MANGESH MOHAN CHAVAN vs. THE STATE OF MAHARASHTRA

2021:BHC-AS:5749-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1262 of 2013
with
Criminal Application Nos. 131 and 298 OF 2018
Vilas Dagdu Shinde
Age:62
R/o. Shivaji Nagar, Room No.163,
Sion, Koliwada, Sion (E).
....Appellant/
Org.Accused No.5
Versus
The State of Maharashtra
At the instance of Sion Police Station
C.R. No.286/2011 ...Respondent
with
Criminal Appeal No. 1283 of 2013
Abhijit Bharat Babar
Age 24 years
r/o. Mahatma Phule Nagar,
in front of Anil Decorators
IIT Market, Powai,
Mumbai 76. ....Appellant/
Org.Accused No.3
Versus
The State of Maharashtra
(at the instance of DCB CID
C.R. No.74/2011)
Sion Police Station
C.R. No.286/2011 ....Respondent
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with
Criminal Appeal No. 498 of 2014
with
Criminal Application Nos. 297 AND 1520 OF 2018
and
Interim Application No.855 OF 2020
1. Ganesh Devidas Shinde alias Ganya
r/o.Room No.116, Akash Society,
Behind Roopam Theater, Sion,
Mumbai.
2. Shri Ganesh Dhondiram Nichite alias
Bajrang alias Taklya Ganya
r/o. Shaufan Chowki, Near Khandoba
Temple, Katwadi pada, Zopadpatti,
Ghatkopar (W), Mumbai.
....Appellants/
Org.Accused No.1
& 2
Versus
The State of Maharashtra
(at the instanace of DCB, CID
C.R. No.74/2011)
Sion Police Station
C.R. No.286/2011
....Respondent
with
Criminal Appeal No. 543 of 2014
Mangesh Mohan Chavan
r/o. Room No.12, Chawl No.12,
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Shivshakti Chawl Maharashtra Nagar,
Mankhurd, Mumbai 88.
....Appellant/
Org.Accused No.4
Versus
The State of Maharashtra
(at the instance of DCB, CID
C.R. No.74/2011)
Sion Police Station
C.R. NO.286/2011 ....Respondent
Mr. Aniket Vagal, advocate for the appellant in criminal appeal
No.1262 of 2013.
Mr. Kuldeep S. Patil, advocate for the appellants in criminal appeal
Nos. 498 and 543 of 2014.
Ms. Apeksha Vora, advocate for the appellant in criminal appeal No.
1283 of 2013.
Mrs. M. M. Deshmukh, APP for the State.
CORAM : PRASANNA B. VARALE
& S.M. MODAK, JJ.
th
Reserved On : 12 February 2021.
rd
Pronounced On : 23 April 2021
JUDGMENT (PER S.M. MODAK,J)
These appeals arise from a judgment of conviction
delivered by Special Court MCOC Greater Mumbai in MCOC Spl.
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Case No.20 of 2011 on 31.10.2013. The case pertains to an era when
life of Mumbai was faced with many extortion cases. It has affected all
sorts of businessmen including industrialists, builders, etc. In the case
before us, the entrepreneur dealing with travel business was the
scapegoat of the extortionist.
2. The victim/first informant/PW No.12 was having a travel
business office at Sion Koliwada, Antop Hill, Mumbai. His business
name was “Sangeeta Travels”. There are offices having similar business
and other business in and around his office. The first informant was
terrorized by showing chopper and he was abducted by Ganesh Shinde
- accused No.1. He was accompanied by Ganesh Nichite - accused
No.2. They were accompanied by one unknown person whose identity
is subsequently disclosed as accused No.4 - Mangesh Chavan.
3. Accused Nos.1 & 2 were known to first informant earlier.
They were selling movie tickets illegally. The abductors used the
Innova car of the first informant. PW No. 11 drew the Innova car as
dominated by the abductors. The apparent reason for abduction was
extracting huge amount of Rs.5 lakh from the victim. But trial court felt
it otherwise. If the ransom could not have been paid the abductors
might have committed his murder. They took the victim to Powai.
Their companion joined them during journey. He was accused No.3
Abhijit.
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4. The first informant made all attempts to arrange for the
ransom amount. He was successful. Accused No.5 Vilas Shinde
collected the ransom amount from the office of first informant PW
No.12. Office staff of first informant/PW No.1 delivered the amount.
The abductors scot free the first informant. This happened on
03.9.2011 .
5. The victim was traumatized due to this incident. He did
nothing till 3.9.2011. He alongwith his wife dared to visit Sion Police
Station on 3.9.2011 at 21.15 hrs. for their help. PW No.18 PSI Devkate
listened them and recorded his complaint as an offence under Sections
363,364(A),386, 506(II),34 IPC.
6. Crime Branch Unit No.4, Mumbai investigated the matter
and arrested in all 6 accused persons. PW No.19 API Nikam revealed
involvement of crime syndicate headed by Ganesh - accused No.1. He
sought approval to proceed under the provisions of MCOC Act. As a
result PW No.20-ACP Kale carried out further investigation. Sanction
was obtained from PW No. 13 – Arup Patnaik.
7. All accused faced trial for the offences punishable under
Sections 364,323,386,392, r/w Section 34, 120(B) of IPC and under
section 3(1)(ii), 3(4) of Maharashtra Control of Organised Crime Act,
1999 (hereinafter referred to as MCOC Act) under section 4 read with
S. 25 of the Arms Act. Their defence is of denial. Twenty witnesses
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deposed in favour of the prosecution. Whereas 2 witnesses deposed in
support of theory of raising money by pledging ornaments. Accused
No. 1 wants to claim source of Rs. 15,000/- which was seized during
investigation being part of extorted money. According to accused No.1
this amount was raised after pledging the ornaments by his sister Mrs
Laxmi Malve to Jeweller Mr Chandresekhar Mehta. It does not find
favour with the trial Court.
8. Trial Court acquitted accused No.6 Ravi from all charges
whereas --
Accused Nos.1 to 5
were convicted for the offences punishable under Sections 364, 386 r/w
Section 120 B of IPC
and
under Section 3(1)(ii) and Section 3(4) of the MCOC Act, 1999.
Accused Nos.1 and 2
were convicted for the offence punishable under Section 4 read with
section 25 of the Arms Act
whereas accused no.1
was convicted for the offence under Section 323 of IPC only.
Accused Nos.1 to 6 were acquitted for the offence punishable under
Section 392 r/w. Section 120B of IPC.
9. Accused Nos.1 to 5 are before this Court as appellants. We
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have heard learned advocate Shri Kuldeep Patil (in appeal No.498 and
543/2014) and Shri Aniket Wagal (in Appeal No.1262/2013) and Smt.
Apeksha Vora (in Appeal No.1283/2013). Learned APP Smt.
Deshmukh argued for State.
10. Out of 20 witnesses, topic wise witnesses are as follows:-
a) On the point of abduction
i) PW 9 Changayya Naidu, Sweeper
ii) PW 11 Suresh, driver
iii) PW 12 Satish Nayak
b) On the point of arrangement of ransom amount
PW-2 (name hidden)
PW-3 (name hidden)
PW-4 (name hidden)
PW-5 (name hidden)
PW-1 (on the point of handing over amount to accused no.5)
c) On the point of various panchnama
PW-6 Vyankatesh Kalidas Devendra
PW-14 Prakash Mahadev Patil
PW-15 Shivenkumar Tiyar
PW-16 David Rmugam Devendra
d) On the point of proving call details
PW-7 Varunkumar Subholchandra Banarjee.
PW-10 Yogesh Shrikrishana Rajapurkar
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e) On the point of initial investigation
PW-18 Ramchandra Dasharath Devkate
PW-19 Sanjay Bhikaji Nikam
f) On the point of investigation after invocation
of MCOC Act
PW-13 Arup Mohan Patnayak.
PW-20 Digambar Dhondopant Kale
g) Others
PW-8 Deepak Narayan Jadhav –Tahsildar.
PW-17 Dr. Prashant Vinayak Ghuge—M.O.
11. The summary of points raised during their arguments is as
follows:-
a) The evidence of 3 so called eye witnesses PW Nos.9,11 and
12 is not reliable and trustworthy.
b) Inaction on the part of PW Nos. 11 and 12 from 3.9.2011
(after the incident) till lodging of FIR on 4.9.2011 is surprising
and sufficient enough to disbelieve them.
c) So called explanation given by PW No.9 about approaching
Matunga Police Station is not supported by any evidence and is
false.
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d) There is no consistency in between PW No.12 victim, PW
No.11 driver on one hand, PW Nos.2,3,4,5 (on the point of
raising ransom amount and giving it) on second hand and
PW 1 Basarvaj (office staff) on the third hand.
e) Huge amount of Rs.5 lakhs was alleged to be paid as
ransom whereas meagre amount of Rs. 64,429/- was seized.
f) There is no evidence to connect the currency notes
comprising ransom amount and currency notes recovered.
g) There are defects in parade and identification evidence is
weak.
12. Regarding invocation and compliance of the provisions of
MCOC Act, their points of argument are summarized as follows:-
a) the alleged activity headed by accused No.1 Ganesh does not
fall within the definition of continuous unlawful activity.
b) there are no 2 chargesheets filed against accused Nos. 2 to 5.
c) there is no evidence to suggest that concerned Courts have
taken cognizance in 2 referred charge-sheets.
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d) sanction is defective and there is non-application of mind by
the authority.
13. Alternatively there is submission about reduction in
sentence as sentence is too harsh.
14. As against this, learned APP supported the judgment. She
justified the judgment by canvassing following points:-
a) there is no delay in approaching police by victim. The time
spent was natural considering the trauma sustained.
b)the evidence of PW No.9,11 & 12 is reliable. Inconsistencies,
if any, are natural inconsistencies and that is minor aspect.
c) the evidence of PW Nos.2 to 6 on one hand & PW Nos.1,9,11
and 12 corroborates each other.
d) the story put forth by defence about custody of cash is rejected
by the trial Court.
e) recovery of chopper and cash attributes knowledge on the
point of concerned accused persons.
f) the identification parade was followed correctly.
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g) provisions of MCOC Act were rightly invoked and were
complied scrupulously.
15. Apart from above points, there is one more point raised by
learned advocate Smt. Vora while arguing on behalf of appellant in
appeal No.1283/2013. This point does not relate to her client accused
No.3. She had opted to take up this point. According to her, role
attributed to accused No.3 Abhijit in the charge 3rdly under section
386 r/w 120B of IPC is wrong. As per prosecution story in fact accused
no.4 Mangesh joined accused nos.1,2 since beginning and later on
accused No.3 joined. Whereas while framing that charge, the trial Court
has interchanged in between accused Nos.3 and 4.
16. According to her, it has caused prejudice to accused in
general and to accused Nos.3 and 4 in particular. Learned APP though
fairly admitted the mistake in that head of charge, there is no prejudice
to any of the accused person. She emphasized on participating in the
trial without protest by any of the accused persons. She relied upon
two judgments. Hence, following points arise for our determination:-
POINTS

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GENERAL OBSERVATIONS ABOUT THE JUDGMENT
17. With the assistance of learned advocate, we have perused
the judgment but what we find is that even though offence under
Section 364 A of IPC is mentioned in the charge-sheet, the trial Court
has framed the charge under Section 364 of IPC. In both these sections
kidnapping/abduction is common. The purpose is different. When for
committing murder the act is committed, offence falls under Section
364 whereas when the purpose of kidnapping is for ransom etc. that
falls under Section 364 A of IPC. Chargesheet says that the victim was
abducted for pressurizing him to part away the ransom amount of Rs.5
lacs. Whereas in the charge firstly the trial Court has framed the charge
under Section 364 read with Section 34 of IPC by describing the
ingredients of Section 364 of IPC that is to say for committing murder
or putting in danger of murder. Nothing from the record is pointed out
that why there is a deviation from Section 364 A of IPC to Section 364
of IPC. So chargesheet was filed under section 364-A of IPC whereas
trial court framed charge under section 364 of IPC prosecution kept
mum and adduced evidence as if charge is framed under section 364-A
of IPC.
