MOHAMAD IQBAL FAROOQ SHEIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal by accused Nos. 2 and 3 takes exception to the Judgment and Order passed by the Special Judge under MCOCA act, 1989 dated December 12th and 13th, 2000 in M. C. O. C. Special Case No. 2 of 1999. The appellants along with one other accused Salim Mehmood Shaikh (Accused No. 1) were charge-sheeted and tried for offence punishable under section 307 read with section 120-B, Indian Penal Code and also under section 3 read with section 25, section 5 read with section 27 of the Arms Act and further under section 3 (l) (ii) , 3 (2) and section 3 (4) of the Maharashtra Control of organised Crime Act, 1999. The incident in question had occurred on 19th march, 1999. Four Accused were involved in the commission of the offence. Ashphaq Ismail Khalpe (Accused No. 4) however, died on 23rd March, 1999 in police encounter. The prosecution case was that all the accused indulged in unlawful activities as members of organised crime syndicate of Chhota Shakeel faction of Dawood Ibrahim Kaskar's organised crime syndicate/gang. It is alleged that in furtherance of criminal conspiracy hatched between the accused with the gang lords Chhota Shakeel as also Abu Salem Abdul Qayum Ansari, accused No. 1 to 3 along with Ashphaq Ismail Khalpe in pursuance of criminal conspiracy hatched between them and in furtherance of their common intention went at K. C. Road, Opp. Reclamation ground near Rang Sharda Hotel, Bandra (West) , Mumbai on 19th March, 1999 at about 6 p. m. and the accused No. 1 salim Mehmood Shaikh along with deceased accused Ashphaq Ismail Khalpe entered the ground with fire arms in their possession and fired shots at Ramesh jagdish Sharma (P. W. 11) , also causing hurt to Sudhakar Shantaram Manjrekar (P. W. 14). Prosecution case is that these accused Nos. 1 to 3 along with deceased ashphaq Ismail Khalpe attempted to commit murder of Shri Ramesh Jagdish sharma (P. W. ll) and caused hurt to Sudhakar S. Manjarekar, Art Director (P. W. 14). The trial Court on analysing the evidence on record, recorded finding of guilt against all the accused. The trial Court passed following operative order :

(2.) In this appeal we are concerned only with accused No. 2 and 3 who are held guilty of offence under section 3 (2) of MCOC Act read with Section 120b of Indian Penal Code only. Accused No. 1 Salim Mehmood Shaikh had filed separate appeal being Appeal No. 108 of 2001, but the same has been dismissed for non-prosecution on 16th August, 2002. Accordingly, I am called upon to consider the case of only accused No. 2 and 3, who are the appellants in the present appeal. Mr. Nitin Sejpal, advocate appearing for the appellants, however, submits that he has been instructed to appear only for appellant No. 2/original accused No. 3 and according to him some other advocate would espouse the cause of appellant No. I/accused No. 2. However, when the matter was called out on 31st August, 2006, none appeared for the appellant No. 1. In the circumstances, with a view to proceed with the hearing of the appeal, which is pending since 2001, I requested Mr. Sejpal to address this Court to espouse the cause of appellant No. I/accused No. 2 as amicus curiae. He accepted that request, as there was no conflict of interest between the stand of appellants/accused No. 2 and 3.

(3.) On hearing the rival submissions and going through the record of the case, it is seen that accused Nos. 1 and 2 have given confessional statement which has been used against him. Confessional statement of accused has been recorded by the authority (P. W. 16) in terms of power under section 18 of the MCOC Act, which has been proved in evidence. In both these confessional statements role of concerned accused in the commission of the offence is spelt out. This is the principal evidence, which is used against the accused No. 2 himself as well as accused No. 3. So far as accused No. 3 is concerned, prosecution additionally relies on the evidence of P. W. 7 to corroborate the version given in the confessional statement of accused No. 2. There is no other evidence relied by the prosecution to indicate the complicity of accused No. 3 in the commission of the offence. Insofar as accused No. 2 is concerned, there is one additional evidence of discovery of vehicle, used in the commission of the offence, at the instance of accused No. 2, under section 27 of the Evidence Act.