BOMBAY HIGH COURT
Sadhana S. Jadhav and Milind N. Jadhav, JJ.
Maruti Navnath Sonawane —Appellant
versus
State of Maharashtra —Respondent
Criminal Appeal No.198 of 2022
Decided on 4.5.2022

IMPORTANT POINTS
(1) Commission of organised crime – There should be agreement between persons who are alleged to conspire doing of an illegal act by illegal means and which by itself may not be illegal.
(2) In a criminal case onus lies on prosecution to prove affirmatively that accused was directly and personally connected with acts or omissions attributed to crime committed by him.

Headnote:

Maharashtra Control of Organized Crime Act, 1999 – Section 3(i)(ii), 3(2) and 3(4) – Indian Penal Code, 1860 – Sections 395, 397, 412, 341, 201 r/w 120 (B) – Maharashtra Police Act, 1951 – Sections 37(1)(A) and 135 – Criminal Procedure Code, 1973 – Section 239 – Commission of organised crime – Rejection of application seeking discharge from criminal case – There should be agreement between persons who are alleged to conspire doing of an illegal act by illegal means and which by itself may not be illegal – In a criminal case onus lies on prosecution to prove affirmatively that accused was directly and personally connected with acts or omissions attributed to crime committed by him – Impugned order proceeds on the basis that there is voluminous material available against Appellant for proceeding against him for charge levelled against him – There is no material placed on record by prosecution to come to prima facie conclusion that Appellant was in active conversation with any of co-accused before, during or after commission of crime – Charge of prosecution that Appellant has recced spot of visit of complainant and there is ample material showing prima facie involvement of Appellant is highly unreliable in absence of material evidence – When prosecution claims that a substantial amount was received by Appellant, burden of proof is on prosecution to prove on the basis of factual evidence and show what substantial amount was paid to Appellant – Role of Appellant in present crime is prima facie doubtful – Strong prima facie case has been made out by Appellant that this is a fit case for discharge and that Appellant deserves to be given benefit of doubt – Appellant discharged from criminal proceeding.

Held: Analysis of the aforesaid provisions show that there should be an agreement between the persons who are alleged to conspire doing of an illegal act by illegal means and which by itself may not be illegal; that such an agreement can be proved either by direct or circumstantial evidence or by both; hence the circumstances proved before, during and after the occurrence need to be considered to decide about the complicity of the accused, needless to state that if the circumstances prove the innocence of the accused then it cannot be held that the prosecution is correct in applying the provisions of the MCOC Act to the accused, that even if it is proven that certain acts have been permitted it needs to be clear that the said acts were so committed in pursuance of an agreement made between the accused who are party to the alleged conspiracy; that inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. It has also been held by the Supreme Court in a catena of cases that in a criminal case the onus lies on the prosecution to prove affirmatively that the accused was directly and personally connected with the acts or omissions attributed to the crime committed by him.

Next we come to the prosecution’s charge of the involvement and role of the Appellant in the present case. The impugned order proceeds on the basis that there is voluminous material available against the Appellant for proceeding against him for the charge levelled against him. According to the prosecution there are 5 specific charges against the Appellant in respect of which there is evidence on record to indict the accused as under: –

(i) that the Appellant recced the spot of visit of the complainant at Panvel when the complainant visited the jewellers’ shops for showing the sample gold ornaments;

(ii) that the Appellant was in continuous conversation with some of the co-accused in the crime and provided them first hand information about the whereabouts and movement of the complainant from Panvel to Chinchpokli until commission of the crime;

(iii) that the CCTV footage of Panvel area, Panvel railway station, Chinchpokli railway station and the area outside Chinchpokli railway station on the footover bridge showed the presence of the Appellant and his movement in stalking and following the complainant;

(iv) that 4 SIM cards bearing Nos.9892715679, 9892709925, 9892711286 and 9892710644 were used by the organised crime syndicate to discuss, conspire and relay information, hatch the conspiracy and provide information about the movement of the complainant to the other co-accused in the crime and SIM card No.9892709925 used by Ms. Sangita Nair, co-accused No.8, wife of Ayub Chikna was in active conversation with the Appellant on his mobile phone No. 9987251628 and;

(v) that the amount of Rs.10,200/- was recovered from the Appellant, which was out of the consideration received for his role of providing accurate information about the movement of the complainant.

