# 1' A v. STATE OF MAHARASHTRA

- **Citation:** [2009] 12 S.C.R. 1093
- **Court:** Supreme Court of India
- **Decided:** 2009-08-06
- **Case number:** Criminal Appeal Nos. 85-86 of 2006
- **Bench:** S.B. Sinha, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-a-v-state-of-maharashtra-24989
- **Pages:** 93

## Headnote

Penal Code, 1860/Maharashtra Control of Organized
i>' t
Crime Act, 1999/Arms Act, 1959 - ss. 302, 307, 120-8134,
109, 201134, 411134, 212, 520A, 424, 414 Is. 3 (1), (2) and c
(4) Is. 25 rlw ss. 3 and 7 - Prosecution under- Eye-witnesses
and injured witnesses to the incident -
Confessional
statements made by the accused persons - Identification of
the accused in TIP as well as in the court by eye-witness -
Recovery of weapons of offence -
Trial court acquitting
D
• -+
accused Nos. 2 and 3 and conviction of the rest of the
accused - Accused Nos. 5, 6 and 7 sentenced to death -
High Court convicting accused No. 1 u/s. 3 (2) MCOCA rlw
s. 120-8 /PC and acquitted him u/s. 52A and 120-8 /PC -
Conviction of accused 4, 7 and 8 confirmed - Death sentence
E
of accused No. 7 altered to life imprisonment - Accused Nos.
5 and 6 acquitted of all the charges - On appeal, held:
-"!
Conviction of accused Nos. 1, 4, 7 and 8 confirmed -
Accused Nos. 5 and 6 also liable to be convicted -
Prosecution case proved -
Confessional statements
F
corroborated by the evidence of witnesses, recoveries and
confessional statements of co-accused - Confessional
statements recorded in compliance with the MCOC Act and
Rules - Conviction under MCOC Act can be based solely on
the basis of confessional statement of accused as also on the
F
basis of confessional statement of the co-accused - All the
-f "'
accused sentenced to life imprisonment - In the facts of the
case, capital punishment to accused No. 7 not justified -
Maharashtra Control of Organized Crime Act, 1999 - s. 18 -
1093
H
1094
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A Maharashtra Control of Organized Crime Rules - r. 36 -
Sentence/sentencing - Death sentence.
Sentence/Sentencing - Death sentence - 'Rarest of rare'
rule - Application and nature of - Need to give an objective
8 value to the term 'rarest of rare' - Application of article 14 to
award of death sentence - Constitution of India, 1950 - Article
14.
Appellants-accused were prosecuted under various
provisions of IPC, Maharashtra Control of Organized
C Crime Act, 1999 and also under provisions of Arms Act,
1950. They were alleged to have hatched a conspiracy to
eliminate 'M' and with that common object, they aided
each other for causing the murder. Appellants were said
to be belonging to the gang of fugitive criminal who
D allegedly operated his organized crime activities from
Karachi, Pakistan. He was also aided by another gang
leader. The appellants had been provided with arms and
ammunitions and money by the fugitive criminals.
E
Special court acquitted accused Nos. 2 and 3 while
convicting the six appellants-accused. Accused Nos. 5,
6 and 7 were sentenced to death.
Convicted accused filed appeal before High Court.
Death sentence was also referred to High Court. High
F Court confirmed the conviction of accused No. 1 uls. 3
(2) of MCOCA rlw s. 120-B IPC and acquitted him uls. 212
rlw ss. 52A and 120-B IPC. Conviction of accused Nos.
4, 7 and 8 was confirmed. However, death sentence of
accused No. 7 was substituted to life imprisonment.
G Accused Nos. 5 and 6 were acquitted of all the charges.
t •
Hence the present appeals by the convicted accused and
...
t
H
by State against acquittal of accused No. 1 and acquittal
of accused Nos. 5 and 6 and against substitution of death
sentence to life imprisonment of accused No. 7.
MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1095
MAHARASHTRA
Dismissing the appeal filed by accused Nos. 1, 4 and
A
' !' J-4
8; dismissing State's appeal against accused Nos. 1 and
7; and partly allowing State's appeal against accused
Nos. 5 and 6, the Court
HELD:
B
Per Dr. Mukundakam Sharma, JJ:
1.1. Accused No. 1 is guilty of all the charges which
~· +-
were already found to be proved and established by the
trial court and affirmed by the High Court. The sentence c
passed by the High Court is confirmed and the
punishment awarded by the trial court u/s. 212 rlw
Section 52(A) rlw. Section 120-8 IPC is also restored.
[Para 58] [1148-B]
1

## Text

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[2009) 12 S.C.R. 1093
MOHD. FAROOQ ABDUL GAFUR AND ANOTHER
A
1' A
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 85-86 of 2006)
AUGUST 6, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Penal Code, 1860/Maharashtra Control of Organized
i>' t
Crime Act, 1999/Arms Act, 1959 - ss. 302, 307, 120-8134,
109, 201134, 411134, 212, 520A, 424, 414 Is. 3 (1), (2) and c
(4) Is. 25 rlw ss. 3 and 7 - Prosecution under- Eye-witnesses
and injured witnesses to the incident -
Confessional
statements made by the accused persons - Identification of
the accused in TIP as well as in the court by eye-witness -
Recovery of weapons of offence -
Trial court acquitting
D
• -+
accused Nos. 2 and 3 and conviction of the rest of the
accused - Accused Nos. 5, 6 and 7 sentenced to death -
High Court convicting accused No. 1 u/s. 3 (2) MCOCA rlw
s. 120-8 /PC and acquitted him u/s. 52A and 120-8 /PC -
Conviction of accused 4, 7 and 8 confirmed - Death sentence
E
of accused No. 7 altered to life imprisonment - Accused Nos.