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Some time it happens that intention to kill and intention to
extract ransom are closely connected. So it is difficult to find out the
real intention. Fact remains that the witnesses were examined and
accused have participated in the trial. So we have to scrutinize the
evidence with a view to find that whether offence under section 364 of
IPC is disclosed ? We have also to ascertain what is to be done of the
evidence adduced on the point of payment of ransom ? And whether it
is feasible to frame charge under section 364-A IPC at this stage ?
So also we find that the evidence on the point of hatching a
criminal conspiracy falls short to prove the offence under Section 120B
of IPC though the trial Court has convicted accused Nos. 1 to 5 by
taking recourse to Section 120B of IPC. We will give the reasons for
that herein after.
18. There is some commonness in between Section 386 and
Section 364 of IPC. So also offence under Section 386 is converted to
Section 392 of IPC when robbery is committed.
19. It is pertinent to note that though the trial Court has
convicted accused Nos.1 to 5 for the offence punishable under Section
386 of the IPC, on the same evidence they were acquitted for the
offence punishable under Section 392 of the IPC. Under Section 390
of the IPC, extortion becomes robbery when the victim is put to the
fear of instant death or hurt or wrongful restraint and induces to deliver
the property; whereas putting the victim to fear of death or grievous
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hurt while committing extortion is also the ingredient of Section 386 of
the IPC. The robbery defined under Section 390 of the IPC is made
punishable under Section 392 of the IPC. The scope of Section 390 is
wider than the Section 386 of IPC. So also, extortion becomes in
Section 390 of IPC when the fear is instant whereas it is not so in
Section 386 of IPC.

POINT NO.1
SHOWING WRONG INVOLVEMENT TO A3 AND A 4.
20. We have read the summary of allegations given in the
chargesheet. Prosecution has alleged that accused No.4 Mangesh
Chavan accompanied accused Nos.1 & 2 since beginning whereas it is
the accused No.3 who joined lateron. Whereas in the charge framed by
the Special Court and more specifically under the head thirdly the
following role is alleged --
“Accused Nos. 1 to 3 abducted the victim and accused No.4
joined subsequently.”
21. So it is clear that prosecution has not alleged the role to
accused Nos.3 and 4 in the manner referred to in the charge-sheet.
Question does not rest there. This Court has to ascertain what is its
effect on the right of the accused to fair trial? Fair trial includes all
opportunities to defend the material evidence against him. So it implies
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right to know correct material/evidence against him. If prosecuting
agency places wrong evidence/forgets to produce proper evidence
(claims to rely on it afterwards) it does not amount to conducting fair
trial. Similar duty is cast upon the trial Judge to ensure that trial is
conducted fairly.
22. There are guidelines given in the statute about manner of
framing charge. That find place in section 211 to section 224 of Cr.P.C.
(Chapter XVII, Part A). Section 212 of Cr.P.C. talks about particulars to
be included in the charge. Whereas Section 223 of Cr.P.C. talks about
the persons who can be charged together. This procedure is required to
be followed by every Judge who frames the charge. Cr.P.C. also provide
guidelines about effect of irregularities in trial. Chapter XXXV
incorporate those provisions. Error in framing of charge is not
specifically provided as an irregularity under Section 460 and under
Section 461 of Cr.P.C. Error in the framing of charge is separately
considered in section 464 of Cr.P.C.
23. If we read the provisions of Section 464 of Criminal
Procedure Code, we can find that findings, sentence or order of the
Court is not treated as invalid merely on the ground of an error or
omission in the charge. This is the general principle. There is one
exception. If there is failure of justice then there are two contingencies.
If there is omission to frame a charge, that omitted charge can be
framed and, thereafter, trial can be conducted. If there is an error in the
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charge, then also new trial has to be conducted.
24. Sub-section(2) to Section 465 of Cr.P.C. further puts a
restriction on giving benefit to the accused in case of error, omission in
any proceedings. The said sub-section is couched in a wider sense. Not
only in case of error, omission in the charge but if such lacuna is there in
any proceedings, further course of action can be resorted to. There is a
one rider “while deciding the issue of failure of justice” the Court has to
ascertain whether there was an opportunity available to the accused to
take an objection and whether that opportunity has been exhausted. In
other words, if opportunity is available and if it is not exhausted, one of
the factor for deciding ‘a failure of justice’ is not available to the
accused. According to learned Additional Public Prosecutor even
though there is a defect in charge 3rdly (while describing the role
attributed to accused nos.3 & 4) there is no failure of justice caused to
those two accused and also to other accused persons.
25. In the judgment of “Mala Singh & ors. V/s State of
Haryana reported in (2019) 5 SCC 127”, the issue before Hon’ble
Supreme Court was “whether the Court can convict the accused for the
offence punishable under Section 302 by resorting to provisions of
Section 34 of IPC” (when there is no charge by referring to Section 34
but there was a charge by applying the provisions of Section 149 of
IPC). Hon’ble Supreme Court has reiterated the interpretation given in
earlier judgments including the judgment in case of Laxman Singh v/s.
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1
State . It is true that there is a difference between the wordings and
ingredients of Section 149 and Section 34 of IPC. Considering the
facts of that case, Hon’ble Supreme Court was pleased to convict the
appellants Nos.2 and 3 for the offences punishable under Section 324
of IPC for their individual acts (instead of punishing them under
Section 302 read with Section 34 of IPC). The principles laid down
therein will certainly be useful to us.
26. Whereas in the case of K.Prema S.Rao and anr. v/s Yadla
Shriniwas Rao reported in (2003) 1 SCC 217 the accused was tried for
the offences punishable under Section 498A, 304 B of IPC. There was
conviction under Section 498A of IPC. The High Court of Andhra
Pradesh convicted the accused under Section 306 of IPC instead of
Section 304B of IPC. There is also discussion by considering the
provisions of Section 221, 215 of the Code of Criminal Procedure. On
facts the conviction under Section 306 of IPC was upheld “even though
there was no charge under that Section”. Whereas in a case before us
charge 3rdly was not framed for a wrong section of the IPC but there
was an error in describing the role attributed to the accused Nos. 3 and
4. Now the Court has to satisfy himself as to whether there was failure
of justice.
27. When considered by keeping in mind the above test, we
can find that either accused Nos.3 and 4 or any of the accused have not
1
AIR 1952 SC 167
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faced with the difficulty of facing a trial consisting of all together new
case because the prosecution have examined witnesses on the point of
involvement of accused Nos.3 and 4 about the act of kidnapping and
extortion. Concerned witnesses have described the role given to accused
Nos. 3 & 4 as per original chargesheet. The concerned witnesses are
PW No.9 Changayya (sweeper) PW No.11 – driver Suresh and PW
No.12 – first informant Satish Naik. They have not deposed as per the
role described to accused Nos. 3 and 4 in the charge but they have
deposed as per the role attributed to them as per chargesheet. These
two accused persons have also participated in the trial.
28. There is one more reason for rejecting the grievance of
failure of justice. Because from the trial Court record nothing was
pointed out to us that objection was taken. Learned Advocate Smt.
Vora made an attempt by submitting before us that accused No.4 was
not represented at the time of framing of a charge on 20.05.2013 and in
fact he filed the Vakalatnama on 17.6.2013 through Advocate
R.V.Tiwari. She may be right insofar as these factual aspects are
concerned but it nowhere take us to the possibility of failure of justice.
So for the above discussion there is no merit in granting any of the
reliefs as contemplated in Section 464 and 465 of the Code of Criminal
Procedure. We answer this issue in the negative.
POINTS NOS.2, 3 & 4 :-
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29. The judgment of the trial Court is challenged mainly on the
ground of :-
(i) inconsistency in between the evidence of prosecution witnesses,
(ii) delay on the part of first informant to approach the police and
(iii) the conduct of the first informant, his driver in not protesting the
act of abduction and the act of threat given to them throughout the
journey from the office at Sion circle till the time first informant was
dropped at Kanjurmarg signal.
30. It is pertinent to note that police have applied stringent
provisions of MCOC Act. They have invoked the provisions of said
Act when the incident of abduction had taken place. Police have
verified the record of the leader of the syndicate i.e. accused No.1
Ganesh. Whether the provisions of MCOC Act were invoked rightly or
wrongly will be decided later on. But when such is a situation, the
evidence cannot be appreciated by the Court in a manner in which
evidence is appreciated in a criminal trial involving offences under
Indian Penal Code plainly. So the objection about not protesting the
act of abduction immediately, the act of not approaching the police
immediately cannot be appreciated in a normal way. This is so because
the wrong doers are not the persons coming into conflict with law for
the first time but they are professional criminals. After appreciating the
evidence of relevant witnesses, it will be decided whether yardstick for
appreciation of evidence different from normal yardstick will be
applicable or not.
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31. If we read the evidence of PW No.9 (office boy), PW No.11
(driver) and PW 12 (victim), the following facts emerge :-
(a) PW No. 9 came to the office as usual on 03/09/2011 at
7.00 a.m. Accused No.1, accused No.2 Taklya and one more boy
came there. Accused No.1 inquired with him about the owner. All
of them stood outside the office.
(b) PW No.12 the victim, came to office at about 8.00 a.m.
Changayya (PW No. 9) was sitting. Accused No.1 followed the
victim.
(c) PW No. 11 (driver) came to the office with Innova car.
He heard exchange of words in between his owner Satish Nayak and
accused No.1 Ganesh Shinde.
(d) Accused No.1 asked Satish Nayak (PW No. 12) about
owner of the Innova car. He threatened the owner.
(e) When the owner shown reluctance to come out of the
office, the accused No.1 threatened him by taking out a chopper.
(f) Accused No.1 compelled the owner PW No. 12 to sit in
the Innova car.
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(g) Again accused No.1 forced owner to occupy the car by
brandishing the chopper.
(h) In the car, PW No. 11 was driving and accused No.2 and
another boy were sitting on the front side whereas the victim was
sitting behind the driver and the accused No.1 was sitting near to
him.
32. From the above, it is clear that on more than one occasion,
the accused No.1 has created terror in the mind of the owner so that he
will act as per his directions. This can only be the intention if the
chopper is shown. It is pertinent to note that the owner was knowing
the accused Nos.1 and 2 earlier to the incident for the reason that
accused No.1 was selling movie tickets near the theater at Sion and
accused No.2 used to roam along with accused No.1. When we have
tried to understand the psychology of the victim – PW No.12, it is true
that one cannot understand it by peeping into his mind. It can be
understood by looking at conduct. How he has reacted, behaved. It
includes acts as well as omissions. That is to say that what victim - PW
No.12 could have done and what he has not done. All this exercise
gains importance in view of the fact that there was emphasis on behalf
of the appellants on the overall conduct of the victim during this
episode.
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33. If we could guess the probable conduct of the victim (when
he was forced to sit in the car) we may say that he could have refused to
sit by action, he could have shouted for help or he could have phone
called any one or he could have asked two of his colleagues PW No.9
and PW No.11 to do something etc. But the victim has not resorted to
any of such action. Instead he had chosen to sit in the car. On deeper
scrutiny of the evidence, we find that victim had chosen to sit in the car
probably due to the fact that he was knowing accused Nos. 1 and 2
earlier. He was knowing who are the persons forcing him to accompany
them. If the abductors were unknown to him, then the reaction of the
victim could have been different. Unless Court will understand the
psychology of the witness prevailing at the time of incident, it will not
be proper to appreciate the evidence in the context of defence
objections.
