Sagar Sahani Murder Case Pune MCOCA Court Judgement

1 MCOCA Spl. Case No. 1/06.
Received on : 22/2/2006.
Registered on : 22/2/2006.
Decided on : 7/12/2012.
Duration : 6Yrs. 9Ms. 15Ds.
Exh.
IN THE SESSION COURT, PUNE, At : PUNE.
(Before Shri. S.P.Tavade, Additional Sessions Judge, Special
Court designated under Maharashtra Control of Organised
Crime Act, 1999, (MCOCA), Pune.)
MCOCA Special Case No. 1/2006.
State of Maharashtra,
(Through Pimpri police station.) ..Complainant.
-Vs-
1] Mohammed Ali Abbas Ali,
age 29 yrs., occu. Nil ,
R/o Sitaram Building,
Block No. 4, Mumbai,
Originally from Kasargoud, Kerala,
2] Prasad Jagannath Shetty,
Age 30 yrs., occu. Labour,
R/o Samta Baroda,
originally from Karnataka,
3] Jagmalsing Bhuraram Choudhary,
age 34 yrs., occu labour,
R/o Near Gotri police station,
Gujrath,
Originally from Rajasthan,
4] Chhotu @ Arvind Vitthalbhai Choudhary @ Patel,
Age 34 yrs., occu. Driver,
R/o Samta Subhandpura,
Baroda,
5] Bhikubhai Dayaram Thanki,
Age 44 yrs., occu. business,
R/o Panchvati Society, Porbandar,
Gujrath,
6] Jitendra Shantilal Modha,
Age 37 yrs., occu. Hotel,
R/o 11/2, Vishal Chaitanya Society,
Kasarwadi, Pune,
Originally from Porbandar, Gujrat,
7] Samantbhai Boga Gadhvi @ Kariya,
Age 40 yrs., occu. Driver,
R/o Virabhai chawl, Porbandar,
Gujrat,
8] Ajay Parvat Gadhvi,
Age 33 yrs., occu. Labour,
R/o Moftiyapura,
Behind Rajaram Petrol pump,
Rajkot, Gujrat,
9] Dinesh Kasanbhai Tukadia,
Age 32 yrs., occu. Rickshaw driver,
R/o Kamgar chowk, Porbandar,
Gujrat,
10] Chhotu Ghisaiwala @ Ravitsing Savindersing
Bhadoriya @ Rajput,
Age adult, occu. Labour,
R/o Umraithga, Dist. Agra,
Uttar Pradesh,
11] Nitin Shantilal Modha,
Age adult, occu. Nil,
R/o Kasarwadi, Pune. .. Accused.

Offence under Sections 120-B, 164-A, 344,
302,201, 392, 404 r/w 120-B of IPC and in
the alternatively r/w S. 34 of IPC and
under section 3(1)(i), 3(2) and 3(4) of
Maharashtra Control of Organised Crime
Act, 1999 (MCOCA).
Appearance :
Shri. V.M. Shah Spl. APP, for the State.
Shri. D.K.Pawar, Advocate for accused No.1.
Shri. V.B.Koshe, Advocate for accused Nos. 2,5,6,10 and 11.
Shri. P.B. Birajdar, Advocate for accused No. 3.
Shri. Vipul Dushing, Advocate for accused No. 4.
Shri. S.S. Bhagwat, Advocate for accused Nos. 7,8.
Shri. R.L.Mate, Advocate for accused No. 9.
-J U D G M E N T-
(Decided on December 7, 2012.)
1] The accused in dock, are facing trial for having committed
offences punishable under sections 120-B, 164-A, 344, 302,201, 392,
404 r/w 120-B of IPC and in the alternatively r/w S. 34 of IPC and
under section 3(1)(i), 3(2) and 3(4) of Maharashtra Control of Organised
Crime Act, 1999 (MCOCA).
2] The facts giving rise to the prosecution case, can be
summarized as under :
The complainant Satinder Sahani is resident of Pune. Since the
year 2000, he runs business of car dcor, in the name and style as, 'A-
1 Motors and Car Decors' at Nasik approach road on old Pune-Mumbai
highway. Prior to that, he was engaged in sale of lotteries since
1992. The said business was carried in partnership with his cousin
Sudhir Sahani. The shop of Car Decors is situated two shops after
Hotel Prachi. The said Hotel was owned by deceased accused
Shantilal Modha. Shantilal Modha and his son Jitendra Modha (A-6)
were running the said hotel. The accused Nitin Modha (A-11) used to
visit said hotel. The brother-in-law of accused Jitendra Modha and
Nitin Modha, namely, Bhikubhai Thanki, (A-5), also used to visit hotel
Prachi.
3] Complainant Satinder Sahani was having two sons, including
deceased Sagar and a daughter. In the year 2005, they were taking
education. Deceased Sagar was assisting Complainant in his business
of car-decor. The Nephew of Complainant, viz. Sachin Anand also
used to help him in his business.
4] On 14/8/05, the Complainant had been to Mumbai for his
business and shop was opened by Sagar at 10 am. On that day, in
the evening Complainant returned back to Pune.. At about 8.30 pm,
Complainant called Sagar on his cell phone and told him to bring
food from Hotel Kundan, Pimpri, run by his relative. Complainant was
waiting for Sagar till 10 pm. He called Sagar on his cell phone, but it
was switched off. Thereafter he gave call to Hotel Kundan, where Amit
was present who disclosed him that Sagar had been to his hotel and
after collecting food packet left his hotel at about 9.15 pm. The
Complainant also inquired Amit about Hitesh Chaddha and came to
know that he was out of hotel. The Complainant requested him to ask
Hitesh to call him, after he returns. Thereafter within 10-15 minutes,
Complainant received call from Hitesh and on inquiring him about
Sagar, he told him that Sagar had collected food parcel and went away
about half an hour. The Complainant was waiting for Sagar till 11 pm.
As Sagar did not return home, the Complainant went to hotel Kundan
and made inquiry with Hitesh. The Complainant also came to know
that after collecting food packet, Sagar was to meet his friend. Hence,
Complainant made inquiry with friends of Sagar, viz. Jabbal, Rishi
Sahni, Sourabh, etc. on phone and came to know that Sagar did not
meet them. Then Complainant went to Bhel chowk, Nigdi,
Pradhikaran, where Sagar always used to chitchat with his friends, but
Sagar was not found. Thereafter he asked Sagar's friends and his
relatives to search for Santro car bearing No. MH-16/E-2104 of Sagar.
He also told them to make inquiry whether Sagar met with an
accident and to search him in hospitals in nearby area. But in spite of
his efforts, Sagar was not traced. Hence, he approached police and
informed about missing of Sagar.
5] At about 2.30-2.45 am on 15/8/05, Complainant received call
on his cell phone No. 9823055301. Caller was talking with him in Hindi
language, who told him that, =|= = | ===| = |= = | =|==| r=|=
== == = = == |=i==| ==|==i =||=|=| =i =| = ====| =|= =|== |==
==|= | =| The Complainant asked his name, but he told that he
was calling from Karachi. The Complainant told him that he is not
millionaire, he has meager income. But, caller told him that = =| ==
=| =|r= = |= = Thereafter call was disconnected. The Complainant
checked the incoming call number as 008821621364636.
6] In the morning at about 6 am, Complainant again called his
relatives and friends and formed their three groups to trace out Sagar
and sent them to search the car of Sagar at Katraj bypass highway,
Nasik highway and old Mumbai-Pune highway. At about 7 am, his
nephew Dhiraj informed him that Santro car of Sagar was found near
Somatane approach road on old Mumbai-Pune road. Accordingly, it was
informed to police. The Complainant realized that his son was
abducted for ransom and there would be danger to his life, hence
Complainant did not give complaint to police till 19/8/05. The
Complainant was receiving calls from abductor. The Complainant was
insisting the caller to have his conversation with his son Sagar, but he
was not allowed do so. Ultimately, on 19/8/05, complaint came to be
lodged. On the basis of of complaint, C.R. No. 562/05 came to be
registered and investigation of the crime was given to PI Rajendra
Joshi.
7] On 20/8/05, Complainant received call from abductor informing
that he had recorded conversation of Sagar and said Audio Cassette
was kept below the Eucalyptus tree inside Khandoba temple, Akurdi.
The Complainant asked his cousins Sudhir and Suresh to visit said
place. Said information was also given to police. Police took Sudhir
and Suresh to Khandoba temple. Sudhir went inside temple and found
cassette as per information and it was brought to police station. The
conversation was heard by Complainant and police. The Complainant
and his cousin Sudhir identified the voice of Sagar recorded in the
cassette. At that time, nephew of Complainant, Sachin told him that
Sagar was having two mobile phones viz. 9822796036 and
9822796147. It was also informed to him by Sachin that Sagar had
given his mobile number 9822796147 to his friend Taniya and she was
using the same. The said information was also given to police.
8] On 21/8/05, the Complainant had discussion with his family
members. As six days had passed, hence Complainant decided to
settle the matter with abductors by paying some amount to them.
Accordingly, Complainant told police and requested them not to
interfere in it for the sake of life of his son. Accordingly, his statement
was recorded. On 23/8/05, Complainant received call of abductor and
he negotiated with him and reduced ransom amount from two crores to
eighty lacs and then came down to fifty lacs and ultimately it was
settled to fifteen lacs. The abductor told Complainant that the amount
of Rs. 15 lacs should be paid at Karachi, through Havala. The
Complainant was not knowing as to how to pay the amount at
Karachi.
9] On 24/8/05 the abductor again called Complainant and told him
that he should contact Kadarbhai at Mumbai. Theabductor also gave
him cell phone number of Kadarbhai as 9819733195. Accordingly,
Complainant called Kadarbhai on the said number. The Complainant
received address of Kadarbhai as Third floor, Sitaram building,
Crofferd Market, Mumbai. On the same day, at about 2.30 pm,
Complainant along with Sudhir Sahani proceeded to Mumbai in car. At
about 5.30 pm, he reached third floor of Sitaram building. At the
entrance of the building, they inquired with one boy about Kadarbhai
and he was then asked to visit cabin situated on third floor.
Accordingly, they went inside the cabin where one person aged about
35 years was present. He asked Complainant the purpose of his visit.
The Complainant told him that he wanted to send Rs. 15 lacs to
Karachi. The Complainant also told said person that he had come
from Pune. The said person asked code number, but Complainant was
not knowing the code number. The Complainant told him that he was
to send money to Karachi, urgently. Said person asked the name to
whom money was to be sent. The Complainant disclosed that he
wanted to send money to Kadarbhai. The Complainant came to know
the name of said person as Shamsuddin, who was brother of
Kadarbhai. Thereafter Shamsuddin gave 4-5 calls to Kadarbhai.
Thereafter Complainant had a talk with Kadarbhai and he was asked
to pay amount to Shamsuddin. Accordingly, Complainant paid Rs. 15
lacs to Shamsuddin. It contains 18 bundles of currency notes of Rs.
500/- and 6 bundles of currency notes of Rs 1,000/-. Said
Shamsuddin called the boy who was sitting outside the cabin and said
boy and Shamsuddin counted the notes and accepted the same.
10] The Complainant demanded receipt of said amount from
Shamsuddin who gave him one chit wherein it was written as
Syam, 15/= O.K. 24.08. Thereafter Complainant and his cousin
returned to Pune. On the way, Complainant received call from
abductor who told him that he would get money on next day, so, Sagar
would be released on 25/8/05. The Complainant protested said act of
abductor. In the evening of 25/8/05,abductor again called Complainant
and told that he would get amount at Dubaii within half an hour and
thereafter Sagar would be released within three hours. However, even
after payment of ransom amount, Sagar did not return till 28/8/05.
11] On 26/8/05, at 5.30 pm, one Bhimjubhai Radiya, resident of
Mandava, Tal. Kaprala, Dist. Balsad, noticed one dead body near a
place called as Chondicha Chatta. It was in forest area. On seeing the
dead body he went to Dy. Sarpanch Kisan Konti, of village Mandvi and
informed him about it. Thereafter Dy. Sarpanch took him to house of
Sarpanch Bistubhai Ghotiya, but he was not present in house. Hence on
next day on 27/8/05 Bhimjubhai, Kisan and Bistubhai went to Kaprala
police station and informed police about dead body. Thereafter all of
them rushed to the spot along with police. After preparing inquest
panchanama of dead body, it was sent to the Hospital for postmortem
examination. Thereafter Bistubhai lodged FIR, on the basis of which,
CR No. 56/05 was registered at Kaprala police station. A wireless
message was sent to all police stations, about the said crime and
finding of dead body. Accordingly, Crime Branch, Pune, received
information about finding of dead body at Kaprala.
12] On 28/8/05, cousin of Complainant, Sudhir Sahani received
telephonic call from Crime Branch informing him that one dead body
was located in Gujrat. The description of said dead body was matching
with Sagar, hence, Sudhir decided to visit Gujrat. Accordingly, he went
there along with police. Sudhir went to one hospital at Valsad, where
one dead body was shown to him in mortuary. He identified it as of
Sagar. Sudhir brought dead body to Pune on 29/8/05. The Complainant
identified the said dead body as of Sagar and then his funeral had
taken place.
13] On 29/8/05, PSI Deore of Crime Branch, Pune, went to Mumbai
and took search of office of Shamsuddin and Mohammad Abbas and
seized some documents and arrested them.

14] The Kaprala police station dispatched seized clothes found on
the dead body as well as other articles found on the spot to Crime
Branch, Pune. The said clothes and articles were identified by
complainant and relative of deceased Sudhir Sahani. The seized clothes
and other articles of deceased were sent to C.A at Pune, for
examination. On 5/9/05, investigating officer of Baroda, received
secret information that one Sumo was used in the crime and it was
parked in front of house of Ajit Kahar. Hence, with the help of Gujrat
police, investigating officer rushed there. Mobile forensic lab and
finger-print experts were also informed by investigating officer. They
took samples of mud, blood etc. and articles found in the jeep were
also seized under panchanama. On 8/9/05, accused No. 2, Approver
Narayan Jameria and accused Nos. 3 and 4 came to be arrested with
the help of ATS, Ahmedabad.
15] Investigating officer also collected information of Prachi Hotel. He
also realized about involvement of accused No.1 in the crime. On
10/6/05 deceased accused Shantilal Modha and Jitendra Modha came
to be arrested.
16] On 11/9/05, investigating officer obtained specimen handwriting
of accused Shamsuddin Kunni under panchanama. He also collected
the sample of blood, saliva and hair of accused Nos. 2 to 5 and
Approver. During investigation, investigating officer also revealed that
number of seized Sumo car, bearing No. GJ-14/E-4992 was false and its
correct number was GJ-11/E-4992. Accordingly, investigating officer
called information from District Transport Office, Junagadh. It was
revealed that said Sumo jeep was owned by Bhikubhai Thanki (A 5).
The articles seized in the jeep were sent to C.A for examination. The
investigating officer also obtained blood samples of accused No. 2 and
Approver for DNA test. The investigating officer also found two toll
receipts in the Sumo jeep. He wrote a letter to Narmada Infrastructure
Constructions Enterprises and national highway authorities and sought
information about the same and also received it.
17] On 15/9/05, accused No. 2 Prasad Shetty made voluntary
statement which was recorded under panchanama. In pursuance of
the said statement he produced knife from the house of Raja Pilley
which was seized under panchanama.
18] Investigating officer wrote letter to UAE Exchange and Financial
Services Ltd., Baroda, Gujrat, and obtained information regarding
transfer of amount to accused No. 11 by absconding accused
Mohammad Ali. He received the doc Pooja ument produced by
accused No. 2 and 11 from UAE, which was seized under panchanama.
Investigating officer also seized the extract of register of hotels
Siddharth, Pooja, Deepmala, Divya Palace. Investigating officer also
recorded statements of employees of said hotels and other witnesses.
The investigating officer also obtained specimen handwriting and
signatures of accused Nos. 2 and 5 and Approver under panchanama
and sent it to Handwriting Expert along with disputed handwriting
seized from the hotels. Investigating officer also sought information
regarding call details made by Accused No. 4 to accused No. 11 while
returning from Pune and Baroda. On 26/9/05, accused No. 1 came to be
arrested. On the same day, investigating officer requested Tahsildar,
Haveli, Pune, to hold Test Identification Parade in respect of accused
Nos.2 to 6 and Approver. Investigating officer also received
investigation papers from ASI Kale, who carried out investigation at
Porbandar. He also seized Ciena car from Purushottam buva, who
was brother-in-law of accused No. 9.
19] On 30/9/05, investigating officer sent seized knife and clothes of
accused and other articles to C.A for examination. Thereafter from
time to time, investigating officer recorded statements of witnesses. On
6/10/05, he again wrote a letter to Tahsildar, Haveli, to hold Test
Identification Parade for rest of the accused persons. Investigating
officer also collected blood samples of Complainant and his wife for
DNA test of deceased Sagar.
20] During the course of investigation, investigating officer revealed
that absconding accused Sayyad Abed Husein Alibhai and Vickey @
Aftab Alam Mohammad Ayub, resident of Azamgad, were involved in
the crime. Both of them were having criminal record, hence, he
submitted proposal to Competent Authority for invoking the provisions
of MCOC Act. The Competent Authority granted permission to invoke
provisions of MCOC Act, and the investigation of the same was given
to ACP Sanjay Jadhav.
21] On 22/11/05, ACP Sanjay Jadhav received investigation of CR No.
267/05. He sought extension of time for carrying out investigation. He
sent letter to Addl. Commissioner, Pune, for recording confessional
statements of Approver and accused No. 3 and accordingly, said
statements were recorded by DCP Ghurye and Vitthal Jadhav,
respectively. He referred accused No. 4 to Addl. Commissioner of
Police for recording his confessional statement. Accordingly, it was
recorded by DCP Shri. A.D. Shinde. The voice samples of accused were
also taken and sent to Forensic Lab at Chandigad. He recorded
statement of PI Agashe, Ovhal, API Pilley and PSI Gadhve. He directed
PI Ovhal to investigate in respect of offence registered against
absconding accused Sayyad Abed Husein Alibhai and Vickey @ Aftab
Alam Mohammad Ayub, resident of Azamgad. Accordingly, PI Ovhal
submitted his report to PI Joshi. He submitted proposal seeking
sanction to prosecute accused under MCOCA. Accordingly, Competent
Authority accorded sanction to prosecute under MCOCA. On 24/2/06,
he referred accused No. 10 Ravit sing to Competent Authority for
recording his confessional statement, accordingly, DCP recorded his
confessional statement. He also requested Tahsildar to conduct Test
Identification Parade of accused No.10. After his arrest, he sought
permission to prosecute him under MCOCA, accordingly, he received
sanction. On 8/8/06 he requested Competent Authority to record
confessional statement of accused No. 11 and accordingly, it was
recorded by Competent Authority. He also requested Tahsildar to hold
Test Identification Parade in respect of accused No. 2 and accordingly, it
was held and report was submitted. Investigating officer also sought
sanction to prosecute accused No. 11 under MCOCA and it was
accorded. After receiving sanction for prosecution of accused under
MCOCA, he filed charge-sheet against accused before this Court.

22] As the offences under MCOC Act, are exclusively triable by the
Special Court under Maharashtra Control of Organised Crime Act,
1999, (MCOCA), Pune, hence, the case is committed to this Court, u/s
209 of Cr.P.C. During the course offending tempo trial, original
accused No.1 Shamsuddin was released on bail and he subsequently
absconded. Similarly, original accused No.4 Shantilal Modha passed
away. Accused Alibhai was arrested by Hyderabad police, hence, his
case is separated. Original accused No. 4 Narayan Jameria applied for
pardon. Accordingly, he was granted pardon u/s 301 of Cr.P.C.
23] On the appearance of accused, my learned predecessor has
framed charge against accused at Exh. 188. The accused pleaded
not guilty and claimed to be tried. The defence of accused is of total
denial. They also claimed that, deceased was indebted and he used to
receive threat calls prior to the incident. It is also their case that,
deceased might have killed by his creditors.
24] In order to prove the charge against accused, prosecution has
relied on the evidence of as many as 55 witnesses. In support of
their defence accused led evidence of 8 witnesses.
25] Upon recording the statement of accused, u/s 313 of Cr.P.C., I
heard learned Special APP Shri. Shah, on behalf of State and learned
advocate Shri. D.K.Pawar, Shri. Vidyadhar Koshe, Shri. Birajdar, Shri.
Dushing, Shri. Bhagwat and Shri. Mate, Advocate for accused,
respectively.
26] Having considered the evidence on record, and the defence of
accused, following points arise for my determination and I record my
findings thereon as under, for the reasons discussed below :
Points Findings.
1] Whether prosecution prove that
death of deceased Sagar was
homicidal ?

Yes.
2] Does prosecution prove that
accused No. 2, 4, 5, 6, 10 and 11
along with deceased accused
Shantilal Modha, Approver
Narayan Jameria, and absconding
accused Alibhai alias Sayyed Abed
Husein, Aftab Alam Mohammad,
Ayub Alkam alias Vickey alias
Laddhan alias Gufran, agreed to do
or caused to be done an illegal act
to wit to abduct Sagar Satinder
Sahani for ransom and to commit
his murder ?
Yes.
3] Does prosecution prove on
14/8/2005 at about 8 pm, at
Ambedkar chowk, Pimpri, accused
No. 2, 4, 5, 6, 10 and 11 along with
deceased accused Shantilal Modha,
Approver Narayan Jameria, and
absconding accused Alibhai alias
Sayyed Abed Husein, Aftab Alam
Mohammad, Ayub Alkam alias
Vickey alias Laddhan alias Gufran,
in pursuance of criminal
conspiracy, abducted Sagar
Satindar Sahani and kept him in
detention, after such abduction
threatened him to cause his death
and by said conduct gave rise to
reasonable apprehension of death
and demanded Rs. Two crores from
the complainant and after
negotiations accepted Rs. 15 lacs
from him ?

Yes.
4] In the alternatively, does
prosecution further prove that on
the aforesaid day, time and place,
accused Nos. 2,4,5, 6, 10,11, along
with deceased accused Shantilal
Modha, and absconding accused,
in furtherance of their common
intention,abducted Sagar Satindar
Sahani and kept him in detention,
after such abduction threatened
him to cause his death and by said
conduct gave rise to reasonable
apprehension of death and
demanded Rs. Two crores from the
complainant and after negotiations
accepted Rs. 15 lacs from him ?

Does not survive.
5] Does prosecution further prove
that accused Nos. 2 to 11 along
with deceased accused and
Approver, during 14/8/05 to 24/8/05
at various places in Gujrat State,
and during the course of same
transaction, abetted offence of
wrongful confinement of abducted
person Sagar Sahani ?

Partly yes against accused Nos.
2,3,5,6,10 and 11.
6] Does prosecution prove that, on
25/8/05 at about 7 pm, or
thereabout, in the forest near Wapi,
Gujrat, accused Nos. 2,10,11, in
pursuance of criminal conspiracy,
hatched between them, committed
murder by intentionally and
knowingly causing death of Sagar
Sahani ?
Yes.
7] In alternatively, does prosecution
prove that, on 25/8/05 at about 7
pm, or thereabout, in the forest
near Wapi, Gujrat, accused Nos.
2,10,11, in furtherance of their
common intention, committed
murder by intentionally and
knowingly causing death of Sagar
Sahani ?

Does not survive.
8] Does prosecution prove that, on
thereabout, in the forest near
Wapi, Gujrat, accused Nos.
2,10,11, in pursuance of criminal
conspiracy, accused knowing or
having reasons to believe that, an
offence of murder of Sagar Sahani,
has been committed by them,
caused disappearance of certain
evidence namely, threw dead body
of Sagar Sahani, in the forest,
between Nasik-Wapi highway, with
intention to screen themselves
from the legal punishment ?

Yes.
9] In the alternatively whether
prosecution proves that, on
thereabout, accused Nos. 2,10,11
in furtherance of their common
intention, they knowing or having
reasons to believe that, an offence
of murder of Sagar Sahani, has
been committed by them, caused
disappearance of certain evidence
namely, threw dead body of Sagar
Sahani, in the forest, between
Nasik-Wapi highway, with
intention to screen themselves
from the legal punishment ? ?

Does not survive.
10] Does prosecution prove that
accused No. 11, during the period
of abduction of Sagar Sahani,
committed robbery of cash amount
of Rs. 24,000/- from the person of
Sagar Sahani ?
Yes.
11] Does prosecution prove that on
25/8/2005, in forest on Wapi, Nasik
highway, accused No. 11,
dishonestly misappropriated
immovable property, viz. Gold
bracelet and gold chain from the
dead body of deceased Sagar
Sahani , who was in possession of
said property, at the time of his
death ?
Yes.
12] Does prosecution further proves
that , accused Nos. 2,4,5,6, 9 to 11,
along with deceased Shantilal,
Approver Narayan and absconding
accused, during the aforesaid
period and places, and during the
course of same transaction, being
members, of organized crime
syndicate, acted singally or jointly,
either as a member or of a
organized crime syndicate or on
behalf of such syndicate, with use
of violence, intimidation, or other
unlawful means, committed
abducting for ransom and
murdered Sagar Sahani by his
wrongful confinement for their
pecuniary gain ?

No.
that , accused Nos. 1 to 11, along
with deceased Shantilal, Approver
Narayan and absconding accused,
during the aforesaid period and
places, and during the course of
same transaction, accused being
members, of organized crime
syndicate, acted singal-ly or jointly,
either as a member or of a
organized crime syndicate or on
behalf of such syndicate, conspired
and attempted to commit and
advocated, abetted, and knowingly
facilitated, commission of organized
crime and an act preparatory to
organized crime by abducting and
committing murder of Sagar Sahani
for ransom ?

Partly Yes, against accused Nos.
2,4,5,6,10 and 11.
that , accused Nos. 1 to 11, along
with deceased Shantilal, Approver
Narayan and absconding accused,
during the aforesaid period and
places, and during the course of
same transaction, in pursuance of
criminal conspiracy, formed a group
acting either singal-ly or
collectively, as a syndicate or gang,
indulging in activity of organized
crime syndicate ?
Yes.
15] What order ? As per final order.

-REASONS-
27] It is the basic case of prosecution that deceased Sagar was
abducted in the night of 14/8/05 and then he was taken to different
places at Gujrat. An amount of Rs. 2 crores was demanded as ransom
from the complainant for release of Sagar. It is also the case of
prosecution that complainant paid Rs. 15 lacs towards ransom, but
Sagar was not released. Ultimately, he was killed in the night of
25/8/05 at village Kaprala, Gujrat. In view of the above story, it is
incumbent upon the prosecution to prove abducting of deceased Sagar
in the night of 14/8/05. To the prove the abducting, prosecution has
heavily relied on the evidence of complainant Satinder Sahani (PW 2),
his cousin Sudhir Sahani (PW 3) and Suresh Rupesha (PW 4), and
investigating officer Rajendra Joshi (PW 54).
28] The complainant Satindar Sahani deposes that he had two sons
and a daughter. In the year 2005, they were taking education. Sagar
was his elder son who was studying in Wadia College and he was also
assisting him in the business of car dcor, which was run in the name
and style as 'A-1 Motors and Car Decors' at Nasik approach road on old
Pune-Mumbai highway. Prior to that, he was engaged in lottery
business. He was running the said business along with his cousin
Sudhir Sahani, in the name and style as Sahani Lotteries. He further
deposes that, deceased accused Shantilal Modha and his son Jitendra
Modha (A-6) were running Hotel in the name style as Prachi Hotel,
nearby his shop. The accused Nitin Modha (A-11) also used to visit
said hotel. Similarly, the brother-in-law of accused Jitendra Modha and
Nitin Modha, namely, Bhikubhai Thanki, (A-5), also used to visit hotel
Prachi. The defence has not denied that complainant was running
business of car dcor in the name and style as 'A-1 Motors and Car
Decors'. It is also not denied that deceased accused Shantilal and
accused No. 6 Jitendra Modha were running Prachi hotel near the
complainant's shop of car decor.
29] The complainant further deposes that, on 14/8/05 he had been to
Mumbai for his business work. He had asked Sagar to open the shop.
On the same day, 7.30 pm, complainant returned home from
Mumbai. At 7.30 pm he called Sagar on his cell phone and told him to
bring food from Hotel Kundan, Pimpri. He further deposes that, till
10 pm he waited for Sagar, but he did not come. Hence, he gave call
to Hotel Kundan, and talked with Amit Anand, who disclosed him that
Sagar had been to his hotel and after collecting food packet left his
hotel at about 9.15 pm. Thereafter, he had talk with the owner of
Kundal hotel namely Hitesh Chaddha, who also told him that Sagar
had collected food parcel and went away about half an hour. He
further deposes that, he waited for Sagar till 11 pm, but Sagar did
not return home. Hence, he went to hotel Kundan and made inquiry
with Hitesh and came to know that after collecting food packet, Sagar
was to meet his friend. Hence, complainant made inquiry with friends
of Sagar on phone and came to know that Sagar did not meet them
in the said evening. On inquiry with friends of Sagar, he could not
trace him. He further deposes that, Sagar was having Santro car
bearing No. MH-16/E-2104. This part of evidence is simply denied by
accused, but nothing worth has come on record, to disbelieve the
theory of complainant.
30] Complainant further deposes that, in the early morning of
15/8/05, at 2.30 to 2.45 am. He received call on his mobile. Caller
told him that he was calling from Karachi. He told him that, Sagar was
in his custody and directed him to make arrangement of Rs. 2 crores.
The complainant told him that he is not having that much amount
with him, on which caller told him that it was none of his business and
he gave him time till next day. The said call had come from mobile
number 008821621364636. The complainant further deposes that, in
the morning of 15/8/05, he called friends of Sagar and his cousin
Sudhir Sahani and formed their three groups to trace out Sagar. One
group was sent to search Sagar at Katraj bypass highway, other
group was sent to Nasik highway and third group was sent to old
Mumbai-Pune highway. At about 7 am, his nephew Dhiraj Sahani
informed him that Santro car of Sagar was found in abandoned
condition near Somatane approach road on old Mumbai-Pune road. He
further deposes that, on the basis of said information, he went to
police station and lodged missing report of Sagar (Exh. 249).
31] On going through the missing report (Exh.249), it appears that,
complainant had alleged that in the night of 14/8/05, Sagar did not
return home. Thereafter he received telephonic call and abductor
demanded Rs. 2 crores. He also threatened him that if he would lodge
the complaint with police, he would cut the hands of Sagar. Hence, it
appears that, the complainant, for the security of his son Sagar, did not
lodge complaint, but he gave information of missing of Sagar to
police. Therefore, it can be said that complainant had fear in his mind
that if police takes action, then there would be danger to the life of his
son Sagar, therefore, he gave information to police that they should
be slow in action.
32] The complainant further deposes that, on 16/8/05, 17/8/05 and
18/8/05, he received threat calls from the same person from same
mobile number. But, caller was demanding amount of ransom. Hence,
he requested him to have conversation with Sagar on telephone. He
further deposes that, on 19/8/05, he lodged complaint against the
culprits(Exh. 250). He further deposes that, on 20/8/05 he received
call from abductor informing that he had recorded conversation of
Sagar and said Audio Cassette was kept below the Eucalyptus tree
inside Khandoba temple, Akurdi. The complainant asked his cousin
Sudhir Sahani and nephew Suresh Rupesha to visit said place. Said
information was also given to police. Accordingly, police took Sudhir
and Suresh Rupesha to Khandoba temple. Sudhir went inside temple
and found one box sealed with red tape. The said box was opened, it
was containing cassette, which was played in the police station. He
further deposes that, he and Sudhir Sahani identified the voice of
Sagar, recorded in the cassette. On this point, Sudhir Sahani also
deposes that, on 20/8/05, he had been to Crime Branch office along
with complainant and Suresh Rupesha, at that time, complainant
received telephonic call fromabductor. It was informed to complainant
that audio cassette containing conversation of deceased Sagar was
kept at Khandoba temple, Akurdi. Hence, he along with police and
Suresh Rupesha went there and found one packet wrapped in red tape
below the tree. He collecled the packet and showed it to police.
Thereafter they returned back to the office of Crime Branch and
packet was opened which was containing audio cassette. It was
played in the police station. He and complainant identified the voice of
Sagar.
33] In the cross-examination, witness has admitted that his
statement was recorded on 30/8/05. There is no mention of incident
alleged to have been occurred on 20/8/05 Ghurye. He also admits that,
incident of approaching Khandoba temple, bringing parcel to Crime
Branch office, and that audio cassette was being played and he
identified the voice of deceased occurred on 20/8/05, but it is not
mentioned in his statement. The omission is in respect of date of said
incident. It is mentioned in his statement that he had been to Crime
Branch office, at that time complainant received telephonic call from
abductor who gave information about cassette, accordingly he went to
Khandoba temple , received parcel , brought it to police station and
played it in the police station. therefore, it can be said that omission
is in respect of date. The complainant had specifically stated in his
ocular evidence that he received call ofabductor on 20/8/05, wherein
information regarding cassette was given to him. The said cassette
was brought to police station by Suresh Rupesha and Sudhir Sahani.
So, omission is in respect of the date of said incident which was
occurred on 19/8/2005 and not on 20/8/05.
34] On this count, evidence of Suresh Rupeja is also important. He
deposes that, on 20/8/05 he accompanied complainant to Crime
Branch office. At that time, complainant received call on his mobile
fromabductor, in his presence, complainant disclosed police that audio
cassette containing conversation of deceased was kept at Khandoba
temple, hence he went there along with Sudhir Sahani and police to
collect the cassette. Accordingly, on reaching the temple, he saw box
with red tape. It was picked up by him and handed over to police.
Police played the cassette wherein voice of Sagar was identified by
complainant. The said evidence of is simply denied by accused.
35] To support the evidence of complainant, Suresh Rupesha and
Sudhir Sahani, prosecution has also relied on the evidence of
investigating officer Rajendra Joshi (PW 54), who deposes that, on
19/8/05, complainant came to the police station and lodged complaint
(Exh. 250),on the basis of which CR No. 562/05 came to the registered
and he received investigation of the same. He further deposes that,
on the same day, he received information from complainant that,
audio cassette containing voice of Sagar was kept Khandoba temple
at Akurdi. Hence, he along with Sudhir Sahani and Suresh Rupesha
went there where Sudhir Sahani found cassette in the temple, which
he handed over to him. He seized said cassette under panchanama
(Exh. 483). The said cassette was played in the office of Crime Branch .
On hearing the same, complainant and Sudhir Sahani identified the
voice of Sagar recorded in the cassette. The contents of cassette were
recorded in the body of panchanama. The cassette was also played in
the Court. The conversation recorded therein is reproduced in the
panchanama.
36] There is discrepancy in the date of receiving cassette. According
to complainant , he received telephonic call of abductor on 20/8/05 in
the Crime Branch, accordingly cassette was seized under panchanama
on the same day. Similar version is given by Sudhir Sahani and
Suresh Rupesha, but investigating officer Rajendra Joshi, has
categorically deposed that, on 19/8/05 complainant had come to Crime
Branch for lodging complaint and after lodging complaint, complainant
received telephonic call from abductor who gave him information
regarding keeping of audio cassette in Khandoba temple, accordingly,
he went there and found the cassette which was seized under
panchanama. The date of panchanama is 19/8/05. It appears that, the
complainant, Sudhir Sahani and Suresh Rupesha have given incorrect
date of seizure of cassette. It appears from seizure panchanama that
cassette was seized on 19/8/05. The discrepancy in respect of the date
of seizure is not material. What is material, is receiving of cassette
containing the voice of Sagar. The complainant and Sudhir Sahani
categorically deposed that, they identified voice of Sagar recorded in
the cassette. On hearing the conversation, it appears that, Sagar was
under fear of death. He had requested complainant to pay the amount
to abductor for his release. He has also expressed his fear that if the
amount is not paid, the abductor may commit any wrong with him.
From the said conversation, it appears that, abductor had given
indication of his plan to extract money and in default, he may kill victim
Sagar. Therefore, it is established that in the night of 14/8/05,
deceased Sagar was abducted from Pimpri area along with his Santro
car which was found at Somatane phata. The said car was also seized
by police under panchanama (Exh. 483). The said fact is also not
denied by the defence. Therefore, it is proved that Sagar was abducted.
37] It is further come in the evidence of complainant that on 21/8/05
he had a discussion with his family members and they decided to
settle the matter with abductor by paying some amount towards
ransom. Accordingly, he told police and requested them not to
interfere in to the matter for the sake of life of his son. Accordingly,
his statement was recorded by police. He further deposes that, on
23/8/05, he had negotiations with abductor on mobile. The abductors
reduced the ransom from Rs. two crores to eighty lacs and then came
down to fifty lacs and ultimately it was settled to fifteen lacs. The said
fact is confirmed by accused in cross-examination in para 15 wherein
complainant admits that in audio cassette Sagar stated that the
amount of ransom was not paid, there was danger to his life. Therefore,
on 21/8/05 he took decision to rescue Sagar by paying amount to
abductor.
38] Complainant further deposes that, the abductor told him that he
wants the amount of Rs. 15 lacs at Karachi through Havala. The
complainant again told him that, he does not know how the amount
should be sent through Hawala, upon which, abductor told him that
he should send the amount through Hawala agent. He further deposes
that, on 24/8/05, he received call of abductor. The abductor repeated
that amount should be sent through Hawala agent. Complainant told
him that he is not aware about agent, upon it, abductor told him that
he would inform him about Hawala agent within short time and he
disconnected the phone. He further deposes that, within an hour
thereafter he again received call of abductor directing him to contact
one Kadarbhai at Mumbai. The abductor also gave him cell phone
number of Kadarbhai as 9819733195. Accordingly, he called Kadarbhai
on the said number. He received address of Kadarbhai as Third floor,
Sitaram building, Crofferd Market, Mumbai. On the same day, at
about 2.30 pm, complainant along with Suresh Rupesha proceeded to
Mumbai in car. At about 5.30 pm, they reached third floor of Sitaram
building. At the entrance of the building, they inquired with one boy
about Kadarbhai, who directed them to visit cabin situated on third
floor. Then he sat in the cabin. Thereafter, one person aged about 30-
35 years came there and asked the purpose of his visit. He told him
that he wanted to send Rs. 15 lacs to Karachi. He also told said
person that he had come from Pune. The said person asked code
number, but he was not knowing the code number. He told him that
he was to send money to Karachi, urgently. Said person asked the
name to whom money was to be sent. He told that person that he
wanted to send money to Kadarbhai. He came to know the name of
said person as Shamsuddin, who was brother of Kadarbhai. He told
him to arrange for the meeting with Kadarbhai, but Shamsuddin
disclosed him that Kadarbhai was sleeping and would awake within
one hour or so. Thereafter Shamsuddin gave 4-5 calls to Kadarbhai.
Thereafter Shamsuddin had a talk with Kadarbhai, but he did not
understand it as it was in some unknown language. Then Shamsuddin
went outside, at that time he received call of abductor who asked him
whether he had given the cash to Hawala agent. He told him that he
was sitting in the office of Hawala agent for about an hour and he was
not accepting the amount. Then after five minutes, Shamsuddin came
and asked to pay amount to him. Accordingly, he paid Rs. 15 lacs to
Shamsuddin, which were containing 18 bundles of currency notes of
Rs. 500/- and 6 bundles of currency notes of Rs 1,000/- respectively.
Thereafter Shamsuddin called the boy who was sitting outside the
cabin and said boy ( A1) and Shamsuddin counted the notes. He
further deposes that, while counting the notes, he received call of
abductor on his mobile and complainant informed abductor that
amount was paid to Shamsuddin. Then Shamsuddin talked with
abductor. Then he again talked with abductor who asked him to
return back and assured that Sagar would be released within 3-4
hours. He further deposes that, he asked Shamsuddin about the receipt
of money. Initially Shamsuddin refused to give receipt, but upon his
resistance Shamsuddin issued one chit wherein it was written as
Syam, 15/= O.K. 24.08. Thereafter he along with his cousin returned
to Pune. On the way, he received call from abductor who told him that
he would get money on next day, so, Sagar would be released on
25/8/05. He protested said act of abductor. Abductor told him that he
would call him in the night of 24/8/05, but he did not call him.
39] Complainant further deposes that, on 25/8/05, abductor again
called him and told that he would get amount in Dubai within half an
hour and thereafter Sagar would be released within three hours. He
further deposes that, thereafter neither he received call from abductor
nor Sagar returned home.
40] The evidence of Suresh Rupesha is also corroborative to the
evidence of complainant on the point of payment of ransom to
Shamsuddin. According to him, on 24/8/05, he had been to the house
of complainant and in his presence at about 1.30 to 2 pm,
complainant received call from abductor on his mobile and an amount
of Rs. 15 lacs were finally settled as ransom between complainant and
abductor. He further deposes that, complainant requested him to
accompany him to Mumbai to give amount of ransom. Accordingly, he
along with complainant and traveled to Mumbai. He reached to Sitaram
building at about 5.30 to 6 pm. When he reached that place, one
person was sitting outside the cabin, who informed complainant in
respect of Kadarbhai. He further deposes that, the said person went
inside the cabin and then asked him to go inside the cabin. After some
time, one person came inside the cabin who asked the purpose of
their visit. The complainant informed him that he wanted to pay Rs.
15 lacs. The said person stated that Kadarbhai was sleeping and he
would accept the money as and when Kadarbhai wakes up. He further
deposes that, initially said person introduced himself as Kadarbhai
and subsequently he told his name as Shamsuddin. Thereafter,
Shamsuddin went outside the cabin and returned within five minutes
and informed complainant that he received phone on his mobile and
accordingly complainant paid Rs. 15 lacs to Shamsuddin. Then
Shamsuddin called a person who was outside the cabin namely
accused No.1 Mohammed Ali Abbas Ali, and both of them counted the
amount. Thereafter Shamsuddin issued receipt of payment wherein it
was written as ' Syam, 15/= O.K.' He further deposes that, while
proceeding to Pune, complainant received call from abductor on his
mobile. The complainant pleaded the abductor to release Sagar on
that day, as he paid entire amount. The complainant was weeping at
that time. The abductor told complainant that he would release Sagar
on next day, after receipt of amount from the agent.
41] Witness Suresh Rupesha also deposes that pm 28/8/05 he
received call from Crime Branch and he was told that Sudhir Sahani
was proceeding to Gujrat along with police as dead body resembling
with that of Sagar was discovered. Police directed him to come on
next day morning and take the police to the place where they had paid
the amount of ransom. He further deposes that, on next day at 6.30
am, he went to Crime Branch. He along with Deore and other police
officers went to Mumbai. He took police to third floor Sitaram Building,
near Crofferd market, Mumbai and showed Shamsuddin @ Kadarabhai
and person who was standing outside the cabin and thereafter his
statement was recorded. In cross-examination taken on behalf of
accused No.1, witness admitted that at the time of discussion, he
along with complainant and Shamsuddin were present in the cabin.
So, it is admitted that Shamsuddin was present in the cabin and he
received the amount of ransom from complainant.
42] In the cross-examination Suresh Rupesha also admits that, he did
not visit Mumbai along with PI Pawar and others on 28/8/05. He also
admits that, he did not tell police that on 28/8/05 at 6 pm, he went
to Crime Branch office and then went to Mumbai along with police and
showed the place where complainant paid the ransom amount. The
omission is in respect of date only. In the statement, it is mentioned
that witness went to Mumbai along with police on 28/8/05. In fact, he
had been to Mumbai on 29/8/05 and said fact is revealed from the
panchanama of the spot (Exh. 455). The said panchanama is admitted
by defence. So, discrepancy in the date is not material to discard his
evidence.
43] The payment of ransom amount was denied by accused Nos. 2 to
11. But on behalf of accused No.1 it is suggested to complainant that
he simply counted the amount given by him. It is the case of
prosecution that accused No.1 Mohammed Ali Abbas Ali, who was
present outside the cabin of Shamsuddin, was called by Shamsuddin
for counting the amount of ransom. From the said suggestion, it is
aptly clear that at the time of payment of ransom, accused No.1 was
not present there, who simply counted the amount at the instance of
absconding accused Shamsuddin. Therefore, it is established that
complainant had paid the amount of ransom to Shamsuddin and
accused No.1 Mohammed Ali Abbas Ali, helped him in counting the
same.

