Point of Law: Unlawful assembly - Liability of accused - If an act committed is a result of pre-meditation and execution, by several persons, the person who had shared the common intention is to be held liable for the said offence

JUDGMENT :

SADHANA S. JADHAV, J.

CRIMINAL APPEAL NO. 878 OF 2002

1 This appeal impugns the Judgment and Order dated 29th April, 2002 passed by the Additional Sessions Judge, Gr. Mumbai in Sessions Case Nos. 15/1998 a/w. 448/1998 a/w. 1473/1998 a/w. 18/2000 a/w. 365/2001, thereby convicting and sentencing the Accused No.19-appellant Mohd. Rauf Dawood Merchant as under :

(i) For the offence punishable under section 302 of Indian Penal Code to suffer imprisonment for life and to pay a fine of Rs. 5,000/- I.d. to suffer S.I. for 3 months;

(ii) For the offence punishable under section 307 of the Indian Penal Code to suffer imprisonment for life;

(iii) For the offence punishable under section 392 of the Indian Penal Code to suffer R.I. for a period of 7 years and to pay a fine of Rs. 1,000/- I.d. to suffer S.I. for one month.

(iv) For the offence punishable under section 397 of the Indian Penal Code to suffer R.I. for a period of 7 years and to pay fine of Rs. 1,000/- I.d. to suffer S.I. for one month.

(v) For the offence punishable under section 27 of the Arms Act and is sentenced to suffer R.I. for 3 years and to pay fine of Rs. 1,000/- I.d. to suffer S.I. for one month.

2. This appeal pertains to the murder of Gulshan Kumar Dua, the Managing Director of Super Cassette Industries, who was in the business of purchase of rights of audio cassettes of Hindi movies and private albums. He was the founder of T-Series Company and producer of several movies. He was shot dead in broad daylight. On 12th August, 1997 the deity SHIVA received the last offerings from his pious disciple Gulshan Kumar Dua, the deceased. On that day at 10 a.m., he visited Shiv Mandir, situated at Jeet Nagar, Andheri(W) as part of his daily routine. He had sponsored the renovation of the said temple in the year 1976. Ever since then, he was visiting the temple twice a day - in the morning at about 10 a.m. and in the evening at about 6 p.m. On that day, as usual his driver Rooplal(P.W.7) had driven him to the temple in his Red Opel Car. Ramchandra Lavangare (P.W.1) the President of the Shiv Temple Management Association had also attended him as usual. He offered prayers for about 15 minutes, made the offerings and was returning home. He was proceeding towards his car, which was parked facing towards Navkiran Road at a distance of just 6 to 7 feet across the temple. He was followed by his driver P.W. 7 and P.W. 1 as usual. When they reached the car, the driver had crossed the other side of the car to take the driver’s seat and therefore, P.W. 1 was walking a few steps behind Gulshan Kumar. When Gulshan Kumar was opening the door of the car, suddenly a person waiting in ambush, touched his back with a pistol and fired a battery of bullets in a fraction of a second. Taken by surprise, Gulshan Kumar turned back only to receive more bullets on his chest. At that juncture, when he was about to collapse, another assailant rushed towards him and rained bullets on him. He still struggled to rescue himself and walked a few paces upto the Gate of Raundal’s bungalow and was again showered with bullets by the third assailant. When his driver tried to help him to rise, he was also shot on his right thigh. P.W. 1 had laid him on the rear seat of the car and immediately asked Rajesh Johari (P.W.3) to drive the car to Cooper Hospital. P.W.1 followed the car in an auto rickshaw. By the time, the injured reached Cooper Hospital, some person from Jeet Nagar had given telephonic information to D.N. Nagar Police Station, which information was received by PSI Rashmi Jadhav(P.W. 10) at 10.35 a.m. After making station diary entry at Sr. No. 23/97, she rushed to Cooper hospital with P.I. Rane (P.W.11), PSI Shinde (P.W.13) and a police constable. There she saw one severely injured man on stretcher, a crowd of people and P.W. 1 Laxman Lavangare, the only person who could tell her what exactly happened. P.W. 10 then recorded his statement which is at Exh. 54. As per the directions of PI Rane, she retur