34. After witnessing the incident adjoining shopkeepers have
gathered at the spot. PW No.11 and 12 both were cross-examined on
the point of situation prevailing at the spot. The road in front of the
office of PW No.12 is normally used by passerby. No police patrolling
is there in that area. Several vehicles are not being parked in that area.
Even there is no police at Sion circle. There are other offices of tourist
company at the spot. So also cinema theater is situated opposite the
office. There are 3 roads near the spot. In such surrounding also, in the
morning, there was no rush of people.
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24 / 82 Cr.Apeal.1262.13.odt
35. The spot panchnama at Exhibit 106 was carried out by PW
No.18 on 4.9.2011. The panchnama covers the place of office, then
towards Powai. From the above it can very well be said that the office
of PW No.12 is surrounded by offices, cinema theaters etc. It is but
natural there would be movement of public at the spot. The incident
took place at 8.00 a.m. so there may not be much movement of the
public near the spot.
36. So no doubt it is true that spot is surrounded by shops.
Some of the shopkeepers were knowing and some of them are not
knowing the victim and his colleagues. Then "why they have not
protested or not reacted" is the question which will certainly crop up in
the mind. We got a answer from the facts stated by PW No.12. Accused
No.1 threatened them to go and that is why persons got scared and they
went away. It is the normal tendency in the era of globalization. It is
usual phenomena to keep yourself away from the surroundings.
37. We have perused the cross examination of the three
witnesses on this aspect. We do not find any substance so as to suggest
other possibility. Moving a person from one place to another place by
using force is defined as abduction under Section 362 of IPC. There are
aggravated forms of abduction. It depends upon the purpose for which
the victim is abducted. If committing murder is the object, then it is
punishable under section 364 of IPC. Whereas section 364A will be
applicable if the object is extracting ransom.
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25 / 82 Cr.Apeal.1262.13.odt
38. For this purpose evidence of PW No.9 - Changayya is not
relevant. We can gather it from the evidence of PW No.12 victim and
PW No.11 driver. Following facts emerge from their evidence:
EVENTS POST SITTING IN THE CAR
(a) Accused No.1 instructed the driver Sachin to drive the
vehicle towards Sion circle and to stop at Chunnabati/Chembur
(Chunnabati or Chembur does not make much difference).
(b) Accused No.1 made a demand of Rs.5 lakhs when the car
reached near Sion circle and when expressed about inability,
accused No.1 assaulted the victim – PW No.12. Driver was told to
take the car to Powai. Accused No.1 snatched mobile handset of
the driver -PW No.11 and that of victim – PW No.12 and demand
of Rs.5 lakhs was made (it is but natural that the driver cannot pay
full attention to the conversation because he has to concentrate on
driving). The driver was asked to drive the car towards Powai.
The driver stopped the car near Chunabhatti. There also the
victim was beaten by accused No.1. The boy had boarded the car
and he sat near the victim.
(c) Accused No.1 asked the driver to take the car to secluded place
and on the way accused No.1 snatched the mobile handset of both
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26 / 82 Cr.Apeal.1262.13.odt
PW No.11 and 12 (there may be a variance exactly at which place
their mobile handsets were snatched but fact remains both have
stated about taking away their mobiles).
(d) Again accused No.1 assaulted the victim by making a
demand of Rs.5 lakhs. On expressing inability, accused No.1
returned the mobile handset to the victim. The victim called
Madhav Nayak (who is supposed to be PW No.3). The said
witness expressed difficulty. Accused No.1 was alert enough to take
back the mobile handset from the victim and switch it off. Victim
called Madhav Nayak on two occasions whereas PW No.11 has
nd
only referred to calling Madhav Nayak on 2 occasion. This
omission is not material omission.
(e) Accused No.1 instructed his companions by saying “Yala zara
garam karun ana” (whereas in the evidence of the driver it has
come that accused No.1 instructed accused No. 2 and two other
boys to assault the victim).
(f) Both the witnesses said that the victim was taken near wall after
passing through a small lane. They thrashed him near the wall. It
seems that out of compulsion victim told the three persons to
inform accused No.1 that he will arrange for the amount and he
requested them not to kill him. The victim was brought back
again. Both have said that mobile handset of the victim was given
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back and victim called Shankar Ana (who is supposed to be PW
No.5) and requested him to arrange for Rs.5 lacs. The
conversation was in Tulu language (as per PW No.11).
(g) On that accused No.1 slapped the victim and threatened him
not to speak in a Tulu language. Then conversation was made in
Hindi language.
(h) Shankar Ana expressed his inability then accused no.1 took the
mobile from the victim and he talked with the witness.
(i) PW No.12 have reiterated about the conversation, accused No.1
made with Shankar Ana. There accused No.1 tried to give
justification for demand of the amount and it was in respect of
some motor vehicle transaction.
(j) Again the victim called Madhav Nayak – PW No.3 and
Madhav Nayak told the victim to enquire with his friend Rajesh
Keny (he is supposed to be PW No.4).
(k) Then victim called Rajesh Keny. He too expressed difficulty.
Victim reiterated the urgency. Rajesh Keny assured him to make
arrangement. Witness Rajesh Keny was instructed to pay the
amount to witness Madhav Anna.
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28 / 82 Cr.Apeal.1262.13.odt
(l) Witness Rajesh Keny handed over the amount to PW No.3
Madhav Anna (naturally PW No.11 and 12 are not the witness to
this incident). Witnesses Madhav Anna informed the victim about
receipt of the amount. Accused No.1 returned the mobile to the
victim and instructed him to verify about arrangement of the
amount.
(m) The victim enquired with Madhav Anna and victim told
accused No.1 that amount has been sent to victim’s office.
(n) Accused No.1 instructed one Ravi (accused No.6) from the
mobile of the victim and accused No.1 instructed Ravi to collect
the amount from Sangeeta Travels. The victim told Basavraj (who
is supposed to be PW No.1) to hand over the amount to one Ravi
or uncle of Ganya.
(o) After sometime victim received a call from Basavraj and
Basavraj got a confirmation from the witness about arrival of uncle
of accused No.1 in the office and payment of the amount. Victim
asked Basavraj to give the amount. Accused No.1 received a
missed call and accused No.1 got confirmation from the caller
about the receipt of the amount and then he returned the key of
the car to the driver. All these details were not said by the driver.
(p) Then accused No.1 told victim not to lodge police complaint
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29 / 82 Cr.Apeal.1262.13.odt
otherwise victim will be killed.
(q) The boy who boarded the car near Jhopadpati was dropped at
Jhopadpati. Accused No.1 has described him as “Abhijeet” (A-3).
Then the car was taken towards Kanjurmarg signal and victim was
dropped near his house. The accused No.1 handed over the
mobile handsets to PW No.11 and 12 and then again victim was
threatened not to lodge the complaint. All the abductors got down
near a traffic signal. Driver went towards office as he was to go to
Shirdi (as the car was hired for going to Shirdi).
COMMENTS:-
39. If we peruse above narrated events, we can find that
accused No.1 made demand of Rs.5 lakhs on more than one occasion.
The accused No.1 has made his intention clear in forcing victim to sit
in the car and took him towards Sion Circle/Chunabhatti and back to
Kanjurmarg Circle. It is only for the purpose of pressurizing the victim
by putting him in such a vexed position. If we peruse the chronology of
events very minutely, we may find pivotal role of accused No.1.
(a) first he took the victim.
(b) all instructions are given by him to driver/PW-11.
(c) he demanded amount of Rs.5 lakhs and he granted
liberty to PW No.12 to make arrangement of money.
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30 / 82 Cr.Apeal.1262.13.odt
(d) whenever required he gave mobile to victim and when
purpose is over, took back his mobile.
(e) when realized that, victim is not succumbing
to the demand, he put more pressure on victim by
instructing his companions to take victim to nearby
place and make the victim understand the consequences of not
fulfilling the demand.
40. We understand that incident of abducting and
purpose/motive of abducting are interconnected and mixed with each
other. At the start of act of abduction the purpose of abduction may not
be known. As the incident progresses, the intention becomes clear. It
has also happened in some cases that if the demand for ransom is not
fulfilled, the abductors have killed the victim. It is not the case herein.
We will ascertain whether intention to commit murder can be find out ?
41. We have read the cross examination of PW No.11 and PW
No.12. We find there is cross examination on the point of earlier quarrel
of PW No.12 with accused No.1, lodging of complaint by complainant
Changayya, situation at the spot, TI parade, earlier identification in the
police station and certain omissions. But what we find the incidents
have not been seriously challenged. In fact there is no challenge. Even
cross examination in respect of certain issues mentioned above is not in
detail.
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31 / 82 Cr.Apeal.1262.13.odt
OMISSIONS
42. Omissions do play important role in appreciation of
evidence. If they are on material aspect, it affects the reliability of the
witnesses. To verify this aspect we have seen the evidence of PW No.11,
12, evidence of PW No. 18 (who recorded the complaint) and the FIR
(at Exhibit 86) also.
43. We can comment on the omissions in the evidence of PW
No.11 driver only if they are proved through the police officer who
recorded his statement. The attention of the witness is drawn towards
certain improvements which he has made while giving evidence
“accused No.1 instructed the witness to remain in the vehicle” is one of
such improvement. “Satish Nayak – PW No.12 asked accused No.1 as
to where (place) victim was being taken” is another omission. “While
the victim talked to his wife on phone, the speaker was on” is another
omission. “Other companions of accused No.1 took the victim near the
wall and came after 10-15 minutes” is also omission. On this
background, the evidence of Police officer need to be seen. We have got
the evidence of PW-18 and PW-19. PW-18 does not say that he has
recorded the statement of any witnesses, whereas PW-19 did say so.
Defence has not put those omissions to PW-19. Hence, no comment
can be made on those omissions either in favour of the prosecution or
in favour of the accused.
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32 / 82 Cr.Apeal.1262.13.odt
44. Let us see omissions in the evidence of PW. N0. 12. It has
transpired that the reference of Sion circle, Chunabhatti, Powai has
come. There may not be specific reference of Chembur. It is in the
context of car being taken towards Chembur on the say of Accused
No.1. It is not material omission. Rajesh Keny (PW No.4) is one of the
person who was asked to arrange for money. When asked by PW No.12,
Rajesh Keny expressed difficulty to arrange for money. This was the
omission (difficulty to arrange for money) pointed out to PW-12. We
have read FIR Exhibit 86. Request made to witness Rajesh to arrange
for money is there but difficulty expressed by witness does not find
place. It is also not material omission.
45. Third omission is about "confirmation of receipt of Rs.5
lakhs by witness Madhav Anna" What is there in FIR is "witness Rajesh
Keny gave money to witness Madhav Nayak and Madhav Nayak gave it
to Basavraj in the office" So confirmation about receipt of money by
witness Madhav Anna is not there in the F.I.R. What we find material
portion about request to Madhav Anna is there. So improvement about
‘confirmation portion’ may occur in the evidence due to lapse of time.
46. Lastly, the omission is in respect of request made to wife
and brother-in-law to arrange for Rs.5 lakhs. It is correct that there are
numbers of incidents into entire episode about demand, difficulty of
witness to arrange. So such minor variations do occur. We have to see
overall impact of details given by the witness. So omissions are not of
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33 / 82 Cr.Apeal.1262.13.odt
such a kind which will persuade us to disbelieve PW No.12.
47. Even PW No.11 and 12 were cross-examined on the point
of earlier dispute of PW No.12 with accused No.1. PW No.12 admits
about a quarrel in between both of them. That took place before
September 2011. However, he has denied happening of repeated
quarrels in between both of them. He has never asked family members
of accused No.1 not to pass in front of his office. PW No.11 is not
aware about such quarrel. Even PW No.18 was aware about un-cordial
relationship in between PW No.12 and accused No.1.