44] Complainant further deposes that, on 28/8/05 Sudhir Sahani
received call from police and he was informed that one dead body was
located at Gujrat, description of which was matching with Sagar.
Accordingly, Sudhir Sahani went to Gujrat along with police in the
night of 28/8/05. He further deposes that, Sudhir Sahani identified
dead body as that of Sagar. He brought dead body Pune on 29/8/05.
In the cross-examination complainant has admitted that dead body was
brought to his house. He had seen it. Sudhir Sahani has categorically
deposed that, he went to Valsad along with police, where he was
shown dead body in mortuary. He identified the dead body as that
of Sagar and then he brought it to Pune and ultimately the last rites
were performed on the dead body of Sagar on 29/8/05. So, it can be
said that dead body of Sagar was found at Gujrat which was rightly
identified by complainant and Sudhir Sahani.
45] Dead body of deceased Sagar was found in the forest at Kaprala,
which was removed to hospital for postmortem examination. To prove
the recovery of dead body from forest of Kaprala, prosecution has
examined Bhimjubahi Radiya,(PW 36). According to him, he is resident
of Mandava, Tal. Kaprala, Dist. Balsad. He deposes that, he owns
cattle. He took cattle for grazing to nearby forest area known as
Chondi. About six years prior to his deposition, when he was grazing
cattle in nearby jungle, he noticed one dead body near a place called
as Chondicha Chatta. It was forest area. On seeing the dead body he
went to Dy. Sarpanch Kisanbhai Konti (PW 37), of village Mandvi and
informed him about it. Thereafter Dy. Sarpanch took him to house of
Sarpanch Bistubhai Ghotiya, but he was not present in house. Hence on
next day on 27/8/05 he along with Kisanbhai and Bistubhai went to
Kaprala police station and informed about dead body, thereafter he
returned home.
46] In the cross-examination, he admits that, he saw dead body at
the distance of 15-20' from the road. When he saw dead body, it was
raining since morning. He admits that he did not notice maggot near
the dead body. Dead body was having T-shirt and jeans. He did not
see the face of deceased. He also admits that, he did not go near the
dead body. He further admits that, he showed dead body to sarpanch
of his village. So, from the evidence of Bhimjubai, it is established that
he was the first person who saw the dead body lying in the forest
area.
47] To support the evidence of Bhimjubhai, Dy.Sarpanch Kisanbhai
Konti (PW 37) deposes that, on 26/8/05 at about 5.20 pm, Bimjubhai
approached him and disclosed that one dead body was lying besides
road near Chondicha Chatta. He went to the spot and saw the dead
body. Thereafter he along with Bhimjubhai went to the house of
sarpanch, but he was not present in the house. He further deposes
that, in the early morning of next day, he went to the house of
sarpanch and informed him about the dead body. Sarpanch then
approached police and then he came to the spot along with police and
saw that the throat of dead body was cut. He saw mobile phone and
two currency notes of denomination of Rs. 500/- in the clothes of
deceased. He saw that there was jeans and reddish colour T-shirt on
the person of dead body. He admits in the cross-examination that on
26/8/05, he did not see dead body by going near to it. He had seen
the dead body from some distance. He did not inform police on
26/8/05 regarding the dead body. He also admits that, on 27/8/05 also
he did not inform police about it. He admits that he had showed dead
body to sarpanch Bistubhai Ghotiya. Dead body was about 15' away
from the road. He had seen maggots near the dead body. The face
was stained with blood and could not be recognized. He was on the
spot for about 15-20 minutes. He was not called by police at police
station. From the evidence of Kisanbhai it is established that he got
the information from Bhimjubhai regarding dead body lying at
Chondicha Chatta, in forest area.
48] The prosecution also examined sarpanch Bistubhai Ghotiya (PW
34) who deposes that, on 26/8/05 he had been to out of station. He
reached home at about 10 pm. Kisanbhai Konti (PW 37) was present in
his house. He disclosed him that one dead body was lying at
Chondicha Chatta. He asked him to show the place where dead body
was lying. Accordingly, he along with Kisanbhai Konti went to the spot.
It was forest area. There was no street light, hence he could not see the
dead body, hence he returned. In the morning, they rushed to Kaprala
police station and informed police about the dead body. He further
deposes that, then police rushed to the spot and saw dead body lying
in the forest area. The dead body was lying aside. He turned dead
body and saw marks of injury on throat of the dead body. The dead
body was having shirt and pant on its person. Thereafter he lodged FIR
with Kaprala police station (Exh. 361).
49] In the cross-examination, he admits that when he saw dead body
there was pungent smell and maggots were seen. He did not notice
any animal bite on dead body. The dead body had not become hard.
The dead body was turned faint blackish. Police had taken
photographs and also conducted video-shooting. Police called van. Dog
squad was also called, but it was not reached the spot, till body was
removed to the hospital. He also admits that panchanama was not
carried in his presence. The evidence of this witness is also not denied.
Therefore, it is established that he got the information of deceased
from Kisanbhai Konti and Bhimjubhai Radiya, thereafter he lodged
complaint, on the basis of which, CR No. 56/05 was registered with
Kaprala police station. So, the evidence of police officer, who carried
out the investigation of said crime is also important.
50] The prosecution has examined said police officer Rambhai Zala
(PW 44), who deposes that, from 2004 to November 2005 he was PSI
at Kaprala police station. On 27/8/05, Bistubhai Ghotiya, sarpanch of
village Mandava informed him in respect of dead body lying near
Chondicha Chatta. Accordingly, he recorded FIR of Bistubhai Ghotiya
(Exh. 361). On the basis of of complaint he registered CR No. 56/05
and information was sent to D.S.P and S.P. Thereafter he went to the
spot where dead body was lying. He called 2 panch witnesses and
prepared inquest panchanama of dead body. (Exh. 363). He called
expert from Forensic Science Laboratory from Balsad. He also called
dog squad. Thereafter he carried out spot panchanama and seized the
articles found on the spot. He further deposes that, dog squad came
there and took the smell and returned back. The expert of FSL
collected samples of plain soil, bloodstained soil from the spot.
Thereafter body was sent to postmortem examination and then to
mortuary of Kasturba hospital. He also sent police constable Naik to
Walsad to carry out postmortem of dead body. He recorded
statements of drivers plying vehicles on Nasik-Walsad highway. The
posters in respect of deceased Sagar Sahani were affixed in Wapi. He
also took photograph of dead body and circulated the same.
Meanwhile, DSP at Wapi had been to Kaprala and seen dead body.
After returning to Wapi, DSP came to know that the posters affixed in
Wapi of deceased Sagar Sahani, matches with the dead body found at
Kaprala. Then investigation team of Pune came to Wapi and then to
Kaprala. Then on 29/8/05, PI Rajendra Joshi, from Pune came to
Nanaponda outpost of Kaprala police station, along with uncle of
deceased viz. Sudhir Sahani. He took them to Kasturba Hospital and
showed the dead body of Sagar in presence of two panch witnesses.
Sudhir Sahani identified it to be that of Sagar. Accordingly, he
prepared panchanama to that effect (Exh. 399). Thereafter he
handed over dead body to Sudhir Sahani and obtained receipt. On
this point, learned advocate Shri. Koshe submits that, Sudhir Sahani
had not whispered anything about the preparation of panchanama and
issuance of receipt. It is true that, Sudhir Sahani has admitted that
after seeing he dead body, he was frightened, hence he does not know
what procedures were adopted thereafter. He also admits that, he is
diabetic patient and insulin dependent. Therefore, it is possible that,
Sudhir Sahani does not remember, what procedure was followed by
police while handing over the dead body to him. But, he categorically
deposed that he identified dead body as that of Sagar and claimed it.
So, there is no ambiguity in the evidence of Sudhir Sahani.
51] Investigating officer Rambhai Zala (PW 44) further deposes that,
on the request of PI Rajendra Joshi, he handed over investigation
papers of CR No. 56/05 to him. Accordingly, he also handed over the
seized articles to Rajendra Joshi and obtained his acknowledgement.
He further deposes that, he came to know the name of deceased as
Sagar Satindar Sahani. Accordingly, he sent his report to Medical
Officer (Exh. 396). In the cross-examination, he admits that, he
recorded FIR of Bistubhai Ghotiya, at 6 am, on 27/8/05. At about 8
am, he gave information of finding of unknown dead body to all
police stations on wireless. He had received report of dog squad on the
spot. The prosecution has not produced the report of dog squad.
Hence, it is submitted by learned advocate Shri. Koshe, that, it is
against the prosecution and no clue was found to dog squad. Witness
also deposes that, dog squad had been to the road and then it
returned back. So, it appears that, investigating officer did not receive
any clue from the dog squad, hence it is not produced.
52] Investigating officer Rambhai Zala (PW 44) further deposes that,
he had called finger print expert, but he did not come. He did not call
Medical Officer on the spot. He had called Tahsildar, but he also did not
turn up there. From the said evidence it appears that, investigating
officer has taken care to call the expert witnesses, to collect the
material from the spot. But, they did not come. It appears that, the
dead body was having maggots, hence, it was immediately taken to
hospital for postmortem examination.
53] Investigating officer Rambhai Zala (PW 44) further admits that,
when he first saw dead body, its head was towards south side and
legs were in northern direction. When he went to the spot, it was
raining, however, dead body was not stained with mud. He had seen
maggots on the injury of throat of deceased. He had taken
photographs at the spot. He had personally handed over dead body to
Nanaponda Community Health Center and he deposed that, except
those 30-45 minutes, he was all the while present on the spot for
entire day. He also admits that, Medical Officer did not give him
postmortem report on the same day. He had maintained case diary in
respect of CR No. 56/05, but it is not produced in the Court. He further
admits that, he had shown photograph of dead body to Sudhir Sahani,
who identified the same as that of Sagar Sahani. So, from the evidence
of PSI Rambhai Zala, it is established that he got information of dead
body from Sarpanch Bistubhai Ghotiya, accordingly, he recorded his
FIR and thereafter rushed to the spot and prepared inquest
panchanama (Exh. 363). He called experts on the spot and thereafter
sent dead body for postmortem examination. He had also shown dead
body to Sudhir Sahani, who identified the same as that of Sagar Sahani.
54] The prosecution has also examined panch witness Jamubhai
Ghotiya (PW 35), for seizure of clothes of deceased. According to him,
he was called to witness inquest panchanama. The dead body was
lying on the side of the road. The deceased was wearing T-shirt and
jeans with waist belt. He saw mobile phone and currency note of Rs.
500/- on the person of dead body. The throat of dead body was silted.
There was no other injury on the dead body than the cut of throat. Key
of vehicle was also found with the dead body. Police seized said
articles and conducted panchanama in his presence. Thereafter he
signed the same (Exh. 353). He identified mobile phone, belt, jacket, T-
shirt, jeans pant ( articles 14,15,10,12 and 9 respectively). In the cross-
examination, he admits that he was called by police at 10 am. After
obtaining his signature, he was asked to leave. Within about half an
hour he left for home. He also admits that, he attends the police
station as and when called by them. In the year 2005, he was called
by police only once. On the basis of said admissions. learned
advocate Shri. Koshe, has vehemently submitted that, the said
witness is stock witness of Kaprala police, therefore, his evidence
should not be believed. It appears that, the witness visits police station
as and when called, but there is no specific suggestion that he has
acted as panch witness in several cases of Kaprala police station.
Similarly, his evidence is on the point of inquest panchanama. there
is evidence of sarpanch Bistubhai Ghotiya, deputy sarpanch Kisanbhai
Konti and Bhimjubhai Radiya who saw the dead body first, at forest
area, therefore, it is sufficiently established that Bhimjubhai Radiya
had seen the dead body, who gave information of the same to deputy
sarpanch and sarpanch of their village, and thereafter investigating
officer Rambhai Zala of Kaprala police station sent the dead body to
Hospital for postmortem examination and made further investigation.
The panch witness Jamubhai Ghotiya has established that police had
prepared inquest panchanama and seized the articles found on the
dead body. So, prosecution has established beyond shadow of
reasonable doubt that dead body of Sagar Sahani was found in the
forest of Kaprala police station, which was sent to Community Hall
Center of Nandakonda , Tal. Kaprala.
55] To prove the postmortem examination as well as cause of death,
prosecution has relied on the evidence of Dr. Harjeet Singh (PW 43).
According to him, he is attached to Community Health Center,
Nanaponda as Medical Officer, since April 2000. On 27/8/05, dead
body of unknown person was sent to him along with inquest
panchanama by police. He performed postmortem on the said dead
body on the same day at about 12 pm, along with his colleague Dr.
Subhash Patel. He further deposes that, the dead body was of a male
of 22 years, having height of 5'8. He found following internal injuries
on the dead body :
1. Incised wound extending from 2 below the right femur to
left side 1 below the angle of mandible, having size of 5
long and 2 deep in center and 1 in the side,
2. Carotid artejsered jugular was cut. Infrahyoid muscle torn,
thyroidal membrane and ligaments are torn,
3. Whole of the wound was covered with maggots. Maggot was
also present inside the trachea,
4. Bruise, yellow in colour, having size of 2 x 1 cm, on right
knee, small abrasion right side of forehead.
On internal examination, he found that heart was empty and there
was undigested food material in the stomach containing grains of rice
and dal. There was undigested food material present in the stomach
leading to the conclusion that death had occurred 3-4 hours after the
meal. He opined that cause of death as Hemorrhagic shock due to
chop wound over neck. Accordingly, he prepared postmortem report
(Exh. 394) which bears his signature and signature of Dr. Patel. He
further deposes that, in ordinary course of nature, the above injuries
are sufficient to cause death. Witness was shown seized knife/chopper
(Article 143). On the basis of same, He deposes that, injury sustained
to deceased can be caused by said weapon. He further deposes that,
on 27/8/05, he had obtained blood sample of deceased and handed it
over to police along with letter. On 29/8/05, police officer Rambhai Zala
forwarded him letter wherein name of deceased was given as Sagar
Satinder Sahani. Accordingly, he mentioned the name of deceased in
postmortem report (Exh. 396).
56] In the cross-examination Medical Officer admits that, he did not
see any foreign particles in the injury except maggots. Considering the
formation of maggots, he opined that the decomposition of the body
had started recently at that time. Considering the nature of injury, it
appeared that there was profuse loss of blood. He deposes that, on
account of profuse blood loss, a person may suffer hemorrhagic
shock. He also admits that there can be possibility of survival, if said
person gets immediate medical help. He deposes that, putrefaction of
body starts within 48 hours. 36-48 hours time is required for formation
of maggots. The maggots were fully developed. Maggots can get fully
developed within 48 hours. It takes about 7-8 hours for digestion of
food material like rice and dal. The injury mentioned in column No. 17
was clean cut. He also admits that, no weapon was shown to him at
the time of conducting postmortem examination or anytime thereafter.
It was suggested to him that, considering the length, edge and
sharpness of the weapon, it is not possible to cause injury mentioned in
column No. 17 of postmortem report, by seized weapon, but he flatly
refused it. He admits that he did not prepare the postmortem report
on 27/8/05, but he admits that he gave cause of death certificate on
27/8/05. He also admits that, in cause of death name of deceased was
not mentioned. He admits that he did not take photograph of
postmortem examination. On the basis of said evidence, it is
established that the deceased died due to Hemorrhagic shock due to
chop wound over neck. The said aspect is not denied by the defence.
57] Medical Officer Dr. Harjeet Singh has admitted that putrefaction
of body starts within 48 hours and formation of maggots starts from
36-48 hours. Admittedly, postmortem had taken place on 27/8/05 at
about 12 noon. So, death must have been caused after 12 noon of
25/8/05. It is the case of prosecution that death of deceased caused
around 8 pm on 25/8/05. Therefore, the opinion of Medical Officer
regarding the time of death supports the case of prosecution, that,
death must have been caused within 48 hours is correct. Similarly,
Dr. Harjeeet Singh opined that death of deceased must have occurred
3-4 hours after the meal, because he found undigested food material
namely, grains of rice and dal. It takes around 7-8 hours for digestion
of food like rice and dal. So, death must have been caused after 3-4
hours of the meal. Therefore, it is proved that death of deceased was
homicidal and it was caused due to profuse bleeding from the injury on
neck.
58] Having proved the abduction and murder of Sagar Sahani, the
prosecution is required to prove the author of the offence. The entire
case is based on circumstantial evidence . Hence, the prosecution is
heavily relying on the evidence of Approver Narayan Jameria. Who is
examined in this case as prosecution witness. According to
prosecution, Approver Narayan Jameria had submitted two
applications for tender of pardon. The first application is dated 22/1/08
(Exh. 92-1). On the said application, then presiding Judge directed him
to produce before CJM for recording his statement. But, record shows
that Approver was never produced before CJM for recording his
statement. So, no order of pardon was passed on the said application.
Thereafter on 25/10/10, Approver submitted another application (Exh.
161) and requested this Court to grant him pardon. In pursuance of the
said application, Approver was produced before this Court on 9/12/10.
His statement was recorded by then Presiding Judge, and order came
to be passed whereby direction was given to CJM to record statement
of Approver u/s 164 Cr.P.C. . Accordingly, then CJM recorded statement
of Approver u/s 164 of Cr.P.C., and forwarded it to this Court.
Thereafter Approver was produced before this Court on 18/1/11. on
the basis of statement of Approver dated 9/12/10, recorded by this
Court and statement recorded by CJM, this Court granted tender of
pardon to original Accused No. 4 Narayan Jameria u/s 307 of Cr.P.C.
59] In view of the above facts, learned advocate Shri. Koshe has
vehemently submitted that, the grant of pardon is not proper, in fact, it
is illegal. Provisions of section 306 and 307 of Cr.P.C. were not
followed. He also submits that, CJM did not comply with the
provisions of Criminal Manual, while recording statement of Approver
u/s 164 of Cr.P.C. He also submits that, the statement of accused u/s
164 of Cr.P.C., is confession, so, it has to be recorded as per the
provisions of Criminal Manual. To Substantiate the point, he has relied
on the ratio laid down in the case of Babubhai Udesinh Parmar
Vs. State of Gujarat, reported in AIR 2007, S.C. 420, wherein it
was held that :
While recording judicial confession, section 164 provides for
safeguards for accused. The provisions contained therein are
required to be strictly complied with. But, it does not envisage
compliance of the statutory provision in a routine or mechanical
manner.
It was further held that :
It is not proper to administer oath to accused wile recording
confession.
In the present case, Court directed CJM to record statement of
Approver u/s 164 of Cr.P.C. CJM had granted time for reflexion but
the mandatory provisions of Criminal Manual are not followed. Perhaps
the reason was that, the CJM was directed to record statement u/s
164. Therefore, on 9/12/10 and 18/12/10 this Court had verified the
voluntariness of Approver to become witness for prosecution.
Therefore, the authority relied on by the learned advocate is not
applicable to the facts of the present case.
60] Learned advocate Shri. Koshe also has relied on the ratio laid
down in the case of Shivappa Vs. State of Karnataka, reported
in AIR 195 S.C, 980, wherein it was held that :
Confession of accused u/s 164 of Cr.P.C. , cannot be acted upon
unless Court satisfies that it is voluntary in nature.
In the present case, it appears that, this Court has recorded statement
of Approver and not the confession of Approver. The voluntariness of
Approver to become witness for prosecution is vouched and verified
by this Court and it is reflected from the order passed on 9/12/10 and
18/12/10. The Approver had given two applications for becoming
witness to the prosecution. He prayed for tender of pardon which was
granted by this court. Therefore, it appears that, the Approver had
voluntarily was read and willing to become the witness. It includes his
voluntariness to give evidence against himself as well as co-accused.
Therefore, the ratio relied upon by the learned advocate is also not
applicable to the facts of the present case.
61] On the other hand, learned Spl. P.P. Shri. Shah submits that, the
Approver was granted tender of pardon by this Court u/s 307 of Cr.P.C.,
therefore, there was no need for this Court to refer the Approver
before CJM for recording his statement. He also submits that, this
court has verified the truthfulness of application dated 25/10/10 and
recorded statement of Approver on 9/12/10 and come to the
conclusion that Narayan Jameria was directly concerned with the
offence or privy to the offence alleged against him. Hence, he was
granted pardon. Therefore, there is no illegality committed by this
Court while granting him pardon. He also submits that, while recording
statement u/s 164 of Cr.P.C. , the time of reflection was granted to
Approver. The Approver was produced before learned Magistrate,
immediately as per the direction of this Court and then his statement
was recorded on 22/12/10, 23,12/10 and 24/12/10. So, there is
compliance of Criminal Manual and Civil Manual.
62] On the basis of statement of Approver, recorded on 9/12/10, the
Approver was granted time for reflection and then he was again
produced on 18/12/10 before the Court. This Court perused the
application dated 25/10/10 and thereafter on perusal of allegations
levelled against the Approver, granted pardon to him. So, the order of
pardon is u/s 307 of Cr.P.C., because there was no question of resorting
to the provisions of section 306 of Cr.P.C.. But it appears that,
Approver was referred to CJM for recording his statement, in fact that
attempt was futile, there was no need for recording statement of
Approver by CJM. Even if there is lapse on the part of CJM, while
recording statement of accused, the order of tender cannot be
vitiated, similarly it cannot be called as illegal order.
63] Learned Spl. APP Shri. Shah has relied on the ratio laid down in
the case of Santosh Kumar Satishbhushan Bariyar Vs. State of
Maharashtra, reported in 2009 (6) SCC 498. In the said case,
tender of pardon was granted to one of the accused by Sessions Court
on the basis of statement recorded by learned Magistrate The said
order was challenged before Hon'ble High Court as well as Hon'ble
Apex Court. The Hon'ble Apex Court has specifically framed the issue
namely :
'Whether the learned Sessions Judge acted illegally in granting
pardon to Kumar Gaurav'.
While deciding the said issue, Hon'ble Apex Court held that :
Section 306, thus, empowers the Chief Judicial Magistrate or a
Metropolitan Magistrate or a Magistrate of the First Class,
inquiring into or trying the offence to tender a pardon to such
person on condition of his making a full and true disclosure of the
whole of the circumstances within his knowledge relating to the
offence and to every other person concerned, whether as
principal or abettor, in the commission thereof. The said provision
indisputably applies to the cases triable exclusively by a Court of
Sessions.
The Magistrate tendering pardon is required to record his
reasons for so doing and to further record whether the tender
was or was not accepted by the person to whom it was made.
Sub-section (4) of section 306 of the Code of Criminal Procedure
mandates that such a person accepting tender of pardon must be
examined as a witness in the trial. Sub-section (5) of section 306
of the Code of Criminal Procedure provides that where a person
has accepted tender of pardon made under sub-section (1) and
has been examined under sub- section (4), the Magistrate taking
cognizance of the offence shall commit it for trial, without making
any further inquiry in the case.
Sub-section (4) of section 306 is procedural in nature. It is
necessary to be followed only by a Magistrate as he would not
have any jurisdiction to try the case himself. The leaned Sessions
Judge before whom the case is committed for trial must be
informed as to on what basis pardon had been tendered.
Section 307 does not contain any such condition. The power
of the learned Sessions Judge is independent of the provisions
contained in section 306 thereof. The condition mentioned in
section 307 refers to the condition laid down in sub-section (1) of
section 306, namely, that the person in whose favour the pardon
has been tendered, will make a full and true disclosure of the
whole of the circumstances within his knowledge. The power of a
Sessions Court is not hedged with any other condition.
In the said case, Sessions Judge had perused application of Approver.
Thereafter he was examined by putting relevant questions to him and
then pardon was granted.
In the said case, it was held that :
Sessions Judge, applied his mind on the application for grant of
pardon filed by accused. Similarly, he was examined by Court by
putting relevant questions to him.
Sessions Judge did not pass order only on the basis of
purported confessional statement made by Approver. It was not
done mechanically. If in law it was not necessary for learned
Magistrate to forward copy of confession made by Approver u/s
164 of Cr.P.C. or to record a separate statement of the said
witness for the purpose of complying with the provisions of
section 306 of Cr.P.C. , the question as to whether he had
retracted from his confession or not, would not be of much
relevance as regards exercise of power of sessions Judge u/s 307
of Cr.P.C.
There was no legal obligation on the trial court or a right in
favour of the accused to insist for the compliance with the
requirement of section 306(4) of the Cr.P.C. Section 307
provides a complete procedure for recording the statement of an
accomplice subject only to compliance of conditions specified in
sub-section (1) of section 306. The law mandates the satisfaction
of the Court granting pardon, that the accused would make a full
and true disclosure of the circumstances within his knowledge
relative to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof.
64] In the present case, the Approver submitted application on
25/10/10, he was produced before the Court on 9/12/10, his detail
statement was recorded, to know whether he was under pressure or
influence of some other person to become a witness. Thereafter, time
of reflexion was granted. He was again produced on 18/12/10. On the
same day, this Court granted tender of pardon to him and thereafter
learned CJM was directed to record his statement u/s 164 of Cr.P.C.
While recording statement of Approver by CJM, there are some flaws,
as the provisions of Criminal Manual were not followed in strict sense.
Still, the defect in recording statement of Approver by CJM, will not
affect the order granting tender of pardon to Approver, because it
was within the province of this Court to grant pardon u/s 307 of
Cr.P.C. There was no necessity to refer Approver for recording his
statement before CJM. This Court could have recorded the statement
of Approver. Therefore, in view of ratio laid down in the case cited
supra, it cannot be said that the order of granting pardon is illegal.
65] Learned APP Shri. Shah also relied on the ratio laid down in the
case of Narayan Chetaram Chaudhary Vs. State of Maharashtra,
reported in 2000 SAR (criminal) 844. In the said case, one of the
accused was granted pardon by trial court without referring him to the
learned Magistrate for recording his statement. Hence, it was
contended that the trial court has committed illegality while tendering
pardon to one of the accused. In the said case, it was held that :
In order to appreciate the submissions of the learned counsel, a
reference to sections 306 and 307 Cr.P.C. is necessary. Section
306 provides :
Tender of pardon to accomplice (1) with a view to obtaining
the evidence of any person supposed to have been directly or
indirectly concerned in or privy to an offence to which this
section applies, the CJM or a Metropolitan magistrate at any
stage of the investigation or, inquiry into, or the tiral of, the
offence, and the Magistrate of the first class inquiring into or
trying the offence, at any stage of the inquiry or trial, may tender
a pardon to such person on condition of his making a full and
true disclosure of whole of the circumstances within his
knowledge relative to the offence and to any other person
concerned, whether as principal or abettor, in the commission
thereof.
(2) This section applies to :
(a) any offence triable exclusively by the Court of session
or by the Court of a special judge appointed under the
Criminal Law Amendment Act, 1952;
(b) any offence punishable with imprisonment which may
extend to seven years or with a more severe sentence.
(3) Every magistrate who tenders a pardon under sub-
section (1) shall record :
(a) his reasons for so doing ;
(b) whether the tender was or was not accepted by the
person to whom it was made;
and shall, on application made by the accused, furnish him
with a copy of such record free of cost.
(4) Every person accepting a tender of pardonmade under
sub-section (1) --
(a) shall be examined as a witness in the Court of the
Magistrate taking cognizance of the offence and in
the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody
until the termination of the trial.
(5) Where a person has accepted a tender of pardon made
under sub-section (1) and has been examined under sub-
section (4), the magistrate taking cognizance of the offence
shall, without making any further inquiry in the case, --
(a) commit it for trial--
(i) to the Court of session, if the offence is triable
exclusively by that Court or if the magistrate taking
cognizance is the CJM :
(ii)to a Court of special Judge appointed under the Criminal
Law Amendment Act, 1952, if the offence is triable
exclusively by that Court;
(b) in any other case, make over the case to the CJM who
shall try the case himself.
Section 307 provides :
Power to direct tender of pardon : At any time after
commitment of a case but before judgment is passed, the Court
to which the commitment is made may, with a view to obtaining
at the trial the evidence of any person supposed to have been
directly or indirectly concerned in, or privy to, any such offence,
tender a pardon on the same condition to such person.
A perusal of both the sections clearly indicates that section 306 is
applicable in a case where the order of commitment has not been
passed and section 307 would be applicable after commitment of
the case but before the judgment is pronounced. The provisions of
sub-section (4)(a) of section 306 would be attracted only at a
stage when the case is not committed to the Court of Sessions.
After the commitment , the pardon is to be granted by the trial
court subject to the conditions specified in sub-section (1) of
section 306, i.e., Approver making a full and true disclosure of
the whole of the circumstances within his knowledge relative to
the offence and to every other person concerned, whether as
principal or abettor, in the commission thereof. It may be noticed
that under the old Code, only the District Magistrate had the
power to tender pardon, at any stage of the investigation, inquiry
of trial even though he himself might not be holding such inquiry
or trial. Pardon could be granted by the District Magistrate even
during the pendency of the trial in the Sessions Court. By Criminal
Law Amendment Act, 1952, old sections 337 to 339 were
substituted by sections 306 to 308 of the Cr.P.C., conferring the
power to tender pardon only to Judicial Magistrates and the trial
court. Section 307 in its present form does not contemplate the
recording of the statement of the Approver twice as argued.
Accepting the submissions made on behalf of the appellant
would amount to legislate something in section 307 which the
legislature appears to have intentionally omitted.
As I have already observed that in the present case, this Court has
referred Approver to CJM for recording his statement u/s 164 of Cr.P.C.
In fact, it was not necessary. Therefore, the said statement is required
to be ignored. So, any discrepancy committed while recording
statement of Approver by CJM, has no impact on granting tender of
pardon. Therefore, I do not find any merit in the submission of learned
advocate Shri. Koshe, that grant of pardon to Approver is illegal and
bad in law.
66] Now I appreciate the evidence Approver Narayan Jameria (PW
1). While discussing the evidence of Approver, I would like to discuss
the evidence of other witnesses in the form of corroboration to the
testimony of Approver so that the evidence may be properly assessed.
67] The Approver deposes that since 1983 he was working as a
driver on heavy vehicles like truck. But, he had simply stated in his
previous statement that he was truck driver by his profession. The
truck is included as heavy vehicle, therefore, the omission that he
was driver on heavy vehicles is not material omission. Witness further
deposes that, in the year 2000, he was working as driver on Jay-
Sagar petrol pump at Porbandar. He also deposes that, accused no. 5
Bhikubhai Thanki was working in the said petrol pump as accountant.
In fact, the said thing is denied by the defence, but in the cross-
examination, it is specifically suggested to Approver that he used
to sell diesel unauthorisedly and complaint to that effect was made by
Bhikubhai Thanki (A 5) to the petrol pump owner, hence he lost his
job. This suggestion shows that Bhikubhai Thanki was also working
with petrol pump along with Approver.
68] It is come in the evidence of Approver that in the year 2003,
Bhikubhai Thanki left the job of Jay-Sagar petrol pump and started his
own travel company by name Shubh Travel at Kamala Nehru Park,
Porbandar. The said fact was also denied by way of suggestion. It is
also suggested to Approver in his cross-examination para 31 that he
joined Shubh Travel in 2004. There were about five drivers and three
other staff members. It is also suggested that he worked with Shubh
Travels for five months. The said suggestions are accepted by the
Approver. Therefore, it is established that after leaving the job of Jay
petrol pump Approver joined Shubh Travels which was owned by
accused Bhikubhai Thanki. Similarly, it was also suggested to Approver
that when father of Bhikubhai Thanki died, all drivers working in Shubh
Travels, visited his house for condolence. The said suggestion is also
accepted by Approver, therefore, it is aptly proved that Bhikubhai
Thanki had started his own travel company in the name and style as
Shubh Travels and Approver was working in the said travel company
in the year 2004.
69] Approver further deposes that, Bhikubhai Thanki had purchased
two Sumo jeeps, one Qualis and one Indica car on finance for travel
business. He had purchased said vehicles in 2004. Bhikubhai Thanki
had also purchased 41 seater A.C bus and he was driving the said bus.
He worked for a period of two months as a driver on the said bus. The
said bus was old and was requiring maintenance. Therefore, it was
sent to Ahmednagar for repairs. He dropped bus at Ahmedabad for
repairs. He further deposes that, he was not paid wages for two
months. Witness admits that he did not stated in his previous
statement that his salary for two months was due from Bhikubhai
Thanki. In fact, Approver has stated in his previous statement that he
was not paid salary for a period of five months. It appears from the
evidence of Approver that, he drove bus of Bhikubhai Thanki for two
months and that payment was in arrears. In fact he has stated that he
worked with Bhikubhai Thanki for about five months and he was not
paid salary. Therefore, the omission regarding arrears of two months is
not material.
70] Approver further deposes that, Bhikubhai Thanki had told him
that his brother-in-law Nilesh Modha (accused No.11) was staying in
Dubai and he was going to send money from Dubai, after receipt of
which he promised him to pay his dues. The said facts were not
narrated by Approver before C.J.M. Therefore, the said evidence is
required to be ignored.
71] Approver further deposes that, he waited for three months for
his payment, but Bhikubhai Thanki was incurring losses continuously.
The said fact is also brought on record as omission, hence it is required
to be ignored. He further deposes that, except Sumo, all his vehicles
were seized by financiers, Sumo was also to be seized by financier,
hence Bhikubhai Thanki sent it to Pune, so it would not be seize. The
said fact was not stated by Approver before CJM, therefore, it is
required to be ignored.
72] Witness further deposes that, after leaving the job of Bhikubhai
Thanki, he started doing work on daily wages. At that time, Bhikubhai
Thanki engaged another driver Accused Samantbhai Gadhvi ( A7),
who used to meet him. He made inquiry with him and he told him that
brother-in-law of Bhikubhai Thanki, if comes from Dubai he would
intimate him, for recovery of his dues.
73] Approver further deposes that, in the month of June-July 2005,
he was at his village Bhot. He had mobile connection bearing No.
9426933206. He received call on his mobile from Reliance mobile
bearing No. 9327804346. The witness has admitted that he did not
tell before CJM that he received call on his said mobile number from
Reliance mobile bearing No. 9327804346. The omission is in respect of
Reliance mobile number. But, Approver has stated before CJM that
he had received telephonic call on his mobile from Reliance mobile,
therefore, the said omission is not material. He further deposes that,
said call was of Samantbhai Gadhvi, asking about his whereabouts. He
told him that he was at his village Bhot. Samantbhai Gadhvi told him
that Nitin Modha (A 11) had come from Dubai. Samantbhai Gadhvi
also told him that he was near Rajkot and approaching his village
Bhot. He was also directed to come to Bhot approach road at highway.
Samantbhai Gadhvi also told him that they were coming in Cielo car.
Approver further deposes that, he went to Bhot approach road on
highway. After some time, Cielo car came and stopped near him. It
was driven by Samantbhai Gadhvi. On the front seat in the left of
Samantbhai Gadhvi, a person of fair complexion was sitting, who was
having french cut beard. He was bald and having gold chains on his
person. Samantbhai Gadhvi told him that he was Nitin Modha.
Witness admits that he did not state before CJM that person sitting
besides Samantbhai Gadhvi was the same person, who was having
french cut beard, he was bald and having gold chains on his person.
The said description is brought on record as omission. In order to
describe accused No. 11, Approver has described him in his evidence.
In fact, the said thing was not stated by him before CJM. However,
Approver has identified accused No. 11 in the Court. Therefore, there
is no ambiguity regarding identify of accused No. 11 Nitin Modha.
Approver further deposes that, Samantbhai Gadhvi introduced him
with accused No. 11, so, description of accused No. 11, given by
Approver does not have any importance, because he was introduced
with Nitin Modha (A 11) by Samantbhai Gadhvi when car was
stopped on Bhot approach road.
74] Witness further deposes that, Nitin Modha (A 11) inquired with
him about STD/PCO center. He took him to STD/PCO center which was
situated at some distance from Bhot approach road at hotel Randal.
After reaching there, Nitin Modha (A 11) alighted from the vehicle. He
was carrying two mobiles with him. He went to PCO center. The said
evidence is simply denied by defence. Prosecution has not obtained
call details from the said STD/PCO center. But, the said discrepancy is
not material. Witness further deposes that, while Nitin Modha was in
STD center, Samantbhai Gadhvi told him that he had inveseted Rs.
One lac with Bhikubhai Thanki in his business. Witness has stated that
he did not state said fact before CJM, but in fact in his previous
statement, it is mentioned that Samantbhai Gadhvi was owing Rs.
One lac from Bhikubhai Thanki. So, it can be said that, Samantbhai
Gadhvi was having some transaction with Bhikubhai Thanki, therefore,
the said omission is also not material.
75] Witness further deposes that, after returning from STD center,
Nitin Modha asked him whether he can work as a driver on All India
Tourist basis. Accused No. 11 also told him that he along with his
family wanted to go on a trip to Kanyakumari from Pune. He further
deposes that, then they came to village Bhot, he took his luggage and
by telling his mother and children, left home. At that time,
Samantbhai Gadhvi was driving the vehicle. Nitin Modha (A 11) was
sitting on front of seat besides the driver. He was sitting in the rear
seat. He further deposes that, they reached Rajkot where accused
Samantbhai Gadhvi took his cousin Ajay Gadhvi (A8), Then they
proceeded to Pune. He further deposes that, they reached outskirts of
Mumbai in Kishimira and one room was booked at Divya palace. The
said hotel was known to Nitin Modha. They spent night in the said
hotel and on next day at 10 am, they left Pune.
76] Witness admits that he did not state before CJM that they
reached outskirts of Mumbai in the midnight and stayed near
Kashimira, book one room in Divya Palace and owner of which was
known to Nitin Modha. They spent night in the said hotel. This entire
part of evidence is brought on record as omission. But it is proved
that Approver along with accused Samantbhai Gadhvi, Ajay Gadhvi
and Nitin Modha proceeded towards Pune. He further deposes that,
on reaching Pune, he went to Ashapura dinning hall. Nitin Modha told
him that said hotel was given to Bhikubhai Thanki by him, he alighted
from the vehicle and went inside hotel. He asked person on the
counter in respect of Bhikubhai Thanki (A 5) and came to know that
Bhikubhai Thanki left Porbandar as he lost his father. The said part of
evidence is simply denied.
77] He further deposes that, thereafter he came to hotel Prachi. He
saw an old man sitting on the counter. Nitin Modha introduced him to
the said person as his father viz. Shantilal Modha ( deceased
accused ). The said part of evidence is simply denied by way of
suggestion. He further deposes that, Samantbhai Gadhvi and Nitin
Modha left in car to meet mother of Nitin Modha. Both of them
returned to hotel Prachi in the evening. They had a dinner at Hotel
Prachi. Then they went to Ashapura Dinning Hall at Nigdi for stay. He
admits that, he did not state before CJM that they had dinner at Hotel
Prachi. But, the said omission is also not so material.
78] Approver further deposes that, on the next day, at about 9 am,
Jitu Modha (A6) came there and told Nitin Modha that since his visa
was expiring, he had to rush Dubai. Then they returned to hotel Prachi.
Witness, Jitu Modha and Ajay Gadhvi got down and Samantbhai
Gadhvi and Nitin Modha left for house of Nitin Modha to collect
passport. He further deposes that, thereafter Nitin Modha returned
back to hotel Prachi and asked his father for some amount to purchase
tickets. He also called agent in Mumbai for ticket. Witness admits that
he did not stated before CJM that Nitin Modha called agent for ticket.
The said omission is also required to be ignored, as it is minor in
nature.
79] Approver further deposes that, when he had been to Prachi
hotel, Samantbhai Gadhvi and Nitin Modha went to the house of Nitin
Modha to collect passport. At that time, a young man of fair
complexion came near the Cielo car. He was looking in to the interiors
of the car. Nitin Modha told him that the car was owned by him. The
name of said person was Sagar. Said Sagar told accused No. 11, that
when he would return from Dubai,he would arrange for the deck and
other interior items for the said car. He was the owner of a shop viz. A-
1. The said shop was situated after 2-3 shops, adjacent to Prachi
hotel. Witness admits that he did not state it before CJM that Sagar told
Nitin that he would arrange for deck and other interior items for the
said car. But the said fact is not material. The crucial fact was that
Approver had seen Sagar near Prachi hotel while he was observing the
interior of the car and he came to know that Sagar was owner of A-1
car dcor.
80] Witness further deposes that, Shantilal Modha and Jitu Modha
gave Rs. 10,000/- to Nitin Modha. He admits that he did not state
said fact before CJM. But he had stated before CJM that Jitu Modha
gave him Rs. 10,000/- for passport. The name of Shantilal Modha is
brought on record as omission. But, the fact remains on record that,
Jitu Modha paid him Rs. 10,000 for expenses. Witness further deposes
that, he along with Nitin Modha , Samantbhai Gadhvi and Ajay Gadhvi
then proceeded to Mumbai. They reached Mumbai in the wee hours of
night. In the morning Nitin Modha called his agent for ticket, they spent
night at Divya Palace at Kishimira. The witness admits that he did not
state above facts to CJM, therefore, the said facts are required to be
ignored. He further deposes that, in the morning all of them went to
agent in Kashimira, Nitin Modha paid some amount to agent. Agent told
that flight was in the night and he would get ticket in the afternoon.
Thereafter they returned Divya Palace hotel. The said facts are also
brought on record as omission. Hence, those are required to be
ignored. Witness further deposes that, Samantbhai Gadhvi received
call on his mobile that his mother was seriously ill and was called at
Porbandar. Samantbhai Gadhvi told Nitin Modha that he wanted to
return Porbandar. At that time, Approver asked Nitin Modha about his
amount, Nitin Modha told him that he would pay amount to him when
he would return back from Dubai. The said fact is simply denied by
the defence. Witness further deposes that, Nitin Modha told him that he
had to recover some amount from the party at Pune. He asked about
the name of party, but Nitin Modha told him that he would tell the
name of party after he returns from Dubai. Said part of evidence is
simply denied. Witness further deposes that, Nitin Modha gave some
amount to Samantbhai Gadhvi for the purpose of his return journey
and told him that he would return back within 10-15 days, thereafter
he along with Ajay Gadhvi and Samantbhai Gadhvi returned to Rajkot.
He dropped Ajay Gadhvi at Rajkot, thereafter he along with
Samantbhai Gadhvi came to Porbandar. Samantbhai Gadhvi gave him
Rs. 200/- and then he returned to his village Bhot and Samantbhai
Gadhvi went to his house. The said evidence of Approver is not
denied on behalf of accused Nos. 7 and 8. In fact, it is suggested by
learned advocate Shri. Bhagwat on behalf of accused Nos. 7 and 8
that, accused Samantbhai Gadhvi and Ajay Gadhvi ( A 8) had simply
accompanied accused Nitin Modha to Pune. Both of them were taken
to Pune as drivers as they were not knowing the roads. The said
suggestions were accepted by the Approver. Therefore, it can be said
that accused Samantbhai Gadhvi and Ajay Gadhvi did not deny their
trip to Pune along with accused Nitin Modha and Approver.
81] As far as second trip is concerned, the witness further deposes
that, about 15 days after reaching village Bhot, he received call from
accused Nitin Modha, who told him that he had come to Baroda and he
was called there. Accordingly, he picked up his bag and reached Bhot
approach road on highway at about 4 pm. Bus proceeding from
Porbandar to Wapi came there. Co-incidentally the driver of said bus
happened to be of his acquaintance. He told him that he wanted to
go to Baroda. He offered him a lift by saying that he might assist him
as a driver. Accordingly, he drove the bus in the night. At about 3 am,
they reached Baroda. He woke up the driver, but as he was not feeling
well, he requested him to drive the bus up to Surat. He further deposes
that, at Surat he went to the house of his brother Ramesh and took
rest. On the next day at about 12.00 noon, he received call from
accused Nitin Modha who asked him his whereabouts. He told him
that he was at Surat. Nitin Modha asked him to wait at Surat as he was
coming along with his friends to Surat. Nitin Modha also told him that
after reaching Surat they would proceed to Pune. This part of evidence
is simply denied by defence.
82] He further deposes that, three days thereafter at about 11 pm
he received call from Nitin Modha who told him that he was reaching
Surat within an hour. Nitin Modha called him at Hirabaug Circle, Varasa
road. Accordingly, he reached there at about 12 noon. After some time,
one Indica car bearing No. GJ-07/3315 came there. Nitin Modha told
him to come in the car and directed him to take car at hotel for night
stay. He told him that he wanted to take another car on rent, as he
had plan to go Goa from Pune. Accordingly he reached the hotel. In
the room of hotel, Nitin Modha told him that vehicle was owned by
Jagmal Choudhary (A 3). He was also introduced to Chhotu Ghisaiwala
( A 10), Prasad Shetty (A 2) and Chhotu Choudhary (A 4). He further
deposes that, Chhotu Choudhary was driver of said Indica. He further
deposes that, in the morning they all came to Hirabag circle. Nitin
Modha had asked them for some agent for vehicle on rent. At that
time, Dinesh Tukadia (A 9) acquaintance of Nitin, came there. He
asked him for car on rent. Dinesh told that his brother-in-law had Ciena
car. Then Dinesh went to fetch the car. At about 9 pm, they proceeded
to Pune in Indica and Ciena car. He further deposes that, they were
about six persons and in the night they halted at Hotel Divya Palace at
Kashimira, in Mumbai. Said persons were Jagmal Choudhary, (A 3)
Chhotu Ghisaiwala ( A 10), Prasad Shetty (A 2), Chhotu Choudhary (A
4) Dinesh Tukadia (A 9), Nitin Modha ( A 11) and he himself.
83] In the cross-examination he admits that the did not state before
CJM that, they were about six persons namely Prasad Shetty (A 2),
Jagmal Choudhary, (A 3), Chhotu Choudhary (A 4) Dinesh Tukadia (A
9), Chhotu Ghisaiwala ( A 10), Nitin Modha ( A 11) and he himself.
The omission is in respect of six persons and their names. In statement
before CJM, he had stated that all of them reached hotel Divya Palace.
So, the omission is not so material, because it is simply in respect of
number and names of accused.
84] He further deposes that, on next day at about 12 pm, they all
left for Pune and reached Pune at about 4 pm. They stayed in hotel
Kohinoor. In the hotel register, they were required to write their names
and addresses. He was also known by name Narayan Thakkar and
accordingly, he made entry in the hotel register as Narayan Thakkar.
This part of evidence is denied. On this point, the evidence of Raju
Shetty (PW 6) is very crucial. He is manager of hotel Kohinoor. He
deposes that, since last 30 years he is working as manager in said
hotel. Ravindra Sawant was also working as manager in the said hotel
along with him, during night shift. He further deposes that, hotel
Kohinoor is located at Chinchwad, it consists of 20 rooms. He further
deposes that, four persons were employed as room boys. They
maintain register of customers. The entries in the register were
sometimes written by the customers. He further deposes that, police
inquired with him whether six persons from Gujrat had stayed in his
Lodge. He had shown register of customer to police. He further
deposes that, on 30/7/05, while he was on duty at about 6.50 pm, six
customers came to the Lodge. One of them requested for rooms in the
Lodge. He talked with them in Hindi language. The person who
approached him for the room initially, came with one chit containing
the names of occupants written in Gujrathi. As he was knowing
Gujrathi, he told him to read the names. Then he read the names and
accordingly he entered it in the register in English and told them to pay
advance and sign the register. He , however, left, hence he sent room
boy along with register and directed him to obtain the signatures on
the register. One of them signed the register. They sent advance of
Rs. 700/-. They were possessing with them red coloured Inida car and
Ciena car. He further deposes that, on the next day when he joined
his duty the said persons were in the room. At that time, one person
approached hotel along with one girl aged about five years and
inquired about the persons from Gujrat. He told that they were residing
in room No. 19. Accordingly he went there. He further deposes that,
on 1/8/05 when he joined duty the occupants of the room No. 19 and
their cars were not there. On the same day they all checked out. They
paid necessary charges and left. He further deposes that, 15-20 days
thereafter police came there. He showed register to police. He
identified entry bearing No. 798 made in the register, in respect of
accused. He deposes that, names were written therein as told by the
customers. He identified his handwriting of the said entry (Exh. 134).
He also deposes that, the date of checking in the hotel was mentioned
as 30/7/05 and date of check out was shown as 1/8//05 at about 7.30
pm. The payment of Rs. 700/- was also made. He further deposes
that, on 6/10/05 he was called at Yerawada Jail for Test Identification
Parade wherein he identified accused Nos. 2 and 5. He also identified
accused No. 11 in the court.
85] Witness Raju Shetty admits that, identification proof of customers
is required to be taken. But, it was not taken by him. He also admits
that, on 30/6/05, room number 19 was given to six persons, but he
does not remember as to who was occupying room No. 10 on that day.
He also admits that, he does not maintain visitors register. Duty
register is maintained for room-boys. He also admits that, out of 4
room boys, 2 were in day shift and remaining 2 were on night shift.
No specific rooms were allotted to them. He also admits that, he
maintained details of vehicles of customers in the register. He admits
that, presently watchman maintains details of vehicles. Entries in the
register can be taken by any of the staff of the Lodge. His statement
was recorded on the same day when register was seized. i.e. 15-20
after the aforesaid room-mates vacated the room. The attention of
witness was drawn to the copy of register ( Article 132). There was
entry in the name of Nazir Khan in the register on 30/7/05 at serial No.
799 for room No.9 and the time was 6.30 pm. On perusal of said
entry, witness admits that he cannot tell the place from where
customer had come, without referring the register. It was suggested to
witness that, on 30/7/05 only a person by name Narayan Thakkar had
checked-in the hotel, he stayed alone and he made entry in his
name. But, the said suggestion is flatly refuted. It is also suggested to
him that the persons identified by him in the court were not seen by
him ever, but said suggestion is also denied by him. On perusal of
article 132, it appears that, in all 6 persons had checked-in on
30/7/05 and room number 19 was allotted to them and they had
checked-out on 1/8/05 at about 7.30 pm. Witness Raju Shetty is
independent witness who is working as manager at Kohinoor hotel
since last 30 years. He produced extract of register and proved it. He
had no animus against the accused. Therefore, his evidence cannot
be brushed aside, which corroborates the theory of Approver that,
when he had come to Pune second time, he had occupied room No. 19
at Kohinoor Lodge.
86] Coming back to the evidence of Approver, he deposes that, on
that day at about 2.00 pm, Jitu Modha (A 6) came along with his minor
daughter. He admits that, he did not state before CJM that, at about 8
pm, accused No. 6 had come to hotel along with his minor daughter.
The said fact is substantiated by witness Raju Shetty. He had
categorically stated that, one accused along with minor girl had come
to hotel and met the persons stayed in the room No. 19. So, it is
rightly established that when accused Nos. 2, 3, 4, 10 and 11 were
staying in Kohinoor hotel, accused No. 6 had come along with his minor
daughter to see accused Nitin Modha (A 11).
87] Approver further deposes that, Jitu Modha and Nitin Modha had a
discussing in respect of outing. It was raining at that time. Hence,
Jitu told Nitin not to come out of hotel, so that his coming to Pune
should not be known to anybody. Prasad Shetty (A 2) and Chhotu
Choudhari (A 4) used to go out by Indica and rest through Indica. All
these facts are brought on record as an omission, hence the said
facts are required to be ignored.
88] Approver further deposes that, he stayed in the said hotel for
about 3 days and said fact is substantiated by witness Raju Shetty,
who specifically stated that on 30/7/05 in the evening six customers
came to his Lodge and they checked-out on 1/8/05. He further
deposes that, after vacating the hotel, they shifted to hotel White-
house where they stayed for 3 days. There also, Jitu used to meet Nitin
at about 8 pm. Witness admits that he did not tell before CJM that,
accused No. 6 used to meet Nitin Modha at 8 pm. The omission is in
respect of time. Witness has categorically deposed that, accused
Jitu used to meet Nitin in the hotel during his stay in the hotel White-
house. To substantiate said fact, prosecution has relied on the
evidence of manager of White-house, Samal Mitra (PW 7). He stated
that, since last 20 years he is working as manager in White-house
lodge. In addition to him, there was one manager namely Shrikant
Gaikwad. His duty hours were 7 am to 8 pm. He further deposes that,
on 15/9/05 police had approached him and made inquiry whether
persons from Gujrat had stayed there. He showed the customers
register to police and told them that on 1/8/05, six persons from Gujrat
had been to his hotel and stayed there for 5 days. They checked-out
on 4/8/05 at about 9 pm. Thereafter they again came after an hour and
requested for a room. Accordingly room was allotted to them.
During the aforesaid stay at hotel, they were allotted room No. 117.
He further deposes that, on 1/8/05 these persons came to hotel at 9
pm, when Gaikwad was on duty. On 2/8/05 when he came for duty,
Gaikwad handed over him charge and told that six persons from Gujrat
have checked in room No. 117. He was told that they had 2 cars.
One was red and other was ash colour. He further deposes that, he
had seen some of the persons who came to attend the telephonic
calls. The original customer register was seized by police authority. He
was shown original register maintained by his hotel (Exh.131). He
further deposes that, entry dated 1/8/05 is in the name Narayan
Joshi r/o Surat. An amount of Rs. 650/- was paid. The date of check
out is mentioned as 4/8/05 at 9 pm. He was also shown entry No.
18344 it was in the name of Narayan Joshi. Check-in timing was
shown 10-30 pm on 4/8/05 and check out time was shown as 9.15 pm
on 5/8/05. He further deposes that, on 6/10/05 he was called at
Yerawada Jail wherein Test Identification Parade was conducted
wherein he identified accused Nos. 4,5,6. Similarly, he also identified
accused No. 11 in the court. In the cross-examination, he admits that
there were in all 46 rooms in his hotel. In the year 2005, six employees
were working in the hotel. He also admits that, the customers
register used to remain in custody of duty manager. He also admits
that, they did not maintain visitor's register. There is parking place and
customers used to park their vehicles. He admits that he cannot tell as
to how many customers by name Narayan Joshi were present in his
hotel, but he stated that, there was one customer in room No.117 by
name Narayan Joshi on that day. He was also shown entry No.18266. It
is in the name of Naran Joshi, aged 35 years, resident of Surat Camp,
room No.208. There were two persons in the said room. He was
shown entry No. 18264 in the name of Naraj Joshi, aged 34 years. He
was also shown entry No. 18344 which was in the name of Narayan
Joshi. His address was given in the said entry is not legible. On this
point, the evidence of Approver is also crucial. He has categorically
stated that, he made entry in the hotel register as Narayan Joshi,
resident of Varasa. Similar entry was made in the register , but there
were two other customers in the name of Narayan Joshi and Narayan
Jameria resident of Gujrat. It appears that, the said entries were also
made by Approver. It appears that, the Approver and other accused
persons had occupied White-house hotel in the evening of 1/8/05.
They checked-out the said hotel in the evening of 4/8/05 and again
occupied the said hotel in the night of 4/8/05 and left in the 5/8/05.
So, there are at least two entries of ingress and egress made by
Approver. Both the entries are proved by said witness Samal Mitra.
Though the evidence of Samal is denied by defence, but the document
produced by him coupled with the evidence of Approver establishes
that Approver along with other accused Nos. 2,4,9,10 and 11 had
stayed in the hotel during 1/8/05 and 4/8/05. The evidence of Mitra
substantiates the evidence of Approver on the point that he along
with other accused had stayed in the hotel White-house after leaving
Kohinoor hotel in the night of 1/8/05.
89] The Approver further deposes that, on third day at White-house
hotel, accused Nitin Modha had gone out. He had forgotten his mobile
at hotel. Between 6-7 pm, there was call on cell of Nitin Mothda. He
saw it. When he saw phone number starting from 0097, he attended
said call and told caller that Nitin Modha had gone out. The caller told
him that he should inform Nitin that Bhai had called him. After some
time, he received call on his phone from brother-in-law of Dinesh
Tukadia (A 9 ), who informed him that he requires Ciena car and
directed him to come to Surat. Witness admitted that he has stated
before CJM that on third day Nitin Modha forgotten his mobile in hotel
when he went out between 6-7 pm. The omission is in respect of
time. In the statement before CJM, witness has stated said fact, but
the exact time of departure of accused No. 11 was not mentioned
therein. Therefore, the said omission is minor in nature and does not
affect the prosecution case.
90] Approver further deposes that, at about 8 pm, Nitin Modha
came to hotel. He told him that he received call from Bhai of Dubai.
Nitin Modha got angry, he told him to leave the hotel immediately and
proceed towards Mumbai. Accordingly, they vacated the hotel.
Witness has admitted that, he did not state before CJM that accused
No. 11 got angry and told him to vacate the hotel and accordingly they
vacated hotel. Witness Samal has stated that accused left hotel in the
evening of 1/8/05. The cause of leaving the hotel is come on record as
an omission. Therefore, it can be ignored. But, the fact remains on
record that, in the night of 4/8/05 accused along with Approver left
the hotel White-house.
91] He further deposes that, he sat on the driver seat of Ciena.
Nitin Modha had occupied seat besides him. Chhotu Ghisaiwala (A 10)
and Prasad Shetty (A 2) occupied the rear seat. He further deposes
that, Nitin Modha told him that in a short time, one Santro would
come which was to be followed. Accordingly, Santro came in fast
speed, he followed said car up to Nigdi bridge, but he lost the track of
Santro after Nigdi bridge. He further deposes that, as they could not
trace Santro, they came below Nigdi bridge where Indica was
stationary wherein Chhotu Choudhary (A 4) and Dinesh Tukadia ( A 9 )
were present. Thereafter accused Jitu Modha came there. Then both
the vehicles proceeded towards Ashapura Dinning Hall. Thereafter
there was quarrel between Jitu Modha and Nitin Modha. Jitu Modha
told Nitin Modha to move Gujrat and wait for his signal. The reason
for quarrel was on account of not giving proper information about
Sagar. In the cross-examination, witness admits that he did not state
before CJM that, both the vehicles proceeded towards Ashapura
Dinning Hall where there was quarrel between Jitu Modha and Nitin
Modha on account of not giving proper information about Sagar. The
witness Samal had also referred the quarrel between Jitu Modha and
Nitin Modha in the hotel. The cause of quarrel is not stated by witness
Samal, but Approver has given cause of quarrel. But, this part of
quarrel is omission, therefore, it is required to be ignored. But, the fact
remains on record that, as per direction of Nitin Modha, Approver
chased Santro car up to Nigdi bridge, but thereafter said car
disappeared, thereafter Approver met accused Nos. 4 and 9 in Ciena
car, similarly accused no. 6 was present there. So, it can be said that
there was some plan to follow the car of Sagar in order to abduct him.
92] Approver further stated that since it was raining, Jitu Modha
told that he was unable to take Sagar for outing. Thereafter at about
11 pm, he along with other accused left for Gujrat. In the cross-
examination, he admits that, he did not state before police that Jitu
Modha told Nitin Modha that as it was raining, he was unable to take
Sagar for outing. But it appears that, accused Nitin Modha had
information that Sagar would pass from Nigdi bridge, therefore, they
followed him. So, it can be said that, accused Jitu Modha and Nitin
Modha had knowledge about the passing of Sagar from Nigdi-Pimpri
road, therefore, they followed it. So, the omission is in respect of
cause of non-availability of Sagar is not crucial.
93] He further deposes that, on the next day, he reached Surat. Nitin
Modha had no money left with him. The fare of both vehicles was to
be paid. Nitin Modha asked him about availability of goldsmith as he
wanted to pledge his ornaments. Dinesh Tukadiya told him that said
arrangement can be made. Then both the vehicles came to Hirabag.
He along with Dinesh Tukadia and Nitin Modha approached one
jeweler. Nitin Modha gave two chains to him who gave them Rs.
12,500/-, out of which Nitin Modha gave Rs. 5,000/- to Dinesh Tukadia
as vehicle fare. Actual fare was Rs. 10,500/-. Thereafter Dinesh
Tukadia went away. Nitin Modha promised him to pay rest the amount
after returning to India. Nitin Modha gave some amount to Chhotu
Choudhary (A 4). Nitin Modha also told Chhotu that he would settle his
account after sometime. He further deposes that, he then sent
Prasad Shetty, Chhotu Ghisawala to Baroda and directed them to
bring Rs.1500/- and mobile from Dinesh Lariwala. Thus, he and Nitin
Modha then left. Nitin Modha asked him to take one room in hotel.
He took room in Ashirwad Hotel at Varasa road, Surat.
94] Nitin Modha told him to stay in Surat. Nitin Modha told him that
after Prasad Shetty, Chhotu Ghisawala would return, he would
proceed to Pune again, where Sumo was sent, thereafter they would
go for outing. Nitin Modha gave him Rs. 200/-. Thereafter he came to
the house of his cousin Ramesh. Witness admits that he did not tell
before police that he and Nitin Modha only left therefrom. Thereafter,
Nitin Modha told him to take room on rent. Accordingly, he took room
in Ashirvad Lodge at Varasa road. The said omission is in the form of
description regarding stay of Nitin Modha at Surat. The said evidence
is simply denied by way of suggestion.
95] To support the evidence of Approver regarding mortgage of
ornaments, prosecution has relied on evidence of Jayesh Jogani (PW
14). According to him, he owns jewellery shop in the name of Jayesh
Jogani, Choxi. He deals in pledging of gold and silver ornaments. He
also advances loan on gold and silver ornaments. He possesses
money lending licence. Working hours of his shop are 10 am to 7.30
pm. He further deposes that, whenever customers come to his
shop, he checks purity of metal and weight and then advances money
to the extent of Rs. 60,000/- to 70,000/- on the value of metal. He
also states that at the time of pledging, he issues receipt to the
customer. Similarly, at the time of releasing the property, he obtains
receipts from the customer. According to him, police had been to his
shop in September 2005, along with Narayan Jameria. He deposes
that, Narayan Jameria along with Nitin Modha had been to his
shop, for the purpose of getting loan on gold. Nitin Modha took out
gold chains for the purpose of pledge. He checked its purity and
advanced amount of Rs. 12,500/-. He further deposes that, amount
was handed over to Narayan and the receipt was prepared in the
name of Nitin Modha. He admits that, he mentioned name of Narayan
Jameria in the receipt. About 15-20 days thereafter, Narayan had been
to his shop, he repaid Rs. 12,500/- along with interest, thereafter he
returned two gold chains to him. Accordingly, his statement was
recorded by police. He has produced on record office copy of bill issued
by him in the name of Nitin Modha and Narayanbhai (Exh.282).
Similarly, he has also proved receipt issued by Narayan in his favour
after receiving the gold ornaments from him (Exh. 283).
96] In the cross-examination, he admits that he started his business
in the year 1998-99. He was not having staff at the relevant time. He
admits that, he was aware that necessary record needs to be
maintained for the purpose of money lending business. There is no
practice of audit of money lending business separately. For the
purpose of Income-tax necessary audit is done through C.A. At the
time of renewal of licence the earlier licence needs to be shown to the
authorities. He also admits that, he maintains register containing
entries of purity , amount advanced towards loan weight of metal etc.
There is no column of signature of borrower. He also admits that, at
the time of returning metal, the entry is taken in the register. The
receipt book, bill book is maintained in duplicate, one original and one
is office copy. The signature of borrower is obtained on the bill
book. He also admits that he does not remember the exact number of
persons to whom he advanced loan against gold. Prior to this
transaction, Narayan had been to his shop on two occasions. He had
paid loan amount and received gold ornament. Narayan was a tall
person having height of 5.8 ft. He also admits that, the police had
been to his shop, they had shown photograph of Nitin Modha and
asked him whether he was accompanying Narayanbhai at the time of
pledging gold. Police did not seize register, nor he gave it to police.
From the evidence of Jayesh it is aptly established that Approver and
accused Nitin Modha had been to his shop. Nitin Modha had pledged
his two chains with jeweler and took loan of Rs. 12,500/-. The
witness has categorically stated that, he received amount of Rs.
12,500/- towards repayment of gold loan and Rs. 143/- towards
interest and accordingly, he received Rs. 12,643/-. The said receipts are
properly proved by prosecution, therefore, the story narrated by
Approver regarding pledging of gold ornaments by Nitin Modha is
established. Witness Jayesh (PW 14) has substantiated the evidence
of Approver. So, it appears from the evidence of Approver that after
leaving hotel White -house, he along with accused came to Surat
where accused Nitin Modha pledged his gold ornaments and received
Rs. 12,500/- , out of which he paid Rs. 5,000/- to Dinesh Tukadia (A 9),
Rs. 1500/- to accused Prasad Shetty and, Chhotu Ghisaiwala (A 10)
and also paid Rs. 200/- to Approver and then they dispersed to meet
again for proceeding towards Pune.
97] As far as third trip from is concerned, Approver deposes
that, three days after arrival from Pune, he received call of accused
Nitin Modha. He told him that he would reach Surat in the morning at
about 11 am, from Pune. On the same day at about 11 am, Nitin
Modha gave him call and directed him to visit Hirabaug Circle.
Accordingly, he went there he saw white coloured Sumo. Nitin Modha
told him that he has to drive Sumo. He asked him about the
documents of vehicle. Nitin Modha told that he does not possess the
documents, but he would arrange for the same from agent. He further
deposes that, Nitin Modha called his friend Khanna @ Paras of Surat,
on his mobile. He came there who took him to agent who promised
him to provide documents by paying Rs. 40,000/-, but Nitin Modha
dropped the said idea.
98] Approver further deposes that, Sumo was the same vehicle
which was owned by Bhikubhai Thanki (A 5) on which there was lien of
finance and the documents of the same were with the financier. The
said vehicle was taken by Bhikubhai Thanki to Pune. The above
evidence is simply denied by defence. He further deposes that, the
Sumo was parked in front of the house of Khanna @ Paras. He took
him and accused Nitin Modha to hotel Deepmala near Railway station
in his Ambassador car. On next day morning Nitin Modha called Paras
in hotel then they went to the place where Sumo was parked. Then
Nitin Modha broke both the number plates of vehicle and directed
Paras to take the vehicle to some painter. While they were proceeding,
he ( Approver ) received call on his mobile bearing No. 0097, the caller
told him that he had sent an amount of Rs. 20,000/- in UAE bank in his
name as suggested by Nitin Modha . Then they reached a shop of
painter. He told Nitin Modha in respect of receipt of telephone call.
Nitin Modha told him to go to UAE bank and collect the amount. He
and Chhotu Ghisaiwala (A 10) reached said bank, however at that time
working hours of the bank were over, then they returned to the painter.
The above portion is brought on record as an omission.
99] Witness further deposes that, the number plates were painted
with white paint. The painter called them in the morning as the paint
was wet. Then they dropped Paras to his house and then came to
Deepmala hotel. At about 9 am, Nitin Modha told him to come with
him to UAE Bank to withdraw the amount. Then Approver and Nitin
Modha went to said bank in Sumo. In the bank, bank officer
demanded identity proof of Approver. Approver was having identity
card of Shivsena Porbandar, he furnished its photocopy to the bank
and then Rs. 19,500/- were paid to him. Approver gave said amount
to Nitin Modha, then Nitin Modha called Paras to get the number plates
painted. He told that his brother Khaddu would take them to painter.
Then they went to the house of Paras. Nitin Modha wanted the vehicle
to be serviced. Therefore, Khaddu took the vehicle to service station.
Then Prasad Shetty (A 2) called Nitin Modha and told that his brother
Bhima and Dinesh Tukadia (A 9) had come to the hotel Deepmala.
Nitin Modha then directed them to come to service station.
Accordingly, Prasad Shetty (A 2), Chhotu Ghisaiwala (A 10) , Dinesh
Tukadia (A 9) and his brother ( Approver) Bhima came there. After
servicing the vehicle, they went to another painter and as per
direction of Nitin Modha number of Sumo was changed from GJ-11/E-
4992 to GJ-14/E-4992 was painted on the number plates of Sumo. He
further deposes that, Nitin Modha paid Rs. 5,000/- to Dinesh Tukadia
(A 9) and assured him to pay remaining amount after some time. The
said part of the evidence is also come on record as an omission.
100] On the basis of above evidence learned advocate Shri.
Koshe has vehemently submitted that, the collection of amount from
UAE Bank and change of number of Sumo is brought on record as an
omission, therefore, that evidence is required to be ignored. It is true
that, Approver did not state the above facts before CJM while
recording his statement u/s 164 of Cr.P.C. But, the fact remains on
record that, the number of Sumo was changed from GJ-11/E-4992 to
GJ-14/E-4992. On that count prosecution has produced on record the
letter issued by Regional Transport Office, Porbandar (Exh. 520),
through investigating officer Rajendra Joshi. According to Rajendra
Joshi, to verify the owner and real number of Sumo, he wrote said
letter to RTO Porbandar, in reply to it, RTO has given the original
number of Sumo used in the crime was number of Sumo was changed
from GJ-11/E-4992 and it was owned by Rubicon Industries. The said
vehicle was transferred in the name of Bhikubhai Thanki (A5) on
16/4/02. Investigating officer Rajendra Joshi (PW 54) had also sought
information from Asstt. Superintendent Ambareli, regarding vehicle No.
GJ-14/E-4992. The said RTO replied that vehicle number of Sumo GJ-
14/E-4992 was not assigned to any vehicle, hence no information was
supplied by them. So, it can be said that GJ-14/E-4992 was not
issued to any vehicle by the RTO Ambareli. When the Sumo was
seized, it was bearing number GJ-14/E-4992. Therefore, it is
established from the documents on record that Sumo was owned by
Bhikubhai Thanki (A 5) and its original number was GJ-11/E-4992 and
it was changed to GJ-14/E-4992. The document supports the case of
prosecution that Sumo owned by Bhikubhai Thanki (A 5) was bearing
No. GJ-11/E-4992 and it was changed to GJ-14/E-4992 at the instance
of accused Nitin Modha.
101] Approver further deposes that, on 13/8/05 while he was on
driving seat, Nitin Modha (A 11), was besides him and Prasad Shetty (A
2) , Chhotu Ghisaiwala (A 10) were on the rear side of the vehicle and
Dinesh Tukadia (A 9) was standing outside. Nitin Modha brought
liquor in the vehicle and except Approver everybody consumed the
liquor. At that time, Nitin Modha received some call on his cell phone,
he suddenly became angry, threw three idols of God in the front
dashboard of the vehicle. The said fact is also brought on record as
omission. But these facts are also not material, as far as allegations
are concerned. He further deposes that, Nitin Modha told him to take
vehicle immediately to Pune. Accordingly, at about 9 pm, he along with
Nitin Modha, Chhotu Ghisaiwala (A 10) and Prasad Shetty (A 2)
proceeded to Pune. It was raining heavily. The said fact is simply
denied by the defence. He further deposes that, when they reached
near Vasai approach road, alternator of the vehicle was broken at
about 3 am. All the garages were closed, hence, they waited for 3-4
hours and in the morning got repaired alternator at 4 pm, and then
they proceeded to Pune. The said facts is also brought on record as an
omission.
102] He further deposes that, at Dehuroad, diesel was filled in the
vehicle. Nitin Modha received call at about 7.30 pm, on his cell phone
and then he told him that they would reach city of Pune at 8 pm. He
further deposes that, at about 8 pm, they started towards Pune. They
passed Nigdi bridge. Nitin Modha directed him to turn the vehicle
towards Mumbai side. Thereafter he directed him to take vehicle by the
side of road. Accordingly, vehicle was taken to the side of road. Nitin
Modha, Chhotu Ghisaiwala (A 10) and Prasad Shetty (A 2) got down and
stopped at some distance from Sumo. He was told that, they would
stop one Santro in which they would take lift. Once they sit in the
Santro, he was directed to follow the Santro by Sumo. After about
10-15 minutes a Santro car came there. Nitin Modha stopped it. He
talked with the driver of Santro car for 2-3 minutes and thereafter all of
them boarded Santro car. Santro car lowered its speed at Nigdi
bridge, hence, he overtook Santro and stopped Sumo in front of Santro.
He saw that Prasad Shetty (A 2) was sitting besides the driver. In the
rear seat, Nitin Modha anad Chhotu Ghisaiwala (A 10) were sitting.
When Santro stopped near Sumo, Nitin Modha asked him as to why
he stopped Sumo. He told that since he did not know where to go,
he was stopped. Thereafter, both the vehicles proceeded further. At
some distance, Santro was stopped. Prasad Shetty (A 2) got down
from Santro and came to the right side of car and talked to the driver
of car. Thereafter he sat on the driver seat and Santro started. He
followed the Santro. This part of evidence is simply denied.
103] Approver further deposes that, due to the screen of the rear
side of windshield, of Santro he could not see anything in the car.
The said fact is brought on record as an omission, but it is not material,
because he had already stated that Nitin Modha, Prasad Shetty (A 2)
and Chhotu Ghisaiwala (A 10) had boarded Santro car. He further
deposes that, Santro stopped at some distance, he also stopped
Sumo. Nitin Modha alighted from the Santro, followed by Sagar and
Chhotu Ghisaiwala (A 10). They came towards Sumo. Chhotu
Ghisaiwala (A 10) sat in the Sumo. Sagar was also made to sit in the
Sumo Thereafter Nitin Modha sat in the Sumo. Nitin Modha then
directed him to follow the Santro driven by Prasad Shetty (A 2). At that
time, Sagar asked Nitin Modha as to where he was taken. He told
Nitin Modha that his aged mother was waiting at home. His father was
not at home. He had brought the food for his mother which was in the
Santro car. Upon this, Nitin Modha told him that the moment he gets
ransom from his father, he would be released, till that time, they would
be having outing at Khandala. Over this, Sagar asked him as to how
much amount he wanted. He also said Nitin Modha that they were
friends and such thing was not expected from Nitin Modha. Upon this
Nitin Modha stopped talking with Sagar. Santro was stopped near
Dehugaon on old highway. Nitin Modha directed him to turn the
vehicle and take it in front of Sumo. Accordingly, he followed him and
stopped the vehicle in front of Santro. Prasad Shetty (A 2) got down
along with parcel in polythene bag. He tried to lock the vehicle, but
could not lock it. Upon this, Nitin Modha asked Sagar to lock it.
Accordingly, Sagar locked the vehicle. This part of evidence is simply
denied.
104] It is the case of prosecution that Santro was found in
abandoned condition at Somatane approach road. I have already
observed that complainant Satinder Shah had stated that he formed
three groups to search Sagar. Accordingly, he sent his cousin Dhiraj
Sahani to trace Santro, who went towards old Mumbai Pune highway
and noticed Santro car at Somatane approach road. Accordingly, said
vehicle was seized by police. Therefore, the evidence of Approver is
corroborated to the case of prosecution that Santro was left in
abandoned condition on old Mumbai highway and it was seized on
15/8/05.
105] Approver further deposes that, Nitin Modha directed him to
take vehicle to Khandala via Express way. After passing toll and
Khandala, Sagar asked Nitin Modha where they were proceeding. Upon
this Nitin Modha told him that they were proceeding to Gujrat. At that
time, Nitin Modha received call on his cell phone and he talked with
somebody at Dubai. He admitted that he did not state in his
statement before CJM that, Nitin Modha was talking with somebody of
Dubai on phone. But it is mentioned in the statement that Nitin Modha
called Bhai at Dubai. So there is oral evidence that Nitin Modha had
given call to Bhai.
106] He further deposes that, at 3 am, they entered Gujrat. At
that time, Nitin Modha called Paras on mobile and asked him about
availability of his vehicle, as Sumo had no valid documents. Paras told
him that condition of his vehicle was not good. Meanwhile they passed
Surat and he started feeling dizzy. Therefore, Prasad Shetty (A 2) sat
on the steering wheel. He further deposes that, at about 8 am, they
reached Baroda on 15/8/05. Witness admitted that he did not state
before CJM that he reached Baroda at 8 am, on 15/8/05. The omission is
in respect of date. He stated in his statement that they reached
Baroda at 8 am. He categorically stated that, they started from Pune
on 14/8/05. therefore, his evidence is cognate in respect of reaching at
Baroda at 8 am on 15/8/05. He further deposes that, Prasad Shetty (A
2) stopped vehicle in some area of Baroda. Nitin Modha then called
somebody from his mobile. At that time, Chhotu Choudhari (A 4) came
there. Above facts are not stated by witness before CJM. He further
deposes that, he started driving the vehicle. He took vehicle at
village Karzan, which is at the distance of 25-30 KM from Baroda. He
requested some of his relative to provide accommodation. They were
provided rooms in a two storied building. After getting fresh and
having lunch, they left. At about 6 pm, Chhotu Choudhari (A 4) took
them to some place in Baroda. The rooms were like servants quarters.
In the evening, Chhotu Choudhari (A 4) brought food for them.
Jagmalsing Choudhary (A 3) and Chhotu Choudhari (A 4) then left. The
above portion is simply denied by defence.
107] To support the story of Approver, prosecution has relied on
he evidence of Jayantibhai Patel (PW 15) He deposes that, in the year
2005 he was running a Bidi and Tobacco shop and owned a flour mill.
He knew Arvind alias Chhotu Choudhari (A 4). he identified accused No.
4 in the Court. He further deposes that, accused No. 4 is son of his
maternal aunt. He had stayed with him for 1 years. He was looking
after his flour mill. Thereafter he left for Baroda. The said evidence is
simply denied by the defence. He further deposes that, on 15/8/05
Chhotu Choudhari (A 4) had been to his residence. He came in a white
Tata Sumo along with some others. Along with him, two persons
came in his house. Chhotu Choudhari (A 4) told him that he along with
others came from Pune. There was some problem in the vehicle.
Therefore, they wanted to say in his home. However, he expressed his
inability as his house was small and he had some guests in his house.
He told him that 5-6 persons cannot sleep in his house. Therefore, he
approached his neighbour namely Arvindbhai. But, he was not present
in house, hence he requested his wife Manjuben to accommodate these
persons. Accordingly, Manjuben provided room on second floor of her
house. He (Witness) made arrangement of bedding for them. He
asked accused No. 4 about arrangement of food, over that accused
No. 4 told that he would bring food parcel from Karzan. Then accused
No.4 took his motor-cycle and went to Karzan and brought food parcel.
Witness gave plates. Then all the persons along with Chhotu Choudhari
(A 4) went on second floor in the house of Arvindbhai, who was
member of Swadhyay parivar. Then at about 4 pm, red coloured Indica
came there. At about 5 pm, Chhotu Choudhari (A 4) came to him and
told that they were leaving. Five minutes prior to arrival of Indica,
Sumo also left therefrom. In the cross-examination, he admits that he
alone looks after the flour mill. He runs flour mill from 2 pm to 6 pm.
At the relevant time he was staying at Kambola along with his wife.
Jayendrabhai Patel, his cousin, his wife and two children had been to
his house on 15/8/05, who are resident of Baroda.
108] Witness Jayantibhai Patel categorically stated that, on
15/8/05, he had guests in his house, therefore, he showed his inability
to accommodate accused No. 4 and his friends in his house. Witness
further admits that he had not introduced accused No. 4 to Manjuben.
Police had not come to his house. Police had come to the house of
Manjuben. Witness also admits that he along with Manjuben were not
called by police at Satkar Hotel. He was not aware about friend circle
of accused No. 4. The said evidence simply shows that police made
inquiry with Manjuben. He further admits that, police brought accused
No. 4 by covering his face with veil. On the said day, his statement
was recorded. He also admits that, after 15/8/05, accused No. 4 did
not come to his house. From the above evidence it is simply
established that witness Jayantibhai Patel is relative of accused No. 4,
who knows him (accused No. 4) as son of his maternal aunt. Therefore,
he had no animus against accused No. 4 to speak falsely. It appears
from his evidence that he gave truthful version that accused No. 4
visited his house, similarly, he described how he helped accused N o. 4
and his friends by providing them accommodation in the house of
Manjuben. The prosecution has not examined Manjuben, but evidence
of Jayantibhai Patel is sufficient to establish that accused No. 4 had
contacted him on 15/8/05 for accommodation and accordingly, he
made arrangement of accused No. 4 in the house of Manjuben.
109] Witness further deposes that, on 14/9/05, police came to
him and inquired with him regarding accused No. 4 and persons
accompanied him. Police showed him photograph of one boy namely
Sagar. He told police that said boy had come to his house along with
accused No. 4 on 15/8/05. The said evidence is simply denied by
defence. He further deposes that, on 5/10/05, he was called by police
at Yerawada Jail for Test Identification Parade wherein he identified 2-3
persons. He identified accused Nos. 2,3, and 11. In the cross-
examination by accused No. 4, he admits that Arvindbhai and
Manjuben told him that on account of his request to accommodate
guests they were required to face police inquiry. He also admits that,
he also faced inconvenience on account of police inquiry. The said
suggestions are accepted by witness Jayantibhai, which suggests that
witness had convinced Manjuben to accommodate accused No. 4,
therefore, they required to face police inquiry and caused
inconvenience. So, by the said suggestion, it is established that
witness Jayantibhai Patel had requested Manjuben to accommodate
accused No. 4 and his friends in the night of 15/8/05.

