The main legal point established in the judgment is the reliance on direct evidence, recovery evidence, and medical evidence to establish the guilt of the accused.

JUDGMENT

1. The Appellant has challenged the Judgment and Order dtd. 22/12/2016 passed by the Special Judge under MCOC Act, 1999 in MCOC Special Case No.6 of 2012. The Appellant was convicted for commission of offence punishable u/s 307 of the Indian Penal Code and was sentenced to suffer rigorous Nesarikar imprisonment for 10 years and to pay a fine of Rs.10, 000.00 and in default to suffer simple imprisonment for one year. The Appellant was acquitted from the charges of commission of offence punishable u/s 387, 323, 365, 504 (ii) and 506(ii) r/w 34 of the Indian Penal Code and also from the charges u/s 3 r/w 25 of the Arms Act and u/s 3(1)(ii), 3(2) and 3(4) of Maharashtra Control of Organized Crime Act, 1999.

2. The Appellant was granted set off u/s 428 of Cr.P.C. Besides the Appellant, there was one more accused Bajrang @ Ganesh @ Takya Ganya Dhondiram Nichite, who was accused No.2 in this case. He was acquitted from all these charges.

3. Heard Ms. Saili Dhuru, learned counsel for the Appellant and Mr. P. H. Gaikwad, learned APP for the State.

4. To protect the identity of the prosecution witnesses for the reasons of their security and safety, they are described as their status of prosecution witnesses before the trial Court. The prosecution case is about the incident dtd. 14/09/2011. The Appellant came at the gate of Vishwabharati building with two others as passengers of a taxi. One of them was the accused No.2 and the other was one Vijay Shivgan who had lodged the FIR in this case. The prosecution case is that the Appellant asked the driver to stop the taxi near P.W.5. He had some talk with P.W.5 regarding payment of some amount. The Appellant then fired a bullet at the abdomen of P.W.5. He also fired in the air and then asked the taxi driver to drive the taxi away. The injured lay on the ground. He was taken to Sion Hospital by his brother P.W.4. The police were informed. They came at the spot and conducted inspection. Vijay Shivgan who was in the taxi was left at some place. He came to the spot and gave details of the incident to the police. The offence was registered vide C.R.No.294/2011 at Sion Police station. The Appellant was arrested on 18/09/2011. A weapon and some cartridges were recovered from his house at his instance. By a separate disclosure statement, another weapon and other bullets were recovered from a place which he had taken on rent. In the meantime, the injured P.W.5 was shifted to Lilavati Hospital, where he underwent surgery. The bullet, which remained in his body, was removed. The firearm recovered at the instance of the Appellant and the bullet recovered from the body of P.W.5, were sent for ballistic examination. They found to match with each other.

5. During course of investigation it was found that this offence was committed as continuing unlawful activity by an organized crime syndicate and therefore approval u/s 23(1) of Maharashtra Control of Organized Crime Act, 1999 (for short 'MCOCA') was granted to apply provisions of MCOCA and to investigate under that Act. The investigation was carried out by the appointed police officer. After the investigation was carried out, sanction u/s 23(2) of MCOCA was obtained and the chargesheet was filed. The cognizance was taken by the Special Court under MCOCA.

6. During trial, the prosecution examined 18 witnesses. There were three more eyewitnesses besides the injured witness. The prosecution examined Doctors at both the hospitals. The Panchas were examined to prove recoveries. The police constable, who had carried weapons and articles to FSL, was examined. The police authorities granting approval u/s 23(1) and sanction 23 (2) of MCOCA were examined. Besides them, the Investigating Officers were examined. The defence of the Appellant was of total denial. In addition, he explained in his written statement recorded u/s 313 of Cr.P.C. as under; 'He was working with a builder as a watchman. In 2005, the place where he was residing, was in demand and many bui