeceased lying on the road. The evidence of the informantfurther indicates that, after having taken search for Salim, he Cri.Appeal No.684/2018 withconnected appeals:: 38 ::along with Fahim (P.W.22), therefore, approached BegumpuraPolice Station and lodged the F.I.R. (Exh.292).33.It is true that, none of the appellants were named inthe F.I.R. as suspects. On the contrary, the names of someothers figured therein. The evidence of the informant would,therefore, be of not much incriminating against the appellants. Ithas relevance only for setting the criminal law in motion, sincebased on the F.I.R. (Exh.292), a crime vide C.R. No.19/2012 forthe offence punishable under Section 363 r/w 34 of the IndianPenal Code was registered. Shri S.D. Shaikh (P.W.57), PoliceInspector attached to the very police station was present. It washe who recorded the F.I.R. Then he took up the investigation ofthe crime. It is in his evidence that, he went to the place at TownHall area and found the spectacle of Salim Qureshi lying on theroad. He seized the same under the panchanama (Exh.249).The evidence indicates that, the spectacle was identified by thewitnesses before the Court. It is true that there was no evidenceto indicate that the deceased was sporting the very spectacle onthe given day. No test identification of the spectacle wasconducted during investigation. In our view, the same would notbe of much assistance to the defence since all these things i.e.P.W.57 S.D. Shaikh visiting the place of alleged abduction on the Cri.Appeal No.684/2018 withconnected appeals:: 39 ::early morning of 5 March 2012, and drawing of the panchanamawith seizure of the spectacle would not be so incriminating sinceinvolvement of the appellants in the crime in question had notcome to light by then. Seizure panchanama, therefore, cannotbe said to be a fabricated piece of evidence. 34.P.W.22 Sk. Fahim was admittedly a friend of thedeceased. It is in his evidence that, on the night of 4/3/2012, hehad been to the office of Salim Qureshi in Roxy Theatre alongwith Bismilla. Both Halim (P.W.34) and Arshad (P.W.28) werethere. The evidence of Arshad (P.W.28) too reinforces the saidfact. He had, however, left the office little past 11.00 p.m. Hisevidence would indicate that, he collected meal from the houseof deceased Salim and carried it to the office whereat Salim andothers took the same. The evidence of P.W.22 Sk. Fahim wouldfurther indicate that, by 12.45 a.m., all of them started in aWagon-R Car of the deceased, registration number of which wasMH-20/BC-6356. They travelled up to Town Hall area. He gotdown from the car since he had his two-wheeler parked thereat.Thereafter he was supposed to meet Salim at his residence. He,therefore, went to Salim’s place to find him to have not returnedhome. The Wagon-R car was also not there. It is further in hisevidence that, he therefore gave a phone call to Arshad Cri.Appeal No.684/2018 withconnected appeals:: 40 ::(P.W.28). Both Arshad (P.W.28) and the informant came to TownHall area. He informed them to have learnt from one Majju thatSalim went towards Begumpura in his car. The evidence ofP.W.22 Sk. Fahim further indicates Salim’s spectacle was foundon the road. He accompanied the informant to BegumpuraPolice Station, whereat the F.I.R. was lodged by P.W.34 Halim.35.It was the submission of the learned Advocate ShriJadhav for the appellants that, there was no evidence to indicateSalim to have in fact been killed or alive on 4/ 5 March 2012. Headverted our attention to the evidence of Dr. Kailas Zine (P.W.36)and the post mortem report, that the evidence is silent to indicatethe exact time of death of the deceased. Close reading of cross-examination of P.W.22 Sk. Fahim would indicate thatsuggestions in the nature of admissions were put to him onbehalf of appellant Imran Mehandi. It is evident therefrom that,deceased Salim used to sit at his office in Roxy Theatre until latenight every day. Both Bismilla and P.W.22 Fahim used to be inhis company there. There is also evidence to indicate that,Salman (P.W.32), son of second wife of deceased, was alsocontacted on the given night. He too joined them (P.W.22 Fahimand P.W.34 Halim) to take search for Salim, but in vain. It wasspecifically suggested in paragraph 8 of the cross-examination of Cri.Appeal No.684/2018 withconnected appeals:: 41 ::P.W.22 Sk. Fahim that, he (P.W.22), Bismilla, Halim (informant,P.W.34), Arshad (P.W.28) and Jakir were taking search for SalimQureshi. They were searching him from 4.00 a.m. onwards. Assuch, the evidence of the informant (P.W.34 Halim) and that ofP.W.22 Fahim and P.W.28 Arshad, coupled with the suggestionsgiven to P.W.22 Sk. Fahim in his cross-examination that theywere making search for the deceased from 4.00 a.m. onwards,goes a long way to indicate that Salim Qureshi was very muchthere at his office on the intervening night of 4 and 5 March2012. A stray sentence appearing in the evidence of P.W.57 ShriS.D. Shaikh that relations of deceased Salim were visiting thepolice station from 1 to 4 March 2012 would, therefore, be of littleconsequence. No specific suggestion was given to the saidwitness to indicate that they were visiting the police station inconnection with Salim to have allegedly went missing even priorthereto.36.So far as regards abduction of Salim Qureshi fromTown Hall area is concerned, we do not have any direct evidencein that regard, although the learned A.P.P. relied on the evidenceof P.W.30 Feroz Khan and P.W.41 Sk. Bashir. Both thesewitnesses did not stand by the prosecution. We have closelyperused their evidence to find no shred of material to have been Cri.Appeal No.684/2018 withconnected appeals:: 42 ::brought on record during their cross-examination conducted bythe learned A.P.P. They were simply confronted with theirstatements recorded under Sections 161 and 164 of the Cr.P.C.Even what has been stated by these two witnesses in responseto the questions put to them by the learned A.P.P. would onlyamount to contradicting them with their previous statements.Those statements in any case would not partake the character ofthe substantive evidence. 37.True, P.W.41 Sk. Bashir partially supported theprosecution. It is in his evidence that, he was resident of PragatiColony. He had acquaintance with deceased Salim. Deceasedowned Wagon-R Car, No.MH-20/BC-6356. It is further in hisevidence that, on the intervening night of 4 and 5 March 2012,he was returning from Ghati Hospital, Aurangabad after havingmet wife of one Hakim Tailor, admitted to Ghati Hospital fortreatment. It was by 1.00 a.m. He was proceeding on hismotorbike. The Wagon-R car of Salim Qureshi was proceedingahead of him. One Omni Car suddenly came from opposite sideand intercepted Wagon-R car. 4 to 5 persons got down from theOmni Car and dragged Salim from his driver seat and put him inthe back sit of the Wagon-R car itself. He stopped there for awhile. He then went to his house. In the morning he learnt Cri.Appeal No.684/2018 withconnected appeals:: 43 ::about abduction of Salim. It is further in his evidence that, afterarrest of appellant Imran Mehandi and Najer Ali, he on his ownapproached the police and gave his statement. According tohim, on arrest of the appellant, he could gather the courage toapproach the police and give statement.38.When this witness did not speak further in hisexamination-in-chief, the learned A.P.P., with the permission ofthe Court, referred the witness his statement recorded underSection 164 of the Cr.P.C. Then this witness deposed to havestated in his statement that, abductors were Imran Mehandi,Najer Ali, Ashfaq Pathan and others. What has been stated bythis witness in his statement under Section 164 of the Cr.P.C. isappearing in paragraph 4 of his examination-in-chief. When weclosely read his evidence, what has been brought on record bythe prosecution is the fact that this witness, in his statementrecorded under Section 164 of the Cr.P.C., has stated that, theabductors were appellants Imran Mehandi, Najer Ali, AshfaqPathan and others. Needless to mention that, this witness wasreferred to his statement recorded under Section 164 of theCr.P.C. It needs no mention that, statement recorded underSection 164 of the Cr.P.C. can only be used for contradicting thewitness who made the statement or for corroboration of his Cri.Appeal No.684/2018 withconnected appeals:: 44 ::substantive evidence before the Court. At the cost of repetition,it is stated that, P.W.41 Sk. Bashir, in no uncertain terms diddepose to have witnessed the appellant Imran Mehandi, Najer Aliand others to have abducted Salim Qureshi in his own (Salim’s)Wagon-R car. Mr. Satej Jadhav, learned Advocate for theappellants would submit that, evidence of this witness wasunreliable for more than one reasons. This witness was a closefriend of the deceased. The deceased would purchaseproperties in his name. This witness was residing as a tenant forsome years in the premises owned by the deceased. It wasfurther submitted that, statement of this witness was recorded 8days after the incident. The witness did not share the incidentwith his family members or anyone else. The witness was alsoconfronted with his police statement, wherein he did not state theWagon-R car number. His police statement is also silent torecord therein that Salim Qureshi’s car was proceeding ahead ofhim and one Omni Car came from opposite direction andblocked the road with a view to abduct Salim Qureshi. Theevidence in paragraph No.10 of his cross-examination containmaterial omissions in his police statement, which amounts tomaterial contradictions. We, therefore, do not propose to rely onthe evidence of P.W.41 Sk. Bashir in proof of factum of abductionof deceased Salim from Town Hall area by the appellants. The Cri.Appeal No.684/2018 withconnected appeals:: 45 ::person by name Munna who had seen the incident of abductionwas not examined. There is, therefore, no question for theprosecution to rely on Section 106 of the Evidence Act to submitthat, it is for the appellants/ abductors to explain what they didwith the deceased after having abducted him (Salim) from TownHall area on the intervening night of 4 and 5 March 2012. 39.We are, however, of the view that, the evidence ofthe informant P.W.34 Halim, P.W.22 Fahim would indicate thatsomething had happened with the deceased at Town Hall area.The spectacle of the deceased was found on the spot. The saidfact figures in the F.I.R. (Exh.292). The F.I.R. corroborates theevidence of the informant before the Court. The spectacle wasseized under the panchanama drawn by P.W.57 Shri S.D. Shaikhin the presence of panch witness (P.W.27 Nasiruddin). There is,therefore, every reason for us to infer that something odd hadhappened with the deceased at or nearby the Town Hall area.The deceased was supposed to return to his home at AsefiyaColony or at his another house in Sillekhana area on the givennight. He did not return. The factum of his not reaching homewas realized immediately. Halim (informant) (P.W.34), P.W.22Fahim and P.W.28 Arshad, therefore, took search for him untilthe wee hours of 5/3/2012 and ultimately lodged the report (F.I.R. Cri.Appeal No.684/2018 withconnected appeals:: 46 ::Exh.292). This fact undoubtedly goes a long way to infer that thedeceased must have been taken into custody by the culprits fromTown Hall area. CIRCUMSTANCES(SEIZURE OF CAR) : 40.P.W.1 Wasim is a panch witness. His evidenceindicates that, Wagon-R car of Salim Qureshi was seized byP.W.57 Shri S.D. Sheikh little past 12.30 midnight on 6/3/2012from Tapadia Ground. Evidence of P.W.1 Wasim and P.W.57Shri S.D. Shaikh is consistent in this regard. Their evidenceindicate that, the Wagon-R car was found abandoned at thatplace. On search of the car, 3-4 adhesive tapes were seized.There were particles of soil on the body of the car. Those wereseized under the panchanama (Exh.124). Although P.W.1Wasim was found to be the resident of very Colony whereat thedeceased Salim would reside, we find no reason to disbelievehis evidence. We also rely on the evidence of the investigationofficer P.W.57 Shri S.D. Shaikh in this regard, who had swunginto action immediately on registration of the crime. True, P.W.1Wasim could not state with which key P.W.57 Shri S.D. Shaikhcould open the car. The same, however, be of little importance.Although before the Trial Court the appellants denied the Cri.Appeal No.684/2018 withconnected appeals:: 47 ::deceased to have owned the Wagon-R car, there is ample andconvincing evidence of number of witnesses to indicate the saidcar was owned and used by the deceased. The owner of the car(P.W.43 Shahed Ahemad) was also examined in this regard. Hetoo vouched for the same. The relevant C.A. reports would bereferred to a little later.Recovery of dead body of deceased Salim Qureshi pursuantto disclosure statement made by Imran Mehandi (appellantin Criminal Appeal No.588/2023)41.As per the case of the prosecution, the appellantImran Mehandi and some of the appellants were arrested by thepolice officials of the Crime Branch on the night of 10 of March2012. Since the crime was registered and being investigated byP.I. - P.W.57 Shri S.D. Shaikh, Begumpura Police Station, he wassummoned to the Crime Branch, and appellants Imran Mehandiand 5 others were delivered to the custody of P.W.57 who, inturn, arrested them under the arrest panchanamas (Exhs.468 to473). It is true that, the learned Advocate for the appellants hadevery reason to contend that no Crime Branch official has beenexamined as a witness in the case. The same has, therefore,caused prejudice to the appellants. It is not known that sincewhen the appellant Imran Mehandi and other appellants weretaken into custody by the Crime Branch officials and what was Cri.Appeal No.684/2018 withconnected appeals:: 48 ::revealed during their interrogation. We are in agreement withthe submissions made by learned Advocate for the appellants.42.The other circumstances relied on by the prosecutionis a disclosure statement (Exh.252) made by appellant ImranMehandi on 11/3/2012, pursuant to which a dead body of SalimQureshi came to be exhumed from Padegaon – Mitmita area. Itwas a statement under Section 27 of the Evidence Act, said tohave been made by appellant Imran Mehandi on 11/3/2012 at10.30 a.m. at Waluj MIDC Police Station. In this regard, wepropose to refer to the evidence of P.W.28 Arshad and P.W.57Shri S.D. Shaikh in common. P.W.57 Shri S.D. Shaikh had takenthe custody of the appellant Imran Mehandi and arrested himunder the panchanama (Exh.468) drawn on 10/3/2012. Hethereafter got appellant Imran Mehandi and others medicallyexamined. Since there was no lock-up in Begumpura PoliceStation, appellant Imran Mehandi was kept in the lock-up ofMIDC Waluj Police Station. A station diary entry to that effect isproduced on record. It is in his evidence that, duringinterrogation, appellant Imran Mehandi expressed his desire tomake a disclosure statement. He, therefore, asked his one ofthe Assistants to secure presence of two panchas. Accordingly,presence of P.W.28 Arshad was secured in addition to one Cri.Appeal No.684/2018 withconnected appeals:: 49 ::another witness. It is further in the evidence of P.W.57 Shri S.D.Shaikh that, he also secured services of a videographer (P.W.33Ramdas) to make video recording of a disclosure statement tobe made by appellant Imran Mehandi and further relevantincidents. P.W.33 Ramdas was a videographer. It is he who didthe video shooting of the alleged disclosure statement made byappellant Imran Mehandi and further events of he (ImranMehandi) leading them to a secluded place – Padegaon –Mitmita and pointing out the same, on excavation of which adead body of Salim Qureshi came to be exhumed. These threewitnesses gave the evidence in one voice to state the appellantImran Mehandi to have made a disclosure statement that he andhis associates abducted Salim Qureshi from Asefiya Colony andtook him to Kasambari Nagar, Padegaon Shivar and assaultedhim there. Then dug a pit and buried him therein. True, most ofthe part of the aforesaid statement is inadmissible in evidence asbeing hit by Section 25 of the Evidence Act as confession topolice. The question is, whether pursuant to the disclosurestatement made by appellant Imran Mehandi the dead body ofdeceased Salim came to be exhumed from the place pointed outby him. Exh.253 is the panchanama in that regard. The sameindicates the appellant Imran Mehandi led the police andpanchas to that area and pointed out the place. It was dug up Cri.Appeal No.684/2018 withconnected appeals:: 50 ::and the dead body was exhumed. The evidence of P.W.57 ShriS.D. Shaikh indicates that, after appellant Imran Mehandi madea disclosure statement, he contacted the Tahsildar and theMedical Officer to avail their services for drawing of inquest onexhumation of body on the spot. Both these witnesses, namelyNaib Tahsildar P.W.51 Gangadhar and the doctor Dr. Kailas Zine(P.W.36) testified that they went to Waluj Police Station inresponse to a call by police. Naib Tahsildar Gangadhar (P.W.29)testified that, on the directions of the Tahsildar, he went to thepolice station and then accompanied the police to the placepointed out by the appellant Imran Mehandi. His evidenceindicates that the Tahsildar was informed on telephone by P.W.57Shri S.D. Shaikh to make available the services of ExecutiveMagistrate. The Naib Tahsildar-cum-Executive Magistrate(P.W.51 Gangadhar) testified accordingly. 