110] Approver further deposes that, in the morning of 16/8/05,
Nitin Modha left early in the morning. At about 8-9 am, he called him
on cell phone and directed him to give the mobile of Prasad Shetty (A
2). Thereafter they proceeded in Sumo near one shop at
Swaminarayan temple. Chhotu Choudhari (A 4) arranged room on 4
th
floor. They went there. They had lunch with Jagmalsing Choudhary ( A
3). Food was brought by Chhotu Choudhari (A 4). He further deposes
that, Chhotu Choudhari (A 4) also brought some essential
commodities like bedding, buckets etc. They stayed there for 3 days.
Food was arranged by Jagmalsing Choudhary ( A 3) and Chhotu
Choudhari (A 4). He further deposes that, Nitin Modha used to go out
at 10 am and used to return in the evening. To support his evidence,
prosecution has relied on the evidence of Vinubhai Patel (PW 24).
According to Vinubhai, he was residing at Akota. Thereafter he shifted
to Baroda. He further deposes that, he knew Jayaben Patel, who was
his neighbour at Akota. The said fact is brought on record as omission.
He knows her brother Chhotu Choudhari (A 4). He further deposes
that, in the year 2002 he shifted to Keshavnagar, Atladarda, Baroda.
One day in the month of August 2005, accused No. 4 came to his house
in the evening. He wanted house on rent. A house on 4
th
floor in front
of his house was available on rent. The said house was owned by one
Rana. He told accused No. 4 that rent would be Rs. 500/-, advance of
Rs. 500/- and he would be required to pay it and his commission Rs.
300/-. On next day accused No. 4 gave him Rs. 1300/- to landlord.
Approver admits that he did not state before police that accused No. 4
paid Rs. 1300/- to Rana and he gave key of the premises to him. But it
is proved by witness that rent of the premises was fixed at Rs. 500/-
plus advance of Rs. 500/- and commission of Rs. 300/-. The payment of
rent to landlord Rana is brought on record as an omission.

111] Witness Vinubhai (PW 24) further deposes that, he
accompanied accused No. 4 and thereafter landlord rented out the
premises to accused No. 4. He further deposes that, accused No. 4
along with 4-5 persons then resided there. He had seen persons who
stayed with accused No. 4 in the said premises. They had come
along with white coloured four wheeler trax. They were also
accompanied a boy about 22-21 years old. They stayed in the said
premises for about 8-10 days. Witness Vinubhai Patel admits that he
did not state before police that accused No. 4 accompanied 4-5
persons including one boy aged about 20-21 years. But, he admits
that accused had come to his house probably on or about 15/8/05. He
also admits that he does not remember on which date Chhotu
Choudhari left the premises. He also admitted that no receipt was
issued to him. No document was executed in this respect. He also
admits that, he did not state before police that accused No. 4 came
to him and he gave him Rs. 1300/-. In fact, witness has stated that
accused No. 4 paid Rs. 1300/- to landlord. Therefore, there is no
question of any payment to witness Vinubhai.
112] Vinubhai further admits that, on 15/9/05, police from Pune
approached him. They recorded his statement. Thereafter on 5/10/05
he was called at Yerawada Jail for Test Identification Parade. In the Test
Identification Parade he identified 2 persons namely accused No. 4 and
11. In fact, on 5/10/05, accused No. 11 was not arrested, therefore,
the evidence of this witness is not correct that he identified accused
No. 11 during Test Identification Parade on 5/10/05. Witness further
deposes that, on 30/6/05, he was again called for Test Identification
Parade, wherein he identified accused No. 4 and 11. Witness has
identified accused No. 4 in the Court. Similarly, he also identified
accused No. 11 in the Court. Therefore, there is no ambiguity in the
evidence of Vinubhai. In fact, Vinubhai is independent witness, he
knew accused No. 4 much prior to the incident. He had explained how
he was knowing him. He had given correct date of visit of accused No.
4 to his house. No doubt, witness has stated that accused No. 4 along
with 4-5 persons stayed in the house of Rana for 8-10 days. It appears
from story of prosecution that accused stayed there for about 8 days,
therefore, the said omission is not material, because Vinubhai has
substantially established that accused No. 4 along with other 4-5
persons including accused No. 11 stayed in the house of Rana from
15/8/05 for 8-10 days.

113] In the cross-examination, Approver admitted that the
house at Karzan belongs to Chhotu Choudhari (A 4) who was driver of
accused No. 3. Chhotu Choudhari (A 4) joined them at Baroda.
Nobody met them at Karzan. The premises at Baroda was rented by
Chhotu Choudhari (A 4). Chhotu Choudhari (A 4) then took them to the
premises near Saminarayan temple and they stayed there from
16/8/05 to 22/8/05. The said admission speaks about the role of
accused No. 4 who made arrangement of Approver, Nitin Modha,
Prasad Shetty (A 2) , Chhotu Ghisaiwala (A 10) and Sagar at Baroda as
well as near Swaminarayan temple. The said suggestion also
corroborates the evidence of Jayantibhai Patel (PW 15) and Vinubhai
Patel, who have categorically stated that, accused No. 4 had brought
his 4-5 friends to their house and they had made arrangement for
them in the house of Manjuben and in the house of Rana.
114] Approver further deposes that, 3-4 days thereafter Nitin
Modha brought one tape-recorder along with micro cassette. Nitin
Modha told Sagar that his conversation was required to be recorded
for sending it to his father, so that he would pay the amount of ransom.
He further deposes that, Sagar told that his conversation should not
be recorded in presence of others. At that time, Prasad Shetty (A 2)
was sleeping in the room. Nitin Modha directed him and Chhotu
Choudhari (A 4) to go on terrace of the building. Accordingly, he along
with Chhotu Choudhari (A 4) went on the terrace of the building for an
hour. Thereafter Nitin Modha left along with cassette and tape-recorder.
He ( Approver ) admits that he did not state before police that Nitin
Modha told Sagar that as conversation was needed to be recorded for
sending it to his father, so that his father would pay the amount of
ransom. At that time, Sagar told Nitin Modha that he should not record
his conversation in presence of others, at that time, Prasad Shetty (A
2) was sleeping. But, Approver has stated that Nitin Modha asked him
and Chhotu Choudhari (A 4) to go on terrace and the voice of Sagar
was recorded on cassette. In cross-examination, witness admits that
he does the remember the date when Chhotu Choudhari (A 4) returned
from Pune. He admits that he came to know from Chhotu Choudhari
(A 4) that he was sent to Pune for keeping cassette in Khandoba
temple at Akurdi. To substantiate the same, the evidence of
complainant Satinder Sahani (PW 2), Sudhir Sahani (PW 3) and Suresh
Rupesha (PW 4) and investigating officer Rajendra Joshi (PW 54) is
very crucial.
115] According to complainant Satinder Sahani, on 20/8/05 at 8 am,
he received telephonic call from abductor who told him that cassette
containing voice of Sagar was kept below eucalyptus tree in Khandoba
temple, Akurdi. In fact, the said phone was received by complainant
on 19/8/05, when he was in the police station. he had wrongly given
the date of phone as 20/8/05. He further deposes that, he informed
said fact to police, accordingly, police along with Sudhir Sahani and
Suresh Rupesha went to Khandoba temple. Suresh Rupesha went in
the temple and found one box sealed wit red tape, which was handed
over to police. It was containing small audio cassette, which was
played in the police station and he identified the voice recorded in it
as of Sagar. Similar evidence is given by Sudhir Sahani (PW 3) who
deposes that on 20/8/05 complainant received telephonic call from
abductor who gave information about the cassette kept in Khandoba
temple, Akurdi. Hence, he along with Suresh Rupesha went to temple
along with police and found packet wrapped in red sticking tape,
which he picked up and gave to police. The said packet was
containing micro cassette which was played in the police station
wherein he identified voice of Sagar recorded in it. Similar evidence is
also given by Suresh Rupesha that on 20/8/05 he accompanied
complainant to Crime Branch office, at that time complainant received
call from abductor and informed him about keeping of cassette in
Khandoba temple. Accordingly, he along with Sudhir Sahani and police
went there and found cassette kept in the temple, which was played in
the police station wherein he identified the voice of Sagar. There is
discrepancy in the date of finding of cassette. Complainant, Sudhir
Sahani and Suresh Rupesha deposed that cassette was found on
20/8/05, in fact it was found on 19/8/05 and accordingly, panchanama
was prepared (Exh. 483). So, the evidence of Approver on the point of
recording of voice of Sagar by Nitin Modha and sending said cassette
to Pune, was substantiated by the evidence of complainant, Sudhir
Sahani and Suresh Rupesha. Similarly, investigating officer Rajendra
Joshi (PW 54) has also prepared transcription panchanama of
cassette. Therefore, the evidence of Approver is substantiated on the
point of recording of voice of Sagar by Nitin Modha in cassette.
116] Approver further deposes that, meantime there was
festival of Rakshabandhan. Accused Prasad Shetty (A 2), Chhotu
Choudhari (A 4) and Chhotu Ghisaiwala (A 10) went outside. He was
alone with Sagar. Sagar used to call him as uncle. He asked Sagar
whether he had any sister, he answered in affirmative. He told Sagar
that if he would have money, he would drop him Pune by Sumo. Sagar
told him that he had Rs. 5000/-, but Nitin Modha snatched it. There
was no balance in his mobile as all time was exhausted by Nitin Modha.
He further deposes that, in the evening Sagar told Nitin Modha that he
( Approver) was ready to drop him at Pune, upon which Nitin Modha
scolded him. Nitin Modha also threatened him with dire consequences.
He threatened him that by telling Bhai at Dubai he could eliminate
him and his family. The above evidence is brought on record as
omission. Therefore, it can be ignored.
117] Approver further deposes that, on next day, accused Nitin
Modha went to Baroda along with Prasad Shetty (A 2) and brought
mobile of Reliance company, for Prasad Shetty (A 2). Nitin Modha
asked him whether he need anything, but he replied in negative. The
said evidence is brought on record as an omission. Witness further
deposes that, seven days had passed. Chhotu Choudhari (A 4)
brought food and liquor. They all had food together. Nitin Modha
stayed in some other hotel in the night. He consumed liquor and woke
up at 5 am. AT 9 am, Nitin Modha came there. The said incident had
occurred on 22/8/05. This evidence is also brought on record as an
omission, because Approver admits that he did not state said facts
before CJM while recording his statement. He further deposes that, on
22/8/05 Prasad Shetty (A 2) was driving vehicle. All of them had
breakfast at hotel at Tarapur. Then they proceeded towards Anand
road. Nitin Modha then called father of Sagar from his cell phone. He
directed Sagar to talk with his father and told him that in case, amount
of ransom was not paid, he would be killed. Accordingly, Sagar told his
father that in case amount of ransom was not satisfied, he would be
killed by abductors. At that time, Prasad Shetty (A 2) snatched mobile
from Sagar and told father of Sagar that he was giving 8 hours to him
to fulfill the demand, else cut head of Sagar would be sent to him.
118] Approver admitted that he did not state in his statement
before CJM that, Sagar told his father that in case amount of ransom
was not satisfied, he would be killed by abductors. The omission is in
respect of words killed by abductors. He had simply stated that
Sagar told his father that if amount of ransom would not be satisfied,
he would be killed. So, the omission is not material. He further admits
that, he did not tell before CJM that Prasad Shetty (A 2) snatched
mobile from Sagar and told father of Sagar that he was giving 8 hours
to him to fulfill the demand, else cut head of Sagar would be sent to
his house. The omission is in respect of 'time of 8 hours' and 'cutting
of head'. It appears that, Approver had stated that Prasad Shetty (A 2)
snatched mobile and told father of Sagar that he was giving some
time to him to fulfill the demand, otherwise cut head of Sagar would be
sent to his home. So, the omission brought on record is also not
material, because, the sum and substance of evidence of Approver is
that, Sagar had talk with his father, mean time, Prasad Shetty (A 2)
took mobile from Sagar and had a talk with father of Sagar, whereby he
gave him short time for fulfillment of demand.
119] Approver further deposes that, Nitin Modha asked him to
take vehicle to village Chotila, where there was temple of Samunda.
When they reached near Chotila, Nitin Modha called his brother-in-law
Bhikubhai Thanki (A 5) and asked his whereabouts. Bhikubhai told
him that he was proceeding to Chotila in a tourist bus. Upon it, he
directed him to get down and book some hotel. When he reached
Chotila Bhikubhai Thanki (A 5) had booked rooms in Shrinagina hotel.
Nitin Modha, Sagar, Prasad Shetty, Chhotu Ghisaiwala (A 10) stayed in
one room whereas he along with Bhikubhai Thanki (A 5) stayed in
another room. Meanwhile Sagar was persistently asking Nitin Modha
as to when he would be freed. Nitin Modha used to tell that as and
when his father would pay the amount of ransom and call to that
effect would be received from Bhai of Dubai, he would be sent to Pune.
The said evidence is simply denied by the defence. So, according to
Approver, he had stayed at Chotila and arrangement was made by
Bhikubhai Thanki (A 5).
120] To substantiate said evidence, prosecution has examined
Yogesh Jaiswal (PW 13). According to him, he owns guest-house viz.
Shri Nagina Guest-house. There are 19 rooms in all. In the year 2005,
he had employed two persons namely Bharat and Naresh. He further
deposes that, he used to enter names of customers in the register as
told by them. Similarly, he used to obtain signatures of customers on
the register. The amount of advance paid by customers is also used
to be mentioned in the register. He further deposes that, on 15/9/05
Maharashtra police had been to his guest-house along with two veiled
persons. By removing veil of one of the persons, he was asked by
police whether the said person had been to his guest-house. He took
out register. The veiled person whose veil was removed, had shown
entry from the register, in respect of visit at guest-house on 22/8/05. At
that time, accused told his name as Bhikubhai Thanki. According to
him, he made entry in the register and obtained his signature. He had
given room no. 14 to the customer. He further deposes that, Tanki
demanded another room by telling that his other guests were coming
to hotel. His guests arrived in the hotel at 9.30 to 10 pm. They came in
Sumo. He deposes that, he used to record number of vehicle of
customers, who come to his hotel. While parking Sumo, driver had
dashed the iron railing, hence he told him to park vehicle carefully.
There were 4-5 persons who came in Sumo. In respect of these person,
the entry in the name of Vikas bhai was made. He made entry. It was
signed by person who gave his name as Vikasbhai. Police seized 2
registers from his guest-house ( Exh. 161, 162). He further deposes
that, number of Sumo was mentioned in the register as GJ-14/E-4992.
The entry was made by the person who came in Sumo. One of the
persons who came in Sumo was having gold quoted tooth, but he
showed his inability to identify other person. He further deposes that,
he was called at Pune for Test Identification Parade, wherein he
identified some accused. But, he does not remember as to how many
accused he had identified in Test Identification Parade. Witness has
identified Bhikubhai Thanki (A 5) in the Court.
121] In the cross-examination, he admits that, he was not
possessing licence for his guest-house. He had applied for the same.
Police used to visit his hotel once in a while to check the register. he
was not prosecuted for not possessing licence. He used to maintain
the registers as per the rules. He was aware that printed register is
required to be maintained at Hotel . He also admits that at the relevant
time he was not maintaining printed register. He had maintained bill
book. At the relevant time he was not maintaining muster register and
duty register. he had engaged manager for his guest-house, by name
Sanjay bhai. He further deposes that, at the time of evidence he had
employed 4 managers in his hotel for different shifts. He also admits
that, rooms were not fully occupied every time. It is difficult to
remember the description of guests who stayed in hotel on given date.
Witness also admitted that in register (Article 161) vehicle number is
not mentioned. The number of occupant is mentioned as 3. He
also admits that, in the register (Article 161) there is column in
respect of number of vehicle. He admits that, there is no entry in
respect of checkout hours. Witness volunteers that these columns are
mentioned in register ( Article 161). In the register (Article 161) the
entry was in the name of Bhikubhai Dayaram. There is no entry in the
name of Bhikubhai Thanki. In fact, the name of Bhikubhai Tanki is
Bhikubhai Dayaram Thanki. So, his surname is not mentioned in the
Register ( Article. 161). But, the name of accused and his father's
name is correctly mentioned. So, there is no ambiguity in the said
entry. Witness further admits that, room number 113 was changed to
114 in the said register. In the register ( Article 161), checking out
time and vehicle number is not mentioned. He admits that in register (
Article 162) , check out time is not mentioned. So, from the said
admission, it appears that, entries in registers (Articles 161, 162) were
made at the instance of Bhikubhai Thanki and somebody else who gave
his name as Vikasbhai. But witness has categorically stated that,
guests of Bhikubnai stayed in two different rooms. The Approver has
categorically stated that, he along with Bhikubhai Thanki (A 5) and rest
of accused stayed in different rooms. So, evidence of Yogesh has
substantiated the evidence of Approver on the point of his stay along
with other accused at Shri Nagina guest-house.
122] Witness further admits that, in register ( articles 161, 162),
the last entries were made dated 4/9/05. He admits that, there are no
signatures of himself and panchas on the page wherein entries of
22/8/05 were made. It was suggested to him that on 4/9/05 police
came in the hotel and seized register, therefore, there are no entries in
the said register after 4/9/05. Witness admits that he started new
register on 5/9/05. On the basis of said admission, learned advocate
Shri. Koshe has vehemently submitted that, the register was seized
prior to 5/9/05, but it was shown to have been seized on 15/9/05. it
appears that, ATS Gujrat apprehended some accused including
Approver on 5/9/05, therefore, there is possibility that register of guest-
house might have collected by police on 5/9/05, therefore, witness
Yogesh was required to start new register on 5/9/05. It appears from
the evidence of Yogesh Jaiswal that police had come to his guest-
house along with two persons and ATS Gujrat had seized extract of
register ( Articles 161, 162). Witness has categorically stated that, one
of the guests who came in Sumo has gold quoted tooth. The said fact
is not specifically denied. Witness has categorically described the said
person with specific identification mark. The Approver had gold
quoted tooth. Therefore, it can be said that witness has identified
accused No. 5 and Approver, as his guests, on 22/8/05.