DELAY IN LODGING A FIR
48. PW No.18 is the officer of Sion Police station who recorded
the FIR of PW No.12 on 3.9.2011. He registered the offence under
Section 363, 364A,386,506(2) read with Section 34 of IPC. He admits
that there was a delay of 10 hours in lodging a FIR. He has not
enquired with PW No.12 about any earlier report lodged about this
incident. There is emphasis on not placing on record the complaint
lodged by PW No.9 - Changayya on 3.9.2011 with Matunga Police
Station. It is true that same is not pointed out to us during arguments.
PW-9 was thoroughly cross-examined on this aspect. On reading his
evidence we can certainly find that he did visit the police station and his
statement seems to have been recorded at that time. However, about
compliance of the procedure (that is to say reading the complaint,
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34 / 82 Cr.Apeal.1262.13.odt
obtaining the signature) is concerned, he could not recollect those facts.
His conduct of approaching the police immediately after the incident is
a natural conduct. There is no reason to disbelieve him on this aspect.
If it is so why complaint has not been produced before the trial Court.
The time of his visit is 6.00 p.m. and he was there for two hours. It is
also true that the prosecution has not given any explanation for not
producing his complaint before the trial Court. “The Police wants to
embellish the facts and wants to distort the facts” is the reason suggested
for such non-production. Whether police want to exaggerate the story
in order to book the accused No.1 in a serious crime? As explanation
has not been given for this non-production it has handicapped the
Court from making any comments. On the basis of this available record
Court can only say that PW No.9 - Changayya did visit Matunga Police
Station on 3.9.2011 and police must have recorded his complaint but it
seems to be a lack of decision making on the part of the concerned
police personnel. That is to say to record it in either manner and then
to take some action. Except this we do not find any probable reason for
non-production. We do not find any other reason for non-production.
We say so because there are testimonies of more than five witnesses who
say that either money has been demanded, could not be arranged, was
arranged and delivered. So we are not inclined to accept the said
objection so as to discard the evidence of PW No.11 and 12. PW No.11
driver has not felt it necessary to go to police station after all returned
back from Powai whereas he went to Shirdi for dropping the passengers.
Probably he must be waiting for the action to be taken by his master
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35 / 82 Cr.Apeal.1262.13.odt
PW No.12. He had chosen to take the car as a part of his previous
commitment. So with certain defects and lacunae as mentioned above,
we do not find that there is any reason to disbelieve PW No.11 and 12
on the point of happening of the incident as narrated above. Just
because PW No.12 is having some previous quarrel it does not mean
that PW No.12 will concoct the incident and will file all together false
FIR. There is no delay. The incident took place at 8 am in the morning
and complaint was lodged at 9 pm. It is normal period for the victim to
come out of the trauma and then to take decision to lodge complaint. It
is particularly because he was threatened not to lodge the complaint.
EVIDENCE ON THE POINT OF ARRANGING MONEY AND
DELIVERY
49. On this point apart from the victim PW No.12 the
prosecution has examined inasmuch as five witnesses. Some of them
have expressed inability to arrange for the money and some of them
have participated in the arrangement and delivery of the money. The
trial Court has convicted accused No.5 for the offences punishable
under Sections 386 read with Section 120B of IPC and under Section
364 of IPC and also for the offence under MCOC Act. The role of
accused No.5 starts from the stage of visiting the office of PW No.12.
The entire transaction of abduction, extracting ransom and delivery of
the amount, different accused have played different roles. Ultimately, it
is a chain of events. One may not involve in all the acts but if it is a
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36 / 82 Cr.Apeal.1262.13.odt
chain of events ultimately resulting into accomplishment of goal.
50. Prior to the visit to the office of PW No.12 there are
different incidents that have happened. For that purpose, the evidence
of PW No.12 on one hand and evidence of PW No.1 to 5 on the other
hand are relevant. On reading their evidence, we can see as to how the
events have taken place.---
(a) For making arrangements PW No.12 made phone calls to PW
No.3 (Mahdav Nayak), PW No.4-Rajesh Keny and PW No.5
Shankar Anna. Out of that PW No.5 expressed inability to arrange
for the amount.
(b) PW No.12 instructed PW No.4 to deliver the amount to PW
No.3 Madhav. Accordingly, he delivered the amount of Rs.5 lakhs
consisting of currency notes of Rs.1000/- denomination.
(c) After discussion with PW No.12, PW No.3 Madhav called the
wife of PW No.12 and she had come to the office of PW No.3.
(d) PW No.2 Johny was told about the incident of kidnapping by
PW No.3 Madhav. Wife of PW No.12 was also present there and she
was crying. When PW No.4 Rajesh came there along with the
amount, this witness PW No.2 was present there. The amount was
brought in white colour bag. Witness Johny was asked to deliver the
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37 / 82 Cr.Apeal.1262.13.odt
bag in the office of PW No.12 at Sangeeta Travels. PW No.1
Basavraj used to work in the travel company of PW No.12. As usual
he reached the office on 3.9.2011. He was told by PW No.9 -
Changayya about the incident of kidnapping of PW No.12 by
accused Nos. 1 and 2.
(e) PW No.1 received a call on the landline that either Madhav Anna
or Johny would come with the amount and witness was instructed to
keep it there. PW No.12 also instructed him that either Ravi or Vilas
would come to office and amount be given to them.
(f) The amount of Rs.5 lakhs was delivered in the office to accused
No.5. It is the witness No.2 Johny who has delivered white colour
plastic bag to PW No.1. Prior to that accused No.5 arranged a
conversation in between witness No.1 and PW No.12. Employer
instructed the witness to handover the money.
51. In this manner an amount of Rs.5.00 lakhs is delivered to
accused No.5. It is also very well true that this entire amount is not
seized but only an amount of Rs. 64,420/-is seized. Certain questions
were asked to PW No.1 about his collection for PW No.12. It is true
that in order to show his relation as an employee there is no document.
It is also true that on his own he has not met police on 3.9.2011. Even
he has kept mum. After the incident of handing over the amount, the
office was open. PW No.1 was knowing accused No.5 two years prior
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38 / 82 Cr.Apeal.1262.13.odt
to the incident. Witness knows residence of accused no. 5 near their
office. Even witness knows the relationship between accused no. 1 and
no. 5 as nephew and uncle.
52. PW No.2 Johny has got a role of just handing over the
amount in the office of PW No.12. Except one improvement, his
evidence was not seriously challenged. PW No.3 Madhav has got a
major role. It is in his office, PW No.4 Rajesh delivered the amount to
PW No.2 Johny. This witness used to give cars on hire to PW No.12.
It is but natural that a person in need will demand the amount from
person who is known to him. He had sent the bundles. The mobile
used by him also belongs to PW No.12. He had given explanation as
the witness was not having address proof, mobile was obtained in the
name of PW No.12. Just like other witnesses, even he has not lodged
the complaint on his own. There are certain omissions in his evidence.
PW No.12 Satish Nayak informed him about kidnapping by accused
No.1 and others. This witness informed about the incident to wife of
PW No.12 and then she came to his office. These are the two
omissions. But the officer who recorded the statement is not examined.
53. PW No.4-Rajesh is the person who has arranged for the
money. This witness has not shown this amount in the income-tax
returns. Satish Nayak has also returned the amount to the witness.
There is no document in respect of both the transactions. He has not
withdrawn the amount from the Bank. His net monthly salary was
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39 / 82 Cr.Apeal.1262.13.odt
Rs.20,000-22,000. These questions were put in order to challenge the
financial capability of witness to raise that amount. He has raised it
from his family income.
54. Question arises why four witnesses (other than PW No.1
because he is employee of PW No.12) will give false evidence so as to
help PW No.12. It is true that they are in the same business but for
giving evidence in the Court you need to have that courage. You can
give evidence only when the incident had taken place or when someone
nd
wants to favour any person. We do not think that 2 possibility will be
there. It is for the reason that it is difficult for a person to arrange for
four witnesses to come and depose in his favour. It is true that there is
no documentary evidence about this 5 lakhss but considering the
circumstances in which the amount was required, it will also be difficult
to prepare a document of the amount.
55. It is pertinent to note that after delivery of the amount PW
No.12 was released. So from the above evidence it is clear that
prosecution has proved delivery of the ransom amount of Rs.5 lakhs.
CONCLUSION:-
56. From the above conclusion it is clear that PW No.12 was
forced to sit in a car and was taken to Powai. Chopper was used by the
accused No.1. A demand of Rs.5 lakhs was made by accused No.1. It
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40 / 82 Cr.Apeal.1262.13.odt
was also fulfilled so the ingredients of the offence under Section 386
and 364-A of IPC are fulfilled.
IDENTIFICATION OF ACCUSED NOS.1 TO 5
57. It is the accused Nos.2,3 and 4 only who have accompanied
the accused No.1. For that purpose their identification in the parade is
important. For that purpose the evidence of Tehsildar Deepak Jadhav –
PW No.8 is relevant. PW No.8 conducted the test identification
parade on 30.9.2011 at Arthur road jail. From the evidence and
documents created by him at that time, it reveals that following accused
were identified:-

58. The evidence of concerned investigating officer PW No.19
Shri Nikam and evidence of the concerned identifying witnesses need
to be considered. PW No.19 admits that accused No. 3 Abhijeet &
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No.4 Mangesh were not named in the FIR. He also admits that name
of accused No.6 Ravi Shinde is not there in the FIR (it is not concerned
because he is acquitted accused). Accused No.5 Vilas is the uncle of
Accused No.1 Ganesh (as told by PW No.18 (Para No.20). Whereas
accused No.1 Ganesh and Accused No.2 were identified by PW No.12
and other witnesses in the police station (para 10 of his evidence). This
identification will neither damage the prosecution case nor will help the
accused in any manner. The reason is the Complainant-PW No.12 and
some of the witnesses were knowing both the accused earlier to the
incident. This fact has not been disputed.
59. PW No.12 was called in the jail for the parade 20-25 days
after the incident. He has explained the events that took place inside
the jail. He has identified accused No.3 Abhijeet and No.4 Mangesh
whereas he has identified accused Nos.1 and 2 in the police station. He
has explained how he knows accused No.1 Ganya (being in the black
marketing of cinema tickets) and accused No.2 also in the same
business. He met the Tahsildar inside the jail in between 11 to 11.30
a.m. This timing tallies more or less with the timing mentioned in the
identification memorandum. From his cross-examination it cannot be
inferred that the process of identification is affected by any of the
external factors like presence of police.
60. Even PW No.11 was knowing accused No.1 Ganesh 4-5
years earlier to the incident. He has said about identifying accused
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42 / 82 Cr.Apeal.1262.13.odt
No.3 Abhijit and No.4 Mangesh. Even he has explained who was the
boy who boarded the car near Powai Jhopadpatti, it was accused No.3
Abhijeet. Whereas accused No.4 Mangesh alighted form the car along
with accused No.1-Ganesh. He has said about identifying accused
No.3 Abhijit and No.4 Mangesh, 4 to 5 years earlier to the incident.,
Even he has explained who the boy who boarded the car near Powai
jhopadpatti. It was accused No.3 Abhijit. Whereas accused No.4
Mangesh alighted from the car along with accused No.1 Ganesh at
Kanjurmarg. There is nothing in the cross-examination which
challenges identification of accused Nos. 3 and 4.
61. Whereas PW No.1 Basavraj is the witness who had
occasion to see only that accused who has collected the ransom money.
Even though he was knowing accused No.1 earlier to the incident, he
was not knowing accused No.5 Vilas. He was not shown any
photograph by the police earlier. Even no attempt was made to identify
any of the accused on the basis of voice identification. During
evidence before the Court he has correctly said about identifying
accused No.5 Vilas as the person to whom he had handed over the
amount.