5 and 6 acquitted of all the charges - On appeal, held:
-"!
Conviction of accused Nos. 1, 4, 7 and 8 confirmed -
Accused Nos. 5 and 6 also liable to be convicted -
Prosecution case proved -
Confessional statements
F
corroborated by the evidence of witnesses, recoveries and
confessional statements of co-accused - Confessional
statements recorded in compliance with the MCOC Act and
Rules - Conviction under MCOC Act can be based solely on
the basis of confessional statement of accused as also on the
F
basis of confessional statement of the co-accused - All the
-f "'
accused sentenced to life imprisonment - In the facts of the
case, capital punishment to accused No. 7 not justified -
Maharashtra Control of Organized Crime Act, 1999 - s. 18 -
1093
H
1094
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A Maharashtra Control of Organized Crime Rules - r. 36 -
Sentence/sentencing - Death sentence.
Sentence/Sentencing - Death sentence - 'Rarest of rare'
rule - Application and nature of - Need to give an objective
8 value to the term 'rarest of rare' - Application of article 14 to
award of death sentence - Constitution of India, 1950 - Article
14.
Appellants-accused were prosecuted under various
provisions of IPC, Maharashtra Control of Organized
C Crime Act, 1999 and also under provisions of Arms Act,
1950. They were alleged to have hatched a conspiracy to
eliminate 'M' and with that common object, they aided
each other for causing the murder. Appellants were said
to be belonging to the gang of fugitive criminal who
D allegedly operated his organized crime activities from
Karachi, Pakistan. He was also aided by another gang
leader. The appellants had been provided with arms and
ammunitions and money by the fugitive criminals.
E
Special court acquitted accused Nos. 2 and 3 while
convicting the six appellants-accused. Accused Nos. 5,
6 and 7 were sentenced to death.
Convicted accused filed appeal before High Court.
Death sentence was also referred to High Court. High
F Court confirmed the conviction of accused No. 1 uls. 3
(2) of MCOCA rlw s. 120-B IPC and acquitted him uls. 212
rlw ss. 52A and 120-B IPC. Conviction of accused Nos.
4, 7 and 8 was confirmed. However, death sentence of
accused No. 7 was substituted to life imprisonment.
G Accused Nos. 5 and 6 were acquitted of all the charges.
t •
Hence the present appeals by the convicted accused and
...
t
H
by State against acquittal of accused No. 1 and acquittal
of accused Nos. 5 and 6 and against substitution of death
sentence to life imprisonment of accused No. 7.
MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1095
MAHARASHTRA
Dismissing the appeal filed by accused Nos. 1, 4 and
A
' !' J-4
8; dismissing State's appeal against accused Nos. 1 and
7; and partly allowing State's appeal against accused
Nos. 5 and 6, the Court
HELD:
B
Per Dr. Mukundakam Sharma, JJ:
1.1. Accused No. 1 is guilty of all the charges which
~· +-
were already found to be proved and established by the
trial court and affirmed by the High Court. The sentence c
passed by the High Court is confirmed and the
punishment awarded by the trial court u/s. 212 rlw
Section 52(A) rlw. Section 120-8 IPC is also restored.
[Para 58] [1148-B]
1.2. Conviction under Maharashtra Control of D
....
Organized Crime Act, 1999 could be based solely on the
basis of the confessional statement and such conviction
is also permissible on the basis of the confessional
statement of the co-accused which could be used and
relied upon for the purpose of conviction. [Para 59] [1148E
CJ
....,.
-r
State v. Nalini (1999) 5 SCC 253; Devender Pal Singh
v. State of NCT of Delhi (2002) 5 SCC 234; Jameel Ahmed
v. State of Rajasthan (2003) 9 sec 673, relied on.
F
1.3. Though it is proved and established from the
records that accused No. 1 did not himself participate in
.. ,-
the actual shootout, it is alleged against him that he was
a part of the gang and he was in touch with the gang
G
leaders in Karachi (Pakistan) and he also acted on behalf
---i
~
of the said gang so much so that he had effected
payment of money arranged by the leaders of the gang
to accused Nos. 5, 6, and 8 for causing the shootout. The
evidence placed before this court clearly establishes that
H
accused No. 1 was responsible for procuring a pistol and
1096
SUPREME COURT REPOR~S [2009] 12 S.C.R.
A handing over the same to accused No. 5 which was used
in the shootout. The said fact is also established and
"'-.
proved by the confessional statement of accused No. 5.
[Paras 47 and 48] [1142-B-F]
1.4. The confessional statement of accused No. 1
B substantially complies with the requirements of Section
18 of Maharashtra Control of Organized Crime Act, 1999
(MCOCA) r/w. rule 3 (6) of Maharashtra Control of
Organized Crime Rules (MCOC Rules). It was a
categorical case of the prosecution that PW-51 who
C recorded the said confessional statement was never
involved with the investigation of the case. On going
through all the material available on record, the High
Court came to the categorical finding that the aforesaid
confessional statement was made voluntarily and while
D recording the same, post confessional formalities were
followed. It was held by the High Court that although the
confessional statement does not bear any certificate in
the identical terms as specified under Rule 3(6) of the
MCOC Rules, it nevertheless complies with the
E requirements of Section 18 MACOCA. Apart from that,
there is ·also evidence on record indicating that accused
No. 1 made several phone calls to gang leaders in
Pakistan from various phone booths. The said fact is also
accepted by the trial court as well as by the High Court.