123] Approver further deposes that, they left Chotila at about 4
pm. On the way, Prasad Shetty (A 2) used to threaten Jagmalsing
Choudhary ( A 3) . He deposes that, Chhotu Choudhari (A 4) told him
that he was sent to Pune by Nitin Modha for dropping cassette at some
Khandoba temple. He further deposes that, Chhotu Choudhari (A 4)
narrated the incident of dropping cassette to Pune to Jagmalsing
Choudhary ( A 3). He was told by accused No. 10 that Jagmalsing
Choudhary ( A 3) had plans to disclose about the abducting to police.
Accused No. 2 was, therefore, threatening Jagmalsing Choudhary on
mobile. The said evidence is denied by defence. In the cross-
examination, Approver admits that he does not remember the date
when Chhotu Choudhari (A 4) returned from Pune. During the stay of 7
days, he had consumed liquor for 2-3 times. It was suggested to him
that on the occasion of consuming liquor, he alone was with Sagar, but
said suggestion is refuted. By the said suggestion, it is impliedly
admitted that Approver had consumed liquor for 2-3 times and he was
in the room along with deceased Sagar. So, it can be said that
Approver used to stay along with deceased Sagar when they used to
stay in hotels or guest-house.
124] It is further deposed by Approver that, in the night of
23/8/05 they stopped at a place called Sarkhas near Ahmedabad in
some hotel. Two rooms were booked in hotel. Nitin Modha, Chhotu
Ghisaiwala (A 10) and Sagar stayed in one room and he and Prasad
Shetty stayed in another room. Next day they left at 3 pm. At that
time, Nitin Modha told Sagar that on that day he would be released
after receiving phone call from Dubai. He further deposes that, they
proceeded Pavagad, however Chhotu Ghisaiwala (A 10) told that police
security near Pavagad is strong and they were not possessing
documents of vehicle. Hence, they turned back and proceeded
towards Anand. In the cross-examination, witness admits that he does
not remember the name of hotel where they stayed at Sarkhas.
Theabducted boy did not stay with him for the night. He did not know
about the conversation of Sagar took place in the said night. He
further deposes that, on 25/8/05 at 3 am, they left hotel at Sarkhas.
He was driving the Sumo. So, the visit of Approver to hotel at Sarkhas
is impliedly admitted by suggestion to witness that he does not
remember the name of hotel where they stayed at Sarkhas. Similarly,
it is specifically suggested that they left Sarkhas at 3 pm on 25/8/05
and Approver had admitted it.
125] Approver further deposes that, they went to Chikodrachokadi.
There was hotel of his friend Pravinbhai Patel. They took food there. He
had a word with the owner of hotel for arranging a room. At that time,
Nitin Modha noticed 5-6 police in the garden of hotel. He doubted that
they were from Pune. Therefore, he told them to pack up and leave
immediately. The said evidence is denied by the defence. In the cross-
examination of approver, on page No. 45, he admits that on 24/8/05 he
came to know that police of Pune were searching them. Witness
volunteers that the said fact was told to him by Nitin Modha. It was
also suggested to witness that when he came to know that police were
searching them, he did not decide to part from the company of other
accused. Said suggestion is also refuted. It was further suggested to
him that he had taken the vehicle to hotel of Parvinbhai Patel near
Sikodra chowky and then at 12 in the night to 1 am, they left for
Pune. At that time, he had no documents of Sumo. These
suggestions impliedly prove that after having doubt about police
personnel, Approver and other accused decided to leave hotel at
Chikodrachokadi and they proceeded towards Pune. So, the suggestion
also substantiates the evidence of Approver.
126] Approver further deposes that, at 3 am, on 25/8/05, they
stopped at hotel Bhagyodaya which was on the way to Wapi to Balsad.
At about 10 am, suddenly Gujrat police entered in to hotel and checked
his baggage. At that time, Nitin Modha told police that they were
tourist and proceeding to Bhavnagar. He further deposes that, they
left at about 4 pm and reached Wapi. In the cross-examination,
Approver admits that they stayed Bhagydaya hotel on highway No. 8
for about 12 hours. He reached hotel at 4 pm on 25/8/05 and
proceeded on highway No. 8 and reached hotel Wapi at about 5 pm.
The said admissions re-iterates that Approver and co-accused had
been to Bhagyodaya hotel on 25/8/05, they stayed there for 8 hours
and then they proceeded to Nasik road. It was also suggested that
they had stopped at hotel after place called Kaprala at Nasik road at
about 7 pm and they stayed there for about half an hour.
127] On this point, prosecution has relied on the evidence of
Shantilal Wasava (PW 21), who was working as police constable at
Wapi, GIDC police station. He deposes that, in the year 2005, he was
attached to Wapi, he was on general duty. On 25/8/05 while he was at
home, he received call from driver Rajubhai who was driver on highway
Patrolling Mobile Van. He informed him that a dacoity occurred at
village Udwada within jurisdiction of Pardi police station. He was also
informed that ASI was murdered in the said dacoity. He was
immediately called on duty, therefore, he rushed to Dharampur police
chowky. Driver Rajubhai came there, then they proceeded to village
Udwada. Mobile Van was parked there at Khadaki area. They
received message on wireless to reach Pardi police station, accordingly
they went there. PI Mr. Erada, Local Crime Branch was present there.
He directed him to proceed with PSI Kalsawaa for patrolling duty on
highway to search residents of Godhra, Jambuwa who usually wear
lungi and banian and indulge in crime of dacoity. They reached NH No.
8. At a distance of about one KM, there was Bhagyodaya guest-house.
He went there. PSI Kalasawa parked jeep in front of said guest-house
and directed them to go inside and check. Accordingly, he went to the
hotel along with Ishwar Chimanbhai and Rajubhai.He directed manager
to show the register of hotel, who accordingly showed it to them and
told that some persons had stayed in room Nos. 104 and 106. They
went to room No. 104. Two persons were inside the room. On inquiry
with them, they told that they were businessmen from Ahmedabad.
Then they went to room No. 106, the person who opened the door was
driver of Sumo and the persons in room were from Pune and they were
proceeding to Ahmedabad. Since they were tired in the journey, they
halted there. One of them had a tooth with golden cap and one of
them had French cut beard. Another person was short in height. A
boy of fair complexion approx. aged about 20-21 age was also
accompanied with them. There were two tall persons in the room. They
said that they were students. He checked luggage, but did not come
across any suspicious articles. Accordingly it was told to PSI, who
directed them to again check the persons . Then they again went to
room Nos. 104 and 106 and told PSI that the Sumo parked in front of
guest-house was of the persons staying in room No. 106. Thereafter
they proceeded for patrolling.
128] Shantilal Wasava (PW 21) further deposes that, on 20/9/05
officials of Pune Crime Branch came to Wapi GIDC police station and
showed him a photograph of a person. He told them that it was the
photograph of a boy to whom he had seen on 25/8/05 at Bhagyodaya
guest-house along with other persons. The police officers told him
that the name of said boy was Sagar Sahani who was abducted on
14/8/05 and murdered even after receipt of ransom of Rs. 15 lacs. He
further deposes that, on 6/10/05 he was called at Yerawada Jail for
Test Identification Parade, wherein he identified two persons out of 14
persons. I also identified one person from amongst 7 persons in
another round of Test Identification Parade. Witness has identified
accused Nos. 2 and 8 in the Court as the persons whom he had seen in
hotel Bhagyodaya. Similarly, witness has also identified accused No.
11 as a person to whom he had seen in the said hotel.
129] In the cross-examination, witness Shantilal admits that,
there were no written order issued to him by his superiors to inspect
the guest-house on 25/8/05. While proceeding for patrolling duty,
they did not make make any entry in the station diary. The entries
were made by driver in the log book of the vehicle. He does not recall
the number of Mobile Van used by him. On this point, it is pertinent to
note that, witness has specifically stated that on 25/8/05 he was at
home, he was called for patrolling as there was incident of dacoity
wherein ASI was murdered. He had visited Udwada police station and
thereafter he was specifically directed by PI Mr. Erada of Local Crime
Branch, to proceed on patrolling duty on highway, so there is no
written order to witness to attend patrolling duty on highway. He
further admits that, he had inspected hotels and guest houses such as
Bhagyodaya, Sarvodaya, Aram and Kathewadiya etc. He also admits
that, he had been to Sarvodaya hotel at 11 to 11.30 am. He
categorically stated that, he cannot tell the name of persons whom he
met there. By the said suggestion, it appears that, witness has visited
hotels Bhagyodaya, Sarvodaya, Aram and Kathewadiya etc., on 25/8/05
and took search. He could not give names of persons whom he met
there. He further admits that, he cannot tell the number of rooms he
checked in the said hotels. He also admits that he cannot tell from
where the persons in the rooms of hotel Sarvodaya had come from. He
also admits that, he cannot give the description of occupants of that
hotel. He further admits that, he cannot give the description of
occupants of that hotel. He admits that he had been to hotel Aram at
about 12 noon to 12.15 pm. He cannot tell the numbers of rooms in
that hotel. The witness had deposed in the Court on 10/11/11, whereas
he had taken search of hotel in the month of August 2005. Therefore, it
was not expected from him to disclose the number of rooms he visited
and number of persons he met and made inquiry. However, witness
has categorically stated that, he had visited Bhagyodaya, Sarvodaya,
Aram and Kathewadiya etc. hotels on that day and took search.
Similarly, witness has stated that person he identified has different
features, namely, french cut beard and gold cap tooth. Therefore, he
could remember said person.
130] Shantilal Wasava (PW 21) further admits that, in
Bhagyodaya hotel, he met manager, but he cannot tell his name. He
checked the entries in respect of room Nos. 104 and 106. He also
admits that, he cannot tell the number of persons occupied in the
rooms, but he volunteers that manager told him that only room Nos.
104 and 106 were occupied by the customers. It is also stated by
witness in his examination-in-chief that on inquiry, manager told him
that the guests were in room Nos. 104 and 106, accordingly he had
been to those rooms. So, it is established that on 25/8/05, there were
customers in the Hotel in room Nos. 104 and 106. He further admits
that, guest-house was having 10 rooms on first floor. The guest-house
consists of ground plus one floor. He doesn't remember the name of
owner and he did not check each and every room. He was in the hotel
for about 20-25 minutes. He did not give any written report on 25/8/05
to police station about the patrolling. The said part of evidence is aptly
proves that witness had been to hotel Bhagydaya. He categorically
admitted that he was there for 20-25 minutes. The details of visit
disclosed by witness show that he had been to there for 20-25
minutes to inquire with the customers in the hotel.
131] Shantilal Wasava also admits that he does not remember
whether he had told police that person who opened door told him that
he along with other persons come from Pune and they were proceeding
to Ahmednagar and they stayed in the hotel as they were tired in the
journey. The said portion of evidence is brought on record as an
omission and it is not material.
132] Witness further admits that he cannot tell the exact number
of hotels and guest-houses inspected by him on that day. He further
admits that he inquired with 50-60 persons on that day. At the time of
patrolling and inspection, three persons accompanied with PSI
Kalasawa on some occasions. He also admits that, entry was not
made in Duty Register in respect of his proceeding on patrolling duty.
On account of incident of murder of ASI, they suddenly proceeded on
patrolling. As I have already observed that the witness was called
urgently by his superior, as there was murder of ASI at Kudwada police
out post. Therefore, it appears that, entry was not made in the station
diary about his patrolling duty.
133] Witness Shantilal Wasava further admits that, he had made
noting about incident occurred on 25/8/05 in his diary. The said diary
was required to be deposited in the police station. He admits that, he
does not recall whether he had deposited his diary in police station.
In 2006, he was posted at GIDC police station, Wapi, hence he cannot
say whether said diary was traceable or not. He also admits that,
he does not recall the names of PI Crime Branch who visited GIDC
police station Wapi. The said admissions are not crucial, therefore,
those are required to be ignored.
134] Witness Shantilal Wasava also admits that, he did not tell
before police that the persons in room No. 104 told him that they were
businessmen from Ahmedabad The said omission is not material. But,
the fact remains on record that, due to inquiry made with the
customers, witness was satisfied that they were not connected with the
alleged dacoity committed at village Udwada. Therefore, he did not
made much inquiry with the inmates of the room.
135] Shantilal Wasava (PW 21) also admits that, he does not
remember whether he had told police that after checking the rooms on
second occasion, he told PSI Kalaswa that Sumo parked in front of
hotel belongs to the customers. The said omission is also not so
material, because witness had been to the hotel for making inquiry
about the inmates of hotel. Therefore, he must have made some
inquiry with them in order to satisfy that they were not connected
with the dacoity and accordingly, he formed his opinion on the basis of
information given by them that they were not concerned with the
offence of dacoity.
136] It was suggested to him that at GIDC police station Wapi
police had shown him several photographs, but he denied the said
suggestion. But he volunteers that police had shown him photograph of
one boy aged about 20-21 years whom he had seen at Bhagyodaya
hotel. He described said boy as of fair complexion. He further deposes
that, on 6/10/05, he had been to Pune along with officers of Crime
Branch and stayed in some hotel for one day. He had been to
Yerawada Jail with police. On the basis of said evidence learned
advocate Shri. Koshe submits that, witness was taken by police to jail
for Test Identification Parade, therefore, the Test Identification Parade is
under cloud. But, I am not inclined to accept the said submission
because, witness was resident of Gujrat , he had no idea about the
location of Yerawada Jail, therefore, he must have been taken to
Yerawada Jail by police. Similarly, Test Identification Parade was made
in the Yerawada Jail. Witness was allowed to enter in the jail with the
help of police, but the officials of investigation team, were not allowed
to enter in Yerawada Jail. Therefore, merely because witness was taken
to Yerawada Jail by police for Test Identification Parade, his evidence
regarding identification of accused does not affect any way.
137] It was also suggested to the witness that police gave him
information in respect of persons to be identified in Test Identification
Parade and showed him their photographs. Said suggestion is strongly
refuted. The evidence of witness is denied by defence, but on going
through the evidence of witness Shantilal Wasava, it appears that, he
was asked to join patrolling duty on 25/8/05 as there was incident of
dacoity wherein ASI was murdered. He was chance witness of
prosecution. It appears that, he had been to hotel Bhagyodaya where
he had seen accused along with abducted boy as of fair complexion
aged 20-21 years and he had given his description and description of
two persons as one having gold quoted tooth and other person having
French cut beard. Therefore, it can be said that this witness has
supported the story of Approver on the point of visit of police at
Bhagyodaya hotel and making inquiry by them with accused persons.
138] Approver further deposes that, they left hotel Bhagyodaya at
3-4 pm and reached Wapi. Accused Nitin Modha asked him to take
vehicle to Nasik. On the way vehicle was stopped. Accused Prasad
Shetty (A 2) and Chhotu Ghisaiwala (A 10) went to hotel, but he
stayed along with Sagar in Sumo. Accused Nos. 2, 10 and 11 had
snacks in the hotel and they sent cold drink for him and Sagar in the
vehicle. On inquiry by Sagar, he told him that they would reach Pune in
5 hours. He did not take food in the said hotel. Thereafter they reached
Gujrat border. He was driving vehicle at that time, Nitin Modha directed
him to turn the vehicle as there was risk on the check-post of the said
raod. Nitin Modha told him that they should go to Pune via Express
highway. This part of evidence is simply denied. But, in the cross-
examination, it was suggested to him that after leaving hotel
Bhagyodaya, he and other accused persons proceeded further on
highway and said suggestion was refuted by witness. Similarly, witness
admits that after proceeding towards Nasik road, they had stopped at
hotel near Kaprala on Nasik road. The evidence of Approver on that
count is substantiated by the suggestions by defence.
139] Approver further deposes that, they passed the hotel where
they had already stopped. He had noticed that vehicle was passing
through dense forest. He was driving said vehicle. Nitin Modha was
sitting besides him on front seat and he noticed that Prasad Shetty (A
2) was sitting in the middle seat, shifted to rear seat of vehicle. Nitin
Modha then took out knife from below the seat and handed over to
Prasad Shetty (A 2) . He asked Nitin Modha as to why he took out knife.
Nitin Modha told him that in case police comes, Prasad Shetty (A 2)
can throw the knife out of the vehicle. He further deposes that, Prasad
Shetty (A 2) kept the knife on the throat of Sagar and at that time,
Sagar told that Nitin please do not kill me. If the amount paid by his
father is less, he can arrange for more amount. The said part of
evidence is simply denied. Witness further deposes that, he then
stopped the vehicle. The lights inside the vehicle was on. He turned
behind and saw that Prasad Shetty (A 2) cutting the throat of Sagar.
Witness admits that he did not tell before CJM that light inside the
vehicle was on and he turned his head behind and saw Prasad Shetty
(A 2) cutting the throat of Sagar. In fact omission is in respect of he
'turning' his head behind. The witness has categorically stated that, he
saw Prasad Shetty (A 2) cutting throat of Sagar in the jeep. Witness
further deposes that, Chhotu Ghisaiwala (A 10) had caught hands and
legs of Sagar and Nitin Modha was sitting besides him on front side,
turned around to hold Sagar. The Approver has specifically stated
that there was pool of blood in the car which reached to his leg. On
this point, opinion of Dr. Harjit (PW 43) is crucial. He has categorically
deposed that, there was profuse loss of blood, due to which
deceased suffered hemorrhagic shock. The evidence of Doctor has
substantiated the evidence of Approver on the point that there was
profuse bleeding from the wound of Sagar and there was pool of blood
in the car and blood reached to his leg. It shows that there was much
loss of blood from the body of deceased Sagar, which was one of the
causes of death.
140] Approver further deposes that, Nitin Modha then directed
him to take vehicle ahead. After some distance, Nitin Modha directed
him to take vehicle by the side of road. Nitin Modha then got down
from the left side of the front seat, he opened rear door of the vehicle.
At that time, Chhotu Ghisaiwala (A 10) gave head portion of Sagar in
the hands of Nitin Modha, Prasad Shetty had held legs of Sagar. Nitin
Modha and Prasad Shetty then threw dead body of Sagar in the forest.
He further deposes that, accused No. 10 was standing near the
vehicle and he was holding bloodstained clothes in his hand. He was
cleaning the same. After throwing dead body in the forest, Nitin Modha
and Prasad Shetty (A 2) returned to vehicle. Nitin Modha then sat
besides him on front seat. Prasad Shetty (A 2) and Chhotu Ghisaiwala
(A 10) sat in the middle seat. Then Nitin Modha asked him to drive
vehicle. The clothes of Nitin Modha were stained with blood. He took
out clothes on his person near the place called Kaprala and also threw
clothes of Sagar from the vehicle. In the cross-examination he admits
that he did not state before CJM that Chhotu Ghisaiwala (A 10) was
standing near vehicle and he was holding bloodstained clothes in his
hand. He was cleaning the same. He also admits that, he did not
state before CJM that Nitin Modha then directed him to take vehicle
towards Baroda. In fact, witness stated that Nitin Modha told him to
take vehicle ahead. The said evidence is simply denied by the defence.
Witness further deposes that, Chhotu Ghisaiwala (A 10) asked Nitin
Modha whether he had taken gold chain and gold bracelet from the
person of Sagar. At that time, Nitin Modha showed him chain and
bracelet of Sagar. Nitin Modha asked Prasad Shetty (A 2) whether he
had finished Sagar. Over it Prasad Shetty (A 2) told that his attempt
to kill is never futile. =|=| =| =|i =||=i ==i |=|. He further
deposes that, he took vehicle towards Baroda. Nitin Modha threatened
him that in case he discloses the incident to anybody, he would make
the same fate like Sagar. He further deposes that, they came to Surat,
he was directed to stop the vehicle near petrol pump. Prasad Shetty (A
2) and Chhotu Ghisaiwala (A 10) washed vehicle with hose-pipe. They
threw matting of the vehicle and also shoes of Sagar. Thereafter diesel
was filled in the vehicle and they proceeded further.

141] Witness further deposes that, at about 3 am, they reached
some hotel on highway near Karzan. All had food in the said hotel. He
had only taken water Thereafter Prasad Shetty (A 2) sat on driving
wheel and stopped vehicle at garage at Balsad. On next day at 7
am, they left for Baroda. Nitin Modha directed him to take Sumo to
some hotel. Nitin Modha also told that they wanted to go to collect
the money sent by Bhai from Dubai. They accordingly proceeded along
with accused No.10. He further deposes that, Prasad Shetty (A 2)
took vehicle to Siddharth Hotel where he took room on rent. In the
room, he washed his bloodstained clothes. At about 12 noon, Nitin
Modha also came there.
142] In the cross-examination, he admits that, he did not tell
before CJM that on next day at 7 am, they left Baroda. Nitin Modha
directed him and Prasad Shetty (A 2) to take Sumo to some hotel. He
also admits that, he did not tell before CJM that Prasad Shetty (A 2)
took vehicle to Siddharth hotel where he took room. Though the said
facts are brought on record as omissions, but the prosecution has led
evidence of Ashish Pande (PW 10) who was manager of hotel
Siddharth, specifically deposed that in the year 2005, he was working
as manager at Siddharth hotel. There were 4 managers. Two of them
were working in day shift and remaining two in night shift. At the
relevant time he was working in night shift. There were 24 rooms in
the hotel. He deposes that, they maintained register of customers in
which entries are to be made by customers. The entries such as
ingress and egress, room number and amount of advance were made
by hotel staff. They also used to record number of vehicle of the
customers. He further deposes that, on 15/9/05, PI Rajendra Joshi
(PW 54) had been to their hotel and inquired in respect of stay of
accused in the hotel. He had shown the customer register to him.
He had brought original register along with him. He was shown entry
dated 26/8/05. The entry No. 257 was in the name of Pradeep Pille and
Narayan Joshi. The date of arrival was mentioned as 26/8/05 and time
was 8.30 am. He further deposes that, at the relevant time he was on
duty. In the register he made entry in respect of advance of Rs. 400/-,
room No. 203 and vehicle No. GJ-14/E-4992. He further deposes that,
customers left hotel at about 10.45 am on 26/8/05. PI Rajendra Joshi
(PW 54) took original of registers page Nos. 32,33 and inserted
photocopies thereof in original. He had also taken photocopies of
entire register with him. Witness has identified entry No. 272 which
was in the name of Pradip Pille and Narayan Joshi.
143] In the cross-examination, he admits that Hotel Siddharth is
owned by Shyam Agarwal. He did not hand over copy of appointment
letter to police. He also admits that, original register remains in the
custody of hotel. He does not recall the exact number of staff working
in hotel in 2005. He also cannot say as to who was manager in day
shift at the relevant time. The above evidence is on the point of
management of hotel. The witness was serving in hotel is not denied.
He gave evidence in the month of September 2011 and the alleged
incident has taken place in 2005. Therefore, it was difficult for him to
recall the names of other members who were present at the relevant
time. Therefore, the said admissions are not significant.
144] He also admits that, the entry in respect of number of
vehicle is recorded in pencil. At entry No. 257 there are entries in
pencil at name, address and signature column. These are not in his
handwriting. On the basis of same, learned advocate Shri. Koshe has
vehemently submitted that, there is manipulation in entry No. 257.
Some extraneous material was added in the said entry by pencil. The
witness has not admitted the writing is of himself. It appears that,
vehicle number is in pencil. There is marking as F-157 (4A) (4) (5) in
pencil. It appears that, the said marking was done by investigating
officer for referring the entry to Handwriting Expert. Except vehicle
number, other contents of entry No. 257, are in ink. Therefore, it cannot
be said that entry No. 257 is false, bogus and manipulated.

145] Witness further admits that, entry No. 257 was prepared by
manager who was on duty at the relevant time. He is still there. He
had given copy of bill to police. He does not remember whether
copy of licence was given to police. Police did not give any
acknowledgement to him. The said evidence is also not material
because prosecution had produced on record the original entry of
customer made at serial No. 257, which shows that it was in the name
of Pradip Pille and Narayan Joshi. Witness has admitted that there was
no attestation by police at Exh. 257. Entry in that respect is at last
page of the register. Police did not seize any register. The said
admission is also not material because concerned page of the register
was seized in presence of Sunil Rajput (PW 11), who has categorically
stated that, on 16/9/05 he was called at Siddharth hotel along with his
co-employee Philips Fernandes. He was requested to witness
panchanama. Some veiled persons were with police. A veiled person
was taken to reception counter, his veil was removed. He was shown
register. He identified his signature in respect of entry in the register .
Police removed the relevant pages in respect of the said entry and
replaced photocopies thereof. The said pages were seized in presence
of panch witnesses. Witness has identified the said pages (Exh.272).
He further deposes that, It bears his signature at serial No. 2 on page
33. police conducted panchanama in his presence (Exh. 274). His
evidence is denied. He admits that police requested him to sign
panchanama, accordingly, he signed it. But the said admission does not
mean that he simply signed the panchanama to oblige police. He
admits that he does not know what was written by police in Marathi. He
admits that, it did not happen that, police prepared a set after taking
the original papers from the register, seized it and sealed the same.
He also admits that, police did not keep the original papers taken from
the original register and kept it in the envelope and sealed the same.
But witness Pande has identified the page of register (Exh. 272.
therefore, the admission given by panch Rajput has no legal
significance. His evidence is on the point that police came to hotel
Siddharth and seized page of register in his presence which was
shown by accused. Therefore, on going through the evidence of Ashish
Pande coupled with the evidence of Sunil Rajput, it is established that
on 26/8/05, room No. 203 was occupied by Pradeep Pille and Narayan
Joshi, who arrived in the hotel at about 8.30 am and they left hotel at
10.45 am, which substantiates the evidence of Approver on the point
of stay of accused in hotel Siddharth in the morning of 26/8/05.
146] Witness further deposes that, Nitin Modha told him to
collect money sent by Bhai from Dubai. Accordingly he proceeded
along with accused No.10. Witness admits that he did not tell before
CJM that accused Nitin Modha proceeded with accused No. 10 for
collecting money. The omission is in respect of word 'Chhotu
Ghisaiwala'. It means, Approver had stated before police that Nitin
Modha left hotel to collect money. Therefore, the said omission is not
significant. Approver further deposes that, at about 12 noon, Nitin
Modha and accused No.10 came in the hotel. Nitin Modha threw three
bundles of currency notes containing Rs. 50,000/- each on the bed. He
told them that Rs. 50,000/- each were for him, Prasad Shetty (A 2)
and Chhotu Ghisaiwala (A 10) respectively. Accordingly, Prasad Shetty
(A 2) , Chhotu Ghisaiwala (A 10) and he received Rs. 50,000/- each.
Then they left the hotel. He further deposes that, Nitin Modha asked
him to take Sumo which he refused. He told him that he wanted to go
to Surat. Prasad Shetty (A 2) and accused No. 10 told him that they
wanted to stay in Baroda. Thereafter he and Nitin Modha walked
towards bus stand at that time Nitin Modha told him that he wanted to
go to Porbandar. Nitin Modha also told him that since Bhai from Dubai
had sent less amount, he needed Rs. 30,000/-. Accordingly, he gave
him Rs. 30,000/- out of Rs. 50,000/-. He admits that he did not state
before CJM that, Nitin Modha told that Bhai had sent less amount,
hence he needed Rs. 30,000/-, hence, out of Rs. 50,000/- he paid Rs.
30,000/- to him. The said omissions are material. But witness has
categorically stated that, he paid Rs. 30,000/- to Nitin Modha as per his
demand. Therefore, it can be said that, there was distribution of
money. Thus, the said transaction is very crucial. So, it is important to
know whether Nitin Modha had really received the amount which he
alleged to have been distributed amongst himself, Approver, Prasad
Shetty (A 2) and Chhotu Ghisaiwala (A 10).
147] To prove the receipt of amount to Nitin Modha, prosecution
has heavily relied on the evidence of Vishnubhai Patel (PW 30).
According to him, he is working as manager with Vishnubhai Kantibhai
Angdia at Sultanpura, Baroda. His firm is having about 40 branches
throughout Gujrat, Mumbai and Delhi. The Firm deals with transfer of
money, sending couriers, parcels etc. Whenever customer wants to
transfer money, his money is deposited at one of their branch offices
and then dispatched to desired destination as per requirement of
customers. At the time of handing over amount, they ask for the
name and identity proof of the person in whose favour the amount is
transferred and then hand over the cash to him. In cross-examination
witness admits that, since 1999 he is working with said Firm. He
possess identity card issued by the Firm. He also admits that, in his
identity proof, his designation is wrongly mentioned as Delivery man.
However, he does not possess any document to show that he worked
as Manager. On the basis of said admissions, learned advocate Shri.
Koshe, has vehemently submitted that, witness is got up witness. He is
not concerned with the courier services. But, I am not inclined to
accept the said submission because, he has produced on record
receipt. (Exh. 347). Similarly, he gave detail description of business
carried out by his Firm and the said aspect is not denied. Therefore,
merely because there is mention of Delivery man, in the identity card,
the evidence of witness cannot be brushed aside.
148] Witness Vishnubhai Patel further deposes that, police had
been to him on 17/2/06 and inquired about Nitin Modha. He was also
asked whether any amount was received by his Firm in the name of
Nitin Modha. Police checked the register. An amount of Rs. 2,75,000/-
was received in the name of Nitin Modha on 26/8/05, to his office. The
amount was deposited at their branch at Mumbai. Their staff who
brought the consignment with him had also brought memo in respect
of the transaction. The amount of Rs. 2,75,000/- was dispatched by
Pruthvi Enterprises in the name of Nitin Modha. Said memo includes
the amount of Rs. 550/- as commission. He handed over the receipt to
police (Exh. 347). He further deposes that, person by name Nitin S.
Modha came to their branch office at Baroda, showed memo of UAE
Exchange and Financial Services Ltd, and his identity proof. They
obtained the photocopies of the same from him and on verifying his
identity, they paid him Rs. 2,75,000/-. Witness has identified the
proof of UAE Exchange and Financial Services Ltd. In the cross-
examination, he admits that, entry of delivery memo is made in the
register. He did not hand over the register to police. He also admits
that, he does not possess licence for money transfer. He does not
know anything about the firm Puthvi Enterprises. The signature of the
receiver of the consignment is only obtained on receipt and not in any
register. He cannot tell the number of customers visiting their office
in a day, month and number of consignments. He also cannot give the
details of the various consignments received on 25/8/05 and 26/8/05.
he cannot tell the details of the persons who had visited on these two
dates. On the basis of said evidence, learned advocate Shri. Koshe has
vehemently submitted that, the amount was received by Firm of
witness on 26/8/05 but no entry of the same was made in the register.
but witness has categorically stated that, it is not their procedure to
make entry in the register. similarly, he had not handed over any
register to police. He simply produced receipt Exh. 247 which shows
that the amount of Rs. 2,75,000/- was sent by Pruthvi Enterprises in the
name of N.S. Modha and said Nitin Modha had collected said amount
on 26/8/05 on production of his identity card and memo of UAE
Exchange and Financial Services Ltd.
149] The said document (Exh.516) was obtained by investigating
officer Rajendra Joshi (PW 54) during investigation. Rajendra Joshi
(PW 54) categorically stated that, he had issued letter to UAE
Exchange and Financial Services Ltd. and sought information
regarding the amounts received by him and sent by them to N.S.
Modha. Accordingly, UAE Exchange and Financial Services Ltd., issued
letter in the name of investigating officer (Exh. 516) and handed over
two receipts and its duplicate copies. (Exhs. 516/A,B,C,D) and copy of
identity card of Nitin Modha. Similarly, UAE Exchange and Financial
Services Ltd., has also given details of money transfer made by them
in the name of Prasad Shetty (A 2) on behalf of Pappu @ Syed Khalid
Hussain, Dubai, along with said letter, UAE Exchange and Financial
Services Ltd., also gave the duplicate copy of receipt and copy of
identity card of Prasad Shetty (A 2) and receipt issued by Prasad
Shetty (A 2) in favour of UAE Exchange and Financial Services Ltd.,
(Exh. 517,A,B,C and D). These documents are not denied by defence.
Similarly, prosecution has obtained said documents from UAE Exchange
and Financial Services Ltd. The said documents supports the version of
Approver that Nitin Modha had received amount of Rs. 2,75,000/- from
UAE Exchange and Financial Services Ltd., through Vishnubhai
Kantibhai Angdia Firm at Baroda. The Approver has also deposes that
after receiving the amount, Nitin Modha paid Rs. 50,000/- each to him,
Prasad Shetty (A 2) and Chhotu Ghisaiwala (A 10) in hotel Siddharth.
The said fact is also substantiated from the documents obtained in
this case at Exhs. 516. Therefore, the evidence of Vishnubhai Patel has
supported the evidence of Approver that Nitin Modha had received
amount of Rs. 2,75,000/- on 26/8/05.
150] Approver further deposes that, Nitin Modha also directed
him to pay Rs. 12,500/- to goldsmith and take back the gold ornaments
and also stated him to pay Rs. 1,000/- to Paras and told him that he
would settle his account when he would come along with Bhikubhai
Thanki (A 5) . Then her went to the house of his brother at Surat and
stayed there for 1-2 days. He celebrated the Janmashtami festival at
residence of his brother. Then he paid Rs. 12,500/- to goldsmith and got
back the gold ornaments of Nitin Modha. He also paid Rs. 1,000/- to
Paras. On this point, evidence of Jayesh Jogani (PW 14) is crucial, who
deposes that on 29/8/05 and in the month of September 2005, police
along with Approver had been to his shop. Narayanbhai along with
Nitinbhai had been to his shop for purpose of getting loan on gold.
Accordingly he paid Rs. 12,500/- to Narayan. The receipt was prepared
in the name of Nitinbhai. Name of Narayan was also mentioned in the
receipt. He deposes that, about 15-18 days thereafter Narayanbhai
had been to his shop. He repaid amount of Rs.12,500/- along with
interest, therefore, he returned him two gold chains. He produced on
record copy of receipt of pledging (Exh. 282) and original receipt of
loan amount (Exh. 283). He admits that, at the relevant time the police
officers did not inspect the record maintained by him. He also admits
that he had maintained register containing the entries of borrower, the
amount advanced towards loan, the weight of the metal, date etc.
There is no column of signature of borrower. He also admits that, at
the time of returning metal, the entry is taken in register. The
signature of borrower is obtained on the receipt. The receipt (Exh.
283) does not bear signature of borrower because original receipt is
given to him regarding receipt of gold articles. The original register is
not seized by police but the receipt aptly proved that there was
transaction of pledging of gold ornaments with witness Jayesh Jogani
by accused Nitin Modha and Approver. Thereafter Approver paid
amount of Rs. 12,500/- to him. Approver deposes that he paid Rs.
12,500/-, but in fact he paid Rs. 12,643/- which includes interest of Rs.
143/- which was not deposed by Approver, but the documents
produced on record shows that amount of loan was repaid along with
interest. Therefore, the evidence of Approver is cogent and cognate on
the point of pledging of gold ornaments as well as its release from
Jayesh Jogani. Therefore, the said evidence of Jayesh Jogani
substantiates the evidence of Approver on the point that accused Nitin
Modha told him to redeem the loan of Jayesh Jogani and take back gold
ornaments and accordingly, Approver had done it.
151] Approver further deposes that, accused Nitin Modha called
him on mobile and directed him to visit Hirabag along with gold
ornaments. Accordingly Approver reached there met Nitin Modha and
handed over gold ornaments to him. Nitin Modha was accompanied
with Bhikubhai Thanki (A 5) and a well built person, whom he does
not know. At that time, Nitin Modha asked him in respect of balance
amount with him. He had Rs. 6,000/- with him. Nitin Modha directed
Approver to give him Rs. 6,000/- by promising to settle his account as
and when he gets amount from Bhai at Dubai. Witness admits that he
did not state before CJM that Rs. 6,000/- remained with him and
accused Nitin Modha demanded said amount on promising him to settle
his account as and when he receive the amount from Bhai at Dubai.
The said fact is omission, which is material. Therefore, it is required to
be ignored.
152] Approver further deposes that, Nitin Modha called Paras on
mobile and directed him to bring two bottles of liquor at Hirabaug.
Accordingly, paras came there along with two bottles of liquor. They all
then consumed liquor in the car of Paras. Then they took food at hotel.
Thereafter Nitin Modha told him to come with him in hotel. However,
he refused by saying that he would stay in the house of his brother,
because he was afraid of unknown body-builder accompanied Nitin
Modha and had a fear in his mind that he might be murdered by
them. The said fact is brought on record as an omission. But
prosecution has examined Rameshbhai Patel (PW 12) to prove that,
accused Nitin Modha and Bhikubhai Thanki (A 5) stayed at hotel Pooja
at Baroda. According to Rameshbhai in his presence police seized the
customer register of Hotel Pooja. According to him, he was called by
police in the said hotel. Two accused were along with the police. One
Solanki was present at the reception counter of the hotel. He handed
over register of customer to police. In the said register, there was
entry in the name of Nitin Modha and Bhikubhai Thanki (A 5) at serial
No. 161. The original pages of said register were seized by police.
Witness has identified relevant pages at Exh. 278. In the cross-
examination, witness admits that, no police from Gujrat were present.
One Arvindbhai Thorat introduced him as a police officer from
Maharashtra. He admits that, police did not obtain sample of
handwriting of Solanki. It is suggested to him that only one person in
veil was brought in the hotel and he was shown only one accused
person who was in veil. He admits that, in panchanama it is mentioned
that two veiled persons were brought to hotel. Therefore, it is
established that, police had brought two accused persons, who had
shown the hotel and thereafter extracts of customer register were
seized. On going through the entry No. 161, it appears that, it is in the
name of Nitin Modha and Bhikubhai Thanki (A 5). It also appears that
they entered in to the hotel on 30/8/2005 at about 8.30 am, and
checked out the said hotel at about 6.30 pm, on the same day. The
Approver has not given the name of hotel where Nitin Modha and
Bhikubhai Thanki (A 5) had stayed, but, said part was proved by
Rameshbhai Patel by proving the customer extract of hotel Pooja.

153] Witness further deposes that, on next day morning he tried
to call Nitin Modha and Bhikubhai Thanki (A 5) on their mobiles
continuously for about 20-25 minutes. However, they did not attend
his call. He then contacted Paras on his mobile. He told him that Nitin
Modha and Bhikubhai Thanki (A 5) left in the night itself by hiring a
taxi from Railway station and Nitin Modha was proceeding to Dubai by
night flight. The said evidence is brought on record as an omission, as
it was not stated by him before CJM. He further deposes that, on the
next day, he started receiving calls on his mobile from Prasad Shetty
(A 2). He was threatening him that in case he discloses the incident to
anybody or police, he would finish him and his family members. He
remained silent and did not tell anybody. Then he removed SIM card
from his mobile to avoid threatening calls. Then he went to Bhot via
Surat. On 5/9/05, he came to Surat. While he was at the house of his
brother, Bhikubhai Thanki (A 5) called him on the mobile of his brother.
His brother handed over him call, Bhikubhai Thanki (A 5) directed him
to come to Hirabaug as he and his friends wanted to go on tour. When
he came to Hirabaug, police arrested him. He further deposes that,
occurrence of incident and his part therein, filled him with the guilt and
in order to repent with the same he had decided to speak the truth
before Court. Hence he applied for tender of pardon.
154] The evidence of Approver is criticized by defence on several
grounds. The first and foremost ground is that there was inordinate
delay to become Approver. It is vehemently submitted that, by learned
advocate Shri. Koshe that Approver was apprehended in the year 2005
and he was granted tender of pardon in the year 2010. No satisfactory
explanation is given by prosecution for the same. It is true that,
Approver was apprehended by Gujrat police on 5/9/05. Thereafter he
was formally arrested by Crime Branch, Pune on 8/9/05. It is also
admitted fact that he was granted tender of pardon in 2010. On
going through the evidence of Approver, it appears that, he had
submitted application (Exh.92) to become Approver in the year 2008.
The said application does not bear the date, but it has an endorsement
of jail authorities, which shows that it was forwarded to Court on
24/1/2008. So, it can be said that Approver submitted his first
application prior to 24/1/08. It was considered by this Court and he
was referred to CJM, but on one pretext or the other, his statement
was not recorded by CJM. Similarly, this Court has also not taken
cognizance of the same. Thereafter on 25/10/10, Approver submitted
second application (Exh. 161). On the basis of same, he was
examined by this Court and thereafter he was referred to CJM for
recording his statement and then he was granted tender of pardon by
this Court u/s 307 of Cr.P.C. . If the provision of Section 307 is perused,
it can be said that, the trial court can grant tender of pardon to any
accused before pronouncement of judgment. Therefore, there is no
necessity to give any explanation for delay. In fact, delay does not
affect the testimony of Approver. On this point, the prosecution has
relied on the ratio laid down in the case of Narayan Chetanram
Chaudhary Vs. State of Maharashtra reported in 2000 SAR
(Criminal) 844, wherein it was held that :
No time limit is provided for recording the statement of
Approver : Delay by itself is no ground to reject the testimony of
the accomplice. Delay may be one of the circumstances to be
kept in mind as a measure of caution for appreciating the
evidence of the accomplice. Human mind cannot be expected to
be reacting in a similar manner under different situations. Any
person accused of an offence, may, at any time before the
judgment is pronounced, repent for his action and volunteer to
disclose the truth in the Court. Repentance is a condition of mind
differing from person to person and from situation to situation..
In the present case, Approver had submitted first application (Exh.92)
in the year 2008, but it did not yield any fruit. Therefore, he submitted
second application which was processed by this Court and acted upon
and he was granted tender of pardon. I must mention here that
confessional statement of Approver is also recorded by Competent
Authority under MCOCA at the early stage of investigation. So, it can
be said that Approver was eager to confess his guilt and in the
process, he opted to become witness for the prosecution and his
prayer was accepted by this Court. On going through the evidence of
Approver, it appears that, he was present in all three trips , which were
made by co-accused at Pune. He was working as driver for accused
No. 11, therefore, he had first hand information regarding the alleged
offence. In his application Exh.92 as well as Exh. 161, he has shown
his repentance for the alleged brutal act committed by him and co-
accused. So, delay in tendering pardon is no ground to discard the
evidence of Approver.
155] Learned advocate Shri. Koshe invited my attention to the
statement of Approver before CJM, wherein the Approver stated that
he has not committed any offence. In fact, in his ocular evidence he
has categorically stated that, occurrence of incident and his part in it
filled him with guilt and in order to repent with same, he decided to tell
truth before the court. My learned predecessor has recorded the
demeanor of witness. He has tears in his eyes while deposing in the
Court. Therefore, it cannot be said that Approver had nothing to do
with the alleged offence and he deposed falsely.
156] The evidence of Approver was also challenged on the
ground that he has not personally submitted application for becoming
Approver. It is true that, both the applications Exhs. 92 and 161 are in
Hindi and in the handwriting of somebody else than Approver. He
also admits that, he submitted the said applications to Court, but in
fact, said applications were submitted to jail authority and in turn, jail
authority has forwarded the said applications to this Court. On both the
occasions, this Court has taken cognizance of the same, but first
application was not persuaded in logical end. But the said error was
corrected while processing the second application Exh. 161. Therefore,
it cannot be said that somebody else made applications on behalf of
Approver without his consent or his volition.
157] Learned advocate Shri. Koshe submits that, Approver was
induced to become Approver as he was in financial crises. It is
admitted by Approver in his cross-examination that his financial
condition was poor. He was driver by occupation. He is having 4
brothers, one of them is Bhimabai, who was to be operated. There was
no earning member in his family. He sent several letters to his brother.
His brother used to send money to him through Money-order. His
brother Ramesh had met him thrice in the hospital. Bhima had some
ailment of leg. He also admits that his financial condition was poor. On
the basis of said admissions, learned advocate Shri. Koshe submits
that, due to inducement of financial gain, Approver was made witness
for the prosecution. But, said argument has no base, because there
are many accused persons who are poor. The Approver was driver by
occupation. There was no other person in his family to support his
family. That does not mean that police had helped him financially. No
doubt, the defence had examined Balu Tupe (D.W. 4), who was in jail
along with Approver. He deposes that, he had friendly relations with
Jameria. Approver used to disclose his worries and problems to him.
The financial condition of Approver was poor. Approver used to quarrel
with with co-accused Jagmalsing Choudhary ( A 3) , Chhotu Choudhari
(A 4) and others. They used to quarrel in Gujrathi language. Then he
used to inquire him about the quarrel. Jameria used to demand money
from Jagmalsing Choudhary ( A 3) , Chhotu Choudhari (A 4) and others
and used to threaten them that if they failed to pay amount, he would
become witness for prosecution.
158] Witness further deposes that, Approver used to tell him
that police officers from Crime Branch, Pune, used to meet him and
insist him to become witness for prosecution. Crime Branch told him
that they paid Rs. 3 lacs to his family members to become witness for
prosecution. Approver had no silent sleep, he was sleepless for long
period. The said evidence is denied by the prosecution. In the cross-
examination witness Balu admits that, he is facing 8 crimes. All are
serious in nature. He was arrested by various police stations. He also
admits that he had no personal knowledge regarding financial condition
of Approver. Witness was in jail from 2005 to 2008 and thereafter
again he was arrested and lodged in jail from 24/1/2012. So, the
witness was on bail from 2008 till 2012, but he did not disclose
alleged pressure brought on Approver by the Crime Branch to anybody.
The evidence of Balu is general in nature. Specific suggestions were
put to Approver that he was allured by prosecution by giving him
financial aid, for becoming witness of prosecution, but said
suggestion was refuted by Approver. There is no material on record to
establish that Approver was given monetary aid by Crime Branch, to
become Approver. In fact, since 2008 Approver was making effort
to become witness for the prosecution, he had also given confessional
statement before investigating officer. Therefore, it cannot be said that
there was pressure, influence or inducement on Approver to become
witness for prosecution. Therefore, the evidence of Balu is not worth
reliable.
159] The evidence of Approver is challenged on the ground that
Crime Branch officers used to meet him in the jail and used to take
him out of jail to force him to become Approver. To substantiate that,
defence has relied on the evidence of Rajendra Dhamne (DW3), who
was superintendent in Yerawada Jail from March 2005 to June 2009.
He has produced on record movements of Approver ( D-1 : 1 to 17
pages ), similarly, jail warrants ( D-2/1 to 4). Witness has given
procedure of detention of accused in the jail. He deposes that, if
notice is received for service on detainee, they hand over it to senior
officer of Judicial section who calls the detainee in judicial section and
serve them and their judicial section keeps record regarding receipt
of notice, name of detainee, date of service and who served it etc. He
further deposes that, during the course of regular round by
Superintendent in Circle, detainee may submit application to be
forwarded to either Court or police station. He further deposes that,
for the security of prisoner, he can be kept in (Unda) speical cell.
Some time security of prisoner or security of other prisoners, prisoner
can abe kept in secluded ( special ) cell. He admits that, Approver
was kept in Unda cell. He deposes that, during his post as
Superintendent, there was prisoners by name Narayan Jameria,
Shailesh Jadhav, Mayur Patel and Ravi Pardeshi, but he shown his
ignorance in respect of Balu Tupe was prisoner in the jail during his
tenure.
160] On perusal of jail warrant, it appears that, witness was called
before JMFC, Pimpri, on 29/11/05 and 27/7/06. The jail warrant shows
that from time to time Approver was produced before the court. It was
the case of defence that the Approver was taken to Court besides
regular date of hearing. But except the suggestions, nothing is brought
on record to establish that Approver was taken to Court besides regular
dates of hearing, to suggest that Approver was pressurized by Crime
Branch to become witness for prosecution. Rajendra Dhamne (D.W 3) is
also examined. His evidence is not helpful to defence to establish that
Approver was taken out of jail besides the Court hearing dates,
therefore, the defence of accused that Approver was allured or
induced by Crime Branch to become witness of prosecution, is not
established.
161] The evidence of Approver is also criticized on the ground
that he has not given truthful version of alleged incident. He has
concealed many facts, namely Approver has concealed that he had
made voluntary statement on 13/9/05 and in pursuance of the same,
he produced articles before police. The said event is part of
investigation. The purpose of pardon of is specified in sub section 1
of section 306 namely :
Tender of pardon to accomplice : (1) with a view to obtaining
the evidence of any person supposed to have been directly or
indirectly concerned in or privy to an offence to which this
section applies, the CJM or a Metropolitan magistrate at any stage
of the investigation or, inquiry in to or the trial of the offence,
and the Magistrate of the first class inquiring in to or trying the
offence , at any stage of the inquiry or trial, may tender a pardon
to such person on condition of his making a full and true
disclosure of whole of the circumstances within his knowledge
relative to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof .
In the present case, the Approver has narrated complete story of the
alleged incident. He has also narrated his role as well as role of co-
accused in the alleged crime. Therefore, non-disclosure of the events
occurred, during the investigation will not affect the evidence of
Approver.
162] Learned advocate Shri. Koshe has vehemently submitted
that, the Approver has referred Prasad Shetty (A 2) as Prashant
Shetty, in his statement before CJM. Therefore, there is ambiguity in
his evidence regarding identity of accused No.2. On the other hand,
learned Spl. APP submits that, the Approver has specifically identified
accused No. 2 in the Court as Prashant Shetty. So, there is no
ambiguity regarding the identity of accused No. 2. It appears from the
statement of Approver before CMJ that he referred accused No. 2 as
Prashant Shetty, but in the evidence before the Court, he rightly
referred accused No. 2 as Prasad Shetty. Therefore, there is no
ambiguity in the evidence of Approver regarding identity of Prasad
Shetty (A 2).
163] Learned advocate Shri. Koshe has taken me through the
omissions brought on record through the evidence of Approver. The
said omissions are in paragraph Nos. 45 to 53 in his evidence. On the
basis of omissions, appeared in the evidence of Approver, learned
advocate Shri. Koshe, submits that, Approver has improved the theory
of prosecution, similarly, he has introduced new theory, which is
inconsistent to the story of prosecution, hence, the evidence of
Approver is not worth reliable, and it should be discarded. On the other
hand, learned Spl. APP submits that, submissions brought on record
are not touching to the crucial story of prosecution. Therefore, those
should be simply ignored. However, the said omissions are considered
by me while appreciating the evidence of Approver. Most of the
omissions are in respect of the first two visits of Approver and accused
to Pune. The entire case revolves around the evidence of Approver, he
described his visits to Pune along with accused. It appears that, the
Approver had come to Pune in the month of July-August, 2005 and he
deposed in this Court in the year 2011. He is driver by occupation.
Hence, omissions appeared in his evidence are just natural. The said
omissions do not affect the main story of prosecution. Therefore, his
evidence cannot be brushed aside simply because he proved the
prosecution version. On this point, I would like to rely on the ratio
laid down in the case of State of UP Vs. Krishna master, reported in AIR
2010 S.C. 3071, wherein the Hon'ble Apex Court expressed that, minor
discrepancies which are not touching to the core case, cannot be a
ground for rejecting of evidence in entirety. In the present case also,
there are no material omissions which are touching to the core case of
prosecution. Therefore, the evidence of Approver cannot be overboard
on that count.
164] The evidence of Approver is also criticized by learned
advocate Shri. Koshe that he has not given any date of incident alleged
to have been occurred prior to 13/8/05. It is true that, Approver has
given description of his two trips to Pune, along with co-accused, he
has not given specific dates of the said trips. But the dates of said
trips are confirmed from the evidence of hotel managers, which is
already discussed above. The incident had taken place in the year
2005 and Approver was examined in the year 2011. Since the date of
his arrest, he is in jail. Therefore, it was not expected from lay man to
describe each and every date of the events occurred in his life. The
Approver has narrated the incident occurred during three trips made by
him to Pune. Therefore, the dates of earlier two trips are not
categorically given by him and it was also not expected from him.
Therefore, the said aspect cannot brush aside the ocular evidence of
accomplice which is substantiated by other witnesses.
165] The learned advocate Shri. Koshe submits that, evidence of
Approver cannot be relied on without corroboration. It is true that,
evidence of accomplice must be shown to be reliable.
166] Learned advocate Shri. Koshe, has also relied on the ratio
laid down in the case of Balwant Kaur Vs. Union Territory of
Chandigarh, reported in AIR 1988 S.C. 139, wherein it was held
that :
Approver's evidence in regard to complicity of accused in
conspiracy lacking corroboration on certain material particulars
necessary to connect accused : accused would be entitled to
benefit of doubt.
In the said judgment Hon'ble Apex Court has relied on the ratio laid
down in the case of Rameshwar Kalyan Singh Vs. State of Rajasthan
(AIR 1952 SC 54), wherein it was held that :
An accomplice, by long legal tradition, is a notoriously infamous
witness, one who being particeps criminis, purchases his
immunity by accepting to accuse others. Section 114 thus : (b) of
the Evidence Act, envisages the presumptive uncredit worthiness
of an accomplice. But then, S. 133 provides that a conviction
is not illegal merely because it rests upon an accomplice's
uncorroborated testimony.
In indictments, particularly of serious crimes, the counsel of
caution and the rule of prudence enjoin that it is unsafe to rest a
conviction on the evidence of a guilty partner in a crime without
independent corroboration on the material particulars. Judicial
experience was, thus, elevated to a rule of law. It is a practice It
is said which deserves all the reverence of law.
The nature and extent of the corroboration must
necessarily vary with the nature and circumstances of each case.
Enunciation of any general rule, valid for all occasions is, at once,
unwise and unpractical. The aspect as to the extent and content
of independent corroboration is again an interesting area of study.
One view was that independent evidence tending to verify any
part of the testimony of the accomplice should suffice. The other
view required that the corroborative evidence should not only
show that part of the accomplice testimony is true; but should go
further and implicate the other accused. In R V. Baskerville (1916
(2) KB 658) the Court of Criminal Appeal in England favoured and
adopted the second view.
Thirty-five years ago, Bose J., referring with approval to the
principles in Baskerville said that this branch of the law in India is
the same as in England and that the lucid exposition of it given
by Lord Reading, cannot be bettered.
The felicitous formulation of the law on the matter by that
great master of phrase, Bose J.. which has now become classical,
may be recalled :
......... But to this extent the rules are clear :
First, it is not necessary that there should be independent
confirmation of every material circumstance in the sense that the
independent evidence in the case, apart from the testimony of
the complainant of the accomplice, should in itself be sufficient to
sustain conviction.
Secondly, the the independent evidence must not only
make it safe to believe that the crime was committed but must in
some way reasonably connect or tend to connect the accused
with it by confirming in some material particular the testimony of
the accomplice or complainant that the accused committed the
crime. This does not mean that the corroboration as to identity
must extend to all the circumstances necessary to identify the
accused with the offence.
Thirdly, the corroboration must come from independent
source and thus ordinarily the testimony of one accomplice would
not be sufficient to corroborate that of another...
Fourthly, the corroboration need not be direct evidence that
the accused committed the crime. It is sufficient if it is merely
circumstantial evidence of his connection with the crime....