62. PW No.8 was thoroughly cross-examined on the point of
the identification as well as on the point of complying with the
procedure. While conducting the parade he has taken the seal from the
godown keeper. He has not done that. He has not mentioned the
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names and the ages of the dummies in the memorandum panchnama.
Though he has not taken a rough note, 6 charts were prepared by him
in the room only. The judicial room inside the jail and parade room are
different. He is not aware about the guidelines comprised in the High
Court criminal manual about conducting the parade. His chief
examination is in detail. We do not find that there are substantial
lacunae in the procedure adopted by him.
63. From the above discussion it is clear that it is the accused
No.5 Vilas who had gone to the office of PW No.12 for collecting the
amount and he did collect the amount from PW No.1. Witness was
knowing accused no. 5 earlier to the incident. As such identification in
the parade is not essential. whereas it is also clear from the evidence of
PW No.11 and 12 that accused Nos. 3 and 4 were the persons rightly
identified by those two witnesses. The evidence of PW No.11 about
identifying accused No.3 Abhijit as the person who boarded the car at
Powai is consistent with the prosecution story. Only variance he has
made is about alighting from the car. It was not accused No.3 Abhijit
(as per the prosecution case) but it was accused No.4 Mangesh. This
variance is not of that extent which creates doubt about the
involvement of accused Nos. 3 and 4 as the associates of Accused Nos.
1 & 2. Witness No.12 was knowing Accused Nos. 1 and 2 earlier to the
incident. There was no need for identification even at the police
station. Trial Court has commented on this evidence in para 64 – 68 of
the judgment. We agree to those findings.
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44 / 82 Cr.Apeal.1262.13.odt
RECOVERY/SEIZURE:-
64. The concerned officer is PW No.19-API Nikam attached to
Crime Branch. He deposed that following articles/cash is seized during
investigation from following accused:-

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45 / 82 Cr.Apeal.1262.13.odt
FOLLOWING ARE THE PANCHAS EXAMINED

Even though cash amount is seized as mentioned above, it is difficult to
believe that the cash amount consist of the same currency notes which
were handed over to accused No.5 Vilas by PW No.1 and it is the same
currency notes which were collected by witness Rajesh Keny (PW
No.4) and handed over to PW. No. 2 and in turn he delivered it to PW
No. 1. Though it has come in the evidence that the ransom amount
consist of currency notes of Rs.500/-/Rs. 1,000/- denomination, we do
not think that only that description is sufficient to connect it to the
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46 / 82 Cr.Apeal.1262.13.odt
seized cash amount. Trial Court has believed that part of evidence
which relates discovery of cash amount at the instance of accused. We
declined to consider recovery of cash amount as the amount given as a
ransom. Hence we have not commented on the evidence of relevant
panch and seizure police officer. So far as recovery of revolver and
cartridges is concerned, it is no one’s case that they were used in either
way in commission of the offence. Trial Court observed that they were
not produced because there were no the muddemal in this case. (Para
61). Admittedly charge-sheet is not filed against Accused 1 for the
offence punishable under Section 3 read with S.25 of Arms Act before
the trial Court
65. Accused No.1 has taken bold defence and he tried to
explain that an amount of Rs. 15,000/- was paid to police officer Shri
Ture by his sister Mrs Laxmi Malve. She gave evidence in favour of her
brother. Accused No.1 also examined Jeweler Shri Chandrashekhar
Mehta. He did admit about dealings with Smt Laxmi Malve. But
witness has forgotten about pledging of Mangalustra by witness Smt
Malve. Trial Court disbelieved explanation for payment of Rs. 15,000/-
to Police Shri Ture (Para 7 & 7a). We agree to this conclusion. It is
nowhere case of defence that this amount was utilized and shown as
recovered at the instance of all. In fact witnesses Smt Malve has said
that it was given so as not to arrest her and her husband.
66. So far as recovery of chopper is concerned, it has come in
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47 / 82 Cr.Apeal.1262.13.odt
the evidence of PW No.11, 12 and 9 that accused No.1 threatened PW
No.12 by showing a chopper whereas chopper is seized not from
accused No.1 but from accused No.2. It need not be a necessity that
the weapon used ought to be seized from the person who has used it.
There is sufficient evidence of the eye witness to believe that PW
No.12 was terrorized by use of chopper on more than one occasion.
67. Trial Court convicted Accused 1 and Accused 2 accused for
the offence under Section 4 read with Section 25 of the Arms Act. Trial
Court believed evidence on the point of seizure of chopper at the
instance of accused no. 2 (Para-59). We do not find any reasoning for
convicting Accused 1 and Accused 2 for this offence.
68. Probably possession of chopper on 03/09/2011 by Accused
1 and Accused 2 (date of offence)and accused 1 and by accused 2 on
09/10/2011 (date of seizure) must have weighed the mind of the trial
Court. We disagree with this finding. First of all the police have not
mentioned Section 4 read with Section 25 of the Arms Act in the
charge-sheet what they have mentioned is recovery of chopper from
Accused 2 and hence under Section 37 of the Bombay Police Act.
However, the trial Court has not framed the charge under Bombay
Police Act but under Arms Act. No doubt trial Court can do it but by
giving reasons and on the basis of materials.
69. Secondly while convicting the accused No.1 and 2 under
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Section 4 read with Section 25 of the Arms Act, the trial Court over
looked the provisions of Section 4 of the Arms Act. Possession of
certain arms is prohibited only when notification is issued. No one has
pointed out any notification barring possession of certain arms. Hence
the conviction is bad-in-law and need to be set aside.
70. Thirdly what is adduced in evidence through PW 19 is the
notification published in the gazette at Exhibit 119 and extract of
station diary entry at Exhibit No. 119. It is the notification issue under
Section 37 of Bombay Police Act and entry suggest its publication
contemplated under Section 167 of the Bombay Police Act. In fact trial
Court has over looked this evidence. For above reasons we have no
alternative to set aside conviction of Accused 1 and Accused 2 under
Section 4 read with 25 of Arms Act. We answer point no. 4 in the
negative
EVIDENCE ON THE POINT OF ASSAULT.
71. There is charge only against accused No.1 for the offence
under Section 323 of the Indian Penal Code, whereas trial Court
observed that accused Nos. 1 to 4 have assaulted PW-12 (Para-58).
However, trial Court convicted only accused No.1. In this background,
let us see the evidence. For this offence, simple hurt is sufficient. There
need not be any injury. PW No.17 Dr. Ghuge attached to Sion hospital
is the concerned Medical Officer who has examined PW No.12 on
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04.09.2011. There was no external injury. Witness has complained of
low backache. X-ray of chest is advised. The register and certificate
issued by him is duly proved through him at Exhibit 102 and 103. In
the register brought by him date is not mentioned before patient Satish
Nayak. It is true to say that the victim PW No.12 was assaulted by
accused No.1 Ganesh after sitting in the car and was thrashed near the
wall by companions of accused No.1. Though it is proved by the
prosecution that accused Nos.2 to 4 were his companions where all
have thrashed him or any of them is not clear. Who has thrashed him is
not clear. So we have to accept only the involvement of accused No.1
in that assault. Trial Court has not invoked Section 34 of the Indian
Penal Code. We do not want to convict accused Nos.2 to 4 for the
offence punishable under Section 323 of the Indian Penal Code.
EVIDENCE ON THE POINT OF CALL DETAILS REPORT (CDR)
72. Learned advocate Ms. Apeksha Vora relied upon judgment
2
in the case of Babubhai Bhimabhai Bokhiria v/s. State of Gujarat it is
on the point of evidenciary value of Call Details Report particularly
when content of conversation is not brought on record (para-21). This
was a judgment delivered wherein order issued under Section 319 of the
Criminal Procedure Code was challenged. It was set aside by the
Hon’ble Supreme Court. One of the material relied upon was
conversation between original accused and newly added accused. It was
2
(2014) 5 SCC 568
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50 / 82 Cr.Apeal.1262.13.odt
not accepted for the reason that contents of conversation was not there.
(para 21). In an issue before us full fledged trial has been completed
and trial Court has dealt with the complicity of each of the accused
depending upon the evidence adduced and role played by each of the
appellant. It is true that in this case also there are C.DR’s and not
contents of conversation. So except interaction we can not draw any
inference about actual words of communication.
73. It is true that on the basis of call details report, one may
understand amongst whom there is a conversation. That is to say the
mobile number of caller and mobile number of called party. CDR does
not suggest what type of conversation took place. No doubt evidence
by way of CDR is corroborative piece of evidence. This evidence is
generated through use of computers and data connectivity. It is also
true that there are various parameters to be followed before accepting
the evidence of CDR. It is a kind of electronic evidence falling within
category of documentary evidence. Generally, Nodal Officers
appointed by service providers used to give evidence before the Court.
The CDR generated by their computer system has to be supported by a
certificate contemplated under Section 64B of the Evidence Act. Two
Nodal Officers PW No.7 and PW No.10 were examined. The details
are as follows:

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51 / 82 Cr.Apeal.1262.13.odt

It is true that during the evidence of eye witnesses, it has come in
evidence that the mobile handset of PW No.11 and 12 were snatched
and were again handed over to them after temporary use after calling is
over. It is also true that mobile handset is seized from the personal
search of accused No.4 Mangesh and as per the Memorandum of
Statement of accused No.1 Ganesh. It is also true that there is
telephonic communication in between PW No.10 on one hand and PW
No.1 to 5 on the other hand (about arrangement of money) but the Call
Details Report of PW No.2 to 5 are not tendered in evidence so it will
be difficult to ascertain as to whether mobile numbers of PW No.2 to 5
are appearing in CDR of PW No.12 produced by PW No.10.
74. It is also true that even though the subscriber of the mobile
phone is one person, it can be used authorisedly or un-authorisedly by
possessor of that mobile phone. So when CDRs are produced in
evidence, it will always be difficult to show that the caller/receiver of
such mobile handset will always be the subscriber. The relationship in
between subscriber Laxmi Dhondiram Nichite (of MTS company) and
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52 / 82 Cr.Apeal.1262.13.odt
accused No.2 is not disputed. From the evidence of PW No.7 we can
certainly infer that said Laxmi is the owner of mobile number
8433471719. At the sametime, we can also infer that Cell No.
9892369469 of Airtel Company belongs to PW No.12.
75. So we have to see from the CDR produced by PW No.7
and those produced by PW No.10 that whether it corroborates the
conversation in between PW No.12 on one hand and P.W.1 to 5 on the
otherhand .
76. From the evidence of PW Nos. 1 to 5, following details of
telephone numbers is revealed:-

In order to ascertain whether these numbers reflect in the CDR of
PW-12 (Exhibit No.80) we can see above numbers (on Page 295). It
shows conversion took place on 3/9/2011 in between possessors of
these numbers. Trial Court has appreciated this evidence and given
findings to that effect (Para-43). We agree to the same. We are not
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53 / 82 Cr.Apeal.1262.13.odt
considering the finding about conversion in between Accused 2 and
Accused 6 (Para 42). Because accused No.6 is acquitted and there is no
appeal by the State Government.
CONCLUSION
77. On the basis of above discussion there is a reason to believe
that accused No.1 compelled PW No.12 to sit in the car and PW No.12
was forced to move from his office in the car (which he could not have
done but for the terror). We can also believe that accused Nos.2 and 4
have accompanied accused No.1 since beginning. We can also believe
that accused No.3 also joined in their plan by boarding the car and
assisted accused Nos.1, 2 and 4. We can also believe that accused No.1
with the help of accused Nos.2 to 4 have compelled the PW No.12 to
part away the money of Rs.5 lakhs. Because he was sure that unless and
until the money is parted away, it will be difficult for him to get his
release. The money is certainly towards ransom. We can also believe
that the accused who has accepted Rs.5 lakhs from PW No.1 is none
other than accused No.5. Merely because Rs.5 lakhs in total were not
recovered, it does not mean that Rs.5/- lakhs was not parted away. So
accused No.5 has also helped other accused in accomplishing their task.