43.The evidence of all these witnesses indicate that, apolice team along with doctor and the Executive Magistrate wasled by appellant Imran Mehandi to Padegaon – Mitmita area.The place was dug up. Dead body of Salim Qureshi wasexhumed. On the spot post mortem was conducted. TheMedical Officer who conducted the post mortem and panchwitness to the inquest panchanama (Exh.123) testified that the Cri.Appeal No.684/2018 withconnected appeals:: 51 ::hands and legs of the deceased were tied with adhesive tapes.Those tapes were taken charge of by P.W.57 Shri S.D. Shaikh. 44.If we go by the oral evidence of P.W.57 Shri S.D.Shaikh and the panch witness Arshad (P.W.28), it may appearthat, the appellant Imran Mehandi really did make a disclosurestatement, pursuant to which a dead body of Salim Qureshi wasexhumed from the place pointed out by him.45.It is the case of the appellants that, panch witnessArshad (P.W.28) is none other than real nephew of the deceasedSalim Qureshi. Our attention was adverted to his cross-examination, wherein he stated that, he had been to the PoliceStation, Waluj after having read in the newspaper Salim Qureshito have been murdered. Independentness of this witness hasalso been challenged. Since there was a huge crowd, thequestion was raised as to why the investigating officer did notselect independent person to act as panch witness. One has toagree with this fact. True, P.W.33 Ramdas also testified on thelines of the evidence of P.W.57 Shri S.D. Shaikh and P.W.22 Sk.Fahim as regards the disclosure statement, it is he who handedover the CD containing video recording of the disclosurestatement made by appellant Imran Mehandi. We do not Cri.Appeal No.684/2018 withconnected appeals:: 52 ::propose to refer to the evidence of panch witness and the policeofficer who seized the CD delivered by P.W.33 Ramdas sinceboth, the prosecution and the defence rely on the videorecording contained in the CD. The CD was played before theTrial Court. A prayer was also made to this Court to view thesame. It was the contention of the learned Advocate for theappellants that, no disclosure statement was in fact made by theappellant Imran Mehandi. The place whereat the dead body wasburied had already been known to P.W.57 Shri S.D. Shaikh on10 and suggestion to that effect was given to him in his cross-examination. Moreover, a confessional statement of appellantJuber was relied on in that regard to suggest that the same wasrecorded on 9 March. It was also pointed out that, a largenumber of persons had already gathered at the spot. Even ourattention was drawn to the evidence of P.W.2 Niyaj who testifiedto have been there since 9.30 in the morning as he had learntSalim Qureshi was killed and his body was supposed to beexhumed from that area. So far as regards oral evidence ofP.W.28 Arshad (panch witness) and the police officer P.W.57 ShriS.D. Shaikh, to whom the disclosure statement was made, andthe factum that the appellant Imran Mehandi took them to aparticular place which was immediately dug up and the deadbody was exhumed, is apparently proved by the evidence of Cri.Appeal No.684/2018 withconnected appeals:: 53 ::these witnesses. It is, however, always said that, documentspeaks louder than the words. The video recording of the socalled disclosure statement contained in the CD is a document.We watched the CD three times to notice what has beenallegedly stated by appellant Imran Mehandi at Waluj PoliceStation could not be heard. We only noticed a few movementsof his lips. So far as regards the scene appearing in the CD, asto pointing out the place, we heard appellant Imran Mehandi tohave said “ररत मम यहह कहह बतरयर ”थर. Our attention was also drawnto piece of a tile lying thereat allegedly placed to identify the spotof the burial. A piece of tile was very much visible.46.We are conscious of the fact of legal position asregards relevancy of disclosure statement made under Section27 of the Evidence Act. We have also perused the authoritiesrelied on in this regard by the learned Advocates. Thoseauthorities are – Boby and Ravishankar (supra) relied on bylearned Advocate Mr. Jaiswal. A landmark judgment on this pointis that of the Privy Council, in case of Pulukuri Kotayya & ors.Vs. King-Emperor (1946 SCC OnLine PC 47), wherein it hasbeen observed that :-The second question, which involves theconstruction of s. 27 of the Indian Evidence Act,will now be considered. That section and the two Cri.Appeal No.684/2018 withconnected appeals:: 54 ::preceding sections, with which it must be read, arein these terms. [His Lordship read ss. 25, 26 and 27of the Evidence Act and continued:] Section 27,which is not artistically worded, provides anexception to the prohibition imposed by thepreceding section, and enables certain statementsmade by a person in police custody to be proved.The condition necessary to bring the section intooperation is that the discovery of a fact inconsequence of information received from a personaccused of any offence in the custody of a policeofficer must be deposed to, and there upon so muchof the information as relates distinctly to the factthereby discovered may be proved. The sectionseems to be based on the view that if a fact isactually discovered in consequence of informationgiven, some guarantee is afforded thereby that theinformation was true, and accordingly can be safelyallowed to be given in evidence; but clearly theextent of the information admissible must dependon the exact nature of the fact discovered to whichsuch information is required to relate. Normally thesection is brought into operation when a person inpolice custody produces from some place ofconcealment some object, such as a dead body, aweapon or ornaments, said to be connected with thecrime of which the informant is accused. Mr.Megaw for the Crown, has argued that in such acase the “fact discovered” is the physical objectproduced, and that any information which relatesdistinctly to that object can be proved. On this viewinformation given by a person that the bodyproduced is that of a person murdered by him, thatthe weapon produced is the one used by him in thecommission of a murder, or that the ornamentsproduced were stolen in a dacoity, would all beadmissible. If this be the effect of s. 27, littlesubstance would remain in the ban imposed by thetwo preceding sections on confessions made to thepolice, or by persons in police custody. That banwas presumably inspired by the fear of the Cri.Appeal No.684/2018 withconnected appeals:: 55 ::legislature that a person under police influencemight be induced to confess by the exercise ofundue pressure. But if all that is required to lift theban be the inclusion in the confession ofinformation relating to an object subsequentlyproduced, it seems reasonable to suppose that thepersuasive powers of the police will prove equal tothe occasion, and that in practice the ban will loseits effect. On normal principles of constructiontheir Lordships think that the proviso to s. 26,added by s. 27, should not be held to nullify thesubstance of the section. In their Lordships' view itis fallacious to treat the “fact discovered” withinthe section as equivalent to the object produced; thefact discovered embraces the place from which theobject is produced and the knowledge of theaccused as to this, and the information given mustrelate distinctly to this fact. Information as to pastuser, or the past history, of the object produced isnot related to its discovery in the setting in which itis discovered. Information supplied by a person incustody that “I will produce a knife concealed inthe roof of my house” does not lead to thediscovery of a knife; knives were discovered manyyears ago. It leads to the discovery of the fact that aknife is concealed in the house of the informant tohis knowledge, and if the knife is proved to havebeen used in the commission of the offence, thefact discovered is very relevant. But if to thestatement the words be added “with which Istabbed A.”, these words are inadmissible sincethey do not relate to the discovery of the knife inthe house of the informant.” 47.No one can dispute this legal position. In case ofBoby (supra), there was no recording of the disclosure statementallegedly made by the appellant therein while in the case relied Cri.Appeal No.684/2018 withconnected appeals:: 56 ::on by learned Advocate Mr. Jaiswal, the police had already cometo know the dead body to have been found before the disclosurestatement was made.48.According to the prosecution, the investigating officerP.W.57 Shri S.D. Shaikh for the first time came to know thatSalim Qureshi was murdered and his dead body was buried at aparticular place, only after appellant Imran Mehandi made adisclosure statement, relevant under Section 27 of the EvidenceAct. Admittedly, Sections 302 and 201 of the Indian Penal Codecame to be invoked immediately after recording of the saiddisclosure statement. The learned A.P.P. adverted our attentionto all the station diary entries made since P.W.57 Shri S.D.Shaikh took custody of some of the appellants and did furtherinvestigation. True, all those entries have been made in theofficial course of business and could be relevant. Those entriesare appearing in chronological order. The question is, whether itwas really a disclosure statement, under Section 27 of theEvidence Act and relevant in the facts and circumstances of thecase.49.It is reiterated that, appellant Imran Mehandi andsome of the appellants had already been detained by the Crime Cri.Appeal No.684/2018 withconnected appeals:: 57 ::Branch officials. None of the Crime Branch officials has beenexamined in proof of day and time on which they were in facttaken into custody or detained. True, they were handed over toP.W.57 Shri S.D. Shaikh in the night of 10 March and then theywere arrested under relevant panchanamas by P.W.57 Shri S.D.Shaikh. Learned Advocate for the appellants has every reasonto contend, based on the statement made by appellant ImranMehandi that “ररत मम यहह कहह बतरयर ”थर and the fact that, P.W.28Arshad went to the police station after having read in thenewspaper that Salim Qureshi was killed. Moreover, evidence ofP.W.2 Niyaj indicates that he had been to the place by 9.30 in themorning itself after having learnt Salim Qureshi to have beenkilled, goes a long way to infer that the fact of murder of SalimQureshi was within the public domain before he allegedly madea disclosure statement (Exh.252). A large crowd had alreadygathered around the place. It is reiterated that, in the videorecording of the disclosure statement, we could not hear him tohave made any statement relevant under Section 27 of theEvidence Act. At the material time only we could notice a fewmovements of his lips. True, the disclosure statement was seento have been signed by the appellant Imran Mehandi,investigating officer P.W.57 Shri S.D. Shaikh and two otherpanch witnesses (P.W.22 Fahim and P.W.28 Arshad). Cri.Appeal No.684/2018 withconnected appeals:: 58 ::50.The evidence of Medical Officer Kailas Zine (P.W.36),who was summoned to conduct the post mortem examination onthe spot, was also relied on to suggest that, it was P.W.57 ShriS.D. Shaikh, who had been to the hospital to deliver him arequisition letter to avail his services. The Medical Officer hastendered in his evidence a copy of the requisition letter receivedby him. We, however, do not propose to rely on this evidence,since the factum of recording of alleged disclosure statement atthe relevant time at MIDC Waluj Police Station is evident fromthe CD. The evidence has been recorded six years after thealleged incident. It would, therefore, be a matter of memory of awitness to have not served him well and, therefore, inconsistencyinter-se the evidence is appearing. In our view, the doctor musthave been summoned with a telephonic call and then on hisarrival he was given a requisition letter. 51.It is reiterated that, since in our view the factum ofmurder of Salim Qureshi was in the public domain about 2 – 3hours before the appellant Imran Mehandi made the allegeddisclosure statement, pursuant to which the dead body came tobe exhumed, the same, therefore, could not be said to berelevant under Section 27 of the Evidence Act. P.W.57 Shri S.D.Shaikh must be presumed to have been in the know of all these Cri.Appeal No.684/2018 withconnected appeals:: 59 ::facts in advance and thereafter he recorded the statement of theappellant Imran Mehandi. The appellant Imran Mehandi mighthave disclosed all these facts to the Crime Branch officials whenhe was in their custody and after he was handed over to thecustody of P.W.57 Shri S.D. Shaikh, he recorded the disclosurestatement (Exhs. 252 and 253).52.There is another aspect of the matter. The appellantImran Mehandi had noted the words “U.P.” on his disclosurestatement. It was suggested to the relevant prosecutionwitnesses and even in his statement under Section 313 of theCr.P.C. He submitted that, “U.P.” means under pressure. True,the words “U.P.” has very many sheds of meaning. The similarthing had happened as regards another disclosure statementmade by the appellant Imran Mehandi, pursuant to which someother articles relating to the crime in question came to be seizedpursuant to his disclosure statement, to which a reference wouldbe made a little later. Suffice it to say, for all the aforesaidreasons, we are hesitant to rely on the disclosure statement(Exh.252) and the pachanama of the recovery of the body(Exh.253).53.The fact, however, remains that, the inquest Cri.Appeal No.684/2018 withconnected appeals:: 60 ::panchanama (Exh.123) and the post mortem report (Exh.303)conducted on the spot, indicate that the hands and legs of thedead body of Salim Qureshi were tied with adhesive tapes.Those were taken charge under the panchanama (Exh.124,Panch Witness P.W.2 Niyaj).54.The investigation was thereafter transferred to PoliceInspector Telure (P.W.60). It is in his evidence that, appellantImran Mehandi made a disclosure statement in the presence ofpanch P.W.8 Mohd. Pasha. He disclosed to have burnt theclothes, shoes and belt of deceased Salim Qureshi. Theappellant Imran Mehandi then led all of them to a secluded placenearby Hotel Meadows, wherefrom strips of shoes and burntpiece of a belt came to be seized. Those articles were identifiedby the relations of the deceased Salim Qureshi before the Court.On the said disclosure statement as well, the word “U.P.” hasbeen appearing.55.Close reading of the entire evidence on record wouldindicate that, there was nothing to suggest, on the given day thedeceased Salim Qureshi to have sported the belt and clothes,ash whereof and the shoes, the strips whereof came to beseized. The disclosure statement (Exh.163 & 164) relating to Cri.Appeal No.684/2018 withconnected appeals:: 61 ::these facts, therefore, do not further the prosecution case.56.There is another disclosure statement made byappellant Imran Mehandi to P.W.60 Telure. It was made in thepresence of panch witness (P.W.9 Farook Khan). Pursuant tothe said disclosure statement, the appellant Imran Mehandi ledthe police and panchas to one Nallah. A knife was said to havebeen thrown in the Nallah. There was water therein. A magnatewas required to be used to find a knife in the Nallah. In the firstattempt, the magnate could not catch the knife. On the secondattempt the knife could be located and taken out with the aid ofthe magnate. This disclosure statement was made about 11days after the incident. It is just surprising that the knife, afterhaving been in water for little over 8 days, the Chemical Analystcould locate a human blood stain thereon. In our view, when theknife was seized, the seizure panchanama is silent to record anykind of stain thereon. At the cost of repetition, it is observed that,it is just difficult to concede to a fact that an article, after havingbeen in water for little over 8 days, would retain on it a stain ofblood. We, therefore, discard the C.A. report (Exh.540) in thatregard. Even we accept the same, what the C.A. reportindicates that, the stain was of a human blood. It is not that thestain matched with the blood group of the deceased. Cri.Appeal No.684/2018 withconnected appeals:: 62 ::57.Since 61 witnesses were examined before the TrialCourt, on reading of the evidence of all of them, we foundnumber of witnesses did not support the prosecution. 