F [Paras 51 and 52] [1145-E-H; 1146-A-C]
1.5. The confessional statement of accused No. 8
was held to be admissible by both the courts below in
which he had categorically stated that he knew accused
G No. 1 from childhood and that accused No. 1 had brought
him to act as a driver in the said shootout and also paid
him Rs. 10,000/- for the job. Accused No. 8 in his
confessional statement had also stated that accused No.
5 visited accused No. 1. The confessional statements of
H
t
+
.......
MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1097
MAHARASHTRA
accused No. 5 and 6 are also relevant to prove and
A
establish the involvement of accused No. 1 with the
incirf,:-.-,t. [Paras 53 and 54] [1146-D-E]
1.6. The High Court while disbelieving the
confessional statements of PWs 5 and 6, ignored the fact 8
that there is evidence of PW-64, the typist who had
deposed that the preliminary warning was in fact given
which was so recorded. Considering the facts and
circumstances of the case, there is no reason, not to
accept the said statement of PW-64, the typist. The
aforesaid confessional statement of the co-accused C
cou_ld be the basis of conviction under the provisions of
MCOCA. [Paras 56 and 57] [1147-E-G-H; 1148-A]
1.7. There is also evidence of other witnesses namely
PW-21, owner of an STD booth. He stated that accused
D
No. 1 made a phone call to a specific number in Karachi
(Pakistan). PW-35, who is the owner of another phone
booth stated that he personally knew accused No. 1. He
deposed that accused No. 1 would come to his booth
regularly to make phone calls to Pakistan. PW-37, who
E
was another witness stated in his evidence that accused
No. 1 had made calls on specified numbers in Pakistan
on certain dates. Evidence of PW-37 is also found to be
corroborated by the evidence of PW-54. Similar is the
evidence of PW-43 who deposed that calls were made by
F
accused No. 1 to Pakistan. [Para 55] [1147-B-D]
2.1. There is no reason to interfere with the findings
recorded by the High Court so far as involvement of
accused No. 4 in the incident is concerned. There are
cogent and convincing evidence available against him to
G
prove and establish his involvement in the entire incident
which justifies his convictions and sentences on each
count. The High Court rightly held that accused No. 4 had
played an active and important role in the conspiracy
H
1098
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A even though he did not participate in the actual shoot out
and that he had the knowledge of the conspiracy. [Para
)'.. ~
71] [1159-D-G]
..
2.2. Accused No. 4 he was an active member of the
B gang who actively participated in the activities of the
organized crime syndicate which fact is corroborated by
his confessional statement. [Para 65] [1157-D]
2.3. The confessional statement of accused No. 4 is
trustworthy and reliable. It is evidently clear from the
t
~
c records that his confessional statement was found to be
in substantial compliance with the requirements of
Section 18 of MCOCA. The High Court came to the
categorical finding that post confessional formalities
have been followed and although the confessional
D statement does not bear a certificate in the identical terms
as specified under Rule 3(6) of the MCOC Rules, there is
, .
nevertheless compliance of Section 18 of MCOCA. There
is no plausible ground to discard the view taken by the
High Court in this regard. [Para 66] [1157-E-H]
E
2.4. The confessional statement is supported by the
deposition of PW-53, who deposed that accused No. 4
led the police to the place from where he had bought six
I-
'
or seven mobile phones. The aforesaid confessional
F statement is also supported by the evidence of the
Manager of a Petrol Pump, who corroborated the fact that
the aforesaid Maruti car was brought by accused No. 4
to his petrol pump for repairs and servicing. Further, the
evidence of PW-20, a pancha witness, whose name was
kept secret, establishes and proves that accused No. 4
.
;
G led the police to the said petrol pump. Accused No. 4 also
led the police to Motor Training School wherefrom he
!-
..
obtained a duplicate driving license in the name in his
brother. The evidence of PW-15 the real owner of the
Maruti Car, proves that the car was stolen and that he had
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1099
MAHARASHTRA
Ii<
lodged a complaint to that effect. Another witness
A
_,..
deposed about the seizure of the aforesaid Maruti car
clearly throws light on the fact that accused No. 4 was
using the stolen car. Confessional statement of a
accused No. 7, which was found to be admissible in
evidence by the trial court as well as the High Court, also
B
corroborates and supports the facts admitted by
accused No. 4 in his confessional statement with regard
to his (accused No. 4's) role. It is clear that accused No.
" .,...
4 had heard the conversation prior to the shootout and
thus had the knowledge about the conspiracy. [Paras 68 c
and 69] [1158-C-H; 1159-A-B]
2.5. PW-18, who was an eye-witness to the incident
described in detail what he saw on the day of the
incident. He deposed that he had seen accused No. 4
D
,. ""1"
along with accused Nos. 5, 6 and 7. Later he identified
him during TIP. Apart from him, accused No. 4 was also
'
identified by PW-2, PW-3, PW-12, PW-13, PW-22 and PW30 in the TIP. [Para 70] [1159-C]
3.1. Order of acquittal passed by the High Court in
E
respect of accused Nos; 5 and 6 is liable to be set aside
1'
in the appeal filed by the State of Maharashtra. Both the
accused persons are convicted for the charges as
alleged against them and sentenced to undergo rigorous
imprisonment for life. [Para 90] [1169-E]
F
3.2. The evidence of PW-18 who was an eye-witness
of the incident is credible and trustworthy as he
_,,-•
described the incident as well as the assailants in detail.