78. The trial Court has convicted accused Nos.1 to 5 for the
offence under Section 386 read with 120 B of IPC and convicted all of
them for the offence simplicitor under Section 364 of IPC. The
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54 / 82 Cr.Apeal.1262.13.odt
conclusion of the trial Court about guilt of these accused cannot be
faulted. But so far as applicability of Section 120 B of IPC is concerned,
we differ with the findings of the trial Court. There has to be some
concrete evidence about hatching of criminal conspiracy. It may be in
the form of some meeting, telephonic interaction, exchange of
documents, any third person hearing the conversation and so on. We
do not find such evidence adduced on behalf of the prosecution. What
is adduced in evidence is about involvement of accused Nos.1 to 5 and
their participation on the date of incident. Merely on that basis one
cannot infer about hatching of criminal conspiracy.
79. So what we feel is that the accused Nos.1 to 5 need to be
held guilty for the offence of 386 of IPC on the basis of application of
section 34 (common intention) of the Indian Penal Code. There is also
a charge framed by applying s. 34 of IPC. So question of prejudice will
not arise. The reason is from the conduct of each of the accused Nos. 1
to 5 we can infer that their common intention was to kidnap PW
No.12 and that too for the purpose of extracting ransom amount from
him. It is no doubt true that every accused has played not a similar but
different role. It is but natural. Accused No.3 who has boarded the car
at a subsequent stage, it does not mean that he was not having the
intention to kidnap and extract ransom amount. He has not explained
why he has boarded the car and continued even at the time when PW
No.12 was thrashed towards the wall. So by invocation of section 34 of
the IPC, he is equally liable for the offence. At the same time, accused
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55 / 82 Cr.Apeal.1262.13.odt
No.5 by performing his part of accepting the ransom amount has
shared the common intention of kidnapping and extracting the ransom
amount. So accused Nos.1 to 5 are liable for commission of the offence
under section 386 read with 34 of the IPC. Already trial Court has
framed the charge for the offence under Section 386 read with 34 of
the Indian Penal Code. Even trial Court has opined about sharing a
common intention (Para 53).
80. We do not understand while holding the accused Nos.1 to
5 guilty for the offence of Section 364 IPC why the trial court has not
invoked the principle of constructive liability (either in the form of
section 120 B or in the form of section 34 of IPC). We do not find
application of any of the section of constructive liability They have
been convicted simplicitor for the offence under section 364 of the
IPC. The trial Court has said about sharing of common intention. But
while holding them guilty accidentally forgotten to refer to Section 34
of the Indian Penal Code. When the trial court is satisfied about ‘
sharing of intention by the accused no. 1 to 5 ‘ we do not think that
omission to mention section 34 of IPC will lead to any illegality. We are
fortified in our view on the basis of observation of Hon’ble Supreme
3
Court in case of Narinder Singh V/s State of Punjab .
81. Question remains when the prosecution has adduced bulky
evidence on the point of ‘ demand and fulfillment of ransom’ trial court
3
(2000) 4 SCC 603
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56 / 82 Cr.Apeal.1262.13.odt
has not expressed any comment on the motive for adduction. We do
agree that some time both the motives (that is for committing murder
or for extracting ransom ) intermingled with each other. Some time
there is demand of ransom and murder too when the demand is not
fulfilled. Some time there is only abduction for the purpose of murder.
And some time abduction is only for the purpose of extracting ransom.
It is also true that actual commission of murder is not essential of
section 364 of IPC. What the section says ‘abduction is there with the
intention of committing murder’.
It will be relevant to consider the observation of the trial court in
that behalf. While commenting on quantum of sentence, trial Court
observed
“ Accused 1 perhaps would have killed him, had his demand of
ransom not fulfilled”.
This is the possibility expressed by the trial court. There is a thin line in
between creating terror by showing weapon for extracting ransom and
abducting for committing murder and then demanding ransom.
82. When we personally have perused the evidence from this
view point, we find certain references in the evidence PW. No.
12/victim throwing some light on what could have been the intention
of abductors. They are as follows –
a) on first refusal to sit in the car, accused Ganesh Shinde
threatened me by taking out a chopper from his pocket (para no.
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57 / 82 Cr.Apeal.1262.13.odt
3).
b) Ganesh Shinde also brandished the chopper to me and forced me
to sit in the car (para no. 3).
c)
Ganya Shinde asked his companions by saying “yala jara garam
karun aana” (para no. 5).
d) when the victim was thrashed near the wall by the companions of
accused no.1, he asked them to inform Ganya Shinde that victim
will arrange for the amount. Victim also asked them not to kill
him (para no. 5).
e) while on return, Ganya Shinde asked victim not to lodge the
complaint otherwise he would kill me (para no 5).
83. If we consider all these events and utterances, we can very
well say that the accused no. 1 by his conduct and utterances have
sufficiently indicated that he might kill the victim is his demand is
fulfilled. In that sense of the matter we agree with the trial court.
Though the trial court has not enumerated the above events, they are
part of evidence. So we agree with the finding of the trial court about
commission of offence under section 364 of IPC.
84. We do agree that the charge can be altered at any stage prior
to pronouncing the judgment. The appellate court is having the same
power as that of trial court. It is true that the prosecution has also
adduced evidence on the point of ransom. But in this case we are not
inclined to alter charge under section 364-A of IPC now. It is for the
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58 / 82 Cr.Apeal.1262.13.odt
reason knowingly prosecution took part in the trial when charge was
framed only under section 364 IPC and not under section 364-A IPC.
It was not shown to us from the record that at any time the prosecution
requested the court about this fact. Even before this court this prayer is
not made on behalf of the prosecution. What we feel is that now right is
created in favour of the accused to go on with the matter as per the
record as it stands.
85. There is one more reason for this view. Offence under
section 364-A IPC is more serious that offence under section 364 IPC.
There is death penalty as a maximum punishment for earlier offence
where as maximum punishment for later offence is life imprisonment.
So even if some of the ingredients of both the sections are similar, in
certain respects there is a difference.
86. So there cannot be a conviction under section 364-A of IPC
unless there is a charge. Some what similar question arose before
Hon’ble Supreme Court in case of Anil Alias Raju Namdev Patil V/s
4
Administration of Daman and Diu. There was charge for the offences
under section 364, 302, 201 read with 34 of IPC. Whereas the
appellant was convicted under section 364-A of IPC. It was argued that
in fact evidence was adduced on the point of demand of ransom and
hence no prejudice is caused. However Hon’ble Supreme Court refused
to maintain conviction under section 364-A of IPC and instead
4
(2006) 13 SCC 36
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59 / 82 Cr.Apeal.1262.13.odt
convicted under section 364 IPC. In para no. 55 there is discussion on
difference in between these two sections.
87. In case before us charge is framed under section 364 IPC.
And evidence is adduced on the point of ransom. But there is no
conviction under section 364-A of IPC. So what we can gather is that
unless there is charge framed under section 364-A of IPC, we cannot
deal with the case. We are also not inclined to remand the matter back
to the trial court for framing of charge and conduct of the trial for that
offence. The reason is since 2012 the case is pending and 9 years have
elapsed. If that option is exercised, it will take few more years to
complete the trial. We think it will violate the principles of speedy trial.
Hence we have preferred not to adopt that line of action. These
observations are on the basis of facts of this case and we do not want to
pay down any law.
88. So we feel that offence is proved against accused no. 1 to 5
under section 386, 364 read with section 34 of IPC.
89. So also we do not find any reason to disagree with the trial
Court about holding accused No.1 guilty for the offence punishable
under Section 323 of IPC.
Hence, we answer Point Nos. 2 and 3 in the affirmative.
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POINT NOS.5 AND 7.
INVOCATION OF MCOC ACT :-
90. The appellants No.1 to 5 were convicted for the offence
punishable under Section 3(1)(ii) and under Section 3(4) of the
MCOC Act. The findings of the trial court are challenged mainly on
following grounds –
a)
The ingredients of Section 2 and 3 of the said Act are not
fulfilled.
b)
Evidence on the point of previous charge sheets does not fit in to
the requisites of the section 2(d) of the said Act.
c)
The approval and sanction has been granted mechanically.
INGREDIENTS OF ORGANIZED CRIME
91. The basic ingredient for application of this Act is
committing organized crime. Section 3(1)(ii) of the said Act is
applicable when organized crime results into an offence which is other
than murder. In this case as offence under section 386 and 364 read
with S. 34 of IPC are committed, provisions of section 3(1)(ii) of the
said Act are attracted.
92. The intention for enacting this Act is to prevent and control
the organized crime. The provisions of the said Act are stringent in
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61 / 82 Cr.Apeal.1262.13.odt
nature. So emphasis of the court is to insist on strict compliance of the
provisions of the Act. Substantive provisions and procedural provisions
need to be strictly complied with.
SUBSTANTIVE PROVISIONS
93. On reading the provisions of Section 2 and 3 of the said
Act, we can summarise the following ingredients –
a) Commission of an organized crime by organized crime
syndicate,
b) organized crime is continuing unlawful activity carried
out --
i. by use of violence/threat/coercion etc.
ii. object must be to gain pecuniary benefit/ undue
economic advantage etc.
c) activity becomes continuing unlawful activity when–
i. such activity is prohibited by law,
ii. activity must disclose cognizable offence having
punishment of 3 years or more,
iii. undertaken in respect of which more than one
chargesheets have been filed,
iv. within preceding 10 years,
v. competent court has taken cognizance.
94. In nutshell, this Act takes into account previous unlawful
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activities and also present unlawful activities. Only when connection is
established in between these two activities, it is said that an organized
crime is committed. It means earlier there were two chargesheets of
requisite parameters and when third activity is committed on behalf of
organized crime syndicate, then the provisions of this Act is attracted.
FACTS OF THIS CASE
95. If we consider them in the light of evidence before us, we
can very well say that the accused Nos.1 to 5 have certainly used the
violence and also threatened the PW No.12 to part away the money.
Even the victim was threatened to be killed. Compelling the
Complainant to sit in the car by showing a chopper cannot certainly be
said to be a voluntary act. The victim need not always protest to the
said act by physical act as it has come in evidence that the act of
abduction is for getting the ransom amount and it is certainly for
gaining pecuniary benefits. And for pressurizing the victim to fulfill the
demand there were threats of killing.
96. No doubt it is true that in previous chargesheets at Exhibit
116 and 117, accused Nos.2 to 5 have not been named as accused
persons. They are only against accused No.1. The law is now well
settled. There is no need to have a previous chargesheet against other
accused persons. It is sufficient if previous chargesheets are against the
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63 / 82 Cr.Apeal.1262.13.odt
one person who is chargesheeted under the said act. So the requirement
is satisfied. We agree with the trial Court. This is the interpretation
given by Division Bench of this Court in the case of Govind Sakharam
5
Ubey v/s. State of Maharashtra as rightly relied upon by learned APP.
97. The observations in case of Gopal Pandey are on the basis
of facts of that case. The trial Court has discharged the accused under
the provisions of MCOC Act and directed him to be tried as per the
ordinary law. The order of discharge was challenged before Division
Bench of this Court. While perusing the materials about previous
charge-sheets, the Division Bench of this Court agreed with the trial
Court observations. The activity denoted in previous chargehseets was
held not with object of gaining pecuniary benefit or undue advantage.