167] Learned advocate Shri. Koshe has also relied on the ratio
laid down in the case of Sarwan Singh Rattan Singh Vs. State of
Punjab, reported in AIR 1957 S.C. 637(1), wherein the Hon'ble
Apex Court held that:
An Approver is undoubtedly a competent witness under the
Evidence Act. But, the appreciation of his evidence has to satisfy
a double test. His evidence must show that he is a reliable
witness and that is a test which is common to all witnesses. If this
test is satisfied the second test which still remains tobe applied is
that the Approver's evidence must receive sufficient
corroboration. This testis special to the cases of week or tainted
evidence like that of the Approver.
Every person who is a competent witness is not a reliable
witness and the test of reliability has to be satisfied by an
Approver all the more before the question of corroboration of his
evidence is considered by criminal Courts.
It is found that the Approver's acquaint against one of the
accused persons is wholly discrepant, this findings itself should
inevitably lead the Court to scrutinize his evidence in respect of
the other accused persons with greater caution.
Where the statements made by the Approver on
subsequent occasions merely add details which were not
included in the first statement, it may perhaps be a different
matter. It is true that omissions have not always the same
significance as contradictions. But, where it is patent that the two
sets of statements are wholly inconsistent and irreconcilable, that
obviously leads to a very serious infirmity in the character of thew
witness.
168] On the other hand, Spl. APP Shri. Shah, submits that,
section 133 provides that accomplice is a competent witness against
accused persons and conviction is not illegal merely because it
proceeds on uncorroborated testimony of accomplice. To substantiate
his point, he again relied on the ratio laid down in the case of
Narayan Chetanram Chaudhary Vs. State of Maharashtra
reported in 2000 SAR (Criminal) 844, wherein the Hon'ble Apex
Court has taken stock of several judgments of Hon'ble Apex Court as
well as Privy Council and laid down that :
For corroborative evidence the Court must look at the broad
spectrum of the Approver's version and then find out whether
there is other evidence to corroborate and lend assurance to
that version. The nature and extent of such corroboration may
depend upon the facts of different cases. Corroboration need not
be in the form of ocular testimony of witnesses and may be even
in the form of circumstantial evidence. Corroborative evidence
must be independent and not vague or unreliable. Relying upon
its earlier judgment in Suresh Chanddra Bahri's case, this Court
in Niranjan Singh Vs. State of Punjab ( JT 1996 (5) SC 582) held
that once the evidence of the Approver is held to be trustworthy,
it must be shown that the story given by Approver so far as an
accused is concerned, must implicate him in such a manner as
to give rise to a conclusion of guilt beyond reasonable doubt.
Insistence upon corroboration is based on the rule of caution and
not merely a rule of law.
169] In view of the ratio laid down in the case of Sawaransing
Ratansing and Narayan Chetanram Choudhary, cited supra, it is
to be seen whether the evidence of Approver is substantiated on
material particulars by other evidence on record. The Approver has
elaborately narrated his association with co-accused. He also gave
details of his visits to Pune along with co-accused, thrice. In the first
trip, there was no reference of any act towards abduction of Sagar,
but while describing second trip, Approver has disclosed that Nitin
Modha had a plan to abduct Sagar to some other place for ransom. He
gave description of attempt made by Nitin Modha ( A 11) and Jitu
Modha (A 6) to abduct Sagar, but it was failed. In the third trip, he
described the actual incident of abduction of Sagar from Nigdi to
Gujrart. He described places visited by them. There is corroboration
to his version from independent witnesses which is already discussed
above. Though there are some omissions in the evidence of Approver,
but if his evidence is read along with confessional statement, then it
can be said that, he has substantiated the case of prosecution. So, the
story narrated by Approver regarding abduction and murder of Sagar
was substantially corroborated by the independent witnesses.
Therefore, the evidence of Approver is reliable and it can be safely
accepted to prove the involvement of accused in the crime.
170] Besides the evidence of Approver, the prosecution has
also relied on the circumstantial evidence against the accused . The
prosecution has relied on the following circumstances :
1. Criminal conspiracy,
2. Seizure of articles at the instance of Prasad Shetty (A 2).
3. Seizure of articles at the instance of Chhotu Ghisaiwala (A
10),
4. Seizure of Sumo jeep,
5. Receipt of Rs. 2,75,000/- by Nitin Modha ( A 11),
6. Test Identification Parade.
9. Specimen signatures and handwriting,
10. Seizure of mobile phones.
Criminal Conspiracy :
171] The offence of criminal conspiracy can be proved largely
from the inference drawn from illegal acts or illegal omissions
committed by conspirators in pursuance of common design. Presence
of every person involved in conspiracy is not necessary. The
conspiracy is a continuing offence and continues to subsist so long its
performance continues till the plan conspired is executed. A crime is
complete as soon as the agreement is made, the presence of every
accused person involved in conspiracy is not necessary nor his overt-
act at the time of incident. It is held int the case of Shrinarayan
Laxminarayan Joshi Vs. State of Maharashtra, reported in AIR
1980 S.C. 439 that,
A conspiracy is always hatched in secrecy and it is impossible to
adduce direct evidence of the same. The offence can only be
proved largely from the inferences drawn from acts or illegal
omissions committed by conspirators in pursuance of common
design.
In the case of State (NCT of Delhi) Vs. Navjot Shandhu, reported
in 2005 11 SCC, wherein the Hon'ble Apex Court held that :
Conspiracy : elements of offence : various aspects necessary to
constitute the offence, discussed :
1. need for illegal agreement,
2. no need for overt-act,
3. nature of agreement necessary- express or implied,
4. extent of comity/agreement/intention on part of conspirators
necessary,
5. extent of involvement of each conspirator necessary in
respect of various parts/intended offences of conspiracy,
6. extent of temporal involvement of each conspirator
necessary; and
7. period for which conspiracy exists.
172] In the light of above observation of Hon'ble Apex Court, in
respect of criminal conspiracy, I am required to assess the evidence
of present case. It is the case of prosecution that Approver and co-
accused had been to Pune thrice. In the first trip, Samantbhai Boga
Gadhvi @ Kariya ( A 7) and Ajay Gadhvi (A 8) had accompanied
Approver and Nitin Modha (A 11). It is come in the evidence of
Approver that in the month of June-July 2005, he received call on his
mobile from Samantbhai Gadhvi and he told him that Nitin Modha
had come from Dubai and he would approach village Bhot along with
Nitin Modha. Accordingly, Approver went to village Bhot approach road
on highway. Samantbhai Gadhvi, and Nitin Modha came in Ciello car.
Samantbhai Gadhvi (A 7) introduced Nitin Modha to him. Thereafter
Nitin Modha asked Approver to accompany him as his driver for the
tour. It is also come in the evidence of Approver that Nitin Modha
offered him job of driver for a trip to Kanyakumari from Pune and
accordingly, Approver accompanied him. Samantbhai Gadhvi took
his cousin Ajay Gadhvi along with them and they proceeded to Pune.
They stayed in Ashapura Dinning Hall at Chinchwad. Approver,
accused : Ajay Gadhvi, Samantbhai Gadhvi and Nitin Modha met his
brother Jitu Modha (A 6) at Ashapura Dinning Hall, Chinchwad, where
Approver came to know that Bhikubhai Thanki (A 5) had been to
Porbandar, as he had lost his father. It is also come in the evidence of
Approver that Nitin Modha introduced him to his father Shantilal
Modha and brother Jitu Modha (A 6). They stayed in Pune for a couple
of days and then Nitin Modha came to know that his visa was expiring,
therefore, he decided to rush Dubai. Hence, they came back to
Mumbai. It is also come in evidence that, Jitu Modha (A 6) gave him
Rs. 10,000/- for his expenses for Visa and ticket to Dubai. Then they
reached Mumbai. Nitin Modha went to agent and got his Visa and
ticket for Dubai and thereafter Approver came to his village. Similarly,
Samantbhai Gadhvi and Ajay Gadhvi went to Porbandar. From the
above proved facts, it appears that, Samantbhai Gadhvi (A 7) and Ajay
Gadhvi ( A 8) were taken by Nitin Modha as drivers on the car. No
act or overt act is attributed to Samantbhai Gadhvi and Ajay Gadhvi.
Similarly, it is not brought on record that Nitin Modha had informed
Approver and Ajay Gadhvi ( A 8) and Samantbhai Gadhvi (A 7) that
they wanted to recover money or abduct any person from Pune. It
appears from the evidence that, Samantbhai Gadhvi (A 7) had been to
Pune to recover his amount from Bhikubhai Thanki (A 5), but, Bhikubhai
Thanki (A 5) was not available, as he had lost his father. Ajay Gadhvi
( A 8) simply accompanied his brother Samantbhai Gadhvi (A 7) as
spare driver. Therefore, he had also no knowledge about the purpose
of visit of Nitin Modha to Pune. Therefore, there is no material against
accused Samantbhai Gadhvi (A 7) and Ajay Gadhvi ( A 8) that they
had any knowledge of the participation in criminal conspiracy to
abduct Sagar for ransom.
173] It is proved on record from the evidence of Approver that
while parting with Nitin Modha, Approver demanded his money. Over
this, Nitin Modha told him that he would pay him the amount when he
would return from Dubai. It is also come on record that Nitin Modha
disclosed Approver that he had to recover some amount from a party
from Pune. Approver had asked Nitin Modha the name of party, but
Nitin Modha told him that he would tell him the name, when he would
return from Dubai. This part of the evidence is a clue of further
course of action taken by Nitin Modha on second trip as well as in third
trip to Pune.
174] As far as the second trip is concerned, it is proved on
record that the second trip started about 15 days after the first trip. It
is brought on record through the evidence of Approver that Nitin
Modha gave call to Approver and called him at Baroda. Accordingly,
Approver reached Baroda and then to Surat and was waiting for the
call of Nitin Modha. It appears from the evidence of Approver that he
stayed in the house of his brother at Surat. Three days after reaching
Surat, Approver received call of Nitin Modha who told him to visit
Haribaug Circle, Varasa road, Surat. Accordingly, Approver went there
at 12.00 midnight. He saw Indica car bearing No. GJ-07/3315 wherein 4
persons were present. He was asked to get in to car. Accordingly, he
accompanied Nitin Modha to hotel for night stay. Nitin Modha
explained him that he wanted to take another car on rent, as he had
plan to go to Goa from Pune. At that time, Nitin Modha was
accompanied Chhotu Ghisaiwala (A 10), Prasad Shetty (A 2) and
Chhotu Choudhari (A 4). Chhotu Choudhari (A 4) was driver on Indica
car. It is also come in the evidence of Approver that on next day
morning, all of them came to Hirabaug circle and made inquiry with
some agent for car on rent. Approver called Dinesh Tukadia (A 9) who
provided Ciena car of his brother-in-law to Nitin Modha and then at
about 9 pm, Nitin Modha ( 11), Approver, Chhotu Ghisaiwala (A 10)
Prasad Shetty (A 2) Chhotu Choudhari (A 4) and Dinesh Tukadia (A 9)
proceeded to Pune.
175] It is also proved on record that all of them came to Pune.
They went to hotel Kohinoor in Chinchwad. The stay of said 6 accused
persons is proved through the manager of Kohinoor hotel Raju Shetty
( PW 6). It is also come on record that they stayed there for 3 days and
then changed hotel and shifted in White-house. They stayed there for
4 days and said fact is also proved through the evidence of manager
of hotel Samal Mitra (PW 7). It is also proved on record that while
staying at hotel White-house, accused Nitin Modha had received call on
his cell phone from the cell phone starting from 0097. The said call
was attended by Approver. Caller told Approver that he was calling
from Dubai. Accordingly, the said message was conveyed by Approver
to Nitin Modha. Thereafter Nitin Modha decided to vacate the hotel and
proceed towards Mumbai. It is also proved through the evidence of
Approver that while leaving to Mumbai, Nitin Modha asked him to
follow Santro car. Accordingly, Approver followed that Santro car
which passed in speed, he tried to follow the Santro up to Nigdi bridge,
but he lost the track of Santro. Thereafter he came below the Nigdi
bridge, where Indica car was stationary, wherein Chhotu Choudhari (A
4) and Dinesh Tukadia (A 9) were present. Similarly, Jitu Modha (A 6)
also came there. Thereafter both the vehicles i.e. Ciena and Indica cars
proceeded towards Ashapaura Dinning Hall, Chinchwad, where there
was quarrel between Jitu Modha (A 6) and Nitin Modha. From the said
evidence, it appears that, Nitin Modha had received information about
Sagar passing from Nigdi bridge, hence he waited for Santro car. It is
also proved on record that Sagar was having Santro car and he used
to travel by said car. The Approver has categorically stated that, he
chased Santro car for some distance but, he lost track of it and
thereafter there was quarrel between Jitu Modha (A 6) and Nitin
Modha. It is proved on record that when Approver went to Nigdi bridge,
he saw Jitu Modha (A 6) waiting for them. It is also proved on record
that Nitin Modha had talk with somebody on cell phone and thereafter
he decided to leave Pune. On the way, he asked Approver to chase
Santro car. From the said evidence it appears that, Nitin Modha had
definite information about Sagar. Hence, he followed his car, but
Approver could not intercept it. So, the inference can be drawn that
Nitin Modha had information of Sagar from Jitu Modha (A 6), because,
Jitu Modha (A 6) was running hotel Prachi, which is situated nearby
the shop of Sagar. He knew the regular schedule of Sagar. Similarly, he
was present below Nigdi bridge, when Santro was chased by Approver.
Therefore, it is clear that, there was plan of Nitin Modha and Jitu Modha
(A 6) to chase the car of Sagar. It is proved from the cross-
examination on behalf of Accused No. 4 that Accused No. 4 was
introduced to Nitin Modha as a driver by accused No.3. It is also
established from the cross-examination that when Santro was followed,
Jitu Modha (A 6) was not present in the car of Approver. So, it can be
said that in the second trip, Accused No. 4 was taken as a driver. So,
the said suggestion establishes that Santro was followed by Nitin
Modha as per the information given by Jitu Modha (A 6).
176] As far as Dinesh Tukadia (A 9) is concerned, it is suggested
that Dinesh Tukadia (A 9) had no knowledge about the tour to
Mahabaleshwar, Mumbai or Goa. He had no knowledge about roads
of the said places. As per the request of Nitin Modha, Dinesh Tukadia
(A 9) provided vehicle for travel to Mahabaleshwar, Mumbai and Goa.
It appears that, the car of Dinesh Tukadia (A 9) was hired for travel to
Pune. Therefore, he had no idea about the proposed plan of Nitin
Modha to abduct Sagar. Similarly, he was not in the car when Santro
was followed by Approver. But, it appears that, he was waiting for
Approver and Nitin Modha below the bridge for proceeding towards
Mumbai. The above suggestions are accepted by Approver, which
proves the second trip and chase of Santro car by Nitin Modha. It
appears that, Dinesh Tukadia (A 9) had no knowledge about the plan of
Nitin Modha to abduct Sagar.
177] It is also proved on record that after returning from Pune,
Nitin Modha reached Surat, where Nitin Modha pledged his gold
ornaments with goldsmith Jayesh Jogani (PW 14) and received Rs.
12,500/-, out of which he paid Rs. 5,000/- to Dinesh Tukadia (A 9) as a
rent of car. The said transaction is also proved on record through the
evidence of Approver and goldsmith. Thereafter they decided to part
with and to meet again for their trip to Pune.
178] As far as third trip is concerned, which is very crucial. It
appears from the evidence of Approver that, 3 days after reaching
Surat, Approver received telephonic call of Nitin Modha who directed
him to meet at Hirabaug Circle. Accordingly he went there and
informed that he had left Pune and would reach Surat in the
morning. He was called at Hirabaug circle at 11 am. Accordingly,
Approver went there and saw white colour Sumo bearing No. GJ-11/E-
4992. Approver was asked to drive the Sumo. Thereafter Nitin Modha
tried to purchase documents of Sumo, but the said proposal was not
materialized, hence, Nitin Modha decided to change the number-plate
of Sumo. He broke both the number plates of Sumo and asked one
Paras to change the number plates. Accordingly, number plates were
changed at the instance of Nitin Modha and number of Sumo was
changed from GJ-11/E-4992 to GJ-14/E-4992.
179] It is further proved on record that on 13/8/05, Approver,
Nitin Modha Prasad Shetty (A 2), Chhotu Ghisaiwala (A 10), proceeded
to Pune in Sumo. It is also proved on record that Sumo was owned by
Bhikubhai Thanki (A 5). When Sumo reached near Dehuroad, they
halted at Petrol pump. It is proved on record that Nitin Modha told
Approver that they would enter City of Pune at 8 pm. Accordingly,
exactly at 8 pm, Approver proceeded towards Pune from Dehuroad.
The jeep reached near Nigdi, Nitin Modha asked Approver to take
vehicle towards Mumbai and directed to take the vehicle by the side of
road. After halting jeep, Nitin Modha, Chhotu Ghisaiwala (A 10), and
Prasad Shetty (A 2) alighted from the jeep and told Approver that
they would stop one Santro and they would take lift from the said car
and once they sit in the Santro, he has to follow the Santro car by
Sumo jeep. Accordingly, within 10-15 minutes, one Santro car came
there, which was stopped by Nitin Modha. He had discussion with
driver of Santro for 2-3 minutes and thereafter all of them sat in Santro.
Thereafter, Approver overtook Santro and stopped in front of Santro.
Over this Nitin Modha asked him as to why he stopped Sumo in front
of Santro. Then Approver told that he was not knowing the way.
Thereafter Santro proceeded ahead. It was stopped after some
distance. Then Nitin Modha alighted from Santro along with Sagar
and Chhotu Ghisaiwala (A 10) and boarded Sumo. Thereafter Prasad
Shetty (A 2) proceeded in Santro which was followed by Approver.
Thereafter, Santro was stopped at some distance. Prasad Shetty (A 2)
stopped Santro near Dehugaon on old highway and tried to lock the
same, but he could not lock, hence, Sagar alighted from the jeep and
locked Santro. Prasad Shetty (A 2) took parcel of food from the Santro
which was purchased by Sagar. There was some conversation between
Sagar and Nitin Modha wherein Nitin Modha told him that at the
moment he receives ransom from father of Sagar, he would release
him and till that time, they would go for outing. It is also come in
evidence that before reaching Nigdi bridge, Nitin Modha was
continuously talking with somebody on his cell phone.
180] From the above evidence, it appears that, before reaching
Pune, Nitin Modha had some information regarding Sagar, hence, he
asked Approver to wait at petrol pump at Dehuroad and then they
started at 8.00 pm. From the said evidence it appears that, accused
No. 11 had knowledge about the travel programme of Sagar. Before
reaching Pune, accused No.11 asked Approver to return back to
Mumbai from Nigdi bridge. Therefore, it is legally inferred that travel
route of Sagar was informed to Nitin Modha by Jitu Modha (A 6), on his
cell phone. As I have already pointed out that hotel of Jitu Modha (A 6)
was near the shop of Sagar. Therefore, it can be inferred that the
information regarding Sagar was received by Nitin Modha from Jitu
Modha (A 6) and none else. Nitin Modha had told Approver that he
wanted to go to Pune for recovery of amount from somebody and then
he came to Pune. But, before reaching Pune, he started his return
journey along with Sagar by abducting him. Therefore, it can be easily
inferred that before leaving Pune, Nitin had a plan to abduct Sagar
with the help of Prasad Shetty (A 2) and Chhotu Ghisaiwala (A 10). The
Santro car of Sagar was abandoned near Dehuraod, which was found
by complainant on next day. Similarly, the key of car was found in the
articles found from the person of deceased Sagar, whose dead body
was found at Kaprala. So, it is inferred that in pursuance of the plan
of abduction of Sagar, Nitin Modha came to Pune, along with Prasad
Shetty (A 2), and Chhotu Ghisaiwala (A 10). The Approver was taken as
a driver, who was given idea that Nitin Modha was to recover some
amount from a person from Pune and hence he accompanied him.
Therefore, Approver had also knowledge about the plan of Nitin Modha
regarding abduction.

181] It is further proved on record that Nitin Modha brought
Sagar at Baroda where Nitin Modha called Chhotu Choudhari (A 4),
who came there and made arrangement of accommodation of accused
Nitin Modha , Prasad Shetty (A 2), Chhotu Ghisaiwala (A 10) and
Approver. The said fact is proved through the evidence of Jayantibhai
Patel (PW 15) and Vinubhai Patel (PW 24). It is also proved on record
that Jagmalsing Choudhary ( A 3) had also accompanied Chhotu
Choudhari (A 4) and made arrangement of food of accused Nitin
Modha and others along with Sagar. It is also proved that Chhotu
Choudhari (A 4) made arranged of Nitin Modha, Sagar and others in the
house of one Manjuben and then Rana and they stayed there for about
7 days. During that time, Jagmalsing Choudhary ( A 3) used to make
arrangement of food of said persons. It appears from evidence of
Approver that, once Jagmalsing Choudhary ( A 3) had accompanied
Accused No. 4, to make arrangement of food. The arrangement of
accommodation was made by Accused No. 4 independently.
Jagmalsing Choudhary ( A 3) was no way concerned with the
arrangement of accommodation. Similarly, he had not accompanied
accused No. 11 to anywhere to facilitate him to hide Sagar. Therefore, it
cannot be inferred that Jagmalsing Choudhary ( A 3) had taken part in
criminal conspiracy to abduct Sagar or to help other accused persons
in concealment of Sagar at Baroda or any other place. Therefore, it can
be inferred that Chhotu Choudhari (A 4) had knowledge of plan of
Nitin Modha and he contributed by providing them accommodation
as well as making food arrangement of Nitin Modha and others for
about 7-8 days. Similarly, he had carried audio cassette of Sagar to
Pune.
182] It is also proved on record that during the stay in the
premises of Rana, Nitin Modha brought tape-recorder and small
cassette and voice of Sagar was recorded on tape for sending it to
father of Sagar for ransom. It is also proved that conversation of Sagar
recorded on cassette was sent to Pune. The said cassette was kept
below the eucalyptus tree in Khandoba temple, which was seized by
police in presence of Sudhir Sahani and Suresh Rupesha which was
played in police station, wherein the voice of Sagar was identified by
complainant. The transcription of the said conversation was made
under panchanama, on going through the same, it appears that,
Sagar was under threat of Nitin Modha and others, for ransom. It is
also brought on record that the said cassette was brought to Pune by
Chhotu Choudhari (A 4) and then he returned back to Baroda and gave
information of the same to Jagmalsing Choudhary ( A 3) as well as Nitin
Modha. Therefore, it is proved that Chhotu Choudhari (A 4) had also
taken part in conspiracy to abduct Sagar.
183] It is also proved on record that Bhikubhai Thanki (A 5) met
Nitin Modha and others at village Chotila and made arrangement of
their stay in the hotel Shri. Nagina. Similarly, he provided his sumo
to accused for carrying Sagar to Baroda from Pune. Therefore, he
had knowledge about the abduction of Sagar. Similarly, he took
active part in the conspiracy by providing his Sumo to accused as
well as made arrangement for their stay in Shri Nagina hotel. The
owner of hotel Shri. Nagina viz. Yogesh Jaiswal (PW 13) proved the
stay of Sagar, Nitin Modha and others in the said hotel. It is also
proved on record that on 23/8/05 Approver, Nitin Modha, Sagar had
stayed in hotel near Sarkhes, Ahmedabad. It is also brought on record
that in the early morning of 25/8/05, Nitin Modha, Approver, Sagar
and others stayed in the hotel Bhagyoday which was raided by police
of Gujrat. On this point, evidence of police constable Shantilal Wasava
(PW 21) is material, who had given detail description of his visit to
Hotel Bhagyodaya in search of dacoits, who committed murder of
ASI of Udwada Outpost. It is also brought on record that during the
stay at Sarkhes and Bhagyodaya Lodge, Nitin Modha was receiving
telephonic calls and he used to change his programme. Ultimately he
left Bhgyodaya Lodge and proceeded towards Nasik and then he
changed his plan and proceeded towards Wapi and in the way in the
forest of Kaprala, Prasad Shetty (A 2) cut the throat of Sagar in the
jeep and then thrown the dead body of Sagar in the forest. It is also
come on record that Sumo was halted at petrol pump and Sumo and
articles therein were washed. Similarly, Prasad Shetty (A 2) Chhotu
Ghisaiwala (A 10) and Nitin Modha washed their clothes. It is also
brought on record that Nitin Modha snatched ornaments of Sagar
while throwing his body in the forest. It is also proved on record that
after throwing the body in the forest, they came back to Karzan and
stayed in Siddharth Hotel, where Prasad Shetty (A 2) washed his
bloodstained clothes. Thereafter Nitin Modha and Chhotu Ghisaiwala (A
10) went out of hotel and Nitin Modha paid Rs. 50,000/- each to
Approver, Chhotu Ghisaiwala (A 10) and Prasad Shetty (A 2) and told
that he received less amount from Bhai at Dubai. Thereafter, Approver
had redeemed the gold ornaments of Nitin Modha and returned back
Rs. 6,000/- to Nitin Modha and thereafter they all departed and
Approver returned back to his village.
184] From the above evidence, it is proved that accused
Bhikubhai Thanki (A 5), joined accused Nitin Modha at village Chotila
and made arrangement of stay of Nitin Modha, Sagar and others.
Thereafter Sagar was taken to different places namely, Sarkhes and on
the way to Nasik he was killed in the Sumo. Therefore, from the said
evidence, it can be inferred that Nitin Modha had decided to abduct
Sagar for ransom. It is also established from the evidence of
complainant and Sudhir Sahani that complainant paid Rs. 15 lacs to
absconding accused Shamsuddin and Kadarbhai at Mumbai on
24/8/05. Thereafter on next day, Sagar was killed. Accused Nitin
Modha received Rs. 2,75,000/- through UAE Exchange on 26/8/2005
and documents to that effect are produced on record which are
proved through manager of Patel Visihnubhai Kantilal company,
Mukeshbhai Patel (PW 40) who are engaged in courier business.
Accused Nitin Modha submitted receipt of UAE Exchange, wherein there
is reference of Alibhai, who used to call him many times, which were
received by him. The said documents are at Exhs. 516/A,B,C,D. So,
from the oral evidence of Approver coupled with the documentary
evidence, and evidence of other witnesses, Mukeshbhai Patel (PW 40)
and Vishnubhai Patel (PW 30), it is proved that Nitin Modha received
amount of Rs. 2,75,000/- on 26/8/05, which was distributed by him
between Prasad Shetty (A 2), Chhotu Ghisaiwala (A 10), and Approver.
Therefore, it can be said that Nitin Modha hatched criminal conspiracy
along with Prasad Shetty (A 2), Chhotu Choudhari (A 4), Chhotu
Ghisaiwala (A 10) and Approver. So, there is complete chain of
circumstances to prove the conspiracy.
185] Besides the said evidence, prosecution has heavily relied on
the evidence of Dilip Joshi (PW 16). He deposes that, in 2005 he was
residing at Baroda. He was engaged in the business of Shri. Kismat
Kathewadiya Paratha House on handcart. His brother Rajesh was
assisting him in his business. He also employed a person namely
Jayanti for the same. He further deposes that, accused Bhikubhai
Thanki (A 5) who was cousin of his mother used to visit his stall.
Similarly, he used to supply food to Bhikubhai Thanki (A 5) wherever he
used to stay in hotel Sanman. He further deposes that, Bhikubhai
Thanki (A 5) introduced him to Nitin Modha. He came to know from
Bhikubhai Thanki (A 5) that, Nitin Modha was residing at Dubai and
working in jewellery shop. He further deposes that, he knows one
Anthony who used to visit his handcart. He was engaged in the
business of sale and purchase of landed properties. The person Prasad
Shetty (A 2) also used to come along with Anthony to his hand cart.
Anthony introduced him to Prasad Shetty (A 2). Along with Prasad
Shetty (A 2) Jagmalsing Choudhary ( A 3) also used to visit his stall.
Prasad Shetty (A 2) introduced him to Jagmalsing Choudhary ( A 3).
Jagmal was engaged in the business of marble. From the said
evidence, it appears that, accused Bhikubhai Thanki (A 5) , Prasad
Shetty (A 2) Nitin Modha and Jagmalsing Choudhary ( A 3) were
knowing each other and used to meet and they were known to witness
Dilip Joshi.

186] Witness Dilip Joshi further deposes that, on next day,
accused no. 11 came to his stall and had a tea. At that time, Nitin
Modha told him that he had to recover some amount from one person
and sought his assistance, but witness refused. Over this Nitin Modha
told him that he was coward and could not earn good money. In the
evening accused No. 2 and accused No. 11 told him that they were
proceeding to Surat in Indica car of accused No.3. Thereafter they left.
Then he had no contact with Nitin Modha, Prasad Shetty (A 2) and
Bhikubhai Thanki (A 5) for 7-8 days. In the month of August 2005,
accused No. 2 came to his house and told him to talk to accused No. 11
on phone. Accordingly he talked with accused Nol. 11. Accused No. 11
directed him to hand over his bag lying in his home and mobile to
accused No. 2. Accordingly, witness handed over bag and mobile of
accused No. 1 to accused No. 2. This evidence is supported by
Approver while describing his second trip to Pune. Witness further
deposes that, on 14/8/05 accused No. 3 came to his stall in the night
and told that accused No. 11 was going to call on his mobile.
Accordingly, there was call on the mobile of accused No.3. He told
him (witness) that he along with others had left from Surat and they
wanted to stay in his house. However, he refused by saying that he had
already guests at his home. Then they left. This evidence is very
crucial, which supports the evidence of Approver that, in the night of
14/8/05 they proceeded towards Baroda and on the way they halted at
Surat. They wanted to halt at Baroda, but no arrangement was made,
hence they went to the house of Manjuben and stayed there. The said
evidence is not clinching to prove the nexus between accused No.3
and Nitin Modha. At the most, it can be said that, accused No.3 had
given message of accused No. 11 to prosecution witness Dilip Joshi.
187] It is further deposed by witness Dilip Joshi that, two days
thereafter accused No. 11 came to his stall and directed him to
prepare food parcel for 5-6 persons. Accordingly, he made inquiry
about the persons accompanied him. Nitin Modha told him that said
persons had been to Baroda for some work, one of them was from
Pune and others were from Baroda. Nitin Modha had taken food
parcels from his stall for 2-3 days. It is also come in his evidence that
Approver and Nitin Modha used to bring parcel from him when they
were staying in the premises of Rana. So the evidence of Dilip Joshi is
also substantiated by the evidence of Approver on the point of
bringing food parcel from witness during their stay at Baroda.
188] From the evidence of Dilipbhai, it is aptly proved that he
was conversant with Nitin Modha, Prasad Shetty (A 2), Chhotu
Ghisaiwala (A 10) Jagmalsing Choudhary ( A 3), Bhikubhai Thanki (A 5).
All these accused used to visit his stall for meal. Similarly, he also used
to meet them frequently. Therefore, witness Dilip Joshi was having
close relation with Nitin Modha who disclosed him that he wanted to
recover some amount from a person at Pune and sought his help,
which he refused. The said incident had taken place in the last week
of July 2005 and thereafter the plan of abduction was executed by
Nitin Modha. Therefore, the evidence of Dilip is also helpful to prove the
design of abduction in the mind of accused Nitin Modha which was
expressed to Dilip Joshi. The accused Nitin Modha used to visit the
shop of Dilip along with accused no. 2. Nitin Modha (A 11) had sought
help of witness for recovery of money. Therefore, it can be said that
accused Nos. 2 and 11 had planned to recover the money from person
at Pune. In the said plan/design, accused No. 11 took help of Accused
No. 4, accused No. 5, accused No. 6, accused No. 11 and Approver.
Accused No. 6 provided information of Sagar to accused No. 11.
Accused No. 4 knew abduction of Sagar, still he made arrangement of
food and accomodation of accused no. 11 and also carried cassette to
Pune. Accused No. 5 provided his Sumo and also made arrangement of
accused No. 11 and others at Chotila. So, it is established that, accused
No. 11 had hatched conspiracy of abduction of Sagar for ransom.
Thereafter wrongfully confined Sagar at various places with the help of
other conspirators and ultimately, he killed Sagar with the accused No.
2 and 10.
Seizure of articles at the instance of Prasad Shetty (A 2) :

189] The first of it is seizure of weapon at the hands of Prasad
Shetty (A 2). It is the prosecution case that on 15/9/05 accused No.2
while in custody made a voluntary statement in presence of panch
witnesses and produced knife used in the crime. To prove the said
statement, prosecution has heavily relied on the evidence of panch
Dipak Zanje (PW 28). According to him, on 15/9/05 he was called in
some hotel at Baroda. He reached there at about 11.15 am. Police
authority from Pune and local police were present there. Other panch,
viz. Jadhav was also present. Accused gave statement in his presence
that he was ready to discover the clothes and knife, from the house of
Raja Pilley. The said statement was recorded by police in his presence.
It was read over to him he signed the same. He identified his signature
at serial No. 2 (Exh. 338). He further deposes that, accused took them
to the house of Raja Pilley. They all proceeded in TATA Sumo vehicle. It
was stopped near complex. Then they followed accused by foot. He led
them to the house of Raja Pilley. PI Rajendra Joshi (PW 54) talked with
the inmates of house and obtained their consent for the purpose of
discovery. He further deposes that, all of them went inside the house
of Raja Pilley. There was one cupboard. Accused took out bundle
from the cupboard and opened it. It contained T-shirt, pant and knife.
The knife was in a cover. Finger print expert and Forensic experts
were also present. They examined the articles. Thereafter panchanama
was drawn and he signed on each and every page of the panchanama,
( Exh. 339). The witness was also shown seized T-shirt, trouser and
knife with cover. He identified the said articles. He has also described
that T-shirt was black in colour in inscription Polo, on the pant there
was label of Trouser and on the knife it was scribed as Brazil.
The said articles are at Articles 41 to 44. Witness has also identified
Prasad Shetty (A 2) as the same person who made voluntary statement
before him.
190] In the cross-examination, he admits that, in the year
2005,, he was taking education in Unnati Vidyalaya, Baroda. At that
time, he was residing at Akota. He used to go school by walking. It
would take one hour to reach his school. At the relevant time he was
studying in 12
th
Std. His house was in the jurisdiction of J.P. Police
station . His school was in the jurisdiction of Sayajiganj police station.
He had no acquaintance with Police Authorities. Witness had
categorically stated that, on 15/9/05 he was called by police at some
hotel in Baroda. It is not his case that he was called at any police
station. similarly, he also admits that he had no acquaintance with
police. Therefore, it appears that, he was independent witness, who
was called by police to witness voluntary statement of accused. He
further admits that, he cannot tell the name of police who called him
on that day. He also admits that, Police Authorities were not in
uniform on that day. When he reached there, he did not have any idea
about the persons were Police Authorities. There were about 8-10
persons. He does not verify the identity of the persons present there
personally.. He had only talked with person Rajendra Joshi (PW 54)
present there, who told his name to him. It was suggested to witness
that accused was handcuffed, but the said suggestion is refuted by
him, but he subsequently admits that accused was in veil and his
hands were tied with rope. On the basis of said admission, learned
advocate Shri. Koshe has vehemently submitted that, the
voluntariness of alleged statement goes away, because hands of
accused were tied with rope. To substantiate his point he relied on the
ratio laid down in the case of Shankar Raju Banglorkar Vs. State
of Goa, reported in 1992 Cri.L.J. 3034 and Deoraj Deju Suvarna
Vs. State of Maharashtra reported in 1994 Cri.L.J. 3602. In both
the cases the alleged disclosure by accused were made in police
station while they were handcuffed. On this point, it was held that :
It could not be said beyond reasonable doubt that the recovery
was voluntary and not a result of duress, threat or pressure by
police authorities.
Hence, it was also held that :
Disclosure, made under duress, pressure or threats given by
police, is not admissible in view of Article 20 of Constitution.
On the basis of above ruling, it is to be seen whether the evidence on
record is cogent, cognate on the point of discovery of articles.
191] Witness Deepak Zanje (PW 28) further admits that, room
was on ground floor, wherein neither the room boy or manager of
hotel were present at the time of memorandum panchanama. He
further deposes that, at about 11.15 am, they left the room. He does
not know whether Sumo was private or government vehicle. They
reached within 15 minutes. The house of Pilley was in a society. He
does not remember the name of society and house number of Pilley.
The house comprises of two rooms and a kitchen. There were four
persons in the house. Police inspected the entire house. He does not
remember whether the statement of Pilley was recorded or not.
Nobody from the police party went outside the house. Investigation
car was not called at the house of Pilley. The photographs were taken.
The police authorities recorded the events in the chronology as they
occurred. Witness cannot assign any reason as to why it is not
mentioned in panchanama regarding photographs. He admits that, it
is not mentioned in seizure panchanama that the bundle was taken
out of almari. The omission is in respect of almari. It is mentioned in
the panchanama that accused took out the bundle from backside of
folded cot. The said bundle was not in open space. It appears that, it
was concealed behind the folded cot, so that attention should not be
attracted towards it. Therefore, the said omission is not material. What
is required tobe seen is that, whether the articles were concealed and
only the accused had knowledge about the same. It appears from
evidence of panch witness Deepak Zanje that, it was concealed in the
house and accused had produced the same. Therefore, from the
evidence of panch witness, voluntary statement as well as discovery
of article, at the instance of Prasad Shetty (A 2) is proved.

192] On this point, learned Spl. APP Shri. Shah has relied on the
ratio laid down in the case of Putalabai Bhimashankar Pattan Vs.
State of Maharashtra, reported in 2010 ALL MR (Cri) 2084,
wherein it was held that :
There can be no doubt that when accused is handcuffed he may
not be free from fear of the police or duress or pressure. But,
that itself cannot be a reason to discard the recovery of weapon if
it was otherwise found to be supported by evidence of the panch
witnesses and the investigating officer handcuffing of a person by
itself cannot be a reason to generalise the hypothesis that such a
discovery cannot be reliable case will have to be examined
in its own peculiar circumstances.
In the said ratio, cases relied on by learned advocate Shri. Koshe, are
referred. In the present case, from the evidence of Dipak Zanje it
appears that, police of Pune had been to Hotel at Baroda and
investigation was carried from the said hotel, therefore, it appears that,
for the purpose of safety accused might have been tied with rope. The
witness has categorically stated that, accused gave statement in his
presence that he was ready to discover weapon and clothes used in
the crime, from the house of Raja Pille, so description given by him
was specific i.e in respect of clothes , knife and place also. Similarly, it
appears that, accused led police party to the house of Raja Pille and
produced bundle containing his clothes and knife. The witness had
described the clothes as well as knife which were shown to him and he
identified it in the Court. Therefore, the evidence of Zanje was cogent
and cognate in respect of the recovery.
193] Similarly, the evidence of investigating officer in whose
presence accused Prasad Shetty (A 2) allegedly made voluntary
statement is also crucial. Investigating officer Rajendra Joshi (PW 54)
has categorically stated that, on 15/9/05 Prasad Shetty (A 2) gave
memorandum statement in presence of panch witnesses to discover
knife used in commission of offence. Accordingly, it was recorded (Exh.
338). He further deposes that, in pursuance of the said statement,
accused, panch witnesses and impugned order proceeded as per
direction of accused. Accused took them to the house of his friend Raja
Pilley. The accused discovered steel knife along with cover, pant and
T-shirt under panchanama. Therefore, the said evidence is also
substantiated by the panch witnesses. Therefore, even though the
accused was tied with rope, the evidence of panch witness and
investigating officer Rajendra Joshi (PW 54) is cogent and cognate.
Hence, their evidence cannot be brushed aside merely because
accused was tied by rope at the time of memorandum panchanama
and recovery panchanama. Therefore, I am not relying on the
submission of learned advocate Shri. Koshe and I inclined to rely on
the ratio laid don the case of Putalabai Bhimashankar Pattan Vs.
State of Maharashtra , reported in 2010 ALL MR (Cri) 2084,
supra , by Spl. APP.
194] Learned advocate Shri. Koshe submits that, investigating
officer ought to have recorded statement of Raja Pilley and his family
members But, no statement was recorded. Therefore, adverse
inference can be drawn against prosecution. On the other hand, Spl.
APP Shri. Shah submits that, there was no reason to record the
statement of inmates of the house because investigating officer has
specific information that articles were concealed in the house of Raja
Pilley. Accused led police party to the house of Raja Pilley and
produced the articles. Therefore, recording of statements of inmates
of the house of Pilley, was immaterial. I find considerable force in the
submission of learned Spl. APP Shri. Shah because, accused had given
specific information to investigating officer in presence of panchas
and in pursuance of the same, he produced the articles concealed in
the house of Raja Pilley. Therefore, it was not incumbent upon the
investigating officer to record the statement of Raja Pilley and his
family members.
195] Learned advocate Shri. Koshe submits that, photographs
were taken at the time of seizure panchanama, but those were not
produced. Panch Deepak Zanje admitted that photographs were taken,
but there is no material on record to establish that photographer was
present at the spot and he had taken photographs when accused had
produced articles, which were seized under panchanama. therefore,
there was no need to produce the photographs. The non-production of
photographs is also not fatal to the prosecution.
196] Learned advocate Shri. Koshe, also submits that, finger-
print expert and Scientific Expert were also present at the time of
seizure, but no report is produced of the same. Witness Deepak Zanje
(PW 28) stated that Scientific Expert as well as Handwriting Expert
were present at the time of panchanam and they have inspected the
articles, but report of Scientific Expert and Handwriting Expert is not
produced on record. He also submits that, the weapon and clothes
were referred to C.A, but the report of same is inconclusive. It is true
that, report of C.A in respect of knife is at Exh. 564, wherein it is
specifically mentioned that, the blade of knife ( dagger) was stained
with blood. He also opined that the said blood was of human origin, but
grouping of the same could not be done. Hence, C.A report is
inconclusive. But, the fact remains on record that, the blade of knife
was having human blood and the said circumstance goes against the
accused. Therefore, the discovery of knife at the instance of accused
No. 10 is incriminating circumstance against him.
197] According to prosecution, cell phone, currency notes, wrist
watch, visitng cards and diary etc. were seized from the possession of
Prasad Shetty (A 2) at the time of arrest on 8/9/05. The investigating
officer Balkrishna Agase (PW 51) has stated that he arrested accused
No. 2 on 8/9/2005 under panchanama Exh. 306. To prove the said
panchanama, prosecution has examined Bhavansing Darbar (PW 23).
According to him, on 8/9/05, at about 8.30 am, he was called in the
office of ATS, Ahmedabad. One police officer Agashe from Pune, was
present there. Similarly, Prasad Shetty (A 2) was also present there. He
was told that, police wanted to prepare arrest panchanama. He gave
his consent. In his presence Samsung mobile, 14 government currency
notes of 100 denominations, Titan watch, diary, railway ticket from
Baroda to Mumbai and several visiting cards were seized from the
possession of accused No. 2. Police sealed and seized said Article Nos.
74 to 80, 83 and 84 under panchanama. He identified said articles in
the Court. He also deposes that accused Chhotu Choudhari (A 4) was
also searched in his presence but nothing was seized from him.
198] In cross-examination, witness Darbar admits that, accused
were handcuffed. The said fact has no legal significance because
nothing was seized in pursuance of the of voluntary statement of
accused.The articles were seized in the personal search of the accused.
Witness admits that he was not using mobile phoen at the relevant
time, therefore, he was not knowing the working of mobile phone. His
signatures were not obtained on the diary. He did not see the date in
wrist watch. He did not talk the accused. The said admissions are not
crucial to discard the evidence of witness Darbar. In fact, the
prosecution had not proved the nexus of the seized articles with the
crime. Therefore, investigating officer has just completed formality of
the seizure of articles, at the time of arrest of the accused.
Seizure of articles at the instance of Chhotu Ghisaiwala
(A 10) :
199] The prosecution has also relied on the evidence of
Pramodkukmar Sharma (PW 42), who attended and attested the house
search of accused No. 10. According to him, on 6/9/05 he was called
by police authorities for the purpose of search of house. One Ram
Murti was also called for the same purpose in the house of Ravitsingh
Bhadoriya (A 10). The police started taking search of the house. The
house was locked. The police broke open the lock. They entered in the
house. There were two rooms. There were locks to the inner rooms
also. Those locks were broken by police. There was almira inside the
room. Police also broken its lock. A blue coloured polythene bag was
found inside the almira. In that bag there were some visiting cards
including that of A-1 Motors. There were about 17-18 articles. Another
box was also found in the room. It was also searched. But, nothing was
found in it. The articles were seized by police authorities under
panchanama (Exh. 390). The seized articles were :
9 visiting cards of A-1 Motor and Car-Decor, 2 visiting cards
of Sahil Shaikh, 1 visiting card of Gopal Khatri, visiting cards
of K.K.tours and Travels, 1 visiting card of Bajaj Allianze, 1
visiting card of Vivek Lohani, 1 visiting card of Tanya Mitra,
1 visiting card of Vipul Gandhi, one visiting card of Watlock
Control, 13 lottery tickets, receipt of Nes-Wadia college of
Commerce, Pune, in the name of Sagar Sahani, a receipt
issued by M/s Sagar Mat in the name of Sagar Agencies, a
receipt of Central park Hotel, Pune, receipt issued by CMS
Security, 4 HSBC Bank Credit receipts and cash memo of
Alfa Auto.
Witness deposes that, his signatures were taken on each and
every article. He further deposes that, he knows Ravitsingh and he
identified him as accused No. 10. He was also knowing Chhotu
Ghisaiwala (A 10) as he is his neighbour and his nick name is Chhotu.
He is also known as Surendrasingh. In the cross-examination, he
admits that, he is residing at Umredha. It was suggested to him that
there two groups in the village of Sharmas and Rajputs. But, the said
suggestion is refuted by him. He admits that, since 2005, he was
engaged in agricultural activities. Police authorities do not know him
by name. He was called by police while he was proceeding on the
road. He was near the house of Rampreet Sharma, around 12.30 to 1
noon. They went by foot. On the left side of house, where search was
taken, there was the house of Mr. Talle. On right side of that house,
there was open plot and wall followed by house of Pinkisingh
Bhadoriya. Police did not show him search warrant. He does not
know as to when police from Maharashtra came to Umredha. The house
was owned by Savindersingh. The owner was not called at house. The
police tried to find out persons from neighbouring houses, but they
could not get anyone. Photographs were not taken. Since no male
member was present in neighbourhood, police could not make inquiry
in respect of keys of house. Police had implements for breaking lock.
He does not know about the belongings of police. After breaking the
lock, police first entered the house. Police authorities from Maharashtra
and U.P entered in the house. He also went inside the house along with
them. He further deposes that, other than almira and box, there was
no other article. Police broken the locks of main door and other
rooms along with lock of almira and box. He was in the said house for
about 1 to 1 hours. In view of above evidence it is crystal clear that
witness Pramod is resident of Umeredha, he knows accused, similarly,
he knew that house which was searched, was belonging to accused No.
10. He had categorically stated that, in all 17-18 articles were found
in the bag in the said house. It is also come in his evidence that the
articles were seized and sealed with wax. Police put new lock to the
house and entrusted the key to Balgarsingh. Therefore, it can be said
that witness Pramodkumar Sharma has proved the search of house of
accused No. 10 and panchanama prepared in pursuance thereof. The
seized articles consists of visiting cards of A-1 Motor and Car-Decor,
2 visiting cards of Sahil Shaikh, 1 visiting card of Gopal Khatri, visiting
cards of K.K.tours and Travels, 1 visiting card of Bajaj Allianze, 1
visiting card of Vivek Lohani, 1 visiting card of Tanya Mitra, 1 visiting
card of Vipul Gandhi, one visiting card of Watlock Control, 13 lottery
tickets, receipt of Nes-Wadia college of Commerce, Pune, in the name
of Sagar Sahani, a receipt issued by M/s Sagar Mat in the name of
Sagar Agencies, a receipt of Central park Hotel, Pune, receipt issued by
CMS Security, 4 HSBC Bank Credit receipts and cash memo of Alfa
Auto. The said articles belong to deceased Sagar. No explanation of
whatsoever is given by accused no. 10. He simply denied the
panchanama. The seizure of articles proves the nexus between Chhotu
Ghisaiwala (A 10) and deceased Sagar.
200] In cross-examination witness admits that, he reached Pune
on 9/1/12. His friend Deepu, resident of his village stays in Pune, had
come to railway station to receive him. He had received Court
summons about 25 days ago . He did not meet police authorities after
coming to Pune. He reached Court at 9.45 am, A person viz. Gunga
Jagtap from Crime Branch has informed him on mobile that warrant
was issued by the Court. 15 minutes before reaching to the Court, he
met some person of Crime Branch. But, he did not have any discussion
with him in respect of the evidence to be given in Court. So, by the
said cross-examination, it was tried to show that he gave evidence at
the instance of police. But, from the said admission, it appears that,
witness had come to Pune a day before his evidence. He stayed with
his friend. Me met police officers just before his examination, but he
has categorically stated that, he had no discussion with police in
respect of evidence to be given in the Court. Therefore, it cannot be
said that witness was tutored to implicate the accused.
201] The prosecution has also relied on the panchanama of
personal search of accused No. 10. To prove the said panchanama,
prosecution has relied on the evidence of Ghansham Yadav (PW 39).
According to him, in the year 2006, he was posted at inter-State Crime
Branch, Chanakyapuri, New Delhi, as police constable. On 2/2/06, API
Gaikwad of Maharashtra police had approached him for assistance to
arrest accused Ravising Bhadoria (A 10) . Accordingly, he along with PSI
Naresh, accompanied team of API Gaikwad. He further deposes that,
API Gaikwad arrested Ravising ( A 10) under arrest memo (Exh. 374).
He further deposes that, in his presence personal search of accused
was taken and panchanama was prepared. Thereafter accused led
police party to the house of his brother Sudhir Bhadoria who was
residng at lane No. 3, Ira Nagar, near patoudi chowk, Gudgaon,
Hariyana. After entering in to the house, accused took out mobile
phone of Sony Ericson company, from almira in the wall. The said cell
phone was seized under panchanama (Exh.377). Witness has identified
seized mobile (article No.176) as well as accused in the Court. He
admits that, no written direction was given to him to assist API
Gaikwad. He does not remember whether entry was made in the
station diary while accompanying API Gaikwad. He used to maintain
daily diary, but it was not produced. On the basis of said admission,
learned advocate Shri. Koshe submits that, there is no material to
show that witness had accompanied API Gaikwad. But, on going
through the panchanama, it appears that, witness had signed the
arrest memo, seizure memo. Similarly, the brother of accused had also
signed the arrest memo. Therefore, it is aptly proved that, accused
was arrested and thereafter house of his brother was searched. Witnes
admits that, house was owned by Nandlal and it was taken on rent by
Sudhir Bhadoriya. The said Nandlal had also signed the arrest memo.
Therefore, it appears that, Nandlal and Sudhir were present at the time
of seizure of articles. In fact, the prosecution had not proved the
nexus of the seized articles with the crime. Therefore, investigating
officer has just completed formality of the seizure of articles, at the
time of arrest of the accused.