Furthermore, he identified the accused persons i.e.
G
'
-I
accused Nos. 4 to 7 in the court as well as during the TIP.
His evidence has been found to be trustworthy and
reliable by both the courts below. [Para 75] [1161-A-B]
3.3. The High Court held that TIP with respect to
H
1100
SUPREME COURT Rl~PORTS [2009J 12 S.C.R.
A Accused Nos. 5 and 6 was vitiated because accused No.
5 had a squint in the right eye and the dummies used in
the TIP did not have the similar squint in the right eye.
But, the High Court did not make it clear as to why the
identification of accused No. 6 was also vitiated. Accused
B Nos. 5 and 6 were also identified by ten witnesses.
Therefore, the TIP is a reliable piece of evidence as the
same proves the identity of accused persons beyond
reasonable doubt. [Para 75] [1161-B-C]
3.4. It cannot be said that there was inordinate delay
C in conducting the TIP in view of the fact that TIP was
conducted only after a period of 45 days which is not
such a long period to cast any doubt over the evidentiary
value of the TIP. Even otherwise, a TIP does not
constitute substantive evidence but can only be used for
D corroboration of the statement in court. It is primarily
meant for the purpose of helping the investigating
agency with an assurance that their progress with the
investigation is proceeding on the right lines. The
substantive evidence is the evidence of identification in
E court, which in the present case has been done by PW18. [Para 76) [1161-0-G]
F
Amitsingh Bhikamsingh Thakur v. State of Maharashtra
(2007) 2 sec 310, relied on.
3.5. The plea that the photograph of accused No. 5
was published in an Urdu Daily thereby making the
identity of accused No. 5 public also does not find favour
in view of the fact that the witnesses are Maharashtrians
and, therefore, there is no likelihood of their reading the
G paper and seeing the photograph of accused No. 5. [Para
77] [1163-G-H; 1164-A]
H
3.6. The evidence of another eye-witness PW-13, a
student who was a by-stander, was not believed by the
MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1101
MAHARASHTRA
High Court on the premise that he did not disclose the
A
)>
,.,
incident to anybody for four days. His evidence ought to
have been relied upon by the High Court as he clearly
stated in his evidence that though he did not see the
faces of the assailants, he saw the face of accused No.
8. He stated that PW 3 chased the car with a rifle. He also
B
noted the number of the car. His statement gets support
from the evidence of PW-3, who was an eye-witness of
the incident and from the evidence of PW-30, who was
, .. -.-
an injured witness of the incident. Therefore, it would not
be proper and justified to discard his evidence only c
because he did not state about the incident to anyone for
four days. Since his evidence is corroborated and
supported by other material evidence on record '1he same
'
cannot be discarded only because of the aforesaid
reason. [Para 78) (1164-A-E]
D
.
--;.-
3.7. The injured witnesses as well as the other eyewitnesses have no reason to falsely depose against the
accused persons as it was not shown that they had either
any prior enmity with the accused persons or they are
interested parties. In fact, they are the victims of the
E
horrendous and ghastly attack made by the perpetrators.
....
[Para 79) (1164-H; 1165-A)
3.8. PW-2 and PW-3, who were the bodyguards of the
intended target, were eye-witnesses of the incident. Their
F
statements are corroborated by the evidence of PW-30.
Their Statements are also supported by the evidence of
another eye-witness PW-13. Both of them were the
persons who actually witnessed the shootout and were
present at the site of the shootout. Furthermore, both of G
~
-4
them have given a description of the physical features of
the assailants including Accused Nos. 5 and 6. Therefore,
the High Court ought to have relied upon the evidence
of PWs-2 and 3 in the light of the circumstantial evidence
brought on record. The trial court rightly found the
H
1102
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A evidence of PW-2 and 3 trustworthy and reliable as both
of them have the best available opportunity to see the
assailants. [Para 80) [1165-8-F]
3.9. On an analysis·of the confessional statement of
8 accused No. 5 it is found that he has made a detailed
statement of the instructions he received from the
leaders of the gang to kill the intended target and has
stated the involvement of accused Nos. 1, 6, 7 and 8 in
the shootout. [Para 81) [1165-G-H; 1166-A]
C
3.10. Accused No. 6 stated about his earlier
involvement in murder cases in his confessional
statement. He also stated as to how he met accused No.
5 and that accused No. 5 introduced him to the gang.
Confessionat statement of accused No. 6 is found to be
D almost identical to the confessional statement of accused
* .
No. 5. [Para 82] [1166-C]
~ ·
3.11. On analysis of the material on record and. the
confessional statements of accused Nos. 5 and 6, it is
E found that although the fact that the pre-confessional
statements were recorded on 23.07, 1999 is not traceable,
the fact that they were actually recorded is corroborated
by the evidence of PW-64, the typist who had deposed
that the preliminary statements were recorded on
23.07.1999. Thereafter, they were given a period of
F reflection for 48 hours which is corroborated by PW-60,
PW-63 and PW-64. Therefore, there can be no doubt that
the accused were sufficiently warned in advance about
the consequences of their confessions. The High Court
altogether failed to take into account the evidence of PWG 64, the typist. The trial court has rightly held that all the
requirements u/s. 18 (3) of MCOCA were fully complied
.._
-
with while recording the confessional statements. [Para
84) [1166-F-H; 1167-A]
H
MOHD. FAROOQ ABDUL GAFUR v. STATE· OF
1103
MAHARASHTRA
3.12. Accused Nos. 7 and 8 also described the
A
involvement of accused Nos. 5 and 6 in the shootout in
their respective confessional statements. The
confessional statements are consistent with the
confessional statements of accused Nos. 5 and 6. [Para
84] [1167 -8-C]
B
Jaywant Dattatray v. State of Maharashtra (2001) 10
sec 109, relied on.