5 were thepolice constables, who carried seized muddemal to the office ofChemical Analyst, Aurangabad. One of the witnesses wasexamined in proof of DNA report to establish identity of thedeceased. One of the witness was carrier in relation thereto.Number of witnesses were panchas to various disclosurestatements and house search panchanamas. A passingreference is made thereto since it should not appear that wehave not read evidence at all. It is surprising that, after appellantImran Mehandi allegedly made a disclosure statement, pursuantto which the dead body was exhumed from a particular place,similar statements of appellant Numan Khan, Imran Saifuddin(acquiitted accused) and some others were recorded by theinvestigating officer in the presence of panch (P.W.31 Rahul).Those statements would be irrelevant under Section 27 of theEvidence Act in view of the fact of the dead body to have hadalready been exhumed from the very/ particular place longbefore their statements were recorded. Other evidence relatesto disclosure statement made by one of the appellant Jahirindicating to have abandoned the Wagon-R car of the deceasedafter commission of the crime. The said statement was recorded Cri.Appeal No.684/2018 withconnected appeals:: 63 ::some days after the car was seized by P.W.57 Shri S.D. Shaikhby 12.30 midnight on 6 March itself. Then there arepanchanamas about house search of the appellants andrecovery of very many articles therefrom. Close reading ofevidence in that regard would indicate none of the seized articlesfrom the house of appellant Imran Mehandi (seizure of 60 and 72articles on two different occasions) and seizure of articles fromthe house of Najer Ali (P.W.19 Vijay) and Syed Jahir (P.W.15Shaikh Ayyub) to have no relevancy with the offence in question.We may observe that, the prosecution at least failed to showhow the same was relevant in this case. One of the witnessesexamined (P.W.44 Sakharam) was Executive Magistrate, whorecorded statements under Section 164 of the Cr.P.C. Anotherwitness is Circle Officer (P.W.38 Dattu), who drawn the sketch ofthe site wherefrom the dead body was exhumed. Three of thewitnesses were Nodal Officers of Cellular Companies, namelyAirtel and Reliance. They placed on record CDRs of certain cellphone numbers along with Certificate under Section 65-B of theEvidence Act. None of the parties to this appeal referred to andrelied on their evidence. 58.The matter, however, do not rest hereat itself. Cri.Appeal No.684/2018 withconnected appeals:: 64 ::MCOCA.59.During investigation of the crime, it was found thatthe appellants Imran Mehandi and Najer Ali were involved innumber of crimes, more than one charge sheets have been filedagainst them. P.I. Telure (P.W.60), therefore, put up a proposalfor invoking offences under the MCOCA. The said proposal is atExh.527. The then Commissioner of Police, Aurangabadapproved the proposal vide his order at Exh.320 (P.W.39).Based on the same, offence under Sections 3(1)(ii), 3(2) and3(4) of the MCOCA came to be registered against the appellants.On completion of the investigation, the proposed charge sheetwas submitted to P.W.13 Javed Ahmed, who accorded sanction(Exh.200) for prosecution of the appellants and others for theoffences under the MCOCA. After invocation of the MCOCA, theinvestigation was assigned to investigating officer P.W.61Bahure. During investigation, the appellants Juber Khan, NajerAli and Syed Jahir expressed their desire to make a clean-breast/ confessional statements. It is in his evidence that, hereceived letter (Exh.390) from P.W.49 Somnath Gharge toproduce them before him.60.The proposal for invoking of MCOCA, approvalthereto and sanction for prosecution under MCOCA has also Cri.Appeal No.684/2018 withconnected appeals:: 65 ::been challenged based on contents of these documents. Wehave to see the substance. Whether it was an offence oforganised crime or any other offence under MCOCA, needs tobe decided on the facts and evidence adduced in the case.Before adverting to the confessional statements and evidence inthat regard, we need to apprise ourselves with certain relevantprovisions of the said Act. 61.The statement of object and reasons of MCOCAindicates that, it was found expedient to make specialprovisions for prevention and control of and for coping of criminalactivities by organised crime syndicate or gang and for matterconnected therewith. Organised crime has, for quite some years, nowcome up as a very serious threat to our society. It knows nonational boundaries and is fueled by illegal wealth generated bycontract killings, extortion, smuggling in contrabands, illegaltrade in narcotics, kidnappings for ransom, collection ofprotection money and money laundering etc. The illegal wealthand black money generated by the organised crime is very hugeand has serious adverse effect on our economy. It is seen thatthe organised criminal syndicates make a common cause with Cri.Appeal No.684/2018 withconnected appeals:: 66 ::terrorist gangs and foster narco terrorism which extend beyondthe national boundaries. There is reason to believe thatorganised criminal gangs are operating in the State and thus,there is immediate need to curb their activities. It is also noticed that the organized criminals makeextensive use of wire and oral communications in their criminalactivities. The interception of such communications to obtainevidence of the commission of crimes or to prevent theircommission is an indispensable aid to law enforcement and theadministration of justice. The existing legal frame work i.e. the penal andprocedural laws and the adjudicatory system are found to berather inadequate to curb or control the menace of organisedcrime. Government has, therefore, decided to enact a speciallaw with stringent and deterrent provisions including in certaincircumstances power to intercept wire, electronic or oralcommunication to control the menace of the organised crime.62.Then certain definitions contained in Section 2 of theMCOCA need to be adverted to. The same are, therefore,reproduced below : Cri.Appeal No.684/2018 withconnected appeals:: 67 ::2. (1) In this Act, unless the context otherwiserequires,— (a) “abet”, with its grammatical variationsand cognate expression, includes,—(i) the communication or association with any personwith the actual knowledge or having reason to believethat such person is engaged in assisting in any manner,an organised crime syndicate ;(ii) the passing on or publication of, without anylawful authority, any information likely to assist theorganised crime syndicate and the passing on orpublication of or distribution of any document or matterobtained from the organised crime syndicate ; and(iii) the rendering of any assistance, whether financialor otherwise, to the organised crime syndicate ;. . . . . . . (d) “continuing unlawful activity” means anactivity prohibited by law for the time being in force,which is a cognizable offence punishable withimprisonment of three years or more, undertakeneither singly or jointly, as a member of an organisedcrime syndicate or on behalf of such syndicate inrespect of which more than one charge-sheets havebeen filed before a competent Court within thepreceding period of ten years and that Court hastaken cognizance of such offence ;(e) “organised crime“ means any continuingunlawful activity by an individual, singly or jointly,either as a member of an organised crime syndicateor on behalf of such syndicate, by use of violence orthreat of violence or intimidation or coercion, or Cri.Appeal No.684/2018 withconnected appeals:: 68 ::other unlawful means, with the objective of gainingpecuniary benefits, or gaining undue economic orother advantage for himself or any other person orpromoting insurgency ;(f) “organised crime syndicate” means a group oftwo or more persons who, acting either singly orcollectively, as a syndicate or gang indulge inactivities of organised crime ; 63.Section 3 of the MCOCA prescribes for punishmentfor organised crime and other offences. Section 3 reads thus :3. (1) Whoever commits an offence of organisedcrime shall,— (i) if such offence has resulted in thedeath of any person, be punishable with death orimprisonment for life and shall also be liable to a fine,subject to a minimum fine of rupees one lac; (2)Whoever conspires or attempts to commit oradvocates, abets or knowingly facilitates thecommission of an organised crime or any actpreparatory to organised crime, shall be punishable withimprisonment for a term which shall be not less thanfive years but which may extend to imprisonment forlife and shall also be liable to a fine, subject to aminimum fine of rupees five lacs. (3) . . . . (4) Any person who is a member of an organisedcrime syndicate shall be punishable withimprisonment for a term which shall not be less thanfive years but which may extend to imprisonment forlife and shall also be liable to a fine, subject to a Cri.Appeal No.684/2018 withconnected appeals:: 69 ::minimum fine of rupees five lacs.64.For being an organised crime within the meaning ofSection 2(c) of the MCOCA, it has to be proved that it was acontinuing unlawful activity of an organised crime syndicate. Foran activity to be continuing unlawful activity,(a)the activity must be prohibited by law;(b)it must be a cognizable offence punishable with imprisonment of three years or more;(c) it must be undertaken singly or jointly;(d)it must be undertaken as a member of an organised crime syndicate or on behalf of such syndicate;(e)in respect of which more than one charge-sheet have beenfiled before a Competent Court and the Court has takencognizance thereof.65.Filing of more than one charge sheet before thecompetent Court within the period of preceding ten years and theCourt has taken cognizance of such offence has to be againstorganised crime syndicate (Ref : Prasad Shankar Purohit Vs.State of Maharashtra & anr. (2015) 7 SCC 440, Zakir MirajkarVs. State of Maharashtra (SC) 2022 ALL MR (CRI) 3798.66.It has been observed in paragraph No.77 in ZakirMirajkar’s case (supra) that :- Cri.Appeal No.684/2018 withconnected appeals:: 70 ::“77.. . . . It is settled law that more than onecharge sheet is required to be filed in respect ofthe organised crime syndicate and not in respectof each person who is alleged to be a memberof such a syndicate.”67.For prosecution for the offence of abetment oforganised crime, it is not necessary that more than one chargesheet to have been filed before the competent Court within thepreceding period of ten years and that Court has takencognizance of such offence. Abetment of an organised crimeand the organised crime are two different and distinct offences.However, for an offence of being a member of an organisedcrime syndicate, in our view, the requirement of filing of morethan one charge sheets as is required within the term ofcontinuing unlawful activity, within the meaning of Section 2(1)(d), would be a condition precedent.68.Let us now advert to the material on record to findwhether the provisions of MCOCA have rightly been invoked.The proposal for invoking MCOCA was moved by PoliceInspector Telure on his own. It is true, we have come across thepapers indicating family member of the deceased to have filed aproceeding before the Special Court for invoking MCOCA andthe Special Court to have given a direction thereon to investigate Cri.Appeal No.684/2018 withconnected appeals:: 71 ::and file report. However, in the proposal and sanction order, wedo not find any reference to the Special Court’s order. Validity ofthe Special Court passing such order is not in question beforeus. 69.The proposal for invoking the provisions of MCOCAis dated 31/3/2012. it is at Exh.527. Page Nos.1493 to 1495contain 6 crimes including the present one, registered againstthe appellant Imran Mehandi and others. The status of thosecrimes is shown as pending investigation. These crimes are,therefore, not relevant for invoking the offence under MCOCA.On page 1496 of the Paper Book, the chart showing 4 previouscrimes registered against the appellant Imran Mehandi andothers has been given. For better appreciation, the same needsto be reproduced below:v-dza-iksyhlBk.ksxqUgk uacj o dyevkjksihps ukoTkIr eqíssekynks”kkjksii=xqUgkph l|fLFkrh01-Nko.kh3054@2009 dye3]25 ‘kL= vf/kfu;e1- ‘ks[k bezku ‘ks[kulhj mQZ bezku esganh2- l¸;n uktsjvyh l¸;n uklsjvyh 3- ‘ks[k uklsj ‘ks[kpkWan 4- ijost[kku vQty[kku 5- pkS/kjh ‘ks[k lksgsy ‘ks[k dklhe nksu vWVksesVhd fiLrksy] 9 mm-] 5]56mm-ch,e&97 ds,Q] 12] Bore 7]6] mm ps] ,dw.k 77ftoar dkMrqls-55@2009 fnukad 24-12-2009vkjlhlh ua-2219@09 fnukad 24-12-2009 iq<hy rkjh[k 5-5-20122dzkarhpkSd371@2010 dye 379] 34 Hkknafo-1- ‘ks[k bezku mQZ bezku esganh firk ‘ks[k ulhj,d flYOgj jaxkph ctkt iYlj eksVkj 48@2011 fnukad 14-02-2011vkjlhlhua- 362@11 fnukad 17- Cri.Appeal No.684/2018 withconnected appeals:: 72 ::2- vkcsn mQZ NksVw ;kpsfo#/n lhvkjihlh 299 izek.ks nks”kkjksii= nk[ky- `lk;dy03-2011 iq<hy rkjh[k 09-04-20123-Nko.kh323@10 dye 143] 147]148]149]323]427]504]506 Hkknafo1- bezku u’khj ‘ks[k mQZ esganh2- vklsQ [kku len [kku3- l¸;n uktsj vyh l¸;n uklsjvyh 4- ehj ,sgsrs’kke vyh tQj vyh-5- ‘ks[k tkosn ‘ks[k jkteagen------81@2011 fnukad 21-04-2011vkjlhlhua-651@2011fnukad 18-05-2011iq<hy rkjh[k 26-04-20124-Nko.kh23@2011 dye 143]147]447]420]467]468] 471] 506 Hkknafo lg dye 3¼1½ ¼M½ ¼10½vtktizdk-o 7¼1½ ¼M½ ukgla-1- vkflQ [kku vCnqy len [kku2- ehj ,ssgsrs’kkevyh tQj vyh3-eksgaen ekschuch flíhdh dejksnhu flíhdh4- ‘ks[k bezku mQZesganh ‘ks[k ulhj-----95@2011 fnukad 02-05-2011 ls’ku dsl ua-22@12 iq<hy rkjh[k 23-04-201270.Only appellant Imran Mehandi and Syed Najer Ali arethe accused in the crimes mentioned at Sr.Nos.1 and 3 of theabove chart. As such, according to prosecution, it is anorganised crime syndicate headed by appellant Imran Mehandi,of which Syed Najer Ali was the member. If it was found that thecrime in question was an organised crime, then other appellantsmay be held guilty of offence of abetment of organised crime ifthe prosecution makes out a case of them to have consciouslyrendered any assistance to the organised crime syndicate ofappellant Imran Mehandi and Najer Ali. Consciousness has tobe in respect of their knowledge as to both Imran Mehandi and Cri.Appeal No.684/2018 withconnected appeals:: 73 ::Najer Ali constituted an organised crime syndicate and they areassisting the commission of their crime.71.Let us take each of the four crimes seriatim. The firstone pertained to an offence under Section 3 read with 25 of theArms Act. The charge sheet in respect of the said crime wasfiled on 14/12/2009. Section 25 of the Arms Act prescribespunishment for certain offences. Sub-section (1-B) thereof readsthus :“(1-B) Whoever – (a) acquires, has in his possession or carries any fire-arm or ammunition in contravention of Section 3; ”shall be punishable with imprisonment for a termwhich shall not be less than two years but which mayextend to five years and shall also be liable to fine:Provided that the Court may for any adequate andspecial reasons to be recorded in the judgmentimpose a sentence of imprisonment for a term of lessthan two years.”72.The words ‘two years and five years’ have beenintroduced by an Amending Act 48 of 2019 w.e.f. 14/12/2019.Before that, the said offence was punishable with imprisonmentfor a term which shall not be less than one year but which mayextend to three years. Cri.Appeal No.684/2018 withconnected appeals:: 74 ::73.The second crime pertains to the offence punishableunder Section 379 read with Section 34 of the Indian PenalCode. The charge sheet was