Apart from the aforestated four CCTV footages, there are no other CCTV footages referred to and relied upon by the prosecution to cite the presence of the Appellant either in Panvel area or at Chinchpokli railway station area before, during or after commission of the crime. None of the 4 CCTV footages and its transcripts relied upon by the prosecution show the presence of the Appellant in any of the camera frames. We have minutely perused the panchnamas and transcripts of the CCTV panchanamas relied upon by the prosecution to unearth whether the Appellant is spotted or seen in any of the said footages and we find that the Appellant is not seen in any of the said frames. Therefore the charge of the prosecution that the Appellant has recced the spot of visit of the complainant and there is ample material showing prima facie involvement of the Appellant is highly unreliable in the absence of material evidence.

Next we come to the charge of the prosecution that there was continuous conversation between the Appellant and the co-accused before and during the commission of the crime and there is ample material collected during investigation to show prima facie involvement of the Appellant in the crime.

Finally the prosecution has charged that an amount of Rs. 10,200/- was recovered from the Appellant when he was apprehended and this was part of the total consideration which the Appellant had received from the leader of the organized crime syndicate Ayub Chikna. We are afraid to state that once again this is a charge without any substantive proof or evidence for indicting the Appellant. When the prosecution claims that a substantial amount was received by the Appellant, the burden of proof is on the prosecution to prove on the basis of factual evidence and show what substantial amount was paid to the Appellant. Further the prosecution has to show as to how the substantial amount was received by the Appellant, from whom and when the said amount was received and who paid the said amount to the Appellant. No such evidence is presented, save and except it is alleged that an amount of Rs. 10,200/- was recovered from the Appellant and this was the money out of the total consideration received by the Appellant from the gang leader Ayub Chikna for providing the tip and information about the movement of the complainant to some of the co-accused. The prosecution has not placed on record any evidence whatsoever to show the nexus of the recovery of Rs. 10,200/- from the Appellant to the same having being received from Ayub Chikna.

As seen, in the absence of any material, direct or indirect evidence about the presence of the Appellant in the CCTV footage investigated by the prosecution, the recovery of the alleged SIM card and/or mobile phone bearing No.9987251628 from the Appellant and unable to show any nexus of the recovery of Rs.10,200/- with the alleged consideration amount paid to the Appellant by the main accused, we come to the conclusion that this is a case of no prima facie evidence against the Appellant. In view thereof, the role of the Appellant in the present crime is prima facie doubtful. We are not in agreement with the conclusion arrived at by the learned Special Judge, MCOCA in the impugned order dated 18.01.2022 that there is voluminous material available against the Appellant to proceed against the Appellant for the charge levelled against him under the MCOC Act.

In view of the above discussion and findings, we are of the considered opinion that a strong prima facie case has been made out by the Appellant, that this is a fit case for discharge and that the Appellant deserves to be given benefit of doubt, hence the Appeal is allowed and disposed of in terms of prayer clause (a) which reads thus: –

“(a) That this Hon’ble Court be pleased to discharge the Appellant from the alleged entire proceedings arisen in final report arising out of FIR vide CR No. 70 of 2019 dated 07.04.2019 for alleged offence punishable u/s. 395, 397, 412, 341, 201 r/w 120 (B) of Indian Penal Code, section 3(1)(ii), 3(2) and 3(4) of Maharashtra Control of Organized Crime Act, 1999 and u/s. 37(1)(A) r/w 135 of the Maharashtra Police Act registered at the instance of Kalachowki Police Station.”

(Paras 16.1, 18, 19.1,20, 21, 22 and 27)

Result: Appeal allowed. Appellant discharged.