Seizure of Sumo. :
202] According to prosecution, Sumo bearing No. GJ-14/E-4992
was seized on 5/9/2010 which was parked in front of the house of Ajit
Kahar (PW 8). According to investigating officer Rajendra Joshi (PW
54) , on 5/9/05, he received information that Sumo used in the crime
was parked in front of house of Ajit Kahar. He immediately reached the
said place and seized Sumo. It was checked by Forensic Expert as well
as Finger-print expert. The necessary articles from the vehicle were
removed and seized under panchanama (Exh. 269). Similarly, articles
22 to 67 were seized under panchanama which includes the articles
found in the vehicle as well as spare parts of the jeep.
203] To support the said evidence, prosecution has relied on the
evidence of Ajit Kahar (PW 8) as well as panch Chandrasing Solanki,
(PW 9). According to Ajit Kahar, he had 7 brothers and 3 sisters. He
knew Dilip Joshi (PW 16). His brother Bipin let out hand-cart to
Dilipbhai. Dilipbhai used the said handcart for the stall of Kathewadi
eatables. He also used to have his food at the said stall and Dilipbhai
did not charge him for the same, as he used to assist him in purchasing
grocery for his business. He further deposes that, in August-September
2005, he was unemployed, hence he used to help Dilip in his stall, he
had requested Dilip to find out a job for him. Then after 2-3 days he
told him that he had arranged job for him. Accordingly, he introduced
him to Nitin Modha and told that he was in need of driver on his
vehicle. Nitin Modha also told him that his vehicle was on tour, as and
when it comes, he will employ him as a driver. Witness identified
accused No. 11. According to him, on 31/8/05 Nitin Modha along with
his brother-in-law and witness went to purchase Sumo from old vehicle
market at Surat. Dilip introduced him to brother-in-law of accused No.
11. Witness also identified Bhikubhai Thanki (A 5) as brother-in-law of
accused No.11. They went to Surat by bus and stayed in hotel. Next
day at 12 pm, they proceeded to purchase Sumo. However accused No.
11 did not like the vehicles there. Hence they returned. Accused No. 11
told him to come at Mumbai, however he refused it. At railway station
accused No. 11 hired Indica car and accused No. 11 and his brother-in-
law left in India towards Mumbai. At that time, accused No. 11
handed over him spare key of Sumo and told that the Sumo was parked
near the house of Dilipbhai and he directed him to take Sumo to his
residence. Accordingly, witness reached Baroda in night went to the
house of Dilipbhai and took the Sumo and kept in front of his
residence. After 2 days he received telephonic call of accused No. 11
and he told Nitin Modha (A 11) that he parked Sumo in front of his
house. Nitin Modha told him to cover the vehicle. Accordingly, he
covered the vehicle. He further deposes that, after 5 days police
authorities came to his house and demanded key of vehicle. Police
removed the cover and opened the vehicle, and took samples from it.
Police also removed the steering, knob of gear, seats etc. of Sumo.
204] In the cross-examination, Ajit Kahar he admits that since
1995 he was working as driver. Initially he drove Sumo and thereafter
he was driver on Luxury bus. He worked as driver at different places,
but he cannot tell its period and places. From the said evidence it
appears that, witness was driver by occupation. He worked as a driver
for about 4-5 years, during which he met many persons for driving
their vehicles.
205] Further, in the cross-examination, witness Kahar admits that
Dilipbhai came to Baroda a year before the incident. In the year 2005,
he worked with Mahesh Indore and Yogesh Patel. Witness admits that
he possesses driving licence of Heavy and Light Motor-vehicles. The
said part of evidence shows that witness had worked with several
persons as a driver. He admits that he did not work in Surat, hence he
was not knowing the roads in Surat. He further admits that he was
unemployed since July to September 2005, at that time he was helping
Dilipbhai in his food business. At that time, he used to meet Dilipbhai
everyday. Dilipbhai did not introduce him a person by name
Narayanbhai. In July 2005, Dilipbhai introduced him to accused No. 11
and his brother-in-law . In July 2005, he stayed in Surat for a night, but
he cannot tell the name of place where he stayed in Surat. This part of
evidence proves that Dilipbhai introduced witness to accused No. 5
and 11 in the month of July 2005
206] He also admits that, he cannot tell the number of Indica
car by which accused Nos. 5 and 11 left, but it was of white colour. He
also admits that, after returning from Surat, he did not meet Dilipbhai,
neither called or he talked with him. He does not recall the mobile
number on which he received call after two days. From the said cross-
examination, it is tried to impress that after returning from Surat,
witness did not meet Dilipbhai and he did not receive any call from
anybody. But, it is not case of accused that after returning from Surat
witness did not receive call and he had conversation with anybody.
Therefore, the said cross-examination is immaterial to discard his
evidence. Witness further admits that he does not notice any idols in
the vehicle. He also cannot recall the colour of interior of the vehicle.
There were 3-4 keys along with the key of Sumo. There was no key-
chain and remote in it. There were no special marks on the vehicle.
The police party which came to his residence included PI Rajendra
Joshi (PW 54). Police did not issue him any receipt when they had
taken the key and seized the vehicle. His statement was not recorded
at the time of seizure of vehicle. He further deposes that, after taking
out the steering, gearbox nob, seats from Sumo, police replaced it by
other parts. Sumo was taken to police station. thereafter 2-3 hours
he went to police station where his statement was recorded. He also
admits that, he signed the statement. But, in fact, said admission is
exaggeration. The statement does not bear his signature. He further
admits that, he signed as per request of police authorities. Thereafter
he went to police station on 15/5/05. He further admits that, he was
called at Siddharth Hotel once. His statement was recorded at Gorwa
police station. His statement was recorded in Hindi. He had seen the
statement . It was written in Marathi, which he could not understand.
Therefore, it can be said that witness was called at Gorwa police
station as well as at Siddharth Hotel and he was not shown any of the
accused persons. He did not state before police the place where he
stayed in Surat. He did not state police that steering wheel,gear knob
and seats were taken by police authorities from the said vehicle. In
fact, the said admissions are not material, because in the statement
witness Ajhit Khar he described the articles which were removed from
the jeep and those are mentioned in panchanama (Exh. 269). Similarly,
witness also specifically stated that police seized vehicles and also took
out some parts of the jeep which were inspected by Forensic expert. He
also admits that, he does not know as to where police took the jeep.
He also admits that, he did not tell police that Bipin had let out the
handcart to Dilipbhai 6-7 years prior to the incident. In fact, witness
has stated that about a year prior to incident, cart was let out. The
omission is in respect of the period of letting out the cart. But, he has
specifically deposed that his brother had let out hand cart to Dilipbhai,
where he was carrying his business of selling food. Therefore, the said
omission is also not material. He admits that, he did not know the
name of brother-in-law of accused No. 11. But, in fact, in the statement
the name of brother-in-law of accused No. 11 is mentioned, for which
no explanation is given. The said contradiction is also not material
because it is specifically established by prosecution that the name of
brother-in-law of accused No. 11 was Bhikubhai Thanki (A 5). Witness
has categorically identified accused No. 5 as brother-in-law of accused
No. 11, in the Court. Therefore, there is no dispute regarding the
identity of accused No. 5. Thus, the said contradiction is not material.
From the evidence of Ajit Kahar, it is established by prosecution that
accused No.11 had handed over keys of Sumo to him, while returning
from Surat. He was asked to take vehicle to his house from the house
of Dilipbhai. Accordingly, he had taken vehicle to his house and parked
it. Similarly, as per instruction of accused No. 11, he covered the
Sumo. Thereafter police came there and seized the Sumo.
207] On this point, the evidence of Dilip Joshi (PW 16) is also
crucial. According to him, 2-3 days after 26/8/05, he received call on
his land-line phone at Porbandar from Riyaz, who was working on
Luxury bus plying from Baroda to Porbandar. He told him that a Sumo
with cover was parked behind his house at Baroda. He asked him
about registration number of the vehicle, he told him that number
plate of Sumo was covered with mud and only number GJ-14 was seen.
Two days thereafter, he received call on his land-line from Ajit Kahar,
who told him that accused No. 11 had directed him, by giving the keys
of Sumo, to park it at ST colony. Then he tried to contact accused No.
11, however, his mobile was not reachable. The said evidence
supports the evidence of Ajit Kahar. It appears that, Ajit Kahar had
simply informed Dilip Joshi, that he was taking Sumo parked near his
house, as per direction of Nitin Modha (A 11).
208] To substantiate the evidence of Ajit Kahar, prosecution has
also relied on the evidence of Chandrasing Solanki (PW 9), who was
panch witness to the seizure panchanama of Sumo. According to him,
on 5/9/05, he was called at ST colony, Baroda, for panchanama.
Kamleshbhai Rajput was other panch. At that time, police authorities
from Pune, local police and Forensic Experts were also present. The
vehicle was in front of house of one Ajit Kahar. Police authorities
obtained key of the vehicle from Ajit in his presence. Sumo was
covered with blue cover. Police inspected the vehicle from all sides,
opened the door of vehicle and took samples of the red colour stains
seen in the vehicle. The stains were found on the door, seats, flooring.
Soil and hair were also found on the flooring. The samples of soil were
collected from vehicle. There were two key-chains of Ganapati and
pendent of heart. The steering wheel of the vehicle was taken out by
Forensic expert. The knob of gear shaft was also taken away by
experts. Packet of Balaji wafers was also found in vehicle. Police also
found packet of incense stick, jack, spanners, mirror, car tape, cassette,
comb, washing powder in the vehicle. Police seized those articles
under panchanama. Panchanama was prepared at ST colony. After
conclusion of panchanama, he signed it.
209] In cross-examination, witness admits that he does not
know the name of police officers. There were 5-6 police personnel
from Pune. None of them was present in the Court. So, it cannot be
said that he was pressurized by police officers to depose in the Court.
Witness further admits that, distance between his house and ST colony
is about 3 KM. No police officer came to his house on 5/9/05.
Witness further admits that his tailoring shop is at a distance of about
50 meters. from ST colony. This admission again shows the presence
of witness at ST colony was not co-incident, but he is having shop near
ST colony, therefore, he found there. Witness categorically admits
that, timing of his shop was from 8 am to 8.30 pm. He also admits
that, he reached ST colony i.e to the spot, at about 11 am. When he
reached there, police staff was present there. There were police
vehicles. He does not know as to what happened prior to his reaching
to the spot. The spot was situated in the society. The Sumo was
parked in front of the house of Ajit. This again confirms the evidence
of Ajit, who categorically stated that, he had parked the jeep in front of
the house as per say of Nitin Modha. Witness confirms that, Ajit stays
on the second floor of the building. There was no watchman. He met
police at Gorwa police station when he reached there. It shows that
after panchanama, he had been to the police station and thereafter he
met the police officers. He knows Ajit Kahar. But, he has no close
acquaintance with him. He admits that, he used to meet Ajit once in a
day. Ajit did not own Sumo. He does not know the type of key chain of
the key of Sumo. The said facts confirm the presence of witness on
the spot. He admits that he does not remember how many signatures
were put by him. But, he volunteers that he signed number of
documents as told by police. He also admits that, police seized about
45-50 articles. The articles were sealed separately by wrapping them
in brown paper. The said admission again confirms the seizure of
articles from the Sumo.
210] Witness further admits that, he did not meet person by
name Rathod and a lady namely, Dave, or a person namely Waghila,
that day. The said persons are not referred in the panchanama. It is
not revealed as to why the said questions were put to the witness. He
further admits that, video shooting was carried out. Photographs were
also taken. He did not notice that the police were having any steering
wheel, knob of the gear and the seats with them. Police did not bring
these articles from outside. After removing said articles, no new parts
were fitted. The said evidence is inconsistent with the evidence of Ajit
Kahar who stated that, police replaced steering, gear and seat and
original parts were taken for analysis. But, the fact remains on record
that, police had taken out steering wheel, knob of car and seat for
analysis. Therefore, non-fitting of the said parts does not affect the
evidence of witness.
211] Learned advocate Shri. Koshe has vehemently submitted
that, video-shooting was taken, but the said evidence is not produced
on record. Therefore, the adverse inference must be drawn. It appears
that, witness deposed about the video-shooting and photographs.
Panchanama is produced on record, which describes the events
occurred during panchanama. Similarly, the description of seizure of
each and every article is mentioned in the panchanama. There is no
whisper in the panchanama that, video-shooting and photographs were
taken during the panchanama. So, the evidence of panch witness on
that count, is exaggeration. Therefore, there is no question of
production of cassette of video-shooting and photographs on record.
Non-production of the same, does not affect the prosecution case,
because the act of seizure of Sumo by police is sufficiently established
from the evidence of witness Ajit Kahar and Chandrasing Solanki.
212] Witness Chandrasing further admits that it did not happen
that, police took folding seats in the rear part of the vehicle, it also did
not happen that police cut the piece of the leather foam on ceiling of
the vehicle and that of adjoining the doors of the vehicle. In fact, the
said seats and its leather were seized under panchanama. There are
number of articles seized. Therefore, the witness has not specifically
spoken about the said articles. But, he has specifically stated that
police seized one traveller's bag from the vehicle, which was probably
blue or black in colour. He also admits that, one person with white
beard was showing the articles inside the vehicle. Witness had no
knowledge of said person. It was suggested to him that police were
referring him as Narayan. But, it is denied. Witness has also deposed
that the tape was of Mitsubishi company. The battery of the vehicle
was taken out and seized. He also admits that, police seized number
plate. This part of evidence again confirms that he was present at the
time of panchanama and in his presence number of articles were
seized from the jeep, including steering wheel, knob of the gear, the
seats, tape recorder etc. On going through the evidence of Chandrasing
Solanki, prosecution has established the seizure of Sumo and its parts
under panchanama (Exh. 269). The evidence of Chanddrasing Solanki
substantiates the evidence of Ajit Kahar. So, if the evidence of Ajit
Kahar and Chandrasing Solanki along with evidence of investigating
officer Rajendra Joshi (PW 54) is read together, it is established that, at
the instance of Ajit Kahar, jeep was seized which was handed over to
him by accused Nitin Modha. There is sufficient evidence on record to
establish that said vehicle was used by accused for travelling from
Pune to Surat, Baroda and other places. Similarly, it was also used for
carrying abducted boy Sagar, at different places. Therefore, the
seizure of Sumo has much bearing on the case and it is major
circumstances against the accused.
213] I must mention here that, the articles seized from the Sumo
were sent to C.A for examination by letter Exh. 507. There were in all
32 items referred to C.A. Accordingly, C.A has submitted report at Exh.
322, wherein it was opined that, the samples at serial Nos. 1 to 6,
15,16,27, 28 taken from Sumo, were having blood of human origin
and its grouping was B. Similarly, the article at serial Nos. 13, 23 to 26
were having human blood, but its grouping could not be done.
Therefore, it can be said that the C.A. Report supports the prosecution
case that, Sagar was murdered in Sumo. Hence, there were bloodstains
in the Sumo jeep. The three rubber mats of Sumo, were also referred to
C.A., and accordingly C. A has submitted its report (Exh. 564), wherein
it is mentioned that rubber-mats were stained with blood. The said
blood was of human origin, but report of grouping is inconclusive.
Though Sumo was washed immediately after the incident by accused,
still, the articles were having human blood of B group.
214] On this point, the evidence of Jamsubhai Patara (PW 38) is
also crucial. In his presence police seized the clothes and articles of
deceased Sagar under panchanama (Exh. 371). According to him, on
27/8/05, police seized the jeans pant, T-shirt with stripes, holy string
and belt under panchanama. in cross-examination he admits that he
knows Kaprala police. He was called on several occasion by police. On
many occasions, he signed at the request of police. From the said
admission, it appears that, witness was stock witness of Kaprala police
station. But, it appears that, in his presence number of articles were
produced before police, which were seized under panchanama. The
said articles were sent to C.A. for examination. Accordingly, C.A has
submitted its report (Exh. 323), wherein it is mentioned that the
clothes, belt, remote of car and other articles found on the scene of
offence along with the dead body of Sagar were having human blood of
'B' group. So, it can be said that, blood group of deceased Sagar was
'B'. The articles found in the Sumo car were also having human blood
of 'B' group. So, seizure of articles from Sumo is also incriminating
circumstance against the accused.
Receipt of Rs. 2,75,000/- by Nitin Modha ( A 11).
215] It is the case of prosecution that Nitin Modha received
amount of Rs. 2,75,000/- on 22/8/05 through courier. Accused No. 11
and Chhotu Ghisaiwala (A 10) had been to said courier shop and
received the amount. To prove the said transaction, prosecution has
relied on the voluntary statement of accused No. 10 made in presence
of panch witnesses. The prosecution has examined Santosh Mane
(PW 25). He deposes that, on 16/2/06 he was called at police station
at 5.45 pm. It was told to him that accused present in the police
station intended to make some statement which was to be recorded.
He deposed that he does not recall the name of said accused, but he
identified the accused No. 10 before the court. In his presence accused
No. 10 made statement that he wanted to show the office of courier
and accordingly, his statement was recorded under panchanama (Exh.
329). He further deposes that, accused guided police authorities and
panch witnesses followed him. Accused took them to the area
Mandavi and showed one courier shop. Accused told that money was
sent from Mumbai to said courier. Police made inquiries from the shop
owner who told that an amount of Rs. 2,75,000/- was received by him
from Mumbai. Thereafter police conducted panchanama. (Exh. 330).
The owner of shop produced receipt which was seized by police.
Witness identified receipt Exh. 331. The owner also produced
photocopy of receipt of UAE Exchange and Financial Services Ltd.,
Baroda branch, dated 22/8/05( Exh. 332). In the cross-examination,
witness admits that he works in jeweller shop at Madvi, Baroda. On
16/2/06 he was proceeding to his shop, at that time he was called by
police. Mr. Agashe from Pune police called him. He was at police
station for about one hour. About 7-8 persons were present in the
police station when he reached there. He admits that some accused
were handcuffed at that time. Police told him that handcuffed person
wanted to make a statement. He further admits that, nobody from
outside came to police station while he was present. Police obtained
his signature. He does not remember the name of courier shop. But
he volunteered that it was Vishnubhai Kantilal Angdia. He admits
that whatever he deposed was within his knowledge and memory. He
also admits that, he does not remember whether signature of owner of
courier shop was obtained by police. Receipt Exh. 332 was issued by
courier shop, on the basis of identification paper produced by accused
No.11. On the basis of said admission, learned advocate Shri. Koshe
submits that, accused was handcuffed at the time of memorandum
statement, therefore, it cannot be considered as voluntary statement.
Hence, it should be ignored. But, in view of the ratio laid down in the
case of Putalabai Bhimashankar Pattan Vs. State of
Maharashtra, reported in 2010 ALL MR (Cri) 2084, the evidence
of panch witness and investigating officer is required tobe cosnidered.
Merely because accused was handcuffed, it does not mean that, his
statement was involuntary. Witness Santosh Mane has rightly
identified accused in the Court. He has categorically stated that,
accused made statement and led them to courier shop and the owner
of courier shop produced receipt and identification submitted by Nitin
Modha, were seized under panchanama. Therefore, the prosecution
has rightly proved voluntary statement and seizure of documents in
pursuance thereof.
216] The evidence of Santosh Mane is corroborated by
Mukeshbhai Patel (PW 40) who was working as manager with Patel
Vishnubhai Kantilal company who was engaged in the business of
courier. He deposes that, on 25/8/05 a person approached their
Mumbai office and told that he wanted to send amount of Rs.
2,75,000/- to Baroda. On the receipt, said person mentioned name of
Pruthvi Enterprises, Mumbai, as the name of sender and it was to be
delivered to a person Nitin S. Modha. Accordingly, receipt in respect of
receipt of amount of Rs. 2,75,000/214]- was issued to him. Thereafter
he sent said amount to Baroda branch along with delivery-man. Said
person delivered the cash at their Mumbai office (Exh.331). He also
deposes that deposit memo was issued in respect of the said
transaction, which he identified at Exh. 347. The said documents were
seized from the office of courier at Baroda in presence of Santosh
Mane, at the instance of accused No. 10.
217] In the cross-examination witness admits that he cannot tell
the name of a person whose handwriting appears on Exh. 331 and
347. The receipt issued to customer is in duplicate. He did not bring
with him receipt dated 25/8/05. He admits that, Exh. 331 and 347
bears his signature. He also admits that, he cannot tell who had
attended the customer on 25/8/05. The incident had taken place in the
month August 2005. Looking to the business of witness, it was difficult
for him to tell the name of scribe of receipt, after six years. But, he
admits that, in receipts Exh. 331, 347, the name of consignee is
written as Nitin Modha. He also admits that, he cannot tell which
branch office at Baroda, collected the amount. He also admits that,
there is no mention of denomination of currency notes. He admits
that, he did not handover the record of Mumbai branch to police. The
evidence of Mukeshbhai Patel ( PW 40) is crystal clear that Nitin
Modha had come to his shop on 26/8/05 and received the amount by
handing over his identification document, namely Exh. 332 and
accordingly, he issued receipt Exh. 347. The said receipt is in the
handwriting of witness Vishnu, therefore, from the evidence of Santosh
Mane, Vishnubhai Patel (PW 30) and Mukeshbhai Patel (PW 40), it is
established that Vishnubhai Kantibhai Angadia company had received
Rs. 2,75,000/- in their Bombay branch for handing it over to Nitin
Modha at Baroda. Accordingly, money was transferred by courier
company to its office at Baroda and on receipt of proper identification,
the said amount was paid to Nitin Modha on 26/8/05. Therefore, it is
established that accused Nitin Modha received Rs. 2,75,000/- on
26/8/05. Learned advocate Shri. Koshe, submits that, the alleged
amount was sent by Pruthvi Enterprises and not by Alibhai. It is true
that, in the receipt (Exh. 347), the name of sender is mentioned as
Pruthvi Enterprises. But, in the evidence of Approver, it is established
that the said money was sent by Bhai from Dubai. It was incumbent
upon accused No. 11 to explain that, the said transaction. But, no
explanation is given by him regarding receipt of Rs. 2,75,000/-. As I
have already observed that, the prosecution has established that
accused no. 11 has received Rs. 2,75,000/- on 26/8/05. Therefore, the
circumstance of accepting Rs. 2,75,000/- is incriminating circumstance
against accused No.11 involving him in the offence.
Test Identification Parade.
218] To prove the identity of accused, prosecution has relied on
the evidence of Vitthal Joshi (PW 41 and Sandesh Shirke (PW 45).
Vitthal Joshi deposes that, on 26/9/05 his office received letter from PI
Rajendra Joshi (PW 54) for conducting Test Identification Parade
(Ex.382). Accordingly he wrote a letter to Yerawada Jail and informed
them about holding of Test Identification Parade on 5/10/05.
Accordingly,on 5/10/05 at about 11/45 pm, he went to Yerawada Jail
along with two witnesses . He directed jail authorities to bring accused
before him. He informed them the procedure for conducting Test
Identification Parade. He ascertained the identity of accused. Then he
sent all the accused in different rooms. Thereafter he called accused
Prasad Shetty (A 2) and Arvindbhai Patel (A 4), Then he selected six
persons for each of the aforesaid accused having resemblance with
the age, height and physical features etc. from amongst the jail
inmates arranged by the jail authorities and made 12 dummies to
stand in a row. Then he also informed both the accused that they may
stand at any place as per their choice and may change their clothes,
after every round. At that time, the witnesses were directed to be
kept in a room near the entrance of the jail. Then he directed staff of
jail to bring one witness. The hall where the Test Identification Parade
was conducted was at the distance of 500-600 mtrs. from the the
room at the entrance of jail. Then he sent panch to bring the witness,
where Test Identification Parade was conducted. Accordingly,
witnesses Yogesh Jaiswal, Jayantibhai Patel, Govardhan Gupta, Suketu
Patel, Rajesh Raj, Ravi Shetty, Harish Shetty, Vinubhai Patel Arif Khatri,
Smt. Naina Mahida, Smt. Ushaben Patel were called one after other.
During the Test Identification Parade, Yogesh Jaiswal, Govardhan
Gupta, Rajesh Raj, Ravi Shetty, Harish Shetty, Arif Khatri and Smt.
Ushaben Patel did not identify any accused. However, Jayantibhai
Patel, Suketu Patel, Vinubhai Patel and Smt. Naina Mahida, identified
Accused No. 4.
219] Thereafter he called accused Jagmalsing Choudhary ( A 3)
and Bhikubhai Thanki (A 5) for Test Identification Parade. In the said
Test Identification Parade, Yogesh Jaiswal, did not identify any of the
accused. However, Jayantibhai Patel, Rajesh Raj, Vinubhai Patel Arif
Khatri, Smt. Naina Mahida and Smt. Ushaben identified accused No. .
3 and Govardhan Gupta, Ravi Shetty and Harish Shetty identified
accused No. 5.
220] Thereafter he called Jitu Modha (A 6) in the hall for Test
Identification Parade. But, none of the witnesses identified Jitu Modha
(A 6) in Test Identification Parade. Thereafter Approver Narayan
Jameria was called for Test Identification Parade, however, he was
identified by only witness Yogesh Jaiswal. Accordingly, he reduced in
to writing the events occurred in the Test Identification Parade under
panchanama Exh. 383.
221] Vitthal Joshi could not complete further Test
Identification Parade,on that day, as official time was over. Hence on
6/10/05 he conducted Test Identification Parade. He called accused nos.
2 and 4 in the hall. Accordingly, witnesses Shamal Mitra, Dattatraya
Kale, Dashrath Suryavanshi, Chimanbhai Patel, Anand Pandri, Sopan
Nimonkar, Jignesh Panwala, Jignesh Panwala, Parvinbhai Patel, Raju
Shetty, Deepak Sunariya, Kamlesh Modi, Ishwarbhai Patel, Shantilal
Vasava were called one after other. During the said Test Identification
Parade, Deepak Sunariya did not identify any accused. However,
Chimanbhai Patel, Jignesh Panwala, Jignesh Panwala,Parvinbhai Patel,
Raju Shetty, Ishwarbhai Patel,Shantilal Vasava identified Accused No. 2
and witness Shamal Mitra, Anand Pandri, Kamlesh Modi, identified
accused No. 4 and witness Sopan Nimonkar identified both the
accused persons.
222] Thereafter he called accused Jagmalsing Choudhary ( A 3)
and Bhikubhai Thanki (A 5) for Test Identification Parade. In the said
Test Identification Parade, Ninama Jalmani, Chimanbhai Patel, Anand
Pandri, Sopan Nimonkar, Jignesh Panwala, parvinbhai Patel, Raju
Shetty, Deepak Sunaliya, ishwarbhai Patel and Shantilal Vasava did not
identify any of the accused. However, witness Kamlesh Modi identified
accused No. 2 and Shamal Mitra, Dattatraya Kale, identified accused
No. 5 and Dasharath Suryavanshi identified both the accused.
Thereafter both the accused were entrusted to jail authorities.
223] Thereafter accused Jitu Modha (A 6) was called in the hall.
Witness Shamal Mitra, Dattatraya Kaled, Dashrath Suryavahsi, Ninama
Jalmani, Chimanbhai patel and Raju Shetty identified accused No.6.
However, Anand Pandri, Sopan Nimonkar, Jignesh Panwala, Parvinbhai
Paatel, Deepak Sunaliya, KamleshModi, Ishwarbhai Patel, and Shantilal
Vasava did not identify accused. Thereafter accused and dummies
were entrusted to jail authorities.
224] Then he called Narayan Jameria for Test Identification
Parade and he was identified by witnesses Ninama Jalmani Chimanbhai
Patel, Jignesh Panwala, Parvinbhai Patel, Ishwarbhai Paatel and
Shantilal Vasava. hen Vitthal Joshi prepared memorandum
panchanama (Exh. 385) and sent to PI Crime Branch.

225] In the cross-examination, witness admitted that he had not
issued letter to witnesses. He inspected the place where Test
Identification Parade was to be conducted. Witnesses were kept
present by Crime Branch. He does not know the names of the person
who issued letter to witnesses. He had intimated Crime Branch to
keep the witnesses present on 5/10/05. on the basis of said
admissions, learned advocate Shri. Koshe submits that, witnesses
should have been called by Ex. Magistrate, but he did not issue any
letter to them. In fact, the witnesses are from Gujrat, therefore, it was
difficult for Ex. Magistrate to secure their presence. Therefore, it
appears that, investigating officer and Crime Branch had taken
efforts to keep them present on given date. The evidence of Ex.
Magistrate is very clear that he had made arrangement of keeping
witnesses away from the hall where Test Identification Parade was
conducted. Witnesses were brought to hall by panch and the
employee of jail. Therefore, it appears that, the procedure is followed
by Ex. Magistrate. Witness further admits that he did not ascertain
the identity of accused as well as witnesses. He prepared list of
witnesses before starting Test Identification Parade but did not obtain
signatures of witnesses. The Test Identification Parade was held in the
hall. He wrote letter to jail authorities to keep witnesses present.
Therefore, there was no question of identity of the accused. As far
as identity of the witnesses is concerned, they were kept present by
Crime Branch, their names were recorded by Ex. Magistrate. Some of
the witnesses were examined in the case, they have specifically
deposed that they were called for Test Identification Parade at
Yerawada Jail wherein they identified some of the accused persons.
Therefore, there was no necessity for Ex. Magistrate to confirm the
identity of witnesses.
226] The witnesses examined in the Court have categorically
admitted in the cross-examination that, there was not resemblance
between accused and dummy accused. It appears that, the dummies
who were made available were used by him for Test Identification
Parade. Though Ex. Magistrate has stated that dummies were having
resemblance with the accused persons, but the said evidence bellied
by witnesses who were present at the time of Test Identification Parade.
Therefore, the evidence of Ex. Magistrate has relevance to the extent
that he was directed to hold Test Identification Parade, accordingly he
held Test Identification Parade in Yerawada Jail. There is major flaw in
the Test Identification Parade regarding selection of dummy accused
persons, because accused No.3 had injury on his head at the time of
Test Identification Parade. So, the person having similar injury or
bandage was not selected while Test Identification Parade. Therefore,
the Test Identification Parade to the extent of accused No.3 is doubtful.
227] The prosecution has also relied on the evidence of Sandesh
Shirke (PW 45). He deposes that, on 15/6/06 his office received
letter from Additional Commissioner of Police Crime-1 for conducting
Test Identification Parade (Ex.404). Accordingly he wrote a letter
(Exh.405) to Yerawada Jail and informed them about holding of Test
Identification Parade on 30/6/06. Accordingly,on 30/6/06 , he went to
Yerawada Jail along with two witnesses . He directed jail authorities to
bring accused before him. He informed them the procedure for
conducting Test Identification Parade. He ascertained the identity of
accused. Then he sent all the accused in different rooms. Thereafter
he called accused Chhotu Ghisaiwala (A 10). Then he selected six
persons having resemblance with the age, height and physical
features etc. of the accused, from amongst the jail inmates arranged by
the jail authorities and made them to stand in a row. Then he also
informed the accused that he may stand at any place as per his
choice and may change clothes, after every round. At that time, the
witnesses were directed to be kept in a room near the entrance of the
jail. Then he directed staff of jail to bring one witness. He sent panch
to bring the witness, where Test Identification Parade was conducted.
Accordingly, witnesses Dinubhai Patel, Ishwarbhai Patel, identified the
accused. In second round of Test Identification Parade, he sent panch
to bring the witnesses, where Test Identification Parade was conducted.
Accordingly, witnesses Paras Dodiya identified the accused. Thereafter
in next round, witness Parvinbhai Patel, he identified the accused. In
next round, witness Jayantibhai Patel was called, but he did not
identify the accused. Thereafter, witness Dilip Joshi and Ushaben Patel,
also identified the accused. Then accused and dummies were
entrusted to the jail authorities.
228] In the cross-examination, witness Sandesh Shirke admitted
that, he does not inquire in respect of period of police custody of the
accused, the places where he was taken an whether his photographs
were taken. He also does not verify about the belongings of accused.
There was a little bit of variance in the ages of dummies. He did not
record the full postal addresses of the dummies. He denied that
dummies were different in heights, hair styles etc. He does not
inquire the witnesses whether they had participated in earlier Test
Identification Parade. He does not mention in panchanama the serial
number starting from right to left side. But he volunteers that the
numbers are normally counted from the left side. The accused did not
go outside the hall. The witnesses were kept in a room adjoining the
entrance of the prison. It is brought on record that the distance
between the entrance of jail and the hall where Test Identification
Parade was held is 500 mtrs., therefore, there was sufficient distance
between the two places. Witnesses examined in the Court, namely
Jayantibhai Patel and Dilip Joshi, admitted that there was not
resemblance between accused and dummy accused. Therefore, it
appears that, the dummies who were made available were used by
him for Test Identification Parade. Though Ex. Magistrate has stated
that dummies were having resemblance with the accused persons,
but the said evidence is falsified by witnesses who were present at the
time of Test Identification Parade. Therefore, it appears that, he has not
taken proper care to select dummy accused.
229] Witness further deposes that on 27/10/06 he received
letter from Additional Commissioner of Police Crimes for holding Test
Identification Parade of Nitin Modha. Accordingly, he informed jail
authorities. On10/11/06 he went to Yerawada Jail along with panch
witnesses. Namely, Kailas Katke and Sanjay Shende. He called accused
No. 11 and informed him about the procedure of Test Identification
Parade. He selected six dummies. He ascertained the identity of
accused. Then he also informed the accused that he may stand at
any place as per his choice and may change clothes, after every
round. At the relevant time accused was wearing a cap. Accused was
informed to remove the cap, but he did not listen. Then he sent panch
to bring the witness, where Test Identification Parade was conducted.
Accordingly, witnesses Ishwarbhai Patel was brought, who identified
accused. Thereafter, witnesses Shantilal Vasava, Dilip Joshi,
jayantibhai Patel, Ushaben Patel, Vishnubhai Patel, Yogesh Jaiswal and
Dashrath Suryavanshi identified the accused No. 11. However,
witnesses Shamal Mitra and Soman Nimonkar did not identify the
accused. Thereafter accused was handed over to jail authorities.
230] In cross-examination, witness admits that dummies had not
worn cap. On the basis of said admission, learned advocate submits
that, there was difference between dummy persons and accused
hence, accused No. 11 was easily identifiable as he had worn cap. Ex.
Magistrate should have asked the dummies to wear cap, but no such
effort was made. Similarly, the accused No. 11 had special
identification mark namely, he is bald, similarly he is of fair
complexion. Therefore, the Ex. Magistrate should have selected such
dummies, but it appears that, he did not take any care and caution to
that effect.
231] The accused have also examined two witnesses namely
Baba Gaikwad (D.W. 1) and Atul Pawar ( D.W. 2) to demolish the
veracity of Ex. Magistrate. Baba Gaikwad deposes that since 2005 he
is in Yerawada Jail. On 5/10/05 and 6/10/05, he was not called by V.B.
Joshi. Similarly, he was never called in connection with the case of
accused. On the said dates he was not called in the Court hall of
Yerawada Jail for any purpose. In cross-examination he admits that, he
is convicted u/s 302 of IPC. He does not maintain his daily diary,
therefore, he is not recollecting each and every event occurred during
his stay in jail. Witness Atul Pawar has also deposes that, on 5/10/05
and 6/10/05 he was never called in connection with the case of
accused by jail authorities. He denied his presence at the time of Test
Identification Parade. On going through the Test Identification
memorandum, it appears that, Baba Gaikwad as well as Atul Pawar
were shown presetn as dummy accused. Ex. Magistrate V. V. Joshi has
categorically deposed that, he has called jail inmates as dummy
accused persons. The memorandum is proved by him, therefore, the
evidence of defence witnesses is not cogent and cognate. Both of
them don't maintain personal diary. They are in jail since prior to 2005.
Therefore, it is not possible for them to give every event occurred in
their life in the jail. The record prepared by Ex. Magistrate, appears to
be true. Therefore, defence witnesses did not make any complaint
that they were falsely shown present, at the time of Test Identification
Parade. The Ex. Magistrate had no animus against witnesses for
showing their false presence at the time of Test Identification Parade.
Therefore, I am not inclined to rely on the evidence of Baba Gaikwad
(D.W. 1) and Atul Pawar ( D.W. 2).
232] On the basis of evidence of Ex. Magistrates, Vitthal
Joshi (PW 41) and Sandesh Shirke (PW 45), learned Spl. APP Shri. Shah
submits that, the Test Identification Parade helped investigating
officer to confirm the identity of the accused. The accused are
identified by witnesses in the Court, therefore, though there is some
flaws in the Test Identification Parades, evidence of Ex. Magistrates,
cannot be disbelieved. To support his contentions, he has relied on the
ratio laid down in the case of Heera Vs. State of Rajasthan,
reported in AIR 2007 S.C. 2425, wherein it was held that :
The purpose of Test Identification Parade is to check the memory
of eye-witness and also for prosecution to decide as to who
can be cited as eye-witness. Parade to be held as early as
possible after arrest of accused.
Identification tests do not constitute substantive evidence. They
are primarily meant for the purpose of helping the investigating
agency with an assurance that their progress with the
investigation into the offence is proceeding on the right lines.
233] On going through the evidence of Ex. Magistrates, it
appears that, both of them had conducted Test Identification Parades,
wherein PW 6 identified accused Nos. 4,5,6; PW 7 identified accused
Nos. 4,5,6; PW 13 identified accused No. 4; PW 14 identified accused
No. 11 ; PW 15 identified accused Nos. 3,4 ; PW 16 identified accused
Nos. 2,3,5,6,10;, PW 21 identified accused Nos. 2,8 ; PW 24 identified
accused Nos. 4, 10, 11, and PW 33 identified accused Nos. 3 in Test
Identification Parades and all these witnesses identified accused No.
11 in Court also. So, it can be said that, most of the witnesses
examined in the Court have identified accused in court. Though there
is discrepancy in holding Test Identification Parade by Ex. Magistrates,
ocular evidence of witnesses cannot be brushed aside. The witnesses
have identified accused in Court. Therefore, prosecution has
sufficiently established the identity of accused Nos. 2, 4,5,6,10 and 11.

Seizure of articles at the instance of Chhotu Choudhari
(A 4).
234] The investigating officer Shri. Agashe deposes that, on
16/9/05, he took search of the house of Accused No. 4 and seized SIM
cards, visiting cards and other papers under panchanama (Exh. 344).
To prove the said panchanama, prosecution has relied on the evidence
of Maganbhai Hansoti (PW 29). According to him, on 16/9/05, he was
passing in front of Vaikunth flat at Baroda. Police called him. Police
wanted to search the house. Hence, they requested him to act as a
panch witness and consented for the same. He further deposes that,
police took search of room No. 352, block No. 30 in Vaikunth Flat. The
said flat was owned by one Parmar, but Arvindbhai Vitthalbhai Patel
( Accused No. 4 ) was residng there. At the time search Accused No. 4
was present there. The house was situated on ground floor. The first
room was adm. 10 x 10' . There was kitchen, toilet and bathroom in
the said flat. Arvindbhai produced one diary from the cupboard. He also
proudced 5-6 visiting cards, SIM card and 2-32 other papers. The
police officers retrieved the numbers from the data of SIM card and
prepared its list. He also found Pulsar motor-cycle bering No. GJ-1/DM-
4000, which was also seized by police under panchanama. The diary,
SIM cards were sealed and seized under panchanama. In cross-
examination, witness admits that, SIM cardwas inserted in the mobile
of police officer and then data was retrieved. But, he does not know the
name of police officer as well as make and IMER number of said phone.
The list of telephone number is at Exh. 345. It consists telephone
numbers of Nayan Shetty, Nitinbhai, N.Bhai, Sheety bhai etc. But, the
investigating officer has not shown any nexus between seized articles
and crime. From the evidence of witness Hansoti, it is simply
established that investigating officer Agashe took search of accused
Arvindbhai ( Accused No. 4) and seized certain articles.
Seizure of articles at the instance of Bhikubhai Thanki (A
5).
235] According to prosecution, two mobile phones, two gold
chains, currency notes, ATM cards, railway tickets etc. were seized
during personal search by investigating officer R.V.Phuge. To prove the
same, prosecution has examined Ashokbhai Makwana (PW 31). He
deposes that, on 9/9/05, he along with Sonji Thakur were called at ATS
office Ahmedabad. In his presence police took search of Bhikubhai
Thanki (A 5) and found two mobile phones, one was of Nokia and other
of Reliance company, gold chain, 3 government currency notes of 500
denomination, driving licence, 2 ATM cards, railway ticket from Mumbai
to Ahmedabad, receipt of Air ticket, bus ticket etc. under panchanama
(Exh. 150). Witness has identified seized Article No. 100 to 110 and
Bhikubhai Thanki (A 5).
236] In cross-examination, he admits that one police officer
Nagraj was present and he put his 7-8 signatures as directed by
Nagraj. He also admits that, the 4 persons were handcuffed. It
appears that, personal search of Bhikubhai Thanki (A 5) was taken.
The articles were not seized in pursuance of the voluntary statement .
Therefore, it does not matter whether accused was handcuffed or not.
It appears that, data of phone was retrieved and and its list was
prepared. But, there is no evidence on record to show that, the said
data was retrieved by following the procedure by expert persons.
Similarly, the said data was also not used by prosecution to connect
the accused to the present crime. It is simply established that number
of articles were seized from the possession of accused when he was
arrested. From the evidence of witness it is simply established that
investigating officer R.V. Phuge, took search of accused Arvindbhai (
Accused No. 5) and seized certain articles.
Specimen signatures and handwriting of accused.