filed in February 2011. It pertainedto the theft of a motorcycle. Section 379 of the Indian PenalCode reads thus : “379. Punishment for theft:- Whoever commits theftshall be punished with imprisonment of eitherdescription for a term which may extend to threeyears, or with fine, or with both.”74.It is reiterated that, except appellant Imran Mehandi,none of the other appellants or acquitted persons was anaccused in the said case.75.The next offence alleged to have been committedrelating to crime at Sr.No.3 is an offence punishable underSection 427 of the Indian Penal Code, which is punishable withimprisonment of either description for a term which may extendto two years or with fine or with both. While punishmentprovided for offence under Sections 143, 147 and 148 of theIndian Penal Code is as follows : 143-which may extend to six months, or with fine, or with both. Cri.Appeal No.684/2018 withconnected appeals:: 75 ::147-which may extend to two years, or with fine, or with both.148-which may extend to three years, or with fine, or with both.76.It is only the crime at Sr.No.4 for which punishmentprovided for some of the Sections invoked is for a period morethan three years, namely Sections 467, 468, 471 of the IndianPenal Code. In this case, however, except appellant ImranMehandi, none of the appellants or an acquitted person was theco-accused with him. As such, the charge sheets filed pertainingto the crimes at Sr.Nos.2 and 4 in the above chart could not besaid to have been filed against organised crime syndicate ofappellants Imran Mehandi and Najer Ali.77.Since the provisions of MCOCA are stringent, itwarrants strict interpretation thereof. In paragraph No.33 of thejudgment of the Apex Court in case of State (NCT of Delhi) Vs.Brijesh Singh Alias Arun Kumar & Another (2017) 10 SCC 719, ithas been observed thus : “33.FIR No.122 of 2010 is registered underSections 341, 506 read with Section 34 IPC.Section 341 IPC is punishable with a maximumsentence of one month, though it is a cognizableoffence. Section 506 IPC is a non-cognizableoffence which was made a cognizable offence by anotification issued by the Delhi Government. Thisnotification was quashed by the High Court of Delhi Cri.Appeal No.684/2018 withconnected appeals:: 76 ::on 13/1/2004 (Narendra Kumar V. State, 2004 SCCOnLine Del 17 : (2004) 72 DRJ 620). A secondNotification for the same purpose was issued by theDelhi Government on 31/3/2004 which waschallenged in WP (C) No.2596 of 2007. The HighCourt of Delhi initially stayed (Rajeev Mehra v.State, 2007 SCC OnLine Del 1200 : (2007) 143 DLT432) and ultimately struck down the secondnotification on 18/1/2016. (Rajeev Mehra v. State,2016 SCC OnLine Del 6575). As such, Section 506IPC was a non-cognizable offence at the date ofregistration of the FIR and filing of the charge-sheet.Only an unlawful activity which is a cognizableoffence punishable with minimum sentence of threeyears or more would be a continuous unlawfulactivity under Section 2(1)(d) of the Act. Hence,FIR no.122 of 2010 cannot be taken into account.”(emphasis supplied)78.In offences at Sr.No.1 and 3 in the above chart,charge sheets were filed against appellant Imran Mehandi andNajer Ali, none of the offences therein was punishable with aminimum term of imprisonment for a period of three years. 79.For the aforesaid reasons, the present crime couldnot be termed to be an organised crime committed by anorganised crime syndicate headed by appellant Imran Mehandi,of which the appellant Najer Ali is alleged to be a member. In ourview, therefore, the offences under MCOCA ought not to havebeen invoked. Cri.Appeal No.684/2018 withconnected appeals:: 77 ::80.Section 11 of the MCOC Act reads thus : “11.Power to transfer cases to regular Courts : Where, after taking cognizance of an offence, aSpecial Court is of the opinion that the offence is nottriable by it, it shall, notwithstanding that it has nojurisdiction to try such offence, transfer the case fortrial of such offence to any Court having jurisdictionunder the Code and the Court to which the case istransferred may proceed with the trial of the offenceas if it had taken cognizance of the offence.”81.In the case in hand, none of the accused before theTrial Court resorted to Section 11 of the MCOCA. The Charge(Exh.81) was framed. The appellants faced the charge foroffences under Sections 3(1)(ii), 3(2) and 3(4) of the MCOCA.This provision (Section 11) has some relevance in this case and,therefore, mention thereof has been made.82.The relevancy is as regards admissibility ofconfessional statements. In this case, appellants Juber Khan,Najer Ali and Jahir have made confessional statements. Beforeadverting to evidence in that regard, it would be apposite toreproduce relevant provisions and rules thereunder in thatregard. Section 18 of the MCOCA reads :“18.Certain confessions made to police officer tobe taken into consideration :- Cri.Appeal No.684/2018 withconnected appeals:: 78 ::(1)Notwithstanding anything in the Code or inthe Indian Evidence Act, 1872, but subject to theprovisions of this Section, a confession made by aperson before a police officer not below the rank ofthe Superintendent of Police and recorded by suchPolice Officer either in writing or on any mechanicaldevices like cassettes, tapes or sound tracks fromwhich sounds or images can be reproduced, shall beadmissible in the trial of such person or co-accused,abettor or conspirator :Provided that, the co-accused, abettor or conspiratoris charged and tried in the same case together withthe accused. (2)The confession shall be recorded in a freeatmosphere in the same language in which theperson is examined and as narrated by him.(3)The police officer shall, before recording anyconfession under sub-section (1), explain to theperson making it that he is not bound to make aconfession and that, if he does so, it may be used asevidence against him and such police officer shallnot record any such confession unless uponquestioning the person making it, he is satisfied thatit is being made voluntarily. The concerned policeofficer shall, after recording such voluntaryconfession, certify in writing below the confessionabout his personal satisfaction of the voluntarycharacter of such confession, putting the date andtime of the same.(4)Every confession recorded under sub-section(1) shall be sent forthwith to the Chief MetropolitanMagistrate or the Chief Judicial Magistrate havingjurisdiction over the area in which such confessionhas been recorded and such Magistrate shall forwardthe recorded confession so received to the SpecialCourt which may take cognizance of the offence. Cri.Appeal No.684/2018 withconnected appeals:: 79 ::(5)The person from whom a confession has beenrecorded under sub-section (1) shall also beproduced before the Chief Metropolitan Magistrateor the Chief Judicial Magistrate to whom theconfession is required to be sent under sub-section(4) along with the original statement of confession,written or recorded on mechanical device withoutunreasonable delay.(6)The Chief Metropolitan Magistrate or theChief Judicial Magistrate shall scrupulously recordthe statement, if any, made by the accused soproduced and get his signature and in case of anycomplaint of torture, the person shall be directed tobe produced for medical examination before aMedical Officer not lower in rank than of anAssistant Civil Surgeon.” Rule 3 of the MCOC Rules, 1999 reads :-“3.Procedure for recording of confession underSection 18 of the Act. (1)The Police Officer recording a confessionunder Section 18 of the Act shall record it asprovided in sub-rules (2) to (7) of this rule.(2)When the person whose confession is to berecorded is produced before such Police Officer, noPolice Officer who has taken part in theinvestigation of the offence in connection withwhich the confession is being recorded, shall beallowed to remain present at the time of recording ofthe confession.(3)The Police Officer recording the confessionshall explain to the person making the confession Cri.Appeal No.684/2018 withconnected appeals:: 80 ::that he is not bound to make such confession andthat if he does so, such confession may be used asevidence against him.(4)After having been so explained and warned, ifsuch person adheres to his intention and insists onmaking a confession, the concerned Police Officer,who is to record the confession shall give, not lessthan 24 hours time to the person making theconfession for reconsideration of his decision tomake confession.(5)After elapsing of the time given under sub-rule (4), when such person is again brought beforesuch Police Officer, he shall once again ascertainfrom the person intending to make the confessionwhether he is still willing to make a confession.Upon such person reiterating his desire to make aconfession, the concerned Police Officer shall recordin writing the confession of such person in the samelanguage and as narrated by the confessor.(6)The confession recorded under sub-rule (5)shall, if it is in writing, be signed by the person whohas made such confession and by Police Officer,who has recorded the said confession. Such PoliceOfficer shall, under his own hand, also make amemorandum at the end of the confession to thefollowing effect :--“I have explained to (name of the confessor)that he is not bound to make a confession andthat, if he does so, any confession that hemakes, may be used as evidence against himand I am satisfied that this confession has beenmade voluntarily. It has been made before meand in my hearing and has been recorded by mein the language in which it is made and asnarrated by, the confessor. I have read it overto the confessor and he has admitted it to beverbatim and correct, and containing also full Cri.Appeal No.684/2018 withconnected appeals:: 81 ::and true account of the confession/ statementmade by him.”(7)Where the confession has been recorded onany mechanical device, the memorandum referred toin sub-rule (6) above, in so far as it is applicable,shall be incorporated in the form of a declarationmade by the Police Officer recording the confession,by recording such declaration on the mechanicaldevice at the end of the confession to the effect thatthe confession recorded on the mechanical devicehas been correctly recorded in his presence andhearing and that the recorded statement/ confessionhas been played back to the confessor and afterhearing it, it has been admitted by him to be full,correct and without any technical faults in recording.(8)The Police Officer recording the confessionshall, after forwarding the certified copy of theconfession made or retraction, if any, thereof, to theChief Magistrate or the Chief Judicial Magistrate asprovided in sub-section (4) of Section 18 of the Actand after ascertaining that the Chief Magistrate orthe Chief Judicial Magistrate has, as provided insub-section (6) of the said Section 18, forwarded theconfession to the Special Court for takingcognizance of the offence, supply a copy of theconfession recorded by him to the InvestigatingOfficer, who is conducting investigation into theoffence in connection with which, or relating towhich, such confession has been made, for thepurpose of investigation.”83.With a view to avoid the judgment to become furtherbulky, we do not propose to refer to in extenso the oral evidenceof P.W.48 Katke, P.W.49 Gharge, P.W.61 Bahure, P.W.50 Palveand P.W.52 Keru Khod, Police Officers, who were examined in Cri.Appeal No.684/2018 withconnected appeals:: 82 ::relation to proof of confessional statements. There is one morereason for us not to refer to their evidence in extenso since nosubmissions were advanced as regards breach of mandatoryprovisions of Section 18 and Rule 3 referred to hereinabove. Itwas only submitted that, although the confessional statementsare admissible, their probative value and corroboration theretoare independent matters. 84.Still, a brief reference to evidence of these witnessesis a must. P.W.49 Somnath Gharge was Deputy Commissionerof Police, Headquarters, Aurangabad. He was competent officerto record confessional statement under Section 18. Hisevidence indicates that, the Commissioner of Police had directedhim to record confessional statements of Juber Khan ShabbirKhan and others. He placed on record communications in thatregard vide Exh.380, Exh.389 and Exh.393. Close reading of hisevidence would indicate that, first he recorded confessionalstatement of appellant Juber Khan. He directed the investigatingofficer to produce Juber Khan before him at 11.00 a.m. on24/4/2012. A communication made by him in that regard is atExh.381. Juber Khan was accordingly produced before P.W.49.P.W.49 interacted with Juber Khan and informed him that he wasno way concerned with the investigation of the crime. It is furtherin his evidence that, Juber Khan disclosed his desire to make a Cri.Appeal No.684/2018 withconnected appeals:: 83 ::confessional statement. He informed Juber Khan that he wasnot bound to make a confessional statement and if he made anysuch statement, the same would be used against him and co-accused as well. He also ascertained whether he was inducedor compelled to make a confessional statement. Number ofquestions were put to Juber Khan to ascertain his voluntarinessto make a confessional statement. It is at Exh.382 (Part I). Wehave perused all those questions and replies given by JuberKhan thereto. It also bears his (Juber Khan’s) signature besidesthe signature of P.W.49 with date and time. Juber Khan wasgiven 24 hours time for reflection. He was given into custody ofP.S.I. Shri Palve (P.W.50), attached to Cidco Police Station with aspecific direction to keep Juber Khan in a lock up of Cidco PoliceStation and ensure that no officer connected with theinvestigation shall have an occasion to contact him during suchcustody. Mr. Palve was asked to produce Juber Khan againbefore him (P.W.49) by 5.00 p.m. on 25/4/2012. He wasaccordingly produced. Again similar questions were put to him.The replies given by Juber Khan have been recorded. Theofficer concerned was satisfied that Juber Khan wanted to makea confessional statement voluntarily. He, therefore, recorded thesame. 