IMPORTANT POINT
The judgment clarified the standards for proving membership in an organized crime syndicate and the necessity of demonstrating continuing unlawful activity under MCOCA.

JUDGMENT :

Sarang V. Kotwal, J.

1. All these Appeals are decided by this common Judgment because they arise out of the same impugned Judgment and order of conviction and sentence. The impugned Judgment and order is passed by the Special Judge under MCOCA, Nashik, in Special Case No.5 of 2016. The Appellant Ganesh Suresh Wagh @ Ganya Kavlya in Criminal Appeal No.119 of 2022 was the original accused No.1. The Appellant Mukesh Dalpatsingh Rajput in Criminal Appeal No.917 of 2021 was the original Accused No.4 and the Appellant Shakir Nasir Pathan @ Motha Pathan in Criminal Appeal No.111 of 2022 was the original Accused No.5. For the sake of convenience, the Appellants are referred to by their names, in the following discussion. There were in all six accused. The Appellants were convicted and sentenced as follows:

i) The Appellants Ganesh and Shakir were convicted for commission of offence punishable under section 307 r/w. 34 of the I.P.C. and were sentenced to suffer R.I. for 10 years and to pay a fine of Rs.3,000/- each and in default to suffer R.I. for six months.

ii) The Appellants Ganesh and Shakir were convicted for commission of offence punishable under section 387 r/w. 34 of the I.P.C. and were sentenced to suffer R.I. for 5 years and to pay a fine of Rs.2,000/- each and in default to suffer R.I. for two months.

iii) The Appellants Ganesh and Shakir were further convicted for commission of offence punishable under section 506(II) r/w. 34 of the I.P.C. and were sentenced to suffer R.I. for 6 months and to pay a fine of Rs.500/- each and in default to suffer S.I. for one month.

iv) The Appellants Ganesh and Shakir were further convicted for commission of offence punishable under section 426 r/w. 34 of the I.P.C. and were sentenced to suffer R.I. for 1 month.

v) The Appellants Ganesh and Shakir were further convicted for commission of offence punishable under section 397 of the I.P.C. and were sentenced to suffer R.I. for 8 years and to pay a fine of Rs.3000/- each and in default to suffer R.I. for six months.

vi) The Appellants Ganesh and Shakir were further convicted for commission of offence punishable under section 3(1)(ii) of the Maharashtra Control of Organised Crime Act, 1999 and were sentenced to suffer R.I. for 10 years and to pay a fine of Rs.5 lakhs each and in default to suffer R.I. for two years.

vii) The Appellants Ganesh, Mukesh and Shakir were further convicted for commission of offence punishable under section 3(4) of the Maharashtra Control of Organised Crime Act, 1999 and were sentenced to suffer R.I. for 8 years and to pay a fine of Rs.5 lakhs each and in default to suffer R.I. for two years.

They were acquitted from all the other charges. They were granted set off U/s.428 of the Cr.p.c. All the sentenced were directed to run concurrently. All the other accused were acquitted of all the charges.

2. Heard Mr. Tuushar Sonawane, learned counsel for the Appellant in Appeal No.111 of 2022, Mr. Ganesh Gole, learned counsel for the Appellant in Criminal Appeal No.917 of 2021, Mr. Aniket Nikam, learned counsel for the Appellant in Criminal Appeal No.119 of 2022 and Smt. M. R. Tidke, learned APP for the State/Respondent.

3. The prosecution case is that, all the accused were members of an organised crime syndicate led by the Appellant Ganesh. The incident, leading to this prosecution, had occurred on 31.05.2016 at about 3:30p.m. outside a wine shop. The Appellants and others approached the victim Shubham Bhavsar outside that wine shop. The Appellant Shakir showed him a pistol. He put it on the left side of the victim Shubham’s head and threatened him. The other Appellants Ganesh and Mukesh assaulted him with iron rods. The other accused Saidya Shaikh assaulted him with a sword. He sustained injuries. They removed Rs.7300/- from him. They threatened him. It is alleged that the accused were knowing that, Shubham’s father had sold his property and therefore, some money was available with Shubham. The accused demanded that money. T