STATE OF MAHARASHTRA Vs. SIRAJ AHMED NISAR AHMED

JUDGEMENT

(1.) The State of Maharashtra has preferred this appeal under the provisions of Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "TADA Act") challenging the Judgment and Order dated 5.10.1995 passed by the Additional Judge, Designated Court for Greater Bombay in TADA Special Case No.10 of 1995.

(2.) Twelve persons, as accused Nos. 1-12, were charged and prosecuted for the offences punishable under Sections 120-B, 143, 147, 148, 149, 302, 302 r/w 120-B, 302 r/w 149, 307 r/w 120-B, 307 r/w 149, 392, 392 r/w 120-B, 392 r/w 149, 397 r/w 120-B, 397 r/w 149, 379, 379 r/w 149, 379 r/w 120-B, 468, 468 r/w 120-B, 468 r/w 149, 471, 471 r/w 120-B, 471 r/w 149 of the Indian Penal Code, 1860 (for short "IPC") and under Sections 3 r/w 25, 7 r/w 27 (2 and 3) of the Arms Act, 1959 and under Sections 3(2) (i) (ii), 3(3), 3(5), 5 and 6 of the TADA Act by the Designated Court. During the trial before the Designated Court, accused No. 2, viz., Feroz Abdullah Sarguru alias Feroz Konkani escaped from the lawful authority of the police while the trial was still in process and as he was not arrested thereafter, the Designated Court neither considered any evidence nor recorded any finding against the absconding accused. The Designated Court held that there was insufficient evidence against the 11 accused persons for the offences they were charged with and they were acquitted, except accused No. 3 Rizwan Mohammad and accused Nos. 4-6/originally respondent Nos. 3-5/respondent Nos. 1-3 (in the amended cause title) for the offences punishable under Section 5 of the TADA Act and sentenced them to rigorous imprisonment for five years with a fine of Rs. 2,000/- each, in default of which rigorous imprisonment for another six months was imposed. All these four accused persons were also found guilty for the offences punishable under Section 3 r/w Section 25 and Section 7 r/w Section 27 of the Arms Act. But, in view of the sentence awarded, separate sentence was not awarded under these Sections. The State has challenged the acquittal of 11 persons of the charges not found proved by the Designated Court. During the pendency of the proceedings before this Court, the appeal as regards accused Abdullah Rahman alias Hamza, Mohd. Harun and Azim Sardar Khan, who were originally respondent Nos. 1, 9 and 10 before us, was dismissed for non-compliance of this Courts Order dated 23.8.2002, with respect to furnishing the correct and complete addresses of these respondents for issuance of bailable warrants. Similarly, the appeal as regards Rizwan Mohd., who was originally respondent No. 2, was dismissed on 27.2.2004 for non-compliance of this Courts Order dated 8.2.1999 regarding issuance of bailable warrants. Hence, we have before us respondent Nos. 1, 2, 3, 4, 5, 6 and 7 who were originally respondent Nos. 3, 4, 5, 6, 7, 8 and 11 whose names are : Siraj Ahmed Nisar Ahmed Khan, Mohamed Firoz Ayub Khan, Rafiq Latif Sheikh, Shafiq Latif Sheikh, Gurnamsingh alias Chotu, Salim Karim Dingaonkar, Mohamed Mushraf Hussain Shiekh. Factual Matrix

(3.) The factual matrix as per the prosecutions version and the evidence led by the prosecution in the relevant background to prove the alleged conspiracy and the commission of the offences the accused charged for, is as follows: That all the accused persons were members of the criminal gang led by Chota Shakeel who was residing in Dubai and was controlling the activities of the gang members from that place. In or around 1994, a decision was taken by Chota Shakeel to eliminate one Ramdas Nayak who was the member of Mumbai Municipal Council. Accordingly, he disclosed his plan and directed Sajid to make necessary arrangements to give effect to the plan. Sajid approached these 12 accused persons and explained to them the directions of their leader and assigned each one of them specific duties. It is alleged that Sajid approached Feroz Konkani (absconding accused) and informed him about the daily routine of Ramdas Nayak. He informed him that Ramdas Nayak leaves his residence in a white colour Ambassador car at about 9 or 10 A.M. and Ramdas Nayak is provided with police protection of one armed constable. Sajid made firearms and ammunitions available to the accused persons and the directions had been issued to Rizwan to make necessary arrangements for the shelter of the accused persons. Sajid had provided a .38 revolver to Feroz Konkani, a 9 mm pistol to one Soni and revolvers to John and Akhtar. A few days before the fateful day on which the gruesome murder of the deceased Ramdas Nayak along with the police constable took place, the absconding-accused Feroz with .38 revolver, Soni with 9mm pistol, John and Akhtar with revolvers, waited outside the house of the deceased to implement their plan. However, they failed that day because the deceased had not come out of his residence till 11 A.M. Moreover, they had some apprehension of the arms possessed by bodyguard of the deceased and they thought that they were not adequately armed to bring into action the plan set up by them.