85.Part II of the confessional statement (Exh.383) of Cri.Appeal No.684/2018 withconnected appeals:: 84 ::Juber Khan reads thus : eS tqcsj [kkWu firk ‘kCchj [kkWu iBk.k] mez 28 lky] /kank [kktxhukSdjh irk& feukjk eLthn ds ikl] dSlj dkWyuh] vkSjaxkckn-eS mij fn,s gq,s irs ij jgus okyk gq k lu 2003 ls vkSjaxkckn esjgus ds fy, vk;k gq k esjh ‘kknh lu 2009 es lkfu;k rCclqe dslkFk yksVk dkjatk eLthn vkSjaxkckn es gqbZ gS k esjh ‘kknh gks.ks dsckn lu 2009 es eS dke dj.ks ds fy, lkSnh vjsfc;k x;k Fkk klkSnh vjsfc;k es fj;kn ‘kgj es eS fMftVy usVodZ dE;qfuds’kudaiuhes vWVks dWM vkWijsVj inij 11 ekpZ 2011 rd ukSdjh dh gS kml ds ckn fotk [kre gksus dh otg ls eS vkSjaxkckn dks okil vkxk;k k vHkh eS Mh-ih-vWVks ikVZl izk-fy- ,e- okGqt es ukSdjh djrkFkk k eS vkSjaxkckn dks jgus ds fy, vk;k rc dqN fnu psyhiqjk eksgYyses ?kj fdjk;sls ysdj jgk k Ål oDr esjh igpku lS¸;n tghj mQZ‘ksjk ls gqbZ k igpku nksLrh es cny xbZ k ‘ksjk ml oDr iksYVªh QkeZpyk;k djrk Fkk k Åldk [kqyrkckn es iksYVªh QkeZ Fkk klkSnh vjsfc;kls ls okil vkus ds ckn eq>s fQjls u;k fOgtk ysuk Fkkbl fy, eSus ‘ksjk ls dksbZ igpku dk gS D;k ,Slk iqNusij Ålusbezku dk uke crk;k k vkSj Åldk nksLr vln ¼vlhy VqlZ vW.MVªOgYl eqacbZ½ ;g eqacbZ es jgrk gS vkSj og Oghtk fudky dj nsrk gS,Slk crkusls eS ‘ksjkds lkFk ikp ls N efgus ifgys bezku esagnhlsÅlds jkW;y lOghaZflax lsUVj] dVdV xsV] vkSjaxkckn ij nksigjes oDrfeyk Fkk k rc ls esjh vkSj bezku esganh dh igpku gS k rkjh[k 03-03-2012 ds jkr X;kjg cts ds le; bezku esganh dkesjs eksckbZyij Qksu vk;k Ålus crk;k dh] ‘ksjk dk Qksu yx ughjgk gS k bezku esganh ds crkus ls eSus ‘ksjk dks nks fru ckj Qksuyxk;k rc Åldk Qksu ukWV fjpscy crk jgk Fkk k ysdhu Vªk; djusij ‘ksjk dk Qksu yx x;k rc eSus bezku HkkbZus cqyk;k gS ,Slk Ålscrk;k k rc ‘ksjk us eq>s dgk dh rq Hkh rS;kj jgs] viu nksUgks tkdjvk,saxs ,Slk dgus ij eS r;kj gks x;k k Ålds FkksMh nsj ckn ‘ksjkÅldh dfj÷ek xkMhij vk;k rc eS Ålds xkMhij cSB dj bezkuesganhds vklsfQ;k dkWyuh ds ?kj ij x;k k ogk ij gels igys bezkuesganh vkSj uqeku gkthj Fks k ogk ij FkksMh nsj ckrfpr dj.ks ds cknbezku esganh gedks muds lkFk Ålds ?kj ds cktq ds xyh es ysdjx;k k ogkij ,d lQsn jax dh ek#rh OgWu [kMh Fkh k Åles uktsj Cri.Appeal No.684/2018 withconnected appeals:: 85 ::vyh] Qjhn[kkWu] lqyrku] [kkysn igysls gh cSBs gq, Fks k xkMh escSBus ds fy, bezku us ges dgk k ‘ksjk] eS vkSj uqeku OgWu es cSB x;sk Ål oDr bezku us ges crk;k dh lyhe dqjS’kh dks /kMk fldkuk gSog eLthn ds ekSykuk dks xkyh xyksp djrk] eLthn dk iSls [kkrk]xjhcks dks lrkrk gS k eq>s dgk dh rw xkMh es lkeus cSB ‘ksjk xkMhpyk;saxk vkSj lyhe dqjS’kh ds xkMh ds lkeus xkMh yxk;saxk rq fupsmrjus dk D;q js fn[krk ugh D;k\ va/kk gS D;k\ ,slk dg dj xkyhxyksp djuk k FkksMs nsj ds ckn jkr ,d ls nsM cts ds njE;ku bezkuesganh dks ‘kks,c dk Qksu vk;k k Ålds ckn bezku us ‘ksjk dks crk;kdh] lyhe dqjS’kh fudyk gS k Ålds ckn ‘ksjk us xkMh pkyq dh]lyhe dqjS’kh dh xkMh utnhd vkrs gh ‘ksjkus LihMes OgWu vkMhyxkbZ k eS xkMh ds uhps mrjk vkSj lyhe dks xkyh xyksp dh] blfy, og Ålds xkMh ds uhps mrjk vkSj cksyk D;k gqvk esjh xyrhugh k rc bezku esganh] uqeku] lqyrku vkSj Qjhn bUgksus lyhedqjS’kh dks mBkdj Ålds gh xkMh es nkyk k uktsj vyhus xkMh pkyqdh vkSj fl/ks iMsxko ds rjQ dklacjh uxj es lyhe dqjS’kh dksysdj vk,s k ge Åuds fiNs fiNs OgWu es vk,s ‘ksjk OgWu pyk jgkFkkk ogk ij iksgpus ds ckn bezku esganh us lyhe dqjS’kh dks xkMhdsfups mrkjk vkSj Ålds gkr fpdV iVVh ls cka/k fn, k Ålds cknesganh ds dgus ij ‘ksjk vkSj uktsjvyhus lyhe dh xkMh vkSjaxkckndks NksM nh k vkSj okil esganh ds ctkt fl Vh 100 eksVkj lk;dyij dklacjh uxj ds igkMds iMhr txsij vk,s k ge lcus lyhedqjS’kh dks bezku esganh ds dgus ls eqg vkSj fljij FkIiM ls ekjk kbezku esganh us lyhe dqjS’kh dks loky fd;k dh rwus cgksr xjhcks dksyqVk gS csok vkSjrks ds ?kj fy;s gS k vkSj jksM is ls cPph yksxksdksmBkds muds lkFk xyr dke fd;k vkSj eLthn ds pansds iSls Hkhfy, gs k ,Slk lyhe dqjS’kh dks iqNrs oDr eSus dqN Hkh ugh fd;kdqN ys nsds eq>s NksM nks k ,Slk lyhe dqjS’kh us dgk k rc bezkuesganh us Hkh lyhe dqjS’kh dks ekjk k Ålds ckn Ål txgk ij gelc us xMMk [kksnk k Ålds ckn bezku esganh vkSj lqyrku nksUgksauslyhe dqjs’kh dks xMMs ds ikl ysdj vk,s- rc lyhe dqjs’khus bezkuesganh dks fcurh dh vkSj cksyk eSus vkt rd ftrus Hkh xqUgs fd,og eq>s eatqj gS k esjh izkWiVhZ xjhckses ckVus ds fy, rS;kj gs k ysdhubezku esganhus Åldk dqN Hkh lquk ugh rc bezku esagnh vkSj lqyrkuNksMdj ge lc FkksMk cktqes gks x,s k Ålds ckn bezku esganh vkSjlqyrku nksuksagh lyhe dqjs’kh ds lkFk xMMsds ikl ekStqn Fks k FkksMhnsj ckn lyhe dqjS’kh dk vk s s s s ,Slk vkokt vk;k k bezkuesganhus tksj ls xkyh nsdj ges mlds ikl cqyk;k k ge lc ogk x;src lyhe dqjS’kh ds mij bezku vkSj lqyrku us feV~Vh Mkydj vk/kkxMMk Hkj fn;k Fkk k ,lds ckn bezku esganhus ge lcdks feVVh<dsyus ds fy, dkg rc geus Ål xMMs es feVVh nkydj mls xkM Cri.Appeal No.684/2018 withconnected appeals:: 86 ::fn;k k ml ds ckn bezku esganh vkSj uqeku Åldh eksVkj lk;dyijvkSj ge lc OgWu es cSBdj vkSjaxkckn dks vk,s k Ål oDr vanktuN ct jgs gksaxs k uktsj vyhus OgWu jfojkt gkWVsy ds fiNs NksM nhÅl txk bezku esganh igkspk k Ålus ges ;g ckr fdlh dks crk;srks lyhe dqjS’kh tSlk gky d#axk ,Slk dgk vkSj ?kj tkus ds fy,cksyk k Ålds ckn eS fj{kkls esjs ?kj dks x;k k dqN fnu igys bezku esganh us eq>s ,d dkxtij fMtkbZu fudkydj fn;k Ålij ls eSus ,d yksgs dh fiu r;kj djds og bezkuesganh ds ikl fn;k k mlij ls bezku esganh us esjs vkSj ‘ksjk ds lkeusbl ;a=es jkmaM nkydj Åls mMkdj crk;k k cknes ogk yksgs dh fiuesjs ikl fn;k rks eSus og yksgs dh fiu esjs ikl j[kk Fkk k rikl esiksyhl dks fn;k gS k;g bdckyh;k tckc vkt rkjh[k 25-04-2012 ds 17-00 cts‘kq# djds 21-00 ctss iqjk fd;k k 86.Immediately below the confessional statement,P.W.49 appended his certificate indicating compliance of Section18(3) of the MCOCA. Juber Khan was then given to the custodyof Shri Palve with a direction to produce him before the learnedChief Judicial Magistrate along with a confessional statementkept in a closed/ sealed envelope.87.P.W.50 Shri Palve testified, indicating compliance ofthe directions given by P.W.49 Somnath. He placed on recordstation diary and lock-up register entries in that regard.(Exhs.408 to 418). His evidence further indicates that, heproduced Juber Khan before the learned Chief JudicialMagistrate on 26/4/2012. The learned Chief Judicial Magistrate Cri.Appeal No.684/2018 withconnected appeals:: 87 ::recorded his statement (Exh.401), wherein Juber Khan statedthat, his confessional statement was already recorded by policeon 9 March 2012 and he was simply made to sign the same on25 April 2012. For better appreciation, his statement before thelearned Chief Judicial Magistrate is reproduced below : vkjksihpk tckc ek>s uko tqcsj[kku ‘kCchj [kkuo; & 28 o”kZ /kank & ukSdjh jk- pkyhlxkaoek>s uko tqcsj[kku ‘kCchj[kku vkgs- fnukad 24-04-2012 o 25-04-2012 jksth lkseukFk xxsZ iksyhl mik;qDr ;kauh ek>k tckcuksanoyk gs Eg.k.ks cjkscj vkgs- iksfylkaP;k fo#/n ek>h dkgh rdzkjukgh- fnukad 07-04-2012 jksth eyk glqZy dkjkx`gke/;sikBfo.;kr vkys- fnukad 12 fdaok 13 rkj[ksyk eyk tsy e/kquckgsj dk<ys- rsOgk U;k;ky;kleksj gtj dsys- rsOgk iklwu eh iksfylfgjklr e/;s vkgs- fnukad 27-04-2012 jksth Ik;Zar ek>h iksyhlfgjklr e/;s vkgs- lnj tckc ifgY;kiklqup fygqu r;kj gksra-R;krhy etdqj eh okpqu ?ksrya- R;koj eh lgh dsyh- fnukad 24-04-2012 jksth eh tckc fnyk ukgh- QDr xxsZ lkgsckauk HksVwu vkykso fnukad 25-04-2012 jksth ek>h lgh ?ksryh- fnukad 25-04-2012 jksth lgh dj.;kiqohZ rks tckc eh okpya rlk tckc ehfnysyk uOgra- fnukad 09-03-2012 jksth iksfylkauh tckc fygwueyk lgh dj.;kl lkafxrys] okpqu ?ks.;kl lkafxrys- eh okpqu?ksrys- R;kus rks tckc ikB d#u rlkp tckc ns.;kl lkafxrys-fnukad 25-04-2012 jksth ;k tckckoj eh lgh dsyh- rks tckcrlkp gksrk- R;keqGs eh R;koj lgh dsyh- R;kf’kok; eyk vk.k[khdkgh lkaxk;kps ukgh- fnukad 24-04-2012 P;k tckckoj vktekxP;k rkj[skr eyk lgh djk;yk ykoys- okpqu ikfgys o fygyscjkscj vkgs- Eg.kqu lgh dsyh- Lok{kjh le{k tqcsj[kku ‘kCchj[kku Lok{kjheq[; U;k;naMkf/kdkjhvkSjaxkckn Cri.Appeal No.684/2018 withconnected appeals:: 88 :: The learned Chief Judicial Magistrate passed orderbelow Exh.1 in Cri.M.A. No.630/2012 which reads :1.Today, the Accused namely JuberkhanShabbirkhan is produced by Police Sub InspectorMukund Palve. He has produced the AccusedJuberkhan and one sealed envelope from SomnathGarge, D.C.P., Head Quarter, Aurangabad, addressedto this Court along with this application. I haveperused the application and relevant section 18 ofthe Maharashtra Control of Organised Crime Act,1999. I have opened the envelope and perused thetwo parts of the statements purportingly given by theAccused. I have brought them to the notice of theAccused. I have heard him and recorded hisstatement under Section 18(6) of the said Act. It isincorporated in this proceeding. The Accused hasno complaint of illtreatment or torture.2.The statement be again kept in packet and itbe sealed with my signature. The statement of theAccused along with this proceeding and Roznamabe forwarded under Section 18(4) of the said Act tothe Special Court. The Accused be sent back to thecustody.”88.Then, following the similar procedure and mandate ofSection 18 and Rule 3, P.W.49 Somnath recorded confessionalstatement of appellant Najer Ali. It is in his evidence that heasked Shri Bahure (P.W.61) to produce appellant Najer Ali beforehim on 11/5/2012. Najer Ali was accordingly produced beforehim. The investigating officer was asked to leave. Then P.W.49interacted with Najer Ali, put him certain questions and from Cri.Appeal No.684/2018 withconnected appeals:: 89 ::replies thereto, was satisfied that Najer Ali wanted to make aconfessional statement, voluntarily. Part I of confessionalstatement of Najer Ali is at Exh.391. We have perused the sameto find it to be in compliance with Section 18 and Rule 3 of theMCOCA. Najer Ali was given to the custody of P.W.48 Katkewith a specific direction to keep Najer Ali in a lock-up of CidcoPolice Station and ensure that no officer connected with theinvestigation shall have an occasion to contact him during suchcustody. Mr. Katke was asked to produce Najer Ali again beforehim (P.W.49) by 5.00 p.m. on the following day. Accordingly,P.W.48 Katke kept Najer Ali in lock-up of Cidco Police Stationand accordingly he was produced. Again similar questions wereput to him. The replies given by Najer Ali have been recorded.The officer concerned was satisfied that Najer Ali wanted tomake a confessional statement, voluntarily. He, therefore,recorded the same as below : eS lS¸;n uktsj vyh lS¸;n uklsj vyh] mez 24 lky] irk &dklacjhuxj] iMsxko] rk-ft- vkSjaxkckneS mij fn,s irs is esjh eka] firkth] cgsu] HkkbZ] fcch vkSj cPpks dslkFk jgsrk gq k eS etnqjh dj ds isV Hkjrk gq k eS vkB lky igysvklsfQ;k dkWyuh] VkÅu gkWy ;gk ij jgrk Fkk k esjk ogk is [kqndk?kj Fkk k og ?kj cspdj eSus dklacjh uxj es ?kj fy;k gS k eSvklsfQ;k dkWyuh es jgrk Fkk k bl fy, esjh ogk jgus okys bezkumQZ esganh vkSj lyhe dqjS’kh buds lkFk vPNh tku igpku Fkh k <kbZ efgus igys bezku esganh ds dVdV xsV ds okf’kax lsaVj ij eS]‘ksjk] tqcsj] uqeku] [kkysn] ‘kks;sc vkSj Qjhn cSBs Fks rc bezku esganh Cri.Appeal No.684/2018 withconnected appeals:: 90 ::us ge lc dks dgk dh] ßvkflfQ;k dkWyuh es jgusokyk lyhedqjS’kh dks mBkuk gS k Åldk vxok djus ds ckn og vius dks 50yk[k #i;s nsxk k oks iSls lc vkil es ckV ysaxs k bl fy, ge lcus IyWu cukdj Ålds lkFk jgsus dk QSlyk fd;k krkjh[k 02@03@2012 dks ge lc tc bezku esganh ds okf’kax lsVjij Fks k rc ogk eqacbZ es jgusokyk lqyrku uke dk yMdk ogkvk;k Fkk k ml oDr bezku esganh us gels cksyk dh] ßvkt lyhedqjS’kh dks mBkuk gSÞ mlds ckn lc vklsfQ;k eLthn ds ikl vk;sk ogk ij bezku cksyk dh] lyhe dqjS’kh dh dkj vkrs gh dkj dkseksVkj lk;dy ls VDdj nsdj mls mlh ds xkMhes ysdj tkuk gS kml jkr lyhe dqjS’kh jkr ,d cts dkj es vk;k ysdhu Åldsvktwcktw yksx gksus dh otg ls mls mBk ugh lds k blfy, geokil vk,s k rkjh[k 03@03@2012 dks jkr bezku esagnh us ‘kks,sc dks eksVkjlk;dyij jkWDlh VkWdht ds ikl Hkstk k vkSj lyhe dqjS’kh fudyusds ckn crkus ds fy, dgk k fQj ls ge lc vklsfQ;k eLthn dsikl vkdj [kMs jgs k Ål fnu lyhe dqjS’kh jkr es ckjk cts vk,sysdhu lcus dgk dh ckn es mBk,saxs k rkjh[k 04@03@2012 dks eS ?kj dks Fkk rc N cts ds oDrHkksbZokMk dk tkdsj esjs ikl vk;k vkSj ge nksuks ckck isVªksy iai dsikl okbZu ‘kkWi ls fcvj ysdj HkMdy xsV ds ikuh ds Vkdh ds iklfcvj firs cSBs Fks k ogk esjs eksckbZy ij bezku esagnh dk Qksu vk;kvkSj Ålus crk;k dh] rq tYnh vk] vius dks tkus dk gS k ysdhueSus esjk Qksu can dj fn;k k eS jkr es 10 cts rd fcvj firs cSBkk ogk xqMMq vkSj mldk nksLr Hkh vk;k Fkk k geus vkB uÅ fcvjfi;s Ålds ckn nl cts eSus esjk eksckbZy pkyq fd;k k rc fQj lsbezku esganh dk QkSu vk;k vkSj Ålus eq>s vtZaV Ålds dVdV xsVds okf’kax lsaVj ij cqyk;k k eq>s tkdsj us dVdV xsV ij NksMk vkSjog pyk x;k k eS bezku esganh ds okf’kax lasVj ij x;k ogk ijlqyrku] bezku] ‘kks,c] [kkysn vkSj uqeku gkthj Fks kjkres X;kjk lkMs X;kjk cts ‘kks,c Åldh eksVkj lk;dyuacj ,e-,p20-chih&5013 ij cSBdj jkWDlh VkWdht ds rjQ x;kk lyhe dqjS’kh jkWDlh VkWdht ls fudyus ds ckn ‘ks,c bezku esganhdks Qksu djus okyk Fkk eS] lqyrku] [kkysn] Qjhn ,Sls vkseuh escSBs Fks k vkseuh dkj ‘ksjk pyk jgk Fkk k uqeku vkSj bezku esganheksVkj lk;dy uacj ,e-,p-20,D;q 4311 ij Fks k ge lcvklsfQ;k dkWyuh ds ikl cq&gk.k dkWyuh es ikl vkdj #d x;s k Cri.Appeal No.684/2018 withconnected appeals:: 91 ::ogk ‘ksjk vkSj tqcsj vk,s k vanktk ,d ls lOok cts ds oDr ‘kks,cdk bezku esganh dks Qksu vk;k Ålus crk;k lyhe fudyk k bezkuus crk;k lyhe vk jgk gS r;kj jgks k rc ‘ksjk xkMhds Mªk;OgjlhVij CkSBk k Ålds cktw ds lhVij tqcSj cSBk k bezku esganh usuqeku dks eksVkj lk;dy nh k vkSj mls FkksMk vkxs tkdj [kMs jgusds fy, dgk bl fy, og FkksMk vkxs tkdj [kMk jgk k ‘kks,c dksfQj Qksu vk;k dh] lyhe VkÅu gkWy ij #dk gS k vkSj fQj Qksuvk;k dh og vk jgk gS k lyhe dqjS’kh dh xkMh gekjh xkMh dsrjQ vkrs gqbZ fn[kkbZ nh k rqjar gh ‘ksjk us vkseuh lyhe ds xkMh dslkeus yxkbZ k rc lyhe dqjS’khus xkMh #dkbZ k rc tqcSj xkMh dsfups mrjdj cksyk ßeknjpksn ,Sls dSlh xkMh pyk jgk gS kÞ ,slhxkyh nsus ds otg ls lyhe dqjS’kh xkMh ds uhps mrjk vkSj gekjhxkMh ds rjQ vkrs oDr tqcsj ds rjQ ns[kdj xkyh;k ns jgk Fkk krc eS] bezku esganh] lqyrku] Qjhn ,Sls xkMhes ls mrjs k rqjar bezkuesganhus lyhe dqjs’kh dk xyk gkr ls nck dj idMk k vkSj lqyrkuus Ålds iSj idMdj Åls mldh gh dkj es Mkyk k eS lyhe dqjS’khdh xkMh pykus cSBk k ihNs bezku esganh] lqyrku] uqeku] QjhncSBdj fudys k ekjksrh vkseuh es ‘ksjk] [kkysn] tqcsj ;g gekjs ihNsFks k ge Nko.kh bnxkg ds jkLrs ls Hkkoflaxiqjk ckn es feVfeVk f’kokjes ysdj x;s k jkLrs ls ihNs cSBs yksxks us lyhe dqjS’kh dks iDdkidMdj j[kk Fkk k xkMh eSus dkalcjh uxj ds cktqds [kssr es #dkusds ckn lyhe dqjS’kh dks uhps mrkj fy;k k Ålds ckn bezku esganhus eq>s vkSj ‘ksjk dks lyhe dqjS’kh dhoWxuvkj dkj tYnh tkdj jkWDlh ds ikl NksMdj vkus dks dgk kblfy, eS vkSj ‘ksjk oWxuvkj dkj ysdj x, k rc ‘ksjkus xkMhpykbZ kge jkLrs ls vkrs oDr ‘ksjkus ‘ks,c dks Qku fd;k vkSj ckck isVªksyiai ds ikl cqyk;k k gedks og ckck isVªksy iai ds ikl eksVkjlk;dyij feyk k jkWDlh VkWdht ds ikl tkus ds ckn dksbZ vius dksigpkusxk bl fy, geus xkMh jkWDlh ds ikl [kMs u djrs gq,ixkjh;k ds ikl xkMh yxkbZ k vkSj xkMh dh pkch ‘ksjkus Ålds iklj[kh k Ål oDr jkr ds <kbZ ct jgs Fks k eS vkSj ‘ksjk nksUgks ‘kkss,cds xkMhij csBs k ge rhuks us ck;thiqjk es tkdj pkj flxjsV fy;s kmlds ckn eS vkSj ‘ksjk eksVkj lk;dyij iMsxko ds rjQ x;s vkSj‘kks,sc ?kj pyk x;k k ge ogk x, rc eSus ns[kk dh lyhe dqjS’khds nksuks gkr cka/ks gq, Fks k vkSj bezku esganh Ålls ckr dj jgk Fkk k Ålds ckn eq>s vkSj Qjhn dks bezku esganh us fVkdl vkSj QkoMkykus ds fy, Hkstk k ge og ysdj vk, k Ålds ckn eS] tqcsj] Cri.Appeal No.684/2018 withconnected appeals:: 92 ::uqeku] lqyrku] [kkysn] ‘ksjk lcus feydj bezku esganh ds dgus ijxMMk [kksnk k vanktk ikp QqV yack vkSj pkj QqV uhps xMMk r;kjfd;k k Ål oDr lksMs pkj ct jgs Fks k Ålds ckn bezku esganhuslyhe dqjS’kh ds vkaxij ds iqjs diMs pkdw ls QkM Mkys k vkSjÅlds vkaxij ,d Hkh diMk ugh j[kk k Åldks iqjk uaxk fd;k vkSjÅldks xMMs ds ikl yk, k Ål oDr es djhc Fkk k bezku esganhvkSj lqyrku us lyhe dqjS’kh dks mBkdj xMMs esa Mkyk k ysdhu ogrqjar mB dj [kMs gqvk k rc bezku us lyhe dqjS’kh ds ljds ckyidMdj Ålds xys ij pkdw ls okj fd;k vkSj Åldk xyk dkVnkyk k vkSj rqjar pkdw lqyrku ds ikl fn;k k lqyrku us Hkh pkdqls lyhe dqjS’kh dks ekjk k og xMMs es rMQM dj jgk Fkk rc bezkuesganh ds dgus ij ge lc us feydj Ålij feVVh Mkyh k vkSj ÅlsxkM fn;k k Åls xkMus ds ckn iqjk lkeku ysdj ge lc xkMh escSBs k eSus ekjksrh OgWu pykbZ k Ål oDr OgWu es eS] tqcSj] [kkysn]lqyrku] Qjhn] ‘ksjk ,sls cSBs k uqeku vkSj bezku esganh ;s nksuks eksVjlk;dyij cSBs k Ål oDr lyhe dqjS’kh ds diMs] dej dk csYV]tqrk bezku esganh ds ikl Fkk k ge feVfeVk ds rjQ ls ckck isVªksyiai ij vk,s- eSus ckck isVªksy iai ds ikl ,d xYyh es ekjksrhvkseuh OgWu [kMh djds ge lc uhps mrjs vkSj ?kj dks pys x;s keSus xkMh dh pkch bezku esganh dks nh Fkh k eSus tgk xkMh yxkbZ Fkhog txk eq>s irk gS k og eSus crk;k gS bl rjg lyhe dqjS’kh dk[kwu fd;k gS k;g bdckyh;k tckc vkt rkjh[k 12@05@2012 lqcg 17-00cts ‘kq# djds 20-00 cts iqjk fd;k k 89.We have perused the same. P.W.49 has appendedhis certificate below the confessional statement about hissatisfaction that Najer Ali made confessional statementvoluntarily. Then he gave Najer Ali to the custody of Katke alongwith a confessional statement in a closed/ sealed cover with adirection to produce him before the learned Chief JudicialMagistrate. The record indicates that, Najer Ali was producedbefore the learned Chief Judicial Magistrate on 14/5/2012. The Cri.Appeal No.684/2018 withconnected appeals:: 93 ::record indicates that, on 13/5/2012 it was a holiday and,therefore, Najer Ali was not produced before the learned ChiefJudicial Magistrate forthwith. The word ‘forthwith’ has beeninterpreted to mean, without unreasonable delay. Since13/5/2012 was a holiday. Mr. Katke was justified in producingNajer Ali before the Chief Judicial Magistrate on 14/5/2012. Mr.Katke has also placed on record station diary and lock-up entryand other communication vide Exhs.356 to 376 to indicate tohave scrupulously followed all the directions given by P.W.49.Page 89 in the Paper Book is a letter given by learned ChiefJudicial Magistrate to the Special Court (Trial Court), forwardingthe confessional statement to the said Court. Part II of theconfessional statement of Najer Ali is at Exh.392. Najer Ali wasproduced before the learned Chief Judicial Magistrate on14/5/2012. On his production, the learned Chief JudicialMagistrate made following observations : “Accused produced. No complaint. He stated thatunder pressure, his statement is recorded. Forwarded toSpl. Court.”90.Then comes confessional statement of Syed Jahir @Shera Syed Baqar Qureshi. P.W.49 got him produced beforehim on 13/5/2012. Cri.Appeal No.684/2018 withconnected appeals:: 94 ::P.W.52 Keru Khod produced Syed Jahir @ Sherabefore P.W.49 Somnath Gharge on 13/5/2012. Evidence ofP.W.52 Keru Khod indicates to have scrupulously