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2010 (14) SCC 641
Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE DR. JUSTICE MUKUNDAKAM SHARMA
Mohd. Farooq Abdul Gafur & Another
Versus
State Of Maharashtra
Criminal Appeal Nos. 85-86 Of 2006 With Criminal Appeal No. 87, 91-94 Of 2006
Decided on: 06-08-2009
(1980) 2 SCC 684; (2009) 7 SCALE 341-Relied on.
Criminal Law-Death sentence-Assessment of rarest of the rare case is incomplete without coming to conclusion that lesser alternative is unquestionably foreclosed-Selection of Life Imprisonment as a lesser alternative can not be deemed to be unquestionably foreclosed till the time objective fairness standards as to sentencing process are attained with regard to capital sentence. (Paras 7 to 9)
(2000)1 SCC 471; 2006(13) SCALE 467; 2008 10 Scale 669-Relied on.
Indian Penal Code, 1860-Section 302 r/w Articles 14 and 21 Constitution of India-Murder-Death sentence-Capital sentencing is not a normal penalty discharging social function of punishment-There has to an objective value to term rarest of rare, otherwise it will fall foul of Article 14-1t would not be proper to award death sentence where two Lower Courts disagreed on conviction. (Paras 11 to 17)
AIR 1999 SC 3700; (2002) 5 SCC 234; AIR 1988 SC 1785; (2000) 1 SCC 471; (2000) 4 SCC 515; (2000) 6 SCC 269; AIR 2002 SC 16; (2003) 8 SCC 224; AIR 2003 SC 886; AIR 2005 SC 1000-Relied upon.
Indian Penal Code, 1860-Section 302/149-Murder of three persons-Sentence of death commuted to life imprisonment by High Court-Unless a person is proven guilty, he should be presumed innocent-It is not a case where only sentence to which accused persons were entitled to that of death-All three accused stand on an equal footing and sentence to be imposed upon them must not differ-Appeals filed by State for imposition of death sentence dismissed-However, appeal against acquittal of two accused person allowed. (Paras 19, 20, 24 to 33)
AIR 1972 SC 1797; AIR 1978 SC 191; AIR 1980 SC 184; AIR 1981 SC 63; (1981) 2 SCC 300; (1981) 3 SCC 635; (1982) 1 SCC 352; 2009 (8) SCALE 622; 2009 (6) Scale 469-Relied on.
Per Mukundakam Sharma, J.
Maharashtra Control of Organized Crime Act, 1999-Sections 3(1), 3(2) and 2(e) r/w Sections 302, 307, 120B, 34 and 109 of Indian Penal Code, 1860 and Sections 25 and 35 of Arms Act, 1959-Murder of three persons-Death sentence commuted to life imprisonment by High Court- Two accused persons acquitted by Trial Court on wrong appreciation of evidence-Cogent and convincing evidence available against accused persons-Identity of accused persons proved beyond reasonable doubt in TIP-Confessional statement made by accused in substantial compliance with statutory provisions-Under MCOCA conviction could be based solely on basis of confessional statement itself and such conviction is also permissible on basis of confessional statement of co-accused-Evidence of injured witness cannot be discarded only on the ground that he did not state about incident to anyone for four days, when his evidence is corroborated and supported by other material evidence on record-Appeals dismissed.
(Paras 84(51), 86(53), 89(56), 92(59), 99(66), 104(71), 107(75), 108(76), 111(78), 112(79), 117(84),122(89), 131(98),132(99)]
(1999) 5 SCC 253; (2001) 10 SCC 109; (2003) 9 SCC 673; (2002) 5 SCC 234-Relied on.
Indian Evidence Act, 1872-Section 9-Test Identification Parade (TIP)-Substantive evidence is evidence of identification in Court-TIP does not constitute substantive evidence but can only be used for corroboration of statement in Court-It is primarily meant for purpose of helping investigating agency with an assurance that their progress with investigation is proceeding on right lines. [Para 108(76)]
(2007) 2 SCC 310-Relied on.