3.13. The reasoning of the High Court that the
confessional statements of the co-accused are not C
admissible in evidence because Section 313 CrPC had
not been complied with, is not tenable as there is a nonobstante clause in Section 18 (3) which precludes the
application of CrPC and, therefore, the evidence of a coaccused is admissible as a piece of substantive D
evidence. [Para 85] [1167-D]
State vs. Nafini (1999) 5 SCC 253, relied on.
3.14. The report of the ballistic expert shows that the
weapon and bullets tally with each other and, therefore,
E
the court comes to a clear conclusion that the weapon
was used in firing during the shootout. Moreover, there
is a clear finding of fact by both the courts below that the
9 mm pistol was recovered at the instance of accused No.
5 from his hut. Therefore, this recovery of weapon clearly
F
proves and establishes the guilt of accused No. 5. [Para
86] [1167-E-G]
3.15. It is clear from the material on record that
accused No. 5 made certain telephone calls to gang
G
leaders in Karachi, Pakistan. This fact gets corroboration
from the discovery of 3 telephone booths at the instance
of accused No. 5 wherefrom telephone calls were made
by him to the gang leaders. This evidence gets further
H
1104
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A corroboration from the evidence of the owners of the
telephone booths. Therefore, the view taken by the High
~ .
Court with respect to accused No. 5 is not a plausible
view as the same is in contradistinction of the view taken
by the High Court with regard to other accused persons.
•
B [Para 87] [1167-H; 1168-A-E]
3.16. The High Court erroneously held that
conviction u/s. 27(3) rlw Section 7 of the Arms Act could
not be sustained although a 9 mm pistol was recovered
* .
c at the instance of accused No. 5 and it is proved that
accused No. 5 had used the pistol. Further, the report of
the. ballistic expert establishes and proves that the
weapon and the bullets tally each other. The ballistic
expert also opined in the report that one of the victims
of the shootout was killed due to a bullet from a 9 mm
D pistol. Apart from the report of ballistic expert there is
medical evidence available on the record which show
.; '
that the death of the three deceased persons was caused
by the injuries sustained due to fire arms during the
shootout and, therefore, it can be inferred that the weapon
E was used in the shootout. Accused No. 6 had also used
the pistols and fired during the shootout. [Para 88] [1168F-H; 1169-A]
,.
3.17. The finding of the High Court that the sanction
F order u/s. 39 of the Arms Act suffered from nonapplication of mind is not sustainable in view of the
material available on record. The sanction order in the
present case is a detailed one and displays proper
application of mind. [1169-B]
G
Gunvantlal v. State of M. P. (1972) 2 SCC 194, relied
/-'
..,
on.
4.1. Even though Accused No. 8 has not fired any
shot and he was not carrying any arms with him but he
H
·- y
·'
I
- MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1105
MAHARASHTRA
played an active role in the crime and his participation in
A
the crime was significant. He was the person who took
the assailants to the place of incident by driving the
stolen Maruti car and he received the money for driving
the car which fact was admitted by him in his
confessional statement. It is also clear from the records
B
that he was an active member of the gang and was
involved in the criminal activities of the organized crime
syndicate run by the gang leaders. Therefore, the order
of conviction and sentence passed by the High Court
against him is upheld. The sentence of imprisonment of c
life is maintained on the same ground. [Paras 98 and 99)
[1172-C-D; 1173-B]
4.2. The confessional statement of accused No. 8
was recorded under Section 18 of MCOCA. The statement
is found to be admissible in evidence and relied upon by
D
both the courts below having been found to be recorded
in compliance with Section 18 of MCOCA. The statement
has given a detailed account of the incident and the
modus operandi of the accused persons. He has given
complete description of the role played by Accused Nos.
E
5, s· and 7 in the shootout. [Para 95) [1171-8-C]
4.3. The confessional statement of accused No. 8 is
supported by the confessional statements of the coaccused namely, accused Nos. 5, 6 and 7. The
F
confessional statement of accused No. 7 which is found
to be admissible in evidence and relied upon by both the
courts below clearly establishes the role played by
Accused No. 8. The role played by accused No. 8 is also
proved and established from the evidence of PW-22, who G
has given a sufficiently detailed account of what he saw
on the day when the car was abandoned. He identified
accused No. 8 in the TIP. Accused No. 8 was also
identified by PW-13, an eye-witness to the crime. The High
H
1106
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A Court found the testimony of PW-22 as truthful and
trustworthy. [Para 96) [1171-E-G]
4.4. Evidence of PW-54, and PW-31, pancha witness
proves that accused No. 8 led the police to the palce
8 where his parents were also present and he took out two
number plates of the car from the place which was used
in the shootout wrapped in a paper underneath a wooden
bench. [Para 97) [1171-H; 1172-A-8]
5. Considering the entire facts and circumstances of
C the case and the evidence placed on record against
accused No. 7, it is found that capital punishment in the
instant case would not be justified and, therefore, the
appeal of the State so far the issue with regard to
alteration of the sentence of imprisonment of life to that
D of capital punishment is dismissed. [Para 91) [1170-8-C]
PER S.8. SINHA, J. (Supplementing)
1. The review courts are supposed to assess the
findings emerging from the pre-sentencing hearing at the
E trial stage as also other available material and then arrive
at conclusion of its· own on the propriety of sentence.