complied withall the directions of P.W.49 and he placed on record the lock-upand station diary entries vide Exhs.430 to 436.91.Again following the similar procedure and mandate ofSection 18 and Rule 3, P.W.49 Somnath recorded confessionalstatement of appellant Syed Jahir @ Shera. It is in his evidencethat he asked P.W.52 Keru Khod to produce Syed Jahir beforehim on 12/5/2012. Syed Jahir was accordingly produced beforehim. The investigating officer was asked to leave. Then P.W.49interacted with Syed Jahir, put him certain questions and fromreplies thereto, was satisfied that Syed Jahir wanted to make aconfessional statement, voluntarily. Part I of confessionalstatement of Syed Jahir is at Exh.395. We have perused thesame to find it to be in compliance with Section 18 and Rule 3 ofthe MCOCA. Syed Jahir was given to the custody of P.W.52Khod with a specific direction to keep Syed Jahir in a lock-up ofCidco Police Station and ensure that no officer connected withthe investigation shall have an occasion to contact him duringsuch custody and then produce him before P.W.49 on 13/5/2012.Accordingly, P.W.52 Khod produced Syed Jahir before P.W.49 on Cri.Appeal No.684/2018 withconnected appeals:: 95 ::13/5/2012. P.W.49 again interacted with Syed Jahir and from thereplies thereto, was satisfied that he (Syed Jahir) wanted tomake a confessional statement, voluntarily. Part II of confessional statement of Syed Jahir is atExh.397. We have perused it. He was again produced beforeP.W.49 Gharge on 13/5/2017. It reads : eS l¸;n tghj mQZ ‘ksjk firk ck[kj dqjs’kh] mez 26 lky]/kank&O;kikj] iRrk & psyhiwjk] rksVh dh eLthn ds cktw ?kj uacj1&1810] vkSjaxkckn-eS mij fn,s gq,s irs ij esjk HkkbZ tehj ck[kj dqjs’kh]HkkHkh ;kLehu] iRuh lyk vkSj yMdh [krhtk mQZ cyk 25 lkyls jgrs gS k esjh i<kbZ nloh rd gqbZ gS k dVdV xsV ij bezkuesganh dk lOghZlhax lsaVj vkSj dqRrksa dk ikyuk ?kj gS k eq>s dqRrksdk ‘kkSd gksus dh otg ls eS bezku esganh ds ikys gq, dqRrs ns[kusfiNys lkyHkj ls tkrk Fkk k mldh otg ls esjh vkSj mudhnksLrh gks x;h k bezku esganh ds lOghZl lsaVj ij esjs nksLr ‘kks,c][kkysn] tqcsj cSBk djrs Fks k vanktu rhu eghus igys bezku esganhds lOghZflax lsaVj ij eS] tqcsj] [kkysn] Qjhn] uqeku] uktsj vyhcSBs gq, Fks k bezku esganh us dgk dh vklsfQ;k dkWyuh ds lyhedqjs’kh dks mBkuk gS k mldks mBkusss ds ckn og vius dks ipklyk[k #i;s nsxk k fQj vkiqu lc yksx iSlk ckV ysaxs k rkjh[k 02@03@2012 dks eqacbZ ls lqyrku uke dk yMdkvk;k k rc bezku us dgk dh vkt lyhe dqjs‘kh dks mBkuk gSvkSj eksVkj lk;dy ij lc vklsfQ;k efLtn ds ikl vk;s vkSjogk Bgjk;k dh lyhe dqjs’kh dh dkj vkus ds ckn mldks eksVkjlk;dy ls /kMd nsdj mlds ckn mldks mldh xkMh es ysdjtkus dk ysfdu ml fnu vktw cktw yksx gksus ds otg ls gedksmls mBkuk ugh vk;k k blfy, ge okil vk;s k rkjh[k 03@03@2012 dks jkr es ‘kks,c dks eksVkj lk;dy ijjkWDlh VkWdht ds ikl Hkstk vkSj lyhe dqjs‘kh fudyus ds ckn Cri.Appeal No.684/2018 withconnected appeals:: 96 ::crkus dks dgk fQj ge lc pksjh dh ekjksrh OgWu es vklsfQ;kdkWyuh efLtn ds ikl vkdj [kMs gq, mlh fnu lyhe dqjs’khckjk cts ds le; dkj es vk;s k ysfdu ml fnu lcus dgk dhckn es mBk,axs k rkjh[k 04-03-2012 dks eS] bezku esganh] ‘kks,c] tqcsj] lqyrku]uqeku] uktsj vyh lc feydj vklsfQ;k dkWyuh ls lyhe dqjs‘khdks mBkus ds fy, vk;s k eq>s bezku esganh us ek#rh vkseuh pykusdks dgdj lyhe dqjs’kh dh xkMh vkus ds ckn mlds xkMh dslkeus vkseuh yxkus dks dgk k lyhe dqjs’kh jkWDlh VkWdht lsfudyus ds ckn ‘kks,c] bezku esganh dks ekywekr nsusokyk Fkk kxkMh lyhe dqjs’kh ds xkMh ds lkeus yxkus ds ckn tqcsj] lyhedqjs’kh dks xkyh nsusokyk Fkk k mlh otg ls lyhe dqjs’kh xkMh dsfups mrjrs gh mldks mBkus dk dke bezku esganh vkSj lqyrkudjusokys Fks k ml rjg bezku esganh us ge lcdks dke ckVdj fn,Fks k vankts jkr dks ikous ,d cts ds oDr ‘kks,c dk Qksu vkus dsckn bezku us gedks cr;k dh oks vk jgk gS rqjar eS xkMh esMªk;Ogj ds lhVij cSBk k esjs cktw es tqcsj cSBk vkSj uqeku ds iklbezku esganh us eksVkjlk;dy nh vkSj mldks jksMij FkksMk vkxstkdj [kMk jgus dks dgk k blfy, og FkksMk nwj jksMij tkdj[kMk gks xk;k k mlds ckn ‘kks,c dk fQjls Qksu vk;k k lyhedqjs’kh Vkmu gkWy ds ikl #dk gS k mlds ckn fQj Qksu vk;k dhog vk jgk gS k lyhe dqjs’kh dh xkMh gekjh rjQ vkrh gqbZfn[kkbZ nh rqjar eSaus vkseuh mlds xkMh ds lkeus yxkbZ rc lyhedqjs’kh us mldh xkMh #dkbZ k rc tqcsj uhps mrjdj cksykßeknjpksn ,Sls dSlh xkMh pyk jgk gSÞ ,slh xkyh nsus ds cknlyhe dqjs’kh uhps mrjdj gekjh rjQ vk jgk Fkk ,l oDr ogtqcsj dh rjQ ns[kdj xkyh ns jgk Fkk k ml oDr bezku] uktsjvyh] lqyrku vkSj Qjhn mrjs k rqjar bezku us lyhe dqjs’kh dksnck;k vkSj lqyrku us ,lds iSj idMdj mls xkMh es Mkyk kuktsj vyh lyhe dqjs’kh dh xkMh pykus dks cSBk k xkMh es fiNsbezku esganh] lqyrku] uqeku] Qjhn cSBdj fudys vkSj vkseuh eseS] [kkysn] tqcsj muds ihNs fudys k ge Nko.kh] bnxkg]Hkkoflaxiqjk ls gksrs gq, mls feVfeVk f’kokj ysdj x, k iMsxkaodklecjhuxj ds cktw es [ksr es #d us ds ckn lyhe dqjs’kh dksuhps mrkj fy;k k rc eSus vkseuh ds ykbZV pkyw j[ks Fks k rcuktsj vyh xkMh [kMh djds xkMh ds uhps mrjk vkSj mlus lyhedqjs’kh ds xys es dh pSu] gkFk dh vaxwBh vkSj mlds iWaaV ds ihNsds tsc es ls ikWdsV fudkyk ;g eSus ns[kk Fkk k Cri.Appeal No.684/2018 withconnected appeals:: 97 ::ge jLrs ls vkrs oDr uktsj vyh us ‘kks,c dks Qksu fd;k vkSjckck isVªksyiai ds ikl cqyk;k k ge dks og ckck isVªksyiai dsikl eksVkjlk;dy ij feyk k gedks jkWDlh VkWdht ds ikl xkMhysdj tkus dh ugh k blfy, ixkjh;k ds ikl xkMh yxk nh vkSjxkMh dh pkch eSaus jksMij Qasd nh k eS uktsj vyh] ‘kks,c dseksVkjlk;dy ij ge rhuksa cSBdj vklsfQ;k dkWyuh es x;s kogk ls bezku esganh dh eksVkjlk;dy yh ge rhuksa eksVkjlk;dyij cSBdj iMsxkao ds rjQ x;s vkSj ‘kks,c ?kj pyk x;k k geogk x;s rc eSaus ns[kk lyhe dqjs’kh ds nksus gkFk cka/ks gq, Fks vkSjbezku esganh mlds lkFk ckr dj jgk Fkk k mlds ckn uktsj vyh vkSj Qjhn dks bezku esganh us fVdkl vkSjQkoMk ykus ds fy;s Hkstk mUgksaus oks yk;k mlds ckn ge lcdksbezku us xMMk [kksnus dks dgk k ge lcus xMMk [kksnk rclkMspkj cts Fks k mlds ckn bezku esganh us lyhe dqjs’kh ds diMspkdw ls QkMs k mlds ‘kjhjij ,d Hkh diMk ugh j[kk k mls iqjkuaxk djdsa xMMs ds ikl yk;k k bezku esganh vkSj lqyrku uslyhe dqjs’kh dks mBkdj xMMs es Mkyk k eq>s og gjdr ns[kusdks eu ugh fd;k blfy, eS ogk ls FkksMk nwj pyk x;k k rcbezku esganh vkSj lqyrku us lyhe dqjs’kh dks pkdq ls ekjk k ogxMMs es rMQ jgk Fkk k rc bezku esganh us ge lcdks utnhdcqyk;k vkSj mlij feVVh Mkyus dks cksyk blfy, geus mls feVVhMkydj xkM fn;k k mlds ckn ge lc lkeku ysdj xkMh es cSBs k rc uktsj vyh usekjksrh OgWu pyk;h k ml oDr OgWu es eS] tqcsj] [kkysn] lqyrku]Qjhn cSBs Fks k uqeku vkSj bezku esganh nksuksa eksVkjlk;dy ij cSBsk ml oDr lyhe dqjs’kh ds diMs] tqrs] dej dk csYV bezkuesganh ds ikl Fkk k ge feVfeVk dh rjQ ls ckck isVªksyiai ijvk;s vkSj uktsj vyh us ckck isVªksyiai ds ikl ,d xyh esekjksrh vkseuh OgWu [kMh dh vkSj ge lc mrj ds ?kj pys x;s kbl rjg geus lyhe dqjs’kh dk [kwu fd;k k ;g bdckyh;k tckc vkt rkjh[k 13-05-2012 dks 17-00 cts‘kq# djds 20-00 cts iqjk fd;k k 92.The certificate as is required under Section 18(3) ofMCOCA is on separate page, at page 391. We found some Cri.Appeal No.684/2018 withconnected appeals:: 98 ::space on Page 930 i.e. below the confessional statement ofJahir, whereon P.W.49 could have given his certificate. It is,however, not a case of non-compliance of Section 18(1) of theMCOCA. The reliance placed on the judgment in case of Mohd.Iqbal Farook Shaikh, relied on by learned Advocate Mr. Jaiswalwould, therefore, be of little consequence as it was a case ofnon-compliance of Section 18(3) at all. The certificate bearssignature of the appellant Jahir. There is also certificate given bythe Stenographer of P.W.49. It is at Exh.482 in the followingwords :izek.ki=eh] th-Mh- dne] y?kqys[kd] iksyhl mi vk;qDr ¼eq[;ky;½;kaps dk;kZy;] vkSjaxkckn ‘kgj vls izek.khr djrks dh] oj ueqnVadys[ku eh Lor% iksyhl mi vk;qDr] eq[;ky;] vkSjaxkckn ;kauhvkjksih l¸;n tghj mQZZ ‘ksjk firk ck[kj dqjs’kh ;kyk fopkjysysiz’u o R;kauh lkafxrysyh mRrjs lax.kdkoj iksyhl mi vk;qDreq[;ky; ;kaps dk;kZy;] vkSjaxkckn ;sFks Vadfy[khr dsysyh vkgsr- सहह¼th-Mh- dne½ y?kqys[kd iksyhl mi vk;qDr ¼eq[;ky;½ ;kaps dk;kZy;] vkSjaxkckn93.Evidence of P.W.52 Keru Khod indicates that, hecomplied with all the directions given by P.W.49. He placed onrecord communication between both of them and the stationdiary and lock-up register entries vide Exhs.430 to 434. Cri.Appeal No.684/2018 withconnected appeals:: 99 ::94.Appellant Syed Jahir was produced before thelearned Chief Judicial Magistrate on 14/5/2012. The learnedChief Judicial Magistrate passed the following remarks :-“Closed envelope opened and ascertained withaccused. Whatever he had stated is mentioned belowhis statement. It be forwarded to Special Court(MCOCA).”Sd/- 14/5/201295.The prosecution has also examined P.W.51Gangadhar, a Stenographer of P.W.49. His evidence indicatesthat, all the confessional statements of 3 appellants were typedby him as narrated by the respective appellants. The evidenceof the Stenographer reinforces the prosecution evidence asregards recording of confessional statements.96.During cross-examination of P.W.49 SomnathGharge, it has been brought on record that, his office was notequipped with electronic record facility to record the confessionalstatement. The confessional statements were, therefore,typewritten. It has been brought on record that, his office wasadjacent to the Chamber of Commissioner of Police. It has alsobeen brought on record that, all the officers who were involved in Cri.Appeal No.684/2018 withconnected appeals:: 100 ::the investigation of the present crime were his subordinateofficers. It is also on record that, he was Deputy Commissionerof Police, Headquarters, the Police Station, Begumpura did notfall within his jurisdiction. There is nothing to indicate P.W.49Somnath Gharge to have played any role in the investigation ofthe crime before he recorded the confessional statements of theaforesaid three appellants. It has been brought on record duringcross-examination of P.W.49 Gharge that, appellant Numan wasproduced before him on 13/5/2012 at 8.30 a.m. Since Numanrefused to make a confessional statement, he (P.W.49) did notrecord his statement. The same suggests that, those whovolunteered to make confessional statements, their statementshave been recorded. 97.A communication was placed on record to indicatethat P.W.49 made a request to Cellular Companies for providingCDRs of certain phone numbers connected with the presentcrime. It is a matter of common knowledge that, investigatingofficer or concerned Police Station Incharge is not permitted todirectly make communication with the Nodal Officers of theCellular Companies. It is only through Superintendent of Policeor concerned officer authorized by Commissioner of Police, whomakes such communications. Furthermore, the said Cri.Appeal No.684/2018 withconnected appeals:: 101 ::communication was not confronted to P.W.49 in his cross-examination. After going through the entire evidence on record,we find him to have not played any role in the investigation. 98.Section 15 of the TADA reads thus : “15.Certain confessions made to police officers tobe taken into consideration : -(1)Notwithstanding anything contained in theCode or in the Indian Evidence Act, 1872 (1 of1872), but subject to the provisions of this Section, aconfession made by a person before a police officernot lower in rank than a Superintendent of Policeand recorded by such police officer either in writingor on any mechanical device like cassettes, tapes orsoundtracks from out of which sounds or images canbe reproduced, shall be admissible in the trial ofsuch person or co-accused, abettor or conspirator foran offence under this Act or rules made thereunder:Provided that co-accused, abettor or conspirator ischarged and tried in the same case together with theaccused.” 99.Section 18 of the MCOCA is para materia withSection 15 of the TADA. In case of Nalini & ors. (1999) 5 SCC253, it has been held :-“B.Terrorist and Disruptive Activities (Prevention)Act, 1987 – Ss. 15 & 21 – Evidentiary value ofconfession recorded by Police Officer under S.15 Cri.Appeal No.684/2018 withconnected appeals:: 102 ::against its maker and against a co-accused, abettor orconspirator – Effect of non obstante clause inS.15(1)– S. 30 of Evidence Act whether excludedthereby – Effect of addition of words “or co-accused,abettor or conspirator” in sub-section (1) of S.15 anddeletion of cls. (c) and (d) of S.21 by Amending Act43 of 1993 – Words ‘substantive evidence’ – Meaningof – Words “shall presume” in S.21(1) – Connotationof – Held, (per majority, Thomas, J. contra)confession of an accused is admissible as asubstantive evidence against himself as well asagainst a co-accused, abettor or conspirator – But as amatter of prudence Court should require somecorroboration of confession when used against a co-accused– Decision in Kalpnath Rai v. State overruled– Words and phrases – Evidence Act, 1872, S.30 –Confession under S.15 TADA Act.” In paragraph No.81 of the judgment in case of Nalini(supra), it has been observed:-“81.Section 15 of TADA enables the confessionalstatement of an accused made to a police officerspecified therein to become admissible “in the trial ofsuch a person”. It means, if there was a trial of anyoffence under TADA together with any other offenceunder any other law, the admissibility of theconfessional statement would continue to hold goodeven if the accused is acquitted under TADAoffences.”100.Moreover, in case of Mohd. Farooq, (2010) 14 SCC641, it has been held :-“C.Maharashtra Control of Organised Crime Act, Cri.Appeal No.684/2018 withconnected appeals:: 103 ::1999 (30 of 1999) – Ss. 18 & 29 and R.3(6), MCOCRules, 1999 – Confession of co-accused – Convictionof A-1 on basis of confession of A-5 and A-6 –Permissibility – Held, confessional statement of co-accused can form basis of conviction under MCOCA–Maharashtra Control of Organised Crime Rules,1999– R. 3(6) – Criminal Trial – Confession –Confession under special statutes.D. Maharashtra Control of Organised Crime Act,1999 (30 of 1999) – Ss. 18 & 29 and R.3(6), MCOCRules, 1999 – Confession of accused and co-accused-Conviction on sole basis of – Sustainability – Held,Conviction can be based solely on basis ofconfessional statement of accused and also the co-accused – Further held, evidence of co-accused isadmissible as a piece of substantive evidence and inview of non obstante clause in S. 18 of MCOCA,Cr.P.C. would not apply – Maharashtra Control ofOrganised Crime Rules, 1999 – R. 3(6).” 101.Two of the three appellants who made confessionalstatements have retracted therefrom. One did not. The evidenceof P.W.49 Somnath Gharge and the concerned police officers, inwhose custody they were kept during the period of reflection andthen until their production again before P.W.49 and thereaftertheir production before the learned Chief Judicial Magistrateinspires confidence that the confessional statements of thosehave been recorded strictly in compliance with Section 18 of theMCOCA and Rule 3 of the MCOC Rules. As has been observedin case of Nalini (supra), confessional statement is a substantive Cri.Appeal No.684/2018 withconnected appeals:: 104 ::piece of evidence. We have perused all the three confessionalstatements. They are consistent with each other. Only adistinction was sought to be made out between two confessionalstatements namely Juber and Najer Ali, wherein it has beenmentioned that, demand of Rs.50 Lakhs was made to deceasedSalim Qureshi. A statement relating to this demand was madeby Imran Mehandi to him about two and half months before theincident. While in the confession of another one (Juber Khan),the reason for abduction was stated to be to teach a lesson toSalim Qureshi. (Page 879 and Page 907 of Paper Book wereadverted to in this regard). 102.It is reiterated that, the confessional statementrecorded by competent officer under the Special Statute is heldto be a substantive piece of evidence against the maker thereofand even a co-accused charged and tried along with the maker.Confessional statement can be acted upon if it is found to bemade voluntarily and is true. In case of Bharat Vs. State of U.P.