Arms Act, 1959-Section 39-Sanction for prosecution-Under Arms Act all that is required for sanction for prosecution u/s 39, is that persons to be prosecuted was found to be in possession of firearm, date or date on which he was so found in possession of firearm was without a valid licence-Order of acquittal passed by High Court in respect of two accused persons set aside. [Paras 121(88), 122(89) and 123(90)]
JUDGMENT :
Dr. Mukundakam Sharma, J.:—
These appeals are filed against a common judgment and order dated 17th December, 2003 passed by a Division Bench of the High Court of Judicature at Bombay in Confirmation Case No. 01 of 2001 and Criminal Appeal Nos. 661 of 2000; 679 of 2000; 753 of 2000 and 758 of 2000 and are being disposed of by this common judgment.
2. Theprosecution case in brief is as follows:-
One Milin Vaidya is the ex-Mayor of Mumbai. He belongs to the Shiv Sena, a political party, active in Maharashtra. On 4th March, 1999 at about 9.45 p.m. he alongwith 7-8 workers were sitting in an open shed by the side of Mori Road. He was guarded by his two body guards, namely, Constable Dinanath Pawar (PW-2) and Constable Sandeep Eaghmare (PW-3). They were armed with a 9 mm pistol and 9 mm carbine with 90 rounds respectively. The said shed house is an office of Shiv Sena 'Shakha'. At about 5 minutes past 10.00 p.m. a white Maruti car with a number plate MH-03-H-1749 came from the side of Mahim Railway Station. When it reached near the said open shed three persons started firing at Milind Vaidya and others who were sitting in the shed. One of the assailants was sitting alongside the driver on the front seat and the other two were sitting at the back seat. In the aforesaid incident three persons died while seven to eight persons, including Shri Milind Vaidya, injured.
3. The said Maruti car was being driven allegedly by Abdul Hasan (Accused No. 8) and Azzizuddin (Accused No. 7) was sitting by his side being armed with a AK-56 rifle. Mohd. Zuber (Accused No. 5) and Fazal Mohd. (Accused No. 6) were sitting on the rear side of the said car and were armed with 9 mm pistol. All the aforementioned three persons were said to have fired at Milind Vaidya and his associates indiscriminately, who were sitting in the shed.
4. Body guard Dinanath Pawar, who examined himself as PW-2, is said to have fired three rounds from his pistol on the Maruti Car. Other body guard namely Sandeep Waghmare (PW-3), is said to have chased the car upto some distance but did not fire any shot, although armed with a carbine. The incident of firing lasted for a few seconds whereafter the Maruti car sped away. Milind Vaidya sustained bullet injuries. Besides six others, namely – Nischal Krishna Chaudhari; Vinay Narayan Akare; Babu Kashinath Mangela; Niteen Narayan Mehar; Murugan V Tewar; and Vijay Kashinath Akare also sustained bullet injuries. Three of his associates, namely – Milind Gunaji Chaudhari, Vilas Gopinath Akare and Deepak Sitaram Akare succumbed to their injuries.
5. All the aforesaid victims were immediately rushed to Hinduja Hospital, Mumbai where they were admitted for examination and treatment. Post mortem examinations of the three deceased were carried out on the next day. They were found to have sustained bullet injuries on different parts of their body and lead pieces were recovered therefrom.
6. It is worthwhile to mention here that a similar attempt on the life of Milind Vaidya had also been made by unknown persons three months prior to the incident in question. At that time he had escaped with some injuries. He earlier used to have a body guard for his personal safety. However, after the said incident he was provided with three body guards during day time and two during night time. One of the guards was provided with a carbine weapon while the other two were provided with 9 mm pistols. Milind Vaidya used to sit alongwith his workers at night time in the shed adjoining the foot-path of Mori Road, Mahim for the purpose of hearing the grievance of the people. At that time he used to be escorted by his body-guards.
7. First Information Report was lodged on 4th March, 1999 at Mahim Police Station. The investigation of the case was taken up by PI Yashwant Puntambekar (PW-36). However, having regard to the gravity of the offence the Commissioner of Police, Mumbai, directed the Senior Police Inspector, CID–Unit IV, to take over further investi
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