Apex Court as the final reviewing authority has a far more
serious and intensive duty to discharge. The court not
only has to ensure that award of death penalty does not
F become a perfunctory exercise of discretion u/s. 302 IPC
after an ostensible consideration of rarest of rare doctrine,
but also that the decision making process survives the
special rigors of procedural justice applicable in this
G
H
regard. [Para 6] [1174-H; 1175-A-C]
Bachan Singh v. State of Punjab 1980 (2) SCC 684;
Santosh Kumar Satishbhushan Bariya v. State of
Maharashtra 2009 (7) SCALE 341, relied on.
2. Administration of death penalty is carried out in
+ •
MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1107
MAHARASHTRA
the intensive gaze of Article 14 and Article 21
A
requirements of the Constitution of India. Article 14
applies to judicial process including exercise of judicial
discretion as it applies to the executive process. The
nature of Article 14 application in this case will be on a
different plane altogether and an objective analysis on
B
that count would have to meet the Ceteris paribus (with
other things the same) requirement. [Para 6 and 7) [1175D; 1176-A-B]
Aloke Nath Dutt and Ors. vs. State of West Bengal 2006
(13) SCALE467; Swamy Shraddananda @ Murli Manohar C
Mishra v. State of Kamataka 2008 (10) SC.ALE 669, referred
to.
3. Rule based judging norms and sound rules of
prudence are the only guarantee to fair and equitable
D
sentencing. This emerges from the constitutional context
to the administration of capital sentencing problem as
also a closer reading of rarest of rare test. The
assessment of "rarest of the rare case" is incomplete
without coming to the conclusion that the "the lesser
E
alternative is unquestionably foreclosed' and procedural
fairness and justice concerns form part of the latter
condition. [Para 8) [1176-D-F]
4. The selection of life imprisonment as a lesser
alternative can not be deemed to be "unquestionably
F
foreclosed" till the time objective fairness standards as
to the sentencing process are attained with regard to
capital sentence. Capital Sentencing is not a normal
penalty discharging the social function of punishment. In
this particular punishment, there is heavy burden on
G
court to meet the procedural justice requirements, both
emerging from the black letter law as also conventions.
In terms of rule of prudence and from the point of view
of principle, a court may choose to give primacy to life
imprisonment over death penalty in cases which are
H
1108
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A solely based on circumstantial evidence or where High
Court has given a life imprisonment or acquittal. [Para 9
and 11] [1176-F-G; 1178-D-E]
State of Maharashtra v. Suresh 2000 (1) SCC 471,
8 referred to.
5. In the light of serious objections to disparity in
sentencing by this court flowing out of varied
interpretations to the rarest of rare expression, it is clear
that the test has to be more than what a particular judge
C locates as rarest of rare in his personal consideration.
There has to be an objective value to the term rarest of
rare, otherwise it will fall foul of Article 14. In such a
scenario, a robust approach to arrive at rarest of rare
situations will give primacy to what can be called the
D consensus approach to the test. In the tiered court
system, an attempt towards deciphering a common view
as to what can be called to be the rarest of rare, vertically
across the trial court, High Court and apex court and
horizontally across a bench at any particular level, will
E introduce some objectivity to the precedent on death
penalty which is crumbling down under the weight of
disparate interpretations. This is only a rule of prudence
and as such there is no statutory provision to this effect.
[Paras 12 and 13] [1178-F-H; 1179-B]
F
Suthendraraja alias Suthenthira Raja alias Santhan and
Ors. v. State AIR 1999 SC 3700; Devender Pal Singh v. State
N.C. T. of Delhi and Anr. 2002 (5) SCC 234; Ucchamadevi
v. State of Rajasthan AIR 1988 SC 1785; State of
Maharashtra v. Suresh 2000 (1) SCC 471; State of U.P. v.
G Babu Ram 2000 (4) SCC 515; State of Maharashtra v. Damu
s/o Gopinath Shinde and Ors. 2000 (6) SCC 269; State of
Maharashtra v. Bharat Fakira Dhiwar AIR 2002 SC 16; State
of Rajasthan v. Kheraj Ram 2003 (8) SCC 224; Devender
Pal Singh v. State, N. C. T. Of Delhi and Anr. AIR 2003 SC
H
>-
-
MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1109
MAHARASHTRA
886 and State of UP. v. Satish AIR 2005 SC 1000, referred
A
... ,,..
to.
6. Swinging fortunes of the accused on the issue of
determination of guilt and sentence at the hand of
criminal justice system is something which is perplexing
B
for the Court when it comes to fair trial. The situation is
accentuated due to the inherent imperfections of the
system in terms of delay, mounting cost of litigation in
<I
-+
High Courts and apex court, legal aid and access to
courts and inarticulate information on socio-economic c
and criminological context of crimes. In such a context,
some of the leading commentators on death penalty hold
.
.
.
the view that it is invariably the marginalized and destitute
who suffer the extreme penalty ultimately. [Para 18] [1181D-E]
D
~· '!