237] The prosecution has obtained specimen handwriting
signatures of accused Nos. 2,4,5 and Approver in presence of panch
witnesses, under different panchanamas, for obtaining of opinion of
handwriting expert. To prove the said fact, prosecution has relied on
the evidence of Kishor Pagare (PW 17), Rajendra Kulkarni (PW 18),
Uttam Awale (PW 19), Pandurang Dixit (PW 20) and Shakil Khan (PW
32). According to Kishor Pagare, he was called in the office of Crime
Branch on 21/9/05. He was informed that police wanted to take
specimen signatures and handwriting from some accused. He
consented to it. When he reached police station, accused Prasad
Shetty (A 2) was present in the police station. He was told by police
that accused made entries in the register of hotel Siddharth and
Deepmala in false names and therefore, specimen signatures and
handwriting of accused No. 2 were necessary for obtaining the opinion
of expert. He further deposes that, police authorities obtained 6
samples of handwriting, each, alike the contents in the register of
hotel Siddharth and Deepmala from accused No. 2. Police authorities
also obtained his six specimen of signatures. The signatures of panch
witnesses were taken on each page containing sample. Accordingly,
panchanama was drawn and he signed the same. (Exh. 289). In the
cross-examination, he admits that he is employee of railway. Prior to
that, he was working with travel agency. He admits that he had
contacts with police authorities of Crime Branch. Prior to panchanama,
he had never been to the office of Commissioner, Pune. The office of
Crime Branch is situated within the premisses of office of Commissioner
of Police, Pune, which is near the Railway Station. He also admits that,
he cannot tell the name of the police officer who called him at Crime
Branch. But, he admits that he met PI Rajendra Joshi (PW 54) at Crime
Branch. Other than himself, PI Joshi, accused and other panch were
present there at the time of panchanama. He also admits that,
accused was not asked whether he wanted to make someone present,
at the time of taking his specimen signatures and handwriting. Said
admission speaks that witness was present when specimen signatures
and handwriting of accused were obtained.
238] Prosecution has also relied on the evidence of Rajendra
Kulkarni (PW 18), in whose presence, specimen signatures and
handwriting of accused No. 2 were taken. He admits that, on 21/9/05
at about 5.45 pm, he was called at Crime Branch, Pune. He was told
that he was called to witness panchanama in respect of obtaining
specimen signatures and handwriting of two accused. According to
him, specimen signatures and handwriting of both the accused were
taken on six pages each, in his presence. Thereafter on those pages,
the signatures of panch witnesses were taken. Accordingly,
panchanama (Exh. 291) was prepared. He was present in the police
station for 1 to 1 hours. However, witness has not identified the
accused whose handwriting was taken by police. In cross-examination
he admits that he had his fruit stall at Swargate. But, he does not
possess licence. Corporation has given him identity card as a vendor.
He admits that police authorities used to call him for some work. He
assists police authorities when called. However, he cannot tell as to
on how many occasions he was called by police authorities. He admits
that, he signed on the pages as per instruction of PI Rajendra Joshi
(PW 54). After affixing the signatures, he left. On the basis of said
evidence, learned advocate Shri. Koshe submits that, witness is stock
witness of police. He used to oblige police. It appears that, witness has
admitted that police authorities used to call him and he used to assist
police as and when called by them. But, he has categorically stated
that, in his presence specimen signatures and handwriting of two
persons were taken, but he has not identified those accused.
Therefore, his evidence is not helpful to prosecution to establish that
investigating officer has obtained specimen signatures and
handwriting of Prasad Shetty (A 2) and Bhikubhai Thanki (A 5).
239] Prosecution has also relied on the evidence of Uttam Awale
(PW 19) in whose specimen signatures and handwriting of accused
Chhotu Choudhari (A 4) were obtained. According to him, on 22/9/05,
while he was passing in the rickshaw in front of Commissioners office,
he was called by police authorities for panchanama. When he reached
to the police station, Chhotu Choudhari (A 4) was present. Police
authorities had taken out register of Divya lodge at Thane. He further
deposes that, according to police, in the said register, there were
some entries made by accused No. 4, samples alike the entries were
obtained by police authorities on 5-6 papers from accused No. 4. The
driver of rickshaw was also present as panch. Signatures of both the
panch witnesses were obtained on the papers on which the specimen
signatures and handwriting of accused were taken. Thereafter
panchanama was drawn (Exh. 293). In the cross-examination, witness
admits that he put 6 signatures on 6 papers. The papers on which
his signatures were obtained, were not shown to him in the Court. It
was suggested to him that, he was simply asked to sign on papers on
which specimen signatures and handwriting were already taken by
police. But, the said suggestion is denied. Therefore, from the
evidence of Uttam Awale, it can be said that police obtained specimen
signatures and handwriting of accused No. 4 in his presence under
panchanama.
240] The prosecution has also relied on the evidence of
Pandurang Dixit (PW 20), in whose presence specimen signatures and
handwriting of Approver Narayan Jameria were taken. Police wanted to
take specimen signatures and handwriting of Approver, as in the
register he mentioned his name as Narayan Thakkar. The registers
were in respect of Kohinoor Lodge and Lovely Guest House. For each
register six samples were taken on six different papers. Accordingly
panchanama was prepared (Exh. 297). The evidence of witness is not
denied by the defence.
241] According to Shakil Khan (PW 32), in whose presence
investigating officer has obtained specimen signatures and handwriting
of Bhikubhai Thanki (A 5), Police Authorities handed over six blank
papers to accused Bhikubhai Thanki (A 5) and he was directed to write
some material from visitors register of some hotel. Thereafter the
signatures of witness and other panch were taken on those papers,
under panchanama (Exh. 252). Witness identified Bhikubhai Thanki (A
5) in the Court. In the cross-examination, he admits that, in the year
2005, he was working with Raju Karanjawane as a labour, for
centering. In September 2005, the site was at Sadhu Waswani sqare.
The working hours were from 9 am to 5.30 to 6 pm. Police did not
come to the site in September 2005. He does not know Rajendra Joshi
(PW 54). When he had been to Crime Branch, he met PI Rajendra
Joshi (PW 54). He was called by constable. He met PI Rajendra Joshi
(PW 54) at about 6 pm on that day. In the office PI Joshi, two constables
and Bhikubhai Thanki (A 5) were present. At the time of panchanama,
he saw accused for the first time. At that time, accused was not
handcuffed. Nobody was veiled in the office of Crime Branch. Accused
was not tied with ropes. It was suggested to him, that his signatures
were obtained on 10 blank papers, but it is refuted by the witness.
There were no signatures of accused below the samples. Blank papers
were given to accused for obtaining samples. The title on the top of
documents Exhs. 354/1 to 354/6 were written by some police. On
perusal of the same, it appears that, the accused had written the
name as Narayan and he himself also put his signature. Therefore, it
appears from the evidence of Shakil Khan that in his presence police
obtained specimen signatures and handwriting of Bhikubhai Thanki (A
5) and conducted panchanama (Exh. 353).
242] It appears that, the specimen signatures and handwriting of
above accused persons were referred to Handwriting Expert.
Accordingly, Handwriting Expert has submitted his report along with
letter Exh. 565. The said report was not denied by defence.
Handwriting Expert opines that, he had examined documents, but it
was not possible for him to express any definite opinion on red
encircled writings and signatures written on disputed documents
namely Q-3, Q-3(a) Q-6, Q-7, Q-8, Q-9, Q-12, Q-13, Q-14, Q-15, Q-16,
Q-17, Q-19, and Q-21 respectively, in comparison with the specimen
signatures and handwriting, for want of sufficient identifying
characteristics. Handwriting Expert also opined that, the red-encircles
signatures marked Exhs. Q-2 and Q-18 show some similarities with
specimen signatures, however, it was not possible to express any
definite opinion on their common authorship on the basis of
comparison material. It is also opined that the person who wrote the
encircles writing on Exhs. S-1 to S-6 also wrote the red-encircled
writings marked Exh. Q-1; the person who wrote the encircles writing
on Exhs. S-7,12,13, 18 also wrote the red-encircled writings marked
Exh. Q-4,5 and the person who wrote the encircled writing on Exs. S-
19, 24, 25, 30 wrote the red-encircled writings marked Exh. Q-10,11.
243] It appears from the evidence of Approver that they had
stayed in different hotels at different times with bogus names. In the
hotel registers he had made entries and sometimes, accused Nos. 2,4,5
had signed the registers. On going through the specimen signatures
and handwriting, it appears that, accused persons had put their
signatures resembling to their signatures. It was expected from them
to put their signatures resembling to the signatures put by them on
the hotel registers. But, it appears that, it did not happen so.
Therefore, the opinion of Handwriting Expert is not in favour of
prosecution. Therefore, the effort of investigating officer to obtain
specimen signatures and handwriting for tallying with disputed
handwriting is went in vain. Therefore, said evidence is not helpful to
prosecution to substantiate the evidence of accused persons.
Seizure of mobile phones :
244] It is the case of prosecution that accused Nitin Modha ( A 11)
and Prasad Shetty (A 2) used mobile phones in order to contact the
complainant for demand of ransom. According to prosecution 6
mobile phones were seized from 2 persons Arif and Imran. For the
same, prosecution has relied on the evidence of Amjad Shah (PW 22)
who deposes that on 6/9/05 he was called at the office of ATS,
Ahmedabad for panchanama. Another panch Gaus was also
accompanied him. Two persons viz. Arif and Imran produced 6 mobile
phones which were seized under panchanama by police authorities. It
was told that the said mobiles were concerned in respect of some
abducting. Witness also deposes that the mobiles were of Nokia
company, they were red, blue, orange and black in colour. Police kept
those mobiles in envelopes, sealed and affixed labels. Then panch
witnesses signed the same (Articles 68 to 73). He has identified his
signature on panchanama Exh. 304. In cross-examination, he admits
that he cannot tell the name of person who called him for
panchanama. At the relevant time he was working as Medical
Representative. While he was passing in front of the office of ATS, he
was called. Police officer Shri. Pandya told him that mobiles were
seized from Arif and Imran. Mobiles were kept on the table. The sum
and substance of the evidence of Amjad Shah is that in his presence
Arif (PW 33) and Imran produced 6 mobile phones under panchanama.
245] To substantiate the evidence of Amjad Shah, the
prosecution has also relied on the evidence of Arif Khatri (PW 33). He
deposes that, he was employed with M/s Neema Telecom, Vadodara,
for repairs of mobile. Rajesh Jaswantsing Raj also works there. On
20/8/05 a person of fair complexion with French-cut beard along with
a person having black complexion visited his shop. He inquired in
respect of purchase of mobiles. The person with fair complexion
purchased second-hand mobile of Nokia make, model No. 3610. He
purchased it for Rs. 1300/-. A SIM card of Idea Cellular company was
also arranged and furnished to him. At the time of issuing SIM card, he
demanded documents of identity proof, however, the said person
replied that he would furnish it within two days and he insisted for
issuing SIM card, on saying that he knew the owner of the shop. At
that time, he also recharged his Reliance mobile phone at his shop.
246] Witness Arif Khatri further deposes that, again on 22/8/05
said persons returned to him as the phone sold to them was not
working. He further deposes that, he kept the said cell with him and
called him on 24/8/05. On that day he gave him mobile of Nokia make,
model No. 3350. On 25/8/05, said persons again returned and sold
mobile, Nokia make 3350 for Rs. 4,000/- to him and left. On 6/9/05,
police authorities approached the shop and made inquiries with him.
Accordingly his statement was recorded. He further deposes that,
mobile phone ( 3350) returned to by fair person, was sold by him to
person viz. Nerendra. He further deposes that, he was called at
Yerawada Jail for Test Identification Parade, wherein he identified
Jagmalsing Choudhary ( A 3). Similarly, he also identified Nitin Modha (
A 11). However, it appears that, witness has wrongly identified
Jagmalsing Choudhary ( A 3). According to prosecution, Prasad Shetty
(A 2) had been to mobile shop along with Nitin Modha.
247] In the cross-examination, witness Arif Khatri admits that
presently he is working at Anand. Imran Shaikh was the owner of M/s
Neema Telecom. He does not possess any document in respect of his
employment with M/s Neema Telecom. There were two employees at
M/s Neema Telecom in 2005 including him. About 30-40 customers
used to visit his shop. They were selling new as well as old mobiles.
While selling mobile, receipts were issued, which contains name of
purchaser, mobile number and cost. The bill was issued in duplicate.
Original was to be given to customer and office copy remains with
them. He admits that, he cannot tell as to how many mobiles were
sold by him on 20/8/05. He also admits that, he cannot tell the
number of second -hand mobiles available with him, on that day. He
also admits that, M/s Neema Telecom had no franchise of any mobile
company. It appears from the above cross-examination that, witness
was working in M/s Neema Telecom along with one another person,
similarly, they used to sale new as well as old mobile phones, though
he had no franchise from any company. He admits that, he was called
by ATS, Ahmedabad by Mr. Rajkumar Pandiyan and inquired for two
days. He was detained for two days. During the said period, his
signatures were not taken by the police authorities. None from the
mobile service providers were called. On the basis of said admissions,
learned advocate Shri. Koshe submits that, witness was suspected
accused, hence he was arrested. But, I am not inclined to accept the
said submission because, witness has himself admitted that he was
detained by ATS, Ahmedabad and similar evidence was given by
Rajkumar Pandiyan ( D.W.8). He deposes that he had detained some
persons from M/s Neema Communication. He admits that, he had
interrogated some local persons and information was supplied to Pune
police. He admits that he had interrogated official of telephone center
and some accused persons. He had interrogated Imran and Arif Shaikh
from Baroda. Therefore, it can be said that witness was detained for
inquiry and he was not arrested in any case.
248] Witness Arif Khatri further admits that, he had been to
Pune. He came to Pune on his own. He did not recall as to which ATS
officer he met at that time. He was at Pune for a day. Police did not
take him anywhere. He was inquired at the jail. At that time, he did
not receive any written intimation. He reached Yerawada Jail at about
10.30 to 11 am. He does not recall the time when he went inside the
jail and came out of it. He also admits that, his signatures were
obtained on some documents. He cannot tell the exact number of
persons present in the jail. He admits that nobody had showed him
any accused. He admits that, he was inside the jail for about 45
minutes to one hour. From the said evidence, it appears that, witness
was called at Pune for Test Identification Parade. He had been to
Yerawada Jail and he had identified Jagmalsing Choudhary ( A 3), Nitin
Modha in Test Identification Parade. As I have already observed that
identification of Jagmalsing Choudhary ( A 3) is incorrect and he
wrongly identified him instead of Prasad Shetty (A 2).
249] In the cross-examination by accused No. 3, witness admits
that price of mobile was paid by the person with French-cut. At the
relevant time accused No. 11 was having French-cut and he was
identified by the witness for the said reason. Similarly, witness has
admitted that he sold mobile to accused No.11, as he told that he
was knowing owner of shop namely Vickey @ Imran and showed his
visiting card. By the said suggestion, it is confirmed that accused No.
11 had been to the shop of M/s Neema Telecom and purchased cell
phone having model number 3350. Accused Nitin Modha returned
mobile phone to the witness as it was not working, thereafter he was
given mobile, model No. 3350 on 22/8/05 and he sold it to witness Arif
Khatri on 25/8/05 for Rs. 4,000/-.
250] To substantiate the evidence of Arif Khatri, prosecution has
relied on the evidence Naresh Navani (PW 26), who deposes that, he is
working as manager, with Krishna Enterprises since 2003, which was
engaged in sale and repairs of mobile phones. He knows Rajesh Raj
and Arif Khatri since December 2003. The said persons used to visit
his shop for the purpose of sale and purchase and repair of mobile
phones. In the year 2005, he purchased white coloured mobile of
Nokia make, model No. 3650, from Arif Khatri for Rs. 4,500/- and kept
with it. It had camera and colour display screen. On 15/9/05, police
authorities of Crime Branch came and told him that phone purchased
by him was used in crime by some accused persons. Therefore, it
was seized from him in presence of two panch witnesses. Thereafter
police recorded his statement. The said cell phone was kept in
envelope and sealed with wax. It was coloured mobile of Nokia
company of model No. 3650. Arif has given model number of mobile
which he sold to witness. But, on perusal of Article No. 134, it
appears that, it is having model No. 3650 and not 3350. Therefore,
the evidence of Arif is substantiated by Naresh Navani on material
particulars. In the cross-examination, Naresh Navani admits that he
does not know the manufacturing date of seized mobile. He admits
that, new model 3650 was costing around Rs. 8,500/-. He possessed
said mobile for 20 days, but he did not use it. It is suggested to him
that police authorities seized said mobile from him and he gave false
evidence at the instance of police, but it is refuted.
251] To prove the seizure of Nokia mobile model No. 3650,
prosecution has relied on Prashant Panchal (PW 27). According to him,
on 15/10/05 he was called at shop Krishna Enterprises by police
authorities. When he reached the shop, he was told that mobile needs
to be seized under panchanama from the said shop. Naresh Navani
produced mobile, in his presence, before police authorities and it was
seized under panchanama (Exh.336). He identified his signature on
panchanama and also identified mobile, which was of Nokia company
model No. 3650. Witness admits that he was working in a private
Insurance Company. His place of work was at 2 KM distance from the
shop of Naresh Navani. His residence was at a walking distance of 10
minutes from shop of Naresh Navani. He was called at the shop at 7.30
pm, by police. He was at the shop till 9 pm. Maharashtra police were
present there, they were accompanied with Gujrat police. He could not
give the names of said police. He also admits that, one Firoz was
another panch. He was in mobile business. From the said cross-
examination, it is confirmed that police seized mobile of Nokia
company, model No. 3650, from the shop of Naresh Navani in presence
of Prashant Panchal under panchanama (Exh 336). Naresh as well as
Prashant identified seized mobile (Article No.134).
252] From the evidence of witness Arif Khatri, Naresh Navani
and Prashant Panchal, prosecution has proved that accused No. 11 had
purchased mobile phone from Arif and thereafter he sold it to him
which was purchased by Naresh Navani and substantially it was seized
by police. No call details were obtained by investigating officer to
connect the seized mobile with the crime. Similarly, the evidence of
Approver is lacking on the point of use of seized mobile by accused
No.11. The investigating officer should have collected call details of
mobile phone alleged to have been used in the crime. But, no call
details of accused No. 11 were produced on record. Therefore, seizure
of mobile phones, is not useful to prosecution.

253] Learned advocate Shri. Koshe, submits that, the ATS Gujrat
had arrested some other accused persons in the crime, but the said
accused were subsequently let off, and present accused persons were
falsly implicated in the crime. To substantiate his point, he relied on the
news article published in daily Akila and Sandesh. To establish the
said facts, accused relied on the evidence of Dahyaji Vanjara (D.W. 7) ,
Rajkumar Pandiyan (D.W. 8), Ketan Khatri (D.W. 5) and Shena Vaidya
(D.W.6).
254] According to D.G. Vanajara, he was DIG, but he never
contacted Kaprala police station in connection with CR No. 58/05. He
deposes that, he was contacted by Crime Branch, Pune, in connection
with the CR No. 267/05 registered with Pimpri police station. He also
deposes that in the month of August, 2005, police officers Agashe, Joshi
and Jadhav of Crime Branch , Pune had met him. But, he denied that,
he had arrested some persons in connection with CR No. 267/05. He
also denied that he had supervised investigation carried out by Crime
Branch, Pune. But, he deposes that, S.P. Rajkumar Pandiyan (D.W. 8)
had assisted Crime Branch, Pune. He deposes that, there is lockup in
ATS office and now it is regarded as police station. He deposes that,
he might have granted permission to intercept calls of suspects. From
his evidence, it is not established that, ATS had arrested any person in
CR No. 267/05 of Pimpri police station.
255] The evidence of Rajkumar Pandiyan (D.W. 8) is also crucial.
He deposes that, on 28
th
or 29/8/05, Pune police had contacted him and
he had provided assistance to them for about a week. He also
deposes that, ATS officers had collected details of second hand mobile
handsets from M/s Neema Communication Center. He had interrogated
some local persons in connection with CR No. 267/05 and supplied
information to Pune police. He also deposes that he had interrogated
officials of M/s Neema Communication and some accused persons. He
had also interrogated Imran and Arif Shaikh from Baroda. He also
deposes that, said persons were kept in ATS office and not in ATS lock-
up. He has specifically denied that he had arrested any local person in
CR No. 267/05. Therefore, the evidence of Rajkumar Pandiyan (D.W. 8)
is also not helpful to defence to establish that, local accused were
arrested by ATS Gujrat in connection with present crime.
256] As far as news articles published in newspaper Akila is
concerned, the defence has examined Ketan Khatri (D.W.5), who
deposes that, he is working in daily evening newspaper Akila which
publishes from Rajkot. His journalists receive crime information from
reliable sources as well as from Press note from police. He was shown
news article appeared in his newspaper on 1/9/05. The said news
article is encircled and marked as Exh. 609. Its English translation is
also produced on record.
257] In cross-examination, he admits that, the head line of news
article ( Exh. 609) is having question mark. Therefore, the said
information may be true or false. His paper had contacted ATS
Ahmedabad for confirmation of news, but his reporter could not contact
ATS Ahmedabad for the same. The news article (Exh. 609) was not
published as per the Press note of ATS Ahmedabad. On going through
the news article, it appears that, one Shaikh was arrested in
kidnapping case of Sagar Sahani. But, it was guess work and therer was
no confirmation from police. Therefore, the said article is not helpful to
defence that some accused persons were arrested by Gujrat police.
258] To prove the news article published in daily newspaper
Sandesh, defence has relied on the evidence of Neha Vaidya (D.W.6),
who deposes that, she is working as Dy.Manager in the office of daily
Sandesh. On 3/9/05, news article was published in Sandesh, regarding
Sagar Sahani. The said news article is encircled and marked as Exh.
613. Its Englisih translation is also produced on record. In cross-
examination, she admits that, news article ( Exh. 613) was not based
on official information. In the newspaper it was mentioned that, gang
of Vickey operated his network from Dubai through satellite phone.
Sagar was abducted by the said gang. The members of said gang were
Muslim youth and were provided mobile phones with prepared SIM
cards. But, there is no reference in the news item that some local
persons were arrested by ATS Gujrat. Therefore, the evidence of Sneha
is also not helpful to defence to prove that some suspects were
arrested by Gujrat police and thereafter they were let out for the
reasons known to them and present accused falsely came to be
arrested.
259] From the evidence on record, it is established that, Nitin
Modha accused (A 11) had hatched criminal conspiracy with
absconding accused to abduct Sagar for ransom and accordingly, in
fact, he abducted Sagar with the help of accused Nos. Prasad Shetty (A
2), Chhotu Choudhari (A 4), Bhikubhai Thanki (A 5), Jitu Modha (A 6),
Chhotu Ghaisaiwala (A 10) and Approver. Sagar was taken to various
places in Sumo jeep of accused No. 5. Accused No. 4 made elaborate
arrangement of the accommodation as well as food of these accused
and Sagar. Therefore, it is proved that the accused Nos. 2,4,5,6,10
and 11 committed criminal conspiracy to abduct Sagar for ransom.
Hence, offence u/s 120-B of IPC is proved against accused Nos.
2,4,5,6,10 and 11.
260] It is established on record that, in pursuance of criminal
conspiracy between, accused Nitin Modha (A 11), Prasad Shetty (A 2),
Chhotu Choudhari (A 4), Bhikubhai Thanki (A 5), Jitu Modha (A 6),
Chhotu Ghisaiwala (A 10) and Approver abducted Sagar from Pune to
various places at Gujrat. Accused No. 11 demanded ransom from the
complainant. Accordingly, complainant paid Rs. 15 lacs to absconding
accused Shamsuddin Kunni, out of which accused No.11 received Rs.
2,75,000/- which he distributed amongst, himself, Prasad Shetty (A 2) ,
Chhotu Ghaisaiwala (A 10) and Approver. So, offence u/s 364(A) r/w
120-B of IPC is proved against accused Nos. 2,4,5,6,10 and 11.
261] It is also established on record that, accused Nos. 2,4,5,6,
10, 11 and Approver aided and abetted each other to abduct Sagar in
the evening of 14/8/05 and he was confined at various places at
Gujrat till the evening of 25/8/05. So, it is established the said accused
confined Sagar for more than ten days. Hence offence u/s 344 r/w 109
of IPC is proved against accused Nos. 2,4,5,6,10 and 11.
262] It is also proved on record that in pursuance of the criminal
conspiracy, Prasad Shetty (A 2) at the instance of Nitin Modha (A 11)
killed Sagar by cutting his throat by knife. Chhotu Ghisaiwala (A 10)
caught hold the hands and legs of Sagar while cutting his throat and
accused No. 11 helped to Prasad Shetty (A 2) by catching Sagar,
while killing Sagar. Therefore, the offence u/s 302 r/w 120-B of IPC is
also proved against Prasad Shetty (A 2), Chhotu Ghisaiwala (A 10) and
Nitin Modha (A 11).
263] It is come in the evidence of Approver that accused Nos.
2,10,11 threw dead body of Sagar in the forest area of Kaprala in the
night of 25/8/05. The said fact is established from the evidence of
Bistubhai Ghotiya, Kisanbhai Konti, Bhimjubhai Radiya and Rambhai
Zala. So, it is proved that said accused Nos. 2,10 and 11 committed
murder of Sagar and caused the evidence to disappear by throwing
dead body of Sagar in the forest area with intention of screening
themselves from legal punishment. Hence offence u/s 201 r/w 120-B
of IPC is proved against accused Nos. 2,10 and 11.
264] It is also proved on record that when Sagar was kidnapped,
Nitin Modha snatched Rs. 5,000/- from his person. It is also proved
that Sagar had concealed Rs. 24,000/- in his socks, which were also
snatched by Nitin Modha. Therefore, I hold that Nitin Modha (A 11) has
robbed Sagar for Rs. 29,000/-. Hence, offence u/s 392 of IPC is proved
against accused No. 11.
265] It is also proved on record that, Sagar was having gold
chain and bracelet. It is proved on record that while throwing dead
body of Sagar in the forest, Nitin Modha snatched the gold chain and
bracelet of Sagar. Therefore, offence u/s 404 of IPC is proved against
accused No. 11.
266] It is proved on record that, accused No.1 was present in
the office of absconding accused Shamsuddin when complainant and
Sudhir Sahani had been there to pay ransom of Rs. 15 lacs. It is
proved that accused No.1 was working with Shamsuddin as office-
boy. He used to stay out of cabin. He was simply called by accused
Shansuddin for counting the notes, therefore, it cannot be said that
accused No.1 had any criminal intention to provide help and aid to
Shamsuddin while committing the crime of receiving ransom. Except
the evidence of complainant and Sudhir Sahani there is no evidence
on record to establish that accused No.1 had any criminal intention to
count the money in order to help absconding accused Shamsuddin.
Therefore, the evidence on record is not sufficient to prove any charge
against accused No. 1 beyond reasonable doubt.
267] It is proved on record that Jagmalsing Choudhary ( A 3) did
not accompany accused No. 11 to Pune at any point of time. It is come
on record that, accused No. 3 had provided food articles to accused
Nitin Modha and others when they had come to Baroda. Except the
said evidence, there is no material on record to establish that he had
played any role in criminal conspiracy to abduct Sagar. Therefore, the
charge levelled against accused No. 3 is not proved beyond the shadow
of reasonable doubt.
268] It is proved on record that, accused Samantbhai Gadhvi (A
7) and Ajay Gadhvi ( A 8) had accompanied Approver and Nitin Modha
to Pune during first trip. There was no attempt made by Nitin Modha
for abduction of Sagar. Approver has admitted that Samantbhai
Gadhvi (A 7) was taken as driver of car and he had asked his cousin
Ajay Gadhvi ( A 8) to accompany him as spare driver. Therefore, it
can be said that no intentional aid was provided by them to Nitin
Modha to commit offence of abduction. It is proved on record that,
Samantbhai Gadhvi (A 7) and Ajay Gadhvi ( A 8) did not take part in
criminal conspiracy hatched by accused No. 11 to abduct Sagar for
ransom. It is also brought on record that Samantbhai Gadhvi (A 7)
had invested Rs. 1 lac with Bhikubhai Thanki (A 5), who had started
hotel at Pune. Therefore, Samantbhai Gadhvi (A 7) visited Pune to
recover his amount. The said fact is proved through the evidence of
Approver. Hence, it is proved that Samantbhai Gadhvi (A 7) had
independent cause to visit to Pune and he had taken his cousin Ajay
Gadhvi ( A 8) as spare driver. Therefore, the evidence on record is not
sufficient to hold them guilty in any way for the offence levelled against
them.
269] As far as accused Dinesh Tukadia (A 9) is concerned, he had
accompanied Approver and Nitin Modha in the second trip in July-
August 2005. It is proved that, there was attempt to abduct Sagar in
second trip. It is also proved that Nitin Modha had asked Approver to
chase car of Sagar at that time Dinesh was not present in the car, he
was waiting for Approver and Nitin Modha below Nigdi bridge. He had
no idea about the proposed plan of Nitin Modha. Similarly, it is also
proved on record that Dinesh had come to Pune, as driver on Ciena car
owned by his brother-in-law. The said car was taken on hire by Nitin
Modha. Therefore, there is no material on record to establish that
Dinesh Tukadia (A 9) is any way aided Nitin Modha in committing
crime u/s 344 r/w 109 of IPC.

270] Now it is to be seen whether provisions of MCOC Act are
applicable against the accused. As far as offences under Maharashtra
Control of Organised Crime Act, 1999 (MCOCA) are concerned, the
accused are facing offence u/s 3(1)(i), 3(2) and 3(4) of MCOCA. In order
to prove the offence under MCOC Act, the prosecution is required to
prove approval and sanction to the prosecution.
271] The investigation of offence under IPC was carried by PI
Rajendra Joshi (PW 54). He was supported by PI Balkrishna Agashe
(PW 51), Ovhal and Gaikwad. Rajendra Joshi (PW 54) deposes that, on
15/9/05 he gave letter to UAE Exchange and Financial Services, for
providing details of money transfer (Exh. 515). In view of letter,
branch head Manojkumar of UAE Exchange and Financial Services,
branch Baroda, produced two original documents in respect of money
transfer along with other document (Exh.516). He also produced two
receipts and two duplicate copies of receipts and one copy of identity
card of Nitin Modha (Exhs. 516-A to E). Similarly, he also produced on
record letter containing details of amount paid to Prasad Shetty (A 2)
(Exh. 517). He also produced on record the office copy of receipt
issued to Prasad Shetty (A 2). He also produced on record office copy
of identity card of Prasad Shetty (A 2) and receipt issued to him dated
25/7/05 for payment of Rs. 9,070.49. The receipt Exh. 516-A and B,
shows that money was transferred by one Mohammad Alibhai from
Dubai to Nitin Modha ( A 11). Similarly, from the receipt issued to
Prasad Shetty (A 2) it appears that, the money was sent by Pappu @
Sayyed Khalid from Dubai. He also deposes that the investigation
revealed that accused Sayyed Abed Hussain Alibhai and Vickey @ Aftab
Alam Mohammad Ayub, r/o Azamgadh, were involved in the crime.
Accordingly, he submitted his report to Pimpri police station (Exh.541).
He obtained previous charge-sheet of absconding accused and sent
proposal to Additional Commissioner of police, Pune, to invoke
provisions of MCOC Act, on 8/11/05 (Exh. 542). On the basis of said
proposal, the Additional Commissioner of police, Crimes, accorded
approval to invoke provisions of MCOCA vide order dated 22/11/05
(Ex. 474).
272] In the cross-examination, PI Rajendra Joshi (PW 54) admits
that, he did not get any information regarding period of stay of
absconding accused Alibhai and Vickey in India. The information of
Alibhai was received 15 days prior to his arrest after issuance of red
corner notice. He was arrested by Hyderabad police and he got him
transferred. He also admits that, Alibhai was arrested by Hyderabad
police u/s 364-A of IPC. He admits that at the time of submitting
proposal, no previous crime was registered against arrested accused.
He sent 3 certified copies of charge-sheets with proposal. So, it is
crystal clear that absconding accused Alibhai was facing more than
one charge-sheets and cognizance of the same was taken by
Competent Court. So, it is established that, accused Alibhai was
indulged in continuing unlawful activities along with accused Vickey
and others within preceding period of ten years. In this backdrop, the
evidence of Competent Authority who approved proposal, is very
crucial.
273] The proposal was approved by then Additional
Commissioner of Police Ashok Dhivare (PW 52). He deposes that, he
received proposal from P.I Crime Unit III, namely Rajendra Joshi, in
respect of C.R. No. 267/05, registered with Pimpri police station, Pune,
for invoking the provisions of MCOC Act against accused. Upon
considering the documents, he came to the conclusion that more than
one charge-sheet was registered against two accused out of 16
accused and competent Court had taken cognizance thereof. He also
formed his opinion that two accused had indulged in to commission of
organized crime for pecuniary gain by establishing the organized
crime syndicate. Hence, he granted approval (Exh. 473). Ashok
Dhivare (PW 52) directed ACP Sanjay Jadhav to carry out investigation
of offence. He also deposes that he directed ACP Unit II, to record the
confessional statement of Chhotu Choudhari (A 4) (Exh. 433). He
further deposes that, on 16/1/06, he addressed communication to
Additional Superintendent of Police, Central Bureau of investigation,
new Delhi for issuance of red-corner notice in respect of absconding
accused Sayyed Abed Hussain Alibhai and Vickey @ Aftab Alam
Mohammad Ayub. ( Exh. 476).
274] In the cross-examination, Ashok Dhivare (PW 52) admits
that, he received copies of FIR and certified copies of previous
charge-sheets along with proposal. He did not come across any
previous offence wherein all 16 accused were prosecuted. There was
no necessity to have offences registered against all the accused. There
was no material to show that any action was taken against the
accused in the Criminal law. Admittedly present accused were not
facing previous offences for pecuniary gain. He also admits that, he
did not prepare any notes before granting approval. In the proposal
there was no mention of previous offences committed in the State of
Maharashtra. He also admits that, in respect of absconding accused
Sayyed Abed Hussain Alibhai and Vickey @ Aftab Alam Mohammad
Ayub, no information was placed before him about their particular
residence for a particular period in India. He noticed that other than
the aforesaid two absconding accused, the charge-sheets produced
before him had no relevance with the other accused. He also admits
that, he was unable to tell whether the statements of neighbours of
accused were produced before him at the relevant time. He admits
that he was also unable to tell whether the information in respect of
family history and economical background was placed before him.
There was no necessity to obtain family history and economical
background of accused. What is required to be seen is criminal
antecedents. He admits that he had issued directions for recording
confessional statements of Narayan Jameria ( Approver ) and
Jagmalsing Choudhary ( A 3) on 6/12/05 and Chhotu Choudhari (A 4)
on 18/12/05. He also admits that he did not receive the information
regarding red corner notice issued by CBI. So, it can be said that
Ashok Dhivare (PW 52) perused the documents and record and
granted approval to invoke the provisions of MCOC Act against the
accused.
275] Now, it is to be seen whether absconding accused Sayyed
Abed Hussain Alibhai and Vickey @ Aftab Alam Mohammad Ayub, were
having previous crimes and Court had taken cognizance of the same,
during last 10 years. The prosecution has produced on record certified
copies of charge-sheets against absconding accused as well as
accused Ajay Gadhvi ( A 8) as under :

Police
station
CR No. Offence u/s C.C. No. Name of
accused
1 Bhakti
nagar,
Rajkot.
313/2000 302, 120-B,
188 of IPC
and 25 of
Arms Act.
39/04 Vickey @ Aftab
Alam
Mohammad
Ayub, etc.
2 Jethpur,
Rajkot.
320/2000 302, 120-B of
IOPC and 25
of Arms Act.
117/02. Vickey @ Aftab
Alam
Mohammad
Ayub.
3 Jubilee
Hills,
Hyderabad
.
76/01 365, 34 IPC 10/04 Sayyed Abed
Hussain Alibhai
and Vickey @
Aftab Alam
Mohammad
Ayub, etc.
4 Mumbai
R.A.K.marg
.
232/03 120-B, 364A,
302, 384, 34
of IPC
Alam
Mohammad
Ayub, etc.
5 Langar-
house,
Hyderabad
.
42/04 364A, 506,
341, 120-B of
IPC ; 25 of
Arms Act and
C-3 of MCOC
Act.
3/04 Sayyed Abed
Hussain Alibhai
and Vickey @
Aftab Alam
Mohammad
Ayub, etc.
6 AECD
CBCID,
Mumbai.
111/04
(276/04
Mahim )
387, 34 IPC 463/04 Vickey @ Aftab
Alam
Mohammad
Ayub, etc.
7 Umara
Surat.
132/04 307, 120-B of
IPC and 25 of
Arms Act.
Alam
Mohammad
Ayub.
8 Malakpeth,
Hyderabad
.
45/05 399, 468,
473 IPC and
25,27 of
Arms Act.
12/04 Sayyed Abed
Hussain Alibhai,
etc.

Police
station
CR No. Offence u/s C.C. No. Name of
accused
1 Chatushrugi 263/04 454, 457,
380, 34 of
IPC
127/05 Ajay Parvat
Gadhvi etc.
2 Swargate 648/04 454, 457,
380, 34 of
IPC
760/05 Ajay Parvat
Gadhvi etc.
3 Deccan. 750/04 454, 457,
380, 34 of
IPC
253/05 Ajay Parvat
Gadhvi etc.
276] As far as accused Ajay Gadhvi ( A 8) is concerned,
offences under IPC are not proved against him on record. Therefore,
the certified copies of charge-sheets produced by prosecution against
him, as above, may not help prosecution to prove the offence of
organized crime under MCOC Act against him.
277] On going through the above chart it appears that, the
charge-sheets at serial Nos. 3,4,5,6 are against absconding accused
Sayyed Abed Hussain Alibhai and Vickey @ Aftab Alam Mohammad
Ayub. Looking to the offence alleged against them, it can be said
that,the said offences were committed for ransom. Hence, it can be
said that, those were alleged to have been committed for pecuniary
gain. The said offences were committed by gang of Alibhai and Vickey
collectively. Thus, it can be said that, Alibhai had crime syndicate or
gang and they were indulging in activities of organized crime.
278] In the present case, it can be said that there was material
available for investigating officer to invoke the provisions of MCOC Act
and accordingly, the said proposal was approved by then Additional
Commissioner of Police Ashok Dhivare (PW 52). After application of
MCOC Act, the investigation was handed over to Sanjay Jadhav (PW
55). According to him, he received investigation of CR No. 267/05 on
22/11/05. He perused investigation papers. He moved application for
extension of time for investigation. It was accordingly extended till
6/12/05. He wrote a letter to Additional Commissioner of Police, Pune,
to record confessional statements of Approver and Jagmalsing
Choudhary ( A 3). Accordingly, Competent Authority appointed DCP
Ghurye to record confessional statement of Jagmalsing Choudhary ( A
3) and DCP Vitthal Jadhaav to record confessional statement of
Approver. Accordingly their confessional statements were recorded and
he received the same. On 12/12/05 he obtained police custody of
absconding accused Shamsuddin Kunni, accused Nos. 4 and 6
respectively. On 17/12/05 he referred report to Additional
Commissioner of Police for nominating competent officer to record
confessional statement of Accused No. 4. Accordingly, DCP Zone II,
Shri. A.D. Shinde recorded confessional statement of Accused No. 4.
He dispatched voice samples to Forensic Lab on 20/12/05 (Exh. 551).
He directed PI Ovhal to investigate in respect of the offences
registered at Hyderabad against absconding accused Alibhai and
Vickey. Accordingly, PI Ovhal submitted his report (Exh. 553).
279] On 5/2/05 API Milind Gaikwad submitted report in respect of
accused No. 10 (Exh.554). He received report from PI Joshi in respect of
investigation carried by him at Gujrat (Exh.555). On the basis of said
investigation carried by him, he submitted proposal for seeking
sanction to prosecute accused u/s MCOCA (Exh. 556). On 21/2/06
Competent Authority accorded sanction u/s 23(2) of MCOCA, hence he
filed charge-sheet against accused (Exh. 479). He further deposes
that, on 24/2/06 he forwarded report to Additional Commissioner of
Police for recording confessional statement of accused No.10 and
accordingly, DCP Solanki recorded the same. On 6/3/05, he referred
letter to Tahsildar for conducting Test Identification Parade in respect
of accused No. 10. On 30/6/06 Test Identification Parade of accused No.
10 was conducted. On 10/7/06 he sought permission u/s 23(2) of
MCOCA in respect of accused No 10 from Competent Authority (Exh.
561). On 15/7/06, he received information that accused No. 11 came
to be arrested at Delhi Airport while travelling, with the help of forged
passport. Accordingly, he sent team and arrested accused no. 11. On
24/7/06, sanction was accorded to prosecute accused No. 10 and then
on 26/7/06 he filed charge-sheet against accused No. 10. Thereafter
on 8/8/06 he made request to Competent Authority for appointment of
Competent Authority for recording confessional statement of accused
No. 11.
280] In the cross-examination, witness Sanjay Jadhav admits
that, he had received communication in respect of intercepting
international and national mobile numbers. He did not call
interception reports. Till filing of charge-sheet he did not receive such
reports. He did not record statement of Nodal officers in respect of
mobiles which were kept under surveillance. On the basis of same,
learned advocate Shri. Koshe submits that, no efforts were made by PI
to that effect. It is true that, the complainant had specifically stated
that he used to receive threat calls for payment of ransom. He had
given mobile number of caller. The order in respect of interception of
the same was passed, but unfortunately, investigating officer has not
tried its level best to obtain the report of service providers regarding
interception of telephonic calls. There is possibility that in spite of
direction, the calls were not intercepted.
281] In the cross-examination, he admits that, no accused sent
him a letter while they were in judicial custody. Similarly, no accused
sent letter in respect of his desire to give confessional statement
statement to him. He did not depute any officer to meet the
accused. He did not take any entry in station diary in respect of
willingness showed by the accused for confessional statement . On the
basis of said evidence, learned advocate Shri. Koshe submits that,
there was no written request made by accused persons for
expressing their desire to give confessional statement. It is specifically
stated by investigating officer that he had interrogated accused
persons and during that interrogation, they expressed desire to make
confessional statement and accordingly, Competent Authority were
appointed and statements of accused persons were recorded.
Similarly, none of the accused persons had retracted his confessional
statement. So, merely there were no written applications from accused
for recording their confessional statements, their confessional
statements cannot be vitiated. He also admits that, he did not receive
video cassette from Gujrat police. It is come in the evidence of
witnesses that police had taken video-shooting while preparing
panchanama of dead body of Sagar. The said cassette was not
handed over to investigating officer. The documents to that effect, in
the form of panchanamas are produced on record. Therefore, it cannot
be said that, there was major flaw in the investigation.
282] Witness Sanjay Jadhav further admits that arrested
accused have no concern with the absconding accused. It is true that,
present accused are not having any previous offences along with
absconding accused. The certified copies of charge-sheets filed on
record, shows that absconding accused Alilbhai and Vickey were
having crimes of such a nature, which can be called as organized
crime.
283] As far as sanction is concerned, witness Sanjay Jadhav
admitted that no sanction was received against accused No. 10.
Thereafter proposal was sent to Competent Authority and it was
granted. It was suggested to him that accused No. 10 was juvenile in
conflict with law, therefore, sanction was not accorded. But, said
suggestion is flatly denied. On going through the evidence of Sanjay
Jadhav, it appears that, he deputed police officers for recording
confessional statements of Approver, accused Nos. 3,4,10 and 11.
Accordingly, their statements were recorded by Competent Authority.
So, his evidence is formal in nature.
284] As far as the sanction to prosecution is concerned, it was
accorded by then Commissioner of Police D.N. Jadhav (PW 53).
According to him, on 9/2/06, he received report from Additional
Commissioner of Police Crime-1, Pune, seeking sanction to prosecute
the accused under provisions of MCOC Act. Upon perusal of the report
and documents appended thereto, he find it fit to grant sanction to
prosecute the accused under the provisions of MCOC Act. Accordingly,
he granted sanction vide order dated 21/2/06 (Exh. 479). Thereafter
he received the report dated 10/7/06 from investigating officer. On
perusal of report and documents, he accorded sanction to prosecute
accused Chhotu Ghisaiwala (A 10) on 24/7/06. Similarly, he received
report and documents seeking sanction to prosecute accused Nitin
Modha, accordingly he granted sanction (Exh. 481). In the cross-
examination, he admits that, he received the papers of investigation
and the documents in respect of criminal antecedents of absconding
accused Alibhai and Vickey. He mentioned about the said documents
in opening para of sanction letter. He does not mention about the
previous charge-sheets in respect of accused Alibhai and Vickey. It was
suggested to witness that no previous charge-sheet existed against
any of the accused as mentioned in sanction order (Exh. 479). But,
said suggestion is flatly refuted by the witness. The certified copies of
charge-sheet against Alibhai and Vickey are produced. Hence, said
suggestion has no legal significance. He also admits that, sanction
order does not mention about registration of any previous crime
against accused in State of Maharashtra. He admits that, while
passing order Exh. 479, sanction was not granted in respect of Chhotu
Ghisaiwala (A 10). In respect of accused No. 11, he had accorded
sanction and issued second sanction order (Exh. 479) against accused
No. 11. He also admits that, there is no need to re-issue sanction
against accused No. 11. He also admits that, two sanctions were
granted against accused no. 11. It appears that, second sanction was
granted against accused No. 11, due to oversight. None of the
sanctions vitiates the trial. Therefore, grant of sanction twice, will not
affect the prosecution case. In the said order it is specifically
mentioned that original accused Nos. 14,15,16 were having organized
crime syndicate and said syndicate had committed offences and
obtained illegal pecuniary benefit. The documents produced on record
(Exhs. 516-A to d , 517A to D) shows that accused Nitin Modha had
received amount from Mohd. Ali and Prasad Shetty (A 2) had received
amount from Pappu Alias Saeed Khalil from Dubai. Therefore, it can be
said that there was nexus between accused No.11 and these persons,
who were having more than one charge-sheets for offences
punishable for more than three years imprisonment. The cognizance
of the same was taken by Competent Court and cases are pending.
The certified copies of the same are produced on record. On going
through the said charge-sheets, it appears that, the said offences were
committed for obtaining pecuniary gain by absconding accused
Alibhai and Vickey. The absconding accused Alibhai and Vickey were
having criminal cases of the nature whereby it can be said that those
were committed for pecuniary gain, which proves the continuing
unlawful activities of said accused persons.

285] As I have already observed that accused Nitin Modha was
in contact with accused Alibhai, he received monetary benefit from
Alibhai from UAE, similarly, accused No. 2 had also such monetary
benefit from accused Pappu. The document to that effect is produced
and proved on record. Therefore, the prosecution has proved the
nexus between the absconding accused Alibhai and accused Nos. 2
for commission of offence of organized crime.