In that case first chargesheet involved an offence of assault. Whereas
second chargesheet was robbery but it has happened on account of
some minor incident. And third chargesheet relates to assault on
account heated exchange of words. Ultimately, it depends upon facts of
each case. These are not the facts before us.
PREVIOUS CHARGESHEETS
98. PW. No. 19 API Nikam collected copies of chargesheets
and they were tendered in evidence. When we have perused the charge
sheets at Exhibit 116 and 117, the following facts emerges:-
5
Criminal Appeal No.18/2009
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64 / 82 Cr.Apeal.1262.13.odt
(a) Exhibit 116 is the chargesheet filed by Sion police station in
respect of an offence punishable under Section 363,384,324,506(2)
read with 34 of the IPC. It is the certified copy having the seal of
Metropolitan Magistrate, Mumbai which is accompanied by copy of
FIR filed by one Kuldeep Singh. It also bears the signature of Senior
Police Inspector, Sion Police Station dated 08.12.2009. It is filed
against accused No.1 and his associates.
(b) Exhibit 117 is the certified copy of a chargesheet filed by
Sion Police station for the offences punishable under Section
363,386,387,323 read with Section 34 of the IPC. Certified copy is
issued by the Court of Metropolitan Magistrate, Mumbai. It bears
the signature of Sr. Police Inspector dated 1.12.2008. It is filed
against the accused No.1 and his associates. The Court Case No. is
111/PW/09.
99. It is true that the word taking cognizance is used in MCOC
Act at 2 places. One is while explaining the meaning of “continuing
unlawful activity in Section 2(i) (d) of the said Act. Taking cognizance
by the concerned Court is one of the pre-requisite for invocation of
MCOC Act. Secondly, the word taking cognizance has been used in
Section 23 of the said Act. Unless the previous sanction is obtained,
Special Court cannot take cognizance as contemplated under Section
23(2) of the said Act. It is true that though the phrase has been used
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65 / 82 Cr.Apeal.1262.13.odt
the phrase taking cognizance is not defined under the said Act. So we
have to consider the meaning given in Section 190 of the Criminal
Procedure Code. It lays down the 3 manners in which the Magistrate
can take cognizance. However, the word taking cognizance is not
defined there also. We have to understood its meaning by referring to
the interpretation given by the Courts. In a case of Madan Ram K.
6
Ganwani v/s. State of Maharashtra delivered by Nagpur Bench of this
Court, the phrase “taking cognizance” has been interpreted in the
context of the provisions of this Act. This Court has dealt with the
appeal against conviction involving the provisions of this Act. The
issue raised was whether there is a need to examine the witnesses in
proof of the past crime (in respect of which previous charge-sheet has
been relied upon). It has been answered in the negative. (Para-52)
When there is a proof of filing of two chargesheets, it was held sufficient
if copies of those two chargesheets were filed (there is no need to carry
out investigation about the offences involved in those charge sheets)
(Para -115). This Court has excluded the crime in respect of which
cognizance was not shown to have been taken (para-17).
100. While giving judgment Nagpur Bench has referred to the
observations of the Hon’ble Supreme Court in case of S.K.Sinha, Chief
7
Enforcement Officer v/s. Videocon Internarnational Ltd. . That was a
case involving the interpretation of Foreign Exchange Management
Act. There was an argument to the effect taking cognizance means
6
Criminal Appeal No.308/2002
7
2008(2) SCC 492
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66 / 82 Cr.Apeal.1262.13.odt
issuing process. It has been held that “issuance of process cannot be
equated with taking cognizance when used with reference to Court or
Judge”. Cognizance connotes to take notice judicially. Issuing a process
is sequel to taking cognizance.
101. Recently Hon’ble Supreme Court had occasion to interpret
the phrase taking of cognizance in the context of the said Act. It is in
8
case of Prasad Purohit v/s. State of Maharashtra . The previous
chargesheets must have been filed within preceding 10 years period. In
that case there was a bomb blast at Malegaon and the previous
chargesheets filed in respect of Parbani bomb blast and Jalna bomb blast
were relied upon. In those two earlier incidents there was original
chargesheet as well as supplementary chargesheet. Point raised was
whether the period is to be computed from the date of first chargesheet
or supplementary chargesheet. The accused calculated the period from
the date of supplementary chargesheet and accordingly contended that
the provisions of the said Act cannot be invoked when the 3rd incident
at Malegaon took place. Even though there was no time gap of 10 years
from the date of earlier supplementary chargesheets, the objection was
turned down. It was held that Court takes cognizance of an offence
and not of an offender. Mean to say it is to be presumed that the Court
has taken cognizance when the original chargesheets were filed in
respect of earlier two bomb blasts. Once a report is filed under Section
190 (1)(b) of the Code of Criminal Procedure by the Police, it is held
8
2015(7) SCC 440
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67 / 82 Cr.Apeal.1262.13.odt
that requirement of the taking cognizance gets fulfilled at that very
moment.
102. So if we consider the interpretation mentioned above to the
facts before us, we hold that requirement of taking cognizance in two
previous chargesheets is fulfilled. It is true that once the chargesheet is
filed in the format prescribed by Section 173 of the Code of Criminal
Procedure, concerned Court used to pass different orders. It depends
upon the situation prevailing at that time. If the accused is in jail, he
needs to be produced and hence production warrant is issued whereas if
the accused is not in jail, the order of issuing process against the accused
mentioning the sections of the Act is generally passed. There is a
practice followed in trial Courts to give the Court case number to that
chargesheet. It depends upon the gravity of the offence.
103. It is true that report under Section 173 is submitted only
when involvement of the accused is disclosed. From Exhibit 116 it is
not clear whether chargesheet is given Court Case number. But the fact
remains and it is a certified copy issued by the concerned Court of
Metropolitan Magistrate. Court Case number remained to be
mentioned on Exhibit 116 by the concerned Court staff. Whereas at
Exhibit 117 we can find the Court Case number. It is also true that in
both these exhibits, order passed by the Metropolitan Magistrate is not
shown to us. Does it mean to say that we should opine that
requirement of taking cognizance has not been fulfilled. The answer is
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68 / 82 Cr.Apeal.1262.13.odt
‘No’. It is also true that as the consequences of the said Act are drastic,
the adherence to the procedure also needs to be strict. There is one
more angle to this. We can find the certified copy of two chargesheets.
We can also notice the seal of the Court of Metropolitan Magistrate.
Unless and until the case is numbered (after taking cognizance only)
certified copy can not be issued. It may also happen that the order of
taking cognizance might have been passed on a separate paper by the
concerned Metropolitan Magistrate but what we find is that police have
not obtained the certified copy of that order or else the concerned staff
of the Metropolitan Magistrate, the Court has not issued any certified
copy. We find it as an error of understanding. We do not find it as a
lacuna so as to disagree about fulfillment of requirement of two
chargesheets. The objection taken in that behalf is turned down.
GRANT OF APPROVAL AND SANCTION
104. The law on all these issues is well settled. It is very well true
that if basic ingredients are fulfilled, there need to be a grant of approval
by the competent police officer as contemplated under Section 23(1)(a)
of the MCOC Act. So also Special Court can take cognizance only on
grant of sanction by competent police officer as contemplated in
Section 23(ii) of the said Act.
105. There is an emphasis on behalf of the appellants about
wrong invocation of the provisions of the said Act and not fulfilling the
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69 / 82 Cr.Apeal.1262.13.odt
requirements of the said Act. There is also challenge to the grant of
approval and sanction by competent police officers, particularly without
application of the mind. For that purpose, the conviction under the
said Act is challenged.
106. Learned Advocate Shri Kuldeep Patil has strenuously
argued about the non-adherence to the provisions of Section 23 (1)(a)
and 23(2) of the said Act. According to him the approval authority
Shri Himanshu Roy, Joint CP and the sanctioning authority PW No.13
Arun Patnaik, Commissioner of Police were not been given all the
concerned materials and that is why it cannot be said that they have
applied the mind properly. According to him there were also several
defects in the wordings of the approval at Exhibit 118 and the sanction
at Exhibit 88 dt.1.12.2011. In support of his contentions he relied upon
the following judgments:-
9
1) CBI v/s. Ashok Kumar Aggarwal
10
2) State of Maharashtra v/s.Jagan Gagan Singh Nepali
3) Dinesh Kumar v/s. The Chairman, Airport Authority of
11
India
107. Whereas learned advocate Ms. Vora relied upon the
judgment in the case of State of Maharashtra v/s. Gopal Sadhusharan
12
& ors . (it is on the point of not mentioning the details of the previous
9
2014(14) Vol. Supreme Court Cases 295
10
2011 ALL MR (Cr.) 2961
11
2012 (1) SCC 532
12
2018 ALL MR (Cr.) 4235
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70 / 82 Cr.Apeal.1262.13.odt
chargesheets in the sanction order).
108. These issues were also raised before the trial Court. On
going through the evidence of the sanctioning authority PW No.13
Arun Patnaik and on going through the evidence of PW No.19- API
Nikam, the trial Court opined that PW No.13 has applied the mind
properly (para-73 and para-76). So also PW No.19 has deposed about
grant of approval dt.24.10.2011 by joint Commissioner of Police,
Mumbai and then investigation was transferred to ACP, Digambar Kale.
109. In case of Ashok Kumar Aggarwal, Hon’ble Supreme Court
has commented on the duties of the sanctioning authority, error
omission in the procedure and the sanction, what prejudice is caused to
the accused. In that case there is a question about interpretation of
Section 19 of Prevention of Corruption Act. It is true that there is
emphasis on placing the entire material before the sanctioning authority
and perusing entire material by the authority in order to arrive at the
decision whether to grant sanction or not? Even if there is any defect in
this procedure and in the sanction order, the Court has to ascertain
itself is there any failure of justice. In Para No.19 it has been observed
that :-
“the prejudice has to be in relation to investigation or trial and not
matters falling beyond their scope.”
110. The case of Dinesh Kumar was also the case arising out of
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71 / 82 Cr.Apeal.1262.13.odt
Prevention of Corruption Act. The Court has drawn a distinction in
between absence of sanction and invalidity of sanction. Non-placing of
the material, bias of the sanctioning authority, sanction granted by
incompetent authority are some of the grounds falling under the
caption invalidity of the sanction (para-10). Whereas in case of Jagan
Nepali the issue involved pertains to the interpretation of the words
“other advantage” appearing in section 2(d) of the said Act. Whether it
has to be read ‘ejusdem generous’ with the words ‘pecuniary benefits’.
The issue is settled. It ha been finally held that the term other
advantage cannot be read as ejusdem generous with other words (para
42).
111. Even though judgments relied upon by learned advocate
Shri Kuldeep Patil pertain to interpretation of Prevention of Corruption
Act, there cannot be any dispute about the proposition that the
approval and sanctioning authority under MCOC Act are supposed to
act cautiously and not blindly. Certainly, they have to peruse the
material placed before them and then have to satisfy themselves about
the ingredients of the offence under MCOC Act. There need not be
detail reasoning and opinion about perusal of the materials and the
conclusion arrived at. It is very well true that Court has to assess the
documentary evidence and the oral evidence and then to arrive at a
conclusion about application of the mind by the concerned authorities.
112. The joint Commissioner of Police granted the approval on
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72 / 82 Cr.Apeal.1262.13.odt
24.10.2011 for invocation of the MCOC Act against the accused Nos. 1
to 7 whereas the incident in question took place on 3.9.2011. So the
rd
proposal for grant of approval was submitted only when this 3
incident took place. At that time, the investigation was with PW
No.19-API Shri Nikam. During investigation it was revealed that
accused No.1 has formed the organized crime syndicate and hence he
submitted the proposal on 14.10.2011 (in his evidence date has come as
14/8/2011. it seems as typing mistake. Because in the approval Exh.118
date has come as 14/10/2011). He got himself satisfied when he
obtained copies of two chargesheets (Exhibit 116 and 117) from the
Competent Court. The sanctioning authority PW No.13 who is
Commissioner of Police Shri Arun Patnaik is examined. His role started
once a proposal came before him through ACP Kale – PW No.20 for
grant of sanction. PW No.13 was cross-examined on the point of
certain lacunas in the sanction relating to taking cognizance.