State of Haryana v. Sher Singh and Ors. 1981 (2) SCC
300; State of U.P. v. Hakim Singh and Ors. AIR 1980 SC
184; Gumam Kaur v. Bakshish Singh and Ors. AIR 1981 SC
631; State of Uttar Pradesh v. Sahai and Ors. 1982 (1) SCC
352; State of Uttar Pradesh v. Suresh alias Chhavan and Ors.
E
1981 (3) sec 635, relied on .
..
Amnesty International report titled " Lethan Lottery: The
Death Penalty in India - A Study of Supreme Court
Judgments in Death Penalty Cases 1950-2006.
F
7. One of the accused in the instant case was\
acquitted in December 2003 by the High Court. It has
been more than 8 years since he was freed in relation to
the matter at hand. At this juncture, this becomes a
relevant factor. [Para 19] [1181-F-G]
G
~
State of Maharashtra v. Mang/ya Dhavu Kongil AIR 1972
SC 1797; State of Uttar Pradesh v. Sughar Singh and Ors.
AIR 1978 SC 19, relied on.
8. The alleged criminal history of the accused had a
H
1110
SUPREME COURT REPORTS
(2009) 12 S.C.R.
A mojor bearing on the imposition of the death sentence by
the trial court on the three accused. This is why he had
erred in this respect. Nothing has been brought on behalf
of the State that the criminal trials that had been pending
against the accused had resulted in their conviction.
B Unless the same is shown by documents on records,
presumption would be to the contrary. Presumption of
innocence is a human right. The trial judge should also
have presumed the same against all the three accused.
The trial court has brought on record various irrelevant
c and invidious considerations with respect to sentencing.
[Paras 26, 27 and 28] [1184-A-E]
9. The High Court had acquitted both accused 5 and
6. If at least one of the courts below had acquitted the
accused person in respect of the crimes for which they
D are to be sentenced, the burden on the prosecution
would be even more heavier, which the State has not
been able to discharge. [Para 29] [1184-G-H]
10. If a person sentenced to imprisonment, even if it
E be for life, and subsequently it is found that he was
innocent and was wrongly convicted he can be set free.
Such a reversal is not possible where a person has been
wrongly convicted and sentenced to death. The
execution of the sentence of death in such cases makes
F miscarriage of justice irrevocable. It is a finality which
cannot be corrected. [Para 30] [1185-A-B]
11. Once accused 5 and 6 have been sentenced to
life, there remains no question of awarding a death
sentence to accused 7, who had played no greater a role
G in the said incident as accused 5, and 6. All the three
accused stand on ail equal footing and therefore the
;..
sentences to be imposed upon them must not differ. [Para
31) [1185-C-D]
H
MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1111
MAHARASHTRA
State of Punjab v. Manjit Singh and Ors. 2009 (8) SCALE
A
'---!
,.ii(
622; Rameshbhai Chandubhai Rathod v. State of Gujarat
2009 (6) SCALE 469 referred to.
Case Law Reference:
Judgment of Mukundakam Sharma, J.:
B
(1999) 5 sec 253
Relied on.
Paras
59 and 85
.. i
(2002) 5 sec 234
Relied on.
Para 60
(2003) 9 sec 673
Relied on.
c
Para 61
(2007) 2 sec 310
Relied on.
Para 76
(2001) 10 sec 109
Relied on.
Para 84
(1972) 2 sec 194
Relied on.
Para 89
D
. )
Judgment of S.B. Sinha, J.:
1980 (2) sec 684
Relied on.
Para 6
Referred to.
Para 10
E
2009 (7) SCALE 341
Relied on.
Para 6
¥
Referred to.
Para 10
2006 (13) SCALE 467
Referred to.
Para 7
2008 (10) SCALE 669
Referred to.
Para 7
F
2000 (1) sec 411
Referred to.
Para 9
AIR 1999 SC 3700
Referred to.
Para 13
2002 (5) sec 234
Referred to.
Para 14
G
.
~
AIR 1988 SC 1785
Referred to.
Para 15
2000 (1) sec 471
Referred to.
Para 16
2000 (4) sec 515
Referred to.
Para 16
H
1112
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A
2000 (6) sec 269
Referred to.
Para 16
-,. ,..
AIR 2002 SC 16
Referred to.
Para 16
2003 (8) sec 224
Referred to.
Para 16
B
AIR 2003 SC 886
Referred to.
Para 16
AIR 2005 SC 1000
Referred to.
Para 16
AIR 1972 SC 1797
Relied on.
Para 19
AIR 1978 SC 191
Relied on.
Para 20
f
..
c
1981 (2) sec 300
Relied on.
Para 20
AIR 1980 SC 184
Relied on.
Para 20
AIR 1981 SC 631
Relied on.
Para 20
D
1982 (1) sec 352
Relied on.
Para 20
'{ '
1981 (3) sec 635
Relied on.
Para 20
2009 (8) SCALE 622
Referred to.
Para 21
E
2009 (6) SCALE 469
Referred to.
Para 22
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 85-86 of 2006.
·~
From the Judgment & Order dated 17.12.2003 of the High
F Court of Judicature at Bombay in Criminal Appeal Nos. 679 &
758 of 2000.
WITH
CRIMINAL APPEAL NOS. 87 of 2006.
-
G
WITH
f' -
CRIMINAL APPEAL NOS. 91-94 of 2006.
H
Zafar Sadique, Asghar Khan, Balraj Dewan, Vivekanand
MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1113
MAHARASHTRA
Rana for the Appellants.