(1971) 3 SCC 950, it has been observed : “7.. . . Confessions can be acted upon if the courtis satisfied that they are voluntary and that they aretrue. The voluntary nature of the confession dependsupon whether there was any threat, inducement orpromise and its truth is judged in the context of theentire prosecution case. The confession must fit into Cri.Appeal No.684/2018 withconnected appeals:: 105 ::the proved facts and not run counter to them. Whenthe voluntary character of the confession and itstruth are accepted it is safe to rely on it. Indeed aconfession, if it is voluntary and true and not madeunder any inducement or threat or promise, is themost patent piece of evidence against the maker.Retracted confession, however, stands on a slightlydifferent footing. As the Privy Council once stated,in India it is the rule to find a confession and to findit retracted later. A court may take into account theretracted confession, but it must look for the reasonsfor the making of the confession as well as for itsretraction, and must weigh the two to determinewhether the retraction affects the voluntary nature ofthe confession or not. If the court is satisfied that itwas retracted because of an afterthought or advice,the retraction may not weigh with the court if thegeneral facts proved in the case and the tenor of theconfession as made and the circumstances of itsmaking and withdrawal warrant its user. All thesame, the courts do not act upon the retractedconfession without finding assurance from someother sources as to the guilt of the accused.Therefore, it can be stated that a true confessionmade voluntarily may be acted upon with slightevidence to corroborate it, but a retracted confessionrequires the general assurance that the retraction wasan afterthought and that the earlier statement wastrue.”103.P.W.49 Somnath recorded the confessionalstatements of all the three appellants after giving them 24 hours’time of reflection. His interaction with all the three indicates thatthey made their confessional statements voluntarily. All the threeconfessional statements have been appended with the certificate Cri.Appeal No.684/2018 withconnected appeals:: 106 ::required under Section 18(3) of the MCOCA. These are theconfessions recorded under Special Statute and not underSection 164 of the Cr.P.C. Reliance on the judgment in case of(Sarwan Singh Rattan Singh Vs. State of Punjab (AIR 1957SC 637)) would, therefore, be of little relevance in the facts andcircumstances of the present case.104.In case of State of T.N. Vs. Kutty Alias Laxmi @Narsimhan (supra), it has been observed :-“13.It is not the law that once a confession isretracted the Court should presume that theconfession is tainted. As a matter of practicalknowledge, we can say that a non-retractedconfession is a rarity in criminal cases. To retractfrom a confession is the right of the confessor and allthe accused against whom confessions were producedby the prosecution have invariably adopted that right.It would be injudicious to jettison a judicialconfession on the mere premise that its maker hasretracted from it. The Court has a duty to evaluate theevidence concerning the confession by looking at allaspects. The twin test of a confession is to ascertainwhether it was voluntary and true. Once those testsare found to be positive the next endeavor is to seewhether there is any other reason which stands in theway of acting on it. Even for that, retraction of theconfession is not a ground to throw the confessionoverboard.”105.All the three confessional statements are consistent Cri.Appeal No.684/2018 withconnected appeals:: 107 ::with each other. It is true that, one confessional statementcannot corroborate the another one. It is reiterated that, theseconfessional statements have been recorded under SpecialStatute and not under Section 164 of the Cr.P.C. A Wagon-Rthat was owned and regularly used by deceased Salim wasseized on 6 March under the panchanama (Exh.120). Adhesivetapes were seized from the said car. The car was soiled fromoutside. Soil particles were obtained under panchanama(Exh.120). On exhumation of the dead body of the deceased,his hands and legs were found to have been tied with adhesivetapes. Those tapes were seized. Sample of soil from the placewhereat the deceased was buried, were obtained. All thesearticles were sent to the office of the Chemical Analyst foranalysis. The C.A. report (Exh.554) indicate that the adhesivetapes seized from the car and found on the dead body of SalimQureshi, soil samples seized from the pit wherein the dead bodyof Salim Qureshi was buried and soil particles found on theWagon-R car tallied among themselves in respect of physioChemical characteristics and hue. The confessional statements are, therefore, actedupon against the three confessors themselves. They are alsorelied upon as against the co-appellants as piece of substantive Cri.Appeal No.684/2018 withconnected appeals:: 108 ::evidence. 106.However, as observed above, the MCOCA waswrongly invoked. The appellants, therefore, deserve to beacquitted of the offences under MCOCA, they were convicted for.107.The appeals, therefore, partly succeed. Hence theorder :-O R D E R(i)The Criminal Appeals are partly allowed.(ii)The order dated 27/8/2018, passed by learned SpecialJudge (MCOC), Aurangabad in Special Case No.17/2012(MCOC), convicting and sentencing the appellants herein for theoffences punishable under Sections 3(1)(ii), 3(2), 3(4) of theMaharashtra Control of Organised Crime Act, 1999 is hereby setaside. The appellants are acquitted thereof. Fine amount onthose counts, if paid, be refunded to them.(iii)The order dated 27/8/2018, passed by learned SpecialJudge (MCOC), Aurangabad in Special Case No.17/2012(MCOC) convicting and sentencing the appellants herein for the Cri.Appeal No.684/2018 withconnected appeals:: 109 ::offence punishable under Section 302 read with Section 34 ofthe Indian Penal Code is maintained.(iv)The order dated 27/8/2018, passed by learned SpecialJudge (MCOC), Aurangabad in Special Case No.17/2012(MCOC) convicting the appellants herein for the offencepunishable under Section 364 read with Section 34 of the IndianPenal Code is maintained. However, the sentence is reduced torigorous imprisonment for seven (7) years and to pay fine ofRs.1000/- (Rupees one thousand) each, in default to sufferrigorous imprisonment for one year.(v)The order dated 27/8/2018, passed by learned SpecialJudge (MCOC), Aurangabad in Special Case No.17/2012(MCOC) convicting and sentencing the appellants herein for theoffence punishable under Section 201 read with Section 34 ofthe Indian Penal Code is maintained. (vi)All the substantive sentences to run concurrently.(vii)Clause 13 of the impugned order to stand unaltered.(viii)The appellants are entitled for set-off as provided underSection 428 of the Code of Criminal Procedure for the period Cri.Appeal No.684/2018 withconnected appeals:: 110 ::already undergone by them in jail.(ix)Fees of learned Advocate Mr. Chaitanya C. Deshpande,who was appointed to represent the appellant in Criminal AppealNo.588/2023, is quantified at Rs.10,000/- (Rupees TenThousand).(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Cri.Appeal No.684/2018 withconnected appeals:: 12 ::of Sillekhana, Aurangabad. The said matter was settled bydeceased Salim at his office. Moreover, Salim had accompaniedBismilla and Fahim (P.W.22) while leaving his office on the fatefulnight. In short, Halim (informant) had suspected Salim tohave been abducted by someone of the aforesaid suspectsnamed in the F.I.R.7.Based on the F.I.R. (Exh.292), a crime vide C.R.No.19/2012 was registered at Begumpura Police Station,Aurangabad for the offence punishable under Section 363 r/w 34of the Indian Penal Code. Shri S.D. Shaikh (P.W.57), PoliceInspector was initially entrusted with the investigation of thecrime. During the investigation, the Wagon-R car of thedeceased Salim came to be seized on 6/3/2012 from the place atTapadia Ground. While the Wagon-R car of the deceased wasseized, it was found to have been soiled from outside. Soilparticles on the car were seized. The car was searched.Adhesive tapes were seized from the car. The Crime Branchofficials were also making investigation on the directions of theCommissioner of Police. It appears that, on 10 March, the CrimeBranch officials arrested appellant Imran Mehandi (original Cri.Appeal No.684/2018 withconnected appeals:: 13 ::accused No.1) and some other suspects. They were immediatelyhanded over to the custody of Shri S.D. Shaikh (investigatingofficer). He arrested appellants Imran Mehandi, Najer Ali,Faridkhan and Numan Khan and other accused namely ShaikhImran @ Sultan s/o Shaikh Saifoddin and Mohammad Shoeb. 8.On the morning of 11/3/2012, appellant ImranMehandi expressed his desire to make a disclosure statement.P.W.57 Shri S.D. Shaikh, therefore, secured presence of twopanchas. A Videographer (P.W.33 Ramdas) too was summoned.Appellant Imran Mehandi informed to have had abducted Salimfrom Town Hall in his own (Salim’s) car. He (Imran Mehandi)accompanied by his associates (appellants herein and others) atthat time. They took him to an isolated place at Padegaon –Mitmita area. Imran Mehandi assaulted Salim with knife. Hisassociates dug a pit. Salim was buried therein after havingmade further assaults on him with knife. The disclosurestatement made by Imran Mehandi was recorded in thepresence of two panchas. A video recording thereof was alsomade. Shri S.D. Shaikh (P.W.57) had secured presence ofMedical Officer Dr. Kailas (P.W.36) and Naib Tahsildar-cum-Executive Magistrate- Gangadhar (P.W.29). They arrived. Theappellant Imran Mehandi led all of them to an open field at Cri.Appeal No.684/2018 withconnected appeals:: 14 ::Padegaon area and pointed out the place whereat Salim wasburied. From the place pointed out by appellant Imran Mehandi,a dead body of Salim was exhumed. It was in highly de-composed condition. On the spot, inquest panchanama(Exh.123) and post mortem examination (Exh.303) wereconducted. It was found that, hands and legs of the deceasedwere tied with adhesive tapes. A soil and those tapes weretaken charge of under panchanamas. Halim (informant) identifiedthe dead body to be that of Salim. Thereafter Sections 302 and201 of the Indian Penal Code came to be invoked.9.Thereafter the investigation was assigned to P.I. ShriTelure (P.W.60). During further interrogation of appellant ImranMehandi, involvement of his some other associates wassurfaced. They were arrested one after the other. The appellantImran Mehandi again made a disclosure statement, pursuant towhich a knife used in commission of the crime was recoveredfrom a Nallah. It was seized under the panchanama (Exh.171 &172). He made further disclosure statement (Exh.163) to haveburnt the clothes of deceased Salim along with his belt andshoes at a particular place. He then led the police and panchasto the place wherefrom a strip of shoes, ash of clothes and halfburnt belt came to be seized. Cri.Appeal No.684/2018 withconnected appeals:: 15 :: Moreover, the appellant Imran Mehandi did not likethe deceased to have indulged in money lending. According tohim, it was against the Islamic tenets. During the Municipalelections, wherein the second wife of the deceased wascontesting from Asefiya Colony, hoardings were put up with aview to appeal the voters to not vote the one who indulged inmoney lending. Such appeal was said to have been made byappellant Imran Mehandi. During further investigation it wasrevealed that, appellant Imran Mehandi had criminal history.Number of crimes were registered against him and hisassociates. A proposal (Exh.527) was, therefore, put up forinvoking provisions of the MCOCA. During investigation it wasrevealed that the crime was committed over supremacy inAsefiya Colony. One of the motives behind commission of thecrime was to get Rs.50 Lakhs from the deceased. As such, itwas found that it was an organised crime committed by anorganised crime syndicate headed by appellant Imran Mehandi,and some of them assisted the organised crime syndicate incommission of the organised crime. The Commissioner of Policesanctioned the proposal (Exh.527). The investigation, therefore,came to be assigned to Shri Bahure (P.W.61), an officer in therank of Dy. Superintendent of Police/ Assistant Commissioner of Cri.Appeal No.684/2018 withconnected appeals:: 16 ::Police. Even before invoking MCOCA, residential houses ofsome of the appellants including the appellant Imran Mehandiand his work place as well were searched. Instruments like Tikav (pick axe), Spade etc. used indigging up a pit for burial of Salim were seized. All the seizedarticles were sent to CFSL for analysis and report. During investigation, Call Data Records (CDRs) ofcertain cell phone numbers were obtained from CellularCompanies like Airtel, Reliance etc. During further investigation,appellants Najer Ali, Syed Jahir and Juber Khan expressed theirdesire to make confession. They were, therefore, producedbefore P.W.49 Somnath Gharge, an officer in the rank of S.P. Hewas Deputy Commissioner of Police, Headquarters. Herecorded their confessional statements. The C.A. reports were received. Adhesive tapes withwhich the hands and legs of the deceased were tied, matchedwith the adhesives tapes seized from the car. Moreover, theC.A. reports indicate the soil seized from the place whereat thedeceased was buried and the remains of the soil found on thecar matched. Upon completion of the investigation of the crime, Cri.Appeal No.684/2018 withconnected appeals:: 17 ::the proposed charge sheet (police papers) was submitted toP.W.13 Javed Ahmed, an officer in the rank of Additional DirectorGeneral of Police, for according sanction for prosecution of theappellants and others for offences under the MCOCA. Heaccorded sanction (Exh.200). The charge sheet thereafter cameto be filed before the Trial Court.10.The Trial Court, framed the Charge (Exh.81). Theappellants and others (acquitted accused) pleaded not guilty.Their defence was of false implication.11.The prosecution, to establish the charge, examined61 witnesses and produced in evidence certain documents. TheTrial Court, on appreciation of the evidence before it, convictedand consequently sentenced the appellants as stated above.12.Heard. Learned Advocates appearing for theappellants would submit that, the case was entirely based oncircumstantial evidence. They, therefore, relied on the judgmentof the Apex Court in case of Sharad Birdichand Sarda Vs.State of Maharashtra (1984 CJ (SC) 262) to submit that thecircumstances relied on have not been proved as has beenexpected in view of the observations of the Apex Court in Sharad Cri.Appeal No.684/2018 withconnected appeals:: 18 ::Sarda’s case (supra). According to the learned Advocates, theprosecution miserably failed to prove motive. According to them,motive plays an important role in case of circumstantialevidence. When the prosecution failed to prove motive, its casefalls flat. Shri Satej Jadhav, learned Advocate representing theappellants in Criminal Appeal Nos.684/2018, 685/2018,893/2018, 894/2018 and 588/2023 would submit that, there wasno concrete evidence to indicate that deceased Salim was in factabducted on the intervening night of 4 and 5 of March 2012. Theevidence as regards last seen together has not been proved.Almost all the witnesses examined on behalf of the prosecutionwere either interested in the outcome of the prosecution case orwere closely related to deceased Salim Qureshi, or belonged tohis community. Our attention was drawn to arrest panchanamas(Exhs.469 and 473) of appellant Syed Najer and Shoeb(acquitted accused) to indicate overwriting therein, suggestingfigure 302 to have been scored out. Learned Advocate meant tosay that, before appellant Imran Mehandi made the allegeddisclosure statement, pursuant to which the investigating agencyallegedly came to know for the first time that the deceased Salimwas murdered, he was very much in the know of Salim Qureshito have been murdered. They were also in the know of the placewhereat the deceased was buried. The alleged disclosure Cri.Appeal No.684/2018 withconnected appeals:: 19 ::statement (Exh.272) was, therefore, irrelevant and notadmissible in evidence. In support of their submissions, the learnedAdvocates placed strong reliance on the judgments of the ApexCourt in case of Boby Vs. State of Kerala (Criminal Appeal1439/2009, decided on 12/1/2023) and Ravishankar Vs. Stateof Chhatisgarh (Criminal Appeal No.3869/2023, decided on10/4/2024). The learned Advocate then adverted our attention tothe Compact Disc (CD, Exh.206) containing videography of thealleged disclosure statement. The learned Advocate urged thisCourt to view the CD as it contains the appellant Imran Mehandito have not made any disclosure