2014 Supreme(Bom) 318

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B.R. GAVAI & A.S. CHANDURKAR, JJ.
State of Maharashtra
Vs.
Sachin S/o. Mukinda Manerao & Ors.
Criminal Appeal Nos.317, 257 of 2010 and Criminal Appeal No. 291 of 2013
Decided on: 10th February, 2014

Headnote:Maharashtra Control of Organised Crimes Act, 1999 - Sections 2(e) and 3 - Punishment for organized crimes. - Since activities committed by accused by use of violence, or threat of violence or intimidation or coercion or other unlawful means, comes under definition of Section 2(e) of Act hence liable to be punished under Section 3(1)(ii) of Act. - Apart from the fact that various activities which are mentioned herein above in respect of which the charge-sheets are filed, were also with respect to gaining pecuniary advantages. However, it can clearly be seen that most of the activities have been committed by use of violence, or threat of violence or intimidation or coercion or other unlawful means. The tenor of the activities committed by the organised crime syndicate consisting of accused Nos. 1, 2 and 4, was of indulging into various activities of threatening people, extorting them, committing dacoities and in general causing a terror in the Sudam Nagari area of Nagpur.

       It is clear that the activities were intended with an intention of getting a stronghold or supremacy as the ‘organized crime syndicate‘ consisting of said accused persons in the area of Sudam Nagari. The prosecution has established that the activities of the accused Nos. 1, 2 and 4 which clearly come under the definition of Section 2(e) of the MCOC Act and therefore, they are liable to be punished for an offence punishable under Section 3(1)(ii) of the MCOC Act. In that view of the matter, the appeal of the State needs to be partly allowed.

       Maharashtra Control of Organised Crimes Act, 1999 - Section 3 - Organized crime. - To bring a case under ambit of organised crime, prosecution has to establish essential ingredients as indicated. - So as to bring a case under the ambit of organised crime, the prosecution will have to establish (i) that there has to be a continuing unlawful activities; (ii) that such an activity will have to be by an individual, singly or jointly; (iii) that such an activity is either by a member of an organized crime syndicate or on behalf of such syndicate; (iv) that there has to be use of violence or threat of violence or intimidation or coercion or other unlawful means; (v) that such an activity has to be with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for the person who undertakes such an activity or any other person or promoting insurgency.

       Indian Penal Code, 1860 - Section 376(2)(g) - Acquittal for offence under. - Since accused was not along with other accused when they committed rape on victim and accused not committed rape on prosecutrix hence rightly acquitted of change. - It is thus clear that role attributed by the prosecutrix in respect of accused No. 3 is by way of an improvement. The Special Judge further found that husband of the prosecutrix (PW 4 Namdeo) in his evidence has also not stated that his wife had made any such statement about the involvement of accused No. 3. As a matter of fact the conduct of the accused No. 3 Gabbar to reach the prosecutrix to her house after other accused had committed the crime, was that he tried to save the prosecutrix. Though it was sought to be urged on behalf of the Appellant that in view of Section 34 of the Indian Evidence Act, accused No. 3 was also liable to be convicted for the offence punishable under Section 376(2)(g) of the Indian Penal Code, the said contention is without substance. Even, according to the prosecution case, the accused No. 3 was not along with the other accused when they initially intercepted the prosecutrix and took her to the house of PW 2 Latabai and committed sexual intercourse with her. It is not the case of the prosecution that at any point of time accused No. 3 had committed rape on prosecutrix. Court finds that nothing has been placed on record by the prosecution to establish that accused No. 3 was also having a common intention with other three accused for committing the rape on prosecutrix. In that view of the matter, the finding of the Special Judge holding that accused No. 3 was entitled to acquittal cannot be said to be either perverse or impossible to warrant interference. In that view of the matter, Court finds that no interference is warranted with the finding of acquittal of accused No. 3 as recorded by the Special Judge.

       Indian Penal Code, 1860 - Section 376(2)(g) - Conviction for gang rape. - Since evidence of prosecutrix is cogent, credible and trustworthy and corroborated with evidence of witnesses hence conviction of accused persons justified. - It is to be noted that, in the present case, the absence of injuries would not be of much consequence to the defence of the accused. It is not the case of the prosecutrix that she attempted to put resistance. She was forced to undergo through the heinous act under the threat to her life as accused were armed with swords and knives.

       In view of the evidence of PW 1 prosecutrix, which Court finds to be trustworthy, reliable and cogent, and corroboration to her testimony by the evidence discussed herein above, Court does not find that any interference is warranted with the findings of the Special Judge insofar as conviction under Section 376(2)(g) of the Indian Penal Code of accused Nos. 1, 2 and 4 is concerned. The Special Judge has rightly, upon appreciation of the evidence led before him, convicted the accused Nos. 1, 2 and 4 for the offence punishable under Section 376(2)(g) of the Indian Penal Code.