A
~ ,.,
Madhuri Divan, Ravindra Keshavrao Adsure, Dr. Rajeev
B. Masoodkar (A.C.), K.M.M. Khan N.R. Ramkumar, Varinder
Kumar Sharma for the Respondent.
The Judgment of the Court was delivered by
B
DR. MUKUNDAKAM SHARMA J. 1. These appeals are
filed against a common judgment and order dated 17th
" i
December, 2003 passed by a Division Bench of the High Court
of Judicature at Bombay in Confirmation Case No. 01 of 2001 c
and Criminal Appeal Nos. 661 of 2000; 679 of 2000; 753 of
2000 and 758 of 2000 and are being disposed of by this
common judgment.
2. The prosecution case in brief is as follows: -
D
• 'f
One Milind Vaidya is the ex-Mayor of Mumbai. He belongs
to the Shiv Sena, a political party, active in Maharashtra. On
4th March, 1999 at about 9.45 p.m. he alongwith 7-8 workers
were sitting in an open shed by the side of Mori Road. He was
guarded by his two body guards, namely, Constable Dinanath
E
Pawar (PW-2) and Constable Sandeep Eaghmare (PW-3).
¥
They were armed with a 9 mm pistol and 9 mm carbine with
90 rounds respectively. The said shed house is an office of Shiv
Sena 'Shakha'. At about 5 minutes past 10.00 p.m. a white
Maruti car with a number plate MH-03-H-1749 came from the
F
side of Mahim Railway Station. When it reached near the said
open shed three persons started firing at Milind Vaidya and
others who were sitting in the shed. One of the assailants was
--
sitting alongside the driver on the front seat and the other two
were sitting at the back seat. . In the aforesaid incident three
G
~
persons died while seven to eight persons, including Shri
Milind Vaidya, injured.
3. The said Maruti car was being driven allegedly by Abdul
Hasan (Accused No.8) and Azzizuddin (Accused No.7) was
H
sitting by his side being armed with a AK-56 rifle. Mohd. Zuber
1114
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A (Accused No.5) and Fazal Mohd. (Accused No.6) were sitting
on the rear side of the said car and were armed with 9 mm
.,_
~
pistol. All the aforementioned three persons were said to have
fired at Milind Vaidya and his associates indiscriminately, who
were sitting in the shed.
B
4. Body guard Dinanath Pawar, who examined himself as
PW-2, is said to have fired three rounds from his pistol on the
Maruti Car. Other body guard namely Sandeep Waghmare
(PW-3), is said to have chased the car upto some distance but
y ..
c did not fire any shot, although armed with a carbine. The
incident of firing lasted for a few seconds whereafter the Maruti
car sped away. Milind Vaidya sustained bullet injuries. Besides
six others, namely - Nishchal Krishna Chaudhari; Vinay
Narayan Akare; Babu Kashinath Mangela; Niteen Narayan
D
Mehar; Murugan V Tewar; and Vijay Kashinath Akare also
sustained bullet injuries. Three of his associates, namely -
Milind Gunaji Chaudhari, Vilas Gopinath Akare and Deepak
~ .
Sitaram Akare succumbed to their injuries.
5. All the aforesaid victims were immediately rushed to
E Hinduja Hospital, Mumbai where they were admitted for
examination and treatment. Post mortem examinations of the
three deceased were carried out on the next day. They were
found to have sustained bullet injuries on different parts of their
body and lead pieces were recovered therefrom.
F
6. It is worthwhile to mention here that a similar attempt
on the life of Milind Vaidya had also been made by unknown
persons three months prior to the incident in question. At that
time he had escaped with some injuries. He earlier used to
have a body guard for his personal safety. However, after the
-
G said incident he was provided with three body guards during
day time and two during night time. One of the guards was
•
provided with a carbine weapon while the other two were
provided with 9 mm pistols. Milind Vaidya used to sit alongwith
his workers at night time in the shed adjoining the foot-path of
H Mori Road, Mahim for the purpose of hearing the grievances
MOHD. FAROOQ ABDUL GAFUR v. STATE OF
1115
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]
of the people. At that time he used to be escorted by his bodyA
.. ,,
guards.
7. First Information Report was lodged on 4th March, 1999
at Mahim Police Station. The investigation of the case was
taken up by Pl Yashwant Puntambekar (PW-36). However,
having regard to the gravity of the offence the Commissioner
B
of Police, Mumbai, directed the Senior Police Inspector, CID
- Unit IV, to take over further investigation of the case, pursuant
-
1'
whereof Senior P.I. Bagul took over the investigation. Thereafter
Pl Bharat Tambe (PW-59) took over the investigation on c
06.03.1999. A Maruti car was located on 8th March, 1999 in
an abandoned _condition having been found parked in. Jain
Derasar Lane at Wadala. On inspection of the car one empty
shell of AK-56 rifle; 2 empties of 9 mm caliber pistols and two
empties of mouser pistols etc. were found. It was suspected
D
that the said car was used in the commission of the aforesaid
> )'
crime.
8. After appellant No.1 (Mohd. Farooq) was arrested on
13th March, 1999, the Joint Commissioner of Police (Crime)
granted permission to apply the provisions of Maharashtra
E
Control of Organised Crime Ordinance, 1999 to the present
case pursuant whereto the investigation was taken over by an
Assistant Commissioner of Police namely, Pradeep Sawant
(PW-61) from Pl Bharat Tambe on 26th March, 1999.