statement. According to him,the CD simply indicates a slight movement of his lips. He wouldfurther submit that, the recording in the CD indicates that, one ofthe police officials was prompting the appellant Imran Mehandi topoint out the place whereat a piece of tile was kept foridentification of the place of burial of Salim. According to thelearned Advocate, the simultaneous investigation was on by theCrime Branch official. Appellant Imran Mehandi and some of theother appellants were arrested by the Crime Branch official. Theofficer who took them into custody has not been examined.What had transpired during their detention by the Crime Branchofficial is not known. The same caused a great prejudice to the Cri.Appeal No.684/2018 withconnected appeals:: 20 ::appellants. According to the learned Advocate, the factum ofmurder of Salim Qureshi and his burial at a particular place hadalready been known to the Crime Branch officials. The samewas communicated to P.W.57 Shri S.D. Shaikh, who simplymade a farce of recording a disclosure statement of appellantImran Mehandi to indicate that it was for the first time the policecame to know about the murder of Salim Qureshi. Written notesof submissions have also been placed on record with briefreference to the evidence of each and every relevant witnessand loopholes therein. Our attention was also drawn to theevidence of Naib Tahsildar and the Medical Officer. Theevidence of Medical Officer indicates that, P.W.57 Shri S.D.Shaikh had been to him with a letter of requisition of his services.According to said witness, P.W.57 Shri S.D. Shaikh had been tohim by 11.00 in the morning on the day on which appellant ImranMehandi allegedly made a disclosure statement. Our attentionwas then adverted to the letter written by P.W.57 Shri S.D.Shaikh, wherein it has been mentioned that a murder took placeand his services were required for on the spot post mortemexamination. According to learned Advocate, this fact goes along way to indicate the investigating officer to have alreadybeen in the know of the murder of Salim Qureshi before thedisclosure statement allegedly made by appellant Imran Cri.Appeal No.684/2018 withconnected appeals:: 21 ::Mehandi. According to learned Advocate, the so calleddisclosure statement, made by Imran Mehandi, contained in theCD could not be heard in open Court i.e. even before the TrialCourt and this Court as well. 13.Turning to the evidence of P.W.41 Shaikh Bashir, thelearned Advocate would submit that, he was a got up witness soas to make out a case of last seen together theory. Thestatement of this witness was recorded 8 days after the allegedincident. It is unnatural that this witness on his own goes to thepolice station and even the Court to have his statementsrecorded. The conduct of the said witness was unnatural sincehe did not inform his family members. According to the learnedAdvocate, the deceased had number of enemies. Name of noneof the appellants figured in the F.I.R. The F.I.R. was lodgedagainst some others. Even some of the prosecution witnesseswere detained, suspecting their involvement in the crime inquestion.14.Turning to the provisions of the MCOCA, the learnedAdvocate would submit that, although the confessionalstatements are admissible in evidence, their probative valueneeds to be proved. The learned Advocate pointed out Cri.Appeal No.684/2018 withconnected appeals:: 22 ::inconsistency between two of the three confessional statements.The inconsistency brought to our notice pertains to the motivebehind commission of the offence. In one of the confessionalstatements, it was stated that, sum of Rs.50 Lakhs were to beextorted from the deceased while the other confessionalstatement indicates that the deceased exploited poor personsand even misbehaved with Maulana of the Masjid. The learnedAdvocate would further submit that, two of the three appellantswho allegedly made confessional statements have immediatelyretracted therefrom. According to him, there is no evidence tocorroborate the confessional statements. The appellant JuberKhan who confessed, stated before the learned Chief JudicialMagistrate on his production, his statement to have had alreadybeen recorded on 9 March under duress. It was also pointed outthat, one of the appellants who made confessional statement,was produced before the learned Chief Judicial Magistrate verylate while the Statute mandates the production of the personmaking the confession before the Magistrate, forthwith. The learned Advocate further submits that, forthwithmeans without unreasonable delay. The appellant Najer Ali wasproduced before the learned Chief Judicial Magistrate on 14March instead of 13. As such, there was a delay of over 24hours in his production before the learned Chief Judicial Cri.Appeal No.684/2018 withconnected appeals:: 23 ::Magistrate. It was also pointed out that, the disclosure statementbears the words “U.P.”. The appellant Imran Mehandi, in hisexamination under section 313 of the Cr.P.C. and even duringcross-examination of the concerned witnesses, it was suggestedthat “U.P.” means “Under Pressure”. The same suggests that thepressure was exerted to obtain his statement under Section 27of the Evidence Act. According to learned Advocate, many of thewitnesses did not stand by the prosecution. Some irrelevantevidence has been adduced. There is no evidence to indicatewho was the owner of the Royal Servicing Centre, wherefromcertain articles allegedly used for digging up a pit were seized.The learned Advocate would further submit that, there was a gapof 30 minutes between the two visuals appearing in the videoshooting. He would further submit that, the knife recoveredpursuant to the alleged disclosure statement made by theappellant Imran Mehandi did not seem to have borne bloodstains when it was seized. The knife was recovered from aNallah. It was in water for some days. How come the C.A.report indicates the knife to have borne blood stains. Thelearned Advocate meant to say that the evidence has beenfabricated and tampered with. On the question of application ofMCOCA is concerned, the learned Advocate would submit that,the Special Court had passed an order directing the investigating Cri.Appeal No.684/2018 withconnected appeals:: 24 ::officer to invoke the provisions of MCOCA. The same indicatesnon-application of mind by the investigating officer. Our attentionwas drawn to the previous crimes registered against theappellants and others, relied upon to invoke the provisions ofMCOCA. According to the learned Advocate, by no stretch ofimagination, the offence in question could be termed to be anorganised crime. 15.In short, according to the learned Advocatesrepresenting the appellants, the evidence has been fabricated soas to suit the prosecution case. The offence/s could not be saidto have been proved beyond reasonable doubt. The learnedAdvocates ultimately urged for allowing the Appeals.16.The learned A.P.P. and learned Advocaterepresenting the informant would, on the other hand, submit that,the case of abduction is based on direct evidence. Evidence ofP.W.30 Ferozkhan and P.W.41 Sk. Bashir was relied on in thisregard. According to them, when the prosecution proved thedeceased Salim Qureshi to have been abducted by the appellantImran Mehandi and the rest of the appellants, it was, therefore,for them, to explain what they did with the deceased. Thelearned A.P.P. relied on Section 106 of the Evidence Act in this Cri.Appeal No.684/2018 withconnected appeals:: 25 ::regard. According to them, the dead body of Salim Qureshi wasfound to have been buried. The said fact came to the knowledgeof the investigating machinery for the first time when theappellant Imran Mehandi made a disclosure statement and ledthe police authorities to the place whereat the dead body ofSalim Qureshi was buried. According to learned Advocates, thehands and legs of the deceased were found to have been tiedwith adhesive tapes. According to them, the deceased woulduse Wagon-R car. The car was seized. During its search, threeadhesive tapes were found. The C.A. report (Exh.555) indicatesthat the adhesive tapes which were seized during investigation,matched with each other in respect of hue, appearance andphysico-thermal characteristics. According to them, there isample evidence to indicate the deceased was abducted in hiscar itself. The car was later on abandoned. The same wasevident from the disclosure statement made by appellant Jahir.According to them, although some of the witnesses did not standby the prosecution, the evidence of the investigating officer couldnot be disbelieved. The place wherefrom the deceased wasabducted, was identified since the spectacle of the deceasedwas found thereat. The spectacle has been identified by his realbrothers and other close relatives. The prosecution did not haveany reason to plant the spectacle at a particular place, since Cri.Appeal No.684/2018 withconnected appeals:: 26 ::when it was found and seized, the involvement of the appellantsin the crime in question had even not come to light. According tolearned A.P.P., the appellants had a strong motive to commit thecrime. A 72 year old witness, who was looking after the affairs ofthe Masjid was examined. There was no reason to disbelievehis evidence, which indicates the deceased wanted to collect thedonation for Masjid and appropriate the same for himself. Hehad even collected the same. The appellant Imran Mehandi didnot like the same. Our attention was then drawn to evidence ofP.W.24 Sk. Jakir, P.W.25 Sk. Abdul Sattar and P.W.32 Salman toindicate the deceased was involved in money lending business.According to them, there was even evidence to indicate that theappellant Imran Mehandi wanted to hold supremacy overdeceased Salim Qureshi in the area of Asefiya Colony. Ourattention then was drawn to the evidence of P.W.22 Sk. Fahim,P.W.28 Arshad and P.W.34 Halim to indicate the witnesses tohave had seen the vehicles going fast from Town Hall area. 17.The learned A.P.P. then adverted our attention to theconfessional statements of the appellants Juber, Syed Jahir andNajer to submit that those have been recorded in compliancewith the mandate of Section 18 of the MCOCA and the relevantrules thereunder. According to him, the confessional statement Cri.Appeal No.684/2018 withconnected appeals:: 27 ::is a substantive piece of evidence. A reliance has been placedon the following judgments of Hon’ble Supreme Court of India:(1)Mohd. Farooq Abdul Gafur & anr. Vs. State ofMaharashtra etc. etc. (2010) 14 SCC 641(2)State of Tamil Nadu Vs. Nalini (1999) 5 SCC 253.18.According to learned A.P.P., if there is an acquittalfrom the offence under the Special Act, the confessionalstatements still do not lose their efficacy so far as regardsoffences under the Indian Penal Code or other offences withwhich the concerned were charged and tried along with offencesunder the Special Act. Written notes of submissions have alsobeen placed on record, adverting to the evidence of the relevantwitnesses and the role of the investigating officer. Only with aview to avoid repetition, we do not propose to refer to thesubmissions made by learned A.P.P. in his written notes ofarguments.19.Shri Bachate, learned Advocate relied on followingset of judgments of the Apex Court and this Court, firstly tosubmit that, pecuniary advantage is not the only ground forinvoking MCOCA. He brought to our notice the definition of theoffence of organised crime and particularly the words, “other Cri.Appeal No.684/2018 withconnected appeals:: 28 ::advantage”. According to the learned Advocate, the evidencewas recorded six years after the incident. He meant to say that,no witness is expected have a photographic memory. Memory ofa witness may not serve him a well at a time. There are,therefore, bound to be some inconsistencies inter-se theevidence of the witnesses. The inconsistencies which do not goto the root of the matter have to be ignored. The authoritiesrelied on are as follows :-1)State through Superintendent of Police, CBI/SITVs. Nalini & ors. etc. etc. (1999) 5 SCC 2532)Review Petition (Crl.) Nos.446-447 of 2019 inCriminal Appeal Nos.1174-1175 of 2019Manoharan Vs. State by Inspector of Police, Variety HallPolice Station, Coimbatore, decided on 7/11/20193)Zakir Abdul Mirajkar Vs. The State of Maharashtra& Ors. (2022 ALL MR 9Cri) 3798 (SC)4)Abhishek Vs. State of Maharashtra & ors.(2022) 8 SCC 2825)Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State ofMaharashtra, 2022 ALL MR (Cri) 30356)C. Muniappan & ors. Vs. State of Tamilnadu(2010) 9 SCC 5677)Mohd. Farooq Abdul Gafur & anr. Vs. State of Maharashtra(2010) 14 SCC 6418)State of Maharashtra Vs. Damu Gopinath Shinde & ors.(2000) 6 SCC 2699)M. Nageswara Reddy Vs. State of Andhra Pradesh & ors.(2022) 5 SCC 791 Cri.Appeal No.684/2018 withconnected appeals:: 29 ::10)Sucha Singh Vs. State of Punjab(2001) 4 SCC 37511)State of W.B. Vs. Mir. Mohammad Omar & ors.(2000) 8 SCC 38212)State of U.P. Vs. Krishna Gopal & anr.(1988) 4 SCC 30213)Manoharan Vs. State by Inspector of Police(2019) 7 SCC 71614)State of T.N. Vs. Kutty Alias Lakshmi Narasimhan(2001) 6 SCC 55020.Relying on the judgment in case of Abhishek (supra),the learned Advocate would submit that, the offence in questionwas an organised crime committed by the members of theorganised crime syndicate headed by the appellant ImranMehandi. According to him, we have to see the gist of the matterand not the form of sanction for prosecution. On the question ofdefective investigation is concerned, the learned Advocate wouldsubmit that, the benefit thereof should not go to the actual culprit.According to him, a law on this issue is well settled that thedefect in investigation in itself cannot be the ground for acquittal.Relying on the authoritative pronouncements of the Apex Courtin case of M. Nageswara Reddy (supra), he would submit that,merely because the witnesses are relations, their evidencecannot be brushed aside. He would further submit that, whenthere is a confession, there always happens retraction on legal Cri.Appeal No.684/2018 withconnected appeals:: 30 ::advice. According to him, the confessional statements havebeen duly corroborated by the other evidence. He would furthersubmit that, confessional statement is a substantive piece ofevidence against the maker himself and co-accused as well. Inthis regard, he relied on the judgment of the Apex Court in caseMohd. Farooq (supra) and State of T.N. Vs. Nalini (supra). Learned A.P.P. and learned Advocate for thecomplainant ultimately urged for dismissal of the appeals.21.We do not propose to detain ourselves with thesubmissions advanced by learned A.P.P. and the learnedAdvocate for the informant. Keeping in mind, their submissionsand the authorities relied on, let us proceed to appreciate theevidence in the case. It needs no mention that, each criminalcase has its peculiar facts and circumstances. The case has,therefore, to be decided on the evidence produced therein.ADMITTED FACTS :22.Deceased Salim Qureshi was a businessman andpolitician as well. He had two brothers. The informant was histwin brother. The deceased had two wives. His secondmarriage was interfaith. The second wife was Hindu by religion. Cri.Appeal No.684/2018 withconnected appeals:: 31 ::The deceased owned “Roxy Theatre”. There was a disputebetween him and the erstwhile owners of the theatre. There is,however, evidence to indicate that the dispute was settled.Names of erstwhile owners figured in the F.I.R. only onsuspicion. 23.The fact that deceased Salim Qureshi met withhomicidal death is undisputed before us. The dead body ofSalim was exhumed and subjected to on the spot post mortemexamination on 11 March is also undisputed, although the saidfact was disputed before the Trial Court. The dead body wasidentified by his brother (informant Halim). Moreover, there is awitness examined by the prosecution (P.W.59 Shrikant) toestablish identity of the deceased, based on the DNA of hismother. As such, it is reiterated that, deceased Salim Qureshimet with a homicidal death is a fact not in dispute now. The postmortem examination report (Exh.303) indicates the deceaseddied of multiple stab injuries over face and neck. 24.The question is, whether the appellants are theauthors of the crime they have been convicted for. The case isbased on circumstantial evidence. Direct evidence has alsobeen introduced as regards abduction of the deceased. In caseof Sharad Sarda (supra), it has been observed :