286] According to prosecution, accused No. 11 expressed his
desire to prove voluntary statement, hence, investigating officer
referred him to Competent Authority for recording his statement.
Accordingly, then Additional Commissioner of Police Rajendrasing
appointed Chhagan Wakde (PW 48), then DCP Zone I, Pune, to record
confessional statement of accused No. 11. According to him, on 9/8/06,
PI Rajendra Joshi (PW 54) produced accused no. 11 before him. He
then directed to leave Rajendra Joshi (PW 54). Accordingly accused
No. 11 was produced in his office. At that time, he along with his
computer operator constable Shri. Yadav and accused Nitin Modha
were present. He made inquiry with accused Nitin Modha in Hindi.
Accused Nitin Modha told that he was conversant with Hindi and
Gujrathi languages. On inquiry in Hindi, accused Nitin Modha gave his
name as Nitin Shantilal Modha, aged 26 years. On further inquiry, he
told that he was native of village Mokar, Tal. Ranabav, Dist. Porbandar
and at the relevant time he was residing at Sharaja, UAE. Upon inquiry
he further deposes that, he was studied up to 10
th
Std. witness
informed him his name and designation. Upon inquiry, he stated that
he was aware of the fact that he was produced in his office for
recording his confessional statement under the provisions of MCOC
Act. It was also informed to accused that it was not obligatory on his
part to give confessional statement or answer his questions and he
understood the same. Nitin Modha stated that he was aware that his
confessional statement could have been used against him in the
proceedings in the Court of Law. Nitin Modha also told that he was
neither pressurized nor promised anything for giving confessional
statement. He also told that he was neither physically assaulted nor
threatened during police custody. Witness ascertained the said fact by
removing clothes on person of Nitin Modha . Witness asked him as to
what confession he wanted to give. Over this, Nitin Modha told that he
wanted to tell in respect of abducting and murder of Sagar Sahani.
Thereafter he made Nitin Modha aware that he was given time to
rethink about his decision of giving confessional statement and would
be produced in his office on 10/8/06 at about 2.30 pm. It was also
informed to accused that it was not obligatory on his part to give
confessional statement when he would be produced on that day.
Witness recorded the same in question and answer form (Exh. 424).
287] Thereafter on 10/8/06, accused No. 11 was brought before
him by PSI Narote at about 2.45 pm. He directed PSI Narote to leave
his office. At that time, in his office, only constable Yadav and
accused were present. He inquired the accused in Hindi whether the
time given to him for cooling off was sufficient, which was answered
by accused in affirmative. On inquiry, he told that he was neither
physically tortured nor threatened or promised anything while in
police custody. Again, he intimated accused that it was not mandatory
for him to give confessional statement as it could be used against him
in the Court of law. At that time, accused told that he wanted to give
confessional statement on his own accord. He told that he wanted to
make statement in respect of abduction and murder of Sagar Sahani.
He recorded it in question and answer form. Upon it, he came to
conclusion that accused was willing to give voluntary confessional
statement in respect of abducton and murder of Sagar Sahani.
Accordingly, he made noting in English and started recording
confessional statement of accused No. 11 in Hindi as narrated by him.
After conclusion of confessional statement he read over its contents to
accused, in Hindi. He found the same to be correct. Thereafter the
accused and witness signed on each and every page of the
confessional statement. The confessional statement was followed by a
certificate in English language which he signed. (Exh. 425). He
further deposes that, thereafter he referred accused with PSI Narote to
the Chief Judicial Magistrate, Pune, along with covering letter coupled
with confessional statement in sealed envelope (Exh. 427).
Accordingly accused was produced before CJM on 11/8/06.
288] In the cross-examination, witness stated that, he did not
receive any documents along with communication dated 8/8/06. He
did not have any discussion with the investigating officer. On 8/8/06 he
issued letter to PI Shinde. PI Joshi introduced accused to him. He did
not verify the identity of accused. He also did not verify the sanction
under the provisions of MCOC Act against accused. He did not inquire
PI Joshi the period for which accused was in his custody. He admits
that, many persons were visiting Faraskhana police station. He did not
inquire in respect of the places where accused was taken during
investigation. The said inquiry was not material because what was
material, was whether accused gave his confessional statement
voluntarily and that too without any pressure, threat or inducement
of police. It appears from record produced by witness that Chhagan
Wakde (PW 48) had followed provisions of Criminal Manual as well as
he had taken care to verify whether accused was giving the statement
voluntarily and without any threat. He had given him sufficient time
for reflection of mind of accused. Even thereafter he took utmost care
to confirm whether accused was giving confessional statement
voluntarily. On second day, accused was produced before him and
thereafter statement was recorded. So, it can be said that the
statement of accused No. 11 was correctly recorded as per the
procedure. After recording of the confessional statement accused was
produced before then CJM Shri. Y.G. Chaware on 11/8/06. He verified
whether accused was tortured or harassed by police officers for
obtaining confessional statement. The statement of Nitin Modha (A 11)
was also recorded by CJM wherein Nitin Modha stated that he gave his
statement and he does not wish to state anything more than the
statement. He also stated that he was not harassed or tortured in any
way. Therefore, the evidence of Wakde is confirmed by CJM and
verified the voluntariness of accused to give the confessional
statement and recorded it. Therefore, statement recorded of accused
is voluntary. In the statement Nitin Modha has given minute details of
the incident right from the beginning, which substantiates the
evidence of Approver.
289] As far as applicability of provisions of MCOC Act are
concerned, the statement of Nitin Modha is very crucial because he
has specifically stated in his statement that, he was working at
Sharja, UAE. He lost his job. During that, he came in contact with
Alibhai and Vickey at Hyderabad. He agreed to work for them to earn
money. The said persons told him that he should abduct a person of
very rich family and then contact him so that they would extract
money from the parents of abducted person and then they would pay
him his share. It is further stated in confessional statement by
accused No.11 that he came to India, he went to Pune where he saw
Sagar. He came to know from his brother Jitu, that Sagar hails from rich
family, therefore, he decided to abduct Sagar, for which he took help
of his brother-in-law Bhikubhai Thanki (A 5), Prasad Shetty (A 2),
Chhotu Choudhari (A 4), Chhotu Ghisaiwala (A 10) and Approver. He
had given description of trips to Pune. Similarly, he gave telephone
numbers of Asif and Samant as 009715049909773 and
00971503024449. He also stated that after abduction of Sagar, he
was brought at Gujrat and then he stayed in various places along with
Prasad Shetty (A 2), Jagmalsing Choudhary ( A 3), Chhotu Choudhari (A
4), Bhikubhai Thanki (A 5), Chhotu Ghisaiwala (A 10) and Approver. He
had used three SIM numbers as 9824558278, 9824558298,
9898721068. He stated that he had recorded voice of Sagar on tape-
recorder which was sent to complainant through Chhotu Choudhari (A
4). The said cassette was received by complainant and then he decided
to pay the amount. He came to know from Asif that complainant paid
Rs. 15 lacs and he assured that he would get his share. He further
stated that, then he took Sagar in Sumo and in the night of 25/8/05.
Thereafter he asked Prasad Shetty (A 2) to kill Sagar, accordingly
Prasad Shetty (A 2) cut the neck of Sagar in the Sumo and Chhotu
Ghisaiwala (A 10) had held Sagar and then dead body was thrown in
the forest. Thereafter jeep was also taken to petrol pump and then it
was washed. He further stated that he received phone call from
Asif that he sent money and he is required to collect that amount and
accordingly, number was given to him. Thereafter he called person
on the said telephone number, who called him to his office.
Accordingly, he went there and received Rs. 2,75,000/-. Thereafter he
came back to Lodge and paid Rs. 70,000/- each, to Prasad Shetty (A
2), Chhotu Ghisaiwala (A 10) and Approver and then he took ticket for
Sharja and left on 2/9/05 and stayed there for about 4 months. The
said statement speaks that he had nexus with absconding accused
Alibhai and Vickey, who committed the offence.
290] Similarly, it is the case of prosecution that, Mahesh Ghurye
(PW 46) recorded the confessional statement of Jagmalsing Choudhary
( A 3). According to him, on 6/12/05 he received communication from
Additional Commissioner of Police, Pune, in respect of recording
confessional statement of accused Jagmalsing Choudhary ( A 3). He
sent letter to Additional Commissioner of Police, Crimes-1, Pune, to
produce accused before him. Accordingly, on 7/12/05 at about 5 pm,
he was produced by PI Rajendra Joshi (PW 54). He asked Rajendra
Joshi (PW 54) to leave his office. He ascertained that no police officers
was present in the vicinity of his office. At that time, he along with
his computer operator constable Shri. Yadav and accused were
present. He made inquiry with accused in Hindi. Accused told that
he was conversant with Hindi language. On inquiry in Hindi, accused
Jagmal Choudhary gave his name as Jagmal Bhuralal Choudhary, aged
about 28 years. On further inquiry, he told that he was native of
Rajasthan State and at the relevant time he was residing at Baroda,
Gujrat. Upon inquiry he further deposes that, he was studied up to
10
th
Std. He informed him his name and designation. Upon inquiry, he
stated that he was aware of the fact that he was produced in his office
for recording his confessional statement under the provisions of
MCOC Act. It was also informed to accused that it was not obligatory
on his part to give confessional statement or answer his questions and
he understood the same. Jagmal Choudhary stated that he was aware
that his confessional statement could be used against him in the
proceedings in the Court of Law. Jagmal Choudhary also told that he
was neither pressurized nor promised anything for giving confessional
statement. He also told that he was neither physically assaulted nor
threatened during police custody. He ascertained the said fact by
removing clothes on his person. He asked him as to what confession
he wanted to give. Over this, accused Jagmal Choudhary told that he
wanted to tell in respect of abduction and murder of Sagar Sahani.
Thereafter witness made him aware that he was given time to rethink
about his decision of giving confessional statement and would be
produced in his office on 9/12/05 at about 8.00 am. It was also
informed to accused that it was not obligatory on his part to give
confessional statement when he would be produced on that day.
Witness recorded the same in question and answer form (Exh. 412).
291] Thereafter on 9/12/05 accused No. 3 was brought before him
by PSI Pagare at about 8.15 am. He directed PSI Pagare to leave his
office. At that time, in his office, only constable Yadav and accused
were present. He inquired with the accused in Hindi whether the time
given to him for rethinking over his decision to give confession was
sufficient, which was answered by accused in affirmative. On inquiry,
he told that he was neither physically tortured nor threatened or
coerced during the said period. Again, witness intimated accused that
it was not mandatory for him to give confessional statement as it could
be used against him in the Court of law. At that time, accused told
that he still wanted to make statement in respect of abduction of
Sagar Sahani. Witness recorded it in question and answer form. Upon
it, he came to conclusion that accused was willing to give voluntary
confessional statement in respect ofabducting of Sagar Sahani.
Accordingly, witness recorded his satisfaction in respect of voluntary
nature of confession and commenced recording his confession. After
conclusion of confessional statement he read over its contents to
accused. He found the same to be correct. Thereafter the accused and
witness signed on each and every page of the confessional statement.
The confessional statement was followed by a certificate in English
language which he signed. (Exh. 413). He further deposes that,
thereafter the confessional statement was forwarded to Chief Judicial
Magistrate, Pune, along with his communication dated 9/12/05 (Exh.
414). He also referred accused to CJM, Pune.
292] In the statement, accused has given his personal
information regarding his family background and occupation. According
to him, in the year 2005, he was doing business of marble fitting. He
was having 2-3 labours. In December 2004 he was one labour namely
Chhotu Ghisaiwala (A 10). He was having mobile. He purchased red
colour Indica car bearing No. GJ-7/R-3315, in 2005, on loan. Chhotu
alias Arvindbhai Patel was driver on said car. On 28/7/05 Chhotu
Ghisaiwala (A 10) met him and they consumed liquor. Then they went
to cart of Dilipbhai and had food. Mean time, Prasad Shetty came
there. They had a talk with him, they told him to bring Indica car and
decided to go for consuming liquor. Then he was going to bring his
Indica car, mean time on the way, his bicycle slipped and he sustained
injury, therefore, he was admitted in the hospital. There, Prasad
Shetty (A 2) and Chhotu Ghisaiwala (A 10) came to meet him and
demanded his car to be used in the crime. But, he was not knowing
what sort of offence, accused wanted to commit. He had given his car
on hire along with driver. He stated that, after three days they have
telephoned him and disclosed him that due to rain, person who was
to be abducted was not found, hence they would come back within a
couple of days. Here again, he has not explained who had given call to
him. Therefore, the said statement is also ambiguous.
293] It is mentioned in the confessional statement of accused
No. 3 that, on 15/8/05, Prasad Shetty (A 2) called him and sought his
help for accommodation for 3-4 days. Thereafter he asked Chhotu
Choudhari (A 4) to make arrangement of stay of Prasad Shetty (A 2)
and others. Accordingly, Chhotu Choudhari (A 4) made arrangement of
their residence in the house of his sister. Then he made arrangement
of accommodation of Prasad Shetty (A 2) at Ataldara area and
obtained one house on rent. He further confessed that, when he went
to the room along with Prasad Shetty (A 2) and Chhotu Choudhari (A 4)
he introduced his friend Nitin Modha and told that he had big hotel at
Pune and also informed that abducted boy is son of friend of Nitin
Modha and he was abducted as his father owes some money to Nitin
Modha and Nitin Modha wanted to recover it. Then on 18/8/05 he was
called on the stall of Dilipbhai and thereafter again he was called by
Nitin at Ataldara, thereafter Nitin Modha asked Chhotu driver to take
cassette wherein voice of Sagar was tape-recorded. Accordingly, Nitin
Modha paid Rs. 2,500/- to Chhotu Choudhari (A 4) and then Chhotu
Choudhari went to Pune. The accused gave entire description of his
meeting with accused Prasad Shetty, Chhotu Ghisaiwala and Nitin
Modha from 16/8/05 to 22/8/05. Even if the said confession is read, at
the most, it can be said that, he had some idea that,boy was abducted
from Pune. But, he was not concerned with the said abduction as well
as demand of ransom. Similarly, he did not provide any help or
assistance to abductors.
294] The confessional statement of Chhotu Choudhari (A 4) was
recorded by Anant Shinde (PW 49). He stated that, on 18/12/05 he
received communication (Exh. 433) from Additional Commissioner of
Police ( Crimes) Pune, to record confessional statement of accused
Chhotu Choudhari (A 4). On the same day, he issued directions for
production of said accused before him on 19/12/05 at 9.30 am.
(Exh.434). Accordingly, on 9/12/05 at about 9.30 am, he was produced
by API Gaikwad and constable Katke. He inquired accused whether he
was willing to give confessional statement, he answered in affirmative.
Witness ascertained that no police officers was present in the vicinity
of his office. On inquiry he told that he was neither pressurized,
threatened nor promised anything to give confessional statement and
he wanted to give statement on his own volition . Upon inquiry, he
stated that he was aware of the fact that he was produced in his office
for recording his confessional statement under the provisions of
MCOC Act. It was also informed to accused that it was not obligatory
on his part to give confessional statement statement or answer his
questions and he understood the same. Chhotu Choudhari (A 4) stated
that he was aware that his confessional statement could be used
against him in the proceedings in the Court of Law. He also told that
he was neither pressurized nor promised anything for giving
confessional statement. He also told that he was neither physically
assaulted nor threatened during police custody. Witness asked him as
to what confession he wanted to give. Over this, accused told that he
wanted to tell in respect of abducting of Sagar Sahani. Thereafter
witness made him aware that he was given time to rethink about his
decision of giving confessional statement and would be produced in
his office on 20/12/05. It was also informed to accused that it was not
obligatory on his part to give confessional statement when he would be
produced on that day. Accordingly preliminary statement of accused
was recorded and his signature was obtained on it (Exh. 412).
295] Thereafter on 20/12/05 accused No. 4 was brought before
him by API Gaikwad at about 4.20 pm. He directed API Gaikwad to
leave his office. At that time, in his office, only his steno Dhanaji
Kamble and accused were present. He inquired with the accused in
Marathi whether the time given to him for rethinking over his decision
to give confession was sufficient, which was answered by accused in
affirmative. On inquiry, he told that he was neither physically tortured
nor threatened or coerced during the said period. Again witness
intimated accused that it was not mandatory for him to give
confessional statement as it could be used against him in the Court of
law. At that time, accused told that he wanted to give confessional
statement on his own accord. He told that he still wanted to make
statement. Upon it, he came to conclusion that accused was willing
to give voluntary confessional statement in respect of abduction of
Sagar Sahani. Accordingly, he recorded his satisfaction in respect of
voluntary nature of confession and commenced recording his
confession. After conclusion of confessional statement he read over
its contents to accused. He found the same to be correct. Thereafter
the accused and witness signed on each and every page of the
confessional statement (Exh. 436). He further deposes that,
thereafter the confessional statement was forwarded to Chief Judicial
Magistrate, Pune, along with his communication dated 21/12/05
(Exh. 437). He also referred accused to CJM, Pune. CJM had verified
the voluntariness of accused and made endorsement.
296] In the statement Chhotu Choudhari (A 4) has given
description of his role in the offence. Similarly, he also explained how
he came in the contact with Prasad Shetty (A 2) , Chhotu Ghisaiwala (A
10) , Nitin Modha and Approver. He also described his trip to Pune,
similarly he described about his help to accused after abduction of
Sagar. He provided food articles to accused thereafter he had carried
cassette to Pune and kept it in Khandoba temple at the instance of
accused. So, it can be said that this accused had knowledge about
the abduction of Sagar for ransom. So, he can be said that he had
taken part in criminal conspiracy for abduction of Sagar.
297] The prosecution has also relied on the confessional
statement of Chhotu Ghisaiwala (A 10). To prove the said statement,
prosecution has examined Shahaji Solanke ( PW 50). He deposes
that, on 25/2/06, he received communication (Exh. 444) from Additional
Commissioner of Police (Crimes) Pune, to record confessional
statement of accused Chhotu Ghisaiwala (A 10). On the same day, he
issued letter for production of said accused before him on 26/2/06 at
11.30 am. (Exh.445). Accordingly, on 26/2/06 at about 11.30 am, he
was produced by PI Rajendra Joshi (PW 54). He inquired accused
whether he was willing to give confessional statement, he answered in
affirmative. Witness ascertained that no police officers was present
in the vicinity of his office. On inquiry accused No. 10 told him that he
is conversant with Gujrathi and Hindi languages. He told his name as
Chotu @ Ravitsingh Savindersing Bhadodria @ Rajput, aged 21 years.
He also told that he was native of village Umredha, Tal. Bah, Dist. Agra,
U.P. He told that he was studied up to 7
th
Std. On inquiry he told that
he can read and write in Hindi and speak Gujrati. Then witness
informed him his name and designation. On inquiry he told that he
was neither pressurized, threatened nor promised anything to give
confessional statement and he wanted to give statement on his own.
Upon inquiry, he stated that he was aware of the fact that he was
produced in his office for recording his confessional statement under
the provisions of MCOC Act. It was also informed to accused that it
was not obligatory on his part to give confessional statement
statement or answer his questions and he understood the same.
Accused stated that he was aware that his confessional statement
could be used against him in the proceedings in the Court of Law. He
also told that he was neither pressurized nor promised anything for
giving confessional statement. He also told that he was neither
physically assaulted nor threatened during police custody. Witness
also verified by removing clothes of accused No. 10 that there were no
marks of injuries on his body. He asked him as to what confession he
wanted to give. Over this, accused told that he wanted to tell in
respect of abduction of Sagar Sahani. Thereafter he made him aware
that he was given time to rethink about his decision of giving
confessional statement and would be produced in his office on 27/2/06.
It was also informed to accused that it was not obligatory on his part to
give confessional statement when he would be produced on that day. It
was recorded in Question and Answer form. Accordingly preliminary
statement of accused was recorded and his signature was obtained
on it (Exh. 448).
298] Thereafter on 27/12/05 accused No. 10 was brought before
him by PSI Pawar at about 4.00 pm. He directed PSI Pawar to leave
his office. Accordingly, he l ft. At that time, in his office, only his
computer operator Shri. Kedari and accused were present. He
ascertained that nobody was present in the vicinity of the said
premises. Thereafter he asked questions to accused No.10 in Hindi
language. Upon inquiry, accused No. 10 told him that reflection time
given to him was sufficient for rethinking over his decision to give
confessional statement. On inquiry, he told that he was neither
tortured nor threatened or physically assaulted during the said period.
Again he intimated accused that it was not mandatory for him to give
statement at freewill on his own accord. He told that he was not
under any pressure for giving the statement. Upon it, he came to
conclusion that accused was willing to give voluntary confessional
statement. Accused informed him that he along with others abducted
Sagar Sahani from Pune and in spite of receipt of amount of ransom, he
was murdered. Accused therefore, told him that he wanted to tell all
the facts in respect of the same including his misdeeds by giving a
voluntary confession with his freewill on his own accord. Accordingly,
he recorded his satisfaction in respect of voluntary nature of confession
and commenced recording his confession. After conclusion of
confessional statement he read over its contents to accused. He found
the same to be correct. Thereafter the accused and witness signed on
each and every page of the confessional statement (Exh. 450). He
further deposes that, thereafter the confessional statement was
forwarded to Chief Judicial Magistrate, Pune, along with his covering
letter dated 27/2/2006 (Exh. 437). He also referred accused to CJM,
Pune. CJM had verified the voluntariness of accused and made
endorsement to that effect.
299] In the confessional statement of Chhotu Ghisaiwala
(Exh.450) has given description of his role in the offence. He stated
that, he was working with Jagmalsing Choudhary (A 3) for polishing
tiles. On 27/7/05, he met Nitin Modha at the stall of Dilipbhai. There he
also met Prasad Shetty (A 2). They all decided to visit Pune.
Accordingly, on 29/7/05 he proceeded to Pune along with Prasad Shetty
(A 2), Nitin Modha ( A 11), Dinesh Tukadia (A 9). He was told that at
Pune, one boy is to be abducted for extracting money from his father.
He went to Hirabag, Surat, along with Nitin Modha. There he met
Approver and Dinesh Tukadia and then all left to Pune in Indica car as
well as Ciena car and on 30/7/05 reached Pune where they stayed in
Kohinoor lodge and then in White-house hotel. On 5/8/05 they
returned to Baroda. At Pune, brother of Nitin used to meet Nitin in
hotel. He further stated that, Nitin Modha, Naran ( Approver ) had
followed the Santro of Sagar in his car but, they could not intercept it
hence returned to Baroda. Thereafter he has given details of events
occurred on 6/8/05 to 11/8/05 and 13/8/05. He stated that on 14/8/05
they proceeded to Pune. On reaching Express Highway, they halted
at petrol pump from where Nitin Modha called his brother Jitu and
asked whereabouts of Sagar. Jitu told that Sagar would leave at about
9 pm. They waited at petrol pump till 7.30 pm and then proceeded
towards Pune. On the way Nitin Modha asked Approver to stop the
car. Then he along with Nitin Modha, Prasad Shetty (A 2) alighted from
Sumo and stopped Santro. They all boarded Santro driven by Sagar.
Approver followed Santro. Then Santro was left at Somtane. Accused
Chhotu Ghisaiwala (A 10) gave description how Sagar was brought in
Sumo and their stay at various places. He also gave description of
events occurred till 24/8/05. He also described how Prasad Shetty (A
2) killed Sagar in Sumo at the instance of Nitin Modha. He stated that,
then Nitin Modha received money and he gave Rs. 50,000/- each to
Approver, Prasad Shetty (A 2) and himself. Then they went to Mathura
and then to Agra. He also visited his native place and stayed there. He
gave Rs. 20,000/- to his mother. He also spent Rs. 5,000/- for
purchasing clothes and for rent and then he went to Delhi, were he
was arrested by police. The statement of Chhotu Ghisaiwala (A 10)
also supports the version given by Approver, Chhotu Choudhari (A 4)
and Nitin Modha (A 11). So, it can be said that this accused had
knowledge about the abduction of Sagar for ransom and also took
active part in the murder of Sagar by holding his legs while Prasad
Shetty (A 2) was cutting his throat.
300] The prosecution has also relied on the confessional
statement of Approver which was recorded by Vitthal Jadhav (PW 47).
He deposes that, on 6/12/05, he received communication from
Additional Commissioner of Police (Crimes) Pune, to record confessional
statement of Approver. On the same day, he issued letter to A.C.P.
Sanjay Jadhav for production of said accused before him on 7/12/05 at
11.00 am. (Exh.417). Accordingly, on 7/12/05 at about 11.30 am,
Approver was produced by PI Rajendra Joshi. He then directed
Rajendra Joshi (PW 54) to leave his office, and he left. He also
ascertained that no other police officer was present near his office. At
that time, only his compute operator Ms. Nartaranan was present in
his office. He inquired accused about the languages he knowing,
Narayan Jameria he knew Gujrathi and Hindi languages. On inquiry
with Narayan Jameria, he told his name as Narayan Govindbhai
Jameria, aged 43 years. He also told that he was native of village
Bhod, Tal. Ranabav, Dist. Porbandar and at the relevant time he was
residing at Narayannagar, Poonagaon, Surat. He told that he was
studied up to 9
th
Std. Then he informed accused his name and
designation. On inquiry he told that he was neither pressurized,
threatened nor promised anything to give confessional statement and
he wanted to give statement on his own. Upon inquiry, he stated that
he was aware of the fact that he was produced in his office for
recording his confessional statement under the provisions of MCOC
Act. It was also informed to accused that it was not obligatory on his
part to give confessional statement statement or answer his questions
and he understood the same. Approver stated that he was aware
that his confessional statement could be used against him in the
proceedings in the Court of Law. He also told that he was neither
pressurized nor promised anything for giving confessional statement.
He also told that he was neither physically assaulted nor threatened
during police custody. Witness also verified by removing clothes of
Narayan Jameria that there were no marks of injuries on his body.
Witness asked him as to what confession he wanted to give. Over this,
accused told that he wanted to tell in respect of abducting and murder
of Sagar Sahani. Thereafter he made Approver aware that he was
given time to rethink about his decision of giving confessional
statement and would be produced in his office on 8/12/05 at 3.00 pm.
It was also informed to accused that it was not obligatory on his part to
give confessional statement when he would be produced on that day. It
was recorded in Question and Answer form. Accordingly preliminary
statement of accused was recorded and his signature was obtained
on it (Exh. 228).
301] Thereafter on 8/12/05 Narayan Jameria was brought before
him by PSI Pawar at about 4.10 pm. He directed PSI Pawar to leave
his office. Accordingly, he left. At that time, in his office, only his
computer operator Ms. Natarajan and accused were present. He
ascertained that nobody was present in the vicinity of the said
premises. Thereafter he asked questions to Narayan Jameria in Hidni
language. Upon inquiry, Narayan Jameria told him that reflection time
given to him was sufficient for rethinking over his decision to give
confessional statement. On inquiry, he told that he was neither
tortured nor threatened or physically assaulted during the said period.
Again he intimated accused that it was not mandatory for him to give
statement on his own volition. He told that he was not under any
pressure for giving the statement. Upon it, he came to conclusion
that accused was willing to give voluntary confessional statement.
Approver informed him that he was ready to disclose everything in
respect of abduction and murder of Sagar Sahani. Accordingly,
witness recorded his satisfaction in respect of voluntary nature of
confession and commenced recording his confession. After conclusion
of confessional statement he read over its contents to accused. He
found the same to be correct. Thereafter the accused and witness
signed on each and every page of the confessional statement
(Exh.229). He further deposes that, thereafter the confessional
statement was forwarded to Chief Judicial Magistrate, Pune, along with
his covering letter dated 8/12/05 (Exh. 418). He also referred accused
to CJM, Pune. CJM had verified the voluntariness of accused and made
endorsement to that effect.
302] The Approver by his oral evidence substantiated his
confessional statement on material particulars. He has described how
he came in contact with accused Nitin Modha, who took him to Pune,
thrice, thereafter how Sagar was tried to abduct and then ultimately he
was abducted and brought to Gujrat at various places and during the
stay, Nitin Modha had contact with many persons on his cell phones.
He has also substantiated that he had talk with Alibhai at Dubai, who
gave him message of payment made by him to Nitin Modha,
accordingly, Nitin Modha received the amount. The documents to that
effect are also produced on record. Thereafter he has given details of
events occurred during incident. He further stated that on 14/8/05
they proceeded to Pune. On reaching Express Highway, they halted
at petrol pump from where Nitin Modha was talking with somebody on
phone. Thereafter we waited at petrol pump till 7.30 pm and then
proceeded towards Pune. On the way Nitin Modha asked him to stop
the car and also stated that one Santro would come, and he would ask
for lift in it. Then he along with Nitin Modha, Prasad Shetty (A 2)
alighted from Sumo and stopped Santro. At that time, Prasad Shetty
(A 2) took out knife from the bag of Nitin Modha and concealed it in his
shirt. Then they all boarded Santro. Then Approver followed that
Santro. Thereafter they left Santro at Somatane. Sagar was asking as
to where they were taking him, over this, Nitin Modha told him that he
has to recover some amount from his father and when he receives
money from his father, he would be released. Thereafter Approver gave
the events in detail as to how Sagar was brought in Sumo and about
their stay at various places. He also described how Prasad Shetty (A
2) cut the throat of Sagar in Sumo on the say of Nitin Modha. He
stated that, then Nitin Modha received money from Bhai at Dubai and
he gave Rs. 50,000/- each to him, Prasad Shetty (A 2) and Chhotu
Ghisaiwala (A 10). Thereafter Nitin Modha demanded Rs. 30,000/-
from Approver, for his expenses at Porbandar and told that after Bhai
from Dubai send him money, he will give that amount to him. Then
Nitin Modha also told him to get back the ornaments pledged with
jeweller by giving amount to him. Then Approver received said
ornaments by paying Rs. 12,500/- to the jeweler. He also gave Rs.
1,000/- to paras towards taxi fare. Then on 30/8/05 Nitin Modha came
to Surat and called him there and took back his ornaments and also
told him to give him Rs. 6,000/- and assured that he would settle his
account after he receives the amount from Bhai at Dubai. Then they
consumed liquor and then Nitin left. Thereafter Approver went to his
village. During that period, Prasad Shetty was threatening him with
dire consequences if he discloses the incident to anybody. Thereafter
on 8/9/05 Approver received phone call of Bhikubhai Thanki (A 5) on
the mobile of his brother and called him at Hirabaug, when Approver
went there, he was arrested by police.
303] The confessional statements of Jagmalsing Choudhary ( A
3), Chhotu Choudhari (A 4), Chhotu Ghisaiwala (A 10) and Nitin Modha
( A 11) have substantiated the evidence of Approver on material
points. It is also established that accused Nitin Modha was constantly in
touch with absconding accused Alibhai at Dubai and he was acting as
per the instructions given by Alibhai for abduction of Sagar as well as
for recovery of ransom amount. Hence, the conclusion can be drawn
that, Nitin Modha (A 11) had hatched criminal conspiracy to abduct
Sagar from Pune and demand of ransom was made from his father.
Ultimately, he succeeded in extracting the money from complainant
Satinder Sahani, but Sagar was killed even after receiving the amount
of ransom. Therefore, the said activities were done for pecuniary gains.
304] Learned advocate Shri. Koshe submits that, provisions of
MCOC Act are not applicable, because no nexus is proved between
absconding accused Alibhai, Vickey and Nitin Modha (A 11). But, I am
not inclined to accept the said submission because, there is ample
evidence on record by way of documentary evidence as well as ocular
evidence of Approver which establishes the nexus between Nitin
Modha and absconding accused Alibhai, who is admittedly, facing
more than one charge-sheets of cognizable in nature, wherein there
are allegations of extortion, demand of ransom as well as murder for
ransom. Therefore, it can be said that absconding accused Alibhai and
Vickey alleged to have been committed offence for his pecuniary gain.
305] The MCOC Act defines continuing unlawful activity, as
organized crime and organized crime syndicate in section 2(d),(e),(f)
respectively, which can be read as under :
Section 2(d) : Continuing unlawful activity means an activity
prohibited by law for the time being in force, which is a cognizable
offence punishable with imprisonment of three years or more,
undertaken either singly or jointly, as a member of an organized crime
syndicate or on behalf of such syndicate in respect of which more
than one charge-sheets have been filed before Hon'ble Apex Court a
within the preceding period of ten years and that Court has taken
cognizance of such offence;
(e) Organised crime means any continuing unlawful activity by
an individual, singly or jointly, either as a member of an organized
crime syndicate or on behalf of such syndicate, by use of violence or
threat of violence or intimidation or coercion, or other unlawful means,
with the objective of gaining pecuniary benefits, or gaining undue
economic or other advantage for himself or any other person or
promoting insurgency;
(f) organized crime syndicate means a group of two or more
persons, who acting either singly or collectively, as a syndicate or
gang indulge in activities of organised crime.
306] Learned advocate Shri. Koshe has relied on the ratio laid
down in the case of Madan s/o Ramkisan Gangwani Vs. State of
Maharashtra, reported in 2009 ALL MR (cri) 1447, wherein the
Hon'ble High Court has given guidelines as to what is required to be
proved by prosecution, as under :

i. an activity,
ii. which is prohibited by law,
iii. which is a cognizable offence punishable with imprisonment
for three years or more,
iv. undertaken either singly or jointly,
v. as a member of organised crime syndicate i.e acting as a
syndicate or a gang, or on behalf of such syndicate,
vi. (a) in respect of similar activities (in the past) more than
one charge-sheets have been filed in competent Court
within the preceding period of ten years,
(b) and the Court has taken cognizance of such offence,
vii. the activity is undertaken by :
(a) violence, or
(b) threat of violence, or intimidation or
(c) coercion or
(d) other unlawful means,
vii. (a) with the object of gaining pecuniary benefits or
gaining undue or other advantage or himself or any other
person, or
(b) with the object of promoting insurgency.
In view of the said provisions, the aim and object of reason for which
MCOC Act is enacted, is as under:
Organized crime has for quite some years now come up as a
very serious threat to our society. It knows no national
boundaries and is fueled by illegal wealth generated by contract
killings, extortion, smuggling in contrabands, illegal trade in
narcotics, abductings for ransom, collection of protection money
and money laundering, etc. the illegal wealth and black money
generated by the organised crime is very huge and has serious
adverse effect on our economy. It is seen that the organized
crime syndicate make a common cause with terrorist gangs and
foster narco terrorism which extend beyond the national
boundaries. There is a reason to believe that organized crime
gangs are operating in the State and thus, there is immediate
need to curb their activities.
It is also noticed that the organized criminals make
extensive use of wire and oral communications in their criminal
activities. The interception of such communications to obtain
evidence of the commission of crimes or to prevent their
commission is an indispensable aid to law enforcement and the
administration of justice.
The existing legal frame i.e the penal and procedural laws
and the adjudicatory system are found to be rather inadequate to
curb or control the menace of organised crime. Government has,
therefore, decided to enact a special law with stringent and
deterrent provisions including in certain circumstances power to
intercept wire, electronic or oral communication to control the
menace of the organised crime.
307] In view of the definition of continuing unlawful activity,
organized crime and crime syndicate, it is to be seen whether accused
had committed organized crime because it is punishable under MCOC
Act. To prove continuing unlawful activities, prosecution has produced
on record, 8 previous charge-sheets filed against absconding accused
Vickey and Alibhai. The offences alleged therein, are punishable with
imprisonment of 3 years or more and cognizance of the same is
already taken by the Court for the said offences. Therefore, prosecution
has proved continuing unlawful activity of Alibhai and Vickey.

308] it appears from the previous charge-sheets filed against
Alibhai and Vickey that, they were committing continuing unlawful
activity jointly, as well as member of organized crime syndicate. It can
also be said that, they were indulging in continuing unlawful activity,
on behalf of crime syndicate by use of violence or threat of violence of
intimidation or coercion with object of gaining pecuniary benefit for
themselves and their associates. It is also proved on record that,
accused Alibhai and Vickey were acting either singly or collectively as a
syndicate or gang and indulging activities of organized crime.
309] I have already observed that the offences levelled against
absconding accused Alibhai and Vickey are in respect of pecuniary
gain. It is proved that Nitin Modha had constant contact with Alibhai
during the course of offence, he received financial aid from Alibhai by
way of money transfer. Therefore, it can be said that Alibhai was having
organized crime syndicate along with his associates. He was acting
along with his associates as a crime syndicate and was indulging in
activities of organized crime. The continuing unlawful activities of
Alibhai and Vickey and others are proved by filing copies of charge-
sheets. The organized crime syndicate of Alibhai and Vickey
committed offences, by use of violence, threat of violence,
intimidation, coercion and other unlawful means, with the objective of
gaining pecuniary benefits or gaining undue economic or other
advantage for himself and others. The said criminal activity was
prohibited by law, which was cognizable offence punishable with more
than three years or more and that had undertaken by jointly, or singly
or as a member of organized crime syndicate and more than one
charge-sheets have been filed before competent Court withing a
period of preceding 10 years. It is established that accused Nitin
Modha was in contact with Alibhai and he acted as per the instructions
of Alibhai for abduction of Sagar as well as demand of ransom from
complainant. Therefore, it can be said that, he conspired with Alibhai to
commit organized crime. Similarly, accused Nos. 2,4,5,6,10 conspired
with accused No.11 to commit abduction of Sagar for ransom. There
was no previous offence pending against these accused persons.
Therefore, it cannot be said that they were indulging in continuing
unlawful activity. But, as I have already observed that 2,4,5,6,10 and
11 conspired with Alibhai and Vickey to commit organized crime.
Hence, offence u/s 3(1)(2) of MCOC Act is proved against them.
210] It is also proved on record that accused Alibhai and Vickey
had organized crime syndicate. They were indulging in continuing
unlawful activity and they were indulging in organized crime. It is
established on record that accused Nos. 2, 4,5,6,10 and 11 were
having criminal conspiracy with Alibhai and Vickey and they were
acting collectively as a syndicate or gang indulging in activities of
organized crime along with absconding accused. Hence, offence u/s
3(4) of MCOC Act is also proved against these accused.

311] Before closing this judgment, I would like to put few words in
this judgment about Approver Narayan Jameria. He was also a party to
the plan engineered for collecting the amount of ransom. But, after
some days, he started repenting and he gave confessional statement
to the Magistrate. Later on he asked for pardon. Approver Narayan
Jameria initially or in the beginning gave nonchalant reaction to the
most heinous act. But, later on gradually crept into arena of timidity. It
is here things like repentance of an acute degree came in to picture,
because Approver was an unperturbed as a sage, even then humanity
sank in shame before him and a young boy Sagar Sahani was brutally
murdered before him. However, later on, time transforms even
mountains, and needless to say that, Approver Narayan Jameria is
only the human being of flesh and blood.
312] The prosecution story appears to be true and the evidence
of the witnesses examined appears to be reliable because there is no
animosity between family of complainant Satinder Sahani and accused.
The accused persons have their hearts of steel and have the audacity
to kill Sagar Sahani who was known to Jitu Modha (A 6) and Nitin
Modha (A 11) and even snatching gold chain and bracelet from the
dead body.
313] So far as the evidence of disappearance of evidence of
offence of murder and disposal of the dead body of Sagar is
concerned, I would like to observe here that even the very young age
of Sagar did not create any compassion with the accused. The hands
of Prasad Shetty (A 2) did not tremble while cutting the throat of
Sagar, thrice.
314] I appreciate the attitude of Approver Narayan Jameria, who
exhibited his repentance. I believe, repentance is indeed a virtue, when
you stand before the Almighty, swear by him and try to ease your
heavy heart, which was not the way God created humans. Our
mythology talks of washing sins and believes it is possible. In my
opinion, repentance is the best form to cleanse your soul which
Approver Narayan Jameria has done.
315] With this discussion, I hold that in this case the prosecution
has proved the offence u/s 120-B, of IPC against accused Nos.
2,4,5,6,10 and 11. The prosecution has also proved offence u/s 364-A
r/w 120-B of IPC against accused Nos. 2,4,5,6,10 and 11. The
prosecution has also proved offence u/s 344 r/w 109 of IPC against
accused Nos. 2,4,5,6,10 and 11.
316] Prosecution has proved offence u/s 302, 201 r/w 120-B,
against accused nos. 2,10 and 11.
317] Prosecution has proved offence u/s 392 and 404 of IPC
against accused No. 11.
318] The prosecution has also proved offence u/s 3(2) and 3(4)
of MCOC Act against accused Nos. 2,4,5,6,10 and 11.
319] . I accordingly hold accused Nos. 2,4,5,6,10 and 11 guilty
for the aforesaid offences and answer the points for determination,
accordingly.
320] Approver Narayan Jameria, however, is entitled to be
discharged because he was tendered pardon.

321] At this stage, I stop my dictation here, to hear the accused
on the point of sentence.

(S.P. Tavade.)
Pune. Special Judge under MCOCA,
Date : 4/12/2012. Pune.
322] The Accused along with their advocates are present before
the Court. I explained them that offence u/s 120-B; 364-A r/w 120-B
and 344 r/w 109 of IPC are proved against accused Nos. 2,4,5,6,10
and 11. I also explained them that offence u/s 302, 201 r/w 120-B
are proved against accused nos. 2,10 and 11 and offences u/s 392
and 404 of IPC against accused No. 11. It is also explained them that
offence u/s 3(2) and 3(4) of MCOC Act against accused Nos.
2,4,5,6,10 and 11.
323] After passing the order of holding the accused persons
guilty, I adjourned the trial for two days, to hear the accused persons
and the learned Special Public Prosecutor for the State, on the point of
sentence.
324] All accused submitted that they are innocent and they were
noway concerned with the crime. Accused No. 4 submits that, his wife,
child and aged mother is dependent on him and he is only bread earner
of his family. Accused no. 5 submits that, wife, 3 children and aged
parents are dependent on him. Accused No. 6 Jitu Modha submits that,
his wife, four children and aged mother is dependent on him. Accused
No. 11 also submits that, his wife, children and aged mother are
dependent on him. Accused Nos. 6 and 11 submitted that there is no
earning member in their family. They have closed their business at
Pune as well as at Porbandar. All accused submitted their written say,
wherein they gave their brief history and claimed innocence.
325] Heard learned advocates for both the parties at length.
Learned advocate Shri. Koshe submits that, on the basis of ratio laid
down in the case of Santoshkumar Satishbhushan Bariyar Vs.
State of Maharashtra, reported in AIR 2010 S.C. ( Supp.) 612,
present case cannot fall in the category of 'rarest of rare' case. In the
said authority, Hon'ble Apex Court has taken stock of all cases wherein
capital punishment was awarded as well as the cases wherein death
sentence was commuted to life imprisonment. He submits that, the
victim was aged about 22 years. The alleged act of accused cannot be
called as brutal or gruesome. There was only one injury on the person
of deceased. So, it cannot be said that his death was barbaric.
326] On the other hand, learned APP Shri. Shah submits that, the
offence was committed with the help of organized crime syndicate. In
spite of receipt of ransom, the victim was killed. The manner and
method of kidnapping, murder and disposal of dead body was most
abhorrent foul and despicable. Hence, the case falls in the category of
'rarest of rare'.
327] Whether case falls within the category of 'rarest of rare'
case or not has to be examined with reference to the facts and
circumstances of each case and on finding the case to be 'rarest of
rare', the Court is justified in awarding death penalty which is on the
Statute Book. As back in the year 1974, the Hon'ble Apex Court in the
matter of Ediga Anamma Vs. State of A.P., reported in AIR 1974
S.C. 799, has observed thus:
deterrence through threat of death may still be a promising
strategy in some frightful areas of murderous crime.
It is further observed that :
Horrendous features of the crime and the hapless and helpless
state of the victim steel the heart of law for the sterner scheme.
328] What is the 'rarest of rare' case is a concept difficult to
define and no straight jacket formula can be applied for enumeration of
'rarest of rare' case. However, the Hon'ble Apex Court in the matter of
Bachan Singh Vs. State of Punjab, reported in AIR 1980 S.C.
898, has laid down the guidelines on this aspect which can be
summarized thus :
(a) The extreme penalty of death may be inflicted in
gravest cases of extreme culpability;
(b) While imposing death sentence the circumstances of
the offender are also require to be taken in to
consideration along with the circumstances of the
crime;
(c) Death sentence be imposed only when life
imprisonment appears to be an altogether inadequate
punishment having regard to the relevant
circumstances of the crime; and
(d) Extreme penalty can be imposed after striking the
balance between aggravating and mitigating
circumstances found in the case.
Aggravating circumstances include :
(a) If the murder has been committed after previous
planning and involves extreme brutality; or
(b) If the murder involves exceptional depravity.
Mitigating circumstances include :
(a) That the offence was committed under the influence of
extreme mental or emotional disturbance,
(b) The age of the accused. If the accused is young or old,
he shall not be sentenced to death,
(c) The probability that the accused would not commit
criminal acts of violence as would constitute a
continuing threat to society,
(d) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that
the accused does not satisfy the conditions (c)and (d)
above,
(e) That in the facts and circumstances of the case the
accused believed that he was more justified in
committing the offence,
(f) That the accused acted under the duress or domination
of another person, and
(g) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.
329] These guidelines were followed in Macchi Singh Vs. State
of Punjab, reported in 1983 S.C. 957 by holding that death
sentence could be imposed only in 'rarest of rare' case when the
collective conscience of the community is so shocked that it would
expect the holders of judicial power to inflict the death penalty
irrespective of their personal opinion as regards the desirability or
otherwise of retaining death penalty as a sentencing option. The
following are the circumstances given by the Hon'ble Apex Court in
the matter of Macchi Singh in which the case can be treated as
'rarest of rare' for imposing capital punishment by entertaining such
sentiment of the community :
(1) When the murder is committed in extremely brutal,
grotesque, diabolical, revolting or dastardly manner so
as to arouse intense and extreme indignation of the
community.
(2) When the murder is committed for a motive which
evinces total depravity and meanness; e.g murder by
hired assassin for money or reward; or cold-blooded
murder for gains of a person vis-a-vis whom the
murderer is in a dominating position or in a position of
trust; or murder is committed in the course for betrayal
of the motherland.
(3) When murder of a member of Scheduled Caste or
minority community etc., is committed not for personal
reason but in circumstances which arouse social wrath;
or in cases of 'bride burning' or 'dowry deaths' or when
murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman
on account of infatuation.
(4) When the crime is enormous in proportion. For instance,
when multiple murders, say of all or almost all the
members of a family or large number of persons of a
particular caste, community, or locality, are committed.

(5) When the victim of murder is an innocent child or a
helpless woman or old or infirm person or a person vis-a-
vis whom the murderer is in a dominating position, or a
public figure generally loved and respected by the
326] As against this, learned Special Public
Prosecutor Shri. V.M. community.
330] Hon'ble Apex Court has, however, cautioned that full
weightage must be accorded to the mitigating circumstances in a case
and a just balance had to be struck between aggravating and
mitigating circumstances.
331] Ratio of the rulings in the matters of Devender personal
and living expenses Singh Vs. State of N.T.C of Delhi, reported
in AIR 2002 S.C. 1661 and Atbir Vs. Govt of NCT of Delhi,
reported in AIR 2010 S.C. 3477=JT 2010 (8) S.C. 372, shows that
death sentence may be warranted when the murder is committed in an
extreme brutal manner or for a motive which evinces total depravity
and meanness. The Hon'ble Apex Court has also held that death
sentence can also be justified when the crime is enormous in
proportion or when the victim of murder is an innocent child or a
helpless woman or old or infirm person or a person whom the
murderer is in a dominating position, or a public figure generally loved
and respected by the community. Thus, the Court is required to follow
the rule of proportionality considering the circumstances of the case
in providing punishment according to the culpability of each kind of
criminal conduct keeping in mind the effect of inadequate punishment
on the society. In the matter of Aqueel Ahmed Vs. State of U.P,
reported in AIR 2009 S.C. 1272. Hon'ble High Court has ruled out
that even in the case of single victim death sentence can be awarded
taking in to consideration the circumstances of the case.
332] At this juncture, it is apt to quote observations of the Hon'ble
Apex Court in Shivaji @ Dadya Alhat Vs. State of Maharashtra ,
reported in AIR 2009 S.C. 56, wherein it is held thus in para 25,
26,30 and 31 :
25: The law regulates social interests, arbitrates conflicting claims
and demands. Security of persons and property of the people is an
essential function of the State. It could be achieved through
instrumentality of criminal law. Undoubtedly, there is a cross-cultural
conflict where living law must find answer to the new challenges and
the courts are required to mould the sentencing system to meet the
challenges. The contagion of lawlessness would undermine social order
and lay it in ruins. Protection of society and stamping out criminal
proclivity must be the object of law which must be achieved by
imposing appropriate sentence. Therefore, law as a corner-stone of the
edifice of 'order' should meet the challenges confronting the society.
Fridman in his 'Law in changing society' stated that State of criminal
law continues to be as it should be a decisive reflection of social
consciousness of society. Therefore, in operating the sentencing
system, law should adopt the corrective machinery or the deterrence
based on factual matrix. By deft modulation sentencing process be
stern where it should be, and tampered with mercy where it warrants
to be. The facts and given circumstances in each case, the nature of
the crime, the manner in which it was planned and committed, the
motive for commission of the crime, the conduct of the accused, the
nature of weapons used and all other attending circumstances are
relevant facts which would enter in to the area of consideration. For
instance, a murder committed due to deep-seated mutual and personal
rivalry may not call for penalty of death. But, an organised crime or
mass murders of innocent people would cal for imposition of death
sentence as deterrence. In Mahesh Vs. State of M.P. Reported in
(1987) 2 SCR 710, this Court while refusing to reduce the death
sentence observed, thus :
It will be a mockery of justice to permit the accused to escape
the extreme penalty of law when faced with such evidence and such
cruel acts. To give the lesser punishment for the accused would be to
render the justicing system of the country suspect. The common man
will lose faith in courts. In such cases, he understands and appreciates
the language of deterrence more than the reformative jargon.
26. Therefore, undue sympathy to impose inadequate sentence
would do more harm to the justice system to undermine the public
confidence in the efficacy of law and society would not long endure
under such serious threats. It is, therefore, the duty of every Court to
award proper sentence having regard to the nature of the offence and
the manner in which it was executed or committed etc. This position
was illuminatingly stated by this Court in Sevaka Perumal Vs. State of
Tamil Nadu (AIR 1991S.C. 1463).
30. In Jatshubha Bharatsinh Gohil Vs. State of Gujarat
(1994 (4) SCC 353), it has been held by this Court that in
the matter of death sentence, the courts are required to
answer new challenges and mould the sentencing system
to meet these challenges. The object should be to protect
the society and to deter the criminal in achieving the
avowed object of law by imposing appropriate sentence. It is
expected that the courts would operate the sentencing
system so as to impose such sentence which reflects the
conscience of the society and the sentencing process has
to be stern where it should be. Even though the principles
were indicated in the background of death sentence and life
sentence, the logic applies to all cases where appropriate
sentence is the issue.
31. Imposition of sentence without considering its effect on the
social order in many cases may be in reality a futile
exercise. The social impact of the crime, e.g where it relates
to offences against women, dacoity, kidnapping,
misappropriation of public money, treason and other
offences involving moral turpitude or moral delinquency
which have great impact on social order, and public interest,
cannot be lost sight of and per se require exemplary
treatment. Any liberal attitude by imposing meager
sentences or taking too sympathetic view merely on account
of lapse of time in respect of such offences will be result-
wise counter- productive in the long run and against social
interest which needs to be cared for and strengthened by
string of deterrence inbuilt in the sentencing system.
333] It is, thus, clear that duty is cast upon the Court to respect
to the society's cry for justice against the criminals by imposing
punishment befitting the crime so that, the courts reflect public
abhorrence of the crime.
334] Now, let us examine whether the case in hand falls under
the category of 'rarest of rare' case and if the answer is in affirmative,
what are the special reasons for awarding death sentence.
335] On going through the evidence on record and submissions
of both the sides, the aggravating circumstances are as under :
1. The abduction and murder of Sagar has been committed
with pre-plan and even after receiving amount of ransom,
Sagar was killed,
2. Accused are members of organized crime syndicate,
3. Deceased Sagar was young boy of 22 years. He did not
provoke the crime and he was helpless victim,
4. Anti-social nature of crime and magnitude of crime on
society,
5. There was no spark of any kindness and compassion in the
mind of accused,
6. Entire incident certainly shocked the collective conscience of
the community.
As against this, the mitigating circumstance brought on record are as
under :
1. Accused nos. 2,4, 6,10 and 11 are young persons,
2. Accused had no criminal background,
3. Accused are illiterate. Accused Nos. 2,4,10 were
unemployed, accused Nos. 5,6,11 were businessmen,
4. There is probability that accused would not commit criminal
acts of violence as would constitute a continuing threat to
society,
5. The accused acted under the domination of another person
who was operating the plan from outside India.
336] On balancing the aggravating and mitigating circumstance,
it appears that, the accused are young persons. They are from middle
and lower strata of society. They abducted young boy Sagar, from rich
family to earn money. No doubt, accused No.11 took help of gangster
from abroad to extract money. But the incident of death of deceased
cannot be called as barbaric or brutal.
337] Learned Special Public Prosecutor Shri. V.M. Shah, for the
State, submitted before me that, these accused persons caused the
death of helpless Sagar Sahani, mercilessly. Therefore, in the case at
hand, he further added that the murder of Sagar is gruesome and it
did cause the death of a young boy to satisfy the greed of money. The
learned Special Public Prosecutor Shri. V.M. Shah, for the State,
therefore, submitted before me that there exists special reasons to call
the present trial as 'rarest of rare' case. He, therefore, strenuously
urged for capital sentence.
338] Whether the case is of 'rarest of rare' i.e., an exceptional
case has to be decided now. How this category has to be searched
has been clearly spelt out in Bachan Singh Vs. State of Punjab,
reported in AIR 1980, Supreme Court, 902 and Machi Singh Vs.
State of Punjab, reported in AIR 1983 Supreme Court, 957. As
per the observations in these decisions of the Hon'ble Apex Court it is
mandatory for the courts to prepare a comparative table of aggravating
and extenuating factors of crime as well as the criminals and then
pass a sentence looking into carefully as to which factor outweighies
the other. If aggravating factors far outweigh the extenuating factors
then only is a sentence of death called for.
339] Every murder is heinous and brutal because it ends in death.
Sagar Sahani was a young boy of 22 years, killed at the hands of
accused by cutting his throat for greed of ransom. He was confined for
12 days at various places in Gujrat. His dead body was thrown in
forest. The dead body was having only one injury. Therefore, it can be
inferred that murder was not committed in extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community. Similarly the motive of the
crime was to earn money. These circumstances alone in my view are
not sufficient to brand the present case as 'rarest of rare' case or an
exceptional case to impose death sentence.

340] Present case is of single murder, where boy was abducted
for ransom and was killed by cutting his neck. The prosecution did not
bring on record any evidence to show that either of these accused
persons have any criminal tendency. There are no convictions recorded
against these accused persons by the competent courts.
341] To repeat again, there is no history that these accused
persons are hardened criminals and are not convicted in the past. It
is, therefore, rightly submitted before me that when Valya may
become Valmiki, why no chance of rehabilitation and improvement be
given to the accused persons by awarding minimum punishment for
the charge of murder. Therefore, I pass the following order.
-O R D E R-
1] The accused No. 2 Prasad Shetty, No. 4 Chhotu Choudhari, No. 5
Bhikubai Thanki, No. 6 Jitendra Modha, No. 10 Chhotu Ghaisaiwala and
accused No. 11 Nitin Modha are hereby convicted u/s 235(2) of
Cr.P.C., of the offence punishable under section 120-B of IPC and
sentenced to suffer imprisonment for life and to pay a fine of Rs.
2,000/- each. In default of payment of fine, they are directed to
undergo further R.I for six months.
2] The accused No. 2 Prasad Shetty, No. 4 Chhotu Choudhari, No.
5, Bhikubai Thanki, No. 6 Jitendra Modha, No. 10 Chhotu Ghaisaiwala
and accused No. 11 Nitin Modha are also convicted u/s 235(2) of
Cr.P.C., of the offence punishable under section 364-A r/w 120-B of
IPC and sentenced to suffer imprisonment for life and to pay a fine
of Rs. 2,000/- each. In default of payment of fine, they are directed to
5 Bhikubai Thanki, No. 6 Jitendra Modha, No. 10 Chhotu Ghaisaiwala
Cr.P.C., of the offence punishable under section 344 r/w 109 of IPC
and sentenced to suffer R.I. for two years and to pay a fine of Rs.
undergo further R.I for three months.
4] The accused No. 2 Prasad Shetty, No. 10 Chhotu Ghaisaiwala
Cr.P.C., of the offence punishable under section 302 of IPC and
sentenced to suffer R.I. for life and to pay a fine of Rs. 2,000/- each.
In default of payment of fine, they are directed to undergo further R.I
for six months.
5] The accused No. 2 Prasad Shetty, No. 10 Chhotu Ghaisaiwala
Cr.P.C., of the offence punishable under section 201 r/w 120-B of IPC
and sentenced to suffer R.I. for 5 years and to pay a fine of Rs.
6] The accused No. 11 Nitin Modha is also convicted u/s 235(2)
of Cr.P.C., of the offence punishable under section 392 of IPC and
sentenced to suffer R.I. for 3 years and to pay a fine of Rs.2,000/-.
for six months.
7] The accused No. 11 Nitin Modha is also convicted u/s 235(2)
of Cr.P.C., of the offence punishable under section 404 of IPC and
sentenced to suffer R.I. for 3 years and to pay a fine of Rs. 2,000/-.
for six months.
and accused No. 11 Nitin Modha are convicted u/s 235(2) of Cr.P.C.,
of the offence punishable under section 3(2) of Maharashtra Control of
Organized Crime Act, 1999, and sentenced to suffer R.I. for 7 years
and to pay a fine of Rs. 5 lacs, each. In default of payment of fine, they
are directed to undergo further R.I for two years.
and accused No. 11 Nitin Modha are convicted u/s 235(2) of Cr.P.C.,
of the offence punishable under section 3(4) of Maharashtra Control of
Organized Crime Act, 1999, and sentenced to suffer R.I. for 7 years
and to pay a fine of Rs. 5 lacs, each. In default of payment of fine, they
are directed to undergo further R.I for two years.

10] All the sentences shall run concurrently.
11] The accused Nos. 2 to 11 are in jail since their arrest till the date.
Accused No. 2 is in jail since 8/9/2005, Accused No. 4 is in jail since
8/9/2005, Accused No. 5 is in jail since 9/9/2005, Accused No. 6 is in
jail since 10/9/2006, Accused No. 10 is in jail since 2/2/2009 and
Accused No. 11 is in jail since 21/7/2006 till the date. Subject to the
provisions of section 433-A of Cr.P.C., they shall be entitled to set off,
as provided u/s 428 of Cr.P.C.
12] The Accused No. 1 is hereby acquitted under Section 235(1) of
Cr. P. C. of the offence punishable under section 3(2) and 3(4) of
Maharashtra Control of Organized Crime Act, 1999.
13] The Accused No. 3 Jagmalsing Choudhary, No. 7 Samantbhai
Gadhvi, No. 8 Ajay Gadhvi and No. 9 Dinesh Tukddia are hereby
acquitted under Section 235(1) of Cr. P. C. of the offences punishable
under sections 344 r/w 109 of IPC and u/s 3(2) and 3(4) of
14] The Accused No. 9 is also hereby acquitted under Section 235(1)
of Cr. P. C. of the offence punishable under section 3(1)(i) of
15] The bail bond of accused No.1 stands cancelled and he is set at
liberty.
16] The accused No. 4 Chhotu Choudhari, Nol. 5 -Bhikubai Thanki and
accused No. 6 Jitendra Modha are hereby acquitted under Section
235(1) of Cr. P. C. of the offence punishable u/s 302, 201 r/w 120-B of
IPC.
17] Approver Narayan Jameria, however, is discharged because he
was tendered pardon.
18] The muddemal property be preserved for the trial of absconding
accused.

19] Certified copy of this judgment be given free-of-costs to accused,
forthwith.

(S.P. Tavade.)
Pune. Special Judge under MCOCA,
Date : 7/12/2012. Pune.


I affirm that the contents of this P.D.F. file Judgment are same word
for word as per original judgment.
Name of steno : Sou. Madhuri Godse,
P.A.
Name of court : Shri. S.P. Tavade,
Spl. Judge, under MCOC Act, Pune.
Date : 7/12/2012.
Judgment signed by Presiding Officer on : 7/12/2012.
Judgment uploaded on : 7/12/2012.

326] As against this, learned Special Public Prosecutor Shri. V.M.

Sagar Sahani Murder Case Pune MCOCA Court Judgement

Încărcat de

Informații document

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Sagar Sahani Murder Case Pune MCOCA Court Judgement

Încărcat de

Drepturi de autor:

Formate disponibile

1 MCOCA Spl. Case No. 1/06.

S-ar putea să vă placă și