113. He admits that in the sanction order there is no reference
about the Courts who have taken cognizance in earlier two charge
sheets. “As the investigating Officer has not brought to his notice and
that is why sanction order is silent” and this suggestion is denied by
him. It is true that as consequences of MCOC Act are severe,
legislatures have taken care in prescribing higher police officers who are
expected to deal with the issues under MCOC Act. Only the rank of
ACP Officer can investigate. Whereas approval and sanction can be
granted only by the officer from the rank of Dy. Inspector General of
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73 / 82 Cr.Apeal.1262.13.odt
Police and Additional Director General of Police respectively.
114. There is grievance of invalidity of sanction and not about
absence of sanction. We have perused the evidence of PW No.19
Shri Nikam, PW No.20 ACP Kale and PW No.13 Shri Patnaik and
supporting the documents in the form of approval and sanction. We
agree to the conclusion drawn by the trial Court about application of
mind by the concerned authorities. It is sufficient enough to make a
reference that there are previous charge-sheets. If the details of the
charge-sheet are mentioned in the approval and sanction, it will be an
additional material. However, conversely it cannot be said that approval
and sanction are defective for not referring the details. From their
evidence it is clear that the officers have discussed with the authorities
by visiting their office. It suggests that the concerned authorities were
apprised of the materials and then they took the decision. We do not
think that the ratio laid down in above referred judgments will be
useful to the accused persons. We reject the grievances made in that
behalf.
For above discussion we answer Point Nos. 5 and 7 in the
affirmative
POINT NO. 6
115. Section 3 of MCOC Act lays down punishment for the
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74 / 82 Cr.Apeal.1262.13.odt
offence of organized crime as well as for an offence of being member of
organized crime syndicate. So if person becomes member of organized
crime syndicate he is liable for punishment even though he has not
committed organized crime. Now question arises a person who has
committed an organized crime whether automatically he becomes
member of the syndicate ?
If we peruse the definition clause we may find that there are
two important parameters. One is organized crime syndicate and
second is organized crime. When group of two or more persons
indulge into an act of an organized crime, group becomes organized
crime syndicate (section 2 (1)(f)). Now whether an offence of organized
crime can be committed by an individual. There are two facets. One is a
person who is actually committed the offence. And second is whether
he commits the offence individually on his own or on behalf of some
one else. As per MCOC Act some one else is described as syndicate. So
even if an individual commits organized crime, he can be dealt with as
per this Act only when he commits the act on behalf of the syndicate.
On minute perusal of the definition of ‘organised crime’
(S.2(1)(e)) the continuing unlawful activity becomes an organized
crime only when it is committed on behalf of the syndicate. The activity
may be committed individually or jointly. So also the activity can be
committed by member of the syndicate himself or the syndicate may
hire any person to commit the activity on behalf of the syndicate. It
means a member as well as a non-member can come within the clutches
of this Act, if the activity is committed on behalf of the syndicate. In
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75 / 82 Cr.Apeal.1262.13.odt
other words, for prosecuting a person under the Said Act, he need not
be a member of the syndicate. It is sufficient if he commits the act on
behalf of the syndicate.
It is true that the Act does not recognize the term ‘head of the
syndicate‘. it is the term developed on the basis of experience. For
commission of crime someone has to take initiative. And others follow
him. In this case it is the accused no.1 who is described as head of the
syndicate. It is correct. Because, he is charge sheeted in earlier two cases
and they are also of extortion.
116. The word ‘member’ of the syndicate is not defined under
the Said Act. Organized Crime Syndicate is a group formed not for
committing lawful activities but for unlawful activities. So, just like we
find evidence about membership of lawful organization, it is difficult to
find evidence about membership of the syndicate. The word ‘member’
is defined under Unlawful Activities Act. It is not defined under this
Act. If we go by ordinary meaning by merely participating in activities
of lawful or unlawful organization, you cannot call him as a member of
that organization. You need to show consistent participation/
attendance in the activities of the organization. The trial Court has
convicted Accused no. 1 to 5 for the offence punishable u/s 3(4) of the
Said Act. But, we find no reasoning for coming to that conclusion. We
can only say that Accused no. 1 has formed a syndicate and Accused no.
2 to 5 by playing different roles have participated in the activity. So we
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76 / 82 Cr.Apeal.1262.13.odt
are inclined to set aside the conviction for that offence.
There is one more angle to this issue. S. 3(1) and S. 3(4) are
different offences. A person can be prosecuted once he becomes
member of the syndicate. S. 3(4) nowhere says that a member should
commit organized crime before they can be prosecuted u/s 3(4) of the
Said Act. It may happen that a syndicate has been formed and it is
having several members and organized crime is committed but few
members have not participated in the crime. In such eventuality, such
non-participating members still can be prosecuted u/s 3(4) of the Said
Act.
117. Hence we disagree with the trial court. We answer that
point in the negative.
CONCLUSION
118. Accused No.1 is the main accused in previous two charge
sheets at Exhibit 116 and 117. Their evidence also discloses that he has
taken lead in abducting PW No.12. Earlier charge sheets also pertain to
the kidnapping and demanding ransom. On this background when the
rd
3 incident took place on 3.9.2011, the investigating agency is right in
invoking the provisions of MCOC Act. It is nothing but continuing the
unlawful activity undertaken by accused No.1 being head of the
syndicate. Accused Nos. 2 to 5 may not be involved in the incidents
depicted in earlier two charge sheets. It is sufficient compliance of the
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77 / 82 Cr.Apeal.1262.13.odt
Act if they have helped, assisted or abetted accused No.1 in committing
rd
the 3 incident which is an offence. So the trial Court was right in
coming to conclusion that offence under Section 3(1) (ii) of MCOC
Act has been committed by each of accused Nos. 1 to 5. Accused Nos.
2 to 5 have performed their role and accordingly assisted accused No.1
in fulfilling his design. Accused Nos.2 to 5 have played different roles
but certainly it has helped in accomplishing the goal. We find no
reason to interfere in the finding of the trial Court.
POINT NO. 8 & 9
EXTENT OF SENTENCE:-
119. There is an argument that the trial Court has not shown any
leniency and has imposed maximum sentence. There is an argument
that the role of the accused Nos. 2 to 5 need to be considered. There is
an argument that age of accused No.5 need to be considered and his
one leg has been amputated. There is a maximum punishment of life
and imprisonment may extend to 10 years for the offence punishable
under section 364 of the IPC whereas there is 10 years imprisonment
for the offence under section 386 of IPC. Whereas the trial Court has
imposed life imprisonment for the offence under Section 364 of IPC
and rigorous imprisonment for 10 years for offence under Section 386
of the Indian Penal Code. Whereas there is a maximum punishment of
life imprisonment for the offence punishable under Section 3(1)(ii) of
the MCOC Act.
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78 / 82 Cr.Apeal.1262.13.odt
120. What we feel is that the accused Nos.2 to 5 need not be
dealt with on a line similar to accused No.1. Though we feel that life
imprisonment to accused No.1 for the offence punishable under
Section 364 of IPC and punishment up to 10 years for the offence
punishable under Section 386 of the IPC will meet the ends of the
justice. So also for the offence punishable under Section 3(1) (ii), life
imprisonment will only be the appropriate sentence for accused No.1.
Fine of Rs.5.00 lakhs was imposed on accused No.1 for the offence
under MCOC Act but we feel that our hands are tied because there is a
minimum fine prescribed under MCOC Act. Whereas learned
advocate Shri Wagal relied upon judgment in case of Ganesh Vinay
13
Bhosale v/s. State of Maharashtra on the point of criterion to be
considered while deciding the period of sentence to be undergone if the
fine amount is not paid . However, certainly we can reduce the sentence
in default of the fine as done by this Court in case of Ganesh Vinay
Bhosale as referred above. We reduce it to three years for offence
under MCOC Act if the fine is not paid.
121. We feel that for offence under section 364 of IPC and
under section 3(1)(ii) of MCOC Act accused Nos. 2 to 5 the sentence
undergone by them will meet the ends of justice. They are behind bar
right from their date of arrest since 2011. So we reduce their sentence
from the life imprisonment imposed by the trial Court to the sentence
13
Criminal Appeal no. 559 of 2010 and other Appeals
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79 / 82 Cr.Apeal.1262.13.odt
already undergone by them. Because section 364 of IPC and section
3(1)(ii) of MCOC Act give the option. we maintain the sentence for
offence under section 386 of IPC. We also reduce the imprisonment in
case of default to pay the amount of fine to 3 years sentence. We also
feel that order to pay compensation of Rs. 6 lakh to the complainant
need to be set aside This amount is to be paid from the amount of fine.
We were told that fine under MCOC Act is not paid. So it is difficult to
pay compensation to victim. Even we feel that the quantum is
excessive. The provisions of Section 357 of Cr.P.C. is not incorporated
to put the victim in the same position as he stands earlier. We are
aware that victim has not appeared. Even though it is true that even if
default sentence is served, the liability to pay compensation amount
still remain. But we do not want to keep the accused Nos.2 to 5 under
that liability when they have already spent precious 10 years of their
life. Otherwise also we have maintained life sentence for accused No.1.
So no purpose will be served by maintaining that order. We intend to
set it aside. Hence, we answer the point accordingly.
O R D E R
1.
The appeals are partly allowed.
2. The conviction and sentence of accused Nos. 1 to 5 are modified
as follows -
a) Instead of convicting the accused under Sections 386, 364
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80 / 82 Cr.Apeal.1262.13.odt
read with section 120 B of IPC, they are convicted for the offence under
Sections 364, 386 read with section 34 of the IPC.
b) Conviction of accused no.1 under section 323 of IPC is
maintained.
c) The sentence of accused no.1 for all the offences is
maintained.
d) The sentence of accused nos. 2 to 5 for the offence under
Section 364 of IPC is altered from life imprisonment to
period already undergone.
e) The conviction and sentence of accused nos. 2 to 5 is
maintained for the offence under section 386 of IPC.
f) The sentence of fine is maintained and the default sentence
to run consecutively.

3. The conviction of accused nos. 1 to 5 for offence under
section 3(1)(ii) of MCOC is maintained.
(a) The substantive sentence of accused no.1 for offence
under section 3(1)(ii) of MCOC is maintained.
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81 / 82 Cr.Apeal.1262.13.odt
(b) The substantive sentence of accused no.2 to 5 is
altered from life imprisonment to period already
undergone by them.
(c) The default sentence due to non payment of fine of
Rs. 5,00,000/- is reduced to three years RI instead of four
years for accused nos. 1 to 5.
4. The conviction of accused nos.1 to 5 for the offence
punishable under section 3(1)(4) of MCOC is set side.
(a) Fine paid if any be returned to them individually.
5. The order to pay compensation of Rs. 6 lakh to the
complainant from the fine amount is set aside.
6. The conviction of accused nos. 1 and 2 for the offence
punishable under Section 4 read with section 25 of the Arms Act is
set aside.
(a) Fine paid if any be returned to them.
7. Except with above variation, the order of conviction
and sentence is maintained.
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82 / 82 Cr.Apeal.1262.13.odt
8. All pending applications are disposed of.
9. All appeals are disposed of in the light above directions.
(S.M.MODAK, J.) (PRASANNA B. VARALE, J.)

L.S. Panjwani, P.S.
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